- It’s a long way to certiorari
- No Standing
- Mark Neugebauer
- Funding and legal teams
It is rather well known that The Australian Vaccination-risks Network (AVN) sought, through legal action in March 2022, to stop the rollout of COVID-19 vaccines in Australia.
It is also well understood that the substance of their case, as presented by affidavit, was dismissed in the Federal Court by Justice Melissa Perry, because the AVN (the Applicant) failed to demonstrate it had legal standing to continue proceedings against the Secretary of the Department of Health, Dr. Brendan Murphy (the Respondent). Essentially, because the COVID-19 vaccination programme affects the public, the AVN must demonstrate they have “special interest” beyond that of any ordinary member of the public. Indeed where the public at large is concerned it is highly likely that the respondent will challenge the applicant’s claim to standing, as happened here. More so, the quality of evidence received significant comment from Justice Perry throughout the ruling. AVN founder Meryl Dorey continues to describe this evidence as “devastating”.
Those familiar with the AVN, and Meryl Dorey, were not surprised to note that aspects of the ruling clearly stressed that claims made by Dorey relating to past political influence and current status of the AVN, along with purported harms caused by vaccines, were not evidentiary in nature, but merely the belief or opinion of Meryl Dorey herself. This same group of observers were equally unsurprised to see that a Notice of Appeal against the ruling and of the order to pay costs, followed on 22 June 2022.
Predictably, the appeal grounds began by arguing Justice Perry erred in applying Section 136 of The Evidence Act 1995, to those opinionated claims made in Dorey’s evidence. Section 136 limits use of evidence that may be “unfairly prejudicial”, or “misleading and confusing”. Particularly, the appeal contended Perry had given insufficient weight to Dorey’s opinion that the AVN was “the peak vaccines organisation in Australia”. Where “standing” was explicitly mentioned in the appeal notice, it is clear that Dorey again felt the AVN should be taken more seriously.
On 24 August 2022, the appeal was found to be incompetent, leave to appeal was refused and all costs were awarded against the AVN. Nonetheless the quest for standing continued. On 21 December 2022, Meryl Dorey penned a media release. It announced that a group of medical experts had filed a case in the High Court of Australia against Brendan Murphy. It alleges mRNA vaccines are “genetically modified organisms”, used in “an acknowledged” Phase III clinical trial and that COVID-19 poses no threat to babies and toddlers. Essentially the strategy was to convince the High Court “to acknowledge that [the medical experts] interest in preserving human life should allow them legal standing”, to challenge the extension of provisional approval for the Moderna Spikevax vaccine for children 6 months to 6 years. It also contended that belief does not disqualify a person from having standing.
As we will see below, this tactic is a revamp of one of the AVN’s initial cases heard by Justice Perry; the Mandamus case. On 16 March this year the High Court ordered that the matter be remitted to the Sydney Registry of the Federal Court of Australia. It has become known as The Babies Case and is listed on the website of participating solicitors, Maat’s Method, as The Australian Babies Case. There are six plaintiffs in total. In addition to the four professional plaintiffs are the Australian Vaccination-risks Network and Mr. Mark Neugebauer. Neugebauer was an applicant alongside the AVN in the original case. Update; The Australian Babies Case was discontinued on 12 April 2023.
Now, I am not a lawyer and have no legal training. Yet the manner in which the AVN advanced their initial case is worth reviewing. I would like to explore evidentiary claims made by Meryl Dorey and her solicitor in the context that they brought nothing novel to the case. Seperate from the legal determinations are very clear indications that the AVN presents itself as something it is not. A cursory look into claims made, reveal a history of deception and disinformation. Any win for the AVN has proven a loss for public health. An April 2014 Public Health Warning from the NSW Health Care Complaints Commission reinforces the role of the AVN in misleading the public about vaccines and vaccination schedules.
As noted in the ruling of Justice Perry, standing must be established before proceeding to determine the merits of their case. On 24 February 2022 the AVN sought to join with another applicant, Mr. Mark Neugebauer via an interlocutory application filed twenty three days after their initial affidavit, and just six days after the Secretary filed a notice of objection to competency. It was via that notice that the Secretary contended that the AVN lacked standing.
By seeking to join with Neugebauer (whose affidavit was filed that same day), the AVN thought they might have an ace up the sleeve, so to speak, with respect to standing. In paragraph  of the ruling, Justice Perry summed it up well:
AVN contended that, whatever the position with respect to its standing to institute the proceeding, Mr Neugebauer separately had standing… […] In this way, AVN and Mr Neugebauer sought to “cure” the lack of jurisdiction in the event that the Court upheld the notice of objection to competency.
It’s a long way to certiorari
As discussed above, the March 2022 proceedings involved more than one case. The Mandamus case targeted provisional registration of the initial three COVID-19 vaccines available to the Australian public, referred to throughout the ruling as the Three Vaccines. The ultimate aim was to secure a writ of mandamus by which the court would order the Secretary to reverse provisional registration of COVID-19 vaccines. The second case was a Judicial Review case and sought to target the provisional approval of Pfizer’s Comirnaty (tozinameran) vaccine permitting use among children 5 to 11 years from 10 January 2022. That approval is referred to throughout the ruling as the Children Decision. The AVN regarded the Children Decision as void, or basically illegal. The AVN and Mark Neugebauer sought certiorari to quash the Children Decision. A writ of certiorari has the power to set aside a decision made contrary to the law.
In his affidavit [p.20], solicitor Peter Fam refers to a 5 January 2022 letter he wrote to Brendan Murphy regarding the Children Decision. He informed Murphy of various errors and told him that his client regarded the decision as void.
I alerted Dr Murphy that if he did not commence the reconsideration process within 14 days of the date of my letter that my client would seek judicial review remedies in the nature of mandamus, certiorari and urgent interlocutory injunctive relief (and/or other orders including an order for costs) from the Administrative and Constitutional Law and Human Rights Division of the Federal Court of Australia.
As part of the government, the Therapeutic Goods Administration (TGA) is responsible for the registration of vaccines. However, the Secretary of the Department of Health has certain powers and obligations laid out in the Therapeutic Goods Act 1989 (TG Act). The applicants sought to trigger some of these specific responsibilities.
