Case note: Fidge v Pfizer Australia Pty Ltd [2024] FCA 161

On 1 March 2024, Rofe J of the Federal Court of Australia (FCA) delivered a decision concerning an application brought by a medical practitioner, Dr Julian Fidge, in July 2023, against the pharmaceutical companies Pfizer Australia Pty Limited and Moderna Australia Pty Limited (the respondents).

The applicant sought an injunction under s 147(1) of the Gene Technology Act 2000 (Cth) (GT Act), which permitted an ‘aggrieved person’ to obtain an injunction from the FCA as against any conduct that was or would be an offence under the GT Act or the Gene Technology Regulations 2000 (Cth) (GT Regulations). An injunction so ordered would restrain the offending party from engaging in the conduct.

It is important to note that the applicant had formed the view that the vaccines sponsored by the respondents, which are generally known as mRNA vaccines (mRNA vaccines), were, or had contained, genetically modified organisms (GMOs) as defined under s 10 of the Gene Technology Act 2000 (Cth) (GT Act). While the meanings of these words might well be ‘at large’ in the scientific literature, the application in this case was framed in terms of the legal meaning of this expression, which was provided under s 10 the GT Act, as follows:

genetically modified organism means:

(a) an organism that has been modified by gene technology; or

(b) an organism that has inherited particular traits from an organism (the initial organism), being traits that occurred in the initial organism because of gene technology; or

(c) anything declared by the regulations to be a genetically modified organism, or that belongs to a class of things declared by the regulations to be genetically modified organisms;

but does not include:

(d) a human being, if the human being is covered by paragraph (a) only because the human being has undergone somatic cell gene therapy; or

(e) an organism declared by the regulations not to be a genetically modified organism, or that belongs to a class of organisms declared by the regulations not to be genetically modified organisms.

As I have argued elsewhere, the applicant’s submission appeared to completely omit any reference the GT Regulations. This was unusual, since the GT Regulations declare a broad range of organisms to to be not GMOs (notwithstanding s 10 of the GT Act) pursuant to the subsection (e), above. For instance, ‘Schedule 1: Organisms that are not genetically modified organisms’ contains 10 items; and Schedule 1A: Techniques that are not gene technology’ contains 11 items, which appear to affect many GMOs. Indeed, it might be argued, as I have argued, that the applicant’s failure to consider the applicability of these exemptions rendered the submissions inadequate.

In any event, the applicant had formed the view that the mRNA vaccines were GMOs under the GT Act as a result of reading various sources. These included some refereed articles, some preprint publications concerning the genetic profile of the mRNA vaccines, various online documents, and other sources (many of which were presented on a webpage published by the Australian Medical Professional Society in respect of the proceedings). However, none of these sources appeared to consider the legal meaning of the expression GMO under the GT Act.

Nevertheless, on the basis of the above view, the applicant asserted that the respondents were required to obtain licenses under the GT Act from the Office of the Gene Technology Regulator (OGTR) to ‘deal with’ those mRNA vaccines pursuant to s 40 of the GT Act. The requirement to obtain licences in respect of the mRNA vaccines followed from the asserted conclusion that they were GMOs under the GT Act. Since the respondents had not obtained those licences, the applicant submitted, the importation, distribution and transportation of the vaccines (among other acts) constituted offences under ss 32 and 33 of the GT Act. In committing the offences, the conduct of the respondents could now be restrained by the FCA under s 147(1) of the GT Act — although it was not clear whether the relief sought (the injunction) was intended to apply to the impugned activities in general or only insofar as they related to the applicant.

While the evidence relating to the applicant’s belief that the mRNA vaccines were, or contained, GMOs was submitted to the FCA, Rofe J disregarded this evidence because the question of law underlying the applicant’s action — were the mRNA vaccines GMOs? — was unneccessary to determine in these summary judgment proceedings. That was because the proceedings really concerned the anterior procedural question whether the applicant had standing to make the application.

