Bias in the Federal Court?

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Complaint against judge raises concerns over separation of powers

A serious constitutional complaint brought against a Federal Court judge has sparked concerns over the impartiality of the Australian judicial system.

The complaint, brought by solicitors PJ O’Brien & Associates on behalf of Victorian GP and pharmacist Dr Julian Fidge, alleges that Justice Helen Rofe concealed her prior connections with Pfizer before dismissing a case brought against the pharmaceutical giant.

Dr Fidge filed for an injunction to prevent Pfizer and Moderna from distributing their mRNA Covid vaccines on the basis that they allegedly contain unlicenced genetically modified organisms (GMOs), which is a criminal offence in Australia under the Gene Technology Act 2000.

However, in a decision handed down on 1 March, Justice Rofe blocked the challenge from being heard in the court, dismissing the case (VID510/2023) on the technicality of standing.

It is a matter of public record that Justice Rofe provided counsel on Pfizer’s legal team on at least five occasions in her career as a barrister, during the years 2003-2006 before she was appointed as a Federal Court Judge in 2021.

The complaint further details Justice Rofe’s extended family ties to the Grimwade pharmaceutical fortune, and her professional ties in the field of medical research.

However, instructing solicitor Katie Ashby-Koppens says that at no point in the proceedings was Dr Fidge’s legal team advised of Justice Rofe’s potential conflicts, which only surfaced after Her Honour’s decision was handed down.

“Judges are duty bound to disclose not only potential conflicts, but also perceived conflicts. Failing to disclose this information is not just a breach of common courtesy, but is a breach of the judicial obligations of a sitting judge,” said Ashby-Koppens in a statement.

“There are 17 judges who sit on the Federal Court Melbourne Registry. Justice Rofe was not the only judge available to hear the matter.”

Dr Fidge’s lawyers have called on Chief Justice Debra Mortimer to investigate their complaint against Justice Rofe, and have requested that Justice Rofe’s decision to dismiss their case be quashed so that the matter can be heard afresh by a judge with no presenting conflicts.

Separately, “We also call on the Parliament of Australia to investigate allegations of misbehaviour of a sitting judge,” said Ashby-Koppens. A copy of the complaint has been circulated to all sitting MPs and Senators.

Under the Section 72 of the Constitution, where potential misbehaviour of a judge has occurred, the parliament can investigate, and can remove the judge if misbehaviour is proven.

Last time the Parliament opened such an investigation was over allegations concerning Justice Lionel Murphy, in May 1986. The investigation was discontinued before any findings could be made, when Justice Murphy announced that he had terminal cancer, and he passed away in October 1986.

James Allan, Professor of Law at the University of Queensland, said there’s no question about what Justice Rofe should have done when presented with this case.

“She should have recused herself. The test is the appearance of bias. Even if the decision maker wasn’t biased, that’s not good enough. The threshold is the appearance of bias,” he said.

However, Professor Allan said that it is unlikely that the court or the parliament will properly investigate the complaint brought against Justice Rofe, predicting that the judiciary will simply “close ranks.”

As for a parliamentary investigation, “This parliament is not going to do that. Your basic argument is that drug companies have too much sway. Have you seen anything in the last five years to show that parliament agrees with that?”

On the contrary, Justice Rofe’s dismissal is the latest in a series of Covid vaccine-related cases dismissed by the Courts on narrowly interpreted technicalities.

A lawsuit seeking to revoke the provisional approval of Moderna’s SPIKEVAX vaccine for babies and toddlers was dismissed, in an unprecedented in-chambers decision, on the basis that it would, “unduly divert the Court from its principal functions,” in March 2023. This was despite the legal team highlighting to the High Court that the case involved “preventable deaths and injuries” of Australian babies and toddlers.

Another lawsuit seeking to prevent the administration of the Pfizer vaccine to children aged five to 11 was dismissed by the Federal Court on the issue of standing, in June 2022.

“It is concerning that where cases have been brought in respect of large pharmaceutical interests that the courts are not allowing the cases to get beyond first base, which means they do not hear the substance of the case or the evidence,” said Ashby-Koppens.

The situation raises questions over whether the separation of powers in Australia is functioning as it should. Power corrupts, and absolute power corrupts absolutely, so the saying goes.

Acknowledging this human tendency, French philosopher Montesquieu wrote in his 1748 treatise, The Spirit of Law (De l’esprit des loix), “When the legislative and executive powers are the same person there can be no liberty…The monarch might enact tyrannical laws and execute them in a tyrannical manner.”

To guard against tyranny, Montesquieu advised that state power should be distributed amongst three institutions: the legislature, the executive, and the judiciary, each keeping a check on the power of the others.

But this is a fiction, said Professor of Law at Sheridan Institute of Higher Education,
Augusto Zimmermann.

“There is no such a thing as separation of powers,” he said. “Australian judges are chosen by the government of the day. This obviously makes every judicial appointment inevitably political in nature and makes accountability impossible to achieve.”

Here, it comes to mind that Justice Robert Beech-Jones was appointed to the High Court of Australia in 2023 after deciding a highly consequential case (Kassam vs.Hazzard) challenging the NSW government’s pandemic public health orders in the government’s favour. That Justice Beech-Jones was touted to be short-listed for the High Court position prior to the hearing did not spur the judiciary, or the government, to request that he recuse himself for appearance of bias.

Like Professor Allan, Professor Zimmermann does not expect that the complaint against Justice Rofe will be handled properly, either by the Court or by the parliament.

“I do not trust the political class to act appropriately,” said Professor Zimmermann.

“The present system is so corrupt at the moment that I am not convinced that [bringing this constitutional complaint] will necessarily lead to a more satisfactory outcome,” he said.

Concerned about apparent judicial bias going unchecked, non-profit Children’s Health Defense (CHD) Australia has kicked off a campaign to educate Australians on Section 72 of the Constitution and equip them to petition MPs and Senators. CHD was co-founded in the USA by presidential candidate Robert F. Kennedy Jnr.

“We hope that Australian MPs and Senators will fulfil their constitutional duties by investigating this complaint against Justice Rofe. It is imperative that the separation of powers is upheld,” said CHD Director, Julian Gillespie. Gillespie is a former barrister who contributed to the case theory in the Pfizer and Moderna challenge case that is the subject of this article.

Dr Fidge’s lawyers have appealed Justice Rofe’s dismissal as a matter of procedure, but they maintain that no appeal should be necessary, as the decision is invalid due to Justice Rofe’s alleged concealment of potential conflicts.

Ashby-Koppens said that the Federal Court responded with a letter postponing the complaint until the appeal is decided.

“It is ill-considered that the Federal Court would require that Justice Rofe’s decision to dismiss our case be appealed, when the decision should be nullified due to serious misbehaviour of a sitting judge,” she said.

Some parliamentarians have taken notice. Senator Malcolm Roberts, of Pauline Hanson’s One Nation, said that the situation is “deeply concerning” and that “it doesn’t pass the pub test for contemporary Australian citizens.”

“I’ve had discussions with other members of parliament who share my concerns,” he said. “The federal constitution’s section 72 exists as a brake on any potential misbehaviour of the judiciary and has been used once before in federal matters.”

The Federal Court was contacted by email several times for comment but did not respond.

Visit www.Section72.au to find out more about the Children’s Health Defense campaign.


This article was first published on Canberra Daily.

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  • Rebekah Barnett

    Rebekah Barnett reports from Western Australia. She holds a BA in Communications (Hons.) from the University of Western Australia, and has worked with Jab Injuries Australia as a volunteer interviewer. Find her work on her Substack page, Dystopian Down Under.

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