The sections and subsections of the TG Act the AVN highlighted in the mandamus case are 9A(1), 29D, 30(1)(a) and 30(2)(a). The aim was to have the court order the Secretary to “exercise his statutory powers and duties” as listed under these sections, and therefore “suspend or cancel the provisional approval already given” to the Three Vaccines. Section 29D and subsections 30(1)(a) and 30(2)(a) speak to the level of harm that the AVN expected the court to accept COVID-19 vaccines cause, and how to respond. 29D deals with suspension of registration or listing. It reads: “(1) The Secretary may by written notice given to a person… suspend the registration or listing of the goods if:”
(a) the Secretary is satisfied that:
(i) there is a potential risk of death, serious illness or serious injury if the therapeutic goods continue to be included in the Register; and
(ii) it is likely that the person will, within the period of the suspension, be able to take the action necessary to ensure that the therapeutic goods would not cause a potential risk of death, serious illness or serious injury if the therapeutic goods were to continue to be included in the Register;
The advice overlaps with reference to section 30 and the subsections highlighted by the AVN. That section deals with cancellation of registration or listing if:
(a) it appears to the Secretary that failure to cancel the registration or listing would create an imminent risk of death, serious illness or serious injury; […]
(2) it appears to the Secretary that the quality, safety or efficacy of the goods is unacceptable.
There are numerous problems with AVN evidence, including that it is peppered with well known anti-vaccination tropes, which will be examined below. Most significantly however, is that reported adverse events from the TGA Database of Adverse Event Notification, and not proven adverse events from the TGA website, were submitted. Important explanations about the difference available on that, and other sites the applicants sourced data from, were ignored. It’s also clear from the selected sections of the TG Act above that the scale of threat posed by COVID-19 itself has been ignored. One must wonder at the “potential risk of death, serious illness or serious injury” Australians would face if the vaccines were removed from provisional registration. Now, let’s address section 9A(1).
Section 9A(1) reflects a rather administrative duty:
The Secretary is to cause to be maintained a register, to be known as the Australian Register of Therapeutic Goods, for the purpose of compiling information in relation to, and providing for evaluation of, therapeutic goods for use in humans.
Well, the AVN were of the mind that the Secretary:
[H]as failed to reasonably obtain, monitor, consider, assess, evaluate and balance data which was or should have been before [the Secretary] about the [Three] Vaccines .
They went further to suggest he should have by that time acted to suspend or cancel the provisional registration of the vaccines, because they pose an imminent risk of death or serious injury. As such the Secretary had breached his duty to “to cause to be maintained” the Australian Register of Therapeutic Goods (ARTG).
Via the Judicial Review case the AVN sought an order quashing the provisional approval by the Secretary, of the Pfizer Comirnaty vaccine for 5-11 year olds. The section of the TG Act that the AVN cited was 22D. This section deals with provisional determinations. This was cited because the AVN also sought an order quashing any determination made by the Secretary pursuant to section 22D, that an indication of the vaccine:
[W]as the treatment, prevention or diagnosis of a life-threatening or seriously debilitating condition for children aged 5 to 11 years of age.
Put simply, they did not accept the determination that COVID-19 vaccination could prevent serious symptoms in 5-11 year olds. Over a number of paragraphs, they outline on page 5 of this submission that their issue is with the safety and efficacy of a therapeutic good (the vaccine). Again they reinforce that the Secretary must “cause to be maintained” the ARTG. This also had me pondering the anti-vaccine mantra that children aren’t made ill by SARS-CoV-2 infection. In any event, with the court not accepting they were a “person aggrieved”, both the AVN and Neugebauer did not have standing to seek certiorari to quash the Children Decision .
AVN evidence was significantly biased toward anti-vaccination rhetoric, false claims and database misrepresentation. There is a large amount of evidence and it is unrealistic to cite every error and irrelevance contained therein. Of eleven affidavits and supplementary affidavits listed on the AVN website, nine are still available. Also available is their submission in response to the Secretary’s notice of objection to competency. Perhaps most surprising with respect to anti-vaccination bias was Meryl Dorey’s affidavit. It contained nothing relevant to Australia’s COVID-19 vaccination programme. Rather, it opens with a subjective hearsay synopsis of Dorey’s purported experience with her son’s supposed reaction to three different vaccines, and similar accounts from other AVN members. Regrettably, the debunked link between MMR and autism is immediately reinforced.
In fact the term “autism” arises twenty-three times throughout the affidavit with the MMR vaccine unceasingly blamed. This is because a great deal of space is given over to AVN-specific material and a 2013 “report” by one Trevor Wilson. Its title is A Profile of the Australian Vaccination Network 2012. Twenty references to “autism” are within this report (pp.34-77). It also contains survey results including random statements blaming vaccines for developmental problems, including ADHD, asthma, dyslexia, chronic fatigue and many more (see p.55). There is praise for Dr. Andrew Wakefield, criticism of the medical profession and praise for Meryl Dorey. Her role in what she told the court is “the peak vaccines organisation in Australia”, is clear. On page 61 we read:
Meryl Dorey spoke to my university naturopathy class about the risks and the lack of scientific evidence to support vaccination. I was devastated. I had never questioned vaccination before and I was very disappointed in myself.
Another member of the AVN states [p.63]:
I didn’t know all vaccines were bad, just thought the MMR was. […] I joined the AVN… went to an AVN seminar which is what finally swayed my partner – the rest is history.
Justice Perry agreed to admit Dorey’s evidence only if subject to section 136 of the Evidence Act . Perry’s criticism of specific claims from Dorey is itself lengthy. Yet there are some that demand airing here. As has become widely known Dorey made a number of statements that sought to elevate the importance of the AVN and of herself. For example, Dorey claimed the AVN lobbied federal parliament and was successful in bringing about a conscientious objectors clause amendment to the Child Care Payment Bill 1997. Perry states :
That evidence is objectionable for a number of reasons, including that it is inadmissible opinion evidence and an inadmissible conclusory statement. […] The opinions and conclusory statements otherwise objected to… are received only as statements of Ms Dorey’s belief, in line with my ruling.
