MIMIA v B

[2003] HCATrans 381

[2003] HCATrans 381

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A246 of 2003

B e t w e e n -

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Appellant

and

‘B’ (INFANTS)

First Respondents

‘B’ (INTERVENER)

Second Respondent

GLEESON CJ
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 1 OCTOBER 2003, AT 10.22 AM

(Continued from 30/9/03)

Copyright in the High Court of Australia

__________________

GLEESON CJ:   Yes, Mr Jackson.

MR JACKSON:   Your Honours, may I move now to the question whether the ambit of the jurisdiction otherwise conferred by the Family Law Act is reduced by the operation of Subdivision F.  May I take your Honours to Subdivision F, Part VII.  Your Honours, the argument on behalf of the Commonwealth appears to be that in its operation in South Australia section 69ZH defines the ambit of the Act as it applies to children of a marriage and section 69ZE defines the position as it applies to exnuptial children.  Your Honours, that may understate the position slightly in relation to the latter, but may I come to that in just a moment.

If one goes to the position, first of all, dealing with section 69ZE, your Honours will see that the referring laws to which the provision refers have referred matters only to the extent those matters are not otherwise within the ambit of Commonwealth power.  Your Honours, that appears from the terms, for example, of the Commonwealth Powers(Family Law) Act 1986 (SA), which your Honours will see attached to our learned friend’s submissions. It is the last document behind tab A.

Your Honours will see from section 3(1) those matters to the extent to which they are not otherwise included in the legislative powers of the Parliament of the Commonwealth are referred to the Parliament of the Commonwealth.  So, your Honours, the position would then be that the fullest ambit extracts from the reference the fullest ambit of the Commonwealth power and it is matters that do not fall within that that are the subject of it. 

Your Honours, that would seem to have the effect that in the extended application, or the application extended by section 69ZE, the position would be that Part VII would have no application to other than, first of all, exnuptial children, and there may be some children of a marriage, or children who have been children of a

marriage, to whom it would apply.  By that I refer to children both of whose parents are dead.  It is possible, your Honour, that there are one or two other classes, but those would seem to be the two possible classes of children.

Your Honours, that is the first aspect.  The second thing is this.  If one goes then to section 69ZH, the starting point is that it does say in subsection (1) that:

Without prejudice to its effect apart from this section, this Part –

namely Part VII –

also has effect as provided by this section.

There are two possible views of section 69ZH. One is that it is possible that the effect of 69ZH(2) is to exhaust the marriage power and also relevantly the power conferred by section 51(xxii). When I say exhaust, I mean utilise to the fullest. The other view is that it does not. I will come to an attempted resolution of the two in a moment, your Honours, but what we would say is that the better view is that section 69ZH does not exhaust the marriage power and what one has is a situation where pursuant to section 67ZC there is an exercise of the marriage power to the fullest.

GUMMOW J:   What is the point of, as it were, then having a section which contracts it if the contraction is not the only statement that is being made about the marriage?

MR JACKSON:   Well, your Honour, it is just this.  One has a possibility that a narrower view might be taken of the marriage power and one would not be surprised to see hints of that appearing from time to time, and if it were that the marriage power was to be given some operation which was narrower than the terms of that contemplated by 67ZC, then 69ZH does seem to put it on a relatively narrow basis which pretty plainly would fall within any likely view or possible view on the ambit of the marriage power.  So, your Honour, the point we would seek to make is that section 69ZH does not seem to exhaust the marriage power but certainly is within it.

When one comes to section 69ZC, it is a provision which is utilising it to its fullest.  I keep saying 69ZC, I meant 67ZC.  I apologise, your Honours.  Even if one goes to section 69ZH, one looks to see its effect in the particular case.  Could I come then to its words, your Honours.  What it provides in subsection (2) is that the various provisions referred to have the effect:

that they would have if:

(a) each reference to a child were . . . confined to a child of a marriage; and

(b) each reference to the parents of the child were . . . confined to the parties to the marriage.

Now, your Honours, if one applies that to section 67ZC(1), it simply means that the words of section 67ZC(1) are to be read as saying that the children there referred to are children of a marriage.  It does not say more than that.  Then if one goes to section 69ZH(3)(a), the suggested limited effect, it says:

so far as they make provision with respect to the parental responsibility of the parties to a marriage for a child of the marriage, including (but not being limited to):

(a)  the duties, powers, responsibilities and authority of those parties in relation to:

. . . 

(ii)  the residence of the child, contact . . . and other aspects of the care, welfare and development of the child –

Your Honours will see, if one looks at the terms that are contemplated by the provision, it refers to aspects of the “care, welfare and development of the child” and one sees also that “parental responsibility” is a term which itself is defined – perhaps I should say one thing before getting to that.

Your Honours will see that the words used in the opening part of section 69ZH(3), “so far as they make provision with respect to” a provision which is not a particularly narrow expression, of course.  Then one goes to “parental responsibility”, a term defined by section 61B and it is defined to mean:

all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.

Now, your Honours, that is a relatively widely expressed provision.  It would prima facie, in our submission, fall within the concepts referred to in the passages to which I took the Court earlier from Cormick v Cormick and V v V, the references relevantly being 156 CLR at 175 to 176 in Cormick, and the same volume at pages 232 to 233 in V v V.  We would submit that in any event the opening words of section 69ZH(1) should be given, therefore, meaning without prejudice to its effect apart from this section.

GUMMOW J:   Just looking at 61B, would that include the capacity of a parent to obtain habeas corpus against a third party who was wrongly restraining the child, for example, a grandparent who had abducted it or whatever?

MR JACKSON:   Your Honour, simply as it appears there, the answer is yes.  One would think that would be a power in relation to a child.  It depends in a sense on, I suppose, what is contemplated by the ambit of the word “powers”.

GUMMOW J:   Yes, and authority.

MR JACKSON:   Your Honour, it seemed obvious enough that the combination of words “all the duties, powers, responsibilities and authority” is intended to be a large expression.  Your Honour, what is left really to the general law is what they are because of the use of the expression “by law” in that provision.

GUMMOW J:   The reason why I mention that is there is a decision of Justice Helsham in a case called Clarke v McInnes [1978] 1 NSWLR 598 which took the view that given the depth of the definition of “matrimonial cause” as it then was the habeas corpus jurisdiction of the State courts was supplanted.

MR JACKSON:   I did not catch the year, your Honour.  Was that by virtue of the ‑ ‑ ‑

GUMMOW J:   Of the definition of “matrimonial cause” and the exclusive conferral of jurisdiction ‑ ‑ ‑

MR JACKSON:   In the Family Law Act, yes.

GUMMOW J:   ‑ ‑ ‑ in the Family Court.  The Equity Court could not issue habeas corpus in aid of the recapture of a child from the custody of a third party.

MR JACKSON:   Your Honour, the issue is somewhat complicated, if I may say so with respect, by the fact that when one is dealing with circumstances where the authority pursuant to which the child is detained is by virtue of a Commonwealth statute ‑ ‑ ‑

GUMMOW J:   That may be a different question.

MR JACKSON:   Yes.  Your Honour, that gives rise to a question whether in the jurisdiction of the Family Court by virtue of the associated jurisdiction provision – that is, I think, section 33 ‑ ‑ ‑

GUMMOW J:   Yes.

MR JACKSON:   ‑ ‑ ‑ that is something which the Family Court has had jurisdiction conferred on it in any event, because the opening words of section 33 seem to contemplate that in any matter which is associated with a matter otherwise within the jurisdiction of the court then ‑ ‑ ‑

GUMMOW J:   Being a federal jurisdiction though.

MR JACKSON:   Yes, your Honour.  That is I think Adam P. Brown.

