Ausn Catholic Bishops Conf & Anor, Ex parte - Re Sundberg
[2001] HCATrans 308
IN THE HIGH COURT OF AUSTRALIA
Registry No C22 of 2000
In the matter of -
An application for Writs of Prohibition Certiorari and Mandamus against THE HONOURABLE JUSTICE ROSS ALAN SUNDBERG, a Justice of the Federal Court of Australia
First Respondent
DR JOHN McBAIN
Second Respondent
Ex parte –
AUSTRALIAN CATHOLIC BISHOPS CONFERENCE and the AUSTRALIAN EPISCOPAL CONFERENCE OF THE ROMAN CATHOLIC CHURCH
Applicants/Prosecutors
Office of the Registry No C6 of 2001
In the matter of -
An application for Writs of Prohibition Certiorari and Mandamus against THE HONOURABLE JUSTICE ROSS ALAN SUNDBERG, a Justice of the Federal Court of Australia
First Respondent
DR JOHN McBAIN
Second Respondent
Ex parte –
THE ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA AT THE RELATION OF THE AUSTRALIAN EPISCOPAL CONFERENCE OF THE ROMAN CATHOLIC CHURCH
Applicants/Prosecutors
GLEESON CJ
GAUDRON J
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON TUESDAY, 4 SEPTEMBER 2001, AT 10.23 AM
Copyright in the High Court of Australia
__________________
MR D.F. JACKSON, QC: If the Court pleases, I appear with my learned friends, MR J.A. McCARTHY, QC and MR M. CHRISTIE, for the applicants/prosecutors in C22 of 2000 and for the applicant in C6 of 2001. (instructed by Dibbs Barker Gosling)
GLEESON CJ: There is a certificate from the Deputy Registrar that she has been informed by the Deputy District Registrar of the Federal Court of Australia that the first respondent does not wish to take part in these proceedings and will abide by the decision of the Court.
MS F.P. HAMPEL, QC: If the Court please, I appear with my learned friend, MR S.J. MOLONEY, for the second respondent, Dr John McBain, in both matters. (instructed by John W. Ball & Sons)
MR R.G. ORR, QC: If the Court pleases, I appear with my learned friend, MS R. SOFRONIOU, for the Attorney‑General of the Commonwealth who intervenes in these proceedings. (instructed by the Australian Government Solicitor)
MR R.J. ELLICOTT, QC: If the Court pleases, I appear with my learned friend, MR A.J. TUDEHOPE, for the Australian Family Association intervening. (instructed by O’Hara & Company)
MR C.M. MAXWELL, QC: If the Court please, I appear with my learned friend, DR K.L. EMERTON, for the Women’s Electoral Lobby (Victoria) Inc, intervening. (instructed by Blake Dawson Waldron)
MR B.W. WALKER, SC: May it please the Court, I appear with my learned friend, MS K.L. EASTMAN, for the Human Rights and Equal Opportunity Commission intervening in C22 of 2000 and seeking leave to intervene C6 of 2001. (instructed by Human Rights and Equal Opportunity Commission)
MS D.E. PURCELL: May it please the Court, I seek leave to appear as amicus curiae.
GLEESON CJ: Now, Ms Purcell, we will deal with your matter in a moment. The first question is this: does anybody oppose the applications for leave to intervene in the second matter that are made by the people who have already been granted leave to intervene in the first matter?
MR JACKSON: No, your Honour.
GLEESON CJ: Very well, in each case the applicants have that leave. Now we will deal with your application, Ms Purcell. Would you come to the centre please.
MS PURCELL: If it please the Court. I am seeking leave to intervene as amicus curiae ‑ ‑ ‑
KIRBY J: Could you speak up? I am afraid I cannot hear you.
MS PURCELL: I am seeking leave, your Honours, to intervene as amicus curiae with WEL. I have been with WEL, but I am seeking leave as amicus curiae arguing section 117 of the Constitution.
GLEESON CJ: Now, the Women’s Electoral Lobby (Victoria) s represented by Mr Maxwell.
MS PURCELL: Yes, that is right.
GLEESON CJ: And you want to appear in addition to them?
MS PURCELL: Separate from them.
GLEESON CJ: Yes. Now, why should we give you that leave?
MS PURCELL: I would like to argue section 117 of the Constitution, your Honour.
KIRBY J: You set out your argument on this point in the written submissions.
MS PURCELL: Yes.
KIRBY J: If you were given leave to intervene – it is in a sense a short point – would you want to say any more than you have put in your written submissions?
MS PURCELL: I do not think so, your Honour, no.
KIRBY J: Well, if the Court limited you to what you have said in the written submissions or any supplementary written note, then it would not take up the time of the Court.
MS PURCELL: Correct, your Honour. I would just like to say one point though before I finish, is that this case is not about abortion, your Honour, it is about creation, and no one in our case is advocating against marriage or families.
GAUDRON J: Now, it is not entirely accurate to say, is it, Ms Purcell, that if you were allowed to rely on your written submissions, it would not take up the time of the Court because, in fact, people would have to deal with it, the parties at least would have to deal with it, would they not?
MS PURCELL: Yes, your Honour, that is correct.
KIRBY J: You would not take up the time of the Court, some others might try to take up the time of the Court.
MS PURCELL: Yes.
GLEESON CJ: Is there anything else you wish to say in support of your application for leave to intervene?
MS PURCELL: Just a couple of points, your Honours, if I may, that Justice Sundberg of the Victorian Federal Court graciously allowed the Catholic Bishops to have standing as amicus curiae in that matter to represent their submissions regarding best interests of the child, embryo storage and religion. Now, not everybody in Victoria would agree with Catholic dicta. Nevertheless, they were given their standing. They were displeased with the outcome of the case and so they interposed themselves between all the litigant parties in that matter, so that those submissions could be heard again.
Another point to consider, I was thinking, is that the circumstances of the Victorian Infertility Treatment Act, which Victorian counsel will be better to describe to you, was it introduced into Victoria too prematurely, in an era of exponential change in reproductive medicine? That may have been the case. Also, what influences allowed that legislation into being down in Victoria? The answer may be the influence of the Catholic Bishops who are here today to intervene. Legislation should not be influenced more strongly by any one group or religion. Of course, the Catholic Church makes a fine contribution in all spheres of life, but it should not seek to domineer or hector people into believing things that they do not agree with. IVF practices are not illicit practices. They are gruelling, they are expensive and they have a low success rate, but they also have great potential for joy. They are becoming more widely available. A 60-year-old woman in Europe has given birth and a 50-year-old US celebrity has ‑ ‑ ‑
KIRBY J: That is all in your written submissions.
MS PURCELL: Finally, just one controversial point, which, with respect to the Catholic Church, that they may consider, is that even with the immaculate conception of the Virgin Mary, she was unmarried. Is that an illicit practice? I think that is all I have to say, your Honours.
GLEESON CJ: We will not go into the difference between the immaculate conception and virgin birth. Thank you, Ms Purcell. Take a seat.
A majority of the Court is of the view that the application should be refused.
Yes, Mr Jackson.
MR JACKSON: Your Honours will have a timetable that the parties have discussed and agreed upon, subject, of course, to the Court, but as requested by Justice Gummow at the directions hearing. Your Honours, before I go to our submissions, my learned friend, Mr Maxwell, just wishes to mention one matter to the Court.
GLEESON CJ: Yes, Mr Maxwell.
MR MAXWELL: If the Court pleases, I am indebted to my learned friend. Your Honours, in our preparation we found it of assistance to prepare a table in which we have set out what we understand to be the prosecutors’ propositions and we have tried to depict on it the positions of each other party on those propositions and for the assistance of the Court I would hand up the document. It might best be regarded at this stage, your Honour, as a work in progress. It is not an agreed document but so far there has been no strong objection to it. If the Court indicated that it was of assistance to have a document like this, then we would seek to have it formally agreed to by the parties. If your Honours please.
GLEESON CJ: Yes, Mr Jackson. You will, presumably, although taking your own course, at some stage be dealing with the question of the position of the Federal Court in relation to the procedure that has been adopted in these matters.
MR JACKSON: Yes, your Honour. Your Honour, could I indicate the course, broadly speaking, I propose to take. It is this. I intend to go first to a question arising about the constitution of the proceedings. Having done that, then to move, your Honours – because time does not permit me to deal orally with every aspect of the case, I propose to deal with the matters that lie at the heart of it and they are the substantive issues of inconsistency and “validity” – I put it that way for a reason I will come to shortly – and then ‑ ‑ ‑
McHUGH J: But, Mr Jackson, one problem that might be regarded as at the very heart of the case is whether or not you can challenge by way of certiorari a decision between parties neither of whom now wish to amend or challenge that decision and, on one view, does it not throw up an important question about the relationship of this Court to the Federal Court and other courts in the federal system?
MR JACKSON: Well, of course, it does, your Honour, with respect. Yes, your Honour, I accept that. I accept that it ‑ ‑ ‑
McHUGH J: But is it not at the heart of the argument?
MR JACKSON: Well, your Honour, I do not mind in what order I deal with the matters, but what I had intended to do was to go first to the question of the constitution of the proceedings, meaning by that that there needs to be an extension of time in relation to the related proceedings, and some related matters. Having done that, then to go to the question of the nature of the inconsistency that was found and our submissions in relation to that. Then having done that, then come to the question of the availability of relief, and in dealing with that, deal with the question of the availability of relief (a) against the Federal Court, and (b) by the Attorney‑General and by other persons.
GAUDRON J: From my point of view, Mr Jackson, I do not see how you can separate the availability of relief from the way in which the proceedings are constituted. It does not seem to me that the issues are distinct at all.
MR JACKSON: Your Honour may be right in a sense, but there is really two, I suppose, broad issues, one being the question of whether – the substance of the matter, one being the question of the procedures and forms of relief that relate to it. Your Honour, I do not mean to do that to try to define them in any particular exact way at the present, but I accept the fact that there are relationships between the two.
KIRBY J: Could you just clarify the nature of the two bodies that you appear for? One is called the Church and one the ‑ ‑ ‑
MR JACKSON: Yes, your Honour, I was going to do that now. Your Honour, may I go to the perhaps uncontroversial aspect first of all, and that is the constitution of the proceedings. There are, as your Honours will see from the materials, two applications. One, No C6 of 2001, is the later, and it is by the Attorney‑General at the relation of an incorporated body, that body being the Australian Episcopal Conference of the Roman Catholic Church. It is referred to at page 1 of the record in paragraph 1.
The other, your Honours, is the proceeding C22 of 2000 and it is by two persons – may I perhaps call them the prosecutors for brevity – one being the body which is the relator in the proceedings I have mentioned already, that is the incorporated body; the other being the Australian Catholic Bishops’ Conference, which is an unincorporated body consisting of Australian Catholic Bishops, as you would expect from the name.
Now, your Honours, so far as the proceedings are concerned, could I take your Honours to our consolidated written submissions, paragraph 101? Now, your Honours will have seen that two fiats have been granted. One of them on 10 August 2001, which referred specifically to “relief under s 75(v)”. The second, and this is paragraph 105, and your Honours there is a typographical error - it should read:
Following the grant of the first fiat -
“the” -
Attorney‑General -
“at” -
the relation of the Australian Episcopal Conference of the Roman Catholic Church brought a second application to the Court at the request of the Attorney‑General.
The reason, your Honours, for the second fiat was that an issue was raised at one of the directions hearings on whether the first fiat was amply wide enough to cover proceedings in the original jurisdiction other, perhaps, than section 75(v) proceedings.
GLEESON CJ: Now, Mr Jackson, in relation to your application for an extension of time, it would be convenient for us if you, and anybody else who wants to do so, address your arguments on that point and we will deal with the matter when we give our final reasons.
MR JACKSON: Thank you, your Honour. Your Honour, what I was going to say in relation to that, your Honours will see that an extension of time is sought for the proceedings in relation to certiorari and mandamus. It is dealt with in paragraphs 105 to 108 of those written submissions.
GUMMOW J: I do not seem to have the second fiat, Mr Jackson. It is said to be attached but it does not seem to be. It might be interesting reading.
MR JACKSON: It is a matter that I have checked - could I give your Honours copies of those now? Your Honours, perhaps I could have copies distributed to the Court. I understood your Honours to have them.
Your Honours will see there are the two fiats. The position is, as your Honours will see from paragraph 105, that the material by which the application was instituted is the same as that relied upon in the other matter. The notice of motion – this is paragraph 106 – makes an application for an extension of time in which to seek the issue of the writs in respect of certiorari and mandamus. The Court has power to do so. We refer to two provisions in paragraph 107.
GAUDRON J: It may have power, but do you not face the very considerable hurdle for the extension of time that you elected not to become interveners in the Federal Court, as a consequence of which you would have had a right of appeal? You elected not to put the argument that you now seek to put about invalidity in the Federal Court. I would have thought that notwithstanding the other curiosities of these proceedings, there was some sort of estoppel running around there.
MR JACKSON: Your Honour, so far as the question of validity is concerned, your Honour will see – and I will have to come to this – that the issue raised is in a sense validity by construction, as it were, because the terms of section – I am sorry, I will say two things as to that. The first question is one which does not involve validity at all. That is the question of the interpretation of the Sex Discrimination Act.
GAUDRON J: Yes. To that extent you are simply replicating the proceedings and I would have thought there might be an argument that could bring the second proceedings in respect of precisely the same issue that you have in the first was close to an abuse of process.
MR JACKSON: With respect, on what your Honour has put to us, we were not parties in the original proceeding and on that assumption ‑ ‑ ‑
HAYNE J: But not parties by choice. You had notice of them and had an opportunity to participate, did you not?
MR JACKSON: We had an opportunity to participate, your Honour, but whether we might or might not have been allowed to intervene as a proper intervener is perhaps a difficult question. But the proceedings that we have before the Court now are ones where – when I say “we”, of course the Attorney‑General was not a party to the first proceedings.
GAUDRON J: No, the Attorney‑General did not even exercise his rights there. At least in so far as the second proceeding is concerned, you are the Attorney‑General; you are not the Catholic Bishops.
MR JACKSON: I appreciate that, your Honour. I was just, with respect, saying that, that the Attorney‑General in the second proceeding is seeking an extension of time and the extension of time is sought, the proceedings having been brought as soon as possible after the fiat was granted, and in those circumstances – perhaps I could start one stage back. The position was of course that objection was taken to the proceedings as proceedings originally brought on the ground there was no standing. That was raised by the people for whom Mr Maxwell appears. Once that happened, an application was made for a fiat, a fiat granted and the proceedings brought as soon as the fiat is granted. The substance of the matter is no different from that which was raised in the earlier proceedings. All that has happened is that a question of standing was raised and a question of standing has sought to be effected.
GAUDRON J: Well, you say that, but, I mean really, do we not have to look at you as the Attorney-General here today, not as the Catholic Archbishops?
MR JACKSON: Well, of course, your Honour.
GAUDRON J: Of course. You had rights, as the Attorney‑General, to intervene. You had a right, an absolute right, I think, to intervene if there was a constitutional issue in the Federal Court. As Attorney‑General, you elected not to exercise it. You had rights, as Attorney‑General, to have the matter removed into this Court at any time prior to the perfection of the order. You elected not to exercise them.
Now, looking at you as the Attorney‑General, where you have stayed away from the proceedings in which constitutional validity of the Federal Court was not raised, it seems to me a very odd matter that you come here as the Attorney‑General to raise an issue which was not in issue in the Federal Court proceedings. I would have thought if there was ever an important discretionary consideration, that was it.
If, on the other hand, you look at yourself as the Catholic Archbishops or the Australian Episcopal Conference, one has the situation that you did not raise this point below and by choice you sought only to become amicus. You did not pursue a right to become an intervener. Nor did you, I would have thought – I would have thought you also had rights at any stage before the order was perfected to yourself seek removal into this Court.
MR JACKSON: Well, with respect, your Honour, no constitutional issue being raised in the Federal Court, the Attorney‑General’s right to intervene was not enlivened.
GAUDRON J: Section 109 is a constitutional point. There was always a constitutional point in the Federal Court.
McHUGH J: And notices under 78B were given in the Federal Court.
MR JACKSON: I am sorry, I thought your Honour was talking about the question of validity ‑ ‑ ‑
GAUDRON J: Yes.
MR JACKSON: ‑ ‑ ‑ of the Sex Discrimination Act, but, your Honour, I accept that it was possible for the Attorney‑General, in the capacity of Attorney‑General for the Commonwealth intervening, to have done so. Now, your Honour, there is no obligation ‑ ‑ ‑
GUMMOW J: But your point is he would not have intervened to impugn legislation administered by one of his ministerial colleagues and that itself is a paradox in what is happening.
MR JACKSON: Yes, your Honour, and one would not expect, as your Honour said to me, the Attorney‑General to intervene to say the legislation is invalid. Now, your Honour, the second thing about it is that it is very common indeed for Attorneys‑General not to intervene in proceedings in courts below this Court and it very often happens that Attorneys‑General will not intervene unless a matter is in this Court.
GAUDRON J: But they will usually not then initiate the proceedings in this Court.
MR JACKSON: Well, your Honour, there is no ‑ ‑ ‑
GAUDRON J: Yes. One of the extreme curiosities here is that as Attorney‑General, in your Attorney‑General’s hat, you are seeking to initiate proceedings out of time to challenge the validity of your own legislation which in another hat you are going to defend.
MR JACKSON: No, I am not, your Honour, with respect. The Attorney‑General, in the Attorney‑General’s proceedings is not challenging the validity of any Commonwealth legislation because the fiat ‑ ‑ ‑
GAUDRON J: Do I correctly understand that there is no challenge to the validity of the Sex Discrimination Act?
MR JACKSON: In these related proceedings. It is only a question of inconsistency. That is the only issue raised in those proceedings and the relator and the other prosecutors in the other proceedings do raise the question of validity but not in the related ‑ ‑ ‑
McHUGH J: Your fiat is confined to C22?
MR JACKSON: No, your Honour, the fiats do not, in effect, nominate particular proceedings.
McHUGH J: Yes, they do.
MR JACKSON: Well, I am sorry, your Honour, but the second fiat is broader than the first, if I can put it that way.
McHUGH J: The fiat expressly refers to the proceedings C22 of 2000.
MR JACKSON: Well, your Honour, what it says is that an application for relief on the basis – and, your Honour, I am looking at the second one of 29 August:
is limited to an application for relief on the basis that the –
Act –
does not . . . apply to infertility treatment –
on grounds such as those set out in the draft order nisi in those proceedings.
GAUDRON J: So it is a partial fiat. Such a document I have never seen before.
MR JACKSON: Well, your Honour, it is a fiat which limits the type of proceeding that may be brought in relation to it.
McHUGH J: The whole case is a bit odd. I cannot ever recollect another case of litigation where a State does not defend its own legislation. That appears to have happened at first instance in this case. The State of Victoria neither conceded nor asserted inconsistency between the Commonwealth law and its law.
MR JACKSON: That is why we were seeking to defend it, your Honour. When I say “we”, I mean the person who is a relator and the other people. But, your Honour, could I just say ‑ ‑ ‑
GLEESON CJ: In all events, matter C6 of 2001 does not raise any question of the validity of the Commonwealth legislation.
MR JACKSON: That is so, your Honour, none at all.
GAUDRON J: But it is raised in the first.
MR JACKSON: In the other proceedings, yes.
GAUDRON J: As you understand the fiat, you have to deal with standing on that issue.
MR JACKSON: Yes.
GAUDRON J: Then the question is, why should we have two matters raising – well, two matters. I will withdraw the word “matters” because I think one of the questions at the heart of this case is whether, in truth, there is a matter. We have two proceedings directed to exactly the same issue.
MR JACKSON: There are two proceedings, your Honour, in that in the same ‑ ‑ ‑
GAUDRON J: The C6 of 2001 is directed to an issue which is precisely the same as one of the issues raised in the first.
MR JACKSON: Well, your Honour, the reason being that if there is not standing in the other matter, then the presence of the Attorney‑General at the relation of the party takes away the difficulty caused by the claim of no standing. That is the reason for it, your Honour, and really the only reason for it. Your Honour, that, in our submission, is not an abuse of process and, as we have sought to say in our written submissions, as your Honours will see in paragraphs 110 and following, what we would seek to achieve, if the Court were not prepared to grant the extensions of time, would then be that the Attorney‑General be added at the relation of the same party, be added as a party to the other proceeding. In those proceedings, we would submit that the applications having been made within time, that there should be no basis for objection to the Attorney‑General becoming a party to those proceedings.
GLEESON CJ: Now, Mr Jackson, going back to the basis on which C22 of 2000 was commenced, consistently with your argument, is it the case that if Justice Sundberg had decided the matter the other way in the Federal Court, Ms Purcell would have been able to commence proceedings of the kind that you have now commenced?
MR JACKSON: Yes, your Honour, yes, whether it be a question for discretion, whether any relief would be granted, but the answer would be yes.
McHUGH J: But that does seem a little odd, does it not, on one view, that you are not commencing independent proceedings to allege that the legislation is invalid so that it only affects you and, say, the Commonwealth or you and the State of Victoria or whoever the parties might be; but you are seeking to set aside a judgment between parties, both of whom are content to retain and maintain that judgment.
MR JACKSON: Your Honour, that would be exactly the same as the position that would obtain if, for example, an application were made by a person not a party to proceedings to seek section 75(v) relief by way of prohibition or mandamus.
HAYNE J: That assumes that such relief is available other than for want or excess of jurisdiction. At the core of your submission lies the proposition, does it not, that proceedings may be brought at the suit of a person not party to proceedings in the Federal Court to complain that the order made by the Federal Court within jurisdiction was wrong?
MR JACKSON: Assuming, your Honour, for error of law and ‑ ‑ ‑
HAYNE J: Yes, and that, whether or not the parties to the suit in the Federal Court are content with the outcome and say we have had enough of courts, we have an answer, we are going away. But you, as an external party, can disrupt their litigation.
MR JACKSON: Well, your Honour, the way in which your Honour puts it adds, if I may say so with respect, an emotive air to it in speaking in terms of disruption of it. Exactly the same situation would obtain, in our submission, if one had the Attorney‑General at the relation of any party seeking to obtain a writ of prohibition or mandamus in respect of a decision of a Federal Court.
McHUGH J: But in those cases the court has acted without jurisdiction.
MR JACKSON: I am sorry, your Honour. I was going to say, if one goes on from that then to cases where one is speaking about the jurisdiction of this Court being a jurisdiction that comes about because of section 30(a) of the Judiciary Act where jurisdiction has been conferred on the Court in matters arising under or involving the Constitution, one looks then to see what forms of relief are made available by the courts, the constating documents, as it were, constating statutes and so on. If one goes to that, your Honours, what one sees, and perhaps I can ‑ ‑ ‑
HAYNE J: Just before you go to that, Mr Jackson, who is the contradictor that generates the controversy that I identified? If you have parties who say, “We are content with what has happened in the Federal Court, we might not like it, but we are not taking it further”, who, in truth, is the contradictor in the matter that you say your application generates?
