C Incorporated v Australian Crime Commission

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FEDERAL COURT OF AUSTRALIA

C Incorporated v Australian Crime Commission [2008] FCA 1806

ADMINISTRATIVE LAW – Australian Crime Commission Examiner issuing notice requiring production of medical records of Aboriginal children - requirement of Teoh that the best interests of the children be a primary consideration - whether proper consideration given by the Examiner to the best interests of the children concerned in issuing the notice - whether legitimate expectation affords substantive or procedural rights - failure to afford procedural fairness and natural justice - s 29 of Australian Crime Commission Act 2002 (Cth) - s 5 of Administrative Decisions (Judicial Review) Act 1977(Cth)

Australian Crime Commission Act 2002 (Cth)
Families, Community Services and Indigenous Affairs and Other Legislation Amendment (Northern Territory Emergency Response and Other Measures) Act 2007
Australian Crime Commission Amendment Act 2007
Administrative Decisions (Judicial Review) Act 1977 (Cth)
National Crime Authority Act 1984 (Cth)
Migration Act1958 (Cth)

NTD8 v Australian Crime Commission (No 2) [2008] FCA 1551
Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273
Duff v Freijah (1982) 43 ALR 479
Minister for Immigration and Multicultural Affairs, Re; Ex parte Lam (2003) 214 CLR 1
Royal Women’s Hospital v Medical Practitioners Board (2006) VSCA 85
Sanders v Snell (1998) 196 CLR 329
Untan v Minister forImmigration & Multicultural & Indigenous Affairs [2003] FCAFC 69
Kioa v West (1985) 159 CLR 550
Sebastian v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 31
Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608
Public Service Board v Osmond (1986) 159 CLR 656
Haoucher v Minister for Immigration & Ethnic Affairs (1990) 169 CLR 648
Saitta Pty Ltd v Commissioner of Taxation and Anor [2002] FCA 1105
Customs v Kawasaki Motors (No 1) (1991) 32 FCR 219
Queensland Medical Laboratory v Blewett (1988) 84 ALR 615
Botany Bay City Council v Minister of State for Transport and Regional Development (1996) 66 FCR 537
May v Commissioner of Taxation (1999) 92 FCR 152
MM & Anor v ACC [2007] FCA 2026
Structureco Inc v Registrar of Trademarks [2003] 132 FCR 558
Woodroffe v Deputy Commissioner of Taxation (2000) 179 ALR 750
Johns v ASC (1993) 178 CLR 408
Riverside Nursing Care Pty ltd v Bishop (2000) 100 FCR 519
Perez v Minister for Immigration & Multicultural Affairs [2002] FCA 450
Wan v Minister for Immigration & Multicultural & Indigenous Affairs [2000] FCA 1822
Barnes v Boulton (2004) 139 FCR 356

Duxbury A, The Impact and Significance of Teoh and Lam in Groves and Lee, Australian Administrative Law, Cambridge University Press 2007
Carolyn Doyle and Mirko Bagaric Privacy Law in Australia The Federation Press 2005

C INCORPORATED v AUSTRALIAN CRIME COMMISSION and JEFFREY PHILIP ANDERSON

NTD 9 of 2008

REEVES J
28 NOVEMBER 2008
DARWIN


IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY

NTD 9 of 2008
BETWEEN:

C INCORPORATED
Applicant
AND:

AUSTRALIAN CRIME COMMISSION
First Respondent

JEFFREY PHILIP ANDERSON
Second Respondent

JUDGE:

REEVES J

DATE:

28…

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Details
Case
[2008] FCA 1806
Decision Date

CaseChat Overview and Summary

C Incorporated, an incorporated association providing health services in the Northern Territory, challenged the decision of Mr Anderson, an Examiner appointed under the Australian Crime Commission Act 2002, to issue a notice under section 29(1) of the Act. The notice, issued as part of a Special Intelligence Operation concerning Indigenous violence or child abuse, sought information from C Incorporated related to the treatment of patients under the age of 18 for sexually transmitted illnesses, pregnancies, contraception, terminations of pregnancies, sexual and/or physical abuse, and treatment for sexual assaults or domestic violence assaults. The Federal Court was tasked with determining whether Mr Anderson's decision to issue the notice was lawful, particularly in light of the potential breach of natural justice, lack of evidence justifying the decision, failure to consider relevant factors, and whether the exercise of power was unreasonable.

