Minister for Immigration and Multicultural and Indigenous Affairs v B - [2004] HCA 20

HIGH COURT OF AUSTRALIA
GLEESON CJ,
McHUGH, GUMMOW, KIRBY, HAYNE, CALLINAN AND HEYDON JJ
MINISTER FOR IMMIGRATION AND MULTICULTURAL
AND INDIGENOUS AFFAIRS  APPELLANT
AND
B & ANOR  RESPONDENTS
Minister for Immigration and Multicultural and Indigenous Affairs v B
[2004] HCA 20
29 April 2004
A246/2003
ORDER
1.   Appeal allowed.
2.   Set aside the orders of the Full Court of the Family Court of Australia made on 19 June 2003 and, in their place, order that the appeal to the Full Court of the Family Court be dismissed.
On appeal from the Family Court of Australia
Representation:
D M J Bennett QC, Solicitor-General of the Commonwealth with G R Kennett for the appellant and intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor)
S W Tilmouth QC with S C Churches and S D Ower for the first respondents (instructed by Jeremy Moore & Associates)
D F Jackson QC with B W McQuade for the second respondent (instructed by Boylan & Co)
F P Hampel SC with K L Eastman appearing as amicus curiae on behalf of Amnesty International Australia (instructed by Public Interest Advocacy Centre)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS
Minister for Immigration and Multicultural and Indigenous Affairs v B
Courts and judicial system – Family Court – Jurisdiction – Scope of welfare jurisdiction – Constitutional basis of welfare jurisdiction – Whether conferral of jurisdiction in relation to a "matter" – Children in immigration detention – Whether welfare jurisdiction extends to children of marriages of parents in immigration detention – Whether Family Court in exercising welfare jurisdiction can make orders directed at third parties – Whether Family Court has power to order release from detention – Whether any general welfare jurisdiction and powers of Family Court authorises orders inconsistent with specific obligations imposed on federal officers under Migration Act.
Family law – Children – Children in immigration detention – Welfare jurisdiction – Scope of welfare jurisdiction – Whether welfare jurisdiction extends to children of marriages of persons in immigration detention – Whether court has power to order release from detention.
Family Court of Australia – Jurisdiction – Scope of welfare jurisdiction – Whether welfare jurisdiction extends to children of marriages of parents in immigration detention.
Family Court of Australia – Order – Certificate granting leave to appeal to High Court of Australia – Relevant considerations governing grant of such certificate.
Migration – Detention – Unlawful non-citizens – Children in immigration detention – Whether Family Court has power to make orders releasing children from detention.
International law – Interpretation of legislation in conformity with treaty obligations – Relevance and effect of provisions of treaties to which Australia is a party – Obligation to give effect to clear provisions of valid Australian statutory law notwithstanding alleged breaches of international law.
Words and phrases – "jurisdiction", "matter".
Constitution, covering cl 5, ss 51(xxi), 51(xxii), 73, 74, 75, 76, 77.
Family Law Act 1975 (Cth), Pt VII, ss 60B, 67ZC, 68B, 69H, 69ZH, 95(b).
Migration Act 1958 (Cth), ss 189, 196.

GLEESON CJ AND McHUGH J. The question in this appeal is whether the Family Court of Australia has jurisdiction to order the Minister for Immigration and Multicultural and Indigenous Affairs to release children who are detained in an immigration detention centre in accordance with the Migration Act 1958 (Cth) ("the Migration Act"). In our opinion, the Family Court has no jurisdiction to make such an order. Nor has it any jurisdiction to make orders concerning the welfare of children who are held in immigration detention.
The principal difficulty in the appeal arises out of the complexity of the legislative scheme contained in Pt VII of the Family Law Act 1975 (Cth) ("the Act") dealing with children, a complexity that is not reduced by a form of drafting that is sometimes used in federal legislation. This form of drafting commences with the enactment of a provision that, standing alone, suggests an absence of constitutional constraints on the federal Parliament. Other sections of the legislation, however, then operate to confine the primary provision and bring its content within one or more heads of federal constitutional power. No doubt the drafters of legislation in this form can defend it as being no more than a logical set of propositions that conduce to clarity of meaning. Nevertheless, in the present case it appears that this form of drafting does not convey clearly to the reader the object of the legislation. What is clear to the drafter is not necessarily clear to the reader. The drafter has the advantage of knowing the object that he or she is seeking to achieve. As the argument in this appeal and the division of opinion in the Family Court indicates, however, the object of the drafter may not be as clear to those whose task is to read and interpret the legislation. We think that it may also fairly be said that the drafter of significant parts of Pt VII has not always kept in mind the constitutional requirements of ss 75, 76 and 77 of the Constitution. Section 77 confines the jurisdiction of federal courts to the "matters" mentioned in ss 75 and 76 of the Constitution. In turn, this requires that the conferral of jurisdiction identify – expressly or inferentially – the substantive legal rights, privileges, liabilities or duties of persons who are the subject of the conferral or investing of federal jurisdiction for the purposes of assessing whether jurisdiction has been conferred in respect of a constitutional "matter".
Statement of the case
The children concerned in this appeal are two sons and three daughters of persons who, like the children, are unlawful non-citizens within the meaning of ss 4 and 14 of the Migration Act. In July 2002, the children and their mother were being held at an immigration detention centre at Woomera in South Australia, a centre established under that Act. At the time this appeal was heard, but not in July 2002, the father of the children was detained in an immigration detention centre. In July 2002, the two sons commenced proceedings by their mother as their next friend in the Family Court of Australia in its South Australian registry. Later, the mother was given leave to join the three female children as parties to the proceedings. Among the orders sought by the male children was a mandatory order under s 67ZC of the Act that the Minister "be required to release [the children] from detention at the Woomera Immigration Reception Processing Centre." The father intervened in the proceedings on behalf of all five children and also sought various orders against the Minister.
In October 2002, Dawe J dismissed both the applications by the two male children (the three female children had not yet been joined as parties to the proceedings) and by the father. Her Honour held that the Family Court did not have jurisdiction in South Australia to make the orders sought. However, an appeal to the Full Court of the Family Court succeeded, and the matter was remitted for rehearing before another judge, who dismissed the applications. After another appeal, the Full Court ordered that the children be released from immigration detention until the final hearing of their applications. In the first appeal the majority of the Full Court, Nicholson CJ and O'Ryan J, said that the provisions of subdiv F of Div 12 of Pt VII of the Act "assume the conferring of jurisdiction upon the court in respect of children of marriages without limitation."[1] Their Honours held that the welfare jurisdiction of the Family Court in respect of children was not limited to disputes between parents concerning custody and access to children. The majority said that, when the welfare of children requires it, the Court could make orders against third parties[2]. The majority was also of the view that s 67ZC of the Act gave effect to the United Nations Convention on the Rights of the Child[3], and that the constitutionality of s 67ZC was not confined by the marriage and divorce powers conferred on the federal Parliament by s 51(xxi) and (xxii) of the Constitution[4].
[1]B v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 604 at 627.
[2]B v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 604 at 639-640, 645, 655.
[3]Opened for signature 20 November 1989, [1991] ATS 4 (entered into force 2 September 1990; entered into force for Australia 16 January 1991).
[4]B v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 604 at 650-651.
After the hearing of the first appeal to the Full Court of the Family Court, that Court granted a certificate under s 95(b) of the Act, giving the Minister a right of appeal to this Court on the ground that the case involved "an important question of law or of public interest". The Full Court certified that four such questions were involved in this case. In the view we take of this appeal, however, it is necessary to refer only to question 1, which raises the following issue for determination:
"The scope of the 'welfare' jurisdiction of the Family Court under s 67ZC and/or s 68B of the Family Law Act 1975, in particular whether that jurisdiction extends to:
(i)determining the validity of the detention of a non-citizen child (who is the child of a marriage) under s 196 of the Migration Act 1958, and
(ii)making orders directing officers in the performance of their functions under the Migration Act in relation to such a child."
Jurisdiction
As the above question indicates, a central question in the appeal concerns the jurisdiction of the Family Court. Jurisdiction is a term used with a variety of meanings. It is often used to describe the amenability of the defendant to the reach of a court's process[5], which may be limited to certain subject matters or geographical locations. In a legal context the primary meaning of jurisdiction is "authority to decide"[6]. It is to be distinguished from the powers that a court may use in the exercise of its jurisdiction[7]. Because the Family Court is a federal court created by the Parliament of the Commonwealth[8], its jurisdiction – its authority to decide – must be defined in accordance with ss 75, 76 and 77 of the Constitution.
[5]Laurie v Carroll (1958) 98 CLR 310 at 331.
[6]See Ah Yick v Lehmert (1905) 2 CLR 593 at 603; Baxter v Commissioners of Taxation (NSW) (1907) 4 CLR 1087 at 1142.
[7]Harris v Caladine (1991) 172 CLR 84 at 136.
[8]Family Law Act 1975 (Cth), s 21.
Section 77 empowers the Parliament of the Commonwealth to define the jurisdiction of a federal court with respect to any of the matters mentioned in ss 75 and 76 of the Constitution. One of the matters mentioned in s 76 is a matter "arising under any laws made by the Parliament". "Matter" in ss 75, 76 and 77 does not mean a legal proceeding between parties or a bare description of some subject matter that falls within a head of federal legislative power. In In re Judiciary and Navigation Acts, Knox CJ, Gavan Duffy, Powers, Rich and Starke JJ said[9]:
"[W]e do not think that the word 'matter' in s 76 means a legal proceeding, but rather the subject matter for determination in a legal proceeding. In our opinion there can be no matter within the meaning of the section unless there is some immediate right, duty or liability to be established by the determination of the Court."
[9](1921) 29 CLR 257 at 265.
A "right or privilege or protection given by law"[10] may give rise to a "matter" within the meaning of ss 75 and 76. Likewise, an existing claim of right[11] or any criminal liability or civil duty imposed by federal legislation may also give rise to a "matter" within the meaning of ss 75 and 76[12]. However, there can be no "matter" for the purpose of ss 75, 76 and 77 of the Constitution unless the relevant legislation identifies – expressly or inferentially – some right that may be determined or privilege that may be granted by a court, or some duty or liability that is enforceable against a person by another person. Most "matters" involve the determination of a duty or liability in one party and a correlative right or standing in another person to enforce the duty or liability. In some exceptional cases, however, a court may be given jurisdiction to make an order on the application of a person that will constitute a "matter" even though there is no lis inter partes or adjudication of rights. Orders concerning judicial advice to trustees or company liquidators, the administration of assets or the giving of consent to the marriage of a ward of the court are well-known exercises of judicial power[13] and are therefore "matters" in this exceptional sense. The jurisdiction of the Family Court is confined constitutionally to "matters" in the senses described above.
[10]In re Judiciary and Navigation Acts (1921) 29 CLR 257 at 266.
[11]In re Judiciary and Navigation Acts (1921) 29 CLR 257 at 266.
[12]R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141 at 166.
[13]See, eg, R v Davison (1954) 90 CLR 353 at 368.
Despite the requirements of Ch III of the Constitution, namely, that the Commonwealth Parliament may invest federal courts only with jurisdiction in respect of the matters set out in ss 75 and 76, some provisions of the Act which use the term "jurisdiction" can only loosely – or at all events inferentially – be regarded as defining the jurisdiction of the Family Court with respect to such "matters". Thus, s 67ZC, a key provision in this appeal, declares:
"(1)In addition to the jurisdiction that a court has under this Part in relation to children, the court also has jurisdiction to make orders relating to the welfare of children.
