Alternative Law Journal
|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Alternative Law Journal |
|
ADIVA SIFRIS[*] TANIA PENOVIC[#]
On 29 April 2004 the High Court of Australia handed down its decision in Minister of Immigration and Multicultural and IndigenousAffairs and B & Anor ('B High Court).[1] This was an appeal by the Minister from B & B and Minister for Immigration and Multicultural and Indigenous Affairs ('B Family Court)[2] (p 211) discussed by Adiva Sifris in the preceding article. Four issues were set out in the certificate of appeal which the Full Court granted as being important questions of law and public interest and which required the High Court's clarification.[3]
1.The scope of the 'welfare' jurisdiction of the Family Court under s 67ZC and/or s 68B of the FamilyLaw Act 1975, in particular, whether that jurisdiction extends to:
• determining the validity of the detention of a non citizen child (who is the child of a marriage) under s 196 of the Migration Act 1958, and
• making orders directing officers in the performance of their functions under the Migration Act in relation.
to such a child.
2.Whether the provisions of Part VII of the Act operate according to their tenor, on the basis that the)-1 are supported by s 51(xxix) of the Constitution (as implementing the United Nations (UN) Convention on the Rights of the Child (CROC)), or only have the more limited operations provided for in Subdivision F of Division 12 of Part VII.
3.Whether the detention of a child who is an 'unlawful non-citizen' within the meaning of the Migration Act is beyond the authority conferred by that Act when that ·detention extends over a lengthy period or its duration is indefinite.
4. If so whether the detention of a child is 'indefinite' if the child lacks capacity to make a request under s 198(1) of that Act.
In response to these questions, all the judges of the High Court unanimously agreed that the Minister's appeal should be allowed and the orders of the Full Court be set aside. Rather than return the children to a fomal detention centre the Minister declared the Adelaide home where they had been living a place of detention.[4] On 3 June 2004, in B v The Secretary of Immigration and Multicultural and Indigenous Affairs ('B Federa1 Court') Lander J of the Federal Court refused an interlocutory application for the release of the children from immigration detention.[5]
The current facts concerning the Bakhtiyari family may be described as follows. Ali Bakhtiyari has remained in detention at Baxter Detention Centre pending the determination of his appeal against a refusal to grant refugee status. Roqia Bakhtiyari has remained in detention and (since three weeks prior to the birth of her son Mazhar on 6 October 2003) has been detained under 24-hour guard in an Adelaide hotel room. On 4 June 2004, Immigration Minister Amanda Vanstone announced the government's offer to reunite Roqia Bakhtiyari with her children in alternative detention arrangements in Adelaide. The offer was accepted and Mrs Bakhtiyari and her nine-month-old infant were reunited with the five eldest children on 8 June 2004. Infant Mazhar is awaiting determination by the High Court on the question of whether Australian citizenship can be acquired by being born in Australia.[6] Proceedings brought on behalf of Alamdar and Muntazar Bakhtiyari were heard by the Court of Appeal in London on 19 July 2004. Review wa5 sought of a decision by British Foreign Secretary Jack Straw to reject the boys' application for asylum made at the British Consulate in Melbourne in June 2002.[7]
The judgments in the Family Court have been discussed in some detail in the preceding article and it is not intended to cover the same ground. This article analyses the High Court judgments and comments on the consequences of the decision. Unfortunately, six of the seven judges of the High Court deftly avoided directly confronting the four questions of 'law and public interest' before the Court. Gleeson CJ and McHugh J (in a joint judgment) and Gummow, Hayne and Heydon JJ (in a joint judgment) addressed only the first issue -the scope of the 'welfare' jurisdiction of the Family Court. This issue lies as the heart of this article but both joint judgments confronted this issue from a procedural theoretical perspective rather than dealing with the substantive issues at hand. These judgments largely revolve around the interaction between complex, interrelated provisions in the Family Law Act.
