NTD8 v Australian Crime Commission [2008] FCA 1551 | Case summary

Judgment (10 paragraphs)

[1]

INTRODUCTION 1 NTD8 is an Aboriginal community controlled health organisation providing health services to the residents of Aboriginal communities, outstations and pastoral properties in the Katherine region of the Northern Territory. It has been given the pseudonym 'NTD8' to protect the privacy of those of its patients who may be affected by these proceedings. 2 In May 2008, the Australian Crime Commission ('ACC') served an amended notice on NTD8 under s 29(1) of the Australian Crime Commission Act 2002 (Cth) ('the ACC Act') requiring it to produce certain medical records and others documents held by it. In summary, the medical records related to the presentations by patients of NTD8 at clinics conducted by it, for treatment that may have been associated with family and domestic violence and/or other forms of assault including sexual assault. The ACC said that it required the medical records as a part of its Special Intelligence Operation into Indigenous violence or child abuse in the Northern Territory. 3 NTD8 had already commenced these proceedings to challenge the original notice which had been served by the ACC about a month earlier. When the amended notice was served, it amended its application in these proceedings to challenge that amended notice. The crux of NTD8's challenge to the amended notice is that Mr Anderson, the ACC Examiner who issued the amended notice, was required to take into account, as a primary consideration, the best interests of the children concerned, and he had failed to do so. 4 Before turning to consider those issues, it is necessary to briefly set out some of the factual background to these proceedings and to set out some of the relevant provisions of the ACC Act. In doing so, I will necessarily duplicate some of the material I set out in my earlier decision on the application by NTD8 that I should disqualify myself for apprehended bias (see [2008] FCA 984).

[2]

