Masson v Parsons

[2019] HCATrans 79

[2019] HCATrans 079

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S6 of 2019

B e t w e e n -

MASSON

Appellant

and

PARSONS

First Respondent

PARSONS

Second Respondent

INDEPENDENT CHILDREN’S LAWYER

Third Respondent

KIEFEL CJ
BELL J
GAGELER J
KEANE J
NETTLE J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 16 APRIL 2019, AT 10.00 AM

Copyright in the High Court of Australia

____________________

MR M.P. KEARNEY, SC:   May it please the Court, I appear with my learned friends, MR C.L. LENEHAN, MS E.A. LAWSON and MR D.P. HUME on behalf of the appellant.  (instructed by (Steiner Legal)

MR B.W. WALKER, SC:   May it please the Court, I appear with my learned friends, MS M. McMAHON and MR J.S. STELLIOS for the first and second respondents.  (instructed by McDonald Johnson Lawyers)

MR S.B. LLOYD, SC:   If it please the Court, I appear with MS S.M. CHRISTIE, SC and MR P.D. HERZFELD for the third respondent.  (instructed by Legal Aid NSW)

MR S.P. DONAGHUE, QC, Solicitor‑General of the Commonwealth of Australia:   May it please the Court, I appear with MR B.K. LIM for the Commonwealth Attorney‑General intervening.  (instructed by the Australian Government Solicitor)

MS R.M. DOYLE, SC:   May it please the Court, I appear with my MS F.I. GORDON for the Attorney‑General for the State of Victoria intervening.  (instructed by the Victorian Government Solicitor)

KIEFEL CJ:   Ms Doyle, while you are at the lectern, I see that in the appellant’s reply issue is taken with that part of your argument which seeks to develop the common law and the point taken against you is a not inconsiderable one, it is a rather large topic on its own but, more importantly, does not find itself in the section 78B notice and puts your position as intervener somewhat curiously.  The central point seems to be that it just has not been argued and is no part of the appeal before the Court.

MS DOYLE:   We corresponded with our friends about this in early April, and indicated that we had given some consideration to this matter, and took their point this way.  An intervener obviously cannot file a notice of contention but it is understood since the decision in K‑Generation that there may be an occasion for seeking an analogous procedure.  The expedition which this matter has received and the sequence of events, it is accepted, has put the parties and those seeking to intervene somewhat out of sync.

We accept our friend’s point that a notice of contention or any analogous procedure needing to be addressed, that that matter may have come to a head strictly speaking on the timetable, mid‑January, except that the Commonwealth did not intervene until 22 January and we did not file our notice until the 28th.  In those circumstances, we indicated to our friends that we would have no difficulty in seeking to regularise our position today and we even proposed a form of order that might achieve that.

KIEFEL CJ:   I do not think the procedural aspect, though, quite deals with the question that it is not an issue or a matter which has been taken up by any party.  It forms no part of the appeal.  And the first and second respondents, for whom Mr Walker appears, I do not think have taken it up at all.  So why should it be argued that – I mean, as you say, this is a matter upon which a number of other parties might have been interested as well.

MS DOYLE:   Accepting that, your Honour, the Commonwealth in a sense might have anticipated an aspect of our argument on the Commonwealth submission in this way.  They refer, I think it is paragraph 27, and if not it is paragraph 31 of their submissions, to the decision of Justice Guest in Re Patrick.

In that decision, his Honour did make the remark, or did opine upon the question as to whether or not the Commonwealth Act and the provisions in the Family Law Act should be read in light of the presumptions in the State laws; that is the first issue.  We saw our friends as somewhat anticipating that potential argument.  Equally each of the appellant and the Commonwealth, and ultimately the first and second respondents when we saw their submissions, engaged with the question of the natural or ordinary meaning of the word “parent”.

KIEFEL CJ:   That is distinct from any common law meaning, though, is it not?

MS DOYLE:   It is, but on one view the submissions that Victoria is advancing on that topic are no more than the other side of the coin or another way of coming at that question, namely, if there be a natural and ordinary meaning, is it infused or informed by what the common law would say and then, in turn, as a springboard to that, our argument pertaining to the State laws.

KIEFEL CJ:   Each other party ‑ the appellant and the respondent and the Commonwealth intervening – have, as their starting point, and I do not think there is any issue about this, that there is an ordinary meaning of “parent” and that is the basis upon which the Family Law Act proceeds.  No

other party is seeking to raise this.  I should hear from Mr  Kearney in relation to the attitude the appellant takes.

MS DOYLE:   Yes, certainly.

MR KEARNEY:   Thank you, your Honour.  Mr Lenehan will speak to this preliminary point, if it please the Court.

MR LENEHAN:   Your Honours, we do oppose that argument being advanced for essentially the reasons that your Honour the Chief Justice has identified and which appear in our reply.  There are, and we have put this in our reply, large prudential reasons for not permitting that argument to be advanced. 

It is not correct to say that it appears in any clear form in any of the submissions of the parties, including the Commonwealth, and, as your Honour the Chief Justice has said, there may well have been other parties not before the Court, including polities, who may have wished to have been heard on that large issue.  For those reasons, we do say that the argument should not be allowed to be advanced now.

KIEFEL CJ:   Do you wish to say anything in response, Ms Doyle?

MS DOYLE:   The only other matter I ought to advance is to put my earlier submission in this context.  It is clear from the decision in K‑Generation that determining this question – and that is whether or not a non‑party should be given leave to advance a new argument, to put it in simple terms – is obviously to be determined by reference to the context ‑ that includes the grounds of appeal in this Court and, in most circumstances, in the court below and the submissions that have passed between the parties.

In my earlier remarks, of course, I did not remind the Court that the notice of appeal, which is in the core court book at page 142, contains two broad grounds, one of which engages with the question of whether or not below there was a failure to apply the relevant law and ground 3, whether or not there was a failure to apply the relevant legal principles or the relevant legislative pathway - very broad grounds of appeal, each of which in different ways, in our submission, engage with the inquiry into the meaning of the word “parent”, admittedly in circumstances where other parties have focused on what is said to be the ordinary meaning.

In our submission, expanding that topic to include a consideration of the common law meaning is not as much of a stretch as might be the case if it were a wholly new topic rather than an interrogation of the meaning of a single term in the federal Act.  Against that context we have said both to our friends when we corresponded with them in April and we submit again

today that Victoria’s submissions are no more than responsive to the question of the meaning of the word “parent”.  I cannot take those matters any further, though, your Honour.

KIEFEL CJ:   Thank you, Ms Doyle.  The Court considers that Victoria should restrict its submissions on intervention to the issues raised by the parties and reflected in the section 78B notice.  Thank you, Ms Doyle.  Yes, Mr Kearney.

MR KEARNEY:   Thank you, your Honour.  Your Honours, can I start with some general propositions and it is our contention that the Family Law Act as a matter of construction is complete on its face, that is, provides a complete answer as to who is a parent for the purpose of the Family Law Act and in so doing it leaves no room for the operation of section 14 of the Status of Children Act (NSW) and it evinces clearly an intention that no State legislation has a role in such determination save to the extent incorporated within the Act itself. But each of these provisions require, of course, fundamentally, a consideration of the construction of the Family Law Act which I will turn momentarily.

But before doing so, can I make some general observations as to the concept of parenthood?  We say that the status of parent is one which is very significant, not only for the parent but also for the child.  This Court made that point in G v H (1994) 181 CLR 387 which is in a bundle which has been provided for the Court his morning, where in that case, their Honours Justices Brennan and McHugh said that:

paternity carries with it both significant privileges and grave responsibilities, only some of which relate to monetary obligations . . . a finding that a particular man is the child’s father might well be of the greatest significance to the child in establishing his or her lifetime identity. 

Their Honours Justices Deane, Dawson and Gaudron also observed in similar terms.  A similar point has been made elsewhere on other occasions and if I could give your Honours just one further reference to the House of Lords in Re D [2005] 2 AC 621 at paragraphs 5 and 6.

The next starting observation that I wish to make is to distinguish between the different kinds of parentage which the authorities have referred to and as far as we have ascertained the leading authority on this issue in the common law world is the decision of Lady Justice Hale which was joined in by the other Lords in Re G [2006] UKHL 43 and again a decision that has found its way to the Court this morning in the bundle. If I could take your Honours to paragraph 33 of that judgment, where her Honour there referred to:

three ways in which a person may be or become a natural parent of a child . . . The first is genetic parenthood:  the provision of the gametes ‑

that is the person who provides the sperm and the person who provides the egg.  Some of the cases refer to these persons as the biological parents.  The second kind of parenthood is addressed in paragraph 34 - “gestational parenthood”, that is, of course, the female who carries the child and who gives birth to the child.  The third kind of parenthood that Lady Hale described in paragraph 35, consistently with other authorities and literature referred to therein, is that of social and psychological parenthood.  Your Honours will see from that paragraph without me reading it what that concept is said to involve.

Lady Justice Hale at paragraph 36 makes the point that the natural mother normally combines all three kinds of parenthood and the natural father normally will combine the first and the third kinds of parenthood.  However, this will obviously differ depending upon the particular family and the social and technological developments that may have been brought to bear.

It is our case that the ordinary conception of “parent”, as used in the Family Law Act, is one capable of picking up each of these three kinds of parenthood.  Our primary argument is that it is a question of fact in each case, by reference to all of the circumstances.  That being said, we accept that in its ordinary conception it is normally the biological or genetic parents who are considered to be the parents of the child, but there will be cases where that is not so, and gestational parenthood, or particularly social and psychological parenthood, may be the dominant factors. 

In the present case, we say that the appellant was both the genetic parent and also a social psychological parent.  He met both of the criteria that on Lady Hale’s classification a natural father would normally and could possibly meet.  He was, we would say, in the ordinary sense and meaning of the word, a parent for the purposes of the Act and this of course was the finding of the trial judge at first instance.  So we say at the outset that it would be a surprising consequence if nevertheless the applicant was deemed not to be a parent.

Having made those initial observations, your Honours, could I now turn to the Family Law Act itself, which is found in the first joint book at tab 3.  Could I start by taking your Honours to section 4, the definitions section of the Act, which sets out an extended meaning of “parent” for the purposes of Part VII in the terms that appear at page 18 of that first joint book.  Sorry, I have given you the wrong reference there, page 31 I think it was – 31, I apologise, your Honours.

Can I observe in relation to that observation that we say the extension thereby effected is obviously one intended to give “parent” a meaning beyond the meaning that it would otherwise have, including in its terms “an adoptive parent”.  It is our ultimate submission that “parent”, of course, bears its ordinary meaning in the Act unless there is an express or necessarily implied variation to that general position and the definition in section 4 to which I have just taken the Court is an example of that express variation, in this case, an addition to that ordinary concept of “parent”.

GAGELER J:   Is it exclusive?

MR KEARNEY:   We say no, it is not.  It is an addition to it.  We would say further in relation to it that the express extension to adoptive parents is some evidence of an intention that in the normal case, that is, absent variation by that express position, biological parents would be the parents of the child.  That is of course because adoptive parents will normally be or are to become social or psychological parents of a child and parents thereby for the purpose of the Act in the absence of any biological connection. 

Further, and can I pause to observe at this point in relation to that definition, that we would say it represents an express incorporation of provisions of State law in relation to adoptions into the scheme otherwise provided by the Family Law Act. The approach to the definition of “parent” in section 4 can be contrasted to that in the Child Support (Assessment) Act 1989, to which some reference is made by Victoria.

At page 327 of the joint book, the first volume that your Honours have, your Honours will find in section 5 of that legislation a definition, again, of “parent”. By contrast to that, in section 4 of the Family Law Act, is the definition which, again, similarly is expansive but seeks to define by use of the words “mean” in relation to particular categories of person when a parent will be a parent of a child.

It is, as I have said, or we would say, a noticeably different approach to definition to that of section 4 of the Family Law Act. But it is not one that we accept leads to the difficulties that Victoria would contend for, in amongst other things, paragraph 56 of their written summary. Neither, on the construct of that definition, the biological parent is excluded from the Act nor necessarily included by the express terms of the section, unless of course they come within in the context of “artificial insemination” in section 60H.

Contrary to the submissions made against us, that is not the end of the question of a person’s status of parent, nor the liabilities in this context that attach to that status because, under Division 7 of Part VII of the Family Law Act, which your Honours find commencing at paragraph 151 of the first joint appeal book, you will see that a person who is a parent for the purposes of the Family Law Act is still subject to a variety of obligations and liabilities as a parent, whether or not they come within the meaning of the Child Support (Assessment) Act.

Can I return, your Honours, to section 4 and the definition of “parent”.  And, as I have said, it is our submission that that definition does not act to limit the meaning of “parent” for the purpose of that Act, but rather provides an extended meaning to the ordinary conception of a word capable of incorporating the three kinds of parenthood outlined by Lady Hale.  Importantly, we say there is no predetermined or rigid rule provided by the Act – and I will return to this – nor would we say permitted by it.

We, of course, further say that the ordinary meaning of “parent” is one that is complete and exhaustive for the purposes of the Act.  Ordinarily, a child will have two parents, but it is not necessary, we would say, to decide that in this case because there was no issue here as to whether there were three or more or, indeed, other than two parents.

Can I say, further and ordinarily a man who is both a biological and social parent of a child will, under the Family Law Act, and within the ordinary meaning of the term, be a child’s parent.  But, again, critically, we say it is a question of fact to be determined in each case by reference to all of the relevant circumstances.  And we say it is incompatible with that ordinary meaning for a law to seek to erect rigid rules which, we would say, is the effect of section 14 of the State Act and in submissions that I will return to later we say that this means two things. 

Firstly, that section 79 cannot pick up section 14, even if it be a law to which section 79 potentially applies, because we would contend the Family Law Act otherwise provides for the purposes of the Judiciary Act. And, secondly, it is wrong to suggest that section 14 otherwise has relevance to the issues that arise under the Family Law Act by reason of, amongst other things, the operation of section 109.

Your Honours, whilst I remain in section 4 for the moment, can I note the definition of “child” that appears at page 18 of the book and your Honours will again note that the definition is an inclusive one.  Now, there are a number of definitions in Part VII of the Act that refer to “child” and we say, at least absent contrary provision, “parent” and “child” are binary or corollary concepts within the Act.

If a person is a parent of a child, then the child is a child of that parent, as a matter of ordinary language.  But it is also a position that has been taken in the authorities, and can I give your Honours just one reference that is not in the joint books, being that of Tobin of the Full Court of the Family Court of (1999) 150 FLR 185.

Also as appears, and I do not ask your Honours to turn it up for the moment, the decision of H v Minister for Immigration which appears at tab 32 in the joint books.  We do not think that that proposition is a matter of controversy in this case.  Your Honours, in respect of the section 4 definition of “child”, will see that it said that :

Subdivision D of Division 1 of Part VII affects the situations in which a child is a child of a person –

That is, that the subdivision that includes section 60H, and that is the one that has been the subject of some debate. We emphasise the word “affects”. We say that it indicates a parliamentary intention that there is a presumptive conception of “parent” and “child” which is otherwise affected by the express variations occurring in Subdivision D, including section 60H, and we say the presumptive conception is the ordinary meaning of that phrase.

Further, the definition of “child”, we say, provides both context and meaning to Subdivision D, to which I will return in some more detail in a moment, in that those later provisions affect, as opposed to define or specify, the status of a child in relation to both persons and also in relation to relationships.

We would say tending against the contention of the respondents and also Victoria that section 60H exclusively or exhaustively defines “parent” in the context of artificial insemination and, as I say, I will return to that. It is our contention that section 60H deals only with certain delineated circumstances and not in its terms nor operation with all children born of artificial insemination procedures. It is also notable what the definition of “child” does not say. It does not say, in our respectful submission, that State and Territory laws affect the situations in which a child is the child of a person.

Could I, remaining, and I hope for not too longer, on the definition of “child”, just draw your Honours’ attention to the note that appears below that definition.  The note, we say, manifests an intention if the Part VII applies to all States and Territories.  This is some evidence, we would contend, of the parliamentary intention that there be a uniform concept of “child” with its binary correlative parent throughout the Commonwealth.

Whilst remaining in section 4, could I invite your Honours to turn to page 32 of the book and note simply at this stage the definition of “parentage testing procedure” that appears.  I will come back to this but your Honours will see that the procedure is a medical one, which, it may be assumed, is intended in its terms to seek to identify a biological connection.

Moving forward in the book to page 37 and the definition of “relative”, your Honours will also see that that section assumes that a number of biological relatives of a child are relatives for the purposes of Part VII but notably that the definition does not include biological parents.  Again, we say that that is an indicator that, as a general proposition, Parliament assumed the biological parents would ordinarily be parents of a child within the ordinary meaning.

Could I then take your Honours to Part VII of the Act, which is in many ways the critical part for our purposes. It commences in book one from page 82. Can I make the preliminary observation that Part VII is governed in many instances by the identification of the relationship of the parties to the subject child. By way of example, standing pursuant to section 65C requires establishment of the necessary relationship with a child and, as I have touched upon, under Division 7, a parent may seek and be liable to orders for the payment of maintenance in respect of a child. They are but two very limited examples.

In the context of applications for parenting orders, could I start by taking your Honours to section 60B of the Act, which appears at page 82 of the joint book.  Section 60B sets out various objects and principles but reinforces that which we say would otherwise be implicit, namely, that the best interests of the child are an overriding consideration.  Your Honours see that in the introductions to paragraphs (1) and (2), by way of example.  Your Honours also see the principles include in paragraph (2)(a):

the right [for a child] to know and be cared for by –

and I will come back to this proposition:

both their parents, regardless of –

and I interpolate here, the relationship status of their parents, whether they have been married, separated or, indeed, never lived together.  It also contemplates in paragraph (2)(b) that:

children have a right to spend time on a regular basis with . . . both their parents –

We would say, in distinction in the use of that term, to:

other people significant to their care, welfare and development ‑

Many other provisions throughout Part VII are directed to and giving effect to this overriding object and we draw attention to these particular aspects of it because it is our submission that some evidence is provided here of an intention that there not be rigid rules governing who is a parent.  In each case, the best interests of the child should be an important factor.

There are, as I have said, a number of provisions to this effect in Part VII and another example if your Honours turn to page 88 of the book is to be found in relation to section 60CC which in its terms sets out a variety of matters that a court is to have regard to in determining what is in a children’s best interests.  They refer in a number of those instances to the benefit of a child having a relationship with both of a child’s parents and one sees that, for example, in subsection (2)(a) and through subsection (e) and it continues in other provisions in the Act such as section 60B(1)(b), 65C(a) and 66H which I will not take you directly. 

We say that the legislative assumption that appears therein that a child has two parents has also been relied upon in a number of decisions in the Family Court to hold that biology is a necessary and sufficient condition for the status of parent and the case of Tobin to which I gave you a reference earlier and referred to in the judgment of the Full Court at core book page 120 and 121 is but an example.

Now, I move to say that is not, of course, our primary position but we do note that if it were correct there would have been, in our respectful submission, no appealable error in the primary judge’s decision here as there is no doubt that the appellant was the biological father and is the biological father of the child in issue.

Could I turn back to section 60CC and I have already made reference to subsection (2)(a) and (3)(b) as examples of a number of provisions in the path that depend upon the identification of parents.  Another example, your Honours, is to be found at section 61C where each parent is given parental responsibility for a child subject to an order of the Court.  Thus ‑ and we understand there to be no issue as to this point ‑ it is necessary to identify the parent or parents of a child in order to determine an application for parenting orders pursuant to the Act.

Could I – indicating I will return shortly to it – skip over Subdivision D and move to Subdivision E of Division 12 of the Act which commences at page 215 of the book.  This subdivision sets out a number of provisions relating to the proof of parentage.  Your Honours will see that in section 69V a court may require a person to give evidence material to the issue of parentage and we rely upon this provision to indicate that parentage will normally be an issue of fact to which evidence may be directed.

If one looks to section 69W which provides for the carrying out or parentage testing procedures ‑ and your Honours will remember I took you to that definition moments ago ‑ your Honours will see that those procedures are not otherwise though to be taken as, in our submission, determinative of parentage.

Section 69W(1) speaks of the procedures being ordered or undertaken “to assist in determining the parentage of the child” and 69W(5) talks of the section not affecting “the generality of section 69V” which is the broader determination, we would say, as a matter of fact of the question of the parentage of a child.  It is not to suggest for a moment that biology is not an important factor and, ordinarily, one of considerable significance but to suggest, your Honours, that it is not one that is necessarily determinative.

Your Honours will also see that the immediately prior subdivision, Subdivision D, which commences at page 212, erects a series of presumptions in relation to parentage.  Can I start by making observation about the nature of these presumptions, particularly that they can all be rebutted, save for that which appears in section 69S(1).  And if your Honours turn to that on page 213 your Honours will see what we describe as a special character of that presumption being ‑ ‑ ‑

KIEFEL CJ:   Sorry, which provision was that, 69 ‑ ‑ ‑

MR KEARNEY:   It was 69S.

BELL J:   A number of us are working off the Act so that the references ‑ ‑ ‑

MR KEARNEY:   I apologise, your Honour.  Section 69S(1).  Your Honours will see that, essentially, creates a conclusive presumption where there has been a valid finding by a court that a person is a parent.  We say that this reflects the in rem character of a judicial finding as to parenthood and the need for finality when there has been such a finding made.  But we emphasise that in no other case does the Act provide for a presumption to the irrefutable.  And we say that that would indicate the legislative assumption, again, that parentage is an issue of fact in each case to be determined by reference to all relevant circumstances.

I note that the presumptions in this subdivision are essentially the same as those provided for by Division 1 of Part 3 of the State Act, with the exception of those contained in section 14 to which the appeal in many senses is centrally concerned and to which I will return.

Could I then at this point go to Subdivision D of Division 1, which commences at page 95 of the appeal book and commences with section 60EA of the Act. This subdivision contains a series of provisions addressing children born of artificial insemination procedures, surrogacy arrangements and children of de facto relationships. And, relevantly, in relation to artificial insemination and at page 97, or section 60H of the Act, the following provisions are made: that a child may be a child of a person other than a child’s biological parent in certain circumstances. In subsection (1), by way of example, where there existed a marriage or de facto relationship there was relevant consent of both the other intended parent and donor or a relevant provision of another prescribed law.

The section also provides that in one specified circumstance only – and that again is in section 60H(1) where that section is engaged – that a child is not a child of the donor. And, importantly, the section also provides for the specific recognition of the operation of State law where prescribed and noting, for completeness, that the Family Law Regulations presently so prescribe for sections 1 and 2 ‑ or subsections (1) and (2) ‑ but not subsection (3).

We say, your Honours, and I will return to it again, that it represents a deliberate incorporation of State law into the provisions of the Family Law Act in the context of artificial insemination procedures where that was intended to occur.

