Northern Territory v GPAO

[1999] HCA 8

HIGH COURT OF AUSTRALIA

GLEESON CJ,
GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ

NORTHERN TERRITORY OF AUSTRALIA  APPELLANT

AND

G P A O (Father)  FIRST RESPONDENT

J A W (Mother)  SECOND RESPONDENT

SEPARATE REPRESENTATIVE  THIRD RESPONDENT

Northern Territory of Australia v GPAO (D172-1997) [1999] HCA 8
11 March 1999

ORDER

1. Appeal allowed.

1. Set aside Order 1 of the orders made by the Full Court of the Family Court on 8 August 1996 and in place thereof order that the question in the case stated be answered as follows:

Section 97(3) of the Community Welfare Act (NT), in its operation with respect to the subpoena issued on 23 October 1995, was not rendered inoperative by the provisions of the Family Law Act 1975 (Cth) or the Evidence Act 1995 (Cth), and was binding on the Family Court by reason of the operation of s 79 of the Judiciary Act 1903 (Cth).

1. Remit to the Full Court of the Family Court for such reconsideration as may be appropriate of the timetable with respect to submissions as to costs set out in Order 3 of its orders made on 8 August 1996.

2.

On appeal from the Family Court of Australia

Representation

T I Pauling QC, Solicitor-General for the Northern Territory and
T J Riley QC with R J Webb and D S Lisson for the appellant (instructed by Solicitor for the Northern Territory)

C R McDonald QC with G J Moloney, S M Gearin and P D McNab for the first respondent (instructed by Chapman & Associates Pty Ltd)

No appearance for the second and third respondents

Interveners:

G Griffith QC with E Willheim and D J Batt intervening on behalf of the Attorney-General for the Commonwealth (instructed by Australian Government Solicitor)

B M Selway QC with R F Gray intervening on behalf of the Attorney-General for the State of South Australia (instructed by Crown Solicitor for South Australia)

L S Katz SC intervening on behalf of the Attorney-General for the State of New South Wales (instructed by Crown Solicitor for New South Wales)

Notice:  This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Northern Territory of Australia v GPAO & Ors

Constitutional law – Federal jurisdiction – Law defining jurisdiction of federal court – Whether laws made under territories power are "laws made by the Parliament" for the purposes of s 76(ii) of the Constitution.

Constitutional law – Federal jurisdiction – Whether Family Court exercising federal jurisdiction – Judiciary Act 1903 (Cth), s 79.

Constitutional law – Inconsistency between Commonwealth and Territory laws – Whether laws incapable of concurrent operation – "Paramountcy principle".

Practice and procedure – Whether Family Court bound by Territory law – Whether Commonwealth law "otherwise provides" – Whether immunity provided for by Territory law provides a "reasonable excuse" for failure to comply with Commonwealth law – Whether obligation to produce documents excludes "public interest" privileges.

Practice and procedure – Evidence – Subpoena – Whether Evidence Act 1995 (Cth) applies to production of documents in response to a subpoena.

Words and phrases – "paramountcy principle", "federal jurisdiction", "otherwise provides", "reasonable excuse", "existing law of the Territory".

The Constitution, ss 75, 76, 77, 109, 122.
Judiciary Act 1903 (Cth), ss 79, 80.
Northern Territory (Self‑Government) Act 1978 (Cth).
Family Law Act 1975 (Cth), Pts VII (ss 65D, 65E, 69H, 69ZG), XIIIA.
Family Law Rules (Cth), O 28, r 1.
Evidence Act 1995 (Cth).
Community Welfare Act (NT), s 97(3).

1. GLEESON CJ AND GUMMOW J.   This appeal presents issues which concern the interaction between two laws made by the Parliament, the Family Law Act 1975 (Cth) ("the Family Law Act") and the Evidence Act 1995 (Cth) ("the Evidence Act"), and a law made by the Legislative Assembly of the Northern Territory of Australia, the Community Welfare Act (NT) ("the Community Welfare Act"). The appeal comes to this Court in the following way.

2. Section 94A of the Family Law Act confers upon a Full Court of the Family Court of Australia jurisdiction to hear and determine questions of law stated for its opinion by a judge of that Court in the form of a special case. An appeal from the order answering such a question lies to this Court by special leave (s 95).

3. The first respondent in this Court is the father and the second respondent the mother of a child born in 1991.  The child lives in the Northern Territory.  The separate representative of the child is the third respondent.  The first and second respondents have never married.  On 18 March 1992, a judge of the Family Court ordered that the parents have joint guardianship of the child and the mother sole custody.  Orders for supervised access were made in favour of the father.  On 16 June 1995, the mother applied to the Family Court for an order granting her sole guardianship of the child and discharging the orders for access.  In support of her application, the mother made allegations, denied by the father, of sexual abuse of the child by the father.

4. Order 28 r 1 of the Family Law Rules provides that, at the request of a party to any proceedings, the Registrar of the filing registry may issue a subpoena on behalf of the court commanding those named in the subpoena to attend before the court and then and there to produce any books, documents or things in their possession, custody or control.  On 23 October 1995, the Registrar of the Family Court at Darwin, on application of the father, issued a subpoena addressed:

   "TO:  THE MANAGER

   OF:     Child and Family Protective Services

   60 Cavenagh Street

   Darwin NT 0800".

   The subpoena ordered the addressee to attend the Family Court at Darwin to produce to the Court:

   "[a]ll files and records in relation to [the child] born 30 April 1991".

5. It is accepted that the addressee of the subpoena was an "authorized person" within the meaning of s 97(3) of the Community Welfare Act and that the "files and records" the subject of the subpoena are "documents" of the kind referred to in s 97(3). The text of s 97(3) is set out later in these reasons. On the return of the subpoena on 30 October 1995, before a judge of the Family Court (Murray J), the matter was adjourned to the next day. An application then was made that the subpoena be "vacated".

6. In these circumstances, Murray J stated a case to the Full Court presenting a question which, after amendment in the Full Court, was expressed as follows:

   "Are the provisions of s 97(3) of the Community Welfare Act (NT) inconsistent with provisions of:

   (a)     the Family Law Act 1975 (Cth); or

   (b)the Evidence Act 1995 (Cth);

   such that the provisions of s 97(3) of the Community Welfare Act 1983 (NT) are inoperative to the extent of such inconsistency?"

7. The Full Court (Nicholson CJ, Fogarty and Frederico JJ) delivered judgment on 8 August 1996[1]. Their Honours, by majority (Nicholson CJ and Frederico J; Fogarty J dissenting), answered "Yes" to the question whether the provisions of s 97(3) of the Community Welfare Act were "inconsistent" with the provisions of the Family Law Act. The majority also answered "Yes" to the question with respect to the Evidence Act[2].  Fogarty J would have answered "Yes, insofar as it relates to the adduction of evidence."[3] There was no question directed to the operation of s 79 of the Judiciary Act 1903 (Cth) ("the Judiciary Act"), although there was some discussion of the matter in the reasons for judgment.

   [1]Re Z [1996] FLC ¶92‑694; (1996) 134 FLR 40.

   [2][1996] FLC ¶92‑694 at 83,250; (1996) 134 FLR 40 at 71.

   [3][1996] FLC ¶92‑694 at 83,296; (1996) 134 FLR 40 at 131.

8. On 29 August 1996, the Full Court, constituted with the same membership, granted, pursuant to s 92 of the Family Law Act, leave to the Northern Territory of Australia to intervene. On application of the Northern Territory, which is now the appellant, special leave was granted by this Court to appeal against the order of the Full Court made on 8 August 1996. No question arises as to the competency of the institution or carriage of the appeal by a party who entered the proceeding below as an intervener. Section 92(3) of the Family Law Act deemed the Northern Territory to be a party to the proceedings with all the rights, duties and liabilities of a party.

   The Community Welfare Act

9. The long title to the Community Welfare Act states that it is:

   "[a]n Act to provide for the protection and care of children and the promotion of family welfare, and for other purposes".

   Section 97(2) imposes a penalty upon a person who, while or after ceasing to be an "authorized person", performs certain acts otherwise than in the performance of duties or in the exercise of powers or the performance of functions under the Act. The phrase "authorized person" is defined in s 4(1) as meaning a person "authorized in writing by the Minister to exercise powers and perform functions under [the] Act". The proscribed activity is the making of a record, or the disclosing or the communicating to any person, of certain information acquired in the performance of duties or in the exercise of powers or in the performance of functions under the Act. The information must be "in respect of the affairs of another person".

10. The crucial provision of s 97 is sub‑s (3). This states:

    "A person who is, or has been, an authorized person shall not, except for the purposes of this Act, be required to -

    (a)produce in a court a document that has come into his possession or under his control; or

    (b)disclose or communicate to a court any matter or thing that has come under his notice,

    in the performance of his duties or functions under this Act."

    Notwithstanding the provisions of sub‑ss (2) and (3), in the circumstances listed in sub‑s (4), an "authorized person" may disclose information or records that have come to the notice or into the possession of that person in the performance of duties or functions under the Community Welfare Act. The circumstances are identified in sub‑s (4) as follows:

    "(a)     to the person to whom the information or records relate;

    (b)      in connection with the administration of this Act;

    (c)if the Minister certifies that it is necessary in the public interest that information should be disclosed - to such person as the Minister directs;

    (d)  to a prescribed authority or person;

    (e)to a person who, in the opinion of the Minister, is expressly or impliedly authorized by the person to whom the information relates to obtain it; or

    (f)subject to the approval of the Minister - to a person engaged in a bona fide research programme where the person has given an undertaking in writing to the Minister to preserve the identity of and confidentiality relating to individual persons to whom the information and records relate".

    An authority or person to whom information is disclosed under the provisions of sub‑s (4) and any person or employee under the control of that authority or person is, in respect of that information, subject to the same rights, privileges, obligations and liabilities under sub‑ss (2) and (3) as if an "authorized person" who had acquired information and records in the performance of duties as such a person.  This is the effect of sub‑s (5).

11. It will be observed that, whilst s 97(2) imposes an obligation upon authorised persons and those who have ceased to be authorised persons and attaches a penal sanction to that obligation, s 97(3) is differently cast. Unlike s 97(2), s 97(3) does not attract with respect to the Family Law Act the general rule of construction which was expressed in P v P[4] by Mason CJ, Deane, Toohey and Gaudron JJ.  It is that[5]:

    "[a] law of the Parliament conferring jurisdiction upon a federal court in general terms will, in the absence of a clear legislative intent to the contrary, ordinarily be construed as not intended to confer jurisdiction to make an order authorizing or requiring the doing of an act which is specifically prohibited and rendered criminal by the ordinary criminal law of the State or Territory in which the act would be done."

    Rather, in pars (a) and (b), s 97(3) provides an immunity or a sufficient answer to what otherwise would be a requirement laid upon those who are or have been authorised persons. Such a person shall not, except for the purposes of the Community Welfare Act, be required to "produce" documents "in a court" (s 97(3)(a)).

