Russell and Russell [1976] HCA 23

Russell and Russell [1976] HCA 23 - HCA 1976 case summary — Zoe

[11]

In expressing the notion that the Parliament is entitled to do no more than confer additional jurisdiction on an existing court and to make that investiture effective, members of this Court have used a number of expressions to indicate what is beyond the power of the Parliament. Thus it has been said that "the reconstitution of the tribunal itself or of the organization through which its powers and jurisdiction are exercised" is beyond the power of the Parliament: Le Mesurier v. Connor [7] (and see [8] ); the Parliament cannot change "the character or constitution" of the State court or its "nature as a judicial organism": Adams v. Chas. S. Watson Pty. Ltd. [9] ; "the constitution or structure of the court cannot be changed by the Federal Parliament": Peacock v. Newtown Marrickville and General Co-operative Building Society No. 4 Ltd. [10] . It has been argued that the Parliament, in enacting s. 97 of the Act, did not go beyond the limits of its power as indicated by those descriptive phrases. However, expressions such as these were not in my opinion intended to be, and are not, a complete statement of the respects in which legislative power is lacking. They are only attempts to indicate aspects of the broad principle that the court to be invested with jurisdiction is the State court "as it exists": see Peacock v. Newtown Marrickville and General Co-operative Building Society No. 4 Ltd. [10] , and see also Kotsis v. Kotsis [11] . The statement that the Parliament must take the State court as it finds it is obviously too wide if intended to refer to the limits of the court's jurisdiction as defined by the State law, because the power to invest a court with federal jurisdiction necessarily enables the Parliament to enlarge or alter its jurisdiction. Such a statement is, however, in my opinion correct if it is understood to mean that the court itself must be taken as it is found. In Adams v. Chas. S. Watson Pty. Ltd. [12] Latham C.J. spoke of "the distinction between structure and function"; he went on to say: "The Commonwealth Parliament cannot change the structure of a State court, but it may confer new functions upon such a court". Clearly that statement is correct - the exercise of invested federal jurisdiction may entail the performance of new functions. However, it does not follow, and in my opinion Latham C.J. did not mean, that any interference with the functions of a court invested with federal jurisdiction is necessarily within the power of the Parliament. Such a statement would be far too wide and would ignore the principles by which the validity of the legislation is to be decided. The question in my opinion is whether the Parliament has done more than to invest the court with federal jurisdiction and to make such investiture effective.

[13]

In Lorenzo v. Carey [13] , five members of this Court cited with approval the remark of Isaacs J. in Baxter v. Commissioners of Taxation (N.S.W.) [14] : "Once the jurisdiction became federal the Commonwealth Parliament could at will regulate the procedure and control the method and extent of relief ". As a generalization this dictum appears to be correct, although the source of the Parliament's authority to regulate procedure in State courts exercising federal jurisdiction is by no means clear. In The Commonwealth v. Limerick Steamship Co. Ltd. [15] , Isaacs and Rich JJ. said that "the procedure and the practice to be observed in relation to Federal jurisdiction is incidental to the powers of the Federal Judicature and so within par. xxxix of sec. 51 of the Constitution "; as I have indicated, it is unnecessary for present purposes to consider whether a State court exercising federal jurisdiction is part of the federal judicature. In other cases it has been suggested that the powers to legislate with respect to the topics mentioned in other paragraphs of s. 51 would provide the necessary authority. In Bond v. George A. Bond and Co. Ltd. and Bond's Industries Ltd. [16] , Rich and Dixon JJ. said that "Section 77(iii.) considered with sec. 51(xvii.) confers ample power upon the Parliament to bestow upon State Courts" (scil., invested with federal jurisdiction in bankruptcy) "all powers appropriate to bankruptcy jurisdiction and all authority incidental to the exercise of such powers". In Kotsis v. Kotsis [17] , Menzies J. apparently took a similar view; he said that s. 127 of the Matrimonial Causes Act 1959 Cth (as amended) (which gave the Governor-General power to make rules for or in relation to the practice and procedure of the courts having jurisdiction under that Act) was a valid exercise of the power of Parliament conferred by s. 51 (xxii.). The questions of the extent of and limits on the power of the Parliament to regulate the practice and procedure of a State court invested with federal jurisdiction were not fully discussed in those cases, and it is not necessary in the present case to express any concluded opinion upon them. It seems clear enough that the Parliament could validly legislate with respect to such matters as the time within which proceedings should be brought (Adams v. Chas. S. Watson Pty. Ltd. [18] ) and the rules of evidence to be applied (Milicevic v. Campbell [19] ). I accept that it might also prescribe rules of practice and procedure to be observed. But on that assumption it is necessary to consider whether a particular provision is no more than a law regulating the practice and procedure which the State court is to follow in exercising its invested jurisdiction, or whether it goes further and is a law with respect to the court itself.

