Northern Territory of Australia v G.P.A.O. and ANOR D172/1997 [1998] HCATrans 266 (5 August 1998)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Darwin No D172 of 1997

B e t w e e n -

NORTHERN TERRITORY OF AUSTRALIA

Appellant

and

G.P.A.O. (Father)

First Respondent

J.A.W. (Mother)

Second Respondent

SEPARATE REPRESENTATIVE

Third Respondent

GLEESON CJ

GAUDRON J

McHUGH J

GUMMOW J

KIRBY J

HAYNE J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 5 AUGUST 1998, AT 10.04 AM

(Continued from 4/8/98)

Copyright in the High Court of Australia

GLEESON CJ: Yes, Mr McDonald.

MR McDONALD: Thank you, your Honour. Your Honour Justice Gaudron asked a question yesterday evening in relation to the differentiation between jurisdiction and power. In terms of this particular case, your Honour, in seeking to answer that, we submit that the clash here in terms of the inconsistency is between the prohibitory effect of section 97(3) of the Community Welfare Act 1995 as an exercise of the Northern Territory legislative power and an exercise of power by the judge pursuant to a grant of jurisdiction under Part VII, and that manifests itself and impairs the ability of the judge - in this case Justice Murray - to decide the parenting content application in accordance with her conferred jurisdiction. Secondly, that there is produced a conflict where simultaneous obedience is not possible in terms of the subpoena on the one hand, an order at the direction of the court, and the provisions prohibiting the authorised officer from producing to the court under section 97(3).

If I could return to the principles of inconsistency and make clear those cases upon which we rely upon. It is certainly our submission that we rely upon those cases of which University of Wollongong v Metwally, Justice Mason's judgment, was one. If it is convenient, if I list those cases, the first case that we rely upon is the one I mentioned last night, Reg v Kearney; Ex parte Japanangka [1984] HCA 13; (1983-84) 158 CLR 395.

KIRBY J: Is it your proposition that these cases indicate an acceptance by the court of the principle that Justice Mason expressed in Metwally?

MR McDONALD: Yes, Justice Mason adopted what Justice Brennan said, your Honour.

GAUDRON J: Probably the only real difference is the "cover the field" notion, is it not?

MR McDONALD: Yes.

GAUDRON J: Nothing in Justice Brennan's judgment in Japanangka suggested that there was an inconsistency because the Commonwealth law covered the field.

MR McDONALD: No, I think that is right, your Honour.

GAUDRON J: It is talking about a Territory law - - -

MR McDONALD: Yes, it was.

GAUDRON J: - - - detracting from the enjoyment of a right conferred by a Commonwealth law.

MR McDONALD: Yes.

GAUDRON J: Yes.

MR McDONALD: Your Honour, the other case, of course, that you - - -

GUMMOW J: Do you say that is sufficient?

MR McDONALD: Well, your Honour, we say that - - -

GUMMOW J: There is no authority that binds us in this.

MR McDONALD: No.

GUMMOW J: We have got to get down to principle. Now, what is the principle?

MR McDONALD: Your Honour, we say that the principle is in terms of if there is a conflict, if it impairs or detracts from or interferes with the ability of the judge to discharge her function and exercise her jurisdiction, we say there is a material conflict in that sense. We also say here that there is a conflict between the competing - as on the authorised officer upon whom the subpoena operates. It produces a situation where there is an order of the court manifested in the subpoena to produce and then the provisions of the statute prohibiting that officer from so much as producing to the court the documents that are sought by the order. We say there is, in orthodox terms, a direct clash there, your Honour.

The other case that is not on our list of authorities but which has been copied and provided to the Court is Webster v McIntosh [1980] FCA 128; (1980) 49 FLR 317 at page 320 point 7 and over the page to 321 point 2, taking that particular judgment, and at page 321 Justice Brennan used the words "inconsistent" and "repugnant" interchangeably. That was when his Honour was, of course, in the Federal Court and a judgment with which Justice Deane and Justice Kelly agreed.

GUMMOW J: It is really based on what Sir Owen Dixon said in the Laristan Building Case.

MR McDONALD: Yes, it is, your Honour.

GAUDRON J: What is there said, of course, is said in the context of a provision in the ACT Self-Government Act, is it not?

MR McDONALD: Yes, it is, your Honour. A different territory but certainly in the context - - -

GAUDRON J: But was there specific provision at that stage? I am sorry, the ACT did not have self-government then, did it? So you were talking strictly in terms of subordinate legislation and - - -

MR McDONALD: Yes, indeed, your Honour.

