FEDERAL COURT OF AUSTRALIA
Billington v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] FCA 480
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IN THE FEDERAL COURT OF AUSTRALIA |
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Applicant | |
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AND: |
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS First Respondent ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND Intervener |
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DATE OF ORDER: |
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WHERE MADE: |
SYDNEY (VIA VIDEO LINK TO BRISBANE) (HEARD IN BRISBANE) |
THE COURT ORDERS THAT:
1. The applicant is granted an extension to 3 September 2012 within which to file a notice of appeal.
2. The draft notice of appeal appended to the application filed on 3 September 2012 is deemed to be a notice of appeal filed on that date.
3. The question of law on the appeal is, “Did the successive temporary assessment orders made under the Child Protection Act 1999 (Qld) in respect of the applicant’s infant son (born in New South Wales on 30 March 2011 and who did not enter Queensland before 4 April 2011), on and from their making, have the lawful effect that the applicant did not have legally responsibility for the day-to-day care, welfare and development of her son on 1, 2 and 3 April 2011 such that she was thereby ineligible to receive a payment of benefit under the A New Tax System (Family Assistance) Act 1999 (Cth) in respect of those days?”
4. The appeal is dismissed.
5. There be no order as to costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011
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QUEENSLAND DISTRICT REGISTRY |
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GENERAL DIVISION |
QUD 463 of 2012 |
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ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL |
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BETWEEN: |
AVIVA FRANCES MAYE BILLINGTON Applicant |
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AND: |
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS First Respondent ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND Intervener |
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JUDGE: |
LOGAN J |
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DATE: |
22 MAY 2013 |
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PLACE: |
SYDNEY (VIA VIDEO-LINK TO BRISBANE) (HEARD IN BRISBANE) |
REASONS FOR JUDGMENT
1 Such is the nature of the modern welfare state and the correspondingly pervasive role of government in our society that, sometimes, large constitutional questions can arise in unexpected ways and in respect of the most natural of events, in this case the birth of a child.
2 On 30 March 2011 at 6:07pm the applicant, Ms Aviva Billington, gave birth to a son, Brett at the Tweed Hospital, New South Wales. She remained in hospital as did her infant son, until 4 April 2011.
3 On 5 April 2012, Ms Billington lodged with the Commonwealth agency Centrelink an application for a benefit payment under the A New Tax System (Family Assistance) Act 1999 (Cth) (the Family Assistance Act) known as the “baby bonus”.
4 By virtue of s 36, one of the eligibility criteria for this particular benefit is that the child be an “FTB child” as defined by the Family Assistance Act. Materially, that status is conditioned upon the individual child being “in the adult’s care” and that “the circumstances surrounding legal responsibility for the care of the individual are those mentioned in paragraph 5(a), (b) or (c)”: s 22(2)(b) and (d), Family Assistance Act. By s 22(5) of the Family Assistance Act it is provided:
(5) The circumstances surrounding legal responsibility for the care of the individual are:
(a) the adult is legally responsible (whether alone or jointly with someone else) for the day-to-day care, welfare and development of the individual; or
(b) under a family law order, registered parenting plan or parenting plan in force in relation to the individual, the adult is someone with whom the individual is supposed to live or spend time; or
(c) the individual is not in the care of anyone with the legal responsibility for the day-to-day care, welfare and development of the individual.
5 On 31 March 2011, at 6:02pm, a magistrate at Southport, Queensland made, or at least purported to make, an order under the Child Protection Act 1999 (Qld) (Child Protection Act) in respect of Brett. The order was a “temporary assessment order” under ss 27, 28 and 29 of that Act (reproduced below). Such an order can be and in this case was made without notifying the child’s parents of the application or hearing them on the application: s 26, Child Protection Act. If lawful, that order placed Brett in the care of the chief executive (the permanent head of the Department of Community Services, the Queensland government department to which the administration of the Child Protection Act was consigned). That order was to expire at midnight on 3 April 2011. On 1 April 2011, at 8:50am, another Queensland magistrate at least purported to make an order under s 34 of the Child Protection Act extending the earlier temporary assessment order until midnight on 4 April 2011. From 4 April 2011, Brett has been in foster care. Ms Billington has had no contact with him on and from that time.
6 The operative provisions of each temporary assessment order were in like terms. Each order:
(a) authorised an “authorised officer” (an appointment under the Child Protection Act) or police officer to have contact with Brett;
(b) authorised a medical examination or treatment of Brett;
(c) authorised an authorised officer or police officer to take Brett into the chief executive’s custody while the order was in force; and
(d) directed Ms Billington and her partner, the father of the child not to have contact, direct or indirect, with Brett, other than when a person approved by the Department was present.
7 Initially, a delegate of the respondent Secretary within Centrelink rejected Ms Billington’s claim in full. That was on the basis of a view that Brett had never been in her care. Upon internal review within Centrelink, that decision was vacated and replaced by a decision that Ms Billington was entitled to be paid the baby bonus for one day namely, 30 March 2011. That was because she was legally responsible for Brett’s care on that day. As to the period thereafter, the view was taken that the effect of the two temporary assessment orders and then other orders relating to his placement in foster care (which it is not necessary to detail) was that Ms Billington was no longer legally responsible for Brett’s day-to-day care, welfare and development. That decision was affirmed by the Social Security Appeals Tribunal.
8 Ms Billington sought the review by the Administrative Appeals Tribunal (tribunal) of the Secretary’s decision as affirmed by the Social Security Appeals Tribunal. On 27 March 2012, the tribunal decided that Ms Billington was entitled to receive payment of the bonus for not one but rather two days, 30 and 31 March 2011, but not thereafter: Re Billington and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 181 (Mr P Wulf, Member). In summary, the occasion for the tribunal’s substitution of a decision that Ms Billington was entitled to two, rather than one day’s payment of the bonus was that the first of the temporary protection orders was not made until 6:02pm on 31 March. By that time, Ms Billington had had the legal responsibility for Brett’s care for more than 75% of that day. Underpinning the tribunal’s decision was the conclusion the effect of the temporary protection orders was that, while they were in force, she ceased to have the legal responsibility for Brett’s day to day care.