MR JACKSON: Your Honour, may I preface my answer by saying that one does not have to have, in our submission, a contradictor who necessarily themselves wishes actively to contradict. What one needs is to have parties who are persons who are in a position to contradict, if that be their choice. What I mean by that, your Honours, more specifically in the particular case, is that you have the persons who were parties to the original decision and – I put it that way, your Honour, the persons who were parties to the original decision.
McHUGH J: But is that an exercise of judicial power? Ordinarily, judicial power is concerned with determining controversies between parties. Now, you as a stranger come along and say, “Although the parties themselves are happy with the way their controversy has been settled, we want to unsettle it for them”.
MR JACKSON: Your Honour, judicial power, of course, is – that is part of judicial power, but if I could say two things about it. What your Honour has put to me represents part of judicial power. There are not necessarily controversies between parties that attract it. Most often there are, sometimes there are not. The other thing about it, your Honour, is this, however. Judicial power is, if one is speaking about jurisdictional questions, really the summation of the matters that are referred to in section 75 and section 76, and if one is looking to see a case such as the present, one sees that this Court’s jurisdiction, or this Court’s judicial power, derives from, in the first place, section 76(i) and section 30(a) of the Judiciary Act and, on the other hand, the claims for prohibition and mandamus which attract the Court’s jurisdiction under section 75(v).
GLEESON CJ: But what is happening now appears to be this, Mr Jackson. You wish to argue, in C22 of 2000, that the proceedings before Justice Sundberg from beginning to end were conducted on a false assumption. They were conducted on the false assumption of the validity of section 22 of the Sex Discrimination Act. They were conducted on that assumption because that is the way the parties chose to conduct the proceedings and nobody else, including your clients, made a submission to Justice Sundberg, for his consideration, that the assumption was false. Now, you may be right when you say that the proceedings were conducted on a false basis, but that is the way they were conducted.
MR JACKSON: Well, your Honour, that may affect the availability of relief on the validity question, but it does not, with respect, affect the inconsistency issue, and it is the inconsistency issue in relation to which we would seek to obtain the extension of time for the Attorney‑General proceedings.
GLEESON CJ: But it is the assumption on which the inconsistency issue arises. There is no problem of inconsistency if the Commonwealth statute is invalid.
MR JACKSON: Well, of course, your Honour, but when I say “invalidity”, I use the expression as I said before, “validity” in inverted commas, and the reason why I say that, your Honours, is because of the provision cannot be invalid in the fuller sense, because it has to be read down because of the operation of Sex Discrimination Act provision in section 9. What I mean by that is, if one goes to section 9 of the Sex Discrimination Act, your Honours will see that section 9(1), refers to some definitions, and the third of them is the definition of “prescribed provisions of Part II”.
One of the relevant prescribed provisions is section 22 of that Act. Your Honours, one then sees that section 9(4) says that:
The prescribed provisions of Part II, . . . have effect as provided by subsection (3) –
which does not matter for present purposes –
of this section and the following provisions of this section and not otherwise.
The provisions of section 9 then deal with a number of applications of the provisions of the prescribed provisions. The relevant one is section 9(10). When one goes to subsection (10), your Honours will see that it really “relates”, if I could put that in inverted commas, to the external affairs power, because:
If the Convention is in force in relation to Australia, ‑
as it is, ‑
the prescribed provisions of Part II . . . have effect in relation to discrimination against women, to the extent that the provisions give effect to the Convention.
Your Honours, the result is, that the provision has to be read as giving effect to the Convention.
GLEESON CJ: Do you draw a distinction between discrimination against women and discrimination amongst women?
MR JACKSON: Your Honour, I am not precisely sure what your Honour means by that, with respect, but what we do say is that we say discrimination against women is a defined term, and when one goes to the defined term it is then, effectively, as your Honour has I think said, and that is discrimination against women compared with men, as distinct from discrimination amongst, I suppose to put it shortly, women, because of their marital status or something else.
KIRBY J: No other source of power was relied on in this case, was it, except section 9(10). It the Convention?
MR JACKSON: No, well your Honour, that is so, your Honour, but it is also a reading down, if I could put it that way, because the way in which section - if one looks at the words of section 9(4), the concluding words “and not otherwise”, they are, in effect, an interpretation provision which means one then goes then to section 9(10) and one interprets “provisions” as provisions giving effect to the Convention.
GUMMOW J: I am not sure it is reading down, Mr Jackson ‑ ‑ ‑
MR JACKSON: I am sorry, your Honour ‑ ‑ ‑
GUMMOW J: It is attachment of a series of bases of power, is it not?
MR JACKSON: Yes, I am sorry, I was just referring to section 9(10).
GUMMOW J: Section 9 is designed to avoid reading down, is it not?
MR JACKSON: Your Honour, it is giving ‑ ‑ ‑
GUMMOW J: By a series of differential operations?
MR JACKSON: Yes, Your Honour. I am sorry, it gives a number of differential operations depending ultimately on various heads of power, and in doing that ‑ ‑ ‑
GUMMOW J: It is not an unusual provision?
MR JACKSON: No, your Honour, section 6 of the Trade Practices Act, it is common.
GUMMOW J: Yes, exactly.
GAUDRON J: Does this mean ultimately there is no constitutional - apart from 109, there is no constitutional provision, only a construction provision, in respect of which you seek certiorari?
MR JACKSON: Your Honour, it does come down to a question of construction, yes.
GAUDRON J: So if you can seek certiorari in this case, you can seek it in any case whether or not the Constitution is involved.
MR JACKSON: No.
GAUDRON J: If you can seek it for - let us assume for a moment, let us take it two steps backwards. Let us assume that you were granted leave to bring your second application out of time on terms that you amended your first application so that it did not cover the same grounds, leaving your second application one based on the Sex Discrimination Act only. Would you say you were entitled to apply for certiorari, whether or not you are the Attorney‑General? Let us assume you are the Attorney‑General.
MR JACKSON: Yes, your Honour, the answer is, yes. May I indicate why? Your Honour, could I just say that I do not suggest for a moment that every time some error in construction of a statute is made that it is a case for certiorari in this Court. What I do seek to say, however, is that this Court has, by virtue of section 75 and also by virtue of section 76(i), the 76(i) jurisdiction conferred by section 30(a), jurisdiction in a variety of matters including matters arising under the Constitution or involving its interpretation.
GAUDRON J: But does this arise under the - what I am asking is, if this is purely a construction point, as you seem now to be putting it, and as seems to me to be correct, whether - leave aside 109 and on the hypothesis I have put to you - we have hived that off into a separate matter - whether you can get - it does not seem to me that your argument is limited to certiorari in matters arising under the Constitution or involving their interpretation. It seems to me that your argument must go so far as to say, in any matter in which a Federal Court commits an error of law the Attorney‑General can, after the proceedings have concluded, and although no appeal is instituted, seek certiorari and so too can any person who can demonstrate a sufficient interest in the subject matter of the proceedings as to satisfy standing rules.
MR JACKSON: Well, your Honour, the position would be that one would have to say that it is a matter in which this Court has jurisdiction. What I was seeking to say earlier was that the Court would have jurisdiction under a number of - possibly in different cases. They may well be cases that attract the Commonwealth as a party - all sorts of things can arise and also may be - and, your Honours, this case may perhaps be one - a case in which, even though the question, if one treated it as a pure question of construction, would be a matter arising under a treaty because that is what the Convention is. Now, your Honour, I have been waiting for years to have such a case and maybe this is it.
KIRBY J: We did get one recently but only I saw it.
MR JACKSON: But, your Honour, so that ‑ ‑ ‑
KIRBY J: Is your submission that you could come here as of right with the fiat? All that stands between you and the Court is the time default and in resolving the issue of the time default, the Court has to concentrate on issues of time, not on other issues. Is that what you are putting? The problem is that once you need a benefit and once you need an exercise of discretion, you get into the question of whether the Court should give it and that takes the Court to these other issues as to whether - - -
MR JACKSON: Yes, your Honour. May I come back to your Honour and just answer it. I had not quite finished what I was going to say to Justice Gaudron. What I was seeking to say was this, that one has to, of course, have in the first place some jurisdiction of the Court that is invoked.
GAUDRON J: And a matter.
HAYNE J: First you have to have a matter.
MR JACKSON: Of course, your Honour.
HAYNE J: First catch your matter, then find jurisdiction to deal with your matter.
MR JACKSON: I was speaking in terms of sections 75 and 76(i). What we would seek to say is that the Court has jurisdiction in matters of that kind. When I say “matters of that kind”, all that one has to have, for example, under section 75(v), whatever might be the ultimate resolution of the case, is a matter in which relief of a particular kind is sought against the Commonwealth.
GAUDRON J: We certainly have a proceeding in which relief is sought, but for my part I am not entirely satisfied that we have a matter in which that relief is sought. That is not to say that I do not accept that a matter could very easily be constituted under section 75(i), (iii) and (v) or under 76(i) and (ii). I have no doubt you could easily constitute a matter. The question is whether you have one in this way that you have come about things.
MR JACKSON: Your Honour, the Attorney‑General in the related proceedings is seeking prohibition, certiorari and has instituted proceedings seeking prohibition, certiorari and mandamus against an officer of the Commonwealth.
GAUDRON J: First of all, can you seek prohibition against Dr McBain? I would have thought not.
MR JACKSON: Dr McBain ‑ ‑ ‑
GAUDRON J: You have sought prohibition against Dr McBain. I see nothing in 75(v) that says you can get prohibition against Dr McBain.
MR JACKSON: Your Honour, prohibition has been granted on a number of occasions by the Court in relation to persons who have been parties to proceedings where the officer of the Commonwealth has been a member of a court.
GAUDRON J: To perfect it. So then you come ‑ ‑ ‑
MR JACKSON: That is a question of the exercise of jurisdiction, your Honour, with respect, rather than its invoking in the first place.
CALLINAN J: You rely on section 32 of the Judiciary Act in that regard?
MR JACKSON: Yes, your Honour.
CALLINAN J: The question of giving complete relief?
MR JACKSON: Yes.
CALLINAN J: Although perhaps an injunction so far as the doctor is concerned might have been a more appropriate remedy than prohibition.
MR JACKSON: We have been informed that Dr McBain is not a treating doctor any more.
GUMMOW J: Yes, he was no threat.
GAUDRON J: That is right.
GUMMOW J: That is the last thing you would do is grant an injunction against ‑ ‑ ‑
GAUDRON J: He is not treating the lady who was party to the proceedings, who is not present here. The State, who is a party to the proceedings, does not appear here. I am perfectly happy with the idea that you could constitute a matter between yourself and the Commonwealth, but the question is: have you done it here?
MR JACKSON: Well, your Honour, we have sought, as I was saying a moment ago ‑ ‑ ‑
GAUDRON J: You have sought to interfere in the litigation that is completed.
MR JACKSON: Well, your Honour, that is what happens, of course, if one chooses to call it interference when the court orders, either by way of prohibition, mandamus or certiorari, against a person who is an officer of the Commonwealth.
GAUDRON J: It happens when the officer of the Commonwealth happens to be a federal judicial officer. It does not happen otherwise. It certainly does not happen, for example, if federal jurisdiction is being exercised by a State court, does it?
MR JACKSON: No, your Honour, not under section 75(v). However, your Honours will see at section 33(i), I think it is, of the Judiciary Act, if one goes to that, that that appears to contemplate specifically that writs of a nature perhaps like mandamus may be issued against State judicial officers and that that is so appears, if one goes to that provision, and your Honours will see section 33(1)(a) says that:
The High Court may make orders or direct the issue of writs:
(a) commanding the performance by any court ‑ ‑ ‑
“any court” –
invested with federal jurisdiction, of any duty relating to the exercise of its federal jurisdiction;
and your Honours will also see that that is said in a context where the provision also contains section 33(1)(c), that is, speaking of writs of mandamus, not the rather arcane action of mandamus, but the writ of mandamus and what is contemplated, your Honours, is that writs by section 33(1)(a) appear directly to be capable of being directed by the Court to State courts, at least, perhaps in federal courts too, exercising federal jurisdiction.
HAYNE J: Let it be assumed that you demonstrated an entitlement to mandamus. Let it be further assumed that Dr McBain and State of Victoria had been content with the outcome of the proceedings as revealed by the judgment of Justice Sundberg. What is to happen on the issue of mandamus?
MR JACKSON: Well, your Honour, involved in the issue of mandamus, of course, would be that the decision that had been made would then be set aside. Now the persons who were parties to those proceedings are all persons who have been served with the proceedings in this case. They choose or not to appear before the Court and to take an attitude or not, but the result would be that the decision would be set aside and the judge would be directed to determine the matter in accordance with this Court’s decision. That is all it would be, your Honour.
Could I just say, your Honours, that one is, of course, in the jurisdiction one is speaking about, dealing with - and if I could seek to make two observations, your Honours. One sees, of course, section 75(v) does not deal only with constitutional issues; the issues may not be constitutional at all. But a second thing, your Honours ‑ ‑ ‑
GAUDRON J: So could we issue an injunction to Justice Sundberg?
MR JACKSON: Well there is no reason why one could not, your Honour, in the appropriate case, because, your Honours, it would be very difficult to draw a distinction.
GAUDRON J: Well, let us consider that, because I do not see the word “certiorari” in 75(v).
MR JACKSON: No.
GAUDRON J: And yet, it seems to me, you have to get certiorari in this case to get anywhere.
MR JACKSON: I would adopt what your Honour is putting to me for the moment.
GAUDRON J: That is right, is it not?
MR JACKSON: That is the most appropriate relief. Your Honour, I accept that.
GAUDRON J: But it is not in 75(v).
MR JACKSON: No.
GAUDRON J: And it is the primary relief you seek.
MR JACKSON: Well, I accept that, again, your Honour, for the purposes of the argument.
GAUDRON J: Because to the extent that you seek mandamus in prohibition, you invert what is the normal procedure and you seek them as ancillary orders to certiorari, whereas certiorari is usually an ancillary order to the grant of mandamus or prohibition.
MR JACKSON: Well, your Honour, unless one quashes the decision, of course, then there is nothing to issue a mandamus in respect of because there is already ‑ ‑ ‑
GAUDRON J: There would be nothing to give it – you could not grant an injunction either, could you?
MR JACKSON: Well, your Honour ‑ ‑ ‑
GAUDRON J: Or could you?
MR JACKSON: Your Honour, I am sorry. It depends. I am not seeking an injunction in the particular case. What I was endeavouring to do was to respond to what your Honour was putting to me concerning 75(v). Now, if one assumes, as has been the case for many years, that the expression “officer of the Commonwealth” in section 75(v) includes a judge of a Federal Court, then there seems no especial reason why the words “injunction” do not apply as much in respect of such a person as they apply to mandamus or prohibition.
GAUDRON J: But you would have to get certiorari first before you could get an injunction in a case such as the one that you seek to convince us is a matter.
MR JACKSON: Well, your Honour, it may be, but if there is no reason, in our submission, why in accordance with the decisions dealing with the accrued jurisdiction of this Court this Court would not have the jurisdiction to do all the things that are necessary to arrive at to exercise its jurisdiction and section 32 of the Judiciary Act really embraces, in many words, that concept.
McHUGH J: Yes, but coming back to the question of judicial power that I put to you before, order 3 that was made by Justice Sundberg declared that:
The applicant may lawfully carry out a treatment procedure in respect of the fourth respondent notwithstanding that she does not satisfy the marriage requirement.
Now, you want to have that order quashed, which might involve Dr McBain being guilty of an offence against the law of Victoria. How does it come about that in the exercise of judicial power of an order made within jurisdiction by the Federal Court you, a complete stranger, can come along and have that quashed? Now, it is quite a different matter if, as Justice Gaudron said, you constitute a suit in this Court seeking some declaration that there is no inconsistency between the two laws, but you want to intermeddle in litigation between private parties.
KIRBY J: That was Justice Deane’s word, “intermeddle”, but for my own part I do not have quite the same problem that has been expressed. If you look on the writs as constitutional writs available to this Court if in private litigation between parties say the matter has been overlooked, I, myself, do not see a problem with this Court exercising its judicial power under the Constitution to issue a constitutional writ.
McHUGH J: So there can be no mistake about it, I am not putting to you anything about constitutional writs.
KIRBY J: Well, injunction would be a constitutional writ. I do not see why it is necessary to have certiorari. Injunction or the other constitutional writs come from this Court to uphold the Constitution which is a higher law.
MR JACKSON: What your Honour Justice Kirby has put to me reminds me that I omitted to refer to a further ‑ ‑ ‑
GUMMOW J: Justice McHugh’s point, I think, is that the matters he was putting were part of that higher law.
GLEESON CJ: Just a moment, what was it you omitted to refer to?
MR JACKSON: Well, your Honour, it is many things, I expect, perhaps maybe some by design too. But I was going to take your Honours to, of course, section 5 of the Constitution Act which says that the Constitution is “binding on”, amongst other things, “the courts, judges and people of every State”, et cetera.
McHUGH J: That includes the judicial power of the Commonwealth under section 71 of the Constitution.
MR JACKSON: Indeed, your Honour, and an element of the judicial ‑ ‑ ‑
McHUGH J: Binding on us.
MR JACKSON: Of course, your Honour, and it is a jurisdiction to be exercised as well as not exercised, with respect.
HAYNE J: And to be exercised in respect of a matter generated by the bare fact of your claim. The controversy that arises arises, at least as I understand your argument at the moment, only by reason of the fact that the parties for whom you appear make the claim. There is otherwise no controversy.
GAUDRON J: Make the claim that the decision was wrong.
MR JACKSON: Well, your Honour, the parties for whom I appear are two – I take it your Honour is referring to both proceedings?
HAYNE J: Yes.
MR JACKSON: The parties for whom I appear really have, I suppose, two capacities. One is that they were persons who were allowed to appear before the court and made submissions and were the persons who effectively did the actual contradicting of the argument before the primary judge, if I could use that expression.
GLEESON CJ: That is why I asked you the question a bit earlier about Ms Purcell. Your argument, as I understand it, is that if Justice Sundberg had decided the case the other way, Ms Purcell would have exactly the same standing as you claim in order to approach this Court to seek, in effect, to have the decision reversed.
MR JACKSON: Your Honour, she should have the same ability to appear. Whether the Court would grant the relief is a matter of discretion and an element of the discretion would be the fact that she had played no part, for example, in the proceedings before the judge. Now, it may be ‑ ‑ ‑
GLEESON CJ: Would that be a discretionary element for her or against her?
MR JACKSON: It may well be against her, your Honour.
GAUDRON J: It would be against the Attorney‑General on his fiat or the proceedings that you institute in his name.
MR JACKSON: Your Honour, except that the Attorney‑General is instituting the proceedings seeking to exercise rights to ensure that in relation to the Constitution there has not been error in a court exercising jurisdiction under the Constitution.
GLEESON CJ: Now, Mr Jackson, I want to be clear about the constitutional point that you are raising. I am looking at page 82 of the application book, paragraph (c). Is that an argument that section 22 of the Sex Discrimination Act of the Commonwealth is invalid, or is it an argument about the construction of section 22, or both?
MR JACKSON: I am sorry, your Honour said paragraph (c), was it?
GLEESON CJ: Paragraph (c) on page 82 of the application book.
MR JACKSON: Well, it is a construction argument, your Honour. When I say “construction”, what it involves is this. First of all it encapsulates a number of notions. The first notion, your Honour, is that it assumes that section 22 would apply to section 8, to put it shortly, or to the treatment in section 8. In saying that, it then would say that section 22(1) is not a valid law.
GLEESON CJ: But that is the entire assumption on which the proceedings before Justice Sundberg were conducted and decided, that section 22 applies to section 8 of the Victorian Act. That was the whole basis of his decision.
MR JACKSON: Well, your Honour, there was also the question, of course, about section 32. So the argument was that section 32 had an operation meaning that it did not apply. Could I say, your Honour, just so what we are seeking to say is clear. What we would seek to say is, first of all, if one treats the terms of section 22 of the Sex Discrimination Act as their words would say, discrimination on the ground of marital status, then to the extent that they would apply so as to be inconsistent with the terms of – in the Victorian Act - section 8 and others, the effect of section 32 of the Sex Discrimination Act is they do not apply.
So, your Honour, it is an argument based essentially on section 32 of the Sex Discrimination Act. That is the first argument, your Honours. The second argument is that the term “marital status” in section 22 is one that has to be read – I am sorry, your Honours, I am putting it badly. The terms of section 22 have to be read to accord with the terms of the Convention, and the Convention is one that does not deal with discrimination on the ground of marital status.
GLEESON CJ: So that is an argument which involves the proposition, as I would understand it, that if section 22 means what Justice Sundberg assumed it meant, the external affairs power does not sustain a Commonwealth law to that effect.
MR JACKSON: Your Honour, it is difficult to put it that way because of the terms of section 9(10) of the Act. Section 9(10) says that one has to read the Act, or section 22, consistently with the Convention, so that we do not say the Convention was one that the Commonwealth had no power to enter into, nor do we say that a law which implements the Convention, as section 9(10) would require one to read section 22 as doing, is ‑ ‑ ‑
GLEESON CJ: That sounds entirely like an construction argument.
MR JACKSON: Well, your Honour, it is ‑ ‑ ‑
GAUDRON J: And not only a construction argument, one which would well be within the Attorney-General’s fiat.
MR JACKSON: Your Honour, could I say we do not suggest it is, and it is not my understanding of the fiat that we have. And, your Honours ‑ ‑ ‑
GAUDRON J: Well, if it is a construction point, then the only question is inconsistency - the Attorney-General’s fiat covers it - and my next question will be – well, it will not be my next question – my question later in the course of proceedings will be to Mr Orr, as to why we can hear him on both sides on the same question.
MR JACKSON: Your Honour, could I say in relation to that that it is not the first time that has happened, and some references are ‑ ‑ ‑
GAUDRON J: It may not be the first time ‑ ‑ ‑
HAYNE J: I am not sure that that is right.
MR JACKSON: Your Honour, perhaps I will leave that to Mr Orr.
CALLINAN J: Mr Jackson, you accept for the purposes of this case that sexual discrimination is an external affair, or may be an external affair?
MR JACKSON: Yes. Your Honour, I accept that the Convention is within section 51(xxix) of the Constitution as being an external affair. I accept also that section 22, as read as required by section 9(10), is a law which is valid.
CALLINAN J: And there is no reliance or attempt to rely upon – the marriage power does not enter into it at all.
MR JACKSON: No.
McHUGH J: But it is a strange question of construction, is it not, because at its heart involves a constitutional rule.
MR JACKSON: A number of Members of the Court have said this is just a construction.
McHUGH J: I know.