One of the issues in debate in this case has been whether section 60H exhaustively or exclusively prescribes who is a parent in the circumstances of artificial insemination. The first respondent and Victoria say that it does, and we disagree with that for a number of reasons.

Firstly, section 60H does not, in its terms, expressly state that it is exhaustive. The argument, we would say, by the first respondent, essentially involves reading into the section the words “a person is only the parent of a child conceived through artificial insemination in the circumstances prescribed in this section” – and we say such an implication as to the effect of the section should not be drawn.

Section 60H addresses three specific scenarios. Where those scenarios are not engaged it is our submission that the normal conception of “parent” in the Act ought operate. To test that for a moment, if section 60H were exhaustive we say it would result in difficult, if not perverse consequences. It could mean that a child has no parents, if none of the scenarios in the section exist, as a result of - that is a child born of an artificial insemination procedure.

For example, if it were to be assumed that a child is born to a woman as a result of the carrying out of an artificial conception procedure, the woman is not married or a de facto partner of another person, and no laws have been prescribed for the purposes of (2) and (3), subsection (1) would not operate, and neither would subsections (2) and (3) – leading to that conclusion.

It is to be recognised also that section 60H(1) does not provide for a child to be the child of his or her biological mother, unless satisfying certain matters. The respondents submit that section 60H does not deal with the position of the biological mother, as such a person has been consistently assumed to be the parent of the child, and pointing, to support, to various historical incarnations of section 60H that have dealt with the other person, by reference to the birth mother.

We say that such assumption is more properly one that is recognised as the application by the Act of the ordinary meaning of “parent” since enactment, one which incorporates the biological mother of a child along with the biological father, subject in each instance only to abrogation of that status by the terms of the Act itself.

Further, and as I have noted before, it is our contention that the language of section 4 and of the heading to Subdivision D which says it “applies to certain children” – and that is the one that appears immediately above section 60EA – do not support the construction contended for.

When read as a whole, it is our submission that the Act relies upon a definition of “parent” incorporating and operating upon the ordinary meaning of that term, for a variety of purposes and a definition that we say is subject only to limited specific, and we say expansionary, attention in the Act.

Having made those observations in relation to the Family Law Act, could I then turn, your Honours, to the State Act which is, of course, the New South Wales Status of Children Act 1996. Before going to the text of that enactment, could I make some points about the historical context upon which some of the written material has touched? Could I take your Honours, firstly, to – and remaining in joint book 1, page 305 ‑ the savings and transitional provisions at Schedule 2? We see from there that what this Act, the State Act, did amongst other things was to repeal the Artificial Conception Act and that emerges from section 37.

The transitional provisions which commence at 306 suggest a legislative intent – that the legislative intent was that the provisions of the State Act ‑ if I can call the current Act ‑ contain provisions that were equivalent to those in the Artificial Conception Act and your Honours will see that appearing in Part 2, clause 2 defining the “repealed presumption Act” as the Artificial Conception Act; clause 6(2) making clear that “A reference” to the “provision of the repealed presumption Act is to be read as a reference to” the equivalent provision of the State Act. 

Could I ask your Honours to ‑ and I will return to that in a moment ‑ go to book 2 and the repealed Act, the Artificial Conception Act 1994? The historical general predecessor to section 14(2) is contained in section 6 of that which is found at book 2, page 731, being section 6(2). I pause to observe in relation to that section that, as with the current Act and section 14, the presumption provided for there is irrebuttable and that emerges from section 6(2). I seek to emphasise that it is one that relied in its terms “for all purposes” and your Honours will see that towards the end of section 6(1). If I could turn your Honours then back to the State Act, the current Act in book 1 at page 297 and turn specifically to section 14(2) ‑ ‑ ‑

BELL J:   I am sorry, where are we going to now?

MR KEARNEY:   I am sorry, your Honour, back to the Status of Children Act and section 14(2) ‑ ‑ ‑

BELL J:   Thank you.

MR KEARNEY: ‑ ‑ ‑ and this is the successor, as it were, to section 6(2) of the Artificial Conception Act to which I just took the Court. It is to be noted that the Act does not now contain the words “for all purposes”. But subject to the one qualification to which I will return and a point advanced by the Commonwealth, there is nothing, I would suggest, in the text to suggest that it has some more confined operation than did its historical predecessor. Could I ask your Honours to compare section 14(2) with, in the same Act, sections 14(5) and (5A) in their text? By contrast to section 14(2), section 14(5) speaks of application of that provision in any proceedings. Where Parliament has intended to confine the presumptions in this Act to court proceedings, it is our submission that it has said so and the absence of words in section 14(2), firstly, indicates that it is not so limited in its application.

As I have already mentioned, like the Artificial Conception Act, section 14(4) provides that the presumption in section 14(2) is to be taken as irrebuttable. We say that that expression, the notion of an irrebuttable presumption so expressed, which applies to all purposes, is in truth a generally applicable rule of law as opposed to a presumption, and one that applies for all purposes pointing to the submission that we advance that section 14(2) in truth is one that regulates an aspect of status in law, rather than amounting to no more than an evidentiary rule.

The concept, as we refer to in our submissions of status in law, was one explained by Chief Justice Latham in Ford v Ford – and I will not take your Honours to that precise text, but the case appears at tab 29 of the joint books, and we refer particularly to paragraph 529.

KIEFEL CJ:   It is put against you that section 17 contemplates proceedings.

MR KEARNEY:   It does.  I will return, if I might, Chief Justice, to that momentarily.

KIEFEL CJ:   Yes.

MR KEARNEY:   But we say ultimately that limited exception does not detract from the proper characterisation otherwise of section 14(2). But as I say, if I might, we will engage with that.

KIEFEL CJ:   Yes.

MR KEARNEY:   Could I pause to observe that we say parentage is, of itself, a well‑recognised example of status.  Look to, for example, the declaration, without taking the Court there, that is available in section 69VA and also look to a discussion in the case, which is not in the books, of AB v CD of the Family Division of the UK High Court of Justice, by reference to The Ampthill Peerage Case [2013] EWHC 1418.

We say the effect of sections 14(2) and (4) is to regulate the membership of the class of persons holding that status, that is of “parent”. It does so by excluding certain members from holding that status, for the purpose of State law in specified circumstances and where - and we are apart from the respondents on this - 14(2) applies we say it is a rule that gives rise to legal consequences and which has application independently of court proceedings. I will return to give some examples to seek to make good that proposition in a moment.

GAGELER J:   Including independently of criminal proceedings?  I am looking at section 18.

MR KEARNEY:   I could not sustain that, your Honour.  I am sorry, I have put that too broadly, yes.  But for all other purposes in terms of operation under New South Wales law, excepting the operation of section 18.

I mentioned earlier, your Honours, the qualification on the proposition that sections 14(2) and (4) were directed to stipulating a rule for all purposes and not ignoring for a moment section 18. We say that on their proper construction they are directed to identifying a person’s status for the purposes of the laws of New South Wales – that is, they are directed to identifying when a person is a parent and so has rights and duties under the laws of New South Wales that apply to parents. The provision is not, in its terms, directed to identifying when a person is a parent for the purpose of laws of the Commonwealth.

GORDON J:   That was given up by the referral, was it not?

MR KEARNEY:  Yes, your Honour, and we give you the references to that in the written material. We say that what follows from the general presumption that the legislature intends only to regulate matters in and of its own jurisdiction and can I give your Honours the reference to section 12(1) of the Interpretation Act 1987 (NSW) and also to the decision of this Court in Solomons v District Court of New South Wales (2002) 211 CLR 119.

Put another way, we say that speaking generally the laws of a Parliament of a State should not be construed as attempting to change the meaning or operation of the law of the Commonwealth or, indeed, of another State legislature, but we say this does not mean that a State law cannot affect the meaning or operation of laws of the Commonwealth to the extent that it can properly do so through the operation of section 79, to which I will come.

Ultimately, we also say that the conclusions once supported by the principles in relation to deeming provisions, to which we and the Commonwealth have made some reference, generally such provisions are not to be construed broadly, and we say this cuts against an interpretation of section 14 which reads, “It is directed to the meaning of ‘parent’ under Commonwealth law.”

That does not alter the point that I have sought to already make that section 14 does, we would say, identify a person’s status for the purposes of the laws of New South Wales.  In submitting otherwise – I turn to the section 17 point – the Commonwealth relies principally upon the fact that that provision in the Act providing for the resolution of conflict between presumptions in two sets of circumstances, and your Honours will find that section in the book at page 298 or section 17 of the State Act.

The circumstances identified in section 17(2), being the conflict between rebuttable and irrebuttable presumptions, serves, we would say, only to emphasise the point that we make insofar as it applies to the presumptions in 14(2).  Section 17(2) makes it clear that the so‑called presumptions are a generally applicable rule that prevail over other potentially applicable rules in those circumstances. 

That is not altered by the fact that section 17(1), of course, envisages that there may also be a need to resolve a conflict between irrebuttable presumptions and that determination will be made by a court. Those irrebuttable presumptions are those contained within section 12(1) in relation to findings and section 14(1) to (3).

The principle and we would say most likely potential for conflict between those presumptions is as between those created by section 12, which, like section 69S of the Family Law Act , reflect the character of a judicial finding as to parenthood and the need for finality and those created by section 14(1), (2) and (3).  It appears there is little possibility of internal conflict in their terms between presumptions in section 14 itself.

We contend that thus section 17(1) creates a narrow possible exception to the conclusive nature of the presumptions erected by sections 12 and 4, confined to those cases of conflict. Insofar as that operates in relation to section 14(2), and as the third respondent has, we would submit, correctly noted in their paragraph 15, that involves no more than a limited qualification of the legal rule that section 14(2) otherwise establishes, but it does not, in our respectful submission, suggest that section 14(2) is to be otherwise limited in its application to a court.

It may be the point that the Commonwealth has in mind in the submissions advanced regarding section 17 that there is some analogy with the so‑called double function laws, where a right is inseparable from the provision conferring jurisdiction or power upon a court.  Whilst I will return to Rizeq, in I hope not too much detail but shortly, the joint judgment in that case at paragraphs 99 and 100, refers to cases like Austral Pacific, where there were examples of that drafting technique raised. 

We would say for the reasons outlined that section 14 is not one of those.  The fact that the legal rule it erects is subject to a limited exception to be determined in a particular specified exercise of judicial power does not mean that it is inseparable in any way.

GAGELER J:   Do you accept that section 17(1) is a double function provision?

MR KEARNEY:   We do not accept that it is a double functioning provision in the sense referred to in Rizeq, in the sense that it has the creation of both the right and then the power in the one provision, your Honour. Can I at this point, your Honours, move to the first reason that we say section 79 of the Judiciary Act has no application, that is that section 14(2) is not within the narrow operation, as we would describe it, of section 79, limited by its function of filling the gap in State legislative power.

Now, the Court, I accept, is well familiar with what was said in Rizeq, but if I could go briefly to some of the passages that appear therein.  The judgment is extracted at book 5 of the joint bundle and it commences, that is the judgment, at 1809.  I would like to commence by taking your Honours to 1834.

KIEFEL CJ:   Paragraph number?

MR KEARNEY:   Paragraph number 61, your Honour, and without, of course, reading those provisions not only do State Parliaments not have the ability to add or detract from federal jurisdiction, a point being made at paragraph 60 preceding it, they do not have the power to command a court as to the manner of exercise of federal jurisdiction conferred or invested.  By Chapter III, of course, that subject matter is exclusively vested in the Commonwealth.

At paragraph 62, that which State Parliaments cannot do is regulate the exercise of federal jurisdiction by a court and at paragraph 63 that incapacity explains the necessity for section 79 and is the key to understanding its operation. It fills the gap there spoken of by picking up the text of a State law governing the exercise of State jurisdiction and applying that text as a Commonwealth law to govern the manner of exercise of that jurisdiction. We seek to emphasise the point in the last sentence of paragraph 63:

The section has no broader operation –

than filling the gap created by the negative importation from Chapter III. How then does one distinguish between laws that do or do not govern or regulate the exercise of jurisdiction? In answering that, could I take your Honours to paragraph 105 of the judgment, appearing in the books at page 1849, where there is a discussion or conclusion of the laws which are within State competence despite Chapter III and by reference there the Misuse of Drugs Act being:

a law having application independently of anything done by a court –

as opposed to the Limitation Act. It is that phrase that we attach some emphasis to, “application independently of anything done by a court”, taking a law of that character outside of the operation of section 79.

On the basis of what I have already submitted to the Court, it is our contention that we say sections 14(2) and (4) are laws of that nature. They are laws that are directed to status in general and not the exercise of power by the Courts and if section 14 applies to a person, the person is or is not a parent for the purposes of New South Wales laws, whether or not there are pending court proceedings involving that person and whether or not there ever will be.

Section 14 is – and we have submitted this in the written material – binding, for example, on administrators applying laws in New South Wales.  We give examples in our submission at paragraph 57 concerning the Education Act, and I apologise the precise provisions were omitted from the joint book, but sections 22, 22(b) and 23 have been handed up in the bundle that met with the Court this morning.

They are examples where the Minister will find themselves in a position of, we would say, accepting - determining to the extent necessary the status of a parent by reference to the provisions of section 14(2) regardless of the involvement otherwise at any time of a court. Some further examples are given by the third respondent in paragraphs 8 and 12 of their written submissions.

We say that the notion that section 14(2) does not apply to those administrators is one that produces difficult results at best, as identified and without taking the Court precisely to them, by the third respondent in paragraph 12, such that the provision should not be so construed.

In our submissions we have also given as a contrast and example the decision in R v Oregan which the Court, of course, referred to in Rizeq at paragraphs 28 and 95. That was or involved the provision directed to the powers of the court and is the kind of provision that would have been picked up by section 79 but, we say, it is quite different to a law which is directed to a person’s substantive status. Whilst it may be unnecessary to go here, can I make the – I withdraw that.

We say section 79 does not apply to pick up sections 14(2) and (4) because it is not one of the laws to which section 79 is directed and, if so, then subject to Victoria’s argument as to the common law, the meaning of “parent” in the Family Law Act is one, we would say, not affected by sections 14(2) and (4). That was, as we understood it, common ground between us and the respondents in the proceedings before the Full Court and I refer to the core appeal book page 119, paragraph 49, although the arguments have probably shifted somewhat since then.

The further arguments advance though do not, for our part, alter the proposition that if section 79 does not operate upon section 14, the meaning of “parent” in the Family Law Act is unaffected by the State provisions and we say this follows for two reasons.  The first is the one that I have sought to give, that the State Act is simply not intended to affect the meaning of “parent” in the Family Law Act. The second reason is section 109 which prevents a State law in and of itself, of course, from affecting the meaning of a federal law and in that contest could I turn to say something about the otherwise provided qualification in section 79?

Your Honours will have seen that there is some difference between at least ourselves and the respondents as to the nature of the test to be applied as to whether the laws of the Commonwealth otherwise provide for the purposes of section 79. It is common ground and we would say ought be accepted that the words “whatever the test” speak to some form of contrariety between the two sets of laws. As we understand it, neither party seeks to disturb the established statements to the effect that the Commonwealth law will otherwise provide if it is complete on its face or leaves no room for the operation of the State law.

KIEFEL CJ: Is there much of a distinction to be drawn in this regard with case law dealing with section 109 inconsistency?

MR KEARNEY:   I hate to say this, again I will come to it, but there is a notion to which we refer that there may not be a great deal of significance with indirect consistency albeit ‑ and I will come to this point ‑ that which flows from the comparison of two laws from the same source, be it Commonwealth or – two from the Commonwealth, whether they are a surrogate law or not, versus Commonwealth and State.

Could I give your Honours a reference to Bui v DPP which appears in volume 3 at tab 24 and paragraphs 25 through 26 of that judgment where both of those phrases are picked up and used in relation to section 79 in common with the other similar provisions not operating:

to insert a provision of State law into a Commonwealth legislative scheme which is ‘complete upon its face’ where, on their proper construction, those federal provisions can ‘be seen to have left no room’ for the picking up of State law” –

And, to come to the answer I sought to give moments ago, we say that the notion of leaving no room has some affinity with the notion of so‑called indirect inconsistency in the context of section 109, for example, as referred to in the Work Health Authority v Outback Ballooning.

As we have observed in our material, on one view, that may suggest a tension between those statements and other statements of the Court, where it has been said that the notion of “otherwise provided” is not to be approached by the application of the metaphor of covering the field, which has also been associated with indirect consistency and we have referred to some observations of Professor Lindell.

In so doing, our point was to suggest that the tension is more apparent than real and we seek to adopt, with respect, the position of President Allsop, as we have referred to in Kelly v Saadat‑Talab, which again is in volume 3 of the joint book at tab 35 this time.  If I can take your Honours to, by paragraph number, a couple of the propositions emerging, and commencing with paragraph 9:

This notion of contrariety encompasses not only the circumstance where “a Commonwealth law expressly or by implication made a contrary provision” –

But also, and citing Putland, where the law:

was ‘complete upon its face’ and can ‘be seen to have left no room’ –

In paragraph 11, talking to how those notions are intimately related, the idea of “leaving no room” lying in the notion that:

the content of the existing Commonwealth law is a negation of additional statutory content on the [same] subject.

Or to put it in the way, as I understand it, it was put in Outback Ballooning at paragraph 35 of that judgment:

an implicit negative proposition that nothing other than what –

the federal law provides is to be added to it.  That, of course, in our submission, requires attention as a first step to the proper construction of the Commonwealth law, which is where I sought to start these submissions, and to which I will come back to momentarily.

Before I do so, can I say that it is our submission that that task of construction does not involve the application of a presumption from Butler upon which, as we understand it, the first and second respondents seek to rely.  That is, as we understand the submission, it requires that every effort be made to reconcile the two provisions so that they are capable of working together.

In our respectful submission, there are a series of difficulties with the application of that proposition in the present circumstances.  The first is that the principle applicable to the construction of enactments of the same legislature is based upon the notion that the legislature does not intend to contradict itself.

Now, it is true that a State law picked up by section 79 operates as a surrogate Commonwealth law. In that sense, it can be accepted that the issue is the interaction of two laws of the same legislature. However, it is not an interaction between two laws of the same legislature, neither of which in terms contemplates the potential for conflict.

The rule is that section 79 applies unless another law of the Commonwealth otherwise provides. And the effect of that rule, we would say, is that one first construes the other law of the Commonwealth, here the Family Law Act, in accordance with its terms, and then one construes the State law which it is said is to be picked up by section 79 and one then compares the two laws. If the first law of the Commonwealth is inconsistent with the State law, then the first law of the Commonwealth, we would submit, otherwise provides.

The situation, we would say, is no different than if one had two ordinary laws of the Commonwealth Parliament, one of which on its face was applicable for all purposes and the other which, on its face, was congenitally liable to affection by laws of the Commonwealth Parliament.  In that case one would not say that the first law was to be read down by reference to the second. 

The response we make to the respondents’ contrary contention in paragraph 39 of their written outline is, we would say, similar to that made by this Court in Commonwealth v Australian Capital Territory in 2013 about section 28 of the Self‑Government Act, that is, that section 79 is directed to the effect to be given to State law that could otherwise have no operation in the exercise of federal jurisdiction. It makes those laws binding on courts exercising federal jurisdiction when they otherwise could not be.

Section 79 is not directed, we would say, to the effect to be given to Commonwealth law and says nothing of the proper construction or effect of the Commonwealth law. We say that if those propositions be correct, then the FLA otherwise provides within the meaning of section 79. Firstly, for the reasons I have given, the term “parent” ought be considered to bear its ordinary meaning and in accordance with that ordinary meaning a person may be a parent in various ways. Normally, that is always, according to ordinary conception, a male, who is both biological parent and psychological parent will be considered to be the parent of a child and of those, biology will often be the most important, particularly in the context of the Act for the reasons that I have sought to give.

Critically, however, in its ordinary conception, one has to have regard to all of the circumstances but one of which is biology.  The inconsistency, we would say, or irreconcilability between the State Act and the Family Law Act arises because the State Act, as I have sought to submit, seeks to prescribe a rigid rule which would deny the relevance of all circumstances and, in particular, deny the relevance of biological and/or psychological parenting.

Secondly, we say that the Commonwealth has provided for the manner in which State laws are to be integrated into the scheme under the Act including, and as I have taken you to, sections 4(1) and section 60H. The specific and detailed identification of those State laws as laws which do affect the meaning of the word “parent” we would say gives rise to the implicit negative – that is, that other State and Territory laws do not do so.

Take, for example, if I might, the case of section 60H and the application of that provision of course turning on whether certain State laws have been prescribed. The respondents’ submission, as we understand it, would produce the result that the State and Territory laws are to give content to the word “parent” whether or not those laws are so subscribed. A similar issue emerges from the section 60HB provision in relation to surrogacy.

Thirdly, the Family Law Act , as I have identified, contains its own presumptions of parentage in Division 12 and, as mentioned before, with the exception of section 69S(1), those presumptions are rebuttable by evidence.  But if the respondents are correct some difficulties will emerge where there will often – and I will come back to it – be a clash between the Division 4 presumptions in section 14 of the Act.

The Family Law Act makes no provision for resolution of that clash, we would say suggesting that it was not Parliament’s intention that the presumptions found in the State law were to apply.  The occasion for seeking to reconcile those presumptions with those in Division 12 were simply not envisaged.

Secondly, if section 69S(1) and sections 14(2) and (4) of the State Act, in the latter sense, were purportedly to apply in one case, there would be a logical inconsistency between the two, the former creating an irrebuttable presumption of parentage and the latter creating an irrebuttable presumption of non‑parentage, and again the Family Law Act contains no means of resolving those.

Thirdly, and at a greater level of generality, it is our submission that Division 12 is an aspect of the statutory design which indicates that the Parliament had turned its mind to the kinds of presumptions which ought operate as regards parentage and, having done so, did not choose to adopt the style of irrebuttable presumptions as appear in section 14(2).

I mentioned before these difficulties arise but can I try to illustrate how in a concrete way. The appellant was identified as father here and it can be inferred was entered as the child’s parent on the New South Wales register of births, a birth certificate having issued. If so, that engages the presumption in section 69R of parentage which is directly contrary to that in section 14(2).

As we understand the position, the respondents’ answer to that is to suggest that the irrebuttable presumption in 14(2) prevails but we would say that involves the notion that one must adjust the meaning of federal law such that it is reconciled with State law, that reconciliation seemingly having to be achieved by reading into the federal law some conflict resolution rule for determining how the clash between the competing presumptions is to be resolved, and for the reasons we have sought to outline, we say that is not what section 79 does.

It does not speak to the construction of the federal law and, for those reasons, we say section 14 is not picked up by the Act because the Family Law Act otherwise provides. That analysis is also the basis for the point that I sought to make before by reference to section 109. If it is in fact the case that the State Act purportedly extends to affecting the meaning of “parent” in the Family Law Act by its designation of status, which we say is not the case as a matter of proper construction, then we would say section 109 renders the State Act inoperative in that regard.

