JDP v Gop

[1994] HCATrans 190

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sl40 of 1993

B e t w e e n -

Applicant

and

Respondent

Case stated and cause removed

pursuant to section 40(1) of

the Judiciary Act 1903)

MASON CJ
BRENNAN J
DEANE J

DAWSON J

TOOHEY J

P(2) 74 3/2/94

GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 3 FEBRUARY 1994, AT 10.03 AM

(Continued from 2/2/94)

Copyright in the High Court of Australia

MASON CJ: Yes, Mr Jackson.

MR JACKSON:	Your Honours, I was in the course of dealing with paragraph 4 of our outline of submissions.
The second point I wish to make about it was this,
that the nature of the parens patriae jurisdiction,
as the reasons for judgment of the members of the
Court in Marion's Case show, is not limited in any way which would exclude treatments of the kind
presently in question.  May I take Your Honours
very briefly to the three passages to which we
there refer, in 175 CLR, first at page 258 at the
bottom of the page.  It is the paragraph commencing
"No doubt the jurisdiction over infants", and it goes through to the top of the next page.

Your Honours, I think the reference we have

given is page 302 in the reasons for judgment of

Your Honour Justice Deane. It really commences at

page 301 in a paragraph commencing at about point 7

on the page and going through to the bottom of that

page and then to the end of the long paragraph on

page 302. As is apparent from what Your Honour has

there set out, Your Honour's reasons do contemplate

a variety of orders including the possibility of

direct authorization of the operation. If I could

go from that, Your Honour Justice McHugh, page 318

commencing about line 5 and going through to the

end of that paragraph.

Your Honours, the third thing we wish to say

in this regard is that in particular it would seem

strange, if we may say so with respect, if the

concept of welfare did not include the question

whether it was appropriate, in the particular

circumstances or the circumstances of the

particular child, for the treatment to be carried

out or not. I say "or not" because that is one of

the decisions that might be made in relation to a

child.

Your Honours, could I turn then to the question of the exercise and manner of exercise of
the jurisdiction of the Family Court.	The

jurisdiction of that court may be exercised by the

making of orders expressed in this way: "Such

order in respect of the relevant matter as is
considered proper." Could I take Your Honours to

the provision. It is section 64(l)(c) of the Act

which in the pamphlet copy is at page 73.

Your Honours will see the structure of the

provision is that it commences on page 72 with

section 64(1). It says:

In proceedings in relation to -

P(2) 75 3/2/94

various matters. Then the considerations are set

out in paragraphs (a), (b), (ba) and (bb). Then

paragraph {c) says:

subject to -

those paragraphs -

the court may make such order in respect of

those matters as it considers proper -

Your Honours, that is the way in which the power to

make orders is there expressed. There is also a

power to make orders conferred by section 34(1)

which Your .Honours will see at page 30.	It says
that:

The Court has power, in relation to matters in

which it has jurisdiction, to make orders of

such kinds ..... as the Court considers

appropriate.

As we submit in paragraph 6 of our submissions, the

power to make orders under those provisions is not limited except by two broad considerations. First of all, they are limitations inherent in the nature

of the matter with which the court is dealing;

secondly, the requirements of the exercise of

judicial power or judicial discretion.

Your Honours, the ambit of the equivalent

power in the provisions governing the exercise of

jurisdiction by the Federal Court was dealt with by

the court in Jackson v Sterling Industries Ltd,

162 CLR 612 - - -

BRENNAN J: Before we get to that, what is the nature of the

subject-matter which provides the limitation in

this area?

MR JACKSON:  If I could go first to section 64(l)(c),

Your Honour will see that the way in which it is

there expressed, it is at page 73, Your Honour, in

such order in respect of those matters. The

matters to which reference is there being made

appears to be relevantly in proceedings in relation

to the welfare of the child. So, it is an order in

respect of the matter.

BRENNAN J:  We got to a stage, as I understand it, in your

the power of parents and that the welfare

argument which says that it is established by beyond

jurisdiction lies within the gift of the parliament

to the Family Court. And, we have an Act now which

says in respect of these matters, which include the

need to protect the child, et cetera. Is there

P(2) 76 3/2/94

any, and if so what, limitation relevant to the

present case in the subject-matter?

MR JACKSON:  Your Honour, it depends a little, if I could

put it this way, upon the views taken as to the, if

I could put it, the outer limits of the powers

which lie ultimately to fund or to found the point

at which we are. What I mean by that is that if

one looks to the marriage power and also to

section Sl(xxii) then there is, of course, a

question about the interaction of the powers under

those provisions and also the powers - I am sorry -
the interaction of laws made under those powers

with such things as criminal laws of the States.	I
mean, one might have a different answer given to
the ambit of constitutional power in relation to the question whether the marriage power permitted the release from prison of a child convicted of
murder, albeit a child of a marriage, and on the
other hand, the question whether a State law of the kind presently in question, inherently related to
the personal welfare, by that I mean the personal
health and well-being of the child, whether one was
and one was not the subject of the power.

Your Honours, the cases dealing with the

marriage power indicate, of course, that there will
be the interaction and the potential conflict

between provisions of the two kinds. Where I am seeking to get to the question of the particular case, it is difficult to express a particular

limitation upon it except to recognize, as the

cases do, that there will be cases that are within

and cases that are without the power.

But the point I would seek to make about it,

Your Honour, is that in cases of this kind where

one is dealing with the personal health of the

child in relation to a matter, and the question

being whether the child should or should not

undergo a particular operation for her physical and

mental well-being, and it being something that her	parents are not themselves able to authorize under
their powers as parents in respect of children of a marriage, that in relation to a matter where the
Family Court, one is assuming, has jurisdiction to
do it, then in those circumstances the only
limitations are relevantly those which one might
treat as covered by the concepts of appropriate and
proper.

TOOHEY J:  Mr Jackson, I just have some trouble reading

section 64(1). The matters that are referred to in

the various lettered paragraphs are not power

conferring paragraphs; they are simply matters to

which the court shall have regard and take into

account. Then you get to paragraph (c) which says:

P(2) 77 3/2/94

subject to paragraphs {a), (b), (ba) and (bb),

the court may make such order in respect of

those matters as it consider3 proper - What are "those matters"?

MR JACKSON: Well, Your Honour, "those matters" - - -

TOOHEY J:  You go back, for instance, to "custody,

guardianship or welfare" in the beginning of

subsection (1) or what do you do?

MR JACKSON:  I am sorry, Your Honour, I just missed the last

thing Your Honour said to me there.

TOOHEY J:  I said to you are the matters which paragraph (c)

speaks of, simply "custody, guardianship or

welfare", appearing at the beginning of
subsection (1) or is it simply circular, is it just

taking you back to the other paragraphs?

MR JACKSON:  Your Honour, one really starts in a sense from

section 63. Subsection (1) gives jurisdiction to

the Family Court in relation to matters arising

under this part. Now, Your Honour may recall this

is a matter that was agitated at some length in

Marion's Case and some comments were made upon the

defectiveness, in one sense, of the drafting in not

being as explicit as it might but, Your Honour,

what then appears is that if one goes to

section 64, it contemplates that matters that will

be dealt with will be matters referred to in the

opening words of section 64(1).

Now, Your Honour, it is true, of course, that

it does so in a relatively abbreviated form and,

Your Honour, that is why one saw in argument in

Marion - I do not wish to go back to the argument

except to the extent necessary, of course, but the
question which arose there and which the Court

resolved in favour of the existence of

jurisdiction, was whether this was not a case

similar to that obtaining in - and Your Honour, the

name of the case eludes me fully at the moment, but

it is the Newtown Building Society case - - -

McHUGH J: Peacock.

MR JACKSON:  Yes, Your Honour, Peacock v Newtown

Marrickville and General Co-op, in which there was

reference made to the fact that provisions that, in

effect, do no more in terms than give power to make

an order, contemplate the existence of jurisdiction

with respect to the conditions that must exist

before the order can be made, and I refer to

Chief Justice Dixon's observations in that case.

Now, Your Honour, in Marion's Case there is a

P(2) 3/2/94

referen~e to the fact that the provisions, though
tersely expressed, do have the effect of conferring

the jurisdiction in relation to those matters.

TOOHEY J: Yes, thank you.

MR JACKSON:  I will give Your Honour a reference to that

later if I can find it quickly. Your Honour will

see in the relevant footnote a reference to the

fact that other provisions were referred to, but it

was not necessary for the Court to decide upon

them. The Court held, I think, that section 64 had

the effect of conferring jurisdiction as well as

regulating the manner of its exercise.

If I could go then to Jackson v Sterling Industries, 162 CLR 612, in a number of passages

members of the Court dealt with the provisions of

section 23 of the Federal Court of Australia Act

which appears first at page 620. One can see it in

Your Honour Justice Brennan's reasons for

judgment - it is there set out and it is in the

same terms as the provisions of section 34(1) in

the present case and not in substance different, in

our submission, from the effect of

section 64(l)(c).

If one goes to the reasons first at page 616,

the question ultimately involved was the power of

the Federal Court to grant Mareva injunctions,

Your Honours will see at page 616 in Your Honour

the Chief Justice's reasons in the paragraph

commencing, "Here the issue was", Your Honour said:

I do not regard the making of the orders as

transcending such jurisdictional limits -

et cetera. Then at page 619 in the joint judgment

of Justice Wilson and Your Honour Justice Dawson

about half-way down the page:

The power given bys 23 is expressly limited

to the making of orders in relation to matters

in which the Court has jurisdiction.

Your Honours, those passages are in a sense repeating the words of the section, of course.

Then Your Honour Justice Brennan at the bottom of

page 620:

such powers as are necessary or incidental to

the exercise of that Court's jurisdiction -

It is not at large. It -

P(2) 79 3/2/94

does not extend beyond the grant of remedies

appropriate to the protection and enforcement

of the right or subject-matter in issue.

And at page 623, Your Honour Justice DeanP., about

two-thirds of the way down the page referred to

section 45(1). Perhaps I should say if one goes to

page 622 there is the introductory matter by

Your Honour in the first two paragraphs of

Your Honour's reasons for judgment.	Then at
page 623 half-way down the page:

The general power ..... part of the armoury of a
court of law and equity to prevent the abuse

or frustration of its process -

and the power to grant such relief fell within

section 23.	Your Honour said after quoting
section 23:

Indeed, in the absence of the provisions of

s 23, the Federal Court would have possessed

power to make such orders ..... as an incident

of the general grant to it as a superior court

of law and equity.

Now, Your Honour, if you goes to page 631,

Your Honour Justice Toohey, about three-quarters of

the way down the page:

Section 23 should be read according to its

language and it is apparent that, where

jurisdiction exists, the section confers a

wide range of powers.

Now, Your Honours, at page 632, Your Honour

Justice Toohey, in the paragraph commencing "That

statement", said halfway through the paragraph:

The effect of s 23 is to equip the Federal

Court with powers arising expressly or by

implication ..... and with powers that are

incidental and necessary to the exercise of

the jurisdiction conferred -

et cetera. And Your Honour, a little further down,

adopted what had been said by Sir Justice Ellicott

in another case:

More generally, the section gives to the

Federal Court "the powers necessary for it to

do justice in exercising the judicial power of

the Commonwealth in matters over which it has

jurisdiction".

Your Honours, page 639, at the bottom of the page,

Your Honour Justice Gaudron, and Your Honour

P(2) 80 3/2/94

referred to sQch matter~ at the top of the next

page as being:  ·

an aspect of what would, statutory authority

aside, commonly be identified as inherent

power.

And then Your Honours, at page 641 at the paragraph commencing half-way down the page "In these

circumstances" and going over to the top of the

next page.

Your Honours, of course there are limitations

upon the power, depending on what subject is being

dealt with. The power is generally expressed but,

Your Honours, if one is looking to circumstances

where what is involved is, as we submit in

paragraph 7 of our outline of submissions, the

welfare of the child, the orders must vary from

case to case. The view of what is appropriate or

proper must vary and, indeed, Your Honours, the
orders may be in particular cases supervisory only,

but that is not the limit of the power, in our

submission.

DAWSON J:  One thing you can say is that it does not give

power to the Family Court to, as it were, issue

orders which were in the form of legislation for

the welfare of the particular child - - -

MR JACKSON: Well, Your Honour, that is undoubtedly

DAWSON J: Let me put it this way, the limit which you

accept is, in the end, the constitutional limit,
and that is, of course, the limitation of marriage

but if in relation to the welfare of the child

there is State legislation ultimately to displace

that, you have to show an inconsistency.

MR JACKSON:	Yes, Your Honour, yes.
DAWSON J: But, the fact that the legislation is there has

to be contrasted to the fact that all that the

Court can do is make an order, and make an order in

the existing circumstances, which may be the

circumstances including the State legislation.

MR JACKSON: Well, indeed, Your Honour, but

DAWSON J: Because the State does have part in legislature

with respect to the welfare of the child.

MR JACKSON: 

Yes, it has got concurrent power, and the

concurrent power is one that, if exercised, of
course - - -

DAWSON J: It is not concurrent power.

P(2) 81 3/2/94

MR JACKSON:	I am sorry, Your Honour, it - - -
DAWSON J:	The Commonwealth has power to legislate with

respect to marriage.

MR JACKSON:  And section Sl(xxii), Your Honour.

DAWSON J: Well, I do not know nowadays that anyone says

that what is contained in (xxii) has not been

embraced by (xxi).

MR JACKSON: Well, Your Honour, it is possible that there

are circumstances in which section Sl(xxii) gives a

wider practical effect, if I can put it that way -

covers a range of circumstances that might not be

covered by the marriage power. Now, Your Honours,

what I mean by that is that it might be possible to

say that in some circumstances particular

legislation which dealt with the position of
children was something that really had no

relationship with as being a law with respect to

marriage, marriage considered as a relatively broad

concept in relation to its effect in its incidence.

But, Your Honour, it is possible - I do not say it necessarily is the cases - there are

circumstances which, by reason of, for example, the

dissolution of marriage and the fact that the

children of the marriage no longer have two married

parents, that in those circumstances there are some

events which occur in consequence of that which put

the children, in a sense, a little bit more at

risk, a little bit more in a difficult situation

and make it appropriate for there to be legislation

which deals with their situation which might

perhaps not be appropriate in circumstances where

it had not occurred. Your Honour, it is difficult

to put a finger on it. All I am seeking to say is

that whilst one may, very largely, cover the other,

it may not do so entirely.

