FEDERAL COURT OF AUSTRALIA

“X” v The Minister for Immigration & Multicultural Affairs [1999] FCA 995

MIGRATION – non-citizen child - proceedings against a guardian under the Immigration (Guardianship of Children) Act 1946 (Cth) – whether proceedings may be commenced without a tutor – scope of guardianship obligations under s 6 of the Immigration (Guardianship of Children) Act 1946 (Cth) – meaning of “guardian”

PRACTICE AND PROCEDURE – whether a tutor is required for proceedings commenced by a minor- scope of s 39B(1A)(c) of the Judiciary Act 1903 (Cth) - Federal Court Rules  O 43  r 1(1), r 4(3)

STATUTORY INTERPRETATION – relevance of extrinsic material – context and purpose of statute - whether reference may be made to international instruments ratified after legislation enacted - Immigration (Guardianship of Children Act) 1946 (Cth) s 6

STATUTES – common law – adaptation of common law to statute– analogical use of statute - Family Law Act 1975 (Cth) s 43(c), s 65C, s 66F, s 68L - Family Law Rules O 23 r 3

WORDS AND PHRASES – “guardian”

Immigration (Guardianship of Children) Act 1946 (Cth) s 4AAA, s 6

Judiciary Act 1903 (Cth) s 39B(1A)(c)

Federal Court Rules  O 43  r 1(1), r 4(3)

Declaration of the Rights of the Child (1924)

Universal Declaration of Human Rights (1948)

International Covenant on Civil and Political Rights (United Nations, 1966) (Entered into force generally: 23 March 1976; ATS 1980 No 3)

International Covenant on Economic Social and Cultural Rights (United Nations, 1966) Entered into force 3 generally: January 1976; ATS 1976 No 5).

Convention on the Rights of the Child (1989) (Entered into force generally: 2 September 1990; ATS 1991 No 4)

Human Rights and Equal Opportunity Commission Act 1986 (Cth) s 11(1)

Family Law Act 1975 (Cth) s 43(c), s 65C, s 66F, s 68L

Family Law Rules, O 23 r 3

Re Application of Mr and Mrs K (1995) 128 ALR 562 at 564-8 applied

Myers v Nominal Defendant [1966] 1 NSWR 659 at 666-668 considered

McNamara v Bodkin and Others (1960) 1 FLR 351 cited

Haines v Leves (1987) 8 NSWLR 442 at 449-451, 463 applied

Minister of State for Immigration & Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR 273 at 287-288 applied

B v B (1997) FLC ¶92-755 considered

Re S (A Minor) (Independent Representation) [1993] 2 FCR 1 (CA) cited

Re T (A Minor) (Independent Representation) [1993] 2 FCR 445 (CA) cited

Dey v Victorian Railway Commissioner (1949) 78 CLR 62 at 83, 100 cited

Mabo v Queensland (No 2) (1992) 175 CLR 1 at 42 cited

Dietrich v the Queen (1992) 177 CLR 292 cited

Esso Australia Resources Ltd v The Commissioner of Taxation for the Commonwealth of Australia 83 FCR 511 applied

Warnink v J Townend & Sons (Hull) Ltd [1979] AC 731 at 743 cited

Moragne v States Marine Lines Inc (1969) 398 US 375 cited

Reg v Gyngall [1893] 2 QB 232 at 241 cited

Secretary, Department of Health and Community Services v JWB and SMB (Marion’s Case) (1992) 175 CLR 218 at 280 cited

“X” v THE MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS and THE SECRETARY OF THE DEPARTMENT OF HUMAN SERVICES FOR THE STATE OF VICTORIA

“Y” v THE MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS and THE SECRETARY OF THE DEPARTMENT OF HUMAN SERVICES FOR THE STATE OF VICTORIA

NORTH J

23 JULY 1999

MELBOURNE

THE COURT ORDERS THAT:

1.                  The motion, notice of which was filed by the first respondent on 1 October 1998 is dismissed. 

2.         The respondents pay the applicant’s costs of and incidental to the said motion.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

THE COURT ORDERS THAT:

1.         The motion, notice of which was filed by the first respondent on 1 October 1998, is dismissed. 

2.         The respondents pay the applicant’s costs of and incidental to the said motion.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

and

REASONS FOR JUDGMENT

1                     The issue before the Court is whether the applicants are entitled to continue these proceedings without the appointment of a tutor or next friend (which terms are used interchangeably in these reasons). 

            BACKGROUND

2                     The applicants “X” and “Y” were both under eighteen years of age when they commenced these proceedings.  I will return to the question of their precise ages later in these reasons.  They were both born in Kenya and arrived in Australia on 17 April 1998 as stowaways on a ship.  The applications have been dealt with together since inception as they raise substantially the same issues.  They have been argued together and it is appropriate that these reasons address them together.

3                     On 7 May 1998 each of the applicants applied for a protection visa.  A delegate of the first respondent, the Minister for Immigration and Multicultural Affairs (the Minister), refused the applications.  On 17 July 1998 the Refugee Review Tribunal (the Tribunal) upheld the delegate’s decision in each case.  On 21 July 1998 the decisions of the Tribunal were communicated to the applicants. 

4                     On 3 August 1998 the applicants were placed on an aircraft operated by Singapore Airlines bound for Singapore.  At this time the period within which each applicant could seek a review of the decision of the Tribunal had not yet expired.  Each of the applicants desired to seek such a review.  On 3 August 1998 urgent applications were made to the Court on behalf of the applicants to prevent the departure of the aircraft to Singapore so that they could disembark and pursue the proposed reviews.  At the same time, two applications were filed in the Court and designated VG 366 of 1998 and VG 367 of 1998 each seeking a review of the decision of the Tribunal relating to each applicant (the review applications).  At about 2:00 pm on 3 August 1998 orders were made that the applicants not be removed from Australia and that the first respondent and Singapore Airlines take all steps necessary to give effect to the order.  It seems that at the time the order was made the aircraft was on the tarmac at Tullamarine Airport preparing to take off.  For reasons which have not yet been determined by the Court, despite the existence of the order the aircraft took off with the applicants aboard. 

5                     Shortly afterwards an order was made against Singapore Airlines requiring the aircraft to land in Australia so that the applicants could disembark.  Singapore Airlines was given liberty to apply by 5:00 pm to discharge the order.  It did so apply, and discussions between the parties resulted in undertakings to the Court that the aircraft would proceed to Singapore but that Singapore Airlines would return the applicants to Australia, and the first respondent would take the necessary legal steps to allow for their return.  As a result of the undertakings the applicants were returned to Australia.  Because the visas granted to the applicants for the purpose of their return to Australia expired before the aircraft landed in Australia, the applicants were taken into immigration detention upon return. 

6                     On 19 August 1998 each applicant filed a notice of motion (the motions for contempt) in his review proceeding alleging that the circumstances of his removal from Australia and return into detention were in breach of the orders made on 3 August 1998, and amounted to contempts of Court. 

THE GUARDIANSHIP APPLICATIONS

7                     On 15 September 1998 each applicant commenced a further proceeding (the guardianship applications) seeking orders, inter alia, requiring the first respondent to release him from detention and to make arrangements for his care and welfare in the community.  Discussions between the parties resulted in the applicants being released from detention.  As the applicants no longer required orders for release from detention, each filed an amended application on 6 November 1998. 

8                     The guardianship applications rely at least in part on s 6 of the Immigration (Guardianship of Children) Act 1946 (Cth) (the Act) which provides:

The Minister shall be the guardian of the person, and of the estate in Australia, of every non-citizen child who arrives in Australia after the commencement of this Act to the exclusion of the father and mother and every other guardian of the child, and shall have, as guardian, the same rights, powers, duties, obligations and liabilities as a natural guardian of the child would have, until the child reaches the age of 18 years or leaves Australia permanently, or until the provisions of this Act cease to apply to and in relation to the child, whichever first happens.

9                     The phrase “non-citizen child” is relevantly defined in s 4AAA as:

(1)       Subject to subsections (2) and (3), a person (the “child”) is a non-citizen child if the child:

(a)                has not turned 18; and

(b)                enters Australia as a non-citizen; and

(c)                intends, or is intended, to become a permanent resident of Australia.

(2)              Subsection (1) does not apply if the child enters Australia in the charge of, or for the purposes of living in Australia under the care of:

(a)                a parent of the child; or

(b)                a relative of the child who has turned 21; or

(c)                an intending adoptive parent of the child.

(3)              Subsection (1) does not apply if:

(a)                the child enters Australia in the charge of, or for the purposes of living in Australia under the care of, a person who is not less than 21 years of age (the “adult”); and

(b)                a prescribed adoption class visa is in force in relation to the child when the child enters Australia; and

(c)                the adult intends to reside with the child in a declared State or Territory.

10                  The applicants contended that the jurisdiction of the Court to enforce any obligations imposed by s 6 is conferred by s 39B(1A)(c) of the Judiciary Act 1903 (Cth) which provides:

(1A)     The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter:

            …

(c)    arising under any laws made by the Parliament.

11                  The applicants each seek, inter alia, declarations and orders as follows:

“Declarations:

…

3.         That the duties, obligations and liabilities of the first respondent and or alternatively the second respondent as guardian during the period of guardianship include:

(a)               the provision and funding of accommodation for the applicant;

(b)               the provision and funding of all reasonable expenses in relation to the education of the applicant in a Victorian Secondary school;

(c)                the provision and funding of all educational, sporting and other materials which are reasonably required by the applicant in order to participate in educational activities at a Victorian secondary school;

(d)               the provision and funding of all reasonable health and medical services;

(e)                an obligation to provide such funding as may be necessary to ensure that the applicant can live within the Australian community during the period of the guardianship.

4.                  That the first respondent has a duty to consider and determine independently of any entitlement to a protection visa whether it is in the best interests of the applicant to be involuntarily returned to Kenya.

Order

5.                  That the first respondent and or alternatively the second respondent pay to the applicant an allowance equal to the sum of money which the applicant would receive were he to be eligible for payment under the Asylum Seeker’s Assistance Scheme.

6.                  Alternatively that the first respondent and or alternatively the second respondent pay to the applicant a weekly allowance.

7.                  That the first respondent or alternatively the second respondent reimburse to the applicant any amount paid by the applicant or by any person on behalf of the applicant in respect to expenditure the liability for which rests with the first and or second respondent.

8.                  That the first respondent or alternatively the second respondent insure and keep insured the applicant in respect of all medical treatment that the applicant might reasonably require.

9.                  That the first respondent or alternatively the second respondent reimburse to the applicant any amount paid by the applicant or any person on behalf of the applicant on account of medical insurance since the applicant’s first arrival in Australia.

10.              That the first respondent consider and determine in accordance with law whether it is in the best interest of the applicant to be involuntarily returned to Kenya.

11.              That the first respondent grant such visa as is necessary to permit the applicant to enter and remain in Australia for so long as it is in the best interests of the applicant.”

            THE ABSENCE OF A TUTOR

12                  The review applications, the motions for contempt and the guardianship applications were each commenced without the appointment of a tutor.

13                  It was common ground that s 6 of the Act operated to make the first respondent the guardian of the applicants.  This was clearly correct: Re Application of Mr and Mrs K (1995) 128 ALR 562 at 564-8.  He could not act as tutor because, as a party on the opposite side of the record, he had an interest adverse to the applicants: Federal Court Rules  O 43 r 4(3).

14                  Under s 5 of the Act the first respondent was entitled to delegate his powers and functions.  That section relevantly provides:

(1)       The Minister may, in relation to…any non-citizen child or class of non-citizen children, by writing under his hand, delegate to any officer … of any State … all or any of his powers and functions under this Act (except this power of delegation) so that the delegated powers and functions may be exercised by the delegate with respect to…the child or class of children, specified in the instrument of delegation.

            …

            (2)        A delegation under this section shall be revocable at will, and no delegation shall prevent the exercise of any power or function by the Minister.

15                  By an instrument of delegation dated 25 June 1998 the first respondent delegated his powers generally in circumstances such as arise in the present case to the second respondent, the Secretary of the Department of Human Services for the State of Victoria. 

16                  On 14 September 1998 the second respondent wrote to the solicitors for the applicants as follows:

“I also confirm my advice to you that the Department of Human Services is unable to act as tutor for X and Y.  The basis for this is that, as the Secretary of the Department is guardian of the boys pursuant to a delegation under the Immigration (Guardianship of Children) Act, the Secretary is effectively in the place of the Minister and therefore shares the conflict that the Minister has in relation to performing the role of tutor.”

17                  The following day, 15 September 1998, the applicants filed the guardianship applications described above.  It might be thought that a guardian who is excluded from acting as tutor is nonetheless bound to take steps to seek out a person to act as tutor.  However, the applicants did not contend for such an obligation on the respondents.

            THE OFFER OF MR KIJAGULU

18                  The applicants have not been able to arrange for a person who is prepared to accept the responsibility for costs involved in appointment as a tutor.  However, Mr Austin Kijagulu has offered to act as tutor for each applicant on condition that he is absolved from the liability for any costs order.  He is an Australian resident of Kenyan origin who speaks Swahili, the language spoken by the applicants.  Mr Kijagulu began visiting the applicants in detention and developed a relationship with them.  He saw them regularly and took an active interest in their welfare.  He is prepared to act as tutor because the applicants have no connections of any kind in Australia and rely on him for support as a Kenyan adult with whom they have developed a close relationship.  However, Mr Kijagulu is a lecturer at City College and is responsible for the support of his wife and very young baby.  His financial position precludes him from undertaking the responsibility for costs that would ordinarily attach to the position of tutor.

            THE NOTICES OF MOTION

19                  On 28 August 1998 the first respondent filed notices of motion seeking orders that the review applications and the motions for contempt be dismissed on the ground that the applicants, each being a minor, had not instituted the proceedings by a tutor, or alternatively, that a tutor be appointed within a specified time and in default of appointment the proceedings be dismissed. 

20                  The first respondent does not press the notices of motion in relation to the review applications.  He is content to allow the review applications to proceed without the appointment of a tutor.  He does however, press the notices of motion in relation to the motions for contempt. 

21                  On 30 October 1998 the first respondent filed notices of motion seeking orders that the guardianship applications be dismissed on the ground that each of the applicants, being a minor, had not instituted the proceedings by a tutor or alternatively, that a tutor be appointed within a specified time and in default of appointment the proceedings be dismissed.

22                  Both the review applications and paragraphs 4, 10 and 11 of each of the guardianship applications, which are set out earlier in these reasons, raise the common question whether the applicants are entitled to stay in Australia, although the claim has a different basis in the review applications and the guardianship applications.  Consequently, on 30 October 1998 I ordered that the review applications and the guardianship applications be heard together.  It is necessary for all of those matters to be heard as quickly as possible in order to finalise the status of the applicants.  The same need for expedition does not apply to the contempt applications because they do not affect the status or welfare of the applicants.  As the requirement for a tutor may raise different questions according to the nature of the proceedings involved, in these reasons I deal only with the first respondent’s motions in the guardianship applications.  

REASONING

23                  O 43 r 1(1) of the Federal Court Rules provides that an infant or minor may sue by his or her next friend.  This rule does not itself impose a requirement on a minor to sue by a next friend.  It exists to facilitate any such requirement for the appointment of a tutor that may exist pursuant to statute or at common law.  Whether any such requirement exists is the question to be addressed now.

24                  The second respondent adopted the arguments of the first respondent generally.  I will therefore refer to the arguments hereafter as the arguments of the respondents.

