Alternative Law Journal
|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Alternative Law Journal |
|
ADIVA SIFRIS
On 19 June 2003, the Full Court of the Family Court of Australia found in B and B and Minister for Immigration and Multicultural and Indigenous Affairs, the high profile case involving the Bahhtiyari family, that its welfare jurisdiction extended to ordering the release of children from immigration detention. The Federal Govemment immediately sought leave to appeal the decision in the High Court. On 2 April 2004, Adiva Sifris delivered a conference paper at the workshop entitled 'Children in Immigration Detention: The Policy, the Practice and the Prognosis'. That conference paper forms the basis of this article. The article analyses the Family Court's welfare power and examines its sources. A second article (following) entitled 'Children In Immigration Detention: The Bakhtiyari family in the High Court and Beyond' was written subsequently by Adiva.Sifris and Tania Penovic to examine the implications of the High Court decision delivered on 29 April 2004 concerning the role of the Family Court in dealing with children in immigration detention.
On December 2002 public attention turned to the Family Court of Australia when, in a historic first, the Full Court heard an appeal for the release of children held in immigration detention. The fundamental question before the Court in B and B and Minister for Immigration and Multicultural and Indigenous Affairs ('B Family Court'),[1] was whether the Family Court in the exercise of its welfare jurisdiction (pursuant to s 67ZC of the Family Law Act 1975 (Cth) and injunctive powers (pursuant to s .68B of the Family Law Act) had jurisdiction to order the release of children from immigration detention. This article explores what is meant by the welfare power and examines the constitutional powers relied on by the Family Court in utilising the welfare jurisdiction to make orders about children in immigration detention.
The Full Court summarised the five main issues before it as:
• whether the welfare jurisdiction applies to children in South Australia
• whether the marriage, divorce and incidental powers in the Constitution ·enables the Family Court to make orders against third parties for the protection of children
• whether the external affairs power in the Constitution allowed for the making of similar orders
• whether the welfare jurisdiction of the Family Court equates with the parens patriae jurisdiction and whether it can be used for the making of such orders
• the relationship between the making of these orders and the Migration Act 1958 (Cth).[2]
This article examines three of the five issues before the Full Court. These may be summarised as the origins and extent of the welfare power.
The salient facts of the case are that in July 2002 Roqia Bakhtiyari, the mother of two boys, Alamdar and Muntazar aged 14 and 12 applied, as next friend, to the Family Court for orders that the Minister for Immigration and Multicultural and Indigenous Affairs ('the Minister') release them from immigration detention. The grounds on which Alamdar and Muntazar relied were, broadly, that the continuing detention was harmful to their welfare. This application was launched immediately following the boys' escape from and retum to immigration detention.[3] The children's father Ali Bakhtiyari also intervened in the proceedings, seeking orders that the two boys and their three younger sisters reside with him; or, in the alternative, that he have regular contact with them and that orders be made to protect the children while they remained in detention. At the time the application was made Ali Bakhtiyari was not in detention but he has since been detained. The trial judge, Dawe J found that the applications were 'misconceived' and 'fatally flawed' and that the Family Court had no jurisdiction to make orders in respect of children held in immigration detention. Her Honour accordingly dismissed the application. Notices of appeal were filed and the Full Court of the Family Court delivered judgment on the 19 June 2003. For those who were hoping for a positive response, the Full Court did not disappoint-and the majority (Nicholson CJ and O'Ryan J) decided that if the detention was unlawful the Family Court had jurisdiction to order the release of children in immigration detention by using its welfare power.
