George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Hansard source

Before coming directly to that question, might I say that your construction of the way this provision—the best interests of the child provision—would work in relation to the objects clause in section 104.1 is wrong. As a matter of statutory construction an objects clause will have regard to by a court to understand the broad objectives of the statute, but it is a principle that the particular qualifies the general. You are right to say that the objects clause does not include a reference to the best interests of the child, but where there is a specific and imperative requirement that the best interests of the child be considered, then they must be considered, notwithstanding what may be said in more general language in the objects clause. Proposed section 104.4(2A) is in imperative terms. It says:

In determining what is in the best interests of a person for the purposes of paragraph (2)(b), the court must take into account the following—

factors. It is not a discretion; it is an obligation. The reference to (2)(b) requires a primary consideration to be the best interests of the person. It is a little inapt to describe a 17-year-old as a child, but the person 'between the ages of 14 to 17 years' is a primary consideration to which the court must have regard.

Coming to your specific question, there is no actual prohibition on the court making a control order which might have the consequence that a particular person in the age range of 14 to 17 is required not to attend school, but the court must turn its mind to that matter in its consideration of where the best interests of the person lie. Let me give you a very practical example. Let us say there were to be a case where a particular school itself was the source of the radicalisation because there existed, in that particular school, a hate preacher or proselytiser or a recruiter, and it was in the best interests of the child, or the young person—the person in secondary school as it would be—to be taken away from that particular school. That might be in their best interests. There is not a specific statutory prohibition of the kind that you specify, but I think I have explained the way in which the scheme of the bill deals with the issue of concern to you.