Judges: Mason CJ
Brennan J
Deane J
Dawson J
Toohey J
Gaudron J

McHugh J

Canberra

Judgment by:
McHugh J

List of Judges

McHUGH J. The first question in this appeal is whether the Court has jurisdiction to hear it. That question has been resolved by the decison of this Court in Mellifont v. Attorney-General (Qld) ^[F259] . The second question is whether under the law of the Northern Territory, parents have the power to authorise the sterilisation of an intellectually disabled female under the age of 18 without the order of a court. If the answer to that question is no, the third question in this appeal is whether the Family Court of Australia has jurisdiction to give its consent to the procedure and, if so, whether the effect of that consent is to make the carrying out of the procedure lawful for the purposes of the civil and criminal law. These questions raise other issues: why does the law require consent to medical treatment and what effect does consent have; what is the source and scope of a parent's authority to consent to medical treatment for a child; is there any difference, so far as the giving of consent is concerned, between sterilisation and other surgical and medical procedures; is the law in the Northern Territory different from the common law?

After considering these issues, my conclusion is that custodial parents can give lawful consent to the sterilisation of an intellectually disabled child in the Northern Territory. Parents can give lawful consent if the procedure is necessary for the protection of the health of the child or to alleviate pain, fear or discomfort of such severity and duration or regularity that it is not reasonable to expect the child to bear it. They can also give lawful consent if the procedure is required to eliminate a real risk of the child becoming pregnant if she does not, and never will, have any real understanding of sexual relationships or pregnancy. In addition, parents can give lawful consent if sterilisation is required for a purpose analogous to any of the foregoing purposes. The custodial parents have no authority to consent to such an operation, however, if the harm can be reasonably avoided by means less drastic than sterilisation. If, for any reason, such as a conflict of interest, the parents are not able to give consent to sterilisation, the Family Court of Australia may give its consent in substitution for that of the parents. In such a case, the consent of the Family Court has the same effect for the purposes of the civil and criminal law as the consent of the custodial parents would have.

The need for consent to the carrying out of a surgical procedure

It is the central thesis of the common law doctrine of trespass to the person that the voluntary choices and decisions of an adult person of sound mind concerning what is or is not done to his or her body must be respected and accepted, irrespective of what others, including doctors, may think is in the best interests of that particular person. To this general thesis, there is an exception: a person cannot consent to the infliction of grievous bodily harm without a "good reason" ^[F260] . But save in this exceptional case, the common law respects and preserves the autonomy of adult persons of sound mind with respect to their bodies. By doing so, the common law accepts that a person has rights of control and self-determination in respect of his or her body which other persons must respect. Those rights can only be altered with the consent of the person concerned. Thus, the legal requirement of consent to bodily interference protects the autonomy and dignity of the individual and limits the power of others to interfere with that person's body.

At common law, therefore, every surgical procedure is an assault unless it is authorised, justified or excused by law. The law draws no lines between different degrees of violence, "every man's person being sacred, and no other having a right to meddle with it, in any the slightest manner" ^[F261] . A person who inflicts harm upon another must justify the doing of the harm. He or she may do so by proving that the harm was lawfully consented to or that the harm occurred in circumstances which the law recognises as a justification or excuse ^[F262] . Because a surgical procedure necessarily involves the touching and usually the infliction of bodily harm on a patient, the carrying out of such a procedure is an assault unless the patient or that person's legally authorised representative has consented to the procedure ^[F263] . In Schloendorff v. Society of New York Hospital ^[F264] , Cardozo J. said:

"Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient's consent commits an assault for which he is liable in damages."

Consent is not necessary, however, where a surgical procedure or medical treatment must be performed in an emergency and the patient does not have the capacity to consent and no legally authorised representative is available to give consent on his or her behalf.

