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22Thirdly, although the new section repealed and replaced the old, it maintained much of the old and may properly be viewed as a form of amending provision.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.