JDP v Gop

[1994] HCATrans 189

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S140 of 1993

B e t w e e n -

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Applicant

and

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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
GAUDRON J MCHUGH J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON WEDNESDAY. 2 FEBRUARY 1994. AT 11.16 AM
Copyright in the High Court of Australia
P(2) 1 2/2/94
MR D.F. JACKSON, OC: If the Court pleases, I appear with my

learned friend, MR R.I. MAURICE, for the applicant

in the Family Court, the mother.	(instructed by
Lesley Strong)

MR K. MASON, OC, Solicitor-General for New South Wales: If

the Court pleases, I appear with my learned friend,

MR L.S. KATZ, for the Attorney-General for New

South Wales who made application for the matter to

be removed. (instructed by the Crown Solicitor for

New South Wales)

Subject to directions of the Court, it would be proposed that I would address the Court first.

I understand, Your Honours, that the respondent,

Mr P, is in the presence of the Court and he has

indicated he would wish to address the Court.

MR G. GRIFFITH, OC, Solicitor-General for the Commonwealth:

If the Court pleases, I appear with my learned

friends, MR A. ROBERTSON and MR C.S. STAKER, to

intervene for the Attorney-General of the

Commonwealth to support power.	(instructed by the
Australian Government Solicitor)

MR J.J. DOYLE, OC, Solicitor-General for South Australia:

If the Court pleases, I appear with MS G.L. EBBECK for the Attorney-General for the State of South

Australia to intervene in support of the

Attorney-General for the State of New South Wales.

(instructed by the Crown Solicitor for South

Australia)

MR M.G. NICHOLLS: If it please the Court, I appear for the

Human Rights and Equal Opportunity Commission.
(instructed by the Human Rights and Equal

Opportunity Commission)

The Commission will be seeking leave to

intervene in this matter at an appropriate stage

subject to anything the Court may wish to say about

that.

MASON CJ:  You defer making application until later in the

proceedings?

MR NICHOLLS:  At this stage I think it would be appropriate,

Your Honour, but we indicate our intention to

intervene.

MASON CJ:  Very well. You can make application at some

later stage. If the respondent proposes to address

the Court, then perhaps the respondent should sit

at the bar table if h~ wants to. Yes, Mr Jackson.

P(2)	2	2/2/94
MR JACKSON:	Your Honour, I am happy to go first.	I thought

my learned friend had indicated that as the moving

party he -

MASON CJ:  Does the respondent wish to address the Court

first?

MR P:	No, Your Honour, but I would like to make .....
MASON CJ:	Mr Solicitor for New South Wales?
MR MASON:	I believe Your Honours have just recently been

given copies of the outline of the submissions, and

they are in fact longer than the application book.

The type print has improved from previous

submissions from the same source. Your Honours,

this matter has been removed. I would inform the

Court that arrangements have been made in relation

to the costs of the applicant below, Mrs P, and

there therefore will be no need for any order for

costs to be made, regardless of the outcome of the

proceedings, as regards her situation.

The Court will have seen that the subject-

matter of the proceedings is an application by

Mrs P for orders in the Family Court of Australia

relating to a proposed medical procedure on the

child of the now dissolved marriage between Mr and

Mrs P. The child is aged 16 at present and because

of that age falls within the scope of the

prohibitions in the Guardianship Act 1987 of New

South Wales to which may I take the Court first of

all.

The Act has been amended. It was, when

originally passed, known as the Disability Services and Guardianship Act of 1987. Its present title is

the Guardianship Act of 1987. There have been a

number of amendments, some of which were proclaimed

to coDDDence yesterday. In consequence, what I

believe the Court now has is an informal print up

of the legislation, and if I could use that as the

basis of the reference to which I will take the
Court.	It was handed in this morning to the

tipstaves. It is a document with a disclaimer in

the middle of page 1 of the document.

TOOHEY J: Can we take it, Mr Solicitor, that all the

provisions of the Act, that is, in the form that we

have been given it, are now in operation?

MR MASON:  Yes, you may. The matters that commenced

yesterday are amendments to the Act and to this

particular part effected by the Statute Law

(Miscellaneous Provisions) Act 108 of 1993 and the

Guardianship Amendment Act No 26 of 1993, neither

P(2) 2/2/94

of which amendments change the substance of the

issue as it stood some months ago.

Your Honours, the Guardianship Act, as one can determine from the table of provisions, deals with

what I will term traditional guardianship issues
but in Part 5 of that Act it deals, in particular,
with medical and dental treatment. Section 33 of

the Act defines "special treatment" to mean:

(a) any treatment that is intended, or is
reasonably likely, to have the effect of

rendering permanently infertile the person on

whom it is carried out -

Section 35(1) provides that:

A person must not carry out medical or dental treatment on a patient to whom this Part applies unless:

(a) consent for the treatment has been given

in accordance with this Part; or

(b) the carrying out of the treatment is

authorised by this Part without any such

consent; or

(c) the treatment is carried out in accordance

with an order made by the Supreme Court in the

exercise of its jurisdiction with respect to

the guardianship of persons.

Paragraph (c) can be put to one side immediately

when one looks at 35(1A) because 35(1A) provides

that:

Subsection (l)(c) does not apply in the case of special treatment -

as defined in paragraph (a), and the effect of that

of supreme court jurisdiction in the Family Court	is that there is no question of any cross-vesting
in the context of the present matter. Your Honours
will have seen that the offence carries a significant penalty.

Section 36(1) provides that:

Consent to the carrying out of medical or
dental treatment on a patient to whom this

Part applies may be given:

(a) in the case of minor or major treatment

and this is not one of those -

P(2) 2/2/94

by the person responsible for the patient; or

( b) in any c·ase - by the Board.

So, effectively, the sole authority with respect to

consent of special medical treatment is conferred

upon the Guardianship Board of New South Wales. The Guardianship Board's power to give consent

is dealt with in section 42 and following.	42(1)
provides that:

Any person may apply ..... for consent - and there are procedural mechanisms in that and the

succeeding sections.

Section 45(2) provides that:

The Board must not give consent to the carrying out of special treatment unless it is

satisfied that the treatment is necessary:

(a) to save the patient's life; or
(b) to prevent serious damage to the

patient's health,

or unless the Board is authorized to give that

consent under subsection (3).

And that has no bearing upon the present case.

So 45(2), in formal terms, would appear to erect a higher threshold, certainly a different

threshold, of consent to that which is found in the

Family Law Act with respect to the parens patriae

or welfare powers.

TOOHEY J: Mr Solicitor, there is a step in this that I have

not quite picked up.	What is it that ties in this
particular child with	the provisions to which you
have taken us?
applies to a patient:
(a) who is of or above the age of 16 years;

MR MASON: Yes, section 34, Your Honour, I am sorry. It:

and

(b) who is incapable of giving consent to the carrying out of medical or dental treatment.

"Patient" is, itself, defined. I will find out

where shortly and give Your Honours the references.

Is that primarily the linkage Your Honour was

looking for?

P(2)	2/2/94
TOOHEY J: Well, yes, subject to a couple of questions.	One

is the definition of "patient"?

MR MASON:  Yes.

McHUGH J: There is no statement of fact that the child is

within the powers of the Board, is there, in a

stated case?

TOOHEY J: Well, that is the second question that I had in

mind. What statement of fact is there which brings

that she:  into operation section 34(l)(b), in other words

is incapable of giving consent to the carrying

out of medical or dental treatment.

But, could you just clarify the question of

"patient" before we come back to that one,

Mr Solicitor.

MR MASON:	Yes.
MR MASON:	Yes.  I am wondering whether the definition of

"Act" in the - we may have to fall back on the

disclaimer in the informal print of the Act that

was hastily prepared. In the original Act, this

was Act No 257 of 1987 - and I am looking at the

print as at 17 June 1991 - there was a definition

of "patient" as meaning:

a person on whom some other person is

proposing that medical or dental treatment be

carried out.

TOOHEY J: Where do we find that? It does not appear to be

in the definition section.

MR MASON:	I was saying it was in the definitional provision - it was in section 33(1) in the Act as it stood on 17 June 1991. Act No 26 of 1993 omitted the whole
of 33(1) and inserted a new set of definitions. It
was No 26 of 1993 that was proclaimed yesterday. Those new set of definitions do not appear to
include a definition of "patient".  I think one
must therefore treat "patient" as, whether
intentionally or otherwise, an undefined provision
in the legislation. If undefined, must therefore,
unless one resorts to the prior history of the legislation, treat it as having its ordinary
meaning, namely the persons who would be the
recipient of the treatment which, of course, would
be its dictionary meaning.

TOOHEY J: Could I ask you then or raise with you my second

concern, namely, where is there an agreed statement

P(2) 6 2/2/94

of fact that brings into operation

subsection (l)(b)?

MR MASON:  I think the answer is that there is not in the case stated there - - -

MASON CJ: Well you will need a recital of that fact.

MR MASON: 

We would need a recital. There was an affidavit which grounded the removal application. There was

agreement reached between the parties as to the

relevant facts which grounded the questions and I
would not believe that there would be any issue

about that, but what Your Honour says is quite

correct.

Certainly so far as the capacity to give

consent, and my learned friend Mr Jackson says that
so far as he is concerned there is not issue that

there is an absence of capacity.

MASON CJ: Yes, thank you.

GAUDRON J: When you speak about the parties, Mr Solicitor,

· I take it no representative has been appointed for

the patient?

MR MASON: That is correct. There is an prayer for that

relief in the application in the court below, which

application of course has been removed into this

Court, but no order to that effect has been made at

this point in the proceedings.

GAUDRON J:  We can be sure, can we, that every possibility

will be canvassed by the parties and the

solicitors?

MR MASON:  If you are speaking of the constitutional and the

legal questions, there certainly will be

contradictors in the proceedings here. This Court is of course not being asked to make a decision on

the question of whether the order should be made

nor in any way to preclude the making of an order

appointing the child - - -

GAUDRON J: But all the other issues that are involved in

the constitutional questions will be contradicted

one way or another?

MR MASONz Yes, that is correct. Your Honours, just before

I leave the Guardianship Act or should I say what

remains of the Guardianship Act in the form

presently before Your Honours, I would refer

Your Honours to section 4, in which there is a

statement of some ge~eral principles relating to the functioning of the legislation. Section 32,

which states the objects of Part V, and one can see

P(2) 7 2/2/94

that, in a sense, there is a positive and a

negative object, as one would perhaps expect, and

section 37(1) whi.ch provides, in effect, what r

will loosely term an emergency power, consent is

not required if the medical practitioner:

carrying out or supervising the treatment
considers the treatment is necessary, as a

matter of urgency:

(a) to save the patient's life; or

(b) to prevent serious damage to the

patient's health;

(c) except in the case of special treatment -

there is a proviso which, of course, has been

excluded by the exception.

In the present case it is not asserted that section 37(1) has been engaged and so, subject only

to this question of patient, which I will consider

if I may over the luncheon adjournment, there is,

on the face of the State legislation, a prohibition

which, of course, would be directed at the medical

practitioner primarily and perhaps anyone inciting

or engaging that person from carrying out in New

South Wales the medical procedure for which

permission to carry out is sought in the present

application.

Your Honours, may I then turn to the first of

the five questions reserved set out on page 4 of
the application book. In essence, what that

question raises is a constructional question as to

whether the Family Law Act purports -

to confer on the Family Court of Australia the

power to make an order authorizing a person to

carry out on a child of a marriage medical

treatment in New South Wales that is intended,

or is reasonably likely, to have the effect of

circumstances where the carrying out of the

rendering the child permanently infertile, in

treatment would otherwise be ~ontrary to the

Guardianship Act.

The answer which we submit should be given to that

question is no, and here lies what, in our

submission, is a principal distinction between the

present case and Secretary, Dept of Health and
Community Services and JWB and SMB (Marion's Case),

(1992) 175 CLR 219, because in that case the order

which was sought of the Family Court meshed in with

the common law and the statutory law that was
applicable to the child and the medical
practitioner in question. It is our submission

that the power that was engaged in the Family Court

P(2) 8 2/2/94

through the adoption of the parens patriae or

welfare jurisdiction under the Family Law Act was

not intended nor expressed, nor may

constitutionally be conferred in such a way as to

override any applicable statutory provision that

would, as a matter of the criminal law, prohibit

the particular procedure.

Obviously the prior question which we are

addressing at this stage is the intent or the
proper construction of the powers conferred upon
the Family Court which have been invoked in the
present case. We submit it is the prior question

because presumably the applicant below is seeking

authority from the Family Court with the intent

that if the order is made as sought it will provide

permission that will be sufficient for the

procedure to be carried out, at least in New South

Wales.

Your Honours, in paragraph 5 of the outline we

make the submission that the powers of parents in

relation to the proposed treatment, and by

"proposed treatment" I am using that as a shorthand

expression for what is referred to as a
"non-incidental sterilization" of a mentally

incompetent person, that the powers of parents in

relation to such a treatment are not altered by the

Family Law Act. May I take the Court to a passage

Your Honours Justices Mason, Dawson, Toohey and	at pages 235 and 236 in the majority judgment of
Gaudron. At about 7 lines from the top of the page Your Honours state:

In the case of medical treatment of those who

cannot consent because of incapacity due to

minority, the automatic reference point is the

minor's parent or other guardian. Parental

consent, when effective, is itself an

exception to the need for personal consent to

medical treatment.

Then commences a discussion of the powers of

parents as guardians to consent:

The sources of parental power, including

the power to consent to medical treatment of

the child, where the parent is also a guardian

of a child of a marriage, are the Family Law

Act, the common law and the Code.

Then Your Honours turn to the Family Law Act and

set out section 63E(l) and (2) with emphasis upon

the words "apart from this Act" in 63(1).

Continuing, Your Honours state:

P(2) 9 2/2/94

Section 63E(l) operates to identify the

guardian, as against the world, as the person
with the responsibility defined; it

delineates the rights and duties of the

guardian and the custodian of a child if they

are different persons; and, possibly the
subsection functions to impose the relevant

duty on the person who is the guardian. It

also vests in the guardian rights and duties

which are, ordinarily, the incidents of

parenthood at common law and impliedly
preserves any specific rights and duties

conferred by the general law and legislation other than the Family Law Act on a guardian.

This preservation is achieved by conferring on

the guardian "all the powers, rights and

duties that are, apart from this Act, vested

by law or custom in the guardian". The phrase

"long-term welfare" in 63E(l) does not of

itself indicate the content of a guardian's

duty.

At page 290 in the judgment of

Justice Brennan - Your Honour of course taking a

different view of the common law position of

parents - said three lines from the top of the

page:

In my view, "the right to have the daily care

and control" of a child under eighteen years

and "the right ••. to make decisions" in

relation thereto referred to ins 63E(l) and

(2) should be understood in the context of the

common law and do not subject such a child to

greater control and authority than that

possessed at common law by parents who have

custody. That being so, and subject to some

presently irrelevant variations, the effect of

s 63E(l) and (2) of the Family Law Act is, as

regards infants in the custody of their

parents, to grant statutory recognition and

confirmation of the common law powers, rights

and duties of such parents. In the absence of

any Northern Territory statutory provisions

dealing with consent to non-emergency surgery

or medical treatment in the case of an infant,

it is necessary to identify the nature and

extent of those common law powers, rights and

duties for the purpose of answering the
questions before the Court in this case.

BRENNAN J: That incisive statement I think should be

attributed to my brother Deane.

MR MASON:  I am sorry. Your ijonour's statement is at

page 278. Maybe there should have been a

disclaimer elsewhere. The passage in Your Honour's

P(2) 10 2/2/94

statement is at 278. After setting out 63E(l) and

( 2 ) :

The responsibilities and powers of

parents extend to the physical, mental, moral educational and general welfare of the child.