GLEESON CJ:   Mr Jackson, your argument, as I understand it, is that the scope of 69ZH(2) and (3) is narrower than the scope of 67ZC.

MR JACKSON:   Yes.

GLEESON CJ:   What would be the legislative purpose being served by a statement that without prejudice to its wider effect it has a narrower effect?

MR JACKSON:   The purpose would be this, your Honour.  One sees section 67ZC expressed in very broad terms.  It may be that one of two things could happen.  One would be that a relatively narrower view of the ambit of section 67ZC could be taken than has been taken in relation to the power in the past.  Another thing that might occur is that if that happened, a view might be taken that it was not possible to read down section 67ZC, so that the situation would be that section 67ZC did not exist.

Your Honours, what section 69ZH(1) is trying to do or was seeking to do, in our submission, is to say the presence of section 69ZH is not to be taken as itself as a matter of construction of the Act reducing the ambit of section 67ZC.  This is an additional operation which it has and which would exist, whatever might be the fate or the operation of section 67ZC.  It is no different in the end, in our submission, from the various provisions that have been in the Trade Practices Act and the Workplace Relations Act that the Court dealt with in the maritime case recently; it is simply giving another operation to the Act.

GUMMOW J:   The Solicitor‑General said this was not a provision like the Trade Practices Act provision.  I am not sure why.

MR JACKSON:   Your Honour, that is a submission that is made but it is difficult, with respect, to see why.  It is clear of course that in Subdivision F what is seeking to be done by the Parliament is to say these are particular operations which the Act has.  When one sees a provision in relation to – and they are different, of course, they operate differently.  For example, they call on different powers, but when one sees in relation to one of them, namely, section 69ZH, that it commences with pretty emphatic words and it is difficult, with respect, your Honours, to see really what could be more emphatic than the opening words of section 69ZH(1), it is difficult to see, with respect, why it should be treated as governing a provision where its opening words say it is not to.

GLEESON CJ:   In its application to the facts of the present case, in what respect does 69ZH(2) and (3) fail to exercise the marriage power to the full?

MR JACKSON:   Your Honour, looking, for example, at section 69ZH(3)(a), if one is speaking about parental responsibility, it is possible that introducing the concept of parental responsibility of the parties to a marriage for the child of the marriage might be somewhat more limited than the ambit of the power.  In the present case it probably is not but it is possible that it may be, your Honour.  One sees really in the submissions ‑ ‑ ‑

GUMMOW J:   Why, because of limiting it to inter partes dispute?

MR JACKSON:   Yes, your Honour.  I do not suggest that it is, but our learned friend’s argument moved rather quickly through this provision, if I may say so with respect, and said that of course it is more limited than 69ZC.  We would take issue with that but if it is, then it does not matter relevantly.

GLEESON CJ:   Does that mean that relevantly to the present case the exercise of the marriage power in 69ZH is not different in extent to the exercise of the marriage power in section 67ZC?

MR JACKSON:   Yes.  Your Honour, I would put it slightly differently, with respect.  In saying that, the powers that the Family Court is being asked to exercise are powers which fall within both those provisions, fall within the jurisdiction conferred by each of those provisions.

HAYNE J:   Just apropos of this point of the significance of parties in ZH(3), when one goes back to 69C(2), “Who may institute proceedings”, I think I am right in saying that (2)(c) or (2)(d) would in terms apply to an application under 67ZC and a limitation that might be understood out of (2) and (3) is that, regardless of whether it is a grandparent who institutes the proceeding or another person of the kind described, the provision under ZH(3) is to concern the duties of parents in relation to various matters; but is that right?

MR JACKSON:   Well, your Honour, I accept that is a possible view of the provision and if that is so, then the position would be that 67ZC would be wider than ZH.  However, although one sees the reference to parental responsibility, there are two things about it.  One is that “parental responsibility” is widely defined; I took your Honours to the provision earlier.

HAYNE J:   Just so, but it is the “duties, powers, responsibilities and authority” of those parties.

MR JACKSON:   Yes, your Honour, but may I say the second thing.  The second thing is that what 69ZH(3) says is:

so far as they make provision with respect to the parental responsibility –

and so, it is not quite saying the words, “for the responsibility of each parent”; it is “with respect to the parental responsibility”, a defined term.

GUMMOW J:   Now, 69C tells you who is to institute, but there is no attempted description of those parties against whom a proceeding may be instituted.

MR JACKSON:   No, your Honour, that is because, I suppose, one sees a large number of possible situations arising ‑ ‑ ‑

GUMMOW J:   Well, Dowal v Murray would be one of them.

MR JACKSON:   Yes, your Honour, and of course one would think that the persons against whom they should be instituted would be persons who have some interest in resisting the order that would be sought to be made.  That is what I would say in response to that.

Your Honours, may I come then to the question whether the prima facie powers of the Family Court have been ousted either in a sense by any other provisions of the Family Law Act on the one hand, which I can deal with very briefly, but by the Migration Act on the other.  Your Honours, could I say first of all in the three decisions to which reference was made yesterday by our learned friends – I will come to them in just a moment – this Court has indicated that it will take two things really.  One is that it will take clear words to oust, if I could use that expression, the jurisdiction of a court in cases of this general nature.  The second thing is that the Court has recognised that the two regimes under two statutes, for example, of the same jurisdiction may coexist.

Now, your Honours, the first of them is Minister for the Interior v Neyens (1964) 113 CLR 411. It was held there that the jurisdiction of the Supreme Court of the Australian Capital Territory was taken away by the committal of a child to the care of the Minister. That was so for two reasons, to put it shortly: one, because of the very clear terms of the Child Welfare Ordinance, which your Honours will see set out in the footnote at page 413 section 19(1), and the other was because of what the Court regarded as the all‑embracing, as it were, scheme of the Act. Could I refer particularly, your Honours, to page 419, Chief Justice Barwick at about point 7 on the page, the sentence commencing “The crucial question”.

Now, your Honours, a different conclusion was reached in Carseldine v Director of Department of Children’s Services (1975) 133 CLR 345, the different result being arrived at because of the fact that the Act did not indicate sufficiently strongly that the Court’s jurisdiction was removed. Now, the principal reasons were those of Justice Mason, Chief Justice Barwick and Justice Stephen agreeing, and could I take your Honours to page 362. There is a passage, to which I think your Honours have already been referred, at the bottom of page 362 about point 8 going through to 363 about point 2 on the page, the reference to the previous case. At page 364 Justice Mason at the top of the page went on to say:

Even so, notwithstanding the far‑reaching nature of the statutory scheme, it may be possible to say that the inherent jurisdiction is not wholly ousted and that it remains available to be exercised, not in competition with the care and protection which is vested in the Director by the Act, but in aid of his statutory responsibilities, and if need be, when the Director is not performing his duties and exercising his powers in accordance with the Act.

Your Honours, also at page 366 in a passage which commences at about point 3 on the page, the first new paragraph, and goes through to the top of page 367, your Honours will see that there is a reference to the need, first of all – this is page 366 about point 3 to point 5 – for there to be a strong indication.  Your Honours will see then in the passage that commences about point 7 on the page, going through to the top of the next page, that there is a recognition that the two systems may coexist.

Now, your Honours, we are in this case talking only about jurisdiction, not whether the order has been made in the end, nor especially what the detail of an order which might be made as to the question of jurisdiction.

Now, your Honours, the third to the same effect as Carseldine was the third of the cases, Johnson v Director‑General of Social Welfare for Victoria (1976) 135 CLR 92. At page 97, the top of the page, his Honour referred to the fact the Court had been “emphatic in expressing its view” that strong language – sufficiently clear language was needed, perhaps I should say, and he refers to the two earlier cases. Your Honours will see then the view expressed at about point 6 or 7 on the page.

