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Minister for Families v Certain Children

29 December 2016

Announcement of Decision

Chief Justice Marilyn Warren

1. This is an application for leave to appeal from the decision of Justice Garde made on 21 December 2016. His Honour held that Orders in Council purportedly made on 17 November 2016 under ss 478(a) and 478(c) of the Children, Youth and Families Act 2005 (‘the decisions’) were invalid. His Honour also declared that the State had breached the Charter of Human Rights and Responsibilities Act 2006, in relation to the plaintiffs.

2. The applicants for leave to appeal are, respectively, the Minister for Families and Children, the Secretary to the Department of Health and Human Services and the State of Victoria.

3. In  their  proposed  grounds  of  appeal,  the  applicants  challenge  both  his Honour’s finding that the decisions were invalid, and his declaration that the Charter was breached. Given the urgency of the matter, however, the Court proposed to the parties - and they agreed - that in the first instance argument on the application should be confined to those grounds directed at the finding of invalidity, and the orders consequent upon that finding. For it is that finding and those orders which have immediate practical implications for the parties.

4. We have had the benefit of most helpful argument from counsel on both sides, both in writing and orally. We wish to commend every member of the respective legal teams for their exemplary discharge of their professional duties, at a time of year when they might reasonably have been expecting to be on leave. The quality of the materials filed is quite remarkable, given the tight deadlines which had to be imposed.

5. Having considered those arguments, and the authorities relied on, we have come to a unanimous conclusion that the applicants’ challenge to the finding of invalidity should be dismissed. For reasons which will be published as soon as practicable, we have concluded that no error has been shown in his Honour’s finding that the Minister - and hence the Governor in Council, acting on the Minister’s advice - failed to take into account relevant considerations bearing on the exercise of the power conferred by ss 478(a) and (c). At the same time, we have concluded that his Honour erred in finding that the Orders in Council were made for an improper purpose.

6. Failure to take into account relevant considerations constitutes jurisdictional error and is sufficient, by itself, to support the judge’s finding of invalidity. The question of the operative date of any declaration of invalidity is a matter to be considered further, in the light of the parties’ submissions.

7. Given the conclusion we have reached, we considered it both necessary and appropriate to announce our decision without delay. We will now invite the parties to make submissions on the form of orders which should be made.

8. There is, of course, one outstanding ground of appeal, that directed at the judge’s findings of breach of the Charter.  Subject to hearing from the parties, we propose to adjourn the hearing of that part of the application for leave to appeal to a date to be fixed after 1 February 2017.

9. Although the issues arising under the Charter were fully debated before the judge, and thoroughly dealt with by him in his reasons, there is no apparent urgency attaching to the resolution of that part of the present application. A similar course was followed, with the consent of the parties, in Sopov v Kane Constructions Pty Ltd. In that case, the splitting of the appeal was effected by ordering that the first question on the appeal be determined separately from the determination of the other questions in the appeal.

10. Finally,  we  wish  to  make  clear,  in  the  interests  of  well-informed  public discussion, that this Court (like Justice Garde) is not concerned with, and expresses no view about, the merits of the decision made by the Minister to establish a detention centre at Barwon Prison. That is a matter of policy for Government, which is accountable to the electorate for its decisions. Quite properly, the courts play no part in such decisions.

11. The role of courts in a case such as this is quite different.  It is to ensure that Government operates according to law, that powers conferred on Ministers and public officials are exercised within the legal limits imposed on them by Parliament. In this case, the judge held that those legal limits were exceeded, and hence that the decisions had not been made according to law. We have concluded that his Honour was correct in so finding.

12. It is one of the foundations of our democratic society that the courts perform this supervisory role, and do so independently of Government and immune from political pressure. This is one of the guarantees of the rule of law.

Read the Court's full reasons for decision

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