A group that claims vaccines cause autism, brain damage and cancer has won its case against the healthcare watchdog, with a court finding the Health Care Complaints Commission did not have the jurisdiction to issue a public warning about it.
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The Australian Vaccination Network (AVN) is run by Meryl Dorey, who publishes a website and newsletter, campaigns against mass public immunisation programs and promotes the use of homeopathy to prevent disease.
In July 2010, the HCCC issued a public warning that the group "poses a risk to public health and safety".
In issuing the statement, the HCCC said the failure of the AVN to include a disclaimer in a prominent position on its website, that it provides information that is solely anti-vaccination, could result in "members of the public making improperly informed decisions about whether or not to vaccinate".
The HCCC's investigation was sparked by a complaint by Ken McLeod from the group Stop the AVN, and the parents of Dana McCaffery, who died of whooping cough, aged four weeks.
In the NSW Supreme Court today, Justice Christine Adamson found neither the complaint by Mr McLeod nor the McCafferys was a complaint under the Health Care Complaints Act 1993.
She also found the HCCC's investigation into the complaints, its recommendation that AVN post a disclaimer and the public warning were not within the jurisdiction of the HCCC.
She ordered the watchdog to pay AVN's costs.
Ms Dorey, of Bangalow on the far north coast, says her eldest son, now an adult, was "vaccine-injured" from the diphtheria-tetanus-polio immunisation when he was two months old and the measles-mumps-rubella shot at 12 months.
She attributes his lifelong sleep apnoea and allergies to the vaccinations. Ms Dorey maintains she is not anti-vaccination, just "pro-information and pro-choice".
Mr McLeod said the decision exposed a gaping hole in public health legislation.
"However, the court did not find that Australia's leading anti-vaccination group was innocent of misleading or dangerous conduct as the commission had found," he said.
"Instead, the court has found that the HCCC did not have jurisdiction. This means that the AVN is accountable for their deceptive conduct to no one. Any crank and charlatan has been given a green light to spread their misinformation, and public health will suffer as a result.
"Clearly there is gap in the legislation that every parliamentarian has a moral responsibility to fix."
The Court did not overturn the Minister for Gaming and Racing's decision to cancel the AVN's Charitable Fundraising Authority.
Louise Hall is a Herald Court Reporter.