DAWSON J: It still does not go to welfare, it is custody

and maintenance, is it not?

MR JACKSON: Still custody and guardianship, I think,

Your Honour, yes.

DAWSON J: Whatever the words are.

MR JACKSON:  Yes, but, Your Honour, of course, if one is

talking about a law with respect to guardianship,

for example, and once one makes the assumption that

one of the limitations, under the general law, upon

the powers of the guardian is a limitation which

does not permit the guardian to consent to

operations of this kind, then we would submit there

is no special reason why a law with respect to

P(2) 82 3/2/94

guardianship of children in that regard might not

be a law which confers upon a court, be it a

Commonwealth court, Federal Court or a State court

invested with federal jurisdiction, the power to consent, it is with respect to guardianship. It

may not be included within the common law

definition of guardianship.

So that, Your Honour, one of the central

points, really, of Marion, was to decide what the
powers of the guardian were: could the guardian
consent to an operation? The Court's answer, by a

majority, was "No". So that that is a limitation

on guardianship and there is no reason, in our

submission, why a law of the Commonwealth could not

supply the matter necessary to take care of the

deficiency, if I can put it that way.

BRENNAN J:  Does your proposition go as far as this,

Mr Jackson, that given a relevant head of

Commonwealth power, Parliament may confer upon a

Federal Court jurisdiction to make whatever order

it may think appropriate for a general purpose

within that power and that the power thus conferred

authorizes the court to make an order which

overrides any State law?

MR JACKSON:  Your Honour, I would answer the result of the

proposition as yes; the way in which Your Honour puts it I would not, with respect, agree with it

entirely. The reason for putting it in that way is

that if one first makes the assumption that there

is a relevant head of power and within that head of
power is a particular subject-matter then,

Your Honour, there is, prima facie, no limitation upon the ambit of the Parliament to legislate with

respect to that subject-matter. There may be other

limitations in the Constitution, section 92 and so

on, but leaving that aside. Now, Your Honours,

that being so, it is clear that matters arising in

relation to that subject-matter or by reason of the

existence of that subject-matter, matters within

the terms of Chapter III, may be the subject of the

conferral of jurisdiction in one of the modes

permitted by section 71 and I think in section 77.

Now, Your Honours, that being so, it then

becomes a question of the ambit of the power

conferred on the court in relation to the matter

and Your Honour, assuming that the power so

conferred is one which permits orders to be made which fall within the ambit of resolution of the matter, then, Your Honours, the result may be that

so far as State laws are concerned, the operation

of the Act conferring the power to make the order

results in there being an inconsistency and so in

those circumstances it is right to say that the

P(2) 83 3/2/94

order has had.the effect of taking away the effect
of State law, but that is by reason of
inconsistency; it is not the order of its own

force, it is section 109.

BRENNAN J:  It seems to me that the implication of what you

say is that provided the area of discretionary and purported judicial power can be linked in some way

which is sufficient to characterize the

subject-matter of the jurisdiction as lying within
federal power, you have conferred upon federal

courts a jurisdiction to override State laws. For

example, if a court were given jurisdiction to make

such order as it sees fit to ensure that interstate

trade and commerce were facilitated to the maximum extent, would t.hat law not 1 ie within section 51 ( i)

and would it not in an authorized court to make

orders which would have the effect of overriding

any contrary State law?

MR JACKSON:	Your Honour, the answer to the first of those things would probably be yes, and there may be some
fiddle in the drafting, but assuming one were to do
it. The difficulty with it, Your Honour, would not
be conceptually, in our submission, the second
thing Your Honour put to me, because if the law is otherwise valid, that is when two things operate: the first - and I am putting it perhaps in the wrong order - is that the Constitution operates to validate the making of the statute which confers the power to make the order and that has the effect
given by section 109 upon State laws. Your Honour,
that that should be so is really not a very
surprising thing, because if one looks - and
Your Honours I perhaps go unduly often to it but -
at section 5 of the Constitution Act, that is the very thing it says and Your Honours will see that the words it uses are:

This Act, and all laws made by the Parliament

under the Constitution, shall be binding on

the courts, judges, and people of every State

and of every part of the Commonwealth,
notwithstanding anything in the laws of any

State.

So that, Your Honour, one recognizes, of course, as a matter of practicality and as a matter of

legislative form, that most often Commonwealth

legislation will operate in a way that makes clear
perhaps the extent to which there is or is not to

be a conflict with State laws; one recognizes that

very often Commonwealth legislation will specify

particularly its effect.

Now, Your Honour, if one goes to the Botany Municipal Council case - the set of two - the

P(2) 84 3/2/94

second runway case of a couple years ago, the

legislation in that case perhaps went close to the

perhaps not permitted class of legislation about

State powers. But" it indicated, and the Court held

it to be valid, what its effect was to be on State

laws, and Your Honour may recall that some of the

provisions in it were provisions dealing, in

effect, with jurisdiction. But, Your Honour, it

must inevitably follow, if I could say so with

respect, that the Commonwealth law sufficiently

broadly drafted but if valid, if otherwise valid,

will have that effect. I mean most often, of

course, for the purpose of ensuring that there is

not as there could be a kind of lacuna or chaos,

that it will not happen, but it is possible.

BRENNAN J: One wonders whether an appropriate method of

construction of Commonwealth law which did not
otherwise expressly authorize the making of

inconsistent orders is to construe it as conferring

power to make orders which are consistent only with

State and federal law.

MR JACKSON:  Your Honour, that is, with respect, the

Engineers' case.

BRENNAN J: No, the Engineers' case is not judicial power.

MR JACKSON:  Your Honour, judicial power relevantly - there

is judicial power where the matter is something

arising under the Commonwealth statute, really

takes its nature from the statute itself. Now

there are two aspects to it, of course. One is the

fact that under Chapter III jurisdiction has to be

conferred in relation to two matters. But the

nature of the matter itself, relevantly speaking,

is a matter arising under a law of the

Commonwealth. Now, Your Honour, if one assumes

that the law is a law which, in other terms, is

valid, then the question which arises is, "What is

the matter?".	Now, the matter is something arising
under that statute. It may be something that

conceptually is narrow, it may be broad. The forms

of order to be made may be forms of order which, in
their nature, apply in limited circumstances or in
general circumstances.

But having said all that, Your Honour, if they are orders that are appropriate to resolve the

matter, be it narrow or broad and, Your Honour,

there would seem no reason, with respect, why the

exercise of the power to do so is not a power which

is judicial, whatever might be the effect of the

statute conferring it, upon State laws.

DEANE J: A slightly narrower approach might be to assume

against a legislative intent to authorize a court

P(2) 85 3/2/94

or to empower a court to authorize conduct which is

criminal under the ordinary criminal law of the

State or Territory or of the Commonwealth, if

necessary.

MR JACKSON:  Yes. What Your Honour puts to me is correct.

I was seeking to say that, though imperfectly,

before by saying that ordinarily speaking one would

expect to find, if there were to be a substantial

interference with State laws, a provision which

said that, which made it clear that that was to be

the case. But in the end it is no doubt a question

of construction. But, Your Honour, if one is

speaking about ordinary criminal laws in this

sense, one ·has to bear in mind really, I suppose,

two things. The first is that the ordinary - it is

easy enough to imagine a process of construction

which involves there being a reading down or an

assumption that federal legislation is not intended

to deal with the ordinary criminal law in

circumstances where one is speaking of what might

be regarded as traditional offences or their

equivalents: murder, rape, arson and so on.

On the other hand, where the criminal law in question is not the ordinary criminal law in that

sense but is particular State law dealing with

particular things such as the law in question here,
dealing with a particular subject-matter and where

the subject-matter is one which is capable of being

covered and capable of being covered in no very

bizarre or elaborate way by the subject-matter of
the federal jurisdiction, then one would think - it

is not so easy to draw the inference, Your Honour.

DEANE J: Except - and I do not want to take time - must not

one here focus not on the provisions for consent by

the board but on the unqualified prohibition under
criminal sanction of what I would loosely call

non-therapeutic procedures involving sterilization.

When one does that, what is the difference as a

matter of theory, though one could obviously see

the great difference as a matter of practice,
between empowering the Family Court to authorize a
non-therapeutic procedure and, for example, saying

that the powers of the Family Court govern or

extend to authorizing the supply of heroin to a
child of a marriage who is addicted to heroin in

circumstances where the Family Court, no doubt

reasonably, thinks that a limited supply of heroin

would be in the interests of the welfare of the

child?

MR JACKSON:  Your Honour, all I can say in relation to that

is that that really is why I was seeking to say
that there are some areas - and views on these

matters do change from - - -

P(2) 86 3/2/94

DEANE J:  Mr Jackson, can I just complete what I was saying.

Assume what I am putting to you is not by way of

questioning of Commonwealth power. It is only

directed to construction o[ this Act.

MR JACKSON: 

Yes. Well, Your Honour, what I would seek to

say in relation to that is this: the views as to
the things that can constitute the welfare of a
child are capable of varying from time to time, and

have in fact, through history - and relatively

recent history. That is the first general tt~ng I
say.

The second thing is that views as to the inherent criminality of some kinds of conduct have

changed from time to time.  Your Honour, at the

moment one would think that the supply of heroin is

something that could never be regarded as being

that, but one sees other views expressed.

Your Honour, so far as the question of

construction is concerned - that is why I was
seeking to say that if one were looking at it at

present, one could say that there are things such

as - perhaps if I could just say murder and arson -

because views change. Views have changed about the

relative criminality of various kinds of sexual

assault.  One could not, we would submit, at the

moment say that a law of that kind would be one

that one could ever regard as being for the welfare
of a child. Again, like cutting off the hand to
allow begging, and I can pick up what the Court

said.

But having said that as a matter of

construction, views may well change. The concept of welfare does itself have a somewhat ambulatory

aspect.

DEANE J:  I follow the way you put it, thank you.

MR JACKSON:  Your Honours, might I move at this point to a

slightly different matter. I want to say something

about the proposition that the parens patriae

jurisdiction does not extend to making orders

which, if I could use the flourish in the sense of

some of our learned friends, does not extend to the

making of orders which dispense with the general

law or perhaps the criminal law, if I could put it

slightly differently from the way in which I have

put it so far.

Your Honours, that issue is one which needs to

be looked at first of all from the point of view of

laws in a unitary system of government, and

secondly from the point of view of laws in a

federation.

P(2) 87 3/2/94

Where there is a unitary system the question

can be classified -in a number of ways. It may be

described as an issue going to the jurisdiction of the court, it may be described as a question going to the power of the court within jurisdiction, it

may be described perhaps as a question going to the
manner of exercise of jurisdiction and the cases to

which reference has been made do not always make it

apparent quite what is being said in that regard.

But in the end, in our submission, the question

must simply be whether the statute in question, the

statutory provision in question is one which is

intended to operate in all cases. Your Honours,

that must be a question of construction of the
statute.

Your Honours, it would be surprising in the

ordinary course of events if, as a result of that
process of construction, the result were not

normally that the statute would apply, and it would

be unusual if it did not or for the other result to
be arrived at for a number of reasons, or perhaps,

Your Honours, for the same reason expressed in a

number of ways.

One of the reasons is that, prima facie, statutes are intended to change the general law,

including the general law conferring parens patriae

jurisdiction and, Your Honours, if there is to be

an exception to that operation of the statute one

would ordinarily expect the statute to say so

specifically.

Your Honours, the second thing is that the

statutes in question would ordinarily be dealing

with a relatively specific subject-matter and,

Your Honours, it would be strange to have an

exception created by a law of general application

particularly an unwritten law. Your Honours, I do

not think that I put that terribly clearly. What I

am seeking to say is this: the statute which - the

contention would be might be capable of being

dispensed with would be one, ordinarily speaking,
dealing with a specific, or a relatively specific,

subject-matter.

In the ordinary course of events it would be

odd to have an exception to its operation created

by a law of general application, particularly where

the law of general application was an unwritten law

such as the general parens patriae jurisdiction.

Your Honours, those are the reasons why, in broad

terms, in a unitary system one would be surprised
to see that the parens patriae jurisdiction

extended, in the absence of specific statutory

provision, to dispensing with compliance with the

terms of the statute.

P(2) 88 3/2/94

Your Honours, could I go then to the position in a Federation and, of course, there are several

possible situations. What I submitted a moment ago

would also apply in relation to the exercise of

power where a court of one polity in the Federation

is exercising the jurisdiction and the question

which arises is whether a statute of that

jurisdiction should apply. That situation,

Your Honours, would arise where, for example, a

court exercising federal jurisdiction was - the

question was whether Commonwealth statute applied

to reduce the ambit of the parens patriae

jurisdiction.

A similar situation would apply in relation to the States where State jurisdiction was being

exercised and the relevant statute was a State

statute. But the same considerations,

Your Honours, do not apply in relation to cases where a Federal Court is exercising under federal

law a jurisdiction and where the law, the

application of which is in question, is a State law

because the ambit of the federal jurisdiction must

in the end be determined by considerations derived

from the Commonwealth enactment and the ambit of

the powers is not limited, in our submission, by

whatever may be the statute law or the common law

of any State.

Your Honours, the construction of a federal

law conferring a jurisdiction and the powers

conferred by it do not, in our submission, vary

way as to do it but, in the ordinary course of

from State to State or from time to time depending

on what laws the States choose to enact. A

events, a law expressed in general terms would not

abate or enlarge by reference to the laws of the

States from time to time.

DAWSON J: The power which is given under a law may. Parens

patriae jurisdiction is not exercised in a vacuum

and if there are laws relating to a child in the

exercise of a State power in respect of which the

Commonwealth would have no power, then those laws

apply.

MR JACKSON:  Your Honour, can I say two things about that.

If one makes the assumption that the Commonwealth

would not have jurisdiction, then what Your Honour

puts to me may well be right. But if one is

talking about a matter that is itself within

Commonwealth power and the Commonwealth has

legislated in relation to that, then it ultimately

becomes a question of construction whether the

exercise of power was intended to be one which

operated of its own terms with State laws which

P(2) 89 3/2/94

conflicted with it, being ones which in the end

were invalid.