The delight of supporters was, however, short lived. The Full Court remitted the matter to a trial judge for rehearing on the merits. Strickland J found that although the detention of the children was unlawful, to release them would not be in their best interests.[4] Subsequently, a differently constituted Full Court of the Family Court overturned Strickland J's decision and the five children were finally released from detention.[5]
Hopes once again soared in those empathetic to the plight of children in detention at the prospect of using the Family Court as a forum to mount applications for the release of child asylum seekers. However, in two decisions after B Family Court, Chisholm J concluded that s 74 of the Migration Act applied. Section 474 is a privative clause pursuant to which a range of decisions made under the Migration Act are 'final and conclusive' and 'must not be challenged, appealed against, reviewed quashed or called into question in any court'. Chisholm J concluded that s 474 prevented the court from making orders. restraining the Minister from keeping the children in a detention centre.[6] While a privative clause could be ousted if there was a 'jurisdictional error' or other sound basis for doing so, there was no basis for ousting s 474 in the circumstances of the present case.
The first decision before Chisholm J, HR & DR and Minister for Immigration and Multicultural Affairs and Indigenous Affairs ('HR') concerned the release of parents and their three children from the Baxter Detention Centre. Chisholm J decided that the most likely interpretation of the majority's decision in B Fam1fy Court was that 'the Family Court can make orders relating to the welfare of children in detention to the extent that those orders do not conflict with s 474'.[7] The Full Court had not given detailed consideration to the effect of s 474 on decisions pertaining to the welfare of children in immigration detention as this issue had not been argued In HR Chisholm J also discussed the possibility of orders being made for the release of parents in immigration detention and concluded that the welfare power does not permit the making of orders with respect to adult members. The end result was that Chisholm J dismissed the application for release of the children and their parents from immigration detention.
Unlike the case of HR where the application was made for the release of the entire family including parents from detention, in the second case before Chisholm J, AI and M v Minister for lmm1grat1on and Multicultural and Indigenous Affairs ('Al’),[8] an application was made for the release of the children only. Furthermore, whilst in HR the case was argued on the assumption the detention was unlawful, in A/ a submission was made that the detention of the children was indefinite and thus unlawful. His Honour took the view in Al that a child's !incapacity to bring detention to an end does not automatically make the detention illegal. Nor for
that matter does the failure of a parent to bring the detention to an end when they have the capacity to do so by agreeing to repatriation but choose not to. His Honour concluded that the detention of children while their status is being determined in court proceedings does not make the detention indefinite as it will cease when the legal process is completed. The detention of the children was not indefinite and hence not illegal and, therefore, the Court did not have the power to release the children. Quite obviously the Family Court was struggling with the interaction between the Government's immigration policy, the nuances of the Migration Act and the implementation of the majority decision in B Family Court.
Reviews from administrative decisions about asylum seekers may be brought either in the Federal Court (including the Federal Magistrates Court) or the High Court. One can only speculate on the strategic reasons for making application to the Family Court of Australia. Quite clearly, if the Family Court is to have jurisdiction in these matters children must be central to the 'application. Recent decisions in the Federal Court have exposed some limits on the power of the Executive to detain asylum seekers. [9] However, any judicial decision made must comply with ss 189 and 196 of the Migration Act These sections make it clear that unlawful non citizens must be detained until they are granted a visa or are removed from the country.[10] These sections are mandatory and allow little flexibility or discretion in the decision-making process. In contrast, the Family Law Act affords the decision-maker a wide discretion when making orders concerning children. The nebulous 'best interests of the child' is the paramount consideration in making a parent1ng or a welfare order. One can understand a preference to make the application in this jurisdiction rather than the Federal Court which is bound to apply the immutable rule-based system contained in the Migrat1on Act Furthermore, as the application concerned the release of children, the Family Court would seem the logir:al choice -after all it is the 'Family' Court.
The welfare power holds the key to the ability of the Family Court to release children from immigration detention. What is meant by the welfare power? In the Secretary, Department of Health and Community Services (NT) v JWB and SMB ('Marion's case') the majority of the High Court regarded the welfare power as conferring jurisdiction on the Family Court 'similar to the parens patriae jurisdiction, without the formal incidents of one of the aspects of that jurisdiction, the jurisdiction to make a child a ward of court'.[11]
The parens patriae jurisdiction is the common law jurisdiction used to protect infants and persons of unsound mind. It is based on the need for the law to take care of those who cannot take care of themselves. While initially the monarch exercised this jurisdiction, it eventually devolved upon the Lord Chancellor and was inherited by the superior courts in Australia.[12] In the 19th and early part of the 20th centuries it was used almost exclusively to protect the property of minors on the death of their parents or if the parents were unable to protect the children's rights.