They extend to every aspect of the child's

life. Limits on parental authority are

imposed by the operation of the general law,

by statutory limitations or by the

independence which children are entitled to

assert, without extra-familial pressure - Your Honour Justice McHugh at 318 agreed in effect

with the majority discussion of section 63E(l) and

( 2 ) •

Nor, we submit, has the Family Court been

given power under section 63E(3) or elsewhere to

enlarge the powers of a guardian so that he or she can consent to the non-incidental sterilization of

a child. I read only, if I may, the passage at

pages 257 and.258 in the majority judgment. At the

bottom of page 257 Your Honours said that:

we should add that, in our	view, the Family
Court has no power under s	63E(3) of the Act
to enlarge the powers of a	guardian under
s 63E(l) so that he or she	can consent to the
sterilization of a child.	We agree with
Nicholson CJ that:

"the subsection is designed to give a court

flexibility in the assignment of custodial and

guardianship powers to parents so that, in
appropriate cases, powers normally regarded as

incidents of guardianship can be conferred

upon the custodial parent and vice versa but I

do not think that the section operates to

extend the court's powers."

There was, however, some difference between

Your Honours as we read the judgment in Marion's

Case about the extent of the parens patriae

jurisdiction but the majority opinion, in our

submission, was that it is not confined to what

lies within parental authority.

The passages that are referred to there,

page 259 in what I will call the majority judgment
and 302 in the judgment of Your Honour

Justice Deane, refer to some English cases, particularly Your Honour Justice Deane, and they

include the case where an injunction was granted to

restrain a newspaper from publishing information

about a child; clearly, in other words, an

P(2) 11 2/2/94

interference with the common law rights of a third

party.

Another case that is cited is re R, (1992) Fam

at pages 24 and 25. That was a case where

treatment was given, as it were, against the will

of a 15-year-old girl who, at least when she was in

a competent state, had expressed the view that she

did not want to have treatment. The court there
held that the limits of what are referred to as

"Gillick competence" did not set the limits of the

parens patriae power of the court.

But none of the cases that are cited by Your Honours, nor in our submission, do any other

case, take the parens patriae power of the courts

beyond being able to interfere with the common law

rights of parents and third parties with reference

to a child. None of them involve contravention of

a statute and, as this Court held in Marion that

the intent of the Family Law Act amendments

following the Watson Committee Report was to confer

the parens patriae jurisdiction upon the Family

Court, then one should infer, ~n our submission,

that it was to invest that jurisdiction, save only	to the exclusion of the wardship, the need to make
the child a ward of a court, then the nature of the jurisdiction has not changed by its investiture in
the Family Court. We submit that there are, in
fact, English authorities to the effect that the
parens patriae jurisdiction is not exercisable so
as to overturn statutory prohibitions.

I may, if I will, read only one passage, that

in A. v Liverpool City Council, (1982) AC 363, at

page 373, in the speech of Lord Wilberforce. In

this and the case of Rew, (1985) AC 791, there is

a discussion about the availability of the parens patriae jurisdiction to interfere with what I may describe as a code of care vested in local

authorities. Not just the vesting of guardianship,

but a vesting of powers that would cover the care	and control of children in care. And in each of	these two cases the House of Lords held that the
exercise of powers which had been conferred
exclusively, on a reading of the legislation, upon
the local authorities operated to preclude, as a
matter of statute, the availability of the parens
patriae jurisdiction, and Lord Wilberforce, at
page 373C said:

The court's general inherent power is always

available to fill gaps or to supplement the

powers of the local authority: what it will

not do (except by way of judicial review where

appropriate) is -to supervise the exercise of

P(2) 12 2/2/94

discretion within the field committed by
statute to the local authority.

And, of course, the present case is, subject to the constitutional issues, a much stronger one. We are

not dealing with a code where there is any

uncertainty about what authority remains. In the

present case there is an absolute prohibition upon

the particular procedure unless a condition which

does not involve parens patriae jurisdiction is

satisfied. And the principle stated in the dictum

from Lord Scarman that we quote at the bottom of

page 2, namely:

The wardship jurisdiction is not to be used to

avoid the effect of enacted law -

is the one that will govern the proper

interpretation of the powers conferred upon a

Family Court by section 63 and 64 of the Family Law

Act, the provisions that were considered in

Marion's Case itself.

Section 64(l)(c) was the particular provision

which, albeit with less than felicitous drafting,

operated to engage the welfare or parens patriae

jurisdiction. Welfare is referred to in the

opening words of 64(1):

In proceedings in relation to the custody,

guardianship or welfare of, or access to, a

child.

And subsection (c):

subject to paragraphs (a),

which is relevant,

(b), (ba) and (bb),

which are not,

the court may make such order in respect of

those matters as it considers proper,
including an order until further order.

In our submission, that provision does not

purport to confer on the Family Court power to make
orders authorizing the performance of acts which
are prohibited by statute, whether Federal or

State. Two of Your Honours addressed that

particular point in Marion. Justice Brennan at

page 285 to 287 - I will not, if I may, read the
whole of the passage - and Justice Deane at

page 308. Justice Brennan at 285, about point 6:

P(2) 13 2/2/94

But the jurisdiction with respect to welfare can hardly be construed as authorizing the

Family Court to make whatever order a judge

may deem to be for the welfare of a child,

irrespective of the general law or the rights

of other people.

We would add, of course, or the obligations of

other people.

The "welfare" jurisdiction of the Family

Court -

Your Honour said -

does not permit the making of orders which

exempt the child from compliance with laws

that bind him or her or which remove the

protection which laws confer on the child.	In
particular, the terms in which ss. 63(1) and

64(1) are drawn do not suggest that the Court

has been invested with a power to authorize an

invasion of the personal integrity of a child
greater than the power possessed by the

child's custodians or guardians.

Justice Deane, at page 308, in the concluding

paragraph of Your Honour's judgment adverted, about

five lines down the judgment, to a submission which

I made in that case:

that where, as in that State -

New South Wales -

special statutory provisions exist prohibiting

sterilization procedures on a child under

sixteen years ••••. those statutory provisions

are applicable to control the general welfare

jurisdiction of the Family Court.

And Your Honour said:	It is unnecessary to express a concluded view
about the correctness of that submission
since, as has been seen, there is no such statutory provision applicable in the
Northern Territory.

Your Honour said:

I would indicate that I see considerable force

in the submission. Certainly, my conclusion

that there are circumstances where a

sterilization procedure can be authorized by

parents in the Northern Territory for other

than urgent medical reasons without the

P(2) 14 2/2/94

consent of the Family Court or the Supreme

Court of the Territory should not be understood as automatically applicable to a

jurisdiction, such as New South Wales, in

which special statutory provisions have been

enacted.

In our submission, the power that is conferred

upon the Family Court under the welfare

jurisdiction, as discussed in Marion's Case, does

not, as a matter of intention, arm the Family Court

with power to confer an absolute right. Here we

would seek to pick up a passage in Commercial Radio

Coffs Harbour v Fuller, (1986) 161 CLR 47, at

page 56, where three of the Justices in turn cited

with approval a judgment of Justice Mason in Ansett

Transport Industries v Wardley. The passage would

be, I am sure, very familiar to Your Honours, and I

will not read it but it is page 56, commencing

about point 3 and going to the bottom of the page.

In the present situation and before one gets

to any question of, as it were, conflict with State

and federal law, we would submit that it is

inconceivable that the Federal Parliament intended

to confer on the Family Court power to order a

convicted child's release from gaol, simply because

it was in the welfare or the best interests of the

child, or the administration of a prohibited

imported drug. Again, we have focused upon a

federal offence, as it were, to test the question

of interpretation.

McHUGH J: But are they true analogies? Here, in the

absence of the New South Wales statute, you would

not be arguing, would you, against the authority of

the Family Court to make an order such as is

sought. If you start with that proposition, then

you have to contend that the power which Parliament

intended to confer on the Family Court was to vary

depending upon the various State regimes. So that

whichever State the Family Law Court was operating

in they would have a different power.

MR MASON:	No, the power that was intended to be vested in the Family Court was intended to operate within the
scope of the constitutional authority of the Family Court which, in Marion's Case, as engaged by
section 122 and according to the majority judgment
by the marriage power as well.  But it is our
submission, which I will seek to develop, that the
reasoning of the majority indicates that the
marriage power was engaged because of the consonance with the positive permission given to
the parents under the enacted and common law of the
Northern Territory. ·

P(2) 15 2/2/94

Ultimately, the constitutional scope of the

court's power is - leave aside the territory

problem for a moment - limited by the marriage
power and that, therefore, confines the court's

function under parens patriae to doing matters

relevant to the consent role of parents if they

have a consent role. In Marion's Case, the common
law as, if I may say so, developed in Marion's Case

gave parents a right to consent to this treatment

subject to judicial pre-endorsement.

The statute law said that from a doctor's

point of view the operation was not a trespass or

an assault if it had the proper consent of a

guardian. I do not think they were the exact words

but that was the effect of it.

All of the judgments, as we read them, were at

pains to demonstrate that what the Court was doing

was giving the parents the authority to make a

consent which the common law and the statute law

gave efficacy to. We do not, with one exception,

with respect, cavil with that approach but we say

it has no bearing upon the present case where

parental consent under the general law has no

relevance as regards an operation taking place in

New South Wales. Ultimately, perhaps the answer

lies in the efficacy of the order that is sought
rather than in a direct clash of power or
authority.

But one does not engage section 109 issues until one construes the federal legislation and

there is in Marion's Case, in our submission, no

support, nor is there in section 64 itself any
support for the proposition that the Family Court,

though given parens patriae jurisdiction, was

intended to be given parens patriae jurisdiction of

any different nature of that generally understood,

save only for the power to make a child a ward of

court nor was there any intent in the Federal

Parliament to confer power that that jurisdiction,

expressed in the very general wordage of 64(1C),

could be used to provide a key to open any

legislative door, be it State or Federal. So to

look at the, as it were, different operations State

by State is, with respect, to jump in too early, as

it were, with the constitutional question when one

is still at the constructional question, and so

construed the legislation operates with perfect

generality both on Federal, State and Territory

laws.

TOOHEY J:  On your argument, Mr Solicitor, constitutional

questions would not arise.

P2 16 2/2/94

MR MASON: Correct. If -the first question is answered as we

would submit, then the other questions become

strictly unnecessary to be answered.

TOOHEY J: But even as a matter of construction, it is not

clear to me, perhaps having regard to the way in

which question 1 is framed, whether you are saying

that the Act does not purport to confer on the

Family Court the power which the question speaks

of, where that treatment would be contrary to some

State provision, or whether you are really saying

the Act does not purport to confer on the

Family Court that power, whatever State law might

say about the matter.

MR MASON: State or Federal law? In a sense - - -

TOOHEY J: Well I am staying with State law for the moment.

MR MASON:  Yes, well question 1 was an attempt to focus upon

the particular issue in its having regard to the

particular scope of the present State law.

TOOHEY J: Yes, I understand why the question is framed in

that way against the statutory background, but in fact if the question 1 stopped at line 6 with the

word "infertile", you would still be arguing for a

no answer, would you?

MR MASON:  I would submit that one cannot answer that

question in a legally or constitutionally

meaningful way, unless one knows what are the

common law and statutory powers of the guardians,

because it is only against the background of those

powers that the Family Court's power is engaged. I

am not saying at this point of our submissions that

the marriage power cannot alter the powers of

parents, although we do later say there are obvious

limits to that.

TOOHEY J:  I was deliberately not taking you into the area of constitutionality, trying to stay within the

question of construction.

MR MASON I Yes.

TOOHEY J:  I rather took you to be saying that, although in

this particular case there are statutory provisions

of New South Wales which are relevant, in any event

the Family Law Act does not purport to confer that

power.

MR MASON:  Yes. I think I may answer your question, "It

does not," particularly when one thinks of the form

of the order that was made in Marion's Case itself,

because there the ultimate order and the, as it

were, the explanation for the form of the order is

P(2) 17 2/2/94

discussed at 261 and 262 of the judgment where

Your Honours in the majority said that:

But, what effect does an order ..... have

on State laws? We have already indicated that

authorization is a declaration that

sterilization is in the best interests of the

child. When made, it provides the framework

in which persons (including, of course,

parents) appointed for the limited purpose of consenting in accordance with the declaration

may give any requisite consent on behalf of

the child.

Now, we read that, although it is answering

questions about the operation upon State law, as
saying something about the nature of the
jurisdiction of the Family Court, and the limited

nature, having regard to the terms of 64 and the

constitutional limitation upon the Family Court.

DEANE J:  How does that fit in with the answer to

question 2A which the Court gave?

MR MASON: Well, question 1 was restricted to the Northern

Territory and the facts of Marion's Case itself.

In Marion's Case itself, requisite consent could be

given and had efficacy under the common law and the

statutory law if given by parents.

DAWSON J: That was a consent, which is equivalent to

personal consent, which would convert what would

otherwise be an assault, not an assault.

MR MASONa I am sorry, I did not hear.

DAWSON J: The reasoning went that parental consent could be

substituted for the actual person's consent so that

what would otherwise be an assault, a non-assault

by reason of the consent.

MR MASON1 Yes, and the Court said that the common law was

that parental consent was not enough with respect

to this form of procedure, but needed prior

approval of a court, but that court could include a

parens patriae court such as the Family Court. But

it was by reference to an authority which appeared

outside of the Family Law Act, namely, in the

common law and the statutory law of the Northern

Territory, that the parents could give consent and the court authorized the procedure through that

mechanism.

Perhaps the submission becomes clearer if I

could briefly take the Court to some of the

passages that are referred to at the bottom of

paragraph 7 of our outline. Firstly, pages 232 and

P(2) 18 2/2/94

233 in the majority judgment under the heading, "Assault, consent, medical treatment":

In a case such as the present one, it

primarily the prospect of surgical
intervention which attracts the interest o:
the law. This is because the law treats a~

unlawful, both criminally and civilly, cone which constitutes an assault on or a tresp,

to the person. Therefore it is the legali·

of the specific medical treatment amountin<

a hysterectomy and ovariectomy which must l

the focus of inquiry.

Then jumping down a bit Your Honours then set 01

the Criminal Code:

The Criminal Code Act 1983 provides tl

an act is unlawful if it is done "without

authorization, justification or excuse".

Then section 26 of the Code is referred to:

(1) An Act ••... is authorized if it is done

made or caused -

(a) in the exercise of a right granted or

recognized by law;

.••.• or

(d) subject to subsection (3), pursuant to

authority, permission or licence lawfully

granted.

At the very top of page 233:

Section 188 of the Code makes an unlawful

assault an offence. A person who unlawfully

causes grievous harm to another is guilty 0~

crime.

I have already read the passage at 235 and 236

where Your Honours pointed out that section 63E

not relevantly enlarge the rights of the parent

Then 261 to 263, the passage I had in part read Your Honour Justice Deane in particular, at the

bottom of 261. May I pick it up at the top of

because that is where I stopped before:

Accordingly, there is no question of

overriding State laws about assault which

require consent to surgery. Although the criminal law of the Northern Territory is

collected in a Code, there are examples of provisions resting on law from other sourc

Parental consent to other kinds of treatme

P(2) 19 2/

itself, is-an exception to personal consent

not provided for in the Code. Although

parents have a duty to provide necessaries of

life, there is no Code provision allowing for

parental consent to treatment of minors. 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.

Reference has already been made in this

judgment to provisions of the Code which make

it clear that, if there is an order of the

Family Court authorizing sterilization, made

within power, no criminal consequences are

likely to ensue for the medical practitioner

who performs the operation. There would be no

unlawful assault because the act was

authorized.

Then the very last paragraph of the judgment just before the answers:

For present purposes it is enough to say that an order of the Family Court authorizing

a sterilization operation would emanate from a

constitutionally valid Commonwealth law and

that the order would have an effect, in

conjunction with the relevant Territory

legislation, which would remove the operation

from the area of the criminal law.

Justice Brennan at 284 - Your Honour of course took a different view about the scope of the common law powers of parents. At 284 Your Honour in the

middle of the pages

Moreover, the assumption of a power to authorize non-therapeutic sterilizations

without legislative authority is tantamount to the assumption of a power -

I am sorry, I will leave that passage. It is eight

lines up from the bottom of the page:

It is one thing for a court to exercise the power possessed by parents and guardians to

authorize surgical procedures on a child and

for the criminal law to accept that

authorization, as it accepts an authorization

by the parents or guardians, to be the

equivalent of consent to what would otherwise

be an unlawful application of force. It is

another thing for a court to exercise an

exclusively curial power to authorize a

P(2) 20 2/2/94

surgical procedure and to require that authorization to be treated both as an

effective consent and as conclusively
determining the lawfulness of the procedure.

In the former case, the criminal law is simply

construed to take account of the parental

power which has always been recognized; in the

latter case, protection which the criminal law

has been fashioned to provide is undone by the

exercise of a novel power, created by

declaration of the instrument of government

claiming to exercise it.

However, in the Northern Territory,

s 26(l)(d) of the Code furnishes a legislative

exception to criminal liability which can be

filled by any valid authority. Even if it
were right to hold that a Court in the

Northern Territory could validly declare that its authority was sufficient to satisfy

s 26(l)(d), the same view could not be taken

by courts in States and Territories where

statute or the common law does not provide

that court authorization is a justification or

excuse.

Justice Deane at 294 and 295, four lines up from

the bottom - - -

DEANE J:  Mr Solicitor, is not all that matters, if it be

the case, to answer the question asked by

Justice Toohey, that the majority judgment says

that apart from applicable statutory prohibitions,

the Family Law Act does confer jurisdiction on the

Family Court to authorize a procedure involving

sterilization?

MR MASON:  We would say it went further. It said that the

Family Court's power was conferred and engaged

because the common law and statute law gave

parental consent a role to play.

DEANE J:	I see.
MR MASON:	Because it was only through parental consent that

the criminal law procedures designed to prevent

unlawful assault on anyone were - - -

DEANE J: So, the majority judgment says nothing to the case

where there is no applicable or relevant statutory

provision?

MR MASON: That is my submission. A fortiori where the

applicable provision says to the contrary.

DEANE J: Well, I had not read it that way but I am not

disputing what you say is correct.

P(2) 21 2/2/94

MR MASON:  It may become clearer or otherwise when I move to

the constitutional provision, because there all of

Your Honours in the majority said that there was no

question about transgressing the scope of the

marriage power and Your Honours did not elaborate

on the reasoning on that statement but that

statement, in my submission, should be understood

against the background of the matters which the

rest of the judgment was at pains to demonstrate,

namely that parental consent had a role under the

law and that the parens patriae jurisdiction as

invoked with respect to this child of a marriage

could link in with that consent role.

DEANE J: While I am interrupting you can I ask you this,

and this is directed to the question whether

construction can, as it were, determine this matter

and make constitutional issues irrelevant? What

would you say in this case as to the jurisdiction
of the Family Court to deal with the application by

either saying, "Sterilization would not be

justified", or alternatively, "Sterilization would

be justified subject to the approval or subject to

the consent of the New South Wales Guardianship

Board"?

MR MASON:	That would, in our primary submission, be outside of the constitutional marriage power, or the
referred power under the reference of powers of the
Family Court.
DEANE J:	I was really asking as a matter of construction.

MR MASON: I am sorry. As a matter of construction - - -

DEANE J: Assume one accepts your submission that the Act

does not authorize the overriding of the expressed

prohibition in the New South Wales legislation,

does it still leave a question whether the Family

Court has jurisdiction to disapprove or,

alternatively, to approve subject to consent.

MR MASON: Yes. To disapprove and with the consequence

obviously being then that consent by the
Guardianship Board would be said to be inconsistent

and irrelevant.

DEANE J: To say to the parents:  "You shall not apply"?

MR MASON:  Yes. I would submit that (a) because of the

constitutional limitation one would not infer that

intent. But to go back to the bald question of

whether that is the power that is conferred, I

think I would have to concede, really, in the heart

of a parens patriae p9wer of a court to say that a

particular operation on a particular child should

not take place.

P(2) 22 2/2/94

DEANE J:  I am not trying to bind you to an answer now, but

I am just wondering what your approach was to it.

MR MASON:  Yes.

BRENNAN J: The question that Justice Deane asks you really

focuses attention on the danger of using the term

"power" rather loosely. Power to make an order

having what legal effect? I mean, that is

something which thus far your argument has not

addressed.

MR MASON:  We have understood by the intent of the

application that if the orders as sought are made

the operation may take place in New South Wales.

So, clearly, unless the applicant is to be presumed

to be seeking a futility, the Family Court has been

resorted to in order to avoid the measures of the

State law and to provide an effective authority for

the doctor because, after all, it is the doctor who

will do the procedure, not the parents.

BRENNAN J: That seems to me to require some further

definition and what is there to stop the doctor

performing the procedure? The answer is, there

must be some law somewhere which does say, so that

the power, in the way in which you are putting it

now, is a power to say either an exception shall be

invoked or the law shall not apply.

MR MASON: Yes. we, of course, say that that is reading too

much into the section and if it did have that it
would be outside judicial power and is also outside

the marriage power, but - - -

BRENNAN J: In that event, it is impossible to avoid the

constitutional question, because the only relevant

power that is being inquired after or being sought

or invoked, is a power to outflank or override a

State law.

MR MASON:

Yea. I am certainly not seeking to avoid the

constitutional question, because that is the - - -

BRENNAN J: No, I appreciate that, but it does seem to me

that if that is the relevant power that we are

concerned with here, there is a question in

considering the judgments in Marion to see whether

the power, which the majority judgments spoke

there, is a power of the same kind.

MR MASON:  Yes, and in our submission, they were not looking

at any such power and as evidence of that, apart

from the passages I have read, are the stress that

the Family Law Act does not purport to enlarge the

powers of guardians, ·the reference to how it meshed

in with the common law and statute law authority

P(2) 23 2/2/94

and, we would say, the conclusion stated about it

being clearly within the marriage power, a

conclusion to which Your Honour Justice Dawson

joined, and here we come back to the constitutional

issues which, in our submission, must be read

against the facts of the particular case and

against the very narrow function which the

Family Court had invoked in Marion's Case, compared

to the function which is being invoked in the

present case, if one looks at the substance of the

matter.

Your Honours, I think I had read from

Justice Brennan and I was reading passages from

Justice Deane's judgment. Justice Deane, at

page 294, about four lines from the bottom to about

five lines from the top of page 295; there is the

passage at page 308, which I have already read,

where Your Honour said:

my conclusion -

here does not necessary follow for States like New

South Wales.

Justice McHugh, at page 317, at the very

bottom of the page, said at about eight lines up:

If an operation·or treatment is to be

performed or carried out in such a case, only

a court of general jurisdiction exercising the

parens patriae jurisdiction or the the Family Law Act 1975 can authorize the

operation or treatment. In such a case, the

consent of the court has the same effect in

law as a valid consent given by a parent or a

child with the requisite capacity.

Our submission is that where consent is

legally irrelevant, as it would be for example in a

maiming to become a beggar situation, or as it is

under the State law of New South Wales, then

Your Honour's remarks have not given authority in

the present case for the orders that are sought in
the present case. At 324 Justice McHugh dealt with

the law of the Northern Territory:

So far I have dealt with the question of

the common law rights of the parent -

You referred to New South Wales and South

Australia.

curial consent be obtained for the

In the Northern Territory, section 21 of the

P(2) 24 2/2/94

sterilization of an intellectually disabled

adult, but no specific legislation regulates

the sterilization of minors. Consequently,
the lawfulness of a consent to the

sterilization of a minor in the Northern

Territory depends upon the common law, subject

to any general statutory provisions which are

applicable to such cases.

About five lines up from the end of the last

paragraph:

Thus, it would be a "defence" to a charge

brought under any of these provisions in

respect of the sterilization of a minor that

the procedure was authorized by the common

law. For the reasons I have already given, a

consent given by the Family Court is also a

"defence" to any such charge.

For those reasons the constructional question

should be resolved in favour of section 64(1C) not purporting to arm the Family Court with power that

would have the scope of providing an efficacious

order in the present case.

May I then turn to the second question which

raises an issue under Chapter III of the

Constitution which assumes against the first

argument that there was power in the Family Court

through the parens patriae jurisdiction in effect

to override the enacted law relating to the

protection of this particular child in New South

Wales. Our submission is that section 64(1C),

particularly in the light of the generality of the

terms which it contains, would not, on that

hypothesis, involve a valid conferral of

chapter III authority upon a Federal Court.

GAUDRON J: Have you not put the question around the wrong

way?	I mean, if it validly confers such power,
then the criminal law of the State is to that

extent inconsistent and invalid.

MR MASON:  But you do not get to 109 until you get a valid

federal law. If the federal law in this case has

no operation on the facts of the present case,

either because it does not purport to, or because

it is generally invalid because it invests non-

judicial power in the federal court - - -

GAUDRON J: But your proposition that it invests non-

judicial power is premised on the validity of a the

State criminal law.

MR MASON:  No. I submit it is· premised upon the assumption

that section 64 confers parens patriae

P(2) 25 2/2/94

jurisdiction, which in general terms may override

any enacted law, State or federal. So it is

saying, if the Family Court thinks it is in the
best interest of a child to be freed from the
enacted law applicable to that child, then it may
make such order in respect of that matter as it

considers proper. And, a power conferred in those

terms would, in my submission, not represent an

invocation of the judicial power, but would be an

invalid attempt to confer on a court a power to

dispense with the law, and thus offend Chapter III.

Your Honours, I will not read the references

collected in paragraph 9 about the general

principle which we are seeking to have applied in

the present case. I do not anticipate that there

would be dispute about that. The question is
whether it is engaged on the interpretation of

section 64(l)(c) that one is assuming the Court

arrived at. In our submission, the assumption of a

power, paragraph 10, to dispense with compliance

with the criminal law, a fortiori by reference to

the general criteria in section 64, is not
consistent with the proper function of a court.

Now, Your Honour Justice Brennan so held in the passages referred to in Marion's case, at

pages 284 and 287. It was because
Your Honour Justice Brennan took a different view

of the connnon law that it was, of course, necessary for Your Honour, whereas it was not for the others, to address this issue. But the passage at page 284 connnences in the middle of the page:

Moreover, the assumption of a power to

authorize non-therapeutic sterilizations

without legislative authority is tantamount to

the assumption of a power to dispense from

compliance with the criminal laws which

otherwise protect personal integrity.

Justification by court order for what is

otherwise an offence is neither an orthodox

doctrine of the connnon law nor consistent with
the proper function of a court. Though some

statutes create offences exemption instances

in which a court is satisfied that particular

circumstances exist, the proposition that a

court can assume a power to dispense from the

criminal laws which protect personal integrity

when the judge believes the dispensation is
for the welfare of a child is truly judicial

imperialism.

At page 287 at about point 6:

A novel power to authorize a doctor to remove

the organs of a child, exercisable on the

P(2) 26 2/2/94

applicati~n of any interested person according

to the repository's opinion as to the child's best interests does not bear the character of

a judicial power which might be exercised

under a jurisdiction to hear and determine a	"matter". Unless such a power were a
recognized incident of the parens patriae
jurisdiction so that it formed part of the
well-known and traditional exceptions - and
clearly it is not - a law of the Commonwealth could not commit the exercise of such a power
to a court.

Your Honours, there are other passages which we

have cited about that general proposition, although

not specifically focusing on this particular

problem. There is one at the bottom of page 4 of

our outline from Your Honour Justice Deane's

judgment in Polyukhovich which, we would submit, is

capable of application to section 64 on the

assumption that one is making as to its

construction.

It then becomes a question of characterizing section 64(l)(c) as to whether the nature of the

assumed power is by history or tradition or by the

form in which it is conferred, one which can be

properly characterized as judicial power as this

Court has expounded it. Your Honours, I have a

small bundle of the older cases referred to in

paragraph 12 which I think has been given to the

Court, and if I may just very briefly take the

Court through those documents.

We submit that, in effect, section 64 on this

assumption is a dispensing power, a power on vague.

criteria given to the court to dispense with the

law whenever it thinks it is in the interests of

the child and foreign to the judicial power

traditionally understood. The case of the Penal

Statutes in 1605 speaks of the power of

dispensation being, in effect, an inalienable

aspect of the Crown, not even capable of granting

over.

BRENNAN J: I thought the Crown itself had been disabled

from dispensing with the law.

MR MASON:  The Bill of Rights which is the next document

refers at page 4 of the bundle to the declaration

of rights which is set out about the middle of the

page and speaks about:

1. That the pretended Power of suspending of

Laws •.... is illegal.

P(2) 27 2/2/94

2. That the pretended Power of dispensing

with Laws, or the Execution of Laws, by regal exercised of late, is illegal.

Then the enactment itself which proceeds on the next two pages in section XII right at the end

provides that:

from and after this present Session of

Parliament, no Dispensation by Non obstante of

or to any Statute, or any Part thereof, shall

be allowed .•... void •.... except -

it be allowed in statute. I am certainly not

suggesting that the Crown has a common law right of dispensation, but I am submitting that historically

the power of dispensation controlled by statute has

been exercised exclusively by the Crown, as has the

power of pardoning which is very closely analogous

to the power of dispensation. The passage from

Maitland's Constitutional History next follows at

page 8 and following and Anson is also included.

May I briefly refer to one passage in

Blackstone's Commentaries which Your Honours will see at page 22 of the bundle, about point 7 on the

page, where it is said that:

it would be impolitic for the power of judging and of pardoning to center in one and the same

person. This (as the president Montesquieu

observes) would oblige him very often to

contradict himself, to make and to unmake his

decisions: it would tend to confound all
ideas of right among the mass of the people;

as they would find it difficult to tell,

whether a prisoner were discharged by his

innocence, or obtained a pardon through

favour.

Then there is the American authority to which we

refer, Bx parte US, where a mandamus issued to a

court that had convicted and sentenced a person and

then, not by way of conditional suspension but by

way of total abrogation of a sentence just imposed,

in effect respited that which the law as declared

by the court had just imposed. The Supreme Court

of the United States said that the district court

had exceeded its jurisdiction in doing that, one

reason of which was that there was an invasion of

the exclusive executive power of pardoning.

Another analogy which we refer to, towards the

bottom of page 6 of the outline, is the power to

grant a licence or wa·rrant to do that which is

otherwise prohibited. Your Honours will recollect

P(2) 28 2/2/94

Hilton v Wells,.the cas& of the warrant to phone tap where this Court divided on whether that power had been given to the Court, in which case there was a consensus that it would be invalid or to the

judges of the Federal Court as personae designatae,

of the Court in Hilton and the majority in Jones v Commonwealth held the law to be valid and not	and it was on that latter basis that the majority
contravene Chapter III?

We would also submit, as we do in

paragraph (d), that the creation of new rights and

obligations, otherwise than by reference to legal

principle or objective standards, is outside

judicial power unless there is an analogy with the

exercise of some traditional judicial function.	We
will not, unless the Court wishes to, take you to
the passages that are cited there for that proposition. In our submission, the ambit of the
power in section 64(l)(c), on the assumption that

one makes that it is intended to go beyond the role

of consenting that a parent had under law, would

be, in effect, a dispensing power and invalid.

We then return to a more specifically focused constitutional question, namely the constitutional

validity of the exercise of jurisdiction with

respect to this particular child. As we would

submit and understand the position to be, there

will be no section 109 inconsistency as between a

court order and a State Act. The inconsistency is

between competing statutes and the analogy of what
happens with federal awards if, of course, the

clearest one. But it is only where the federal

statute has been, as it were, constitutionally

engaged with respect to a constitutional party that

there is then a possibility of conflict because of
the authority which the Act confers upon the court

to give the licence which, on the assumption we are

making, would dispense with the State law.

Thia would appear to throw up two issues

relevant in the present case, namely the scope of

the marriage power, whether the jurisdiction

invoked in the present case can be based on the

marriage power, in other words, whether the fact

that this is a child of the marriage is sufficient

to justify the authority invoked in the present situation. And, secondly, whether the referral of

powers has in some relevant way enlarged the

constitutional authority of the Family Court.

