FEDERAL COURT OF AUSTRALIA

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

ADMINISTRATIVE LAW – Australian Crime Commission Examiner issuing notice requiring production of medical records of Aboriginal teenage children – requirement of Teoh that the best interests of the children be a primary consideration – whether proper consideration given by the Examiner to the best interests of the children concerned in issuing the notice – no proper assessment of what the best interests of the teenage children called for in the circumstances – failure to give adequate weight to a relevant consideration of great importance – taking into account other considerations as paramount – s 29 of Australian Crime Commission Act 2002 (Cth) – s 5 of Administrative Decisions (Judicial Review) Act 1977(Cth)

Australian Crime Commission Act 2002 (Cth)

Australian Crime Commission Amendment Act 2007

Families, Community Services and Indigenous Affairs and Other Legislation Amendment (Northern Territory Emergency Response and Other Measures) Act 2007

Administrative Decisions (Judicial Review) Act 1977(Cth)

National Crime Authority Act 1984 (Cth)

Migration Act 1958 (Cth)

Sean Investments v McKellar (1981) 38 ALR 363

Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24

Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273

Wan v Minister for Immigration and Multicultural Affairs 107 FCR 133; [2001] FCA 568

Sebastian v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 31

Lam v Minister for Immigration and Multicultural Affairs (2006) 157 FCR 215; [2006] FCAFC 184

Perez v Minister for Immigration & Multicultural Affairs [2002] FCA 450

Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608

Rocca v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 71

Duxbury A, The Impact and Significance of Teoh and Lam in Groves and Lee, Australian Administrative Law, Cambridge University Press 2007

NTD8 v AUSTRALIAN CRIME COMMISSION and JEFFREY PHILIP ANDERSON

NTD8 of 2008

REEVES J

17 OCTOBER 2008

DARWIN

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

BETWEEN:

NTD8

Applicant

AND:

AUSTRALIAN CRIME COMMISSION

First Respondent

JEFFREY PHILIP ANDERSON

Second Respondent

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

REASONS FOR JUDGMENT

INTRODUCTION

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).

FACTUAL BACKGROUND

5 In June 2007, following the publication of the ‘Little Children are Sacred’ Report which was commissioned by the Northern Territory Government, the Commonwealth Government decided to establish the Northern Territory Emergency Response, more commonly known as the Northern Territory Intervention, to deal with the incidence of child abuse and domestic violence in remote Aboriginal communities in the Northern Territory.

6 As a part of the Northern Territory Intervention, a package of four pieces of legislation was passed by the Commonwealth Parliament. It included the Families, Community Services and Indigenous Affairs and Other Legislation Amendment (Northern Territory Emergency Response and Other Measures) Act 2007 (‘the FACSIA Act’) and the Australian Crime Commission Amendment Act 2007, both of which made a number of amendments to the ACC Act. In general terms those amendments extended the ambit of the ACC’s functions to include intelligence operations in relation to Indigenous violence or child abuse. I have set out a summary of those amendments in the Relevant Legislative Provisions section below.

7 In pursuit of its extended functions, on 5 February 2008, the Board of the ACC issued a Determination entitled the Special Intelligence Operation Authorisation and Determination (Indigenous Violence or Child Abuse) 2008 (‘the Special Intelligence Operation’). The purpose of the Special Intelligence Operation included the collection and analysis of criminal information and intelligence relating to federally relevant criminal activities in relation to Indigenous violence or child abuse or other federally relevant criminal activity. Its objectives included:

(a) Identifying offenders involved in Indigenous violence and child abuse;

(b) Supporting investigations by partner agencies into violence or child abuse in Indigenous communities by utilising ACC coercive powers where appropriate;

(d) Providing intelligence based advice to the relevant Commonwealth, State and Territory organisations on violence or child abuse in remote and urban Indigenous communities, including organised crime involvement in substance abuse, alcohol and pornography; and

(e) Facilitating intelligence collection and sharing.”

8 Mr Jeffrey Phillip Anderson is an Examiner appointed under s 46B(1) of the ACC Act. On 10 April 2008, in his role as an ACC Examiner and as a part of the Special Intelligence Operation, he issued the original notice to NTD8 under s 29(1) of the ACC Act.

9 In response, on the morning of 7 May 2008, NTD 8 issued these proceedings under s 5 of the Administrative Decisions (Judicial Review) Act 1977(Cth) seeking to challenge Mr Anderson’s decision to the issue of that original notice.