For a number of reasons, this strikes me as one of the most crucial aspects of the ruling. It should set the tone for understanding that conclusory statements, and statements of Meryl Dorey’s belief are fraught with misdirection. A review of the facts relating to the AVN’s 1997 lobbying, reveals a campaign of anti-vaccine disinformation designed to motivate rash, emotive decision making, suited not to benefit public health but rather the aims of Meryl Dorey and the AVN. Parts of the Senate Hansard, including debate surrounding amendments to the Bill, read like a riot of anti-vaccination propaganda. Former Greens leader, Senator Bob Brown (a General Practitioner), was furnished with information from the AVN and convinced of its merits. On page 8726 he quotes from “reports from three parents”. He wrongly tells the Senate that vaccines:
- Contain many toxic ingredients including formaldehyde, a known cancer-causing substance. There is no safe level in vaccines.
- The rubella and chicken pox vaccines are cultured on the cell lines of aborted foetuses.
- Vaccines contain many bacteria and viruses other than the ones which they are supposed to immunise against.
- The polio vaccine was contaminated with 40 known monkey viruses—one of which, SV-40, is thought to cause cancer and has also been linked with the development of AIDS.
- Polio, measles, mumps, rubella and chicken pox vaccines can infect the person vaccinated as well as contacts, with the diseases the wild viruses cause.
- Vaccines don’t guarantee protection.
- The USA pays a fortune in compensation (see what this actually means).
Readers may remember Tasmanian Catholic conservative independent senator, Brian Harradine. Responsible for the veto on the importation of RU486 and the banning of Australian foreign aid being used to fund family planning that involved abortion, his reaction to hearing the false claim about aborted foetal cells was predictable. On page 8729 of the Senate Hansard, Harradine states that before he decided how to vote he wanted to know if the NHMRC sought to recommend compulsory vaccination for chicken pox, because referring to the AVN information, he needed to know if production using aborted foetus cell lines was employed in each state and territory in Australia. Harradine felt it was important for informed consent and as a reason for conscientious objection.
The human diploid cells used in vaccine production are descendant cells and at no time formed part of a foetus. Their use in vaccine production is supported by the Vatican. Nor do any vaccines contain aborted foetal cells. Yet understandably, this wasn’t common knowledge in parliament and Harradine awaited expert advice. He held the balance of power in the Senate and would never abandon his moral high ground with respect to any matter related to abortion. Fortunately he was given appropriate information about the cell lines used (see p. 8792). Nonetheless, the lesson is that anti-vaccine disinformation curated by the AVN influenced one of Australia’s most powerful senators at the time of voting on vaccine-related legislation.
The impact that the AVN had on Bob Brown was clear. He claimed the AVN side of the story was the opposite to “the so-called intelligent people”, contended there “are serious arguments against vaccination” and argued that it was “not valid to say an intelligent parent or responsible person is going to have their child vaccinated”. He was fooled by the AVN’s use of the base rate fallacy with regard to the pertussis vaccine. Advocating for the notion that GP reports of natural immunity should justify foregoing immunisation, he said (p. 8734):
I put it that that natural immunity is much more likely to be protective of the child than the much failed record of artificial immunity coming from vaccination.
The amendments were included in the Act and are best represented here. In July 2013 Bob Brown publicly distanced himself from the AVN in an open letter. In it he wrote:
I do not support AVN’s campaign against public vaccination. […] It is true that in the 1990s I endorsed the right of true conscientious objectors against compulsory vaccination. However, my view then, as now, was that vaccination is in the interests of public health and should be promoted.
The Daily Telegraph reported this was likely related to a campaign by the Greens “to eliminate any suggestion they sympathise with the AVN”. And:
Last month, Greens senator and health spokesman Richard Di Natale introduced a motion calling on the AVN to disband and cease its campaign against vaccines. The motion passed unanimously.
“The claims made by the AVN, and particularly by their founder, Ms Meryl Dorey, beggar belief,” Dr Di Natale declared to the Senate.
“Despite being corrected numerous times by health professionals, scientists and so on, they continue to propagate outright myths about vaccines and their safety.”
Meryl Dorey responded by writing a blog post falsely accusing Di Natalie of supporting compulsory vaccination, and using that allegation as a basis for seeking donations. A 2020 content analysis of that blog analyses persuasive cues employed by the AVN.
On 2 November 2015 the second AVN lobbying attempt had zero impact. Then, the Senate Community Affairs Legislation Committee was hearing submissions on the Social Services Legislation Amendment (No Jab No Pay) Bill 2015. Immunisation rates had fallen as antivaxxers exploited the conscientious objection clause. The AVN submission is here. As apparent in the Hansard on page 2, the hearing began as expected when notorious anti-vaccine researcher Dr. Lucija Tomljenovic presented for the AVN. Shortly after, Dorey presented her account of her son’s adverse reaction. She then referred to her 1997 experience with Bob Brown, casting him as a supporter, in complete dissonance to his public rejection of the AVN two years earlier. She then likened the current Greens party to George Orwell’s Animal Farm and criticised Senator Richard Di Natale. Shortly after, Di Natale himself was introduced by phone. The hearing quickly descended into farce when AVN members attacked him for asking why they misrepresent themselves.
You can listen to the exchange by using the player to the left, download this mp3 file, or even read along with the full exchange. The angry men are Greg Beattie and Brett Smith. In stark contrast is the evidence presented by Stop The Australian (Anti-) Vaccination Network (SAVN). From pp. 9-11 three members discuss implications of the Bill, reveal flaws in the AVN expert evidence from Dr. Tomljenovic, financial irregularities of the AVN and the real dangers posed by anti-vaccination lobbyists. Still, the AVN had to have the last word and nine days later submitted this disjointed right of reply which in no way advanced their argument against the proposed amendment.
The point to this diversion is to reinforce that the AVN and Meryl Dorey’s frequent claims of lobbyist activity is peacock terminology for calculated deception and meddling in the process of public health legislation. In 1997 it was made clear that rates of vaccination were insufficient and the AVN interfered. In 2015 it was again made clear rates of vaccination were insufficient and again the AVN interfered. Meryl Dorey refused to answer Di Natale when he asked:
I have asked a specific question. I am keen to get an answer. It is actually quite a serious issue because a ruling has been made and I am concerned that this organisation is representing itself in a capacity in which they are not able to do so. I think it is important that we understand the rationale for them representing themselves as a group, which they are not entitled to do. That is where I would like to start.