KIRBY J: And may there not be a different principle. I mean, I realise that here we ultimately have to get back to the constitutional text and its requirement, but there certainly was a principle of the common law that when self-government was given to people in a colony then their relationship and their legislative power was in a different milieu, a different context because of that fact. Indeed, there was a theory, I think, that it could not be retrieved so the question is how that common law principle which is a principle that acknowledges the history of the development of rights of self-government and of the integrity of a self-governing people fits in with the Australian Constitution.

MR McDONALD: Certainly, your Honour. But we put it as in terms of the cases thus far that have been decided, that is the line of authority that we rely upon and, of course, there is the decision of the Full Court of the Federal Court that I referred the Court to last night, that is the Attorney-General (NT) v Hand - - -

KIRBY J: But is this not against you in the sense that if the Parliament of a self-governing people, operating albeit under the Constitution of the Commonwealth, who have been duly granted self-government and have democratically elected their legislature enacts a law such as what I will call the Child Welfare Act, then that may be in a different relationship to the federal Parliament than a mere piece of subordinate legislation such as a law passed by a Parliament or a legislature which is not of a self-governing people.

MR McDONALD: Your Honour, we would say, nevertheless, despite the fact the Northern Territory has achieved self-government that the inconsistency principles nevertheless do apply. It may be they do not apply with such rigour but certainly in this case we say it fits within and the detraction and the impairment of the Family Court's jurisdiction is such that there is, we say, very clear inconsistency.

There is one further authority that I seek to refer the Court to and that is P v P [1994] HCA 20; (1994) 181 CLR 583 and in particular I refer the Court to pages 601, 602 to 603. That, of course, was a case where section 64 of the Family Law Act provided in respect to proceedings in relation to the welfare of the child that the Family Court may make such order in respect of those matters as it considers proper.

There was in the State of New South Wales under the provisions of the Guardianship Act, under section 35 of the New South Wales Guardianship Act, it prohibited the carrying out of medical treatment without consent being obtained pursuant to Part 5 of the Act and it was held that the Family Court had jurisdiction to order the carrying out of sterilisation of a child despite the fact that it was prohibited, and there were sanctions in the New South Wales provision.

Now, if I could just refer the Court to page 601, under the heading "The effect of Pt 5 of the Guardianship Act", about half way down, and the second sentence:

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 -

I move on towards the bottom of the page:

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.

And we say, in this case, section 97(3) renders ineffective the proper exercise of Justice Murray's jurisdiction under Part VII - - -

McHUGH J: You keep saying that, but it does not affect his jurisdiction at all; it does not touch her authority to decide cases in any shape or form. It may affect the powers of the court, it confines their scope, but it does not detract from the authority to decide the point; that is what jurisdiction is.

MR McDONALD: Your Honour, the highest it can be put is in terms of the capacity of the court to be able to decide but to decide in accordance with that "best interests" principle, that what is in this particular case, if you look at the intended scope and the operation of the Family Law Act, and you say what did the Parliament intend, we say that the Parliament intended that the Family Law Court, in deciding cases, particularly sensitive cases like this where there has been a notification of child abuse filed with the registrar of the Family Court, to regard the best interests of the child as paramount. I do not want to be cyclical here, but that is really the nub of the point, your Honour. It either rises or falls.

McHUGH J: But where is the stopping point or would you say there is none, because it seems to me that your argument, if accepted, must logically lead to the conclusion that because the Family Law Court has power to decide these cases according to the best interests of the child or that is their paramount duty, then it must lead to the conclusion that they could overcome the law against legal professional privilege, self-incrimination. It must lead to that logically, unless you can come up with some principle which would confine it to this particular type of case.

MR McDONALD: Your Honour, this case is only a case dealing where there is a notification in respect of alleged abuse, so it is within a very narrow confine.

KIRBY J: Yes, but the point that Justice McHugh is making to you is that we just do not solve a particular case; we have to solve it according to a principle that is applicable to the myriad of cases that are waiting out there to have the principle applied. We have to test your proposition by how it works in all the other cases to which the principle applies. So what is the principle?

MR McDONALD: Your Honour, we say that the principle is where there is, as in this almost unique jurisdiction where it is the rights of the child since the 1995 Family Law Reform Act, since it is the rights of the child that are paramount and it is not strictly a lis inter partes, and within narrow confines which the majority recognised in the appeal book at page 28, that a judge can order, at least in respect of the Northern Territory or a State, the production of relevant material in a case such as this where the best interests of the child - - -

KIRBY J: Your point, I suppose, is that because federal law provides this criterion for the operation of a Federal Court operating in its jurisdiction that, to the extent that a Territory Act impinges or diminishes or is inconsistent with the exercise of that, it has to give way.

MR McDONALD: Yes, your Honour.

KIRBY J: It is not to say that the kind of consideration that is referred to in the Territory Act, namely, the protection of confidentiality of informants, is completely ignored - - -

MR McDONALD: No, certainly not.