25                  The respondents submitted that there was a general rule that infants could not take proceedings in Court without the appointment of a tutor.  They relied upon Myers v Nominal Defendant [1966] 1 NSWR 659 in which Isaacs J said at 668:

“It is abundantly clear from these authorities that the common law position always has been and still is that an infant cannot make any application to a court without the intervention of a next friend.  In Dey v. Victorian Railway Commissioners (1949), 78 C.L.R. 62, Latham, C.J., at p. 83, said:  ‘An infant cannot give authority to institute proceedings so as to bind himself and that is one of the reasons why a next friend is required’, and at p. 100, Dixon J., said:  ‘The infants are under a disability depriving them of the power of employing an attorney or other agent.’”

26                  One of the authorities referred to by Isaacs J was McNamara v Bodkin and Others (1960) 1 FLR 351.  In that case the Commonwealth Industrial Court had to determine whether the right conferred on a union member to file a complaint that union rules were not being observed and performed under s 141 of the Conciliation and Arbitration Act 1904-1959 (Cth) permitted a minor to file a complaint without the intervention of a next friend.  Spicer CJ and Morgan J said at 352:

“It is, of course, common knowledge that many members of organizations are under age and it was said that the legislature must have intended that they should have the same rights in this regard as adult members.

We do not think that this fact alone provides justification for a conclusion that the legislature by this provision intended to overrule the well known general rule of law that an infant cannot sue in his own name without the joinder of a next friend.”

27                  Whether the common law rule is as general as stated in these passages is a matter to which I will return later in these reasons. 

Construction of Section 6

28                  It is undoubted that a jurisdiction conferred by statute may expressly or by implication indicate that proceedings may be taken by persons under eighteen years of age without the intervention of a tutor.  In Haines v Leves (1987) 8 NSWLR 442 the New South Wales Court of Appeal discussed the approach to the question whether a statutory scheme permitting persons under eighteen years of age to take proceedings required the appointment of a next friend.

29                  The issue was whether a student under eighteen could file a complaint of sex discrimination with the Equal Opportunity Tribunal under the Anti-Discrimination Act 1977 (NSW) without the intervention of a next friend.  The Court of Appeal held that a next friend was not required.  The discussion of the issue is comprehensive and warrants quotation in full although the passage is lengthy.  Street CJ (with whom Samuels JA agreed on this issue) said at 449-451:

“Limitations on the capacity of infants have long been part of the common law.  Where the capacity in question involves the right to sue or the liability to be sued the common law required as a matter of procedure the appointment of a guardian ad litem (11 Co on Litt s 201, at 135b).  The ancient statutes of Westminster I and Westminster II enabled a next friend to sue for an infant.  This requirement of participation by a guardian ad litem or a next friend where an infant is involved in civil proceedings has subsisted down through the centuries: Chitty’s (Archbold’s) Practice, 12th ed (1866) at 1240 and 1244. 

In its current form in this State it is stated, so far as the Supreme Court is concerned, in the Supreme Court Rules 1970, Pt 63.

It is important to recognise that this limitation on the capacity of infants did not extend to matters of substantive entitlement or of substantive liability on the part of infants.  It is well settled that at common law an infant can sue and be sued:  Dicey on Parties to an Action (1870) at 2; Halsbury’s Laws of England, 4th ed, vol 24, par 8961 at 481.  The limitation on capacity is entirely procedural and is confined to participation by an infant on one or other side of the record in civil proceedings before a court.  It is a limitation ordinarily to be found expressed in rules of court or regulations.

Lest this be thought to be too far-reaching a generalisation, a moment’s reflection on the position of an infant in the eyes of the criminal courts will dispel any lingering doubts.  In the criminal field it is commonplace for an infant accused person to participate by directly instructing solicitors and counsel.  Likewise on appeal it is commonplace for an appeal to be instituted by an infant personally and be carried through at the appellate hearing by the infant directly instructing solicitors and counsel or even at times by the infant appearing personally without legal representation.

There is passing reference in the judgments of the High Court to the position of solicitors instructed by an infant in the recent decision of J v Lieschke (1987) 61 ALJR 143; 69 ALR 647.  That case concerned essentially the right of the parents of a child to be represented in proceedings in a Children’s Court in connection with a complaint that the child was a ‘neglected child’ as defined in the Child Welfare Act 1939, s 72.  The High Court was unanimous in upholding the right of the parents as a matter of natural justice to appear and be heard in opposition to the making of an order.

In the judgment of Brennan J with whom Mason, Deane and Dawson JJ agreed, his Honour said (at 146; 651-652):

            ‘It seems that under some arrangement, familiar to those who practise in the court, children who are brought before the court as neglected children are represented by solicitors who attend the court to provide that representation pursuant to arrangements made by legal aid agencies.  No doubt the arrangement is born out of an honourable recognition of the need of disadvantaged children for legal representation but it gives rise to problems relating to the acceptance of instructions to act professionally and the function and duty of a solicitor purporting to act for a child in non-criminal proceedings:  see (1977) 15 Law Society Journal of New South Wales 29.  In the absence of a guardian ad litem or a tutor appointed for the purpose, the parents or other guardians of a child have authority to appoint solicitors to act for the child in non-criminal proceedings, and instructions to act cannot be assumed by a solicitor if they are not forthcoming from a person with authority to give them . . . . it is difficult to perceive the source of legal authority for a solicitor to represent a child in non-criminal proceedings when no order has been made by a court of competent jurisdiction appointing some other person to give the necessary instructions.’

In a separate judgment in which he reached the same conclusion on the substantive point in the appeal, that is to say the right of the parents to appear, Wilson J made some observations upon the position of children as parties to statutory proceedings.  His Honour said in this regard (at 145; 649):

            ‘. . . Neglect proceedings are truly a creature of statute, neither civil nor criminal in nature.  They are therefore sui generis.  They do not attract the common law disability, now frequently embodied in rules of court, whereby infants may not institute or defend civil proceedings otherwise than by a next friend or guardian ad litem . . . . In a case where a parent has taken no steps to arrange for the child to be represented, I see no reason why a child having the capacity to do so should not avail himself or herself of the services of the duty solicitor.  The child will have that capacity if he or she is of sufficient intelligence and understanding to appreciate the circumstances and to make a rational judgment as to what his or her welfare requires.’

His Honour then referred to the situation in which a parent and a child might differ as to legal representation on a ‘neglected child’ complaint and continued (at 145; 649):

            ‘. . . The question would then be whether the right of the parent to arrange for the representation of the child operates to exclude any independent right in the child.  In former times, that question would undoubtedly have been answered in the affirmative.  However, that may no longer be so in a society which recognizes the growing autonomy of the child in areas where it has sufficient maturity and understanding to make decisions touching its own welfare:  see Gillick v West Norfolk AHA [1986] AC 112, particularly per Lord Scarman, at 184.’

Although at first sight the views of Brennan J appear to differ from the views of Wilson J, the reconciliation lies in recognising that Brennan J is referring to non-criminal proceedings, whereas Wilson J is directing his comments to proceedings that are ‘truly a creature of statute, neither civil nor criminal in nature’.

In such proceedings Wilson J accepted that an infant of sufficient understanding could instruct a solicitor personally.  Brennan J, although adverting to difficulty in perceiving the source of authority for a solicitor to act directly on the infant’s instructions, stopped short of characterising this difficulty as insuperable or absolute.

In the course of his reasons Wilson J referred to Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112.  In that case the House of Lords considered the difficult social question of the right of a girl under seventeen to be furnished with contraceptive advice by a National Health Service Family Planning Clinic without parental knowledge or consent.  In the course of his judgment, as one of the majority upholding such right, Lord Fraser said (at 171):

            “. . . the degree of parental control actually exercised over a particular child does in practice vary considerably according to his understanding and intelligence and it would, in my opinion, be unrealistic for the courts not to recognise these facts.  Social customs change, and the law ought to, and does in fact, have regard to such changes when they are of major importance.”

