Commission submissions: B

IN THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

No. NA 35 OF 1996

BETWEEN:

B, Appellant/Respondent

AND: B, Respondent/Applicant

AND: ATTORNEY-GENERAL OF THE COMMONWEALTH Intervener

AND: HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION Applicant for leave to intervene

WRITTEN SUBMISSIONS OF THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

Outline of the Commission's submissions

1. The Commission makes four principal submissions:

a) the Family Law Reform Act 1995 (Cth) ("the Reform Act") does not change the basic and long-standing principle that in all matters affecting children it is the 'best interests of the child' that remains the paramount consideration;

(b) in assessing the best interests of the child, the particulars of a proposal to 'relocate' by the parent who seeks a residence order are relevant;

(c) the Act does not override existing common law or constitutional rights such as the right to freedom of movement;

(d) the implied right of freedom of movement must be given recognition, status and appropriate weight in the circumstances of each case.

These submissions are elaborated below.

The best interests of the child remain the paramount consideration

2. The Commission respectfully supports the submissions of the Attorney-General in respect of the construction of the Reform Act insofar as they confirm that the effect of s.65E, read in conjunction with other provisions of the Reform Act, is to maintain the previously established position that the best interests of the child remain the paramount consideration in all matters concerning children.

3. Further, and in the alternative, the Reform Act is ambiguous on the issue of whether the best interests of the child remains the paramount consideration. The Commission submits that, in the absence of a clear and unambiguous statement of legislative intention to the contrary, the past position is maintained.

4. The phrase 'except when it is or would be contrary to a child's best interests' was inserted into s.60B so as to implement recommendation 3 of the Second Report of the Senate Legal and Constitutional Legislation Committee on the Bill to make it explicit that the children's right of contact with parents and other people is subject to the paramountcy of the child's best interests: amendment 10 of the supplementary explanatory memorandum to the Family Law Reform Bill 1994 (number 74861), N v S and the Separate Representative (1996) FLC 92-655.

The best interests of the child includes a consideration of a parent's proposals (e.g. to relocate)

5. A parent's right to freedom of movement is not incompatible with the best interests of the child: it is one issue that may need to be taken into account and in some cases relocation may promote the best interests of the child. There is no necessary or automatic inconsistency between considering and applying a parent's personal wishes, actions or circumstances and the best interests of the child; indeed, in many cases there may be a clear correlation: see Secretary, Department of Health and Community Services -v- JWB and SMB ('Marion's Case') at pp. 251-252 and 300-ĭ L and GM -v- MM (1994) FLC 92-449 at p.80,ʢ Re X [1991] 2 NZLR 365 at p.377 and Re ZP and PS (1994) 181 CLR 639 at p.663.

Right to freedom of movement

6. It is a common law rule of statutory interpretation that a court is to interpret statutes in the light of a presumption (which is rebuttable) that the Parliament does not intend to abrogate human rights and fundamental freedoms Re Bolton; Ex parte Beane (1987) 162 CLR 514 at ȋ Nationwide News -v- Wills (1992) 177 CLR 1 at 43.

7. Domestic law clearly recognises a general right to free movement within Australia - whether as a matter of common law (see Murphy J and others which assert that such a right exists by the fact of Federation) or by reason of s.92 of the Constitution: see R -v- Smithers (1912) 16 CLR 99 at p.109, 110 and Buck -v- Bavone (1976) 135 CLR 110 at p.137 in relation to the effect of Federation and R -v- Smithers (1912) 16 CLR 99 at p.117 and Gratwick -v- Johnson (1945) 70 CLR 1 in relation to s.92.

8. Although the right to freedom of movement is not specifically recognised within the Reform Act, this does not mean that it does not apply to or within it to the extent that it is not incompatible with the express words of that statute.

9. The right to freedom of movement is also recognised in Article 12 paragraph 1 of the International Covenant on Civil and Political Rights which entered into force for Australia on 13 August 1980 and is defined as a human right in s.3(1) of the Human Rights and Equal Opportunity Commission Act 1986. Having entered into force for Australia the Convention is a legitimate and important influence on the development of the common law Mabo -v- Queensland [No 2] (1992) 175 at CLR 1 at 42.

UN Convention on the Rights of the Child

10. The Reform Act has clearly drawn upon the Convention on the Rights of the Child ('the Convention'), which entered into force for Australia on 16 January 1991. The second reading speeches of the Bill in both the House of Representatives and the Senate both state that s.60B was intended to give recognition to rights provided for in the Convention, House of Representatives 8 November 1994 Hansard p.2759 and Senate Hansard 28 November 1994 p.3275 The Convention was specifically mentioned in an earlier draft of the Act: see paragraph 64 of the explanatory memorandum of the Family Law Reform Bill 1994 (number 54904).

11. To the extent that there is any inconsistency or ambiguity in the operation of the Act it should be resolved in a way that is consistent with international law Chu Kheng Lim -v- Minister for Immigration (1992) 176 CLR 1 at p.& The Minister for Foreign Affairs -v- Magno (1992) 112 ALR 529 at 534- Murray -v Director, Family Services, ACT (1993) FLC 92-216 at 80,ÿ Teoh -v- Minister for Immigration, Local Government and Ethnic Affairs (1994-95) 183 CLR 273 at p.ğ H -v- W (1995) FLC 92-598. Where a statute transposes a provision of a treaty into the statute, the prima facie legislative intention is that the transposed text bears the same meaning in the domestic statute as it does in the treaty, A -v- Minister for Immigration and Ethnic Affairs 71 ALJR 381 at p.383. The interpretation of international treaties requires a holistic but ordered approach which may involve a consideration of both the text and the object and purpose of the treaty op cit at p.383, 396. The best interests of the child is an underlying consideration of the Convention. Article 3, paragraph 1 of the Convention provides that 'the best interests of the child shall be a primary consideration'. Accordingly, in construing the Act an interpretation of the Act which recognises the paramountcy principle ought to be favoured.

