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The latest on the Australian Crime Commission’s invasion of medical records and patient privacy

Paul Smith, political editor at Australian Doctor, has been following the story of the Australian Crime Commission’s seizure of medical records of Aboriginal people in the NT for some time.

Here is his latest update:

“It’s taken some of Australia’s finest legal minds, but after two years of deliberation the result is clear-cut. The Australian Crime Commission — the clandestine organisation set up to do battle with organised crime — can legally seize the medical records of Aboriginal children and adults in the NT.

This applies not just to those thought to be victims or perpetrators of a specific crime. In theory this could involve the medical records of any Aboriginal patient considered relevant to the ACC’s mission to understand “issues surrounding violence and child abuse in Indigenous communities”. That’s a wide remit for any investigation and shows the extent of the commission’s reach into private lives.

Yet read through the latest Full Federal Court ruling and you would be hard pressed to see what all the fuss is about.

The Federal Court judges do acknowledge that “to obtain documents by compulsion intrudes upon a person’s entitlement to keep his or her documents private and confidential — a concern that is particularly acute in a case such as this where those documents are of a very personal and sensitive character”.

But that is one line in 27 pages of legal prose, which, when stripped of its subtleties, comes down to little more than a mundane debate about whether the bloke at the ACC drawing up his plan to “obtain documents by compulsion” did the proper paperwork; whether, in putting his name to the orders, he did — as a matter of fact — consider the likely impact of what he was doing on the clinic’s patients. Well, the court found out that, yes, he did. Not, by the look of things, with much thought, but he had a go.

The finding left untouched the larger question: whether it is a fair trade to betray patients’ expectations that the state is not rummaging through their medical histories so that, according to the ACC, the Federal Government can “build a better understanding of the nature and extent of issues surrounding sexual abuse and underage sexual activity, assault, violence and related injuries”.

The doctors and clinic managers who have some understanding of the people the ACC was targeting thought not.

What is again worth stressing is that none of what the ACC was up to would have become public without the clinics seeking the protection of the courts.

It’s another area on which the Federal Court judgement is silent but basic rights to privacy were being binned behind locked doors — no one was allowed to be told of what was taking place, least of all the affected Indigenous communities. In light of the legally sanctioned gagging orders, the threat of fines and jail time for those who would have spoken out, it was never intended to allow public discussion of what was taking place.

The powers given to the ACC were concocted by the politicians in Federal Parliament. Their use in Aboriginal communities as part of the NT intervention was approved by the ACC’s board. It’s resulted in the worst sort of self-serving paternalism that deliberately keeps Aboriginal communities and wider society ignorant and, for the authorities who know what has been happening, conveniently mute.

The clinics will hand over the records — quietly — unless they can find a strong legal basis for another appeal. There probably isn’t one. Conversations with a few people connected with the cases suggest the clinics believe they have come to the end of the road. This is a political issue now.

No one knows for certain how far this goes — how many other clinics in the NT complied when the ACC came knocking. Nor do we know how many medical records the ACC has collected, or what all this information has done to help track down abusers.

Last year the crime commission chief John Lawler admitted his agency’s investigation had found there was no “organised pedophilia” in indigenous communities.

The ACC activities in the NT will no doubt return to the shadows following the court’s rulings. And those activities will probably continue until the funding for the commission’s operation ends in June. There are many critics both within and without the commission who believe that it should return to its core business of using its extraordinary powers fighting organised crime – critics who include Senator Steve Hutchins, who chairs the parliamentary committee, which oversees the ACC.

Whatever the final decision on the future of the commission’s special operation – a decision for the Rudd government – there are still many questions left behind about the rights and wrongs of what happen. All are deserving of answers – even if the legal system doesn’t seem able to provide them.”

• This is an edited version of an article which appears in Australian Doctor.

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