Osborne v R

Issues 2The proper officer sought to have the subpoena set aside, on the basis that production of the documents would contravene s 135A of the National Health Act 1953 (Cth). On 21 August 2013 the District Court (Lerve DCJ) set aside the subpoena. On 4 September 2013 the primary judge certified, pursuant to s 5F(3)(b) of the Criminal Appeal Act 1912 (NSW) that the judgment or order was a proper one for determination by this Court on appeal. In so certifying, he noted that the proper officer did not dispute that the subpoena had a legitimate forensic purpose, that the setting aside of the subpoena had potential implications for the fairness of the accused's criminal trial and that the operation of s 135A of the National Health Act involved arguable points of law. 3When this Court considers whether to grant leave under s 5F(3)(a) (being an alternative to a certificate of the trial judge), the first question to be answered is whether the impugned decision is an "interlocutory judgment or order", which has been given or made in proceedings to which the section applies: s 5F(2). It may be accepted that the judgment and order under challenge in the present case fall within that description: Attorney General (NSW) v Lipton [2012] NSWCCA 156 at [25]. Although there is no reason to doubt the appropriateness of an appeal in the present case, this Court has remarked on other occasions that it is usually preferable for that issue to be determined by this Court, rather than the primary judge, unless there are circumstances known to the primary judge and not revealed in the judgment or order sought to be challenged, which bear upon the matter: Pellegrino v Director of Public Prosecutions (Cth) [2008] NSWCCA 17; 71 NSWLR 96 at [8]; WO v Director of Public Prosecutions (NSW) [2009] NSWCCA 275 at [23]. 4The terms of s 135A, as it presently stands, and so far as directly relevant are as follows: 135A Officers to observe secrecy (1) A person shall not, directly or indirectly, except in the performance of duties, or in the exercise of powers or functions, under this Act or for the purpose of enabling a person to perform functions in relation to a medicare program or under the indemnity legislation or the Personally Controlled Electronic Health Records Act 2012 (whether as a delegate or otherwise), and while the person is, or after the person ceases to be, an officer, divulge or communicate to any person, any information with respect to the affairs of a third person acquired by the first-mentioned person in the performance of duties, or in the exercise of powers or functions, under this Act. Penalty: $5,000 or imprisonment for 2 years, or both. (2) Where the third person mentioned in subsection (1) is a party to an action or proceeding before a court, nothing in that subsection precludes the disclosure to the court of information with respect to the affairs of the third person. ... (24) In this section: ... "court" includes any tribunal, authority or person having power to require the production of documents or the answering of questions. 5There are numerous subsidiary provisions providing for specific circumstances in which an officer (usually the Secretary) or the Minister may disclose or authorise disclosure of "protected information", being information about a person held in the records of the Department. (It was not disputed in the present case that the Medicare records sought under the subpoena fell within the scope of s 135A.) 6The critical question for present purposes is whether the prohibition requiring that a person not "divulge or communicate to any person" prohibited the proper officer from providing information to the Court in response to the subpoena. The ordinary meaning of "person" does not include a court and has been held not to include a court in similar legislation. (The case law will be referred to below.) The primary basis for a contrary conclusion in the present legislative context is the negative implication which could be derived from sub-s (2), namely that, were it not for that provision, sub-s (1) would preclude the disclosure of information to a court. Thus, because sub-s (2) purports to provide a limited exception to sub-s (1), it would be otiose and, so far as the limitation is concerned, ineffective, if sub-s (1) did not extend to prohibiting disclosure of information to a court. (Subsection (2) does not apply in terms to this proceeding because the persons whose affairs would be disclosed are the victims of the alleged crime, but are not themselves parties to the proceedings.) 7The resolution of this problem is assisted by reference to the case law and the legislative history of s 135A. It is convenient to deal first with the case law.

