Family Law, S.121 – Is it forever?

Wednesday , 14, February 2018 Leave a comment


FAMILY LAW : S.121

Restriction on publication of court proceedings.

 

I have been having an ongoing debate as to whether S.121 applies to cases afoot in the Family Law Courts or does it extend indefinitely for the rest of the natural lives of the parties including the children when they become adults?

 

I, argue, that it only applies whilst cases are afoot, there is no blanket prohibition for all of eternity, as to have such a thing would require the wording of the Legislation to be crystal clear and unambiguous if there was such a prohibition, it would need to be written in express and clear terms, anything less than that from Parliament would not be enforceable for breach of the principle of legality.

There are a few formulations of the principle of legality, with relatively minor variations. In Re Bolton; Ex parte Beane (1987), Brennan J set out the principle in these terms:

 

Unless the Parliament makes unmistakably clear its intention to abrogate or suspend a fundamental freedom, the courts will not construe a statute as having that operation.[1]

In Attorney-General (SA) v Corporation of the City of Adelaide, Heydon J said:

The ‘principle of legality’ holds that in the absence of clear words or necessary implication the courts will not interpret legislation as abrogating or contracting fundamental rights or freedoms. For that principle there are many authorities, ancient and modern, Australian and non-Australian.[2]

 

In Lee v New South Wales Crime Commission (2013), Gageler and Keane JJ said that the application of the principle is not confined to the protection of rights, freedoms or immunities that are hard-edged, of long standing or recognised and enforceable or otherwise protected at common law. The principle extends to the protection of fundamental principles and systemic values.[3]

Having said that, in  practice, it seems abundantly clear, that there is an eternal prohibition and this post should not be considered as legal advice, nor even a legal position, but just a matter of curiosity….

FAMILY LAW ACT 1975 – SECT 121

Restriction on publication of court proceedings[4]

[1] Re Bolton; Ex parte Beane (1987) 162 CLR 514, 523. This was quoted with approval in Coco v The Queen (1994) 179 CLR 427, 437 (Mason CJ, Brennan, Gaudron and McHugh JJ).

[2] Attorney-General for South Australia v Corporation of the City of Adelaide (2013) 249 CLR 1, 66 [148] (Heydon J).

[3] Lee v New South Wales Crime Commission (2013) 302 ALR 363.

[4] FAMILY LAW ACT 1975 – SECT 121 Restriction on publication of court proceedings accessed here http://classic.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s121.html 14/02/2018 at 7.39pm.



%d bloggers like this: