Category Archives: Anti-Vaccination Lobby

Black Salve, The Australian Vaccination Network and the Therapeutic Goods Administration

Posted in Alternative "medicine" scams, Anti-Vaccination Lobby, Australian Vaccination-risks Network, AVN, General, Legal, Meryl Dorey by

As The Australian Vaccination-risks Network celebrate thirty years of spreading anti-vaccine and dangerous health advice to unsuspecting Australians, some satisfying memories of yesteryear have come to mind. Foremost is the delightful own goal scored by AVN founder Meryl Dorey, when promoting Black Salve as she bemoaned the Therapeutic Goods Administration (TGA) for taking action against the AVN for advertising a DVD, which itself promoted Black Salve. Let me explain.

It all began way back in 2012 with increasing interest in a fraudulently marketed so-called skin cancer “cure”. Namely, a corrosive salve known as an escharotic, being marketed as the near-miraculous Black Salve. A DVD sold by the (then) Australian Vaccination Network (AVN) titled One Answer to Cancer, was packed with anecdotal testimonies praising Black Salve and criticising Aldara, the medically approved treatment for keratoses and superficial basal cell carcinomas. I blogged about this at the time, and you can catch up here. It’s indicative of how quickly interest in Black Salve and the dubious DVD was spreading, to see that on 19 March 2012 the TGA published a warning about black and red salves in treating cancer. This included:

The recent use of  products marketed as containing ‘Black salve’ in Australia has resulted in serious harm to the skin of three Australian consumers who used the black salves for various skin conditions including the treatment of a skin cancer.

The TGA is not aware of any credible, scientific evidence which shows that any black or red salve preparation is effective in treating cancer. These types of salves have not been formally assessed by the TGA and are not included in the Australian Register of Therapeutic Goods or exempted from inclusion.

All therapeutic goods, including those used for treating cancer, must be included in the Register unless exempted. Penalties of up to $5.5m apply to the illegal importation or supply of therapeutic goods.

The TGA was investigating importation and a complaint made about supply via the internet. The Australian Pesticides and Veterinary Medicines Authority were also investigating sales purportedly proffered for pets. The TGA stressed that the problem with corrosive salves is that they “essentially burn off layers of the skin and surrounding normal tissue. They can destroy large parts of the skin and underlying tissue, and leave significant scarring.” The corrosive quality is unpredictable and almost impossible to control. Indeed Black Salve is also referred to as a pro-necrotic agent, which I blogged about in 2019. Once the process begins, widespread necrosis follows, leading to the release of enzymes which cause the breakdown of neighbouring cell membranes. A domino effect ensues causing widespread cell death. It brings to mind the “acid for blood” scene in the movie, Alien.

Necrosis of left nostril and surrounding tissue caused by Black Salve (Wikipedia)

Proponents misleadingly call it Nature’s Scalpel. The purpose of One Answer to Cancer was to promote Black Salve and offer instructions on how to prepare your own batch, using zinc chloride and sanguinaria canadensis, also known as bloodroot. This way the DVD producers could side step charges of selling the illegal corrosive. In December 2018, The Royal Australian College of General Practitioners published a comprehensive article on Black Salve, its history and use, noting that the main ingredient is the synthetic corrosive, zinc chloride. Thus claims of a “natural alternative” are inaccurate, and “catastrophic consequences can occur”. The dangers were well documented in 2012 and warnings were abundant. Nonetheless, in the AVN shop Meryl Dorey had included the following blurb with the DVD ad’.

50% of us will face cancer in our own lives at one time or another… we will have to face the choice of how to treat our illness – using toxic drugs or safe, effective, time-tested natural remedies… If you or someone you know is facing this issue or if you just want to be prepared for any future cancer diagnoses, this will be the best $25 you have ever spent!

The advertisement was in breach of the Therapeutic Goods Act 1989 (the Act) and numerous sections of the TGA Advertising Code (the Code). The Code is an effective legislative device for drawing up complaints against the peddling of quack remedies. Once content meets the definition of an advertisement, that content is subject to a number of principles outlined in the Code. More so, persons who publish what meets the definition of an advertisement may be guilty of an offence if other other medications are criticised or if a risk of harm applies. To read the advertisement and understand how the Code and the Act applied in 2012 you can check out the complaint I lodged on 19 April that year.

TGA_complaint_Black_Salve_Australian_Vaccination_Network_redactDownload

Prior to 1 July 2018, advertising complaints lodged with the TGA were handled by a Complaints Resolution Panel (CRP). A media release announcing that the TGA would take on the role of complaint management is available here. Way back in 2012 my complaint was handled by the CRP, and their findings from December 2012, can be accessed here. Fifteen sections of the Code and one section of the Act were found to have been breached. The AVN were told to remove the advertisement and publish the notice below.