DAWSON J: That is the question, whether there is a

conflict.

MR JACKSON:  Your Honour, I accept that. If there is no

conflict, there is perhaps no issue.

BRENNAN J: Absent any express or implied inconsistency

between the law which creates the jurisdiction and

the State law and postulating a discretionary power

being vested by that Commonwealth law in a court,

why is it that the law should not be construed as
requiring the exercise of the discretion having

regard to the existing State laws?

MR JACKSON:  Your Honour, if one posits the question in that

way, what Your Honour puts to me would be the

answer. However, that does involve, as one of the

steps leading to it, the fact that one takes the

view as to the ambit of the discretion. What

Your Honour puts to me does contain, within itself,

a positing of the ambit of the discretion in a

particular way. Now, if one had merely a general

discretion - and one cannot speak of the
discretion, Your Honour, intelligibly, with

respect, without reference to subject-matter - if

one has merely the general discretion then what

Your Honour puts to me is right.

But, Your Honour, it is possible, of course,

to speak entirely in the abstract but what one

cannot do, we would submit, is to remove from

consideration of the ambit of judicial discretion

the fact that the discretion arises in relation to

a matter. One identifies the matter, one

identifies then the possible orders that may be

made in relation to it. Within that, of course, it
may be that discretions expressed in broad terms,

of their very nature, are ones which are, by the

manner of their exercise, ones which have an effect

to invalidate, effectively by the operation of
section 109, the State laws.

If one assumes for the moment the validity of the law in the present case it speaks about the

exercise of power under it. What one has is a

situation where at the heartland, let us assume, is

the question of the welfare of the child. At issue

relating to the welfare of the child is whether

there should or should not be an operation of this

kind. In relation to that, the Family Court has power to make such order as it considers proper.

Now, it may make an order. Let us assume that

that takes place. The order is one which operates

P(2) 90 3/2/94

prima facie throughout Australia, yet there is a

State law that says it cannot do that.

McHUGH J: Yes, but is not the problem the way the orders

are framed? If you look at paragraph 8 of vour
submissions and the orders that you framed, ·they
are all framed in a passive voice, but it does not

seem to me at the moment that that takes you far

enough. You would have to have an order framed in

the active voice, not merely an order that

identified the persons by whom the procedures might

be carried out, but an order that a particular

person was authorized.

MR JACKSON:	Your Honour, paragraph l0(b) - - -
McHUGH J:	I do not know that l0(b) goes far enough as well.

You say the procedures -

are to be carried out by particular persons.

Can the Family Law Court order a particular doctor

to carry out the operation?

MR JACKSON:  It could authorize the doctor. I mean, one

does run into a perhaps unresolved question about

the power leaving aside the civil conscription

question in relation to section Sl(xxiiiA).	One
does run into a perhaps somewhat unresolved

question about the extent to compel people to do

things. Your Honour, the question was answered by some members of the Court in Sea.men's Union v Utah

saying that the Commonwealth could.

McHUGH J: But this is a power vested in a court, and it is

a question of construction.	Under the welfare
power could the Family Court	order a particular
school to admit a child even	though it was in
breach of a public education	Act of a particular
State?

MR JACKSON:  The answer is probably not. One is on perhaps

the other side of the line.

McHUGH J: It seems to me, Mr Jackson, it is not sufficient

in this case for the Family Court to simply say

that the operation is authorized and it is

authorized to be carried out by a particular

doctor. It would have to go so far as to say that

a particular doctor was authorized to carry it out

before you could overcome the effect of section 35.

MR JACKSON:  Your Honour will see that what we said, for

example, in paragraph 9(b) was prefaced by the

words, "for example". I was speaking about the

types of orders that might be made, and the types

of orders that might be made are orders - and I

P(2) 91 3/2/94

will come on to this in just a moment - that could

be made anywhere in Australia. What I mean by that

is that although there may be a prohibition, let us

assume, which applies in New South Wales, to the

performance of an operation in New South Wales,

there would not seem any reason why the Family

Court, albeit sitting in New South Wales, could not

make such an order and the order would be effective

in, for example, Victoria or any of the other

States or here in the Australian Capital Territory.

It may well happen where the operation is carried

out. Your Honour, I hope I will not be tied

absolutely by the words used there, but that really

seems enough.

MCHUGH J:	No.
MR JACKSON:	Your Honour, could I come back to that in a moment? What I was going to say, Your Honours, is
that it does not also, if I could perhaps deal with
another aspect of the argument advanced by my
learned friend, the Solicitor-General for South
Australia, it really does not make any difference in the position, we would submit, if one tries to cut up or to subdivide State laws into particular parts, such as parent's consent or the position of
the surgeon, and so on, and the four stages that my
learned friend had.  Your Honours, the position
really is that if what - one looks to see what the Family Court has power to do and it has power, we
would submit, to do whatever is proper in relation
to the particular subject-matter.

Your Honour, the situation in that regard in

relation to the division of things into four stages is really analogous to what was said in relation to section 109 by Chief Justice Latham in

Colvin v Bradley Bros Pty Ltd, (1943) 68 CLR 151.

McHUGH J:  I must say, I had that case in mind when I was

thinking that you have got to really say that they

can authorize something before you get over the

State law.

MR JACKSON: Yes, Your Honour, I mean it is inherent in what

is involved and all that we really have to show, in

our submission, is that there is power in the

Family Court to authorize. If that is so, there is

an inevitable inconsistency.

McHUGH J: Well, yes.

MR JACKSON:	Your Honours, the point I was seeking to make was at page 158 in the judgment of
Chief Justice Latham where, commencing at about
eight lines down the page, he said:

P(2) 92 3/2/94

The application of_s. 109 does not depend upon

any assignm~nt of legislation to specific

categories -·

et cetera. He then dev~lops the proposition to say

and, Your Honours, this is a well known passage,

that it does not matter that the State law is

directed to, in effect, subject A, the Commonwealth

law to subject B, there may yet be inconsistency.

And, Your Honours, it does not really, in our

submission, in the end avail the argument against

us to say, "Well, one is dealing with the position

of the doctor, one is dealing with the position of

consent". Helpful to analyse, no doubt, but in the

end, Your Honours, it is inevitable in the nature

of things that the type of order being

contemplated, or the type of procedure being
contemplated, is one that involves, necessarily,

the position of the surgeon.

BRENNAN J:  Mr Jackson, that of course was - the case that

you just referred to is one dealing with the

arbitration power.	Why is it that the Commonwealth
exercise of judicial power within the framework of	in investing judicial power is not limited to the
the laws as existing prior to the making of any
judicial order? In other words, why is it that
judicial power, when invested, is not required,
perhaps pursuant to section 118, to apply State as
well as federal laws, and that an investiture of federal judicial power is so restricted unless the federal legislature, itself, creates the
inconsistency which engages section 109?

MR JACKSON:  Your Honour, section 109 applies to laws of the

States and laws of the Commonwealth. What is

required is that there be an inconsistency with a
law of the Commonwealth. It thus becomes a

question of what is the valid law of the

Commonwealth. Your Honour, if the law of the

Commonwealth is one, to take the simplest case,

that itself creates rights and obligations and, if

I could use, for example, section 87 of the Trade

Practices Act as a convenient one, in relation to

the rights and obligations created by the
substantive provisions of the Act, jurisdiction is

conferred to do various things including the

variation of documents and so on, one would think,

whatever be the State law.	I use that by way of
example.

Could I just say this, Your Honour, that if

one is looking to see what is the law giving rise

to the inconsistency, what one can see is that the

law is one which creates rights and obligations or

of its nature is one which allows particular

conduct to occur or prescribes that it shall not

P(2) 93 3/2/94

.kind. occur or deals with broad subject-matters of that

Having done that, one comes then to the

judiciary parts of the Constitution and one sees

that in relation to section 77, for example, it

says that:

With respect to any matter -

and the matter being relevantly a matter arising

under a law made by the Parliament -

the Parliament may make laws -

(i) Defining the jurisdiction of a federal

court -

Your Honour, defining the jurisdiction does not

carry with it only the question of saying how

little may be exercised. Defining includes

defining jurisdiction and powers, and that is to be

exercised with respect to any matter. That is what

section 77 says.

BRENNAN J:  I do not wish to delay you, but my question

really would have focused upon the jurisdiction.

In other words, jurisdiction does not extend and by nature cannot extend to the making of orders, the

making of which themselves produces an

inconsistency.

MR JACKSON:	Your Honour, with respect we would cavil, if I may, with that proposition because inherent in the
power to make laws under any of the topics in
section 51, we would submit whether it be contained within the power itself or whether it be something
which is a matter incidental to the execution of
that power under, say, section Sl(xxxix) must be, we would submit, the power to create remedies of
particular kinds and the power to create, for
example, particular forms of - remedies will do,
Your Honour, I think.
If one does that, there is no reason why laws which have that effect are not laws which are
themselves laws which in a sense are laws falling within section 76(ii). One has to look to the
subject-matter but the law also is something which
may by the exercise, we would submit, whether it be
section Sl(xxxix) or the power itself, it may be
something which defines a particular remedy. Those
remedies, Your Honour, do not necessarily have to
be tailored to State laws. They do not at all because the operation of the law as a valid law
must attract section 109.

P(2) 94 3/2/94

DAWSON J: That is presupposing there are identifiable

remedies. If a court is given power to make all

such laws as it thinks proper with respect to marriage then that must be construed as being

subject to the existing laws, and it cannot be a charter for a court to pull itself up by its own

bootstraps by making orders which are inconsistent

with, for instance, State laws and to say that it

has the benefit of section 109. That cannot be so.

MR JACKSON:  Your Honour, I do not know that I disagree with

the proposition Your Honour is putting to me in

that way, but the problem with it, Your

Honour - - -

DAWSON J: What it means is that if jurisdiction is

conferred in general terms then it, the

jurisdiction, must be construed as being

exercisable only in accordance with the law,

Commonwealth and State.

MR JACKSON:  Your Honour, broadly speaking, I do not know

that I disagree with the proposition Your Honour is

putting to me but, Your Honour, the operation of it

must take some meaning from the particular

subject-matter. Now, Your Honour, if it be that

the subject-matter is one like the subject-matter
presently in question, which is within the concept

of the welfare of the child of a marriage then,

Your Honour, it is not very surprising that an

order made could have effect notwithstanding the
operation, or the operation that a State law would

otherwise have were it not for the application for

section 109. In other cases - - -

McHUGH J: But, Mr Jackson, it is a question really of what

the legislature's intention is in respect of this

particular statute and not a question of the extent

of the constitutional power, and the legislation

has got to be construed against the background that

the orders will operate in a system of rules, of
common law, of equity, and of State laws.	Now, in

the absence of a clear legislative intention surely

you would not construe a general power such as is

conferred by section 64(l)(c) or section 34 as
authorizing breaches of the body of State law, for
example, authorizing torts, authorizing the

commission of crimes, authorizing the breaches of

statutes, and so is it not a question of

construction, how you construe this general power?

MR JACKSON:  Your Honour, I do not know that I disagree with

the result Your Honour is putting to me, but that

is where, Your Honour, one does come to what I

suppose is in the end the critical question. Now,

in Marion's Case the Court held that the ambit of

the power extended to authorizing the carrying out

P(2) 95 3/2/94

of these operations. Now, that then becomes a question, Your Honour, whether, as a matter of construction, the Parliament - by that I mean the

Parliament of the Commonwealth - intended that the

law have an operation that worked in some

jurisdictions and did not work in others.	In other
words - - -

McHUGH J: But, may it not lead to the result in this case

that although there is power to authorize the

operation, and even to identify the doctors who are

to carry it out, nevertheless the power conferred

on the Court is not so extensive that it would

enable the Court to authorize something to be done

contrary to a prohibition of State law, of a

particular State law?

MR JACKSON:  Your Honour, could I just say in relation to

that, that if the power extends to authorize it to

be carried out, one asks really why an order

conferring that authority might not also be an
order that does all things necessary, all things

that were proper, to effectuate it. And the order

is one that would authorize the carrying out of the

operation by the doctor. Your Honour, inevitably

the State law that says the doctor cannot conflicts

with that, and that is where, in our submission,

there is an inconsistency ultimately with the

Family Law Act

McHUGH J: There is the anterior question before you get to

the inconsistency, and that is whether or not the Parliament intended the general power to reach so

far that it would authorize something which would

constitute a breach of a State prohibition.

MR JACKSON:  Your Honour, could I just say this: perhaps a

good starting point really is to look at

section 64(l)(a) and it says, to use relatively

traditional words:

the court must regard the welfare of the child

as the paramount consideration;

Now, if the welfare of the child is something that

requires the operation to be carried out or the
operation not to be carried out, whichever it might_
be, it does not matter very much, but if it does
that, then, and the court takes into account the
matters referred to in the other subparagraphs, and

then says:

the court may make such order in respect of

those matters as it considers proper -

Your Honour, we would submit, with respect, there

is absolutely no reason why the order that might be

P(2) 96 3/2/94

made pursuant to that would not be an order that

effectuated what the court had said and what the

court's decision was. I do not know if I can take

it beyond that, but that is what we would submit.

If I could come for a moment then to

paragraph 8 of our written submissions. What we submit is that the possible orders that might be

made by the Family Court are - there are various

orders that might be made. Your Honour, if the

court were to make orders in effect in favour of

the carrying out of the operation, there is not, in

our submission, any particular reason why it might

not make an order which identified the procedures,

the persons by whom it might be carried out and

where and when it might be carried out. Equally,

the court might take the view that in the interest
of the welfare of the child no sterilization should

take place anywhere in Australia, for example, or

anywhere at all.

Your Honours, we would submit that it surely

has power to give effect to that view and the

expression of the view that should not occur itself

would seem to be inconsistent with the power of

another body to purport to grant consent to it

happening.

DEANE J: But that is a different area, is it not, in that I

have difficulty in seeing an argument that the

Family Court, for example, does not have authority

to make a declaration that the carrying out of the

operation would be in the interests of the welfare

of the child. It does not follow that it has power

or jurisdiction to make an order authorizing to do

something which is made criminal under the law of

the State in which it is to be done. But if you

accept that there is a distinction there, the

Family Law Court would be perfectly entitled, on

that approach, to make a declaration that it was

out, because all the State Act does is to prohibit against the welfare of the child for the procedure to be carried out and to prevent it being carried the procedure subject to a modification of the
procedure in the event of a State consent.