From the inception of the Family Law Act in 1976 until extensive amendments in 1983 the Family Court had no jurisdiction to make orders in respect of the welfare of the child. This jurisdiction was created in 1983 pursuant to s 64(1) which provided that orders could be made 'in proceedings in relation to the custody, guardianship or welfare of, or access to a child'.
The Family Law Reform Act 1995 (Cth) ('the Reform Act') replaced the entire Part VII of the Family Law
Act which dealt with custody, guardianship and access to children. It was thought that this terminology had proprietary connotations and children were regarded as the spoils of victory to the parent gaining custody. Accordingly, the notion of guardianship was largely done away with and 'residence' and 'contact' replaced 'custody' and 'access'. Section 67ZC was introduced as part of these amendments.
This section provides that 'in addition to the jurisdiction that the Court has under this Part ... the Court also has jurisdiction to make orders relating to the welfare of the child'. The Explanatory Memorandum to the Reform Bill dispels lingering doubts as to the meaning of the 'welfare' jurisdiction. It unequivocally states that the welfare jurisdiction is 'the parens patriae jurisdiction as explained by the High Court in ... [Marion's case].'[13] Thus the welfare jurisdiction was established as an independent jurisdiction. It was no longer grouped together with custody, access and guardianship, and · unlike orders for contact and residence it does not constitute a parenting order. However, importantly, when deciding whether to make a welfare order, regard must be had to the 'best interests' of the child.
Thus when the Full Court was considering B Family Court it was firmly established that the Family Court had the power to exercise its 'welfare' jurisdiction in a manner akin to that used in the exercise of the parens patriae jurisdiction. The next question is whether the release of children in immigration detention comes within the parameters of the 'welfare' jurisdiction.
Section 43 of the Family Law Act provides the guiding principles which the Family Court is to apply when exercising jurisdiction under this legislation. Subsections (b) and (c) of this section emphasise the need to 'give the widest possible protection to the family' and 'to protect the rights of children and promote their welfare'. In addition, s 60B(1) which was incorporated into the Family Law Act through the Reform Act sets out the objects underlying orders in respect of children. It provides that the object of Part VII:
is to ensure that children receive adequate and proper parenting to help them achieve their fulf potential, and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
If it is accepted that children in immigration detention are suffering from harm in circumstances where their parents do not retain their full parental authority, then an order protecting such children and ordering their release from immigration detention is one which falls within a welfare order. After all the ancient parens patriae jurisdiction evolved to assist those who cannot take care of themselves.
Once it is determined that the situation is one which broadly falls within the welfare jurisdiction, the next question is whether the Family Court has the power to make that particular order. The Family Court of Australia is a specialist Federal Court created pursuant to the Family Law Act. It derives its powers to make orders from s 51(xxi), (xxii) and (xxxix), of the Constitution, the marriage, divorce and matrimonial causes and incidental powers. The fact that the children are born into marriage does not automatically bring those children within the marriage power and within the jurisdiction of the Family Court. Something more is needed: there must be a sufficient connection between the orders sought and the marriage power.
The welfare jurisdiction is a broad one. This is evidenced in the key decision of Marion's case.[14] This case concerned the non-therapeutic sterilisation of a mentally handicapped girl of14. The majority of the High Court confirmed that the consent of the court (not necessarily but normally the Family Court) is required for serious and permanent medical procedures such as sterilisation. In granting such consent the Family Court is exercising its welfare jurisdiction. The majority of the High Court held that the Family Court had jurisdiction to consent to orders for sterilisation notwithstanding that these orders fell outside the ambit of traditional Family Court orders, and there was no matrimonial dispute before the Court. While the jurisdiction is a broad one it does have limitations. Its operation is limited by reference to the constitutional heads of power.