9 On 3 September 2012, Ms Billington filed an application for an extension of time within which to appeal to the court from the tribunal’s decision under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). For the appeal to be competent, an extension is necessary. An appeal as of right lies only if a notice of appeal is filed not later than the twenty-eighth day after the day on which a document setting out the terms of the decision of the tribunal is given to the applicant and then only on a question of law: s 44(2A)(a) and s 44(1), respectively, AAT Act.
10 Ms Billington acted for herself both when filing the application and upon its hearing. Regard to her application and its accompanying draft notice of appeal discloses that she is aggrieved by the tribunal’s decision only to the extent that it denies her a baby bonus payment for the entire time in which she and her baby son were in hospital in the period following his birth. She does not assert that she has any entitlement on and from their discharge date, which was 4 April 2011. She accepts that, thereafter, the chief executive and the foster parents with whom Brett was placed had his care. The difference between Ms Billington and the Secretary is therefore whether Ms Billington was entitled to a bonus payment for five days, as she asserts or but two days, which the Secretary submits the tribunal correctly found.
11 The basis upon which Ms Billington asserts that she is entitled to further payment is that she did in fact render care to her baby for the entire time in which they were in hospital together. The tribunal member found that Ms Billington, “while supervised, undertook parental care of [Brett] while he was in hospital by feeding and generally looking after the child apart from the standard care given by hospital staff”. He further found that hospital staff supervised [Ms Billington] at all times and advised her, among other things, how to handle [Brett] and other aspects that a new mother is unlikely to fully understand”. In other words, the finding below was that Ms Billington, under supervision, did in fact care for her baby son for the entire time during which they were in the Tweed Hospital following his birth. Notwithstanding this finding, the tribunal member considered that, having regard to s 22(5) of the Family Assistance Act and the succession of temporary protection orders, he had “no option” other than to conclude that Ms Billington was not entitled to bonus payments after 31 March 2011.
12 At one stage, the Secretary advanced a submission in this Court that the rendering of care by a mother in a maternity ward under the supervision of medical or midwifery or other nursing staff itself meant that the mother was not, in terms of s 22(5)(a) of the Family Assistance Act “legally responsible (whether alone or jointly with someone else) for the day-to-day care, welfare and development of the individual”. When it was pointed out that to adopt such a construction of that provision would render ineligible for the benefit many if not most Australian mothers in the days initially following their child’s birth, this submission was not, on reflection, pressed. In the ordinary course of events a mother, either alone or with the father of the child, is legally responsible for the care of a baby following its birth. That, prudently, new parents avail themselves of the benefit of suitably qualified and available care and advice during in patient confinement of mother and newly born child does not render them ineligible for the baby bonus for which the Family Assistance Act provides. Absent some order to the contrary, it is the parents who have legal responsibility for the care of their child on and from its birth. Inferentially, one of the very reasons for choosing to give birth in a maternity ward is so as to discharge that responsibility with the assistance of appropriately trained staff in the period immediately following birth and before taking their child home. The Family Assistance Act does not compel a mother continually to “room in” and to exclude all paediatric, midwifery and nursing assistance in order to qualify for the baby bonus.
13 As submissions progressed, it became ever more apparent that the real difference between the parties and the only question of law in the case was whether the effect of the successive temporary protection orders was that, on and from their making (or notification, which appears to have been on 31 March and 1 April 2011 respectively, very shortly after each was made), legally responsibility for the day-to-day care, welfare and development of Brett passed from Ms Billington to the chief executive.
14 Whether or not to grant an extension of time within which to appeal entails, inter alios, considering whether the applicant has provided an acceptable explanation for the delay, prejudice which may be visited on a respondent by any extension and whether the question of law sought to be agitated at least has the merit of being reasonably arguable.
15 It was obvious from the affidavit which she made in support of her extension of time application that the denying of any further eligibility had been and continued to be a source of considerable and, I do not doubt, genuine anxiety on Ms Billington’s part. That conclusion coincided with my observation of Ms Billington over the course of the hearing. I formed the strong impression that her sense of self-worth as a mother and dismay at the removal of her son had been exacerbated by dwelling on the result of the tribunal’s decision, ie that securing the bonus for an additional few days would for her be a vindication that she had indeed truly cared for Brett for all of the time they were together. The application to the court was her means of seeking to alleviate this enduring source of grievance. Her motivation for seeking leave to appeal was not mercenary.
16 Ms Billington stated that she was confused as to how to challenge the tribunal’s decision. These days, with so much law and practice available via the internet to the world at large it has never been easier for a layperson to ascertain how to make such a challenge. That said, and I mean no disrespect to her in this, I accept that Ms Billington did have difficulty in ascertaining how to challenge the tribunal’s decision. Again to my direct observation, while she at all times conducted her case in a courteous and respectful manner, she was demonstrably neither well educated nor sophisticated in her thinking. It is true that she did rest for some months after the tribunal’s decision on whatever right of appeal on a question of law that decision presented. As against this, the prejudice to the Commonwealth is slight. It could hardly be suggested (and it was not), for example, that three days baby bonus payment would make any difference as to whether the Federal budget was or was not in surplus.
17 In these circumstances, it is highly relevant, if not decisive, in respect of the extension of time application to consider the legal merits of the question of law entailed, which was whether the effect of the temporary assessment orders was that Ms Billington was not legally responsible for the care of Brett after 31 March 2011?
18 Subject to one reservation, which I voiced during what proved to be the initial phase of the hearing, my conclusion is that the two temporary protection orders did indeed pass legal responsibility for Brett from Ms Billington to the chief executive with the consequence that the tribunal’s conclusion that she was not eligible to receive any further baby bonus was correct.