EDELMAN J:   That is your primary submission, is it not?

MR KEARNEY:   Yes, because it would, in that operation, of course, we say, alter, impair or detract from the Family Law Act in the ways that I have just explained and engage in, for example, the propositions or the test in relation to section 109 in Outback Ballooning.

NETTLE J:   When you say it is your primary submission, primary only if contrary to your principal submission section 14 of the State Act purportedly extends to the Commonwealth.

MR KEARNEY:   Thank you, your Honour, yes.  Unless I can assist the Court further, they are the submissions for the appellant.

KIEFEL CJ:   Thank you, Mr Kearney.  The Court will now take a short break.

AT 11.16 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.31 AM:

KIEFEL CJ:   Solicitor‑General for the Commonwealth.

MR DONAGHUE:   Your Honours, I am standing here because there have been some discussions between the parties as to the proposed order of address.  Subject to the Court’s views, of course, the parties propose that the Commonwealth speak now and that the third respondent follow me.  The suggestion is then that Victoria should follow that and the respondent follow Victoria so as to have an opportunity to respond to anything Victoria might say and then have the appellant in reply.

KIEFEL CJ:   That seems perfectly sensible, thank you.

MR DONAGHUE: Your Honours, my oral submissions will follow the structure of our oral outline which, as your Honours will see, focuses very heavily on the questions concerning section 79 of the Judiciary Act.  The starting point, in our submission, is that in determining an application for a parenting order under Part VII of the Family Law Act there is no dispute that it was relevant for the Family Court to know whether or not the appellant is or is not a parent within the meaning of the Act, notwithstanding that it is possible to make a parenting order with respect to someone who is not the parent.

In our submission, in deciding whether the appellant was a parent there were two sub‑questions involved for the Family Court.  The first was:  what is the meaning of the word “parent” in the Act?  The second is:  did the appellant fall within that meaning?  Dividing those questions up in that way, our primary submission is that, as to the first of those questions, the meaning of the word “parent” in the Family Law Act, section 79 has nothing to say.

The reason for that, at a fundamental level, is that the words of the Commonwealth Act are the medium by which the Commonwealth Parliament exercises the legislative power of the Commonwealth conferred under Chapter I of the Constitution and that the task of statutory construction as to the meaning is to ascertain and give effect to the collective choice of the democratically elected legislators by giving close attention to the meaning of the text, read in context and in light of its purpose.

In putting it that way, I have borrowed somewhat from the formulation your Honour Justice Gageler used recently in Work Health Authority v Outback Ballooning.  I do not need to take your Honours to the case but at paragraph [77] your Honour said that the:

legislated text is the product of deliberative choice on the part of democratically elected representatives to pursue collectively chosen ends by collectively chosen means.

Your Honour went on, at the end of that paragraph, to note that to seek to ascertain the collective intentions of those elected representatives is to give effect to:

“the constitutional relationship between courts and the legislature”.

Your Honour quoted Singh in support of that, but the same idea is expressed in cases such as Zheng v Cai and Lacey v Attorney‑General. 

Our submission is that it would not be consistent with the task of the Court so understood for a law of a State or a Territory to alter the meaning of a word that is used by the Commonwealth Parliament and to take quite an obvious example, if a State purported to pass a law that said “In the Family Law Act, as it applies to any person in this State, the word ‘parent’ means” – such a law would be invalid under section 109 of the Constitution because it would be an obvious case of a State law that purported to alter the meaning of the Commonwealth law on conventional 109 principles.

That would be so, we submit, obviously if the purported State definition was different to a Commonwealth definition of the same word but it would equally be true if the Commonwealth Act uses the word in its ordinary and natural meaning and the State seeks to give the word a meaning that is not its ordinary or natural meaning. 

I start there because if section 14(2) of the State Act is a norm, applying of its own force for all purposes, obviously contrary to the way that we put it but as a number of parties in this appeal do put it, then in substance section 14(2) would be a law of that very kind. It would be a law where a State Parliament was purporting to say in New South Wales “parent” means “X” in a way that would then govern the meaning of the words “selected by the Commonwealth legislature” and that, at a very simplistic level, is why we say if understood in that way section 14(2) is invalid by reason of 109.

In our submission, the position is no different from that general position I have just outlined if a State law is a law that is attempting to alter the meaning of a word in an area where the law regulates the exercise of federal jurisdiction such that a State law is invalid for an anterior reason than section 109, because it is purporting to enter into the area of exclusive power that your Honours identified in Rizeq. 

As the Court made clear in Rizeq, the role of section 79 is to fill the gaps in the law regulating the exercise of federal jurisdiction that otherwise would arise from that area of Commonwealth exclusive power. In our submission, it is not really meaningful to speak of a gap in the meaning of a word. In Commonwealth legislation, the word means what it means and that is to be understood in applying the ordinary techniques of legislative construction.

But even if it were somehow meaningful to speak of a gap – contrary to what I have just said, self‑evidently there cannot be a gap in the meaning of a Commonwealth law that arises as a consequence of a limit on State legislative power and section 79 is only concerned with gaps that arise as a consequence of limits on State legislative power. So, section 79 can say nothing about the meaning of the Commonwealth law because the operation of section 79 is in a whole different area of discourse to the task of the construction of a Commonwealth Act. That, in our submission, is enough to show that the Full Court below erred in using section 79 to pick up section 14 to control, in effect, the meaning of the word “parent” in the Family Law Act.

The result of those submissions I have just made is that, by reason of the combined operation of section 109 and section 79, a State law or a Territory law will only be relevant to the interpretation of the Commonwealth Act if the Commonwealth Act makes it relevant to the interpretation of that Act which is, of course, something the Commonwealth Parliament can do, and you see that having been done in the Family Law Act itself.

EDELMAN J:   Do you submit that words in Commonwealth or State legislation can only ever have one meaning for all time?

MR DONAGHUE:   Your Honour, I need to be careful with meaning.  I accept that a word in a Commonwealth law can have an ambulatory meaning.

EDELMAN J:   Do you accept that State laws, or the common law, might affect that ambulatory meaning?

MR DONAGHUE:   I accept that the common law might, if the Commonwealth Act uses a word in a technical sense, bringing in the common law meaning, “charitable purposes” or something of that kind, then that would evolve as the common law or equity evolve in giving content to that.  I do not accept that State law could change the meaning.

EDELMAN J:   Even uniform State laws?

MR DONAGHUE:   Even uniform State laws, that is right - unless they did it through the medium of affecting the evolution of the common law.

EDELMAN J:   Yes.

MR DONAGHUE:   But I think I would have to accept that if, to the extent that a uniform set of State statute laws might cause an evolution of the common law, if the Commonwealth Act used the term in a way that brought in the common law meaning then that might be a way that there could be an effect.  But short of that and, in my submission, we are nowhere near that scenario here, unless the Commonwealth Act is using terms in a way that brings in the State law, the State law cannot affect its meaning.

GORDON J:   So like 60H?

MR DONAGHUE: Yes. Section 60H is one way, but one requires there the law to be prescribed, and to be in a particular area. An easier example is perhaps the definition of “adoption” in section 4 of the Family Law Act, which says:

adopted, in relation to a child, means adopted under the law of any place (whether in or out of Australia) –

So in that way, one can see the Commonwealth Act giving effect to steps that are taken pursuant to Commonwealth law.  But short of that, in our submission, State law is just not relevant to what I have identified as the first question, the meaning of “parent”.

We agree with the submissions that the appellant has made this morning that the word “parent” in the Family Law Act uses that word, using its ordinary and natural meaning.  The definition in section 4 is obviously inclusive.  It is possibly comprehensive in relation to a person who has been adopted; your Honour Justice Gageler asked a question about that.

It may well be that an adopted person has only their adoptive parents, although again that question does not arise here.  But in a context removed from adoption, there is no definition of the word “parent”.  Parliament therefore has used that word, in our submission, on the assumption that it is a word that has an ordinary and natural meaning.

Your Honours have said many times, and I will not take your Honours to it, but a recent example is Esso Australia v The Australian Workers' Union (2017) 92 ALJR 106 at paragraph [52] where your Honour the Chief Justice and Justices Keane, Nettle and Edelman said that the Court would not construe a provision in a way that departs from its natural and ordinary meaning, unless it is plain that Parliament intended it to have some different meaning.

In our submission, when one looks at the Family Law Act, it is far from plain that Parliament intended the word “parent” to have anything other than its ordinary and natural meaning.  Indeed, there are a number of indicators that suggest that Parliament did intend that meaning and we have addressed them in writing, particularly at 37 to 38 of our submissions, and I will not go back to it, but to note one example.

The parentage presumptions can be displaced by proof on the balance of probabilities.  That rather assumes that evidence is relevant to the status of parentage, and I think my friend gave another example, section 69V, that makes the same assumption.  That assumption that evidence is relevant is important because, of course, the ordinary and natural meaning of a word is a question of fact.

The meaning of the word “parent” as a question of fact was comprehensively examined by the Full Federal Court in the case of H v Minister for Immigration and Citizenship. Could I ask your Honours to go to that; it is in volume 3 at tab 32 – it is (2010) 188 FCR 393. If your Honours start at paragraph 1, which is on page 395, you will see the question at the end of paragraph 1:

“Does ‘a parent of a person’ in s 16(2) of the Citizenship Act mean only a natural or biological parent of the person?”

On two appeals on a question of law, that was the issue that the Full Federal Court was grappling with.  The facts ‑ as I say, there were two appeals.  You get the facts of one of them at paragraphs 8 and 9 in particular but if your Honours focus on the facts of the second one, the second appeal at paragraph 15, it is more analogous to the facts now before this Court.

The situation was, as you will see in 15(2), that a woman who was the mother of the child had been residing in Fiji, informed an Australian resident that she was pregnant with his child.  The couple selected the name, birth certificate names the Australian resident as the father.  The father had some doubts about parentage which were resolved to his satisfaction by a blood test; that is the end of paragraph 2.

In the years that followed, he had a relationship with the daughter, provided material and emotional support to her, albeit from a different country, for a long period of time. Then in paragraph (4) there were some DNA tests that established that he was not, in fact, the biological father so the question that the court was then grappling with was how that man’s status fitted with the Citizenship Act and, in particular, whether the child had an Australian parent.

The arguments that were put were extensive.  You will note at paragraph 24 that the Commonwealth Minister made a submission, and here obviously we are not in the context of artificial conception, but made a submission that biological parent meant biological parent, although the Minister acknowledged that the special case of artificial conception might involve a different analysis and we respectfully submit that that is correct.  The ordinary meaning of the word, in our submission, accommodates differences between artificial conception on the one hand and other forms of conception.

The Full Court dealt with the meaning of the word starting from about paragraph 45, identifying on page 405 ‑ identifying the question as a question – the ordinary meaning of the word as a question of fact.  At 46:

Here all the parties focused a primary part of their argument on the ordinary meaning of the word “parent”.

Which, in paragraph 47 is said to be:

not at all straightforward.

At 48 about five or six lines down, the Full Court said:

Thus, in ordinary usage, the word “parent” may be used without modifier to signify a genetic or non‑genetic connection with another . . . Whilst often a person’s parents will in fact be biological parents, ordinary usage does not limit the meaning of parent in this way.  Rather, the word “parent’ is used today to signify a social relationship to another person.  Whether or not this has always been the case, this usage reflects a widespread contemporary awareness of families that include non‑biological parent‑child relationships.

Then, again, returning at 49 to the fact it is a “question of fact”.  At the end of a detailed examination of these issues, if your Honours turn to the end of the report at paragraph 128 on page 427, the Court’s conclusions under a heading:

Bringing the threads together ‑

at the bottom of the previous page, is that:

The word “parent” is an everyday word in the English language, expressive both of status and relationship to another. 

The next paragraph:

Being a parent within the ordinary meaning of the word may depend on various factors, including social, legal and biological.

Then about five or six lines down:

Perhaps in the typical case, almost all the relevant considerations, whether biological, legal, or social, will point to the same persons . . . Typically, parentage is not just a matter of biology but of intense commitment to another, expressed by acknowledging that other person as one’s own and treating him or her as one’s own.

The ordinary meaning of the word “parent” is, however, clearly a question of fact, as is the question whether a particular person qualifies as a parent within that ordinary meaning.

GAGELER J:   Is it critical to your argument that the ordinary meaning of the word “parent” is a question of fact as distinct from a question of law?  I mean, this is getting into Pozzolanic territory which is an entirely new area – different area of discourse from what we have heard from the appellant.

MR DONAGHUE: It is only important for one reason, that we accept that in – we accept that if the word is used with its ordinary, natural meaning, forgetting about whether that is a question of fact or not for now, there is then at the second stage question of application, a question that also involves a question of fact and at that point we accept section 79 potentially has a role to play. So, it is only at that stage in the analysis that it matters, so I think the answer to your Honour’s question is “no”; for my first question it is not critical.

NETTLE J:   Whether or not it is used in its ordinary sense or a different sense is a question of law, plainly.

MR DONAGHUE:   That is clearly a question of law, indeed.

NETTLE J:   If it is used in its ordinary, English sense, then that is a question of fact.

MR DONAGHUE:   That is all I was endeavouring to suggest.

NETTLE J:   Which is basic.

MR DONAGHUE: Absolutely, your Honour, and that is how the Full Court there understood it and that is how the primary judge in this case understood it and the primary judge was overturned not because of error, in that respect, but because the Full Court thought that section 79, picking up 14(2) mandated a different answer. So, if the Full Court was wrong about that we submit that no error has been shown in the approach that the primary judge took to the meaning of the word.

As to what I have identified then as the second question, both in opening and just then in answer to a question of Justice Gageler, we do accept that in working out whether a particular set of facts falls within the ordinary meaning of the word there is a factual question that would potentially be influenced by State procedural or evidentiary laws, if those laws are picked up by section 79, and part of the debate in this case is whether section 14(2) is a law of that kind or not.

We submit that, in order to be picked up, there are three requirements under section 79. First, that the law has the character identified in Rizeq as a law that confers or governs the powers State courts have when exercising State jurisdiction.  The second is that the State law is applicable in the case and the third is the Commonwealth law does not otherwise provide.  Here the focus is on the first and third of those requirements.

In relation to the first, that is, is this law a kind of law to which section 79 might be relevant, the Commonwealth’s submissions differ from those of the other parties and, obviously, the Commonwealth’s submissions have attracted some opposition. The starting point in the Commonwealth’s submission is that section 14 is, in form, a presumption and presumptions will often have the character of laws that are directed to regulating the exercise of jurisdiction in a way – indeed, they are often laws of evidence – so they are laws of a kind expressly referred to in section 79 as laws that can be picked up.

EDELMAN J:   Not irrebuttable presumptions though.

MR DONAGHUE:   Yes.  And, having said that, I of course acknowledge that here we are talking about an irrebuttable presumption and a law might inform a presumption but, in substance, a norm‑creating provision and that is what our friends say against us.

Our answer to that is the answer that the Chief Justice foreshadowed involving section 17 of the State Act which, as your Honours have seen, envisages the possibility of a conflict between two irrebuttable presumptions, the relevant conflict being, we think, the conflict between section 12(1) where a prescribed court has expressly found that a child is a person’s – that a particular person is the parent of a child and the irrebuttable presumption under 14(2) that a sperm donor is not the parent of a child.

Section 17(1), in our submission, is premised on the notion that a question as to status might arise in a court where those two presumptions conflict and if that happens then the presumption that is to prevail is the one that appears to the court to be more or most likely to be correct and we take two things from that.  First, that the legislative premise is that there is an underlying correct position that might need to be determined, and the second is that the forum in which that is to be determined at least includes a court.

A lot of the debate about this topic appears, as we understand it, to arise from the uncertainty that the Commonwealth expressed in paragraph 9 of our written submissions, about whether or not 14(2) would apply outside of the curial setting, that is, does it apply to administrators other than just courts?  We said that question did not need to be determined.  Most of the other parties have said that it does need to be determined and that the provision does apply and I should, for clarity, emphasise that our submission in no way depends on the notion that 14(2) cannot apply to administrators.

Our submission is that for a State law to engage section 79, it does not need to be limited only to courts. Our submission is that to the extent that the State law purports to regulate courts in the exercise of federal jurisdiction, in that operation the law cannot operate of its own force as a State law, because it would enter the field of exclusive power identified in Rizeq.  So in that operation, if the State provision is to apply at all it can apply only via 79.

The submissions of the third respondent, for example, in addressing the Commonwealth’s position on this, accept that the presumption will, using their words, often come to be applied in court proceedings. Once you accept that, in our submission, it is difficult to see how section 14 could have any operation other than through the medium of section 79 because when a State court is there exercising federal jurisdiction, and it has a State law that purports to be governing the way that it has to exercise that jurisdiction by saying this particular person is not to be treated as a parent, where that is a relevant factor in the decision whether to make a parenting order or not, that, in our submission, squarely falls within the area that the Court in Rizeq accepted was beyond State legislative power.

KIEFEL CJ: What do you say to the appellant’s argument that section 17 ought really to be seen as an exception to section 14(2) as a rule of law or a declaration of status?

MR DONAGHUE:   Even if it is to be viewed in that way, your Honour, it is an exception – that does not change the more fundamental proposition that where the presumption in 14 is said to be relevant to the determination of an exercise of federal jurisdiction, section 14 in that operation, even leaving section 17 out of the mix, section 14 in that operation would be governing or regulating the exercise of federal jurisdiction.

So we use 17 because it acknowledges both that this issue will arise in a court, but also that it might arise in a court in a way that requires a judicial choice between two apparently conflicting irrebuttable presumptions.  But the more general point is that for the law to operate in a way that influences the parenting order that is made, is for the State law to have an effect within federal jurisdiction that goes beyond State legislative competence.

EDELMAN J:   But how is that any different from any other rule which purports to reconcile other competing rules?  It is no more directed to a court in this context than a criminal law which purports to reconcile two other criminal laws that might be inconsistent.  It is not directing a court to do anything, other than to resolve what the norm is for the court to apply.

MR DONAGHUE: Section 14(2), in my submission, is in substance directing a court not to treat a person as a parent under the Commonwealth Act.

NETTLE J:   But why is that not a substantive rule or a normative rule, as you put it?

MR DONAGHUE:   Because it does not direct the court to do that.  If, for example, a court has – a prescribed court has reached the opposite conclusion, it then says to the court you should choose between these two otherwise irrebuttable presumptions.  So, it is there acknowledging a potential need for an exercise of jurisdiction to resolve the question of stats.

NETTLE J:   But 14(2) has no application in a determination under the Family Law Act unless it is made applicable by section 79 and section 79 will not apply it unless it is other than a substantive or normative rule.

MR DONAGHUE:   That is all true, your Honour, and I was about to say that in the end it may be that nothing much turns on the point because if we are wrong in the submission that I have just been putting and 14(2) is properly viewed as a norm then the analysis is one of 109 inconsistency.  Is the norm created by 14(2) inconsistent with the FamilyLaw Act under ordinary principles?  If we are right, then 109 will not have anything to say, for the reason identified in Rizeq that I will come to shortly, but the question would be an “otherwise provides” question and for ‑ ‑ ‑

GORDON J:   Is that not where your argument is?  Is that not where you should be? 

MR DONAGHUE:   At 109?

GORDON J:   No, otherwise provides.

MR DONAGHUE: Your Honour, only if I am right. In the submissions I have just been putting that this is a law to which section 79 is potentially relevant because for the reason Justice Nettle just put to me if it is not a law of a kind that regulates the exercise of federal jurisdiction then section 79 does not speak to it. So I do not get to “otherwise provides”.

GORDON J:   While they are having this debate, even if that is right it falls on the third limb anyway.

MR DONAGHUE: Yes. The submissions I am about to develop are to the effect that your Honours should recognise – if it has not already been recognised – that the questions are the same – that the “otherwise provides” question and the 109 question are the same and then the debate really becomes arid because you would get the same answer on “otherwise provides” or section 109.

KIEFEL CJ:   That is the outcome which might occur in this case, on your argument.

MR DONAGHUE:   Yes.

KIEFEL CJ: But the first question to which you direct – which is whether section 14(2) is a law of the kind picked up may have wider implications and, therefore, it is a matter which, I think, should be properly addressed.

MR DONAGHUE:   I accept that, your Honour.  That is why we put the submission that we put because analytically, in our submission ‑ ‑ ‑

KIEFEL CJ:   It has to be addressed before you go any further.

MR DONAGHUE:   It has to be addressed and analytically, in our submission, the fact that a law is not just directed to a court exercising federal jurisdiction is not the right question because 79 is filling a gap where there is an absence of State power and a State could enter that area where there is no State power by a law that is just about things within the area of absent power.  But it could also enter that area by enacting a more general law which is valid in some operations but invalid to the extent that it purports to regulate federal jurisdiction.  It is that kind of law that, in our submission, your Honours are dealing with here but, as I say - so I do not withdraw the submissions that we make but if I am wrong about that then we are in 109.

NETTLE J:   Are you going to come back to Justice Edelman’s question of why 17(2) is any different to any other “choice of law” rule as between two normative propositions?

MR DONAGHUE:   I had not been proposing to.  We rely upon 17(2) –in my submission, the principal debate is about section 14.  The principal question is about the character of the 14(2) norm.  Section 17(2) we refer to, only because – sorry, 17(1) ‑ ‑ ‑

NETTLE J:   Section 17(1) – yes, I am sorry. 

MR DONAGHUE:   Yes, 17(1) ‑ my error, your Honour.  Section 17(1) is relevant because of its acceptance and one might, to some extent, derive a similar point out of section 18, that the so‑called norm is not a norm for all purposes, it will only operate in particular contexts and it might require a decision of court as to whether or not it does apply.  It may be that notwithstanding 14(2) says a sperm donor is not a parent, a court might decide, asking the 17(1) question, that it is more likely to be correct that the sperm donor is the parent. 

EDELMAN J:   To put it even more simply.  If one just replaced all the words “irrebuttable presumptions” with the word “rule”, would the submissions – would you still say that it is directed to what a court can do in federal jurisdiction? 

MR DONAGHUE:   Well, if the rule is a man is not the father, is that the premise - for any purpose the man is not the father, then I would not make that submission. 

EDELMAN J:   Then has it not been the case, at least for the last 100 years since Wigmore said that an irrebuttable presumption is nothing more than a rule, that one should read the irrebuttable presumption - the reference to it is simply being a reference to a rule. 

MR DONAGHUE:   Except it is not irrebuttable in all circumstances, which is why we went to 17(1). 

EDELMAN J:   I suppose it then depends on whether you are talking about whether the rule can be displaced or whether the rule is really a presumption that is being rebutted. 

NETTLE J:   To come back to Justice Edelman’s earlier example, killing of someone with murderous intent is murder but it is not if it is self‑defence - two rules. 

