Minister for Immigration and Multicultural and Indigenous Affairs v ‘B’ (Infants)
[2003] HCATrans 380
[2003] HCATrans 380
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Adelaide No A246 of 2003
B e t w e e n -
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Appellant
and
‘B’ (INFANTS)
First Respondents
‘B’ (INTERVENER)
Second Respondent
GLEESON CJ
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J
HEYDON J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON TUESDAY, 30 SEPTEMBER 2003, AT 10.21 AM
Copyright in the High Court of Australia
__________________
MR D.M.J. BENNETT, QC, Solicitor‑General of the Commonwealth of Australia: If the Court pleases, I appear with my learned friend, MR G.R. KENNETT, for the appellant Minister and for the Attorney‑General intervening. (instructed by Australian Government Solicitor)
MR S.W. TILMOUTH, QC: May it please the Court, I appear with my learned friends, MR S.C. CHURCHES and MR S.D. OWER, for the first respondents. (instructed by Jeremy Moore & Associates)
MR D.F. JACKSON, QC: If the Court pleases, I appear with my learned friend, MR B.W. McQUADE, for the second respondent. (instructed by Boylan & Co)
MS F.P. HAMPEL, SC: May it please the Court, I appear with my learned friend, MS K.L. EASTMAN. We seek leave to appear as friend to the Court in the interests of Amnesty International Australia. (instructed by Public Interest Advocacy Centre)
GLEESON CJ: Is this on the basis that if leave is granted you would address oral argument or rely on your written submissions?
MS HAMPEL: No, rely on our written submissions unless the Court wished to ask us to address it on any matters.
GLEESON CJ: Now, what is the attitude of the parties to that?
MS HAMPEL: If I can inform the Court, the respondents have consented to that and the appellant and the intervener, the Attorney‑General, have indicated they do not oppose the application.
GLEESON CJ: Then you have that leave on the basis that you rely on your written submissions.
MS HAMPEL: If the Court pleases.
GLEESON CJ: Yes, Mr Solicitor.
MR BENNETT: May it please the Court. My submissions will be divided into four sections, basically in accordance with paragraph 19 of our submissions which sets out the four. The first is the effect of Subdivision F of Division 12 of the Family Law Act which we submit limits the breadth of section 67ZC and 68B. The second is the general scope of the parens patriae jurisdiction and those two sections, and that has a number of subcategories including the effect of the international convention. The third area concerns the relationship between the Family Law Act and the Migration Act. The fourth matter concerns the decision of the Family Court that the detention was unlawful, that being something which the parties did not argue before the Family Court and which, indeed, was expressly said not to be argued before them but which they dealt with at some length, as your Honours would be aware.
KIRBY J: Now, how does that last one interrelate with the matters that we gave special leave in Adelaide to be heard later in the year?
MR BENNETT: Your Honour, one aspect of the fourth area concerns the correctness of the decision in Al Masri.
KIRBY J: Yes.
MR BENNETT: There are two cases which have been removed to this Court which raise the issue of Al Masri. It is not proposed to argue that fully before your Honours today, largely because that issue will be dealt with in that case. We take the view that for any of at least three reasons, and possibly more, the Court would probably not get to that. If the Court does, we would be submitting that the appropriate course would be for the Court to defer giving its judgment until it had heard the two removed cases because that part of the fourth issue involves the same question.
The other part of the fourth issue involves the application of the principles of Al Masri to children and specifically to the children involved in the present case, and the fourth issue could easily be determined on that basis without deciding whether Al Masri was correct or not. So for that reason and because of the other three arguments, we would be submitting it would be unnecessary for the Court to deal with that issue in this case. If the Court required it to be argued we would, of course, deal with it, but it seems undesirable in the absence of those parties and it, as I say, almost certainly does not arise in these proceedings.
GUMMOW J: I think Mr Tilmouth appears in one of the other matters.
MR BENNETT: Yes, he appears in one of them, yes, that is so.
GLEESON CJ: Did the decision of the Full Court of the Family Court in relation to the question of the unlawfulness of the detention turn upon any facts other than the age of the children?
MR BENNETT: No, your Honour, and some general conclusions drawn from their ages about their ability to consent, although, as we will demonstrate to your Honours, the question of the consent would be quite irrelevant on the facts of this case where they have exhausted all their remedies in relation to the question of their being unlawful non‑citizens.
KIRBY J: I notice that in some of the submissions the children are named. Is it your submission that the provision of the Migration Act which relates to the anonymisation of the names applies to this Court in this matter? Do we have to deal with them by an anonymised initial as distinct from their name when their names appear in newspapers all around the country?
MR BENNETT: Your Honour, that is a matter on which I have no instructions to put submissions to the Court at this stage. I can obtain those instructions.
GUMMOW J: It is a question of 91X. Do you say 91X applies or do you have no view on it?
MR BENNETT: If your Honours desire us to obtain instructions on that, I will do so. At this stage my instructions are that it is a matter for the Court.
KIRBY J: It just puts the Court in a somewhat absurd position by reason of the provision of the Act, if it is valid. Anyway, you will tell us later.
MR BENNETT: Yes. Coming to the first issue which is section 67ZC in Subdivision F, section 67ZC ‑ ‑ ‑
GUMMOW J: Do we not have to begin at the beginning and find out what was the conferral of the jurisdiction on the Family Court in these two applications; what was the legislative basis of its jurisdiction and what the relevant matter was?
MR BENNETT: That is precisely what I am coming to, your Honour.
GUMMOW J: You begin at 69H, do not you, plus 31(1)?
MR BENNETT: Yes, those are the primary jurisdiction conferring sections, your Honour, and 67ZC then provides that:
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.
Then there is a provision about paramountcy. Now, that very broad provision is, we would submit, significantly limited by section 69ZE, F, G and H, and I propose to start by taking your Honours to those sections. The wording is not as ‑ ‑ ‑
GUMMOW J: What does 67ZC mean? Is it a law under 77(i) of the Constitution? I am not putting this in an adverse way to you. I am just trying to find out the structure of the Part.
MR BENNETT: As limited, your Honour, yes, and the structure of Subdivision F limits it to a particular head ‑ ‑ ‑
GUMMOW J: It would be invalid, would not it? If 67ZC(1) were read without anything else it would be invalid, would not it? Where would the law be under 76(2) and 77(1)?
MR BENNETT: Your Honour, it cannot be read without the restriction ‑ ‑ ‑
GUMMOW J: I know. I know that.
MR BENNETT: One reason, your Honour, apart from anything else ‑ ‑ ‑
GUMMOW J: That is what I am trying to say to you, you do not begin with 67ZC in isolation. You cannot, because it would be invalid.
MR BENNETT: It would, your Honour, and one of the problems with it would be the effect of 67ZC(2) because it cannot mean that there is jurisdiction in every dispute involving children, because the law cannot be that in every dispute involving children and third parties, one looks at the welfare of the child as the paramount consideration rather than balancing whatever the law requires to do justice between the parties. That is one of the reasons the section is confined to the matrimonial causes context, and other specific contexts in Subdivision F.
KIRBY J: How is that confinement secured in textual terms?
MR BENNETT: Your Honour, that is what I am coming to. Your Honour, one starts with section 69ZE and that provides that:
(1) Subject to this section and section 69ZF, this Part extends to –
five of the six States, and then subsection (2) extends it to Western Australia if Western Australia refers or adopts certain powers which the other States had already referred. Then subsection (3) is the subsection which limits it in those States, and that says:
This Part extends to a State under subsection (1) or (2) only for so long as there is in force:
(a) an Act . . .
(i) the matters referred to in subparagraphs (2)(a)(i) and (ii) –
which are “maintenance of children and the payment of expenses in relation to children or child bearing” and “parental responsibility for children” –
or -
(ii) matters that include, or are included in, those matters; or
(b) a law of the State adopting this Part –
adopting as opposed to referring, under placitum 51(xxxviii) of the Constitution.
Then subsection (4) provides:
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.
It is very significant that the word “matters” in paragraph (b) relates back to the matters referred to in paragraph (a).
GLEESON CJ: Where does the word “extends” come from?
MR BENNETT: “Extend” is being used to mean applies, your Honour. Your Honour, in placitum 38 of the Constitution – so the starting point is that the Act extends to the States to the extent that power has been referred or adopted, and the referring legislation ‑ ‑ ‑
KIRBY J: I would have thought the starting point is that in the structure of federal courts three courts have been created. In chronological order, the Family Court of Australia, the Federal Court of Australia and the Magistrates Court, and that the Family Court of Australia on the face of it has the particular area of jurisdiction relevant to family law but as defined.
MR BENNETT: Yes.
KIRBY J: You therefore start from that specialised and particular jurisdiction. Then you have to look to whether or not what on the face of it is a particular and specialised jurisdiction has been expanded in terms beyond that which would be apt to family law in its ordinary connotation.
MR BENNETT: Your Honour, we submit – and your Honour will see this when I get to the other sections – that this subdivision defines the whole of the operation of the part. I started with 69ZE which deals with the matters referred. If I can just complete that by showing your Honours what has been referred. There is annexed to our submissions just before tab B the South Australian legislation, the Commonwealth Powers (Family Law) Act 1986. Your Honours will see from subsection 3(1) the matters referred are:
(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.
And then there are some exclusions and general provisions. It is reading that with section 69ZE one can see that there is a very limited extent to which this part extends under that section.
GLEESON CJ: The word “extend” just picks up the language of paragraph 37.
MR BENNETT: Yes, your Honour.
KIRBY J: The last words, that is to say “custody” and “guardianship” and “access”, are quite large in content.
MR BENNETT: Yes, but they are dealing with that in a broader context, in a specific context. It is not, for example, dealing with matters such as the custody of a gaoler in relation to a child imprisoned for an offence, it is not talking of that sort of custody. The words must be read in their overall context of what is being referred.
KIRBY J: But you know how sometimes when pregnant women are convicted and they have a child in prison, the child remains with that prisoner.
MR BENNETT: Yes.
KIRBY J: Why would that formula in the South Australian Act not be sufficient to extend the jurisdiction and powers of the Family Court to such a child – custody, guardianship?
MR BENNETT: It would in relation to the question of whether the mother has custody, but insofar as the mother exercises that custodial right, it would not confer any power in relation to directing the gaoler to put her in a particular facility or matters of that sort, and the same would apply in relation to detention, as I will come to later.
GUMMOW J: Would it include court wardship?
MR BENNETT: No, your Honour, not in the broad sense. It might include adoption but for an exclusion, but not wardship. The 69ZG then picks up the whole of the Part and says “This Part applies in and in relation to the Territories”. That is, of course, a law under section 122 of the Constitution and it applies the Part as such in the Territories.
KIRBY J: What is the relevance of your drawing that to our notice?
MR BENNETT: I am showing your Honours the structure of this subdivision to show how it is exhausted. Then, finally, section 69ZH deals with the traditional scope of family law powers, and that says:
Without prejudice to its effect apart from this section –
not apart from this subdivision –
this Part also has effect as provided by this section.
This section then provides, first, that certain of the provisions of the Part, and the Part is Part VII dealing with children:
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.
GLEESON CJ: We are presently concerned with Subdivision E of Division 8, is that right?
MR BENNETT: Yes, the parts are in 67ZC and 68B, are both within this list. They are both within the Subdivision E of Division 8.
GUMMOW J: Which is based on the marriage power, not divorce, just marriage.
MR BENNETT: Yes, your Honour, and subsection (3) then makes that clear:
The provisions mentioned in subsection (2) only have effect as mentioned in that subsection so far as they make provision with respect to their parental responsibility of the parties to a marriage for a child of the marriage, including –
duties in relation to maintenance, residence, contact et cetera, 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 . . . proceedings between those parties . . . or
(iii) in relation to . . . dissolution –
et cetera. Then subsection (4) completes the picture. That says:
By virtue of this subsection ‑ ‑ ‑
GUMMOW J: This is diversity ‑ ‑ ‑
MR BENNETT: No, your Honour.
By virtue of this subsection –
a whole series of provisions of the part, basically the other provisions, although there are some exceptions to that statement –
have effect according to their tenor.
That would be totally unnecessary if the provisions had effect according to their tenor in any event. They clearly do not. This subdivision is designed to lay down the total – by limiting the part to various constitutional powers, it lays down the effect it is to have.
KIRBY J: What are those divisions that are referred to in subsection (4)?
MR BENNETT: They are substantially, as I say, but not precisely the converse of those referred to in subsection (2) and they do not include the sections we are concerned with in this case.
KIRBY J: What do you say is the theory of this extension of federal power into matters which traditionally have been State law jurisdiction, namely, general welfare of children? What was the political compact?
MR BENNETT: Your Honour, that is exactly why it is limited. It is limited to matters relating to the marriage power, matters relating to the divorce power, matters relating to ‑ ‑ ‑
GUMMOW J: They are not matters relating to the ‑ ‑ ‑
MR BENNETT: That is 69ZH(3)(b)(ii) and (iii), your Honour.
GUMMOW J: Thank you.
MR BENNETT: So it picks up those powers, it picks up the territories power and it picks up the State references.
GUMMOW J: It has to accommodate diversity jurisdiction, which is 69ZJ.
MR BENNETT: Yes, 69ZJ accommodates that, but that is all. It is not done under anything else. It is not done under the external affairs power – and I will come to that later – but it is simply limited in that way. That really is the short answer to the whole of this appeal before one gets to the longer and more complex answers. What is being sought to be done here does not, on any view of it, fall within any part of this subdivision, which is the subdivision which determines how the part operates and when it can operate.
GUMMOW J: If we go back to 69H for a minute, the “matters arising under this Part” are identified, you say, by the whole of this process and it has various branches to it?
MR BENNETT: Yes, your Honour.
GUMMOW J: And it is not identified simply by going to what one might call the generally expressed provisions?
MR BENNETT: Precisely, your Honour. In that respect it is slightly different to what was done under the Trade Practices Act. There one had an Act under the corporations power and a section which sought to make the Act applicable in a slightly amended form under various other powers, but that is not what is done here. Here the draftsperson has chosen to set out in this subdivision the whole operation of the part. That is apparent from the reference to particular provisions having effect according to their tenor.
GUMMOW J: How does all this fit in with the definition of “matrimonial cause” as it now stands in the general provision of 31 in relation to the Family Court?
MR BENNETT: Your Honour, the definition of “matrimonial cause” is set out in section 4.
GUMMOW J: It omits paragraphs (cb) to (ch), which I think, under the old regime, were the child provisions.
MR BENNETT: Yes.
GUMMOW J: But I may be wrong about that, but that is right. Then if you go to 31 the “matrimonial causes” collection is in 31(1)(a) and what you have been taking us to is in 31(1)(d), is that right?
MR BENNETT: No, (d) is really more of an incidental power.
GUMMOW J: I do not think so.
KIRBY J: Are we looking at (d) in the definition of “matrimonial cause” in section 4, are we?
MR BENNETT: No, your Honour. We are looking at (d) in section 31(1).
GUMMOW J: Otherwise you do not get Part VII. You only get Part VII through 31(1)(d), I think, unless someone persuades me otherwise. That is a consequence of a removal of (cb) and (ch) from the definition of “matrimonial cause” and the restructuring of it with a new Part VII.
MR BENNETT: Yes. There is also, your Honour, section 69H ‑ ‑ ‑
GUMMOW J: Yes, that is right.
MR BENNETT: ‑ ‑ ‑ which confers jurisdiction “in relation to matters arising under this Part”.
HAYNE J: Which meshes with 31(1)(d), does it not?
MR BENNETT: Yes, your Honour. Section 69M, which refers to:
jurisdiction . . . in addition to any jurisdiction conferred on or invested in the court apart from this Division.
That is, of course, picking up the jurisdiction in Subdivision F which I have taken your Honours to.
GLEESON CJ: Now, you succeeded on this point at first instance I think. How did the Full Court or the majority in the Full Court answer the proposition?
MR BENNETT: Your Honour, they said that section 67ZC stood on its own and that Subdivision F was merely additional jurisdiction to accommodate the changes necessary after the referrals and that it ‑ ‑ ‑
GUMMOW J: And did they explain how, if it stood by itself, it could be valid?
MR BENNETT: No, your Honour.
KIRBY J: They explained it by reference, I think, to the international moves in the Convention on the Rights of the Child ‑ ‑ ‑
MR BENNETT: Yes, I am sorry.
KIRBY J: ‑ ‑ ‑ and said that that Convention draws no distinction between alien children and non‑alien children. It imposes obligations on the country. Those obligations have been accepted by Australia and therefore one construes this part, assuming that the Parliament of this nation has conformed to its international obligations.
MR BENNETT: Yes. That was the way they did it as a matter of power, the external affairs power, which is, of course, not referred to in the Act, but I will come to the external affairs power ‑ ‑ ‑
GLEESON CJ: Before you get to that, there is a question of construction of the Act.
MR BENNETT: Yes, and that is the next matter I propose to turn to. So my submission thus far then has dealt with the first issue, which is Subdivision F. We submit Subdivision F sets out the whole of the relevant operation of section 67ZC, and this case is quite clearly within none of the categories referred to in Subdivision F.
GLEESON CJ: I am sorry, before you leave that, what did the majority of the Full Court say about 69ZH(3)?
MR BENNETT: They stressed that subsection (1) used the words:
Without prejudice to its effect apart from this section –
and they seem to have picked up in that the rest of the Act, whereas, we submit that what subsection (1) is referring to is the other provisions of Subdivision F. So they treated the whole of this as additional jurisdiction or an additional basis for jurisdiction rather than as something which defined the whole of that basis.
KIRBY J: Would you remind me of the time sequence? This was part of the Family Law Reform Act 1995, was it not?
MR BENNETT: Yes. Your Honour, we have prepared a summary which we have given to your Honours this morning containing three pages entitled “Welfare jurisdiction of Family Court under Family Law Act 1975 (Cth)” and that sets out the history of the provisions.
KIRBY J: Does it set out when the Convention on the Rights of the Child was open for signature, when Australia signed and ratified it in relation to this legislation, or can you tell us ‑ ‑ ‑
MR BENNETT: I am not sure that it does, your Honour, but that was 1991.
KIRBY J: So that the Convention was 1991. Did we subscribe to it ‑ ‑ ‑
MR BENNETT: We subscribed to it in 1991, your Honour.
KIRBY J: In 1995, this legislation was introduced expanding the jurisdiction of the Family Court?
MR BENNETT: This legislation was introduced in 1995, yes, your Honour.
KIRBY J: Does that indicate or does that suggest that a purpose of this legislation, which I think was the legislation that incorporated all those many references to the paramountcy principle of the welfare of the child into our Act – does that not suggest that it was a purpose of the 1995 amending Act to give effect to Australia’s obligations under the Convention?
MR BENNETT: No, your Honour, because the second reading speech uses words like “consistent with”, and I will take your Honour to that in due course. The exposure draft of the Bill that was first introduced contained the section specifically referring to the Convention, and that was taken out in subsequent drafting. I will show your Honours that in due course.
GUMMOW J: It would have had some political sensitivity, if there would have been this reference of power by the States, some of which were dragging their feet, I think.
MR BENNETT: Yes.
GUMMOW J: You would not have needed the reference from the States. It all could have been done under the external affairs power.
MR BENNETT: Precisely, your Honour.
GUMMOW J: So that is the political compact.
MR BENNETT: Yes.
KIRBY J: There would be a question as to whether under the external affairs power the Parliament would have the power to do it under that provision, but for better certainty or out of the delicacy of the Federation, it proceeded to seek the reference of powers.
MR BENNETT: Your Honour, we submit that there would be power under the external affairs power to pass legislation expressly implementing the Convention, but that that has not been done.
CALLINAN J: We are not hearing the States on that, are we? Anyway, we do not have to decide that, do we?
MR BENNETT: There have been 78B notices, your Honour.
CALLINAN J: We do not have to decide whether ‑ ‑ ‑
MR BENNETT: Your Honours, do not, no.
CALLINAN J: ‑ ‑ ‑ there would have been power under the external affairs power, because, if we did, I would ‑ ‑ ‑
KIRBY J: But there are submissions before us that suggest, I think – and I think there have been 78B notices – that the external affairs power supported the broader approach to the welfare jurisdiction which the amending Act of 1995 introduced. Is that not so?