McHUGH J:   What page, Mr Jackson?

MR JACKSON:   I am sorry, page 97, your Honour.  I referred first to about the first 10 lines and then the commencement of the second paragraph on the page to about halfway through that paragraph.

McHUGH J:   Mr Jackson, is this really a case of jurisdiction though, jurisdiction’s authority to decide.  Is it not more a question of power?  No one could doubt that the jurisdiction of the Family Court remains in respect of the welfare of the child.  Is it not really more a question of whether it has power in its jurisdiction to do certain things?

MR JACKSON:   Your Honour, that is in the end the way in which we would put the question, and the question – our argument really has been responding to the argument the other way and to the way in which the case has been dealt with.  If one takes the view, your Honours, that the provisions of the Family Law Act have conferred a relevant jurisdiction – prima facie have done so – it then is a question whether the powers have been taken away either by the Family Law Act itself or by the Migration Act.  It comes down in the end to that question, your Honour, in our submission.

Your Honours, could I just say finally in relation to this case, Justice Murphy at page 98, in the first paragraph of his reasons, again refers to the need for there to be a strong language.

GUMMOW J:   Of course that assumes that one knows what the content of the jurisdiction is.  One view here I suppose ‑ ‑ ‑

MR JACKSON:   Your Honour, in this case our submission is that one knows the ambit of the jurisdiction, in relevant terms.  Those three cases, your Honours, I think I may have submitted a moment ago, were cases of collisions, if I could use that expression, between laws of the same jurisdiction, as is the present case.  But, your Honours, if one goes first to the Family Law Act, it is clear that it excludes the exercise of power when it has to do so.  I have taken your Honours to the position in relation to the range of laws falling within the definition of child welfare laws, and, your Honours, one notes in passing in a vignette that the Migration Act has not been entirely forgotten. 

Section 67J(2) of the Act refers to orders which are Commonwealth information orders.  They are orders which require the provision of information as to the location of a child.  One of the bodies which can be the subject of such an order is the Department of Immigration and Multicultural Affairs.  It is contained, your Honours, if I could just say shortly, in the list of departments and Commonwealth instrumentalities that are prescribed for the purposes of that provision by regulation 12CB(d).

Your Honours, there is nothing in the Family Law Act if one looks at it in toto to suggest that its powers in relation to children are taken away if the children are in one way or another the subject of immigration detention.  One then has to go to the Migration Act and one does start with the rather striking feature that the Migration Act says for relevant purposes so little.  If one goes first to section 14(1) of that Act it says that:

A non‑citizen in the migration zone who is not a lawful non‑citizen is an unlawful non‑citizen.

And your Honours will see that that is the situation, that one has an unlawful non‑citizen.

The status, your Honours, of being an unlawful non‑citizen of course gives rise to a number of unpleasantnesses, but they start with section 189.  Section 189(1) provides that an officer must “detain the person”.  One sees that there is an obligation to advise the person as to applying for a visa in section 194.

GLEESON CJ:   When did that obligation to detain an unlawful non‑citizen come into the Migration Act, or was it there all along?

MR JACKSON:   Your Honour, I do not know the answer.  I will endeavour to find out.

GLEESON CJ:   Thank you.

MR JACKSON:   Your Honours, I should have prefaced what I am about to say by saying if one is looking to see what does the Act say about the powers of the Minister or any of the officers dealing with persons who are in immigration detention, the cupboard is fairly bare.  One sees in section 194 that there is an obligation to tell a detainee of “the provisions of sections 195 and 196” which relate to applying for a visa and about being kept in detention.  One sees also that there is then section 196(1) which says:

An unlawful non‑citizen detained under section 189 must be kept in immigration detention until –

one of the events referred to in the subsections.  One sees also section 196(3) which says that a person cannot be released even by a court from immigration detention if the person is “an unlawful non‑citizen”.

Your Honours, the removal from detention that is contemplated by that provision is removal from immigration detention, “immigration detention” being defined by section 5, and your Honours will see that immigration detention covers really a multitude of possible circumstances which are there set out in the definition of “immigration detention”.

Your Honours, I should add just in passing that section 196(3) and the provisions to which I have just been referring are part of Division 7 of the Act.  Division 7, unlike Division 6, which your Honours will see is a preceding section dealing with persons who are designated persons, contains in effect its own section 109 provision which your Honours will see in section 186.  So that the only point I seek to make out of that is that Parliament has in relation to section 186 turned its attention to the relationship with other laws.  It has turned its attention in section 196(3) to the relationship with other laws to a degree but that is essentially as far as it goes.

Now, your Honours, there are very few provisions of the Act which deal with the circumstances of immigration detention.  May I take your Honours very briefly through the provisions of the Act that deal with it.  By section 209, and section 211 in the case of children, the detainee is liable to pay for the costs of the detention.  That can be recovered and it can be recovered as a debt due to the Commonwealth – section 215.  If one goes to section 224 and the immediately preceding provision, there is power to, in effect, take property of the detained person on account of costs.

Then, your Honours, one sees a lot of provisions dealing with other people – masters and ships and so on – but when one has to go then to section 252, and a group of provisions through to section 252F, which say, in effect, that the detainee and various other persons can be searched and, in the case of various circumstances, for example, people going to a detention centre can be searched.  Your Honours, one of the provisions says that the detainee can be searched and, in effect, measured and photographed to ‑ ‑ ‑

GUMMOW J:   Section 252A?

MR JACKSON:   Yes, thank you, your Honour.  One sees in section 256 that the person detained is to have a degree of access to legal advice.  One sees in section 257 that for some purposes they can be asked some questions.  The provision I was meaning to refer to before was section 258, they can be photographed or measured or otherwise recorded for identification purposes.  Your Honours, then one comes to section 273 and section 273(1) says that:

(1)  The Minister may, on behalf of the Commonwealth, cause detention centres to be established and maintained.

(2)  The regulations may make provisions in relation to the operation and regulation of detention centres.

Subsection (3) sets out what regulations may include, and “detention centre” is defined in subsection (4).  Your Honours should have a copy of what are, as we understand it, the only regulations made that have any relevance to detention.  Your Honours will see in the document your Honours should have, it will set out the index to all the regulations and then, following that, the only regulations that appear to have anything that might be made under section 273 and that is regulation 5.35, where there can be compulsory “medical treatment of persons in detention” where the person does not, in effect, agree to it.

So, your Honours, it just is not right, with respect, to say that the Act provides a comprehensive scheme for dealing with the welfare or care of persons in detention.  What it says, to put it shortly, is that they are persons in detention.  Your Honours, to the extent to which so far as persons who are in detention are in detention centres, then the – your Honours, I think I may have made an error in what I said before, perhaps not.

To the extent to which section 273 is relied upon, one sees, your Honours, if I could go over to section 474(2), the definition of “privative clause decision” excludes in the last few words “other than a decision referred to in subsection (4) or (5)”, and if your Honours go to subsection (4) what is excluded are any decisions made under item 14 “section 273” or any regulations that might be made under that provision.

Now, your Honours, to the extent to which one would endeavour to say on behalf of the Commonwealth, in effect, that so far as section 273 is concerned the person is in detention, it is interesting to see that any decision made under that provision or any regulation that might be made under it is one which is not treated as one which is a privative clause decision for the purposes of the Act.

GUMMOW J:   There is a regulation‑making power, is there not, to add to these exclusions?

MR JACKSON:   Yes.  Your Honours, in our submission, if one looks at the terms of the Migration Act and asks what is it in that Act that excludes the exercise of the jurisdiction of the Family Court completely in relation to children who are in detention, in our submission, one just does not find it either in the scheme of the Act or in the provision of the Act.

