Minister for Immigration and Multicultural and Indigenous Affairs v B [2004] HCA 20; 219 CLR 365; 206 ALR 130; 78 ALJR 737

Minister for Immigration and Multicultural and Indigenous Affairs v B [2004] HCA 20; 219 CLR 365; 206 ALR 130; 78 ALJR 737 - HCA 2004 case summary — Zoe

[18]

GLEESON CJ AND McHUGH J. The question in this appeal is whether the Family Court of Australia has jurisdiction to order the Minister for Immigration and Multicultural and Indigenous Affairs to release children who are detained in an immigration detention centre in accordance with the Migration Act 1958 (Cth) ("the Migration Act"). In our opinion, the Family Court has no jurisdiction to make such an order. Nor has it any jurisdiction to make orders concerning the welfare of children who are held in immigration detention.
The principal difficulty in the appeal arises out of the complexity of the legislative scheme contained in Pt VII of the Family Law Act 1975 (Cth) ("the Act") dealing with children, a complexity that is not reduced by a form of drafting that is sometimes used in federal legislation. This form of drafting commences with the enactment of a provision that, standing alone, suggests an absence of constitutional constraints on the federal Parliament. Other sections of the legislation, however, then operate to confine the primary provision and bring its content within one or more heads of federal constitutional power. No doubt the drafters of legislation in this form can defend it as being no more than a logical set of propositions that conduce to clarity of meaning. Nevertheless, in the present case it appears that this form of drafting does not convey clearly to the reader the object of the legislation. What is clear to the drafter is not necessarily clear to the reader. The drafter has the advantage of knowing the object that he or she is seeking to achieve. As the argument in this appeal and the division of opinion in the Family Court indicates, however, the object of the drafter may not be as clear to those whose task is to read and interpret the legislation. We think that it may also fairly be said that the drafter of significant parts of Pt VII has not always kept in mind the constitutional requirements of ss 75, 76 and 77 of the Constitution. Section 77 confines the jurisdiction of federal courts to the "matters" mentioned in ss 75 and 76 of the Constitution. In turn, this requires that the conferral of jurisdiction identify - expressly or inferentially - the substantive legal rights, privileges, liabilities or duties of persons who are the subject of the conferral or investing of federal jurisdiction for the purposes of assessing whether jurisdiction has been conferred in respect of a constitutional "matter".

[19]

The children concerned in this appeal are two sons and three daughters of persons who, like the children, are unlawful non-citizens within the meaning of ss 4 and 14 of the Migration Act. In July 2002, the children and their mother were being held at an immigration detention centre at Woomera in South Australia, a centre established under that Act. At the time this appeal was heard, but not in July 2002, the father of the children was detained in an immigration detention centre. In July 2002, the two sons commenced proceedings by their mother as their next friend in the Family Court of Australia in its South Australian registry. Later, the mother was given leave to join the three female children as parties to the proceedings. Among the orders sought by the male children was a mandatory order under s 67ZC of the Act that the Minister "be required to release [the children] from detention at the Woomera Immigration Reception Processing Centre." The father intervened in the proceedings on behalf of all five children and also sought various orders against the Minister.
In October 2002, Dawe J dismissed both the applications by the two male children (the three female children had not yet been joined as parties to the proceedings) and by the father. Her Honour held that the Family Court did not have jurisdiction in South Australia to make the orders sought. However, an appeal to the Full Court of the Family Court succeeded, and the matter was remitted for rehearing before another judge, who dismissed the applications. After another appeal, the Full Court ordered that the children be released from immigration detention until the final hearing of their applications. In the first appeal the majority of the Full Court, Nicholson CJ and O'Ryan J, said that the provisions of subdiv F of Div 12 of Pt VII of the Act "assume the conferring of jurisdiction upon the court in respect of children of marriages without limitation."[1] Their Honours held that the welfare jurisdiction of the Family Court in respect of children was not limited to disputes between parents concerning custody and access to children. The majority said that, when the welfare of children requires it, the Court could make orders against third parties[2]. The majority was also of the view that s 67ZC of the Act gave effect to the United Nations Convention on the Rights of the Child[3], and that the constitutionality of s 67ZC was not confined by the marriage and divorce powers conferred on the federal Parliament by s 51(xxi) and (xxii) of the Constitution[4].
After the hearing of the first appeal to the Full Court of the Family Court, that Court granted a certificate under s 95(b) of the Act, giving the Minister a right of appeal to this Court on the ground that the case involved "an important question of law or of public interest". The Full Court certified that four such questions were involved in this case. In the view we take of this appeal, however, it is necessary to refer only to question 1, which raises the following issue for determination:

[41]

Section 63E of the Act, as it then provided, gave the parents, as guardians of the child, responsibility for the long-term welfare of the child and all the powers, rights and duties that, apart from the Act, vested by law or custom in a guardian. Because the Act vested those rights, powers and duties and that responsibility in the parents, a controversy between the parents and the Secretary, as the child's representative, concerning the right of the parents to authorise her sterilisation gave rise to a "matter" for the purpose of Ch III of the Constitution. Hence, the first of the two main questions gave rise to a "matter" within the meaning of s 77 of the Constitution.
The second question also gave rise to such a "matter". Section 63E made the parents responsible for the long-term welfare of the child, and s 64 authorised the Family Court to make orders for the welfare of the child. At least by implication, Pt VII of the Act gave the parents the right to seek an order to advance or protect the welfare of the child. Accordingly, the second question in Marion's Case concerned a "right or privilege or protection given by law"[29]. It was analogous to those "matters" concerning children over which the Court of Chancery has long exercised parens patriae jurisdiction.
It is beside the point whether an application for such an order is or is not opposed, or involves or does not involve a lis inter partes in an application, such as that involved in Marion's Case. As Dixon CJ and McTiernan J pointed out in R v Davison[30], courts make many judicial orders that involve no lis inter partes or adjudication of rights, yet they exercise judicial power. Further, any "matter" that involves the exercise of judicial power and answers one or more of the subject matters described in s 75 or s 76 of the Constitution is necessarily a "matter" for the purpose of s 77 of the Constitution. After referring to many well-known definitions of judicial power, Dixon CJ and McTiernan J said[31]:

[45]

This passage, and the last sentence in particular, should not be read, however, as suggesting that the Family Court had a welfare jurisdiction that was at large. Earlier, the joint judgment recognised this when their Honours said that "there are limits on that jurisdiction"[34]. The above passage should not be read, therefore, as suggesting that the Family Court's welfare jurisdiction authorises orders that are divorced from the determination of "some immediate right, duty or liability"[35] of the parties to a controversy or that are not analogous to those exceptional orders traditionally made by courts exercising judicial power. Their Honours are hardly likely to have overlooked that there can be no conferral of federal jurisdiction unless there is a "matter" within the meaning of ss 75 and 76 of the Constitution.
It was common ground in Marion's Case that the Family Court had jurisdiction to authorise the sterilisation of a child[36]. As a result, this Court was not concerned to articulate definitively the jurisdiction of the Family Court in respect of the welfare of a child. However, the effect of s 77 of the Constitution is that, for federal courts, the jurisdiction must be defined with respect to a right, privilege, duty or liability. Ordinarily, this means that the law defining jurisdiction must identify the person or persons who have the benefit or burden of the right, privilege, duty or liability. In some cases, the law defining jurisdiction may grant a right or privilege without imposing any corresponding duty or liability on another person. The holding of the Court in Marion's Case is an example. Such cases are nevertheless rare and are recognised only for historical reasons.
Accordingly, the failure of s 67ZC, standing alone, to define the Family Court's jurisdiction with respect to a s 75 or s 76 matter is not itself decisive against the respondents' contention that the Family Court had jurisdiction in the present matter. Other provisions of the Act may supply the elements of a "matter". The ultimate question then is whether, read as a whole, the Act defines the jurisdiction of and thereby - for constitutional purposes - confers jurisdiction on the Family Court to determine the present dispute between the respondent children and the Minister. The question may be posed in two different ways:

[49]

Section 21 of the Act creates the Family Court of Australia and declares it to be a superior court of record. Sections 31 and 33 set out the original jurisdiction of the Family Court. Section 31(1)(a) confers jurisdiction on the Family Court with respect to "matters arising under this Act or under the repealed Act in respect of which matrimonial causes are instituted or continued under this Act". Section 31(1)(c) confers jurisdiction in respect of matters arising under a law of the Parliament of a Territory other than the Northern Territory. Section 31(1)(d) confers jurisdiction on the Family Court in relation to matters in respect of which proceedings may be instituted in that Court. Section 33 confers jurisdiction on the Court in respect of matters associated with matters in which the jurisdiction of the Court is invoked. Section 40(1) declares that "[t]he jurisdiction of the Family Court under this Act shall not be exercised except in accordance with Proclamations under this section."
Part V of the Act is concerned with applications relating to matrimonial causes. Despite the conferral of jurisdiction in respect of such matters by s 31, s 39 confers jurisdiction on the Family Court inter alia "with respect to matters arising under this Act in respect of which ... matrimonial causes are instituted under this Act [or] ... continued in accordance with section 9"[37]. Section 4 of the Act contains a definition of "matrimonial cause"; it does not extend to disputes concerning the welfare of children.
Part VI is concerned with applications for the dissolution and nullity of marriage. Unlike Pt V, Pt VI does not contain an express grant of jurisdiction.
Nothing in any of Pts I to VI of the Act, with the exception of s 31 in Pt IV, throws any light on the question of the Family Court's jurisdiction in this case.
As we have already indicated, Pt VII is concerned with children. Like Pt V, and despite the terms of s 31, Pt VII contains a number of conferrals of jurisdiction. None of them expressly indicates or inferentially suggests that the Family Court has jurisdiction to make orders against the Minister. On the contrary, the various Divisions and subdivisions of Pt VII show that the main object of the Part is to require parents to act in ways that will advance the best interests of their children. Indeed, s 60B(1) declares that the object of the Part is to:

[52]

It is appropriate to consider each Division in turn.
Division 1 of Pt VII is introductory. It contains s 60F, which extends, for the purpose of the Act, the meaning of "a child of a marriage". The term includes a reference to a child adopted since the marriage by the husband and wife, a child of the husband and wife born before the marriage and a child of the husband and wife who is born as a result of artificial conception procedures[38].
Division 2 is concerned with parental responsibility. It contains s 61B, which defines "parental responsibility" in relation to a child to mean "all the duties, powers, responsibilities and authority which, by law, parents have in relation to children."
Division 3 deals with the counselling of people in relation to matters affecting children. Its chief concern is with the duties and powers of the Family Court and its officers in respect of counselling those who are involved in proceedings under Pt VII.
Division 4 is concerned with parenting plans. Section 63B states that the parents of a child are encouraged to agree about matters concerning the child rather than seeking a court order and, in reaching an agreement, to regard the best interests of the child as the paramount consideration.
Division 5 addresses parenting orders. Section 64B(2) defines a parenting order as one that deals with the person or persons with whom a child is to live, the contact between a child and another person or persons, the maintenance of a child or any other aspect of parental responsibility for a child. Section 64B subdivides parenting orders into residence orders, contact orders, child maintenance orders[39] and specific issues orders depending upon the subject matter of the particular order.
Division 6 is concerned with parenting orders other than child maintenance orders. Section 65C permits either or both of the child's parents, the child, a grandparent of the child or any other person concerned with the care, welfare or development of the child to apply for a parenting order. Such orders include orders concerning residence, contact and taking and sending children from Australia. Sections 65M, 65N and 65P oblige persons not to act contrary to, or hinder or impair, such orders.
Division 7 is concerned with child maintenance orders. Section 66B(1) declares that the principal object of the Division "is to ensure that children receive a proper level of financial support from their parents." Section 66F states that either or both of the child's parents, the child, a grandparent of the child or any other person concerned with the care, welfare or development of the child may apply to a court for a child maintenance order.
Division 8 is concerned with other matters relating to children, including the liability of an unmarried father to contribute towards child bearing expenses, orders concerning the location and recovery of children and the reporting of alleged acts of child abuse. Section 67ZC - which is the key section in this case - is contained in this Division and, as we have said, gives the Family Court "jurisdiction" to make orders relating to the welfare of children. In deciding whether to make an order under that section, "a court must regard the best interests of the child as the paramount consideration."[40] Subdivision B of Div 10 of Pt VII prescribes rules for determining what is in a child's best interests.
Division 9 is concerned with the institution of proceedings for injunctions in relation to children. Division 10 also addresses separate representation of children in curial proceedings. Division 11 is concerned with the relationship between contact orders and family violence orders.
Thus, the object of Pt VII and the contents of Divs 1 to 11 read as a whole suggest that, except where expressly mentioned, Pt VII is concerned with proceedings between the parents of children and also with the obligations of parents to children.
Division 12 of Pt VII (ss 69A-69ZK) is headed "Proceedings and jurisdiction". Subdivision B of that Division regulates the institution of legal proceedings under Pt VII. Subdivision C confers jurisdiction on the Family Court, each State Family Court and the Supreme Court of the Northern Territory in relation to matters arising under Pt VII. Section 69H(1), which is in subdiv C, specifically confers jurisdiction "on the Family Court in relation to matters arising under this Part." Section 69M declares that the "jurisdiction conferred on or invested in a court by this Division is in addition to any jurisdiction conferred on or invested in the court apart from this Division." Subdivision D is concerned with presumptions of parentage. Subdivision E is concerned with evidence concerning the parentage of a child.
Subdivision F is concerned with the application of Pt VII to the States and Territories and is headed "Extension, application and additional operation of Part". The subdivision contains six sections, ss 69ZE-69ZK. Subject to the terms of the section and s 69ZF, s 69ZE extends the operation of Pt VII to New South Wales, Victoria, Queensland, South Australia and Tasmania[41]. Subject to the same provisions, s 69ZE also extends the operation of Pt VII to Western Australia if the Parliament of that State refers to the Parliament of the Commonwealth certain matters concerning children or if it adopts Pt VII[42]. Those matters are: (1) "the maintenance of children and the payment of expenses in relation to children or childbearing"; and (2) "parental responsibility for children". Western Australia has not made such a referral. Part VII extends to a State only if an Act of the Parliament of the State either refers to the Parliament of the Commonwealth those matters or "matters that include, or are included in, those matters" or adopts Pt VII[43]. Further, the Part extends to a State only in so far as it makes provision with respect to the matters that are referred to the Parliament of the Commonwealth or matters that are incidental to the execution of any power vested in the Commonwealth Parliament in relation to those matters[44]. South Australia has not referred the matter of the welfare of children to the Parliament of the Commonwealth.
Section 69ZG applies Pt VII to the Territories.
Section 69ZF, which empowers the Governor-General by proclamation to "declare that all the child welfare law provisions of this Part extend to a specified State"[45], has no application in the present case.
Section 69ZJ confers jurisdiction on courts where jurisdiction pursuant to Pt VII has been invested in or conferred on the court in matters between residents of different States with respect to the maintenance of children, the payment of expenses in relation to children or child bearing, or parental responsibility in relation to children.
Section 69ZH provides:

[65]

Section 67ZC is contained in subdiv E of Div 8. Thus, s 69ZH gives s 67ZC an "effect" as if the references to "children" and "child" in that section were "confined to a child of a marriage"[46] and the section made "provision with respect to the parental responsibility of the parties to a marriage for a child of the marriage"[47]. However, s 69ZH(1) declares: "Without prejudice to its effect apart from this section, this Part also has effect as provided by this section." The terms of s 69ZH(1) suggest, therefore, that the "jurisdiction" and powers conferred by s 67ZC are not necessarily restricted to those situations contemplated by sub‑ss (2) and (3) of s 69ZH. Hence, the jurisdiction and powers conferred by s 67ZC may have two operations: the restrictive operation given to them by those sub-sections and such wider operation as it is possible to deduce from provisions of Pt VII other than s 69ZH. The majority of the Full Court held that s 67ZC had the wider operation.
Nicholson CJ and O'Ryan J stated[48] that "the source of power for the court to exercise its jurisdiction over children of a marriage ... is to be found in subdiv C of Pt VII and particularly in ss 69H(1) and 69M." In our view, however, ss 69H(1) and 69M, even when read together, do not operate to confer jurisdiction on the Court in respect of "matters" for the purpose of s 77 of the Constitution. As we have indicated, s 69H(1) confers jurisdiction on the Family Court "in relation to matters arising under this Part." However, s 69H(1) is not a self-contained conferral of federal jurisdiction: the "matters" over which the Court has jurisdiction can be identified only by reference to other provisions of Pt VII. Thus, s 69H requires a search for a relevant "matter" arising under Pt VII. It no more determines the question of the Family Court's jurisdiction in respect of children than does the reference to "jurisdiction" in s 67ZC. Section 69M, to which the majority also referred as giving jurisdiction, does not take the position any further. It simply declares that the jurisdiction conferred or invested by Div 12 "is in addition to any jurisdiction conferred on or invested in the court apart from this Division."
The Minister contends that the source of the relevant jurisdiction of the Family Court in the present case is Div 12 and not Div 8 (s 67ZC) or Div 9 (s 68B) as the respondents contend. In our opinion, the Minister is correct in asserting that on their face neither Div 8 nor Div 9 confers any relevant jurisdiction in this case - relevant in the sense that they give jurisdiction with respect to a matter "mentioned" in s 76 of the Constitution. The Minister is also almost certainly right in contending that it is Div 12 that confers the relevant jurisdiction. This contention of the Minister does not sit well with the declaration in s 69ZH(1), however, if s 67ZC, for example, has "effect" independently of s 69ZH. Nor does it sit well with the statement in par 319 of the Explanatory Memorandum to the Family Law Reform Bill 1994 (Cth) which inserted s 67ZC into the Act. That paragraph provided[49]:

[80]

