Family law practitioners may seek Family Court authorisation for medical treatment of incapable children of a marriage in States with guardianship legislation without complying with State consent requirements where the Family Court has made a competent order, as the State prohibition is invalid to the extent of inconsistency with the Family Court's jurisdiction.
Later decisions that cite P v P
Decisions cited by P v P
P v P [1994] HCA 20; (1994) 181 CLR 583, (1994) 120 ALR 545, (1994) 68 ALJR 449
F.C. 94/019
Number of pages - 43
Constitutional Law (Cth) - Family Law
HIGH COURT OF AUSTRALIA
MASON CJ(1), BRENNAN(2), DEANE(1), DAWSON(3), TOOHEY(1), GAUDRON(1) AND
McHUGH(4) JJ
Constitutional Law (Cth) - Powers of Commonwealth Parliament Marriage - Custody and guardianship of infants - Inconsistency between Commonwealth and State laws - Child of marriage - Family Court of Australia - Jurisdiction - Court order - Law of the Commonwealth - The Constitution (63 and 64 Vict. c. 12), ss. 51(xxi), (xxii), Ch. III, ss. 109, 118 - Judiciary Act 1903 (Cth), s. 79 - Family Law Act 1975 (Cth), ss. 60H, 63(1), 64(1) - Guardianship Act 1987 (N.S.W.), s. 35.
Family Law - Family Court of Australia - Jurisdiction - Welfare Parens
patriae - Intellectually disabled child - Sterilization
- Power of Court to
authorize operation where prohibited by State law Construction of statute -
Family Law Act 1975 (Cth), ss. 60H,
63(1), 64(1) - Guardianship Act 1987
(N.S.W), ss. 33(1), (2), 34(1), 35, 36, 37(1), (2), 42(1), 44(1), 45(1), (2),
(3), 46(1), 49, 76.
HEARING
1994, February 2, 3, April 20ORDER
Answer the questions reserved for the consideration of the Court as follows:
2. If yes to 1, is such purported conferral of power on the Family Court of
Australia consistent with Chapter III of the Commonwealth
Constitution?
Answer: Yes.
3. If yes to 2, is such purported conferral of power on the Family Court of
Australia a valid exercise of the legislative power
of the Commonwealth
Parliament?
Answer: Yes.
4. If yes to 3, except in cases to which section 60H(2)(e) of the Family Law
Act 1975 (C'th) applies, does that Act, by virtue
of s.109 of the
Constitution, invalidate the Guardianship Act 1987 (NSW) to the extent that
the latter Act purports to prohibit or authorise a medical procedure to be
carried out on a child of a marriage
that is intended, or is likely, to have
the effect of rendering the child permanently infertile?
Answer: Yes. But only to the extent that s,35(1) of the Guardianship Act
1986 (NSW) would prohibit medical or dental treatment
authorised by a
competent order of the Family Court of Australia.
5. If yes to 4, will orders by the Family Court as sought by the applicant
in this case provide a valid authority to a medical
practitioner in New South
Wales to carry out the procedure refered to?
Answer: Yes.
DECISION
MASON CJ, DEANE, TOOHEY AND GAUDRON JJ This is a case stated by
Facts
2. The applicant ("Mrs P") and the respondent ("Mr P") were married
in 1966. In 1990, their marriage was dissolved by an order of the
Family Court. L, who is at present 16 years old, is a child of
that marriage. Pursuant to an order of the Family Court, Mrs P has
custody of L who is intellectually disabled, having, so the Court was
informed, the mental ability of a child of between 3 and 7 years of
age. L is a weekly boarder at a school in New South Wales for
children with intellectual disabilities and otherwise resides with the
applicant in that State.
3. In June 1993, Mrs P applied to the Family Court for a number of
orders including an order:
"That the applicant wife and respondent husband be directed
to do all such acts and things and sign all and any
documents/authorisations/consents necessary to cause the
child (L) born 27 July 1977 to attend a medical
practitioner to obtain medical treatment such that -
(i) she thereafter ceases to menstruate; and
(ii) she is permanently prevented from becoming pregnant."
the proceedings. Nonetheless, he strongly supports the application
to the Family Court. He appeared in person before this Court on the
hearing of the case stated and made clear that he, like Mrs P, is
convinced that the proposed medical treatment is essential in the
interests of L's welfare. The other orders sought by the applicant in
the proceedings in the Family Court include an order that the "medical
practitioner" be one "recommended/suggested" by a named member of the
medical staff of the Prince of Wales Children's Hospital or, in the
alternative, a medical practitioner appointed by the Family Court.
4. Subject to the making of such orders by the Family Court,
the applicant and the respondent propose to have carried out on L
"a medical treatment intended to have the effect of rendering her
permanently infertile". L is incapable of understanding the general
nature and effect of such a medical procedure. For reasons that
will appear, neither the applicant nor the respondent has applied, or
intends to apply, to the Guardianship Board constituted under the
Guardianship Act 1987 (N.S.W.) ("the Board") for its consent to the
carrying out of the proposed medical treatment. The argument of the
case has proceeded on the basis that the proposed medical treatment
would be carried out in New South Wales.
Questions reserved
5. The case stated reserves five questions for the opinion of the
Full Court. They are as follows:
"1. Does the Family Law Act 1975 (C'th) purport to conferAt the hearing of the stated case, both parties and the Commonwealth
on the Family Court of Australia the power to make an
order authorising a person to carry out on a child of a
marriage medical treatment in New South Wales that is
intended, or is reasonably likely, to have the effect
of rendering the child permanently infertile, in
circumstances where the carrying out of the treatment
would otherwise be contrary to the Guardianship Act
1987 (NSW)?
2. If yes to 1, is such purported conferral of power on
the Family Court of Australia consistent with Chapter
III of the Commonwealth Constitution?
3. If yes to 2, is such purported conferral of power on
the Family Court of Australia a valid exercise of the
legislative power of the Commonwealth Parliament?
4. If yes to 3, except in cases to which section 60H(2)(e)
of the Family Law Act 1975 (C'th) applies, does that
Act, by virtue of section 109 of the Constitution,
invalidate the Guardianship Act 1987 (NSW) to the
extent that the latter Act purports to prohibit or
authorise a medical procedure to be carried out on a
child of a marriage that is intended, or is reasonably
likely, to have the effect of rendering the child
permanently infertile?
5. If yes to 4, will orders by the Family Court as sought
by the applicant in this case provide a valid authority
to a medical practitioner in New South Wales to carry
out the procedure referred to?"
The Guardianship Act
6. All of the provisions of the Guardianship Act to which specific
reference is made in the body of this judgment are in Pt 5 ("MEDICAL
AND DENTAL TREATMENT") of that Act. Section 34(1) provides that Pt 5
applies:
"to a patient:It is common ground that L is such a "patient" and that Pt 5 is
(a) who is of or above the age of 16 years; and
(b) who is incapable of giving consent to the carrying out
of medical or dental treatment".
"'patient' means a person on whom some other person is
proposing that medical or dental treatment be
carried out".).
7. The provisions of Pt 5 establish a legislative scheme regulating
the administration of "medical or dental treatment" to the persons
to whom the Part applies. For present purposes, the more important
provisions of Pt 5 are as follows:
"33. (1) In this Part:
'medical or dental treatment' or 'treatment' means:
(a) medical treatment (including any medical or
surgical procedure, operation or examination and
any prophylactic, palliative or rehabilitative
care) normally carried out by or under the
supervision of a medical practitioner; or
(b) dental treatment (including any dental procedure,
operation or examination) normally carried out by
or under the supervision of a dentist; or
(c) any other act declared by the regulations to be
treatment for the purposes of this Part,
but does not include:
(d) any non-intrusive examination made for diagnostic
purposes (including a visual examination of the
mouth, throat, nasal cavity, eyes or ears); or
(e) first-aid medical or dental treatment; or
(f) the administration of a pharmaceutical drug for
the purpose, and in accordance with the dosage
level, recommended in the manufacturer's
instructions (being a drug for which a
prescription is not required and which is normally
self-administered); or
(g) any other kind of treatment that is declared
by the regulations not to be treatment for the
purposes of this Part;
'major treatment' means treatment (other than special
treatment) that is declared by the regulations to be
major treatment for the purposes of this Part;
'minor treatment' means treatment that is neither special
treatment nor major treatment;
'special treatment' means:
(a) any treatment that is intended, or is reasonably
likely, to have the effect of rendering
permanently infertile the person on whom it is
carried out; or
(b) any new treatment that has not yet gained the
support of a substantial number of medical
practitioners or dentists specialising in the area
of practice concerned; or
(c) any other kind of treatment declared by the
regulations to be special treatment for the
purposes of this Part.
(2) For the purposes of this Part, a person is incapable
of giving consent to the carrying out of medical or dental
treatment if the person:
(a) is incapable of understanding the general nature and
effect of the proposed treatment; or
(b) is incapable of indicating whether or not he or she
consents or does not consent to the treatment being
carried out.
...
35. (1) A person must not carry out medical or dental
treatment on a patient to whom this Part applies unless:
(a) consent for the treatment has been given in
accordance with this Part; or
(b) the carrying out of the treatment is authorised by
this Part without any such consent; or
(c) the treatment is carried out in accordance with an
order made by the Supreme Court in the exercise of
its jurisdiction with respect to the guardianship of
persons.
Maximum penalty:
. in the case of special treatment (on conviction on
indictment) - imprisonment for 7 years; or
. in the case of minor or major treatment (on summary
conviction) - imprisonment for 1 year or 10 penalty
units, or both.
(1A) Subsection (1)(c) does not apply in the case of
special treatment that is special treatment of the kind
referred to in paragraph (a) of the definition of 'special
treatment' in section 33(1) or special treatment prescribed
by the regulations for the purposes of this subsection.
(2) This section does not limit the operation of any other
Act or law under which minor treatment may be carried out
on a person without that person's consent.
36. (1) Consent to the carrying out of medical or dental
treatment on a patient to whom this Part applies may be
given:
(a) in the case of minor or major treatment - by the
person responsible for the patient ((2) Section 3A(1) (in Pt
1) of the Guardianship Act defines "person responsible". The
combined effect of the definition and provisions of the Children
(Care and Protection) Act 1987 (N.S.W.) to which the definition
refers is that "the person responsible" for an incapable child
(i.e. a person under the age of 18 years) will ordinarily be the
parents or a parent or other person who has the care of the child
or, if the child is under the care of the Minister or
Director-General for Youth and Community Services, the Minister or
the Director-General.) ; or
(b) in any case - by the Board.
(2) The guardian ((3) Section 3 of the Guardianship Act (in Pt 1)
defines "guardian" for the purposes of that Act as meaning "a
person who is, whether under this Act or any other Act or law, a
guardian of the person of some other person (other than a child who
is under the age of 16 years)".) of a patient may also consent to
the carrying out of continuing or further special treatment if
the Board has previously given consent to the carrying out
of the treatment and has authorised the guardian to
give consent to the continuation of that treatment or to
further treatment of a similar nature.
37. (1) Medical or dental treatment may be carried out on
a patient to whom this Part applies without consent given
in accordance with this Part if the medical practitioner or
dentist carrying out or supervising the treatment considers
the treatment is necessary, as a matter of urgency:
(a) to save the patient's life; or
(b) to prevent serious damage to the patient's health;
or
(c) except in the case of special treatment - to prevent
the patient from suffering or continuing to suffer
significant pain or distress.
(2) Minor treatment may (subject to subsection (3)) also
be carried out on a patient to whom this Part applies
without any consent given in accordance with this Part if:
(a) there is no person responsible for the patient; or
(b) there is such a person but that person either cannot
be contacted or is unable or unwilling to make a
decision concerning a request for that person's
consent to the carrying out of the treatment.
...
42. (1) Any person may apply to the Board for consent
to the carrying out of medical or dental treatment on a
patient to whom this Part applies.
...
44. (1) If, after conducting a hearing into an application
for consent to the carrying out of medical or dental
treatment on a patient to whom this Part applies, the Board
is satisfied that it is appropriate for the treatment to
be carried out, it may consent to the carrying out of the
treatment.
...
45. (1) The Board must not give consent to the carrying
out of medical or dental treatment on a patient to whom
this Part applies unless the Board is satisfied that the
treatment is the most appropriate form of treatment for
promoting and maintaining the patient's health and
well-being.