(2)In deciding whether to make an order under subsection (1) in relation to a child, a court must regard the best interests of the child as the paramount consideration."
Under the Constitution, the Family Court, as a federal court, may only be invested with jurisdiction that the Parliament has defined by a law with respect to one of the "matters" mentioned in s 75 or s 76 of the Constitution. In this case, the only relevant "matter" is a "matter ... arising under any laws made by the Parliament"[14]. The "welfare of children" is not a matter mentioned in s 75 or s 76 of the Constitution. Indeed, it is not a matter mentioned in s 51 of the Constitution, the chief provision which invests the federal Parliament with legislative power. Section 67ZC also does not itself expressly give jurisdiction in respect of a "matter": it does not refer to any substantive rights, privileges, duties or liabilities or the persons who can apply for or be made subject to an order under the section.
[14]Constitution, s 76(ii).
However, this Court has long recognised that the requirements of s 77 of the Constitution may be satisfied even though jurisdiction in respect of a matter is defined or invested only inferentially. The inference may be drawn from the nature of a remedy granted[15] or from other provisions in the legislation that confer rights or impose duties or liabilities on persons[16]. Thus, in Hooper v Hooper[17], this Court held that federal jurisdiction was invested in the Supreme Courts of the States by a combination of two sections of the Matrimonial Causes Act 1945 (Cth), namely ss 10 and 11. The first section, s 10, authorised a person domiciled in one State but resident in another State to commence proceedings in respect of a "matrimonial cause", as defined, in the Supreme Court of the State of residence. The second section, s 11, gave that person the rights that he or she had under the law of the State of domicile. In a unanimous judgment, this Court stated[18]:
"A substantive 'law of the Commonwealth' is thus enacted, and, whenever a 'matrimonial cause' is instituted putting any of those rights in suit, there is a 'matter' which 'arises' under that law of the Commonwealth. And 'with respect to' that 'matter' State courts may be lawfully invested with federal jurisdiction under s 77(iii) of the Constitution."
[15]R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141.
[16]Hooper v Hooper (1955) 91 CLR 529.
[17](1955) 91 CLR 529.
[18]Hooper v Hooper (1955) 91 CLR 529 at 536.
Similarly, in R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett[19], this Court held that inferentially Parliament had conferred jurisdiction with respect to a "matter" mentioned in ss 75 and 76. In Barrett, s 58E of the Commonwealth Conciliation and Arbitration Act 1904 (Cth) empowered the Commonwealth Court of Conciliation and Arbitration to "make an order giving directions for the performance or observance of any of the rules of an organization by any person who is under an obligation to perform or observe those rules." The prosecutor objected that, although s 58E defined the jurisdiction of a federal court, it did not do so "with respect to" any of the matters mentioned in ss 75 and 76 of the Constitution. This Court unanimously rejected that objection. Dixon J said[20] that s 58E "must be taken to perform a double function, namely to deal with substantive liabilities or substantive legal relations and to give jurisdiction with reference to them." After referring to two forms that legislation may take, his Honour said[21]:
"But, under either form of legislation, it is quite clear that a liability is imposed and that the liability accordingly supplies an appropriate subject or 'matter' upon which 'judicial power' or 'jurisdiction' may operate, whether the jurisdiction is given in the same breath or quite independently."
[19](1945) 70 CLR 141.
[20]R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141 at 165.
[21]R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141 at 166.
In contrast, s 67ZC does not itself impose any substantive liabilities or duties or confer rights or privileges on any person. Standing alone, therefore, s 67ZC does not confer jurisdiction in respect of a "matter" arising under a law of the Parliament because it does not confer rights or impose duties on anyone. The "jurisdiction" conferred by s 67ZC is therefore not comparable with those provisions considered by this Court in Barrett and Hooper. Moreover, unless it were supported by the external affairs power[22] or a reference from the States[23] or was read down to refer to the parties to a marriage[24], it could not constitutionally confer any rights or impose any duties in respect of the welfare of children.
[22]Constitution, s 51(xxix).
[23]Constitution, s 51(xxxvii).
[24]Secretary, Department of Health and Community Services v JWB and SMB (Marion's Case) (1992) 175 CLR 218 at 257.
Despite some similarities to this case, the principal judgment of Mason CJ, Dawson, Toohey and Gaudron JJ in this Court in Marion's Case[25] does not support a finding that s 67ZC is a source of power and also operates to confer jurisdiction for the purpose of Ch III of the Constitution. In Marion's Case, this Court held that the Family Court had jurisdiction under its "welfare jurisdiction" to authorise the carrying out of a sterilisation procedure upon a child of a marriage. Marion's Case arose out of a claim by the parents of the child for an order authorising the sterilisation. In the alternative, the parents sought a declaration that it was lawful for them to consent to the performance of those procedures[26]. The Secretary of the Department of Health and Community Services of the Northern Territory represented the child in the proceedings. The parents' claim gave rise to two main questions:
(1)Could the parents lawfully authorise the sterilisation without an order of a court?
(2)If not, did the Family Court have jurisdiction to give consent to the sterilisation?
[25](1992) 175 CLR 218.
[26]Marion's Case (1992) 175 CLR 218 at 221.

This Court held that the Family Court had jurisdiction to give consent to the sterilisation. In their joint judgment, Mason CJ, Dawson, Toohey and Gaudron JJ said[27], in a passage with which McHugh J agreed[28]:
[27]Marion's Case (1992) 175 CLR 218 at 257.
[28]Marion's Case (1992) 175 CLR 218 at 318.
"As the Family Law Act now stands, s 63(1) confers jurisdiction on the Family Court 'in relation to matters arising under this Part'. Section 64(1) of the Act provides:
'In proceedings with respect to the custody, guardianship or welfare of, or access to, a child –
...
(c)... the court may make such order in respect of those matters as it considers proper, including an order until further order.'
The sub-section does not in terms confer jurisdiction on the Court but it confers power to make orders and presupposes jurisdiction.
Whether the source of jurisdiction is to be found primarily in s 64 along with s 63(1) as the appellant argued, or in a much wider range of sections in Pt VII as the Commonwealth argued, it is clear that the welfare of a child of a marriage is a 'matter' which arises under Pt VII for the purposes of s 63(1) and is, therefore, an independent subject which may support proceedings before the Family Court. Although there are limits on that jurisdiction, there is no doubt that it encompasses the circumstances of the present case." (emphasis added, footnote omitted)
Section 63E of the Act, as it then provided, gave the parents, as guardians of the child, responsibility for the long-term welfare of the child and all the powers, rights and duties that, apart from the Act, vested by law or custom in a guardian. Because the Act vested those rights, powers and duties and that responsibility in the parents, a controversy between the parents and the Secretary, as the child's representative, concerning the right of the parents to authorise her sterilisation gave rise to a "matter" for the purpose of Ch III of the Constitution. Hence, the first of the two main questions gave rise to a "matter" within the meaning of s 77 of the Constitution.
The second question also gave rise to such a "matter". Section 63E made the parents responsible for the long-term welfare of the child, and s 64 authorised the Family Court to make orders for the welfare of the child. At least by implication, Pt VII of the Act gave the parents the right to seek an order to advance or protect the welfare of the child. Accordingly, the second question in Marion's Case concerned a "right or privilege or protection given by law"[29]. It was analogous to those "matters" concerning children over which the Court of Chancery has long exercised parens patriae jurisdiction.
[29]In re Judiciary and Navigation Acts (1921) 29 CLR 257 at 266.
It is beside the point whether an application for such an order is or is not opposed, or involves or does not involve a lis inter partes in an application, such as that involved in Marion's Case. As Dixon CJ and McTiernan J pointed out in R v Davison[30], courts make many judicial orders that involve no lis inter partes or adjudication of rights, yet they exercise judicial power. Further, any "matter" that involves the exercise of judicial power and answers one or more of the subject matters described in s 75 or s 76 of the Constitution is necessarily a "matter" for the purpose of s 77 of the Constitution. After referring to many well-known definitions of judicial power, Dixon CJ and McTiernan J said[31]:
"It may be said of each of these various elements that it is entirely lacking from many proceedings falling within the jurisdiction of various courts of justice in English law. In the administration of assets or of trusts the Court of Chancery made many orders involving no lis inter partes, no adjudication of rights and sometimes self-executing. Orders relating to the maintenance and guardianship of infants, the exercise of a power of sale by way of family arrangement and the consent to the marriage of a ward of court are all conceived as forming part of the exercise of judicial power as understood in the tradition of English law. Recently courts have been called upon to administer enemy property. In England declarations of legitimacy may be made. To wind up companies may involve many orders that have none of the elements upon which these definitions insist. Yet all these things have long fallen to the courts of justice. To grant probate of a will or letters of administration is a judicial function and could not be excluded from the judicial power of a country governed by English law."
[30](1954) 90 CLR 353 at 368.
[31]R v Davison (1954) 90 CLR 353 at 368.
The joint judgment in Marion's Case regarded the application in that case as being analogous to some of the applications for orders traditionally made to the Court of Chancery. Their Honours stated that the "welfare jurisdiction" was "similar to the parens patriae jurisdiction"[32] of the Court of Chancery. They stated further[33]:
"No doubt the jurisdiction over infants is for the most part supervisory in the sense that the courts are supervising the exercise of care and control of infants by parents and guardians. However, to say this is not to assert that the jurisdiction is essentially supervisory or that the courts are merely supervising or reviewing parental or guardian care and control. As already explained, the parens patriae jurisdiction springs from the direct responsibility of the Crown for those who cannot look after themselves; it includes infants as well as those of unsound mind. So the courts can exercise jurisdiction in cases where parents have no power to consent to an operation, as well as cases in which they have the power." (footnote omitted)
[32]Marion's Case (1992) 175 CLR 218 at 258.
[33]Marion's Case (1992) 175 CLR 218 at 258-259.
This passage, and the last sentence in particular, should not be read, however, as suggesting that the Family Court had a welfare jurisdiction that was at large. Earlier, the joint judgment recognised this when their Honours said that "there are limits on that jurisdiction"[34]. The above passage should not be read, therefore, as suggesting that the Family Court's welfare jurisdiction authorises orders that are divorced from the determination of "some immediate right, duty or liability"[35] of the parties to a controversy or that are not analogous to those exceptional orders traditionally made by courts exercising judicial power. Their Honours are hardly likely to have overlooked that there can be no conferral of federal jurisdiction unless there is a "matter" within the meaning of ss 75 and 76 of the Constitution.
[34]Marion's Case (1992) 175 CLR 218 at 257.
[35]In re Judiciary and Navigation Acts (1921) 29 CLR 257 at 265.
It was common ground in Marion's Case that the Family Court had jurisdiction to authorise the sterilisation of a child[36]. As a result, this Court was not concerned to articulate definitively the jurisdiction of the Family Court in respect of the welfare of a child. However, the effect of s 77 of the Constitution is that, for federal courts, the jurisdiction must be defined with respect to a right, privilege, duty or liability. Ordinarily, this means that the law defining jurisdiction must identify the person or persons who have the benefit or burden of the right, privilege, duty or liability. In some cases, the law defining jurisdiction may grant a right or privilege without imposing any corresponding duty or liability on another person. The holding of the Court in Marion's Case is an example. Such cases are nevertheless rare and are recognised only for historical reasons.
[36](1992) 175 CLR 218 at 254.
