Minister for Immigration and Multicultural and Indigenous Affairs v B [2004] HCA 20

HIGH COURT OF AUSTRALIA

GLEESON CJ,

McHUGH, GUMMOW, KIRBY, HAYNE, CALLINAN AND HEYDON JJ

MINISTER FOR IMMIGRATION AND MULTICULTURAL

AND INDIGENOUS AFFAIRS APPELLANT

AND

B & ANOR RESPONDENTS

Minister for Immigration and Multicultural and Indigenous Affairs v B

[2004] HCA 20

29 April 2004

A246/2003

ORDER

1. Appeal allowed. 2. Set aside the orders of the Full Court of the Family Court of Australia made on 19 June 2003 and, in their place, order that the appeal to the Full Court of the Family Court be dismissed.

On appeal from the Family Court of Australia

Representation:

D M J Bennett QC, Solicitor-General of the Commonwealth with G R Kennett for the appellant and intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor)

S W Tilmouth QC with S C Churches and S D Ower for the first respondents (instructed by Jeremy Moore & Associates)

D F Jackson QC with B W McQuade for the second respondent (instructed by Boylan & Co)

F P Hampel SC with K L Eastman appearing as amicus curiae on behalf of Amnesty International Australia (instructed by Public Interest Advocacy Centre)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Minister for Immigration and Multicultural and Indigenous Affairs v B

Courts and judicial system – Family Court – Jurisdiction – Scope of welfare jurisdiction – Constitutional basis of welfare jurisdiction – Whether conferral of jurisdiction in relation to a "matter" – Children in immigration detention – Whether welfare jurisdiction extends to children of marriages of parents in immigration detention – Whether Family Court in exercising welfare jurisdiction can make orders directed at third parties – Whether Family Court has power to order release from detention – Whether any general welfare jurisdiction and powers of Family Court authorises orders inconsistent with specific obligations imposed on federal officers under Migration Act.