Northern Territory : State Children sending of state children from northern territory to other states: power of governor-general to make ordinance permitting removal of state children from northern territory to other parts of australia: whether provision ‘in and in relation to the territory’
STATE CHILDREN ACT 1895 (SA) ss 4, 16, 22, 52, 53, 77: CONSTITUTION s 122 : NORTHERN AUSTRALIA ACT 1926 s 59: NORTHERN TERRITORY (ADMINISTRATION) ACT 1910 s 21
The Secretary, Department of Home Affairs, has forwarded the following memorandum to me for advice:
With reference to your memorandum of the 23rd October, 1930, No. 30/19531 on the above subject, I forward herewith, for consideration and favour of advice, copy of a memorandum and enclosure received from the Deputy Government Resident, North Australia regarding the matter.
The memorandum and enclosure referred to are as follows:
The Secretary, Department of Home Affairs, Canberra
State Children’s Council
Reverting to your memorandum 30/9981 dated 28th October last, regarding M., I have to advise that it is desired to enact the necessary legislation to permit of State Children from North Australia being sent to Institutions in other States.
I forward herewith copy of memorandum from the Crown Law Officer regarding steps which it will be necessary to take in order to effect this. I shall be glad accordingly if the matter is referred to the Attorney-General’s Department as suggested by the Crown Law Officer.
(Signed) L.H.A. Giles, Deputy Government Resident.
The Chief Clerk & Accountant
With reference to the memorandum of the 28th October 1930 from the Secretary, Department of Home Affairs (30/9981) forwarding an opinion of the Acting Secretary, Attorney-General’s Department, dated the 23rd October, 1930 (30/1953)1 relative to the powers of the State Children’s Council appointed under the State Children Act 1895, it appears that the Council now desires the passage of legislation to enable it to place children in institutions outside the Territory but within one of the various States of the Commonwealth.
The following decisions were made unanimously by the State Children’s Council:
- That the Chairman communicate with the Government Resident requesting that the necessary amending legislation be brought into force permitting any home in a State of the Commonwealth being proclaimed as an Institution under the State Children Act 1895.
- That the Minister be requested to have the Nazareth Home at Wynnum, Queensland, proclaimed as an Institution under the State Children Act 1895.
- As the sending of Miss M. to the Institution above-mentioned is urgent, the Chairman request the Government Resident that the matter be expedited.
Section 122 of the Constitution of the Commonwealth provides, inter alia, that the ‘Parliament may make laws for the Government of any Territory surrendered by any State to and accepted by the Commonwealth’.
Section 59 of the Northern Australia Act 1926 provides, inter alia, that ‘until the Parliament makes other provision for the Government of North Australia, the Governor-General may make Ordinances having the force of law in and in relation to North Australia’.
It is apparent, therefore, that there is no power to make statutory provision by ordinance to empower the State Children’s Council to place children in institutions outside the Territory of North Australia before the Commonwealth Parliament passes an act to enable children to be sent from North Australia to institutions in one or other of the States of the Commonwealth.
I have been informed by the Chairman of the State Children’s Council that the persons in charge of the Nazareth Home at Wynnum, Queensland, are willing to receive certain children from North Australia into their Institution without any charge being made against the State Children’s Council or the Administration of North Australia for their maintenance.
The law relating to convicted, destitute and neglected children is contained in the State Children Act 1895 (No. 641 of 1895), the State Children Amendment Act 1900 (No. 750 of 1900), the State Children Further Amendment Act 1903 (No. 519 of 1903) and the State Children Amendment Act 1909 (No. 996 of 1909). The regulations made under Act No. 641 of 1895 and published in the South Australian Government Gazette on the 30th April 1896 at page 911, on the 5th June 1902 at page 1165 and on the 22nd September 1910 at page 612 are also in force in this Territory.
The definition of ‘institution’ in the Act of 1895 is as follows:
‘Institution’ means and includes the Receiving Depot, the Reformatory School for Boys, the Reformatory School for Girls, every depot, industrial school, probationary school, or reformatory school established under this Act; and every private reformatory school or private institution proclaimed under this Act; and all other institutions, schools, and places for the time being under the care, control, or supervision of the Council.