(2) However, the Board must not give consent to the
carrying out of special treatment unless it is satisfied
that the treatment is necessary:
(a) to save the patient's life; or
(b) to prevent serious damage to the patient's health,
or unless the Board is authorised to give that consent
under subsection (3).
(3) In the case of:
(a) special treatment of a kind specified in paragraph
(b) of the definition of that expression in section
33(1); or
(b) prescribed special treatment (other than special
treatment of a kind specified in paragraph (a) of
that definition),
the Board may give consent to the carrying out of the
treatment if it is satisfied that:
(c) the treatment is the only or most appropriate way of
treating the patient and is manifestly in the best
interests of the patient; and
(d) in so far as the National Health and Medical
Research Council has prescribed guidelines that are
relevant to the carrying out of that treatment -
those guidelines have been or will be complied with
as regards the patient.
...
46. (1) Subject to subsections (2) and (3), a consent given
under this Part in respect of the carrying out of medical or
dental treatment on a patient to whom this Part applies has
effect:
(a) as if the patient had been capable of giving consent
to the carrying out of the treatment; and
(b) as if the treatment had been carried out with the
patient's consent."
8. Three comments should be made at once about the overall effect
of the provisions of Pt 5. The first is that, putting to one side
the insignificant matters excluded from the definition of "medical or
dental treatment" in s.33(1) and treatment authorized by the Supreme
Court of New South Wales, the Part establishes a comprehensive scheme
governing the administration of medical or dental treatment to
incapable persons who are of or above the age of 16 years. The basis
of that scheme is s.35(1)'s general prohibition, under criminal
sanction, of the administration of such treatment to such persons
unless either consent has been given in accordance with Pt 5 or the
carrying out of the treatment without consent is authorized by that
Part. In the case of "minor or major treatment" ((4) i.e. treatment
which is not "special treatment": see definition in s.33(1).),
consent may be given by "the person responsible for the patient" or by
the Board. In the case of "special treatment", consent can, apart from
urgent cases, be given only by the Board.
9. The second comment which should be made at this stage is that,
under that scheme, particularly stringent restrictions are imposed in
relation to treatment involving sterilization ((5) Paragraph (a)
"special treatment".). In no case can such treatment be carried out
otherwise than for the reason that it is necessary to save the
patient's life or to prevent serious damage to the patient's health.
The third comment is that the Guardianship Act expressly recognizes
and, subject to one important qualification, preserves the jurisdiction
of the Supreme Court of New South Wales to authorize medical or dental
treatment in the exercise of its guardianship jurisdiction. It does
this by s.35(1)(c)'s exclusion of treatment carried out in accordance
with an order made by the Supreme Court in the exercise of that
jurisdiction from s.35(1)'s otherwise general prohibition of treatment
without direct authorization or consent under other provisions of Pt 5.
The qualification is that s.35(1)(c) does not apply in the case oftreatment involving sterilization or in the case of other prescribed
10. The distinction which s.45(2) of the Guardianship Act draws
between "special treatment" which is "necessary" to save life or
prevent serious damage to health and other "special treatment" is,
in the case of a medical procedure involving sterilization, imprecise
and difficult to apply in a borderline case. Nonetheless, some such
distinction has commonly been seen as of critical importance in cases
dealing with the power of parents or the jurisdiction of courts to
authorize such a procedure in the case of an incapable child. A
comparable but more precise (and more stringent) distinction was drawn
by this Court in Secretary, Department of Health and Community
Services v. JW.B. and S.M.B. (Marion's Case) ((6) [1992] HCA 15; (1992) 175 CLR
218; see also Re Jane (1988) 94 FLR 1 at 30-31; Re Eve (1986) 31 DLR
(4th) 1 at 9, 30-31 but cf. In Re B. (A Minor) (1988) AC 199 at 203-204
per Lord Hailsham of St. Marylebone LC, who found the distinction
between "therapeutic" and "non-therapeutic" sterilization
"meaningless"; and at 205 per Lord Bridge of Harwich.) where the
majority judgment of Mason CJ, Dawson, Toohey and Gaudron JJ makes
clear that the decision in that case that the authorization of a
medical procedure involving sterilization "falls outside the ordinary
scope of parental powers and therefore outside the scope of the
powers, rights and duties of a guardian under ... the Family Law Act"
((7) (1992) 175 CLR at 253.) is confined to sterilization which is
not "a by-product of surgery appropriately carried out to treat some
malfunction or disease" ((8) ibid. at 250.). It is convenient to
refer to sterilization which is not a by-product of such surgery as
"planned sterilization".
11. There is nothing in the case stated to the effect that the
proposed medical treatment of L is necessary either to save her life
or to prevent serious damage to her health and the Court was informed
that it can be assumed, for the purposes of the case, that the
proposed medical procedure would involve the sterilization of L for
reasons other than those mentioned in s.45(2). The direct reasons for
it would be to preclude pregnancy and to prevent menstruation. That
means that the questions in the case fall to be answered on the basis
that the circumstances of the case are such that, subject to the
effect of the Family Law Act and the jurisdiction of the Family Court,
the proposed medical treatment of L would contravene the provisions of
Pt 5.
The jurisdiction of the Family Court of Australia
12. Part VII of the Family Law Act 1975 (Cth) constitutes a broad
legislative scheme relating to the maintenance, custody, guardianship
and welfare of "a child of a marriage" ((9) See s.60F.). Section
63(1), which is in Pt VII, confers jurisdiction on the Family Court "in
relation to matters arising under this Part". The "welfare of a child
of a marriage is a 'matter' which arises under Pt VII for the purposes
of s.63(1) and is, therefore, an independent subject which may support
proceedings before the Family Court" ((10) Marion's Case (1992) 175
CLR at 257.). Section 64(1) of the Family Law Act provides:
"In proceedings in relation to the custody, guardianship
or welfare of, or access to, a child:
...
(c)... the court may make such order in respect of
those matters as it considers proper, including an
order until further order."
13. It was held in Marion's Case that, since 1983, Pt VII of
the Family Law Act has invested the Family Court with a welfare
jurisdiction in respect of a child of a marriage which encompasses the
substance of the traditional parens patriae jurisdiction freed from
the preliminary requirement of a wardship order ((11) ibid. at 256,
294, 318.). Marion's Case also established that, putting to one side
the effect of any valid and applicable State or Territory legislation,
the welfare jurisdiction of the Family Court extends, in the case of an
incapable child of a marriage, to the authorization of medical
treatment, including a medical procedure involving planned
sterilization, where such treatment is necessary in the best interests
of the child ((12) ibid. at 254-260.).
14. It follows that, subject to two important qualifications,
Marion's Case dictates an affirmative answer to the question whether
the Family Law Act confers upon the Family Court the power to
authorize the carrying out on L of the proposed medical treatment.
The first qualification is that Marion's Case related to the planned
sterilization of a child who was resident in the Northern Territory
and therefore did not involve problems arising from the division of
legislative powers between the Commonwealth and the States under the
Constitution. Obviously, the Family Law Act can confer jurisdiction
upon the Family Court to authorize such medical treatment in the case
of a child who, like L, is resident in a State only to the extent that
it is within the legislative competence of the Parliament to make a
law conferring such jurisdiction. The second is that, in Marion's
Case, the law of the Northern Territory contained no legislative
provisions regulating the carrying out of medical treatment involving
sterilization such as those which are contained in Pt 5 of the
Guardianship Act ((13) See ibid. at 262-263, 308.). Accordingly, it
will be necessary to consider the relationship between the provisions
of Pt 5 of the Guardianship Act and the provisions of the Family Law
Act which prima facie confer jurisdiction upon the Family Court to make
an order of the kind sought in the present case. It is convenient to
turn first to the question of the legislative power of the Commonwealth
Parliament.
Commonwealth legislative power
15. As has been said, Marion's Case arose in the Northern Territory.
In a context where Pt VII of the Family Law Act contains separate
express provision that the Part "applies in and in relation to the
Territories" ((14) Family Law Act, s.60E(3).), the legislative
competence of the Parliament to enact a law conferring jurisdiction
upon the Family Court to make the order in that case could have been
sustained by reference to s.122 of the Constitution which confers a
general legislative power to "make laws for the government of any
territory surrendered by any State to and accepted by the
Commonwealth". However, examination of the majority judgment in
Marion's Case discloses that the Court's conclusion that the conferral
upon the Family Court of the jurisdiction to make the relevant order
was within the legislative power of the Parliament was neither confined
to the Family Court's jurisdiction in respect of Northern Territory
matters nor founded on s.122 of the Constitution. That conclusion
applied generally to the Family Law Act's conferral of jurisdiction to
make an order of that kind in a case where the welfare of "a child of a
marriage" ((15) See ibid., s.60F(2)(a) and (b).) is involved. It was
based upon the federal ((16) i.e. "for the peace, order, and good
government of the Commonwealth": Constitution, s.51.) legislative
powers conferred upon the Parliament by s.51(xxi) with respect to
"Marriage" and by s.51(xxii) with respect to "Divorce and matrimonial
causes; and in relation thereto, parental rights, and the custody and
guardianship of infants". Having referred to those two paragraphs and
to s.122, Mason CJ, Dawson, Toohey and Gaudron JJ said ((17)
Marion's Case (1992) 175 CLR at 261.):
"It is clear enough that a question of sterilizationThose comments constitute an integral part of the reasoning of the
of a child of a marriage arises out of the marriage
relationship and that the sterilization of a child arises
from the custody or guardianship of a child. Therefore,
jurisdiction to authorize a sterilization is within the
reach of power of the Commonwealth, quite apart from the
operation of s.122 of the Constitution."
16. The grants of legislative power contained in pars (xxi) and
(xxii) of s.51 of the Constitution are cumulative. Each must be given
its full scope and effect. Neither is to be read down by reference
to the other ((18) See Attorney-General (Vict.) v. The Commonwealth
("the Marriage Act Case") [1962] HCA 37; (1962) 107 CLR 529 at 560, 572; Russell v.
Russell [1976] HCA 23; (1976) 134 CLR 495 at 539; Re F.; Ex parte F. [1986] HCA 41; (1986) 161 CLR
376 at 387.). Paragraph (xxi)'s grant of legislative power with
respect to "Marriage" encompasses laws dealing with the protection or
welfare of children of a marriage in so far as the occasion for such
protection or welfare arises out of, or is sufficiently connected
with, the marriage relationship ((19) See, e.g. Reg. v. Lambert; Ex
parte Plummer [1980] HCA 52; (1980) 146 CLR 447 at 456; Gazzo v. Comptroller of Stamps
(Vict.) [1981] HCA 73; (1981) 149 CLR 227 at 234-235, 247-248; Fountain v. Alexander
[1982] HCA 16; (1982) 150 CLR 615 at 632; In the Marriage of Cormick [1984] HCA 79; (1984) 156 CLR
170 at 175-176; Re F.; Ex parte F. (1986) 161 CLR at 382, 389-390.).
To a significant extent, that operation of par.(xxi) overlaps
par.(xxii)'s express conferral of legislative power with respect to
"parental rights, and the custody and guardianship of infants" in
relation to "Divorce and matrimonial causes". The authorization of
medical treatment of an incapable child of a marriage, including
medical treatment of the kind involved in Marion's Case and in this
case, is something which is directly related to the protection and
welfare of the particular child and which arises out of, and is itself
an aspect of, the relevant marriage relationship. To the extent that
the relevant provisions of Pt VII of the Family Law Act confer
jurisdiction to give or withhold such authorization, they are a law
with respect to marriage within s.51(xxi). Moreover, the relevant
provisions of Pt VII are, in the context of that conferral of
jurisdiction upon the Family Court, directly concerned with parental
rights and the custody and guardianship of infants in relation to
divorce or matrimonial causes and are accordingly within the grant of
legislative power contained in s.51(xxii).
17. It will subsequently be necessary to refer to an argument based
on Ch.III of the Constitution to the effect that the purported
conferral of jurisdiction upon the Family Court involves an
impermissible attempt to invest a federal court with non-judicial
power. Subject to that argument and to the effect of Pt 5 of the
Guardianship Act, it follows from what has been said above that the
Family Law Act validly invests the Family Court with jurisdiction to
make the order sought by Mrs P in the present case.