Was Mr Anderson required to take into account the best interests of the children concerned as a primary consideration? 23 At the outset, I should make it clear that it is not my function to review the merits of Mr Anderson's decision to issue the notice, or to substitute my own decision for his. Instead, my function is to ensure that Mr Anderson acted in accordance with the statutory provisions upon which he relied when issuing the amended notice: see Sean Investments v McKellar (1981) 38 ALR 363 at 375 per Deane J and Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24 ('Peko') at 40-41 per Mason J. 24 For present purposes, the operative words of s 29(1A) of the ACC Act are that the examiner "must be satisfied it is reasonable in all the circumstances" to issue the notice. Apart from the general reference to "all the circumstances", the section does not expressly state what considerations the examiner is to take into account. In that event, those considerations must be "determined by implication from the subject-matter, scope and purpose of the Act": see Peko at 39-40 per Mason J. 25 It is common ground between the parties that the best interests of the children concerned is a consideration which Mr Anderson was obliged to take into account in issuing the amended notice. The parties agree that, in the context of these proceedings, this flows from a number of matters including: the amendments made to the ACC Act by the FACSIA Act (see [20] above), the Minister's Second Reading Speech on the FACSIA Bill and the Explanatory Memorandum for the FACSIA Bill. 26 However, the point of departure between the parties is whether in issuing the amended notice, Mr Anderson was obliged to take into account the best interests of the children concerned as a primary consideration (emphasis added). NTD8 says he was, essentially relying upon the High Court's decision in Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 ('Teoh'). The ACC says that he was not. It says s 29(1A) of the ACC Act bestowed upon Mr Anderson a general discretionary power and, while he had to take into account the best interests of the children concerned as a consideration, he did not have to make it a primary consideration vis a vis other considerations such as the purpose and objects of the ACC Act, the determination issued by the Board of the ACC and the Special Intelligence Operation. 27 In my view, NTD8 is correct in its submissions. So much is clear, in my view, from what the High Court said in Teoh. In that case, the High Court had to consider what effect Australia's ratification of the Convention on the Rights of the Child had on administrative decision-makers when they were making decisions affecting the interests of children. Of particular relevance was Article 3 of the Convention on the Rights of the Child which states: "In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration." 28 The majority in Teoh held that, absent statutory or executive indications to the contrary, Australia's ratification of the Convention on the Rights of the Child gave rise to a legitimate expectation that administrative decision-makers in decisions concerning children will take into account the best interests of the children concerned as a primary consideration and if they do not intend to do so, they should give the persons affected an opportunity to be heard: see Teoh at 291 per Mason CJ and Deane J, at 302 per Toohey J, and at 304 per Gaudron J (agreeing with Mason CJ and Deane J on this aspect). 29 In addition, Gaudron J expressed the view (at 304) that "quite apart from the Convention or its ratification, any reasonable person who considered the matter would, in my view, assume that the best interests of the child would be a primary consideration in all administrative decisions which directly affect children as individuals and which have consequences for their future welfare." 30 In Teoh, three of the majority made it clear that while the best interests of the children concerned had to be taken into account as a primary consideration, that did not mean other considerations had to be ignored. Instead, they said that the decision-maker is required to: "Give [the best interests of the child] first importance along with such other considerations as may, in the circumstances of a given case, require equal, but not paramount, weight …" at 298 per Mason CJ and Deane J; and "there may be other interests carrying equal weight", at 302 per Toohey J. 31 To similar effect, the Full Court of this Court held in Wan v Minister for Immigration and Multicultural Affairs 107 FCR 133; [2001] FCA 568 ('Wan')at [32] that: "Provided that the Tribunal did not treat any other consideration as inherently more significant than the best interests of [the] children it was entitled to conclude, after proper consideration of the evidence and other material before it, that the strength of other considerations outweighed the best interests of the children". Further, at [33]: "The Tribunal was entitled to regard the expectations of the Australian community as a primary consideration provided that it did not overlook that, on the procedure which it had adopted, procedural fairness demanded that it act on the basis that the best interests of [the] children were a consideration of equal significance (ie also a primary consideration)". Wan was a case dealing with a decision by the Administrative Appeals Tribunal to affirm a decision of the Minister's delegate to refuse to grant a permanent residence visa to the father of two children aged eight and 20 months who were Australian citizens. See also Sebastian v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 31 ('Sebastian') at [10]. 32 In my view, therefore, the effect of the High Court's decision in Teoh is to identify the best interests of the children concerned as, to use the words of Mason J in Peko "a relevant factor of great importance" to which the decision-maker is required to give adequate weight: see Peko at 41. Viewed in this way, the Court has declared what weight should be given to it as a factor, thereby creating an exception to the general rule that the weight to be given to a particular consideration is a matter for the administrative decision-maker: see Peko at 41 per Mason J. By comparison, in his dissenting judgment in Teoh, McHugh J thought that the general rule should apply and the decision-maker, not the courts, should determine what weight should be given to it as a consideration: see Teoh at 321. 33 As to the qualification "statutory or executive indications to the contrary" mentioned in Teoh, the Full Court of this Court has expressed the view that broad, general statements (which presumably includes the Ministerial statements made in relation to Teoh in 1995 and 1997), were not effective indications to the contrary. Instead, it said greater specificity would be needed directed to the manner in which the particular decisions in question are made: see Lam v Minister for Immigration and Multicultural Affairs (2006) 157 FCR 215; [2006] FCAFC 184 at [30]. See also the discussion in Duxbury A, The Impact and Significance of Teoh and Lam in Groves and Lee, Australian Administrative Law, Cambridge University Press 2007 at page 305. 34 No such indications to the contrary have been pointed to by counsel in this case. 35 For these reasons, I hold that the High Court's decision in Teoh required that in issuing the amended notice, Mr Anderson had to take into account the best interests of the children concerned as a primary consideration.