19 The reservation arose in the following way.
20 The Child Protection Act does not explicitly confine its application to a child in Queensland or even to a child ordinarily resident or domiciled in Queensland. “Child” is defined by s 8 of that Act as “an individual under 18 years”. In light of the Acts Interpretation Act 1954 (Qld) (Acts Interpretation Act), that definition (and the whole of the Child Protection Act) must be read to the full extent of, but not to exceed, the Queensland Parliament's legislative power (s 9(1)(a)) and subject to an implication in relation to Queensland for which s 35(1) provides namely:
35 References to Queensland to be implied
(1) In an Act
(a) a reference to an officer, office or entity is a reference to such an officer, office or entity in and for Queensland; and
(b) a reference to a locality, jurisdiction or other thing is a reference to such a locality, jurisdiction or other thing in and of Queensland.
The effect of the definitions of the term “entity” and, in turn, “person” in s 36 of the Acts Interpretation Act is that an “individual” falls within the term “entity” as used in s 35 of that Act.
21 The Child Protection Act poses and by a definition answers (s 10) for its purposes the question who is a “child in need of protection” in this way:
Who is a child in need of protection
A child in need of protection is a child who—
(a) has suffered harm, is suffering harm, or is at unacceptable risk of suffering harm; and
(b) does not have a parent able and willing to protect the child from the harm.
22 In turn, the provisions authorising the making of a temporary protection order by a magistrate, delineating the rights conferred by such an order and specifying the maximum duration of such an order, ss 27, 28 and 29 of the Child Protection Act, provide as follows:
27 Making of temporary assessment order
(1) The magistrate may make a temporary assessment order for the child only if the magistrate is satisfied—
(a) an investigation is necessary to assess whether the child is a child in need of protection; and
(b) the investigation can not be properly carried out unless the order is made.
(2) However, in deciding the application, the magistrate must also be satisfied reasonable steps have been taken to obtain appropriate parental consent to the doing of the things sought to be authorised under the order or it is not practicable to take steps to obtain the consent.
(3) In this section—
appropriate parental consent means—
(a) if the child does not have long-term guardians—the consent of at least 1 of the child’s parents; or
(b) if the child has long-term guardians—the consent of at least 1 of the long-term guardians.
28 Provisions of temporary assessment order
(1) The magistrate may make a temporary assessment order for the child that provides for any 1 or more of the following the magistrate considers to be appropriate in the circumstances—
(a) authorising an authorised officer or police officer—
(i) to have contact with the child; and
(ii) if the magistrate is satisfied it is necessary to provide interim protection for the child while the investigation is carried out—to take the child into, or keep the child in, the chief executive’s custody while the order is in force;
(b) authorising the child’s medical examination or treatment;
Editor’s note—
Section 97 (Carrying out medical examinations or treatment) applies to the medical examination or treatment.
(c) directing a parent not to have contact (direct or indirect)—
(i) with the child; or
(ii) with the child other than when a stated person or a person of a stated category is present.
(2) In addition, the order may also authorise an authorised officer or police officer to enter and search any place the officer reasonably believes the child is, to find the child, if the magistrate is satisfied—
(a) entry to a place has been, or is likely to be, refused, or it is otherwise justified in particular circumstances, including, for example, because the child’s whereabouts are not known; and
(b) the entry is necessary for the effective enforcement of the order.
(3) On entering a place, an authorised officer or police officer may remain in the place for as long as the officer reasonably considers necessary for exercising the officer’s powers under this section.
(4) An authorised officer or police officer may exercise powers under the order with the help, and using the force, that is reasonable in the circumstances.
29 Duration of temporary assessment orders
(1) A temporary assessment order must state the time when it ends.
(2) The stated time must not be more than 3 business days after the day the order is made.
(3) The order ends at the stated time unless it is extended.
(4) Regardless of subsections (1) to (3), the order ends when the child turns 18 years.
23 There is a New South Wales equivalent of the Child Protection Act namely, the Children and Young Persons (Care and Protection) Act 1998 (NSW) (the NSW Act). By s 4 of the NSW Act it is provided:
4 Children and young persons to whom this Act applies
The functions conferred or imposed by this Act and the regulations may be exercised in respect of children and young persons:
(a) who ordinarily live in New South Wales, or
(b) who do not ordinarily live in New South Wales, but who are present in New South Wales, or
(c) who are subject to an event or circumstances occurring in New South Wales that gives or give rise to a report.
Even if he could not be said to have ordinarily lived in New South Wales during the period in question, Brett was, at the time when each of the Queensland temporary assessment orders was made, present in New South Wales. The NSW Act makes provision for assessment orders (Div 6 of Pt 1 of Ch 5), which may be made (s 55) in conjunction with an emergency care and protection order (s 46) in respect of a child. The effect of an emergency care and protection order, while in force, is to place the child or young person in the care and responsibility of the New South Wales Director-General or the person specified in the order (s 46). In short, the NSW Act provides for the making of orders having like effect to the temporary assessment orders made by the Queensland magistrate under the Child Protection Act and in respect of children whose connection with that State is presence alone.
24 The reservation which I voiced, particularly having regard to the explicit reach of the NSW Act, was whether it was lawfully possible for a magistrate exercising power under the Child Protection Act to make an order in respect of a child who was not only not present in Queensland at the time when the order was made but also had never entered Queensland?
25 Against this background, the Secretary initially had no submission as to how it was within the legislative competence of the Queensland parliament to enact legislation which would empower the magistrate to make either of the temporary protection orders such that legal responsibility for Brett’s care was removed from Ms Billington and transferred to the chief executive. That was not a subject which had received any attention at any stage during the hierarchy of administrative decision-making which culminated in the tribunal’s decision. Nor, so far as the evidence before the tribunal revealed, had it received any attention at the times when successive Queensland magistrates made the successive temporary assessment orders.