MR JACKSON: It is not, your Honour, with respect. It is not.
McHUGH J: No, it is not. Well, I do not think it is.
MR JACKSON: It is a constitutional issue. It is a question to be decided in determining the inconsistency issue.
KIRBY J: But is not the problem that then arises, as I understood, that the Attorney‑General’s fiat – he was giving you the fiat only to allow you to argue matters of construction pure and simple, but once you invaded his realm of the Constitution, he was not ‑ ‑ ‑
MR JACKSON: I am sorry, your Honour, no. The fiat is to argue the inconsistency issues.
CALLINAN J: Which involves, in the first instance, a construction of the Commonwealth Act ‑ ‑ ‑
MR JACKSON: Yes.
CALLINAN J: ‑ ‑ ‑ or perhaps at the same time the Commonwealth Act by comparison with the State Act.
GLEESON CJ: It might be a little difficult to argue a question of construction of a Commonwealth Act without noticing the Constitution.
MR JACKSON: Well, your Honour, that may be so. I mean, there is no particular difficulty in the present case. The case really comes down, in our submission, to a section 109 case.
McHUGH J: But your argument has to be, has it not, that section 22 does not give effect to the provisions of the Convention because part of it goes beyond the provisions of the Convention.
MR JACKSON: Well, it does, your Honour, but because of section 9(10) one reads it – to say “down” is perhaps the wrong word, but one reads it in a way that is conformable with the Convention and so reading it, there is no inconsistency with the sections of the Victorian Act.
GLEESON CJ: But does that produce the practical consequence that if section 22 meant what Justice Sundberg assumed it meant, it would go beyond the Convention and be beyond power?
MR JACKSON: Well, your Honour, because he would be reading the Act the wrong way, yes, the construction ‑ ‑ ‑
McHUGH J: But that is the result.
MR JACKSON: Yes, but the point we would seek to make in the first place is that – and the first point, really, is exactly the point that Justice Sundberg decided, and that is if you take the terms of section 22 on their face, then read with section 32, which limits their operation, the case is not one to which the Sex Discrimination Act applies.
GLEESON CJ: Justice Sundberg seems to have approached the matter consistently with the way it was argued, as I would understand it, that the real question of construction was a question of construction, a question of the meaning of the Victorian Act. But your primary proposition, as I understand it, is that the real question of construction is not that at all. It is a question of the meaning and operation of the Commonwealth Act.
MR JACKSON: Well, your Honour, I do not, with respect, know that is quite right in relation to Justice Sundberg because your Honour will have seen that one of the issues ‑ ‑ ‑
GLEESON CJ: What page is this, Mr Jackson?
MR JACKSON: Yes, your Honour. I was going to take your Honour to page 50 and, your Honour, whilst various arguments were put to Justice Sundberg, one of the arguments, and the central argument, in a sense, is that which appears under the heading “Section 32” on page 50, where you will see the question there raised before his Honour and dealt with throughout paragraph 14 and 15 over to the middle of the next page, and that really is the first of the two arguments I propose to put to the Court. Your Honour, that does not turn on anything other than simply reading several provisions of the Acts.
So, your Honours, I am not quite certain where your Honours want me to go really, but the course I propose to follow, as I submitted earlier, was to go to the enactments and then go to the appropriateness of relief. Your Honours, may I in that regard go first to the statutes. Could I go to the Sex Discrimination Act first, your Honours. Could I go to the principally relevant provisions. They are those that relate to discrimination on the ground of marital status. Your Honours will see that concept defined by section 6 and your Honours will see that it refers to discrimination on the ground of, in section 6(1), discrimination “on the ground of marital status . . . if, by reason of”, and then the particularly relevant provision is (a), “the discriminator treats the aggrieved person less favourably”, et cetera.
“Marital status” is itself a defined term. It is defined by section 4(1) of the definition provisions. It:
means the status or condition of being:
(a) single;
(b) married;
(c) married but living separately and apart . . .
(d) divorced;
(e) widowed; or
(f) the de facto spouse of another person;
Your Honours, the Sex Discrimination Act has a number of different applications which your Honours have seen in section 9 of the Act. Could I come to the provisions of Part II. Part II commences with section 14 and your Honours will see that the provisions of sections 14 to 20 in Division 1 deal with discrimination in work. One comes then to Division 2, sections 21 to 27. The provisions there deal with, as the heading to the division says, “Discrimination in Other Areas”. I will come to the particular provisions of section 22 in just a moment, but your Honours will see if one looks through the opening parts of the several provisions of Division 2 that it uses the phrase, “discriminate on the ground of the person’s sex, marital status, pregnancy or potential pregnancy” on various occasions throughout those provisions.
The provision of present relevance is section 22(1) and may I take your Honours to that. Your Honours will see that it says that:
It is unlawful for a person who . . . provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person’s –
then your Honours will see the phrase used –
sex, marital status, pregnancy or potential pregnancy ‑ ‑ ‑
GAUDRON J: Why in this case do we concentrate on marital status when there is “potential pregnancy” in the Act?
MR JACKSON: Could I say for two reasons. First of all, because that is the basis of ‑ ‑ ‑
GAUDRON J: That is the way the case was conducted.
MR JACKSON: Not just the case conducted; it is the basis of the decision below. The discrimination has to be on the ground of the person’s potential pregnancy.
GAUDRON J: Yes, but I could well envisage a case of discrimination on the ground of potential pregnancy.
MR JACKSON: No doubt there are cases where there is ‑ ‑ ‑
GAUDRON J: No, a case to be made in this case. If we are going to the relief – I mean, it comes back to the relief. If one can see another argument which the parties chose not to put, how do we deal with it now? I suppose we cannot.
MR JACKSON: If I could just say in relation to that, if one looks at the terms of section 22(1), what it appears to be proscribing is that it makes unlawful for the person who provides goods and services to discriminate a person on the ground of, to take your Honour’s words, potential pregnancy by refusing to provide the other person with those goods or services, et cetera.
GAUDRON J: Or in the terms and conditions?
MR JACKSON: Yes, your Honour, in the terms and conditions on which they make them available to them. In our submission, there is not a discrimination on the ground of potential pregnancy. The whole operation, if I could use that term loosely, under the Infertility Treatment Act would not be to discriminate on the ground of possible pregnancy “in the terms or conditions”, et cetera, but rather what the operation is seeking to do is to bring it about.
Your Honours, what we would submit is that when one is looking at section 22(1), what it is looking to say is that there will be a discrimination in one of the three ways set out there, because of the sex of a person or because of one of the other features there set out and, your Honour, that is what I would seek to say about it, to put it shortly.
Your Honours, could I then go on to say that the term “services”, as used in section 22(1) is defined in section 4(1) to include - and your Honours will see paragraph (d) of that:
services of the kind provided by the members of any profession or trade.
Now, could I say in relation to that, your Honours, I do not submit for the purposes of our argument that what is contemplated is not a service and, your Honours, I wish to add one qualification to that and the qualification is that I said, for the purposes of our argument, your Honours will see that in the argument of our learned friend, Mr Ellicott, and the submissions of our learned friend, Mr Ellicott, are the argument that is not a service is advanced and, your Honour, I do not propose to argue the question, but if your Honours were minded to accept the ‑ ‑ ‑
GAUDRON J: What is the service?
MR JACKSON: Well, your Honour, the service is certainly the services contemplated by section 8 - may I come to that in a moment – of the Victorian Act.
GAUDRON J: Well you say that, but it seems to me how you define your services, and again this only seems to me to raise problems about the constitution of the proceedings and so forth, but if you define it as fertility services then you may well be back into discrimination on the grounds of sex – I have not looked at the State Act. If you define it as pregnancy services, then you have another argument, but here the parties are, they have chosen to fight the issues on one basis and I, for my part, would be worrying in terms of whether there is an error, whether prohibition should go or mandamus should go. I, for my part, would be wanting to consider how you define “services” and whether it is not straight within the terms of the Act.
MR JACKSON: Your Honour, I do intend to come to the interaction between the two enactments and the ‑ ‑ ‑
GAUDRON J: Well, you will come to the terms of the interaction on the definition that it is “fertility services”.
MR JACKSON: Well, it is the services that I referred to in section 8 and the particular ‑ ‑ ‑
GAUDRON J: Reproduction services; let us call it “reproduction services”.
MR JACKSON: Your Honour, may I, with respect, seek not to do so but to adopt the terminology of the enactment, that is all.
KIRBY J: The terminology of what?
MR JACKSON: I was going to come, your Honour, I have not got there yet, to the terms of the Victorian Act, the provision ‑ ‑ ‑
GAUDRON J: Yes, but I know you wish to do that and I know that is how the parties put their case below, but I am saying to you, before you can deal with any of those questions, you have to define your services. Before you can come to inconsistency or to the construction questions that you raise, we have to know what the services are, and I would have thought they were capable of expression in any number of different ways which give rise to any number of different issues, different from those upon which the parties below chose to conduct their litigation, and I say that raises then a further problem in terms of the nature of these proceedings and the relief that is sought.
MR JACKSON: May I seek to say in response to that that the issue that was before Justice Sundberg was an issue about section 109 inconsistency. Section 109 inconsistency inherently involves a question of the intersection of two laws. If one is looking to see what is the inconsistency, in the end it has to be defined by reference to the two laws in question.
GAUDRON J: You start though with finding the scope of the operation of the federal enactment.
MR JACKSON: I accept that, your Honour.
GAUDRON J: And about which there may be debate right at the outset by reference to the notion of services, I would have thought.
MR JACKSON: Well, your Honour, there may be in some cases debate about whether the Act does or does not apply to particular services, but the term “services” is defined as relevantly including professional services. Now, that is as far really as one gets from the Commonwealth enactment. One goes from that then to see what is the other service to which it would apply and the service to which it would apply, because one is speaking about an inconsistency question, is one which in the particular case is not just contemplated by but one which is specified in the State Act and that is ‑ ‑ ‑
GAUDRON J: Yes, I know why you take it but if you go back to your question about the application of the Act and the construction of the Act by reference to section 9(10), questions of marital status and so forth and so on I would have thought only arise by defining your service in terms of the State Act or a particular provision of the State Act. If you define it differently, if you define it as fertility services or reproductive medicine generally, then you do not get into the problem that you wish to agitate about 9(10), it seems to me. The fact that the parties chose to conduct it on one basis perhaps enables you to get into 9(10) but when you come to the relief granted, it seems to me 9(10) is only there on the assumption that you define services in a particular way.
MR JACKSON: May I say in relation to that that of course one starts from the Commonwealth enactment and the starting point of the Commonwealth enactment is really to see what in terms it says and your Honours see the terms of it. Now, if one is speaking about the service, then there is no doubt a professional service but to see what the professional service is, one cannot not go to the ‑ ‑ ‑
GAUDRON J: I would have thought you would go to the facts.
HAYNE J: And was a particular treatment procedure in issue in the proceedings before Justice Sundberg?
MR JACKSON: Yes.
HAYNE J: What, in terms of the State Act definitions of “treatment procedure”, was the particular procedure in issue?
MR JACKSON: Yes, can I come to that and take your Honour to the passage which indicates it. I am sorry, can I give your Honour the passage in just a moment, but going to the Victorian Act, your Honour will see the definition of “fertilisation procedure” in ‑ ‑ ‑
HAYNE J: Do we go past the paragraph (a) part of the definition of “treatment procedure”, do we?
MR JACKSON: Yes, your Honour.
HAYNE J: Yes. So we are into (b) ‑ ‑ ‑
MR JACKSON: In the particular case, yes.
HAYNE J: Yes, and which of the fertilisation procedures there defined was at issue in the proceedings below?
MR JACKSON: Your Honour, I will have this checked, but I think it was either paragraph (a) or paragraph (b) of that. I mean, that seems to involve a temporal and development difference between the two. Could I give your Honour to a reference to that a little later?
HAYNE J: Yes.
MR JACKSON: But it was one of those, your Honour.
GAUDRON J: Does this Act, or does the law – and this comes back to the 9(10) point – impose any limitation on the providing of reproductive services to unmarried men?
MR JACKSON: I think the answer is no, your Honour, no.
GAUDRON J: What I want to know is why we are worried about marital status? I know it is not the way the case was conducted below, but it seems to me if the relief you claim is available is to be available, then it can only be available in a properly constituted matter where the full facts upon which the constitutional answer depends, or the construction answer depends in a case such as this, are known ‑ ‑ ‑
MR JACKSON: They were ‑ ‑ ‑
GAUDRON J: ‑ ‑ ‑ or are ascertained. No, they were not. We can assume, can we, from the case below, that there is nothing in the law of Victoria which prevents reproductive treatments being made available to an unmarried man, or an unmarried man not living in a de facto partnership with a woman?
MR JACKSON: Your Honour, I will have that checked, but I think the answer is as I said. It may, of course, depend on what one contemplates by the concept of reproductive treatment.
McHUGH J: It is set out, is it not, in the statement of claim in the particulars at page 15 as to what was the service?
MR JACKSON: Yes.
McHUGH J: It seems to fall within definition (b) of the term “fertilisation procedure”.
MR JACKSON: Yes.
GAUDRON J: All that may be accepted, but it does not expose the scope of operation of the federal Act and it does not, I would have thought, determine whether the provision is discriminatory against women as distinct from on the grounds of marital status.
MR JACKSON: Your Honour, that is really in a sense what takes one, I suppose, to section 32 of the Commonwealth Act, because section 32 ‑ ‑ ‑
GAUDRON J: That is right, and it is only if you define it as operating on the particular service that you ever get to 32. I would have thought if you are talking about reproductive medical treatment, it is treatment that is available to men and women generally.
MR JACKSON: Well, your Honour, I suppose it depends on what one includes within the definition of “reproductive treatment”.
GAUDRON J: No, it is what you call the service, how you define the service.
MR JACKSON: We would define the service, your Honour, by reference to the matter that was in issue in the proceedings and that was the provision of a particular service regulated by a particular Act.
GAUDRON J: What I am putting to you is this: the parties chose to conduct their case on the basis that there was discrimination on the grounds of marital status. That is to say, that the relevant provision of the Infertility Treatment Act constituted discrimination in the provision of a service on the grounds of marital status, that being because everybody assumed that the Act was valid in proscribing discrimination on the grounds of marital status or validly operated to that extent. But had the matter you raise been in issue in the proceedings, it seems to me it would have been open to the parties to say no, this Act discriminates on the ground of sex - forget marital status - on the ground of sex because it prevents some unmarried women obtaining reproductive medical services, whereas there is nothing in the law to prevent an unmarried man getting reproductive medical treatments. It seems to me, if we are to answer the questions necessary to grant the relief you seek, we have to explore that.
MR JACKSON: Your Honour, could I just seek to say in response to that that one is not speaking really in the abstract, in a sense, because the Sex Discrimination Act does not really speak in exceptionally general terms - broad terms certainly - but what it is talking about when one comes to services is services that fall within a number of different kinds and your Honours have seen the services referred to. One sees then that to see what is the inconsistency, one has to look to see what are the services that are in question. Now, in the particular case, one goes to services that are dealt with by a particular act and definitions of fertilisation procedures and so on, and it is in relation to those things that one sees both section 22 but also section 32, and whether one looks to either of those provisions - when one goes go to section 32 it says nothing, whether it be sex or marital status or anything, but nothing in ‑ ‑ ‑
GUMMOW J: We come back to the word “services” though.
MR JACKSON: Yes it does, your Honour, but ‑ ‑ ‑
GAUDRON J: To identifying the service.
MR JACKSON: Yes, your Honour, but one looks then to see what is the nature of the services and if one looks to see what ‑ ‑ ‑
GAUDRON J: But we can define it at any level we like, can we not? We can define it as a medical service, maybe too general; we can define it as a reproductive medical service, which may or may not be the same thing as an infertility treatment; or we can define it as in‑vitro fertilisation performed on a woman.
MR JACKSON: Well, your Honour, one can also define it as being, in a sense, what the Act says - and I do not mean that offensively, of course. But one can define ‑ ‑ ‑
GAUDRON J: What the State Act says?
MR JACKSON: No, your Honour, I am sorry. The first thing is that paragraph (d) says: “services of the kind provided by the members of any profession or trade”. One then looks to see in section 32 of the Act, which says nothing in Division 2 applies: “in relation to the provision of services the nature of which is” so on. Now, your Honours, one looks then to see what is the service. The case arose not because it was the wish particularly of the parties, no doubt, but because it was the service.
GLEESON CJ: Now, Justice Sundberg, as I understand it, dealt with section 32 by defining as the relevant service a service that was provided to a couple.
MR JACKSON: Yes, your Honour.
GLEESON CJ: As appears on page 51, in the middle of the page. And that is how he answered the section 32 argument. He answered the argument that this is a service that can only be provided to a member of one sex and therefore does not fall within the relevant provisions of the Commonwealth Act by saying: no, this is a service that is directed towards achieving the desire of a couple to have a child.
MR JACKSON: Yes. Your Honour, that is essentially what his Honour did at page 50 and that is the point that we would seek to attack of course. May I perhaps go to that immediately, because that really is in a sense the central aspect of the case. If I could go to Justice Sundberg’s reasons at page 50, paragraph 15 at the bottom of the page. Your Honours will see that in the first two sentences in paragraph 50, he said:
Section 32 looks to the nature of the service provided. The nature of the service in question in this proceeding is to be determined by reference to the State Act.
Your Honours, in our submission, that is perfectly correct.
GAUDRON J: It is that proposition that does not seem to me to be correct in a 109 exercise.
MR JACKSON: Well, I have not taken your Honours to the State Act, and may I come to it in just a moment. But in relation to it, what it makes clear, in our submission, is that whilst it may be that the occasion for the provision of the treatment is the desire of a couple to have a child, what the treatment is is treatment to a woman.
GAUDRON J: Is it? I mean, I know anti-discrimination legislation is not easy and I know it is something that cuts across a whole lot of tenets that lawyers have held dear for a long time. But to determine inconsistency in this case, in the absence of assumptions which the parties accept as correct for the purposes of their case, is not the question to ask: is that provision discriminatory? And it would only be if the provision is discriminatory that any question of inconsistency would arise. Now, the assumption behind your argument seems to me to be that it is discriminatory on the grounds of marital status but not otherwise. What I am putting to you is that may not be correct. The operative provision, it seems to me, of the federal Act is: thou shalt not discriminate on various grounds. There would only be an inconsistency if that could be said to be discriminatory. I can see any number of bases on which it might be said to be discriminatory other than marital status, and I just want to know how we ever get to an answer in this case that is constitutionally correct or statutorily correct if we proceed in a case in which various assumptions were made, quite properly, by the parties who presented their case.
MR JACKSON: Your Honour, could I say in relation to that, that if one is going to look at the question, first, of the Commonwealth Act, as no doubt one should, then cutting across the concept of discrimination, as the starting point, is really section 32. It does not matter whether one is talking about discrimination on the ground of marital status or sex, or anything of that kind, section 32 says none of those provisions applies in relation to the provision of services, the nature of those services being such they can only be provided to members of one sex.
It does not matter how many forms of discrimination it might otherwise have fallen within. If it comes within section 32, it is out of the discrimination. So that means, in our submission, that the place to start is there, with respect, not the definition of discrimination.
GAUDRON J: But if you call it “reproductive services”, they are not services that can only be performed to members of one sex, as I understand it, leaving aside the ‑ ‑ ‑
KIRBY J: Mr Ellicott makes the point in his submissions that infertility is something that affects a couple and, therefore, it is, of its nature, something that affects more than one person.
MR JACKSON: Well, your Honour, can I just say, first of all, that submission is put, as we understand it, in the alternative to ours, if ours were not accepted, and I do not really want to cover the same ground in relation to it. But may I just say that, undoubtedly, the inability to have children is something that may be caused by one or both of the parties but infertility does not necessarily come about in circumstances where there are two parties. There may be infertility without there being a second party at all. I mean, there has to be, one way or another, for there to be the children.
GLEESON CJ: But that was the basis on which Justice Sundberg answered the section 32 argument. His answer to section 32 was to say, “This is a condition that affects couples”.
MR JACKSON: Yes, your Honour, I am endeavouring to go to his judgment, but could I just say in relation to it, that whether one is looking at infertility in the broad concept as being infertility of a couple or of a particular person – and, your Honour, whoever may be whichever in the case of a couple may be the person whose condition brings about the infertility and despite the fact that men have made many advances, at the end of the day, it is only women who bear children, who become pregnant and bear children. Your Honours, when one looks at Justice Sundberg’s decision, that is the point which, in our submission, is elided by his reasons. May I come back to them now, your Honours.
KIRBY J: The problem is the statute does not say that it is a function or an act of single sex. It says that you have to search for the service and the nature of the service. It really does, as Justice Gaudron said, require the Court to make a choice. You either define the nature at a level of abstraction A or a level of abstraction B. I think it will be helpful if you could say why one has, because of the context, to take it at your level of abstraction rather than Justice Sundberg’s.
MR JACKSON: Yes. Well, your Honour, may I do two things in relation to that. The first is I want to go to Justice Sundberg’s reasoning at paragraph 15 and, having said that, then perhaps if I could go to the terms of the Victorian Act. Your Honours, in relation to that, could I take your Honours back to page 50 and paragraph 15.
Now, your Honours will see at the bottom of the page that his Honour said:
Parliament has, in effect, characterised the treatments as being of the same general nature, namely treatments aimed at overcoming obstacles to pregnancy. Accordingly, the nature of those treatments is such that they are capable of being provided to both sexes.
But, your Honours, whilst it is right to say that the treatments are “treatments aimed at overcoming obstacles to pregnancy” and whilst the obstacles may reside in the male or female or both, the obstacle remains, what his Honour says, “an obstacle to pregnancy” and pregnancy inherently refers to the situation of the woman and, your Honours, the view of his Honour that accordingly ‑ ‑ ‑
KIRBY J: You do not get the pregnancy without the male sperm, therefore the infertility in the male, as Mr Ellicott’s submissions say, is a precondition to the pregnancy, so it is a matter of overcoming the obstacle to the pregnancy. That may involve treating the infertility in a male as much as in a female, therefore the service and the nature of the service, depending on what level you abstract it, can involve the couple.
McHUGH J: I would have thought that the starting point is to go to section 22 and see what this person provides, what is the service this particular person provides.
MR JACKSON: Well, indeed, your Honour, and may I ‑ ‑ ‑
HAYNE J: Or is it even more precise than that, that is, was the action before Justice Sundberg not properly characterised as this, “Will I, McBain, have an answer under the Victorian Act to a complaint of contravention of the SDA if I do not do what Ms Meldrum asks me to do?”
MR JACKSON: Yes.
HAYNE J: And is there not considerable difficulty in taking the argument at a higher level of abstraction than that?
