NTD8 v Australian Crime Commission (No 2) - [2008] FCA 1551

FEDERAL COURT OF AUSTRALIA
NTD8 v Australian Crime Commission (No 2) [2008] FCA 1551
ADMINISTRATIVE LAW – Australian Crime Commission Examiner issuing notice requiring production of medical records of Aboriginal teenage 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 – no proper assessment of what the best interests of the teenage children called for in the circumstances – failure to give adequate weight to a relevant consideration of great importance – taking into account other considerations as paramount – 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)
Australian Crime Commission Amendment Act 2007
Families, Community Services and Indigenous Affairs and Other Legislation Amendment (Northern Territory Emergency Response and Other Measures) Act 2007
Administrative Decisions (Judicial Review) Act 1977(Cth)
National Crime Authority Act 1984 (Cth)
Migration Act1958 (Cth)
Sean Investments v McKellar (1981) 38 ALR 363
Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273
Wan v Minister for Immigration and Multicultural Affairs 107 FCR 133; [2001] FCA 568
Sebastian v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 31
Lam v Minister for Immigration and Multicultural Affairs (2006) 157 FCR 215; [2006] FCAFC 184
Perez v Minister for Immigration & Multicultural Affairs [2002] FCA 450
Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608
Rocca v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 71
Duxbury A, The Impact and Significance of Teoh and Lam in Groves and Lee, Australian Administrative Law, Cambridge University Press 2007
NTD8 v AUSTRALIAN CRIME COMMISSION and JEFFREY PHILIP ANDERSON
NTD8 OF 2008
REEVES J
17 OCTOBER 2008
DARWIN

IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY

NTD8 OF 2008

BETWEEN:

NTD8
Applicant

AND:

AUSTRALIAN CRIME COMMISSION
First Respondent

JEFFREY PHILIP ANDERSON
Second Respondent

JUDGE:

REEVES J

DATE:

17 OCTOBER 2008

PLACE:

DARWIN

REASONS FOR JUDGMENT
INTRODUCTION

NTD8 is an Aboriginal community controlled health organisation providing health services to the residents of Aboriginal communities, outstations and pastoral properties in the Katherine region of the Northern Territory. It has been given the pseudonym ‘NTD8’ to protect the privacy of those of its patients who may be affected by these proceedings.
In May 2008, the Australian Crime Commission (‘ACC’) served an amended notice on NTD8 under s 29(1) of the Australian Crime Commission Act 2002 (Cth) (‘the ACC Act’) requiring it to produce certain medical records and others documents held by it. In summary, the medical records related to the presentations by patients of NTD8 at clinics conducted by it, for treatment that may have been associated with family and domestic violence and/or other forms of assault including sexual assault. The ACC said that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] FCA 1551
Decision Date: 17 October 2008

CaseChat Overview and Summary

The case of NTD8 v Australian Crime Commission (No 2) was heard by the Federal Court of Australia. The primary dispute was whether an Examiner of the Australian Crime Commission (ACC), Mr. Anderson, was required to consider the best interests of eight young Aboriginal girls as a primary consideration when deciding to issue an amended notice under the Australian Crime Commission Act 2002 (ACC Act). NTD8, a medical practitioner, challenged the legality of the amended notice issued by Mr. Anderson, which sought medical records and other personal details of the eight girls, arguing that Mr. Anderson failed to appropriately weigh the children’s best interests against other considerations.

The legal issues the court had to resolve were twofold. First, whether Mr. Anderson was required to consider the best interests of the children as a primary consideration when deciding to issue the amended notice. Second, if such a requirement existed, whether Mr. Anderson had indeed done so. The court examined the statutory provisions and relevant case law to determine the scope and purpose of the ACC Act and how they informed the considerations that Mr. Anderson should have taken into account.

In its reasoning, the court concluded that Mr. Anderson was indeed required to treat the best interests of the children as a primary consideration when issuing the amended notice. This conclusion was drawn from the implications of Australia’s ratification of the Convention on the Rights of the Child and the High Court’s decision in Minister for Immigration and Ethnic Affairs v Teoh, which emphasised that the best interests of the child must be a primary consideration in all actions concerning children. The court found that Mr. Anderson had failed to adequately consider the best interests of the children, thus not properly exercising his statutory powers. Consequently, the court determined that Mr. Anderson's decision to issue the notice was flawed due to this oversight.