MR JACKSON:  Your Honour, in relation to saying no

sterilization can occur, it is in a sense a more

complicated thing. But, Your Honour, if one says

that the, to take the words of section 64 if I can

go back there for just a moment, Your Honours, they

are "proceedings in relation to", let us assume,

"the welfare of" the child.

Now, the question so far as the welfare of the

child is concerned is, to put it at the core,

whether the operation should or should not go

P(2) 97 3/2/94

ahead. And, Your Honours, in those proceedings,

the court has to,regard the welfare as the

paramount consideration. Having done that, it may

then make some o~der, such order in respect of it

as the court thinks proper, or to use section 34,

appropriate.

Your Honours, there is, in our submission, no

reason at all why the court's power in that regard

should be, in effect, cut off at the pass. The

words of section 64(l)(c) do not suggest that nor

do the words of the other provision to which I

referred. And, Your Honours, could I in that

regard refer, without taking the Court to the

particular passages, to the statement set out in

paragraph 9 of our outline of submissions, to the

fact that in effect the two statutory provisions to

which I have referred reflect the notion one sees

Fencott v Muller Stack v
in the judgments in and jurisdiction carries with it the power to do all

things necessary to determine conclusively the

issue in controversy which attracts it. Now those

observations were made, of course, in the context

of the question of the ability to confer

jurisdiction to deal with associated matters and so

on, but the proposition is broadly stated and,

Your Honours, there is nothing, in our submission, in the terms of section 64(l)(c) which would detract from that broad proposition.

DAWSON J: But you leave something out.

MR JACKSON:	I am sorry, Your Honour.
DAWSON J:	It is the power to do all things necessary in

accordance with the law to determine conclusively

the issue.

MR JACKSON:  Of course, Your Honour.

DAWSON J: And if the State law is part of the law that is

it. Your argument is circular.

MR JACKSON:  Your Honour, could I just say, with respect,

that to bring in the State law in the first place,

we would submit, with respect, involves an

assumption as to the construction -

DAWSON J: It is not a matter of bringing it in, it is

there. What you are trying to do is to put it out

by an inconsistency between the order and the law.

MR JACKSON:	It is there if there is no inconsistency.
DAWSON J:	The inconsistency you are pointing to or would

point to is with the order.

P(2) 98 3/2/94

MR JACKSON:  Your Honour, if the order is within the power

conferred by the Act - - -

DAWSON J: That is where it is circular.

MR JACKSON: That, with respect, we would submit, is clear.

If it were not it would be a very strange thing if one had circumstances where powers could be

exercised pursuant to statute, the statute prima

facie being valid, the exercise of power being

intra vires the powers conferred by the statute,

yet the order or exercise of power having no effect

upon State law would give inconsistency no meaning,

really, with respect, Your Honour.

DEANE J:  I could not follow why earlier you assented to the

proposition that an order of a court made pursuant

to a Commonwealth law was not a law of the

Commonwealth for the purposes of section 109 of the

Constitution.

MR JACKSON:  Your Honour, I put it in that way, perhaps

imperfectly. What I was seeking to say was that -

as I would understand the broad theory, it is this,

that section 109 speaks of laws, of course, laws of

the Commonwealth. The cases - I am sorry I cannot

give a reference immediately to one - seem to say

that if one looks at say an order or an arbitral

award or something of that kind, it is not itself

an order but the law which authorizes its making is

the relevant law. That is the reason why I put it

that way, Your Honour.

DEANE J: That may be one way of putting it, there are

contrary statements in the cases. Justice Toohey

pointed out to me that that is contrary to what

Chief Justice Latham said in Colvin, where he

treated laws and awards or orders made under them

as all attracting the protection of section 109.

MR JACKSON:

Your Honour, I should say in relation to that

that it may be that His Honour was using a

shorthand form because in the Conciliation and

Arbitration Act as it would have been at the time,

there was a statutory provision mirroring

section 109.

DEANE J: But if the law authorizes an award or an order,

the award or the order is an extension of the law.

MR JACKSON:  Yes. There may be a conceptual difference

between on the one hand things that are delegated

legislation or quasi legislative-like awards, and

on the other hand things that are orders of courts,

Your Honour.	But the effect of it does not matter
very much, in our submission.	They both have the
same result.

P(2) 99 3/2/94

DEANE J:  Mr Jackson, could I ask you one final thing, and

that is, am I correct thct it is common ground that

this case is not a 37(l)(a) or (b) case, or is that

just left an open question? It is obviously not a

37(1)(a) case. I had the impression that it was

not propounded as a 37(l)(b) case.

MR JACKSON:  You Honour, there is not at present the urgency

in terms of the statute, yes.

DEANE J: Well, to put it this way: it is not suggested for the sake of these proceedings that it is a 37(l)(b)

case?

MR JACKSON:  No, Your Honour. I just wish to add the caveat

that circumstances change, of course.

Could I come then to paragraph 10 of our

outline of submissions. Perhaps I do not need to

elaborate upon them much. The broad proposition we

seek to make is that there is a variety of orders

that the Family Court might make. It might make an

order which prohibited the carrying out of

procedures except upon terms set out in the order.

One could readily imagine circumstances where a

child of a marriage was not, in fact, living with either parent but was living in some kind of care

situation, and where the persons who were in charge

of the institution in which the child was kept took

the view then that this operation should occur.

There would seem no reason why the Family Court at

the instance of the parents, say, could not make an

order saying that there would be no such procedure

carried out, or no such procedure carried out

except upon particular specified terms.

There may be a dispute between parents as to

the operation which should be carried out where,

when, by whom and so on. That is something the

Family Court could decide, and what it could do

indirectly in the particular case, in our

submission, it could also do directly, and we refer

to that in paragraph l0(b) of our submissions.

I have dealt, perhaps excessively, with the

matters that are set out in paragraph 11 and I
shall not go over those. Could I turn then to the

terms of the Guardianship Act and I want to do so

essentially for two reasons: on the one hand to

indicate that what they contemplate is essentially

proceedings of the nature referred to in

section 63A(l) of the Family Court Act; and

in being in the Northern Territory in

secondly, to submit that the provisions of the those

Marion's Case.

P(2) 100 3/2/94

Your Honours, could I go then to the

Guardianship Act and take Your Honours first to

section 32(a) which is I think at page 12 of the

document which Your Honours have. As is apparent

from the terms of section 32(a), it works on the

assumption that treatment of the relevant kind

might be carried out lawfully with the consent of

the person upon whom it is to be carried out,

assuming that the person had the capacity to give

the consent. Of course operations of this kind

have been carried out very frequently in all

jurisdictions in respect of persons who are

themselves capable of giving consent.

That that is the underlying view of the Act

that the operation might be carried out lawfully if

consent were given by a person with capacity is

confirmed by section 46(1) - could I take

Your Honours to that - which deals with the effect

of consent. It says that the consent has effect:

(a) as if the patient had been capable of

giving consent to the carrying out of the

treatment; and

(b) as if the treatment had been carried out

with the patient's consent.

That it equates the position appears also in a

sense from section 47 at page 18 which then would

retain the liability of any person that would
obtain in the case of negligence in the carrying

out of the operation and so on.

BRENNAN J:	The word "necessary" is also in 32(a).
MR JACKSON:	Yes, Your Honour.
BRENNAN J:	So that is carried through to 46.

MR JACKSON:  I am sorry, I see the word. I am not sure what

Your Honour was meaning.

BRENNAN J: Whatever effect consent has to necessary medical

or dental treatment under 32(a), section 46(1)

provides for the same effect to be given to the
consent to "necessary" medical or dental treatment,

not to "any" medical or dental treatment.

MR JACKSON:  Your Honour, the first thing that I would say

about that is that one has to look, of course, to

section 32(a) as being an introductory provision,

and the second thing is that the meaning of the
term "necessary" does take its view of it from the

context in the sense that in the case of special

medical treatment, what is regarded by the

legislature as necessary one would think is,

P(2) 101 3/2/94

perhaps, more limited than might be granted under,

say, the Family Law Act provision.

BRENNAN J: Yes, in fact, "necessary" probably takes it

meaning from paragraph (b).

MR JACKSON:  To a degree, Your Honour, and also from the

restrictions upon the Guardianship Board's powers.

BRENNAN J: Yes.

MR JACKSON: But, Your Honour, the point I was seeking to

make about it was simply that what it does do is to

assume that the consent is necessary; that if one

has consent to necessary medical treatment then

that is sufficient and equates the consent to

consent that might be given by a person for it.

Your Honour, perhaps I should also say something in relation to the "necessary" part of it

and it is this, that there is nothing really, we

would submit, to displace the proposition that a

person who is capable of giving consent is able to

elect to have the operation whether necessary or

not, necessary in some absolute sense or not.

Part Vis dealing with persons who are under a

disability because they lack the capacity to

consent, and there is no doubt, and perhaps this is

what Your Honour is putting to me, that in respect

of those persons it seeks to say that only

operations necessary, as considered by the Act,

will be permitted. But, once that has been done,

then the order that is made is the same as consent.

I think it might given by the person.

Your Honour, that, in our submission, whether

one gives a particular meaning to "necessary" or

not, does not seem to be, we would submit,

relevantly different - and I say "relevantly

different", from what was said in Marion's case as

to the effect of the order, at pages 261 and 262 in

175 CLR.	The passage to which I wish to refer is
the last paragraph on page 261, going over to the

end of that paragraph on page 262, particularly

where it is said that:

An order from the Family Court can be
characterized as part of family law, and is

the doctrine of parental consent and, as such,

can be described as a substitute for personal

consent.

Your Honours, could I deal then with the

second aspect. The Constitution and procedures of

the board are set out in sections 49 to 76.

Your Honours, paragraph 12 of our outline of

submissions contains an inaccuracy. I think it

says 49 and 79, I think. It should be 49 to 76.

P(2) 102 3/2/94

If I could take Your Honours, and I do will so very

briefly, to the various provisions which deal with
the constitution.of the board, it is apparent, in

our submission, that the board is entertaining

proceedings dealing with applications for consent

of this kind and it is dealing with proceedings

that are proceedings effectively in a court.

In that regard, could I start with section 49

of the Act. Section 49(1) establishes this. It

commences at page 18. Section 49(1) establishes

the board. Your Honours will see the constitution

of the board in the next subsections. The persons to sit for exercising its functions are set out in

section 51(1). One of them must be a lawyer at any

time. Your Honours will see in section 53(1) the sittings of the- board. 53(2), proceedings before

the board. The heading in division 2 before

section 55 - Proceedings before the Board. Section

55(1) - "not bound by the rules of evidence". 56 -
Proceedings open to the public. 57(l)(b) -

"proceedings before the Board". Then, in the right

of appearance in section 58:

In any proceedings before the Board, the

parties to the proceedings may appear in

person or, by leave -

be legally represented. 58(2) - Power to appoint a

"guardian ad litem". 58(3) - in proceedings before it, if a person ought to be separately represented,

make various orders. Section 59 - the way in which

proceedings are to be conducted. "A party to

proceedings", and then Your Honours will see the

succeeding provisions. Section 60(1) - the power

to compel attendance and to administer oaths.

Section 61(1) and 61(2) - to compel answers to

questions. Your Honours, section 61(1) on its face

may add a new terror to those appearing before the

board, but it seems, no doubt, it would be read

down to apply only to witnesses and not, for

example, to those appearing. Section 63 -

allowances and expenses. Section 64 - the

provision about adjournments. Section 65 -

frivolous or vexatious proceedings. The power in

section 67, or the right of appeal to the

supreme court in section 67, and then section 68 -

decision of the board is to be in writing and so

on. Power to award costs - section 69. Record of

decision - section 71. Applications may be made to

the board pursuant to section 42(1) where, "any

person may apply".

Your Honours, what those provisions demonstrate, in our submission, is that the matters

which take place before the board notproceedings

and section 63A(l) of the Family Law Act, which

P(2) 103 3/2/94

appears to be-made pursuant to section 77(2) of the

Constitution says that:

Proceedings that may be instituted under

this Part shall not, after the commP-ncement of
this section, be instituted otherwise than

under this Part.

Your Honours, any proceedings of the kind

contemplated by the Guardianship Act in relation to

a child of a marriage, in our submission, would be

proceedings that could be brought before the
Family Court under the Act.

Could I say also, one other thing in relation to the matter a little more generally, and it is

something to which I adverted before in passing,

and it is this, that an order of the Family Court

will operate throughout Australia, as does its

jurisdiction, and the effect of the argument on the

other sides is that, in effect, something more than

the Family Court's order would be necessary in

order to enable the operation to be carried out in

New south Wales because of the laws of that State.

Your Honours, there seem to be no reason why,

accepting the arguments on behalf of New South

Wales, the Family Court sitting in that State could

not make orders of the kind necessary to permit the

operation to take place anywhere in Australia, such

as Victoria or the Australian Capital Territory.

Your Honours, the fact that an order may have

such an ambulatory effect, good in Victoria, no

good in New South Wales, all by reason of the

changes in State law from place to place, in our

submission, suggests that the better view is that

the State laws are not applicable by reason of

section 109.

Could I add one further thing in relation to

something I said yesterday, dealing with

section 60H of the Family Law Act, and it is simply

to give Your Honours some further material.

Your Honours will see, in relation to section 60H,

that it speaks of child welfare laws. That is a
term which is defined by section 60 at page 58 of
the pamphlet, and if I could just take Your Honours

to that. It:

means a law of a State or Territory

prescribed, or included in a class of laws of

a State or Territory prescribed, for the

purposes of this definition.

Your Honours, the relevant prescription is to

be found in regulation 12B of the Family Law

P(2) 104 3/2/94

Regulations. Could I give Your Honours copies of

that. Your Honours will see that regulation 12B(l)

includes the laws of the States, the mainland

Territories and Norfolk Island that:

relates to the imprisonment, detention or

residence of a child upon being dealt with for

a criminal offence -

as being -

"child welfare law".