12. The relevance of the Convention on the Rights of the Child is substantial - it is part of the platform for providing the underlying principles of the Reform Act. Its legal relevance is that because the Act does not clearly create a precedence of rights (other than, it is submitted, that the best interests of the child are paramount), the Convention assists by providing as basis for construction that is consistent with international norms - something that is to be preferred if legitimately open to the Court. That is to say, s.60B, s. 65E and s.65F are to be interpreted within the context of international human rights principles insofar as that interpretation is compatible with Parliament's express intention in the Reform Act. The first paragraph of the preamble to the Convention states that 'in accordance with the principles proclaimed in the Charter of the United Nations, recognition of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world'. The preamble to the Convention also states that the family 'is the fundamental group of society and the natural environment of the growth and well-being of all its members and particularly children'. The wellbeing of all members of the family and the freedom of a parent to exercise his or her human rights are factors in determining the best interests of the child.

13. It is submitted that the Act has not changed one of the essential characteristics of the original Family Law Act 1975 (Cth); namely, that the best interests of the child is the paramount consideration in all matters that touch upon the welfare of the child as set out in s.65E of the Reform Act Re ZP and PS (1994) 181 CLR 639. The change in terminology from the 'welfare of the child' in s.64(1)(bb) of the original Family Law Act 1975 to the 'best interests of the child' in s.68F of the Reform Act has not affected the paramountcy principle: see paragraph 330 of the explanatory memorandum to the Family Law Reform 1994 (number 71147).

Summary

In summary the Commission submits that the following principles apply:

(i) The right to freedom of movement is an implied fundamental right of every adult.

(ii) It is a right to which must be afforded the same status as any other implied fundamental right or right expressly provided for in the Reform Act.

(iii) Appropriate weight is to be given to it in assessing the best interests of the child.

(iv) In particular circumstances it is a right which if afforded both recognition and appropriate weight will promote the best interests of the child.

(v) To apply those principles is to give recognition to the basis of them in Australian law and in accordance with the Convention.

Dated: 14 May 1997 Human Rights and Equal Opportunity Commission Counsel for the Commission: P I Rose QC Solicitor: K A Burns

WRITTEN SUBMISSIONS OF THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION IN RELATION TO THE RIGHT TO FREEDOM OF MOVEMENT WITHIN A STATE

1. Section 92 of the Constitution is a guarantee of personal freedom 'to and fro among the States without burden, hindrance or restriction': Gratwick -v- Johnson (1945) 70 CLR 1 at p.17, quoted with approval in Cole -v- Whitfield (1987-88) 165 CLR 360 at p.393.

2. A right to freedom of movement may also be implied from the Constitution, as flowing from the notion of a federal union and free society governed according to the principles of representative democracy. This right of freedom of movement, particularly within a state, has been recognised within Australian law by the High Court in one of its earliest decisions, R-v- Smithers; Ex parte Benson (1912) 16 CLR 99. Higgins J in particular, at p.119, held that as in the United States of America, citizens 'as members of the same community must have the right to pass and repass through every part of it without interruption as freely as in their own states (emphasis added).

This view was endorsed by Murphy J in Buck -v- Bavone (1976) 135 CLR 110 at p.137 where he stated: 'The right of persons to move freely within state borders is a fundamental right arising from the union of the people in an indissoluble commonwealth' (emphasis added). Further expansion on this right is found in the judgment of Murphy J in Miller -v- TCN Channel Nine Pty Ltd (1986) 161 CLR 556. (The right of movement within a state was not the subject of disagreement in the majority judgment in that decision.)

In relation to the right of freedom of movement generally see Australian Capital Television Pty Ltd -v- Commonwealth (1992) 177 CLR 106, Gaudron J at p.212, also Mason CJ at p.138-139, 141-142, Brennan J at p.150 and Deane and Toohey JJ at p.174.

3. The right to freedom of movement also underlies the common law rights to liberty and security of the person, freedom of peaceful assembly and procession, and to a democratic society respecting the rule of law as recognised in the writ of habeas corpus, the tortious remedy of false imprisonment and the criminal law protections against unlawful arrest. There are, of course, restrictions in terms of necessary protections such as the law of trespass and protection of matters affecting the security of the state, for example defence establishments. In Melbourne Corporation -v- Barry (1922) 31 CLR 174 at p.206 Higgins J pointed out that the existence of a power to regulate an activity implies 'the continued existence of the thing to be regulated ... It must be borne in mind that there is this common law right ... As stated in Ex parte Lewis [(1896) AC 88], it a "right for all Her Majesty's subjects at all seasons of the year freely and at their will to pass and repass without let or hindrance"'.

4. The right to freedom of movement is also found in Article 12, paragraph 1 of the International Covenant on Civil and Political Rights which entered into force for Australia on 13 August 1980 and is defined as a human right in s.3(1) of the Human Rights and Equal Opportunity Commission Act 1986. Having entered into force for Australia the Convention is a legitimate and important influence on the development of the common law Mabo -v- Queensland [No 2] (1992) 175 at CLR 1 at 42.

Dated: 29 May 1997 Human Rights and Equal Opportunity Commission Counsel for the Commission: P I Rose QC Solicitor: K A Burns

Last updated 19 May 2003.