Australian Crime Commission v NTD8

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.