The submissions of the respondent
26 The respondent submitted that each of the two doctors formed his opinion and prepared his report on the basis of having reviewed the respondent's medical records together with material relating (inter alia) to medical facilities on Nauru.
27 The respondent submitted the primary judge did not err in rejecting the construction for which the appellant contended, namely that s 198E(7)(b) required "personal interaction or engagement with the [transitory person] in the conduct of the assessment". The construction adopted by the primary judge was supported by the statutory text, context and purpose, the appellant submitted, which provided no basis for reading the words "assessed either remotely or in person" as meaning assessed either in person or remotely "as though in person".
28 The respondent submitted that if the Minister refused based on the condition in s 198E(4)(a) - he reasonably believed that it was not necessary to remove the person for "appropriate medical or psychiatric assessment or treatment" - he must notify the IHAP as soon as practicable (s 198F(1)).
29 The IHAP was established by s 199A. It consists of the persons set out in s 199B: the Chief Medical Officer of the Department and the Surgeon-General of the Australian Border Force, the Commonwealth Chief Medical Officer, and six or more persons including nominees of medical associations. Upon the Minister's notification, the IHAP must, as soon as practicable and within 72 hours, "conduct a further clinical assessment", whether in person or remotely (s 198F(2)(a)), and inform the Minister of its recommendation. It must recommend either confirmation of the refusal, or approval of the transfer (s 198F(2)(b)). If it is to approve, the Minister must do so as soon as practicable and within 24 hours (s 198F(4), (4A)), unless satisfied in relation to national security or criminality (s 198F(5)).
30 After approval, an officer must, as soon as practicable, bring the person to Australia for the temporary purpose of medical or psychiatric assessment or treatment (s 198C(2)).
31 It was plain from their reports, the respondent submitted, that each doctor "evaluated" or "judged" the respondent, and more particularly his medical circumstances, on the basis of having reviewed medical records relating to him, and each expressed his opinion on the basis of having done so.
32 Nothing in the ordinary meaning of the word "assess" favoured a narrow interpretation, such as would restrict an assessment to one following consultation either in person or by telephone or video conference, the respondent submitted. A narrow construction would require additional words to be read into s 198E(7)(b). It would require not only that a doctor "assess" a person, but that he or she "consult personally with" the person. In so far as the appellant sought to rely on medical dictionaries, the respondent submitted that this belied the fact that the word "assessed" may be given its ordinary meaning. If the appellant sought to rely on any specialist or technical meaning of "assessed" in the medical context, the respondent submitted that this meaning should have been established by way of expert evidence. In fact, the respondent submitted, the only expert evidence before the primary judge, which was unchallenged by the appellant, was to the effect that clinical assessments were able to be carried out without any direct personal interaction or engagement with the person whose medical condition and treatment were assessed.
33 The opinions required to be expressed in order for a person to be a "relevant transitory person" were stipulated in s 198E(2)(b), the respondent submitted. There was thus a teleological link between the "assessment" required by s 198E(7) and the s 198E(2)(b) opinions. The respondent submitted that medical practitioners "assess", within the meaning of s 198E(7), for the purpose of enabling them to form and express the opinions in s 198E(2)(b).
34 The opinions required by s 198E(2)(b) were informative in two ways, the respondent submitted. First, it was not necessary that the practitioner express a view that treatment was required; it sufficed that he or she expressed a view that assessment was required. Second, the opinions to be expressed involved an evaluation of the availability of the required assessment or treatment in the regional processing country and elsewhere. This involved a wide range of considerations that were not confined to personal observations about the particular transitory person.
35 The kinds of opinions required by s 198E(2)(b) were capable of expression by reference to an evaluation and review of medical records in relation to the transitory person, the respondent submitted. He submitted that such records might be far more informative than a cursory physical examination or interview conducted with the transitory person, and might include the evaluation and review of x-rays or other medical imaging or the results of pathology tests, together with detailed medical notes. In some cases, it might be necessary or appropriate to form an opinion "on the papers", including situations in which the transitory person is unconscious or incapable of attending or participating in any personal consultation with the medical practitioner.
36 The respondent submitted that the appellant's construction would have the result that, even where it was unnecessary or even counterproductive for there to be personal consultation or interaction between the transitory person and the medical practitioner, such an interaction was invariably required. This ran contrary to common sense, and was not an intention that should be attributed to the legislature, the respondent submitted.
37 The respondent submitted that the expression of the requisite opinions under s 198E(2) was the "gateway" to, or the beginning of, the Medevac process. The notification under s 198E(1) did not irrevocably lead to transfer. The Minister could form a different view of the medical position, leading to review and a "further clinical assessment" by the IHAP. In this context, there was no reason to stretch language to construct a barrier to the initial assessment by the treating doctors. Further, as the primary judge found at [51], any requirement of personal consultation would be potentially arbitrary, in so far as it would cover a cursory assessment by a general practitioner who had the briefest of consultations with the transitory person, but exclude an opinion given by a specialist medical practitioner set out in a detailed report following a review and evaluation of complete medical records.