Differing views may well be held in the desirability of this trend of developing independence of young persons, who are infants at law, from the protective constraints of the past.  The trend is, however, manifest and such independence is to be recognised when considering whether there is any fetter to be placed upon an infant wishing to lodge a complaint with the President and to participate either in person or by solicitor on his or her own instructions before the Tribunal. 

I turn, then, to consider the operation of these considerations in the matter presently before the Court.  Section 88 confers in express terms a right on ‘a person on his own behalf’ to ‘lodge a complaint in writing with the President in respect of any contravention of this Act’.  On its face there is no reason to deny or fetter an infant in the immediate exercise of this statutory right.  This observation has particular force in that the Act expressly deals with unlawful discrimination by an educational authority (s 31 A).  Plainly enough the class of potential complainants of educational discrimination will be substantially constituted by infants.  There is, moreover, a compelling context for denying the existence of any procedural fetter upon an infant lodging a complaint pursuant to s 88(1): s 88(2) deals expressly with a complaint by an intellectually handicapped person being lodged on his behalf by another person; this essentially procedural provision is directed only to one class of the conventionally disabled classes which, under the Supreme Court Rules, Pt 63, require the appointment of a tutor.  This is a strong indication that the class constituted by infants is not to be fettered by any procedural barrier in approaching the President in person by lodging a complaint.  In my view there is no such fetter.  The terms of s 88(1) permitting the lodging of a complaint by ‘a person on his own behalf’ are to be given their ordinary and direct meaning.

The question then arises regarding the right of an infant complainant to participate in proceedings before the Tribunal.  There are clear indications in the Act that this right exists.  Section 100 expressly names as the parties to an inquiry ‘the complainant, the respondent, any person joined by the Tribunal as a party and any person to whom the Tribunal grants leave to appear as a party to the inquiry’.  No glimmer of any intention of fettering an infant complainant is to be discerned in this section.  But the matter does not end there.  Section 101(1) confers an express entitlement on a party to an inquiry ‘to appear personally’.  In the context that I have earlier mentioned, namely with infant complainants well in contemplation in the Act within the field of educational discrimination, one could hardly find a more direct statement of legislative intention.  The complainant, Melinda Leves, was in my view entitled as of right to appear in person before the Tribunal or, by its leave, to be represented by solicitor, counsel or agent (s 101(1)(b)). She was in fact represented by counsel before the Tribunal.”

30                  This passage relies both on the context of the statute in question and certain express provisions (ss 88, 100 and 101) to conclude that the intervention of a next friend was not necessary for a minor to bring a claim of sex discrimination.  Kirby P also concluded that a next friend was not necessary and his approach similarly relied upon the context of the statute and its purpose as well as the particular express provisions.  His reference to the context and purpose of the statute is instructive in the present case.  He said at 465:

“The question must therefore be faced whether that absence [of the right of a respondent to enforce an order for costs against an infant applicant] is totally to frustrate the statutory scheme which appears to envisage complaints by young persons or not.  The least violence is done to the legislative purpose by upholding the measures which have been enacted to forbid educational discrimination.  Otherwise in a procedure which is an inquiry and in an Act which envisages specific protection for, and complaint by, young persons, the whole beneficial purpose would be frustrated simply because of a procedural impediment or oversight of only occasional significance.”

31                  And at 466:

“Particularly in the case of alleged discrimination, and in a community with many different cultures, it is perfectly feasible that a young person may have a complaint to make about discrimination which does not attract the support of his or her parents.  Indeed, the parents may oppose the making and investigation of the complaint.  It would be to undermine and frustrate, and not to further, the purposes of this legislation to require, either at the door of the President’s office or at the door of the Tribunal, that a guardian, tutor or next friend should be a precondition to any inquiry.  The legislation should not be so frustrated.  Because of the general terms in which it is expressed, the special references to forms of discrimination of special relevance to young people and the specific provisions enacted in the one case which was deemed appropriate to require a representative, viz intellectual handicap, no such representative should be mandatory in the case of a complaint by a young person.  Least of all should the legislation be frustrated because of the isolated difficulty presented in some cases (although not so far in this) that the absence of an adult party will remove the possibility of effective control by the Tribunal over the investment of any damages awarded or the effective enforcement of an order for costs against the complainant.” 

32                  In the present case there is no express requirement in the Act for the appointment of a tutor.  However, the context and purpose of s 6 points strongly to the conclusion that Parliament did not intend that a non-citizen child seeking to enforce the obligations of the Minister as guardian necessarily requires the intervention of a tutor as a precondition to taking or continuing such legal action.  In the following paragraphs I address some of the relevant features of the statutory context and purpose which lead to this conclusion. 

The Nature of the Rights Sought to be Vindicated

33                  The legal concept of guardianship has long encompassed the full range of rights, powers and duties that can be exercised by an adult in respect of a child: Dickey Family Law (3rd Ed) (1997), 263.

34                  The guardian must therefore address the basic human needs of a child, that is to say, food, housing, health and education.  Over the course of this century, attention to these needs has come to be recognised as a fundamental human right of children, including in various international instruments to which Australia is a party.  

35                  The modern development of children’s rights is usefully set out in an article by Douglas Hodgson entitled “The Historical Development and “Internationalisation” of the Children’s Rights Movement” (1992) 6 Australian Journal of Family Law 252.  The development began in 1924 when the League of Nations approved the Declaration of the Rights of the Child (the Declaration of Geneva) which enunciated the following principles:

“I        THE CHILD must be given the means requisite for its normal development, both materially and spiritually;

II         THE CHILD that is hungry must be fed; the child that is sick must be nursed; the child that is backward must be helped; the delinquent child must be reclaimed; and the orphan and the waif must be sheltered and succoured.

III        THE CHILD must be first to receive relief in times of distress.

IV        THE CHILD must be put in a position to earn a livelihood and must be protected against every form of exploitation.

V         THE CHILD must be brought up in the consciousness that its talents must be devoted to the service of its fellow-men.”

36                  In 1946 the United Nations established UNICEF, the International Children’s Emergency Fund, which developed a broad program for the welfare of children in need.  The Universal Declaration of Human Rights adopted by the United Nations General Assembly in 1948 declared that “motherhood and childhood are entitled to special care and assistance…” (article 25(2)), and that children have a right to education (article 26).  On 20 November 1959 the General Assembly unanimously adopted the Declaration of the Rights of the Child (the 1959 Declaration).  This was the most important statement of the rights of the child since the Declaration of Geneva.  Ten principles were established as fundamental human rights including the following principles relevant to this case:

“Principle 2

The child shall enjoy special protection, and shall be given opportunities and facilities, by law and by other means, to enable him to develop physically, mentally, morally, spiritually and socially in a healthy and normal manner and in conditions of freedom and dignity.  In the enactment of laws for this purpose, the best interests of the child shall be the paramount consideration.

Principle 4

The child shall enjoy the benefits of social security.  He shall be entitled to grow and develop in health; to this end, special care and protection shall be provided both to him and to his mother, including adequate pre-natal and post-natal care.  The child shall have the right to adequate nutrition, housing, recreation and medical services.

Principle 7

The child is entitled to receive education, which shall be free and compulsory, at least in the elementary stages.  He shall be given an education which will promote his general culture and enable him, on a basis of equal opportunity, to develop his abilities, his individual judgment, and his sense of moral and social responsibility, and to become a useful member of society.

The best interests of the child shall be the guiding principle of those responsible for his education and guidance; that responsibility lies in the first place with his parents.

The child shall have full opportunity for play and recreation, which should be directed to the same purposes as education; society and the public authorities shall endeavour to promote the enjoyment of this right.”

37                  The translation of the Universal Declaration of Human Rights into enforceable obligations at international law was achieved by the adoption in 1966 of the International Covenant on Civil and Political Rights (Entered into force generally: 23 March 1976; ATS 1980 No 3) and the International Covenant on Economic Social and Cultural Rights (Entered into force 3 generally: January 1976; ATS 1976 No 5).  The former includes the right to equality before the law. 