Richard Di Natale’s observation that the AVN falsely represents itself, has more relevance to the Federal Court case. In attempting to establish standing the AVN argued it had similar objectives to the TG Act. Clause 43 of the AVN constitution outlines the objectives [p. 29], . They submitted [p. 7]:
The objectives of the AVN are consistent with the objectives of the TG Act in that both sets of objectives are concerned with among other things the safety and efficacy of the [Three] Vaccines used in Australia.
The AVN has currently about 2000 members and it is recognised as the peak national association concerned with providing information which evaluates the balance between safety and efficacy of vaccines in Australia.
The AVN also argued that the Australian public expects such a group will exist. Justice Perry deals with these and other claims of importance put forward by the AVN in a splendid paragraph :
However, the evidence rises no higher than to establish that it is Ms Dorey’s view that AVN is the peak vaccines organisation in Australia. There is no evidence, for example, that AVN is regarded as such by government, whether acknowledged in funding from government sources or otherwise […]. Nor is there any evidence that AVN is regarded as a peak body by recognised or established peak organisations or in the public eye. Moreover, there is no evidence that AVN is a body representing the views of persons recognised as experts in the field of immunology and vaccines. To the contrary, membership is open to any natural person who supports AVN’s objectives and whose application has been approved by the committee (see above at ). Further, the evidence that the Australian community expects that there will be a body such as AVN to concern itself with issues such as those raised in the present case does not rise above the status of bare assertion by Ms Dorey.
Justice Perry’s words are reinforced by this audio grab from Dorey’s vodcast last month [mp3]. Dorey labels the COVID-19 vaccine “an experimental gene modification injection” and blames it for deaths in children following meningitis, streptococcus and influenza infections. “Healthy children do not die from these things”, Dorey falsely declares. The AVN advise against all childhood vaccination.
How Meryl Dorey views herself and the AVN, manifest in the ultimatum and demands sent to Health Minister Greg Hunt in June 2021. This approach was repeated in correspondence to the Secretary. In court, Mr. Robinson SC, for the AVN, referred to these as “letters of demand” . On page 1 of their submission, the AVN refer to the respondent receiving an “alarming number of reports of deaths and adverse events”, due to COVID-19 vaccines.
Despite the fact these are coincidental events, this is ignored and they again argue that because the Secretary has failed to cancel the provisional registrations of the vaccines, he has also failed in his duty to “cause to be maintained the ARTG”.
In court the Secretary objected to the evidence with “an extensive list of objections”. The bulk of which observed:
[T]he evidence was conclusory in nature, inadmissible opinion evidence, and/or hearsay in nature if the evidence was being adduced to prove the truth of the representations asserted.
In other words; opinions of the AVN aren’t fact, so should not justify legal action. The Secretary accepted the evidence could be admitted if subject to section 136 of the Evidence Act, within this scope :
- Evidence of deponent’s understanding or belief only.
- Where evidence is based on previous representation(s) made by others, it is not admitted to prove the truth of those representations.
- Where evidence contains opinion, it is not admitted to prove the existence of facts about which the opinion was expressed.
The restrictions placed on AVN evidence were most fortunate. Dorey’s affidavit is curated to present a misleading image of the AVN as an organisation offering something positive to public health, when the opposite is true. It brings to mind examples of aggressive anti-vaccine rhetoric, and studiously avoids Meryl Dorey’s role in promoting conspiracy theories about the pandemic and vaccine injuries.
It should have no place in a court of law. The legal fraternity in Australia could learn from the media in Australia. The latter, after being exploited and misled by Dorey (pictured), now refuse to engage with her. Unless of course they are anti-vaccine.
Leaving Dorey aside, there were also notable problems with the supporting affidavits of solicitor Peter Fam. His initial affidavit includes fifty-five references. These include titles of a number of papers cited by the applicant (the AVN) in correspondence to the Department of Health, Greg Hunt and Dr. Brendan Murphy, along with other scientific papers and references to correspondence. Some are papers that may question the safety or necessity of COVID-19 vaccines, but none present evidence that isn’t already addressed by health authorities; such as waning immunity or cardiac inflammation. Certain articles are immediately recognisable by those who combat anti-vaccination disinformation and rhetoric, either by author, content or associated institutions. For example on page 15, Fam cites Electronic Support for Public Health-Vaccine Adverse Event Reporting System (VAERS), by Harvard Pilgrim Health Care Inc. This is also widely known as the Lazarus report, after the name of the principle investigator. I discuss its use by antivaxxers exploiting VAERS here under VAERS Underreporting.
Use of this report is an example of decontextualisation. Raw VAERS data which are themselves decontextualised, are presented with the aim of convincing one’s audience that vaccine induced fatalities are high. A snippet from the Lazarus report is then cited: “fewer than 1% of vaccine adverse events are reported”. That most adverse reactions are minor, transient irritations such as itch, rash, swelling and redness at injection site, along with headaches, arm pain, nausea, vomiting or fever, is omitted. This 2014 report notes only 11% of reported reactions are serious. More so, the data accessed by Lazarus et al, from December 2007 to September 2010, are unrelated to COVID-19 vaccines. Indeed in the USA, persons vaccinated against COVID-19 are given literature on how to report side effects and encouraged to do so. The V-Safe program follows up with text messages asking about any symptoms or changes to health.
On page 10 is listed a May 2021 paper, by Jessica Rose that also focuses on VAERS data and is published in Science, Public Health Policy and the Law. This publication is run by the Institute for Pure and Applied Knowledge (IPAK). IPAK in turn is operated by well known anti-vaccination activist James Lyons-Weiler. In February 2019, the AVN donated $5,000 USD to Lyons-Weiler to help fund a study of vaccinated vs non-vaccinated children. The resulting 2020 paper was heavily criticised for methodological flaws and ultimately retracted from publication.
James Lyons-Weiler speaks of Australian vaccine conspiracy theorist and AVN supporter Judy Wilyman, in glowing terms, claiming she, “has done a great service to humanity” and “deserves a table at the head of academia”. He was also the reviewing editor of a November 2020 paper Wilyman had published in the IPAK journal. Misapplication of the Precautionary Principle has Misplaced the Burden of Proof of Vaccine Safety, rehashes a number of dubious claims Wilyman made in her original thesis, and further alleges vaccines are unsafe because “governments” have not applied the precautionary principle. Peter Fam includes statements from the Jessica Rose paper that contend people should be warned of serious unconfirmed adverse events before being vaccinated as this is proper application of the precautionary principle. This is a popular anti-vaccination sentiment because the precautionary principle is supposed to be applied where scientific knowledge is absent.
