Australian Crime Commission v NTD8 [2009] FCAFC 86 (10 July 2009)

Last Updated: 10 July 2009

FEDERAL COURT OF AUSTRALIA

Australian Crime Commission v NTD8 [2009] FCAFC 86

ADMINISTRATIVE LAW – Australian Crime Commission Examiner issued notice to health services provider requiring production of medical records of eight female Aboriginal children pursuant to s 29(1)(b) Australian Crime Commission Act 2002 (Cth) – whether the best interests of those eight children was a relevant consideration which the Examiner was required to take into account in issuing that notice – whether the Examiner had regard to the best interests of those eight children – consideration of whether the best interests of those children was a "primary consideration"


Acts Interpretation Act 1901 (Cth) s 15
Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5(1)(e), 5(2)(b)
Australian Crime Commission Act 2002 (Cth) ss 4, 7, 7A, 7C, 28, 29, 29A, 46B
Convention on the Rights of the Child Article 3.1
Families, Community Services and Indigenous Affairs and Other Legislation Amendment (Northern Territory National Emergency Response and Other Measures) Act 2007 (Cth)



A.B. Pty Limited v Australian Crime Commission [2009] FCA 119; (2009) 107 ALD 591 discussed
Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562 distinguished
Chu Kheng Lim v Minister for Immigration [1992] HCA 64; (1992) 176 CLR 1 cited
Commissioner of Stamps (SA) v Telegraph Investment Co Pty Ltd [1995] HCA 44; (1995) 184 CLR 453 cited
Commissioner of Taxation v Citibank Ltd (1989) 20 FCR 403 cited
Deputy Commissioner of Taxation v Saunig (2002) 55 NSWLR 722 cited
Foster v Minister for Customs and Justice [2000] HCA 38; (2000) 200 CLR 442 cited
Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 457; (1987) 14 ALD 291 cited
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 cited
Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273 discussed
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 cited
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 cited
Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 cited
Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50; (2006) 228 CLR 566 cited
Oates v Attorney-General (Cth) [2003] HCA 21; (2003) 214 CLR 496 distinguished
Polites v The Commonwealth [1945] HCA 3; (1945) 70 CLR 60 cited
Re Woolley [2004] HCA 49; (2004) 225 CLR 1 distinguished
Sweeney v Fitzhardinge [1906] HCA 73; (1906) 4 CLR 716 cited
Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 discussed































AUSTRALIAN CRIME COMMISSION and JEFFREY PHILIP ANDERSON v NTD8





NTD 20 of 2008





BLACK CJ, MANSFIELD J & BENNETT J
10 JULY 2009
ADELAIDE (HEARD IN DARWIN)

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY
GENERAL DIVISION	NTD 20 of 2008

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

AUSTRALIAN CRIME COMMISSION First Appellant JEFFREY PHILIP ANDERSON Second Appellant

AND:	NTD8 Respondent

JUDGE:	BLACK CJ, MANSFIELD J & BENNETT J
DATE OF ORDER:	10 JULY 2009
WHERE MADE:	ADELAIDE (HEARD IN DARWIN)

THE COURT ORDERS THAT:

1. The appeal be allowed.

2. The orders of the Court made on 17 October 2008 be set aside.

3. The appellants file and serve within 14 days and the respondent file and serve within a further 14 days any submissions as to the costs of the appeal and of the hearing at first instance, to the intent that the Court will determine such costs upon the written submissions of the parties.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY
GENERAL DIVISION	NTD 20 of 2008

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

AUSTRALIAN CRIME COMMISSION First Appellant JEFFREY PHILIP ANDERSON Second Appellant

AND:	NTD8 Respondent

JUDGE:	BLACK CJ, MANSFIELD J & BENNETT J
DATE:	10 JULY 2009
PLACE:	ADELAIDE (HEARD IN DARWIN)

REASONS FOR JUDGMENT

THE COURT

INTRODUCTION

1 This appeal illustrates the often difficult decisions confronting administrative decision-makers, where there are sound considerations pointing in favour of quite alternative outcomes on a matter being considered. It thus highlights the heavy responsibility upon such decision-makers to exercise the relevant power carefully and responsibly. The Court’s role is to superintend the process of administrative decision-making to ensure it is performed according to law. The Court is not to substitute its own decision on the merits.

2 The Australian Crime Commission (the ACC) appeals from a decision of a judge of the Court given on 17 October 2008. Under s 16(1)(a) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act), the primary judge quashed the decision of Jeffrey Anderson (the Examiner) made under s 29(1)(b) of the Australian Crime Commission Act 2002 (Cth) (the ACC Act) to issue a notice requiring the respondent (NTD8) to attend and produce certain documents. The decision was quashed only to the extent that the notice required the production of certain documents specified in item 2 of the schedule to the notice. Those documents were the detailed personal and health records of NTD8 relating to eight young Aboriginal females, all under 16 years of age.

3 NTD8 is an Aboriginal community-controlled health services provider. It provides those services over a wide geographical area in the Northern Territory. It was given the pseudonym NTD8 by the primary judge to preserve its confidentiality, as the disclosure of its name was feared to have the adverse consequences discussed below.