The effect of Pt 5 of the Guardianship Act
18. Section 109 of the Constitution provides that, when any State
law is inconsistent with a law of the Commonwealth, the Commonwealth
law "shall prevail" and the State law "shall, to the extent of the
inconsistency, be invalid". That means that, if there be any
inconsistency between a Commonwealth law which confers jurisdiction
upon a federal court and a State law, the Commonwealth law conferring
the jurisdiction prevails and the State law is pro tanto invalid.
Necessarily, the starting point for determining whether such
inconsistency exists lies in an identification of the intended scope
and operation of the Commonwealth law. If the Commonwealth law
confers jurisdiction in terms which convey a legislative intent that
its exercise is not to be confined or constrained by the prohibition
or requirements of State laws, a question might arise about the extent
to which s.109 can give paramountcy to the Commonwealth law over State
laws which are not directly related to the relevant head or heads of
Commonwealth legislative power ((20) See, e.g., Ex parte McLean [1930] HCA 12; (1930)
43 CLR 472 at 485-486; Ansett Transport Industries (Operations) Pty.
Ltd. v. Wardley [1980] HCA 8; (1980) 142 CLR 237 at 279-280; and cf. Colvin v.
Bradley Brothers Pty. Ltd. [1943] HCA 41; (1943) 68 CLR 151 at 158.). Subject to
that question, s.109 of the Constitution will, in such a case,
invalidate any State law to the extent that it would directly or
indirectly (e.g. by conferring authority on a State court,
instrumentality or officer) preclude, override or render ineffective
the exercise by the federal court of the jurisdiction so conferred.
Conversely, if the terms of the Commonwealth law conferring
jurisdiction or power convey a legislative intent that the jurisdiction
or power must be exercised conformably with applicable prohibitions and
requirements of State law, the jurisdiction conferred will, as a matter
of construction, be accordingly confined with the result that there is
no inconsistency for the purposes of s.109.
19. A law of the Parliament conferring jurisdiction upon a federal
court in general terms will, in the absence of a clear legislative
intent to the contrary, ordinarily be construed as not intended to
confer jurisdiction to make an order authorizing or requiring the
doing of an act which is specifically prohibited and rendered criminal
by the ordinary criminal law of the State or Territory in which the
act would be done. Of course, the nature of the jurisdiction or the
matters which have historically been determined in the exercise of
that or a like jurisdiction may suffice to make clear such a contrary
intent.
20. Quite apart from any question of constitutional power ((21) See
fn.(20).), the reason why a law conferring jurisdiction in general
terms is to be construed in the manner indicated is that it is
ordinarily to be presumed that it is the intent of the Parliament that
jurisdiction conferred in general terms will be exercised in the
context of, and within the confines imposed by, the ordinary criminal
law of the relevant State or Territory. That approach to construction
is prima facie applicable to the provisions of the Family Law Act
conferring welfare jurisdiction with respect to children of a marriage
upon the Family Court.
21. On the other hand, that ordinary approach to construction does
not extend to the case where the State or Territory prohibition under
criminal sanction is not imposed solely as part of the ordinary
criminal law, but is imposed as an integral part of a statutory scheme
conferring upon a local judicial or administrative body jurisdiction
or powers which overlap or compete with the jurisdiction conferred by
the Commonwealth law. Nor is it applicable to a case where the State
or Territory prohibition is imposed as part of a general regulatory
scheme which operates within the very area which the jurisdiction
validly conferred by the Commonwealth law was intended to control. In
such cases, there is no presumption that it was the intent of the
Parliament that the jurisdiction conferred by the Commonwealth law
should be overridden by, or subjected to, the prohibitions and
requirements of the overlapping or competing State or Territory
scheme. If, in such a case, the terms and operation of the
Commonwealth law disclose a legislative intent to cover the relevant
field, s.109 of the Constitution will apply to render invalid the
State or Territory law to the extent that it intrudes within the area
validly occupied by the Commonwealth law. If the terms and operation
of the Commonwealth law disclose no such legislative intent, the
existence and extent of inconsistency between the Commonwealth and the
State or Territory laws will depend upon the terms and operation of
each. Commonly, when that is so, the State or Territory law will be
inconsistent with the Commonwealth law and invalid pursuant to s.109
of the Constitution to, but only to, the extent that it would "alter,
impair or detract from" ((22) Victoria v. The Commonwealth ("the
Kakariki") [1937] HCA 82; (1937) 58 CLR 618 at 630 per Dixon J) the Commonwealth
law's conferral of jurisdiction by directly or indirectly precluding,
overriding or rendering ineffective an actual exercise of that
jurisdiction ((23) See, generally, Ex parte McLean (1930) 43 CLR at
484-485; Collins v. Charles Marshall Pty. Ltd. [1955] HCA 44; (1955) 92 CLR 529 at
547-548; T.A. Robinson and Sons Pty. Ltd. v. Haylor [1957] HCA 76; (1957) 97 CLR 177
at 183; Metal Trades Industry Association v. Amalgamated Metal Workers'
and Shipwrights' Union [1983] HCA 28; (1983) 152 CLR 632 at 642- 643, 648.).
The practical effect of that pro tanto invalidity of the State or
Territory law is that orders made in the exercise of the Commonwealth
jurisdiction will prevail over the provisions of the State or
Territory law or orders made or acts done in the exercise of power or
authority which the State or Territory law purportedly confers.
22. As earlier mentioned, the State prohibition of a medical
procedure involving planned sterilization of a person over the age of
16 years is not imposed as an absolute prohibition of such medical
treatment of a person over the age of 16 years or as part of the
ordinary criminal law. It is a prohibition which results from the
combined operation of a general statutory scheme regulating the
administration of significant medical or dental treatment to incapable
persons by imposing a general prohibition of such treatment unless the
particular treatment of the particular incapable person is authorized
by the scheme without consent, consented to under the scheme, or
authorized by an order of the Supreme Court of New South Wales in the
exercise of its guardianship jurisdiction. That being so, the
critical question for present purposes is not whether there would,
for the purposes of s.109 of the Constitution, be any inconsistency
between some theoretical State law imposing a specific prohibition,
under criminal sanction, of medical treatment involving planned
sterilization of an incapable person and the relevant provisions of
the Family Law Act. The critical question is whether there is any
such inconsistency between the general prohibition of medical or
dental treatment imposed by s.35(1) as the basis of a general State
medical welfare scheme applicable to incapable persons of or over 16
years of age and those provisions of the Family Law Act.
23. It is clear from Marion's Case that, putting to one side the
effect of any applicable State or Territory law, the welfare
jurisdiction of the Family Court extends to authorizing or prohibiting
medical or dental treatment of a child of a marriage both "in cases
where parents have no power to consent (to such treatment) as well as
cases in which they have the power" ((24) (1992) 175 CLR at 259.).
Indeed, that jurisdiction in relation to medical treatment of a child
lies at, or close to, the heart of a welfare jurisdiction which is
applicable to that child. The general welfare jurisdiction of the
Family Court in respect of children of a marriage was conferred upon it
by the Family Law Amendment Act 1983 (Cth) ((25) ibid. at 256.). At
the time, there was no New South Wales legislative scheme dealing with
medical and dental treatment of incapable persons of the kind
introduced by Pt 5 of the Guardianship Act in 1987. The Supreme Court
of New South Wales had, however, long been vested with a wide parens
patriae or guardianship jurisdiction. Clearly enough, it was not the
intention of the Parliament, in conferring general welfare jurisdiction
upon the Family Court in respect of children of a marriage, to cover
the field and thereby deprive the State Supreme Court of any parens
patriae or guardianship jurisdiction in respect of such children.
Equally clearly, however, it was not the intention of the Parliament to
subordinate the jurisdiction conferred by it on the Family Court, being
part of the judicial power of the Commonwealth, to that which was
conferred by State law upon the State Supreme Court. The intent of
the Parliament ((26) See the cases cited in fn.(23).), confirmed by
the subsequent cross-vesting legislation of 1987 ((27) See, in
particular, Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth).),
was that both jurisdictions should exist concurrently. In the case of a
conflict between orders made by the Family Court in the exercise of the
jurisdiction conferred by the Family Law Act and orders made by the
Supreme Court of New South Wales in the exercise of its jurisdiction,
the orders made by the Family Court would necessarily prevail. The
State law, whether statutory or inherited, which conferred the relevant
jurisdiction upon the Supreme Court would, to the extent that it
purportedly gave legal efficacy to an order which was inconsistent with
an order of the Family Court, be rendered invalid by s.109 of the
Constitution for the reason that it was "to that extent" inconsistent
with the provisions of the Family Law Act giving legal efficacy to the
order made by the Family Court ((28) See, e.g., Colvin v. Bradley
Brothers Pty. Ltd. (1943) 68 CLR at 163-164.).
24. The medical welfare regime introduced by Pt 5 of the Guardianship Act
would, if completely valid, effectively exclude the
jurisdiction
of any court other than the State Supreme Court with respect to
medical welfare matters relating to incapable persons over the age of
16 years. As a practical matter, the effect of that State scheme is,
if the Family Court is bound to observe its provisions in the exercise
of its welfare jurisdiction, to remove the medical welfare component
from that jurisdiction in so far as it relates to incapable New South
Wales children of a marriage who are aged 16 years or more. Putting
to one side the insignificant exclusions from the definition of
"medical or dental treatment" in s.33(1) of the Guardianship Act and
cases of urgent treatment, the Family Court could not, in New South
Wales, authorize any medical or dental treatment of such a child in
the exercise of its own welfare jurisdiction unless the "person
responsible" or "guardian" (in the case of non-special treatment)
or the Board consented to the treatment or unless the treatment was
authorized by an order of the Supreme Court of New South Wales. That
situation would result from the general prohibition contained in
s.35(1) of the Guardianship Act and the omission of any reference to
orders made by the Family Court in the provisions of the State scheme
providing for escape from that general prohibition. Indeed, if the
prohibition contained in Pt 5 were applicable to preclude medical
treatment authorized by the Family Court in the exercise of its
general welfare jurisdiction, an extraordinary situation would exist.
The Family Court's own medical welfare jurisdiction in respect of such
children would have been effectively overridden and displaced by a
medical welfare scheme established by a State law except to the extent
that another State law, the Jurisdiction of Courts (Cross-vesting) Act
1987 (N.S.W.), conferred upon it part of the jurisdiction of the State
Supreme Court which the State scheme had expressly recognized and
largely confirmed.
25. The question arises whether it is possible to discern in the
relevant provisions of the Family Law Act a legislative intent that
the welfare jurisdiction conferred upon the Family Court should be
susceptible of being so constricted by every scheme of the kind
contained in Pt 5 of the Guardianship Act which might subsequently be
introduced by the legislature of a State or Territory. In our view,
the answer to that question is plainly in the negative. Prima facie,
one would not anticipate a legislative intent either to subject the
general welfare jurisdiction with respect to children of a marriage
conferred by the Parliament upon a federal court to every prohibition
and constraint which might subsequently be imposed by a State or
Territory medical welfare scheme or to permit State or Territory
laws to make the effective exercise of an important part of that
jurisdiction of the Family Court dependent upon the exercise by a
State or Territory court or Board of powers or jurisdiction conferred
or confirmed by such a State scheme. Nor is there anything at all in
the relevant provisions of the Family Law Act which supports the
existence of such a legislative intent. To the contrary, in those
cases where the jurisdiction of the Family Law Court was intended by
the Parliament to be excluded by reason of State or Territory welfare
laws, s.60H of the Family Law Act makes specific provision to that
effect ((29) See, in particular, s.60H in relation to children under
such welfare laws.). It is common ground that, in circumstances where
L is not a child under the guardianship, or in the custody or care and
control, of a person under a child welfare law, s.60H does not exclude
the jurisdiction of the Family Court to make the proposed order in the
present case.
26. It follows that the general prohibition of "medical or dental
treatment" of an incapable person imposed by s.35(1) of the
Guardianship Act is inconsistent with the provisions of Pt VII of the
Family Law Act conferring welfare jurisdiction upon the Family Court
to the extent that that general prohibition would preclude or render
ineffective an order by the Family Court authorizing such medical and
dental treatment of an incapable child of a marriage aged 16 years
or more. To the extent of that inconsistency, s.35(1) of the
Guardianship Act is rendered invalid by s.109 of the Constitution.
