B and B v Minister for Immigration and Multicultural and Indigenous Affairs - [2003] FamCA 451

[2003] FamCA 451

FAMILY LAW ACT 1975

IN THE FULL COURT OF THE
FAMILY COURT OF AUSTRALIA
AT SYDNEY

Appeal No. SA82 of 2002
File No. AD3433 of 2002

IN THE MATTER OF:

(Appellant/Infants)

and

(Appellant/Intervener)

and

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

(Respondent)

REASONS FOR JUDGMENT

Coram:Nicholson CJ, Ellis and O’Ryan JJ.

Date of Hearing: 17 & 18 December 2002
Date of Judgment: 19 June 2003

Appearances:

Dr Churches with Mr Ower of counsel, instructed by Jeremy Moore & Associates, Solicitors, 10 Albyn Terrace, Strathalbyn SA 5255, appeared on behalf of the Appellant/Infants.

Mr McQuade of counsel, instructed by Boylan & Co Solicitors, 138 Florence Street, Port Pirie SA 5540, appeared on behalf of the Appellant/Intervener.

Mr Bennett QC with Mr Kennett of counsel, instructed by Australian Government Solicitor, Level 23/133 Castlereagh Street, Sydney NSW 2000, appeared on behalf of the Respondent.

B (Infants) and B (Intervener) and the Minister for Immigration & Multicultural & Indigenous Affairs
SA82 of 2002
Coram:     Nicholson CJ, Ellis and O’Ryan JJ
Date of Hearing:          17 & 18 December 2002
Date of Judgment:       19 June 2003

JURISDICTION OF FAMILY COURT OF AUSTRALIA – children – matrimonial cause –powers of Family Court in its welfare jurisdiction – applicability to ex nuptial children - welfare of child – parens patriae jurisdiction – injunction powers – constitutional law - marriage, divorce and incidental powers, external affairs power –United Nations Convention on the Rights of the Child- migration- children held in immigration detention – whether children’s detention in immigration detention is the subject of the jurisdiction of the Family Court – release of children in immigration detention

In July 2002 two boys, A and M aged 14 and 12 applied, by their mother as next friend to the Family Court for orders that the Minister for Immigration & Multicultural & Indigenous Affairs release them from a particular immigration detention centre. The grounds upon which A and M relied were, broadly speaking, because the continuing detention was harmful to their welfare. The father also intervened in the proceedings, seeking orders that the two boys and their three younger sisters reside with him; or, in the alternative, that he have regular contact with them and that certain orders be made to protect the children whilst they remain in detention.

In October 2002, the trial Judge found that the Family Court had no jurisdiction to make orders in respect of children held in immigration detention, and accordingly dismissed the application.

The appeal to the Full Court of the Family Court was initially brought on behalf of the two boys and the father as appellant intervener. Although not parties to the original application, the mother also was given leave to add A and M’s three younger sisters aged 11, 9 and 6 as appellants.

At the time of the trial, the children and their mother were detained at one particular immigration detention centre but, by the time of the hearing of the appeal, had been transferred to another. At the time of the trial, the father was living in the general community but, by the time of the hearing of the appeal, was also detained. All family members are unlawful non-citizens within the meaning of s.14 of the Migration Act 1958.

Held:

Per Nicholson CJ, Ellis and O’Ryan JJ:-

The jurisdiction of the Family Court is not limited by the State’s referral of power in relation to ex-nuptial children.

The welfare jurisdiction of the Family Court extends to all children of marriages in Australia, including children in immigration detention, where the particular orders sought arise out of, or are sufficiently connected to the marriage relationship.

The welfare jurisdiction is similar to the parens patriae jurisdiction formerly exercised by the Court of Chancery in England and also exercised by the Supreme Courts of the States and Territories.

The welfare jurisdiction derives its constitutional validity from the marriage, divorce and incidental powers contained in ss.51(xxi) and (xxii) of the Constitution which are to be broadly construed.

The Family Court, in exercising the welfare jurisdiction, may make orders for the protection of children of marriages directed at third parties, where the orders sought are sufficiently connected to the relevant constitutional heads of power.

The Family Court, in exercising the welfare jurisdiction, may make orders for the protection of children of marriages in immigration detention, where the orders sought are sufficiently connected to the relevant constitutional heads of power.

Section 196(1) of the Migration Act should not be interpreted as permitting the indefinite detention of children in circumstances where there is no real likelihood or prospect in the reasonably foreseeable future of the children being removed and thus released from detention.

SMB and JWB; Secretary, Department of Health and Community Services (Re Marion) (1992) 175 CLR 218 and P v P (1994) 181 CLR 583 applied.

Per Nicholson CJ and O’Ryan J, Ellis J dissenting:-

The trial Judge erred in finding that the Family Court of Australia lacked jurisdiction to hear the applications.

The children in this case did not appear to have any means of bringing an end to their detention and in particular appeared to lack the capacity to make a request for repatriation pursuant to s.198(1) of the Migration Act.

Subject to the findings of a trial Judge as to the children’s capacity to bring an end to the detention, their continued detention was unlawful.

If their continued detention is unlawful, the Family Court could, in the exercise of its welfare jurisdiction, order the Minister to release the children.

Minister for Immigration and Multicultural Affairs v VFAD [2002] FCAFC 390 and Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri (2003) 197 ALR 241 applied.

Per Nicholson CJ and O’Ryan J:-

Should the finding that the Family Court has the power to order the release of the children be incorrect, the Court may still give directions about the nature and type of detention in which children are held.

VLAH v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1554 (13 December 2002) discussed.

If the marriage, divorce and incidental powers contained in the Constitution were insufficient to justify the assumption of jurisdiction by the Court to make orders pursuant to s.67ZC of the Family Law Act 1975, then resort could be had to the external affairs power by reason of the ratification by Australia of the United Nations Convention of the Rights of the Child (UNCROC). UNCROC was incorporated into domestic law by the Family Law Reform Act 1995. Consequently and insofar as it did not otherwise do so, s.67ZC applies to all children in Australia, including ex-nuptial children.

Per Ellis J:-

In exercising its welfare jurisdiction, the Family Court has power to make orders for the welfare of children of a marriage, insofar as the subject matter(s) of the orders sought are sufficiently connected with the relevant heads of constitutional power. An order releasing children from a particular form of immigration detention is not so connected. However, the provision of adequate, proper and prompt medical treatment for the children and of ensuring they are not exposed to violence and trauma are matters directly related to their protection and welfare. Such matters arise out of and are aspects of the relevant marriage relationship.

The Parliament of the Commonwealth did not, in enacting the Reform Act, implement UNCROC or the relevant parts thereof, and thus the provisions of Part VII of the Act, in particular s.67ZC, are not laws with respect to external affairs under s.51(xxix) of the Constitution. Accordingly, the Court does not have the power to make the orders sought by reference to s.51(xxix).

Appeal allowed and remitted for rehearing.

Reportable.

INTRODUCTION

NICHOLSON CJ AND O’RYAN J: These are appeals brought against the orders of Dawe J made on 9 October 2002. They are brought by the mother of two boys, A and M aged 14 and 12 as their next friend. By leave she was permitted to add their three sisters who are aged 11, 9 and 6 who were joined nunc pro tunc as additional appellants. The father of the children, her husband, intervened in the proceedings and is also an appellant.

The proceedings arise out of the continued detention of these children. They were at the time of the hearing of the appeal detained in Woomera Immigration Reception and Processing Centre, an immigration detention centre at Woomera in a remote part of South Australia. By letter of the Australian Government Solicitor dated 28 April 2003, we have been informed that the mother and children were transferred to Baxter Immigration Reception and Processing Centre, another immigration detention centre. The father is also now detained at Baxter.

The central issue that arises in the present appeal is whether the Court, in the exercise of its welfare jurisdiction and injunction powers, has the power to make orders to release these children from detention. If it does not have the power to order the release of the children, it then becomes necessary to consider what other type of orders, if any, the Court has jurisdiction to make, for the protection of the children.

The issue arises for the first time in this Court.

THE TRIAL PROCEEDINGS

The applications before Dawe J were made under the Family Law Act 1975 (Cth). The named respondent to each application was the Minister for Immigration & Multicultural & Indigenous Affairs (“the Minister”).

The father, mother and children are not citizens of Australia and do not hold visas under the Migration Act 1958 (Cth). According to the Form 41B Notice of a Constitutional Matter filed by the Minister on 10 December 2002:

“6.On 21 February 2001 the Appellants [A and M] their mother and sisters lodged an application for protection visas. On 26 July 2001 the Refugee Review Tribunal (RRT) affirmed a decision by a delegate of the Respondent to refuse that application. On 2 April 2002 the Respondent decided not to exercise his power under s.417 of the Migration Act to substitute a more favourable decision.”

Both at the time of the proceedings before Dawe J and at the time of the hearing of the appeal, the mother and children were detained at Woomera.

It was common ground that at the time of the proceedings before Dawe J, the father held a temporary protection visa (issued 3 August 2000) and was not detained. However at the time of the hearing of the appeal, the father’s visa had been cancelled and he was detained at Villawood Immigration Reception and Processing Centre in New South Wales.

As we have mentioned, as at 28 April 2003, the family were all detained at Baxter Immigration Reception and Processing Centre.

The common aim of the two applications was to bring about the release of the children from detention at Woomera. Her Honour found against both the applicant children and the father. She concluded [166] that the applications were “misconceived and fatally flawed” and that “[t]he Family Court does not have any jurisdiction to make any of the orders sought against the Minister.”

Both applications were founded on the premise that the Family Court of Australia has the jurisdiction and the powers that are capable of achieving that result.

ISSUES

The core question in this appeal is whether Dawe J was correct as a matter of law to dismiss the applications of the children and of the father. In order to determine that question we must consider for ourselves a number of difficult issues. The issues as we see them are:
A.Whether the welfare jurisdiction contained in s.67ZC of the Family Law Act applies to children in South Australia.
B.Whether the constitutional basis provided by the marriage and divorce and incidental powers contained in the Constitution is sufficient to enable the Family Court to make orders against third parties for the protection of the children.
C Whether the external affairs power contained in the Constitution forms an additional source of Commonwealth power that would enable the Court to make orders against third parties for the protection of children.
DWhether, the welfare jurisdiction of the Family Court is to be equated with the parens patriae jurisdiction, and in particular, whether it extends to the making of orders against third parties for the protection of children.
EWhether having regard to the provisions of the Migration Act, the Family Court of Australia has the power to
(a)order the Minister to release the children or
(b)to make orders supervising the Minister’s detention of the children.
We should make it clear at the outset that these appeals do not call upon or authorise the Court to adjudicate upon the Government’s policy in respect of immigration detention generally. We appreciate that this is a matter of controversy but whatever its significance, the present appeal is centred upon legal issues about the powers of the Family Court of Australia in respect of the five subject children.

The appeal does not raise any disputed issues of fact as the factual background to the applications was not considered by Dawe J. Accordingly, as we pointed out in the course of hearing the appeal, if we find that Dawe J fell into error and allow the appeal, it will be necessary to remit the applications for determination by a single judge of the Court.

HISTORY OF THE PROCEEDINGS

On 31 July 2002, A and M (the two older children), by their next friend filed proceedings in the Family Court of Australia against the Minister. At the hearing before Dawe J they sought the following specific orders:

“1.An injunction pursuant to section 68B of the Family Law Act that the respondent, whether by himself, his servants or his agents, be required to release the applicants from detention at the Woomera Immigration Reception Processing Centre.

2.An injunction pursuant to section 68B of the Family Law Act that the respondent, whether by himself, his servants or his agents, be restrained from detaining the applicants pursuant to section 189 of the Migration Act.