The court considered several key legal issues: whether Mr Anderson breached the rules of natural justice by not providing an opportunity for C Incorporated to be heard; whether there was sufficient evidence to justify the decision; whether relevant considerations were taken into account; and whether Mr Anderson's exercise of power was so unreasonable that no reasonable person could have exercised the power in the circumstances. The court examined the statutory framework, the context of the Northern Territory Intervention, and the specific provisions of the Australian Crime Commission Act 2002 to assess the validity of the notice.

The court found that Mr Anderson did not breach the rules of natural justice as there was no obligation to provide an opportunity for C Incorporated to be heard prior to issuing the notice. It was held that the decision to issue the notice was supported by evidence, specifically the underreporting of Indigenous related child sexual abuse, and that Mr Anderson had considered relevant factors such as the public health consequences and the availability of information from other sources. The court concluded that Mr Anderson's exercise of power was not so unreasonable as to be unlawful, as there was evidence to support the decision and Mr Anderson had considered relevant factors in making his decision.

In light of the findings, the court dismissed the application by C Incorporated, upholding the validity of the notice issued by Mr Anderson. The decision underscored the importance of statutory interpretation and the exercise of discretion within the framework of the Australian Crime Commission Act 2002.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

I mention the NTD8 decision because some of the general factual background and all of the section describing the relevant provisions of the ACC Act set out in that decision, apply equally to this decision. Nonetheless, so that these two decisions can each stand alone, I propose to repeat that material in this decision. I will also add the relevant factual background that is unique to these proceedings and identify the issues that arise. FACTUAL BACKGROUND In June 2007, following the publication of the ‘Little Children are Sacred’ Report which was commissioned by the Northern Territory Government, the Commonwealth Government decided to establish the Northern Territory Emergency Response, more commonly known as the Northern Territory Intervention, to deal with the incidence of child abuse and domestic violence in remote Aboriginal communities in the Northern Territory. As a part of the Northern Territory Intervention, a package of four pieces of legislation was passed by the Commonwealth Parliament. It included the Families, Community Services and Indigenous Affairs and Other Legislation Amendment (Northern Territory Emergency Response and Other Measures) Act 2007 (‘the FACSIA Act’) and the Australian Crime Commission Amendment Act 2007, both of which made a number of amendments to the ACC Act. In general terms those amendments extended the ambit of the ACC’s functions to include intelligence operations in relation to Indigenous violence or child abuse. I have set out a summary of those amendments in the Relevant Legislative Provisions section below. In pursuit of its extended functions, on 5 February 2008, the Board of the ACC issued a Determination (‘the Determination’) entitled the Special Intelligence Operation Authorisation and Determination (Indigenous Violence or Child Abuse) 2008 (‘the Special Intelligence Operation’). The purpose of the Special Intelligence Operation included the collection and analysis of criminal information and intelligence relating to federally relevant criminal activities in relation to Indigenous violence or child abuse or other federally relevant criminal activity. Its objectives included:(a) Identifying offenders involved in Indigenous violence and child abuse;(b) Supporting investigations by partner agencies into violence or child abuse in Indigenous communities by utilising ACC coercive powers where appropriate;(c) Enhancing the understanding of the nature and extent of violence or child abuse in Indigenous communities;(d) Providing intelligence based advice to the relevant Commonwealth, State and Territory organisations on violence or child abuse in remote and urban Indigenous communities, including organised crime involvement in substance abuse, alcohol and pornography; and(e) Facilitating intelligence collection and sharing. Mr Jeffrey Philip Anderson is an Examiner appointed under s 46B(1) of the ACC Act. On 1 April 2008, in his role as an ACC Examiner and as a part of the Special Intelligence Operation, he issued the original notice to C Inc under s 29(1) of the ACC Act.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

