Australian Crime Commission v NTD8

Case [2009] FCAFC 86

FEDERAL COURT OF AUSTRALIA

Australian Crime Commission v NTD8 [2009] FCAFC 86

ADMINISTRATIVE LAW – Australian Crime Commission Examiner issued notice to health services provider requiring production of medical records of eight female Aboriginal children pursuant to s 29(1)(b) Australian Crime Commission Act 2002 (Cth) – whether the best interests of those eight children was a relevant consideration which the Examiner was required to take into account in issuing that notice – whether the Examiner had regard to the best interests of those eight children – consideration of whether the best interests of those children was a “primary consideration”

Acts Interpretation Act 1901 (Cth) s 15

Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5(1)(e), 5(2)(b)
Australian Crime Commission Act 2002 (Cth) ss 4, 7, 7A, 7C, 28, 29, 29A, 46B

Convention on the Rights of the Child Article 3.1

Families, Community Services and Indigenous Affairs and Other Legislation Amendment (Northern Territory National Emergency Response and Other Measures) Act 2007 (Cth)

A.B. Pty Limited v Australian Crime Commission (2009) 107 ALD 591 discussed
Al-Kateb v Godwin (2004) 219 CLR 562 distinguished
Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 cited
Commissioner of Stamps (SA) v Telegraph Investment Co Pty Ltd (1995) 184 CLR 453 cited
Commissioner of Taxation v Citibank Ltd (1989) 20 FCR 403 cited
Deputy Commissioner of Taxation v Saunig (2002) 55 NSWLR 722 cited
Foster v Minister for Customs and Justice (2000) 200 CLR 442 cited
Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 cited
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 cited
Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 discussed
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 cited
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 cited
Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1 cited
Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566 cited
Oates v Attorney-General (Cth) (2003) 214 CLR 496 distinguished
Polites v The Commonwealth (1945) 70 CLR 60 cited
Re Woolley (2004) 225 CLR 1 distinguished
Sweeney v Fitzhardinge (1906) 4 CLR 716 cited
Waters v Public Transport Corporation (1991) 173 CLR 349 discussed

AUSTRALIAN CRIME COMMISSION and JEFFREY PHILIP ANDERSON v NTD8

NTD 20 of 2008

BLACK CJ, MANSFIELD J & BENNETT J
10 JULY 2009
ADELAIDE (HEARD IN DARWIN)


IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY

GENERAL DIVISION

NTD 20 of 2008
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:

AUSTRALIAN CRIME COMMISSION
First Appellant

JEFFREY PHILIP ANDERSON
Second Appellant
AND:

NTD8
Respondent

JUDGE:

BLACK CJ, MANSFIELD J & BENNETT J

DATE OF ORDER:

10 JULY 2009

WHERE MADE:

ADELAIDE (HEARD IN DARWIN)

THE COURT ORDERS THAT:

1.The appeal be allowed.

2.The orders of the Court made on 17 October 2008 be set aside.

3.The appellants file and serve within 14 days and the…

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AGLC
Australian Crime Commission v NTD8 [2009] FCAFC 86
Case
[2009] FCAFC 86
Decision Date

CaseChat Overview and Summary

The appeal concerns the validity of a notice issued under the Australian Crime Commission Act 2002 (ACC Act) requiring the production of certain information. The appellants, the Australian Crime Commission (ACC) and the Chief Examiner of the ACC, sought to set aside a decision of the primary judge which found that the notice should have been set aside. The respondent, NTD8, is a non-government organisation providing medical services to Indigenous women and children. NTD8 argued that the notice should be set aside as it would require them to disclose information concerning eight female Aboriginal children, which could dissuade them and others from seeking medical attention.

The primary issue before the court was whether the Chief Examiner was required by law to take into account the concerns of NTD8 and the potential effect on the children when making the assessment under s 29(1A) of the ACC Act. The court held that the Chief Examiner was indeed required to consider these factors, as they were relevant to the satisfaction to be reached under s 29(1A) of the ACC Act. Although the Examiner’s reasons were laconic and formulaic, it was clear that he had considered NTD8’s concerns about the potential deterrent effect on seeking medical attention when making the assessment.