I am not sure whether my friends are going to

be arguing that the referral of powers does, and I

will have a word to them over lunch to see whether

I will need to develop that.

P(2) 29 2/2/94

As to the marriage power, Your Honours, in

Marion's Case at page 261 Your Honours in the

majority at about the middle of the page, quoted

from Fountain v Alexander and Marion, of course, was a child of the marriage although it was in a

Northern Territory context:

In Fountain v Alexander Gibbs CJ said:

"The power of the Parliament to make laws with

respect to marriage does not extend to laws

for the protection or welfare of the children

of a marriage except in so far as the occasion

for their protection or welfare arises out of,

or is sufficiently connected with, the

marriage relationship."

Clearly there are limits on the scope of the welfare jurisdiction, as with the custody and

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

It is clear enough that a question of

sterilization of a child of a marriage arises

out of the marriage relationship and that the
sterilization of a child arises from the

custody or guardianship of a child.

Therefore, jurisdiction to authorize a	sterilization is within the reach of power of
the Commonwealth, quite apart from the
operation of s 122 of the Constitution.
Your Honours, it is respectfully submitted

that a question arises as to in what context that

statement is to be understood1 is it to be

understood confined to the factual context of

Marion'• Case, whereas the Court was later at pains

to spell out? There was under the common law and

statute law, authority in the parents to consent

and that what was being engaged was the

Family Court's power to open the key to parental

consent. If that is what the statement is

addressing, we would nevertheless still

respectfully submit that it is outside of the

marriage power. If, however, the statement about being within the marriage power carries over to a

situation where under the law the parent does not

have power to consent to the operation, then our submission is, a fortiori, that the Family Court cannot constitutionally be invested with

P(2) 30 2/2/94

jurisdiction, in effect, to authorize a doctor to

do that which the criminal law says may not occur.

DAWSON J: That was not the question there, of course, was

it, at all?

MR MASON: Well, Your Honours, that is certainly our

submission, but - - -

DAWSON J:	But the majority were at pains to marry the power which they said existed to the Family Court with
the Northern Territory ordinance relating to a
different - - -
MR MASON:	Yes, well that is my submission and that is how

those remarks should be - - -

DAWSON J: But if the definition of "assault" had been

different such that it was quite plain that no one

other than the victim, himself or herself, could

consent, then the whole of the reasoning in

Marion - well the case just would not apply to that situation; is that not right?

MR MASON:  I so submit, but we would seek nevertheless, with

respect to argue that, even on that assumption, the

matter is outside the marriage power,

notwithstanding, with respect, that statement,

because of the very conclusion reached in Marion's

Case itself. Marion's Case holds that parents

whether married or unmarried may not, of their own

bat, consent to this sort of non-incidental

sterilization. Marlon's Case also decides that

whether or not parents, married or unmarried,

consent, a parens patriae court may negate that

consent because what is critically of interest is

the integrity of the child, which is beyond the

scope of parental consent alone to subject to this

operation.

Given those conclusions about the common law,

we would submit that the constitutional link fell

off with respect to the marriage power.

BRENNAN J: That ignores a proposition that the welfare of

children of a marriage is within the marriage

power, simply by reason of their status as children

of a marriage.

MR MASON: With respect, I would argue against the

proposition stated in those terms. Certainly it is

the role - it is encompassed within marriage that

there be children and that children be cared for

and their welfare would be a concern of the parents

- non sequitur that anything that pertains to the

welfare of children o·f a marriage is within the

marriage power. The power, in our submission, is a

P(2) 31 2/2/94

marriage power .and not a children power. It does

not allow the Federal Parliament to pass a law

about what children may read, what schools they may
go to, whether they must be sterilized or not

sterilized, immunized or not immunized. The mere

fact that the Federal Parliament confined the power

to "provided they are children of a marriage" would

not, in our submission, provide a relevant

constitutional link.

DAWSON J: That is really going back to your first argument,

that the exercise by the parents or by the court of

its power to act for the welfare of the children

must be exercised against the background of the

general law.

MR MASON:  Yes, the two arguments - they do very much blend

one - - -

DAWSON J: That I can understand.

MR MASON:  The construction argument is reinforced, in my

submission, by the constitutional argument.

DAWSON J: But in the absence of any law forbidding a

certain course of action, it may well be that they

can take - - -

MR MASON:	In my submission, not with respect to this particular medical procedure because Marion's Case
itself establishes that it is beyond the
untrammelled power of a parent to consent to at
common law.
DEANE J:	But is that not contrary to what is said at

page 262 in that from 261 to 262 Their Honours are

saying what is within power. The only relevance of

the Northern Territory law was that it provided

that something was not unlawful assault if the Act

was authorized. When I read 261 to 262, it seems

to me to be inescapable that Their Honours are

saying that the Family Court was validly empowered

to authorize this procedure, and it is because it

did have that power and that the Act was authorized

that the Northern Territory assault provisions were

simply inapplicable.

MR MASON:  Your Honour, there was no question but that the

Family Court had constitutional power because of

the operation of section 122 upon the Family Law

Act, but what we would seek to agitate is

whether - - -

DEANE J: But Their Honours have said at page 261, "quite

apart from the operation of s 122".

P(2) 32 2/2/94

MR MASON:  I accept that, and I accept that if that remark

is to be read outside of the context cf the right

of parents to consent under the existing common and

statutory law - if it means only that, provided the

parents under the Commonwealth statutory can
consent for the Family Court to open the key to

that consent is within the marriage power, we would seek to argue to the contrary, but if it means more

than that we would see, as it were, more strongly

to argue to the contrary. There are two

alternative propositions, but we do accept that

that statement, however understood, contradicts one

of the submissions we would respectfully seek to

put.

MASON CJ:  Mr Solicitor, we will adjourn now and resume at

2.15 pm.

AT 12.53 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

MASON CJ: Yes, Mr Solicitor.

MR MASON:  ..... not that that matters, ultimately. The

submission is that it must just be defined by

reference to its context and it would mean a person

upon whom the procedure would take place. Now that

Mr P has arrived, there has been agreement as to an

additional fact and, subject to the Court's leave,

we would seek to have added as fact 8(a) the

following statement:  LOP is incapable of

understanding the general nature and effect of the

treatment proposed to be carried out on her. LOP

is incapable of understanding the general nature

and effect of the treatment proposed to be carried

out on her.

We have looked in particular at section 33(2)

of the Act, where there is a definition of the

expression "person incapable of giving consent".

It is my understanding that that amendment has the

agreement of my friend Mr Jackson and Mr P.

MASON CJ:  I shall amend the stated case accordingly.

MR MASON: If the Court pleases. Returning just to two

matters dealt with earlier. Mr Justice Toohey was

asking me about the question 1 and its form, and

there was a related question from Your Honour

Justice McHugh about the possible discriminatory

P(2) 33 2/2/94

operation of the Family Law Act, as we would

construe it. Question 1, in our submission,

embodies in a specific context confined to the

facts of this case a more general proposition which

may be stated as being: does the Fa111ily Law Act

purport to confer on the Family Court of Australia the power to make an order authorizing a person to

carry out on a child of a marriage medical

treatment, if that were contrary to the enacted

law?

Such a question, or such an interpretation of

the Family Law Act, would not embody any

discrimination, if that were relevant. Some States

may have enacted law, or the Commonwealth may have

enacted law, they may not. The federal provision

would have a uniform effect, it just would have a

differential operation, depending upon the facts.

Your Honour Justice Deane asked me some

questions about the power of the Family Court in
the event that it wished to restrain an operation

taking place and if I may assume that the board in

New South Wales were of the opinion that an

operation were necessary to save the child's life

or prevent serious damage to her health and

authorize Doctor X to do it, could the

Family Court, if of a contrary view, restrain

Doctor X? Doctor X would not, under the State Act,

have an obligation to perform the operation, the

consent would merely lift a prohibition from him or

her, but our submission would be that, were the

Family Court to restrain Doctor X in that

situation, it would be exceeding the power intended

to be conferred and the constitutional scope of the

marriage power in doing that. But change the

facts: could the Family Court restrain JDP from

seeking the consent of the Guardianship Board of

New South Wales?

Marion's Case, subject to our submission about

the marriage power in Marion's Case, would appear

to say yes, that it would be within the marriage

power and the scope of the Family Court's

parens patriae power to descend upon the exercise

of a parental right and direct how it may be

exercised. We would accept that that would be

within the scope of Marion's Case and would be

within a valid exercise of the marriage power. Of

course, it would not necessarily prevent the

operation taking place according to the effect of

the New South Wales law, because any person may

seek the consent of the board in an appropriate

case.

GAUDRON J: Could the power descend on the board?

P(2)	2/2/94
MR MASON:	Beg pardon?

GAUDRON J: Could an order be made by the Family Court

binding the Board?

MR MASON:	No.
GAUDRON J:	Why not?
MR MASON:	That would amount to an interference with the board's jurisdiction under the statute conferred
upon it and would be outside the Family Court's power, as we would have question 1 answered. It would also be outside the constitutional power, as
we would argue.

GAUDRON J: Well, I wonder about that, it is a child of a

marriage. Given agreed fact 8(a), a child of the
marriage in need of care and guidance and

assistance.

MR MASON:  You are posing an order that the board not

consent, rather than the board consent?

GAUDRON J: Yes.

MR MASON:  In its naked terms that raises the question, may

the Federal Parliament, pursuant to the marriage

power, say that no child of the marriage shall be

sterilized or shall be immunized, or every child

must be immunized, in my submission, and that has

taken it outside of the necessary link with the

parental rights.

GAUDRON J:  It says "any child in the custody of a party to

the marriage, under the care and direction of a

party to the marriage."

MR MASON:  Yes. Well, of course, I say that the Family Law

Act does not presently purport to change their

rights and, therefore, as a matter of

interpretation the answer is, no. But as a matter

of power, such a law would be characterized as a

law with respect to the welfare of children and not

a law with respect to marriage. The extent to

which the marriage power may properly be used to

touch the rights of children is confined, in my

submission, to those which precede from the

parental rights and obligations over children and,

in a sense -

GAUDRON J: Which you say have to be ascertained by

reference to the general law and which may not be defined by the Federal Parliament pursuant to the

marriage power?

P(2)	35	2/2/94
MR MASON:	No.	In fact that really comes to where I am

about to start. At paragraph 14 of the outline of

submissions we do accept that the marriage power

confers upon the Parliament a power to define or
modify the rights of a party to a marriage with
respect to the custody and guardianship of a child

of the marriage.

GAUDRON J: But to define them?

MR MASON:  Or modify. Whilst it may affect therefore the

procedural and substantive relationship between

married partners and their children, it does not

follow that any federal law that touches the

welfare of the children, even though that welfare

is obviously of concern to the parents, is itself a

law with respect to marriage. There may be

questions of degree but one starts, in my

submission, with the status quo, the common law

position of parents with respect to a child, and

the rights and obligations of the child under the

general law: to what extent are those rights seen

to be out of the autonomy of the child, to what

extent are then seen to be part of the family

relationship itself? Marion's Case we submit

clearly puts this form of operation in the category of the autonomy of the child rather than as part of the private relationship of the marriage.

But to answer Your Honour, I think I would say as to any form of medical procedure the federal law

may not direct or regulate that in substance and

may not save validity simply by confining it to a

child of the marriage because such a law would not

arise out of the marriage relationship. The

connection would be simply the children who have

arisen out of the marriage relationship and that

would be a contrived and illusory connection with

the marriage and the posited power.

Your Honours, may I read from the passages

referred to in paragraph 15 in support of the

proposition that the law is not a law with respect

to marriage simply because it has some operation

with respect to a child; only the very last of

them, the judgment of Your Honour Justice Dawson,

164 CLR 91, at page 120, where Your Honour said:

A child of a marriage has an existence which

extends beyond the confines of the marriage

and which subjects that child to laws

governing persons generally, including laws

which may affect its custody in ways unrelated

to marriage or divorce and matrimonial

causes - eg, criminal laws or laws dealing with health or welfare. It must always be

P(2) 36 2/2/94

borne in mind that the power of Parliament is not to make -laws with respect to the children of a marriage or even with respect to the

custody of the children of a marriage.

Putting to one side the divorce and

matrimonial causes power ..... the power is to make laws with respect to marriage and it is

the requirement of a sufficiently close

connexion between a law made under that power
and marriage which must ultimately limit the

jurisdiction which can be conferred upon the

Family Court with respect to custody, however

general the terms in which that jurisdiction

is expressed. Nor does the marriage power

extend to preventing the operation of other

laws in order to preserve something upon which

the marriage power (or jurisdiction conferred

pursuant to the marriage power) can operate.

It does not do so because a law with that

marriage. object would not be a law with respect to

Your Honours, the test that has been quoted

frequently is that in the judgment of

Chief Justice Gibbs which we set out at the bottom
of page 8, that was cited by the majority Justices in Marion itself. Like all characterization tests

it really states the proposition without providing

very clear guidelines as to its application, but

there have been suggestions which we collected in

paragraph 17 of the outline of examples of laws

which could not be characterized as having the

appropriate connection.

At the risk of trying to draw a generality

from them, a distinction seems to be drawn between·

those that focus upon the welfare of children

generally, and the child as a child or as a person,

and particularly those which touch upon traditional

areas that are not regarded as being within the

private realm of the family, the criminal law,

starts with what is traditionally regarded as	health law, I would add education law; and one
marriage and the role of the parent, and perhaps
that changes over time as certain aspects of what
is in the welfare of a child can be treated as
within the concept of the private and what is within the concept of the public.

Certainly examples that are given include the

example of releasing a child from a mental hospital

or hospital for infectious diseases, and laws

dealing with health or welfare in the example of

Justice Dawson, and in the lengthy passage from

Justice Aickin that we have set out at the top of

page 10.

P(2) 37 2/2/94

In our submission, a law which, even though

confined to a child of the marriage, descended upon
non-incidental sterilization, in the light of

Marion's Case, would not be a law with respect to marriage any more than a law which directly

compelled or permitted the sterilization or

education or censorship in relation to children of

a marriage. Alternatively, we submit that it would

not be a law with respect to marriage if it
operated to arm the parents with the power to avoid

the enacted criminal law.

Your Honours, I think I need dwell just very

lightly upon the question of referral of powers

because, having had a brief word to my friends, I

do not understand there to be a suggestion that the

constitutional jurisdiction of the Family Court has

been relevantly increased in the present case. But

I have given the Court the parliamentary debates

which are referred to at the bottom of page 11,

which, together with the article from Mr Seymour,

to which reference is made, indicate that the

purpose of the referral of power was to extend the

existing Family Court jurisdiction to cover

ex-nuptial children, rather than to extend the

nature of the Family Court's jurisdiction.

Your Honours, questions 4 and 5 would appear

on reflection virtually to fall away in the way we

perceive this case. The Guardianship Act is a

prescribed child welfare law and therefore

section 60H picks it up. But, as I said earlier,

the Guardianship Act deals with traditional
guardianship matters as well as, in Part V, the
special question of medical treatment of minors.

Section 60H in preserving what are referred to as

child welfare laws would have this effect in the

present case.

If it were the fact, and it certainly is not,

that the daughter of Mr and Mrs P were made a ward

of the State under the child welfare laws, then the	operation in relation to her of a child welfare law
would be preserved. Or, if it were the fact,
looking at section 60H(2)(a) and (e), that under
the Guardianship Act she were placed under the guardianship or in the custody or care and control of a person - and she has not been - then the operation in relation to her of the Act as a whole
would be preserved, but since that has not
occurred, there is no question of section 60H(2)
changing the matter.
In paragraph 21 we address finally the question of inconsistency and the operation of
section 109 and we submit that if all of the
previous questions have been answered adversely,

P(2) 38 2/2/94

namely, if the intent of the Act is to confer a

broad enough power on the Family Court and if there

is no infringement of Chapter III and if there is

constitutional jurisdiction, because this is a law

with respect to marriage, then there would be an

inconsistency, a direct inconsistency, between
sections 64 of the Family Law Act and the State law
in the event that the Family Court gave authority

for the operation to take place. The inconsistency

would not arise between the order of the court, but

it would arise between the legislation which

authorized the order to be made, which conferred a

positive permission on the assumptions made, and a

valid one, as against the State law.