Attention is directed also to the definition of ‘neglected child’ in section 4 of the Act of 1895 and in particular to paragraph VII of that definition which includes as a neglected child any child who ‘is under the guardianship of any person whom Justices shall consider unfit to have such guardianship’.
Attention is also directed to the meaning of ‘destitute child’ in the same section.
It will be seen that the expression ‘State child’ ‘means a ‘convicted child’, ‘destitute child’ or ‘neglected child’ received into or committed to an institution, or placed out under the authority of this Act or any Act heretofore enforced’.
The powers of the Council are set out principally in section 16 of the Act. In that section the Council is given power to apprentice and place out State children.
Section 22 of the Act is as follows:
22. The Governor, on the recommendation of the Council, may proclaim any private institution as an institution for the reception, detention, maintenance, education, employment, and training of State children; and thereafter such institution, until abolished as by this Act provided, shall be under the supervision of the Council.
Possibly one of the objections of the authorities in charge of the Convent in Darwin to receiving Miss M. is that they do not wish the Convent to be proclaimed by the Governor-General as an institution for the reception, detention, maintenance, education, employment and training of State children. If proclaimed as an institution the Convent would be under the supervision of the Council.
Sections 52 and 53 of the Act of 1895 as amended by Act No. 996 of 1909 are as follows:
52. The Council may, by indenture of apprenticeship, bind such child apprentice to any suitable person, to be taught such useful trade or calling as the Council shall approve, and such binding shall be as effectual as if the child were of full age at the date of the indenture, and had voluntarily executed the same, but the period of any such apprenticeship shall not exceed five years, nor extend beyond the day of the child attaining the age of twenty-one years.
53. The Council may place out any State child to reside and board with any relative of such child, or with a suitable person approved by the Council, for such period,subject to this Act, as the Council shall think fit; or may place out for such period as aforesaid any State child with any suitable person willing to receive such child for adoption or service, and who, in the opinion of the Council, is able to provide for and is suitable to be entrusted with the care of such child. Nothing in this section shall authorise the placing out of any child for any time extending beyond the period of detention of such child.
Section 77 should also be considered in connection with any amending legislation which may be passed.
It is clear that if the policy to permit the State Children’s Council in North Australia to send State children to institutions in other parts of the Commonwealth is approved a number of amendments will require to be made by ordinance of the State Children Acts 1895 to 1909. Before any ordinance is drafted it is necessary, however, that a bill should be prepared by the Attorney-General’s Department for passage by the Commonwealth Parliament in order to give the necessary power to send State children out of North Australia to institutions in another State. Probably if power were given to send State children to Queensland institutions it would not be necessary to make arrangements with any other State other than Queensland. In fact, it is not absolutely necessary to make arrangements with the governmental authorities in Queensland provided, as appears to be the case, there is an institution in Queensland which is willing to receive the State children from North Australia.
In view of the above considerations, it is advised that representations should be made to the Department of Home Affairs to take the necessary steps to have an Act drafted by the Attorney-General’s Department to effect the purposes referred to above, provided that the policy of allowing State children to be sent out of North Australia is approved by the Cabinet.
If and when a Bill is drafted by the Attorney-General’s Department it would be advisable to have a draft of the Bill forwarded here in order that an ordinance amending the State Children Acts 1895 to 1909 may be drafted without delay to provide what is required to fit in with the terms of the Bill prepared for the consideration of the Commonwealth Parliament.
(Signed) E.T. Asche, Crown Law Officer.
In my opinion, the provision contained in section 21 of the Northern Territory (Administration) Act 1910–1931 that ‘until the Parliament makes other provision for the Government of the Territory, the Governor-General may make Ordinances having the force of law in and in relation to the Territory’ is sufficient for the purpose of providing by Ordinance for the removal of persons from the Northern Territory to other parts of Australia.
The words of limitation contained in section 21 of the Act are ‘in and in relation to the Territory’. I consider that an ordinance of the nature referred to would not transgress those limits. Although powers under the ordinance would be exercised beyond the Northern Territory, such an exercise of those powers is, I think, incidental to the power of controlling persons within the Territory. The words ‘in relation to’ give additional support to this interpretation of the extent of the ordinance power.
In my opinion, therefore, an Act of Parliament is not required.
[Vol. 25, p. 421]