Gleeson CJ and McHugh J based their decision on the requirement that ss 75, 76 and 77 of the Constitution confine the jurisdiction a Federal Court to a 'matter'. They concluded that s 67ZC (the welfare power) of the Family Law Act standing alone did not constitute a 'matter' as it did not 'confer rights or impose duties on anyone'. [8] 'Marion's case'[9] was distinguished as the authorisation of sterilisation or other medical procedures for children fell within the ambit of parents' responsibility for the long-term care and welfare of children and thus constituted a 'matter' before the court. Following an examination of the entire Family LawAct and particularly Part VII (which relates to children), they concluded that the operation of the welfare provisions whether standing independently or read in conjunction with the other provisions of Part VII are confined by the terms of ss 69ZH headed 'Additional Application of Part.' Section 69ZH(3) states:
The provisions mentioned in subsection (2) only have effect as mentioned in that subsection so far as they make provision with respect to the parental responsibility of the parties to a marriage for a child of the marriage. [emphasis added]
Gleeson CJ and McHugh J took the view that nothing in the Family Law Act suggests that the Family Court has jurisdiction to make orders against third parties simply because it is in the interests of the welfare of the child to do so. Accordingly, in order to constitute a 'matter orders sought must concern the relationship between parent and child. A 'matter may seek to enforce duties or obligations owed by parents to children. The order sought in this case required the 'Minister to take or to refrain from taking action in respect of children. Nothing in Part VII gives any support for the making of such an order or orders against the Minister.'[10]
Justices Gummow, Hayne and Heydon similarly limited their discussion to the threshold question of whether the Family Court had jurisdiction pursuant to the welfare power to order the release of children from immigration detention or to make orders for the protection of children while in detention. They also concluded that s 69ZH especially sub-ss (2) and (3) confines the operation of the welfare power to the parental responsibilities of the parties to a marriage for a child of a marriage.[11]
Only Callinan J dealt with all the issues before the Court. In considering the extent of the Family Court's welfare jurisdiction, His Honour commenced his discussion with the ambit of the powers which the states had transferred to the Commonwealth in respect of children between 1986 and 1990. The welfare jurisdiction was omitted from the powers referred. According to His Honour, the states referred 'a jurisdiction with respect to parental obligations owed to children, not already possessed by the Commonwealth'.[12] This jurisdiction did not extend to releasing children from immigration detention. As the power to release children from immigration detention had been conferred by the states on the Commonwealth, a welfare jurisdiction enabling the Family Court to exercise the parens patriae jurisdiction must reside inherently with the Commonwealth through the powers granted in the Constitution namely the marriage and matrimonial causes power.
Callinan J considered that there was little point in revisiting Marion's case as it would not throw any light on the 'entirely different situation' before the Court. The granting of parental authority to sterilise children of the marriage arose out of the custody or guardianship of a child of marriage. For Callinan J the powers conferred pursuant to the marriage and matrimonial causes power in the Constitution are powers related to parentage and not a general discretionary welfare power. The welfare jurisdiction of the Family Court does not include the ability to release children from immigration detention. '[T]the Family Court may no more do this than it could exercise a jurisdiction in tort or contract in order to advance the welfare of the child.'[13]
Once it was concluded that the marriage and matrimonial causes power could not support the release of children from immigration detention Callinan J went on to determine whether CROC or portions of CROC had been incorporated into the Family Law Act hence enlivening the external affairs power. Callinan J proceeded on the assumption that the welfare of children was capable of falling within the external affairs power. He suggested that clues as to the heads of power on which Parliament sought to rely may be found in the long title and Part VII of the Family Law Act. In this case these indicators signified 'parentage and marriage'.
According to Callinan J, for Part VII to incorporate CROC into domestic law it is necessary to demonstrate a 'clear connection between the law and the treaty' and the law must have as its 'purpose or object' the implementing of the treaty. His Honour referred to the 1995 Commonwealth Family Law Reform Act and concluded that those changes were aimed at 'the reinforcement of parental responsibility of children'.[14] According to Callinan J the second reading speech indicated that CROC may have influenced the drafting of this legislation but it fell a long way short of incorporation. 'The Parliament did not however intend to implement the Convention by in some way enlarging or creating an all embracing welfare jurisdiction.'[15] His Honour alluded to the pbssibility 'that CROC may be aspirational only and commented that the deliberate vagueness and ambiguity of its wording left the means of implementation to the dismj1:ion of the signatories.
Callinan J noted that CROC is a 'declared instrument' under s 47(1) of the Human Rights and Equal Opportunity Comm1ssion Act 1986 (Cth) ('the HREOC Act). By reason of the declaration of CROC, the standards contained in the instrument are 'human rights' under the HREOC Act. The Human Rights and Equal Opportunity Commission (HREOC) has in the past concluded that immigration detention also violates the HREOC Act.[16] But in its 2004 Report of the National Enquiry into Children in Immigration Detention, HREOC concluded that defining human rights to include the rights contained in CROC falls short of direct incorporation. Judicial interpretation of s 47(1) of the HREOC Act has failed to yield a clear conclusion as to the incorporation of CROC and the International Covenant on Civil and Political Rights (ICCPR) into domestic law. In B High Court, Callinan J noted that whatever relevance CROC may otherwise have as a declared instrument under the HREOC Act, it has not been incorporated into the domestic law relating to the detention of unlawful non-citizens under the Migration Act.