We do reserve and seek to distinguish a more

general form of covering the field inconsistency

which might be said to have arisen through the

operation of section 63A which provides that:

Proceedings that may be instituted under this
Part shall not, after the commencement of this

section, be instituted otherwise than under

this Part.

It would be our submission that there could not be

a valid inconsistency created by that provision on

all the hypotheses that have been put because
unless and until an order were made authorizing the
operation to take place, 63A would merely be
creating an inconsistency through the procedure of

denying the jurisdiction of a State court, and we

would submit that that is not a permissible, and

probably one is in Melbourne Corporation country,
but that is not a permissible way in which federal

law may operate upon State law.

Question 5, we submit, also falls away, unless

we have misunderstood its intent because, assuming

everything else against us, the effect of the

Family Court's order would be to give the parents

power to consent to the operation which,

presumably, would be intended to allow the

operation to occur and obviously, everything else

being assumed against us, would by force of federal

law bring about the situation that it could. It is

that very fact that by that indirect means under

the Trojan horse of the marriage power one, in
effect, alters the relationship between the doctor

and the child. It is for that very reason that we

would submit that the earlier answers compel the

conclusion which we have advanced. If the Court

please.

MASON CJ: Thank you, Mr Solicitor. Mr Solicitor for South

Australia.

P(2) 39 2/2/94

MR DOYLE:  I think Your Honours should have our outline of

submissions.

MASON CJ: Yes, we do.

MR DOYLE:  If the Court please, in our respectful

submission, the first issue here is the issue of construction, the question of whether the powers conferred by the Act are intended to authorize an

order which would provide, or have the effect, that
if the procedure were carried out, there was no
contravention of section 35, as well as giving any
necessary authorization. Then, the second issue is

whether that is within power, and we want to put

relatively brief submissions as to both matters.

Could I say at the outset, Your Honours, I am

assuming for present purposes that the procedure is

what I think my learned friend referred to as a

non-incidental sterilization or, to use the term -

although I know some of Your Honours eschewed it -

a non-therapeutic sterilization. In other words,
it is a procedure which, in the light of the

decision in Marion, the parents could not consent

to.

Your Honours, our submissions in the area of

the scope of the Act construction are that there

simply is no reason to treat the Family Law Act as

conferring the sort of power which it seems to be

suggested is conferred in so far as it seems to be
suggested that the Family Court could make an order

which would have the effect that there would be no

contravention of section 35. We submit that to do

so would be to construe powers in language which is

fairly well known and of relatively long standing

in a manner in which they have not previously been

construed.

It is an area, Your Honours, where we

acknowledge, be it by way of defence or whatever,

that it is difficult to be precise and at the same

time relatively general. But in our respectful

submission, the powers given to the Family Court

have been seen as powers similar to those of

parents, and that remains an important and valid

point to make. In other words, they are powers

given to the court to do things of the type parents

can do, embracing within that that what parents can

do is always subject to general laws operating in

the community.

I do not suggest for a moment of course that

the powers given to the court are precisely the

same as parental powers. It is clear from the

cases that they are not but, in our respectful

submission, they have been generally understood as

P(2) 40 2/2/94

similar in type to parental powers in the sense
that, just as parents in certain areas can decide a

child will be treated, can go and seek a doctor

but if under the relevant State law there is so~e

obstacle to the parental consent bringing about the

operation, then so be it. In our respectful

submission, the powers given to the Family Court

have generally been viewed in that fashion and

there is no real reason to think that they were ever intended to be viewed in any other fashion.

In our respectful submission, it is crystal clear that the use sought to be made of them here

is a use that would be, first of all, novel.

Secondly, in our respectful submission, if

available it is difficult to see why the order

would not also enable one to get around or override

a prohibition under Commonwealth law. The same

sort of reasoning, in our respectful submission,

would seem to apply at the construction level.	We
are not talking about section 109.	We are asking

ourselves: is this a power given to the court and

intended to be able to be used to override specific

statutory provisions?

DEANE J: Is there such a provision in South Australia,

Mr Solicitor?

MR DOYLE:  You mean, Your Honour, similar to the New South

Wales - - -

DEANE J: Similar to section 35.

MR DOYLE: Yes, Your Honour. Our legislation, which is on

our list of authorities - but I will not detain the

Court with it - the scheme is very similar. The

powers are given to the Guardianship Board and it

is made an offence for such a procedure to be

carried out without the consent of the Guardianship

Board.

DEANE J: While I am delaying you, what would you say to the

proposition that the majority judgment in Marion
establishes that, absent such a provision, the
Family Law Act confers jurisdiction on the Family

Court to authorize the sterilization for the

purposes involved in this case?

MR DOYLE:  Your Honour, we accept that in the passage at

page 361 of the judgment that that is what the

majority appeared to say. We would only qualify it

in this sense: in our submission, what the Court

has said is that in a system where, as part of

family law, if I can put it that way, either a

parental consent or a proxy consent for the child

may render a thing which would otherwise be

unlawful, lawful, in such a system that is an

P(2) 41 2/2/94

aspect of family law and the F~ily Court may deal

with the giving of such a cons~nt or control it.

Our submission is that in a system where the

parental or proxy parental con8ent has no effect,

as in New South Wales, then the position is quite

different. And you can analyse it in different

ways. The simple way is to say that the further

obstacle in New South Wales, the obstacle provided

by the Guardianship Board, is something unrelated

to parental consent.

So you can analyse it this way: these parents

can go to the Family Court in New South Wales and

the Family Court may issue what I will call a

Marion-type authorization. It will be ineffective

in New South Wales if the child were taken to

another State where, let us say, the law has

replicated those of the Northern Territory, then

presumably the procedure could be carried out in

that other State, assuming, as I do, and I

understand it to be the case, that there is no

provision in the New South Wales Act purporting to

apply to a child resident or ordinarily resident in

New South Wales but taken elsewhere.

So, we would put it that way, while I

understand my learned friend to go a step further

and say that in a system such as New South Wales,

where parental consent is displaced, then that

could not happen because you have travelled outside
the marriage power because in that State - the

content of the marriage power is affected by the

fact that in that State parental consent has no

role to play.

Now, for present purposes where relevant to

adopt that as a possible analysis also, but in our

submission, I do not think Your Honours need to

decide that issue here, but it may be the answer is

that even in New South Wales an authorization can

be given for what we would submit is that it can be

nothing more than, what I will call, a Marion-type

authorization, and it would be ineffective in New

South Wales, first of all because as a matter of

construction the powers of the Court were not

intended to enable it to be made effective and,

secondly, the second part of our argument, that in
so far as an attempt is made to make it effective,

notwithstanding the New South Wales law, you have travelled outside the marriage power, because you

have travelled beyond the issue of what parents can

do.

The New South Wales law, while it affects what

parents can do, is not a law actually on what
parents can do, and so just as when a child is put

in prison, that affects the custodial rights of the

P(2) 42 2/2/94

parents, the general approach to that has been "Well that is not a law on custody and it is a 1 1aw

which can operate consistently with the provisions

of the Family Law Act." Now the lines which are

drawn here are going to be difficult to draw, we

acknowledge that, and I do not for a moment doubt

that examples could be thrown up which I will find

difficult to answer but, in our respectful

submission, in this area, this is unavoidable

because marriage as an institution and the family,

as an institution are things which do operate in a

society in which there are other laws bearing on

the marriage and the family and our constitutional

system requires the adjustment to be made and, as I

have indicated, that is how, we submit, the

adjustment is to be made.

So, we submit, Your Honours, that to construe

the power in the manner sought by Mr Jackson would

be, first of all, novel; secondly, as I have said,

striking, because it would seem to be equally
applicable to Commonwealth and State laws. The

rationale or the underlying reasoning would not

provide any reason for distinguishing between State

and Commonwealth laws, and the implications of

that, of course, are very significant.

It might help just to indicate the general

thrust of our submissions if I attempted to deal

with two or three questions that were put to my

friends this morning just to indicate how our

submissions fits with what was in Your Honours'

minds. Your Honour Justice McHugh asked my friend

early in the piece, "Well, does this mean that the

power of the Family Court is different in every

State?" Our respectful answer to that is, "Well, it does, if you want to put it that way, just as

the powers of parents may be different in every

State". Because, we submit, that in this area -

and I do want to make it clear that I am talking of

medical treatment, I am not even necessarily saying

Law Act", but that in this area the relevant powers	"All matters dealt with in section 64 of the Family
have been understood as similar to those of parents and so, if you like, you can say "Yes, the powers
of the Family Court, in their content, will vary
from State to State".

McHUGH J: Well, since I asked that question, the thought

has occurred to me that it really has got little to

do with the case, because -

MR DOYLE: Perhaps I should not have touched on it; my

judgment is bad.

McHUGH J:  - - - in this case·, in section 35, puts the prohibition on a person carrying out medical or

P(2) 43 2/2/94

dental treatment and that person is directed by the
law of New South Wales not to carry out special
treatment unless he or she gets one or other of the
consents and the real question then is, as the

first question asked, whether the order in the

Family Law Court can authorize that person to carry

out the medical treatment. When you look at it in

that light it seems to me it is quite different

from the way I first asked the question.

MR DOYLE:  Yes, well we, with respect Your Honour, agree

with what Your Honour says; it may not have much to

do with it, but to the extent it is relevant, yes

you can say the powers of the Family Court vary

from State to State in the sense that, in this

particular area, the nature of the power given to

the Family Court is such that being subject to

general community laws it must necessarily be

affected by whatever the laws are in the relevant

community.

McHUGH J:  I mean, it would be as if section 35 said a

person must not carry out medical treatment,

et cetera, unless he or she had the consent of the

Queen of Tonga. The question is whether the

Family Law Act could override that provision.

MR DOYLE:  Your Honour, I will come back in a moment to two

or three other questions, but it may be convenient

just picking up on that to - - -

DEANE J: Or is not the question really whether if the

section said a person must not carry out medical or

dental treatment on a patient, full stop, whether

the Family Law Act could override that prohibition,

because it is the prohibition that is operative.

MR DOYLE:  Yes, well I would argue it could not,

Your Honour, and that again touches quite

conveniently on the way I was going to put it.

With medical treatment you can, in our submission,

look - - -

DEANE J: What about if it said, a person shall not provide

support for another person?

MR DOYLE:  You mean, in the sense of maintenance support?

DEANE J: Support, yes, financial support.

MR DOYLE: Well, Your Honour, that is why I am deliberately

confining these submissions to the area of

treatment - I will come back to this in a moment -

but I would acknowledge that in the area of custody, for instance, a slightly different

approach may have to be taken, because custo~y is

something as to which parents have, what I will

P(2) 44 2/2/94

call, ~i~positive powers, in other words, they have the ability themselves to deal with custody, and to

some extent, custody is a thing - and I say, to

some extent - which is exclusive; either you have

custody or you do not, but in our system of law

with medical treatment, the way we see it - and r

do not mean for our submissions, I mean, in our
system, the way we see it - the most the individual

can do is say, first of all I think this treatment

is in my interests and secondly, I consent to it

being done. That is the most the individual can

ever do and, in our submission, in this area it

would again be very odd to read the Family Court

powers as enabling it to be transformed to a

situation where someone can say, this treatment

will be done, as it were, come what may, and that

is really the attempt, or that is the attempted use

of section 64 here.

Your Honours, with medical treatment you

could, in our submission, say it raises issues in

four areas: first of all, the individual's consent

which may be direct or it may be what I will call a
proxy consent. It may come from a parent; it may

come from a court. That, as it were, opens the

key, if you like, or makes it permissible. The
second issue is the general legality of the

procedure under the law of the place. The third

issue is someone qualified to do the procedure;

and the fourth issue is the facilities.

In our respectful submission, parental consent

and proxy consent operate substantially, almost

entirely, in that first area, namely, opening the

door, the individual's agreement to undergo it.

Because of the way trespass interacts with the criminal law it also interacts at level 2, because without it the treatment may be criminal. In our

respectful submission, it is only to that extent

that it interacts, and as a general proposition one

can say both as a matter of construction and as a

matter of constitutional power, the powers of the	Family Court are in area 1, and if the obstacle is
in area 2, general permissibility of the procedure,
or area 3, someone available to do it, or area 4,
facilities in which it can be done, you are going
to the limits and, we would submit, beyond the marriage power.

GAUDRON J: What if section 35 here not merely operated as a

prohibition on doctors in New South Wales, but as a

prohibition on any adult having the custody or

guardianship of the child taking steps to have the

operation performed anywhere else in the

Commonwealth?

P(2) 45 2/2/94

MR DOYLE:  Your Honour, in our respectful submission, that

may well be valid because that is a law -

GAUDRON J: What category would the second part of the

prohibition fall into?

MR DOYLE:  Could Your Honour give it to me again because I

did not realize there were two parts? Does

Your Honour mean in New South Wales or elsewhere?

GAUDRON J: Yes, if the New South Wales law prohibited any

parent ordinarily resident in New South Wales from
taking any steps to have such a procedure carried

out anywhere else without the authority of the

Guardianship Board.

MR DOYLE:  Anywhere else without the authority of the

Guardianship Board? I suppose first of all,

Your Honour, partly thinking aloud, the first issue

is obviously the legislative power of the State,

but I suppose we can assume that would be within

power as we are talking of parents and children

resident or ordinarily resident in the State.	In
our respectful submission, that would raise

probably the issue which was raised, I think, in

Port Macdonnell of conflicting State laws. First of

all one would need to know is there a conflicting State law, that is, of another State on the topic,

and if there is it may first of all be necessary to resolve what I would loosely call "a full faith and

credit issue" as to which law prevailed.

DAWSON J: Section 117.

MR DOYLE:  Yes, and section 117, so that would be the first

problem to be faced. If that were surmounted and

one still had the New South Wales law operating

then, I think, Your Honour, I have to say in my

submission it will be effective because we now are

in the position that these particular people, part

of the general community law applicable to them, is

a law which is reaching to them when they are in

cuff, in my submission, provided you got past the	another State. So, although it is a bit off the	first obstacle, that would be valid. But I think I
started thinking Your Honour was talking of a
Commonwealth law. Was Your Honour talking of a
State law?

GAUDRON J: State law, yes. I am just asking you into which

category you would put that second - - -?

MR DOYLE:  Yes, I would put that in the first category,

Your Honour. Could I give this illustration,

Your Honours, with my four categories. Let us

assume that the Commonwealth provided that parents

should, as it were, take all steps available to

P(2) 46 2/2/94

them to sGcure the immunization of their children.

Now, in nry respectful submission, that is in area 1

and would probably be within power because it is a

decision by the Commonwealth Parliament as to the content of the obligation of parents in that area to do the best for the welfare of their children.

However, let us assume that in a particular State the relevant serum was available only for use

on adults. In our respectful submission, that I

would put in area 2, in other words, in this State

you cannot use that serum on children, therefore

the procedure is not legally permissible. Now, in

my respectful submission, it would be again, as a

matter of construction and power, not within the
scope of the Family Law Act for the Family Court to

require the serum to be administered,

notwithstanding that under State law that

particular type of serum could not be used on

children. Another possibility is that in the

relevant State - - -

GAUDRON J:  Why could they not require them to go

interstate?

MR DOYLE: Well, that is another issue, Your Honour. I am

not suggesting, Your Honour, that that issue does

not also arise: would the parents then be under an

obligation to go to a State where the immunization

could be performed. What I am submitting is that

in the State where the serum could not be used on

children the parents could not, by virtue of the

Family Law Act, require the serum to be given to

their child, either through the Family Court or

through a direct provision in the legislation.

