Mellifont v Attorney-General (Q)

[1991] HCA 53

HIGH COURT OF AUSTRALIA

Mason C.J., Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ.

MELLIFONT v. ATTORNEY-GENERAL (Q.)

(1991) 173 CLR 289

12 December 1991

High Court—Criminal Law (Q)

High Court—Appellate jurisdiction—Appeal from judgment, decree or order—Reference by Attorney-General to Court of Criminal Appeal of point of law that arose at trial at which accused acquitted or discharged—Whether appeal to High Court from determination of point of law—The Constitution (63 and 64 Vict. c. 12), s. 73—The Criminal Code (Q.), s. 669A(2), (4), (5). Criminal Law (Q.)—Perjury—False testimony touching matter material to question in proceeding—Materiality—Whether relates to false statement or matter—The Criminal Code (Q.), s. 123.

Decisions

MASON C.J., DEANE, DAWSON, GAUDRON AND McHUGH JJ. This is an application for special leave to appeal from a decision of the Court of Criminal Appeal of Queensland. At the outset, there is the question whether this Court would have jurisdiction to entertain any appeal in the event that special leave were granted. It is necessary to examine the history of the proceedings in some detail in order to appreciate the circumstances in which the question of jurisdiction arises.
History of the proceedings

2. On 26 May 1987, the "Fitzgerald Inquiry" ("the Inquiry"), as it popularly became known, was established by an Order in Council pursuant to the Commissions of Inquiry Act 1950 (Q.) "to make full and careful inquiry with respect to" certain matters. Paragraphs numbered 1, 2 and 3 of the Order in Council defined or described those matters. Paragraph 1 was expressed in the form of a question and it commenced with the words "Whether during the period 1st June, 1982 to 26th May, 1987" and went on to ask whether certain named persons or any of them and, if so, which of them or any person on behalf of any of them was or were directly or indirectly concerned with or involved in the use, keeping, management or control of premises in Queensland for any of certain enumerated purposes, including "(u)nlawful gambling". The paragraph also included police involvement in those activities and the giving or the offer of inducements by the named persons to police officers as elements in the terms of reference. The Order in Council was published on 26 May 1987 in the Queensland Government Gazette ("the Gazette").

3. That Order in Council was superseded by an Order published in the Gazette of 24 June 1987. This Order omitted "all the provisions" of the Order in Council of 26 May 1987 "relating to the subject matter of the inquiry" and substituted new provisions in their place. The new provisions, so far as they are material to the present case, related to par.1 and the definition of the term "member of the police force". For present purposes, the critical alteration effected by the second Order in Council was that the opening words of par.1 were altered to "Whether during the period since 1 January 1977", no terminating date being specified. The substance of the paragraph was also amended in various respects but, in particular, by the introduction of a new sub-par.(aa) in these terms:

"Any other person or persons, and if so who, was or were (otherwise than as a customer or client) directly or indirectly concerned with or involved in the use, keeping, management or control of premises or any other, and if so what, activities, in any of the major population centres on or near the east coast of Queensland for any of the following purposes or purposes connected therewith: (i) Prostitution; (ii) Unlawful gambling; or (iii) The sale or disposal by any other means of illegal drugs in connection with prostitution or illegal gambling."

4. On 6 June 1988, the applicant was called to give evidence in the Inquiry. He was asked the question: "Are there any accounts which you have operated in the last 10 years under names other than your own, apart from the 'T. Watson' account?" He answered this question in the negative. As a result of this answer, the applicant was charged with perjury under s.123 of The Criminal Code (Q.) ("the Code"). The prosecution alleged that the applicant operated a bank account in the name of "Henderson", opened by a man named William Greaves on 14 August 1987, for a number of months before the account became dormant. It was further alleged that the applicant operated on the account in connection with unlawful bookmaking activities.

5. Section 123 of the Code relevantly provides:

"Any person who in any judicial proceeding ... knowingly gives false testimony touching any matter which is material to any question then depending in that proceeding ... is guilty of a crime, which is called perjury."

