FEDERAL COURT OF AUSTRALIA
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C INCORPORATED v AUSTRALIAN CRIME COMMISSION and JEFFREY PHILIP ANDERSON
NTD 9 of 2008
REEVES J
28 NOVEMBER 2008
DARWIN
| IN THE FEDERAL COURT OF AUSTRALIA |
|
| NORTHERN TERRITORY DISTRICT REGISTRY | NTD 9 of 2008 |
| BETWEEN: | C INCORPORATED Applicant
|
| AND: | AUSTRALIAN CRIME COMMISSION First Respondent
JEFFREY PHILIP ANDERSON Second Respondent
|
| JUDGE: | REEVES J |
| DATE: | 28 NOVEMBER 2008 |
| PLACE: | DARWIN |
REASONS FOR JUDGMENT
INTRODUCTION
1 C Incorporated (‘C Inc’) is a large Aboriginal community controlled not for profit organisation situated in Alice Springs in the Northern Territory. It provides primary health care services to Aboriginal and Torres Strait Islander people living in Alice Springs and the surrounding areas. It has been given the pseudonym ‘C Inc’ to assist in protecting the privacy of those of its patients who may be affected by these proceedings.
2 On 20 May 2008, the Australian Crime Commission (‘ACC’) served an amended Notice on C Inc 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 (‘the medical records’). In summary, the medical records related to the presentations by both child and adult patients of C Inc for treatment that may have been associated with sexually transmitted illnesses (‘STIs’), pregnancies and contraception, sexual and/or physical abuse. The sensitivity associated with the very personal nature of this information is obvious. The ACC claimed 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 C Inc originally commenced these proceedings on 9 May 2008 to challenge the original notice that was served by the ACC on 1 April 2008. When the amended Notice was served, C Inc applied to amend its application in these proceedings to challenge that amended Notice (‘the Notice’). C Inc’s challenge to the Notice is based upon a large number of grounds but essentially it claims that it was not reasonable in all the circumstances for Mr Anderson, the ACC Examiner, to issue the Notice. Ultimately the best interests of the child patients affected by the Notice has become the central issue.
4 Some days before C Inc commenced these proceedings, another Aboriginal controlled health organisation in the Northern Territory also commenced proceedings in this Court challenging a similar notice issued by the ACC. That applicant was given the pseudonym NTD8.
5 Initially it was thought that these two sets of proceedings could proceed to hearing at the same time. However, it later became apparent that despite the close similarity between the two sets of proceedings, somewhat different factual and legal issues arose for consideration in each matter. As a result, I heard NTD8’s application about two weeks before I heard this application. I have already delivered my decision in NTD8: see NTD8 v Australian Crime Commission (No 2) [2008] FCA 1551 (‘NTD8’).
6 I mention the NTD8 decision because some of the general factual background and all of the section describing the relevant provisions of the ACC Act set out in that decision, apply equally to this decision. Nonetheless, so that these two decisions can each stand alone, I propose to repeat that material in this decision. I will also add the relevant factual background that is unique to these proceedings and identify the issues that arise.
FACTUAL BACKGROUND
7 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.
8 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.
9 In pursuit of its extended functions, on 5 February 2008, the Board of the ACC issued a Determination (‘the 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;
(c) Enhancing the understanding of the nature and extent of violence or child abuse in Indigenous communities;
(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.
10 Mr Jeffrey Philip Anderson is an Examiner appointed under s 46B(1) of the ACC Act. On 1 April 2008, in his role as an ACC Examiner and as a part of the Special Intelligence Operation, he issued the original notice to C Inc under s 29(1) of the ACC Act.
11 In response, on 9 May 2008, C Inc issued these proceedings under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) seeking to challenge Mr Anderson’s decision to issue that original notice. That application was supported by affidavits by Ms Nardine Rosemary Collier, the solicitor for C Inc, and by Ms Stephanie Bell, the director of C Inc. In addition to these affidavits, C Inc relied upon two further affidavits at the hearing of this matter: one by Dr John Dominic Boffa and the other by Mr Henry Mizow.
12 On 20 May 2008, Mr Anderson issued the Notice. The schedule of documents to be produced under the Notice is contained in an annexure to the Notice, in the following terms:
Copies of documents, electronic or paper copy, including but not limited to case notes, entries and records for all presentations of persons to the C Inc, at its medical clinic situated at ** Alice Springs for the period from 1 January 2007 to 31 December 2007 in relation to:
1. Indigenous Patients, under 16 years of age presenting due to, or with, sexually transmitted illnesses, pregnancies or seeking services relating to contraception and terminations of pregnancies.
Documents relating to (1) above should be inclusive of any personal particulars available including the name, date and place of birth, address and date of persons presenting for treatment or consultation together with the name of the person to whom any such Indigenous patient reported on each occasion (if more than one) in the relevant period.
2. Indigenous children (who have not attained the age of 18 years of age) who have or are being treated due to sexual and/or physical abuse and details of any referrals to any Agency or Department of the Commonwealth or Northern Territory Governments in respect of such presentations.
Copies of documents, electronic or paper copy, including but not limited to case notes, entries and records for all presentations of persons to the C Inc, at its medical clinic situated at ** Alice Springs for the period from 1 January 2007 to 31 December 2007 in relation to:
3. Indigenous domestic violence assaults or sexual assaults on Indigenous persons and details of any referrals to any Agency or Department of the Commonwealth or Northern Territory Governments in respect of such domestic violence assaults or sexual assaults.
Documents relating to (2) and (3) above should be inclusive of any personal particulars available including the name, date and place of birth, address and date of persons presenting and any document which records the name or names and personal particulars of any person or persons who are identified to C Inc by the person presenting (or any person on their behalf) as having assaulted, sexually assaulted, or abused, as the case may be, such person presenting.
In addition, the documents should identify the person to whom any such Indigenous person presented on any occasion (if more than one) in the relevant period.
The * indicates information that has been deleted to protect patient privacy.
13 In both the original notice and the Notice, Mr Anderson decided to include a notation under s 29A(1) of the ACC Act. In the Notice, the notation was to the following effect:
Pursuant to subsection 29A(1) of the Australian Crime Commission Act 2002, disclosure of information about this notice, or any official matter connected with it, is prohibited except to the Federal Court of Australia and the Attorneys-General of the Commonwealth and the States for the purposes of any application challenging the validity of the notice, in which case the applicant’s name is to be suppressed and replaced by a letter and/or number pseudonym, and where section 29B of the Act does not prevent such disclosure.
THE ISSUES THAT ARISE FOR CONSIDERATION
14 By comparison to the notice Mr Anderson issued in NTD8, the notice in this matter includes the following distinguishing features:
· Paragraphs 1 and 2 apply to patients of C Inc who are under the age of 18 years and, therefore, are children. In this respect, these paragraphs are similar to the notice in NTD8: see [2008] FCA 1551 at [12]. However, unlike in NTD8, where eight teenage girls who had received contraceptive treatment were indirectly identified as the patients, these paragraphs do not identify (whether directly, or indirectly) any details of the child patients who may be affected by the notice.
· Paragraph 1 applies to treatment for “sexually transmitted illnesses, pregnancies or … services relating to contraception and terminations of pregnancies”. This is similar to the notice in NTD8, albeit it was limited to the latter aspect and that ultimately became the sole focus of those proceedings: see [2008] FCA 1551 at [12] and [14].
· Paragraph 2 applies to treatment for “sexual and/or physical abuse”. In NTD8, the applicant elected not to pursue its challenge to the similar part of the notice in those proceedings: see [2008] FCA 1551 at [14].
· Given that paragraph 2 specifically applies to children who have been treated for sexual and/or physical abuse, while it is not expressed to be so limited, I consider it can be inferred that paragraph 3 is solely directed to adult patients of C Inc because it refers to almost the same causes for the treatment i.e. sexual assaults or domestic violence assaults. I will therefore proceed to consider this matter on that assumption. Again, in NTD8 the applicant elected not to pursue its challenge to the similar part of the notice in those proceedings: see [2008] FCA 1551 at [14].
15 In late May 2008, following receipt of the Notice, C Inc applied to amend its application in these proceedings so that it was directed to the Notice. C Inc further amended its application at the hearing on 14 July 2008. The grounds set out in the final amended application may be summarised as follows:
1. Under s 5(1)(a) of the Administrative Decisions (Judicial Review) Act 1977 (‘the Act’) - that a breach of the rules of natural justice occurred in that Mr Anderson did not provide C Inc with any opportunity to be heard or consider and respond to the material on which he made his decision to issue the notice.