Accordingly, the failure of s 67ZC, standing alone, to define the Family Court's jurisdiction with respect to a s 75 or s 76 matter is not itself decisive against the respondents' contention that the Family Court had jurisdiction in the present matter. Other provisions of the Act may supply the elements of a "matter". The ultimate question then is whether, read as a whole, the Act defines the jurisdiction of and thereby – for constitutional purposes – confers jurisdiction on the Family Court to determine the present dispute between the respondent children and the Minister. The question may be posed in two different ways:
(1)Does the Act confer jurisdiction on the Family Court to decide that the children have a right as against the Minister to be released from immigration detention?
(2)Does the Act confer jurisdiction on the Family Court to determine that the children have a right to require the Minister to act in their best interests while they are in immigration detention?
The valid application of s 67ZC, therefore, is dependent upon some other provision in Pt VII of the Act creating a "matter" within the meaning of s 75 or s 76 of the Constitution to which the jurisdiction conferred by s 67ZC can attach. Consequently, it is necessary to turn to other provisions in the Act – particularly Pt VII – to determine the jurisdiction, if any, that s 67ZC validly confers. This step is required in order to ascertain whether one or more provisions enacts substantive rights or privileges or imposes substantive duties which constitute a "matter" under s 75 or s 76 of the Constitution and which can be inferentially linked to s 67ZC. If this step is not taken, it is impossible to identify the "matters" concerning "the welfare of children" which arise under a law of the Parliament for the purpose of s 76(ii) of the Constitution and the jurisdiction of the Family Court that the Parliament has defined in respect of those matters for the purpose of s 77(i) of the Constitution.
Relevant provisions of the Act
Section 21 of the Act creates the Family Court of Australia and declares it to be a superior court of record. Sections 31 and 33 set out the original jurisdiction of the Family Court. Section 31(1)(a) confers jurisdiction on the Family Court with respect to "matters arising under this Act or under the repealed Act in respect of which matrimonial causes are instituted or continued under this Act". Section 31(1)(c) confers jurisdiction in respect of matters arising under a law of the Parliament of a Territory other than the Northern Territory. Section 31(1)(d) confers jurisdiction on the Family Court in relation to matters in respect of which proceedings may be instituted in that Court. Section 33 confers jurisdiction on the Court in respect of matters associated with matters in which the jurisdiction of the Court is invoked. Section 40(1) declares that "[t]he jurisdiction of the Family Court under this Act shall not be exercised except in accordance with Proclamations under this section."
Part V of the Act is concerned with applications relating to matrimonial causes. Despite the conferral of jurisdiction in respect of such matters by s 31, s 39 confers jurisdiction on the Family Court inter alia "with respect to matters arising under this Act in respect of which ... matrimonial causes are instituted under this Act [or] ... continued in accordance with section 9"[37]. Section 4 of the Act contains a definition of "matrimonial cause"; it does not extend to disputes concerning the welfare of children.
[37]Section 39(5).
Part VI is concerned with applications for the dissolution and nullity of marriage. Unlike Pt V, Pt VI does not contain an express grant of jurisdiction.
Nothing in any of Pts I to VI of the Act, with the exception of s 31 in Pt IV, throws any light on the question of the Family Court's jurisdiction in this case.
As we have already indicated, Pt VII is concerned with children. Like Pt V, and despite the terms of s 31, Pt VII contains a number of conferrals of jurisdiction. None of them expressly indicates or inferentially suggests that the Family Court has jurisdiction to make orders against the Minister. On the contrary, the various Divisions and subdivisions of Pt VII show that the main object of the Part is to require parents to act in ways that will advance the best interests of their children. Indeed, s 60B(1) declares that the object of the Part is to:
"ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities concerning the care, welfare and development of their children."
Nor, when construed as a whole, does anything in Pt VII suggest that the Part was intended to give the Family Court a general jurisdiction over children with the power to make an order against individuals whenever the best interests of a child require such an order to be made.
It is appropriate to consider each Division in turn.
Division 1 of Pt VII is introductory. It contains s 60F, which extends, for the purpose of the Act, the meaning of "a child of a marriage". The term includes a reference to a child adopted since the marriage by the husband and wife, a child of the husband and wife born before the marriage and a child of the husband and wife who is born as a result of artificial conception procedures[38].
[38]Section 60H(1).
Division 2 is concerned with parental responsibility. It contains s 61B, which defines "parental responsibility" in relation to a child to mean "all the duties, powers, responsibilities and authority which, by law, parents have in relation to children."
Division 3 deals with the counselling of people in relation to matters affecting children. Its chief concern is with the duties and powers of the Family Court and its officers in respect of counselling those who are involved in proceedings under Pt VII.
Division 4 is concerned with parenting plans. Section 63B states that the parents of a child are encouraged to agree about matters concerning the child rather than seeking a court order and, in reaching an agreement, to regard the best interests of the child as the paramount consideration.
Division 5 addresses parenting orders. Section 64B(2) defines a parenting order as one that deals with the person or persons with whom a child is to live, the contact between a child and another person or persons, the maintenance of a child or any other aspect of parental responsibility for a child. Section 64B subdivides parenting orders into residence orders, contact orders, child maintenance orders[39] and specific issues orders depending upon the subject matter of the particular order.
[39]A child maintenance order is a parenting order that deals with the maintenance of a child: s 64B(5).
Division 6 is concerned with parenting orders other than child maintenance orders. Section 65C permits either or both of the child's parents, the child, a grandparent of the child or any other person concerned with the care, welfare or development of the child to apply for a parenting order. Such orders include orders concerning residence, contact and taking and sending children from Australia. Sections 65M, 65N and 65P oblige persons not to act contrary to, or hinder or impair, such orders.
Division 7 is concerned with child maintenance orders. Section 66B(1) declares that the principal object of the Division "is to ensure that children receive a proper level of financial support from their parents." Section 66F states that either or both of the child's parents, the child, a grandparent of the child or any other person concerned with the care, welfare or development of the child may apply to a court for a child maintenance order.
Division 8 is concerned with other matters relating to children, including the liability of an unmarried father to contribute towards child bearing expenses, orders concerning the location and recovery of children and the reporting of alleged acts of child abuse. Section 67ZC – which is the key section in this case – is contained in this Division and, as we have said, gives the Family Court "jurisdiction" to make orders relating to the welfare of children. In deciding whether to make an order under that section, "a court must regard the best interests of the child as the paramount consideration."[40] Subdivision B of Div 10 of Pt VII prescribes rules for determining what is in a child's best interests.
[40]Section 67ZC(2).
Division 9 is concerned with the institution of proceedings for injunctions in relation to children. Division 10 also addresses separate representation of children in curial proceedings. Division 11 is concerned with the relationship between contact orders and family violence orders.
Thus, the object of Pt VII and the contents of Divs 1 to 11 read as a whole suggest that, except where expressly mentioned, Pt VII is concerned with proceedings between the parents of children and also with the obligations of parents to children.
Division 12 of Pt VII (ss 69A-69ZK) is headed "Proceedings and jurisdiction". Subdivision B of that Division regulates the institution of legal proceedings under Pt VII. Subdivision C confers jurisdiction on the Family Court, each State Family Court and the Supreme Court of the Northern Territory in relation to matters arising under Pt VII. Section 69H(1), which is in subdiv C, specifically confers jurisdiction "on the Family Court in relation to matters arising under this Part." Section 69M declares that the "jurisdiction conferred on or invested in a court by this Division is in addition to any jurisdiction conferred on or invested in the court apart from this Division." Subdivision D is concerned with presumptions of parentage. Subdivision E is concerned with evidence concerning the parentage of a child.
Subdivision F is concerned with the application of Pt VII to the States and Territories and is headed "Extension, application and additional operation of Part". The subdivision contains six sections, ss 69ZE-69ZK. Subject to the terms of the section and s 69ZF, s 69ZE extends the operation of Pt VII to New South Wales, Victoria, Queensland, South Australia and Tasmania[41]. Subject to the same provisions, s 69ZE also extends the operation of Pt VII to Western Australia if the Parliament of that State refers to the Parliament of the Commonwealth certain matters concerning children or if it adopts Pt VII[42]. Those matters are: (1) "the maintenance of children and the payment of expenses in relation to children or childbearing"; and (2) "parental responsibility for children". Western Australia has not made such a referral. Part VII extends to a State only if an Act of the Parliament of the State either refers to the Parliament of the Commonwealth those matters or "matters that include, or are included in, those matters" or adopts Pt VII[43]. Further, the Part extends to a State only in so far as it makes provision with respect to the matters that are referred to the Parliament of the Commonwealth or matters that are incidental to the execution of any power vested in the Commonwealth Parliament in relation to those matters[44]. South Australia has not referred the matter of the welfare of children to the Parliament of the Commonwealth.
[41]Section 69ZE(1).
[42]Section 69ZE(2).
[43]Section 69ZE(3).
[44]Section 69ZE(4).
Section 69ZG applies Pt VII to the Territories.
Section 69ZF, which empowers the Governor-General by proclamation to "declare that all the child welfare law provisions of this Part extend to a specified State"[45], has no application in the present case.
[45]Section 69ZF(1).
Section 69ZJ confers jurisdiction on courts where jurisdiction pursuant to Pt VII has been invested in or conferred on the court in matters between residents of different States with respect to the maintenance of children, the payment of expenses in relation to children or child bearing, or parental responsibility in relation to children.
Section 69ZH provides:
"Additional application of Part
(1)Without prejudice to its effect apart from this section, this Part also has effect as provided by this section.
(2)By virtue of this subsection, Divisions 2 to 7 (inclusive) (other than Subdivisions C, D and E of Division 6 and sections 66D, 66M and 66N), Subdivisions C and E of Division 8, Divisions 9, 10 and 11 and Subdivisions B and C of Division 12 (other than section 69D) have the effect, subject to subsection (3), that they would have if:
(a)each reference to a child were, by express provision, confined to a child of a marriage; and
(b)each reference to the parents of the child were, by express provision, confined to the parties to the marriage.
(3)The provisions mentioned in subsection (2) only have effect as mentioned in that subsection 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:
(i)the maintenance of the child and the payment of expenses in relation to the child; or
(ii)the residence of the child, contact between the child and other persons and other aspects of the care, welfare and development of the child; and
(b)other aspects of duties, powers, responsibilities and authority in relation to the child:
(i)arising out of the marital relationship; or
(ii)in relation to concurrent, pending or completed proceedings between those parties for principal relief; or
(iii)in relation to a dissolution or annulment of that marriage, or a legal separation of the parties to the marriage, that is effected in accordance with the law of an overseas jurisdiction and that is recognised as valid in Australia under section 104.
(4)By virtue of this subsection, Division 1, Subdivisions C, D and E of Division 6, section 69D, Subdivisions D and E of Division 12 and Divisions 13 and 14 and this Subdivision, have effect according to their tenor."

Section 67ZC is contained in subdiv E of Div 8. Thus, s 69ZH gives s 67ZC an "effect" as if the references to "children" and "child" in that section were "confined to a child of a marriage"[46] and the section made "provision with respect to the parental responsibility of the parties to a marriage for a child of the marriage"[47]. However, s 69ZH(1) declares: "Without prejudice to its effect apart from this section, this Part also has effect as provided by this section." The terms of s 69ZH(1) suggest, therefore, that the "jurisdiction" and powers conferred by s 67ZC are not necessarily restricted to those situations contemplated by sub‑ss (2) and (3) of s 69ZH. Hence, the jurisdiction and powers conferred by s 67ZC may have two operations: the restrictive operation given to them by those sub-sections and such wider operation as it is possible to deduce from provisions of Pt VII other than s 69ZH. The majority of the Full Court held that s 67ZC had the wider operation.
[46]Section 69ZH(2).
[47]Section 69ZH(3).
