Human Rights & Equal Opportunity Commission v P & Ors S121/1995 [1996] HCATrans 41 (5 February 1996)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S121 of 1995

B e t w e e n -

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

Applicant

and

P

First Respondent

P

Second Respondent

LEGAL AID COMMISSION OF NEW SOUTH WALES

Third Respondent

Application for special leave to appeal

GAUDRON J

McHUGH J

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 5 FEBRUARY 1996, AT 12.41 PM

Copyright in the High Court of Australia

MR J. BASTEN, QC: If the Court pleases I appear with MR M.G. NICHOLLS for the applicant. (instructed by Ms Susan Roberts, Human Rights and Equal Opportunity Commission)

MR P.I. ROSE, QC: If the Court pleases, I appear with MR S.J. GAGELER for the third respondent. (instructed by Ms B. Perry, Legal Aid Commission of New South Wales)

GAUDRON J: Yes. Now, I indicate that the Registrar certifies that the first respondent in this matter submits to the decision of the Court save as to costs and will not be appearing today. Now, I think there may be some indication from counsel as to the position of the second respondent. Do you have some information in that regard, Mr Rose?

MR ROSE: No, your Honour. I understood that the second respondent would be in the same position throughout the proceedings, that is, not appearing.

GAUDRON J: Yes.

MR ROSE: I am sorry. I think we have had a letter from the solicitor for the other respondent saying that she will not participate in these proceedings in this Court. She did participate below.

GAUDRON J: Now, my material indicates that the mother is the first respondent, is that right?

MR ROSE: Yes.

GAUDRON J: Has somebody heard from the father?

MR ROSE: I am sorry. I understand your Honour's question. No, we have not heard from the father, your Honour.

DEPUTY REGISTRAR: The Registry wrote to the father, to the respondent father - he lives at Bermagui - and received no reply.

GAUDRON J: If you might just call the matter of P v P outside the Court.

DEPUTY REGISTRAR: No response, your Honour.

GAUDRON J: Please proceed, Mr Basten.

MR BASTEN: Your Honours, this case, in our submission, illustrates a trend which has been apparent in the Family Court since before the decision in Marion's Case. The error, in our submission, lies in treating the approach to be a straightforward application of the "best interest" test unconfined by the "step of last resort" principles and I say it arose before the decision of this Court in Marion because the authorisation in Marion's Case was actually made before this Court handed down its decision and, with respect, the statement of principles which has been adopted by the Full Family Court in this case illustrates a tendency not to give attention to the important confinement to establish a principal basis upon which authorisation can be granted.

In Marion's Case this Court upheld the power and jurisdiction of the Family Court to authorise the planned sterilisation of an intellectually disabled girl. This Court was, however, only peripherally concerned with the circumstances in which authorisation should occur and the procedure which the Family Court should adopt in reaching its conclusion. Nonetheless, the majority of this Court clearly shared the concern expressed by Justice Brennan and Justice McHugh that the standard "best interests of the child" approach did little to provide a principled framework for such determinations. Accordingly, the Court held that the "best interests" approach must be confined by the "step of last resort" principle and that is clearly provided in a short passage which appears at page 259 in the judgment in Marion's Case [1992] HCA 15; 175 CLR 218, and the purpose of the imposition of this confinement appears at about point 5 on the page. Having identified the function of the Court their Honours continued to say, in the middle of the paragraph:

But it should be emphasised that the issue is not at large. Sterilization is a step of last resort. And that, in itself, identifies the issue as one within narrow confines.

And at the bottom of the page to the top of the next page the Court makes it clear that - perhaps the first sentence at the top of 260:

And, if Authorization is given, it will not be on account of the convenience of sterilization as a contraceptive measure, but because it is necessary to enable her to lead a life in keeping with her needs and capacities.

And the decision goes on to note that:

judges will develop guidelines.

As was anticipated, that has happened. Our concern with the guidelines is that in two respects they failed to give appropriate weight to the need for this procedure to be a "step of last resort".

GUMMOW J: Mr Basten, this is all very interesting, of course, but what is the consequence of this litigation? What orders would the Commission seek from this Court if you were successful in getting leave? And what would be the consequence of those orders for the other parties?

MR BASTEN: We concede that the procedure has been carried out so that there could be no consequence in terms - - -

GUMMOW J: By either parties I meant to include third parties, as well?

MR BASTEN: Yes, I understand that, your Honour. The consequence would not be a practical physical consequence for the child. The procedure has been carried out. A reversal of the decision below or an indication that it was based on incorrect principle would not affect her in a physical sense. It would have a significant consequence for the role of a separate representative. If it is correct to say that the separate representative should not be making decisions as to the best interests and formulating submissions - - -

GUMMOW J: No, no. What consequences would it have for those who performed the procedures?

MR BASTEN: For the medical?

GUMMOW J: Yes.

MR BASTEN: I am sorry. I was addressing the separate representative as a party in the present proceedings. You mean in terms of the medical, the doctors who had carried out the procedure at a time when they had authority to do so?

GUMMOW J: Yes.

