McCann v Medical Board of Australia [2025] QCAT 488

(a) stated that it received a notification about Dr McCann which raised concerns about statements she made about Covid-19 vaccines during the 'Covid Vaccines & Effects Tour 2023' hosted by the United Australia Party;

(b) stated Dr McCann's initial submission was that the material in her speech was accurate information and that her speech was in the nature of a public interest disclosure;

(c) noted Dr McCann made a verbal submission in response to a proposal to caution her and impose educative conditions on her;

(d) referred to clause 2.2 of the Good medical practice: a code of conduct for doctors in Australia ('Code of Conduct') and Ahpra and the National Boards' Covid-19 vaccination position statement (9 March 2021); and

(e) stated that, on consideration of the information available, it reasonably believes that Dr McCann's professional conduct is unsatisfactory because the statements she had made promote distrust in the Therapeutic Goods Administration ('TGA') and actively undermine the national immunisation campaign in relation to Covid-19 vaccines. Additionally, it considers that Dr McCann's analysis of data in relation to the Covid-19 vaccines lacks objectivity.

• [4] The Board cautioned Dr McCann in relation to statements she has made which promote distrust in the TGA and undermine the national immunisation campaign in relation to Covid-19 vaccines.[3] In its reasons it did not specify which parts of Dr McCann's presentation constitute the statements. The Board imposed conditions of education on Dr McCann's registration for data analysis in relation to Covid-19 vaccines. It said 'this is in order to increase Dr McCann's objectivity so she can engage in balanced debates moving forward'.
• [5] Dr McCann's submissions refer to her 'making ... the identical set of statements ...publicly on 5 occasions in the period February - March 2023'.[4] The Board's material filed under s 21(2)(b) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) ('QCAT Act') contains a video of Dr McCann's presentation in Sydney; the flyer for the conferences records the lectures as occurring also at the Good Coast, the Sunshine Coast and Melbourne. Dr McCann opens her presentation with statements such as:

(a) challenge the Covid narrative;

(b) this forum is for all of us to share the truth;

(c) quoting Arthur Schopenhauer, that 'all truth passes through three stages, first it is ridiculed. Second it is violently opposed. Third, it is accepted as being self-evident';

(d) as I consider this truth self evident, I will speak as such; and

(e) I will be discussing severe adverse effects and deaths following vaccines and I apologise for any distress that may cause.

• [6] Dr McCann filed her application for review on 19 September 2023 and amended that application on 19 October 2023 ('review application'), in accordance with directions made by consent on 12 October 2023. The review relates to the imposition of the education condition.[5]

• [7] The Board's amended application filed on 31 January 2024 ('interlocutory application') seeks a ruling on the admissibility of much of Dr McCann's affidavit sworn on 6 December 2023[6] and evidence of eight witnesses filed by Dr McCann in the underlying review proceeding. That evidence is:

(a) in some cases, expressed on its face to be expert evidence:

(i) report of expert witness Professor Robert Clancy of some 15 pages dated 25 October 2023 ('Clancy statement');

(ii) expert witness report of Associate Professor Peter Parry dated 30 November 2023 of some 75 pages including appendices ('Parry statement');

(iii) expert opinion of Dr Julian Fidge of some 10 pages dated 8 November 2023 ('Fidge statement');

(b) statement of Rado Faletic dated 12 October 2023;

(c) statement of Dr Andrew McIntyre dated 1 December 2023;

(d) statement of Dr Hen Huong dated 1 December 2023;

(e) statement of Dr Jeyanthi Kunadhasan dated 2 December 2023; and

(f) statement of Dr John Scott dated 4 December 2023.

• [8] The Board's application is made on two bases:

(a) that the evidence filed is not relevant to questions which the Tribunal has to determine; and

(b) in respect of the statements of Associate Professor Parry and Dr Fidge, that evidence is sought to be led from each of them which is outside their expertise so their opinions are not admissible as an expert witness. In respect of Professor Clancy, whilst accepting he has relevant expertise, the Board contends his statement is not relevant to issues the Tribunal has to determine in the proceeding and, as such, is not admissible.

• [9] Dr McCann opposes the application on the bases:

(a) the so called 'expert evidence', even though expressed to be expert evidence, is not tendered for the purpose of expert purposes but, rather because it provides:[7]

(i) publicly available scientific matters extant at the time of Dr McCann's impugned conduct, providing a basis for the relevant question of the circumstances of Dr McCann's conduct; and

(ii) evidence of the expectations of Dr McCann's peers and the community, which is directly relevant to whether Dr McCann's conduct may be considered satisfactory under the Code of Conduct;

(b) all the evidence filed is directly relevant and critical to the Tribunal's cogent consideration of the case.[8]

• [10] The Board has filed written submissions under the hand of Counsel and Dr McCann has filed extensive written submissions (of some 50 pages) under the hand of Counsel, and submissions in reply (of some 21 pages) to the Board's reply submissions.

What legal principles apply in the underlying proceeding and why do they matter on this application?

