UKCAF website

Oshlack v Rous Water -
not so much ‘The Beginning of the End’,
more ‘The End of the Beginning’?

Doug Cross
20th May 2012

The learned Judge has at last issued her verdict on Rous Waters attempt to fluoridate communities in New South Wales, and everyone is miserable! But the real battle has yet to be joined - let’s hope it won’t take another year to get a common-sense result.

After an almost interminable delay in reaching her decision over the confrontation between Australian advocate Al Oshlack and Rous Water (or behind the scenes, the New South Wales Health Department),

At first sight, Judge Pepper's ruling in this Judicial Review doesn't look like good news for our friends Down Under - Al’s claims are all rejected, and Rous Water appears free to go ahead to build the new fluoridation plants.

But don’t hold your breath - it seems that this is just the end of ‘Round One’! Al’s barrister has announced that he will now appeal to the Supreme Court of NSW, on the ground that Judge Pepper’s verdict is legally flawed.

Controversially, she relied on a brief note from Dr Sivarneswaran, for the Dept of Health, claiming that fluoridation is absolutely safe and effective, but with no evidence to back up that absurd claim.

On such insubstantial and unreliable evidence a review of the compliance of Rous Water's plan was apparently founded. On the basis of such flawed and inappropriate 'evidence' the ruling cannot stand,

The initial decision by Judge Biscoe that fluoridation is subject to regulation under the Environmental Planning and Assessment Act 1979 still stands. This means that a full Environmental Impact Assessment must be carried out before a new fluoridation scheme can be introduced.

As I stated in my Affidavit to the Land and Environment Court, the objective of the project is to affect the health of the public, who are considered to be components of ‘the environment’ under this progressive law.

Any relevant Environmental Assessment must therefore include a full formal Health and Social Impact Assessment to be carried out according to the Guidelines published in Australia for all such studies.

The Review of Environmental Factors (REF) submitted by Rous Water for this project was absurdly inadequate for any such purpose - I found that it was actually impossible to complete an audit of its compliance with the relevant legislation, so restricted was its coverage of public health (i.e., there wasn't any at all!).

What's more, no adequate and compliant EIA could EVER be produced for ANY fluoridation scheme in Australia at present. The health sector routinely conceals all evidence of the adverse side effects of fluoridation, making a balanced appraisal of the impacts of all such schemes completely impossible.

This high-profile case rested solely on issues in planning law. This is why all of the Expert Evidence tendered by both sides on the health effects of fluoridation - both positive and negative - was entirely irrelevant.

As far as I can see my own Affidavit was the only one that actually dealt with the issues before the Court. A lot of wasted effort from both sides went into the preparation of evidence for this case - let’s hope that the next round is more directly focussed on the real issues!

An Appeal can only be made on an allegation of defective legal process in the Judicial Review itself, so the scientific experts can now all sit back and watch to see how Al’s barrister deals with the actual legal issues before the Court.

And of course, the fact that Dr Shaw has now given an opinion that fluoridated water is actually a medicine or drug in English law may have a bearing on this case on Australia. Since drugs are drugs in both the UK and Oz, and must only be used when licensed for that purpose,

Rous Water's attempt to impose an unlicensed drug on the target populations can only be illegal, so how can a Judicial Review declare that this verdict was reached with full attention to all legal issues if its legitimacy under Planning Law is challenged under under medicinal and environmental law?

So - will Rous Water and the Dept of Health now have to pull back and delay their evil scheme to impose fluoridation on an opposed general public yet again? Things are about to get really interesting, so we’ll just have to sit back and wait!

Judge Pepper's long delayed ruling can be accessed at

http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=158565