The reason a summary judgment was delivered was because summary judgment had been sought by the respondents. They averred that the applicant lacked standing in reliance of s 147(1) of the GT Act, which effectively defined what an ‘aggrieved person’ was in respect of the GT Act:

If a person has engaged, is engaging, or is about to engage in any conduct that is or would be an offence against this Act or the regulations, the Federal Court of Australia (the Court) may, on the application of the Regulator or any other aggrieved person, grant an injunction restraining the person from engaging in the conduct.

The respondents submitted that the purpose of s 147(1) was to confine standing to persons aggrieved by actions done contrary to the GT Act [42]. Pfizer submitted, in effect, that not any person affected by (or even especially affected by) any product regulated or partially regulated by the GT Act would attain standing by virtue of their status as an affected person; instead, s 147(1) is drafted so as to narrow the scope of standing to those persons who are aggrieved directly by regulated dealings under the GT Act and where the regulation of those dealings are virtually the sole province of the GT Act. In other words, the provision, as Rofe J summarised the argument (at [42]),

is not intended to afford a broad remedy for any person with either general or specific grievances with GMOs arising from activities, uses or conduct not regulated by the GTA. This includes health and safety risks to consumers that may only be indirectly related to dealings under the Act, especially where such risks are specifically regulated by other statutory regimes or bodies.

As against this submission, the applicant contended that the GT Act has a far broader purpose, which includes the protection of the health and safety of the public. It thus followed that the applicant would have standing because, if the mRNA vaccines were or contained GMOs as the applicant submitted, and if this meant the mRNA vaccines had the potential to harm patients, then the applicant, as a person who had consumed the mRNA vaccines and had administered the mRNA vaccines, was a person protected by the GT Act, and in particular its object to regulate ‘risks to the end user or recipient of a GMO product, in particular the safety and efficacy of a therapeutic GMO product’ [43].

Given the above submissions, Rofe J understood the task of the proceedings as resolving the question of law whether the applicant was an aggrieved person based on the characterisation of the GT Act averred by the applicant. In this way, the case revolved not so much on whether the mRNA vaccines were, or contained GMOs, but on whether the applicant was protected as a consumer of a therapeutic good by the GT Act, whose purpose, as the applicant contended, was protective of such a class of persons.

On top of that, the applicant had to show that, even if this was accepted, that he, above others, had a ‘special interest’ in the alleged protective purpose of the Act, as was required by the general (common law) of standing [43]. This was always going to be a difficult thing to prove, because, after all, the applicant was one of millions of consumers of the mRNA vaccines, as well as one of thousands of health practitioner to have administered them to patients.

In the end, Rofe J found that the applicant did not have standing. The authority most analogous and relevant to the applicant’s submissions was Ogle v Strickland (1987) 13 FCR 306 (Ogle). That case involved a Christian ministers of religion identifying themselves as persons aggrieved by a decision by a censorship agency to permit an allegedly blasphemous film into Australia (see [129]). Although the authority of Ogle has been questioned several times since — including as observed by Jagot J in Australian National Imams Council Ltd v Australian Communications and Media Authority (2022) 404 ALR 323 at [91] — Rofe J found that her Honour was bound to follow the decision because it had not been overturned and the respondents did not challenge it.

Again, Ogle was a case in which certain Christian ministers argued that they were, and were found to be, persons aggrieved in respect of a decision of a censorship agency to permit an allegedly blasphemous film to be imported into Australia. The relevant statutory provision regarding aggrieved persons in that case appeared in s 5(1) of the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act). That provision simply stated that certain aggrieved persons would be able to apply to the (then) federal court in various circumstances. Lockhart J found that the clergymen were persons aggrieved (at 318) notwithstanding that they did not have any legalistic special interest in the subject matter of the proceeding. As Lockart J wrote,

It is true that the appellants have no special interests in the subject matter of the decision in the sense of legal or equitable rights or proprietary or pecuniary interests; but they are persons aggrieved because to repel blasphemy is a necessary incident of their vocation. To deny them standing would deny an important class in the community an effective means and procedure for challenging decisions of the kind involved in this case.