• [11] The Tribunal has, as the purpose of the review, 'to produce the correct and preferable decision'.[9] It has all the functions of the decision maker for the reviewable decision being reviewed.[10]
• [12] The Tribunal must hear and decide a review of a reviewable decision by way of a fresh hearing on the merits.[11] As I have indicated in earlier review matters, I hold the view that each party has a practical onus to advance their respective positions before the Tribunal.[12] Section 21 of the QCAT Act obliges the Board to use its 'best endeavours to help the Tribunal so that it can make its decision on the review.'
• [13] The Tribunal can consider material beyond that considered by the Board and it can consider circumstances which have changed or developed since the Board made its decision.[13]
• [14] On a review application, the Tribunal can confirm or amend the decision, set the decision aside and substitute its own decision or set the decision aside and return it to the decision maker for reconsideration with directions considered appropriate.[14]
• [15] The Tribunal must act fairly and according to the substantial merits of the case,[15] must observe the rules of natural justice,[16] is not bound by the rules of evidence and may inform itself in any way it considers appropriate.[17] It is to ensure, so far as practicable that all the relevant material is disclosed to it to enable it to decide the proceeding with all the relevant facts.[18]
• [16] The Tribunal must allow a party a reasonable opportunity to call or give evidence and examine, cross-examine and re-examine witnesses and make submissions.[19]
• [17] All of the provisions conferring procedural powers on the Tribunal are to be considered in the light of the Tribunal's objects, which require it to deal with matters in a way that is accessible, fair, just, economical, informal and quick;[20] and in so doing, it must, amongst other things, ensure proceedings are conducted in an informal way that minimises costs to the parties and is as quick as is consistent with achieving justice.[21]
• [18] Whilst the QCAT Act provides the Tribunal is not bound by the rules of evidence the Tribunal should still pay close attention to those rules as '...they represent the attempt made, through many generations, to evolve a method of inquiry best calculated to prevent error and elicit truth...'.[22]
• [19] I have set out the legal principles which apply in the underlying proceeding, because they inform the nature of the proceeding in which the interlocutory application falls to be decided, where there are no pleadings to assist in determining whether evidence is or may be relevant.
• [20] Whilst Dr McCann contends the Tribunal will have to decide finally on the application a lengthy list of issues[23] the question for the Tribunal is prescribed by the statute. It is whether the practitioner's professional conduct is or may be unsatisfactory. The matters which Dr McCann articulates may be arguments she wishes to raise in support of her review application, but they are not all matters which the Tribunal is bound to decide.
• [21] This Tribunal has previously observed that it is not the role of the Tribunal to be using a review proceeding as a forum for debate about the scientific efficacy, and reliability of data relevant to the National Immunisation Program as a response to the Covid-19 pandemic.[24] It adopts and repeats those observations here.
• [22] In decided cases involving health practitioners (acknowledging they are typically disciplinary referrals and each turns on its own facts) the following observations from tribunals around the country seem pertinent:

(a) For those who have taken issue with aspects of the approach to Covid-19 vaccination:[25]

(i) the practise of medicine is subject to ongoing regulation and essentially thumbing a nose at the Board and Ahpra as the machinery of professional regulation is very serious in its own right; and

(ii) just because a doctor has reached his or her own opinion in relation to Covid-19 vaccinations, does not give him or her the right to undermine the processes put in place with the aim of protecting the community;

(b) For those who have had personal views about vaccination programmes generally:[26]

(i) a misguided conflation by a medical practitioner of his convictions as an individual with his professional duty as a medical practitioner is inconsistent with clause 1.4 of the Code of Conduct;

(ii) the doctor may have devoted much time and energy to research and have developed strong views about adverse side effects of vaccines for children and the position of those who are fearful of having their children vaccinated. He has every right to participate in community debate about these issues. But he has a duty not to unilaterally purport to override the processes put in place by statute with the aim of protecting the community, on the basis of his own contrary opinion;

(c) For those who have made posts on social media concerning Covid-19 which could be seen as containing an anti-vaccination message, without any qualification or context to make the purpose of the post clear, that their conduct is inconsistent with public and professional expectations of medical practitioners on an important health issue.[27]

• [23] How and where a practitioner expresses him or herself may be highly relevant to the question of satisfactory professional conduct.
• [24] In this case, there is a video of Dr McCann giving one of the relevant addresses. Dr McCann delivered the same address at venues at the Gold Coast and the Sunshine Coast in Queensland, Melbourne and Sydney.[28] She was introduced as a registered general practitioner and practice owner and she spoke in terms of her 'clinic' and 'patients'. The flyer, which contains her photograph, is headed 'Clive Palmer and the United Australia party present world leaders in their field'[29] (emphasis added). Dr McCann has also included what she says is a transcript of her address.[30]
• [25] Thus, the Tribunal will have before it cogent evidence of exactly what Dr McCann said, how Dr McCann said what she said and the immediate context in which they were said.

The first question - is the evidence which the Board seeks to exclude relevant to what the Tribunal has to decide?

• [26] The Board seeks exclusion of annexures MM5, MM11, MM26, MM28-29, MM31-42, MM44-70, MM72, MM75-78, MM81-83, MM86-91, MM93-96 and corresponding paragraphs of Dr McCann's affidavit.[31] In summary, it contends this material distracts from the question on review, by seeking to debate the scientific efficacy, safety or reliability of the Covid-19 vaccines and the National Immunisation Campaign in response to the Covid-19 pandemic.[32]
• [27] It also now contends that when the Tribunal is making its decision, the Tribunal must consider whether Dr McCann's conduct in discussing these matters in the public forum of the tour was inconsistent with the reasonable expectations of health practitioners, regardless of whether or not Dr McCann considers the information she was imparting was evidence based.[33] The Board submits that Dr McCann is not qualified to assess or share publicly information and materials critical of the safety or efficacy of the Covid-19 vaccine or the vaccination regime mandated by the health authorities, either by her own evaluation or by researching and critiquing the commentary or analysis of others.[34] Neither of these matters were contained in the Board's reasons for its decision.
• [28] In reply submissions the Board also contends that:

(a) the material and opinions Dr McCann intends to rely on which she asserts contains 'unembellished and uncontroversial statements of fact' is problematic, as the provenance of opinions and documents has not been established and the Board does not accept that the contents of the documents or the veracity of the opinions are as Dr McCann describes.[35] It points, by way of example, to Mr Faletič's statement;

(b) its position is that Dr McCann lacks expertise to make broad statements to the general public regarding alleged adverse effects of the Covid-19 vaccine. It does not contend that Dr McCann does not have expertise to discuss with individual patients the benefits and detriments of the Covid-19 vaccine having regard to the patient's subjective features;[36] and

(c) the right to call and give evidence is not unfettered and the Tribunal needs to consider evidence which is relevant and in the appropriate form.[37]

• [29] Dr McCann submits her evidence is directly relevant and critical to the Tribunal's cogent determination of the matter[38] on the bases that the evidence is:

(a) directed to the circumstances of Dr McCann's conduct.[39] It establishes the factual matrix associated with the statements Dr McCann made;[40]

(b) relevant to the Tribunal forming a reasonable belief about Dr McCann's conduct, where the principle is that the health and safety of the public is paramount.[41] There must be sufficient facts to found a reasonable belief and a rational basis for the belief.[42] The Board proceeds on bare assertion, but that there must be an evident, rational and reasonable factual basis for the asserted belief;[43] and