10 In the period immediately following 7 May 2008, NTD 8 filed and served affidavits by Dr Andrew Bell sworn 9, 18 and 20 May 2008 and by Registered Nurse Rebecca Gooley sworn 9 May 2008, which set out their concerns if NTD8 were to comply with the original notice. In Nurse Gooley’s affidavit she deposed to the results of her searches of NTD8’s computer system which she had undertaken in response to the original notice. She set those out at paragraphs 7 to 8 of her affidavit, as follows:

“In relation to the information sought about injuries that were, or could have been, sustained as the result of family or domestic violence or other forms of assault for the period 1 January 2008 to 31 March 2008 I have found 6 cases only. I do not consider this a reliable result because I believe there should be a substantially higher figure.

In relation to the information sought about clients aged under 16 years I have annexed a schedule of the information I have found by computer search. This schedule is reasonably reliable and, I believe, represents almost all of the available information. It might be that reading the progress notes would reveal other relevant cases. … The schedule is annexed hereto and marked “R[G]1”.”

11 The schedule annexed to Nurse Gooley’s affidavit listed the details of 12 patients including eight young Aboriginal girls. Each of the eight young Aboriginal girls (except one) had received an Implanon contraceptive implant. The details of those eight young Aboriginal girls, as set out in the schedule, were as follows:

1. 10/8/2007 15 year old girl

Insertion of Implanon (contraceptive implant). Noted but not inserted in our health service (name of health service not noted).

No evidence in notes of suspicion of abuse.

No requirement for mandatory reporting

2. 26/6/2007 14 year old girl

Implanon inserted for contraception

No evidence in notes of suspicion of abuse.

No requirement for mandatory reporting

3. 2/5/2007 13 year old girl

Implanon inserted for contraception

No evidence in notes of suspicion of abuse.

No requirement for mandatory reporting

4. 27/6/2007 13 year old girl

Implanon inserted for contraception

No evidence in notes of suspicion of abuse

No requirement for mandatory reporting

5. 27/9/2007 14 year old girl

Implanon inserted for contraception

No evidence in notes of suspicion of abuse.

No requirement for mandatory reporting

6. 9/8/2007 15 year old girl

Implanon inserted for contraception

No evidence in notes of suspicion of abuse

No requirement for mandatory reporting

7. 27/9/2007 13 year old girl

Implanon inserted for contraception

No evidence in notes of suspicion of abuse.

No requirement for mandatory reporting

8. 14 year old, turned 15 in *

20/2/2007 provided with depo provera for contraception (effective 3 months)

18/2/2007 positive test for gonorrhea, subsequently treated

23/10/2007 noted as pregnant.

Had baby in ***

No evidence in notes of suspicion of abuse.

No requirement for mandatory reporting

The * indicates information that has been deleted to protect the patient’s privacy.

12 On 20 May 2008, Mr Anderson issued the amended notice. Before issuing the amended notice, he had an opportunity to consider the matters set out in the affidavits of Dr Bell and Nurse Rebecca Gooley. Unlike the original notice, which was quite general in its terms, the amended notice was specifically limited to those persons described in paragraphs 7 and 8 of Nurse Gooley’s affidavit (above). In relation to the eight young Aboriginal girls, the amended notice required NTD8 to produce their medical records and the following information:

“Records or documents relating to such persons should be inclusive of any personal particulars and/or other relevant information, including:

· Names;

· Date and place of birth;

· Date of presentation;

· The name or names of staff members or consultants of [NTD8] to whom the person presented on each occasion of any such presentation (if more than one) in the relevant period;

· Last known address and address history;

· Any name or names and personal particulars of any person or persons who are identified to [NTD8] by the person presenting (or any person on their behalf) as having sexually assaulted such person presenting and any referral/s to other services.”

13 Following receipt of the amended notice, NTD8 applied to amend its application in these proceedings so that it was directed to the amended notice. The ACC did not oppose that application. I interpolate that the ACC subsequently raised a time limit issue in relation to these proceedings. It claimed they were not issued within five days of NTD8 becoming aware of the original notice as required by s 57 of the ACC Act. I reject that submission. Whatever may have been the case in relation to the original notice, the fact is these proceedings now relate to the amended notice. The ACC chose to withdraw the original notice and issue the amended notice and the ACC did not oppose NTD8’s application to amend the application in these proceedings so that it was directed to the amended notice. In these circumstances, I do not consider s 57 applies because these proceedings were on foot when the amended notice was served and therefore they were, in practical terms, lodged within five days of NTD8 becoming aware of the amended notice. Even if I am wrong about this conclusion, I consider the circumstances outlined above amount to special circumstances and would grant NTD8 the necessary extension of time under s 57 to pursue these proceedings, as amended.

14 When these proceedings came on for hearing before me, Mr Young for NTD8 informed me that his client only wished to challenge the notice insofar as it related to the eight young Aboriginal girls listed above. This reduced the live issues in these proceedings quite considerably, as will appear later in theses reasons. Before turning to those remaining issues, I need to briefly summarise the relevant provisions of the ACC Act.