REEVES J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: REEVES J

In both the original notice and the Notice, Mr Anderson decided to include a notation under s 29A(1) of the ACC Act. In the Notice, the notation was to the following effect:Pursuant to subsection 29A(1) of the Australian Crime Commission Act 2002, disclosure of information about this notice, or any official matter connected with it, is prohibited except to the Federal Court of Australia and the Attorneys-General of the Commonwealth and the States for the purposes of any application challenging the validity of the notice, in which case the applicant’s name is to be suppressed and replaced by a letter and/or number pseudonym, and where section 29B of the Act does not prevent such disclosure.THE ISSUES THAT ARISE FOR CONSIDERATION By comparison to the notice Mr Anderson issued in NTD8, the notice in this matter includes the following distinguishing features:·Paragraphs 1 and 2 apply to patients of C Inc who are under the age of 18 years and, therefore, are children. In this respect, these paragraphs are similar to the notice in NTD8: see [2008] FCA 1551 at [12]. However, unlike in NTD8, where eight teenage girls who had received contraceptive treatment were indirectly identified as the patients, these paragraphs do not identify (whether directly, or indirectly) any details of the child patients who may be affected by the notice.·Paragraph 1 applies to treatment for “sexually transmitted illnesses, pregnancies or … services relating to contraception and terminations of pregnancies”. This is similar to the notice in NTD8, albeit it was limited to the latter aspect and that ultimately became the sole focus of those proceedings: see [2008] FCA 1551 at [12] and [14].·Paragraph 2 applies to treatment for “sexual and/or physical abuse”. In NTD8, the applicant elected not to pursue its challenge to the similar part of the notice in those proceedings: see [2008] FCA 1551 at [14].·Given that paragraph 2 specifically applies to children who have been treated for sexual and/or physical abuse, while it is not expressed to be so limited, I consider it can be inferred that paragraph 3 is solely directed to adult patients of C Inc because it refers to almost the same causes for the treatment i.e. sexual assaults or domestic violence assaults. I will therefore proceed to consider this matter on that assumption. Again, in NTD8 the applicant elected not to pursue its challenge to the similar part of the notice in those proceedings: see [2008] FCA 1551 at [14]. In late May 2008, following receipt of the Notice, C Inc applied to amend its application in these proceedings so that it was directed to the Notice. C Inc further amended its application at the hearing on 14 July 2008. The grounds set out in the final amended application may be summarised as follows:1.Under s 5(1)(a) of the Administrative Decisions (Judicial Review) Act 1977 (‘the Act’) - that a breach of the rules of natural justice occurred in that Mr Anderson did not provide C Inc with any opportunity to be heard or consider and respond to the material on which he made his decision to issue the notice.2.Under s 5(1)(h) of the Act - that was no evidence or other material to justify the making of the decision in that a generic unsourced statement of under reporting of Indigenous related child sexual abuse contained in the statement of facts and circumstances (under the heading ‘child abuse’ on page 9) of the second respondent is not a basis for assuming that the applicant had engaged or intended to engage in such conduct.3.Under s 5(2)(b) of the Act – that Mr Anderson failed to take a number of relevant considerations into account in the exercise of his power to issue the notice, namely:·3(a) and (b) - the impracticability of compliance with the notice as deposed to in the affidavit of Ms Bell.·3(c) - the best interests of the children concerned having regard to the possibility that the disclosure of their confidential medical information may discourage them from seeking advice and treatment in the future as deposed to by Dr Boffa.·3(d) - the effect of the operation of s 12 of the ACC Act as deposed to in the affidavit of Dr Boffa.·3(e) - the disclosure of their confidential medical information was likely to have adverse consequences for the primary health care of Aboriginal patients in Central Australia, as deposed to by Dr Boffa.·3(f) - the adverse effect on young Aboriginal mothers seeking ante-natal care as deposed to in the affidavit of Dr Boffa.·3(g) - the adverse effect on young people seeking treatment for sexually transmitted infections as deposed to in the affidavit of Dr Boffa.·3(h) - whether young Aboriginal people under the age of 16 years were mature enough to consent to sexual intercourse as deposed to in the affidavit of Dr Boffa.·3(i) - that the information sought could be obtained from another source as deposed to in the affidavit of Mr Mizow.4.Under s 5(2)(g) of the Act that Mr Anderson’s exercise of the power was so unreasonable that no reasonable person could have exercised the power in the circumstances where:·There was no evidence before him to indicate that C Inc or its employees was engaged in the under reporting of Indigenous related child sexual abuse.·He made no proper consideration of the matters deposed to in the affidavit of Stephanie Bell sworn 8 May 2008.·He made no enquiry of C Inc or any other persons, which if he had done so, would have brought to his attention the public health consequences as deposed to in the affidavit of Dr Boffa of 10 June 2008.·He made no enquiry of C Inc or any other persons, which if he had done so, would have brought to his attention the matters deposed to in the affidavit of Henry Mizow dated 10 July 2008, that the availability of the material sought in the Notice could readily [be] obtained by the ACC by other means.