(c) apposite to the maintenance of public standards, maintenance of public confidence in the profession and the protection of the public,[44] and provides an evident and intelligible justification when considering whether a reasonable belief can be formed that Dr McCann's professional conduct was, or may have been, unsatisfactory;[45]

• [30] In so far as Dr McCann's submissions suggest the Board seeks exclusion of some of the material, they appear to misconstrue the Board's application.[46]
• [31] Dr McCann submits:

(a) Her evidence is not adduced for the purpose of engaging in scientific debate about the efficacy or otherwise of the Covid-19 vaccines or the National Immunisation Campaign.[47] Rather, the statements she made were '... plain statements of publicly available facts made in the interests of the health and safety of the public and motivated by Dr McCann's legal, professional and ethical obligations as a doctor...';[48]

(b) The Board mischaracterises her position about her reliance on data as 'containing unembellished and uncontroversial statements of fact' because her statements about known published data were statements about what that data contained, which was published, publicly known and accurate;[49]

(c) Her statements merely repeat known data known reported and publicly available occurrence of adverse events and the adverse events she observed with her own eyes in medical practice.[50]

• [32] A number of the documents are expressly referred to by Dr McCann in the presentation in which Dr McCann made the statements, with website links to them, and screenshots of parts of them for forming part of the presentation which can be seen in the video.[51] Other aspects of her presentation contain material described as 'graphed from' material received through freedom of information processes.[52]
• [33] Dr McCann's submissions expressly state that she is not seeking to agitate the determination finally of the safety and efficacy of the vaccines, but the truth of the content and provenance of data Dr McCann cited in the statements remains relevant to the basis for the statements and to the broader question of whether or not her conduct could reasonably be considered unsatisfactory.[53]
• [34] In her affidavit, Dr McCann sets out, amongst other paragraphs, a series of 37 subparagraphs, each of which contains what she identifies as a statement which has caused the Board to act, together with the material she points to as providing the factual support for that statement. In so far as Dr McCann had this information at the time of making the statements, and it informed her state of mind in making the statements, the fact of her possession of this material is relevant and the material is admissible on that basis.
• [35] Some of that material is her direct clinical observation.[54]
• [36] Some of that material, which the Board challenges as irrelevant, is material:

(a) Dr McCann obtained through freedom of information processes from government sources,[55] some of which is already in the Board's s 21(2)(b) bundle;

(b) Dr McCann has generated, evidently through running reports from publicly available material.[56] It is unclear what criteria Dr McCann has used to generate this report;[57]

(c) in the form of publicly accessible reports, including of a Ministerial review in Western Australia in 2010[58] and Hansard;[59]

(d) in the form of public statements of commonwealth authorities[60] or other public authorities;[61]

(e) comprising a Commonwealth government work instruction;[62]

(f) comprising articles published in various places all, on the face of them, prior to Dr McCann giving the presentations containing the statements;[63]

(g) responding to the freedom of information requests;[64]

(h) comprising her communications with the TGA freedom of information team;[65]

(i) comprising documents of a public nature she has received from third parties;[66]

(j) Dr McCann has written, setting out her opinions and the basis for them;[67] and

(k) already contained in the Board's section 21(2)(b) bundle.[68]

• [37] Some material is not relevant to the issues the Tribunal has to decide:

(a) Dr McCann's affidavit annexes as MM11 an affidavit of herself in proceedings in the federal jurisdiction setting out information relating to the steps she took to obtain documents on freedom of information. It is not relevant to the issues in this proceeding. MM11 is excluded. Paragraph [28](g) of her affidavit, so far as it is led to establish that Dr McCann did make attempts to get and did get material through freedom of information processes is not excluded;

(b) MM76 is the entire extract of Hansard for the Community Affairs Legislation Committee Estimates for 10 November 2022. By reference to paragraph [40](h) of Dr McCann's affidavit, the information she seeks to rely on is in the hearing brief at 1937-1941. All pages bar 1926 (the cover page) and 1937-1941 are irrelevant and excluded. Paragraph [40](h) is not excluded;

(c) MM90 which is a copy of a BBC news article and paragraph [40](v) of her affidavit are excluded.

• [38] Some material is not properly explained so as to understand how it has been created and how it is said to be relevant and probative, being:

(a) MM34-MM41. The author and provenance of each of these documents is unclear, as is the data from which they were derived. In present form each of them is inadmissible and will be excluded tougher with paragraph [37](l) of Dr McCann's affidavit;

(b) The document escribed as Probability Calculator, MM93. It is unclear who the author of this document is, what data and programme, if any, were used to create it. In its present form, it is inadmissible and will be excluded together with the sentence in paragraph [29] of Dr McCann's affidavit which starts 'probability calculator' and ends 'MM93'.

• [39] Some material appears to have come into Dr McCann's possession after she made the statements the subject of the Board's decision. It cannot be, therefore, that Dr McCann relied on this information to support the statements she made because she did not have that information at that time. The documents are:

(a) MM5, which is expressed to take effect from 23 June 2023;

(b) MM47, being Australian Bureau of Statistics Mortality Data Statistics dated 24 November 2023;

(c) MM50, being an extract from Wikipedia dated 17 November 2023; and

(d) MM95, which contains a date of 19 February 2023, by which time four of the five identical presentations had been given.

• [40] As such, it is not relevant. Each of these documents will be excluded together with the parts of Dr McCann's affidavit which refer to them.[69]
• [41] Some of the material filed by Dr McCann is clearly annexed, by reference to paragraph [40](g) of her affidavit, on the basis it is supportive of her opinion, but without any indication she had it or relied on it at the time of making the statements. As such, Dr McCann must be advancing it as containing expert opinion evidence in support of her position, but no person is called to enable any of it to be proffered as expert evidence. Each of MM75 and MM77 is excluded, together with paragraphs [40](g) and [40](i) of her affidavit.
• [42] Because of the views I take, it is not necessary to decide now whether MM2, MM15-MM53, MM56, MM58-MM70, MM76-MM78 and MM83-MM97 are public documents within the meaning of s 51 of the Evidence Act 1977 (Qld). Dr McCann submits they are because they are:[70]

(a) published by the Commonwealth and other public authorities;

(b) documents made by a public officer pursuant to a duty to inquire and to record facts for a public purpose;[71] and

(c) reasonably available for inspection by the members of the public.

