The Australian Crime Commission has ruffled a lot of feathers with its heavy-handed intrusion into the NT — not least among the Territory and Federal police forces, where there is a widely-held view that the star-chamber powers of the ACC and the National Indigenous Violence and Child Abuse Intelligence Taskforce have no place in the investigation of what are regarded as ordinary police matters. Adding to the sense of alarm was the fact that the coercive powers of the ACC were not open to scrutiny.

So Justice Reeve’s decision last week in which he found in favour of a medical clinic who refused to hand over the medical records of its eight Aboriginal child patients to the ACC has major implications for the way the ACC operates within the intervention. Remote-area Northern Territory Aboriginal health service (known in the Court records as “NTD8”) submitted an application to the federal court seeking to resist the issue of a notice by the ACC to produce medical records of a number of its young Aboriginal child patients.

Justice 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.

NIVCAIT opened for business in the Territory in October 2006, though the location of both the Darwin and Alice Springs offices of NIVCAIT is a secret due to “the nature of the ACC’s work”. The then Federal Justice Minister Chris Ellison told the ABC’s Anne Barker that NIVCAIT would: “…not only crack down on the violence that we’ve seen in some communities, but also gather intelligence and assess the size of the problem…[I]t will basically give perpetrators nowhere to go…”

Barker reported that the establishment of NIVCAIT was “…in direct response to the allegations of abuse and domestic violence [allegedly] plaguing communities like Mutitjulu, at Uluru in Central Australia.”

Since the original Lateline broadcast on Mutitjulu, a Northern Territory police investigation, responding to the Lateline allegations, found no evidence whatsoever to support the claim that petrol was being traded for s-x.

As to the p-edophile ring claims, the Australian Crime Commission reported to a Senate Estimates committee a fortnight ago that despite extensive investigations in Central Australia (and throughout the nation) they have uncovered “no information to substantiate that claim”.

The ABC’s Barker reported that NIVCAIT would:

Bring together the crime fighting skills of state and federal police, the ACC, and other intelligence agencies. More than 30 staff will collect, analyse and share information from remote communities with law enforcement bodies, to maximise efforts to crack down on violence and child abuse.

Spooks operating on this scale aren’t cheap — as the ACC’s own budget papers reveal, the ACC received additional funding of $11.489m for NIVCAIT through to 2009-10.

The ACC’s CEO, Alastair Milroy, said at the time that the NIVCAIT will deal with more than violence and abuse and the ACC was: “…experienced in dealing with this sort of thing.”

Kevin Kitson, in 2006 the ACC’s Director of Intelligence and now Executive Director, Strategic Outlook and Policy, told Barker:

We don’t suppose for a moment that we can simply land into any kind of remote community and expect to get people to tell us things that they’ve chosen not to tell over a number of years. But we will look to use a number of contacts we’ve already established and that we know are out there to simply say, How is that (sic) we can best encourage people to tell us their stories?

Uh — maybe the ACC would “encourage” people by using its extraordinary star-chamber powers?

Three months later, in January 2007, Kitson stated that NIVCAIT had been working with a number of agencies “who may have information about child abuse and violence.” NIVCAIT’s main targets appeared now to have shifted from individuals to schools and health clinics, many of which in the NT are run by small aboriginal-owned health services. Kitson explained that “…violence and abuse that go unreported to police but which are known to health and education sectors, that’s the kind of data we want to sweep up with the first major phase of the task force.”

By the end of July 2007 ACC CEO Milroy reported that the 30 officers at NIVCAIT had “logged” over 150 “crimes” in Indigenous communities in the past year, a mere 20 of which had been referred to local police forces for investigation.

By early 2008 the ACC had hit “a wall of silence” and its frustration with the perceived unwillingness of some non-governmental agencies to provide information about their operations and clients boiled over and it sought to further extend its powers. As The Australian‘s Simon Kearney reported:

…investigators, while having significant success uncovering information, have been frustrated by the unwillingness of non-government organisations to provide formal disclosures.

Milroy told Kearney that the ACC needed to apply its newly-expanded coercive powers to get information on violence, child abuse, substance abuse and p-rn:

Coercive powers will provide a clear legal basis and protection for non-government organisations … and individuals to provide confidential information, as well as an environment that is more conducive to gathering personal information. The approval of coercive powers was considered essential to overcome impediments to accessing information collection relating to indigenous violence and child abuse.