Once Callinan J had determined the parameters of the welfare jurisdiction, the interaction between the Family Law Act and the Migration Act was of little consequence. However, he commented that the Migration Act generially was designed to deal with all matters, without exception, relating to unlawful non-citizens. In his opinion the provisions of the Migration Act would present an obstacle to the Family Court making orders forth release of children from immigration detention.
For Kirby J the essential issue before the Court was the interaction between the two statutes. If the provisions of the Migration Act precluded the Family Court from exercising its welfare jurisdiction in relation to children in immigration detention then the extent of this jurisdiction and powers under the Family Law Act are irrelevant. His Honour concluded that the Australian legislature Intends a system of mandatory detention to remain in force with no distinction to be made between children and adult. Furthermore, the detention of these children was not indefinite or permanent. The children may at any time through the1r parents elect to leave Australia or may remain in Australia following a successful application by the parents on behalf of the children. This being the case, the welfare jurisdiction 'cannot be invoked to oblige contravention of the constitutionally valid legislative scheme of mandatory detention contained in the [Migration Act]'.[17]
Subsequently, the legal representatives for the children in B Federal CouJ1 argued that they should be released from detention as removal was not 'reasonably practicable' as there was no real prospect of removal from detention in the reasonably foreseeable future.[18] Lander J narrowed this issue to whether the children were entitled to be released from detent1on because of their parents' refusal to co-operate with authorities and to leave Australia. Lander J referred to and accepted
Kirby J's judgment in B H1gh Court that the children's detention is not indefinite and that their detention is lawful. The protracted detention was brought about because of the numerous challenges which their parents brought for visas to reside in Australia.[19]
In B Family Court the majority of the Full Court had concluded that the children in this case were being held in detention indefinitely and Australia was thus in breach of art 37(b) of CROC. This article states that 'the ... detention ... of a child shall be in conformity with the law and shall be used only as a measure of last resort for the shortest appropriate period of time'.[20] In B H1gh Court Kirby J suggested that the lawfulness of the children's detention must be viewed in terms of compliance w1th Australia's intemat1onal law obligations.[21]
The question of Australia's compliance with its human rights obligations in relation to the Bakhtiyari family was raised before the UN in 2003. The UN Committee on the Rights of the Child is the supervisory committee of CROC. It is responsible for studying and responding to state parties' reports on steps taken to comply with their obligations under CROC and for submitting biennial reports to the General Assembly. However, there is no mechanism for bringing individual complaints or 'communications' for violations of CROC to the Committee on the Rights of the Child. CROC differs
in this respect to the ICCPR. Under the First Optional Protocol to the ICCPR, state parties recognise the competence of the Human Rights Committee to receive and consider written communications from individual claiming to be victims of violations of any of the rights contained in the ICCPR. The ICCPR's supervisory Human Rights Committee considered a communication brought by the Bakhtiyari family alleging violations of the ICCPR and delivered its conclusions on 29 October 2003.[22] The Committee concluded that art 9(1) of the ICCPR (which is similar in wording to art 37(b) of CROC) was violated by the detention of Roqia Bakhtiyari and her children. The Committee also found a breach of the ICCPR's art 24(1) which provides that every child shall be afforded, without discrimination, such measures of protection as required by their status as a minor, on the part of their family, society and the state. The Committee interpreted art 24(1) with reference to CROC. It found that the detention was inconsistent with the requirement that the 'best interests of the child' be a primary consideration in accordance with art 3(1) of CROC because no consideration had been given as to whether detention or release was in the best interests of the children. The Committee further found that art 9(4) (which requires that a person deprived of their liberty shall be entitled to take court proceedings to determine the lawfulness of their detention) was violated because there was no discretion for a domestic court to review the justification of detention in substantive terms. The article was violated in relation to Mrs Baktiyari and in relation to the children until the BFamiy Court decision was handed down.
