C Incorporated v Australian Crime Commission [2010] FCAFC 4 | Case summary

[11]

The Intervention 3 The background to the application is not contentious. It is set out in some detail in the decision of the Full Court in Australian Crime Commission v NTD8 [2009] FCAFC 86 (NTD8), which, similarly, concerned a challenge to a decision of an examiner to issue a notice under s 29 of the ACC Act to an Aboriginal community-controlled primary health care services provider. 4 The Northern Territory National Emergency Response (the Intervention) was introduced in June 2007 in response to the report of the Northern Territory Board of Inquiry into the Protection of Aboriginal Children from Sexual Abuse, entitled Little Children are Sacred. The Intervention came into effect with the passage of the Northern Territory National Emergency Response Act 2007 (Cth), the Social Security and Other Legislation Amendment (Welfare Payment Reform) Act 2007 (Cth)and the Families, Community Services and Indigenous Affairs and Other Legislation Amendment (Northern Territory National Emergency Response and Other Measures) Act 2007 (Cth). 5 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) amended the ACC Act to enable the National Indigenous Violence and Child Abuse Intelligence Task Force of the ACC (the Task Force) to exercise the coercive powers available under the ACC Act in furtherance of its purpose of enhancing the national understanding of the nature and extent of issues surrounding violence and child abuse in Indigenous communities. Subsection 4(1) of the ACC Act was amended to include, inter alia, definitions of "child", "child abuse", "Indigenous person" and "Indigenous violence or child abuse". The Amending Act redefined the term "federally relevant criminal activity" by reference to the term "relevant crime" and defined "relevant crime" to include both "serious and organised crime" (the previous ambit of the ACC Act) and "Indigenous violence or child abuse". "Indigenous violence or child abuse" was defined as "serious violence or child abuse committed by or against, or involving, an Indigenous person", and the term "serious violence" was defined as "an offence involving violence against a person (including a child) that is punishable by imprisonment for a period of 3 years or more". 6 On 5 February 2008 the Board of the ACC issued the Special Intelligence Operation Authorisation and Determination (Indigenous Violence or Child Abuse) 2008 (the Determination) pursuant to s 7C(2) of the ACC Act. Subsections 7A(c) and 7C(1)(c) and (3) predicate the power to make such a determination upon the existence of federally relevant criminal activity. Schedule 1 to the Determination identified the general circumstances constituting the "federally relevant criminal activity" of Indigenous violence or child abuse. 7 The purpose of the Special Intelligence Operation, as set out by the Board of the ACC pursuant to s 7C(4)(c) of the ACC Act, was, inter alia, to: (a) collect and analyse criminal information and intelligence relating to the relevant crime, to disseminate that information and intelligence in accordance with the Act and to inform the Board in relation to that information and intelligence; [and] (b) discover the identity of persons involved in the relevant crime and to identify the nature of their involvement. It was also to make appropriate recommendations to the Board about suggested investigative responses by the ACC or other law enforcement agencies, and about legal or administrative reforms. 8 The Determination enlivened the coercive powers of investigation available to the ACC under Div 2 of Pt II of the ACC Act, including the powers, through an examiner, to summon witnesses and to take evidence under s 28 and to obtain documents under s 29.

[12]

The s 29 power 9 Subections 29(1) and (1A) of the ACC Act impose constraints upon the exercise of the power to obtain documents. They provide: (1) An examiner may, by notice in writing served on a person, require the person: (a) to attend, at a time and place specified in the notice, before a person specified in the notice, being an examiner or a member of the staff of the ACC; and (b) to produce at that time and place to the person so specified a document or thing specified in the notice, being a document or thing that is relevant to a special ACC operation/investigation. (1A) Before issuing a notice under subsection (1), the examiner must be satisfied that it is reasonable in all the circumstances to do so. The examiner must also record in writing the reasons for the issue of the notice. The record is to be made: (a) before the issue of the notice; or (b) at the same time as the issue of the notice; or (c) as soon as practicable after the issue of the notice. 10 These sections must be read in conjunction with s 29(5), which provides: (5) A failure to comply with any of the following provisions does not affect the validity of a notice under subsection (1) of this section: (a) subsection (1A) of this section, in so far as that subsection relates to the making of a record; (b) section 29A, in so far as that section relates to a notice under subsection (1) of this section. 11 Section 29A empowers an examiner issuing a notice under s 29 to include a notation prohibiting disclosure of information about the notice. Section 29A relevantly provides: (1) The examiner issuing a summons under section 28 or a notice under section 29 must, or may, as provided in subsection (2), include in it a notation to the effect that disclosure of information about the summons or notice, or any official matter connected with it, is prohibited except in the circumstances, if any, specified in the notation. (2) A notation must not be included in the summons or notice except as follows: (a) the examiner must include the notation if satisfied that failure to do so would reasonably be expected to prejudice: (i) the safety or reputation of a person; or (ii) the fair trial of a person who has been or may be charged with an offence; or (iii) the effectiveness of an operation or investigation; (b) the examiner may include the notation if satisfied that failure to do so might prejudice: (i) the safety or reputation of a person; or (ii) the fair trial of a person who has been or may be charged with an offence; or (iii) the effectiveness of an operation or investigation; (c) the examiner may include the notation if satisfied that failure to do so might otherwise be contrary to the public interest. 12 Failure to comply with a notice to produce documents is an indictable offence attracting a severe penalty (in the case of an individual, imprisonment for up to five years: s 29(3A)). Disclosure of a notice or information about it (except as permitted by s 29B(2)) is also an offence and attracts a penalty (in the case of an individual, of imprisonment for up to one year: s 29B(1)). It is relevant to note that the application of s 29 is not limited to the Intervention.

[13]

The Notice 13 An examiner of the ACC (the Examiner) served C Inc with a notice on 1 April 2008 (the first notice) in purported exercise of the power under s 29. C Inc responded by commencing the proceeding at first instance to challenge the validity of the decision to issue the first notice. After C Inc had filed some evidentiary material in the proceeding, the Examiner and the ACC did not to press the first notice. 14 On 20 May 2008 the Examiner issued a new notice to C Inc under s 29 of the ACC Act (the Notice). The proceeding was amended to challenge the validity of the decision to issue the Notice. 15 The Notice required C Inc to produce documents (including but not limited to case notes, entries and records) in relation to: 1. "Indigenous Patients, under 16 years of age presenting due to, or with, sexually transmitted illnesses, pregnancies or seeking services relating to contraception and terminations of pregnancies" who presented at C Inc's main clinic between 1 January 2007 and 31 December 2007; 2. "Indigenous children (who have not attained the age of 18 years of age) who have or are being treated due to sexual and/or physical abuse" who presented at C Inc's main clinic between 1 January 2007 and 31 December 2007; and 3. Persons who presented in relation to "Indigenous domestic violence assaults or sexual assaults on Indigenous persons" at C Inc's main clinic between 1 January 2008 and 31 March 2008. The Notice required the documents to include "any personal particulars available including the name, date and place of birth, address and date of persons presenting" and the name of the practitioner to whom the person presented. The Notice also sought, in relation to the second and third categories of persons, "any document which records the name or names and personal particulars of any person or persons who are identified to [C Inc] by the person presenting (or any person on their behalf) as having assaulted, sexually assaulted, or abused, as the case may be, such person presenting" and "details of any referrals to any Agency or Department of the Commonwealth or Northern Territory Governments in respect of such domestic violence assaults or sexual assaults". 16 The Notice included a notation under s 29A(1) of the ACC Act as follows: 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.