[15]

In my opinion, s. 97 of the Act is a law of the latter character. The judges of the Supreme Courts, when sitting in court, traditionally wear robes. Some persons consider that robes are outmoded and should be dispensed with; others regard them as a valuable symbol of the antiquity of the honourable traditions of the law and as a means of adding to the dignity of proceedings that are of their nature serious and important. We are not required to join in this controversy. It would not matter if we thought that judges could perform the duties of their office equally well if they were unrobed or that matrimonial proceedings would more appropriately be conducted in an informal atmosphere by judges wearing informal dress. The question to be decided is to be determined by a consideration of the Constitution, and not by our opinions on matters of policy of that kind. If the Parliament considers that matrimonial jurisdiction should be exercised by judges who do not robe, it can create a federal court in which the wearing of robes is proscribed - as it in fact has done. If it chooses to invest a State court with jurisdiction, it has no power to direct the judges of that court to depart from their existing standards of judicial dress. The question may be thought to be of no great importance, but its implications are by no means insignificant. The robes worn by the judges of the Supreme Court are a mark of their status. If the Parliament could legislate as to what the judges shall or shall not wear, it could force upon a court a mode of dress incompatible with its former dignity and status. Such a law might be regarded as changing the nature or character of the court, but whether or not that view would be correct, the law would in my opinion be one with respect to the court itself. In one sense, such a law might be said to be a law as to practice and procedure. The same might be said of a law which prescribed the places where and the hours during which the court must sit, or how the courtroom should be furnished, or what officials should attend the judge in court, or which required the judge to give his judgment within a particular time. Laws of that kind would go beyond merely providing for the practice and procedure to be observed in State courts exercising federal jurisdiction, and would amount to a regulation of the court itself, which is beyond the powers of the Parliament.

[30]

The term "maintenance agreement", which is used in par. (d) of the definition of "matrimonial cause", is widely defined in s. 4(1) and includes an agreement in writing made between the parties to a marriage that makes provision with respect to financial matters. Proceedings of the kind referred to in par. (a) or (b) of the definition of "matrimonial cause" are "proceedings for principal relief": s. 4(1). By s. 8(1), after the commencement of the Act (a) proceedings by way of a matrimonial cause shall not be instituted except under the Act, and (b) proceedings by way of a matrimonial cause instituted before the commencement of the Act shall not be continued except in accordance with s. 9. By s. 9(1) pending proceedings for (inter alia) a decree of dissolution of marriage may be continued and shall be dealt with as if the Act had not been passed. That provision is subject to s. 9(2), which enables a party, in the circumstances mentioned in that sub-section, to request that pending proceedings for dissolution of marriage shall be dealt with as if they were proceedings instituted under the Act on the ground referred to in s. 48. By s. 9(4) it is provided as follows: Pending proceedings constituting a matrimonial cause, not being proceedings for principal relief, whether instituted under the repealed Act or under the law of a State or Territory, may be continued and shall be dealt with as if they were proceedings instituted under this Act. Section 39, which has already been mentioned, provides that matrimonial causes may be instituted in the Family Court or in the Supreme Court of a State or Territory or, in the case of proceedings which are not proceedings for principal relief, in a court of summary jurisdiction of a State or Territory. Section 64 deals with the powers and duties of a court in custody proceedings. Section 74 provides that in proceedings with respect to the maintenance of a party to a marriage or of a child of a marriage the court may make such order as it thinks proper for the provision of maintenance in accordance with Pt VIII of the Act. Section 78(1) provides that in proceedings between the parties to a marriage with respect to existing title or rights in respect of property the court may declare the title or rights, if any, that a party has in respect of the property. By s. 78(2) the court may make consequential orders, including orders as to sale, partition and possession. By s. 78(3) an order under the section is binding on the parties to the marriage but not on any other person.