That does not, of course, mean that s.35(1) is generally invalid in so
far as it applies to children of a marriage. The invalidity under
s.109 is, like the inconsistency, confined to the purported operation
of the State Act to prohibit treatment authorized by the Family Court
in the exercise of the jurisdiction validly conferred upon it by the
Family Law Act. As a practical matter, that invalidity will only
be significant in a case where the Family Court exercises its
jurisdiction to authorize particular medical treatment and then only
in respect of that treatment.
Chapter III of the Constitution
27. There remains to be considered the submission that the provisions
of the Family Law Act are inconsistent with Ch.III of the Constitution
to the extent that they purportedly empower the Family Court to
authorize an act which is inconsistent with the prohibition contained
in s.35(1) of the Guardianship Act. A power to dispense with
compliance with a State criminal law is, so it was said, an executive
power which is inconsistent with the essential character of a court.
The purported conferral of such an executive power upon a Ch.III
court, such as the Family Court, contravenes the Constitution's
requirement that the powers of such a court be exclusively judicial in
their nature. The answer to that submission is, however, plain. It
lies in the operation of s.109 of the Constitution.
28. The relevant provisions of the Family Law Act do not purport to
confer upon the Family Court jurisdiction to dispense with observance
of the criminal law either of New South Wales or of any other State
or Territory. They confer upon the Family Court a general welfare
jurisdiction, with respect to a child of a marriage, which encompasses
the making of an order authorizing medical treatment, involving
planned sterilization, of such a child in circumstances such as those
which exist in the present case. That jurisdiction corresponds with
the traditional parens patriae jurisdiction. It is part of the
judicial power of the Commonwealth.
29. The fact that s.35(1) of the Guardianship Act was enacted
subsequent to the conferral upon the Family Court of that general
welfare jurisdiction neither changed the nature of the jurisdiction
nor converted judicial power into something else. If, in the exercise
of its jurisdiction, the Family Court makes an order which is
inconsistent with the prima facie operation of s.35(1) of the
Guardianship Act, it is not the Family Court's order which overrides
s.35(1)'s prohibition. What has overridden s.35(1)'s prohibition in
such a case is s.109 of the Constitution. For the reasons which have
been given, s.35(1) of the Guardianship Act is, to the extent that it
would prohibit and render criminal what a competent order of the
Family Court would authorize, inconsistent with the provisions of the
Family Law Act validly empowering the Family Court to make such an
order. That being so, the effect of s.109 of the Constitution is that
s.35(1) of the Guardianship Act is invalid to the extent of that
inconsistency.
Conclusion
30. It follows from what has been said above that each of the five
questions in the stated case should be answered as follows:
1. Yes.
2. Yes.
3. Yes.
4. Yes. But only to the extent that s.35(1) of the Guardianship
Act 1987 (N.S.W.) would prohibit medical or dental treatment
authorized by a competent order of the Family Court of
Australia.
31. 5. Yes.
The problem defined
BRENNAN J The title to these proceedings suggests that there is some issue
between Mrs P and Mr P awaiting determination by an exercise of
judicial power. In fact there is no controversy between them. Their
daughter, L, now aged 16, is the subject of an application filed in
the Family Court by Mrs P Mrs P seeks an order that L be subjected
to "medical treatment such that -
"(i) she thereafter ceases to menstruate; andThe stated case contains a paragraph saying that L is "incapable
(ii) she is permanently prevented from becoming pregnant."
" The objects of this Part are:Treatment intended, or reasonably likely, to have the effect of
(a) to ensure that people are not deprived of necessary
medical or dental treatment merely because they lack
the capacity to consent to the carrying out of such
treatment; and
(b) to ensure that any medical or dental treatment that
is carried out on such people is carried out for the
purpose only of promoting and maintaining their health
and well-being."
"(a) to save the patient's life; orWhere the Board is so satisfied, it may consent to the treatment ((33)
(b) to prevent serious damage to the patient's
health" ((32) s.45(2).).
2. The questions which arise for determination are raised because
Mrs P and Mr P have made no application to the Board in respect of
their daughter but rely on a jurisdiction which is said to be vested
in the Family Court by virtue of Pt VII of the Family Law Act 1975
(Cth) (hereafter "Pt VII"). The jurisdiction which Mrs P seeks to
invoke is not a jurisdiction to declare whether it would be lawful
to procure the sterilization of L. A jurisdiction of that kind is
extremely useful in cases where a procedure is of doubtful legality.
Thus, when the question came before the courts in England whether
treatment should be withdrawn from Anthony Bland who was so
irreversibly brain damaged as to be in a persistent vegetative state,
Bingham MR and four Lords of Appeal approved the procedure of
applying for a declaration as to the legitimacy of the course
proposed: Airedale N.H.S. Trust v. Bland ((34) [1992] UKHL 5; (1993) AC 789 at
815-816 per Bingham MR; 859 per Lord Keith of Kinkel; 873, 874 per
Lord Goff of Chieveley; 875 per Lord Lowry and 885 per Lord
Browne-Wilkinson.). But the jurisdiction invoked by Mrs P is of a
different kind. She seeks an order which, by its terms, authorizes the
sterilization of L, having the effect of making lawful what would
otherwise be prohibited by s.35 of the Guardianship Act.
3. The questions reserved for the opinion of this Court by the stated
case are as follows:
"1. Does the Family Law Act 1975 (C'th) purport to confer
on the Family Court of Australia the power to make an
order authorising a person to carry out on a child of a
marriage medical treatment in New South Wales that is
intended, or is reasonably likely, to have the effect
of rendering the child permanently infertile, in
circumstances where the carrying out of the treatment
would otherwise be contrary to the Guardianship Act
1987 (NSW).
2. If yes to 1, is such purported conferral of power on
the Family Court of Australia consistent with Chapter
35. III of the Commonwealth Constitution?
3. If yes to 2, is such purported conferral of power on
the Family Court of Australia a valid exercise of the
legislative power of the Commonwealth Parliament?
4. If yes to 3, except in cases to which section 60H(2)(e)
of the Family Law Act 1975 (C'th) applies, does that
Act, by virtue of section 109 of the Constitution,
invalidate the Guardianship Act 1987 (NSW) to the
extent that the latter Act purports to prohibit or
authorise a medical procedure to be carried out on a
child of a marriage that is intended, or is reasonably
likely, to have the effect of rendering the child
permanently infertile?
5. If yes to 4, will orders by the Family Court as sought
by the applicant in this case provide a valid authority
to a medical practitioner in New South Wales to carry
out the procedure referred to?"
4. Part VII should be construed, if its terms permit, so as to be
within the power of the Parliament to enact it. If, so construed, it
is within the power of the Parliament, it is unnecessary to answer
questions 2 and 3. It is only if the terms in which the Family
Court's jurisdiction is conferred compel the conclusion that Pt VII
purports to confer a jurisdiction beyond power that it would be
necessary to answer questions 2 and 3. As it is possible to construe
Pt VII so as to be within power, the answer to question 1 will subsume
the answers to questions 2 and 3.
5. The key provisions of Pt VII for the purpose of ascertaining the
jurisdiction of the Family Court are s.63(1), which confers on the
Family Court "federal jurisdiction in relation to matters arising
under this Part" and s.64(1) which prescribes the manner in which the
Court is to exercise its jurisdiction "(i)n proceedings in relation
to the custody, guardianship or welfare of, or access to, a child".
Neither of these provisions nor any other provision in Pt VII is
expressed to confer a defined jurisdiction on the Family Court, but
the draftsman has left to implication the conferral on the Court of
a jurisdiction in custody, guardianship, welfare and access. The
factors which s.64 of the Family Law Act direct the Family Court to
consider in exercising its jurisdiction in proceedings in relation to
the custody, guardianship or welfare of, or access to, a child give
little indication of the scope of the jurisdiction. Paragraph (a) of
s.64(1) declares "the welfare of the child" to be the paramount
consideration; par.(bb)(vi) allows the Court to take into account any
fact or circumstance that "in the opinion of the court, the welfare of
the child requires to be taken into account" and par.(c) empowers the
court to "make such order ... as it considers proper".
6. Section 64(1) in particular and Pt VII in general do not define
the "welfare" jurisdiction though it, unlike the jurisdiction in
custody, guardianship and access, is not a traditional or established
head of curial jurisdiction. Its scope must therefore be ascertained
by reference not only to the statutory context - which contains only
slender indicia - but also by reference to the constitutional power to
enact Pt VII and, in particular, to enact s.64(1). In implying the
existence of a "welfare" jurisdiction, it would be erroneous to imply
a jurisdiction of a scope exceeding the jurisdiction which the
Parliament is empowered to confer. For that reason, considerations
of constitutional power are necessarily to be taken into account in
answering question 1.
7. Counsel for Mrs P submitted that the term "welfare" in s.64(1) of
the Family Law Act is "not in any way limited in its scope", and thus
the welfare jurisdiction is said to empower the judges of the Family
Court to authorize the sterilization of a child who is incapable of
giving consent to the carrying out of that procedure (hereafter "an
incompetent child"). As welfare is not defined by that Act - and
cannot be exhaustively defined - the categories of orders which can be
made in exercise of the welfare jurisdiction cannot be exhaustively
stated. In that sense, it is right to say that the jurisdiction is
not limited. But the problem is not to define the outer limits of the
jurisdiction; it is to determine whether a judge of the Family Court
has power ((35) As to jurisdiction and power see Harris v. Caladine
[1991] HCA 9; (1991) 172 CLR 84 at 136 per Toohey J) to make an order authorizing
the non-therapeutic sterilization of an incompetent child in New South
Wales (hereafter "a sterilization order"). The problem is whether,
having regard to the provisions of Pt VII and the legislative powers
available to support it, the welfare jurisdiction empowers a judge of
the Family Court to make a sterilization order.
8. I would answer that question in the negative, both on grounds of
the general policy of the law and on particular grounds addressing
propositions which are said to support an opposing view.
The general policy of the law
9. The starting point has to be the "fundamental principle, plain and
incontestable" ((36) per Robert Goff LJ in Collins v. Wilcock (1984)
1 WLR 1172 at 1177.) that every person's body is inviolate. If the
welfare jurisdiction empowers a judge of the Family Court to form and
to act upon an opinion that a non-consensual invasion of a child's
body is for the child's welfare although the invasion is not necessary
to save the child's life or to save her from serious bodily harm, the
judge's order offends that fundamental principle.
10. If the welfare jurisdiction extends to authorizing the
sterilization of an incompetent child, it extends equally to the case
of any child: s.64(1) of the Family Law Act makes no distinction
between children of different ages with different levels of
comprehension. Of course, the level of comprehension is often
relevant to the ascertainment of a child's welfare, but the scope of
the jurisdiction is not ascertained by reference to the way in which
the jurisdiction might be exercised. Further, if the welfare
jurisdiction extends to authorizing the sterilization of a child with
parental approval, it extends equally to a case where parents object
to the sterilization of their daughter: s.64(1) empowers the Court
to make orders against, as well as in conformity with, the wishes of
a parent or guardian. Does the welfare jurisdiction empower a judge
of the Family Court to authorize the sterilization of any child
irrespective of the wishes of the child, the parents or the guardians?
11. Courts are instruments of State power. Unless driven by legal
imperatives, I would deny to any instrument of the State the power to
authorize the invasion of the physical integrity of any person except
to save that person's life or to save her from serious bodily harm.
In particular, I would deny to any officer of the State the power to
say: "This invasion is not to save you from death or bodily harm but
it is for your own welfare as I, the agent of the State, see it".
Courts and judges, in the absence of governing legal principle or
of guidelines more specific than "welfare" to control the exercise
of such a daunting power, can rely only on their idiosyncratic
perceptions of the circumstances. They are in no special position to
form a judgment in a matter of such gravity. But, if the jurisdiction
be accorded the broad scope claimed by counsel for Mrs P and counsel
for the Commonwealth, the Family Court and its judges would be in a
special - and unenviable - position to carry their opinion into effect
without the consent of the incompetent child and, if need be, over the
objection of her parents and guardians. Even in the imposition of
criminal punishment we have passed beyond the stage where invasions of
personal integrity are judicially authorized. When the scope of the
welfare jurisdiction is undefined by the Family Law Act, I am unable
to construe the bare term "welfare" in such a way as to arm a judge
with power to make an order authorizing a serious and irreversible
invasion of personal integrity.