[14]

The challenge to the Notice 17 In its 'proposed further amended application for order of review' dated 14 July 2008 C Inc relied, inter alia, upon the grounds provided for by ss 5(1)(e) and 5(2)(b) of the ADJR Act. It claimed that the decision by the Examiner to issue the Notice was an improper exercise of the power conferred by s 29 of the ACC Act because, it said, the Examiner failed to take into account the following considerations, which it said were relevant considerations: (a) …the impracticability of compliance with the Notice… in the time allowed as deposed to in the affidavit of Ms [B] sworn on 8 May 2008. (b) …that compliance will require the employment of an appropriate professional in an organisation that is community funded. A request for funding was refused. (c) …the best interests of the relevant children by having regard to the possibility that the disclosure of child clients' confidential medical information may discourage those clients from seeking medical advice and treatment in future as deposed to in the affidavit of Dr [B] sworn on 10 June 2008; (d) …the requirement pursuant to s 12 of the [ACC Act] that any evidence of an offence obtained, being admissible in a prosecution for the offence, must be given to the Commonwealth or Northern Territory Attorney General or law enforcement agencies where that evidence might, for example, simply be that a 15 year old person has sought contraceptive advice as deposed to in the affidavit of Dr [B] sworn on 10 June 2008; (e) …that [C Inc] has built up a situation of trust and confidence with [certain Indigenous] peoples over many years and the breach of patient confidentiality is likely to have ongoing adverse primary health consequences for that clientele once that trust is breached as deposed to in the affidavit of Dr [B] sworn on 10 June 2008; (f) … that the public health consequences of compliance with the request for identified patient information would be counterproductive for ante natal care early in pregnancy as deposed to in the affidavit of Dr [B] sworn on 10 June 2008; (g) … the consequences of young people ceasing to come to [C Inc] for testing and treatment for Sexually Transmitted Infections which is likely if it becomes known in the community that Health Services are required to report to [the ACC] their names and personal details. The already high prevalence of sexually transmitted Infections in Aboriginal young people in the … region will likely increase the prevalence of sexually transmitted infections with probable deaths from gonococcal infection which is a consequence of not treating these infections as deposed to in the affidavit of Dr [B] sworn on 10 June 2008; (h) … that some young people under the age of 16 who are sexually active are mature enough to consent to sex and therefore do not need to be reported unless sexual abuse is suspected as deposed to in the affidavit of Dr [B] sworn on 10 June 2008; (i) … that the information sort [sic] in the notice could readily obtained [sic] by [C Inc] by other means as deposed to in the affidavit of [Mr M] dated 10 July 2008. 18 Relying on the grounds provided for by ss 5(1)(e) and 5(2)(g) of the ADJR Act, C Inc also claimed that the making of the decision was an improper exercise of the power in that, it was said, the Examiner was required to satisfy himself that the issue of the Notice was reasonable in all the circumstances and that he had failed to do so by issuing the Notice: (a) without regard to the merits of the particular case in that no evidence was before him to indicate that [C Inc] or its employees was engaging in the under-reporting of Indigenous related child sexual abuse; (b) without proper consideration of the matters deposed to in the affidavit of [Ms B] sworn 8 May 2008; (c) without making 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 [B] of 10 June 2008; and (d) without making enquiry of [C Inc] or any other persons which would have brought to his attention the availability of other means to obtain the material as deposed to in the affidavit of [Mr M] dated 10 July 2008. 19 Initially, C Inc also challenged the validity of the decision to issue the Notice on other grounds, namely that a breach of the rules of natural justice occurred in relation to the making of the decision, in that the Examiner did not provide C Inc with any opportunity to be heard or consider and respond to the material on which he made his decision, so as to invoke s 5(1)(a) of the ADJR Act, and that there was no evidence or other material to justify the making of the decision, so as to invoke s 5(1)(h) of the ADJR Act. Those grounds were considered by the primary judge but did not fall for consideration by this Court on appeal. 20 C Inc raised an additional claim by amendment of its application. The amendment was not opposed, even though it was made only at the commencement of the appeal. The Solicitor-General, who appeared for the ACC and the Examiner on the appeal, made no submission that the Court should not consider the issue, no doubt because it involved the construction of s 29(1A) of the ACC Act. The additional claim was that the Examiner failed to comply with s 29(1A) and so acted unlawfully in issuing the Notice because he did not record any reasons, or alternatively he recorded inadequate reasons, for his decision to issue the Notice.

[15]

Insofar as the Notice concerned the child patients 21 At first instance, C Inc's challenge was successful in relation to the requirement to produce documents concerning the first two categories of persons identified in the Notice as set out above at [15] (the child patients). The primary judge concluded that the Examiner was obliged to accord the child patients procedural fairness but had failed to do so and that accordingly, to the extent that the Notice related to the medical records of the child patients, the Notice was invalid and should be set aside. The Examiner was said to have failed to accord the child patients procedural fairness by failing to fulfil their legitimate expectation that he would take into account as a primary consideration their best interests when making the decision or would give them an opportunity to be heard if he intended not to fulfil that expectation. 22 The proposition that the best interests of the child patients had to be taken into account as a primary consideration was drawn from Article 3(1) of the Convention on the Rights of the Child. Opened for signature 20 November 1989. 1577 UNTS 3 (entered into force 2 September 1990) (the Convention), which provides: 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. Australia ratified the Convention in 1990, but it has not become part of domestic law by legislative adoption. 23 C Inc contended that the disclosure of confidential medical information about child patients would discourage those patients from seeking advice and treatment in the future. That must, in the circumstances, mean the disclosure to the ACC. Dissemination of the information would require a further decision. C Inc relied on the evidence of Dr B (a medical practitioner employed by C Inc who had worked with Aboriginal patients for some 20 years) that strict confidentiality was critical to the development of a "good trust relationship" with C Inc's patients, especially its young patients. Dr B contended that the supply by C Inc of the information required by the Notice would itself have a counter-productive effect on public health issues concerning Aboriginal adults and children as particularised in grounds (c) to (h) of the appellant's further amended application for review set out at [17] above. This was relied upon as a practical answer to the respondent's argument that the decision of the Examiner was only to acquire the information, not to use it. 24 After considering the decision of Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 (Teoh) and the later decision of Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam (2003) 214 CLR 1 (Lam), the primary judge at [58] concluded that "a combination of Australia's ratification of the Convention; the fact that the decision in question concerns children; and the fact that the decision-maker has not given notice that he or she intends to do otherwise" gave rise to an expectation that the Examiner would treat the best interests of the child patients as a "primary consideration". His Honour concluded that, if it emerged that the Examiner had not satisfied the expectation to treat the best interests of the child patients as a primary consideration, or given notice that he intended to do otherwise, he would have failed to afford them procedural fairness and the decision would be set aside on that ground. 25 His Honour noted at [64] that there was no legislative or executive indication to the contrary and added: … the ACC accepted that Mr Anderson was required to take into account the best interests of the children concerned as a consideration. This flowed from the purpose and objects of the ACC Act and, amongst other things, the Determination. Indeed, as the ACC pointed out in its outline of written submissions, the Minister's Second Reading Speech on the package of legislation, which included the amendments to the ACC Act, contained numerous statements to the effect that the object of the amending legislation was to ensure "the safety and wellbeing of children" and the "protection of children" from various scourges, including sexual abuse and domestic violence. Furthermore, the Minister noted in his Second Reading Speech that the amending legislation would allow Australia to implement its "obligations under Human Rights treaties". The Convention was presumably one of the treaties the Minister had in mind. Indeed, in my opinion, it would be a perverse outcome if the Determination and the Special Intelligence Operation conducted pursuant to it, both of which are ultimately aimed at protecting Aboriginal children, contained some legislative or executive indication that in the course of pursuing them, the officers of the ACC would not treat the best interests of those same Aboriginal children as a primary consideration. 26 The ACC argued unsuccessfully at first instance that other decisions in which the use of coercive or inquisitorial powers attracted an entitlement to procedural fairness were not aptly applied to the exercise of power under s 29 of the ACC Act. It also argued that, if the rules of procedural fairness did apply to the making of the decision to issue the Notice, those rules in the circumstances did not require the giving of notice of the intention to make the decision or an opportunity to be heard before the decision was made. His Honour rejected those arguments because he found that the obligation to afford procedural fairness arose from the "peculiar combination" of circumstances involving a group of children, Australia's ratification of the Convention, and Teoh ([74]). 27 Having concluded that the Examiner was required to satisfy the expectation of the child patients that he would treat their best interests as a primary consideration because he did not notify them of his intention to do otherwise, the primary judge then identified the question for determination as whether the Examiner had in fact treated the best interests of the child patients as a primary consideration. After reviewing the Examiner's reasons for the decision and his affidavit and oral evidence, his Honour found that the Examiner did not embark upon any assessment of what were the best interests of the child patients, or what their best interests called for in the circumstances, and did not indicate that their best interests were a primary consideration (at [92]). The primary judge concluded that the Examiner "did not treat the best interests of this particular group of Aboriginal children as a primary consideration. It follows that he failed to afford them procedural fairness" (at [93]). Consequently, the decision of the Examiner, so far as it affected them, was set aside.