MR JACKSON: Well, your Honour, that is certainly part of our submission and it really derives from the fact one is talking about a question of inconsistency. Inconsistency, your Honours, can arise in a number of ways, of course, and sometimes it arises by Commonwealth Acts that cover a wide field, sometimes not, but what one sees in the particular case is that “services” refers to services. One looks then at the Victorian statute to see what the service is, in our submission. This case involves really, with respect, no more than that.
McHUGH J: According to the particulars, the service that Dr McBain provided was the removal from Ms Meldrum of an ovum or ova, the fertilisation of that ovum or ova with a donor sperm and the transfer of the embryo constituted by the fertilised ovum or ova into her womb.
MR JACKSON: Yes, and, your Honour, when one goes to the terms of the Victorian statute, section 8, and to the definitions that it picks up, they are all defined as treatments to a woman and that is where one picks up section 32. Your Honours, the point I was going to make, staying for the moment with paragraph 15 of the Judge’s reasons at page 51, is that when he speaks of “overcoming obstacles to pregnancy”, inherently pregnancy is a condition of a woman. Now, your Honours, what we would seek to say then is if one goes to the remainder of his Honour’s reasons in that paragraph, what one sees is that the aspect to which the Victorian Act is directed is the thing that he refers to there, that is the placing of the embryo into the womb and your Honours will see that about six or eight lines from the bottom of the page. He says:
The fact that for biological reasons the embryo is placed into the body of the woman is but the ultimate aspect of the procedure.
And, your Honour, perhaps in a temporal sense that is so, but that is the essence of the procedure and your Honours will see, namely, to bring about pregnancy, and that is what pregnancy is, of course.
Now, if I could go then to the terms of the Victorian enactment from which I have so far shielded your Honours. If I could take your Honours to section 8(1), first of all. It commences, as your Honours will see, with the words, “A woman”, and in terms of section 32 of the Commonwealth Act, whilst that is not decisive, in our submission, it is not a bad start, in a sense. It commences with the words, “A woman”, and it there refers to:
A woman who undergoes a treatment procedure –
and your Honours will then see the requirements of section 8(1).
GAUDRON J: “Treatment procedure” is ‑ ‑ ‑
MR JACKSON: Yes, your Honour, defined by section 3(1) as meaning two things, each of which is defined. “Treatment procedure” is defined in section 3(1) to mean two things:
(a) artificial insemination of a woman with sperm from a man who is not the husband of the woman; or,
(b) a fertilisation procedure –
“Artificial insemination” is defined by section 3(1) and your Honours will see it defined really in the manner in which one might expect, but your Honours will see both in that definition and in the reference in paragraph (a) of the definition of “treatment procedure” to the words of “a woman” or “the woman”. If one goes then to the definition of “fertilisation procedure”, your Honours will see that is defined again in section 3(1).
McHUGH J: That is the critical ‑ ‑ ‑
MR JACKSON: Yes.
McHUGH J: And it is paragraph (b), I think, is it not?
MR JACKSON: Yes. Your Honours will see that each of the paragraphs of the definition refers to a type of procedure. Each of them is the medical procedure. Each of them is transferring – (a) and (b) refer to:
transferring to the body of a woman –
Your Honours will see again the same phrase used in each of the subparagraphs of paragraph (c) of the definition. Now, one goes then to the operative provisions of the Act. First of all, in Part 2, Division 1 they commence with section 6 and your Honours will see that section 6 contains a prohibition on carrying out a fertilisation procedure. Your Honours have just seen the definition of that:
A person may only carry out a fertilisation procedure if –
(a) he or she is a doctor who is approved under Part 8 to carry out . . . satisfied that the requirements . . . have been met and
(b) the procedure is carried out at a place ‑ ‑ ‑
GLEESON CJ: Could I just interrupt you to relate this back to the Commonwealth statute in one respect. The operative provision of the Commonwealth Act is one that affects the conduct of a discriminator; is that right? Section 22 says:
It is unlawful for a person . . . to discriminate –
and there is another provision that refers to a discriminator.
MR JACKSON: Yes.
GLEESON CJ: Presumably, when you relate that to section 6 ‑ ‑ ‑
MR JACKSON: Of the Commonwealth Act?
GLEESON CJ: No, when you relate that to section 6 of the Victorian Act, the discriminator, if there is one, is the person who is carrying out the fertilisation procedure; is that right?
MR JACKSON: Yes, your Honour.
GLEESON CJ: So the act of discrimination struck out by the Commonwealth legislation is some kind of conduct by a person who carries out a fertilisation procedure, in this case Dr McBain.
MR JACKSON: Or who would, but for the discrimination, carry it out.
GLEESON CJ: Quite, but that is the relevant area of discrimination. It lies in the carrying out of a fertilisation procedure, is that right?
MR JACKSON: Yes, your Honour.
McHUGH J: Which is defined.
MR JACKSON: Yes, your Honour. I was going to take your Honours to section 7 also.
GAUDRON J: I am sorry to go back to that, but is there evidence that they are the only services Dr McBain provides?
MR JACKSON: Your Honour, I cannot give an answer to that immediately. The way in which your Honours see the pleading at page 15 which refers to the treatment procedure that was involved - and that is set out halfway down the page in the particulars - as to the evidence on the point, your Honours will see Dr McBain’s affidavit at page 25 where he said, in paragraph 3 in the last three lines, he has:
practised as a specialist gynaecologist since that time (1981), specialising in reproductive technology and invitro fertilisation (“IVF”) techniques.
GAUDRON J: I presume in the reproductive technology he also provides some services to men?
MR JACKSON: I do not know, your Honour.
GAUDRON J: Where does he get the sperm that is artificially inseminated?
MR JACKSON: Your Honour, it comes from - the provisions of the Act to deal with that, and deal with the ‑ your Honour will see in sections 14 and following of the Act that there are the various requirements for donors and to the circumstances in which they may be given.
GAUDRON J: Does anything require a donor to be married or living in a de facto partnership with the person who is receiving the donor sperm?
MR JACKSON: I am sorry, I did not catch the last thing that your Honour ‑ ‑ ‑
GAUDRON J: I said does anything in the Act or the law require the donor to be married to or living in a de facto relationship with the woman who is going to receive his sperm?
MR JACKSON: No.
GAUDRON J: No.
MR JACKSON: Your Honour will see that reflected in, for example, section 8(3)(a).
HAYNE J: Further reflected in section 15 about provisions for ‑ ‑ ‑
McHUGH J: Section 15 and “objections by later spouse”.
GLEESON CJ: Do we know, either from the allegations of the pleadings or the evidence, what, if any, relationship exists between Dr McBain and the donors? Are they patients of his?
MR JACKSON: I think the answer is no, your Honour, but may I check that aspect of it.
GLEESON CJ: I am simply wishing to inquire what kind of services, if any, Dr McBain provides to the donors.
MR JACKSON: Yes, your Honour, I will check to see if there is anything there. I think the answer is there is nothing there, but may I check that. I see that that I am proceeding a little beyond the time that was ‑ ‑ ‑
GLEESON CJ: You did not start your submissions until 10.30 anyway, Mr Jackson.
MR JACKSON: Your Honours, could I just go on to say that if one looks at section 8, which is the provision that was the core provision, it speaks of in subsection (1) a woman who “undergoes a treatment procedure”, and the Act uses the expression “woman” on many occasions. In our submission, they are used in a context where it is, in the end, only women who become pregnant. So our submission is that prima facie in a case ‑ ‑ ‑
GAUDRON J: It might be discrimination in itself.
MR JACKSON: Your Honour, whilst my ‑ ‑ ‑
HAYNE J: The hat is in the den, Mr Jackson, and I would not go back for it.
GLEESON CJ: Even if it is discrimination, not everybody is complaining about it.
MR JACKSON: Your Honour, those instructing me may have certain connections but I do not have instructions in the area. But could I say this, your Honours, if one had to identify in terms of section 32 of the Commonwealth Act a professional service, the nature of which was such that it could only be provided to members of one sex, then, in our submission, what is provided for by section 8 of the Victorian Act is something which very aptly fits within that and it would be difficult, with respect, to think of many things that would more aptly fit within it.
Now, your Honours, that in a sense is fundamentally what we would seek to say concerning section 32, but may I just add two things. The first is that there is a suggestion in the submissions on behalf of the Human Rights and Equal Opportunity Commission in paragraph 23 of our written submissions that section 32 of the Commonwealth Act should in some way be viewed as a statutory defence. But, your Honours, we would seek to say about that that section 32 really is not so framed. It is a provision which determines the ambit of operation of the provisions of Divisions 1 and 2 and, indeed, it is different really from a provision like sections 7B and 7C of the same Act where section 7C provides that:
In a proceeding under this Act, the burden of proving that an act does not constitute discrimination because of section 7B lies on the person who did the act.
So that is a circumstance where a defence is provided, but, rather, section 32 determines the ambit of operation.
Your Honours, our learned friends’ submissions rely on two decisions in the Court, X v The Commonwealth and Qantas v Christie. Without taking your Honours to the detail of that, may we simply seek to say that neither of those cases establishes a proposition that a provision like section 32 would be construed as a defence.
Your Honours, could I move then to a second aspect and that is the second aspect raised by the Human Rights and Equal Opportunity Commission, and that is this, that it is said that section 32 is concerned only with discrimination on the ground of sex. But, your Honours, the opening words of section 32 are very strong indeed. “Nothing”, it says, “in Division 1 or 2 applies”. How does one read that down and why should one read it down? The second thing is that the parliamentary debates are very against that proposition. Your Honours will see the extract in the Attorney‑General for the Commonwealth intervening submissions in page 10, paragraph 30. Your Honours, those are the submissions I wish to make on the first point.
Could I come to the second point and I will endeavour to do so very briefly. That is the question of invalidity or validity in a sense by construction. Your Honours will see in section 9(10) the Act is to be construed so as to give effect to the Convention. When one goes to the Convention, which your Honours will see is contained in the Schedule to the Act, what one sees is that the discrimination which is contemplated by it is “discrimination against women”, and, indeed that is what section 9(10) itself says, “discrimination against women”.
Now, if one goes to the Convention, your Honours will see Article 1 to it, which is the definition provision which defines the concept of discrimination against women. What it is defined to mean is:
any distinction, exclusion or restriction made on the basis of sex –
and it goes on to say –
which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women –
Now, your Honours, it relates, in our submission, to treating women equally with men. The words in the definition, “irrespective of marital status”, indicate, in our submission, that the fact that a woman is married or not does not affect that equality.
McHUGH J: You rely on the French translation of the Convention which suggests that “irrespective” means “whatever”.
MR JACKSON: Yes, that is one of the things we rely on, your Honour. Now, your Honours, we have set out in our written submissions, essentially, what we wish to say on this topic. I want to refer, if I may, very briefly, to a few aspects of it. Your Honours will see, when one goes to Article 2, the words:
State parties condemn discrimination against women in all its forms -
and then two lines further down -
eliminating discrimination against women -
Paragraph (a), “the principle of the equality of men and women”; paragraph (b), “discrimination against women”; paragraph (c), “legal protection . . . on an equal basis with men”. When one comes to the concluding words of Article 3, “on a basis of equality with men”; Article 4, “accelerating defacto equality between men and women”.
GAUDRON J: I am just looking at that. Do you say that one reads it down to take out discrimination on the grounds of marital status?
MR JACKSON: Yes, your Honour, one would have to.
GAUDRON J: That is because that is the only way one can read it down or that is because of the Convention?
MR JACKSON: Well, your Honour, when I say one takes out discrimination on the basis of marital status, sometimes there can be an overlapping. All I am saying is, your Honour, that the criterion to be applied, because of the operation of section 9(10) is that there is discrimination against women.
GAUDRON J: Because one of the problems I have is I do not know what human rights and fundamental freedoms are, but that is going to determine the scope of ultimate validity, and if one of those human rights and fundamental freedoms is to reproduce - I do not know whether it is - but if it is, then I would have thought, if there is no discrimination against men who are not married and not living in defacto relationships, reproducing, then you come straight within the terms of whether or not “married” in Article 1, or irrespective of their marital status, in Article 1, if there is a similar limit on women doing it, unmarried women doing it. You see, I am just saying, the reading down is not a simple proposition by reference to the Convention.
GLEESON CJ: And it raises the same question of the level of generality or particularity at which you look at it: “Is the relevant right to reproduce, or is the relevant right to bear a child?”
MR JACKSON: Yes. Your Honour, if one is looking at the terms of the definition in Article 1 - Article 1 is a defining provision, of course – one sees the remaining articles dealing with what is to be done. The context in which they speak is, for example, if one takes, say, Article 7 and Article 8, they speak of “discrimination against women”, in Article 7:
in the political and public life of the country and, in particular, shall ensure to women, on equal terms with men -
various rights. And then Article 8.
Your Honours will see, if I could put it this way, that the Convention is speaking of discrimination against women, treating women not just differently - because some differences are inherent, and the fact that people are of two different sexes – but treating women differently because of the sex of one, and in some way seeking to prevent them from being equal. Now, one can say, of course, there are various levels of generality at which it can be applied, but what the Convention is seeking to do is not to deal with the question of discrimination on the ground of marital status. And as we have put in our written submissions, when one sees that discrimination referred to in conventions, it tends to be specified as something special.
GAUDRON J: What I am saying, really, is that to read down by reference to constitutional validity you might have to have something like a rewrite, which says “shall not deny to any unmarried woman any rights or freedoms that are available to any unmarried man”. It is not really a simple question of reading it down in the way you say.
MR JACKSON: Well, they have to be provisions in relation to discrimination against women give effect to the Convention. Now, the Convention works on the underlying assumption that ‑ I do not mean to be facetious at all, of course – that men cannot have children, men do not have children, they do not bear children. Women do.
GAUDRON J: They do not give birth to children.
MR JACKSON: Well, your Honour, nor, with respect ‑ ‑ ‑
GAUDRON J: Which is maybe about as far as it can go.
MR JACKSON: Men also do not bear children, of course, which is ‑ ‑ ‑
GAUDRON J: Well, they do not give birth to children, which may mean the same thing.
MR JACKSON: Yes, your Honour.
GAUDRON J: It may be true as a matter of fact that they do not do very much with respect to children, but that is not the issue.
GLEESON CJ: Does your construction of the Convention mean that the Convention does not prevent an employer saying, “I will only employ married women”, or, conversely, “I will only employ unmarried women”?
MR JACKSON: Well, your Honour, the position would be in a case of that kind that the ‑ ‑ ‑
HAYNE J: It would be picked up by Article 11(2), explicitly.
MR JACKSON: Yes, thank you, your Honour. Well, your Honour, Article 11.2 would probably effectively cover that situation.
GAUDRON J: Yes, but it is a reading down of the Act, as it were, that you are asking us to engage in.
MR JACKSON: Well, your Honour, I have been in trouble for reading down already, but it is reading of the Act consistent with the way the Parliament described it and that is to say you have to treat it as applying the Convention and, your Honour, I ‑ ‑ ‑
HAYNE J: Do we get anything out of Article 12?
MR JACKSON: Well, this is an aspect with which we have dealt in our written submissions and that goes to – if I could just take your Honours to paragraph 64 of our written submissions. Your Honours will see that it is paragraph 64 and following of our written submissions. Could I invite your Honours to note first of all, perhaps before going to it, what is in the immediately preceding paragraphs, and that is that the proposal had been that what is currently Article 16 have added to it another provision, a sub‑article 3, or a paragraph 3, which would have the words “to eliminate discrimination against single parents”. The course of that, your Honours will see set out in paragraphs 62 and 63. It was ultimately not adopted.
GLEESON CJ: Mr Jackson, how long do you expect to require to complete your submissions?
MR JACKSON: Your Honour, I would expect to be, effectively, about 20 minutes.
GLEESON CJ: Mr Ellicott’s and Mr Orr’s time might have to accommodate that to some extent.
MR JACKSON: Well, your Honour, could I say I really have very little more to say on this and, in a sense, little more to say orally on other topics, but perhaps for 20 minutes, I think.
Your Honours, what I was going to say was that one sees that Article 16.3, or the proposed Article 16.3, was not, in fact, adopted. Now, if one goes back then to Article 12, one sees that Article 12 deals with two things. One is that States are to take measures to – it is proscriptive, as we have said in paragraph 65. It prohibits “discrimination against women” and then says, “on a basis of equality of men and women”. Access to health care has to be available to men and women on the same basis. One then goes to Article 12.2 and Article12.2 is one that says that ‑ ‑ ‑
GUMMOW J: The last words of Article 12.1 are not insignificant, are they?
MR JACKSON: Well, your Honour, what is says is that they are to be available “on a basis of equality of men and women” including:
access to health care services, including those related to family planning.
But your Honour will see the reference to “equality of men and women” and there is not, in our submission, anything to demonstrate that the present laws do not involve, relevantly, that equality.
GAUDRON J: That puts the question one way. There is nothing to demonstrate that the relevant laws presently do not have that equality, but are you not inverting things a little bit by asking the question that way, nothing to show that the – I take this to be that we are referring now to section 9(10)?
MR JACKSON: That is the context in which the issue arises.
GAUDRON J: And its application of section 22 of the Act you say where there is nothing to show that they do not have that relevant equality. Is no that to subvert the purpose of 109?
MR JACKSON: With respect, your Honour, no.
GAUDRON J: Until they are shown to have that equality, I would have thought, you do not limit the operation of section 22.
MR JACKSON: Your Honour, section 22, because of section 9(10), has to ‑ ‑ ‑
GAUDRON J: You see it is not operating just in the context of existing laws, it has to operate in he context of law‑making powers which may be exercised in any number of different ways by any number of different States and Territories. What I am saying is it seems to me to say that its operation depends on whether or not it has been shown that the laws are relevantly unequal is a wrong way to go about whatever exercise it is that is involved in 9(10). I do not say that lightly. I am not too sure what is the exercise that is directed by section 9(10) but it cannot, it seems to me, depend on looking at the state of laws from time to time.
MR JACKSON: Your Honour, I do not really suggest that. There are really two questions, of course. One is, “What does the Commonwealth Act say?” and the other question is “What does the State Act say?”.
GAUDRON J: No, if I am looking purely at 9(10), and I thought that was the area of our discourse.
MR JACKSON: I am sorry, I was seeking to say, as your Honour used the term “inconsistency” in the commencement of what your Honour put to me, that one was talking about inconsistency, and I accept the ones looking at the construction first of all.
GAUDRON J: Yes, I do not know how the exercise at section 9(10) requires this to be carried out, I just do not know it, but I would not have thought - and certainly if you are right - well, it is certainly an exercise that has to be done before you can come to the question of inconsistency. But I would not have thought you engaged in that exercise by looking at the laws as they presently stand.
MR JACKSON: Your Honour, I do not know that I am suggesting that, with respect. What I was seeking to say was, two things. One is that one looks to see what Article 12.1 says. When one looks to see what Article 12.1 says, one then looks to provisions like section 22. Section 22 has to be construed in the light of Article 12, and having done that, one then sees whether, so construed, there is an inconsistency between that and the Victorian law.
GAUDRON J: Yes, but what I do not understand is this. What is the construction for which you contend other than simply writing out discrimination on the grounds of marital status?
MR JACKSON: Your Honour, what we would say is that section 22 – can I just pause to say section 22, in some of its operations, applies in its terms. It is when one comes to, for example in relation to people employed by the Commonwealth and so on. When one comes to the operation brought about by section 9(10), one can go about the task, I suppose, in a number of ways. Essentially it comes down to saying that section 22 is to be read - perhaps one could do it this way - subject to a proviso, “provided that the discrimination is discrimination against women as provided for by the Convention”. I am putting that in short form, your Honour. One might do it by way of…. That would have the effect, of course, that the earlier parts of section 22(1) would, in some cases, be otiose in some operations, but essentially one I suppose treats section 9(10) as a proviso to section 22(1); or one could do it another way, by treating section 9(10) as being a provision which says, in effect, to use, say, the drafting formula of section 32, “nothing in section 22 applies to, or in relation to, the provision of goods or services or making facilities available where the discrimination is not discrimination within the terms of the Convention.”
GLEESON CJ: Is that a convenient time, Mr Jackson?
MR JACKSON: Yes, your Honour.
GLEESON CJ: We will adjourn until 2.15 pm.
AT 12.46 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.15 PM:
GLEESON CJ: Yes, Mr Jackson.
MR JACKSON: Your Honours, may I mention two matters before going on. The first concerns the nature of the procedure that was in question. Your Honours will see references to it in two passages. One I have given already. That is in the particulars of the pleading at page 15, about halfway down the page, the sentence commencing:
The treatment procedure involved -
and then it is set out, and also in an affidavit of Dr McBain at page 26, paragraph 9 on that page. The second thing is an example of a limited fiat ne of your Honours as about. An example of a limited fiat can be seen in a South Australian decision, Corporation of theCity of Unley v State of South Australia (1996) 67 SASR 8 at 10. On the top half of the page there is a reference to the two grounds involved. In respect of one, only, the fiat had been given. It was described as a limited fiat.
Your Honours, could I move, now, to the question which I have dealt in part already and that concerns the availability of certiorari. Some of the aspects of this I have already dealt with in passing. In our submission, by virtue of section 30(a) of the Judiciary Act, this Court has:
original jurisdiction:
(a) in all matters arising under the Constitution or involving its interpretation –
Section 30(a) itself says nothing about the procedure or forms of relief to be adopted and to find those one has to go to the Judiciary Act and to the court’s rules made thereunder. Your Honours will see if one goes then to sections 31, 32 and 33 of the Judiciary Act that section 31 provides that:
The High Court in the exercise of its original jurisdiction may make and pronounce all such judgments as are necessary for doing complete justice in any cause or matter pending before it, and may for the execution of any such judgment in any part of the Commonwealth direct the issue of such process, whether in use in the Commonwealth before the commencement of this Act or not, as is permitted or prescribed by this or any Act or by Rules of Court.
Your Honours, one notices the last clause of that. Then, your Honours, if one goes to section 32 which says:
The High Court in the exercise of its original jurisdiction in any cause or matter pending before it . . . shall have power to grant, and shall grant, either absolutely or on such terms and conditions as are just, all such remedies whatsoever as any of the parties thereto are entitled to in respect of any legal or equitable claim properly –
et cetera. Your Honours will see the concluding exhortation in that provision. Your Honours will then see in section 33(1) that:
(1) The High Court may make orders or direct the issue of writs –
and your Honours will see the various provisions of section 33(1) there set out, including the qualification, or the notation almost, one might say, in section 33(2).
One of the procedures provided for by the Court’s Rules made under the Act is for certiorari. Your Honours can see that in Order 55, and I will not give your Honours all the rules, but certiorari is referred to specifically in, for example, rules 1(1)(c), 1(4), 10 and 17. Rule 17 is the part, and I think the only rule, in that part of Order 55 which deals with certiorari. Your Honours will recall Order 55 is divided up into a general part and then parts dealing with various forms of writ in habeas corpus, mandamus, prohibition, certiorari. The various provisions of the rules deal with certiorari. So certiorari is one of the procedures of the Court available in the exercise of original jurisdiction.