In England, the onus is on the plaintiff to prove lack of consent ^[F265] . That view has the support of some academic writers in Australia ^[F266] but it is opposed by other academic writers in Australia ^[F267] . It is opposed by Canadian authority ^[F268] . It is also opposed by Australian authority ^[F269] . Notwithstanding the English view, I think that the onus is on the defendant to prove consent. Consent is a claim of "leave and licence". Such a claim must be pleaded and proved by the defendant in an action for trespass to land ^[F270] . It must be pleaded in a defamation action when the defendant claims that the plaintiff consented to the publication ^[F271] . The Common Law Procedure Act 1852 (15 and 16 Vict. c.76) ^[F272] also required any "defence" of leave and licence to be pleaded and proved. However, those who contend that the plaintiff must negative consent in an action for trespass to the person deny that consent is a matter of leave and licence. They contend that lack of consent is an essential element of the action for trespass to a person. I do not accept that this is so. The essential element of the tort is an intentional or reckless, direct act of the defendant which makes or has the effect of causing contact with the body of the plaintiff. Consent may make the act lawful, but, if there is no evidence on the issue, the tort is made out. The contrary view is inconsistent with a person's right of bodily integrity. Other persons do not have the right to interfere with an individual's body unless he or she proves lack of consent to the interference.

Consent by or on behalf of a minor

Until recently, it was doubtful whether at common law a minor could validly consent to the carrying out of a medical procedure. It is now established that if a minor has the requisite capacity, he or she may do so ^[F273] . A minor has that capacity where he or she possesses sufficient intellectual capacity and emotional maturity to understand the nature and consequences of the procedure to be performed. Consequently, if a minor lacks the intellectual capacity and emotional maturity required to understand the nature and consequences of a medical procedure, his or her agreement to the carrying out of that procedure will be of no effect ^[F274] .

In some States, legislation now provides that, in some circumstances, minors may give a lawful consent to medical treatment ^[F275] .

However, the common law would be socially unacceptable and deserving of condemnation if its doctrines led to the result that, in the absence of an emergency, the carrying out of an ordinary medical procedure on a minor constituted an assault whenever the minor lacked the capacity to consent to the procedure. Consequently, the common law has conferred power upon a parent who has the lawful custody of a minor to give a lawful consent to the carrying out of medical procedures on that minor, including submission to a blood test for forensic purposes ^[F276] .

The source of the common law power of parents to consent to the medical treatment of their children

The basis and scope of the common law power of a parent to consent to medical treatment on behalf of a child has been given little attention by the courts. Although the existence of the power had long been assumed, it was not the subject of judicial pronouncement until 1968 ^[F277]

There appear to be three possible sources of the power: (1) a duty to provide medical treatment; (2) a natural right in a custodial parent to control the person and property of the minor; and (3) a right which, in the public interest, the law confers on parents to take such steps as will advance and protect the interests of the child.

(1) Duty

Blackstone asserted that the "power of parents over their children is derived from ... their duty" ^[F278] . He contended that the duty ^[F279] :

"to provide for the maintenance of their children, is a principle of natural law; an obligation ... laid on them not only by nature herself, but by their own proper act, in bringing them into the world: for they would be in the highest manner injurious to their issue, if they only gave their children life, that they might afterwards see them perish. By begetting them, therefore, they have entered into a voluntary obligation, to endeavour, as far as in them lies, that the life which they have bestowed shall be supported and preserved."

There is no difficulty in concluding that a person who has the duty to ensure that a minor obtains medical treatment also has the power to authorise that treatment. Whenever the law imposes a duty, it will imply, if necessary, the power to carry out that duty to the extent required by the need ^[F280] . But while many of the powers that parents exercise for the benefit of their children are explicable on the basis of duty, the power to consent to medical treatment cannot be explained on that basis because the law imposes no general duty on parents to provide medical treatment for their children.

It is not surprising that the common law has imposed no general duty on parents to provide medical treatment for their children. As Lord Devlin has pointed out ^[F281] :

"in the centuries when the common law was in the making, medical men were of little account in the community. The apothecary and the leech were not socially esteemed and medicine had still to become a learned profession."

The combination of the common law and the Poor Relief Act 1601 (43 Eliz c 2) imposed a duty on a father to protect his children and to maintain them until they reached an age where they could lawfully and physically support themselves. But a father was not obliged to provide more than the necessaries of life ^[F282] . Moreover, even in the case of necessities, he was not liable for any debt incurred by his child without his authority ^[F283] . Since a power implied from the imposition of a duty is "limited by the extent of the need" ^[F284] , the common law and Poor Relief Act duties of a parent to provide the necessities of life could not be made the source of the power to consent to those medical procedures which, though desirable, were not necessaries.