Now, Your Honours, the second thing is that

regulation 12B(2) says that those laws include

laws:

specified in Column 2 of an item in Schedule 5 and Your Honours, the succeeding pages Your Honours should have a list of a large number of laws of the

various States, which are the laws in question.

Your Honours, those are our submissions.

MASON CJ: Thank you, Mr Jackson. Mr Solicitor for the

Commonwealth.

MR GRIFFITH:	If Your Honours please, we handed up our submissions last evening, but may I hand to
Your Honours also copies of the report of the
Family Law Council, October 1993, on Sterilization
and Other Medical Procedures on Children Discussion
Paper. I do not intend to take the Court in detail
to this document, but the Court will recollect at
page 253 in Marion the Court referred to the
somewhat unsatisfactory nature of court proceedings in applications in issues such as this sort and
referred to the clear need for legislative reform
and this Family Law Council discussion paper is
firstly very useful for describing the extent of
discusses the jurisdictional issues and refers, of the problem and to which such medical procedures have, in recent years, been applied, and also
course, to the other issues, the issues of human
rights, the dignity of the person. If I may
particularly refer the Court to the last part of
the report, beginning on page 35, "Who Should
Decide?" where the court outlines "options for
legisative reform", as it is put, discusses whether
there should be uniformity of law or not, whether it is best to have Specialist Tribunals or not, and
one can see on page 37, under the heading, "Who should legislate?", whether there should be
Commonwealth legislation alone, the need for uniformity, State legislation, combined
legislation.

P(2) 105 3/2/94

So that, with respect, the issue in this

matter is really one of power, rather than the

issue of what is the more appropriate procedure in

serious issues as to whether or not there should be

sterilization. But, of course, in Marion, what the

Court did determine was that it was a matter beyond

the mere consent of one or other of the parents as
to whether or not there should be sterilization in

circumstances of this sort and further that the

parens patriae power vested in the Family Court did

include the power to authorize, and we say the

corollary, to prohibit sterilization, and if by

"sterilization" I could be regarded as using that

term in the sense of the majority's judgment, it

will save repetitions of qualifications in my

references to that term.

So, in our submission, the effect of the decision of majority in Marion is to cause

section 64(1) of the Act to be read as if in

paragraph (c) there is a power in "the court to
make such order in respect of" we would introduce
"authorizing or prohibiting sterilization", in
respect of a child, as it thinks proper. I should

say at that stage we would submit, as was referred

to by Justice Toohey in a question to my learned

friend, Mr Jackson, that the reference back in
paragraph (c) to those matters is to welfare - in
respect of issues such of this sort it is respect

of welfare concerning the issue of sterilization of

an infant.

In respect of this issue of sterilization it is our submission that issues of construction and of the question of possible inconsistency with a

State law are to be regarded in the context that

this Court has already established, with respect,
that the issue of sterilization is a matter

specifically vested in the Family Court as part of

the parens patriae power.

Now, both my learned friends, Solicitors-

Generals for New South Wales and for South

Australia, in their contentions made reference to

the need to read down the parens patriae power by

reference to particular statutory powers. As to

that we would wish to adopt the submissions made by

my learned friend, Mr Jackson, making the

distinction between statutory power in a unitary State and the question of juxtaposition of a, we

submit, unlimited parens patriae power and the

operation of a State law. I should add,

incidentally and to avoid repetition, that I do

adopt generally as the submissions for the

Commonwealth the entirety of the submissions of my learned friend, Mr Jackson, and for the reason I

will seek merely to emphasize some particular

P(2) 106 3/2/94

matters rather than dealing with all issues as

comprehensively as my learned friend.

The content of the equivalent of the parens

patriae jurisdiction, in our submission, is not

reduced in an ambulatory way State by State, even

day by day. In the case of New South Wales the law

yesterday was different from the law on Monday. the second amendment to section 35(l)(a) had the effect that if it had not been introduced that the

jurisdiction would have remained within the State

court and been vested under the cross-vesting

legislation in the Family Law Court.

Our submission is that it is an unreasonable and, we submit, an untenable construction of the

vesting of this jurisdiction in the Family Law

Court to construe it as being subject to the

variations of existing State laws and to the

variations from time to time of those existing

State laws and, of course, State laws may be of

various sorts. They may provide a mechanism of

prohibition, as in the case of the New South Wales

law, within the context of a regulatory scheme for
consent.

My learned friend, Mr Doyle, said in answer to questions yesterday that the South Australian law

was very similar to section 35. He said that at

page 41 of the transcript. With respect, this is

stating the generality of the operation of the

South Australian law somewhat more strongly than is

the case. If I may refer the Court briefly to

section 25 of the reprint of the Mental Health Act
1977, the South Australian law, one sees there that
the determination - I am sorry, section 28e

following section 25. Section 28e of the Mental

Health Act 1977 in Part IVA says that:

(1) Where the Board, on an application

for consent ..... is satisfied that it is

therapeutically necessary for the procedure to

be carried out, it may consent .....

(2) Where the Board, on an application for consent to the carrying out of a

sterilization procedure on a person to whom

this Part applies, being a procedure that the

Board is not satisfied is therapeutically

necessary -

(a) is satisfied -

(i) that there is no likelihood of the person

acquiring at any time the capacity to give an

effective consent .....

P(2) 107 3/2/94

(A) the person is, or is likely to be,

sexually active, and there is no method of
contraception that could, in all the
circumstances, reasonably be expected to be

successfully applied; or

(B) in the case of a woman, cessation of her

menstrual cycle would be in her best interests
and would be the only reasonably practicable
way of dealing with the social, sanitary or
other problems associated with her

menstruation; and

(b) has no knowledge of any refusal on the

part of the person to consent to the carrying

out of the procedure, being a refusal made by

the person while capable of giving effective

consent and communicated by the person to a

medical practitioner,

the Board may, in those circumstances, consent
to the carrying out of the sterilization

procedure -

So we would submit that the South Australian

law must be regarded as a somewhat liberal one.	It
would be a matter, of course, of value judgment as
to the extent to which that liberality could be
regarded as appropriate, but it could well be that
the South Australian law has a far more open capacity for orders to be made than that which
would be adumbrated by the majority of this Court in Marion as the appropriate criteria, both by
reference to section 64(1) and the other matters referred to in the various judgments of
Your Honours in Marion, to authorize this very

serious medical procedure being one which the Court

recognized is one which even caring parents may not

be able to consent to.

Of course, one can postulate other various

forms of State law. There could be a State law

which said that a medical practitioner may carry

out the procedure 14 days after the filed consent

of the father or a State law could go further and

say that a medical practitioner could carry out the
operation on receipt of a signed consent from one
parent.

The submissions of my learned friends, the Solicitors-General for New South Wales and South

Australia, is that a law in any of those terms

would be necessarily picked up as having concurrent

and effective operation with the exercise of the

discussed in the Marion judgment.

serious sanction and jurisdiction of the Family Law

P(2) 108 3/2/94

DEANE J: It does not necessarily follow that the position

may not be different in the case of such laws to the position in a case such as the present where what is sought to be authorized is unqualifiedly

prohibited. I mean, the point I am making can be

illustrated if you go to section 45 of the New

South Wales Act. If you added to 2(a) and (b) a

provision, "unless the Board considered that the procedure was in the interests of the welfare of

the incapable person", to my mind that would raise

a quite different question to the question we are

concerned with, where what is involved is

unqualifiedly prohibited and is a procedure to

which the Board cannot give its consent.	You
follow the point that is troubling me?

MR GRIFFITH: Yes, I think I do, Your Honour. Perhaps it

sort of can be illustrated by a point that arose

from an answer my learned friend, the Solicitor-

General for New South Wales, where he conceded that

it would be in the heart of the parens patriae

power to say that a particular operation should not

take place. He referred to the capacity for the

Family Law Court to make an order in respect to

that situation, and the possibility that that order

may be evaded, in effect, but none the less I

understand my learned friend's concession that, in

that case, the order would be within power, whether

it was efficacious or not.

Now, Your Honour, our submission is that it is

equally within the heart of the parens patriae
power for the Court to protect the child in the

exceptional cases referred to in Marion by ordering

the procedure. So our submission is, Your Honour,

it is not a power of protection merely to

authorize, it is also a power of protection to

prohibit, and equally we say, Your Honour, the

jurisdiction of the Court is an active order to act

and protect the interests of the child. We do not

accept a dichotomy, in our submission, between an

order for prohibition which may be given force,

notwithstanding consent under a State law, and an

order for authorization which, if the State law is

to operate according to its terms, and there is no

authorizing order of the Board under the State law,

would have the effect of frustrating the order of

the Court.

So, Your Honour, our submission is that in

each case there is a positive power vested in the

Court and a power which is exercised by the Court

in an active way. The power to refuse consent, we

submit, Your Honour, is equivalent to the power to

authorize. In each case, we submit that the

operation of that order would be undermined,

frustrated, destroyed, if one likes, by an

P(2) 109 3/2/94

operation of the State law in the terms of the

New South Wales law. For that reason, Your

Honours, it is our submission that it being

accepted, as it seems by my learned friend,

Solicitor-General for New South Wales, that there

is content within the parens patriae jurisdiction

recognized by the Court in the Marion circumstances

in the Northern Territory case to prohibit. We

submit there is no relevant difference whatsoever

in respect of the effect given to an order to

authorize.

Your Honour, when one reaches that position,

our submission is that it becomes a clear matter of

consideration of relevant inconsistency between two laws dealing with the same topic, the same subject- matter, and in the State of New South Wales law by

reference to similar criteria. It is a matter of,
perhaps, a fine distinction as to whether the

criteria under the New South Wales Act are more or

less equivalent to those referred to by this Court

in Marion.

DEANE J: Except to some extent that blurs the problem.

Assume in favour of your argument that there is no

question of the adequacy of Commonwealth power and

that all we are concerned with is the question of

construction; and assume that one accepts that the

Family Law Court has authority and jurisdiction to

determine what is in the interests of the welfare

of a child of the marriage, and to make a

declaration whether something is or is not for the

interests of the welfare of a particular child of
the marriage. That, to my mind, only takes you to
the threshold of the question: whether as a matter

of construction the Family Law Act confers

jurisdiction on the Family Law Court to authorize

the doing of something which State law prohibits
and makes criminal regardless of the interests of

the welfare of the child.

MR GRIFFITH: If I understand Your Honour correctly, your

question postulates the acceptance of Commonwealth

power so to authorize the Family Law Court.

DEANE J:  No, so to determine what is in the interests of

the welfare of the child.

MR GRIFFITH:  We would then add to Your Honour's postulation

that it must be accepted, in our submission, that

it is within power of the Parliament of the

Commonwealth to dispense with the operation of the

State law as being inconsistent.

DEANE J:  No question of power but, you see, the point I am

making is this: what I am putting to you is if the

board had power to dispense or give consent if it

P(2) 110 3/2/94

considered the.matter was in the interests of the
welfare of the child, I could fully appreciate the

force of the argument that the order of the Family

Law Court necessarily prevailed and determined the

question of welfare and to the relevant extent was

inconsistent with the prohibition in the State law.

But here, if the Family Court declares that the

procedure is in the interests of the welfare of the

child and it goes to the board, the board will say,

"Well, the Family Law Court has determined this is

in the interests of the welfare of the child. We

accept that unreservedly. But that has nothing to
do with this question because here you have an
unqualified State prohibition under criminal

sanction of a non-therapeutic procedure".

MR GRIFFITH: Firstly, section 32 of the State Act would

seem to make those criteria as relevant for the

board as for the Family Law Court.

DEANE J:  No, because under 45(2) the board has no power to

give consent except in a life saving or threatened

serious damage to health and it is not suggested

that this is within that area.	We are in what has
been loosely called the non-therapeutic.	Have I

missed something? Has the board power to give

consent to a non-therapeutic procedure in these
circumstances?

MR GRIFFITH:  Your Honour, it is an issue of construction as

the extent to which circumstances such as here
could come within the definitions of the State Act.
I think this is referred to in passing by

paragraph 2 of my learned friend, Solicitor-General

for New South Wales' contentions. But the facts

are not there, Your Honour. It may well be that a

case could be made out, we do not know. But,

Your Honour, that does seem to be a more limited

inquiry than that which is the appropriate aspect

of inquiry under the Family Law Act application.

But our submission is, Your Honour, that - - -

DEANE J: But I am directing the questions I am putting to

you to a situation where, for the sake of the

questions, I am accepting that the Family Law of the welfare of the child of the marriage is conclusive of that bare question.

MR GRIFFITH:  Your Honour, our submission is, in that case,

that the plain construction of the Family Law Act

and section 64 is that in that circumstance where

the court exercising the jurisdiction under

section 64(1) takes that view and, in effect,

authorizes, directs, the sterilization for the

reasons for the welfare of the child, we submit

that there is direct authorization and sanction by

P(2) 111 3/2/94

the operation of the Family Law Act for that order
to be given effect according to its terms

notwithstanding the existence of the criminal

sanction which has not been lifted in the New South

Wales Act.

DEANE J:	I follow that is your submission.
MR GRIFFITH:	Your Honour, my learned friend, Mr Jackson,

referred to some reasons why that may be so. We

have firstly, of course, section 63A which provides

that the exercise of jurisdiction shall be

exclusive and in that context by reference to the
exercise of the welfare jurisdiction may I hand to
the Court an extract of the Watson Committee

Report, November 1982, and an extract from the Hansard Second Reading Speech in 1983 which we

would refer to briefly as confirming the extent to
which these matters were intended to be exclusive.

DEANE J: While that is being handed out, what would you say

then to my question to Mr Jackson of the position
where the Family Law Court considers the supply of

heroin to a 17-year-old addict?

MR GRIFFITH:  I was intending to come to that, Your Honour.

DEANE J: Well, come to it in your own time.

MR GRIFFITH: Perhaps while it is being handed out we can

deal with that, Your Honour. What we say with it

is that here there is a situation where one has the
certainty that this Court has held that the issue

of authorizing or prohibiting sterilization is within the power under section 64(1). In that

context, Your Honour, our submission is that one is

in a relatively clear situation of dealing with a
State law which, in its entirety, provides a regime

for the authorizing or not authorizing of medical procedures with respect to those persons not able

to consent in the limited class that here we are

concerned with, children between the ages of 16 and

18 years. So that the operation of the State Act

with respect to adults, Your Honour, is in no way

involved in this question of inconsistency.