The court further held that it was not for the Court to substitute its assessment of the reasonableness of the Chief Examiner's satisfaction for that of the Examiner. The court found that there was no submission on behalf of NTD8 that the satisfaction of the Examiner, having considered the relevant matters, was so unreasonable that it could not have been reached. The court concluded that the appeal should be allowed, and the orders of the primary judge should be set aside. The parties were given liberty to make written submissions as to the costs of the appeal and the proceedings at first instance, considering the significant nature of the issues and the extent to which each party had succeeded.

Orders

Orders of the court

1. The appeal be allowed.

2. The orders of the Court made on 17 October 2008 be set aside.

3. The appellants file and serve within 14 days and the respondent file and serve within a further 14 days any submissions as to the costs of the appeal and of the hearing at first instance, to the intent that the Court will determine such costs upon the written submissions of the parties.

Note:

Background

Background to the litigation

In short, the appeal concerns whether the notice under the ACC Act requiring the production of that information should have been set aside.BACKGROUND It is helpful to refer to the background to the Examiner’s decision. The ACC is established under s 7 of the ACC Act. On 26 June 2006, there was held an Intergovernmental Summit on Violence and Child Abuse in Indigenous Communities. It led on 13 July 2006 to the establishment by the ACC of the National Indigenous Violence and Child Abuse Intelligence Task Force (NIITF). Under the NIITF, the ACC set about gathering and coordinating information to enhance the understanding of the nature and extent of violence and abuse in Indigenous communities. That process was then not supported by the coercive powers available to the ACC under the ACC Act. In June 2007, the “Little Children are Sacred Report”, commissioned by the Northern Territory Government, was published. It too highlighted the problems of violence and abuse in Indigenous communities. Following the publication of that Report, the Commonwealth Government decided to establish the Northern Territory Emergency Response, commonly known as the Northern Territory Intervention or the Intervention, to deal with the incidence of child abuse and domestic violence in remote Indigenous communities in the Northern Territory. It was recognised that the ACC did not have available the coercive powers under the ACC Act to support its work. It was necessary to amend the ACC Act. That was achieved by the Families, Community Services and Indigenous Affairs and Other Legislation Amendment (Northern Territory National Emergency Response and Other Measures) Act 2007 (Cth) (the Amending Act). By the Amending Act, s 4(1) of the ACC Act was amended to include definitions of “child”, “child abuse”, “Indigenous person” and “Indigenous violence or child abuse”. The term “federally relevant criminal activity” was redefined by reference to the term “relevant crime” and the term “relevant crime” was defined (and variously used in the ACC Act) to include both “serious and organised crime” (the previous ambit of the ACC Act) and “Indigenous violence or child abuse”. The term “Indigenous violence or child abuse” was defined to mean “serious violence or child abuse committed by or against, or involving, an Indigenous person; and “serious violence” was defined to mean “an offence involving violence against a person (including a child) that is punishable by imprisonment for a period of 3 years or more”. On 5 February 2008, the Board of the ACC authorised and determined under s 7C of the ACC Act that it conduct a special intelligence operation into Indigenous violence or child abuse: Australian Crime Commission Special Intelligence Operation Authorisation and Determination (Indigenous Violence or Child Abuse) 2008 (the Determination). Sections 7A(c) and 7C(1)(c) and (3) predicate the power to make such a determination upon the existence of federally relevant criminal activity.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

