The Secretary of the Department of Health and Human Services v AA and AB
[2017] VSC 34
•8 February 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2015 03971
IN THE MATTER of questions of law reserved under s 533 of the Children, Youth
and Families Act 2005
BETWEEN:
| THE SECRETARY OF THE DEPARTMENT OF HEALTH AND HUMAN SERVICES | Applicant |
| - and - | |
| AA - and – AB - and – THE ATTORNEY-GENERAL FOR THE COMMONWEALTH OF AUSTRALIA | First Respondent Second Respondent Intervenor |
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JUDGE: | Cavanough J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 3 February 2016 |
DATE OF JUDGMENT: | 8 February 2017 |
CASE MAY BE CITED AS: | The Secretary of the Department of Health and Human Services v AA and AB |
MEDIUM NEUTRAL CITATION: | [2017] VSC 34 First revision: 14 February 2017 |
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CONSTITUTIONAL LAW – Questions of law reserved by the Children’s Court in the form of a special case stated under s 533 of the Children, Youth and Families Act 2005 (Vic) – Whether inconsistency between detention provisions in the Commonwealth Migration Act 1958 and child protection provisions in the Victorian Children, Youth and Families Act 2005 – Whether ‘covering the field inconsistency’ or ‘direct inconsistency’ – Whether ‘operational inconsistency’ – No inconsistency – Victorian provisions not invalid – Commonwealth Constitution, s 109 – Migration Act 1958 (Cth), ss 4, 4AA, 13, 14, 189, 196, 197AA, 197AB, 197AC, 197AD, 197AE, 197AF, 197AG – Children, Youth and Families Act 2005 (Vic), ss 1, 4, 5, 162, 240, 241, 242, 262, 263, 264, 266, 267, 268, 274, 275, 280, 281, 282, 533
COSTS – Special case stated – Indemnity certificates – Appeal Costs Act 1998, s 19
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr R Niall QC, Solicitor General, with Mr L Brown | Victorian Government Solicitor |
| For the First Respondent | Mr W Smith | Shane Balkin & Associates |
| For the Second Respondent | Mr S Glacken QC with Ms K Foley | Cathleen Corridon & Associates |
| For the Commonwealth Attorney-General (intervening) | Dr S Donaghue QC with Mr N Wood | Australian Government Solicitor |
HIS HONOUR:
Overview: child protection and unlawful non-citizens
In 2015 the Victorian Department of Health and Human Services was in doubt about the extent to which the Department could take effective steps under the Children, Youth and Families Act 2005 (Vic) (‘the CYF Act’), particularly by way of application to the Children’s Court of Victoria, to protect vulnerable children who were ‘unlawful non-citizens’ within the meaning of the Migration Act 1958 (Cth) and who were covered by the so called mandatory detention regime erected by that Act, especially children placed in what is colloquially known as ‘community detention’. Issues of statutory construction and of federal constitutional law were perceived to be involved. Accordingly, in the course of a proceeding involving such a child then pending in the Children’s Court, the Department successfully applied to have certain questions of law reserved for the consideration of this Court in the form of a special case stated.
However, as the parties involved in the matter progressively filed their outlines of submissions in this Court, and as the final hearing approached, the Victorian Department’s doubts and concerns abated. In the end, all of the parties actively involved in the proceeding agreed on the answers to be given to the questions of law that had been reserved. On the other hand, there were still some differences between those parties as to the reasoning that should be adopted as underpinning the answers. In the event, it was common ground that the Court should proceed to consider and determine the reserved questions and should publish its reasons.
The proceedings and the parties
On Friday 13 March 2015, an officer of the Department, Melissa Patrick, in her capacity as a delegate of the Secretary of the Department and thus as a ‘protective intervener’ within the meaning of the CYF Act, placed a four year old child who was an unlawful non-citizen and who, for privacy reasons, has been referred to throughout as ‘AB’, in emergency care pursuant to s 241 of the CYF Act. On the same day, under s 243 of the CYF Act, Ms Patrick made a protection application to the Children’s Court in respect of AB. The proceeding thus commenced by Ms Patrick in the Children’s Court is the proceeding in which, ultimately, the questions of law were reserved. AB, as a party to both the proceeding in the Children’s Court and the proceeding in this Court, has been separately represented at all relevant times by appointed counsel. Another party to both proceedings is AB’s mother, who was likewise an unlawful non-citizen and who, also for privacy reasons, has been referred to as ‘AA’. Between the commencement of the Children’s Court proceeding and July 2015, Ms Patrick sought and obtained five interim accommodation orders under s 262 of the CYF Act in respect of AB. A sixth application by Ms Patrick, being simply an application to extend the fifth interim accommodation order, was foreshadowed. Ms Patrick had also indicated to the Children’s Court that she intended in due course to apply for substantive relief by way of a particular form of protection order in respect of AB, namely a supervision order under s 280 of the CYF Act (as it then stood).
However, in July 2015, the abovementioned legal doubts and concerns having arisen, and counsel for the Commonwealth of Australia having come in to assist as a friend of the Children’s Court, the Secretary (as distinct from the Secretary’s delegate, Ms Patrick) applied, within the Children’s Court proceeding, for the reservation under s 533 of the CYF Act of the specified questions of law. The questions were incorporated in a proposed special case. The form of the proposed special case was developed and agreed to by counsel then appearing for the Secretary, AA and AB respectively, with input also from counsel for the Commonwealth. Section 533 of the CYF Act provides that if a question of law arises in a proceeding before the Children’s Court the Court of its own motion or on the application of any person ‘who is a party to the proceeding’ may reserve the question for the opinion of the Supreme Court. No point has been taken before me about the fact that the Secretary (as distinct from the Secretary’s delegate) was apparently not a party to the proceeding in the Children’s Court prior to the making of the application under s 533 of the CYF Act. I assume that the Secretary became a party before or at the time of the making of that application (compare s 215(3) of the CYF Act). The Secretary personally is a ‘protective intervener’ within the meaning of the CYF Act (see s 181(a) of the CYF Act). Certainly, the person named as the applicant in the proposed special case was ‘The Secretary of the Department of Health and Human Services’.
On 30 July 2015, having heard counsel for the parties and counsel for the Commonwealth, the President of the Children’s Court, Judge Chambers, acceded to the Secretary’s application under s 533 of the CYF Act, giving written reasons. Accordingly, Her Honour ordered that the questions of law included in the proposed special case (which was annexed to the order) be reserved in the form of a special case stated for the opinion of this Court.
The named applicant in this Court is, once again, ‘The Secretary of the Department of Health and Human Services’. Originally, the only other named parties were the mother, AA, and the child, AB. However, notices of a constitutional matter under s 78B of the Judiciary Act 1903 (Cth) were sent to all appropriate jurisdictions. Subsequently, the Attorney-General for the Commonwealth intervened under s 78A of the Judiciary Act 1903 (Cth). There was no intervention on behalf of any other State or Territory. The Attorney-General for the Commonwealth does not suggest that there is anything inaccurate or (so far as the documentary attachments are concerned) inauthentic in the special case stated.
By the time of the hearing before this Court, AA (the mother) had indicated that she took no issue with the ability of the State authorities to apply for and obtain legally valid orders in respect of AB and did not intend to oppose the making of a supervision order for a period of time whereby AB would remain in her care. Otherwise, AA indicated, in effect, that she was content to abide the decision of the Court on all matters, subject only to the further submission (which was accepted on all sides) that the special case stated did not permit or require any finding to the effect that AA was or had been in breach of any relevant legal obligation.
The terms of the special case stated
The special case stated comprises six pages of text, together with nine attachments marked ‘A’ to ‘I’ respectively. As will be seen, the text includes ten footnotes, of which nine simply refer to and identify the respective attachments. Omitting the formal parts, the text reads:
Jurisdiction
1.This proceeding is within the Court’s jurisdiction to determine a question of law reserved by the Children’s Court in the form of a special case stated for the opinion of the Supreme Court under s 533 of the Children, Youth and Families Act 2005 (Vic) (the CYF Act).
Relevant persons
2.The Applicant (the Secretary) is a ‘protective intervener’ for the purposes of the CYF Act.
3.AB (the Child) is four years old and an unlawful non-citizen for the purpose of s 14 of the Migration Act 1958 (Cth) (the Migration Act).
4.The Child is the daughter of AA (the Mother) who is also an unlawful non-citizen for the purpose of s 14 of the Migration Act.
5.The Minister for Immigration and Border Protection, who is not a party to this proceeding, is the minister for responsible for administering the Migration Act.
Events
6.On 5 February 2015, the Minister for Immigration and Border Protection made a residence determination under s 197AB of the Migration Act with respect to the Child and the Mother (the residence determination).[1]
[1]Attached and marked ‘A’.
7.The residence determination stated that the Child and the Mother were to reside at a specified place, being [street address stated], Hamlyn Heights, VIC, 3215. The residence determination also specified certain conditions to be complied with by the Child and the Mother, including to the effect that the Child and the Mother:
(a)must live at the specified place; and
(b)must seek prior approval from the Department of Immigration and Border Protection (DIBP) if they wished to stay temporarily at a different address from the specified place.
8.During the time that the Child and the Mother resided at the specified place, a not-for-profit organisation, Life Without Barriers (ACN 101 252 171) (the Service Provider), provided services for the Child and the Mother.
9.On 13 March 2015, a delegate of the Secretary (a protective intervener for the purpose of s 181 of the CYF Act), acting under s 241(1)(a) of the CYF Act, placed the Child in emergency care at an address other than the address specified in the residence determination.
10.Subsequently, on 13 March 2015, the delegate of the Secretary made a protection application under s 243 of the CYF Act to the Children’s Court sitting at Geelong for a finding that the Child was a child in need of protection (the protection application).[2]
[2]Attached and marked ‘B’.
11.On 17 March 2015, the Children’s Court sitting at Geelong made an interim accommodation order under ss 262(1) and 263(1)(d) of the CYF Act, placing the Child in an out of home care service, Mackillop Family Services, until further order of the Court (the 1st interim accommodation order).[3]
[3]Attached and marked ‘C’.
12.Subsequently, on 17 March 2015 the Child commenced staying at an address in Lorne, Victoria 3232 (the Lorne address), in the care of a foster carer provided by Mackillop Family Services. The Service Provider sought approval from DIBP for the Child to stay temporarily at the Lorne address. On 18 March 2015, DIBP gave approval for the Child to stay temporarily at the Lorne address.
13.On 8 April 2015, the DIBP wrote to the Registrar of the Children’s Court in relation to this matter.[4]
[4]Attached and marked ‘D’.
14.On 9 April 2015, the Children’s Court sitting at Geelong made an interim accommodation order under ss 262(1) and 263(1)(d) of the CYF Act, continuing the placement of the Child in the care of Mackillop Family Services, until further order of the court (the 2nd interim accommodation order).[5] Following the making of that order, the Child continued to stay at the Lorne address.
[5]Attached and marked ‘E’.
15.On 10 April 2015, the protective intervener prepared an ‘application and disposition report’ for the Children’s Court, in anticipation of an application for a custody to Secretary order under s 287 of the CYF Act. In summary, the report noted that the main concerns for the Child’s safety were a risk of harm due to the following matters:
15.1The Child was exposed to the Mother’s longstanding mental health issues, including diagnosed Personality Disorder, Attachment Disorder of Childhood and Maternal Mental Health Disorder. The Mother had experienced recent episodes of self-harm.
15.2The Child was exposed to the risk of violence at the hands of the Mother. In November 2014, the Mother had been charged with assaulting the Child. The charge had been found proven in the Northern Territory but no conviction was recorded. As a result of the circumstances surrounding the charges, the Child had spent three weeks away from the care of the Mother in late 2014.