[35]

It has been settled by the decision in Attorney-General (Vict.) v. The Commonwealth [22] that the power given by par. (xxi.) is not limited to making laws with respect to the solemnization of marriage. The word "marriage" in the paragraph is not to be understood as having the narrow meaning of act or ceremony of marriage; it means the relationship that exists between man and wife. The power to make laws with respect to that relationship does of course enable the Parliament to legislate as to the manner in which the relationship may be created, but it extends also to the making of laws which provide for the legal consequences that flow from the relationship, at least laws as to the rights and obligations of the parties to the marriage that arise out of the marriage relationship. This view was, I think, accepted by the majority of the Court in Attorney-General (Vict.) v. The Commonwealth - see per Kitto J. [23] ; per Taylor J. [24] ; per Menzies J. [25] ; and per Owen J. [26] . Kitto J. left open the question whether a law operating by reference to the marriage status, such as a Married Women's Property Act, would be a law with respect to marriage [23] and it is unnecessary to decide that question in the present case. Unless par. (xxii.) limits the meaning of par. (xxi.) - a question to which I shall shortly turn - the power to make laws with respect to marriage would in my opinion enable the Parliament to declare the duty of one party to a marriage to support and maintain the other. Since the procreation and nurture of children is one of the ends of marriage, the power would also in my opinion enable Parliament to declare the rights and duties of the parties to a marriage with respect to the custody and maintenance of the children of the marriage. When the Parliament is empowered by one of the paragraphs of s. 51 to create substantive rights and liabilities it may also under the same power provide for the enforcement of those rights in legal proceedings, although the investiture of a State court with federal jurisdiction for that purpose is to be effected under s. 77(iii.). Therefore par. (xxi.), if read alone, would in my opinion enable the Parliament to legislate for the enforcement of the rights which one party had against the other and which arose from the marriage relationship, including rights to maintenance and custody. 1. (1962) 107 C.L.R. 529. 2. (1962) 107 C.L.R., at p. 554. 3. (1962) 107 C.L.R., at p. 560. 4. (1962) 107 C.L.R., at p. 572. 5. (1962) 107 C.L.R., at p. 602. 6. (1962) 107 C.L.R., at p. 554.

[38]

I do not assent to this contention and would not be prepared to do so even if it seemed to me that, standing alone, par. (xxi.) would justify the enactment of every law expressly authorized by par. (xii.) for the fact that the constitutional instrument contains express provision for the matters mentioned in the latter paragraph provides no warrant for reading "Marriage", merely, as "Solemnization of Marriages". What must be borne in mind is that the expression with which we are concerned is used to define a broad constitutional power and in the paragraph in question the word "marriage" - appearing without limitation or qualification - is entitled to as wide an interpretation as it can reasonably bear. Menzies J. said [30] : Although I am disposed to think that had there been no s. 51(xxii.) the marriage power would of itself have covered divorce, I do not think the existence of s. 51(xxii.) requires the implication that s. 51(xxi.) is limited to determining who may marry and the forms and ceremonies of marriage. These observations do not in my opinion assist in considering the question whether the concluding provision of par. (xxii.), containing as it does words intended to indicate a limitation on the power of Parliament, operates to limit the power conferred by par. (xxi.) as well as that conferred by par. (xxii.). In Lansell v. Lansell [31] , where the Court upheld the provisions of s. 86 of the Matrimonial Causes Act 1959 Cth (which enabled the court to require one party to a marriage to make a settlement of property in favour of the other), it was emphasized in the judgments of all the members of the Court that the jurisdiction created by the section could only be exercised in proceedings for divorce or some other matrimonial cause, i.e. where the order made was ancillary or incidental to such proceedings [32] . Kitto and Menzies JJ. expressly stated their doubts whether if the section had created a jurisdiction that could be exercised independently of divorce or other matrimonial proceedings it would have been within power [33] . In my opinion it is not proper in the construction of par. (xxi.) to ignore the restrictions on power contained in par. (xxii.). To do so would in effect make the concluding words of par. (xxii.) quite ineffective. Paragraph (xxii.) resembles par. (xxxi.) in that in each case there is an express indication of an intention that the power of the Parliament should be subject to a specified limitation. It would in my opinion give altogether too little weight to the words of par. (xxii.) to regard par. (xxi.) as granting a power to make laws with respect to parental rights and the guardianship and custody of infants even when those matters had no relation to divorce or any other matrimonial cause. 1. (1961) 105 C.L.R. 361, at pp. 370-372. 2. (1962) 107 C.L.R. 529. 3. (1962) 107 C.L.R., at p. 560. 4. (1962) 107 C.L.R., at p. 572. 5. (1964) 110 C.L.R. 353. 6. (1964) 110 C.L.R., at pp. 359, 367, 368, 369. 7. (1964) 110 C.L.R., at pp. 359, 368.