38                  Thirty years after the 1959 Declaration the United Nations General Assembly adopted the Convention on the Rights of the Child (Entered into force generally: 2 September 1990; ATS 1991 No 4) on 20 November 1989 (the Convention).  Australia ratified the Convention on 17 December 1990 and it entered into force for Australia on 16 January 1991.  A provision of particular importance in this case is article 3(1) which provides:

“In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”

39                  Two other relevant provisions are article 12 and article 22(1).  They provide:

Article 12

1.  States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

2.  For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

Article 22

1.  States  Parties shall take appropriate measures to ensure that a child who is seeking refugee status or who is considered a refugee in accordance with applicable international or domestic law and procedures shall, whether unaccompanied or accompanied by his or her parents or by any other person, receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in the present Convention and in other international human rights or humanitarian instruments to which the said States are Parties.

40                  The Convention also provides for the substantive human rights including the right to health care (article 24), the right to education (article 28) and imposes the primary responsibility for the upbringing and development of the child on parents or legal guardians (article 18).  Parents and legal guardians are required to act in the best interests of the child.

41                  The rights to accommodation, food and education are essential and fundamental to the well-being, if not the very existence, of the child.  The Convention recognises that the rights must be implemented by according the best interests of the child a place of primary consideration in the making of decisions concerning children.  It also recognises that implementation will often require the State to devote community resources through direct funding and access to social security, to achieve the best interests of the child in relation to these needs.  Finally, the Convention recognises that children must be able to put forward their claims against the denial of such rights in administrative and legal proceedings.  In so doing they must be given a direct voice if they are capable of making it heard.

42                  The human rights recognised by the 1959 Declaration and the Convention have not been given the force of domestic law in Australia.  However, they have been recognised as establishing human rights under the Human Rights and Equal Opportunity Commission Act 1986 (Cth) by their inclusion in the definition of human rights under that Act (s 3).  Furthermore, the 1959 Declaration is specifically scheduled to that legislation.  As a result both international instruments are the subject of the functions of the Human Rights and Equal Opportunity Commission.  These functions are set out in s 11(1) of the Human Rights and Equal Opportunity Commission Act and relevantly include:

11.  (1)     The functions of the Commission are:

       …      (e)    to examine enactments, and (when requested to do so by the Minister) proposed enactments, for the purpose of ascertaining whether the enactments or proposed enactments, as the case may be, are, or would be, inconsistent with or contrary to any human right, and to report to the Minister the results of any such examination;

                (f)    to inquire into any act or practice that may be inconsistent with or contrary to any human right…;

                (g)   to promote an understanding and acceptance, and the public discussion, of human rights in Australia;…

                (j)    on its own initiative or when requested by the Minister, to report to the Minister as to the laws that should be made by the Parliament, or action that should be taken by the Commonwealth, on matters relating to human rights;

                (k)   on its own initiative or when requested by the Minister, to report to the Minister as to the action (if any) that, in the opinion of the Commission, needs to be taken by Australia in order to comply with the provisions of the Covenant, of the Declarations or of any relevant international instrument;

                (m)  on its own initiative or when requested by the Minister, to examine any relevant international instrument for the purpose of ascertaining whether there are any inconsistencies between that instrument and the Covenant, the Declarations or any other relevant international instrument, and to report to the Minister the results of any such examination;

43                  The responsibilities of a guardian under s 6 of the Act include the responsibilities which are the subject of the Convention.  They are responsibilities concerned with according fundamental human rights to children.  So much is recognised by the terms of the Human Rights and Equal Opportunity Commission Act previously referred to.  Once it is recognised that the rights with which s 6 is concerned are in the nature of fundamental human rights it becomes clear that Parliament intended that if a non-citizen child were denied any of these fundamental rights, they would have access to the legal system with the minimum of formal hurdles.  Without an express requirement for a tutor to be appointed it should be concluded that Parliament intended no such procedural impediment would necessarily stand in the applicants’ way. 

Urgency and the Need to Minimise Procedural Obstacles

44                  A complaint that a State guardian is failing to provide a non-citizen child with basic rights in breach of the obligations of a guardian may well involve urgency.  If basic necessities are denied to a non-citizen child, the rights of that child cannot remain unresolved without substantial prejudice.  A requirement to appoint a tutor is likely to cause delay in any proceedings brought to enforce such obligations.  Even greater delay may be involved if children must wait until they reach eighteen to begin proceedings.  Such delays are not likely to have been intended by Parliament.  The nature of the problems to be addressed by such proceedings will often require immediate attention to ensure that the child is properly cared and provided for.

The Isolated Position of the Applicant

45                  Children will not fall within the definition of non-citizen children unless they have arrived in Australia without parents or without adults to care for them in Australia: s 4AAA of the Act.  Such children are thus, characteristically, without adult support in Australia.  A requirement that they find adult support in order to enforce their legal rights to proper care is contrary to the purpose of s 6.  The section is plainly aimed at providing protection for the interests of children who are particularly alone, isolated and often in frightening circumstances.  Not only is this evident from the context of the section, but in the Minister’s Second Reading Speech relating to the introduction of s 4AAA in 1994 he explained that:

“Presently, the Act places certain non-citizen children entering Australia under the guardianship of the Minister for Immigration and Ethnic Affairs, principally these being children who enter Australia for adoption (including those children who have been adopted overseas but whose adoption is not recognised in Australia) and children who enter Australia as unaccompanied refugee minors.”  [emphasis added]

46                  The Minister’s explanation of the application of the section to unaccompanied refugee minors applies equally to the section after it was amended.  Being a non-citizen child will often mean that the applicant will have had no previous connection with Australia prior to entry.  The present case is a good example of this feature.  It is hard to imagine two persons less likely to be able to find a tutor than the applicants.  They have no connection with Australia.  This country chanced to be the place at which the ship on which they stowed away happened to stop.  The fact that the applicants do not speak English exacerbates their strangeness, and further increases their difficulty in finding a person to act as tutor.  That Mr Kijagulu has offered to do so is good fortune for the applicants and cannot be expected in the usual case. 

The Effect of the Convention on Section 6

47                  Finally, the effect of the Convention on the construction of s 6 of the Act should be considered.  Article 3(1) states:

“In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”

48                  This article contemplates that in every aspect of legal proceedings concerning children there will be a consideration of the best interests of the child.  It does not allow for inflexible rules which may or may not address the interests of the child in the particular case.  It therefore speaks against a fixed rule that a tutor must be appointed in every case.  Rather, it envisages a consideration of the question and determination having regard to the interests of the child.  The terms of article 3(1) do not permit an unalterable requirement for the intervention of a tutor in proceedings brought by children to enforce their fundamental human rights. 

49                  In Minister of State for Immigration & Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR 273 at 287, Mason CJ and Deane J said that “[i]f the language of the legislation is susceptible of a construction which is consistent with the terms of the international instrument and the obligations which it imposes on Australia, then that construction should prevail”.  This is despite the fact that a treaty may not necessarily have been given effect by specific legislation.

50                  Their Honours left open the question whether this approach applies when the legislation predates the international instrument.  It is difficult to see how pre-existing legislation can be construed in the light of a later ratified international instrument alone.  But where the international instrument was a product of an historical process of recognition of human rights, it may be that legislation enacted in the period of growing recognition of the rights should be construed consistently with the context of the development of those rights. 

51                  Section 6 was originally enacted in 1946, over twenty years after Australia had voted in favour of the Declaration of Geneva.  The recognition of the rights of the child had gathered considerable momentum thereafter as is evidenced by the adoption of the Universal Declaration of Human Rights in 1948.  Section 6 was thus originally enacted when the recognition of the rights of the child was advanced.  It should therefore be construed at least consistently with the recognition which those rights had achieved at the time of enactment.  Such an approach also speaks against a construction which involves procedural barriers against the enforcement of such of those rights as conferred by domestic law.