    [4](1994) 181 CLR 583.

    [5](1994) 181 CLR 583 at 602.

12. The subpoena required the production to the Family Court by an authorised person of documents in respect of which s 97(3) of the Community Welfare Act stipulated that that person was not to be required to produce the documents "in a court" except for the purposes of the Community Welfare Act (s 97(3)). It is true that, notwithstanding s 97(3), the authorised person was at liberty to disclose the documents in question in the circumstances detailed in s 97(4). However, it is not suggested that any of pars (a)‑(f) of s 97(4) applied.

13. Provisions of Pt XIIIA (ss 112AA‑112AP) of the Family Law Act bear upon the question of the accountability of a party who refuses to produce documents required by subpoena issued out of the Family Court where the ground for the refusal is the immunity provided by s 97(3)(a) of the Community Welfare Act from the requirement to produce documents in a court. Part XIIIA is headed "Sanctions for Failure to Comply with Orders and Contempt of Court". Section 112AD provides for sanctions for contraventions of certain orders made under the Family Law Act. The phrase "order under this Act" is used in s 112AD in the sense given in the definition in s 112AA. This includes (par (ca)) "a subpoena issued under the Rules of Court".

14. However, the authority of the Family Court under s 112AD is conditioned upon its satisfaction that a person has contravened the order "without reasonable excuse". The circumstances in which a person may be taken to have had, for the purposes of Pt XIIIA, a reasonable excuse include but are not limited to those specified in s 112AC (s 112AC(1)). The submission upon the operation of s 79 of the Judiciary Act included the proposition that the immunity provided by s 97(3)(a) of the Community Welfare Act provides a reasonable excuse for a failure to comply with the requirement of a subpoena issued under the Rules of Court that the documents be produced to the Family Court. We return to this matter later in these reasons.

    The Evidence Act

15. The issue with respect to the Evidence Act may be disposed of at this stage. The issues concerning the Family Law Act require more detailed consideration.

16. The Evidence Act applies to proceedings in the Family Court, as a court created by the Parliament which is not the Supreme Court of a Territory. This is the effect of s 4(1) of the Evidence Act and the definition in the Dictionary of "federal court". However, the Evidence Act is concerned with the adducing of evidence (Ch 2), the admissibility of evidence (Ch 3), proof (Ch 4) and certain ancillary matters (Ch 5). It does not deal with the obligations of a party to whom an order in the nature of a subpoena is addressed to produce documents to the court in question. Nor does the Evidence Act deal with the grant of leave by the court to inspect or otherwise make use of documents which have been produced in answer to a subpoena.

17. This litigation arose from the issue of a subpoena requiring production of documents to the Family Court. It is unnecessary in this case to consider the question of the consequences of the provisions of the Evidence Act, if any, in relation to the common law principles which operate in this field. Paragraph (a) of s 97(3) of the Community Welfare Act is directed to situations which include the production of documents in response to a subpoena, yet this is a field upon which the Evidence Act does not enter. There is no question of s 97(3) in its application to the production of documents to the Family Court in response to the subpoena issued on 23 October 1995 being rendered inoperative by reason of any "inconsistency" with the Evidence Act.

18. It follows that the answer to par (b) of the question should have been in the negative.

    The jurisdiction of the Family Court

19. The Family Court is created by the Family Law Act as a superior court of record (s 21) and the Court may sit at any place in Australia (s 27).

20. An appreciation of the source and content of the jurisdiction of the Family Court is a necessary starting point for an understanding of the remaining issues before this Court.

21. The question before the Full Court referred simply to "the provisions of ... the Family Law Act 1975 (Cth)". It is common ground that the source of the jurisdiction exercised by the Family Court is to be found in the text of the statute as amended by the Family Law Reform Act 1995 (Cth) ("the 1995 Act"). The 1995 Act came into operation on 11 June 1996. Section 31 thereof repealed Pt VII (ss 60-70F) which had been headed "Children" and inserted a new Pt VII (ss 60A‑70Q) also headed "Children". The scheme of this new Pt VII, as emphasised by the various headings referred to below, is to provide a legislative regime which covers a field marked out by the use of available sources of constitutional power.

22. Division 12 (ss 69A‑69ZK) is headed "Proceedings and jurisdiction" and comprises subdivs A‑F. The heading to subdiv C (ss 69G‑69N) is "Jurisdiction of courts". Section 69H(1) confers jurisdiction on the Family Court "in relation to matters arising under this Part". Section 69M provides that the jurisdiction conferred by Div 12 is in addition to any jurisdiction conferred apart from Div 12[6]. Proceedings may be instituted in relation to a child only if the child is present in Australia or has the other sufficient connections with Australia specified in s 69E. Subdivision F (ss 69ZE‑69ZK) is headed "Extension, application and additional operation of Part". Section 69ZG states that Pt VII "applies in and in relation to the Territories". Sections 69H(1) and 69ZG are provisions of central importance for this case.

    [6]Section 31(1)(c) of the Family Law Act confers jurisdiction on the Family Court with respect to matters arising under a law of a Territory other than the Northern Territory concerning the rights and status of ex‑nuptial children and their parental relationships. The Court was informed that, in addition to the exclusion of the Northern Territory from its application, this provision had not been proclaimed.

23. Division 6 (ss 65A‑65ZD) is headed "Parenting orders other than child maintenance orders". It comprises subdivs A‑E. The heading to subdiv B thereof (ss 65C‑65L) is "Applying for and making parenting orders". Sections 65D and 65E are of considerable importance for the application of what is identified as the "paramountcy principle" in litigation such as that out of which this appeal has arisen. These sections state:

    "65D (1)In proceedings for a parenting order, the court may, subject to this Division, make such parenting order as it thinks proper.

    (2)Without limiting the generality of subsection (1) and subject to this Division, a court may make a parenting order that discharges, varies, suspends or revives some or all of an earlier parenting order.

    65EIn deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration."

    A parenting order may deal with any one or more of the person or persons with whom a child is to live, contact between a child and another person or persons, maintenance, and any other aspect of parental responsibility for a child (s 64B(2)).

24. Division 10 (ss 68D‑68M) is headed "The best interests of children and the representation of children" and subdiv B (ss 68E‑68K) contains further provisions specifying what must be considered by the court in such a determination of the best interests of the child. In particular, s 68E(1) states that these considerations apply to the making of parenting orders under s 65D.

1. Section 65C states that a parenting order in relation to a child may be applied for by either or both of a child's parents, or the child, or any other person concerned with the care, welfare or development of the child. There is no requirement that the child be the child of a marriage within the meaning of the decisions expounding the reach of the power of the Parliament to make laws under s 51(xxi) of the Constitution with respect to "Marriage". However, the effect of the provisions for extension, application and additional operation of Pt VII, made by subdiv F (ss 69ZE‑69ZK) of Div 12, is to confine provisions such as s 65C in certain circumstances. This is achieved by identifying as a criterion the continuation of references of power by the Parliaments of the States under s 51(xxxvii) of the Constitution (ss 69ZE and 69ZF) and by reference to the limitations attending the marriage power (s 69ZH). Section 69ZJ should also be noted. This is an investment of jurisdiction pursuant to s 77(i) and s 75(iv) of the Constitution. The section states:

   "In addition to the jurisdiction that, apart from this section, is invested in or conferred on a court under this Part, the court is invested with jurisdiction or jurisdiction is conferred on the court, as the case requires, in matters between residents of different States, being matters with respect to:

   (a)     the maintenance of children and the payment of expenses in relation to children or child bearing; or

   (b)parental responsibility in relation to children."

2. In the present case, it is not suggested that the parents are residents of different States. Rather, the child and, it appears, the parents live in the Northern Territory. The child is not the child of a marriage, so as to attract an exercise of the legislative powers under ss 51(xxi), 76(ii) and 77(i) of the Constitution. The result is that a parenting order may be made by the Family Court in respect of the child as a consequence of the statement in s 69ZG that Pt VII applies in and in relation to the Northern Territory. The foundation of the jurisdiction of the Family Court thus is to be taken as having been that operation of Pt VII which it has in its character as a law made by the Parliament for the government of the Northern Territory, within the meaning of s 122 of the Constitution.

3. The Family Court, it is common ground, is a federal court created by the Parliament within the meaning of s 71 of the Constitution. It is a federal court whose jurisdiction may be defined by the Parliament, within the meaning of s 77(i) of the Constitution, with respect to any of the matters mentioned in s 75 and s 76. Section 76(ii) speaks of matters "[a]rising under any laws made by the Parliament".

4. The Northern Territory submits that ss 69H(1) and 69ZG are such laws. It further submits that this had the result that (i) in issuing the subpoena in question and in dealing with the matter on the return of the subpoena, the Family Court was exercising jurisdiction in a matter arising under a law made by the Parliament, namely the Family Law Act; (ii) this was "federal jurisdiction" within the meaning of s 79 of the Judiciary Act; and (iii) s 79 operated to "pick up" s 97(3) of the Community Welfare Act as a surrogate law of the Commonwealth[7].

   [7]The expression "surrogate Commonwealth law", with respect to the operation of s 79, was used in The Commonwealth v Mewett (1997) 191 CLR 471 at 514, 554.

5. Before deciding whether these submissions should be accepted, it is convenient first to identify the body of law applicable by the Family Court in the proceedings before it and the present constitutional status of the Northern Territory and laws made by its legislature.

   The applicable body of law

6. The reasoning in several of the judgments in The Commonwealth v Mewett[8] indicates that a convenient and perhaps the necessary starting point is the common law in Australia. In that regard, s 80 of the Judiciary Act states:

   "So far as the laws of the Commonwealth are not applicable or so far as their provisions are insufficient to carry them into effect, or to provide adequate remedies or punishment, the common law in Australia as modified by the Constitution and by the statute law in force in the State or Territory in which the Court in which the jurisdiction is exercised is held shall, so far as it is applicable and not inconsistent with the Constitution and the laws of the Commonwealth, govern all Courts exercising federal jurisdiction in the exercise of their jurisdiction in civil and criminal matters." (emphasis added)

   The words emphasised were inserted by s 15 of the Judiciary Amendment Act (No 2) 1979 (Cth) ("the 1979 Amendment Act"). Section 80 directs all courts exercising federal jurisdiction where they "shall go for the substantive law"[9] and is supplemented by s 79.

   [8](1997) 191 CLR 471 at 525, 554.

   [9]South Australia v The Commonwealth (1962) 108 CLR 130 at 140.

7. The Judiciary Act extends (s 3A) "to all the Territories", not merely to those internal territories (and Norfolk Island) which enjoy a measure of representative government.