MR DONAGHUE:   Yes. 

NETTLE J:   Both of them normative. 

MR DONAGHUE:   Yes, and as I think I accepted in answering Justice Edelman, I would not suggest that those laws are directed to governing the exercise of federal jurisdiction. 

NETTLE J:   No. 

MR DONAGHUE:   But much may depend, as is ever the case, on the precise form of the rule that one is looking at.  So a rule that says that a person is to be treated as a parent or is not to be treated as a parent, might be a rule that looks more like when the issue arises in a court as a law that is directing a court not to treat or to treat a person in a particular way, and is a law that is then entering into this area of exclusive power. 

GAGELER J:   Do you get some assistance – a little bit more assistance from section 18.  If you look at the position in criminal proceedings it seems that this irrebuttable presumption is one that cannot be relied upon by the prosecution, but at least by implication can be relied upon by the defence.  So if it is a status or a rule of law it is a very strange one.

MR DONAGHUE:   It is a very odd one, indeed.  Your Honours were given, I think, some extracts from the Education Act provisions this morning.  They contain some offences for parents failing to enrol their children in school, so that provision would be engaged in that very kind of context and that is – and I passed over it, but when I mention 17(1) and 18 in the same breath.  Your Honours, in light of the time, I am not sure I can take that any further.

In relation to the “otherwise provides” question, I have foreshadowed that we will submit that the test should be treated as the same.  We, in writing, said your Honours did not need to get into this territory but since we wrote that the parties have addressed it in quite some length, in particular, the respondent, and as against the possibility that your Honours might go there we do seek to say something about it.

Can I ask your Honours to start with Rizeq which is volume 5, tab 48 (2017) 262 CLR 1. Their Honours in Rizeq in the plurality judgment at paragraph 39 at the bottom of page 19 noted that the argument in that case had provided:

an opportunity for this Court now to resolve some doubts, which must be acknowledged regrettably to have arisen, about the sources of law in federal jurisdiction and about the operation of s 79 –

One of those doubts was resolved at paragraph 92 of the judgment where the plurality said:

The resulting confinement of the operation of s 79 to an area in which there is an absence of State legislative power also provides a straightforward answer to the vexed question of the relationship between s 79 of the Judiciary Act and s 109 of the Constitution. Within the field in which s 79 of the Judiciary Act operates, State laws have no valid application and s 109 of the Constitution for that reason simply has no operation.

That is, we are in different areas of operation, 79 and 109.  Your Honours will see in footnotes (143) and (144) references to GPAO at paragraph 80 and 38 to 76.  GPAO might be thought to suggest – was decided at a time where it was not yet recognised, as is recognised in that paragraph, that 109 has no operation in the area where section 79 operates.

If your Honours could turn to GPAO which is in volume 4 at tab 37, your Honours might recall this was a case which involved a relationship between a subpoena that had been issued under the Commonwealth family law rules to a Northern Territory Government department and the relationship between that subpoena and a provision in Northern Territory law 97(3) of the Community Welfare Act which provided that a person shall not be required to produce documents of particular kinds.  So, it was a conflict between the subpoena rule and the immunity‑type rule. 

Between paragraphs 38 and 76 which were the paragraphs mentioned in that footnote in Rizeq, the Court engages in a – and your Honours see this starting at 38 on page 576 ‑ what was identified as a threshold issue which was the question of whether or not there was inconsistency in a 109 sense between the relevant laws.  That discussion continues from 38 through to 76 where the conclusion is reached that the laws were not inconsistent so that there was then potentially a valid State law that could be picked up.

In a sense, Rizeq has turned the analysis on its head in that following Rizeq the only law that can be picked up is an invalid law – a State law that could not validly have operated because it entered into the area of exclusive power which where prior to that time it was thought necessary to find a valid law before 79 could potentially operate to pick it up.

So, having finished the 109 analysis at 77, Chief Justice Gleeson and Justice Gummow, with whom Justices Gaudron and Hayne relevantly agreed, said this brings us to the third issue, which is the “otherwise provides” issue.  Their Honours then at 79 refer to a number of older authorities which express the question in terms of inconsistency or whether a law is displaced, but then at paragraph 80, having identified in a way that is consistent with Rizeq, the object of section 79 as being:

the application of a coherent body of law –

to laws governing State and Territory jurisdiction then say:

Seen in that light, the notion of “inconsistency” involved in the phrase “otherwise provided” in s 79 is akin to that first identified by Mason J in the passage from the judgment in University of Wollongong v Metwally set out earlier in these reasons.  This is the need to resolve the problem that arises by conflict between conflicting statutes having the same source.

The reference to Metwally is to a passage quoted back in paragraph 51 of the judgment, the bottom of page 579, where his Honour is referring to a notion of irreconcilability between two statutes in the context of conflicting statutes enacted by the one legislature and Justice Mason says at the very last two lines on the page:

In the case of conflicting statutes enacted by one legislature the problem is resolved by regarding the later statute as impliedly repealing the earlier statute to the extent of the inconsistency.

In my submission, when their Honours referred back to that passage at paragraph 80, they were not suggesting a strict implied repeal analysis in that it was not put that one just looks for the latter law in point of time.  They were rather to be understood as suggesting that the notion of inconsistency was the kind of inconsistency that must exist before you get to an implied repeal, being repugnancy – a stricter notion of repugnancy or irreconcilability and you see that in particular from paragraph 81 where the test is applied and it is put that the question is:

whether the operation of the former –

that is the Commonwealth law:

so reduces the ambit of the latter –

the Territory law:

that the provisions of the Family Law Act are irreconcilable with those of the Territory law –

That was later relied upon by Chief Justice Gleeson and Justices Gummow and Hayne in Austral Pacific as suggesting that one should not apply a notion of “covering the field” inconsistency in that area.  It is that understanding that I am suggesting should be revisited in light of the new light thrown on this problem, and the relationship between 79 and 109 by Rizeq.

Can I start that, and I do not think I will take your Honours back to it, by reference to Butler, about which your Honours heard a little this morning.  Butler is a case where the Court was – I will give your Honours the reference if you need it; it is volume 3, tab 25, Butler v Attorney-General (1961)106 CLR 268 – was a case about both 109 inconsistency and inconsistency between two State laws. The relevant passage in Butler is in the judgment of Justice Fullagar, and only part of it is quoted by our friends for the respondent in the passage they rely on in paragraph 39 of their reasons.  Just before the part that is quoted, Justice Fullagar says in the middle of that page that:

The Commonwealth Parliament is, within its sphere of power, a paramount legislature, and there can be no presumption either that it did, or that it did not, intend by its own Act to supersede or preclude from operation a State Act.  But, where the comparison to be made is between two State Acts, there is a very strong presumption that the State legislature did not intend to contradict itself –

So there is no question that in the context of two laws of the same Parliament the position is that there is a strong presumption against inconsistency. But, in our submission, while it is true that a State law picked up by section 79 operates as a Commonwealth law, that fact provides but a slim foundation for the operation of the presumption of the kind referred to there because we are still talking about two laws, the text of which was identified by different legislatures, and that rather removes the footing for the assumption that the Parliaments were not contradicting themselves because it was still two different Parliaments.

That point becomes even stronger when it is recognised that section 79 has an ambulatory operation, so it might pick up State laws passed after the relevant Commonwealth law and it is very difficult to see in that context how it could sensibly be presumed that the Commonwealth Parliament did not intend to contradict the State law.

But perhaps the more important reason not to adopt that Butler‑type analysis in the context of section 79 is that this Court – one of the things that has been most clearly established about the operation of section 79 is that where it picks up a State law subject to a presently irrelevant qualification, it does so with the meaning of the State law unchanged.

That, we submit, points against applying a Butler‑type analysis for this reason, that the effect of applying that presumption and the way that the court interprets a provision in order to prevent the legislature contradicting itself is by taking the two laws and endeavouring to reach a harmonious construction of those two provisions. 

We have handed up, I think, one case to your Honours, in addition to the cases in the bundle, which is Commissioner of Police v Eaton.  If your Honours could turn to that.  I am just going to this for the principles, so I will not spend any time on the facts.  But in the joint judgment of Justices Crennan, Kiefel and Bell, at paragraph 48 on page 19, your Honours refer to the judgment of Justices Gummow and Hayne in Ferdinands pointing out that:

inconsistency was at the root of the principle of implied repeal.  This is true also where the question is one of possible amendment where a later statute is said to operate upon an earlier statute.  However, as their Honours observed, the law presumes that statues do not contradict one another –

that is the Butler presumption:

The question is not whether one law prevails, but whether that presumption is displaced.  Their Honours considered that the two statues in question in that case could be accommodated by reading into the Industrial and Employee Relations Act 1994 the matters that the Police Commissioner of the South Australian Police would take into account in exercising the power –

So there is a process of reading the two statues together to try to achieve a harmonious construction by reading something into one of them.

Your Honour Justice Gageler also addressed this topic.  Your Honour was dissenting in the case but, in my submission, not on the discussion of principle.  At paragraph 98, your Honour expressly drew on the Project Blue Sky approach that is adopted when attempting to reconcile apparently irreconcilable provisions within the one statute.  So your Honour said, in the second sentence:

Stated at its highest level of generality, it –

the common law principle of construction:

is that statutory texts enacted by the same legislature are to be construed so far as possible to operate in harmony and not in conflict.

It is a very strong presumption, consistently with Butler, and your Honour in fact cites Butler.  It:

applies also to the construction of multiple provisions within a single statute –

and your Honour quotes Project Blue Sky:

the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language –

So if the Butler approach is adopted, what that involves, the way that differs from section 109, is instead of just construing the two laws and then comparing their legal operation to see whether one is inconsistent with the other, one tries as a matter of construction to read them harmoniously by adjusting the meaning to best achieve what is understood to be the purpose of the relevant provisions.

That approach necessarily carries the possibility that the State law, the meaning of the State law, might need to be adjusted in order to avoid inconsistency and that is inconsistent with the settled position that a State law is to be picked up, if at all, with its meaning unchanged.  That principle is far more readily reconciled with the ordinary approach that the Court would adopt in a 109 case, where the starting point is to construe the Commonwealth law, then to construe the State law, then to compare the legal operation of those two laws to see whether or not they conflict – no adjustment.

So that, we submit, points analytically against an implied repeal practice.  The practice of the Court also points against adopting a strict implied repeal type notion, and your Honours will see that, and I do not want to dwell on this, but if your Honours could turn briefly to Macleod v ASIC (2002) 211 CLR 287, which is in volume 3, tab 36.

NETTLE J:   Thank you.

MR DONAGHUE:   I am going to this just as an illustration of the way the Court has actually applied the “otherwise provides” test.  The issue in the case, very briefly, was ASIC had successfully prosecuted a party in the Court of Petty Sessions.  The defendant had appealed and succeeded in the Supreme Court, and ASIC sought to appeal to the Full Court, where it succeeded.  Then on further appeal to this Court, there was a challenge to ASIC’s power to institute the appeal and this Court upheld that challenge. 

The question was, and you see this at paragraph 21, whether or not a particular provision of State law, 206A of the Justices Act, conferred the relevant power of appeal.  The Court at 21 is prepared to assume that 206A fixes upon a party to the proceedings the capacity to appeal and the question is then could that provision be picked up, or did the Commonwealth law otherwise provide?  In 22 you will see there is a reference to GPAO.  But then the Court describes the question as whether:

the Justices Act would have added to or derogated from those powers and functions created and conferred by the law of the Commonwealth –

which is more traditional 109 language. At 24 it is said it is necessary to construe the ASIC Act to decide whether it otherwise provides. Then at 44, on page 302, the Court concludes really simply on the basis that:

the ASC Act, is to be construed as requiring the officers or body in question to have and to exercise only such powers as the Parliament of the Commonwealth thereby has chosen to vest in them.  Where the law of a State purports to grant some wider power or authority . . . the law of the Commonwealth will be one by which it is “otherwise provided” -

In other words, the State law assumes to confer a power of appeal but did not do so because it could not add to or supplement what was already found in the Commonwealth Act.  That makes perfect sense from a traditional 109‑type analysis but, in my submission, it is far removed from a repugnancy analysis where one would say if the Commonwealth gives X power and the State law gives Y power, then the two can operate consistently with one another.

Finally on this point, can your Honours go back briefly to Outback Ballooning, which is in volume 5, tab 52.  Your Honours are well familiar with this case so I will not dwell on it, but in the joint reasons of five members of the Court, at paragraph [32], your Honours describe the “alter, impair or detract from” approach, often referred to as direct inconsistency.  Then in [33], your Honours turn to the complete, exhaustive, or exclusive statement of the law on a subject often referred to as “indirect inconsistency” and then continue at the very bottom of that paragraph - so having referred to covering the field, your Honours said:

A Commonwealth law of this kind leaves no room for the operation of a State or Territory law dealing with the same subject matter.  There can be no question of those laws having a concurrent operation –

picking up the Same-Sex Marriage Case.  That formulation of the test for indirect inconsistency is expressed in the same language as the Court has used in cases like Hoy v DPP and Gee and correctly, in our submission, draws no distinction between the questions that are asked in that context. 

But in this respect it is, we submit, perhaps important to emphasise that in cases since GPAO and Austral Pacific, the learning of the Court in relation to 109 has developed in that it has increasingly been emphasised, as it was emphasised in Outback Ballooning, that really the questions of direct and indirect consistency are just different ways of looking at the same question and that the indirect inconsistency question is appropriately understood – and your Honours deal with it in this way at paragraph [35] in the plurality reasons – as involving a question of the altering, impairing or detraction from an implicit negative proposition in the Commonwealth law that it is to be the only law on the subject.

So the “alter, impair or detract” reason is actually applied to an indirect case and it is really just a question of:  is the altering or the detraction from an express statement in the Commonwealth law, in which case the direct label might be applied, or from an implicit negative statement in the Commonwealth law, in which case the indirect label might be applied.  There is not a bright line between them.  Your Honours Justice Gageler and Justice Edelman made this point in your Honours’ separate reasons, Justice Gageler at [67] to [72], Justice Edelman at [105].

The absence of the bright line, in our submission, makes it difficult to continue to give weight to the statement in Austral Pacific that there is no room for covering the field, in the context of section 79 because that suggests that it is possible to demarcate strictly between covering the field on the one hand and other forms of inconsistency on the other, in a way that cases really since Momcilovic, then picked up in Same‑Sex Marriage and then in Outback Ballooning, that is the line of cases that use the implicit negative proposition language, and that deny the existence of the bright line.

So, in summary, your Honours, in our submission, following Rizeq and Outback Ballooning in particular, the better view is that the language of “otherwise provides” in section 79 does within its sphere of operation exactly what the word “inconsistent” does, and section 109 do, in its separate sphere of operation. It would, we submit, be most odd to apply a stricter test of inconsistency under section 79 than applies under 109, where section 79 can only operate to pick up a State law that is invalid of its own force.

If your Honours construe the Commonwealth Act and conclude that it is intended to be a complete statement on its face of all of the law on the relevant subject – that is, you construe it in a way that would engage 109 inconsistency – then it makes no sense, in our submission, to then take that complete statement and supplement it with invalid provisions of a State that can have operation only if picked up and then added into the complete scheme by the mechanism of section 79. That would be, we submit, an inexplicable result and one that your Honours should not endorse.

Your Honours, in light of the time, I will not say most of what I was going to say about why the Family Law Act otherwise provides.  We have dealt with it fairly comprehensively in writing, and we substantially overlap with the appellant on this point.

Can I make two points in conclusion.  One is that your Honours will recall that the appellant relied on the presumptions in the Family Law Act, the parentage presumptions, as one of the reasons the Commonwealth law otherwise provided and we also rely on those.

Can I ask your Honours to note that in the explanatory memorandum to the Bill that introduced those presumptions, which your Honours have in volume 6, behind tab 54, there is a very strong statement in the explanatory memorandum that supports the idea that those presumptions were intended to operate in the place of State or Territory provisions in the Status of Children legislation.  Your Honours see that on page 37 at paragraph 132, under the heading:

Division 7 – Presumptions of parentage –

And it is said:

New Division 7 provides for presumptions of . . . parentage. The provisions of Division 7 will provide a statement of the relevant presumptions of paternity and parentage for the purpose of determination of these issues under the Principal Act, and will replace the operation for those purposes of the common law presumptions and, in State and Territories with Status of Children legislation . . . the statutory presumptions under those laws. Those statutory presumptions vary from jurisdiction to jurisdiction –

And it is said at the end – so it finishes:

will . . . be the child of the same two parents irrespective of the operation of the relevant State or Territory law.

So that, in our submission, is a statement in the extrinsic material which strongly supports the point that the appellant made.

Finally, we noted – and the appellant did make this point as well – that on the question of the exhaustive nature of section 60H, if section 60H is interpreted in that way then the consequence is not just as a matter of legal possibility but actually on the facts of this case the child at the centre of the proceedings would have no parents.

Victoria said, in response to this point, that we were talking about a case where, if the Commonwealth repealed particular laws prescribed under section 60H, then that absurd consequence might arise, but we are not in the territory of any need to repeal laws. If your Honours go to section 60H you will note that, structurally, it applies only in certain, very particular, categories and the category addressed in subsection (1) is the category where:

(1)      If:

(a)a child is born to a woman as a result of the carrying out of an artificial conception procedure while the woman was married to, or a de facto partner of, another person (the other intended parent); and –

also where there is consent, so one is married to or with a de facto partner.  So if we take a single woman who conceives through artificial conception, she is not within (1), she is obviously not within (3) which is dealing with men, so she must be within (2).  Subsection (2) only applies, though, where:

(a)a child is born to a woman as a result of the carrying out of an artificial conception procedure –

No problem there, but:

(b)under a prescribed law of the Commonwealth or of a State or Territory, the child is a child of the woman –

In other words, you need to find a law of the Commonwealth or a State that specifies that the child is the child of the woman. The prescribed law under (2) is section 14 of the New South Wales Act. And when you go to section 14 of the New South Wales Act – and if your Honours could go to that – you will see a provision dealing with the situation in 14(1A) of a woman who is married or a de facto partner of another woman, but there is no provision dealing with a single woman who conceives a child by artificial conception. So there is no woman who is prescribed under this law as the mother of the child and, therefore, on an exhaustive construction of section 60H, any child born through an artificial conception procedure to a single woman has no parents.

KIEFEL CJ:   Is that right?  Or would simply the ordinary meaning of “parent” apply to the woman, given that 60H is ‑ ‑ ‑

MR DONAGHUE: That is right, your Honour. That is our submission. That is how it works. And, really, the point that I am trying to make is because it would be absurd for the provision to be construed in that way. It cannot, sensibly, be construed in that way. Section 60H covers the cases which it covers and all other cases are to be dealt with by the ordinary meaning of the word “parent”.

GORDON J:   You do not depart, though, from the appellant’s submission that, in a sense, parentage is established by various mechanisms under the Act?

MR DONAGHUE:   No, no.

GORDON J:   60H is just one of them.

MR DONAGHUE:   Precisely.  So what I am trying to answer is the submission put against us, that 60H is a comprehensive statement of artificial conception.  It cannot be right, for the reason I have just addressed.  If the Court pleases.

KIEFEL CJ:   Thank you, Mr Solicitor.  Mr Lloyd, you are speaking as counsel for the Independent Children’s Lawyer?

MR LLOYD:   I am, yes, your Honour.  If I can indicate that, broadly speaking, I will not address every topic that the appellant and the Commonwealth have addressed.  To the extent that we do not say anything about them, the Court should accept that we embrace those submissions.

The main area in which we differ, and I will address this, is we say section 79 does not pick up a law like section 14 at all, which departs from the Commonwealth but we will address some other things, or some of the same things, in perhaps slightly different ways.

The error found by the Full Family Court, of course, was expressed as the trial judge had failed to apply the relevant law, deciding that the current appellant was a parent. The court considered that it was mandatory to apply section 79 of the Judiciary Act, and that if it had have been applied, the trial judge would have appreciated that section 14(2) resulted in the appellant not being a parent. We say that that approach reflects error.

When construing the Commonwealth enactment here, the Family Law Act, the task is to construe the provisions of that Act. One does not start with section 79, and we say in this case one never really gets to section 79. The trial judge was considering whether to make, or what parenting orders to make under section 65D of the Family Law Act; when making such orders it will often, if not always, be relevant to identify the parents of a child. Obviously, usually that will not be controversial. One example of the need to identify the parents can be seen in section 61DA of the Family Law Act, which creates a presumption relevant to the making of parenting orders.

We also note, and I will come back to this, section 60CA, which makes the best interests of the child the “paramount consideration” when making parenting orders.  There was no dispute about the identity of the parents of the younger child but there was a live dispute about the parents of the older child and thus the trial judge had to consider that.

That involved the need to construe the Family Law Act and the word “parent” as used in that Act.  More precisely, the trial judge needed to determine whether the appellant was one of the parents of the older child, as the word is used in the Family Law Act.  That word has a partial definition in section 4, to which the Court has already been taken, I will not go back to it.

It is defined only to the extent that it is deployed, that is, the word is deployed in the context of a child who has been adopted.  We say Parliament chose to leave the word undefined when used in the context of children who have not been adopted, thus being able to pick up the ordinary meaning, absent any other provisions.

We accept, of course, that an Act may alter the meaning of words and in order to pick up meanings from other Acts, whether they be Commonwealth or State Acts, indeed, as has already been pointed out, the Family Law Act does this, in a number of what we would say were carefully constructed contexts.  The first one the Court has already been taken to is the definition of the word “adopted” which is in section 4 of the Family Court Act.  It is defined so as to extend to adoptions that have taken place “under the law of any place”.  So, in that way, at least the outcomes of the products of the laws of other places are recognised and that the concept of adoption of a number of other laws embraced, broadly speaking, and informs the notion of adoption under the Act.  That is one method.

The second method by which concepts in the Act can be affected by the laws of other places can be seen in section 60H. The Court has been taken to that as well. What we say about it is ‑ using section 60H(2) as an example – go to that, it is in the first book at page 97 ‑ it provides for the possibility of the prescription of State and Territory laws that provide for a child to be a child of a woman when the child is born to the woman “as a result of the carrying out an artificial conception procedure”.

Now, where such a law has been prescribed, then when a State has chosen to pass an Act that makes a child the child of such a woman, that effect is then made to have operation for the purposes of the Family Law Act but the effect does not have operation by reason of the State law, it has operation by reason of section 68(2).  So, the State law is a precondition for giving an effect under the Family Law Act.  It is not, in any way, directly embracing the State law or giving effect to it.  It just uses it as a precondition.

A slightly different but somewhat similar method can be seen in section 60HB which concerns surrogacy arrangements. In that case, the precondition, again the effect is an effect under that section but there has to be two things: the existence of a prescribed law of a State that says something, then in addition:

a court has [to have] made an order under a prescribed law of a State –

But it is not the order of the court that has the effect, it is the operation of section 60HB that has the effect.

