R v Humby; ex parte Rooney

[1973] HCA 63

HIGH COURT OF AUSTRALIA

. McTiernan, Menzies, Gibbs, Stephen and Mason JJ.

THE QUEEN v. HUMBY; Ex parte ROONEY.

(1973) 129 CLR 231

21 December 1973

Constitutional Law (Cth)—Matrimonial Causes

Constitutional Law (Cth)—Divorce and matrimonial causes—Decision that jurisdiction to hear matrimonial causes exercisable only by constituent members of Supreme Court of State—Decrees and orders of other officers of court invalid—Remedial legislation—Rights, liabilities, obligations and status of individuals declared to be and always to have been the same as if purported decrees made by judge of Supreme Court—Validity—Whether interference with constitution of State Court—Usurpation of judicial functions by Parliament—Separation of powers—Court empowered to order payments of maintenance to be made to "public authority"—Whether includes State public authority—Mandatory or enabling—Validity—Discrimination against State—Imposition of burden on State—The Constitution (63 &64 Vict., c. 12), s. 51 (xxii.)—Matrimonial Causes Act 1959 (Cth), s. 87 (1) (f), (g)*—Matrimonial Causes Act 1971 (Cth).** Matrimonial Causes—Federal jurisdiction vested in Supreme Court of State—Order for maintenance of children made by Master of Court—No jurisdiction—Remedial legislation—Rights, liabilities, obligations and status of individuals declared to be and always to have been the same as if purported decrees made by judge of Supreme Court—Court empowered to order payments of maintenance to be made to "public authority"—Whether State public authority obliged to accept payments—Validity—The Constitution (63 &64 Vict., c. 12), s. 51—(xxii.)—Matrimonial Causes Act 1959 (Cth), s. 87 (1) (f), (g)—Matrimonial Causes Act 1971 (Cth). *Section 87 (1) of the Matrimonial Causes Act 1959 (Cth) so far as material provides: "The Court, in exercising its powers under this Part, may do any or all of the following: " ... (f) order that payments be made direct to a party to the marriage, or to a trustee to be appointed or to a public authority for the benefit of a party to the marriage; (g) order that payment of maintenance in respect of a child be made to such person or public authority as the court specifies: ..." **Infra, pp. 238-239.

Decisions

December 21.
The following written judgments were delivered:-
McTIERNAN J. The order nisi granted in this matter was granted by the Supreme Court of South Australia. Upon the return of the order before the Full Court the learned judges considered that the order nisi raised inter se questions which resulted in its removal into the High Court. An order was made by the Chief Justice that the order nisi be argued before the Full Court of the High Court. The applicant in the matter is the defendant in proceedings in a court of summary jurisdiction of the State of South Australia. The respondents in the matter are the special magistrate before whom the hearing of the proceedings commenced, and the complainant who instituted the proceedings. (at p236)

2. The complaint is headed "Community Welfare Act, 1972" (this is an Act of the State of South Australia), and concludes with a reference to s. 169 of this Act. This is a penal provision for the enforcement of a "maintenance order" made under the Act. First it is averred in the complaint that on 30th March 1962 the Supreme Court of South Australia, pursuant to the provisions of the Matrimonial Causes Act 1959 (Cth), ordered the defendant to pay a certain weekly sum for the maintenance of his children. Secondly, it is averred, following the language of s. 169 (1) that the defendant disobeyed the Court's order and that arrears of maintenance are due and payable. The marriage of the defendant with the mother of the children was dissolved at the time the order was made. It was dissolved on the petition of the defendant. Section 84 (1) of the Matrimonial Causes Act 1959 provides, "Subject to this section, the court may, in proceedings with respect to the maintenance of a party to a marriage, or of children of the marriage, other than proceedings for an order for maintenance pending the disposal of proceedings, make such order as it thinks proper, having regard to the means, earning capacity and conduct of the parties to the marriage and all other relevant circumstances." It appears that the order for the payment of maintenance for the children of the marriage was made by the Master of the Supreme Court of South Australia in accordance with the practice of the Court at the time. (at p237)

3. Proceedings under s. 84 are a "matrimonial cause" as defined by s. 5 (1) of the Matrimonial Causes Act 1959. The Master's order provides that all payments under it be made to the "Children's Welfare and Public Relief Board at Adelaide on behalf of the said defendant". Under s. 87 (1) (g) of the Act the Court may in exercising its power under s. 84 (1) order that payment of maintenance in respect of a child be made to such person or public authority as the Court specifies. The Board specified by the Master was an instrumentality of the Government of the State of South Australia. (at p237)

4. In the case, Knight v. Knight (1971) 122 CLR 114 , the High Court of Australia decided that the jurisdiction vested in the Supreme Court of South Australia by s. 23 of the Matrimonial Causes Act 1959 may be exercised only by the judges of the Supreme Court of that State, and further, that the Master of the Supreme Court of South Australia, although an officer of that Court authorized by legislation of the State to exercise part of the jurisdiction of the Supreme Court, is not a judge or member of it. Following the decision in Knight v. Knight (1971) 122 CLR 114 , the Matrimonial Causes Act 1971 was enacted by the Australian Parliament. This is an Act - "Relating to certain Purported Decrees under the Matrimonial Causes Act 1959 or under that Act as amended". Section 3 reads - "In this Act, 'the Matrimonial Causes Act' means the Matrimonial Causes Act 1959 and includes that Act as amended". Section 4 reads - "This Act is incorporated, and shall be read as one, with the Matrimonial Causes Act". Section 5 (1) (omitting what is not material in this matter), provides - that this section has effect in any case in which, before the commencement of the Act - an officer of the Supreme Court of a State, purported to make a decree (in this Act referred to as "the purported decree"). "Decree" in this sub-section includes "order", Matrimonial Causes Act 1959, s. 5 (1). Section 5 (2) need not be referred to. The material words of s. 5 (3) are as follows: "The rights, liabilities, obligations ... of all persons are by force of this Act, declared to be, and always to have been, the same as if - (a) in the case of a purported decree made by an officer of the Supreme Court of a State ... - the purported decree had been made by the Supreme Court of that State constituted by a single Judge." The remaining provisions of s. 5 are as follows: "(4.) All proceedings, matters, decrees, acts and things taken, made or done, or purporting to have been taken, made or done, under the Matrimonial Causes Act or any other law (whether of the Commonwealth or of a State or Territory of the Commonwealth) in relation to a party to the proceedings in which the purported decree was made are, by force of this Act, declared to have the same force and effect after the commencement of this Act, and to have had the same force and effect before the commencement of this Act, as they would have, or would have had, if the purported decree had been made as mentioned in the last preceding sub-section." "(5.) The Matrimonial Causes Act and the rules in force under that Act have effect as if - (a) a document embodying the purported decree were a document embodying a decree; and (b) a copy of a document embodying the purported decree were a copy of a document embodying a decree." The words "an officer of the Supreme Court of a State" in s. 5 (1) are applicable to the Master of the Supreme Court of South Australia who made the order for maintenance, dated 30th March 1962. The order is "a purported decree made by an officer of the Supreme Court of a State" to which s. 5 (3) (a), (4) and (5) are applicable. (at p238)

5. The subjects of the legislative powers of the Parliament include - marriage, divorce and matrimonial causes, s. 51 (xxi.) (xxii.). A ground upon which it is contended for the applicant that prohibition or certiorari should go is that the Matrimonial Causes Act 1971 is beyond the powers of the Parliament and therefore invalid. It is clear that the question whether the court of summary jurisdiction has jurisdiction to hear and determine the complaint should be decided in favour of the applicant, if the Matrimonial Causes Act 1971 is not a valid law. The word "causes" in the expression "matrimonial causes" in placitum (xxii.) extends to the classes of proceedings set out in s. 5 (1) of the Matrimonial Causes Act 1959 under the expression "matrimonial cause". The proceedings in which the Master made the "purported decree" sought to be enforced against the applicant were a matrimonial cause. The object of the Matrimonial Causes Act 1971 is to give binding force of a legislative nature to a "purported decree". The Act accomplishes such an object and does so without encroaching on the realm of judicial power. It does not aim at establishing a "purported decree" as a judicial decree or order. In my opinion the Matrimonial Causes Act 1971 is a valid law. (at p239)