4 In short, the appeal concerns whether the notice under the ACC Act requiring the production of that information should have been set aside.

BACKGROUND

5 It is helpful to refer to the background to the Examiner’s decision.

6 The ACC is established under s 7 of the ACC Act.

7 On 26 June 2006, there was held an Intergovernmental Summit on Violence and Child Abuse in Indigenous Communities. It led on 13 July 2006 to the establishment by the ACC of the National Indigenous Violence and Child Abuse Intelligence Task Force (NIITF). Under the NIITF, the ACC set about gathering and coordinating information to enhance the understanding of the nature and extent of violence and abuse in Indigenous communities. That process was then not supported by the coercive powers available to the ACC under the ACC Act.

8 In June 2007, the "Little Children are Sacred Report", commissioned by the Northern Territory Government, was published. It too highlighted the problems of violence and abuse in Indigenous communities. Following the publication of that Report, the Commonwealth Government decided to establish the Northern Territory Emergency Response, commonly known as the Northern Territory Intervention or the Intervention, to deal with the incidence of child abuse and domestic violence in remote Indigenous communities in the Northern Territory.

9 It was recognised that the ACC did not have available the coercive powers under the ACC Act to support its work. It was necessary to amend the ACC Act. That was achieved by 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).

10 By the Amending Act, s 4(1) of the ACC Act was amended to include definitions of "child", "child abuse", "Indigenous person" and "Indigenous violence or child abuse". The term "federally relevant criminal activity" was redefined by reference to the term "relevant crime" and the term "relevant crime" was defined (and variously used in the ACC Act) to include both "serious and organised crime" (the previous ambit of the ACC Act) and "Indigenous violence or child abuse". The term "Indigenous violence or child abuse" was defined to mean "serious violence or child abuse committed by or against, or involving, an Indigenous person; and "serious violence" was defined to mean "an offence involving violence against a person (including a child) that is punishable by imprisonment for a period of 3 years or more".

11 On 5 February 2008, the Board of the ACC authorised and determined under s 7C of the ACC Act that it conduct a special intelligence operation into Indigenous violence or child abuse: Australian Crime Commission Special Intelligence Operation Authorisation and Determination (Indigenous Violence or Child Abuse) 2008 (the Determination). Sections 7A(c) and 7C(1)(c) and (3) predicate the power to make such a determination upon the existence of federally relevant criminal activity.

12 Section 7C(4)(c) required the Board of the ACC to set out the purpose of the Determination. It 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 some other law enforcement agency, and about legal or administrative reforms. Schedule 1 to the Determination identified the general circumstances constituting the "federally relevant criminal activity", namely the existence of information indicating that familial violence is deeply entrenched in Indigenous communities across most States and the Northern Territory with women and children the most common victims, and significant under-reporting of Indigenous violence or child abuse by victims, agencies and community members. It also identified some other elements of possible criminal conduct related to that primary behaviour.

13 The Examiner was appointed under s 46B of the ACC Act, Division 2 of Pt II of which empowers an examiner so appointed to conduct an examination for the purposes of the Determination, including under s 29, by requiring a person to produce certain documents to the examiner. Section 29 relevantly provides:

(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.

14 It is also helpful at this point to note the relevant provisions of s 29A. They provide:

(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.

15 On 10 April 2008, the Examiner issued a notice under s 29(1) to NTD8. It was in quite general terms. It led to the institution of these proceedings by NTD8.

16 Affidavits filed on behalf of NTD8 identified concerns about the scope and nature of the information sought. Those affidavits showed that there were eight female Aboriginal children about whom certain information may have been required to be provided by the terms of that initial notice, about which NTD8 was concerned (amongst other issues). The material before the primary judge showed that there was a concern that, if the notice had to be complied with, the police might interview the young girls and their families. The deponents expressed concern that those interviewed would see that as a breach of trust by NTD8 and its professional staff, and the children might not thereafter seek such medical services.

17 The s 29A(1) notation would prevent NTD8 from explaining, either to the girls concerned or to their communities, why it had breached patient confidentiality. The Northern Territory "Guidelines on the Management of Sexual Health Issues in Children and Young People" published in 2007 by its Department of Health and Community Services described such a breach of patient confidentiality, as "a significant betrayal of trust", unless for the purpose of reporting sexually transmitted infection or of pregnancy in girls under 14 years of age or, of course, for mandatory reporting of sexual abuse and maltreatment.

18

NTD8 commonly provides sexual and reproductive health services, including contraceptive advice and counselling about rights and consent, to young women and girls, often without the knowledge of their families. It is the sole provider of public health and clinical health services to a wide geographical region, so loss of confidence in it would potentially lead to an increase in young women having unwanted pregnancies and a decrease in young women seeking treatment for sexually acquired infections. There was also an expressed concern that it would add barriers to young women seeking antenatal care, and so exacerbate the problems of high infant mortality.

19 On 20 May 2008, by an amended notice under s 29(1) (the Notice), the Examiner required NTD8 to produce the health records of those eight female Aboriginal children, as well as certain other information. NTD8’s existing application was amended to attack the validity of the Notice to the extent that it required the production of information about those eight female Aboriginal children.