MR BASTEN: We would say that it would not render their operation illegal. We would not suggest that there was any retrospective effect.

GUMMOW J: Or tortious?

MR BASTEN: Tortious or criminal. We would not see it as having that effect in relation to the activities of the medical practitioners concerned. Your Honour, the principles that we say are involved are ones of public concern and they do impact precisely on the role of the separate representative who seeks to oppose the application today. The separate representative in a normal proceeding before the Family Court is entitled to put before the court such material and put such arguments as appears to him or her to be in the best interests of the child. That is a judgment which, in our submission, is not appropriately available in these cases because it is a matter for the court to determine whether the right to the physical integrity of the child should be, as it were,

over-ridden in the interests of whatever the purpose may be, normally, long-term contraception and control of menstruation. The separate representative does not have the power to waive any right which the child may have and, therefore, is acting inappropriately in failing to put before the court - - -

GAUDRON J: Why do you say this? Where is the source for this argument?

MR BASTEN: Well, the source for the argument, your Honour, is a recognition of, firstly, the propriety of the child having representation.

GAUDRON J: That occurs only, as I take it, pursuant to the leave of the court, does it not, or the order of the court, or the rule of the court in the regulation of its own procedure?

MR BASTEN: That may well be so, your Honour, as a matter of practice. We would say that the right to have one - - -

GAUDRON J: Where does this separate representative obtain her or his standing in the Family Court?

MR BASTEN: Your Honour, in terms of the practice of the court that is a practice which has been adopted. We do not say that there is anything in the legislation.

GAUDRON J: So it is for the court to determine what role in the exercise of its power with respect to its own procedures, surely?

MR BASTEN: That is so, your Honour, but that must be a principle of exercise of power and our point in relation to the role of the separate representative which we make in the summary of argument is that in order for the child to have her expectations, which we would submit do flow from the international instruments which we referred to in paragraph 20, given practical effect, there must be some representation of her before her right to physical integrity is over-ridden in this way.

GAUDRON J: Well, there was.

MR BASTEN: That is the second stage of the argument, your Honour. Firstly, we say that there should be representation. Secondly, that there was. Our complaint is that the representative did not seek to put on her behalf what arguments might properly have been put on the evidence in opposition to the procedure being carried out.

GAUDRON J: At that stage did the Human Rights Commission involve itself in the proceedings?

MR BASTEN: At the trial stage, your Honour.

GAUDRON J: You were granted leave to intervene?

MR BASTEN: Yes, your Honour.

GAUDRON J: It was open to you to put whatever arguments were appropriate on the evidence?

MR BASTEN: It would have been open, your Honour. The Commission did not think it appropriate to put arguments on the facts.

GAUDRON J: It may not have thought it was appropriate, but it was open to you to do so and in circumstances where - I mean, if you elect not to do it, it seems odd that you should be heard to complain that somebody else did not do it when it was open to you.

MR BASTEN: It was certainly open to us, your Honour. We did not see it as our appropriate role to intervene on the individual merits of the case. We take the view that there will be separate representation by whatever name on behalf of the child and that is appropriate. We intervened in order to see that the procedures in relation to the role of the representative were properly followed, and that the Court accepted a test which, in our submission, was an appropriate test. That was our interest.

GAUDRON J: Did you become a party to the proceedings? Was there some provision of the Act that made you a party?

MR BASTEN: Yes. I do not have the Family Law Act in my hand. We have it here.

GAUDRON J: I am interested as to your standing to bring this application.

MR BASTEN: We became a party to the proceedings with leave of the court.

GUMMOW J: Is that right? Was there ever any formal order or was it left to the operation of a section of the Act to achieve that result as a self-executing operation of the statute?

MR BASTEN: I am instructed that an order was made. The application was invited and an order was duly made.

GUMMOW J: Does it appear in the record that we have?

MR BASTEN: No, it does not, your Honour.

GUMMOW J: Why not?

MR BASTEN: Mr Rose suggests section 92 of the Act is the statutory basis, 92(3) for your Honour the presiding judge's purposes, the provision which entitles us, we would say, to seek special leave.

GAUDRON J: Yes, but that does not make you a party to the proceedings.

MR BASTEN: Section 92(3) we are deemed to be a party.

GAUDRON J: Yes, thank you.

GUMMOW J: This order was made, was it?

MR BASTEN: I am instructed it was, your Honour.

GUMMOW J: Was it ever taken out?

MR BASTEN: I cannot say that, your Honour. I suspect not, being a procedural step.

GUMMOW J: It is an extremely important procedural step, if I may say so. There is an air of sloppiness about all this.

MR BASTEN: It may be, your Honour. I did not understand there was ever any debate about our role below or the appropriateness of the application. There is a reference at page 3 in the judgment of the trial judge her Honour, at lines 14 to 15 refers to the fact. I think the order was probably not taken out, your Honour, because there was no challenge to it, nor was it seem to be an issue in these proceedings but I accept what your Honour says.