Could I come then to the orders that are sought by the father in this case which appear at page 63.  If I could pass over the order sought at 9.2 for a minute, one comes then to 9.3 and it says:

That whilst the five said children . . . remain in immigration detention the Respondent Minister do give and the Appellant Father have contact to each of the five said children . . . 

(b)   . . . do have telephone contact with each of the five said children on no less than two occasions each week.

(c)   . . . adequate and proper medical treatment . . . 

(d)   . . . remain in immigration detention . . . in such community housing or other accommodation –

and at (e) that there be a restraint upon anyone for whom they are responsible assaulting them and –

(f)   . . . restraining him from placing the five said children . . . in Woomera Detention Centre, or such other environment –

Your Honours will see that those matters all relate, if I could speak about their nature first of all, as does 9.2, to the welfare of the children.

McHUGH J:   Mr Jackson, a matter that really concerns me is that none of these orders now have any practical scope because the children are out, are they not?

MR JACKSON:   Your Honour, out at the moment.

McHUGH J:   Out at the moment.  This is a matter for the Solicitor‑General, I suppose, but I am not sure that the appeal that is being put before us by the Family Court would not now involve giving an advisory opinion.

MR JACKSON:   It would be tempting, but I think wrong for me, your Honour, to adopt what your Honour said in the sense that what has happened has been that in consequence of the decision of the Full Court that is the subject of the present appeal, there have been interlocutory orders made but the interlocutory orders that have been made are ones that in a sense assume the jurisdiction that is impugned in these proceedings.  If it be that the Family Court is held not to have the jurisdiction, then these matters would all be matters that would seem to be ones that lie entirely within ‑ ‑ ‑

GUMMOW J:   Yes, the trouble is perhaps, Mr Jackson, that the Solicitor has not sought to remove here those currently operative, albeit interim, orders.

MR JACKSON:   Your Honour, it is the interim nature of them of course that – and one would think ‑ ‑ ‑

GUMMOW J:   Rather, he went and got this certificate under this provision, which we have said some caution is needed in granting these certificates, and what has just taken place emphasises what we said.

MR JACKSON:   Your Honour, all I can say in relation to it is that the issue is one which does not appear to be academic because if the Court takes the view that there is no power to do what is being sought, then the result would be that the interim ‑ ‑ ‑

GUMMOW J:   It depends what the “it” is, you see.

MR JACKSON:   I am sorry?

GUMMOW J:   It depends - “power to do it”.  The question is what is the “it”?

MR JACKSON:   Yes.  Your Honour, there are two “it”s, as it were.  One is the big “it” and the other is the smaller “it”.  The larger of the two is the release of the children from detention.  The more modest proposal, as it were, is in relation to the orders that are sought by the father.

HAYNE J:   Now, what if any effect on that follows from the father’s position?  Is he now in detention?

MR JACKSON:   Yes, your Honour.

HAYNE J:   Thus paragraph (a) at least - query (b) – may have some additional feature given his detention.

MR JACKSON:   Your Honour, the position may be that 9.2 as a practical matter could or might not be able to be made.  It depends really on where at the time when the order was being made he was and whether the order could be made in relation to having himself together with the children.  Your Honour, insofar as the other orders that are sought are concerned, they are orders which – perhaps the actual terms of an order that has been made might vary a little from those that are sought, but the ‑ ‑ ‑

HAYNE J:   I would hope that an order would not be made in terms, for example, at paragraph (c).  What does it mean?  What is its real content?

MR JACKSON:   Your Honour, I appreciate these are broadly framed but it depends in the end on the evidence that would be adduced in relation to the position of each of the children.

HAYNE J:   Which would generate the lis.

MR JACKSON:   Your Honour, the difficulty is of course that the lis is there by the institution of the proceedings.  The manner of resolution of it is one that has been cut off at the pass, as it were, because of the challenge to jurisdiction.  So that the further resolution of it, the evidence being called, the demonstration of the need, has not gone beyond the institution of proceedings really, and part of the evidence that is referred to in the Full Court’s reasons.  Your Honours, those are the submissions I wanted to make.  So far as the ‑ ‑ ‑

HAYNE J:   Does it come to this in this aspect of the argument, Mr Jackson, that if the children are lawfully detained, accepting that there are debates about whether that is right or wrong, you say that the Family Court can make some orders affecting what is to happen to them during their detention?

MR JACKSON:   Yes, your Honour.  We would recognise that it may be that some of the actions taken, if I could use a neutral term, by the Minister and the Minister’s officers, or perhaps the Minister’s agents, because not all these places have been conducted by government officers but detention service providers – centre providers, I understand they are described.  But it may be that in some circumstances there are decisions which would be protected by section 474, but, your Honours, one has not really come to that point.

Your Honours, the last thing I wanted to say was in relation to the external affairs power we adopt the submissions of, on the one hand, Mr Tilmouth, on the other hand, those made by ‑ ‑ ‑

McHUGH J:   Mr Jackson, before you sit down, have you given any thought to an issue that has puzzled me, and that is what additional scope does 67ZC have, given that under 65D the court can “make such parenting order as it things proper” and given the wide definition of what can be done under a parenting order, which in one of its paragraphs it may make an order that deals “with any other aspect of parental responsibility”?  What could be done under 67ZC that cannot be done under a parenting order?

MR JACKSON:   Probably very little.  I am not sure that I can give your Honour an immediate answer to that.  The reference to “specific issues order”, that is a wide provision, undoubtedly, and particularly when one sees what are specific issues orders in the indication that is given in the provision.

McHUGH J:   It may be that ZC is intended to have some operation in relation to third persons, but one would have thought 65D orders ‑ ‑ ‑

MR JACKSON:   Your Honour, 65 would in any event have operation in relation to that.  Your Honour will see, for example, 65C says “Who may apply for a parenting order”.  It may be that because of the way 65C is expressed and limiting the persons who may apply for it, that 67ZC would allow applications by persons who do not fall into any of those categories.  Your Honour, there is no doubt there is a significant overlap between the parenting order aspect of it, 67ZC, and of course 69ZH, but of those one would think that 67ZC is the widest and is the endeavour to exercise to the fullest the Commonwealth’s powers.

GUMMOW J:   Mr Jackson, could we just go back to section 474 of the Migration Act.  Now, it may be that on your construction of the Family Law Act the Family Court could make orders of a mandatory nature requiring the taking of administrative steps in the detention centre, which administrative step might be a privative clause decision.  Could that happen?

MR JACKSON:   Your Honour, it is possible, but could I just say in relation ‑ ‑ ‑

GUMMOW J:   If it did, what would follow?

MR JACKSON:   Your Honour, the position would be ‑ ‑ ‑

GUMMOW J:   I am thinking of contempt, for example, of the Family Court’s mandatory order.

MR JACKSON:   Your Honour, the position would be this, that one is speaking of, I suppose, decisions on the one hand that are made before an order of the Family Court, decisions on the other hand made after an order of the Family Court.

GUMMOW J:   Yes.

MR JACKSON:   Now, in relation to a decision made before, an order of the Family Court would be unlikely to be, although it is possible in some cases it may in substance be, a challenge to that order.  It would be seeking to make an order for the future.  Your Honour, if one looks, for example, at the approach taken in Carseldine and in Johnson, in terms of reading the statutes together, it would be unlikely that an order would be made by the Family Court which would have the effect of taking away from the Minister, to put it shortly, the power to make a decision in the future.

One would expect that the Family Court would not make an order which took away the power, but the Minister would be faced with the fact that there had been a decision by the Family Court.  The decision would be one which – it may be declaratory in form, in effect, because there is power to make all sorts of orders – he would be obliged to consider when making a further decision.  It may be, your Honour, that one cannot take away his power to make the decision, but the making of the decision would be one made in the light of the decision of the Family Court.