MR BENNETT: Your Honour, this really answers Justice Callinan’s question – perhaps I should answer first. There is no contradictor for the proposition that there would be power under the external affairs power to enact broad provisions in relation to the welfare of children.
KIRBY J: But that might be because the States think the matter is beyond argument. I think they have been given a 78B notice, have they not?
MR BENNETT: Yes, your Honour.
KIRBY J: Well, if they are not here, that is their lookout.
CALLINAN J: I would need a lot of persuasion that this is within the external affairs power. If it is relevant to your argument, do not assume that I would accept it to be so.
MR BENNETT: No, your Honour, it is not relevant to my argument because my argument is that we have not done it. Not having done it, whether we could do it is simply ‑ ‑ ‑
KIRBY J: You know as well as everyone else that you do not have to spell it out in the Act. The question is not whether it is spelt out in the terms of the Act. If there is constitutional power, there is constitutional power.
MR BENNETT: Yes, but here one has a subdivision of the Act expressly allocating and limiting the legislation to various heads of constitutional power. That is a very strong suggestion that it was not intended to operate under any other constitutional power. One also has the question ‑ ‑ ‑
KIRBY J: Does the second reading speech support that approach?
MR BENNETT: I will take your Honour to the second reading speech.
KIRBY J: In your due time; do not do it now if it is out of time.
MR BENNETT: I have been asked about this and I am coming to the second part of my argument. It is convenient to go on dealing with it. The second reading speech is in the bundle which Amnesty International has provided. What was said basically before I take your Honours to the words was that it is consistent with the obligations.
GUMMOW J: What I think you might have against you, Mr Solicitor, is the consideration which goes back a long way, certainly to a decision of Justice Starke back in the twenties, that it does not matter what they are intending to do if the fact is that the statute on its proper construction can be seen by the Court to be based on one head of federal power. It does not matter that the Parliament was intending only to base it on another.
MR BENNETT: No, I accept that, your Honour, but with the external affairs power and the implementation of a treaty or, as is suggested by Amnesty, a particular principle of customary international law, one would, in my respectful submission, expect to find something more specific. One can understand even under the external affairs power where the subject matter clearly relates to an external affair that one could find that without an express reference, but where the external affair is the implementation ‑ ‑ ‑
GUMMOW J: And we did that in one of the cases on the child abduction provisions. It was said they do not precisely mirror the Convention and we said it does not matter; it is an external affair. Harrington, I think it was.
MR BENNETT: That is a different principle, your Honour. That is the principle which says that when one does choose to legislate pursuant to the effect of a Convention, or if there is an external affair generally, one does not have to follow the Convention slavishly. One could, for example, implement all but one provision of the provisions of a Convention or add some relevant provision which made the Convention adaptable to Australia. That is not to say that one can pick up any piece of legislation which deals in a very careful way with particular heads of power and say that because there is an international Convention, the Act is an implementation of or can be justified as a head of power under that Convention. Nothing in the industrial relations case goes as far as that.
GUMMOW J: Anyhow, I took you from tab 13, I think.
MR BENNETT: Yes. The relevant passage in the second reading speech of Mr Duncan, who was then the parliamentary secretary to the Attorney‑General, appears at page 2759 of Hansard.
KIRBY J: Which tab is this?
MR BENNETT: Tab 13, your Honour. Your Honours see in the first column on that page halfway down, this statement appears:
In December 1990 Australia ratified the UN Convention on the Rights of the Child.
I think that should be 1991.
That convention contains a number of basic rights in the raising and development of children towards adulthood. The objects clause to the new part VII of this bill gives recognition to such rights by specifying a number of such rights that should be observed in any agreements or decisions concerning children.
That is a long way short, we would submit, of implementing it. It is also significant that when your Honours go to the Act as it was initially introduced into Parliament – and this is in the materials we provided to your Honours this morning – your Honours will see the first exposure draft was, if your Honours look at the date at the very bottom of the page in the footnote, 28 June 1994. That document has a section 60B(2) on the next page, which says:
The object of this Part is to ensure that children receive adequate and proper parenting . . . and meet their responsibilities . . .
(2) The principles underlying this object ‑
so the object is limited to parents –
are that, consistent with the United Nations Convention on the Rights of the Child ‑ ‑ ‑
KIRBY J: I am sorry. Which clause is this?
MR BENNETT: Section 60B(2) on page 2.
KIRBY J: Yes, thank you.
MR BENNETT: Then various matters taken from it. So even there, we would submit, that falls short of seeking to implement it, except perhaps in a very narrow way, because the object is:
to ensure that children receive adequate and proper parenting . . . and to ensure that parents fulfil their duties . . .
(2) The principles underlying this object –
are those in the Convention. That does not suggest a broad jurisdiction to make any orders that one wishes for the welfare of children, not concerned with parenting as such.
KIRBY J: I take the force of that submission, but it has to be weighed against, first, the sequence of events; the adoption of the international standard and Australia’s subscription to it; second, the principle of law that is very old standing and is applied many times in many courts that you can construe your legislation so far as possible to ensure that you are not in breach of your international obligations; and third, that this is a grant of jurisdiction to a national court and it would not normally be read down; it would be given an ample application. So that those three are, as it were, elements that argue against the narrow view that you are putting to us.
MR BENNETT: Your Honour, the contrary view so far as breach is concerned is an absence of legislation. So the absence of legislation is not going to be a breach of a convention of this type. May I just show your Honours then what happened a few months later. If your Honours go to the next page in the document, your Honours will see the Bill which was ultimately put to Parliament.
The footnote at the bottom dates that at 12 October 1994. Your Honours see that section 60B is quite different and the references to the Convention have been removed. Subsection (1) is in the same form, and that reference is removed. So that the reference to the Convention first was a very limited reference, talking about the reasons for having a particular purpose far more limited than what is submitted here and, secondly, even that is removed.
We have set out in our submissions in paragraph 42 a range of other matters which we would submit demonstrate that Parliament was not intending to implement the Convention. There is the reliance on the specific heads of power, which I have referred to. The fact that the reforms in relation to children were directed at enhancing parental responsibility, as I have shown, and section 67ZC reproduced earlier provisions, as we have shown, perhaps in clearer terms that no suggestion that it got additional breadth from the Convention. There is no mention of the Convention in the Act and the long title and the statement of purposes in 60B both confine themselves to issues within the marriage power and the references of power, and the passages in the second reading speech I have taken your Honours to ‑ ‑ ‑
KIRBY J: You cannot ignore the fact that the Act after 1995 was full of references to the principle taken from the Convention on the Rights of the Child.
MR BENNETT: Certain of them.
KIRBY J: I mean that is the historical sequence of events and the obvious purpose of Parliament, to make all those amendments to our statute to make it conform to the Convention on the Rights of the Child, which is a very proper thing for Parliament to do, having subscribed to the Convention.
MR BENNETT: If that had been so, your Honour, Subdivision F would have been worded differently and would have had another section.
KIRBY J: So you say but F is one part of the Act but the Act is full of other references which are in terms the reference to the paramountcy principle, which is taken right out of the Convention on the Rights of the Child.
MR BENNETT: The paramountcy principle existed before the Convention, your Honour, in a number of places, but the paramountcy principle apart from anything else – and there are two or three answers to what your Honour has just put to me – the paramountcy principle for the reason I gave earlier cannot possibly apply to all matters concerning children and parties unrelated to the marriage power and the parental responsibility and matters of that kind.
KIRBY J: That is a different question, that is down the track. At the moment we are just looking at whether or not these provisions which expanded the powers of the Family Court, in terms which appear to give a very large welfare jurisdiction, are to be read down as you suggest to the grant of particular limited powers or are to be read so as to ensure that Australia conforms to its international standards. What is the point of Australia signing international conventions and then ignoring its international obligations?
MR BENNETT: Your Honour, it is not a question of ignoring them, the legislation is consistent with them.
KIRBY J: So you say, but I think some of the legislation here has been found by the United Nations Human Rights Committee to be inconsistent.
MR BENNETT: And, your Honour, that is something which Australia has disputed internationally.
KIRBY J: I would to have that material if it is not already before us.
MR BENNETT: In any event, your Honour, the fact that a committee takes a particular view ‑ ‑ ‑
KIRBY J: It is the United Nations Human Rights Committee of the world. It is not just a committee to be dismissed in those terms and it has an Australian member, distinguished Australian professors who are parties to the decisions of the committee.
MR BENNETT: Yes, your Honour, but its decisions are not decisions which determine domestic law questions of the type which we are concerned with here.
KIRBY J: They determine the understanding of the international community of the obligations imposed by the Convention.
MR BENNETT: That is the highest it can be put, your Honour.
KIRBY J: It is pretty high, is it not?
MR BENNETT: Not for this purpose, your Honour.
KIRBY J: We just ignore international convention committees now, do we? That was not the standard that Australia once observed.
MR BENNETT: Your Honour, I am not suggesting that Australia should ignore them. What I am submitting is that so far as the argument before this Court is concerned, that is not a relevant consideration in construing this legislation. This legislation specifically sets out in a subdivision of the Act the various constitutional heads of power and provides that the relevant sections are to be limited by reference to those heads of power. It is very hard, we would submit, in the face of that to say there is another head of power which makes all this unnecessary and which Parliament was really relying on, although it never said so.
KIRBY J: You have turned up in this Court and so submitted. You have submitted to the Court in my time here that the Parliament does not have to spell out the heads of power on which it relies. The issue is validity. If there is power, it is valid.
MR BENNETT: It does not have to spell out, your Honour, but it can choose to do so and where one is construing the Act, the fact that it has chosen to do so is of great significance in seeing what has been done. It is a very different principle.
The other aspects of the second submissions concern the breadth of the parens patriae power and may I just make some general submissions about that. There have been a number of cases in England which are relied on by our learned friends which refer to the width of the parens patriae power. Almost all of them are cases where the court says, of course, the power could extend indefinitely and has no limits and the boundaries have not been defined, but it either does not extend or should not be exercised in this case. One of the clearest of those is a case we have given your Honours called Re X [1975] Fam 47, a decision of the English Court of Appeal.
That was a case where there was a young girl of 14, who was said to be of a very sensitive nature, whose father had been, it was said, a notorious international roué, and a book was to be published about the life of the father. There was a lot of speculation as to who the father was. It is, I think, generally known, but it is not referred to anywhere in the case for obvious reasons. It was said that publication of this book would cause very great mental distress to this girl and she was, accordingly, made a ward of court and both her parents sought orders from the court prohibiting publication of the offending passages in the book.
The Court of Appeal said that the jurisdiction was a wide one, but that it should not be exercised. One of the reasons they gave for not exercising it was that they balanced the interests of the child against the interests of freedom of speech and the publishers, and came down on the publishers’ side. Now, that type of operation would be impossible if one had a broad parens patriae power to make orders against third parties unrelated to or beyond the matrimonial causes or marriage power and required the paramountcy principle to be observed. One can think of numerous absurd illustrations ‑ ‑ ‑
GLEESON CJ: You do not have to go past an illustration of somebody who has a child in unlawful detention, do you? Does that give rise to some balancing considerations?
MR BENNETT: Well, that is one of the very reasons, your Honour, why this type of broad provision cannot apply to that type of case.
GLEESON CJ: Most people who are unlawfully detained have a right to be released, not as a result of the exercise of some judicial discretion based on balancing considerations.
MR BENNETT: Precisely. If there is unlawful detention, that is so, although it is a question of the jurisdiction of the Family Court to order it, but, of course, if there is unlawful detention, Chu Kheng Lim makes it clear that the person has a right to be released which the Migration Act cannot constitutionally take away, but that is a different type of consideration. An example given in a lot of the cases, of course, is the obvious analogy of a child in penal detention, but one could think of many other examples. We have given the example ‑ ‑ ‑
HAYNE J: Does the power extend – taking the case of a child in penal detention – to, for example, an order that the child be permitted to undertake particular religious observances?
MR BENNETT: There would be no power to do so, your Honour.
HAYNE J: Why not?
MR BENNETT: Because it is not something which falls under any of the relevant heads of power. It is too remote ‑ ‑ ‑
HAYNE J: Under the old wardship jurisdiction, would it have extended thus far?
MR BENNETT: Your Honour, under the old wardship jurisdiction, the jurisdiction would have extended to requiring the parents to bring the child up in a particular religion.
HAYNE J: But the child who was lawfully detained, would the wardship jurisdiction extend to telling the gaoler to permit the child to undertake particular forms of religious observance?
MR BENNETT: Your Honour, that is a proposition that was never decided and none of the cases go that far, but certainly some of the dicta in Re X suggest that it might, but that is in a context, of course, where there is no paramountcy principle.
HAYNE J: It is in a context where the wardship jurisdiction really took its current shape, so far as it has any shape, only in the last 30 or 40 years of the 20th century. Previously it was concerned only, or at least largely, with matters of property.
MR BENNETT: Certainly there are cases such as Re Marion of course and the line of cases dealing with particular forms of medical treatment. There are many cases in that line of country.
GUMMOW J: Yes, but they are fairly recent.
MR BENNETT: They are recent and they are concerned of course with an aspect of parental responsibility or something closely related to parental responsibility, namely, operations to which the parents do not have the implied authority to consent, but they are limited in that way. Indeed, much of Re Marion, as your Honours will see when I come to it, is concerned with the special nature of sterilisation and the particular issues associated with it rather than the more general things.
One could not, for example, under the wardship power or any other related power order a landlord – if the father’s landlord had a condition in the lease saying no children are allowed in this unit, the Family Court could not order that the landlord permit the children to go into the unit on access visits. One does not have that sort of broad power over matters which go further than the matrimonial relationship.
HAYNE J: What then is unifying the power? Is it limited to questions touching parental responsibility?
MR BENNETT: And matters closely related to them of a limited class which the Court has held to apply, yes, your Honour.
HAYNE J: It is the extension where the devil lies, is it not, Mr Solicitor? Just how big an extension is there?
MR BENNETT: However big it is, it is nothing like what has been done in this case.
GUMMOW J: Are we attempting to construe 67ZC at the moment?
MR BENNETT: No, your Honour. I am assuming your Honours are against me on the first argument. If your Honours are with me on the first argument, we do not get to any of this.
GUMMOW J: Yes, that is right. At some stage we have to decide whether what the Family Court did was based in their statute. The only candidate seems to be 67ZC. Is that right?
MR BENNETT: And 68B, your Honour.
GUMMOW J: I am not sure I quite understand what is happening. When it uses the expression “Orders relating to welfare of children”, are you concerned to disabuse the notion that what is caught up there is a statutory re‑enactment whatever might have been the Chancery Court’s jurisdiction?
MR BENNETT: Yes, your Honour.
GUMMOW J: And point 2, to disabuse the notion that the international convention had in mind the parens patriae jurisdiction. In 67ZC one is based in the external affairs power. I do not see what the parens patriae jurisdiction has to do with the price of fish unless that is what the international convention is talking about.
MR BENNETT: We submit it was not. The international convention of course is ‑ ‑ ‑
GUMMOW J: I very much doubt it.
MR BENNETT: - - - dealing with so many different legal systems, it hardly has in mind the particular ‑ ‑ ‑
GUMMOW J: Exactly. I do not think they were pondering Lord Eldon.
MR BENNETT: No, they are not, your Honour.
KIRBY J: But there is a specific article in the Convention, is there not, about detention of children – 38, I think it is?
MR BENNETT: Yes, your Honour.
KIRBY J: It says that they are not to be detained or, if detained, only for a very short time as necessary. That is said to be a provision which we have subscribed to and in respect of which we are now in breach unless one takes the view that the large power given by 67ZC(1) is enough to ensure that we are not in breach of that obligation.
MR BENNETT: Notwithstanding a specific statutory requirement to the contrary.
KIRBY J: Well, it does say, “In addition to the jurisdiction that a court has under this Part”.
MR BENNETT: I am sorry, your Honour, I was referring to the Migration Act provision. That comes to refer to a submission which I make later. The current submission is that the parens patriae jurisdiction in England is somewhat wider than we have enacted but even if it were held to be applicable, it would not go so far as to justify the sort of order made in this case, which is far removed from anything to do with parental responsibility.
GUMMOW J: To be precise, the question is, is this an investment of the federal jurisdiction under a federal law which would displace, not what they are doing in England, what happens in the States under their inherited jurisdiction in the English Chancery decisions?
MR BENNETT: Yes, and what happens under other federal laws in the present case.
GUMMOW J: Yes.
KIRBY J: But is there not a flaw in that logic, that you are trying to read down the language of a federal statutory provision, namely to make orders in relation to the welfare of children, which is a very broad remit, to narrow that to some notions that existed in the prerogative powers of the monarch or in the Chancery powers of England in the 19th century.
MR BENNETT: I am not seeking to narrow it to that, your Honour. I am seeking to say it is different from that. But even if that is relevant to the scope of the power, that would not have gone far enough for this case. There is no case where ‑ ‑ ‑
KIRBY J: Well, what is the point of this? Our duty, if it is applicable, is to construe orders relevant to the welfare of children and in the context of the jurisdiction of a superior court of the Commonwealth.
MR BENNETT: In the context of the rest of the Act as well, your Honour.
KIRBY J: Of course, but just taking those words. We are not going to, as it were, put blinkers on and say we are going to construe orders relating to the welfare of children strictly in accordance with how the monarch’s parens patriae jurisdiction was exercised.
MR BENNETT: I am not suggesting that, your Honour, except defensively in that one of the matters that is put against me is that this section is implementing the parens patriae jurisdiction.
GUMMOW J: But how could it? What would be the head of power?
MR BENNETT: Precisely, your Honour. Maybe in the Territories one could do it.
GUMMOW J: Of course.
MR BENNETT: But that is as far as one could go. In my respectful submission, it simply cannot be read that widely for reasons I have given. Can I just show your Honours another couple of English cases which are of interest. One is Re Arif.
KIRBY J: Let me just understand. You are responding to a submission from your opponents who say when you come to give meaning to orders relating to the welfare of children that incorporates at least the jurisdiction which courts have exercised in the parens patriae manner?
MR BENNETT: Yes, your Honour.
KIRBY J: I see.
GUMMOW J: You have to say that would be invalid. That is what it means. It is invalid, in the absence of Commonwealth head of power.
MR BENNETT: I do not need to go so far, your Honour, but what I submit is that this Act has been tied to specific heads of power and, as a matter of construction, it has not chosen to go to the full width that it could have gone. Let me show your Honours how this has been dealt with in England. Re Arif [1968] 1 Ch 643. That was a case where there were two children who came to the United Kingdom. In each case it was said that the father was someone who was in the United Kingdom and in each case the view was taken by the government that the person was not the father. What was sought to be done was to make them wards of court and then obtain orders in their welfare which would contradict the steps the Minister had taken.
GUMMOW J: Look at 647E, the first sentence. What is that one?
MR BENNETT: Yes. That is the other aspect of it, your Honour, that the parens patriae jurisdiction, of course, was confined to citizens or non‑aliens, if one likes.
GUMMOW J: What does “take under a wing” mean?
MR BENNETT: What is put against me, your Honour, that I have to deal with is that the jurisdiction here is general and not confined to Australian citizens and it picks up the old parens patriae jurisdiction and applies it to everyone as if they were citizens. That is what against me which I have to deal with.
KIRBY J: And that has a foundation in the Convention which draws no distinction between citizens and non‑citizens.
MR BENNETT: Your Honour, if it were an enactment of the Convention pursuant to the external affairs power, that might be so, yes.
KIRBY J: But even if it is construing ambiguous legislation, one takes into account that we are not going to be in disconformity with our international obligations unless it is clear. That was said by the present Chief Justice in S157.
MR BENNETT: Your Honour, nothing in this Act is expressed to deal with the aspects of the Convention which are put against me. May I just show your Honours one aspect of this case and that is, if your Honours go to the judgment of Lord Justice Russell at page 662E, his Honour says this in the second paragraph of his judgment:
It is, however, quite obvious that there are circumstances in which control over the person of a ward is not committed or referred to the judge but is by the law of England committed or referred to another agency or person ‑
as here under the Migration Act –
As a simple illustration, it could not be contended that the judge would have any jurisdiction to order that a criminal ward be transferred from place of detention A to place of detention B ‑
and that example appears in a number of cases in this Court ‑
however much the medical evidence before the judge suggested that the ward would be in better health at place of detention B. The reason is that the jurisdiction of the judge over the person of the ward is necessarily restricted by the fact that the law has given that aspect of control over the ward’s person exclusively to another agency.