26 After being afforded an adjournment so as to make submissions in respect of the subject, the Secretary drew attention to some observations made in the Queensland Court of Appeal by Keane JA (as his Honour then was), with whom Muir JA and Lyons J agreed, in SBD v Chief Executive, Department of Child Safety [2008] 1 Qd R 474 at [29] and at [32] (SBD v Chief Executive, Department of Child Safety):
[29] Insofar as it is necessary to read down the general words of the Act to ensure a sufficient connection to Queensland to preserve its constitutional validity, sufficient connection exists where a child has suffered harm while he has been resident in Queensland or is at risk of suffering harm in Queensland having regard to his usual residence in Queensland. The provisions of the Act show that the purview of the Act and the associated jurisdiction of the Childrens Court are at least this broad.
…
[32] [Referring to ss 27 to 29 of the Child Protection Act in respect of temporary assessment orders] These provisions afford, in my respectful opinion, a clear indication that the purposes of the Act, and the related jurisdiction of the Childrens Court, cannot be defeated by the mere assertion that a child, who has habitually resided in the State, has been removed permanently from the State. A child who is within the purview of the Act as a child in need of protection because of harm which has occurred, or may occur, in Queensland, cannot be denied that protection merely by the removal of the child from the State. I do not presume to prejudge the merits of the application for a child protection order in this case; but it must be understood that the Act cannot responsibly be read down so as to allow exposure of a child to harm to continue in cases where a child is taken out of the State by the very person who is responsible for the harm suffered by the child. Whether a child is within the purview of the Act depends on whether the child has been harmed in Queensland, or is at risk of harm in Queensland.
27 These observations are undoubtedly relevant but in SBD v Chief Executive, Department of Child Safety the court did not have to confront, because it was not raised as an issue, how, if at all, these observations as to the reach of the Child Protection Act could be reconciled with legislation of another State which made pervasive provision for the application of that other State’s legislation even to children who did not ordinarily live in that other State but who were present in that State. The NSW Act makes just such provision and Brett, on the evidence, was just such a child. The Secretary did not concede that, in the face of the NSW Act, the temporary assessment orders could have no lawful effect. Though he did not then make reference to any authority, he submitted that they did have lawful effect.
28 For her part, and understandably as a layperson, Ms Billington did not refer to any authority but, also understandably, she did raise an interrogative note as to how the Child Protection Act could authorise orders which would have any lawful effect in New South Wales? That may not be the first time such a thought had occurred to her. There was material before the tribunal (letter of 21 October 2011 from Ms Amanda Allen, Child Safety Officer, Queensland Department of Communities to an officer of the Secretary’s department) which might have admitted of a finding that Ms Billington had chosen to give birth in the Tweed Heads Hospital because of a belief that she and the child would not there be amenable to the reach of the Child Protection Act. It was not necessary for the tribunal to make any such finding of fact, having regard to the issues as presented to it and no such finding of fact was made. Neither the Secretary nor, in due course, the Queensland Attorney-General, submitted that I should, exceptionally, make such a finding under s 44(7) of the AAT Act. Findings of fact of that kind are, if relevant at all, for the tribunal and would necessarily require affording Ms Billington in advance of the making of a finding an opportunity to be heard and to give evidence. I expressly refrain from making any such finding.
29 Having heard initial submissions and having regard to the application of the NSW Act, I formed the view that the case was one which involved matters arising under The Constitution or involving its interpretation such that I was bound by s 78B of the Judiciary Act 1903 (Cth) (Judiciary Act) to adjourn the proceeding for a time so as to allow for notices to be given to the respective Attorneys-General as that section requires. The following came to be specified in the notices as the matters which arose:
1. Under the Constitution of Queensland, as continued by s 106 of the Commonwealth Constitution and as altered thereafter, is it within the legislative competence of the Queensland Parliament, as the legislature of a subordinate body politic, within the federal Commonwealth as constituted by the Commonwealth of Australia Constitution Act 1901 (UK), to enact a law namely, the Child Protection Act 1999 (Qld), allowing for the making of a temporary assessment order, with an ensuing assessment for the purpose of considering whether to make an order for child protection, in circumstances where the child concerned was not born in and had never entered Queensland (though expected later to reside in Queensland) either at all or in circumstances where the legislature of New South Wales has, pursuant to the Children and Young Persons (Care and Protection) Act 1998 (NSW), made similar provision in respect of, materially, children present in that State?
2. By operation of s 118 of the Commonwealth Constitution, must a temporary assessment order of a Queensland Magistrate under the Child Protection Act 1999 (Qld) made in respect of the aforesaid child be recognized and is it given validity notwithstanding that the legislature of New South Wales has, pursuant to the Children and Young Persons (Care and Protection) Act 1998 (NSW), made similar provision in respect of, materially, children present in that State?
30 In response to the notices, the Queensland Attorney-General intervened in the proceeding pursuant to s 78A(1) of the Judiciary Act. I am grateful to Mr Del Villar of counsel, who appeared for the Attorney-General, for his comprehensive submissions with respect to the constitutional issues entailed in deciding whether the two temporary assessment orders made in respect of Brett could have lawful effect in New South Wales. The Attorney submitted that each temporary assessment order was valid and took effect according to its terms, there being no operative inconsistency between those orders and any order in respect of Brett under the NSW Act, because no order had been made under that Act. Those submissions were adopted by the Secretary.
31 In a federation which is now well into its second century of existence it is perhaps surprising that like questions to those specified in the s 78B notice have never been finally determined. As will be seen, that is not to say that the questions are devoid of related judicial pronouncements, for it is now well settled that a State parliament may enact legislation having extra-territorial effect, only that the extent of this effect in the face of legislation on the same subject in the State where the extra-territorial effect is asserted has not been settled. These have been cases where these questions were contingently present but, for one reason or another, it did not prove necessary finally to determine them with the result that, at most, one is left with observations made obiter dicta in passing.
