Secretary Department of Health and Community Services v JWB - [1991] HCATrans 110

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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
DAWSON J

Marion(2)

1/5/91

TOOHEY J
GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 1 MAY 1991, AT 9.49 AM

(Continued from 30/4/91)

MASON CJ: Yes, Mr Jackson?

MR JACKSON:

Your Honours, before my learned friend resumes,

may I announce a changed appearance. MR R.M. MUECKE
also appears with me.

MASON CJ:	Yes.	Mr Solicitor?
MR PAULING:	Thank you, Your Honour.	Your Honours, having

been stimulated by yesterday afternoon's debate I
have given considerable thought to the matters that
have been raised and reduced some of the points to
writing. If I could hand those up, Your Honours,
and then I will take Your Honours briefly through
them.
Perhaps, Your Honours, if I could deal with

them and take you to them before they are read in
their entirety. But before doing that can I just
address some questions that were raised yesterday.
Firstly, Your Honour Justice Gaudron yesterday put
to me that really the only controversy between the
parties to this suit was the proper interpretation
of the law. But the fact of the matter is when one looks at the appeal book at page 5 one sees the two
orders that are sought.
The background to be considered is, at the

time that the parents of this child came to wonder
about what they might do there were two judgments
of the Family Court that said that for them to
carry out such a procedure without an order of the

court would be unlawful. And there were two
judgments of the Family Court that said that they
could consent. They were in a situation where it
became necessary, either that they get a
declaration that it was lawful to do what they
intended to do or to seek court approval.
The situation as far as the appellant is

concerned is that the appellant says that a
declaration cannot be made, that they have the sole
power to consent and that is in contention between

the parties. The alternative order sought is an
order authorizing performance of hysterectomy and
ovarienectomy procedures, or alternatively a
hysterectomy procedure, and that similarly is
opposed and will be a matter of contention until it
is established to the satisfaction of a court that
the procedure is in the best interests of the
child, so that there is a factual and real
controversy between the parties. In that sense,
there is a matter upon which the court can

adjudicate. So that, whilst I may have conceded
yesterday that the real controversy was about the
interpretation of the law, that is not the case.

Marion

1/5/91

The fact is that there are real matters in contention.
Then Your Honour Justice Dawson raised with me

the point on a number of occasions that
section 64(1) contains powers that might be
exercised by a court, once it had jurisdiction and
this is really the nub of the submission that I
have put forward, ultimately leading to this
conclusion, that if section 64(1) does not support
the power of a court to make orders in respect of
welfare, there is nothing in Part VII to support
the power of a court to make orders with respect to
guardianship, custody, access, maintenance or in
respect of injunctions, and that is because, in the
process of the drafting changes that occurred in
1983 and 1987 and the removal of all matters
pertaining to children from the definition of
"matrimonial cause", the same drafting technique
has been used and it is the same as section 64(1).

TOOHEY J:

Do you mean by that, Mr Solicitor, that there is

no express power or jurisdiction in the Act to make
orders in respect of custody, guardianship or
access other than is to be found in section 64?

MR PAULING:	Yes, that is what I am contending, Your Honour.
BRENNAN J:	What about 63F?

MR PAULING: That is a variation of orders, Your Honour.

Section 63F(4) - - -

BRENNAN J:

And does not 63F provide the statutory framework

of guardianship and custody and provide for orders
that might be made in variation of the statutory
framework?

MR PAULING: That is one way to approach that section,

Your Honour, but if one looks in the Act for a
section that says the Family Court may make orders

with respect to the custody of, guardianship of or access to a child which is the form that one was
looking for an order in relation to welfare, it is

not to be found there. And we contend that 63F
suffers from the same defect of drafting, if it be
a defect, that is to say, it says what powers a
court can do. It can vary orders in respect of
guardianship and custody, but it does not say that
it can make orders.

Perhaps if one goes to section 70C, the injunction power, there is a good example:
Where proceedings are instituted in a court
having jurisdiction under this Part for an
injunction in relation to a child, the court

Marion

1/5/91

may make such order or grant such injunction
as it considers appropriate for the welfare of
the child -

Now, the approach of the draftsman there is, as in section 64(1), to assume that by force of some of other provision in the Family Law Act, by force of
some jurisdiction giving provision, proceedings
have already been instituted in the court having
jurisdiction.

McHUGH J: But why does not the court have jurisdiction by

reason of a combination of 3l(l)(d) and, say, 64?

MR PAULING:

Your Honour, in the submissions we suggest,

indeed, that those sections have to be read

together. We also add on section 63(1) and,
really, what one gets to is when one asks the
question, "What are the matters arising under this
Act?", then that is answered by saying all those
matters that are referred to in Part VII: custody,
guardianship, access, welfare and maintenance. So
that by a combination of those factors, and indeed
it is an approach that appealed to Justice Strauss
in the instant case, that one read section 64(1),
the power section, with 31(1) as a jurisdictional

section. And I am happy to hang my hat on that,
Your Honour, and go with it.
If I could take you briefly to the situation

and the changes of the Act. In 1982 when Fountain
v Alexander was decided in this Court, the Act -
and I think Your Honours have Fountain v
Alexander - contained a definition of "matrimonial
cause" that included matters relating to children;
and they are set out at pages 622 and 623 of the
judgment of Chief Justice Gibbs in that case. I draw attention to them because it was plain that
courts were given jurisdiction in respect of
matrimonial causes and such a matrimonial cause, at
that time, was:

the custody, guardianship or maintenance of,
or access to, a child of the marriage -

so that the existence and conferral of jurisdiction
was plain.
In Fountain v Alexander the question that

arose there was whether or not a court might
exercise wardship jurisdiction and in determining
that question reference was made to the provisions
of section 64. And Your Honour the Chief Justice
at page 633 and following discussed the nature of
the wardship jurisdiction, referred to Re D, an
English case, in which:

Marion

1/5/91

the Court exercised the jurisdiction -

that is a wardship -
by making a child a ward of court for the
purpose of preventing the sterilization of the
child which was to be carried with the consent
of the child's mother, the Court intervening
on the ground that the operation was not in
the child's interests.

Then, at 634, Your Honour sets out the provisions of 64(1) in so far as they were relevant and
including subsection (c).
The qualifications imposed on the wide

discretion to make an order given to the court by the sub-section are: first, as the opening
words indicate, that the proceedings must be
"with respect to the custody or guardianship
of, or access to, a child of a marriage";
secondly, that the welfare of the child shall
be the paramount consideration; thirdly, that
an order contrary to the wishes of a child who
has attained the age of fourteen years shall
only be made if, by reason of special
circumstances, it is necessary to do so; and
finally, that the power to make orders is
limited to orders "in respect of those
matters", referring to custody, guardianship
or access.
The real problem is posed by the

circumstance that the section, which arms the
court with the relevant power to make orders,
speaks only of.proceedings with respect to
guardianship, custody or access. It makes no
mention of wardship jurisdiction or of

wardship proceedings. The power to make
orders is therefore limited to the making of orders with respect to guardianship, custody

and access.

Importantly, Your Honour also noted - and it would
be our submission that the way in which the Watson
Committee frames its ultimate recommendation has
reflected this fact - on page 635 towards the
bottom about half-way through the paragraph:
It would be necessary that the proceedings for
the order fall within the description
contained ins 64(1). But, in some situations
at least, the proceedings may be so described
because they seek an order qualifying in one
respect the exercise of rights and powers

flowing from the earlier order. An order of
this kind would not of course constitute an

Marion

1/5/91

exercise of wardship jurisdiction because it
does not involve making a child a ward of
court. The fact that the making of the order
is dictated by the welfare of the child would
constitute no objection to its validity.

And in the end the Court decided that the court
under consideration did not have wardship
jurisdiction. Justice Stephen agreed with
Your Honour the Chief Justice's judgment there.
Now, when the Watson Committee made its

recommendations - - -

DEANE J: Mr Solicitor, I am a little bit lost. Exactly

what aspect of the case are we on now? Are we
still on the jurisdiction of this Court or have
we

MR PAULING: Yes, Your Honour. Sorry, no, we are dealing

with - - -

DEANE J:

We have passed beyond the jurisdiction of this

Court?

MR PAULING:	We are dealing with the question as to whether, under the Family Law Act, the court has power to
make such an order.
DEANE J:	The Family Court?
MR PAULING:	The Family Court, and the point that was put to

me by Justice Dawson was that no matter where you
look in the Act you do not find a section that
says, "The Family Court has jurisdiction to make
orders with respect to the welfare of the child"
and the argument runs that what you do find is what
sort of orders you could make and what sort of
matters you should take into consideration provided

he can get jurisdiction from somewhere else. The
argument I am advancing is that - - -

DEANE J: Except it seemed to have been all involved at one

stage with the jurisdiction of this Court?

MR PAULING:

Yes.

I am not now dealing with the

jurisdiction of this Court.

DEANE J:

We have finished with that?

MR PAULING:

Yes.

The way in which I dealt with that was

to - - -

DEANE J: Yes, I follow you, Mr Solicitor.

MR PAULING: - - - answer Justice Gaudron.

Marion

1/5/91

TOOHEY J: But, Mr Solicitor, so long as the welfare of the

child is a matter arising under the Act, then section 64 confers jurisdiction, does it not?

MR PAULING:

Yes, it does.

TOOHEY J: That is, confers jurisdiction on the Family

Court?

MR PAULING:

Yes.

you ask yourself what matters are referred to in
section 63(1) it is the matters arising under that

The argument may be elliptical, that when

part. The matters that arise under that part are custody, guardianship et cetera. So, that whilst
the drafting device that has been employed is in
many ways unsatisfactory one can finally get there
on that argument, and what I wanted to do was to
draw the Court's attention to the Watson Committee
Report that preceded the amendments in 1983, and to
draw the Court's attention then to the fact that
children were removed altogether from the
definition of matrimonial cause so that Part VII
became, as it were, a code and by that process to
answer the question whether the Family Court has
jurisdiction to make orders with respect to
welfare.

DEANE J:

And do you say that is the old jurisdiction that a

State supreme court, for example, would have?

MR PAULING:

I say that what was intended to be conferred

was the parens patriae jurisdiction, including
wardship, but without using the forms and
terminology of wardship.

DEANE J:

And some additional powers which a State court may

not have had?

MR PAULING: Yes, and it was intended that that be

exclusive. If I may hand up - I have photocopied

the cover and the pages that deal with wardship
directly from the Watson Report.

DEANE J:

Does it matter for your argument whether it was

intended that it be exclusive?

MR PAULING:

No.

I just note that in the Watson Committee

Report, and I have given Your Honours pages 8, 9
and 10.

TOOHEY J: Incidently, I think I said section 64 a moment

ago; I meant section 63 - - -

MR PAULING:

Yes, I went to section 63, Your Honour.

The

matter on page 8 really follows the history of it
and then in the middle of the page it says:

Marion

1/5/91

As regards wardship, the Committee is of the view that there is no need for a wardship
jurisdiction as such. In its present form
"wardship" is a mere fiction used by the
courts in order to assume jurisdiction to make
orders for the protection of the physical
welfare of the child, to protect the child
against perceived moral dangers and, less
frequently nowadays, to protect the child's
property rights. Insofar as there is still a
need for such a jurisdiction, it should be
vested, to the extent that the Constitution
permits, in courts having jurisdiction under
the Family Law Act. The Committee considers
it appropriate to ensure that the court has
the substance of the jurisdiction without its
archaic trappings. This can best be done by
expanding the powers conferred by section 64.
The Committee considers that this would
resolve doubts as to whether the
Family Law Act already conferred a
jurisdiction of this kind which were canvassed
in Fountain v Alexander.
Moreover in view of the doubts that exist

in relation to whether State Supreme Courts
have a residual jurisdiction to make a child
of a marriage a ward of court, the Committee
has concluded that in relation to a child of a
marriage it would be best if the jurisdiction
were to be vested exclusively in the courts
having jurisdiction under the Family Law Act
to the extent permitted by the Constitution.
Therefore the Committee is concerned to
establish clearly that the jurisdiction of
State Supreme Courts is ousted in this regard
and thus to eliminate the risk of continuing
jurisdictional uncertainties of the kind which
have attracted adverse comment from many
sources, including the High Court in
Fountain v Alexander.

So that what followed on from the Watson

Committee Report was that substantial amendments
were introduced into the Act in 1983.

DAWSON J:	Was that before or after the referral of powers?
MR PAULING:	It was before the referral of powers. What

occurred principally was that "welfare" was added
into section 64(1), but also the formulation in
relation to children in the definition of
"matrimonial cause" underwent some substantial
change and expansion.
Your Honours, the second reading speech picked

up what was in the Watson Report and indicated that

Marion

1/5/91

it was intended that the Family Court have
exclusive jurisdiction in respect of welfare in
these circumstances.

BRENNAN J:

What is meant by "welfare" in these

circumstances?

MR PAULING:

That any matter where the court ought intervene

to protect the best interests of the child is a
matter in respect of that child's welfare.

BRENNAN J: Ought intervene? On anybody's application or on

none?

MR PAULING: Well, the practicality is on anybody's

application because of the breadth of the Act as to
who may institute proceedings in respect of a
child, the child, a parent or any person having an

interest in the welfare of a child. So it is about
as broad as one can be. That is 63C.
In a case like Re D which is a sterilization

case, where ultimately a local borough council
appointed a welfare officer who commenced
proceedings to prevent the sterilization - and in

the four cases that went before Marion. They were
cases where by one means or another people having
an interest became aware that an operation was
proposed and then stepped in to prevent it.
The oddity, if you like, about this case is

that parents faced with the fact that there are two
judges of the Family Court who say that if they
have the operation done without getting a court
order they are doing something unlawful, are really
forced by that circumstance to either seek a
declaration as they have, or to seek court approval
as they have.
So that I appreciate, Your Honour, that it is

not something that exists in some sort of limbo.

It will be enlivened by circumstances arising which
call for the court to become involved.

TOOHEY J: But your proposition, as I understand it - your

end proposition - goes further than that because
assume that the court has jurisdiction in respect
of any matter touching the welfare of the child and
that jurisdiction in invoked by someone empowered
by section 63C to do so, it may be one thing then
to invite the court to decide whether the proposed
surgery is either for the welfare of the child or
not and to make orders accordingly, either by way
of - at least on one view - an injunction to
prevent the operation being carried out or perhaps
some declaration that it is in the interests of the

child that the operation by performed. And to

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1/5/91

those matters, no doubt, the wishes of the parents are relevant. But your proposition, Mr Solicitor,
as I understand it, is that the jurisdiction having
been invoked, the operation cannot lawfully be
performed unless the court authorizes that it be
performed, which obviously goes way beyond
questions of jurisdiction.

MR PAULING: Well, yes, but it comes from a different point

of view. The point Justice McHugh raised with me
yesterday was whether or not we rely on the Family
Law Act to arrive at that situation or whether we say that the common law had developed to such an
extent that, as a common law rule, parents must not
be able to consent to such operations.

TOOHEY J:

But you can only bring that within the umbrella

of the welfare of the child, can you not?

MR PAULING:	Yes.
TOOHEY J:	And I can understand that you might be inviting

this Court to lay down some general principle that
the welfare of the child necessarily requires the
consent of the court, but that is taking us way

beyond jurisdiction.

MR PAULING: Yes, it is taking it beyond jurisdiction but

the arguments I am putting now are merely focused
on the fact that, though curiously worded, the
scheme of the Act gives the court general power to
make orders with respect to the welfare of a child
and, indeed, in the Northern Territory, any child.
So that is the jurisdictional point.
Then where I go from there is to say, well,

let us have a look at whether or not there is an
obligation imposed by law on parents in these
circumstances to get court approval and this is where, in my other submissions, the proposal is
developed that what ought to happen is that the

court pronounce a common law rule to that effect.

DEANE J: But is not the order of your argument this, that

under the common law the assault on the child that
would otherwise be involved can only be excused
where necessity permits it by an order of the court
exercising the parens patriae jurisdiction if there
is such a court and then the next question is, is
there such a court in the Northern Territory, if
there is, is it the Family Court?

MR PAULING:

And the answer in the Northern Territory, it

can be either, the Family Court or the supreme
court because they both exercise jurisdiction under
the Family Law Act.

Marion	1/5/91
DEANE J:	But the Family Court has that jurisdiction will

ultimately depend on the construction of the Family
Law Act in the context of the common law?

MR PAULING: Yes. Yes, indeed, Your Honour.

BRENNAN J:

What are the provisions of the Family Law Act

which distinguish the position of the Northern
Territory from that of the States?

MR PAULING:

The first is a consequence of the referral of

powers, Your Honour, which brought with it reading
down provisions which I have referred to in the
submissions.

BRENNAN J: Is it only because of the reading down

provisions or are there some express provisions
which deal with the Northern Territory?

MR PAULING: There are some express provisions. It is in

paragraph 14 of the submissions. We look at
60E(3). It says:
This Part applies in and in relation to the
Territories.

What I had apprehended was that the structure of
the sections might be such that the question of
jurisdiction would not be severable, but it plainly
is because of the extension to the States, the
application to the Territories and the reading down
provisions to which I have drawn attention:

section 60F, in particular, 60F(2). The reason why
this became necessary was that in 1987 the words

"of a marriage" were omitted from 64(1). They were
removed. So it no longer refers to a child of a
marriage it just refers to a child, and so these
reading down provisions were necessary to support
the power in cases in which the reference might not
have gone far enough, that is to say, if the power
has to be supported under the marriage power then

this reading down provision would save it. But as
far as the Territory is concerned there is no
constitutional bar to the government making a law
that applied to any children regardless of whether
they were children of the marriage.
Your Honours, I handed up yesterday the decision of Chief Justice Ashe in Public Guardian
v MA and at pages 49 and 50 His Honour deals with
that issue, the last three lines on 49. What he is
doing is dealing with submissions that were made by
amicus curiae. It says:
Furthermore, he submits that, whatever

may be the position with regard to any
conflict with State powers or St~te

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1/5/91

legislation, there is a clear directive that
the provisions of Pt VII of the Family Law Act
apply to the Northern Territory.
Section 60E(3) is unambiguous. It provides
that "this Part applies in and in relation to

the Territories". Mr Burke argues therefore
that section 122 of the Constitution giving
the Commonwealth Parliament power to make laws
for the government of any Territories is a
sufficient head of power for the Commonwealth
in these circumstances without the necessity of considering the effect of section 5l(xxi) and (xxii) of the Constitution.

He refers to Bernasconi's case and a Northern
Territory case of Kearney; Ex parte Japanangka in the judgment of Your Honour Justice Brennan which
is cited there:
"It is beyond the capacity of the law of the Northern Territory or of the exercise of
any power which such a law confers to effect
the operation of a law of the Commonwealth to
destroy or detract from a right thereby
conferred unless a law of the Commonwealth so
provides, expressly or by implication."

So I think that answers the question Your Honour

raised. So if I can finish the -

BRENNAN J:

Can I just ask you one further question?

And

what is it that vests jurisdiction in the
Supreme Court of the Northern Territory?

MR PAULING: Section 63(1).

BRENNAN J:

Oh yes, thank you.

MR PAULING:

So if I may return to my first outline.

I was

on page 7 and there set out on pages 6, 7 and on
the top of 8, are just some of the statements that

That is Lord Griffiths in Re F and Lord Templeman favour the view that court approval is necessary. in Re Band Chief Justice Nicholson in the instant
case and we even say that Justice Strauss came

mighty close. We say that the common law has
developed to the stage where this particular sort
of operation stands on its own as one where, in
every jurisdiction, at least in relation to adults,
there is a law preventing such an operation being
carried out without court approval and that is the
point of the schedule that I handed up yesterday,

demonstrating that fact. And I yesterday read from
O'Toole, in the judgment of Your Honour
Justice Brennan, when I was discussing the fact
that the ratio of this case is binding on the
judges and there is a real issue, but· the other

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1/5/91

point was that Your Honour was saying that in
making law judges try to see that what they do
conforms to contemporary standards and contemporary
society and the argument we seek to mount then,
based on the legislative progress, is that there is
some evidence that can be looked at to demonstrate
that right around the country and in New Zealand
this particular operation is seen as being so
invasive as to require court approval and in two
places, South Australia and New South Wales, in
respect of children such laws exist.
It may be argued, well there is a convenient

way to deal with it, if every jurisdiction passed
legislation, then it would not be a problem, but it
is our submission that this Court can and should
pronounce that the common law has come this far to
recognize that the consent of parents, in respect
of an incapacitated child or person unable to
consent themselves, to an operation as invasive as
this is no longer sufficient and would not provide
an appropriate defence, in any event. But beyond
that, the law being not really settled in the end
by the judgments in Re Marion, in a practical sense
it is doubtful whether medical practitioners would
wish to proceed on such operations, without, in the
judicial climate, a court approval.

DEANE J:

You say the approach should be taken that the

consent of parents is no longer sufficient. There
is an implied concession in that, that unless
traditional common law be changed, it is

sufficient. Do you concede that that is so?

MR PAULING: Well, Your Honour, these sorts of operations

really only came to light in recent times - it is a creature of the 80s - so that perhaps the situation
of parental consent did not really arise in a
practical sense.

DEANE J:

I can see the basis on which necessity justifies

an operation on a child with the consent of parents
where what is involved is saving life or meeting a
direct medical hazard but when you pass into this
area where what is involved is social judgment as
to what is desirable or necessary for a future
life, I would be interested to see what the common
law has to say about the powers of parents to
authorize an operation of this kind.

MR PAULING: Well, just dealing overseas to start with in

Canada in Re Eve, the Canadian Supreme Court would deny that parents ever have that right.

DEANE J:

I was just probing what seemed to me to be a

concession in what you said.

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1/5/91

MR PAULING: Let me rephrase what I said, Your Honour, to

put it this way, that this Court should declare
that parental consent to an operation of the kind
under consideration is not adequate to render what
would otherwise be unlawful lawful.

McHUGH J:	But what, declare this as a matter of common law?
MR PAULING:	Yes.

McHUGH J: Well, assuming that that is the common law, do

you not still have to face up to section 63E(l),
because the Parliament has said that the guardian
of the child has the responsibility - - -

MR PAULING: For the long term future.

McHUGH J:

- - - for the long term welfare of the child.

And it may be arguable that even the States cannot
interfere by legislation with that statement?

MR PAULING:

I suppose that one would answer that by saying

that an operation of the kind under contemplation not

carried out for reasons of necessity without a court order

cannot be said to be in the interests of the long-term

welfare of the child.

McHUGH J: Well, if you look at the history of

section 63E(l) and the Watson Committee Report, it
seems clear enough that they intended matters of
long-term welfare to include matters in relation to
health, does it not?

MR PAULING: Yes, there is no doubt about that. Well, that

is where a difficulty arises and where other
courts, in grappling with the matter, have sought
to set this procedure aside as sui generis and say,
"Well, yes, that is all very well in relation to
normal matters - matters in which ordinarily
understood parents would have responsibility".
What is sought to be developed is the proposition

that this particular sort of medical procedure
attracts particular restrictions on rights, if the
parents have rights, and on duties in relation to
the preservation of the welfare of the child.

BRENNAN J: But it is not a unique procedure in one sense,

is it? I mean, the same sort of problem arises
with regard to sibling donations of
non-regenerative tissues - kidneys, for example.

MR PAULING: Yes, and in at least one member of the House of

Lords opinion, abortion would fit into the same
category.

BRENNAN J: Perhaps that should be left aside as having its

own problems. But the question really, perhaps,

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1/5/91

comes back to this - and I ask it based upon the
phraseology of Sir Samuel Griffith in 282 of the
Queensland Criminal Code - does the common law
provide for any power to consent to the infliction
of what is a permanent injury to health?

MR PAULING: Well, it can be, in a sense, answered in the

terms of the Northern Territory Criminal Code that
there appears to be an exception in relation to

medical treatment. But that then gets
somewhat -

BRENNAN J: Well, I am not sure that the terminology is the

same there as it is in the Queensland Code but it
just seems to me that if you take the kidney
donation case, for example, it is a very real
question whether parents or courts or anybody can

consent to that. And then if you look at
section 63(1), is there anything more than the
rights vested by law in the guardian of the child
available to serve the child's long-term welfare?

MR PAULING:

Your Honour is looking at 63E?

BRENNAN J: Yes. What I am asking is really do you not have

to start, as I think Justice Deane put to you, with
the common law and what is the role of consent with
regard to seriously mutilating procedures?

MR PAULING:

I suppose that one gets to the situation that

you cannot consent to grievous harm being done, but
in the Northern Territory, at least as far as the
Code is concerned which excludes the common law,

medical treatment is excluded. And I suppose that
if it came to an argument about it, there may be an
argument that a hysterectomy was not medical
treatment in the circumstances, which would get on
to the therapeutic versus non-therapeutic argument.
Was it necessary to preserve life, or the health of
the person, or was it merely a convenience?

I suppose one starts with the proposition that

young children unable to fully understand what
might be proposed in a medical procedure are
incapable of giving informed consent, and that the
older the child becomes and the more capable the
child becomes of informing itself, the child's
consent takes over from that of the parents.
Lord Denning described it as starting off with
control in respect of children and ending up as
mere advice in terms of the so-called parents'
rights.

TOOHEY J:

Does the proposition, Mr Solicitor, that the

consent of the parent is not sufficient a
proposition that goes to any form of invasive
surgery, or is it a proposition that is directed at

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surgery which deprives a woman of the power to
reproduce?

MR PAULING: That is another avenue to get to at that - one

can distinguish this form of procedure from others
because it interferes with what some courts
describe as a basic human right and that is the
right to - - -

TOOHEY J: Yes, but what is the proposition being put to us,

is it the wider proposition or the narrower one?

MR PAULING:

I would prefer to approach the matter narrowly,

Your Honour, but if it were necessary to argue from
the point of view that there was a basic human
right involved, as, indeed, I suspect the Human
Rights and Equal Opportunity Commission will be
arguing, then that would be a reason to distinguish
this form of procedure from others, even though the

others were invasive. I mean, appendectomy is an
invasive procedure although a minor one but it does

not interfere with any basic human right. So that
if that became a necessary stepping stone to seeing
why the parents' consent was inadequate, that is to
say that parents could not consent to the
destruction of the reproductive capacity which
involves a human right, then we would go that far.
This is a theme that is much rehearsed in the cases that I have set out in the submissions. It
is certainly the approach that was taken but with a
different constitutional background in both Canada
and the United States. That is Re Grady and Re Eve
where what was being looked at in Canada was - I
forget the name of it - the equivalent of a Bill of
Rights - the Canadian Charter of Rights and
Freedoms in America, of course, looking at various
of the rights, mostly in relation to privacy
conferred by amendments to the American
Constitution.

So that how one ultimately gets there in

setting apart is not a matter that can be
elucidated by simply saying, "I'll read all these
cases and the answer emerges.". It is a difficult
social problem. It is a difficult matter, in many
ways, to grasp and the arguments by which various
courts have decided that parental consent is
inadequate vary enormously.

DAWSON J:

So that what you say is this lies outside the

area of parental rights and duties, it lies outside
the area of marriage; that is how the common law

is reached?

MR PAULING:

Yes, I mean, that

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DAWSON J:

And then, under the marriage power, you give it

to the Family Court?

MR PAULING: Yes, I appreciate the problem there. But, no,

what you are dealing with is the relationship
between parent and child and saying in respect of
that parent, "You can consent to a whole range of
things but there are some matters that affect human
rights in relation to the child which require you
to get approval of the Family Court", which
approval could be got either by the parents going
and asking somebody like the Secretary of the
Department to bring the proceedings or bring the

proceedings themselves. No, I do not agree,
Your Honour, that the approach makes marriage
irrelevant to the decision that is being made.

DEANE J:

On your argument, can the Family Court order it

against the wishes of the parents?

MR PAULING:

If the procedure was demonstrated to be plainly

in the best interests of the welfare of the child,
yes. It is because the overriding consideration in
the end is dictated by the Family Law Act which
tells us that the welfare of the child is

paramount. So that would be a matter to be
determined on the evidence then available.

BRENNAN J:

Where would the consent come from then, in such

a case?

MR PAULING: Well, we would say the court, by approving the

operation, is, in effect, consenting. There are

two arguments there. One is whether the court is
actually giving substituted consent or whether the
court really is consenting to the parents
consenting.

BRENNAN J: But the proposition just put to you is, can the

court order it over the parents' objection?

MR PAULING:

Yes, it would be our submission that if

somebody with the welfare of the child in mind
brought proceedings in the court against the
parents in respect of the child, that could be
ordered. It would fit in with, for example, the
blood transfusion cases.

BRENNAN J:

So that parents then, though they retain their

guardianship and custody of the child, are unable to refuse consent and the consent is obtained, as
it were, by a court order.

MR PAULING:

That would be the way it would work in those circumstances, Your Honour, yes.

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BRENNAN J: But in the absence of a wardship jurisdiction,

how does the court have power to give consent?

MR PAULING: Well, we say that the effect of the amendments

in 1983 was to invest the Family Court with all the
substance of wardship but without the archaic
procedures and without the requirement to create

somebody a ward of the court. And that follows
from the analysis of Your Honour the Chief Justice
in Fountain v Alexander as translated into
legislation.
An example has been brought to my attention.

This is in the Court of Appeal in Re B (a minor).
Your Honours have that, I believe, in the Weekly
Law Reports.

MASON CJ:	What is the reference?
MR PAULING:	(1981) 1 WLR 1421. Just reading from the

headnote:
A child, who was born suffering from Down's
syndrome and an intestinal blockage, required
an operation to relieve the obstruction if she
was to live for more than a few days. If the
operation were performed, the child might die
within a few months but it was probable that
her life expectancy would be 20 to 30 years.
Her parents, having decided that it would be
kinder to allow her to die rather than live as
a physically and mentally handicapped person,

refused to consent to the operation. The
local authority made the child a ward of court
and, when a surgeon decided that the wishes of
the parents should be respected, they sought
an order authorising the operation to be

performed by other named surgeons. The judge
decided that the parents' wishes should be
respected and refused to make the order.

On appeal ..... :-

Held, allowing the appeal, that the question for the court was whether it was in the best
interests of the child that she should have
the operation and not whether the parents'
wishes should be respected; that, since the
effect of the operation might be that the
child would have the normal span of life of a
mongol and since it had not been demonstrated
that the life of a mongol was of such a nature
that the child should be condemned to die, the
court would make an order that the operation
be performed.

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Yes, I am sorry, that was not on our list of authorities, if I have people looking for it, but we will arrange, Your Honours, to provide copies of
the decision.

MASON CJ: Yes.

MR PAULING:

Your Honour, that really brings me to the final

questions that we raised. I have mentioned earlier
that it is our submission that if the Court
determines that court approval for such an
operation is required and that the Family Court is
the appropriate court, then the safeguards really
are contained within the Act itself; that a judge
is required to regard the welfare of the child as
paramount and we would not support, Your Honours,
an attempt to lay down rules in this Court that
were to be binding in every case, that each case
might have to be considered on its merits and that
provided the guiding principle is uppermost, then
there are safeguards enough.

BRENNAN J:

What is the guiding principle?

MR PAULING: That the welfare of the child is paramount,

Your Honour.

BRENNAN J:	What does it mean?
MR PAULING:	It means that when all the circumstances and

considerations are put together the judge who is
determining the matter has to take into account and
act on those things which advance the welfare of
the child, and not act on those things which

detract from it. It· is a value judgment. A case
like this which involves in the end quite a number
of value judgments creates difficulties.
But, Your Honours, we submit that the answers

to the questions in the stated case, the answer

that Chief Justice Nicholson did, that is, that the
parents do not have the capacity to consent.
The other thing is in relation to the welfare of a child being paramount, section 60D may well
qualify 63E to which Your Honour Justice McHugh
referred, that is to say that whilst the parents in
this case as joint guardians have the
responsibility for the long term welfare of the
child, a court may, if seized of the matter, do as
the court did in Re D and say, "Whilst this is what
the parents want to do and whilst they have a
responsibility in this, the welfare of the child
regards us to override it."

McHUGH J: That is not quite the question here, is it? One

question is whether the court itself.has power to

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authorize or prohibit or even order such an

operation. The first question is whether the
parents have the right to consent to such an
operation on the child.

MR PAULING: That is the first question, and as I indicated,

Your Honours - - -

McHUGH J: That does not depend upon the terms of the Family

Law Act except in so far as it may exclude it.

MR PAULING:

No, it is a common law notion.

DEANE J: But is not the common law this, that outside the doctrine of necessity no one has power to consent

to the infliction of such a procedure on anyone, be
it child or retarded adult?

MR PAULING: Leaving aside any question of a Criminal Code

or looking at it from a common law point of view,
Your Honour, yes.

DEANE J: Well then, do we not really need to identify what

is the best learning on the doctrine of necessity
in so far as the powers of parents are concerned
and where it stops?

MR PAULING:

I think there is considerable force in what

Your Honour says. All I can offer to do,
Your Honours, is to in effect arm somebody else
with the information, having obtained it myself.

DEANE J: For example, I notice there is a very good

discussion of it in the House of Lords in Re F but
it does not seem to be, or it does not indicate
that there is any great area of learning on the
question. Whether that is right or wrong I would
not know.

MR PAULING:

I think that is why, for example, Lord Griffith

found himself saying, "Look, I appreciate it would

why Lord Templeton, similarly, realized that he was be making new law in making a common law rule" and pushing against some invisible boundary.

DEANE J:

The next query is, there must have been in the

light of Re Eve and Grady a great deal of
discussion about whether the courts are equipped to
deal with this sort of question which must be
relevant to ascertaining what the law in this
country is or should be.

MR PAULING: There are, Your Honour, some references that we

can provide in respect of that.

DEANE J:

Not now, Mr Solicitor, but they are things that I

would be assisted by.

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MR PAULING:

Yes, Your Honour, we will do that, and it may

be convenient if we just extract it as a list of
materials that may be of help in bearing upon the
question.

McHUGH J: Mr Solicitor, I am not quite sure I just followed

some of your answers then. Are you denying that
the parents have got the right to consent to
operations on children other than operations of
necessity?

MR PAULING:

I am saying, in answer to Justice Deane, that

it is probably right that at common law there would
be a limit, if you like, to the authority of
parents to consent to operative procedures.

McHUGH J: Well, take a cosmetic operation, supposing that

it was a hair lip or some sort other physical
defect?

DEANE J:

I think the falt is mine.

I am using necessity in

the sense of a situation where informed consent
cannot be obtained. Necessity means circumstances
exist in which the consent of somebody else should
operate which, as I understand it, the way it has
been seen on occasion.

MR PAULING:	I misunderstood Your Honour.
DEANE J:	I was not meaning necessity in the sense of the

child will die tomorrow unless the operation takes
place.

MR PAULING: Well, in answer then to Your Honour

Justice McHugh, it is our primary submission that
the common law has developed and that this
particular form of procedure falls within a special
category and one that ought, because the law should
develop this way, no longer be, if it ever was,
within the capacity of parents to consent.

TOOHEY J: Well, if it is a special category then presumably

it is not merely because it is invasive, because
one can think of open heart surgery or a whole
range of surgical procedures that are as invasive
as this particular operation.

MR PAULING:

Yes, well then one would come to

TOOHEY J: Well, does it then lie in the fact that it is an

interference with the power or capacity to
reproduce?

MR PAULING: That is the way the English courts have got

there, Your Honour, to say it is irreversible and
it interferes with what many of the courts have

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described as a basic human right, the right to
decide to reproduce or not.

TOOHEY J: Well that does put it in a special category and

distinguishes it on that approach from other
surgical procedures.

MR PAULING: Yes, Your Honour. For examples, in Re F,

(1989) 2 WLR, in the Court of Appeal - I am reading
from page 1041, where Lord Donaldson of Lymington,
the Master of the Rolls, says:
Is sterilisation in a special category?
This brings me to the particular

treatment proposed in the case of F, namely

sterilisation. Mr Munby seeks to persuade us
that it is in a special category and in this I think he is right, although I would include in the same category abortion and surgical
intervention to enable an incompetent adult to
donate an organ during lifetime.

Your Honour Justice Brennan will see that is where
the three matters that I lump together, as it were,
get its origin.
However, there is a real distinction between
medical treatment undertaken with a view to
securing abortion or sterilisation and that
undertaken for a different purpose, for
example the excision of a malignant tumour,
which has this incidental result. It is only
the former type of treatment which the law
regards as being in a special category,
probably because of its irreversible and
emotive character in the light of the history

of our times. As I remarked before, the
common law adapts to sea changes in the
attitudes of the inhabitants of the country.

My conclusion that the law does recognise
a special category of treatment is based on
its attitude towards the sterilisation of
children as evidenced by the speech of
Lord Templeman in Re B -

and that is referred to and set out in my
submissions, and then he went on to qualify, to
some extent, what Lord Templeman had said and also
when dealing with the question of which court,
said:
First, he was saying that no such operation
ought ever to be undertaken without the
court's approval even if the parents or the
child consented and that if such an operation

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was contemplated the child should be made a
ward of court and the leave of the court
sought. Second, he was saying that, where
this was done, the decision was of such
difficulty and delicacy that it should be
undertaken not only by a High Court judge, but
by one having special experience.

That is where that is from.

McHUGH J: Could you just tell me something. Is there a

contradictor in this case? Is there anybody at the
bar table going to take up a position opposite to
yours?

MR PAULING:

In relation to whether the court has power,

Your Honour?

McHUGH J: Well, in relation to this question of the common

law rights of the parents or lack of common law
rights.

MR PAULING:

I honestly do not know, Your Honour. have read shows different shades of meaning. It is

What I

my understanding that the learned Solicitor for New
South Wales would certainly be making submissions about jurisdiction and power but as to whether anyone proposes to argue against me that this is a
case where no court approval is necessary, I mean
apart from the parents - - -

McHUGH J:

The parents do argue it, do they?

MR PAULING:

Yes.

I am sorry, I thought you meant beyond

that.

McHUGH J:

No, I was not sure what the parents' view was

having regard to the judgments.

MR PAULING: So, Your Honours, those are the matters that we

seek to put forward. Unless there are further
matters that I might be able to assist - sorry,

just one last thing. I did say yesterday that I
would hand up the relevant provisions of our
Criminal Code and I now have these to show that
there is not any equivalent provision to that in
the Queensland Code.
Your Honour Justice Toohey asked whether there

was anything in the second reading speech in
relation to section 95 which is the section by

which this matter comes before the Court. I note
in my written submissions that 95 does not talk
about a matter but we have had a look at the second
reading speech and it does not seem to mention

those provisions at all. So we have not been able

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to find anything of assistance in that, if the
Court pleases.

BRENNAN J:

Can I just delay you a moment longer, looking at

the definition of "assault" and bearing in mind
that there is no wardship jurisdiction, how does
one ever get to the stage of saying that there is
the presence of consent to an operation of this
kind?

MR PAULING:

We do not say there is not any wardship

jurisdiction, Your Honour.

BRENNAN J:

By that I mean the person becomes a ward of

court so that the court then assumes the power of
the guardian over the child.

MR PAULING: Yes, but what we say is the result and the

intended result of the legislative change that has
gone on here in the Family Law Act is that rather
than use the terminology of wardship and the fact
of making a person a ward of the court, the
Parliament has given to the Family Court, under the
general rubric of welfare, power to make the orders
that could be made by a supreme court if it had
made somebody a ward of the court. That is what
the Watson Committee and the draftsman of the Act
intended to pursue.

BRENNAN J: Yes, thank you.

MR PAULING: If the Court pleases.

MASON CJ: Yes, Mr Jackson.

MR JACKSON:

Your Honours, may I hand to the Court copies of our outline of submissions.

MASON CJ: Yes, thank you.

MR JACKSON:

As Your Honours will see, the case involves a

number of issues and we wish to direct argument
particularly on some of them.
The issues broadly speaking seem to be four.

They are: the powers of parents having
guardianship to authorize sterilization under the general law; secondly, whether that situation is

altered by the Family Law Act provisions; thirdly,
the jurisdiction of the Family Court in the
particular case, and fourthly, the Court's
jurisdiction to entertain the present appeal.
Your Honours, as to the last matter, we do not propose to address any submissions in addition to
those which were addressed on behalf of the
Commonwealth and on behalf of Mellifont in

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Mellifont v The Attorney-General. I want to deal particularly if I may with the first three issues
to which I have adverted but, Your Honours, perhaps
I should start at just one stage anterior to that
in the light of some of the observations made from
the Court.
Your Honours,I want to refer in just a moment,

if I may, to the position under the general law,
and I use that expression because the case is
concerned with the position in the Northern
Territory where it does not seem to be relevantly altered by statute except perhaps in relation to

the criminal law. Your Honours, I will come to the

detail of it in a moment. I should also perhaps
add as appears from the questions which were before
the Full Court of the Family Court, the issue
related to the position in the Northern Territory.
That appears particularly at page 11 of the record
where the Chief Justice sets out the questions as
restated, and Your Honours will see that in
question 1.
Now, Your Honours, as is apparent from our

outline of submissions, the contention which we
advance is that guardianship under the general law
does not carry with it the power to authorize the
sterilization of a minor for purposes of the kind
in question here.
May I first indicate the broad context in

which we would seek to put those submissions. Now,
Your Honours, if I could state the position broadly

first. To carry out a surgical operation upon a
person will be an assault unless the carrying out
of the operation occurs in circumstances where it
is authorized, or justified, or excused by law.
There are various circumstances in which the law authorizes, or justifies, or excuses the carrying out of operations or engaging in other more broad

conduct which might, were it not for the
authorization et cetera, constitute an assault.
Your Honours, one such circumstance is in relation to emergency medical procedures on a
person who is an accident victim and, perhaps, is
insensible. Another, of course, is where the
person upon whom the operation is to be performed has consented to it. Now, Your Honours, it is at
that point that a difficulty arises whether as a
person, such as a child, who is incapable of giving

consent personally. A difficulty which is, of
course, exacerbated where the child is mentally
incapable of understanding the nature of the
procedure involved, the need for it and the
consequences of it, and in such a case the child is
unable to consent to it both de jure and de factor

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Your Honours, the question then becomes whether any
other person may consent on behalf of the child.
Now, Your Honours, a possibility, of course,

is simply to say that the parents or guardians have
the power to give such a consent but there are features which we shall be submitting militate

against that view. One is the nature and
irreversibility of the particular operation. The
second consists of the reasons for performing it,
and I mean by that that it is not concerned with
some defect in the organ itself which is to be

affected by the operation. The third is the
possible conflict which exists between the best
interests of the parents and the best interests of
the child. What I mean by that is that what makes
the child easiest to manage may not be always be in
the best interests of the child itself.
Your Honours, the issue then becomes whether

the powers of a guardian do authorize the giving of
such consent and, Your Honours, if they do not, and
our submission will be that the cases suggest that
they do not and no case of which we are aware seems
to suggest that they ever have, the question is
then whether a court may do so and, if so, which

court. And, Your Honours, may I say two other
things before proceeding to deal with the case more
fully and they are these: the first is that it is
the absence of a power on the part of the child to
consent which provides the, or perhaps an, answer
to a question raised by Your Honour Justice Gaudron
yesterday, and that is, who are the parties to the
lease?
Well, one party, Your Honours, consists in

circumstances such as the present, in any event, of
the parents, the parents who seek to have an
operation carried out on a person over whom they
have no relevant control. The other party to the
proceedings is the child, separately represented,

or in particular circumstances by section 65 of the

of course, as contemplated in the particular case

Family Law Act or, again, in appropriate circumstances, by an organization which has
statutory power to provide such representation on
the part of the child.
Now, Your Honours, that part of the case, the

desirability for separate representation, and the
fact that the interests of the two sides to which I
have adverted do not coincide, or do not
necessarily coincide, is a point which is
emphasized by the Unite4 States cases and indicates
the nature of the proceeding as being one which
does affect the rights of two different parties.

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MR JACKSON:

Your Honours, the second feature which I wish

to mention at this point is something also

concerning the United States cases. I am conscious
of what Your Honour the Chief Justice said to my
learned friend yesterday but I do want, if I may,
to refer to a number of those cases, and I will do
so as briefly as I can, in support of the argument
dealing with the absence of power in the parents to
consent.
Your Honours, because the question of the

common law powers of the parents is a subject-
matter in which the northern American courts - by
that I mean the United States and Canada - have had
considerably more experience, one would think,
than, for example, those in the United Kingdom -
and, Your Honours, one might perhaps expect that
bearing in mind a number of features: one is the
very much larger population base, the population
mobility there has been in the United States, the
prevalence of divorce and remarriage at earlier
times, the multiplicity of jurisdictions and the
geographical spread of the nation and also the
unfortunate experiment with eugenic sterilization
which occurred earlier this century.
Your Honours, I also want to refer to them, if

I may, for another reason and that is that whatever
be the constitutional bases mentioned from time to
time in those cases, what does come through from
them in relation to the ambit of the court's
jurisdiction and parents' rights is a good degree
of ultimate good sense and humanity in dealing with
the question.
Your Honours, could I come back then to the

starting point and that is whether the parents'

consent is necessary. What I had intended to refer
to, before the question was raised a little more

fully by Your Honour Justice Deane, was simply to

give a broad indication of the passages in, for
example, the judgments of Lord Goff, both in the
Court of Appeal and in the House of Lords, in Re F

where the passages are quoted. May I take
Your Honours to those which I shall do in just a

moment. But before doing so, could I add,
Your Honours, that we will endeavour to provide
Your Honours with a rather fuller statement of

various cases which may touch upon the point. May
I do so in writing.
Your Honours, may I also say, in relation to

the articles which seem to be germane upon the
point, there are, perhaps, fewer since Re Eve than

one might expect but there are some. Could we give
Your Honours references to those a little later also. But the references to a large number of

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articles dealing with the position in the United intend to take Your Honours in the American cases.
Your Honours, if I could go then to the

passages quoted in Re F, (1990) 2 AC 1, and may I
take Your Honours first, if I may, to page 13.
This is part of the reasons for judgment of the
Master of the Rolls in the Court of Appeal and he
commences, Your Honours, at page 13, under the
heading "The requirement for consent". It is a
passage that goes through to page 17 including the
end of the paragraph above the heading on that
page. Essentially, what His Lordship is there
saying, at page 13B is:
that the court has no power either to dispense

with F's consent or to consent on her behalf - I should say that observation is made in a context
which Your Honours will see at the bottom of the
preceding page where it was held that there was no

parens patriae jurisdiction in the court. By a
curiosity of legislative repeal it had gone.
So, His Lordship then goes on to say, at page 13B:
We are here considering a common law right and
a correlative duty not to interfere with that
right. The right to the maintenance of the
inviolability of a person's body exists for
the benefit of all who inhabit our shores.
But it is not an absolute right. It is
subject to exceptions.

He refers to the need for it to "co-exist'' and,
Your Honours, I do not want to read the passages,
of course, but may I refer Your Honours to, for
example, the last paragraph commencing under that
heading, where he goes on to deal with the two
well-recognized exceptions to the common law right.
And Your Honours will see the way in which the
right is expressed:

common law right of bodily inviolability save
with the consent of the person concerned or of
someone with authority to consent on his
behalf.
Your Honours, may I pause at this point to say

two things. One is that we would not suggest that
a person under the general law simply is entitled
to consent on his own behalf to every possible

assault that might occur. A person is not entitled
to consent to an assault, to his own death, in
effect, nor is a person entitled to consent to
engage in pugilism except within some recognized

exceptions. And it is a debatable question,

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Your Honours, I suppose, whether a person, absent
statutory authority, is able to consent to donate
an organ to another person. Probably a person sui
juris and in possession of all his faculties is but
the answer is not 100 per cent clear.

BRENNAN J: But is not that really the underlying problem

here? If you start from the right as defined by
Lord Donaldson at page 13C, it is not that the

nature of the common law is the law of assault; it
is that consent per se never makes legitimate the

infliction of permanent injuries to health. That is reflected, for example, in Griffith's Criminal Code at section 320. It is not an assault to
inflict grievous bodily harm; it is doing grievous

bodily harm. The development of the law, if it is
development, is to the extent to which the
infliction of grievous bodily harm can be made
legitimate by the giving of consent.

MR JACKSON:

Your Honour, may I first say that I would eschew myself the word "development".

I say that

in passing, Your Honour. I do not want to be put

as one of the developing countries. I simply say

the common law is where it is. I am not going

ahead of it; we are in the mainstream - perhaps

behind it. Your Honours, having said that, may I

come to what Your Honour put to me. Your Honour, I
do not know that what Your Honour put to me really
results in any very different result in the
propositions which we are seeking to advance.

BRENNAN J: It would have this effect, Mr Jackson, would it

not, that there will always be two questions
involved in an issue· like this: one is, is there
consent to the particular procedure; the second is,
is the procedure for the benefit of the person?
And to answer the first is not necessarily to
answer the second.

MR JACKSON:

Yes, Your Honour, I quite accept that.

BRENNAN J:

And obviously, for example, whatever the

jurisdiction may be, if it is sufficient to allow
operations of this kind to be performed, there is
still a question as to whether Doctor X or Doctor Y
has consent to perform it.

MR JACKSON:	Yes.
BRENNAN J:	So consent is obviously always involved in some

form, but there seems to me to be, the underlying
doctrine of the common law is the question of, is
there benefit as well?

MR JACKSON:

Your Honour, that was in fact the second - I

would have put it differently - but that was the

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second matter that I wanted to mention before and

was just about to come to. What I was going to say
was that one of the qualifications to consent was
that there might be, as I said, some assaults, and
I put it that way, to which one could not
personally consent; the other would be that there
might well be a range of areas involving, for
example, operations, in relation to which a person,
other than the person upon whom the operation was
to be performed, could not consent. Your Honours,
I have put that a little obliquely for the moment,
but what I am seeking to convey by it is that it
may well be that, if one took the case of a child
and took a simpler, but equally ghastly kind of
operation from one point of view, a parent could
not simply have a child's foot removed so that the
child would be likely to make more money as a

beggar, we would submit. The quality of areas in
relation to which consent may be given itself is
limited.
Another example, Your Honour, closer to the area of the present case, would be to say that a
parent could not have a boy who was a good singer
castrated so he would make a lot of money as a
freak, as a male soprano in later life, that sort
of thing. That is an area where we would say,
Your Honour, it is something that the parent could
not consent to and equally, Your Honours, the case
of, for example, cutting off the foot and a case
such as the present is a case where the parent or

guardian just has no power to consent. A question,
of course, is whether anyone has a power to
consent? That question, in our submission, is
answered by saying two things: the first is that a
court has power to consent, if I could leave aside
the identification of the court for a moment; the
other thing is to say that in exercising the power
whether to consent or not, then of course one would have to see that the consent is given for a purpose
which is in the best interest of the child.

Your Honour, I do not know that I can go beyond
that at present.
Now I was referring Your Honours to page 13.

Your Honours will see there, under the heading
"Emergency Medical Treatment", a statement of the
position at common law in relation to that topic,
and then one can see under the next heading on page
14, "The Vicissitudes of Everyday Life", the
various conducts, some voluntary, some involuntary,
which would not give rise to an unauthorized or an
assault by the kind of touching involved, but I
would refer Your Honours particularly to the
quotation on pages 14 and 15 from the judgment of
Robert Goff, Lord Justice, in Collins v Wilcock and

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Your Honours, the passage goes on to, in effect, page 17.
In the House of Lords the issue is dealt with,

Your Honours, most fully by Lord Goff, and at
page 72 commencing at letter E and going through to
page 80. Your Honours, what appears to be there is
a rather fuller exposition of what His Lordship had
said in Collins v Wilcock, and His Lordship appears
to accept, at page 73 about letter D, what had been
said by Mr Justice Cardozo in Schloendorff v New
York Hospital that:
"Every human being of adult years and sound mind has a right to determine what shall be
done with his own body; and a surgeon who
performs an operation without his patient's
consent commits an assault ... "

After that His Lordship goes on to deal with the question whether and when a mentally disordered
person is incapable of giving consent:
when, medical treatment or care ..... can be
regarded as lawful.

And he looked, at the bottom of that page, and says he was:
searching for a principle upon
which ..... recognition may be given to a need,
in interests of the patient, that treatment
should be given.

He refers in the next paragraph to the "principle
of necessity" which had been developed under the
general law and, Your Honours, that goes through, I
think, to the end of the second new paragraph on
page 74 and he comes back in the next paragraph to
the question of absence of consent, or the

inability to consent, and then at the bottom of
page 75, says:
But from them can be derived the basic
requirements, applicable in these cases of
necessity, that, to fall within the principle,
not only (1) must there be a necessity to act
when it is not practicable to
communicate ..... but also (2) the action taken
must be such as a reasonable person would in
all the circumstances take, acting in the best
interests of the assisted person.

Now, His Lordship elaborates upon that somewhat in
the next paragraph on page 76 and, Your Honours, I
do not think there is much point in trying to
paraphrase what goes on then until one comes to

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page 79 where, between letters A and B,
His Lordship refers to Re D:
a vivid illustration of the fact that a highly
qualified medical practitioner, supported by a
caring mother, may consider it right to
sterilise a mentally retarded girl in
circumstances which prove, on examination, not
to require such an operation in the best
interests of the girl.

Your Honours, that case shows the difference, in a sense, or is an example of the potential difference

in interests of the parent and the child. He then
summarizes the position in the remainder of that
paragraph so far as the United States and what he
regards the Australian position, but His Lordship
does not appear to differ from the view that if
there were a parens patriae jurisdiction then that
would be the place where consent might be given.
His Lordship then proceeds, towards the bottom

of the page, to say that the court's approval
should be sought although, Your Honours, it seems
right to say that he is not quite saying that it

must be sought. Your Honours, one confesses to a
little difficulty in quite seeing what the
conclusion being arrived at there is in that regard
in terms of must or should, but the result of it
all seems to be, Your Honours, that the
circumstances in which such an operation might be
performed if there is no power in the child to consent and there is no power in the parent to consent, then what does seem to appear from the
case is that at least the court is recognized as
having the power to give such a consent, and the
consent being spoken about there seems to be a
consent to the performance of the operation in
question.
Now, Your Honours, I was speaking so far about

the need for consent, and the position under the
general law appears to be as is referred to in
those passages which I have mentioned.
Your Honours, there have been, of course, some
modifications as it were, and I use the term a
little inexactly, in the Northern Territory by
reason of statute and Your Honours have been
referred to the various provisions of the Criminal
Code which seem possibly to be germane upon the
topic. They are sections 25, 26(1), 26(3), 149,
187 and, Your Honours, there were two provisions
which were, at the last bound volume, sections 108,
88 and 189. They have been amended and they now
form section 188. It is a consolidation of the

provisions rather than anything substantial. I do
not know if that appears on the copies my learned

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friend handed you. Perhaps I could give Your

Honours additional copies of those. The amending
Act appears in the last part of it.
Your Honours, of those provisions, section 25

seems to declare what otherwise one would have
thought might be the law, and then section 26(1)
indicates the range of cases which are authorized
and Your Honours will see that paragraph (a) speaks
of -
a right granted or recognized by law.

Paragraph (b) is self-explanatory. Paragraph (c)
is -
in obedience to the order of a competent
authority.

Paragraph (d) speaks -
pursuant to authority, permission or licence
lawfully granted -

and then it is expressed to be subject to
subsection (3), and Your Honours will see a matter
to which I adverted earlier in subsection (3),
namely, that one cannot authorize one's own killing
or grievous bodily harm being inflicted except in the case of medical treatment. Your Honours, one

goes from there to section 149. Your Honours, that
confers a duty on a -
person having charge of a child under the age
of 16 .....
(b) to use reasonable care and take reasonable
precautions to avoid or prevent danger to the
life, safety or health of the child -

and then, section 187 defines "assault" and
Your Honours will see that paragraphs (a) and (b)
do not contain anything that is very surprising.
They refer to the need for consent and then, in
section 187 (c) -
other than the application of force -
(c) when rescuing or resuscitating a person or
when giving any medical treatment or first aid
reasonably needed -

et cetera. And then, paragraph (e) seems to be a
paraphrase in effect of what had been said by

Lord Goff in the Court of Appeal. If Your Honours
go two pages over from that you will then see the
new section 188 which puts together the former

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sections 188 and 189 that makes assault an offence
and then subsection (2) contains a number of
circumstances which, in earlier days, might have been called circumstances of aggravation, giving
rise to potentially heavier penalties.
Your Honours, the other statutory alteration

appears to be the Emergency Medical Procedures Act

to which Your Honours were referred yesterday. I
do not think I need to go particularly to that.
Your Honours, otherwise the general law applies and
that brings me - I am sorry it has taken a little
while to get there - to the question, "Does the
general law empower the guardian to give consent to
such an operation?"
Your Honours, that is an issue which has been

dealt with in the United States and may I go to
some of the cases and I will do so as briefly as I

may. The first is Stump v Sparkman,
(1978) 435 US 349. In that case, Your Honours, the
Supreme Court held that a judge who had authorized
ex parte a sterilization operation on the
application of the mother had had jurisdiction to
do so under the Indiana statute conferring on a
court general jurisdiction - the familiar type of
general jurisdiction giving provision.
Could I, in that regard, Your Honours, take

Your Honours to page 357, about point 2. I should
perhaps mention it was, in a sense, a very bad case
factually in that the daughter - the application
was made ex parte, the judge heard it, in effect,
in his room, made the order, the girl was
sterilized, no one told her she had been sterilized
until later when she got married, could not have
children and went back, in a country way, to the
doctor who had been the family doctor and had
performed the operation and he told her the reason

why. She then sued, amongst other people, the
judge who had granted the order and the question

was whether the judge was liable, the issue being
whether it was or was not within jurisdiction.
The case, however, refers to an earlier

decision of one of the State courts dealing with the question whether the parent had power in any

event. Your Honours, at page 357, at about
point 2, Their Honours refer, say they:
cannot agree that there was a "clear absence
of all jurisdiction" -

and Your Honours will see then the Indiana
provision set out which conferred the general jurisdiction of the judge. Your Honours, the

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court, at page 358, about point 8, referring to the
judgment being appealed from said:
The Court of Appeals also concluded that

support for Judge Stump's actions could not be
found in the common law of Indiana, relying in
particular on the Indiana Court of Appeals'
intervening decision in A.L. v G.R.H. In that
case the Indiana court held that a parent does
not have a common-law right to have a minor
child sterilized, even though the parent might
"sincerely believe the child's adulthood would

benefit therefrom." The opinion, however,
speaks only of the rights of the parents to consent to the sterilization of their child and does not question the jurisdiction of a
circuit judge who is presented with such a
petition from a parent.

And I would invite Your Honours to read the
remainder of that paragraph.
Your Honours, the minority referred to that

decision also at page 366. First of all,
Your Honours, in the fourth line from the page
where they say - the case is referred to, I should say, in footnote 3 but the introduction to that is
in the fourth line, at page 366:
In Indiana, as elsewhere in our country, a
parent is authorized to arrange for and
consent to medical and surgical treatment of
his minor child. And when a parent decided to call a physician to care for his sick child or arranges to have a surgeon remove his child's
tonsils, he does not, "normally" or otherwise,
need to seek the approval of a judge.

But they add the qualification, which Your Honours
will see, there is a -

general authority of a parent was held -

and so on. I would refer Your Honours also to the
last two sentences in the paragraph in the footnote
commencing "Contrary to the Court's conclusion".
Now, Your Honours, the view of the parents'

rights taken in that case and, of course, referred
to without disapproval by the judges, is consistent

with other decisions in the United States. Could I
take Your Honours to In re Grady, (1981) NJ 426 A

2d 467. Your Honours, the nature of that case
appears at the commencement of the report itself at

page 467, point 1 in the left column. Your
Honours, could I just say that Your Honours will
see that it is described as being a case where:

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Parents of a non-institutionalized
daughter .... sought appointment of a special
guardian authorized to consent to the

sterilization.
That approach, namely, the appointment of

someone to consent, appears to be the underlying
procedural approach taken in the United States

cases. The cases appear to assume that that is the
way to go about it which involves, of course, the
underlying view that the parents themselves do not
or potentially do not have the power to consent.
Your Honours, I think I have perhaps gone a

little too quickly to that case. May I ask

Your Honours to keep it for just a moment. I
should have gone first to the case referred to by
the supreme court and that was AL v GRH,

(1975) 325 NE 2d 501. Your Honours, I suspect the
Court may not have that and I wonder if I could
hand Your Honours copies of it?

MASON CJ:

Thank you.

page 501, immediately after the reference to the
judge's name about two-thirds the way down the

MR JACKSON:

Your Honours will see from the right column on

page, that the nature of the proceedings in that
case, that is:
a declaration of the right under the common
law attributes of the parent-child
relationship to have her son, G.R.H.,
sterilized.
The boy, age fifteen, had suffered brain
damage as the result of -

a car accident. So, Your Honours, the issue was

clearly raised in that case. And Your Honours will

see, at page 502, in the second new paragraph in
the right column, where their Honours say:
Secondly, the facts do not bring the case within the framework of those decisions
holding either that the parents may consent on
behalf of the child to medical services
necessary for the child, or where the state
may intervene -

and so on.
Permanent sterilization as here proposed

is a different matter. Its desirability
emanates not from any life saving necessities.
Rather, its sole purpose is to prevent the
capability of fathering children.

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We believe the common law does not invest

parents with such power over their children
even though they sincerely believe the child's

adulthood would benefit there from. This
result has been reached -

and so on. Now, Your Honours, that is the case to

which the Supreme Court referred. May I go back
then, Your Honours, to the case to which I came a
little prematurely, In re Grady.
Your Honours, the judge had granted the order

that had been sought and the public advocate and

the Attorney-General appealed. Your Honours, the
courts opinion commences at page 469 and
Your Honours will see at page 470 to page 471 what had been decided by the court below, and could I
refer particularly to page 471 at the bottom of the
left column, where the primary judge had:
found power to authorize substituted consent
for sterilization in the inherent parens

patriae jurisdiction - And then, Your Honours, at the bottom of the right
column on the same page, Their Honours say:
We are well aware that the decision before us is awesome. Sterilization may be
said to destroy an important part of a
person's social and biological identity - the
ability to reproduce.

And they go on to elaborate upon that proposition
throughout that paragraph. Your Honours, could I
just say that the passage from Skinner v Oklahoma,
and I will give Your Honours the case a little
later, is one in which the supreme court per
Mr Justice Douglas described the right as being

basic. And Your Honours, it does, of course, have

a fundamentally different character from really any
other aspect of the body or a personality and that
is the capacity to reproduce, in effect, oneself,
or the capacity at least to attempt it.
Your Honours, at page 473 in the left column

in the first new paragraph, Their Honours refer to
a matter which is of some importance and that is
the inappropriateness of seeking to characterize
the nature of the operation as being, on the one
hand, "compulsory" or on the other hand
"voluntary"in various circumstances and Your
Honours, I shall not read out the paragraph, but I
would ask Your Honours to refer to it and it
concludes by saying:
Thus, what is proposed -

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is really -
neither "compulsory" nor "voluntary," but as
lacking personal consent because of a legal
disability.

Then in the next paragraph they say that they intend to begin by considering the right to obtain
sterilization voluntarily, and that seems to be a
reference to the right of an individual who is
capable of deciding whether to do it or not, to do
so. At page 475 in the left column, number (3),
Their Honours are speaking, and Your Honours, if
one takes the passage out of context it may seem to
contradict the proposition I was putting, but they
say:
We need not determine here the full range

of persons who may assert such a right on

behalf of the incompetent. The parents are

unquestionably eligible to do so. The
question of who besides the parents has
standing to represent the purported interests
of the incompetent can await future
determination. Nevertheless, we believe that
an appropriate court must make the final
determination whether consent to sterilization
should be given on behalf of an incompetent
individual. It must be the court's judgment,
and not just the parents' good faith decision,
that substitutes for the incompetent's

consent. To the extent that the trial court
held otherwise, we disagree.
Now, Your Honours, the precise role that may

be played by a parent, of course, may vary in the

circumstance. It may well be that part of the
parent's responsibility, if I could use the
expression loosely, in relation to a child would
encompass, in effect, a kind of obligation to bring

such an application in appropriate circumstances.
But what is clear from the passage to which I have
just referred is that the court did not take the
view that the parent had the power to make the
final decision.

DAWSON J:

Does it encompass the view that the parents have

the power to refuse?

MR JACKSON: Your Honour, I think the answer is no.

would seem -

DAWSON J: Well, what part does the parents' decision play

at all?

MR JACKSON: Well, Your Honour, the parents' decision may be

a decision as a practical matter to be the ones to

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institute the application. It may be in
circumstances such as those Your Honour just
posited to be persons actively seeking to oppose

the application. Could I give an instance of the

latter case. It might well be that one had a
situation which was in a sense the obverse of the
case that was decided by Justice Heilbron in In re
D, and that is where a child might be in an institution ~nd the institution be the body which

was seeking sterilization. Your Honour, it may be
that the parents would be the ones who, in addition
to any guardian ad litem, were seeking to oppose
the making of such an application.
Your Honour, one can see there are sometimes

very great difficulties in actually keeping, and I
do not -

DAWSON J:

What I had in mind: the ultimate decision,

however, is to be made without reference to the
parents' rights or duties.

MR JACKSON:

What Your Honour says is right, but if I might

put it slightly differently. The ultimate decision
is what is in the best interests of the child.
Now, it is right to say, of course, that children

tend not to exist entirely in a vacuum. Most

children have some family who are alive. One may
have to take into account to some extent the
matters that whilst they go on the one hand to the
best interests of the child, do at the same time
reflect the interests of the parents.
Your Honour, all I am simply saying is that some
things may be capable of a double characterization,
but in the end the ultimate question is the
interests of the child.
Your Honours, at page 475 in the first new

paragraph in the right column Their Honours refer
to the abuses which had occurred in the past and go
on to say towards the end of that paragraph that -

the sterilization decision involves a variety
of factors well suited to rational development
in judicial proceedings, a court can take
cognizance of these factors.

They go on to say they routinely do so in adoption
and child custody cases and thought they were in
some respects analogous. Could I refer
Your Honours to two-thirds of the way down that
page to where Their Honours say:
All three affect important aspects -

and say that -

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independent judicial decision making is the
best way to protect the rights.

And, Your Honours, at the bottom of the page:
Where an incompetent person lacks the mental
capacity to make that choice, a court should
ensure the exercise of that right on behalf of
the incompetent in a manner that reflects his
or her best interests.

DEANE J: They seem to be treating it almost as a matter of

agency by necessity in the question being, "Who in
the circumstances has the agency?"

MR JACKSON:

Your Honour, that is certainly one way in which

it can be characterized.

DEANE J:

I was not suggesting it was right it just seems to

be the way they are putting it.

MR JACKSON:

No.

Your Honour, what one sees, of course, in

these cases is approaches which, in terminology,

vary. As one might expect one sees in some cases,
as in this case, a greater reference to
constitutional rights, but underlying it all
appears to be a recognition of the fact that the
parents cannot consent simply by virtue of their
capacity as guardians.
Your Honours, at page 479, they, having

referred to a number of State statutes, said at the
bottom of the left column and towards the top of
the next - they held the relevant:
statutes do not restrict the authority of the
courts -

and said -

The inherent parens patriae jurisdiction of
our Chancery Division is broad enough to
encompass the decision whether
consent ..... should be given by a court on
behalf of a person -

And, Your Honours, the words "on behalf of a
person" would tend to support the way in which
Your Honour charaGterized it a moment ago -
who lacks the capacity to give or withhold
consent for himself.

'fheri they go on to deal with the ambit of that

jurisdiction on that page and the next. And,
Your Honours, really nothing that is said, one

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would think, would seem any different if a court in
Australia were saying the same thing.
Your Honours, that passage goes on to page 480

and I should mention one thing, Your Honours. On
page 480, the first new paragraph in the right
column, Their Honours say:
We are aware that the weight of authority

is against us. Courts in several states have
found that, without legislative authorization,
they -

meaning the courts -
lack power to grant the relief requested here.

Your Honours, what that seems to mean, if one looks at the cases to which they refer which Your Honours
will see include Stump v Sparkman to which I first referred - what they seem to be saying is that, in
other cases, it has been held that without some
legislative provision, albeit a general
jurisdiction conferring provision of the kind
referred to in Stump v Sparkman, there is no common
law power in the court to do so.
Now, Your Honours, that seems a slightly odd

characterization of what was the provision in Stump
v Sparkman but, Your Honours, the general
proposition to which I am advancing does not seem
to be affected by what is said there.

DEANE J: What, do they say, that the Supreme Court is wrong

on the basis that it was not a matter within the
competence of the Supreme Court to determine?

MR JACKSON:

Your Honour, I do not really think they are

saying the Supreme Court is wrong. One has a
little difficulty quite following what is being

said in that paragraph but it is certainly true -
Your Honours, I am not really certain -

DEANE J:

Do not take time on it, Mr Solicitor.

MASON CJ:

What about the last sentence?

Does that not

suggest that the were wrong?
We agree with the minority of courts that have
found inherent power to decide these issues.

MR JACKSON: Well, Your Honour, it probably does, yes. It

suggests the supreme court was wrong. Yes,
Your Honour, it may well.

McHUGH J:

But what they were citing was Stump when it was

in the Courts of Appeal, was it not?

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MR JACKSON:

Yes, and then they had the reference to the

reversal.

McHUGH J:	Yes.
MR JACKSON:	Your Honour, may I be relieved from attempting

to work out what they were endeavouring to mean by
the particular reference? Could I take
Your Honours to page 482. In the second paragraph,
in the left column, they say:
First -

these are the various conditions they say are
applicable -
it is ultimately the duty of the court rather
than the parents to determine the need for
sterilization. It is true that "the custody,
care and nurture of the child reside first in
the parents."

And Their Honours proceed. That is the first

thing. The second thing appears in the paragraph
numbered (11) and this is a matter of some
importance:
we fully endorse the procedural safeguards
employed by the trial court. In every case
where application is made for authorization to
sterilize an allegedly incompetent person, the
court should appoint an independent guardian
ad litem as soon as possible.

And, Your Honours, then there are various other
safeguards referred to and, finally, at page 483,
immediately above VIII in the right column, they
say:
These factors should each be given appropriate
weight as the particular circumstances

dictate .... The ultimate criterion is the best
interests of the incompetent person -

in question.
Your Honours, the broad approach taken in that

case was taken also in Ruby v Massey,
(1978) 452 F Supp 361 - a slightly earlier case - a
decision of the United States District Court, by
Judge Blumenfeld. At page 363, under the heading
"Statement of the Case", the nature of the case was
an injunction ordering various hospital and
physicians employed by it:
to "refrain from refusing" to perform surgical
hysterectomies on their three · ·

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non-institutionalized mentally retarded
children.
Your Honours, from there one goes to page 365,

under the heading "The Parent-Child Relationship''.
Now, immediately under that, Your Honours:
Where a parent decides to call a physician to
care for her child, she may give lawful
consent for him to administer that medical or
surgical treatment which, in the doctor's
professional opinion, is necessary or
advisable -

Now, Your Honours, that is discussed throughout
that paragraph and at the bottom of the same
column:
But this case is not concerned with the
general problem of medical services for a
child to which her parent may consent, nor
with the correlative duty upon the parent to
provide them -

and then, Your Honours, the proposition is expanded
upon in the first new paragraph on page 365 in the
right column. At page 366, in the right column,
about two-thirds the way down, His Honour refers
specifically to the parents' inability to consent.
He says:
The fact that in this case the parents seek to
have the children's rights exercised in favor
of sterilization, rather than against it, does

not affect the character of the right. They
may neither veto nor give valid consent to the
sterilization of their children.
It is this lack of authority in the parents that creates the problem presented by this

case. Without authority to give consent
themselves, the parents looked for a remedy
that lay immediately at hand.

Your Honours, at page 367, in the first new
paragraph on the page, His Honour refers to the
fact that:
This law suit is unmistakably a poignant

cry for help from these children uttered in
their behalf by their parents. These children
are what they are; they are unable to come to
terms with reality sufficiently to make the
decisions which are only theirs to make.

Your Honours will see, immediately after that, a
reference to note 18. Note 18, at the bottom of

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- MR JACKSON, QC

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the page refers to the fact that there had been

court appointed guardians ad litem. I mention that
because there is a further reference to it later
which is germane. At page 369, Your Honours will
see, two-thirds of the way down the right column,
His Honour says:
All that this court has ruled is that the
plaintiffs are entitled to present their
request for consent to sterilization to a
state court through use of the statutory
procedure.21

If Your Honours go to footnote 21, Their Honours,
refer to:
The risk in leaving the decision to have

the sterilization operations in the hands of
the parents because of the potential conflict
of interests -

Your Honours, that is a theme which seems to recur.

DAWSON J:

Where do they find .the jurisdiction, in the

parens patriae concept, in the concept of a
constitutional right, the right to privacy? I see
that Roe and ..... keeps popping up throughout these
judgments.

MR JACKSON:

Yes.

Your Honour, the jurisdiction, absent

statutory provision other than a broad statute
conferring, in effect, the jurisdiction of a court
of chancery, really, I suppose would come from a
parens patriae jurisdiction. That is where it
seems to be based, Your Honour. That is
essentially it, I think.

DAWSON J:

And the enforcement of the constitutional right

to privacy, that is irrelevant? Well, not
irrelevant, but then takes a back seat, at least?

MR JACKSON:

Yes.

Your Honour, the American cases sometimes

tend to be difficult because there are really

several questions that can be involved. One tends
to be, of course, Your Honours - these issues are
not absent in Australia but how the US District
Court or courts on appeal from it themselves
acquire jurisdiction. Now, that may well be
something which depends upon hanging the case on a
constitutional aspect.
Having got to the court, one then sees the

court dealing, of course, with a number of matters
including things arising under the general law or

under the State law. But, in dealing, for example,
as was the case in the case to which I have just
referred, with a federal court dealing with the

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position of State courts, what seems to have
happened there is that the federal judge is saying,
"The case is here, in effect, because there is
reliance upon a constitutional guarantee or right,
ergo this court has jurisdiction.", but what the
court does in exercising the jurisdiction is to
examine what the law is of the State and the State
court has the parens patriae jurisdiction which it
can exercise.
Your Honours, I was about to move from that -

and I am nearly at the end of these, I hasten to
say - to In re Mary Moe, (1982) 432 NE 2d 712.
Your Honours, that was a case where a guardian
sought an order permitting a sterilization
operation so far as her daughter was concerned.
The daughter was an adult who was mentally retarded
so that the facts are not especially apposite.
However, I should refer Your Honours to page 716 in
the right column where there was reference to the
fact there was:
no specific Massachusetts statute granting a
guardian the power to authorize a

sterilization operation - Some statutes conferring guardianship and care and

custody in quite general terms were referred to and
then, in the last line of the main text on
page 716, Their Honours say -
Since sterilization is an extraordinary and
highly intrusive form of medical treatment
that irreversiply extinguishes the ward's
fundamental right of procreative choice, we
conclude that a guardian must obtain a proper
judicial order for the procedure before he or
she can validly consent to it. Guardians and
parents, therefore, absent statutory or
judicial authorization, cannot consent to the

sterilization of a ward in their care or
custody.

There is a reference, Your Honours, at the bottom
of page 718 to:
The Probate Courts in this Commonwealth

have general equitable power -

they are speaking about Massachusetts -
to act in all matters relating to
guardianship.

Then, Your Honours, at page 719, in the left
column, there is a heading towards the bottom of

the page, "The right to choose sterilization". I

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will not go to what is said under that except to
come to the end of paragraph 13 of it on page 720,
the top of the right column where there is a
reference to:
Compare Custody of a Minor (parental rights do
not clothe parent with life and death
authority over children).

At page 721, in the paragraph commencing 16-18
there is again reference to the fact that the
interests of the child, or the person in question,
is different from the interests of the applicant or
its guardian and of the need for separate

representation. And Your Honours, at page 723 in
note 12 at the bottom of the page, there is a
reference to the fact that ultimtely the interests
are:
And Your Honours, at page 723 in note 12 at

the bottom of the page, there is a reference to the
fact that ultimately the interests are:
the interests to be served here are those of
the ward.

Your Honours, could I go then to in the Matter of AW, a decision of the Supreme Court of Colorado.
Again, it was an application for a court order
authorizing sterilization of a mentally retarded
minor. The nature of the application appears at
page 367, left column, in the first paragraph of
the reasons for judgment, and then at page 368
Your Honours will see in the paragraph commencing
under the heading I, on the left side of the page,
there is a reference Your Honours to thetttheories
of eugenicstt as "the basis for compulsory
sterilization" and the fate of it. That goes on,
Your Honours, for a couple of pages and at page 370
the position of the parents and guardians is
discussed in the first new paragraph on that page,

where they say: Simply allowing the parents or guardians
of the mentally retarded person to substitute
their decision and consent to sterilization
for that of the incompetent person is not an
adequate solution to the problem.

And they go on then to elaborate upon that in that
paragraph, and I would refer Your Honours to the
whole of the paragraph, including the reference at the end of it in the right column to what happened
in Stvmp v Sparlarlan and, .Your Honours, in the next
paragraph commencing (2), about three-quarters of
the way down the column:

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Rather than parents or guardians, a court,
using uniform criteria, must be the ultimate
arbiter on this matter.

Your Honours will see in note 6 a reference to the
fact that:
Courts dealing specifically with this issue have ruled that absent specific statutory
authority, the parental right to consent on
behalf of a child to medical services
necessary for the health of the child does not
encompass the right to consent to
sterilization.

Your Honours, there is a reference on page 373
under the heading III, to the general jurisdiction
of the district courts in Colorado, which they say
conferred - they are in not very surprising or
different form and, Your Honours, on page 374(4),
the court's authority is discussed, together with
the ambit of the "inherent parens patriae
jurisdiction" as it is described, and Your Honours
will see at the bottom of the left column that one
decision which has been made was:
whether to authorize a kidney transplant from
an incompetent to his gravely ill brother.

Your Honour, those are the parts to which I wish
there to refer.
Your Honours, the last United States case to

which I wish to go, is in the Guardianship of

Hayes, (1980) 608 P 2d 635. The nature of the
proceeding appears at page 636 in the right column
towards the bottom of the page; a petition by the
mother for an order appointing her the guardian of
the person and specifically authorizing the
operation, and at the bottom of page 637, dealing

with jurisdiction:
Persuasive authority for the principle that courts of general jurisdiction do have
jurisdiction over a petition by a parent or
guardian for an order authorizing
sterilization is found in the United States
Supreme Court opinion in Stump v Sparkman.

Your Honours, at page 638, left column, two-thirds
of the way down, after referring to a grant of
jurisdiction in general terms:
Under this broad grant of jurisdiction the
superior court may entertain and act upon a
petition from the parent or guardian of a

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mentally incompetent person for a medical
procedure such as sterilization.

Your Honours, on the same page, two-thirds of the
way down the right column, after reference to "In
re Hudson":
We hold the Superior Court of the State of
Washington has authority under the state
constitution to entertain and act upon a
petition for an order authorizing ..... the
court has authority to grant such a petition.

Your Honours, at page 639 there is a reference for
the ''Standards for Sterilization" and could I refer
Your Honours particularly to the discussion of that
in the left column under that heading, and it goes
on again to describe the history of it in the
United States. At page 640, in the last paragraph
in the left column, there is a reference again to
the potential lack of identity of the interests of

the parents and child. Your Honours, may I just
say in emphasizing that, I make not the slightest
suggestion of anything adverse to the parents' care
in the particular case. They say:
Of great significance for the problem

faced here is the fact that, unlike the
situation of a normal and necessary medical
procedure ..... the interests of the parents of
a retarded person cannot be presumed to be
identical to those of the child.

And they go on to describe that throughout the
whole of that paragraph.
Your Honours, could I refer also to the fact

at page 645 - if Your Honours look in the right
column, first new paragraph, they refer to an
annotation revealing -

that to date no court has held that a parent
has the power to order sterilization of his
child, whether a minor or adult.

Your Honours, we are having some copies of that
article made and I will arrange that to be

delivered to Your Honours. The way in which it is
put perhaps overstates the position. It accurately
states what the article says, but the article draws
attention to the fact that the only relevant case
dealing directly with the powers of the parents to
the time it was written appeared to be L v GRH,
which is the case just referred to immediately
after that reference in In re Hayes and that is, of
course, the case that was referred to without

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disapproval by the Supreme Court in Stump v
Sparkman.
Your Honours, I should have said in that last

reference I gave at page 645 that was a reference
made in the judgment of a judge who did not form

part of the majority. I do not think that matters.
Your Honours, could I move from that to the

Canadian decision in In re Eve, (1986)
31 DLR (4th) 1. Your Honours, this is a case which
does not deal with children, but I wanted to refer

to it for a couple of reasons. One is that it does
in some respects equate the positions of children
and persons who are adult but not mentally

competent. The second is that it contains what was
regarded by some at least members of the House of
Lords in In re Fas being a convenient statement of
the parens patriae jurisdiction; and also,
Your Honours, because it is a case which contains some highlighting, we would submit, of the absence
of power on the part of a parent or guardian to

consent to the procedures. I will do so very
quickly if I may.
Your Honours, at the bottom of page 4 to the

top of page 5 there is a reference to the first
judgment, and Your Honours will see that the first
judge took the view correctly, in our submission,
that whilst a parent or committee could give a
valid consent for some procedures, it could not do
so in respect of sterilization where it was purely
of the kind in question here.
At the bottom of page 6 a similar view was

taken by Mr Justice MacDonald in the intermediate
appellate court, and he refers at page 7 in the
second and third paragraphs to the view taken by
one of the other judges in the intermediate

appellate court. Your Honours will see at page 9

His Honour states the general issue in the first
four lines saying:
The Court is asked to consent, on behalf of
Eve, to sterilization since she, though an
adult, is unable to do so herself.

The discussion about the parens patriae
jurisdiction commences at page 13 and goes through

to page 22. Your Honours will see on page 14 in
the second-last paragraph on the page, about two-thirds of the way through the paragraph:
Wardship thus is merely a device by means of
which Chancery exercises its parens patriae
jurisdiction over children. Today the care of
children constitutes the bulk of the courts'

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work ..... wardship cases constitute a solid
guide to the exercise of the parens patriae
power even in the case of adults.

Your Honours, page 15, first new paragraph, in the
case of children there was a custodial
jurisdiction, an inherent jurisdiction to make them

wards. Your Honours, an underlying view of the
parens patriae jurisdiction may be seen at the
bottom of page 16 where there is a reference to
Wellesley v Duke of Beaufort, and the jurisdiction
is particularly referred to at the bottom of the
page where Lord Eldon said:
... it belongs to the King as parens patriae,
having the care of those who are not able to
take care of themselves, and is founded on the
obvious necessity that the law should place
somewhere the care of individuals who cannot
take care of themselves, particularly in cases
where it is clear that some care should be
thrown around them.

Now, Your Honours, in the first new paragraph on
the next page, page 17, Your Honours will see that
Lord Redesdale had said that -
even where there is legislation in the area,
the courts will continue to use the parens
patriae jurisdiction to deal with
uncontemplated situations where it appears
necessary to do so for the protection of those
who fall within its ambit.
even where there is legislation in the area,
the courts will continue to use the parens
patriae jurisdiction to deal with
uncontemplated situations where it appears
necessary to do so for the protection of those
who fall within its ambit.

He refers, in the next paragraph, to the fact that
from Wellesley v Wellesley:
it seems clear ..... that the situations in
which the courts can act where it is necessary
to do so for the protection ..... have never
been, and indeed cannot, be defined.

Your Honours, the court, in that case, took the
view that the court had no power to grant consent.
Your Honours, we would seek to arrive at a
different view, but that the conclusion arrived at
by the court is one which seems to be based on
considerations that they regarded as going to the
nature of the operation in question in the sense
that it was something to which, in effect, there·

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1/5/91

simply could not be consent given by the court.
Your Honours, it really is, in a sense, a question

of how one treats the ambit of the power. We would
submit the American cases on that aspect are more
correct.
Your Honours, I said I would give a reference

to the observation of Mr Justice Douglas, or the
supreme court per Mr Justice Douglas, about there

being a basic civil right of man. That is in
Skinner v Oklahoma, (1942) 316 US 535, could I give
Your Honours copies of that and the reference is at page 541, at the top of the page, where there was a
reference to the fact that the legislation - and
the legislation, Your Honours, was State
legislation providing for the sterilization by
vasectomy or salpingectomy of habitual criminals,
and it was held that the court was dealing with:
legislation which involves one of the basic
civil rights of man. Marriage and procreation
are fundamental to the very existence and

survival of the race. The power to sterilize,
if exercised, may have subtle, far-reaching
and devastating effects. In evil or reckless
hands it can causes races or types which are
inimical to the dominant group to wither and
disappear. There is no redemption for the
individual whom the law touches.

And Your Honours will recall those were
observations which were made at a time before the
full effect of the racial experiments carried out
by the Nazi regime had become familiar.
Your Honours, the English position, in our submission, is likely to become that which we have

submitted is correct. Your Honours, I say likely
to become because it is not entirely clear that it
is not already what I have submitted it is and,

Your Honours, could I go to the two cases which appear to be germane on that point.

The first is In re B, (1988) AC 199. Now,

Your Honours, re B was the decision of the House of
Lords in circumstances where an intellectually
impaired 17 year old - when application was made by
the local council seeking an order that she be made
a ward of the court and that leave be given for her
to undergo a sterilization operation.
Your Honours, at page 202 through to 204,
Lord Hailsham, whilst accepting the proposition of
Justice Heilbron in In re D, that is at page 203,
Your Honours, the paragraph commencing between
letters E and F, about the irreversible nature of
the operation and so on, proceeded to say he found
the Canadian Supreme Court's analysis of the

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history of the parens patriae jurisdiction helpful
but could not accept their conclusion. At
page 205, Lord Bridge referred also to In re D,
between letters C and D and Lord Templeman, at the
bottom of the page 205 expressed the view:
In my opinion sterilisation of a girl

under 18 should only be carried out with the

leave of a High Court judge. A doctor
performing a sterilisation operation with the
consent of the parents might still be liable
in criminal, civil or professional

proceedings. A court exercising the wardship
jurisdiction emanating from the Crown is the
only authority which is empowered to authorise
such a drastic step as sterilisation after a

full and informed investigation. The girl
will be represented by the Official Solicitor
or some other appropriate guardian; the
parents will be made parties if they wish to
appear and where appropriate the local
authority will also appear.

GAUDRON J:

Can we assume that the same sort of thing would happen in the Family Law Court?

MR JACKSON:

Yes, Your Honour.

I was going to come to the

provision which authorizes the court to require
there be separate representation for a child a
little later. I think it is section 65. But,
Your Honours, no doubt the parents should be
parties. Perhaps I accepted too much; I do not
know that the local authority - that seems to be
particularly directed to English conditions but it
may well be that bodies having responsibility for
child welfare - statutory bodies, I mean - would
appropriately be joined as parties in order to
contribute what no doubt they are qualified to do.
Could I say, Your Honour, that in saying that

one recognizes, of course, that the parties
involved in the proceedings may be subject to the
costs of the proceedings whether orders are made or
not. But, no doubt the bodies which are concerned
to provide funding for them would have to give very
serious consideration to applications for support
in that regard.
Your Honours, I have referred to what was said

by Lord Templeman, at pages 205 to 206, and the
other - - -

DEANE J:

Mr Jackson, might I divert you for a moment.

Lord Templeman refers to the need for:

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a sufficiently overwhelming case ..... to

right - justify interference with the fundamental

and so on. What would you say on that terminology?

MR JACKSON:

Your Honour, might I say first that if one

takes it literally, it would probably not be the
test that the majority would regard as apposite
because the test would seem to be what is in the

best interests of the child. But it perhaps seems
unlikely that he was attempting to define or to lay

out a test different from that. What one suspects
His Lordship was saying was that one would
recognize, in making a decision of that kind, the
importance of it from every point of view and
particularly the fact that it was irreversible.

DEANE J: But if you simply put it, what is in the best

interests of the child, that is a little bit liable
to be misconstrued, is it not? I mean, must not
the question be whether the circumstances are so
extraordinary and overwhelming that a power to
interfere with the basic rights should be
exercised?

MR JACKSON:

I do not know that I am disagreeing with

Your Honour, what I am seeking to say is this, that
one starts off with - Your Honour, I do not have
the precise words of it at the moment in front of
me, but the words of, let us say, the provision of
the Family Law Act that uses the expression "best
interests of the child" or words to that effect.
Now, of course, the meaning of that, and its

application to particular circumstances, depends so
much on what the circumstances are and what I was
seeking to say was that when the nature of the
procedure that was sought to be carried out was one
which had such far-reaching and permanent effects

on the child and perhaps on the body of the child,
on the capacities of the child and perhaps on the
personality of the child, one would expect a strong

case to be made out. Your Honour, I do not know
that I am doing more than seeking to paraphrase in
saying that.

Your Honour, perhaps I should say one thing before moving from that case and it is this:

it is
not clear that the other members of the court
rejected what was said by Lord Templeman although
it is right to say that they did not expressly
accept it.
Could I move from that, Your Honours, to In re

F, (1990) 2 AC 1 and to the reasons for judgment of

members of the House of Lords. Now, Your Honours,

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if one goes first to Lord Griffiths at page 69,
what Lord Griffiths says at the top of the page is
that:
In the United States and Australia the
solution has been to declare, that in the case
of a woman who either because of infancy or
mental incompetence cannot give her consent,
the operation may not be performed without the

consent of the court.

His Lordship goes on then, at the bottom of
page 70, to say that:
The common law has, in the public

interest, been developed to forbid the
infliction of injury on those who are fully

capable of consenting to it. The time has now
come for a further development to forbid,
again in the public interest, the
sterilisation of a woman with healthy
reproductive organs who, either through mental
incompetence or youth, is incapable of giving
her fully informed consent unless such an
operation has been inquired into and

sanctioned by the High Court. Such a common
law rule would provide a more effective
protection than the exercise of parens patriae
jurisdiction which is dependent upon some
interested party coming forward to invoke the

jurisdiction of the court. The parens patriae
jurisdiction is in any event now only
available in the case of minors through their
being made wards of course.

He went on to say that he would declare, and
Your Honours will see what follows in the remainder
of that paragraph - - -

DAWSON J:

Where did he get that jurisdiction from?

I mean,

one suspects that if the parens patriae

jurisdiction had extended beyond minors he would

have found it there. But not being able to find it
there, does he just pluck it out the air?

MR JACKSON:	Your Honour, may I put it this way: what one has is a situation where one is speaking about - if
I could leave aside the case of minors altogether,
Your Honour, what one is talking about is a case
where it is proposed that in respect of a person -
if I could speak of a person without further
qualities for the moment - it is proposed by
someone that there be some surgical operation
carried out on the person. I will not go back to
what I said at the start, really, but that person is incapable of consenting to that because of lack
of capacity. But a person who suffers a lack of

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capacity in that regard can always be represented
in a court - and I am not speaking about
jurisdiction for the moment but in terms of
representation - that person can be represented in
a court.
So, Your Honours, if one were to approach it,

I suppose, from the most traditional lines, one
could say that a person could come to the court
saying, "I desire to carry out an operation in
respect of a person or to have carried out and I
seek a declaration." That may be done lawfully.
It cannot be done lawfully unless the court
declares it to be done lawfully, declares that it
may be.
Your Honours, that would, once would think,

give to the court a jurisdiction to make a
declaration in relation to that matter.

DAWSON J: It still sounds very much like a parens patriae

jurisdiction you exercise when you do not have a
parens patriae jurisdiction.

MR JACKSON:

Your Honour, that may be right.

Your Honour,

if one takes away the parens patriae altogether, I
suppose that is correct, but if one has a parens
patriae jurisdiction taken away altogether then the fact that there is no such jurisdiction and nothing
which statutorily satisfactorily replaces it - - -

DAWSON J: It means you have to invent one.

MR JACKSON:	One could describe it as that, I suppose. could put it rather·more gently as being that the	One
common law, as it did when creating the parens

patriae jurisdiction in the first place, expands to
fill - - -

DAWSON J:

The Commonwealth did not invent the parens

patriae jurisdiction.

MR JACKSON:

Your Honour, I am sorry.

Your Honour, it may

not have invented it, it certainly developed it.
My word was incorrect but, Your Honour, that is what the common law seems to have done over
hundreds of years and where there is a need for a
remedy the common law will supply it, particularly
in relation to infants and person otherwise under
disability; Wellesley v Wellesley, of course, Your
Honour. That is the rationale of Wellesley - - -

DAWSON J:

We are not troubled by that because there is a

parens patriae jurisdiction, wherever it resides,
but there is a parens patriae jurisdiction
throughout Australia.

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MR JACKSON:	Yes.	Your Honours, I was going to go then to

page 79. I had referred to passages in Lord Goff's
reasons for judgment earlier at that page and
His Lordship said, towards the bottom of the page: In my opinion, that guidance should be sought
in order to obtain an independent, objective
and authoritative view on the lawfulness of
the procedure in the particular circumstances
of the relevant case, after a hearing -

and so on. And then went on to say that that
approach was consistent with what Lord Templeman
had said in In re B.
Now, Your Honours, Lord Jauncey, at page 83,

agreed with the conclusions of Lord Brandon and

Lord Goff. And, Your Honours, it is not entirely
clear that Lord Goff was correct in saying that
what he was doing was entirely at odds with the
view of the majority on the question, at least so

far as concerns infants. Your Honours, that was
his perception of it.

TOOHEY J: But that passage on page 79, Mr Jackson, that you just took us to is couched in terms of, as a matter

of practice, guidance should be sought and, later
on, some such expressions. It is all couched
generally in terms of, "Well, it would be a good
idea".

MR JACKSON:

It is a bit more than that, with respect,

Your Honour, in the sense that what His Lordship
says - could I take Your Honour to letter Fon the
page? What he says is:
the approach adopted by the courts in the
United States and in Australia provides, in my
opinion, strong support for the view that, as
a matter of practice, the operation of
sterlisation should not be performed on an

adult person who lacks the capacity to consent
to it without first obtaining the opinion of
the court -

in proceedings
by seeking a declaration that the operation is
lawful.
Now, Your Honours, it is right to say, as

Your Honour put to me, that what he is saying is
that one should not do it, but the underlying
reason for saying that seems to be not just that it
is a good thing but that you should be careful to
make sure it is done, otherwise it may not be

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lawful, may not be, in our submission, would not
be.

DEANE J: But is it not really based on the presupposition

that the parent or the custodian, or possibly the
doctor, has authority in some circumstances, and
the declaratory proceedings that Lord Goff is
referring to is to get confirmation that these are
circumstances?

MR JACKSON:

Yes, Your Honour, that may well be right in one

sense, and may I say - - -

DEANE J: It is also apparent from Lord Goff's judgment or

speech that if there had been an available parens
patriae jurisdiction he would have been looking to
it as the primary solution.

MR JACKSON:

Yes, Your Honour.

I do not think I will take

the matter further. Your Honours, could I go from
that to the question whether the general position
was altered by the terms of the Family Law Act, and
could I go in that regard, Your Honours, to
section 63E - - -

DEANE J:

Mr Jackson, can I delay you for another moment,

and that is, I have not seen in any of these cases
an instance where the courts have ordered
sterilization over the opposition of parents. Is
there any case where that has been done?

MR JACKSON: Your Honour, I think the answer is no. There

is, however, of course, the decision which I think
is Re B - I have lost the names a little - where
the child who had Down's syndrome, an operation was
ordered to be performed over the objection of the
parents in that case. That was the case where the
baby was very young and the parents thought
the - - -

DEANE J: But that was to prolong the life.

MR JACKSON:

Yes.

Your Honours, I was going to go then to

section 63E. Your Honours will see that
section 63E, and I will come to its terms in a
moment, deals in subsections (1) and (2) with two
concepts.
In subsection (1) it deals with the concept of

guardianship for the purposes of the Act. In
subsection (2) it deals with the concept of

custody, again for the purposes of the Act.
Your Honours, I will come back to the terms of subsection (2) in a moment, but may I take
Your Honours to subsection (l)? Under subsection (1) Your Honours will see that:

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A person who is the guardian of the child
under this Act has responsibility for the
long-term welfare of the child and has, in
relation to the child, all the powers, rights
and duties that are, apart from this Act,
vested by law or custom in the guardian of a
child, other than -

two things -
(a) the right to have the daily care and
control of the child; and
(b) the right and responsibility to make
decisions concerning the daily care and
control of the child.
Your Honours, if I could pause at that point.

One sees that the expression which is used in the
opening part of section 63E(l) is:
responsibility for the long-term welfare of
the child -

and what is excluded from its operation are things
that are short-term, to put it shortly, that is,
the aspects of daily care and control, and those
are the things that are dealt with by
section 63E(2) and they are given to the person who
has custody if those persons be different.
Now, Your Honours, a question arises about the

meaning of the expressions used in section 63E(l).
The particular question which arises is whether it
embraces two concepts or essentially one and, if it
embraces two concepts, what the two concepts are.
One thing which is clear - - -

McHUGH J: But it might embrace three, in the sense that the

person who imposes a duty and a general duty and

for the second part of it imposes duties but also
confers rights.

MR JACKSON:

Yes, Your Honour, that is possible.

What I was

going to say was this, Your Honours, that one thing
which is clear from section 63E(l) is that a person
who is the guardian of a child has, in relation to
that child, the rights, powers and duties that,
under the general law, are given to the guardian of
the child other than the two things which are
excluded; that is, daily care and control. The
second aspect is the expression:
has responsibility for the long-term welfare
of the child -

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Now, Your Honours, a possible view of those words
of section 63E(l) is that which was taken by
Mr Justice McCall in this case and that is - I will
give Your Honours the references in just a moment -
to assume that under the general law a guardian
would not have had the power to consent to an
operation of the kind in question. But, in his
view, the guardian acquired power by reason of the
expression "responsibility for the long-term
welfare of the child" because the view that
His Honour took was that that added something to
the rights and powers and duties otherwise
conferred by the terms of section 63E(l).

DAWSON J: That does raise large questions of power - not in

this case, but you are going to address those questions which do not arise but incidentally here, eventually, I take it? ·

MR JACKSON: Well, Your Honour, I would hope to do so very

little, for a reason I will mention in a moment.
We may not be talking about the same thing but,
Your Honour, I would seek to try to keep the case
while dealing with the position in the Territory -
I know it is not possible to do that entirely, but
I do not especially want to infringe, except to the
extent which may be necessary, upon any rights,

that is the rights of any of the States. But could
I come -

DAWSON J: But it does raise a question of how far you can

vest what might be called elsewhere, human rights,
upon an individual, by reference to the concept of
guardianship.

MR JACKSON:

Yes.

DAWSON J: Large question.

MR JACKSON:

Your Honour, I do not doubt that, but - perhaps

I can come to that a little later, Your Honour.

MASON CJ:	You might think about that between now and 2.15.
MR JACKSON:	Your Honour, I am sorry, I have taken longer than I thought.

MASON CJ: Well, that is understandable.

MR JACKSON:	I expect to be about three-quarters of an hour.
MASON CJ:	I do not think you ought to feel that you are

under any pressure, Mr Jackson. So we will resume
at 2.15 pm.

AT 12.46 PM LUNCHEON ADJOURNMENT

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UPON RESUMING AT 2.17 PM:

MASON CJ:

Yes Mr Jackson.

MR JACKSON:

Thank you, Your Honour.

Your Honours, I have

arranged for there to be delivered to Your Honours'
tipstaves two documents; the first consists of the
copies of the article in the American Law Review,
to which I referred earlier. It was the article referred to in Mr Justice Rosellini's reason for
judgment in one of the cases to which I referred
earlier; the second is that Your Honour
Justice Deane asked me before lunch, in relation to
cases in which the operation had been compelled, in
effect, and I gave a reference to a decision in

relation to a child with Down's syndrome. My
learned friend, Mr Pauling, has kindly provided a
copy of that. That also has been delivered.
Your Honours, I should also say that, of course, the opposite side of the coin in relation
to a child with a similar condition, namely Down's
syndrome, was the case decided by Justice Heilbron,
where what was desired by the parents was that the

operation be carried out. What Her Ladyship
decided was that it should not be.
May I say two other things, Your Honours,

before I come back to section 63E, and they are
these: the first is that I should, when dealing
with the question of the guardian's power under the
general law, have referred to the Australian cases
in paragraph 3 of our outline of submissions. I do
not intend to go to them now, Your Honours, but the

issue is also there discussed. Your Honours, the

second feature I should mention before I get to
section 63E(l), is that I should first mention
section 63F(l), because it is the provision which
identifies the persons who are to be the guardians
of a child and they are, in the ordinary course of
events, the parents of the child and the parents
have the joint custody. That is what one might
expect to be the ordinary course of events, but
Your Honours will see, and I will come back to this
when dealing with jurisdiction, that the provision
is prefaced by the words "subject to any order of a
court for the time being in force".
Your Honours, having said that, may I then go

back to section 63E. The view taken by
Mr Justice McCall in the Family Court in this case

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was, as I mentioned before, that the opening words
or perhaps the first part of, I should say,
section 63E(l) added something to the concluding words, that is, that in addition to the guardian having pursuant to the Act:
all the powers, rights and duties that
are ..... vested by law or custom -

apart from the Act in the guardian the words -
responsibility for the long-term welfare of
the child -

added something, and that what they added was the
power to consent, thus altering the common law
position if Your Honours were to take the view that
it was, as I was submitting before lunch.
Your Honours, there are submissions we would wish
to put in relation to that proposition.
Your Honours, first, let it be assumed that it

is correct to say that the relevant part of
section 63E(l) does add something to what follows,
but the question is then what does it add and,
Your Honours, we would submit that it is making
words expressed in very general terms do a lot of
work to override a rule of the common law having a
seriousness of the nature of the subject-matter presently in question to take the view that the
words:
responsibility for the long-term welfare of
the child -

would have the result that the parent could consent
to a sterilization operation - - -

McHUGH J:

Does it do anything more than impose a duty and

therefore, because it imposes a duty, by necessary
implication that would carry with it the right to

do certain things but only those that are necessary
to fulfill the duty?

MR JACKSON:

Your Honour, that is one way of putting the content of the responsibility. It performs a

number of functions.

One is that it identifies as

between subsection (1) and subsection (2) who is

responsible in the long-term for the child. Is it
the guardian or is it the person having custody, if
they be separate, it is the guardian who has that.

But it does not say very much about the content of

the responsibility, that is the first thing it is

does.

The second thing is that in so far as one has

to identify a person who, against the world, has

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responsibility for the long-term welfare of the
child, the person is the person who is the

guardian. And, Your Honours, the difficulty
remains of identifying what is meant by - what is

the content of that responsibility. Now,
Your Honours, the responsibility, in our
submission, is that that person has to do, in
respect of the child, the things that a parent in
the ordinary course of events would have to do.
Your Honours, it does not go beyond that and

should not, we would submit, be read as going
beyond that. That is on the assumption, of course,
that - - -

DEANE J: Is there anything that tells you now what they

mean by "guardian"? On what we have got the
definition was simply omitted in 1987.

McHUGH J: But in Part VII, is there not one at the

beginning of it? No.

MR JACKSON:

Your Honour, I think not.

McHUGH J: Yes, there is. It does not mean much. There is

a definition in section 60.

DEANE J: That is probably the definition which was in

section 4(1) before. That answers my question,
Mr Jackson.

MR JACKSON: It is reverential but not illuminated, with

respect. So one really has to gain an
understanding of the nature of the concept from the
various provisions of the Act which touch upon it
and, Your Honours, I will be coming to the
provisions which touch upon what is contemplated by
the various concepts when I deal with the
provisions giving, as we would submit, jurisdiction
to the Family Court under that Act.

Your Honours, what I was going to say was the

other possible view of section 63E(l) is a slightly
more limiting one - or potentially slightly more
limiting - and it is the words "responsibility for
the long-term welfare of the child" are really
there to emphasize and to provide the lead in to
the temporal distinction - if I could put it that
way - between the operation of the concepts of
guardianship and custody in the two provisions.
I said before lunch I would give the references to the pages at which Mr Justice McCall
dealt with this question. Your Honours will see them principally at pages 88 to 90 in the record
and his conclusion appears at page 101.

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Your Honours, could I deal then with the question of jurisdiction of the Family Court.

What
I propose to do, Your Honours, was to go to the -

or perhaps I should say one thing first. One
recognizes immediately the Act does not say
"Jurisdiction is conferred on the Family Court in
relation to this, that, this, this and this''.
Perhaps it might have, but it does not. But what

one has to do is to see what is the effect of the
various provisions of the Act and what I will be
seeking to submit to Your Honours is that when one
does that, what one sees is that the provisions of
the Act in some respects expressly, and others
impliedly, contemplate that the provisions of the
Act confer jurisdiction on the Family Court in
relevant matters.

BRENNAN J:

Does one need to identify, first, what it is

that it was said to have jurisdiction to do?

MR JACKSON:

Yes, Your Honour.

No doubt what it has

jurisdiction to do is to make an order by which it
does one of a number of things. Could I say that
precisely what it does may depend a bit on the
context in which it is otherwise operating and by
that I mean if one were to look at the particular
provisions of the other laws which were applicable
it may be appropriate for the order to be one which
was first authorizing a parent to give consent, the
assumption underlying that being that the parent
would not otherwise have the power to do so.
Another order that might be made would be an order
by which the court's order itself conveyed the
authority. And, Your Honours, a third possibility
would be that the court's order would be one which
authorized some person other than the parent to do it. And those possibilities or possibilities akin
to them are ones that Your Honours will see
reflected, I think, in the various possibilities in
question 2 that was being considered by the Family
Court; that is at page 11.

Your Honours, one can see that the type of

order that might be made in a case where the court
was minded - if I could put it broadly - to permit
the operation might be one that was capable of
varying considerably, depending on the

circumstances. I do not mean to put that in a
bland form but one could see, first of all, that a
court might, on the one hand, be entirely satisfied
that it was appropriate that the whole of the

proposed operations be carried out. The court, on
the other hand, might be satisfied, on the evidence
before it, that the whole of the operations
proposed should not be carried but there be some
modified form of it.

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A third possibility, of course, would be that

the court expressed a view that it might be
appropriate for the operations to be carried out
but not yet and that might have the result that the
proceedings were dismissed or that perhaps they
were adjourned pending some further evidence.
Your Honours, there are various possibilities.

TOOHEY J:

But when you put the matter that way, Mr Jackson,

are you talking about jurisdiction or are you
assuming jurisdiction and looking at the powers
that the court has to give effect to that
jurisdiction?

MR JACKSON:

Your Honour, I am sorry, I had got beyond

jurisdiction. I was seeking to answer His Honour
Justice Brennan when he asked me what type of order would the court make.

TOOHEY J: Because jurisdiction has to be found, presumably,

by reference to a matter arising under Part VII.

MR JACKSON:	Yes.
TOOHEY J:	And is any matter touching the welfare of a child

a matter arising under Part VII?

MR JACKSON:

We would submit so, Your Honour, yes.

One can

identify, of course, that there might be
applications which one might think bizarre that
would be brought to a court but that is -

TOOHEY J: Well, it is easy to understand that the court

might refuse to make any order in respect of some
trivial matter but that does not affect the
existence or otherwise of the jurisdiction.

MR JACKSON:

No. Your Honour, one might say, for example, would it not be silly if someone came to the court

seeking an order to stop their child playing the

wag? Well, it might not be so silly if the child

kept on doing it and it was not in the child's best

interest not to go to school.

And, Your Honours,

if one is talking about the jurisdiction of the
court, if I could just say one more thing, if one

goes to section 70C - and I am conscious in saying

this of the fact that it predicates that
proceedings of the nature referred to there will
come before the court in a particular way, but,

Your Honours, when one looks at the subject-matter

of, for example, section 70C(l)(a), an injunction
for the personal protection of the child would seem

to be really at the heart of the jurisdiction of

the court, and the Act - I am not speaking of the

power to enact it, but the Act as expressed treats

a remedy of that kind, a remedy which is a serious

one and one in which some urgency may be involved,

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but it treats it as being something that is clearly
within the jurisdiction of the court.

BRENNAN J:	Mr Jackson, my difficulty at the moment is to appreciate what is the jurisdiction intended or
capable of affecting. In whatever form it might be
expressed, what right, power, privilege, liability does it affect, and how does it affect it?
MR JACKSON:	Your Honour, could I start with the persons who

would be potentially subject to a liability, if I
could say so first, in the absence of such an
order.

BRENNAN J: Well, is it not necessary to identify what the

liability is?

MR JACKSON:

Yes, Your Honour.

Your Honour, I am sorry, I

thought I had in the sense earlier, in broad terms.
If a parent has no authority to procure or consent to the performance of an operation on a child, then
for the parent to do that would itself be an

assault. Now Your Honour, the degree of assault
might change; the characterization of it as a
matter of criminal law, its seriousness might vary
depending on the particular provision, but it would
be something which was unlawful and to carry with
it both prima facie criminal and civil
consequences.

BRENNAN J:

As an assault?

MR JACKSON:

Yes, Your Honour.

Your Honour, it may be

worse. It may, depending on the nature of the
operation, be of a more serious kind and perhaps I
could leave the degrees aside.
Now, having said that there is no right in

the parent to authorize it, one is then, in our
submission, faced with a situation that the person
who might authorize it is a person who is incapable

of authorizing it, ex hypothesi. Now, the affect
of the court's order is then an order which - and
it depends a little how it was framed, but it is
one which would authorize the person whose conduct
in engaging in the operation or procuring it, would

otherwise be unlawful, to be acting lawfully. I
think I have mixed up the sentence somewhere on the
way.

McHUGH J: But acting lawfully for what purpose? For

purposes of family law or federal law or for

thepurposes of State law because that is the
critical question, is it not?

MR JACKSON: Well, Your Honour, it would be, first, the

person would be acting lawfully for purposes of

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federal law. Your Honour, I say that, but what it
means would seem to be that the right which the
person was then exercising was a right which has
origin in the federal - if I could leave aside the
Territory position particularly, for the moment.
Your Honour, one would then, so far as that
person's rights were concerned, be dealing with a
situation where the conduct of the person would
otherwise have been unlawful under State law and,
because of the absence of consent, the authority
from the Family Court would provide that authority
and the conduct would not be -

McHUGH J: Well that is the jump I have some difficulty with

at the moment. Why do you say that what is given
under this Act then constitutes consent for the
purposes of State law?

MR JACKSON:

Your Honour, we are, I suspect, talking about

two different things - - -

McHUGH J: Well, just assume, for instance, under State law

something was prohibited unless it was done by the
consent of the person involved.

MR JACKSON:

Yes.

Why I have said it a couple of times in

the past, that what one would be seeking from the
Family Court would depend a little on the
circumstances, is that what one is seeking to do,
in the case Your Honour is positing, is to see who
can provide the consent necessary for a State law.
Now, Your Honours, what our submission - - -

DEANE J: But is not what you are looking for an order

giving authority? Now, if you look at 64(1) if you
treat welfare as covering this, the sort of
proceeding really is much the same as a proceeding
for custody. It gives you rights to do things in
relation to the child and rights that make lawful
what would otherwise be unlawful. So, as I say, if

you are right that this is a proceeding in relation to the welfare of the child, any conceptual difficulties in relation to an order of this kind
apply equally to an order for custody, an order for
guardianship or an order for access?

MR JACKSON:

I am indebted to Your Honour.

DAWSON J: Except that you have put these rights outside the

marriage relationship entirely?

DEANE J:

I did not understand you were talking about the

constitutional basis.

DAWSON J:

You have got to be clear whether you are or you

are not in this area. I thought you said putting
the Northern Territory on one side?

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MR JACKSON: Well, Your Honour, I was talking about that

with a view to excluding the jurisdiction which
might be attracted by section 4 of the Jurisdiction
of Courts (Cross-Vesting) Act. But, Your Honour, I
wondered if I might deal with the point Your Honour
raised this morning just a little later - - -

DAWSON J: But it is, to keep one's mind clear, necessary to

know whether we are talking about the section in
general or whether we are talking about it with an
extended application to the Northern Territory and

I am not sure how these things operate. Do you
look at it, first of all, in its operation in
relation to the States in order to interpret it, or
do you look at it in its operation extended to the
Northern _Territory in order to interpret it,
bearing in mind that its primary application,
presumably, is in relation to - generally anyway,
that includes the States.

MR JACKSON:

Your Honours, it is not as simple as that really because four States have referred powers.

DAWSON J: Yes, I am not pretending it is simple.

MR JACKSON:

What it tends to have, of course, is as one

sees, for example, in section 6 of the Trade
Practices Act. It has an alternative or

distributive operation. Now, each of them is
capable of affecting the way in which the Act is to
be construed and not just sometimes by adding words to particular provisions. Your Honour, I wonder if
I can come to the constitutional aspect of it.

McHUGH J: Perhaps this is on a constitutional aspect as

well, but supposing New South Wales law said, for
example, "Nobody shall be sterilized. Full stop. "
Would an order under this Act authorize the doing
of that which by the law of New South Wales was
unlawful?

MR JACKSON: Well, Your Honour, probably the answer is no.
BRENNAN J:	Mr Jackson, could I take you back to the

Territory. Let us assume that an order of the kind that you postulated is made in the case of the present child, and let us assume that the surgical
procedure is carried out in accordance with that
order and for some reason the doctor who performs the operation is charged with assault occasioning
grievous bodily harm. It is proved that the

operation was performed. What is the defence?

MR JACKSON: Well, Your Honour, if one leaves aside

particular Territory statutory provisions, the
defence would be that it was carried out with

authority. Now, Your Honour may say,. "Well, was

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the doctor a party to the proceedings?" Well, it may be appropriate to have the doctor as a party.

BRENNAN J:	No, the problem I may say is with authority but the element that is in issue is consent.
MR JACKSON:	Yes, Your Honour, I am sorry.
McHUGH J:	And you have got to show that the State law would

recognize that consent and that is the problem I
have at the moment.

MR JACKSON: Well, Your Honour, the State law, of course, is

in a position where -

McHUGH J:

The Territory law.

MR JACKSON:

I am sorry, Your Honour.

I do not why - in the

geography. But, if I could deal first of all with

the Territory law perhaps. The Territory law is in
a position where it would simply say, one would
expect, that the doctor has to have - when I say,
"it would simply say", what I mean by that is that
under the general law of the Territory, whether it
be statutory or common law, as it were, it would
require that there be consent to the carrying out
of the operation by or on behalf of the minor.
Now, there is no particular reason, we would submit
with respect, why the Territory would then be in a
position of disregarding the fact that the minor
was a person incapable of giving consent and that,
under the laws of the nation, the only person
capable of giving the consent was the person
appointed by the Family Court.

BRENNAN J: Well, then, that is the answer to the question

of the jurisdiction. It is a jurisdiction to
appoint a person who shall have power to give a
consent for the purposes of the Criminal Code.

MR JACKSON:

Or another law, yes, Your Honour.

BRENNAN J:	I understand that.
MR JACKSON:	Your Honour, I am sorry, I was not

seeking - - -

BRENNAN J: It just seems to me that that is precisely what

has not been said thus far because that is exactly
the nature of the jurisdiction that was dealt with
in some of those American cases. It is the way in which the parens patriae jurisdiction is exercised but it is said that, here, we do not have that

jurisdiction in the Family Court; we have only
this welfare jurisdiction. What you are
postulating is that there should be a person

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appointed with the power to give the consent for
the purposes of that Act.

MR JACKSON:	Yes.
BRENNAN J:	I do not quite understand it. Whether there is jurisdiction to do this is the next point, no
doubt.
MR JACKSON:	Your Honour, I am sorry, I had not made myself

clear and perhaps I had not made myself clear
because I was seeking to say there are several
possibilities and it depends on what is being done
and it may be that in particular cases the order
would be in a different form but, generally
speaking, what Your Honour has put to me is right.
Your Honours, I was going to deal with

jurisdiction and may I go back to, first of all,
section 63(1) - - -

DEANE J:

Of course, if you did not want to go so far as to

say jurisdiction to have a person appointed, it
would be a lesser step to say, "Jurisdiction to
authorize the parent or other guardian."

MR JACKSON:

Yes, Your Honour, there are several

possibilities.

DEANE J:

Which would always have been in the traditional

inherent jurisdiction.

MR JACKSON:

Yes.

Your Honour, there are several

possibilities.

DEANE J: In relation to property, at least, anyway.

MR JACKSON:

It may be one thing to recognize the fact that

the rights of parents are different from those of
the child but it may be that the right order,

having considered that, is then to give some
further authority to the parent.

TOOHEY J:

Mr Jackson, in giving the answer to

Justice Brennan that you did, were you postulating
a jurisdiction that exists independently of the
welfare of the child or that somehow derives from a jurisdiction to make orders relating to the welfare of the child?

MR JACKSON:

Your Honour, I was intending to say that the court would then be exercising a jurisdiction in

relation to the welfare of a child but what I meant

by that was one the manner of exercise of which

would be by a reference to the best interests of

the child.

I do not know if I have answered

Your Honour's question.

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TOOHEY J: Well, yes, I understand that. I rather thought

you were putting it as if the power to make an
order of the sort that you suggested in answer to
the question somehow was a head of jurisdiction of
itself?

MR JACKSON:	No.
TOOHEY J:	But it must ultimately derive, must it not, from

the reference to welfare of the child in the Act?

MR JACKSON:

Yes, Your Honour.

Your Honours, what I would

seek to do in relation to the jurisdiction
provisions of the Act is to go to them, in effect -
there is a number of them - in the order in which
they appear, simply indicating, as I was submitting
earlier, that from the totality of them it is
apparent that there is jurisdiction.
Your Honours, could I go first to

section 63(1) and Your Honours will see that it
confers jurisdiction:
on the Family Court and, subject to
subsection (7), the Supreme Court of the
Northern Territory .... in relation to matters arising under this Part (including proceedings
under sections 70C and 70D).
Your Honours, the content of 70C and 70D

provides some clue as to the nature of matters
which might arise under the part but I shall come

to it later. From there one goes to section 63(7)
which is the provision limiting the circumstances
in which the court of the Territory has
jurisdiction, otherwise conferred by
subsection (1).
Your Honours will see then, in section 63C(l)

the fact that the:

Proceedings under this Act in relation to a
child may be instituted by:
(a) either or both of the parents;
(b) the child; or
(c) any other person who has an interest in
the welfare of the child.

Your Honours, one then sees that in section 63F
Your Honours, I should first have said, in
section 63E(3), Your Honours will see that the
court exercising jurisdiction under the Act is
specifically empowered to vary:

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The operation of subsection (1) or (2) -

Your Honours will see that it be correct that
section 63E(l) declares what are the rights of the
guardian, and if the effect of the declaration is
not to include the right to obtain the consent, to
put it shortly, then there would seem no especial
reason why a variation of the nature contemplated
by section 63E(3) would not encompass the matters which have been the subject of the argument. And
section 63E(3), although it does not, of course,
use the word ''jurisdiction" as conferred is clearly
enough a provision which, in its operation does
confer jurisdiction.
Now, Your Honours, section 63F(l) is the provision to which I have referred earlier, but in
its opening words it contemplates that an order of
the court may be made under the Act and which has
the effect of alteration of the operation of the
Act in relation to guardianship and custody.
Your Honours, section 63F(3) is a limitation

on the power to make orders, but the manner in which the limitation is expressed contemplates
clearly that the power, subject to the limitation, exists. Your Honours, so too does section 63F(4).
Could I go then, Your Honours, to - - -

DAWSON J: If section 63F(3) only relates to -

custody, guardianship of, or access to, a
child -

does it mean that otherwise welfare, which is added
to those words, extends beyond 18, for the life of
the child?

MR JACKSON:

Your Honour, it is, I suppose, a possibility.

DAWSON J: But a very distinct possibility for someone who

is incompetent.

MR JACKSON:

Yes.

Your Honour, there are some provisions of

the Act which do contemplate the extension of the
operation of the Act in relation to periods after a
child attains the age of majority, and one - I
cannot remember whether it is in the current form
of the Act - was dealt with by the Court in
Dougherty v Dougherty, I think.
Your Honour, it may well be that the expression "in relation to" in section 63F(2) is
such that it would mean that an order dealing with
welfare was an order which would, for the purposes
of that provision, be an order in relation to
custody, guardianship or access, so that the power

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would not extend beyond that. Your Honour, I do
not know that I can take that further at the
moment.
But Your Honours, it is apparent, if one goes

then to section 64(1) that section 64(1), to which
court has been referred, contemplates that there
will be proceedings in relation to, amongst other

things, welfare of a child. Now it speaks of those
proceedings and it says:

In proceedings in relation to -

them -
the court shall consider any wishes expressed
by the child in relation to the custody or
guardianship of, or access to, the child, or
in relation to any other matter relevant to
the proceedings, and shall give those wishes
such weight -

and the proceedings that are contemplated are proceedings in relation to the, amongst other things, the welfare of a child, ex hypostesi, in
the court.
Could I refer Your Honours also to paragraphs

(ba) and (bb), imposing duties on the court and
then, Your Honours, in paragraph (c) the court,
which is the court exercising jurisdiction under
the Act, of course:
may make such order in respect of those
matters as it considers proper, -

and Your Honours, the form of drafting is not
perhaps the first one one would choose, but it
certainly seems to say that the court may make such
order in respect of those matters - the matters
being the matters, the subject of the proceedings.

Your Honours, from there one goes to

section 64(1A) and, Your Honours, without reading
out the provision, it deals with procedural
matters, but Your Honours will see that nothing in
the section permits the court to require a child to
express his or her wishes in relation to his or her
custody or guardianship, in relation to access to
him or her or in relation to any other matter
relevant to the proceedings. Again Your Honours,
one dealing with circumstances where there are
proceedings of the nature referred to in the
opening words of section 64(1); so too,
Your Honours, section 64(1AA) and Your Honours, if
one goes to section 64 (1B) the limitation on the
power of the court to make an order seems clearly,

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until the events referred to there have occurred,
to contemplate that the court does have power to
make such an order, subject of course to that or
any other relevant limitation.

Now Your Honours, if one goes to

section 64(2), section 64(2) is a power to make
particular orders and it is expressed to be a power
without limitation - which does not limit the

generality of subsection (1). Now Your Honours,
undoubtedly provisions such as those in the opening
words of section 64(2) have varying meanings and
varying contexts, but we would submit it would be
difficult to have section 64(2) meaning other than
that the orders of the types specifically referred
to in it are orders which simply form part of a
larger class, namely those referred to in the
opening words of section 64(1).

Your Honours, could I go then to

section 64(5). It speaks of circumstances where a
court makes an order under this Part with respect
to a child and it allows the court to make certain
other ancillary orders if it considers the welfare

of the child so requires. Your Honours, we would
make submissions, in relation to section 64(5),
similar to those which we made in respect of 64(2).

Could I also refer Your Honours to

section 64(7) and section 64(9). Section 64(9)
contemplates an order with respect to the custody
of a child. Your Honours, from there one goes to
section 70, and section 70(1) plainly enough
contemplates that an order may be made under that:
Part granting to a person the custody of a
child -

and so too does section 70(2), and section 70(3)

deals with access. Your Honours, I have omitted,

in passing over the sections, to take Your Honours
to section 65 which I said earlier that I would
mention and section 65 says that:
Where, in proceedings under this Act -

in which the welfare of a child is relevant it
appears to the court that the child ought to be:
separately represented ..... the court may -

of its own motion, et cetera, order that the child
be -
separately represented -

and may make other consequential orders.

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Your Honours, I wanted to go, finally in this

regard, to section 70C(l) and the concluding
provisions of it. Now, Your Honours, it is
apparent that section 70C contemplates that
proceedings may be instituted:
in a court having jurisdiction under this Part
for an injunction in relation to a child.

There is then a specific power given by the opening words of section 70C(l) for:
the court may make such order or grant such
injunction as it considers appropriate for the
welfare of the child.

Now, the orders which may be made include those
referred to in section 70C(l)(a), that is:
an injunction for the personal protection of
the child.

Now, that no doubt refers at least to protection of
the body of the child. It may, Your Honours, go
beyond that and refer to the protection of the
interests of the child in terms of its property and

financial interest. Your Honours, if one goes to
section 70C(l)(b) that refers to:
an injunction for the personal protection of a
person who is entitled to the custody or
guardianship of, or to access to, the child.

Now, Your Honours, the injunction that is
contemplated by that is, no doubt, principally, an
injunction relating to the protection of the body,
as it were, from physical interference of a person
having:
custody or guardianship -

or entitlement -
to access -

there would seem no special reason why the words of
it would not go a stage further and contemplate
protection from threats of physical assault, as
distinct from physical assault, conscience in
saying that, that threats of assaults themselves
may be assaults.
Your Honours, we would also submit that there

is not any particular reason why, in an appropriate
case, an injunction of the kind specifically
contemplated by section 70C(l)(b) would not be an
injunction for the personal protectioh of a person

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if the effect of the injunction were to remove from
that person a liability to punishment or a
liability to suit for something that otherwise
would be unlawful. However, Your Honours, one
recognizes that perhaps - - -

BRENNAN J:	An injunction to sterilize the operation of the criminal law.
MR JACKSON:	Your Honour, I would not, with respect, put it

that way but it would - - -

BRENNAN J:

Am I seeing the problem

it is not the one you

are addressing?

MR JACKSON:

No, Your Honour, what I am saying would be it

would not sterilize the operation of the criminal

law. What it would be, Your Honour, would be that
it would prevent a person who otherwise would be
liable under the criminal law from being liable
because that person would, by the order of the
court, satisfy the requirements of the law.

McHUGH J: That really depends upon whether State law would

recognize the order for whatever the relevant

purpose is. Now, in the stated case, question 2(a)
seems to deal with much of what you have been
putting but 2(b), in effect, asks the question
whether it would lawfully authorize the carrying
out of such procedures. Now, that seems to me to be quite a different question from question 2(a).
The court may have jurisdiction to authorize the carrying out of such procedure. It is another question as to whether the effect of its order is
to lawfully authoriz~ the carrying out; that is,
lawfully for the purposes of State or Territory
law.

MR JACKSON:

Yes, well, Your Honour, if I could take first

one provision of the Family Law Act. Under the
power specifically conferred by section 63E(3) -

the power to vary the incidents of guardianship -
then we would submit that the Family Court would
have power to say that in the particular case the
powers of the guardians were such as to enable them
to lawfully authorize the carrying out of the procedure subject, of course, to the question
whether the law, pursuant to which the operation
might otherwise be done, was a law that itself
permitted the consent to be given by someone who

was a guardian. Now, Your Honour, it may be a
difficult question.

McHUGH J:

I know and that raises the question.

You could

get, by analogy with the Airlines of New South
Wales case, the situation where you have got

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permission under Federal law but not under State

law. So you have a stand-off.

MR JACKSON: Well, you could have a stand-off, or in some

cases section 109 would operate.

McHUGH J: Well, I thought you were not prepared to go so

far as to rely on a 109 and, in effect, say that
the order would authorize what State law might
prohibit.

MR JACKSON: Well, Your Honour, speaking about some cases -

Your Honour was asking me if there was a

prohibition would it do it. The answer is probably

no. But if one comes to a different situation, and
it is possible there could be circumstances where
the State law was framed in such a way that it was
to some extent inconsistent with the -

McHUGH J:	I mean, you have it in the Rola case where the federal award says women can lift weights. You
have a State factory law which says they cannot
lift weights - held that the federal award overrides the State award.

MR JACKSON: But, Your Honour, if I could seek to answer

Your Honour on just one more thing: the question
as framed does have a difficulty or two in the
sense that it is difficult to answer that question
in the abstract.

DEANE J:

What about then if you go to the law of the ACT

where you do not have the State problems, but you
find an express provision in a 1991 Act that this
procedure will not be carried out without the
approval of a specified tribunal?

MR JACKSON:

Your Honour, in those circumstances - could I

say this first, Your Honour. It then gives rise to
the question, of course, first whether the Family
Court has jurisdiction to make an order which says

back to that in a moment. If it has, then that that the child may be sterilized, and I will come
order would seem to be effective according to its

terms. Now, Your Honour, we would submit, I think,
that under the terms of the Family Law Act the
Family Court in the end would have power to make
such an order. It would have power to make such an
order and the order would be effective according to
its terms. Now, it may be contrary, I think, to my
answer to Your Honour Justice McHugh a little
earlier, but it would be very much a question
whether the Family Court would proceed to make an
order, of course, in circumstances where the
Territory law prohibited it.

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Your Honours, there are difficulties in this,

but the questions do not really arise so far as the
Northern Territory is concerned, and that is perhaps why it is - - -

DEANE J:

My question was an unfair one, Mr Jackson, in that

the ACT law only applies to people 18 years of age
and over, but it does seem that we need to go very
carefully in terms of drawing a distinction between
children or possibly as here, children of a
marriage, and older people.

MR JACKSON:

Your Honour, I adopt that, with respect.

Your Honours, that really concludes what I wanted
to say about jurisdiction as a matter of
construction - - -

DAWSON J: Just before you leave that, section 70C(l) must

be subject to limits which are not expressed in the
section, must it not?

MR JACKSON: Well, Your Honour, to some extent perhaps. It

depends what they are.

DAWSON J:

I mean, the Family Court can make any order it

wishes for the welfare of a child. That would
extend to enjoining prosecutions for the commission
of crimes, nullifying contracts. In fact the law
relating to the child would be the law which
emerges under section 70C(l). That cannot have
been intended. That is the trouble with this Act,
it casts sections so wide that it just throws on
the lap of the court the task of making them
workable.

MR JACKSON: Well, Your Honour, as is apparent from the

limitations that were -

DAWSON J:

I am not blaming you, Mr Jackson.

MR JACKSON:

No, Your Honour.

As is apparent from the

limitations to the extent to which they exist that
the court imposed in relation to section 10 of the
Act in the Demack and Lambert cases, Your Honour,
it is apparent, of course, that the Act operates,
does not operate - to use the expression once
more - entirely in a vacuum. But, Your Honour, one
would think in relation to section 70, that what it
is really doing is looking at the core of the

relationships and perhaps to the fringe a bit. One
really should not interpret the section, with
respect, by looking at things which are bizarre;
they are always possibilities, but one would not
expect a court to exercise its discretion in that
way.

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DAWSON J:

No, one looks at it from the terms of power and one has to do that.

MR JACKSON:

Of course.

Your Honour, one is looking at it

as a matter of interpretation, with respect, at the
question Your Honour put to me.

DAWSON J:

Power is not irrelevant to the question of

interpretation.

MR JACKSON:

Indeed, Your Honour, and may I come to that in

just a moment. But, in dealing with the question
of interpretation first, if I may, that question,
Your Honour, is one if one looked at section 70C(l)
bereft of any preconception as to its operation,
one would say that it is dealing with the welfare

of the child. Now, Your Honours, the welfare of
children is something that courts have dealt with
for a long time and one would, if one were looking
at an injunction for the personal protection of a
child, there may be a debate about where the edge
of it is but one is principally talking about the

personal welfare of the child; a little more
perhaps but principally that.

DAWSON J:

But the way you were putting your argument is not

to talk of the welfare of the child - and this is a
similar problem - but the welfare of incompetents.
And it is for that reason that it is taken outside
the area of parental duties and responsibilities
and that is the reason you say that the court
acquires its jurisdiction.

MR JACKSON:

No, Your Honour, I did not, with respect, think

I had said that.

DAWSON J:	I thought it was the thrust of the argument.
MR JACKSON:	No, Your Honour, what I said was that one was

dealing with the position of children. Children were, of course, one of a species of persons who

were judged by the law not to be competent. In the
particular case, of course, the factual background
is that the child is one who is incompetent as a
matter of law because of age and incompetent as a
matter of fact because of her mental condition.
Now, Your Honours, of course the issue is one which is, one would hope, unlikely as a practical
matter to arise, except in circumstances where the
child in relation to whom the operation is to be
performed is one who is incompetent in the factual
sense. But the reason why the court in the
particular case is dealing with the matter is
because the person is a child.

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DAWSON J:	I do not understand that.	I thought the argument

was that the thing that marks out a child normally
from other incompetents is that one can look to the
parents to care for its welfare but in this
instance where you are dealing with something as
important as sterilization you cannot look to the
parents and therefore the child is in no different
position from other incompetents; one can only
look to the court.

MR JACKSON: No, Your Honour. Could I use an example I gave

earlier and that is of a parent who wanted to cut
off the foot of a perfectly intelligent child.
Now, Your Honour, that, in our submission, is
something in relation to which the parent would
have no power by virtue of parenthood or the
guardianship accruing from that and the reason
would not be the mental state of the child, it
would simply be that the operation was one of such
a nature that it could not be for any possible
benefit of the child and was one which the parents
simply could not authorize.

GAUDRON J: That does raise a number of possibilities in

terms of your argument, one being that there really
is latent power of a guardian to consent to an
operation in the circumstances we are here
concerned with but it is conditioned on its consent
being sanctioned or it may be that it is
conditioned on somebody determining that in the
particular circumstances it is in the child's
interest and that the general right of guardianship
carries with it the power to consent to something
in the best interests.

MR JACKSON:

Your Honour, the notion of guardianship no

doubt carries with it the ability to consent to the
carrying out of operations which are necessary in
the sense that they are ones necessary for, for
example, the removal of a diseased organ.
Your Honour, I do not suggest that there is an

exact line one can draw but what we have submitted
earlier is that that power to consent simply does
not exist, first of all, in cases where the nature
of the operation is one of the nature of
sterilization. It may also be that the power does
not exist in any case where the purpose of the
operation is not itself to remove, for example, the
diseased organ but to achieve some other aim.
Your Honours, one does not need, for present

purposes, really, to go beyond the particular class
of operation which has a unique aspect to it. All
I am suggesting is there may be other cases which
would attract a similar result but -

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GAUDRON J:

But does not this debate only arise because in

very special and limited circumstances it may be in
the best interests that an operation of this nature
be performed?

MR JACKSON: Well, it arises, really, Your Honour,

because - - -

GAUDRON J:

It certainly would not arise if it could never

be in the child's interests?

MR JACKSON:	I am sorry, Your Honour.
GAUDRON J:	The question would not arise if it could never

be in the child's interests?

MR JACKSON:

One would hope not, Your Honour, but the

history of attempts to have operations of this kind
would not lead one to have great confidence in that
view prevailing in all circumstances and one has
only to go to, perhaps, the decision of intentioned parents can form a view which is not in
the best interests of the child.

DAWSON J:

Can I just - one more question and then I will

leave it alone, Mr Jackson. What distinction in
this area of debate do you draw between an infant
incompetent and an adult incompetent?

MR JACKSON:

Your Honour, the distinction in a sense is this: so far as the adult incompetent is

concerned, there is no frame of reference, really,
which takes one back to the same kind of guardian

that a child has. If one looks at the history of

families - family law, in effect, one sees that the parents of children have, in the ordinary course of events been their guardians unless guardianship has been displaced by some order of a court; or,

unless they fall within the care and protection

provisions where the State takes guardianship of

them. One can also see in respect of persons who

are infants that by virtue of infancy they have a
lack of capacity.

Your Honours, the context in which the issue

arises is one where the first place of reference
one goes to in respect of infants is to the
parents. Perhaps they are not there but that is
the first place one goes. In the case of persons
who are adults, that relationship has come to an
end by their reaching whatever happens to be the age of majority at the time and one looks to see
then who is, in effect, appointed by the laws of
the polity to look after the affairs of that person
and it may very well be, Your Honour, that in many
jurisdictions the person who would have that is,

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for example, an officer of the State, having a
statutory official, a public trustee, a public
curator. It may be someone appointed in the
particular case; it may be a committee, as it was,
in older days.

DAWSON J:

Of course it may .... infant too.

MR JACKSON: Well, it may be, Your Honour, but one starts

off with - one calls them infants, because they are
in a state of infancy and the state of infancy - I
do not simply want to go in a circular fashion,
Your Honour - has, as its characteristic, that they
have to be looked after by someone because of that.
Now, Your Honours, infancy is a state that comes
about because of its corollary, and that is that
its parent - or childhood comes about because of
its corollary, parenthood, and the persons who,
traditionally, are the ones responsible for them in
the absence of anything happening are the persons
who are their parents, who are, Your Honours, even
today, frequently married, and perhaps that might
take me to the next issue with which I wish to deal
and that is the question the Your Honour
Justice Dawson raised - - -

BRENNAN J:

Mr Jackson, just before you get to that, could I

just ask you one further question on jurisdiction.
Is the jurisdiction conferred on the Family Court
by the sections to which you have taken us?

MR JACKSON:

Yes.

BRENNAN J: Exclusive of the jurisdiction of State courts in

States?

MR JACKSON: Well, Your Honour, so far as the courts - I

understand that. The provision which is - would
Your Honour just excuse me for a moment. Well,
Your Honour, all one can say is that section 63(A)

otherwise than under the Part, and that has to be appears to prohibit the institution of proceedings
read, of course, - - -

BRENNAN J:	If that be right and if the jurisdiction is of the kind which you explained earlier in your answer
to me, this Act effectively deprives the States of
power to control sterilization operations on
minors?

MR JACKSON: Well, Your Honour, if the jurisdiction is

treated as exclusive, then it would have the result
that it was the Family Court exercising
jurisdiction under these provisions, which was the
body which would authorize the carrying out of

them. Now it may be, Your Honour, that one does
not need to - it does not follow from that that all

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State laws dealing with the topic would not be
valid.

BRENNAN J: Well, all State laws, unless they are inhibitive

in character and are incapable of relief by the
making of any order.

MR JACKSON:

I am not entirely sure what that means,

Your Honour, with respect.

BRENNAN J: In other words, if the State law required, for

example, a consent to the operation, this law would
provide the exclusive means by which that consent
could be obtained?

MR JACKSON:

Your Honour, one would need also to look at, of

course, the provisions, for example, dealing with
jurisdiction in relation to the particular States.
Now, Your Honour, the Act deals distributively with
those and if I could go first to section 60E, it
says:
this Part extends to -

the four States which have referred power and then,
Your Honours, 60E(3) deals with the Territories and
then 60F gives the Act a more limited operation if

there is any constitutional problem. So it is a
question which might arise under section 63A of the
nature of the proceedings which might be instituted
under the Part.
Now, Your Honour, if it be that the

proceedings that might be instituted under the Part
were proceedings which simply sought the consent of
the Family Court, to put it shortly, in lieu of as
a consent where no one else had authority to
consent, in other words in the case of a child,
then our submission would be that it would seem to
follow from that that proceedings for that had to

be instituted under the Part.
Your Honours, it is possible I suppose that
one could go further than that in relation to other
areas of jurisdiction but, Your Honours, I must say
I do not want to avoid that especially; one is
dealing of course with the position in the
Territory.

TOOHEY J:

Mr Jackson, on that aspect of the matter, to what

extent does section 68, about which the
Solicitor-General told us something yesterday, operator as a brake on the exercise of jurisdiction in the sort of case we are concerned with here?

MR JACKSON:

Your Honour, that is the provision which, as I

think the former section 10 was the subject of Reg

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v Demack and Reg v Lambert, in each case ex parte

Plummer. Now, those provisions would operate
according to their terms as a limitation upon the ambit of the power to make orders because it is a

prohibition upon the making of orders. And if a
child is in the custody of, under the
guardianship, et cetera, under a child welfare law
that being one referred to in one of the schedules,
schedule 4, I think, then the court is not to make
an order in relation to the child.

TOOHEY J: For a child to be in custody or under the

guardianship or otherwise as provided in that
subsection, does an order have to be made or is it
enough that there is a law which says that a
particular parent, for instance, or parents have
custody or guardianship.

MR JACKSON:	Your Honour, there are a number of enactments involved and they are - they are not capable of an
easy classification.
TOOHEY J:	I did not want you to take us through them but I

thought there may be a simple answer.

MR JACKSON:

Your Honour, if I could take, say, two

examples. One is the case of a law under which,
say, a State children's court orders that a child
be under the care and protection of the director of
children's services, or whatever the title might
be. That would seem to be one type of law

contemplated by that. The child, for example,
because of its behaviour, is made the subject of
that order.
Another class of case seems to be, for

example, adoption orders and, Your Honours, they
seem to be orders, judging by the titles of the
Act, that would seem to be ones that would be made
under child welfare laws.

Your Honours, if I could move from that to two

other things. The first concerns what Your Honour
Justice Dawson, I think, was asking me about
earlier today, and that concerns provisions such as
section 63E and I hope Your Honour will forgive me
if I am wrong, but I thought what Your Honour was
asking me, "What is the constitutional power in
relation to a provision such as section 63E,
bearing in mind that it does not in terms use the
expression 'a child of a marriage'?" Perhaps I am
wrong about that, but that is my understanding of
what Your Honour was asking. And Your Honour, I
think, suggesting on perhaps a broader plane, that
provisions of that kind needed in some way to be
read down so that they applied to children of
marriages, and that unless one could see the

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marriage relationship there was the possibility it
was outside power.

DAWSON J:

One could see the relationship of the child to the marriage.

I mean, the power is the power to

make law with respect to marriage, not the children
of marriages. This is all dealt with in the cases
one way or another.

MR JACKSON: Well, Your Honour, I was simply going to refer

to the decision, with respect, of the majority of
the Court on the point in V v V,
(1985) 156 CLR 228, where there,
Chief Justice Gibbs, Your Honour the present
Chief Justice and Justices Wilson, Brennan and
Deane said at pages 231 point 9 through to 232,
that the effect of the relevant paragraph was:
to give the Family Court jurisdiction in
proceedings brought by a stranger to a
marriage for access to a child of the marriage
and to make an order in favour of the stranger
in those proceedings. It was submitted that
such a law does not have the character of a
law with respect to marriage, even if one or
both of the parties to the marriage are
parties to the proceedings. Such a law, it is
said, is not sufficiently connected with

marriage; the fact that the law has some
operation with respect to access to a child of a marriage does not mean that it is a law with
respect to marriage.

Your Honours went on to say:
Recently, in In the Marriage of Cormick

it was accepted by six members of this Court
that the following principles were established
by the earlier cases.

Now, Your Honours, the principle it said there is
this:
"It is now well settled that 'marriage' in
s.5l(xxi) includes the relationship or
institution of marriage and, since the
protection and nurture of the children of the
marriage is at the very heart of the
relationship -
Your Honours, "protection and nurture of the
children" the expression used -
that the power to make laws with respect to
marriage enables the Parliament to define and enforce the rights of a party to the marriage with respect to the custody and ·guardianship

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of a child of the marriage. The rights and
duties of the parties to a marriage, with
respect to the children of the marriage, arise
directly out of the marriage relationship, and
a law defining, regulating or modifying the incidents of the marriage relationship is a
law with respect to marriage. This is so,
although the law defines the rights of the parties to the marriage to the custody and
guardianship of a child of the marriage, not
only as between themselves, or between them
and the child, but also as against other
persons."

Your Honours, there is no particular reason, in our
submission, why the power to make laws in that
regard with respect to marriage does not include
the power to enlarge the rights of guardianship.
Your Honours, a law declaring that the guardian does not have certain rights and that such rights
should only be acquired by order of a court, in our
submission, is in that sense a law with respect to

marriage. And in that regard, Your Honours, the
effect of section 63E(l), in our submission, is to
provide by an exercise of the marriage power a
declaration of the rights of the parties to the
marriage in relation to the children.

DAWSON J: But that must be an alternative argument of

yours. The first argument was that the common law
does not concede these rights to the guardians, and
the alternative argument: if it does, well, then
the Act is able to cut it down in some way.

MR JACKSON:

Your Honour, I am sorry, perhaps I did not put

it clearly. What I was seeking to say was that
under the general law the guardian did not have the

relevant power. So far as section 63E(l) is
concerned, what has happened is that the
Parliament, in the exercise of the marriage power,

relevantly, has declared that the guardian has the rights which formerly were the rights under common law - under the general law. So that is done so by
what is an exercise of the marriage power.
Your Honour, it is equally an exercise of the

marriage power for the Parliament to make a law
which declares that those rights shall not be
enlarged, in particular respect, unless there is an
order of the court which permits that to happen.

GAUDRON J:

Do you suggest that the power to enlarge the

bundle of rights attaching to guardianship is to be
found in 63E(3)?

MR JACKSON: There and elsewhere, Your Honour, yes; the

elsewhere being in the provisions of section 64 to

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which I referred earlier and the cognate
provisions.

BRENNAN J:

Mr Jackson, I should not think that you would embrace this proposition but perhaps you would like

to respond to it.

What do you say to the

proposition that the jurisdiction conferred by the

Family Law Act on the Family Court, under whatever

complex of provisions one cares to look at, is no

more than a jurisdiction to make orders with
respect to the welfare of children within the

framework of the existing criminal law?

MR JACKSON:

Your Honour, that would seem to take us back beyond the Engineers' case, with respect, because

it would mean that one defined the content of the

marriage power by reference to the existing State

laws and - that refers to the matter of power;

secondly, as a matter of construction, one sees the

provisions of what is now, I think, section -

Your Honours, I am sorry, I have just lost the provisions, the one Your Honour Justice Toohey was

mentioning to me earlier, the care and protection

provisions which seem to provide for express
exceptions for particular laws of States to
continue to apply, notwithstanding the terms of the

Family Law Act.

Your Honour, the express reference to those

would militate against the conclusion that the
Family Law Act was intended to operate within such
area as the State chose to leave it.

BRENNAN J: Well, now, is there any alternative

MR JACKSON: Child welfare laws, I should have said,

Your Honour, section 60.

BRENNAN J:

Yes.

Does your submission then stop anywhere

short of this, that the powers as presently
conferred by the Family Law Act are wide enough to

allow an order to be made which can override, if it
be thought to be for the welfare of the child, any
criminal law of a State?

MR JACKSON: Well, Your Honour, it would be difficult to

maintain that proposition in the light of Reg
v Lambert, because that seemed to recognize an

exception to the power. However, Your Honour, the
cases, if I could put it this way, do not suggest
that the Family Law Act operates an area without
other laws operating and it would be difficult,
with respect, to regard a law which said that a
child was not to be able to be prosecuted for
murder, as being a law with respect to marriage or
a law with respect to matrimonial causes. It would
be difficult, Your Honour, if I could adopt the

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approach that Your Honour Justice Dawson has
mentioned sometimes, that is perhaps one of the occasions when one says that is not a law about marriage or matrimonial causes; that is a law about

children and child welfare. So, Your Honours,
there is no doubt a line to be drawn. That is on
the wrong side of it.
Your Honours, the last matter with which I

wish to deal concerns the Jurisdiction of Courts
(Cross-Vesting) Act. If it be that the
Family Court does not have jurisdiction under the
provisions of the Family Law Act in the particular
case, then the result would seem to be that the
Supreme Court of the Northern Territory would have
the relevant jurisdiction under its general
constating statutes.
Now, Your Honours, under the provisions of the

Commonwealth, Jurisdiction of Courts (Cross-

Vesting) Act
1987, section
4(2) - - -

TOOHEY J: This is the - - -?

MR JACKSON:

The Commonwealth Act, Your Honour.

Jurisdiction of Courts (Cross-Vesting) Act 1987.
Do Your Honours have that Act.

MASON CJ: Yes.

MR JACKSON:

Your Honours, under that provision section 4(2)

says:
Where:
(a) the Supreme Court of a Territory has
jurisdiction with respect to a civil
matter, ..... and -

the Family Court -

and I am omitting words -
would not, apart from this section, have
jurisdiction with respect to that matter;
jurisdiction is conferred on -

to put it shortly, the Family Court -
with respect to that matter.

So that, Your Honours, with that amendable
simplicity, if it be that the Family Court does not
have jurisdiction under the Family Law Act in the

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particular case, then the Supreme Court of the
Northern Territory would, and the jurisdiction of
the Supreme Court of the Northern Territory is, by
that provision, and its cognate provision in the
Jurisdiction of Courts (Cross-Vesting) Act of the Northern Territory conferred on the Family Court.

DAWSON J:	I do not know about the Northern Territory, but as far as the States are concerned, that is a means
whereby the Family Court acquires a parens patriae idea, is it not?

MR JACKSON: It could acquire, yes, if it does not

already - - -

DAWSON J: If it does not have it otherwise.

MR JACKSON:	Yes.
BRENNAN J:	And the Supreme Court of the Northern Territory

has a parens patriae jurisdiction?

MR JACKSON:

Your Honour, yes.

The Supreme Court Act of the

Northern Territory, which is called the
Supreme Court Act confers on - section 14,
Your Honours, of the Supreme Court Act. It has, by
virtue of section 14(l)(b) the same original
jurisdiction, both civil and criminal, as the
Supreme Court of South Australia had in relation to
South Australia, immediately before 1 January 1901.
Your Honours, that - I cannot quite give
Your Honour the provision at the moment, but
subject to any pronouncements of Mr Justice Boothby
to the contrary, that would seem to have included

the parens patriae jurisdiction. I wonder if I
could give Your Honours a reference to the
particular section of that.

DAWSON J: It would have all the powers of the courts at

Westminster?

MR JACKSON: Well, one would expect so, Your Honour, yes.

DEANE J: Except it would be more accurate to say that the

Supreme Court of the Northern Territory had the remnants of a parens patriae jurisdiction and this
effectively brings it all together supplemented by
any additional powers of the Family Court.