KIRBY J: - - - but it is simply not, as it were, determinative of the point. It can be taken into account by the Family Court and would be taken into account by the judge in determining whether in the particular case the information would be produced not only to the court but to the parties and used in the decision, but it is not determinative; it is not a barrier; it is not forbidding.

MR McDONALD: It does not prevent the judge actually inspecting the documents. That is not to say that the Northern Territory department or other relevantly interested persons who want to protect a privilege or an interest cannot come and argue, in accordance with accepted principles under public interest immunity and whatever other privilege is seeking to be vindicated, to argue that those documents or materials ought not to be seen or handed over to the parties. It is that limited capacity, your Honour, that we seek. Here the Northern Territory authorised officer declined to so much as produce for inspection the documents in a vital jurisdiction where the content of those documents from the child's perspective was clearly relevant, and it is the best interests of the child here that are clearly of importance - not to say the interests of the father or the mother are not. This particular application, your Honour, was supported by the separate representative for the child.

KIRBY J: I saw that there was a separate representative.

MR McDONALD: Yes.

KIRBY J: Why is that separate representative not before this Court? The separate representative is content that the matters that will be propounded by you are sufficiently - - -

MR McDONALD: Yes, your Honour, and that is the way it actually occurred before the Full Court. The separate representative and the mother supported the submissions of the father.

CALLINAN J: Mr McDonald, there is a passage at page 602 of P v P where their Honours said - it is the second complete paragraph:

Quite apart from any question of constitutional power, 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 -

and so on that the words:

in the context of, and within the confines imposed by, the ordinary criminal law of the relevant State or Territory.

Is there any reason why that statement of principle should be confined to criminal law?

MR McDONALD: Your Honour, further down in the next block paragraph the further exception to that principle is expressed and we would say - - -

CALLINAN J: Yes, but again I think the reference is to the criminal law.

MR McDONALD: Yes.

CALLINAN J: I am just wondering whether there is any reason why, on what your submission is, with respect to the question whether it should be confined, those propositions should be confined to the criminal law.

MR McDONALD: Certainly, your Honour, and we say that in terms of the content when the Community Welfare Act is read and section 97(3) is read in the context of that, we certainly fit within the exceptions referred to in the next block paragraph on page 602.

GAUDRON J: While you are there, you might like to refer to page 603.

MR McDONALD: Yes, your Honour, I was going to read that.

GAUDRON J: It deals with a wider form of inconsistency.

MR McDONALD: Yes. It deals with this question that has clearly concerned the Court about jurisdiction and power.

GUMMOW J: And the Territory.

GAUDRON J: And Territory, yes. Inconsistency of Territory law.

MR McDONALD: Your Honour, perhaps if I read from the bottom of page 602 over to 603. At about point 7 on the page:

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 overriden 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" the Commonwealth law's conferral of jurisdiction by directly or indirectly precluding, overriding or rendering ineffective an actual exercise of that jurisdiction.

In a nutshell we say that that is what the Territory law here does.

KIRBY J: So it is the second branch that you rely on.

MR McDONALD: It is the second branch and the - - -

KIRBY J: Because you cannot really say it is covering the field because child welfare is still substantially a State or Territory controlled matter.

MR McDONALD: Clearly, your Honours, it - - -

KIRBY J: So, it is operative in consistency.

MR McDONALD: Yes. The Family Court, of course, does have a welfare jurisdiction. It was recognised in Marion's Case, confirmed in P v P but was given an express statutory recognition in the Family Law Reform Act , section 67ZC, I think, the provision is.

McHUGH J: The passage cannot be accepted as completely accurate, whatever else you say about it, can it, because it subsumes Territory laws under section 109?

MR McDONALD: Yes, certainly, your Honour, it is not a 109 case, I accept that, but what we say by way of relevant analogy, if our reliance upon the inconsistency cases is correct, if the principles that I have sought or even as modified, given the fact of self-government, we say that here within the words of this Court at page 603 we fit in and fit in my a mile.

CALLINAN J: Mr McDonald, but the welfare legislation does not preclude the exercise of the jurisdiction, it does not override it, and at the moment I am not persuaded that it renders it ineffective.

MR McDONALD: Your Honour, we say that it impairs or detracts from the jurisdiction and it is a jurisdiction that is unusual, having as it does the objects sets out in section 60B of the Family Law Act - - -

CALLINAN J: But, you see, the phrase that is put, and perhaps one should not try to construe it as a statute, but it is:

but only to, the extent that it would " alter, impair or detract from".....by, directly or indirectly precluding, overriding or rendering ineffective -

in other words, those last three expressions qualify the words in inverted commas.