However long before this, the TGA informed Meryl Dorey that a complaint had been lodged, as is her right. Unsurprisingly, Meryl felt both the complaint and the request of the TGA to remove the offending advertisement was an abuse of her network’s rights. On 5 May 2012, which was about two weeks after being notified, Meryl gave an interview on Fairdinkum Radio, a production of Resistance Media. This was an early freedom fighter production, and host Leon Pittard opened the show announcing the title as, The Australian Government’s Assault on Health Freedom. For me, the highlight of the show was Meryl’s interview which you can access below, or download here.

Meryl waxed lyrical about the benefits of Black Salve and the horror of Aldara, which she falsely claimed was “banned in many parts of the world”. Meryl also managed to call the TGA Cost Recovery model, “a fairly evil policy”. She provided a dubious anecdote of her own apparent use of Black Salve and wrongly claimed it has a “two thousand year history”. She mentioned the DVD and wrongly claimed Black Salve was a combination of herbs and minerals. The interview went on for over five minutes and easily met the definition of an advertisement. An advertisement for Black Salve published in broadcast media, no less. I lodged a second complaint.

TGA_BlackSalve_FairdinkumRadio_AVN_redactDownload

The complaint makes clear how both Meryl and host Leon Pittard were liable as advertisers. It also contains a transcript of the interview. Application of appropriate sections of the Code, the Act and the Therapeutic Goods Regulations 1990, justified removal of the interview/advertisement and publication of a retraction (below). By the end of January 2013 the CRP had published their findings which can be accessed here. Thirteen sections of the Code were breached along with two sections of the Act. No sections of the Code raised in the complaint were found not to be breached. More so, over five paragraphs the panel raised additional matters not in the complaint. These included a possible breach of the Act relating to the Register of Therapeutic Goods, and nine possible breaches of the Code relating to criticism of Aldara, promoting a dangerous compound for serious disease, comments about the TGA and more (see pp. 2-3).

Page 3 of the CRP report includes reference to a somewhat bizarre response to a member of the panel from both Dorey and Pittard. In essence they would cop to the findings of the panel if the member would, in his private capacity, present “true, complete and correct proof” that relating a personal condition to anyone constitutes advertising, that the person making the claim is aware of fees paid for advertising, that free speech is not an inherent right, that any corporation has the right to sue an individual and that the matter couldn’t be settled in private. Leon Pittard had long boasted of monitoring the New World Order, employed a watered-down sovereign citizen logic to his world view and, like Dorey, was a fan of conspiracy theorist, Senator Malcolm Roberts. Pittard no doubt penned the response attributed to both he and Dorey (summarised below).

To my surprise, a short time after lodging the complaint I stumbled across this ridiculous video from the USA which was defending the position of Leon Pittard and Meryl Dorey. I wonder if in the rush to defend free speech the producers did any serious research on Black Salve, or understood the danger their support posed to an unsuspecting public.

Ultimately it was rewarding to have these particular complaints upheld. The second complaint – a veritable own goal – was particularly satisfying. However as is often the case with groups beholden to anti-science ideologies and belief in a fight for “health freedom”, such advertisements aren’t always removed when requested. Non-compliance is met with further warning notices, whilst more serious penalties reflect the nature of the breach and risk to the public. There’s little doubt that Black Salve caused serious injuries at the time and a quick search reveals that it continues to cause harm and generate health authority warnings in developed nations. The TGA seized Black Salve capsules on the Gold Coast in May 2019 and again in Brisbane, in December 2023.

The TGA publish regulatory decisions and announcements and the outcomes of advertising compliance investigations. As members of the public it’s up to us to report harmful products and dodgy advertisements to the TGA. It may involve a bit of reading but not every complaint needs to begin with every potential breach.

You can report perceived breaches or questionable practices here. There’s more information on reporting, what you need to provide and accessing support to complete forms here.

Complaints & Findings:

Complaint to TGA re One Answer to Cancer advertisement

Complaints Resolution Panel findings December 2012

Complaint to TGA re Fairdinkum Radio interview

Complaints Resolution Panel findings January 2013

Complaint re One Answer to Cancer DVD

TGA_complaint_Black_Salve_Australian_Vaccination_Network_redactDownload

CRP Determination for 16 August 2012

TGA_CRP_2012-04-022_Black_SalveDownload

Complaint re Fair Dinkum Radio and Meryl Dorey

TGA_BlackSalve_FairdinkumRadio_AVN_redactDownload

CRP Determination for 20 September 2012

TGA_CRP_2012-05-013_Black_SalveDownload

Vaxxed III: Unmitigated disinformation

Posted in Anti-Vaccination Lobby, COVID-19, COVID-19 Vaccine, Health, Immunisation, Media, Vaxxed by

On 23 August this year, Robert F. Kennedy Jr. suspended his independent US presidential campaign in ten battleground states, choosing to endorse Donald Trump. He cited the same causes, “that persuaded me to leave the Democratic Party and run as an independent”, according to AP News. Namely, free speech the war in Ukraine and “a war on our children”.