MR JACKSON:

Yes.

Your Honour, I am only making a

submission about it in the alternative.
Your Honours, those, I think, are the submissions we wanted to make and I am conscious of the fact there are a couple of matters I said I would provide to Your Honours, if I might do that in
writing.

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MASON CJ:	Yes, thank you, Mr Jackson.	Mr James.

MR JAMES:

If it please the Court, might I hand up an

outline. I should indicate to Your Honours that
notwithstanding what I said yesterday, in view of
the matters that have been canvassed so far and the
detail in which they have been canvassed, bearing
in mind the role that my client performs, much
would not need to be said that I had apprehended
otherwise I might have to say and I would expect to
be very much shorter and merely speak to the
outline with some additions.

MASON CJ:	Yes.
DEANE J:	You are not the night-watchman.

MR JAMES:

Thank you, Your Honour. hand up to Your Honours, in addition to the matters

Your Honours, might we

referred to in the outline, firstly copies of some
extracts taken from Spencers, The Equitable
Jurisdiction of the Court of Chancery, volume 1, in
relation to the parens patriae power exercised by
the Court of Chancery and particularly those
portions to be found at pages 614 to 615 which, in
addition to summarizing some of the matters
referred to in Re Eve, also set out a convenient
citation for the various cases there referred to.

MASON CJ:	Thank you.
MR JAMES:	Your Honours, questions as to the ambit of the welfare or parens patriae power have come before
this Court previously, and in particular in
Goldsmith v Sands, (1907) 4 CLR 1648, those questions were examined by this Court. Might I hand to Your Honours copies of that decision.

MASON CJ: Yes.

MR JAMES:

And while I do so, might I hand to Your Honours

copies of the decision cited in Goldsmith v Sands
to which we particularly refer, which is a decision
of the Court of Appeal in Reg v Gyngall, (1893)
2 QB 232.

MASON CJ: Yes.

MR JAMES:

Might I take Your Honours to page 1653 of

Goldsmith v Sands. There Chief Justice Griffith is
dealing with the subject not of the father's rights
as discussed in the common law cases on page 1652,
but the chancery jurisdiction, the parens patriae
jurisdiction delegated by the Crown, by the King,
to the Court of Chancery. His Honour cites
Lord Justice Kay in Gyngall dealing with the ambit
of the word "welfare" and the welfar·e of the infant

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for the purposes of the exercise of that
jurisdiction in the passage commencing the first
paragraph on that page commencing "It is also

settled law". And there is the oft quoted
proposition that "welfare" in this connection means
"the largest possible sense", and the Court doing
what under the circumstances a wise parent would
do. However, it is the Court acting judicially.
His Honour continues on referring again to

that, to the fallacy that it was said had arisen in
the earlier cases from a confusion between the
principles of the common law on a habeas corpus in
a pre-Judicature Act system requiring the custody
to be that of the father, or the consent to be that
of the father, and the course the chancery had
traditionally taken.
If I could take Your Honours further then to the judgment of Mr Justice O'Connor with whom
Mr Justice Barton agreed as he did with the

judgment of the learned Chief Justice. A further
portion of Gyngall is cited at page 1658, and
dealing with Lord Justice James's propositions
concerning the rights of the father, His Honour
turns to Lord Esher in Gyngall's case and the
jurisdiction of the Court of Chancery and how it
would be exercised for welfare or parens patriae in
that portion commencing at about point 4:
How is that jurisdiction to be exercised? The Court is placed in a position by reason of the prerogative of the Crown to act as supreme
parent of children, and must exercise that
jurisdiction in the manner in which a wise,
affectionate and careful parent would act for
the welfare of the child. The natural parent
in the particular case may be affectionate,
and may be intending to act for the child's
good, but may be unwise, and may not do what a
wise, affectionate and careful parent would

do. The Court may say in such a case that,
although they can find no misconduct on the
part of the parent, they will not permit that
to be done with the child which a wise,
affectionate and careful parent would not do.
The Court must, of course, be very cautious in
regard to the circumstances under which they

will interfere with the parental right. As
Knight Bruce V.C. said in Re Flynn the Court
must not act as if it were a private person

acting with regard to his child. It must act
judicially in the exercise of its power. That
its jurisdiction to interfere with the
parental right is not confined, as was argued,
to cases where there has been misconduct on

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the part of the parent seems to me clear from
many cases.

And then In re Flynn is cited, and the proposition
is put at page 1659 in the citation from In re
Flynn that where -
the father has so conducted himself, or has
shown himself to be a person of such a
description, or is placed in such a position -

I should indicate, Your Honours, that the
italicized words come from the citation in
Gyngall -
as to render it not merely better for the
children, but essential to their safety or to
their welfare, in some very serious and
important respect, that his rights should be
treated as lost or suspended - should be
superseded or interfered with.

The initial test proposed there is "very serious
and important respect".
If the word "essential" is too strong an expression, it is not much too strong.

Then Lord Esher continues:
That is a clear statement that the Court must
exercise this jurisdiction with great care and
can only act when it is shown that either the
conduct of the parent, or the description of
the person he is, or the position in which he
is placed, is such as to render it not merely
better, but - I will not say 'essential',
but - clearly right for the welfare of the
child in some very serious and important
respect that the parent's rights should be

suspended or superseded; but that, where it
is so shown, the Court will exercise its
jurisdiction accordingly.

Your Honours, we cite that passage and, indeed, the passage that appears at page 1664 in
the judgment of Mr Justice Higgins in dissent. It
is the same passage that is there repeated, and
His Honour's comments about it, for the proposition
that the test that one makes for the exercise of
this jurisdiction is a test which in general terms
must conform to the requirements there laid down.
We propose, for the purposes of this

particular case in these particular circumstances,
the test set out at paragraph 2 of our outline: an
invasive surgical procedure which results in the

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removal of the healthy reproductive organs and -
Your Honours, perhaps we should say a young woman
incapable of giving her own consent by virtue of
intellectual impairment and by virtue of her age -
cannot be carried out lawfully without the
authority of the appropriate judicial tribunal.
We would not seek to go over the arguments

that have already been presented in relation to the
authority of the judicial tribunal.

McHUGH J: Is the adjective "intellectually" fundamental to

your proposition or - - -

MR JAMES:	Only in so far as it operates on the question of the ability to give one's own consent, Your Honour.
GAUDRON J:	But it must go beyond that, must it not,

Mr James, because the real thing is that one can
contemplate that it might be in the best interests
of such a person for it to be performed, whereas
one simply cannot contemplate that it would be in
the best interests of a child who did not have that
impairment for it to be performed?

MR JAMES:

Yes, we accept that, Your Honour and, indeed, we

go so far as to say that all the cases made clear
that this jurisdiction, call it parens patriae or
welfare, is a protective and preventative
jurisdiction so that it is activated if there is a
question of a matter that may be a serious question within the terminology used in Gyngall and used in
this Court and if there is a person to put the
matter before the court.
We go so far as to say that as paragraph 5

sets out, the rationale for the principle is that
the procedure, not being required by an emergency,
involves a serious intrusion on the bodily
integrity of the child and we identify that as a

matter that supports the proposition that invasive
surgical procedures, of some kinds in some
circumstances, constitute unjustifiable serious
intrusions on the bodily integrity of the child
unless justified, and perhaps that may be a term
for the use of the principle that His Honour
Mr Justice Deane was describing as necessity,
unless justified in the circumstances by the order or approval or sanction of the court and that that
will occur where there is an irreversible removal
of a healthy organ.
We add subparagraph 4, that if the procedure involves a significant and controversial question
which requires examination by an objective and
independent authority, then it is one for which
there can be no consent without such an appropriate

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judicial tribunal or authority as may be
designated, either by the Commonwealth or the State
in a sufficient exercise of their constitutional
powers, and we do not wish Your Honours to become
involved in the Commonwealth, State, Territory
constitutional portion of this case, but there
being such a competent body its consent or approval
is required before such a procedure should be
undertaken.

TOOHEY J: Well, Mr James, put in that way, the construction

of the capacity to reproduce and therefore of the decision whether or not to reproduce falls into a category not of its own but into a category into

which other forms of surgery fall. Is that how we
are to read paragraph 5?

MR JAMES:

No, Your Honour, we would read it that our

remarks are not to be limited simply to seeking, as
it were, to uphold the right to have the potential
for procreation unless that right must justifiably
be removed but that right which has significance of
itself may also be regarded, because of the way in which the right is to be circumscribed, as a right
that operates in adjunct to the bodily integrity

that we also seek be preserved. We would seek to
have both the wider and the narrower in this case,
though it is not perhaps necessary for the court to
go beyond the question that there is a real basis
here to apprehend that a serious intrusion
involving the possible Effect upon the right of
reproduction and upon the right of bodily integrity
is contemplated; justification should, in our
submission, be sought. In effect, Your Honour, we
are seeking to have both.

BRENNAN J:

Mr James, when you speak about serious

intrusions, removal of healthy organs and so forth,
these are very weighty considerations of course.

MR JAMES:	They are, Your Honour.
BRENNAN J: But does the law give effect to them in any

other way than by creating criminal offences?

MR JAMES: Yes, there is, of course, civil liabilities of

various kinds. There are injunctions not only

under this Act but it may well be elsewhere. The
Human Rights and Equal Opportunity - - -

BRENNAN J:

I am not speaking about court remedies; speaking about the way in which the law operates to

I am

protect interests. Absent a criminal law which
prohibits the doing of these things, what is to
stop anybody from doing it?

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MR JAMES:

The appointment of a guardian to remove such

rights as some person may have to instruct a doctor
or practitioner; the removal of some such guardian
who might seek to procure such procedure to be
done; injunctions; criminal law. That,
Your Honour, in fact is more than the normal
complex of protections one has in Australia for the
protection of basic human rights.

BRENNAN J: If the procedure is done without any reference

to the court, what is the remedy?

MR JAMES: There is no practical remedy, Your Honour. There

may be a remedy in damages. There may be remedies
in the criminal sanctions but there is nothing
else.

BRENNAN J: Well then, leave aside the tort remedy, do not you need a criminal law to provide the protection and is not the criminal law that we are looking at

here the assault provisions of the Criminal Code?

MR JAMES:

Yes, Your Honour.

BRENNAN J: Well, is not the point simply whether or not the element of consent in the definition of the offence

of assault in the Criminal Code can be provided by
court order or not?

MR JAMES:

Mr Justice McHugh raised, yesterday, the question

concerning a federation. The problem did not arise
where the Crown both prosecuted and acted as parens
patriae in a sense and particularly in the
historical sense that has already been mentioned,
that operative procedures of this sort were almost
unknown until the middle of this century. But it
would be unthinkable for the Crown to prosecute,
the Crown having determined that what course it was
taking was in the best interests of those under its

protection. Of course it has got no right to
disobey the statutory criminal law or the common

law and in a federation that may present problems
from a State-Commonwealth relations point of view.
But it may be, Your Honour, that the solution

is not simply a solution of whether lawful, in this
question, means criminal or non-criminal. It may
be that the procedure, even if non-criminal, might
well be unlawful - well, it would be unlawful and,
in our submission, would be unlawful unless it was
established to be by a competent judicial tribunal
in the best interests or welfare of the child.

BRENNAN J:

I do not understand wl1.at "unlawful" means except

in breach of either a criminal law or of tort.

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MR JAMES:	Or a civil law, Your Honour, perhaps;	a law of

equity, a law administered by the Chancery Court
for the protection of infants. If a trustee, for instance, having obtained a judicial advice, were deliberately to seek to breach the obligations of his trust his conduct would be unlawful; and,
similarly, if a guardian, having obtained a
statement that the procedure should be done did not
do it or sought, on the other hand, to contradict
that which chancery had laid down, his conduct

would be unlawful. It may not be criminal in the
sense that Your Honour has been referring to under

the Code. I do not know if I have assisted or made
it worse but the word "unlawful", Your Honour, is
an ambiguous word.
If the inquiry here is, "What role does the

Family Court perform in relation to the Territory
and the States?", there is perhaps limited
assistance that, in the submissions I put on behalf
of my client intervening below and a party here,

can be to the Court. But if the inquiry is, "What
sort of procedures might well require the
intervention of the Court notwithstanding the
criminal law for them to be lawful?", then we
apprehend that the submissions we put, at
paragraphs 2 and 5, in the light of our attempt to
define the way in which chancery will intervene may
be of assistance to the Court.
I am reminded, of course, Your Honour, that

contempt is a sanction which might be available
where a person at least is before the court, either
actually as a party or because of being a court
appointment as guardian.
I have been asked, Your Honours, to refer to

the Code definition of "unlawful", which is to be
found in section 4.1, Part I, Schedule I:
"unlawful" or "unlawfully" means without

and, Your Honours, will note that the Code does authorization, justification or excuse -
provide for some attempt to assist on that
terminology. Division 2 deals with authorization;
Division 3 justification; and Division 4 excuse.
If I could take Your Honours to section 26, "Authorization", and perhaps I should do that in
the context of 24 and 25:
Any event -

using the language of the Code -

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resulting from an act or omission that was
authorized, justified or excused is,
accordingly, authorized, justified or excused.

Section 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.

Authorization:

(1) An act, omission or event is authorized
if it is done, made or caused -
(a) in the exercise of a right granted or
recognized by law;

The Code is of limited assistance, Your Honour,
except arising from the fact that it is a Code on
what "by law" means in that context.

(b) in execution of the law or in obedience
to, or in conformity with, the law;
(c) in obedience to the order of a competent
authority whom the person doing, making or
causing it is bound by law to obey, unless the
order is manifestly unlawful; or
(d) subject to section (3), pursuant to
authority, permission or licence lawfully
granted.

The exception, Your Honours, in (3) relating to:
kill him or, except in the case of medical
treatment, to cause him grievous harm.

In answer to what you put to me, Your Honour,
concerning the Northern Territory's criminal law
position, that appears to be as far as assistance
is to be derived by reference through to the word
"lawful" and "unlawful".
Your Honours, in relation too to the ambit of

this ancient power, Your Honours will find the
nature of that power and a summary as to it set
out, in addition to the references given by my
learned friend Mr Jackson in Re Eve, could we add

the discussion that appears at pages 28 to 30. I
would not seek to read those portions to the Court.
There was some discussion earlier about the nature
of the case that might have to be made for
intervention and in particular, regard was paid to

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Lord Justice Templeman in B, where there was
description of a sufficiently overwhelming case for

intervention. We would submit that the tests that
we have propounded, in the light of the cases I
have handed up, would provide a sufficiently
overwhelming reason and that, indeed, we propose a
more specific, or in this case, a more
particularized test.
Your Honours, it may well be that it will be

for the development of the court in the context of such cases as these, to craft the way in which the courts jurisdiction should be exercised and the

order should be made. It may be that any such
order might be made authorizing directly or
indirectly, on rigid conditions, including
conditions precedent; including approval by or a
consent from others, being persons interested,
parents, guardians, doctors; the appointment of
guardians ad litem for the purposes of the dispute;
it may be the appointment of a guardian of a
limited nature of a medical nature, could be
contemplated.
But Your Honours, the concern we have, at

bottom, is to ensure that that mechanism, which is
referred to in paragraph 7 of our submissions at
page 3, and in particular is that provided for by
the Declaration on the Rights of Mentally Retarded
Persons to be found in the schedule to the Human
Rights and Equal Opportunity Commission Act 1986, which is picked up again by the Declaration on the
Rights of Disabled Persons, clause 4, and appears set out in the appeal book at page 63, is complied with by whatever body there may be, which has to finally determine when such a procedure is to be undertaken. Your Honours, that clause provides:
"Whenever mentally retarded persons are
unable, because of the severity of their
handicap, to exercise all their rights in a

meaningful way or it should become necessary
to restrict or deny some or all of these
rights, the procedure used for that
restriction or denial of rights must contain
proper legal safeguards against every form of
abuse. This procedure must be based on an
evaluation of the social capability of the
mentally retarded person by qualified experts
and must be subject to periodic review and to
the right of appeal to higher authorities."
We apprehend there is nothing in that that in

any way differs from the proper exercise of the
welfare or parens patriae jurisdiction or from the
proper exercise of a statutory welfare jurisdiction

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by a court which has available the facilities and
powers of the Family Court.
In that sense, Your Honours, there is little

in this case that we would seek to put forward
suggesting that one has to look any further than to

the existing law or that there needs to be any
developing law. In our submission, it is not
necessary for their to be a development of the
common law. It has been here and, in accord with
that clause, ready to take cognizance of situations
such as this.
Unless I can assist the Court further, they

are the submissions we would put on behalf of the
intervener.

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

MR MASON:

I hand up 10 copies of our outline.

MASON CJ:

Thank you. and we can read the outline before tomorrow

Mr Solicitor, we will adjourn shortly

morning. Is there anything you want to say by way
of preliminary before we adjourn?

MR MASON:

There is perhaps just a couple of very brief

things. Before this case started, we were
concerned that the interest which drove
intervention on New South Wales' behalf might be
seen to be skewing the territorial aspects of the
case. But, as the case has developed, hopefully we
can give assistance to the Court on what appear to
be some of the emerging issues.
Our concern is not with an injunction from the

Family Court forbidding these procedures to take
place but whether the Family Court has jurisdiction
to permit it to take place and what is the
operation of any such declaration or order that
emerges from the Family Court. And, bearing in

mind the fact that Mr Justice Nicholson has said
that if the Family Court permits it to take place
then it may take place and, and as I read his
judgment, regardless of what State law says to the
contrary, then the questions of the interpretation
of the Part VII as a whole and questions of power
which in turn impact upon the interpretation are
matters which, while looking at it from a New South
Wales point of view, hopefully will have a more
general application to this case.

MASON CJ: Could I ask you how long you think your argument

will take now?

MR MASON:

I think perhaps about 30 minutes at most.

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MASON CJ:	And, Mr Riley?
MR RILEY:	Much will depend on Your Honours, but I would

expect a little over an hour, perhaps an hour and a
half.

MASON CJ: Yes. Yes, Mr James?

MR JAMES:

Prior to the Court adjourning, we did obtain a

list of articles, and we have one set so far
indexed, of the various publications concerning
these matters that Mr Justice Deane sought, and we
can provide that list and one set of the articles
to the Court.

MASON CJ: Well, I think if you hand those in at the

conclusion of the proceedings this afternoon, we
can arrange to have them copied.

MR JAMES:	May it please the Court.
MASON CJ:	The Court will now adjourn until 10.15 tomorrow

morning.

AT 4.16 PM THE MATTER WAS ADJOURNED

UNTIL THURSDAY, 2 MAY 1991

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he can get jurisdiction from somewhere else.	The
argument I am advancing is that - - -

interest in the welfare of a child.	So it is about
as broad as one can be. That is 63C.

altered by the Family Law Act provisions;	thirdly,
the jurisdiction of the Family Court in the particular case, and fourthly, the Court's

the criminal law.	Your Honours, I will come to the
detail of it in a moment.	I should also perhaps

or in particular circumstances by section 65 of the	of course, as contemplated in the particular case	Family Law Act or, again, in appropriate circumstances, by an organization which has
statutory power to provide such representation on
the part of the child.

various cases which may touch upon the point.	May
I do so in writing.

parens patriae jurisdiction in the court.	By a
curiosity of legislative repeal it had gone.

nature of the common law is the law of assault;	it
is that consent per se never makes legitimate the
infliction of permanent injuries to health. That is reflected, for example, in Griffith's Criminal Code at section 320. It is not an assault to

in passing, Your Honour.	I do not want to be put
as one of the developing countries.	I simply say
the common law is where it is.	I am not going
ahead of it;	we are in the mainstream - perhaps
behind it.	Your Honours, having said that, may I
come to what Your Honour put to me.	Your Honour, I

Honours additional copies of those.	The amending
Act appears in the last part of it.

goes from there to section 149.	Your Honours, that
confers a duty on a -

to which Your Honours were referred yesterday.	I
do not think I need to go particularly to that.

little too quickly to that case.	May I ask
Your Honours to keep it for just a moment.	I

a car accident.	So, Your Honours, the issue was
clearly raised in that case.	And Your Honours will
see, at page 502, in the second new paragraph in

and so on.	Now, Your Honours, that is the case to
which the Supreme Court referred.	May I go back

basic.	And Your Honours, it does, of course, have
a fundamentally different character from really any

behalf of the incompetent.	The parents are
unquestionably eligible to do so.	The

the application.	Could I give an instance of the
latter case.	It might well be that one had a

tend not to exist entirely in a vacuum.	Most
children have some family who are alive.	One may

and I should mention one thing, Your Honours.	On
page 480, the first new paragraph in the right
column, Their Honours say:

consent to the procedures.	I will do so very
quickly if I may.

appellate court.	Your Honours will see at page 9
His Honour states the general issue in the first

Your Honour, perhaps I should say one thing before moving from that case and it is this:	it is
not clear that the other members of the court

jurisdiction had extended beyond minors he would
have found it there.	But not being able to find it

far as concerns infants.	Your Honours, that was
his perception of it.

issue is also there discussed.	Your Honours, the
second feature I should mention before I get to

you are right that this is a proceeding in relation to the welfare of the child, any conceptual	difficulties in relation to an order of this kind
apply equally to an order for custody, an order for guardianship or an order for access?

things, welfare of a child.	Now it speaks of those
proceedings and it says:

deals with access.	Your Honours, I have omitted,
in passing over the sections, to take Your Honours

prohibition would it do it.	The answer is probably
no.	But if one comes to a different situation, and