20 As authorised by s 29A(1), the Notice again contained a notation that the disclosure of information about the Notice, or any official matter connected with it, was prohibited, save for making any application to the Court challenging the validity of the Notice.

THE EXAMINER’S REASONS

21 The Examiner was required by s 29(1A) of the ACC Act to be satisfied that it was reasonable in all the circumstances to issue the Notice, and to record in writing the reasons for it.

22 The Examiner identified the material upon which his decision was made as being a Statement of Facts and Circumstances dated 20 May 2008, and Legal Submissions also dated 20 May 2008 prepared by an officer of the ACC. He then recorded that the purpose of the Notice was to require the production of the documents the subject of the Notice, setting out in detail the list of those documents.

23 He then concluded:

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.

That has the appearance of a formulaic document. It is what could be prepared to recite the requirements of ss 29 and 29A without any reference to any information at all.

24 The Statement of Facts and Circumstances contains more specific information.

25 The front page is evidently partly a pro forma, with brief details of the Determination and of the proposed notice. The first nine entries are in response to nine prompts for information. Each contains the barest of information, although no more was required – the front page, to that point, being really a cover sheet.

26 The balance of the front page has four questions to be answered relating to whether the s 29A notation must or may be included. Question 11, namely whether a notation under s 29A(1) may be included, is answered affirmatively. It then has the prompt: "Reason [state how failure to do so might prejudice]", and the text:

Failure to include a notation might prejudice the effectiveness of the special operation should the persons or entity subject to enquiries be advised by the recipient of the Notice that the ACC has made enquiries relating to them. Such advice by the recipient of the Notice would alert the persons or entity to particular lines of enquiry being conducted by the ACC and would provide an opportunity for them to advise their associates of the investigation and thereby could be reasonably expected to prejudice the successful outcome of the special operation.

27 That text also appears to be formulaic, based upon s 29A(2)(b)(iii), namely that failure to include the notation might prejudice the effectiveness of an operation or investigation. It is not self-evident how or why NTD8 might have "associates" whom it might advise of the investigation, or indeed why it might report to either the eight female Aboriginal children or members of their family or their community of the investigation so that their "associates" might also be informed of it to the detriment of the investigation. The form of words chosen has the appearance of being a standard recitation and one more apt to an investigation into serious and organised crime. It may also be noted that the NIITF was not a special ACC operation.

28 The next section of the Statement of Facts and Circumstances sets out details of the NIITF and its intelligence and information collection priorities, and of the Determination and its objectives and strategies. It notes the existence of Indigenous-related child abuse, and the "likely significant under-reporting" of such abuse, including by health agencies. It notes that this "allegedly occurs despite mandatory reporting requirements in some jurisdictions as service providers appear to rate client confidentiality above reporting obligations". It specifically identifies the aim, by a series of s 29 notices to non-government health organisations servicing remote Northern Territory communities, to secure records relating to (inter alia) sexually transmitted infections in children. It has similar sections relating to other conduct not said to be relevant to the present issue.

29 Finally, that document describes the nature of the health services and programs provided by NTD8, and its composition. It records earlier informal approaches to NTD8 to ascertain its systems and services. It records, as a concise statement of the purposes for which the documents specified in the proposed notice were sought:

Such records may disclose the names of victims of domestic violence and child abuse, the names of offenders, the nature of domestic violence, details of incidents including historical data and case histories. The documents sought in the Schedule to this Notice will allow the ACC to discover, in a limited way, the nature of domestic violence and child abuse (including sexual abuse) in this area so as to enable the ACC to gather criminal information and intelligence, discover the identity of offenders and subsequently present its findings recommendations to the ACC Board.

30 The Statement of Facts and Circumstances makes no reference at all to the matters of concern to NTD8, as disclosed in the material referred to above. After a reference to these proceedings, it concludes: "It is anticipated that the documents will provide evidence of federally relevant criminal activity, namely Indigenous violence and/or child abuse (including sexual abuse)".

31 The "Legal Submissions in Support" are partly formulaic or careless, or both. They commence by reference to the Determination. The author refers (from the Determination) not simply to the federally relevant criminal activity being Indigenous violence or child abuse, or related offences including violence-related offences. The author also refers to the "unlawful importation, manufacture, production, sale, supply, trafficking, or possession of unlawful or illegal drugs" and to "bribery, corruption and abuse of public office".

32 The Legal Submissions then present to the Examiner reasons for him to be satisfied that it is reasonable in all the circumstances to issue a notice under s 29(1) of the ACC Act. The document states that the operation the subject of the Determination concerns persons that may be engaged in Indigenous violence or child abuse "together with other offences referred to above" i.e., offences including "bribery, corruption and abuse of public office". It then asserts that the "subject of the notice apparently has significant information relevant to the above operation" and that it "may be desirable for the subject of the notice to provide documents under compulsion so as to avoid any breaches of client confidentiality". It refers to the then extant proceedings challenging the validity of the earlier notice and NTD8’s claim that the production of confidential documents, if exposed to police or authorities, may dissuade clients attending for medical treatment.