6. The order of the Master is attacked upon a ground which assumes the validity of the Matrimonial Causes Act 1971. The order provides that all payments of maintenance be made to the Children's Welfare and Public Relief Board at Adelaide on behalf of the defendant. This Board was an instrumentality of the Government of the State of South Australia. Its successor has the same relationship to the Government of the State. Section 87 (1) (g) of the Matrimonial Causes Act 1959, as stated above, provides that the Court in the exercise of its powers to make orders for payment of maintenance, may order that payment of maintenance in respect of a child be made to such person or public authority as the Court specifies. The question whether the Parliament may consistently with the spirit of the Constitution make such an order affecting a "public authority" of a State was raised by counsel for the applicant as a matter impugning the validity of the Master's order which is in question. In my opinion s. 87 (1) (g) may reasonably be construed as implying a condition that the Court is not empowered to specify a person without his consent or to specify a "public authority" without the consent of the Government to which the "public authority" belongs. There is no ground for challenging the validity of s. 87 (1) (g) or of the direction made by the order in question for payment of maintenance. (at p239)

7. A court of summary jurisdiction of a State derives jurisdiction to enforce an order for payment of maintenance made under the Matrimonial Causes Act 1959 or under that Act as amended from s. 105 of that Act. The question whether a "purported decree" for payment of maintenance which is made binding by the Matrimonial Causes Act 1971 is within the scope of s. 105 was not raised before us. (at p239)

8. In my opinion the order nisi for prohibition or certiorari cannot be made absolute upon the ground that the Matrimonial Causes Act 1971 or s. 87 (1) (g) of the Matrimonial Causes Act 1959 is not a valid law. The order nisi should be remitted to the Supreme Court of South Australia. (at p240)

MENZIES J. I have had the advantage of reading the judgment of Stephen J. I agree with it and with the order which he proposes. (at p240)

GIBBS J. I have had the advantage of reading the judgments prepared by my brother Stephen and my brother Mason. For the reasons which they have given, I am of the opinion that the provisions of the Matrimonial Causes Act 1971 (Cth) are a valid exercise of the powers given to the Parliament of the Commonwealth by s. 51 (xxii.) of the Constitution and do not infringe Ch. III of the Constitution. I further agree that s. 87 (1) (f) and s. 87 (1) (g) of the Matrimonial Causes Act 1959 (Cth) (as amended) empower a court, in exercising its powers under Pt VIII of that Act, to order that payments be made to a public authority of a State but do not impose on any such public authority an obligation to assume the function of receiving such payments unless it is willing to do so, and that so construed the provisions are validly enacted. The present case, therefore, does not call for any consideration of the question, discussed in Victoria v. The Commonwealth (1971) 122 CLR 353 , of the implied limitations on the power of the Commonwealth to make laws imposing liabilities on agencies of the States. Clearly there can be no constitutional objection to a law, made within one of the powers enumerated in s. 51, which entrusts functions to a State instrumentality which is willing to exercise them - the Constitution was certainly not intended to inhibit co-operation between the Commonwealth and the States and their respective agencies. (at p240)

2. I agree that the order nisi should be discharged in so far as it is based on grounds 1 (b) and 2, and that the matter should be remitted to the Supreme Court of South Australia to consider grounds 1 (a) and 1 (c) which do not give rise to constitutional issues. (at p240)

STEPHEN J. This is an application for prohibition or for certiorari, removed to this Court from the Supreme Court of South Australia pursuant to s. 40A of the Judiciary Act 1903-1969 (Cth). The applicant is defendant to proceedings instituted in a court of summary jurisdiction in Adelaide by Elton Bryan Claessen, an officer of the Department of Community Welfare of that State, charging him with non-compliance with an order for the payment of weekly amounts for the maintenance of the two children of his marriage, now dissolved, to his former wife, Roma Rooney. He contends upon a variety of grounds that prohibition or certiorari should go to prohibit further proceedings before the respondent, a special magistrate, or to remove the proceedings into the Supreme Court, there to be quashed. (at p241)

2. Of those grounds several are said to raise constitutional issues of an inter se character. Before turning to such of the grounds of the applicant's order nisi as seem to raise a constitutional issue, I will refer briefly to the first ground in the order nisi, appearing as par. 1 (a). (at p241)

3. This ground does not, on its face, appear to raise any constitutional question; it asserts lack of jurisdiction in the special magistrate on the ground that the complaint is not one to which s. 169 of the Community Welfare Act 1972 (S.A.) applies because

"(a) The maintenance orders provided for in the said section are those made pursuant to the provisions of Part VI of the said Act or as a consequence of the reciprocal enforcement of orders made elsewhere than in South Australia as provided for in the said Part."