When applied to the facts in this matter, Ogle enlivened an important test, which might be called the ‘necessary incident of the profession’ test. Applied to the medical profession, that question became ‘whether the matters agitated by Dr Fidge are a necessary incident of being a medical practitioner’ [131]. Rofe J’s consideration of this question is instructive for cases involving medical practitioners who seek remedies in circumstances where they allege a general legal breach and take action to protect patients generally. Rofe J found, in this case, that challenging decisions or actions of regulators did not form an incident of the medical profession in the same way as challenging a censorship decision did form an incident of the clergy in Ogle.

As Rofe J writes,

it is not a necessary incident of the medical profession that doctors oppose any or every breach of legislation that may (in their view) pose a risk to the health and safety of people. The sources of obligation referred to by Dr Fidge — the AHPRA Code of Conduct, Hippocratic Oath and AMA Code of Ethics — do not require doctors to challenge alleged breaches of legislation in order to “do no harm” or properly inform their patients. It is certainly not a necessary incident of being a doctor to challenge alleged breaches of the GTA. Nor do doctors have a professional obligation to “speak for all members of the Australian community” about potential health risks.

In my capacity as a legal scholar, I agree with Rofe J that neither the various ethical codes (Codes) regulating health practitioners in Australia, nor the Hippocratic Oath, go so far as to require, compel, or even permit health practitioners to challenge alleged offences under law to protect their patients. While the Codes do not explicitly prevent practitioners from challenging laws, they do not explicitly support such actions either. And consideration of the disciplinary actions taken by regulators responsible for enforcing the Codes soon indicates that, with respect to vaccines, health practitioners have been expected to have been bound to comply with the law in respect of protecting patients: see, eg, Health Care Complaints Commission v Parmenter [2023] NSWCATOD 136. In general, it might be said that compliance with the law to protect patients is an incident of the profession whereas challenging laws to allegedly protect patients is not.

In divining the legal character of Dr Fidge’s action, Rofe J concluded that it derived from an ethical position — one of ‘strong personal beliefs’ [135] — rather than a professional or legal duty:

Dr Fidge’s concern ultimately arises from a sense of moral obligation, not professional obligation or legal duty imposed on him as a medical practitioner. Although the ministers in Ogle may have felt that they had a moral obligation to challenge the decision of the Censorship Board, the majority in Ogle did not hold that a moral obligation is sufficient to establish standing.

Given that the applicant failed to demonstrate that he was an aggrieved person, the question of whether the mRNA vaccines were, or contained, GMOs did not arise. However, as I plan to explore in much more detail in future writing on this case, the decision does indicate that the purpose of the GT Act is to regulate GMOs on a ‘gap-filling’ basis, the result of which is that the GT Act does not regulate every therapeutic good that may or does contain a GMO, or something akin to a GMO. Rofe J ascertained this conclusion by means of a detailed purposive analysis of the GT Act as a whole, which included an independent construction of the text and (historical and legislative) context of the GT Act, as well as its interaction with other statutes, such as the Therapeutic Goods Act 1989 (Cth).

Indeed, the idea that the GT Act would be a ‘super regulator’ whose purpose was to become a ‘one stop shop’ for the regulation of GMOs and GM products in Australia, ‘regardless of whether the GMOs or GM products were also therapeutic goods, foods, agricultural and veterinary chemicals or industrial chemicals,’ was explicitly rejected by the Commonwealth Parliament when the GT Act was enacted (see [66]).

Instead, the GT Act was enacted explicitly as a gap filler directed at filling gaps related to ‘dealings with live viable organisms,’ such as ‘laboratory research involving the genetic modification of animals, plants, bacteria and viruses and the growing of crops, animals and fish.’ Where the Therapeutic Goods Administration (TGA) had approved a therapeutic product that contained certain gene-related products, the GT Act was not intended to, and did not, per force of its objects or legislative purpose, also apply as a second layer of regulation. Indeed, as I have argued in respect of this proceedings and more generally, the risk-based regulation (RBR) approach adopted to product regulation in Australia and abroad has always stood against duplication of this kind.

Thus, although Rofe J’s decision did not answer the question as to whether Dr Fidge, if found to have been aggrieved, would have been correct in identifying the respondents’ failure to obtain licences as breaches of the GT Act under ss 32 and 33, it is certainly apparent from her Honour’s analysis of the GT Act that such alleged breaches are unlikely to be made out by any future litigant.