33 Finally, the document says that failure to include a notation pursuant to s 29A(1) of the ACC Act "would reasonably be expected to prejudice the effectiveness of the special operation as it may directly or indirectly alert persons subject of the ACC special operation about the nature of ACC inquiries which in turn my [sic, may] impede the progress of the special operation". The concerns earlier expressed about apparent glibness in so readily expressing such a view merit repeating. There is no reference to any specific way in which the progress of the Determination may be impeded.

34 On the appeal, NTD8 did not by notice of contention seek to uphold the decision at first instance on the basis that the Examiner had failed to comply with s 29(1A) by failing adequately to record reasons for his decision. It is apparent from the decision of Flick J in A.B. Pty Limited v Australian Crime Commission [2009] FCA 119; (2009) 107 ALD 591 at [53] that the Examiner’s reasons follow a template and we endorse his Honour’s observations at [54] about their adequacy. We do not, however, have to resolve that issue. In this case, the Court has the benefit of the Statement of Facts and Circumstances and the Legal Submissions, which were not, apparently, made available for the purposes of the decision in A.B. Pty Limited v Australian Crime Commission [2009] FCA 119; (2009) 107 ALD 591.

35 The Examiner also gave evidence at the hearing before the primary judge.

36 The Examiner said in his affidavit that, in addition to the Statement of Facts and Circumstances, he took into account his "knowledge and experience of such matters" and NTD8’s objections to production, "in particular in respect to their reasons for not wishing to disclose the names and details of certain children". The affidavit then records that the Examiner nevertheless was satisfied that it was reasonable in all the circumstances to issue the Notice in accordance with s 29(1A) and that he had recorded his reasons for the issue of the Notice in the document referred to above.

37 The Examiner said that he consciously required the identity and certain particulars of the eight female Aboriginal children, as he considered such information critical in order to meet the objectives of the ACC Act and the Determination. He balanced that requirement against NTD8’s objections, of which he was apprised. In cross-examination, the Examiner said that he was unable to recall whether he actually read the affidavit of the doctor expressing NTD8’s concerns, but said that he had been told by telephone of the contents of that affidavit by a legal officer of the ACC. He also had an affidavit that set out the details of the eight female Aboriginal children.

38 The Examiner identified his knowledge and experience as including an awareness of evidence of under-reporting of sexual abuse at some medical clinics in remote communities, either due to intimidation of non-Indigenous staff, including health providers, or some acceptance of certain alleged cultural sexual practices. He was also aware that the concept of consent "was often difficult for young Indigenous girls to understand and act upon". He was also concerned about the claim by NTD8 that details of young girls, whom NTD8 did not consider to have been abused and so were not the subject of mandatory reporting, should be exempt from disclosure to the ACC under the Notice, because – for reasons that were not stated:

[s]uch presentations to the clinic raised concerns in my mind as to issues of child abuse including neglect which were within the ambit of the Determination.

He specifically adverted to the request for information concerning children under the age of consent presenting to the medical clinic of NTD8 for sexual related treatment or consultation. He sought that information having regard to the prevalence of violence-related and sexual abuse offences in the relevant Indigenous communities, notwithstanding the Northern Territory Government Department of Health and Community Services "Guidelines on the Management of Sexual Health Issues in Children and Young People" and the mandatory reporting of sexual abuse and maltreatment. This was because he considered the Guidelines were narrower in their scope in respect to sexual abuse and maltreatment of children than the ACC Act and the Determination.

39 He then said that he made the s 29A(1) notation because it was important to ensure the confidentiality of the Notice and of the information requested by it. He said that it was his concern of protecting the confidentiality of the information regarding clients of NTD8 and their details, the fact of the issue of the Notice, and matters associated with it that led him to make that notation.

40 He concluded:

I took into account [NTD8’s] objections in the manner referred to and, in reaching a decision to issue the Notice, balanced the requirement that names and details of [NTD8’s] clients be provided against the objectives of the special operation under the Determination. I was, and still am, of the firm belief that the documents sought by way of the Notice are relevant to the special operation and are necessary for the ACC to give effect to that special operation.

41 It is an interesting question whether the Examiner could have given such evidence if objection had been taken. Section 29(1A) requires the contemporaneous or almost contemporaneous written record of the reasons. It does not accommodate their subsequent oral supplementation. 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 any event, those questions do not arise on the appeal as there was no submission that the Court should not have regard to that evidence of the Examiner, and no submission at first instance that the Examiner’s evidence should not all be accepted. The focus at first instance was whether the Examiner had treated the best interests of the children as a primary relevant consideration.

42 Reference in this regard should also be made to s 29(5). It provides:

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.

It did not feature in the submissions on appeal, nor apparently at first instance. It is noted only to indicate its possible relevance to those questions.

THE REASONS OF THE PRIMARY JUDGE

43 The ground of attack upon the validity of the Notice was the ground available under ss 5(1)(e) and (2)(b) of the ADJR Act, namely that the decision to issue the Notice was an improper exercise of power under s 29 of the ACC Act because the Examiner failed to take into account a primary relevant consideration in the exercise of the power. The relevant consideration identified was the best interests of the eight female Aboriginal children about whom the information was sought.

