Secretary Department of Health and Community Services v JWB

[1991] HCATrans 112

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--->'ri»~~----

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Darwin No Dl of 1991

B e t w e e n -

SECRETARY, DEPARTMENT OF HEALTH

AND COMMUNITY SERVICES

Appellant

and

JWB AND SMB

Respondents

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

First Intervener

ATTORNEY-GENERAL OF THE

COMMONWEALTH

Second Intervener

Appeal pursuant to order under

section 95(b) Family Law Act

1975

MASON CJ
BRENNAN J
DEANE J

Marion 140 2/5/91

DAWSON J
TOOHEY J
GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 2 MAY 1991, AT 10.17 AM

(Continued from 1/5/91)

Copyright in the High Court of Australia

MASON CJ: Yes, Mr Solicitor?

MR MASON:  Your Honours, I would wish, firstly, to take you

to the two New South Wales statutes that regulate
this matter to illustrate the way the matter has

been brought, we would say, into the criminal law

of New South Wales and the competing interests that
are involved. Firstly, the Children (Care and

Protection) Act 1987, section 20B:

Special Medical Treatment

A person shall not carry out special medical

treatment on a child who is under the age of

16 years otherwise than in accordance with

this section.

and a "penalty" of "imprisonment". It would

clearly address the medical practitioner in the

scope of its prohibition and there is then an

exception in subsection (2), first in the case of

"urgency" and secondly, if:

the Supreme Court consents to the carrying out

of the treatment.

And in (2A) there is a State prescription of

appropriate criteria to which the supreme court is to be subject before it may give that consent. We

would accept that that power is capable of being

cross-vested in the Family Court, but it would be cross-vested subject to the limitations that have been prescribed in the section. "Special medical treatment" is defined and it includes,

specifically, in paragraph (a):

medical treatment that is intended, or is
reasonably likely, to have the effect of

rendering permanently infertile the person on

whom it is carried out.

Your Honours, that Act, as a whole, is a prescribed

Child Welfare Act within the meaning of section 60 of the Family Law Act and various views have been

expressed by judges of the Family Court to the

effect that that prescription, for the purpose of
section 60H of the Family Law Act, operates to make

the Family Law Act subject to 20B of the Children

(Care and Protection) Act. Now, whilst we would

not wish to concede the contrary, there is a

possibility that that is not so, and if I could

take Your Honours to section 60H of the Family Law
Act.

The prime purpose of section 60H is to deal with child welfare laws and section 60H(l)

Marion 141 2/5/91

withdraws from the jurisdiction of a court having

jurisdiction under this Act the power to:

make an order under this Act in relation to a
child who is in the custody of, or under the

guardianship, care and control or supervision

of, a person under a child welfare law.

It is clear that the main thrust of the exemption

deals with what are called State wards, people who

have been brought into care as a result of the

application of a State law such as the Children
(Care and Protection) Act. There are a number of
provisions in the Children (Care and Protection)

Act, particularly in Part V of that Act, which deal

with what might one might call State wards.

Section 60H(2) - - -

TOOHEY J: Just before you leave subsection (1),

Mr Solicitor, is it the position then that a person

cannot be under the custody of, or under the

guardianship, care and control or supervision of a

person under a child welfare law except by order of

a court?

MR MASON:  Are you asking me about the construction of the

State Act?

TOOHEY J:	No, I am asking about the construction of subsection (1), which could only be answered, I
suppose, by looking at the various child welfare laws.
MR MASON:	Yes.

TOOHEY J: But in other words, could a person be under the

guardianship of someone under a child welfare law

simply because that law asserts a particular

parent, for instance, to be the guardian, or does the child welfare law always presuppose some sort

of intervention by a court?

MR MASON:  Given the terms of section 60H(l), if the

State Act were prescribed and the State Act so

provided, then the power of the Family Court would

have to stand in abeyance to the extent that it

sought to displace that situation.

TOOHEY J: Well, for instance, do the States any longer have

guardianship of infants legislation or is that now

the province of the Family Law Act?

MR MASON:  No, there are still provisions, for example, in

the Testator's Family Maintenance and Guardianship

of Infants Act of New South Wales that deal with

the testamentary guardianship of children, for

example. That Act is not a prescribed child

Marion 142 2/5/91

welfare law so its operation has not been saved. I

am not conceding that it would be inconsistent with

the Family Law Act, but it is not saved by virtue

of section 60H.

TOOHEY J: Yes, thank you.

MR MASON: Section 60H(2) goes on further and says:

Nothing in this Act, and no decree made under

this Act, affects:

(a) the jurisdiction of a court, or the power of an authority, under a child welfare

law to make an order, or to take any

other action, by which a child is placed
in the custody of, or under the
guardianship, care and control or
supervision of, a person;

(b) any such order made or action taken;

(c)	the jurisdiction of a court under a child welfare law to make an order in relation to the maintenance of the child;
(d)	an order of the kind referred to in

paragraph (c); and

(e) the operation in relation to the child of

a child welfare law.

The various judges of the Family Court appeared to

contemplate that section 60H(2)(e) would save 20B

and similar provisions in the Children Care and

Protection Act.

Without rejecting that there is a possibility that that is not correct because of the word "the

child" in E and it may be argued that Eis narrower

in its effect and only picks up the child earlier

referred to who has been brought into care and Eis

only concerned, arguably, with the ancillary

operation of a law which otherwise applies by

virtue of the earlier provisions. I stress I do

not concede that but it is for another day perhaps.

The second State Act which is not a prescribed

welfare law for the purpose of section 60H, so the
point arises in perhaps starker contrast is the
Disability Services and Guardianship Act 1987 -

which has been given to Your Honours. Section 4 of

that Act states some general principles which it

says:

is the duty of everyone exercising functions

under this Act -

Marion 143 2/5/91

to observe. Whilst the principles include the
welfare principle there are statements in the
succeeding paragraphs that stress the freedom of

decision making of these people; the encouragement

to make them self-reliant in their affairs, and so

forth.

Section 49 of the Act constitutes a

guardianship board whose membership is intended to
include specialists with experience in assessing

and treating the type of people who are within the

scope of the legislation.

Part 5 of the Act, which commences at section

32, deals specifically with medical and dental

treatment. Section 32(b) states that:

The objects of this Part are -

inter alia -

to ensure that any medical or dental treatment

that is carried out on such people is carried

out for the purpose only of promoting and

maintaining their health and well-being.

At the bottom of the page "special medical

treatment" is defined in section 33(1) in the same

way as in the earlier State Act. Section 34(l)(a)

states:

(1) This Part applies to a patient -

(a) who is of or above the age of 16 years -

so the interaction with the Family Law Act is

clearly a potential.	Why 16 has been picked out is
not entirely clear.	It may well be that the

notions that were discussed in Gillick's case about

the progressive emancipation of children with

respect to medical decision making may have been an

influencing factor.

Section 35(1) again brings into the realm of

criminal law and addressing the doctor a
prohibition on special medical treatment.

Section 36 provides two exemptions similar in pattern to the earlier Act: emergency and consent of the board.

I draw attention to section 37 which deals

with major medical treatment. That is defined in

section 33. It does not include special medical

treatment, and I wish to draw the contrast between

36 and 37(b) because, with respect to major medical

treatment -

Marion 144 2/5/91

a person responsible for the patient consents

to the carrying out of the treatment -

and thereby enable it to take place; with special

medical treatment no question of consent by the

care giver as being relevant. The only relevant

consent in a non-emergency situation is that of the

board, and sections 44 and 45 address that.

Section 44 provides, in effect, for the

procedure whereby the board may give its consent,

and clearly, as it were, plugs into a range of

factors that may be broader than those within the

scope of the Family Law Act. Section 45(2) states

a criterion similar to that in the Children (Care

and Protection) Act. The consent is not to -

be given unless the Board is satisfied that it
is necessary to carry out the treatment on the patient in order to save the patient's life or

to prevent serious damage to the patient's

health.

As I say, that Act is not prescribed at all. The

jurisdiction of the board is probably capable of

being ultimately cross-vested in the Family Court

by virtue of the provisions in the cross-vesting

scheme that enable the supreme court to lift up a

matter from an inferior court and cross-vest it.	I
leave aside for another day the constitutional aspects of cross-vesting such jurisdiction removed
in that way.

DAWSON J:  You say., Mr Solicitor, every jurisdiction in

Australia has its own laws governing the conduct of

sterilization; do you have the details?

MR MASON:	The schedule that was handed up by the appellant contains a table. Not every jurisdiction does.	In
fact, the Northern Territory has· nothing. They
have got one for adults but nothing for infants.

Your Honours, the question then arises of the

impact of the Family Law Act and the power granted

to the Family Court to make such order as it thinks

fit with respect to the welfare of a child upon

what I will categorize as the criminal law of New

South Wales and other States which is framed in the

way similar to this legislation.

MASON CJ: Before you proceed with that, Mr Solicitor, you

referred to constitutional difficulties in terms of

the application of the cross-vesting legislation to

these provisions. Could you identify the area of

possible difficulty? I am not inviting you to

submit any argument in relation to it but could you

identify the area?

Marion	145	2/5/91
MR MASON:	Yes.	One is the possible question of whether it

is possible to cross-vest State judicial power in a

federal court consistent with Chapter III. The

second is whether the jurisdiction of a State body

which is not a court in a Chapter III sense can by

being lifted up by a State supreme court and then

cross-vested be cross-vested in a Chapter III

court. Those, I perceive are two possible

situations.

MASON CJ: Yes, thank you.

MR MASON:  Your Honours, whether the power given to the

Family Court to make such orders, as it thinks fit,

with respect to the welfare of the child has any

relevant impact upon the sort of legislation I have referred to, depends partly upon constitutional and partly upon questions of interpretation of the

scope of the Family Law Act. We would submit that

although it is apparent that Part VII draws down

upon the marriage power and the Territories power

welfare of the child is at large and in a territorial context, we would say, surely it could

in order to supplement or qualify,
constitutionally, an otherwise untrammelled grant
of jurisdiction to make orders with respect to

welfare, it still does not follow that the Family

not have been contemplated that the power to make

such orders would extend to ordering the release of

a child from prison when he or she has been

imprisoned, or stopping a federal deportation order. So, there must necessarily be, in our

submission, some limitation on the intended scope

quite apart from constitutional factors.

Your Honours, the Watson Committee's Report has been referred to and the second reading speech

as indicative of an intention by addition of the

word "welfare" to vest the parens patriae

jurisdiction in the Family Court. Without

conceding whether in fact it did so, there are

still a number of relevant limitations that would

be inherent in the parens patriae jurisdiction

which are relevant in the present context, in our

submission.

The first broad limitation is that, in our submission, the parens patriae jurisdiction is

subject, in the Family Court's hands, to the

constitutional restraints upon the Family Court's

general jurisdiction, and in a State impacting

context the relevant restraint is to be found

within the marriage placitum and our general

submission is that the marriage power does not

authorize anything that contributes to the welfare

Marion 146 2/5/91

of a child. It is necessarily of narrower scope

than that.

The second necessary limitation in the concept

of welfare is implicit in the very notion of the proper scope of the parens patriae power itself.

The reasons to give it a more limited

interpretation across the board flow, in part, from

what I have said would be the absurdity of finding an intention that the Family Court could order the

release of Northern Territory prisoners and the

absurdity of thinking the Family Court would have

been armed to have interfered with the general

operation of State criminal law, but there are some

more specific limitations inherent in the

parens patriae jurisdiction itself and these we

develop in paragraphs 5 and 6 of the outline of the

submissions.

In Re X, to which I will not take Your

Honours, the passage referred to, that is the case involving the injunction to stop the publication of material which was seen to be detrimental to the

interests of a child who had been made a ward of

the court. The book was going to be published

saying that her father was a rotter and an

injunction was granted. It was held that it was

proper in the exercise of the parens patriae

jurisdiction to have regard to the rights of

freedom of the speech of outside parties. So,

whatever the theoretical scope, there was an

inherent limitation.

But there is a more specific example of that limitation in Re B, (1962) 1 Ch 201, and if I could

take Your Honours to that. A copy of the report

was given to the associates this morning. That was

a case in which a mother steadfastly refused to

send her children to school. She was charged on

two occasions by the local education authority with

breach of the relevant Education Act. She paid the fine and still kept them out of school. The

education authority had under the legislation power

effectively to bring an application that would

result in her being sent to prison if she committed

a third offence, but they chose rather to invoke

the prerogative parens patriae power in an

endeavour to get the children to school and it was

held that it was not appropriate for that to be

done. If I can take you to the judgment of

Lord Justice Pearson at page 222 and 223 - his

appears to be the most convenient way of picking up

a notion common to the three judgments. At the

bottom of page 222, reference is made to a judgment

in Re M, where Lord Evershed stated three

propositions:

Marion 147 2/5/91

(1) The prerogative right of the Queen, as parens patriae in relation to infants within

the realm, is not for all purposes ousted or
abrogated as the result of the exercise of the
duties and powers by local authorities under

the Children Act, 1948: in particular, the

power to make an infant a ward of court by

invocation of section 9 of the Law

Reform ..... ,is unaffected.

(2) But even where a child is made a ward of court ..... the judge in whom the prerogative

power is vested will, acting on familiar

principles, not exercise control in relation
to duties or discretions clearly vested by

statute in the local authority, and may,

therefore, and in a case such as the present

normally will, order that the child cease to

be a ward of court -

Going down to the next paragraph His Lordship said:

The first and second propositions are applicable. Under the first proposition,

wardship jurisdiction of the Chancery Division

still exists, notwithstanding Acts of

Parliament conferring upon local authorities

powers and duties in respect of children, but,

under the second proposition, the effect of

such an Act may by - not, I think, if one

speaks accurately, to restrict the
jurisdiction - but to restrict the scope of
the proper exercise of the jurisdiction. In
the absence of special circumstances, the
court ought not to exercise its power of

control in a sphere of activity which has been

entrusted by statute to a local authority.

A fortiori, we would submit, ought not to exercise

its jurisdiction in a way that would interfere with

the general criminal law.

McHUGH J: But that statement assumes power in the

Family Court to exercise this discretion, that is your statement that you just made.

MR MASON:	My statement in -
McHUGH J:	Your statement that the court ought not to

exercise its discretion in a way, seems to assume

the court does have the power if it wants to.

MR MASON:	No, the way I would put it is to say that if the addition of the word "welfare" was an intention to
pick up the parens patriae jurisdiction, it was to pick it up with its limitations and those
limitations, I accept that this may say, as a

Marion 148 2/5/91

matter of discretion, rather than as a matter of

power, but those limitations contemplate that the

jurisdiction will not be exercised in a way that

will override the general statutory law.

Your Honours, an example of this proposition

may be seen in Public Guardian v MA - I think we

have given the reference near the beginning of
paragraph 6 of the written submission - where

Chief Justice Asche in effect said that the parens

patriae jurisdiction vested in the Family Court

stopped at adulthood, and he said that is what it meant, as it were, in its general connotation and

when vested in the Family Court under the welfare

provision it came across with such a limitation.

Your Honours, in endeavouring to focus on, as

it were, the interaction between the common law

principle which the appellant seeks to have the

court adopt and the power of the Family Court

vested under Part VII of the Family Law Act, much

turns, ultimately, in our submission, upon the way
one characterizes the role of the court in granting

permission for an operation to take place. Perhaps dealing with a unitary system at first, what is the court really doing?

Some assistance can perhaps be seen by looking

at the way the American courts have approached the

matter, and if I could take Your Honours very

briefly to the article called "Involuntary

Sterilization of Mentally Retarded Minors in

Nebraska", 68 Nebraska Law Review 410, because it

contains, in my submission, a useful summary of the

American position. At page 412 and following there

is a discussion of the American approach about the

fundamental right of procreative choice which, of

course, is in a constitutional context but

nevertheless a convenient collection of the cases

whereby that right has been developed.

At 414 and following, however, there is a more

specific discussion of the court approaches,

jurisdictional approaches, to this issue. Firstly,

under a heading "Cases Denying Authorization", it

is stated:

The issue of sterilization of mentally
retarded minors typically reaches the court by
way of petition. Often a parent, guardian, or
the superintendent of an institution will
petition a court to authorize the

sterilization of a mentally retarded minor.

Courts have denied such petitions for one or

more of the following reasons: lack of

jurisdiction; no applicable common-law family

Marion 149 2/5/91

relationship that would allow the parent to

have the child sterilized; and fear of

judicial liability.

And under "Lack of Jurisdiction":

Most of the early cases held that, absent

specific legislative authority, the court was

not the proper forum for authorizing

sterilization.

And I refer Your Honours to footnote 27 where, in

the first case that is mentioned, it was held: inherent equity power of the circuit court

over both incompetents and minors did not

include the power to order a surgical

sterilization.

At the top of the next page:

Although a court of general jurisdiction has

the power to adjudicate all controversies at

law and equity within the legal bounds of

rights and remedies, this was held not to

include authorizing sterilization.

The second reason, on page 416, is headed "No

'Family Relationship' Justification":

In addition to denying requests for

sterilization based on lack of jurisdiction,

courts have also found unpersuasive "family

relationship" arguments grounded in common

law. In A.L. v G.R.H., a mother filed a

complaint seeking a declaration of her right

under the common-law attributes of the parent-

child relationship to have her mentally

retarded son sterilized. The district court

denied her request. The appellate court affirmed, declaring its belief that "the

common law does not invest parents with such

power over their children even though they
sincerely believe the child's adulthood would

benefit therefrom".

That analysis, just pausing there, may have some

bearing upon the constitutional issues which face

the Australian context.

The third reason for denying jurisdiction is

perhaps the least worthy of them all, judicial

liability, and it is stated that some of the

earlier cases refused jurisdiction because the

judges were concerned that they would be sued.	And
at the bottom of page 417 the Sparlanan case is

Marion 150 2/5/91

referred to which was mentioned yesterday. At the

top of 418 there is a passage from the Sparkman

case which seems to have been the springboard for a

more relaxed approach in American courts.

In our view, it is more significant that there

was no Indiana statute and no case law in 1971

prohibiting a circuit court, a court of

general jurisdiction, from considering a

petition of the type presented to the judge.

The statutory authority for the sterilization

of institutionalized persons in the custody of

the State does not warrant the inference that

a court of general jurisdiction has no power

to act on a petition for sterilization of a

minor in the custody of her parents,

particularly where the parents have authority

under the Indiana statutes to "consent to and

contract for medical or hospital care or

treatment of (the minor) including surgery.

Now, it would appear that that Indiana statute is

totally universal in its operation. However, as

the next part of the article goes on to point out,

the Stump case was seen to enliven the courts'

jurisdiction to approve petitions by parents to

sterilize mentally retarded minors and, indeed,

Stump has been interpreted to stand directly for

the proposition that State courts now have the

power to issue orders authorizing sterilization.

Over on page 419 there is a discussion of

other bases - that is apart from Stump - for the

jurisdiction and the first such basis is parens

patriae; I refer in particular to the second

paragraph of the paragraph:

After first identifying the opposing

constitutional rights at stake and finding no

applicable state statutes, the judge -

in Grady -

held that the power to authorize substituted

consent for sterilization was inherent in the

parens patriae jurisdiction of the chancery

court.

Then, two other bases are referred to on page 420

and then the remainder of the article discusses the

question of the standards to be applied.

One short passage in Re F, (1990) 2 AC, at

pages 63 and 64 may, perhaps, be of assistance in

endeavouring to focus upon the precise nature of

the jurisdiction of the Family Court, if any, and

its interaction with the common law rule which the

Marion 151 2/5/91

appellant seeks to persuade you to adopt. At 63G

Lord Brandon was discussing the reservations that

the Court of Appeal had had about giving

declaratory relief in the present case.

His Lordship said:

There can, in my view, be no doubt that

the High Court has jurisdiction, in a case

like the present one, to make a declaration

with regard to the lawfulness of an operation for sterilisation proposed to be carried out. As appears, however, from the passages in the judgments of the three members of the Court of

Appeal which I set out earlier, they all

concluded that procedure by way of

declaration ..... was not a satisfactory

procedure to be adopted. Their grounds of

objection were these. First, that a

declaratlon changes nothing.

And it is that first one that His Lordship

addresses over the page on 64 near B:

With respect to all three members ..... I

do not consider that these objections are well

founded. The first objection, that a

declaration changes nothing would be valid if
the substantive law were that a proposed

operation could not lawfully be performed

without the prior approval of the court. As I

indicated earlier, however, that is not, in my view the substantive law, nor did the Court of

Appeal ..... hold that it was. The substantive

law is that a proposed operation is lawful if

it is in the best interests of the patient,

and unlawful if it is not.

What I would seek to derive from that is that it

may be critical to the question of whether or not
the Family Court has federally vested or

cross-vested jurisdiction to determine how one

characterizes the common law rule which the

appellant seeks to have the court adopt. We would

submit that the characterization of the situation,

at least in a context such as New South Wales, is

that the consent of the parents is an irrelevant

factor; that the operation is unlawful per seas a

matter of statute and that if the common law rule

were to similar effect then there would appear to

be no basis for a court approval or a declaration

of court approval, as it were, opening the way.

BRENNAN J: There is a passage in the judgment of

Mr Justice Stephen in Reg v Coney, 8 QBD 549 which

reads as follows:

Marion 152 2/5/91

in all cases the question whether consent does or does not take from the application of force

to another its illegal character, is a

question of degree depending upon

circumstances.

MR MASON:	Yes.
BRENNAN J:	Do you have any submission to make as to whether

that is the common law?

MR MASON:  I certainly came intending to take a position of

neutrality about what the common law position is.

Our concern is that that common law rule, whatever

it is, is applicable and, as it were, binds the

Family Court with reference to its parens patriae

jurisdiction and if the common law rule is that

consent is insufficient - put another way - consent

may be a prerequisite but it may not be sufficient

to enable the operation to take place with respect
to a child and this sort of operation. Parens

patriae jurisdiction may address the prerequisite

of consent but it cannot deem lawful that which the

common law, or we say statute, says is unlawful.

It is necessary but not a sufficient precondition.

Your Honours, the only other matter in which I

would wish to develop the written submission is in paragraph 7 when we say that there are indications

within Part VII itself to show that an exclusive

vesting of jurisdiction in the Family Court, later

modified by the cross-vesting scheme, does not

convert Part VII into a code as to the rights of

parents and guardians. There are clear

indications, we would submit, that there is a lot

of room for the common law and the State law still
to operate and for the Family Court's power to work
to a degree within the interstices of that
provision. Section 63E(l), which refers to the

guardianship of a child, provides that the

guardians have:

all the powers, rights and duties that are,

apart from this Act, vested by law -

The definition of "guardian" itself in section 60

picks up:

a person -

who is guardian

under

(a) this Act or another law of the

Commonwealth; or

Marion 153 2/5/91

(b) the law of a State or Territory.

Section 60H, itself, perhaps without looking at the

specifics of the provision is, in our submission,

an indication that there is a lot of intended scope

outside of the Part VII. The Lambert decision, to

which reference was made yesterday as to the

limitations of the Federal constitutional power, is

another factor.

We refer to Ansett v Wardley. The particular

passages are at page 246, Justice Stephen; pages

266 and 267, Justice Murphy; pages 287 and 288,

Justice Wilson. Might I also add a reference to

section 79 of the Judiciary Act which states a
general starting point that the State law

applicable in the area in which the Federal Court

sits shall apply except to the extent that it has

been varied by applicable Commonwealth law. So, in

one sense, the onus, we would argue, is upon the

Family Law Act to show clearly an intention to abrogate State law and to do so validly.

In Fountain v Alexander, there is one passage

I would briefly take.the Court to, at 150 CLR at

pages 627 and 628 in the judgment of

Mr Justice Gibbs. At about point 7, His Honour

said that:

The power of the Parliament to make laws with

respect to marriage does not extend to laws
for the protection or welfare of the children
of a marriage except in so far as the occasion
for their protection or welfare arises out of,

or is sufficiently connected with, the

marriage relationship. As I have previously

said, an enactment is not law with respect to

marriage simply because it has some operation

with respect to the custody of a child of a

marriage -

I would add, or the welfare of a child of a

marriage. Sorry, His Honour adds that and he

refers to Lambert -

shows, State laws may validly operate in

respect of a child of a marriage -

And the passage from Mr Justice Stephen's

judgment in Lambert is - I do not know what ACR is,

but the Commonwealth Law Report reference is

146 CLR 447 at 460 and 461. There

Mr Justice Stephen - I will not burden the Court by

reading it; it is the whole of page 460 and the

first half of page 461. Particularly at page 461

His Honour speaks of the situation in a federation and the operation of the distribution of

Marion 154 2/5/91

legislative powers in a way that, we would submit,

is applicable here; showing an intention not to

assume an overreaching function for family law

where there are so many State laws which clearly

must have to operate with respect to the choices

open to guardians and ought to be free to continue

to operate within the scope of welfare power given

to the Family Court.

Your Honours, the point in paragraph 9 of the

submissions looks at, as it were, a more specific

issue. We would submit that one has to find in the

empowerment of the Family Court to make an order a

power to grant the actual authorization which is

sufficient and constitutionally valid before there

can be any possibility of excluding a State imposed

requirement of a supreme court approval.

Your Honours, the only other thing is to give

Your Honours a reference to two further articles in

addition to those mentioned by the

Solicitor-General for the Northern Territory: an

article called "Sterilization and the Courts",

(1987) CLJ 439; and an article called

"Sterilization of the Mentally Disabled in English

and Canadian Law", (1989) 38 ICLQ 387.

DEANE J:  Mr Solicitor, can I take you back to the New South

Wales legislation for a moment? They contemplate

authorization for special medical treatment in case

of urgency or emergency. Now, there obviously the

Act authorizes treatment. But when you go outside

the case of urgency, all the court order does is

give consent.

MR MASON:  Yes, and relieves against the criminal

prohibition.

DEANE J: That is right. But consent seems to presuppose

that somebody has authority to do or to authorize

subject to consent.

MR MASON:  In my submission, no. The closest the Act

gets - are you talking of the Disability Services

and Guardianship?

DEANE J: Well, I was looking at them both, whichever you

like.

MR MASON: Certainly, the disability services one, the

closest it gets to it, in my submission, is by

limiting the range of persons who may apply for

consent, and I should have referred Your Honours to

section 42 or any - - -

DEANE J: Well, I -

Marion 155 2/5/91

MR MASON:  I am sorry, it is:

Any person may apply ..... for consent.

But the distinction which 36 and 37 draws, in my

submission, makes it irrelevant that there has been no consent of the parents. In other words, the Act

is broad enough to pick up the situation where the

parents refuse to consent to the procedure.

DEANE J: Well, where is the section saying who can apply

for consent to non-urgent special medical - - -

MR MASON:  To non-urgent but special?

DEANE J: Yes.

MR MASON: Section 42.

DEANE J:  I see. So this removes, as it were, the parent as

an essentially interested party in the case of such

procedures?

MR MASON:  Yes. Now with respect to children under 16,

which the other Act deals with in a much more

summary matter, I do not think the parent is, in

terms, removed, although I would argue that the

power in the supreme court to give the consent,

certainly when read against the background of the

parens patriae jurisdiction, would envisage any
person applying for the consent, regardless of the
parents' wishes and the supreme court's consent
being sufficient. Perhaps this triggers off one

final submission: if the common law rule is as the

appellant seeks or is similar in content to these

statutory provisions, it arguably travels outside

of the scope of the marriage power because the

parental consent becomes irrelevant.

DEANE J: Well, what if one were, for example - and it is a

genuine hypothetical example - to take the view

consent to this type of medical procedure had to be	that in a modern context the power of a parent to
qualified in the sense that it could not be given
affectively accept after some adequate statutory or
independent judicial inquiry? One can see how it
might work in here as saying, well, if the State
law is there and provides for the inquiry, the
jurisdiction works on the State law, but assume a State law which said, "Any busybody can write to
the Minister for Health and obtain a consent to
sterilization of any child in an institution",
would you say that the Family Law Act would not
authorize the Family Court to act on that and to
say, "Well, that removes the bar under State law",
but that is completely inadequate?

Marion 156 2/5/91

MR MASON:  If the State law said that when a minister

certifies, the operation may take place - I do not know that my proposition goes so far as to say the

Family Court could not grant an injunction saying

it is not in the welfare of the child to take

place.

DEANE J:	I did not think it did, I just wanted to check it.
MR MASON:	No, I think I would accept that there is the

power to forbid, but not the sufficiency of the

power to permit.

DEANE J: Well, what if the State law said, "All children

aged 14" or "All girls aged 14 from underprivileged

families will be sterilized", and forget other

problems that would be involved, there you would
have not just a removal of a bar but an actual

State law ordering you.

MR MASON:	Yes.
DEANE J:	Would you suggest that the Family Court could not

override that law where it was not persuaded that

sterilization was in the interests of the welfare

of the child, of the marriage, if you want me to

add that?

MR MASON:  I would suggest that the family law in its

present form does not purport to vest any power in

the Family Court to override that law. I would

say, alternatively, that if the Family Court has

power it is limited by the marriage, the

constitutional nexus of marriage, and therefore

maybe its power could only be enlivened, if at all,

on applications by parents. But my primary

position would be that there would not be an

intersection, as the thing stood at the moment.

DEANE J:  I see.

MR MASON:  I perhaps should mention that in section 43 of

the Disability Services Act, there is a requirement
that the application for consent be served, inter

alia, upon the persons responsible for the care of

the child, so there is an intention that that will

be their contribution, as it were, to the board

approving process.

DEANE J:  I am right, am I not, that there is nothing in the

case of special medical treatment that takes the

board's decision beyond consent?

MR MASON: Well, I would say it not only gives consent for

the purpose of any parental authority but gives

authorization for the purpose of any criminal law,

to the medical practitioner.

Marion 157 2/5/91

DEANE J: That was not the gist of my question.

MR MASON:	I am sorry, Your Honour.
DEANE J:	Assume the applicant is a parent and obtains

consent, he or she obtains consent, there is

nothing that prevents the parent saying, "Well,

I've obtained consent but I'm not going to go ahead

and authorize this operation"?

MR MASON:  I agree with that, yes.

DEANE J: Well, the final question -

MR MASON:  Presumably there would be other powers that

someone could swoop in and have the child made a

ward of the court so the operation could take

place.

DEANE J: But that is a different question. Or if, for

example, the applicant was a doctor and obtained
authorization, or obtained consent and went to the
parents with the consent, there is nothing in the

Act that would disentitle the parent to lock the front door and say, "You keep away from my

children".

MR MASON: Correct, yes.

DEANE J: Thank you.

MASON CJ: Thank you, Mr Solicitor. Yes, Mr Riley.

MR RILEY:  Thank you, Your Honour. May I hand to Your

Honours the written outline of our submissions.

MASON CJ: Thank you.

MASON CJ: Yes.

MR RILEY:  Thank you, Your Honour. Your Honours, we submit

that the law in the Northern Territory is and

should remain that provided such procedures are in

the best interests of the child the parents as

guardians can give lawful consent to medical procedures on behalf of mentally incompetent

children without any order of the court and that the carrying out of the procedures shall then be lawful.

We say that the involvement of the court - and by that I mean the Family Court in this particular

case - in such matters is of a supervisory nature

and that supervisory jurisdiction need not be

invoked. It can, however, be invoked in

appropriate cases by the parents, the child or any

Marion 158 2/5/91

person who has an interest in the welfare of the

child and that is pursuant to section 63C(l).

Before dealing with the substance of our submissions, Your Honours, there are two areas

where we do not depart from those who have gone

before us and unless required we will not address those issues further; that is, firstly as to the

jurisdiction of the Family Court, we agree that the

Family Court has jurisdiction to make orders in

regard to welfare and we adopt the submissions made

by my learned friend, the Solicitor for the

Northern Territory.

DAWSON J: Without any limitation at all?

MR RILEY: What, the adoption, Your Honour?

DAWSON J: Your submission is that the Family Court has

power to make orders with respect to the welfare of

a child without any limitation at all?

MR RILEY:	No, we say it has limitations that are built into the concept of welfare and parens patriae
jurisdiction. So, for example, we would not
contend that the court could order the release from gaol in the Northern Territory of an infant.
However, we say - - -

DAWSON J: That is all I wanted to know.

MR RILEY: Yes. That does not go to jurisdiction though, we

say that goes to the proper exercise of a

discretion.

BRENNAN J: So, there is power to order a child to be

released but it should not be exercised?

MR RILEY:  Yes, Your Honour. And the other matter we do not

wish to address further on, unless Your Honours

require, is the jurisdiction of this Court which

BRENNAN J: Is it the fact that there is a final decision by you have heard a lot about in the last few days. the Family Court that it has jurisdiction?

MR RILEY: Is it at the moment, Your Honour?

BRENNAN J: Yes.

MR RILEY:  Yes. The judgments of all of Their Honours say

that they have jurisdiction in the court below;

that they have different views on whether or not it

should be implemented or is it necessary for

parents to go to the court.

Marion 159 2/5/91

Perhaps I can take Your Honours to the guardianship power, which is section 63E of the

Act. What we say is that parents have

responsibility for the long-term welfare of the

child pursuant to subsection (1). The only express

statutory restriction on that power relates

to"daily care and control" which is vested in the
custodian of the child in subsection (2) and, of

course, in this particular case, the parents are

both guardians and custodians of the child. We say

that section 63E(3) permits the court to vary the
operation of subsection (1) and subsection (2). It
does not, in our submission, allow for an increase

of powers as was suggested yesterday but rather

permits the court to regulate, as between guardian

and custodian, the powers conferred upon each of

them, so, in other words, to regulate the

distribution between guardian and custodian of the

so-called bundle of rights in relation to the

child. The section refers to variation not

supplementing.

In addition to the responsibility for the

long-term welfare of the child the guardian has,

according to section 63E(l):

all the powers, rights and duties that are,

apart from this Act, vested by law ..... in the

guardian of a child.

It is our submission that the primary source of

responsibility for a guardian is the provision of

subsection (1) which provides that the guardian can

have:

the long-term welfare of the child -

and as Justice McCall said in Marion at page 472,

that if there are -

in fact, be other rights and duties given by

common law to the parent which are not

provided for in the opening words of the
subsection, then these are also conferred upon

the parent.

So, the basic right is that granted by the statute

and, in addition, the guardians have powers and

duties which arise at common law.

Justice McCall, in his consideration of the matter, concluded that the additional powers are

expansive of and not restrictive upon the

responsibility for the long-term welfare of the

child. He reached that conclusion at page 472.

Marion 160 2/5/91

Welfare, Your Honours, in these circumstances

means all aspects of the welfare of the child and

includes medical procedures, and we set out the

authority for that proposition at paragraph 4. It

has not been contended, as I understand the

arguments over the last two days, to the contrary.

We note that there is nothing in the Family

Law Act or indeed in any Northern Territory

legislation - - -

BRENNAN J: Before you go on, Mr Riley, I have not

understood that to be the proposition at all that

is conceded in the last two days, rather the

opposite.

MR RILEY:	Your Honour, the contention is that medical procedures can be authorized by parents, and I
understand that to be conceded. The question that
has been in dispute is the extent to which parents
can go in so authorizing.  So there is no doubt
that a parent can authorize that a child can visit a dentist to have his teeth drilled, but the
question is, "What is the limitation of that
power?"
BRENNAN J:	I see.

MR RILEY: That is where the dispute arises, and we come to

that shortly. But the basic contention that

parents can authorize and consent to medical

procedures, I understand, is not in dispute and is

well settled.

If one then goes to the Family Law Act and

indeed, as I say, all Northern Territory

legislation, there is nothing which restricts the

power to consent to medical procedures. There is

no suggestion in the legislation as indeed there is

in New South Wales and South Australia, of any

limitation upon the authority of the parents to

consent to medical procedures, and had it been so

intended perhaps as has occurred in most States the

legislature could have said so.

TOOHEY J:  Mr Riley, what is meant by saying that a parent

can consent to a medical procedure? Do you mean

that by consenting, what would otherwise be

unlawful becomes lawful, or do you mean something

else?

MR RILEY:	Where consent to a procedure is required, so normally it would be the consent of the individual
patient, for example, that consent will be substituted. It would go so far as to provide a
defence, for example, under the Criminal Code, but it would not go so far as to provide a defence to

Marion 161 2/5/91

an action for damages. And what is required in

addition to the consent there is that the operation

that is actually performed be in the best interests

of the child. So you need two steps.

TOOHEY J:  I am not sure that I follow the distinction

between the impact of consent on the operation of

the criminal law and the impact of consent on the

law of tort.

MR RILEY: Well, in the criminal law, for example in assault

cases, the existence of consent can of itself be a

defence. It would have restricted application, I

may say, Your Honour, under the Criminal Code, very

restricted application but - - -

TOOHEY J: Presumably it could not operate to authorize an

assault where the legislation itself precludes the

giving of consent to the assault.

MR RILEY: Yes, we agree with that proposition. Perhaps I

should put it more generally, Your Honour. Subject

to some exceptions, you need the two steps that I

have referred to; that is, that there be consent

and that the procedure be in the best interests of

the child to make it lawful.

TOOHEY J:  And when you use "lawful" in that last context,

do you mean lawful both by reference to the

criminal law and the civil law, do you?

MR RILEY: Yes, Your Honour.

BRENNAN J:  And if it is unlawful, what do you mean by that?

MR RILEY: Well, depending on which area we are talking

about, subject to penalty or subject to an action

for which damages may lie.

BRENNAN J:  What is the penalty imposed by the law of the

Northern Territory?

MR RILEY: There would be various charges that could be

laid, for example, against the doctor concerned,
including assault and he would then go to the Code

and say, "Well, I have performed this procedure in a manner authorized". Something which is unlawful

is something done without authorization.

Your Honour was taken to this yesterday, I think,

by Mr James.

BRENNAN J:	I just want to get your submission as to what you say the offence is and what the relieving
effect of consent may be.

MR RILEY: There are various offences, Your Honour, but

basically assault, and that is section 187 of the

Marion 162 2/5/91

Code and the defences arise by reading sections 25

and 26 with the definition of "unlawful" in

section 4.	"Unlawful" in section 4 is defined to
mean:

without authorization, justification or

excuse.

Perhaps section 24 as well:

24.       Any event resulting from an act or

omission that was authorized, justified or

excused is, accordingly, authorized, justified

or excused.

25. An act, omission or event expressly declared to be lawful is either authorized or

justified and an act, omission or event

expressly declared to be authorized or

justified is lawful.

BRENNAN J: In what consists the authorization, in your

argument?

MR RILEY: Section 26(l)(a).

BRENNAN J:	No, but what is the thing?
MR RILEY:	What is the authorization?

BRENNAN J: Yes.

MR RILEY: Yes, it is the consent coupled with the operation

being in the best interests of the child.

MR RILEY: Yes, it is the consent coupled with the operation

being in the best interest of the child.

McHUGH J:  Why is the consent necessary, on your argument?

I mean, your whole argument depends upon Re F.

MR RILEY: Yes, it does, Your Honour.

McHUGH J: Well, the question of consent was irrelevant in

Re F. The House of Lords said that if doctors

think it is in the best interests of a mentally ill

person to be sterilized, that is a lawful act.

That is a proposition I would want to hear long

argument on before I could bring myself to accept

it.

MR RILEY: Yes, Your Honour. I was actually going to come

to Re Flater in my submissions and take Your

Honours through that. Perhaps that is the best way

to deal with it.

McHUGH J: Yes.

Marion 163 2/5/91

BRENNAN J: Before you go back, could I just ask you again

in relation to tort, what tort is affected by the

giving of consent?

MR RILEY: Assault.

BRENNAN J: Assault?

MR RILEY:	Yes, assault would be it.
BRENNAN J:	And is consent all that is necessary or is there

a best interest qualification there?

MR RILEY:	A best interest qualification again, Your Honour.
BRENNAN J:	Thank you.

DEANE J:	You say consent.	I notice in one place you say
"informed consent".

MR RILEY: Yes, that relates to the situation of the doctor

and it arises from a passage from a judgment which

Your Honours have not yet been taken to, that is

from the New Zealand - - -

DEANE J:  I was just checking, which is it, consent - I

mean, is it enough if the parent says, "Well, the question is will I sterilize the child or not? I will toss a 50 cent coin and if it comes down" -

whatever they have on 50 cent coins - "that means

sterilize" - - -

MR RILEY: It would be informed consent, Your Honour,

because otherwise it -

DEANE J:  Then if it is informed consent and it is unlawful

unless in the best interests of the child in all

the circumstances, why does that not mean that

consent is unavailing unless what is in the

circumstances an adequate inquiry as to what is in

the best interests of the child has first been

carried out? In other words, if it is drilling a

tooth, obviously it is a clear case of yea or nay,

but if it is sterilization of a girl, why do you

not have to address the question: what is the

proper type of inquiry before such a consent can

have any effect at all?

MR RILEY:  We say, Your Honour, that in some cases it will

be quite clear to the parents or the guardians

having obtained appropriate medical advice and

given the situation of their particular daughter,

that this operation is in the best interests of the

child. There will be some cases where it is clear

and then there will be a gradation until it becomes

totally clear in the opposite direction, that it is

not in the best interests of the child.

Marion 164 2/5/91

DEANE J:  Even when it is not essential for the purposes of

health?

MR RILEY: Yes, Your Honour. Well, it depends what you mean

by "essential for the purposes of health". If you

have a 14-year-old girl who has the mental age of

three months, who is traumatized by blood and has

mood swings with menstruation, is aggressive and

attacks other people, who mutilates herself at that
time, add in any number of factors, there can be a

case and many cases, we would say, where it is

quite clear that that procedure, if it removes that

problem, is in the best interests of the child.

DEANE J:	What about when it is not quite clear?
MR RILEY:	Then one should go to the court.

DEANE J: Should or must?

MR RILEY: Should, but it will become a must, because for

the doctor and the parents to have protection, they

will need to be satisfied that, on an objective

test by a court perhaps subsequently, it will be

found to be in the best interests of the child.

DEANE J: That is not what I was asking you about. I was

asking you about, what is informed consent? Well

now you agreed that you cannot toss a $50 - or a

50 cent coin - - -

MR RILEY: Well, informed consent will vary, depending upon

the circumstances, but at its most basic it would

be the parents giving consent based upon

appropriate medical advice, and by that we mean a

range of advice, and assessing that and saying,

"Well, this is a clear-cut case". That would be

informed consent, but if there is doubt, then

informed consent would ultimately involve a

deliberation by the court.

DEANE J: So, in other than what you call clear cases,

failure to call in or have the benefit of an

independent or appropriate inquiry, would mean that

the consent was unavailing in that it was not

consent in the necessary sense.

MR RILEY: Yes, Your Honour.

MCHUGH J:  You seem to be moving between two concepts,

between informed consent and best interest.	If it
is the informed consent of the parents, then	surely
that is what must operate in all situations.

MR RILEY: It is the informed consent of the parents, based

upon the operation being in the best interest of

the child.

Marion 165 2/5/91

McHUGH J:	But supposing they are wrong about that, but nevertheless having informed themselves of the
rights and wrongs of the matter, they give their
consent. Is the consent valid and lawful?

MR RILEY: If they are wrong, no.

BRENNAN J: Is there no honest and reasonable but mistaken

belief defence in your Code?

MR RILEY: There is certainly mistake.

BRENNAN J: Well then, why is it not available?

MR RILEY:  I suppose it would depend upon an assessment of

why it was that the best interests of the child
were not served by the operative procedure and that

is an assessment, for example, if we are dealing

with a doctor, made by the doctor. It becomes a

matter of degree, I suppose, Your Honour, and it

could be available, yes.

McHUGH J:  It is a bit hard on the doctor if he has got to

rely on informed consent, is it not?

MR RILEY: Yes, it is, Your Honour, and that is why we say

that most of these cases will come before the

court. What we say is not that they should not

come before the court but that it is not necessary,
it is not a pre-requisite to proceeding with the
operation that they do come to court because in

many cases, possibly, but certainly in a number of

cases it will be so clear that to impose that

burden upon the parents and the guardians is

unnecessary.

McHUGH J:  I just have some difficulty with this. You seem

to be saying that there cannot be informed consent

in some cases unless there is an inquiry by the
court but whose consent is it that ultimately

counts, the parents or the court's or does it

depend upon the objective fact of it being in the

best interests of the patient?

MR RILEY: It ultimately is a matter for assessment as to

objectively what is in the best interests of the

patient.

McHUGH J: That means consent cannot have anything to do

with it, does it not?

MR RILEY: Except that one starts with a doctor going to the

guardian or the parents and saying, "I believe this

is in the best interests of the child, I need

consent." The parents then inform themselves in

the manner that we have discussed and give the

Marion 166 2/5/91

consent and it is they who have the capacity to

give the consent.

McHUGH J: But if it is not objectively in the best

interests of the child, the fact that they have

given their consent is irrelevant, is it not?

MR RILEY:  Yes, Your Honour, and that is why we say it only

relates to clear cases and there must be clear

cases. So that most cases will come before the

court but the parents should not be obliged to come
before the court and go through that traumatic
experience - and one can see from the Australian
cases that for parents and guardians it is a

traumatic experience - unless there is doubt.

There are, we say, safeguards against the

problem that Your Honours foresee and they firstly

arise out of the supervisory jurisdiction of the court, section 64(1), which permits the court to

make orders in relation to the welfare of the

child, the injunctive powers under section 70C, and

it must be remembered here, Your Honours, that as

distinct from the American cases to which you have

been taken, the cases here in Australia, thus far,

have not been pure sterilization cases.

Sterilization has been a consequence of the

operative procedures sought to be undertaken but it

was not the purpose for which the procedures were

undertaken; they were concerned more with the

management with mensuration, the effect that has on

the child and the improvement of the child's lot

whereas in each of the American cases they were

straight out sterilization cases.

This case is perhaps similar to the Parents

of X which is the New Zealand case, as yet

unreported as I understand it, but Your Honours

also, I understand, have copies. Justice Hillyer

in the High Court, as a single judge, in

December 1990 and His Honour there said at

page 11 - he is talking about the class of case

that we are dealing with: 

I think it is important to appreciate that

what we are talking about is an amenorrheoa

operation - for the purpose of preventing
menstruation. It is not an operation for the

purpose of sterilisation. Certainly, as a

result of the operation X will be unable to

bear children, but that is not its purpose.

That is a very important point.

Similarly, in the Canadian case of K v Public

Trustee which is referred to at the foot of that

page, there the Court of Appeal of British Columbia

said, and I refer Your Honours to th~ quote at

Marion 167 2/5/91

page 12 at about point 4, adopted by His Honour

Justice Hillyer. He said:

With respect I adopt the argument of counsel for the Attorney General contained in his

factum as follows -

and he quotes -

'Such criteria may well be appropriate to

safeguard rights of the mentally handicapped

where contraceptive sterilisation is proposed

for the apparent benefit of the state or those

charged with the care of the handicapped
person or potential offspring. But, it is

submitted, these criteria have no application

in this case, where the hysterectomy is

proposed not to sterilise Infant K so as to relieve society of her offspring, nor those

caring for her of potential burdens, but

rather to spare 'this child, who does not get

a lot of joy out of life, a little extra

anguish.'

In that case, indeed the court said that in such cases, in their view, it was unnecessary to go to

the court for approval.

McHUGH J:  Does not this case tend to indicate how difficult

it is for the parents to make an informed decision

because it is not merely a question of take into

account the gynaecologist's opinion, but he might

have to take into account psychiatric opinion, the

view of social workers and other people who would

have input. There would be a lot of people whose

opinion would be necessary before you could

determine what was in the best interests of the

child?

MR RILEY: Yes, Your Honour, indeed, although I suppose it

is not in evidence yet that that is what has

occurred in this case, and these parents are
ordinary parents making this decision with the

assistance of staff at the Royal Darwin Hospital,

private practitioners and the like, and they are

obtaining that range of information; they have

formed the view that it is in the best interests of

their child that this procedure go ahead. However,

it is their view that there is an element of doubt

and they come to this court. They come for other

reasons as well, the comfort of the decision, they

have some view of distancing themselves a little

bit from the decision and, of course, the unsettled

state of the law following Re Jane and Re

Elizabeth. But the fact that one does not go to

the court does not mean that one does not have all

of that advice in any major hospital and the

Marion 168 2/5/91

operation is such that it would take place in a

significant hospital not some -

McHUGH J:  It depends upon what hospital you go to. I mean,

I come from New South Wales and we have had the

Chelmsford Royal Commission there. You would not

have been wanting to go to Chelmsford for some

advice.

MR RILEY: But Your Honour is not suggesting that everybody

who gets admitted, as those patients were to

Chelmsford, should come to the court first. It is

a matter of drawing lines. The other safeguards,

we say, Your Honours, are, apart from the

supervisory jurisdiction of the court which can be

invoked by a wide range of people, the requirement

that for an operation of the kind in question - and
this is what we have been discussing earlier - to

be lawful, it must be necessary or in the best

interests of the child. "Necessary" was discussed

in Re F by Lord Justice Neill at page 1053 Weekly
Law Reports and 32F Appeal Cases where he said:

I would define necessary in this context as that which the general body of medical opinion

in the particular speciality would consider to

be in the best interests of the patient in

order to maintain the health and to secure the

well-being of the patient.

So, really, a "best interest" test. So, put

another way, the operation will not be lawful if it

is not in the best interests of the child with

obvious consequences for the guardian or the

doctor.

TOOHEY J:  Mr Riley, one of the orders that is sought is

order number 2, a declaration that it is lawful for the applicants to consent to the procedures. There

seems to be something a little odd with the wording

of that, but at any rate, what is sought is a

declaration that it is lawful for the applicants to
consent to the relevant surgical procedures.	Now,
the case stated asserts that it is in the best

interests of the child that she undergo the two

forms of surgery that are referred to. In seeking

a declaration that it is lawful for the applicants

to consent to the procedures, are you putting a

case on the basis that it is lawful because it is

in the best interests of the child or, the best

interests of the child aside, it is lawful for the

applicants to consent to the procedures?

MR RILEY:  No, Your Honour. The best interests of the child

must always be involved. I am sorry, Your Honour. We have rephrased, in effect, the declaration and

we seek, as I opened to Your Honours, that provided

Marion 169 2/5/91

such procedures are in the best interests of the

child, the parents as guardians can give lawful

consent to the medical procedures on behalf of

mentally incompetent children without an order of
the court and that the carrying out of the

procedures shall then be lawful.

TOOHEY J: Where do we find that?

MR RILEY:  You do not find that, Your Honour. We can reduce

that to writing, but that is the declaration we

would seek. That is, that provided such procedures

are in the best interests of the child, the parents

as guardians can give lawful consent to medical
procedures on behalf of mentally incompetent

children without any order of the court and that the carrying out of the procedures shall then be lawful.

BRENNAN J: 

Why is it, in the light of the definition of

"assault" in section 187 of the Code, you put the
proviso on that?

MR RILEY: 

I am sorry, could Your Honour repeat that

question.

BRENNAN J:  The definition of "assault" as meaning:

the direct or indirect application of force to

a person without his consent -

Why is it that you put the proviso on? Why do you

not simply say, "If the guardians consent that is

consent under section 187 and therefore there is no

offence."?

MR RILEY: That is for the purposes of the Code,

Your Honour. However, for civil proceedings, for

example, it would need - as follows from Re R - it

would need to be in the best interests of the

child.

BRENNAN J: Well, if that is the purpose of the proceedings,

is there any jurisdiction in the Family Court to

make an order - or any jurisdiction in any court

to make an order - which might have the effect of

alleviating civil liability?

MR RILEY: Yes, Your Honour, it would be a consent similar,

in a sense, to what appears in the Code, recognized

by law in the Northern Territory.

BRENNAN J: Yes, I just do not understand what the

jurisdiction is that would be invoked by an

applicant who fears that they might be proceeded

against civilly, seeking a declaration, if they

Marion 170 2/5/91

wish to, that if they give this consent they will

not be opposed to that civil liability.

MR RILEY: 

The parens patriae jurisdiction, Your Honour, of

the infant herself not being able to give consent,
the consent of her - as has been variously
described as agent or trustee or whatever - through
the parens patriae jurisdiction.

MR RILEY: 

I did wish to take Your Honours to a passage -

there are quite a number of passages referred to

from Re Fat paragraph 8 of our submissions. The

typewritten references are the Weekly Law Reports

and the handwritten are the Appeal Cases, and I do

not propose to read all those to Your Honours.

However, I would wish to read the final reference there. It is page 1093 of the Weekly Law Reports

or page 83F of the Appeal Cases. It is

Lord Jauncey and he says:

My Lords, I should like only to reiterate

the importance of not erecting such legal

barriers against the provision of medical

treatment for incompetents that they are

deprived of treatment which competent persons

could reasonably expect to receive in similar

circumstances. The law must not convert

incompetents into second class citizens for

the purposes of health care.

There are four stages in the treatment of

a patient, whether competent or incompetent.

The first is to diagnose the relevant

condition.	The second is to determine whether
the condition merits treatment.	The third is

to determine what the merited treatment should

be.	The fourth is to carry out the chosen
form of merited treatment.	In the case of a

long term incompetent, convenience to those

charged with his care should never be a

justification for the decision to treat.

However, if such persons take the decision in	relation to the second and third stages solely	in his best interests and if their approach to
and execution of all four stages is such as
would be adopted by a responsible body of
medical opinion skilled in the particular
field of diagnosis and treatment concerned -

so that is the "best interest" test -

they will have done all that is required of

them and their actings will not be subject to

challenge as being unlawful.

McHUGH J: But this judgment has to be read in the context

of the fact that in 1960 the Royal Warrant was

Marion 171 2/5/91

revoked in England so that there was no parens

patriae jurisdiction, no statutory jurisdiction in

respect of mentally disabled persons. And faced

with that the Law Lords interpreted the common law

to enable doctors to perform operations if they
thought it was in the best interests of the

mentally disturbed person. But that is not the

position in Australia. Why should we take that

extreme step of declaring that a mentally disturbed

person can be the subject of a sterilization

operation because a doctor thinks it is in the best

interests of the child, without any supervision of

a court or any other statutory body?

MR RILEY:  Because of the safeguards that are involved,

Your Honour. That is ..... the court can be involved

by almost anyone at any time and has been in the

Australian cases, save for the present case which was instituted by the parent, that for the doctor
to proceed and indeed for the parents to proceed, without it being clearly in the best interests of

the child, and that to be judged objectively,

leaves them open to repercussions.

McHUGH J: Yes, but what you want, among other things, is

deterrence. If there is a rule that you have to
get the court's consent before you can carry out a
sterilization operation on a girl, mentally
disabled or otherwise, then it deters parents and

doctors from going ahead and having regard to their

own judgment in relation to it. It is too late

afterwards if you find out it was not in the best

interests of the child; she is sterilized.

MR RILEY:  We would say the deterrent effect is there,

whichever way you go. That is, if you are

considering the deterrent effect, if you are a

doctor saying, "now will I proceed to operate or

will I not? The High Court of Australia says I

must get the approval of the Family Court; then I

will go and get that".

McHUGH J: Unless it is an emergency situation.

MR RILEY: Yes, leaving that aside. But if he is sitting

there thinking, "Will I operate or not, and I am

required" - so he is adverting to it - "to consider

whether this is in the best interests of the child

or not", he will, unless it is a clear case, say to

the parents, "You must seek the approval of the

court. I am not going to risk - - -"

McHUGH J: But as I put to you earlier, what is in the best

usually of more than the gynaecological aspects. interest of the child requires an examination, fit into society; what psychological. aspects the

Marion 172 RILEY, . QC 2/5/91

matter has. There is a whole range of matters and

it is probably beyond the capacity or the

competence of any one doctor to make that judgment

on his own. It is really a team effort, is it not?

MR RILEY: Yes, it is, and that is how it is approached.

Well I should not say that, I suppose, because I do

not know about other cases, but indeed, in this

case, that is how the matter has been approached

and when looks at Re Jane, Re a Teenager and the

other Australian cases, that is the way the matter

has been approached there, although, of course,

they have been before the courts. But I am not
sure that the mere fact that you are going before a
court to get approval will mean that the
consideration of the question will be anymore

intense.

McHUGH J: Except you may get the contrary view. It may not

be a view the doctor has and some people he

consults, there may be other views about the matter

and if the matter is brought before a court and

consent cannot be given without the court's

approval, then other views may be examined or ought

to be required anyway to see if there is a contrary

view about the case.

MR RILEY:  Yes, it becomes then a question of - in clear

cases, and the Parents of X, apparently was one

where the views - yes, Parents of X, I think, was

one;	anyway, there are examples - where views are
fairly well uniform.	Why then, we would say,

should the parents be put through the burden of

coming to court and going through - the minimum has

been five days in these cases of expense and

emotional trauma.

McHUGH J:  You appear for the parents and naturally you look

at their interests but the paramount interest is

the interests of the child, the helpless child, and

it is the duty of the courts and the duty of the

State to protect those interests; that is the

paramount consideration.

MR RILEY:  And, indeed, the duty of the parents,

Your Honours. One seems to be starting from the

assumption that people are out there performing

these operations unlawfully or not in the best

interests of the child but we would say ..... a bit

more charitable.

McHUGH J:	No, one does not start with that assumption but the Court would have to blind to fail to see that
throughout the history of medical procedures there have been doctors who quite genuinely believe that particular courses of medical treatment are in the
best interests of the patient when, in fact, they

Marion 173 2/5/91

have not been and particularly in the field of the

mentally disturbed. There has been inquiry after

inquiry which is revealed.

MR RILEY: But, with respect, Your Honour, we say this in

our submission, there are many onerous decisions

that are made by parents, of both competent and

incompetent children and some of those are

extremely serious. In relation to an incompetent

child perhaps the most serious decision that is

made by a parent would be to put the child into

care, to take it away from its family. Now, there

is no review of that and there are operative

procedures that have been discussed, like the

removal of a non-malignant tumour or placing a

plastic hip in a child who may have an unusual gait

or something like that. They are very serious,

they are intrusive, they may be done for improper

motive, to make the child more attractive.

Cosmetic surgery, Your Honour, mentioned yesterday.

It may be done for improper motives. There is no

suggestion that parents should come to court each

time a very serious decision is to be made in

relation to an incompetent child and it is sought

to distinguish this particular case, by those who

say we should come to the court, by saying, "Well,

it's on its own, it deals with the highly emotional

issue of sterilization." We say, do not look at it

as - - -

McHUGH J: But it is permanent; it is irreversible.

MR RILEY:  But so are all the other operations, Your Honour.

The removal of a kidney or cosmetic surgery is

irreversible - well, generally.

McHUGH J:  Some would argue that procreation is one of the basic purposes of human life.

MR RILEY: Well, in response to that we refer Your Honour

to - it was in Re Jane, but also in Re B (A Minor),

where Lord Hailsham, in relation to the right to

bear children, he said this:

It is of less significance if a child is not capable of knowing the causal connection

between intercourse and childbirth, the nature

of pregnancy, what is involved in delivery or

unable to form maternal instincts or to care

for a child, to talk of the basic right to

reproduce in such circumstances is to wholly

part company with reality.

We would not go quite so strongly as

His Lordship did but we would say its significance

becomes less and less. If it is just not going to

be a feature of this girl's life there is no

Marion 174 2/5/91

ability to make a choice to reproduce, and there

never will be, then it is a factor to be taken into

account, but its significance is minor. It is not

a reason, we say, to place this group of operative

procedures or this particular operative procedure

into a category of its own which requires consent.

We distinguish it from the donor case where

the incompetent child is to be the donor of an
organ for a brother or sister or someone else on
the basis that, clearly - or not clearly but, in
most cases if not all cases, will be not in the
interests of the donor but rather in the interests

of the donee and then one would have to come to

court. Whether there is a power in the court to

grant consent or not, I do not know, in those

circumstances.

We are putting this particular case in a

category of its own and we say it is no different,

or it is not significantly different from other

major decisions that the parents make and they do

not come to court for those; why should they here?

Those factors that Lord Brandon referred to in

In re Fas setting this procedure apart from all others, included such things as irreversible

consequences and the risk of error without the

involvement of the court; the risk of improper reasons and the fact that approval of the court

will provide increased protection for those

involved. We say each of those factors exists in

many, many decisions made by parents in relation to

medical procedures on children and that is not a

reason for distinguishing.

Indeed, Lord Justice Neill, in In re F, at

page 1052 of the Weekly Law Reports and page 31E of

the Appeal Cases, said this:

Moreover, counsel was right to remind us that

and that sterilisation will almost certainly the right to reproduce is a basic human right involve the destruction of that right.

I have come to the conclusion, however,

that, if this case is to be decided, as it

should be, be reference to principle, it is

not possible to draw any valid distinction

between sterilisation operations and other

operations which are likely to have a serious

impact on the patient. It may well be that

ordinary medical treatment including dental
treatment can be regarded as part of the
general care of the patient and would fall
within Robert Goff L.J.'s category of ttcontact

which is generally acceptable in- the ordinary

Marion 175 2/5/91

conduct of daily life." I do not find it

possible, however, to include in so mundane a
category an operation for the replacement of a

hip-joint or for the excision of a large

though non-malignant tumour. The

justification for major surgery on a patient

who lacks the capacity to consent must be

sought elsewhere.

In my judgment, the answer to this difficult problem is to be found by a

consideration of the public interest.

And then further down he says:

I have therefore come to the conclusion that, if the operation is necessary and the proper

safeguards are observed, the performance of a

serious operation, including an operation for

sterilisation, on a patient who by reason of a

lack of mental capacity is unable to give his

or her consent is not a trespass to the person

or otherwise unlawful.

view:

And he went on, though, to say, at page 1053 of the

There are, however, some operations where the

intervention of a court is most desirable if
not essential. In this category I would place

operations for sterilisation and organ

transplant operations where the incapacitated

patient is to be the donor. The performance

of these operations should be subject to outside scrutiny. The lawfulness of the operation will depend of course on the

question whether it is necessary or not, but

in my view it should become standard practice

for the approval of the court to be obtained before an operation of this exceptional kind

is carried out.

So, His Lordship was not suggesting that without

court approval the procedure would become unlawful. What he says, in our submission, is that it should

become standard practice for the approval of the

court to be obtained.	We say something similar to
that.	We say that where there is a doubt of any

kind, it should be standard practice to seek

approval, but in places where it is clear, a parent
or a guardian should not be required to seek

approval.

The judgments in Re F and in Re B, in our

respectful submission, we adopt the analysis of

those judgments made by Justice Strauss, do not go

Marion 176 2/5/91

so far as Your Honours are being asked in this case

to go, that is to declare in effect that such a

procedure undertaken without the consent of the

court is unlawful.

Now, I would like to refer to the overseas

authorities, if I may. We say, Your Honours, that

care must be taken in considering those

authorities. Australia has an interpretive
framework which is different to those that prevail

in the Canadian, United States and English

situation. In Australia we have the Family Law Act

which confers responsibility for long-term welfare

on the parents of the child, we have seen that in

section 63E and section 63F, and that includes a

responsibility for medical decisions.

The Act gives statutory recognition to the

need to protect the family unit, especially in
relation to the care of dependant children, and

that appears in subsection (b) of section 43.

Historically in Australia we have shown a marked

reluctance to interfere with parental rights. In

welfare cases, as Your Honours heard yesterday from

my learned friend Mr James, when he referred to

Goldsmith v Sands, courts will only interfere where

it is essential to the safety and welfare of

children in some very serious and important

respect.

In Canada and the United States there is a

constitutional basis for individual rights, so, in

a sense, we approach the question from slightly

different angles and we do not say that the

United States decisions are of no help, we say they are indeed helpful, however, care must be taken

when referring to them.

In each of the United States cases the courts

were concerned with straight out sterilization

procedures, not with any procedures such as we have

here where sterilization was an incident of the

operation but not the main reason for it.

As we have indicated, we rely upon In re F.

That case is significant in that what it does not

do is make new law as is sought to be made here and

Their Lordships declined to go so far despite the

invitation of Lord Griffiths.

McHUGH J:  I have some difficulty with that. In fact, I

would have thought that it was the Law Lords who

are making the new law in that particular case.

They carved out an exception to the rule that any

surgical operation needed consent. They were the

ones who made the new law.

Marion 177 2/5/91

MR RILEY: With respect, Your Honour, following the analysis

undertaken by Justice Strauss, they did not go

quite so far. They said, "this is what ought to

be" or "this is desirable" but they did not

undertake the additional step of saying, "without

it" or "that you must".

McHUGH J: But they said that any operation which is in the

best interests of the patient is a lawful

operation.

MR RILEY:  Yes.

McHUGH J: Well, that seems to me to have changed the law.

Certainly it expresses the common law in a way

different from what it was expressed In re Eve

which said that the common law was that every

surgical procedure required consent otherwise it

was an assault, and the House of Lords they

rejected the notion of consent and laid down an

objective test instead.

MR RILEY: Yes, that is so and to that extent perhaps they

have changed the law, but the area of law with

which we are here interested has not been changed

by the House of Lords. They have not taken that

step that you are specifically invited to take

here.

McHUGH J: They probably understood the argument for the

appellant, probably no more than this: they say

that this operation is unlawful at common law.

Now, if you want to validate it then you have got

to get some permission either under the parens

patriae jurisdiction or from the Family Law Court

or from statutory procedure.

MR RILEY: Yes, Your Honour, I understand they say that. At

the moment we would say, that is before the

judgment in this matter is handed down, that the

law is that you do not have to.

McHUGH J: Well before Re F was decided, there would be a

lot to be said for the view that this operation was

unlawful, without consent.	The question is, how
you got consent?

MR RILEY:  Yes, Your Honour. I should say in Re Eve that

that case really stands out on its own. No one at

this bar table, apart from dealing with questions

of the history of the parens patriae jurisdiction,

has relied upon it and indeed it has been

criticized in Re B, in Re Jane. In Re B perhaps I

should give Your Honours the references to the
criticisms of it by Lord Hailsham at - I have only
the All England Law Report reference - (1987)

2 All ER 206, but it is also reported at (1988)

Marion 178 2/5/91

AC 199. If I can just give you the page numbers

from the All England Reports. It is criticized by

Lord Hailsham at page 213; Lord Bridge at page 214;

Lord Oliver at page 219; in Re Jane by

Chief Justice Nicholson at page 77251.	Yes, I
think those are the references.