But our submission, Your Honour, is, in that situation, one has an area of obvious

inconsistency, and paragraph 8 of our contentions

list four matters which we will be discussed at

length as indicating why there is such clear

inconsistency.

Now, Your Honour, in a case where one is

dealing with the issue, for example, of the

ordinary operation of a criminal law with respect

to heroin, it may be quite a different situation.

P(2) 112 3/2/94

For example, there would be a preliminary issue as

to whether or not it would be within the

jurisdiction of the Family Law Cou~t to make an

order with respect to the administ~ation of heroin

to a minor. Your Honour, even if one assumes that

there is such a jurisdiction, it is an entirely

differ~nt situation to consider whether a State law

of general operation by way of prohibition in

respect of a substance identified as, one might

say, a dangerous drug by each State law, is a law

intended to be displaced by reason of the enactment

of the primary power in the Family Law Court under

section 64. Your Honour, one, on the face of

things, would incline towards the view that that

was not the. parliamentary intention to displace it

and that it would not be displaced.

But, Your Honour, we say the situation is

within the area of plain operation where one is
dealing with a question of the same topic, the
question of sterilization of infants, whether or

not such operations may lawfully be carried out,

and, Your Honour, that characterization we attach

both to the procedures for consent under the State

Act and also the criminal sanction, the

prohibition, which is part of the general scheme of

the Act to ensure its operation. The provisions in

respect to the penalty, the seven years gaol in

respect of the medical practitioner who carries out
the procedure under the State Act, is in the

context of a statutory scheme providing a mechanism

for consent to lawful operation and we submit, in

that case, there is no obvious difficulty to saying

that the whole operation of the Act is

inconsistent.

Your Honours, perhaps that really leads to

another aspect of consideration of wider topics

that State laws dealing with different

subject-matters of course continue to operate

according to their term. So, for example,

education Acts, public health Acts and an Act

dealing with fluoride in water, would not be

affected, we would submit, by any view taken by a

Family Law Court that a particular infant should be

protected from fluoride coming by reason of the

operation of a State law. Provisions as to

registration of doctors is another example, or

standards for food, such laws of that sort will not
be affected and we would say that the heroin

example is one which falls beyond the strong

situation which exists here.

If I may take the Court briefly firstly to the

Watson Report at page 9 of the extract, this is in

the context of the discussion by the committee of

the appropriateness of the welfare power being

P(2) 113 3/2/94

vested in the.Family Law Court. In the last full

paragraph beginn.ing "Moreover" -

BRENNAN J: What is this to show, Mr Solicitor?

MR GRIFFITH:  Your Honour, it is to show an intention which

is translated through the second reading speech,

that the vesting of the jurisdiction in respect of

welfare matters should be exclusive. We say that

if it is so intended to be exclusive, it confirms

very much the obvious construction of the terms of

section 64 that the power to authorize or to

prohibit sterilization is to be a power wholly

within the federal jurisdiction, Your Honour, and

not one which is subject to any operation of

various State laws from time to time.

BRENNAN J: What is the legal method of reasoning which

takes us from this document to that conclusion?

MR GRIFFITH:  Your Honour, there are several. Really it is

corroborative at this stage. We would say in

essence this does no more than what a plain reading
of the Act does, and in the event section 63A of
the Family Law Act provides for exclusivity in this
case. But perhaps it is a case of all roads

leading to the same point, Your Honour, of

indicating an intention that the power is to be one

which is to operate according to its terms and not

to be qualified by the differing terms of State

laws operating in the same area. I do not wish to

detain the Court for any length other than to refer

to that paragraph and also to the second reading

speech at page 1098, 1 June 1983, right-hand

column, the paragraph beginning, "In accordance

with the Watson Committee's views". It is made

quite clear that the questions of welfare are to be

regarded as exclusive matters to be vested within the Family Court under the provisions of Part VII of the Family Law Act.

I have referred already to section 63A and we

would accept the submissions of my learned friend, the prohibition in respect of procedures picks up the operation of the proceedings under the

Guardianship Board under the State Act. There is a

definition of "proceedings" in section 4 of the

Family Law Court which is to apply subject to

contrary intention. Our submission is that it is

very much clear that the word "proceedings" in 63A

has a wider meaning in the definition and that it

is intended both to cover other court proceedings,

for example in the supreme court, as well as

proceedings in a board such as the Guardianship

Board for the reasons stated by my learned friend,

Mr Jackson.

P(2) 114 3/2/94

Indeed, if it is clear as it is, we s 11bmit

that section 63A excludes the jurisdiction of a

State court. We submit that it is a natural

meaning of the intended exclusion to regard that as

operating as equally to prohibit any procedures

being taken under a State body which may not be a

court, although we would accept that for the

purpose of State law here the Guardianship Board

may be regarded as a court.

So we do rely on section 63A as confirming the

fact that its jurisdiction vested in the Family Law

Court is intended to be exclusive of interference

by procedures in the court. Section 60H, by

dealing comprehensively with what we might put the

post-Lambert situation of excluding the operation

of State custody laws and State criminal laws, in

our submission, makes it clear that the exclusions

to the general operation of the jurisdiction under this part, including section 64, are to be defined

by references to those which are recognized by the
operation of the Act, including section 60H, and
are not to be extended by other inferences based,

for example, on the fact that there is co-existing State legislation dealing with the matters here of

sterilization.

So that where, as was raised for discussion yesterday, it was suggested that it may be that the

powers of the Family Law Court include the power to

order release from custody, in our submission, as a
matter of construction, that is not so.

Section 60H makes that clear, and my learned

friend, Mr Jackson, just handed the relevant

regulation, regulation 12B to the Court which

confirmed the prescription of general State laws,

and they are listed in the schedule to the
regulation, dealing with custody and guardianship

of children as being preserved in operation by the

specific provisions of section 60H and the

regulations made thereunder.

So that the issue as to whether or not, absent

such provisions, it would be within power of the

Family Law Court to order release of a child from

custody under a State law just does not arise.	Of
course Lambert indicates that there may well be

limits to the power which may be validly vested in

the Family Court in respect of that situation, but
the legislation very much takes on board after

Lambert that qualification on power and section 60

has a comprehensive expression of limitations

which, we would submit, excludes any real

possibility of transgression within that area.	So
that when one is dealing with the question of

sterilization, in our submission, there is to be no

assistance gained by consideration of implied

P(2) 115 3/2/94

qualifications dealing with the situation of,

"Well, what if the court went further and made an

order dealing with a child who was within custody?"

Section 60H(2)(e) goes one step further,

because it, by reason of the prescription of

Division 5 of the New South Wales Act, specifically enables the State law to operate with respect to a
child which is under a State welfare law within the

meaning of section 60H(l). So that there is a

legislative intention carried into effect to

exclude from the operation of a section 64(1)

order, a child who was in custody of a State

institution, or under control of a State welfare

law under section 60H. In our submission, that is

another clear legislative intention that it is

intended otherwise the children who are not so

excluded should remain under the effective

operation of an order made pursuant to section 64.

McHUGH J: But what about other offences? New South Wales

law prohibits a person administering an x-ray

unless the person holds a licence under a

particular piece of legislation. Could the Family

Law Court authorize a person who did not hold a

licence to carry out an x-ray on a child?

MR GRIFFITH:  Your Honour, we would say, of course not, and

I think I referred also to medical registration

procedures.

McHUGH J: Well, what about psychosurgery legislation in

New South Wales? It has been prohibited for some

years, some forms of psychosurgery. Supposing the

Family Law Court, acting on evidence, thought it

was for the welfare of a child that there should be

some form of frontal lobe surgery, would that be

authorized in breach of New South Wales

legislation?

MR GRIFFITH:  Your Honour, it becomes a question of looking

at the particular State law. The clear case is	registration and medical practitioners, that it
would be beyond power, we would say, for a
Family Court order to order that a doctor, who was not registered under the New South Wales laws or
had been struck off, carry out the operation in New
South Wales.

McHUGH J: But why? What is the difference between that

sort of law and the prohibition in section 35

against a person carrying out medical - - -

MR GRIFFITH:	Your Honour, one is dealing with a different issue if one is dealing with lobotomies. What we
are dealing here with is sterilization, and what we
submit is that we start with the acceptance, as the

P(2) 116 3/2/94

majority of the Court did in Marion, that

sterilization is a serious procedure, one that the

parents cannot consent to, one in which court

sanction is required, one in which the sanction

must be of the Family Law Court, and we submit that

it must exclusively be the Family Law Court, no

other court, by operation of the various matters to

which we have referred.

Now, if Your Honour's question is predicated

on, "Well, what about a question of an order for

lobotomy in the interests of the child?", one is

dealing, with respect, with an entirely different

situation. If the Court did take the view that

some medical procedure was authorized, Your Honour,

it is still not the case that the Family Law Court

has the capacity to provide for its own mechanism

of qualification of medical practitioners to carry

out such procedures. It is just not within the

power, with respect, so that a State law dealing

with those matters or even prohibiting those

matters can take effect according to its terms.

Here, Your Honour, the question is not a question

of that sort. It is a question in the context of a

State law providing a scheme for the carrying out

of medical procedures, including sterilization on

persons unable to consent, including infants

between the age of 16 and 18 years, there is a

scheme of prohibition subject to a regulatory

scheme under the Act. In our submission,

Your Honour, that comes clearly within the ambit of

what is plainly inconsistent with the operation of

the jurisdiction confirmed by the Commonwealth law.

I intend to refer next to Your Honour

Justice Brennan's remarks if I may to the castrati issue that might arise, as to whether or not

sterilization for reasons of inheritance or to

procure a chorus of sopranos in perpetuity for a

lifetime is within the power.	In our submission,
the power to authorize, of course, includes the
power to prohibit.	Now, Marion's Case makes quite

clear that the power in respect of sterilization is

an exceptional power to be exercised with respect

to authorizing sterilization, one that firstly

cannot be left as a repository to the ordinary

powers of consent of the parents and, secondly, one

which must be exercised with great caution and

anxiety by the court which was held necessary to

give the necessary sanction in such cases where it

was appropriate for there to be such a procedure.

In our submission, implicit in that is the

acceptance that the Court does have jurisdiction to

determine whether there should be sterilization.

When one looks at the content of that, one sees

that the grounds on which an order may be made are

P(2) 117 3/2/94

very narrow ones, limited to matters related very

much to the personal integrity and interests of the

· child and person. So that it is, one might put,

absolutely untenable to contemplate even an

application for reasons of inheritance or for

reasons of inducing a continuous physical state, so

that if any such application was made it would be

dismissed as of course but, in our submission, that

merely confirms the existence of the jurisdiction

rather than goes to deny it. It is an important

jurisdiction jealously guarded by the court and one

which will permit only a very limited and exception

possibility of being exercised.

BRENNAN J: Well, so you submit, and one could understand

the reason for the submission, but when, as I have
already said and I do not need to repeat it, the

test is no more than the benefit of the child, the

criterion is the criterion of the decision-maker.

MR GRIFFITH:  Yes. Your Honour, we would submit that there

are criteria by reference to section 64(1) and
also, Your Honour, one needs to go no further than

the various judgments of this Court in Marion to
see the anxious inquiry and strictness of approach

in consideration of its exercise. Your Honour, it

is not a power at large at all; it is one severely

circumscribed and one, indeed, where the

Court - - -

BRENNAN J:	By what?
MR GRIFFITH:	Your Honour, by the confidence one has in the

courts. Your Honour, it is unproductive for me to

read parts of Your Honours' judgment to make this point, but one sees within the judgments and also

within the report and the reference to human rights

considerations that pass quickly before the Court,

the great difficulties that there are in respect of

this issue, and all those matters bear

exceptionally heavily upon any judge who is invited

to consider these issues, and that is why,

Your Honour, the jurisdiction is vested in the

Family Law Court, but Your Honour - - -

McHUGH J: As Professor Duncan Kennedy has pointed out in an
article I referred to in my judgment in Marion, the

Court is at a disadvantage in this area because the medical evidence tends to be what counts; it is

what I think he referred to as, "the medical

dossier." But one can understand when you have a

specialist board, like the Guardian Board, you have

people who have medical qualifications, are much

more expert at making a decision.

MR GRIFFITH:  Your Honour, that is entirely accepted and

hence my initial reference to the report of the

P(2) 118 3/2/94

Family Law Council and the fact that the matters

which were touched on by the High Court in the

majority in their judgment, indicating this is not

the best procedure, are under anxious
consideration, but this case is not about whether

or not the board procedure is better than the

Family Law Court - - -

McHUGH J: No, I know that. In one sense it has got nothing

to do with it but it was just a remark you made

when you spoke about confidence in the courts, that

was all I - - -

MR GRIFFITH:	Yes, Your Honour. We make that submission in the context that this might be a stopgap mechanism
to deal with the issue.
BRENNAN J:	I could see greater force in your general

approach if the broad discretionary power which was

vested in the Family Court was such as by

implication because of the preciseness of the power

to overrule or to be inconsistent with the

guardianship law but when the power is so much at

large and expressed in terms of the welfare of a

child, I do not understand how a court acting

judicially at the moment of decision is able to say

that, "We determine that the welfare of this child is inconsistent with the law of the State which is

binding upon the performance of the operation."

MR GRIFFITH: With respect, Your Honour, the inquiry of the

court is merely to say - giving anxious
consideration and doing the best it can,

Your Honour, and it has a capacity to call for

whatever evidence it wishes to be satisfied. That

is its view as to whether or not there should be

sterilization. The decision of this Court in

Marion is authority for the proposition that the

court has that jurisdiction.

BRENNAN J: But your proposition is that the court's policy

determination can be inconsistent with a law of a

State which prima facie, by section 118 of the

Constitution, is binding on that court.

MR GRIFFITH:  Your Honour, we say indeed, that must be so.

What of the law of a State that enables sterilization on the signed consent of the father?

We would submit that it is a clear matter within

power of the court under section 64 to prohibit

such a sterilization, notwithstanding that it is

made lawful under the State law.

DAWSON J:  What if it were a Commonwealth law that provided

that way, the Court would have to obey -

MR GRIFFITH:  Your Honour, that would be entirely different.

