P v P

P v P - [1994] HCA 20 - HCA 1994 case summary — Zoe

[87]

On the other hand, that ordinary approach to construction does not extend to the case where the State or Territory prohibition under criminal sanction is not imposed solely as part of the ordinary criminal law, but is imposed as an integral part of a statutory scheme conferring upon a local judicial or administrative body jurisdiction or powers which overlap or compete with the jurisdiction conferred by the Commonwealth law. Nor is it applicable to a case where the State or Territory prohibition is imposed as part of a general regulatory scheme which operates within the very area which the jurisdiction validly conferred by the Commonwealth law was intended to control. In such cases, there is no presumption that it was the intent of the Parliament that the jurisdiction conferred by the Commonwealth law should be overridden by, or subjected to, the prohibitions and requirements of the overlapping or competing State or Territory scheme. If, in such a case, the terms and operation of the Commonwealth law disclose a legislative intent to cover the relevant field, s. 109 of the Constitution will apply to render invalid the State or Territory law to the extent that it intrudes within the area validly occupied by the Commonwealth law. If the terms and operation of the Commonwealth law disclose no such legislative intent, the existence and extent of inconsistency between the Commonwealth and the State or Territory laws will depend upon the terms and operation of each. Commonly, when that is so, the State or Territory law will be inconsistent with the Commonwealth law and invalid pursuant to s. 109 of the Constitution to, but only to, the extent that it would "alter, impair or detract from" [22] the Commonwealth law's conferral of jurisdiction by directly or indirectly precluding, overriding or rendering ineffective an actual exercise of that jurisdiction [23] . The practical effect of that pro tanto invalidity of the State or Territory law is that orders made in the exercise of the Commonwealth jurisdiction will prevail over the provisions of the State or Territory law or orders made or acts done in the exercise of power or authority which the State or Territory law purportedly confers.

[90]

It is clear from Marion's Case that, putting to one side the effect of any applicable State or Territory law, the welfare jurisdiction of the Family Court extends to authorizing or prohibiting medical or dental treatment of a child of a marriage both "in cases where parents have no power to consent [to such treatment] as well as cases in which they have the power" [24] . Indeed, that jurisdiction in relation to medical treatment of a child lies at, or close to, the heart of a welfare jurisdiction which is applicable to that child. The general welfare jurisdiction of the Family Court in respect of children of a marriage was conferred upon it by the Family Law Amendment Act 1983 Cth [25] . At the time, there was no New South Wales legislative scheme dealing with medical and dental treatment of incapable persons of the kind introduced by Pt 5 of the Guardianship Act in 1987. The Supreme Court of New South Wales had, however, long been vested with a wide parens patriae or guardianship jurisdiction. Clearly enough, it was not the intention of the Parliament, in conferring general welfare jurisdiction upon the Family Court in respect of children of a marriage, to cover the field and thereby deprive the State Supreme Court of any parens patriae or guardianship jurisdiction in respect of such children. Equally clearly, however, it was not the intention of the Parliament to subordinate the jurisdiction conferred by it on the Family Court, being part of the judicial power of the Commonwealth, to that which was conferred by State law upon the State Supreme Court. The intent of the Parliament [26] , confirmed by the subsequent cross-vesting legislation of 1987 [27] , was that both jurisdictions should exist concurrently. In the case of a conflict between orders made by the Family Court in the exercise of the jurisdiction conferred by the Family Law Act and orders made by the Supreme Court of New South Wales in the exercise of its jurisdiction, the orders made by the Family Court would necessarily prevail. The State law, whether statutory or inherited, which conferred the relevant jurisdiction upon the Supreme Court would, to the extent that it purportedly gave legal efficacy to an order which was inconsistent with an order of the Family Court, be rendered invalid by s. 109 of the Constitution for the reason that it was "to that extent" inconsistent with the provisions of the Family Law Act giving legal efficacy to the order made by the Family Court [28] .