GUMMOW J: Assume, Mr Jackson, there was an action against the Commonwealth in contract - there would be original jurisdiction here under 75(iii) – and assume there is concurrent jurisdiction invested in the Federal Court. Would the arguments you have been putting run in respect of a later action in this Court to attack through certiorari the record of the decision in the Federal Court?
MR JACKSON: Your Honour, there would be no reason why one could not.
GUMMOW J: What would the matter be?
MR JACKSON: Well, your Honour, the matter would be a ‑ ‑ ‑
GUMMOW J: I am assuming the moving party is say a third party to the contract.
MR JACKSON: Yes, your Honour, yes. I am sorry, when your Honour said a third party ‑ ‑ ‑
GUMMOW J: A stranger to the contract through the doctrine of privity, but nevertheless interesting.
MR JACKSON: Yes. Well, in that case, your Honour, the matter would be a proceeding in which the Commonwealth was – I say “a proceeding” advisedly, but a proceeding in which the Commonwealth was a party. Now, the proceeding may fail, of course, but the proceeding would be one which fell within the Court’s jurisdiction under 75(iii).
KIRBY J: You have to embrace this boldly and say that this is something that hovers over everything, that the Constitution is there, and it is because parties have their private litigation, that in an appropriate case the Court has the power to provide a constitutional writ.
MR JACKSON: Yes, your Honour, it is ‑ ‑ ‑
KIRBY J: You should not be too timorous about it.
MR JACKSON: No, your Honour ‑ ‑ ‑
GUMMOW J: Certiorari is not a constitutional writ. That is my problem.
MR JACKSON: Your Honour, if I were timorous, I would be ‑ ‑ ‑
KIRBY J: You would be elsewhere today.
MR JACKSON: I would be a junior infantry officer or something like that.
CALLINAN J: Subalterns get into a lot of trouble, Mr Jackson.
MR JACKSON: Your Honour, I have been one and I know. Could I say, as your Honour Justice Gummow said, this is, in a sense, a constitutional writ in this case because the jurisdiction of the Court is jurisdiction under 76(i).
GAUDRON J: Yes, but what is the “matter”? What is the controversy? Is the controversy whether Justice Sundberg was right or wrong?
MR JACKSON: Yes, your Honour. Yes, it is.
GAUDRON J: Is it any wider or narrower than that?
MR JACKSON: Well, it is certainly not narrower, your Honour, but in the end it comes down to the question whether Justice Sundberg’s decision was an error of law, applying the Constitution in a constitutional matter.
GAUDRON J: Is it whether the decision was right or wrong, or whether there is an error of law apparent in his decision?
MR JACKSON: Your Honour, one can put ‑ ‑ ‑
GAUDRON J: The two are not the same.
MR JACKSON: No, I appreciate that, your Honour, but ‑ ‑ ‑
GUMMOW J: The second may be narrower than the first.
GAUDRON J: Yes.
MR JACKSON: Your Honour, I appreciate they are not the same, but one could answer them both, in a sense, in the same way. But in the present case, the question is whether there is error of law appearing from the record. That is the formal procedure by which the constitutional question is raised.
KIRBY J: Why does it have to be the same matter as the matter between the parties before Justice Sundberg?
MR JACKSON: Well, it does not ‑ ‑ ‑
KIRBY J: Why cannot it just be a different matter? It is the matter that is raised by the Catholic Bishops in the relator proceedings. It is their matter. It is a matter in this Court.
MR JACKSON: Your Honour, the point I am seeking to make is that what is the jurisdiction of this Court is the jurisdiction conferred by 30(a) of the Judiciary Act, that is, jurisdiction in matters arising under the Constitution. Now, the contention that we advance in circumstances where the submission is that either the Attorney‑General has whatever standing may be necessary to attack the decision below, or where standing is not required, we say that the procedure that is then the relevant procedure of the Court to determine that matter is the procedure by way of certiorari.
GLEESON CJ: On pages 58 and 59 of the application book in orders 1 and 2 of Justice Sundberg there is a possible description of what, to use a neutral term, I will call “the issue” he declared that certain legislation was invalid or inoperative.
MR JACKSON: Yes, your Honour, that is the substance of the issue and that is the ‑ ‑ ‑
HAYNE J: No, it is not, Mr Jackson, no, it is not.
McHUGH J: It cannot be. How can Ms Meldrum be a party to that? The Attorney‑General of the Commonwealth cannot take out process in this Court against John Citizen for a declaration that some legislation is valid or invalid. It is absurd.
MR JACKSON: Well, your Honour, may I start by going back to what your Honour the Chief Justice was putting to me and what I was about to say in relation to that, with respect, was to say that if one looks at the legal issue underlying the proceeding, if I can use a neutral term for the moment, the legal issue is whether - and your Honour will see the terms of paragraphs 1 and 2 of the judge’s order are expressed in neutral terms. They refer to questions of the invalidity and the are expressed relatively generally. Now, your Honours, having said that, the question which then arises in this Court is whether that decision is one which is capable of being set aside.
HAYNE J: That is to say the whole of the relief which you seek in this Court is directed to the outcome of the proceeding before Justice Sundberg.
MR JACKSON: Yes.
HAYNE J: None of the relief you seek in this Court is in the form of declaration of validity or invalidity.
MR JACKSON: That is so, your Honour, yes. I mean, when I say ‑ ‑ ‑
HAYNE J: So that the matter that you seek to contend arises is a matter that focuses wholly on the outcome of the proceedings before Justice Sundberg.
MR JACKSON: Yes it does, your Honour, it focuses on that, yes.
HAYNE J: And only that.
MR JACKSON: Yes, your Honour, because what we seek to have done is to have an order made which quashes that decision.
GAUDRON J: The question I want to ask is: why is that justiciable? Forget about the remedies that are available. Why is the question whether a judge in the exercise of federal jurisdiction got it right or wrong a justiciable controversy at the suit of a non‑party?
MR JACKSON: Your Honour, in the first place the general proposition, in our submission, is that the writs of prohibition and certiorari are ones which are available – though, as a matter of discretion, they may not be granted – at the suit of persons who were not parties to the proceedings. That is the first thing.
GAUDRON J: Mandamus and prohibition are for jurisdictional error, that is, where what you are seeking to vindicate is not whether the judge got it right or wrong, but whether the judge exercised jurisdiction he did not have, or whether he refused or whether she refused to an exercise of jurisdiction that you did have. It seems to me to be a different issue, that is a different controversy, that is raised by the constitutional writs of mandamus and prohibition, than what is sought to be raised here.
MR JACKSON: Your Honour, we would seek to say a number of things in that regard. One is that one does start from the proposition that what is being spoken about is jurisdiction in a matter arising under or involving interpretation of the Constitution. So that is the first thing; that is what the Court is being asked to do. Your Honours, in relation to that, what the Court is being asked to do is to quash a decision of a judge of a court, because the decision was made erroneously.
GAUDRON J: Or because there is an error of law on the face of the record. It is possible that the decision is right but there is, nonetheless, an error of law on the face of the record.
MR JACKSON: In that case, one would not quash it, your Honour.
GAUDRON J: As a matter of discretion?
MR JACKSON: No, because, your Honour, there would be an error of law, but not an operative one, because it had not led to the result, because the result was right.
GAUDRON J: So it is ultimately whether the decision is right or wrong?
MR JACKSON: Certainly in this case, your Honour, yes.
GAUDRON J: Now, that is the controversy?
MR JACKSON: Well, your Honour, I was speaking for the moment about the way in which the Court acquires jurisdiction to deal with this matter and the controversy, your Honour ‑ ‑ ‑
GAUDRON J: Yes, but 76(i) is a description of the matter. I am looking to find the content of it. I am looking to find the precise content of the matter to ascertain whether there is a justiciable controversy. Perhaps that is circular. I am looking to find the precise nature of the controversy to ascertain whether it is justiciable and whether therefore there is “a matter”.
MR JACKSON: The nature of the controversy is whether the judge in the Federal Court ‑ ‑ ‑
GUMMOW J: Controversy with whom though?
MR JACKSON: It is controversy with us, your Honour. This is where, if I may say so with respect, the question of matter involves of course availability of relief as well. As the Court has said on a number of occasions, “matter” is a term which is ambulatory; ambulatory because it covers a number of different things in sections 75 and 76 and some of them come about not because of any very refined description of the actual subject matter but, for example, simply because it possesses a particular quality, a particular form of relief or a particular party.
GLEESON CJ: Would your argument be the same if there had, in fact, been an appeal by the State of Victoria against the decision of Justice Sundberg and then the appeal had been settled on terms not to be disclosed?
MR JACKSON: It may well, your Honour, yes.
KIRBY J: What if it had been decided – in other words, the appeal had come here and had been decided – could we then seek, as it were, to reopen matters by way of a constitutional writ with certiorari adjunct to it?
MR JACKSON: It would be a question of to whom it would be directed, your Honour. It is difficult to see in those circumstances – it might depend theoretically because it would be very theoretical in the end because it would be ‑ ‑ ‑
KIRBY J: I just think you have to embrace the notion that appeal is not the only process, that there is also this other special exceptional constitutional process.
MR JACKSON: Your Honour, I do not abjure that at all. Of course, there may be no appeal. Under section 73 there may be no appeal from a Federal Court.
GAUDRON J: Assume special leave is refused in a matter if somehow or other it is within the original jurisdiction of this Court. If the proceedings are within the original jurisdiction of this Court, anyone with the Attorney‑General’s fiat, the Attorney‑General or any person with a sufficient interest in the case can come and seek certiorari, notwithstanding ‑ ‑ ‑
MR JACKSON: Then it would end up as one of those briefly reported short judgments of applications for orders nisi being refused.
GAUDRON J: You say that. Perhaps you do not have the experience of litigants in person that some of us do.
MR JACKSON: Your Honour may think that. Could I just say that one is, of course, talking about questions of jurisdiction as distinct from the example that has been put to me of what would happen to it within jurisdiction. The fact that there are two courses open does not mean that one should not say that the second course is open, with respect.
KIRBY J: We do, in fact, get sometimes cases in the migration area where there is both an application for special leave and a constitutional writ. The two come together. It is not unusual.
MR JACKSON: That was Abebe, your Honour, and it came from different levels. What I was going to say was that the possible availability of certiorari has been referred to on a number of occasions in the Court. Could I refer particularly to Re McJannet; Ex parte Minister for Employment (1995) 184 CLR 620.
KIRBY J: What point is this for, Mr Jackson?
MR JACKSON: The possible availability of certiorari in constitutional matters. Could I refer to the last paragraph on page 651 going over to the top of page 652. The issue was a little more recently adverted to in Re Refugee Tribunal; Ex parte Aala 75 ALJR 52 at page 55 at paragraph [14] and at paragraph [157], your Honour Justice Hayne. Certiorari, of course, speaking generally, is available for error of law on the face of the record. That is referred to, of course, in Craig v South Australia (1994) 184 CLR 163. Could I simply refer your Honours to pages 175 and 176 in the joint judgment of five members of the Court.
Certiorari has gone for error of law on the face of the record in Reg v Cook; Ex parte Twigg to the Family Court, (1980) 147 CLR 15 at pages 25 to 26 and the reasons for judgment of Justice Gibbs. Here, the record, if one goes simply to the orders, in our submission, demonstrates the relevant error of law. Your Honours, that leaves the question whether certiorari can go to a judge of a federal superior court, apart from the instance I have given. The Court, on a number of occasions, your Honours, has granted certiorari against judges of federal superior courts. Your Honours, they are referred to in the Attorney‑General’s submissions and intervention in paragraphs 63 and 64.
GAUDRON J: Other than as ancillary to mandamus or prohibition for jurisdictional error?
MR JACKSON: Your Honour, that involves two questions, with respect. They have been granted for excess or want of jurisdiction. The case that seems to be one saying “error of jurisdiction has the only ground for certiorari” is Cook; Ex parte Twigg.
GLEESON CJ: Are you submitting that error of law necessarily involves jurisdictional error?
MR JACKSON: Not necessarily, your Honour, no. Your Honour, a particular difficulty in this case is, of course, the Federal Court by section 39B of the Judiciary Act has jurisdiction expressed in the same terms as section 30(a) of the Judiciary Act conferring it on this Court. It would be difficult to say, your Honour, that the Federal Court did not have jurisdiction in matters arising under the Constitution involving its interpretation. On traditional views, jurisdiction would involve jurisdiction to be wrong as well as to be right.
GLEESON CJ: So you do not submit there was jurisdictional error here?
MR JACKSON: No. Now, your Honours, there is, in our submission, nothing inherent in the Constitution of the Federal Court which would render certiorari not appropriate. After all, prohibition and mandamus, and perhaps an injunction, could go for even non‑constitutional error to federal judges pursuant to section 75(v). I say error, I speak of errors appropriate to those forms of relief. Your Honours, as Justice Toohey observed in Jackson v Sterling Industries Limited (1987) 162 CLR 612 at page 630 - that may not be on your Honours’ lists I suspect. It is just a very short passage, your Honours. It is page 630 in the second new paragraph on the page:
The Federal Court is a creature of statute, but so too are the superior courts and other courts of this country. The High Court itself has the jurisdiction conferred upon it by the Constitution and Acts of the Parliament. Though it is common to speak of the inherent jurisdiction possessed by superior courts of unlimited jurisdiction, in truth there is within the federal system of this country no court of unlimited jurisdiction.
GLEESON CJ: Does it amount to this? That if an aggrieved party to proceedings at first instance in the Federal Court sought to leapfrog the Full Court of the Federal Court and the special leave process here and commence proceedings under section 75(v) in this Court, it would only be on the basis of discretion that that party might be prevented, assuming otherwise the conditions for original jurisdiction existed?
MR JACKSON: Well, your Honour, it would be on the basis of discretion. So, too, of course, subject to any statutory provision preventing a direct appeal to the Court, would a special leave application. But I think, your Honour, the position is that with each of the Federal Courts, the specific provision preventing leapfrogging in appeals. But, of course, as I was submitting earlier, it would be possible for there to be the two forms of relief sought in respect of proceedings in, say, the Full Court of the Federal Court. As has happened in a number of cases, particularly, your Honours, in the immigration area in recent times, one has seen applications for relief
by way of a constitutional or other writ, perhaps I should say, in relation to a tribunal or a judge when at the same time there is an application for special leave to appeal.
Your Honours, our submissions otherwise are covered by our written submissions which we adopt.
GAUDRON J: Prohibition to Dr McBain, you do not want to say any more about that?
MR JACKSON: No, your Honour, Dr McBain is a perfectly proper party to the proceedings. He apparently is not involved in the matter any more. In those circumstances, we do not seek to obtain any further relief against him.
GAUDRON J: So you do not, in fact, seek relief against Dr McBain?
MR JACKSON: We want him as a party to the proceedings and but in so far as some party to the proceedings if the result be that the decision is quashed and it is if he is an appropriate party to that.
GLEESON CJ: Thank you. Yes, Mr Orr.
MR ORR: Thank you, your Honours. The Attorney‑General intervenes in these proceedings on the two substantive issues. The first issue is what has been called the inconsistency issue. It concerns section 22 of the Sex Discrimination Act which prohibits marital status discrimination against women.
GAUDRON J: Have we not already heard the Attorney on that issue?
MR ORR: No, your Honour, you have not.
GAUDRON J: I thought I heard Mr Jackson speak for the Attorney on that issue.
MR ORR: Yes, your Honour, the Attorney‑General has granted his fiats to the prosecutors to bring those proceedings, but the fiat is simply a means by which the Attorney‑General’s standing with regard to those writs is granted to the prosecutors in order that they might have standing to bring them. That standing and that grant of standing by means of a fiat ‑ ‑ ‑
GAUDRON J: It is the party. Is he not the party? I mean, I do not know why you are here as an intervener. I thought you were a party.
MR ORR: No, your Honour. The Attorney‑General has simply granted his fiats to enable the prosecutors to bring the proceedings.
GAUDRON J: No, the Attorney‑General has become a party to the proceedings, at least in relation to those proceedings which relate only to inconsistency. He is the party.
McHUGH J: You have complete control of the action.
GAUDRON J: Wentworth v Woollahra Municipal Council, and if you like, we can order you to pay the costs of the proceedings, simply because you are a party.
MR ORR: Yes, your Honour. The Attorney‑General has granted a fiat. That does not mean the prosecutors are the Attorney‑General.
GAUDRON J: Yes, it does.
HAYNE J: Yes, it does. There is a whole raft of authority that says it does and you have to overturn it. Now, unless you are going to confront that, where are we going with the argument?
MR ORR: Your Honour, we submit that is not the case.
GAUDRON J: Why not?
MR ORR: The granting of the fiat simply gives the Attorney‑General standing to bring the proceedings in the Court. The granting of that fiat does not mean that the prosecutor has the powers, privileges and immunities of the Attorney‑General, including the statutory right under section 78A to intervene in these proceedings.
GAUDRON J: No, I am not worried about the right to intervene. I am worried about the fact that you seek to have two goes at the cherry, you see to be both a party and an intervener.
MR ORR: Yes, your Honour, but it is traditional for the fiat to be granted in order to enable proceedings to be brought.
GAUDRON J: There is nothing traditional about these proceedings here.
MR ORR: For those proceedings to be brought in particular against the Commonwealth Government or against the government granting the fiat, and that is what happened.
GAUDRON J: Yes. That is not what ‑ ‑ ‑
MR ORR: If I can just take your Honour to the submissions.
GAUDRON J: Yes. We know that that is what has happened. I want to know why you intervene in proceedings in which you are a party. If you want to limit your intervention to the proceedings in which you are not a party - - -
MR ORR: Section 78A of the Judiciary Act provides the Attorney has statutory right of intervention in the proceedings and that is not limited by the fact that he has granted his fiat. The grant of the fiat simply provides standing. The Attorney‑General of the Commonwealth Government does not support, in the broad sense, the proceedings and that has never been the case. The Attorney‑General is simply lending his standing to the party in order for the proceedings to be brought and often, indeed ‑ ‑ ‑
GAUDRON J: Why? And why? We get right to the heart of Chapter III. Why?
MR ORR: Because the Attorney‑General believes it is in the public interest that these proceedings be brought.
GAUDRON J: No. No. There is a more fundamental reason for the grant of the Attorney’s fiat. It is to constitute a controversy between proper parties. Now, on one view, it is only by the grant of the fiat – or one possible view – that there is any matter before this Court at all. Now, that is why the fiat is granted. It has to do with deep-seated principle about the nature of judicial power, the nature of matters, the nature of controversies, and it is not about public interest in ventilating issues.
MR ORR: With respect, your Honour, the reason the Attorney‑General has granted the fiat is that ‑ ‑ ‑
GAUDRON J: I know the reason why the Attorney‑General has granted the fiat but I am asking you to address the legal necessity for it, not the public policy considerations.
MR ORR: The legal necessity is that the standing requirements with regard to public law rights, in particular the rights of injunctions and declarations to enforce public rights and for what were called prerogative writs - - -
GAUDRON J: But we are not seeking to enforce public rights here.
MR ORR: No, or to seek prerogative writs such as mandamus and prohibition.
GAUDRON J: No.
MR ORR: Those standing rights are limited. Notwithstanding that limit ‑ ‑ ‑
GAUDRON J: I do not understand that to be so in the case of mandamus or prohibition, but there you go - in the ordinary sense.
MR ORR: Our submission is that those standing rights are limited and in addition with regard to the writ ‑ ‑ ‑
GAUDRON J: Why are they limited?
MR ORR: Because the law with regard to those prerogative rights ‑ ‑ ‑
GAUDRON J: What is the law? Where does the law come from?
MR ORR: The common law or general law with regard to those prerogative writs, as they used to be called, refine that a - - -
GAUDRON J: I think it has got to do with the nature of a justiciable controversy which in turn is to do with the nature of “matter” in Chapter III of the Constitution.
MR ORR: Yes, your Honour, that is right, but it does not take away from the fact that the Attorney‑General has standing to bring, as I said, public law rights with regard to declarations and injunctions and to seek prerogative writs.
GAUDRON J: Yes, the Attorney‑General has standing and has done so and now he wishes to have two bites of the cherry.
MR ORR: Yes, but if I can just take to the point that that is perhaps somewhat traditional. If you look at footnote 1 of our submissions and perhaps start with the second one: Attorney-General (Victoria); Ex Rel Black v The Commonwealth (1981) 146 CLR 559.
HAYNE J: Well, let us examine with some care what happened in the DOGS Case.
MR ORR: Yes, your Honour.
HAYNE J: The Attorney for Victoria was the plaintiff, one of several plaintiffs. The Attorney for Victoria sued on the relation of a number of people, some of whom were also plaintiffs. The Attorney for Victoria appeared by counsel, Messrs McPhee and Fajgenbaum. The Solicitor for Victoria appeared to intervene, but you will note that he intervened on behalf of Victoria, Queensland, South Australia and the Territory. No point, as I recall it, was taken in the course of argument of the DOGS Case about the intervention by Mr Dawson on behalf of the Attorney for Victoria and, indeed, to take such a point would have been quite futile, given that Mr Dawson appeared for several other Attorneys. No party took the point. The point was not debated. What do we get out of what happened in DOGS?
MR ORR: Yes, your Honour. Well, the fact that it is traditional for the Attorney‑General’s fiat to be granted to enable ‑ ‑ ‑
HAYNE J: Your idea of tradition and mine are somewhat different, Mr Orr, if you think that that case unargued constitutes tradition. Tradition might usefully go back to the history of relator actions, which is very long and very deep and which establishes beyond doubt that the Attorney will not be heard against the relators and the relators will not be heard against the Attorney. There is much authority to that effect. Perhaps we should depart from it, but if we are to depart from it, let us know what we are departing from and why we should depart from it. Let us not simply sweep it aside, “It is traditional”. It is not.
MR ORR: With respect, your Honour, the position is that the Attorney‑General grants his fiat in order for the proceedings to be brought, not to support the substance of the proceedings. It has never been the case in Australia that the Attorney-General thereby endorsed the proceedings. He was simply allowing the party to obtain his standing, as in the DOGS Case, where ‑ ‑ ‑
GUMMOW J: He controls the proceedings. I have been in cases at the State level where the Attorney does not like what is going on and he withdraws the fiat.
MR ORR: Well, exactly, your Honour.
GUMMOW J: In the middle of the case.
MR ORR: Exactly, your Honour. He withdraws the fiat ‑ ‑ ‑
GUMMOW J: He is dominus litis.
MR ORR: Exactly, your Honour. He gives his standing. He can give his partial standing. He can give a fiat on conditions.
GUMMOW J: He controls the litigation.