2. Under s 5(1)(h) of the Act - that was no evidence or other material to justify the making of the decision in that a generic unsourced statement of under reporting of Indigenous related child sexual abuse contained in the statement of facts and circumstances (under the heading ‘child abuse’ on page 9) of the second respondent is not a basis for assuming that the applicant had engaged or intended to engage in such conduct.
3. Under s 5(2)(b) of the Act – that Mr Anderson failed to take a number of relevant considerations into account in the exercise of his power to issue the notice, namely:
· 3(a) and (b) - the impracticability of compliance with the notice as deposed to in the affidavit of Ms Bell.
· 3(c) - the best interests of the children concerned having regard to the possibility that the disclosure of their confidential medical information may discourage them from seeking advice and treatment in the future as deposed to by Dr Boffa.
· 3(d) - the effect of the operation of s 12 of the ACC Act as deposed to in the affidavit of Dr Boffa.
· 3(e) - the disclosure of their confidential medical information was likely to have adverse consequences for the primary health care of Aboriginal patients in Central Australia, as deposed to by Dr Boffa.
· 3(f) - the adverse effect on young Aboriginal mothers seeking ante-natal care as deposed to in the affidavit of Dr Boffa.
· 3(g) - the adverse effect on young people seeking treatment for sexually transmitted infections as deposed to in the affidavit of Dr Boffa.
· 3(h) - whether young Aboriginal people under the age of 16 years were mature enough to consent to sexual intercourse as deposed to in the affidavit of Dr Boffa.
· 3(i) - that the information sought could be obtained from another source as deposed to in the affidavit of Mr Mizow.
4. Under s 5(2)(g) of the Act that Mr Anderson’s exercise of the power was so unreasonable that no reasonable person could have exercised the power in the circumstances where:
· There was no evidence before him to indicate that C Inc or its employees was engaged in the under reporting of Indigenous related child sexual abuse.
· He made no proper consideration of the matters deposed to in the affidavit of Stephanie Bell sworn 8 May 2008.
· He made no enquiry of C Inc or any other persons, which if he had done so, would have brought to his attention the public health consequences as deposed to in the affidavit of Dr Boffa of 10 June 2008.
· He made no enquiry of C Inc or any other persons, which if he had done so, would have brought to his attention the matters deposed to in the affidavit of Henry Mizow dated 10 July 2008, that the availability of the material sought in the Notice could readily [be] obtained by the ACC by other means.
16 At the hearing of this matter, C Inc’s counsel also relied upon, among other things, Article 3 (1) of the Convention on the Rights of the Child (‘the Convention’) and the High Court’s decision in Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 (‘Teoh’). For its part, the ACC’s counsel submitted, among other things, that C Inc had neither complied with the time limit contained in s 57 of the ACC Act, nor sought an extension of time to bring these proceedings. Taking into account these matters and the summary of the grounds of C Inc’s application (above) the following seven issues would appear to arise in these proceedings:
Re C Inc’s proceedings to challenge the Notice
1. Whether the time limit contained in s 57 of the ACC Act applies to these proceedings and, if so, whether C Inc is entitled to obtain an extension of time to bring these proceedings?
Re paragraphs 1 and 2 of the Notice which affect certain child patients of C Inc
2. In deciding to issue the Notice, was Mr Anderson required to take into account the best interests of the child patients of C Inc that would be affected by the Notice, as a primary consideration. If he was, did he do so? If he did not, how does that affect his decision?
3. In deciding to issue the Notice, was Mr Anderson required to have any evidence before him to indicate that C Inc or its employees was engaged in the under reporting of Indigenous related child sexual abuse. If so, did he have such evidence? If he did not, how does that affect his decision?
Re all the paragraphs of the Notice
4. In deciding to issue the Notice, was Mr Anderson required to take into account as a relevant consideration the impracticability of compliance with the Notice as deposed to in the affidavit of Ms Bell. If so, did he do so? If he did not, how does that affect his decision?
5. In deciding to issue the Notice, was Mr Anderson required to take into account as a relevant consideration that the information sought could be obtained from another source as deposed to in the affidavit of Mr Mizow. If he was, did he do so? If he did not, how does that affect his decision?
6. In deciding to issue the Notice, was Mr Anderson required to afford C Inc natural justice by providing it with an opportunity to be heard or consider and respond to the material on which he intended to make his decision? If so, did he do so? If he did not, how does that affect his decision?
7. Was Mr Anderson’s exercise of the power to issue the Notice so unreasonable that no reasonable person could have so exercised the power in the circumstances? If he was, how does that affect his decision?
17 I propose to consider these issues in the order set out above. However, before doing so, I will set out a summary of the relevant provisions of the ACC Act.
THE RELEVANT PROVISIONS OF THE ACC ACT
18 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, among 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).
19 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”.
20 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)). Much of the critical work of the Commission 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).
21 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
(c) as soon as practicable after the issue of the notice.
22 The Notice contained a notation under s 29A(1) of the ACC Act. The relevant parts of s 29A provides as follows:
(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.
(3) If a notation is included in the summons or notice, it must be accompanied by a written statement setting out the rights and obligations conferred or imposed by section 29B on the person who was served with, or otherwise given, the summons or notice.
23 As I have noted above (see [8]), the ACC Act was amended by the package of legislation that supported the Northern Territory Intervention. Those amendments were enacted via by two pieces of legislation: the Families, Community Services and Indigenous Affairs and Other Legislation Amendment (Northern Territory Emergency Response and Other Measures) Act 2007 (Act number 128 of 2007) and the Australian Crime Commission Amendment Act 2007 (Cth) (Act number 168 of 2007).
24 In summary, the former Act made the following amendments which are relevant to these proceedings:
· 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.
· ‘Child’ was defined to mean: “any person is under 18 years of age. ‘Child abuse’ was defined to mean: “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.
25 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 OF THE ISSUES
(1) Whether the time limit contained in s 57 of the ACC Act applies to these proceedings and, if so, whether C Inc is entitled to obtain an extension of time to bring these proceedings?
26 At the hearing of this matter, the ACC’s counsel submitted that C Inc had neither complied with the time limit contained in s 57 of the ACC Act, nor sought an extension of time to bring these proceedings. The ACC stated it neither opposed nor consented to an application for extension of time if one were sought.
27 Section 57 of the ACC Act provides that ss 11(1) to (5) inclusive of the Administrative Decisions (Judicial Review) Act 1977 (Cth) are omitted and replaced by a number of subsections that require, among other things, that “an application to the Federal Court for an order of review in respect of a matter arising under the ACC Act” must be lodged within five days (excluding days on which the Registry is closed) after the day on which the applicant becomes aware of the matter or within such further period as the court, in special circumstances allows.
28 According to the affidavit of Ms Collier, C Inc first became aware of the original notice on 2 April 2008 i.e. one day after it was issued. C Inc commenced its proceedings to challenge that original notice on 9 May 2008 – more than a month outside the time limit set by s 57. On 20 May 2008, the ACC chose to withdraw that original notice and serve the Notice on C Inc. As a consequence, on 27 May 2008, Ms Collier filed an application and affidavit seeking leave to amend C Inc’s application in these proceedings so it challenged the Notice. On the same day, at a directions hearing in these proceedings, I ordered that: “The applicant file and serve its amended application directed to the second notice issued by the respondent by 4.00pm on 28 May 2008.” The ACC did not oppose C Inc’s application to amend. Given that 24 and 25 May 2008 were weekend days when the Registry was closed, C Inc’s application for leave to amend the application in these proceedings to seek to challenge the Notice and the order giving leave to amend, both occurred within five days after the Notice was issued.
29 In these circumstances, by successfully applying to amend these existing proceedings to seek an order for review in respect of the Notice, I consider that C Inc had thereby lodged the required application with this Court within the five day period as required by s 57 of the ACC Act. I do not consider C Inc’s earlier failure to comply with the s 57 time limit affects this conclusion because the proceedings so issued were not a nullity: see Duff v Freijah (1982) 43 ALR 479 at 483 per Northrop J. In my opinion, they could therefore be amended to become a valid application seeking review of the Notice, as they were. If I am wrong about this conclusion, I consider the circumstances outlined above amount to ‘special circumstances’ for the purposes of s 57 of the ACC Act and I would grant any necessary extension of time to C Inc to bring these proceedings.
30 For completeness, I note that the ACC raised a similar issue to this in NTD8 and I reached similar conclusions (see NTD8 at [13]).
(2) Was Mr Anderson required to take into account the best interests of the children affected by the Notice, as a primary consideration? If he was, did he do so? If he did not, how does that affect his decision?