[16]

Insofar as the Notice concerned the adult patients 28 Having found that the Notice should be set aside for want of procedural fairness insofar as it related to the child patients, his Honour considered the remainder of the grounds of review only insofar as they concerned the third category of persons identified in the Notice as set out above at [15] (the adult patients). 29 The primary judge rejected the claim that the Examiner failed to take into account as a relevant consideration the impracticability of complying with the Notice on the ground that, whether or not the Examiner was required to take that consideration into account as a matter of law, he had done so in fact (at [101]). The evidence on that point was contained in the affidavit of Ms B, the Director of C Inc, affirmed on 8 May 2008 and directed toward the first notice. No further evidence was adduced addressing any difficulties of compliance with the Notice. The Examiner's evidence, as noted by his Honour, was that he had narrowed the scope of the Notice in the light of that affidavit. The primary judge concluded that since there was "no evidence to suggest that there are any similar difficulties in complying with the Notice" to those of complying with the earlier notice, the contention must fail (at [101]). 30 The next matter considered at first instance was the contention that the Examiner was required to, and did not, take into account as a relevant consideration that the information sought could be obtained by other means. In support of the factual part of that contention, namely the availability of the information from another source, C Inc had adduced the Agreement between the Commonwealth of Australia as represented by the Department of Health and Ageing and C Inc, effective from 1 July 2007 (the Agreement). Clause 11 of the Agreement, it was argued, allowed the Department to conduct an audit of C Inc in relation to the primary health care services it provided under the Agreement. Implicitly, it was assumed that the results of any such audit would have been provided to the ACC. The primary judge rejected the contention. His Honour did not accept that the power in s 29 should be "confined" so that, before its exercise, the decision-maker needed to consider whether the information sought was otherwise available. At [104], the primary judge concluded: If the power under s 29 was confined in the way suggested by C Inc, it would lead to the absurd situation where every time particular information was retained by more than one source, (which in the present day and age, is always likely to be the case), the ACC would be met with this objection. Then it would not be able to obtain the information from either source because each would be able to point to the other by way of objection. 31 The primary judge also rejected the claim that, in making the decision, the Examiner was obliged, and had failed, to accord procedural fairness to C Inc in relation to its concerns about the adult patients affected by the Notice. The primary judge found that, whether or not the Examiner was obliged to accord procedural fairness to C Inc, he had effectively given C Inc an opportunity to be heard by taking into account C Inc's original application and the affidavit evidence from Ms B and Ms C when deciding to issue the Notice (at [106]). 32 Finally, the primary judge rejected the contention that the decision to issue the Notice was an improper exercise of the power under s 29 because the Examiner was required, but failed, to satisfy himself that it was reasonable in all the circumstances to issue the Notice. There were four specified grounds in the amended application upon which the contention was based. Two of those grounds, namely the difficulty of complying with the notice and the availability of the information sought from other sources, had already been rejected. The third related to the public health consequences, which had already led his Honour to decide to set aside the Notice insofar as it related to the child patients. The remaining reason was that the Examiner had not considered the merits of the particular case, in particular that there was no evidence that C Inc under-reported child sexual abuse. The primary judge was of the view that this claim related only to child patients and could not therefore support an attack on that part of the Notice relating to adult patients. His Honour concluded at [108] that the "unreasonable test" required "something more than mere divergence of opinion. There must be something overwhelming." He did not consider that case was made out. 33 Consequently, the challenge to the validity of the decision to issue the Notice, insofar as it concerned the adult patients, was rejected.

[17]

The grounds of appeal 34 C Inc appealed on four grounds, namely: 1. The primary judge should have found that the Examiner failed to take into account three relevant considerations which he was bound to take into account in making his decision - (i) the best interests of adult Aboriginal patients of C Inc who were or may be victims of domestic violence assaults or sexual assaults; (ii) the impracticality of, and other difficulties which C Inc would be exposed to in, attempting to comply with the Notice; and (iii) that the information sought by the Notice could be obtained by other means. 2. The primary judge should have found that the Examiner - (i) was bound to identify each of the "circumstances" that was material to his decision to issue the Notice; (ii) should therefore have identified the following material circumstances: · the likely impact of compliance with the Notice on the rights and interests of adult Aboriginal patients of C Inc including those who were or may be victims of "domestic violence assaults or sexual assaults"; · the likely impact of compliance with the Notice on the rights and interests of C Inc; · whether the information sought would be obtained by other means; and (iii) having inadequate information about each of those three matters, should have made inquiries about them but did not make any such inquiries. 3. The primary judge should have found that, by reason of the matters in (2), the Examiner could not have been satisfied that it was reasonable in all the circumstances to issue the Notice requiring the production of medical records of adult patients of C Inc. 4. The primary judge erred in not confining the ACC and the Examiner to the written reasons for the decision to issue the Notice, recorded pursuant to s 29(1A), and so erred in not finding that the Examiner had not complied with s 29(1A) because the "reasons" did not record any reasons for the decision or alternatively recorded wholly inadequate reasons for the decision, so that the Examiner acted unlawfully in issuing the Notice. 35 The ACC cross-appealed in relation to the part of the decision at first instance that set aside the Notice in respect of the child patients. The Notice of Cross-Appeal expresses in various ways the asserted error of the primary judge, but the point is ultimately that the making of a decision under s 29 to issue a notice does not attract an obligation to accord procedural fairness. The ACC and the Examiner asserted by the cross-appeal that the primary judge erred in concluding, based upon Teoh and Article 3 of the Convention and the circumstances, that there was a legitimate expectation that procedural fairness be given to C Inc or to the child patients. Allied to that, they asserted that the primary judge should have distinguished Teoh. They also asserted that it was erroneous to conclude that, in the process of deciding to issue the Notice, there was a legitimate expectation to accord procedural fairness in the terms found by his Honour. 36 The other ground of cross-appeal was that the evidence of the doctor employed by C Inc, the broad effect of which is set out at [23] above, should not have been admitted. The evidence of Dr B was in an affidavit sworn on 10 June 2008 which, obviously, could not have been before the Examiner when he made the decision. The affidavit was admitted into evidence against the objection of the respondents. This ground was not, however, developed in the written or oral submissions on behalf of the ACC or the Examiner. 37 C Inc, by Notice of Contention, claimed that the learned judge's conclusion that the Examiner was required to take into account the interests of the child patients as a primary consideration was supportable on the foundation of the matter being one which the Examiner, as a matter of substantive law, was required to take into account. The further and alternative contention was that grounds (2), (3) and (4) of its Appeal (as set out at [34] above) should apply in any event to that part of the Notice concerning the child patients.

[18]

The first ground of appeal: failure to take into account relevant considerations 38 The appellant argued that the primary judge should have found that the Examiner failed to take into account three relevant considerations which, counsel says, the Examiner was bound to take into account in deciding to issue the Notice. These three considerations were said to be, broadly, the best interests of the adult patients of C Inc, the impracticability of complying with the Notice and the possibility that the required information might have been obtained by other means. 39 In answer, the respondents contended that on its proper construction the Act did not give rise to any obligation on the part of the Examiner to take account of these considerations. They argued that where a statute confers a general discretion on a decision-maker without specific reference to relevant factors, a technical approach to its interpretation should be avoided (O'Sullivan v Farrer (1989) 168 CLR 210 at 216, 217) and that it was for the decision maker to determine which factors were relevant and their comparative importance (Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at 375 per Deane J). 40 The starting point must be the content of the power conferred by s 29 to request the documents. This power extends only to documents "relevant to a special ACC operation/investigation" (s 29(1)(b)). In this case, the special ACC investigation is an investigation into matters relating to Indigenous violence or child abuse as defined in s 4 of the ACC Act. The Examiner must be "satisfied that it is reasonable in all the circumstances" to issue a notice under s 29(1A) requesting those relevant documents. The Examiner's satisfaction that it is reasonable to request the documents provides the only presently relevant express limitation on the power. None of the considerations which the appellant contends must be taken into account is the subject of an express obligation under s 29 of the ACC Act and so, if the Examiner is under such an obligation, that obligation must be implied from the construction of the statute: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 (Peko-Wallsend) at 39-40 per Mason J, 55-6 per Brennan J. 41 The content of the obligation is dependent not only upon the implications that may be drawn from the construction of the statute but upon the subject matter and context in which the impugned decision is made. It is important to bear in mind, as this Court noted in NTD8 at [63],that the power in s 29 of the ACC Act to obtain documents by compulsion intrudes upon a person's entitlement to keep his or her documents private and confidential - a concern that is particularly acute in a case such as this where those documents are of a very personal and sensitive character.