15.3The Mother had an intimate relationship with a particular man, who the Mother alleged on 11 March 2015 had been violent towards the Child and had sexually assaulted the Mother. It was not clear that the Mother would no longer be involved in a relationship with the man.
16.On 7 May 2015, the Children’s Court sitting at Geelong made an interim accommodation order under ss 262(1)(f) and 263(1)(d) of the CYF Act, continuing the placement of the Child in the care of Mackillop Family Services, until further order of the Court (the 3rd interim accommodation order).[6] Following the making of that order, the Child continued to stay at the Lorne address.
[6]Attached and marked ‘F’.
17.On 4 June 2015, the Children’s Court sitting at Geelong made an interim accommodation order under ss 262(1) and 263(1)(d) of the CYF Act, continuing the placement of the Child in the care of Mackillop Family Services, until further order of the Court (the 4th interim accommodation order).[7] Following the making of that order, the Child continued to stay at the Lorne address.
[7]Attached and marked ‘G’.
18.On 9 July 2015, another delegate of the Secretary and protective intervener prepared a ‘conciliation conference – addendum report’, in accordance with cl 2.4 of the Guidelines for Conciliation Conferences published by the Children’s Court. In summary, the report noted that the concerns for the Child’s safety had substantially lessened, with the Mother demonstrating substantial insight into the needs and safety of the Child. Further, the Child had not demonstrated any fear of being with the Mother and wished to stay with the Mother.
19.On 9 July 2015, the DIBP wrote to the Registrar of the Children’s Court in relation to this matter.[8]
[8]Attached and marked ‘H’.
20.On 9 July 2015, the Children’s Court sitting at Geelong made an interim accommodation order under ss 262(1)(b) and 263(1)(b) of the CYF Act that ‘the child is to be released into the care of [the Mother] number 6 “X Street”[9] in Bell Park 3215 … pending the hearing or the resumption of the hearing’ (the 5th interim accommodation order).[10] The 5th interim accommodation order included conditions as follows:
[9]Not the real street name.
[10]Attached and marked ‘I’.
12.DHHS will continue to consult with the Department of Immigration should a change of address be considered.
13.DHHS will provide the Department of Immigration any change of address as soon as practically possible.
21.Subsequently, on 9 July 2015 the Child commenced living with the Mother at number 5 ‘X Street’ (not the real street name), Bell Post Hill, Victoria 3215 (the Bell Post Hill address). The Service Provider sought approval from DIBP for the Child to stay temporarily at the Bell Post Hill address. By 10 July 2015, DIBP gave approval for the Child to stay temporarily at the Bell Post Hill address.
22.On 30 July 2015, the Children’s Court sitting at Melbourne exercised the power conferred by rule 36.08 of the Magistrates’ Court General Civil Procedure Rules 2010 to amend the 5th interim accommodation order to correct the address of the Mother to ‘number 5 “X Street” in Bell Post Hill, 3215’.
Future conduct of the proceeding
23.The Secretary’s delegate presently intends to apply to the Children’s Court under s 267(1) of the CYF Act for extensions to the 5th interim accommodation order until this matter is finally determined.
24.The Secretary’s delegate also presently intends to recommend that the Children’s Court make, as final relief, a protection order in the form of a 12-month supervision order under s 280 of the CYF Act providing for the Child to be placed in the day to day care of the Mother (the protection order).
Questions
25.The following questions are reserved for the opinion of the Supreme Court:
1.Is s 241 of the CYF Act invalid pursuant to s 109 of the Commonwealth Constitution, to the extent that it authorised the Secretary to take the Child into emergency care while the Child was an unlawful non-citizen and the subject of the residence determination?
2.Is s 267 of the CYF Act (when read with ss 262 and 263 of the CYF Act) invalid, pursuant to s 109 of the Commonwealth Constitution, to the extent that it authorises the Children’s Court to extend the 5th interim accommodation order while the Child is:
(a)an unlawful non-citizen; or
(b)the subject of the residence determination?
3.Is s 280 of the CYF Act invalid, pursuant to s 109 of the Commonwealth Constitution, to the extent that it authorises the Children’s Court to make a protection order in relation to the Child while the Child is:
(a)an unlawful non-citizen; or
(b)the subject of the residence determination?
Should the Court answer the reserved questions?
I am satisfied that this Court has jurisdiction and power to entertain the special case stated; that there is sufficient utility in answering the questions reserved; and that it is otherwise appropriate to answer those questions.
In the letter dated 9 July 2015 referred to in paragraph 19 of the special case, being the letter constituting attachment H, the author, who signed as an acting principal legal officer of the Civil Litigation and Compensation Section of the Department of Immigration and Border Protection, addressing himself to the Registrar of the Children’s Court at Geelong, said, among other things:
There remains a residence determination in force under section 197AB of the Migration Act in relation to Ms AB and there is a question as to the Court’s power to make an order requiring Ms AB to reside at an address other than that specified in the residence determination.
Within about two weeks of that letter, a written submission dated 24 July 2015 prepared by senior and junior counsel on behalf of the Secretary was put before the Children’s Court. Omitting footnotes, paragraphs 8 to 15 of that submission were in the following terms:
8.Section 533(1) (of the CYF Act) poses three essential pre-conditions before the Court’s discretion to reserve a question of law arises:
8.1there is a proceeding before the Court;
8.2there is a question of law; and
8.3that question of law has arisen in the proceeding.
9.The first element is uncontroversial — there is a protection application before the Court.
10.A question of law is a question that is to be resolved by applying legal principles rather than by determining the existence of a fact or facts. In the present case, as set out in the draft case stated, the principal issues are whether:
10.1the Secretary had the power to take the child into emergency care;
10.2the Court had the power to make various interim accommodation orders under the CYF Act; and
10.3the Court has the power to make the protection order that will ultimately be sought by the Secretary.
It is uncontroversial that the determination of the questions whether the Secretary and Court had or has the relevant power will determine a question of law.
11.The issue pervading all of the questions appended to the draft case stated is whether, by virtue of s 109 of the Constitution and the statutory prescriptions of the Migration Act, there is any room left for the Secretary and Court to exercise powers conferred by the CYF Act in relation to the location of residence of a child who is an unlawful non-citizen as defined by the Migration Act — because the Migration Act reveals an intention that it is to be a complete statement of the law governing that subject.
12.Alternatively, even if the Migration Act does not ‘cover the field’ of the location of residence of a child who is an unlawful non-citizen, the Secretary and the Court cannot exercise powers in a manner that would conflict with the exercise of powers under Commonwealth legislation. That conflict is brought into sharp focus by:
12.1the terms of the residence determination made under the Migration Act … ; and
12.2 the terms of the protection orders already made … .
In the result, that means that the issues set out in paragraph 10 above lead to questions that arise in the proceeding.
13.The discretion to refer questions of law to the Supreme Court is, on its face, without bounds. In the current case, relevant to the exercise of the discretion is the public interest in attaining certainty about the extent of the Secretary’s and the Court’s powers in relation to children who are unlawful non-citizens living in the community but for whom there are concerns as to their safety or welfare.
14.It might be said that no questions of law arise because no party in the current proceeding has sought to dispute or disobey the Secretary’s actions or the Court’s orders.
14.1 However, that fact does not affect the legal situation:
(a)If there is inconsistency within s 109 of the Constitution, the actions taken by the Secretary and the orders made by the Children’s Court are invalid, and the Secretary and the Court have exceeded their power; and
(b)If there is such inconsistency, the Children’s Court may lack the power to make further orders.
14.2Nor does it follows that no party will dispute or disobey similar purported orders in the future.
15.In the end, there is a substantial public interest in having the questions of law that are appended to the draft special case stated referred to the Supreme Court so that those questions can be answered. Those answers would give legal certainty to the scope of the Secretary’s and the Court’s powers in relation to children who are unlawful non-citizens and for whom there are safety or welfare concerns.
Those paragraphs of the Secretary’s submissions were, in substance, accepted by Judge Chambers in her reasons for decision dated 30 July 2015. Her Honour added that, in her view, notwithstanding that the taking of AB into emergency care was a past event, the question whether the Secretary had the power to take an unlawful non-citizen child into emergency care under s 241(1) of the CYF Act was so closely interrelated to the question of the power of the Court to make and/or extend an interim accommodation order in respect of such a child that the former question did arise in the proceeding. Her Honour said that it was certainly appropriate that it remain included in the special case stated, a course which, her Honour noted, was not opposed by any party. In the end, her Honour expressed herself as being satisfied that all of the proposed questions of law arose in the proceeding; and her Honour proceeded, accordingly, to make the order for reservation of those questions of law.
In my opinion, Judge Chambers was correct in accepting that the pre-conditions of s 533 of the CYF Act had been met, having regard to the legislative background, the steps which had been taken to that point by the Secretary’s delegate, the warning that had been issued by the Department of Immigration and Border Protection on 9 July 2015 and the tenor of the written submissions dated 24 July 2015 prepared by senior and junior counsel on behalf of the Secretary. It is true that the step of taking AB into emergency care under s 241 had been completed, but the legal validity of that step remained of potential significance in the proceeding. In that regard, her Honour Judge Chambers appropriately drew attention to s 242(5) of the CYF Act, which provides that until an application for an interim accommodation order is made to the Court or a bail justice, a child placed in emergency care under s 241 may only be placed in certain specified types of accommodation. I note also that s 240(3) provides that if a child has been placed in emergency care under s 241, a protective intervener must as soon as possible make a protection application to the Court. In addition, I note that s 242(2) provides that if a child has been placed in emergency care under s 241, the Court must hear an application for an interim accommodation order in respect of the child as soon as practicable and in any event within one working day after the child was placed in emergency care. Those provisions, at least in combination, indicate, in my view, that the validity or otherwise of s 241 of the CYF Act continued to have significance in relation to the proceeding in the Children’s Court.
It follows that, when the special case stated was received by this Court, the jurisdiction of this Court was properly invoked.
Further, it was the initial position of the Secretary in this Court that the relevant provisions of the CYF Act were, or might be, invalid. Indeed, at the directions hearing which I conducted in this matter on 5 October 2015, counsel for the Secretary indicated that the Secretary then intended to submit that ss 241, 262 and 280 of the CYF Act were rendered invalid by the Migration Act 1958 pursuant to s 109 of the Commonwealth Constitution.[11] The Secretary’s indication was subsequently noted in the written submissions of the Attorney-General of the Commonwealth (intervening) dated 16 November 2015.[12] The Attorney-General also noted in those submissions that the position of the Secretary had, in the meantime, changed. However, this did not lead the Attorney-General to submit that the reserved questions had become inappropriate to answer.
[11]Transcript of proceedings, Secretary of the DHHS v AA and AB (Supreme Court of Victoria, S CI 2015 3971, Cavanough J, 5 October 2015) 4.
[12]Written submissions of the Attorney-General of the Commonwealth (intervening) dated 16 November 2015 [2].
On the other hand, in submissions dated 2 December 2015 prepared by senior and junior counsel and filed on behalf of AB, it was submitted that the change of position on the part of the Secretary had rendered the questions inappropriate to answer. Detailed arguments in support of that proposition were included in the submissions. A further point made on behalf of AB in the submissions was that certain amendments to the CYF Act were due to commence on 1 March 2016, being amendments that affected ss 262 and 280 of the CYF Act. It was submitted that the pending amendments were such as to reduce the usefulness of any answers to the questions referred. In addition, it was suggested that the Secretary’s change of position meant that there may no longer be a ‘matter’ to be determined in the exercise of federal jurisdiction.
In reply submissions dated 21 December 2015, the Secretary noted that each of the child, the Attorney-General of the Commonwealth and the Secretary had by that time reached agreement that the questions of law reserved for the opinion of the Supreme Court should all be answered ‘No’.[13]
[13]The position of the mother, AA, remained to be clarified.