Case law - meaning of "person" 8The proposition that disclosure "to any person" does not include providing material to a court in response to a subpoena has a long history with respect to statutory provisions in this country. In Canadian Pacific Tobacco Co Ltd v Stapleton [1952] HCA 32; 86 CLR 1 Dixon CJ considered the operation of a provision similar to s 135A(1), namely s 16(2) of the Income Tax and Social Services Contribution Act 1936 (Cth). Dixon CJ held that the requirement in s 16(2) that an officer not "divulge or communicate to any person" protected information, attached the expression "to any person" to both "divulge" and "communicate" and continued: "If that is so, the section probably cannot apply to courts, which would hardly be called persons": at 6. No doubt that conclusion was easily reached, s 16(2) being complemented by 16(3), which provided that an officer "shall not be required to produce in court ... or to divulge or communicate to any court [protected information]". 9The decision of the Chief Justice was appealed, but there was no challenge to that aspect of the reasoning. Similar legislation was referred to in Miller v Miller [1978] HCA 44; 141 CLR 269 at 277 (Gibbs J) and 279 (Jacobs J) in less definitive terms. However, in Hilton v Wells [1985] HCA 16; 157 CLR 57, dealing with similar language in s 7(4) of the Telecommunications (Interception) Act 1979 (Cth), both the majority (Gibbs CJ, Wilson and Dawson JJ) at 76 and the minority (Mason and Deane JJ) at 87 accepted the proposition that a requirement not to divulge or communicate to another person did not refer to disclosure to a court (or, at 87, "giving of evidence before a court"). Section 7(6) of the Telecommunications (Interception) Act stated that "[w]ithout limiting the application of subsection (4)" a person could disclose intercepted communications in certain criminal proceedings. As the majority stated in Hilton v Wells at 76, after quoting the introductory words to sub-s (6): "They suggest that the sub-section is entering a field which differs from that which is the subject of sub-s (4). They are confirmatory of a construction of sub-s (4) which would exclude from its prohibition the communication of intercepted information by a person to a Court. ... Nevertheless, it is odd that the section does not contain any prohibition on divulging intercepted information to a court otherwise than in the circumstances prescribed in sub-s (6). We incline to the view that this omission is merely a legislative oversight the result of which however is that relevant evidence obtained from an intercepted communication may be given in a proceeding other than those mentioned in sub-s (6) without the person giving it committing an offence under the Act." 10The minority in Hilton v Wells derived from the limited use permitted by sub-s (6) an implication that disclosure in court proceedings was otherwise prohibited, but not by reading sub-s (4) to have that effect: at 88-89. 11The Telecommunications (Interception) Act was amended following the decision in Hilton v Wells to clarify that the prohibition extended to giving intercepted information in evidence in a proceeding: new s 63. That approach was consistent with the view that the prohibition on communicating "to another person" did not extend to providing evidence to the court (or in court). The new provision was considered in John Fairfax Publications Pty Ltd v Doe (1994) 37 NSWLR 81 at 86 (Gleeson CJ) and at 111C-D (Kirby P), but no doubt was cast on the approach to statutory construction adopted in the High Court. 12The Full Court of the Federal Court (Bowen CJ, Lockhart and Sheppard JJ) in Commissioner of Taxation v Nestle Australia Ltd (1985-1986) 12 FCR 257 considered the effect of s 16(2) of the Income Tax Assessment Act 1936 (Cth), which prohibited an officer divulging or communicating "to any person" protected information. As in Canadian Pacific, s 16(3) contained an additional prohibition, stating that an officer shall not "be required to produce in court ... or to divulge or communicate to any court" protected information. The Full Court stated that the prohibition against divulging or communicating information to "any person", "plainly could not apply to a court": at 262. There was, of course, coherence between this construction of s 16(2) and the separate prohibition in s 16(3). These authorities, together with additional cases in which single judges have followed these authorities, were identified (and followed) by Lindgren J in Kizon v Palmer (1997) 72 FCR 409 at 430-431 (Jenkinson and Kiefel JJ agreeing). 13The general proposition to be derived from the authorities is that legislation using very similar terminology to s 135A(1) has been construed as not covering communication to a court. Two issues, however, remain. First, there is (as noted above) support in the particular language of s 135A for a contrary conclusion. Secondly, it is necessary to consider whether the prohibition on disclosing information "indirectly" may be breached by responding to the subpoena, because the information initially provided to the court may later become available to the applicant and his representatives and may be disclosed in evidence. Such a result could, it was submitted, fall within the concept of indirect disclosure to any person, even accepting that the court was not a person.

