Australia's judicial integrity under fire after judge in COVID vaccine case is accused of failing to disclose links to Pfizer
Drug giant Pfizer is facing lawsuits in several countries over allegations of false claims about the effectiveness of its COVID-19 vaccine and concealing its risks.
In a lawsuit filed last week against the company by the Attorney-General for the American state of Kansas, it is alleged that Pfizer concealed evidence that the shot was linked to pregnancy complications, including miscarriage, as well as myocarditis and pericarditis (these last two conditions are now recognised adverse reactions by the US Food and Drug Administration).
The lawsuit also alleges that Pfizer misled the public by stating that the jab would prevent not only illness but transmission.
In fact, Pfizer executive Janine Small admitted to an EU Parliamentary inquiry in October 2022 that Pfizer never tested the COVID jab in relation to preventing transmission.
When the FDA approved the Pfizer vaccine for use in December 2020, it admitted there was no “evidence that the vaccine prevents transmission of SARS-CoV-2 from person to person”.
In November last year, Texas sued Pfizer for unlawfully misrepresenting the effectiveness of the company’s COVID-19 vaccine and attempting to censor public discussion of the product.
This follows on from the FDA's unsuccessful attempts to suppress Pfizer's clinical trial data for 75 years.
Moreover, two weeks ago, a report was published in the reputable BMJ Public Health on a new study, finding that COVID vaccines could be partly to blame for a rise in unprecedented excess deaths in the US and other Western countries in the three years since the pandemic.
The report finds that risk factors were substantially present in clinical trials of the vaccines.
As I've previously said on SkyNews.com.au in this column, the Western Australian Government last July published data that showed the number of adverse events reported for COVID-19 vaccines was about 24 times the rate of other established vaccines, particularly in the 18-24 and 25-29 age groups – those least as risk from COVID.
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Considering these developments, an action was brought against Pfizer in the Federal Court of Australia last March.
Interestingly though, this case has resulted in an official complaint being made against the judge hearing the matter on account of misconduct.
As recounted in a detailed article by eminent law Professors Augusto Zimmermann and Gabriël Moens, in ‘Re Dr Julian Fidge v Pfizer Australia Pty Ltd & Anor’, injunctions were sought in the Federal Court against Pfizer and Moderna on the basis that they failed to apply for necessary licences to deal with Genetically Modified Organisms (GMOs) in Australia under the Commonwealth Gene Technology Act 2000 (GT Act).
Dr Fidge sought to present evidence showing the mRNA vaccines produced by Pfizer and Moderna objectively satisfy the legal definitions of GMOs, pursuant to section 10 of the Act.
If this were the case, the court then had to consider the question whether Pfizer and Moderna had knowingly breached the GT Act.
If the court so found, then Pfizer and Moderna would be prevented from further using their mRNA COVID vaccines in Australia.
The judge hearing the matter, Helen Rofe, found in favour of Pfizer and Moderna, dismissing Dr Fidge’s case on the grounds that it had no prospects of success since he is not an “aggrieved person” for the purposes of section 147 of the GT Act.
This is where the matter gets intriguing.
To avoid any reasonable apprehension of bias, judges are required to consider whether having acted for one of the parties appearing before them in the past ought to be disclosed.
However, the law firm representing Dr Fidge alleges that at no stage either prior to or during the hearing of the case, did Justice Rofe disclose that, while practising as a barrister, she seemingly both directly and indirectly represented Pfizer in at least five separate and long-running matters.
As Zimmermann and Moens affirm, the rules regarding judicial bias require that, when a judge has had prior dealings with one or more parties to proceedings, he or she is obliged to consider disclosing all details and inviting the parties to make submissions on whether that judge should recuse him or herself from the proceedings.
While her Honour’s work as counsel for Pfizer is a matter of public record, it is alleged that no such disclosure was made to Dr Fidge’s legal team occur in this case.
The complaint, by PJ O’Brien & Associates, against Justice Rofe has been made not just to the Federal Court, but also to all Members and Senators of Parliament in accordance with section 72 (ii) of the Commonwealth Constitution, which allows judges to be removed from their position on the ground of proved misbehaviour or incapacity.
Irrespective of the merits of the case, as stated in the complaint, “a reasonable observer could and can conclude that by Justice Rofe not disclosing the prior and significant relationship with Pfizer, and close working relationships and familial ties (with the pharmaceutical industry), this created and creates a perception her Honour intended to conceal her prior relationship with Pfizer, and ostensibly from the applicant in the case (Dr Fidge)”.
The complaint is being supported in the Parliament by Senators Malcolm Roberts, Gerard Rennick, Ralph Babet, Alex Antic and Russell Broadbent MP.
This matter is not as much about COVID as it is about the principle of judicial integrity.
While SkyNews.com.au does not suggest that Justice Rofe’s previous relationship with Pfizer influenced her Honour’s decision making, to maintain public confidence in the courts, and in the fundamental principle of the separation of powers, judges are duty bound to disclose not only potential conflicts, but also perceived conflicts.
Justice must be imparted without fear or favour.
In the words of the great English jurist, Lord Denning: “Justice must be rooted in confidence: and confidence is destroyed when right-minded people go away thinking: ‘The judge was biased’”.
Dr Rocco Loiacono is a legal academic, writer and translator. Earlier in his career, he spent a decade practicing as a lawyer with Clayton Utz, one of Australia’s top law firms. As well as SkyNews.com.au, he regularly contributes opinion pieces, specialising in politics, freedom and the rule of law, to The Daily Telegraph, The Herald Sun and The Australian.
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