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

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