44 At the hearing, the only challenge to the Notice was insofar as it related to the eight female Aboriginal children referred to. The live issues, as his Honour identified, were whether the Examiner was required to take into account the best interests of the children concerned as a primary consideration in making his decision to issue the Notice and, if so, whether the Examiner had taken into account the best interests of those children concerned as a primary consideration.

45 In the course of considering the first question, the primary judge recorded the following (at [25]):

It is common ground between the parties that the best interests of the children concerned is a consideration which [the Examiner] 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 ..., the Minister’s Second Reading Speech on the FACSIA Bill and the Explanatory Memorandum for the FACSIA Bill. (original emphasis).

He said that the issue between the parties was whether the best interests of the children was a primary consideration.

46 His Honour decided that question in the affirmative, relying primarily on the High Court’s decision in Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273 (Teoh). His Honour characterised the effect of that case as being that (at [28]):

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.

47 Without considering whether the Examiner had given the affected persons an opportunity to be heard on this issue, his Honour went on to find 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" (at [35]). The ACC and the Examiner strongly contested this approach, but since NTD8 did not seek to support the primary judge’s reasoning in this respect, but argued that the decision should be upheld on other grounds (see [50] of these reasons), it is not necessary for us to decide the issue.

48 The primary judge then found (at [42]) that the obligation to take into account the interests of the children as a primary consideration had required the Examiner to:

(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.

His Honour concluded (at [46]-[51]) that the Examiner did not make any assessment of what the best interests of the eight female Aboriginal children were, or what those interests called for in the circumstances, and in particular did not make any real assessment of the views expressed by the doctor and nursing sister who gave affidavit evidence as to where the best interests of those eight female Aboriginal children may lie.

49 Consequently, his Honour concluded at [51] that the Examiner did not treat the best interests of those eight young Aboriginal children as a primary consideration, and did not weigh that primary consideration against other considerations of equal, but not paramount, importance in coming to his final decision, but simply relied upon other considerations in coming to this conclusion. It was on that basis that the primary judge made the order referred to in [2] above.

THE GROUNDS OF APPEAL

50 Two grounds of appeal were argued on behalf of the ACC and the Examiner. They were that:

1. his Honour erred in holding that the Examiner was required by law to take the "best interests" of the eight female Aboriginal children into account, whether "as a primary consideration" or at all; and

2. further or in the alternative, his Honour erred in finding that the Examiner did not take the "best interests" of the eight female Aboriginal children into account "as a primary consideration".
To preserve its position, NTD8 filed a Notice of Contention that the decision of the primary judge should be affirmed on grounds other than those relied on by the Court below, namely that the primary judge should have held, as a matter of construction, that the Examiner in exercising his discretion under s 29 of the ACC Act was required to take into account the best interests of the children who were the subject of the Notice as a primary consideration.

51 Resolution of the grounds of appeal first depends upon determining whether the best interests of the children are, in terms of s 5(2)(b) of the ADJR Act, a relevant consideration to which the Examiner was required to have regard.

The concession before the primary judge

52 Before turning to that issue, it is necessary to say something about the concession which the primary judge understood had been made by senior counsel for the ACC and the Examiner at first instance, as noted at [45] above. On appeal, it was disputed that such a concession was made. The Court was provided with the outlines of submissions of the ACC and the Examiner and of the relevant parts of the transcript of the hearing at first instance.

53 In the written outline of closing submissions, it was clearly argued by the ACC and the Examiner that the Examiner was not bound to take into account the claim that giving the information required by the Notice may discourage clients of NTD8 from seeking medical assistance. However, it was also there acknowledged that "the best interests of the children is a central premise" on which the ACC Act and the Determination are based, because child abuse is one of its "central paradigms". Counsel, in oral submissions, in response to questions from the primary judge, agreed that the considerations which should be taken into account in issuing a notice under s 29 include as a primary consideration the best interests of the children (as expressed in Article 3 of the Convention on the Rights of the Child).

54 There was thus some ambiguity in the position adopted on that issue at the primary hearing by the ACC and the Examiner. It is easy to understand how the primary judge came to record the "common ground" referred to in his reasons, and focused on the question whether it was a primary consideration (although that too, at one point, seems to have been acknowledged by counsel). We do not think it necessary to decide whether such a concession was in fact made at first instance and we consider it appropriate to allow the issue to be fully ventilated on the appeal. The issue is one of statutory construction. It is not suggested that the concession (if it were made) occurred otherwise than late in closing submissions or that NTD8 would have adduced any additional contextual material to assist in the proper construction of s 29 of the ACC Act. As the reasons of the primary judge show, his Honour accepted the concession and then addressed the related constructional issue as to whether the best interests of the children are a primary consideration required by s 29 to have been considered by the Examiner.

Was the Examiner obliged to take into account the best interests of the children?

55 There is no express obligation in s 29 of the ACC Act requiring the Examiner to take into account the best interests of the children. The section merely expressly obliges the Examiner to be satisfied in all the circumstances that it is reasonable to issue the Notice. Hence, if the best interests of the children were a relevant consideration which the Examiner was bound to consider, that obligation will have to be implied from the construction of the statute: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 (Peko-Wallsend) at 39-40 per Mason J, 55-6 per Brennan J; Foster v Minister for Customs and Justice [2000] HCA 38; (2000) 200 CLR 442 at [22]- [23] per Gleeson CJ and McHugh J; Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50; (2006) 228 CLR 566 at [1] per Gleeson CJ (agreeing), [126]-[127] per Heydon and Crennan JJ; Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [72]- [74] per McHugh, Gummow and Hayne JJ.