12. What could be the justification for an order authorizing the
compulsory sterilization of an incompetent child when - indeed,
because - she is intellectually incompetent? If it be said simply
that non-therapeutic sterilization is in the best interests of some
children and that the welfare jurisdiction must be extended in order
to permit the making of orders for non-therapeutic sterilization,
there are two responses which, to my mind, are compelling: first,
that proposition runs counter to the fundamental common law principle
of personal inviolability (to which Pt 5 of the Guardianship Act gives
effect); and, second, in each case, an opinion that a particular child
will be better off if she is sterilized is either speculative or
formed on the basis that the child will be left without other
protection against undesirable sexual access. Perhaps it should not
be left out of account that if a child who is sterilized pursuant to
an order made by a judge of a superior court learns what has been
done to her and complains, she has no redress. The judge bears no
responsibility for the carrying out of the order; the surgeon,
anaesthetist and staff who act under a judicial order in sterilizing a
child are protected by the order.
13. Although these are very general considerations they are
nonetheless important for they influence the path of legal
development. They are relevant because this case may be used as an
analogy in future cases where a question arises as to the power of
judges to authorize the invasion of a person's physical integrity.
However, there are more particular considerations which also lead to
the conclusion that the welfare jurisdiction does not empower the
judges of the Family Court to make a sterilization order.
14. But I must refer next to the case in which this Court first
considered the jurisdiction to make a sterilization order.
Marion's Case ((37) Secretary, Department of Health and Community
Services v. JW.B. and S.M.B. [1992] HCA 15; (1992) 175 CLR 218.)
15. Much reliance was placed on this case by counsel for Mrs P and
counsel for the Commonwealth. In Marion's Case a majority of this
Court held that the welfare jurisdiction empowered the Family Court to
authorize the sterilization of an intellectually disabled teenage girl
in the Northern Territory. The majority judgment ((38) Mason CJ,
Dawson, Toohey and Gaudron JJ) made it clear that the "sterilization"
therein referred to was not "sterilization which is a by-product of
surgery appropriately carried out to treat some malfunction or disease"
((39) ibid. at 250.); it was non-therapeutic sterilization. (As
sterilization is the surgical excision or destruction of the essential
organs of generation, not a by-product of the procedure, I prefer a
classification which points to the purpose for which the surgery is
performed: therapeutic - "to treat some malfunction or disease" - and
non-therapeutic.) For reasons which I stated in Marion's Case, I would
deny that the Parliament has vested jurisdiction in the Family Court to
authorize the non-therapeutic sterilization of a child. I am unable,
with respect, to accept the legal validity of the steps in the
reasoning of the respective majorities in Marion's Case and in this
case. Accordingly, I must state my reasons not only by reference to
what I have already said in Marion's Case (to which I adhere) but by
reference to what I apprehend to be the steps which have led the
majorities to their conclusion.
16. The majority judgment in Marion's Case accepted that parents
generally have the power to consent to medical treatment of a child
who is incapable of giving valid consent ((40) ibid. at 239-240.),
but their Honours were of the opinion that "factors involved in a
decision to authorize sterilization of another person ... indicate
that, in order to ensure the best protection of the interests of a
child, such a decision should not come within the ordinary scope of
parental power to consent to medical treatment. Court authorization is
necessary and is, in essence, a procedural safeguard." ((41) ibid. at
249.) This observation was not linked, in that part of the judgment,
to the welfare jurisdiction of the Family Court. The reasons assigned
for the opinion that Court authorization is required were ((42) ibid.
at 250.) -
"first, because of the significant risk of making the wrongIt was held that, if a valid court authorization were obtained, the
decision, either as to a child's present or future capacity
to consent or about what are the best interests of a child
who cannot consent, and secondly, because the consequences
of a wrong decision are particularly grave."
17. Having held that court authorization was needed in Marion's
Case, the question arose whether the jurisdiction to grant that
authorization was vested in the Family Court of Australia. It was
pointed out that "there is no express power to authorize sterilization
conferred by the Family Law Act" ((46) ibid. at 236.). Part VII of
the Family Law Act, or ss.63(1) and 64, construed in the light of the
amendments made in 1983 ((47) Family Law Amendment Act 1983.) and
1987 ((48) Family Law Amendment Act 1987.), conferred on the Family
Court jurisdiction with respect to the welfare of a child ((49)
Marion's Case (1992) 175 CLR at 257; cf. amendment of s.64 by s.63 of
the Family Law Amendment Act 1987 (Cth).). Their Honours held that
that jurisdiction was "similar to the parens patriae jurisdiction,
without the formal incidents of one of the aspects of that
jurisdiction, the jurisdiction to make a child a ward of court" ((50)
ibid. at 256.). The welfare jurisdiction, which is exercised in the
"best interests of the child" ((51) ibid. at 260.), was acknowledged
to have limits on its scope ((52) ibid. at 261.). However, if the two
jurisdictions be similar, it is impossible to say what those limits are
((53) ibid. at 258.). The powers of the Court exercising the welfare
jurisdiction were said to be greater than the powers possessed by
parents or guardians ((54) ibid. at 259, 302, cf. 282-283.). Their
Honours held that the Family Court had power to make a sterilization
order even though parents and guardians could not give a valid consent
to the operation ((55) ibid. at 259.).
18. The majority judgment then turned to the constitutional
implications of holding that the Family Law Act invested the Family
Court with jurisdiction to authorize sterilization. Their Honours
said ((56) ibid. at 261.):
"So long as an order of the Family Court is constitutional,The effect of their Honours' view on the operation of a law of the
there can be no limitation on the Court's powers emanating
from the need to preserve the scope of State legislative
powers. To hold otherwise would be, as counsel for the
Commonwealth said, to take the law back beyond the
Engineers' Case ((57) Amalgamated Society of Engineers v. Adelaide
Steamship Co. Ltd. [1920] HCA 54; (1920) 28 CLR 129.).
It is clear enough that a question of sterilization of a
child of a marriage arises out of the marriage relationship
and that the sterilization of a child arises from the
custody or guardianship of a child. Therefore,
jurisdiction to authorize a sterilization is within the
reach of power of the Commonwealth, quite apart from the
operation of s.122 of the Constitution." ((58) The reference to
s.122 flows from the fact that Marion's Case concerned a proposed
sterilization to be carried out in the Northern Territory.)
19. The present majority, building on the reasoning in Marion's Case,
holds that s.35(1) of the Guardianship Act (hereafter "s.35(1)") which
prohibits the carrying out of a procedure for the sterilization of a
child of L's age without the consent of the Guardianship Board is
inconsistent with the provisions of Pt VII and is, to the extent of
the inconsistency, invalid by reason of s.109 of the Constitution.
The inconsistency is found in the prohibition by s.35(1) which would
preclude or render ineffective an order authorizing the sterilization
of an incompetent child aged 16 years or more, being a child of a
marriage.
20. The steps which I would identify in this combined reasoning are as
follows:
1. The Criminal Code Act 1983 (N.T.) prohibited the proposed
sterilization of Marion unless an authority were lawfully granted.2. Parents and guardians have no power to consent to non-therapeutic
sterilization of an incompetent child.3. The power to authorize the non-therapeutic sterilization of
an incompetent child is reserved to a court as a "procedural4. If a court validly authorizes sterilization, the application of the
safeguard" ((61) ibid. at 249.).
force involved in sterilizing the child does not amount to an5. The welfare jurisdiction of the Family Court is similar to
unlawful assault for the purposes of the Criminal Code Act 1983
(N.T.) and the carrying out of the sterilization is lawful.
the parens patriae jurisdiction but is shorn of the "formal6. A State law forbidding the non-therapeutic sterilization of an
incidents" ((62) ibid. at 256.) of the jurisdiction to make a
child a ward of court. It empowers the Family Court to authorize
the non-therapeutic sterilization of an incompetent child even
though the parents or guardians of the child are incapable of
consenting to that procedure.
incompetent child is inconsistent with the conferral of the welfare7. Therefore s.35(1), as a State law, is ineffective to prevent the
jurisdiction carrying the power to authorize such a procedure,
the inconsistency being to the extent that that jurisdiction is
exercised to grant an authorization.
exercise of that jurisdiction by the Family Court in the case of L.For reasons which I have stated in Marion's Case, I agree with steps 1
Step 3: The availability of a curial power to authorize
non-therapeutic sterilization.21. In construing "welfare" in Pt VII in order to ascertain whether it
22. The principle that no new power should be assumed by a court is
not a mere relic of antiquarian law ready for overturning. It is at
the heart of the political and constitutional theory of the separation
of powers and thus an important guarantee of a free society. If
courts were able to assume powers which are neither part of their
inherent or traditional jurisdiction nor part of a jurisdiction
conferred by the legislature, the assumed powers would be despotic,
uncontrolled by legislative prescription or other law. Take the power
in question in this case. If the general law protects the physical
integrity of incompetent children and prohibits their parents or
guardians from subjecting them to non-therapeutic sterilization, it is
indeed a curious thing that a court should so interpret "welfare" as
to assert a power to authorize their subjection to that procedure,
declaring the power to be a "procedural safeguard" of the child's
welfare. The safeguardian of the incompetent child would assume a
power to subject her to sterilization, even against the objection of
parents or guardians, and the power is subject to no rule; it is
governed only by the judge's opinion that it is in the child's "best
interests" to do so.
23. Moreover, it would be questionable legal policy to assert a power
governed by such a wide discretion to authorize the invasive and
irreversible procedure of sterilization. True it is that the exercise
of many novel discretionary powers come to be guided by precepts
derived from experience in their exercise ((67) United Engineering
Workers' Union v. Devanayagam (1968) AC 356 at 384C per Lord Guest and
Lord Devlin.), but the diversity of values and circumstances which
would affect decisions to make sterilization orders precludes any
realistic expectation that decisions would not be made according to the
idiosyncratic opinion of individual judges.
Step 5: The parens patriae jurisdiction, the welfare
jurisdiction and the effect of State law.24. A court in which the parens patriae jurisdiction is vested
" The origin of the wardship jurisdiction is the duty ofWhere a child is made a ward of court, the court itself assumes
the Crown to protect its subjects and particularly children
who are the generations of the future. It is exercised
by the courts on behalf of the Crown: see in In re X (A
Minor) (Wardship: Jurisdiction) ((74) (1975) Fam 47 at 52 per Latey
J). The machinery for its exercise is an application to make the
child a ward of court. Thereafter, the court is entitled and bound
in appropriate cases to make decisions in the interests of
the child which override the rights of its parents.
Furthermore, the court is entitled, and bound in
appropriate cases, to make orders affecting third parties
which the parents could not themselves have made."
" I am of the clear opinion that, while the prerogativeAnd, in In re W. ((77) (1985) AC 791 at 807. See also In re Mohamed
jurisdiction of the court in wardship cases remains, the
exercise of that jurisdiction has been and must continue
to be treated as circumscribed by the existence of the
far-ranging statutory code which entrusts the care and
control of deprived children to local authorities. It
follows that the undoubted wardship jurisdiction must not
be exercised so as to interfere with the day-to-day
administration by local authorities of that statutory
control."
"Although the prerogative jurisdiction of the High Court in
wardship cases remains, nevertheless the exercise of that
jurisdiction has been and must continue to be treated as
circumscribed by the existence of the statutory code.
Therefore, where the court perceives that the action sought
of it is within the sphere of discretion of the local
authority, there is generally no case for the existence of
a wardship order. It is not the function of the High Court
to supersede the statutory code, or to control the exercise
by the local authority of discretions committed by
Parliament to that body, or to supervise the exercise of
the statutory powers of the local authority, except within
the limits of judicial review."
25. In principle, no prerogative power can be exercised contrary to
statute and the historical transmogrification of the parens patriae
power into a curial jurisdiction is no exception. In In re W. ((78)
(1985) AC at 802.), Lord Scarman declared one of the basic rules of
our law to be "the obedience of our courts to the enacted will of
Parliament". If it be right to say, as the majority judgment in
Marion's Case said, that the welfare jurisdiction vested in the Family
Court is "similar to the parens patriae jurisdiction", it would not
confer on the court the power to make an order authorizing the
sterilization of a child in New South Wales contrary to the provisions
of s.35(1). "A Court of law", said Earl Loreburn LC ((79)
Attorney-General v. Birmingham, Tame, and Rea District Drainage Board
(1912) AC 788 at 795.), "has no power to grant a dispensation from
obedience to an Act of Parliament".