Milroy’s star-chamber would travel to remote communities but would take into account the “need … to protect the identity of witnesses being questioned.” The coercive powers would not be used to target victims of abuse or violence, but would be used to “force organisations and individuals to produce documents from which further inquiries would be launched … The ACC will utilise coercive powers in a culturally sensitive manner in order to identify offenders and obtain specific intelligence…”

But as Greg Barns noted (Crikey, 6 May 2008, “Lifting the veil on the Australian Crime Commission“):

…would anyone know whether Milroy’s organisation is living up to its promise to be sensitive to vulnerable Indigenous Australians when the ACC’s processes are conducted in secret?

That answer would come soon enough. The day after Barns’ article ran in Crikey, NTD8 made application in the Federal Court in Darwin seeking to challenge a notice issued by the ACC Examiner Jeffrey Phillip Anderson, requiring that NTD8 produce the confidential medical records of a number of NTD8’s young female Aboriginal patients, all of whom are children. Following objections, a further, amended notice was issued by Anderson to NTD8 that specifically sought details of the patients, NTD8 that had treated them and details of any person identified as having s-xually assaulted those patients.

NTD8 resisted the ACC’s notice because it considered that if it were to provide the medical records of its clients — given, as all of us do to our own medical practitioners — in the expectation that they would remain confidential, it would lose the trust and confidence that it so carefully had built with its patients over the years.

The basis for NTD8’s resistance to the ACC’s notice to produce its patient’s medical records was that the ACC’s examiner had not taken the best interests of the child patients of NTD8 into account as a primary consideration when issuing the notice.

The obligation that the ACC had to take the “best interests” of NTD8’s child clients into consideration arises from the Australian Parliament’s ratification of the International Convention on the Rights of the Child. That Convention, at Article 3, requires that:

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.

Australian courts, by no lesser an authority than the High Court in Teoh’s case have since 1995 held that, unless there are contrary legislative or executive indications, there is a legitimate expectation that administrative decision-makers will, in relation to decisions concerning children, take the best interests of those children into consideration as a primary consideration.

Under cross-examination by NTD8’s counsel, NIVCAIT’s Jeffrey Anderson told the court:

COUNSEL: …did you consider that you were bound to take into account the best interests of the relevant children as a primary consideration in making your decision?

ANDERSON: It was a consideration. It wasn’t the first consideration.

COUNSEL: The first being a synonym for primary…is that correct?

ANDERSON: Yes.

COUNSEL: It would appear to follow from your answer…that you do not consider yourself bound as a matter of law at the time you made the decision to take into account the best interests of the children as a primary consideration?

ANDERSON: Not as the first consideration, no.

I can hear the groans from the ACC’s bar table from here.

Unsurprisingly, Justice Reeves found that Jeffrey Anderson had “failed” his duty under a High Court ruling to keep the children’s best interests as his primary objective.

But there may be at least one sting in the tail of this sad, sorry story of the ACC and the NITCAIV. Because the ACC sought access to the medical records of a (unknown) number of NTD8’s patients who were not children, and to whom this decision will not apply, the ACC may be accessing these records as you read this. Further, there is another, substantially similar, case, bought by another Aboriginal health service identified only as NTD9. That matter was also heard by Justice Reeves and a decision has yet to be handed down.

And the ACC may be able to get around the decision in NTD8’s matter in future by just stating that “in this matter we have taken the best interests of the children into account as a primary consideration.”

As NTD8’s case shows, they are also incompetent and, despite their rhetoric about being culturally sensitive, they are also clumsy and ignorant.

And contemptuous of their masters. One of the few means by which the ACC is held to account is that it is required to report to the Parliamentary Joint Committee on the Australian Crime Commission. On September 4 this year, the Chair of the Joint Committee, Senator Steve Hutchins, presented its report to parliament. He had this to say about the ACC’s conduct in relation to that report:

I find it particularly concerning that when the commission believes that legislative change is required to ensure that it is able to operate effectively it does not even bother to inform its parliamentary oversight committee. This behaviour shows contempt for the committee and its role and I hope the commission will act differently if such an occasion ever arises again. This committee exists for a reason and should not be circumvented.

Peter Fray

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