MR McDONALD: Yes, your Honour, we would say that what this situation does, where a Family Court judge in what is probably the most sensitive exercise of his or her jurisdiction that there can be is precluded - or at least the exercise of the Part VII jurisdiction to promote the best interests of the child is rendered ineffective when that judge has clearly relevant material from the perspective of the child denied to him or her from so much as being able to inspect, to come to a decision which is in the best interests of the child.

GLEESON CJ: Does section 127 of the Commonwealth Evidence Act 1978 render ineffective the exercise of this sensitive jurisdiction?

MR McDONALD: It being a Commonwealth statute, your Honour, different considerations, of course, apply.

GLEESON CJ: Different considerations might apply but I am just asking whether it renders it ineffective so that I can understand what you mean by that expression.

MR McDONALD: Yes, certainly, Your Honour. Your Honour, it may not. It - - -

GLEESON CJ: Well, it would operate in exactly the same way as the Territory legislation operates in the present case, would it not, and in the given case could have exactly the same practical consequences?

MR McDONALD: Your Honour, save this, that the status of this is, of course - and section 8 of course, of the Evidence Act provides that, in effect, the provision of the Family Law Act are clearly not affected. The provisions of this section could well apply in the Family Court, I accept that.

GLEESON CJ: And when they did apply in the Family Court, would you describe them as rendering ineffective the exercise of the Family Court's jurisdiction?

MR McDONALD: Sorry, your Honour, when the notification was - - -?

GLEESON CJ: When section 127 of the Evidence Act of the Commonwealth applied in the Family Court, would you describe its operation as rendering ineffective the exercise of the Family Court's jurisdiction?

MR McDONALD: Your Honour, it would depend on the particular circumstance of the case. It may, but it may not, your Honour. The point, your Honour, however, is that there is a difference between, we would submit, Commonwealth law and Territory law.

Your Honour, this Court also considered the exercise of this jurisdiction in the case of M v M under the preceding legislation. If I could just refer the Court to that particular case, M v M (1988) 166 CLR 69 and if I could refer the Court to the judgment of Chief Justice Mason, Justice Brennan, Justice Dawson, Justice Toohey and your Honour Justice Gaudron, at page 75, point 9 on the page in the last paragraph:

In proceedings under Part VII of the Act in relation to a child, the court is enjoined to "regard the welfare of the child as the paramount consideration: s.60D. The paramountcy of this consideration in proceedings for custody or access is preserved by s.64(1). The consequence is that the ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child.

Then further down that page at point 4:

Proceedings for custody or access -

which, of course, the terminology has now changed -

are not disputes inter partes in the ordinary sense of that expression. In proceedings of that kind the court is not enforcing a parental right of custody or right to access. The court is concerned to make such an order for custody or access which will in the opinion of the court best promote and protect the interests of the child.

And then, in deciding what order it should make:

the court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child's interests to maintain the filial relationship with both parents.

Then over the page, page 77, if I could refer the Court to the judgment of the court in relation to the resolution of the wider issue, which, of course, faced Justice Murray. Point 7 on the page, the last block paragraph:

In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk.

GUMMOW J: Well, the question is, on the evidence.

MR McDONALD: Yes, your Honour.

GUMMOW J: We are back to where we were yesterday now.

MR McDONALD: Your Honour, yes we do, but what we say is here, by operation of the inconsistency principles, the evidence, if the judge upon inspection decides that the material is relevant to his or her decision, in this case Justice Murray's decision, we say that evidence would - - -

GUMMOW J: Not just relevant, but admissible.

MR McDONALD: Yes indeed, your Honour, and I accept that questions of admissibility are further down the line. Here, the point of contention between the Territory and all other parties before the Family Court was a prohibition to so must as produce for inspection; it is the capacity, we say, of a judge to be able to inspect the documents that is vital here for the proper exercise and assessing the magnitude of the risk that the court must do to discharge its functions, and we say, your Honour, yes, certainly on the evidence, and it may be the judge does not allow the material to be admitted into evidence, your Honour. What we say is that this particular material, this statutory prohibition, ought not preclude that limited step of the judge at least being able to see the documents.

GLEESON CJ: Do the Rules of the Family Court provide for the administration of interrogatories?

MR McDONALD: Your Honour, I think the answer is no, and I will have that confirmed before I sit down shortly.

KIRBY J: Just picking up Justice Gummow's point - leave aside this case because we do not know what was in the file - but just help me in relation to cases generally by which we must test this principle. Most of these files, one would imagine, would be full of, perhaps, accusations by the other spouse, gossip from neighbours, opinions based on such material from the child welfare experts or social workers and so on. Now, a lot of that, if not most of it, would not be admissible as evidence, one would expect, and all of these things would have to be proved in an appropriate way before the Family Court, before making this solemn step of a parenting order and contact,order and so on. Why is that - the inability to get such file, which could go on over many months or years, really so frustrating of the jurisdiction of the Family Court in these sorts of decisions, that it really is the type of impairment that is inconsistency for the purpose of the Constitution.

