R v Humby; Ex parte Rooney

My earlier analysis of the effect of s. 5 (3) and (4) disposes also of the two other contentions urged in support of ground 1 (b) of the order nisi. The section is not concerned with any purported exercise of judicial power; its only connexion with that subject matter is the wholly innocent one of using the outcome of the exercise of judicial power, the resultant decree or order and its effect, as descriptive of the effect which it gives to the non-judicial proceedings, the purported decrees, with which it is concerned. Likewise there is no question of seeking to intrude into the field of the constitution of the Supreme Courts of the States; their constitution is in no way affected, instead the acts of officers of those Courts, who have been held not to be constituent members of the Court, have had a particular effect assigned to them.

In my view par. 1 (b) discloses no grounds for the making of the orders sought by the applicant.

Paragraph 2 of the order nisi states two grounds of attack upon the special magistrate's jurisdiction. It reads

2. His Honour does not have jurisdiction to entertain the said complaint because either:

(a) the subject maintenance order, without authority under the provisions of the said Matrimonial Causes Act, seeks to create an obligation upon the Children's Welfare and Public Relief Board, at Adelaide to be a trustee under the direction of a federal authority, or

(b) the subject complaint seeks to enforce an order, made under federal power, to compel an authority which exercises the power of the Crown in right of the State of South Australia, namely the Children's Welfare and Public Relief Board at Adelaide to carry out the trusts created by the purported order.

The order, non compliance with which is alleged in the complaint here in question, provided that all payments of maintenance thereunder should be made to the Children's Welfare and Public Relief Board at Adelaide for the benefit of the defendant, the former wife of the present applicant. That Board was constituted under Pt II of the Maintenance Act, 1926 SA and what is, for these purposes, its successor, the Department of Community Welfare, is a South Australian department of State. It is said that if s. 87 (1) (f) of the Matrimonial Causes Act applies to these entities there is involved an attempted imposition by the Commonwealth Parliament of an onerous duty upon an instrumentality of a State, something for which there is no constitutional sanction. Does, then, the sub-section apply to these entities?

As a matter of construction "public authority" in s. 87 (1) (f) does, I think, aptly describe both the original Board and its successor, the Department of Community Welfare. That each is a public authority in the ordinary sense of that term is not, I think, disputed; what is said, however, is that s. 87 (1) (f) should be interpreted as referring only to Commonwealth public authorities and not to public authorities of a State. It was said by counsel for the applicant that the matter was essentially one of first impression; my first and remaining impression is that "public authority" in s. 87 (1) (f) includes public authorities of a State. The ordinary meaning of the term in itself justifies no limitation to Commonwealth instrumentalities. The context of s. 87 (1) (f), the terms of s. 105 of the Act and the whole history of the role which the various organs of the several States have played and still play in the field of maintenance and custody in Australia is strongly opposed to such a construction. The terms of s. 21 of the Acts Interpretation Act 1901-1966 Cth, even were it to be found applicable to the phrase "public authority", is expressed to be subject to any contrary intention. I accordingly conclude that each of the Board and the Department is a "public authority" within s. 87 (1) (f).

That being so, the constitutional objection is said to arise because by par. (f) of s. 87 (1) the Commonwealth Parliament has authorized the imposition by courts exercising federal jurisdiction of obligations upon instrumentalities of the State.

No doubt once a public authority undertakes the role of recipient of maintenance payments under an order made pursuant to s. 87 (1) (f), it is under some duty to apply that money "for the benefit of a party to the marriage", although it may well be that that duty is not readily enforceable. However it appears to me to be an error to read par. (f) as attempting to impose, either directly of its own force or indirectly through the medium of orders of courts made under the power it confers, any obligation whatever upon the public authorities to which it refers.

The paragraph is, I think, no more concerned to impose such an obligation than it is to impose one upon any member of the public at large who happens to be named without his consent as a trustee in an order of a Court made under that paragraph. Section 87 (1) is certainly concerned with the authorization of orders which impose obligations but it is upon the parties to a matrimonial cause that those obligations may be imposed and not third parties. The terms of par. (f) are, in my view, enabling in the sense that they empower a Court to name, in its order, a particular public authority as the recipient to which payments ordered to be made under Pt VIII of the Matrimonial Causes Act are to be paid; it is no doubt expedient expressly to confer such a power, just as it is to confer the alternative power to order payment to be made "to a trustee to be appointed". But these grants of power do not carry with them any implied power to compel a public authority to act as the recipient of such payments or to compel an individual to accept appointment as trustee.

It follows that the constitutional point said to arise under ground 2 of the order nisi does not in fact, in my view, arise and it accordingly calls for no further consideration.

The matter of statutory interpretation raised by par. 1 (a) of the grounds stated in the order nisi was not fully argued before us; the question involved in par. 1 (c) was left unargued, it apparently involves matters of fact. It is appropriate that these two matters should now go back to the Supreme Court of South Australia for determination. The order nisi should, in my view, otherwise be discharged.