However, according to the Secretary’s submissions, this did not render the Supreme Court proceeding moot or deny the existence of a matter capable of being heard by the Court in the exercise of federal jurisdiction. Rather, the Secretary submitted, there remained an underlying controversy in respect of which the jurisdiction of the Children’s Court had been invoked. The answers to the questions of law reserved for the opinion of the Court would determine whether that jurisdiction had properly been invoked and could continue to be exercised.
In addition, the Secretary maintained, where a question arises as to the existence or extent of the jurisdiction of a tribunal, a ‘matter’ arises in federal jurisdiction even where the party who invoked that jurisdiction has since ceased to pursue the controversy in respect of which the jurisdiction was invoked, provided that the possibility of his or her re-invoking the tribunal’s jurisdiction remained theoretically open.[14] The situation was a fortiori, the Secretary submitted, where the parties clearly contemplate the ongoing exercise by the tribunal (or, in this case, the Children’s Court) of jurisdiction. The mere fact that the parties agreed on the answers did not mean that the questions had ceased to hold practical significance for them. Further, there were differences between the parties as to the reasoning which should be adopted in coming to the suggested negative answers to the questions. In particular, there were differences between the parties as to the proper interpretation of the relevant legislation and as to the meaning of the residence determination.
[14]Minister for Immigration & Multicultural & Indigenous Affairs v SBAN [2002] FCAFC 431.
I will come to the detail of the differences between the parties as to the appropriate reasoning in due course, but I accept that the mere existence of the differences strongly supports the submission made by the Secretary in the reply submissions of 21 December 2015 that this matter is not moot and that there remains utility in the consideration and determination of the special case stated. Further, as the Secretary there submits, the amendments of 1 March 2016 do not significantly affect the utility of answering the reserved questions.
Moreover, AB no longer contends that the Court should not proceed to answer the questions. By a joint memorandum to the Court dated 29 January 2016 forwarded on behalf of the Secretary, AB and the Attorney-General of the Commonwealth (intervening), it was put that the fact that those parties now agreed as to the answers that should be given to the reserved questions did not affect the jurisdiction of the Court to answer the questions. Nor, it was further put, did that circumstance of itself deprive the answers of utility.[15] It was noted that the Children’s Court had sought the guidance of the Supreme Court in relation to the answers to the reserved questions, being questions that, if answered in one way, would mean that the Children’s Court had no power to make the orders sought by the delegate of the Secretary. Further, the joint memorandum noted, the legal issues underlying the reserved questions were of some complexity and there were still some differences between the parties as to the reasoning that led to the proposed result that each question be answered in the negative. In addition, it was submitted, the Court was not a mere selector between rival interpretations advanced by the parties. It could and should arrive at the interpretation it considered proper.[16] In those circumstances, the Secretary and the Attorney-General submitted, there was utility in the Court answering the reserved questions, and the Court should publish its reasons for the answers given. This was stated to be a course ‘not opposed’ by the child, AB.
[15]Reference was made to ACCC vMSY Technology Pty Ltd (2012) 201 FCR 378, 382–385 [14]–[20], and the cases there cited.
[16]Citing Tucci v Victorian Civil and Administrative Tribunal [2010] VSC 425 [16].
Subsequently, at the oral hearing itself, counsel for AB went further and consented to the Court answering the referred questions.[17]
[17]Transcript of proceedings, Secretary of the DHHS v AA and AB (Supreme Court of Victoria, S CI 2015 3971, Cavanough J, 3 February 2016) 68, 73, 75 (‘Transcript’).
As indicated above, by the time of the hearing before this Court, subject to the points mentioned above, AA was content, in effect, to abide the decision of the Court.
In my view, the position ultimately advanced, jointly, by the active parties is correct. Accordingly, I will proceed to address the special case stated and to answer the reserved questions of law.
Legal principles – section 109 of the Constitution
Section 109 of the Commonwealth Constitution provides:
When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.
The general principles to be applied where a question arises as to whether State legislation is invalid by virtue of s 109 of the Constitution were recently summarised by the High Court (French CJ, Kiefel, Bell, Keane, Nettle and Gordon JJ) in Bell Group NV v Western Australia,[18] as follows:
[18](2016) 331 ALR 408, 422 [50]–[52]. Footnotes included but renumbered.
Where there is an alleged conflict between a Commonwealth law and a State law, ‘s 109 requires a comparison between any two laws which create rights, privileges or powers, and duties or obligations, and s 109 resolves conflict, if any exists, in favour of the Commonwealth’.[19]
A conflict may arise in a number of ways. The State law, if valid, might ‘alter, impair or detract from the operation of a law of the Commonwealth Parliament’.[20] If so, then to that extent it will be invalid because of what sometimes is described as ‘direct inconsistency’.[21] As the court said in Jemena:[22]
The crucial notions of ‘altering’, ‘impairing’ or ‘detracting from’ the operation of a law of the Commonwealth have in common the idea that a State law conflicts with a Commonwealth law if the State law undermines the Commonwealth law. (emphasis added).
The conflict may also arise from the laws’ legal operation or from their practical effect.[23]
‘[A]ny alteration or impairment of, or detraction from, a Commonwealth law must be significant and not trivial’.[24] The question of whether any alteration or impairment of, or detraction from, a Commonwealth law is significant is ‘always one of fact and degree’.[25] The starting point is an analysis of the laws in question and their true construction.[26] The extent of the inconsistency ‘depends on the text and operation of the respective laws’.[27] …
[19]Jemena Asset Management (3) Pty Ltd v Coinvest Ltd (2011) 244 CLR 508, 523 [37] (‘Jemena’).
[20]Jemena (2011) 244 CLR 508, 524 [39]. See also Victoria v Commonwealth (The Kakariki) (1937) 58 CLR 618, 630; Telstra Corporation Ltd v Worthing (1999) 197 CLR 61, 76 [28] (‘Telstra’); Dickson v The Queen (2010) 241 CLR 491, 502 [13]–[14] (‘Dickson’).
[21]See Dickson (2010) 241 CLR 491, 502 [14]. See also Telstra (1999) 197 CLR 61, 76 [27].
[22](2011) 244 CLR 508, 525 [41]. See also Metal Trades Industry Association v Amalgamated Metal Workers’ and Shipwrights’ Union (1983) 152 CLR 632, 642–643 and 651; Telstra (1999) 197 CLR 61, 76 [27].
[23]APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322, 399–400 [202]–[206] (‘APLA’).
[24]Jemena (2011) 244 CLR 508, 525 [41].
[25]APLA (2005) 224 CLR 322, 400 [206].
[26]Momcilovic v The Queen (2011) 245 CLR 1, 111 [242], 135 [323] (‘Momcilovic’).
[27]Jemena (2011) 244 CLR 508, 526 [45], quoting Western Australia v Commonwealth (Native Title Act Case) (1995) 183 CLR 373, 465.
More pertinently for the present case, I accept as correct the following submissions made on behalf of the Attorney-General for the Commonwealth (intervening):[28]
The analysis that is required by s 109 of the Constitution varies depending on the characteristics of the laws that are said to be inconsistent. Some laws may be described as ‘self-executing’: they immediately operate on the subject matter and create rights and liabilities. Other laws may be described as ‘facultative’: rights and liabilities are created only upon the exercise of a power conferred by the law.[29]
A Commonwealth law of the latter kind may not be an exhaustive statement of rights and liabilities with respect to a particular subject-matter, but may nevertheless confer a power that, once exercised, cannot be impaired or altered either directly by any State law, or by any action taken under State law. The ‘practical operation’ of such a Commonwealth law is not impaired by a State law that operates within the same general area in advance of an exercise of power under the Commonwealth law.[30] Only if and when a Commonwealth authority exercises power under its law, and the operation of the State law would impair, alter or detract from the exercise of that power,[31] would an ‘operational inconsistency’ between the State law and the Commonwealth law arise.[32] If that occurs, s 109 of the Commonwealth Constitution renders the State law ‘invalid’ (meaning ‘inoperative’) to that extent, although the State law would revive once the inconsistency ceased to exist.[33]
While it may on occasion be convenient to refer by way of shorthand to different ‘types’, ‘forms’, ‘circumstances’ or ‘aspects’ of inconsistency, the ultimate question is always whether there is a ‘real conflict’ between a Commonwealth law and a State law.[34]
The Migration Act 1958 (Cth)
[28]Written submissions of the Attorney-General of the Commonwealth (intervening) dated 16 November 2015 [5]–[7]. Footnotes included but renumbered.
[29]See, for eg, Flaherty v Girgis (1987) 162 CLR 574, 602 (Brennan J); Momcilovic (2011) 245 CLR 1, 112 [248] (Gummow J).
[30]R v Winneke; Ex parte Gallagher (1982) 152 CLR 211, 216 (Gibbs CJ) (‘Winneke’); APLA (2005) 224 CLR 322, 399 [201] (Gummow J); Momcilovic (2011) 245 CLR 1, 112–115 [246]–[257] (Gummow J).
[31]See Telstra (1999) 197 CLR 61, 76 [28] (the Court); Dickson v The Queen (2010) 241 CLR 491, 502 [13] (the Court); Jemena (2011) 244 CLR 508, 524–525 [39]–[41] (the Court).
[32]Victoria v The Commonwealth (The Kakariki) (1937) 58 CLR 618, 626 (Latham CJ), 628 (Starke J) and 630–631 (Dixon J); Carter v Egg and Egg Pulp Marking Board (Vic) (1942) 66 CLR 557, 574–576 (Latham CJ); Winneke (1982) 152 CLR 211, 221 (Mason J); P v P (1994) 181 CLR 583, 606 (Mason CJ, Deane, Toohey and Gaudron J); Commonwealth v Western Australia (Mining Act Case) (1999) 196 CLR 392, 417 [61] (Gleeson CJ and Gaudron J); APLA (2005) 224 CLR 322, 399 [201] (Gummow J); Bitannia Pty Ltd v Parkline Constructions Pty Ltd (2006) 67 NSWLR 9, 41 [116] (Basten JA, with whom Hodgson JA agreed).
[33]As Higgins J explained in R v Licensing Court of Brisbane; Ex parte Daniell (1920) 28 CLR 23 at 33, the State law ‘still lives, subject to the pressure of the Federal Act — like Jack-in-the-box under his lid’. See also Butler v Attorney-General (Vic) (1961) 106 CLR 268; Western Australia v Commonwealth (Native Title Act Case) (1995) 183 CLR 373, 464–465 (Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ).
[34]Jemena (2011) 244 CLR 508, 525 [42] (the Court).
Several provisions of the relevant Commonwealth Act, the Migration Act 1958 (Cth), should be noted.
Section 4 of the Migration Act is the object section. It provides, so far as presently relevant, as follows:
4 Objects of Act
(1)The object of this Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.
(2)To advance its object, this Act provides for visas permitting non-citizens to enter or remain in Australia and the Parliament intends that this Act be the only source of the right of non-citizens to enter or remain.
…
(4)To advance its object, this Act provides for the removal or deportation from Australia of non-citizens whose presence in Australia is not permitted by this Act.
Section 4AA of the Migration Act is a significant provision which was inserted at the same time as s 197AB, the latter being the section referred to in paragraph 6 of the special case stated. Section 4AA provides:
4AA Detention of minors a last resort
(1)The Parliament affirms as a principle that a minor shall only be detained as a measure of last resort.
(2)For the purposes of sub-section (1), the reference to a minor being detained does not include a reference to a minor residing at a place in accordance with a residence determination.