Nicholson CJ and O'Ryan J stated[48] that "the source of power for the court to exercise its jurisdiction over children of a marriage ... is to be found in subdiv C of Pt VII and particularly in ss 69H(1) and 69M." In our view, however, ss 69H(1) and 69M, even when read together, do not operate to confer jurisdiction on the Court in respect of "matters" for the purpose of s 77 of the Constitution. As we have indicated, s 69H(1) confers jurisdiction on the Family Court "in relation to matters arising under this Part." However, s 69H(1) is not a self-contained conferral of federal jurisdiction: the "matters" over which the Court has jurisdiction can be identified only by reference to other provisions of Pt VII. Thus, s 69H requires a search for a relevant "matter" arising under Pt VII. It no more determines the question of the Family Court's jurisdiction in respect of children than does the reference to "jurisdiction" in s 67ZC. Section 69M, to which the majority also referred as giving jurisdiction, does not take the position any further. It simply declares that the jurisdiction conferred or invested by Div 12 "is in addition to any jurisdiction conferred on or invested in the court apart from this Division."
[48]B v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 604 at 623.
The Minister contends that the source of the relevant jurisdiction of the Family Court in the present case is Div 12 and not Div 8 (s 67ZC) or Div 9 (s 68B) as the respondents contend. In our opinion, the Minister is correct in asserting that on their face neither Div 8 nor Div 9 confers any relevant jurisdiction in this case – relevant in the sense that they give jurisdiction with respect to a matter "mentioned" in s 76 of the Constitution. The Minister is also almost certainly right in contending that it is Div 12 that confers the relevant jurisdiction. This contention of the Minister does not sit well with the declaration in s 69ZH(1), however, if s 67ZC, for example, has "effect" independently of s 69ZH. Nor does it sit well with the statement in par 319 of the Explanatory Memorandum to the Family Law Reform Bill 1994 (Cth) which inserted s 67ZC into the Act. That paragraph provided[49]:
"The new section 67ZC provides the court with jurisdiction relating to the welfare of children in addition to the jurisdiction that the court has under Part VII in relation to children. This jurisdiction is the parens patriae jurisdiction explained by the High Court in [Marion's Case]." (emphasis added)
[49]Family Law Reform Bill 1994 (Cth) Explanatory Memorandum at [319].
On the other hand, despite s 69ZH(1), the terms of sub-ss (2), (3) and particularly (4) of s 69ZH suggest that s 67ZC is confined by the terms of s 69ZH(2) and (3). Section 69ZH(4) declares that various provisions of Pt VII have effect according to their tenor. If the provisions identified in s 69ZH(2) and (3) operated independently of Div 12, this declaration would be superfluous. Importantly, the terms of s 69ZH(4) also necessarily imply that the various provisions named in s 69ZH(2) – including s 67ZC – do not operate according to their tenor. If they did, Parliament's enactment of s 69ZG and s 69ZH would be unnecessary.
Ultimately, though, in the view that we take of Pt VII, it does not matter whether one accepts the Minister's or the Full Court's construction of s 69ZH. Even if s 67ZC has an operation independently of the terms of s 69ZH(2) and (3), the terms of Pt VII, read as a whole, and the constitutional imperatives of Ch III confine the Family Court's jurisdiction and powers with respect to the welfare of the children in this case in the same way as do s 69ZH(2) and (3).
By necessary implication, the parents of a child may seek an order under s 67ZC whether the operation of that section is confined by s 69ZH(2) and (3) or whether it has an operation independently of those sub-sections. The right to seek that order arises from various provisions in Pt VII, but particularly from ss 60B, 61B and 61C. Section 60B(1) declares that the object of Pt VII:
"is to ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children."
Section 61C(1) declares that "[e]ach of the parents of a child who is not 18 has parental responsibility for the child." Section 61B defines this parental responsibility in Pt VII to mean "all the duties, powers, responsibilities and authority which, by law, parents have in relation to children." The provisions of these three sections provide ample support for an application by a parent for an order under s 67ZC, whether the source of the jurisdiction is Div 12 generally or s 69H in particular.
By necessary implication, the Family Court may also make an order under s 67ZC that is binding on a parent. Under that section it may also make orders such as those made in Marion's Case or those analogous to orders traditionally made by courts exercising the parens patriae jurisdiction. Nothing in that section or in the rest of Pt VII, however, suggests that the Family Court has jurisdiction to make orders binding on third parties whenever it would advance the welfare of a child to do so. Nothing in s 67ZC, or in Pt VII generally, imposes – expressly or inferentially – any duty or liability on third parties to act in the best interests of or to advance the welfare of a child. Except where Pt VII expressly imposes obligations on third parties – for example, ss 65M, 65N and 65P – that Part is concerned with the relationship between parents and children and parents' duties in respect of their children. We have already set out s 60B(1), which states the object of Pt VII. Section 60B(2) declares:
"The principles underlying these objects are that, except when it is or would be contrary to a child's best interests:
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development; and
(c)parents share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children."
The orders sought in the present case are not concerned with the relationship between the parents of the children. They do not seek to enforce duties or obligations owed by the parents to the children. They are not analogous to the orders sought in Marion's Case, which did not impose any duty or liability on a third party. The object of the orders in the present case is to require the Minister to take or to refrain from taking action in respect of the children. Nothing in Pt VII gives any support for the making of such an order or orders against the Minister. Consequently, no provision or combination of provisions in Pt VII defines the jurisdiction of the Family Court with respect to a matter involving the Minister. So far as the Minister is concerned, the Act has not defined any jurisdiction of the Family Court with respect to a matter mentioned in s 75 or s 76 of the Constitution.
It follows that neither s 67ZC nor s 68B of the Act – alone or in combination with s 69H or s 69ZH – gave the Family Court jurisdiction to:
(i)determine the validity of the detention of an unlawful non-citizen child (who was the child of a marriage) under s 196 of the Migration Act; or
(ii)make orders directing officers in the performance of their functions under the Migration Act in relation to such a child.
Orders
The appeal should be allowed. The orders of the Full Court of the Family Court made on 19 June 2003 should be set aside. In place of those orders, there should be substituted an order that the appeal to the Full Court be dismissed. There should be no order in relation to the costs of the appeal to this Court. It was a condition of the grant of the certificate under s 95(b) of the Act that the Minister should pay the reasonable costs of the respondent children and the respondent intervener of and incidental to the appeal to this Court.
GUMMOW, HAYNE AND HEYDON JJ.
The Family Court proceedings
On 31 July 2002, two boys identified as A and M and who were then aged approximately 12 and 14 years, instituted a proceeding in the Family Court of Australia by their mother as their next friend. There were three female siblings, then aged approximately 11, nine and six years. The father was granted leave to intervene and sought orders respecting the five children. It has not been disputed that the children are children of the marriage of the father and the mother.
The children and their parents are unlawful non‑citizens within the meaning of s 14 of the Migration Act 1958 (Cth) ("the Migration Act"). At the time of the institution of the proceeding in the Family Court, the children and their mother were detained at an immigration "detention centre" at Woomera in South Australia which was established under the Migration Act; the father then was living in the general community. By the time of the appeal to the Full Court of the Family Court giving rise to the litigation in this Court, the mother and the children had been transferred to another detention centre in South Australia known as the Baxter Immigration Detention Facility ("Baxter") and the father also was detained at Baxter.
The claims for relief made in the application to the Family Court illuminated the scope of the controversy which constituted the matter in respect of which the Family Court was said to have the necessary federal jurisdiction; if the Family Court had jurisdiction to determine the controversy it would have power in the exercise of that jurisdiction to give the remedies sought[50].
[50]Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559 at 590 [65].
Interim and final orders were sought in the application by A and M that the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") release them from the Woomera detention centre on the ground that, broadly speaking, their continued detention was harmful to their welfare. The orders sought were described by reference to s 68B and s 67ZC of the Family Law Act 1975 (Cth) ("the Family Law Act"). Both provisions appear in Pt VII (ss 60A‑70Q). Part VII, which is headed "Children", comprises 14 Divisions. It was introduced by s 31 of the Family Law Reform Act 1995 (Cth) ("the 1995
[51](1999) 196 CLR 553 at 571‑573 [20]-[26], 594‑596 [103]-[106].
[52](2002) 211 CLR 238 at 250‑251 [53]-[55].
Act") and since has been amended. The structure of Pt VII was described in Northern Territory v GPAO[51] and U v U[52].
The father sought interim and final orders that the five children reside with him or, in the alternative, that orders be made protective of the children whilst they remained in detention. No particular provisions of Pt VII were identified in his application, but in argument in this Court counsel relied principally upon s 67ZC, which was said both to deal with subject-matter and to confer jurisdiction on the Family Court.
On application by the Minister, a judge of the Family Court (Dawe J) dismissed the applications by A and M and by the father. Her Honour did so on the ground that the Family Court did not have any jurisdiction to make any of the orders sought against the Minister.
Appeals to the Full Court of the Family Court succeeded[53]. On 19 June 2003, the Full Court (Nicholson CJ and O'Ryan J; Ellis J dissenting) set aside the orders made by Dawe J and ordered that the applications be remitted for rehearing. Thereafter, and following another successful Full Court appeal, the children were, by order made by the Full Court on 25 August 2003, released from immigration detention pending the final hearing of the applications.
[53]B v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 604. In that appeal, the mother was given leave to add the three daughters as parties.
The authority of the Family Court
The Family Court of Australia is established by s 21 of the Family Law Act as a superior court of record. It follows from the reasoning of this Court in Re Macks; Ex parte Saint[54] that, like the Federal Court of Australia, the Family Court has authority to make decisions as to the existence of its jurisdiction in a matter and that its orders in relation thereto are final and binding unless and until set aside on appeal or pursuant to s 75(v) of the Constitution. The primary questions on this appeal by the Minister thus concern the existence and content of the jurisdiction of the Family Court to entertain the applications made to it. That requires consideration, in particular, of various provisions of Pt VII of the Family Law Act.
[54](2000) 204 CLR 158.
The s 95(b) certificate
The Minister appeals to this Court not upon a grant of special leave made by this Court pursuant to s 95(a) of the Family Law Act but upon a certificate granted by the Full Court of the Family Court under s 95(b) upon application by the Minister. The anomalous nature of s 95(b) and the difficulties to which certificates thereunder may give rise were considered in detail in the joint judgment of five members of this Court in DJL v The Central Authority[55]. That anomaly is the more apparent in the present case, given the remedies available in this Court under s 75(v) of the Constitution for jurisdictional error in the Family Court and the avenues for removal under s 40 of the Judiciary Act 1903 (Cth) upon application by the Attorney-General of the Commonwealth.
[55](2000) 201 CLR 226 at 236‑240 [12]-[23].
The Full Court gave reasons upon the application by the Minister for the certificate. Their Honours said:
"We accept that were we to grant such a certificate, the appeal may be considered by the High Court earlier than if we refuse to do so."
However, the Court also noted:
"[The submission for the Minister was that] it is almost inconceivable that the High Court would not grant Special Leave."
The order of business in this Court is not for the presumption of any intermediate appellate court. There was no good ground for the supposition that s 95(b) confers a power to be exercised by reference to a consideration, false in the event, that, by the grant of a certificate in the place of an application under s 75(v) of the Constitution or an application for removal or a grant of special leave, particular litigation displaces or obtains a priority over consideration by this Court of the many matters of urgent and general public importance that at any time stand in its list.
