AVN - NSW Fair Trading Orders Name ChangeIn a letter dated 28 August 2012, the public officer of the Australian Vaccination Network (Meryl Dorey) was asked to supply reasons as to why their association's name is not misleading and/or deceptive by NSW Fair Trading. The content of this letter is reproduced below or you may view the original letter at the AVN's website Letter from NSW Fair Trading dated 28 August 2012
AVN asked to supply reasons why their name is not misleading and/or deceptive by NSW Fair Trading
Dear Ms Dorey
NSW Fair Trading and the Hon Anthony Roberts MP, Minister for Fair Trading, have recently begun receiving an increasing number of requests to have NSW Fair Trading amend the name of the Australian Vaccination Network Incorporated, based on the contention that the name is misleading and deceptive, and therefore undesirable.
You may be aware that the Commissioner for Fair Trading has the power under the Associations Incorporation Act 2009 to deem that a name is unacceptable or undesirable in certain circumstances. This then gives rise to a power under the same legislation to oblige an association to change its name, or face deregistration.
Given that a level of community concern now exists regarding this issue, I would appreciate receiving reasons from the Australian Vaccination Network Incorporated as to why it considers that the association's name is not misleading and/or deceptive with respect to the association's activities. I would also appreciate receiving an indication as to whether the association would consider taking steps to clarify the nature of its activities in its name.
Your response within three weeks of the date of this letter would be appreciated.
Assistant Commissioner, Compliance & Enforcement
Meryl Dorey, as AVN National President on behalf of the AVN National Committee, gave this response to NSW Fair Trading in a letter dated 7 September 2012. A pdf version of this letter is available for download from the AVN's website Don Jones 07 09 12 re Name Change
Dear Mr Jones,
Thank you for your assistance in answering my questions on the afternoon of Tuesday, September 4th, 2012.
I write to you in response to your letter dated August 28th, 2012 and received at our office on Monday, September 3rd, 2012.
I am aware of the powers of the Commissioner for Fair Trading under the Associations Incorporation Act, 2009 to deem that the name of an organisation is unacceptable or undesirable.
The Australian Vaccination Network has been registered with the Department of Fair Trading since 1996 and at no time until the present has our name been called into question. We represent a group of Australians who discuss the issue of vaccination and we are also a network of like-minded individuals who have banded together for mutual support and for the dissemination of information on the issues surrounding vaccination in Australia. Can you please inform us which of these words - Australian - Vaccination - Network, could possibly be considered to not represent our organisation? Which of these words does the Department consider to be misleading and why? Also, can you please inform us of what name the Department would consider to be appropriate for our organisation?
We are well aware that there are those within the community who disagree with some of our activities. They oppose open discussion of vaccination, and feel that consumers should not have the opportunity to view information and viewpoints which are at odds with their own.
In 2009 some of these individuals started a group called Stop the Australian Vaccination Network (SAVN) whose goal - as their name suggests - is to stop our volunteer-run parent and health practitioner-supported organisation in any way they can. SAVN is not representative of those within the community who disagree with our viewpoint and their methods have included threats of physical violence, intimidation, the posting of violent pornographic images and, as you have seen, a spate of complaints to various government bodies - both federal and state. These bodies have included the Department of Fair Trading, the Office of Liquor, Gaming and Racing, the Health Care Complaints Commission, the Federal and various State Departments of Health and ASIC amongst others.
We believe that the "level of community concern" you mentioned in your letter is merely a level of concern being expressed by members of SAVN who have taken it upon themselves to force an organisation to close simply because they disagree with our viewpoint on a medical issue. We also believe that in a democracy, all viewpoints should be allowed since suppression of any side of a scientific debate is never in the best interest of the community.
The people who complained that our name is objectionable only did so because they feel what we say is objectionable. Their complaints are about stopping our message and information - they have nothing to do with our name per se. These same people regularly try to stop seminars and information meetings held by the AVN and their attempts to block our freedom of communication should be opposed by your Department.
To use the powers of the Department to force a name change or to deregister the AVN would serve only to further the political agenda of a particular group and would not serve the purpose or intent of the Act under which the Department is operating. Such a perversion of the Department's regulations, used to stifle a particular point of view, could be in breach of Australian law and in contravention of the spirit of free speech and democracy which Australians hold so dear.
As Dr Brian Martin has stated in his article on the attacks against our organisation, focusing here on the campaign of complaints against us with various government departments (Debating Vaccination (http://avn.org.au/about-av/debating-vaccination/):"McLeod's complaint to the HCCC is not a legal action, so it cannot be described as a SLAPP, but it has a similar dynamic. It could be called a SCAPP, a Strategic Complaint Against Public Participation. A SCAPP, like a SLAPP, shifts a public debate into a different arena that ties up the target of the complaint in prolonged procedures, requiring a large time commitment with the risk of an adverse finding.Whether you agree or disagree with what the AVN does, for the Department to act on these complaints about our name would mean it has become a de-facto tool of those who want to destroy our organisation and seek to prevent our ability to present our viewpoint to interested audiences.
Others, besides McLeod, have complained to the HCCC about the AVN. Furthermore, complaints about the AVN have been made to the Office of Liquor, Gaming and Racing, the Department of Fair Trading, the Australian Securities and Investments Commission and other government bodies. This is evidence of a concerted campaign against the AVN using official complaints. The acronym SCAPP thus seems warranted. An adverse formal outcome is not essential to the effectiveness of a SCAPP as an attacking tool. The complaints have required Dorey to spend large amounts of time and effort, and have produced anxiety."
The cost to the taxpayer of these endless investigations must run into the millions of dollars. The cost to our organisation in time, membership funds and stress to the individuals involved is also not inconsiderable.
We are parents and consumer advocates who are simply trying to help other parents who have come to us for information and support. We are fighting a battle not of our making and it is not one we have or ever would have chosen.
Our committee does not believe that our name is misleading and / or deceptive in any way. Instead, we believe that the name Australian Vaccination Network perfectly describes who we are, what we stand for and why it is essential that in any health debate, there must always be room for both sides to be aired with openness and respect.
AVN National President
on behalf of the AVN National Committee
If I was an AVN member or supporter I would be dumbstruck after reading Dorey's response. I don't understand why she didn't lead in with her final paragraph and spend the rest of the letter defending that position. This was the time for the AVN to make a strong argument for retention of their name; an argument that I believe was not that difficult to make. To waste this opportunity on an irrelevant and sloppy outburst about SAVN, irrelevant and juvenile comments about free speech, democracy and NSW Fair Trading, and completely failing to address the issue at hand, should make AVN members think twice about who they have appointed to act on their behalf. In addition, they should think carefully about any future requests by the AVN for donations for legal fees when the situation may well have been resolved at this point in time. No doubt an appeal will see a reasonable and rational argument being made by the AVN. Why that argument wasn't made now is a question that all AVN members should be asking the committee; after all, it is the membership that will ultimately be paying for an appeal.
It will come as no surprise to discover that in a letter dated 12 December 2012, NSW Fair Trading ordered the Australian Vaccination Network to change its name. An excerpt of the letter appears below or you may download the full pdf version from the AVN's website Hand-delivered letter re:name change
Dear Mrs Dorey
AUSTRALIAN VACCINATION NETWORK INCORPORATED (Y2079127)
DIRECTION TO CHANGE NAME PURSUANT TO SECTION 11 OF THEI am writing to you as the recorded public officer for Australian Vaccination Network Incorporated (the Association). This direction must be presented to the Association's committee for their urgent consideration and action.
ASSOCIATIONS INCORPORATION ACT 2009
NSW Fair Trading records show the association was registered under the Associations Incorporation Act 1984 (now Associations Incorporation Act 2009) on 25 November 1994.
Section 11 of the Associations Incorporation Act 2009 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 Director-General is of the opinion that it is undesirable.
I have enclosed copies of relevant sections of the Act for your reference.
NSW Fair Trading has received complaints that the Association's name is confusing, misleading and has misled the public as to the operational intention of the Association. I have reviewed information regarding the Association and the complaints received.