Did Mr Anderson take into account the best interests of the children concerned as a primary consideration? 36 Having found that in issuing the amended notice, Mr Anderson was required to take into account the best interests of the children concerned as a primary consideration; the question that then arises is whether he did. On this question, not surprisingly, NTD8 says he did not and the ACC says he did. Again, I consider that NTD8 is correct in its submission. This is so for two separate and independent reasons. 37 First, in his cross-examination before me, Mr Anderson was quite frank and very specific that whilst he had taken into account the best interests of the children concerned as a consideration, he had not taken those interests into account as a primary or first consideration. The relevant part of Mr Anderson's cross-examination was as follows (emphasis added): MR YOUNG: Did you consider that you were bound - in making your decision, did you consider that you were bound to take into account the best interests of the relevant children as a primary consideration in making your decision? MR ANDERSON: It was a consideration. It wasn't the first consideration. MR YOUNG: The first being a synonym for primary …. Is that correct? MR ANDERSON: Yes. MR YOUNG: So is it fair to summarise your answer as you considered it, you were bound to - - -? - - -It was a matter - - - take it into consideration but not as a first or primary consideration? MR ANDERSON: The manner to which I should have regard along with several other matters in the course of making the decision. MR YOUNG: But nowhere in the documents have you recorded that you had taken account of the best interests of the relevant children as a consideration, primary or otherwise. Do you agree with that? MR ANDERSON: I haven't recorded that, no. That's in my - in the unstated general knowledge that I have that I have not recorded. MR YOUNG: It would appear to follow from your answer and correct me if I'm wrong that you do not consider yourself bound as a matter of law at the time you made the decision to take into account the best interests of the children as a primary consideration? MR ANDERSON: Not as the first consideration, no. MR YOUNG: Thank you? MR ANDERSON: My primary consideration was to give - was the objectives of the determination. MR YOUNG: And if you had of taken the bests interests of the children into account as a primary consideration, you would have recorded it? MR ANDERSON: No. I wouldn't have recorded it anymore than I have not done now. 38 Based on this evidence, I find that in issuing the amended notice, Mr Anderson did not take into account the best interests of the children concerned as a primary consideration. 39 While this finding would be enough to dispose of the matter, I consider I should also mention the second and separate reason I have for reaching this conclusion. It is that, consistent with what he said in his cross-examination (above), Mr Anderson's only primary consideration was the objects of the Determination or the Special Intelligence Operation. Furthermore, he did not make any assessment of what the best interests of the particular children affected by his decision required in the circumstances, nor did he weigh those interests against the primary consideration he did take into account. 40 There has been a number of decisions involving the Migration Act 1958 (Cth), where this Court has examined how an administrative decision-maker should take into account the best interests of children as a primary consideration. In Wan the Full Court described the administrative decision-maker's task in this way: " … it was required to identify what the best interests of Mr Wan's children required with respect to the exercise of its discretion and then to assess whether the strength of any other consideration, or the cumulative effect of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration." (at [32]). And further: "So, for example, the Tribunal might have concluded that the best interests of Mr Wan's children required that Mr Wan be granted the visa, but that the damage to their interests that would flow from his being refused the visa would be of only slight or moderate significance. If the Tribunal had also concluded that the expectations of the Australian community were that a non-citizen who engaged in conduct of the kind engaged in by Mr Wan would not be granted a visa, and that a decision to grant such a visa would be a most serious affront to the expectations of the Australian community, it would have been entitled to conclude that, in the circumstances of the case, the best interests of the children were outweighed by the strength of community expectations." (at [33]). 41 In Perez v Minister for Immigration & Multicultural Affairs [2002] FCA 450 ('Perez') Allsop J referred to Wan (above) and made a number of observations about the task of an administrative decision-maker in such circumstances as follows: "Here, nowhere did the delegate identify for himself those interests, or what they called for. It should be said at the outset that this is not some inflexible rule of law, or requirement for mechanical incantation. It is a logical and appropriate starting point if the task is to be essayed reliably. … The interests of the children are considerations in respect of their human development - their health, including their psychological health and happiness, their social and educational development as balanced, nurtured young citizens of this country. This is not a check list, but an illustration of the kinds of considerations relevant to these young people …" (at [118]). See also Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608, Rocca v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 71 at [33]-[36] and Sebastian at [11]-[15]. 