The appeal to this Court
In this Court no challenge is made to the issue or terms of the s 95(b) certificate and the appeal must be determined upon its merits. Those merits are that the decision of Dawe J as to the absence of jurisdiction in the Family Court was correct and the consequential orders that her Honour made should not have been set aside. Accordingly, the appeal to this Court should be allowed and the orders of Dawe J reinstated. We turn to explain why this is so.
The jurisdiction of the Family Court
It is necessary to begin with the term "jurisdiction", of which it was said in the joint judgment in Lipohar v The Queen[56]:
"It is a generic term, a point made by Isaacs J in Baxter v Commissioners of Taxation (NSW)[57]. It is used in a variety of senses, some relating to geography, some to persons and procedures, others to constitutional and judicial structures and powers. Thus, 'federal jurisdiction' is 'the authority to adjudicate derived from the Commonwealth Constitution and laws'[58] whereas the phrase 'inherent jurisdiction', used in relation to such things as the granting of permanent stays for abuse of process, identifies the power of a court to make orders of a particular description[59].
'Jurisdiction' may be used (i) to describe the amenability of a defendant to the court's writ and the geographical reach of that writ, or (ii) rather differently, to identify the subject matter of those actions entertained by a particular court, or, finally (iii) to locate a particular territorial or 'law area'[60] or 'law district'[61]."
Further, the categories listed in ss 75 and 76 of the Constitution identify the existence of "federal jurisdiction" by a range of characteristics including the character of parties (s 75(iii), (iv)) and the source of the rights and liabilities in contention (s 75(i), s 76(iii)).
[56](1999) 200 CLR 485 at 516‑517 [78]-[79].
[57](1907) 4 CLR 1087 at 1142. In United States v Vanness 85 F 3d 661 at 663(n) (1996), 'jurisdiction' was said to be 'a word of many, too many, meanings'.
[58]Baxter v Commissioners of Taxation (NSW) (1907) 4 CLR 1087 at 1142. See also Ah Yick v Lehmert (1905) 2 CLR 593 at 603; Gould v Brown (1998) 193 CLR 346 at 379.
[59]Williams v Spautz (1992) 174 CLR 509 at 518‑519; Pelechowski v Registrar, Court of Appeal (1999) 198 CLR 435 at 450‑453.
[60]An expression used by the Court in Laurie v Carroll (1958) 98 CLR 310 at 331, with respect to New South Wales and Victoria. See also Breavington v Godleman (1988) 169 CLR 41 at 77, 97, 107.
[61]An expression used by Wilson and Gaudron JJ in Breavington v Godleman (1988) 169 CLR 41 at 87.
In Harris v Caladine[62], Toohey J distinguished between "jurisdiction" in the sense of authority to decide the range of matters which may be litigated before a court and the powers expressly or impliedly conferred by the legislation governing the court. His Honour added[63] that this distinction between jurisdiction and power could not be applied neatly to the notion of the judicial power of the Commonwealth in Ch III of the Constitution. Of that notion, Toohey J said[64]:
"[I]t is not concerned with the jurisdiction of particular courts and is broader than the particular powers that courts have in the exercise of their jurisdiction."
[62](1991) 172 CLR 84 at 136. See also Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559 at 590 [64].
[63](1991) 172 CLR 84 at 137.
[64](1991) 172 CLR 84 at 137.
The determination of the issues which arise on this appeal requires analysis of statute law. That analysis is not assisted by the use of general expressions such as "the welfare jurisdiction" or "the parens patriae jurisdiction" as an encouragement to subside from consideration of the statutory construction question affecting Ch III courts into the broad waters of the general law.

It should be added immediately that in the text of Pt VII itself the various senses of the term "jurisdiction" are not clearly marked. This appeal turns upon the conferral upon the Family Court of the federal jurisdiction for it to adjudicate the controversy with the Minister. However, as will appear, the term "jurisdiction" is used in some provisions of Pt VII more loosely, and to identify the nature of disputed rights and liabilities (eg "the welfare of children") which, by the exercise of legislative power under s 51 of the Constitution, may provide the subject for adjudication, rather than the conferral of federal jurisdiction by a law made in exercise of the legislative power conferred by s 77 of the Constitution.
The institution of the present proceedings invited two inquiries. The first was the source in federal law of the rights and liabilities presented for adjudication. The second was the identification of the federal law made under s 77 which conferred jurisdiction upon the Family Court. The distinction is explained in various authorities, including Hooper v Hooper[65], where the validity of the Matrimonial Causes Act 1945 (Cth) was upheld.
[65](1955) 91 CLR 529 at 535‑536.
In its initial form, the Family Law Act was drawn in a fashion which obscured the distinction between these two steps, namely the identification of a "matter" and the law conferring jurisdiction with respect to it. At bottom, the issues on this appeal require consideration of the text and structure of what is now Pt VII to ascertain whether, as the Minister submits, it is in Div 12 (ss 69A‑69ZK), headed "Proceedings and jurisdiction", rather than in the earlier provisions of Div 8 (ss 67A‑67ZD), headed "Other matters relating to children", and Div 9 (ss 68A‑68C), headed "Injunctions", and containing respectively s 67ZC and s 68B, that the relevant (and limited) conferral of jurisdiction upon the Family Court is to be found.
It is desirable to approach consideration of the text and structure of what is now Pt VII by first referring to some earlier decisions of this Court about the Family Law Act. Those decisions illustrate how that Act, in its earlier forms, has been held to operate in identifying matters and in conferring jurisdiction with respect to them. From there it is convenient to go to the examination of a number of the provisions of Pt VII in order to reveal the place occupied by the particular provisions which are in issue in this appeal. That examination will reveal that the Minister's submission is correct. It is Div 12 which provides the relevant conferral of jurisdiction on the Family Court. The jurisdiction conferred is limited. Neither s 69ZE nor s 69ZH conferred jurisdiction to decide either of the applications which gave rise to this appeal. Section 69ZE confers jurisdiction on the Family Court in matters the subject of a reference by a State of power, and matters incidental to the execution of a power vested by the Constitution in the federal Parliament in relation to those matters. Neither of the applications which give rise to this appeal was such a matter, the reference by South Australia being limited to matters of maintenance, custody, guardianship and access. Section 69ZH confines the operation of s 67ZC to the parental responsibilities of the parties to a marriage for a child of the marriage.
Dowal v Murray[66]
[66](1978) 143 CLR 410.
It is convenient first to consider some aspects of the Family Law Act in its pre‑1995 form. The difficulties referred to above appeared shortly after the commencement of the Family Law Act with such decisions as Russell v Russell[67] and Dowal v Murray, which were discussed in argument on the present appeal.
[67](1976) 134 CLR 495.
Dowal decided that s 61(4), as it appeared in the Family Law Act as first enacted, was a valid exercise of the power conferred by s 51(xxi) of the Constitution to make laws with respect to marriage. Section 61(1) stated the general proposition:
"Subject to any order of a court for the time being in force, each of the parties to a marriage is a guardian of any child of the marriage who has not attained the age of 18 years and those parties have the joint custody of the child."
This was followed by s 61(4) which provided:
"On the death of a party to a marriage in whose favour a custody order has been made in respect of a child of the marriage, the other party to the marriage is entitled to the custody of the child only if the court so orders on application by that other party and, upon such an application, any other person who had the care and control of the child at the time of the application is entitled to be a party to the proceedings."
One argument for the Commonwealth was that s 61(4) both created the relevant rights and obligations and conferred jurisdiction on the Family Court to give effect to them[68]. Murphy J appears to have accepted that construction[69], but Gibbs ACJ and Jacobs J[70] located the conferral of jurisdiction in s 39, which provided for the institution of a "matrimonial cause" in the Family Court, and in par (f) of the definition of that expression then appearing in s 4(1).
Marion's Case[71]
[68]See Dowal v Murray (1978) 143 CLR 410 at 413, 437.
[69](1978) 143 CLR 410 at 428‑429.
[70](1978) 143 CLR 410 at 417, 427 respectively.
[71]Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218.
Further questions of construction appeared in Marion's Case. The structure of the legislation considered in Marion's Case sufficiently resembles the present Pt VII to merit close consideration. The Family Law Act then was in the form taken after the Family Law Amendment Act 1983 (Cth) and the further amendments by the Family Law Amendment Act 1987 (Cth) ("the 1987 Act").
The 1987 Act had gathered in Pt VII most of the provisions of the statute respecting children. In particular, the Parliament exercised under s 51(xxxvii) of the Constitution the power with respect to the references which then had been made in like terms by the Parliaments of four States, New South Wales, Victoria, South Australia and Tasmania. A law made pursuant to a reference shall, in the words of par (xxxvii), "extend only to States by whose Parliaments the matter is referred, or which afterwards adopt the law". The references in question here commonly were understood as dealing with ex‑nuptial children, but in truth were drawn in broader terms to overcome some of the limitations and uncertainties respecting the scope of the marriage power in s 51(xxi). These had been revealed in a series of decisions in this Court, perhaps beginning with R v Lambert; Ex parte Plummer[72] and Vitzdamm-Jones v Vitzdamm-Jones[73] and culminating in Re F; Ex parte F[74].
[72](1980) 146 CLR 447.
[73](1981) 148 CLR 383.
[74](1986) 161 CLR 376.
For example, s 3(1) of the Commonwealth Powers (Family Law) Act 1986 (SA) ("the SA Act") had referred "to the extent to which they are not otherwise included in the legislative powers of the Parliament of the Commonwealth" matters being:
"(a) the maintenance of children and the payment of expenses in relation to children or child bearing;
(b) the custody and guardianship of, and access to, children". (emphasis added)
Part VII, as then introduced in the 1987 Act, comprised 14 Divisions. Division 2 (ss 60E‑60H) was headed "Extension, application and additional operation of Part". Section 60E reflected the terms of the references of power by the States, but also provided (s 60E(3)) that "[t]his Part applies in and in relation to the Territories". Section 60G applied the terms of the references to actions in diversity jurisdiction between residents of different States. Section 60F invoked the legislative powers of the Parliament with respect both to marriage and to divorce and matrimonial causes (s 51(xxii)). In so doing, the Parliament took perhaps a cautious view of the extent of the marriage power, in particular by limiting the effect of other Divisions (including Div 4) so that they applied "only in so far as they make provision with respect to the rights and duties of the parties to the marriage in relation to the child" (s 60F(2)).
Division 4 (ss 63‑63D) was headed "Jurisdiction of Courts". It conferred federal jurisdiction on the Family Court (among other courts) in relation to "matters arising under this Part" (s 63(1)); that is to say, matters arising in the light of the limitations spelled out in Div 2. In Marion's Case, these limitations were of no great moment. This was because the parents who instituted the proceeding and their infant child all resided in the Northern Territory[75], and, as indicated, Pt VII applied there (s 60E(3)). It no doubt was for that reason that, in the judgments in this Court, attention focused upon s 63(1) in its operation, not with Div 2, but with the provisions of Div 5 (ss 63E‑66), headed "Custody and guardianship of children", and, in particular, s 64.
[75](1992) 175 CLR 218 at 229.
In general outline, the scheme of Pt VII as it now stands resembles that of Pt VII introduced by the 1987 Act. Subdivision F of Div 12 resembles the previous Div 2 and subdiv C of Div 12 resembles the previous Div 4. Section 67ZC, upon which much reliance was placed in this Court by the respondents, is found in one of the Divisions descending from the previous Div 5. That had included s 64, to which reference was made in Marion's Case.
The Court concluded in Marion's Case that what had been achieved "was a vesting in the Family Court of the substance of the parens patriae jurisdiction, of which one aspect is the wardship jurisdiction"[76]. That statement in the joint judgment of Mason CJ, Dawson, Toohey and Gaudron JJ was preceded by the passage[77]:
[76](1992) 175 CLR 218 at 257.