MR McDONALD: Your Honour, if I could answer your Honour's question by referring to the two very graphic examples that the majority refer to in the majority judgment as to how - a case of the Chief Justice of the Family Court was sitting in at first instance himself: in Re Karen and Rita [1995] FamCA 87; (1995) FLC 92-632 and the Minister of Community Welfare v Y and Another (1988) 12 Fam LR 477. And if I could refer the Court and your Honour Justice Kirby in particular to appeal book page 17 line 30, where these cases are actually referred to in the majority judgment, where they are discussed. The two cases are discussed by the majority on pages 17 and page 18. They provide very clear examples of how the best interests of the child can be missed, if the Court does not have access to particular information which may - - -

GUMMOW J: No, no, it is not a question of the Court having access to information; it is the question of the parties tendering evidence.

MR McDONALD: Well, indeed, your Honour, and I accept that. But in terms of the consequences where that evidence does not end up being tendered, or at least having the capacity to be tendered, can result in a decision which would not promote the best interests of the child. An example of that was Re Karen and Rita, and an even more dramatic example was in the Minister of Community Welfare v Y, where a litigation had gone on for some years, and it so occurred as a result of evidence becoming available, that the notification was from a refuge worker who was acting upon what she thought the wife was saying, when the mother was making no such allegation at all. And the parties had been involved in litigation, no doubt causing great distress, as this litigation has in this particular case.

So, your Honour, to answer your Honour's question, those are the sorts of consequences of just two examples that can flow if that material does not, and accepting what your Honour Justice Gummow says, find its way into evidence.

KIRBY J: The argument on the other side is that it takes the Family Court into the invasion of confidences and it raises up all sorts of hearsay and speculative material and it raises false trails that then take the Family Court down time expensive investigations that might be better addressed to the actual proof of the material ab initio in the Family Court which would be the result of the rejection of your argument.

MR McDONALD: Certainly, your Honour, I accept that, but in terms of what may be relevant material, if there has been actual notification under the Act, as there has in this particular case, by the registrar to the relevant authority and an investigation has taken place, we would respectfully submit that from the perspective of the child - and this is a submission that really should be coming from the separate representative but it comes from us - that from the perspective of the child the results at least of that - I accept, your Honour, there may be - and the notification proper, of course, is protected under the Family Law Act as is the content of that allegation but the result of the investigation, we would respectfully submit, and perhaps other material that the professional people who deal with this - - -

KIRBY J: I suppose you would say that the Family Court itself can be trusted to filter out the things that are irrelevant and only to invade the confidences in matters where it is really important for the welfare of the child - - -

MR McDONALD: Indeed, your Honour.

KIRBY J: - - - and that there should be no complete embargo which is what the application of the Territory law requires.

t16 AR

MR McDONALD: Exactly, your Honour. Your Honour, may I answer your Honour the Chief Justice's question a short time ago? Order 19 provides for the answer of two specific questions, not the language of interrogatories as such, but - - -

GLEESON CJ: I just wondered if you could, by a process of or in the nature of interrogatories, simply ask the husband whether he had abused the child and require him to answer the question on oath?

MR McDONALD: Certainly, your Honour, but - - -

GLEESON CJ: Could you do that?

MR McDONALD: Your Honour, I assume that that course could be taken, yes.

GLEESON CJ: And he could not refuse to answer the question on the ground that the answer might incriminate him?

MR McDONALD: Your Honour, in this case it is not - Mr O's position is very clear.

GLEESON CJ: I was not talking about the facts of the instant case, Mr McDonald. As a matter of principle, in a case where there is an allegation that the father has abused the child in an application for a parenting order, could you interrogate the father and ask him whether he has abused the child and could he decline to answer the question on the ground that the answer might incriminate him?

MR McDONALD: Yes, your Honour, under Order 19 rule 3 of the Rules, he can state or any party can state an objection on the grounds of that objection to the specific question asked.

GLEESON CJ: That would be a valid objection, would it?

MR McDONALD: Your Honour, I mean, that would be a matter for the judge to assess but we would say, yes.

GLEESON CJ: If that objection were taken, would it render ineffective the exercise of the jurisdiction?

MR McDONALD: Your Honour, in term of what this subpoena sought, no, because it is seeking it from a source other than from the father - - -

GLEESON CJ: I really was intending to raise a question of principle and not the detail of the instant case. As a matter of principle, if a father were interrogated in that way and objected to answering the question on that ground, would that be an example of rendering ineffective the exercise of the court's jurisdiction?

MR McDONALD: No, your Honour. On the proper construction of the rule, my answer to that would be no.