The applicant's trial was set down for hearing in the District Court before Morley D.C.J. and a jury on 31 May 1989. The applicant pleaded not guilty. The trial was adjourned on 30 June 1989 in order to allow the prosecutor to seek an order nisi for a writ of prohibition restraining the trial judge from instructing the jury to return a verdict of not guilty. The Master who heard the application refused to grant an order nisi. On appeal, the Full Court of the Supreme Court ordered the entry of all necessary adjournments and that the applicant be brought back for trial.

6. A second indictment was presented against the applicant on 8 March 1990 on the same charge of perjury and his trial proceeded. At the close of evidence, both the prosecutor and the applicant's counsel addressed the trial judge on the question of materiality under s.123. On 14 March 1990, his Honour gave a ruling on that question. He concluded that the "test for materiality is whether the false testimony given, not the true testimony if given, would have been able to influence any determination made" and expressed the view, in the context of the case against the applicant, that "(o)f such a materiality I am not persuaded beyond reasonable doubt."

7. The reason why his Honour doubted the capacity of the applicant's false testimony to influence any determination of the Inquiry turned in part upon his construction of the second Order in Council, in particular the time period governing par.1 of the terms of reference. Although the second Order in Council did not nominate a specific date as the end point of the Inquiry, his Honour rejected the argument that the Order in Council left the temporal limits of the Inquiry open so that the period under investigation would be from 1 January 1977 until such time as the completion of the Inquiry. His Honour concluded that the Commissioner was to confine his inquiry into the subject-matter described in par.1 to the period between 1 January 1977 and 24 June 1987, the date of publication of the second Order in Council. The applicant's relevant testimony related to the opening and operating of a bank account in a period subsequent to 24 June 1987. Because the events to which the false testimony related postdated the Inquiry's timeframe, Morley D.C.J. considered that the testimony was not material to any question then depending in the proceeding, that is, the Inquiry. At the conclusion of his ruling on materiality under s.123, his Honour expressed the "hope that some thought will be given to invoking s.669A of the Criminal Code in relation to the ruling which I have made".

8. Before Morley D.C.J. had the opportunity of directing the jury to return a verdict of not guilty in consequence of his ruling on materiality, the prosecutor, against the objections of counsel for the applicant, entered a nolle prosequi and the applicant was discharged.
Attorney-General's reference

9. Section 669A of the Code relevantly provides:

"(2) The Attorney-General may refer any point of law that has arisen at the trial upon indictment of a person in relation to any charge contained therein to the Court for its consideration and opinion thereon if - (a) the person has been acquitted of the charge; or

(b) the person has been discharged in respect of that charge after counsel for the Crown, as a result of a determination of the court of trial on that point of law, has duly informed the court that the Crown will not further proceed upon the indictment in relation to that charge.

(3) Notice of the reference shall be given to the person acquitted or, as the case may be, discharged.

(4) Upon the reference the Court shall hear argument - (a) by the Attorney-General or by counsel on his behalf; and

(b) if he so desires, by the person acquitted or, as the case may be, discharged or by counsel on his behalf,

and thereupon shall consider the point referred and furnish to the Attorney-General its opinion thereon.

(5) Where the reference relates to a trial in which the person charged has been acquitted, the reference shall not affect the trial of nor the acquittal of the person."

10. On 26 March 1990, the Attorney-General referred to the Court of Criminal Appeal under s.669A(2)(b) the following points of law:

"(a) Was the learned trial judge correct in ruling that the true construction of the Order in Council dated 24th June, 1987 and, in particular, of each of paragraphs 1(aa) and 3 of that Order in Council was such as to limit the Commission of Inquiry to enquiring and reporting in respect of conduct constituting unlawful gambling done between and including 1st January, 1977 and 24th June, 1987?

(b) Even if he correctly interpreted paragraph 3 of the Order in Council as limiting the Commission of Inquiry to enquiring and reporting in respect of conduct constituting unlawful gambling done between and including 1st January, 1977 and 24th June, 1987, was the learned trial judge right in holding that it was not within the Commissioner's authority under paragraph 3 to inquire into the circumstances in which Mellifont caused the Henderson account to be opened and into the use Mellifont made of that account and that, in consequence, the opening and use of the Henderson account was not a matter material to the questions raised by paragraph 3 of the Order in Council for the Commission's inquiry and report?