The point we ultimately seek to make is simply that what was involved for the trial judge was the construction of this Act.  The Parliament in drafting the Family Law Act could have made provision for State laws pertaining to the meaning of “parent” to automatically pick up something like the Status of Children Act as it did in the concept of – defined concept of “adopted” or it could have replicated the effect as it did in section 60H but it chose to do neither of those things in relation to section 14(2). It did not pick it up. It did not even allow for it to be adopted by prescription.

We say that one is then left to construe “parent” as used in the Act having regard to the text, context and structure of the Act and not by reference to State or Territory laws; putting this another way, one cannot say that because “parent” is not expressly defined in the Family Law Act there is a gap that needs to be filled by State law. 

Rather, the whole content of the meaning of the Act of the word “parent” is to be sought and answered by a proper construction we say of the Family Law Act and there is no need to go anywhere else, save to the extent, as I have said, that the Parliament has chosen to adopt or to give effect to State laws.

One would not go in particular to any State laws that were inconsistent with provisions of the Act.  So if one goes to page 213 of the book to section 69R, that gives rise to a presumption, albeit a irrebuttable presumption, and we would say that in no circumstances would one construe the word “parent” as picking up a State law that was inconsistent with an express presumption of the Act.

The next issue it would address is we are not expressly affected by provisions such as section 60H. The word “parent” in this Act has its ordinary meaning. There is an issue as to whether or not section 60H is exhaustive. My friend the Solicitor‑General has addressed that. We probably will not add anything further but we would certainly embrace his analysis that says that, even on the circumstances of this case, if section 60H were exhaustive, of who parents are of children born pursuant to artificial conception procedures, then the older child, who I ultimately represent, would have no parents and that would be a most perverse construction and one that is not demanded and should not be adopted.

On the question of whether or not in the circumstances of this case on the ordinary meaning of “parent” we say it is clear that the first respondent is a parent.  She contributed in every possible way and there is no dispute about that.  Also we say, according to the ordinary meaning, the trial judge made no error in construing that the appellant who contributed biologically or genetically and also socially and economically is a parent and we say that was a finding of fact that was open and shows no error.

I have a little further to go.  I am not sure whether the Court sits until 12.45 pm.

KIEFEL CJ:   That might be a convenient time, thank you.  We will adjourn until 2.15 pm.

AT 12.45 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

KIEFEL CJ:   Yes, Mr Lloyd.

MR LLOYD:   Thank you.  Just before the break, I had indicated that on the facts on this case it is clear that there are two parents.  I should say something a bit further about that.  The appellant made some submissions earlier about the factors that go to inform the ordinary meaning; we do not necessarily diverge from that.

But what we do say is that the Court in this case need not make any findings about the ambit of the ordinary meaning because the trial judge applied the ordinary meaning, and applying the ordinary meaning found that the appellant was a parent and the point was taken on appeal that the trial judge should have had regard to the effects of section 79 of the Judiciary Act and should have applied the presumption.

If we are right and the appellant are right that that presumption should not have been applied, then there are no remaining issues for the Court to determine in relation to what is the ambit of the ordinary meaning of “parent”.  While we accept that the elements of the – the gestational element, the genetic element and the social and psychological elements are all elements, whether any of them can individually be sufficient, whether there is an intent element as well being the intent maybe of a father at a particular point in time or for that matter, the perspective of a child, is not something we say the Court needs to consider.

That said, because we apprehend one point raised against this will be the fact that it is at least theoretically possible that on an ordinary meaning of “parent” there could end up being more than two parents we do want to say something about that.  The point is raised that there are aspects of the Family Law Act that use the word “both”, in terms of “both parents” or “either parent” which we accept at face value would suggest that it is on an assumption that there can only be two. But we say that that is not the full picture, partially because there are many other expressions which are at least neutral. So if it says, or there are times it says “each parent” in at least one instance in section 60HB, it talks about one or more parents and whether or not there are one or more parents is not decided by the Family Law Act but is decided by whatever the prescribed State legislative provision is.

So we say that the Family Law Act, the language of “both” or “either” is broad enough in a case, which is not this case – in this case both parties, both active parties or all active parties only ever said in respect of each of the two children that they each only had two parents.  But if it is put against us that on an ordinary meaning there could possibly be three parents we say that that possibility is not one that should lead the Court to reject that approach.

We, in our written submissions, rely upon a case, NSW Registrar of Births, Deaths and Marriages v Norrie (2014) 250 CLR 490. That is a case, your Honours will recall, that dealt with the expression “opposite sexes” in a different piece of legislation and the use of such language did not preclude the finding that there was also a non‑specific gender allocation or characterisation that could be done. We say the same broad analogy is true. Here, the words “both” or “either” are broad enough to deal with any possible rare cases of three parents but, as we say, the Court need not consider that. But if it is advanced, that is what we say.

The remaining thing I would like to address is section 79 and how it relates to section 14(2) of the Status of Children Act. We contend that section 14(2) is not the kind of State law which section 79 applies. We rely upon the passage in Rizeq, which describes the kinds of laws that are picked up as in paragraph 87 in Rizeq:

State laws conferring or governing powers that State courts have when exercising State jurisdiction –

When such a law is engaged by section 79 it:

applies that text as Commonwealth law to confer or govern –

the same exercise of jurisdiction in federal jurisdiction. Section 14(2), we say, is not a law that confers or governs powers that State courts have when exercising State jurisdiction. It is rather just a substantive rule of law. First of all, we would say section 14(2) is not in its terms directed to court proceedings at all. It refers to a presumption, an irrebuttable presumption. It, we say, operates as a rule of law and binds not only courts but also administrative decision‑makers. Perhaps if I go further than that and I go to the provision, which is under tab 4 in the Status of Children Act.  I notice a few things about the Act.  The first one is section 4(1)(b) which provides that:

This Act applies in respect of a person:

. . . 

(b)whether born before or after the commencement of this section -

The only reason I refer to that is because in paragraph 12 of the Commonwealth’s submissions they rely upon a decision of Justice Bryson suggesting that these presumptions are procedural and that is why they apply to people born before the date.  We say they are not procedural and that is not why they apply; they apply to persons born before the date because section 4(1)(b) says so.

Then in Part 2, under the heading “Status of Children and dispositions of property” there are three sections that have some passing relevance.  They deal with how various dispositions or instruments are to be construed or resolved, depending upon when they were drafted by reference to the date of 1 July 1977, which is the date that the Children (Equality of Status) Act 1976 commenced.

We say that those provisions are relevant not just to administrators but also perhaps to trustees who might be dealing with a will or a trust or something of that kind which tend to suggest that these are substantive principles of law. Then if I note in passing section 12(1):

A person is presumed to be a child’s parent if:

(a)while the person is alive, a prescribed court has:

(i)found expressly that the person is the child’s parent, or

(ii)made a finding that it could not have made unless the person was the child’s parent, and

(b)the finding has not been altered, set aside or reversed.

That is an irrebuttable presumption. Now, if I can put it this way, this Act is the result of two Acts being brought together. The two Acts are referred to in section 37: The Children (Equality of Status) Act, which in 1977 resolved certain issues of illegitimacy, and then the Artificial Conception Act 1984. So they have been brought together and this section 12 is a reflection of the first Act, the Children (Equality of Status) Act. It, we say, has this significance:  that such a determination by a court will often be and certainly could be done on the balance of probabilities.  If one goes to section 18, it says:

Despite any other provision of this Act, a prosecutor cannot rely in any criminal proceedings on a presumption arising under this Act -

If a prosecutor could rely upon a presumption under the Act, then someone could be determined to be a parent on the balance of probabilities in a court under section 12(1) and then the prosecutor would not have to prove it beyond reasonable doubt in any relevant prosecution. We say that was really the work of section 18. Those two provisions both were drawn from the Children (Equality of Status) Act.

Then there is section 14 which sets out a number of irrebuttable presumptions, 14(2) being the second one. It was drawn from section 6 of the Artificial Conception Act 1984. We say in that Act it very clearly and unambiguously is a presumption of law and operated as a rule of law, not as an evidential rule and we say that nothing in this Act changes that.

The Commonwealth, I think, says, well, there can be – maybe before going to that I will note that in contrast to section 14(2) which applies without reference to the notion of proceedings, subsections (5) and (5A) pick up the notion of proceedings, then those proceedings are clearly imagined to be curial proceedings because they are picked up in – referred to about courts in section 16. So, one then can draw a distinction between subsections (5) and (5A) and 14(2) relevantly.

Then, in relation to section 17, there is a provision which deals with how to resolve possible conflict between two irrebuttable presumptions and what section 17(1) does is indicate to a court how, in effect, conflicting rules of law are to be resolved and which one prevails.  Not that I suggest this is in any way decisive, the word “prevails” – it says “prevails”, it does not say which one is rebutted, it says which one prevails which is consistent with language one typically sees where there are two conflicting rights and one prevails over the other, not that one negates the other in any way.

Now, I think, perhaps I have this wrong but I think the appellants, in effect, say that none of these provisions would engage section 79 of the Judiciary Act and the Commonwealth says all of them would engage section 79 of the Judiciary Act.  We would say that it may well be that relevantly section 17 might be seen as a provision which governs the exercise of jurisdiction – it tells State courts how to resolve that conflict and it is to resolve it according to that rule. 

There is a rule aspect to it and maybe it is best seen as a rule but if it is not, if it is seen as governing how to exercise jurisdiction, then maybe it is picked up by section 79 but that would only arise in a context where in federal jurisdiction there was a need to resolve irrebuttable presumptions. It does not make the irrebuttable presumptions themselves picked up. They are still part of substantive law.

GAGELER J:   Mr Lloyd, insofar as the Act provides for rebuttable presumptions, for example, section 10 or – just take that as an example, is that a presumption that is picked up if at all through section 79 of the Judiciary Act?

MR LLOYD:   Well, first of all, I will read section 10.

GAGELER J:   It may not be the best example.

MR LLOYD:   Well, perhaps if I put it this way.  We certainly do not say that every rebuttable presumption is picked up.  There can be many rebuttable presumptions that are rebuttable presumptions of law.  So one might be better resolving trust in relation to a child is assumed to ‑ ‑ ‑

GAGELER J: I am just focusing on this Act, and the sort of presumptions that section 15 is referring to, one of which I think is the presumption in section 10. So it is a presumption, and it can be rebutted by proof on the balance of probabilities. My question is whether those rebuttable presumptions in this Act are laws of the nature that get picked up by section 79, if at all.

MR LLOYD: I think we do not deny that they could well be. I mean, we do not have to decide that, or your Honours do not have to decide that. But maybe section 14(5) and (5A), they are rebuttable presumptions. As to whether or not the consent existed at a time, and that might be something that would be picked up in a court exercising federal jurisdiction, in which section 14(1) or 14(1A), the rule in 14(1) or 14(1A) had to be decided. So that rebuttable presumption might be picked up by section 79. We do not, as I say, deny that.

GAGELER J:   Why I choose section 10 as the example is that if you read section 10 in isolation, it has a rule‑like quality about it.  But when you read it with section 15, the character might be seen to change.  My question is really, are you basing your argument on the point that it is an irrebuttable presumption as distinct from a presumption that has an element of a rule‑like quality about it?

MR LLOYD:   All I need to do for present purposes is say that the presumption we care about is irrebuttable, that is enough for it to be a rule of law.  We say that there are rebuttable presumptions that are also rules of law.  Whether the rebuttable presumptions in this case are more in the nature of rules of evidence that could be picked up, I do not have to say that one way or the other, but it is not how we put our case. 

We put our case in that the irrebuttable presumptions in 14(1) through (3), and 12(1), are all rules of law, and are not picked up by section 79. I should say this, the learned Solicitor‑General for the Commonwealth said, and maybe I misapprehend his argument, but I think what he is saying is that, well, to the extent that they can be in proceedings, then they govern the exercise of jurisdiction.

We say that is not consistent with Rizeq. But to the extent that – I mean, section 6 of the Misuse of Drugs Act came up in a federal proceeding. It governed the proceeding in the sense that it was the applicable law. But it was found not to be a law picked up, because it was not governing it in the relevant sense. So we say that section 14(2), being an irrebuttable presumption, is not picked up in any relevant sense.

GAGELER J:   Most of the provisions of the Uniform Evidence Act, I think at least in New South Wales, are applicable in proceedings in a court and in certain administrative proceedings. Is the circumstance that the rules are applicable in administrative proceedings enough to disqualify those rules being picked up under section 79, in your submission?

MR LLOYD:   Perhaps not.  Perhaps the fact that it extends out – I mean, I am not sure to what extent it is the position that the Rules of Evidence are picked up in administrative proceedings but let us assume, for the sake of argument, that they were.  If they have the character of being something which is designed to govern the exercise of State court jurisdiction – but we say these do not have that character because they apply to administrative decision‑makers – they would also apply to trustees or the like who have to construe instruments that applied prior to it.  It has a broader ramification, so it is not properly characterised as one which governs it.  It is just the law and obviously is applied in State jurisdiction but it is not applied as a law which confers powers on State courts or one that governs the exercise of jurisdiction but rather governs the outcome of cases.

The Commonwealth also, in their submissions, say that section 14(2) operates as a kind of deeming provision that is a statutory fiction. It then says that it must be construed as operating only for the purpose for which it was intended. It then says that that purpose is to govern the exercise of State court jurisdiction. We do not accept that it is a deeming provision in the nature of a statutory fiction and, even if it were, it is merely an assertion that its object is to regulate State judicial jurisdiction. It applies, we say, much more broadly than that.

They also in their submissions that I referred to earlier rely upon a decision of Justice Bryson to say that it is procedural, in paragraph 12. We say that that decision might be correctly decided but not on the basis that section 14(2) is procedural but on the basis that it applies retrospectively because it is said to apply retrospectively and that is why it has that

application.  So, unless the Court has anything further, they are the submissions for the Independent Children’s Lawyer.

KIEFEL CJ:   Thank you, Mr Lloyd.  Yes, Ms Doyle.

MS DOYLE: If the Court pleases, Victoria does not seek to add much to the submissions of the appellant and the third respondent on what is described as the first argument in our outline of oral argument. In other words, Victoria agrees that section 14(2) is not a law which is picked up but, if it is, the Commonwealth has not otherwise provided.

The primary reason that we make this submission was most recently articulated by Mr Lloyd and it is as follows.  It is a law which establishes a person’s status as a legal parent independently of proceedings in a court.  In other words, it makes provision for a substantive rule of law.  To put it another way, being the status – having – possessing the status of a parent is something which existed prior to the enactment of the Family Law Act in 1975 and, as it turns out, was a matter which was historically regulated by the States, initially through the prism of legitimising certain children, ex‑nuptial children, and later by dint of the fact that it is the States that regulate welfare of children and other related matters. 

It is in that context, of course, that you have just heard submissions about the other arenas in which the question of who has the status of parent operates and by other arenas I mean outside of courts and you were given some examples. Some are in an administrative context. Others involve trustees making decisions and the like. It is for those reasons that we, at first, submit that this is a law that is not picked up and applied by dint of section 79 of the Judiciary Act and we have made reference to both the brief part of our written submissions that deal with that matter and the parts of other party’s submissions that we adopt in that context.

Next, though, we submit as follows, that in the absence of a specific or a contrary provision in the federal Act, the Family Law Act, the status of parent or who is conferred with that status, may be regulated by other laws which apply of their own force. It is in this context that we submit that the State laws apply of their own force as part of the composite body of law. Of course, only if they are not inconsistent by dint of section 109 which is a matter that I must also address.

Before I go to that, can I just identify a difference which becomes relevant in terms of an example that the Solicitor‑General for the Commonwealth raised, a difference between, by way of example, the New South Wales provision with which this case is concerned and the Victorian provision. 

Your Honours have been taken to section 14(2) and, in particular, the Solicitor‑General for the Commonwealth directed your attention to section 14(1) and section 14(2). In that context, to make good an example that has been advanced by both the appellant and the Commonwealth, each of whom have raised the spectre that a construction of section 60H as an exclusive, or others have used the terminology, exhaustive provision, might leave a child with no parents. By taking the Court to section 14 it was sought to be illustrated that this would be the case if, for example, section 60H were altered, ceased to make a prescription for certain laws or appeared in a different form in which it presently appears.

Firstly, we submit that may not be the case, in any event.  There is, of course, another presumption in the federal Act, section 69R, the presumption pertaining to registration of birth which is also found in a number of the State Acts which will almost inevitably record the name of the birth mother.  Your Honour the Chief Justice also in the context of this example when it was being addressed by the Solicitor‑General indicated that if there is an ordinary meaning of the word “mother”, it is likely, of course, to include a birth mother, particularly one who also has a biological connection with the child.

Against that background, can I just draw the Court’s attention for completeness to the cognate provision in the Victorian Act which appears in the joint book of authorities, tab 17. The Act starts at page 110 but the particular provision is section 15 which is at page 833. At page 833 you will see that section 15(1) of the Status of Children Act 1974 (Vic) operates slightly differently to the New South Wales provision. It has the same effect, as do all the other State and Territory laws, with respect to the position of a sperm donor, in the position of the appellant in this case, but it makes expression provision, if that be necessary, that the woman who falls pregnant in a situation without a partner is the mother. If the Court looks at the header to section 15:

Women with no partner: presumption as to status of child –

which directs attention to the example that was the subject of the submissions that were made by the appellant and the Commonwealth on this topic.  And then 15(1) provides:

If a woman who does not have a partner undergoes a procedure as a result of which she becomes pregnant –

(a)      the women is presumed, for all purposes, to be the mother –

It is for that reason that we say ‑ and this arises at paragraph 3(f) in our outline ‑ that the spectre of there being no parents, we say, does not arise.  One would have regard to either the birth registration provision, possibly also to any ordinary meaning of the term “parent” but in particular in this Act, for example, to that provision in 15(1).

I say those things by way of background to the inconsistency submissions that we seek to make because, of course, the primary task before moving to any analysis, whether it is the otherwise provided analysis under section 79, or the inconsistency analysis under 109, of course requires as a stepping‑off point, a proper construction of the two provisions in question.

We submit that there is no provision in the Family Law Act which requires that a man whose sperm is used in an artificial conception procedure which results in the birth of a child is to be treated as the legal parent of that child. Can I say more generally in relation to the section 79 “otherwise provide” debate, and the section 109 “inconsistency” debate, that we agree with the Commonwealth and the appellant that it is unlikely that the application of the two tests under those provisions will produce a different result in any particular case but, of course, they are conceptually distinct approaches and we accept what has been said by each of the parties this morning in that sense.

Section 79, of course, invites a consideration or a comparison of the surrogate federal law with the Commonwealth law. Section 109, at least in the circumstances of this case, directs attention to whether the State provision would alter, impair or detract. It is in that first sense that I have emphasised the submission that there is no provision in the Family Law Act which positively provides or requires that a sperm donor in the position of the appellant be treated as the legal parent. The other way of analysing the section 109 conundrum is this. It is the search for the implicit negative proposition, or attempting to discern whether the Commonwealth intends that nothing but that which the Commonwealth has provided shall apply.

Now, in the submissions of all of the parties, it has not necessarily always been clear whether the inconsistency that has been pointed to by the parties who propound that view is said to derive from section 60H per se, in and of itself, or from the existence sprinkled through the Act of the word “parent”, in the Family Law Act, or some combination of the two.

In our submission, neither path will demonstrate section 109 inconsistency. If one focuses on section 60H, it is silent. You have been taken a number of times to the three limbs in it. That limb 60H(3) does not prescribe any laws we say is not a surprise in circumstances where, by dint of it being expressed in the negative and each of the State and Territory laws all providing that a sperm donor in the position of the appellant is not the father, and I have taken you to the Victorian example which positively provides the birth mother, who is single positively is the mother, it is not surprising then that section 60H(3) has lain dormant.

If one looks at it from the perspective rather of the existence of the word “parent” in the Family Law Act and attempts to discern an inconsistency, we submit one will also not find such an inconsistency.  Again, you have been taken to various definition provisions but it may be useful to just return to the definition of the word “child” and then I will draw the Court’s attention to one other aspect.

The word “child” appears in section 4 of the Family Law Act. Your Honours will recall that it, of course, loops in the notion of adoption and importantly at the end of the definition appears these words:

Subdivision D of Division 1 of Part VII affects the situations in which a child is a child of a person or is a child of a marriage or other relationship.

I mentioned that to make sense of in addition the heading which appears to that subdivision which is the subdivision in which section 60H appears. This is most simply found by turning to page 95 in the joint book. It is above section 60EA in the Act. It is interesting that the subdivision is headed:

Interpretation‑‑how this Act applies to certain children

Then as one moves through the subdivision one finds section 60H. In our submission, that bolsters the conclusion that the Family Law Act does not define “parent” relevantly; section 60H is intended to be and provides for all of the circumstances in which a sperm donor is a legal parent and the last phrase in the definition of “child”, read with this header or title to the relevant subdivision, explains that these things are affected by what has been done in section 60H.

Nothing in that analysis, in our submission, drives one to any conclusion that the word “parent”, undefined as it is other than expressly looping in adoption throughout the Family Law Act, is inconsistent with the State law regimes which we say apply of their own cause.

Can I take the Court also to the decision in H v The Minister.  The Commonwealth has taken you to this perhaps for a different purpose.  There are a couple of other paragraphs therein that I want to direct the Court’s attention to in support of a related submission we make, which is that biology is not either necessary or sufficient to establish parenthood.  H v The Minister appears in the joint book of authorities at tab 32 and the report commences at page 1299 of the joint book.

It is important to note the context in which this decision of the Full Court of the Federal Court arose.  Being a case concerned with citizenship, it of course involved the Court in a search for a sufficient connection with Australia in order to entitle a child to obtain citizenship by dint of the fact that they had a parent who was Australian.

Now, against that background there were at least two provisions that the court looked at and regarded as of some assistance.  Section 16 is set out for convenience at paragraph 55, which is at court book 1314.  Really all your Honours need to know about it is that the touchstone was that:

A person born outside of Australia –

and in that context, after a particular date:

is eligible to become an Australian citizen if:

(a) a parent of the person was an Australian citizen at the time of the birth –

So that was the context in which two children seeking to obtain Australian citizenship by these means sought to rely on their social parent.  Now, I think in passing it was suggested by the Commonwealth that the second of the appeals before the Court here provided some analogy to the present circumstances.  We say quite the contrary. 

Here, there was no biological link with respect to either of the children seeking to obtain Australian citizenship.  In fact, their sole link was that of a social parent.  Both happen to be instances of a heterosexual couple, where a putative father had early on accepted responsibility for a child, as it turns out, one of those fathers operating under a mistake, and the other not.