However, the duty of a parent to provide medical treatment for a child is no longer the exclusive domain of the common law or the Poor Relief Act. During the last hundred years, legislation has made it an offence in certain circumstances for parents to fail to provide medical treatment for their children. Some jurisdictions in Australia make it an offence if the parents wilfully neglect to provide medical treatment for a child and the neglect is likely to result in harm to the child ^[F285] . Some jurisdictions make it an offence to wilfully neglect to provide medical aid ^[F286] . And some jurisdictions make it an offence to neglect to provide medical aid to a child unless there is a reasonable excuse for not doing so ^[F287] . But nothing in the terms of this legislation nor in the implied duties which they impose give any ground for concluding that parents have a general power to consent to the medical treatment of their children. None of this legislation, for example, provides, even by implication, a duty to provide cosmetic surgery or treatment. At most, the legislation imposes a duty on parents not to neglect to provide necessary medical treatment for their child.

(2) Natural right of control of person and property

In the 19th and for much of the 20th century, the power of a parent to consent to the medical treatment of a child was almost certainly derived from what was considered to be a natural right in the father of near absolute control over the person and property of his child. Many cases decided in the last century can only be explained on the basis that a father had such control over his children. In R. v. De Manneville ^[F288] , for example, the King's Bench held that a father had the right to seize and retain custody of a "child then at the breast". In In re Agar-Ellis. Agar-Ellis v. Lascelles ^[F289] , it was not suggested that the mother was of bad character, yet the Court of Appeal held that the father had the right to refuse permission to his daughter, aged 17, to see or correspond with her mother without showing the correspondence to him or his nominee. Brett M.R. said ^[F290] that "the father has the control over the person, education and conduct of his children until they are twenty-one years of age. That is the law."

However, the father's near absolute right of control over the person, education and conduct of his children has been taken away by a series of enactments in England and Australia in the last hundred and fifty years and by the social and judicial recognition of children as persons with independent rights. Thus, legislation has given the mother as well as the father the right to the custody of their children. Moreover, the "welfare of the child" criterion means that, where the child is young, a custody dispute between the father and mother will usually be resolved in favour of the mother. Furthermore, the courts have increasingly recognised the "rights" of children by taking account of their wishes in custody disputes. In other cases, the courts have recognised the ability of mature children to make decisions concerning their own affairs. In an era in which many children over the age of fourteen leave home, support themselves, and enter into commercial dealings and de facto and sexual relationships, the Courts could hardly do otherwise. Consequently, in Hewer v. Bryant ^[F291] , Lord Denning said:

"that the legal right of a parent to the custody of a child ends at the 18th birthday: and even up till then, it is a dwindling right which the courts will hesitate to enforce against the wishes of the child, and the more so the older he is. It starts with a right of control and ends with little more than advice."

Lord Fraser of Tullybelton gave his approval to "every word" of this passage in Gillick ^[F292] where the House of Lords held that, if a female under the age of 16 years has sufficient intelligence and maturity to understand the nature of and need for contraceptive treatment, she has the legal capacity to obtain contraceptive treatment notwithstanding the objections of her parents. Other cases have also held that a minor of sufficient intelligence and maturity can give a lawful consent to acts which require consent as a condition of their legality ^[F293] . Modern case law makes it impossible, therefore, to assert that parents have a natural right of almost absolute control over the person, education, conduct and property of their children. Consequently, the power of parents to consent to medical treatment and surgical procedures in respect of their children can no longer be regarded as existing as an incident or corollary of such a right.

(3) Right of advancement

Once it is accepted that the power of parents to give a valid consent to the medical treatment of their children does not arise from a duty or from a natural right of almost absolute control over the person of the child, it follows that the common law gives this power to parents simply because it perceives them to be the most appropriate repository of such a power. Both the interests of the child and the interests of society require that, wherever possible, a child should not be deprived of medical treatment that is for his or her benefit. Consequently, a just and rational legal system must make provision for the care of those who, by reason of infancy, lack the capacity to control and manage their own affairs. This means that the legal system must give a person or persons authority to act on behalf of children in respect of matters in which they are unable to act for themselves. In the case of children ^[F294] :

"Apart from a public authority, the most obvious candidates are one or both of the child's parents and it is in such persons that English law, in keeping with most other societies, has vested such authority and responsibility."

Although the case for making the parents the repository of such authority is not perhaps as clear cut as is conventionally thought, that case is, nevertheless, supported by strong sociological, psychological and administrative considerations ^[F295] . As Dworkin points out, these grounds include respect for the family as the decision making unit, the appropriateness of giving the power to those who possess a moral duty to protect the child and who are, therefore, likely to have the child's best interests in mind, and the cost and inconvenience of vesting the power in others such as government officials.