3.Alternatively, an order pursuant to section 67ZC of the Family Law Act that the respondent, whether by himself, his servants or his agents, be required to release the applicants from detention at the Woomera Immigration Reception Processing Centre.

4.An order pursuant to section 67ZC of the Family Law Act that the respondent, whether by himself, his servants or his agents, be restrained from detaining the applicants pursuant to section 189 of the Migration Act.

5.A declaration pursuant to section 68B and/or section 67ZC of the Family Law Act that the detention of the applicants pursuant to section 189 of the Migration Act is contrary to the welfare of the applicants.”

On 12 August 2002, Burr J granted the father leave to intervene in the proceedings.

On 6 September 2002, Dawe J gave directions in the matter including directions that the father file his application by 13 September 2002. On that day, her Honour also delivered two ex tempore judgments and made orders on two matters.
·Her Honour dismissed an application by the Minister to state a case in relation to the legal issues associated with the matter.
·The other application was brought by a local newspaper seeking orders pursuant to s.121(9)(d) of the Family Law Act that would permit publication of accounts of the proceedings that may contain material that may identify the parties and persons associated with the proceedings. Her Honour dismissed that application save for permitting the identification of the Minister as a party to the proceedings.

On 10 September 2002 the Minister filed a Form 41 B Notice of a Constitutional Matter in the following terms:

“1.Whether the provisions of Part VII of the Family Law Act 1975 (Cth) are to be construed as not conferring jurisdiction on the Court to determine the present case, or as not giving the Court power to make the orders sought, by reason of:

(a)the limited nature of the power in s.51(xxi) and (xxii) of the Constitution and of relevant references of power under s. 51 (xxxvii) of the Constitution; and/or

(b) the limited nature of the judicial power of the Commonwealth which the Court exercises.

2.Whether, contrary to 1(a) above, the provisions of Part VII are laws with respect to external affairs under s. 51(xxix) of the Constitution and therefore not limited in their construction by the subject matters of s. 51(xxi) and (xxii) and the references of power.”

On 16 September 2002 the Minister filed a Notice objecting to jurisdiction.

On 19 September 2002 the father filed his application out of time. The orders sought in the application were as follows:

“1.That the Applicants A and M and their three sisters; N (aged 11 years, born in 1991), S (aged 9 years, born in 1993) and A (aged 5 years, born in 1997) do reside with the Applicant Intervener.

2. In the alternative:
(a)That whilst the five said children, or any one or more of them remain in immigration detention, the Respondent do give and the Applicant Intervener have contact to each of the five said children on such terms and conditions and at such places as this Honourable Court deems just and expedient.

(b)That whilst the five said children, or any one or more of them remain in immigration detention, the Respondent do give and the Applicant Intervener do have telephone contact with each of the five said children on no less than two occasions each week.

(c) That whilst the five children, or any one or more of them remain in immigration detention, the Respondent provide each of the five said children with adequate and proper medical treatment and attend promptly to the emotional and medical needs of each of them.

(d)That whilst the five children, or any one or more of them remain in immigration detention, the Respondent accommodate each of the said five children, in such community housing or other accommodation and at such place and upon such terms and conditions as this Honourable Court may deem just and expedient.

(e)That whilst the five said children, or any one or more of them remain in immigration detention, the Respondent, and each of them, his servants, employees, agents or contractors be restrained and an injunction granted restraining them from assaulting the five said children, or any one or more of them.

(f)That whilst the five said children, or any one or more of them remain in immigration detention, the Respondent be restrained and an injunction is hereby granted restraining him from placing the five said children, or any one of them, in the Woomera Detention Centre, or such other environment likely to induce trauma, developmental delay and suicidal behaviours in the five said children, or to any one or more of them.”

On 23 September 2002 Dawe J heard the application of the children and the application of the father contained in paragraph 2(f) above. She otherwise adjourned the remainder of the father’s case to 18 November 2002. Her Honour explained at [4-5] the reason for taking this approach in the following way:

“4.The procedural orders made on the 6^th September were designed to ensure that no-one was taken by surprise by the orders sought or the matters to be argued before the court on the 23^rd of September. The father’s application was not filed until the 19^th of September and the summary of argument on his behalf not filed until a facsimile was received in the afternoon of Friday the 20^th of September.

5.I agreed to hear counsel for the father notwithstanding that the application was not filed within the time ordered. At the hearing before me on the 23^rd September counsel for the father suggested that counsel for the Minister should have been in a position to respond to different issues concerning jurisdiction and power raised by part of the father’s application and summary of argument. The Solicitor-General submitted that insufficient time had passed for a proper response to those matters. On the 23^rd September I declined to hear all arguments concerning the father’s application. Those matters which were common to the applications of the children A and M and the father were heard by me on the 23^rd of September. The matters referred to in Paragraph 11 of the summary of argument of counsel for the father, which were not related to the arguments in common with other matters, were adjourned to the 18^th of November before me with liberty to apply about the suitability of the date.”

On 9 October 2002 Dawe J delivered judgment finding that the Court does not have the jurisdiction to make any of the orders sought against the Minister. Her Honour dismissed the applications of the children and the father and vacated the further hearing date set aside for the hearing of the balance of the father’s applications.

On 6 November 2002 a Notice of Appeal was filed on behalf of the children A and M.

On 29 November 2002 there was a directions hearing before the Chief Justice via videolink. His Honour ordered that the appeal be listed for hearing by the Full Court in Sydney on 17 December 2002. Costs were reserved.

On 4 December 2002 the father filed:
·An Amended Notice of Appeal; and
·An application by the father for extension of time to file a Notice of Appeal, expedition of the appeal and consolidation with the appeal of the children.
There was also filed an application by the children to join the three younger sisters (by their next friend) to the proceedings nunc pro tunc.

On 5 December 2002, Dawe J heard argument concerning an application by the Minister for costs against both the applicants through their next friend, the mother, and the intervener father. She delivered judgment the following day refusing the Minister’s application. Her Honour also refused an application by the father for the costs of the application for costs. The costs orders are not under appeal.

On 9 December 2002 there was a further Directions Hearing before the Chief Justice by video-link. His Honour granted the applications then sought by the father and the children. Leave was granted to the father to amend the orders sought to include, in the alternative, that if the appeal is successful, that the matter be remitted for hearing before a single judge. The original orders sought had asked the Full Court to determine the matter.

For the sake of completeness we would also note that the nature of the issues suggested that the Court might be assisted by the Human Rights and Equal Opportunity Commission. We caused enquiries to be made of the Commission and were advised that it did not seek to be heard on the appeals.

THE REASONS OF THE TRIAL JUDGE

Dawe J’s judgment was tightly structured and economically worded. It very clearly set out her reasoning on the complex legal issues in this case.

After setting out the statutory provisions which she identified as necessary for consideration, Dawe J dealt with each of four issues she identified as follows seriatim.

A.The interaction between the Family Law Act and the Migration Act.
B.The extent of the application of the provisions of the Family Law Act.
C.The extent of the welfare jurisdiction of the Family Court.
D.The relevance of the external affairs power to the statutory grant of jurisdiction to the Family Court of Australia.

Her Honour’s determination of the first two of those issues against the applicants was sufficient to dispose of the applications. However she also proceeded to express her conclusions on the remaining two issues in case she was wrong on the first two issues. Given the technical nature of the issues, it will be necessary to refer extensively to her Honour’s reasoning at first instance to explain the arguments that were advanced on appeal.

Relevant Legislation

All of the statutory provisions considered by her Honour were the subject of argument in this appeal.
Her Honour said:
“16.By the Migration Act the Commonwealth Parliament has made provisions relating to the entry into, and presence in, Australia of aliens.

17.The Family Court of Australia was created by statute. It has the jurisdiction and powers given to it by the Commonwealth Parliament primarily in the Family Law Act.

18.The Commonwealth Parliament has power to make laws within the bounds set out in the Constitution.

19.The Parliament of South Australia referred to the Commonwealth certain matters by the Commonwealth Powers (Family Law) Act 1986 (SA). This expanded the powers of the Commonwealth Parliament because of the provisions of S 51(xxxvii) of the Constitution.”

Her Honour then referred to what she considered to be the most relevant sections of the Migration Act, these being ss.5, 189 and 196 of the Migration Act.

Her Honour then set out ss.67ZC, 68B, 31(1)(d), 60B, 61B, 69H(1), 69M and 69E to 69ZH of the Family Law Act.

Her Honour then referred to the most relevant portions of the Constitution as follows:
“22. The Constitution provides:
In s 51
The Parliament shall, subject to this Constitution, have power to make laws for the peace, order and good government of the Commonwealth with respect to:
(xxi) marriage;
(xxii)divorce and matrimonial causes; and in relation thereto, parental rights,
(xxix) external affairs;
(xxxvii)matters referred to the Parliament of the Commonwealth by the Parliament or Parliaments of any State or States, but so that law shall extend only to States by whose Parliaments the matter is referred, or which afterwards adopts the law;
(xxxix)matters incidental to the execution of any power vested by this Constitution in the Parliament or in either House thereof, or in the Government of the Commonwealth, or in the Federal Judicature, or in any department or officer of the Commonwealth.”
Her Honour noted that by s.3(1)(b) of the Commonwealth Powers (Family Law) Act 1986 (SA), South Australia referred matters to the legislative power of the Commonwealth which included “the custody and guardianship of, and access to, children”.

A. The interaction between the Migration Act and the Family Law Act.

Her Honour assumed that the Family Court of Australia has a wide jurisdiction concerning the welfare of children generally (s 67ZC Family Law Act) and can grant injunctions in a wide variety of circumstances (ss 68B and 67ZC Family Law Act).

Counsel for the children and counsel for the father asserted that there is a conflict and ambiguity created by the existence of the two pieces of Commonwealth legislation (the Family Law Act 1975 and the Migration Act 1958) and that the timing of relevant enactments was significant.

It was agreed that ss.68B and 67ZC were inserted in the Family Law Act by the Family Law Reform Act 1995 whilst ss.189 and 196 of the Migration Act were inserted in 1992. However, the applicants relied upon the fact that the later Act is the Family Law Act as amended by the 1995 Reform Act to justify a submission that the mandatory detention provisions of the earlier Migration Act must be read as subject to the welfare jurisdiction of the Family Court. Dawe J said at [25]:
“This submission overlooks the fact that provisions containing reference to a welfare jurisdiction existed after the 1983 amendments to the Family Law Act.”

Dawe J applied the approach to statutory construction whereby a later Act overrides an earlier Act subject to the exception that a general provision does not impliedly repeal a specific provision. She noted at [26]:

“The applicants’ submission recognises the validity of the exception but attempts to designate the Family Law Act as the special enactment.”

Her Honour held:

“27. … Without hesitation I reject the submission …that the Migration Act is the general statute and the Family Law Act the specific or special.

28.The Migration Act is a specific statute dealing with a defined limited group of people in particular circumstances. The Family Law Act (and especially Part VII,) is a general statute dealing with many matters which concern the parenting of children. (see the objects of Part VII as set out in s 60B).”

In reaching this opinion, her Honour relied upon the decisions of Bray CJ in McLean v Kowald (1974) 9 SASR 384 at 387-8; Gaudron J in Saraswati v R (1991) 172 CLR 1 at 17 and McHugh J at 24; Brennan, Deane and Dawson JJ in Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 38.

Dawe J next rejected the proposition that “The welfare jurisdiction as an aspect of judicial power is untrammelled by executive decisions” on the basis that ss.189 and 196 of the Migration Act are not “executive decisions”. She said at [33]: “Without doubt they are part of the law of the Commonwealth enacted by Parliament and held to be valid.”