52                  This approach was adopted by the Full Court of the Family Court in B v B (1997) FLC ¶92-755.  The issue was whether s 43(c) of the Family Law Act 1975 (Cth) permitted the Family Court to have regard to the terms of the Convention.  Section 43(c) provided:

The Family Court shall, in the exercise of its jurisdiction under this Act, and any other court exercising jurisdiction under this Act shall, in the exercise of the jurisdiction, have regard to –

…

(c)        the need to protect the rights of children and to promote their welfare;

53                  The subsection was enacted in 1975, prior to the ratification of the Convention.  The Attorney-General for the Commonwealth submitted that the Court could not have regard to the Convention under the subsection because the Convention was ratified after the enactment of the subsection.  This argument was rejected.  The Court (Nicholson CJ, Fogarty and Lindenmayer JJ) said at paragraphs 10.11-10.20:

10.11  Firstly, while that Convention may not have existed at the time of the passage of the Act, the concept of the rights of children was well established and had been recognised by the 1959 UN Declaration of the Rights of the Child to which Australia acceded.  This Declaration had been preceded by the Declaration of Geneva adopted by the League of Nations in 1924.  The 1924 Declaration committed all members, of which Australia was one, to be guided by its principles.  In addition, as noted in the first paragraph of Australia’s Report Under the Convention on the Rights of the Child:-

            “1.  Successive Australian Governments have acknowledged the rights of children as fundamental human rights.  In 1981 this acknowledgment was made through the inclusion of the UN Declaration on the Rights of the Child 1959 as a Schedule to the Human Rights Commission Act 1981.  In 1986 this acknowledgment was re-affirmed by the inclusion of the Declaration as a Schedule to the legislation which replaced the 1981 Act, the Human Rights and Equal Opportunity Commission Act 1986.” (p 1).

10.12  Subsequent paragraphs of the Report explain Australia’s “active role” in drafting the Convention, the processes leading up to ratification and the then Attorney-General’s declaration of the Convention as a schedule to the Human Rights and Equal Opportunity Commission Act.  Significantly, the Report states:-

            “6.  Australia does not propose to implement the Convention on the Rights of the Child by enacting the Convention as domestic law.  The general approach taken in Australia to human rights and other conventions is to ensure that domestic legislation, policies and practice comply with the convention prior to ratification.” (p 2, emphasis added).

10.13  Against such a backdrop, it is hard to see how the Convention can be considered not to be relevant.

…

10.19  Fourthly, we consider that [the Convention] must be given special significance because it is an almost universally accepted human rights instrument and thus has much greater significance for the purposes of domestic law than does an ordinary bilateral or multilateral treaty not directed at such ends.  As put by Sir Anthony Mason in his address to the Second National Conference of the Family Court of Australia (1995):

            “True it is that a convention does not necessarily embody rules of  international law.  But the Convention on the Rights of the Child has attracted widespread international acceptance.  178 nations have acceded to it.  And why should the principle that the provisions of a ratified but unincorporated convention do not form part of the law of the land forbid judicial formulation of the common law by reference to the convention if it enjoys widespread acceptance, including acceptance by Australia.  The point of the principle is that it denies the status of domestic law to a provision in an unincorporated convention.  But the provision will achieve that status if it is incorporated into domestic law by statute.  And the provision may contribute to the development of a principle of domestic law if the judges draw upon it for that purpose.”  (International Law and its Relationship with Family Law Second National Conference Papers, (1995) p 18).

10.20  Fifthly, we adhere to the view expressed by Nicholson CJ and Fogarty J in Murray’s case and supported by the view  expressed by Einfeld J in Magno’s case, that the fact that this Convention is expressed as a schedule to the Human Rights and Equal Opportunity Commission Act may give it a special significance in Australian law.

            Conclusion

54                  Thus, the context and purpose of s 6 of the Act demonstrates that a non-citizen child seeking to enforce the duties of a guardian is not necessarily required to sue by a tutor.  Rather the context and purpose of the section indicates that the intervention of a tutor is only required after a Court has been asked to do and does determine that such intervention is necessary in the best interests of the child.  This result is not surprising.  Not only is Haines an example of a statutory provision permitting a minor to sue without a tutor, but in a number of jurisdictions children now have the capacity to sue in their own right.  This is particularly the case where their welfare is directly in issue.  For instance in England r 9.2A of the Family Proceedings Rules allows children to begin prosecute or defend proceedings under the Children Act 1989 subject to certain conditions without a next friend or guardian ad litem.  Such proceedings include proceedings to determine whether a child should live with the divorced mother or father: Re S (A Minor) (Independent Representation) [1993] 2 FCR 1 (CA) or whether a child should live with her natural parents against the wishes of her adoptive parents: Re T (A Minor) (Independent Representation) [1993] 2 FCR 445 (CA).  Similarly, in Australia a child is able to institute certain proceedings in the Family Court, including applications seeking parenting orders, child maintenance orders or orders for separate representation of the child: ss 65C, 66F, 68L.  The Family Court will only require that a next friend be appointed if it is satisfied that the child does not understand the nature and possible consequences of the proceedings or is not capable of conducting the proceedings on the child’s own behalf: Family Law Rules, O 23 r 3.

55                  I am satisfied, without recourse to the terms of article 3(1) of the Convention that s 6 of the Act does not require the appointment of a tutor in all cases where a child seeks to enforce the statutory obligations contained therein.  Furthermore, the treatment of the Convention in Australian law and the history of the recognition of the rights of the child, reinforce that conclusion. 

56                  The particular circumstances of this case do not suggest that a tutor is necessary or appropriate having regard to the best interests of the applicants as a primary consideration.  The applicants are close to majority, and have the assistance of Mr Kijagulu for any adult guidance they need.  They have brought these motions.  There has been no suggestion by the respondents that, aside from the alleged legal necessity for a tutor, the particular circumstances of these applicants require such an appointment.  An important factor against requiring the appointment of a tutor is the likelihood that such requirement would stifle the litigation and thereby prevent the applicants from pursuing their claims.  There is no evidence that the applicants’ fundamental needs can be met except by pursuing this litigation.  Thus, the applicants are not required to appoint a tutor for the further conduct of the proceedings.

The Common Law Position

57                  If I am wrong in concluding that the Act, properly construed, does not require the intervention of a tutor in the circumstances of this case, the question arises whether the common law requires such an appointment.

58                  As was pointed out in Myers and Haines, the common law requirement was not universal.  In Myers Isaacs J said at 666-7:

One can bring to mind a number of types of proceedings in the Supreme Court in which applicants might be infants but where next friends are not in practice appointed, for example, applications to a Supreme Court judge for bail where the applicant is under 21, applications for the prerogative writs of prohibition or certiorari in respect of proceedings in the lower courts, again where the applicants are under age; and applications for habeas corpus by mothers of illegitimate children, natural fathers or lawfully wedded parents, where the applicants in all these cases are under age.  Many such cases have occurred from time to time over the years and the courts have been conscious of the fact that the applicants were legal minors but no exception seems to have been taken, in our courts at least, to such persons proceeding without the aid of a next friend.  But if this be so, it is my view that it is probably because the interests of justice are placed first, nobody has taken the point and that any such rule of law in relation to such proceedings is more honoured in the breach than in the observance.

59                  In Haines Street CJ with whom Samuels JA agreed said at 449:

In the criminal field it is commonplace for an infant accused person to participate by directly instructing solicitors and counsel.  Likewise on appeal it is commonplace for an appeal to be instituted by an infant personally and be carried through at the appellate hearing by the infant directly instructing solicitors and counsel or even at times by the infant appearing personally without legal representation.