26. This Court and the Family Court are bound by the laws of the
State ((80) Constitution s.118 and see also the Judiciary Act 1903
(Cth), s.79.) except to the extent to which a State law is
inconsistent with a valid law of the Commonwealth. If there be no
inconsistency between Pt VII of the Family Law Act and s.35(1) of the
Guardianship Act, the Family Court is bound by s.35(1). In that case,
the analogy between the welfare jurisdiction and the parens patriae
jurisdiction would not lead to the conclusion that an order can be made
in flat contradiction of s.35(1). Hence the welfare jurisdiction could
not be held to extend to the making of a sterilization order.
27. The powers conferred by the vesting of the welfare jurisdiction
are discretionary. In vesting that jurisdiction, Pt VII does not
expressly authorize the Family Court to disregard the provisions
of applicable State laws. Nor does the general subject matter of
"welfare" impliedly authorize that Court to do so. It would be a
misconception of the effect of the Constitution to treat the grant of
a general discretionary power under a Commonwealth law as authorizing
the repository of the power to disregard an applicable law of a State.
The Constitution prescribes the priority of conflicting Commonwealth
and State laws ((81) Covering cl.5 and the Constitution, s.109.) and
creates an integrated system of Australian law applicable to a given
set of circumstances. All the provisions of that integrated system of
law must be observed by the repositories of discretionary powers,
whether the discretion be derived from the laws of the Commonwealth or
the laws of a State. Of course, by reason of s.109 of the
Constitution, a valid law of the Commonwealth which confers a
discretionary power may provide, or the subject matter of the power may
indicate, that the repository of the power is free, in exercising the
discretion, to disregard the laws or some of the laws of a State.
28. Part VII contains no indication that the Parliament intended the
welfare jurisdiction to be exercised in disregard of the applicable
laws of a State. In the present case, there is no reason why s.35(1)
should be thought to be inconsistent with the exercise of the welfare
jurisdiction save a view that s.35(1) is inconsistent with the welfare
of a child. That is a view which, in my respectful opinion, a court
cannot reach with respect to a child to whom Pt 5 of the Guardianship
Act applies. Bearing in mind that the scope of the welfare
jurisdiction is to be ascertained by construing the term "welfare" in
s.64(1) of the Family Law Act, it would be erroneous to conclude that
the welfare jurisdiction comprehends a power to authorize what s.35(1)
prohibits. If any assumption is to be made in construing "welfare",
it is that s.35(1) prohibits what is inimical to the welfare of the
child.
29. Obedience to s.35(1) is owed not only by the parents of a child
but by all New South Wales hospitals, medical and para-medical
personnel, and any others who might otherwise be concerned in a
proposal to sterilize an incompetent child. If the welfare
jurisdiction empowers a judge of the Family Court to dispense all of
these people from obedience to s.35(1), the welfare jurisdiction is
not only wider than the parens patriae jurisdiction; it is different
in kind. The cases in which the courts, in exercise of the parens
patriae jurisdiction, have made orders which parents or guardians
have no power to make are cases in which third parties, who are
contemplating what would otherwise be a lawful act, have been
restrained from acting to the detriment of a ward of court. The
parens patriae jurisdiction has never been exercised to authorize
third parties to commit a criminal act. It is axiomatic that there is
no such jurisdiction.
30. One of the distinctive characteristics of a judicial proceeding is
that the tribunal before which the proceeding is pending exercises its
jurisdiction according to laws which bind it and the parties before it
equally ((82) Giese v. Williston (1963) 37 DLR (2d) 447 at 448.).
Section 35(1) binds Mrs P, L and any other person in New South Wales
who appears before the Family Court. Section 35(1) is the law of New
South Wales prior to any exercise by the Family Court of its welfare
jurisdiction and it remains the law thereafter. If it bound the
parties when the proceeding commenced, how do they cease to be bound
thereafter? No order made by the Family Court can alter the law of New
South Wales. It does not have the effect of a law of the Commonwealth
or of an industrial award ((83) See post at 34ff.) made under
Commonwealth law pursuant to which rights and obligations under a State
law are changed and a new set of rights and obligations are created.
If the welfare jurisdiction extends to the making of a sterilization
order, s.35(1) must first be deprived of the force of law. That can
be effected only by a law of the Commonwealth with which s.35(1) is
inconsistent.
31. Unless Pt VII is a law with which s.35(1) is inconsistent, s.35(1)
stands as a valid State law binding on the Family Court. The present
case is, in this respect, distinguishable from Marion's Case where
s.26(1)(d) of the Criminal Code (N.T.) allowed for the lifting of the
general prohibition imposed by the Code against the non-consensual
application of force to the person of another. Under that Code, any
repository of the power to authorize sterilization could lift the
prohibition. The majority held that the Family Court, having power
to grant an authorization, could appoint a person "for the limited
purpose of consenting" and that person's consent would, by reason
of s.26(1)(d) of the Code, lift the prohibition against the
non-consensual application of force to the incompetent child ((84)
(1992) 175 CLR at 261-262.). But consent by a person other than the
Board does not lift the prohibition on sterilization imposed by
s.35(1). That prohibition can be lifted only by denying to s.35(1) the
force of law.
Step 6: Inconsistency between Pt VII and s.35(1)
32. There is no necessary inconsistency between the two laws. If the
welfare jurisdiction is understood as conferring discretionary powers
to be exercised in accordance with laws of general application, the
welfare jurisdiction cannot be held to extend to the making of an
order inconsistent with s.35(1). The only source of possible
inconsistency arises if the view is taken that non-therapeutic
sterilization is or may be for the welfare of an incompetent child
and that view is translated into a determination that the welfare
jurisdiction extends to the making of a sterilization order.
33. If the welfare jurisdiction is to be held to extend to the making
of a sterilization order in respect of a child in New South Wales,
s.35(1) must be overridden - not by the order itself but by the law
(relevantly, Pt VII) which empowers the court to make the order. An
analogy - albeit an imperfect analogy - can be found in the operation
of a federal industrial award made in exercise of an arbitral power
conferred by a law enacted under s.51(xxxv) of the Constitution. In
Metal Trades Industry Association v. Amalgamated Metal Workers' and
Shipwrights' Union ((85) [1983] HCA 28; (1983) 152 CLR 632 at 648-649.), Mason,
Brennan and Deane JJ said:
" Because it has been thought that an award made pursuantSection 65 of the Act provided:
to the Conciliation and Arbitration Act 1904 (Cth), as
amended, ('the Act') is not a law of the Commonwealth
within the meaning of s.109, inconsistency between an award
and a State law must be reduced to inconsistency between
the State law and the provision in the Act authorizing the
making of the award so as to constitute it an exhaustive
and exclusive regulation of the relevant subject-matter
(T.A. Robinson and Sons Pty. Ltd. v. Haylor ((86) [1957] HCA 76; (1957) 97 CLR 177
at 182.). In this respect s.65 of the Act (s.30 of the Act of
1904) is of paramount importance for it is the expression of the
statutory intention that the arbitrator's exercise of power
is to operate to the exclusion of any State law."
" Where a State law, or an order, award, decision orThen, in Dao v. Australian Postal Commission ((87) [1987] HCA 13; (1987) 162 CLR 317
determination of a State Industrial Authority, is
inconsistent with, or deals with a matter dealt with in, an
award, the latter prevails and the former, to the extent of
the inconsistency or in relation to the matter dealt with,
is invalid."
" Illustrative though these cases are of the operation ofThese cases deny that the exercise of a power by its statutory
s.109 of the Constitution in a situation where it is said
that a State law is inconsistent with the provisions of an
award made or agreement registered under the Conciliation
and Arbitration Act, it must be remembered that in those
circumstances the question of inconsistency can arise only
because of the provisions of s.65 of that Act. The cases
therefore are to be understood in the way explained by the
Court in T.A. Robinson and Sons Pty. Ltd. v. Haylor and
discussed again in the Metal Trades Case to which we have
referred ((88) (1983) 152 CLR at 641-642, 646, 648-652.)."
34. The present case is different. In the cases under the
Conciliation and Arbitration Act, s.65 expressed a statutory intention
that the award should operate to the exclusion of State law.
Part VII, by contrast, neither purports to make an order of the Family
Court a law of the Commonwealth nor provides that an order should
operate to the exclusion of State law. There is nothing in Pt VII
which is comparable with s.65. However, if there were such a
provision, it would have to be supported by one or more of the
constitutional heads of legislative power. No doubt the Parliament
can confer on a federal court jurisdiction to make an order
inconsistent with a State law, but only by an enactment which, in
excluding the application of the State law, finds support for the
exclusion in a head of legislative power.
Constitution, s.51(xxi) and (xxii)
35. The only relevant head of legislative power which might support a
legislative exclusion of s.35(1) is the marriage power ((89)
Constitution, s.51(xxi).) perhaps together with the power with respect
to divorce and matrimonial causes ((90) Constitution, s.51(xxii).).
These powers were supplemented by powers referred to the Commonwealth
by the Commonwealth Powers (Family Law - Children) Act 1986 (N.S.W.)
but the powers referred by that Act related to custody and guardianship
of and access to children, not to their "welfare" ((91) Commonwealth
Powers (Family Law - Children) Act, s.3(1)(b).) and the powers of the
Guardianship Board were clearly outside the powers referred ((92)
ibid., s.3(2)(d).).
36. The marriage power extends to the creation, declaration and
definition of the rights and duties arising out of the marriage
relationship including rights to the custody or guardianship of or
access to a child of the marriage ((93) Vitzdamm-Jones v.
Vitzdamm-Jones [1981] HCA 8; (1981) 148 CLR 383 at 414; Fountain v. Alexander [1982] HCA 16; (1982)
150 CLR 615 at 625-626, 631-632, 646-647; V. v. V. [1985] HCA 45; (1985) 156 CLR 228
at 232-233.) and the authority of parties to a marriage over, or their
obligations to protect and nurture, a child of their marriage ((94) In
the Marriage of Cormick [1984] HCA 79; (1984) 156 CLR 170 at 175-176; Reg. v. Cook; Ex
parte C. [1985] HCA 47; (1985) 156 CLR 249 at 257; Re F.; Ex parte F. (1986) 161 CLR
376 at 399-400.). But the marriage power does not support a law
governing a subject matter that does not arise out of the marriage
relationship ((95) Reg. v. Lambert; Ex parte Plummer [1980] HCA 52; (1980) 146 CLR
447 at 456-457; Dougherty v. Dougherty [1987] HCA 33; (1987) 163 CLR 278 at 288, 293.).
Nor does the marriage power support the exclusion of a State law
which binds the parties to a marriage and the children of a marriage in
common with other members of the community and governs a discrete
subject matter that does not arise out of the marriage relationship.
In Reg. v. Lambert; Ex parte Plummer ((96) (1980) 146 CLR at 461.)
Stephen J said:
"In our federation, the Commonwealth has some legislativeI respectfully agree. State laws governing education or criminal
power, concurrently with the States, with respect to the
custody of infants. At the same time the States possess
and exercise wide powers to legislate for the welfare of
children, including the manner of their upbringing. From
this distribution of legislative powers collisions between
State and Federal laws may result, but the occasion for
them will be much reduced if custody is recognized for what
it is: the right of the guardian to make and carry out
such choices concerning a child's upbringing as, in the
case of any particular child, the current state of the
general law, whether State or Federal, permits. State
laws which only operate to restrict the choices open to
guardians regarding children's upbringing, being laws which
apply generally to all members of the community or to all
children in the community, can then be seen to provide no
occasion for collision. There will then, for example, be
no question of conflict between State educational or
criminal laws and a federal law under which custody is
given to a particular parent: State laws which prevent
that parent from keeping his child at home, untaught, or
from being sent to a reformatory, will then not be seen to
conflict with the parent's federally conferred custody."
37. In Marion's Case ((97) (1992) 175 CLR at 261.) the majority judgment
cited what Gibbs CJ said in Fountain v. Alexander ((98) (1982) 150
CLR at 627.):
"The power of the Parliament to make laws with respect toTheir Honours thought it "clear enough" that a question of
marriage does not extend to laws for the protection or
welfare of the children of a marriage except in so far as
the occasion for their protection or welfare arises out
of, or is sufficiently connected with, the marriage
relationship."