• [43] This, Dr McCann argues, makes the documents admissible without proof and as evidence of the facts they contain.
• [44] The Tribunal observes there are difficulties with that submission including:

(a) a number of the documents Dr McCann has identified are not subject to challenge by the Board.[72] It does not assist the Tribunal when a party's submissions are so imprecise;

(b) a number of the documents are not made by public officers pursuant to a duty to enquire;[73]

(c) a number of the documents are not reasonably available for inspection by members of the public,[74] even if they might otherwise be said to meet the criteria necessary to be public documents (which is in any case arguable).

• [45] It also suggests a porosity in Dr McCann's conduct of her application, as it tends to suggest that Dr McCann may be seeking to rely on some (unidentified) documents for the truth of their contents. In the event that Dr McCann seeks to rely on any of the documents annexed to her affidavit for the truth of its contents, as distinct from the currently put position set out above at [31], the Board may wish to renew its objections. That is, however, only a matter likely to become apparent on the hearing of the review.
• [46] The Tribunal will adjourn the application relating to the balance of Dr McCann's affidavit to enable the Tribunal, when finally hearing the matter, to make any further rulings as may be necessary as the hearing unfolds.
• [47] I turn now to the remainder of the material.

The overarching arguments about the admissibility of the balance of the evidence

• [48] Dr McCann's submissions contend that the evidence of 'practitioners, peers and colleagues' is admissible as:[75]

(a) opinions advanced 'on a non-expert' basis to provide evidence of the expectations of Dr McCann's peers and the community relevant to her obligations under the Code of Conduct and relied on by the Board;

(b) corroborative evidence as to safety concerns and relevant safety data shared by and with colleagues; and

(c) as providing further contextual evidence as to the circumstances of publicly known and disclosed scientific safety data at the time of and prior to Dr McCann's impugned conduct.

• [49] Firstly, Dr McCann cites no authority for the principle that opinion evidence may be advanced 'on a non-expert' basis. There is no such principle that the Tribunal has been able to discern. This is not a sustainable basis on which to seek to have the evidence admitted. At most, each person can only give evidence of their opinion; any other evidence would be hearsay and inadmissible. An individual's opinion as an individual is not probative or relevant to the issue the Tribunal has to determine.
• [50] Secondly, if the alleged 'corroborative evidence' was not known to Dr McCann prior to her making the statements, it cannot go to her state of mind in making the statements. Therefore, it is not relevant and thereby admissible on that basis. This evidence otherwise seeks to traverse the debate about the science and/or efficacy of the Covid-19 vaccines. This is not relevant to the issues before the Tribunal.
• [51] Thirdly, if the further contextual evidence was not known by Dr McCann prior to her making the statements, it cannot go to her state of mind in making the statements. Therefore, it is not relevant and thereby admissible on that basis. This evidence too seeks to traverse the debate about the science and/or efficacy of the Covid-19 vaccines. This is not relevant to the issues before the Tribunal.
• [52] Other than listing that the persons represent a cross-section of medical specialisations in the medical profession or academics in the field of medicine,[76] and a specific submission in reply concerning Mr Faletič, Dr McCann advances no specific submissions concerning the evidence of Mr Faletič, Dr McIntyre, Dr Scott, Dr Kunadhasan or Dr Houng.

Is Rado Faletič's[77] evidence relevant in whole or in part?

• [53] The Board submits that none of Mr Faletič's evidence is relevant to the Tribunal's consideration of the issues for determination in the review and his statement should be entirely rejected. It further submits that, by way of example, Mr Faletič attaches news articles and reports which cannot assist the Tribunal.[78]
• [54] Mr Faletič holds a PhD in science and is acting as a professional consultant in the area of international scientific collaborations.
• [55] Mr Faletič says his evidence is informed by his own experiences and the collective experiences of (many thousands of) other Covid-19 vaccine injured Australians.[79] It is not apparent how Mr Faletič can give evidence about the expectation of Dr McCann's peers as he is not a medical professional. It is not apparent how he can give evidence about the 'expectations of the community' as his alleged knowledge comes from a subset of the community only, and that is one with a particular set of concerns. Furthermore, Mr Faletič's statement contains numerous hearsay statements which are inadmissible and it is argumentative.
• [56] This evidence is not relevant to the issue to be determined on this review. It will be excluded.

Is Dr Andrew McIntyre's evidence relevant in whole or in part?

• [57] Dr Andrew McIntyre has provided a three-page statement dated 1 December 2023. The Board objects to the statement in its entirety on the basis that Dr McIntyre appears to assume the role of the Tribunal in determining whether Dr McCann's conduct was appropriate; the information in his statement is not relevant and it should be excluded.
• [58] Dr McCann submits that Dr McIntyre is a specialist gastroenterologist (but refers in support of that submission to his statement, which contains no outline of his qualifications) and that his statement forms one of a group of peers representing a cross-section of medical specialisations.[80]
• [59] The Tribunal infers from his statement that he and Dr McCann have shared patients[81] and that he holds qualifications as a medical practitioner.
• [60] As the Board submits, Dr McIntyre is purporting to give evidence reiterating aspects of Dr McCann's presentation, which is unnecessary and irrelevant when the video of the presentation is in evidence.
• [61] In so far as it seeks to provide other opinion evidence, it is not prepared as expert opinion and not relied on by Dr McCann as such. The Tribunal reiterates the matters set out at [49] to [51] above. The Tribunal observes Dr McIntyre is seeking to usurp the role of the Tribunal in paragraph [6] of his statement on the ultimate question in the proceeding.
• [62] This evidence is not relevant to the issue to be determined on this review. It will be excluded.

Is Dr John Scott's evidence relevant in whole or in part?