It is against that background that I should also direct your attention to the other provision in the Citizenship Act that the court looked at. Section 8 is set out at paragraph 91 in the court’s reasons, which is at court book 1323. Now, it was not determinative, perhaps not even relevant to the question before the court but in a fulsome analysis of the history of the Citizenship Act and any provisions which might shed light on the question confronting the court, which was social parenthood, regard was had to section 8 in the Citizenship Act, which provided:

“Children born as a result of artificial conception procedures or surrogacy arrangements” –

and then a provision was made:

This section applies if a child is:

(a)a child of a person under section 60H or 60HB –

and your Honours will recall that HB is the surrogacy arrangements provision in the federal Act.  Their Honours helpfully summarise the effect of section 8 just below it in paragraph 91:

Broadly speaking, the effect of s 8 is to deem a child born as a result of surrogacy arrangements or artificial conception procedures to be a child of the person (in the circumstances outlined) although there is no relevant biological connection with the child; and, further, to deem –

and their Honours went on to explain how partners of certain people are affected.  Against that background can I, in addition to the paragraphs that the Commonwealth has taken you to, indicate that it is also important to have regard to these paragraphs:  84, 91 and 97.  I will take your Honours to paragraph 84 at page 1322.  This is to make good the first of the propositions I made a moment ago, and that is that biology is neither necessary nor sufficient to establish the status of parenthood. 

As their Honours indicate, after an historical analysis at paragraph 84, of course in times gone by, biology was not sufficient to establish parenthood when legitimacy was still the touchstone because, of course, a man may be biologically a parent but so long as the child was ex‑nuptial, and therefore illegitimate, to use the old language, bore no responsibility for that child.  There is an analysis by their Honours there of those circumstances.

At paragraph 91, as I said, the court turns to other provisions in this Act and at paragraph 97 their Honours then, having looked at the purpose of the Citizenship Act, and I am perhaps oversimplifying but in summary their Honours said of course it is a question of sufficiency of connection to Australia when one is concerned with that topic. Their Honours said at 97:

One must conclude that there is little, if anything, in the text or structure of the Citizenship Act that would support the proposition that . . . the word “parent” only can mean biological parent –

Can I jump to paragraphs 127 to 129 to conclude the analysis of this Act where their Honours say, bringing the threads together, there is nothing in the objects of this Act which would exclude the social parenting connection.  That is a matter their Honours address at paragraph 127 and they talk about what is in keeping with the spirit of the Act.  At 128, their Honours said:

The word “parent” is an everyday word in the English language –

Now, the Commonwealth took you to that but not all of paragraph 129 which, we would submit, is important:

Being a parent within the ordinary meaning of the word may depend on various factors –

They hark back to the analysis at paragraph 84.  Their Honours say:

Once, in the case of an illegitimate child, biological connection was not enough; today, biological connection in specific instances may not be enough –

and, of course, they there cite the way that section 8 refers to section 60H and HB. Against that background we make these submissions. That case was, of course, intrinsically focused on section 16(2) of the Citizenship Act as informed by reading that Act as a whole. Their Honours, in that context, make the important point that biology has for quite different reasons not been sufficient in the past and may not be sufficient in the present and in that context their Honours refer to the very – to a section which picks up or refers to the very section that we are concerned with here, section 60H.

I have addressed this example in another context but it is against that background that we have submitted that the spectre of a child being left with no parents is not a real one and, in our submission, when the State laws are treated as part of the single body of composite law and applied, what one will see then is that there will always be one parent or a child, very often two but not three. 

At subparagraph (3)(g) of our submissions, on the final page of the outline, we point in summary form to the analysis in our written submissions of the various provisions in the States and Territories.  It is important to, perhaps, head off at the pass, another spectre which was raised against us in some of the submissions, and that is the risk of forum shopping if the State laws are held to apply of their own force.  The spectre will not be realised because, as it turns out, each of the provisions of the States and Territories are uniform on this question. 

A sperm donor to a single woman who gives birth is deemed irrebuttably not to be a parent or, to put it the other way around, there is no State or Territory where a sperm donor in a position such as the appellants is the father, so that there will not be this circumstance in which those might seek to either profit from the place of birth or conception or from the State in which they commence or respond to proceedings in the Family Court.

The uniformity of the provisions and the fact that they all make this rule or provide for this rule with respect to the sperm donors is of course something that both the appeal court in this matter and Justice Fogarty have identified.  Can I take your Honours to the decision of the Court of Appeal in this proceeding, which is in the court book at tab 56, I think.

BELL J:   Just before you do, can I clarify one matter?

MS DOYLE:   Yes.

BELL J:   Do I understand you deal with the Commonwealth submission respecting the absurd result were 60H to be exhaustive in relation to children born as the result of artificial conception procedures that one would understand in the usual course, the woman giving birth to the child as the result of such a procedure would attract the presumption under 69R because she would be registered?

MS DOYLE:   Yes.

BELL J:   That is the complete answer to the absurdity argument, is it?

MS DOYLE:   It is a very good answer.  There is an additional answer, one that was suggested by the Chief Justice before lunch and that is if there be any discernable ordinary meaning – I should step back a bit – our primary submission is what is the ordinary meaning of the word “parent” in the context of artificial conception and we say it is not necessarily the case that there is one.  But if there be one it must include the birth mother or, at least, the birth mother who also has a biological connection. 

I make that distinction because I am cognisant of the surrogacy provision in HB, which a number of parties have referred to without ever reminding your Honours that it does not refer to State rules, per se.  It refers to the outcome of State court proceedings.  It refers to a court order.  That is because the States’ provisions – I do not have a familiarity with all of them but at least the Victorian ones - are still at pains not to legitimise overseas surrogacy arrangements or anything other than altruistic surrogacy.  So there are very explicit rules laid down about that.

However, if there be an ordinary meaning to the word “parent” in this day and age of assisted conception of all different kinds and surrogacy arrangements of which there are many different examples and permutations then, at least, a birth mother who has a biological connection with the child must fall within that ordinary meaning.  Where we part company with other parties is we say a sperm donor does not fall within that ordinary meaning.  It is that, amplified by the other provision to which your Honour just referred, 69R.

Part of the appeal court’s decision I just wanted to direct the Court’s attention to is at tab 56 in the joint book.  It starts at page 2422.  I would like to direct the Court’s attention just to paragraphs 83 and 84.  It is a handy way of also being reminded of what Justice Fogarty has said in B v J.  This is at page 2436 in the joint book.  In that proceeding:

Fogarty J pointed out in B v J that the Standing Committee of Commonwealth and State Attorneys‑General repeatedly determined in the 1980s that there should be uniform laws dealing with the status of children born as a result of artificial insemination.

If your Honours go to the decision of B v J, which I will not trouble the Court with now but we have set out the references in g.i. of our outline, there is a more fulsome analysis and an extract of those materials.  It is at paragraph 84 that Justice Thackray, with whom their Honours on the appeal court agreed, said:

I consider it would be a curious result if the Commonwealth was found to be out of step with the laws of all States on this issue, which would be the result of adopting the approach advanced by the respondent –

in the court below, and it was in that context that his Honour agreed with:

the appellant’s senior counsel that adoption of his “entirely satisfying federal approach” leads to a “thoroughly satisfying and coherent system of law”.

We borrow those remarks in support of our submission that the State laws, being first of all, under our primary argument, rules in relation to who possesses a particular status, the status of parenthood, are apt to apply of their own force.  It transpires they are all uniform, so there is no risk of unseemly forum shopping and it also turns out they are uniform for a reason, the reason which is articulated or referred to in those paragraphs in the appeal court’s decision as expressed more fully by Justice Fogarty in B v J – that is, what comes through from those materials is the desire to be able to fix the status of parenthood for all time at a point in time, at any point in time, not on the basis of evidence of the type to which the Commonwealth and the appellants point, and the third respondent for that matter, in this appeal, because the type of analysis that their approach requires is one which admits of evidence, including, it would appear, as to intention, biology and social parenting.

Once one gets to intention, of course one might imagine that a court might hear evidence both from the sperm donor, from the birth mother and each of their partners and perhaps even other people who are witnesses to or relevant to relevant conversations or documents recording intention.  Once one is concerned with social parenting, as our written submissions express in more detail, how much social parenting will be enough.

If the degree and nature and quality of social parenting changes over time or over a period during a child’s life, the approach to the meaning of the word “parent” propounded by those who are against us on this point will also admit of a different answer over time.  That, in our submission, flies in the face of the drive towards certainty, uniformity, which of course were adopted in the child’s best interests as criteria.

The final argument that we advance is that if section 14(2), if a different view is taken about the character of the law in the exact sense, is picked up then it is our submission the Commonwealth has not otherwise provided – that is to say, if the law falls into that second category then, for the same reasons as those which I have articulated with respect to inconsistency and for the same reasons as are articulated in those other paragraphs to which we have drawn attention at the foot of page 3, then one could not find that the Commonwealth has otherwise provided in those circumstances.

There is one other matter that I should emphasise and that is subparagraph 3h in our outline and that is of course the reality that a finding that the appellant is not the legal parent - because our submissions draw a distinction throughout between the legal and the social parent - a finding that he is not the legal parent will not, of course, deny his capacity to obtain parenting orders.  He is undoubtedly the social parent of child B and by dint of various sections in the Act but also the approach that the Family Court traditionally brings to these matters it will resolve all questions determining – all questions by reference to the child’s best interests. 

The example we give of the decision there, Wilson & Roberts (No 2) - I will not take your Honours to but it is a good example of the subtle and nuanced reasoning that the Court engages in, the level of detail and analysis it brings to this question of the best interests in a contest, to put it crudely, between legal parents and social parents.  In those circumstances, the court is used to dealing with questions such as relocation and many other complicated questions on the continuum between no dispute and a very stark dispute with respect to relocation, always determining those matters by reference to the child’s best interests.  If the Court pleases.

KIEFEL CJ:   Thank you, Ms Doyle.  Mr Walker.

MR WALKER:   If it please the Court.  As your Honours, I think, know, there has been circulated and made available to the Bench a proposed notice of contention to meet at least partially the objection raised in the appellant’s reply.

KIEFEL CJ:   It is not opposed, as I understand it.

MR WALKER:   As I understand the position, it is not opposed, subject to the explicit reservation of questions of costs on the part of the appellant.

KIEFEL CJ:   I see.  You have leave to file a notice of contention.

MR WALKER:   May it please the Court. As your Honours can see, we attempt to jump straight to a matter which calls both for particular analysis of statutory texts in this case, section 14 of the State Act, section 60H of the federal Act and others beside, but also raises some general doctrinal questions said to emanate from the explanation or more precise exposition advanced in Rizeq 262 CLR 1.

At the heart of our contest with, I think, most of our friends most of the time is the first of the propositions, numbered 2 in our document, namely, the fact that subsections 14(2) and (4) of the Status of Children Act 1996 (NSW) might very readily be understood as operating on and in relation to persons independently of any court proceedings is not enough to render it ineligible for any purpose to be picked up by section 79.

As we understand it, and I apologise if I have misunderstood it, it is advanced against us with varying degrees of vehemence, that Rizeq means that once a court can be said to have the character that we summarise in our proposition, our paragraph 2, then it automatically thereby falls out of consideration as a candidate to be picked up under section 79.

And your Honours appreciate that when I say “a candidate to be picked up”, I am talking about its consideration as a putative surrogate federal law, as it is sometimes put, by which I mean it will not be picked up of course if there is provision otherwise, relevantly, in a law of the Commonwealth.

It is at that point, as your Honours have already heard today and read in I think everyone’s submissions, that there has to be some recognition of the alternative, conceptually, which is that there will be a single composite body but it cannot be composed of any State law that is inconsistent with any relevant Commonwealth law.

In other words, the single composite body, which the phrase borrowed in paragraph 56 of Rizeq refers to, is the body that is produced by, amongst other things, an understanding of, first, the limits of State legislative competence and, second, where it matters, the limits of Commonwealth legislative competence and, third, where there appears to be a sufficiency of either or both of them, whether there is any section 109 occasion for the rendering pro tanto inoperative of the State law.

We necessarily have to come to section 109 at the end of things in a manner which, with respect, will parallel quite closely on that issue, the way in which our friends for Victoria put it. But I am concentrating at the moment, paragraph 3 of our outline, on the understanding which Rizeq brings to the way in which section 79, relevantly, operates from the particular point of view of describing the class or category of State law – State statute – but could be a candidate to be picked up.

Your Honours appreciate that the text in particular, the word “binds” is that to which these passages are directed.  In Rizeq 262 CLR 24, it is significant in our understanding of your Honour’s reasons to start with paragraph 56, which of course contemplates that for laws which are rendered ineligible to be picked up by section 79 because of the character in question, then subject only to section 109 that one would expect that they will govern of their own effect “because they are laws”, including in the exercise of federal jurisdiction.

Now, it is at that point that we hope, frankly, to acknowledge that the force of the warning that the Commonwealth Solicitor expresses, namely, that it is not to be supposed that there is legislative competence in producing the single composite body of law in State Parliaments to alter the meaning of the words used by the Commonwealth Parliament.  We accept that stricture.  We do not accept, however, that that is either what we are trying to do or what the single composite body of law concerning parentage in situations of artificial conception would, of its very nature, produce.

Then, in paragraph 63 at page 26 of Rizeq, one has the figure of speech gap used and explained and it is, of course, the incapacity derived from the proper understanding of the Constitution and Chapter III whereby State Parliaments cannot govern the actual exercise of federal jurisdiction, a phrase which probably stands for the same concept as the notion of regulating or controlling.

Now, that has been expressed in a number of different ways to which if I may proceed by leaping from stone to stone, as it were – I hope the river does not wash me away.  Page 33, paragraph 83 is the next highlight in the textual analysis:

Quite what is encompassed within s 79’s description of State laws that are “binding” –

That is section 79’s word:

on a court is to some extent elucidated by the –

non‑inclusive list:

It would be wrong, however, to seek to delimit . . . by invoking the . . . distinction between “substance” and “procedure” –

So this is not laying down limits, but warning against wrong directions:

wrong to seek to delimit . . . by conceiving of a statute that is binding on a court –

that is section 79’s requisite concept:

as a statute which cannot also be binding on a person whose rights or obligations are to be determined by that court.

One question, with respect to your Honour’s exposition in that sentence ‑ which is, as I say, a negative, it is not to be sought to delimit ‑ one question is whether the same approach or reasoning is true for a statute which is also binding on an administrator who has to deal with a person’s claim, say, to a particular status and I will come back to that matter.

The quotation from Sir Owen Dixon in paragraph 83 is apposite to one form of what has been called a dual function law.  And it may be, of course, your Honours, that there may be multi‑functional, not just dual functional laws, from time to time.  What matters is that they are not laws the sole function of which is to govern, regulate or control the exercise of a jurisdiction by commands or prohibitions or permissions directed in terms to a court.

Now, the category or class that Sir Owen was referring to is those where the express words, that is, the enacted provisions, merely give jurisdiction or authority, and his Honour illustrates it indifferently whether it be judicial or administrative.  It is familiar, particularly in the admirably concise legislation of the 19th century, for a provision which is jurisdictional in the sense of creating an authority to decide also being construed as substantive in the sense that it gives rise to the right or obligation which may be granted or imposed by the body with jurisdiction, including a court.

There are other ways in which one may have dual or multi‑functional laws of this kind and, in our submission, a classic example is provided by laws which of course relate to status which are the laws before this Court in this case.  If status is to be other than a chameleon‑like quality, and mostly status is not like that, it will obtain or be available for the person enjoying it, or suffering it as the case may be, in whatever social, political, legal contexts it is relevant and parentage is just one of those, alienship is another, citizenship is another and so one would expect that those provisions will bind, if I may use a tendentious word, administrators, but also bind judges.

So that it is by a judicial decision that status is accorded to a person, to his or her detriment or advantage, it does not matter – then, in our submission, as a matter of ordinary English used in a legal manner, which is section 79, that law is of course binding on that court.

EDELMAN J:   How is that different from the use of status across the law, the status of whether a person is a director, or whether a person is a drug trafficker, or whether a person is a driver?

MR WALKER: Probably the best answer to that question that I can give is it is probably not very different at all. That is, I am urging that because a law concerns status, it does not render it, by reason of that quality, ineligible to be picked up by section 79. And that is because, in our submission, status is very much a matter which it is the business of courts to examine and determine when rights or obligations or penalties turn upon the possession of a status.

In our submission, the prescription of means by which, for example, the books or registers related to incorporation will identify those who have the status, say, of officer, is an example of a law that will regulate as much the proper procedure of an administrator as it will the fact‑finding and the legal decision of a court.

One of the questions that we understand that I have to deal with is whether there is reasoning in Rizeq that says of that kind of law, which bearing in mind it affects status, will certainly be at the forefront of the judicial determination about the matter, but will also be equally governing of an administrative determination of the matter and may, one hopes, be the subject matter of acceptance by private citizens whose relations intercede, may depend upon that status; that is, you do not need a lawyer or an administrator if the law is sufficiently plain as to status.

Now, the next passage I wanted to go to in the reasons in Rizeq, again for this purpose of suggesting Rizeq does not go that far, is at paragraph 90, which again picks up the now critical and central concept with a figure of speech of “gap”.  “Gap” is to be understood by your Honour’s use of the subheading “the area of incapacity of State law to affect the exercise of federal jurisdiction”.  The precision which is permitted by the analysis in Rizeq is as follows:

The purpose is fulfilled –

that is the purpose that your Honours have identified:

The purpose is fulfilled by aligning section 79’s description of State laws as “binding” ‑

that is the centrality of that word:

on courts with the gap in the law –

So, in order for section 79 to operate upon laws so as to render them binding on courts, one needs to align those candidate laws with the gap in, relevantly, the State legislative competence.

In our submission, that does give rise to the question calling for characterisation of whether a law is one which regulates how a court exercising federal jurisdiction is to determine a case – I will try and make that paraphrase good in a moment ‑ or whether it is a law which may operate subject to section 109, may operate of its own force including so as without section 79 to bind ‑ my word, not its ‑ to bind any court, State or federal, exercising federal jurisdiction. That being, of course, the possibility that paragraph 56 in Rizeq looked forward to as what might be called the non‑section 79, non‑section 109 status – I should not use that word – character of a State law as part of the composite body of law, everyone is bound by. 

Now, the way in which your Honours conclude in paragraph 90 is that the manner that I have just partially quoted is “how it”, that is section 79, should be read. In our submission, that does not amount to saying that laws which are directed to courts but also to other agencies as well, each because they are under the rule of law required properly to understand and accord questions of – and matters of status to people before them ‑ what paragraph 90 does not say is that those laws are by reason of that dual or multi‑function outside the possibility of being candidate laws for section 79.

That is because, in our submission, in that aspect of such a law which is directed to and which would purport in terms to dictate, govern, control, regulate how a court exercising federal jurisdiction were to proceed then, in our submission, there are only two logical possibilities. It can either do that of its own force in which case you are left only with a section 109 question or, if that is too much to swallow and, in our submission, the tradition including Rizeq, under section 79 suggests it will be too much to swallow, that is, once you characterise a law as dictating to a court exercising federal jurisdiction how it is to proceed to decide something then, in our submission, there is the gap. That is what section 79 in the interests of coherence will supply by the pick‑up.

EDELMAN J:   Are you submitting that at least the law here can have only one characterisation?

MR WALKER:   I may not have understood your Honour’s question properly.  In our submission, section 14 are laws that headmasters and bureaucrats should observe and so should courts, including those exercising federal jurisdiction.  Now, if that last bit ‑ ‑ ‑

EDELMAN J:   So it is characterised as both a direction to a court exercising federal jurisdiction as well as a general normal rule?

MR WALKER:   That is right.  Your Honours appreciate, I hope, that I am, if crab‑wise, coming towards the point:  what about irrebuttable presumptions and their more than passing resemblance to an out and out rule, to which I will be coming?

Your Honours appreciate that it would be an odd thing and probably not so much a matter of substance in most cases as a matter of form if the operation or not of section 79 depended upon whether provisions had multi‑function, rather than the sole function, of being addressed to courts exercising federal jurisdiction.

In our submission, it would be surprising if a rule of law, nation‑building, coherence‑promoting provision, like section 79, one of those quasi‑constitutional provisions by reason of its earliness, longevity and significance to Chapter III, it would be surprising if its operation turned on matters which could be seen then as pretty well drafting questions. That does not mean that sometimes drafting will not be mightily significant so as to produce radical differences according to a few words but, in our submission, as a preliminary observation, one would not expect something as significant as section 79 to turn on fashions in drafting.

The next paragraph I wanted to take your Honours to was of course to point out what my learned friends have already sufficiently expatiated on, namely, what is now to be understood as the relation between the “otherwise provides” within section 79 and the inconsistency governed by section 109.

That is paragraph 92 where I draw to attention in particular that what was once, if I may say so with respect, a vexed question is no longer vexed because settled in this paragraph within the field in which section 79 of the Judiciary Act operates, State laws have no valid application.  I interpolate that means that in the case of any such law which intractably suggests an ambition to do so it need only be observed that there is no competence to extend so far.

Of course, one appreciates that both at common law and under various statutory interpretation provisions common in this country that it will be quite a rare thing for a State Act to be interpreted as extending so far. But in such a case then it has, as your Honour has put it, no valid application. The conclusion is of course, therefore, section 109, for that reason, simply has no operation – that is, you do not have a clash.

Now, that does not mean of course that it is as simply put as, with great respect, my learned friend for the Commonwealth put it today. It is, I accept, an evocative and perhaps in some senses useful observation that the current state of jurisprudence rather suggests that, as my friend puts it, things have been inverted or turned on their head, and that the premise of section 79 in relation to selecting candidate laws is that, first, the law has to be rendered invalid.

Now, in our submission, that goes too far. It is, with respect, an interesting oratory but the invalidity that my friend is talking about is no more than the quote “have no valid application”, to be seen in paragraph 92. They are perfectly valid, so far as they go. Now, the question is, they going only in a State case to a State court, are they candidates to be picked up in the event of no provision otherwise by a Commonwealth law when federal jurisdiction is being exercised by any court, that is, under section 79?

In no real sense do they have to be invalid in any anterior stage of consideration of them for that pick up to occur.  But we do accept that they have to be the kind of law which cannot, by reason of the exclusive competence of the Commonwealth Parliament with respect to Chapter III, obviously be picked up unless they are the kind of law which cannot of their own force apply.

But what that involves logically, and we submit respectfully, by the time one reaches paragraph 92 this seems clear, if for that reason they are not picked up, they are not appropriate candidates to be picked up, then subject only to section 109, that is because they are applying of their own force as part of the single composite body of law and that is why, with respect, section 14 cannot simply be dismissed as not able to be picked up by section 79 because addressed to, amongst other things, headmasters – and that is the end of it.