[19]

The first consideration: was the Examiner obliged to consider the interests of the adult patient and, if so, was that obligation shown not to have been discharged? 42 The appellant contends that the primary judge failed to consider the foundational question as to whether the Examiner was required to take into account the best interests of the adult patients as a relevant primary consideration, or, alternatively, as a relevant consideration. The consideration of the best interests of the adult patients was said to require consideration of the public health concerns deposed to in the affidavit of Dr B and particularised above at [17] (d) - (h) and [18] (c). Those concerns, characterised as the consequences that would or could arise from a breach of patient confidentiality, were summarised in the appellant's written submissions as: · impact on patients of C Inc from loss of confidentiality and control over medical records especially if allegations of abuse are communicated to perpetrators without permission; · impact on the health and well-being of patients or potential patients of C Inc who would not access health services because of loss of trust and confidence in the confidentiality of their medical records; and · impact on the health and well-being of children whose mothers would not access health services. 43 The asserted failure of the primary judge was said to have arisen because the primary judge 'misconstrued' the affidavit evidence of Dr B as applicable to the child patients only, so that his Honour did not address the public health concerns insofar as those concerns related to the adult patients (at [108] of the primary judgment). It is true that Dr B's affidavit contains many references to 'young people' and that, read as a whole, his emphasis is upon youth. There are, however, many expressions that make it plain that, whilst the emphasis is upon youth, older people are not excluded from consideration. We agree with the submission of the appellant that the frequent use of the term 'young people' in the context of the affidavit as a whole shows that Dr B was not concerned to confine his observations to persons who could be described as 'children'. There are several references that specifically enlarge the subject matter to include young adults, ie persons under 25 years of age. 44 The next step of the appellant's submission, contingent upon the Court accepting that the evidence of Dr B was also relevant to the adult patients, is that the learned judge should have reached the same conclusion regarding the adult patients that his Honour reached regarding the child patients, ie that the Examiner was required to and did not consider those public health concerns (and therefore the best interests of the adult patients) as a relevant primary consideration or, alternatively, as a consideration. Unsurprisingly, given that the notion of a 'primary' consideration had its foundation in the Convention, the appellant's oral submissions on this point were couched in the language of relevant considerations and we do not understand counsel to have pressed the argument that the interests of the adult patients had to be considered as a 'primary' relevant consideration. We return to the point about 'primary considerations' in our consideration of the cross-appeal below at [101]. 45 The requirement for the Examiner to consider the best interests of the adult patients as particularised in terms of public health concerns was said to arise from the obligation to consider whether it was reasonable in all the circumstances to issue the Notice in the context of the "subject matter, scope and purpose" of the Northern Territory National Emergency Response Act 2007 (Cth) and the Amending Act. The object of the Intervention - "to improve the wellbeing of certain communities in the Northern Territory" (s 5 of the Northern Territory National Emergency Response Act 2007 (Cth)) - and the designation by the Amending Act of "Indigenous violence and child abuse" as a federally relevant criminal activity (s 4 of the ACC Act) was said to lead to the conclusion that the "plain and, indeed, express primary object of the Intervention, at least in relation to the ACC's duties, is to improve the lives of the victims of Indigenous violence and child abuse". In this regard, counsel made the point that the specific group of intended primary beneficiaries of the Intervention was the same group whose interests might be compromised by the Notice, so that the primary judge had been correct in concluding that there was "very little if any room for competition between [these] competing interests" (at [76]). Essentially, counsel submitted that consideration of "all of the circumstances" necessarily required the Examiner to consider that employing a coercive power to intrude upon the right of the adult patients to control the confidentiality of their medical records involved a real and obvious risk of compromising the objectives of the Parliament in enacting the Intervention legislation. Thus, it was said, a duty to consider the public health concerns summarised at [42] above arose. 46 Counsel made a related point that the Examiner could not adequately consider those risks without considering what use would be made of the information once received. Relevant to this point was the appellant's contention that the Examiner misconstrued the concern raised by C Inc as to how the ACC would use the information as a concern that the confidentiality notation set out at [11] above would not be sufficient to prevent patients and potential patients from finding out about the Notice. Oral argument on this point centred upon whether the Examiner had in fact considered why the documents sought were necessary to give effect to the Determination. Counsel for the ACC and the Examiner pointed to evidence given by the Examiner that he considered that the data were required for study and assessment. Moreover, the information sought could be used as the basis for people to be summoned for examination under the ACC Act and to support prosecutions. That would, of course, require a further decision. 47 The question whether the Examiner was bound to take into account the interests of the adult patients identified at [42] above in considering whether he was satisfied that it was reasonable in all the circumstances to issue the Notice is sufficiently answered by reference to the decision of the Court in NTD8. In NTD8 the Court held (at [65]) that s 29(1)(a) of the Act carried with it a "clear implication" that the interests of a group of Indigenous child patients of an Aboriginal community-controlled primary health services provider was a matter required to be taken into account by an examiner when deciding whether or not to issue the notice. In doing so, the Court emphasised - and we should again emphasise here - the particular context in which the power was to be exercised. Although, in the present case, the risks for the adult patients might be seen as perhaps less acute than those relating to the child patients in NTD8, they are essentially of the same character. 48 It should be noted that in NTD8 the Court did not rely upon the explanatory memorandum to the Amending Act, the Convention, or the decision in Teoh to inform the meaning of s 29 of the ACC Act or the content of the obligation that might arise in the exercise of the power conferred by s 29. As the discussion in NTD8 at [70] shows, the essential point is that as a matter of statutory construction the precondition in s 29(1A) of being "satisfied that it is reasonable in all the circumstances" to issue the notice may involve - depending upon all the circumstances - the requirement to take a particular matter into account. This is not, of course, to say that a person challenging the exercise of such a power may create a list of matters that it would be desirable to take into account; the Court was concerned in NTD8 with matters of imperative relevance to the satisfaction that it was reasonable in all the circumstances to issue the notice. The Court's reasoning in NTD8 leads to the conclusion in the present case that the interests of the adult patients was a matter of imperative relevance to the satisfaction that it was reasonable in all the circumstances to issue the Notice. 49 The next issue therefore is whether, as the appellant contended and the respondents disputed, the trial judge erred in not finding that the Examiner had failed to take into account those interests when making his decision to issue the Notice. 50 Counsel for C Inc correctly pointed to the absence of any direct reference to this aspect in his Honour's reasons. Whilst his Honour considered at length whether the Examiner took account of the interests of the child patients (see at [75] - [93]) there is no equivalent consideration of whether the Examiner took into account the interests of the adult patients. The respondents, however, answer this by drawing attention to [101] of the reasons where the primary judge accepts that the Examiner had regard to Ms B's affidavit, and [106] of the reasons where the primary judge accepts the Examiner's evidence that he did take into account the concerns of C Inc "in the form of the original application and the affidavits from Ms B and Ms C" insofar as they apply to the adult patients of C Inc. 51 In his Statement of Reasons the Examiner adopted by reference the Legal Submission in support prepared by his assisting counsel, Mr Ladley. The Legal Submissions include a statement that: C Inc also raised the issue that in complying with the Notice it would have an impact (by disclosing client's details) on the relationship with clients and their future attendance at the clinic. In the hearing before the primary judge the Examiner also gave affidavit evidence that, following discussions with Mr Ladley, he had taken into account: …a perceived breach of patient confidentiality in revealing the names and details of clients (as deposed to in the affidavit of [Ms B] affirmed on 8 May 2008… and the claim that such disclosure may impact on clients attending [C Inc's] clinic in the future. 52 Counsel for the appellant contested the argument that this evidence indicated that the Examiner had considered all the concerns that might arise from a breach of patient confidentiality set out at [42] above. Whilst at the hearing of the appeal counsel for the appellant accepted that the Examiner "did reflect on [C Inc's] objections and the impact that it might have", but argued that it was insufficient for the Examiner to deal only with C Inc's objections (see at [91]); the Examiner must turn his mind to the real potential impact on the interests of the patients if the use of the power were to override important legal rights. 53 The affidavits to which the trial judge referred do outline the concerns about the interests of the patients, both adult and children. The references are quite brief but the essential point is clearly made. It is true that the trial judge referred to the affidavit of Ms B at [101] in the context of concerns about practicability of compliance and to the affidavits of Ms B and Ms C at [106] in the context of whether the Examiner accorded C Inc natural justice, but this does not, in the circumstances, detract from the finding of the primary judge that the Examiner took account of the concerns expressed in those affidavits and the original application. However, the primary, and possibly the only, resource to determine whether the Examiner had regard to the interests of the patients of the appellant, both adult and children, must be the Examiner's reasons prepared in accordance with s 29(1A). 54 Although we do not have to decide the issue in the present case, the evident policy objective of s 29(1A) would provide strong support for the conclusion that deficiencies in the s 29(1A) reasons cannot be made good by material altogether extraneous to the s 29(1A) statement. 55 The evident purpose of the statutory obligation to give such reasons, notwithstanding that they need not be given to the recipient of the notice, is to provide a reference point against which the fulfilment of the obligation to be satisfied that it is reasonable in all the circumstances to issue the notice may be determined. It may well be inconsistent with the object of s 29(1A) for an examiner to have the capacity to withhold reasons or, at some later time, when the decision is challenged, to provide other or further reasons different from those given in the written record of the reasons to justify the exercise of the power. 56 Reference to other or further reasons, not recorded, would also be inconsistent with the purpose of s 29(1A) to impose upon the decision-maker the intellectual rigour that the formulation and recording of reasons ought to require. 57 The Examiner's reasons for deciding to issue the Notice in relevant respects are in the same terms as those considered by the Court in NTD8. After identifying the material to which he had regard, namely a Statement of Facts and Circumstances dated 16 May 2008 and Legal Submissions dated 16 May 2008 and the purpose of the Notice, the reasons state: Based upon my consideration of the statement of facts and circumstances and the legal submissions which are referred to above: 1) I was satisfied that the operation was within the terms of the Determination and that the Determination was still operative. 2) I was satisfied that it was reasonable in all the circumstances that the Notice be issued to the party to whom it is directed. 3) I was satisfied that it was reasonable in all the circumstances that the Notice be issued in the terms approved by me. 4) I was satisfied that this was an appropriate Notice for the inclusion of a notation pursuant to subsection 29A(1) of the Australian Crime Commission Act 2002 because if such a notation were not included it would reasonably be expected to prejudice the effectiveness of the operation or investigation and that a failure to do so might be contrary to the public interest. 5) I was satisfied that it was also appropriate that the notation pursuant to subsection 29A(1) of the Australian Crime Commission Act 2002 be in the terms approved by me. 58 As noted in NTD8 at [23]-[27], that content could be prepared merely as a recital of the requirements of s 29 and s 29A without reference to any information at all. 59 For the purpose of determining whether the Examiner took into account the interests of adult Aboriginal patients of C Inc who were or may be victims of domestic violence assaults or sexual assaults, it is, however, appropriate to have regard to the material to which the Examiner referred in his reasons: see NTD8 at [73]. Similarly, in Minister for Immigration and Multicultural Affairs v W157/00A (2002) 125 FCR 433 at [39] Branson J (with whom Goldberg and Allsop JJ agreed) said that the Minister's obligation under s 501G(1) of the Migration Act 1958 (Cth) to provide reasons for a decision to cancel a visa may be satisfied by the Minister adopting written reasons prepared by a departmental officer, provided those reasons are the reasons of the Minister for reaching the decision. (That decision ultimately turned upon the failure of the Minister to comply with s 501G(1)(e) by giving the visa holder a written notice that set out the reasons for the decision to cancel the visa, because the Minister had not in fact given a written notice of the decision which set out those reasons.) 60 In the Legal Submission in Support, incorporated by reference into the Statement of Reasons, reference was specifically made to the concern of C Inc noted at [51] above that in complying with the Notice it would have an impact (by disclosing clients' details) on the relationship with clients and their future attendance at the clinic. 61 Although that was a reference to the material provided in support of the application to issue the earlier Notice, it does raise the point of substance, such that it cannot be said, in our view, that the Examiner was shown not to have taken that matter into account when deciding to issue the Notice. 62 For the purpose of determining the validity of the decision to issue the Notice, in our view, the reasons of the Examiner do not expose a failure to have regard to that matter.