38 The respondent submitted that the Medevac Provisions were intended to address a worsening medical crisis by putting medical decisions in the hands of doctors rather than bureaucrats, and by creating a process for orderly (rather than litigious) claims for urgent medical treatment by transitory persons. The respondent submitted an interpretation of the Medevac Provisions that best achieved these purposes was to be preferred to any other interpretation. These purposes were properly to be regarded as remedial and beneficial, the respondent submitted, referring to the reasons of the primary judge at [49], so that a generous, fair, liberal, and large interpretation was appropriate.
39 The respondent accepted that, by implication from s 198F(2)(a), the assessment under s 198E(7)(b) must be a "clinical" assessment, and that the ordinary meaning of "clinical" denotes the "observation and treatment of diseases in patients, rather than artificial, theoretical or laboratory studies". This did not assist the appellant, the respondent submitted, as the assessments of Dr Dudley and Dr Manovel, and their opinions, were clinical in that sense. They related to a particular patient. They were not artificial or theoretical. They were not laboratory studies. They involved the "study of actual patients" - the respondent - rather than pathology or laboratory work, the respondent submitted.
40 The respondent submitted that the primary judge did not find that the only point of distinction between the alternatives of an assessment conducted "remotely or in person" was whether or not the medical practitioner and the transitory person were co-located or distant. Rather, the respondent submitted, the primary judge found that the required assessment may be conducted with or without the co-location of the assessor and the transitory person, that is, in person or not in person, referring to the reasons of the primary judge at [31]-[32]. In particular, the respondent submitted, the primary judge expressly (and correctly) rejected the appellant's contention that a "remote" assessment was required to share the characteristics of an assessment in person (or the "in-person gold standard" as put by the appellant below).
41 The respondent submitted that there was no absurdity in regarding a review conducted by a doctor located in the same hospital as an "assessment", whether or not that doctor had a personal consultation with the patient. For example, the respondent submitted, an x-ray or other test results might be referred to a surgeon or other specialist for a clinical opinion as to what treatment or assessment is required. The example of an academic review of medical cases was inapt, the respondent submitted, as the doctors in that context would not review the medical reports for the purposes of expressing clinical opinions about the medical treatment required by a particular person.
42 The respondent submitted that the appellant accepted as "descriptively accurate" the primary judge's finding that many assessments are capable of being done on the papers (eg, examining x-rays or biological tests), and noted that the appellant went on to say that this is "beside the point" because, "[l]egislation often draws lines, and the interpretive task is to identify where s 198E draws its lines." The respondent submitted that in drawing the lines of which the appellant spoke, the primary judge was clearly entitled to take into account the consequences of adopting the appellant's construction. If it was "descriptively accurate" that many assessments can be done "on the papers", it would be capricious and inconvenient for the legislature to exclude such assessments from initiating the Medevac process, the respondent submitted.
43 The primary judge precisely identified the purpose of s 198E(7)(b), the respondent submitted, referring especially to [20] and [44] of his reasons. The respondent submitted that the primary judge was correct to identify that the Medevac Provisions had an "obvious" beneficial purpose, and to have regard to that purpose in interpreting and applying s 198E(7)(b).
44 The respondent submitted that in particular, and contrary to the appellant's submission, the primary judge did not say that a line drawn by the Parliament lacked common sense; rather, he found that the appellant's construction lacked common sense, and thus declined to ascribe it to the Parliament. Such an approach was orthodox, the respondent submitted.
45 In ascertaining the meaning of s 198E(7)(b), the respondent submitted that it was not permissible to have regard to the defined term ("treating doctor") in construing the definition itself. The respondent submitted that it was held in Owners of the Ship "Shin Kobe Maru" v Empire Shipping Co Inc [1994] HCA 54; 181 CLR 404, at 419, that it was impermissible "to construe the words of a definition by reference to the term defined", and that the continuing authority of that case has been confirmed in Minister for Immigration and Border Protection v WZAPN [2015] HCA 22; 254 CLR 610 at [48]. The respondent submitted that this line of authority was binding on this Court. The primary judge did not treat that principle in Shin Kobe Maru as essential to the rejection of the appellant's construction of s 198E(7)(b), the respondent submitted, referring to the reasons for judgment at [54]. On the contrary, the respondent submitted, the primary judge assumed in the appellant's favour that it was permissible to use the term "treating doctor" as a contextual indication of the nature of the requisite assessment, referring to the reasons of the primary judge at [35]. Accordingly, the respondent submitted, this was not a basis on which to find error in his Honour's reasoning.