Comment and Opinion

Australian Biologics

Australian Biologics (24/7/2004)
For some time now the Australian Competition and Consumer Commission has been pursuing a quack called Jennie Burke and her business, Australian Biologics, over some false and misleading advertising that the company had been doing. Australian Biologics was (and still is) offering several worthless and useless "diagnostic" procedures which could be used to make people think that they had diseases or ailments which could be treated by quacks. The action was scheduled for court this week but settlement was reached by consent last week. Here is what the ACCC had to say in its media release:

Australian Biologics doesn't bother to mention the consent decree on its web site, but just baldly says "Please follow this link to view the press release". When (or if) someone clicks on the link they are taken to a scan of a newspaper advertisement where what the ACCC says has been expressed in a subtly different way:

There may be insufficient scientific and medical evidence to support all of these claims about our services. These tests are not diagnostic tests and the results of such tests are not indicative of a specific medical condition.

Note the "may be insufficient". No maybe about it, there is NO evidence to support the claims. So, what will happen next? Will Australian Biologics stop testing people and then saying that their tests show that some alternative remedy is needed? Well, of course not! Live Blood Analysis and the other scams practised at Australian Biologics won't be used to diagnose "a specific medical condition", they will be used to diagnose general medical conditions like "weakened immune system", or "presence of toxins", or "chemical sensitivity", and it will be business as usual for Jennie Burke and the quacks she feeds victims to. Business may even be better, because people will have to keep coming back to see if their vague ailments are getting any better. And after a short time, when new names have been found for Thermography, Live Blood Analysis and Clot Retraction Testing, I would expect Australian Biologics (perhaps with a new company name and structure) to be doing what it has always done, and they will point to the advertisement and innocently state that they never said they were not going to be offering Differential Thermal Imaging, Erythrocytic Tomography and Hypothrombology.

Australian Biologics (14/8/2004)
I made mention recently of an Australian quackery testing laboratory which had fallen foul of the authorities. The owner of the place took offence at what I said and called in the lawyers, and because of Australia's draconian defamation laws I had to take the threat seriously. The letter from the lawyer, with my responses interspersed, appears below. And, yes, I did have my reply checked by a barrister before I hit the "Send" button.

From: "Richard Farago"
Subject: Australian Biologics & Burke
Date: Wed, 11 Aug 2004 13:03:42 +1000

Dear Peter Bowditch

We are solicitors acting for Australian Biologics Testing Services Pty Ltd and Jennie Burke.

We refer to the website article headed "The lying quack consents, and having signed, lies on (24/7/2004)" on your website ratbags.com/rsoles/. On any view the article, including the heading:

I have changed the headline on the article. I did this immediately upon receiving your email as an indication of my good faith in this matter.

1. significantly misrepresents the settlement reached by our clients with ACCC,and:
2. and is defamatory of both Australian Biologics and Ms Burke in numerous respects.

I quoted verbatim from the media release issued by the ACCC, which can be seen at https://www.accc.gov.au/content/index.phtml/itemId/524259/fromItemId/2332 and I provided a link to that document on the ACCC web site. I have no access to the settlement documents, so I had to rely on the content of the media release; if the wording of that media release somehow misrepresents the settlement then that is a matter you should take up with the ACCC. If you could provide me with a copy of the settlement documents I would be able to see for myself where I was mistaken, and I would then, of course, immediately change my article to remove any misrepresentation. It would help if you could highlight those parts of the settlement which you believe I have misrepresented.

Please elaborate on the alleged defamatory statements. It is difficult to respond adequately without knowing what to respond to.

We are instructed to advise that unless the article is corrected (to be factually correct) or withdrawn forthwith we hold instructions to take any necessary action to protect our clients' reputation. This would include applying to the Supreme Court for an injunction and/or commencing proceedings for defamation against you without further notice.

Please advise me of the places where the article is factually incorrect. If you are referring to my opinions about the worth of the medical procedures offered by Australian Biologics, then I must say that I have seen no evidence of any scientific validity of these procedures published in peer-reviewed literature.