In B Family Court the Full Court concluded that the constitutional validity of the welfare jurisdiction of the· Family Court may be traced to the marriage, divorce and matrimonial causes powers provided the orders sougharise out of or are sufficiently connected to the marriage relationship. Furthermore, the Court decided that aorder in respect of the welfare of the child can be made against a third party. The majority held that the marriage power was attracted as these children born of a marriage between their parents were brought into Australia by their parents. As a result of their parents' actions they were detained and were seeking the courts' assistance to protect them from harm. The protection of the children in immigration detention was sufficiently connected to the marriage relationship to enable the Court to make orders utilising the Family Court's welfare jurisdiction. Furthermore, according to Nicholson CJ and O'Ryan J, because the parents were confined there were limitations on the parental authority, and the Minister's power over the placement and manner of detention constitutes a 'type of de facto parental authority and certainly affects their parenting'. The welfare jurisdiction can be invoked 'to make binding orders for the protection of a child which were patently beyond the powers of parents'.[15] Hence, once there was a finding of unlawful detention the Court may, in the exercise of its welfare jurisdiction, make orders for the Minister to release children from detention.
Ellis J dissented and concluded that an order releasing children from a particular form of immigration detention was not sufficiently connected with the relevant constitutional heads of power. However, Ellis J found (as did the majority) that the welfare power extended to the provision of adequate, proper and prompt medical treatment for children and ensuring that they are not exposed to violence and trauma. Such matters arise out of and are aspects of the marriage relationship.
The children under consideration were children of a marriage and once the majority concluded that the welfare power to release children from immigration detention was supported by the marriage, divorce and matrimonial causes powers, it was unnecessary to further explore the constitutional underpinnings of the welfare power. However, the Full Court then proceeded to consider the position of ex-nuptial children.
Between 1986 and 1990 all states with the exception of Western Australia passed almost identical legislation referring power over child custody, guardianship, access, maintenance and child-bearing expenses to the Commonwealth. In the context of these 'matters' the Family Court thus has jurisdiction in respect of all children, nuptial and ex-nuptial. The 'welfare' jurisdiction is not mentioned in the states' referral of powers legislation. The Family Court cannot exercise its welfare jurisdiction in respect of ex-nuptial children unless an additional source of constitutional power is available.[16]
The balance of this article examines the majority's alternative basis for finding that the making of orders for the release of children in immigration detention was not beyond its powers. This involves the novel conclusion that if the marriage, divorce and incidental powers were insufficient, that is, if Ellis J was correct and there was an insufficient connection to the marriage, divorce and incidental powers, resort could be had to the external affairs power contained in s 51 (xxix) of the Constitution. According to Nicholson CJ and O'Ryan J (Ellis J dissenting) the Convention on the Rights of the Child ('CROC), or portions of CROC, has been incorporated into the Family Law Act hence enlivening the external affairs power. The effect of this conclusion is that the welfare power can be exercised in respect of all children, nuptial and ex-nuptial.
Justice Dawe at first Instance acknowledged that CROC influenced the contents of the Family Law Act but held that nothing in the Family Law Act supports a conclusion that it implements any part of CROC. Her Honour found that CROC lacked specificity, was aspirational and was thus unable to be implemented.
The gravamen of the majority's decision in B Family Court rests on the contention that CROC has been incorporated into Australian Law. This raises the question: how do international treaties become part of Australian law? Australia follows a dualist system. An international treaty even if ratified does not become part of domestic law unless and until a statute has been passed incorporating it into domestic law. It is, however, a fundamental principle that where possible, domestic law should accord with international law.[17]
This established view of the status of an unincorporated treaty in Australia was to some extent modified in Minister for Immigration and Ethnic Affairs v Teoh ('Teoh').[18] In this case it was not argued that CROC had been incorporated into Australian law. Rather it was asserted that the decision-maker had failed to pay due regard to the provisions of art 3.1 of CROC, requiring that in actions concerning children the best interests of the child be a primary consideration. This argument was upheld not because the decision-maker was legally obliged to put the interests of the child first but because Australia's ratification of CROC created a 'legitimate expectation' that the convention would be taken into account in the decision-making process. In February 2003 in Re Minister for Immigration and Multicultural Affairs; Ex Parte Lam ('Lam') the High Court was critical of the 'legitimate expectation' approach adopted in Teoh.[19] It may be that the current High Court will overrule the decision in Teoh. However, as things stand 'legitimate expectation' remains part of Australian law and the test continues to be applied.