8. Section 80 applies so far as the laws of the Commonwealth are not applicable or their provisions are insufficient to carry them into effect or to provide adequate remedies. One such law of the Commonwealth which may be applicable is s 79 of the Judiciary Act. This was amended by s 14 of the 1979 Amendment Act by adding "or Territory" after "State", wherever occurring. In its amended form, s 79 states:

   "The laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable."

9. It is clear that, were it not for a provision such as s 79, a law of a State with respect to such matters as the limitation of actions could not directly and of its own force operate in relation to a claim arising under a law of the Commonwealth[10]. In the present litigation, the Parliament, by extending the scope of s 79 of the Judiciary Act, may have rendered s 97 of the Community Welfare Act a surrogate federal law to operate beside Pt VII of the Family Law Act.

   [10]John Robertson & Co Ltd v Ferguson Transformers Pty Ltd (1973) 129 CLR 65 at 79, 84, 87, 93.

10. The term "court" is not defined in the Community Welfare Act. Ordinarily, it would be read as identifying the courts of the Northern Territory itself. However, the authorities discussed by Gibbs J in John Robertson & Co Ltd v Ferguson Transformers Pty Ltd[11] show that the circumstance that s 97(3)(a) was intended by the Northern Territory legislature to apply in Northern Territory courts does not render s 79 inapplicable to courts which are exercising federal jurisdiction. The provisions of the Community Welfare Act may be "picked up" by s 79 in the Family Court if the other criteria for the operation of s 79 are satisfied.

    [11](1973) 129 CLR 65 at 87‑88; cf Anderson v Eric Anderson Radio & TV Pty Ltd (1965) 114 CLR 20 at 24, 37.

    The issues

11. At this stage, four further issues arise. The first is the meaning of the term "federal jurisdiction". This appears in s 79 and s 80 and in various other provisions of the Judiciary Act but it is not defined therein. However, it has been accepted that the exercise by this Court or any other federal court of jurisdiction with respect to any of the matters of the description in s 75 and s 76 of the Constitution is the exercise of federal jurisdiction within the meaning of s 79[12].

    [12]See the remarks of Mason J in John Robertson & Co Ltd v Ferguson Transformers Pty Ltd (1973) 129 CLR 65 at 93‑94. Section 79 also applies to State courts exercising federal jurisdiction with which they have been invested by a law made by the Parliament as provided in s 77(iii) of the Constitution: De Vos v Daly (1947) 73 CLR 509 at 514, 517‑518, 520, 522.

12. The second issue is related to the first and is as follows. The Family Court was exercising jurisdiction with respect to a matter arising under a law made by the Parliament, namely Pt VII of the Family Law Act. Does the circumstance that the combination of s 69H(1) and s 69ZG is supported not by any head of power in s 51 of the Constitution, but rather by s 122 thereof, deny to the jurisdiction exercised by the Family Court in this case the character of federal jurisdiction?

13. The third issue is whether, on the footing that the Family Court was exercising federal jurisdiction, s 79 did not apply and s 97(3) of the Community Welfare Act did not bind the Family Court because a law of the Commonwealth, namely the Family Law Act, "otherwise provide[s]" within the meaning of s 79.

14. The fourth issue is, in a sense, the threshold issue and requires detailed consideration before returning to the other issues. It arises in the following way. A State law is not applied by s 79 in circumstances where it could have no direct application by reason of its invalidity for inconsistency with an existing law of the Commonwealth, within the meaning of s 109 of the Constitution[13]. Likewise, a law of the Territory which is invalid or inoperative by reason of "inconsistency" with a law of the Commonwealth is not restored to life through the medium of s 79 of the Judiciary Act. The question then is whether s 97(3) of the Community Welfare Act was rendered ineffective by reason of "inconsistency" with the provisions of Pt VII of the Family Law Act.

    [13]The Commonwealth v Mewett (1997) 191 CLR 471 at 556; cf as to the operation of s 64 of the Judiciary Act, Dao v Australian Postal Commission (1987) 162 CLR 317 at 331‑332; Deputy Commissioner of Taxation v Moorebank Pty Ltd (1988) 165 CLR 55 at 63‑64.

15. To reach an answer, it is necessary first to refer to the present constitutional status of the Northern Territory and the laws made by its legislature.

    The Northern Territory

16. The status of the Northern Territory before the commencement of the Northern Territory (Self‑Government) Act 1978 (Cth) ("the Self‑Government Act") was explained by Dawson J in the following passage from his judgment in Kruger v The Commonwealth[14]:

    "Under s 122 of the Constitution, the parliament may make laws 'for the government of any Territory surrendered by any State to and accepted by the Commonwealth, or of any Territory placed by the Queen under the authority of and accepted by the Commonwealth, or otherwise acquired by the Commonwealth'. The Northern Territory was surrendered to and accepted by the Commonwealth pursuant to an agreement with South Australia in 1907. That agreement was ratified and approved by the Northern Territory Acceptance Act 1910 (Cth). Pursuant to s 111 of the Constitution, the Northern Territory thereupon became, and remains, 'subject to the exclusive jurisdiction of the Commonwealth'.

    Upon acquiring exclusive jurisdiction over the Northern Territory, the Commonwealth enacted the Northern Territory (Administration) Act 1910 (Cth). Section 13(1) of that Act empowered the Governor‑General to make Ordinances having the force of law in the Northern Territory. Under s 13(2) and (3) Ordinances were required to be laid before the Houses of Parliament, either of which had the power of disallowance. Until 1947, the powers of the Governor‑General remained essentially unchanged, although under the Northern Australia Act 1926 (Cth) the Northern Territory was divided into two territories (known as North and Central Australia) which were separately administered. In 1947 the Northern Territory (Administration) Act 1947 (Cth) amended the earlier Act of the same name to create a legislative council for the Northern Territory. A new section, s 4U, provided that '[s]ubject to this Act, the Council may make Ordinances for the peace, order and good government of the Territory'. Further sections were added which provided that such Ordinances had no effect until assented to by the Administrator of the Northern Territory according to his discretion (s 4V), and that the Governor‑General had power to disallow any Ordinance within six months of the Administrator's assent (s 4W)."

    [14](1997) 190 CLR 1 at 49‑50.

17. The question arose, with respect to a comparable power to make Ordinances for the Australian Capital Territory under s 12 of the Seat of Government (Administration) Act 1910 (Cth) ("the Seat of Government Act"), as to whether this power might "be exercised in a manner incompatible with a law made by Parliament itself"[15].  Brennan J dealt with the matter when giving the leading judgment in the Full Court of the Federal Court in Webster v McIntosh[16].  His Honour said[17]:

    "Where one of the laws is an Act of the Parliament and the other is an Ordinance of the Australian Capital Territory made under s 12 of the [Seat of Government Act], the relevant question is not whether the Act can be so construed as to leave room for the operation of the Ordinance, but whether the Ordinance is repugnant to the Act. The power to make Ordinances conferred by s 12 does not authorize the making of an Ordinance which is repugnant to an Act of the Parliament[18], and s 12 does not sustain an Ordinance if it becomes repugnant to a later Act of the Parliament. To the extent to which an Ordinance is repugnant to an Act, the Ordinance has no operation. It is not now material to discuss whether repugnancy works this result by denying power to make or sustain the Ordinance or by attributing an overriding effect to the Act. In the present case, all that needs to be ascertained is whether the Ordinance is inconsistent with and thus repugnant to the Act in the material respect."

    [15]Federal Capital Commission v Laristan Building and Investment Co Pty Ltd (1929) 42 CLR 582 at 588.

    [16](1980) 49 FLR 317; 32 ALR 603.

    [17](1980) 49 FLR 317 at 320‑321; 32 ALR 603 at 605‑606.

    [18]Federal Capital Commission v Laristan Building and Investment Co Pty Ltd (1929) 42 CLR 582 at 588.

18. The legal regime in force in the Northern Territory assumed a different dimension with the commencement of the Self‑Government Act. The Northern Territory of Australia is established by s 5 of the Self‑Government Act as a body politic under the Crown. The Self‑Government Act is a law made by the Parliament for the government of the Northern Territory in exercise of the power conferred by s 122 of the Constitution. It is an example of the use of s 122 to provide for "the course of constitutional development"[19] of a territory.

    [19]Western Australia v The Commonwealth (1975) 134 CLR 201 at 270.

19. The Self‑Government Act provides (s 6) that, subject to that statute, the Legislative Assembly of the Northern Territory of Australia has power, with the assent of the Administrator or the Governor‑General, as provided by the Self‑Government Act, "to make laws for the peace, order and good government of the Territory".

20. Section 57(1) of the Self‑Government Act deals with continuing status of the previous legal regime in the Northern Territory. The sub‑section states:

    "Subject to this Act, on and after the commencing date, all existing laws of the Territory have the same operation as they would have had if this Act had not been enacted, subject to alteration or repeal by or under enactment."

    The term "enactment" in s 57(1) is so defined in s 4(1) as to mean a law passed by the Legislative Assembly of the Northern Territory or an Ordinance continued in force by s 57(1)[20].

    [20]The structure of the Self‑Government Act was more fully considered in Newcrest Mining (WA) Ltd v The Commonwealth (1997) 190 CLR 513 at 623‑630 and Attorney‑General (NT) v Hand (1989) 25 FCR 345 at 363‑365.

21. The phrase "existing law of the Territory" is so defined as not to include Acts of the Parliament in force in the Northern Territory among those laws which the Legislative Assembly may alter or repeal.  An "existing law of the Territory" means (s 57(3)(b)) an Ordinance made under the Northern Territory (Administration) Act 1910 (Cth) or an instrument under such an Ordinance. The phrase also means (s 57(3)(a)) any law in force in the Territory but with two exclusions. The first is "an Act". This phrase identifies statutes of the Parliament[21].  The second is an instrument made under an Act but being neither an Ordinance nor an instrument made under an Ordinance itself made under the 1910 statute.

    [21]Acts Interpretation Act 1901 (Cth) ("the Interpretation Act"), s 38(1); R v Kearney; Ex parte Japanangka (1984) 158 CLR 395 at 403.

22. The result is that the definition of "existing law of the Territory" in s 57(3) excludes from the power of alteration or repeal given to the Legislative Assembly both (i) any Act of the Parliament in force in the Territory immediately before the commencing date; and (ii) any instrument made under such a statute, but does not exclude an Ordinance made under the 1910 Act or an instrument made under such an Ordinance.  Such Ordinances and instruments made thereunder are within the concept of "existing law of the Territory" and thus may be altered or repealed by or under a law made by the Legislative Assembly.

23. The particular law made by the Parliament with which this litigation is concerned is the 1995 Act, which inserted the new Pt VII of the Family Law Act. It is true that s 15 of the Interpretation Act provides that, unless the contrary intention appears, every statute amending another Act shall "be construed with such other Act and as part thereof". However, in its present form, the Family Law Act was not a law in force in the Territory immediately before the commencing date of the Self‑Government Act.

