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Court of Criminal Appeal 27 February 2014

Osborne v R

[2014] NSWCCA 17

Public order & justice offences
APPEAL CRIMINAL INTERLOCUTORY APPEAL INTERLOCUTORY APPEAL LEGISLATIVE HISTORY "ANY PERSON"

Citation: Osborne v R [2014] NSWCCA 17
Court: Court of Criminal Appeal, New South Wales
Date: 27 February 2014
Judge(s): Basten JA; Hidden J; RS Hulme AJ

Background

The applicant faced trial in the District Court at Dubbo on charges of break and enter and stealing, with the allegedly stolen items including a Medicare card. His solicitor issued a subpoena to the proper officer of Medicare Australia, seeking production of the victims' claims history under the Pharmaceutical Benefits Scheme.

The proper officer applied to have the subpoena set aside, arguing that producing the records would contravene the secrecy provision in s 135A of the National Health Act 1953 (Cth). The District Court (Lerve DCJ) agreed and set aside the subpoena on 21 August 2013.

The primary judge then certified the decision as appropriate for determination by the Court of Criminal Appeal under s 5F(3)(b) of the Criminal Appeal Act 1912 (NSW), noting the potential impact on trial fairness and that the operation of s 135A raised arguable points of law.

  • Whether the prohibition in s 135A(1) of the National Health Act on divulging or communicating information "to any person" extends to production of documents to a court pursuant to a subpoena.
  • Whether the limited exception in s 135A(2) (permitting disclosure to a court where the third person is a party to the proceedings) implies, by negative implication, that s 135A(1) otherwise prohibits disclosure to courts.
  • Whether the extended definition of "court" in s 135A(24), which includes tribunals and authorities with power to require production of documents, brought the District Court within the prohibition.

Decision

Basten JA (with Hidden J and RS Hulme AJ agreeing) allowed the appeal. The central question was whether "any person" in s 135A(1) encompasses a court. Drawing on a long line of High Court authority, the Court confirmed that the ordinary meaning of "person" does not include a court. Dixon CJ in Canadian Pacific Tobacco Co Ltd v Stapleton (1952) 86 CLR 1 had reached the same conclusion on analogous taxation secrecy language, and both the majority and minority in Hilton v Wells (1985) 157 CLR 57 accepted the same approach in the context of the Telecommunications (Interception) Act 1979 (Cth).

The Court addressed the argument that s 135A(2), which permits disclosure to a court where the third person is a party to the proceedings, implied by negative inference that s 135A(1) must have covered courts all along. The Court rejected this reasoning. Consistent with the authorities, the better explanation was that s 135A(2) had its own purpose and did not convert the word "person" in s 135A(1) into something broader. Legislative oversight, or the drafting of complementary provisions for other purposes, was a more plausible explanation than attributing to Parliament an intent to bind courts without saying so.

The extended definition of "court" in s 135A(24), which includes tribunals and authorities with power to require production of documents, did not assist the proper officer's case. That definition operates within provisions of the section that use the defined term "court." It does not widen the meaning of "person" in s 135A(1). The District Court of New South Wales is a court in the ordinary sense and is not brought within the s 135A(1) prohibition by that extended definition.

Accordingly, producing documents in response to the subpoena would not have required the proper officer to contravene s 135A(1), and the subpoena should not have been set aside on that ground.

Orders Made

  • The appeal from the judgment of Lerve DCJ of 21 August 2013 was allowed.
  • The order setting aside the subpoena issued to the Proper Officer, Medicare Australia was set aside.
  • In its place, the notice of motion filed on 18 April 2013 (seeking to set aside the subpoena) was dismissed.
  • No order as to costs.

Key Takeaways

  • A statutory prohibition on divulging or communicating information "to any person" does not, in its ordinary meaning, extend to production of documents to a court in response to a subpoena. This principle has been consistently applied in Australian courts from the High Court downwards.
  • The existence of a limited exception in s 135A(2) permitting disclosure to a court where the relevant third person is a party to the proceedings does not, by negative implication, enlarge the word "person" in s 135A(1) to encompass courts generally.
  • Under s 135A(24) of the National Health Act, the extended definition of "court" (including tribunals and authorities with power to compel production) operates only within provisions that use the defined term. It does not transform the word "person" in s 135A(1) into a broader concept.
  • The District Court of New South Wales is a court in the ordinary sense of that word and falls outside the s 135A(1) prohibition on disclosing information to a "person."
  • Interlocutory appeals under s 5F of the Criminal Appeal Act 1912 (NSW) may be certified by the primary judge, but the Court of Criminal Appeal has noted a preference that the appropriateness of such appeals ordinarily be assessed by the appellate court itself unless the primary judge has particular knowledge not apparent from the impugned decision.

Legislation and Cases Referenced

Legislation
- National Health Act 1953 (Cth), ss 82ZF, 135A
- Criminal Appeal Act 1912 (NSW), s 5F
- Health Legislation Amendment Act (No 2) 1983 (Cth)
- Income Tax and Social Services Contribution Act 1936 (Cth), s 16
- Telecommunications (Interception) Act 1979 (Cth), ss 7, 63

Cases
- Canadian Pacific Tobacco Co Ltd v Stapleton [1952] HCA 32; 86 CLR 1
- Hilton v Wells [1985] HCA 16; 157 CLR 57
- Miller v Miller [1978] HCA 44; 141 CLR 269
- John Fairfax Publications Pty Ltd v Doe (1994) 37 NSWLR 81
- Attorney General (NSW) v Lipton [2012] NSWCCA 156
- R v Young [1999] NSWCCA 166; 46 NSWLR 681
- Taylor v Centennial Newstan Pty Ltd [2009] NSWCA 276; 76 NSWLR 379
- Kizon v Palmer (1997) 72 FCR 409
- Allina Pty Ltd v Commissioner of Taxation (1991) 28 FCR 203
- Commissioner of Taxation v Nestle Australia Ltd (1985) 12 FCR 257
- Grain Elevators Board (Vic) v Shire of Dunmunkle [1946] HCA 13; 73 CLR 70