• [63] Dr John Scott has provided a three-page statement dated 4 December 2023. Dr Scott states he is an emergency physician.[82]
• [64] The Board objects to the statement in its entirety, on the basis that it is not relevant to the issues the Tribunal has to decide.
• [65] Dr Scott purports to give opinion evidence as to his views about the TGA and Dr McCann's actions.
• [66] As with Dr McIntyre, his evidence is not prepared as expert opinion and not relied on by Dr McCann as such. The Tribunal reiterates the matters set out at [49] to [51] above. Dr Scott is seeking to usurp the role of the Tribunal in paragraph [14] of his statement on the ultimate question in the proceeding
• [67] This evidence is not relevant to the issue to be determined on this review. It will be excluded.

Is Dr Jeyanthi Kunadhasan's evidence relevant, in whole or in part ?

• [68] Dr Kunadhasan is an anaesthetist and perioperative physician.[83] Dr Kunadhasan has provided a two-page statement dated 2 December 2023 with an accompanying curriculum vitae.
• [69] The Board objects to her statement in its entirety on the basis it is irrelevant because it purports to debate the efficacy of the Covid-19 vaccines.
• [70] Dr Kunadhasan's statement refers to her undertaking activities and preparing reports into the efficacy of trial data of the Pfizer BioN tech trial on which the approval of the Emergency Use Authorisation of the vaccine. One of these reports was prepared prior to Dr McCann's statements, whilst the other, on the face of Dr Kunadhasan's statement was not. It also refers to her as a co-author of a peer reviewed paper looking into the original trial data. It rehearses aspects of that material.
• [71] This evidence is not prepared as expert opinion and not relied on by Dr McCann as such. The Tribunal reiterates the matters set out at [49] to [51] above.
• [72] This evidence is not relevant to the issue to be determined on this review. It will be excluded.

Is Dr Hen Houng's evidence relevant in whole or in part?

• [73] Dr Hen Houng has provided a one-page statement dated 1 December 2023. The statement does not identify his qualifications or experience in medical practice or any other field.
• [74] The Board objects to the statement in its entirety on the basis it is irrelevant because it purports to debate the efficacy of the Covid-19 vaccines
• [75] This evidence is not prepared as expert opinion and not relied on by Dr McCann as such. The Tribunal reiterates the matters set out at [49] to [51] above.
• [76] This evidence is not relevant to the issue to be determined on this review. It will be excluded.

The second question - should the evidence of 'experts' be excluded?

What is the test for admissible expert evidence?

• [77] The parties accept that expert evidence is admissible where:[84]

(a) there is a demonstrated field of 'specialised knowledge';

(b) the witness demonstrates by specified training, study or experience in an identified aspect of that field that they have become an expert;

(c) the witness's opinion is wholly or substantially based on the witness's expert knowledge;

(d) so far as the opinion is based on facts 'observed' by the expert, those facts must be identified and admissibly proven by the expert;

(e) so far as the opinion is based on 'assumed' or 'accepted' facts they must be identified and proved in some other way;

(f) the facts on which the opinion is based must be established to form a proper foundation for that opinion; and

(g) the expert opinion explains how the field of 'specialized knowledge' in which the witness is an expert because of training, study or experience, and on which the opinion is wholly or substantially based, applies to the facts assumed or observed to as to produce the opinion.

• [78] Three witnesses have provided statements expressed on their face as 'expert' opinions: Associate Professor Peter Parry ('Parry statement'), Professor Robert Clancy ('Clancy statement') and Dr Julian Fidge ('Fidge statement').

• [79] The Board challenges the Parry statement and the Fidge statement as expert statements on the basis that each person does not hold relevant qualifications in identified fields of specialist knowledge or demonstrate that, by reason of training, study or experience, they have become experts in those fields.
• [80] The Board challenges the Clancy statement on the basis that whilst he may fall within the category of an expert, there is no need to ultimately determine the issues dealt with in the Clancy statement because his evidence is not relevant to the issues the Tribunal has to decide.

• [81] Dr McCann submits that the evidence is not tendered to finally prove the opinions that are advanced in it but for the twin purposes of:[85]

(a) providing publicly available scientific matters extant at the time of Dr McCann's impugned conduct, providing a basis for the relevant question of the circumstances of Dr McCann's conduct; and

(b) to provide further evidence as to the expectations of her peers and the community, which is directly relevant to whether or not her conduct may be considered satisfactory under the binding Code of Conduct for medical practitioners.

• [82] Dr McCann also submits, however, that ' ...in most if not all cases the experience, knowledge and qualifications of each may be said to be relevant to any expressed opinions'.[86]
• [83] Further, Dr McCann submits that:

(a) where opinions are advanced, they are not done so to determine the truth of those matters but are advanced on a 'non-expert' basis with the purpose of providing evidence of the expectations of Dr McCann's peers and the community relevant to her obligations under the Code of Conduct;[87]

(b) regarding the Parry and Fidge statements, there are three distinct purposes for the tender of their evidence, that is, to provide:[88]

(i) further independently adduced evidence of the factual scientific data in the public sphere at the relevant time going to the basis of Dr McCann's impugned statements;

(ii) direct evidence of the knowledge and expectations of Dr McCann's colleagues and peers at the time Dr McCann made the impugned statements; and

(iii) corroborative evidence as to the safety concerns and data in respect of the vaccines shared by and with those colleague practitioners; and

(c) the opinions contained in the evidence are not to be tendered as 'expert' to prove the safety or efficacy of the vaccines, but for the purpose of proving the expectations of Dr McCann's professional colleagues and peers, in addition to the further evidence of known scientific data and the opinions of Drs Fidge and Parry; the evidence is not tendered for the purpose of the Tribunal determining questions of the vaccines' safety or efficacy.[89]

• [84] It thus appears that despite asserting she does not intend to lead expert evidence from them, in fact Dr McCann intends to lead some opinion evidence from these persons. Dr McCann provides no authority to support the proposition that 'non-expert' opinion evidence is admissible. Any evidence of an opinion which is sought to be led can only be admissible if it is derived consistently with the requirements for giving evidence as an expert.
• [85] In so far as it is opinion evidence about 'the knowledge and expectations of Dr McCann's colleagues and peers', it is unclear how an individual medical practitioner can give such an opinion in a manner which can be ascribed any weight. The field of expertise which would support such an opinion would seem to be some sort of academic expertise in data collection, analysis and reporting in health policy. None of the 'experts' have such expertise. Otherwise, any such opinion can be based on no more than anecdotal information. As such, it would be inadmissible in accordance with the ordinary rules of evidence. Further, it would be inconsistent with the objects of the QCAT Act to have tranches of evidence led to which no weight could be given.