42 In my view, these decisions require that an administrative decision-maker who is required to take into account the best interests of children as a primary consideration should: (a) identify what the best interests of the children concerned are and what they call for in the circumstances; (b) identify any other considerations that are worthy of equal importance; and (c) determine which consideration is to be given the greater weight in coming to the final decision; 43 Most of the decisions (above) make it clear that it is not necessary to expressly mention Teoh, or the expression 'best interests of the child', or even list the matters the decision-maker considers go to the best interests of the child, provided that it appears from a fair consideration of the materials, that the administrative decision-maker did in fact take into account the best interests of the children concerned as a primary consideration. 44 Mr Anderson swore an affidavit in these proceedings in which he described the process he followed and the matters he took into account in coming to the decision to issue the amended notice. At paragraph 10 of his affidavit, he summarises those factors as follows: "Having read the Statement of Facts and Circumstances (in its original form) and having regard to my knowledge and experience of such matters and taking into account the Applicant's objections to production and in particular in respect to their reasons for not wishing to disclose the names and details of certain children, I was satisfied that it was reasonable in all the circumstances pursuant to subsection 29(1A) of the Act, to issue the Notice. In accordance with that subsection I recorded my reasons for the issue of the Notice in writing ('the Reasons')." 45 The reference to "the names and details of certain children" is the only direct mention in Mr Anderson's affidavit, or its annexures, of the fact that the amended notice would affect the interests of a particular group of children viz the eight young Aboriginal girls described in Nurse Gooley's affidavit and annexed schedule. Elsewhere in his affidavit and annexures, Mr Anderson refers generally to NTD8's clients being affected by the notice, but he does not refer to the fact they included this particular group of children. Mr Anderson also refers generally to "young Indigenous girls", "Indigenous children under the age of consent", and "the abuse and maltreatment of children", but these references do not mention this particular group of children. 46 It follows that nowhere in his affidavit or its annexures, does Mr Anderson embark upon an assessment of what the best interests of this particular group of children are, let alone make an assessment of what their best interests may call for in the circumstances. 47 Furthermore, while there are a number of references to NTD8's objections to the amended notice and its reasons for not wishing to produce the medical records required by the amended notice, nowhere in Mr Anderson's affidavit or its annexures, is there any discussion of NTD8's objections insofar as they applied to these eight young Aboriginal girls. 48 NTD8's objections is set out in the affidavits of Dr Bell and Nurse Gooley. In essence, they express the views that given the very personal and sensitive nature of the treatment they have received viz contraceptive implants, if NTD8 has to disclose who these eight young Aboriginal girls are, they are likely to lose trust in NTD8 as a health provider and to avoid seeking further advice and assistance from it in the future. Dr Bell points out that NTD8 is the only such health provider that is readily accessible in the region and therefore these eight young Aboriginal girls are unlikely to obtain advice and assistance in the future for their sexual health. Dr Bell expressed the opinion in his second affidavit that: "Sexual health is an important issue for young teenagers and the provision of trusted, confidential services is essential for the prevention of pregnancy, prevention and timely treatment of sexually acquired infections, for access to counselling about sexual health and for detection of abuse or maltreatment." 49 Beyond general references to this evidence and to these views as "objections" or "concerns", there is no discussion anywhere in Mr Anderson's affidavit or its annexures of these views and whether, or how, they should be treated in assessing the best interests of these eight young Aboriginal girls in the circumstances. 50 Finally, consistent with Mr Anderson's frank acknowledgement in his cross-examination (above), and in stark contrast to the dearth of mention or discussion of the best interests of these eight young Aboriginal girls, there is extensive reference in Mr Anderson's affidavit and annexures to other considerations he considered to be of importance in deciding to issue the amended notice, including the objects of the ACC Act, the objects of the determination issued by the ACC Board, the issue of under-reporting of sexual abuse at some medical clinics in the Northern Territory and the objectives of the Special Intelligence Operation. However, nowhere in Mr Anderson's affidavit or its annexures is there any indication he engaged in any process of weighing those considerations against the consideration of the best interests of these children. This is not surprising once it is appreciated that Mr Anderson considered the former were primary considerations and the latter was not. 51 In summary, a fair reading of Mr Anderson's affidavit and its annexures shows that he: · did not make any assessment of what the best interests of these eight young Aboriginal children were, or what they called for in the circumstances; · in particular, did not make any real assessment of the views expressed by Dr Bell and Nurse Gooley as to where the best interests of these eight young Aboriginal children may lie; · did not treat the best interests of these eight young Aboriginal children as a primary consideration and, therefore, did not weigh that primary consideration against other considerations of equal, but not paramount, importance in coming to his final decision; and · instead, simply relied upon other considerations as the primary considerations in coming to his decision.

NTD8 v Australian Crime Commission

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