Best interests test applies to ACC: Federal Court

The Federal Court has held that the Australian Crime Commission, in issuing notices, is obliged to take into account the best interests of a child as a primary consideration. The court set aside the notices, issued by the Commission under the Northern Territory intervention, to a medical clinic known as NTD8, which had inserted a number of contraceptive implants in girls aged 13 to 15.

In doing so, the court in the recent Federal Court case of NTD8 v ACC (No2) followed the High Court decision in Teoh’s case. In the words of Justice Reeves:

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

His Honour held:

42 In my view, these decisions require that an administrative
decision-maker who is required to take into account the best interests of
children as a primary consideration should:
(a) identify what the best
interests of the children concerned are and what they call for in the
circumstances;
(b) identify any other considerations that are worthy of equal
importance; and
(c) determine which consideration is to be given the greater
weight in coming to the final decision;

The clinic, not surprisingly, was concerned that the Crime Commission would trawl through the records and then drag the girls in for questioning.

Reeves J noted that there were frank admissions by a Mr Anderson, who had issued the notice, that he had not taken the best interests of the children into account as a primary consideration, and that:

51 In summary, a fair reading of Mr Anderson’s affidavit and its annexures
shows that he:
• did not make any assessment of what the best interests of
these eight young Aboriginal children were, or what they called for in the
circumstances;
• in particular, did not make any real assessment of the views
expressed by Dr Bell and Nurse Gooley as to where the best interests of these
eight young Aboriginal children may lie;
• did not treat the best interests
of these eight young Aboriginal children as a primary consideration and,
therefore, did not weigh that primary consideration against other considerations
of equal, but not paramount, importance in coming to his final decision; and
• instead, simply relied upon other considerations as the primary
considerations in coming to his decision.