56 It is appropriate first to observe that the use of the word "primary" in the submissions does not, at this point, really add to the contention of NTD8. If, as a matter of statutory construction, "the best interests of the children" was a relevant consideration which the Examiner was bound to take into account, it adds little to say that it was a "primary" relevant consideration. It extends the boundaries of interpretative subtlety (in the absence of express words) to draw implications as to degrees of relevance of those considerations to which, by implication, the decision-maker is bound to have regard. If a consideration must be and is taken into account, there may be scope for attacking the correctness of the decision-making process (but not of course its merits: Peko-Wallsend [1986] HCA 40; (1986) 162 CLR 24 at 40-2 per Mason J) on other grounds, such as unreasonableness (as suggested by Mason J in Peko-Wallsend [1986] HCA 40; (1986) 162 CLR 24 at 41-2) or for failing to give "proper, genuine and realistic consideration to the merits of the case" (per Gummow J in Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 457; (1987) 14 ALD 291, where his Honour was considering the ground of review available under s 5(1)(e) and (2)(f) of the ADJR Act). Subject to the availability of other grounds of attack upon the decision-making process, if a consideration is one which the decision-maker is bound to take into account, it is a matter for the decision-maker as to the weight to be attributed to the relevant considerations: Peko-Wallsend [1986] HCA 40; (1986) 162 CLR 24 at 41 per Mason J.

The requirements of the Amending Act

57 The Amending Act should not be read in isolation. It is part of the ACC Act, and that Act should be construed as one enactment: Sweeney v Fitzhardinge [1906] HCA 73; (1906) 4 CLR 716 at 735 per Isaacs J; Commissioner of Stamps (SA) v Telegraph Investment Co Pty Ltd [1995] HCA 44; (1995) 184 CLR 453 at 463 per Brennan CJ, Dawson and Toohey JJ and at 479 per McHugh and Gummow JJ. See also s 15 of the Acts Interpretation Act 1901 (Cth).

58

There is now in the ACC Act a clear alternative focus upon, or description of, the intelligence operations or investigations the Board may authorise under ss 7A(b) and (c) and s 7C(1)(c). They must relate to federally relevant criminal activity. Although s 7A(b), when referring to intelligence operations, does not refer to federally relevant criminal activity, that expression is part of the definition of "intelligence operation" in s 4. So too is the Board’s power under s 7C(1)(d) to determine whether an investigation is a special investigation: ss 7C(3) and (4). The definition of "federally relevant criminal activity" directs attention to the definition of "relevant crime". As noted above, since the Amending Act, "relevant crime" has alternative meanings, each of which is also separately defined: "serious and organised crime", or "Indigenous violence or child abuse".

59 The coercive investigative powers of an examiner under Division 2 of Part II of the ACC Act must be construed in that context. In particular, the power to summon a person to give evidence under s 28 or to obtain documents under s 29, which in each instance may be done only if the examiner is "satisfied that it is reasonable in all the circumstances to do so": ss 28(1A) and 29(1A) respectively, must be construed in that context.

60 It does not follow from the general requirement of the reasonable satisfaction of the examiner that, because there is (as was put on behalf of the ACC and the Examiner) "one standard of reasonableness", it is inappropriate to imply into s 29(1A) any particular matters to which the examiner must have regard before reaching that satisfaction in relation to a decision to issue a notice under s 29(1).

61 In A.B. Pty Limited v Australian Crime Commission [2009] FCA 119; (2009) 107 ALD 591, Flick J considered the validity of notices issued under s 29 of the ACC Act. The complaint concerned the lack of particularity in the notices, the time allowed for compliance with the notices, and the relevance of the documents specified. It was argued that relevance was a relevant consideration which the examiner ought to have taken into account, but had not done so. In the result, the attack on the validity of the notices on that ground failed, simply because his Honour was not persuaded that the examiner had not considered the relevance of the documents to be produced: see at [55] and [56]. In the course of his reasons, Flick J at [20] said:

It is (perhaps) surprising that the legislature has thus seen fit to specify few express constraints upon the exercise of the power conferred by s 29. But such constraints as have been imposed include the requirement that the document or thing required to be produced is "a document or thing that is relevant to a special ACC operation/investigation"; that the "document or thing" required to be produced must be "specified in the notice"; and the requirements that an examiner must be "satisfied that it is reasonable in all the circumstances" to issue a notice and that "the reasons for the issue of the notice" be recorded in writing. Given the width of the power conferred, it is (perhaps) equally surprising that that which may be the subject of a notice also has the potential to lack certainty – a "document" can be readily identified; but that which constitutes a "thing" will presumably be resolved over time.