• [86] Despite submitting that Dr McCann does not intend to lead expert evidence from Associate Professor Parry 'in the traditional sense',[90] on its face the Parry Statement is:

(a) titled 'Expert Witness Report of Associate Professor Peter Parry';

(b) includes 'Part 1 - Qualifications' as a subheading, which sets out his qualifications;

(c) includes 'Part 4 - expert witness opinion on three questions requested by Dr Melissa McCann', which sets out that he is a consultant child and adolescent psychiatrist.

• [87] He states at paragraph [144] of his statement that his expertise is in psychiatry and that immunology, virology and vaccinology are not his fields. He sets out that his PhD research was into an overdiagnosis epidemic of mania/bipolar disorder in prepubertal children in the United States (at paragraph [7]) and posits that the evidence from his study showed the excessive influence of the pharmaceutical industry drove much of a false diagnosis epidemic (at paragraph [8]). At paragraph [145] he states that the broad scope of his PhD research gave him insights into the conflicts of interest issues that bedevil all of medicine as well as risk/benefit issues, and that he presents a chronological outline in his statement of his reading of the research and data, and publishing, during the pandemic, which he is of the opinion is relevant. At paragraph [146] he opines that the data, evidence and derived opinions lead him to the conclusion that worldwide the health regulators have made grave errors of judgment.
• [88] It is not apparent that Associate Professor Parry has expertise which would equip him to offer the opinions he purports to offer in this proceeding.
• [89] Additionally, numerous paragraphs of the Parry statement do not contain verifiable information which can be tested in cross examination by the Board. Some examples include:

(a) that he relies on derived opinions (at paragraph [146]). Whatever they are, they are not identified;

(b) at paragraph [163]: '...and several other people, including a tradesman to our property who spent several days in a major Brisbane hospital with myocarditis after his Pfizer vaccine. He said nurses told him that they saw a lot of cases like his 'but weren't allowed to talk about it'. This is imprecise and in part hearsay;

(c) At paragraph [164]: 'While I took this watchful waiting approach, our Qld Health clinic noticed perhaps 20% of our colleagues complaining of severe reactogenicity reactions ... often requiring them to take a day or two of sick leave'. This is imprecise and in part hearsay;

(d) At paragraph [176]: 'Further, over the past 2½ years, it is well-known to me and discerning colleagues, first and second hand, patients that describe unprofessional experiences of scorn and derision from disbelieving doctors and nurses to patients for suspecting or reporting adverse events. Similarly, there are reports of apologetic explanations from doctors and nurses that they are in fear of losing their registration if they report the adverse events, further impacting underreporting'. This is in part hearsay and expressed in subjective and partisan language unsuited to someone giving expert evidence.

• [90] As to Dr McCann's submission that the 'so-called' expert evidence:

(a) provides 'publicly available scientific matters extant at the time of Dr McCann's impugned conduct providing a basis for the relevant question of the circumstances of Dr McCann's conduct', there is no evidence Dr McCann had any knowledge of these matters prior to making the statements. Consequently, the material cannot go to information which was relevant to Dr McCann's state of mind or be material on which she relied to make the statements in issue. Further, the Parry statement:

(i) recites a series of events occurring throughout the world, historically, under a heading 'recidivist offending of pharmaceutical companies' and refers to aggregated data on violations of parent companies in the pharmaceuticals industry in the United States of America over approximately two decades. He extracts certain apparently publicly available documents involving varying drugs and drug companies.[91] Each of these is irrelevant to the issues before the Tribunal which is considering the statements about the Covid-19 vaccine made by a general practitioner on an apparently sponsored speaking circuit in Australia in the context of the National Law;

(ii) is critical of the technologies used for the vaccines, the official narrative around the vaccines and gives hearsay opinion evidence about views of other, unidentified medical colleagues on vaccine hesitancy. The former is inadmissible as it is opinion evidence for which he himself concedes he is not qualified as an expert and the hearsay opinion is inadmissible;

(iii) is critical of the reporting of data from the clinical trials of various stages of the different vaccinations developed by differing pharmaceutical companies and gives inadmissible hearsay of what other practitioners have told him about their experiences with family members or patients with the Covid-19 vaccination;

(iv) recites the opinions of others about alleged bias in industry research by reference to, inter alia, Vioxx in and from 2000, research conducted on an antidepressant in 2001, and debates about Tamiflu in a United Kingdom Parliamentary Public Accounts Committee Inquiry in 2014. Again, this is hearsay. It is also irrelevant to the issues in this referral;

(v) makes observations about matters relating to Covid-19 vaccination.[92] There is nothing to indicate any connection between Associate Professor Parry and Dr McCann. It is also inadmissible hearsay;

(b) provides evidence of 'the expectations of her peers and the community, which is directly relevant to whether or not Dr McCann's conduct may be considered satisfactory under the binding Code of Conduct for medical practitioners'. The Parry statement expresses a view that Associate Professor Parry has negative opinions about pharmaceutical company sales representatives and a healthy scepticism of the pharmaceutical industry. He opines this is 'alike many medical colleagues'[93] which is plainly inadmissible hearsay and cannot be tested;

(c) 'is directly relevant and critical to the Tribunal's cogent consideration of the matter', this more general submission is answered by the matters already set out in response to (a) and (b).

• [91] The Tribunal excludes the Parry statement in its entirety.