[77](1992) 175 CLR 218 at 257.
"As the Family Law Act now stands, s 63(1) confers jurisdiction on the Family Court 'in relation to matters arising under this Part'. Section 64(1) of the Act provides:
'In proceedings with respect to the custody, guardianship or welfare of, or access to, a child –
...
(c)... the court may make such order in respect of those matters as it considers proper, including an order until further order.'
The sub‑section does not in terms confer jurisdiction on the Court but it confers power to make orders and presupposes jurisdiction.
Whether the source of jurisdiction is to be found primarily in s 64 along with s 63(1) as the appellant argued, or in a much wider range of sections in Pt VII as the Commonwealth argued[78], it is clear that the welfare of a child of a marriage is a 'matter' which arises under Pt VII for the purposes of s 63(1) and is, therefore, an independent subject which may support proceedings before the Family Court. Although there are limits on that jurisdiction, there is no doubt that it encompasses the circumstances of the present case." (emphasis added)
[78]See, eg, ss 64(1B), 65, 70C.
Their Honours went on to say that what they had identified as "the welfare jurisdiction" conferred in this way upon the Family Court was "similar to the parens patriae jurisdiction"[79].
P v P[80]
[79](1992) 175 CLR 218 at 258.
[80](1994) 181 CLR 583.
This case also was decided when Pt VII was in the form taken after the 1987 Act. In the joint judgment, Mason CJ, Deane, Toohey and Gaudron JJ said that Marion's Case established that Pt VII[81]:
"has invested the Family Court with a welfare jurisdiction in respect of a child of a marriage which encompasses the substance of the traditional parens patriae jurisdiction freed from the preliminary requirement of a wardship order[82]".
Their Honours referred to s 63(1) and s 64(1)(c) of the Family Law Act and, in passing, to s 60F. That latter provision was the only section in Div 2 to which reference was made. Unlike the circumstances in Marion's Case, the general provision with respect to the Territories made elsewhere in Div 2 (in s 60E(3)) was not attracted. The child in question in P v P resided in New South Wales, as did the applicant mother[83]. The father was a respondent, but supported the application; the marriage of the parents had been dissolved by Family Court order in 1990, three years before the application[84].
[81](1994) 181 CLR 583 at 598.
[82](1992) 175 CLR 218 at 256, 294, 318.
[83](1994) 181 CLR 583 at 591.
[84](1994) 181 CLR 583 at 591.
In those circumstances, this Court appears to have proceeded on the footing that, by virtue of s 60F(2), s 64(1)(c) had effect with reference to a child of a marriage in so far as, among other things, it made provision with respect to the rights and duties of the parties to the marriage in relation to the welfare of the child. That this is so is confirmed by later remarks of their Honours concerning the scope of the marriage power as having supplied (with s 122) an additional basis for the decision in Marion's Case[85].
AMS v AIF[86]
[85](1994) 181 CLR 583 at 599‑600.
[86](1999) 199 CLR 160.
The subsequent decision of this Court in AMS v AIF involved consideration of the structure of the Family Law Act following its amendment by the 1987 Act. The significance of what was then Div 2 of Pt VII, including s 60E(3) which dealt with the Territories, for the construction of the general custody and guardianship provisions of Div 5 was stressed in the judgments[87]. As will appear, comparable considerations apply to Pt VII in its post‑1995 form.
[87](1999) 199 CLR 160 at 170‑171 [14]-[18], 242 [250]-[251].
In both its manifestations, Pt VII reflects a pattern in federal legislation[88] whereby provisions in comprehensive terms, apparently unconfined by constitutional limitations upon legislative power, are given specific and limited (but perhaps overlapping) operation by reference to identifiable heads of power.
[88]Another instance is the Disability Discrimination Act 1992 (Cth), s 12.
The Act in its present form
Divisions 5, 6 and 7 of Pt VII deal with what are identified as parenting orders, including child maintenance orders. Division 8 (ss 67A‑67ZD) is headed "Other matters relating to children" and contains subdivs A‑E. Subdivision A comprises s 67A, which states:
"This Division deals with:
(a)the liability of a father to contribute towards child bearing expenses if he is not married to the child's mother (Subdivision B); and
(b)orders for the location and recovery of children (Subdivision C); and
(c)the reporting of allegations of child abuse (Subdivision D); and
(d)other orders about children (Subdivision E)."
It is subdiv E, comprising ss 67ZC and 67ZD, which is of particular importance. Section 67ZC has a heading, "Orders relating to welfare of children", and states:
"(1)In addition to the jurisdiction that a court has under this Part in relation to children, the court also has jurisdiction to make orders relating to the welfare of children.
(2)In deciding whether to make an order under subsection (1) in relation to a child, a court must regard the best interests of the child as the paramount consideration."
(Division 10, subdiv B (ss 68E‑68K) makes detailed provision for the ascertainment of the "best interests" of children.)
In par 319 of the Explanatory Memorandum on what was the Family Law Reform Bill 1994, it was said:
"The new section 67ZC provides the court with jurisdiction relating to the welfare of children in addition to the jurisdiction that the court has under Part VII in relation to children. This jurisdiction is the parens patriae jurisdiction explained by the High Court in [Marion's Case]."
Shortly after that statement was made, the Court determined in the Native Title Act Case[89] that s 12 of the Native Title Act 1993 (Cth) was invalid. Section 12 gave to the common law of Australia in respect of native title "the force of a law of the Commonwealth". One of the grounds upon which the provision was held invalid was that if the "common law" referred to in s 12 was understood as the body of law which is created and defined by the courts, the section attempted to confer legislative power upon the judicial branch of government[90].
[89]Western Australia v The Commonwealth (1995) 183 CLR 373 at 484‑488.
[90](1995) 183 CLR 373 at 485.
In recent times, the parens patriae jurisdiction referred to in Marion's Case has, at least in the exercise of the "inherent" jurisdiction inherited by the High Court of Justice in England and Wales, not been treated as static or frozen[91]. In AMS v AIF, Gleeson CJ, McHugh and Gummow JJ observed[92]:
"Chancery asserted its authority with respect to infants upon various grounds. These included (a) the ordinary residence of the child within the territorial jurisdiction; (b) allegiance to the Crown and (c) physical presence, even falling short of residence, if protection of the Court were needed[93]. Further, as Mason J put it in Carseldine v Director of Department of Children's Services[94]:
'The courts have always been prepared, when the welfare of the child requires it, to divorce custody from guardianship; the existence of guardianship in one person is not a bar to the making of an order for custody in favour of another.'"
On the present appeal the Court was referred to a number of modern decisions of the English courts dealing with the extent of this jurisdiction. They included In re B (Infants)[95], In re Mohamed Arif (An Infant)[96], In re X (A Minor)[97] and In re F (A Minor)[98]. Nevertheless, no attempt has been made to treat s 67ZC as invalid by parity of reasoning with that in the Native Title Act Case. Accordingly, we say no more upon the subject.
[91]Cretney and Masson, Principles of Family Law, 6th ed (1997) at 703‑712; Seymour, "Parens Patriae and Wardship Powers: Their Nature and Origins", (1994) 14 Oxford Journal of Legal Studies 159 at 178‑187.
[92](1999) 199 CLR 160 at 168‑169 [11].
[93]Holden v Holden [1968] VR 334; McM v C [No 2] [1980] 1 NSWLR 27; In re D (an Infant) [1943] Ch 305.
[94](1974) 133 CLR 345 at 366.
[95][1962] Ch 201.
[96][1968] Ch 643.
[97][1975] Fam 47.
[98][1990] Fam 125.
Division 9 (ss 68A‑68C) is headed "Injunctions". Section 68B applies where "proceedings are instituted in a court having jurisdiction under this Part for an injunction in relation to a child" (s 68B(1)). It details a range of injunctive relief which may be considered appropriate for the welfare of the child in question. Section 68B was not a new provision. It appears largely to have re‑enacted what was s 70C previously appearing in Pt VII, Div 13, then headed "Injunctions".
Division 12 (ss 69A‑69ZK) of Pt VII controls and limits the operation of the balance of Pt VII. This is indicated by the heading of Div 12, "Proceedings and jurisdiction", and the statement in the first section, s 69A:
"This Division deals with:
(a)the institution of proceedings and procedure (Subdivision B); and
(b)jurisdiction of courts (Subdivision C); and
(c)presumptions of parentage (Subdivision D); and
(d)parentage evidence (Subdivision E); and
(e)the places and people to which this Part extends and applies (Subdivision F)."
Turning first to subdiv B (ss 69B‑69F), the effect of s 69B is to render the provisions of Pt VII imperative; proceedings that may be instituted under Pt VII are not to be instituted otherwise than under that Part. Section 69C(2) identifies those who may institute proceedings including those proceedings identified in s 67ZC and s 68B. The sub‑section states:
"Any other kind of proceedings under this Act in relation to a child may, unless a contrary intention appears, be instituted by:
(a)either or both of the child's parents; or
(b)the child; or
(c)a grandparent of the child; or
(d)any other person concerned with the care, welfare or development of the child."
In the circumstances of the present case, the presence of the children in Australia was a necessary condition to the institution of the proceedings (s 69E(1)(a)).

In this Court the appellant and the Attorney-General of the Commonwealth challenge every one of the Full Court's holdings.
Part VII of the Family Act is concerned entirely with children. Section 60B(1) states its object, to ensure that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children. The whole of s 60B(1) is taken up with references to the relationship between children and their parents and incidents of that relationship. Division 2 of Pt VII of the Family Act elaborates upon the concept of parental responsibility and reinforces the notion that both parents owe it. Divisions 4 and 5 of Pt VII make provision for "parenting plans" and their registration in the Family Court. Section 64C provides that a parenting order may be made in favour of a parent of a child, or some other person. Subsequent provisions deal with financial obligations of parents and related matters.
Section 67ZC, which is in Div 8 of Pt VII is expressed in very general terms. It is as follows:
"67ZC Orders relating to welfare of children
(1)In addition to the jurisdiction that a court has under this Part in relation to children, the court also has jurisdiction to make orders relating to the welfare of children.
(2)In deciding whether to make an order under subsection (1) in relation to a child, a court must regard the best interests of the child as the paramount consideration."
Subdivision F of Div 12 of Pt VII of the Family Act makes provision for the extension of the Part to the States. Section 69ZE is as follows:
"69ZE            Extension of Part to the States
(1)Subject to this section and section 69ZF, this Part extends to New South Wales, Victoria, Queensland, South Australia and Tasmania.
(2)Subject to this section and section 69ZF, this Part extends to Western Australia if:
(a)the Parliament of Western Australia refers to the Parliament of the Commonwealth the following matters or matters that include, or are included in, the following matters:
(i)the maintenance of children and the payment of expenses in relation to children or child bearing;
(ii)      parental responsibility for children; or
(b)      Western Australia adopts this Part.
(3)This Part extends to a State under subsection (1) or (2) only for so long as there is in force:
(a)an Act of the Parliament of the State by which there is referred to the Parliament of the Commonwealth:
(i)the matters referred to in subparagraphs (2)(a)(i) and (ii); or
(ii)matters that include, or are included in, those matters; or
(b)      a law of the State adopting this Part.
(4)This Part extends to a State at any time under subsection (1) or paragraph (2)(a) only in so far as it makes provision with respect to:
(a)the matters that are at that time referred to the Parliament of the Commonwealth by the Parliament of the State; or
(b)matters incidental to the execution of any power vested by the Constitution in the Parliament of the Commonwealth in relation to those matters."
