This paper examines the recent expansion of the powers of the Family Court of Australia with regard to children. The nature of the change was underlined in Marion's case, in which a majority of the High Court confmned that the Family Court had jurisdiction to hear an application relating to the performance of a hysterectomy on a severely retarded girl. No matrimonial dispute was involved. The fact that the Court may deal with children's cases in the absence of such a dispute has implications for State Children's Courts (which apply child welfare legislation) and for State Supreme Courts (in the exercise of the parens patriae jurisdiction). It is these implications which are the principal concern of this paper. Before they are explored, however, it is necessary to consider the Family Court's constitutional and legislative foundations.

The Constitution of Australia embodies a liberal political theory that the freedom of the citizen is dependent on the separation and distribution of the powers of the state between different institutions - legislative, executive and judicial. With the possible exception of a democratically elected legislature, none of these institutions should dominate the way in which the powers of the remainder are exercised. For the safeguard of personal liberty, each should act as a check and balance against the over-exercise of power by the remainder, and especially by the executive government of the day.

This principle - the separation of powers - was inherited originally from England but developed considerably in the United States. It has been regarded as a fundamental element of the Constitution since the act of federation in 1901. Recognition of the principle reputedly reached a high point in Boilermakers, a decision of the High Court of Australia in 1956.

It has been clearly established in the common law world for a long time that foreign penal and revenue laws are unenforceable in a forum court. Dicey and Morris state the rule thus: “English courts have no jurisdiction to entertain an action for the enforcement, either directly or indirectly, of a penal, revenue or other public law of a foreign State”. While the first two categories of foreign laws are well established, there is considerable doubtt outside of Australiat as to whether the third residual category of “public laws” can be justified.

The High Court in Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd (which will be referred to in this article as “Spycatcher”), was called on to decide whether it would allow a claim of the British Government to be heard in Australia. One of the arguments raised against allowing the action to go ahead was that it would potentially involve an Australian court enforcing a foreign penalt revenue or other public law. In the course of rendering its decisiont the Court reformulated the principles stated above into a broader principle. The Court stated that Australian courts will not enforce the “governmental interests” of a foreign sovereign. By this, the Court meant “the interests of a foreign sovereign which arise from the exercise of certain powers peculiar to government”. This rule or principle will be referred to, in this paper, as the “non-enforcement principle”.

Law students, served a standard helping of textbook or case method analysis, could be forgiven for thinking that the “law” consists mainly of common law rather than legislation, and that cases, not statutes, are the central repository of legal knowledge. Even those who study legislation often end up with a court-centred view of law. For while legislators enact laws, it is the judiciary which actually interprets, and in some respects, enforces them.

Such a view is essentially inaccurate. Australia, like most other advanced western democracies, is an administrative state, shaped by explicitly adopted policies, incorporated in legislation and implemented by a large array of large regulatory agencies. The economy, the health and safety of the public and the work force, the environment, and a multiplicity of other social goals are all regulated (with varying degrees of success) by this means.

The concept of discrimination has been assuming a greater role in various aspects of constitutional interpretation. It has been prominent for many decades in the area of implied federal restrictions on Commonwealth power to bind the States, which received some revitalisation in the Queensland Electricity Commission v Commonwealth. It has, more recently, become the central core of the operation of s 92 of the Constitution (Cole v Whitfield). It has been given new life and prominence in the application of s 117 of the Constitution in Street v Queensland Bar Association. Four judges in Philip Morris Ltd v Commissioner of Business Franchises (Dawson, Toohey, Gaudron and McHugh JJ) suggested that there were something to be said for the view - earlier supported by Fullagar and Murphy JJ - that the test for an excise duty should be whether a tax discriminated against goods manufactured in the State in which the tax is levied. This, however, must await a complete judicial review of the operation of s 90.