HAYNE J:   What is the provision under which a decision would be made about where to detain a prohibited non-citizen?

MR JACKSON:   Your Honour, there is no provision that says specifically where the power comes from.  However, the definition of “immigration detention” in section 5, in paragraph (b)(v), it speaks of:

in another place approved by the Minister in writing;

Now, the decision, one sees in the preceding paragraphs and subparagraphs, that it assumes the existence of an ability, to put it neutrally, to decide where.  That is where it comes from, your Honour.

HAYNE J:   If then the Minister decides that a particular child shall be detained in facility X, how then does the Family Court jurisdiction which you seek to invoke mesh with the Migration Act and, in particular, 474?

MR JACKSON:   Your Honour, it may well be that, in relation to that decision, the immigration detention be in a certain place, that that decision could not be the subject of attack, because of section 474, but it does not follow that there could not be orders made dealing with the welfare of the child, in other respects, whilst in that place.  To the extent to which the child was in a place which was a detention centre, the maintenance of the detention centre seems to be something that is provided for, and provided for only, in effect, by section 273 and decisions under 273, are excluded from privative clause decisions.

McHUGH J:   What do you say about the construction of 273 and its interaction with 67ZC?  If regulations are made under 273(2) or (3), it must limit the powers of the Family Court to make orders under 67ZC.  But assume no regulations are made, do the terms of 273, by necessary implication, indicate that the areas dealt with are solely within the power of the Minister?

MR JACKSON:   With respect, your Honour, no.  Indeed, the exclusion by the Migration Act by section 474(2) and (4) of decisions under section 273 from privative clause decisions is a recognition that section 273 decisions or decisions under regulations can be challenged by the court.  Your Honours, if I could just go back to section 474 for a moment.  Your Honours will see in 474(4) it says:

For the purposes of subsection (2), a decision under a provision or under a regulation or other instrument made under a provision, set out in the following table is not a privative clause decision . . . 

14  section 273 –

and you will see in the words ‑ ‑ ‑

McHUGH J:   Yes, and it is one thing to say that a decision made under an instrument is challengeable, but it is another question whether the effect of 273 is not to exclude the powers of other authorities.

MR JACKSON:   Your Honour, one really needs to start, I suppose, from section 273 which simply says that detention centres may be “established and maintained” and the “regulations may make provision in relation to” them.  Nothing in that says that the powers of a court are ousted.  One then sees that there is contained in the Act in section 474 and the following provisions significant attempts to oust the jurisdiction or prevent courts examining things that take place, to put it neutrally, but that does not include section 273.

GUMMOW J:   Now, the order of the Full Court appears at 228, so far as it is critical, I think.  It is order 2 at the top of 228 of the appeal book:

That paragraphs 1, 2 and 3 of the order made on 9 October 2002 be set aside . . . the application of –

Mr Tilmouth and the application of your client –

be remitted for rehearing –

That seems to suggest a confirmation of a jurisdiction to make orders in terms of those sought, does it not?

MR JACKSON:   Yes, it does, your Honour.

GUMMOW J:   Those sought run into the sort of problems, perhaps, we have been discussing with you.

MR JACKSON:   They may, your Honour.  I appreciate your Honour is talking about the court’s order and the order simply is, to put it shortly, that the proceedings continue with a view to considering whether the orders should be made.

GUMMOW J:   Yes, but with a message that they can be made.

MR JACKSON:   They can be made, your Honour, if the circumstances justify the making of it, and that recognises that there is a power in the end to make the orders if the orders are appropriate to be made in the circumstances of an appeal.  Now, because the case did not really get very far factually there has not been any examination of whether particular orders are unsuitable.

GUMMOW J:   I know, but my problem is if we dismiss the appeal, we would be taken as affirming that order unless we substituted some other order for the order of the Full Court.

MR JACKSON:   The other order, your Honour, that might be made, I suppose, would be to in effect uphold the order of the Full Court in the sense of saying that the question of jurisdiction was decided prematurely.  That is one way of dealing with it, your Honour.  The power to make particular orders was decided prematurely.  Those are our submissions, your Honours.

GLEESON CJ:   Thank you, Mr Jackson.  Yes, Mr Solicitor.

MR BENNETT:   If the Court pleases.  First, your Honour the Chief Justice asked me in‑chief about the naming of parties in these proceedings.  There are two separate sections which need to be considered; one under the Family Law Act, one under the Migration Act.  The provision in the Family Law Act is section 121 which provides for a prohibition on publishers of publishing the names of a party to proceedings “under this Act.”  “Proceedings” are defined, not very helpfully, in section 4 as “a proceeding in a court”, and a “court” is defined under the same section as in effect “the court exercising jurisdiction” under this Act.  The phrase is ‑ ‑ ‑

GUMMOW J:   We are not exercising jurisdiction under this Act.

MR BENNETT:   Yes, “in those proceedings by virtue of this Act.”  Of course, in De L this Court held that certain other provisions using that phrase did not apply to this Court. Here we have an appeal brought by virtue of an order of the Family Court under section 95 of the Family Law Act, so there is a rather more difficult question.

KIRBY J:   Well, that is one characterisation. The other is that it is by virtue ultimately of the Constitution.

MR BENNETT:   Yes, your Honour, and a third characterisation is that it is by virtue of both and that the two are – it is a false alternative to say it is under one or under the other.  Of course, that is a question for publishers, not a question for this Court, and it is not something on which ‑ ‑ ‑

KIRBY J:   Except that when one writes reasons and when the orders are made and when the title is typed, it either contains the name of the parties or it contains a pseudonym or a number.

MR BENNETT:   Your Honour, there is certain dispensation in relation to publication in law reports and judgments and so on, and there is also exclusion in subsection (9)(d):

the publishing of a notice or report in pursuance of the direction of a court.

We do not address any argument to your Honours in relation to this section.  We simply answer the question that was asked.

The other section is less of a problem.  The other section is section 91X of the Migration Act which provides:

(2) The court must not publish . . . the person’s name.

But the section only applies to proceedings which relate to a person in the person’s capacity as a person who applied for a protection visa, and it is hard to see how these proceedings relate to a person in that capacity.  That capacity is of course relevant to the application in a causative sense, but one would not have thought it fell within those words.  That again is something we simply bring to the Court’s attention.

Secondly, your Honour the Chief Justice also asked me a question about the legislation under which criminal proceedings are brought against children.  In New South Wales the proceedings of a Children (Criminal Proceedings) Act 1987, which seems to be a fairly comprehensive Act dealing with trial, arrest, procedure and penalties that can be imposed. I do not know what the position is in other States. If your Honours wish to have a schedule prepared, I can have that done.

GLEESON CJ:   That is sufficient, thank you.

MR BENNETT:   Yes, if your Honour pleases.  The third matter, your Honour, is that my learned friend, Mr Tilmouth, produced a table of comparative provisions of the Convention on the Rights of the Child and the Family Law Act.  We make two comments on that table.  It shows, we would submit, the disparity, rather than the relationship, between the two, when one actually looks at the comparisons.  It is what one would expect, in two sets of provisions, dealing with what, in a very broad sense, is a similar subject matter.  But the emphasis in the Family Law Act provisions throughout is on parental obligations and parenting and determination of custody and matters of that sort rather than child welfare in a freestanding context.  The exception, of course, being the section which we are concerned with in this case, 67ZC.

GLEESON CJ:   But the paramount consideration concept came into the Family Law Act long before the Convention and the Convention uses a different concept, best interests of the child except, I think, in a limited context, adoption, where the paramountcy principle takes over.