In your Honour’s conclusion at paragraph 103 on page 41 of Rizeq is found some of the language, with great respect, the simplicity of which we urge supports the paraphrase I earlier expressed and I am quoting the middle sentence of 103:

A State law can determine neither the powers that a court has in the exercise of federal jurisdiction nor how –

and I lean on the word “how”:

or in what circumstances those powers are to be exercised.

I interpolate that the exercise of power by a court ultimately is a decision, rendering a decision.  That is, powers are not simply discretions; powers are the means by which the authority to decide is exercised – the authority to decide being the relevant meaning of the word “jurisdiction” in this area.  Then your Honours went on to say:

A State law cannot in that sense –

and, with respect, that plainly refers back to not being able to determine the powers, nor how and in what circumstances they are to be exercised:

“bind” a court in the exercise of federal jurisdiction, and that is the sense in which that word is used in s 79 of the Judiciary Act –

the word “binding”.  Conclusion:

The operation of s 79 is limited to making the text of the State laws of that nature –

So it goes back to laws which would, but for the lack of State power to do so, purport to bind concerning powers, or how or in what circumstances they are to be exercised.  It is:

limited to making the text of the State laws of that nature apply as Commonwealth law to bind a court in the exercise of federal jurisdiction.

While on that page could I drop down, noticing paragraph 104 on the way, to paragraph 105 – those two paragraphs convey what your Honours, with great respect, adduced as an instructive contrast, to illustrate the generalisation with which the conclusion section commenced in paragraph 103. When one sees of the Misuse of Drugs Act, which is an offence‑creating provision, that it:

is a law having application independently of anything done by a court.

Now, somewhat gingerly, if I may say so, that may need to be unpacked a bit because it would be disappointing to those who enact offence provisions that they are, as it were, nothing to do with what might happen in a court.  With respect, one can see how an offence provision might be described as having application independently of anything done by a court, because it is one of those givens that a court, in its duty, simply observes and applies.

But it is not the case, of course, that the Misuse of Drugs Act has nothing, at any point in its existence or operation, to do with what may happen in a court.  Offences, in our constitutional system, can be tried only in a court or something sufficiently like that to pass the requirements of Chapter III.  Then your Honours explained that two sentences further.  “It”, that is, the State offence provision:

applied in the trial . . . just as it applied to him before any court was called upon to exercise jurisdiction –

So in that sentence it is clear that it is applying in a court, but as your Honours put it there, in the same way as it applied when he was on the verge of contravening it.

Now, that, with respect, squarely raises the question in this case as to what is the status of provisions like section 14, not offence‑creating provisions, but provisions which accord status by reference to circumstances, all of which are preternaturally of their own nature inherently the kind of circumstances which, but for the provisions in question would have been grist to the evidentiary mill in working out status.  Status, in this case, is parent, the correlative status of child. 

Now, may I at that point take your Honours directly to section 14 of the Status of Children Act 1996(NSW) appearing as it does in Part 3 of that statute which commences with section 9 which is called “Establishing parentage”. I accept - how could I not - that parentage may be established in some cases and for some fortunate people, without any litigation, that is with no interposition of judicial authority. But if one is using the word “establish” in a slightly more technical sense, then there is not going to be authoritatively determined, established, otherwise than by judicial power.

So when one comes to presumptions, and if I may I will have to fillet this, I want to take presumption first before I come to rebuttability or its absence.  I know I have to put them together but first of all presumptions.  In this part of the Act which is concerned with establishing parentage which might happen in a court even if it does not have to, in our submission, we are talking about one of the means by which in or out of court, certainly in court, matters of onus or sufficiency of a specified circumstance to make out a required fact are provided for. 

The common law, both with respect to onus and with respect to evidence more generally, including the sufficiency of evidence to support inferences, has employed presumptions for so long that it can be seen as, at least in part, a term of art concerning the way in which a fact‑finding tribunal such as a court goes about its business of finding facts, how it is to exercise relevantly that judicial power. 

Now, I appreciate the 78B notice allows me to be very terse in my next observation by the by, as it were.  Obviously, there is a large area which, in relation to Chapter III, needs to be considered when one contemplates provisions which appear to dictate a judicial outcome.  I do not need to go down that area.  They are matters, often, where differences of degree become differences of kind. 

Suffice it to say that that very jurisprudence, the existence of that jurisprudence distinguishing between those which are permissible directions to a court how to proceed in, say, factual reasoning and laws which are impermissible as being illegitimate legislative prescriptions of that which only a court could determine – that only, in our submission, illustrates that there is a great familiarity and ease of understanding in a court of the concept of presumptions in terms of what a court does when finding facts or reaching conclusions which are mixed questions of fact and law. 

That language of presumption is found, obviously enough, in all of these provisions but particularly section 14(2) upon which we rely. There is no significance, in our submission, in the matter that has been drawn to your attention and relied upon, namely, that it is only in subsections (5) and (5A) that the notion explicitly of proceedings - which probably mean only court proceedings, but I am not sure – are referred to.

In our submission, what I have said about the nature of presumption, as a word used in this kind of statute, manifestly requires it to be understood as applying to how a court is to proceed whenever a court is seized by one of these questions of status and courts are very often the places in which questions of status are thrashed out if there is disagreement and after all only the courts can authoritatively determine them. 

Then I come to a problem for us which is subsection (4) – any presumption arising under subsections (1) to (3) – any presumption is irrebuttable.  I need to notice then the other kinds of presumptions.  You will see the irrebuttable presumption of a judicial determination during the affected person’s life – that is subsection (12)(1) – made irrebuttable by section 12(2), but the other presumptions, namely, in section 9, 10, 11, 13, are not irrebuttable.

Now, we then come to what might be called, I suppose, adjectival provisions, but they are part and parcel of a scheme that has to be read altogether and operates altogether, we accept, in this Division 1 of Part 3.  I am referring to sections 15, 16 and 17, first of all.  Proof on the balance of probabilities is, I accept, language which is redolent of fact finding but it is not so confined.  It is also a reference to the balance of persuasion appropriate to overall conclusions to which matters of fact, but some matters of law, may contribute.  Section 16 is curiously expressed by its use of the word “correct”, but in the collocation:

appears to the court to be more or most likely to be correct –

It suggests that this is an endeavour where perfection may not be available, and that the balance of persuasion subject to allocation of onus is the way in which a court will find something, that is conclude or decide something, and therefore the notion of “correct” surely embraces the notion of a presumption more appropriate as reflecting the state of affairs which, read purposively, the statute seems to be concerned with in determining matters of parentage.

Section 17 is also a challenge in terms of its drafting, but in our submission of a somewhat different kind.  I need to draw to attention, bearing in mind some of the arguments that your Honours will have read, and some that you have heard, that section 17 stipulates a mode of proceeding by a court, explicitly in subsection (1) and implicitly in subsection (2), in the case of two or more irrebuttable presumptions in conflict with each other.

I should interpolate that it is going to be a striking circumstance that produces that.  In terms of the conflict of irrebuttable presumptions, it would appear that subsection 12(1), which is irrebuttable partly because the judicial finding has not been altered, set aside or reversed, may conflict, say, with subsection 14(2) so that a court has, let me suppose, wrongly in light of 14(2), or wrongly because of a wrongly adduced or found fact concerning the source of sperm, been found to have been a parent under 12(1), notwithstanding the position obtaining under 14(2).

KIEFEL CJ:   Is that the only real likelihood that there could be two more irrebuttable presumptions arising and, if that is the case, the reason I ask is, is 17(1) to cover contingencies that a draftsperson cannot foresee? 

MR WALKER:   Beyond what I have just suggested, your Honour?  It may well be.  I have tried to ring the changes.  If I can very briefly replicate that, it is odd to imagine how 14(1)(a) would clash with 14(2) bearing in mind the factual position and, in fact ‑ ‑ ‑

KIEFEL CJ:   It is more likely simply addressed to 12(1) and whatever ‑ ‑ ‑

MR WALKER:   That is how I read it, because 14(1)(a) and 14(2) ‑ ‑ ‑

KIEFEL CJ:   ‑ ‑ ‑ can come into conflict with that.

MR WALKER:   ‑ ‑ ‑ are tailored so that they will not clash. 

KIEFEL CJ:   Yes. 

MR WALKER:   Husband, not a husband, and (1)(a) obviously will not clash with either 14(1) or 14(2).  I think that is obvious.  I hope my understanding of…..is right.  So, that the only one – the one I have come up with is the only one I have been able to come up with.  So, 17(1) is in grandly general terms but it may be that it applies only to one possibility. 

There again, for similar but not exactly the same reasons as I have said in relation to section 16, it is a little problematic to understand what it means to have a court – have one or other of them appear to the court as being “more or most likely to be correct”, and that is the one that prevails.  “Correct” literally suggests that there is a true state of affairs out there to which these imperfect or inexact legislated presumptions may or may not accord, one more closely than the other. 

It does not necessarily – that does not find a very satisfactory footing in the nature and purpose of these provisions because there probably is not some platonic essence of parenthood out there at all to compare.

KIEFEL CJ:   Does it indicate the limitation on the area of choice for the court that you are really just choosing between presumptions, you are not really engaging in a full fact‑finding exercise?

MR WALKER:   We do adopt that approach, yes.  We say that it really means the court faced with that position ‑ ‑ ‑ 

KIEFEL CJ:   Has only two choices. 

MR WALKER:   The only two choices is to make the choice that ‑ ‑ ‑

KIEFEL CJ:   These are the choices identified by the statute. 

MR WALKER:   I do not mean it disrespectfully, but the choice that is, it seems, purposefully understood more appropriate.  Accepting that perfection or, what is here called, “correctness” may be a will‑o’‑the‑wisp. 

Now, what those provisions, including 17 with its reference to the position of two conflicting irrebuttable presumptions, what 16 and 17 and of course 15 all do, is show an explicit contemplation that this is a resolution of a matter in dispute which is, of its very nature, either bound to be in a court or, at least, can be authoritively determined only by a court. 

In our submission, that rather indicates that it is the kind of provision which could be picked up so as to apply not only to the court, the State court that these provisions speak to and of and bind within State legislative competence, but by dint of section 79 as surrogate federal law to apply, text unchanged except so as to apply to a federal court and not just a State court so long as they are exercising federal jurisdiction. I confess that section 18 seems to be in yet another separate category all of its own. I do not rely upon it as yielding anything particular or extra.

NETTLE J:   Do you accept Mr Lloyd’s suggestion as to the meaning or purpose of it?

MR WALKER:   Yes, with great respect, it is persuasive, especially as it does not mean the presumptions fall out of a criminal proceeding, it is just allied with their rebuttability on the balance of probabilities they are not to be used by the party carrying an onus with standard beyond reasonable doubt.  I have nothing to say against that as a suggestion.  Regrettably, I cannot, however, tell you that any legislative history confirms that that is the case.

By whatever means or for whatever reason it came about, all that can be said is that section 18 rather ponderously ‑ by me that is ‑ obviously concerns what happens in a court – concerned only with what happens in or in relation to a court.  It is for those reasons that it really cannot be said that – as it was said by the appellant this morning ‑ that these are provisions ‑ section 14, are provisions which regulate status in general and not the exercise of power by courts.  That is a false dichotomy, we submit.  Yes, it does regulate status in general, including out of court.

EDELMAN J:   Can I just ask how that ultimate submission fits with the result in Rizeq given that section 6(1)(a) of the Misuse of Drugs Act (WA) which was the focus of the case in Rizeq is subject to a presumption in section 11?

MR WALKER:   Facetiously, one observes that section 11 is not the object of discussion in 105 in Rizeq.

EDELMAN J:   That is really just to say the decision is in per curiam then?

MR WALKER:   I am not going to say that, your Honour. Section 6 is an offence‑creating provision, section 14 is not. It would be drawing too long a bow to say no real difference conceptually between creating a crime and bestowing a status or denying a status. They are all simply one very generalised high level notion of a rule that brands somebody one way or the other. That, in our submission, is not an acceptable way of analysing provisions from the point of view of susceptibility or candidacy to be picked up by section 79.

It is the fact that section 6 regulates conduct which, one hopes, will never reach court because no one will commit the offence.  That is one way in which it is differentiated from the provisions, say, of section 14 which, on any view of it, are there to determine and indeed are only there to determine what might otherwise be a dispute, to regulate a difference of view concerning whether somebody is a child or a parent respectively.  That is how I explain what Justice Edelman calls the result of Rizeq as reconcilable with the way in which I have put the matter concerning section 14.  Rizeq does not concern provisions like section 14, is really what I am saying.  They are not like simply because they are State provisions.

So, your Honours, in conclusion with respect to Rizeq what we submit is that you do not find from those reasons the ineligibility of a State law to be picked up simply because it operates not only in courts to regulate how a court determines a matter or considers the evidence in the matter or finds a fact in the matter but also, as one might expect with respect to status questions, does so for administrators and others.

GAGELER J:   Mr Walker, are you departing from the Commonwealth’s submissions on this point?

MR WALKER:   On that point.  Not on that last point, no – I hope your Honour is not going to ask me to adopt all of theirs because I will not.

GAGELER J:   No, I just mean on the eligibility to be picked up points.  I am not sure I discern any real difference between you and the Solicitor‑General.

MR WALKER:   Again, I say this semi‑facetiously, of course I prefer the way I have put it so that, if there is any difference, I am putting it the way I have put it, but I say that with absolute unfeigned respect for my learned friend.  If he has a better way of putting it for that outcome, whichever way one gets there, of course these are capable of being picked up, we submit, because of the evident and direct manifest command they make to a court determining status.

That then brings us to another matter where there is the specific text to be considered for this case but there is also this overlay of general doctrinal matters and that is the “otherwise provides” component in section 79. So, what I am now arguing, which is 5 and 6 and following in our outline, is only of any use if these provisions were candidates to be picked up.

Now, it has been put to you by a number of my friends – in particular, for the Commonwealth – my words, not his – that care should be taken not to sever, completely or conceptually, section 79 “otherwise provides” from section 109 inconsistency. In terms of the coherence to which section 79 is as a matter of authority and principle directed, one can, as a matter of the policy of the law, see a great weight in that as the starting point of an argument.

On the other hand, it seems crystal clear, not only from Rizeq but from the unaltered authority of GPAO in light of Rizeq in this regard, that they are, of course, two distinct exercises being carried out under section 79 “otherwise provides” and under section 109 inconsistency. I do not need to belabour the point. It is, in a sense, elementary. There is an urgency, obviously, for either of those routes, to know what is the applicable law.

This cannot be left hazy or difficult to determine, hence the high premium value, in our submission, as a matter of jurisprudence in there being tests for “otherwise provides” under section 79 and inconsistency under section 109, which lend themselves to application without, in every case, needing to have it determined by this Court here.

With great respect, so the jurisprudence, properly understood, provides. They are not obscurantist tests at all and they do require a comparison of the two putative competing texts in a familiar way to see whether what one provides is inconsistent with what the other provides. Whether one is talking about legal operation for section 109 purposes or one just uses the words of the statute in section 79, it is still looking for an analysis, properly understood, of what each of the relevant laws provides.

It is here, in our submission, that there is the familiar danger that resort to a figure of speech like “covering the field” or, even a new figure of speech like “leaving no room for”, is in danger in any particular case of an argument that assumes its own conclusion.  Hence, the idea of the negative implication – that having expressed A, B, and C, there is no room for D, E and F – to which, with respect, the proper response ought to be, well, it depends, and it depends upon, obviously, the particular laws.  There cannot be general propositions, otherwise there would always be “otherwise” provision except in the trivial case that would never be argued where the texts are exactly the same – a case that does not arise.

So, it is against that background, as a matter of general principle, that one looks in the Family Law Act, not only in section 60H, but that is obviously important, for that which is said to provide the provision otherwise to subsection 14(2) and (4). The first thing to be said is that there is no text of a provision, say of the Commonwealth law, that a sperm donor is a parent by reason of being a father of a child born of the pregnancy thus produced.

It is in this context that it is worth emphasising the kind of provisions in the Family Law Act which turn upon the according or not of the status of “parent” and I am probably entitled as a parent to say it is not an unalloyed delight, there are burdens imposed as well, and that needs to be understood.

May I apologise for the fact that your Honours have gone to some of these already but, for these purposes, may I take you back in the Family Law Act please first to 65C.  My friend, Mr Lloyd, took you here I think.  It is important, as your Honours appreciate, to emphasise that you do not have to be a “parent” within the meaning of the Family Law Act, whatever that be, in order to apply for a parenting order – you may be a grandparent.

That moving back a generation raises interesting questions about just how loose or liberal the notion of parentage is in the statute.  Then under paragraph (c) of 65C, you can be:

any other person –

that is, other than parent, child or grandparent:

concerned with the care, welfare or development of the child.

That is the means by which, of course, the appellant is making application with respect to the younger of our client’s children.

NETTLE J:   What do you get out of that section other than to be able to say, “Well, even if he is not a parent, he will not necessarily miss out”?

MR WALKER:   I am not really – I mean, that is only of social import outside the Court.  What I get out of this is that there is absolutely no textual or purposive reason to expand “parent” in a way that some of the arguments have urged on you, particularly for the appellant, so as to include, for example, under the rubric of social or psychological, people:

concerned with the care, welfare or development of the child.

Let me use an example that your Honours have not heard, but which is very common, and has been common for presumably millennia – certainly centuries in our kind of society – and that is what I will call the informal fosterer, the family who welcome a child which is not born to the woman of the household, and is not biologically the child.  It may be because of bereavement et cetera.

Those are arrangements which do not always work and the notion that you are, while encouraging a little boy to call you “Mum”, the notion that you become a parent because of the social and psychological status but that five years later learning difficulties or your own sickness means that fostering just has to come to an end, query do you cease to be a parent, these are not the kind of questions which are the stuff of the definitions to which I am coming in the Family Law Act really are directed or are at all appropriate for.

In our submission, what this provision shows is that at the heart of the parens patriae equivalent jurisdiction of courts administering the Family Law Act is a notion that parents are only one of a group that may obtain parenting orders and there is therefore absolutely no purposive requirement either in the best interests of the child or an order that will reflect different forms of societal arrangement.  There is absolutely no purpose or point in stretching the definition of “parent” beyond that which the Act as a whole indicates is appropriate. 

So, for what it is worth, we would urge caution in a case ‑ not this case, we think – where it might become critical to ascertain whether or not what the United Kingdom Supreme Court, what Lady Hale referred to as a social or psychological parenthood - we would urge caution about saying that is simply in the Family Law Act because the word “parent” has been used.  We submit probably not so, particularly when one, as I will come to later, considers the way in which one may marshal so‑called presumption or actually just simply determine the question of status. 

One knows, for example, that for adoption it is all bright line.  One moment you are not a parent and then you are a parent and the relinquishing parent one moment is a parent and the next moment is not a parent.  Bright lines are, one would have thought, purposively appropriate, highly beneficial, with respect to parentage in a statute which, after all, provides a full measure of judicial solicitude for the best interests of a child through provisions like 65C(c).

So the informal fosterer, where the arrangement does not break down, is of course a person who will no doubt be to the forefront of an application for a parenting order if it becomes necessary.  It does not have to be a parent, even though, in truth, that woman may have been the only mum that little boy ever had, so to speak.  I mean that as a figure of speech.

BELL J:   Mr Walker, the Act in Part VII proceeds upon principles underlying its objects which include the statement that children have the right to know and to be cared for by both their parents regardless of the marital state of the parents.

MR WALKER:   Yes.

BELL J:   So accepting that the Act contemplates parenting orders by persons who do not answer the description of being parents, nonetheless it would seem that Part VII proceeds upon an assumption that there is significance to the identification of a child’s parents.

MR WALKER:   Unquestionably.

BELL J:   And the child has a right to know their parents, recognised, so it would seem, by this statutory scheme.

MR WALKER:   Unquestionably.  Your Honours all know the lineage of such provisions, not just in chancery but in the Convention.  I do not suggest they were original in the Convention.  No part of my argument seeks to diminish the importance of ascertainment, that is, determination of parentage; no part of my argument does that. 

What I am presently embarked upon is pointing out that it is not true that this is a statute which, as the latest emanation of chancery is concerned, and the international concern of the Convention, it is not true that one needs, as it were, to liberalise and to expand in some kind of dynamic fashion the notion of “parent” in order to serve the children’s best interests.  We do, as your Honours have seen.  We do say that the word “both” and the word “either”, which you find in the statute, indicate the duality which comes from sexual reproduction.  That is two gametes.  Is that a convenient time, your Honour?

KIEFEL CJ:   How much longer will you be, Mr Walker?  I just need an indication for the matter tomorrow.

MR WALKER:   I would hope no more than an hour.

KIEFEL CJ:   And in reply?  We will sit on for at least half an hour.

MR WALKER:   Thank you, your Honour. Could I then take your Honours, please, to ‑ your Honours have already seen and I have just been talking about it without specifying at 64C - I do not need to dwell on it. Section 65D(1) accords a particular significance to the status of parent because it picks up a presumption of equal shared parental responsibility in 61DA which is specific to parents, unlike the others who may be seeking parenting orders. The same thing is picked up and continued and subject to detailed specification in 65DAA.

Could I then take your Honours to Division 7 of Part VII which starts with 66A. This is child maintenance orders, one of the oldest involvements of courts in modern times in relation to the parentage of children and the consequences of that status. Section 66B(1) has as its principal object, ensuring that children:

receive a proper level of financial support from their parents –

which of course is quite distinct from people who have assumed in fact in relation to a child the kind of care and relation that one might have hoped in an intact family would have been supplied by a parent. 

KIEFEL CJ:   Do these references, Mr Walker, aid your essential submission which is that the Family Law Act otherwise provides only when section 60H creates parentage rights and duties that displace the rights and duties arising from section 14(2) and 14(4)?

MR WALKER:   That is right.  The context of the Act includes 60H.

KIEFEL CJ: That is really what I am asking you: to what extent does context really give much to section 60H, once we are getting into child maintenance provisions?

MR WALKER: I am really perhaps putting it the other way, that the statute as a whole, which includes all these provisions, is not one which in our submission suggests that given the way in which sperm donors are dealt with or potentially may be dealt with under section 60H does not provide any contextual support for the notion that a sperm donor is within the notion of “parents” found in 66B(1) or “parents” in 66C(1).

BELL J:   Does that rather depend on whether the sperm donor has the sort of involvement with the child evidenced by his name being included on the register attracting the presumption under 69R and is that not the crux of this issue?

MR WALKER:   Yes, but that is a very important matter in this case, absolutely.

BELL J:   It just seems to me, Mr Walker, making submissions about what might be taken to be the intent of 60H by reference to a class simply described as sperm donors may not really address the nuances in the Act.

MR WALKER:   Your Honour, I entirely accept that it is not possible to put any of these provisions, that is in groups, to cope with hypothesised cases or even this particular case and say that they necessarily satisfactorily answer all the questions that may be raised concerning the best interests of a child, for example.  However, this is a statute that employs bright lines in a number of different areas.

GORDON J:   Do you accept that parentage can be established by a number of means?  One has presumptions, one has acknowledgements, one has evidence, once has 69R presumptions that Justice Bell referred you to.  They are not mutually exclusive, are they?

MR WALKER:   No, no, they are not.  In many cases they will line up.  Many cases they will line up, not every case but many cases.

GORDON J:   I think that is what we are asking and that is what you have to address.  You cannot just take 60H on its own and stick it in a ‑ ‑ ‑

MR WALKER:   I have not taken 60H on its own, your Honours.  I have to come to it, but I am certainly not saying that it is either dehors context or that it does not provide context.  At the moment I am advancing an argument that it is part of the context, that is, these are specific provisions which address the cases, the cases because they are not a simplistic one, of artificial conception.  They were introduced by amending legislation that said that these were provisions that were to provide and to explain how the Act applied in cases of artificial conception.

GORDON J:   I think we are directing you to 6(e) in your outline, Mr Walker.

MR WALKER:   Yes.  If your Honours will forgive me I am coming to that very soon.  What we do submit about 60H is that it provides an understanding of the unlikelihood, the inappropriateness of a reading of “parent” in the provisions, some of which I have taken your Honours to, which will include a person who is a sperm donor.  I do stress we are not talking about cases that involve husbands because they are dealt with separately – someone who is not a husband, not a de facto partner, but is a sperm donor, that is, they have provided material by which an artificial conception, as the Act calls it, took place, producing a pregnancy from which a child was born to a woman.

Now, at that point, can I simply adopt, with respect, what has already been urged to your Honours concerning the spectre of a child with no parents.  In our submission, that does not follow, for the reasons that have already been sufficiently put and in any event we particularly urge the notion that the concept of a child being born as a result of a pregnancy to a woman is quite enough to answer even the most modest so‑called ordinary understanding of the word “parent” as used in this statute.  The same, however, we submit, I hope by more than mere assertion, is not true as a matter of ordinary English usage with respect to sperm donors.

KIEFEL CJ: Do you go so far as to say one should read section 60H as intending an exclusion?

MR WALKER:   We do not use the word “exclusion” but really the answer to your Honour’s question is yes.

KIEFEL CJ:   But if that were the case, that might be explicable because the biological father – biological parent is already understood under the ordinary meaning of the term.

MR WALKER:   That would be unusual for this reason – that would be odd.

KIEFEL CJ:   I mean, in the terminology of the Family Law Act, in when it speaks of one or two parents, knowing parents, all of these expressions tend to draw upon all of the ordinary meanings of the word “parent”.

MR WALKER:   Yes, although they are not all that straightforwardly set down.  I think one of the aspects of the argument against us in this respect is that there is a fluid fluidity to the concept of parentage.

KIEFEL CJ:   To take the other point that you made about section 65C, in terms of the kind of orders that the Court makes in the end it may simply be that if you have the biological connection to, strictly speaking, bring you within the definition, you may nevertheless not obtain a parenting order.

MR WALKER:   Absolutely.  That, I think, is not at all unknown.

KIEFEL CJ:   So the scheme of the Act leaves it very much to the court to determine by best interests questions, rather than by legalistic determinations of who qualifies as a parent.

MR WALKER:   Your Honours, there is nothing legalistic about needing to determine who is a parent. 

KIEFEL CJ:   The reason I use the term is that in the submissions, and I think your submissions, the term “legal parent” is used to distinguish other parents. 

MR WALKER:   That is because, say, under 66D, there is another kind of parent who is not a parent within the meaning of the Act, but as a matter of colloquial English, a step‑parent has to be dealt with.  But a step‑parent, one only has to think, would appear to satisfy what is put against us as a means of becoming a parent within the meaning of the Act, namely the social and psychological position. 

In our submission, 66D, with respect to a particular notion that is well understood, “my stepfather” ‑ the word “father” is used.  Now, I am not suggesting that “a stepfather” is an expression like “fake diamond”.  A fake diamond is not a diamond.  A stepfather is a stepfather.  However, in our submission, it is clear from 66D that a step‑parent is not within the meaning of “parent” which you see in 66C - C(1). 

KIEFEL CJ: My questions are probably taking you away from the point to which I was trying to get to, which is your propositions about section 60H.

MR WALKER:   Yes.  Now, your Honours, while on that notion of what the Chief Justice puts to me as realistic or coming from the notion of “legal parent” and approaching 60H, could I remind your Honours or draw to attention what I think you were shown this morning.  It was behind tab 7 in the book.  That is something which we can call cognate legislation – the Child Support (Assessment) Act 1989, which in section 5, the definition of “parent” tracks provisions which include 60H as it appears in the particular part of Part VII of the Family Law Act, to which I am going to come immediately. 

When I say “tracks”, it actually deals – it defines “parent” in specified context, that is, you see the repeated phrase when used in relation to.  It defines, not inclusively or by extension, but exhaustively the word is – means in each case, by reference to a status governed by relevantly 60H.  That is paragraph (b) of the definition of “parent”. 

Now, it is not the same statute, but it certainly indicates that with respect to obligations that can produce justiciable issues the parent, in those provisions, with respect to a child born because of the carrying out of an artificial conception procedure, that will always be true for a sperm donor case, means only a person who is the parent of the child under section 60H, leaving no room for what I might call a residual or parallel operation of a general definition of “parent” found elsewhere in the Family Law Act. 

Your Honours, that is of some significance, bearing in mind that the duty to which I have drawn attention in section 66C of the Family LawAct is, in all material respects, verbatim the same as the duty in section 3 of the Child Support (Assessment) Act.  So, they are certainly very closely cognate as to their subject matter. 

It is for those reasons, in our submission, that – read in the further context supplied by the Child Support (Assessment) Act – there is no merit, in our submission, in reading the word “parent” in the Family Law Act provisions such as those that provide a presumption of equality between parents will include simply – by dint of being a sperm donor – a person who is a person who has supplied the male gamete in an artificial conception procedure.

So, we come back to the provisions which are at the heart of the matter.  Your Honours have already been shown the way in which Part VII introduces itself – section 60A(c), says of the relevant provisions, at the heart of this argument, that they are:

provisions relevant to how this Act –

that means the whole of the Family Law Act, which uses the word “parent” in the way to which your attention has been drawn:

applies to certain children –

That is what these provisions do.  They are relevant to how this Act applies to certain children.  It would be, in our submission, surprising if that self‑description of the statute concealed the notion that – but in any event the general word “parent” will be quite enough – completely sufficient – for somebody who is within a case that is stipulated in Subdivision D.

So one then comes to Subdivision D, which starts with 60EA. There are some definitions and your Honours will see cases which presented what might be called “mischiefs to be met” are, one by one, dealt with. Section 60F is a variance on possibilities of adoption and remarriage. Section 60G stipulates further provisions in that regard and then one comes to section 60H, which, I stress, for the purposes of the statutory scheme by which maintenance may be among other ways enforced, has been enlisted in its definition provision.

Section 60H is described as applying to the case of children born as a result of artificial conception procedures. The Chief Justice asked me whether we construe this as exclusive. We construe this as being the provisions which, in context, govern how a person, not a birth mother – I stress, not a birth mother; it may be a parent or may be a child of a parent, depending on which person you are considering – when the child has been born as a result of pregnancy brought about by an artificial conception procedure.

That is what, in our submission – that is what these provisions look like on their face. We say, particularly bearing in mind the potential never realised in subsection (3), my friend for Victoria pointed out there are no laws with respect to sperm donors that would be able to be picked up under subsection (3). That is just a matter of history of course and politics. Given that unrealised potential in subsection (3) these are provisions which, in our submission, are apt to say, subject to section 79 or, alternatively, without section 79, it does not matter which at the moment, these are the ways in which parentage results for somebody other than a birth mother.

NETTLE J:   You exclude “not a birth mother” because it goes without saying as a matter of ordinary English that a birth mother is a mother and, therefore, a parent?

MR WALKER:   Yes, and also because it is unthinkable that Parliament ever had in mind the notion of rendering somebody parentless at birth.

NETTLE J: But plainly thinkable that in section 60H the Parliament would provide unexclusively because it would rely upon the ordinary English conception of “parent”?

MR WALKER:   Not unexclusive - this has nothing to do with the role of the birth mother.  This is about somebody who is born to a woman – that is the English for “has a mother” - born to a woman by reason of a pregnancy produced by artificial means.

NETTLE J:   But it does not provide as it stands for the birth mother of the subject child to be its parent.

MR WALKER:   There are two answers.  No, by and large, which is why I put in the proposition I did that your Honour has noticed.  However, I need to point out that there is the provision that contemplates the birth mother who was not the biological mother.  But you will find that is referred to in 60H(1)(c).

NETTLE J:   Yes, you took us there before, I understand.

MR WALKER:   Yes. 

NETTLE J:   But concentrating on 60H, we are left in the position that as it stands it does not provide for the natural ‑ ‑ ‑

MR WALKER:   That is right.

NETTLE J:   ‑ ‑ ‑ biological mother of the subject child to be its parent.

MR WALKER:   That is right, and that does not mean that she is not a parent because, with respect, the woman to whom a baby is born is at the very ‑ ‑ ‑

NETTLE J:   It goes without saying, that she is his mother.

MR WALKER:   It is at the very core of the English word “mother”, and thus “parent”.

NETTLE J:   Well, if you accept that Parliament has, as it were, enacted this provision upon the basis that beyond its express terms the ordinary English conception of “parent” would apply, why should it be excluded in the case of a man?

MR WALKER:   Well, because 60H exhibits a concern to regulate the circumstances in which such a man will or will not be a parent.

NETTLE J:   And women - and women, too – both.

MR WALKER:   Well, no.  Your Honour is talking about a class of case which will include what are sometimes called anonymous sperm donors, people whose gametes are chosen, as it were, by catalogue.  Not this case, of course.

NETTLE J:   No, not this case.

MR WALKER:   A universe away from this case.  But still, what matters in this case, relatively for this argument, is that the connection comes from the provision of the male gamete – an artificial procedure.

NETTLE J:   That is what was put to you before by Justice Bell.  It is more nuanced than that.  If it is a matter of ordinary English acceptation then whilst on the one hand one might readily exclude a university student who is a donor to a sperm bank for a few bob, or as on the other hand, if the conditions were as they are found to be in this case, the position would be considerably different.

MR WALKER:   There is no doubt that in social terms, human terms, those positions are very considerably different.  I cannot possibly argue to the contrary of that.  I accept that.  The question is what does this statute say about the parentage – or the parenthood I should say, of somebody in the appellant’s position compared with someone in the university student’s position, which your Honour has just posited. 

BELL J:   This statute does not, as I read subsection (2), deal with the – accept that any child born of a woman would necessarily be a parent.  That is why subsection (2) is there, is it not, to deal with the situation of the woman who gives birth to a child – the child not being her biological child. 

MR WALKER:   Yes.  That is the case to which subsection (2) is looking. 

BELL J:   So, what 60H is dealing with are a series of particular circumstances which modern life and technology throw up.

MR WALKER:   Yes. 

BELL J:   One is dealing with the situation in which a couple seek the assistance of a sperm donor in order that they, the couple, can have a child.

MR WALKER:   That is subsection (1). 

BELL J:   Subsection (2) deals with the case of a woman who has – who gives birth to a child ‑ she having some difficulty with her own ovum she uses the ova of another woman ‑ ‑ ‑ 

MR WALKER:   Yes. 

BELL J:   It deals with that. 

MR WALKER:   Yes. 

BELL J:   Subsection (3) picks up the same issue in a sense as (1) ‑ ‑ ‑

MR WALKER:   I am so sorry, I do not mean – there is a difference between subsection (1) which has its own direct operation – 60H(1)(b)(i) - without picking up any prescribed law ‑ ‑ ‑

BELL J:   And without picking up. 

MR WALKER:   Subsection (2) requires a prescribed law, and there is one, to do what your Honour says.   

BELL J:   Indeed, and then subsection (3) really works with subsection (1).  It is dealing with the circumstance, is it not, where under a law of a Commonwealth State or Territory the child is the child of the man although not biologically so.

MR WALKER:   Yes.

BELL J:   So one might see that having a certain interrelationship with subsection (1).

MR WALKER:   Although subsection (1), the husband or de facto partner is the other intended parent.

BELL J:   Yes.

MR WALKER:   And their case is stipulated by subsection (1) – that is, subsection (3) is not dealing with their case.  Subsection (3) ‑ ‑ ‑

BELL J:   The matter that I am seeking to raise with you is that one can understand this scheme as making provision in circumstances, among others, for clarity in the case in which it is not intended that an anonymous donor of sperm becomes the child’s parent, but it says nothing to circumstances falling outside the particular categories in (1), (2) or (3).

MR WALKER:   That is the question as to whether there is, as it were, meaning in the silence.

GORDON J:   No, it is what I asked you before, Mr Walker, and that is this.  There are other mechanisms for identifying and determining parentage under this Act.

MR WALKER:   Yes.

GORDON J:  Justice Bell just put to you section 60H deals with some circumstances.

MR WALKER:   Yes.

GORDON J:   But it does not deal with them all.

MR WALKER:   No, no.

GORDON J:  And here you have in this situation at least arguably a set of facts that fall outside of section 60H. The findings of fact here are of a man who has provided biological material, who entered into the arrangement intending to be a parent who has played a social role in the role of the elder child. Now, they are all facts and matters of circumstances giving rise to the way in which to parent outside of section 60H.

MR WALKER: Well, your Honour, 60H does not concern itself, in the cases that it does stipulate, with what I am going to call social or psychological parentage. That is the first thing. One does not find, for the reasons I tried to adumbrate earlier – one does not find social or psychological parentage, in the same way as the Citizenship Act may have called it up, being used in, for example, the standing or the presumption of equality, or the maintenance obligation which applies to parents in the Family Law Act.  There is simply no reference to it.

Now, I accept the argument against me is you do not need to have specific reference to it because the denotation of the word “parent”, while the statute may remain unaltered in its word, will alter with different societal conditions.  My submission is, well, that may be true in general terms about an expression like “parent” and one may understand why, for the utterly different purposes of citizenship and connection, there may have been the result taken in the Full Court to which your attention has been drawn. 

But in our submission, this is a statute which specifically considers one of those societal shifts, which is artificial conception procedures, and makes provision for how this Act is to apply, that is what it says it is doing, to that case.  I accept that it does not cover all the possibilities that one might imagine.  The most obvious one it does not cover is someone who has what the authorities call “social psychological” parenthood.

There is no reference to that, you will not find a reference to that anywhere, and rather the extended standing given to people concerned with care et cetera of a child to seek a parenting order rather suggests that that is the means by which those societal shifts and those individual circumstances that may be more or less poignant depending on the facts will be accommodated in the best interests of the child, not by an expansion of the concept of what a parent means as a matter of ordinary English.

Now, I appreciate I have got to deal with the proposition that there is a view that you have seen referred to in argument that all you need is, as it were, biological connection.

GORDON J:   That is not what the primary judge ‑ the primary judge took it further than that.

MR WALKER:   I appreciate that. I am not suggesting anyone is saying that and, with respect, we adopt what my learned friend, Ms Doyle, says about the inadequacy of that to describe the true state of affairs. But, in our submission, this is a statute that by 60H appearing in that part of the division that it appears in with the description of its function, these are the ways by which subject to what section 79 may pick up ‑ and we know that picking up is not alien to 60H because it does it itself or has the potential itself to do that ‑ subject to section 79 pick‑up, 60H is where you find these matters prescribed.

Now, I fear that I am probably repeating myself without adding to the argument when I say – and available ‑ we urge the preferable view of 60H is that it is not surplusage because there is the general word “parent” that can still operate, neither is it something which appears to prescribe but, in fact, does not because of a general provision in the meaning of “parent”, it is the specific, to go to that kind of interpretation, by which the general does not derogate ‑ ‑ ‑

GORDON J:   Is that why you say none of the presumptions in the balance of Part VII apply?

MR WALKER:   Yes.

GORDON J:   Is that where you go?

MR WALKER:   Yes, it is.

KIEFEL CJ:   We will sit on until five, and then adjourn until 9.45 am tomorrow.

MR WALKER: May it please the Court. Now, we have drawn to attention in 6(c) of our outline – I do not need to take your Honours to it, the material is set out in our written submissions – to the legislative history by which, in our submission, it can be seen that the birth of children following artificial conception procedures was perceived as a matter that ought to be the subject of specific legislative intention. We submit that is what resulted in section 60H.

Now, obviously we tread a fine line because that can produce the view, “Well, it is 60H that does it,” and leaving no room to adopt language, leaving no room for a section 79 pick‑up. And our answer to that, given the time I will try to abbreviate it, we have written it, but our answer to that is as your Honours would expect, namely, that the operation of section 79 is a given for a Parliament that is enacting provisions such as 60H.

No one, significantly, has argued for anything in the nature of an implied repeal pro tanto of section 79 itself by section 60H. So we may take it ‑ very important for the Judiciary Act ‑ that we take it that the operation which is automatic and which may happen without Commonwealth Parliament being aware so to speak because it always speaks, and it looks forward to future State legislation ‑ the operation of section 79 is contemplated by those who enact provisions, including 60H, and so one then looks for, what I will call, “substantive impairment or detraction”.

For the reasons that we have written, nothing in section 14 cuts across any of the provision made – provision made – by section 60H. The closest the argument can approach to that possibility is to posit something that has never happened and on the state of the statute books around the country, will not happen very soon, if at all – namely, the pick‑up under subsection (3) of a law of a State which says, of a sperm donor, that he is the parent of the child born as a result.

So, subsection (3), the proscription that has never happened, the law that does not exist, they do not amount to “provision otherwise”.  “Provision otherwise” talks about the setting of a norm, or a rule, or a proscription of a status, such as is apt to bind a court having that as one of the issues to be determined.  There is nothing in 60H, itself, which cuts across, or is cut across by, anything in subsection 14(2) or its companion, subsection 14(4).

GAGELER J:   Mr Walker, I am sorry, what is the relationship between 60H and 69R? 

MR WALKER:   It is, at first, to be seen as an example of a specific provision and a general provision.  Now, that is not straightforward, I accept, because one is about the presumption from registration – entry in a public register, and the other is dealing with outcomes – the obvious one, to answer Justice Gageler’s question to use as a test is 60H(1)(d) which stipulates that the person who provided genetic material other than the woman and the other intended parent, the child is not the child of that person. 

So, we contest the relation of 60H and 69R by positing that contrary to 60H(1)(d) someone has been ‑ and it could happen by any number of circumstances including an overbearing bureaucrat ‑ someone has been entered on a register under 69R.  Now, in our submission, 69R deals with all means by which somebody may believe themselves to be, or be reputed to be or claim to be, a parent.  So it covers the generality of all cases.  The register is not of artificial conception births, it is of all births. 

So my first answer to Justice Gageler’s question is, reading the statute as a whole, 60H does not, as it were, cease to operate upon a contrary entry in a register.  To put it another way, the operation of 60H, which is a matter of law, requires to be fitted within the notion of rebuttal to which, of course, section 69R is susceptible.  Otherwise, in our submission, you have a frank contradiction on the face of the statute.

Now, the superior way, in our submission, is to see 60H as a special provision and if 60H(1)(d) has operated in a case, that is not this case because of the finding of when the de-facto relationship commenced, but in a case where 60H(1) applied then, in our submission, it is unthinkable that that very clear, bright line stipulation, which has evident beneficial intention on the part of the Parliament, would not operate because of what is in a register, 69R.

It has to be said that these are not provisions which flow in an obviously well‑carpeted, single, schematic way.  But they can, by the means I have just proposed, be made to operate together in a way that is coherent, rather than contradictory.

BELL J:   One can see in that circumstance that the presumption in 69R would be rebutted.

MR WALKER:   That is what I am suggesting.  That is one way of doing it, yes.

BELL J:   But that is in the particular circumstance of 60H(1)(d).

MR WALKER:   Quite.  I was using that as a test for the matter that Justice Gageler asked me about.  I am not saying that is this case.  That is not this case.

BELL J:   How does this Act deal with, on your analysis, a man and a woman who choose to have a child and, for whatever reason – perhaps following a disabling accident or something of the like – the means by which a man and a woman who share a relationship have a child by artificial insemination?  Does the Act deal with that?  It seems to me that subsection (1) is contemplating the genetic material being provided by a third party.

MR WALKER:   Well, it embraces that case by 60H(1)(b)(i) talking about “and any other person who provided genetic material”.  That is not the only case to which it applies.  So the case that your Honour – quadriplegia is an example, I suppose.

BELL J:   Yes.

MR WALKER:   Coupled with what I have just said and the expression “whether or not the child is biologically”, it covers all the possibilities of whose gametes are being used.  But it certainly – 60H(1) certainly encompasses that.

BELL J:   Does one need 60H(1) in that circumstance?

MR WALKER:  Your Honour is asking me whether, in the absence of section 60H(1), what I am going to call common sense and charity, and social changes and appreciation of scientific changes, procedures that may not have been possible beforehand, whether or not it is readily appreciable that such a couple would have been regarded without demur as the parents of the child and I am bound to say I would hope so. But that is a political or social statement and the law is putting these things beyond doubt because of the beneficial purpose of having clarity.

BELL J:   That is if 60H operates as you say.

MR WALKER:   Yes.  It certainly does operate in that case because you do not need to have another person.  It is any other person.  There may not be one.  The key to the operation here is the carrying out of an artificial conception procedure.  Things have moved on socially.  There was a time when there were many people who had grave doubts, moral or religious, about the whole process, your Honours will recall.

Your Honours will have seen – I do not need to elaborate it – in 6(f) of our outline the possibility of section 79 picking up section 14 is certainly not displaced or prevented by provision otherwise with respect to any of the other presumptions which are dealing with what I am going to call discrete possible sets of circumstances.

Both statutes follow the pattern of providing for what I am going to call kinds of cases, and then stipulating for certain legal outcomes.  It is not in the nature of things that the stipulation in category A of an outcome will, in and of itself, be a provision otherwise with respect to State provisions that deal with quite another category B altogether.

Nothing has been shown concerning what I am going to call the substantive operation, that is the provision with respect to parentage, parenthood, of any of those presumptions clashing with what we seek under section 14.  I have sufficiently dealt with what I note in 6(g) of our outline.  Then, in our submission, and in a way that means I can finish now ‑ ‑ ‑

KIEFEL CJ:   If you would like to leave the balance of your submissions for the morning, that would be convenient, Mr Walker.

MR WALKER:   Thank you, your Honour.

KIEFEL CJ:   If you have a little way to go.

MR WALKER:   Not very long, but I will do that in the morning.

KIEFEL CJ:   The Court will then adjourn to 9.30 am tomorrow for pronouncement of orders, and otherwise until 9.45 am.

AT 4.59 PM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY, 17 APRIL 2019