38. Neither the marriage power nor the divorce and matrimonial causes
power would support a law which excludes the operation of a law
governing the non-therapeutic sterilization of all incompetent
children. If Pt VII purported to exclude the operation of s.35(1), to
that extent Pt VII would lack constitutional support.
39. For these reasons, I would therefore answer question 1: No.
40. It is unnecessary to answer the other questions.
DAWSON J This case raises the question whether the Family Law Act
1975 (Cth) empowers the Family Court to make an order overriding the
prohibition imposed by the Guardianship Act 1987 (N.S.W.) against
the sterilization of a person over the age of sixteen years who is
incapable of giving consent where that treatment is necessary neither
to save that person's life nor to prevent serious damage to that
person's health. This case concerns L, a sixteen year old girl who
is intellectually disabled, with the mental ability of a child between
three and seven years old. Her mother, who has custody of L, has
sought an order from the Family Court authorizing all necessary
consents to an operation which will cause L to cease to menstruate and
permanently prevent her from becoming pregnant.
2. The prohibition imposed by the Guardianship Act is part of a wider
scheme dealing with the medical or dental treatment of persons under
a disability. The relevant provisions are set out in the judgment of
Mason CJ, Deane, Toohey and Gaudron JJ and it is unnecessary to
repeat them. It is sufficient to say that the treatment which the
mother seeks for L is not necessary to save L's life or to prevent
serious damage to her health, and for that reason the procedure for
obtaining the consent of the New South Wales Guardianship Board, which
would otherwise apply under the New South Wales Guardianship Act, is
unavailable ((99) s.45(2).). It should also be observed that the
prohibition is imposed against the person carrying out the treatment
((100) s.35(1).). That is to say, it is imposed upon the medical
practitioner or other person who would carry out the treatment if the
requisite consent could be given.
3. In Secretary, Department of Health and Community Services v.
JW.B. and S.M.B. (Marion's Case) ((101) [1992] HCA 15; (1992) 175 CLR 218.) this
Court held that under Pt VII of the Family Law Act the Family Court has
a jurisdiction with respect to the welfare of a child akin to the
parens patriae jurisdiction originally vested in the English Court of
Chancery. It is a jurisdiction which does not, in the case of the
Family Court, require a child to be made a ward of court as a
prerequisite to its exercise ((102) ibid. at 257, 294, 317-318.).
Section 63(1) confers jurisdiction on the Family Court in relation to
matters arising under Pt VII. Those matters are not specified, but
s.64(1) sets out the factors to be considered in proceedings in
relation to "the custody, guardianship or welfare of, or access to, a
child".
4. It was held in Marion's Case that the Family Court's jurisdiction
extended to authorizing the sterilization of an intellectually
disabled child in the Northern Territory. The effect of the
authorization was that the treatment did not amount to an unlawful
assault which, in the absence of authority, it might have been ((103)
See Criminal Code Act 1983 (N.T.), ss.26, 187, 188.). The treatment
was not otherwise prohibited in the Northern Territory.
5. It was recognized in Marion's Case that the child welfare
jurisdiction of the Family Court has limits ((104) (1992) 175 CLR at
257, 294, 318.). Those limits do not appear from the Act itself.
Section 64(1), for example, simply provides:
"In proceedings in relation to the custody, guardianshipThe Family Court's power is limited by the Constitution rather than
or welfare of, or access to, a child:
...
(c)... the court may make such order in respect of
those matters as it considers proper, including an
order until further order."
6. There should be no need to point out that that power is not a
power to make laws with respect to children, the welfare of children,
or even the welfare of children of a marriage. But that is something
which tends to be forgotten due to the wide terms in which the Family
Law Act is cast.
7. A law is not a law with respect to marriage simply because it
deals with the welfare of a child of a marriage. As Gibbs CJ said
in Fountain v. Alexander ((106) [1982] HCA 16; (1982) 150 CLR 615 at 627; see also
Marion's Case (1992) 175 CLR at 261.):
"The power of the Parliament to make laws with respect toIn deciding whether a law dealing with the welfare of the children of
marriage does not extend to laws for the protection or
welfare of the children of a marriage except in so far as
the occasion for their protection or welfare arises out
of, or is sufficiently connected with, the marriage
relationship."
8. This was recognized in Reg. v. Lambert; Ex parte Plummer ((107) [1980] HCA 52; (1980)
146 CLR 447 at 461 per Stephen J; see also ibid. at 451, 457, 468,
474-475, 491; Gazzo v. Comptroller of Stamps (Vict.) [1981] HCA 73; (1981) 149 CLR 227
at 238-239, 244, 272.):
"In our federation, the Commonwealth has some legislative
power, concurrently with the States, with respect to the
custody of infants. At the same time the States possess
and exercise wide powers to legislate for the welfare of
children, including the manner of their upbringing. From
this distribution of legislative powers collisions between
State and Federal laws may result, but the occasion for them
will be much reduced if custody is recognized for what it
is: the right of the guardian to make and carry out such
choices concerning a child's upbringing as, in the case of
any particular child, the current state of the general law,
whether State or Federal, permits. State laws which only
operate to restrict the choices open to guardians regarding
children's upbringing, being laws which apply generally to
all members of the community or to all children in the
community, can then be seen to provide no occasion for
collision. There will then, for example, be no question of
conflict between State educational or criminal laws and a
federal law under which custody is given to a particular
parent: State laws which prevent that parent from keeping
his child at home, untaught, or from being sent to a
reformatory, will then not be seen to conflict with the
parent's federally conferred custody."
9. The prohibition imposed by the Guardianship Act against the
sterilization of a person who is incapable of consenting, where that
treatment is necessary neither to save that person's life nor to
prevent serious damage to that person's health, is a prohibition
of general application in New South Wales. It is not confined to
children, let alone children of a marriage. Nor is it a prohibition
which can be lifted by consent, whether it be the consent of the
parents of a child of a marriage or otherwise. The question is
whether the Commonwealth has conferred, or could confer, upon the
Family Court a welfare jurisdiction to remove the prohibition by
giving its authorization or consent.
10. A jurisdiction such as that conferred upon the Family Court to
make orders for the welfare of a child of a marriage is a jurisdiction
which must be exercised in accordance with existing law, both State
and Federal. The Family Court is not a legislative body and its
orders cannot have the force of legislation: the exercise of judicial
power is not the exercise of legislative power. The Family Court
is not in the position of a body such as the Australian Industrial
Relations Commission which exercises arbitral rather than judicial
power and whose awards are given legislative force ((108) See
Industrial Relations Act 1988 (Cth), s.152.). If an order of the
Family Court is inconsistent with an existing, valid State law, it does
not constitute an inconsistent Commonwealth law which, under s.109 of
the Constitution, prevails to the extent of the inconsistency. The
Family Court order is simply contrary to law and invalid ((109)
Marion's Case (1992) 175 CLR at 286-287 per Brennan J). Of course,
by reason of s.109 of the Constitution, a State law cannot confer a
jurisdiction which is inconsistent with the existence of a jurisdiction
conferred upon the Family Court by the Family Law Act ((110) See Felton
v. Mulligan [1971] HCA 39; (1971) 124 CLR 367 at 372, 394, 412-413; and cf. Cowen and
Zines, Federal Jurisdiction in Australia, 2nd ed. (1978) at 224-228.) .
Nor can a State jurisdiction be exercised inconsistently with an
exercise of the jurisdiction of the Family Court ((111) See Victoria v.
The Commonwealth ("the Kakariki") [1937] HCA 82; (1937) 58 CLR 618.). But that is
not this case, where the order sought from the Family Court would be
inconsistent with the prohibition imposed by the New South Wales Act.
11. Furthermore, the jurisdiction conferred upon the Family Court to
make orders with respect to the welfare of a child is confined by the
requirement that the occasion for the exercise of the jurisdiction
must be sufficiently connected with the marriage relationship to bring
the jurisdiction within constitutional power.
12. If a State law establishes a regime which applies generally,
without regard to any marriage relationship, the Family Court cannot
exercise its welfare jurisdiction inconsistently with that regime.
The law of general application severs the connection between its
subject-matter and the marriage relationship ((112) Reg. v. Lambert; Ex
parte Plummer (1980) 146 CLR at 490.). So, for example, the Family
Court cannot make a custody order inconsistent with a State law for the
imprisonment of juvenile offenders. The State law operates generally,
irrespective of the marriage relationship. Its subject-matter, the
treatment of juvenile offenders, is not connected with the marriage
relationship. A Commonwealth law freeing a juvenile offender would not
be a law with respect to marriage and a Family Court order purporting
to do so would likewise be invalid ((113) ibid. at 451, 457, 460-461,
468, 474-475, 491.).
13. In this case a State law of general application establishes a
regime under which decisions about dental or medical treatment of
persons incapable of consenting to the treatment are made irrespective
of any marriage relationship. The Family Court therefore cannot make
an order in the exercise of its welfare jurisdiction which would be
inconsistent with that regime. The State regime has severed the
connection between consent to dental and medical operations and
marriage. Dental and medical operations on incompetent patients are
now dealt with by a State law of general application made in the
exercise of legislative power which the State Parliament has but the
Commonwealth Parliament does not.
14. The Commonwealth Parliament does have power to make laws with
respect to marriage and thus for the welfare of children of a marriage
where that aspect of their welfare which is dealt with is sufficiently
connected with the marriage relationship. The Parliament may confer
upon the Family Court jurisdiction to make orders with respect to the
welfare of children of a marriage only to that extent. It is in this
way that a jurisdiction akin to a parens patriae jurisdiction has
been conferred upon the Family Court. But the general words of
Pt VII of the Family Law Act must be read down to bring them within
constitutional limits. When read down, there is no inconsistency
between Pt VII and the Guardianship Act. The jurisdiction of the
Family Court with respect to the welfare of a child of a marriage does
not extend to those matters placed under the regime established by the
Guardianship Act.
15. Because the Family Court must exercise its welfare jurisdiction
consistently with the law, that jurisdiction has been likened to the
traditional parens patriae jurisdiction of a court of equity. The
latter jurisdiction is exercised for the benefit or welfare of a
child, but the court does not exercise its jurisdiction, indeed cannot
do so, save in accordance with any applicable law. If a statute
clearly gives to an authority, other than the court, responsibility
for a matter otherwise within the parens patriae jurisdiction, then
the court's jurisdiction is to that extent restricted ((114) See In re
A.B. (An Infant) (1954) 2 QB 385; In re M. (An Infant) (1961) Ch 328; A
v. Liverpool City Council (1982) AC 363; In re W. (1985) AC 791; In re
M. and H. (Minors) (1990) 1 AC 686; In re JS. (A Minor) (1990) Fam
182; In re R. (Wardship: Criminal Proceedings) (1991) Fam 56 at 66.).
16. In Marion's Case there was no legislation of the Northern
Territory regulating the sterilization of a child in Marion's
situation. The matter was not the subject of Northern Territory
legislation. Responsibility for the child in that regard remained
with the partners to the marriage of which she was a product. Lawful
authority for what would otherwise have been unlawful assault was
contemplated by the Northern Territory Criminal Code. In those
circumstances the jurisdiction of the Family Court was held to extend
to the giving of the necessary authority. There was a connection in
those circumstances between the authorization of the treatment and
the marriage relationship. It is impossible to discern a similar
connection in the present circumstances where the relevant
responsibility has been removed by law from the parents of the
incapable person.
17. For these reasons I would answer no to the first question in the
case stated. It is unnecessary to answer the other questions.
McHUGH J The facts, statutory provisions and questions in the case
stated are set out in the judgment of Mason CJ, Deane, Toohey and
Gaudron JJ
2. The decision of this Court in Secretary, Department of Health and
Community Services v. JW.B. and S.M.B. (Marion's Case) ((115) [1992] HCA 15; (1992)
175 CLR 218 at 256, 294, 318.) establishes that s.64 of the Family Law
Act 1975 (Cth) ("the Act"), which is contained in Pt VII of that Act
under the heading "Children", confers a jurisdiction on the Family
Court that is similar to the parens patriae jurisdiction exercised by
the Supreme Courts of the States. Section 64 relevantly provides that
in "proceedings in relation to the ... guardianship or welfare of ... a
child ... the court may make such order in respect of those matters as
it considers proper". Marion's Case also establishes that the powers
conferred by that jurisdiction extend to the making of an order that
authorises the sterilisation of a child of a marriage. For all legal
purposes, that authority is as effective as a consent given by a person
of full age and capacity in respect of interferences with that person's
own body. Because the jurisdiction is conferred to enhance the welfare
of the child, it necessarily follows that the Family Court also has
power to specify which medical practitioner or practitioners may
perform the sterilisation procedure. However, the central issue raised
by the case stated is whether or not an order made under the Act
authorising a person to carry out that procedure also authorises that
person to carry out the procedure without complying with the provisions
of s.35 of the Guardianship Act 1987 (N.S.W.).