60                  The reasons given for the common law requirement for the appointment of a tutor have varied depending on the particular circumstances of each case.  They have included the need:

(1)               for legal capacity to enter into a contract of engagement with lawyers – something which a minor lacks;

(2)               to provide instructions to lawyers for the conduct and possible settlement of the proceedings;

(3)               to advise and guide the minor in determining the best course in the proceedings;

(4)               to provide a source for the payment of costs to the opposite party in the event that the minor failed in the case.

            See Dey v Victorian Railway Commissioner (1949) 78 CLR 62 per Latham CJ at 83 per Dixon J at 100, Myers at 668 and Haines per Kirby P at 463.

61                  In the cases in which a tutor was not required these various reasons were obviously regarded as subservient to other reasons more compelling in the circumstances.  This pattern suggests that there is no rigid rule applicable to all cases.  Certainly, no such rule appears to have been applied in a case involving the attempted vindication of the fundamental human rights of a child.

62                  I must therefore consider the proper approach to such a case on the basis of principle.  Because the rights sought to be vindicated are fundamental human rights, the interests of the child should be a paramount consideration in determining whether a tutor is required.  The interests of the child will vary depending on the circumstances of each case.  Where, for instance, the child is very young, the need for guidance of an adult may be determinative.  Where the child has a full understanding of the issues and the effect of insisting on the appointment of a tutor would be to stifle the litigation and thereby deny the child important urgent needs, it would not be in the interests of the child to require the appointment of a tutor.  It follows that in principle the question whether a tutor is required in cases in which children assert a breach of their fundamental human rights should be determined by the Court.  The Court should give paramount consideration to the interests of the child in making the determination.  It will be necessary for the Court to take into account the age, understanding and capacity of the child to determine the extent to which the child requires guidance and assistance.  The Court will also evaluate the nature of the rights asserted and the urgency attending the determination of those rights.  It will take account of the ease or otherwise of the child finding a tutor to act.  An important consideration against the requirement that a tutor be appointed would be that such a requirement would stifle the litigation.  The Court will also assess whether there will be undue prejudice to the opposite party if no tutor is appointed to be responsible for costs in the event that the proceedings fail.

63                  In seeking the principle upon which the common law is to develop it is legitimate to take into account the provisions of international conventions to which Australia is a party.  Indeed, in respect of article 3(1) of the Convention Mason CJ and Deane J in Teoh said at 288:

“Apart from influencing the construction of a statute or subordinate legislation, an international convention may play a part in the development by the courts of the common law.  The provisions of an international convention to which Australia is a party, especially one which declares universal fundamental rights, may be used by the courts as a legitimate guide in developing the common law.  But the courts should act in this fashion with due circumspection when the parliament itself has not seen fit to incorporate the provisions of a convention into our domestic law.  Judicial development of the common law must not be seen as a backdoor means of importing an unincorporated convention into Australian law.  A cautious approach to the development of the common law by reference to international conventions would be consistent with the approach which the courts have hitherto adopted to the development of the common law by reference to statutory policy and statutory materials.  Much will depend upon the nature of the relevant provision, the extent to which it has been accepted by the international community, the purpose which is intended to serve and its relationship to the existing principles of our domestic law.”

64                  See also Mabo v Queensland (No 2) (1992) 175 CLR 1 per Brennan J at 42, Dietrich v the Queen (1992) 177 CLR 292 per Brennan J at 321 and “The Influence of International and Transnational Law on Australian Municipal Law” by Sir Anthony Mason in (March 1996) 7 Public Law Review 20.

65                  Article 3(1) of the Convention would require the Court to give consideration to the best interests of the child and to accord those interests a primary position.  The Convention envisages the Court exercising a discretionary judgment.  It does not contemplate an inflexible rule which would be applied without any consideration of the question whether it was appropriate in the circumstances, and it does not contemplate that a court would fail to give primary consideration to the best interests of the child.  If the development of the common law is to be influenced by article 3(1) of the Convention the Court will be required to consider whether a tutor should be appointed in the particular circumstances of an application by a minor to enforce fundamental human rights prescribed by the Convention.

66                  The guidance of the Convention is particularly apposite in the present case because, although its terms have not been directly incorporated into domestic law, the functions conferred on the Human Rights and Equal Opportunity Commission by the provisions of the Human Rights and Equal Opportunity Act previously referred to make the terms of the Convention a significant influence in the process of development of domestic law. 

67                  Further the principle underlying article 3(1) is already reflected in domestic legislation which gives children the right to participate in proceedings in the Family Court involving their welfare.  As discussed above, a child is given the right to apply for a range of different orders concerning their welfare including maintenance orders, and other orders enforcing parental responsibility (ss 65C and 64B(2) of the Family Law Act 1975).  Especially relevant is the right given to a child to institute proceedings against a guardian appointed under state law (s 66F(2)(a)).  Other proceedings may be brought by a child unless the Act exhibits a contrary intention (s 69C).  Where a child institutes proceedings O 23 r 3 of the Family Law Rules provides:

“Child taking or defending proceedings

3.  (1) Where a party to proceedings is a child, the court may, at any time, if it is satisfied that the party does not understand the nature and possible consequences of the proceedings or is not capable of conducting the proceedings on the party’s own behalf, require that a next friend of the party be appointed for the purposes of the proceedings in accordance with Division 3.

68                  In a number of States in Australia children are required to be represented in care and protection applications under state law and the child’s representative must act on the instructions of the child unless the child is not capable of properly instructing the representative (Children’s Protection Act 1993 (SA): s 48(2); Children and Young Persons Act 1989 (Vic): s 20(9) and Children, Young Persons and Their Families Act 1997 (Tas)).  The Family Law Act and State welfare law provisions demonstrate that the law in Australia presently recognises the principle that in certain types of litigation children should be able to institute proceedings without the intervention of a tutor.

69                  The provisions of the Family Law Act and the Family Law Rules not only attest to the indirect application of the Convention in certain parts of domestic law, but they also express a policy towards the capacity of children to institute certain types of legal proceedings without the need for a tutor except in limited circumstances.  The relevance of a policy expressed in legislation to the development of the equivalent common law principles has been recognised through a process of reasoning by analogy.  In Esso Australia Resources Ltd v The Commissioner of Taxation for the Commonwealth of Australia 83 FCR 511 (Esso) a five-member bench of the Federal Court (Black CJ, Beaumont, Sundberg, Merkel and Finkelstein JJ) considered whether the dominant purpose test for the establishment of client legal privilege set out in the Evidence Act 1995 (Cth) applied to pre-trial discovery.  Pre-trial discovery was governed by the common law and not by statute.  Previously the common law had used the sole purpose test to determine whether documents were subject to pre-trial discovery.  One issue was whether the policy exhibited by the Evidence Act provisions in relation to testimony in court should be applied to alter the common law by analogy.  In each of the three judgments extensive consideration was given to the availability of the process of analogical reasoning in the development of the common law.  The process was described by Lord Diplock (with whom Viscount Dilhorne, Lord Salmon and Lord Scarman agreed) in Warnink v J Townend & Sons (Hull) Ltd [1979] AC 731 at 743 as follows: 

“Where over a period of years there can be discerned a steady trend in legislation which reflects the view of successive parliaments as to what the public interest demands in a particular field of law, development of the common law in that part of the same field which has been left to it ought to proceed upon a parallel rather than a diverging course.”

In Moragne v States Marine Lines Inc (1969) 398 US 375 the United States Supreme Court observed at 390: 

“This legislative establishment of policy carries significance beyond the particular scope of each of the statutes involved.  The policy thus established has become itself a part of our law, to be given its appropriate weight not only in matters of statutory construction but also in those of decisional law”. 

70                  In Esso each judgment concluded that the process of analogical reasoning was available to assist in the development of the common law, but was inapplicable in that particular case.  In the present case the circumstances to which the statutory policy has been applied in the family law provisions is so essentially similar to the circumstances under consideration that the existence of the statutory policy speaks strongly in favour of the same policy applying to the circumstances governed by the common law. 