McHUGH J: What do you mean "on the proper construction of the rule"? The question must be considered independently of the rule and if the answer is yes - and I think you would have to say it was - then the subrule is invalid because the - - -

MR McDONALD: To the extent that the rule is contrary to the requirement of the Act, certainly, your Honour. In any event - - -

KIRBY J: That is a pretty uncongenial consequence. If you lose completely the right of the privilege against self-incrimination, you lose completely the right of legal professional privilege belonging to the client, you lose completely the public policy privileges. You can invade ASIO, you can do everything else in the nation in the name of the paramount interests of the child.

MR McDONALD: Your Honour, we are not saying that it is a loose cannon that can fire stray shots all over Australia and, God forbid, the ASIO offices, wherever they may be.

KIRBY J: It sounds a bit like it.

MR McDONALD: Here we are not dealing with, as the majority made quite clear, Commonwealth restrictions dealing with ASIO or other information, although there is provision in the Act for certain Commonwealth information dealing with abduction cases and what have you. We say here, in a Part VII application dealing with parenting and contact, where there is a notification to the court and there is an investigation that has taken place and by a Territory authority, we say at least the result of that material, the judge ought to be able to at least inspect the file and a pre-emptive blanket prohibition renders Justice Murray's jurisdiction ineffective or it impairs it or there is a clash in the sense that there is a requirement of the court, an order of the court in the form of the subpoena, and a prohibition - - -

KIRBY J: Or, I suppose you say, it might in the particular case, and that is enough.

MR McDONALD: That is in the particular case. We are not seeking to establish a broad-ranging proposition that will have the mandarins in ASIO quaking in their boots and we are not seeking the Court to cause such ripples, but in terms of this particular case what we say is - and we adopted what Justice Finn said in Reynolds v Kilpatrick (1993) FLC 92-351. The judgment of course has to be read subject to some qualifications that have been dealt with this morning. At page 79,704 in the first column, her Honour Justice Finn deals with a similar situation that occurred in the Australian Capital Territory. Her Honour referred to the case of:

In Official Solicitor to the Supreme Court v K the applicant mother in certain wardship and custody proceedings sought in reliance on principles of natural justice to see certain confidential reports by the Official Solicitor which were to be available as evidence to the court in the proceedings. The trial judge, Ungoed-Thomas J, held that the mother was not entitled to see the confidential reports and in the course of his judgment he made the following statement:

"In the ordinary lis between parties, the paramount purpose is that the parties should have their rights according to law, and in such cases the procedure, including the rules of evidence is framed to serve that purpose. However where the paramount purpose is the welfare of the infant, the procedure and rules of evidence should serve and certainly not thwart that purpose."

I accept the qualifications to that. Her Honour then went on at the bottom of that page to say this:

These authorities support -

and there are other authorities before that -

the proposition, in my view, that a jurisdiction that has as its paramount consideration the welfare of children (as does the jurisdiction conferred by Part 7 of the Family Law Act) carries with it the jurisdiction to ensure that the rules of procedure and evidence applied within the jurisdiction serve the paramount purpose of the jurisdiction.

McHUGH J: Stopping there, that is wrong, is it not? When her Honour says it "carries with it the jurisdiction to ensure that the rules of procedure", she means carries with it the power, does she not?

MR McDONALD: Yes, your Honour. Accepting that qualification, your Honour, and also the qualifications that may apply by reason of the operation of Commonwealth law and Commonwealth secrecy provisions, we nevertheless say that in terms of the context of this particular case from the Territory, that what Justice Finn said in this particular type of case has particular merit and provides a practical way for the judges of the Family Court to exercise their jurisdiction and to promote the best interests of the child.

HAYNE J: Her Honour says in the second column of 79,704:

The court would be entitled to order that such evidence be made available to it.

Under what provision of the Act or rules would such an order be made?

MR McDONALD: Your Honour, following on from her Honour's analysis, it would have to be pursuant to that Part VII jurisdiction.

HAYNE J: The best interests provisions to which we earlier have been taken?

MR McDONALD: Your Honour, that and the judicial obligation to take into account those matters set out in section 68F to - - -

KIRBY J: Is her Honour meaning on the court's own initiative, or is her Honour meaning in the event that a party issues a subpoena, has the documents before the court and requests that the court inspect the documents?

MR McDONALD: I understood that to be on the basis that a party, be it the separate representative or the mother or the father.

KIRBY J: Well, you are not suggesting that the paramountcy principle turns the Family Court into a roving inquisition?

MR McDONALD: No, your Honour, most certainly not.

KIRBY J: Is there any discussion in academic literature or in the journals about this problem for the interaction between welfare jurisdiction and the Family Law Act?

