Diluted Thinking

in Australian healthcare

AVSN: Request Review of Name Change

Ed note: for background information on this story, please refer to my previous post AVSN - NSW Fair Trading Orders Name Change

The AVSN has confirmed they have sought a review of the NSW Fair Trading decision of 12 December 2012 that directed the AVSN to change its name.

This was announced in an AVSN E-newsletter published 6 Feb 2013 entitled Letter from Greg Beattie. Excerpts from this E-newsletter appear at the end of this post. But first, a recap of the review process and significant dates.

The Review Process

1. Right to request reasons for decision

The AVSN had 28 days from being notified of the direction to change its name to request reasons for the decision. These reasons were supplied to the AVSN by NSW Fair Trading in the following letter dated 14 January 2013:
SCHEDULE TO DIRECTION UNDER SECTION 11 ASSOCIATIONS INCORPORATION
ACT 2009 (NSW)

The Australian Vaccination Network Incorporated ("the Assocation") was registered under the Associations Incorporation Act 1984 (now Associations Incorporation Act 2009) on 25 November 1994.

The Association currently maintains a website at www.avn.org.au and a Facebook site at www.facebook.com/avn.living.wisdom.

According to email correspondence to NSW Fair Trading from Public Officer Meryl Dorey dated 4 June 2012, the website is self-hosted. Two other blogs are part of the webpage located on the website - 'No Compulsory Vaccination Blog' and 'Australian Skeptics Blog'. All are found on the homepage of the Association.

Prominently displayed on the website on the home page and on other pages is the heading 'Tags'. Under that heading are words in various size fonts, including, but not limited to, the following: 'Adverse Reactions', 'Death from Vaccine', 'Vaccine Injury', 'lies', 'Autism', and 'Conscientious objection'.

An article dated November 29, 2012 states that a 'Government and AMA-funded booklet' is an 'exercise in propaganda and misinformation' regarding the safety and effectiveness of vaccines.

The website maintained by the Association notes that the government and medical communities recommend vaccinations for children, and that the Association represents the 'other side'. Under the heading 'Vaccines' is a drop box entitled 'A Children's Gallery'. If a visitor to the website clicks on that drop box 2 headings are revealed: 'Healthy Unvaccinated' and 'Vaccine Injured'. Under the latter, the articles refer to 2 child deaths due to vaccines and profound injuries to another.

NSW Fair Trading has received complaints from members of the public and the medical community that the Association's name is potentially confusing and may be misleading. Correspondence received refers to the fact that the website features prominently in search engine results where search parameters included the word 'vaccination'. Public concerns focus on the fact that parents searching for vaccination information may believe that the Association, because of its name, offers general, balanced information, for example, the availability, locations and types of inoculations offered within Australia.

Section 11 of the Assocations Incorporation Act 2009 ("the Act") provides the Director-General (meaning the Commissioner for Fair Trading) may direct an association to adopt a new name where the name of the association is unacceptable.

Section 18(1)(f) of the Act provides that a name is unacceptable if the Commissioner is of the opinion that it is undesirable.

Section (18)(1)(g) of the Act states that provides in relevant part that a name is unacceptable if it is declared by the regulations to be unacceptable. The Associations Incorporation Amendment (Unacceptable Names) Regulation 2012 amended the categories of unacceptable names set out in Schedule 2 to include a name that is likely to mislead the public in relation to the nature, objects or functions of an association or proposed assocation or in any other respect.

SCHEDULE TO DIRECTION UNDER SECTION 11 ASSOCIATIONS INCORPORATION
ACT 2009 (NSW)

Consideration

I have reviewed information regarding the Association and the complaints received.

On the basis of the matters set forth above, I have determined that the Association represents a point of view that could be characterised as against or 'anti-'vaccination. The Association's website distributes information via the internet that vaccinations, particularly for children, are unnecessary and potentially dangerous or fatal.

The Association's name 'Australian Vaccination Network Inc.' is confusing and potentially misleading to those seeking information regarding vaccinations.

I am of the opinion that the use of the name AUSTRALIAN VACCINATION NETWORK INCORPORATED by the Association is against the public interest. It is undesirable and is therefore unacceptable pursuant to section (18)(1)(f) of the Act.