MR BENNETT:   Yes.  Well, as I have indicated, your Honour, the existence of the paramountcy principle is itself a reason for reading down section 67ZC in relation to third parties.  It could not, for example, as I said, apply to a claim by a child for a debt.  One would not say in determining the issues between the child and a person contracting with the child that the welfare of the child is the paramount consideration; it simply would not work.  The same applies, in a sense, to the sort of matter considered here.  That is why, when I took your Honours to Re X in England, I stressed the way the English courts under the parens patriae jurisdiction have weighed interests, not having a paramountcy consideration in relation to it.

Fourthly, my learned friend Mr Jackson referred to section 69ZK – I have caught his disease in relation to misidentification of sections – in relation to child welfare laws and laws dealing with criminal proceedings against children and the like.  He is really putting, although he did not use this phrase, an expressio unius argument, and we would simply remind the Court of what was said by this Court in Houssein v Department of Industrial Relations & Technology (1982) 148 CLR 88 at 94, where it said that that maxim was a good servant, but a poor master, and this is a very good example of the problem with applying that sort of maxim.

The question of child welfare laws was clearly something which had to be dealt with.  It was something in the same subject area, if one likes, as what is being considered here and the question of the intersection between this Act and those laws was therefore a matter which had to be dealt with, particularly in view of section 109.  But the Act has not purported to go through every possible statute, State or federal, which might affect the interests of children in one way or another and which might therefore have some operation in relation to a broad operation of 67ZC and exclude or apply it.  So it is a case where the expressio unius maxim has no real work to do.

Fifthly, my learned friend, Mr Jackson, referred to cases on the marriage power and he took your Honours to a large number of them.  What is significant about those cases is that, except for the two sterilisation cases and the one case on the treaty concerning abducted children, they are all cases concerned with custody and they are all cases dealing with issues about children who become children of the marriage, children who are children of one parent, matters of that sort.  Indeed, Cormick’s Case, which my learned friend read a passage to your Honours from, at pages 175 to 176, clearly shows the nature of the subject matter we are talking about.

We are talking about, as the Act shows in many places, parental rights and parental responsibilities.  At the end of the day the precise limits in relation to third parties are undefined, but except perhaps in the sterilisation cases which, as I have shown, are an exception, or a special case, the Court has not considered limits in relation to third parties, if those cases are really third party cases, and we submit they are not.

We simply remind your Honours of what was said by Lord Simonds in Chapman v Chapman [1954] AC 429 at 445 – your Honours do not have this on the list – where he referred to the famous saying that, “I know not when day ends and night begins, but I do know that midday is day and midnight is night”. That is very much the situation here, we would submit. There are, of course, all sorts of examples one can think of on the fringe of parental responsibility. Problems of an uncle who resides in the house who is interfering with children is one example. One can think of many examples of things which are close to parenting but involve third parties.

Whatever one says about those borderline cases, and sterilisation may be another, this case is a long, long way from them.  Even if there is difficulty, except by reference to a general phrase like “within the scope of the marriage power” or “relating to the marriage” and so on, whatever difficult phrase one uses may well produce difficulty in determining when day ends and night begins, but it does not provide any problem in relation to midday and midnight.

Sixthly, your Honour Justice Callinan asked a question about the relationship of the powers in section 51 of the Constitution. That is an issue which is discussed by Professor Zines in his book The High Court and the Constitution, fourth edition, 1997. We have photocopied for your Honours the relevant pages; it is a five‑page extract. Your Honours will see that the general proposition is that the Court has not limited one power by reference to another, perhaps with the exception of the specific problem in relation to section 51(xxxi). Your Honours see from what I have just handed up, at page 22 Professor Zines says at the bottom of the page:

The argument that a head of power should be given a restricted meaning because of the existence of another power has, however, arisen in the following circumstances:

(b)  where a power contains a particular addition to a broadly described subject –

like placitum (xxii) –

and that addition is absent from another power –

like placitum (xxi).

CALLINAN J:   Mr Solicitor, to say that another power is given a restricted meaning really involves an assumption that its true meaning, that its meaning in terms, is restricted.  Why do you not just read it according to the principle, the most basic canon of construction of all, that the instrument has to be read as a whole?  If you do that, then plainly various parts will influence the meaning and understanding of other parts.  There seems to be a complete departure, if I might say so, with respect, in the majority judgments in Russell from that very clear principle and I do not think, with all due respect, that it depends upon what was said in the Engineers’ Case, the judgments in which are not always entirely clear anyway.

MR BENNETT:   Your Honour, the other example Professor Zines refers to at page 23 is that paragraph 13 refers to “the incorporation of banks” but the section dealing with insurance does not have any reference to incorporation, so the question is whether “the express mention of incorporation in s 51(xiii)” means that “the Commonwealth could not incorporate interstate commercial companies under s 51(i) or insurance companies under s 51(xiv)”, and that line of reasoning has been rejected and he refers to Australian National Airways.

CALLINAN J:    I have a little trouble reconciling that whole approach with the approach of the Court in Lange’s Case, because you can get an implication from the structure of the Constitution but you cannot read parts of the Constitution as influencing the meaning of other parts. I just do not know how you can reconcile those two approaches.

MR BENNETT:   Your Honour, in any event, if one just takes the word on its own, marriage, we would submit, goes beyond a law saying one registers a marriage. 

CALLINAN J:   Could I say this, Mr Solicitor:  I do not think anything really turns upon it in this case. 

MR BENNETT:   In view of that I will not pursue the matter.  Seventhly, your Honour Justice McHugh asked a question yesterday about the legality of the detention of minors.  That is an issue which does not arise here as such, we would submit.  It is not something which was in that form considered by the Court, it has not been argued, and it might well involve a lot of questions for which your Honours would need to have the benefits of a view of a court which is able to determine that. 

KIRBY J:   But the problem is that we have given special leave in the cases that you know of and that issue will be raised.  The Full Court has mentioned it and it is a little artificial to resolve the matter, if it comes to this, without knowledge of those facts. 

MR BENNETT:   Your Honour, I think I am correct in saying that those cases do not involve children. 

KIRBY J:   Yes, but children are an a fortiori case, one would think or, at least arguably, of adult detention. 

MR BENNETT:   Well, your Honour, it is a matter which, if it were to be considered and decided in this case, we would submit, would be appropriate for further submissions and argument, because it is a heading which would itself require lengthy consideration.  May I just say this about it.  In Lim’s Case this Court said that as a general matter a restriction on a person’s liberty requires action in accordance with Chapter III, but that there are a whole raft of exceptions.  The Court mentioned a few of those:  bail pending hearing of a case; there is quarantine detention; there is detention of a person who is, for mental reasons, a danger to the community.  There are all sorts of specific exceptions to it.  Indeed, detention of juries while they are debating certain aspects of cases may be another example. 

KIRBY J:   I do not think that has ever been described as detention.  It is separation. 

MR BENNETT:   Your Honour, the word is not used ‑ ‑ ‑

KIRBY J:   It is part of their civic duty.  They are not detained. 

MR BENNETT:   Well, they can be, your Honour.  The word may not be used ‑ ‑ ‑

GLEESON CJ:   The Americans call it sequestration. 

MR BENNETT:   Yes.  What happens to the juror may not seem very different than what happens to someone who otherwise has his or her liberty ‑ ‑ ‑

KIRBY J:   Except that a juror knows that when he or she has fulfilled the civic duty, liberty awaits. 

MR BENNETT:   Your Honour, a prisoner sentenced to 20 years imprisonment knows that. 

KIRBY J:   Yes, but the problem here, as it is alleged, is that that certainty is missing. 

MR BENNETT:   Your Honour, that is a different issue.  That is not the issue I am addressing at the moment. 