That, we submit, is exactly what has happened here.
KIRBY J: We will come to that in the later arguments but this is all in the realm of the unwritten law. This is not dealing with the problem which we have before us, which is to reconcile the general provisions of the Family Law Act with the very particular provisions of the Migration Act. I can understand the argument you have on that, but these observations are all in the context of non‑statutory jurisdiction.
MR BENNETT: Your Honour, yes, that is so, but the non‑statutory jurisdiction, which it is said against me, this is based on, and it is a non‑statutory jurisdiction which has been held not to operate where other aspects of the law deal with the relevant subject matter.
KIRBY J: But my point is that when it is statutory jurisdiction the answer is found, and only found, in the terms of the statute.
MR BENNETT: I put the argument based on the terms of the statute, that these wide words we are instructed to read down in particular ways in the Subdivision F. There is also a decision which your Honours have not been referred to, but I will just mention it for the sake of completeness. In Re B, a coincidence, [1962] 1 Ch 201, that was a case where a mother took the view that she could educate children better than any school and there was an application under the wardship power in relation to it.
The court took the view that that was an area governed by education legislation which contained specific requirements about where children went to school and what could happen and therefore that the court, under the wardship power, should not exercise any broad power in relation to whether the children were educated by the mother or at school. It is another example of the broad equitable power being construed as not interfering with other legislative schemes, and it is for that only that I mention it.
I will not spend a lot of time on Marion’s Case beyond pointing out, as I already have, that the sterilisation was treated as a very special subject matter by this Court and it was something of course very close to the parental responsibility in relation to medical treatment and filling in a gap in areas where the parents could not consent.
The third area concerns the relationship between the Family Law Act and the Migration Act. I need say very little about that because the central proposition was accepted by the court below that the specific provisions of the Migration Act prevailed over the more general provisions. The area where we submit the Court went wrong in relation to this was to say that nevertheless the Court could move between the interstices of the Migration Act and deal with specific aspects of the Minister’s detention where there was no specific provision to the contrary.
Of course, we are dealing here with two Commonwealth Acts, so the test is not the test of inconsistency but the test of how one reads them together. The question of earlier and later does not assist much because both Acts are amended so frequently that it is almost impossible to come to any sensible conclusion about which provision goes before which provision.
The Family Court correctly concluded that the Migration Act was the specific Act and the Family Law provision the general one and we would submit that in accordance with normal principles for statutory interpretation where there is a specific scheme in relation to detention one does not interfere with that and give directions as to the manner in which the Minister is to deal with it.
GLEESON CJ: What is the State legislation in, for example, New South Wales or Victoria, under which children are committed to detention for offences against the criminal law or sometimes, as I recollect it – and my recollection may be imperfect – on the basis that they are at risk?
MR BENNETT: Yes. There was a decision of this Court in a case called J v Lieschke where the Court was very critical of the practice under the New South Wales legislation of charging children with being neglected children, as if it was a criminal offence.
GLEESON CJ: Yes, that is what I am trying to remember, yes. What was that legislation?
MR BENNETT: I think that legislation was the Child Welfare Act in New South Wales, but I may be mistaken.
GLEESON CJ: What is the specific legislation under which, if, a 15‑year old boy heaves a brick in somebody’s window and he has done it many times before, he might end up in detention?
MR BENNETT: Your Honour, it is a range of different legislation, I think, in different States. I think in some States it is dealt with under the Justices Act or corresponding legislation, some in the Crimes Act or corresponding legislation, some in the Child Welfare Act. I think all those Act pieces of legislation may have provisions, and there may be specific Acts in some States.
GLEESON CJ: Presumably, the Family Court does not have a jurisdiction to pass upon whether that is in his best interests?
MR BENNETT: That is clearly so, your Honour.
GLEESON CJ: What is the process of reasoning by which you come to that conclusion?
MR BENNETT: That these provisions are not of a width which enables that type of interference with other areas of law which affect children.
GLEESON CJ: Is not it just an application of the principle that a general statute does not derogate from the effect of the specific statute?
MR BENNETT: That is part of it, your Honour, although not in that case, because that is dealing with inconsistency under Commonwealth and State law, so one has to say, in those cases, that the Commonwealth law just does not cover what the State law covers, otherwise the State law would prevail. If, for example, the States were to refer to the Commonwealth in broad terms all power in relation to children, it would no doubt be open to the Commonwealth to pass legislation which overrode legislation of that kind, pursuant to that referral of power, but nothing like that, we would submit, has occurred in this case.
GUMMOW J: There are cases under the Family Law Act as it was first enacted which makes that clear – it may not – that the State community services legislation is not touched?
MR BENNETT: That is a different aspect. The Chief Justice was asking me about the criminal process against children. There are separate considerations in relation to child welfare provisions concerned with taking children from abusive parents and matters of that sort. Some of those are expressly preserved in Subdivision F.
GUMMOW J: Well, that is what I thought.
MR BENNETT: Your Honours will see in section 69ZK, there is a specific – and that reflects a number of cases – some of them in this Court ‑ where this legislation has been held not to interfere with those rights and obligations. Here, of course, one is concerned with a different area of Commonwealth endeavour.
Your Honour, the provisions of the Migration Act are no doubt familiar to your Honours from many recent cases. I will just remind your Honours of the sections. Your Honours, sections 189, 196 and 198 provide generally for mandatory detention. Section 5 defines “immigration detention” in a broad way and permits detention, for example, in the custody of a particular officer or at a place other than a place for immigration detention.
Section 273 permits the Minister to cause the establishment and maintenance of detention centres and regulations can make provision for their operation and regulation. So the Minister has in a sense total control once the person is detained. It would be inconsistent with that for other legislation to provide that the Minister must detain in a particular place or in a particular manner and matters of that sort. There are also various specific provisions in sections 252 and following which I need not take your Honours to.
KIRBY J: There is of course one way to look at this. That is to say that the Family Law Act is the general Act and the Migration Act is the particular Act, but there is another level on which one could possibly argue that the Migration Act is the general for detention but that in particular cases, if you can establish by evidence that there is a particular burden on a child, for example, by detention, then that would enliven another head of statutory power expressed in general terms and conferred on a superior federal court to make orders relating to the welfare of children in the particular case. Then for that purpose the Migration Act is the general because it is dealing with the generality of detainees but the Family Law Act welfare jurisdiction, if it be valid and if it be applicable, is the particular if you can establish particular burdens on the children.
MR BENNETT: Your Honour, one does not distinguish between general and particular Acts by looking at the application of the Act to a particular case, otherwise one could say of any general Act that it applies to a particular case and in its application to that case is more particular than the special Act or the particular Act.
KIRBY J: I just wonder if the question is not the generality and particularity of the provisions rather than the categorisation of the Act ‑ ‑ ‑
MR BENNETT: The provisions are very broad.
KIRBY J: ‑ ‑ ‑ in the business of construing the provisions.
MR BENNETT: But, your Honour, one cannot take a provision such as 67ZC and then say that applies to all children, it also applies to children in detention, therefore it applies to that very narrow category, therefore in that application this is the narrow Act and the Migration Act is the broad Act. That reasoning, in my respectful submission, simply cannot be applied because one is looking at the broader and the narrower provision, not the broader and narrower application of the provision. There would be no such thing as a general and particular Act if that line of reasoning could be applied in relation to it.
KIRBY J: I saw in the written submissions that there was evidence at the interlocutory level that the children in question in this case were harmed by their prolonged detention. Is that the case? Is that evidence in the appeal book?
MR BENNETT: I think it is, your Honour, but that issue was never litigated.
KIRBY J: I appreciate that, but the evidence was before the court for the interlocutory purpose.
MR BENNETT: Yes, there was evidence of that.
KIRBY J: It does not require too much imagination to assume that long detention of children is not good for them; it is bad for their welfare, contrary to their best interests.
MR BENNETT: Your Honour, that is not the issue which is raised in this appeal.
KIRBY J: That is a question. If that is what the Convention requires and that is what we have agreed to as an international person and that is the sequence of events of the Convention and the statute, speaking for myself, if there is any ambiguity, I will construe the statute to assume that we have conformed to our accepted international obligations.
MR BENNETT: I have given your Honour the reasons why we submit that is not the situation.
CALLINAN J: Mr Solicitor, could an application be made not, in fact, for the orders actually sought but for orders which might have had a like effect to some extent under section 65C of the Family Law Act?
MR BENNETT: Your Honour, section 65C, that is concerned with a parenting order which, of course, can be dealt with under the Act, but the effect of making such an order is merely an effect on the rights and obligations of the person in whose favour it is made and so it would not enable one to take a child out of detention any more than it would enable one to take a child out of penal custody or custody in an institution for people who are of unsound mind or any of the other types of detention which can exist.
GUMMOW J: A parenting order is defined at length in 64B, is it not? It is quite a complicated concept.
MR BENNETT: Yes, it is found in section 64B.
GUMMOW J: Section 64B(3)?
MR BENNETT: Yes. Your Honour, that is concerned with the order dealing with a person – but it has to be construed of course in the light of the marriage power and the other relevant powers. In any event, that was not sought in this case and that does not arise in this case. In relation to Marion’s Case, can I just remind your Honours by reference only of six passages in that case which ‑ ‑ ‑
KIRBY J: This is back to argument two, is it?
MR BENNETT: No, argument three, your Honour – I am sorry, argument two, yes. I think I have virtually finished arguments two and three. The passages in Marion’s Case which are relevant to the construction of the section are these. Page 257, point 5, where it is said:
What was achieved by the amendments of 1983 –
so this is a long time before the Convention –
and was not rescinded by the change to the Act in 1987 was a vesting in the Family Court of the substance of the parens patriae jurisdiction, of which one aspect is the wardship jurisdiction. And we agree with McCall J in the present case that the fact that the Family Court “may not have the power to make a child a ward of the court does not . . . prevent it exercising the general parens patriae power.
So that power, so far as it went, was analogous to the parens patriae jurisdiction, but that did not necessarily mean that it went beyond it to the extent sought here. At page 258, point 8 their Honours say:
The more contemporary descriptions of the parens patriae jurisdiction over infants invariably accept that in theory there is no limitation upon the jurisdiction. That is not to deny that the jurisdiction must be exercised in accordance with principle.
And the case cited in footnote (57) is Re X, the one about the book. At page 260, point 5 it is made clear that the mechanism in relation to sterilisation is to authorise the parents to consent or to authorise some other person to give consent, so one is talking about an aspect of parenting, something which parents can do or can do with the extension of the court’s power. At 261, point 5 there is a quotation from Chief Justice Gibbs’ judgment in Fountain v Alexander:
“The power of the Parliament to make laws with respect to marriage does not extend to laws for the protection or welfare of the children of a marriage except in so far as the occasion for their protection or welfare arises out of, or is sufficiently connected with, the marriage relationship.”
So it is not just the fact that they are children of a marriage. It has to be something more than that.
KIRBY J: Where was that passage, I am sorry?
MR BENNETT: In the middle of page 261, your Honour.
Clearly there are limits on the scope of the welfare jurisdiction, as with the custody and maintenance jurisdictions, though the scope of the jurisdiction will nevertheless be very wide . . . there can be no limitation on the Court’s powers emanating from the need to preserve the scope of State legislative powers . . . to take the law back beyond the Engineers’ Case.
At 262 point 3 they again make the point about sterilisation being something where there is a consent which - the doctor is not required to perform the operation, the doctor is merely protected by the consent. Finally, at 263 point 4 they say:
it is enough to say that an order of the Family Court authorizing a sterilization operation would emanate from a constitutionally valid Commonwealth law ‑
Now, your Honour, in my respectful submission, it is clear from the whole of that judgment that sterilisation is being treated as being in a unique category, almost a sui generis category. That appears from the question the Court poses for itself in this judgment at page 239, the question being in the middle of the page, “Is sterilization a special case?” and they go on to answer that, “Yes”.
I have dealt now with the first three matters. I come to the question of illegality, and I stress that this is something on which we were not heard below and on which no supporting submission was put by the other parties, something which in effect the Family Court embarked on on its own motion. It accepted, as I have said, that the Migration Act overrode the Family Law Act, but it then applied Al Masri.
Now, Al Masri was a case in which a person had, under the Migration Act, requested that he be removed back to his home which was in the Palestinian territories. There was a practical problem in getting him there, which was that neither Israel nor Egypt nor Jordan nor Syria would co‑operate with transportation to those territories, and the result was it had taken a long time to achieve the result which had not yet been achieved.
The Court held that on the basis of the decision in Chu Kheng Lim, which had said that detention is only authorised to the extent it is necessary for removal, that it did not support detention when there was no immediate prospect of removal. What in fact happened was that shortly after the judgment, as a result of further representations and efforts, Israel relented and allowed him to be transported through Israel and he was in fact removed through Israel.
One of the things of course the case illustrates is that one can never say never in this area, that there is always a possibility that a country will change its mind, that there will be a regime change or that a third country will accept a person. So one can never say that removal of this person is absolutely impossible for all time.
The question which arises in the removed cases is at what point, if at all, can one say this detention has gone on so long because of all the difficulties associated with removal that, one can say, it no longer has the relevant purpose, and that is the argument in Al Masri. As I say, I do not propose to go into that argument in great detail or beyond what I have said, except to say that our submission is that so long as the purpose is retained, it certainly cannot matter that the detention is indefinite. Detention will always be indefinite in that one cannot predict the day when the litigation will conclude, that appeals will be exhausted or when it will be possible to facilitate the particular removal, often to countries to which it is very difficult to facilitate removal, but the ‑ ‑ ‑
KIRBY J: So your submission is it may seem very long, but it is not indefinite, its boundaries are fixed by the end of the litigation?
MR BENNETT: Either the end of the litigation or, as was said in Chu Kheng Lim, by the election of the person to say, “I wish to be returned” at any stage.
GLEESON CJ: Now, that is the point on which the decision in the present case turned, is it not?
MR BENNETT: Yes. That is what I was about to come to. The court then said, in the total absence of evidence, children cannot consent. There was a short discussion of Gillick’s Case, but in the absence of any evidence at all, it was said that children of the ages here, the eldest being 14, could not give a consent. It was then said the parents could not give a consent on their behalf, and the reason given is a rather peculiar reason – the reason was a statement that children are not chattels of the parents.
Now, why that should stop the parents giving a consent to a juridical act by the child in the ordinary course of events is unspoken, but the conclusion drawn from that is that in the case of children it will always be indefinite. That itself contains two further fallacies. The first is that Al Masri does not depend on it being indefinite in the sense of uncertain duration; it rather depends on the extreme length and absence of serious possibility of removal. The second factor is that, of course, in any event, in relation to children, it would come to an end when the child ceases to be a child. So in that sense it has an even more finite end than in the case of an adult, whereas the Family Court’s reasoning would apply to a child who is two days short of his or her 18th birthday.
But, in any event, the absence of capacity to consent is completely irrelevant in this case, because if the matter had been argued, the Family Court could, of course, have been informed that this was a case where all remedies had been exhausted, so there is a duty to return the children as soon as it can reasonably be achieved. The question of their consent or absence of consent is totally irrelevant. The question of consent only arises if there is to be a return while the litigation is proceeding. If the detainee says, “This is going on too long, I would rather give up and go home”, that is the situation where the consent becomes relevant and that is what the Court relied on in Chu Kheng Lim, but nothing could be further from relevance in this case.
GUMMOW J: Now, in Lim there was in the statute a 273‑day limit, was there not?
MR BENNETT: Yes, there was, your Honour.
GUMMOW J: That has been removed?
MR BENNETT: Yes, your Honour. It was not that on which validity depended, at any rate. The validity in Lim flowed from the simple fact that the person could elect to be returned and thus put an end to it. But the ultimate question – I mean, this is a question we will have to argue in the Al Masri cases, but the ultimate question for constitutional purposes is, what is the statutory purpose of the detention and can the detention exist for that purpose where there is some degree of difficulty, and the question of how great that degree has to be, in causing the return to take place. Now, none of that arises here.
The Full Court simply went off on a lengthy excursus about consent and children not being chattels, so the parents could not consent, to say that there was the saving feature in Chu Kheng Lim was absent. In my respectful submission, that is simply erroneous. Your Honour, those are the submissions for the appellant.
GLEESON CJ: Thank you Mr Bennett. Yes, Mr Tilmouth.
MR TILMOUTH: May it please the Court, can I commence with the question of jurisdiction and power in the Family Court and with my learned friend’s submissions about Division 12, and particularly section 69ZE and 69ZH of the Family Law Act, and deal with the submission that, in effect, those two provisions govern the whole of Part VII, as it was put at one stage, or that they were exhaustive of the power of the Family Court.
GUMMOW J: Now, it is not just the Family Court, is it? If you are right, the Federal Magistrates Court would be in the same position.
MR TILMOUTH: Yes, insofar as it has some of the jurisdiction.
GUMMOW J: By reason of 69H(4).
MR TILMOUTH: Yes. Now, your Honours, the primary ‑ ‑ ‑
KIRBY J: Would you give me those sections again?
MR TILMOUTH: Yes. They were 69ZE and 69ZH. They are in Division 12 of Subdivision F. The argument is that they confine the jurisdiction. Now, the fault with that argument ‑ ‑ ‑
GUMMOW J: It is not a question of confinement. The first question is what is the law of the Commonwealth under section 76(ii), that we are speaking of, what rights and duties does that law create? The next question is, what is the law which confers jurisdiction under 77(i) of the Constitution?
MR TILMOUTH: Well, your Honours, in our submission, in relation to that matter, the law is the Family Law Act, and more specifically Part VII, and it is a law, in our submission, with respect to section 51(xxi), which is the marriage power, and part of our submission is that Division 12 which was relied upon simply makes it clear that apart from the referred powers, which, in our submission, relate basically to exnuptial children, the later provisions and, in particular, 69ZH is simply a saving provision, as it were, to confine Part VII within constitutional limits, that is, relating to the marriage power or, if necessary, the matrimonial causes power. That is all, in our submission, that ZH does.
GUMMOW J: I do not understand it. What section do you point to? This case is the law which founded the jurisdiction of the Family Court within the meaning of 77(i) with respect to a matter within the meaning of 76(ii).
MR TILMOUTH: Well, in the ultimate result, your Honour ‑ ‑ ‑
GUMMOW J: You have to be specific.
MR TILMOUTH: Yes. Within the ultimate result it has to be section 67ZC and/or 68B. Section 67ZC is the welfare jurisdiction and 68 ‑ ‑ ‑
GUMMOW J: Now, on the face of it, they are invalid, are they not?
MR TILMOUTH: In our submission, no, because the welfare jurisdiction in Part VII has to be read with ‑ ‑ ‑
GUMMOW J: The welfare jurisdiction in 67ZC.
MR TILMOUTH: Yes, which is in Part VII ‑ ‑ ‑
GUMMOW J: Yes, of course it is.
MR TILMOUTH: ‑ ‑ ‑ has to be read as a welfare jurisdiction with respect to children of the marriage. That is, in our submission, how the whole part fits together. That is, in our submission, what section 69ZH purports to do.
In our submission, it has nothing to do with confining the whole of Part VII completely in effect to cases of referral. What 69ZH does, in our submission, if the Court pleases - and it does refer to and pick up in subsection (2), sections 67ZC and 68B – is to have effect 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 ‑ ‑ ‑
GUMMOW J: Then you have to read subsection (3). All of that would support Marion’s Case. I can understand that.
MR TILMOUTH: Yes, indeed. Our submission in effect is that 69ZH is not, as it were, the tail wagging the whole dog, which is Part VII; it is simply confining or reading down or saving for our purposes 67ZC and 68B within constitutional limits.
GUMMOW J: But 69ZH(3) reflects what Chief Justice Gibbs said in Fountain, which is later repeated in Marion’s Case, does it not?
MR TILMOUTH: That is our submission. As I put it, the effect of that is to save the earlier wider provisions from any question of constitutional invalidity by reading them down in effect to the marriage power in 51(xxxi) of the Constitution. Read in that way, which, in our submission, is the appropriate way to read it, it does not take away the welfare jurisdiction which was first conferred in 1987, which was in effect the parens patriae jurisdiction as interpreted by this Court in Marion’s Case.