Here the maintenance order purports to have been made under the Matrimonial Causes Act 1959 (Cth). Counsel for the applicant not having discussed the meaning and content of this ground in his opening, the learned Solicitor-General for South Australia, appearing for the complainant, Claessen, conjectured, in the course of his submissions, that there might be concealed within its terms certain constitutional issues and these he shortly discussed. In reply counsel for the applicant expressly disclaimed for this ground any constitutional content, saying that it was concerned only with the true construction of s. 169 of the Community Welfare Act. Accordingly I pass now to consider other grounds set out in the order nisi. (at p241)

4. Ground 1 (b) asserts a lack of jurisdiction in the special magistrate, the complaint not being one within s. 169 of the Community Welfare Act because

"(b) Alternatively the maintenance order sought to be enforced was made by the Master of the Supreme Court of South Australia who was not at the time of the making of the order a constituent member of that Court and could not exercise federal jurisdiction vested in the Supreme Court of South Australia by s. 23 (2) of the Matrimonial Causes Act, 1959, as amended, of the Commonwealth of Australia and that the said order is not validated by s. 5 (4) of the Matrimonial Causes Act, 1971."

It is common ground that the order for maintenance was made by the Master of the Supreme Court of South Australia and was made without jurisdiction - Knight v. Knight (1971) 122 CLR 114 . The only matter in debate was that referred to in the last phrase of this ground, which asserts that the relevant maintenance order was not "validated" by the relevant provisions of the 1971 amendment to the matrimonial causes legislation of the Commonwealth. (at p242)

5. Section 5 of the Matrimonial Causes Act 1971, after providing in sub-s. (1) that it applies in any case in which an officer or commissioner of a State Supreme Court has in the past purported to make a decree judgment or order (referred to as "the purported decree") in proceedings under the principal Act of 1959, provides by sub-ss. (3) and (4) as follows:

"(3) The rights, liabilities, obligations and status of all persons are, by force of this Act, declared to be, and always to have been, the same as if - (a) in the case of a purported decree made by an officer of the Supreme Court of a State other than a purported decree to which the next succeeding paragraph applies - the purported decree had been made by the Supreme Court of that State constituted by a single Judge; (b) in the case of a purported decree made by an officer of a Supreme Court of a State, being a decree that was varied on appeal by the Supreme Court of that State constituted by a single Judge - the purported decree as so varied had been made by the Supreme Court of that State as so constituted; and (c) in the case of a purported decree made by a commissioner referred to in paragraph (b) of subsection (1) of this section - the purported decree had been made by the Supreme Court of South Australia constituted by a single Judge. (4) All proceedings, matters, decrees, acts and things taken, made or done, or purporting to have been taken, made or done, under the Matrimonial Causes Act or any other law (whether of the Commonwealth or of a State or Territory of the Commonwealth) in relation to a party to the proceedings in which the purported decree was made are, by force of this Act, declared to have the same force and effect after the commencement of this Act, and to have had the same force and effect before the commencement of this Act, as they would have, or would have had, if the purported decree had been made as mentioned in the last preceding subsection." (at p242)

6. Neither of these sub-sections purports to effect a "validation" of purported decrees and ground 1 (b) of the order nisi, and the argument of counsel for the applicant in support of that ground, is mistaken in supposing that it does. That misconception infects each of the submissions by means of which the applicant sought to support this ground. (at p243)

7. What the two sub-sections do is this: sub-s. (3) declares the rights, liabilities, obligations and status of individuals to be and always to have been the same as if purported decrees had in fact been made by a single judge of a Supreme Court. It does not deem those decrees to have been made by a judge nor does it confer validity upon them; it leaves them, so far as their inherent quality is concerned, as they were before the passing of this Act. They retain the character of having been made without jurisdiction, as was decided in Knight v. Knight (1971) 122 CLR 114 ; as attempts at the exercise of judicial power they remain ineffective. Instead, the sub-section operates by attaching to them, as acts in the law, consequences which it declares them to have always had and it describes those consequences by reference to the consequences flowing from the making of decrees by a single judge of the Supreme Court of the relevant State. (at p243)

8. Sub-section (4) deals similarly with all proceedings, matters, decrees, acts and things affecting a party to proceedings in which a purported decree was made. It does not validate them but instead attaches to them, retrospectively, the same force and effect as would have ensued had the purported decree been made by a judge of a Supreme Court. (at p243)

