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Australian Vaccination Network Inc v Health Care Complaints Commission [2012] NSWSC 110 (Supreme Court of New South Wales, Adamson J, 24 February 2012)

The plaintiff organisation (the AVN) is an incorporated association formed in Northern New South Wales in 1994 to offer information and advice sceptical of the benefits of vaccination. Its main vehicle for dissemination of information is a website. In 2009, two complaints were made against the AVN to the defendant, the Health Care Complaints Commission (HCCC). These complaints alleged misleading and deceptive conduct surrounding advice given about vaccination.

The HCCC, after assessing the two complaints, decided to investigate them. The investigation involved a review of the content of the plaintiff's website. After it had completed its investigation, the HCCC released its final report on 7 July 2010 (the Investigation Report) in which it made a recommendation that the plaintiff publish a disclaimer on its website. When the plaintiff did not do so, the HCCC issued a public warning in respect of the plaintiff on 26 July 2010 pursuant to s 94A of the Health Care Complaints Act 1993 (Cth) (the Act). The public warning stated:

The AVN's failure to include a notice on its website of the nature recommended by the Commission may result in members of the public making improperly informed decisions about whether or not to vaccinate, and therefore poses a risk to public health and safety.

The Investigation Report, its recommendation and the public warning were then relied upon by the Minister for Gaming and Racing (the minister administering the Charitable Fund Raising Act 1991 (NSW) (the Charitable Fundraising Act)) to revoke the plaintiff's fundraising capacity.

In these proceedings the plaintiff sought a declaration that the HCCC's investigation, the Investigation Report, the recommendation and the public warning were ultra vires (beyond the HCCC’s power) because neither of the complaints was a ‘complaint’ within the meaning of the Act. The AVN also sought an order in the nature of certiorari quashing the HCCC's decision to issue the public warning. The Minister for Gaming and Racing was originally named as the second defendant, but on 5 July 2011 the plaintiff discontinued proceedings against him.

It was important to the outcome of the case that the ‘complaints’ were within the meaning of the Act. Section 7 of the Act provides:

(1) A complaint may be made under this Act concerning:
(a) the professional conduct of a health practitioner (including any alleged breach by the health practitioner of Division 3 of Part 2A of the Public Health Act 1991 or of a code of conduct prescribed under section 10AM of that Act), or
(b) a health service which affects the clinical management or care of an individual client.
(2) A complaint may be made against a health service provider.
(3) A complaint may be made against a health service provider even though, at the time the complaint is made, the health service provider is not qualified or entitled to provide the health service concerned.

The AVN contended that the matters complained of were not within section 7(1)(b) or 7(2). Although it admitted that is was a health service provider, it did not offer clinical advice to individuals. The HCCC submitted that the information published on the AVN’s website had affected the decisions of individuals on whether to vaccinate themselves or their children against various diseases.

His Honour accepted that the complaints concerned a health service provided by a health service provider. However, was there any causal connection between the advice given and any individual? His Honour held that section 7(2) did not apply. Under section 7(1)(b), the evidence was not sufficient to establish any causal link between the website information and any individual. Therefore, there was no basis for the actions of the HCCC, and they were ultra vires. That being so, the plaintiff was entitled to a declaration to that effect.

Was certiorari also available? Were the legal rights of the AVN affected by the HCCC’s decision? The plaintiff argued that the public warning was a matter that the Minister for Gaming was obliged to (and in fact did) take into account in determining whether to revoke the plaintiff's authority to raise funds under the Charitable Fundraising Act. The AVN submitted that its legal rights had been affected and altered by the public warning which had labelled the AVN a public health risk. It argued that the decision directly exposed it to ‘a new hazard of an adverse exercise of public power, that of having its fundraising capacity revoked’ (at para [66]).

However, the plaintiff could not point to any provision in the Charitable Fundraising Act that made the public warning a mandatory relevant consideration in the Minister's decision whether to revoke the authority. Therefore, His Honour found that there was no basis on which he could find that the Minister for Gaming was legally obliged to take into account the public warning. In that situation, certiorari was not available.

The case may be viewed at:

Implications of this case
A plaintiff seeks certiorari when it wishes to have a decision by a government body quashed. In this case, the decision in question was the decision by the HCCC to issue a public warning about the AVN’s website information. This in turn caused the Minister for Gaming to withdraw the association’s capacity for fundraising. His Honour held that the decision about the public warning did not affect the legal rights of the association in such a way that it was entitled to an order quashing it. This was because the Minister for Gaming was not obliged to, though he did, take the public warning into consideration in his decision. His Honour dealt with the matter of the public warning in the declaration which he granted to the AVN.

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