31 In paragraph 3(c) of its amended application, C Inc claimed that Mr Anderson had failed to take into account, as a relevant consideration: “the best interests of the children concerned having regard to the possibility that the disclosure of their confidential medical information may discourage them from seeking advice and treatment in the future as deposed to by Dr Boffa in his affidavit sworn on 10 June 2008.”
32 In its written outline of submissions, C Inc submitted this was a primary consideration and referred to Article 3(1) of the Convention and a number of decisions including Teoh. Further, in paragraphs 3(d) to 3(h) of its amended application, C Inc claimed that Mr Anderson had failed to take into account a number of other relevant considerations, which related to the best interests of the children concerned, without using that expression or claiming that it should be considered as a primary consideration. In summary form, those paragraphs are as follows:
3(d) - the effect of the operation of s 12 of the ACC Act as deposed to in the affidavit of Dr Boffa sworn on 10 June 2008.
3(e) - the disclosure of their confidential medical information was likely to have adverse consequences for the primary health care of Aboriginal patients in Central Australia, as deposed to by Dr Boffa in his affidavit sworn on 10 June 2008.
3(f) - the adverse effect on young Aboriginal mothers seeking ante-natal care as deposed to in the affidavit of Dr Boffa sworn on 10 June 2008.
3(g) - the adverse effect on young people seeking treatment for sexually transmitted infections as deposed to in the affidavit of Dr Boffa., sworn on 10 June 2008.
3(h) - whether young Aboriginal people under the age of 16 years were mature enough to consent to sexual intercourse as deposed to in the affidavit of Dr Boffa sworn on 10 June 2008.
33 The references (above) to: “the affidavit of Dr Boffa sworn on 10 June 2008”, were added to the application in amendments made at the hearing of this matter on 14 July 2008. Further, the claims in the remainder of paragraphs 3(c) to 3(h) were first included in the application when C Inc made its application to amend on 27 May 2008. The original application issued on 9 May 2008, did not include any grounds of relief and instead, referred to the accompanying affidavits of Ms Collier and Ms Bell. While the affidavit of Ms Bell affirmed 8 May 2008, set out a great deal of detail of the difficulties she considered C Inc would have in complying with the original notice, the only mention she made of the impact the original notice would have on the interests of its child patients was the following paragraph: “[C Inc] also believes that complying with the affidavit [sic notice] will have serious consequences on access to our services by young people and have a negative impact on their health and wellbeing.” No details were given of how these serious consequences might arise, what they were, how they might affect access to services, or a myriad of other matters.
34 Likewise, Ms Collier’s affidavit sworn 8 May 2008, makes only a brief mention of this issue in the body of her affidavit as follows: “I also informed Mr Ladlay [an Officer of the ACC] that it was of great concern to [C Inc] that they were being asked to provide the name of their patients.”
35 However, Ms Collier was more forthcoming in the annexed letter she sent to the ACC dated 1 May 2008. In that letter, she gives as the second of two reasons C Inc had for its opposition to the Notice as: “Secondly, that compliance with the request to provide the names of patients will breach patient confidentiality; the effect of which will be that patients will simply stop using the services of [C Inc] for fear of being named, or investigated, and/or criminally prosecuted.” Ms Collier went on to indicate that C Inc could provide some information to the ACC but she made it clear that: “Our client will not however release names of patients unless ordered to do so by the court.” It will be noted that Ms Collier does not distinguish between child patients and adult patients.
36 It follows that by the time Mr Anderson decided to issue the Notice on 20 May 2008, the expression “the best interests of the children” had not appeared in any of C Inc’s materials and C Inc had only given brief and very general details of its objections to the original notice in that regard. As well, Mr Anderson was not aware of the contents of Dr Boffa’s affidavit. . To complete the picture, it is appropriate to set out a summary of the contents of Dr Boffa’s affidavit.
37 Dr Boffa is a Public Health Medical Officer employed by C Inc. He has approximately 20 years experience as a medical officer working with Aboriginal patients in Central Australia. In that context, he has extensive experience in dealing with Aboriginal public health issues. In his affidavit, he opined, among other things, that strict confidentiality is critical to developing a “good trust relationship” with Aboriginal patients, especially with young Aboriginal people. He said that: “Lack of trust, secrecy and provision of private medical information to law enforcement agencies will be counter-productive to public health issues regarding Aboriginal children.” He said that without this ‘trust relationship’, young Aboriginal first-time mothers will not present early and often for ante-natal care and that will have an adverse effect on the health and survival rates of their babies.
38 In relation to treatment for STIs, he opined that: “In order to reduce the rate at which STIs are being transmitted, it is vital that young people feel comfortable to present for testing and treatment whenever they believe they may have put themselves at risk, as well as accept screening opportunities, particularly when they present to health services for another reason”. He opined that if it were known that the medical records for such young people would be provided to the ACC, they would stop seeking such testing and treatment and that was likely to increase the prevalence of STIs and have other adverse consequences for their sexual health.
39 In NTD8, I concluded that the High Court’s decision in Teoh required that in issuing the notice in that matter, Mr Anderson had to take into account the best interests of the children concerned as a primary consideration and that he had failed to do so: see NTD8 at [52]. I therefore set the decision aside under ss 5(1)(e) and 5(2)(b) of the Administrative Decisions (Judicial Review) Act 1977(Cth) – the latter section deals with a failure to take into account a relevant consideration. I will return to the appropriateness of this form of relief later in these reasons. First it is necessary to consider the High Court’s decision in Teoh in some detail.
40 The decision in Teoh was based, in large part, upon the legitimate expectations that flowed from Australia’s ratification of the Convention. Of particular importance was Article 3(1) of the Convention, which provided:
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. (emphasis added)
41 In Teoh, Mason CJ and Deane J said that the ratification of the Convention was a “positive statement by the executive government of this country … that [it] and its agencies will act in accordance with the Convention.” Their Honours then said: “That positive statement is an adequate foundation for a legitimate expectation, absent statutory or executive indications to the contrary, that administrative decision-makers will act in conformity with the Convention and treat the best interests of the children as ‘a primary consideration’. It is not necessary that a person seeking to set up such a legitimate expectation should be aware of the Convention or should personally entertain the expectation; it is enough that the expectation is reasonable in the sense that there are adequate materials to support it. But, if a decision-maker proposes to make a decision inconsistent with a legitimate expectation, procedural fairness requires that the persons affected should be given notice and an adequate opportunity of presenting a case against the taking of such a course. So, here, if the delegate proposed to give a decision which did not accord with the principle that the best interests of the children were to be a primary consideration, procedural fairness called for the delegate to take the steps just indicated.”(at 291).
42 In his decision, Toohey J said: “It follows that while Australia's ratification of the Convention does not go so far as to incorporate it into domestic law, it does have consequences for agencies of the executive government of the Commonwealth. It results in an expectation that those making administrative decisions in actions concerning children will take into account as a primary consideration the best interests of the children and that, if they intend not to do so, they will give the persons affected an opportunity to argue against such a course. It may be said that such a view of ratification will have undue consequences for decision-makers. But it is important to bear in mind that we are not concerned with enforceable obligations, but with legitimate expectations, and that there can be no legitimate expectation if the actions of the legislature or the executive are inconsistent with such an expectation.” (at 302).
43 The other member of the majority in Teoh was Gaudron J. Her Honour agreed with Mason CJ and Deane J (at 304) and concluded: “There is a want of procedural fairness if there is no opportunity to be heard on matters in issue. And there is no opportunity to be heard if the person concerned neither knows nor is in a position to anticipate what the issues are. That is also the case if it is assumed that a particular matter is not in issue and the assumption is reasonable in the circumstances. In my view and for the reasons already given, it is reasonable to assume that, in a case such as the present, the best interests of the children would be taken into account as a primary consideration and as a matter of course. That being so, procedural fairness required that, if the delegate were considering proceeding on some other basis, she should inform Mr Teoh in that regard and give him an opportunity to persuade her otherwise.” (at 305)
44 The Court also held that the words “concerning children” in article 3(1) of the Convention should be given a “broad reading and application”: see Teoh at 289 per Mason CJ and Deane J, and also at 302 per Toohey J.
45 The point made by Toohey J that: “… it is important to bear in mind that we are not concerned with enforceable obligations” is a reiteration of something his Honour said earlier in his decision as follows: “Ratification [of the Convention] of itself does not make the obligations enforceable in the courts; legislation, not executive act, is required. But the assumption of such an obligation may give rise to legitimate expectations in the minds of those who are affected by administrative decisions on which the obligation has some bearing.” (at 301).