62 In Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 the central issue was whether the Public Transport Corporation of Victoria had discriminated against persons with disabilities contrary to s 29(1) of the Equal Opportunity Act 1984 (Vic). That case, relevantly for present purposes, raised the question under s 17(5)(c) of that Act whether a requirement or condition imposed by the Corporation was "not reasonable". McHugh J at 410 said:

In a legal instrument, subject to a contrary intention, the term "reasonable" is taken to mean reasonable in all the circumstances of the case. Nothing in the context of s 17(5)(c) indicates that the term should not be given its ordinary meaning. The reasonableness of the imposition of the requirement or condition in that paragraph, therefore, must be examined by reference to the relevant circumstances, including in the case of a requirement or condition imposed by a government or statutory body any relevant policy objectives.

See also the observations of Heydon JA (as he then was) in Deputy Commissioner of Taxation v Saunig (2002) 55 NSWLR 722 at 729-30.

63 The statutory power in s 29 of the ACC Act to obtain documents compulsorily is a provision which intrudes into the entitlement of any person to keep documents private and confidential. If exercised, the failure to comply with a notice carries significant consequences, including imprisonment for up to five years: s 29(3) and (3A). It should, therefore, be construed carefully according to its terms: see per French J (as he then was) in Commissioner of Taxation v Citibank Ltd (1989) 20 FCR 403 at 433 and per Flick J in A.B. Pty Limited v Australian Crime Commission [2009] FCA 119; (2009) 107 ALD 591 at [19].

64 The starting point is that the documents to be produced pursuant to a s 29 notice must be relevant to the special ACC investigation or operation: s 29(1)(b). However, before issuing a notice, the examiner must be satisfied that it is reasonable in all the circumstances to issue it: s 29(1A). This provides a limitation on the discretion. On the other hand, s 29 does not limit the satisfaction merely to whether the document or thing specified in the notice is relevant.

65 The circumstances that the examiner is required to consider may, as they did in this case where the federally relevant criminal activity is Indigenous violence or child abuse, expose to the examiner factors which may operate to the detriment of persons whom the operation is intended to assist, notwithstanding the relevance of the documents to the special operation. There may be a particular detriment to a particular person. It is neither possible nor appropriate to state exhaustively the possible range of circumstances which might inform the assessment to be made by the examiner. However, in the context of the scope and purpose of the provisions of the ACC Act relevant to the Determination and the subsequent implementation of the special ACC operation, in our view, 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. In circumstances where the concern of NTD8 that the eight female Aboriginal children and, indeed, other children might be deterred from availing themselves of the services of NTD8 was before the Examiner, he was required to take that concern and the likely effect on the children into account.

66 In reaching that view we have concluded that the intention of the relevant provisions of the ACC Act is clear enough. It is not necessary to refer to the Explanatory Memorandum to the Amending Act, or to the Convention on the Rights of the Child, which was adopted by the General Assembly of the United Nations on 20 November 1989 and entered into force in accordance with Article 49 on 2 September 1990 (the Convention). The Convention is said in the Explanatory Memorandum to be recognised and given effect to by the Amending Act. That is done by the terms of the Amending Act rather than by the specific adoption of the Convention as part of the domestic law of Australia. So the ACC Act itself should be construed to see whether, in the circumstances confronting the Examiner, the best interests of Indigenous children who might use the services of NTD8 were required to be taken into account. In Minister for Immigration and Multicultural Affairs, Re Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1, McHugh and Gummow JJ at 33 said:

in the case law a line has been drawn which limits the normative effect of what are unenacted international obligations upon discretionary decision-making under powers conferred by statute and without specification of those obligations. The judgments in Teoh accepted the established doctrine that such obligations are not mandatory relevant considerations attracting judicial review for jurisdictional error. The curiosity is that, nevertheless, such matters are to be treated, if Teoh be taken as establishing any general proposition in this area, as mandatory relevant considerations for that species of judicial review concerned with procedural fairness.

67 Adoption of the Convention does not, of itself, create an obligation on the second respondent to consider the interests of the relevant children. The Convention is not part of Australian domestic law. A matter which can be discerned on the proper construction of the Act as a whole to be relevant in the exercise of that discretion, does not achieve that quality because the same matter is stipulated in an international treaty, or is the subject of one or more of Australia’s international obligations. Thus, if, for example the right of the child of an applicant to acquire Australian nationality were relevant to the exercise of the Minister’s discretion, the regard which the Minister should have to that right would not materially change because a similar right is recognised by a treaty.

68 Counsel for NTD8 argued that the construction of the ACC Act would be better informed by specific reference to the Convention, and in particular to Article 3.1. It reads as follows:

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.

But for the reasons already given, any emphasis on the word "primary" is unhelpful, whether the word is prefaced by the indefinite article "a" as in the Convention or by the definite article. The ACC Act, having been amended as discussed, will indicate itself how and to what extent the Convention has been reflected in the terms of the ACC Act. Indeed, as the Solicitor-General pointed out, the Explanatory Memorandum was directed to the Amending Act and not specifically to s 29, and neither s 29 nor any provision in Division 2 of Part II of the ACC Act was amended by the Amending Act.