• [92] Apart from noting that Professor Clancy is a specialist mucosal immunologist,[94] Dr McCann makes no specific submissions concerning the Board's challenge to Professor Clancy's evidence.
• [93] Professor Clancy has provided a document headed 'Report of Expert Witness' dated 25 October 2023. He lists the material provided to him and his qualifications. He refers to the Tribunal's Practice Direction No 4 of 2009. He concludes the report with statements generally made by expert witnesses, relating to his making of inquiries, that matters in his report are to his knowledge true, he genuinely holds the opinions which he has stated, and he understands his duty to the court and has complied with it.
• [94] He does not set out what questions he was asked to address, although he refers to being asked questions. He refers to a list of statements made by Dr McCann but does not set out what they are. Doubtless these matters could be rectified if Dr McCann was seeking to lead evidence from him as an expert. However, she is not.
• [95] His evidence is expressed as opinion evidence given by an expert. If Dr McCann is not relying on it on that basis, it is not otherwise admissible.
• [96] Otherwise, he deals in the statement with his own attempts to contact Ahpra. This is not relevant to the issue before the Tribunal, which is whether Dr McCann's professional conduct was unsatisfactory. Additionally, in paragraph [2] on page 5 and paragraph [3] on page 6, he is seeking to usurp the role of the Tribunal on the ultimate question in the proceeding.
• [97] The Tribunal excludes the Clancy statement in its entirety.

• [98] On its face the Fidge Statement is called 'Expert Opinion of Dr Julian Fidge'. He is a rural general practitioner with a background in pharmacy, having practised as a pharmacist for ten years before studying medicine. Having perused his statement, the Tribunal accepts:

(a) his special interests are in areas that include alcohol and drug rehabilitation and skin cancer management and he is a trained opioid substitution therapy provider;

(b) his published research is in relation to the supply of syringes for injecting drug users by pharmacies in 1991;

(c) it is not apparent that he has any specialised study, training or experience in vaccines, virology or immunology.

• [99] In its first paragraph the Fidge statement recites 'I have been asked to provide an expert opinion on the conduct of Dr McCann in regard to a decision made by the [Board] about her comments regarding the [TGA] and Covid-19 vaccinations' (emphasis added).
• [100] The Fidge statement says at paragraph [4]: 'The following represents the evidence I would provide if called to give evidence. It is all my professional opinion as a medical practitioner...' (emphasis added). The statement continues, at paragraph [6], 'I am well qualified to provide an opinion about a common pharmacotherapy like a vaccine, the regulation of pharmaceuticals and biostatistics' (emphasis added). It is plain from the face of the Fidge Statement that he sees himself as an expert giving opinion evidence, having been asked to give evidence as an expert. His statement purports to express his opinions about many things including:

(a) whether a health care practitioner has an obligation to support or not support a government department or programme (paragraph [9]). The obligations of health care practitioners to third parties is a legal issue;

(b) what the professional obligation of a health care practitioner is (paragraph [11]). Again, this is a legal issue;

(c) that the novel vaccine delivery system which uses a genetically modified mRNA to deliver a generically modified protein was not properly tested (paragraph [16]). This is an opinion given about a medical matter for which he has no evident specialist qualifications or expertise;

(d) Dr McCann's professionalism in her actions (paragraph [20]). This is the issue the Tribunal has to decide.

• [101] The Tribunal accepts the Board's submission that many of the opinions outlined in the Fidge statements are more appropriately characterised as matters of law or, at the very least, matters the Tribunal is required to determine.
• [102] Further, Dr Fidge gives inadmissible hearsay at paragraph [14] of what he says other medical practitioners and pharmacists have told him. He also purports to give inadmissible evidence about Dr McCann's state of mind at paragraph [26][95] and about the state of knowledge of unspecified patients of unspecified doctors at paragraph [28]. He gives evidence about his own emotions and feelings at paragraph [32], which is irrelevant. He purports to give evidence about what unspecified patients of his have told him at paragraph [32]. He misunderstands and gives irrelevant evidence about what actions of Dr McCann the Board has imposed immediate action over at paragraph [33].
• [103] The Tribunal rules that the Fidge statement should be rejected in its entirety.
• [104] In view of my ruling on the relevance and admissibility of the Fidge statement, it is not necessary to address the Board's concerns about Dr Fidge's suitability as a witness.

What considerations, if any, arise under the Human Rights Act 2019 (Qld)

• [105] As the Tribunal is acting in an administrative capacity in the conduct of this review, it must apply the Human Rights Act 2019 (Qld) ('HR Act').[96] Dr McCann is entitled to certain human rights, which may be limited because of the review process and any decision the Tribunal makes.[97] Dr McCann's human rights include the right to recognition and equality before the law, to freedom of expression, to privacy and reputation and the right to a fair hearing. When the Tribunal is exercising its functions it must interpret statutory provisions in a way which is compatible with human rights[98] and act or make a decision in a way which is compatible with human rights.[99] The Tribunal does not consider there is any ambiguity in this review which requires consideration, apart from the plain meaning of the statute. The Tribunal is satisfied that this review process offers Dr McCann the right to a fair hearing, and that that right has not been limited. Similarly, there has been no limitation on Dr McCann's right to recognition and equality before the law. The Tribunal's review of the Board's decision does not unlawfully or arbitrarily interfere with Dr McCann's person, privacy, family, home or correspondence, because the review is conducted within statutory parameters. A finding that Dr McCann's conduct was unsatisfactory may limit Dr McCann's other identified human rights. The National Law provides that the main guiding principle of the national registration and accreditation scheme is that the paramount considerations are the protection of the public and the maintenance of public confidence in the safety of services provided by registered health practitioners.[100] I am satisfied that any limitation on Dr McCann's rights arising because of any ultimate finding of unsatisfactory conduct is consistent with the paramount principles in the National Law. These considerations outweigh Dr McCann's private interests so that any limitation which the Tribunal imposes is reasonable and justified in the circumstances.

[1] Dr McCann has produced a transcript of the presentation and annexes same as MM71 to her affidavit, sworn on 6 December 2023 ('Dr McCann's affidavit').

[2] Notice of the Board's decision to take action dated 23 August 2023 ('Board's decision').

[4] Applicant's Submissions, filed in the Tribunal 15 March 2024, [1] ('Dr McCann's written submissions').

[5] The imposition of the caution not being a reviewable decision: s 199(1) Health Practitioner Regulation National Law (Queensland) ('National Law').

[6] Dr McCann's affidavit (n 1): with its 97 exhibits, it comprises 2,441 pages of material.

[7] Dr McCann's submissions (n 4) 2 [4].

[9] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 20(1) ('QCAT Act').