GUMMOW J: It was the parens patriae jurisdiction insofar as it was a law in relation to marriage, and that is what is the point of Sir Harry Gibbs’ qualification.
MR TILMOUTH: Indeed.
GUMMOW J: Otherwise you would not have needed State references and so on.
MR TILMOUTH: Quite. Our submission is in effect ‑ ‑ ‑
GUMMOW J: The parens patriae jurisdiction particularly was concerned with illegitimate children.
MR TILMOUTH: In effect then, the welfare jurisdiction, as we submitted, save for referrals in the case of exnuptial children, would be a welfare jurisdiction with respect to children of the marriage or having the connection with children of the marriage.
GUMMOW J: Yes, but what you have to do really is read out section 69ZH(3).
MR TILMOUTH: Well, read it down with ‑ ‑ ‑
GUMMOW J: And construe 67ZC as if it did not have that limitation. It may be that the marriage power is wider than Sir Harry Gibbs thought it was when one remembers that bitter series of cases in the 1980s, but that is the balance that has been struck by the Parliament. That is their view of it in 69ZH(3), a cautious view perhaps.
MR TILMOUTH: Can I deal with this in two ways if I may, if the Court pleases.
GLEESON CJ: Just before you do, there is an expression that you have used on a number of occasions and I have not quite picked it up. Were you saying “children of a marriage” or “children of the marriage”?
MR TILMOUTH: I would have to say – I am sorry if my language was loose. I have to pick up from 69ZH the children of a marriage to mirror the constitutional head of power, the marriage power, which relates to marriage and which has been construed of course as also encompassing jurisdiction with respect to children of the marriage within the meaning of the Constitution.
GLEESON CJ: So, provided a child in question was a child of a marriage, section 67C extended generally to making orders in relation to that child’s welfare?
MR TILMOUTH: Yes, that is the primary submission.
GLEESON CJ: Thank you.
GUMMOW J: To get that proposition you have to go beyond Fountain v Alexander and those other cases, do you not?
MR TILMOUTH: Perhaps so. Can I deal with this in another way. In our submission, just to isolate Subdivision F and those two provisions and say that they control the whole meaning of the earlier Part VII is to completely ignore the legislative history in which this whole part came about and the jurisdiction was vested.
GUMMOW J: Just go back a little. The reason why you have to go beyond Fountain v Alexander and those other cases is the identity of the other party to this litigation. It is the Minister.
MR TILMOUTH: Indeed, that is true, and indeed perhaps what the other ‑ ‑ ‑
GUMMOW J: It is not a grandparent or a foster parent and so on and so forth, it is the Minister.
MR TILMOUTH: That is so, if I could deal with that when I come to the migration matter if I may, if the Court pleases. Could I point out, however, before just dealing, if I may briefly, with the history of this whole part, jurisdiction is also conferred under 69M of the Act, and this is also partly in answer to the question by your Honour Justice Gummow about what is the law. That section confers jurisdiction:
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.
That supports the argument, in our submission, that Mr Bennett’s argument unduly limits the Subdivision F situation as controlling the whole Part VII itself.
GUMMOW J: No, 69M takes you back, amongst other places, to 31(1).
MR TILMOUTH: Yes, 31(1)(d) ‑ ‑ ‑
GUMMOW J: And 69H.
MR TILMOUTH: Exactly, they are the three main jurisdiction provisions but the point I am making, if the Court pleases, is to focus upon, at the moment, the additional jurisdiction which is referred to in express terms in 69M.
GUMMOW J: Yes, but what do you get out of it?
MR TILMOUTH: That the jurisdiction which comes under Subdivision F is really an additional jurisdiction referred by the States in the subject matter of exnuptial children, except for welfare powers, which has noting to do with the jurisdiction already vested in earlier sections of the Act in relation to welfare in general. If the Court pleases, can I deal with that in this way, if I may briefly ‑ ‑ ‑
GUMMOW J: Wait a minute, 69M is in Subdivision C which is headed “Jurisdiction of courts”, is it not?
MR TILMOUTH: Yes, it is.
GUMMOW J: Well, to make clear that it is not the only source of jurisdiction ‑ ‑ ‑
MR TILMOUTH: No.
GUMMOW J: ‑ ‑ ‑ you have 69M.
MR TILMOUTH: Yes, I agree with that.
GUMMOW J: To make you comfortable with 31(1).
MR TILMOUTH: Yes, you have 31(1) ‑ ‑ ‑
GUMMOW J: Do they have matrimonial cause as well?
MR TILMOUTH: Yes, but the primary jurisdiction provisions are 31(1)(d), 69H and 69M.
GUMMOW J: You might have litigation under the child support legislation, all sorts of things are possible.
MR TILMOUTH: That is true, but, in my submission, that is another matter. Can I deal with it this way if I may, if the Court pleases. The history of this legislation is that these provisions as they now stand, although in different sections and ordered differently, were basically introduced in 1987.
KIRBY J: In 1987 were they?
MR TILMOUTH: Yes, they go back to 1987 and they did not come out of the blue, they were associated with the referral of the powers by the five States and that is the first context in which these sections must be considered. The States at that time were referring jurisdiction essentially with respect to exnuptial children, including the South Australian 1986 Act which Mr Bennett has taken the Court to, but not including, with respect to exnuptial children, general welfare jurisdiction with guardianship, maintenance, custody, and the like.
It was those 1987 provisions which were construed in Marion’s Case and P v P to be very wide, and Mr Bennett has also taken your Honours to some of the passages in Marion’s Case, but the essence of the submission to this point is that this Court held that those provisions conferred on the Family Court a jurisdiction which was statutory rather than common law jurisdiction, as in Arif’s Case in England and the other case which was referred to by the Solicitor‑General, as similar to or the substance of the parens patriae jurisdiction.
It was in that context, as read by this Court in Marion and P v P, that the 1995 Reform Act came into being. Although in substance it was the same it was structured differently, it is clear, in my submission, putting apart UNCROC considerations for the moment, that Parliament was affirming a parens patriae jurisdiction in the Family Court as construed in this Court by those two cases.
Now, if the Court pleases, the Court in those two cases, and as subsequently affirmed in GPAO, which was a decision on the 1995 amendments, although the facts were quite different, has held that the jurisdiction is one that is very wide – the welfare jurisdiction. It was not necessarily confined to supervisory jurisdiction as it originally appeared to be in the 19th century. It was a jurisdiction which was invoked with respect to children who could not look after themselves, in effect, and that the guiding principle was the welfare of the child was the first and paramount consideration.
Now, this Court said that in the first two of those cases before the 1995 Reform Act and it described it in GPAO as a rule of substantive law, and without reading case, it is at 583 to 584 where that appears, which is case 3 on our list.
GUMMOW J: Now, you want to construe this legislation as if it said the Family Court has the parens patriae jurisdiction as understood at common law from time to time.
MR TILMOUTH: I would work it this way ‑ ‑ ‑
GUMMOW J: So that, as it has developed in England, for example, the statute expands here. That runs into the problem of the Native Title Case, does it not, section 12 of the Native Title Act which was struck down in the Native Title Case?
MR TILMOUTH: The Western Australian case, I think, your Honour.
GUMMOW J: Yes.
MR TILMOUTH: Yes, but, as this Court said in the later cases, that native title must not be construed in accordance with Mabo and the first port of call, of course, is the Act itself.
KIRBY J: That is right. That is what I am puzzled about. Why are you trailing this irrelevant caravan across the face of the statute book? We construe the statute. We first see if it is valid and, if it is valid, we construe it.
MR TILMOUTH: Can I answer your Honour Justice Gummow first? The proposition I would put, if the Court pleases, is that it is not so much the parens patriae jurisdiction of the old Courts of Chancery and so on; it was the parens patriae jurisdiction as construed by this Court in Marion’s Case and, if the Court pleases, in the ‑ ‑ ‑
KIRBY J: Why do you want to read down “relating to the welfare of children”?
MR TILMOUTH: We do not, if the Court pleases. In fact, we wish to read it up. The reason I make this submission, if the Court pleases, is that in the explanatory memoranda to the Reform Act, which is tab 14 of the Amnesty materials, in paragraph 319 of that memoranda – my copy is at page 73, may it please your Honours – it was expressly said that:
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.
GUMMOW J: Yes, but the trouble with that is, it was explained in Marion’s Case as connected to the marriage power.
MR TILMOUTH: Yes, but said in GPAO, as I have said, to be a rule of substantive law. The significance of that was that, first of all, through this Court and then in the Reform Act, it was the paramount principle in relation to the best interests of the children which became prominent. Now, if the Court pleases, when it came ‑ ‑ ‑
GUMMOW J: Now, the paramountcy principle is in 67ZC. Is there not, from time to time in the Family Court, some trouble in connecting 67ZC with, I think, 68B?
MR TILMOUTH: Yes, it is 68B, if the Court pleases.
GUMMOW J: Yes. They are not quite consonant, are they - 60, rather, 60B.
MR TILMOUTH: Yes. In 60, those objects and principles are, in our submission, capable of reference to UNCROC, but I will come back to that. In relation to best interests, if the Court pleases ‑ ‑ ‑
GUMMOW J: They are not just talking about best interests, though, are they?
MR TILMOUTH: No, but at 68E and 68F, which give particular emphasis to best interests, quite apart from the express reference in 67ZC ‑ 68E and F are in Division 10 of Part VII, and it is headed “The best interests of children and the representation of children” and 68F, if the Court pleases, spells out a number of criteria or factors which the court must consider, in considering best interests of the children as “the paramount consideration”. That is a paraphrase from 68E(1). I do not read 68F, particularly subsection (2), but the Court can see that 68F mandates a variety of factors which must be considered at the best interests stage ‑ which is the last stage before making an order – a number of enumerated matters, which are very wide.
GLEESON CJ: Mr Tilmouth, putting to one side divorce and matrimonial causes and just concentrating on marriage at the moment, giving section 67ZC the width that you attribute to it, what is its connection with marriage?
MR TILMOUTH: It has to be read as relating to children of the marriage.
GLEESON CJ: Children of “a” marriage?
MR TILMOUTH: Children of a marriage, I beg your pardon, yes, which, of course, is the case here. There is no dispute about that.
GLEESON CJ: I understand that.
MR TILMOUTH: In our submission, that is enough.
GLEESON CJ: So as long as one is a child, and so long as one is a child of a marriage, then the power of the Family Court extends to making any orders appropriate for one’s welfare.
MR TILMOUTH: Yes, provided the child is within the jurisdiction at the relevant time.
GUMMOW J: And even though the aspect of welfare does not spring out of, as it were, the relationship between the parent and child, or adoptive parent and child? It is not familiar ‑ ‑ ‑
MR TILMOUTH: Well, it can be. It overlaps, at least, to a ‑ ‑ ‑
GUMMOW J: It need not be, I think.
MR TILMOUTH: No, it may not be, I accept, but can often be.
GUMMOW J: You would say it is still a law with respect to marriage ‑ ‑ ‑
MR TILMOUTH: Yes, we do.
GUMMOW J: ‑ ‑ ‑ because it is in respect of a child of a marriage.
MR TILMOUTH: Yes. Provided that and provided the jurisdiction requirements are satisfied ‑ ‑ ‑
GUMMOW J: I think you are lucky Sir Daryl Dawson is not still here.
MR TILMOUTH: Yes. Well, in our submission, with respect, he was, could I say, out on a limb ‑ ‑ ‑
GUMMOW J: I do not know about that.
MR TILMOUTH: ‑ ‑ ‑ in that respect, if the Court pleases. So that is basically the submission ‑ ‑ ‑
GLEESON CJ: Just explain, why is a law with respect to a child born of a marriage necessarily a law with respect to marriage?
MR TILMOUTH: It may not be, if the Court pleases, in individual factual situations, but all that is required to invoke the jurisdiction in this matter is simply the children of the marriage, and it can be seen to have a sufficient connection with the marriage power – which, in our submission, it does – by reason of them being the children.
GUMMOW J: Now, to make that submission good – I am sorry to keep interrupting you – do we have to review some of the 1980s cases on the marriage power?
MR TILMOUTH: Yes. Well ‑ ‑ ‑
GUMMOW J: And, if so, we had better know about them, because I think there is a lot of law in there.
MR TILMOUTH: Could I come back to those if I may as well in relation to particularly the Migration Act. As the situation currently stands – and Marion’s Case was an example - the sterilisation was held to have a sufficient connection with the marriage power. In this case the children cannot make a decision for themselves about place of residence in the migration context. The parent cannot make it for them. That is all that was necessary, putting aside the statute itself, to trigger the parens patriae jurisdiction because they are helpless in the situation of immigration detention.
KIRBY J: But the discrimen for the concerns affecting the children in this case is not really the marriage of their parents; it is their detention. So it seems to be a little remote from the marriage. The marriage is not in dispute, the marriage is not the source of the matter that is the dispute, namely, the prolonged detention of the children. The marriage is an irrelevant consideration.
MR TILMOUTH: If the Court pleases, why is there any – if I could put it this way. There is no material distinction between ‑ ‑ ‑
KIRBY J: You are entitled to throw Marion in our face and say, “There’s Marion. How can you distinguish Marion?” You are entitled to do that. Mr Solicitor has said that is because Marion was dealing with a very, very serious matter, namely, sterilisation, but it is not really a distinction of kind, it does not seem to me.
MR TILMOUTH: Our point of course is there is no material distinction with Marion. The point about Marion is it is not to be characterised essentially as just a sterilisation case, which is sui generis, I think my friend put it as. The essential feature of Marion’s Case – perhaps there were two features. One was there was the need to make orders for which the parents could not. Their consent could not cure the problem, and that is the situation here. The other feature of Marion’s Case was the need for some kind of medical or some similar related intervention. That feature exists here in the sense that there has been an interlocutory finding that the children are at risk.
KIRBY J: Is the material concerning the causes of the risk to the children in the appeal book or not?
MR TILMOUTH: Partly, your Honour, there is.
GUMMOW J: Wait a minute, Mr Tilmouth. Does the presence of the risk become a constitutional fact?
MR TILMOUTH: It could do. There has certainly been a finding.
GUMMOW J: No, but is it a necessary constitutional fact in order to enliven the power and support the Act?
MR TILMOUTH: It is certainly necessary to enliven the power under the Act of course. May I think about that matter?
GUMMOW J: Yes.
MR TILMOUTH: The answer is possibly yes. In answer to your Honour Justice Kirby, in the appeal book there is a little reference to some of the evidence at 177 to 178. It is only a brief passing reference but it contains a little of the evidence which was given in the Family Court on the interlocutory proceedings. In our written submissions, in footnote 4 there is the judgment of the Full Court of the Family Court in this case [2003] FamCA 621. Your Honours have not been given a copy of that, but that was a recent decision of the Full Court of the Family Court which ordered the release of the five children.
KIRBY J: I think that is referred to in your written submission.
MR TILMOUTH: Yes, it is.
KIRBY J: It was a court differently constituted and it was unanimous on this point.
MR TILMOUTH: Yes, it was.
KIRBY J: Should we not have that?
MR TILMOUTH: Yes, we can arrange to get copies of that. It is sufficient, in my submission, to mention that the court ordered release on an interlocutory basis on the footing that the children were at risk, relying on findings of the primary judge, the single judge of the Family Court at the interlocutory hearing, coupled with prima facie illegality or a serious triable issue on the question of illegality. Of course it made no final findings, but there was an inference of illegality from the sheer amount of time that the children had been in detention.
KIRBY J: Well they would have started, presumably, from the Full Court decision in this case, which is now before us.
MR TILMOUTH: Quite.
KIRBY J: So that would have been the premise on which they built everything that followed.
MR TILMOUTH: Yes, but, in our submission, that decision did not stand or fall on illegalities under the Migration Act as such. It was a factor that the court considered on a prima facie basis, but it also rested on the fact that there was evidence and a finding of the single judge at an interlocutory basis that the children were at risk. Can I give the Court the paragraphs which we submit are relevant in that decision? We will get copies of this case for the Court.
KIRBY J: This is the second Full Court decision?
MR TILMOUTH: In fact, it is the third Full Court decision, if the Court pleases. The first one was the simple jurisdiction issue. The second decision was the application by the Minister for the stay and the certificate under section 95. This is the third decision, which was an appeal from the refusal of a single judge to order interlocutory release. The relevant paragraphs are, if the Court pleases, at perhaps [130] to [132] in that judgment, comprising Justices Kay, Coleman and Collier.
CALLINAN J: Mr Tilmouth, can I take you back to the marriage power, which you were talking about before. What about section 51(xxii) of the Constitution? Nothing could be clearer, could it, that “custody and guardianship” have to be related to “divorce and matrimonial causes”?
MR TILMOUTH: In that placita, yes.
CALLINAN J: And you do not get anything further out of marriage itself.
MR TILMOUTH: You do not get very much out of ‑ ‑ ‑
CALLINAN J: This is a specific power and the only specific power in relation to children and it is in the context of “divorce and matrimonial causes”. Is that not right?
MR TILMOUTH: With respect, that is right literally, but, of course, the main justification in Marion’s Case, for example, was the marriage power.
GUMMOW J: No. You say, do you not, you do not read one power down by reference to another power?
MR TILMOUTH: No, they are independent and cumulative powers.
GUMMOW J: Russell v Russell decided that.
MR TILMOUTH: There is no doubt about that ‑ ‑ ‑
CALLINAN J: Well, how does marriage in (xxi) build upon or extend (xxii)?
MR TILMOUTH: Well, (xxii) is not one that we primarily rely upon, but it is clear, in our submission, that marriage is something quite different than causes relating to divorce and consequential orders of the kind ‑ ‑ ‑
CALLINAN J: What is the reference to Russell’s Case? Have you got that?
MR TILMOUTH: Not offhand, if the Court pleases, but I can get that.
GLEESON CJ: Well, a law with respect to marriage is a law that says that if you get married you have to enter it on a public register. That is a law with respect to marriage.
MR TILMOUTH: Quite, but so is a law with respect to the obligations of parents to children of marriage, and so on.
GUMMOW J: The final case, I think, in the series on the marriage power is F v F (1986) 161 CLR 376, which is on the list. We are going to have to know if we are being asked to revisit some of these cases, ending in that case.
MR TILMOUTH: May I come back to those cases, if it is convenient to the Court, after lunch?
GUMMOW J: Also between the parties to the marriage and the stranger, you see.
MR TILMOUTH: Yes. Once again, Marion’s Case is ‑ ‑ ‑
GUMMOW J: The solicitor’s client is a stranger.
MR TILMOUTH: Yes, but once again so is the doctor in Marion’s Case and so on.
GUMMOW J: Yes.
HAYNE J: That was apropos of Marion’s Case. In the joint judgment at page 261 their Honours conclude:
the sterilization of a child arises from the custody or guardianship of a child.
They say earlier:
a question of sterilization of a child of a marriage arises out of the marriage relationship and that the sterilization of a child arises from the custody or guardianship of a child.
MR TILMOUTH: Yes.
HAYNE J: In what sense do the orders which were sought here bear that connection with marriage?
MR TILMOUTH: They bear that connection through the parental responsibilities to the parties of the marriage.
HAYNE J: But the hypothesis for consideration is that the parents are deprived of capacity to determine where the child will live, the child is in detention.
MR TILMOUTH: Your Honour, putting aside the Migration Act question for the moment, that is precisely the point we make. These children are incapable of making decisions for themselves ‑ ‑ ‑
HAYNE J: So too are the parents.
MR TILMOUTH: Exactly, and that is our whole point in relation to this. That is the very jurisdiction which courts have exercised for centuries which has been vested in the Family Court because the children are otherwise helpless in this situation, even though there is a finding that the children are at risk and even though it may be that they could be detained indefinitely or, indeed, forever. That is why we submit partly that the jurisdiction is enlivened because it is the very circumstances in which the courts have for centuries acted when the children themselves, and sometimes the State is powerless to act.
KIRBY J: You will make the relevant parts of the third Full Court decision available to us?
MR TILMOUTH: Yes we will, if the Court pleases. Your Honours, can I return if I may to the question of the scope of Part VII because there are some provisions which I wish to take the Court to which have not so far been dealt with. Could I deal with section 69H(1). It has been mentioned in passing but it does give jurisdiction to the Family Court in relation to matters arising under this Part which is part VII which is the welfare jurisdiction.