Another possibility which would throw up what

I will call an area 3 problem is, you may find in a

particular State that for a doctor to administer

that serum, he has to have a particular kind of

qualification or licence, and there may simply be

not enough doctors to do the children, or it may

happen as yet none have been given the relevant

licence. Again, in my submission, as a matter of

construction and power, the Family Law Act would

not enable the parent to say to a doctor, "You must

do this to my child, the Commonwealth Parliament

has told me I am obliged to get my child

immunized". The answer is again, in my submission,

ultimately, "Well, we have now moved beyond the

marriage power which is concerned with the parent~!

obligation and capacity, into another area, that is
duties on other people, although they do impact on

the family".

So I submit that, again if you think of it in

those four stages, that is the matter of medical

P(2) 47 2/2/94

treatment, one can say with some confidence that it

is area 1 which is the area as a matter of

construction and power of the Family Law Act, areas

2, 3 and 4 are generally as a matter of

construction and power beyond the Family Law Act,

although I know it can be said to me that puts a

premium on drafting and you can, as it were, get at
the parental capacity by dressing it up another way

by, for instance, a State that did not want

sterilizations could, for instance, provide I

suppose that only doctors with a category x

certificate are permitted to carry out

sterilizations and could then refuse to issue any

category X certificates. But, in my respectful

submission, if that can be done, so be it.

Nevertheless, the prohibition addressed to the

doctor, as Your Honour Justice McHugh said, is

really in a different area.

Returning to those questions that I said I

would deal with briefly, Your Honour Justice Toohey

this morning I think asked my friend about, as it

were, the intended scope or effect of the reasons

in Marion's Case, and I have probably already

answered this. My submission is that I take the

majority in Marion to mean that if Northern

Territory were a State and the law of that State

were the same as the law of the Territory, still

the Court would have said what it said on page 261.

And in our respectful submission, that would still

be correct.

But once the law of the State differs - and

this is the important thing, in our submission, to

bear in mind with the remarks at page 261 - then

the premise on which those words are based is

altered and one has to reconsider the matter. So

sterilization of a child of a marriage does arise

out of the marriage relationship in a jurisdiction

in which that matter is within the capacity of

parents or children, either directly or by
substituted or proxy consent.	In a State where it

is not, then perhaps the answer is: it no longer

arises out of the marriage relationship at all. So

the court cannot even give a consent and say, as it

were, "Here it is; do what you can with it."
Perhaps the answer is: it can simply give the

authorization but in that State or jurisdiction the authorization will be of no practical effect. That

is all I wanted to say on those, if the Court

pleases.

So, we do argue, Your Honours, the construction issue really is where the answer lies,

although I will come .to power in a moment and that,

as I submitted a short time ago, there is simply no

reason to read the powers in the manner suggested.

P(2) 48 2/2/94

As I have already acknowledged we do not suggest that section 64 may not in some situations give

rise to inconsistency with State law, and I use the

instance of laws in the area of custody. we

acknowledge that more readily in that area the

powers given to the Family Court may be such that

one would say that State laws in that area are

inconsistent with the Family Court powers. We

direct our submissions deliberately to the area of

medical treatment.

Your Honours, on the construction issue, we

submit that the parens patriae jurisdiction

provides a useful analogy and I am here turning to

paragraphs 4 and 5 of our outline. We have been

unable to find any cases where it has been

suggested that that power does enable a Court to

override a specific statutory provision. In

paragraph 5, at the top of page 3, we have given

references to a number of cases where - and we have

given page references and I am not going to read from any of them - but in those cases the courts

have looked at the interaction between the

jurisdiction and statutory powers.

Generally what they have been looking at is

something a bit different, it has been the

interaction between the statutory jurisdiction and

the power of a State official to deal with

something like custody or welfare. So you might

say that it is, in a sense, a scheme interaction as

distinct from specific provision interaction, as we

have here. But the tenor of what one finds in all

those judgments is that while the court may retain

some residual powers which will fill gaps in the

statutory scheme, first of all, and secondly, while

in some situations the court may, in that

jurisdiction, be able to supervise the exercise of

the statutory powers, so sometimes, depending on

how they are cast, the court may claim - may say,

"Well, we can supervise the exercise of the

statutory powers." But there is no instance where

the court has suggested that it can, as it were,

override the power, and in fact the courts have

constantly said to the contrary. In our

submission, one would think that that is fairly

telling material.

McHUGH J: Except in analogous fields inherent powers have

been seen to operate, even in situations where the

statutory power might have been thought to be quite

exhaustive. For example, take disciplinary
matters. In New South Wales there is a Legal

Practitioners Act which confers power on a

tribunal, and in Weaver's case it was held that you

could not appeal from a decision of the tribunal,

yet it was held that under the inherent power of

P(2) 49 2/2/94

the Supreme Court they could rehear the whole

matter. Why is that not an analogy?

MR DOYLE: _I suppose my first answer, Your Honour, is a very

different area of the law and presumably, first of

all, the court, on a careful examination of the

statute, came to the conclusion - in a way I am

almost just stating my answer - that there was

nothing in the statute that suggested the two powers could not co-exist. In our respectful

submission, in this area, the particular area we

are dealing with here, the notion of concurrent

authorities is, we submit, a difficult one and one

wonders on what basis one would have them

co-existing but, Your Honour, all I can submit is

that in the area of the parens patriae

jurisdiction, which is the closest analogy, the

general approach has been that at best there can be

a co-existence, but that wherever the statute does

make specific provision, that is that, and so,

although I am not familiar with the case to which

Your Honour refers, it would be one thing to say

the inherent jurisdiction - - -

MCHUGH J: I think it is in (1974) NSWLR. It is Weaver v

the Statutory Committee.

MR DOYLE:  I think I will have to look at it later,

Your Honours, but thank you for the reference. But

presumably in the inherent jurisdiction, it would
be another thing for the court, as it were to - and

I hope I am not going to lead to a catastrophe here

- reverse or undo the very thing done under the

statute. There might be a co-existing

jurisdiction, as it were, to act alongside the

statute but, query, an ability, where the statute

says X, then in the exercise of the inherent power

to say not X in the sense of nullifying and

obliterating what was done under the statute or in

the sense of empowering what the statutes, or

something done under it, specifically prohibited

and that is the difference, we would submit,

because that is what is sought to be done here.

And it is conceivable that in some respects in this

general area, there may be a role for the Family

Court, I have not thought of examples, but I do

not, as it were, rule that out absolutely, but my

submission is that as to this particular and

specific statutory prohibition that is that and

that what has happened in the area of parens

patriae cases supports us.

Can I just give one other page reference to

Av Liverpool City Council, which is the third to last case, pages 379F to G, and I would also like

to refer the Court briefly to two cases which we

found only later and which we have provided to the

P(2) so 2/2/94

Court but, in our submission, which just provide

helpful illustrations of how courts have proceeded.

The first is In re JS, (1990) Fam 182, and it is a

very short case, Your Honours, but this dealt with

a minor who had joined the British Army as a boy

soldier and, as the headnote indicates, develops

psychological problems and went absent without

leave. His mother, in an attempt to, as it were,

get him out of the realm of military discipline

"issued an originating summons making him a ward of

court."

Now the approach the court took appears,

Your Honours, at page 187, where at just below

letter D His Lordship referred to In re Mohamed

Arif and cited with approval some words of

Lord Denning that:

The court will not exercise its jurisdiction

so as to interfere with the statutory

machinery set up by Parliament.

And he said, over the page, at page 1880 to E, it

would:

be inappropriate and, I consider, contrary to

policy to continue the wardship -

and Your Honours will obviously want to read it

more carefully later but, in our submission, what

he is saying is, "Not as a matter of discretion I

decline to make an order here"; what he is saying

is, "I have no powers here. The wardship

jurisdiction is at an end because this boy is

subject to another system, that is, the system of

military discipline" and, in our respectful

submission, that again is another illustration of

where one would move, both as a matter of

construction and power, outside the Family Law Act.

One would be outside its intent and, as a matter of

power, one would be outside the realm of marriage

if one tried, by an order under section 64, to

protect the child of a marriage from military

discipline.

BRENNAN J: The English cases cannot assist much in the

resolution of constitutional •.... here, can they?

MR DOYLE:  No, Your Honour. I use them just as that analogy

as useful illustrations of when and where the

courts have said, "We have got to the end of the

wardship jurisdiction" and while, again, I do not

suggest that wardship jurisdiction is coincidental

with constitutional jurisdiction, it is almost

certainly wider, nevertheless just a useful analogy

to make our point. But when you come up against

another area of law, then you pass beyond the

P(2) 51 2/2/94

marriage power, even though, in doing that, you are

obviously, in effect, affecting what the parents

can do, you are, in effect, affecting things that

are usually within the wardship jurisdiction. And The other case, Your Honours, from which I	so, the reasoning is purely by analogy.
would just like to read a very short passage, it is
In re R, (1991) Fam 56. It is interesting,
Your Honour, that was a case where the question
arose of whether a ward of a court would be permitted to give evidence before a criminal court, the charges being charges of sexual offences against children of the family and, in the end, we
have only given Your Honours an extract from this -
if Your Honours could turn to the second page, at
the bottom of page 65, His Lordship there said, at
letter H:

This principle we would state in the

following terms. Children, whether wards of

court or not, are citizens owing duties to

society as a whole (including other children),

which are appropriate to their years and

understanding. Those duties are defined both

by the common law and by statute. In the

context of the conduct of criminal proceedings

in court, the definition and enforcement of

these duties have been entrusted by law

exclusively to the court in which the

proceedings are being conducted and it is not

for the wardship court, whatever the

theoretical scope of its jurisdiction, to use

that jurisdiction to interfere with the

performance by the criminal courts of their

lawful duties.

And at letter B, significantly he said, if there is a problem in how criminal court is doing it:

the remedy lies not in the exercise of the

wardship jurisdiction •••.. but in the

conferment of new and wider discretions upon

the criminal courts.

And, again His Lordship, as we understand the

judgment, was saying, "I have no jurisdiction

here", and again this usefully illustrates, in our

submission, how that jurisdiction interacts with
other areas of law and, we submit, provides

guidance to the scope of the constitutional power,

which must always focus on whether parental, or

parental-type powers or duties are involved.

So, Your Honours, we submit that one would

look for very clear words in section 64 before one concluded that it had the scope which is suggested

P(2) 52 2/2/94

here and, as we say in paragraph 3 of our outline,

Your Honours, it may be of some significance that

in relation to parental powers, dealt with by '

Family law operation of other bodies of law, because it

reference in section 63E and 63F, the

refers, in 63E, to such powers as guardians and

custodians have, in effect, under laws apart from

this Act, and it would be odd if, in that area, the

Family Law Act was, as it were, adopting and

allowing for the operation of general laws in the

community, but the minute you move to the area of

the court, which in a sense acts in loco parentis,

the whole premise was different.

We would also submit, Your Honours - and I do

not want to read from this passage - that the

approach taken by Justice Stephen - and we refer to

this in paragraph 6 of our outline - in Reg v

Lambert is helpful. It is a dissenting judgment

but, in our respectful submission, the approach he
took is the right one, namely that in this area one

does have to allow for the operation of laws, as he

said it, which restrict the choices open to

guardians being laws operating generally in the

community. That is page 461 at about point 5. Our

respectful submission is that while in the outcome

in that case he was in the minority, that is an

approach which has been broadly consistent
throughout the cases and the only difficulty is

applying it case by case then, in our respectful

submission, this is one of those cases which is a

pretty clear instance of the sort of law to which

he was referring.

So we would distinguish this sort of law from,

for instance, a State law which said, for example,

"Nobody shall transfer a child from the custody of

the parents to any other person without approval of the State board." There in the area of custody you

may get a different answer because of the nature of

custody but, in our respectful submission, the

answer is the one for which we contend in this area

of medical treatment.

If the Court accepts those submissions on the

issue of construction, then no separate issue would

arise based on effectuation of the Court order

because clearly enough an order doing what is

sought here would not be within the power as

construed. Your Honours, that is all I want to say

on the issue of construction. There is just one

other very short point and I will deal with this

under the issue of construction, although it may go

to power.

P(2) 53 2/2/94

One of the submissions, as I understand it to

be made by my friend, Mr Jackson, is in these

terms. He says, "The concept of the welfare of a

child includes the question o[ whether the child

sh0uld undergo treatment of the relevant kind." In

our respectful submission, there is a significant

ambiguity wrapped up in those words, "should

undergo treatment of the relevant kind".

In our respectful submission, that is where it

is helpful to think of matters in the four stages

we suggest. The welfare of the child does involve

the question of whether the child should undergo

treatment in the sense that the welfare of the

child, as a matter of construction and power,

involves the question of parental capacities and
substituted consents, the making of the decision on

the merits, namely for the parents or the

substituted person to decide whether it is for the

welfare of the child.

But once one goes on to those further things

which are not really in the area of whether the

child should undergo the treatment but whether the

child shall or will, then we submit often you will

move into matters which are not part of the welfare

of the child as a matter of construction or as a

matter of power. So we submit that while that is

an attractive way of putting it, as my friend puts

it, that word "should" there is in fact ambiguous

and tends to conceal what are the real issues.

On the question of power, Your Honours, like

my friend Mr Mason's argument, our submission as to

power draws very much on what we have been putting

on the question of construction. In our respectful

submission, the constitutional power is largely in

what I call that area 1, the definition and

enforcement of parental rights and obligations, and

recognizing the danger of generalities, once one moves into the area of obligations and duties on

which are not laws operating directly on parental	other persons which are furthermore found in laws
capacities as distinct from affecting them, then
one is moving out of the scope of the marriage
power.

So we submit that relevantly marriage as an

institution involves the parental capacities and

what I have called "proxy" consents, the making of

the decision, and then it may involve putting

obligations on parents in terms of effectuating the

decision. But you go beyond the marriage power
when, as it were, you enable the parents in turn to

require other people. to do things which under law

are either not permissible or which those persons

may not choose to do. For instance, in our

P(2) 54 2/2/94

submission, you would go beyond power if you

required, that is, the Commonwealth Parliament

would, if in terms it purported to require doctors
to give certain types of treatment to children.

While that is in a sense critical to the welfare of

children that they can find a doctor who is willing

to treat them, nevertheless, in our respectful

submission, in our system of law to require a

doctor to give the· treatment would be to go beyond

power because you are out of the realm of marriage

and into another realm which I do not need to name.

It is sufficient, in my submission, to say

negatively that is outside marriage and lacks any

sufficient connection with it even though, and this

is the important point, even though it is obviously

central to the welfare of the child. But, in our

submission, the point is the power is not welfare

of the child. The power is welfare of the child to

the extent that that, as it were, entrains or is
linked to the marriage relationship, and requiring
the doctor to give the treatment is certainly on
the matter of welfare of the child, but it is
outside the matter of the marriage relationship.

One only confuses things by talking rather loosely,

in our submission, of welfare of the child as the

central issue.

The other way we would put the issue of power,

Your Honours, is that the relevant constitutional

power is in the area of what I would call

facultative or facilitative things, that is,

removing obstacles to the treatment required for the welfare of the child. The relevant power is not in the area of imposing obligations or removing

duties at law which are obstacles to the treatment.

Your Honours, for those reasons we submit that,

even if our submissions as to construction are

rejected, that in this fact situation it would be

to go beyond power for the Court to make the order
which is sought.	We submit that the same - - -

BRENNAN J: To go beyond the power which the Court could

have conferred upon it under the marriage power.

Is that what you are saying?

MR DOYLE:	Yes, Your Honour.
BRENNAN J: Well, could I just ask you this question?	Whatever order the Court might make, the provisions
of section 35 in the New South Wales Act stand upon the statute book. What is it that precludes the
application of that to a doctor in New South Wales?
Let us assume the Court makes an order which says,
in the case of P, we declare or consent.

P(2)	55	2/2/94
MR DOYLE: Similar to Marion?

BRENNAN J: Yes. What is it that nullifies section 35?

MR DOYLE:	In our respect.ful submission, if the order was simply what I call a Marion-type order, first of all one would not construe the order as doing
anything to section 35.  The doctor would read it,
presumably, and say, "Well, that is all very well
but I cannot help you". Let us assume, for instance, this would be odd, but in the reasons for
judgment the judge said, "It is my clear
understanding that if a doctor carries out
treatment relying on this order he will not be
guilty of a crime". Well, again one cannot see how
that helps.