P(2) 119 3/2/94

DAWSON J:  Why?

MR GRIFFITH: Because of the fact, for the reason submitted

by my learned friend, Mr Jackson, that one can then

pick up the approach, for example, in Re Wand

other of the English cases, that where one has a

statutory provision in a unitary State, well then

firstly, Your Honour, perhaps as a matter of

construction, regard the parens patriae

jurisdiction as read down and limited to that

extent, and secondly, and this is really the matter

of emphasis from all the English authorities, it is

not a question of limitation to parens patriae

jurisdiction but limitations on the discretion to

exercise it which arise - - -

DAWSON J: Precisely, and a State law is no less the law

than the Commonwealth law, why is not the parens

patriae jurisdiction of the Family Court, in the

absence of express legislation, to be exercised in

accordance with that law?

MR GRIFFITH:  Your Honour referred earlier to the circle,

perhaps it is a question of where the circle starts

and is broken.

DAWSON J: Well, we are going over the same ground, that is

right.

MR GRIFFITH:  Your Honour, we say the circle is broken on

the inconsistency.

DAWSON J: Well, I do not see that.

MR GRIFFITH:  I see Your Honour does not see it, but that is

our submission, with respect, on that, Your Honour.

DAWSON J: Yes, I understand that.

MR GRIFFITH:  If one reads the Act as expressly saying "and

subject to the law of any relevant State", if one

likes Territory, well then one, Your Honour,

necessarily will reach a different result on the

issues which are here before the Court. We would point out in Marion that although, of course, the

Court might have just decided - - -

BRENNAN J: But, that is there, is it not? Is it not "and

subject to any law of the State unless there is an

inconsistent Commonwealth law with that law"?

MR GRIFFITH: Yes, Your Honour, but the inconsistent

Commonwealth law, we say, is the - - -

BRENNAN J:  Is the very law under which that jurisdiction is

conferred by reason of the breadth of the

jurisdiction.

P(2) 120 3/2/94

MR GRIFFITH:	And other pointers, Your Honour, refer to section 68 and'section 63A; if one likes,
section 77(ii) of the Constitution, dealing with exclusive vesting of jurisdiction. In dealing with the issues that we have summarized at length in
paragraph 8 of our submissions to demonstrate that
there is a true inconsistency of similar laws
dealing with the similar subject-matter for a
similar purpose, one could get either a consistent
or an opposite result and we refer Your Honour to
the usual authorities on saying that is sufficient
for inconsistency.

But, Your Honour, there is, I suppose, an

abstract question here. What if there was no State

law other than somewhere within the State criminal
law a general provision saying, "No medical

practitioner within the State shall sterilize a

child under 18.", full stop, that is it. One must

submit then that is a different situation from here

because one is getting more to the heroin situation or perhaps some other general law about criminality

in children which could not be affected by the

operation of a Commonwealth law.

Your Honour, we must concede that a bare State prohibition like that would be more difficult for

us because we would not have the same elements of

covering the same field of inquiry or a similar

field of inquiry in slightly different terms that

we rely upon to establish, we submit, a strong case

of inconsistency here.

TOOHEY J: But is that not what you have here, Mr Solicitor,

prohibition? There has been a lot of discussion

about the role of the board and the position of the

board vis-a-vis the court but in the particular

factual situation with which we are concerned, does

the board have a role?

MR GRIFFITH:  We say the fact that that question can be

asked demonstrates the inconsistency here because

what one has is a State scheme which says

that - perhaps, Your Honour, it is somewhere

between what would be admitted by the Marion

indications and a blanket prohibition in the New

South Wales law, whereas the South Australian law

seems to be somewhere between Marion and the

somewhat freer provision enabling sterilization.

But, with respect, that is in the context of the

State law providing for circumstances where there

may be sterilization of someone between 16 and 18

and when there may not, and the prohibition, with

respect, is to be characterized as a law

buttressing the State law which draws the line.

P(2) 121 3/2/94

In our submission, that is an area vested

provisions of Part VII of the Act, and we submit
exclusively vested, and vested in terms whereby any

within the Family.Law Cou~t pursuant to the of the jurisdiction both to authorize and to

prohibit is to that extent invalid as being

inconsistent.

McHUGH J:  But you have to strike down not only those parts

of the Act dealing with the board's consent.	You
have to strike down the opening words of
section 35.

MR GRIFFITH:  Of course, Your Honour, because what

section 35 says~ in effect, here is that

notwithstanding, we say, a lawful authorization

under section 64 with respect to this child, if you

do not come within the more limited operation and

able to obtain consent of the board under the State

Act, there can be no sterilization by a medical

practitioner in this State. We say, Your Honour,

so expressed, one is putting up the clearest case,
in our submission, of inconsistency because the

provisions of the Commonwealth - - -

McHUGH J: Another way of looking at it is that at most you

have to knock down the "unless" clause, leaving the

prohibition standing.

MR GRIFFITH:  Your Honour, with respect, that is unrealistic

because that destroys even more. That if there is

a power under the Commonwealth law which is

intended to be effectively exercised, and we say it

is clear it is vested for that purpose, and after

Marion it is as if the words specifically are

stated sterilization in these circumstances as

being part of the power, it must be as of course

inconsistent to let a State law, providing there

shall not be sterilization of a child within that

age group, if one likes, on any terms or unless there is an immediate medical necessity for it.

McHUGH J:  Is not one of the problems it does not strike

down the State law apart from the concrete case.

It just affects its operation.

MR GRIFFITH:  Your Honour, that is what happens with

inconsistency. The State law applies with respect

to any person over 16. The striking down here will

only be in the area of the child between 16 and 18

in circumstances where, as a result of the

operation of section 64 an order is made

authorizing sterilization. That is where one gets

the inconsistent operation. The State law is not

otherwise invalid. It continues in respect of

adult persons. It might be put, it is invalid with

P(2) 122 3/2/94

respect to children between 16 or 18 because of our

submission that ~he jurisdiction of the Family

Court is exclusive.

TOOHEY J: But on the facts of this case, is it a question

of the extent to which an order of the Family Court

may override the powers of the Guardianship Board

or is it a question of the extent to which an order

of the Family Court may overcome the clear

prohibition in the State statute?

MR GRIFFITH:  Your Honour, we would prefer to put it another

way: it is the extent to which the provisions of Part VII of the Family Law Act render inoperative

with respect to a child between 16 and 18 the

provisions of the State Act, including the criminal

sanction.

BRENNAN J:  So that absent any order by the Family Court,

that section 35 has no application to a child

between 16 and 18?

MR GRIFFITH:  Your Honour, that is our submission because we

say the jurisdiction is exclusive.	I am sorry I
did not make that clear earlier.	If that is high

ground, we take it and hence our reliance on

section 63A and the other factors we refer to as

confirmatory of it and relying on section 68 - - -

BRENNAN J: Yes, I can see the logic and force - indeed the

necessity in my view - of taking that - - -

MR GRIFFITH:  Your Honour, our submission is that that is

appropriate. If we put it to the nether regions of

the effect of the order, we submit that the order can operate plainly because the effect of the Act has been to take away, if one likes, the problem of

the various operation of State laws that might

operate in various terms from time to time. For

that reason, Your Honour, we do not seek - - -

BRENNAN J:  What it does mean of course is that there is no

State law which might impinge upon a child's

welfare which survives the enactment of section 63

and - - -

MR GRIFFITH:	Not at all, Your Honour, because here, in our submission, we have the advantage of the decision
in Marion which establishes that authorization or prohibiting sterilizations within - - -

BRENNAN J: Well, that is because in Marion you point to as

saying that is something to do with a child's

welfare. Why does not your argument lead to the

proposition that any State law which affects the

welfare of a child is suspended by operation of the

welfare provisions of the Act?

P(2) 123 3/2/94

MR GRIFFITH:  Your Honpur, perhaps for the same reason the

Court in Marion confined itself to the Northern

Territory apart ·from a reference to the State law

and fortunately a passing, and we say quite

correct, reference to the fact that apart from the

territories power the law was supported by the

marriage power.	We must accept that there
are - - -

DAWSON J: Well, do you agree with that composition?

MR GRIFFITH: His Honour Justice Brennan's one?

DAWSON J: That the effect of Part VII of the Family Law Act

is to suspend, for want of a better word, any laws

dealing with the welfare of a child in the State?

MR GRIFFITH:  Your Honour, with respect to sterilization I

do; with respect to other laws one must look at the

particular law.

BRENNAN J: But the hypothesis is that it affects the

welfare of the child.

MR GRIFFITH:  Your Honour, it may, to that extent, be

inconsistent. One cannot have a blanket view of

inconsistency of all laws and we refer to the

heroin example; we refer to the question of

fluoride, food standards, Your Honour, they may all

affect the welfare of children - compulsory

immunization - but we cannot answer all those

questions here anymore than in Marion the Court

answered in respect of the Territory and flagged

issues which have arisen for consideration in this

one.

BRENNAN J:	I suppose compulsory immunization is a very good example. I mean, if your argument is right, as I
understand it, an operation of the Family Law Act
in relation to any child, the State immunization
laws are suspended, because nobody can doubt that
welfare of the child.  the question of immunization or no is a matter of

MR GRIFFITH: With respect, Your Honour, that is a case for

another litigation - - -

BRENNAN J:	No doubt.
MR GRIFFITH:	- - - and if that is the issue, we come back

another day and argue that.	We cannot answer all
these.questions.

McHUGH J: Well, can you answer this question: is it your

submission that Part V of the Guardianship Act is

invalid?

P(2) 124 3/2/94

MR GRIFFITH:  In respect of children between 16 and 18, yes.

McHUGH J: But that only applies to children above the age

of 16, does it?

MR GRIFFITH: Well, it applies to, I think, persons over 16.

McHUGH J: Over the age of 16 who are incapable of giving

consent.

MR GRIFFITH: Yes, well that could be over 18 too, I should

imagine.

DEANE J: But you have to limit it to a child of the

marriage, have you not?

MR GRIFFITH: 

I am sorry, Your Honour. That was another

point I was going to make, that there was an
attempt by me, deservedly unsuccessful, to raise in
this case the issues of children not child of a
marriage, and the Chief Justice quite rightly said,

"Well, that does not arise here, that is an issue

for another day", and His Honour .... quite right.

That is why we have confined ourselves entirely in

our submissions to reference to children of a

marriage.  Now, my learned friend, the Solicitor-

General for New South Wales, referred to the

reference of powers laws and said, "Well, perhaps we could seek support in respect of children of a

marriage of the reference of guardianship and

custody under the ..... ".

Your Honour, we could but we chose not to,

because we already have the sanction of a decision

of this Court saying that sterilizations are within

the power under the marriage power, and we see no

need to support it by reference to the similar sort

of terms coming in under the reference of powers.

But in another case, which would be the Marion (No.

3), where it is not a child of the marriage, well then we will have to consider both the content of

the reference of powers and the content is referred

to in my learned friend's submissions of the

limitations of that reference. But, of course, all

the submissions here are confined to child of the

marriage.	I am sorry I did not make that clear,
but that is our approach on that.	It is our plain

submission that in respect of a child of a marriage

the Guardianship Act provisions applying to a child

between 16 and 18 are wholly invalid.

GAUDRON J:  Why do you limit it to 18?

MR GRIFFITH: That is another question that I am glad

Your Honour made. It would be our case if the

child were over 18 that none the less in particular

circumstances, obviously such a child also would be

P(2) 125 3/2/94

a child of the marriage remaining within

jurisdiction. The usual cut-off period is 18 but

can be extended in a case of incompetent children,

but, Your Honour, perhaps it is just another

attempt to confine to the issue in hand, this one

is between 16 and 18.

GAUDRON J: Except that in a case such as the present, it

should not be confined, should it? I mean, if the

matter is to be determined finally two, three years

hence it would seem

MR GRIFFITH:  Yes, Your Honour. Our submission would be in

a case of this kind, the jurisdiction would run on

beyond the age of majority, perhaps indefinitely,

for the reasons of the incompetency of the child.

So Your Honour is quite right there too, but

perhaps it is an element of circularity in the

qualifications, but to keep the answer clean, as it

were, here we have a child between 16 and 18; in

our submission, the State Act is wholly invalid in

its operation in respect of the issue of whether or

not the child may lawfully be sterilized in

New South Wales.

If the Court pleases, we have in our hand up

contentions made the point as to the priority we
see the question should be considered and, of
course, that obviously is by reference to these

issues of considering the content of the power and

the inconsistency issue. We do not intend to make

submissions in respect of the judicial power points

raised by my learned friend. We have written

submissions but we say that the problems that he

seeks to argue just do not arise when one has

regard to the essential issue of whether or not
there is inconsistency between the federal law and

the State law.

If the State Act is held not to be invalid,

well then it must remain the case that after

Marion, authorization would be required both from	the Family Law Court and under the State law, and
our submission is that this would seem at least to
be a very strange construction of the intended operation of the federal law.

McHUGH J:  Just the same as in Airlines of New South Wales.

MR GRIFFITH: Well, not quite the same, Your Honour - - -

McHUGH J: The airline had to get a licence under both Acts,

under the federal regulations and the State

regulations to run the aeroplane.

MR GRIFFITH:  One has the problem of dealing negatives and

positives because one may have a different result,

P(2) 126 3/2/94

that you might have the federal law saying no

authorization and. the State law saying
authorization as, say, one could get in South

Australia. In that case, Your Honour, one would

have an unseemly attempt to make efficacious
federal orders to make sure that the State law does

not operate to enable the operation to take place.

One may have a different order of federal sanction

and State prohibition, as could probably arise in

this case under the New South Wales Act. In that case the positive determination of the Family Law

Court that there should be sterilization would be

frustrated in that State, and in an ambulatory way

just depending on the laws of New South Wales as

distinct from the laws of South Australia.

Your Honour, these points really go to the appropriateness of the conclusion that there is an

intention for the Commonwealth law to prevail for
there to be inconsistency because of the different
position one gets in different jurisdictions from

time to time, and if there is a different view

taken, or even the same view taken, as to

authorization or non-authorization.

McHUGH J:  It is a pity that Parliament did not say so

expressly. It just ..... a question of power then.