69 For the same reason, it is not necessary to construe s 29 of the ACC Act so that, in the absence of a contrary intention, it accords with Australia’s international obligations: Chu Kheng Lim v Minister for Immigration [1992] HCA 64; (1992) 176 CLR 1 at 38 per Brennan (as he then was), Deane and Dawson JJ; Polites v The Commonwealth [1945] HCA 3; (1945) 70 CLR 60 at 68 per Latham CJ and at 77 per Dixon J. Indeed, in the present circumstances, such a contention would be somewhat circuitous. The Explanatory Memorandum says that the Amending Act is to give effect to the Convention (at least in the respects which it addresses), so the debate would then become one of policy, as to whether the Amending Act had done so effectively. On the other hand, it should be noted, s 29 is not so unambiguous or prescriptive as to exclude the construction which we have adopted for the reasons given. In that respect, it contrasts with the provisions addressed in Oates v Attorney-General (Cth) [2003] HCA 21; (2003) 214 CLR 496; Re Woolley [2004] HCA 49; (2004) 225 CLR 1; and Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562.

The considerations taken into account by the Examiner

70 The task of the Examiner was, for the reasons given, to consider the interests of the eight female Aboriginal children and other children who might use the services of NTD8, because that was a consideration relevant to the satisfaction to be reached under s 29(1A) of the ACC Act.

71 The Examiner’s reasons were complemented by his reference to the Statement of Facts and Circumstances, and the Legal Submissions. The effect of those two documents is set out above at [24]-[33]. It can properly be said, as was remarked at the commencement of these reasons, that there are conflicting considerations going to the best interests of those children. The Determination was directed to assembling information about Indigenous violence and child abuse, and identifying those involved in such conduct. At a higher level of abstraction, it is a tool in a process aimed at preventing such conduct. Obviously, such an objective is in the best interests of Indigenous children. On the other hand, to serve that objective involved identified risks of detriment to the eight female Aboriginal children concerned, and to other Indigenous young women who might now choose not to avail themselves of the services of NTD8, as discussed in [16]-[17] above. That matter was brought to the attention of the Examiner.

72 The legal process required the Examiner to have regard to that last mentioned consideration. For the reasons given, it is not appropriate to measure whether sufficient weight was given to it. It is not for the Court to substitute its view of the weight to be given for that of the Examiner. It is, more accurately, not for the Court to substitute its assessment (or satisfaction) of whether it was reasonable in all the circumstances to issue the Notice, for the assessment or satisfaction of the Examiner: see the remarks of Brennan CJ, Toohey, McHugh and Gummow JJ in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 274-5. There was no submission on behalf of NTD8 that the satisfaction of the Examiner, having considered the relevant matters, was so unreasonable that it could not have been reached.

73 The Examiner’s reasons, as we have noted, are laconic, formulaic and often unhelpful. They appear to tick boxes. The Statement of Facts and Circumstances was uninformative. If the relevant officer had wished to draw to the Examiner’s attention the matters of concern to NTD8 and its staff, the notice he or she prepared did not do so. It should have done so. It is not satisfactory (and quite possibly not sufficient) for the Examiner, later and independently of the written reasons prepared pursuant to s 29(1A), to assert that there were other matters taken into account which he did not record. However, the Legal Submissions in support do specifically refer to the concerns of NTD8 and its staff that the disclosure of the particular documents concerning the eight female Aboriginal children may dissuade them and others from seeking medical attention, albeit cursorily. The Examiner’s evidence then acknowledged specifically that he had taken into account the reasons why NTD8 did not wish to disclose the information sought about those eight children. That merely confirms what is readily inferred from his reference to his adoption of the Legal Submissions in his reasons. As a countervailing consideration, in making the assessment required by s 29(1A) the Examiner had access to the Determination and the details in the Statement of Facts and Circumstances. In making the assessment required by s 29(1A), the Examiner also had access to the Determination and the details in the Statement of Facts and Circumstances and, by having considered the Statement and having adopted the Legal Submissions does appear to have had regard to NTD8’s concerns. It is further confirmed by his later reference in his affidavit to the reasons for making the notation under s 29A(1), although as discussed earlier in these reasons the logic of his reasoning in that regard is not persuasive.

CONCLUSION

74 It follows that the first ground of the amended notice of appeal does not succeed; the Examiner was required by law to take into account the concerns of NTD8 and the effect on the children. As to the second ground, it was not established in the circumstances that the Examiner did fail to take account of those concerns. Accordingly, the appellants have succeeded in establishing the second ground of the amended notice of appeal.

75 For those reasons, the appeal should be allowed. The order of the primary judge made on 17 October 2008 should be set aside. The parties should have liberty to make written submissions as to the costs of the appeal and of the proceedings at first instance, having regard to the significant nature of the issues and the extent to which they have each succeeded. The ACC and the Examiner should have 14 days to make such written submissions as they may be advised, and NTD8 should have a further 14 days within which to respond.

I certify that the preceding seventy-five (75) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Black, and Justices Mansfield and Bennett.

Associate:

Dated: 10 July 2009

Counsel for the Appellants:	S Gageler SC, S Maharaj QC and R Prince
Solicitor for the Appellants:	Australian Government Solicitor
Counsel for the Respondent:	A Young
Solicitor for the Respondent:	Midena Lawyers

Date of Hearing:	4 March 2009
Date of Judgment:	10 July 2009