46 Notwithstanding these observations, Toohey J at least raised the prospect that the obligation to meet the legitimate expectations may have required the decision-maker in Teoh to place herself in a better position to do so by making inquiries about their circumstances. Ultimately, his Honour decided to dispose of the matter on the basis of a failure to afford procedural fairness (at 303).
47 In their decision, Mason CJ and Deane J said something similar about enforceable obligations, as follows: “The fact that the provisions of the Convention do not form part of our law is a less than compelling reason – legitimate expectations are not equated to rules or principles of law.” (at 291).
48 However, in the concluding paragraphs of their decision, Mason CJ and Deane J seemed to indicate that two consequences may flow from the decision maker’s failure to take into account the best interests of the children as a primary consideration, where they said: “That view entails the conclusion that there was a want of procedural fairness. It may also entail, though this was not argued, a failure to apply a relevant principle in that the principle enshrined in Art 3.1 may possibly have a counterpart in the common law as it applies to cases where the welfare of a child is a matter relevant to the determination to be made. In other respects, we do not consider that there was any failure to take relevant matters into account.” (at 292).
49 The common law right postulated by Gaudron J in Teoh (at 304) could well have given rise to an enforceable obligation, but having speculated on the existence of that right, her Honour decided the matter on the basis that there had been a denial of procedural fairness: see [43] above.
50 If the matter were left there, it seems to me that there may have been two approaches open to the form of relief where it emerged that the decision maker had failed to take into account the best interests of the children as a primary consideration – the first quite clear and the second more tentative: to set aside the decision for failing to afford procedural fairness, or to set aside the decision for failing to take into account a relevant consideration. Of course, the ultimate outcome is the same whichever approach is taken.
51 However, in Minister for Immigration and Multicultural Affairs, Re; Ex parte Lam (2003) 214 CLR 1 (‘Lam’) each of the judges of the High Court seemed to dispose of the latter approach by drawing a clear distinction between substantive and procedural rights, or substantive outcomes and procedural benefits: see Lam at [28] per Gleeson CJ; at [101] per McHugh and Gummow JJ; at [118] – [119] per Hayne J and at [148] per Callinan J.
52 Neither counsel addressed this specific issue about the appropriate form of the relief in this matter, or in NTD8. In both matters the ACC’s counsel referred to Lam (at 32 per McHugh and Gummow JJ, but not the paragraphs referred to above) in support of the following submission:
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.
53 As I read this submission, while it raises the same general issue, it does not address the question: what is the appropriate form of relief if the expectation is not met? I have been unable to locate any other treatment of this specific issue in the submissions made by either counsel.
54 I took the latter approach (above) in NTD8. However, having now considered the issue in some more depth and, in particular, the effect of Lam on Teoh, I consider the preferable approach, and the approach I propose to take in this matter, is the former approach. I emphasise that the ultimate outcome is the same i.e. the decision is set aside.
55 Before I leave the effect of Lam on Teoh, I should state my views on some other aspects that are relevant to the determination of this matter. First, notwithstanding the strong criticisms in Lam of certain aspects of the decision in Teoh, I consider it is clear that the Court in Lam did not go as far as over ruling the decision in Teoh: see Royal Women’s Hospital v Medical Practitioners Board (2006) VSCA 85 at [79] per Maxwell P and 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 chapter 19, particularly pages 312 – 315. That being so, I consider I am bound to follow Teoh.
56 Secondly, if the effect of Lam is that Teoh did not lay down a universal requirement as to what is necessary to support a legitimate expectation, but adopted instead a requirement only for those cases in which the interests of children are in issue (see Lam at [97] per McHugh and Gummow JJ referring to Sanders v Snell (1998) 196 CLR 329 at [53] fn 65 per Callinan J), for the reasons I have given below, I consider that this case (and NTD8 for that matter), falls squarely within that more limited scope of Teoh.
57 Thirdly, if the effect of Lam is that an applicant is required to demonstrate unfairness in the procedure followed, not just an un-met expectation (see Lam at [34] per Gleeson CJ and at [111] per Hayne J and Untan v Minister forImmigration & Multicultural & Indigenous Affairs [2003] FCAFC 69 at [99]), for the reasons I have given below, I consider the necessary level of unfairness has been demonstrated in this case.
58 So, in summary, relevant to this case, I consider the authorities discussed above show that the expectation that an administrative decision-maker will treat the best interests of children as a primary consideration, arises from a combination of Australia’s ratification of the Convention; the fact that the decision in question concerns children; and the fact that the decision-maker has not given notice that he or she intends to do otherwise than meet that expectation. Then, if it emerges that the administrative decision-maker has not treated the best interests of the children as a primary consideration, he or she will have failed to afford procedural fairness and the decision will be set aside on that ground.
59 In this case the decision to issue the Notice clearly concerns children. By its terms, the Notice requires C Inc to disclose: “any personal particulars available including the name, date and place of birth, address and date of persons presenting for treatment or consultation”, of any Aboriginal patient of C Inc under the age of 16 years who presented due to or with: “sexually transmitted illnesses, pregnancies or seeking services related to contraception and terminations of pregnancies”, or any Aboriginal children under the age of 18 years: “who have or are being treated due to sexual and/or physical abuse” (emphasis added).
60 Furthermore, it is clear that Mr Anderson did not give notice to anyone, including the children concerned, or their parents or guardians, that he intended to make the decision without satisfying the expectation that the best interests of the children concerned would be treated as a primary consideration. In fact, the possibility that the children concerned (or their parents or guardians) could be given notice indirectly i.e. by C Inc, was deliberately foreclosed upon by Mr Anderson’s decision to include a s 29A notation on the Notice.
61 In my view, it therefore follows from Teoh and the circumstances outlined above, that in making his decision to issue the Notice, Mr Anderson was required to satisfy the expectations to treat the best interests of the children concerned as a primary consideration. If it emerges from a consideration of the materials that he did not do so, his decision to issue the Notice should be set aside because he failed to afford procedural fairness.
62 Before turning to consider those materials, I should say something about a number of other matters that were raised in Teoh and that I consider have some bearing on the determination of this matter.
63 As appears in the quote from Mason CJ and Deane J above (at [41]), it does not matter that the person seeking to assert the expectation is not aware of the Convention, or does not personally have the expectation at the time, provided that, assessed objectively, the expectation reasonably arose in the circumstances: see also at 301 per Toohey J, cf McHugh J at 313 strongly dissenting and the discussion in Lam at [92] – [96] per McHugh and Gummow JJ and Duxbury above at 309 - 310. Indeed, in Teoh, the significance of the Convention did not emerge at the trial and only surfaced as an issue at the hearing before the Full Court: see Teoh at 298 per Toohey J. For these reasons, I consider C Inc’s failure to clearly express the expectation by reference to the Convention until the hearing of this matter is of little consequence (see [31] – [35]). Of course, none of the child patients of C Inc could have previously held this expectation as they were not aware of Mr Anderson’s decision, principally because of the s 29A notation he included in both the original notice and the Notice (see [13] and [22] above). To complete the circle, C Inc could not tell them about the existence of the Notice and therefore could not gain any better assessment of what their expectations may be.
64 In the concluding words of the relevant part of his decision, Toohey J said: “…that there can be no legitimate expectation if the actions of the legislature or the executive are inconsistent with such an expectation.” In my opinion, there are no statutory or executive indications to the contrary of the expectation arising in this matter. As in NTD8 (see at [25]), the ACC accepted that Mr Anderson was required to take into account the best interests of the children concerned as a consideration. This flowed from the purpose and objects of the ACC Act and, among other things, the Determination. Indeed, as the ACC pointed out in its outline of written submissions, the Minister’s Second Reading Speech on the package of legislation, which included the amendments to the ACC Act, contained numerous statements to the effect that the object of the amending legislation was to ensure “the safety and wellbeing of children” and the “protection of children” from various scourges, including sexual abuse and domestic violence. Furthermore, the Minister noted in his Second Reading Speech that the amending legislation would allow Australia to implement its “obligations under Human Rights treaties”. The Convention was presumably one of the treaties the Minister had in mind. Indeed, in my opinion, it would be a perverse outcome if the Determination and the Special Intelligence Operation conducted pursuant to it, both of which are ultimately aimed at protecting Aboriginal children, contained some legislative or executive indication that in the course of pursuing them, the officers of the ACC would not treat the best interests of those same Aboriginal children as a primary consideration.