MR ORR: But as with the ‑ ‑ ‑
GAUDRON J: If you regard standing, within, at least, matters of federal jurisdiction, as something that goes to constituting a justiciable controversy, and relevant to the question whether there is a matter, which has been said a number of times by members of this Court, most recently, I think, in Truth about Motorways, then you are talking about something that is not merely a collection of common law rules without legal foundation, or without foundation in legal principle. The question that comes to my mind is: when an Attorney-General gives his fiat and appears on one side of the record and then appears, even as intervener, to contradict, whether you have a real controversy – whether you are not right in the heart of what was said in Re Judiciary and Navigation Acts about advisory opinions.
HAYNE J: For my part, I do not see this as some idle point of procedural pedantry. It is not. It is at the root of whether there is a matter.
MR ORR: Yes, your Honour. Just to the specific point with regard to the DOGS Case. That was a case in which, your Honour is correct, there are a number of moving parties. One of the moving parties was at the relation of the Attorney-General for Victoria. Also appearing in that matter was the Solicitor‑General for the State of Victoria for the Attorney-General of Victoria. The argument put by that Solicitor‑General was, first of all, the relators had standing. You may recall there was a challenge to the standing of the relators to actually bring these proceedings, even with the ‑ ‑ ‑
HAYNE J: No, no. I have gone back and I have looked at the submissions, and the submissions, when you go back to them, reveal that the debate about standing was a debate about whether individuals as taxpayers and parents and others interested in education had standing. Not any question about the standing of the relators. These were people who happened to be relators as well as plaintiffs.
MR ORR: Yes, well, all I can say is that at page 573 of the authorised reports at about point 3, the argument of Mr Dawson, Solicitor‑General, is summarised in which it said:
The Attorney-General has standing to challenge the constitutional validity of all the impugned Acts.
HAYNE J: And that was a point about whether the Attorney had standing to challenge a State Grants Act. This happened after AAP and the AAP Case was written on the heart of the then Solicitor for Victoria as it was on mine. The question of standing was a matter of lively interest.
MR ORR: The argument then goes on and put by the same person that notwithstanding the standing to bring the proceedings, that the proceedings should fail because the operation of section 116 of the Constitution was not as the relator proposed, but was as the Attorney‑General for Victoria proposed and with regard to the other case, which is cited there or we could cite others, McKinlay, the relator of the Commonwealth Attorney-General was granted to challenge that legislation and that relator ‑ ‑ ‑
GAUDRON J: And the defendant was the Commonwealth.
MR ORR: And the defendant was the Commonwealth.
GUMMOW J: Exactly.
McHUGH J: But take the seminal case on declarations, Dyson v Attorney‑General. Now would you seriously contend that the Attorney‑General could give his fiat to Dyson to clear up the question of standing, which was an issue in that case, so that you had the Attorney‑General on both sides of the record was the only party, Attorney‑General in the relationship of Dyson against the Attorney‑General?
MR ORR: Yes, your Honour, and that is, in essence, what has happened in McKinlay. The Commonwealth Government was on both sides of the record. The Attorney-General had given his fiat ‑ ‑ ‑
GAUDRON J: The Attorney-General is not the Commonwealth of Australia, not even the Commonwealth Government.
HAYNE J: There are some distinctions that might need to be maintained from time to time.
MR ORR: Yes, your Honour. Well, our submission, your Honour, is that the Attorney-General can intervened in these proceedings on behalf ‑ ‑ ‑
McHUGH J: But it has been decided in the charity cases, on a number of occasions, that the Attorney cannot be heard on both sides; he cannot be heard against the relator and the relator cannot be heard against the Attorney.
MR ORR: The modern practice is that the Attorney can grant his fiat and the fiat can be exercised by a person at the relation of the Attorney ‑ ‑ ‑
GAUDRON J: Well it was not the practice as recently as 15 years ago, but I dare say things have changed, have they, at a Commonwealth level in 15 years?
MR ORR: Well, a lot of the practice is discussed in the Australian Law Reform Commission Reports, with regard to public law remedies, and that report makes this very point, that the fiat is often granted in order to enable the proceedings to occur, not in order to support the Commonwealth’s interests or the Attorney-General’s interests.
GAUDRON J: Well, exactly. Nobody is suggesting to you that you have to support Mr Jackson’s position. The question is, why should you be heard to support it to the extent that you have already put your case through - to the extent that the Attorney-General has already has already put the case through Mr Jackson and why should you be heard against it in light of the very long tradition and the decided cases in that regard? The second question, I should warn you, may require an analysis of exactly what the fiat covers.
MR ORR: That may be true, your Honour, but none of the other parties have challenged either the granting of the fiat by the Attorney‑General, or the ‑ ‑ ‑
GAUDRON J: Nobody is challenging the granting of the fiat. It would not be appropriate for this Court ever to challenge the granting of a fiat. It simply would not be done.
McHUGH J: It was so decided 100 years ago, was it not, in London County Council v The Attorney‑General?
KIRBY J: I do not like to put a cat amongst the pigeons, but as far as I am concerned there is an open question as to whether in our system of government under our Constitution, with Chapter III, the Attorney‑General has exactly the same powers in Australia as the Attorney‑General in the United Kingdom has. I think that was raised in a recent case, not in the specific context of a fiat, but ‑ ‑ ‑
CALLINAN J: Batemans Bay, I think.
MR ORR: It certainly was raised in Batemans Bay.
KIRBY J: It is not true to say that there has been many fiats. I think this is the first fiat for many years, if not since the DOGS case.
MR ORR: As the Law Reform Commission report records, there was some research into the number of fiats granted and there are a regular number of fiats. There are not a lot of fiats, but taking into account both the Commonwealth and the States ‑ ‑ ‑
GUMMOW J: We will worry about the Commonwealth level at the moment. When was the last Commonwealth fiat?
MR ORR: It was 1990, your Honour, I can find the date.
GLEESON CJ: They usually grant State jurisdictions for charity cases, but that has nothing to do with what we are concerned with.
MR ORR: That is right, your Honour.
KIRBY J: That is a different kettle of fish, that does not run into the problem with Chapter III.
MR ORR: That is correct, your Honour. What we are looking at here is the equivalent of the enforcement of public rights by declarations ‑ ‑ ‑
GAUDRON J: No, we are not. What we are looking at here, according to what your client said through Mr Jackson half an hour ago, was whether Justice Sundberg’s decision was right or wrong.
MR ORR: Yes, your Honour.
GAUDRON J: Let us focus on that.
MR ORR: The fiat has been granted to enable the prosecutors to bring proceedings by way of seeking writs of prohibition, mandamus and certiorari in relation to the decision of Justice Sundberg, that is correct, your Honour. Our basic submission is that the Attorney‑General had standing to bring such proceedings ‑ ‑ ‑
GAUDRON J: Yes, nobody is challenging that.
MR ORR: The Attorney‑General can grant this fiat to the prosecutors in order to bring those proceedings, and under section 78A of the Judiciary Act, the Attorney‑General, on behalf of the Commonwealth, is able to intervene in these proceedings where a constitutional matter has been raised. The fiat has been granted, the proceedings have been brought, a constitutional matter has been raised, and therefore the Attorney‑General on behalf of the Commonwealth, as is his right under section 78A intervenes in these proceedings to put submissions ‑ ‑ ‑
GAUDRON J: Simply because you intervene highlights the question, “Is there a justiciable controversy? Is there a matter? Is it some nice schizophrenic debating game between the Attorney‑General wearing one hat, and the Attorney‑General wearing another hat?”
MR ORR: We would submit no, your Honour.
GAUDRON J: Sounds very much like “To be or not to be, that is the question.”
MR ORR: Yes, your Honour. I have put the position which the Attorney‑General takes, that is, that he has a right to intervene under section 78A of the Judiciary Act on behalf of the Commonwealth to put submissions in relation to a matter which raises issue under the Constitution, and that is what the ‑ ‑ ‑
GAUDRON J: Do you say you could put submissions contrary to those put by Mr Jackson?
MR ORR: Yes, your Honour. Well not at the moment, but later on. At the moment I am putting submissions in support of Mr Jackson.
GAUDRON J: For my part, I just do not understand why you should be able to put submissions in support of yourself, notwithstanding 78B. It makes a mockery of the judicial process.
MR ORR: With respect, it does not, your Honour. The Attorney‑General, as I have said, has granted his fiat in order for this matter to proceed, in order for the prosecutors to proceed with their claim. Without the fiat, it is our submission they do not have standing. The Attorney‑General has granted a fiat in order for them to have standing.
HAYNE J: So that the submissions we have heard are to be treated, are they, as the submissions of the relators?
MR ORR: That is true, your Honour.
HAYNE J: So that, in truth, what is happening by the grant of the fiat is that the relators are given standing to mount their case. The Attorney then, you say, can be heard in support of, or to the contrary of, the case mounted by the relators.
MR ORR: In relation to constitutional matters under section 78A of the Judiciary Act, yes.
HAYNE J: I think the Commonwealth Solicitor asserts a right to intervene if there is a constitutional point on all issues. Let us leave that debate to one side. But, as a result, you have, do you, a matter constituted by a controversy between relators, the hypothesis in respect of whom must be they have no standing, but a controversy between relators and those who oppose them, in which the Attorney can intervene in such fashion as the Attorney sees fit. As I say, there is a deep‑seated fundamental question about “matter” that is thus presented.
McHUGH J: Including issue estoppels and res judicata.
MR ORR: Yes, your Honour, that is true, but they arise with regard to the writs running to courts, essentially, just following on from the discussion we had earlier.
McHUGH J: Yes, I know, but a relator’s action is simply a suit brought by the Attorney‑General and he is the party bound by the findings, not the relator.
MR ORR: That is true, your Honour, because the relators are bound as well, in the sense that the Court gives a judgment with regard to the proceedings ‑ ‑ ‑
GAUDRON J: They might be estopped. They are not bound.
HAYNE J: It is not self‑evident to me that they are bound, but perhaps they are. They are bound because they bring their wallet. That is the function of the relator, to be responsible for costs.
MR ORR: That is right. They are bound as much as any other members of the community may be bound with regard to that decision because on their own they have no standing to bring the proceedings. They are simply members of the public, people without standing, and they take the Attorney‑General’s standing in order to bring the proceedings.
KIRBY J: So your theory of this, that the Attorney‑General might sit there with his application for a fiat and say, “Well, I do not personally agree with this but I can see that it is a very important matter and, therefore, I will allow it to be litigated in the Court and I will keep to myself the right to go along to the Court and, in the public interest, put any arguments that I might feel I should as to why the Court should not accept the proposition, but I believe it is so important and serious that the parties should have the opportunity and have the Court pass on it”.
MR ORR: Yes, your Honour.
KIRBY J: That is your theory of it, is it not?
MR ORR: That is, your Honour, and that is ‑ ‑ ‑
KIRBY J: And, in fact, it is to cure the many technical rules that sometimes stand in the way of standing.
MR ORR: Exactly, your Honour, and that is, in effect, what the modern tradition with regard to fiats has been, both in the McKinlay’s Case and the DOGS Case. In McKinlay’s Case the proceedings were brought against the Commonwealth to challenge the validity of Commonwealth legislation which the Commonwealth then defended.
GUMMOW J: Yes, but you keep failing to distinguish the Commonwealth, which is a body politic, from the Attorney‑General, who is a particular officer.
MR ORR: But under section 78A of the Judiciary Act the Attorney‑General intervenes upon behalf of the Commonwealth.
GUMMOW J: And it is just not true. No, you are not following what I say, so perhaps I should not persist.
MR ORR: But that is what section 78A ‑ ‑ ‑
McHUGH J: Well, do not excite me about 78A. The constitutional validity of that section has never been determined. It might have to be one of these days.
MR ORR: Well, on its face, your Honour, section 78A says that the Attorney‑General intervenes on behalf of the Commonwealth and, certainly, with regards to ‑ ‑ ‑
GUMMOW J: What I am putting to you is, in McKinlay he was not appearing on two sides of the record. The other party was the Commonwealth. Who the counsel was on the day does not interest me at the moment, but it was the Commonwealth.
MR ORR: Yes, well, that is right. The people with the Attorney‑General’s fiat were challenging Commonwealth legislation and the Commonwealth came along and defended that legislation for the very reason that it was thought important that this issue be ventilated in the Court and determined and, similarly ‑ ‑ ‑
HAYNE J: An issue that was going to be ventilated, in any event, by the other two actions, the demurrers in which were heard at the same time in McKinlay, one, an action brought by the Attorney of a State and the third action, the action brought by an individual elector. Again, we need to understand what was happening in McKinlay’s Case and we cannot simply sweep aside the fact that there were three actions heard together and extract from it some “modern tradition”.
MR ORR: That is right and I agree with what your Honour’s said about the DOGS Case as well, but the bottom line is that in the DOGS Case the Attorney‑General for Victoria granted his fiat and that fiat was prosecuted and the Attorney‑General for Victoria also came to the proceedings supporting the standing of those who had the fiat but opposing them on the substantive matter they were arguing about. Similarly, in McKinlay, the Attorney‑General for the Commonwealth granted his fiat in order for the proceedings to proceed and the Commonwealth came along and defended the legislation against the challenge. That is, in our submission, the modern tradition with regard to fiats.
GAUDRON J: Now, the basis, I should have thought, for the Attorney‑General’s right to intervene in constitutional matters was because the Attorney‑General has a special role in relation to the integrity of the Constitution. Would you accept that?
MR ORR: Yes, your Honour.
GAUDRON J: Yes.
GUMMOW J: Is that not what Sir Owen Dixon says in the Railways Case 44 CLR 319 at 331? This is all basic boiler‑plate law, really, in this area.
MR ORR: That is right.
GAUDRON J: So your intervention is because of your special role in relation to the Constitution?
MR ORR: Yes, your Honour.
GAUDRON J: Good. Well, now, tell me why that allows you to have – tell me what the matter is, I suppose is the first part, the parties to it and the substance of it.
MR ORR: The parties are the prosecutors who sue at the relation of the Attorney‑General, the Attorney‑General having given them ‑ ‑ ‑
GAUDRON J: Have you authority for that, that the parties are the prosecutors who sue on the relation of the Attorney‑General?
MR ORR: In these proceedings that is who the first party is.
GAUDRON J: Is the Attorney‑General a party to the controversy?
MR ORR: Yes, your Honour. The Attorney‑General has given his fiat and standing to enable the prosecutors to bring the proceedings. He has given his standing to enable that to be done. That does not mean that he supports all the arguments which they are going to put with regard to the Constitution.
GAUDRON J: No, forget about what the Attorney‑General supports or does not support. Is he a party to this controversy which is said to constitute a matter which is within this Court’s original jurisdiction?
MR ORR: Yes, your Honour.
GAUDRON J: He is a party. Who are the other parties? Who, if any, are the other parties? The Attorney‑General and Justice Sundberg, I presume?
MR ORR: Yes, your Honour.
GAUDRON J: Anybody else?
MR ORR: They are the parties. Other people have intervened in those proceedings.
GLEESON CJ: Just a minute, Dr McBain is identified on page 92.
MR ORR: Dr McBain, yes, your Honour, and…..was sought against him.
GAUDRON J: He is party to the proceedings but I am asking you to identify for me the parties to the controversy because I heard the Attorney‑General say through Mr Jackson not half an hour ago that he does not seek relief against Dr McBain.
MR ORR: Yes, your Honour, that is what he said. I mean, the proceedings have moved on from what they formally provide.
GAUDRON J: So I am asking what the controversy is and who are the parties to it.
MR ORR: The controversy is between the prosecutors who assert that they are entitled to a writ against Justice Sundberg of the Federal Court for errors which he has made in his decision.
GAUDRON J: So the controversy is between the prosecutors and Justice Sundberg?
MR ORR: Yes, your Honour.
GAUDRON J: And it must also be a controversy between the Attorney‑General and Justice Sundberg, is it?
MR ORR: Yes, your Honour, the Attorney‑General has given his fiat to enable the prosecutors to pursue that controversy.
KIRBY J: Do we have to test this by what would have happened if none of the interveners had come along, none of the interveners on the other side of the table? Because then we would have had a so‑called controversy between the Attorney‑General, the relators and a judge who, by our convention, simply submits to the will of this Court, the orders of the Court. So we do not then have a very well constituted controversy, do we?
MR ORR: No, that is true, your Honour, but that may happen in other writs.
KIRBY J: Maybe the Attorney‑General could give a fiat to somebody on the other side.
GAUDRON J: But we can get to the controversy, can we not, if we allow you to speak for the Attorney‑General in a way that is different from the way he spoke through Mr Jackson?
MR ORR: I do not know that that is true, your Honour, because the Attorney‑General, in so far as I am making these submissions, is intervening under section 78A simply to put arguments with regard to the constitutional issues which have been raised. So if no constitutional issue had been raised, the Attorney‑General would not have that right to intervene and would not. It is simply intervening because in this matter, not only has a fiat been granted, but constitutional issues have been raised and they have been raised by the prosecutors in relation to some matters which the Attorney‑General representing the Commonwealth agrees with, and some matters which the Attorney‑General on behalf of the Commonwealth does not disagree with. So, therefore, the Attorney‑General intervenes, not to make the matter ‑ ‑ ‑
GAUDRON J: Very well. In this matter, which is constituted by a controversy between the Attorney‑General and, you say, the prosecutors, on the one hand, and Justice Sundberg on the other?
MR ORR: Yes, your Honour.
GLEESON CJ: One of the orders that Justice Sundberg made was a declaration that Dr McBain may lawfully carry out a treatment procedure in respect of Ms Meldrum. Is that part of the controversy? I am looking at page 59, order 3. Is that part of the controversy of which you speak?
MR ORR: Yes, your Honour, in so far as the prosecutors are challenging the decision of Justice Sundberg, then it is the whole of that decision and the orders made in that decision which are the record with regard to this matter, in so far as ‑ ‑ ‑
GLEESON CJ: Well, I may have misunderstood some of the evidence that I have read in the application book, but I had an impression that Dr McBain does not any longer want to carry out a treatment procedure in respect of the fourth respondent. Is that right or wrong?
MR ORR: I understand that is right, your Honour, although I cannot take you to it.
GLEESON CJ: All I seek to understand is what, if any, part in any controversy is played by the third order that appears on page 59 of the application book, because it is an order relating to the lawfulness of a particular form of activity between Dr McBain and Ms Meldrum. Is that or is it not part of the controversy?
MR ORR: Your Honour, in so far as the prosecutors are challenging the order made in the decision by Justice Sundberg, that, as we have heard, is not an element of that challenge. So, in so far as the decision ‑ ‑ ‑
GLEESON CJ: I want to make it clear that I am not really asking you questions about what is motivating people. I am not here seeking to psychoanalyse anybody or get to their motives, but I just want to know whether part of the controversy with which we are dealing is that declaration that was made by Justice Sundberg on page 59, order 3?
MR ORR: In so far as that order flows from the findings of Justice Sundberg and the earlier paragraphs, that is that the Sex Discrimination Act did operate in this case and that it did render invalid section 8 of the Victorian Act and therefore it did allow Dr McBain to undertake this procedure, then that is part of the controversy. As I understand it from what the prosecutor said, they are not pursuing any matter against Dr McBain and therefore, with regard to these proceedings, that may not be in issue any more. Certainly that order of Justice Sundberg flowed from his earlier orders and in so far as those earlier orders are challenged as revealing errors of law on the face of the record, then the flow‑on orders must be part of the proceedings as well.
KIRBY J: It does seem from the charity cases that there is authority that says the Attorney‑General cannot, as it were, be on different sides of the record or argue contrary to the position put by the relators. It may be that in a federal constitutional situation your theory is correct. Certainly, for the moment, I find it an attractive theory and that is that the Attorney‑General without judging the merits of the case believes it is sufficiently important that it should overcome all the technical problems of standing and should be heard and determined. That must be the subject of authority. You footnote McKinlay v The Commonwealth but I think at some stage you are going to have to give us the appropriate authority that says to forget about the charity cases. We are in a different realm of discourse. We are in a Federation. We have a Constitution. In those circumstances it is sometimes appropriate for the Attorney, without embracing the merits of the cause, to allow the cause to be argued disposing of the standing question because he may not agree with it or he may not agreed with it at all but it is important. That is my understanding of what you say and, to be honest, that was what I thought was the law but, if it is not the law, let us get the authorities. Your footnote 1 is not good enough.
MR ORR: I agree, your Honour. Since this has been in a sense put in issue by the Court, I agree that footnote 1 is not sufficient. It had not been put in issue before today by the other parties but, in so far as the Court needs to be satisfied with that, I would be grateful for an opportunity to put written submissions in relation to that.
GLEESON CJ: It might be desirable to put it in writing because you have more than taken up the agreed time.
MR ORR: I know I have, your Honour. Can I proceed with regard to the substantive matter?
GLEESON CJ: Yes.
MR ORR: With regard to the argument on the inconsistency point – and your Honours will remember that this is the point that section 22 of the Sex Discrimination Act makes it unlawful for a person to provide services to discriminate against another person on the ground of the person’s marital status. Section 32 of the Sex Discrimination Act, however, provides that this section 22 does not operate in relation to services “the nature of which is such that they can only be provided to members of one sex”. In this case it is section 8 of the Victorian Act which provides that:
(1) A woman who undergoes a treatment procedure must –
(a) be married and living with her husband on a genuine domestic basis –
The treatment procedure, as Mr Jackson said, is defined in section 3 of the Victorian Act. It is “a fertilisation procedure” under paragraph (b) of the definition of “fertilisation procedure”. That is the placing of an embryo in the womb of a woman. Your Honours, the key issue here is the consideration of what is the relevant service for the purposes of both section 32 and section 22 of the Sex Discrimination Act. It is therefore a matter of statutory construction, in particular with regard to section 32 of the Sex Discrimination Act.
GLEESON CJ: Justice Sundberg said in answer to this argument that it is a service to a couple.
MR ORR: Yes, your Honour. Our submission is that that is incorrect.
GLEESON CJ: What is wrong with that?
MR ORR: There is obviously a range of ways in which service can be classified. We set out at paragraph 29 of our submissions and the footnotes in relation to that a range of ways in which services can be classified. They can be classified by who contracts for it, by who is the physical recipient of it, by who is affected by it and by any range of ways, by the medical treatment which it affords. It can also be classified at a range of levels, that is at the highest level, perhaps medical services, perhaps gynaecological services, perhaps the specific physical service that is provided. The range of ways is set out in paragraph 29 of our submissions and the footnote there.
GAUDRON J: There has to be some level of abstraction, does there not?
MR ORR: Our submission is that it is the physical service ‑ ‑ ‑
GAUDRON J: Because if you look at section 32, it is provisions of “services the nature of which”. So we are not looking at the exact services. We have to identify the nature of those services before we can begin to apply section 32. I would have thought that required a fairly high level of abstraction.