[92]

The medical welfare regime introduced by Pt 5 of the Guardianship Act would, if completely valid, effectively exclude the jurisdiction of any court other than the State Supreme Court with respect to medical welfare matters relating to incapable persons over the age of sixteen years. As a practical matter, the effect of that State scheme is, if the Family Court is bound to observe its provisions in the exercise of its welfare jurisdiction, to remove the medical welfare component from that jurisdiction in so far as it relates to incapable New South Wales children of a marriage who are aged sixteen years or more. Putting to one side the insignificant exclusions from the definition of medical or dental treatment in s. 33(1) of the Guardianship Act and cases of urgent treatment, the Family Court could not, in New South Wales, authorize any medical or dental treatment of such a child in the exercise of its own welfare jurisdiction unless the "person responsible" or "guardian" (in the case of non-special treatment) or the Board consented to the treatment or unless the treatment was authorized by an order of the Supreme Court of New South Wales. That situation would result from the general prohibition contained in s. 35(1) of the Guardianship Act and the omission of any reference to orders made by the Family Court in the provisions of the State scheme providing for escape from that general prohibition. Indeed, if the prohibition contained in Pt 5 were applicable to preclude medical treatment authorized by the Family Court in the exercise of its general welfare jurisdiction, an extraordinary situation would exist. The Family Court's own medical welfare jurisdiction in respect of such children would have been effectively overridden and displaced by a medical welfare scheme established by a State law except to the extent that another State law, the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW), conferred upon it part of the jurisdiction of the State Supreme Court which the State scheme had expressly recognized and largely confirmed.

[157]

The origin of the wardship jurisdiction is the duty of the Crown to protect its subjects and particularly children who are the generations of the future. It is exercised by the courts on behalf of the Crown: see in In re X. (A Minor) (Wardship: Jurisdiction) [2] . The machinery for its exercise is an application to make the child a ward of court. Thereafter, the court is entitled and bound in appropriate cases to make decisions in the interests of the child which override the rights of its parents. Furthermore, the court is entitled, and bound in appropriate cases, to make orders affecting third parties which the parents could not themselves have made. Where a child is made a ward of court, the court itself assumes responsibility for the child's welfare, albeit that responsibility may be delegated in most matters to a custodian. There is no definitional limit to the scope of the wardship jurisdiction [3] but that jurisdiction does not empower the court to make an order in respect of a subject within the power of another repository. Thus, in A. v Liverpool City Council [4] , Lord Roskill said: I am of the clear opinion that, while the prerogative jurisdiction of the court in wardship cases remains, the exercise of that jurisdiction has been and must continue to be treated as circumscribed by the existence of the far-ranging statutory code which entrusts the care and control of deprived children to local authorities. It follows that the undoubted wardship jurisdiction must not be exercised so as to interfere with the day-to-day administration by local authorities of that statutory control. And, in In re W. [5] , Lord Brightman said: Although the prerogative jurisdiction of the High Court in wardship cases remains, nevertheless the exercise of that jurisdiction has been and must continue to be treated as circumscribed by the existence of the statutory code. Therefore, where the court perceives that the action sought of it is within the sphere of discretion of the local authority, there is generally no case for the existence of a wardship order. It is not the function of the High Court to supersede the statutory code, or to control the exercise by the local authority of discretions committed by Parliament to that body, or to supervise the exercise of the statutory powers of the local authority, except within the limits of judicial review. 1. In re R. (A Minor) (Wardship: Consent to Treatment), [1992] Fam. 11, at p. 25, per Lord Donaldson of Lymington M.R. 2. [1986] 2 S.C.R. 388; (1986) 31 D.L.R. (4th) 1. 3. [1988] A.C. 199, at p. 203. 4. (1992) 175 C.L.R., at p. 258. 5. [1986] 2 S.C.R., at p. 407; (1986) 31 D.L.R. (4th), at p. 14. 6. [1990] Fam. 39, at p. 46. 7. [1975] Fam. 47, at p. 52, per Latey J. 8. ibid., at pp. 50, 57, 60. 9. [1982] A.C. 363, at p. 377. 10. [1985] A.C. 791, at p. 807. See also In re Mohamed Arif (An Infant), [1968] Ch. 643 at p. 662; In re J.S. (A Minor), [1990] Fam. 182; and In re R. (Wardship: Criminal Proceedings), [1991] Fam. 56, at p. 66.

