A Note on the AVN vs HCCC Judgement

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This morning judgement was handed down in the AVN vs HCCC, a case which Stop The AVN has of course been following closely.

The AVN won.

But is it as simple as that?

Well, it seems it's not that simple. I am most emphatically not a lawyer, but I've been sitting here reading over the text of the judgement.

While the AVN may have won, it most certainly hasn't won.

What?

OK. give me a moment here.

The judgement deals in detail with the matters of technical wording and interpretation on which the case against the HCCC appears to hinge. The wording of section 7 of the Healthcare Complaints Act, it appears, is sufficiently focused that the complaints by Ken McLeod and the McCaffery family do not actually qualify as complaints under the act. Obviously this is a problem, since section 8 goes on to explain that anyone, not just a patient or client, may submit a complaint - yet that complaint may fail under a test of section 7. This is the "individual client" stipulation, a phrase which appears to make the act only relevant to individual care and not to broad public health matters.

To me, this means the act has a clear flaw, but again I am not a lawyer and this is not for me to decide.

No, the interesting part of the judgement, for me, lies in the AVN's application for certiorari.

Huh?

Well, to put this into layman's language, it appears that the case was actually a double-pronged attack against two targets. The AVN's team wished to use the case against the HCCC as a lever to overturn or challenge the later decision of OLGR to withdraw fundraising authority, arguing that the OLGR decision substantially relied on the HCCC decision and the resultant public warning. Cause... Effect.

This judgement explicitly declines to grant certiorari.

Certiorari, as I understand it in this case, means an order for judicial review of a decision, specifically the OLGR revocation. There was much argument centering around prior OLGR cases, questions of reputation, poker machine licence grants and much legal arcana which could be of relevance in getting the OLGR case cracked open - but not relevant to the HCCC case.

So I draw your attention to sections 66 and 67 of the judgement:

66. The plaintiff submitted that its rights were not only directly affected, but also altered, by the HCCC’s decision to issue the Public Warning and that certiorari is accordingly available: Ainsworth at 595, per Brennan J. It argued that the decision directly exposed it to a new hazard of an adverse exercise of public power (having its fundraising capacity revoked). However, the plaintiff could not point to any provision in the Charitable Fundraising Act 1991 that made the Public Warning a mandatory relevant consideration in the Minister’s decision whether to revoke the authority.

67. Accordingly there is no basis on which I could find that the Minister for Gaming is legally obliged to take into account the Public Warning. For these reasons, certiorari does not lie.

So it appears, to me, that the AVN's true aim in this case was to score the double and get themselves a judicial review of the OLGR decision. After all, the OLGR decision directly affects Meryl's individual hip-pocket, whereas the HCCC warning is largely a matter of reputation which will do nothing to stem the flow of dollars from the deluded.

AVN argued that the HCCC order and warning brought them into line-of-fire of a new hazard - that of having their charitable status revoked. The judgement explicitly says that this is not the case. So the AVN, while they've won on paper, have actually lost the part that the organisation would value the most.

Section 68 of the judgement:

 The plaintiff has substantially succeeded although it has not obtained certiorari

If anything, this strengthens the OLGR case in declaring that it does not substantially rely on the earlier HCCC action.

What remains to see is what Dorey will do about it

 

UPDATE: Dave The Happy Singer has an explanation of the case, and the judgement PDF

 

Again, I am NOT a lawyer

posted @ Friday, February 24, 2012 11:31 AM

 
 
 

Comments on this entry:

# re: A Note on the AVN vs HCCC Judgement

Left by jason at 2/24/2012 11:43 AM
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Another interesting phrase from the judgement:

" I do not consider the evidence to be relied upon by the HCCC to be sufficient that there was such a causal link, or that any link could be established in respect of “an individual client”"

If the act is narrowly focused on individual care, then the implications for broader public health issues may be profound. Needs review.

# re: A Note on the AVN vs HCCC Judgement

Left by arthwollipot at 2/24/2012 11:48 AM
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Thanks for explaining.

# re: A Note on the AVN vs HCCC Judgement

Left by WendyW at 2/24/2012 3:18 PM
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Interesting that certiorari was even asked for considering the complaint that I made that led to the OLGR investigation that preceded the Minister's decision to revoke the authority was made months prior to the HCCC findings and issuing of the public warning. My complaint was made citing the relevant sections of the NSW charities legislation. If certiorari had been granted they would have been hard pressed to claim that the advice the then Minister for Gaming and Racing received from his own department re a complaint investigation had anything to do with the HCCC.
IANAL either, but it galls me that the breaches of charities legislation found and referred to NSW Justice/AG are continually ignored by the president of the AVN. Nothing is her/the AVN's fault, it seems.

# re: A Note on the AVN vs HCCC Judgement

Left by Andy at 2/24/2012 3:45 PM
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So I wonder if Meryl will portray this judicial decision as "court-ordered rape" or something, given that Australian law is corrupt, driven by the Illuminati and interested only in shutting down the democratic rights of freedom fighters?

# re: A Note on the AVN vs HCCC Judgement

Left by Jason at 2/24/2012 3:55 PM
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Well, she thinks she's won, and technically I suppose she has, as one part of her case was upheld.

But the important bit wasn't. She's still in the field of fire of the OLGR's big anti-charity-fraud guns

# re: A Note on the AVN vs HCCC Judgement

Left by Andy at 2/25/2012 1:32 AM
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Absolutely. While it's disappointing that she didn't lose, it's difficult to see what she's gained.

They ignored the HCCC ruling to place a notice on their website - and no one was going to force them to do it - and now they don't have to put a notice on their website. So what's really changed for the AVN?

There is one thing though - pro-vax bloggers might want to work back through their archives and choose a new common site to send all AVN links to. Get something useful on the first page of searches.
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