BLACK CJ, MANSFIELD J
The Examiner’s reasons, as we have noted, are laconic, formulaic and often unhelpful. They appear to tick boxes. The Statement of Facts and Circumstances was uninformative. If the relevant officer had wished to draw to the Examiner’s attention the matters of concern to NTD8 and its staff, the notice he or she prepared did not do so. It should have done so. It is not satisfactory (and quite possibly not sufficient) for the Examiner, later and independently of the written reasons prepared pursuant to s 29(1A), to assert that there were other matters taken into account which he did not record. However, the Legal Submissions in support do specifically refer to the concerns of NTD8 and its staff that the disclosure of the particular documents concerning the eight female Aboriginal children may dissuade them and others from seeking medical attention, albeit cursorily. The Examiner’s evidence then acknowledged specifically that he had taken into account the reasons why NTD8 did not wish to disclose the information sought about those eight children. That merely confirms what is readily inferred from his reference to his adoption of the Legal Submissions in his reasons. As a countervailing consideration, in making the assessment required by s 29(1A) the Examiner had access to the Determination and the details in the Statement of Facts and Circumstances. In making the assessment required by s 29(1A), the Examiner also had access to the Determination and the details in the Statement of Facts and Circumstances and, by having considered the Statement and having adopted the Legal Submissions does appear to have had regard to NTD8’s concerns. It is further confirmed by his later reference in his affidavit to the reasons for making the notation under s 29A(1), although as discussed earlier in these reasons the logic of his reasoning in that regard is not persuasive.CONCLUSION It follows that the first ground of the amended notice of appeal does not succeed; the Examiner was required by law to take into account the concerns of NTD8 and the effect on the children. As to the second ground, it was not established in the circumstances that the Examiner did fail to take account of those concerns. Accordingly, the appellants have succeeded in establishing the second ground of the amended notice of appeal. For those reasons, the appeal should be allowed. The order of the primary judge made on 17 October 2008 should be set aside. The parties should have liberty to make written submissions as to the costs of the appeal and of the proceedings at first instance, having regard to the significant nature of the issues and the extent to which they have each succeeded. The ACC and the Examiner should have 14 days to make such written submissions as they may be advised, and NTD8 should have a further 14 days within which to respond.

Ratio Decidendi

Legal Principle Established

Established by: BLACK CJ, MANSFIELD J

For the same reason, it is not necessary to construe s 29 of the ACC Act so that, in the absence of a contrary intention, it accords with Australia’s international obligations: Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 38 per Brennan (as he then was), Deane and Dawson JJ; Polites v The Commonwealth (1945) 70 CLR 60 at 68 per Latham CJ and at 77 per Dixon J. Indeed, in the present circumstances, such a contention would be somewhat circuitous. The Explanatory Memorandum says that the Amending Act is to give effect to the Convention (at least in the respects which it addresses), so the debate would then become one of policy, as to whether the Amending Act had done so effectively. On the other hand, it should be noted, s 29 is not so unambiguous or prescriptive as to exclude the construction which we have adopted for the reasons given. In that respect, it contrasts with the provisions addressed in Oates v Attorney-General (Cth) (2003) 214 CLR 496; Re Woolley (2004) 225 CLR 1; and Al-Kateb v Godwin (2004) 219 CLR 562.The considerations taken into account by the Examiner The task of the Examiner was, for the reasons given, to consider the interests of the eight female Aboriginal children and other children who might use the services of NTD8, because that was a consideration relevant to the satisfaction to be reached under s 29(1A) of the ACC Act. The Examiner’s reasons were complemented by his reference to the Statement of Facts and Circumstances, and the Legal Submissions. The effect of those two documents is set out above at [24]-[33]. It can properly be said, as was remarked at the commencement of these reasons, that there are conflicting considerations going to the best interests of those children. The Determination was directed to assembling information about Indigenous violence and child abuse, and identifying those involved in such conduct. At a higher level of abstraction, it is a tool in a process aimed at preventing such conduct. Obviously, such an objective is in the best interests of Indigenous children. On the other hand, to serve that objective involved identified risks of detriment to the eight female Aboriginal children concerned, and to other Indigenous young women who might now choose not to avail themselves of the services of NTD8, as discussed in [16]-[17] above. That matter was brought to the attention of the Examiner. The legal process required the Examiner to have regard to that last mentioned consideration. For the reasons given, it is not appropriate to measure whether sufficient weight was given to it. It is not for the Court to substitute its view of the weight to be given for that of the Examiner. It is, more accurately, not for the Court to substitute its assessment (or satisfaction) of whether it was reasonable in all the circumstances to issue the Notice, for the assessment or satisfaction of the Examiner: see the remarks of Brennan CJ, Toohey, McHugh and Gummow JJ in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 274-5. There was no submission on behalf of NTD8 that the satisfaction of the Examiner, having considered the relevant matters, was so unreasonable that it could not have been reached.