Paul Smith, the political editor of Australian Doctor magazine, has been investigating the Australian Crime Commission’s operations in NT Indigenous communities:

Last month the Australian Crime Commission – usually tagged by journalists as the nation’s most powerful crime fighting body – fell foul of the law for the second time in the space of eight weeks. At issue was an aspect of its “special intelligence” operation into child abuse and domestic violence in NT’s indigenous communities.

As those of you who have been following the saga know, the commission has been using its coercive powers to get hold of patient records. Much of it was going on in secret, with those targeted by the ACC silenced by
the use of various gagging orders employed by the commission. The only reason we now know about, is that two Aboriginal health clinics when approached by the ACC refused to hand over all the records demanded,
opting to seek the protection of the courts.

The Federal Court handed down its judgement on the appeal by the first clinic (referred to as NTD8 in the court transcripts) in October. The judgement on the second clinic (NTD9) came out at the end of the
November. In both cases it ruled the commission had failed to take the interests of the children as its primary consideration in wanting to seize the records and therefore the commission was in breach of
Australia’s obligations under the UN Convention on the Rights of the Child.

There remain many unanswered questions principally because those ACC gagging orders are still in force, preventing the doctors and managements of the clinics from talking about the case in public.

First of all we don’t know how many other clinics were also approached by the ACC during its special operation. There have been rumours that it’s been more than 20. But because no-one is talking, we don’t know how many of these clinics capitulated under threats of imprisonment. Presumably, if the ACC has seized the files of other children using the same legal notices it employed at the two clinics that went to the
Federal Court, there are good grounds for saying the ACC probably has in its possession quite a lot of illegally-obtained material relating to patients who have yet to be told that much of their intimate medical
history has been trawled through by ACC officers.

Under the ACC’s gagging powers, the management at those clinics (which may have been approached) would also face imprisonment or fines if they reveal the truth. In fact, they face imprisonment or fines for simply
acknowledging they had been issued with notices by the ACC. This causes some absurdities. When Australian Doctor asked the NT government last month to say if its clinics had been told to hand over records by the ACC, it said after consulting its lawyers that legally it could not
answer the question. Take that as a “yes” then.

There are important reminders worth making for anyone who thinks this story is simply about bloody minded doctors undermining attempts by the commission to bring perpetrators of child abuse to justice.

The ACC says it has not sought these records to investigate any specific crime, abuse or act of violence against a child or anyone else. The ACC has said it wants the medical records (and this applies to the records
of adult patients as well as those of child patients) to create a picture of the extent of abuse in Aboriginal communities.

It told the Australian’s Paul Toohey in October: “The reason we want access to the data not just on Implanon but more widely on STIs, violence and sexual abuse is to build a better understanding of the
nature and extent of issues surrounding sexual abuse and underage sexual activity, assault, violence and related injuries.

“There’s little evidence-based understanding at a regional, state or national level of what’s occurring within those communities because the data in relation to underage sexual activity, abuse and violence is
often not disclosed in detail beyond the health provider. This prevents governments from developing a comprehensive understanding of the issues and may result in funding solutions and interventions being developed based on incomplete or inaccurate data.”

The identities of these children – their names, addresses and information about treatments and their medical conditions – were needed because the ACC is trying to “track how children, who are in crisis,
move between different systems” – for instance, the police system, the education system and, say, Family and Community Services.

The legal battle between the ACC and the clinic NTD9 came about precisely because the clinic’s doctors judged that the patients (both children and adults) were not in crisis. Routinely handing over records
to federal crime investigators, when the patients were not at risk, would, if it ever became known, destroy the trust the patients had in the clinic. Dr John Boffa, a GP at the clinic, warned in a written
affidavit to the Federal Court of a public health disaster if patients stopped attending.

The clinic offered what appears to be a sensible compromise: allow an independent third party made up of doctors to go through its records. If the third party thought specific children/adults were at risk, then the
clinic would hand over the records to the ACC or the police. In that way patient confidentiality (and patient trust in the clinic) would be protected.

The ACC has yet to explain why but the offer was never taken up.

The ACC’s declared aim to track the way individuals track across “different systems” seems very far removed from its image as the nation’s most powerful crime fighting agency. Does this job require
steamrolling through patients’ privacy rights to confidentiality; for the commission’s use of its extensive powers of secrecy and coercion? Is it necessary for doing all this to be done behind the backs of patients
and their families in communities already distrustful of policing and government?

Clearly the methodology concerned John Reeves, the Federal Court judge who ruled on the case of NTD9 last month.

He wrote in that judgment: “Given the very personal nature of the medical records sought it is not difficult to see that the disclosure of information of this kind could cause acute embarrassment to the Aboriginal children concerned and may have implications for their relationships with other persons.

“I should add that the ACC’s answer that they will be protected because this invasion of their interests is to be kept confidential does not in my view make it any more acceptable. After all, medical records in
general, let alone those dealing with a person’s sexual health or activities, are generally among the most personal about an individual.”

He went on to rule the ACC was breaching its legal duty to take the interests of the children as its primary interest in obtaining the records.

But he said he had no basis on which to prevent the adult records being seized by the ACC. That is interesting. It raises this question: surely if the disclosure of intimate information causes acute embarrassment for Aboriginal children, should the disclosure of “intimate information” of
Aboriginal adults be treated differently under the law?

The clinic is expected to appeal to the High Court.

All these issues are likely to run. The declaration that the ACC has been acting illegally is sufficiently alarming to suggest the commission needs to be held to public account. Clearly, with the amount of secrecy
surrounding the ACC which has silenced the people running health services in the NT from speaking out, that is not being done through the normal media channels. Politicians, there to represent the public
interest, including the interests of Aboriginal communities, need to start asking questions and hold the ACC to some form of public account.

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