McHUGH J:   Mr Solicitor, children do stand in a very different category. It is one thing to say that persons who are unlawfully in the country can be taken into custody and held for the purposes of deportation without infringing Chapter III or any other provision of the Constitution. It is another thing to say that a child who is brought into the country unlawfully can be imprisoned, because the first duty of the sovereign – to use the old terminology – is to take care of that child. That child comes under the parens patriae jurisdiction, and, consistently with Chapter III, it may be a question whether or not the Executive Government or, for that matter, Parliament can imprison.

MR BENNETT:   Your Honour, there are a number of answers to that.  The first is that the traditional parens patriae jurisdiction depended on allegiance and therefore did not apply to an alien.

GUMMOW J:   Yes, but it was extended.

MR BENNETT:   It was extended, but if one talks about the original common law jurisdiction ‑ ‑ ‑

GUMMOW J:   Yes, the common law and equity jurisdiction was extended, was it not?

McHUGH J:   And we are talking about children.

GUMMOW J:   In respect of children it was.  I am sure.

MR BENNETT:   It was extended I think by statute, your Honour, but I may be wrong on that.

KIRBY J:   Your first reason does not seem a very powerful one.  Dig deeper.

MR BENNETT:   But the second and more powerful reason is this, your Honour.  If one is entitled to detain for the purposes of removal and holding while matters relevant to applications are determined, an ultimate removal, then that power, in my respectful submission, applies equally to an adult and a child.

McHUGH J:   Well, it may or may not, but it seems to me that the position of the children is distinguishable.  It is a separate issue which needs to be resolved.  What happens in the other cases if they concern adults, it may say nothing as to the position of these children.

MR BENNETT:   It may not, your Honour.  Also of course the statute overrides the common law if there is a common law principle.

McHUGH J:   Yes, but the question is whether the statute can do that consistently with the Constitution.

MR BENNETT: Your Honour, the Constitution does not protect the common law from statutory interference.

McHUGH J:   I appreciate that but in understanding Chapter III, this Court has gone a long way to saying that it recognises certain, I would say, fundamental rights or traditions, natural justice, matters of that kind.

MR BENNETT:   Your Honour, it is a large jump to say that ‑ ‑ ‑

McHUGH J:   It is a question of whether or not Chapter III gives rise to substantive rights, and there is some authority in this Court for the proposition that it does and that it goes beyond protecting procedural rights.

MR BENNETT:   Your Honour, that issue does not arise in this case and, in our respectful submission, should not be decided or dealt with in these proceedings.

McHUGH J:   I am not suggesting it will be.  I am just concerned that we will not get to what is the real issue in this case.

KIRBY J:   Quite a lot of argument yesterday was addressed to that point that Justice McHugh has just raised, because the point was made that if there is a right to liberty, then you do not get into the balancing and discretionary considerations of welfare.

MR BENNETT:   Your Honour, I do not dispute that.  If detention is unlawful, of course a court may make an order of habeas corpus, a court with appropriate jurisdiction to do so, and can deal with the matter.  I do not seek to challenge that proposition.

KIRBY J:   But, you see, you then have to ask, “What is the foundation for the contention of illegality?”, and at least one foundation, mentioned by the Full Court at the end of its reasons, with the complaint you make of the way it came up, is going to be before the Court in a very short time in respect of adults.

MR BENNETT:   Yes.

KIRBY J:   And we are going to solemnly pass upon that.  Assume that is answered favourably and the Al Masri principle is upheld.  Then we would be passing upon this case and reaching a conclusion which could well be published at about the same time or even after that decision which in respect of children, apparently an a fortiori case, the Court would have to deal with the matter without dealing with that issue.  It seems very artificial.

MR BENNETT:   Your Honour, there are no facts in this case except ages.  That is the other problem.

McHUGH J:   That is why I raised the question of Mr Jackson as to whether or not we are not being asked to give an advisory opinion in this case, particularly in respect of the question of legality of detention.  Mr Jackson’s case may fall into a different category but I am not sure that Mr Tilmouth’s does.  We seem to be giving an advisory opinion in his case.

MR BENNETT:   Your Honour, if there is no power in the Family Court to determine legality of detention as opposed to exercising a discretionary judgment in cases where it is appropriate, then all of that does not arise.  The proceeding simply, to the extent that it turns on that issue, is brought in the wrong court.  That is recognised by the fact that no application was made to the Family Court on the basis of any unlawfulness of detention.  As I submitted earlier, it was not even argued or suggested to the Family Court that it was there.

The other matter I wanted to mention is this.  There was a question yesterday about the period of detention in the present case.  I only want to say this about that, that it is not something the Court should express adverse views upon in the abstract, because the Court is not seized of what might be all the relevant facts and circumstances in relation to that.  One would want to know, for example, if one were looking at questions of illegality and looking at the period, at the reasons for the period, at the reasons why removal may not have taken place immediately on the termination of the proceedings, one would need to look at the question of the period at which at least some of the children spent in residential community housing, one would need to consider the question of the relevance of the escape by two of the children; there are various issues referred to in the chronology.  There are a whole host of matters one would wish to place against the stark figure and, in my respectful submission, as the matter does not arise directly, it would be inappropriate to draw conclusions and express views about them, merely based on the numbers alone.

Your Honour Justice Gummow asked a question yesterday about the reference of power and the question about whether it was confined to exnuptial children.  That was dealt with this morning by my learned friend, Mr Jackson ‑ ‑ ‑

GUMMOW J:   Yes it was.

MR BENNETT:   ‑ ‑ ‑ and we accept his answer, and I did not submit anything to the contrary in-chief.  The final matter concerns the discussion which took place this morning about what would happen if the appeal were to be allowed and the questions of mootness and so on.  There is no question of mootness.  What happened was Justice Dawe held that she had, in effect, no jurisdiction or power – leave aside the distinction for the moment – and therefore dismissed the application.  The Full Court made other orders returning the matter to a single justice to be dealt with according to law. 

Now, if the appeal is allowed, her order would be restored and the proceedings would stand dismissed.  That would, necessarily, either automatically or on another application, depending on procedural matters which I am not familiar with in the Family Court, one way or the other it could bring an end to the interlocutory orders.  The interlocutory orders are, of course, nothing more than interlocutory orders.

KIRBY J:   So that would mean that the children who are presently at liberty would be returned immediately to immigration detention.

MR BENNETT:   It would, your Honour.  When your Honour says “immediately”, there may be steps that would have to be followed.  It is, we would submit, with respect, a novel proposition that the existence of an interlocutory order, which mitigates against what is complained of in the action, makes an appeal against an overall dismissal of the action moot.  It is not moot in any way, because that order is nothing more than an interlocutory order.

KIRBY J:   Could I just ask for a little help on a rather small matter.  You will remember yesterday I raised the question of the decisions of the United Nations Human Rights Committee and I found those decisions, at least two of them, in the Amnesty bundle.  One of them is A v Australia and the other is Baban v Australia.  It is difficult to understand Baban because Sir Nigel Rodley, a member of the committee, refers in his opinion to a case of C v Australia, and it does seem that that is an important step in this series.  C is referred to in the latest book by the High Commissioner of Human Rights on refugee protection in international law.  If I could have a copy of C v Australia, I would be appreciative.  I am not sure of the procedures, whether Australia makes a formal response to these.  I do not find them in the Amnesty material and if there is a formal response, then I would want to know what the formal response of Australia to each of them has been.

MR BENNETT:   Yes.  My only concern in relation to that was the question of Eastman and the further evidence before this Court and the question whether that is evidence or material analogous to judicial material which can be looked at of course as a matter of course.

KIRBY J:   I would take the view that it is intellectual material which would assist the Court in reasoning; it is not evidence at all.