A search of the Medline database (available at https://www.ncbi.nlm.nih.gov/entrez/query.fcgi) for the phrase "live blood analysis" results in a message saying "Quoted phrase not found". This could be because the research has been published too recently to have been indexed on the date when I conducted the search (August 12, 2004), although this seems unlikely as the ACCC action against Australian Biologics and Ms Burke commenced some time ago and Medline is generally quite up to date for published papers. Another possibility is that the research has been published in journals which are not indexed by Medline.

A search for Bolen's Clot Retraction Test produced two citations, one from 1968 written in Italian and one from 1973 written in Russian. I do not know whether either of the respective journal issues would be available in Australia, and I wonder if there is some more recent research into this technique. The comments above about inclusion in the Medline index apply here as well.

Medline shows 5246 citations for "thermography" and it is obvious that I cannot read all of these to see whether they are applicable to the activities of Australian Biologics. In any case, according to the ACCC media release, Ms Burke has renounced the use of thermography as it was being used by Australian Biologics.

I am prepared to change my opinion about the worth of these procedures if I am presented with evidence. Please provide me with journal citations, if available. I have access to the excellent medical library at Westmead Hospital, so I should have no trouble acquiring the articles and published papers.

On a philosophical note, it would appear that Ms Burke and Australian Biologics have a serious dilemma. Medical procedures fall into two broad categories – diagnosis and treatment. As Ms Burke has apparently conceded that the procedures mentioned above have no diagnostic value (although the actual terms of the settlement, which I have not seen, may not really say this) and she is not, as far as I know, claiming that they cure or treat anything, one must ask what benefit accrues to any client of Australian Biologics who pays for these services. I am sure that you can advise Ms Burke of the legal term for offering a service with no benefit in exchange for money.

Should our client be forced to commence legal action we will also be seeking orders that you pay our clients' legal costs.

As is my normal policy, your email and my response will be published on the Millenium Project web site at the next regular update.

Yours faithfully
Richard Farago
Langes

Australian Biologics (continued) (21/8/2004)
The legal attack made last week on my freedom of speech has continued. Briefly, the story is that someone said that they can do something, I said that it was unlikely, they said that they had strong evidence, I said "Show it to me", and they threatened to sue me. How clearly can I say this? "Show me the evidence and I will go away". Here is the latest correspondence between the lawyers and me.

From: "Richard Farago"
Subject: Australian Biologics & Burke
Date: Tue, 17 Aug 2004 13:54:09 +1000

Dear Peter Bowditch
We refer to your email response of 12 August. It is noted that apart from changing the heading to the article you have not altered your website article with the result in our clients' view that the defamation is continuing.

Please provide us with an address for service of court documents on you.

In my subsequent email of August 13, I offered to make any changes to errors of fact in the article. As you may not have received this later message, I have included a copy below.

I believe that this matter could be settled amicably if I could see the settlement documents and the scientific evidence for the efficacy and validity of the procedures carried out by Australian Biologics. I intend to apply for access to this data by making a Freedom of Information request to the ACCC, but this should not really be necessary. If the settlement documents exonerate Australian Biologics then I can see no reason why they should not be proudly made public.

In any case, it says on the page headed "Enforcement Priorities" on the ACCC web site:

Formal administrative resolutions
To resolve a possible contravention of the Act, the ACCC may decide to accept formal administrative settlements or undertakings from businesses, including in addition to or in lieu of taking legal proceedings.

It usually does so pursuant to its power under the Act to accept court-enforceable undertakings.

The ACCC does not accept offers of such undertakings unless the undertakings are to be made public and do not contain denial of contravention of the Act. (emphasis mine)

The ACCC may enforce such undertakings in court if they are not honoured.