[41]

Section 39 of the Act confers a jurisdiction in matrimonial causes which by embracing all the proceedings described in the definition of that expression is too wide. It is the second class of case referred to by Dixon J. in his judgment in R. v. Poole; Ex parte Henry [No. 2] [34] . The question therefore is whether the Parliament intended the provisions to have a distributive effect. The provisions of s. 15A of the Acts Interpretation Act 1901-1973 Cth create the presumption that it did have that intention, that is, that the general words were intended to be distributable: Bank of New South Wales v. The Commonwealth [35] . If the definition in par. (c) is confined to proceedings between the parties to the marriage which are ancillary to proceedings for principal relief, s. 39, operating in conjunction with the provisions of par. (c) of the definition, will be within power. It would not, in my opinion, be sufficient to confine par. (c) to proceedings between the parties to a marriage not being ancillary proceedings, because for the reasons already given the provisions of pars (ii) and (iii) of par. (c) of the definition would then both go beyond power. The only way in which all the general provisions of par. (c) can be limited so as to confine them within constitutional bounds is to restrict the definition to proceedings between the parties to a marriage being ancillary to proceedings for principal relief. Section 9(4) of the Act needs to be similarly confined in order to render it valid. The intention of the Parliament as expressed in s. 15A of the Acts Interpretation Act should be given effect by restricting the proceedings referred to in par. (c) of the definition of matrimonial cause in s. 4 of the Act to proceedings between the parties to the marriage which are ancillary to proceedings for principal relief. When the effect of the Act is limited in this way no problem arises as to the operation of ss. 64, 74 and 78 because those sections can only apply in cases in which a court has jurisdiction under s. 39.

[65]

Non-compliance with the valid provisions of sub-s. (4), as to judge and counsel being robed, will not, I think, result in invalidity of proceedings. Such a consequence would be as bizarre as it would be unjust and finds no support in authority. The presence of robes in no way alters the substance of the proceedings, it does not go to jurisdiction nor does it effect the legal rights being adjudicated upon the proceedings. To apply to this case the traditional distinction between mandatory provisions and those which are merely directory is inappropriate if the term directory is used to suggest that the legislature required no more than substantial, rather than precise, compliance with its command; in the present case I have no doubt that what is called for is precise compliance. But the contrast between mandatory and directory is in point if it is to the consequences of non-compliance that attention is directed. It cannot, I think, have been contemplated by the legislature that the consequence of non-compliance should be nullity of proceedings, the less so since the non-compliance is not that of a party to the proceedings but of the court itself. This is such a case as was spoken of in the joint judgment of the majority in Clayton v. Heffron [57] ; it is the mode of performance of a public duty, not the exercise of private rights, that is in question and a departure from the required mode of performance should not readily be treated as bringing with it invalidity with all its dire consequences, especially where status and capacity are in question; and see Montreal Street Railway Co. v. Normandin [58] and Ex parte Tasker [59] . I do not think that the observation of their Lordships in Public Prosecutor v. Oie Hee Koi [60] , that enactments regulating the procedure to be followed in courts are usually imperative and not directory, was intended to extend to a case such as the present, so very different from that which their Lordships had in hand; nor does anything in the legislation as a whole conduce to such a mandatory construction. Indeed the vagueness of the immediately proceeding sub-section, to which I have already referred, points strongly in an opposite direction. Accordingly, I conclude that non-compliance with sub-s. (4) produces no effect upon the validity of decrees or orders.