65 In NTD8, in addition to referring to Teoh, I referred to a number of decisions of this Court under the Migration Act 1958 (Cth) which discussed the application of the principle laid down in Teoh. Those Migration Act decisions (including Teoh which was also a decision made under the Migration Act 1958 (Cth)), all involved family groups of children of various sizes ranging from one child in Sebastian v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 31; and up to six children, in the case of Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608; and seven children, in the case of Teoh.
66 Similarly, NTD8 involved a relatively small group, albeit not a family group, comprised of eight Aboriginal girls aged between 13 and 15 years, who had received contraceptive treatment and in relation to whom there was no suspicion of abuse or any consequential requirement for mandatory reporting. In my view, a critical factor in NTD8 and the Migration Act decisions I have mentioned, was that the administrative decision in each case involved a relatively small group of children, whether a family group, or the group of eight Aboriginal girls in NTD8. Furthermore, the interests or expectations of each member of the groups concerned were affected in a similar kind of individual, direct and immediate way, as described by Mason J in Kioa v West (1985) 159 CLR 550 (‘Kioa’) at 584.
67 While none of the members of the Court in Teoh expressly mentioned these considerations, it can be safely assumed that the majority did not see them as preventing the expectation reasonably arising in that case which involved seven children. However, in my view, these considerations beg the question whether, the principle laid down in Teoh applies to a larger more diverse group of children, such as arises in this case. Here, the group of child patients affected by Mr Anderson’s decision to issue the Notice could number many more than the cases referred to above. Ms Bell said in her affidavit that: “[C Inc] sees approximately 6,500 current patients per year and 1,800 visitors. We provide over 47,000 episodes of care to our current patients and over 5,000 episodes of care to the visitors.” Furthermore, by its terms, the Notice applies to both sexes and the age range specified is from zero to under 18 years. On the other hand, paragraphs 1 and 2 of the Notice only require the production of the medical records for C Inc’s patients who had received treatment arising from specific circumstances, namely: “sexually transmitted illnesses, pregnancies or seeking services relating to contraception and termination of pregnancies”, and “sexual and/or physical abuse”.
68 In the authorities on procedural fairness and the circumstances in which it is attracted, a clear distinction has been drawn between decisions affecting the rights, interests and expectations of a particular person or persons and those affecting the rights, interests and expectations of the public, or a section of the public, at large: see Haoucher v Minister for Immigration & Ethnic Affairs (1990) 169 CLR 648 at 652 per Deane J; Customs v Kawasaki Motors (No 1) (1991) 32 FCR 219, Hill and Heerey JJ at 238 – 241; Queensland Medical Laboratory v Blewett (1988) 84 ALR 615 at 637 per Gummow J and Botany Bay City Council v Minister of State for Transport and Regional Development (1996) 66 FCR 537 at 553 – 554 per Lehane J.
69 In Kioa, discussing the circumstances in which the principles of natural justice were presumed to condition the exercise of a statutory power, Brennan J observed that it was not the kind of individual interest that is important, but the “manner in which it apt to be affected … in determining whether the presumption is attracted” (at 619). His Honour went on to add that the presumption would be attracted: “if a power is apt to affect the interests of an individual in a way that is substantially different from the way in which it is apt to affect the interests of the public at large”, or “which is apt to affect the interests of an individual alone or apt to affect his interests in a manner which is substantially different from the manner in which its exercise is apt to affect the interests of the public”.
70 In this case, the manner in which the individual interests of the Aboriginal children in this group is to be affected, is determined by the terms of the Notice. Paragraphs 1 and 2 of the Notice require C Inc to disclose: “Any personal particulars available including the name, date and place of birth, address and date of persons presenting for treatment or consultation”, of any Aboriginal patient of C Inc under the age of 16 years who presented due to or with: “Sexually transmitted illnesses, pregnancies or seeking services related to contraception and terminations of pregnancies”, or any Aboriginal children under the age of 18 years: “Who have or are being treated due to sexual and/or physical abuse”.
71 In short, the individual interests of each member of this group of Aboriginal children in the privacy and confidentiality of their medical records is to be overridden completely and the information disclosed to the ACC. Moreover, that is to be done in secrecy and without these children or their parents having any say in it. Given the very personal nature of the medical records sought, it is not difficult to foresee that the disclosure of information of this kind could cause acute embarrassment to the Aboriginal children concerned and may have implications for their relationships with other persons. I should add that the ACC’s answer that they will be protected because this invasion of their interests is to be kept confidential does not, in my view, make it any more acceptable. After all, medical records in general, let alone those dealing with a person’s sexual health or activities, are generally regarded as being among the most personal information about an individual: see Carolyn Doyle and Mirko Bagaric Privacy Law in Australia The Federation Press 2005 at pages 46 - 48. Viewed in this way, I consider the Notice affects the interests of each and every individual member of this group of Aboriginal children in a direct and immediate way. Conversely, even though this group may be large it does not, in my view, constitute a section of the public as described in the authorities referred to above, such that the decision does not attract procedural fairness.
72 The ACC relied upon a series of decisions of this, and other Courts, in the main dealing with the use of inquisitorial or coercive powers to submit that natural justice or procedural fairness does not apply to the exercise of what they submitted, is a similar power under s 29 of the ACC Act, including: May v Commissioner of Taxation (1999) 92 FCR 152 (a notice under section 261 of the Income Tax Assessment Act 1936 (Cth)); MM & Anor v ACC [2007] FCA 2026 (a decision made by an examiner under section 29 of the Australian Crime Commission Act 2002 (Cth) in relation to a taxation avoidance investigation); Structureco Inc v Registrar of Trademarks [2003] 132 FCR 558 (involving section 202 of the Trademarks Act 1995 (Cth)); Woodroffe v Deputy Commissioner of Taxation (2000) 179 ALR 750 (a notice given under s 218 of the Income Tax Assessment Act 1936 (Cth)); Johns v ASC (1993) 178 CLR 408 at 430 – 431 (exercise of a power under section 127(4)(b) of the Australian Securities Commission Act 1989 (Cth)); Riverside Nursing Care Pty ltd v Bishop (2000) 100 FCR 519 (a duty imposed under section 67 of the Aged Care Act 1997 (Cth)).
73 In the alternative, the ACC submitted that if the rules of the natural justice or procedural fairness applied in the circumstances of this case, they did not give rise to the requirements that Mr Anderson had to give a notice and an opportunity to be heard before he issued the Notice under s 29 of the ACC Act. It relied upon Kioa v West (1985) 159 CLR 550; Public Service Board v Osmond (1986) 159 CLR 656; Haoucher v Minister for Immigration & Ethnic Affairs (1990) 169 CLR 648; and Saitta Pty Ltd v Commissioner of Taxation and Anor [2002] FCA 1105.
74 If these submissions are directed to paragraphs 1 and 2 of the Notice that concern children, I consider they should be rejected. If they are directed to paragraph 3 of the Notice, which I have assumed is solely directed to adult patients of C Inc, I have addressed that issue in [106] below. In relation to paragraphs 1 and 2, I consider these submissions should be rejected because the obligation to afford procedural fairness here arises from the peculiar combination of circumstances involving a group of children, Australia’s ratification of the Convention, and the High Court’s ruling in Teoh (see [58] above). Insofar as the Notice affects the child patients of C Inc, I therefore consider that Teoh sets out the relevant principles to be applied.
75 Then the question arises: Did Mr Anderson treat the best interests of these children as a primary consideration? Before examining the evidence in relation to this question, it is appropriate to reiterate some of the observations I made in NTD8 about how an administrative decision-maker would go about taking into account the best interests of children as a primary consideration. They were as follows (see [30], [31] and [40] – [43] of NTD8 and the cases referred to):
· In assessing the best interests of children the decision-maker has to identify what the best interests of those children are and what they call for in the circumstances.
· It is not necessary for the decision-maker to expressly mention the expression ‘best interests of the child’ or ‘primary consideration’, provided that it appears from a fair consideration of the materials that he or she did in fact take them into account; and on that basis.
· While the best interests of the children concerned have to be taken into account as a primary consideration that did not mean that other considerations have to be ignored.
· Other considerations that were required by the circumstances of a particular case to be primary considerations could require equal, but not paramount, weight provided that those other primary considerations were not treated as inherently more significant than the best interests of the children as a primary consideration.
· Moreover, those other primary considerations could be considered to be of such strength that they outweigh the best interests of the children concerned as a primary consideration.
· The decision-maker is entitled to take into account the expectations of the Australian community as a primary consideration, provided he or she has considered the best interests of the children concerned as a primary consideration of equal, but not paramount, significance.