9. The applicant contends that sub-s. (4) is ultra vires the Commonwealth Parliament, both because it is not within any grant of power conferred by s. 51 (xxii.) of the Constitution and because it involves the legislature in an exercise of and interference with the judicial power. It is also said that the sub-sections purport to effect an alteration in the actual composition of State Supreme Courts. (at p243)

10. Each of these contentions is, I think, based upon the erroneous view that the sub-sections are concerned to validate orders made by Masters or commissioners by deeming them to have been orders made by judges. Once the true effect of the sub-sections is appreciated these attacks on their validity may be seen to be misconceived. (at p243)

11. It was conceded by counsel for the applicant that it would be within power for the legislature, under s. 51 (xxii.), to provide for divorce without recourse to a judicial proceeding. It is equally within power to legislate in respect of ancillary relief in terms that do not involve a determination by means of a judicial proceeding. This is, in effect, what sub-s. (3) does, it takes the outcome of a non-judicial proceeding, before a Master or commissioner, and says of it that it shall have particular consequences, those consequences being identified by reference to the consequences of an order of a properly constituted judicial tribunal exercising jurisdiction in a matrimonial cause. Just as it would be open to the legislature to provide for a non-judicial form of divorce proceedings and to describe the outcome of such proceedings by reference to what is the result of a decree absolute under the present judicial procedure for dissolution of a marriage, so too it is within the power conferred by s. 51 (xxii.) to enact s. 5 of the Matrimonial Causes Act 1971. (at p244)

12. My earlier analysis of the effect of s. 5 (3) and (4) disposes also of the two other contentions urged in support of ground 1 (b) of the order nisi. The section is not concerned with any purported exercise of judicial power; its only connexion with that subject matter is the wholly innocent one of using the outcome of the exercise of judicial power, the resultant decree or order and its effect, as descriptive of the effect which it gives to the non-judicial proceedings, the purported decrees, with which it is concerned. Likewise there is no question of seeking to intrude into the field of the constitution of the Supreme Courts of the States; their constitution is in no way affected, instead the acts of officers of those Courts, who have been held not to be constituent members of the Court, have had a particular effect assigned to them. (at p244)

13. In my view par. 1 (b) discloses no grounds for the making of the orders sought by the applicant. (at p244)

14. Paragraph 2 of the order nisi states two grounds of attack upon the special magistrate's jurisdiction. It reads

"2. His Honour does not have jurisdiction to entertain the said complaint because either: (a) the subject maintenance order, without authority under the provisions of the said Matrimonial Causes Act, seeks to create an obligation upon the Children's Welfare and Public Relief Board, at Adelaide to be a trustee under the direction of a federal authority, or (b) the subject complaint seeks to enforce an order, made under federal power, to compel an authority which exercises the power of the Crown in right of the State of South Australia, namely the Children's Welfare and Public Relief Board at Adelaide to carry out the trusts created by the purported order."

The order, non compliance with which is alleged in the complaint here in question, provided that all payments of maintenance thereunder should be made to the Children's Welfare and Public Relief Board at Adelaide for the benefit of the defendant, the former wife of the present applicant. That Board was constituted under Pt II of the Maintenance Act, 1926 (S.A.) and what is, for these purposes, its successor, the Department of Community Welfare, is a South Australian department of State. It is said that if s. 87 (1) (f) of the Matrimonial Causes Act applies to these entities there is involved an attempted imposition by the Commonwealth Parliament of an onerous duty upon an instrumentality of a State, something for which there is no constitutional sanction. Does, then, the sub-section apply to these entities? (at p245)

15. As a matter of construction "public authority" in s. 87 (1) (f) does, I think, aptly describe both the original Board and its successor, the Department of Community Welfare. That each is a public authority in the ordinary sense of that term is not, I think, disputed; what is said, however, is that s. 87 (1) (f) should be interpreted as referring only to Commonwealth public authorities and not to public authorities of a State. It was said by counsel for the applicant that the matter was essentially one of first impression; my first and remaining impression is that "public authority" in s. 87 (1) (f) includes public authorities of a State. The ordinary meaning of the term in itself justifies no limitation to Commonwealth instrumentalities. The context of s. 87 (1) (f), the terms of s. 105 of the Act and the whole history of the role which the various organs of the several States have played and still play in the field of maintenance and custody in Australia is strongly opposed to such a construction. The terms of s. 21 of the Acts Interpretation Act 1901-1966 (Cth), even were it to be found applicable to the phrase "public authority", is expressed to be subject to any contrary intention. I accordingly conclude that each of the Board and the Department is a "public authority" within s. 87 (1) (f). (at p245)