In Kotsis v. Kotsis [1] and Knight v. Knight [2] this Court held that the jurisdiction to hear and determine matrimonial causes invested in the Supreme Courts of the States by s. 23 (2) of the Matrimonial Causes Act 1959-1966 Cth could not be exercised by an officer of a Supreme Court of a State who was not a constituent member of the Court. In the first of the two cases it was held that a Deputy Registrar of the Supreme Court of New South Wales had no jurisdiction to hear an application for the payment of interim costs in a matrimonial cause. In the second case it was held that the Master of the Supreme Court of South Australia had no jurisdiction to hear an application for maintenance pending the hearing of a suit for dissolution of marriage.

1. (1970) 122 C.L.R. 69. 2. (1971) 122 C.L.R. 114.

The effect of the decisions was that a decree or order made by officers who were not members of a Supreme Court was invalid. In order to remedy this situation the Commonwealth Parliament enacted the Matrimonial Causes Act 1971, s. 5 (3) and (4) of which gave effect to a purported decree made by an officer of the Supreme Court of a State.

In terms, these provisions applied to a purported decree made by the Master of the Supreme Court of South Australia on 30th March 1962 in a proceeding under the Matrimonial Causes Act in which the respondent William Keating Rooney was the plaintiff. By the decree the respondent was ordered to make payments to the applicant for the maintenance of the two children of the marriage and it was ordered that the payments of maintenance should be made "to the Children's Welfare and Public Relief Board at Adelaide on behalf of the" applicant.

On 9th November 1972 an officer of the Department of Community Welfare (S.A.) laid a complaint against Rooney under s. 169 of the Community Welfare Act, 1972 SA alleging that he had failed to comply with the payments of maintenance provided for by the order of 30th March 1962. An order nisi for prohibition and, in the alternative, for certiorari was granted. The grounds taken included the ground that the Master's order of 30th March 1962 was invalid, the Master not being a constituent member of the Supreme Court, and that the order was not validated by s. 5 (4) of the Matrimonial Causes Act 1971. On the return of the order nisi the Full Court of the Supreme Court of South Australia considered that a question as to the limits inter se of the constitutional powers of the Commonwealth and the States had arisen and declined to proceed further with the matter.

The correctness of this conclusion was challenged by counsel for Rooney when the matter came before this Court. We indicated that we were of the opinion that an inter se question had arisen and that the matter was properly before us. This conclusion was inevitable once it appeared that there was an attack on the validity of s. 5 (3) and (4) of the 1971 Act on the ground that it was ultra vires the power conferred by s. 51 (xxii.) and inimical to the provisions of Ch. III of the Constitution and a further attack on the validity of s. 87 (1) (f) of the Matrimonial Causes Act 1959 on the ground that the Commonwealth Parliament could not validly impose an obligation on a public authority of the State to accept payments for the benefit of a child of the marriage.

The principal submission was directed to the 1971 Act. The submission was based partly on the provisions of s. 51 (xxii.) and partly on restrictions arising from Ch. III of the Constitution. It is convenient to begin with s. 51 (xxii.) because it was argued that s. 5 (3) exceeded the legislative power with respect to "divorce and matrimonial causes".

The legislative power with respect to divorce is not confined to authorizing a dissolution of the matrimonial relationship by means of a judicial determination in a judicial proceeding. The old procedure of dissolving a marriage by private Act of Parliament is a clear demonstration that the concept of divorce, as traditionally understood, is not limited to a termination of the matrimonial relationship, with consequential provision for the rights and obligations of the parties to the marriage, by means of a judicial determination in a judicial proceeding. It is for Parliament in the exercise of the power to select the means by which the marriage is to be dissolved and the means by which consequential provision is to be made respecting the rights and obligations of the parties. Subject only to the limitations to be discovered in Ch. III, Parliament may provide that a designated tribunal or officer may dissolve a marriage and define the consequential rights and obligations of the parties, or give an invalid decree or order made by an officer of the Supreme Court the same effect it would have had, had it been made by the Court or a judge thereof. In my view s. 5 of the 1971 Act is not ultra vires the legislative power with respect to "divorce and matrimonial causes".

Next, it was argued that s. 5 (3) and (4) validated decrees made by officers who were not constituent members of the State Supreme Courts and, to that extent, did not comply with s. 77 (iii) of the Constitution which enables Parliament to invest federal jurisdiction in State courts, but not otherwise. It was submitted that the judicial power of the Commonwealth cannot be reposed, either prospectively or retrospectively, in an officer who is not a constituent member of a State court.

But s. 5, as it seems to me, does not so provide. Section 5 (3) says that the rights, liabilities, obligations and status of persons affected "are, by force of this Act, declared to be, and always to have been, the same as if" the purported decree or order had been made by the Supreme Court or a judge of that Court (as the case may be). It is the sub-section itself which defines the rights of the parties and it does so by reference to what their rights would have been had the decree or order been made, not by an officer, but by the Court. Sub-section (4) then gives to a purported decree the same effect. Sub-section (4) gives the decree an operation which it would not have had otherwise. In that sense it may be said that the decree is "validated"; it has a valid operation whereas before it had none. But the sub-section does not attempt to validate the decree as a judicial determination. It lacked that character when it was pronounced and it does not acquire that character merely because the statute attributes to it the effect it would have had, had it been a judicial determination.