Of the definitions contained in s 5 of the Migration Act, the following are important:
detain means:
(a) take into immigration detention; or
(b) keep, or cause to be kept, in immigration detention;
and includes taking such action and using such force as are reasonably necessary to do so.
Note: This definition extends to persons covered by residence determinations (see section 197AC).
detainee means a person detained.
Note: This definition extends to persons covered by residence determinations (see section 197AC).
…
immigration detention means:
(a) being in the company of, and restrained by:
(i) an officer; or
(ii)in relation to a particular detainee – another person directed by the Secretary or Australian Border Force Commissioner to accompany and restrain the detainee;
or
(b) being held by, or on behalf of, an officer:
(i) in a detention centre established under this Act; or
(ii)in a prison or remand centre of the Commonwealth, a State or Territory; or
(iii) in a police station or watch house; or
(iv)in relation to a non-citizen who is prevented, under section 249, from leaving a vessel — on that vessel; or
(v)in another place approved by the Minister in writing;
…
Note 1:Subsection 198AD(11) provides that being dealt with under subsection 198AD(3) does not amount to immigration detention.
Note 2:This definition extends to persons covered by residence determinations (see section 197AC).
…
officer means:
(a)an officer of the Department, other than an officer specified by the Minister in writing for the purposes of this paragraph; or
(b)a person who is an officer for the purposes of the Customs Act 1901, other than such an officer specified by the Minister in writing for the purposes of this paragraph; or
(c)a person who is a protective service officer for the purposes of the Australian Federal Police Act 1979, other than such a person specified by the Minister in writing for the purposes of this paragraph; or
(d)a member of the Australian Federal Police or of the police force of a State or an internal Territory; or
(e)a member of the police force of an external Territory; or
(f)a person who is authorised in writing by the Minister to be an officer for the purposes of this Act; or
(g)any person who is included in a class of persons authorised in writing by the Minister to be officers for the purposes of this Act, including a person who becomes a member of the class after the authorisation is given.
…
residence determination has the meaning given by subsection 197AB(1).
Part 2 of the Migration Act is entitled ‘Arrival, presence and departure of persons’. Division 1 is headed ‘Immigration status’. Within that division, subsections 13(1) and 14(1) should be noted:
13 Lawful non-citizens
(1)A non-citizen in the migration zone who holds a visa that is in effect is a lawful non-citizen.
…
14 Unlawful non-citizens
(1)A non-citizen in the migration zone who is not a lawful non-citizen is an unlawful non-citizen.
…
Subdivision A of Division 7 of Part 2 of the Migration Act is comprised of ss 188 – 197. It is entitled ‘Detention of unlawful non-citizens. Subsection 189(1) provides:
189 Detention of unlawful non-citizens
(1)If an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non-citizen, the officer must detain the person.
In later subsections of s 189, the word ‘may’ is used several times in such a way as to indicate, by way of contrast, that the word ‘must’ in s 189(1) imposes an obligation, not a mere power. There is a note to s 189 in the following terms:
Note:See Subdivision B for the Minister’s power to determine that people who are required or permitted by this section to be detained may reside at places not covered by the definition of immigration detention in subsection 5(1).
So far as relevant, s 196 of the Migration Act provides:
196 Duration of detention
(1)An unlawful non-citizen detained under section 189 must be kept in immigration detention until:
(a)he or she is removed from Australia under section 198 or 199; or
(aa)an officer begins to deal with the non-citizen under subsection 198AD(3); or
(b) he or she is deported under section 200; or
(c) he or she is granted a visa.
(2)To avoid doubt, subsection (1) does not prevent the release from immigration detention of a citizen or a lawful non-citizen.
(3)To avoid doubt, subsection (1) prevents the release, even by a court, of an unlawful non-citizen from detention (otherwise than as referred to in paragraph (1)(a), (aa) or (b)) unless the non-citizen has been granted a visa.
…
(6)This section has effect despite any other law.
…
Subdivision B of Division 7 of Part 2 of the Migration Act is of central relevance. It is desirable to set it out in full:
Subdivision B — Residence determinations
197AA Persons to whom Subdivision applies
This Subdivision applies to a person who is required or permitted by section 189 to be detained, or who is in detention under that section.
197ABMinister may determine that person is to reside at a specified place rather than being held in detention centre etc.
(1)If the Minister thinks that it is in the public interest to do so, the Minister may make a determination (a residence determination) to the effect that one or more specified persons to whom this Subdivision applies are to reside at a specified place, instead of being detained at a place covered by the definition of immigration detention in subsection 5(1).
(2) A residence determination must:
(a)specify the person or persons covered by the determination by name, not by description of a class of persons; and
(b)specify the conditions to be complied with by the person or persons covered by the determination.
(3)A residence determination must be made by notice in writing to the person or persons covered by the determination.
197AC Effect of residence determination
Act and regulations apply as if person were in detention in accordance with section 189
(1)While a residence determination is in force, this Act and the regulations apply (subject to subsection (3)) to a person who is covered by the determination and who is residing at the place specified in the determination as if the person were being kept in immigration detention at that place in accordance with section 189.
(2) If:
(a)a person covered by a residence determination is temporarily staying at a place other than the place specified in the determination; and
(b)the person is not breaching any condition specified in the determination by staying there;
then, for the purposes of subsection (1), the person is taken still to be residing at the place specified in the determination.
Certain provisions do not apply to people covered by residence determinations
(3) Subsection (1):
(a)does not apply for the purposes of section 197 or 197A, or any of sections 252AA to 252E; and
(b)does not apply for the purposes of any other provisions of this Act or the regulations that are specified in regulations made for the purposes of this paragraph.
What constitutes release from immigration detention?
(4) If:
(a)a residence determination is in force in relation to a person; and
(b)a provision of this Act requires the person to be released from immigration detention, or this Act no longer requires or permits the person to be detained;
then, at the time when paragraph (b) becomes satisfied, the residence determination, so far as it covers the person, is revoked by force of this subsection and the person is, by that revocation, released from immigration detention.
Note:Because the residence determination is revoked, the person is no longer subject to the conditions specified in the determination.
(5)If a person is released from immigration detention by operation of subsection (4), the Secretary must, as soon as possible, notify the person that he or she has been so released.
Secretary must ensure section 256 complied with
(6)The Secretary must ensure that a person covered by a residence determination is given forms and facilities as and when required by section 256.
197AD Revocation or variation of residence determination
(1)If the Minister thinks that it is in the public interest to do so, the Minister may, at any time, revoke or vary a residence determination in any respect (subject to subsection (2)).
Note 1:If a person covered by a residence determination does not comply with a condition specified in the determination, the Minister may (subject to the public interest test) decide to revoke the determination, or to vary the determination by altering the conditions, whether by omitting or amending one or more existing conditions or by adding one or more additional conditions.
Note 2:If the Minister revokes a residence determination (without making a replacement determination) and a person covered by the determination is a person whom section 189 requires to be detained, the person will then have to be taken into detention at a place that is covered by the definition of immigration detention in subsection 5(1).
(2)Any variation of a residence determination must be such that the determination, as varied, will comply with subsections 197AB(1) and (2).
(3)A revocation or variation of a residence determination must be made by notice in writing to the person or persons covered by the determination.
197AEMinister not under duty to consider whether to exercise powers
The Minister does not have a duty to consider whether to exercise the power to make, vary or revoke a residence determination, whether he or she is requested to do so by any person, or in any other circumstances.
197AF Minister to exercise powers personally
The power to make, vary or revoke a residence determination may only be exercised by the Minister personally.
197AGTabling of information relating to the making of residence determinations
(1)If the Minister makes a residence determination, he or she must cause to be laid before each House of the Parliament a statement that (subject to subsection (2)):
(a)states that the Minister has made a determination under this section; and
(b)sets out the Minister's reasons for making the determination, referring in particular to the Minister's reasons for thinking that the determination is in the public interest.
(2)A statement under subsection (1) in relation to a residence determination is not to include:
(a)the name of any person covered by the determination; or
(b)any information that may identify any person covered by the determination; or
(c)the address, name or location of the place specified in the determination; or
(d)any information that may identify the address, name or location of the place specified in the determination; or
(e)if the Minister thinks that it would not be in the public interest to publish the name of another person connected in any way with the determination—the name of that other person or any information that may identify that other person.
(3)A statement under subsection (1) is to be laid before each House of the Parliament within 15 sitting days of that House after:
(a)if the residence determination is made between 1 January and 30 June (inclusive) in a year—1 July in that year; or
(b)if the residence determination is made between 1 July and 31 December (inclusive) in a year—1 January in the following year.
The Children, Youth and Families Act 2005 (Vic)
As mentioned above, certain amendments to the CYF Act came into operation on 1 March 2016. I will deal with those amendments under the next heading, but first I will refer to the form of the CYF Act as it was in July 2015 when the special case stated was produced.[35]
[35]See Reprint Version No. 055.
Section 1 of the CYF Act set out the main purposes of the Act:
1 Purposes
The main purposes of this Act are—
(a)to provide for community services to support children and families; and
(b)to provide for the protection of children; and
(c)to make provision in relation to children who have been charged with, or who have been found guilty of, offences; and
(d) to continue The Children's Court of Victoria as a specialist court dealing with matters relating to children.
The relevant Division of the Children’s Court of Victoria for this matter is the Family Division: see Part 7.2 of Chapter 7 of the CYF Act.
Of the definitions in s 3 of the CYF Act, as at the time of the referral, the following are worth noting:
care, in relation to a child, means the daily care and control of the child, whether or not involving custody of the child;
…
emergency care means placement in accordance with section 242(5) or 247A(4);
…
out of home care means care of a child by a person other than a parent of the child;
out of home care service means—
(a) a registered out of home care service; or
(b)a community service established under section 44 to provide out of home care;
…
The statutory concepts of guardianship and custody were dealt with by sections 4 and 5, respectively, of the CYF Act as follows.
4Guardianship
A person (including the Secretary) who has, or under this Act is granted, guardianship of a child, 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—
(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.
5Custody
A person (including the Secretary) who has, or under this Act is granted, custody of a child has—
(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.
Part 1.2 of the CYF Act set out general principles to be followed in the administration of the Act. It provided, among other things, that the best interests of the child must always be paramount: s 10(1).
Chapter 4 of the CYF Act was entitled ‘Children in need of protection’. Section 162 provided:
162When is a child in need of protection?
(1)For the purposes of this Act a child is in need of protection if any of the following grounds exist—
(a)the child has been abandoned by his or her parents and after reasonable inquiries—
(i)the parents cannot be found; and
(ii)no other suitable person can be found who is willing and able to care for the child;
(b)the child's parents are dead or incapacitated and there is no other suitable person willing and able to care for the child;
(c)the child has suffered, or is likely to suffer, significant harm as a result of physical injury and the child's parents have not protected, or are unlikely to protect, the child from harm of that type;
(d)the child has suffered, or is likely to suffer, significant harm as a result of sexual abuse and the child's parents have not protected, or are unlikely to protect, the child from harm of that type;
(e)the child has suffered, or is likely to suffer, emotional or psychological harm of such a kind that the child's emotional or intellectual development is, or is likely to be, significantly damaged and the child's parents have not protected, or are unlikely to protect, the child from harm of that type;
(f)the child's physical development or health has been, or is likely to be, significantly harmed and the child's parents have not provided, arranged or allowed the provision of, or are unlikely to provide, arrange or allow the provision of, basic care or effective medical, surgical or other remedial care.
(2)For the purposes of subsections (1)(c) to (1)(f), the harm may be constituted by a single act, omission or circumstance or accumulate through a series of acts, omissions or circumstances.
(3)For the purposes of subsection (1)(c), (d), (e) and (f)—
(a)the Court may find that a future state of affairs is likely even if the Court is not satisfied that the future state of affairs is more likely than not to happen;
(b)the Court may find that a future state of affairs is unlikely even if the Court is not satisfied that the future state of affairs is more unlikely than not to happen.