24. In its form at that date, the Family Law Act was not subject to alteration or repeal by or under an enactment of the Legislative Assembly. The power of the Legislative Assembly, conferred by s 6 of the Self‑Government Act, to make laws for the peace, order and good government of the Territory, is expressed to be "[s]ubject to this Act". Therefore, s 6 is subject to the limitation found in s 57 upon the power to alter or repeal laws in force in the Territory immediately before the commencing date. Plainly, it was within the competence of the Parliament in legislating under s 122 of the Constitution "for the government" of the Northern Territory to provide in this way for its constitutional development.

25. It is consistent with the imposition of this limitation upon the power of the Legislative Assembly with respect to pre‑existing laws of the Commonwealth that no provision is made in the Self‑Government Act with respect to the alteration or repeal by the Legislative Assembly of laws subsequently enacted by the Parliament of the Commonwealth. The phrase "to make laws for the peace, order and good government of the Territory" in s 6 of the Self‑Government Act should not be construed as conferring such an extensive form of authority.

26. This appeal is concerned with a different aspect of the interrelation between Commonwealth and Territory legislation.  The issue here is whether, by reason of the 1995 Act, the continued operation of the law made by the Territory in 1983 has been limited so that it has an application narrower than would otherwise be the case.

27. In University of Wollongong v Metwally[22], Mason J said:

    "Inconsistency or repugnancy is a long‑standing concept in the field of statutory law.  Where the provisions of two statutes are in conflict, so much so that they cannot be reconciled one with the other, there is a consequential need to resolve the problem created by the conflict.  In the case of conflicting statutes enacted by one legislature the problem is resolved by regarding the later statute as impliedly repealing the earlier statute to the extent of the inconsistency.  In the case of conflicting statutes, one enacted by the Imperial Parliament, the other by a colonial legislature, the problem was resolved in favour of the primacy of the Imperial statute, even if it be the first in time".

    [22](1984) 158 CLR 447 at 463. See also Attorney-General (NT) v Hand (1989) 25 FCR 345 at 361‑362.

1. A related issue may arise where statute confers upon the executive branch of government the authority to make rules and regulations, generally described as "delegated legislation". The ambit of the authority so conferred is spelled out by the statute, often in terms that the delegated legislation must not be "inconsistent" with the provisions of the statute itself. An example is the expression of the regulation‑making power conferred by s 125 of the Family Law Act itself. The regulations so made must not be "inconsistent" with the Family Law Act. In this sphere, any question of "inconsistency" does not arise as a consequence of the exercise of law‑making power enjoyed by two legislative bodies. There is but one legislature involved and the failure of delegated legislation to operate fully in its terms is analysed in terms of ultra vires and of action in excess of the authority delegated by the legislature. Section 46 of the Interpretation Act makes provision for the "reading down" of a delegated legislation to preserve its operation to the extent to which it is not in excess of power[23].

   [23]cf Harrington v Lowe (1996) 190 CLR 311 at 326‑328.

2. This appeal concerns the impact upon a law made by the Legislative Assembly of the Northern Territory of a law of the Commonwealth, in force in that Territory, and enacted after the territorial law. This situation differs both from those described above and from the regime established by s 109 of the Constitution. Section 109 deals with laws made by the legislatures of the Commonwealth and the States, each having its place in the federal structure allotted by the text of the Constitution itself. The decided cases show "two distinct bases for the conclusion of inconsistency within the meaning of s 109", namely "a textual collision" and the manifestation of an intention that the law of the Commonwealth be the exclusive law on a topic "both for what it forbids and what it allows"[24]. The question raised by s 109 is one "not between powers, but between laws made under powers"[25]. The terms of s 109 are not addressed to the relationship between laws of the Commonwealth and those enacted by legislatures in the territories[26].

   [24]Miller v Miller (1978) 141 CLR 269 at 275.

   [25]O'Sullivan v Noarlunga Meat Ltd (1956) 95 CLR 177 at 183 (PC); [1957] AC 1 at 25. See also R v Winneke; Ex parte Gallagher (1982) 152 CLR 211 at 216.

   [26]University of Wollongong v Metwally (1984) 158 CLR 447 at 464; cf P v P (1994) 181 CLR 583 at 602‑603.

3. The Self‑Government Act, which gives life to and sustains the Legislative Assembly and the laws made by it, is a law of the Commonwealth and, as such, itself is subject to express or implied repeal or amendment by subsequent Commonwealth laws[27]. In addition, a later law of the Commonwealth may expressly override an existing law made by the Legislative Assembly of the Northern Territory. Such a later law of the Commonwealth is a law made for the government of this Territory within the meaning of s 122 of the Constitution. The Euthanasia Laws Act 1997 (Cth) took two steps. It both removed the power of the Legislative Assembly otherwise conferred by s 6 of the Self‑Government Act to make laws permitting euthanasia and provided that the enactment of the Rights of the Terminally Ill Act (NT) had no force or effect as a law of the Territory, except as regards the lawfulness or validity of anything done in accordance with it prior to the commencement of the Commonwealth law.

   [27]See Kartinyeri v The Commonwealth (1998) 72 ALJR 722 at 727‑728, 740‑741; 152 ALR 540 at 547, 564‑565.

4. Part VII of the Family Law Act contains no express provision bearing upon its relationship with s 6 of the Self‑Government Act or with earlier laws made by the legislature of the Northern Territory. The question then is whether, by necessary implication, the 1995 Act denies full effect to s 97(3) of the Community Welfare Act by denying thereafter the power of the Legislative Assembly to "sustain"[28] that provision or by the operation of the 1995 Act with an overriding effect upon the Community Welfare Act.

   [28]The word used by Brennan J in Webster v McIntosh (1980) 49 FLR 317 at 320‑321; 32 ALR 603 at 606.

5. Since Lamshed v Lake[29], it has been settled that s 109 of the Constitution gives paramountcy to laws made under s 122 over inconsistent State laws. Further, as Dixon CJ pointed out in that case[30], many laws made by the Parliament in exercise of powers conferred by s 51 of the Constitution operate generally throughout Australia, including the territories, not merely within the areas of or by reference to acts, matters or things connected with the States.

   [29](1958) 99 CLR 132.

   [30](1958) 99 CLR 132 at 143.

6. There may be discerned in a law which is of general application throughout the nation and is made by the Parliament in exercise of a power conferred by s 51 of the Constitution the legislative intention to make exhaustive or exclusive provision on the subject with which it deals. Section 109 of the Constitution then will apply on the footing that, "when the Parliament appears to have intended that the Federal law shall be a complete statement of the law governing a particular relation or thing ... the operation of the Federal law would be impaired if the State law were allowed to affect the matter at all"[31].  In such a case, it is to be expected also that this field will be covered with respect to the territories.  For example, one would be slow to attribute to the Parliament the intention that a law with respect to defence would occupy two fields and, in that sense, operate differentially across Australia, or that a law with respect to marriage would segregate the population by a criterion of residence in a territory rather than elsewhere in Australia[32].

   [31]Stock Motor Ploughs Ltd v Forsyth (1932) 48 CLR 128 at 136.

   [32]cf s 117 of the Constitution which fixes upon residence in one State rather than another State.

7. The same expectation as to legislative intention arises where the power of the Parliament to enact legislation, such as Pt VII of the Family Law Act, is drawn from several sources, including s 122, but the scheme of the legislation is that it operates exclusively across the field it covers, whether in the States or the territories.

8. Different considerations may apply where the law made by the Parliament, whatever the constitutional source of authority, does not evince an intention to cover the relevant field.  In such cases, one would expect greater scope for the concurrent operation of territorial laws.  This would correspond with the situation respecting State laws, if narrower notions of textual collision or direct inconsistency and repugnancy be applied.  Those notions apply in cases such as those where two laws may make "contradictory provision upon the same topic, making it impossible for both laws to be obeyed", as Mason J put it in R v Credit Tribunal; Ex parte General Motors Acceptance Corporation[33], or one law, as Dixon J said in Stock Motor Ploughs Ltd v Forsyth[34], varies, detracts from or impairs the other.

   [33](1977) 137 CLR 545 at 563.

   [34](1932) 48 CLR 128 at 136.

9. Section 122 of the Constitution supports the stipulation by the Parliament, in the law by which a territorial legislature is established, of the criteria which determine concurrent operation of territorial laws and other laws which are made by the Parliament and are in force in the Territory concerned. Section 28 of the Australian Capital Territory (Self‑Government) Act 1988 (Cth) ("the ACT Self‑Government Act") is an example. Section 8 thereof establishes the Legislative Assembly for the Australian Capital Territory and s 22 confers upon that body the power to enact laws for the peace, order and good government of that Territory. By s 28, a provision of a law made by the Assembly has no effect to the extent that it is inconsistent with a law in force in the Australian Capital Territory, not being an enactment of the Assembly or a subordinate law. However, such a provision "shall be taken to be consistent with such a law to the extent that it is capable of operating concurrently with that law" (s 28(1))[35]. It will be apparent that s 28 operates not as a denial of power otherwise conferred by s 8, but as a denial of effect to a law so made "to the extent" of its inconsistency. To that extent the analogy with s 109 will be apparent. However, the criterion for inconsistency - incapacity of concurrent operation - is narrower than that which applies under s 109, where the federal law evinces an intention to make exhaustive or exclusive provision upon a topic within the legislative power of the Commonwealth.

   [35]The text of s 28 of the ACT Self‑Government Act states:

   "(1)  A provision of an enactment has no effect to the extent that it is inconsistent with a law defined by subsection (2), but such a provision shall be taken to be consistent with such a law to the extent that it is capable of operating concurrently with that law.

   (2)   In this section:

   'law' means:

   (a)a law in force in the Territory (other than an enactment or a subordinate law); or

   (b)an award, order or determination, or any other instrument of a legislative character, made under a law falling within paragraph (a)."

   The term "enactment" is defined in s 3 as meaning:

   "(a)a law (however described or entitled) made by the Assembly under this Act; or

   (b)a law, or part of a law, that is an enactment because of section 34".

   Section 34 provides that certain laws, other than laws of the Commonwealth, which were in force in the Territory immediately before the commencement of the ACT Self‑Government Act shall be taken to be an enactment.

10. There is no provision in the Self‑Government Act which corresponds to s 28. In a case such as the present, the task is that indicated above. It is to ascertain whether it is necessarily implied by the enactment, in the 1995 Act, of Pt VII of the Family Law Act that a law such as s 97(3) of the Community Welfare Act has a narrower operation than would otherwise be the case.

11. The majority in the Full Court of the Family Court gave overriding effect to what they perceived to be the adoption in Pt VII of the "paramountcy principle".  To this we now turn.