[117]

Part VII of the Family Law Act 1975 deals with the welfare and custody of children of a marriage. Part VIII deals inter alia with the maintenance of such children. By s. 5 the words "a child of the marriage" include, inter alios, a child of either the husband or the wife if at the relevant time the child was ordinarily a member of the household of the husband and wife. The "relevant time" is defined in s. 5(2). Part VII is not limited to questions of custody and welfare arising when proceedings have been instituted for "principal relief", that is to say, for dissolution of marriage, nullity of marriage or declaration of validity of marriage or of its dissolution or nullity or arising when decrees in such proceedings have been made. The Act purports to deal with the law governing custody and welfare of a child of a marriage generally and with the powers and duties of a court in proceedings with respect thereto. Nor is Pt VII limited to proceedings between the parties to a marriage. Both it and the definition of matrimonial cause in s. 4 and the extent of the jurisdiction in matrimonial causes conferred by Pt V of the Act manifest an intention that a court exercising jurisdiction under the Act may make an order for the custody of a child of a marriage at the suit both of a party to the marriage and of a third party and whether or not the marriage has terminated by death of one or both of the parties thereto or by dissolution thereof. Likewise Pt VIII of the Act is intended to apply to maintenance of a child of a marriage when it is sought in proceedings where no principal relief is claimed, and when the marriage has terminated by the death of one of the parties thereto (ss. 73, 74, 82). Subject to an exception found in s. 79 to which I hereafter refer, in both Pt VII and Pt VIII the power of the Court to make orders is made to depend upon the child being below a certain age. Section 61(2) provides that an order with respect to the custody or guardianship of, or access to, a child shall not be made in respect of a child who has attained the age of eighteen years. Section 73 provides substantively that the parties to a marriage are liable, according to their respective financial resources, to maintain the children of the marriage who have not attained the age of eighteen years.

[155]

There is nothing in the doctrine enunciated in Le Mesurier v. Connor [4] , and acknowledged in the other cases to which I have referred, which would support the view that the Commonwealth Parliament when it invests a State court with Federal jurisdiction cannot prescribe the practice and procedure to be followed by parties who invoke, and by the Court which exercises, the invested jurisdiction. If the laws on the practice and procedure are within the subject matter of Commonwealth power and do not alter the structure of the State court then they offend no established principle. Section 97 is within the subject matter of Commonwealth power contained in s. 51(xxi.). Section 97(1) operates to ensure that in matters concerning the marriage relationship and the children of the marriage there shall be a large degree of privacy. One is tempted to refer to analogous legislative provisions in this field which recognize the desirability of some such privacy but to do so would be to fall into the error of testing the extent of Commonwealth power in respect of particular legislation by the novelty or lack of novelity in its concept. However, in another field an example may be taken. In an action for infringement of a patent heard in a State court exercising federal jurisdiction it would surely be open to the Commonwealth to legislate that evidence of the alleged infringing process if it be claimed to be a secret process be heard in a closed court. I cannot see why such a provision being within the subject matter of power should nevertheless be invalid as a matter affecting the constitution or organizational structure of the State court. Similarly in the present case the purpose and effect of the section as a whole being the avoidance of formality and publicity in proceedings under the Act, the avoidance thereof is within the subject matter of power. If then, being otherwise within power, do any of the provisions of s. 97 alter the constitution or organizational structure of the Supreme Court of Victoria? They do not. The same Court sits whether the place of hearing be open or closed to the public and whether or not any particular form of dress is prescribed. The objections which have been raised seem to me to depend ultimately on a denial that such prescriptions as are found in s. 97 are within the subject matter of the Commonwealth power itself rather than on the assertion that the structure of the court is altered. But this objection is met by the special nature of the proceedings under the Family Law Act 1975.

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