Kennedy: Anti-vaccine activist

There is, of course, no war on American children. Nor a war on any children in developed nations, in the sense Kennedy is alluding to. In fact as the chairman of Children’s Health Defense (CHD), Kennedy has himself waged a long battle against one of public health’s most important pillars; childhood immunisation. As with every anti-vaccine activist, COVID-19 presented Kennedy with an opportunity to manipulate and exploit a growing pool of misguided and misinformed individuals. Those who blame COVID-19 vaccines for virtually every illness or cause of death. Let me stress, I’m not referring to the known side effects but rather, those pushed by COVID conspiracy theorists and tireless anti-vaxxers. Ultimately, Kennedy’s profile expanded markedly, as did CHD revenue.

So comfortable with deceit, when he began his independent trot toward the White House, Kennedy insisted he was not anti-vaccine. This, despite telling a supportive crowd in December 2021, “It is criminal medical malpractice to give a child one of these vaccines”. Despite his influence in bringing about the measles tragedy in Samoa. He worked hard at the presidential pretence, even temporarily stepping down from his position as CHD Chair. Still today, the “chairman on leave” video message on every CHD website page lacks any reference to vaccines. Yet Kennedy mentions “unnecessary injuries” suffered by children, includes studies of autism and developmental disorder rates and packs in 16 snippets of autistic individuals – mostly with pronounced symptoms. Children are chronically sicker than ever before, “wandering around in a toxic soup”, Kennedy tells viewers. In search of the cause he will die with his boots on, fighting for them. Kennedy originally wrongly linked vaccines to autism in a, now removed, 2005 Rolling Stones article. This fact check piece offers an excellent deconstruction of the misconceptions used to make that link.

Vaxxed

Kennedy’s Children’s Health Defense has been hard at work targeting vaccine evidence during the COVID pandemic. This includes the making of the third Vaxxed film, Vaxxed III: Authorised to Kill, by CHD Films. True to the Vaxxed brand, it is a slick cornucopia of fear-mongering and falsehood. A key figure in this ghastly enterprise is interviewer and co-producer Polly Tommey, who has been involved with the first two Vaxxed films. Readers may remember Tommey was banned from Australia for three years following her antics in promoting the original Vaxxed film here in 2017. Trundling about with the (then) Australian Vaccination-skeptics Network, Tommey, who wrongly believes the MMR vaccine caused her son, Billy, to develop autism, told Australian audiences “doctors were murderers”. The Tommey named as producer of Vaxxed III and Vaxxed II: The people’s truth, is her other son, Tobias. The second and third Vaxxed films have been directed by Brian Burrowes. The first Vaxxed was directed by Andrew Wakefield and produced by Del Bigtree.

In doing some basic research for this post, I noted that Polly Tommey has changed not at all. On 6 September she used CHD’s X account to peddle the falsehood that “an experimental” oral polio vaccine is being used in Gaza. She added the sweeping claim that “the oral polio vaccine” is responsible for the poliovirus infecting “hundreds each year”. Like most persistent anti-vaccine lies there is a kernel of truth here. A prior oral polio vaccine caused disease in ~1 in 2.9 million. However, the new oral vaccine in Gaza does not contain the vaccine-derived strain responsible for past infections. More so, it is the lack of vaccination and the presence of poliovirus in human waste causing the problem. In addition, removal of the problematic weakened virus in 2016, in an attempt to prevent vaccine-derived outbreaks, resulted in greater infection rates. Citing a draft report for the World Health Organisation, AP News explain:

The polio strain in question evolved from a weakened virus that was originally part of an oral vaccine credited with preventing millions of children worldwide from being paralyzed. But that virus was removed from the vaccine in 2016 in hopes of preventing vaccine-derived outbreaks.

Public health authorities knew that decision would leave people unprotected against that particular strain, but they thought they had a plan to ward off and quickly contain any outbreaks. Instead, the move resulted in a surge of thousands of cases.

Suffice it to say, facts are anathema to CHD and Tommey. Which brings us to the quality of Vaxxed III: Authorised to Kill. As with the prior two films the main content is of people interviewed about so-called “vaccine injuries”, deaths and negative health system experiences, filmed in a Vaxxed bus driving across the USA. Like all Vaxxed buses this one was wrapped in Vaxxed brand colour and font. This time the message was Vax – UnVax: The People’s Study. The journey took nine months. All the COVID-19 anti-vaccine tropes are there. Countless testimonies of “life-altering injuries and deaths”, frightening symptoms, scans of brain tumours and pulmonary bleeds, suicidal tendencies and futile hospitalisations. Whistleblowers, medical professionals and lawyers apparently serve to legitimise what is unmitigated disinformation. Viewers are primed to accept that any response to COVID was a “fundamental violation of human rights”.

Vaxxed films are slick productions. Well edited to give the impression of government and health-authority deception, feeding viewers a misleading narrative that casts vaccines as harmful toxins pushed onto an unsuspecting public for nefarious reasons. A conspiracy to hide the truth is always present. As with all Vaxxed buses the names of the “vaccine injured” and dead are written on the outside of the bus. The dedication page for these most recent names contains over 1,350 entries, many of which list autism from MMR or “childhood vaccinations”. Apart from harm done to perception of vaccine safety and public health, individuals exploited and coaxed into a victim mindset, experience genuine pain and distress. Nothing good comes from these films.