[20]

The second consideration: was the Examiner obliged to consider whether compliance would be impracticable or costly for C Inc and, if so, was that obligation shown not to have been discharged? 63 The second element to the first ground of appeal was that the trial judge erred in not finding that the Examiner had failed take into account as a relevant consideration the impracticability of complying with the Notice. This error was said to have arisen because the primary judge did not consider the ambit of the work required to comply with the Notice and therefore did not, and should have, found that the cost of, and funding for, compliance with the Notice made it impracticable for C Inc to comply. (A related point made by the appellant was that the respondents should have considered the cost of compliance because it raised directly a "stark choice" for C Inc between breaching the Agreement by applying its funding to comply with the Notice or committing an indictable offence by failing to comply with the Notice. The respondents' answer was that the Agreement posed no legal impediment to complying with the Notice. We will deal with this aspect of the appellant's argument in considering the third way in which the appellant argued the first ground of appeal.) 64 Counsel for the respondents, whilst denying that the Examiner was obliged to consider the practicability of compliance, sought to uphold the finding of the primary judge that the Examiner had in fact taken that matter into account. His Honour had concluded that "whether or not the Examiner was required as a matter of law to take into account as a relevant consideration the difficulties of compliance with the original notice identified in [Ms B's] affidavit, the fact is he did" (at [101]). 65 In support of its contention that the Examiner was not obliged to take impracticability into account as a relevant consideration, counsel for the respondents in their written submissions relied upon decisions about what were said to be the analogous provisions of s 155 of the Trade Practices Act 1975 (Cth) and s 264 of the Income Tax Assessment Act 1936 (Cth) as authority for the proposition that the power to issue the notice was not circumscribed by the burden or expense of complying with it (see Riley McKay Pty Ltd v Bannerman (1977) 31 FLR 129; FH Faulding & Co Ltd v Commissioner of Taxation (1994) 54 FCR 75 at 126). 66 In contending that the Examiner did in fact take into account the burden that compliance would impose upon C Inc, the respondents pointed to the findings of the primary judge at [101] and [108] that the Examiner had given evidence that he took account of the concerns expressed in Ms B's affidavit relating to resources and costs before issuing the Notice and that he had narrowed its scope accordingly. As will be recalled there were two notices. The second notice - the Notice - provided for a longer period for compliance and sought C Inc's records over a much shorter period - 3 months instead of 27 months for the adult patients. Moreover, counsel contended, the Notice sought records only from C Inc's principal office. 67 The evidence which the appellant contended that the primary judge should have, but did not, consider was that part of Ms B's affidavit dealing with C Inc's financial resources, which stated: [C Inc] simply do not have the financial resources or the workforce availability to comply with the notice to produce and no financial assistance has been proffered by the issue of the notice to assist us financially to comply. If in the absence of such financial assistance we are simply unable to comply at all, even if financial assistance was forthcoming, we would then need to be able to recruit a suitably qualified health professional to undertake the necessary file audits. 68 But this evidence related to the first notice and counsel for the respondents pointed out, and counsel for the appellant admits, that C Inc did not put on any evidence specifically to address the difficulty of complying with the second notice, ie the Notice. Nevertheless the appellant contended in its written submissions that the primary judge erred in finding that there was no evidence as to any difficulty C Inc may have in complying with the Notice, arguing that the primary judge should have inferred from the evidence about the difficulties of complying with the first notice that difficulties of a similar kind were likely to arise. 69 Whether or not the Examiner was required to take such matters into account, the short answer made by the respondents is correct: the trial judge found that the Examiner did take those matters into account and there was material upon which he could properly have done so. In circumstances where C Inc had not filed any evidence about the difficulties of complying with the Notice, it was open to the primary judge to conclude that the concerns raised by C Inc in its affidavits concerning the first notice had been addressed by the issue of the Notice. If C Inc had wished to put on evidence about difficulties it might have complying with the Notice, that course was open to it. Given the difference between the two notices with regard to scope and time for compliance, no inference could be drawn from the evidence concerning the first notice as to the difficulty of complying with the second. 70 In our view the conclusion reached by the primary judge on this point was correct.