RELEVANT PROVISIONS OF THE ACC ACT

15 The ACC was re-established by s 7 of the ACC Act. Prior to the ACC Act coming into effect in 2002, the ACC was known as the National Crime Authority (established under the National Crime Authority Act 1984 (Cth)). The ACC’s functions are described in s 7A of the ACC Act. Amongst other things, they include: collecting, correlating, analysing and disseminating criminal information and intelligence, and undertaking intelligence operations (when authorised by the Board of the ACC).

16 The expression “intelligence operation” is defined in s 4 of the ACC Act to mean: “the collection, correlation, analysis or dissemination of criminal information and intelligence relating to federally relevant criminal activity.” The expression “federally relevant criminal activity” is defined in s 4 to mean: “a relevant criminal activity, where the relevant crime is an offence against a law of the Commonwealth or of a Territory; or a relevant criminal activity, where the relevant crime is an offence against a law of a State; and has a federal aspect”.

17 The Board of the ACC is authorised to determine that an intelligence operation or an investigation is a ‘special operation’ or ‘investigation’ (see ss 7C(2) and (3)). The Special Intelligence Operation here was determined under these sections.

18 Much of the critical work of the ACC is carried out by examiners. Examiners are appointed by the Governor-General (see s 46B) and are given the powers, amongst other things, to conduct examinations for the purposes of a special ACC operation/investigation (see s 24A), to summons witnesses and take evidence (see s 28) and to obtain documents for that purpose (see s 29).

19 The notice that is at the heart of these proceedings was issued pursuant to s 29(1) of the ACC Act. The relevant parts of s 29 provide as follows:

(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

20 As I have noted above (see [6]), the ACC Act was amended by two of the pieces of legislation that formed the package of legislation which supported the Northern Territory Intervention. In summary, the first of those, the FACSIA Act, made the following amendments which are relevant to these proceedings:

(a) New definitions were added to the interpretation section of the ACC Act (s 4(1)) to extend the ambit of the ACC’s function to include intelligence operations in relation to Indigenous violence or child abuse. The new definitions applied to the following words or expressions: child, child abuse, Indigenous person, Indigenous violence or child abuse, relevant crime and serious violence.

(b) ‘ Child abuse’ was defined as “an offence relating to the abuse or neglect of a child (including a sexual offence) that is punishable by imprisonment for a period of three years or more”. ‘Serious violence’ was likewise defined by a minimum penalty of three years. Most significantly, the expression ‘relevant crime’ replaced the expression “serious and organised crime”. ‘Relevant crime’ was defined to mean “serious and organised crime or Indigenous violence or child abuse.” The expression “Indigenous violence or child abuse” was defined in to mean: “serious violence or child abuse committed by or against, or involving, an Indigenous person”. Other definitional changes were made to extend the operation of the ACC Act to State agencies and staff.

21 The second piece of legislation, the Australian Crime Commission Amendment Act 2007(Cth), made amendments to ss 28 and 29 of the ACC Act which are not particularly relevant to these proceedings.

CONSIDERATION

22 Because of the way in which NTD8 has reduced the live issues in these proceedings, only two remain for determination. They are, first, in issuing the notice, was Mr Anderson required to take into account the best interests of the children concerned as a primary consideration? Secondly, if he was, did he do so?

Was Mr Anderson required to take into account the best interests of the children concerned as a primary consideration?

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

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.

CONCLUSION

52 For these reasons, I conclude that, as a matter of law, when he was deciding whether it was reasonable to issue the amended notice, Mr Anderson was required to take into account the best interests of the eight young Aboriginal girls concerned, as a primary consideration. I also conclude, as a matter of fact, he failed to do so. He therefore failed to give adequate weight to a relevant consideration of great importance. It follows that he did not properly exercise the power conferred on him under s 29 of the ACC Act in issuing the amended notice.

53 I therefore propose to grant appropriate relief to NTD8 under s 5(1)(e) and 5(2)(b) of the Administrative Decisions (Judicial Review) Act 1977(Cth) in relation to that part of the amended notice that relates to the medical records and other details of the eight young Aboriginal girls. However, because the amended notice is also directed to the medical records of other patients of NTD8, in relation to which there is no longer any challenge, I will hear the parties as to the form that my orders should take.

I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.

Executive Assistant:

Dated: 17 October 2008

Counsel for the Applicant:	Mr A Young instructed by Mr B Midena

Solicitor for the Applicant:	Midena Lawyers

Counsel for the Respondents:	Ms S Maharaj QC instructed by Mr R Prince

Solicitor for the Respondents:	Australian Government Solicitor

Date of Hearing:	30 June and 1 July 2008

Date of Judgment:	17 October 2008

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