McHUGH CJ:	Thank you, Mr Riley.
MR RILEY:	The other much quoted case is that of Re Band in

particular what was said by Lord Templeman. We

submit that that has been correctly explained by

Lord Donaldson in Re F, WLR 1041 and page 19 to 20

of the Appeal Cases. In fact we find some support

in what was said by Lord Templeman in Gillick's

case, (1986) 1 AC 112 where he said at page 200 -

he was not dealing with this specific problem,

there dealing, as Your Honours are aware, with a
child who was obtaining medical advice, contrary to
the parents wishes, and that is the judgment where

the Master of the Rolls talked about the sliding

scale of parental control. At page 200 this was

said:

A parent is.the natural and legal

guardian of an infant under the age of 18 and

is responsible for the upbringing of an infant

who is in the custody of that parent. The

practical exercise of parental powers varies

from control and supervision to guidance and

advice depending on the discipline enforced by

the parent and the age and temperament of the

infant. Parental power must be exercised in

the best interests of the infant and the court

may intervene in the interests of the infant

at the behest of the parent or at the behest

of a third party. The court may enforce

parental right, control the misuse of parental

power or uphold independent views asserted by

the infant. The court will be guided by the

principle that the welfare of the infant is

paramount. But subject to the discretion of

the court to differ from the views of the
parent, the court will, in my opinion, uphold

the right of the parent having custody of the

infant to decide on behalf of the infant all

matters which the infant is not competent to

decide.

We suggest and submit to Your Honours that that is

the point from which you should consider this, that

is, that primarily it is the parents who have the

right to decide and this will be the exception if

Your Honours accept the invitation given to you by

my learned friends.

Marion 179 2/5/91

TOOHEY J: If you are right in that argument, and let us

take it away from the present case for a moment, if
the parents of a child, whether retarded or
otherwise, decide that some form of sterilization
is in the interests of the child and they approach
a doctor who is prepared to carry the operation out

on the basis that it is in the interests of the

child, and some years further on the child is - let

us perhaps assume the child is not retarded; the

child comes to adulthood, decides that the

operation was not in her best interests and then brings civil proceedings against the parents and the doctor, the sort of declaration that is sought

here would not, of itself, provide an answer to an

action for damages, would it?

MR RILEY:	No, Your Honour.
TOOHEY J:	It would simply put the parents and the doctor in the position of having to demonstrate that it was
in the best interests of the child that the surgery
be carried out.
MR RILEY:	Yes, Your Honour.

TOOHEY J: Whether that of itself is sufficient answer to an

action for damages in tort I do not know. What if

there was an order by the court authorizing the

procedure to be carried out? Would that provide an

answer of itself?

MR RILEY:  We would say, yes, Your Honour, in these

circumstances: if the matter is to be resolved by

the Family Court we would say it should be in two

steps. The first would be a declaration that the

proposed procedure is in the best interests of the

child followed by an authorization.

TOOHEY J: What does an authorization look like? Does it

authorize somebody to do something, or is it an

authorization that anyone may carry out this

particular surgery, or does it authorize Dr X to do

it?

MR RILEY: There could be any number of methods,

Your Honour, employed, and it would depend upon the

circumstances. It could authorize Dr X to perform

an operation on such-and-such a date, or it could

authorize the parents or the guardians to arrange

and ensure the carrying out of an operative

procedure by such-and-such a doctor within

such-and-such a time.

TOOHEY J:	Why would such an order of itself provide an answer to any action later brought by the child
against either the parents or the doctor?

Marion 180 2/5/91

MR RILEY: It would be, in those circumstances, an objective

finding that it was in the best interests of the

child.

TOOHEY J:  Do you mean it would operate as some form of estoppel, or what?

MR RILEY: Yes, Your Honour.

TOOHEY J: Yes, thank you.

MR RILEY:  One case in New Zealand is that which I have

taken Your Honours to, and I wish to refer to that

again simply to illustrate the burden that one

imposes upon parents in undertaking these

procedures, or undertaking the litigation involved.

At page 22, Your Honours will see there a citation

from a case. It in fact says it is from In re a

Teenager, but in reality it is from Re Gillick,

perhaps taken from In re a Teenager.	The citation
is:

When a court has before it a question as to the care and upbringing of a child it must treat the welfare of the child as the paramount consideration in determining the order to be made. There is here a principle

which limits and governs the exercise of

parental rights of custody, care and control.

It is a principle perfectly consistent with

the law's recognition of the parent as the

natural guardian of the child; but it is also

a warning that parental right must be

exercised in accordance with the welfare

principle and can be challenged, even

overridden, if it be not.

The alternative that every case should come

before the Court for determination, would in

my view place far too great a burden on

parents on whom many burdens are already

possible delays, the trauma and anxiety that	imposed. The cost of Court proceedings, the
Court proceedings involve, have been well
illustrated in this case, in which the parents
have been sitting in Court now for nearly 8
days, waiting for this decision. Such a
burden should not automatically fall on any
parent of a child where there is consensus that an operation to prevent menstruation would be in that child's best interests.

And that is the situation that we seek to adopt.

There are a number of other cases that

illustrate the burden upon parents:  Re K v Public

Trustee, that is the Canadian case to which

Marion 181 2/5/91

Your Honours have already been referred. If I can

refer Your Honours to page 278, at about point 5,

where the court said:

In the case on appeal, the trial

proceedings lasted five days.	The proceedings
in the Court of Appeal lasted two days.	The
parents testified and were subjected to lengthy cross-examination.

MASON CJ: This is only a repetition, really, of what was

said in the previous passage, is it not?

MR RILEY: Yes, Your Honour.

MASON CJ: There is no need to read that.

MR RILEY: Yes, I will not take you to that. If I can refer

Your Honours to In re a Teenager which was an

example of that, the comments made by the trial

judge at page 77-217. Unless Your Honours wish me

to deal with other point those are the submissions.

MASON CJ: Yes, thank you, Mr Riley. Mr Solicitor.

MR PAULING:  Your Honours, could I take up the proposition

raised by Your Honour Justice Toohey in relation to

tort and what the relevance of some court approval

would be in the event of a child, on reaching

maturity, deciding to sue. The approach, we would

submit, is the one to take is to analyse what the

question would be in deciding whether the tort had

been committed; and your first question would be

to say, "What was the duty that the parents owed to
the infant?". If the answer to that question was
that the duty was to act in the best interests of

the child in respect of physical health and the

parents had gone to court for approval, it is

difficult to see how in a factual way that could be

found to be a breach of the relevant duty.

BRENNAN J:	Why is it a case of duty rather than assault?
MR PAULING:	I characterize it as a case of a breach of duty

to see whether or not, or to analyse out whether or

not the parents in answer to the situation that

they have committed a tortious wrong in respect of

the child, might be able to say, "Well, this Court

approval has this effect".

BRENNAN J:  You are assuming that the cause of action is

negligence and not assault?

MR RILEY: That was the approach I took first, yes. That

was the way I sought to characterize the

appropriate or the effect of an approval in one

element of tort. The question that would arise in

Marion 182 2/5/91

a civil suit for assault or trespass, generally,

would involve the element that what was done was

unlawful and I suppose what then is sought to be
determined is that if there is Court approval then

it no longer would be unlawful for the procedure to

be carried out. But I just expose that process of

thought as it arose in the argument as one possible

solution to the relevance of an approval.

Your Honour Justice Dawson, in the course of discussion, wondered whether the welfare power in the Family Law Act might extend beyond the age of

18 years even though a person had become 18.

Your Honours have had handed up the decision in

Public Guardian v MA which deals with that

situation.

Your Honour Justice Dawson also returned to the theme as to whether or not, when you look at

the breadth of the welfare power, it does not get

to a point where it has got nothing to do with the

marriage relationship and therefore may well be

beyond the marriage power. And the answer seems to

be, when considering the impact of the marriage

power, that firstly one starts by looking at the

power of guardians and their interest in the

long-term welfare of children, then to say it

extends to all matters relating to the welfare of

the children of the marriage generally, although it

must be referable in some way to the marriage relationship, or at least incidental thereto.

DAWSON J: But that problem disappears largely, does it not,

with the cross-vesting provisions?

MR PAULING: Yes, it does and as far as this case is

concerned, Your Honour, when one looks at the

reading down provisions, firstly there are the

provisions that make it apply to the Territory,

then a whole new section consequent on the referral

of powers which has a reading down as though it

meant child of a marriage, as though it related to

the marriage relationship, the nub of it being that if there was a problem about the marriage power and the extent of welfare under it, it would not be a

problem in the Northern Territory. That is all I

wanted to say on that point, Your Honour.

Your Honours raise the questions as to the extent of the parens patriae jurisdiction in the

Northern Territory. The law as it was on

1 January 1911 in South Australia included the

Equity Act 1866. I have got copies of that. And

it gives the widest possible power, that is, all

the powers of the Lord High Chancellor of

Great Britain or the High Court of Chancery and

Marion 183 2/5/91

that carries over as part of the jurisdiction of

the Northern Territory Supreme Court.

Your Honour Justice Deane was concerned to

know whether there might be - and I took it to be

articles in other disciplines, rather suggesting

that perhaps judges were not the best people to be

deciding issues of this sort. Your Honour, we have

been unsuccessful in finding such articles although

Justice La Forest in Re Eve was rather critical of

the role or the ability of judges to deal with

this. It is, in fact, highlighted in the article

"Sterilisation of Mentally Handicapped People:

Judges Rules OK?" from the Modern Law Review.

Your Honours have the reference to that.

Justice La Forest said "judges are generally

ill-informed about many of the factors relevant to

a wise decision in this difficult area. They
generally know little of mental illness, of

techniques of contraception or their efficacy and

however well presented a case may be it can only

partially inform". That is to be contrasted with

the views, for example, of Lord Templeman in Re B

and Chief Justice Nicholson in Re Jane where it was

suggested that the Family Court was, indeed,

well-equipped.

Justice Brennan, yesterday, rather suggested

to my learned friend, Mr Jackson, that, really, the

form of an order that might be made is that

somebody be appointed a representative to give

consent which rather started to sound a bit like

wardship or appointing somebody a ward. There is

an article and three cases that are helpful on this

issue. The article is from volume 63 of the

Australian Law Journal in the family law section.

It is at page 762 and is headed "Source of the

Parens Patriae Powers in the Family Court". It

refers to three cases, which I will hand up and I

will briefly refer to one of them.	They are
In re L (An Infant), (1968) P, 199. Then there is K v Minister for Youth and

Community Services, a decision of Chief Justice in

Equity Helsham. That case was one where His Honour

ordered directly, without appointing anybody or

anything else, that an abortion operation be

permitted. So there was not the intervention or

any notion of making somebody a ward of the court

before the operation was carried out. Indeed, in

the way it proceeded it all sort of happened in one

day with a summons being taken out and served

instanter.

That is K, and the other one is Rolands v

Rolands, a case where the parents of a child, on

Marion 184 2/5/91

religious grounds, objected to treatment of

leukaemia. That is a judgment of Justice Wootten

and it is in 9 Fam LR 320. The case there involved

simply a direct order without, in the exercise of

parens patriae jurisdiction, going through the

notions of wardship.

GAUDRON J:  The Rolands v Rolands case, I take it now, must

go to the Family Court. That type of case must go,

I take it, now?

MR PAULING:	If the child was a child of a marriage in the relevant sense, occurring in New South Wales.
GAUDRON J:	Now, who initiates those proceedings in the

Family Court now?