In support of this proposition, her Honour cited NAMU of 2002 v Secretary, Department of Immigration, Indigenous & Multicultural Affairs (2002) FCA 907 (Federal Court) per Beaumont ACJ at par 15.

She next drew attention to the stringent wording of s.196(3)of the Migration Act:

“35.The Migration Act provides for the detention of unlawful non-citizens. S196(3) uses the words “to avoid doubt”. It then makes it clear that the provisions prevent release “even by a court” except in the situations provided. This is very clear and specific. It is not ambiguous.

36.The provisions of the Migration Act are specific and unambiguous about the requirement of detention and the removal of any court’s jurisdiction to bring an end to the detention of unlawful non-citizens except in specific circumstances.”

Her Honour then said at [38] that she agreed with the submissions on behalf of the Minister that:

“…the existence of limits upon the powers of the Minister (such as the limits upon s 198 of the Migration Act discussed in the recent decisions of the Federal Court in Al Masri v Minister for Immigration & Multicultural & Indigenous Affairs (2002) FCA 1009) does not assist in determining whether the Family Law Act prevails over the Migration Act.”

She also found at [39] that Parliament has not declared an intention to affect the Migration Act by anything in the Family Law Act nor at [43] was there any suggestion of it impliedly having done so. In support of this view, her Honour cited Northern Territory of Australia v GPAO (1999) 196 CLR 553 (“GPAO”) Gleeson CJ and Gummow J (with whom Hayne J agreed) at 602 and McHugh and Callinan JJ at 628.

Her Honour concluded at [48]:
“[t]he provisions relating to welfare of children in the Family Law Act fall readily into the category of a statutory power of general application which should be read subject to the specific unambiguous terms of the Migration Act” and [49] “the application of the children A and M, so far as it seeks orders releasing them from detention or injunctions restraining the Minister from placing them in detention, be dismissed for want of jurisdiction.”

B. Extent of the jurisdiction of the Family Court of Australia

Her Honour approached the issue at [50] on the basis that the declaration sought by the children “would be a hollow finding if the Court cannot make any orders based on the finding. Such a declaration would serve no proper purpose.” Her Honour distinguished declarations as to paternity and validity of marriage as serving “obvious legal purposes” and “supported by specific provisions in the Family Law Act.” She cited in support Thorpe v Commonwealth of Australia (No 3) (1997) 144 ALR 677 per Kirby J.

Her Honour held at [51] that “The Family Court cannot make the declaratory order sought by the applicants.”

Her Honour then considered arguments that:
·some of the orders were seeking release from detention at Woomera but not release from other forms of immigration detention permitted by the Migration Act at [53].
·the father sought orders against the Minister that the children reside with him or that he have contact with them. He sought these orders not against the mother but against the Minister to be orders binding on the Minister. Of the orders sought by the father for contact even if the children were in detention, it appears that her Honour accepted at [53] “[t]hese orders sought would not necessarily be in direct conflict with the specific provisions of the Migration Act, in particular s196(3).”
·the court “has power to investigate and scrutinise the condition in which these children have been placed, and ought to exercise it” [54].

Her Honour considered at [55] it was necessary to determine “if the Family Law Act does give the Family Court such wide powers or a welfare jurisdiction similar to parens patriae jurisdiction to make orders concerning the welfare of children in South Australia.”

Looking to the original jurisdiction of the court, Dawe J found at [58] the only relevant provision to be s.31(1)(d) – “matters (other than matters referred to in any of the preceding paragraphs) with respect to which proceedings may be instituted in the Family Court under this Act or any other Act” and at [59], Part VII of the Family Law Act.

Her Honour said at [60] that “An obvious clue to the purpose of Part VII is s 60B(1)” and that [61] “The emphasis is upon parenting and the responsibilities of parents.” Her Honour said at [62] that “S69H(1) confers jurisdiction on the Family Court “in matters arising under this Part” and [63] “S 67ZC(1) confers jurisdiction to make orders relating to the welfare of children “in addition to the jurisdiction that a court has under this Part.”” She took this to mean “in addition to” “the jurisdiction that a court has to make orders such as those for residence, contact and specific issues set out in the earlier provisions.”

Dawe J then considered at [64] the application of s.69ZE which “extends Part VII (of which s 68B and 67ZC form part) to South Australia” noting that “such extension is subject to the rest of that section.” and at [65] dependent upon the matters that have been referred by the Parliament of South Australia. Her Honour found:

“Welfare” is not a matter included in the referral of powers by the S.A. statute. This means that the jurisdiction given to the Family Court under s 69H(1) and by s 69ZE (setting aside for the moment s 69ZH) does not include (for South Australia) any reference to the “welfare” of children.”

Relying upon the majority judgment in Secretary, Department of Health and Community Services and J.W.B and S.M.B. (1991-1992) 175 CLR 218 (Marion’s case) at 255 Dawe J found at [66] that prior to the enactment of s.67ZC the welfare jurisdiction did not exist in respect of South Australia.

Her Honour proceeded at [70] on the basis that “[t]he restrictions contained in s 69ZE(4) mean that that section cannot extend a jurisdiction relating to welfare of children to South Australia” and that [71]:

“[t]herefore the extent of the welfare jurisdiction of the Family Court must be ascertained from the provisions of s 69ZH. S69ZH is the saving clause which applies certain parts of Part VII by providing that Part VII “also has effect” for the particular matters referred to in that section.”

After identifying at [72] that ss.67ZC and 68B are within the areas identified by s.69ZH, she said at [73] “this means that the Family Law Act applies as if s 67ZC read “…the court also has jurisdiction to make orders relating to the welfare of children of a marriage”.” Her Honour found at [74] that such orders contained an important limitation, saying:

“S69ZH(3) goes much further. It says that the provisions of s 69ZH(2) only have effect “so far as they make provision with respect to the parental responsibility of the parties to the marriage for a child of the marriage…””

Her Honour then appears to have found at [75] that the expression “parental responsibility” used in s.69ZH(3) is defined in s.61B and that [76] “The jurisdiction conferred by s 69ZH is one which only has effect if the provisions are restricted to parental responsibility of the parties to the marriage.”

Dawe J distinguished Marion’s case (supra), P v P (1994) 181 CLR 583, Smith; St. James; Smith v Wickstein (1996) FLC 92-714 and GPAO (supra).

Her Honour at [84] rejected the submission of counsel for the applicants “that Part VII operates regardless of the sections in subdivision F but “if needs be” it operates as well through subdivision F.” She said at [84]:

“I cannot accept this interpretation of s 69ZE and s 69ZH. The heading for subdivision F does refer to “additional operation of Part” (as submitted by counsel) but this is preceded by the words “Extension” and “application.””

Her Honour found at [87] that “Part VII (including s 67ZC and 68B) does not apply to South Australia except as provided in subdivision F.” She said at [89] that “[t]he arguments about the extension of constitutional legislative power using the external affairs power are irrelevant”.

Her Honour then referred at [90] to Callinan J. in AMS v AIF (1999) 199 CLR 160 at p 250 and stated at [91] “in the case before me there is no ambiguity so there is no need to resort to any treaty as an aid to construction.”

On the basis of the above reasoning her Honour concluded:

“92.The provisions of s 69ZE and s 69ZH are crucial in determining the extent of the jurisdiction of the Family Court. The welfare provisions of Part VII (including ss 67ZC and 68B) do not apply in South Australia except to make such orders in respect to the parental responsibility of the parties to a marriage for children of a marriage.

93.The children in these proceedings are alleged to be children of a marriage.

94.The application of the father for orders that the children reside with him or have contact with him comes within the jurisdiction of the Family Court to determine only in so far as it does not bind the Minister or his officers. The Family Court could make orders relating to parental responsibility of the husband and the wife as parties to a marriage within the confines of s 69ZH. If the Migration Act did not apply to the children this court would have jurisdiction to determine with whom they are to reside and with whom they have contact within the usual provisions of the Family Law Act.

95.However, the children A and M and the father do not seek orders about parental responsibility. They seek orders which bind the Minister who is the respondent. Using the words “residence”, “contact” or “injunction” cannot magically bring the proceedings against the Minister within this court’s jurisdiction or change the fact that the orders are sought against the Minister

96.The father also seeks orders including injunctions directing the Minister to provide medical treatment, house the children in a particular way and restraining the Minister and his officers from assaulting the children

97.The Family Court must obtain jurisdiction to make such orders from the sections discussed above.

98.However, the proceedings instituted by the children A and M and the father against the Minister cannot be described as, or categorised as, being “in respect to the parental responsibility of the parties to a marriage for a child of a marriage”. The orders sought against the Minister are all orders which seek to direct the Minister and his officers in the manner they deal with the children.

99.The Family Court of Australia in South Australia does not have jurisdiction to make the orders sought to bind the Minister because of the provisions of s 69ZE and s 69ZH.” (emphasis in the original)

C. The extent of the welfare jurisdiction

Dawe J next considered the possibility her previous conclusions were wrong and whether the existing provisions such as ss.67ZC and 68B enabled the orders sought by the applicants and the father against the Minister.

Looking first to the parens patriae jurisdiction, her Honour considered a number of English cases dealing with the limitation upon the use of the wardship jurisdiction in matters governed by statute: In re B (Infants) 1962 1Ch. 201 (C.A.); In re Arif, In re Singh 1968 1 Ch. 643 per Lord Denning at 662; Re X (a minor) (1975) 1 All E R Fam Div 697 at 706 per Sir John Pennycuick. Her Honour rejected at [107] the submission for the father that the English cases could be distinguished because the parens patriae jurisdiction in England was one founded in common law which could therefore be overridden by statute (in contrast to the jurisdiction of the Family Court which is founded in statute).

She said at [108] that s.67ZC does not grant a greater jurisdiction than parens patriae and that [109]:

“…neither the parens patriae jurisdiction nor s 67ZC give power to the Family Court “to make any order to avert a risk to a child’s welfare”. The jurisdiction is not unfettered, unlimited or unrestricted. It can be overridden by statute.”

In support of this view, her Honour cited: In re Arif, In re Singh (supra) Russell L.J. at 662; Re L.S.H.; Ex Parte R.T.F. and another (1987) 164 CLR.91 per Dawson J at 120; Abebe and The Commonwealth of Australia (1999) 197 CLR 510; Marion’s case (supra) P v P (supra); GPAO (supra) at 608 per Gaudron J.

At [116] her Honour did not find assistance in the applicants’ reliance upon the decision of the majority of the Full Court of the Family Court in Re Z (1996) FLC 92-694 which decision was reversed by the High Court under the name GPAO (supra) or the applicants’ reliance on the remarks of Kirby J. in GPAO who dissented from the majority view.

Dawe J then considered: AMS and AIF (supra); L and T (1999) FLC 92-875 and Molisi v Minister for Immigration & Multicultural Affairs (2001) 108 FCR 516 per Drummond J at [17] and [19].

Her Honour found at [125-131]:

“125.The Family Court exercises its jurisdiction concerning the welfare of children in the context of the general law. The welfare jurisdiction does not extend to overriding other laws even if obedience to that law might be a risk to the child’s welfare. See Gaudron J. in GPAO (supra) at page 608.

126.There is no substance to the argument presented on behalf of the applicants that the Family Court’s welfare jurisdiction is unfettered if it means unfettered by any circumstance including other laws.

127.Although the jurisdiction is wide it is a jurisdiction which exists in the context of the Family Law Act as a whole.

128.Section 69H(4) gives the same jurisdiction under Part VII to the Federal Magistrates Court (except for proceedings under s 60G which relates to adoption proceedings). S 69J also gives such jurisdiction to state courts of summary jurisdiction with certain conditions irrelevant to this matter.