Now, the key word, in our submission, is that this jurisdiction is a different jurisdiction that is being referred to in Division 12 later on, relied upon by the Solicitor. This is the welfare jurisdiction which is separately vested and has nothing to do with subsection F of Division 12. That jurisdiction, if the Court pleases, is the jurisdiction quite apart from sections 31 and 69M appearing in Divisions 3 to 8 inclusive in Part VII and which deal essentially with counselling, parenting orders, maintenance, liability of the father and location and recovery orders in relation to children who have been abducted. Now, if the Court pleases ‑ ‑ ‑
GLEESON CJ: Just before you go any further, Mr Tilmouth, I want to understand better a submission you made about the relationship of section 69ZH and 67ZC. I may have misunderstood you, but I thought you said that 67ZC, to pick up an expression from another provision, takes effect according to its tenor in relation to the children of a marriage.
MR TILMOUTH: Yes.
GLEESON CJ: And 67ZH extends the provisions to exnuptial children.
MR TILMOUTH: Where there has been a reference by the State.
GLEESON CJ: But 67ZH(3) specifically relates the provisions referred to in subsection (2), which includes 67ZC, to the problem which we have just been discussing, does it not?
MR TILMOUTH: Yes, it does.
GLEESON CJ: It relates it to the marriage power by limiting its effect to a provision in respect of the parental responsibility of the parties to a marriage.
MR TILMOUTH: With respect, no. If the Court goes to the bottom of the opening words of subsection (3), it talks about “including (but not limited to)”. If the Court pleases, what is of relevance as well ‑ ‑ ‑
GLEESON CJ: No, just before you go any further. It says they:
only have effect . . . so far as they make provision with respect to the parental responsibility of the parties to a marriage for a child of the marriage ‑
then it says “including”, but the primary words of limitation, which are not extended by the word “including”, are making “provision with respect to the parental responsibility of the parties to a marriage”. That is what links 67ZC to the marriage power, is it not?
MR TILMOUTH: The short answer is yes, but it is not as simple as that, if the Court pleases. Apart from what I have just already put about “not limited to”, the Court can see that the heading itself to ZH is “Additional Application of Part” and then it comes to subsection (3), the words that your Honour the Chief Justice has already read, but in subsection (a), in our submission, dealing with those powers and responsibilities including maintenance and “residence . . . care, welfare and development of the child”, as I have already put, are essentially a saving provision to ensure that the other parts of the Act, particularly 67ZC, is read within constitutional limits but no more. I realise that is a little clumsy.
Can I go back, your Honours, one page in this statute to 67ZE and remind the Court once again that all of this came in in 1987 at the same time the States were referring some powers with regard to exnuptial children. That is an important context. Now, the earlier parts of the Act deal with the general jurisdiction – welfare jurisdiction in Part VII of the Family Court.
GUMMOW J: However, the State reference is not limited to what used to be called illegitimate children.
MR TILMOUTH: No, the State reference basically relates to children without any further definition, so it is children under 18, or persons under 18, to use the word of the Act, which picks up of course exnuptial children. That is the main area of work it has to do. But, your Honours, 69ZE, against which ZH must be considered, in our submission basically relates to the situation not of the earlier already conferred general welfare or parens patriae jurisdiction, it relates solely to any additional jurisdiction which is vested in the Family Court by reason of referral by any of the States, and it occurred in the context where there were some States wanting to participate and some not, as your Honour Justice Gummow pointed out. That is made clear, in our submission ‑ ‑ ‑
GUMMOW J: What was the date of the last State to come in and refer?
MR TILMOUTH: I do not know offhand, if the Court pleases. The South Australian Act was ‑ ‑ ‑
GUMMOW J: Queensland was quite late, was it not?
MR TILMOUTH: I think so, I do not know the precise history but clearly Western Australia was a problem because there was a separate provision for Western Australia in subsection (2). But, your Honours, once again the heading is important. The heading reads “Extension, application and additional operation of Part”. It does not read ‑ ‑ ‑
GUMMOW J: Yes, it is the second word you see, “application”.
MR TILMOUTH: Yes, which has other connotations but the point about it, in our submission, is that under subsection (1) “Subject to this section and section 69ZF, this Part extends to” the named States. As your Honour the Chief Justice points out, that word must be a reference to the referral power under section 51. It is the only point of reference it can possibly have.
Therefore the prime work which this section has to do, ZE, is in relation to an additional extended jurisdiction apart from and independently of the general welfare jurisdiction already vested in Part VII and 67ZC in particular and, in our submission, the word “extends” is used for that very reason. It does not use, as the heading does, “application”, or the words “applies to”. It does not use words of limitation saying the earlier parts of Part VII have to be read down and within Subdivision F, which is the learned Solicitor’s argument. On the contrary, it uses the words of “Extension, application and additional operation”.
So that, in our submission, the trigger, therefore, in subsections (2), (3) and (4) and therefore the limit of the jurisdiction to which it refers and purports to limit, is the question of referral. The word “refer”, in our submission, is the trigger in each of those parts to the extension or additional application of that part. So the whole section is only talking about the contingency of referral of additional jurisdiction without in any way limiting jurisdiction already conferred.
Now, when one then goes back to 69ZH – and a further answer to the question your Honour the Chief Justice put to me – ZH has to be read in that context. It is read in the context that the Family Law Act already confers welfare jurisdiction. It is then read in the context that the States may seek to refer additional jurisdiction, so that when we come to 69ZH, and acknowledging that in subsection (2) it picks up 67ZC and 68B, amongst others, in our submission, it is only referring to those parts insofar as subsection (3) speaks, in effect, of a referral in relation to the matters to which the subsections (a)(i) and (ii) and (b)(i), (ii) and (iii) refer.
In other words, that section (2) is limiting and only limiting any referred jurisdiction, and it appears in Subdivision F, which is a small subdivision, precisely, in our submission, for that reason, and it cannot be read, in our submission, as, in effect, controlling and limiting at the end, in the context of State referrals, the whole general jurisdiction which the earlier sections of the Act in Part VII so elaborately spell out and emphasise in a number of sections and subsections the paramountcy of the best interests of the children.
If that be right, in our submission, then the conclusion of the Full Court below that the way to read this part was to limit its operation to the question of referrals by designated States, particularly in relation to exnuptial children, was correct.
GLEESON CJ: Mr Tilmouth, if you are right, the majority in this Court went to a great deal of unnecessary trouble in Marion’s Case to explain their decision, did they not? Have a look at page 261 of 175 CLR, which is a paragraph that, as I read the judgment, follows quite a long process of reasoning. Do you see a paragraph beginning “It is clear enough” towards the foot of the page?
MR TILMOUTH: Yes, I do, if the Court pleases.
GLEESON CJ: Why was it necessary for them to go through that process at all? Why did they not just say, “The child was born of the marriage”?
MR TILMOUTH: Partly of course to explain why it came within the marriage power, quite apart from the circumstance of the child being a child of the marriage.
GUMMOW J: Justice Dawson was a party to this judgment.
MR TILMOUTH: Yes, he was, despite his earlier ‑ ‑ ‑
GUMMOW J: I think in fulfilment of it.
MR TILMOUTH: Yes. If the Court goes to page 251, at the top of that page there is the reference in the joint judgment at about the fourth line to:
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 power.
GUMMOW J: That way of looking at it though, it is the inability or incapacity of the parents that still makes it a law with respect to marriage because it is supplementing what was their deficiency. I do not see how that necessarily helps you.
MR TILMOUTH: That is our alternative argument, if the Court pleases. As already put, the parents in this case do not have the capacity themselves to influence any decision which is made on things like residence, parenting and the like. So, quite apart from the children being unable to do anything, so too are the parents. So there is that analogy with respect to Marion’s Case.
The other, if I can put it this way, constitutional fact, in my submission that was important in Marion’s Case – I just cannot find the passage, but it was a passage as well where the Court should intervene as an incidence of necessary medical treatment. It was not, as I put it earlier, just a question of sterilisation per se, it was a need to do something on medical or other proper grounds, coupled with the inability of the parents to give effect to it without an order of the Court. As I have already put, if the Court pleases, I have dealt with the parents’ side of it. The other jurisdictional fact which would be sufficient for the marriage power, independently of simply these being the children of the marriage, would be the finding that the children were at risk in this situation.
KIRBY J: I just have a difficulty in seeing how any amount of urgency can make it a law with respect to marriage. You can have bucketfuls of urgency but unless it is a law with respect to marriage, it does not enliven this constitutional power.
MR TILMOUTH: It is possibly not urgency as such ‑ ‑ ‑
KIRBY J: But there is nothing wrong with the marriage. The marriage of the parents in this case apparently is strong and enduring and there is no question that these are the children of the marriage, and therefore the marriage just seems an irrelevant consideration.
MR TILMOUTH: I will put that argument aside and found on the alternative argument of incapacity of the parents and the children needing some kind of intervention on the basis of risk.
GUMMOW J: Is there anything in P v P which explains Marion in a way that may assist you?
MR TILMOUTH: I do not think so, if the Court pleases, but perhaps the passage I had in mind at Marion was possibly at page 600, where at the bottom of the page – I beg your pardon, I am looking at P v P, I apologise.
GUMMOW J: P v P 181 CLR 599 to 600.
MR TILMOUTH: Yes, I am sorry, if the Court pleases, I thought I was handed another case.
GLEESON CJ: Would you like to come back to this case after lunch?
MR TILMOUTH: If the Court pleases.
McHUGH J: Mr Tilmouth, before we adjourn, at the moment I tend to think you are right in arguing that 67ZC does stand apart, but after lunch, would you let me know what view you want to put about section 60B qualifying that general power, that is to say, that:
The object of this Part is to ensure that children receive adequate and proper parenting to help them ‑
which seems to suggest that that wide power in 67ZC is there to give effect to the object specified in 60B.
MR TILMOUTH: If the Court pleases.
GLEESON CJ: We will adjourn until 2.15 pm.
AT 12.47 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.16 PM:
GLEESON CJ: Yes, Mr Tilmouth.
MR TILMOUTH: Your Honours, may I deal with the matter I was dealing with in answer to your Honour the Chief Justice and then come back to your Honour Justice McHugh’s question. Your Honours, I was dealing with a passage I could not find which I said was from Marion’s Case, but the best reference to it is in P v P (1984) 181 CLR 583. The passage I had in mind was at 597. It is in the second larger paragraph at 597. Your Honours will see about two-thirds of the way down there is a reference to Marion’s Case. It is two lines just above that:
A comparable but more precise (and more stringent) distinction was drawn by this Court in . . . (Marion’s Case) where the majority judgment . . . makes clear that the decision in that case, that the authorization of a medical procedure involving sterilization “falls outside the ordinary scope of parental powers and therefore outside the scope of the powers, rights and duties of a guardian under . . . the Family Law Act” is confined to sterilization which is not “a by‑product of surgery appropriately carried out to treat some malfunction or disease”.
Now, my reason for referring to that – as your Honours can see, it goes back to Marion’s Case – is on this question of the head of power. The first point which is already made is under the marriage power one of the aspects attracting the power would be the fact that the parents cannot make a decision. The analogy there is Marion’s Case. I have made that point.
GUMMOW J: We had better look in P v P at the bottom of 599, the last sentence on 599 going over to 600, which again sets out the passage that the Chief Justice and I think Justice Hayne referred you to this morning.
MR TILMOUTH: Yes, that is in relation to sterilisation being, as it were, having a sufficient connection, but my point is, may it please your Honours, is it is not the fact of sterilisation itself, it is the fact that sterilisation is something relating to parental responsibilities which the parents could not confer, number one. Secondly, it relates not to sterilisation simpliciter, but sterilisation which is an appropriate treatment in the circumstances of the case, as a second point.
Now, our submission is there is an analogy with Marion’s Case. One is the incapacity of the parents, but the second is that the evidence in this case is that the children are at risk and it needs to be remedied, and that is the analogy with the proper treatment, not so much for a malfunctional disease, but what we have here which, in our submission, enlivens the marriage power, is also the fact that these children are in a situation where they are at risk and they need treatment or appropriate movement out of detention.
HAYNE J: That will be so in many cases of confinement of a child, whether the confinement be for breach of the criminal law, or for other reasons. In fact, seldom will confinement, detention be the better course to adopt.
MR TILMOUTH: With respect, your Honour, the answer to that is ‑ subject of course to there being orders of courts which would preclude the Family Court from interfering – that the answer, in any event, would be that assuming jurisdiction, there still has to be evidence of risk which the applicant bears the onus of satisfying, and then they have to jump through the other hurdle of the best interests of the children with all its aspects under the Act.
HAYNE J: Yes, but before you get to that, Mr Tilmouth, does not P v P make it clear that the:
welfare arises out of, or is sufficiently connected with, the marriage relationship ‑ ‑ ‑
MR TILMOUTH: Yes.
HAYNE J: If you look at page 600, at point 5:
“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.
MR TILMOUTH: Yes. Now, if the Court pleases, I accept that, and I accept that I put it too widely before lunch, that the children simply being children of the marriage was enough, but what I submit is, as I have put to the Court already, that there are two attributes in this case which do make a sufficient connection with the marriage power, and that is the risk, together with the incapacity of the parents to do anything about that risk, both of which, in my submission, give the sufficient connection with the marriage power or enable the Court to say it arises out of the marriage power. The other point ‑ ‑ ‑
HAYNE J: Does it mean, that submission, that the Family Court could validly make an order requiring detention of a child at one youth training facility rather than another, when the child has been sentenced to imprisonment in such a centre?
MR TILMOUTH: I will deal with detention and then imprisonment. In the first case, detention, the answer is yes. Certainly, the Court could say on the evidence before the Court the child should not be in detention in this detention centre because it is too dangerous. An example might be where there is cogent evidence that the child is being abused. Forget about the mode of detention or the quality of detention, but the child is simply being abused by others in the detention centre, whether they be on the staff or detainees.
In the prison context, subject to any question of a valid law of a State applying, the answer is also yes. Presume that a child in imprisonment in a State system has been the subject of abuse in prison and assume that an action would be futile under State laws, then provided ‑ ‑ ‑
HAYNE J: Why should one make that assumption or how can one make that assumption? Would it not, in almost every case, be in breach of the obligation of the detaining authority?
MR TILMOUTH: That is why I made that exception, because of course State laws may well be available. There may be administrative remedies and so on, but if they failed or, indeed, separately a child could bring an application to the Family Court to make an application that, “This imprisonment in these circumstances is putting me at risk”, and then the court would have to balance the various considerations, including all the attributes of the best interests of the child.
McHUGH J: Do you go so far as to suggest that the Family Court could, on an application, order a grocer not to sell cigarettes to a child? Would that be a law with respect to marriage?
MR TILMOUTH: Perhaps it could be, your Honour. It depends on how bad the sale was perhaps. I need to think that one through, but it would have that capacity. Assume there was evidence that the child had become addicted to cigarettes, was habitually being supplied by the supplier and medical health was at risk, then the answer may well be yes. Your Honours, as just conceded, it would take more than just the relationship of being children of the marriage to sustain 67ZC under the marriage power. Our submissions about that are at paragraphs 24 to 26 of our written submissions, where we effectively put it on the footing that there must be parental responsibility involved over and above simply the proof of the fact that the children were children of the marriage and within the jurisdiction on the relevant day.
May I move then to the external affairs power and the aspect of UNCROC, the Convention on the Rights of the Children in relation to this matter. In our submission, which is set out from paragraphs 29 to 31 of our written submission, the question is not simply whether Parliament has expressly put into the legislation a reference to the Convention. It is not anywhere near as simple as that, in our submission. The submission is in the end result based upon the Industrial Relations Case, that it is sufficient to enliven the external affairs power following ratification of UNCROC if the Court is able to say that the 1995 Reform Act fulfils, carries out or gives effect to UNCROC in a relevant way to engage the external affairs power.
Your Honours, in the explanatory memoranda which accompanied this Reform Act, which is in tab 14 of Amnesty’s materials, on page 2 of those materials – do your Honours have page 2 of those materials, paragraph 4 ‑ your Honours will see that it was stated that:
The Bill will insert an objects clause into Part VII of the Family Law Act which will provide that children should 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. The Bill makes it clear that this object is based on principles which are consistent with the United Nations Convention on the Rights of the Child.
Then some of those principles are set out.
KIRBY J: How do you deal with the fact that originally the Bill specifically referred to that Convention and then was amended?
MR TILMOUTH: The way we deal with it, your Honour, is to say that there are a number of comparable phrases in UNCROC in the 1995 Law Reform Act which have sufficient reference, one to the other, to show that what in effect Parliament is doing is incorporating or giving effect to UNCROC itself. The classic example of course is the change from the welfare of the children being the prime interest to the best interests of the children being the paramount interest in section 67ZC and so on.
McHUGH J: Mr Tilmouth, there may be a distinction between the external affairs powers and other powers of the Commonwealth. Ever since Ex parte Walsh & Johnson the rule has been that if Parliament enacts a law it is not a question of what power it intended to exercise but what power it had to support the legislation.
MR TILMOUTH: Yes.
McHUGH J: But it may be that the external affairs power is in a slightly different category because to be a law with respect to the external affair one must be able to say objectively that the law has been enacted for the purpose of carrying out the terms of the Convention. So that it is not sufficient that in the background there arguably is the power and the external affairs power but maybe you have to show that the law was objectively enacted for the purpose of carrying out the terms of a treaty. Do you have any submission about that?
MR TILMOUTH: Yes, we do, if the Court pleases. The submission is that when you look at the Reform Act and the terms it uses and show that there is a connection with UNCROC in phraseology or concepts, that it is tolerably clear, in our submission, that what the Reform Act was doing, by the repeal of the old Part VII and putting these in again, was to give effect to UNCROC within the legislation.
McHUGH J: I just thought that what you took us to tended to be against you on that point, because it did not say, “The Bill makes it clear that we are giving effect to the United Nations Convention”. It says the object “is based on principles which are consistent with the United Nations Convention”.
MR TILMOUTH: Yes, quite, and that is Mr Bennett’s point of course. Now, our submission is of course it would be stronger if we had a Khawaja‑type situation here where there was an express incorporation of domestic law in the statute itself. We would be stronger as well if we had a Tasmanian Dam situation where there was reference in the statute to the relevant Convention, as there was in that case. But neither of those various way of incorporating a statute into domestic law are necessary to enliven the external affairs power. What has to be clear, in our submission, is that in the end result an Act is giving effect to a treaty to enliven the external affairs power.
HAYNE J: And to which particular provisions of the Convention do you say the legislation gives effect?
MR TILMOUTH: A number of them, your Honours. Now, to save time we have actually prepared a schedule, which I think your Honours have ‑ ‑ ‑
GLEESON CJ: Where is the most convenient place for us to look at the Convention?
MR TILMOUTH: Articles 3, 4, 6, 9, 11, 18, 19, 20, 27. Now, your Honours, what we have done in the schedule is simply to – in the bold passages on the left‑hand side from UNCROC, is to isolate phraseology or concepts which, in our submission, have an analogy or some reference in the Family Law Act, and to isolate those provisions.
GLEESON CJ: Is there a difference between “a primary consideration” and “the paramount consideration”?
MR TILMOUTH: Yes, if the Court pleases, in our submission, because a primary consideration may have enabled in some cases the best interests of the children to be subjugated to some other factor.
GLEESON CJ: The Convention refers to the best interests of the child being a primary consideration?
MR TILMOUTH: Yes.
GLEESON CJ: The legislation refers to the best interests being the paramount consideration?
MR TILMOUTH: Indeed, but it is stronger, and the greater, in our submission, would include the lesser, and, of course, the reason which drove the language in 67ZC was, as I read this morning from the explanatory memoranda, to pick up what the court said about the parens patriae jurisdiction in Marion’s Case. The court used repeatedly in Marion’s Case, the phrase “the best interests of the children”, and in that sense, it pre‑empted UNCROC. But, if the Court pleases, I do not intend to go through this schedule, but my answer to your Honour Justice McHugh, in particular, and Justice Hayne, would be that one can see in going through the various articles in UNCROC, references in the Act which clearly have a genesis or a comparative basis to align them with various parts of UNCROC itself.