32 The legislative power of the Queensland Parliament is expressed in s 2 of the Constitution Act 1867 (Qld):
Legislative Assembly constituted
Within the said Colony of Queensland Her Majesty shall have power by and with the advice and consent of the said Assembly to make laws for the peace welfare and good government of the colony in all cases whatsoever.
33 On Federation, it was that legislative power which, subject to The Constitution, was continued as the legislative power of the new State of Queensland by s 106 and s 107. That the parliament of a State had power to enact laws having extra-territorial operation and application was confirmed by s 2 of the Australia Act 1986 (Cth) and its United Kingdom mirror provision, s 2 of the Australia Act 1986 (UK).
34 For much of the first half of the 20th century the infrequency of occasion for judicial consideration how to resolve any conflict between apparently applicable statutes of different States may have been referable to lingering apprehensions, derived from the colonial era (as to which, see Union Steamship Co of Australia v King (1988) 166 CLR 1 at 11), as to the extent to which the parliaments of the newly constituted States within the Commonwealth had extra-territorial legislative competence and a corresponding reticence on the part of the States to test the limits of any such competence. This apart, the potential for conflict between statutes of general application of different States was sometimes avoided by the application rules of construction such as that found in s 35 of the Acts Interpretation Act (mentioned above) or by the adoption of a presumption that statutes were not intended to operate extraterritorially: Jumbunna Coal Mine NL v Victorian Coal Miners’ Association (1908) 6 CLR 309 at 363. Perhaps also, in the federation created by a constitution in which no one State could claim any recognition of superiority over the other, a sense of restraint was engendered by notions of mutual comity and an appreciation of the difficulties in public administration, commerce and ordinary daily life which might arise if each State legislated to the very limit of an apprehended extra-territorial legislative competence. As McHugh and Gummow JJ recognised in State Authorities Superannuation Board v Commissioner of State Taxation (WA) (1996) 189 CLR 253 at 286 (the State Authorities Superannuation Board Case), an increased capacity on the part of the States to legislate extraterritorially increases the potential for such difficulties to arise.
35 In Robinson v Western Australian Museum (1977) 138 CLR 283 (Robinson v Western Australian Museum) at 303-304 Gibbs J highlighted the nature of the problem and its origins:
The doctrine limiting the power of State legislatures to enact legislation having extra-territorial effect is colonial in its origins, vague and uncertain in its nature and often inconvenient in its operation. The only possible justification in principle for the doctrine is as a means of preventing or mitigating conflicts between the laws of two legislatures, when both sets of laws operate within the same territorial area—in other words, as a rule of international law or, within a federation, as a rule controlling the operation of the laws of one State within the territory of another. Even in such cases the doctrine should not be allowed to have an unduly narrow and restrictive effect. But when the challenged law operates within a territorial area over which no other legislature, or another but paramount legislature, has power, the application of the doctrine can achieve no useful purpose—it is then a pointlessly frustrating fetter on the exercise of a legislative power that ought to be plenary. If no other law can operate there is no possibility of conflict. Where the only other law that can operate in the area will, in the event of inconsistency, prevail, there is no reason to limit the power of the subordinate legislature, since any conflict between the two laws will, by its very existence, be resolved in favour of the law enacted by the paramount legislature.
36 In expressing this view in Robinson v Western Australian Museum Gibbs J also referred (138 CLR at 303) to views earlier expressed by him on the subject in Pearce v Florenca (1976) 135 CLR 507. In that case, his Honour comprehensively surveyed authority in relation to colonial and British Dominion extra-territorial legislative competence. In essence, Gibbs J concluded (135 CLR at 518) that the touchstone for validity was whether there existed a relevant connection between the circumstance or person to which the legislation was directed and the enacting State. This conclusion has come to be regarded as correct: Mobil Oil Australia Pty Ltd v Victoria (2002) 211 CLR 1 (Mobil Oil Australia) at [9] per Gleeson CJ and at [48] per Gaudron, Gummow and Hayne JJ. The connection need only be remote or general for State legislation to have valid application to a person or thing outside the State: Mobil Oil Australia at [48].
37 The occasion for consideration of the limits of State extraterritorial legislative competence only arises if, on its true construction, the legislation asserts an extraterritorial operation. SBD v Chief Executive, Department of Child Safety stands for the proposition that the Child Protection Act is, as a matter of construction, applicable to a child usually resident in Queensland who is at risk of suffering harm in Queensland, even if that child has been temporarily removed from Queensland and is elsewhere in Australia. That approach to the construction of the Child Protection Act involves the implication of the limitation “in Queensland” to the risk of harm, rather than to “child” where appearing in the Child Protection Act. If, for example, “in Queensland” were implied after “child” in the definition of “child in need of protection” in s 10 of the Child Protection Act, that Act would have no extraterritorial operation and no question of State legislative competence could possibly arise. On that construction, the Child Protection Act would only apply to a child physically present in Queensland. Its operation could be avoided, as Keane JA apprehended in SBD v Chief Executive, Department of Child Safety, by the expedient of removing the child from Queensland. A way of avoiding that was to construe that Act as if the territorial implication governed only the location of the risk of harm, not the child.
38 SBD v Chief Executive, Department of Child Safety is a considered decision of a State intermediate appellate court in respect of the operation of a statute of that State. Though it is not binding upon me, I consider that I should not depart from it unless convinced it is plainly wrong. I am not so convinced. That said, SBD v Chief Executive, Department of Child Safety did not concern whether the Child Protection Act could apply to a child born outside Queensland who had never entered Queensland but who was at risk of harm in Queensland. That there was such a risk was a condition precedent to the making of each of the temporary protection orders. It was no part of the tribunal’s function to determine whether there was such a risk nor is it part of my function. Rather, the question is, even though the orders were made on the basis of there being such a risk, did they have application in New South Wales to Ms Billington and Brett during the period in question in this case? To be consistent with SBD v Chief Executive, Department of Child Safety, that question must be answered by examining whether, on the basis of the authorities discussed, there was a relevant connection between Brett and Queensland. Only if the answer to that is in the affirmative, will the further question, which did not arise in SBD v Chief Executive, Department of Child Safety, which is whether the Child Protection Act can nonetheless have application in the face of the NSW Act will fall for determination.