Protective intervention was dealt with in Part 4.8 of Chapter 4. Division 2 of that Part addressed the action that could be taken by a protective intervener. Within that Division, sections 240, 241 and 242, so far as relevant, provided:
240 Action by protective intervener
(1)If a protective intervener is satisfied on reasonable grounds that a child is in need of protection, he or she may—
(a)serve a notice under section 243 stating that a protection application in respect of the child will be made to the Court; or
(b)with or without a warrant, under section 241, place the child in emergency care or cause another protective intervener to place the child in emergency care pending the hearing of a protection application.
* * * * *
(3)If the procedure set out in subsection (1)(a) or (1)(b) has been taken in respect of a child, a protective intervener must as soon as possible make a protection application to the Court and give a copy of the application to—
(a)the child's parents, unless they cannot be found after reasonable inquiries; and
(b)the child, if he or she is of or above the age of 12 years.
241Protective intervener may place child in need of protection in emergency care
(1)If a protective intervener is satisfied on reasonable grounds that a child is in need of protection and that it is inappropriate to take the procedure set out in section 240(1)(a), he or she may—
(a)without a warrant, place the child in emergency care or cause another protective intervener to place the child in emergency care; or
…
242Actions on placing child in emergency care
…
(2)If a child has been placed in emergency care under section 241, the Court must hear an application for an interim accommodation order in respect of the child as soon as practicable and in any event within one working day after the child was placed in emergency care.
(3)Unless the Court hears an application for an interim accommodation order within 24 hours after the child was placed in emergency care, a bail justice must hear an application for an interim accommodation order in respect of the child as soon as possible within that period of 24 hours.
** * * *
(5)Until an application for an interim accommodation order is made to the Court or a bail justice, a child placed in emergency care under section 241 may only be placed—
(a)in an out of home care service; or
(b)if there is a substantial and immediate risk of harm to the child, in a secure welfare service; or
(c)in other accommodation approved by the Secretary in accordance with the prescribed criteria (if any).
Interim accommodation orders were provided for in Division 5 of Part 4.8. The relevant provisions were as follows:
262Interim accommodation order
(1)The Court may make an interim accommodation order in respect of a child if—
(a)the child has been placed in emergency care by a protective intervener under this Chapter; or
(b)a protection application is filed with the appropriate registrar; or
…
(f)the hearing by the Court of a proceeding in the Family Division (including a proceeding under this section) is adjourned; or
(g)an application for an extension or further extension of the period of an interim accommodation order has been made to the Court under section 267; or
(h)an interim accommodation order or any condition attached to an interim accommodation order has not been complied with; or
(i)an application for a new interim accommodation order has been made to the Court under section 270(1); or
…
(l)a question of law has been reserved by the Family Division under section 533 for the opinion of the Supreme Court.
(2)An application for an interim accommodation order may be made—
(a)by the child or a parent of the child; or
(b)by a protective intervener.
…
263Conditions of interim accommodation order
(1)An interim accommodation order may provide for—
(a)the release of the child pending the hearing, or the resumption of the hearing; or
(b)the release of the child into the care of his or her parent pending the hearing, or the resumption of the hearing; or
(c)the placement of the child with a suitable person or suitable persons pending that hearing, or the resumption of the hearing, and following a report (whether oral or written) from the Secretary on that person's or those persons' suitability; or
(d)the placement of the child in an out of home care service pending that hearing or resumption; or
…
** * * *
…
(7)An interim accommodation order may include any conditions that the Court or bail justice considers should be included in the best interests of the child.
(8)Conditions included in an interim accommodation order may relate to the contact with a parent or other person by the child.
…
264Duration of interim accommodation order
(1)Subject to this section, an interim accommodation order under section 263(1)(a), 263(1)(b), 263(1)(c) or 263(1)(d) remains in force for the period specified in the order and beginning on the day the order is made.
…
266Power of Secretary to transfer child
(1)If an interim accommodation order provides for the placement of a child in an out of home care service or a secure welfare service, the Secretary may from time to time, if he or she believes that it is advisable in the best interests of the child, transfer the child—
(a)from one out of home care service to another out of home care service; or
(b)from one secure welfare service to another secure welfare service.
(2)If the whereabouts of a child are changed under subsection (1), the Secretary must give notice of that change to—
(a)the child's parent, unless a direction has been given under section 265; and
(b)the appropriate registrar.
267Extension of interim accommodation order
(1)Subject to subsection (2), at any time while an interim accommodation order made by the Court is in force an application for an extension or further extension of the period of the order may be made to the Court by a protective intervener.
(2)On an application under subsection (1) the Court may—
(a)in the case of an order of a kind referred to in section 263(1)(a), 263(1)(b), 263(1)(c) or 263(1)(d), extend the order for the period specified in the order and beginning on the day the order is made if it is satisfied that it is in the best interests of the child to do so;
…
(3)The Court may not vary or revoke an interim accommodation order or make a new interim accommodation order on an application under subsection (1).
…
268Application for variation of interim accommodation order
(1)If the Court makes an interim accommodation order in respect of a child, the child or a parent of the child may apply to the Court for variation of the conditions included in the order if—
(a)the applicant was not legally represented at the hearing of the application for the order; or
(b)new facts or circumstances have arisen since the making of the order.
(2)If—
(a)the Court makes an interim accommodation order in respect of a child; and
(b)new facts or circumstances have arisen since the making of the order—
a protective intervener may apply to the Court for variation of the conditions included in the order.
…
Part 4.9 of the CYF Act dealt with the making of protection orders by the Children’s Court. The relevant sections were the following:
274When Court may make order under this Part
The Court may make an order under this Part in respect of a child if the Court finds—
(a)that the child is in need of protection; or
(b)that there is a substantial and irreconcilable difference between the person who has custody of the child and the child to such an extent that the care and control of the child are likely to be seriously disrupted.
275Types of protection order
(1)If the Court makes a finding under section 274 it may make any one of the following protection orders—
(a)an order requiring a person to give an undertaking;
(b)a supervision order;
(c)a custody to third party order;
(d)a supervised custody order;
(e)a custody to Secretary order;
(f)a guardianship to Secretary order;
(g)a long-term guardianship to Secretary order;
(h)an interim protection order.
(2)A protection order may continue in force after the child attains the age of 17 years but ceases to be in force when the child attains the age of 18 years.
…
280Supervision order
(1)A supervision order—
(a)gives the Secretary responsibility for the supervision of the child; and
(b)does not affect the guardianship or custody of the child; and
(c)provides for the child to be placed in the day to day care of one or both of the child's parents.
(2)A supervision order remains in force for the period specified in the order which must either be a period—
(a)not exceeding 12 months; or
(b)exceeding 12 months but not exceeding 2 years, if the Court is satisfied that there are special circumstances which warrant the making of an order for such a period.
(3)If under subsection (2)(b) the Court specifies a period exceeding 12 months for a supervision order to remain in force it must direct the Secretary—
(a)to review the operation of the order before the end of the period of 12 months after the making of the order; and
(b)to notify the Court, the child, the child's parent and such other persons as the Court directs before the end of that period if the Secretary considers that it is in the best interests of the child for the order to continue for the duration of the period specified in the order.
(4)Unless the Secretary makes a notification in accordance with subsection (3) the supervision order ceases to be in force at the end of the period of 12 months after it was made.
281Supervision order may impose conditions
(1)A supervision order may include conditions to be observed by—
(a)the child in respect of whom it is made; or
(b)a parent of the child—
being conditions that the court considers to be in the best interests of the child.
(2)A supervision order must not include any condition as to where the child lives, unless the condition relates to—
(a)the child living with a specified parent; or
(b)the child living as far as possible for an equal amount of time with each parent if the parents do not live in the same household.
282Powers of Secretary under supervision order
(1)If the Court makes a supervision order in respect of a child, the parent must permit the Secretary to visit the child at his or her place of residence and to carry out the duties of the Secretary under the order.
(2)The Secretary may, by notice in the prescribed form, give to—
(a)the child in respect of whom a supervision order is made; or
(b)a parent of the child—
any direction that the Secretary considers to be in the best interests of the child and that is both reasonable and lawful.
The succeeding provisions of Part 4.9 of the CYF Act dealt with the other types of protection orders listed in s 275(1) of the Act. The types of protection orders available conferred varying degrees of control over the child. At one end of the spectrum were undertakings and supervision orders, which did not affect the guardianship or custody of the child. At the other end of the spectrum were custody and guardianship orders, which could confer the right to daily care and control of the child on the person or persons named in the order.[36] As mentioned above, the type of protection order that the Secretary ultimately intended to seek in the Children’s Court proceeding was a 12 month supervision order under s 280 of the CYF Act, under which AA would have the guardianship and custody, and the day to day care, of AB, but with the Secretary having responsibility for the supervision of AB.
[36]Written submissions of the Secretary dated 26 October 2015 [24]–[25].
The March 2016 amendments to the CYF Act
The CYF Act was amended by the Children, Youth and Families Amendment (Permanent Care and Other Matters) Act 2014 (‘the amending Act’) which, so far as relevant, commenced operation on 1 March 2016. The amending Act provides, in s 1, that one of its main purposes is to amend the CYF Act ‘to make further provision for the protection and permanent care of children’ and ‘to further improve the operation of that Act’.[37] The amendments affected the terms of some of the provisions set out above. However, as already mentioned, I accept the parties’ submission that the amendments do not significantly diminish the utility of addressing the special case stated.
[37]CYF Act, sub-ss 1(a)(i) and (iv).
The amending Act repealed the definitions of ‘custody’ and ‘guardianship’ formerly contained in the CYF Act,[38] and introduced a new defined term ‘parental responsibility’. This term is defined in the following manner:
parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authority which, by law or custom, parents have in relation to children;
[38]Sections 4 and 5 of the previous version of the CYF Act were repealed by ss 4(1) and 5 of the amending Act.
Consequential amendments were made to other provisions of the CYF Act to reflect this new concept. For example, the definition of ‘care’ in s 3 of the CYF Act is now as follows:
care, in relation to a child, means the daily care and control of the child, whether or not involving parental responsibility for the child;
The provisions dealing with interim accommodation orders were affected in minor ways by the amending Act. Section 262 of the CYF Act was amended by s 13 of the amending Act, but, so far as presently relevant, the only notable change is that a new subsection (5A) was introduced. It provides:
(5A)Despite anything to the contrary in this section, an interim accommodation order must not be made in respect of a child if the Court is satisfied that —
(a)a protection order could be made in respect of the child under Part 4.9; or
(b)a permanent care order could be made in respect of the child under section 319.
Section 263, which gives the Children’s Court the power to impose conditions on an interim accommodation order, was also amended, but only in respect of children receiving disability services.
The protection order provisions were amended by Division 4 of the amending Act. The only change to s 274, which, as shown above, specifies when the Children’s Court may make a protection order, was to substitute, for the expression ‘custody of’, the expression ‘care of’. Similar consequential amendments were made to s 276 (also shown above). More extensive amendments were made to s 275, the section which sets out the types of protection order available. That section now reads as follows:
275Types of protection order
(1)If the Court makes a finding under section 274 it may make any one of the following protection orders—
(a)an order requiring a person to give an undertaking;
(b)a family preservation order;
(c)a family reunification order;
(d)a care by Secretary order;
(e)a long-term care order.
** * * *
(2)A protection order may continue in force after the child attains the age of 17 years but ceases to be in force when the child attains the age of 18 years.
(3)A care by Secretary order or a long-term care order may be made in relation to a child who is under the age of 18 years but ceases to be in force when the child attains the age of 18 years or marries, whichever happens first.