McHUGH J: Is that sufficient, because one, first of all, has to identify the external affair, and the external affair is the act of the Executive Government in entering into the covenant and then, according to the jurisprudence of this Court, the Parliament can give effect to that external affair by enacting legislation which gives effect to the treaty, but you have to be able to say that this Act was based on that external affair. Is it sufficient just to say here is an identity of terms in the Convention, an identity of terms in the legislation, therefore, it is a law with respect to an external affair?
MR TILMOUTH: It is a matter of degree, if the Court pleases. For example, to take the example that your Honour the Chief Justice gave a moment ago, if some of the phrases in the left‑hand side – just use page 1, for example – had found themselves directly, word for word in the 1995 Reform Act, it would be easier for the Court to infer that what Parliament had intended was to give effect to UNCROC. Now, what we have here is in some cases the use of direct words, but mostly the use of analogous concepts rather than direct words taken from UNCROC itself.
What our submission is in the end result, is looking at it as a whole, there is sufficient in the body of the 1995 amendments to have a definite tangible and concrete relationship to UNCROC for the Court to be able to say that the two are not unrelated, that the two in fact are clearly related because what the 1995 Act does is pick up the concepts and the essential attributes of UNCROC itself. All it has chosen to do for domestic law is use some different words but which, in effect, have the same concepts lying behind them.
In our submission, as I have said, it is really a matter of degree, but it is sufficiently clear, in our submission, because of analogues with the main provisions of the 1995 Act with UNCROC to say that what Parliament is in substance doing – even though it has not done it expressly – is to give effect to UNCROC.
HAYNE J: In connection with 67ZC, chief reliance seems to be placed on Articles 19 and 20. Is that right? You mention also Article 3 in connection with the paramountcy principle, but 19 and 20?
MR TILMOUTH: Yes. The best interest ‑ ‑ ‑
HAYNE J: In what respect do you say 67ZC gives effect to the obligations undertaken in Articles 19 and 20?
MR TILMOUTH: In the sense, your Honour, that although 67ZC is what we would for domestic purposes call welfare jurisdiction, the substance of Articles 19 and 20, when it talks about protecting children from forms of abuse, whether it be mental or physical, and talks about effective procedures to deal with it and procedures for prevention and procedures for judicial involvement in Article 19 and the importance of the family environment in Article 20, all find rolled up together a very substantial connection with section 67ZC, because that is what it does. It gives jurisdiction to the court in the very areas mentioned generically in Articles 19 and 20.
As I put it, your Honours, the fact that exact words might not have been transposed from UNCROC does not deny the fact that the substance of what has been transformed into domestic law is the core principles of UNCROC itself. Your Honours, on that best interest issue – and this is in answer I trust to your Honour ‑ ‑ ‑
HAYNE J: Just before you come to that, can I just stay a moment on 19 and 20. It seems to me that a way of looking at the argument you have just put is to say that the power given by 67ZC to do anything that is best for the child gives effect to obligations undertaken in the treaty with respect to particular aspects of child welfare and the argument seems to be that the very generality of 67ZC is reason enough to conclude it is a giving effect to specific obligations. Is that enough?
MR TILMOUTH: It could be, if the Court pleases, but more than that there is also of course section 68F, which talks about how the court determines the best interests of the children. In our submission, that also has its analogue with Article 12 of UNCROC – this is page 4 of the document, where 68F starts about halfway down and goes over to the bulk of page 5. So, when one spells out in more detail what “best interests” means from ZC to 68F, one can see a lot of parallels between the various articles of UNCROC and various provisions of the Act.
On that, your Honour Justice McHugh asked before lunch about 67ZC and its relationship to section 60B of the Family Law Act. I think, your Honours, the question might have been whether or not 60B has the effect of reading down the generality of ZC.
McHUGH J: No, not so much read it down, but as to whether you interpret it to give effect to the purpose in 60B. I have always been a great one for purposive construction.
MR TILMOUTH: Yes, our submission would be, your Honours, that section 60B, which is as it were a general ‑ it is clearly the object and principles, it is merely an outline. Section 60B in no sense tends to be exhaustive or to confine 67ZC at all, in our submission, albeit that it is a part of the object of the whole Part VII itself. Our submission would be if one wants to use 60B for purposive purposes one also has to bear in mind the precise submission I made just a moment ago, that one cannot read them in the context of best interests without going back again to 68F.
As your Honours Justice McHugh and Justice Callinan, I think, in the joint judgment in GPAO pointed out, there are a number provisions in this part, quite apart from those I have just mentioned, which also talk bout the best interests of the children. It is the one dominant principle throughout this whole part of the Act.
There is just one final point if I can, although it is a small point in relation to the external affairs power. It is simply to point out for what it is worth that in the Act itself in section 69E – this is page 155 of the brown book, if that is what the Court has – 69E(1)(e) under “Child or parent to be present in Australia”, this is the jurisdiction issue that there has to be both, in our submission, a child of the marriage and within the jurisdiction of Australia. I point out to the Court that under subsection (e) the proceedings may be instituted not only by the child but also under (e):
it would be in accordance with a treaty or arrangement in force between Australia and an overseas jurisdiction, or the common law rules of private international law, for the court to exercise jurisdiction in the proceedings.
Having said that, it probably does not take the matter much further and it probably enables the Court to entertain applications with respect to children outside the jurisdiction who have been abducted or stolen, for example. I do point out that is one reference in the Act expressly to any treaty consideration in express terms.
Your Honours, can I move then to the question of the influence of the Migration Act on the welfare jurisdiction of the Family Court. I accept, as Mr Bennett put it, the general issue is how these two Acts of the Federal Parliament are read together. We submit that the most notable feature above all in relation to the interrelationship of the jurisdiction of the Family Court over children of the marriage and the Migration Act is that neither Act talks about the relationship with the other. There is simply nothing in any Act dealing with it.
One might expect, for example, that if there was an intention to exclude the jurisdiction of the Family Court from the purview of the welfare jurisdiction, then Parliament would have said nothing in Part VII will enable the court to exercise jurisdiction over children who are illegal non‑citizens or something of that kind. So, in our submission, the starting point is that neither Act has said anything at all that helps the court about how one Act is to relate to the other.
The next point is that there is consistent principle in this Court in a number of cases and particularly Neyens’ Case, Carseldine and Johnson, which were relied upon by the Full Court to express the general principle that unless there was a clear intent expressed in the clearest of words excluding the effect of – I will not say the Migration Act so much but excluding the operation of the welfare jurisdiction with respect to children who also happen to be illegal non‑citizens, there is simply nothing at all either about that. If Parliament had intended to exclude the jurisdiction of the court in that respect, those words would need to be identified and read in that way.
Those three cases, your Honours, are dealt with extensively by the Full Court below at paragraphs 131 to 134 of the appeal book, so I say no more about them, but they do support the proposition that unambiguous language is required to exclude the parens patriae jurisdiction of a court. However, I do wish to read if I may from page 132 of the appeal book for a slightly different purpose from a reference to Carseldine v Director of Children’s Services. This is from the judgment of Justice Mason, as he then was, in that case.
What his Honour did say – and this is at line 19 of page 132:
“….it may be possible to say that the inherent jurisdiction is not wholly ousted and that it remains available to be exercised, not in competition with the care and protection which is vested in the Director by the Act, but in aid of his statutory responsibilities, and if need be, when the Director is not performing his duties and exercising his powers in accordance with the Act.”
Now, although that relates to a State Act, nevertheless, looking at a situation as we have here with two separate pieces of Commonwealth legislation, in our submission, what Justice Mason said there can be applied equally to the current situation and namely deal with the statutory responsibilities of the Minister, which are not being performed in exercising functions under the Migration Act in an appropriate case. What his Honour went on to say in the next quotation at paragraph 143 line 30:
“I make no comment on the facts of the present case otherwise than to say that if the evidence remained in its present state the Supreme Court would be amply justified in exercising the jurisdiction which in my view it possesses, for the conclusion would be irresistible that the Director has failed to apply himself to the welfare of the children.”
KIRBY J: What is the relevance of this? This is addressed to a State Supreme Court which traditionally has been regarded as having an inherent jurisdiction, whereas we are here concerned with the Federal Court, the Family Court of Australia which, as I understand the principles, has no inherent jurisdiction but can have implied as well as the granted jurisdiction. So what is the relevance of it?
MR TILMOUTH: The relevance is, your Honours, that Carseldine, although dealing with State responsibilities, is dealing with two Acts – or obligations under two Acts – of the State Parliament. My point is we are here dealing with two Acts of the Commonwealth Parliament which, on one view, and on the Minister’s view, have conflicting operation, and to the extent that the Migration Act excludes jurisdiction of the Family Court in these circumstances. My submission is that under the Family Law Act, it would be proper, because what has been talked about in Carseldine is essentially parens patriae jurisdiction which was given to the Family Court in 1987, for that court within that jurisdiction to consider the responsibilities of the Minister – read “Director” for “Minister” – in an appropriate case.
Now, what that means, in our submission, is that providing there is the appropriate evidence about risk and putting aside questions of directions directly to the Minister, what the Court could do is to, in an appropriate case, say the detention in this detention centre is not in the best interests of the child, making an order that the child be removed from that detention centre.
KIRBY J: That would be true of every child, would not it? I cannot think of any child who is going to be benefited by being in a detention centre?
MR TILMOUTH: No, but if the Court pleases, the Court still has to balance all of the factors and one of those factors would be whether or not the Minister had detained the child for a small or long length of time.
GLEESON CJ: You are not suggesting, are you, that unlawful detention is a balancing factor?
MR TILMOUTH: No, what I am suggesting, if the Court pleases, is ‑ ‑ ‑
GLEESON CJ: If people are unlawfully detained, they have a right to be free?
MR TILMOUTH: Yes, quite.
GLEESON CJ: Not a right to be free provided somebody thinks it is in their best interests to be free?
MR TILMOUTH: Except that, of course, the Family Law Act maintains that the jurisdiction has to be exercised through the medium of best interests of the child.
GLEESON CJ: That is the curiosity of bringing what is, in effect, an application for habeas corpus in the Family Court so that a person who is said to be unlawfully detained becomes the subject of a balancing exercise.
MR TILMOUTH: Your Honour, what I am putting to the Court is that the Family Court does not necessarily exercise a strict habeas corpus jurisdiction ‑ ‑ ‑
GLEESON CJ: It certainly does not if it starts weighing people’s best interests.
McHUGH J: The point is that you have put a lot of lead in your saddlebags which were not necessary. I mean, if your clients were unlawfully held, it is not a question of best interests or evidence, it is a question of legal right. They are entitled to be released forthwith by appropriate curial orders in the form of habeas corpus. What has the “best interest” jurisdiction of the Family Court to do with the matter?
MR TILMOUTH: On the pure question of illegality, very little, because there are other remedies, but in the circumstances of this case, if the Court pleases, you had a combination of the both. We had evidence of risk, and by the way we have given to your Honours the decision of the third Full Court where this is set out, and you have the fact of combined with prima facie illegality, at least on an interlocutory basis.
Now, if the Court pleases – and this is a further answer to the question your Honour the Chief Justice put to me – surely, the Family Court, if it is otherwise properly exercising jurisdiction, welfare jurisdiction – can not only look at the circumstances and say, yes, there is identifiable risk, but it can take into account, in our submission, whether or not there is an argument that the detention is unlawful.
GLEESON CJ: Take into account as a balancing factor? What does it balance against illegality of detention and what would outweigh illegality of detention?
MR TILMOUTH: It is very difficult to see that anything would, although the primary judge, on the interlocutory application, actually held that it was outweighed by other considerations.
GLEESON CJ: But under our system of law, a person who is being unlawfully detained has a right to be free, not an arguable case that on balance it is in that person’s interests to be let out?
MR TILMOUTH: Indeed.
HAYNE J: Much of the procedural law is directed to stripping away extraneous matters so that you may get on and try the issue of lawfulness of detention alone, and you are not embarrassed by making prima facie findings that it is arguable. You get on and try it, so that if somebody is unlawfully detained they are freed, then and there.
MR TILMOUTH: That is partly the problem in this case, your Honours ‑ ‑ ‑
McHUGH J: Of course, it is, and if you have a case, I mean, prima facie, it seems to be in the wrong jurisdiction. You are just imposing unnecessary burdens upon yourself. You are seeking to make out a case of best interest to be released when it is not a legal issue. If you are being unlawfully detained, then you have a right to be released. It is not for any court to say it is in your best interest to be released. You have a right to be released.
MR TILMOUTH: I accept that, if the Court pleases.
KIRBY J: In any case, you have come here pursuing what you say is the welfare jurisdiction of the Family Court, it is either good or bad, and we have to respond to it.
MR TILMOUTH: Yes, that is as it happened historically. To go back to your Honour Justice McHugh, I accept that of course. That is the Al Masri principle in our submission.
HAYNE J: It is a lot older than Al Masri.
MR TILMOUTH: Quite so.
McHUGH J: Why were the proceedings not brought in the Federal Court or, for that matter, in the Supreme Court of a State?
MR TILMOUTH: There would be problem with the latter but ‑ ‑ ‑
McHUGH J: Why?
HAYNE J: Why?
MR TILMOUTH: There is a question of jurisdiction of State courts. In fact, one of the South Australian single judges held that there was no jurisdiction.
GUMMOW J: What is the problem?
MR TILMOUTH: I cannot remember, if the Court pleases.
McHUGH J: Well, if the Commonwealth has no power to detain, what does it matter?
KIRBY J: You could come here, could you not, in our original jurisdiction?
MR TILMOUTH: Yes. In all events, the point I am making in the end result, your Honours, is that if, contrary to our main argument about the scope of the powers as opposed to jurisdiction in the welfare jurisdiction, it would be within the Court’s jurisdiction to make orders, as it were, inter se immigration detention, and I make that submission ‑ ‑ ‑
GUMMOW J: The existence of the habeas corpus remedy is something you have taken aboard. It is the first step perhaps before you start reading the Family Law Act, not the other way around.
MR TILMOUTH: Yes, I understand that, but for whatever reason ‑ ‑ ‑
GUMMOW J: Why therefore do you have to give this extended meaning to the welfare jurisdiction when the law coped with the situation elsewhere, for hundreds of years, since 1677?
MR TILMOUTH: With respect, on one view you do not because the first port of call might be the habeas corpus jurisdiction, but the fact is that the jurisdiction invoked in this matter was the welfare jurisdiction.
McHUGH J: I know it is, but that is what in effect amazes me. You have the burden and the expense of calling evidence and all the delay and argument about best interests and, as you seem to concede now, that comes last. The first question is, are these children being lawfully detained? If so, it is a simple legal argument. They are in or out. It has nothing to do with best interests.
MR TILMOUTH: Yes. Well, subject of course to the jurisdiction of the Family Court to make an order that they be released from immigration detention per se. That is what has happened on an interlocutory basis and on an interlocutory finding that there is prima facie illegal detention because of the time that has elapsed since they were first taken into immigration detention, which is over two years. But otherwise, as Mr Bennett points out, that issue has not been tried in the sense of the facts being directed to the practicability of removal and the other questions which would attend upon it.
GLEESON CJ: Where does it leave the rule of law to confer upon a court a discretionary capacity to release people from unlawful detention if the court thinks it is in their best interests?
MR TILMOUTH: In my submission, once the best interest is determined to be released, which is the final stage, then there has to be release. There is no difficulty with that.
HAYNE J: There are very few cases where you can say it is in the best interests to be one side of the wall rather than the other.
MR TILMOUTH: Quite.
HAYNE J: Yes.
MR TILMOUTH: And that was our argument.
HAYNE J: So we are just cluttering it.
MR TILMOUTH: Well, that was our argument.
HAYNE J: So what is the answer to the Chief Justice’s question? What happens to the rule of law?
MR TILMOUTH: Well, the rule of law is undermined. Your Honours, the problem is of course that 67ZC of the Family Law Act, putting aside jurisdiction in the Federal Court, requires that there be the finding of best interests. That is why I made that earlier submission. We have to go through that hoop, even if it is rather automatic, if you can prove illegality.
GLEESON CJ: Is the Solicitor‑General right when he says that the question of illegality of the detention was not argued in the Family Court?
MR TILMOUTH: Yes, he is.
McHUGH J: You say so in paragraph 42 of your submissions.
MR TILMOUTH: That is right, 42 and 43. Your Honours, what happened – first of all, we concede in 42 that there was no direct submission about the Al Masri principle. The case might have been mentioned incidentally. Your Honours may have noted that Justice Dawe refers to ‑ ‑ ‑
KIRBY J: Justice who?
MR TILMOUTH: Justice Dawe at first instance referred to the decision of Justice Murphy in Al Masri, but it was much by the way; there was no substantive argument directed to it. I accept that. The reason why it got on the agenda, if at all, was because your Honours would have noted annexed to our written submissions the Australian Government Solicitor wrote to the court after the matter had been argued and judgment had been reserved by its letter of 28 April 2003 and this was quite unsolicited and set out in the two pages, the various matters that appear there and concluded at paragraph 7 that:
Due to the fact that Mrs B and the children have no outstanding applications for review of the decision to refuse to grant them protection visas, our client considers that there is now a duty to remove them as soon as reasonably practicable pursuant to s 198(6) –
So the point got on the agenda, as it were, in that indirect way. Then our solicitor responded by the letter of 12 May, which is also annexed to our written submission, which simply refers to Al Masri. The matter was never called back on and certainly the whole question of Al Masri ‑ ‑ ‑
KIRBY J: Was that exchange drawn to the notice of the first Full Court?
MR TILMOUTH: Yes, it was. The Full Court under appeal here refers in two places to the letter from the Australian Government Solicitor but without elaboration, but it does record the fact that the letter was received. It remains true that there was no substantial argument about Al Masri at all.
GUMMOW J: It seemed to be corresponding with the Chief Justice’s associate. These things are done through the Registrar surely.
MR TILMOUTH: I do not know, your Honour. We were surprised, if I can put it that way, but that is what happened.
GUMMOW J: Or in open court.
GLEESON CJ: The Solicitor‑General has suggested that if it is found necessary to come to this point – and he submits it will not be – then we should defer judgment in this matter until Al Masri and related cases have been argued, but that would seem to leave you and Mr Jackson in a bit of difficulty. Would it overcome your difficulty if, should it come to that point, we were to deal with the matter on the basis that you and Mr Jackson will have the opportunity to observe what goes on in argument in those cases and after argument in those cases put any further written submissions about this case that you require to put?
MR TILMOUTH: Yes, speaking for myself, I would be content with that.
GLEESON CJ: All right. We will ask Mr Jackson the same question in due course.
McHUGH J: I do not think Mr Jackson is concerned with validity, is he? Maybe he has to operate within the context of the Family Law Act in his particular case because he is seeking access‑type orders.
MR TILMOUTH: Yes. For our part, your Honours, we would agree with that proposal in the Solicitor’s submission. Your Honours may have seen Al Khafaji and the other case. The submissions directed to the Al Masri point are far more extensive than they are here.
GLEESON CJ: Is it also the case that the only factual matter relevant to the issue of illegality of detention as seen by the Full Court of the Family Court was the age of the children?
MR TILMOUTH: Yes. The other concession that must be made – this is paragraph 43 of our written submission – is that insofar as the court below foundered on the question of the children electing out or their capacity to elect out, that was not raised either. In fact, as we concede in paragraph 43, the problem, if it was an issue at all, was that section 198(1) of the Migration Act had no relation to this matter simply because there was no request in writing to be removed. So that remedy was not even raised as a factual issue in the court below.
The other matter of course is because it was interlocutory, there was no evidence directed as to the practicability of removal either. It is on that factor that Justice Ellis expressed a dissent in relation to this issue, pointing out that there was simply no evidence in relation to that matter at all.
McHUGH J: Mr Tilmouth, what concerns me is that by bringing this case in the Family Court your side may have lost sight of available arguments concerning validity. Insofar as your submissions seek to defend the case, you do so on the basis of the Al Masri principle, but have you given any consideration as to whether or not Chapter III of the Constitution prohibits in all circumstances the involuntary detention of children, full stop?
MR TILMOUTH: That point has not yet been litigated.
McHUGH J: I know and it may be a point that should be at the forefront of the argument, but by taking the course that has been taken there is delay in getting to it, months have gone by.