39 The following conclusions, which flow from the evidence before the tribunal, are pertinent in deciding whether there is a “relevant connection”.
40 At the time of Brett’s birth, Ms Billington was usually a resident of Queensland. So, too, was her partner, the father of the child. Though Brett had never even visited Queensland either at the time when each temporary assessment order was made or at any stage during the compressed period which is controversial in respect of the baby bonus claim, the inescapable inference is that, from the very moment of his birth, Ms Billington and her partner intended that he would reside with them in Queensland following his discharge from hospital. Brett’s presence in New South Wales was never intended to be more than temporary.
41 Residence apart, Brett’s place of domicile was Queensland, even though he was born in New South Wales. The common law position with respect to domicile is now modified by complementary Commonwealth and State legislation in Australia. The New South Wales and Queensland Acts are pertinent in this instance. Each of Brett’s parents was, in terms of that legislation, domiciled in a “union” as defined (s 3), materially, the Commonwealth of Australia: s 10, Domicile Act 1979 (NSW) and s 10, Domicile Act 1981 (Qld). That being so, their domicile was with that part of the Commonwealth with which they had their closest connection. That part was Queensland. On the evidence, that was where the principal and permanent home of each of Brett’s parents was located at the time of his birth.
42 So far as a child is concerned, the legislation modifies (s 8) but does not wholly replace the common law with respect to domicile. The statutory modification was not applicable to Brett at the time of his birth. On his birth, Brett acquired, at common law, a domicile of origin: Udny v Udny (1869) LR 1 Sc & Div 441 (Udny v Udny). Subject to any statutory modification, the domicile so established would endure unless and until he acquired a different domicile by choice: Udny v Udny; Bell v Kennedy (1868) LR 1 Sc & Div 307 at 319. Brett’s domicile of origin at birth was determined by the domicile of the person upon whom he was legally dependent. In that regard and because his parents were not married, at common law he took his domicile from that of his mother, Ms Billington. Her place of domicile, for reasons already given, was Queensland.
43 So far as Brett’s domicile at birth is concerned, the position would be no different even if illegitimacy at common law was regarded as supplanted for the purposes of determining domicile by status of children legislation, be it that of New South Wales - Status of Children Act 1996 (NSW) or Queensland - Status of Children Act 1978 (Qld). That is because the domicile of his father was not then any different to that of his mother. So far as determination of domicile is concerned and because he was not a foundling, Brett’s place of birth, New South Wales, is not relevant: Somerville v Somerville (1801) 5 Ves 750 at 757; 31 ER 839 at 858.
44 Both Brett’s domicile and usual residence, a fortiori if taken together, provide a sufficient “relevant connection” for State legislative competence in terms of the authorities. Notably, as long ago as 1937, in Broken Hill South Ltd v Commissioner of Taxation (NSW) (1937) 56 CLR 337 at 375 Dixon J remarked of the connection necessary for State extraterritorial legislative competence that:
The relation may consist in the presence within the territory, residence, domicil, carrying on business there or even remoter connections. If a connection exists, it is for the legislature to decide how far it should go in the exercise of its powers.
45 That conclusion means that there are two statutes, the Child Protection Act and the NSW Act which apply in the same place and to the same person. The application of the NSW Act is theoretical in the sense that, though Brett was located in New South Wales during the period in question, there is no finding of a court having jurisdiction under that Act that he was then at risk of harm in New South Wales, much less is there any order in respect of him under the NSW Act.
46 Section 118 of The Constitution requires each State to give “full faith and credit” to the laws of another State. The Constitution also contains a provision, s 109, directed to the resolution of inconsistency between a Federal and a State statute with the former prevailing to the extent of any inconsistency. That provision has nothing to say about how to resolve inconsistency between the statutes of two States. Further, it is settled that principles derived from s 109 of The Constitution and the resolution of inconsistencies between legislatures of different hierarchy (repugnancy between Commonwealth and State or colonial and Imperial statutes) have no application to the resolution of inconsistencies between legislatures of concurrent power: Sweedman v Accident Transport Commission (2006) 226 CLR 362 at [47] to [48]. Thus, the difficulty presented by the present case is not to be resolved by a conclusion, which might be said to flow from the breadth of application of the NSW Act, having regard to s 4 of that Act, that it was intended to “cover the field” in that State on the subject of child protection, leaving no room for an otherwise valid extraterritorial application of Queensland’s Child Protection Act with respect to Brett.
47 In his work, Carney G, The Constitutional Systems of the Australian States and Territories (Cambridge University Press, 2006) at pp 248-251, Professor Carney, latterly Dean of Law at the University of Queensland, very helpfully collects, by reference to obiter dicta on the subject over the years, a number of possible means of resolving questions as to paramountcy of application in respect of the statutes of two or more States which purport to apply to the same subject in the same place.
48 One such means would be to afford paramountcy to the law of the State with the strongest territorial connection with the subject. Professor Carney (at p 249) opines that strength of territorial connection is a means of resolving questions of paramountcy between a plurality of laws of different States, each of purported application might be said to be a necessary implication from s 106 and s 107 of The Constitution. Subject to The Constitution, these provisions preserve the constitutions of the States and the powers of their parliaments. Broad though the conferrals of State legislative power are, they remain conferrals to make laws for the peace, welfare and good government of a defined locale. Nothing in s 2(1) of the Australia Acts has removed that limitation. Even accepting that this territorial limitation on the grant of legislative power does not prevent the valid enactment of laws having extraterritorial application, the requirement for that application is a real connection with the State concerned. In respect of States whose parliaments may each co-equally legislate in this way it might be said to be a necessary implication from s 106 and s 107 of The Constitution that, in case of any inconsistency the law of the State with the greater territorial connection will prevail. Such an implication is, in my view, a logical corollary of what is preserved by these provisions of The Constitution.