CROC was opened for signature by the General Assembly on 20 November 1989, entered into force on 2 September 1990, and Australia deposited its instrument of ratification on 17 December 1990. It came into force in Australia on 16 January 1991.
The influence of CROC is patently obvious in Part VII of the Family Law Act. Section 60B(1), the 'objects clause', provides that children receive adequate and proper parenting (corresponding with arts 3(2), 5, 7, and 18 of the Convention). Likewise, the four underlying principles contained in s 60B(2) reflect a number of articles in CROC:
• children have the right to be cared for by both parents (art 7)
• children have the right to contact with both parents and with others who are significant to their care, welfare and development (art 9(3))
• parents share duties and responsibilities concerning the care welfare and development of their children (art 5)
• parents should agree about the future parenting of their children -no counterpart in the Convention.[20]
The Explanatory Memorandum to the Reform Act explicitly states that the objects clause (s 60B) is based on CROC.[21] An examination of the parliamentary debates reflects that Australia has ratified CROC and that the Convention contains a number of basic rights concerning the raising and development of children.[22] However, CROC is not mentioned in the final form of the Family Law Act.
In rejecting the trial judge's conclusion that CROC was 'aspirational' and incapable of implementation, the majority referred to the judgment of McHugh and Gummow J in Lam's case where their Honours confirmed that while some treaties may be aspirational there was no suggestion that CROC was a treaty of this 'limited nature'.[23]
Once the majority was satisfied CROC was sufficiently specific to allow implementation, they considered· whether Parliament specifically intended to implement CROC when amending Part VII. They recognised that express reference to CROC in the legislation would elevate the relevance of the Convention but indicated that lack of reference failed to signify that CROC was irrelevant. Furthermore, s 60B is largely drawn from CROC and this provides considerable support for the argument that welfare power gains support from CROC and thus the external affairs power. 'This is because following the enactment of s 60B and the simultaneous insertion of s 67ZC the later section must be interpreted in the light of the former and not simply a re-enactment of the original welfare jurisdiction.'[24]
Particular reference in B Family Court was made to arts 3(2) and 19 of CROC. These articles relate to the need for state parties to protect children. In this way the disparate threads in the relationship between CROC, the welfare jurisdiction and children in- immigration detention were drawn together. The majority accepted that Parliament in passing s 67ZC has implemented parts of CROC which are supported by the external affairs power.
The idea of utilising the external affairs power on the family law stage is not a novel one. Pursuant to this power in 1986 the Family Law (Child Abduction Convention) Regulations were enacted as regulations to the Family Law Act. These regulations gave effect to the Convention on the Civil Aspects of International Child Abduction. The former Chief Justice of the Family Court Nicholson CJ has been a staunch advocate of Australia abiding by its international obligations and incorporating treaties which it has ratified through the use of the external affairs power into domestic law. In a paper delivered in 2002, His Honour declared that decisionmaking about asylum seekers should 'properly be understood as an aspect of family law' for three reasons:
• refugees consist of families including children
• the federal minister may be regarded as the guardian of unaccompanied minors
• the parens patriae jurisdiction might be utilised in respect of asylum seekers.[25]
From a humanitarian perspective the Family Court is better suited to deal with children in immigration detention than the Federal Court. It is a specialist court with an infrastructure designed and to some extent equipped to deal with children in crisis.
