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.