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
Appeal allowed.
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 Act1995 (Cth), and was binding on the Family Court by reason of the operation of s 79 of the Judiciary Act 1903 (Cth).
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 –…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Northern Territory v GPAO [1999] HCA 8
Case
[1999] HCA 8
Decision Date
CaseChat Overview and Summary
The High Court of Australia heard an appeal concerning the obligation of the Manager, Child and Family Protective Services of the Northern Territory, to produce documents relating to a child in Family Court proceedings. The dispute arose from a subpoena issued by the Family Court requiring the production of these documents, and the Manager's contention that certain provisions of the Northern Territory's Community Welfare Act provided immunity from such production. The core of the matter involved the interplay between Commonwealth legislation, specifically the Family Law Act 1975 and the Judiciary Act 1903, and Northern Territory legislation, the Community Welfare Act.
The legal issues before the High Court included whether laws made under the territories power were considered "laws made by the Parliament" for the purposes of section 76(ii) of the Constitution, whether the Family Court was bound by Territory law, and if the immunity provided by the Northern Territory's Community Welfare Act constituted a "reasonable excuse" for non-compliance with a Commonwealth subpoena. Additionally, the Court considered whether the Evidence Act 1995 (Cth) applied to the production of documents in response to a subpoena and whether any such obligation to produce documents excluded "public interest" privileges.
The High Court reasoned that the Family Court, as a federal court, was bound by section 79 of the Judiciary Act 1903, which generally requires federal courts to apply the laws of the State or Territory in which they sit. The Court determined that the immunity provided by section 97(3) of the Community Welfare Act (NT) was not rendered inoperative by the Family Law Act 1975 or the Evidence Act 1995. It found that the Evidence Act did not govern the obligation to produce documents in response to a subpoena, and therefore, the Territory law's provision for immunity in such circumstances was binding on the Family Court. The Court concluded that the immunity provided by the Territory law did indeed constitute a reasonable excuse for the failure to comply with the subpoena.
Consequently, the High Court allowed the appeal, setting aside the orders of the Full Court of the Family Court. It ordered that section 97(3) of the Community Welfare Act (NT), in its operation concerning the subpoena, was not rendered inoperative by Commonwealth legislation and was binding on the Family Court by reason of section 79 of the Judiciary Act 1903. The matter was remitted to the Full Court of the Family Court for reconsideration of the timetable for submissions as to costs.
Orders
Orders of the court
1.
Appeal allowed.
2.
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).
3.
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.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
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 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. 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. 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. It follows that the answer to par (b) of the question should have been in the negative.The jurisdiction of the Family Court 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). 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. 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.
Decision
Reasons for decision
GLEESON CJ
GUMMOW J
(dissent)
GAUDRON J
HAYNE J
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 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. 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. 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. 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