49 There is certainly support to be found for the proposition that relative strength of territorial connection is a means of resolving conflicts of application, but the implication that this is a permissible means of resolution has sometimes been sourced to s 118, rather than just to s 106 and s 107 (and even s 108) of The Constitution. In the State Authorities Superannuation Board Case, McHugh and Gummow JJ cited (189 CLR at 286) with apparent approval the following extra-judicial observations made by Sir Owen Dixon in “Sources of Legal Authority” in Jesting Pilate (1965) 198 at 201:
The colonies were and the States are distinct jurisdictions and the enactments of their legislatures are confined in their territorial operation because a State is a fragment of the whole. In other States the recognition of its statutes depends upon the general common law principles governing the extra-territorial recognition and enforcement of rights, as affected by the full faith and credit clause.
[Emphasis added by McHugh and Gummow JJ]
It was immediately after citing these observations that McHugh and Gummow JJ made their observation, referred to above, that subsequent recognition of the full scope for State extraterritorial legislation increased the potential scope of the problem in Australia.
50 In Breavington v Godleman (1988) 169 CLR 41 (Breavington v Godleman) Deane J also derived such an implication from s 118, as well as ss 106, 107 and 108 of The Constitution and the recollection that, at the time when The Constitution was framed, there were narrower conceptions of extraterritorial legislative competence of the then Australian colonies. Referring to the subsequent recognition of the full scope for State extraterritorial legislative competence, his Honour stated (at 129):
That subsequent recognition cannot, however, reverse the historical fact that the Constitution was framed in the context of the traditional view that colonial (and State) legislative powers were confined by strict territorial limitations which precluded the extraterritorial operation of laws. Viewed in that traditional context, the constitutional solution of competition and inconsistency between purported laws of different States as part of the national law must, where the necessary nexus for prima facie validity exists, be found either in the territorial confinement of their application or, in the case of multi-State circumstances, in the determination of predominant territorial nexus. That would have been the position under the provisions of the Constitution (in particular, ss. 106, 107 and 108) even if those provisions had not included s. 118. The presence of s. 118 serves to make that position plain.
After considering the background to s 118, including its United States analogue and surveying authorities to date concerning s 118, Deane J opined (at 136):
There are several consequences which flow from the conclusion that, under the Constitution, the reconciliation of competing laws of different States is ordinarily to be found in the prima facie paramount (as between the States) competence of each State Parliament to make laws for its territory and in the obligation to accord full faith and credit to the laws and Acts of other States made within their legislative competence. The first flows from the fact that a legal system can operate by silence in the sense that the criterion of the lawfulness of conduct will commonly be that there is nothing in either the common law or statute law which renders it wrongful. That being so, a law of one State which purports to attach legal liability for conduct and consequences which are wholly within the territory of another State will, in the absence of some relevant overriding territorial nexus, infringe the injunction of s. 118 of the Constitution regardless of whether the law of the other State expressly deals with that conduct or its consequences in a different fashion or simply treats that conduct as not giving rise to legal liability by saying nothing about it. That is not to say that an act or area of activity which involves aspects connected with different States must be assigned exclusively to the area of legislative competence of either one of them.
Later, in McKain v RW Miller & Co (South Australia) Pty Ltd (1991) 174 CLR 1 at 46, Deane J allowed that the resolution of conflicts of application of the laws of differing States may “at least in a borderline case, involve a weighing process in which considerations of the requirements of justice may well be relevant in the comparative assessment of competing factors”.
51 Support for the proposition that strength of territorial connection is a permissible means of conflict of application resolution is also to be found in Port MacDonnell Professional Fishermen’s Association Inc v South Australia (1989) 168 CLR 340 at 374 and Brownlie v State Pollution Control Commission (1992) 27 NSWLR 78 at 87.
52 Professor Carney opines (at p 250) that, “Reliance upon the predominant territorial nexus does lead to uncertainty.” I respectfully agree. Professor Carney aptly supports his opinion by reference to a statement made by Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ in John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 at [78] in relation to theories for the ascertainment of the proper law of a tort. Their Honours stated:
A rule which requires or permits courts to choose, as the governing law, the law of the jurisdiction having the most significant connections with the parties or events, leads to difficulties in practice.
They illustrated this by referring with approval to views expressed by Sir Otto Kahn-Freund, Professor of Comparative Law, University of Oxford, “Delictual Liability and the Conflict of Laws”, (1968) II Recueil des Cours 5 at 36:
There is no ultimate distinction between a connecting factor which is ‘significant’ and one which is ‘accidental’. This is a matter of impression, of feelings, one might almost say an aesthetic matter which defies rational argument for or against. A discussion of the virtues of connecting factors such as ‘place of act’, ‘place of injury’, ‘common domicil or residence or nationality of parties’, etc, is possible, but not in terms of deductive reasoning. There are only two methods of argument open to those who participate in such debates: one is the argument of tradition, the other is the argument of expediency.
53 As the above factual analysis demonstrates, in the present case, too, a discussion of the “virtues of connecting factors” is possible. Brett’s domicile and predictive residence are one thing but why should a Queensland law be treated as authorising what would otherwise be illegal in New South Wales, unless the authorities in that State, under a law (the NSW Act) expressly applicable to Brett by virtue of his presence in New South Wales, had moved to supplant the authority which his parent’s had while in that State for his care? Especially that is so when the NSW Act (Ch 14A) makes provision for the transfer to participating States of child protection orders and proceedings under that Act. After all, it is to the NSW parliament that constitutional legislative competency for the geographic territory of that State has been expressly consigned. As noted, the orders were made in Queensland ex parte, as the Child Protection Act permitted. No further Queensland connection is therefore supplied by the service in Queensland upon Brett’s parents of the initiating application. The present, truly, is an example of a kind of case which, in Breavington v Godleman (169 CLR at 136), in the passage quoted above, Deane J allowed might exist, ie one which concerns “an act or area of activity which involves aspects connected with different States”. Having regard to the extent of State extraterritorial legislative competence, his Honour’s concession (169 CLR at 136) that there was no constitutional requirement that the laws of each State touching upon that act or activity “must be assigned exclusively to the area of legislative competence of either one of them” is surely correct. Yet how are such laws to be reconciled so as to give certainty to those nominally bound by each?