Legislative history 14It is convenient to turn next to the legislative history of s 135A, although not all of the history was relied upon in the course of the appeal. There was no confidentiality provision in the National Health Act as enacted in 1953; the first such provision, s 82ZF, was introduced by the National Health Act 1969 (Cth), the operative prohibitions of which were in the following terms: 82ZF Officers to observe secrecy (1) A person shall not, directly or indirectly, except in the exercise of his powers, or in the performance of his functions, under this Division, and while he is, or after he ceases to be, an officer, make a record of, or divulge or communicate to any person, any information with respect to the affairs of another person acquired by him in the exercise of his powers, or in the performance of his functions, under this Division. Penalty: Five hundred dollars. (2) A person who is, or has been, an officer shall not, except for the purposes of this Division, be required- (a) to produce in court a document that has come into his possession or under his control in the exercise of his powers, or the performance of his functions, under this Division; or (b) to divulge or communicate to a court any matter or thing that has come under his notice in the exercise of any such powers or in the performance of any such functions. 15There were exceptions, allowing for disclosure where the Minister or Director-General considered it to be in the public interest and for disclosure to prescribed authorities and persons. There was no expanded definition of "court". 16With some minor changes, s 82ZF was renumbered as s 135A by the National Health Act 1975 (Cth). Subsections (1) and (2) were broken into three by the addition of a new subs (1) defining people on whom the obligations were imposed. 17The critical iteration of this provision occurred when (according to the historical note) it was "repealed and replaced" with a new version by the Health Legislation Amendment Act (No 2) 1983 (Cth). The changes effected by the new provision were threefold. First sub-ss (1) and (2) were recombined, a change having no relevance for present purposes. Secondly, and this appears to have been the main policy change, as identified in the Second Reading Speech and in the explanatory memorandum, greater flexibility was permitted with respect to disclosure to other authorities, either in the public interest, or for the administration of State, Territory and Commonwealth laws. Thirdly, and most importantly for present purposes, sub-s (3), prohibiting production to a court of protected information, was repealed and replaced by a provision equivalent to the present sub-s (2). The result, unfortunately and surprisingly given the history of similar Commonwealth legislation, is to re-enact the confusion created by the legislation considered in Hilton v Wells. Thus, there is an express prohibition on disclosure to "another person" (which would not usually include a court) and a permissive provision permitting disclosure for the purposes of some proceedings, but not others. 18In Hilton v Wells, the dissenting judges (Mason and Deane JJ) addressed this issue in the following terms: "Unless the provisions of sub-s (6) are construed as impliedly precluding the disclosure of some information obtained as a result of interception, the subsection serves no real purpose. No other provision of the Act imposes a prohibition on the disclosure in evidence in legal proceedings of information obtained as a result of interception. It cannot be suggested that the purpose of the section was to make clear that the prohibition contained in sub-s (4) did not extend to disclosure in the course of giving evidence in legal proceedings since, if that were the purpose of sub-s (6), there would be no point at all in the restriction of its provisions to the five specified classes of proceedings. In the overall context of a section which, under criminal sanction, prohibits unauthorized interception and prohibits the unauthorized use of information obtained as a result of authorized interception, the implication is plain that the provisions of sub-s (6) were intended to provide a comprehensive identification of the circumstances in which information obtained as a result of interception of a telecommunications communication or as a result of access to telegrams could lawfully be given in evidence in legal proceedings. In other words, the effect of sub-s (6) is that evidence can only be given of [intercepted information] ... if the proceedings are of one or other of the kinds described." 19The majority thought the lack of a general prohibition on disclosure to a court "odd" and "incline[d] to the view that this omission is merely a legislative oversight". Nevertheless, they gave effect to the legislation according to its terms, with the result that no offence was created in giving information to a court in circumstances other than those identified in sub-s (6).