129.The welfare jurisdiction granted by the Family Law Act does not authorise the Family Court (or a State magistrates court or the Federal Magistrates Service exercising family law jurisdiction) to make any orders relating to the welfare of children even if it might be in the best interests of that child for those orders to be made. The welfare jurisdiction to be exercised must be exercised within the usual field of family law.

130.The welfare jurisdiction does not extend to a power to override the exercise of any statutory power merely because that power may impact upon the interests of children.

131.There is nothing in the Family Law Act or implied by its provisions which can give control over the Minister’s behaviour or that of his officers to the Family Court even if the behaviour which it is sought to control were found to be contrary to the best interests of a child.”

Her Honour concluded this portion of her judgment saying at [132]:

“Even if the welfare jurisdiction granted by the Family Law Act is not restricted by the Migration Act or ss 69ZE and 69ZH (as I assert it is) that welfare jurisdiction is not completely unfettered nor wide enough to make orders binding on the Minister.”

D. The relevance of the external affairs power to the statutory grant of jurisdiction to the Family Court of Australia

In the final section of her judgment, Dawe J addressed at [134] the following issue:
“If all the above are incorrect (and the Family Law Act does grant an unfettered jurisdiction in relation to the welfare of children to make orders which bind the Minister) a final problem is the constitutional basis of the power to legislate for such a jurisdiction.”

Her Honour recorded at [138] that “[t]he applicants and the father maintain that the existence of this power to make laws with respect to external affairs, combined with the coming into force of the Convention on the Rights of the Child (UNCROC) in 1991 provides the Family Court with wide powers to make orders relating to the welfare of children.” She said at [139] there were many errors in such reasoning.

She said at [140] that there is nothing in the Family Law Act to suggest that Parliament had granted jurisdiction using the external affairs power.

Contrary to the submission of the applicants at [141], her Honour did not accept at [142] that the existence of the Convention alters the character and effect of the individual sections of the legislation itself. Her Honour referred to Industrial Relations Act Case (1995-1996) 187 CLR 416 per Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ at pp 486 to 487 as support for the proposition that the domestic law must resemble the international treaty with sufficient specificity to be a law with respect to external affairs and that “aspirational” treaties do not meet this standard.

Her Honour also referred to the terminology used in B and B; Family Law Reform Act 1995 (1997) 21 Fam LR 676 at 683 where the Full Court discussed the Second Reading Speech and Explanatory Memorandum to what became the 1995 Act. Her Honour considered at [146] that “[t]he Reform Act may have been influenced by some of the sentiments in the Convention but this is far from indicating that the Family Law Act implements the Convention.”

Dawe J observed at [147] that in AMS v AIF (supra) the wife relied upon the International Covenant on Civil and Political Rights and the Convention on the Elimination of All Forms of Discrimination against Women and that Gleeson CJ, McHugh and Gummow JJ said at [180] that the instrument was aspirational and that Kirby J at [218] did not find international instruments of assistance in that case.

Her Honour said at [149] that “[m]uch of the UNCROC is aspirational.”

Dawe J appears to have applied at [151] the following test:

“For the provisions granting jurisdiction to the Family Court “to be a law with respect to” “external affairs,” the Family Law Act or relevant parts of it “must be reasonably capable of being considered appropriate and adapted to implementing” the UNCROC or some other treaty.”

She would appear to have found at [152] this test was not met because:

“A form of welfare jurisdiction existed in the Family Law Act after the amendments in 1983. The restructuring of this welfare jurisdiction by placing it in a separate section was not based upon anything in the Convention.”

She held at [154] that “[t]he Convention has not expanded or altered the parameters of the welfare jurisdiction”. She further held at [155] that “[t]he aspirational provisions of the Convention cannot possibly repeal the specific provisions of s 69ZE and s 69ZH.”

Her Honour concluded at [156-7] that “[n]othing in the Family Law Act suggests or supports a conclusion that the Act implements any part of the Convention. …The Reform Act was merely influenced by the Convention”. She said at [158]:

“The Family Law Act does not contain any provision which can be interpreted as using the Convention to apply the welfare provisions to “all aspects relating to children” without limit (as claimed by the applicants).”

THE APPEALS

The Notice of Appeal filed on behalf of the children on 6 November 2002 set out the following grounds:

“The learned Judge at first instance erred in law in finding that:
1.The provisions of sections 67ZC and 68B of the Family Law Act 1975 (Cth) (“the welfare jurisdiction provisions”) did not have constitutional validity by reference to the external affairs power and the Convention on the Rights of the Child, ratified by Australia, with the inferred consequence that the welfare jurisdiction provisions can only apply in South Australia for the purpose of making orders in respect to the parental responsibility of the parties to a marriage for children of a marriage, so that consequentially this Court does not have jurisdiction in South Australia to make orders binding the respondent.
2.The provisions of section 69ZE and 69ZH of the Family Law Act 1975 (Cth) (“the extension and addition provisions”) operate so that the welfare jurisdiction provisions can only apply in South Australia for the purpose of making orders in respect to the parental responsibility of the parties to a marriage for children of a marriage, so that consequently this Court does not have jurisdiction in South Australia to make orders binding the respondent.

3.The welfare jurisdiction provisions are “not wide enough to make orders binding the” respondent.

4.The welfare jurisdiction provisions “must be exercised within the usual field of family law”, from which it is inferred that the learned judge at first instance intended that the welfare jurisdiction provisions could only have validity when exercised in the context of orders in respect to the parental responsibility of the parties to a marriage for children of a marriage, so that consequently this Court does not have jurisdiction in South Australia to make orders binding the respondent.

5.The exercise of the welfare jurisdiction provisions as sought by the appellants was to be characterised as an issue of (1) over-riding the powers under Migration Act 1958 (Cth) vested in the respondent or (2) giving control over the respondent’s behaviour to this Court even if such behaviour were found contrary to the best interests of the child, when that exercise should have been characterised as an issue of exercising this Court’s jurisdiction in conformity with the power vested in the respondent under the Migration Act in respect of the detention of the appellants.”

The orders sought by the children if the appeal is successful are as follows:

A.The appeal be allowed.

B.The respondent pay the costs of the applicant’s costs at first instance and on the appeal.

C.The matter be remitted for hearing by the trial judge in accordance with law.

The Notice of Appeal ultimately relied upon by the father by our leave was filed on the first day of the appeal hearing. It contained the following grounds:
“1.That the learned Judge at first instance erred at law in failing to find that the orders sought by the Appellant Father were within the jurisdiction of the Family Court.

2.The learned Judge at first instance erred at law in failing to find that the orders sought by the Appellant Father were within the welfare jurisdiction of the Family Court and in failing to find that the orders sought by the Appellant Father were orders capable of being made pursuant to the provisions of Section 67ZC of the Family Law Act and Section 68B of the Family Law Act.

3.The learned Judge at first instance made an error at law in finding that the Family Court of Australia in South Australia did not have jurisdiction to make the orders sought by the Appellant Father.

4.The learned Judge at first instance erred at law in finding that the welfare jurisdiction granted by the Family Law Act is restricted by the Migration Act.

5.The learned Judge at first instance erred at law in finding that the welfare jurisdiction granted by the Family Law Act was restricted in its operation in the State of South Australia by virtue of Sections 69ZE and 69ZH of the Family Law Act.

6.The learned Judge at first instance erred at law in finding that the Family Court of Australia did not have jurisdiction in South Australia to make the orders sought by the Appellant Father to bind the Respondent Minister because of the provisions of Section 69ZE and 69ZH of the Family Law Act.

7.That the learned Judge at first instance erred at law in dismissing the applications of the Appellant Father.

8.That the learned trial Judge at first instance erred at law in failing to take into account or adequately take into account the assessment report of Karen Fitzgerald.

9.In dismissing the application of the father without hearing argument thereon, the learned Judge at first instance denied the Appellant Father, both procedural fairness and natural justice.”

The orders sought by the father if the appeal is successful are as follows:

“1.That A and M and their three sisters N ( aged 11 years, born in 1991), S (aged 9 years, born in 1993) and A (aged 5 years, born in 1997) do reside with the Appellant Father.

2. In the alternative:-
(a)That whilst the five said children or any one or more of them remain in immigration detention the Respondent Minister do give and the Appellant Father have contact to each of the five said children on such terms and conditions and at such place as this Honourable Court deems just and expedient.

(b)That whilst the five said children, or any one or more of them remain in immigration detention, the Respondent do give and the Applicant Intervener do have telephone contact with each of the five said children on no less than two occasions a week.

(c)That whilst the five children, or any one or more of them remain in immigration detention, the Respondent provide each of the five said children with adequate and proper medical treatment and attend promptly to the emotional and medical needs of each of them.

(d)That whilst the five said children, or any one or more of them remain in immigration detention, the Respondent accommodate each of the said five children, in such community housing or other accommodation and at such place and upon such terms and conditions as this Honourable Court may deem just and expedient.

(e)That whilst the five said children, or any one or more of them remain in immigration, the Respondent, and each of them, his servants, employees, agents or contractors be restrained and an injunction granted restraining them from assaulting the five said children, or any one or more of them.

(f)That whilst the five said children, or any one or more of them remain in immigration detention, the Respondent be restrained and an injunction is hereby granted restraining him from placing the five said children, or any one of them, in Woomera Detention Centre, or such other environment likely to induce trauma, development delay and suicidal behaviours in the five said children, or to any one or more of them.

(g) In the alternative that the matter be remitted for hearing before a single judge.”

APPLICATION BY NATIONWIDE NEWS PTY LIMITED

This media organisation filed an application seeking the following orders:

“1.That the court grant leave to the Applicant/Intervener to Intervene in these proceedings;

2.That publication of these proceedings be permitted pursuant to Section 121(9) of the Family Law Act 1975;

3.In the alternative to Order 2, that publication of these proceedings be permitted pursuant to Section 121(9) of the Family Law Act 1975 limited to:

a)The names of the parties to the proceedings;
b)The subject matter of the proceedings;
c)Matters relating to any conflict between the Family Law Act 1975 and the Migration Act 1958;

d)Matters relating to the conditions prevailing in detention centres for refugees;

4.That the Applicant/Intervener have leave to apply to the Full Court for further directions in respect of the publication of these proceedings;
5.Such further or other orders as the Court sees fit.”

For reasons we delivered ex tempore on 17 December 2002, we granted leave on the application of the applicant and ordered that publication of the proceedings be permitted pursuant to s 121(9) of the Family Law Act 1975 limited to:
(a)the name of the respondent, namely the Minister for Immigration & Multicultural & Indigenous Affairs;
(b)the subject matter of the proceedings; and
(c)any matters relating to any conflict between the Family Law Act 1975 and the Migration Act 1958.”

The Application of the Welfare Jurisdiction to Children in the State of South Australia

The Solicitor General argued and her Honour accepted that whatever jurisdiction was conferred by s.69ZC in respect of children, it was not conferred upon the Court in the State of South Australia.

This argument depends upon the proposition that the Family Court of Australia exercises jurisdiction in relation to children who are children of marriages only because of the State’s reference of power over ex nuptial children to the Commonwealth in 1987. This proposition depends upon a particular interpretation of the sections now contained in Subdivision F of Division 12 of Part VII of the Act which were inserted into the Family Law Act in 1995 by the Family Law Reform Act 1995 but which were originally inserted by the Family Law Amendment Act 1987.

Before her Honour and before us, no one was able to point to any expression of legislative intention by the Parliament in 1987 or 1995 seeking to achieve this seemingly unusual result.

Legislative History of Subdivision F

Subdivision F is a re-enactment of sections that were introduced into the Family Law Act by the Family Law Amendment Act 1987 in association with the reference of power by the States (then excepting Western Australia and Queensland) in relation to ex nuptial children. Those sections were as follows:

“Extension and application of Part

60E. (1) Subject to subsections (4) and (5), this Part extends to New South Wales, Victoria, South Australia and Tasmania.