The authority to act for children is conferred on parents, however, for the benefit of the child and not for the benefit of the parents ^[F296] . Once that is acknowledged, "the family is to be conceived as a community of individuals with separable interests and not merely as a unitary state to be controlled by a (benevolent?) despot" ^[F297] . Consequently, when a custodial parent gives consent to the medical treatment of his or her child, the parent does so as agent for the child. However, the parent's consent is not substituted for that of the child in the sense that the parent should make the decision which the child would have made if the child was mature enough to give consent. Ex hypothesi, the child will not have reached the stage where he or she has been able to make realistic plans or to formulate goals for the future. Accordingly, it would be unreal to suggest that a parent should make the decision which the child would make. What the child would have decided, if confronted with the problem, can only be a matter of speculation.

Furthermore, because parents are given authority to act for the benefit of the child, their authority is limited to those acts which advance or protect the welfare of the child. This criterion is a matter which must be determined objectively and not by reference to the good faith opinions of the parent. A parent has no authority, therefore, to consent to medical treatment unless it can be seen objectively that the treatment is for the welfare of the child. If a parent purports to give consent to treatment which is not for the welfare of the child, the consent is of no effect. A person who acts on such "consent" is guilty of assaulting the child if the treatment involves any physical interference with the child. Moreover, the parent's authority is at an end when the child gains sufficient intellectual and emotional maturity to make an informed decision on the matter in question. In so far as Re R (A Minor) (Wardship: Consent to Treatment) ^[F298] suggests the contrary, it is inconsistent with Gillick.

One other matter needs to be noted. The powers which the parent exercises on behalf of the child are exercised in the course of a fiduciary relationship ^[F299] . At all events, the role of the parent, when acting for the benefit of his or her child, and the role of a fiduciary are sufficiently similar to make at least some of the principles concerning fiduciaries applicable to the parent-child relationship. Thus, in principle, a parent can have no authority to act on behalf of his or her child where a conflict arises between the interests of the parent and the interests of the child. In A.M. Spicer and Son Pty. Ltd. (In Liquidation) v. Spicer ^[F300] , Starke J. pointed out:

"it is a rule of universal application, in the absence of any stipulation to the contrary, that no one having such (fiduciary) duties to perform should be allowed to enter into engagements in which he has or can have a personal interest conflicting or which possibly might conflict with the interests of those whom he is bound to protect".

This is a matter of significance in cases where the carrying out of or failure to carry out an operation or treatment affects the interests of the parents as well as those of the child. No doubt in most cases of medical treatment or surgery, no conflict will arise between the interests of the parents and those of the child. In other cases, the risk of conflict may be so slight or theoretical that it can be disregarded. But in some cases - and claims that an abortion or sterilisation operation is in the best interest of a child are likely to be among them - a conflict between the interests of the parents and the child may arise. In such a case, the application of established and fundamental principle will deny the right of the parents to consent to the operation or treatment. If an operation or treatment is to be performed or carried out in such a case, only a court of general jurisdiction exercising the parens patriae jurisdiction or the Family Court acting under s 64(1)(c) of the Family Law Act 1975 (Cth) can authorise the operation or treatment. In such a case, the consent of the court has the same effect in law as a valid consent given by a parent or a child with the requisite capacity.

The effect of the Family Law Act

A question arose in this case as to whether Family Law Act 1975 (Cth) conferred a "welfare" jurisdiction on the Family Court equivalent to or extending beyond the parens patriae jurisdiction of the Court of Chancery. For the reasons given by Mason CJ, Dawson, Toohey and Gaudron JJ., I am of the opinion that that Court does have a jurisdiction similar to the parens patriae jurisdiction. I am also in general agreement with what their Honours have written concerning the construction, operation and effect of the provisions of the Family Law Act. The Family Court has power, therefore, to give a lawful consent to the carrying out of operations or the rendering of medical treatments in situations where parents are unable or unwilling to act or where there is no person who can give consent on behalf of the child. In addition, I agree with the statement of Nicholson CJ in the Full Court of the Family Court that s. 63E(1) of the Family Law Act "does no more than confer upon the guardians of the child, the normal incidents which the common law confers upon a guardian" ^[F301] .