    The paramountcy principle

12. In M v M[36], Marion's Case[37], P v P[38] and ZP v PS[39], this Court considered the jurisdiction conferred upon the Family Court by the previous Pt VII of the Family Law Act. In ZP v PS[40], Mason CJ, Toohey and McHugh JJ observed that it was established by Marion's Case and by P v P that Pt VII invested the Family Court with a welfare jurisdiction which was similar to the parens patriae jurisdiction exercised by the Court of Chancery but which was freed from the preliminary requirement of a wardship order.  Their Honours also pointed out that in the exercise of the parens patriae jurisdiction the Court of Chancery had always been guided by the principle that the welfare of the minor was the first and paramount consideration.

    [36](1988) 166 CLR 69.

    [37]Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218.

    [38](1994) 181 CLR 583.

    [39](1994) 181 CLR 639.

    [40](1994) 181 CLR 639 at 646‑647. See also De L v Director‑General, NSW Department of Community Services (1996) 187 CLR 640 at 657‑658.

13. The history of this principle is examined in the speech of Lord Guest in J v C[41].  It developed as a recognition of the welfare of an infant as a "first and paramount consideration" to which other considerations, such as the claims of a father or a mother, were subordinate.  Section 1 of the Guardianship of Infants Act 1925 (UK) gave legislative recognition to the rule by stipulating that a court should "regard the welfare of the infant as the first and paramount consideration".

    [41][1970] AC 668 at 692‑700.

14. This important and salutary principle of substantive law, adopted by courts exercising parens patriae jurisdiction for more than a century, was not applied in an adjectival vacuum, although its identification of the principal issue to be tried had important practical consequences for the application of the rules of procedure and evidence, especially where there was a discretion to be exercised, where competing interests were to be weighed in the balance, or where there was a question of dispensing with strict compliance with the ordinary rules.

15. In M v M, Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ said[42]:

    "In proceedings under Pt VII of the [Family Law] Act in relation to a child, the court is enjoined to 'regard the welfare of the child as the paramount consideration': s 60D. The paramountcy of this consideration in proceedings for custody or access is preserved by s 64(1). The consequence is that the ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child." (emphasis added)

    [42](1988) 166 CLR 69 at 75‑76.

16. The reference by their Honours to "the ultimate and paramount issue" is of present significance in the construction of Pt VII as it now stands. The text of ss 65D and 65E is set out earlier in these reasons. In particular, s 65E is directed to the final stage of the exercise by the court of its jurisdiction in proceedings for a parenting order. It states that a court, "[i]n deciding whether to make a particular parenting order in relation to a child", must have regard to the best interests of that child as the paramount consideration. The phrase quoted from s 65E further elucidates the scope of the words "in proceedings" found in the legislation as it stood when considered in M v M.

17. Section 65E identifies the issue in the case. In any kind of litigation, the formulation of the ultimate issue may have an important influence upon the practical operation of the adjectival rules which apply to such litigation. It has long been recognised that the paramountcy principle has such an influence in proceedings concerning the welfare of children. However, the question in the present case concerns its effect, if any, upon a specific statutory provision which is itself aimed at protecting the interests of children by securing confidentiality of information.

18. The Evidence Act applies to the adducing of evidence in the Family Court, as indicated earlier in these reasons. Further, certain particular provisions in this respect are made by Pt XI (ss 97‑102B) of the Family Law Act itself. Section 102A places restrictions upon the examination of children and sub‑s (4) thereof provides that, in proceedings under the Family Law Act, a court, in certain circumstances, may admit evidence which is otherwise inadmissible. Section 100A provides that evidence of a representation made by a child about a matter that is relevant to the welfare of that child or another child and which otherwise would be inadmissible as hearsay is not solely for that reason inadmissible in any proceedings under Pt VII. In addition, in subdiv D (ss 67Z‑67ZB) of Div 8 of Pt VII, special provisions are made with respect to the treatment of allegations of child abuse. Finally, s 19N renders inadmissible in any court certain admissions made at mediation meetings and counselling conferences. In Centacare Central Queensland v G and K[43], the Full Court of the Family Court held, in our view correctly, that s 65E does not operate upon s 19N so as to allow the admission of evidence contrary to its terms.

    [43][1998] FLC ¶92‑821 at 85,341.

19. However, the gravamen of the reasoning of the majority in the Full Court, as expressed in several of the decisions to which they referred, is that references in Pt VII to the welfare of children as the paramount consideration[44] are to be understood as conferring upon the relevant court power to ensure that the rules of procedure and evidence which would otherwise apply are so adapted that those rules themselves serve and further that paramount consideration[45].  In Reynolds v Kilpatrick[46], the corollary was said to be:

    "[I]f a court exercising jurisdiction under [Pt VII] was to conclude that there existed evidence which, apart from the operation of a State or Territory Statute, would be available to it and which would better assist it to reach a decision that would 'best promote and protect the interests of the child', the court would be entitled to order that such evidence be made available to it."

    A further corollary would be that State or Territory law would not be "picked up" by s 79 of the Judiciary Act because, upon its true construction, Pt VII of the Family Law Act "otherwise provided".

    [44]For example, in ss 65E, 67L, 67V, 67ZC and 68E(1).

    [45][1996] FLC ¶92‑694 at 83,237; (1996) 134 FLR 40 at 54.

    [46][1993] FLC ¶92‑351 at 79,704.

20. However, with respect to the application which was instituted on 16 June 1995 and which has given rise to the issues before this Court, exhaustive or exclusive provision made by Pt VII with respect to taking the best interests of the child as the paramount consideration was that spelled out in s 65E. This is the ultimate issue to be decided, namely whether to make a particular parenting order in relation to the child.

21. The question whether a subpoena should be set aside is anterior to any question of the admissibility of evidence.  Further, upon production to the court, claims of privilege may be raised which require inspection of the documents by the judge[47]; the court may also limit access to the documents and restrict the making of copies.  All these steps are designed to assist the preparation for or the conduct of trials.  The conduct of the trial or other hearing may produce the situation where few or none of the documents are sought to be tendered.

    [47]See discussion in Zarro v Australian Securities Commission (1992) 36 FCR 40 at 44‑48, 60‑61 of the earlier authorities in this Court.

22. When the provisions of Pt VII are seen in this light, it is apparent that the immunity which s 97(3) confers in respect of what otherwise would be a requirement laid upon authorised persons by a subpoena issued by the Family Court in the course of the exercise of jurisdiction under Pt VII does not vary, impair or detract from the operation of "the paramountcy principle".  Nor is it impossible to give effect to "the paramountcy principle" and to s 97(3).

23. Finally, the subject with which Pt VII relevantly deals, the "paramountcy principle" implemented in s 65E, is a subject upon which Pt VII makes exclusive or exhaustive provision in its terms without manifesting a legislative intention to cover the broader field marked out by the majority in the Full Court, to the exclusion of any law otherwise applicable in that broader field.

24. It follows that there is no necessary implication in Pt VII which requires qualification to the law‑making power conferred upon the Legislative Assembly of the Northern Territory by s 6 of the Self‑Government Act so that it does not sustain so much of s 97(3) of the Community Welfare Act as confers an immunity upon authorised persons from the demands of a subpoena issued in proceedings under Pt VII of the Family Law Act. Nor, if this be the correct method of characterising the result, does Pt VII, as a matter of necessary implication, have such an overriding effect directly upon s 97(3), rather than through the medium of a restriction on the law‑making power conferred upon the Legislative Assembly under s 6 of the Self‑Government Act.

25. Accordingly, the fourth and threshold issue identified earlier in these reasons is to be resolved by determining that, when the jurisdiction of the Family Court under Pt VII was invoked, s 97(3) was in force as a law of the Northern Territory and thus was available as an object of the operation of s 79 of the Judiciary Act, if the other criteria prescribed by that section were satisfied.

1. This brings us to the third issue isolated above, namely whether s 97(3) was not rendered binding on the Family Court because the Family Law Act was, within the meaning of s 79 of the Judiciary Act, a law of the Commonwealth which "otherwise provided".

   "Otherwise provided"

2. The text of s 79 is set out earlier in these reasons. It was derived from s 34 of the Judiciary Act of 1789[48], enacted by the First Congress of the United States and more often referred to as the Rules of Decision Act. Section 34 stated:

   "That the laws of the several states, except where the constitution, treaties or statutes of the United States shall otherwise require or provide, shall be regarded as rules of decision in trials at common law in the courts of the United States in cases where they apply."

   It has been said of s 34 that, if the federal courts are directed to apply federal law, it governs by "displacing" state law, even on matters of substance[49], and that this operation of s 34 is dictated by the Supremacy Clause of the United States Constitution (Art VI, cl 2)[50].

   [48]1 Stat 73, 92 (1789), now codified as amended at 28 USC §1652 (1994).

   [49]Freer, "Some Thoughts on the State of Erie After Gasperini", (1998) 76 Texas Law Review 1637 at 1637; Wright, Miller and Cooper, Federal Practice and Procedure:  Jurisdiction, 2nd ed (1996), vol 19, §4501.

   [50]See Sola Electric Co v Jefferson Electric Co 317 US 173 at 176 (1942). The Supremacy Clause provides:

   "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."

3. In applying the phrase "otherwise provided" in s 79, Latham CJ[51] and Starke J[52] asked whether the particular law of the Commonwealth was to be regarded in any way as "inconsistent" with the application of the State Act which was said to be "picked up" by s 79.  Later, Menzies J asked whether the law relied upon as a law of the Commonwealth was one "displacing" the law of the State[53].  In Australian National Airlines Commission v The Commonwealth, Mason J said[54]:

   "Section 26A of the High Court Procedure Act [1903 (Cth)], which provides that judgments of the Court shall carry interest, should be regarded as a comprehensive expression of the entitlement in this Court of a litigant to interest on damages to the exclusion of any provision in State law which would otherwise be made applicable by virtue of s 79."

   [51]De Vos v Daly (1947) 73 CLR 509 at 515.

   [52](1947) 73 CLR 509 at 518.

   [53]Anderson v Eric Anderson Radio & TV Pty Ltd (1965) 114 CLR 20 at 39.

   [54](1975) 49 ALJR 338 at 340; 6 ALR 433 at 436. See also Arnotts Ltd v Trade Practices Commission (1990) 24 FCR 313 at 368‑369 where it was concluded that the relevant law of the Commonwealth left "no room" for the application of the State law.

4. The objective of s 79 is to facilitate the particular exercise of federal jurisdiction by the application of a coherent body of law, elements in which may comprise the laws of the State or Territory in which the jurisdiction is being exercised, together with the laws of the Commonwealth, but subject always to the overriding effect of the Constitution itself. Seen in that light, the notion of "inconsistency" involved in the phrase "otherwise provided" in s 79 is akin to that first identified by Mason J in the passage from the judgment in University of Wollongong v Metwally[55] set out earlier in these reasons.  This is the need to resolve the problem that arises by conflict between conflicting statutes having the same source.  The law of a State or Territory which is to operate as a surrogate law of the Commonwealth is to be measured beside other laws of the Commonwealth.