See https://www.accc.gov.au/content/index.phtml/itemId/344494/fromItemId/37 44#h2 _141

(Note: In early 2013 the ACCC remodelled its entire web site. A new enforcement policy was issued in 2012 (you can read it here). The words quoted above come from the policy in effect in August, 2004.
PB June 1, 2013)

A media release issued by the Natural Health Care Alliance over the signatures of Dr Mark Donohoe and Ms Burke contains at least two implications of "denial of contravention of the Act". The ACCC were apparently unaware of the NHCA media release, but they have been advised of it and of its implied allegations of deliberate deception by the ACCC. You can see the NHCA release at http://www.australianbiologics.com.au/documents/Aust%20Bio%20-%20nhca%20press%20release.pdf

In that release it also states that "[t]he scientific evidence filed by Australian Biologics in support of its tests was extensive, impressive and compelling". Surely research of this nature should be made available to the medical community, and I look forward to receiving the relevant citations from peer-reviewed journals, or perhaps even copies of the papers themselves.

As I said above, this matter could be settled by making the terms of the settlement available. If they are so supportive of Australian Biologics' position, I can see no reason why the settlement documents could not be made available on the Australian Biologics web site, along with the supporting research.

I reiterate my willingness to correct any defamatory statements or statements of fact in my article, but I cannot correct anything if I do not know what is wrong. If Ms Burke cannot enumerate her specific complaints, then I am led to assume that her threats of legal action are simply a tactic to stifle my freedom to express an opinion. I should state here that Ms Burke is free to say, write or publish anything she likes about me and I guarantee that I will never take legal action against her for defamation.

I realise that Australians have no constitutional guarantee of freedom of speech, which is why people are free to exploit the legal system to silence and impoverish critics. It is ironic, then, that Australia was not only a significant contributor to the drafting of the Universal Declaration of Human Rights (as one of the eight countries represented on the drafting committee), but an Australian was the President of the UN General Assembly at the time that it was adopted. According to the Department of Foreign Affairs and Trade we still support the Declaration, and I do not see where Article 19 is excluded from that support.

As is my normal policy, your email and my response will be published on the Millenium Project web site at the next regular update.

It now looks like the following is indicated:

You can't say that they are not persistent (28/8/2004)
Another week, another lawyer. It looks like Australian Biologics aren't using the expensive services of the Sydney law fraternity any more and have called in someone from out of town. It seems strange that a person and company who are both in Sydney should use a lawyer from another state to threaten someone in Sydney, especially as defamation laws are not exactly the same in both states. I am still waiting for someone to tell me what mistakes, misrepresentations and untruths I have committed. Surely someone can list them. If they exist, of course.

27 August 2004

Dear Sir,

re: AUSTRALIAN BIOLOGICS TESTING SERVICES PTY LTD

I confirm that I am the solicitor acting for the company referred to above and have received instructions concerning a web site article placed by you on your ratbags.com.au site.

The contents of the article are untrue, not based on any facts and are defamatory to my client.

The purpose of this letter is to demand that you withdraw the article within 24 hours of receipt of this fax failing which I have instructions to institute appropriate proceedings.

In the event that my client is forced to take any action against you an application will be made for an order for payment of costs by you.

Yours faithfully
W H BENNETT

Dear Mr Bennett,

RE: Australian Biologics Testing Services Pty Ltd

I received your fax today requesting that I remove certain material from my web site at www.ratbags.com (no ".au"). I have had previous correspondence with Mr Richard Farago of the law firm Langes about this matter, and I have twice asked to be given specific details of any errors of fact in what I wrote. I have received no answer, despite my unqualified offer to correct any error as soon as evidence of the error is provided to me. I make the same offer to you — tell me in which way "the contents of the article are untrue, not based on fact and are defamatory" and I will do my best to rectify matters.

I will also repeat to you my promise not to take action for defamation against your client, whatever is said or published about me. As evidence of my good faith, I refer you to an article by Eve Hillary, titled "The Jennie Burke Story", which was published on more than one web site in late 2003. That article accused me of being malicious and underhand, and also suggested that I was an active and aware participant in one or more conspiracies. As you can see, my commitment to the principles of free speech extends to allowing people to make ludicrous and unsupportable statements accusing me of criminal activities.

I do not know why Australian Biologics Testing Services Pty Ltd no longer appears to be using the legal services of Mr Farago and Langes, and has chosen to use a lawyer in Queensland rather than in New South Wales where the parties are located. I assume it is not to bypass Section 8A of the NSW Defamation Act 1974 (as amended by the Defamation Amendment Act 2002) (1), which limits the ability of corporations to sue for defamation in New South Wales.