[12] Heath v Medical Board of Australia [2024] QCAT 163, 6-7 [19].

[13] Pearse v Medical Board of Australia [2013] QCAT 392, 11 [37]: What was led was evidence of the practitioner's implementation of a practice of having a chaperone present for intimate examinations and an intention to continue that practice, irrespective of the outcome of the review, see 11 [38]-[39]. AMS v Medical Radiation Practice Board of Australia [2019] QCAT 400 ('AMS'), 9 [34]: What was led was evidence from the practitioner and more recent medical material concerning the practitioner's fitness, see 9-10 [34]-[38].

[14] QCAT Act (n 9) s 24(1).

[22] R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228 , 256 (Evatt J).

[23] Dr McCann's submissions (n 4) 5 [15].

[24] Price v Nursing and Midwifery Board of Australia [2022] QCAT 439, 7-8 [36]-[37].

[25] Medical Board of Australia v Hindley [2024] TASCAT 223, [117]-[118].

[26] Medical Board of Australia v Piesse (Review and Regulation) [2022] VCAT 82, 42 [130]-[131].

[27] Fidge v Medical Board of Australia (Review and Regulation) [2022] VCAT 1137, 20 [98].

[28] Dr McCann's submissions (n 4) [1].

[29] Contained in the Board's s 21(2)(b) Bundle filed 17 November 2023 ('s 21(2)(b) bundle').

[30] Dr McCann's submissions (n 4); Dr McCann's affidavit (n 1) MM71.

[31] Respondent's written submissions on admissibility of expert evidence and relevance, filed 16 February 2024, 9 ('Board's submissions').

[35] Respondent's written submissions in reply on admissibility of expert evidence and relevance, filed in the Tribunal 3 April 2024, [3] ('Board's reply submissions').

[38] Dr McCann's submissions (n 4) 4 [11].

[39] Ibid 10 [29]; expanded 29 [51] by reference to 15 subparagraphs and a further eight sub-subparagraphs.

[45] Ibid [43]. The submissions do not accurately state the statutory test as they refer to a reasonable belief that her conduct was unreasonable, which is not what is provided for in s 178(1)(a)(i) of the National Law (n 5).

[46] Eg, Dr McCann's submissions (n 4) 15 [48](a), 17 [48](f)-(g); Dr McCann's affidavit (n 1) MM25 MM6, MM7, MM10, MM13, MM14, MM30. This is not intended to be an exhaustive list.

[49] Applicant's submissions in reply - admissibility of evidence, filed 26 April 2024, 1-2 [1]-[4] ('Dr McCann's reply submissions').

[51] Dr McCann's submissions (n 4); Dr McCann's affidavit (n 1) MM31, MM32, MM33, MM42, MM44, MM46, MM48, MM49, MM50 (undated), MM51, MM54. MM58, MM59, MM60, MM64, MM65, MM66, MM67, MM69, MM70, MM86.

[52] Eg, graph visible at 0.09.56 of the video.

[53] Dr McCann's submissions (n 4) 9 [23].

[54] Dr McCann's affidavit (n 1) 12 [37](c) and MM82.

[55] Ibid 13 [37](d) and MM28, MM33, MM51, MM52, MM53, MM54, MM60, MM61, MM62, MM64, MM70, MM94.

[58] Dr McCann's affidavit (n 1) 14 (37)(i) and MM31.

[61] Ibid MM42 - WHO User Manual; MM96 - ICH Guideline.

[63] Ibid MM32, MM44, MM45, MM46, MM49, MM63, MM65, MM66, MM67, MM68, MM69.

[68] Ibid MM81, forming part of tab 12 to the s 21(2)(b) bundle (n 29).

[69] That is Dr McCann's affidavit (n 1) [25], [37](r), [37](t), and all the words from 'and finally that 65%' through to the words 'between vaccination and death' in [29].

[70] Dr McCann's reply submissions (n 49), 6-7 [17]-[19].

[71] Hindman v Sergeant [2013] QDC 143, 5 [14] where the Court found that documents prepared during a review of legislative enactments as part of public servants' duties following a ministerial query are not public documents within s 51 of the Evidence Act 1977 (Qld).

[72] Dr McCann's affidavit (n 1) MM2, MM15-25, MM27, MM30, MM43, MM73-74, MM84-85, MM92.

[73] Ibid MM29, MM32, MM34-41, MM42, MM44, MM45, MM46, MM49, MM50, MM52, MM53, MM63, MM64, MM65, MM66, MM67, MM68, MM69, MM76, MM77, MM78, MM83, MM87, MM89, MM90, MM93.

[74] Ibid MM33, MM48, MM60, MM61, MM62, MM70.

[75] Dr McCann's submissions (n 4) 41 [70].

[77] I have not referred to him as Dr Faletič simply to distinguish that he is not a medical practitioner.

[78] Board's reply submissions (n 39) [4].

[79] Statement of Rado Faletič, dated 12 October 2023, [3] , 2 [7].

[80] Dr McCann's submissions (n 4) 44-45 [79](b)(i).

[81] Statement of Dr Andrew McIntyre, dated 1 December 2023, [1].

[82] Statement of Dr John Scott statement, dated 4 December 2023, [1].

[83] Statement of Jeyanthi Kunadhasan, dated 2 December 2023, [1].

[84] Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705, [85] (Heydon JA); Board's submissions (n 35) 3 [17]; Dr McCann's submissions (n 4) 41 [69].

[85] Dr McCann's submissions (n 4) 2 [4].

[91] Eg, Eli Lilly & Co and Zyprexa; AstraZeneca and Seroquel; Roche and Tamiflu.

[92] See, eg, Expert Witness Report of Associate Professor Peter Parry, dated 30 November 2023, 35 [155].

[94] Dr McCann's submissions (n 4) 44-45 [79].

[95] He says he has never met her: Expert Opinion of Dr Julian Fidge, dated 6 November 2023, [3].

[96] Human Rights Act 2019 (Qld) s 9(4)(b); see Sabet v Medical Practitioners' Board of Victoria [2008] VSC 346; (2008) 20 VR 414 [119]-[127].

[97] Ibid, ss 8(b), 13(2).

[98] Ibid s 48.

[99] Ibid s 58.