Parental consent to sterilisation

In principle, no reason exists for denying to parents the power to consent to the sterilisation of a child in their custody. Public policy does not prevent a person from consenting to an operation which will irreversibly sterilise that person ^[F302] . Since the parent is the person whom the law entrusts with the power and authority to consent to surgical and medical treatment for the welfare of a child, logically the parent must have the power and authority to consent to any operation or treatment for the welfare of the child which is not contrary to law or public policy.

In the United States, however, courts have consistently held that parents do not possess the authority to consent to the sterilisation of their children ^[F303] . Moreover, in Stump v. Sparkman ^[F304] the United States Supreme Court appeared to approve the decision of the Indiana Court of Appeals in AL v. GRH which held that parents had no authority to consent to the sterilisation of their child. The reasons given for rejecting parental consent as sufficient authority for sterilising a child include the history of abuse of sterilising the intellectually disabled - particularly the fear that they will be sterilised for the convenience of the guardians; the destruction of "an important part of a person's social and biological identity - the ability to reproduce"; and the irreversibility of the procedure. The effect of the blanket rule applied in the United States, however, is that parents cannot consent to an operation which results in the sterilisation of a child even though the procedure is necessary to remove or treat a diseased reproductive organ.

Understandable as the United States approach is, as a matter of principle, a line cannot be drawn between sterilisation procedures and other forms of surgical and medical treatment. It is true, as Holmes said ^[F305] :

"The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed."

But none of these matters provides any sure ground, in my respectful opinion, for a court to hold that sterilisation procedures should be treated as an exception to the rule that parents can consent to medical treatment and surgical procedures involving their child. If the consensus of the community was that parents ought not to have an unsupervised right to consent to the sterilisation of children, it might be proper to mould common law doctrine to give effect to that consensus, even though the demands of legal principle suggest a contrary course. It might be proper, therefore, to hold that parents cannot give consent to such a procedure without the consent of a court. But as no community consensus on the issue exists, and as the subject of sterilisation "gives rise to moral and emotional considerations to which many people attach great importance" ^[F306] , the proper course for a court is to give effect to established principle instead of laying down a rule which gives effect to what that court thinks is the best social solution to the issue.

In any event, the social utility of requiring the consent of the court in all cases of sterilisation is debatable. Beneficial as such a course may prove to be in some cases, it would require a depressing view of the discharge of the responsibilities of parents and doctors to conclude that the unnecessary sterilisation of children is so widespread that a blanket rule is the only remedy which can protect children from the abuse of their right to bodily integrity. This is especially true in an era when litigation is always expensive and frequently protracted with the result that, in cases where sterilisation is warranted, applications for consent might not be made. Moreover, as Lord Brandon of Oakbrook pointed out in In re F ^[F307] if every sterilisation operation required curial consent "the whole process of medical care for such patients would grind to a halt". A better remedy for the protection of children than requiring curial consent in all cases of sterilisation is the development of objective standards which the courts can supervise and enforce where necessary. Such standards will promote certainty and consistency in decision making. They will also enable parents to give a valid consent to an operation which will sterilise their child without the cost and trauma associated with litigation.

It follows that, as a matter of principle, a parent has authority to consent to the sterilisation of a child in his or her custody if it will advance or protect the welfare of the child. What is in the best interests of the child is conventionally seen as being synonymous with the welfare of the child. To say that a medical or surgical procedure is in the best interests of a child, however, is merely to record a result. Before the best interests of the child can be determined, some principle, rule or standard must be applied to the facts and circumstances of the case ^[F308]

Since sterilisation has grave consequences for a person's adult life, it cannot be in the best interests of a child to pre-empt a choice about that procedure which the child would otherwise have as an adult person. If there is any real possibility that, at some future time, the child will acquire the capacity and maturity to choose whether he or she should be sterilised, the carrying out of that procedure cannot be in the best interests of the child unless, of course, protection of the child's health urgently requires that the procedure be carried out during incompetency. Moreover, it must not be assumed that, simply because the child is intellectually disabled, he or she does not have or cannot acquire the capacity to consent to sterilisation. Intellectually disabled persons will frequently have the capacity to make the choice as to whether they should be sterilised ^[F309] . Furthermore, sterilisation involves invasive procedures resulting in the permanent deprivation of a person's right or liberty to reproduce, with the potentiality for psychological harm including the lowering - perhaps the destruction - of self-esteem and, in the case of the intellectually disabled, the reinforcement of anxieties which are commonly the result of intellectual disability ^[F310] .