In B High Court, Kirby J acknowledged that decisions of the UN Human Rights Committee could not be regarded as binding and were only persuasive on domestic law. However, His Honour emphasised that it was imperative wherever possible that the interpretation of Australian legislation comply with its international obligation. According to Kirby J as Australia had been found to be in breach of the ICCPR it appears 'strongly arguable' that Australia is in breach of CROC.[23] However, His Honour concluded that even though there was an arguable breach of Australia's international obligations it could not sustain a reading down of the provisions of the Migration Act. Kirby J relied on two indications to refute a reading down of this legislation. First, there was no hint in the legislation that children should be treated differently to adults and, second, the language of the legislation is intractable and cannot be read down to comply with international obligations.
The issue of whether CROC has been incorporated into Australian law remains unresolved. In B High Court Callinan J alone directly dealt with this issue and conclusively rejected incorporation. The other six judges of the High Court failed to address this issue and thus the majority decision of the Full Court has not been overruled. Mr Justice Kirby's silence is deafening. It may imply that His Honour considered that CROC had not been incorporated into the Family Law Act but was reluctant to make an express declaration. Given that he discussed in some depth Australia's international obligations and their importance in the context of domestic law. one would assume that this would have been the ideal opportunity to rule on this issue. However, His Honour clearly explained that the question of the incorporation of CROC was ancillary to what he considered to be the essential question before the court-the unlawfulness of the children's detention. According to Kirby J the implementation of CROC was significant only if the detention of the children could be considered unlawful.
It is unclear from B Family Court whether Nicholson CJ and O'Ryan J considered that CROC in its entirety had been incorporated into Part VII of the Family Law Act or whether the majority judgment was specifically confined to the Family Court's welfare jurisdiction. '[W)e think that the Parliament in passings 67ZC has implemented the relevant par):s of UNCROC so far as this case is concerned.'[24] It remains to be seen whether the Family Court will continue arguing for the incorporation of CROC and to what extent. It is suggested that there is a greater likelihood that such reasoning will be regarded as an innovative attempt to assist children in detention and need no longer be pursued.
On 2 April 2004 at the workshop when the previous article was delivered, Adiva Sifris speculated on the outcome of B High Court. It turns out that she was correctly pessimistic in suggesting that it was unlikely the High Court would endorse the alternative arguments of the majority in the Full Court and conclude that the external affairs power supports Part VII of the Family Law Act and that CROC has been implemented into the Act. Implementation requires that the legislation's 'purpose or object is to implement the treaty'.[25] The majority in B Family Court adopted a holistic approach to the incorporation of international treaties challenging traditional understanding of incorporation which it was correctly doubted would be accepted. Adiva Sifris suggested that the link between the welfare power, CROC and the external affairs power is vague and tenuous, making it highly unlikely that the High Court would endorse it. A trawl through the High Court transcript confirmed these initial thoughts. Callinan J remarked, 'I would need a lot of persuasion that this is within the external affairs power' and Justice Kirby (the main proponent on the High Court for the incorporation of international obligations into domestic law) was clearly troubled that 'originally the Bill specifically referred to the Convention and then was amended'.[26]
While the members of the High Court may have left the status of CROC in limbo, the limits of the welfare jurisdiction have been clearly defined as restricted to parental responsibility, Once again the High Court's conclusion is unsurprising. Utilising the marriage power to release children from immigration detention opens up a Pandora's Box of limitless possibilities which it was unlikely the High Court would find acceptable. This opinion was fortified on a review of the High Court transcript of proceedings. Kirby J suggested that 'it seems a little remote' and McHugh J queried whether the Family Court pursuant to the welfare power could make orders to a Department of Education of a state as to how a child should be educated or what sports they should play.[27]
We know from Marion's case that a matrimonial dispute is not an essential prerequisite for the welfare jurisdiction to be exercised pursuant to the marriage power. However, consent to invasive and permanent medical procedures fits more snugly into notions of traditional parenting than does the release of children from immigration detention. The High Court's decision largely rests on its inability to view the welfare power in terms of 'non traditional' parenting, thus limiting the welfare jurisdiction of the Family Court to conventional parenting roles.
However, there remains scope for the Family Court to exercise a broad welfare jurisdiction. The High Court's reasoning (apart from that of Kirby J) relates to and relies on the interpretation of the existing Family Law Act. If amended, this legislation might be given a broader interpretation. Furthermore, even on the existing interpretation there may be situations where the Family Court could exercise jurisdiction including a broad welfare jurisdiction over children in detention. This may arise when there are disputes between parents of the children in detention.[28]
Family Law is currently in a state of flux. The concept of 'the family' is an evolving one. Traditional notions of who is a parent, what constitutes the welfare of the child and definitions of parental responsibility are changing. The Family Court's ability to exercise accrued jurisdiction has added a string to its bow and provided it with the scope and opportunity to preside over matters previously thought to be beyond its jurisdiction.[29] The combination of these factors may see the Family Court in the foreseeable future exercise its welfare jurisdiction in a manner not envisaged by the High Court in B and B.