(c) Was the learned trial judge correct in deciding that, on a charge of perjury under Section 123 of the Criminal Code, the test for materiality is whether the false testimony given, not the true testimony if given, would have been able to influence any determination made?

(d) Even if the learned trial judge was right in his interpretation of paragraphs 1(aa) and 3 of the Order in Council, was not the false testimony in question capable of amounting to perjury contrary to Section 123 of the Criminal Code?"

On the day following the making of the reference, the Special Prosecutor informed the applicant that another indictment would be presented against him on the same charge of perjury under s.123 of the Code in the event of a "successful" reference to the Full Court.

11. The Court of Criminal Appeal answered the questions referred by the Attorney-General as follows:

"Answer (A) 'The learned trial judge was not correct in ruling that the true construction of the Order in Council dated 24 June, 1987 was such as to limit the Commission of (I)nquiry to enquiring and reporting in respect of conduct constituting unlawful gambling done between and including 1 January 1977 and 24 June 1987.'" "Answer (B) 'It is not necessary to answer this question in view of the answer to question (A).'" "Answer (C) 'The relevant question, in relation to materiality, was whether the false evidence pertained or related to a matter, namely the opening of bank accounts, which was capable of affecting a decision of the Commission on the subject of unlawful gambling.'" "Answer (D) 'This question does not relate to a point which arose at the trial.'"

It is evident that these answers supported the case put to Morley D.C.J. by the prosecutor both on the meaning of "material" in s.123 and on the interpretation of the Order in Council of 24 June 1987. It is from the answers given by the Court of Criminal Appeal that the applicant seeks special leave to appeal. The objection to jurisdiction

12. The Solicitor-General for Queensland argues that this Court lacks jurisdiction to hear an appeal in this case because the decision of the Court of Criminal Appeal was not a judgment, decree, order or sentence within the meaning of s.73 of the Constitution. The Solicitor-General submits that, in order to constitute a judgment, decree or order from which an appeal lies to this Court under s.73, the decision must be a judicial decision in the sense that it was made in the exercise of judicial power. So much is established by decisions of this Court. Consolidated Press Ltd. v. Australian Journalists' Association (1947) 73 CLR 549, at pp 559-560, 561, 562-565; Saffron v. The Queen (1953) 88 CLR 523, at pp 527-528; see also Jacka v. Lewis (1944) 68 CLR 455, at pp 461-462.

13. At first glance this may seem a little surprising in view of the fact that the first paragraph of s.73 confers jurisdiction on the High Court to entertain appeals from judgments, decrees and orders:

"(iii) Of the Inter-State Commission, but as to questions of law only".

In New South Wales v. The Commonwealth ("the Wheat Case") (1915) 20 CLR 54, the Court concluded that the Inter-State Commission was not a court and that it did not exercise judicial power, ibid., per Griffith C.J. at pp 63-65; Barton J. at pp 70-76; Isaacs J. at pp 83-94; Powers J. at pp 106-107; Rich J. at pp 108-110; but cf. per Gavan Duffy J. at pp 101-104. Provision for the exercise of appellate jurisdiction from decisions of the Inter-State Commission might be thought to be inconsistent with the general proposition that appeals to the High Court lie only from "judgments, decrees, orders, and sentences" made in the exercise of judicial power. Moreover, in the absence of a constitutional separation of powers, there has existed the possibility that the Supreme Courts of the States might be entrusted with a jurisdiction that did not involve the exercise of judicial power.

14. However, these considerations appear to have been put aside. Perhaps it has been thought that, because the Inter-State Commission, being created under Ch.IV of the Constitution, stands in a special, indeed unique, position vis-a-vis Ch.III courts in the context of this Court's appellate jurisdiction, any appeal from its decisions should be treated as an anomalous exception to the general principle that an appeal lies to the High Court from judgments, decrees, orders and sentences made in the exercise of judicial power and not otherwise. Subject to this, it has been assumed that the reference to judgments, decrees, orders and sentences relates to determinations made by the relevant courts in the exercise of judicial power.