So grave are the certain and potential effects of sterilisation that that procedure can only be for the welfare of the child if the circumstances are so compelling and so likely to endure that they justify the invasive surgery or procedure involved in sterilisation. The circumstances may be compelling if the failure to carry out the procedure is likely to result in the child's physical or mental health being seriously jeopardised or if it is likely to result in the suffering of pain, fear or discomfort of such severity and duration or regularity that it is not reasonable to expect the child to suffer that pain, fear or discomfort. In these cases, the right of the incompetent person to have his or her body protected against invasive procedures resulting in removal or destruction of reproductive organs is outweighed by the necessity for appropriate "treatment". The circumstances may also be compelling if the failure to carry out the procedure is likely to result in a real risk that an intellectually disabled child will become pregnant and she does not, and never will, have any real understanding of sexual relationships or pregnancy. In such a case, to speak of a fundamental right of reproduction is meaningless. The human dignity of an intellectually disabled child is not advanced, and indeed is denied, by allowing her (by, what is in point of law, rape) to become pregnant and to give birth in circumstances which she cannot understand and which may result in a frightening ordeal for her not only at the time of birth, but for many months prior thereto.

What constitutes sufficiently compelling circumstances to justify sterilisation will have to be worked out on a case by case basis. But, unless the case falls within one of the above categories or a category analogous thereto, it should be held that the sterilisation of a child is not for his or her welfare. In particular, it is not for the welfare of an intellectually disabled child to sterilise that child merely to avoid pregnancy or to give effect to eugenic policies. Nor is it for the welfare of the child to sterilise her merely because of the hygiene problems associated with menstruation. As the Law Reform Commission of Canada has pointed out, intellectually disabled females who require a great deal of assistance in managing their menstruation are already likely to require assistance with urinary and faecal control, problems which are much more troublesome in terms of personal hygiene ^[F311] . Moreover, even if the case falls within one of the three categories which I have mentioned or an analogous category, it is not in the best interests of a child to sterilise him or her if the harm can reasonably be avoided by means less drastic than sterilisation.

Furthermore, as I have indicated, sterilisation is one area where the potential for conflict between the parent's interests and the child's interest exists. As Justice Horowitz pointed out in Matter of Guardianship of Hayes ^[F312] :

"unlike the situation of a normal and necessary medical procedure, in the question of sterilisation the interests of the parent of a retarded person cannot be presumed to be identical to those of the child."

Thus, parents may see sterilisation as relieving them of the worry and distress of the child becoming pregnant or of the burden of caring for a grandchild whom the child would not be able or fully able to care for. If a decision to consent is actuated by interests such as these, a conflict of interest arises. In such a case, the parents have no authority to consent to the sterilisation of their child. However, since parents have authority to consent to a sterilisation procedure only in cases where the grounds for the procedure are compelling it is unlikely that, in practice, conflict will arise. If it does, a court of general jurisdiction invested with the parens patriae jurisdiction or the Family Court may give consent in substitution for the parents.

The principles which apply to the sterilisation of children, as I have adumbrated them, fall somewhere between the approach of the Supreme Court of Canada in Re Eve ^[F313] and the approach of the House of Lords in In re F. In Re Eve, the Supreme Court held that, in the exercise of the parens patriae jurisdiction, a court should not give consent to a non-therapeutic sterilisation. The distinction between therapeutic and non-therapeutic treatment was strongly criticised by members of the House of Lords in In re B (A Minor) ^[F314] . I agree with Professor Kennedy, in the article to which I have earlier referred, where he said ^[F315] that, although "there are problems at the edges" of the two concepts, "(a)n intervention is therapeutic if treatment (therapy) is intended thereby." This definition would include the first two categories of justification to which I have referred but exclude the third category. However, for the reasons that I have already given, I think that, where the child has no real understanding of sexual relationships or pregnancy, sterilisation may be justified if no method of contraception is reasonably feasible. In that respect, I would go beyond the approach of the Supreme Court in Re Eve. Moreover, it would be inconsistent with the historical development of common law principles to close the categories to which they apply. Consequently, unlike the Supreme Court of Canada, I would hold that sterilisation may also be carried out for purposes which are analogous to the three categories to which I have referred. Such an approach allows the law to develop incrementally, guided by the overarching principle that the circumstances must be so compelling that they justify such an invasive procedure as sterilisation.