Construction of current provision 20There are three reasons for concluding that the approach of the majority in Hilton v Wells should be followed in relation to the National Health Act, quite apart from the fact that it was a majority approach adopted in the High Court. First, the lacuna in the National Health Act cannot be described as an "oversight". The 1983 amendments expressly removed an existing provision, the equivalent of which is now sought to be relied on by the Commonwealth as a negative implication. There may have been some other mistake made by the legislature, but the express removal of a provision prevents the apparent lacuna being described as an "oversight". 21Secondly, the purpose of the amendments generally was to broaden the circumstances in which disclosure for legitimate purposes could take place. It would have been consistent with that purpose to permit courts to have access to material in circumstances where they would be allowed to consider whether the material should be further disclosed, as relevant to a legitimate forensic purpose in the proceedings before them, and subject to any other legitimate considerations militating against disclosure. However, because of the broad definition of "court" it was understood that sub-s (1) could catch some "courts" because that term extended beyond courts in the ordinary sense of the word and included authorities and persons having power to require the production of documents or the answering of questions. Thus the structure of the new sub-s (2), "nothing in [sub-s (1)] precludes", would be consistent with such a purpose. 22Thirdly, although the new section repealed and replaced the old, it maintained much of the old and may properly be viewed as a form of amending provision. So understood, it would be implausible to read the continuing language of "divulge or communicate to any person", in sub-s (1), as being expanded to mean "divulge or communicate to any person or court". Nor, in the light of the long line of authority dealing with similar provisions, is it possible to construe the word "person" to cover a "court" in the ordinary sense of the word, where no such intention is expressed. 23The Commonwealth resisted this conclusion on a second basis, namely that s 135A(3) vested in the Minister the power to consider whether it was in the public interest to release information, a power which could have been invoked in the present case. The Commonwealth further noted that an adverse decision of the Minister would be amenable to judicial review. So far as they go, those submissions may be accepted: however, they do not consider how the Minister's role could be expected to operate with respect to a serious criminal trial under State law. It is possible that the Parliament thought the Commonwealth Minister administering the National Health Act would be well placed to conduct such a consideration, but such an inference is by no means self-evidently correct. 24Nor is it correct to say that the proposed construction rendered sub-s (2) otiose. In Grain Elevators Board (Vic) v Shire of Dunmunkle [1946] HCA 13; 73 CLR 70 the High Court considered whether the land acquired by the Board within the Shire was Crown land for the purposes of an exemption from rating under the Local Government Act 1928 (Vic). There were various statutory indications that the Board was not an emanation of the Crown, but an independent corporation. Consistently with that conclusion, it was expressly protected from income tax. However, there was no express exemption from council rates. Three months after the rate under challenge was struck, an amendment to the Board's legislation gave limited exemption from rates for some (but not all) land owned by the Board. Noting that provision, Dixon J stated at 86: "Although the provision was passed too late to apply to the present case, I think that it may be considered on the question of interpretation. It would be a strange result if we were to interpret the prior legislation as giving a wider exemption than that conferred by the provision so that the express exemption it makes would prove unnecessary and the qualifications it places upon that exemption would be futile." 25Acknowledging that that might be a factor to be considered, there was no suggestion that it would be definitive and there may well be cases where it is tolerably clear that the legislature has acted on a mistaken assumption as to the pre-existing law. In any event, it is one thing to look to the terms of a later statute to obtain assistance in construing an earlier statute when the words of the earlier statute are ambiguous (see Allina Pty Ltd v Commissioner of Taxation (1991) 28 FCR 203 at 212 (Lockhart, Burchett and Gummow JJ)); it is a different exercise to look to the terms of the earlier statute to resolve an ambiguity in the later statute. 26In the present case, to conclude that the terms of the current statute should be given their ordinary meaning is not to create a futility in the sense identified in Dunmunkle, and by the minority in Hilton v Wells. That is because the definition of "court" includes authorities and persons, so that there will clearly be "courts" in the expanded sense which do fall within the language of sub-s (1). The effect of sub-s (2) is thus to exclude those additional authorities and persons, who would otherwise be covered by sub-s (1), but only in the circumstances provided in sub-s (2). The consequence of the proposed construction is not to render sub-s (2) futile or otiose. 