16. That being so, the constitutional objection is said to arise because by par. (f) of s. 87 (1) the Commonwealth Parliament has authorized the imposition by courts exercising federal jurisdiction of obligations upon instrumentalities of the State. (at p245)

17. No doubt once a public authority undertakes the role of recipient of maintenance payments under an order made pursuant to s. 87 (1) (f), it is under some duty to apply that money "for the benefit of a party to the marriage", although it may well be that that duty is not readily enforceable. However it appears to me to be an error to read par. (f) as attempting to impose, either directly of its own force or indirectly through the medium of orders of courts made under the power it confers, any obligation whatever upon the public authorities to which it refers. (at p246)

18. The paragraph is, I think, no more concerned to impose such an obligation than it is to impose one upon any member of the public at large who happens to be named without his consent as a trustee in an order of a Court made under that paragraph. Section 87 (1) is certainly concerned with the authorization of orders which impose obligations but it is upon the parties to a matrimonial cause that those obligations may be imposed and not third parties. The terms of par. (f) are, in my view, enabling in the sense that they empower a Court to name, in its order, a particular public authority as the recipient to which payments ordered to be made under Pt VIII of the Matrimonial Causes Act are to be paid; it is no doubt expedient expressly to confer such a power, just as it is to confer the alternative power to order payment to be made "to a trustee to be appointed". But these grants of power do not carry with them any implied power to compel a public authority to act as the recipient of such payments or to compel an individual to accept appointment as trustee. (at p246)

19. It follows that the constitutional point said to arise under ground 2 of the order nisi does not in fact, in my view, arise and it accordingly calls for no further consideration. (at p246)

20. The matter of statutory interpretation raised by par. 1 (a) of the grounds stated in the order nisi was not fully argued before us; the question involved in par. 1 (c) was left unargued, it apparently involves matters of fact. It is appropriate that these two matters should now go back to the Supreme Court of South Australia for determination. The order nisi should, in my view, otherwise be discharged. (at p246)

MASON J. In Kotsis v. Kotsis (1970) 122 CLR 69 and Knight v. Knight (1971) 122 CLR 114 this Court held that the jurisdiction to hear and determine matrimonial causes invested in the Supreme Courts of the States by s. 23 (2) of the Matrimonial Causes Act 1959-1966 (Cth) could not be exercised by an officer of a Supreme Court of a State who was not a constituent member of the Court. In the first of the two cases it was held that a Deputy Registrar of the Supreme Court of New South Wales had no jurisdiction to hear an application for the payment of interim costs in a matrimonial cause. In the second case it was held that the Master of the Supreme Court of South Australia had no jurisdiction to hear an application for maintenance pending the hearing of a suit for dissolution of marriage. (at p246)

2. The effect of the decisions was that a decree or order made by officers who were not members of a Supreme Court was invalid. In order to remedy this situation the Commonwealth Parliament enacted the Matrimonial Causes Act 1971, s. 5 (3) and (4) of which gave effect to a purported decree made by an officer of the Supreme Court of a State. (at p247)

3. In terms, these provisions applied to a purported decree made by the Master of the Supreme Court of South Australia on 30th March 1962 in a proceeding under the Matrimonial Causes Act in which the respondent William Keating Rooney was the plaintiff. By the decree the respondent was ordered to make payments to the applicant for the maintenance of the two children of the marriage and it was ordered that the payments of maintenance should be made "to the Children's Welfare and Public Relief Board at Adelaide on behalf of the" applicant. (at p247)

4. On 9th November 1972 an officer of the Department of Community Welfare (S.A.) laid a complaint against Rooney under s. 169 of the Community Welfare Act, 1972 (S.A.) alleging that he had failed to comply with the payments of maintenance provided for by the order of 30th March 1962. An order nisi for prohibition and, in the alternative, for certiorari was granted. The grounds taken included the ground that the Master's order of 30th March 1962 was invalid, the Master not being a constituent member of the Supreme Court, and that the order was not validated by s. 5 (4) of the Matrimonial Causes Act 1971. On the return of the order nisi the Full Court of the Supreme Court of South Australia considered that a question as to the limits inter se of the constitutional powers of the Commonwealth and the States had arisen and declined to proceed further with the matter. (at p247)