MR ORR: Well, it certainly requires identification of what the nature of the services involved. In our submission, it requires – for reasons I will come to briefly in a moment – a low level of abstraction. But, certainly, there is a choice to be made with regard to the operation of section 32: what level of abstraction and how is the nature of the services to be determined.
KIRBY J: Why did the Parliament put those words in? I mean, I understand Senator Harradine’s amendment, but why would that not have been dealt with just by saying, “services which are such that they can only be provided”. Why did it have to be of “the nature”? Because, with Justice Gaudron, I am inclined to think that does lift it to a higher level of abstraction.
MR ORR: Well, as to the principle involved, the principle was to remove services which could only be provided to one person from the general operation of the Act, as you have said, because there was significant criticism of the Bill, that it may have dealt with matters such as abortion and other matters like that. So section 32 was put in there in order to make it abundantly clear that issues such as abortion and sterilisation were not caught by the Act. If your Honours go to paragraph 30 of our submissions, there is a quote there from the second reading speech and from later in the debate, by Senator Ryan that makes it clear that:
We have now moved the amending provision to clause 32 –
So what they have done is – there was a bit of history to this, but essentially what she said in the second reading speech is that clause 22, now 32, makes it clear that the Bill does not apply:
to the provision of services the nature of which is such that that they can be provided only to people of one sex ‑ ‑ ‑
McHUGH J: Yes, but I am not sure that that analogy that Senator Ryan gave about abortion is valid in this context. At the moment, I must say I think the argument of you and Mr Jackson is right about the physical nature of the service so far as section 22 is concerned. But your argument treats the service in 32 as referring to the same service as is identified under 22. Why is it not the correct way to read 32 as, in effect, a general exception? So it is not concentrating on any particular service that takes place in space time at any moment. It says:
services the nature of which is such that they can only be provided to members of one sex –
are not within the operation of this Act.
MR ORR: Yes, your Honour.
McHUGH J: So you just look at it that way. You do not ask yourself what was done in a particular case. You ask yourself, “Does this fall within a service the nature of which is such that it can only be provided to members of one sex?”
MR ORR: Yes, I think that is true, your Honour, but in this case we have to focus on section 8 as well – the Victorian legislation – because the decision that Justice Sundberg made was that that legislation was invalid because of the operation of the Sex Discrimination Act, and it is clear from that section 8. So it is not really a case where someone is simply bringing a claim that some treatment they received is unlawful, when some sort of different analysis needs to go on. In this case, section 8 of the Victorian Act actually sets out what the service is that is being talked about, and it is clearly, in that section, a physical service to women which involves the placement ‑ ‑ ‑
McHUGH J: I understand that and I have to say that, at the moment, anyway, I do not find persuasive Justice Sundberg’s proposition that this IVF treatment is a service for a couple. It seems to me at the moment it is a service for a woman.
MR ORR: That is right, and that is how section 8 of the Victorian Act classifies it. It says it is for “a woman”, and the actual physical nature of the service is a service which relates to a woman. If you see in section 32 it specifically provides that ‑ ‑ ‑
McHUGH J: Section 32 is talking about “the provision of services the nature of which is such that they can only be provided to members of one sex”. If you talk about “reproduction services”, they can be provided to members of both sex.
MR ORR: That is right, and so the classification as “reproduction services” takes them above, so that by classifying them as “reproduction services” you are taking them out of section 32.
KIRBY J: The point being made is that the clue is in the section, both “services” and “nature of which” are taking you up to this higher level of abstraction.
MR ORR: Except the words “provided to members of one sex”, so you have got to look at who are the services provided to. It is not who are they provided for, that is to whose benefit ‑ ‑ ‑
McHUGH J: No, it just states “that they can only be provided”, so it dealing with a hypothetical case.
MR ORR: Yes.
McHUGH J: The difficulty I have at this second stage of your argument is that it seems to me that you transfer the service in section 22 to the service, the nature of which has to be defined for the purpose of section 32, whereas section 32 seems to be dealing with a hypothetical situation and arguably at a high level of abstraction. After all, it talks about “the nature of which”. If you argument was right, why did not section 32 simply say “Nothing in Division 1 or 2 applies to the provision of a service that can only be provided to members of the one sex”?
KIRBY J: That is what I asked you 10 minutes ago.
MR ORR: Yes, your Honour, and as to the drafting, as to why “nature” is put in there, I cannot say, and I do not know the debates are very useful. It clearly wanted to be an ambulatory provision though, it was clear that this was not to be stuck at a particular period of time and was to look to ongoing treatment. The use of the term “nature” may well be that it was looking at future developments in particular.
GLEESON CJ: Sterilisation provides a good illustration of the problem, does it not? You can sterilise woman and you can sterilise men, and if you talk about sterilisation that is a service that is capable of being provided to males or females. If you talk about a particular kind of sterilisation at a lower level of abstraction, then that might be of a kind that is only capable of being applied to a woman or to a man. What assistance does the Act give you in deciding the level of generality or particularity with which you characterise the service?
MR ORR: We say that that because it is provided to members of the sex and it is looking at physical services, and in addition ‑ ‑ ‑
McHUGH J: That is an assertion. You assert it, but where in the Act do you get any indication that section 32 is referring to a physical service? The words “the nature of” tends to tell against it.
MR ORR: In one ‑ ‑ ‑
KIRBY J: As does the syntax, such that “can only be provided to members of one sex”, it is talking about the hypothetical.
MR ORR: Yes, but if we are to go into a higher level abstraction such as fertility services, then nothing will be caught by the section because everything, in a sense, can be taken to a higher level of abstraction. These are all health services, or these are all fertility services, or they are services to assist people to become pregnant or to stop couples to become pregnant, or assist people to become pregnant. So all the services that this might catch ‑ ‑ ‑
GAUDRON J: I am not too sure that that is right. It may be something like maternity leave. Is the ground of discrimination “sex”?
MR ORR: No, we say the ground of discrimination is a mental state.
GAUDRON J: No, I am sorry, this “sex” - as the Act presently stands - whether or not it is consistent with the Convention is beside the point - a male could avail himself of this, and in fact men have availed themselves of this Act. I seem to remember males complained that only women could go to the women’s only baths at Coogee.
MR ORR: Yes, your Honour.
GAUDRON J: That may bring in section 32, or it may not. What if a male were to complain that his employer is providing maternity leave to women, and not to men? Section 32 would operate, would it not?
MR ORR: Well, no, your Honour. We would suggest that it would not operate in those circumstances.
GAUDRON J: Why not?
MR ORR: It is not a service, the provision of services.
GAUDRON J: Section 32 ‑ ‑ ‑
MR ORR: It talks about services, so in our view ‑ ‑ ‑
GAUDRON J: Well, let us say it is providing special medical services for pregnant women in its employ.
MR ORR: Yes. If they were services of the nature of which, for example, could only be physically given to a woman or to a man, to take a man as an example, which Justice Sundberg does, for example, or a vasectomy, if that is the sort of level of service we are providing, then section 32 would mean that there could not be a complaint with regard to a vasectomy as there could not be a complaint with regard to the service of providing an abortion, or there could not be a complaint with regard to the service of other sterilisation mechanisms. If I could just go to what Senator Ryan said, which is quoted in our submissions after the quote with regard to the second reading speech. Just starting at the second sentence:
One cannot say that it is discrimination to refuse a man an abortion since in the nature of that service it cannot be offered to a man. … However, in order to clarify what was already in the Bill, an amendment to clause 32 was incorporated which clarifies that the Bill does not apply to services the nature of which is that they can be provided only to people of one sex.
In particular, the abortion example.
I should make it clear, because there has been some discussion about this, that sterilisation is a procedure the nature of which can apply only to one sex. Although it is possible for males and females to have sterilisation procedures, those procedures are, of course, entirely different.
So the Minister there is arguing for a very low level of generality in saying you should not characterise this as sterilisation procedures or fertility or non‑fertility procedures. You have to look at the specific procedure involved, and in this case, the example she gives us, sterilisation procedures and an abortion. In our view, the procedures under section 8 of the Victorian Act are analogous to those. At a high level of generality, they can be seen as enabling people to have children but at the specific physical, medical treatment, they are procedures which directly relate only to a woman.
GLEESON CJ: Yes, I think we have that point. How long do you expect to take?
MR ORR: Thank you, your Honour, I will just - ten minutes, your Honour, is that ‑ ‑ ‑
GLEESON CJ: You are cutting into the time of other people. That is the only reason I ask the question.
MR ORR: I am sorry, your Honour. I could, in fact, take some time in the time I have for tomorrow, if that would assist. I will try and be brief, your Honour. The other provision which Justice Sundberg draws on is to say that you look at the end purpose of the treatment. Justice Sundberg took this approach and, again, it is a high level of generality. Our submission is that this is an inappropriate approach and that, indeed, if you took that high level of generality, nothing falls within it, and that is one of the tests which we say section 32 must pass, and that the approach taken to generality must mean something must fall within it. If all these procedures are seen as simply medical procedures or procedures to enable couples to have children, nothing will fall within section 32, which was clearly not the intention of the legislation. It would rob the legislation of its operation.
KIRBY J: If you look at the section, section 32, and it is ambiguous, as I think it is, would not a principled construction of it be to look at it as an exception within a statute whose overall purpose is to strike down discrimination and, therefore, on its own words to give it a construction which is a more narrow one rather than the broader exception that you are arguing for?
MR ORR: Yes, your Honour, but the section still has something to do if that reading meant that there was no exception which fell within section 32.
KIRBY J: Absolutely. It is intended to, and I think does, operate in the case of abortion and perhaps also, say, testicular procedures of some kind, but the question is whether, if it can fall into a higher level of categorisation, a principal construction of an anti-discrimination statute, to fulfil its purposes and the purpose of the Convention, is not to give it a narrow exception to the general rule of non-discrimination.
MR ORR: Yes, your Honour, I agree with the general approach that as an exception it should be narrowly construed, but we would need to differentiate abortion from the treatment which is being given under section 8 of the Victorian Act and, in our submission, there can be no distinction between the two. Both of them can serve broader purposes. Both of them can involve a man and a woman or a husband and wife. Both of them are part of general medical services provided. The thing which in our view makes them the same is that both of them are physical services just provided to one person, one sex: the abortion to the woman. In the case of services under section 8, to the woman also.
KIRBY J: But all treatment is to the patient and you cannot give it such a construction that it is going to allow that to be the operative principle, otherwise everything will walk out of the statute in terms of medical services. Everything will be gone.
MR ORR: Exactly, your Honour; you cannot give it such a meaning that it takes over the statute and I agree with your Honour’s approach about narrowly construing section 32, but in our view it must be construed so that it has some operation. It also must be construed in light of the clear intention of the legislature, which was to exclude things such as abortion and sterilisation procedures to one particular sex from this provision. Our submissions on this issue are dealt with in our written submissions and I will not take up time with them further.
The second issue which I would just briefly like to refer to is the issue about the availability of relief in which the Attorney‑General also supports the application of the prosecutors, and this is set out in paragraphs 55 to 65 of our submissions. It is clear in our view that Justice Sundberg had jurisdiction under section 39B(1A)(b) of the Judiciary Act. It is clear that Justice Sundberg had authority to decide questions of law as well as questions of fact. He had authority to decide the constitutional question before him. Prohibition and mandamus are available in the High Court’s jurisdiction under 75 of the Constitution to an officer of the Commonwealth, including a court. So, in our submission, these remedies ‑ ‑ ‑
GAUDRON J: For non-jurisdictional error?
MR ORR: No, I will come to that, your Honour. In so far as prohibition and mandamus are concerned, they are only available, in our submission, for jurisdictional error.
GAUDRON J: And therefore, the nature of the controversy constituted when they are sought is somewhat different from the controversy that you say exists here or that is said exists here. You will accept that?
MR ORR: No, your Honour. With regard to prohibition and mandamus, they will run if there is a jurisdictional error in the Federal Court. It is our submission that there was no jurisdictional error in the proceedings before Justice Sundberg.
GAUDRON J: Yes. What I am saying is, if you seek mandamus or prohibition for jurisdictional error, the controversy is as to whether the judge, we will say, exercised a jurisdiction which she did not have or whether she refused to exercise a jurisdiction which she did have, is it not?
MR ORR: With regard to those remedies, yes.
GAUDRON J: Yes. That is not the sort of controversy we are concerned with here, is it?
MR ORR: No. That is true, your Honour, and in our submission, prohibition and mandamus should not be issued in these proceedings, we agree, but we need to go on to the next step though and ask whether certiorari is available. That is just what I was coming to and our submissions deal with. Certiorari is available ‑ ‑ ‑
GUMMOW J: Wait a minute, what do you say about Justice Deane’s judgment in Gray? You disagree with it?
MR ORR: Yes, your Honour.
GUMMOW J: Why?
MR ORR: We say he was in dissent. In our view ‑ ‑ ‑
GUMMOW J: It does not matter to me for the moment whether he was or was not in dissent. What I am putting to you is something which to me, at the moment, is quite compelling and I am inviting you to tell me why that is wrong.
MR ORR: Yes, your Honour. We deal with this in paragraph 63 of our submissions. It is clear that the High Court has continued to grant certiorari directed to judges of Federal Courts and we refer in the footnote there, and in particular Re Macks; Ex parte Saint in which certiorari was granted. There is no reason in principle why certiorari should not be granted to judges or federal superior courts and that is – that the remedy not under section 75(v) because, in our submission, under section 75(v) certiorari is only available to ‑ ‑ ‑
GUMMOW J: We understand that.
MR ORR: But under section 76(i) there is no reason why certiorari should not be granted against a Federal Court in an appropriate circumstance.
GUMMOW J: For error of law in the face of the record which is not jurisdictional error, despite the presence of section 73 and the possibility of the Parliament providing for an exceptional reservation under 73.
MR ORR: Yes, your Honour.
GAUDRON J: So then one asks what is meant by that wonderful phrase “in appropriate circumstances”?
MR ORR: There is a discretion in the Court as to whether the remedy should ‑ ‑ ‑
GUMMOW J: So this idea of certiorari came into existence in England at a time when there was no modern appellate system.
MR ORR: Yes, your Honour.
GUMMOW J: Here you have a bifurcation involved.
MR ORR: Yes, your Honour.
GUMMOW J: It is a new ball game and it is to that that Justice Deane was addressing himself and to that you will not address yourself.
MR ORR: Justice Deane’s concern was the interference of the High Court under its jurisdiction in other courts, other Federal Courts.
GUMMOW J: The Attorney‑General seems to take the view that it is part of his role to undermine the structure of the federal judicature which he has erected through these courts. That is what strikes me as odd at the moment.
MR ORR: That is not true, your Honour. The traditional view of the Court is that prohibition ‑ ‑ ‑
GUMMOW J: By allowing disturbance of a settled controversy. The whole goal, or what is often stated to be stated to be the goal, of the judicial process of Chapter III being the quietening of controversies.
MR ORR: Yes, your Honour, but if there was a matter of public interest which the Attorney‑General thinks should ‑ ‑ ‑
GUMMOW J: What is this public interest? It is just political pressure groups, is it?
KIRBY J: That can sometimes be in the public interest.
MR ORR: Well, the Attorney‑General has taken the view that this litigation should proceed notwithstanding the questions with regard to standing which the prosecutors may have.
HAYNE J: That is a matter for which the Attorney is politically accountable in accordance with political processes. The grant or refusal of a fiat is not a matter for which the Attorney is legally accountable. It is a matter of irrelevance, at least to me, whether the grant was improvident or no. Those are matters for the political process.
MR ORR: Yes, your Honour. With regard to the writs of prohibition and mandamus, the ‑ ‑ ‑
GAUDRON J: But here, of course – I am sorry to say this again – you are heard to deny in relation to prohibition and mandamus what you have earlier said through Mr Jackson. You are now being heard against yourself.
MR ORR: Well, the position which the Attorney‑General takes on the constitutional issue which is raised, which is what is the extent of section 75(v) of the Constitution in the jurisdiction it gives to the High Court to grant writs of mandamus and prohibition, and the Attorney‑General’s submission is that those writs should issue for jurisdictional error.
GUMMOW J: When there is some public interest in the subject matter of this controversy which has been settled through the exercise of judicial power.
MR ORR: Yes, your Honour, and the Court’s view has been that those writs do issue to courts.
GUMMOW J: Further agitation of which is not of any interest to the parties to that dispute.
MR ORR: They are issues which are relevant and which may go to standing and discretion to grant, but it is clear that the remedies can issue to a court and it is clear that the standing requirements with regard to prohibition at least are ‑ ‑ ‑
GUMMOW J: I am not worried about standing, I am worried about this notion of certiorari in this context, as Justice Deane was, as I said to you about a quarter of an hour ago.
MR ORR: Yes, your Honour. In paragraph 63 of the submissions we attempted to deal with the issue of Justice Deane and we say that there is no basic matter of principle which means that the writ of certiorari should not issue under section 76(i) of the Constitution. Where there is a constitutional issue ‑ ‑ ‑
GAUDRON J: I will tell you why there is a basic reason, which you might like to think about. The nature of judicial power, it has been said time and time again, is to give a final and binding decision between parties with respect to their justiciable controversies. This makes judicial decisions provisional. It means that they can be set aside other than by the appellate processes and other than at the initiative of the parties and that is, I should have thought, a fundamental reason why certiorari might not lie. But if the Attorney‑General will not come to grips with that, then I suppose the Attorney‑General will not come to grips with it.
MR ORR: Yes, your Honour. All I can do is refer to the argument in that paragraph and refer to the facts that, as I have said, prohibition and mandamus will go to courts and that is the longstanding view of this Court that those writs will go, as I said, for jurisdictional error. Certiorari has also been granted in relation to courts and Mr Jackson referred your Honours to several of those cases, and I also refer your Honours to Reg v Cook Ex parte Twigg (1980) 147 CLR 13 and to the other cases cited in our submissions where certiorari has gone to a court.
GAUDRON J: For non-jurisdictional error?
MR ORR: Well, no because in those cases the reason certiorari went was because prohibition also went and certiorari was ancillary or a related remedy and was therefore the most appropriate remedy. We agree, your Honour, under section 75(v), certiorari will not run of itself for jurisdictional error. Our submission is that under section 76(i) of the Constitution dealing with constitutional matters, it may well be that certiorari is an appropriate remedy there.
GUMMOW J: But Mr Jackson says not just 76(i), he says any head in 75.
MR ORR: As you will see from our submissions, your Honour ‑ ‑ ‑
GUMMOW J: You part company there, do you?
MR ORR: No, we do not, your Honour, in particular with regard to section 75(iii) of the Constitution and we set out in our submissions our reasons for taking that view.
GLEESON CJ: Yes, thank you, Mr Orr. Yes, Mr Ellicott.
MR ELLICOTT: Your Honours, in relation to section 32, we adopt the submissions that have already been put. I would only like to make this observation, that I think both Senator Evans and Mr Young in the Senate and in the House indicated that in a sense section 32 was not necessary, that it really was a declaratory provision and that had it not been there, then section 22, for instance, would not have been interpreted any differently. It was really put there to deal with an objection that Mr Harradine took.
Your Honours, they say fools go in where angels fear to tread. I do not want to get into the arid debate about certiorari as it tends to be lengthy and I do not have the time. But there is one matter that I wanted to refer to and that was the nature of the fiat, because this Court is always interested in looking at the matter as a matter of substance and not getting bogged down in the intricacies of writs. But I do notice that the latest fiat is:
The grant of the fiat is limited to an application for relief on the basis that the Sex Discrimination Act 1984 (Cth) does not, as a matter of construction, apply –
et cetera. In other words, it is not limited to section 75(v), and no doubt your Honours have noticed that. There would be no reason, I would submit, why the relator, the Attorney‑General, could not start a proceeding in this Court by way of writ and statement of claim, which no doubt might be demurred to, in which the Commonwealth and the State of Victoria were joined. There is a body which is set up under the Infertility Treatment Act – it is called the Infertility Treatment Authority – and its function is to supervise and to make sure that the Act is carried into force. No doubt, it also could be a party.
The fiat, we would very shortly submit, without going too far into it, only for consideration by the Court – the fiat is wide enough to justify, we would submit, such an action and, as we understand it, the second proceeding, a notice of motion, is sufficiently adapted for that purpose because the question ‑ ‑ ‑
KIRBY J: I think the problem though is that if that had been done, parties on your side of the record could have said, “We will just leave Justice Sundberg’s decision standing there in respect of Ms Meldrum and the doctor. We will forget about it and we will bring a constitutional proceeding in this Court”.
MR ELLICOTT: That is right.
KIRBY J: But that is not what has been done. What has been done is to seek a certiorari against the order that affects private parties and I think that is what ‑ ‑ ‑
MR ELLICOTT: Well, I am just pointing out that the second fiat is wide enough to constitute such a suit. This Court in the past has not been slow to get to the essence of a matter and I would submit that the fiat is wide enough to invite the prosecutors, so‑called, they would be plaintiffs, to institute such a proceeding and it could, as I have seen in the past, be nunc pro tunc. But getting to the issue – and the issue is a very important one, and that is: what is the true breadth of section 22 of Act in the circumstances of this case?
CALLINAN J: Would not we only do that, Mr Ellicott, if we had a particular set of facts before us?
MR ELLICOTT: The facts are clear. There was a decision by Justice Sundberg. There is an Infertility Treatment Act still in force in Victoria. There is an argument, and a substantial argument, I would hope, that his decision is in error.
CALLINAN J: Mr Ellicott, we, at least in those circumstances, would have the facts which were put before Justice Sundberg. Would not the Court always be looking for some particular factual situation before it made a declaration of invalidity?
MR ELLICOTT: Not on a question of inconsistency because it is a matter of – there may be questions of fact of judicial notice which the Court can take into account in relation to infertility and the like, or such facts may be, indeed, adduced. We, in our argument, have sought to set out some of those factual matters which we would hope are within judicial cognisance. But so far as a – I will call it an arid constitutional question is concerned, it has been the practice not to require detailed facts in relation to it because, really, it is a question of the construction of the State Act and the Federal Act and determining whether section 109 strikes one down.
McHUGH J: But you say it is a case of textual collision, not operational inconsistency?
MR ELLICOTT: Yes, not - - -
McHUGH J: Not operational inconsistency?
MR ELLICOTT: Yes, textual, because right at the heart of it is section 9 - and I will get onto the argument because we do not have much time – section 9(10) has been adverted to and the question really is to what extent does section 22 and section 6, that are very relevant, give effect to the Convention? Now, that takes one to the Convention and the Convention itself is replete, we would submit, with indications that it was intended to operate in relation to discrimination between men and woman, and it is not ‑ ‑ ‑
GAUDRON J: So would you accept thought that there would be discrimination between men and women if a service – we will worry about the level of generality later – is available to unmarried men, but is not available to unmarried women?