76 In relation to the last few observations above, I would add this. In my view, the role of other primary considerations is much more limited in this case than in the migration cases from which those observations were distilled. In those migration cases, the other primary consideration was the public interest, most commonly in either deporting or refusing to grant citizenship to a person considered to be of bad character. In all those cases, that public interest primary consideration, competed with the best interests of the children concerned as a primary consideration. However, in this case, the public interest being served by the ACC, including its pursuit of the Determination and the Special Intelligence Operation, is the protection of Aboriginal children, some of whom include the group of Aboriginal children affected by the Notice. The two primary considerations (if there are two), therefore overlap. In my view, there is therefore little, if any, room for competition between competing primary considerations in this case.
77 These observations address many of the submissions made by the ACC to the effect that the terms of the Determination meant that Mr Anderson was bound by it in considering the scope and purpose of the Special Intelligence Operation. I took this to mean that they would therefore override all other considerations, including the best interests of the children concerned. In my view, that submission must be rejected. The existence of some other primary consideration does not simply override the best interests of the children as a primary consideration. All the more so in this case where the most obvious other primary consideration ultimately serves the same purpose i.e. the best interests of Aboriginal children. Nonetheless, if Mr Anderson thought otherwise, provided that he considered the terms of the Determination and the scope and purpose of the Special Intelligence Operation as primary considerations of equal but not paramount weight to the best interests of the children concerned, he was quite entitled to conclude that those primary considerations ultimately outweighed the best interests of the children concerned as a primary consideration. But he must go through the exercise of assessing and balancing both.
78 On this aspect it is also instructive to note what happened in some of the authorities I have referred to above. In Teoh the decision-maker did mention in her decision that the children faced a “very difficult and bleak future”. She then balanced that against the requirement of a Departmental policy and concluded that the policy prevailed. The defect identified by the Court was in treating the policy as a primary consideration not the children’s best interests: see 292 per Mason CJ and Deane J. In Perez v Minister for Immigration & Multicultural Affairs [2002] FCA 450Allsop J concluded that “nowhere did the delegate identify for himself [the children’s best interests] or what they called for” (at [118]. In Wan v Minister for Immigration & Multicultural & Indigenous Affairs [2000] FCA 1822the Tribunal did make some assessment of what the children’s best interests were, however the Court found that it had failed to consider a number of significant matters (at [30]) and did not refer anywhere in it reasons to the best interests of the children as “a primary consideration” (at [31]). On the other hand, in Sebastian the Court found that the Tribunal had properly considered the best interests of the child concerned because it began with the assumption that those interests would be best served by her remaining with her parents (at [13]- [15]).
79 In NTD8, Mr Anderson frankly and specifically conceded, in cross-examination, that he had not taken the best interests of the children concerned into account as a primary consideration: see [37] of NTD8. Because it was originally intended that these two matters be heard together, at the time I delivered my decision in NTD8, I gave some consideration to whether I could have regard to that evidence in deciding this matter. Before doing so, I asked the parties to make further written submissions on that issue. In its written submissions, the ACC objected to that course. Essentially, it submitted that since the two matters had proceeded as separate matters and the factual circumstances and issues that arose in the two matters were quite different, it was not in the interests of justice that I effectively re-open the hearing of this matter and allow the tender of that evidence as fresh evidence. I consider those submissions have merit and I have therefore decided that I should not have regard to the evidence Mr Anderson gave in the NTD8 matter in deciding this matter.
80 Turning then to the evidence of Mr Anderson in this matter. As I have noted elsewhere, Mr Anderson swore an affidavit in these proceedings in which he described the process he followed and the matters he took into account in making his decision. He annexed to his affidavit all the relevant documents albeit that parts of some were redacted because of public interest immunity concerns. At paragraph 11 of his affidavit, Mr Anderson summarised that process as follows:
Having:
· read the Statement of Facts and Circumstances (in its original form);
· regard to my knowledge and experience of such matters including briefings by the ACC’s anthropologist, NIITF [National Indigenous Violence and Child Abuse Intelligence Taskforce] staff and general knowledge collected from working as an Examiner with such matters;
· taken into account he Applicant’s objections to production regarding the task and costs associated with locating documents sought in the First notice an a perceived breach of patient confidentiality in revealing the names and details of clients (as deposed in the affidavit of Ms Stephanie Bell affirmed on 8 May 2008 (the Bell Affidavit)) and the claim that such disclosure may impact on clients attending the Applicant’s clinic in the future, I was satisfied that it was reasonable in all the circumstances pursuant to subsection 29(1A) of the ACC Act, to issue the Notice. In accordance with that subsection I recorded my reasons for the issue of the Notice in writing (the Reasons).
81 The statement of facts and circumstances mentioned in the first dot point (paragraph 11 above) included a detailed description of the objectives and priorities of the NIITF, the purpose and objectives of the Special Intelligence Operation, the prevalence of child abuse on Aboriginal communities, the “likely significant under-reporting of [child abuse] by victims, agencies and community members”, and the details of C Inc’s operations. However, so far as I can see, it does not in any way expressly or implicitly refer to the best interests of the Aboriginal children concerned here as a consideration, much less a primary consideration.
82 Under cross-examination, Mr Anderson described the briefings, referred to in the second dot point (paragraph 11 above). He said he had received briefings from the ACC’s anthropologist, Ms Lloyd and from NIITF (‘National Indigenous Violence and Child Abuse Intelligence Taskforce’) staff, particularly Mr Ladlay, who had apprised him of the contents of the affidavits of Ms Bell and Ms Collier. He also described what he meant when he referred to his “general knowledge collected from working as an Examiner with such matters”, as follows:
Well, it was knowledge that related to supposed or alleged practices in relation to under-reporting in relation to child abuse, in relation to intimidation in Indigenous communities, in relation to the suggestion that some non-indigenous people, including doctors, were inclined not to report in some circumstances. I was concerned about what I learnt in relation to issues of consent, and what amounted to consent, and concerns in that regard. All of those matters are within the rubric of the general knowledge to which I referred in my previous answer.
83 Apart from mentioning the general issues of Aboriginal child abuse and consent, it will be noted that Mr Anderson did not suggest that his knowledge and experience, or the briefings he received from NIITF staff involved any assessment of the best interests of the Aboriginal children concerned here as a consideration, much less a primary consideration.
84 The written reasons Mr Anderson recorded for the purposes of s 29(1A), (referred to in the final sentence of paragraph 11 above), were as follows:
· Based upon my consideration of the statement of facts and circumstances and the legal submissions which are referred to above:
· I was satisfied that the operation was within the terms of the Determination and that the Determination was still operative.
· I was satisfied that it was reasonable in all the circumstances that the Notice be issued to the party to whom it is directed.
· I was satisfied that it was reasonable in all the circumstances that the Notice be issued in the terms approved by me.
· 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.
· 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.
85 In these written reasons it will be noted that there is no mention of the best interests of the children concerned here as a consideration, much less a primary consideration. The final page of the legal submissions referred to in the first dot point of these written reasons, refers to C Inc’s objections to the original notice issued by Mr Anderson and states: “C Inc also raised the issue that in complying with the Notice it would impact, (by disclosing client’s details) on the relationship with clients and on their future attendance at the clinic.” This appears to be referring to the statements made by Ms Bell and Ms Collier (see [33] – [35] above). If so, this statement is curious in that it does not distinguish between adult and child clients, whereas, Ms Bell (but not Ms Collier – see [35] above), expressly did where she said: “Complying … will have serious consequences on access to our services by young people and have a negative impact on their health and wellbeing”. In my view, this suggests that neither the legal advisor nor Mr Anderson had turned his mind to the particular interests of the child clients of C Inc who may have been affected by the Notice.
86 Mr Anderson was asked in cross-examination about, what was described as, the public health consequences of complying with the Notice. The cross-examination proceeded as follows:
MS GEARIN: Now, Mr Ladlay didn’t mention anywhere in his legal advice to you that there were any public health consequences of compliance, did he?
MR ANDERSON: He told me that there was an allegation that there might be public health consequences of compliance.
MS GEARIN: It is not in his legal advice to you, is it?
MR ANDERSON: No, he told me that.
MS GEARIN: Yes. Well, that’s what you say now?
MR ANDERSON: No, he told me that.
MS GEARIN: Did you make - - -?
MR ANDERSON: - - - I say now – I say now that he told me on 20 May that.
MS GEARIN: So you had a conversation with him on 20 May, did you?
MR ANDERSON: I did.
MS GEARIN: Did you make a note of it?
MR ANDERSON: I made a note of the fact that I’d had a conversation. I didn’t make a note of the detail of the conversation.