It’s not surprising we find these references to the precautionary principle. As noted by Justice Perry , Meryl Dorey’s initial letter to Minister Greg Hunt, included this very belief, via their:
…demand, based on the precautionary principle, that the current mRNA and viral vector vaccination experimental trial be immediately halted until independent scientific safety and efficacy evaluations can be unequivocally established.
The next paper cited by Fam suggests there was insufficient animal testing prior to clinical testing of COVID-19 vaccines. This is incorrect. Other papers cited, advance the fact children and young people have a lower death rate from COVID-19 than older people and thus, do not need vaccinating. On pp. 13-14 Fam quotes from a withdrawn paper, observing that “the journal does not state why the paper was withdrawn”. Yet a visit to the paper’s URL provides clear access to the journals withdrawal policy which lists reasons such as errors or “infringements of professional ethical codes”. Fam makes reference to the UK Yellow Card reporting system and comments made by Dr. Tess Lawrie in May 2021 are quoted. Regarding Lawrie, the BBC reported in part in October 2021:
Dr Tess Lawrie – a medical doctor who specialises in pregnancy and childbirth – founded the British Ivermectin Recommendation Development (Bird) Group.
She has called for a pause to the Covid-19 vaccination programme and has made unsubstantiated claims implying the Covid vaccine had led to a large number of deaths based on a common misreading of safety data.
The UK Yellow Card passive reporting system collates data in the same way as the US VAERS system. Raw data have not been assessed. A summary of Yellow Card reporting was updated on 8 March 2023 on the government website:
For all COVID-19 vaccines, the overwhelming majority of reports relate to injection-site reactions (sore arm for example) and generalised symptoms such as ‘flu-like’ illness, headache, chills, fatigue (tiredness), nausea (feeling sick), fever, dizziness, weakness, aching muscles, and rapid heartbeat. Generally, these happen shortly after the vaccination and are not associated with more serious or lasting illness.
Peter Fam’s affidavit includes Genuine Steps and Scientific Papers referred to within on p.15. This opens with an account of Dorey’s letters to Greg Hunt. The first was 24 May 2021 and it received a response on 8 June 2021. Both Peter Fam and Meryl Dorey felt the concerns went unaddressed. Next was an 18 June 2021 letter to Greg Hunt which you can read here. This outlined Dorey’s demand for the government to “immediately cease its obviously harmful and deadly campaign using experimental COVID injections on unsuspecting men, women and now, children”. Hunt was given seven days to respond or face legal action. A day before the 25 June 2021 deadline, Dorey devoted about three minutes at the end of a Facebook live video to priming her viewers. Download the mp3 here, or hit the play button below.
Three hundred had died from “the jab”, viewers were told, and “tyranny and communism had descended on Australia”. I’ve written about this before, unconvinced it was different to the 2016 misappropriation of donations. As it turned out, it was another five months before solicitors were sighted and genuine terms and conditions were drafted. Nonetheless, Hunt did not reply. Next was the 26 November 2021 correspondence to Dr. Brendan Murphy, which referenced “unprecedented levels of death and permanent injuries occurring following the administration”, of COVID-19 vaccines. Again a response within seven days was demanded.
If you’re trying to recall that stage of the pandemic, I can help. Two months earlier we had learnt that less than two percent of people admitted to intensive care in NSW at the beginning of the most recent outbreak were fully vaccinated. Two weeks earlier, ninety-two percent of those in ICU in Victoria were not fully vaccinated. It was the same in the USA and the UK. There were indeed “unprecedented levels of death and permanent injuries”, but not from vaccination. Unsurprisingly, Brendan Murphy did not reply. On 16 December 2021 as the unvaccinated continued to die, the AVN sent another letter insisting:
[That] the provisional approvals ought to be suspended or cancelled on the non-exhaustive basis that there is information and evidence that each of the Registrations have caused historically unprecedented adverse events including deaths, illnesses and injuries… and that insufficient weight has been placed on that information.
Dr. Murphy was given until Christmas Eve to respond before the applicant would seek the court’s intervention. Yes, they wanted Brendan Murphy to spend his last exhausted week before Christmas, removing access to the vaccines that were irrefutably saving lives across Australia and the developed world. Mr. Fam included nineteen “scientific papers” presented by the AVN in his affidavit including seventeen cited within the final letter to Brendan Murphy. They include peer reviewed letters, preprints and peer reviewed papers. On examination these do not scientifically support cessation of the vaccination programme. As with papers cited by Peter Fam himself, there was undue focus on waning immunity, the impact of variants of concern, that vaccination does not guarantee prevention of transmission, natural immunity, breakthrough infection and reports of vaccine-induced myocarditis and pericarditis in adults and children.
Regrettably, included was the heavily criticised October 2020 feature in the British Medical Journal by vaccine critic Peter Doshi. That article created uncertainty around clinical trials, by arguing they weren’t designed to determine if vaccines would reduce hospital and ICU admissions, or death. At the time it was the most cited article by anti-vaccine groups. Also cited was a preprint that today remains unpublished. It discusses “clinically trained reviewers” who found inconclusive VAERS data, were supposedly conclusive after all. Lead author Scott McLachlan, entertains a number of COVID conspiracy theories. He has alleged COVID-19 is a scam, linked Bill Gates to eugenics and is a member of the vaccine-critical group HART.
Also cited was, Increases in Covid-19 are unrelated to levels of vaccination across 68 countries and 2947 counties in the United States, by Subramanian and Kumar. Five days before Dorey wrote her final letter, these findings were shown by Andreas Backhaus, to be significantly limited. Another paper involved postmortem evaluations which “possibly” linked deaths to COVID-19 vaccines. Another preprint analyses reinfection with variants of concern, and found those vaccinated were more susceptible than those with natural immunity. This paper is now published, but with disease and death possible side effects of infection, natural immunity is not a realistic alternative to vaccination.