Message on the CHD Vaxxed bus

This latest Vaxxed chapter raises a few questions for those of us in Australia who followed the antics of The Australian Vaccination-risks Network (AVN) and their much troubled journeys in their own Vaxxed II: The People’s Truth, bus. The AVN hit the road in July 2020 in their bus, sticking closely to the Vaxxed script. They clocked up seven seperate tours in two buses, as the first was irreversibly damaged in NSW flood waters. On 8 July 2020, AVN founder Meryl Dorey revealed parents “will be filmed for an up-coming Australian documentary”. Five weeks earlier president Anita Hafemeister had boldly claimed, “This will be the Australian version of Vaxxed II, I assume”. All that excitement led this humble author to speculate that the Vaxxed II bus tour would yield material for Vaxxed III. In fact the AVN was still advertising the bus, with sponsorship requests, in February this year. One can only assume that the reality of CHD dollars, Kennedy’s backing and the ambition of Polly Tommey has for now, kept content from Down Under off the big screen.

Polly Tommey and CHD are pushing to fill theatres in the US for an 18 September screening. A host of graphics are offered to assist fans to spread the word on social media. All contain the image of a driverless bus emerging from the mist in the dead of night. The film is being advertised with an unabashed call for donations. Or if you’d like to be an associate, co-‘ or executive producer with a minimum donation of $10,000, that privilege is a mere phone call away. No doubt Vaxxed III will make a profit for Kennedy’s CHD.

Of more concern, is that acceptance of COVID vaccine misinformation has grown in developed nations under the labour of anti-vaccine activists. The USA is currently experiencing a growth in the belief of COVID vaccine falsehoods and this film, along with the discussion that follows, may well worsen that trend in the US and elsewhere. Australian anti-vaxxers will have to wait for an online release.

Polly Tommey and Co discuss pre-release debunking of Vaxxed III

Vale Jane Hansen

Posted in Anti-Vaccination Lobby, General, Health, Media, Science, Skeptic, Social Media by

Last week Jane Hansen passed away from glioblastoma, an aggressive form of brain cancer. Jane was a deeply committed and focused journalist who utilised evidence to challenge pseudoscience, scams and disinformation. Jane regularly used truth to expose those who profited from exploitation of the vulnerable. She had journalistic skills equal to multiple tasks. Her presentation style and writing made that abundantly clear.

Consequently, Jane’s colleagues have recently offered other adjectives to describe her as a journalist. Esteemed, celebrated, legendary, star, courageous, compassionate, revered, renowned, tireless, passionate, crusader, genuinely funny, a giant, a hero, a pioneering female, a warrior for truth. Social media reflected the extent of the respect Jane had engendered over the years. Amazing, awesome, tireless warrior, dedicated, excellent, great… and more. A quick search for Jane’s name yields a veritable stampede of honorific headlines, all jostling to make individual statements, yet all condensing around one notion: Praise.

Respected Australian journalist, Ray Martin offered this summary:

“Jane Hansen gave journalism a good name. She was formidable, energetic and ethical.

“She fought relentlessly for the underdog and the disadvantaged – especially women and Indigenous Australians.

“Jane was smart, funny and a reliable friend. We’ll miss her pursuit of excellence, as she tried to keep the bastards honest.”

Jane was also a loving and loved mother, sister and an adored friend of many. I knew Jane only through the occasional email exchange or direct messaging on social media, yet often enjoyed her well known talent for making people laugh. I’ve lost count of the number of times I consulted an article Jane had written to orient myself regarding a specific anti-vaccine insult, or from whom a certain deceit had arisen. One highlight for me was Jane’s work in the making, production and promotion of Big Shots: Anti-Vaxxers Exposed. Made in the early, pre-vaccine days of the COVID-19 pandemic, Jane capably bridged the harm that anti-vaccine lobbying had already caused in Australia, and the foreseeable damage COVID conspiracy theories would inevitably bring.

Readers familiar with the tactics of vaccine conspiracy theorists can certainly guess, or may well be aware, of how they have reacted to this news. Fortunately, Jane made a lasting schism in their fragile credibility, leaving in her wake a surging wash of evidence-based reasoning, powerful enough to smother both their deceit and vulgarity. Jane always focused on presenting the facts. Her critics focused on attacking the person. On the day Big Shots aired in 2021, Jane was interviewed on Sky News, and shared this observation, which in my mind reflects both her sense of fairness and respect for sound public health.

I don’t have a problem with questioning a vaccine. This is a new vaccine, we want to know if it’s safe. There’s no point in having an unsafe vaccine; we all want a safe vaccine. But some of the misinformation that’s being spread is just ludicrous.