In In re F, the House of Lords held that sterilisation of an incompetent child was justified if it was necessary or in the public interest and that it would be in the public interest if the procedure was in the best interests of the child. Their Lordships held that it will be in the best interests of the patient if a doctor has formed the opinion that sterilisation should be carried out provided that that opinion corresponds with a respectable body of medical opinion among those experienced in the field. Their Lordships (Lord Griffith dissenting on this point) held that the involvement of a court was highly desirable as a matter of good practice although it was not necessary as a matter of law. The approach of their Lordships goes well beyond what I consider is the proper view of the common law, even when the decision to sterilise is ultimately made by a court.

In effect, the approach of their Lordships transfers the issue to the medical profession for determination. As Professor Kennedy points out ^[F316] , once the doctors approve the procedure, the court gives its consent to the procedure on the basis of what the doctors and social workers "regard as important or significant". In substance, as Professor Kennedy asserts ^[F317] :

"The courts will be presented with a fait accompli. Those who wish to challenge it will have what amounts to a near impossible task. They will have to persuade the court to reject, wholly or in part, the evidence of the 'experts', evidence that is often unanimous and which has all the trappings of expertise. It will be too late to argue that the answers may be wrong because the questions were wrong."

Whatever may be the position in England, the approach of their Lordships is not consistent with the common law of Australia.

The law of the Northern Territory

So far I have dealt with the question of the common law rights of the parent to consent to a sterilisation procedure. In New South Wales ^[F318] and South Australia ^[F319] the common law position in relation to children is altered by legislation. In the Northern Territory, s 21 of the Adult Guardianship Act 1988 (NT) requires that curial consent be obtained for the sterilisation of an intellectually disabled adult, but no specific legislation regulates the sterilisation of minors. Consequently, the lawfulness of a consent to the sterilisation of a minor in the Northern Territory depends upon the common law, subject to any general statutory provisions which are applicable to such cases.

Section 188 of the Criminal Code Act 1983 (NT) makes an unlawful assault an offence. Section 187 defines "assault" to mean, inter alia, the direct or indirect application of force to a person without his or her consent. But "assault" does not include "medical treatment ... reasonably needed". The removal of the uterus or ovaries of a female would also be an indictable offence under ss 181 and 186 of the Code unless it was an act or event authorised "in the exercise of a right granted or recognised by law" ^[F320] or "subject to subsection (3), pursuant to authority, permission or licence lawfully granted" ^[F321] . Subsection (3) of s 26 provides that a person cannot authorise or permit another person to cause him or her grievous bodily harm "except in the case of medical treatment". Neither in terms nor in principle do these provisions make unlawful any consent to the sterilisation of a child which would be lawful at common law. Thus, it would be a "defence" to a charge brought under any of these provisions in respect of the sterilisation of a minor that the procedure was authorised by the common law. For the reasons I have already given, a consent given by the Family Court is also a "defence" to any such charge.

The question stated

I would answer the question stated to the Full Court by Nicholson CJ as follows:

Q.(1) Can the Applicants as joint guardians of the child (Marion) lawfully authorise the carrying out in the Northern Territory of a sterilisation procedure upon the said child without an order of a court?

A. Yes, if the circumstances are so compelling that the welfare of the child justifies the invasive procedure involved, there is no real possibility that in the future Marion will acquire the capacity and maturity to choose whether she should be sterilised, and in giving their consent the Applicants do not have any conflict of interest with her interests.

Q.(2) If no to question 1, does the Family Court of Australia have jurisdiction:

(a)

to authorise the carrying out of such a procedure; or

(b)

to enlarge the powers, rights or duties of the Applicants as guardians of the said child to enable them to lawfully authorise the carrying out of such a procedure; or

(c)

to approve the consent of the Applicants, as guardians of the said child, to the proposed procedure to make the procedure lawful?

A. (a) Yes if the Applicants are disqualified from giving consent.

(b)

No.

(c)

The Family Court may make a declaration as to lawfulness of a proposed procedure of sterilisation.

Q.(3) Which (if any) of the steps referred to in (a), (b) or (c) of question 2 is required by law?

A. Step (2)(a) is required if the parents are disqualified from giving their consent.