REFERENCES
[*] ADIVA SIFRIS teaches law at Monash University.
[#] TANIA PENOVIC teaches law at Monash University.
© 2004 Adiva Sifris and Tania Penovic
[1] [2004] HCA 20; (2004) 206 ALR 130
[2] [2003] FamCA 451; (2003) FLC 93-141.
[3] Minister for Immigration & Multicultural & Indigenous Affairs and B and B [2003] FamCA 591; (2003) FLC 93-142, 78,375.
[4] See Michelle Grattan, 'Release the Children says Report', The Age (Melbourne), 8 May 2004, News 7
[5] B Federal Court [2004] FCA 699 Lander J (3 June 2004)
[6] Leave to intervene was granted on behalf of Mazhar in Singh v Commonwealth of Australia, Transcnpt of proceedings (High Court, Gleeson CJ, 10 February 2004)
[7] See 'Bakhtiyans take on UK Foreign Secretary' <http//www.theage.com.au/articles/2004/07/07/1089000188070 html> at 5 October 2004
[8] B High Court [2004] HCA 20; (2004) 206 ALR 130 para 13 (Gleeson CJ McHugh J)
[9] [1947] HCA 37; 75 CLR 218. See preceding article. Adiva Sifns, 'Children in Immigration Detention: The Bakhtiyan Family in the Family Court (2004) 29 AltLJ 212
[10] B High Court [2004] HCA 20; (2004) 206 ALR 130, para 53 (Gleeson CJ and McHugh J)
[11] B High Court [2004] HCA 20; (2004) 206 ALR 130 para 74 (Gummow, Hayne, and Heydon JJ).
[12] B High Court [2004] HCA 19; (2004) 206 ALR 1 30, para 206 (Callinan J).
[13] B High Court [2004] HCA 20; (2004) 206 ALR 130 para 215 (Callinan J)
[14] B High Court [2004] HCA 20; (2004) 206 ALR 130 para 220 (Callinan J)
[15] B High Court [2004] HCA 20; (2004) 206 ALR 130 para 221 (Callinan J)
[16] Human Rights and Equal Opportunity Commission, Those who've come across the seas, Detention of unauthorised arrivals (11 May 1998) <http//www.hreoc.gov.au/pdf/human_nghts/asylum_seekers/h5_2_2.pdf> at 7 October 2004
[17] B High Court [2004] HCA 20; (2004) 206 ALR 130 para 177 (Kirby J)
[18] B Federal Court [2004] FCA 699 Lander J (3 June 2004), para 72
[19] B Federal Court [2004] FCA 699 Lander J (3 June 2004), para 101 and 109
[20] B Full Court (2003) FLC 93-141,78,359
[21] B High Court [2004] HCA 20; (2004) 206 ALR 130 para 139 (Kirby J)
[22] For a detailed discussion of the Committees conclusion see Tania Penovic, 'lmmigration Detention of Children: Arbitrary Deprivation of Liberty' [2003] NewcLawRw 3; (2003-2004) 7(2) Newcastle Law Review 35
[23] B High Court [2004] HCA 20; (2004) 206 ALR 130 para 153 (Kirby J).
[24] Minister for Immigration & Multicultural & Indigenous Affairs and B and B [2003] FamCA 591; (2003) FLC 93-142, 78,347.
[25] State of Victoria v Commonwealth of Australia (1996) 187 CLR416, 487
[26] Transcript of proceedings. MIMIA v B and Ors (High Court, Kirby J, 30 September 2003) <http://www.austlu.law uts edu.au/au/other/HCATrans/2003/380.htm> at 7 October 2004.
[27] lbid, McHugh J
[28] See Richard Chisholm, 'Immigration and the Family Court the High Court Speaks' (2004) 18 Australian Journal of Family Law 193, 206-07.
[29] Accrued jurisdiction permits the Family Court to determine claims which do not ordinarily fall within its jurisdiction (for example, common law claims) but which are seen as being part of the same 'matter' as a cla1m which does fall within its jurisdiction.
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/journals/AltLawJl/2004/65.html