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3.4.6 Category 6: Where the court sits as parens patriae

  1. Parens patriae, meaning ‘parent of the state’ or ‘parent of the nation’, is a doctrine that grants courts and other arms of government the inherent power and authority of the state to protect persons who are legally unable to act on their own behalf. The doctrine is often invoked for wards of the state and persons with mental illness.
  2. In Hogan v Hinch (2011) 243 CLR 506, French CJ noted the qualification to open justice in circumstances where the court sits as parens patriae at [21]:

    The jurisdiction of courts in relation to wards of the state and mentally ill people was historically an exception to the general rule that proceedings should be held in public because the jurisdiction exercised in such cases was 'parental and administrative, and the disposal of controverted questions ... an incident only in the jurisdiction'.

  3. This category was also noted in:
  4. Closed court orders are usually made in this type of case. See e.g. Hogan v Hinch (2011) 243 CLR 506 and John Fairfax Publications Pty Ltd v Attorney General (NSW) (2000) 181 ALR 694.This category no longer carries much practical significance. In W, Re; Publication Application (1997) 137 FLR 205 the Family Court explained at 799:

    Wardship cases and cases where a court is concerned with the responsibility for a child invoked by the Queen as parens patriae are no longer of great practical significance in this context. The Family Court's jurisdiction now covers virtually the whole of the relevant jurisdiction relating to children, including under its ‘welfare’ jurisdiction what would previously have been regarded as the wardship or parens patriae jurisdiction: see Re Z (1996) 20 Fam LR 651 ; FLC 92–694 at 83,230 and 83,264–5, and the court's general practice is to hear those proceedings in open court but with a power in an appropriate case to place limitations or restrictions on that. It may not ordinarily do so in its ‘welfare’ jurisdiction although it may more readily do so in the medical procedure cases within that jurisdiction. Relevantly, State Supreme Courts retain little residual power in this area: see Re Z at 83,265 and, as we understand it, that jurisdiction is normally exercised in open court but with appropriate power to close the court if the circumstances of the individual case justify that.

Last Updated: 6 February 2019

See Also

3.4 Ground 1: Administration of justice

3.4.1 Category 1: Protecting the jury from prejudicial information or ensuring a fair trial for the accused

3.4.2 Category 2: Protection of trade secrets and similar information

3.4.3 Category 3: Informers, undercover police operatives and police methods

3.4.4 Category 4: Blackmail, extortion, sexual servitude and slavery cases

3.4.5 Category 5: Proceedings not in the ordinary course of litigation