In effect, the ‘custody to third party order’, the ‘supervised custody order’ and the ‘interim protection order’ have each been abolished, while the remaining types of protection orders, except the order requiring a person to give an undertaking, have been modified in minor ways and renamed. The former ‘supervision order’ has been renamed as a ‘family preservation order’; a ‘custody to Secretary order’ is now called a ‘family reunification order’; a ‘guardianship to Secretary order’ has become a ‘care by Secretary order’; and a ‘long-term guardianship to Secretary order’ is now a ‘long-term care order’.
In relation to the change from a ‘supervision order’ (being the type of order which the Secretary foreshadowed seeking in this case) to a ‘family preservation order’, ss 280, 281 and 282 have been amended to pick up the new nomenclature and to emphasise[39] the desirability of promoting the continuing care of the child by a parent of the child.
[39]See now s 281(1A)(c) of the CYF Act.
Otherwise, the provisions relating to what used to be called ‘supervision orders’ have not been relevantly amended.
Accordingly, and to align with the approach taken by the parties, I will refer hereafter, except where indicated to the contrary, to the provisions of the CYF Act as they stood at the time of the referral from the Children’s Court.
The Secretary’s submissions on the reserved questions
As mentioned above, the Secretary now submits that ss 241, 267 and 280 of the CYF Act are valid in their application to AB; that they are not inconsistent with the Migration Act nor with the residence determination made by the Commonwealth Minister for Immigration and Border Protection (‘the Minister’) in respect of AA and AB; and that, accordingly, each of the questions reserved should be answered in the negative.[40]
[40]Written submissions of the Secretary dated 26 October 2015 [4]; Oral submissions of the Secretary, passim.
Consistently with the legal principles and authorities referred to above,[41] the Secretary says that the starting point for determining whether an inconsistency arises between a Commonwealth Act and a State Act, so as to engage the operation of s 109 of the Constitution, is the construction of the two Acts.
[41]See, in particular, Momcilovic (2011) 245 CLR 1, 111 [242]; Bell Group NV v Western Australia (2016) 331 ALR 408, 422 [52].
The Secretary first addresses the Migration Act, which is described as drawing a dichotomy between lawful and unlawful non-citizens. Subject to the making of a residence determination in favour of a particular unlawful non-citizen, ss 189(1) and 196(1) of the Migration Act require unlawful non-citizens to be detained and kept in immigration detention until the happening of an event stipulated in s 196(1). The Secretary notes that, notwithstanding the terms of ss 189(1) and 196(1) of the Migration Act, the Minister has the power to make a residence determination to the effect that an unlawful non-citizen is to ‘reside at a specified place, instead of being detained at a place covered by the definition of immigration detention in subsection 5(1)’;[42] and that the effect of a residence determination is that the Act and the regulations will apply to a person covered by the residence determination ‘as if’ that person were being kept in immigration detention at that place in accordance with s 189 of the Act. The Secretary submits: ‘By the use of the words “as if”, s 197AC(1) introduces a fiction or a hypothetical contrast. It deems something to be what it is not or compares it with what it is not.[43] It treats something which is plainly not detention as if it were detention’.
[42]Migration Act, ss 197AA and 197AB.
[43]Citing Re Macks; Ex parte Saint (2000) 204 CLR 158, 203 [115] (McHugh J) (‘Re Macks’).
In the Secretary’s written submissions,[44] it is put that s 197AC does not give the Minister control over the daily life of the non-citizen beyond specifying a place where the person is to reside; and that conditions imposed under s 197AB must be directed to that purpose. However, at the oral hearing, the Solicitor-General (for the Secretary) said that he did not press the submission that the only lawful conditions that could be attached to a residence determination were conditions that related to where the person was to reside. He did not press this submission, he said, because the Court ‘doesn’t need to decide it’.[45]
[44]Written submissions of the Secretary dated 26 October 2015 [9].
[45]Transcript 41–42.
The Secretary says in his written submissions that there are two notable aspects to the phrase ‘residing at the place specified in the determination’ contained in s 197AC:[46]
(1)First, the concepts of residing and residence are sensitive to context. They connote a place where a person lives for settled purposes as part of the regular order of his or her life.[47] As a matter of ordinary language, residing at one place is not inconsistent with staying, including for extended periods, at another. The duration and comparative times spent in different places will be of great importance in determining whether a person resides at a particular place, but they are not necessarily decisive;[48] and
(2)Second, there is an express contrast drawn in s 197AC(2) between residing at the place specified and temporarily staying at another place.
At the hearing, counsel for the Attorney-General departed somewhat from the submissions relating to question 1 summarised above. He allowed that difficult questions of construction were involved and that, on one view, it would not have been open to any officer to detain AB even during the period between Friday 13 March 2015 and Tuesday 17 March 2015. Ultimately, counsel submitted that the Court need not and ought not determine those particular issues. I will return to this in due course.
In relation to Question 2, which concerns the proposed extension of the fifth interim accommodation order, the Attorney-General’s written submissions note that the fifth interim accommodation order was made under ss 262(1)(b) and 263(1)(b) of the CYF Act, and that it was an order to the effect that the Child was to be released into the care of her mother pending the hearing or the resumption of the hearing of the application for a protection order.[123] The submission further notes that the Department’s approval to stay temporarily at the Bell Post Hill address (where AA was then staying)[124] was sought (on behalf of AB) by an organisation that provided services for AB; and that on 10 July 2015 the Department gave that approval.
[123]The written submissions say, at [35], that the Child was to be released into the care of her mother ‘at’ an address in Bell Post Hill. However, it was later clarified that the reference in the fifth interim accommodation order to the address in Bell Post Hill was not a reference to a place where the Child was to live, but rather was included merely to identify the Mother. This became common ground at the oral hearing.
[124]It was also common ground at the hearing that although AA was at this time apparently staying at an address different from the Hamlyn Heights address stated in the residence determination, there was no basis for an inference or a finding that, in doing so, she was in breach of the residence determination.
The Attorney-General’s written submissions with respect to Question 2 continue, and conclude, as follows:[125]
·Under s 267(2)(a) of the CYF Act, the Children’s Court has power to extend the 5th interim accommodation [order] while it is in force. While the CYF Act does not expressly limit the duration of such an extension order by reference to any defined period of time, such an extension order could only be made as an ‘interim’ order in the context of a protection application leading to an ultimate disposition under Part 4.9 of the CYF Act.[126] It is a question of fact whether an unlawful non-citizen is ‘temporarily staying’ at another place, or is staying at that place for so long that it ceases to be apt to describe the stay as ‘temporary’. However, having regard to the purpose and nature of an extension order under s 267(2)(a), it is reasonable to conclude that such an order will necessarily operate only on a ‘temporary’ basis.
·Having regard to the submissions outlined above, in the event that the Children’s Court made an order under s 267(2)(a) of the CYF Act extending the 5th interim accommodation order, and assuming that the Department continued to approve the stay at the Bell Post Hill address, the Child would continue to be deemed to be being kept in immigration detention in accordance with s 189 of the Act. That would follow because the conditions to the enlivenment of s 197AC(2) would be engaged: the Child would be staying temporarily at the address in Bell Post Hill in accordance with the extension order, and the Child would not be breaching any condition by doing so.
·Of course, even if s 197AC(2) was not engaged, no inconsistency between s 267 of the CYF Act and the Migration Act would arise unless and until an officer actually exercised the power under s 189 of the Migration Act to take the Child into ‘immigration detention’ at a place other than the address in Bell Post Hill. That may never occur. As noted above, it would, for example, be open to the Minister to ‘intercept’ the performance of any power by an officer to detain by varying the Residence Determination so as to specify the Bell Post Hill address. Further, even if an officer did exercise power under s 189 to take the Child into ‘immigration detention’, that would not necessarily have the consequence that the Child could no longer live with the Mother at the Bell Post Hill address consistently with any extension order, because the Minister could exercise power to devise a form of immigration detention that was consistent with that order, including by approving the Bell Post Hill address to be an alternative place of detention.[127]
·The above examples demonstrate that, at the level of the two Acts, there is no inconsistency between s 267 (read with ss 262 and 263) of the CYF Act and the Migration Act. That conclusion is sufficient to allow both Question 2(a) and (b) to be answered ‘No’.
[125]Written submissions of the Attorney-General of the Commonwealth (intervening) dated 16 November 2015 [36]–[39] (footnotes in original but renumbered).
[126]It being an extension of an order made pending the hearing or resumption of the hearing: CYF Act s 263(1)(b).
[127]See paragraph (b)(v) of the definition of ‘immigration detention’ in s 5 of the Migration Act.
Turning to Question 3, which relates to the foreshadowed application for a supervision order under s 280 of the CYF Act, the Attorney-General’s written submissions, in common with those of the Secretary and AB, note that a supervision order cannot include any condition as to where the Child is to live, unless the condition relates to living with a specified parent (s 281(2)); and that a supervision order would remain in force for no longer than 12 months (or 2 years in special circumstances (s 280(2)).
As to the latter point, the Attorney-General submits[128] that, notwithstanding the Secretary’s invitation for it to do so, the Court should not decide whether protection orders with a duration of 12 months necessarily involve a disposition that is ‘temporary’ within the meaning of s 197AC(2) of the Migration Act. According to the Attorney-General, such a question would need to be considered by reference to all the circumstances of a relevant case.
[128]Written submissions of the Attorney-General of the Commonwealth (intervening) dated 16 November 2015 [44].
The Attorney-General’s written submissions proceed to assert that, in any event, the issue does not arise in this proceeding, because:
· a supervision order cannot require a child to ‘live’ (ie ‘stay’) at any particular place; and
· while a supervision order might require AB to live with her mother, nevertheless, because her mother is a unlawful non-citizen who is subject to the same residence determination as AB, such a supervision order could not operate to require AB to reside at a place that might produce inconsistency with the Migration Act.[129]
[129]However, as already mentioned, at the oral hearing the Attorney-General moved away from any significant reliance on the existence or the terms or conditions of the residence determination as an explanation for the asserted absence of constitutional inconsistency.
It follows, according to the Attorney-General’s written submissions, that the making of any supervision order by the Children’s Court under s 280 of the CYF Act could not, on the facts known to this Court, give rise to any conflict with the Migration Act; and that the answer to both Question 3(a) and Question 3(b) is ‘No’.
Under the heading ‘Conclusion’, the Attorney-General’s written submission urge a negative answer to each of the reserved questions. They then add the following final comments:[130]
…The Migration Act establishes various mechanisms by which any duty of an officer to detain the Child in immigration detention may be avoided or intercepted, or in any event implemented consistently with an order of the Children’s Court under ss 267 or 280 of the CYF Act.
Consistently with the above submissions, the Commonwealth has twice written to the Registrar of the Children’s Court in relation to the proceeding in that Court indicating that it is willing and able to assist the Court, and to work together with the Secretary, to ensure that detention under the Migration Act is implemented consistently with any decisions and orders under the CYF Act in relation to the protection of the Child. The Commonwealth intends to continue to work cooperatively with the relevant authorities to ensure that this is achieved.
[130]Written submissions of the Attorney-General of the Commonwealth (intervening) dated 16 November 2015 [47]–[48] (footnote omitted).
Consideration of the reserved questions
I agree with the active parties and the Attorney-General for the Commonwealth that each of the reserved questions should be answered in the negative.