(2) If:
(a)the Parliament of Queensland or Western Australia refers to the Parliament of the Commonwealth the following matters or matters that include, or are included in, the following matters:
(i)the maintenance of children and the payment of expenses in relation to children or child bearing;
(ii)the custody and guardianship of, and access to, children; or

(b)Queensland or Western Australia adopts this Part; then, subject to subsections (4) and (5), this Part also extends to Queensland or Western Australia, as the case may be.

(3) This Part applies in and in relation to the Territories.
(4) This Part extends to a State by virtue of subsection (1) or (2) only for so long as there is in force:
(a)an Act of the Parliament of the State by which there is referred to the Parliament of the Commonwealth:
(i)the matters referred to in subparagraphs (2) (a) (i) and (ii); or
(ii)matters that include, or are included in, those matters; or

(b) a law of the State adopting this Part.
(5)This Part extends to a State at any time by virtue of subsection (1) or paragraph (2) (a) only in so far as it makes provision with respect to:
(a)the matters that are at that time referred to the Parliament of the Commonwealth by the Parliament of the State; or
(b)matters incidental to the execution of any power vested by the Constitution in the Parliament of the Commonwealth in relation to those matters.

Additional application of Part

60F.(1) Without prejudice to its effect apart from this section, this Part also has effect as provided by this section.
(2)By virtue of this subsection, Divisions 3 to 6 (inclusive) (other than section 66G) and Divisions 10 and 13 have the effect that they would have if:
(a)each reference to a child were, by express provision, confined to a child of a marriage; and
(b)each reference to the parents of the child were, by express provision, confined to the parties to the marriage; and have that effect only in so far as they make provision with respect to the rights and duties of the parties to the marriage in relation to the child, including, without limiting the generality of the foregoing, provision with respect to:
(c)the rights and duties of those parties in relation to:
(i)the maintenance of the child and the payment of expenses in relation to the child; or

(ii)the custody, guardianship and welfare of, and access to, the child; and

(d) other rights and duties in relation to the child:
(i) arising out of the marital relationship;
(ii)in relation to concurrent, pending or completed proceedings between those parties for principal relief; or
(iii)in relation to the dissolution or annulment of that marriage or the legal separation of the parties to that marriage, being a dissolution, annulment or legal separation effected in accordance with the law of an overseas jurisdiction, where the dissolution, annulment or legal separation is recognised as valid in Australia under section 104.

(3)By virtue of this subsection, Divisions 1, 7, 8, 11, 12 and 14, and this Division, have effect according to their tenor.

Additional jurisdiction of courts

60G. In addition to the jurisdiction that, apart from this section, is invested in or conferred on a court under this Part, the court is invested with jurisdiction or jurisdiction is conferred on the court, as the case requires, in matters arising between residents of different States, being matters with respect to:
(a)the maintenance of children and the payment of expenses in relation to children or child bearing; or
(b)the custody, guardianship and welfare of, and access to, children.”

It can be seen that these sections are in the same terms as the sections comprising Subdivision F of Division 12 of Part VII of the present Act. The relevant part of the explanatory memorandum that accompanied that legislation said of these sections:

“Division 2 - Extension, application and additional operation of Part
New section 60E - Extension and application of Part
New section 60F - Additional application of Part
69.The present provisions of the Principal Act in relation to children are confined to children of a marriage in reliance upon the Commonwealth's constitutional power in marriage and matrimonial causes. Four States, (New South Wales, Victoria, South Australia and Tasmania) have enacted legislation referring powers to the Commonwealth Parliament in respect of the maintenance of children and the payment of expenses in relation to children and child bearing and the custody and guardianship of, or access to, children. Placitum 51(xxxvii) of the Constitution provides for the Commonwealth to make laws with respect to matters referred by the Parliaments of any State or States but so that the laws extend only to States by whose Parliaments the matter is referred, or which afterwards adopt the law.

70.The purpose of new Division 2 is to extend the operation of the Principal Act consequent upon the references of power. The scheme of the Division is as follows. New section 60E extends the operation of new Part VII to the referring States and, if Queensland or Western Australia also refer the relevant legislative powers to the Commonwealth or adopt the provisions of Part VII, to those States also. New Part VII is also to apply in and in relation to the Territories, where there are no constitutional limitations on the Commonwealth's power to legislate with respect to ex-nuptial children. New section 60F will have the effect that the provisions of the Principal Act relating to children will continue to apply in Queensland and Western Australia as at present in reliance upon the constitutional power with respect to marriage and to matrimonial causes.

New section 60G - Additional jurisdiction of courts
71.New section 60G extends the jurisdiction of the Family Court and other courts having jurisdiction under the Family Law Act to children's matters where the parties to the proceedings are residents of different States, in reliance upon the provisions in section 75(iv) of the Constitution. The purpose of this section is to avoid some of the jurisdictional problems that may arise because the new provisions relating 'to ex-nuptial children can constitutionally extend only to the referring States. For example, the provision will enable the Family Court to continue to exercise jurisdiction if the parties to the proceedings are residents of different States in respect of a child who is taken from a referring State to a non-referring State and who may therefore fall outside the extended operation of the Act. In such a case the Court could continue to exercise jurisdiction but may be required to apply as the substantive law the law in force in the relevant State.” (our emphasis)

The relevant sections upon which the Solicitor General relies are to be found in Sub-division F of Division 12 of Part VII, which is headed “Extension, Application and Additional Operation of this Part”.

Under that heading and immediately prior to s.69ZE appears the heading “Extension of Part to the States”.

(a) Section 69ZE

Section 69ZE(1) provides:

“Subject to this section and section 69ZF, this Part extends to New South Wales, Victoria, Queensland, South Australia and Tasmania”

The Solicitor General argued that this sub-section is the source of all of the jurisdiction of the Court under Part VII of the Act.

Sub-section (3) prescribes that the extension of the Part to a State applies only for so long as there is in force a State Act which refers to the Parliament the maintenance etc of children or parental responsibility for children or matters included in those matters, or a law of the State adopting this Part.

The Solicitor General argued that this meant that any exercise of power by the Court under Part VII of the Act was therefore dependent upon such power being conferred by the Parliament of the States. He also argued that since the States had not specifically conferred welfare jurisdiction in relation to children upon the Commonwealth, that s.69ZC had no application in South Australia.

It appears to us to be quite clear that the meaning of this and succeeding sections was to give effect to State references of power in respect of ex-nuptial children. We do not consider that sub-section (1) is the source of power for the court to exercise its jurisdiction over children of a marriage. This is to be found in Subdivision C of Part VII and particularly in s.69H(1) and s.69M We consider that such an interpretation is further supported by the fact that Western Australia is treated separately in sub-section (2) of s.69 ZE. This is significant because Western Australia did not refer powers in respect of ex-nuptial children.

(b) Section 69ZH

This Section appears under the heading “Additional Application of this Part”. Sub-section (1) provides:

“Without prejudice to its effect apart from this section, this Part also has effect as provided by this section.”

This sub-section would appear to make it clear that an additional power is being conferred by the section and supports the view that it is concerned to confine the operation of the Act in those States that had not referred power in respect of ex nuptial children to matters that lie within the constitutional power of the Commonwealth. This explains the references in the section to children of a marriage and parties to a marriage. The language of the section is convoluted and its meaning not immediately apparent, no doubt because of the complexity of the situation caused by some States not having referred power. We think it apparent that the section was not intended to derogate from the powers of the Court in relation to children of marriages, but rather to give them as much force as possible within constitutional limits in relation to those States where no reference of power had taken place.

This view gains further support from sub-section (2), which gives various portions of the Act including s.67ZC and s.68B the effect they would have as if each reference was confined to a child of the marriage and reference to parents was confined to parties to a marriage.

As we understand it, the Solicitor-General argues that it is this section that makes Part VII of the Act referable to children of a marriage as distinct from ex-nuptial children. We reject this argument for we consider that such a section would be otiose in relation to children of a marriage. Jurisdiction in respect of matters arising under Part VII is quite clearly conferred by s.69H(1). In so far as it relates to children of a marriage this conferring of jurisdiction is clearly within constitutional power. We think that the purpose of the sub-section is to make it clear that in those States that have not referred power, the operation of Part VII is not intended to extend it beyond the limits of power conferred by the Constitution and this is apparent from the Explanatory Memorandum.

Sub-section (3) has the similar object of confining the operation of the Part in non-referring States by providing that the provisions of sub-section (2) only have effect so far as they make provision with respect to the parental responsibilities of the parties to a marriage for a child of the marriage.

Sub-section (4) provides that various portions of the Act have effect according to their tenor.

The Solicitor-General points out that the portions of the Act referred to in this subsection do not include s.68B or s.69ZC. We think that nothing turns upon this, because the section is concerned with conferring additional powers upon the Court, which already has the welfare and injunction jurisdiction in relation to children of marriages.

Again however, the opening portion of the explanatory memorandum to the Family Law Amendment Bill 1987 is of some assistance:

“2.The implementation of the reference of powers means that the provisions of the Act relating to the custody, guardianship and maintenance of children may now cover ex-nuptial children within the limits of the enlarged legislative power of the Parliament resulting from the referral of powers. Apart from the operation of the Act in the Territories to which it applies, the provisions of the Act as so enlarged may for constitutional reasons extend only to the referring States. In relation to Queensland and Western Australia, the Act will continue to operate as in the past. To accommodate this extended operation of the Act, it has been found convenient to bring together in a single part of the Act - proposed new Part VII - the provisions relating to children.

3.Insofar as the Act will extend to the four referring States and will apply in the Australian Capital Territory, the Northern Territory and Norfolk Island, the provisions relating to children will apply generally to all children, whether children of a marriage or not, and their parents, whether married or not. In relation to the non-referring States, those provisions will be confined, as at present, to children of a marriage and to parties to a marriage. In particular, this means that the procedures under the Act, including the provisions for counselling and conciliation, will be available in disputes concerning ex-nuptial children except in relation to the non-referring States. In these two States, existing procedures under State law will continue to apply and the Family Court of Australia will have no enlarged jurisdiction over ex-nuptial children.”

These sections have hitherto received limited judicial consideration.

Callinan J in AMS v AIF (supra) said at [250 – 263]:

“250.One of the purposes of the Family Law Amendment Act 1987 (Cth) was to implement the reference of powers from New South Wales, Victoria, South Australia and Tasmania relating to the custody and guardianship of, and access to, children in those States and to apply the Family Law Act 1975 (Cth) as amended to the Territories to which the Family Law Act 1975 (Cth) applied.”

His Honour then set out s.60E and said:
“252. The express provisions of s 60E of the Family Law Act 1975 (Cth) therefore contemplated that the law applying in Western Australia to custody, guardianship and access issues in respect of ex-nuptial children would apply in that State, if, but only if there were a reference or an adoption of the Commonwealth provisions by that State, to the Commonwealth and the Family Court, but the Family Law Act 1975 (Cth) would apply to children in the Northern Territory.” (Our emphasis)

His Honour continued at [256]:
“256.The very broad definition of "child" in Part VII of the Family Law Act 1975 (Cth) is relevantly affected in certain important respects by s 69ZH(2) which states that particular divisions and sections of Part VII have the effect they would have, as if each reference to a child were confined to a reference to a child of a marriage. This restriction on the Act's reach is an acknowledgment of the Constitutional limitations on the Commonwealth's power contained in s 51 (xxii) as interpreted by the High Court in earlier cases decided in respect of similar provisions.