71                  Finally, some assistance in identifying the proper principle to be applied can be derived from the report Seen and Heard: Priority for Children in the Legal Process produced by the Australian Law Reform Commission and the Human Rights and Equal Opportunity Commission in September 1997: ALRC Report No 84.  The report considered, inter alia, the status of children in litigation, including their participation in litigation in the federal migration jurisdiction and under s 6 of the Act.  The report particularly considered the requirements of the Convention on this area of the law.  One of the issues raised was described as follows:

“13.17  Some young people may have a cause of action they wish to pursue independently and many are sufficiently mature to do so.  Many young people live independently.  Some of these young people have causes of action but no suitable family member to act as a next friend.  The mature minor test was developed in British and Australian courts initially in relation to the ability of a child to make informed decisions concerning medical treatment independent of parents.  It may be useful in this broader context.” [at 248]

72                  The conclusion was as follows:

“13.19  Permitting mature minors to litigate directly should not prevent the court from scrutinising settlements and compromises.  It should be accompanied by a provision allowing the court to appoint a next friend or guardian ad litem for a child where that child is litigating directly but, in the opinion of the court, is not sufficiently mature or capable of doing so.  This would bring civil proceedings into line with family law proceedings…” [at 249]

73                  The resulting recommendations 68 and 69 were:

“Recommendation 68.  There should be a rebuttable presumption that a child over the age of 16 years living independently is competent to initiate or defend litigation.

Implementation.  The Attorney-General should introduce legislation to this effect to apply to the Federal and High Courts and the rules of those courts should be amended to reflect that legislation.  The Attorney-General through SCAG should encourage the States and Territories to enact similar legislation in State and Territory courts.

Recommendation 69.  Court rules should be amended by the insertion of a subrule similar to that contained in the Family Law Rules O 23 r 3(1) whereby the court may require the appointment of a next friend for a child where the child has initiated proceedings directly but the court is satisfied that the child does not understand the nature and possible consequences of the proceedings or is not capable of conducting proceedings directly.

Implementation.  The Federal and High Courts, along with State and Territory courts, are encouraged to amend their rules to this effect.” [at 250]

74                  These recommendations, particularly Recommendation 69, provide some validation for the conclusion I have reached as to the proper principle to be applied in developing the common law in this case. 

75                  Therefore, even if this approach is adopted in the present application, then taking into account the best interests of the applicants as a primary consideration, for the reasons earlier expressed, I would also determine that the applicants are not required to appoint a tutor for the further conduct of the proceedings.

The Parens Patriae Analogy

76                  The applicants argued in the alternative that if a tutor was required the respondents should be restrained from making any claim for costs against Mr Kijagulu who would then act as tutor.  It was submitted that this result would be in the best interests of the applicants.  In refusing to undertake not to claim costs from Mr  Kijagulu the respondents were acting in breach of their duty as guardians.  The applicants contended that the jurisdiction of the Court under s 6 of the Act and s 39B(1A)(c) of the Judiciary Act was analogous to the parens patriae jurisdiction.  The Court was to stand in the shoes of a parent.  Its role was described by Lord Esher MR in Reg v Gyngall [1893] 2 QB 232 at 241:

“The Court is placed in a position by reason of the prerogative of the Crown to act as supreme parent of children, and must exercise that jurisdiction in the manner in which a wise, affectionate, and careful parent would act for the welfare of the child.”

77                  This passage was cited with approval by Brennan J in Secretary, Department of Health and Community Services v JWB and SMB (Marion’s Case) (1992) 175 CLR 218 at 280. 

78                  The applicants’ arguments on this issue in the form outlined above were crystallised on the last day of the hearing of the application.  The respondents contended that s 39B only gives this Court the power to review the Minister’s exercise of administrative power under s 6.  They submitted that the applicants’ submissions would mean the Court is effectively exercising administrative power.  One view of the submissions of the respondents on the last day of hearing is that the respondents reserved the right to call further evidence because the issues had been clarified only late in the hearing.  As a result the respondents were invited by the Court to file further affidavits on the question.  The first respondent declined the invitation but on 5 May 1999 wrote:

“The First Respondent does, however, contend that it would be inappropriate for the Court to make any such order in advance of the hearing and determination of the proceedings.  Any such order would foreclose the possibility of the Court, in the exercise of its discretion, at the conclusion of the trials from considering whether an order for costs against the tutor may be appropriate, having regard to the manner in which the proceedings have been conducted.  One of the purposes which underlies the requirement of the appointment of a tutor for minors is the imposition of appropriate discipline as to the manner in which proceedings are conducted by the tutor.  That purpose would be wholly abrogated by the making of the order sought.  If, at the time at which orders are made in the proceedings, the Court considers, having regard to all relevant circumstances, that it would not be appropriate to award costs against the tutor (in the event that the First Respondent is successful in defending the proceedings), the Court can, at the stage, protect the interests of the tutor by declining to make an order for costs.”

79                  I accept the applicants’ argument that s 6 of the Act and s 39B(1A)(c) of the Judiciary Act confer on the Court a jurisdiction to supervise the Minister’s function as guardian of non-citizen children.  The fact that the guardian referred to in s 6 is the Minister or a delegate of the Minister does not mean that the role as guardian involves decisions of an administrative nature.  This Court’s jurisdiction to supervise is analogous to the parens patriae jurisdiction exercised by courts of unlimited jurisdiction.  The Court must therefore determine for itself whether it is in the best interests of the applicants that the respondents be restrained from claiming costs in the event that Mr Kijagulu acts as tutor and the applications are unsuccessful.

80                  The applicants have tried to find a tutor willing to accept liability for costs but, not surprisingly, have not been able to do so.  Mr Kijagulu fulfils all the requirements of a tutor save for his unwillingness or inability to pay any order for costs.  If the risk of having to satisfy a costs order is not removed, the litigation necessary to vindicate the alleged rights of the applicants will be stifled at least until each of them turns eighteen.  The guardian is responsible for their immediate welfare.  Any rights to support must be enforced as soon as possible.  It is not consistent with the nature of the rights asserted that enforcement be delayed until the applicants or either of them reach eighteen.  Consequently, if I am wrong in the views expressed earlier in these reasons that the applicants do not require the intervention of a tutor, I would nevertheless make orders restraining the respondents from seeking costs from Mr Kijagulu in the event that he became the tutor of the applicants in these proceedings. 

THE AGES OF THE APPLICANTS

81                  A final matter that should be addressed is the question of the applicants’ respective ages.  “X” in his affidavit affirmed on 21 September 1998 stated he was seventeen years old.    “Y” in his affidavit affirmed on 21 September 1998 stated he was sixteen years old.

82                  In an affidavit affirmed on 29 October 1998, filed on behalf of the respondent in the review applications, Lysbeth Mary Haigh deposed that “X” was born on 4 February 1983, and “[a]t present, the applicant is 15 years and 8 months old”, “Y” was born on 17 April 1981 and “[a]t present, the applicant Y is 17 years and 6 months old.  The applicant Y will turn 18 on 17 April 1999.”  In support of these statements, birth certificates alleged to relate to the applicants were exhibited. 

83                  However, in an affidavit affirmed on 30 October 1998, filed on behalf of the applicants, Karyn Anderson deposed that the applicants do not accept the accuracy of the birth certificates relied upon by the first respondent.

84                  Thus the present ages of the applicants are in dispute between the parties.  According to the first respondent, “Y” has recently attained the age of eighteen years and is no longer a minor.  According to the applicants, “Y” is the younger of the two applicants.  It is not clear from the applicants’ material whether they assert that “X” has in fact now turned eighteen.

85                  In any event, as I have concluded that the applicants were entitled to bring and continue the applications without the intervention of a tutor, it is unnecessary to determine the precise ages of the applicants for present purposes.

86                  The motion, notice of which was filed by the first respondent in each proceeding on 1 October 1998 is dismissed.  The respondents are to pay the applicants’ costs of and incidental to the said motions.

Associate:

Dated:              23 July 1999