[21]

The third consideration: was the Examiner obliged to consider whether the information sought by the Notice could be obtained by other means and, if so, was that obligation shown not to have been discharged? 71 The third and final part to the first ground of appeal was that the learned judge erred in not finding that the Examiner had failed to take into account, as a relevant consideration, the circumstance that the information sought by the notice was obtainable under the Agreement. It is hard to see how there could be any error in this respect, since it was not in dispute that the Examiner, although aware that C Inc was funded by the Commonwealth, was unaware of the Agreement when he issued the Notice. 72 In any event, the respondents' answer to this contention asserted the correctness of the primary judge's conclusion at [104] that the exercise of the power was not confined by the fact that the information may have been available from some other source, if indeed it was. To this answer, counsel for the appellant submitted that whilst the Examiner undoubtedly had power to issue notices under s 29 notwithstanding the availability of information from other sources, it was important not to confuse the existence of the power with the considerations that he was required to take into account in its exercise. There is some substance in the appellant's argument that this rather misses the point - the point is not so much any limitations upon the exercise of the power but whether its due exercise required alternative sources to be taken into account. 73 In support of its contention counsel for the appellant referred the Court to provisions of the Agreement which provided for the disclosure of confidential information to the Commonwealth and access to premises and records. In particular, counsel pointed to the power under the Agreement for the Commonwealth to audit C Inc and inspect its records subject to countervailing responsibilities of confidentiality, secrecy and preservation of cultural information, including, under the Privacy Act, the de-identification of certain material. At the hearing of the appeal counsel for C Inc explained the Agreement in some detail and pressed the point that "the ultimate control over almost all, if not all, of [C Inc's] activities, rests with the Commonwealth, as a matter of practical reality." 74 Counsel for the respondents, however, denied that the Agreement provided a relevant alternative means of obtaining the information. In particular, counsel referred the Court to cl 25.1(a) of the Agreement which permitted compliance with lawful requests for information, the point being that the Notice was such a lawful request and therefore compliance with it fell within C Inc's obligations under the Notice. Counsel also made the point that obtaining information under the Agreement would not protect absolutely the confidentiality of the patients' medical records. 75 It is far from clear that the terms of the Agreement would have provided the alternative source of information for which the appellant contends. The appellant correctly asserted that the Commonwealth was entitled under the Agreement to authorise a person to access the premises, inspect and copy materials for purposes associated with the Agreement or any review of performance under the Agreement (cll 11.1 to 11.2). Yet a closer examination of the Agreement reveals that C Inc was obliged to "provide all assistance reasonably requested by the Commonwealth in respect of any inquiry into or concerning a Project or this Agreement" (cl 11.4). C Inc was also obliged to "provide any information in relation to a Project or the Organisation as requested by the Commonwealth for the purposes of this Agreement, including monitoring and evaluation" (cl 10.2). Further, as the respondents correctly pointed out, cl 25.1(a) of the Agreement provided for C Inc to comply with all relevant Commonwealth laws and requirements of any Commonwealth authority as a condition of the Agreement. As far as confidentiality was concerned, the Commonwealth expressly disclaimed any undertaking to treat C Inc's information as confidential and C Inc acknowledged that the Commonwealth may disclose information relevant to the Agreement to any person (cl 22.6). That clause specifically referred to disclosure "to the extent required by law or by a lawful requirement of any government or governmental body, authority or agency… for public accountability reasons, including disclosure on request to other Government Agencies…or for any other requirement of the Commonwealth". Disclosure may extend to information of a sensitive or cultural nature in certain circumstances (cl 23.11). The appellant did not articulate the means by which the information provided by the Notice could be obtained under the Agreement without similar concerns about confidentiality or cost arising. Nor did it articulate why compliance with the Notice would fall outside its obligation under cl 25.1(a) to comply with the requirement of a Commonwealth authority. 76 In these circumstances we are not persuaded that the due exercise of the power required the Agreement to be taken into account in the present case, even if (contrary to the evidence) the Examiner knew of the content of the Agreement. This is not to deny that a situation might be envisaged in which the availability of information from other sources, without the use of coercive powers and without the confidentiality protection provided by s 29A, would be of such importance to the forming of a satisfaction under s 29(1A) that an examiner would be obliged to take that circumstance into account; but that situation is well removed from the present case. In our opinion, this ground of appeal must fail.

[22]

The second ground of appeal: an obligation to make enquiries? 77 By its second ground of appeal the appellant contended that the Examiner was bound to identify and make enquiries about circumstances material to his decision about which it was said he had inadequate information. The circumstances about which it was said the Examiner had inadequate information were the likely impact upon the adult patients and C Inc of compliance with the Notice, and whether the information could be obtained by other means. The appellant contended that, because of the Examiner's failure to make the enquiries it says he should have made, his decision to issue the Notice should be set aside for the reason that no proper consideration had been given to a relevant matter or upon the distinct ground that it was unreasonable to make the decision without the suggested further inquiries. 78 Counsel for the respondents argued that there was no foundation in fact or in law for the appellant's contention that there was a duty to identify relevant circumstances, and that, in any case, the claimed circumstances were not relevant. Counsel referred the Court to Djalic v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 292 at [83] and Le v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 521 at [103] (applying Djalic). In Djalic the Court held that no duty to inquire arose where the appellant did not avail himself of an opportunity to provide more detailed information, where no principled basis was suggested for the assertion that the decision-maker was bound to make further inquiries, and where the case did not come within any of the three categories identified by McHugh J in Teoh. The three categories identified by McHugh J in Teoh, where a failure to make further inquiries had been held to constitute an improper exercise of power or a failure to take into account a relevant consideration, were (at 321): (1) a specific matter was raised by an applicant or was within the knowledge of the Minister and that matter could not be properly considered without further inquiry [eg, Lek v Minister for Immigration, Local Government and Ethnic Affairs [No 2] (1993) 45 FCR 418; Akers v Minister for Immigration and Ethnic Affairs (1988) 20 FCR 363; cf Singh v Minister for Immigration and Ethnic Affairs (1987) 15 FCR 4]; (2) the information before the Minister was not up to date [eg, Tickner v Bropho (1993) 40 FCR 183] or (3) the absence of information before the Minister resulted from the Minister's officers misleading the applicant [eg, Videto v Minister for Immigration and Ethnic Affairs (1985) 8 FCR 167] . Although the appellant did not specifically refer to these categories, its arguments were directed toward matters within the first category. 79 The first aspect of the appellant's argument was that the Examiner should have made inquiries about detriment (of the kind identified at [42] above) that could be suffered by adult patients of C Inc from the issue of the Notice. This submission relied upon the proposition identified in Waniewska v Minister for Immigration and Ethnic Affairs (1986) 70 ALR 284 at 299 and Teoh v Minister for Immigration, Local Government and Ethnic Affairs (1994) 49 FCR 409 at 413 that there are occasions when the adequate consideration of a relevant matter necessarily involves the making of some inquiry as to the facts. This aspect of the appellant's submission need not, however, be considered having regard to our conclusions on the first ground of appeal. Of the circumstances concerning which the appellant contends the Examiner was bound to make inquiries, the appellant has demonstrated only that the first circumstance was a relevant consideration and that is a circumstance which we have concluded the Examiner did take into account. 80 The second aspect of the appellant's submission relied on the authority of Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 (Prasad) at 169-70 and Tickner v Bropho (1993) 40 FCR 183at 197 - cases in which the Court held that a failure of a decision-maker to make a further inquiry about a particular matter rendered the making of the decision an improper exercise of power in that the decision-maker made an unreasonable decision. In Prasad at 169-170, Wilcox J expressed the tentative view that in considering the relevance to the issue of reasonableness of certain material that was not before the decision-maker, the Court was entitled to consider those facts which were known to the decision-maker, actually or constructively, together only with such additional facts as the decision-maker would have learned but for any unreasonable conduct by him. His Honour observed that: Under s 5(1)(e) and s 5(2)(g) the court is concerned with the manner of exercise of the power. A power is exercised in an improper manner if, upon the material before the decision-maker, it is a decision to which no reasonable person could come. Equally, it is exercised in an improper manner if the decision-maker makes his decision -- which perhaps in itself, reasonably reflects the material before him -- in a manner so devoid of any plausible justification that no reasonable person could have taken this course, for example by unreasonably failing to ascertain relevant facts which he knew to be readily available to him. The circumstances under which a decision will be invalid for failure to inquire are, I think, strictly limited. It is no part of the duty of the decision-maker to make the applicant's case for him. It is not enough that the courts find that the sounder course would have been to make inquiries. But, in a case where it is obvious that material is readily available which is centrally relevant to the decision being made, it seems to me to proceed to a decision without making any attempt to obtain that information may properly be described as an exercise of the decision-making power in a manner so unreasonable that no reasonable person would have exercised it. 81 Section 29(1A) positively obliges an examiner, before issuing a notice under s 29(1), to be satisfied that it is reasonable in all the circumstances to do so. That is an obligation of substantial content. It reflects the responsibility of an examiner to have regard to the nature of the power that may be exercised and its impact on those to whom a notice may be given. Clearly, to fulfil that responsibility, an examiner may sometimes need to make, or to cause to be made, further inquiries before deciding to issue a notice, although certain of the remarks of Wilcox J in Prasad may not directly apply. That case concerned the exercise of a decision-making power where the visa applicant had the opportunity of presenting material in support of the visa application. In making a decision under s 29(1), an examiner will not routinely have the benefit of such material. No doubt that is one of the reasons why s 29(1A) is enacted in its terms. In the particular circumstances of this matter, however, where the earlier notice had been withdrawn after receipt of material from C Inc to challenge its validity, the Examiner has had the benefit of such material in any event. In such circumstances, as was the case in Prasad, it is appropriate to ask whether there was material readily available and centrally relevant to the decision which the Examiner unreasonably failed to obtain. At [48] above we concluded that a consideration of the interests of the adult patients was indeed a matter of central relevance to the Examiner's decision. In light of our conclusion at [62] above that the Examiner did in fact take account of this consideration, the argument that the Examiner unreasonably failed to obtain readily-available information about this consideration cannot be sustained. Accordingly this aspect of the appellant's submission must fail. 82 The second aspect of the duty to inquire was said to arise in relation to the impracticality, but not the cost, of complying with the Notice. Absent further inquiry the Examiner was said to have had "no basis for assuming that it was practical for the appellant to comply with the Notice". This aspect of the appellant's argument must be rejected. As discussed at [63] - [68] above, the appellant's submissions that the practicality of compliance was a consideration the Examiner was bound to take into account were far from persuasive. In any case, as we concluded at [70] there was sufficient material upon which the primary judge could have found that the Examiner did take account of the difficulties to which the affidavit of Ms B adverted. In these circumstances the contention that the Examiner unreasonably failed to ascertain relevant facts which he knew to be readily available to him cannot be sustained. 83 Finally, the Examiner was said to be under a duty to inquire about alternative means of obtaining the information. The appellant contended in its written submissions that, given the obviousness of the alternative means of obtaining with the information, the Examiner should have made inquiries of the Commonwealth Department of Health and Ageing "to determine whether it offered a viable and, indeed, better alternative." For the reasons already given at [71] - [76] above, it is far from clear that the Agreement did provide an alternative means of obtaining the information about which the Examiner was bound to inquire. Accordingly this aspect of the appellant's submission must also be rejected.

[25]

Sufficiency of reasons 88 As to the first aspect, counsel for the appellant asserted that, properly characterised, the Examiner's 'reasons' amounted merely to a conclusion without reasons to support it. 89 We agree that the sufficiency of the Statement of Reasons was open to criticism. The appellant was correct to draw attention to what counsel described as the 'formulae approach' of the reasons and to the importance of observing the requirements of s 29(1A). As Flick J observed in AB Pty Ltd v Australian Crime Commission (2009) 175 FCR 296 (AB)at [54], an observation that was endorsed by this Court in NTD8 at [73], "[t]hose against whom the powers conferred by the 2002 Act are exercised are entitled to have confidence that the power is being lawfully invoked". In NTD8, as here, the Statement of Reasons, the Statement of Facts and Circumstances and the Legal Submissions in Support were formulaic and uninformative and did not focus attention on the specific considerations to which the Examiner had regard. Again they seem to bear the hallmarks of a standard form document (see the observations of this Court in NTD8 at [34]; Flick J in AB at [54] and Besanko J in GG v Australian Crime Commission [2009] FCA 759 at [51]). However, deficiencies of this nature will not necessarily invalidate a notice: see, for example, AB at [59] perFlick J and SS v ACC [2009] FCA 580 at [97] per Jagot J. 90 It should also be noted that in AB counsel for the ACC conceded that the content of the obligation in s 29(1A) was informed by s 25D of the Acts Interpretation Act 1901 (Cth) (which obliges a decision-maker required to give written reasons for a decision to "set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based"). In this case the respondents made no such concession but asserted - correctly in our opinion - that s 25D of the Acts Interpretation Act was not engaged by the obligation under s 29(1A) since that requires the examiner to record, but not to 'give', written reasons for the decision. That this is the correct approach is confirmed by decisions about the analogous provision in s 28(1A) of the Act: see Barnes v Boulton (2004) 139 FCR 356; SS v ACC [2009] FCA 580 at [90]; AA v Board of the ACC [2009] FCA 642 at [30]; GG v ACC [2009] FCA 759 at [45]. 91 Even if, however, s 25D of the Acts Interpretation Act were engaged and the Examiner's reasons were found not to satisfy its requirements, we would agree with the respondent that the validity of the notice would be unaffected because the explicit language of s 29(5) of the Act (set out at [10] above) would save the notice from invalidity. 92 Counsel for the appellant also argued that the 'reasons' were demonstrably incomplete because the Examiner's affidavit referred to material to which reference was not made in the Statement of Reasons and the two incorporated documents, one entitled Statement of Facts and Circumstances and the other called Legal Submissions. The primary judge also treated the Examiner's affidavit and the evidence he gave in cross-examination as revealing his reasons. 93 Whether the primary judge should have gone outside the Statement of Reasons and incorporated documents to consider the affidavit and evidence given in cross-examination was a matter of contention between the parties. The appellant contended that the Examiner's affidavit expanded significantly upon the material that was before him at the time he made the decision and should not have been treated as part of his 'reasons' within the meaning of s 29(1A). Counsel pointed to evidence given by the Examiner in cross-examination of what were said to be other 'reasons', including that he did not consider the cost of compliance relevant to his decision, that he did not seek information about the size of the task involved in complying, that it was not the practice to make an inquiry of someone from whom he wanted the information, and that he had relied upon a conversation to which he did not refer in his reasons. The respondents contended that the primary judge was correct to treat the affidavit of the Examiner as part of the reasons and that the omission of a matter from the Statement of Reasons does not require the court to infer that the Examiner did not have regard to that matter at the time of making the decision: Our Town FM Pty Ltd v Australian Broadcasting Tribunal (1987) 16 FCR 465 at 476-7. 94 As this Court observed in NTD8 (at [41]), s 29(1A) does not accommodate oral supplementation of reasons, because it requires the contemporaneous or almost contemporaneous written record of the reasons. The Court noted, however, that there may be a difference between evidence adding additional reasons to those given in writing in accordance with s 29(1A) and evidence explaining in more detail a matter specifically adverted to in the written reasons. In this case the evidence that the appellant contends constitutes additional 'reasons' for the Examiner's decision is of the latter kind. The appellant's Statement of Reasons, incorporating as they do the Statement of Facts and Circumstances and Legal Submissions in Support, are sufficient to meet the description of 'reasons' within the terms of s 29(1A) for the purposes of determining whether the Examiner has had regard to relevant factors in making the decision to issue the notice. We have addressed that issue at [54] - [62]. Otherwise, as we have concluded at [91], the validity of the Notice is not affected by the existence or otherwise of the reasons because of the explicit language of s 29(5).