Jane’s career was extensive, including her role as a war correspondent for Network 10 in both Iraq and Bosnia, later working on the current affairs programme Hard Copy. She worked at Channel Nine for fourteen years. Jane co-authored Boned, the eye-opening book on boys-club mentality in TV media, and also authored the deeply personal and emotional Three Seasons. Her own experiences aided her unbiased assessment of Kathleen Folbigg, culminating in Jane writing and presenting the popular podcast Mother’s Guilt. Of course, Jane also managed her extensive and impressive career at The Sunday Telegraph.

Jane’s tireless campaigning was instrumental to the introduction of the Abbott/Turnbull government’s No Jab, No Pay/Play policies. Introduced in 2016, this public health initiative has seen an ongoing increase in life-saving childhood vaccination and is regarded as an overwhelming success. Jane’s reporting on anti-vaccine responses to it continue to educate the community. The same can be said for her criticism of anti-fluoridation conspiracies. In 2018 Jane was the inaugural winner of The Barry Williams Award for Skeptical Journalism. Australian Skeptics Inc. explain:

The Barry Williams Award for Skeptical Journalism is awarded for journalistic work that critically analyses or exposes issues related to pseudoscience or the paranormal. The award is dubbed “The Wallaby” after Barry’s alter ego of Sir Jim R Wallaby, which he used for some of his more whimsical pieces published in The Skeptic magazine. In addition to a commemorative certificate, $2000 is awarded to the recipient or to a charity or cause of their choice.

Jane Hansen awarded the “Wallaby” 2018

Jane’s respect for evidence-based public health policies was linked to her desire for a more just world. In addition to her work exposing pseudoscience, Jane also reported on childhood muscular dystrophy, childhood medication, childhood cancer, cardiac health, teen vaping, IVF clinics, endangered animals, diabetes, organ donation and much more. Claire Harvey described Jane as “the most passionate journalistic crusader” she’d ever known. Jane’s work will remain and continue to positively influence others.

As a final note I’d like to stress there is no such thing as turbo cancer and no evidence COVID-19 vaccines cause cancer. Jane passed away late on 6th August after being diagnosed less than two years ago with glioblastoma, a particularly aggressive form of brain cancer. Outside of inherited syndromes or exposure to radiation, the cause of glioblastomas is not known. More common in older adults, they may occur at any age. Research has not identified anything that can prevent development of glioblastoma.

Fidge v Pfizer: High Court writ targets Chief Justice Debra Mortimer

Posted in Anti-Vaccination Lobby, COVID-19 Vaccine, Legal by

Last we visited developments related to the Fidge v Pfizer case, we had a long look at ambitious arguments arranged to convince Federal Court Chief Justice Debra Mortimer to uphold a constitutional complaint against Justice Helen Rofe. Rofe had summarily dismissed Dr. Julian Fidge’s application for injunctive relief under the Gene Technology Act on 1 March 2024. The judgement is here and my post summarising the case is here.

Fidge was found to lack standing and the case did not proceed. As I mentioned at the time, this was the latest failure of case design by solicitors Katie Ashby-Koppens and Peter Fam, and retired barrister Julian Gillespie. By 22 March Ashby-Koppens and PJ O’Brien and Associates had filed the constitutional complaint with the Chief Justice, alleging Justice Rofe had concealed “her connections to Pfizer and the pharmaceutical industry, before dismissing a case to Pfizer’s advantage”. Reading the complaint, one is struck by both the tenuous nature and the sheer range of the arguments put forward to establish motive, as alleged by the complainants.

Justice Rofe omitted to disclose her role as a barrister acting for Pfizer in patent law cases around 20 years before; hence the “connections to Pfizer”. Yet her connections to “the pharmaceutical industry” rely on one following a convoluted web of associations, that are presented by the complainants as potentially nefarious only through the lens of conspiracy theory thinking. In fact the reader must also accept there are inherent flaws and a predisposition to deception associated with scientific and medical research per se, and indeed any acceptance of COVID-19 vaccines and/or COVID public health initiatives.

On 27 June a writ of mandamus was lodged on behalf of Dr. Julian Fidge at the Brisbane registry of the High Court of Australia. The defendant named was Chief Justice Debra Mortimer. As we’ve observed before, such a writ commands or dictates that an individual or government department carry out a duty that falls within their remit. We saw this in the AVN case targeting the Secretary of the Department of Health to use his powers under the Therapeutic Goods Act to cancel or suspend the provisional registration of three Covid-19 vaccines, including the Pfizer and Moderna vaccines (Australian Vaccination-Risks Network Incorporated v Secretary, Department of Health [2022] FCA 320). They too were found to lack standing.