On 31 July 2002, two boys identified as A and M and who were then aged approximately 12 and 14 years, instituted a proceeding in the Family Court of Australia by their mother as their next friend. There were three female siblings, then aged approximately 11, nine and six years. The father was granted leave to intervene and sought orders respecting the five children. It has not been disputed that the children are children of the marriage of the father and the mother.
The children and their parents are unlawful non‑citizens within the meaning of s 14 of the Migration Act 1958 (Cth) ("the Migration Act"). At the time of the institution of the proceeding in the Family Court, the children and their mother were detained at an immigration "detention centre" at Woomera in South Australia which was established under the Migration Act; the father then was living in the general community. By the time of the appeal to the Full Court of the Family Court giving rise to the litigation in this Court, the mother and the children had been transferred to another detention centre in South Australia known as the Baxter Immigration Detention Facility ("Baxter") and the father also was detained at Baxter.
The claims for relief made in the application to the Family Court illuminated the scope of the controversy which constituted the matter in respect of which the Family Court was said to have the necessary federal jurisdiction; if the Family Court had jurisdiction to determine the controversy it would have power in the exercise of that jurisdiction to give the remedies sought[50].
Interim and final orders were sought in the application by A and M that the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") release them from the Woomera detention centre on the ground that, broadly speaking, their continued detention was harmful to their welfare. The orders sought were described by reference to s 68B and s 67ZC of the Family Law Act 1975 (Cth) ("the Family Law Act"). Both provisions appear in Pt VII (ss 60A‑70Q). Part VII, which is headed "Children", comprises 14 Divisions. It was introduced by s 31 of the Family Law Reform Act 1995 (Cth) ("the 1995 Act") and since has been amended. The structure of Pt VII was described in Northern Territory v GPAO[51] and U v U[52].
The father sought interim and final orders that the five children reside with him or, in the alternative, that orders be made protective of the children whilst they remained in detention. No particular provisions of Pt VII were identified in his application, but in argument in this Court counsel relied principally upon s 67ZC, which was said both to deal with subject-matter and to confer jurisdiction on the Family Court.
On application by the Minister, a judge of the Family Court (Dawe J) dismissed the applications by A and M and by the father. Her Honour did so on the ground that the Family Court did not have any jurisdiction to make any of the orders sought against the Minister.
Appeals to the Full Court of the Family Court succeeded[53]. On 19 June 2003, the Full Court (Nicholson CJ and O'Ryan J; Ellis J dissenting) set aside the orders made by Dawe J and ordered that the applications be remitted for rehearing. Thereafter, and following another successful Full Court appeal, the children were, by order made by the Full Court on 25 August 2003, released from immigration detention pending the final hearing of the applications.

[93]

The determination of the issues which arise on this appeal requires analysis of statute law. That analysis is not assisted by the use of general expressions such as "the welfare jurisdiction" or "the parens patriae jurisdiction" as an encouragement to subside from consideration of the statutory construction question affecting Ch III courts into the broad waters of the general law.
It should be added immediately that in the text of Pt VII itself the various senses of the term "jurisdiction" are not clearly marked. This appeal turns upon the conferral upon the Family Court of the federal jurisdiction for it to adjudicate the controversy with the Minister. However, as will appear, the term "jurisdiction" is used in some provisions of Pt VII more loosely, and to identify the nature of disputed rights and liabilities (eg "the welfare of children") which, by the exercise of legislative power under s 51 of the Constitution, may provide the subject for adjudication, rather than the conferral of federal jurisdiction by a law made in exercise of the legislative power conferred by s 77 of the Constitution.
The institution of the present proceedings invited two inquiries. The first was the source in federal law of the rights and liabilities presented for adjudication. The second was the identification of the federal law made under s 77 which conferred jurisdiction upon the Family Court. The distinction is explained in various authorities, including Hooper v Hooper[65], where the validity of the Matrimonial Causes Act 1945 (Cth) was upheld.
In its initial form, the Family Law Act was drawn in a fashion which obscured the distinction between these two steps, namely the identification of a "matter" and the law conferring jurisdiction with respect to it. At bottom, the issues on this appeal require consideration of the text and structure of what is now Pt VII to ascertain whether, as the Minister submits, it is in Div 12 (ss 69A‑69ZK), headed "Proceedings and jurisdiction", rather than in the earlier provisions of Div 8 (ss 67A‑67ZD), headed "Other matters relating to children", and Div 9 (ss 68A‑68C), headed "Injunctions", and containing respectively s 67ZC and s 68B, that the relevant (and limited) conferral of jurisdiction upon the Family Court is to be found.
It is desirable to approach consideration of the text and structure of what is now Pt VII by first referring to some earlier decisions of this Court about the Family Law Act. Those decisions illustrate how that Act, in its earlier forms, has been held to operate in identifying matters and in conferring jurisdiction with respect to them. From there it is convenient to go to the examination of a number of the provisions of Pt VII in order to reveal the place occupied by the particular provisions which are in issue in this appeal. That examination will reveal that the Minister's submission is correct. It is Div 12 which provides the relevant conferral of jurisdiction on the Family Court. The jurisdiction conferred is limited. Neither s 69ZE nor s 69ZH conferred jurisdiction to decide either of the applications which gave rise to this appeal. Section 69ZE confers jurisdiction on the Family Court in matters the subject of a reference by a State of power, and matters incidental to the execution of a power vested by the Constitution in the federal Parliament in relation to those matters. Neither of the applications which give rise to this appeal was such a matter, the reference by South Australia being limited to matters of maintenance, custody, guardianship and access. Section 69ZH confines the operation of s 67ZC to the parental responsibilities of the parties to a marriage for a child of the marriage.

[101]

Part VII, as then introduced in the 1987 Act, comprised 14 Divisions. Division 2 (ss 60E‑60H) was headed "Extension, application and additional operation of Part". Section 60E reflected the terms of the references of power by the States, but also provided (s 60E(3)) that "[t]his Part applies in and in relation to the Territories". Section 60G applied the terms of the references to actions in diversity jurisdiction between residents of different States. Section 60F invoked the legislative powers of the Parliament with respect both to marriage and to divorce and matrimonial causes (s 51(xxii)). In so doing, the Parliament took perhaps a cautious view of the extent of the marriage power, in particular by limiting the effect of other Divisions (including Div 4) so that they applied "only in so far as they make provision with respect to the rights and duties of the parties to the marriage in relation to the child" (s 60F(2)).
Division 4 (ss 63‑63D) was headed "Jurisdiction of Courts". It conferred federal jurisdiction on the Family Court (among other courts) in relation to "matters arising under this Part" (s 63(1)); that is to say, matters arising in the light of the limitations spelled out in Div 2. In Marion's Case, these limitations were of no great moment. This was because the parents who instituted the proceeding and their infant child all resided in the Northern Territory[75], and, as indicated, Pt VII applied there (s 60E(3)). It no doubt was for that reason that, in the judgments in this Court, attention focused upon s 63(1) in its operation, not with Div 2, but with the provisions of Div 5 (ss 63E‑66), headed "Custody and guardianship of children", and, in particular, s 64.
In general outline, the scheme of Pt VII as it now stands resembles that of Pt VII introduced by the 1987 Act. Subdivision F of Div 12 resembles the previous Div 2 and subdiv C of Div 12 resembles the previous Div 4. Section 67ZC, upon which much reliance was placed in this Court by the respondents, is found in one of the Divisions descending from the previous Div 5. That had included s 64, to which reference was made in Marion's Case.
The Court concluded in Marion's Case that what had been achieved "was a vesting in the Family Court of the substance of the parens patriae jurisdiction, of which one aspect is the wardship jurisdiction"[76]. That statement in the joint judgment of Mason CJ, Dawson, Toohey and Gaudron JJ was preceded by the passage[77]:

[154]

The Minister submits that there were two potential applications of Div 12 of Pt VII to the children in South Australia. The first was found in s 69ZE. That represents a continued exercise of the federal legislative power consequent upon the State references. Those references, as indicated in s 3(1) of the SA Act, which has been set out, were limited by referring the subject-matter only to the extent to which it was not otherwise within federal legislative power. That would include the marriage and divorce powers and the Territories powers which underpin, but may not be exhausted by, other particular provisions in Div 12.
In any event, the references were limited to matters of maintenance, custody, guardianship and access. In Marion's Case[100], Mason CJ, Dawson, Toohey and Gaudron JJ indicated that orders of that description were of a narrower genus than those relating to the welfare of a child.
The second potential application was in the combination of s 69ZH and s 67ZC. However, in its terms, s 69ZH confines the operation of s 67ZC to the parental responsibilities of the parties to a marriage for a child of the marriage. The result, the Minister submits, is that neither of these potential applications of Div 12 of Pt VII could be supported in the present litigation. That submission should be accepted. The same is to be said of reliance upon the injunction provision in s 68B in conjunction with s 69ZH.
In response, the respondents submit that s 67ZC and s 68B are to be given effect according to their terms. That effect is said to be, by reason of the use in the sections of the slippery term "jurisdiction", both to create subject-matter for adjudication and to provide curial authority to determine the relevant rights and obligations.
Particularly with respect to s 67ZC, it is submitted that if the phrase "relating to the welfare of children" be read down to identify children of a marriage, then the section is supported by the marriage power. That power is said to extend to the protection of children from any interference or risk of interference with their welfare, direct or indirect, and to support orders against third parties. Analogy is drawn with decisions such as In re X (A Minor)[101] given in the parens patriae jurisdiction of other courts.
Alternatively, it is submitted that s 67ZC is supported as an exercise of the power with respect to external affairs. Reliance is placed upon provisions of the Convention on the Rights of the Child, which entered into force for Australia on 16 January 1991[102]. In response, the Minister emphasises the statement in the joint judgment in the Industrial Relations Act Case[103] that, particularly in the implementation of treaty obligations, the external affairs power has a purposive aspect. The Minister refers to the legislative history in the Parliament of the Bill for what became the 1995 Act as indicative of the absence of any such legislative will.
Those references to legislative history in turn give rise to a further consideration. In Newcrest Mining (WA) Ltd v The Commonwealth[104], Brennan CJ observed:

[158]

It is unnecessary and would be inappropriate to embark upon further consideration of these various matters. This is because the submissions by the respondents fail at the threshold. The submission that s 67ZC and s 68B are to be given effect according to their terms should be rejected. Section 67ZC, which appears in Div 8, and s 68B, which appears in Div 9, must be read in the manner indicated earlier in these reasons, with the provisions of Div 12, in particular s 69ZH. It may be that s 69ZH does not represent an exhaustive exercise of the marriage power and that the marriage power may extend to authorise laws respecting the welfare of children of a marriage in the fashion urged by the respondents. However, given the complex adjudicative history of the exercises of the marriage power in the past, it is perhaps not surprising that some caution is manifest in the terms of s 69ZH. At all events, the terms of that provision are limiting and decisive.
The provisions of subdiv F of Div 12, including ss 69ZE, 69ZG, 69ZH and 69ZJ, control the application of the preceding provisions of Pt VII. They do not merely add something onto an operation which those earlier provisions have in their own right. They consist of a complete and exclusive statement of the application of the earlier provisions. That this is so follows from s 69A(e), which provides that subdiv F of Div 12 (not any earlier provision) deals with the places and people to which Pt VII extends and applies. It follows from the form of s 69ZE, and s 69ZG, neither of which, unlike a section which operates in supplementation of some provisions having independent application[106], is expressed to be "without prejudice to" the effect of those provisions. It follows from s 69ZH(1), which provides that Pt VII has effect as provided by s 69ZH without prejudice to its effect apart from "this section" - not "this subdivision"; if the latter word had been used, it would point against the construction being advanced, and use of the former word favours it. It follows from s 69ZH(4), which provides that certain miscellaneous provisions of Pt VII which are not those described in s 69ZH(2) have effect according to their tenor: for this would be unnecessary if the provisions had effect according to their tenor in any event, and implies that the provisions of Pt VII which are described in s 69ZH(2) do not have effect according to their tenor at all, but only according to the terms of s 69ZH(2) and (3). It follows from the fact that, if the provisions of Pt VII described in s 69ZH(2) did apply according to their tenor, s 69ZG and s 69ZH would have been unnecessary.
The respondents rely on the expression "extends" in s 69ZE and on the word "Extension" in the heading to subdiv F and in the heading to s 69ZE. This language does not imply that there was some independent operation of earlier provisions which is being enlarged; it means only that, if the conditions provided for in s 69ZE are satisfied, Pt VII extends, in the sense of applies, to particular States. This construction of Pt VII is consistent with and reflects the reasoning in Northern Territory v GPAO[107].
That conclusion makes it unnecessary to consider the further questions that would arise upon the construction advanced by the respondents respecting the intersection between the operation of the Family Law Act and the Migration Act. Nor is it appropriate here to embark upon a consideration of any remedy which might be available in a court of broader jurisdiction in respect of the wrongful or illegal detention of children[108] and others, and which was focused more sharply upon the legality of the detention itself than upon the adverse effects of the detention upon the welfare of the detainees[109].

[159]

The appeal to this Court should be allowed. The orders of the Full Court of the Family Court made on 19 June 2003 should be set aside and in place thereof it should be ordered that the appeal to the Full Court be dismissed. There should be no order for the costs of the appeal to this Court. It was a condition of the grant of the certificate under s 95(b) of the Family Law Act that the Minister pay the reasonable costs of the respondent infants and the respondent intervener of and incidental to the appeal to this Court, irrespective of the outcome of such appeal.
At the time of the grant of the certificate under s 95(b) of the Family Law Act, which founds the appeal in this Court, the Full Court had made no costs orders respecting the proceedings before Dawe J and the Full Court. This Court reserved its decision on the appeal on 30 September 2003. Thereafter, on 13 April 2004, the Full Court made a costs order and delivered supporting reasons, with reference to the special costs provisions in s 117 of the Family Law Act. The Full Court made a costs order against the Minister. Given the order of events just described, no question respecting that costs order has arisen in this Court.
KIRBY J. On the face of things, it appears doubtful that the Family Court of Australia, exercising jurisdiction under the Family Law Act 1975 (Cth) ("the FLA"), would have jurisdiction to decide the validity of the detention of alien children under the Migration Act 1958 (Cth) ("the MA") and the power to make orders directing the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") and federal officials, required under the MA to detain the children, to release them for reasons of their welfare.
This intuitive response to the central problem in this appeal is not shaken by demonstration of the fact that the children in question are children of a "marriage", a relationship attracting relevant constitutional powers[110] to the Federal Parliament upon the basis of which, in part, the FLA was enacted. On the contrary, the instinctive conclusion is reinforced by the knowledge that the "marriage" in question is uncontested; that it is the subject of no procedures for divorce nor any other matrimonial cause in the Family Court; and that, to this extent, the invocation of the jurisdiction of the Family Court seems contrived.
The MA establishes a highly detailed and complex scheme for the determination of the rights and obligations of constitutional aliens[111] (called "non-citizens" in the MA) present in Australia. It makes no relevant distinction between those who are adults and those who are children. It would therefore appear odd for the Family Court, established by the FLA[112], to have the jurisdiction and power to make orders intruding into the implementation and administration of the MA.
The oddity springs essentially from the functions, jurisdiction and powers of the Family Court. Although a superior court of record[113], it is a court of defined, specialised jurisdiction. One would not, therefore, normally expect it to concern itself with the validity or duration of detention, or other acts done, under the MA. Normally, one would expect any such challenges to be initiated in the original jurisdiction of this Court[114] or in the Federal Court of Australia[115].
The suggestion of a general, even comprehensive[116], child welfare jurisdiction in the Family Court following the passage of the Family Law Reform Act 1995 (Cth) ("the FLRA") does not allay the foregoing doubts. Notwithstanding the FLRA, it would not normally be expected that the Family Court would enjoy jurisdiction, or exercise powers, in relation to a teenage child committed to serve a term of imprisonment in a civil custodial institution, on the ground that orders on its part were necessary and appropriate for that child's welfare. On the face of things, any such orders would appear to involve the Family Court intruding beyond its proper functions, such functions being understood having regard to the context in which its powers are granted to it. If the Family Court could not direct orders to the lawful custodian of a child prisoner serving a criminal sentence, how could it enjoy the power to make orders directed to the Minister or the officers of the Minister's department with respect to the detention of a child under the MA? How could the Family Court do so requiring conduct on the part of the Minister and federal officers apparently different from the obligations expressly imposed on them by the MA?
These are the questions that lie at the threshold of the determination of the many legal issues that were argued in this appeal[117]. Intuition can be a useful check where the law appears to have taken a wrong turning[118]. In the courts, it is commonly based on long years of experience in the law, even if the exact reasoning is not at first consciously identified. On the other hand, intuition can sometimes be misleading or wrong[119]. Where the rights of vulnerable persons under valid legislation are in question, it is often necessary to keep judicial intuition in check "for sometimes it will be based unconsciously on the very attitudes that the law is designed to correct and redress"[120].
In the end, in cases of contest such as this, there is no substitute for legal analysis. The analysis must be addressed to the detailed provisions of the law in question, not to generalities which may be displaced, or reversed, by new legislation or by new insights about the old law.

[160]