   [55](1984) 158 CLR 447 at 463.

5. The issue whether the Family Law Act makes relevant provision otherwise to s 97(3) of the Community Welfare Act may be approached by asking whether the operation of the former so reduces the ambit of the latter that the provisions of the Family Law Act are irreconcilable with those of the Territory law, with the result that the Family Law Act "otherwise provide[s]"[56].

   [56]cf Kartinyeri v The Commonwealth (1998) 72 ALJR 722 at 727‑728, 740‑741; 152 ALR 540 at 547‑548, 564‑565.

6. One answer suggested in the submissions was to focus upon the phrase "except for the purposes of this Act" in s 97(3) and the broad statement in the long title to that law that it was to provide for the protection and care of children. This, it was put, was a purpose consistent with the paramountcy principle manifested in Pt VII of the Family Law Act. The result was said to be that, in the present case, to require the authorised person to produce the documents in response to the subpoena was to require action for the purposes of the Child Welfare Act. That would mean that the immunity otherwise given by s 97(3) did not operate.

7. However, the phrase "except for the purposes of this Act" in s 97(3) is to be understood in the sense given to it by the established authority to which counsel for the New South Wales Attorney‑General referred.  In James v Cowan[57], the Judicial Committee agreed with the dissenting judgment in this Court of Isaacs J.  His Honour had warned against seizure upon words in a long title, separate from their context, and their erection into a "purpose" of the statute within the meaning of a specific provision thereof[58].  Isaacs J had continued[59]:

   "The title is the label which the Legislature thinks most suitable to identify the contents of the depository of its will on the given subject. It is no part of its enactment as to the 'purposes' of the Act, except as to its authoritative selection as a label. The title is no more part of the remedy designed to cope with the evil dealt with than is the label on a druggist's bottle part of the remedy for the malady intended to be cured."

   [57](1932) 47 CLR 386 at 398; [1932] AC 542 at 561.

   [58](1930) 43 CLR 386 at 407‑408.

   [59](1930) 43 CLR 386 at 408.

8. What is presently significant is that the provisions of Pt XIIIA of the Family Law Act leave room for the operation of the immunity conferred by s 97(3) of the Community Welfare Act. The provisions of Pt XIIIA are outlined earlier in these reasons. Section 112AC is particularly significant in its provision for "reasonable excuse". The submission that the immunity provided for by s 97(3)(a) provides a reasonable excuse for failure to comply with the requirement of a subpoena issued under the Rules of Court that a document be produced to the Family Court should be accepted. Section 112AD, in its application with respect to subpoenas, takes no large step. The apparently absolute terms of the command in subpoenas issued under other Rules of Court are treated as permitting the recipient to rely on provisions such as s 97(3) as an answer to production[60].

   [60]cf Nestle Australia Ltd v Commissioner of Taxation (1986) 11 FCR 453 at 455‑456; affd (1986) 12 FCR 257.

9. The result is that Pt VII does not otherwise provide within the meaning of s 79 of the Judiciary Act.

10. There remains the question whether, although the Family Court was exercising jurisdiction conferred by s 69H(1) and s 69ZG of the Family Law Act with respect to a matter arising under a law made by the Parliament, the circumstance of the combination of those two sections as supported by s 122 of the Constitution denies to the exercise of that jurisdiction by the Family Court, a federal court within the meaning of Ch III of the Constitution, the character of federal jurisdiction.

    Federal jurisdiction

11. Section 39(2) of the Judiciary Act confers "federal jurisdiction" on the several Courts of the States within the limits of their several jurisdictions. The term "jurisdiction" here signifies authority to adjudicate[61]. Speaking of the term "federal jurisdiction" in s 39(2), Kitto J observed that "all that is meant by saying that a court has federal jurisdiction in a particular matter is that the court's authority to adjudicate upon the matter is a part of the judicial power of the federation"[62].  In the same case, Windeyer J identified "federal jurisdiction" as depending upon the grant by Commonwealth law (or, one would add, by Ch III itself) of "a power of adjudication"[63].

    [61]Ah Yick v Lehmert (1905) 2 CLR 593 at 603; Baxter v Commissioners of Taxation (NSW) (1907) 4 CLR 1087 at 1142.

    [62]Anderson v Eric Anderson Radio & TV Pty Ltd (1965) 114 CLR 20 at 30.

    [63](1965) 114 CLR 20 at 44. See also Baxter v Commissioners of Taxation (NSW) (1907) 4 CLR 1087 at 1142; Lorenzo v Carey (1921) 29 CLR 243 at 252.

12. In Anderson v Eric Anderson Radio & TV Pty Ltd[64], Taylor J expressed doubt as to whether a right given to a plaintiff by an Ordinance promulgated for the Australian Capital Territory under s 12 of the Seat of Government Act answered the description of a matter arising under a law made by the Parliament and thereby attracted federal jurisdiction. However, in Federal Capital Commission v Laristan Building and Investment Co Pty Ltd[65], Dixon J had said that it was clear that a claim to a right conferred by or under Ordinances made by the Governor‑General in Council under s 12 of the Seat of Government Act were matters arising under an enactment of the Parliament. His Honour assumed jurisdiction in the action which was brought in the original jurisdiction of the High Court[66].  Further, in Capital TV and Appliances Pty Ltd v Falconer[67], Menzies J rejected a proposition to the effect that the text of s 76(ii) of the Constitution should be read as containing an implied limitation "other than any laws made by the Parliament under s 122 of this Constitution". His Honour said[68]:

    "This I reject.  The submission, I believe, contradicts the decision of this Court in Lamshed v Lake[69], a decision of far‑reaching importance from which, I think, there should be no departure."

    Menzies J continued[70]:

    "The only basis for a restricted construction of s 76(ii) would be to find in R v Bernasconi[71], a general principle that, for the purposes of Ch III, 'laws of the Commonwealth' or 'laws made by Parliament' do not cover laws made under s 122.  To reach this conclusion would, I think, be an extension - despite Lamshed v Lake[72] - of the decision of the Court in R v Bernasconi[73].  That decision should not, I think, be extended and it should be regarded as a decision which goes no further than to establish that, as a matter of construction, the words 'any law of the Commonwealth' in s 80 should be read as if they were followed by the words 'other than a law made under s 122'.  While, therefore, I consider that the decision in R v Bernasconi[74] should be allowed to stand as establishing the construction to be accorded to s 80, I do not regard it as affording any reason for restricting the words 'any laws made by the Parliament' in s 76(ii) to exclude laws made by the Parliament under s 122. It would hardly be sensible to read s 76(ii) as denying Parliament power to make laws conferring original jurisdiction upon this Court in a matter arising under the law made by Parliament under s 122 and then to read s 122 as conferring upon Parliament the power to make such a law. In my opinion there is no ground for inferring any limitation upon the ordinary meaning of the words used in s 76(ii)."

    [64](1965) 114 CLR 20 at 35‑37.

    [65](1929) 42 CLR 582 at 585‑586. See also Dixon CJ's remarks in Chapman v Suttie (1963) 110 CLR 321 at 329‑330.

    [66](1929) 42 CLR 582 at 586.

    [67](1971) 125 CLR 591.

    [68](1971) 125 CLR 591 at 605.

    [69](1958) 99 CLR 132.

    [70](1971) 125 CLR 591 at 605‑606.

    [71](1915) 19 CLR 629.

    [72](1958) 99 CLR 132.

    [73](1915) 19 CLR 629.

    [74](1915) 19 CLR 629.

13. With that conclusion, we agree.

14. As we have indicated, in a judgment supervening between Laristan Building and Investment Co and Capital TV and Appliances, Taylor J had said[75] that "it may be open to question" whether an action to enforce a right given by an Ordinance made in exercise of power conferred by a statute of the Parliament involved a matter "arising under any laws made by Parliament".  However, even if that were so (and, in Laristan Building and Investment Co, Dixon J said that the contrary might well be the case[76]), it would not follow that a right directly conferred by the law of the Commonwealth itself did not give rise to a matter arising thereunder.  Moreover, it has since been settled by the joint judgment of six members of this Court in LNC Industries Ltd v BMW (Australia) Ltd[77] that a matter arises under a federal law if the right or duty in question in the matter owes its existence to federal law or depends upon federal law for its enforcement or if the source of a defence which asserts that the defendant is immune from the alleged liability or obligation is a law of the Commonwealth.

    [75]Anderson v Eric Anderson Radio & TV Pty Ltd (1965) 114 CLR 20 at 37.

    [76](1929) 42 CLR 582 at 585.

    [77](1983) 151 CLR 575 at 581. See also Re McJannet; Ex parte Australian Workers' Union of Employees (Q) [No 2] (1997) 189 CLR 654 at 656.

15. We conclude that the Court should accept the submissions as to the construction of s 76(ii) of the Constitution made by the appellant with the support, in particular, of the Attorney‑General for the Commonwealth and the Attorney‑General for New South Wales as interveners. The submission, essential for this case, is that s 76(ii), in conjunction with s 77(i) of the Constitution, operates in accordance with its terms and permits the conferral of jurisdiction on federal courts in matters arising under laws made under s 122 of the Constitution. In such cases the constitutional source of the jurisdiction is s 76(ii) and s 77(i) and the jurisdiction is federal.

16. It is important to identify those issues which are not now before the Court.  The outcome in this case is not governed or controlled by R v Bernasconi[78] or Porter v The King; Ex parte Yee[79]. The Family Court is clearly a "federal court" and not a "territory court". No issue arises as to whether s 122 of the Constitution authorises laws creating "territory courts" which are not federal courts created under s 71 but upon which the Parliament may confer federal jurisdiction[80].  If the Parliament may do so, a question arises with respect to the application to such "territory courts" of the reasoning in Kable v Director of Public Prosecutions (NSW)[81].  Nor is it necessary to embark upon the question whether s 122 supports the conferral upon a federal court of a jurisdiction which is not federal jurisdiction[82].  Finally, this case does not concern the appellate jurisdiction of the High Court, in particular any re‑examination of the determination in  Capital TV and Appliances Pty Ltd v Falconer[83] that (a) a "territory court" is not a federal court or a court exercising federal jurisdiction within the meaning of s 73 of the Constitution but (b) the Parliament may authorise an appeal to the High Court from a court created in exercise of the power in s 122.

    [78](1915) 19 CLR 629.

    [79](1926) 37 CLR 432.

    [80]See Spratt v Hermes (1965) 114 CLR 226.

    [81](1996) 189 CLR 51.

    [82]cf Gould v Brown (1998) 72 ALJR 375 at 384‑385, 397‑398, 412, 431‑432, 451; 151 ALR 395 at 406, 423‑424, 443‑444, 470‑471, 497‑498.

    [83](1971) 125 CLR 591.