I am of the opinion that the name AUSTRALIAN VACCINATION NETWORK INCORPORATED is a name likely to mislead the public in relation to the nature, objects or functions of the Association or in some other respect, and is therefore unacceptable under Section 18(1)(g) of the Act.

Accordingly I consider that the statutory criteria in section 11 of the Act is satisfied, enabling me to issue a Direction to you as an association under the Act.

I hereby DIRECT AUSTRALIAN VACCINATION NETWORK INCORPORATED to change its name.

The Association is required to lodge an application for registration of a change of name by
21 March 2013 at 12 noon.

If an application for registration of a change of name is not made on or before that
date, Australian Vaccination Network Incorporated's registration may be cancelled.

Robyne Lunny
A/General Manger
Registry of Co-operatives and Associations
NSW Fair Trading

14 January 2013

Source: NSW Fair Trading response (PDF)

2. Right to apply for an internal review

If the AVN is not satisfied with the reasons for the decision by NSW Fair Trading, they have 28 days from being notified of the reasons to lodge an application with NSW Fair Trading for an internal review.

NSW Fair Trading must then conduct an internal review, which is to be dealt with by someone other than the original decision maker. The result of the internal review and reasons for the decision must be given to the AVN within 21 days of the application for internal review being lodged.

The latest date the AVN could lodge an application for an internal review is 11 February 2013, and therefore the latest date NSW Fair Trading could provide the outcome is 4 March 2013.

3. Right to apply for a review by the Administrative Decisions Tribunal

If the AVSN is still not satisfied after the internal review is finalised, they may then apply to the Administrative Decisions Tribunal for a review of the decision. This application must be made within 28 days of the outcome of the internal review. As noted previously, the latest date the internal review can be completed is 4 March, therefore the latest date the AVSN could submit this application is 1 April 2013.

Note: the AVSN is only able to apply to the Administrative Decisions Tribunal for a review upon finalisation of NSW Fair Trading's internal review.

AVSN E-newsletter published 6 Feb 2013

Excerpt from the above E-newsletter relating to the name change, with commentary:

Our name

You would have heard by now that AVN has been directed to change its name. I'll take this opportunity to tell you what this all means, from the Committee's perspective, and what we intend to do about it.

NSW Fair Trading (through whom we are registered as an Incorporated Association) issued the directive on December 12 in response to complaints our name was confusing and misleading. The directive is a "reviewable decision" meaning it can be reviewed (or challenged) if we think it's unfair. The review process can be short or long depending on how far it goes.

The Committee discussed our options at length. No material reasons were given for the directive, and no suggestions of alternative names were offered, despite us making two written requests for these.

This left us in a difficult situation. In order to change our name we needed to call a special general meeting of members, propose a new name, and have it pass by a 75% majority vote. This simply wasn't possible while we hadn't been told what changes needed to be made to our name, nor given reasons why it even needed changing. How could we take this to our members?

We anticipated many questions. The most obvious were... what's wrong with the current one? Sorry, don't know. Well, what makes you think this one will be ok? Ummmm.... don't know. Sorry.

It is entirely obvious to anyone why the AVSN's name is misleading. Just select a name that either:

They could probably keep the word "vaccination" in the name if it was modified with terms such as "anti-" or "questioning", etc. This is not a difficult concept.

"... and no suggestions of alternative names were offered..."

How totally ridiculous to expect NSW Fair Trading to do that. But did the AVSN provide NSW Fair Trading with a few name suggestions and ask if they were suitable? It appears not.

Our options were:

1. Wind the AVN up. This was a very practical option. There had been so many complaints we had to fend off over the past few years. By staying on as an Incorporated Association, these complaints were likely to continue or even escalate. There was a well-organised group out there who publicly stated their mission was to destroy us, and they'd been making complaints to every regulator they could think of. If we wound up, we wouldn't be subject to the same level of scrutiny. It would make life much easier. The AVN could still continue in some form, just not as an incorporated association in NSW.

"There had been so many complaints we had to fend off over the past few years."

Solution: operate according to the rules and regulations.

"If we wound up, we wouldn't be subject to the same level of scrutiny."