MR PAULING: Well, it can be the parents of the child or any

person having an interest in the welfare of the

child. So presumably the Director-General of Youth

and Community Services, who was the applicant in

Rolands v Rolands. If I can just briefly refer to

Rolands v Rolands, at page 321. Do Your Honours

yet have that? If I can just read this passage, in

the middle of the page, the second page of the

report:

This court has a jurisdiction that has existed

for many centuries, going back into the Court
of Chancery in England, to act to secure the
welfare of children. It has power to

override, when necessary, the views of those

in charge of children, be those persons

parents, Ministers of the Crown, government

officials or otherwise. It is for that reason

that the Director-General of Youth and

Community Services has, following an approach

from the doctors at the hospital, come to the

court to obtain a decision as to what should

be done. In giving a decision I have one
primary responsibility under the law, and that

is to act in the best interests of the child

and to promote the welfare of the child.

And then in Re L, a judgment of the Master of the

Rolls, can I just draw attention to pages 156-157.

I will not read the passages but there Lord Denning refers to Gyngall, among other things, and the

thing that I note is that he is saying you do not

need to go ahead and make the person a ward of the

court, that is only procedure. The parens patriae jurisdiction is there to make orders in respect of

the welfare of a child.

Briefly, yesterday in the debate about

section 64 a question arose about characterizing it

as really defining powers rather than conferring

Marion 185 2/5/91

jurisdiction.	I merely want to draw attention to
Arnotts v The	Trade Practices Commission,
21 FCR 297 at	304 where, in discussing the
provisions of	the Trade Practices Act, it was put:

Rather, the remaining subsections of s 157

serve a dual function of the character
described in various High Court authorities
including R v Commonwealth Court of

Conciliation and Arbitration; Ex parte Barrett

and Vitzdamm-Jones, namely the creation of a

right (to have the Commission comply with a request) and the investment of a court with jurisdiction in respect of a "matter", the

giving of effect to that right by

administration of a particular remedy.

And the court there referred to Re Tooth & Co Ltd

(No 2), (1978) 34 FLR 112. There is a list of

other articles we have dug up. I will hand those

in to the Court officers and have them distributed.

Finally dealing with the respondents'

argument, it can be crystallized, we suggest, in

this way, that the respondent must argue that the

authorization is informed consent coupled with the operation being in the best interests of the child in all the circumstances.

What we say the Family Court can do by making an order is to determine judicially that all those

circumstances exist which make the operation in the

best interests of the child, and only in that

circumstance then could the parents lawfully

consent. And it is not to the point, we say, that

the question whether the operation was or was not

in the best interests of the child can be

determined afterwards with some possible consequent

penalty by way of criminal prosecution, civil

action or professional action against the doctor,

but that rather looking at it that way, and we

McHugh had to say about Re F, once one sees the	respectfully adopt what Your Honour Mr Justice
enormity of that step to say, "Here is the test.
There should only be one test arising out of the
hospital case, and that is, it will determine civil
and criminal liability. Were the doctors acting in the best interests of the child?". It does depart
from the fact that prima facie it is unlawful, and
we have contended that it is unlawful for the
parents to purport to give consent to such an operation and have it carried out.

BRENNAN J: 

Mr Solicitor, if an operation were carried out

without going to court and you proceed to prosecute
the doctor in the Northern Territory for assault,

Marion 186 2/5/91

and it was said, "I had the parents' consent", how

do you succeed?

MR PAULING: Well, I suppose that is why we are here. The

consent would only be effective as an authorization

if it was one recognized by law.	If the law said
the parents cannot consent - - -

BRENNAN J:  So there is a limitation on the power of

consent?

MR PAULING: Yes.

BRENNAN J:  So that consent in section 187 of the Code is

not a consent de facto, but a consent in law.

MR PAULING: Well the question is, if an assault is

committed, for example, on me and I consent, it is

plain enough that I have permitted it to the extent

that the law allows me to permit that to happen,

but we are here dealing, not with the consent of the person against whom force is applied, we are dealing with the consent of other people who are

substituting their consent for that of the child.

BRENNAN J:  In the ordinary case of the doctor performing a

minor operation on a child, his defence to a charge

under your Code would be, I had consent, and the

consent of the guardians is the consent of the

child for the purposes of section 187, is that not

so?

MR PAULING:  Yes, in those circumstances. I can see that it

is difficult to find a point of discrimination.

BRENNAN J:  It may be that what you are saying is that

consent in section 187 does not extend to consent

in a case such as this, because there is no power

of consent in a case such as this. What I am

pointing out to you is that that is to give

"consent" there the meaning of consent valid in

law, as distinct from a consented fact. Is there

anything which indicates that that is the way in

which your Code is construed or should be

construed?

MR PAULING: Well 26(1), the authorization provision, was

what led me to that proposition -

BRENNAN J: Yes, I appreciate that.

MR PAULING:  - - - which is in the exercise of a right

granted or recognized by law.

If the law did not recognize a right in

parents of a disabled child to consent to a

procedure such as under consideration. here then the

Marion 187 2/5/91

act would not be authorized under section 26.	It
also would not be justified or excused.

BRENNAN J:  You do not have to go to 26 in an assault case,

do you, you just go to 187? The elements of the

offence have not been established; you are not

looking for a defence.

MR PAULING:  Yes, I suppose one would have to incorporate

into 187 the notion of unlawful.

McHUGH J:  But why do you have to do that? I mean, the

person concerned has not given his consent. No

consent has been given so the doctor has got to say

the consent of the parent constitutes that person's

consent.:

"assault" means -

(a) the direct or indirect application of

force to a person without his consent -

MR PAULING:	Yes.
McHUGH J:	If you operate on a child he is incapable of giving his consent.

MR PAULING:  Yes. As I understand the proposition though,

that in an ordinary case, in an ordinary medical

procedure, doctors operate on the strength that the
parents have signed a consent, presumably because
the parents are said to have the right to consent.

But what we are coming to is seeking to see whether

there is some discrimination that ought to be made

because of the nature of this procedure.

BRENNAN J:  Am I right, what your proposition is that there

is no power in parents to consent, within the

meaning of that term in section 187, in respect of

procedures of this kind?

MR PAULING: Yes. That is where we would like the Court to

come to.

McHUGH J:	How do you distinguish between this sort of operation, the one concerned with in this case, and
a hip replacement.  What is the difference between
the two of them.  I will leave out hip
replacement - a cosmetic, let us say some form of
plastic surgery to improve the child's looks?
MR PAULING:	I suppose you look at the special nature of the

sterilization operation and one comes back to the
notion of a basic right that is being interfered

with, whereas to-do some cosmetic operation,

assuming it was not to make somebody hideous for

the purposes of begging, would not be interfering

Marion 188 2/5/91

with any - it would be interfering with the right
to not have people intrusively invade the body, but

we are not talking about something in the nature of

a right to procreate. That is why I think members

of the House of Lords in the Court of Appeal in

England were driven to start listing criteria that

really set this apart and one of them was the

emotive character of the notion and, of course,

that in itself can be traced back to a time when

there were baser motives for hysterectomy operations or sterilizations taking place.

But it is a matter of looking at the relevant

criteria. It is permanent. It cannot be restored.

It does involve the termination of that right to

choose whether or not to procreate which flows from

the sterilization. It is serious and intrusive in

its nature, and I suppose that, really, as I said

when addressing earlier, it is very difficult to

know where to draw the line, but it is not

difficult to see that this case is on the side of

the line that requires court approval. The fact

that one cannot discriminate - or take the hip operation, there is no doubt that that is very

serious, it is permanent and so on, but it does not

have the same notions attaching to it.

That is why I think in Eve, for example, there

was such long discussion about therapeutic and

non-therapeutic because the sterilization there

proposed was for that purpose. It did not have a

therapeutic element to it; the same with Re Grady.

But as we have noticed, Lord Hailsham rather found

all the discussion about therapeutic and non-

therapeutic totally unhelpful.

So that there is not by any process of logic

an answer that emerges. It is a question of

recognizing that here is a sort of procedure that

ought not to be allowed to be performed without

what we referred to in our submissions and comes

from the Court of Appeal, the third opinion.

McHUGH J: Courts have got to apply principles and develop

principles? What is the principle?

MR PAULING: Well, the starting point to the principle would

be that it is unlawful for a procedure of this sort

to be carried out unless an appropriate consent

were obtained and the princJple to be developed

would be that less serious and rather routine

matters that need to be carried out for the welfare

and protecting the health of children have been

accepted by the law to form a category of

exception, like necessity; like the ordinary rough

and tumble of ordinary life, those sorts of context

and so on, that we have come to recognize that it

Marion 189 2/5/91

is unnecessary for the court to be involved in

every decision that might be made as to whether a

child ought to have an operation or medical

treatment or take medicine; that we except from that area of illegality those matters which are

recognized by the community as being within the

province of the parents proper control and consent

and I suppose we would say that it is a right

recognized by law that parents ordinarily should be

able to consent to, let us say, an appendix

operation, but that a refusal to consent, as we

have seen in a number of the cases, may be

overridden in the interests of the child.

So that is one way of trying to find a

principle and develop it so that, prima facie,

children cannot consent and their parents cannot

consent for them. However, in a practical way in

life, the less serious matters, we say, are within

the province of the parents. It is a bit like

developing a sliding scale like Briginshaw v

Briginshaw, the more serious the operation, the

more seriously it has got to be taken, to a point

when really you should not make the decision as a

parent, but seek court approval. That is as far as

I can go. Those are our - - -

DEANE J:  Mr Solicitor, have the parties reached agreement

about an order as to costs in the event that you

succeed?

MR PAULING:  No, Your Honour, but we would not be seeking an

order for costs.

DEANE J: Should you not pay them in any event?

MR PAULING: In respect of the respondent?

DEANE J: Yes.

MR PAULING: Yes, Your Honour, but it would not be necessary

for there to be an order for costs to that effect.

DEANE J: So, so far as the parties are concerned -

MR PAULING:  So far as the parties are concerned,

Your Honour.

DEANE J:  - - - we do not have to worry about an order for

costs if you succeed?

MR PAULING:	No, Your Honour.
DEANE J: And can I also ask you this:	the proceedings here

commenced more than a year ago, have the factual

matters been proceeding in the Family Court and

what stage have we reached?

Marion	190	2/5/91
MR PAULING:	It has been set down on a number of occasions for that to be determined.	One went off because

the matter had come into this Court and on another occasion there was some problem with witnesses but

we expect that the matter will be set down shortly

and that the factual issues will be determined.

DEANE J:  So the view is not being taken that it has to

await a decision of this Court?

MR PAULING:  No, Your Honour.

DEANE J: Thank you.

MR PAULING:  To that extent, regardless of what the order

was, the fact is somebody is going to have to

determine whether it is in the best interests of

the child that the procedure be taken.

DEANE J: Unless the result was Re Eve.

MCHUGH J:	Re Eve?
MR PAULING:	Yes.
DEANE J:	Do not see anything significant
MR PAULING:	No, I do not, Your Honour.
MASON CJ:	You seem to have dismissed that as a possibility.
MR PAULING:	Yes, I did, Your Honour, and we would not be

here encouraging the Court to arrive at the

conclusion that the Supreme Court of Canada did in

Re Eve. If it were necessary to dissuade

Your Honours from that we would present argument.

Indeed, I mentioned it in my opening remarks that

there was a case that came from eugenic

sterilization.

MASON CJ: Yes, you did.

MR PAULING: Different notions apply in this country, in our

submission. Those are our submissions in reply.

MASON CJ: Thank you, Mr Solicitor. The Court will consider

its decision in this matter.

AT 12.49 PM THE MATTER WAS ADJOURNED SINE DIE

Marion 191 2/5/91