Clearly Julian Gillespie and Katie Ashby-Koppens feel that three months is long enough to wait. Justice Mortimer has not commented and Gillespie writes that they have argued in “countless correspondence with her office ever since the Complaint was lodged with her”, pointing out their argument. It basically runs as follows:

Helen Rofe did not disclose her prior relationship with Pfizer and thus cancelled out her own judicial authority. This invalidated her 1 March ruling. Justice Mortimer should have informed her of this, Gillespie reasons. He has also peddled ad nauseam his “not a judge” theory. So, let’s look at this. Gillespie cites the High Court ruling QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (May 2023), paragraph 26. He quotes:

The question arising in the circumstances of the present case falls to be resolved at the level of principle within the framework established in Ebner v Official Trustee in Bankruptcy. Foundational to that framework are two propositions. One is that impartiality is an indispensable aspect of the exercise of judicial power. The other is that “[b]ias, whether actual or apprehended, connotes the absence of impartiality” … an actuality or apprehension of bias is accordingly inherently jurisdictional in that it negates judicial power.

With the negation of judicial power Justice Rofe is apparently “not a judge”. But let’s read that paragraph again, with all the text and a minor change in emphasis:

The question arising in the circumstances of the present case falls to be resolved at the level of principle within the framework established in Ebner v Official Trustee in Bankruptcy. Foundational to that framework are two propositions. One is that impartiality is an indispensable aspect of the exercise of judicial power. The other is that “[b]ias, whether actual or apprehended, connotes the absence of impartiality”. Leaving to one side exceptional circumstances of waiver or necessity, an actuality or apprehension of bias is accordingly inherently jurisdictional in that it negates judicial power.

Exceptional circumstances of waiver or necessity. Could there be circumstances of necessity? I’ve no idea at this point, but it seems relevant. Gillespie assumes he and others so inclined deserve the attention of one of Australia’s most senior judges. Despite being wrong five times in two years, they now seek to force the hand of the Chief Justice of the Federal Court of Australia. He accuses Chief Justice Mortimer of not “properly investigating Helen Rofe, her workmate”.

Another key reason to take this position is the belief that the ruling by Justice Rofe on 1 March is “unappealable”, yet Chief Justice Mortimer “wants to see us appeal the 1 March decision despite Dr Fidge’s legal team telling her that decision is unappealable”. The logic for this also stems from the “not a judge” mantra. The Federal Court of Appeal has jurisdiction to hear a judicial decision from a single judge. As Gillespie alleges Justice Rofe negated her judicial authority, the case did not have a single judge and they “have no decision vested with judicial authority”. Thus, the Gillespie contention is that it follows that the case is “unappealable”.

Finally, this entire manufactured affair provides an opportunity for chasing donations and to promote Australia’s anti-science senators in attacking COVID-19 vaccines. An initiative of Children’s Health Defense Australia Chapter is Section 72. The website seeks to direct devotees to lobby MPs to act in response to the constitutional complaint against Justice Rofe, and to date claims almost 9,000 have “taken action”. It also claims without any evidence that, “there is also the possibility other members of the same court are implicated in this misconduct of Justice Rofe”. Also:

Senators Malcolm Roberts, Gerard Rennick, Ralph Babet, Alex Antic and Russell Broadbent all intend to support the Complaint being dealt with properly by Parliament under Section 72(ii) of the Constitution…

Section 72(ii) of The Australian Constitution states:

The Justices of the High Court and of the other courts created by the Parliament–

  (ii.)   Shall not be removed except by the Governor-General in Council, on an address from both Houses of the Parliament in the same session, praying for such removal on the ground of proved misbehaviour or incapacity: 

The proposed aim of this constitutional complaint has been to push for Justice Rofe’s removal from the Federal Court. Allegations of corruption and COVID conspiracy theories shape the thinking of those involved. It will be interesting to see what response if any the complaint elicits and how the recent High Court filing targeting Chief Justice Mortimer for “not doing her job” plays out.

This particular anti-vax legal saga is likely far from over.

Fidge v Pfizer: The constitutional complaint

Posted in Anti-Vaccination Lobby, COVID-19, COVID-19 Vaccine, Health, Immunisation, Legal, Science by

In the last post I ran through the finding by Justice Helen Rofe in the case of Fidge v Pfizer. This was the third case brought by individuals and legal representatives with strong anti-vaccination links; both ideological and active. The applicant, Dr. Julian Fidge was found to lack standing. The case was dismissed.

As I previously began to discuss, within a day of the ruling, a follower of Julian Gillespie prompted him to do some digging into Justice Helen Rofe’s career as a barrister. You see, dear reader, as a barrister Helen Rofe had represented Pfizer in cases of intellectual property and patent law between 2003 and 2006. To the antivax mindset, this was proof of corruption because she did not reveal this prior to hearing the case. As a perceived “conflict of interest” existed, Rofe should have recused herself or allowed parties to request her recusal, they argued.

Now again, I am not a lawyer and I cannot qualify the importance of the duty of disclosure in this instance. But my thoughts on this development are straightforward. Is there any evidence Justice Rofe could not have acted impartially, or did not act impartially? Or rather, did her experience make her an ideal choice to hear the case. In 1988 Helen Rofe completed a Bachelor of Science with a major in genetics. Justice Rofe states on LinkedIn:

Prior to being appointed to the Federal Court I was a commercial barrister and Queen’s Counsel specialising in science and technology related matters.