The court proposed to grant relief to NTD8 under the Administrative Decisions (Judicial Review) Act 1977 (Cth) in relation to the part of the amended notice concerning the medical records and other details of the eight young Aboriginal girls. However, as the amended notice also pertained to other patients whose records were no longer in contention, the court sought further input from the parties on the appropriate form of its orders.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Before turning to consider those issues, it is necessary to briefly set out some of the factual background to these proceedings and to set out some of the relevant provisions of the ACC Act. In doing so, I will necessarily duplicate some of the material I set out in my earlier decision on the application by NTD8 that I should disqualify myself for apprehended bias (see [2008] FCA 984).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 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 Phillip Anderson is an Examiner appointed under s 46B(1) of the ACC Act. On 10 April 2008, in his role as an ACC Examiner and as a part of the Special Intelligence Operation, he issued the original notice to NTD8 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

In summary, a fair reading of Mr Anderson’s affidavit and its annexures shows that he:· did not make any assessment of what the best interests of these eight young Aboriginal children were, or what they called for in the circumstances;· in particular, did not make any real assessment of the views expressed by Dr Bell and Nurse Gooley as to where the best interests of these eight young Aboriginal children may lie;· did not treat the best interests of these eight young Aboriginal children as a primary consideration and, therefore, did not weigh that primary consideration against other considerations of equal, but not paramount, importance in coming to his final decision; and · instead, simply relied upon other considerations as the primary considerations in coming to his decision. CONCLUSION For these reasons, I conclude that, as a matter of law, when he was deciding whether it was reasonable to issue the amended notice, Mr Anderson was required to take into account the best interests of the eight young Aboriginal girls concerned, as a primary consideration. I also conclude, as a matter of fact, he failed to do so. He therefore failed to give adequate weight to a relevant consideration of great importance. It follows that he did not properly exercise the power conferred on him under s 29 of the ACC Act in issuing the amended notice. I therefore propose to grant appropriate relief to NTD8 under s 5(1)(e) and 5(2)(b) of the Administrative Decisions (Judicial Review) Act 1977(Cth) in relation to that part of the amended notice that relates to the medical records and other details of the eight young Aboriginal girls. However, because the amended notice is also directed to the medical records of other patients of NTD8, in relation to which there is no longer any challenge, I will hear the parties as to the form that my orders should take.

Ratio Decidendi

Legal Principle Established

Established by: REEVES J

Because of the way in which NTD8 has reduced the live issues in these proceedings, only two remain for determination. They are, first, in issuing the notice, was Mr Anderson required to take into account the best interests of the children concerned as a primary consideration? Secondly, if he was, did he do so? Was Mr Anderson required to take into account the best interests of the children concerned as a primary consideration? At the outset, I should make it clear that it is not my function to review the merits of Mr Anderson’s decision to issue the notice, or to substitute my own decision for his. Instead, my function is to ensure that Mr Anderson acted in accordance with the statutory provisions upon which he relied when issuing the amended notice: see Sean Investments v McKellar (1981) 38 ALR 363 at 375 per Deane J and Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24 (‘Peko’) at 40-41 per Mason J. For present purposes, the operative words of s 29(1A) of the ACC Act are that the examiner “must be satisfied it is reasonable in all the circumstances” to issue the notice. Apart from the general reference to “all the circumstances”, the section does not expressly state what considerations the examiner is to take into account. In that event, those considerations must be “determined by implication from the subject-matter, scope and purpose of the Act”: see Peko at 39-40 per Mason J. It is common ground between the parties that the best interests of the children concerned is a consideration which Mr Anderson was obliged to take into account in issuing the amended notice. The parties agree that, in the context of these proceedings, this flows from a number of matters including: the amendments made to the ACC Act by the FACSIA Act (see [20] above), the Minister’s Second Reading Speech on the FACSIA Bill and the Explanatory Memorandum for the FACSIA Bill. However, the point of departure between the parties is whether in issuing the amended notice, Mr Anderson was obliged to take into account the best interests of the children concerned as a primary consideration (emphasis added). NTD8 says he was, essentially relying upon the High Court’s decision in Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 (‘Teoh’). The ACC says that he was not. It says s 29(1A) of the ACC Act bestowed upon Mr Anderson a general discretionary power and, while he had to take into account the best interests of the children concerned as a consideration, he did not have to make it a primary consideration vis a vis other considerations such as the purpose and objects of the ACC Act, the determination issued by the Board of the ACC and the Special Intelligence Operation. In my view, NTD8 is correct in its submissions. So much is clear, in my view, from what the High Court said in Teoh. In that case, the High Court had to consider what effect Australia’s ratification of the Convention on the Rights of the Child had on administrative decision-makers when they were making decisions affecting the interests of children. Of particular relevance was Article 3 of the Convention on the Rights of the Child which states:“In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY	NTD8 OF 2008

JUDGE:	REEVES J
DATE:	17 OCTOBER 2008
PLACE:	DARWIN