In arguing towards that result, both the Secretary and AB dealt extensively with the existence and the terms and conditions of the residence determination. That is not surprising. The residence determination is mentioned in all three of the reserved questions. And, until the last minute, the Commonwealth itself was asserting that close attention needed to be given to the terms of the residence determination. Indeed, as mentioned above, it seems that the concerns originally felt by the Secretary in this matter were reflected in the letter dated 9 July 2015 from the Commonwealth Department of Immigration and Border Protection to the Children’s Court in which the author refers to the residence determination and then says that ‘there is a question as to the Court’s power to make an order requiring [AB] to reside at an address other than that specified in the residence determination’. Thereafter, all the written submissions filed, including those filed on behalf of the Commonwealth Attorney-General, dealt in detail with the matter of reconciling the steps taken in the Victorian sphere for the protection of AB, on the one hand, and the existence and the terms of the residence determination made in the Commonwealth sphere, on the other. Nevertheless, I agree with the oral submissions made at the final hearing by counsel for the Attorney-General to the effect that negative answers to the questions reserved can be given without addressing the terms and conditions of the residence determination.[131] I further agree with counsel for the Attorney-General that it is preferable, in the interests of the parties and of the Children’s Court, and in the public interest, not to tie any such negative answers to the existence or the terms and conditions of the residence determination.[132]
[131]Transcript 97–100.
[132]Ibid 97–101, 120.
As counsel for the Attorney-General pointed out,[133] while Question 1 of the reserved questions is a single question which describes AB as a child who ‘was an unlawful non-citizen and the subject of the residence determination’ (emphasis added), Questions 2 and 3 are differently framed in that regard. Each has two subparagraphs, (a) and (b). In both cases, subparagraph (a) refers to AB as ‘an unlawful non-citizen’, whereas subparagraph (b) refers to her as ‘the subject of the residence determination’. In both cases, the word ‘or’, not the word ‘and’, divides the subparagraphs. At first sight, and having regard to the terms of Question 1, it might be thought that the use of ‘or’ was a mistake, and that ‘and’ was intended. After all, a person cannot be the subject of a residence determination unless that person is an unlawful non-citizen. However, the converse is not true. A person may well be an unlawful non-citizen without being the subject of a residence determination. Moreover, if Questions 2 and 3 are read literally, a better opportunity is presented to provide answers that bear upon unlawful non-citizen children generally, thereby giving a greater level of comfort and security to the parties and to the Children’s Court, as counsel for the Attorney-General submitted.[134] As he further submitted,[135] doing this has the added benefit of circumventing what is arguably an ambiguity within the reserved questions themselves, namely whether the references therein to AB as a person ‘the subject of the residence determination’ are merely references to her as a person about whom a residence determination has been made as a matter of fact or, rather, are references to her as a person who actually receives the deeming benefit of a residence determination pursuant to s 197AC(1) of the Migration Act.
[133]Ibid 98–101.
[134]Ibid 97–98, 120.
[135]Ibid 98.
It is true that the only hint or suggestion of s 109 inconsistency in this case lies in the fact that, in consequence of steps taken under State law, AB stopped being at the address specified in the residence determination, and in the fact that the same situation may continue under the proposed future orders of the Children’s Court.
However, as is common ground, the only possible kind of s 109 inconsistency that could arise in a case like the present is operational inconsistency. For the reasons articulated by the Secretary and by AB, it is plain beyond argument that ‘covering the field’ inconsistency is not involved. Nor is there any ‘direct inconsistency’. That is because, as all sides agree, the relevant statutory provisions are not ‘self-executing’ but, rather, are ‘facultative’ in nature. So far as their relevant substance is concerned, the statutory provisions merely confer powers and duties on public officials and courts. As the Secretary submits, ss 197AB and 197AC of the Migration Act provide a ‘facility’ that may enable an unlawful non-citizen to live in the community, but do not impose any obligation on an unlawful non-citizen to do so. Moreover, a residence determination made under those sections is not, in itself, a ‘law’ within the meaning of s 109 of the Constitution. It is not a legislative instrument. As the Attorney-General submitted orally,[136] a residence determination is, rather, an administrative or executive instrument. Hence, as all sides now agree, the residence determination in question does not impose any enforceable legal obligations on AB at all. In particular, it does not legally oblige her to reside at the specified address. As the Attorney-General submitted, if a person covered by a residence determination ceases to reside at the place specified in the residence determination, the person has not breached an instruction. At most, the person may have ‘abandoned a benefit’.[137]
[136]Ibid 107, 122–123.
[137]Ibid 108–109, 121.
At the hearing, counsel for the Attorney-General also submitted,[138] and I accept, that, even in relation to a child in ‘full’ detention in an immigration detention centre, there would be no ‘direct’ inconsistency between the relevant provisions of the Migration Act and those of the CYF Act, and there would not necessarily be any ‘operational’ inconsistency either. The position, then, must be all the stronger in relation to a person in respect of whom a residence determination is in operation.
[138]Ibid 99–100.
As already indicated, I accept the legal submission made on behalf of the Attorney-General of the Commonwealth[139] to the effect that it is only if and when a Commonwealth authority exercises power under its law, and the operation of the State law would impair, alter or detract from the exercise of that power, that an ‘operational inconsistency’ between the State law and the Commonwealth law will arise. In other words, there is what the Attorney-General described as a ‘critical temporal element’[140] to be considered in determining whether any inconsistency has arisen. At the final hearing, it was emphasised by the Attorney-General, and I accept, that the stage at which inconsistency might arise had not been reached in this case merely as a result of the making of the residence determination.[141]
[139]See [27] above.
[140]Transcript 85. See also at 95–96, 106–108.
[141]Ibid 105–108, 120–121.
Plainly, the mere existence of the residence determination itself is not inconsistent, in the relevant sense, with any of the steps taken so far or proposed to be taken under the CYF Act. To the contrary, the fact that AB has been living and continues to live in the community pursuant to the residence determination has, if anything, allowed for greater flexibility in the taking of practical measures by the Victorian authorities to protect her, and has thus rendered the prospect of ‘operational inconsistency’ all the more remote.
It is true that, theoretically, a person in AB’s position could be returned to detention if she actually ceased to ‘reside’ at the place specified in the residence determination and she could not benefit from the deeming effect of s 197AC(2) in relation to ‘temporarily staying at another place’ (because she was in breach of a condition of the residence determination in staying at that other place). But, as the Attorney-General submitted at the final hearing, the beauty of the analysis now urged by him is that, generally speaking, neither the Children’s Court nor any of the parties involved in a case like the present will need to tackle the difficult legal and factual issues involved in determining whether, if particular steps are taken under the CYF Act, the child in question will or will not be ‘residing’ (within the meaning of s 197AC(1) of the Migration Act) at the specified place or whether the child will or will not be in breach of the applicable residence determination. The arguments advanced in the present case illustrate how difficult such issues may be. For example, is the Secretary correct to concede that, if final orders made by the Children’s Court would be inconsistent with the residence determination, the validity of the interim orders would be imperilled? Is the Secretary correct in submitting that the ‘freedoms’ to be accorded to a person covered by a residence determination are such as to restrict the power of the Commonwealth Minister to place constraints on the activities of the person in the community?[142] What does condition 1(b) of this particular residence determination mean?[143] Is AB correct in submitting that condition 1(b) must be read down insofar as it would require ‘prior approval’ for what is said to be already permitted under s 197AC, namely staying temporarily at some other place? Can condition 1(b) be breached by an involuntary move away from the specified place? Is that the import of the expression ‘if you wish’ in the condition? Does it matter whether the child is too young to develop a ‘wish’ to temporarily stay at another address? Is the Secretary correct in submitting that a move caused by compulsory legal process, as in this case, or by exigencies such as fire or the condemnation of the relevant premises, could not breach condition 1(b)? In any event, to avoid a breach in relation to a temporary stay elsewhere, is it enough to seek prior approval for it? Or does the condition imply that prior approval must be given by the Commonwealth department before any temporary stay at another address may begin? Was prior approval in fact sought (or given) in the particular case? To what extent, and from what point of time, is an approval that was given after the commencement of a ‘temporary stay’ effective?[144] What will constitute staying at a particular place ‘temporarily’ within the meaning and for the purposes of s 197AC(2)? Does s 197AC(2) of the Migration Act imply that the ‘deeming’ benefits of s 197AC(1) are lost to a person where the person breaches a condition of the determination by temporarily staying at a place other than the place specified in the determination? (In other words, does s 197AC(2) work a ‘reverse deeming’?) Or, may such a person still validly resist re-detention on the basis that the person was still actually ‘residing’ at the specified place?
[142]But see Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1, esp at 26 (Brennan, Deane and Dawson JJ) and the cases cited at fn 54 on that page, 71 (McHugh J, who dissented in part but not in this respect). Compare Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219, 231 [25].
[143]The conditions of the residence determination (including condition 1(b)) are mainly expressed in informal language. There is nothing before the Court to indicate that the terms or the conditions of this determination are in standard form. As already mentioned, residence determinations are administrative or executive instruments that may vary from case to case.
[144]At least there seems to be agreement in this case that an ‘after the fact’ approval will be effective from no later than the time that it is given.
In the end, I understood all sides to agree that if I were to accept the submissions ultimately advanced by the Attorney-General, then it would be unnecessary and undesirable for the Court to rule on the other issues that were debated in the case, such as the issues just catalogued. I share that view. In any event, insofar as those issues constitute questions of fact or of mixed fact and law, it might not have been possible, in any event, for the Court to resolve them in a proceeding of the present kind.
The Attorney-General’s proposition that the existence of the residence determination is not essential to the provision of negative answers to the questions reserved, and his further proposition that it is preferable not to tie such answers to the residence determination, are strongly supported by Subramaniam,[145] a case cited on all sides and heavily emphasised by the Attorney-General in his oral submissions.[146]
[145](2012) 83 NSWLR 171.
[146]Transcript 100–101, 117–120.
In Subramaniam, the plaintiff was an unlawful non-citizen who was being held in ‘full’ immigration detention in a detention centre. The Mental Health Review Tribunal of New South Wales decided that the plaintiff was a mentally ill person and should be the subject of a community treatment order pursuant to s 51 of the Mental Health Act 2007 (NSW) (‘the Mental Health Act’). The order specified, pursuant to s 53(3)(b) of the Mental Health Act, that a local mental health facility was capable of implementing the treatment plan attached to the order, and that it should do so in conjunction with the provider of medical services at the detention centre. Section 57 of the Mental Health Act provided that a mentally ill person who was the subject of a community treatment order must comply with the order and be present at the times and places specified in the treatment plan to receive the specified medication, therapy, counselling, management, rehabilitation and other services. The plaintiff, who did not wish to be treated for his perceived mental illness, challenged the validity and authority of the community treatment order on a number of grounds, including by reference to s 109 of the Constitution. As to that ground, Pembroke J held that, although some provisions of the Mental Health Act, including s 51(1) of that Act, in their practical application might produce an operational inconsistency with the Migration Act, those provisions themselves were not rendered invalid under s 109 of the Constitution.
Having held that there could be no direct inconsistency as between the relevant provisions of the Mental Health Act and those of the Migration Act, Pembroke J went on to say, so far as presently relevant:[147]
[147]Subramaniam (2012) 83 NSWLR 171, 183–186 [50]–[60] (emphasis in original).
Nonetheless, depending on the terms of a community treatment order, and the particular circumstances, an operational inconsistency may arise. That would be so if the community treatment order required, by the terms of the treatment plan, that an unlawful non-citizen detained under s 189 of the Migration Act (Cth) be treated otherwise than while in immigration detention. In that event, the requirement of s 57(1) that ‘[t]he affected person must comply with the community treatment order’ would be directly inconsistent with the Migration Act (Cth). It would run counter to the obligations and requirements for detention specified in s 189(1) and s 196 of the Migration Act (Cth). In such a case however, for the reasons explained in AMS v AIF,[148] to which I referred in [44] above, s 51 of the Mental Health Act would be construed as not authorising the making of such a community treatment order.