The facts and litigation: The history of these proceedings is set out in other reasons[121]. It is there explained how the primary judge in the Family Court (Dawe J) originally dismissed the application for relief directed to the lawfulness of the detention of the respondent children, including relief claimed in the form of orders obliging their release from immigration detention.
The primary judge concluded that the welfare jurisdiction of the Family Court, on the basis of which the relief was claimed, had to be "exercised within the usual field of family law". That jurisdiction did not "extend to a power to override the exercise of any statutory power [belonging to the Minister under the MA] merely because that exercise of power may impact upon the best interests of children"[122].
Against this rejection of relief, on the stated jurisdictional grounds, an appeal was taken to the Full Court of the Family Court. That Court ("the first Full Court") divided[123]. As the findings of the first Full Court are fully explained elsewhere, I will not repeat them[124]. That Court allowed the appeal. Following the first Full Court's orders the proceedings resumed at first instance in the Family Court. Once again they reached a Full Court[125] ("the second Full Court"). It is unnecessary to detail these developments. Suffice it to say that, consistently with the reasoning of the majority of the first Full Court, the second Full Court ordered the release from immigration detention of the respondent children. It did so under conditions of reporting expressed in its orders. This Court was informed that, pursuant to those orders, the children were released. The central issue in the Minister's appeal to this Court is whether the Family Court had the jurisdiction and power to determine in this way the applications brought on behalf of the children.
The certificate under FLA s 95(b): Following the orders of the first Full Court, the Minister applied to that Court for a certificate pursuant to s 95(b) of the FLA, in order to permit the Minister to appeal to this Court without further application. In the exercise of the jurisdiction conferred by the Parliament, the first Full Court granted such a certificate[126]. That certificate thereby invoked the appellate jurisdiction of this Court, to be exercised in accordance with the Constitution[127].
The reasons of Gummow, Hayne and Heydon JJ criticise the provision of the certificate and the reasons given by the first Full Court for granting it. The latter are described as exhibiting a "presumption"[128] on the part of an intermediate appellate court. I disassociate myself from both of these criticisms.
No party to this appeal submitted that the provision in s 95(b) of the FLA for a certificate to be granted by the Full Court of the Family Court was beyond the constitutional powers of the Parliament. The language of s 73 of the Constitution states that the appellate jurisdiction of this Court is subject to "such exceptions and … regulations as the Parliament prescribes"[129]. It cannot be said that the prescription by the Parliament, in terms of s 95(b) of the FLA, was ill-considered. On the contrary, the broad scope of the power to "prescribe" has been upheld by this Court in a case where that power was used to enlarge this Court's control over its own business[130].
Just as the Parliament can enlarge the Court's power by prescription it can, in a particular case, diminish it. It can do so as long as what it prescribes amounts to an "exception" or "regulation" of the constitutional facility to hear and determine appeals as envisaged by the Constitution - in this case an appeal to this Court from an "other federal court". There may well be good reasons why, in the context of family law, the Parliament afforded the power of certification to the Full Court of the Family Court. In some legal circles, family law is not regarded as having the importance of, say, commercial law. If the Parliament, acting under the Constitution, decides otherwise, it is not for this Court to call its decision "anomalous"[131]. To do so risks the accusation of a presumption on our part[132].
Nor were the reasons given by the judges of the Full Court irrelevant to the exercise of the power granted to them in the form of s 95(b) of the FLA. If the power is valid (as was not challenged) the duty of the judges was to consider all matters relevant to the exercise of that power[133]. They were not excused from doing so because some might wish that the power did not exist or prefer that this Court should enjoy exclusive control of its own business, which by s 95(b) of the FLA it does not. It would have been an unlawful abdication of a jurisdiction conferred on the Family Court by the Parliament for the Full Court to adopt such a posture. Respect for judicial hierarchy necessarily adjusts to the provisions of valid federal law imposing lawful judicial powers.
As Callinan J remarks, the questions of law raised in the application for a certificate were undoubtedly important for the jurisdiction of the Family Court[134]. Potentially, the first Full Court's decision had implications for hundreds of other children held in immigration detention. The earliest possible hearing of an appeal by this Court was therefore a proper and responsible matter to be considered by the Full Court. The obligations of a Minister were involved. Arguably, the repeatedly expressed will of the Parliament concerning the detention of unlawful non-citizens had been breached. Certainly, a clash between two federal laws (the FLA and the MA) was presented for resolution. Status and liberty were at stake. The grant of the certificate would save the time and cost otherwise inevitably incurred in requiring the Minister to proceed by a separate application to this Court for special leave to appeal. So much was no more than common sense. To ignore the consideration of additional delay would have been to ignore a relevant matter.
I do not accept that events have shown that the assumption of the Full Court that time would be saved by granting a certificate to the Minister was false. So long as the certification provision remains part of the law, it is quite wrong to criticise the Full Court for referring to a consideration plainly relevant to its exercise. If this Court desires the repeal of the certification facility in s 95(b) of the FLA, there are ways to express that desire that do not involve criticising judges for doing no more than their duty in response to an application before them pursuant to a valid federal law.
The legislation and issues: The relevant provisions of the FLA[135] and the MA[136] respectively are set out, or described, in the reasons of the other members of this Court. So are the questions raised by the Full Court's certificate, so far as it concerns the first issue "of law and of public interest"[137] identified by that Court[138].
However, three other issues were isolated by the first Full Court in the certificate that it issued[139]. The second issue concerned whether the provisions of Pt VII of the FLA were supported by s 51(xxix) of the Constitution as implementing the United Nations Convention on the Rights of the Child ("the UNCROC")[140] or have only a more limited operation[141]. The third issue concerned "[w]hether the detention of a child who is an 'unlawful non-citizen' within the meaning of the Migration Act is beyond the authority conferred by that Act when that detention extends over a lengthy period or its duration is indefinite". The fourth and connected issue was "whether the detention of a child is 'indefinite' if the child lacks capacity to make a request under s 198(1) of that Act".
The intersection of the MA and the FLA: I state the additional questions contained in the Full Court's certificate because, in my opinion, the resolution of this appeal is to be found in a reflection on the answers to the third and fourth questions. It is those questions that present the issues essential for the intersection of the FLA and the MA in these proceedings. If, as I believe, they must be resolved in favour of the Minister, it is unnecessary to decide the ambit, scope and even validity of the provisions for the welfare jurisdiction of the Family Court under the FLA. Such jurisdiction, and the powers that accompany it in respect of the welfare of children, can be assumed to exist and to be valid for the purposes of the appeal. However, if, as I would conclude, those powers do not permit the Family Court to exercise its welfare jurisdiction and powers in the manner attempted in relation to children in immigration detention under the MA, elaboration of the welfare jurisdiction and powers under the FLA is irrelevant for immediate purposes. It can be left to another case on another day.
I prefer to chart the metes and bounds of the jurisdiction and powers of the Family Court in welfare cases in a more normal case where the welfare of children is invoked without the complications presented in this case by the detention of the respondent children under the MA. As will be shown, that detention is part of a deliberate policy of the Australian Parliament, applicable without differentiation between alien adults and children. So long as it is constitutionally valid, it must be given effect by Australian courts. This is so, despite general provisions for child welfare in other legislation, including the FLA. It is so even if it brings Australia into contravention of its obligations under international law.

[167]

The critical point upon which the members of the first Full Court divided, therefore, concerned the conclusion reached by the majority that the continued detention of the respondent children was unlawful. Upon this issue, the dissenting judge (Ellis J) did not agree with the majority (Nicholson CJ and O'Ryan J)[146]. This was so although, in the resolution of most of the other issues before the Full Court, Ellis J expressed concurrence with the majority's conclusions[147].
It is therefore sensible, and prudent, to start with these points of difference (or at least so many as are essential to reaching a dispositive order). Doing so reduces unnecessary obiter dicta. It also conforms with this Court's usual practice to put challenges to constitutional validity of legislation to one side, where possible, and to start legal analysis with arguments addressed to questions of statutory construction[148].
The relevant point of construction concerns whether the MA permits the "detention" of the respondent children for the period proved in the evidence in this case. This was not a case where the evidence showed that a fundamental postulate of the statutory purpose of detention in default of the grant of a visa (namely removal or deportation from Australia)[149] could not be fulfilled. A factual conclusion had been reached that the parents were nationals of Pakistan. Although the parents disputed that finding of fact, it was one not open to correction in these proceedings. Upon that basis, the respondent children, like their parents, were not stateless persons. Thus, the situation that arose in Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri[150] was not presented in this case.
In Al Masri, the Full Court of the Federal Court concluded that s 196 of the MA should be read, so far as its language permitted, to ensure conformity with Australia's treaty obligations[151]. The first Full Court in the present case unanimously agreed with that approach[152]. So would I. Whatever controversies may exist in respect of the interpretation of the Constitution and whatever difficulties may sometimes arise in the expression of the common law, the interpretation of federal statutes in Australia, to conform wherever possible to accepted obligations of international law, has long been a principle upheld by this Court[153]. The first Full Court was correct to seek the meaning of the MA in conformity with this approach.
An arguable breach of international obligations: The respondents invoked identified requirements of international law, binding on Australia. They did so not only to support their contention that the welfare jurisdiction conferred on the Family Court under the FLA was designed to give effect to international obligations[154]; but also to support the submission that the MA, construed in the light of those obligations, did not sustain the detention of the respondent children proved in the evidence. It is with the latter submission that I am immediately concerned.
The first Full Court referred, in particular, to Art 37 of the UNCROC, drawing attention to pars (b), (c) and (d) of that article[155]. The article provides:

[172]

Parallel to the foregoing provisions of the UNCROC, and to others mentioned by the first Full Court[156], are provisions expressed in somewhat more general terms by the International Covenant on Civil and Political Rights[157] ("the ICCPR"). That treaty overlaps the UNCROC to some extent[158]. Australia is a party to each of these international instruments. In the case of the ICCPR, Australia is also a party to the First Optional Protocol[159].
Communication to the UNHRC: Pursuant to the First Optional Protocol to the ICCPR, the parents of the respondent children lodged a communication with the United Nations Human Rights Committee ("the UNHRC") set up by Pt IV of the ICCPR[160]. Their communication related, amongst other things, to the rights of the children in accordance with international law. They complained, relevantly, that Australia was in breach of the requirements of the ICCPR with respect to the children up to the time that they were released from immigration detention by the order of the second Full Court, the validity of which order the Minister challenges in these proceedings.
This Court has held, correctly in my view, that the signature by Australia to the ICCPR and to the First Optional Protocol, inevitably brings to bear on the exposition of Australian law the influence of the universal principles of international law stated in the ICCPR[161]. In ascertaining the meaning of the ICCPR, and thereby elucidating the extent of that "influence", it is permissible, and appropriate, to pay regard to the views of the UNHRC[162]. Such views do not constitute legally binding rulings for the purposes of international law[163]. However, they are available to municipal courts, such as this, as the opinions of independent experts in international law, to assist in the understanding of the requirements of that law for whatever weight the municipal legal system accords to it. In Australia, that is the weight of persuasive influence. No more; but no less.
After hearing the arguments of both sides, the UNHRC rejected objections raised by Australia to the admissibility of the communication[164]. Relevant to the position of the respondent children, the UNHRC noted that they had "remained in immigration detention for two years and eight months until their release". It went on[165]:

[176]

If it is the case, as decided by the UNHRC, that articles of the ICCPR, namely Art 9.1 (prohibiting subjection to arbitrary detention), Art 9.4 (requiring access to a review with power to order release if the detention is not lawful) and Art 24 (measures of protection for every child), were breached by Australia in the detention of the respondent children, it appears even more arguable (as the majority in the first Full Court concluded) that the requirements of the UNCROC were breached[170].
The provisions of the UNCROC were considered by the first Full Court in the context of its examination of the validity, under the external affairs power, of the provisions of the FLA affording the Family Court its general welfare jurisdiction and powers. However, the same analysis is available in deciding the construction argument, considered at the close of the majority's reasons in the first Full Court[171]. Upon the basis of the majority's view that the respondent children were being held indefinitely in immigration detention the first Full Court concluded that this was contrary to Art 37 of the UNCROC, thereby suggesting that the continued detention of the children was not the obligation imposed by the MA, properly construed, when read with the FLA[172]. It was on that footing that the majority in the first Full Court concluded that s 196(3) of the MA, purporting to prevent "the release, even by a court, of an unlawful non-citizen from detention (otherwise than for removal or deportation) unless the non-citizen has been granted a visa" did not apply to the ordering of the release of children from detention[173]. Only if the Family Court had the power to order release, in the specific case of children, would the disconformity between Australian federal law and Australia's obligations under the UNCROC (specifically Art 37) be avoided.
Effectively, this conclusion of the first Full Court meant a reading down of the general language of ss 189 and 196 of the MA, so as to avoid infraction otherwise of the obligations Australia had freely assumed under international law. For its part, the UNHRC acknowledged that it had no authority to reach conclusions about the alleged breaches of the UNCROC, its mandate being confined to the ICCPR[174]. The UNHRC thus confined its attention to the alleged breaches of the latter instrument. Nevertheless, given the stronger and more specific language of the UNCROC, relevant to the detention of children such as the respondent children, it was strongly arguable that the mandatory obligation to detain such children for very long periods whilst the cases of their parents were winding their way through the primary decision-making processes, the Federal Court and this Court, constituted a breach of Australia's duties under international law.
In reaching that conclusion as a first step in its reasoning, the first Full Court did not, therefore, err. Indeed, it was not a novel conclusion, as I shall show. It was the starting point for the consideration of the element of the suggested unlawfulness of the respondent children's detention. It was upon this basis that the majority judges in the first Full Court concluded that they were permitted to override the provisions of the MA. These provisions otherwise appeared to apply to the children to oblige their continued immigration detention and to forbid any court ordering their release without a relevant visa.
The relevance of any such breach: Acting on the hypothesis sufficiently established by the foregoing analysis, that there was a breach of obligations imposed on Australia by international law, the critical question is reached. Does any such breach of international law sustain a reading down of the language of the detention provisions of the MA? In other words, within the authorities, would such a reading of the MA, viewed in the context of the welfare provisions of the FLA, amount to a construction "so far as the language of the legislation permits"? Or would it involve an impermissible defiance by the courts of the clear requirements of valid Australian federal law?

[177]

The language of the sections: Two indications demonstrate, in my view beyond doubt, that the purpose of the Australian Parliament in enacting laws for the mandatory detention of aliens arriving in Australia as "unlawful non-citizens" was to include children, such as the respondent children.
The first indication appears in the text of the MA. There is no hint in the provision requiring the "detention of unlawful non-citizens" of any differentiation between the treatment of adults and children[175]. The definition of "non-citizen" in the MA[176] is simply "a person who is not an Australian citizen". Self-evidently, a child is a "person". If the child is not an Australian citizen, it is therefore a "non-citizen" as defined by the MA. If the child is an alien within the Australian Constitution, who has arrived in this country as a "non-citizen", it is clearly competent for the Parliament under the Constitution to enact a law with respect to the detention of such a child[177]. So much is not in doubt or contest. Generally, children at birth derive their nationality status from their parents. Unless the child is stateless on arrival in Australia, it ordinarily qualifies as a "non-citizen", taking its own citizenship in accordance with the law of the nationality of its parents. It is not an Australian citizen merely because of its arrival at, or presence in, Australia. It is a national of a foreign country. Such was the case with the respondent children.
The obligation to detain unlawful non-citizens, known or reasonably suspected to be in the "migration zone", is imposed by the MA on specified officers[178]. There is no hint in the obligation, so expressed, of any differentiated treatment in respect of unlawful non-citizens who are children. In practical terms, where children, because of age and dependency, arrive in Australia with their parents illegally, the adults and children are taken into custody together. Although the MA does contain some provisions specific to the status of children[179], particularly in relation to bridging visas[180], such express differentiation appears neither in s 189 nor in s 196. On the contrary, the generality of the language, the stringency of its provisions and the apparent policy which the sections on their face are designed to implement, contradict any suggestion that the Parliament intended to provide only for the detention - even extended detention - of adults and not of children. In terms of the MA, mandatory detention was required of all "persons" arriving in Australia as "unlawful non-citizens"[181]. The provisions therefore include, and apply to, children as well as adults.
The language of the MA is intractable. It cannot be "read down" to avoid any problems created by obligations derived from international law. The effect of ss 189 and 196 is that no decision under the MA is required as a precondition to the existence of the power and duty of "officers" to detain an unlawful non-citizen, adult or child. Detention depends solely upon the status of that person as an unlawful non-citizen. The duration of detention is governed by the provisions of the Act[182]. An alien child, as much as an alien adult, falls within the designated status. The provisions of the MA are susceptible to no other construction.
Parliamentary reports on such detention: That this is so is put beyond any residual doubt by reference to a series of public reports, tabled in the Australian Parliament, which address the suggested defects of the system of mandatory immigration detention followed in Australia, and specifically as such detention affects children.
Three reports in particular can be mentioned. They indicate that the Australian Parliament has had its attention directed expressly to the issue of universal mandatory detention of unlawful non-citizens and specifically to the case of children. Notwithstanding these reports, many subsequent amendments to the Act and an intervening change of government, no alteration of the legislation requiring mandatory detention has been adopted differentiating between adult and children non-citizens.
The first such report, Asylum, Border Control and Detention, responded to the terms of reference of the Parliamentary Committee on Migration[183]. The report contains an extensive review of the rationale accepted by the majority of the Committee for the detention of unlawful border arrivals in Australia[184]. The report notes the submission of the Department of Immigration and Ethnic Affairs that detention was an instrument to achieve administrative ends and was not, as such, punitive[185]. That department conceded, however, that "incidental to [the] universal visa system is deterrence"[186]. That "deterrence" arose from the detention of unauthorised border arrivals. The department acknowledged concerns, raised by the Attorney-General's Department, "regarding long term detention and detention of children"[187]. The latter department is recorded as observing that "the circumstances of particular cases may lead to breaches of international law"[188]. In this regard, particular concern was expressed about "the lack of discretion to release persons subject to long term detention, and the detention of children"[189].
The Attorney-General's Department's submission, summarised in the report, drew special attention to the requirements of the UNCROC in respect of the detention of children with, or separately from, their parents. It was the opinion of that department that "the power to release children from detention, if that was in the best interests of the child, would ensure that any criticism relating to the Convention on the Rights of the Child could be overcome"[190].
The Parliamentary Committee recommended consideration of the inclusion of a "prescribed class" of detainees, eligible for release from detention on a bridging visa where this was appropriate having regard to considerations such as "special need based on age" and "Australia's international obligations"[191]. A dissenting report went even further and questioned the requirement of mandatory detention, pointing to alternative overseas procedures. That report drew special attention to the "particularly worrying" effects of prolonged detention of children[192]. The dissenting report proposed that the MA be amended "so as to end the system of mandatory detention of unlawful non-citizens … save for the limited purposes of preliminary checks on identity, security and health"[193].
Although the foregoing Committee report was tabled in the Australian Parliament, no change to the system of mandatory detention provided in the Act has been introduced. Specifically, no amendments have been enacted providing particular rights for the release from detention of "unlawful non-citizens" who are children.
In May 1998, the Australian Human Rights and Equal Opportunity Commission ("the HREOC") presented its report to the Attorney-General, Those who've come across the seas[194]. This report also recommended modification of the MA. Specifically, the HREOC concluded that "[t]he detention of asylum seekers for any other purpose [than to verify identity, to determine the elements of the claim, to deal with cases of destroyed documents or to protect national security or public order] is contrary to the principles of international protection and should not be permitted under Australian law"[195]. The report recommended that "[d]etention is especially undesirable for vulnerable people such as single women, children, unaccompanied minors". It called particular attention to the UNCROC, Art 37(b)[196].
Although the HREOC report was also tabled in the Parliament, no relevant amendments followed its recommendations, whether generally or specifically concerning children.
In September 2000, the Parliamentary Committee on Migration delivered a further report, Not the Hilton: Immigration Detention Centres: Inspection Report[197]. The Committee's terms of reference were confined on this occasion to inspection of the conditions of Australia's immigration detention facilities. They did not address larger policy issues. The report made no recommendations for change in the mandatory detention system. None have been enacted.
From the foregoing it must be inferred that the Australian Parliament was fully aware of the operation of mandatory detention of unlawful non-citizens arriving in Australia; of its particular application to the children of unlawful non-citizens; of the special problems that prolonged detention of children in such detention centres occasions; and of the concerns expressed by departmental officers and individual committee members about breach of the requirements of international law, specifically of the UNCROC, Art 37(b). In effect, the position of the Parliament has not altered since the view expressed a decade ago in the first of the above reports[198]:

[179]

Mandatory detention is confirmed: In the light of the foregoing history, it is impossible to draw any inference other than that the Australian Parliament intends a system of universal mandatory detention of unlawful non-citizen arrivals to remain in force, including in respect of children. In the face of the evidence, appearing as it does in the public record supplied to this Court, readily available to all, it is impossible to construe the MA otherwise than in accordance with its terms. It follows that it is impossible to accept that a significant alteration of the MA was introduced, by an undetected, unannounced, unnoticed side-wind, such as the enactment of the FLRA or the amendment of the FLA.
Mandatory detention of unlawful non-citizens who are children is the will of the Parliament of Australia. It is expressed in clear terms in ss 189 and 196 of the MA. Those sections are constitutionally valid. In the face of such clear provisions, the requirements of international law (assuming it to be as the respondents assert and as the UNHRC, in part, has found) cannot be given effect by a court such as this[199]. This Court can note and call attention to the issue. However, it cannot invoke international law to override clear and valid provisions of Australian national law. The Court owes its duty to the Constitution under which it is established. Pursuant to the Constitution, all laws made by the Parliament of the Commonwealth are "binding on the courts, judges, and people of every State and of every part of the Commonwealth"[200]. Those laws must be obeyed and enforced, whenever they are valid and their obligations are clear and applicable. They cannot be ignored or overridden, least of all by this Court.
I do not regard it as arguable that the detention of the respondent children under the MA was permanent or indefinite. True, it lasted a long time before their release by order of the second Full Court. However, under the MA, the period of detention had a clear terminus. This (putting it broadly) is the voluntary election of the children (through their parents) to leave Australia or the completion of the legal proceedings brought by the parents on the children's behalf, with necessary consequences for the status of the children.
The case of the respondent children is to be distinguished from other recent proceedings. It cannot be said that the MA is inapplicable to them because they are stateless. Nor is the MA inapplicable because the conditions of detention have been shown, arguably, to fall outside the statutory conditions required by the MA. In this appeal, the attack was directed to the power of detention, as such, and its duration. With the dissenting judge in the first Full Court, in my opinion "it cannot be said that there is no real likelihood or prospect in the reasonably foreseeable future of the children being removed and thus released from detention"[201].

[180]

So far as Australian law was concerned, the respondent children were therefore lawfully detained under the MA. In such circumstances, by the language of that Act, they had to be detained until one of the provisions in s 196(1) was fulfilled, ie until removal or deportation from Australia or the grant of a visa. Even if a point might ultimately be reached where the loss of liberty of an "unlawful non-citizen" in proved conditions falls outside the statutory expression "immigration detention" (or would invite constitutional invalidity as amounting to unauthorised punishment), that point had not been reached in the case of the respondent children at the time of their release.
If there was protracted duration of the detention of the respondent children, as there clearly was, it was solely because of the operation of the MA upon the challenges mounted seriatim before the successive Australian decision-makers by the children's parents severally and then together. The confinement of the children was not only lawful under the MA. It was obligatory in terms of the provisions of that Act. And, as I have shown, those provisions represent the deliberate and repeatedly reaffirmed will of the Australian Parliament, acting in this case within its constitutional powers.
It follows that it is impossible to interpret the general powers and jurisdiction enjoyed by the Family Court under the FLA as authorising intrusion into the fulfilment of the clear and specific obligations of detention imposed on the Minister and federal officers by the MA. In the face of the specificity, particularity and universality of the application of the MA, requiring detention of persons such as the respondent children, any general powers and jurisdiction enjoyed by the Family Court under the FLA can have no operation to require or permit their release from detention[202]. Given the express command of the Federal Parliament to designated officers to detain the children, it was not permissible for the Family Court, under generally expressed powers, to give the Minister and such officers orders involving contradictory or inconsistent instructions[203].
Whatever powers are enjoyed by the Family Court under its welfare jurisdiction, they cannot be invoked to oblige contravention of the constitutionally valid legislative scheme of mandatory detention contained in the MA. It is unnecessary in this appeal to consider whether such powers would extend, in some exceptional circumstances, to require the alteration of the conditions of the respondent children whilst in immigration detention. Given that the children are not presently within such detention, that issue is theoretical in this case. On the face of things, however, the general responsibility for such detention is reposed in the Minister and the officers named in the MA. It is not placed in the hands of the judges of the Family Court.
I prefer to rest my conclusion on the foregoing approach to the intersection of the FLA and the MA rather than the approaches adopted by the other members of this Court reaching the same result.
In light of my conclusion, it is unnecessary in this appeal for me to decide whether the purported exclusion of the powers of a court to release an unlawful non-citizen, in terms of s 196(3) of the MA, is constitutionally invalid as an over-broad provision[204]. Because, as a matter of construction, the MA excludes the possibility of orders by the Family Court under the FLA in this case, an order for release of the respondent children from detention would travel beyond the jurisdiction and powers of the Family Court. It is for that reason, not because of the terms of s 196(3) of the MA, that I would set aside the orders of the first Full Court. On all other matters argued in the appeal, I would reserve my opinion.
The orders proposed in the reasons of Gummow, Hayne and Heydon JJ should be made.
CALLINAN J. Collectively, the family of whom the respondents are members, have, since their arrival in this country, litigated in many of its tribunals and courts in attempts to obtain lawful residential status in it.
On 22 October 1999, the father arrived in Australia unlawfully and was taken into immigration detention. He claimed that he was a refugee from the Taliban regime in Afghanistan. He was granted a temporary visa (sub-class 785) on 3 August 2000 upon the basis of this claim. Four days later he applied for a protection visa.
On 1 January 2001, the mother and the infant first respondents ("the children") arrived in Australia unlawfully, and were taken into immigration detention. Seven weeks later the mother and the children applied for protection visas, upon the basis that they too were refugees from the Taliban regime in Afghanistan.
On 22 May 2001, the delegate of the Minister refused the application for protection visas by the mother and the children, and on 26 July 2001 the Refugee Review Tribunal affirmed the delegate's decision not to grant visas to the mother and the children because they were not nationals of Afghanistan but of Pakistan.
Two of the children on 27 June 2002 escaped from the Woomera Immigration Reception Processing Centre. They were found in Melbourne and returned to immigration detention on 19 July 2002.
The present proceeding was commenced in the Family Court at Adelaide[205]. The relief there sought was as follows:

[238]

In my opinion the appellant's first submission is correct, that the jurisdiction conferred by s 67ZC of the Family Act does not, as a matter of statutory construction, extend to a jurisdiction to order the children to be released from detention. The only jurisdiction which the relevant States, including South Australia, sought to transfer and transferred to the Family Court for exercise under the Family Act pursuant to s 69ZE(3) and (4) was relevantly, the parental responsibility for, and the parental maintenance of children. Clearly, the orders sought by the respondents in this case are not orders with respect to any of these matters.
The reference by the States in the terms that it was made is consistent with these propositions: the Commonwealth has power to make laws with respect to marriage under s 51(xxi) and s 51(xxii) of the Constitution; power in relation to ex-nuptial children resides in the States; and the whole thrust of the Family Act so far as children are concerned is to deal with children of marriages and the obligations of their parents to them. That last appears (inter alia) from those provisions of the Family Act in Pt VII to which I have referred, including s 69ZH, in which the notion of, and obligations attached to "parenting", that is to say, parents within, or who have been in a marriage, are set out. It was with "parenting" and its obligations not otherwise the subject of the Family Act that the States were concerned, and some powers with respect thereto that they sought to, and did in terms transfer to federal courts, the Family Court, and, by s 69H(4), the Federal Magistrates Court.
Sections 69ZE to 69ZH are central to, and govern the application of the provisions of Pt VII. It is not only unlikely that a State would seek to confer a power upon the Commonwealth that the latter already possessed, but it also would be constitutionally unable to do so. What the States have done is simply to confer a jurisdiction with respect to parental obligations owed to children, not already possessed by the Commonwealth. Furthermore, the power or jurisdiction conferred is neither in terms nor by implication a general welfare jurisdiction over children. What I have said is, I believe, in conformity with the recent approach of the Court generally to a reference of a State power to be exercised in conjunction with a constitutionally confined Commonwealth power[216].
It is also right, as the appellant and the Attorney-General of the Commonwealth submit, that the acceptance of their arguments so far is sufficient to dispose of this appeal in their favour. Nonetheless, in due deference to the extensive argument on the other issues determined by the Full Court of the Family Court, I propose to say something about them.
The majority of the Full Court purported also to exercise a parens patriae jurisdiction. That it was entitled to do so is met by the conclusion that I have already reached. But there is also this, the States did not purport to confer it. If it may be exercised by the Family Court, it can only owe its existence therefore to a parens patriae power residing in the Commonwealth. The Family Act cannot in my opinion be read as intended to confer it except to the extent that its provisions can constitutionally, and do replicate it. The Commonwealth Parliament's power to legislate is governed by ss 51(xxi) and 51(xxii) of the Constitution. The combined effect, and the influence of each upon the meaning of the other, and in consequence, the limitations upon Commonwealth power with respect to children, were the subject of some considerable discussion in Russell v Russell[217] in which Barwick CJ said[218]:

[248]

With all due respect, and acknowledging that constitutionally conferred powers may overlap, I am unable to accept that the Constitution is not to be read according to one of the most elementary canons of construction of all relating to instruments of any kind: as a whole. Nor can I accept a proposition that the language of each part of it is incapable of having a bearing, including in some circumstances, a restrictive or limiting effect upon other parts. This Court has held that implications can be drawn from the relationships of various sections of the Constitution with one another and its structure[225]. That approach is consistent only with its being read as a whole and careful regard being had to context. This means that ss 51(xxi) and 51(xxii) not only may, but should be read together, and in consequence, having regard to their proximity, read as intended to deal with separate and quite distinct, that is to say not overlapping topics. And despite that sometimes, probably very rarely, constitutional provisions and powers may overlap, the better view is that the drafters neither engaged in a process of intentional duplication nor accidentally achieved it.
Earlier, their Honours in P v P[226] had explained the reasoning of the Court in Secretary, Department of Health and Community Services v JWB and SMB (Marion's Case)[227]. They were at some pains to say that the issue there, of sterilisation of a child, arose out of the custody or guardianship of a child of a marriage. It is unnecessary, for the purposes of this case to revisit Marion's Case. On no view are the statements made there likely to throw any light on the entirely different situation here.
No matter how extensive the powers conferred by ss 51(xxi) and 51(xxii) may be, the powers of the Family Court with respect to children are powers in relation to, or arising out of married (either currently or previously) parentage of children, or of unmarried parentage of them on a reference by the States. Those powers do not comprehend a general discretionary welfare power over any or all children, whether of a marriage or not, exercisable in such a way as to override any or all other powers over children, such as to detain them in immigration detention, or rehabilitative, reformative, or penal institutions. The Family Court may no more do this than it could exercise a jurisdiction in tort or contract in order to advance the welfare of a child.
The respondents' proposition that s 51(xxi) of the Constitution provides a power on the part of the Commonwealth to legislate, and that by the Family Act it has legislated pursuant to it, to confer a power upon the Family Court to make all such orders as it thinks appropriate and may make under Pt VII of the Family Act, in cases in which the obligations and rights of parents are in no way in issue, so long as children of a marriage are concerned, should be rejected.
The appellant's and the Attorney-General of the Commonwealth's third response was that whatever the extent of the jurisdiction of the Family Court, it had no power to contradict or interfere with the statutory directions for the detention of unlawful non-citizens whether or not they were children pursuant to ss 189 and 196 of the Migration Act. The point is certainly arguable. Before saying why that is so I should set out the two sections of the Migration Act:

[262]

The Migration Act, as appears inter alia, from the unmistakable language of those sections, is a very specific enactment apparently designed to deal with all relevant matters in relation to the entry, departure and residence of unlawful non-citizens which these respondents undoubtedly are. No relevant exceptions are made by the Migration Act in relation to children as to the jurisdiction that courts, whether State or federal, might or might not otherwise have in relation to them. The appellant and the Attorney-General of the Commonwealth accept that detention under the Migration Act is subject to the general law and in that sense to the supervision of the courts. Officials administering the Migration Act may, for example, be liable criminally or in tort. The Migration Act, however, confers upon the officials the duty to decide where a detainee resides and the conditions of residence. These are administrative decisions. They are likely to be affected by considerations of policy to the extent that discretions have to be exercised, and with respect to priorities of allocation of public resources.
Some of the orders sought in the Family Court could well require the responsible Minister to exercise statutory powers under the Migration Act in a particular way, for example, to approve a particular place for the purposes of par (b)(v) of the definition of "immigration detention" in s 5(1) of the Migration Act. Section 474 of the Migration Act would appear to stand as an obstacle to the making of orders of the kind sought[228].
The respondents sought to rely on the United Nations Convention on the Rights of the Child. For present purposes I will proceed upon the basis that the welfare of children in this country can truly be an external affair. In enacting Pt VII of the Family Act the Parliament chose to rely on particular heads of power. Express references or indications of those heads of power will usually provide fairly sure pointers to the boundaries within which the Parliament was intending to legislate and has legislated. Here, those indicators are to be found in the long title to the Family Act and the reference to parentage and marriage in Pt VII of the Act. The Convention cannot expand the intended and clearly identified scope of Pt VII of the Family Act. Australia's treaty obligations do not form part of Australian domestic law unless incorporated by statute[229]. Whatever relevance the Convention may have as a declared instrument under the Human Rights and Equal Opportunity Commission Act 1986 (Cth), it has not actually been incorporated into the domestic law relating to the detention of unlawful non‑citizens which is the subject of express provision under the Migration Act. Nor does Pt VII purport to incorporate the Convention into domestic law as an exercise of any legislative power with respect to external affairs, assuming that the relevant matters could be external affairs. To do so the demonstration of a clear connexion between the law and the treaty would be necessary: the law must truly have the "purpose or object" of implementing the treaty[230]. Part VII manifests no such purpose, even though it may not be inconsistent with the Convention.
The language of Pt VII and the parliamentary history of the Family Law Reform Act 1995 (Cth) (which inserted Pt VII in its current form) make it clear that Parliament was not intending in enacting that Part to implement the Convention for these reasons. The changes introduced by the 1995 amendments were directed at the reinforcement of parental responsibility for children. Section 67ZC reproduced the earlier welfare jurisdiction, arguably in clearer terms but with no suggestion of any resort to the Convention which is nowhere mentioned in the Family Act. Section 60B is a direct indication of reliance upon the marriage power.
In explaining the amendments directed at parental responsibility, the Explanatory Memorandum to the Bill for the 1995 amendments noted that the object of Pt VII was "based [not on the reception of the Convention into the Family Act, but] on principles which are consistent with" the Convention[231]. The second reading speech noted Australia's ratification of the Convention and said that the objects clause in Pt VII gave "recognition" to the rights contained in that instrument "by specifying a number of such rights that should be observed"[232] (emphasis added). It is possible therefore that some Articles of the Convention may have influenced the drafting of sections of Pt VII. The Parliament did not however intend to implement the Convention by, in some way enlarging or creating an all-embracing welfare jurisdiction. The strong possibility in any event is that the Convention may be aspirational only. None of its provisions on any view require that the rights of children be protected or advanced by a conferral of jurisdiction upon the Family Court. Furthermore, the substantive Articles of the Convention set out rights which States are to ensure that children and parents should enjoy, but leave the selection of "appropriate legislative, administrative, and other measures"[233] to State parties.
Something need only briefly be said about the fourth matter, the Full Court's reliance on the reasoning of the Full Court of the Federal Court in Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri[234]. The applicant there failed to obtain a protection visa. He asked to be removed from Australia under s 198(1) of the Migration Act but (at the time of the decision at first instance at least) that removal could not be effected. The Full Federal Court held that the primary judge had been correct to regard Mr Al Masri's continued detention as falling outside the authority of s 196 of the Migration Act because, as a matter of construction, s 196 did not authorise the detention of a non‑citizen for the purpose of removing him or her from Australia unless there was a real likelihood of removal in the reasonably foreseeable future. For the reasons that I have given it is unnecessary to explore the correctness of that proposition in this appeal.
The judges in the majority in the Full Court also embarked upon a long discussion of authority and academic writing about the "capacity" of children to make decisions[235]. The significance of "capacity" was that, in their Honours' view, "if the children or any of them are unable to bring their detention to an end [by making a request under s 198(1)], therefore, like Mr Al Masri, their continued detention is unlawful"[236]. They expressed the view, despite the absence of any evidence about capacity, that the children were unlawfully detained[237].
The Full Court heard no argument that, as with Mr Al Masri, the children here had failed in their visa application and had exhausted all avenues of appeal and that it was therefore the duty of every "officer" under s 198(6) of the Migration Act to remove them from Australia as soon as "reasonably practicable". If the reasoning in Al Masri was correct, the lawfulness of their detention depended on the prospects of that removal being achieved in the reasonably foreseeable future. Whether they had any capacity to request their own removal under s 198(1) would then have no relevance. It is unnecessary to reach any conclusion on this last matter.

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