    Conclusion

17. The appeal to this Court should be allowed. Order 1 of the orders made by the Full Court of the Family Court on 8 August 1996 should be set aside. In place thereof an answer to the question in the case stated should be given which indicates that the provisions of s 97(3) of the Community Welfare Act, in their operation with respect to the subpoena issued on 23 October 1995, were not rendered inoperative by the provisions of the Family Law Act or the Evidence Act, and that s 97(3) was binding on the Family Court by reason of the operation of s 79 of the Judiciary Act.

18. As indicated earlier in these reasons, the appellant brought this appeal consequent upon its entry into the litigation in the Family Court as an intervener.  There should be no order for costs in this Court[84].

    [84]See De L v Director‑General, NSW Department of Community Services [No 2] (1997) 190 CLR 207 at 220‑221.

19. The proceeding in this Court otherwise should be remitted to the Full Court of the Family Court for such reconsideration as may be appropriate, in the light of the decision of this Court and of the lapse of time, of the timetable with respect to submissions as to costs laid down in Order 3 of the orders made on 8 August 1996.

1. GAUDRON J.   The issue to be decided in this appeal is whether the Manager, Child and Family Protective Services of the Northern Territory ("the Manager") is obliged to produce documents relating to a young child, Z, in Family Court proceedings concerned with that child's guardianship.  To answer that question, however, a number of other questions must first be answered.

   The proceedings in the Family Court

2. The proceedings in the Family Court which give rise to this appeal were commenced by the second respondent, JAW, seeking sole guardianship of her child, Z, and the discharge of access orders previously made in favour of the child's father, GPAO, the first respondent[85].  The mother and father, who reside in the Northern Territory, were never married[86].

   [85]See the decision of the Full Court of the Family Court in this case, reported as Re Z [1996] FLC ¶92-694 at 83,251 per Fogarty J.

   [86]Re Z [1996] FLC ¶92-694 at 83,251.

3. At the father's request, a subpoena was issued by the Registrar of the Family Court pursuant to O 28 r 1 of the Family Law Rules (Cth) ("the Rules") requiring the Manager to produce "[a]ll files and records in relation to [Z]"[87]. On the return date, it was argued that the Manager was not obliged to produce the documents in question because of s 97(3) of the Community Welfare Act (NT)[88].  That sub‑section provides:

   "    A person who is, or has been, an authorized person shall not, except for the purposes of this Act, be required to –

   (a)produce in a court a document that has come into his possession or under his control; or

   (b)disclose or communicate to a court any matter or thing that has come under his notice,

   in the performance of his duties or functions under this Act."

   It is not in issue that the Manager is an "authorized person" for the purposes of s 97(3).

   [87]Re Z [1996] FLC ¶92-694 at 83,252.

   [88]Re Z [1996] FLC ¶92-694 at 83,252.

4. In consequence of the issues raised by the Manager's reliance on s 97(3) of the Community Welfare Act, Murray J stated a case pursuant to s 94A of the Family Law Act 1975 (Cth) ("the Act") for the consideration of the Full Court of the Family Court[89].

   [89]Re Z [1996] FLC ¶92-694 at 83,250.

   The question asked of the Full Court

5. The case stated by Murray J was later amended by the Full Court.  As amended, it asked the following question:

   "Are the provisions of s 97(3) of the Community Welfare Act (NT) inconsistent with provisions of:

   (a) the Family Law Act 1975 (Cth); or

   (b) the Evidence Act 1995 (Cth);

   such that the provisions of s 97(3) of the Community Welfare Act 1983 (NT) are inoperative to the extent of such inconsistency?"[90]

   [90]Re Z [1996] FLC ¶92-694 at 83,250.

6. By majority (Nicholson CJ and Frederico J), the Full Court answered the question in the case stated as follows:

   "(a)   Yes;

   (b)    Yes."[91]

   The third member of the Full Court, Fogarty J, would have answered the question this way:

   "(a)   No;

   (b)    Yes, insofar as it relates to the adduction of evidence."[92]

1. In my view, it is not a "reasonable excuse". To say that it might be, tortures the language of the federal law. It is not analogous to the other "reasonable excuses" mentioned in the Act. All of these are specific and temporary. It is not one which commits to the judge exercising the jurisdiction of the Family Court the balancing of interests usual to the evaluation of a "reasonable excuse". It simply purports to provide an absolute barrier to compliance with the order and a refusal to produce the documents referred to in the subpoena, whatever their relevance to the issues before the Family Court. Although several exceptions are acknowledged in s 97 of CWA, the Family Court is, by the terms of the territory law, purportedly denied the power of inspection, evaluation of whether the documents could be relevant and judgment of any claims for exemption from production on the grounds of public interest immunity or otherwise. Although territory administrators and officials might get access to the documents, a judge of the Family Court of Australia might not. This is not the kind of "reasonable excuse" for contravening the order in a subpoena which the provisions of ss 112AB, 112AC and 112AD were concerned to provide. This final textual attempt to avoid the possibility of inconsistency or repugnancy between the federal and territory laws having been rejected, it is necessary to turn to those questions in so far as they affect the operation of FLA upon subject matters which s 97(3) of CWA would affect if its provisions bound the Family Court and limited the effectiveness of that Court's subpoenas.

   Indications of inconsistency and repugnancy

2. There are at least four indications in FLA which suggest that its terms cannot coexist with s 97(3) of CWA. I refrain from using the fiction of the intention of the federal Parliament.  It is preferable, in my view, simply to compare the effect of the applicable federal law with that of the territory law to see if the latter, properly interpreted, would "alter, impair or detract from" the operation of the federal law[291].  In my view it would.

   [291]Victoria v The Commonwealth ("the Kakariki") (1937) 58 CLR 618 at 630.

3. First, the federal law establishes a court to which the federal Parliament has committed a large jurisdiction and many powers affecting children.  It is the clear purpose of the Parliament in so providing that the treatment of the cases committed to the Family Court should, so far as possible, be uniform and consistent throughout Australia where that Court exercises jurisdiction.  The outcome of a particular case should not vary (nor the evidence available to resolve the case significantly alter) by reference to the particular State or territory in which the Family Court happens to be sitting.  The variations in the legislative provisions governing access to the files and records of child welfare departments concerned with investigations of suspected cases of child abuse vary significantly in different parts of Australia[292].  It also appears that the measure of cooperation between State or territory child welfare authorities and the Family Court in discharging their respective functions differs between the several Australian jurisdictions[293].  It is unthinkable that the performance by the Family Court of its functions, under powers conferred by federal law, should depend in important matters upon such local variations.  One potentially important matter is the possibility of having available to the Family Court evidence which might assist it in discharging properly, and in accordance with the paramountcy principle, its powers where allegations of child abuse (including sexual abuse) need to be resolved.  Why should the outcome of the mother's application in the present case depend upon the chance consideration that her proceedings before this federal court were brought in Darwin rather than in some other jurisdiction of the Commonwealth where the statutory limitation on disclosure to a judge of the Family Court of child welfare investigations of child abuse is not so absolute?  Or where cooperation with the Family Court is more fulsome?  That is a question which the father, the mother and the separate representative on behalf of the child ask of this Court in these proceedings.  There can be only one reply.  It is a reply which upholds federal law and assures to the Family Court the powers to perform the functions committed to it by federal law.

   [292]Re Z [1996] FLC ¶92-694 at 83,254 - 83,260 per Fogarty J where some of the differences are described.

   [293]Re Karen and Rita [1995] FLC ¶92-632 at 82,353 per Nicholson CJ: "It has been of great benefit to have been able to consider [the children's] welfare with all options open. It is all too common for Departments in the States and Territories and this Court to be proceeding along parallel, but divergent tracks in relation to issues of children's welfare."

4. Secondly, the question is presented in an area of the operations of the Family Court where it is especially important that that Court should not be denied (where it might be relevant and otherwise admissible) the possibility of access to evidence potentially of forensic importance.  In M v M[294], a custody case concerned with the approach to be taken by the Family Court where allegations of sexual abuse were made, this Court said[295]:

   "    In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk.  After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare.  The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access."

   [294](1988) 166 CLR 69.

   [295](1988) 166 CLR 69 at 77.

5. How, it might be asked, is the function described in this passage to be performed where, in the Northern Territory, potentially at least, relevant and important evidence may be withheld in reliance on s 97(3) of CWA? How, in such circumstances, can the existence and magnitude of the risk of sexual or other abuse be accurately assessed by the federal court having the legal responsibility to do so?

6. It is not to the point to say that disclosure of confidential information to a child welfare authority would dry up, or confidences be broken, if the Family Court were given access to files containing such information. This argument is scarcely convincing in the present case. CWA already contains numerous express exemptions for disclosure permitted to administrators and officials, although absolutely withheld from the Family Court, a federal superior court with specialised jurisdiction over children. Moreover, as the first respondent repeatedly pointed out, the mere production of a child welfare file to the Family Court is no guarantee that the parties will gain access to the contents of that file or succeed in persuading the Family Court to permit access or inspection by the parties or to admit the contents into evidence. It is fundamental to such questions that such documents are produced to the court. They are not produced to the parties. They remain under the control of the court. The court has to be convinced that it should itself inspect the documents. In all the circumstances, it may decline to do so. It may set aside the subpoena in the particular case. It may decide to inspect some only of the documents. It may seek guidance, in this respect, from the departmental manager of the file. It may limit access to the file, under conditions, to the legal representatives of the parties and not the parties themselves. It may use pseudonyms or other "devices" to protect the persons named[296].  It will be in control over the provision (if any) of the documents or parts of documents to the parties and any admission of that evidence in the trial.  Before taking any of the foregoing steps, the court may afford opportunities to the parties, the file manager, (where relevant) persons affected or their representatives and, in appropriate cases, the Law Officers to assist it to make a lawful and just decision.

   [296]See Attorney-General v Leveller Magazine Ltd [1979] AC 440 at 471; John Fairfax Group Pty Ltd v Local Court of NSW (1991) 26 NSWLR 131 at 141; cf Sankey v Whitlam (1978) 142 CLR 1 at 42.

7. Accordingly, there is a clear contradiction between the territory law and the operation of the Family Court in its vital jurisdiction concerning children exercised as the federal Parliament envisaged it would be. In the case of such contradiction, the territory law must yield. It is inconsistent with, or repugnant to, the operation of FLA. The provisions of the federal law prevail. Not least is this so because of the pains which the federal Parliament has taken to ensure that the decisions in question must be made in conformity with the paramountcy principle and, in that way, in compliance with international law.

8. Thirdly, specific provisions of FLA reinforce the foregoing conclusion. These include the fact that jurisdiction in the Family Court has now been confirmed and enhanced in the case of children by provisions of FLRA according to which s 67ZC has been inserted in FLA. That section provides:

   "(1)   In addition to the jurisdiction that a court has under this Part in relation to children, the court also has jurisdiction to make orders relating to the welfare of children.

   (2)    In deciding whether to make an order under subsection (1) in relation to a child, a court must regard the best interests of the child as the paramount consideration."

