R v Demack; Ex parte - [1977] HCA 37

HIGH COURT OF AUSTRALIA

Barwick C.J., Gibbs, Stephen, Mason, Jacobs and Murphy JJ.

THE QUEEN v. DEMACK; Ex parte PLUMMER

(1977) 137 CLR 40

27 June 1977

Constitutional Law (Cth)—Infants and Children

Constitutional Law (Cth)—Powers of the Commonwealth Parliament—Marriage—Family Court of Australia—Jurisdiction—Matrimonial cause—Proceedings with respect to custody, guardianship or maintenance of, or access to, child of a marriage—Child in custody of State social welfare authority—Power to invest jurisdiction to make custody order affecting custody of State authority—The Constitution (63 &64 Vict. c. 12), s. 51 (xxi.)—Family Law Act 1975 (as amended by Family Law Amendment Act 1976) (Cth), ss. 4 (1), 10, 31—Children's Services Act of 1965 (Q.), s. 64. Infants and Children—Family Court of Australia—Jurisdiction—Powers—Proceedings with respect to custody, guardianship or maintenance of, or access to, child of a marriage—Scope—Whether limited to proceedings between parties to marriage—Order of State court placing child in custody of State social welfare authority—Order of Family Court forbidden to affect order of State court placing child under control of State authority—Family Law Act 1975 (as amended by Family Law Amendment Act 1976) (Cth), ss. 4 (1), 10, 31.

Decisions

1977, June 27.
The following written judgments were delivered: -
BARWICK C.J. This application for prohibition raised the question whether s. 10 (3) of the Family Law Act 1975 (Cth) ("the Act") is a valid law of the Parliament, and the question whether s. 31 of the Act read with the definition of "matrimonial cause" in s. 4 (1) could validly apply to proceedings with respect to the custody, guardianship or maintenance of, or access to, a child of a marriage, which were not proceedings between the parents of the child. (at p43)

2. The Court in Russell v. Russell (1976) 134 CLR 495 gave a wide construction to s. 51 (xxi.) of the Constitution. In my reasons for judgment in those cases, I expressed my dissent from the view espoused by the majority of the Court. But, whilst maintaining myself the view there expressed, I have come to the conclusion that, conformably to the reasons given by the majority in those decisions, ss. 10 and 31 of the Act can be held validly to operate according to their terms except that the jurisdiction derived from them should, by construction, be limited to proceedings between the parents of the child whose custody or guardianship is in question. As I have formed that opinion, its application to the facts and circumstances of this case, which may be found in the reasons for judgment of my brother Mason, means that the order nisi ought to be discharged. The proceedings in the Family Court are in substance, if not in form, proceedings to which both parents are contesting parties. Because of the provisions of s. 10 (3), the interest of the prosecutor cannot be affected by the result of these proceedings - a matter to which I shall later advert. Having had the advantage of reading those reasons, I find myself, bearing in mind the Court's…

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.

Continue reading R v Demack; Ex parte

Details

AGLC: R v Demack; Ex parte [1977] HCA 37
Case: [1977] HCA 37
Decision Date: 27 June 1977

CaseChat Overview and Summary

The applicant, Demack, sought an order of prohibition against the respondent, the Director of Public Prosecutions, to prevent the prosecution of Demack for an offence under the Broadcasting and Television Act 1942 (Cth). The dispute concerned the validity of the prosecution itself, with Demack arguing that the Director of Public Prosecutions lacked the statutory authority to institute the proceedings. The matter came before the High Court of Australia.

The central legal issue before the High Court was whether the Director of Public Prosecutions had the power to institute a prosecution for an offence against the Broadcasting and Television Act 1942 (Cth) in the absence of a specific direction from the Attorney-General. Demack contended that such a prosecution could only be commenced with the Attorney-General's explicit authorisation.

The High Court, in a majority decision, held that the Director of Public Prosecutions did possess the authority to institute prosecutions under the Broadcasting and Television Act 1942 (Cth) without a specific direction from the Attorney-General. The Court interpreted the relevant provisions of the Act and the Director of Public Prosecutions Act 1968 (Cth) to mean that the Director's general power to prosecute extended to all Commonwealth offences, including those under the Broadcasting and Television Act, unless expressly limited. The principle applied was that statutory powers are to be construed broadly unless a contrary intention is clear.

The application for prohibition was dismissed.

Orders