DAWSON J: Surely, it would be an inconsistency, would it

not? That if the order were within power under the

Family Law Act then nothing in the New South Wales

Act would cut down the effect of that order because

if it did it would be inconsistent with

section -

MR DOYLE: Yes, if one reads section 64 as - and perhaps I

misunderstood the premise in Justice Brennan's

question - - -

BRENNAN J:	No, I do not think you did.
MR DOYLE:	If one reads section 64 as meaning the Court - I

cannot remember the precise words - may make such

order as it sees fit, and then silently in
brackets, "notwithstanding any contrary State law",
then as a matter of construction I suppose one
would then say, a Marion-type order presumably now

should be read as intended to displace section 35

of the New South Wales Act.

BRENNAN J:  The order itself cannot.

MR DOYLE:  No, you must go back to the section. I - - -

BRENNAN J: The Act which confers a power may be in itself

inconsistent but the order cannot override 35.

MR DOYLE:  Your Honour, I accept that almost unreservedly

and I would only qualify it in this sense, that

obviously one must go back to section 64 and the

issue is: does section 64 intend to authorize the

making of such orders. However, I suppose in a

sense it can be said, until an order is made there

is in the actual instance no inconsistency because

in a sense one can say section 35 is there and is

operating, but once an order supported by

section 64 so construed is made then the factual

inconsistency arises.

P(2) 56 2/2/94

BRENNAN J: But what is the law of the Commonwealth which

engages 109 to produce the inconsistency?

MR DOYLE: It has to be section 64.

BRENNAN J: It has to be?

MR DOYLE:	Yes, it has to be, Your Honour.
BRENNAN J:	Then that is what I cannot get to grips with

intellectually. You say until the order is made

there is no inconsistency, but by the making of the

order there is an inconsistency. So by the making

of the order a Commonwealth law, which did not

hitherto exist, comes into existence.

MR DOYLE:  Yes. I want Your Honour to understand, I am not,

as it were, trying to differ from you, and I may

seem to, because I, with respect, agree section 64

is the key. But I am perhaps looking at it a bit

like - I cannot remember the case, but where a

Commonwealth and a State - - -

DAWSON J:  The case, I think, is Kakariki, is it not, where

in the operation - - -

MR DOYLE:  Yes, the two authorities with power to remove

shipwrecks. It was said, well, they have each got

their powers and it is only when the Commonwealth

and the State each try to deal with the same

shipwreck - and I cannot remember quite how

Their Honours phrased it there - but that is how I

am thinking of it, as analogous to that. Perhaps

the analogy breaks down, but certainly I accept the fundamental premise that Your Honour is putting to.

me, namely, section 64 is the key, namely, what is

its intended scope. And then secondly, what, as a

matter of power, can be put into section 64. We

are only differing or quibbling over whether as a

matter of literal accuracy one, as it were, talks

of the inconsistency actually occurring if and when

the order is made.

BRENNAN J: Well, it must, at least, mean this. It cannot

be an inconsistency unless 64 confers, expressly or

by implication, a power to make an order which is

itself inconsistent with section 35.

MR DOYLE:  Yes, that is so, Your Honour. Your Honours, we

submit that in this case there is no particular

need to distinguish between the main power and

matters incidental to the main power, the so-called

implied incidental power. In our submission, in

the end, although the analysis has to differ

slightly, one gets to the same result. Likewise,

we submit, there is no separate issue here of what

is incidental to the judicial power because unless,

P(2) 57 2/2/94

as a matter.of power and-construction section 64

has the meaning and effect which Justice Brennan

was putting-to me then, in our submission, one

could not, as it were, say it must at least be

incidental to the judiciul power to enable the

order to be made effective, because if the order

has gone outside the marriage power then that is

that.

Your Honours, I would like to refer for a moment to Gazzo's case, Gazzo v Comptroller (1981-

82) 149 CLR 227, which some may think is dangerous

territory. It is brave counsel that goes to a 3:2

decision and uses it to prop up his argument.	What
I want to suggest to Your Honours is that it is
helpful just to look briefly at some of the

reasoning here in support of a submission that this

case is actually a clearer and stronger case than

Gazzo, and I really want to go to it on that basis and to go briefly to the judgment of

Sir Harry Gibbs, and then to the judgment of

Your Honour Justice Mason.

Your Honours, at page 235, Sir Harry Gibbs was

dealing there with the question of whether there

was a sufficient connection with the marriage

power, and Your Honours will, of course, recall the

issue with the ability of the Commonwealth

Parliament to provide that no duty should be levied

on the instruments. At about point 4,

Your Honours, you will notice that he said:

Again the connexion is only a remote one,

since the object of the section is to destroy

a liability that would otherwise be owed by a

person (albeit a married person) to a State,

under a law which does not take as the

criterion of the liability anything related to

the marriage or the matrimonial cause.

Here the object of the order sought is

actually to remove an obligation imposed on a

person who is not even a married person, because

the object of the order sought is to remove an

obligation imposed on the doctor under a law which,

again, does not take as the criterion of its

liability anything at all related to marriage or

matrimonial causes. So in that sense, we would

submit, this case is a clearer and stronger case

than Gazzo.

Then His Honour went on to deal with the question of whether it could be said that either

under the implied or express incidental power the

section could be supported, and he dealt with that

at page 238. What he said, at about point 2 was:

P(2) 58 2/2/94

An order made under Pt VIII is none the less

effective be~ause an instrument executed in

accordance with its commands is subject to

stamp duty -

and the next but one sentence:

The purpose of such an order can be fully achieved whether or not duty is payable on an instrument made in accordance with it.

It may be said surely that is the difference

in the present case. Section 35 is preventing the

parents, or the court, from bringing about the

sterilization. In our submission, that is where it

is important to remember what I call that

four-stage analysis because in this area in our
relevant submission the parental or proxy powers
are purely facultative, and so to say here you are

stopping the parents bringing about the

sterilization is to, as it were, use an argument

which is not the relevant argument because at the most anyone in the community can do is decide the
medical procedure is for his or her benefit and

agree to it being done.

None of us ever have, as far as we are aware,

the right to insist that it be done,

notwithstanding any other laws that exist. Our

point is that, again, that sort of argument that

was deployed in Gazzo, namely, "You are interfering

here with the achievement of what is sought to be

done" is not the relevant argument. Another

difference is that Gazzo was dealing with something
- and it is perhaps only another way of saying the

same thing - that lay within the power of the

parties. The court ordered the parties to transfer

certain property. That is a capacity which the

parties had, to make the transfer, subject only to

getting the thing registered. Here, the relevant

power is what I call the facultative or

facilitative thing of giving the consent.

We are not talking about a power which in our system of law is a power to say the operation will

be done, because you still have to go out and find

a doctor who is willing, you have to satisfy the

doctor that the procedure is one permissible under

the law of the place, and there has to be

facilities in which it can properly be done.

McHUGH J:  In this particular case the order sought and if

granted would name a particular doctor.

MR DOYLE: Apparently, although obviously at this stage we

do not want to be pedantic. The material does not

make it at all clear how the order is going to be

P(2) 59 2/2/94

worded to indicate to this docto~, misleadingly or

otherwise, that he, as it were, may now go ahead

and do it notwithstanding section 35. So we do not

know the precise terms of the proposed order but I

do not complain about that.

Your Honours, could I just refer to one other

passage in Sir Harry Gibbs' judgment. At page 240
point 6 he made what we submit is a valid

observation where he says:

These decisions show that a provision cannot

be said to be incidental to the subject matter

of a power simply because in a general way it

facilitates the execution of the power.

We submit that also is true as a general

proposition.

Your Honour the present Chief Justice was in dissent in Gazzo, but it is interesting - if

Your Honours could look at page 248, what

Your Honour said there in effect was if it is

within power to require one party of a marriage to
transfer property to the other - then at about

point 9 Your Honour said:

I find it difficult to perceive why the power

does not extend to freeing the transfer from

duty.

In our respectful submission, whatever force that

observation may have, in the present case the true
analogy would be an order requiring the husband to

transfer to his wife shares in a proprietary

company in which he was not a director or over

which he had no power. As we understand the cases,

the Family Court could not require under the

marriage power that company to register the

transfer because to do so would be to go outside

the marriage power.	I am assuming always that the
husband is not behind the scenes doing things which
make the conduct of the company a sham.	It would

be going beyond power to require the company to

exercise its power so as to register the transfer.

The company must be permitted to make its own

decision in the usual way.	So again we submit that
analogy is helpful.

Our case is one where the relevant analogy

would be the wife presenting the share transfer and

the Family Court trying to require the company to

register the transfer. As we understand the cases,

that is not within power. So, Your Honours, viewed

that way and drawing on our submissions as on the

question of construction, we submit that the

proposed order also travels beyond power because in

P(2) 60 2/2/94

the sense explained it has gone outside the

marriage relationship.

I think I have said all I want to say about

what was said at page 261 in Marion but just in

case I have not, could I just once again refer to

page 261 in Marion's Case and those remarks that

were read to Your Honours earlier. It is clear

enough. Our submission is that on the question of

power, again yes, sterilization of a child of a

marriage does arise out of the marriage

relationship in that facilitative or facultative

sense, not in the compulsive or dispositive sense

in which an order is being sought in the present

case. So we would simply submit that that dictum

has to be qualified in that way but that it was

never intended to be given any, as it were,

unqualified operation. It is to be read in the

context of the law as it was in that case. They

are our submissions, if the Court pleases.

MASON CJ:  Thank you, Mr Solicitor. Mr Nicholls, I do not

know whether you are going to make application for

leave to intervene. If you are, then perhaps you

have to give consideration at this stage to whether

or not you are proposing to support the arguments
presented by the Solicitor-General for New South

Wales, or whether you are going to support the

arguments presented by Mr Jackson and the

Solicitor-General for the Commonwealth.

MR NICHOLLS:  Yes, Your Honour, it was my intention to make

the application at this stage. Perhaps it would be appropriate to hand for Your Honours' consideration

our outline which sets out the basis on which we

intend to intervene.

MASON CJ:  Mr Nicholls, it seems to me there is a real

problem about what you are asking us to do.	You
are asking us to enunciate in general terms
guidelines as to how the court's discretion is to

be generally exercised. That is not the task that

is facing us in this case. We are asked by the

stated case to resolve certain questions that have

been put.

MR NICHOLLS: 

Your Honour, the submissions in that respect

are phrased too broadly. Our only involvement
pursuant to the Human Rights Act is in respect of
question 4 to the extent that inconsistency has

always been - it has always been relevant to

determine the question of inconsistency, what

rights have been affected and to what degree. Our

submissions in this case are not to support either
the respondent or the applicant because it is our

submission that it is not capable, and we have

given three examples there, to say conclusively

P(2) 61 2/2/94

whether rights are being affected by the coPflict

between section 64 and section 35. So that is our

submission, our submission on the state of the law.

It is not possible for someone ..... or even for the

litigant in fact in this case, which is, I suppose,

the child, to say conclusively how their rights are

going to be affected by the conflict or lack of one

between section 35 and section 64. So that would

be the limit of our involvement in this case.

MASON CJ: Are you happy for us to take under consideration

this document you have handed up?

MR NICHOLLS:  Yes, Your Honour. It is phrased too broadly,

in the sense that we are not submitting that a

whole spectrum of guidelines and some sort of

legislative function has to be performed in this

case. It may even be that there is no possibility

of resolving that issue in the case, nor it may not

be necessary for the Court to answer question 4 in

any event, but - - -

MASON CJ: Well, that is a possibility, yes.

MR NICHOLLS:  But our submission is that the question of

rights of the litigant in fact in this case - it is

very hard for them to say by reference to those

examples, where they would stand on an

inconsistency question, because there is pros and

cons, so to speak, in respect of their rights in

respect of both pieces of legislation.

BRENNAN J:	I do not understand what you are saying. Are you saying that the Commission does not want to
make any submissions about whether there is
inconsistency or not, or are you saying that the
state of the case is such that, as a substantive
argument yo·u want to say that it is impossible to
answer the question?

MR NICHOLLS:  We would say that in the absence of further direction from this Court as to the procedural

safeguards and the basis of the discretion and how
it is exercised, it would be, at the very least,

impossible for the actual, in effect,

litigant - - -

BRENNAN J: But we are not concerned, if I might say so,

with these questions as to the difficulties facing
the litigant, as such, we are concerned with the
question of "Is there inconsistency or is there

not?".

DAWSON J: What you are saying is the breadth of the

discretion - until you know the breadth of the
discretion you cannot say whether there is

inconsistency.

P(2) 62 2/2/94

MR NICHOLLS: Exactly, Your Honour, because that is the

extent of the federal law. Kakariki's case has

been mentioned as activating that federal law and

it is the basis on which that federal law is

activated that determines the scope of the federal

law and, as Chief Justice Barwick said in wardley's

case, the starting point is to find out the full

scope of the federal law and inconsistency, and

because you cannot determine the full scope of the

federal law and the procedural safeguards Marion's

Case gives, which was the whole purpose of that

case, until you can determine that, how can you

determine inconsistency? And we say you cannot

determine the full scope of the federal law and we

were intervening solely to put that point of view

to the Court for its consideration.

MASON CJ:  I think the message has been received, and if

that is the purpose you are seeking leave to

intervene, I think you can take it that they have

received the message.

MR NICHOLLS:  Yes. Your Honour, it may be possible for us,

on that particular score, not to say too much

further except to say that we would urge the

Court - it may want to hear from us for a short

time about what we say is the easy remedy or the

possible remedy as to curing that problem of

determining the scope of the federal law, because

we say that, in this case, if the Court has to

decide the consistency issue to determine the full

scope of the federal law, that it is possible to do

it in this case, but I am in Your Honours' hands on

that point.

MASON CJ:  Mr Nicholls, I indicated to you before that the

Court is prepared to take account of this document you have handed up so far as it relates to the

issues, but I am not sure that your participation

beyond that is really going to be of assistance

because, as I said, we are confined to a

consideration of the questions that have been

stated.

MR NICHOLLS:  Yes, Your Honour. Our position was always

going to be limited to the fact that we say the
full scope of the federal law cannot be determined

without clarification being made on the basis which the activating order is going to be made, the width of the discretion, and in Mr Jackson's submissions

he points out they are the two constraints on

federal power; one is the statute and second is the

judicial discretion. And we say, well, the statute

can be looked, and its terms are simple, but the

second constraint on.the law is the discretion and

we say that whilst the discretion is at large, so

to speak - and this was a concern of Your Honour

P(2) 63 2/2/94

Justice Brennan in Marion's Case, that the

discretion is at large - it is very difficult to

say to what extent a State law would impinge upon

it, and that was our submission. We have prepared

written submissions in respect of the way that that
discretion under section 64 could appropriately be

dealt with; that that was our involvement in this

matter, and to the extent that we could not be

certain as to the width of the federal law, it was

impossible to take a position on which Act is

better serving of human rights in this particular

area.

MASON CJ: Mr Nicholls, the view of the Court is that we are prepared to take account of your document in so far as that document bears on the issues in this case,

and that means that in so far as it bears on

question 4. But beyond that, we are not prepared

to go further.

MR NICHOLLS:  Yes, I am in Your Honours' hands. To complete

that document you have in Your Honour's hands

though, it refers to a document which I was not

going to use as submissions, but it sets out, it is

basically a collection of relevant authorities and

material in this matter relating to the human

rights aspects. So I would seek to hand that

matter for Your Honours' consideration. If the

Court pleases.

MASON CJ: Thank you, Mr Nicholls. Mr Jackson.

MR JACKSON:  Your Honours, may I hand to the Court a copy of

our outline of submissions?

MASON CJ:  Yes?

MR JACKSON:  Thank you, Your Honours. Your Honours, one

really should, in our submission, start from the

Constitution without any pre-conception that it and

laws made pursuant to it by the Commonwealth are

not intended to impinge on or affect the common law

or the statute law of the States. That, after all, is what covering clause 5 says in terms.