A number of the papers dealt with the reality that vaccination did not absolutely prevent transmission, and that as vaccination rates rise so does the number of COVID-19 cases in vaccinated persons. Due to the base rate fallacy, this can create the illusion that vaccines are ineffective; the same tactic used on Bob Brown twenty-five years earlier. This is especially pertinent to Australia with a high rate of COVID-19 vaccination. Within the findings of some papers were recommendations for mask wearing and concerns about the lifting of COVID-19 restrictions. This is inconsistent, given that Meryl Dorey contends the pandemic is a scam and advocates rejection of all precautions. It is pointless to continue with explanations. In the main, the research reflects issues that Australian health authorities are well aware of. Alone or together, these papers don’t present cause to overturn a non-mandatory vaccination programme.
One supplementary affidavit consisted of seventy-seven pages from the TGA’s DAEN, listing 382 reports of adverse events in children aged 5-11 years, who had received the Pfizer vaccine between 10 – 31 January 2022. Again, it must be stressed these are suspected, and not confirmed, adverse events. The TGA make this plain with an information box at the top of search results. In a six point prelude explaining his review of DAEN Peter Fam fails to report the unreliability of these data. As such the affidavit contains decontextualised information and would mislead the court.
It’s impossible to visit the DAEN page and not understand this. Below is a screenshot of the advice visitors view before accessing the database itself.
DAEN Information splash screen on TGA website
Another lengthy supplementary affidavit of Peter Fam includes a full copy of Cumulative Analyses of Post-authorization Adverse Event Reports, for the BioNTech Pfizer vaccine (BNT162b2) prepared by Worldwide Safety, Pfizer. Dated 28 February 2021, it is a comprehensive, confidential proprietary document, listing adverse reactions from around the world. It is indeed the sort of document the TGA rely upon. The Summary and Conclusion read:
Review of the available data for this cumulative PM experience, confirms a favorable benefit: risk balance for BNT162b2.
Pfizer will continue routine pharmacovigilance activities on behalf of BioNTech according to the Pharmacovigilance Agreement in place, in order to assure patient safety and will inform the Agency if an evaluation of the safety data yields significant new information for BNT162b2.
The same affidavit includes a 28 November 2021 WHO report on Omicron which was designated a variant of concern two days earlier. Discussing severity of Omicron, the report includes:
All variants of COVID-19, including the Delta variant that is dominant worldwide, can cause severe disease or death, in particular for the most vulnerable people, and thus prevention is always key.
Under “Effectiveness of vaccines” the authors conclude:
Vaccines remain critical to reducing severe disease and death, including against the dominant circulating variant, Delta. Current vaccines remain effective against severe disease and death.
This affidavit provides detailed insight into the monitoring of Pfizer’s COVID-19 vaccine and the seriousness with which variants of concern are regarded by world health authorities. Since that time Pfizer has modified vaccine production to accomodate SARS-CoV-2 mutations. Ultimately, this affidavit supports the fact that vaccination remains an important preventative option.
Another affidavit is an expert report from one Lisa Mitchell. Dated 29 June 2022, it appears to be an updated version of her January affidavit, likely in preparation for the appeal. Lisa has impressive qualifications with a CV and career to match. Describing herself as an “expert” she is also a qualified statistician. Yet Mitchell has no medical, epidemiological or pharmacovigilance training. This becomes clear as she presents page after page of raw DAEN data without qualifying the unreliability of such data. On page 14 complete with bar graph, is a synopsis comparing non-COVID-19 vaccine to COVID-19 vaccine adverse reaction reports. Respectively they are 1 per 10,000 doses and 23 per 10,000 doses as at 31 January 2022. Indeed by 5 June 2022 the rate has slightly fallen to 21.87 reports per 10,000 doses.
Despite the fact her graph clearly states “Adverse Events reported per 10,000 doses”, Ms. Mitchell states in paragraph; “the likelihood of someone having an adverse event as the result of a Covid-19 vaccine was 23 Adverse Events per 10,000 doses”. And:
Using the TGA’s more up to date data, the likelihood now of someone having an adverse event as the result of a Covid-19 vaccine as at 5 June 2022 is 21.87 Adverse Events per 10,000 doses. This 20 times worse than Non-covid (sic) times…
However, this is incorrect. These data do not show an increase in adverse events, rather an increase in reporting of adverse events. An increase in reporting of this magnitude is to be expected when the entire adult population is being vaccinated. I’ve already established that the bulk of established adverse events are minor, so the reports that may eventually be established as genuine adverse events are unlikely to be of serious events.
I do not know Lisa Mitchell and cannot comment on her motivation. I can however conclude that her report is fraught with decontextualisation in the tradition of OpenVAERS. It has the potential to misinform and dissuade people from vaccination. It should not be presented as evidence in a court of law.
Matters relied on by the AVN in support of its case for standing 
In order to have a case heard by a court one must demonstrate that one has a right to be heard and that the court has legal jurisdiction to make a decision. In this case it was up to the applicants to prove to the court they had a legal right, called standing, to have the court order the Secretary of the Department of Health to stop the COVID-19 vaccination programme. Under federal law this is a complicated business.
The AVN argued it had standing under section 39B of the Judiciary Act 1903, and were also a “persons aggrieved” under section 5(1) and section 7(1) of the Administrative Decisions (Judicial Review) Act 1977 (ADJR). Looking at the ten points relied on by the AVN in pursuit of standing, a general theme is clear. Namely, the AVN regards itself as a pre-eminent arbitrator of vaccine policy with respect to public health and that information it presents should be taken as fact and acted upon as they instruct.
The Secretary begged to differ. As Justice Perry observed :
However, by a notice of objection to competency filed on 18 February 2022 the Secretary contended that AVN lacked standing to seek the relief sought in the Mandamus Case and Judicial Review Case and that there was therefore no “matter” in the constitutional sense. The Secretary also contended that AVN was not a “person aggrieved” for the purposes of ss 5 and 7 of the ADJR Act, and that the proceedings were therefore not competent insofar as those provisions were relied upon to engage the jurisdiction of the Court.