As is my normal policy, your fax and my response will be published on the Millenium Project web site at the next regular update.

Yours faithfully
Peter Bowditch

Note 1: The NSW Defamation Act 1974 was repealed by the NSW Defamation Act 2005. The prohibition on defamation suits by corporations still applies.

And so:

Australian Biologics (16/4/2005)
A friend informed me that there was some sort of alternative medicine conference in Sydney during the last week and one of the speakers was a quack named Jennie Burke, who used to sell (and probably still does sell) scientifically unproven, worthless diagnostic tests. The entire content of her talk was apparently about how she had triumphed over the Australian Competition and Consumers Commission and the Australian Skeptics. Her victory over the ACCC can be seen in this media release, where it says "Australian Biologics and Ms Burke have agreed that these tests are not diagnostic tests and the results of such tests are not indicative of a specific medical condition". In the newspaper advertisements which Australian Biologics were required to run it said "There may be insufficient scientific and medical evidence to support all of these claims about our services. These tests are not diagnostic tests and the results of such tests are not indicative of a specific medical condition". Some victory.

I assume that by Australian Skeptics Ms Burke meant Professor John Dwyer (who first alerted the ACCC to her quackery) and me. Professor Dwyer is not now and has never been a member of Australian Skeptics (although he is a good friend of the organisation) but facts have never been of much use to the sort of people who promote useless medical quackery. Ms Burke's victory over me consisted of employing two law firms to threaten me, both of whom retreated when I quite reasonably asked them to produce the apocryphal published scientific papers which supposedly validated Ms Burke's ludicrous claims.

Australian Biologics (15/10/2005)
The story so far: In July 2004, a "pathology" testing laboratory named Australian Biologics avoided examination of its activities by the Federal Court of Australia by agreeing to stop doing worthless, unscientific "medical" tests. Part of the settlement with the Australian Competition and Consumers Commission was that the settlement terms should be made public and that no denial of any contravention of the Trade Practices Act should be made. Australian Biologics threatened legal action against me for discussing the settlement (but refused to supply me with a copy of the document) and issued a media release saying that there had been no breach of the law. The owner of Australian Biologics, a well-known promoter of quackery called Jennie Burke, later appeared at a quackery conference to announce her great victory over me, the ACCC and anyone else who dared to suggest that her non-scientific methods of extracting money from wallets were suspect. You can see the saga so far here. Now read on.

The following advertisement appeared on the employment site seek.com.au on October 11, 2005.

Like most civilised countries, Australia has certain standards and rules about what you have to do to qualify as a legitimate medical testing laboratory. The body responsible for overseeing this is the National Association of Testing Authorities. I know people who have been involved in the NATA certification process from both sides, as laboratory management and staff and as inspectors, and the process inspires confidence. Here is what NATA says on its web site about pathology laboratory accreditation:

About NATA/RCPA The National Association of Testing Authorities (NATA) was established in 1947 by the Commonwealth of Australia to provide accreditation of calibration and testing laboratories. In 1979, the National Pathology Accreditation Advisory Council (NPAAC) was formed, its aim being to formulate Standards for accreditation of pathology laboratories. The accreditation program for medical laboratories was established by NATA and the Royal College of Pathologists of Australasia (RCPA) in 1982, initially as a voluntary program. The program, at that stage, was designed to ensure a minimum acceptable standard of operation which over time would be raised. In 1986, accreditation of pathology laboratories became mandatory for the payment of Medicare benefits and NATA was appointed by the Commonwealth as the national accreditation agency responsible for conducting assessments. A major review of the accreditation process in pathology was undertaken in 2002. This resulted in the confirmation of the role of NATA/RCPA in providing accreditation and supported the concept of peer review as part of that process. From 1 January 2003, a new Deed between NATA and the Health Insurance Commission (HIC) has ensured a more stringent link between accreditation with NATA and the HIC. There are currently over 500 accredited pathology facilities both nationally and internationally, in countries such as Hong Kong and Malaysia. Laboratories continue to be assessed to the Standards set by NPAAC as well as ISO/IEC 17025 – 1999, General Requirements for the Competence of Testing and Calibration Laboratories and further specific requirements relating to pathology laboratories.