Constitutional Complaint

On 22 March 2024, PJ O’Brien and Associates filed a constitutional complaint against Justice Rofe citing not only her prior work as a barrister but also “affiliations and extended family”. According to the media release (below) Justice Rofe “concealed her connections to Pfizer and the pharmaceutical industry”.

Constitutional Complaint Media Release

I should point out that contact for the complaint, Katie Ashby-Koppens, is on the steering committee for the World Council for Health (WCH). The WCH is renowned for promoting misinformation linking COVID-19 vaccines with death. Wikipedia describes the group:

The World Council for Health is a pseudo-medical organisation dedicated to spreading misinformation to discourage COVID-19 vaccination, and promoting fake COVID-19 treatments.

The organization’s online appearance is that of a mainstream health organization. It appears to have been formed in September 2021 and its published leadership contains people which an Australian Associated Press fact check described as “figures who have promoted unfounded conspiracy theories”.

Now, better equiped to understand motivation, let us examine the complaint.

The accusations in the complaint are impressive to say the least. They require substantial “reasonable assumptions”, both numerous and convoluted. This reasoning begins by pointing out that Justice Rofe has majored in genetics, and the Fidge case involved genetics, genetically modified organisms and allegations that mRNA vaccines are GMOs. Also, we’re reminded that Justice Rofe held prior membership of the Bolton Clarke Human Research and Ethics Committee. Her cousin Sir Andrew Grimwade supported research there with grant monies from the Felton Trust. He was a member of the Felton Bequest for 50 years, and served 19 years as chairman of the bequests committee. He was a guest at the ceremony to welcome Justice Rofe to the federal court. Rofe “enjoyed a good relationship with Sir Andrew” sharing his “interest in science and scientific research”.

Sir Andrew was the great-grandson of Frederick Shepherd Grimwade who, “founded the Grimwade family pharmaceutical industry fortune in Australia”. The complaint goes on to state, Sir Andrew also “served as the honorary President of the Walter and Eliza Hall Institute (WEHI) for 14 years before retiring in 1992″ and had been on the Board since 1963. He “appears” to “have maintained a close relationship with WEHI right up until his death”, purportedly evidenced by a public guestbook obituary from WEHI.

As Australia’s leading biomedical research institute, the WEHI “may have” received billions of dollars from Australian governments. The WEHI have received $30 million from The Bill & Melinda Gates Foundation. Pfizer, BioNTech and Moderna have received six times that from the same Foundation, which has also promoted COVID-19 products. It’s “also reasonable to assume the WEHI supports all of the efforts of Mr Gates and the Bill & Melinda Gates Foundation in respect of their support of the COVID-19 products of Pfizer and Moderna.” WEHI received $13.5 million in Australian government funding for “COVID related projects”.

In mere paragraphs we’ve leapt from the failure of Justice Rofe to reveal that she had represented Pfizer some 18 to 21 years ago, to the apparent significance of her cousin’s commitment to scientific research and the involvement of the premier anti-vax enemy, Bill Gates. The complaint continues, targeting the Australian and Victorian governments’ partnership with Moderna. “It is reasonable to assume that the WEHI stands to possibly receive significant monies” from this partnership. The Victorian government has given $600,000 to WEHI as part of mRNA Victoria. “It is entirely reasonable, in light of enduring family ties and her Honour’s own scientific background and interests”, that Justice Rofe has “long been aware of the sources of funding… and the public statements in support of mRNA technologies” made by state and Commonwealth ministers and the Prime Minister.

The complaint rolls on in alleging that affiliations “reaching back four decades for her Honour personally, and over a century when extended family interests of great significance are factored in”, in fact mean a reasonable observer would accept J Rofe holds “Big Pharmaceutical interests, both domestic and international”. More so, Justice Rofe has “meaningfully and significantly assisted to protect, grow, and further establish in Australia [the interests of Pfizer]”. It is further alleged extended family ties nefariously influenced Justice Rofe’s decision-making to favour funding for WEHI, mRNA technology and “further significant sums of research monies” for both, as they’re supported by The Australian PM. Finally we reach paragraphs 42 and 43:

A reasonable observer can conclude from the above that it was more likely than not her Honour would seek to see the science and technology promoted by Pfizer and Moderna, and Australian governments, that stand to significantly benefit medical research institutes like the WEHI, survive and flourish in Australia.

Judicial proceedings of the type brought by Dr Fidge would, if successful, strike a damning blow against all the above interests, and much more.

The complaint continues with Case Implications, outlining what they believe would happen if Fidge had won the case. It not only reads like an anti-vaxxer day dream, yet reveals in black and white, the unabashed sabotage of vaccine public health initiatives and related vendettas, that this group deems justified. Australia would see injunctions and “serious criminal charges” for Pfizer and Moderna. Initiation of investigations into the “operations, processes and personnel of the OGTR, Department of Health and Aged Care” and (of course), “In particular the former Secretary of Health, Brendan Murphy due to his being responsible for provisional approval [of COVID-19 vaccines]”. In addition would be initiation of an examination to determine if the absence of GMO licences led to failure to provide proper informed consent, and medical negligence implications.