87 Assuming that the public health consequences of complying with the Notice is meant to refer to C Inc’s objections to the original notice, this part of the cross-examination of Mr Anderson also demonstrates, in my view, that he did not turn his mind to the particular interests of the child clients of C Inc who may be affected by the Notice. Indeed, the whole of Mr Anderson’s cross-examination is significant for its lack of any mention of the question of the best interests of the Aboriginal children concerned here, or the Convention, or primary considerations. Of course, that is as much a reflection of the questions asked as the answers given.
88 At this juncture, I should note that the counsel for C Inc later submitted to me that I should disbelieve Mr Anderson on this and other evidence that he gave about what matters he was aware of and/or took into account in making his decision because “the contemporaneous documents at the time are inconsistent with it”. This was later altered to a submission that while the contemporaneous records did not contradict Mr Anderson’s evidence instead some of his evidence was not recorded in those contemporaneous records. I reject this submission. I do not consider that a failure by Mr Anderson to keep a record of every matter of which he was aware, or upon which he relied, in making his decision, is a ground for disbelieving him on his oath. From my observations of Mr Anderson when giving his evidence and from my review of the transcript of his evidence, I consider he gave his evidence in a careful manner and I could not detect any relevant contradictions in it.
89 I should add that there was no statutory obligation upon Mr Anderson to keep records of all the matters he was aware of or relied upon in making his decision. The only relevant statutory obligation in the ACC Act is that contained in s 29(1A) to record in writing the reasons for the issue of the Notice Mr Anderson’s written reasons have already been referred to above. The identical provisions of s 28(1A) of the ACC Act have been held to be for the purposes of Parliamentary oversight and not for the purposes of judicial review: see Barnes v Boulton (2004) 139 FCR 356 per Finn J. Nonetheless, Mr Anderson complied with the requirements of s 29(1A) and those reasons were subsequently discovered to C Inc in the course of these judicial review proceedings.
90 The most significant evidence bearing upon the issue of what Mr Anderson took into account in making his decision is contained at the following paragraphs of his affidavit: (emphasis added)
[14] I did have “regard to the possibility that the disclosure of child clients’ confidential medical information may discourage those clients from seeking medical advice and treatment in future”. However, I deliberately required the identity and certain particulars of children (and adults) as noted in the Notice. I was satisfied that it was critical in order to meet the objects of the ACC Act and Determination that I issue the Notice in the terms that I did. I issued the Notice after balancing the objects of the ACC Act and the Determination against the Applicant’s objections as raised at that time and of which I was appraised.
[15] I was aware at the time I issued the Notice that there was evidence of under-reporting of sexual abuse at some medical clinics in remote communities due to either intimidation of non-Indigenous staff including health providers or a particular view held by some long serving non-Indigenous staff as to the acceptance of certain alleged cultural sexual practices. This matter was of serious concern to me and needed to be explored properly with the Applicant and persons/entities in the position of the Applicant.
[17] I was also aware that the concept of consent (as it relates to sexual activities) was often difficult for young Indigenous girls to understand and act upon. In this regard it is important to note that the information sought by the Notice included information concerning Indigenous children under the age of consent (under 16 years of age) presenting to the Applicant’s medical clinic for sexual related treatment or consultation.
[18] I had the following matter in my mind when I made the request for the information contained in the Notice:
the prevalence of violence related and child/sexual abuse offences [in] Indigenous communities;
the need for the Commonwealth and its partner agencies to understand and manage incidents of under-reporting of child/sexual abuse;
the need for the Commonwealth and its partner agencies to develop strategies to understand issues relating to consent to sexual activity by young girls and any consequential medical treatment (if relevant given their age);
the need for the Commonwealth and its partner agencies to understand and assess whether sexual activity at an early age in young girls was indicative of and/or afforded insight into the neglect of such children in Indigenous communities.
[20] When I issued the Notice I considered that it was important to ensure the confidentiality of the Notice and of the information requested by it. That was the reason for the subsection 29A(1) notation, which I considered achieved those objectives. I did consider the alleged consequences of a “breach of patient confidentiality” and “adverse primary health consequences for clientele once that trust is breached”.
[22] I took into account issues concerning the on-going health of the children and the need for children to continue to present to the Applicant’s clinic and receive proper medical attention. Having regard to the ACC Act and the Determination concerning Indigenous violence and child abuse in all Indigenous communities, I was of the view that such information was required in order to meet the objective of the ACC Act and the Determination which in my view are concerned with the welfare and the best interests of the children.
[23] I took into account the Applicant’s objections in the manner referred to above and, in reaching a decision to issue the Notice, balanced the requirement that names and details of the Applicant’s clients be provided against the objectives of the ACC Act and the special operation under the Determination. I was at the time I issued the Notice, and still am, of the firm belief that the documents sought by way of the Notice are relevant to the special peroration and are necessary for the ACC to give effect to that special operation.
91 In these paragraphs there is a mention of the child clients of C Inc. First, in paragraph [14] Mr Anderson deals specifically with the possibility that the disclosure of C Inc’s child clients’ confidential medical information “may discourage those clients from seeking medical advice and treatment in future”. This appears to be a quotation from paragraph 3(c) of C Inc’s application. Mr Anderson purports to dispose of that issue by relying upon the s 29A notation he inserted in the Notice. Significantly, having ruled out the possibility for any procedural fairness by giving notice, he does not proceed to assess what the best interests of C Inc’s child clients may be in the circumstances. To the contrary, he seems to assume that he only needs to deal with the applicant’s objections. Moreover, he certainly does not treat the best interests of those child clients as a primary consideration because he concludes with the statement: “I issued the Notice after balancing the objects of the ACC Act and the Determination against the applicant’s objections as raised at that time and of which I was appraised.” Paragraph [22] is to similar effect. Although Mr Anderson does add at the end of that paragraph a general reference to “the welfare and the best interests of the children”, the children he is referring to do not appear to be the same group as the children he refers to in the first few lines of that paragraph i.e. the child patients of C Inc. If this is so, this suggests to me that Mr Anderson seems to be preferring the best interests of Aboriginal children in general, to the best interests of the Aboriginal children affected by the notice. Whatever may be the case, there is no indication that Mr Anderson has assessed the best interests of the Aboriginal children who may be affected by the Notice, much less taken them into account as a primary consideration. Otherwise, these paragraphs of Mr Anderson’s affidavit contain numerous references to the general issues of child abuse, its under-reporting, consent and domestic violence, but no indication that he has adverted to the critical primary consideration.
92 Taking into account all this material, I consider that a fair reading of it shows that:
· Nowhere does Mr Anderson embark upon any assessment of what the best interests of this particular group of children are, or what their best interests may call for in the circumstances.
· While he does mention the expression the ‘best interests of the children’ once, he does not appear to be referring to the Aboriginal children affected by the Notice. He does not mention the expression ‘primary consideration’ anywhere.
· There is extensive reference to other considerations Mr Anderson considered to be of importance including the objects of the ACC Act, the objects of the Determination, the issue of under-reporting of sexual abuse at some medical clinics in the Northern Territory and the objectives of the Special Intelligence Operation.
· Nowhere is there any indication Mr Anderson engaged in any process of weighing those other considerations against the consideration of the best interests of this particular group of Aboriginal children as a primary consideration.
· Instead, Mr Anderson appears to have had regard to those other considerations as the only considerations in coming to his decision.
93 In summary, I find that in making the decision to issue the Notice, Mr Anderson did not treat the best interests of this particular group of Aboriginal children as a primary consideration. It follows that he failed to afford them procedural fairness and his decision must be set aside, at least insofar as it affects them i.e. paragraphs 1 and 2 of the Notice.
(3) Was Mr Anderson required to have any evidence before him to indicate that C Inc or its employees was engaged in the under reporting of Indigenous related child sexual abuse. If so, did he have such evidence?
94 In paragraph 2 of its application, C Inc relies upon s 5(1)(h) of the ADJR Act and claims that:
There was no evidence or other material to justify the making of the decision in that a generic unsourced statement of under reporting of Indigenous related child sexual abuse contained in the statement of facts and circumstances (under the heading ‘child abuse’ on page 9) of the second respondent is not a basis for assuming that the applicant had engaged or intended to engage in such conduct.
95 This claim clearly relates to paragraph 2 of the Notice which seeks the medical records of Aboriginal children “who have or are being treated due to sexual and/or physical abuse”. Because I have already concluded that paragraphs 1 and 2 of the Notice should be set aside for failure to afford procedural fairness, it is not necessary to consider this claim.
(4) Was Mr Anderson required to take into account as a relevant consideration the impracticability of compliance with the Notice as deposed to in the affidavit of Ms Bell. If so, did he do so?