5. The correctness of this conclusion was challenged by counsel for Rooney when the matter came before this Court. We indicated that we were of the opinion that an inter se question had arisen and that the matter was properly before us. This conclusion was inevitable once it appeared that there was an attack on the validity of s. 5 (3) and (4) of the 1971 Act on the ground that it was ultra vires the power conferred by s. 51 (xxii.) and inimical to the provisions of Ch. III of the Constitution and a further attack on the validity of s. 87 (1) (f) of the Matrimonial Causes Act 1959 on the ground that the Commonwealth Parliament could not validly impose an obligation on a public authority of the State to accept payments for the benefit of a child of the marriage. (at p247)

6. The principal submission was directed to the 1971 Act. The submission was based partly on the provisions of s. 51 (xxii.) and partly on restrictions arising from Ch. III of the Constitution. It is convenient to begin with s. 51 (xxii.) because it was argued that s. 5 (3) exceeded the legislative power with respect to "divorce and matrimonial causes". (at p248)

7. The legislative power with respect to divorce is not confined to authorizing a dissolution of the matrimonial relationship by means of a judicial determination in a judicial proceeding. The old procedure of dissolving a marriage by private Act of Parliament is a clear demonstration that the concept of divorce, as traditionally understood, is not limited to a termination of the matrimonial relationship, with consequential provision for the rights and obligations of the parties to the marriage, by means of a judicial determination in a judicial proceeding. It is for Parliament in the exercise of the power to select the means by which the marriage is to be dissolved and the means by which consequential provision is to be made respecting the rights and obligations of the parties. Subject only to the limitations to be discovered in Ch. III, Parliament may provide that a designated tribunal or officer may dissolve a marriage and define the consequential rights and obligations of the parties, or give an invalid decree or order made by an officer of the Supreme Court the same effect it would have had, had it been made by the Court or a judge thereof. In my view s. 5 of the 1971 Act is not ultra vires the legislative power with respect to "divorce and matrimonial causes". (at p248)

8. Next, it was argued that s. 5 (3) and (4) validated decrees made by officers who were not constituent members of the State Supreme Courts and, to that extent, did not comply with s. 77 (iii) of the Constitution which enables Parliament to invest federal jurisdiction in State courts, but not otherwise. It was submitted that the judicial power of the Commonwealth cannot be reposed, either prospectively or retrospectively, in an officer who is not a constituent member of a State court. (at p248)

9. But s. 5, as it seems to me, does not so provide. Section 5 (3) says that the rights, liabilities, obligations and status of persons affected "are, by force of this Act, declared to be, and always to have been, the same as if" the purported decree or order had been made by the Supreme Court or a judge of that Court (as the case may be). It is the sub-section itself which defines the rights of the parties and it does so by reference to what their rights would have been had the decree or order been made, not by an officer, but by the Court. Sub-section (4) then gives to a purported decree the same effect. Sub-section (4) gives the decree an operation which it would not have had otherwise. In that sense it may be said that the decree is "validated"; it has a valid operation whereas before it had none. But the sub-section does not attempt to validate the decree as a judicial determination. It lacked that character when it was pronounced and it does not acquire that character merely because the statute attributes to it the effect it would have had, had it been a judicial determination. (at p249)

10. There are cases in which it has been held that to authorize a Registrar to make a curial order involves him in the exercise of judicial power. That is because the nature of the order which he is empowered to make tends to show that his function is judicial in character (see Reg. v. Davison (1954) 90 CLR 353 ). In Bond v. George A. Bond &Co. Ltd. (1930) 44 CLR 11, at p 20 , Rich and Dixon JJ., referring to s. 24 (2) of the Bankruptcy Act 1924-1929 which provided that the orders of a Registrar should be as valid and effectual, and might be enforced, as if they were orders of a court, said that there was much to be said for the view that the section was ultra vires as "an attempt ... to authorize the Registrar to exercise powers which belong to the Court and to attach to his acts and orders the same efficacy and the same consequences as the law gives to judicial acts and orders". There, again, the statute empowered a Registrar to make certain orders, subject to the directions of the court, and s. 24 (2) was thought to have significance in that it tended to show that the functions committed to a Registrar involved the exercise of judicial power. (at p249)