KIRBY J: You were asked a question by the Chief Justice, if it comes to this, can you repair the procedural problem that Al Khafaji is coming on later in the year? In logic is has to come to this because, as I think you conceded in earlier answers, the first question is, is the detention lawful? If it is not lawful, end of question. You do not get into discretions, balances, welfare, or anything. You are dealing with a legal issue. It is only if you fail on that that you then have a potential possible need to invoke a welfare jurisdiction as against a migration power and you get into possibly questions of balancing different federal statutes, so that logic takes you first to the issue of legality, and so we have to get to it.
MR TILMOUTH: Yes, subject, however, to the problem of the Family Court having jurisdiction to in effect issue an order for habeas.
KIRBY J: That may be so and that is Justice McHugh’s point, that if logic takes you first to power, then really you have to give thought between now and when this matter is reserved and Khafaji is argued to whether or not there is in some supplementary application to this Court in its own original jurisdiction or elsewhere and whether or not the point concerning Chapter III does not have to be raised, both in Al Khafaji and in this case.
MR TILMOUTH: Yes, I take all that on board, if the Court pleases. On the question of delay raised by your Honours, of course whatever the proceedings were, there would always have to be some primary findings by some tribunal in the first place.
GUMMOW J: You are here to resist the Solicitor‑General’s onslaught.
MR TILMOUTH: That is right.
GLEESON CJ: And what brought us to all that discussion was that you endeavoured to throw into the balance as a discretionary consideration the possibility that the detention is illegal.
MR TILMOUTH: Yes, only because section 67ZC says you have to and to avoid the question of jurisdiction in the Family Court to issue habeas itself which is ‑ ‑ ‑
KIRBY J: I just have to say – and I think it has been has been hinted at by others – that it is a very uncomfortable notion that you take the issue of the power to detain as a discretionary matter because in the traditions of English law and our law every minute of the loss of liberty is precious and if you are not lawfully detained, you should not be there, not for a minute.
MR TILMOUTH: Yes, I did not mean to qualify the general principles. We are simply acknowledging what the Family Law Act said. The other purpose, if the Court pleases, of making that submission, was this. If I can take your Honours to page 213 of the appeal book, the majority at paragraph 400 made an alternative suggestion, as it were, putting aside illegality. They said this:
We consider that if it was to be determined that the continued detention of the children was not unlawful, the Court could not order their release, but could nevertheless give directions in relation to their welfare, including directions as to the nature and type of detention to which they are to be subject, as to medical and other treatment to be made available to them and as to the provision of appropriate education. There may well be other matters relating to their welfare that could be the subject of Court Orders.
It might be religion for example, as your Honour Justice Hayne suggested earlier. But I am simply pointing out here that as an alternative the court suggested that it might make orders falling short of orders from release from immigration detention but still within immigration detention itself.
Your Honours, Justice Ellis, who was in dissent on the main question, agreed however on this issue. That appears at page 222 paragraph 421, after having decided that there was no jurisdiction to make the order for release:
However, the provision of adequate, proper and prompt medical treatment for the children and of ensuring they are not exposed to violence and trauma are matters directly related to their protection and welfare. Such matters arise out of and are aspects of the relevant marriage relationship.
So in that narrow respect there was actually a unanimous judgment of the court below saying that the Family Court did have jurisdiction but in rather narrow and limited circumstances.
Your Honours, there is just one final matter and it flows from what has already been talked about in terms of the Al Masri point and it only flows from a comment that was made arguendo with my learned friend Mr Bennett relating to Lim’s Case. I just wish to make ‑ ‑ ‑
GUMMOW J: What is the Al Masri point?
MR TILMOUTH: It is the question of there being constitutional limitations on the power of detention. The only point I wish to make at this juncture was the material difference between the current regime in the Migration Act, and the regime existed at the time of Lim’s Case was of course the cap of 273 days. That, in our submission, is quite material when one comes to the Migration Act itself.
KIRBY J: I do not quite understand that point. At what point - presumably if people arrive and they are unlawful immigrants they can be detained for a period just to process them. Now, when does time become unconstitutional detention?
MR TILMOUTH: It is difficult to say.
KIRBY J: It certainly is.
MR TILMOUTH: Yes. Perhaps I should have made this clearer. The reason why I raised that was my learned friend suggested that Lim founded on the basis of a detainee to elect out.
KIRBY J: I am sorry I did not hear that.
MR TILMOUTH: Lim - the ability to elect out is what saves the legislation, 54R as it then was. In my submission although that is partly true, and it was certainly an important factor, the other factor which in my submission saved 54R as it then stood was the cap of 273 days. I just wanted to make that point because I do not accept that it was simply a case which resides upon the ability to elect out, which of course remains in the current legislation.
KIRBY J: Does the evidence reveal how long these children were in detention until they were released?
MR TILMOUTH: Yes it did, your Honour, and I think it is in our chronology as well - in the Minister’s chronology rather - January 2001.
KIRBY J: Until?
MR TILMOUTH: Until 25 August this year, when the third Full Court released the children.
KIRBY J: So that is two years and eight months.
MR TILMOUTH: Yes. What influenced the court of course, even though it was interlocutory, was the sheer effluxion of time, even though there was no direct evidence about reasonable practicability.
It has just been pointed out to me of course another factor was the decision of this Court in the mother’s case to refuse her appeal. Once that was dealt with, there was simply nothing left for the children to have any foothold, as it were, to remain in Australia. May it please the Court.
GLEESON CJ: Thank you, Mr Tilmouth. Yes, Mr Jackson.
MR JACKSON: Your Honours, may I mention first an aspect that arises from the submissions that have been made earlier. The Court has on a number of occasions adverted to questions such as whether the Family Court could let a child out of prison and matters of that kind. This aspect is dealt with specifically by the Family Law Act. One starts with section 69ZK(1). Your Honours will see that it provides:
A court having jurisdiction under this Act must not make an order under this Act . . . in relation to a child who is under the care (however described) of a person under a child welfare law unless –
and your Honours will then see what follows. That is the first part. I will come to the definition of “child welfare law” in a moment. One then sees also section 69ZK(2) which says:
Nothing in this Act, and no decree under this Act, affects:
(a) the jurisdiction of a court, or the power of an authority, under a child welfare law to make an order, or to take any other action –
and your Honours will see then what follows from that. Now, “child welfare law” is defined by section 60D(1). We have put together a small bundle of documents that your Honours should have which set out the provisions from now on I am going to refer to. Section 60D(1) really says no more than that it is something prescribed. The relevant prescriptions are found in two places in the Family Law Regulations. The first is regulation 12B(1) which says:
For the purposes of the definition of “child welfare law” . . . each of the following classes of laws is prescribed, namely, any law of –
the States or Territories –
that relates to the imprisonment, detention or residence of a child upon being dealt with for a criminal offence.
Then sub-regulation (2) refers to Schedule 5. Schedule 5 to the regulations lists a large number of laws dealing with children in various ways in each of the States and Territories.
HAYNE J: I do not seem to have it, Mr Jackson, and I am not sure that others have it.
MR JACKSON: Your Honours, it should be a bundle which ‑ ‑ ‑
HAYNE J: It is about to come to us.
MR JACKSON: I am sorry, your Honour, I thought it had already moved. To put it shortly, what there is is that all the laws one would expect to be under the heading “child welfare laws” are covered by Schedule 5 to the regulations on the one hand. All the provisions that relate to imprisonment in any of the States are covered by regulation 12(1).
In relation to children who were convicted of federal offences, as distinct from State or territorial offences, one has of course the provision – I do not think your Honours have it – of section 20C of the Crimes Act which says that persons convicted, et cetera, of federal offences are to be treated as if convicted, and so on, of State offences. So what one sees is that the Family Law Act has excluded any operation of decrees under that Act in relation to all the categories to which I have just referred.
Now, your Honours, in the earlier cases, in dealing with the validity of the Family Law Act and the provisions of it, there were differences of view on the question whether the Parliament had power to make laws, be it under 51(xxi) or 51(xxii), which would have the effect of dealing with the position of children who were in prison. Your Honours, Justice Murphy, for example, said, yes, they could, but they have not. Justice Gibbs said, no, they cannot, and they have not.
KIRBY J: What case was that in?
MR JACKSON: Your Honour, I might mention them in just a moment. That is really the next thing I was going to come to if I may, but could I just say one further thing? Your Honours, one does see that a large number of laws and detention and various forms of restriction on liberty are excluded by the Family Law Act provisions. One does not see that in relation to the Migration Act.
Now, your Honours, could I come next to the question of the ambit of the jurisdiction conferred by the provisions of the Family Law Act and, your Honours, one starts with section 69H(1) by which:
Jurisdiction is conferred on the Family Court in relation to matters arising under this Part.
Your Honours, such matters, in the first place, may be of the genus described as parenting orders, which are set out in section 64B. Now, your Honours have been taken to the provision in passing, as it were, earlier. May I just say that if your Honours go to section 64B a parenting order is defined by section 64B(1), but they fall into – what they may deal with is provided for by section 64B(2) including such things as:
(b) contact between a child and another person or other persons . . .
(d) any other aspect of parental responsibility for a child.
One sees, your Honours, that the types of order that are particularly referred to are in 64B(3), “a residence order”; 64B(4), “a contact order”; 64B(5), “a child maintenance order” and then, as it were, a type of dragnet clause in 64B(6), “a specific issues order” as your Honours will see from the second sentence of the provision:
may, for example, confer on a person (whether alone or jointly with another person) responsibility for –
to put it shortly:
long‑term care, welfare and development –
or short‑term, the same. So, your Honours, they are the types of orders that may be made, and if one is speaking about what is contemplated by the ambit of welfare in the Act, one would think that it contemplates things like long‑term or short‑term “care, welfare and development of the child” and includes such things as the ability, the extent to which there can be contact between a child and its parents, one of the matters which is the subject, of course, of the application made by the second respondent, the father.
Your Honours will also see that orders of the kind referred to in section 64B may be applied for by any of the persons referred to in section 65C. They include:
(b) the child; or
(c) any other person concerned with the care, welfare or development of the child.
Your Honours, the best interests of the child, of course, by section 65E are made the paramount consideration and best interests of the child is defined by section 68F. Your Honours, if one goes to section 68F(2), one sees that amongst the matters that the Court has to consider are, for example, 68F(2)(c):
the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents . . .
(d) the practical difficulty and expense of a child having contact with a parent . . .
(e) the capacity of each parent, or of any other person, to provide for the needs . . .
(g) the need to protect the child from –
matters of the kind there referred to. So that one sees that the concept, in our submission, of the welfare of the child that can be derived from the provisions of the Act is one which relates to all the matters that one would in ordinary parlance regard as being fully for the welfare of the child.
If one goes then to section 67ZC, your Honours will see that it is speaking first of all about its construction as distinct from its validity. Your Honours will see, in our submission, that it is a provision which we would submit does two things; one is to deal with a subject matter and also to confer jurisdiction. One sometimes sees provisions which in short form both provide for the law and also provide for the jurisdiction and this, in our submission, is one of those provisions.
The sources of validity of the provision as a freestanding provision would come from three possibilities. One possibility is the exercise of the external affairs power. If that is so, it would justify it in toto. The second possibility is in relation to the marriage power. No doubt, your Honours, one would have to do some reading down of it to accommodate the marriage power, but the reading down is of a relatively simple kind, in the sense that we are speaking about children of a marriage on the one hand and on the other hand proceedings in which a parent of a child is a party. I will come to the reason for putting it that way in a moment, if I may. Of course, probably one would not need to do so, one might not need to do so anyway, in relation to the application of section 51(xxii).
Your Honours, if I could come then for a moment to the cases decided in relation to the ambit of the marriage power before going to the operation of Division 12. Could I just say this, that what we would submit is that the ambit of the power under section 51(xxi) has been the subject of a number of decisions in the Court, especially of course since the enactment of the Family Law Act. We would submit that two features are established. One, that the power extends really to all aspects of the welfare of a child of a marriage on the one hand and, secondly, that because the rights of a parent of a child of a marriage may be affected by an order relating to the welfare of a child of a marriage, it is sufficient that the parent be a party to proceedings.
Your Honours, could I mention in a sense the first of these cases, and that is in the light of something your Honour Justice Callinan mentioned this morning, and that is the relationship between section 51(xxi) and 51(xxii). In Russell v Russell (1976) 134 CLR 495, it was held that the ambit of the marriage power in section 51(xxi) was not to be read down by the presence of section 51(xxii), and I think on a number of occasions, including one unsuccessfully myself, in an endeavour to overrule that, unsuccessfully ‑ ‑ ‑
CALLINAN J: Mr Jackson, perhaps I am misreading it but I thought their Honours said that the presence of each affected the meaning of the other. I was looking at what the Chief Justice said at page 508.
MR JACKSON: Your Honour, he seemed to be in the minority. The way in which the case worked out, your Honours, if I could perhaps summarise it this way, was that there was five members of the Court sitting. Justice Jacobs said the relevant provision of the Act was wholly valid. Chief Justice Barwick and Justice Gibbs thought it was wholly invalid because they said section 51(xxi) had a reduced ambit by reason of the presence of 51(xxii). The other two members of the Court were Justice Mason, and Justice Stephen agreed with his reasons. He thought that it went too far but that it could be read down.
CALLINAN J: Did you refer me to Justice Mason?
MR JACKSON: Yes, I am about to, your Honour.
CALLINAN J: Thank you.
MR JACKSON: Your Honour, I am sorry, this case is not on our list. It is 134 CLR. Justice Mason’s reasons – there are four passages I want to refer to. The first is at page 539.
KIRBY J: How does one find the governing rule in the case, given this disparity of views? Do you put aside Chief Justice Barwick and Justice Gibbs and try to find a common principle in ‑ ‑ ‑
MR JACKSON: Your Honour, one ended up with the situation that three members of the Court thought it was partially valid, three out of five. So it then became a question of whether it could or could not be read down. Then there was a reading down and in later cases what has been made clear is that the method of reading down did not reflect the full ambit of the power, that was a method of reading down adopted in the case.
GUMMOW J: Anyhow, footnote (50) of P v P 181 CLR 583 at 600 which is rather more contemporary says Russell v Russell decided what you said ‑ ‑ ‑
MR JACKSON: Yes, your Honour.
GUMMOW J: Also F v F 161 CLR 376 at 387.
MR JACKSON: Your Honour, could I just give your Honour Justice Callinan the references I was about to mention. In relation to the ambit of the power, Justice Mason’s reasons are at page 539 about point 9 through to page 540 about point 3. At page 541 about point 2 in I think the fifth line on the page he said:
Unfortunately by conferring a jurisdiction unlimited as to parties, par. (c) in my opinion travels beyond the marriage power.
Then he came, your Honours, to the method of reading down which ‑ ‑ ‑
CALLINAN J: Mr Jackson, I am sorry to interrupt you, but just going to the passage you referred me to at page 539.
MR JACKSON: Yes.
CALLINAN J: At the end of it his Honour said:
Yet the argument against validity in the present case not only denies this approach to construction but advances to a more extreme conclusion by subtracting from the content of the marriage power, not only what is contained within s.51(xxii.), but the entire topic of enforcement of the rights, duties and obligations created in the exercise of the marriage power.
MR JACKSON: That reflected an argument, your Honour, the argument being that it was one thing under the marriage power to prescribe rights. It was another thing to confer jurisdiction on a federal court in relation to those rights. It is that latter aspect your Honour is dealing with there I think. That proposition was rejected by the court.
Your Honours, the method of reading down, one then saw at page 542 about point 6 on the page, and your Honours will see the sentence commencing:
For this reason a reading down should be carried out in the first instance by reference to the marriage power ‑
and then your Honour will see that the way in which it was read down and the effect of reading down appears at page 543 about point 4, where you see “(iv) Yes; but only to the extent to which” et cetera. Your Honours, I said a moment ‑ ‑ ‑
KIRBY J: It just seems a little remote from a law with respect to marriage to stretch that to say you can turn that into a general federal law on child welfare given especially the way that head of power is expressed in the Constitution.
MR JACKSON: Your Honour, could I say this, that this is not, with respect, entirely untilled ground as it were.
KIRBY J: I realise that, but the tilling appears to have concentrated on some very strange criteria such as the sterilisation issue, which I can understand that that is a very serious matter, but it does not seem to make it any closer to marriage.
MR JACKSON: Your Honour, could I endeavour to take your Honours to the - and I will do so as briefly as I can - cases which deal with that issue and express the reasons for it. May I also say in relation to the sterilisation issue, what your Honours will see was that from Marion’s Case but also from P v P I think at page 600 towards the bottom of the page, that sterilisation really is in a sense the top of the tree, the worst case, the fact that any kind of medical condition or care or something of that kind falls within the welfare aspect.
McHUGH J: But where are the limits to this power in the way you would seek to construe it? Does 67ZC extend to making orders to a Department of Education of a State as to how a child should be educated, to what sports and at what time the child should play? Could the Family Court say that the State is prohibited from having weekend sport? Is that a law with respect to marriage?
MR JACKSON: Your Honour, one can choose examples that are right on the edge, wherever the edge may be.
KIRBY J: But that tends to be the business we get into.
McHUGH J: You do not get any easy cases here, Mr Jackson.
KIRBY J: You know better than most.
MR JACKSON: That comes as a shock, your Honour. Leaving that aside, could I say what one is speaking about is the welfare of children. Of course this takes place in a society in which there are laws and one would not think that the power to make laws with respect to marriage, whilst it deals with the nurture of children, is a law that is going to take over or cover every possible aspect of the circumstances in which someone who is a child happens to be. One is dealing with a circumstance in which the jurisdiction is one in which the rights of the parents in relation to the child are ones which are being asserted or affected.
KIRBY J: But in their capacity of marriage?
MR JACKSON: As parents of a child of the marriage. So one can ask: is what is being done something which can be regarded as reflecting either the assertion of the rights of a parent or the affectation, perhaps adversely, of the rights of a parent involving a third person? In the ordinary course of events one would not regard endeavouring to tell an education department what days they should sit on or not to be something which related to it. Then a difficult question might arise if you have children who belong to a religion on which they could not go on a holy day being Friday, say. That is a question that does not really require resolution here, with respect. There will always be cases on the edge.
McHUGH J: But does not P v P decide that insofar as a law is valid, it must be a law for the protection of the welfare of the child of a marriage insofar as the occasion for the protection of the welfare arises out of or is sufficiently connected with the marriage?
MR JACKSON: If one goes to P v P 181 CLR 600, your Honours will see the reference at the top of page 600 to an extract from Marion’s Case. Going down into the following paragraph, one sees the reference to the fact that 51(xxi) is not to be read down. Then the fourth line in that paragraph:
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.
That is then explained, going on:
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 –
your Honours will see the word “including” –
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.
Other views might have been taken but that is a view taken there by four members of the Court and also reflects Marion’s Case in which your Honour agreed with the four members of the Court as well on that point.
KIRBY J: I see what is written, but it just seems to me that the problem in Marion’s Case of sterilisation arose out of the life of the child, but it just seems a very remote connection to the marriage. They could be married or unmarried and it would not have mattered a jot.
MR JACKSON: They were unmarried, your Honour.
KIRBY J: The sterilisation of the child is the essence of it.
MR JACKSON: If they are unmarried, your Honour, one would be looking to see if there was a reference of power.
KIRBY J: Exactly, that is the point.
MR JACKSON: Because we would not be talking about the Commonwealth at all.
CALLINAN J: Mr Jackson, if I can go back to that passage on page 600, P v P, I know it is supported by previous jurisprudence of the court, but why does marriage encompass laws dealing with the protection or welfare of children in a marriage?
MR JACKSON: Because, your Honour, marriage involves, not necessarily but very commonly, the fact that there will be progeny of it who are children of a marriage. I do not want to be facetious about it, your Honour. It is a feature of marriage that one of the products of marriage is there are children.
HAYNE J: But is not the critical feature that which finds reflection in 60B(2)(c) of the Act, namely that the parents not just have:
parents share duties and responsibilities concerning the care, welfare and development of their children –
and that it is the shared obligation through marriage which provides the connection in relation to the subject matters of care, welfare, development.