257.Questions as to the extent of the Commonwealth's power in this respect are now largely academic as a result of the referral of power by every state (except Western Australia) to the Commonwealth: see for example Commonwealth Powers Family Law - Children) Act 1986 (NSW). The New South Wales legislation refers to the Commonwealth matters relating to the "custody and guardianship of, and access to, children" (s 3(1)(b)). "Children" in this context are defined to mean persons under the age of 18 years.

258.It is against the background of these referrals by nearly all of the States that the Family Law Act 1975 (Cth) is stated to apply to New South Wales, Victoria, Queensland, South Australia and Tasmania. The referrals, however, do not make any express references to "welfare".”

After discussing the parens patriae jurisdiction His Honour continued [at 263]:
“263.It is unlikely that against the background of the long history of the exercise of the parens patriae jurisdiction over children essentially based on residence that the Commonwealth would have set out to legislate for the guardianship and custody of ex-nuptial children no matter where they might be resident at any time during infancy. (No question arises in this case as to the operation of the principle in those cases which might attract the diversity jurisdiction).” (footnotes omitted)

His Honour’s comments make it clear that he regards the purpose of the 1987 legislation as relating to the reference of powers over ex-nuptial children by a number of States to the Commonwealth. He also points to the fact that the States did not specifically refer welfare jurisdiction over such children. He clearly regards the Family Law Act as having no application to ex-nuptial children in Western Australia because it has not referred powers to the Commonwealth despite the apparently broad scope of s.63F. However, his comments are inconsistent with and provide no support to the argument of the Solicitor General.

In GPAO at [103-105], Gaudron J said of the Family Court’s jurisdiction in relation to children:

“The Family Court's jurisdiction
103. The Family Court is created by s 21(1) of the Act. By s 39(1), jurisdiction is conferred on it in matrimonial causes, defined in s 4(1) of the Act to include various proceedings between or by parties to a marriage, including proceedings for the dissolution of marriage, maintenance and property settlement. Jurisdiction is also conferred on the Family Court by s 69H(1) of the Act "in relation to matters arising under [Pt VII]", which, in general terms, is concerned with matters affecting children. And s 69ZJ, which is in Pt VII, confers jurisdiction "in matters between residents of different States, being matters with respect to:
(a)the maintenance of children and the payment of expenses in relation to children or child bearing; or

(b) parental responsibility in relation to children.

104.Subject to exceptions in ss 69ZE and 69ZF (which are not presently relevant), Pt VII of the Act extends to children of a marriage and ex-nuptial children in New South Wales, Victoria, Queensland, South Australia and Tasmania, those States having referred power to legislate in that regard to the Commonwealth to the extent that it does not otherwise have that power. Provision is made in s 69ZE(2) for the extension of Pt VII to children in Western Australia in the event that it, too, refers that power to the Commonwealth. Until that happens, the effect of s 69ZH is that various provisions of Pt VII operate in Western Australia in relation to the children of a marriage.

105.By s 69ZG of the Act, Pt VII "applies in and in relation to the Territories." The jurisdiction invoked in this case is jurisdiction under Pt VII as applied in the Territories by s 69ZG. In its application to ex-nuptial children, s 69ZG is a law under s 122 of the Constitution and not a law under ss 51(xxi) or (xxii) which are concerned, respectively, with "marriage" and "divorce and matrimonial causes". It is convenient to refer to the jurisdiction conferred by s 69ZG with respect to ex-nuptial children as "s 69ZG jurisdiction".” (our emphasis, footnotes omitted)

We think that the argument of the Solicitor General is also inconsistent with Gaudron J’s views as expressed in this passage.

Gleeson CJ and Gummow J said at [25]:

Section 65C states that a parenting order in relation to a child may be applied for by either or both of a child's parents, or the child, or any other person concerned with the care, welfare or development of the child. There is no requirement that the child be the child of a marriage within the meaning of the decisions expounding the reach of the power of the Parliament to make laws under s 51(xxi) of the Constitution with respect to "Marriage". However, the effect of the provisions for extension, application and additional operation of Pt VII, made by subdivision F (ss 69ZE-69ZK) of Div 12, is to confine provisions such as s 65C in certain circumstances. This is achieved by identifying as a criterion the continuation of references of power by the Parliaments of the States under s 51(xxxvii) of the Constitution (ss 69ZE and 69ZF) and by reference to the limitations attending the marriage power (s 69ZH). Section 69ZJ should also be noted. This is an investment of jurisdiction pursuant to s 77(i) and s 75(iv) of the Constitution. The section states:
"In addition to the jurisdiction that, apart from this section, is invested in or conferred on a court under this Part, the court is invested with jurisdiction or jurisdiction is conferred on the court, as the case requires, in matters between residents of different States, being matters with respect to:
(a)the maintenance of children and the payment of expenses in relation to children or child bearing; or
(b) parental responsibility in relation to children."

This passage seems to us to indicate that their Honours’ view was that these sections confined the operation of Part VII within constitutional limitations in those States that did not refer powers. Unlike Callinan J in AMS v AIF (supra), Gleeson CJ, Gummow J and Gaudron J did not specifically advert to the issue of the referring States not having specifically transferred welfare powers in relation to ex-nuptial children. Gaudron J would appear to have left open the application of the Family Law Act in non-referring States to ex-nuptial children in those States.

We can see nothing in these statements of principle that lends support to the proposition advanced by the Solicitor General or the findings of Dawe J as to the proper construction of Subdivision F. On the contrary, they appear to assume the conferring of jurisdiction upon the Court in respect of children of marriages without limitation. They also appear to confirm, as does the Explanatory Memorandum, that the purpose of Subdivision F was to provide a legislative framework to accommodate the reference of powers in relation to ex nuptial children by some, but not all, of the States and to give the Family Law Act such operation as the Constitution permits in the States that have not referred powers. So far as the Territories were concerned the position was much simpler because, as Gaudron J pointed out, the conferring of jurisdiction in relation to ex-nuptial children involved the exercise of power under s.122 of the Constitution.

In addition, I would regard it as implicit that the Secretary of State should exercise all reasonable expedition to ensure that the steps are taken which will be necessary to ensure the removal of the individual within a reasonable time." (our emphasis)

As their Honours noted, his Lordship gave the respondent three days to respond. They also noted that the decision has since been followed in a number of cases and has been approved by the Privy Council in Tan Te Lam v Superintendent of Tai A Chau Detention Centre [1997] AC 97 and by the House of Lords in R v Secretary of State for the Home Department; ex parte Saadi [2002] 4 All ER 785 at 793.

It is to be noted that as in Australia, the relevant legislation in the Hardial Singh case contained no time limit on detention beyond the phrase “pending his removal”.

As the Full Court note in Al Masri, the decision has also been followed by the Hong Kong Court of Final Appeal, of which Sir Anthony Mason was a member of the majority, in Thang Thieu Quyen & ors v Director of Immigration & anor (1997-98) 1 HKCFAR 167.

The Full Court concluded as to s.196 at [120] that its language, either taken alone or in the context of the scheme as a whole “does not suggest that Parliament did turn its attention to the curtailment of the right to liberty, in circumstances where detention may be for a period of possibly unlimited duration and possibly even permanent.” Again we stress that this comment applies with even greater force to the detention of children.

We also adopt the views of the Full Court as to construction in accordance with Australia’s international obligations that are set out at [138-145] of the judgment. We note in particular paragraph 154 as to the possible effect of UNCROC. This was not argued before the Federal Court but is highly relevant to the matter before us. It seems inconceivable to us that the Federal Parliament in enacting the Migration Act would have contemplated the lengthy detention of children.

While the primary issue in Al Masri related to the situation of a person who has made a request under s.198, the principles expressed by the Full Court are obviously of general application.

In the present case it is clear that the trial Judge should have directed a much closer inquiry as to whether the children were being lawfully detained and as to the validity of s.196 in its application to them than she did. She was referred to the decision of Merkel J in Al Masri at first instance but dismissed it as having no relevance. In this we think that she was plainly wrong.

This may have been because before Dawe J and before us to some extent, the argument proceeded upon the basis that the matter for determination was as to whether one Commonwealth Act should be interpreted as superseding the other. In particular it canvassed whether an Act such as the Migration Act which related to a particular class of persons should be able to override the more general jurisdiction conferred upon this Court under the Family Law Act. The other view that was put was that the Family Law Reform Act 1995, which was passed subsequent to the Migration Act should therefore supersede it. In our view her Honour rightly rejected the argument that the later passage of the Family Law Reform Act gave it primacy, but the above decisions make it clear that the issue is far more complex than that.

We think that the proper analysis is to determine the limits of s.196(3) before determining the issue as to whether the Court has jurisdiction to make orders in its welfare jurisdiction to order the release of the children. In this regard, we note that Drummond J’s decision in Molisi is distinguishable. His Honour there said at [20]:

“I hold that, even if I have jurisdiction to issue an injunction under s 68B (or s 114(3) for that matter) of the Family Law Act in a proper case, (a point I leave open), those provisions, properly construed, do not empower me to restrain the Minister and his officers from performing mandatory duties cast on them by the provisions of s 189 and 198(5) the Migration Act, though performance of those duties will have a serious detrimental impact on the welfare of two Australian citizen children of Mr and Mrs Molisi’s marriage.”

Although his Honour addressed the injunctive contained in the Family Law Act, he did not consider the issue of the Court’s welfare jurisdiction. We therefore consider that this decision is irrelevant to the issues before us.

Drummond’s decision in Molisi was also given prior to the decision of the Full Court of the Federal Court in Al Masri, which emphasises the issue of the ability of unlawful non-citizens to take steps to bring their detention to an end under s.198(1).

The subject children in this case are aged 14, 12, 11, 9 and 6. It seems to us to be unlikely that any of these children would have the capacity to make a request to the Minister under s.198(1). It should be noted from the outset that the ‘capacity’ of a child will vary according to a number of factors, including age. While the word ‘capacity’ has not been judicially considered, questions of an age at which children can exercise rights or participate in legal processes have been the subject of case law and academic opinion.

Most categories of law have special rules to deal with children and young people. For example: the evidence of a child was historically subject to special tests; children cannot be held to an otherwise binding contract; and young people are not entitled to participate in democratic processes. Furthermore, there are long-standing principles of common law related to the capacity of a child to form criminal intent, make a decision about medical treatment or be held responsible for a tortious act.
While the underlying basis of this method might be found in the common law principle of doli incapax, it is more recently known as ‘Gillick competence’ from Gillick v West Norfolk & Wisbech Area Health Authority [1985] 3 All ER 402. It is not always called Gillick competence, but it is clear that increasingly, across disciplines, a child’s individual maturity and a range of other circumstances are being considered when determining their capacity to make decisions or exercise legal rights.

Gillick competence was incorporated into Australian common law by the High Court in Marion’s case (supra). Deane J, whose words echoed the concept affirmed by the majority, said (at FLC 79,203):

“The effect of the foregoing is that the extent of the legal capacity of a young person to make decisions for herself or himself is not susceptible of precise abstract definition. Pending the attainment of full adulthood, legal capacity varies according to the gravity of the particular matter and the maturity and understanding of the particular young person.”

The Australian Law Reform Commission (ALRC) and the Human Rights and Equal Opportunity Commission (HREOC) in 1997 conducted a thorough examination of the concerns of children and young people accessing the law. (Australian Law Reform Commission and the Human Rights and Equal Opportunity Commission, Seen and Heard: Priority for children in the legal process, Commonwealth of Australia, Canberra, 1997). They noted [at 91] the “formidable barriers [which] prevent or limit children’s participation in legal processes.”

The significance of these points in this case is that given this research found that ordinary Australian children and young people face significant barriers to exercising their legal rights, these barriers are amplified when disadvantage is overlayed by being held in a detention centre in a country with limited language skills.