11. But "the exercise of this power does not begin until some tribunal which has power to give a binding and authoritative decision ... is called upon to take action" (Huddart, Parker &Co. Pty. Ltd. v. Moorehead, per Griffith C.J. (1909) 8 CLR 330, at p 357 ). The Matrimonial Causes Act before its amendment by the 1971 Act made no attempt to confer on a Master or officer of a Supreme Court of a State power to make such a decision. Nor, so it seems to me, does the Act of 1971 seek to confer such authority retrospectively. Section 5 recognizes that the purported decree is of no force and effect; sub-s. (3) then proceeds to declare the rights of the parties and sub-s. (4) gives to the decree the effect it would have had, had it been a judicial order, not for the purpose of making it a judicial determination, but so as to bring the rights declared by sub-s. (3) within the scheme and provisions of the Matrimonial Causes Act. (at p249)

12. It was then argued that s. 5 (3) and (4) constitute a usurpation by the Parliament of the judicial power of the Commonwealth which is vested by Ch. III in the federal Judicature. "Usurpation of the judicial power" is, as the judgment of the Judicial Committee in Liyanage v. The Queen (1967) 1 AC 259, at pp 289-290 , makes plain, a concept which is not susceptible of precise and comprehensive definition. In the context of the Commonwealth Constitution, it must signify some infringement of the provisions which Ch. III makes respecting the exercise of the federal judicial power. What that infringement is in the instant case, the argument did not condescend to make clear. (at p250)

13. It is plain enough that the circumstance that a statute affects rights in issue in pending litigation has not been thought to involve any invasion of the judicial power. In Nelungaloo Pty. Ltd. v. The Commonwealth (1948) 75 CLR 495, esp at pp 503-504 and 579-580 , the validity of the Wheat Industry Stabilization Act (No. 2) of 1946 was upheld, notwithstanding that it validated an order for the acquisition of wheat the validity of which was a matter in issue in proceedings pending at the time when the statute was enacted. In that case the statute affected antecedent rights in issue in the litigation. Here the rights declared or created by the statute, although in issue in pending proceedings, were not rights antecedently existing; they are of a kind which ordinarily comes into existence by virtue of a judicial determination in a matrimonial cause. In my view there is not enough in these circumstances to support the conclusion that there has been a usurpation of judicial power. Chapter III contains no prohibition, express or implied, that rights in issue in legal proceedings shall not be the subject of legislative declaration or action. (at p250)

14. Support for the conclusion that the legislation was invalid was sought to be derived from Liyanage v. The Queen and from the observation there made (1967) 1 AC, at p 291 : "If such Acts as these were valid the judicial power could be wholly absorbed by the legislature and taken out of the hands of the judges." Suffice it to say that Liyanage v. The Queen (1967) 1 AC 259 was a very different case. The legislation in question was of an unusual character; it constituted a marked interference with the judicial process and circumscribed the judicial function and the discretions incidental to it. (at p250)

15. Here by legislative action the rights of parties in issue in proceedings which resulted in invalid determinations were declared. The rights so declared in form and in substance were the same as those declared by the invalid determinations. But the legislation does not involve an interference with the judicial process of the kind which took place in Liyanage v. The Queen (1967) 1 AC 259 (see Kariapper v. Wijesinha (1968) AC 717 ). (at p250)

16. With respect to s. 87 of the Matrimonial Causes Act I have had some doubt as to whether the order which is attacked was made in seeking to exercise the power conferred by s. 87 (1) (f) or that conferred by s. 87 (1) (g). I am disposed to think that the order falls more precisely within s. 87 (1) (f), but in the present context it matters not which of the two powers is in question because the arguments addressed to the Court have equal application to each source of power. I agree with what Stephen J. has said as to the construction of s. 87 (1) (f) and I need say no more than that. (at p251)

17. The rule nisi for prohibition and certiorari should be discharged so far as it is based on the grounds 1 (b) and 2 (a) and (b) of the order nisi granted on 9th March 1973. (at p251)

18. Counsel for Rooney indicated that, apart from the grounds taken before us, there were other grounds (not of a constitutional character) to be argued in support of the application for prohibition and certiorari. The cause should be remitted to the Supreme Court of South Australia to be dealt with in the light of the conclusion reached by this Court on the grounds which it has considered. (at p251)

Orders

Discharge the order nisi in so far as it is based on grounds 1 (b) and 2.

Order that the cause be remitted to the Supreme Court of South Australia for any necessary determination of the matters raised by grounds 1 (a) and 1 (c) of the order nisi.

No order as to costs.