"There are currently over 500 accredited pathology facilities …". And not one of them is called "Australian Biologics". I wonder why not.

Public safety increased (7/7/2012)
Doing my regular check for broken and redirected links, I found that the web site for Australian Biologics consists of nothing but this:

I'm unfamiliar with the word "temorarily" but that doesn't really matter. While ever this site is unavailable the risk of sick people spending money on useless, unproven, unscientific "medical "tests is reduced. People will just have to go to real doctors and have tests done by real pathologists. Real tests, with real scientific validity, backed by real scientific research.

Oh, and if the owner of Australian Biologics wants to waste money on lawyers to threaten me again she will get the same answer as last time – supply useful citations to research published in the scientific literature that demonstrates some value to your ridiculous tests and I will apologise immediately. I'm still waiting from last time.

I am chastised (14/7/2012)
I have received an email. It is making me reconsider what I do and say.

From: "CLIVE POWELL"
Subject: Pathology
Date: Fri, 13 Jul 2012 15:28:45 +1000

How appropriate you call yourself the Proctologist; you're a real arsehole. How strange you should attack Australian Biologics and defend 'Scientific" pathology. I know many GPs who do not trust conventional lab results anymore as they are both too insensitive and inaccurate. If you only knew what a corrupt industry big medico/pharma is you would fall off your perch. Oh well you can always tell an arsehole but you can't tell him much!

Hello Clive,

Perhaps you could reveal the names of these doctors so I can make sure that nobody I care about ever risks their life by going near them.

Thank you for your comments. We appreciate considered criticism here and always treat it with the respect it deserves.

Cleaning up the pathology scamsters (26/10/2013)
Dr Buckley mentioned Friends of Science in Medicine. I signed on as a supporter and friend of the organisation on the day that it was born, although I leave the hard work of running it to others. They have just released a set of recommendations about the sort of pathology tests that should be seen as part of accepted medicine. A few years back I had a run-in with a "pathology" laboratory named Australian Biologics that threatened legal action against me for being less than complimentary about their activities. Sadly, almost ten years later it is still necessary to mention the same old scams like "live blood analysis" and "clot retraction" that have been extracting money out of the pockets of the unwary almost since the invention of the travelling medicine show.

I totally endorse the recommendations, and I would like to see them implemented immediately. Or better still, retrospectively.

Time stands still for some people (29/2/2020)
I've often commented that time stands still for the supporters of alternative (to) medicine, where once something is said or done it remains true for all time. What passes for research in the area can never be overturned by later research, and in fact the way that real science improves on its findings and throws away things later found to be wrong or incomplete is offered as proof that science knows nothing. (Of course, to sentient beings the fact that science is always a work in progress and will stop when everything is known with certainty is well recognised.)

In 2004 I had a run in with a quack offering useless diagnostic procedures. She lawyered up but the lawyers ran away when I asked for evidence of her claims. When I did one of my occasional ego surfs through the search engines looking for my name I found a blog post headed "Peter Bowditch's Witch Hunt" which referred to this matter.

In the true spirit of quackers getting things wrong it refers to Professor John Dwyer as "a member of the Sceptics Assoc". I don't know who or what this "Sceptics Assoc" is, but if the writer was referring to Australian Skeptics Inc then I have to say that Professor Dwyer is not and has never been a member, although he is a good friend of the organisation. (I had the honour of presenting him with his Skeptic Of The Year award at the 2000 ASI national convention.)

The thing about time standing still, however, refers to the sentence "Jennie has had to sell her house to fight this cause that will be held in the Federal Court". The blog post was written in March 2007, but Ms Burke had aborted the Federal Court action in 2004 by giving an undertaking to tell the truth a few days before the hearing. (She didn't of course, but she is in the business of deceiving people about diagnostic tests.) So we have someone writing in 2007 about something that didn't happen in 2004 because it's about to happen,

You can read the nonsense here.