Section 69ZF then provides as follows:
"69ZF            Unless declaration in force, Part's extension to a State has effect subject to modifications
(1)The Governor-General may, by Proclamation, declare that all the child welfare law provisions of this Part extend to a specified State.
(2)Despite anything in section 69ZE, if no declaration under subsection (1) is in force in relation to a particular State, this Part, as it extends to that State because of section 69ZE, has effect as if:
(a)      subsection 66F(2) were omitted; and
(b)subsections 69ZE(1) and (2) were amended by omitting 'and section 69ZF'; and
(c)      section 69ZF were omitted; and
(d)      paragraph 69ZK(1)(b) were omitted; and
(e)subsection 69ZK(2) were amended by adding at the end the following word and paragraphs:
'; or(d) the jurisdiction of a court under a child welfare law to make an order in relation to the maintenance of the child; or
(e)an order of the kind referred to in paragraph (d).'.
(3)A Proclamation that was in force in relation to a State under subsection 60E(6) of this Act as in force before the commencement of this section has effect, after that commencement, as if it were a Proclamation under subsection (1) of this section."
Section 69ZH should also be noted:
"69ZH Additional application of Part
(1)Without prejudice to its effect apart from this section, this Part also has effect as provided by this section.
(2)By virtue of this subsection, Divisions 2 to 7 (inclusive) (other than Subdivisions C, D and E of Division 6 and sections 66D, 66M and 66N), Subdivisions C and E of Division 8, Divisions 9, 10 and 11 and Subdivisions B and C of Division 12 (other than section 69D) have the effect, subject to subsection (3), that they would have if:
(a)each reference to a child were, by express provision, confined to a child of a marriage; and
(b)each reference to the parents of the child were, by express provision, confined to the parties to the marriage.
(3)The provisions mentioned in subsection (2) only have effect as mentioned in that subsection 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:
(i)the maintenance of the child and the payment of expenses in relation to the child; or
(ii)the residence of the child, contact between the child and other persons and other aspects of the care, welfare and development of the child; and
(b)other aspects of duties, powers, responsibilities and authority in relation to the child:
(i)arising out of the marital relationship; or
(ii)in relation to concurrent, pending or completed proceedings between those parties for principal relief; or
(iii)in relation to a dissolution or annulment of that marriage, or a legal separation of the parties to the marriage, that is effected in accordance with the law of an overseas jurisdiction and that is recognised as valid in Australia under section 104.
(4)By virtue of this subsection, Division 1, Subdivisions C, D and E of Division 6, section 69D, Subdivisions D and E of Division 12 and Divisions 13 and 14 and this Subdivision, have effect according to their tenor."
In my opinion the appellant's first submission is correct, that the jurisdiction conferred by s 67ZC of the Family Act does not, as a matter of statutory construction, extend to a jurisdiction to order the children to be released from detention. The only jurisdiction which the relevant States, including South Australia, sought to transfer and transferred to the Family Court for exercise under the Family Act pursuant to s 69ZE(3) and (4) was relevantly, the parental responsibility for, and the parental maintenance of children. Clearly, the orders sought by the respondents in this case are not orders with respect to any of these matters.
The reference by the States in the terms that it was made is consistent with these propositions: the Commonwealth has power to make laws with respect to marriage under s 51(xxi) and s 51(xxii) of the Constitution; power in relation to ex-nuptial children resides in the States; and the whole thrust of the Family Act so far as children are concerned is to deal with children of marriages and the obligations of their parents to them. That last appears (inter alia) from those provisions of the Family Act in Pt VII to which I have referred, including s 69ZH, in which the notion of, and obligations attached to "parenting", that is to say, parents within, or who have been in a marriage, are set out. It was with "parenting" and its obligations not otherwise the subject of the Family Act that the States were concerned, and some powers with respect thereto that they sought to, and did in terms transfer to federal courts, the Family Court, and, by s 69H(4), the Federal Magistrates Court.
Sections 69ZE to 69ZH are central to, and govern the application of the provisions of Pt VII. It is not only unlikely that a State would seek to confer a power upon the Commonwealth that the latter already possessed, but it also would be constitutionally unable to do so. What the States have done is simply to confer a jurisdiction with respect to parental obligations owed to children, not already possessed by the Commonwealth. Furthermore, the power or jurisdiction conferred is neither in terms nor by implication a general welfare jurisdiction over children. What I have said is, I believe, in conformity with the recent approach of the Court generally to a reference of a State power to be exercised in conjunction with a constitutionally confined Commonwealth power[216].
[216]Northern Territory v GPAO (1999) 196 CLR 553 at 573 [25] per Gleeson CJ and Gummow J, 594-595 [103]-[104] per Gaudron J, 611 [157] per McHugh and Callinan JJ; AMS v AIF (1999) 199 CLR 160 at 170-172 [14]-[21] per Gleeson CJ, McHugh and Gummow JJ, 181-184 [54]-[64] per Gaudron J, 242-244 [249]-[258] per Callinan J.
It is also right, as the appellant and the Attorney-General of the Commonwealth submit, that the acceptance of their arguments so far is sufficient to dispose of this appeal in their favour. Nonetheless, in due deference to the extensive argument on the other issues determined by the Full Court of the Family Court, I propose to say something about them.
The majority of the Full Court purported also to exercise a parens patriae jurisdiction. That it was entitled to do so is met by the conclusion that I have already reached. But there is also this, the States did not purport to confer it. If it may be exercised by the Family Court, it can only owe its existence therefore to a parens patriae power residing in the Commonwealth. The Family Act cannot in my opinion be read as intended to confer it except to the extent that its provisions can constitutionally, and do replicate it. The Commonwealth Parliament's power to legislate is governed by ss 51(xxi) and 51(xxii) of the Constitution. The combined effect, and the influence of each upon the meaning of the other, and in consequence, the limitations upon Commonwealth power with respect to children, were the subject of some considerable discussion in Russell v Russell[217] in which Barwick CJ said[218]:
"Whilst each topic referred to in s 51 is an independent subject matter and some overlapping is possible, cognate topics and the terms in which they are expressed cannot be and never have been ignored in deciding the content and ambit of a topic described in s 51. In the present instance, the presence and the terms of par (xxii) may be related to the content and ambit of par (xxi) and may be regarded, as I would regard them, as limiting that content and ambit, particularly with respect to proceedings in relation to parental rights, custody and guardianship of infants.
As I shall later point out, par (xxii) covers 'matrimonial causes' as a specific head of power. In specifying that topic, the Constitution expressly provides the extent to which parental rights, custody and guardianship of infants fall within the area of matrimonial causes.
It seems to me to be implicit in the topic of 'divorce and matrimonial causes' that proceedings incidental to a proceeding for divorce or nullity of marriage are matrimonial causes within the subject matter of par (xxii) and that it is not necessary to resort to s 51(xxxix) in order to find power to create a jurisdiction with respect to such proceedings. These undoubted consequences of par (xxii) are pertinent, in my opinion, to any consideration of the content or ambit of the power granted by par (xxi)."
[217](1976) 134 CLR 495.
[218](1976) 134 CLR 495 at 508-509.
Later his Honour said[219]:
"In my opinion, however, it is one thing to specify the consequences of the act of marriage, including a specification of the mutual rights and duties of the spouses, both towards each other and towards their children: it is quite another thing to erect a jurisdiction to enforce those rights and duties. Though in relation to some topics of legislation powers of adjudication and enforcement may be seen as no more than incidental to the topic or to the execution of the law made under it, it seems to me that the creation of such a jurisdiction, as that with which I am dealing, is not incidental within the meaning of par (xxxix) of s 51 to the declaration of the consequences of marriage: nor is it wrapt up as an incident of and contained within the constitutional topic of 'marriage' itself. It is, indeed, quite a disparate matter to determine how and by whom the particular consequences of the existence or exercise or non-performance of the rights or duties derived from the marriage may be determined and enforced. Hence the need for a specific topic of divorce and a specific topic of matrimonial causes, expressed in the terms of par (xxii) of s 51."
[219](1976) 134 CLR 495 at 510.
Gibbs J said this[220]:
"However, par (xxii) of s 51 expressly gives the Parliament power to legislate with respect to divorce and matrimonial causes. The latter expression, if widely understood, would refer to any controversy between the parties to a marriage as to a matter which pertained to the marriage relationship. It would indeed include divorce itself. If it were not for the concluding words of par (xxii), that paragraph could without difficulty be read as supplementing and amplifying, so far as necessary, the power given by par (xxi); together the two paragraphs would give the fullest power to legislate with respect to proceedings brought by one spouse against another to enforce any rights which had their source in the matrimonial relationship. However, the concluding words of par (xxii), by giving a power to make laws with respect to parental rights and the custody and guardianship of infants in relation to divorce and matrimonial causes, indicate a clear intention that the power given by par (xxii) should not authorize legislation with respect to those questions unless they arise as an incident to proceedings for divorce or some other matrimonial cause. Under par (xxii) the Parliament has power to deal with proceedings for custody which are brought as ancillary to proceedings for divorce or some other matrimonial cause, but has no power to deal with custody proceedings brought independently of any other claim to relief."
[220](1976) 134 CLR 495 at 525.
On this point Gibbs J reached this conclusion[221]:
"In my opinion it is not proper in the construction of par (xxi) to ignore the restrictions on power contained in par (xxii). To do so would in effect make the concluding words of par (xxii) quite ineffective. Paragraph (xxii) resembles par (xxxi) in that in each case there is an express indication of an intention that the power of the Parliament should be subject to a specified limitation. It would in my opinion give altogether too little weight to the words of par (xxii) to regard par (xxi) as granting a power to make laws with respect to parental rights and the guardianship and custody of infants even when those matters had no relation to divorce or any other matrimonial cause."
[221](1976) 134 CLR 495 at 527.
However, those views did not prevail in that case or subsequently. To the contrary, in the joint judgment of Mason CJ, Deane, Toohey and Gaudron JJ in P v P[222], this appears:
"The grants of legislative power contained in pars (xxi) and (xxii) of s 51 of the Constitution are cumulative. Each must be given its full scope and effect. Neither is to be read down by reference to the other[223]. Paragraph (xxi)'s grant of legislative power with respect to 'Marriage' encompasses laws dealing with the protection or welfare of children of a marriage in so far as the occasion for such protection or welfare arises out of, or is sufficiently connected with, the marriage relationship[224]. To a significant extent, that operation of par (xxi) overlaps par (xxii)'s express conferral of legislative power with respect to 'parental rights, and the custody and guardianship of infants' in relation to 'Divorce and matrimonial causes'. The authorization of medical treatment of an incapable child of a marriage, including medical treatment of the kind involved in Marion's Case and in this case, is something which is directly related to the protection and welfare of the particular child and which arises out of, and is itself an aspect of, the relevant marriage relationship. To the extent that the relevant provisions of Pt VII of the Family Law Act confer jurisdiction to give or withhold such authorization, they are a law with respect to marriage within s 51(xxi). Moreover, the relevant provisions of Pt VII are, in the context of that conferral of jurisdiction upon the Family Court, directly concerned with parental rights and the custody and guardianship of infants in relation to divorce or matrimonial causes and are accordingly within the grant of legislative power contained in s 51(xxii)."
[222](1994) 181 CLR 583 at 600-601.
[223]See Attorney-General (Vict) v The Commonwealth ("the Marriage Act Case") (1962) 107 CLR 529 at 560, 572; Russell v Russell (1976) 134 CLR 495 at 539; Re F; Ex parte F (1986) 161 CLR 376 at 387.