There would also be potential civil liability in the Commonwealth government for failing to enforce GMO licensing, and civil liability for Pfizer and Moderna for failing to undertake GMO licensing. The complaint also refers to “possible confirmation” of injuries and deaths caused by genetically modified properties of mRNA vaccines. Yet there is no body of work identifying such adverse outcomes. It is a misinformed notion linked to the same suite of decades old research, mRNA-critical pre-print papers, animal studies, SARS-CoV-2 infection studies and related articles that buoy this anti-vaccine belief. I’m not criticising the research, but strenuously reject the invented link to “injuries and deaths” fabricated by the anti-vaccine lobby.

Another implication of a Fidge victory, is vaccine hesitancy due to a loss of trust in Australian health authorities. Yes, they’re serious. However, vaccine hesitancy is in fact due to constant misinformation spread about vaccines, by groups such as this. Then on p. 13 we read the implication under 44 J:

The necessity to initiate many forms of clinical studies to assess the real world damage, disease, or fatal outcomes associated with the GMO products of Pfizer and Moderna, and any observed medium-to-long term disease and adverse reproductive health outcomes associated with the GMO products of Pfizer and Moderna, for those Australian citizens who were not informed they were receiving GMOs.

Astonishing. The complainants apparently believe an entire body of clinical research would evolve following a Fidge victory. One may ask, quite rightly, as to why such research into this vaccine induced disaster is not already underway. The answer being of course, that the “damage, disease and fatal outcomes” do not exist.

We then read that the complaints provided list is not exhaustive and that the implications suggested, pose severe and long lasting reputational damage and financial consequences “for all Australian political parties and their lead members in power throughout the COVID period”. Particularly for those introducing Pfizer and Moderna vaccines.

They finalise the implications by contending that these, or other implications not even listed, may have served to motivate Justice Helen Rofe to dismiss the case brought by Julian Fidge. The complaint then moves onto Judicial Conduct, and examines the Guide To Judicial Conduct with respect to J Rofe’s “failure to discharge her duty of disclosure concerning her prior dealings with Pfizer.” The complaint submits in paragraph 48:

As detailed under the section above…, her Honour Justice Rofe had significant prior dealings with Pfizer when a barrister, and through her science learnings and the interests of her extended family, significant professional and personal interest in seeing the continued success of those institutions her extended family and science colleagues had been involved with, and perhaps continue to be involved with.

The remainder of the complaint utilises the Guide to Judicial Conduct and the various summations of active bias that the complainants allege motivated J Rofe’s decision-making, in an attempt to argue she is in breach of sections of the Guide. Focusing on the principle of Impartiality and sections such as Personal Relationships, the complaint references seven “slightly different positions [reinforcing] the same common-sense view”:

Where there is a prior relationship with a party, the judicial duty is to disqualify oneself or disclose the relationship before all the parties. If in doubt about disqualification, disclose the relationship before all the parties and invite submissions.

Again, impartiality should be determined by “a fair-minded lay observer who might reasonably apprehend that the judge might not [be impartial]”. Whilst perception of bias and conflict of interest sufficient for disqualification from a case “is to be judged by the perception of a reasonable well-informed observer”. Parties should be informed by the judge of facts which might give rise to perceptions of bias, but the judge must decide on the appropriateness to sit on a case.

Conclusion

For this author, looking through the complaint is like reading any text peppered with the red flags of anti-vaccine beliefs combined with an entrenched distrust of medical, legal and government authority. I can see nothing wrong with the legal team of Julian Fidge raising concerns over Justice Rofe’s failure to disclose her past history representing Pfizer. I don’t believe there’s much substance to it but respect their right to raise concerns. However, the constitutional complaint itself relies on typical anti-vax tropes such as distrusting J Rofe’s respect for science and research, and her affiliations with individuals or organisations linked to vaccine technology and/or its funding. Indeed the complaint made a number of connections that whilst exhaustive, are difficult to respect, much less accept. To argue that J Rofe acted with corrupt intent, primarily to avoid the dawn of the post Fidge-victory era as the complaint described it, is simply fantastic.

I can only conclude by wishing Justice Helen Rofe all the very best.

Professional Conduct Rules for Lawyers

As a footnote, it’s worth pausing to consider that lawyers and solicitors are also subject to professional conduct rules. Katie Ashby-Koppens and Peter O’Brien & Associates must keep in mind their duty to the court and the administration of justice.

Lacking professional distance from your client (or their cause) risks distracting you from this duty, which is paramount and prevails to the extent of inconsistency with any other duty. Your objectivity, your independence and your forensic judgement – on which the court relies – may be reduced.

The duty to avoid any compromise to integrity and professional independence:

Your integrity and trustworthiness are fundamental to your reputation as a lawyer and to your relationships with clients and other parties in the justice system. When a lawyer fails to act with integrity because their professional boundaries are compromised, the integrity of the justice system as a whole is undermined.

Wise words.