9. Given this express provision of jurisdiction (relevantly) to the Family Court of Australia in the area of child welfare, there is now even less reason than was previously the case to assume that that federal law is designed to deal only with particular aspects of the interests of children and then solely as they relate to the dissolution of the marriage of their parents and consequent orders. By s 67ZC of FLA the federal Parliament has made it plain that, for the purposes of children coming within its powers, the Family Court is to be fully authorised to make orders relating to their "welfare". It is to do so in accordance with the
   paramountcy principle.  This being so, to deny to the Family Court, in every case, whatever the circumstances, material in State and territory child welfare files which might be relevant to the discharge of the welfare jurisdiction conferred on the Court by federal law, and to do so in terms which differ significantly from one Australian jurisdiction to another, is incompatible with the enhanced welfare jurisdiction of the Family Court of Australia.

10. The detailed provisions in FLA governing steps to be taken in cases of alleged child abuse (including sexual abuse)[297] also reflect the recognition by the federal Parliament of the importance of such abuse and of the proper resolution of allegations about it for the child, its parents and all concerned. The amendments to FLA clearly recognise the important role which the Family Court is to have in deciding such matters where they affect children within its jurisdiction. To deny to that Court, in appropriate cases, even the possibility of access to documents and files relevant to the discharge of its functions under federal law is completely incompatible with the proper discharge by the Family Court of its functions.

    [297]See eg s 67Z of FLA (previously s 70BA).

11. The purported operation of s 97(3) of CWA to frustrate the effective performance by the Family Court of its powers, and the exercise by it of its federal jurisdiction, cannot succeed. To the extent that the CWA provision purports to have that effect, its terms have no application to the Family Court of Australia.

12. The fourth and final consideration to be mentioned concerns the importance of upholding the subpoena power of the Family Court and attaching effective sanctions to non-compliance with the order constituted by a subpoena.  The subpoena is one of the greatest inventions of English law.  It is an essential feature of the proper exercise of the judicial power[298].  Those in doubt should study the misfortunes of countries whose courts lack this mean of making the exercise of their jurisdiction and powers effective[299].  The Family Court has large powers under federal law[300] and under its implied[301] (sometimes incorrectly called "inherent")[302] jurisdiction to issue orders in the nature of subpoenas and to make effective the exercise of its statutory powers and functions as a court.  It is true that the existence of such powers does not, of itself, override all of the statutory and common law rules which impose limitations on access to documents and the use that may be made of them as evidence in a court of law.  But these are questions which arise after a judge has the files and records and is asked to rule on access to, and use of, their contents as evidence.

    [298]Rochfort v Trade Practices Commission (1982) 153 CLR 134 at 139; Ditfort v Calcraft, Court of Appeal (NSW), unreported, 22 December 1989, noted in Carter, Subpoena Law and Practice in Australia (1996) at 10-12; cf Danieletto v Khera (1995) 35 NSWLR 684 at 687-688; National Employers' Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372.

    [299]See Kirby, Foreword to Carter, Subpoena Law and Practice in Australia (1996) at vi-vii referring to the position of courts in Cambodia.

    [300]ss 21, 34(1), 34(2) and 123 of FLA; O 28 r 1 of the Family Law Rules; cf Hughes v Western Australian Cricket Association (Inc) (1986) 66 ALR 541; Re Federal Commissioner of Taxation; Ex parte Swiss Aluminium Australia Ltd (1986) 68 ALR 587.

    [301]Jackson v Sterling Industries Ltd (1987) 162 CLR 612 at 623-624 per Deane J approving a distinction made by Bowen CJ in the Full Federal Court; Grassby v The Queen (1989) 168 CLR 1 at 16-17; John Fairfax Group Pty Ltd v Local Court of NSW (1991) 26 NSWLR 131 at 147; cf Taylor v Taylor (1979) 143 CLR 1 at 5‑6.

    [302]eg R v Forbes; Ex parte Bevan (1972) 127 CLR 1 at 7; Taylor v Taylor (1979) 143 CLR 1 at 6; cf Danieletto v Khera (1995) 35 NSWLR 684 at 686.

13. In the present case, the Department (supported by the appellant) sought, in effect, a blanket exemption from the subpoena order, relying on s 97(3) of CWA. Unless clearly justified by law, I would accept no construction of FLA concerning the Family Court's power which excused from compliance those to whom its orders were addressed. In family law matters, even more than most others, passions often run high. Obedience to orders in the form of subpoenas must be upheld. Where documents are referred to they must be brought into court unless, by earlier order, a party is excused, as for example where application is made to set the subpoena aside. Here, a subpoena of the Family Court was fully effective to require the files and records of the Department to be brought to the Family Court. It was then for the Family Court judge having jurisdiction in the case, balancing the competing interests and acting in the settled way that has been developed by our law, to determine the issues of access to them and the use (if any) that might be allowed of them. The suggestion that s 97(3) of CWA excused compliance, or in some way relieved the recipient from having to comply, is rejected.

14. The terms of FLA, a federal law, and the proper operation of that law in the case of the Family Court, a federal court, make clear the purpose of the federal Parliament that that Court should not, in cases concerned with the interests of a child, be confined by a blanket prohibition of the kind that appears in s 97(3) of CWA, a territory law. The latter would "alter, impair or detract from" FLA, a federal law[303].  To that extent the federal law prevails.  The territory law is ineffective.  The threshold question should therefore be decided, as the Full Court did, in favour of the first respondent.

    [303]Victoria v The Commonwealth ("the Kakariki") (1937) 58 CLR 618 at 630.

    The federal law "otherwise provides"

15. This conclusion relieves me of the necessity to consider whether, differently analysed, federal law "otherwise provides" within s 79 of the Judiciary Act. However, it necessarily follows that it does. If, contrary to my conclusion on the threshold question, it is necessary or appropriate to consider the case in terms which asked whether s 97(3) of CWA was a "surrogate" federal law for the Family Court's exercise of federal jurisdiction, the result would be exactly the same. FLA "otherwise provides" by committing to the Family Court a large jurisdiction and powers to decide whether to make a particular parenting order in relation to a child. It does so, as well, by conferring upon the Family Court the welfare jurisdiction which it now possesses.

16. Because FLA "otherwise provides", it makes it clear that s 97(3) of CWA is not "picked up" as a "surrogate" federal law to be applied by the Family Court. Therefore, the Family Court was not bound by the territory law. Instead, it is bound by FLA and the ordinary considerations of the common law which uphold the right of a judge of the Family Court, if that judge considers it necessary and proper to do so, to inspect documents brought to the Court on subpoena, to rule on arguments of public interest or other claims to immunity and to make such decisions on the access to the documents and their reception into evidence as are lawful and appropriate[304].  This is the course which the appellant sought to prevent.  In my view, legal authority requires rejection of its attempt.  So does legal principle and legal policy.  So does the consideration of ensuring the observance, in this aspect of Australian federal law, of the principle stated in that law, and in international law, that such decisions should be made, guided by the best interests of the child.

    [304]Haj-Ismail v Madigan (1982) 45 ALR 379; Registrar of the Workers' Compensation Commission of New South Wales v FAI Insurances Ltd [1983] 3 NSWLR 362 at 366-367; D v National Society for the Prevention of Cruelty to Children [1978] AC 171 at 230.

    The Evidence Act question does not arise

17. In light of the foregoing conclusion, the question concerning the effect of the Evidence Act upon the operation of s 97(3) of CWA does not arise. That question was not included in the case as originally stated by Murray J. It was only added by later order of the Full Court. However, in the conclusion which I have reached, the answer to that question is wholly theoretical. This is because, by reason of the provisions of FLA, without more, s 97(3) of CWA has no application. It is unnecessary therefore to explore the question whether there is an additional basis in federal law for reaching the same conclusion[305]. 

    [305]The Evidence Act, s 8 makes it clear that it does not affect the operation of the provisions of any other federal Act other than specified provisions of the Judiciary Act (including s 79).  Accordingly, the Evidence Act does not displace FLA.

18. The issue presented by the question whether the Evidence Act applies to interlocutory judicial decisions made before the commencement of a trial is an important one.  Upon it, differing opinions have been expressed in the courts of Australia.  The Full Court of the Federal Court of Australia has recently delivered a decision on this point[306].  It would be preferable, if not constitutionally necessary, to decide the question involved in that decision when it is essential to a case before this Court, as here it is not.

    [306]Esso Australia Resources Ltd v Federal Commissioner of Taxation (1998) 159 ALR 664.

    Orders

1. The appeal should be allowed in part.  The answer given by the Full Court to question (b) in the case stated should be amended to substitute for the answer there given the words "unnecessary to answer".  Otherwise, the answer given by the Full Court to question (a) in the case stated should be confirmed.  The appeal should otherwise be dismissed.  The appellant should pay the first respondent's costs of the appeal.  The costs of the first respondent in the Family Court should be disposed of in accordance with the orders of the Full Court of that Court.

1. HAYNE J.   For the reasons given by Gleeson CJ and Gummow J I agree that the appeal should be allowed and consequential orders made as they propose.

2. It follows that I am unable to accept that "federal jurisdiction", when used in Ch III, is to be read as confined to authority to adjudicate on rights and duties that find their constitutional origin in laws made under ss 51 or 52 of the Constitution, or as limited to jurisdiction that in some way concerns only the States and the Commonwealth as opposed to the States, the Commonwealth and its territories.

3. The source of a federal court's authority to adjudicate is the law made by the Parliament, whatever may be the constitutional foundation for the rights and duties that are to be adjudged. The diversity jurisdiction dealt with in s 75(iv) and matters of Admiralty and maritime jurisdiction referred to in s 76(iii) (to take only two examples) are, or include, jurisdiction that is not directly concerned with the rights and duties created by laws made under ss 51 or 52 or with the federal compact (although, of course, each is dealt with in the Constitution because of that compact). And yet s 77(iii) speaks of those and the other matters mentioned in ss 75 and 76 as if Parliament, making a law investing State courts with jurisdiction with respect to them, is investing the State courts concerned with federal jurisdiction. And it speaks of them as matters of "federal jurisdiction" because it is Ch III that gives the authority to invest the court concerned with jurisdiction to determine the rights and duties concerned.

4. I accept that the decided cases in this area do not speak with a single and compelling voice, although I would add that I consider the weight of more recent authority supports the view I have reached, even if it does amount to an undermining of what was said in earlier cases. I accept also that, at the time of Federation, some, perhaps many, thought it possible that the Commonwealth would assume responsibility for many and diverse territories in various states of constitutional development and that these territories were seen as standing apart from the main stream of federal law relating to judicial power. But the immediate question that arises is whether the reference to "laws made by the Parliament" in s 76(ii) includes laws made under the power given by s 122 to make laws for the government of any territory.

5. For the reasons I have given and those given by Gleeson CJ and Gummow J it does.