[224]See, eg, R v Lambert; Ex parte Plummer (1980) 146 CLR 447 at 456; Gazzo v Comptroller of Stamps (Vict) (1981) 149 CLR 227 at 234‑235, 247-248; Fountain v Alexander (1982) 150 CLR 615 at 632; In the Marriage of Cormick (1984) 156 CLR 170 at 175-176; Re F; Ex parte F (1986) 161 CLR 376 at 382, 389-390.
With all due respect, and acknowledging that constitutionally conferred powers may overlap, I am unable to accept that the Constitution is not to be read according to one of the most elementary canons of construction of all relating to instruments of any kind: as a whole. Nor can I accept a proposition that the language of each part of it is incapable of having a bearing, including in some circumstances, a restrictive or limiting effect upon other parts. This Court has held that implications can be drawn from the relationships of various sections of the Constitution with one another and its structure[225]. That approach is consistent only with its being read as a whole and careful regard being had to context. This means that ss 51(xxi) and 51(xxii) not only may, but should be read together, and in consequence, having regard to their proximity, read as intended to deal with separate and quite distinct, that is to say not overlapping topics. And despite that sometimes, probably very rarely, constitutional provisions and powers may overlap, the better view is that the drafters neither engaged in a process of intentional duplication nor accidentally achieved it.
[225]See Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 557-562.
Earlier, their Honours in P v P[226] had explained the reasoning of the Court in Secretary, Department of Health and Community Services v JWB and SMB (Marion's Case)[227]. They were at some pains to say that the issue there, of sterilisation of a child, arose out of the custody or guardianship of a child of a marriage. It is unnecessary, for the purposes of this case to revisit Marion's Case. On no view are the statements made there likely to throw any light on the entirely different situation here.
[226](1994) 181 CLR 583 at 599-600.
[227](1992) 175 CLR 218.
No matter how extensive the powers conferred by ss 51(xxi) and 51(xxii) may be, the powers of the Family Court with respect to children are powers in relation to, or arising out of married (either currently or previously) parentage of children, or of unmarried parentage of them on a reference by the States. Those powers do not comprehend a general discretionary welfare power over any or all children, whether of a marriage or not, exercisable in such a way as to override any or all other powers over children, such as to detain them in immigration detention, or rehabilitative, reformative, or penal institutions. The Family Court may no more do this than it could exercise a jurisdiction in tort or contract in order to advance the welfare of a child.

The respondents' proposition that s 51(xxi) of the Constitution provides a power on the part of the Commonwealth to legislate, and that by the Family Act it has legislated pursuant to it, to confer a power upon the Family Court to make all such orders as it thinks appropriate and may make under Pt VII of the Family Act, in cases in which the obligations and rights of parents are in no way in issue, so long as children of a marriage are concerned, should be rejected.
The appellant's and the Attorney-General of the Commonwealth's third response was that whatever the extent of the jurisdiction of the Family Court, it had no power to contradict or interfere with the statutory directions for the detention of unlawful non-citizens whether or not they were children pursuant to ss 189 and 196 of the Migration Act. The point is certainly arguable. Before saying why that is so I should set out the two sections of the Migration Act:
"189    Detention of unlawful non-citizens
(1)If an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non-citizen, the officer must detain the person.
(2)If an officer reasonably suspects that a person in Australia but outside the migration zone:
(a)is seeking to enter the migration zone (other than an excised offshore place); and
(b)would, if in the migration zone, be an unlawful non-citizen;
the officer must detain the person.
(3)If an officer knows or reasonably suspects that a person in an excised offshore place is an unlawful non-citizen, the officer may detain the person.
(4)If an officer reasonably suspects that a person in Australia but outside the migration zone:
(a)is seeking to enter an excised offshore place; and
(b)would, if in the migration zone, be an unlawful non-citizen;
the officer may detain the person.
(5)In subsections (3) and (4) and any other provisions of this Act that relate to those subsections, officer means an officer within the meaning of section 5, and includes a member of the Australian Defence Force.
...
196     Period of detention
(1)An unlawful non-citizen detained under section 189 must be kept in immigration detention until he or she is:
(a)removed from Australia under section 198 or 199; or
(b)      deported under section 200; or
(c)      granted a visa.
(2)To avoid doubt, subsection (1) does not prevent the release from immigration detention of a citizen or a lawful non-citizen.
(3)To avoid doubt, subsection (1) prevents the release, even by a court, of an unlawful non-citizen from detention (otherwise than for removal or deportation) unless the non-citizen has been granted a visa."
The Migration Act, as appears inter alia, from the unmistakable language of those sections, is a very specific enactment apparently designed to deal with all relevant matters in relation to the entry, departure and residence of unlawful non-citizens which these respondents undoubtedly are. No relevant exceptions are made by the Migration Act in relation to children as to the jurisdiction that courts, whether State or federal, might or might not otherwise have in relation to them. The appellant and the Attorney-General of the Commonwealth accept that detention under the Migration Act is subject to the general law and in that sense to the supervision of the courts. Officials administering the Migration Act may, for example, be liable criminally or in tort. The Migration Act, however, confers upon the officials the duty to decide where a detainee resides and the conditions of residence. These are administrative decisions. They are likely to be affected by considerations of policy to the extent that discretions have to be exercised, and with respect to priorities of allocation of public resources.
Some of the orders sought in the Family Court could well require the responsible Minister to exercise statutory powers under the Migration Act in a particular way, for example, to approve a particular place for the purposes of par (b)(v) of the definition of "immigration detention" in s 5(1) of the Migration Act. Section 474 of the Migration Act would appear to stand as an obstacle to the making of orders of the kind sought[228].
[228]Compare the reasoning of Chisholm J in HR & DR and Minister for Immigration & Multicultural & Indigenous Affairs (2003) FLC ¶93-156 at 78,569-78,571 [151]-[171].
The respondents sought to rely on the United Nations Convention on the Rights of the Child. For present purposes I will proceed upon the basis that the welfare of children in this country can truly be an external affair. In enacting Pt VII of the Family Act the Parliament chose to rely on particular heads of power. Express references or indications of those heads of power will usually provide fairly sure pointers to the boundaries within which the Parliament was intending to legislate and has legislated. Here, those indicators are to be found in the long title to the Family Act and the reference to parentage and marriage in Pt VII of the Act. The Convention cannot expand the intended and clearly identified scope of Pt VII of the Family Act. Australia's treaty obligations do not form part of Australian domestic law unless incorporated by statute[229]. Whatever relevance the Convention may have as a declared instrument under the Human Rights and Equal Opportunity Commission Act 1986 (Cth), it has not actually been incorporated into the domestic law relating to the detention of unlawful non‑citizens which is the subject of express provision under the Migration Act. Nor does Pt VII purport to incorporate the Convention into domestic law as an exercise of any legislative power with respect to external affairs, assuming that the relevant matters could be external affairs. To do so the demonstration of a clear connexion between the law and the treaty would be necessary: the law must truly have the "purpose or object" of implementing the treaty[230]. Part VII manifests no such purpose, even though it may not be inconsistent with the Convention.
[229]Victoria v The Commonwealth (Industrial Relations Act Case) (1996) 187 CLR 416 at 480-482 per Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ.
[230]Victoria v The Commonwealth (Industrial Relations Act Case) (1996) 187 CLR 416 at 487 per Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ, citing Brennan J in Cunliffe v The Commonwealth (1994) 182 CLR 272 at 322.
The language of Pt VII and the parliamentary history of the Family Law Reform Act 1995 (Cth) (which inserted Pt VII in its current form) make it clear that Parliament was not intending in enacting that Part to implement the Convention for these reasons. The changes introduced by the 1995 amendments were directed at the reinforcement of parental responsibility for children. Section 67ZC reproduced the earlier welfare jurisdiction, arguably in clearer terms but with no suggestion of any resort to the Convention which is nowhere mentioned in the Family Act. Section 60B is a direct indication of reliance upon the marriage power.
In explaining the amendments directed at parental responsibility, the Explanatory Memorandum to the Bill for the 1995 amendments noted that the object of Pt VII was "based [not on the reception of the Convention into the Family Act, but] on principles which are consistent with" the Convention[231]. The second reading speech noted Australia's ratification of the Convention and said that the objects clause in Pt VII gave "recognition" to the rights contained in that instrument "by specifying a number of such rights that should be observed"[232] (emphasis added). It is possible therefore that some Articles of the Convention may have influenced the drafting of sections of Pt VII. The Parliament did not however intend to implement the Convention by, in some way enlarging or creating an all-embracing welfare jurisdiction. The strong possibility in any event is that the Convention may be aspirational only. None of its provisions on any view require that the rights of children be protected or advanced by a conferral of jurisdiction upon the Family Court. Furthermore, the substantive Articles of the Convention set out rights which States are to ensure that children and parents should enjoy, but leave the selection of "appropriate legislative, administrative, and other measures"[233] to State parties.
[231]Explanatory Memorandum to the Family Law Reform Bill 1994 at 2 [4].
[232]Australia, House of Representatives, Parliamentary Debates (Hansard), 8 November 1994 at 2759.
[233]United Nations Convention on the Rights of the Child, Art 4.
Something need only briefly be said about the fourth matter, the Full Court's reliance on the reasoning of the Full Court of the Federal Court in Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri[234]. The applicant there failed to obtain a protection visa. He asked to be removed from Australia under s 198(1) of the Migration Act but (at the time of the decision at first instance at least) that removal could not be effected. The Full Federal Court held that the primary judge had been correct to regard Mr Al Masri's continued detention as falling outside the authority of s 196 of the Migration Act because, as a matter of construction, s 196 did not authorise the detention of a non‑citizen for the purpose of removing him or her from Australia unless there was a real likelihood of removal in the reasonably foreseeable future. For the reasons that I have given it is unnecessary to explore the correctness of that proposition in this appeal.
[234](2003) 197 ALR 241.
The judges in the majority in the Full Court also embarked upon a long discussion of authority and academic writing about the "capacity" of children to make decisions[235]. The significance of "capacity" was that, in their Honours' view, "if the children or any of them are unable to bring their detention to an end [by making a request under s 198(1)], therefore, like Mr Al Masri, their continued detention is unlawful"[236]. They expressed the view, despite the absence of any evidence about capacity, that the children were unlawfully detained[237].
[235](2003) 199 ALR 604 at 663-665 per Nicholson CJ and O'Ryan J.
[236](2003) 199 ALR 604 at 665 per Nicholson CJ and O'Ryan J.
[237](2003) 199 ALR 604 at 665 per Nicholson CJ and O'Ryan J.
The Full Court heard no argument that, as with Mr Al Masri, the children here had failed in their visa application and had exhausted all avenues of appeal and that it was therefore the duty of every "officer" under s 198(6) of the Migration Act to remove them from Australia as soon as "reasonably practicable". If the reasoning in Al Masri was correct, the lawfulness of their detention depended on the prospects of that removal being achieved in the reasonably foreseeable future. Whether they had any capacity to request their own removal under s 198(1) would then have no relevance. It is unnecessary to reach any conclusion on this last matter.
Conclusions
For the other reasons I have given the appeal must be allowed.
The effect of the orders of the Full Court was that the primary judge rehear the applications which were made at first instance. Those orders should be set aside. The judgment and orders of the primary judge should be restored. In consequence, the interlocutory orders in purported exercise of the jurisdiction which the Family Court has now been held not to have, can have no operation. The appellant accepts and accordingly it should be ordered that the appellant pay the respondents' costs of the appeal.