MR GRIFFITH: That is quite right, Your Honour, dealing with

the view on the welfare powers enacted in

1983/1984, resulting from the Watson Report,

following the Marion decision. Now, if the Marion

decision was that there was no power to order

sterilization, one still would have had a

discussion paper such as this come forward, saying,

"This is an important social issue. We have to

consider what to do with it. There is no laws".

And that is obviously not satisfactory to have no

laws. There is no Commonwealth law, perhaps there would be no State laws; there are some State laws,

and in other States there is merely the common law.

But, Your Honour, this does establish that those

issues are being considered but we submit they are considered within the framework of a matter where, as far as constitutional power is concerned, with

respect to children of a marriage, those matters

may be disposed of appropriately and completely and

efficaciously, by federal law, and what is put

against us, "No they cannot. Whatever the view
taken as a matter of policy after anxious

consideration leading to federal legislation, it is

liable to be affected, and even frustrated, by the

several and cumulative and progressive operations

of the laws of seven jurisdictions", and we submit;

at least in respect to the States, that is not so

and certainly, in respect of the Territories, it

cannot be so.

P(2) 127 3/2/94

The majority in Marion referred to the

self-imposed limitations of section 60H applying
the operation of State law, for example, in New

South wales, and we make the point that that qualification was, of course, relying upon the

terms of section 60H which do make that limitation

self-imposed. We have referred the Court, as

Mr Jackson has, to the limitations of that

self-imposed limitation. It is a limitation in

respect to prescribed State laws dealing basically
with welfare and custody. Outside that

self-imposed limitation, in our submission, there

is no relevant limitation and that the federal
power does remain one which may, if it is so
construed, operate notwithstanding a State law.

And for the reasons in our written contentions and

in the submissions made by my learned friend,

Mr Jackson, and by myself, we submit that in this

case, not answering all the possible questions that

might arise in other situations and for other laws,

there is a plain inconsistency between the two

laws. If the Court pleases.

MASON CJ: Thank you, Mr Solicitor. If the respondent

wishes to address the Court, this would be a

convenient time.

MR P: Your Honours, thank you for the opportunity to speak.

First, both the New South Wales and South

Australian Attorneys-General Departments have named
me as a respondent and my former wife as an

applicant. I would like to put it to you that we

are both first and second respondent, and I would

like to say I support my wife's application

100 per cent in rendering our daughter permanently

infertile.

What has happened, and I have been listening for two days here to the submissions of all these

people on my left and on my right, and I find it

very confusing, as a layman, that we have been

jumping from one case to another. We have touched

back on our case only briefly and then jumping back

to other laws. What I would like to say: it is a

very hard and heart-wrenching decision to have to

make by anyone, to be placed in the position to

deny not only ourselves of grandchildren, but also

of our daughter the chance and the right to become

a mother. But it is something that both my former

wife and I have talked about many times and,
regardless of the situation that we are in, our

daughter's welfare comes first, and no one cares as

much for her welfare as we do.

Our daughter is a lovely looking girl. She is

trusting. She is innocent, and certainly innocent

of what goes on in the world around her, and being

P(2) 128 MRP 3/2/94

of a me~tal age of somewhere between three and

seven and a very attractive girl makes her more

vulnerable to the risks that are out there in the

real life, and we read about them every day.

Our daughter is incapable of understanding or giving consent to anything, and that is including

advances of non-sexual or sexual, of which she does

not understand the consequences of that act. She has already been assaulted or subject to a sexual

assault which almost resulted in her death. Her

mental age classified her as an unfit witness and

our daughter had, we feel, no human rights. This,

again, is a law that has been passed or it is a

situation of the law that these people can be

ignored because of their inability to relate to

people what actually happened to them and, unless

there is an independent witness, it is impossible.

If our daughter falls pregnant, not only the baby's health and her's would be at risk, but there

is a very great risk of both their lives being

terminated, and the reason for this, Your Honours -

I do not know whether or not you have received the

reports of the doctors previously in this case?

MASON CJ:  No, we have not, because we are asked to

determine certain questions of law only.

MR P:  Fair enough. Our daughter is on three 35,000

milligrams of medication a week. That is 500

milligrams a day. If I have to take some form of

medication, I can feel the effect of that

medication.	The effect that this medication must
have on my daughter is horrendous.	Your Honours, I

am basically asking you to put this back into the

hands of the Family Law Court where this case and
other cases can be judged on its own merit and not
left to a board, and the reason for me saying, "not

left to a board" is because I am aware of a few

people that are on particular boards that under no

circumstances would they grant, and even in worse

cases than our daughter, the acceptance of a

sterilization. Our daughter is in real danger and

is not capable of even looking after herself, let

alone a baby that might be the result of a

relationship regardless whether it be forced or

otherwise.

The Human Rights people in their submission in

section 4.3, a "Child's right to be heard."	I
would not be able to put my daughter into a
situation where if she was overwhelmed by the
amount of people that that would be like this.	She

would be overawed, as I am myself in some cases of
what I have heard today, but she would be certainly

represented by an independent person at the Family

P(2) 129 3/2/94

Law Court so her rights would be upheld. It is not

as if we have tried to push this through in the

wrong content.	We have taken all the right steps
and we have come to this.	Our family has been

through a traumatic time over the last five years. We are still going through it because of points of

law. I am asking you to be expedient in your

decision and to put it back into that Family Law

Court. Thank you, Your Honours.

MASON CJ:  Thank you. The Court will adjourn and will

resume at 2.15 pm.

AT 12.56 PM LUNCHEON ADJOURNMENT.

UPON RESUMING AT 2.16 PM:

MASON CJ:	Mr Solicitor for New South Wales.
MR MASON:	If the Court pleases. The talk about circles and

how one escapes circles cannot avoid the fact, in

our submission, that the prior questions to be

determined logically in this case are the

interpretation and validity of the federal Act.

Only then does the question of section 109 take

effect according to its terms. The constitutional

issues which we have sought to raise, in particular

the one involving Chapter III are to be determined

as a matter of substance, not as a matter

necessarily of the form in which the power is

vested in the Family Court, albeit that we rely
upon the generality of that form as supporting our

contention.

My learned friend, Mr Jackson, referred to

section 64(l)(bb) and 43C of the Family Law Act.

Neither of those provisions, in our submission,

amount to a conferral of jurisdiction. Rather,

they are curtailments of the manner in which a

jurisdiction to be found elsewhere is to be

exercised.

The relevant jurisdiction, it is common

ground, is that to deal with proceedings in

relation to the welfare of a child, the child being

here regarded as a child of the marriage and our

submission that Marion's case establishes that the

Watson Committee intent was carried into effect and

that parens patriae power, nothing more, nothing less, save only for the wardship aspect was that

P(2) 130 3/2/94

which was conferred upon the Family Court by

section 64.

Indeed, when the Chapter III issue was raised,

the Commonwealth in particular seeks to rebuff our

Chapter III arguments by invoking the parens

patriae tradition and saying, "This is a

traditional power that has been conferred upon the

Family Court". It is that very tradition that

makes it entirely appropriate, we submit, as a

matter of construction that the unbroken body of

case law to the effect that parens patriae cannot

be used to override enacted law is capable of

application.

It would appear to be accepted that in a

unitary system or in the application to federal

statute law, the jurisdiction of the Family Court

may not, under section 64 in its present form, be

used to override enacted federal law. A Family Court could not order the importation of heroin

though it were perceived to be for the benefit or
the welfare of a child.

There is simply no reason in point of construction why the power should change in its

application intent or content in its application to
any other statutory provision that affects the
rights of parties a fortiori the rights and
obligations of third parties, such as medical

practitioners.

In our submission, reference in this context

to Engineers is entirely misplaced. Engineers

deals with a principle of interpretation of the

Constitution and whether a grant of lawmaking power

to the Federal Parliament is to be restricted by

reference to some reserve in the State lawmaking

constitutional power. Engineers says nothing as to

the interpretation of federal legislation.

We have submitted that the topic of welfare of

a child of a marriage is not a constitutional head

of power, and the case law, in our submission, is

clear that the marriage power is not the same as a

power to make laws with respect to the welfare of

children. In one sense the involvement of the

Family Court through section 64 confuses what I

submit is the constitutional issue. The

constitutional issue, apart from the Chapter III

one, can be tested this way: if the federal

legislation simply said "a medical practitioner

shall not sterilize a child of a marriage", would

such a law be valid and referable to the marriage

power, because the role of Family Court, albeit, in

the present form of the legislation, is to permit

or to prohibit, the substantive constitutional

P(2) 131 3/2/94

issue ultimately comes back to the one which, in my

submission, I have just stated.

It is not sufficient, as my learned friend the

Solicitor-General for the Commonwealth submits, to say that he, as it were, stands on the rock of

Marion's Case and that whilst conceding that the Family Court cannot order a child's release from

prison say but at least Your Honours in the

majority in Marion said, "We may authorize a

medical procedure of this nature." The passage at

page 259, about point 4 -

It is to be remembered that what is sought is

not the court's consent as, for example, in
the signing of hospital forms, but its

authorization -

must be understood and was intended to be

understood, we submit, as being authorization not

to the doctor but authorization to the parent to give consent and to give consent in a particular factual and legal context.

That is made crystal clear, we submit, in the

paragraph at the bottom of page 261 going down to

almost the middle of page 262. My learned friend,

Mr Jackson, read one sentence at the end of that

paragraph but left off what we submit were the key

words. At page 262:

An order from the Family Court can be characterized as part of family law, as is the doctrine of parental consent and, as such, can be described as a substitute for personal consent, the operation of the laws of assault continuing to have effect.

Those laws of assault do not continue to have

effect in New South Wales because of the criminal

prohibition to be found in section 35 of the State

Act.

There was some passing reference to

section 51(xxii) in some of the submissions, but
our submission is it does not take it any further,
not just for the reason that Your Honour

Justice Dawson mentioned about the overlap of the

ambit of the two powers, but simply because parties

to a marriage cannot, by generating a dispute

inter se, increase the powers of the court to

authorize that which would otherwise be unlawful.

The fact that a husband and wife might disagree

about whether or not it is a good idea to maim a

child would not give the Family Court power to make

an order to that effect.

P(2) 132 3/2/94

Reliance by my learned friend Mr Jackson upon

Jackson v Sterling is, in our submission,

misplaced. The section there discussed in the

passages he read relate to the interpretation of

the Federal Court Act and to provisions in the

Federal Court Act that provide a jurisdiction that

is ancillary to a substantive head of jurisdiction.

It is a power, perhaps rather than a jurisdiction,

conferred on the Family Court to make appropriate
orders in aid of a jurisdiction otherwise

conferred. Here, the question has got to be

whether section 64, in using the same words,

confers a substantive jurisdiction with the breadth

that the respondents and the Solicitor for the

Commonwealth would argue.

In one variant of his submissions, my learned friend Mr Jackson said, "Well, there may a

distinction between the traditional criminal law

and section 35 of the New South Wales Guardianship

Act".	We do not accept that distinction but we
submit that it has no application here.	The

closest analogy of section 35 is to what can be

regarded as very traditional heads of criminal law,
namely, assault upon a particular category of

person incapable of giving consent, or if one wants

to look at the, as it were, medical area, a form of

medical procedure that may be capable of said to

being in the interests of the person upon whom it

is performed, but it has nevertheless traditionally

been regarded as one within the scope of the

ordinary criminal law, a law with regulates

abortion.

The question of the power of the Family Court

to make a declaration and order that the particular

operation not take place is, strictly speaking, not

in issue in this case. But let it be assumed that

the Guardianship Board said, "We give consent to

Dr X to do it", remembering that section 45(2) of

the State Act says that the Board must not give

that consent unless a very high threshold of

persuasion is reached.

But let it be assumed that that consent having been given to Dr X the Family Court were moved to

restrain Dr X from doing it, would an order, an

injunction, emanating from the Family Court in

those circumstances be within the parens patriae

power, or the constitutional power, as we would

argue, raises it in this case.

Our submission is that that form of order

restraining the particular operation would not

involve any conflict with enacted law because the

State Act does no more than release the criminal

prohibition. It does not compel Dr X to do it, and

P(2) 133 3/2/93

section 64 and the conferral of parens patriae

power upon the Family Court would, with one

exception, confer the power to issue such an

injunction. The exception is the argument which we

maintain that that would be a law with respect to

welfare, and not a law with respect to marriage.

With respect to my friend, the Solicitor for the Commonwealth, I did not concede to the

contrary, and I refer the Court to what I said at

pages 34 of the transcript.

Two final points. Section 63A(l) really does

not take the matter any further because the prior

question again is whether the particular order, or

proceedings, are capable of being instituted under

this part. Now, obviously there is a question of

the level of characterization. If one

characterizes the order sought in the present case

as an order authorizing the operation to take place, and construes that in the way that the

respondents would argue, well then, naturally, the

power is there and it does not matter whether it is

exclusive or not, 109 would do the work via

section 64 of the federal Act.

But if, as we submit, the correct

characterization of the Family Court's power is

referable to the right of the parents, if any, in

the particular procedure then 63A is just simply

not engaged, and does not take the matter any

further.

Finally, Your Honours, there was some reliance

placed upon section 60H and the regulation that had
been passed, regulation 12B(l). Your Honours will

recollect that is the one that, in effect, defined

"child welfare law" to include State and territory

laws about imprisonment for criminal offences and

the argument was, "Well, look, under section 60H,

coupled with the regulation, the Parliament has	addressed the question of conflict with enacted	State law in a particular context, therefore", so
it is submitted against us, "section 64 can be
construed more broadly than that.".
That is an impermissible approach to statutory interpretation, we submit. You cannot construe
section 64 by reference to a regulation made under
a later enacted provision, namely section 60H. And
I give the Court the reference to Webster v
McIntosh, (1980) 49 FLR 317, at 321, a judgment of
the Full Court of the Federal Court, consisting of
Justices Brennan, Deane and Kelly. If the Court
pleases.

P(2) 134 3/2/94

MASON CJ:  Thank you, Mr Solicitor. The Court will consider

its decision in this matter and in deference to the

respondent's submission the Court will give

expedition to that decision.

AT 2.32 PM THE MATTER WAS ADJOURNED SINE DIE

P(2) 135 3/2/94