MR McDONALD: Well, as Justice Fogarty points out in his judgment, your Honour, there has been in all other jurisdictions - - -

KIRBY J: I realise there is the whole series. He sets out all the different statutes, but there is a general problem here. I think I have seen in lay journals reference to the issue. Are there any scholarly examinations of the problem that is before the Court, or not, that you are aware of?

MR McDONALD: Your Honour, I am not aware of any, but that - - -

KIRBY J: We do look at these things, you know. Counsel do not ever seem to think so, but we do, if it can be looked at by the - - -

MR McDONALD: Your Honour, what I will have done is that that research will be done, provided to everyone at the Bar table and at least provided to the Registry of the Court in copies for each Judge, all that can be found. I am sorry, your Honour, I cannot assist you immediately, but I can indicate that we will undertake that research and provide that to the Court.

KIRBY J: If it is relevant.

GLEESON CJ: Yes, thank you.

MR McDONALD: Indeed. Can I just address, now in reply, to one of the points that my friend - - -

GLEESON CJ: How long do you expect to require for the completion of your argument?

MR McDONALD: Your Honour, would another ten minutes be stretching the - - -

GLEESON CJ: Yes.

MR McDONALD: It is this, and your Honour Justice Kirby asked Mr Riley yesterday that at the end of the day the Court's role is to write a judgment that will provide some practical assistance to the justices of the Family Court. In reply to my friend, but also in terms of quite a vital plank to my friend's argument, my friend said that the paramountcy principle, the slight change in wording - that the paramountcy principle now applies only at the point of decision making and not every step on the route. In paragraph 15 of their written submissions that point is made and cases are cited. We would submit that that proposition is not supported on a proper or purposive construction of Part VII, particularly the provisions of section 68E(1), which is the subdivision determining the best interest of a child, that:

This subdivision applies to any proceedings under this Part in which the best interests of a child are the paramount consideration.

We would say that the cases cited, Pasternak v Relationships Australia and J v J, where there are dicta statements of two differently constituted Full Courts of the Family Court are not supportive, certainly do not determine that issue, are dicta statements only, but as your Honour Justice McHugh said yesterday, can make decisions regarding relevance at trial or interlocutory proceedings or public interest immunity applications, make them impossible to be able to determine unless you have the operative principle.

It is in our submission certainly a matter dealing ,in reply to my friend but also to your Honour Justice Kirby's request if there was anything that would provide assistance, this is one of those issues that is on the edge of discussion but where we would submit the paramountcy principle applies at all stages of the proceedings.

GUMMOW J: Do you agree with Mr Riley,that in answering the question in the stated case with its reference to the Family Law Act one looks to this new Division 10.

MR McDONALD: The provision since the Family Law Reform Act? Yes, your Honour.

GUMMOW J: Yes.

MR McDONALD: Yes, we do. The second issue by way of rebuttal is a point made by Mr Riley and by my learned friend, Dr Griffith, that where it is intended that an order of the Family Court should override other laws ,specific provision is made. That appears in the Commonwealth's written submissions at 24 April 1998 at paragraph 3.4. The only two provisions that are referred to are section 67M(6) and section 67N(10) which relate to location orders and Commonwealth information orders.

As I understood the argument, that these specific provisions indicated that where there was an intention to override laws, specific provision is made. We make these quick points in response to that. As the majority found at appeal book page 34 line 45 these are specific provisions addressed to specific purposes and certainly include the cases of actually locating a child and include abduction cases. These sections are primarily directed to Commonwealth departments, not exclusively but primarily to Commonwealth departments and instrumentalities ,and so the need to specify and specifically address this issue is apparent, it being potential for Commonwealth legislation to provide to the contrary. As the majority said at appeal book pages 34 to 35 it is not surprising that the legislature made such provision.

Section 67M(6) requires a person to whom a location order applies that they must comply with it and under section 67J(1):

A location order is an order made by a court requiring:

(a) a person to provide the Registrar of the court with information that the person has or obtains about the child's location; or -

under section 67J(b) that the Commonwealth department has about that location. Similarly, section 67N(10) provides that a:

person to whom a Commonwealth information order applies must comply with the order in spite of anything in any other law.

We submit that given the fundamental importance of being actually able to locate a child for the exercise of Part VII jurisdiction and for all manner of applications to be made, and given a number of Commonwealth secrecy provisions that might apply, we say that there is a clear reason why those provisions are there but we say when the Act is read as a whole in Part VII, and on a purposive construction of the Act, especially sections 43(c), section 60B, 68F(2) and 68E and 67ZK that the legislature has evinced an intention that where it is intended that the order of the Family Court that, in effect, no such intention as my friend, Mr Riley, or Dr Griffith contends, is made out.