I am of the opinion that use of the name AUSTRALIAN VACCINATION NETWORK INCORPORATED by your Association is against the public interest. It is undesirable and is therefore unacceptable pursuant to section (18)(1)(f) of 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 FEBRUARY 2013. 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.
Right of review
You may apply to the Administrative Decisions Tribunal for a review of this direction. However before making any such application the Adminstrative Decisions Tribunal Act 1997 requires that you seek an internal review of my decision. Such a review, if requested, will be conducted by an officer within the Department of Finance and Services who was not substantially involved in the making of this decision. I have enclosed an information sheet on decisions reviewable by the Adminstrative Decisions Tribunal.
12 December 2012
As of 20 December 2012, the AVN has not confirmed that they intend to appeal (strictly speaking, it is asking the Administrative Decisions Tribunal to review the decision). If they do appeal, the process is as follows:
- the AVN must notify NSW Fair Trading within 28 days after being notified of the decision that it requests an internal review of the decision (by 8 Jan 2013);
- the result of the internal review and reasons for the decisions must be given to the AVN within 21 days after the application for the review is lodged;
- once the review is finalised, the AVN may apply to the Administrative Decisions Tribunal for a review of the decision.
If the AVN accepts the order to change their name they must lodge a change of name application on or before 21 February 2013 or their registration may be cancelled.
In the event that the Director-General decides to cancel the AVN's registration, the Assocations Incorporation Act 2009 covers the winding up of an association. The Director-General may give the AVN an opportunity to voluntarily wind up the organisation, but if it fails to do so in the specified time, Sect 63 of the Act covers the involuntary winding up of an association.
Sect 77 of the Act deals with the distribution of assets:
77 Distribution of assetsThe AVN's 2010 annual statement shows net assets of $35,430 (later figures are not available as the AVN has not filed their 2011 annual statement).
- On the cancellation of an associations registration under this Division, the association's property vests in the Director-General.
- The Director-General:
- may give such directions as the Director-General considers just for or with respect to the payment of the association's debts and liabilities, the distribution of its property and the winding up of its affairs, and
- may appoint a person for the purpose of investigating the affairs of the association with a view to the realisation of its property, payment of its debts, discharge of its liabilities, distribution of its property and winding up of its affairs, and
- may do all such other acts and things as are reasonably necessary to be done for the purpose of the exercise of the Director-General's powers under this section.
- The Director-General is entitled to be paid out of an association's property any costs reasonably incurred in the exercise of the Director-General's powers under this section in relation to the association.
- Section 65 applies to and in respect of the distribution of any property remaining after satisfaction of the association's debts and liabilities under subsection (2) and the payment of the Director-General's costs under subsection (3) in the same way as it applies to and in respect of the distribution of surplus property under that section.
Now I'd like to draw your attention to Sect 83 of the Act:
83 Certain liabilities not affected by cancellation
The cancellation of an association's registration does not affect any liability of any former public officer or former committee member and any such liability may be enforced as if the association's registration had not been cancelled.
And this is where things get interesting.
My previous post AVN - Living Wisdom Scam shows that the AVN has received over $400,000 for magazines it has failed to supply. Will this be considered a debt or liability as per the Act? If so, then all serving committee members of the AVN from January 2010 to the present day are in for a shock.
As an incorporated association the AVN is a legal entity separate from its members. The members of the management committee of an association also have limited liability for the debts of an association, as long as they follow accepted business and community standards. Ouch. You don't need to be a lawyer to figure out that selling goods that you knew were not being supplied for a 3 year period is not an acceptable business or community standard. No public liability insurance would cover a situation involving an activity that sails this close to being fraudulent, either.
If the AVN is to be wound up and the unpublished magazines are considered a debt or liability, then the committee members will find themselves personally liable. I do not know if committee members from 2010 onwards are actually aware of the precarious position they're in with regard to the magazine scam. But I do know that if I was one of them, I'd be seeking independent legal advice immediately and doing everything possible to avoid the AVN's closure at this time.
Posted: 20 Dec 2012