96 In paragraphs 3 (a) and (b) of its application, C Inc relies upon s 5(2)(b) of the ADJR Act and claims that:
The first respondent failed to take into consideration a relevant consideration, namely, the impracticability of compliance with the notice to attend and produce in the time allowed as deposed to in the affidavit of Ms Bell sworn on 8 May 2008.
The first respondent failed to take into account a relevant consideration, namely, as deposed to in the affidavit of Ms Bell sworn on 8 May 2008, that compliance will require the employment of an appropriate professional in an organisation that is community funded. A request for funding was refused.
97 This claim and the remainder of the claims below relate to the whole of the Notice. However, because I have already concluded that paragraphs 1 and 2 of the Notice should be set aside for failure to afford procedural fairness, I only need to consider the remainder of these claims insofar as they relate to paragraph 3 of the Notice, which I have assumed only affects the adult patients of C Inc: see [14] above.
98 At the outset it should be recalled that the affidavit of Ms Bell affirmed 8 May 2008 related to the original notice. Despite the fact that almost two months elapsed between the issue of the Notice and the hearing of this matter on 14 July 2008, no further affidavit material was filed or relied upon directed to this issue. There is therefore no evidence before me which describes any impracticability of complying with the Notice.
99 In Ms Bell’s affidavit affirmed 8 May 2008, she deposed to what she described as the “enormity of the task” involved in searching for and gathering together the records necessary to comply with the original notice. She also deposed to the resources that she considered would need to be deployed and the time and costs associated with undertaking that task.
100 Mr Anderson said in his affidavit sworn 8 July 2008 that he was appraised of the contents of Ms Bell’s affidavit before he issued the Notice. He said that in issuing the Notice, he took into account, among other things, the concerns expressed by Ms Bell about the impracticability of compliance with the original notice. As a result, he narrowed the scope of the Notice in the following four respects:
· Whereas the original notice applied to all clinics operated by C Inc, the Notice only applied to its Alice Springs clinic.
· Whereas the original notice applied to all programs operated by C Inc, the Notice did not apply to any of C Inc’s programs.
· The time frame was reduced from 1 January 2006 to 1 April 2008 for all three paragraphs of the original notice; to, from 1 January 2007 to 31 December 2007, in relation to paragraphs 1 and 2 of the Notice; and to, from 1 January 2008 to 31 March 2008, in relation to paragraph 3 of the Notice.
· The requirement in the original notice to produce medical records in relation to Indigenous children being treated due to neglect and failure to thrive was not included in the Notice.
101 Whether or not Mr Anderson was required as a matter of law to take into account as a relevant consideration the difficulties of compliance with the original notice identified in Ms Bell’s affidavit, the fact is he did. Since there is no evidence to suggest that there are any similar difficulties in complying with the Notice, I consider this claim must fail.
(5) Was Mr Anderson required to take into account as a relevant consideration that the information sought could be obtained from another source as deposed to in the affidavit of Mr Mizow. If so, did he do so?
102 In paragraph 3 (i) of its application, C Inc relies upon s 5(2)(b) of the ADJR Act and claims that:
The first respondent failed to take into account a relevant consideration namely that the information sought in the notice could readily [be] obtained by the first respondent by other means as deposed to in the affidavit of Henry Mizow dated 10 July 2008.
103 Mr Mizow is the Corporate Services Manager of C Inc. He annexed to his affidavit a copy of the funding agreement between C Inc and the Commonwealth of Australia. He pointed to Clause 11 of that Agreement and claimed that it allowed the Commonwealth Department of Health and Aging to conduct an audit of C Inc in relation to the primary health care services it provided under the Agreement as prescribed in Schedule A to the Agreement.
104 The ACC submitted that Mr Anderson had a general discretionary power under s 29 of the ACC Act to obtain information and that power was only confined by the objects of the ACC Act and the Determination. It was not confined by the fact the information was available from some other source. I agree with that submission. If the power under s 29 was confined in the way suggested by C Inc, it would lead to the absurd situation where every time particular information was retained by more than one source, (which in the present day and age, is always likely to be the case), the ACC would be met with this objection. Then it would not be able to obtain the information from either source because each would be able to point to the other by way of objection.
(6) In deciding to issue the Notice, did Mr Anderson fail to afford C Inc natural justice by failing to provide it with an opportunity to be heard or consider and respond to the material on which he made his decision?
105 In paragraph 1 of its application, C Inc relies upon s 5(1)(a) of the ADJR Act and claims that:
That a breach of the rules of natural justice occurred in that the decision maker did not provide the applicant with any opportunity to be heard or consider and respond to the material on which he made his decision to issue the notice.
106 As noted above (at [72]), the ACC relied upon a series of decisions of this, and other Courts, in the main dealing with the use of inquisitorial or coercive powers to submit that natural justice or procedural fairness does not apply to the exercise of what they submitted, is a similar power under s 29 of the ACC Act. I rejected that submission insofar as it applied to paragraphs 1 and 2 of the Notice at [74] above. While I doubt whether the power Mr Anderson exercised under s 29 of the ACC Act in the circumstances of this case i.e. obtaining medical records in pursuit of a Special Intelligence Operation directed to child abuse and domestic violence, can be equated with the exercise of the inquisitorial and coercive powers considered in that series of decisions i.e. obtaining accounting and other information in pursuit of taxation investigations and the like, I do not consider I need to determine that issue in this case. That is so because whether he had to or not, I consider that in the peculiar circumstances that applied here, Mr Anderson effectively provided C Inc with the opportunity to be heard as described above. He did that by issuing the original notice and then obtaining from C Inc details of its concerns in the form of the original application and the affidavits from Ms Bell and Ms Collier. Insofar as they apply to the adult patients of C Inc, he gave evidence, which I accept, that he took these concerns into account before issuing the Notice. I therefore reject this claim.
(7) Was Mr Anderson’s exercise of the power to issue the Notice so unreasonable that no reasonable person could have so exercised the power in the circumstances?
107 In paragraph 4 of its application, C Inc relies upon s 5(2)(g) of the ADJR Act and claims that:
That the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made in that he was required to satisfy himself that the issue of the Notice was reasonable in all the circumstances and he failed to do so by issuing the Notice.
(a) without regard to the merits of the particular case in that no evidence was before him to indicate that the applicant or its employees was engaged in the under reporting of Indigenous related child sexual abuse.
(b) without proper consideration of the matters deposed to in the affidavit of Stephanie Bell sworn 8 May 2008.
(c) without making enquiry of the Applicant or any other persons, which if he had done so, would have brought to his attention the public health consequences as deposed to in the affidavit of Dr Boffa of 10 June 2008.
(d) without making enquiry of the Applicant or any other persons, which if he had done so, would have brought to his attention the matters deposed to in the affidavit of Henry Mizow dated 10 July 2008, that the availability of the material sought in the Notice could readily [be] obtained by the first respondent by other means.
108 I have already rejected claims (b) and (d) under other headings above, as lacking in merit. The claims in (a) relate to paragraph 2 of the Notice and, in view, cannot therefore support an attack on paragraph 3 of the Notice. Likewise, the claims in (c) relate to paragraphs 1 and 2 and cannot support an attack on paragraph 3 of the Notice. It is self-evident that combining two unmeritorious claims under another heading does not make the combination any more meritorious. In any event, as Gleeson CJ and McHugh J observed in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611: In order to satisfy the unreasonable test there must indeed by something more than mere divergence of opinion. There must be something overwhelming. In my opinion, there is nothing overwhelming in the matters pointed to by C Inc as constituting unreasonableness on the part of Mr Anderson. This claim must therefore be rejected.
CONCLUSION
109 For these reasons, I propose to grant appropriate relief to C Inc under the relevant provisions of the Administrative Decisions (Judicial Review) Act 1977(Cth) in relation to that part of the Notice that relates to the medical records of its child patients. However, because the Notice is also directed to the medical records of adult patients of C Inc, and I do not consider there is any basis upon which to set aside that part of the Notice, I will hear the parties as to the form that my orders should take.
| I certify that the preceding one hundred and nine (109) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves. |
Associate:
Dated: 28 November 2008
| Solicitor for the Applicant: | Collier and Deane |
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| Solicitor for the Respondents: | Australian Government Solicitor |
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| Counsel for the Applicant: | Ms S Gearin instructed by Ms N Collier |
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| Counsel for the Respondents: | Ms S Maharaj QC instructed by Mr R Prince |
| Date of Hearing: | 14, 15 and 16 July 2008 |
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| Date of Judgment: | 28 November 2008 |