Finally, your Honours, in relation to the Evidence Act, the construction argument we adopt, as we did in the court below, the construction argument of Dr Griffith. In relation to the Evidence Act argument, we have put our submissions and we do not seek to put them any higher before the Court today. Thank you. May it please the Court.

GLEESON CJ: Thank you, Mr McDonald. Yes, Mr Solicitor.

MR PAULING: Very briefly, your Honours. Your Honours asked about the power to issue subpoenas under the Family Law Act. Mr Riley said he would get back and he has asked me to answer the question. The starting point is section 34 of the Family Law Act which is the power of the Court to issue orders. One goes from there to section 37 of the Act which provides that:

In relation to a proceeding under this Act, the officers of the Court have such duties, powers and functions as are given by this Act or the Rules of Court or by the Chief Judge.

So, there is your power of delegation, as it were. That is leading into your power of delegation which is 37A and that then leads you to Order 28 in the Rules and Order 28 is headed:

Subpoenas. Subject to subrules (1A) and (1B), in any proceedings, the Registrar of the filing registry shall, at the direction of the court, and may, at the request of a party to the proceedings, issue a subpoena on behalf of the court -

etcetera. It includes:

to - give evidence and produce any books, documents or things in the possession, custody or control of the person or persons named in the subpoena that are referred to in the subpoena -

and the actual rule - I am sorry, section 123 is the rule-making power, that is what I was looking for, and we would suggest that the power to make rules in respect of subpoenas is sufficiently understood in the broader expression in relation to the practice and procedure to be followed in the Family Court rather than - - -

GUMMOW J: Yes, and the power of contempt given by section 35 which is one of those sections you are taking us to, that is the power of contempt.

MR PAULING: Yes.

GUMMOW J: That seems to be qualified by Part XIIIA.

MR PAULING: I beg your pardon, your Honour?

GUMMOW J: Part XIIIA. Section 112AA and following seem to be a qualification of section 35. So if you disobey a subpoena you are not dealt with as if you disobeyed a subpoena issued here, you are dealt with under 13A, from what I can see.

MR PAULING: Yes. But, as far as we can see, they are the provisions that are relevant to that question. May we then say, very briefly, that the written submission that Dr Griffith had handed up when - endorse entirely - but would add that once one follows through the process of 76(ii) which must be read with 77(I) - and it was noted yesterday that 77(i) of the Constitution only refers to two types of court, a Federal court or a State court vested with federal jurisdiction, that is, does not mention a Territory court. We would go on to add to submission that whereas here a court is established under an Act of the Parliament in conformity with Chapter III, it exercises federal jurisdiction even when in a Territory, which was really our starting point yesterday.

Finally, that, in our submission, the relevant test between Commonwealth laws and Northern Territory laws is, in fact, one of repugnancy but in this case, whether it be repugnancy or inconsistency, or whether those two terms mean the same, the result in this case would be the same whether we are talking about invalidity or inoperability, and that - - -

KIRBY J: Why do you say that? The Family Court is set up. It has the obligation to make very important decisions concerning the welfare, parenting, access to children. Relevant to that can be decisions relating to child abuse including sexual abuse. A vital pearl of information may exist in the file of your department. It could be absolutely critical in a particular case, yet on your theory, in the intersection between the two Acts, the Family Court simply cannot have it. Now, that does interfere in the exercise of their welfare jurisdiction.

MR PAULING: Your Honour, that is not the proposition I was putting. The proposition I was putting was that if the two provisions are inconsistent, then, whether the real test or the relevant test of what happens between Commonwealth laws and Northern Territory laws is repugnancy or inconsistency, the result would be the same. If there is the relevant inconsistency such that the Family Law Act otherwise provides in terms of section 79 of the Judiciary Act - - -

KIRBY J: Nothing is added by using the word "repugnant" as distinct from "inconsistent".

MR PAULING: No, that is all I was putting. Finally, in any event there is a reading-down provision or a severance and saving provision in section 59 of the Interpretation Act Northern Territory.

GUMMOW J: Have we got a copy of that?

MR PAULING: I can make copies available to the Bench, yes, and that is in the usual terms, but if I read it:

Every Act shall be read and construed subject to the Northern Territory (Self-Government) Act of the Commonwealth and any other Act of the Commonwealth relating to the power of the Legislative Assembly to make laws in respect of particular matters, and so as not to exceed the legislative power of the Legislative Assembly, to the intent that where any Act would, but for this section, have been construed as being in excess of that power it shall nevertheless be a valid Act to the extent to which it is not in excess of that power.

Now, that may have some shortcomings in the present application since really the issue we are talking about here is jurisdiction, not power, but I bring that to your Honours' attention. Those are the only matters I wanted to mention in reply.

GLEESON CJ: Thank you, Mr Solicitor. We will reserve our decision in this matter.

AT 11.11 AM THE MATTER WAS ADJOURNED