Your Honours, might I say just in relation to the substantive issue - the procedural issue and the substantive issue both turn, in our submission, on the same failure to give proper consideration to the "step of last resort" test and the critical passage in the judgment of the Full Court of the Family Court is the discussion at pages 101 to 105 of the alleged error in her Honour the trial judge's approach where it is said that she adopted what the Court described as a "but for" test at the top of page 101, and the test which was described as superficially attractive at line 20 was this: that the trial judge erred in asking if the procedure would have been performed but for the intellectual disability of the young woman, line 10.

Now that, with respect, in our submission, is the appropriate test because it seeks to identify a woman with the same characteristics and needs as Lessli, the girl in this case. And then ask whether some other less drastic step might have been taken in relation to a girl or young woman of those same needs and characteristics other than the intellectual disability. And that, in turn, proved to be critical in her Honour's judgment that sterilisation would not have been appropriate in this case. There were other matters for consideration but the one point upon which we seek to challenge the decision of the Full Family Court is its disagreement with that approach, and it is not to the point, in our submission, to say at the bottom of that page that this is an artificial exercise, nor that it compartmentalise certain characteristics. The point is that those characteristics have relevance but at a primary stage.

There are, with respect, three stages in the test which is needed to be applied. Firstly, the Court must consider the capacity of the child to consent. There was none and that is not in dispute. Secondly, the Court must consider what the needs of the child are. Is it a need of hers that she not conceive and have steps to control menstruation. In that regard it is clear that the disability of Lessli is critical and there is no doubt that that was taken into account. It may also be considered relevant in considering appropriate intervention. Was the child capable in a physical sense of taking the drugs which might be an alternative, but beyond that, with respect, it was not appropriate that the intellectual disability as such be considered and it was, with respect, discriminatory to treat her in a different manner to a child who did not have that disability and her apparent incomprehension of the value of her own fertility is, with respect, a dangerous element to place weight upon when considering whether or not this is the "step of last resort" because to place weight upon that element, as their Honours do in the guidelines at pages 112 to 113 is to fail to give primacy to the "step of last resort" test and to undermine the claim to physical integrity, a claim which perhaps for a normal girl, a girl without intellectual disability, could be waived by choice. The Family Court has no power to waive that right by choice except in the case where it is the "step of last resort". At page 112, at line 40, it will be noted in the discussion from Re Grady set out there that:

The feasibility and advisability of less drastic means of contraception -

are a relevant consideration, a factor picked up at page 113 from Re Marion [No2] at line 45 through to 50. What we say, with respect, is that her Honour's finding that oral contraceptives would have been attempted in this case was a matter which means this could not be the "step of last resort", and that the approach to the question of intellectual disability led the Full Family Court into error in that regard. And that, with respect, we say, is a matter of general importance in relation to the exercise of discretion in these cases. The error is also illustrated, we submit, at page 107, at about line 40, in the passage in which they consider the possibility of management training for menstruation - I am sorry, I should start at line 34:

If the reality is, as it is in this case, that the person concerned cannot reasonably be expected to proceed with a pregnancy to full term and pregnancy itself is detrimental to her welfare, then we can see little value in subjecting her to laborious and unnecessary training to enable her to manage menstruation, particularly when it is highly unlikely that this process will be effective.

Ignoring the last judgment, the value of subjecting her to training in relation to menstruation is that it may, in effect, show by a process of physical demonstration that for that particular purpose sterilisation was not a "step of last resort". And, your Honour, with respect, it is both those matters in relation to the test and the question of the procedural fairness of over-riding a legitimate expectation in the absence of argument, concededly in the absence of argument, put by the separate representative in favour of the court holding its hand which are together matters which, in our submission, call for the intervention of the court. Those are my submissions.

GAUDRON J: We need not trouble you, Mr Rose.

This application challenges the procedures and approach adopted by the Family Court in relation to an application for court authorisation of medical procedures for the sterilisation of an intellectually disabled child. The decision of the Full Court involves neither discernible error of principle nor procedural irregularity. The appropriate order is that the application for an extension of time within which to seek special leave to appeal be refused.

MR ROSE: I would seek costs, if your Honour pleases.

MR BASTEN: Your Honour, we would oppose that on the basis that both parties, as it were, act in the public interest and have an interest in this matter being resolved at the highest level. We would submit it is a matter where, if it had gone to the court for an appeal, there would very likely have been no order as to costs, whatever the outcome.

GAUDRON J: What does the Act say?

MR ROSE: The Act makes provision, your Honour, in section 117 for there to be normally no order as to costs subject to the provisions of section 117(2)(a) and they, if your Honours please, require the Court to take into account a number of factors, many of which would not be - - -

GAUDRON J: If one were to apply the policy of the Act, what factors would you raise.

MR ROSE: I am sorry, your Honour?

GAUDRON J: If one were to apply the policy discernible in the Act, what factors would you raise as justifying an order for costs?

MR ROSE: The matters that we would rely on, with respect, are that the application was refused; that the reasons for refusal did not indicate any merit in the application and, if your Honours please, although I am briefed by the Legal Aid Commissioner, it has a limitation on its funds and it was proper that it be heard in these proceedings.

GAUDRON J: Thank you. The application is refused with costs.

AT 1.04 PM THE MATTER WAS CONCLUDED