As outlined in paragraph eight above, the AVN sought leave to join with Mark Neugebauer, who separately argued he had standing and was a “person aggrieved” under the ADJR Act. Given the volume of evidence filed by the AVN and the potential cost to the Secretary in refuting this at trial, Justice Perry agreed with the Secretary that it was appropriate to determine standing before trial. She ruled that neither individually nor cumulatively did the matters relied on (screenshot above) demonstrate that the AVN had special interest above an ordinary member of the public. The AVN had itself stressed that its objectives involved informing the public about vaccine safety, choice and alternative views. Thus, as will come as no surprise to AVN observers, it is axiomatic that the AVN is not concerned with enforcing the TG Act.
More so, Justice Perry observed registration of the three COVID-19 vaccines under the TG Act does not mandate their administration. Nor would there be deprivation of choice about taking the vaccine. Where vaccine mandates did occur, they were the result of workplace policies or enactment of legislation, and not an automatic outcome of registration of the Three Vaccines under the TG Act . Nothing about the registration of vaccines impacts on the ability of the AVN to pursue their objectives. Indeed this author would note that the registration of the Three Vaccines has enabled unprecedented expansion of the organisation, both in the real world and online, increased financial profit and accelerated pursuit of their objectives. Thus, when one reads that “the AVN has suffered psychological and emotional harm and injury due to or in connection with the Three Vaccines”, seperate from adverse events, one remains dubious. Citing Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health [ruling], Perry observed:
[T]he fact that a body such as AVN may, in the exercise of free speech, seek to influence public opinion and government views in pursuit of its objects, does not translate into a right of standing to pursue proceedings in a court of law.
Nonetheless, the claim that Meryl Dorey and members of the AVN suffered psychological and emotional harm and injury because of the Three Vaccines, and children of members suffered adverse effects from other vaccines was accepted by Justice Perry. She accepted that Dorey is emotionally impacted by harm caused to her son by vaccines. However, no expert or supporting evidence was presented to confirm the claims of harm and injury. As such the claims were inadmissible evidence and hearsay and accepted only as subject to section 136 of the Evidence Act. They have the same weight as Ms. Dorey’s personal beliefs and do not constitute “special interest”. Even if it could be established that an individual member had suffered harm and acquired standing, this does not by extension give the AVN standing.
Justice Perry rejected the AVN’s claim that its “objectives are consistent with the objectives of the TG Act”, and that this supports their claim to standing. In defining the role of the TG Act with respect to safety, efficacy, quality and availability of therapeutic goods, she observed, “central to which is the conduct by experts in the field”. Fortunately the AVN’s claim that it lobbies governments and writes submissions to parliamentary committees, in conjunction with the demands sent to Dr. Brendan Murphy did not strengthen its case for standing. As noted above, actual submissions are rare. In reality the bulk of AVN-directed lobbying is in the form of retributory mass emailing campaigns directed at those who dare disagree.
The AVN submitted they were pursuing the mandamus case to test the validity of the decisions. If it was accepted that the AVN had standing, then any member of the public with the same grievance would also have standing. Thus the AVN’s legal position doesn’t extend beyond an ordinary member of the public. Ultimately, the same ruling was made for the mandamus case which sought to overturn provisional registration of all COVID-19 vaccines and the judicial review case which sought to overturn provisional approval of Pfizer’s vaccine for 5-11 year olds. Both cases were designed to use the Therapeutic Goods Act to compel the Secretary to act. To support its contention that it was a “person aggrieved” the AVN relied upon the same factors as it did to establish standing. Perry goes into detail as to why the applicants aren’t “persons aggrieved” for the purposes of the ADJR Act. There is no real point to examine that discussion. Unable to demonstrate grievance, or that they would be adversely affected, the AVN is not a “person aggrieved”.
Justice Perry ruled the following for each case:
a) the Application is not competent in so far as it is made under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) as the applicant is not a “person aggrieved” for the purposes of s 5 of the ADJR Act;
b) in so far as the Application is made under s 39B of the Judiciary Act 1903 (Cth) (Judiciary Act), the applicant does not have standing to challenge the TGA Decision; and
c) by reason of the ground identified in paragraph (b) above, the Application does not involve a real justiciable controversy as to some immediate right, duty or liability between the applicant and the respondent such as to constitute a “matter” in respect of which the Court has jurisdiction vested in it in accordance with Chapter III of the Constitution.
In examining the affidavits submitted by Mark Neugebauer, one notes his personal circumstances would have been better served if he had challenged his specific grievances in South Australian courts. Unsurprisingly the court ruled he does not have standing. In order to join as a second applicant (the joinder applicant) Neugebauer needed to demonstrate a special interest, which he was unable to do. Neugebauer sought relief through the mandamus case because in refusing to be vaccinated in accordance with the Emergency Management Act 2004 (SA), he had lost his job as a disability support worker. He also sought relief via the judicial review case. Mark Neugebauer is a foster parent and the Department of Child Protection (DCP) have legal guardianship over his foster child. In April 2017 a DCP supervisor signed consent for the foster child “to be provided with any vaccinations required” .
Since early 2021 when the Pfizer vaccine was provisionally approved, Neugebauer had “regularly corresponded” with the DCP to stress that he did “not wish my foster child to receive such a vaccine, even if provisionally approved for his age group.” On 14 February 2022 Mr. Neugebauer was informed the DCP’s position was that all eligible children should receive the vaccine, and he was to make an appointment. The following day he replied:
1. My wife and I do not support our foster child receiving the provisionally approved Pfizer vaccine; and
2. That as a foster parent, I am a mandated notifier at law, and that I am required by law to notify the DCP if I suspect on reasonable grounds that a child or young person is, or may be, at risk of harm, and that I believed that the DCP’s intention to vaccinate my foster child puts [the child] at risk of harm.
In correspondence with a social worker organising his foster child’s vaccination appointment, it is mentioned that Mr. Neugebauer had requested holding off until the Moderna vaccine is approved for 5-11 year olds [p.56]. However, this doesn’t fit with Neugebauer’s position in rejecting vaccination for himself [pp. 24-37], which highlight anti-vaccination avoidance tactics of the time. Nor does it resonate with the strategy of the Babies Case in which Neugebauer is a plaintiff. Evidence prepared in that December 2022 affidavit contends that Pfizer and Moderna vaccines are “genetically modified organisms” [para. 48], and the plaintiffs interest is in “preserving human life”.
In dismissing Neugebauer’s right to standing Justice Perry made some salient observations. Seeking to overturn registration of the three COVID-19 vaccines as a means to rectify termination of his employment, is incompetent. The applicants argued that had the registration been cancelled the Order to be vaccinated, “would have ceased to have been effective and Mr Neugebauer would today remain employed in the disability sector” . The fact is that regardless of the Secretary’s hoped for actions in suspending or cancelling registration of COVID-19 vaccines, these decisions only operate prospectively. This can’t change the fact that when his employment was terminated, the vaccines were registered and Neugebauer had not complied with a valid order from his employer on the direction of the SA government. Thus he was not a “person aggrieved” with respect to the mandamus case. Indeed, as he argued via his own affidavits that his very complaint was termination of employment.
Similarly, in seeking to join the judicial review case the applicants submitted that because he is a foster parent, Neugebauer’s personal interests are adversely affected by the Children Decision and determinations under section 22D of the TG Act. The genuine care, love and family life afforded his foster child are not in question, nor is the fact that Neugebauer holds genuine fears for his foster child’s safety. Yet evidence submitted was enveloped in anti-vaccination sentiment and as it is subject to the limitations of section 136 of the Evidence Act, the subjective opinions he held could not be accepted as “expert evidence establishing the truth of these opinions” . Neugebauer contended he had standing to seek certiorari to quash the provisional approval of vaccines for children because he himself was suffering distress, “by the looming risk of his [foster child] experiencing an adverse event” , and was thus a “person aggrieved”. Yet the reason his foster child had to be vaccinated was due to the DCP decision in accordance with State law. Neugebauer did not seek to challenge the validity of that decision.
Mark Neugebauer continues to lobby strongly against COVID-19 vaccines for children. He recently referred to the above court case on Twitter:
Funding and legal teams
Funding for the case was was via donations raised on the US Christian crowdfunding website GiveSendGo and the lobbying of AVN members by newsletter, website and social media. The legal team consisted of solicitor Mr. Peter Fam of Maat’s Method, Barrister; Mr. Jeremy L Harrison of Wentworth Chambers, Senior Counsel; Mr. Mark Robinson of Maurice Byers Chambers and consultant; former barrister, Julian Gillespie.
Solicitor for the appeal was Mr. Peter John O’Brien of PJ O’Brien & Associates. Funding for the appeal continued on GiveSendGo which is still functioning. It today reveals a current total of $650,179. There was also lobbying of AVN members via newsletter (30/06/2022), and social media.
Funding of $82,222 for the December 2022 Babies Case was via a separate GiveSendGo donation site (now
paused unpublished) and direct lobbying of donors. The legal team includes Mr. Peter Fam of Maat’s Method, Katie Ashby-Koppens; solicitor, Mr. Mark Robinson S.C. and Dr. Jason Donnelly of Latham Chambers.
In January 2022 the Australian Vaccination-risks Network sought to overturn provisional approval and registration of COVID-19 vaccines in Australia by seeking legal recourse against the Secretary of the Department of Health in the Federal court. The AVN were deemed unable to establish legal standing to bring the case to trial. Ten detailed matters submitted by the AVN and its founder Meryl Dorey as evidence to support standing were rejected by the presiding judge. As subjective opinions and “belief”, they did not establish “special interest”. Examination and deconstruction of evidence submitted via affidavit reveals no justification for legal action as proposed. Rather, it reveals a concise reflection of AVN anti-vaccine propaganda. Supporting affidavits offered decontextualised information and as such were misleading documents.
The AVN rejected the findings of the federal court and appealed. The appeal placed great emphasis on beliefs, opinions and judgements of Meryl Dorey and was ultimately found to be incompetent. In continuance of its pursuit for standing the AVN joined with five other plaintiffs in the filing of an application for writ with the High Court of Australia. Focusing on the provisional approval of a COVID-19 vaccine for children 6 months to six years, it argues that grounds for “special interest” are debatable and that “belief” does not disqualify one from standing. They wanted the High Court to “fix the law on standing” and establish a new category of standing that would recognise that these applicants, “seek to preserve human life”. On 16 March 2023 the High Court ordered the matter return to the Federal court.
This article is lengthy and has examined the real life activity behind some of the claims made by the AVN within and around the federal court case. But it still falls short. Since the onset of the COVID-19 pandemic, Meryl Dorey has adopted a convoluted suite of COVID-19 conspiracy theories and aggressively promoted her AVN persona as an anti-medicine crusader. She contends the pandemic is a scam, that SARS-CoV-2 does’t exist, and believes one cannot be infected with a virus unless injected with it. She urged her online followers to discard face masks, ignore social distancing and hand washing and to join large lockdown protests as infections surged. Dorey profits from the donations of anxious and vulnerable supporters.
Meryl Dorey and the AVN can never be trusted to contribute to the welfare of the community. Legitimising their conduct in any court of law would only lend strength to a warped ideology. They should be regarded as disingenuous witnesses in all law courts of Australia.
Australian Vaccination-risks Network v Secretary, Department of Health
Applicant submission in response to Secretary’s notice of objection to competency
Supplementary Affidavit; Peter Fam
2nd Supplementary affidavit; Peter Fam
3rd Supplementary affidavit; Peter Fam
Supplementary Affidavit; Mark Neugebauer
Affidavit; Lisa Mitchell – “expert witness”
Update to members; Australian Babies Case introduced
High Court application; The Australian Babies Case
High Court Order; Australian Babies Case
We are Discontinuing the Australian Babies Case
Distrust, danger, and confidence: A content analysis of the Australian Vaccination-Risks Network Blog [SAGE]
Australian Vaccination-risks Network-Wikipedia
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Latest update: 27 April 2023
One thought on “Gimme Standing: Australian Vaccination-risks Network in court”
I’ve noticed something in common with this filing and every similar attempt submitted to the US courts. When viewing the case filings in my browser, my PubPeer browser app lights up like the proverbial Christmas Tree – largely with notices of referenced papers by the antivaxxer’s filing all being withdrawn or retracted, as well as PubPeer commentaries, with most of their referenced papers having quite lengthy and scathing peer review comments.
It is literally like receiving a CV for one’s soliciter that lists only the cases he or she lost and the bloody thing’s as thick as a major city’s telephone book.
Understandable, as science does not support one iota of what they claim, well, beyond perhaps their given names.