3. The jurisdiction conferred on the Family Court by Pt VII of the
Act is exclusive of the jurisdiction of the courts of the States.
Section 63A of the Act provides that: "Proceedings that may be
instituted under this Part shall not ... be instituted otherwise that
under this Part." The term "proceedings" is defined in s.4 of the
Act to mean "a proceeding in a court". Although the Act contains
exceptions to this grant of exclusive jurisdiction, none is relevant
here. Section 63A, therefore, evinces a legislative intention
that, subject to the defined exceptions, no State law can confer
jurisdiction on a State court in matters concerning the welfare of
a child of a marriage. To the extent that a State law purports to
confer jurisdiction in such matters, it is invalid ((116) Constitution,
s.109.). The result is that, whether or not proceedings in relation
to the welfare of a child of a marriage have been instituted in the
Family Court, the courts of the States have no jurisdiction to hear
such matters unless the matter comes within the defined exceptions to
the exclusive jurisdiction of the Family Court. Consequently, s.35 of
the Guardianship Act is invalid in so far as it purports to confer
jurisdiction on the Supreme Court of New South Wales to authorise
the carrying out of a sterilisation procedure on a child of a
marriage ((117) Ex parte McLean [1930] HCA 12; (1930) 43 CLR 472 at 485-486; Ansett
Transport Industries (Operations) Pty. Ltd. v. Wardley [1980] HCA 8; (1980) 142 CLR
237 at 260; Commercial Radio Coffs Harbour v. Fuller [1986] HCA 42; (1986) 161 CLR
47 at 56.).
4. However, because the term "proceedings" is defined to mean court
proceedings, it is impossible to construe either s.64 or Pt VII of the
Act as intending to prevent a State tribunal or authority that is not
a court from determining matters in respect of the welfare of a child.
Such a conclusion could be reached only if s.64 or Pt VII could be
interpreted as meaning that only the Family Court had jurisdiction to
determine matters in respect of the welfare of a child of a marriage.
The existence of jurisdiction in the Family Court to hear and
determine an application for consent to the sterilisation of a child
of a marriage is not by itself sufficient to deprive the Guardianship
Board ("the Board") of jurisdiction to hear such an application. In
Victoria v. The Commonwealth ((118) ("the Kakariki") [1937] HCA 82; (1937) 58 CLR
618.), the Court held a State Act valid although both it and a federal
Act gave authority to remove the same wrecked vessel from waters within
the jurisdiction of the State. Latham CJ said ((119) ibid. at 626.)
:
"The alleged inconsistency will exist only if theAccordingly, unless proceedings before the Board can be characterised
Commonwealth section is interpreted as meaning not only that
the Minister can, but also that no one else can, remove the
wreck. I see no reason for adopting such an interpretation
of the section. The Commonwealth section simply confers a
power upon the Minister. It certainly does not say in
express terms that no one else shall have a similar power.
There is, in my opinion, nothing in the subject matter which
makes it necessary to imply a provision to that effect.
There is no inconsistency in two persons or several persons
having power to remove the same wreck."
5. Although the Board exercises jurisdiction in respect of matters
that are within the jurisdiction of the Family Court and the Supreme
Court of New South Wales and has some of the trappings of a court, it
is an administrative body and not a court. The Board is to consist
of at least 10 members ((120) Guardianship Act, s.49(2).). At least
three of them are to be legal practitioners ((121) s.49(3)(a).). At
least three of them are to be persons who have experience in assessing
or treating persons to whom Pt 3, 4 or 5 of the Guardianship Act
relates ((122) s.49(3)(b).). At least four persons are to be persons,
not falling within these two categories, who "have had experience with
persons to whom Pt 3, 4 or 5 relates" ((123) s.49(3)(c).). For the
purpose of exercising its functions, the Board is to be constituted by
no fewer than three and no more than five of its members ((124)
s.51(1).). When it exercises its functions the Board must contain at
least one member from each of the three categories ((125) s.51(1).).
In the conduct of its proceedings, the Board is not bound by the rules
of evidence "but may inform itself on any matter in such manner as it
thinks fit" ((126) s.55(1).). The proceedings are to be conducted
"with as little formality and legal technicality and form" ((127)
s.55(2).) as is possible. The Board is not to make a decision in
respect of an application until it has used its best endeavours to
bring the parties to settlement ((128) s.66.). The Board may, on its
own motion, review any guardianship order ((129) s.25(1).).
6. The foregoing matters point strongly to the Board being an
administrative body and strongly against it being a court ((130)
Attorney-General v. British Broadcasting Corporation (1981) AC 326 HL.).
Furthermore, the nature of the proceedings under Pt 5 of the
Guardianship Act point irresistibly to the conclusion that the Board
is not a court when it determines an application under that Part. In
making a determination under that Part, the Board is not declaring
any pre-existing rights of the parties in litigation before it. Its
duty is to refuse to consent to the carrying out of treatment unless
it is satisfied "that the treatment is the most appropriate form of
treatment for promoting and maintaining the patient's health and
well-being" ((131) s.45.).
7. Certainly, some of the powers and procedures of the Board resemble
those of the established courts. Thus, a person may be represented
before the Board by a barrister or solicitor ((132) s.58(1).). A
party to proceedings may call and examine any witness, cross-examine
any witness called by another party, give evidence on oath, produce
documents and exhibits to the Board, and "adduce, orally or in
writing, to the Board such matters, and address the Board on such
matters, as are relevant to the proceedings" ((133) s.59.). The Board
may compel any person to appear before it to give evidence or to
produce any document that is relevant ((134) s.60.). The member
presiding at a sitting of the Board is to "cause a record to be kept of
any decision made at the sitting and of the reasons for that decision"
((135) s.71.). The reasons for the Board's decision with respect to
proceedings before it must be set out in writing and signed by the
presiding member ((136) s.68.). A party to proceedings before the
Board may appeal to the Supreme Court from any decision of the Board.
The appeal is as of right on a question of law and, by leave of that
Court, on any other question ((137) s.67.). When these matters are
weighed against the matters that tell against the Board being a court,
however, they are insufficient to lead to the conclusion that the Board
is a court when it exercises jurisdiction under Pt 5 of the
Guardianship Act.
8. Accordingly, the present case must be approached on the basis that
the Board as well as the Family Court has jurisdiction to hear and
determine an application of the kind involved in this case.
9. Although the Board retains jurisdiction to deal with matters
related to the welfare of a child of a marriage, the Board has no
power to make a determination that would prevent, or frustrate or
interfere with an order of the Family Court. If a law of the State
authorises a State tribunal to make an order which impairs or detracts
from the operation of an order of a court that is authorised by
federal law, the State law is inconsistent with the federal law for
the purpose of s.109 of the Constitution. The inconsistency is
between the federal law and the State law and not the order of the
federal court and the State law ((138) See T.A. Robinson and Sons Pty.
Ltd. v. Haylor [1957] HCA 76; (1957) 97 CLR 177 at 182; Metal Trades Industry
Association v. Amalgamated Metal Workers' and Shipwrights' Union [1983] HCA 28; (1983)
152 CLR 632 at 641-642, 648.). In the absence of a contrary
indication in the federal law, Parliament should be taken to have
intended that the exercise of an authority conferred by that law
should be exclusive of the laws of the States ((139) See Stock Motor
Ploughs Ltd. v. Forsyth [1932] HCA 40; (1932) 48 CLR 128 at 136; Victoria v. The
Commonwealth (1937) 58 CLR at 631; Carter v. Egg and Egg Pulp Marketing
Board (Vict.) [1942] HCA 30; (1942) 66 CLR 557 at 574-576; Reg. v. Winneke; Ex parte
Gallagher [1982] HCA 77; (1982) 152 CLR 211 at 217, 221, 231-232, 233.).
10. In the present case, the conclusion is irresistible that the
federal Parliament intended that, if the Family Court exercised its
power to consent to the sterilisation of a child of a marriage, the
exercise of that power was to be exclusive of the exercise of any
similar power invested in a State tribunal or authority. It is not
to be supposed that Parliament intended that a State tribunal or
authority could consent to the sterilisation of a child of a marriage
if the Family Court had refused to give its consent. Nor is it to be
supposed that, if State law also regulates the subject matter of the
order of the Family Court, federal Parliament intended that the order
of the Family Court was to be inoperative until a State tribunal or
authority also gave any relevant consent to the procedure. An order
of the Family Court that authorises the sterilisation of a child of a
marriage is intended to adjust the legal relationship that exists
between the child and all those persons affected by the operation of
the order. The order of the Family Court is intended to make lawful
conduct that at common law would otherwise be a crime against the
State and a civil wrong to the child. In the absence of an indication
to the contrary, it is not to be supposed that Parliament intended
that the orders of the Family Court were made subject to the operation
of the laws of the six States. If a law of the State would operate so
as to interfere with or vary the legal relationship established by the
order of the Family Court, whether directly or through an order of a
State tribunal or authority, the State law would be inconsistent with
the order and, consequently, the Act ((140) See Metal Trades Industry
Association (1983) 152 CLR at 642-643.).
11. Accordingly, once the Family Court makes an order under Pt VII
of the Act in respect of the sterilisation of a child of a marriage,
s.109 of the Constitution operates to invalidate any State law which
is inconsistent with the operation of Pt VII ((141) Victoria v. The
Commonwealth (1937) 58 CLR at 631.). Once the order is made, s.35 of
the Guardianship Act cannot validly operate so as to frustrate or
interfere with the set of legal relations established by that order.
Thus, the Board has no power or authority to make an order that would
alter or vary the relationship between the child and other persons
affected by the order. Nor can s.35 validly interfere with the right
of a person to carry out a sterilisation procedure in accordance with
the authority of an order of the Family Court. Once the order is made
that person is not affected by the prohibition in s.35 of the
Guardianship Act against carrying out medical treatment on a person to
whom Pt 5 of the Guardianship Act applies. The Guardianship Act cannot
forbid what the Act authorises or authorise what the Act forbids ((142)
Colvin v. Bradley Brothers Pty. Ltd. [1943] HCA 41; (1943) 68 CLR 151 at 160.).
12. During the argument in this Court, much attention was paid to
the question whether a federal court could make an order authorising
conduct that would otherwise be unlawful under State law. While there
is much to be said for the view that a grant of jurisdiction to a
federal court or authority should not be construed as authorising
that court or authority to make an order that is inconsistent with
the law of a State unless the grant does so expressly or by necessary
implication, that issue does not arise in this case. In making a
determination on an application such as is involved in the present
case, the Family Court has no duty to consider the provisions of s.35.
Its duty is to consider all the circumstances of the case and make
such order as it thinks is in the best interests of the child. Once
it has made that order, the effect of the order on State law is
determined by the intention of the Act. Because the intention of the
Act is that an order made under the Act is to regulate the matters
with which it deals to the exclusion of State law, s.35 cannot
constitutionally prevent, frustrate or interfere with the operation of
an order such as is sought from the Family Court in this case.
13. It was also contended that, if the Act authorised the Family
Court to make an order that was inconsistent with s.35(1) of the
Guardianship Act, the Act was inconsistent with Ch.III of the
Constitution. It was contended that such an authority would be
executive, and not judicial, in nature. However, the Act does not
purport to authorise the Family Court to suspend or override the
operation of State laws such as s.35. The Act invests the Family
Court with jurisdiction to make orders for the welfare of a child of
a marriage. When such an order is made, the intention of the Act is
that no State law is to prevent, frustrate or interfere with the
operation of the order. Section 109 of the Constitution, not the
Family Court, then suspends the operation of the State law.
14. I agree with the answers to the case stated that are proposed by
Mason CJ, Deane, Toohey and Gaudron JJ