[26]

Obligation to give reasons 95 The appellant's oral submissions in support of the fourth ground of appeal were directed primarily to the second aspect - the consequences of a failure to provide C Inc with a copy of the reasons - and focused on the purpose of the reasons and whether failure to provide them constituted an error of law or a failure to observe procedures required by the law. These submissions were founded upon the fact that the Examiner did not provide C Inc with a copy of its reasons; C Inc obtained them by discovery in the course of the proceedings. 96 As to the purpose of the reasons, the appellant's essential point was that although the legislation does not provide specifically for a right to reasons for the decision, such a right should be implied by reason of the existence of the right to judicial review of the decision, the terms of s 29(1A) itself, and the requirements of s 25D of the Acts Interpretation Act.The submission that the ACC was under an obligation to serve a statement of reasons must fail. There is no room for the suggested implication, especially since, as we have held, s 25D of the Acts Interpretation Act does not apply to s 29(1A) of the Act (see above at [90]) and since the obligation is to record, rather than give, reasons. The better view is that expressed by Finn J in Barnes v Boulton (2004) 139 FCR 356at [29] in relation to the analogous provisions of s 28(1A) that the omission of any express obligation to give, or any right to receive, reasons should be seen as deliberate. We see no basis for distinguishing Barnes v Boulton,by reference to the quite different situation considered by Smith J in Australian Crime Commission v Magistrates Court (Vic) (2007) 173 A Crim R 572where the matter in issue was a subpoena. Finally, it cannot be that the right to judicial review - at least insofar as the right is founded upon the provisions of the ADJR Act - founds an implied obligation to serve written reasons in circumstances where decisions of the ACC in relation to intelligence operations are expressly exempted from the requirement to give reasons under s 13 of the ADJR Act (see s 13(11)(c) and Schedule 2 of the ADJR Act). 97 For the foregoing reasons this ground of appeal should be rejected.

[27]

THE CROSS APPEAL 98 The respondents cross-appealed from the decision of the primary judge to set aside the part of the Notice that related to the medical records of the child patients. His Honour was said to be in error in finding that the Examiner had failed to accord the child patients procedural fairness. It was said that the Examiner failed in this respect by not giving notice that, as his Honour found, he would not treat the best interests of the child patients as a primary consideration when there was a legitimate expectation that he would do so. 99 The respondents argued that the primary judge erred in applying Teoh in finding that the Examiner was under an obligation to treat the interests of the child patients as a primary consideration or to inform them that he did not propose to do so and to give them an opportunity to be heard in opposition. The respondents contended that Teoh should be seen as a case of very limited application and that whatever it decided, it was distinguishable and any principles to be derived from it had no application in the present context. 100 We find it unnecessary to consider Teoh and the conclusions that the primary judge drew from it, because we agree that no occasion arose for it to be applied in the present case. This is because, contrary to the submissions of the ACC and the Examiner, we have concluded, as we did also in NTD8, that in the particular statutory context, the Examiner was obliged to have regard to the interests of the child patients as a relevant matter. In NTD8 we explained that, in the context of the scope and purpose of the provisions of the ACC Act relevant to the Determination, "the clear implication of s 29(1A) is that the interests of Indigenous children is a matter required to be taken into account by the Examiner when deciding to issue the Notice" (at [65]). The same conclusions inevitably follow in the relevantly very similar circumstances of the present matter. This conclusion also makes it unnecessary to consider the issue raised by the appellant's notice of contention in the cross-appeal seeking to uphold the decision of the primary judge on the ground that the requirement to take into account the best interests of the child patients was a matter of substantive law. 101 We also adopt what we said in NTD8 at [56] about the absence of any need to draw any fine distinctions between the notions of a 'primary relevant consideration' and a 'relevant consideration' in circumstances where the essential point is that the consideration in question is one that the decision-maker was bound to take into account. 102 We then need to consider whether - as the ACC and the Examiner contend - the learned judge should have found that the Examiner did in fact take into account the best interests of the child patients as a relevant consideration. The task of the Examiner was to consider the best interests of the child patients because, in the circumstances, that was a consideration inevitably relevant to the satisfaction to be reached under s 29(1A) of the ACC Act. The evidence of the Examiner about the considerations he took into account was summarised by the primary judge at [80] - [91]. 103 The judge approached the matter by considering the Examiner's statements in his affidavit, which annexed his Statement of Reasons, Statement of Facts and Circumstances and Legal Submissions in Support, and evidence he gave under cross-examination. His Honour found that in none of the evidence did the Examiner expressly or implicitly refer to the best interests of the child patients as a consideration, much less a primary consideration, or assess what the best interests of the child patients may be in the circumstances (see at [81], [83], [85], [87], [91] and [93]). . 104 His Honour noted that the evidence given by the Examiner included the following comment in the Legal Submissions incorporated by reference in the Statement of Reasons, which we have already noted in the context of the appeal (see at [51] and [60] above): C Inc also raised the issue that in complying with the Notice it would have an impact, (by disclosing client's details) on the relationship with clients and on their future attendance at the clinic. The primary judge found that this statement appeared to refer to statements made by Ms B and Ms C in their affidavits and that because Ms B distinguished between child and adult patients and the Examiner did not, it suggested that the Examiner had not turned his mind to the particular interests of the child patients. 105 The primary judge also referred to evidence given by the Examiner in his affidavit and in cross-examination to the effect that he was aware of C Inc's concerns about the public health consequences of a breach of patient confidentiality, including the claim that child patients may be discouraged from accessing C Inc's services in the future. His Honour concluded that these statements indicated that the Examiner had assumed he needed to deal with the applicant's objections, but not that the Examiner had embarked upon an assessment of what the best interests of the child patients were or what their best interests called for in the circumstances. 106 The conclusion to be drawn from the material before the primary judge set out above does not relevantly turn upon the credibility of the Examiner. Whilst C Inc challenged the credibility of the Examiner at the trial, the primary judge rejected that challenge and it was not agitated on the appeal (see at [88] of the primary judgment). 107 As we noted in the context of the appeal, the primary resource to determine whether the Examiner had regard to the interests of the child patients must be the Examiner's reasons prepared in accordance with s 29(1A). The present issue - as to whether a relevant consideration was not taken into account - turns upon the those reasons, as explained by the material to which his Honour referred in his reasons for judgment. Making our own assessment of this material, as we were invited by the ACC and the Examiner to do, we are persuaded that had the primary judge approached the matter correctly, that is to say in the way we have indicated at [100] above, he should not have been persuaded that there had been a failure to take into account the interests of the children as a relevant consideration. The correct conclusion on the material is that the alleged failure to take into account a relevant matter was not made out. This is so notwithstanding the attractions of the approach favoured by the primary judge (see at [21] - [27] above) and notwithstanding that others might take a different view as to the outcome. The Legal Submissions in support do specifically refer to the concern about confidentiality and public health, albeit cursorily. That the Examiner had taken those matters into account was confirmed in his evidence. In those circumstances we are persuaded that the primary judge should have found that there was evidence that the Examiner had assessed the best interests of the child patients as a consideration. 108 Ultimately, the point is a narrow one; the impugned decision was made as a step in the process directed towards the ultimate amelioration of a situation of violence and sexual abuse of children. The decision was made in the context of an Intervention, the aims of which may be seen as being in the best interests of children and others subjected to violence and sexual abuse. To point this out is not to say that the adverse consequences of particular steps could be ignored but, as we have seen, the Examiner was alert to concerns about confidentiality and broader questions of public health and access to medical services. 109 This conclusion accords with the conclusion we reached in the very similar circumstances of NTD8. In that case the Legal Submissions had referred to the concern that the production of confidential documents, if exposed to police or authorities, may dissuade Aboriginal children from attending for medical treatment at the clinic. The examiner had given evidence that he took into account the clinic's objections to production 'in particular in respect to their reasons for not wishing to disclose the names and details of certain children'. The primary judge had concluded on that evidence that the examiner did not make any assessment of what the best interests of the children were or what those interests called for in the circumstances. On appeal this Court found that the evidence did not establish that the examiner had failed to take into account those concerns. 110 In making that finding in NTD8 the Court expressed concern - a concern we express again here - that the power to request documents under s 29 is an extraordinary power; and the use of what might be taken as a standard form document to record reasons for its exercise is apt to create an apprehension that an examiner has not turned his or her mind to the particular circumstances that warrant its exercise.

C Incorporated v Australian Crime Commission [2010] FCAFC 4 | Case summary | Zoe

C Incorporated v Australian Crime Commission

At a glance

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Judgment (28 paragraphs)

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Legislation Cited (10)

Cases Cited (26)

Cited By (3)