[170]

Because it has been thought that an award made pursuant to the Conciliation and Arbitration Act 1904 Cth, as amended, ("the Act") is not a law of the Commonwealth within the meaning of s. 109, inconsistency between an award and a State law must be reduced to inconsistency between the State law and the provision in the Act authorizing the making of the award so as to constitute it an exhaustive and exclusive regulation of the relevant subject matter (T.A. Robinson & Sons Pty Ltd v Haylor [14] ). In this respect s. 65 of the Act (s. 30 of the Act of 1904) is of paramount importance for it is the expression of the statutory intention that the arbitrator's exercise of power is to operate to the exclusion of any State law. Section 65 of the Act provided: Where a State law, or an order, award, decision or determination of a State Industrial Authority, is inconsistent with, or deals with a matter dealt with in, an award, the latter prevails and the former, to the extent of the inconsistency or in relation to the matter dealt with, is invalid. Then, in Dao v Australian Postal Commission [15] , Mason C.J., Wilson, Deane, Dawson and Toohey JJ., after reference to a number of cases relating to the operation of s. 109 said: Illustrative though these cases are of the operation of s. 109 of the Constitution in a situation where it is said that a State law is inconsistent with the provisions of an award made or agreement registered under the Conciliation and Arbitration Act, it must be remembered that in those circumstances the question of inconsistency can arise only because of the provisions of s. 65 of that Act. The cases therefore are to be understood in the way explained by the Court in T.A. Robinson & Sons Pty Ltd v Haylor and discussed again in the Metal Trades Case to which we have referred [16] . These cases deny that the exercise of a power by its statutory repository is a law of the Commonwealth which can engage the operation of s. 109 of the Constitution. Therein lies the analogy with the present case. No order made under Pt VII is a law of the Commonwealth. But that is where the analogy ends. 1. (1983) 152 C.L.R. 632, at pp. 648-649. 2. (1957) 97 C.L.R. 177, at p. 182. 3. (1987) 162 C.L.R. 317, at p. 337. 4. (1983) 152 C.L.R., at pp. 641-642, 646, 648-652.

[175]

In our federation, the Commonwealth has some legislative power, concurrently with the States, with respect to the custody of infants. At the same time the States possess and exercise wide powers to legislate for the welfare of children, including the manner of their upbringing. From this distribution of legislative powers collisions between State and Federal laws may result, but the occasion for them will be much reduced if custody is recognized for what it is: the right of the guardian to make and carry out such choices concerning a child's upbringing as, in the case of any particular child, the current state of the general law, whether State or Federal, permits. State laws which only operate to restrict the choices open to guardians regarding children's upbringing, being laws which apply generally to all members of the community or to all children in the community, can then be seen to provide no occasion for collision. There will then, for example, be no question of conflict between State educational or criminal laws and a federal law under which custody is given to a particular parent: State laws which prevent that parent from keeping his child at home, untaught, or from being sent to a reformatory, will then not be seen to conflict with the parent's federally conferred custody. I respectfully agree. State laws governing education or criminal punishment which apply to all members of the community cannot be excluded by a purported law supported solely by the marriage power. The marriage relationship and what arises from the marriage relationship exist in the legal context of State laws of general application. The legislative power of the Commonwealth under s. 51(xxi) of the Constitution does not extend to the exclusion of laws of general application in which the marriage relationship and what arises from the marriage relationship exist. Part 5 of the Guardianship Act is a law of general application governing a subject matter that does not arise out of the marriage relationship; it affects children of marriages and other children indifferently. 1. Vitzdamm-Jones v Vitzdamm-Jones (1981), 148 C.L.R. 383, at p. 414; Fountain v Alexander (1982), 150 C.L.R. 615, at pp. 625-626, 631-632, 646-647; V. v v (1985), 156 C.L.R. 228, at pp. 232-233. 2. In the Marriage of Cormick (1984), 156 C.L.R. 170, at pp. 175-176; Reg. v Cook; Ex parte C. (1985), 156 C.L.R. 249, at p. 257; Re F.; Ex parte F. (1986), 161 C.L.R. 376, at pp. 399-400. 3. Reg. v Lambert; Ex parte Plummer (1980), 146 C.L.R. 447, at pp. 456-457; Dougherty v Dougherty (1987), 163 C.L.R. 278, at pp. 288, 293. 4. (1980) 146 C.L.R., at p. 461.

At a glance

Court

Decision date

Before

Source

Judgment (226 paragraphs)

Parties

Legislation Cited (5)

Cases Cited (1)