27The contrary view, relied on by the Commonwealth, would either require the reversal of the repeal of sub-s (3), or would require the insertion of language which has been omitted, not through oversight, but through some other kind of mistake. One possibility would be to insert the words "or court" after "any person" in sub-s (1). However, given the uncertainty as to precisely what was intended by the legislature, accepting that the repeal of sub-s (3) was deliberate, there is a real difficulty in undertaking that exercise in rewriting: see R v Young [1999] NSWCCA 166; 46 NSWLR 681; Taylor v Centennial Newstan Pty Ltd [2009] NSWCA 276; 76 NSWLR 379 at [51]-[53] (Beazley JA); [83] (Giles JA); [89]-[92] (in my reasons). 28There is a further concern in construing s 135A in the way proposed by the Commonwealth. The certificate from the trial judge granting leave to appeal accepted that setting aside the subpoena "has potential implications for the fairness of the accused's criminal trial". How serious those implications may be is not known. Nor is the consequence in this case a guide to the proper construction of the section. However, the balance to be drawn between protecting the privacy of persons making claims on Medicare and the interests of those involved in litigation, whether as parties or not, involves policy choices beyond the function of a court construing legislation. In one case, disclosure could involve a serious intrusion on the privacy of individuals who are not parties to litigation, with very limited benefits to the administration of justice; in another case, relatively minor intrusions on the privacy of a person who is not a party to litigation could have serious repercussions for the fairness of an accused facing a criminal trial and possibly a lengthy sentence of imprisonment. On one view, such balancing exercises cannot readily be reflected in a general legislative provision, and are best resolved by a trial judge. That approach would allow for production of documents to the court, with the trial judge determining the rights of the parties to obtain access and ruling on the admissibility of such documents in evidence. However, that itself is a policy conclusion and not one to which this Court can give effect in 'construing' s 135A, but rather a form of judicial legislation. Indirect disclosure 29The alternative basis for setting aside the subpoena relied upon by the proposition that even if production to a court was not within the term "divulge or communicate to any person", nevertheless the effect of production to a court might well be that the material would be released to the parties to the proceedings and might, if admissible, be tendered in evidence. On that view, production to a court would "indirectly" involve disclosure to a "person". 30The applicant submitted that, if such a construction were to be accepted, the present objection was premature. The Commonwealth responded that, because the objection must necessarily succeed if made when access was sought to the documents, it was not correct to say that it was premature. 31There are two other bases for rejecting the Commonwealth's argument. First, whatever might fall within the scope of indirect, as compared with direct, disclosure (a distinction which might turn upon the mechanism for disclosure, rather than the identity of the recipient) disclosure which was not merely authorised but compelled (such as by court process) could not properly be treated as an indirect means of unauthorised disclosure when that required the exercise of a power by the Court, for which the proper officer would in no relevant sense be responsible. On that approach, which should be accepted, there was neither direct nor indirect disclosure to any "person" when documents were produced in answer to a subpoena by a court (in the ordinary sense of that term). 32Secondly, the phrase "directly or indirectly" appeared in equivalent legislation discussed in earlier authority, including the seminal reasoning of Dixon CJ in Canadian Pacific. It would not be open to this Court to decline to follow a High Court judgment on this basis.

Conclusions 33It follows that, giving effect to the statutory provisions in their own terms, the following conclusions should be reached: (a) the language of s 135A(1), "divulge or communicate to any person" does not cover production pursuant to a summons or subpoena to a court, in the ordinary meaning of the word "court"; (b) the prohibition in sub-s (1) may include some persons or bodies constituting a court within the extended definition of the word "court" in sub-s (24) but the District Court of New South Wales is not one of those bodies; (c) the potential anomalies flowing from the limited exclusion from the prohibition in sub-s (1) with respect to persons who are party to an action or proceedings before a "court" (in the broad defined sense) do not permit the conclusion that - (i) the word "person" in sub-s (1) should be read as "person or court" (in the ordinary sense of that term); or (ii) an implied constraint is imposed on production of information to a court (in the ordinary sense of that term) in circumstances other than those prescribed in sub-s (2); (d) the subpoena to the proper officer, Medicare, did not require the proper officer to contravene the prohibition in s 135A(1) of the National Health Act; (e) accordingly, the subpoena should not have been set aside on that ground. 34The appeal should be allowed and the following orders made: (1) Allow the appeal from the judgment of Lerve DCJ delivered on 21 August 2013 on the notice of motion filed on 18 April 2013. (2) Set aside the order made in the District Court setting aside the subpoena issued on behalf of the applicant to the Proper Officer, Medicare Australia. (3) In lieu thereof, order that the motion filed on 18 April 2013 be dismissed. 35Neither party sought costs in the proceedings and, accordingly, there should be no order as to costs. 36HIDDEN J: I agree with Basten JA. 37RS HULME AJ: I agree with Basten JA.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 February 2014