From the examination of the various disciplines of law alongside credible research on the issue of the experience of children and young people before the law, two conclusions are clear:
1.A child’s capacity in law depends upon that child’s individual circumstances; and
2.In spite of increasing capacity, commensurate with age and other factors, major barriers still exist in children exercising their legal rights.

While the common law and legislation (where it exists) increasingly reflect a tendency towards children having rights, responsibilities and capacity commensurate with their maturity and particular circumstances, any analysis must take into account factors which will inhibit the exercise of those rights, responsibilities and capacities. For example, a child who has experienced trauma or has spent time separated from one or both parents may have a different level of competence to one who has grown up in a ‘stable’ household. A child whose first language is not English in Australia may have a different level of competence to a child whose first language is English. A child whose schooling has been sporadic or interrupted may have a different level of competence to a child who has progressed through school without incident. In any given case, a child’s capacity can only be properly assessed by examining a range of factors and influences on that child.

This brief survey of some key areas indicate that Gillick-like tests exist in many spheres of law. The law has developed to avoid strict tests or the application of set criteria to test a child’s capacity. It is clear that tests of capacity should be based on a range of factors, where age is but one of many. A child’s criminal or tort liability will be determined first by reference to their level of maturity, which can only be assessed by examining a range of other factors. Similarly, a child’s ability to be held to an otherwise lawful contract will depend on their understanding of the contract.

These Gillick-like tests appear to be the most appropriate way of determining a child’s capacity. They allow for an assessment of a child’s age alongside other important factors. Factors such as, for example, isolation, English language skills, schooling, access to resources and the administrative barriers to exercising legal rights must also be considered, as they too will impact upon a child’s capacity.

Any assessment of the capacity of the children in this case to bring their detention to an end would have to take into account these kinds of factors, and other factors specific to each of the children as individuals. While this would ultimately be a matter for the trial judge, on the face of it, it seems unrealistic to think that any of them could bring their detention to an end under s.198(1) of the Migration Act. To do so would involve them taking a decision exposing themselves to an uncertain future in a country with which they have little or no familiarity without the protection of their parents. Indeed for the Minister to accede to such a request in the case of a child would leave him open to strong criticism and would also probably be in breach of Australia’s obligations under UNCROC.

In the present case, consistent with the decision of the Full Court of the Federal Court in Al Masri, we consider that if the children or any of them are unable to bring their detention to an end, therefore, like Mr Al Masri, their continued detention is unlawful.

Further, it seems to us that because, these children are unlikely to have the capacity to make a request under s.198(1) of the Migration Act, they are therefore not in a position to bring their detention to an end of their own accord. It is true that their parents could do so, but to regard this as a determining factor seems to us to effectively involve treating the children as the chattels of their parents.

It is quite apparent that under our law children are entitled to be treated as individuals and not as the property of or appendages of their parents. They are entitled to the same rights and protections at common law and under the Constitution as adults subject to Australian law. It thus seems inconceivable that their continued detention should depend upon whether or not their parents have made a request for repatriation under s.198(1). Regardless of the issue of the incorporation of the principles of UNCROC into Australian law, it is clearly appropriate to have regard to it in construing legislation of this sort. In this regard we look to Article 2(2) of UNCROC which provides as follows:

“2. States Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child’s parents, legal guardians or family members.” (our emphasis)

In the present case the continued detention of these children appears to be, so far as they are concerned, an indefinite detention. If the Minister is correct, this can only be brought to an end by the actions of their parents or the children attaining a sufficient capacity to make a request for repatriation themselves. Such an interpretation of the legislation raises the very real possibility of these children spending their entire childhood in detention. It seems to us that the Migration Act cannot be interpreted to produce this effect. If it does then we consider that s.196(3) is unconstitutional insofar as it purports to do so.

Like the Full Court of the Federal Court in Al Masri we can find nothing in the scheme under the Migration Act or s.196 that suggests that Parliament contemplated such a departure from fundamental freedoms and individual liberty that would produce such a result.

We have already referred to the discussion in the Full Court’s judgment in Al Masri of the impact of international instruments in this area. In this regard, in addition to the matters there discussed, we refer to Articles 2(2) above, 9, 22(1), and 24.

In particular we also refer to Article 37 of UNCROC and in particular paras (b), (c) and (d). Article 37 states:

“States Parties shall ensure that:
a.No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below 18 years of age;
b.No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time;
c.Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular every child deprived of liberty shall be separated from adults unless it is considered in the child's best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances;
d.Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action.”

The indefinite detention of these children is, in our view, incompatible with this Article and constitutes a serious breach of Australia’s obligations under the Convention. These conclusions are strengthened and exacerbated if the psychological report concerning these children to which we have referred is found to have substance. More importantly for present purposes we consider that if they lack competence to make a request under s.198(1) then their continued detention is unlawful.
In such circumstances, s.196(3) or the Migration Act does not operate as a bar to the exercise of the Court’s welfare jurisdiction nor does it prevent a court from ordering the release of the children from detention. It was pointed out by the Federal Court in Al Masri that such a conclusion does not mean that the children cease to be unlawful non-citizens, nor does it mean that they are not subject to deportation. That issue does not arise in this case.

Such a conclusion is not without its practical difficulties, because although the children’s detention may be unlawful, this is not to say that that of their parents can be similarly regarded. That issue is not before us. There are however alternatives that could no doubt be canvassed before the trial judge, who can make appropriate orders for the welfare of the children. It is we think, inappropriate for us to embark upon this exercise, because the full facts are not before us by reason of the course taken at trial. Further, consistent with the decision of the Full Court of the Federal Court in Minister of Immigration & Multicultural & Indigenous Affairs v VFAD of 2002 (supra) interim orders could be made for the release of the children pending the determination of their capacity to make a request for repatriation. We note in this regard an affidavit sworn on 15 December 2002 by Mr Dale West, the Director of an organisation known as Centacare Catholic Family Services in South Australia. The affidavit was filed on behalf of the children and admitted into the appeal record. In it, Mr West swore that Centacare “can and will take responsibility for providing accommodation and support” to the five children if the Court were to release the children into Centacare’s care and control.

If we are wrong in our view as to the probable unlawful nature of the children’s detention, we turn to the second question as to whether there is room for the operation of the welfare jurisdiction while the children remain in immigration detention.

In this regard we have noted the decision of Ryan J in VLAH v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1554 (13 December 2002). In that case, the applicant had been granted a bridging visa which was granted in relation to a pending appeal to the Full Court of the Federal Court. However, he withdrew his appeal and as a result was obliged, in accordance with an undertaking given to the Department to depart Australia, to present himself to the Department for removal by the day of the hearing, 10 December 2002. Apparently a bridging visa had been granted because the applicant’s physical and mental health had deteriorated significantly while in the Curtin Immigration Detention Centre in 2001.

There was evidence before Ryan J, that the applicant was severely depressed. He argued that upon surrendering himself to the Department he could not lawfully be returned to an immigration detention centre, contending that the modes of detention which were lawfully and constitutionally available should be confined when the circumstances attending the non-citizen in question was as extreme as those affecting the applicant.

In the context of judicial review, Ryan J at [9] took the view that the selection of a particular mode of detention was invalid only if it went outside the definition of immigration detention in s.5 of the Act or if it was made for some ulterior purpose like punishment of the non-citizen. His Honour concluded:

“… the only arguable contentions open to the applicant are, in my view, founded on the provisions of the Act on its proper construction, requires by implication that the mode of detention not be unreasonable in the circumstances of an individual applicant, and that the selection of a particular mode of detention not be actuated by an ulterior purpose. For the reasons I have already outlined above, I am not persuaded that the definition of “detain” supports an implication that the selection of a mode of detention will be invalid if it is not reasonable in light of the circumstances of the non-citizen concerned. Mr Manetta contended, as is undoubtedly correct, that the effect of the definitions in s5 “immigration detention” and “officer” is that the Minister may in writing authorise detention in a wide range of places other than Detention Centres established under the Act and may authorise in writing any person to act as a Detention Officer in such a setting. For example it might well be possible to have the applicant confined to immigration detention in the Uniting Church facility where he presently resides, and have him “held by, or on behalf” the manager of that facility, authorised to be an “officer” as contemplated by paragraph (f) of the definition of officer quoted above. However, the flexibility in the selection of a mode and place of detention which the various statutory definitions afford does not, by implication, restrict the Minister’s choice in a particular case, or impose any statutory duty to consider alternative modes of detention.”

His Honour also rejected an argument based upon the proposition that the impact of detention on the mental or physical health of an individual unlawful non-citizen could result in its selection being characterised as punitive.

In this regard we also refer to NAMU of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 401 where the Full Court of the Federal Court rejected a similar argument.

In an important passage which has relevance to the present case, Ryan J said at [14]:

“In substance, this is an application contending that any decision (not yet taken) to return the applicant to an immigration detention centre would, having regarding to the consequences for the applicant, be so unreasonable that no reasonable decision-maker could make it. Such an argument could only succeed if the decision were one which this Court has jurisdiction to review. The decision in this case would not be made under an enactment so as to be amenable to judicial review as it is not a decision expressly provided for in the Act. It would be merely a decision giving administrative effect to a mandatory requirement to detain a non-citizen. That is not say that decisions as to where, or under what conditions, non-citizens are housed will always be entirely free from judicial scrutiny. Mr Gunst QC conceded that the Minister owes persons in immigration detention a duty of care. Accordingly, if an actual or apprehended breach of that duty could be demonstrated, interlocutory relief might well be available in this or some other court. However, this is not such a case.”

We agree with Ryan J as to the nature of the decision in question and the fact that it would not be subject to judicial review in the Federal Court. However, we are of the view that it clearly would be subject to review by a court exercising welfare jurisdiction as this Court does in relation to children. This is precisely the type of supervisory jurisdiction that the High Court envisaged that the Court exercising parens patriae jurisdiction would engage in relation to child welfare authorities in Johnson’s case. (supra). We therefore consider that her Honour was wrong in her conclusions as to the exclusory nature of the provisions of the Migration Act in relation to proceedings in the welfare jurisdiction.

We also think that Ryan J’s characterisation of the nature of the decision making process in relation to the place of detention negates any effect of s.474 which we think would have no application to this Court’s review of this type of decision of the Minister.

We consider that if it was to be determined that the continued detention of the children was not unlawful, the Court could not order their release, but could nevertheless give directions in relation to their welfare, including directions as to the nature and type of detention to which they are to be subject, as to medical and other treatment to be made available to them and as to the provision of appropriate education. There may well be other matters relating to their welfare that could be the subject of Court Orders.

Conclusions

For the reasons we have set out above, our conclusions in this appeal are that:

1.The first four grounds of Appeal of the children are established.
2.The first seven grounds of appeal of the appellant intervener father are established.
3.The welfare jurisdiction conferred upon the Court by s.67ZC and the injunction powers conferred upon the Court by 68B of the Family Law Act enable the Court to make orders for the welfare of and in the best interests for the children the subject of these proceedings.
4.Such powers extend to the making of orders directed to the Minister.
5.If a trial judge finds that the continued detention of the children is unlawful, then the Court has the power to order the Minister to release the children.

In these circumstances the remaining grounds of appeal do not arise for consideration.

It is necessary to touch briefly upon the procedural situation. Apart from the issue of costs, which remains to be considered, the children have been successful in obtaining the orders sought by them.
The father, at the time of formulating the orders sought by him, was not in detention. Accordingly, the first order sought by him was that the children should reside with him. We assume that he would not now wish the Court to make such an order, as he is also detained.
The remaining orders sought by him presuppose that the children will remain in immigration detention. It is apparent from our reasons for judgment that this is not necessarily the case. In the circumstances we grant leave to him and the children to reformulate the orders sought by them.