There are cases in which it has been held that to authorize a Registrar to make a curial order involves him in the exercise of judicial power. That is because the nature of the order which he is empowered to make tends to show that his function is judicial in character (see Reg. v. Davison [1] ). In Bond v. George A. Bond & Co. Ltd. [2] , Rich and Dixon JJ., referring to s. 24 (2) of the Bankruptcy Act 1924-1929 which provided that the orders of a Registrar should be as valid and effectual, and might be enforced, as if they were orders of a court, said that there was much to be said for the view that the section was ultra vires as "an attempt to authorize the Registrar to exercise powers which belong to the Court and to attach to his acts and orders the same efficacy and the same consequences as the law gives to judicial acts and orders". There, again, the statute empowered a Registrar to make certain orders, subject to the directions of the court, and s. 24 (2) was thought to have significance in that it tended to show that the functions committed to a Registrar involved the exercise of judicial power.

1. (1954) 90 C.L.R. 353. 2. (1930) 44 C.L.R. 11, at p. 20.

But "the exercise of this power does not begin until some tribunal which has power to give a binding and authoritative decision is called upon to take action" (Huddart, Parker & Co. Pty. Ltd. v. Moorehead, per Griffith C.J. [3] ). The Matrimonial Causes Act before its amendment by the 1971 Act made no attempt to confer on a Master or officer of a Supreme Court of a State power to make such a decision. Nor, so it seems to me, does the Act of 1971 seek to confer such authority retrospectively. Section 5 recognizes that the purported decree is of no force and effect; sub-s. (3) then proceeds to declare the rights of the parties and sub-s. (4) gives to the decree the effect it would have had, had it been a judicial order, not for the purpose of making it a judicial determination, but so as to bring the rights declared by sub-s. (3) within the scheme and provisions of the Matrimonial Causes Act.

It was then argued that s. 5 (3) and (4) constitute a usurpation by the Parliament of the judicial power of the Commonwealth which is vested by Ch. III in the federal Judicature. "Usurpation of the judicial power" is, as the judgment of the Judicial Committee in Liyanage v. The Queen [1] , makes plain, a concept which is not susceptible of precise and comprehensive definition. In the context of the Commonwealth Constitution, it must signify some infringement of the provisions which Ch. III makes respecting the exercise of the federal judicial power. What that infringement is in the instant case, the argument did not condescend to make clear.

It is plain enough that the circumstance that a statute affects rights in issue in pending litigation has not been thought to involve any invasion of the judicial power. In Nelungaloo Pty. Ltd. v. The Commonwealth [2] , the validity of the Wheat Industry Stabilization Act (No. 2) of 1946 was upheld, notwithstanding that it validated an order for the acquisition of wheat the validity of which was a matter in issue in proceedings pending at the time when the statute was enacted. In that case the statute affected antecedent rights in issue in the litigation. Here the rights declared or created by the statute, although in issue in pending proceedings, were not rights antecedently existing; they are of a kind which ordinarily comes into existence by virtue of a judicial determination in a matrimonial cause. In my view there is not enough in these circumstances to support the conclusion that there has been a usurpation of judicial power. Chapter III contains no prohibition, express or implied, that rights in issue in legal proceedings shall not be the subject of legislative declaration or action.

1. (1948) 75 C.L.R. 495, esp. at pp. 503-504 and 579-580.

Support for the conclusion that the legislation was invalid was sought to be derived from Liyanage v. The Queen and from the observation there made [3] : "If such Acts as these were valid the judicial power could be wholly absorbed by the legislature and taken out of the hands of the judges." Suffice it to say that Liyanage v. The Queen [4] was a very different case. The legislation in question was of an unusual character; it constituted a marked interference with the judicial process and circumscribed the judicial function and the discretions incidental to it.

1. [1967] 1 A.C., at p. 291. 2. [1967] 1 A.C. 259.

Here by legislative action the rights of parties in issue in proceedings which resulted in invalid determinations were declared. The rights so declared in form and in substance were the same as those declared by the invalid determinations. But the legislation does not involve an interference with the judicial process of the kind which took place in Liyanage v. The Queen [4] (see Kariapper v. Wijesinha [5] ).

With respect to s. 87 of the Matrimonial Causes Act I have had some doubt as to whether the order which is attacked was made in seeking to exercise the power conferred by s. 87 (1) (f) or that conferred by s. 87 (1) (g). I am disposed to think that the order falls more precisely within s. 87 (1) (f), but in the present context it matters not which of the two powers is in question because the arguments addressed to the Court have equal application to each source of power. I agree with what Stephen J. has said as to the construction of s. 87 (1) (f) and I need say no more than that.

The rule nisi for prohibition and certiorari should be discharged so far as it is based on the grounds 1 (b) and 2 (a) and (b) of the order nisi granted on 9th March 1973.

Counsel for Rooney indicated that, apart from the grounds taken before us, there were other grounds (not of a constitutional character) to be argued in support of the application for prohibition and certiorari. The cause should be remitted to the Supreme Court of South Australia to be dealt with in the light of the conclusion reached by this Court on the grounds which it has considered.