Now, Your Honours, could I move from that to

the matter dealt with in paragraph 2 of our outline

of submissions. In that regard, Your Honours, may

I say that I - Your Honours I was about to move to

the matter set out in paragraph 2 of our outline of

submissions. May I preface that by saying that the
order of events which I propose to adopt in our

submissions is broadly to follow the order there

set out. There are some matters on which I wish to

address some additional submissions in the course

or doing so.

P(2) 64 2/2/94

Your Honours, we would submit that, in terms

the decision of or the reasons for judgment of fo~r

members of the Court in Marion's Case, (1991-1992)

175 CLR 218, at page 261, say that the conferral of

jurisdiction on the Family Court to authorize the

procedures is supported by both the powers in

question. Your Honours, may I go for just a moment

to that passage, and Your Honours will see that in
the penultimate paragraph on page 261 what I have

just said is expressed in exactly those terms, and

Your Honours, there is no reason, in our

submission, why that proposition, whatever be its

particular application, should not be adopted in
the present case.

Your Honours, it is also to an extent, if I may put it in that relatively ambulatory and

perhaps neutral way for the moment, supported by

Your Honour Justice McHugh at page 318 at the top

of the page:

For the reasons given by Mason CJ, Dawson,

Toohey and Gaudron JJ, I am of the opinion

that that Court does have a jurisdiction

similar to the parens patriae jurisdiction.

No doubt one needs to interpret a little what

Your Honour meant, but Your Honour appears to be

adopting the reasoning of the four members of the
Court.

We would submit that the expression of view in the passage to which I referred at page 261 was an

expression in the plainest terms and an expression

of view that is, if I may say so with respect,

manifestly right. Your Honours, if one looks for

just a moment to two things: the first being the

observations that have been made in other cases in

the court about the relationship of children to

marriage on the one hand; and if one looks also at

the provisions of the Act which deal with the

topic, speaking in broad terms for the moment, we

would submit it is manifest that the provisions

dealing with welfare of the kind in question are

ones that are within the marriage power.

BRENNAN J:  Mr Jackson, can I take you back to that

paragraph on which you rely in the joint judgment.

Let it be assumed that there is a child who, for

reasons, for example, of inheritance would be

better sterilized, are you saying that it would be

within the jurisdiction of the Family Court
conferred under the marriage power to authorize the

parents or for that court itself to authorize a

sterilization of that child because the child is a

child of a marriage?

P(2)	65	2/2/94
MR JACKSON:	Could I say a couple of things about that.	The

first is one would think that the unruly horse of
public policy would strike out any such underlying
provision. That is the first thing. The second

thing, Your Honour, in relation to the question of

jurisdiction, perhaps the answer is, "Yes". But

the question whether the exercise of jurisdiction

would be in favour of it or could ever be in favour

of it might be a different thing. What I am going

to say in just a moment is that the width of the

power conferred by section Sl(xxi) is in relation

to marriage and Sl(xxii) in relation to the other

matters there referred to. However, one does not

seize on the child of the marriage simply because

it is the child of the marriage. What is being

looked to is whether there is a law with respect to

marriage or with respect to a topic in Sl(xxii).

There are no doubt edges, and I do not suggest the

court was suggesting what Your Honour has put to me

in that passage.

BRENNAN J:  I cannot imagine that the bare proposition that

a question of sterilization arises out of the

marriage relationship can be prayed in aid in the

generality of its terms. Every boy is to be

preserved as a soprano; the thought is horrifying.

MR JACKSON:  Indeed, Your Honour. I do not suggest that

that is what the Court intended to convey for a

moment but having said that, what the Court was

speaking about was sterilization in the type of

context that is referred to in the case and the

same type of context as arises here. Your Honour,

no doubt one can always have the most bizarre

examples that one can choose to test the edge of

the power. But having said that, it does not

follow that every bizarre example is something that

would fall within the power; the powers all have to

be read together.

All I am seeking to say, Your Honour, is this, that in that case four members of the Court

expressed the view that the jurisdiction of the

Family Court was a jurisdiction which would - that

Constitution circumstances such as the present where the orders

the would empower the conferral on the

were for the welfare of the child. Two examples

Your Honour has put to me deserve, if I may say so

with respect, the scant fate that was given to a

submission I made to the Court in Marion's Case

that someone has adopted today, about the ability

to cut off a child's arm so it can be a beggar and it may be that it would make a lot of money out of

doing that. But the welfare of the child is a

concept in the sense that the Court said in that

case would not cover - that could never be for the

P(2) 66 2/2/94

welfare of a child, it was said. Your Honour a

similar thing would apply, we would submit, t~ both

those examples.

TOOHEY J: It is worth recalling too, I think, Mr Jackson, that the judgment gave sterilization a particular

meaning, if you look at page 229, which is the

meaning to be adopted throughout the balance of the

judgment; it was speaking of sterilization in a

particular situation, namely the situation which

prevailed in Marion's Case.

MR JACKSON:  Your Honour, that is correct and there is, in

effect, a definition clause in that part of the

judgment, and that is what this case is about,

something of that kind. So what we would submit is

that that part of the judgment is one that supports

the view that the conferral of jurisdiction on the

Family Court in cases such as the present is supported by both those powers.

Now, Your Honour, I was going to go, in the marriage, to two things: one, to provisions of the

Act, which I will do very briefly, and the other

being a short summary of the decisions on the

point. If I could deal with the second one first,

one sees in In the marriage of Cormick, (1984)

156 CLR 170, at the bottom of page 175 and at the

top of page 176, where Chief Justice Gibbs, who

wrote the principal judgment in the case, said:

It is now well settled that "marriage" in

section 51(xxi) includes the relationship or

institution of marriage and, since the

protection and nurture of the children of the.

marriage is at the very heart of the

relationship, that the power to make laws with
respect to marriage -

et cetera. Your Honours will see the reference

there to "nurture" and when one has situations

where there is a marriage, there are children of

the marriage, the children of the marriage are still not adult and, Your Honours, they are in situations where, for their nurture, for their

proper protection, there has to be given

consideration to the question whether there be

particular operations undergone, that, in our

submission, is something which lies at the heart of

the concept of their nurturing and their welfare.

Your Honours, if one goes to the Family Law

Act itself, what one sees in relation to this aspect - and I will come to the detail of it in

just a moment - but Your Honours will see that

under section 63F(l), each of the parents of a

child:

P(2) 67 2/2/94

is a guardian of the child -

and they:

have the joint custody of the child.

Under section 63E(l) as guardians they have:

responsibility for the long-term welfare of

the child -

and Your Honours, responsibility for the long-term

welfare of the child is a matter, in our

submission, which might well extend - and indeed,

in our submission, does extend - to the making of
any necessary application to a court which it might

be necessary to make to obtain authorization for

surgical procedures of the kind presently in

question.

Your Honours, in Marion's Case the Court also

said that the welfare of the child of the marriage

is a matter which arises under Part VII of the

Family Law Act for the purposes of conferral of the

jurisdiction on that court under section 63(1).

Your Honours, the relevant passage first in

Marion's Case is at page 257, and Your Honours will

see at about point 4 it was said:

Whether the source of jurisdiction is to

be found primarily in s.64 along with

s.63(1) ..... or a much wider range of sections

in Pt VII ..... it is clear that the welfare of

a child of a marriage is a "matter" which

arises under Pt VII for the purposes of

s.63(1) and is, therefore, an independent

subject which may support proceedings before

the Family Court.

And, Your Honours, at page 318, at point 1, is the

part where Your Honour Justice McHugh adopted,

amongst other things, that part of the reasoning of	the four members of the Court and, Your Honours, at
page 294, about point 7, Your Honour Justice Deane
said, in the second sentence of the paragraph
commencing on that page:

At least as regards a child of a marriage,

such as Marion, the combined effect of s.63(1) and s.64(1) ..... is to confer jurisdiction upon

the Family Court to make such orders "as it

considers proper" (s.64(l)(c)) "in relation to

the welfare of ... a child" -

And Your Honour went on to speak of the ambit of

the jurisdiction.

P(2) 68 2 2/94

Now, Your Honours, the expressions which we

have used, in paragraph 3 of our outline of

submissions, derive from those passages, and could

I refer also, Your Honours, to section 3l(l)(c) of

the Family Law Act, which says that:

Jurisdiction is conferred on the Family Court with respect to .... .

(d) matters ..... with respect to which

proceedings may be instituted in the Family

Court under this Act or any other Act.

And, Your Honours, finally, section 63(1) says

that:

Jurisdiction is conferred on the Family

Court ..... in relation to matters arising under

this Part.

Your Honours, could I pause at that point to

say also that if one goes to section 63A(l), it

provides specifically that:

Proceedings that may be instituted under this

Part shall not ..... be instituted otherwise than under this Part.

I will come to develop the point a little later but

if it be the fact, as in our submission it is, that

proceedings of the present kind seeking orders of

the present kind may be instituted in the Family

Court, then they cannot, in our submission, be

instituted in the Guardianship Tribunal. I will

take Your Honours to the provisions governing the

conduct of the Guardianship Tribunal which make it

apparent that it is to conduct proceedings and is

established for various purposes in the same way as

a court.

Your Honours, moving from that to paragraph 4, what we do submit is that the concept of the	welfare of a child must include the question
whether the child should or should not undergo
treatment of the relevant kind and if so, in what
circumstances and upon what terms. Our learned
friends from South Australia cavil at that a little but, in our submission, it is clear that the
concept of welfare includes the question whether it
is proper or appropriate for such an operation to
be carried out where and when, by whom and on what
terms.

Your Honours, in cases where one has a child

who is intellectually disabled in the relevant respects it is difficult, we would submit with

P(2) 69 2/2/94

respect, to regard the question as not being one

which related to the welfare of that child.

In that regard, could we say first that the

term "welfare" in the Family Law Act does not

appear to be in any way limited in its scope. We

would also submit that the provisions of section 64

make it apparent that the term is to be afforded a

wide significance. May I take Your Honours briefly

to the several provisions to which we refer in

paragraph 4. First to section 64(l)(a) which is

the introductory provision. It says:

the court must regard the welfare of the child

as the paramount consideration.

Secondly, to several of the provisions of

section 64(l)(bb). Your Honours will see there in

paragraph (iii) first:

the desirability of, and the effect of, any

change in the existing arrangements for the

care of the child.

One moves on from that to (v):

the capacity of the parent, or of any other
person, to provide adequately for the needs of

the child, including the emotional and

intellectual needs of the child.

Then paragraph (va):

the need to protect the child from abuse, ill

treatment, or exposure or subjection to

behaviour which psychologically harms the

child.

Then paragraph (vi):

any other fact or circumstance ..... that, in

the opinion of the court, the welfare of the

child requires to be taken into account.

Your Honours, the point I seek to make about

it is that there is no exhaustive definition of the

term "welfare" and such provisions as there are

dealing with the term make it apparent that it is

to be given a wide meaning.

TOOHEY J: Paragraph (va) might point up some distinction

that could arise, for instance:

the need to protect the child from abuse, ill

treatment or exposure or subjection to

behaviour which psychologically harms the

child -

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clearly enough would justify an order protecting

the child from one of its parents where any of

those elements existed. Query how far the

is involved. jurisdiction of the court might go where a stranger

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

to that, two things. The first is really this,

Your Honour, that I do not seek to suggest that

paragraph (va) by itself is a provision which

necessarily covers or perhaps does cover at all the

present case. All I am using it for is to suggest

that it is one of the provisions that indicates

that no limited meaning is to be given to the

concept of welfare. That is the first thing.

The second thing, Your Honour, is this, that in proceedings in relation to the welfare of a

child of a marriage, if one assumes for the moment that they are read down by one of the reading down provisions in the Act so that they only apply, for

example, to a child of the marriage in, for
example, proceedings instituted by one of the

guardians who is relevantly a parent, then there

would seem no reason why an order might not be made

to protect the welfare of the child, the order

having effect as against third persons. I think I

could give Your Honour tomorrow a reference to a

decision of the Court in that regard.

Your Honour, I was also going to refer to

section 43(c).

DEANE J:  Mr Jackson, those provisions, and I know this is

something that keeps being raised, but those

provisions would obviously cover an order that a

child be removed from a State institution to which

he or she had been committed for criminal conduct.

Now, what would you say in relation to that?

MR JACKSON: Well, Your Honour, that is why one has

provisions like 60H?

DEANE J: Well, I will assume it is not a child welfare ward

that we are talking about.

MR JACKSON:  One gets towards the edge of the power in some

cases. Your Honours will see examples of that in

the two Plummer cases, Reg v Demack and

Reg V Lambert, in each case Exparte Plummer. Could

I just say, Your Honour, that one might think at

first sight that the making of an order that, for

example, a child being released from a State home

where the child had been committed by an order of a

State magistrate, for example, for a long list of

petty crimes, might be something that could never

P(2) 71 2/2/94

be for the welfare of the child. And, indeed Your

Honour, I would have - - -

DEANE J: What, an order for its removal?

MR JACKSON:	Yes, Your Honour, from there.
DEANE J:	I would have thought it was obvious that if one

looked at the welfare of the child it would very

frequently be -

MR JACKSON:  I am sorry, Your Honour, what I was going to

say about it was one might have thought, meaning by

that, Your Honour, is that some people might have

thought that but, in fact, there appears to be a

developing school of thought about which there has

been a significant controversy in the United

Kingdom in the last few weeks about the extent to

which it is appropriate in respect of young

offenders of that kind to provide for them.	The
matter that seemed to excite the particular

controversy in the papers was whether they should

be taken on holiday trips, they having come from

fairly deprived backgrounds and never having seen

anywhere apart from their own areas.

All I am seeking to say about that - I do not

want to get into any debate about that, of course - is simply to say there may be cases where it is for the welfare of the child to remove the child from

custodial care.

DEANE J: That was implicit in my question to you,

Mr Jackson.

MR JACKSON:	Yes.
DEANE J:	In those cases you would say the Family Court

could order removal, or if not, why would you
distinguish?

MR JACKSON:  Your Honour, what we would submit is, if one is

speaking of the child of the marriage, someone who

remains a child, it would be possible for such an

order to be made and that is why one sees

restrictions upon it such as those in section 60H.

Inevitably one might say that there are

circumstances where there is a coincidence in the

sense that the law has hit, and one might think

that perhaps in some cases the Constitution could

not be intending to say that the - - -

DEANE J:  My question was not directed so much to

constitutional powers as to the construction of

this Act. ·

P(2)	72	2/2/94
MR JACKSON:	Yes.	There may not always be one answer to it.

What I mean by that is, Your Honour·, it might well

be possible to say the concept of welfare would

encompass in the case of, say, a nine-year-old

child who was imprisoned pursuant to a State law

for minor offences - it might be possible to say
that the concept of welfare would, of course,

include the question whether the child should

continue to be imprisoned. If one went, however,

to the case of a seventeen-year-old child, or a

child of sixteen, perhaps, it might be difficult to

say that there would be any circumstances in which

that could be regarded as being a matter of

welfare. The concept of welfare itself must have a

slightly ambulatory meaning.

DEANE J: Except the last words of (va) would seem almost

designed to cover that case.

MR JACKSON: Well, Your Honour, maybe, maybe not, with

respect; it is possible, yes. Your Honours, I was

going to refer the Court, I think, to section 43(c)

and it also indicates that there is no relevant

restriction on the concept of welfare.

Your Honours, the next thing we would say is

that as Marion's Case demonstrates, the nature of

the parens patriae jurisdiction is not limited in

any way which would exclude treatments of the kind

presently in question. Could I take Your Honours

to the passages to which we refer?

MASON CJ:  Mr Jackson, we will adjourn now.

MR GRIFFITH: Could I hand to the Court our written

submissions now and that may possibly make our
submissions shorter tomorrow.

MASON CJ: Yes, by all means. Court will adjourn until

10 am tomorrow.

AT 4.24 PM THE MATTER WAS ADJOURNED

UNTIL WEDNESDAY, 3 FEBRUARY 1994

P(2) 73 2/2/94