The majority decision in the Family Court to a large extent dismantled the constitutional barriers for the. Family Court to exerc1se a broad welfare jurisdiction. The article, 'The Bakhtiyari family in the High Court and beyond' (p 217), illustrates that the High Court, to a large extent, rejected the Family Court's characterisation of the extent of the welfare jurisdiction. However, the prospect of the Family Court exercising a wide welfare jurisdiction, while in tatters, has not been eliminated. Remnants linger which may be utilised in the future.
REFERENCES
[1] [2003] FamCA 451; (2003) FLC 93-141
[2] See B Family Court [2003] FamCA 451; (2003) FLC 93-141, 78,311.
[3] Alamdar and Muntazar were the subject of significant media attention when they escaped from Woomera Detention Centre in June 2002 They sought asylum without success from the British Consulate in Melbourne and were returned to Woomera [4] Minister for Immigration and Multicultural and Indigenous Affairs and B & B (Unreported, Fam1ly Court of Australia, Strickland J). 5 August 2003.
[5] B and B and Minister for Immigration and Multicultural and Indigenous Affairs [2003] FamCA 621 (Unreported, Kay, Coleman and Collier JJ. 25 August 2003).
[6] See HR & DR and Minister for Immigration and Multicultural and Indigenous Affairs [2003] FamCA 616; (2003) FLC 93-156, 78,575. See also Al &AA v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FamCA 943 (Unreported, ChiSholm J, 25 September 2003).
[7] [2003] FamCA 616; (2003) FLC 93-156, 78,575
[8] [2003] FamCA 943 (Unreported, Chisholm J, 25 September 2003).
[9] See, eg Minister for Immigration and Multicultural and Indigenous Affairs v AI Masn [2003] FCAFC 70; (2003) 197 ALR 241
[10] Kristie Dunn and Jessica Howard, 'Reaching Behind Iron Bars Challenges to the Detention of Asylum Seekers', (2003) 4 Australian Review of Public Affairs, 45, 51
[11] [1992] HCA 15; (1992) 175 CLR 218, 256 (Mason CJ and Dawson Toohey and Gaudron JJ, Joint Judgment)
[12] See Alistair Nicholson, Margaret Hamson and Danny Sandor, 'The Role of the Family Court in Medical Procedure Cases' in Lee Ann Basser Marks (ed), Children on the Agenda the Rights of Australia’s Children (2001)
[13] See Further Supplementary Memorandum, Family Law Reform Bill 1994 (Cth), 73
[14] Department of Health and Community Services v JWB and 5MB [1992] HCA 15; (1992) 175 CLR 218.
[15] B Family Court (2003) FLC 93-141.78,342 referring to Deane J in Manon's case (1992) 175 CLR
[16] See John Seymour, 'The Role of the Family Court of Australia in Child Welfare Matters' (1992) 21 Federal Law Review 1
[17] Anthony Mason, 'International Law as a Source of Domestic Law' in Donald R Rothwell (ed), lnternational Law and Australian Fedemlism (1997) 210, 220.
[18] Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273.
[19] Re Minister for Immigration and Multicultural Affairs, Ex Parte Lam [2003] HCA 6; (2003) 195 ALR 502.
[20] See Juliet Behrens and Phillip Tahmindjis, 'Family Law and Human Rights' in David Kinley (ed), Human Rights in Australian Law (1998) 169,177.
[21] See Explanatory Memorandum, Family Law Reform B/111994 (Cth), 2.
[22] Commonwealth, Parliamentary Debates, House of Representatives, 8 November 1994, 2757 (P Duncan)
[23] B Family Court [2003] FamCA 451; (2003) FLC 93-141, 78,344. See earlier discussion of these cases.
[24] B Family Court [2003] FamCA 451; (2003) FLC 93-141, 78,347.
[25] A Nicholson, 'Australian Judicial Approaches to International Human rights Conventions and "Family Law"' (Paper presented at the The University of Western Cape Family Law Conference, Cape Town, 2002) 1-30
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/journals/AltLawJl/2004/66.html