MR JACKSON: Your Honour, that is how it starts, but it does go a little further than that, if I could say. The reason why it does, or the fact that it does, is exemplified by the Court’s decision in Dowal v Murray (1978) 143 CLR 410. Your Honours, in that case that concerned the validity of section 61(4) of the Family Law Act as it was then, and that dealt with the question of the surviving parent’s entitlement to custody on the death of the parent who had the custody order. Your Honours will see section 61(4) set out at page 412 at the bottom in the footnote on the page. If I could invite your Honours to note two things about it. The first was there was a need for a further order on the one hand, and the second thing was that it provided specifically for a non‑parent to be a party to the proceedings.
Now, your Honours, the reasons of Acting Chief Justice Gibbs went beyond, in terms of the ambit of the power, those previously expressed by him in the earlier cases. When I say the earlier cases, I have not referred your Honours to two cases that I think are referred to in our written submissions. One is R v Demack; Ex parte Plummer. The other is R v Lambert; Ex parte Plummer. They dealt with the provisions that are now - the equivalent of which is now section 69ZK, as I referred to at the start of our submissions this afternoon. Your Honours will see that if one goes to page 417 about point 9 on the page, in the passage which goes through to page 418 about halfway down the page, his Honour went on to express views, and in particular at page 418 about point 4 on the page his Honour said:
The power extends, in my opinion, to the definition and enforcement of the right of a surviving party to a marriage to the custody of a child of the marriage after the marriage has come to an end by death or divorce. In such a case the right is still one that arises out of the marriage relationship.
A little further down the same page his Honour said:
However, it does not follow that the exercise of the marriage power is restricted to defining, or providing for the enforcement of, the rights of custody of the parties to the marriage between themselves.
So that his Honour accepted that it could go beyond the parties to the marriage. Now, your Honours will see Justice Stephen at page 420, at the bottom of the page, referring to:
What ensures that the s. 61(4) was within the scope of the marriage power is its concern with a child of the marriage and with the redefining and regulation of that child’s custody, at the instance of the surviving parent –
et cetera, and that was quite central to the marriage power. His Honour went on to discuss the marriage power in a passage which goes through to page 423, about point 9 on the page. Your Honours will see at the bottom of page 423 he held there that the fact that the proceedings were ones in which one spouse necessarily would not be a party and so that the proceedings would not be between the parties to the marriage was not fatal to validity. He went on to say specifically in a passage at the bottom of page 423, a lengthy passage going through to page 425 about point 3, that the method of reading down which had been adopted in Russell v Russell was not co‑terminus with the ambit of the marriage power.
GUMMOW J: Perhaps the critical factor in Dowal v Murray was the Marriage Act Case itself and if one goes to 421 in Justice Stephen’s judgment, particularly in the paragraph beginning at about point 6, the particular reference is to Justice Windeyer, that is really the starting point. In other words, the marriage power is not a power about ceremonies of marriage.
MR JACKSON: Yes, and, your Honour, it really ‑ ‑ ‑
GUMMOW J: Once you get beyond that, you get into the sorts of considerations being spoken of at 421.
MR JACKSON: That is so, your Honour, yes. Of course, until the Family Law Act there had not been an attempt to use the marriage power in any substantial way because there had been the Matrimonial Causes Act 1959, but that dealt with the various forms of various matrimonial causes which were contemplated by section 51(xxii).
CALLINAN J: Mr Jackson, again I am sorry to keep on coming back to it, but this notion that one part of section 51 cannot influence the interpretation of another part strikes me as an odd proposition, with all due respect. If you look, for example, at placitum (xxxii) and (xxxiii), why would you not say that reading them together would have the consequence that the control of railways to transport naval and military personnel, for example, would not constitute acquisition?
MR JACKSON: I am sorry, your Honour, I missed that.
CALLINAN J: I am sorry, I was looking at 51(xxxii) and (xxxiii), for example. Surely, with all due respect, the language of one part of section 51 must influence the language of other parts of section 51. That is what all the dissenting judgments of the Chief Justice and Justice Gibbs hold in Russell’s Case.
MR JACKSON: They go further than that, with respect, your Honour, because they adopt that premise and then apply it to say one does not give 51(xxi) the meaning it would otherwise have because of the presence of 51(xxii).
CALLINAN J: What was the case in which Justice Deane said that in constitutional matters the ordinary rule of precedent does not necessarily apply? Do you remember that?
MR JACKSON: Not ‑ ‑ ‑
CALLINAN J: You might think of it anyway.
GUMMOW J: Ebda Nominees, is it not?
McHUGH J: Ebda Nominees.
CALLINAN J: I must say for myself I would need a lot of persuasion that the meaning in the language of one part of section 51 does not affect the meaning of another part of section 51.
MR JACKSON: Your Honour, it is I think – may I check this – in R v Lambert.
CALLINAN J: That is one of the cases cited at page 600 of P v P. It is the first of them I think.
MR JACKSON: Yes, R v Lambert; Ex parte Plummer, and enthusiastic argument to that effect was rejected.
McHUGH J: There are many illustrations of it in the Constitution. I mean 51(xxxi) is really the only power that is regarded as influencing the construction of other powers, and that is because it has been regarded as a constitutional guarantee, but Parliament makes laws under the trade and commerce power dealing with industrial arbitration even though there is an express power in 51(xxxv).
KIRBY J: It goes back to Engineers, does not it? If there is a grant of power in the Federal Constitution, you give it a full amplitude. Indeed, it goes back to McCulloch v Maryland in the United States.
CALLINAN J: It is not just a question of amplitude, it is meaning, is not it, first?
KIRBY J: Pretty fundamental stuff, this, 1921.
MR JACKSON: Your Honour, could I say in relation to it, first of all, on the narrower issue, your Honours will see in R v Lambert (1980) 146 CLR 455, commencing about point 4 on the page, the argument that your Honour Justice Callinan was mentioning to me put and rejected, and the reasons why it was rejected there set out.
McHUGH J: In any event, you can say that marriage ordinarily precedes divorce, and the reference to custody and guardianship is in relation to divorce, and marriage concerns more than the respective rights of the parties to the marriage. It involves obligations and rights of custody and duties of welfare, and it is an essential ingredient apparently.
MR JACKSON: Your Honour, that is what Justice Gibbs said really, and in R v Lambert at page 456 in a passage which commences at the top of the page and goes through to the end of that paragraph ‑ ‑ ‑
KIRBY J: What is the volume of Lambert?
MR JACKSON: I am sorry, 146 CLR 447, and the reference I was just giving was page 456.
GLEESON CJ: I notice, just looking at the footnote in Dowal, this reference to the welfare of the child as the paramount consideration was in the Family Law Act 1975 from the beginning, some 16 years before Australia acceded to the Convention on the Rights of the Child.
MR JACKSON: Yes, your Honour, that is so, and then once there had been the accession to the treaty, there was further legislation, of course, putting it in a different form, and no doubt reaffirming, with the backing of the Convention behind it, the view that had been earlier expressed.
KIRBY J: How far have you got in the tilling of this power by the Court?
CALLINAN J: You should not have to re‑till ground simply because I said something about it, Mr Jackson.
MR JACKSON: Your Honour, I was endeavouring to say this, that if one moves on to Vitzdamm‑Jones v Vitzdamm‑Jones (1981) 148 CLR 383, what one sees is that that is the point at which the majority of the Court identified the necessary requirement as being not just that the child was a child of the marriage but also a party to the marriage was a party to the proceedings. Now, your Honours, the judgment of Justice Gibbs was one with which Justices Stephen, Mason and Murphy relevantly agreed, and there are two passages I wanted to take your Honours to. One is at page 414, and your Honours will see at about point 2 on page 414 that his Honour said that:
The learned Solicitor‑General for Victoria, in his attack on the validity of the sub‑section, submitted that the power conferred by s. 51 (xxi.) of the Constitution does not empower the Parliament to enact laws which provide for the definition or enforcement of the rights of the parties to a marriage against third parties, and is restricted to defining or enforcing –
in a manner your Honours will see there set out. Now, his Honour referred to that same argument having been advanced in Lambert, but he then went on to say, about point 4 on the page:
that the argument that the marriage power should be restricted in that way is contrary to Dowal v Murray, and that there is no reason in principle why a power which extends to the creation, declaration or definition of the rights and duties which arise from the marriage relationship should be so confined that those rights and duties should exist only as between the parties to the marriage and the children of the marriage, and should not be enforceable against other persons.
I will not read it out, but your Honours will see the remainder of that paragraph, including the concluding sentence, “The Parliament can, in my opinion”. Your Honours will then see at the bottom of page 414 in the last paragraph what in effect ties the proceedings to the marriage power. That is, he said it would:
be beyond the power of the Parliament to make provision for the adjudication of contending claims by strangers . . . in a case where no right or claim of a party to the marriage is involved. Such a situation could ordinarily arise only after the death of both parties . . . since the custodial rights of any living party to the marriage would necessarily be affected by an order giving custody of the child to a stranger.
Your Honours will see that then dealt with through the remainder of that paragraph.
GUMMOW J: How can one encapsulate what Justice Gibbs says in Vitzdamm with reference to what he decided in Dowal v Murray?
MR JACKSON: Dowal v Murray was a case in which his Honour had expressed the view that the power was one which extended to the definition of rights of a party to the marriage to a child of the marriage, the other party being dead, as against third parties. So what he is then saying ‑ ‑ ‑
GUMMOW J: I think it is against the grandparents.
MR JACKSON: Yes, indeed. What he is then saying is that in response to the argument that your Honour will see adverted to at the top of page 414, the first new paragraph, that argument is not right; Dowal v Murray goes beyond that. Then the proposition deriving from Dowal v Murray that there could be proceedings or orders made under the marriage power or pursuant to the marriage power which affected the rights of persons other than parties to the marriage is elaborated upon and developed in the remainder of his Honour’s reasons. No doubt as things happen, this goes a little further than it was before, but incrementally, if I could use that word, one sees the view of the ambit of the power growing as more situations appear before the Court.
Your Honours, one comes then to Cormick v Cormick (1984) 156 CLR 170. At page 175 your Honours will see a judgment of Chief Justice Gibbs with which a number of other members of the Court agreed – I think five other members of the Court. At the bottom of page 175 your Honours will see:
It is now well settled that “marriage” in s 51(xxi) includes the relationship or institution of marriage and, since the protection and nurture of the children of the marriage is at the very heart of the relationship, that the power to make laws –
et cetera. That goes through to the end of that paragraph. Your Honours will see Justice Mason agreeing at page 178.
GUMMOW J: In a way Cormick v Cormick is a by‑product of revulsion against the use of Latin. If this section had said in loco parentis, it might have been quite different.
MR JACKSON: It is a difficult issue, your Honour.
GUMMOW J: We have got into this household idea.
MR JACKSON: The only ones I allow myself to use are “prima facie” or “inter se” relying on section 74.
GLEESON CJ: I see that in Russell v Russell 134 CLR Justice Jacobs referred to an argument that a law about custody, guardianship and maintenance of the children of a marriage is a law relating to the children and not to a marriage and he said that is a false dichotomy at the bottom of page 549, but then he went on to say:
However, the distinctness in subject matter must still be observed when the question being considered is the extent of constitutional power.
He set out at length in his reasons what is a possible explanation of that paragraph referred to in P v P from the earlier case as to why a law relating to the power of the Court to authorise or decline to authorise sterilisation is a law with respect to marriage.
MR JACKSON: Yes. Your Honour will see at page 550, after setting out his views on the marriage power, then went on to say, halfway down page 550, what his conclusions were. Your Honours will see they really go down to the bottom of that page I think.
GLEESON CJ: He actually quotes from a passage from a judgment of Justice Taylor in an earlier case at the bottom of 547, about marriage and about the extent of the constitutional power.
MR JACKSON: And including the words, “its full meaning will be worked out only in the fullness of time”. Your Honours, that has happened, with respect.
KIRBY J: This is what a civil lawyer from France finds astonishing about our technique of the common law. We go through these cases, we pick up a word here and a phrase and a page here, but what are the set of principles that emerge from this? What can you say of the power from all of these cases?
MR JACKSON: Your Honour, what I can say is that the power with respect to marriage is a power, the ambit of which extends at least to the matters set out in the passage from Cormick v Cormick to which I have just referred, where six members of the Court said that. Your Honour, could I also say that one sees to the same effect another judgment of the majority of the Court in V v V (1984) 156 CLR 228. It was that case where it was held specifically that proceedings with respect to custody, guardianship, maintenance, et cetera were within power if one party to the marriage was a party to the proceedings. Your Honours will see in that case, in the headnote first of all, that “matrimonial cause” was there defined to include:
proceedings with respect to the custody, guardianship . . . of . . . a child of a marriage, being proceedings to which one party to the marriage is a party –
and, your Honours, that was held to be a valid exercise of the marriage power. You will see that, if I can take your Honours to page 232, where in the first new paragraph on that page five members of the Court said:
Recently, in In the Marriage of Cormick, it was accepted by six members of this Court that the following principles were established by the earlier cases.
Now, your Honours, the principle is there set out in the passage from Cormick, but what is said, your Honours, is then:
The power of the Parliament to define and make provision for the enforcement of the rights of the parties . . . is not restricted to the definition and enforcement of the rights of the parties to the marriage between themselves.
Your Honours will see then, after the reference to Lambert:
It is not limited to confirming and protecting the rights of the parties to the marriage, or of one of those parties. It extends to allow the Parliament to provide that rights of the parties to the marriage, which arose from the marital relationship, may be defeated or diminished, eg, by an order granting custody or access to a stranger.
Your Honours will see what goes on to the top of the next page, the first four or five lines. Could I say then that if one goes to the next paragraph on page 233, what is made clear in the last sentence of that paragraph is that because:
the definition requires that a party to the marriage should be a party to the proceedings, which must necessarily involve a right or claim of a party to the marriage.
That being so, one has a situation where, we would submit, that laws defining the rights of the parties to the marriage, to the custody or guardianship of the child or to the welfare of the child of the marriage, laws dealing with the position of the welfare of the child in circumstances where a party to the marriage seeks orders relating to their welfare while they are in the custody of a third party, are laws which fall within the ambit of the power.
GLEESON CJ: Is section 43 of the Family Law Act relevant to this?
MR JACKSON: Well, your Honour, the 43C, in our submission, there is no reason why it would not be. It is speaking of the exercise of jurisdiction under this Act. It is not limited to the jurisdiction in matrimonial causes, although that is the part I think in which it appears, but, of course, that part is one which – Part V starts at section 39; it speaks of “matrimonial causes”. This is not I think a matrimonial cause, but, your Honour, at the same time section 43 seems to be speaking very generally.
Now, your Honours, I have just gone I think to V v V, but the ambit of the marriage power was adverted to, and perhaps in a way that may put it a little more widely, or perhaps colourfully by Justice Brennan in two cases. One is R v Cook; Ex parte C (1985) 156 CLR 249.
KIRBY J: I did not get the volume. In fact I am not hearing some of what you are saying, Mr Jackson.
MR JACKSON: I am sorry, your Honour, 156 CLR 249 and could I just note one thing in passing, at page 253 Chief Justice Gibbs said:
It is now firmly established that, since the protection and nurture of the children of the marriage is at the very heart of the marital relationship, the power given by s. 51(xxi) –
and your Honours will see him dealing with that a little further. At page 257 at the commencement of Justice Brennan’s reasons, his Honour said:
Nurture of the children born of the union of husband and wife is at the heart of the marriage relationship -
Your Honours, one speaks of the marriage relationship which is, at least, a significant part of the concept of marriage.
The marriage power therefore supports a law –
and your Honours will see the remainder of the paragraph, including particularly the last four lines:
but because authority in respect of the children born of a marriage and the existence of obligations owed to the children born of a marriage are aspects of marriage regarded as an institution.
Your Honour, the other case to which I wish to refer is Re F; Ex parte F (1986) 161 CLR 376 and Justice Brennan at page 399 referred to the same theme in the last paragraph on the page saying:
If one keeps steadily in mind that laws with respect to custody and guardianship of children of a marriage are within the marriage power because those laws affect the nurture of the children of the marriage, one perceives more clearly that it is the status of a child of the marriage, not the rights of the spouses inter se, which brings the custody and guardianship of the child within the legislative power.
Your Honours, by the time of Marion’s Case (1992) 175 CLR 218, the jurisdictional provision or the jurisdiction‑conferring provisions of the Family Law Act had been amended to the form which appears at page 257. Your Honours will see that at the first new paragraph on page 257. It is really, in a sense, not significantly different from the provisions presently in question. What one sees if one goes to about point 6 on the page was this, that what was said:
was a vesting in the Family Court of the substance of the parens patriae jurisdiction –
Now, your Honours, that is what the Court said. It was the “substance” of that jurisdiction. They were not saying it was the parens patriae jurisdiction, or it should be treated as exactly the same, but the substance of such a jurisdiction – but by the name “welfare”.
One sees, also, the reference by your Honour Justice McHugh at page 317, about point 9, up to page 318, about point 4, that your Honour expressed agreement with what the other members had said about the operation of the Family Law Act. Now, your Honours, that jurisdiction was confirmed by Chief Justice Mason, Justice Toohey and your Honour Justice McHugh in ZP v PS (1994) 181 CLR 639 at 646. In that case, those members of the Court were in the majority in the actual result, but the point does not seem to have been in contention. Your Honours will see that at page 646, about point 9 on the page:
It is now established that Pt VII has invested the Family Court with a welfare jurisdiction that is similar to the parens patriae jurisdiction exercised by the Court of Chancery but which is freed from the preliminary requirement –
and so on. Finally, your Honours, one has, of course, the reference to P v P (1994) 181 CLR 583. I have taken your Honours to the relevant passages of that already. What one sees, then, is that the jurisdiction which the Court has held may validly be conferred on the Family Court is a jurisdiction which is one which extends to making orders with respect to the welfare of a child of a marriage, in proceedings in which a party to the marriage is a party.
GUMMOW J: Now, should we take the Full Court decision as having this effect, that orders in the terms on pages 11 and 12 of the appeal book, which are the orders you sought, were orders which, if made, would be made within jurisdiction?
MR JACKSON: Your Honour, that was the application made on behalf of the children.
GUMMOW J: Yes.
MR JACKSON: The orders that were sought on behalf of the – I am sorry.
GUMMOW J: Your orders are at 11 and 12, I think.
MR JACKSON: Yes, I am sorry. Thank you, your Honour. Your Honours, in fact the orders that were sought in the Full Court appear at page 63. I do not think there is a significant difference, but that was the situation in the Full Court. I think they are the same.
GUMMOW J: So they are to be taken as saying that it would be within power for the primary judge to make orders in those terms?
MR JACKSON: Yes, that is what seems to have been held, your Honour. Yes, that is the effect of that holding.
GUMMOW J: But were they ever made?
MR JACKSON: These orders?
GUMMOW J: Yes.
MR JACKSON: No, your Honour, because all that has happened has been that interlocutory orders have been made. I am sorry, I am not making myself clear. What I mean by that was that the decision of the Full Court was that there was jurisdiction to make these orders. They have not been made. What followed, however, was that these proceedings, or the certificate proceedings, made it apparent this case was coming to this Court.
An order had been sought at first instance from Justice Strickland in the Family Court seeking, pending the final resolution of the proceedings, that orders be made allowing the children to reside elsewhere, to put it shortly. He declined.
GUMMOW J: In which event, these orders would not be needed.
MR JACKSON: Your Honour, that is only pending the resolution of the case. He declined. The Full Court made such orders, but again they are pending the resolution of the case. If this Court decided there was no jurisdiction, I suppose back to Woomera or wherever. That would be the position.
GUMMOW J: As against that contingency, you then want the orders at 63 and 64.
MR JACKSON: Yes.
GUMMOW J: Is that what it comes to?
MR JACKSON: Yes, your Honour. That is the jurisdiction. Now, your Honours, the point – and I see the time.
GLEESON CJ: Mr Jackson, I am only asking this question for the benefit of the people in the next case. How long do you think you will require?
MR JACKSON: Your Honour, I think I will be three‑quarters of an hour.
GLEESON CJ: And, Mr Solicitor, in reply?
MR BENNETT: Fifteen to 30 minutes, your Honour.
GLEESON CJ: All right. We will say we will take the next case not before 11.00 and we will adjourn until 10.15 tomorrow morning.
AT 4.18 PM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY, 1 OCTOBER 2003
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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Standing
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