Similarly, while a community treatment order may not on its face disclose any operational inconsistency with the Migration Act (Cth), the exercise of powers under the Migration Act (Cth) may give rise to an operational inconsistency. Officers under the Migration Act (Cth) may, for example, exercise a power to keep an unlawful non-citizen in detention at a particular location or move an unlawful non-citizen from detention at a particular location to another. Similarly, steps may be taken under the Migration Act (Cth) to remove an unlawful non-citizen from Australia under s 198 or s 199, or to deport an unlawful non-citizen under s 200. To the extent that the unlawful non-citizen is subject to these powers and their exercise is inconsistent with his or her compliance with a community treatment order, there is an operational inconsistency between the powers exercised under the Migration Act (Cth) and s 57(1) of the Mental Health Act. In those events, the former must prevail.
…
On the other hand, the exercise of powers under the Migration Act (Cth) may mean that what would otherwise be an operational inconsistency does not occur. For example, if a community treatment order required an unlawful non-citizen to attend at a certain time and place each week, an inconsistency might occur if the effect of attendance were to cause the person not to be in immigration detention. However the possibility of inconsistency would be removed if certain steps were taken under the Migration Act (Cth), including by permitting the person’s attendance in the company of and restrained by an officer. Similarly, the Minister might approve in writing the place and the person’s attendance in the company of an officer. Further still, the Minister might obviate a potential inconsistency by making a ‘residence determination’ pursuant to s 197AB.
The breach provisions
The plaintiff’s submissions focus on the ‘breach’ provisions of the Mental Health Act. They are set out in ss 58–64. It is no doubt true that the operation of aspects of those provisions may be restricted by the application of the Migration Act (Cth). In particular, the ability of police to exercise the power in s 59 to take a person the subject of a ‘breach order’ to a mental health facility, and the detention of the person at the facility pursuant to s 60 or s 64, may not be possible in some circumstances. However, for the reasons that I have explained, and on which I elaborate below, this does not lead to the invalidity of s 51 of the Mental Health Act.
That is so because the breach provisions themselves are not rendered invalid. Rather, it is merely the operation of those provisions in certain respects that may be ineffective. For instance, there is no difficulty giving effect to the breach provisions if their effect is not to remove an unlawful non-citizen from immigration detention. That may be achieved by the involvement of officers under the Migration Act (Cth), which includes members of the New South Wales Police, and the approval of the mental health facility as a place of immigration detention. Accordingly, any inconsistency concerning the breach provisions is, as with other provisions of the Mental Health Act, an operational one.
Additionally, even if aspects of the enforcement of a community treatment order are not possible because of operational inconsistency, it does not follow that the provisions of the Mental Health Act that provide for the making and the effect of a community treatment order are invalid. The Act itself contemplates that, in some cases, there may be difficulties with enforcement. Thus, s 59(1) provides that ‘[a] police officer to whose notice a breach order is brought must, if practicable’ (emphasis added), take a person to a mental health facility.
…
[148](1999) 199 CLR 160, 176 [37] (footnote added).
Section 51
Apart from an attack on the breach provisions, the only inconsistency directly involving s 51 of the Mental Health Act identified in the plaintiff’s submissions is that it is said that there is an ‘assumption’ underlying s 51 having regard to the terms of s 53. The assumption is said to be that a person for whom treatment is prescribed by a community treatment order will be in a position to comply with it for a fixed period of time not to exceed 12 months. This is said to be at odds with s 196 of the Migration Act (Cth) because the period for which an unlawful non-citizen may be detained is not fixed and may be substantially shorter than 12 months.
Any such assumption underlying s 51, if it exists, does not demonstrate direct inconsistency with the Migration Act (Cth). At most, the operation of the Migration Act (Cth) in the particular circumstances may falsify any such assumption. The mere fact of any such assumption does not demonstrate that the State legislation alters, impairs or detracts from the Migration Act (Cth).
For present purposes, there is a clear analogy between the provisions of the Mental Health Act (NSW) under consideration in Subramaniam and the relevant provisions of the CYF Act. Of course, the provisions of the Migration Act under consideration in Subramaniam were essentially the same as those under consideration in this case. In Subramaniam, it was held that the provisions in question of the Mental Health Act were not rendered invalid by the Migration Act in relation to the plaintiff, even though he was an unlawful non-citizen being held in ‘full’ immigration detention. If the Subramaniam approach is correct, then, in constitutional terms, it matters little or nothing whether steps taken under the CYF Act in relation to AB might expose her to the possibility of being in breach of the residence determination and thus to the risk[149] of being transferred back into ‘full’ immigration detention. Moreover, Pembroke J referred to and relied upon the various options available to the Commonwealth under the Migration Act to facilitate the proposed treatment by the New South Wales authorities of the plaintiff’s perceived mental illness. Before me, counsel for the Attorney-General appropriately emphasised the undoubted flexibility of those statutory options, referring to the breadth of the definitions of ‘detain’, ‘immigration detention’ and ‘officer’, and to the option of amending the conditions of a residence determination, among several other things. And, of course, there is also much flexibility in the statutory options available to the Victorian authorities and the Children’s Court under the CYF Act, as AB submitted. Counsel for the Attorney-General informed me[150] that the Commonwealth was represented as a party in Subramaniam and that the reasoning and the conclusions of Pembroke J with respect to the suggestions of s 109 inconsistency were generally in accordance with the submissions made on behalf of the Commonwealth in that case.[151] The Attorney-General invites me to follow and apply the reasoning of Pembroke J. In my view, it is entirely appropriate that I should do so.
[149]Being, in any event, in the circumstances of this case, no more than a theoretical risk.
[150]Transcript 101.
[151]Subject only to the minor qualification that his Honour’s observation to the effect that there might be operational inconsistency where an order required that a person be treated ‘otherwise than while in immigration detention’ should be understood as meaning that there might be operational inconsistency where an order required that the person be treated otherwise than while in any form of immigration detention: Transcript 118–119.
Conclusion
The relevant laws of this State are not inconsistent, for the purposes of s 109 of the Constitution, with those of the Commonwealth. Hence, the provisions of the CYF Act referred to in the reserved questions of law are not invalid pursuant to s 109 of the Constitution.
As to Question 1 in particular, s 241 of the CYF Act is not invalid to the extent inquired after, in short because there is nothing in the Migration Act inconsistent with s 241 itself and because, so far as action was taken by the Secretary’s delegate to place AB in emergency care pursuant to s 241, the Commonwealth authorities took no step to interfere with that action. Hence there was and is no ‘operational inconsistency’ vis-à-vis the administration of the Migration Act. It is unnecessary to decide whether there are other reasons why s 241 is not invalid to the extent inquired after.
As to Question 2, s 267 of the CYF Act (when read with ss 262 and 263 of the CYF Act) is not invalid to the extent inquired after, in short because, once again, there is nothing in the Migration Act inconsistent with s 267 (as so read) itself, and because the power of the Children’s Court to make an order extending the fifth interim accommodation order is completely unaffected by the fact that AB is an unlawful non-citizen and completely unaffected[152] by the fact that she is ‘the subject of the residence determination’.[153] Nothing in the material before the Court gives the slightest indication that there is likely to be any clash between an order for the extension of the fifth interim accommodation order and the administration of the Migration Act in relation to AB. Nor is there any basis for considering that the putting into effect of an extension of the fifth interim accommodation order would or might involve ‘operational inconsistency’ vis-à-vis the administration of that Act. It is unnecessary to decide whether there are other reasons why s 267 of the CYF Act (read with ss 262 and 263) is not invalid to the extent inquired after.
[152]Compare the passage referred to in [10] and [143] from the letter dated 9 July 2015 from the Commonwealth Department of Immigration and Border Protection to the Children’s Court.
[153]No matter how the expression ‘the subject of the residence determination’ should be interpreted: see [144] above.
As to Question 3, s 280 of the CYF Act is not invalid to the extent inquired after, in short because, yet again, there is nothing in the Migration Act inconsistent with s 280 and because the power of the Children’s Court to make a supervision order (or, now, a family preservation order) is completely unaffected by the fact that AB is an unlawful non-citizen and completely unaffected[154] by the fact that she is ‘the subject of the residence determination’. Yet again, there is nothing in the material before the Court to give the slightest indication that there is likely to be any clash between the making of a supervision order (or, now, a family preservation order) in respect of AB and the administration of the Migration Act in relation to AB. Nor is there any basis for considering that the putting into effect of a supervision order/family preservation order in respect of AB would or might involve ‘operational inconsistency’. It is unnecessary to decide whether other reasons lead to the same result.
[154]As above, compare the passage referred to [10] in [143] from the letter dated 9 July 2015 from the Commonwealth Department of Immigration and Border Protection to the Children’s Court.
Costs: Indemnity certificates
At the hearing, there were submissions from the parties as to the appropriate order that should be made in respect of the costs in this proceeding. Counsel for AA and AB each made applications for the grant of an indemnity certificate in their favour pursuant to s 19 of the Appeal Costs Act 1998 (‘the Appeal Costs Act’).[155] In the alternative, AB submitted that, if no indemnity certificate were granted in favour of AB, her costs ought be paid by the Secretary.
[155]Transcript 55, 77–79, 156.
Section 19 of the Appeal Costs Act relevantly provides that, if, in any proceeding, a question of law is reserved in the form of a special case for the opinion of a superior court, any party to that proceeding, other than a party who is or represents the Crown, may apply to the superior court for, and the court may grant, an indemnity certificate in respect of the costs that the party has incurred in respect of the proceeding on the case stated.
Strictly speaking, the applications of AA and AB for indemnity certificates may not have been matters on which the Secretary or the Attorney-General were entitled to be heard. Nevertheless, I note that the Secretary made positive submissions in favour of the granting of both indemnity certificates.[156] The Attorney-General made no comment in that regard. In respect of AB’s alternative submission, the Secretary submitted that if no indemnity certificates were granted, there ought be no order as to costs. The Attorney-General sought no costs and submitted that no costs ought be ordered against him.[157]
[156]Ibid 45–46.
[157]Ibid 140.
I accept that the present proceeding falls within the category of cases to which s 19 of the Appeal Costs Act applies. It was clearly in the public interest that AA and AB be legally represented. In all of the circumstances, I am satisfied that it is appropriate to grant indemnity certificates in favour AA and AB. Accordingly, it is not necessary for me to deal with AB’s alternative submission that the Secretary ought pay her costs.
Orders
For these reasons, I will order that the questions of law reserved by the Children’s Court on 30 July 2015, in the form of a special case stated for the opinion of this Court, be answered as follows:
Question 1: Is s 241 of the CYF Act invalid pursuant to s 109 of the Commonwealth Constitution, to the extent that it authorised the Secretary to take the Child into emergency care while the Child was an unlawful non-citizen and the subject of the residence determination?
Answer: No.
Question 2: Is s 267 of the CYF Act (when read with ss 262 and 263 of the CYF Act) invalid, pursuant to s 109 of the Commonwealth Constitution, to the extent that it authorises the Children’s Court to extend the 5th interim accommodation order while the Child is:
(a) an unlawful non-citizen; or
(b) the subject of the residence determination?
Answer 2(a): No.
Answer 2(b): No.
Question 3: Is s 280 of the CYF Act invalid, pursuant to s 109 of the Commonwealth Constitution, to the extent that it authorises the Children’s Court to make a protection order in relation to the Child while the Child is:
(a) an unlawful non-citizen; or
(b) the subject of the residence determination?
Answer 3(a): No.
Answer 3(b): No.
It will be recorded in the ‘Other Matters’ part of the order that AA and AB are granted indemnity certificates under s 19 of the Appeal Costs Act in respect of the costs they have incurred in respect of the proceeding on the case stated. Otherwise there will be no order as to costs.
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