54 To resort, ultimately, to expediency as a justification for treating as lawful the actions of officers of an executive government beyond territorial borders has an undeniable and powerful attraction where the prospect of harm to an infant is concerned but such a justification is not one generally to be encouraged in peacetime. That sort of justification is better adapted to times of conflict and to the doctrine of military necessity under international humanitarian law (as to which, see Ryuichi Shimoda v. The State, Tokyo District Court, 7 December 1963, reported, International Law Reports, Vol. 32, 1964, p.626).
55 A more jurisprudentially appropriate solution, well grounded by his Honour in persuasive but not binding authority, was offered by Kirby J in BHP Billiton Ltd v Schultz & Ors (2004) 221 CLR 400 at [144] (BHP Billiton v Schultz), where his Honour opined:
State laws may be construed as liberally as judges decide. Those judges may reserve the intervention of the courts to cases of real, and not merely theoretical, conflict of laws. Courts may withhold invalidation to clear cases. Such cases will include impermissible attempts to afford extra-territorial operation of a State law, involving an unavoidable clash between the intended scope of the respective laws of different States or a clearly demonstrated instance of operational inconsistency. However, ultimately a point will be reached where the conflict between the laws of different States has to be resolved. When that happens, the guiding star will be found principally in the "territorial limitation" marked out by the geographical boundaries of the several States on the map of Australia. Short of the resolution of an unavoidable conflict of this kind, this Court will not pronounce the invalidity of a State's law. If the law can be construed (read down) so as to avoid such a conflict, the necessity of constitutional resolution of the apparent inconsistency disappear.
[Footnote references omitted]
On this basis, unless there is an unavoidable conflict between the laws of two States, a court will not pronounce on which is paramount and thus of valid application in particular circumstances. In the absence of such conflict and in the presence of a relevant connection to sustain extraterritorial legislative competency, extraterritorial effect will be given to a State law purporting to have that effect.
56 It was just such an approach which the Queensland Attorney submitted should be followed in the present case. Here, he submitted, there was no operational inconsistency. There was no order in force in respect of Brett under the NSW Act, much less one which was irreconcilable with the Queensland temporary assessment orders. A real Queensland connection sufficient otherwise to support the extraterritorial operation of the Child Protection Act and orders made under it in respect of Brett did exist. Brett, as noted above, was both domiciled and putatively resident in Queensland. The application of the NSW Act to Brett was entirely theoretical. In these circumstances, the temporary assessment orders had valid application to Brett. Accepting as I do the solution offered by BHP Billiton v Schultz, I regard the Queensland Attorney’s submission as correct. Only if there had existed at the time conflicting orders under the NSW Act would the Queensland temporary assessment orders be invalid. They would be invalid because they would be inconsistent with orders authorised by an enactment of a legislature with a stronger territorial connection during the period in question, which had expressly and permissibly provided that a child’s presence in that State was enough to ground an order which had in fact been made.
57 It follows that the temporary assessment orders were valid and that, pursuant to s 118 of The Constitution, full faith and credit had to be given to them in New South Wales. The effect of those orders during the period in question was to pass legal responsibility for Brett’s care from Ms Billington and her partner to the chief executive. Ms Billington did care for her son during this period but only under the supervision directed by the chief executive.
58 The consequence is that Ms Billington did not meet the eligibility criteria under the Family Assistance Act for the payment of baby bonus after 31 March 2011. It follows that the tribunal’s decision was correct.
59 The question of law raised was one of general importance and the arguments in respect of the validity of the temporary assessment orders were by no means all one way. For these reasons, I grant Ms Billington an extension to 3 September 2012 within which to file a notice of appeal, deem the draft notice appended to her application to be a notice of appeal filed on that date but dismiss the appeal.
60 It will be necessary to hear from the parties as to costs.
An addendum in respect of an issue of Practice, Procedure and Ethics
61 It is necessary to make reference to an issue of practice, procedure and ethics which arose at the outset of the hearing of the appeal. Immediately before coming in to court, I was informed by my then associate that, to his considerable embarrassment and unexpectedly, his girlfriend, who was a solicitor employed at the firm of solicitors then acting for the Secretary and who had hitherto had no association with the matter, was in court to instruct counsel on behalf of the Secretary. I forthwith had the appeal called on, explained what had occurred to Ms Billington and to counsel for the Secretary (who had hitherto been unaware of any connection) and stood the appeal down for a short time so as to have the young lady’s supervising partner attend to instruct in her place and to provide by affidavit an explanation as to how the event had occurred. It transpired that the solicitor within the firm with the usual carriage of the matter had a matter elsewhere in another court listed for the same time. The connection as between the young lady and my associate was known to the partner but “inadvertently overlooked” by him in the press of time in finding a substitute to instruct counsel.
62 There was no connection between the person constituting the Court for the purpose of the appeal and the solicitor in question. Axiomatically, the determination of the appeal was a matter for me, not for my associate. The question for determination on the appeal was one of law and there was and could not be in a case such as this a jury to direct. As I opined at the time, there could be no question in law of a case of apprehended bias arising. Nonetheless, especially in circumstances where the opposing party was self-represented, this type of event should not have occurred. Such associations can give rise to misconceptions and are, for that reason, prudently avoided. It is to be hoped that such inadvertence as occurred in this matter is not repeated in others.
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I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. |
Associate:
