Crikey

A full bench of the Federal Court today ruled that the Australian Crime Commission (ACC) must take the interests of Indigenous children into account when investigating child abuse in Indigenous communities in the Northern Territory.

Under the Northern Territory Intervention the ACC was given special powers — and a considerable budget — to chase down former Indigenous Affairs minister Malcolm Brough’s claims of “paedophile rings” on Aboriginal communities.

This has extended to draconian powers to seize documents and question people in pursuit of their investigations.

Two Aboriginal health services in the Territory — known only as NTD8 and NTD9 — refused to hand over documents, and took federal court action against the ACC, claiming that such breaches of privacy in medical records would dissuade Aboriginal minors from attending clinics in regions where remote clinics are the only choice available. A number of other clinics, including NT Government clinics, handed over material to the ACC.

Judge John Reeves initially ruled last October in favour of NTD8, ruling that the ACC had not taken the children’s interests as a “primary consideration” in their attempts to seize medical files of eight Aboriginal girls, patients of NTD8. As Crikey’s Bob Gosford reported at the time:

Reeves found for NTD8 and quashed the notice by the ACC for NTD8 to produce the medical records of its eight Aboriginal girls aged 13 to 15.

Records from the health clinic, which cannot be named to protect the privacy of its patients, show that seven of the girls had the contraceptive device Implanon inserted at the clinic last year. Doctors and staff noted on each record there was “no evidence” of sexual abuse and, therefore, no requirement for mandatory reporting.

While upholding one ground of the the appeal — thus allowing ACC access to the files — Chief Justice Black and Justices Mansfield and Bennett were critical of the ACC’s “laconic, formulaic and often unhelpful” approach to going about explaining how they took children’s interests into account.

… in our view, the clear implication of s 29(1A) is that the interests of Indigenous children is a matter required to be taken into account by the Examiner when deciding to issue the Notice. In circumstances where the concern of NTD8 that the eight female Aboriginal children and, indeed, other children might be deterred from availing themselves of the services of NTD8 was before the Examine, he was required to take that concern and the likely effect on the children into account.

The judges further said the actions of the ACC Examiner in seeking the records had been “not satisfactory”, saying the statement of facts and circumstances submitted “was uninformative”.

Crikey understands NTD8 is studying the Federal court ruling with respect to how to deal with ACC requests in the future.