MR ELLICOTT: Your Honour, I would agree that a real issue would arise under section 22 if such a matter occurred, for instance, in the Commonwealth Public Service or in relation to trading corporations or interstate trade and commerce, if such a matter of fertility treatment could so arise. I suppose it might if the Commonwealth was offering fertility to treatment to its employees, but once we go into the facts of this case, which lie outside those other areas of power, one is thrown back to the Convention and the question is simply a matter of looking at the Convention in the light of the Vienna rules and they, on our submission, clearly indicate that what was the matter of grave concern was that there should be equal rights between men and women ‑ ‑ ‑
GAUDRON J: And I am asking you, does that mean, equal rights as between unmarried men and unmarried women?
MR ELLICOTT: It means equal rights between men and women to the extent that the Convention so declared and I would think that in terms of what happened at that particular time, in 1980, the issue of in vitro‑fertilisation or single women having children or male - men having children alone, as single parents, that issue was not before those who drafted that Convention and therefore, I would submit, this Court will not find that particular issue that your Honour raises with me as falling within this Convention. That is my answer.
GAUDRON J: No, that is not quite what I am putting to you, Mr Ellicott. What I am suggesting is this: when you look to the question of discrimination you have to compare one category of people with another category of people. For example, you might compare female employees with male employees or you might, as in Australian Iron and Steel and Banovic compare female employees of a particular level of seniority with another control group, what have you. I am asking you, is it right to determine whether there is discrimination, you have to compare unmarried women with unmarried men and not simply compare the position of unmarried women with married women.
MR ELLICOTT: If you were looking at the question of discrimination apart from the Convention, my answer to your Honour is yes, but it is irrelevant to this matter if my submission in relation to the Convention is correct, because I submit that that particular question does not come out of this Convention, because it was not considering single women versus single men except in those areas that it deals with - for instance, in employment, and education, and the like. But when it came to ‑ ‑ ‑
GAUDRON J: But why does not the expression “discrimination against women” include - particularly with the brackets, “(whether or not married)” or something of that nature - a situation in which there is different treatment of single women and single men?
MR ELLICOTT: I can only repeat what I have put to your Honour, and that is not an issue that this Convention dealt with. It does not matter, I would concede, that the person is a single woman and vis-à-vis a man, but the question of single men versus single women was not an issue under this Convention.
HAYNE J: But does that proposition amount then to this, that provisions of services to any man, whereas provision of same service to women if, but only if, the woman is red-headed, is non-discriminatory?
MR ELLICOTT: No, it does not mean that at all.
HAYNE J: What is the difference between that and the criterion of operation being marriage or non‑marriage?
MR ELLICOTT: We have come here to debate the issue relating to fertility treatment. My submission is that there was nothing further from the minds of those who drafted and signed this Convention than the question of fertility treatment. If one wants to go into the issue of whether a red‑headed woman or a black‑headed man should be given employment and whether that is an issue of discrimination, it may well apply – it may well come within the terms of one of these articles. My concern is to submit that nothing relating to fertility treatment comes within these articles. It just was not in the mind of the Convention.
It is such a controversial issue, and if I may say so, the population of the world has a large number of Catholic people in it. Had the issue of IVF been before that Convention, one would have expected there to be countless references in the travoux préparatoires and one would have expected, therefore, that there would have been all sorts of issues about the rights of children that came from these fertility procedures and the like. It was never an issue, we would submit with respect, that came out of that Convention.
Now, that means the Court, looking at obviously all the – and I will not take the Court through them, but the recitals are replete with the question of equal rights of men and women, equality between men and women, right through, and that is the issue. It is not, in our submission, a Convention which deals with discrimination between women, and that basically is what the issue in this case is about.
Now, that is not a constitutional issue, as we see it. That is a question of construction and the Convention, therefore, speaking as it does, dictates we say as a result of section 9(10), that section 22 will only be given such operation as gives effect to it. Therefore it is dealing with discrimination between men and women and on the basis of sex, marital status, pregnancy or potential pregnancy.
It does not matter to our argument that we confine it to marital status, it can be potential pregnancy, but women shall not be discriminated against on the basis, for instance, obviously, as your Honours well know, in the past that women would go for a job and they might be asked, “Are you pregnant or are you about to get pregnant?” Those days, happily, may have passed but instances come up still, but that is what that is directed to as between men and women.
We must remember that a large part of the world that the Convention was dealing with had a situation where many women were in virtual slavery, many of them were still mutilated, women did not have political or social rights in some countries and it may have been a great shock to people who came from countries like Australia to find that really women were very well off in Australia compared with those in the rest of the world. I only say that to reflect on the issue that that basically is what that Convention is about and it instructs the construction of section 22 and if it does, then we say that that is the end of the matter and there can be no inconsistency.
The question has arisen: is it a service? If it is a service, it is a very – we adopt the first submission that section 32 applies but, if it does not apply, we say first of all: is it a service? It is a very odd sort of service because your Honours will remember that case dealing with HIV – IW v The City of Perth 191 CLR.
KIRBY J: But that was a very different sort of case.
MR ELLICOTT: Yes.
KIRBY J: That was a question of whether or not the provision of a planning grant was a service.
MR ELLICOTT: I only mention it so that your Honours will know that that is one case where the question of the meaning of “service” was considered.
GLEESON CJ: But, Mr Ellicott, it is not only a question of the meaning of “service”, is it? Section 22 is a section directed to a particular person – I mean in a certain case. It makes it unlawful for a person to discriminate against another person in relation to the provision of services. So the question is not whether the medical profession of Victoria discriminates between certain groups of people and other groups of people. As I would understand it, the question is whether Dr McBain, if this legislation ‑ ‑ ‑
MR ELLICOTT: Discriminating against the ladies.
GLEESON CJ: ‑ ‑ ‑ in providing the services that he provides, is discriminating against Ms Meldrum.
MR ELLICOTT: Yes, that is right.
McHUGH J: That is the great weakness of the section and, unfortunately, as it appears to some, the sex discrimination legislation throughout this country was really based on the English Race Relations Act. They followed the structure of it which, in terms of some sexual types of discrimination, is most unfortunate, because section 22 allows the provider to identify the goods and services that he will or she will provide. If somebody has a men’s shop, then there is no discrimination because he does not sell women’s clothes, no discrimination within the meaning of section 22, because he just provides men’s clothes. The same with a frock shop. This is part of the problem of section 22, that people can arrange their affairs in a way that they can discriminate but 22 does not bite at it.
MR ELLICOTT: If a man goes in and want a frock, he cannot be discriminated against.
McHUGH J: He cannot be discriminated against, that is right.
MR ELLICOTT: Or if a woman comes in and wants men’s shoes, she cannot.
McHUGH J: No, but if the woman goes into the menswear shop and asks for a frock, the fact is that he says, “Well, I do not sell frocks”, does it involve any breach of section 22?
GLEESON CJ: But this raises the problem about the relief now sought and the relationship between what is going on here and what went on before Justice Sundberg. So far as I am aware, from my reading of the papers, we have not the faintest idea of what, if any, services Dr McBain provides to men. I would not know – I have a fair idea of one particular service he does not provide to them.
HAYNE J: The answer that you seek to make is that it is a complete answer for Dr McBain to say, “I practise as a gynaecologist”, period, that is it, and that that is a complete answer to the claim against you, seems to be the way the argument is put?
MR ELLICOTT: It is a complete argument in relation to discrimination, but in relation to the service, the service complained of is the service under the Infertility Treatment Act and one has to go to that to define, discover or identify what that service is. Now ‑ ‑ ‑
GLEESON CJ: But if we wanted to consider the question whether Dr McBain discriminates between men and women in the way in which he carries on his practice, we would have to know facts about Dr McBain’s service provisions that we just do not know.
MR ELLICOTT: Yes, but the assumption is that he is acting within the law of Victoria, assuming it to be valid. On that assumption, he will be doing the things – and this is one of the reasons why we say it is not really a services:
A person may only carry out a fertilisation procedure –
section 6 –
if
(a) he or she is a doctor . . .
(b) he or she is satisfied that the requirements of Divisions 2, 3 and 4 and section 36 have been met; and
(c) the procedure is carried out at a place . . .
Penalty: 480 penalty units or 4 years imprisonment or both.
Now, the purpose of this is to enable an infertile couple to have a child and it is not to cure infertility, obviously, and that is, we would submit, a peculiar sort of service in the sense that section 22 or the definition of service treat service like banking or insurance. This is a piece of social legislation in which the Government of Victoria, in its wisdom, has decided to assist couples to overcome infertility and ‑ ‑ ‑
McHUGH J: Yes, but it is a service.
MR ELLICOTT: And if you are going to find a service, well, we would submit, it is straining the language of “service” to call what is provided under the ITA Act, if I may shorten it, as a service, when it is replete with statutory requirements, counselling, consents that have to be approved, objections that might be taken by donor or spouse and then a person right at the end under threat of penalty having to be satisfied – one might assume it is almost a statutory duty – that the Act has been complied with in all these respects. But that is our short argument. We say it is not a service.
GLEESON CJ: We know that Dr McBain in fact had a rather different role in this litigation, but suppose it had been the case that Dr McBain was resisting attempts by the lady to obtain his services and was vigorously defending himself against an allegation that he was acting in contravention of section 22 of the Sex Discrimination Act. Would it have been open to Dr McBain to say, “As a medical practitioner, I provide the service of assisting infertile couples. I am not operating a sperm bank”. Would that have been a defence?
MR ELLICOTT: Would it have been an offence?
GLEESON CJ: A defence.
MR ELLICOTT: A defence.
GLEESON CJ: In other words, he would define his own services, as Justice McHugh put to you. He says, “I provide the service of treating infertile couples”.
MR ELLICOTT: Yes. Well, he cannot, if what he is doing infracts section 6 or 7. He cannot do it.
HAYNE J: But can he define his service, as he does – see application book 25 – as that of specialist gynaecologist? Can he say, “I provide medical services only to women”?
MR ELLICOTT: It is not a passport to avoiding the law, and the law says he cannot do it unless certain procedures are followed. That being so, one has to assume that he is going to act lawfully. The question that then arises is: if he is acting within the confines of the assumedly valid Victorian law, is that a service? We would submit it is not. If it is a service, then we say it is a service to a couple. As we explain in our submissions, we submit that it is not dealing with infertility. It is dealing with the difficulties, answering the problem that couples have because of infertility and having children, and it is using modern technology for that purpose – technology that the community at large, in some respects and in varying numbers, is very suspicious of and troubled about. That is why there is such controversy about these proceedings.
Now, on that particular question, if it is a service to a couple, then we would submit that section 22 does not speak to a couple, it speaks to a person, and therefore it does not apply. That is our first submission in relation to it. If section 22 is ‑ ‑ ‑
McHUGH J: Well, I do not know if that argument takes you very far, does it? After all, the Interpretation Act requires you to read the singular as the plural and vice versa, so 22 prohibits discrimination against other persons on the grounds of marital status. So if a single woman went along with a boyfriend and they were refused the service, there would be a breach of 22, would there not?
MR ELLICOTT: Yes, but the point, your Honour, is that you cannot in the context of this - and this gets also into our next argument, you cannot conceive of those people having this problem unless they are a couple.
GLEESON CJ: It depends what you mean by that. Suppose ‑ ‑ ‑
MR ELLICOTT: We are not going to have a ‑ ‑ ‑
GLEESON CJ: Suppose a woman goes along with a man, and she says to Dr McBain, “The two of us are not married and we do not live together in a de facto relationship, but I have been a great admirer of his for many years and he and I have made this agreement”.
MR ELLICOTT: Yes, well he cannot do it.
GLEESON CJ: You cannot do it under the Victorian law.
MR ELLICOTT: No.
GLEESON CJ: Why does that not offend section 22? Because, if “person” includes “persons”, Dr McBain, if he refused that treatment, would be discriminating between married people and people living in a de facto relationship, on the one hand, and a couple comprising a male and a female who did not live together but who desired to co-operate in production of a child.
MR ELLICOTT: We would submit that section 22 is directed at “persons”. It is not directed at “couples”, and that it is looking at the rights of individuals as against other individuals, and that the Victorian section is dealing with a very special situation where the government, for whatever reason it had in its wisdom, wanted to have this type of legislation and put it through the Parliament. If we be wrong in that, and prima facie it can be discriminatory, it raises the question which section 6, and indeed section 7, pose. That is to say whether this is what is called primary discrimination under section 6(1), or whether it is a secondary discrimination under section 6(2), and whether it follows whether section 7B applies. We say that if you go to section 6 and take it as the matter:
the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person of a different marital status.
You will notice that the marital status of the aggrieved person or a characteristic that appertains generally et cetera, or is generally imputed in section 6(1)(a), (b) and (c), those are each matters which are circumstances which can be the product of discrimination.
Now, in IW v City of Perth, this question of what the comparison should be was considered but not decided by this Court, but his Honour Justice Toohey and your Honour Justice Kirby did deal with it. It followed decisions in the Federal Court, which we have referred to, which say that when you are making the comparison, you cannot use, in looking at section 6, (b) and (c), for instance, as a reason for saying that it is materially different. It is a difficult concept, but what I wanted to submit was this, that in this case what you have on the one hand is a single woman; on the other hand you have a couple.
Their circumstances, we say, are materially different. For instance, it may be that it is a situation that a single woman does not have a relationship with a man, and that is a characteristic that appertains generally or a characteristic that is generally imputed, but infertility is not a characteristic that is imputed or appertains generally to single women. So what we have on the one hand is a single woman and, on the other hand, infertility in a couple, and that makes the circumstances materially different. That requires the Court to look at those decisions. We have referred to them in our submissions ‑ ‑ ‑
GAUDRON J: It may require some fact finding, may it not?
MR ELLICOTT: It may require some judicial knowledge of matters that may be of judicial notice, but not of any great difficulty, I would have thought, and not on that particular issue.
KIRBY J: On that question, what is the significance of the annexure to your submissions of Mr Muehlenberg on the challenge of homosexuality? What is the relevance of that to this case? I am referring to pages 193 and following in the application book. There is some very strange statements in that document about sex with Labradors, and so on.
MR ELLICOTT: Yes, I do not rely on that, your Honour, I am sorry ‑ ‑ ‑
McHUGH J: It should not have been in there. It is put in on some question of standing and the submissions that were put to a parliamentary committee have been put in but it does not advance the argument for standing one iota, to put in ‑ ‑ ‑
KIRBY J: It is full of statements about unhealthy practices and weird and strange assertions and it comes in your documents and it is in our book. I would not want you to think that I have not looked at ‑ ‑ ‑
MR ELLICOTT: I did not expect it to go in the book.
KIRBY J: Well, it is here.
MR ELLICOTT: In fact, it is very kind of your Honour to mention to me that it is there because I have not seen it. I do not rely on it and if it offends your Honour or any of the Bench ‑ ‑ ‑
McHUGH J: Well, it offends me.
MR ELLICOTT: I apologise, but I do not rely on it and I did not even know the book was going to be prepared. I thought we were just coming here to intervene on a question of law.
GAUDRON J: There is another point to it, too. We read these materials in preparation for the Court cases. Why we should be subjected to the waste of our time when you are not going to rely on it, I do not understand, and why we should, in addition, be subject to the offensive nature of it, I do not understand.
KIRBY J: On the face of things, it seems to be a strong argument for anti‑discrimination legislation.
MR ELLICOTT: I mean we are grown people. Your Honours, they are really not offensive and - - -
GAUDRON J: On the face of it, it seems to have a good reason for not allowing interveners in.
MR ELLICOTT: I mean, it is difference who you can read, but it is offensive - I suppose it is offensive on an evidentiary basis and somebody, I guess, should have objected to it in front of Justice Gummow. But it has all got into there as only representing the material that was put before the Court which was material that was put before the Senate and they do not get offended.
McHUGH J: When I read it over the weekend the thought occurred to me it ought to be stricken from our record. It is totally irrelevant.
MR ELLICOTT: Yes, and I would suspect there is a lot in that book that is irrelevant not only in ‑ ‑ ‑
KIRBY J: It may not be entirely irrelevant to the case, Mr Ellicott. It may not be because there would be some women who might say, if they were homosexual women, that they ought to have the opportunity of the fulfilment of a child and that may be something you wish to argue that they should not have and that the law of Australia upholds that submission. That is why I raised it. I did not raise it because I was particularly offended but because it might be relevant to your legal argument and if it is, I would like to hear it.
MR ELLICOTT: Yes. Well, the relevance so far as not that material is concerned – what I am addressing my remarks to is a much more general proposition that there are infertile couples. It has nothing to with a narrower debate that might involve other issues. It is concerned with a very broad debate and a very important issue, and that is whether children should be born to – just so far as this Act is concerned – it places in sections 5 and 7 the emphasis that the rights of children are paramount. Now, that is not strange or new to the courts. The role of the Chancery as parens patriae has been here with us for a long time. Therefore, those notions behind that particular statute are well embedded.
McHUGH J: Yes, but, Mr Ellicott, so far as standing was concerned, you would have made your point by saying this organisation put submissions to various parliamentary committee but instead we would give it all the detail of these submissions in respect of apparently proposed amendments to legislation. It has nothing whatever to do with the question of standing. The thought occurred to my mind as to whether it fell into the category that Sir Garfield Barwick used to describe as points of prejudice.
MR ELLICOTT: No, your Honour. Had they been points that we wanted to make, I would have made them and they are so far removed from my mind that I have not even read them, if I may say so.
KIRBY J: Not like you not to read everything, Mr Ellicott.
MR ELLICOTT: Your Honour, I did not read that because here there is a simply stated point of law.
GLEESON CJ: We will adjourn now, but one thing you might think about overnight is this - and it really gets back to where we came in early on this morning. In a sense, this proceeding involves a double layer of artificiality. The proceedings we have before us involve a challenge to the outcome of litigation in respect of which the parties to the litigation are not dissatisfied. The proceedings before Justice Sundberg were proceedings about the services provided by Dr McBain, evidently in circumstances where he was not really seeking to claim the protection of the Victorian law to justify the limitation upon services that he was providing, but was seeking an indication or a ruling, which he ultimately got, that if he provided certain services to another party to the proceedings, he would not be in contravention of any law.
MR ELLICOTT: It is a declaratory order.
GLEESON CJ: Now, when you talk about general issues and general questions, the consequence of that set of circumstances is that we do not have before us anything except the controversy as it was shaped before Justice Sundberg. We have limited information about the practices of Dr McBain. We only know enough about the way he provides services to understand the way in which the case was framed and argued before Justice Sundberg but, as has been mentioned before, if any question arose as to whether Dr McBain, for example, was discriminating between men and women, we do not have the faintest idea because that just was not an issue at trial.
MR ELLICOTT: And the only issue was the inconsistency of the Victorian law, the facts were simple, and that is all that the court was concerned with, the legality or otherwise of what he was doing, and that is all this Court is concerned with and all it needs ‑ ‑ ‑
GAUDRON J: Would we not have to find out whether what he was doing was discriminating against women before we could look at the Victorian Act?
MR ELLICOTT: Well he was saying, “If I do what this Victorian Act tells me to do, will I be discriminating against women in terms of the Federal Act?”, and he sought a declaration as to whether or not that was right, and he was told that he had no obligation to follow the Victorian law, because of section 109, and really we would submit that the issue is one of looking at the two pieces of legislation with whatever assistance one would get from one’s personal knowledge, judicial notice, if you like, as to the world in which we live, but aided by the statutes itself and I would submit that the Court does not need any other facts and so far as the issue about Justice Sundberg is concerned, there is this question of certiorari, et cetera, that has been dealt with.
But I started off by putting a submission that the fiat was there which would enable the Court to deal with the question and a real issue does arise, I would submit, for the Court, as to whether or not, in the light of that fiat, it is proper to have a proceeding in which these parties would be involved – the State of Victoria not being interested apparently – in which this issue would arise as a simple straight-forward question of whether the State legislation is truly inconsistent and whether Justice Sundberg’s judgment should be followed or not. It does not affect Dr McBain, except if we were right, if the plaintiffs were right, then, of course, Dr McBain, if he is still doing it, would have to stop, and if he had done it, well, the law will look after that. There have been plenty of cases where people have thought they were doing the right thing and it has turned out, because a judgment has been upset, that they found out they were doing the wrong thing, but society is ‑ ‑ ‑
McHUGH J: But it is not of much comfort to somebody to be told, “Well, you have committed offences but we will leave it up to the discretion of the prosecuting authorities as to whether or not they will prosecute you”. That is not a very ‑ ‑ ‑
MR ELLICOTT: If this Court says something, this Court’s word is a fairly strong word – it says that a person should not be prosecuted and that would be something the Court could say. But that is all, I am sorry, your Honours ‑ ‑ ‑
GLEESON CJ: We will adjourn until 10.15 tomorrow.
MR MAXWELL: …..I am speaking on behalf of my learned friend, Mr Walker, as well. We seek some guidance from the Court in relation to the timing of tomorrow and I want to mention one other matter. Your Honours will know from the timetable that was handed up that it was anticipated that the submissions on behalf of the Women’s Electoral Lobby would begin at 2.45 and go for an hour and then my learned friend, Mr Walker, for the Human Rights Commission for the same length of time.
Each of us remains of the view that we need at least that amount of time. We are conscious that the Court requested this timetable because of the desire of the Court to finish by lunchtime tomorrow.
GLEESON CJ: Yes. We will take half an hour off the time that was allotted to the Attorney‑General of the Commonwealth.
MR MAXWELL: If your Honour please. If I might just mention one other matter in order to perhaps save some time tomorrow. There is an argument which my client will be advancing which is not in the outline which does build on the matter that has been under discussion this afternoon. It concerns section 32 and the interpretation of it and it will be submitted that the language of section 32 is to be contrasted with the language of the surrounding sections which speak in terms of it not being unlawful to do something in certain circumstances, whereas section 32 talks about “services” of a type ‑ ‑ ‑
GLEESON CJ: Why are you telling us this now?
MR MAXWELL: Only, your Honour, because there is a line of authority in the Federal Court relating to a comparable statutory phrase, “goods of a kind”, which we would invite the Court to have regard to. It occurred to me that if I informed the Court of that this afternoon, then copies could be provided to the Court and your Honours would understand what it was in relation to, since it appears nowhere in our outline.
GLEESON CJ: Thank you. Very well, you can do that.
MR MAXWELL: If your Honour please. We will provide those copies. It is the case of Diethelm Manufacturing in the Full Federal Court.
GLEESON CJ: All right. You make that available to the associates.
MR MAXWELL: If your Honour please.
GLEESON CJ: We will adjourn until 10.15 tomorrow morning.
AT 4.36 PM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY, 5 SEPTEMBER 2001
Key Legal Topics
Areas of Law
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Administrative Law
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Constitutional Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Jurisdiction
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Standing
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Procedural Fairness
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Natural Justice
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Statutory Construction
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