This scrutiny is necessary to protect the public from fraud and scams. Charities that operate within the regulations should have nothing to fear from scrutiny. However, the AVSN has a long and sordid history of acting improperly. Here is just a sample:

Why doesn't the AVSN register with the Australian Charities and Not-for-profits Commission? The ACNC is a new government body that oversees and regulates the charity sector and it significantly decreases the current administrative burden on state-registered charities. The AVSN qualifies to register with them at any time.

Unfortunately, this would also send a clear message to our attackers. Good on you. You did it. It was dirty but you pulled it off. You brought about the demise of a volunteer run not-for-profit charity organisation via serial complaining, abuse, threats, pornography, and more abuse. What would that teach future generations? If you don't like something, here are the best tools to use.

"volunteer run not-for-profit charity"

The AVSN employed up to four office staff until 2011 and Meryl Dorey drew a payment for many years up until January 2013. The AVSN's repeated claim of being volunteer run is intentionally misleading.

"serial complaining"

As outlined earlier, charitable organisations should be open to scrutiny to protect the general public's purse. Complaints only become an issue for those organisations operating outside of the regulations.

"abuse, threats, pornography"

Of course this is not acceptable. However, the AVSN has grossly distorted and exaggerated all but a single event (the outcome of which, curiously, they have not yet publicised). Criticism, even passionately communicated, does not constitute abuse or threat. To the best of my knowledge, the pornography relates to a single occurrence by an unknown individual which was widely condemned by even the AVSN's most ardent critics.

"here are the best tools to use"

I strongly recommend that members of the public submit complaints to the relevant authorities if they are aware of any charity operating outside of the regulations. I also encourage people to raise awareness in the general public - in a reasonable manner - about such a charity and its wrongdoings.

2. Call a general meeting and propose a name change. We had the time to do that: propose a new name, and hopefully get it passed by a 75% vote. But which new name would we choose? We'd been given no suggestions by Fair Trading of changes they would accept. We hadn't even been told what was unacceptable about the current name. What if we picked one and they said no?

More importantly, this was unlikely to stop the complaints. Those attacking AVN would probably throw a party about how they made us roll over, the media would trumpet the story far and wide, and next week we would face double the complaints.

Mmm. Option 1 was looking better. Even though it was possibly worse than rolling over, the attraction was we'd no longer be incorporated, and therefore no longer accountable to the same laws. This was the way our attackers worked. They have no legal structure whatsoever. Just a Facebook page.

As discussed earlier, it is obvious to everyone except the AVSN as to what names may be acceptable. A simple straightforward approach might have been submitting a few name suggestions to NSW Fair Trading for the green light, then taking those names to the vote.

"Next week we would face double the complaints"

Only if the AVSN doubled what they were doing wrong.

"therefore no longer accountable to the same laws"

This really is the AVSN's major problem and concern. Those pesky rules and regulations keep getting in the way of misapplying raised funds.

"This was the way our attackers worked. They have no legal structure whatsoever. Just a Facebook page."

Non sequitur. I have no idea what relevance the legal structure of anything else has to do with the AVSN. Feel free to replace "attackers" with "critics".

However, the AVSN would rid itself of all reporting requirements and obligations under the Associations Incorporation Act and Charitable Fundraising Act if it closed and restarted as an unincorporated body. It would lose its charitable status but it could still have members and accept donations as long as they weren't solicited as being for a charitable purpose.

3. ReviewThis was an appeals process. We could have the decision tested to ensure it stood up to scrutiny. We liked this idea. After all, we hadn't been given any reasonable explanation. If our name really was unacceptable, then we were certainly entitled to ask why.

And in fact, asking why was the first step of the review process. Now don't get me wrong. It wasn't that we hadn't asked before. We had. Twice. In writing. But we hadn't received a response. This alone was enough to convince us the decision was worth testing.

We decided to take the steps necessary to find out why the decision was made. The worst that could happen is we would be forced to fall back on option 1 or 2.

It is entirely reasonable, and expected, that any organisation in this position would request a review.

One thing we wanted to avoid was having to pay for professional representation. We were fortunate in our Supreme Court hearing last year in that our barrister acted on a pro bono basis. Even then, we were left substantially out of pocket as not all costs were covered.

This time around, we considered appealing to members to once again contribute to a fighting fund but we were reluctant to do so knowing the complaints would likely continue. So, while deciding to explore the possibility of pro bono help, we prepared to head into the review process without it if need be. Thankfully, the Tribunal (should the process continue that far) is designed to proceed with as little formality as circumstances permit.

"Even then, we were left substantially out of pocket as not all costs were covered."

"we considered appealing to members to once again contribute to a fighting fund but we were reluctant to do so knowing the complaints would likely continue"

I would suggest their reluctance stems from being bound by government regulations in regard to fundraising. The AVSN breached regulations last year by failing to provide information to the public about another, separate, legal fundraising appeal.

A question is also raised by the assertion they were out of pocket after the Supreme Court hearing. Irrespective of their pro bono counsel, the Supreme Court awarded costs against the HCCC. This means that most of the AVSN's legal costs were borne by the HCCC. In addition to this, the AVSN advised in their E-newsletter dated 6 August 2011 that they'd raised $25,900 for legal expenses. I would like to see itemised accounts of these so-called out of pocket expenses that weren't covered by the Supreme Court's costs order and a $26K legal fund.

It is worth nothing that, coincidentally, August saw the only published issue of Living Wisdom for 2011. Given the significant printing costs of this magazine, it begs an obvious question.

The initial step of the review process was to invoke Section 49 of the ADMINISTRATIVE DECISIONS TRIBUNAL ACT 1997. This compels the decision maker to give us detailed reasons for their decision. Mind you, as mentioned earlier, we'd tried asking informally for this two times with no response. Now we were able to demand it.

We received the reasons on January 16 (click to read). The Committee met at the end of January to discuss and reconsider the three options. It was agreed the reasons didn't seem to be satisfactory. We decided to press on with a review. Our next step is to request an internal review. This is where another person in the department checks the decision - someone who had no involvement with originally making it.

We should receive the outcome of this within three weeks of requesting it. If there is no change to the decision and the Committee still feels the reasons are unsatisfactory, we can then move on to the next stage, which is a review by the Administrative Decisions Tribunal. The Tribunal operates as it sees fit. It may conduct a hearing, informal conferences or simply review written submissions. Finally, a decision will be made as to whether the original decision is to be kept, set aside, or modified. Further avenues of appeal are available afterward if either party is still unhappy.

Win-win?

Ironically, while overturning this decision would appear to be a 'win' for us, it could also prove the most troublesome outcome. We would probably be under constant threat of further complaints. Our opponents don't take kindly to defeat. When the AVN defeated a Health Care Complaints Commission decision last year (in the NSW Supreme Court) the response was an increase in complaints to more than a dozen regulating bodies. We simply can't keep responding to these, much less afford professional representation for them.

Option 1 certainly looks the easiest. I guess it's our desire for justice that prevails though. In the words of Dennis Stevenson, ex ACT Member of the Legislative Committee:

"There's nothing more dear to our hearts than justice. Nothing can cause a greater determination to put things right, than injustice. Every one of us at some time believed in justice, even if only briefly. For many, that might seem a long time ago. For me, it's been a passion all my life. I never stopped searching. I never stopped campaigning. Know that I'm just one of many. There are millions of us."

It's difficult to roll over when the decision to force us to change our name seems unjust. When it comes in the wake of another decision found to be unjust, and hot on the heels of a string of complaints orchestrated by a group which is not incorporated, and therefore not subject to the same scrutiny we are, our confidence in the surrounding justice is further eroded.

If members have thoughts they would like to contribute to committee discussions on this issue please feel free to email us at info@avn.org.au. Please be sure to include your name on these emails so we know they're coming from legitimate members. We've had numerous requests from people posing as members lately.

Kind regards,
Greg Beattie,
AVN President

It seems to me that the AVSN is not so much tired of the complaints, but is tired of being regulated. AVSN's resentment of being bound by rules that its critics are not subject to is both amusing and somewhat pathetic.

If it makes the AVSN feel any better, they have my assurance that I wouldn't for one moment congratulate its critics if they closed. I would see it for what it is; simply avoiding all government regulation.

Source: Letter from Greg Beattie