MR BENNETT:   Yes.  Assuming there is no objection from any of my learned friends or the rest of the Court, we would be happy to provide to your Honour both that third decision and a copy of Australia’s responses, and I will have that done. 

KIRBY J:   Thank you.

MR BENNETT:   My learned friend this morning referred to section 69ZH(1) and the question of severance.  We would submit that the key thing about section 69ZH(1) is the words “this section”.  What subsection (1) is referring to, we would submit, is in sections 69ZE and 69ZG.  The second matter is of course that nowhere did my learned friend seek to give any explanation for the presence of subsection (4), which is inexplicable, except on the construction we put on the section.  To say that other provisions have effect according to their tenor is meaningless, if but for that provision they have effect according to their tenor.

KIRBY J:   Could I just ask you in light of your mention of the word “evidence” whether, contrary to my understanding, any of the three matters that I have referred to, A, C, or Baban, are related to these particular litigants?  If they were, I would not want to receive it, but if it is simply material on the issue of obligations under the covenant, then I would want to receive it.

MR BENNETT:   As far as I am aware they are not, your Honour, but I will have that checked and if any of them are, I will exclude those from the bundle, but I am fairly sure they are not.

GUMMOW J:   Could you just explain again, Mr Solicitor, your knockout point on 69ZH(4).

MR BENNETT:   Yes, your Honour.  Section 69ZH is, we would submit, in combination with 69ZG and 69ZE, comprehensively saying what operation the part has for the purpose of course of constitutional power.  It does that by saying the matters which fall within the references by the States are dealt with by section 69ZE and limited to what is covered by those references – I am paraphrasing, of course.  In relation to the Territories, where there is no problem, the whole part has effect as it reads, that is 69ZG.  And then 69ZH says in relation to other provisions which are dealt with under the marriage power, what the section does is to separate out different parts of Part VII.

GUMMOW J:   Yes.  The phrase “By virtue of this subsection” introduces not only subsection (4), but subsection (2) of ZH.  See 69ZH(2), “By virtue of this subsection”.

MR BENNETT:   Yes, your Honour.

GUMMOW J:   And likewise, (4), “By virtue of this subsection”.  It suggests there is some distinct operation of subsections (2) and (4).

MR BENNETT:   There is, your Honour.

GUMMOW J:   Then what is it?

MR BENNETT:   They refer to totally different provisions.  I think I am correct in saying that there is no overlap between what is in (2) and what is in (4).

GUMMOW J:   I see.

GLEESON CJ:   As I understand your submission, it is that the opening words of section 69ZH(1) mean, for example, without prejudice to its effect pursuant to 69ZG.

MR BENNETT:   Yes, ZE and ZG, your Honour, that is precisely the way we construe them.  Subsection (4) would have no work at all to do and would be totally meaningless if the whole part had effect according to its terms.

GUMMOW J:   Yes, I know.  I suppose what I am asking is, those provisions collected in subsection (4), do they have some freestanding connection with constitutional power?

MR BENNETT:   Your Honour, they are miscellaneous.

GUMMOW J:   So that there is no need for any hooking them up to some other sections?

MR BENNETT:   We have not gone through the exercise of saying what is the common characteristic of the sections referred to in subsection (2) and the sections referred ‑ ‑ ‑

GUMMOW J:   In other words, what is their characteristic which excuses them from the necessity of subsection (2) in order to give them constitutional life?  That is what I am asking I suppose.

MR BENNETT:   Yes.  Your Honour, I suppose the honest answer to that is that the exercise which that would require has not been ‑ ‑ ‑

GUMMOW J:   It would be helpful if it could be done, I think.

MR BENNETT:   I will have it done, your Honour.  Your Honour will see, for example, that Subdivisions C, D and E of Division 6 are concerned with obligations created by residence orders, contact orders and specific issues orders ‑ ‑ ‑

HAYNE J:   They hang off the operation of other provisions of the Act.

MR BENNETT:   Yes, they seem to.

HAYNE J:   Subdivisions C, D and E, I think.

MR BENNETT:   Yes.

KIRBY J:   I take the force of this submission which in effect says look at what has actually been enacted and, with that in mind, look at the purpose of Parliament and therefore the constitutional power that is being invoked.

MR BENNETT:   Yes.

KIRBY J:   But you will remember yesterday there was a reference to a decision long ago of Justice Starke that has said – and it has been applied many times – that that is not the way you go about it. You look to whether or not – whatever Parliament thought it was doing or said it was doing, that you look to whether there is power under the Constitution for what it did. It does not overcome the construction point but it does refer to the constitutional point.

MR BENNETT:   Yes.  There are two points about that really.  The first, as your Honour says, is it does not qualify the construction point here.  The second is that external affairs power in relation to a treaty is in a slightly different situation to ‑ ‑ ‑

KIRBY J:   I know Justice McHugh said that yesterday, but I do not see that in the formulae in section 51. It is just another head of power with respect to it.

MR BENNETT:   Your Honour, it would be surprising if one had to trawl through – if every time something was otherwise not within power ‑ ‑ ‑

KIRBY J:   But it is propounded here you see.  It is propounded by the first respondents.

MR BENNETT:   Yes, but, your Honour, it would mean ‑ ‑ ‑

KIRBY J:   They have not trawled through; they have pointed, they have identified.

MR BENNETT:   No, your Honour, they have not, but it would mean in effect that that task would be required.

KIRBY J:   I can see you here on another day supporting this proposition.

MR BENNETT:   No, your Honour, not in relation to treaties where ‑ ‑ ‑

KIRBY J:   Do you promise?

MR BENNETT:   Now, that is an undertaking I ‑ ‑ ‑

KIRBY J:   If you can identify that line of territory, I would appreciate reference to it.

MR BENNETT:   I will have that done too, your Honour.

KIRBY J:   The alternative is to ask Justice Gummow what Justice Starke said many years ago.

MR BENNETT:   Yes, I will have a ‑ ‑ ‑

McHUGH J:   The theory is, is it not, that the Parliament cannot legislate with respect to the subject matter of a treaty as if it was a new and

independent head of power under section 51? What the law must do is conform to the treaty and carry its provisions into effect.

MR BENNETT:   Yes.

KIRBY J:   That strikes me as arguably a 19^th century view of the external affairs power.

McHUGH J:   I think that was what was decided in Tasmanian Dam.

MR BENNETT:   Yes.  There is a difference of course between a statute which relates to an external affair independently of a treaty and a statute which relates ‑ ‑ ‑

McHUGH J:   As in Polyukhovich.

MR BENNETT:   Yes, or as in the Tampa to some extent.

GUMMOW J:   Mr Solicitor, can we just go back for a minute to ZH.  It would be your submission that subsections (2) and (4) exhausts the universe, would it not?  In other words, because Subdivision F is telling you all you need to know about the application, extension, et cetera.

MR BENNETT:   No, your Honour.  I think there are some provisions which are in neither, but they would get picked up, of course, by section 69ZG in relation to territories and they may or may not be picked up by section 69ZE in relation to the referrals.

GUMMOW J:   It would be useful to have that explained too, because it is an important part of the structure, I think, on which you rely.  It will put it all in a framework.

MR BENNETT:   Yes, I will do that, your Honour.

GLEESON CJ:   Thank you, Mr Solicitor.

MR BENNETT:   May it please the Court.

MR JACKSON:   May we respond to that when it comes?

GLEESON CJ:   Yes.

MS HAMPEL:   Might we also take advantage of the leave granted to the parties in respect of further written submissions following the argument in Al Masri?

GLEESON CJ:   Yes.

MS HAMPEL:   If the Court pleases.

GLEESON CJ:   We will reserve our decision in this matter and we will adjourn for a short time to allow people to rearrange themselves.

AT 12.11 PM THE MATTER WAS ADJOURNED