ELLIS J: This is an appeal by five children, by their next friend, their mother, and an appeal by the father of those children against the order made by Dawe J. on 9 October 2002, namely:-

“1.That the hearing date of the 18 November 2002 is hereby vacated.

2.That the Form 3 Application of the applicants filed on the

31 July 2002 is hereby dismissed.

3.That the Form 8 Application filed on the 18 September 2002 and the Form 3 Application filed on the 19 September 2002 of the father are hereby dismissed.

4.That the question of costs sought by the Minister be adjourned to 18 November 2002 at 9.30 am for mention only before the Honourable Justice Dawe.

AND IT IS NOTED that the Minister’s solicitor to advise solicitors for the applicants and the intervener if costs are being sought against each of them before that date.”

The history of the proceedings and relevant background has been set out by Nicholson CJ. and O’Ryan J. in their joint judgment (which I have had an opportunity to read in draft form), as have the reasons of the trial Judge for dismissing the applications. It is thus not necessary for me to reiterate that material. Their Honours also set out the grounds of appeal relied upon in the Notices of Appeal filed on behalf of the children and by the father. They record that the appeals do not raise any disputed issue of fact, as the factual background to the applications was not considered by Dawe J. Thus, if the appeals are allowed, it would be necessary to remit the applications for rehearing by a single Judge of the Court.

It was common ground before us that the five children are the children of the marriage of the next friend, their mother, and the appellant/intervener, their father. It was also common ground before us that the children are unlawful non-citizens within the meaning of s.14 of the Migration Act 1958 (Cth). Further, it was common ground that, by their application, the children sought orders the effect of which would require the Minister to release them from the Woomera Immigration Reception and Processing Centre, and restrain him from detaining them at that Centre or another Centre in the future, but not release them from immigration detention.

By his application, the father seeks an order which would have a similar effect to those sought by the children and, in the alternative, the order set out in paragraph 88 of judgment of the Chief Justice and O’Ryan J.

The Application of the Welfare Jurisdiction and Injunctive Powers of the Family Court of Australia

I agree with the conclusion of the Chief Justice and O’Ryan J. that the welfare jurisdiction of the Court in relation to a child of a marriage encompasses the substance of the parens patriae jurisdiction, freed from the preliminary requirements of a wardship order. That jurisdiction extends to the making of orders which are appropriate to avert a risk to the well being of a child of a marriage. I further agree with the conclusions reached by their Honours in paragraph 175 of their joint judgment, and with their reasons for concluding that s.67ZC confers an additional jurisdiction upon the Court. There are, however, limits to the scope of the welfare jurisdiction: see Secretary, Department of Health and Community Services v JWB and SMB (Marion’s case) (supra) where at 261 Mason CJ, Dawson, Toohey and Gaudron JJ. said [footnotes omitted]:-

“Ultimately, however, any limitation on the jurisdiction of the Family Court conferred, or apparently conferred, by the Family Law Act must be constitutional. The Act is limited in its operation by reference to the constitutional powers under which it is enacted: “Marriage” (s. 51(xxi)); “Divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants” (s. 51(xxii)); and, so far as the Northern Territory is concerned, the territories power (s. 122). In the present case the emphasis was naturally on the marriage power and, as well, the territories power.

In Fountain v Alexander Gibbs C.J. said:-

“The power of the Parliament to make laws with respect to marriage does not extend to laws for the protection or welfare of the children of a marriage except in so far as the occasion for their protection or welfare arises out of, or is sufficiently connected with, the marriage relationship.”

Clearly there are limits on the scope of the welfare jurisdiction, as with the custody and maintenance jurisdictions, though the scope of the jurisdiction will nevertheless be very wide. So long as an order of the Family Court is constitutional, there can be no limitation on the Court’s powers emanating from the need to preserve the scope of State legislative powers. To hold otherwise would be, as counsel for the Commonwealth said, to take the law back beyond the Engineers’ Case.

It is clear enough that a question of sterilization of a child of a marriage arises out of the marriage relationship and that the sterilization of a child arises from the custody or guardianship of a child. Therefore, jurisdiction to authorize a sterilization is within the reach of power of the Commonwealth, quite apart from the operation of s. 122 of the Constitution.”

After referring to Marion’s case and P v P, the Chief Justice and O’Ryan J. concluded:-

“234.These cases make it clear that the Court’s welfare jurisdiction is akin to the parens patriae jurisdiction and they also make it clear that this is a valid exercise of constitutional power depending on the subject matter of the order therefore, it is necessary for a court exercising such jurisdiction to satisfy itself that the subject matter of the order is connected with the appropriate heads of constitutional power.”

I respectfully agree with those conclusions.

Exercise of Constitutional Power

In the instant case, it is submitted that the appropriate heads of constitutional power are to be found in s.51 of the Constitution, paragraphs (xxi) (Marriage), (xxii) (Divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants) and (xxix) (External affairs).

I agree with the conclusion of Nicholson CJ. and O’Ryan J, and generally with their reasons that the jurisdiction conferred by ss.67ZC and 68B extends to enable the Court to make a particular order in relation to a child of a marriage against a third party where an appropriate connection between the subject matter of the order and an appropriate head of constitutional power exists.

It was submitted on behalf of the Minister that the parents of the children retain full parental authority notwithstanding their detention. In my view, the parents retain parental responsibility although it is clear that, as a result of their collective detention, some of the parental duties, responsibilities and authorities normally exercised by parents are limited or suspended for the duration of their detention.

I accept, for the reasons advanced on behalf of the Minister, that he is not the legal guardian of the children. I also accept that, in other proceedings, the Minister has conceded that he owes a duty of care to persons in detention: see paragraphs 237 and 397 of the joint judgment of the Chief Justice and O’Ryan J. Notwithstanding his powers under the Migration Act, the Minister, does not, in my view, stand in loco parentis to children of a marriage who are in immigration detention nor, by reason of such detention, is he exercising a type of de facto parental authority as Nicholson CJ. and O’Ryan J. concluded at paragraph 238 of their joint judgment (as to the meaning of a person in loco parentis, see Bennet v Bennet [1879] 10 Ch.D. 474 at 477). He is exercising powers and discretions vested in him whilst the children remain in immigration detention.

The children and the father submitted that the subject matter of the order sought by each is sufficiently connected with appropriate heads of constitutional power, whereas the Minister submitted to the contrary.

The Chief Justice and O’Ryan J. concluded that the circumstances of the present case, namely that the children, being the children of the marriage of their parents, are detained in circumstances contrary to their welfare as a result of being brought to this country by their parents, are sufficiently related to the marriage of their parents to activate the constitutional power of the Commonwealth to protect them.

In P v P (supra), Mason CJ, Deane, Toohey and Gaudron JJ. at 600 said [footnotes omitted]:-

“The grants of legislative power contained in pars (xxi) and (xxii) of s. 51 of the Constitution are cumulative. Each must be given its full scope and effect. Neither is to be read down by reference to the other. Paragraph (xxi)’s grant of legislative power with respect to “Marriage” encompasses laws dealing with the protection or welfare of children of a marriage in so far as the occasion for such protection or welfare arises out of, or is sufficiently connected with, the marriage relationship. To a significant extent, that operation of par. (xxi) overlaps par. (xxii)’s express conferral of legislative power with respect to “parental rights, and the custody and guardianship of infants” in relation to “Divorce and matrimonial causes”.”

The orders sought are orders for the release of the children, not from immigration detention, but from detention at a particular location - continued detention at which is said to be contrary to their welfare or release from a particular form of detention, namely at a centre such as the Woomera Immigration Reception and Processing Centre. In my view, the subject matter of that order is not sufficiently connected with the constitutional powers referred to in ss.51(xxi) and (xxii) of the Constitution. Thus, in my opinion, the Court does not have the power to make the order sought by the children.

However, the provision of adequate, proper and prompt medical treatment for the children and of ensuring they are not exposed to violence and trauma are matters directly related to their protection and welfare. Such matters arise out of and are aspects of the relevant marriage relationship.

After referring to relevant authorities and submissions of the parties, the Chief Justice and O’Ryan J. concluded that in passing s.67ZC, the Parliament implemented the relevant parts of UNCROC, and that therefore s.67ZC is supported by the external affairs power.

The Full Court in B and B: Family Law Reform Act 1995 (supra) referred extensively to the background to the passage of the Family Law Reform Act 1995. The Full Court acknowledged (at paragraph 3.3) the various origins of Part VII, including the Children Act 1989 of the United Kingdom and noted that UNCROC appeared to be another source. However, as Mason CJ. and Deane J. observed in Minister for Immigration and Ethnic Affairs v Teoh (1994-1995) 183 CLR 273 at 286-287:-

“It is well established that the provisions of an international treaty to which Australia is a party do not form part of Australian law unless those provisions have been validly incorporated into our municipal law by statute.”

The Reform Act does not by clear language incorporate the Convention, nor is the Convention mentioned therein, or attached to it as a Schedule.

In my view, the Parliament did not, in enacting the Reform Act, implement UNCROC or the relevant parts thereof, and thus the provisions of Part VII of the Act in particular s.67ZC, are not laws with respect to external affairs under s.51(xxix) of the Constitution. See also Richardson v Forestry Commission (1987-1988) 164 CLR 261 per Deane J. at 311. Accordingly, the Court does not have the power to make the orders sought by reference to s.51(xxix).

Migration Act

I agree with the analysis of the Chief Justice and O’Ryan J. as to the limits of s.196(3) of the Migration Act, namely that a statutory provision in such terms must be interpreted within the context of the authorities they referred to, such that administrative detention extends for a period only for as long as is necessary to give effect to the provisions of s.196(1). I also agree with the observations of the Full Court of the Federal Court in Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri (supra) at 276, namely:-

“155.We are therefore fortified in our conclusion that s 196(1)(a) should be read subject to an implied limitation by reference to the principle that, as far as its language permits, a statute should be read in conformity with Australia’s treaty obligations. To read s 196 conformably with Australia’s obligations under Art 9(1) of the ICCPR, it would be necessary to read it as subject, at the very least, to an implied limitation that the period of mandatory detention does not extend to a time when there is no real likelihood or prospect in the reasonably foreseeable future of a detained person being removed and thus released from detention. It follows from our earlier discussion that we consider the language of the statute in question does permit the implication of such a limitation.”

However, I do not agree with the conclusion reached by the Chief Justice and O’Ryan J. that, in the instant case, the continued detention of the children is unlawful. In my view, in the instant case, it cannot be said that there is no real likelihood or prospect in the reasonably foreseeable future of the children being removed and thus released from detention.

Conclusion

For the reasons given, I am of the view that the Court does not have the power to make the orders sought by the children. Accordingly, I would dismiss the appeal of the children.

However, in exercising its welfare jurisdiction, the Court does have the power to make orders covering the subject matter referred to in paragraph 421 hereof. To that extent, I would allow the appeal of the father and remit that part of his application for rehearing by a single Judge of the Court.

ORDER OF THE COURT

429. The order of the Court will therefore be:

1.That the appeal of the appellant infants and of the appellant intervener be allowed.
2.That paragraphs 1, 2 and 3 of the order made on 9 October 2002 be set aside and in lieu thereof it be ordered that the application of the appellant infants filed on 31 July 2002 and the applications of the appellant intervener filed on
18 September 2002 and on 19 September 2002 be remitted for rehearing as a matter of urgency before a Judge other than the Honourable Justice Dawe.

I certify that the preceding 429 paragraphs
are a true copy of the reasons for judgment
of this Honourable Full Court.

Associate