15. That interpretation rests on the principle that, subject to appeals from the Commission, the High Court cannot be entrusted with functions not ancillary or incidental to the exercise of the judicial power of the Commonwealth but foreign to that exercise. See Reg. v. Kirby; Ex parte Boilermakers' Society of Australia ("the Boilermakers Case") (1956) 94 CLR 254; affd sub nom. Attorney-General of the Commonwealth of Australia v. The Queen (1957) 95 CLR 529; (1957) AC 288. Nonetheless, the considerations to which we have referred do indicate that the framers of the Constitution did not take a narrow view of the concept of judicial power and that the adoption of a narrow view might produce consequences of a kind not envisaged by them.

16. In conformity with the general principle that an appeal does not lie from a decision made otherwise than in the exercise of judicial power, it has been held that, interlocutory orders aside, an appeal will not lie under s.73 from a decision which does not finally determine the parties' rights and obligations in controversy Smith v. Mann (1932) 47 CLR 426, at pp 445-446; Minister for Works (W.A) v. Civil and Civic Pty. Ltd. (1967) 116 CLR 273, at pp 277-279, 281, 285-287, 288-292; Yule v. Junek (1978) 139 CLR 1, at p 14; Fisher v. Fisher (1986) 161 CLR 438, at p 450; Swiss Aluminium Australia Ltd. v. Federal Commissioner of Taxation (1987) 163 CLR 421, at p 425. This principle has been applied to deny the existence of an appeal under s.73 from answers given to questions in a stated case unless the answers finally determine the rights of the parties in suit Fisher v. Fisher; Swiss Aluminium Australia Ltd. v. Federal Commissioner of Taxation. The principle was also applied in Saffron v. The Queen and this has more significance for the present case. There, an application was made to this Court for special leave to appeal from a decision given by the New South Wales Court of Criminal Appeal by way of answers to certain questions reserved for its consideration under s.5A(2) of the Criminal Appeal Act 1912 (N.S.W.). The applicant had been indicted on a charge of giving false testimony at a Royal Commission under the Royal Commissions Act 1923 (N.S.W.). The trial judge rejected certain essential evidence which the Crown sought to lead and directed the jury to acquit. The jury returned a verdict of not guilty. The trial judge, on the application of the Crown, reserved certain questions as to the admissibility of the evidence for decision by the Court of Criminal Appeal pursuant to s.5A(2). That sub-section enabled the trial judge, with the consent of the Attorney-General (which was forthcoming), to reserve any question of law for the decision of that Court arising at or in connection with the trial. The sub-section empowered the Court to determine the question and provided:

"(d) The determination by the Court of Criminal Appeal of the question reserved shall not in any way affect or invalidate any verdict or decision given at the trial."

17. Among the questions reserved was one, No. 9, inquiring whether the whole or any part of the evidence given by the applicant before the Commission was rendered inadmissible by certain matters particularized in the question. The Court of Criminal Appeal decided that the evidence was not rendered inadmissible by reason of those matters. That was the decision from which the applicant sought to appeal. This Court held that the decision was not appealable under s.73 of the Constitution. Dixon C.J. (with whom Kitto and Taylor JJ. agreed) observed (1953) 88 CLR, at pp 527-528: "When a court is authorized by legislation to give an
advisory opinion, no matter what language is used, its opinion is not a judgment, decree, order or sentence from which an appeal lies. Various statutes have provided for raising questions by a case stated, in such a way as to make it difficult to know whether the result of the determination of the questions so raised is advisory or not." In the words of Dixon C.J., the decision of the Court of Criminal Appeal could not "affect the rights of the person who has been acquitted, or his liabilities" ibid., at p 528. By reason of s.5A(2)(d) the acquittal remained undisturbed so that the decision could only operate as a judicial precedent.

18. One other aspect of Saffron should be noted. Dixon C.J. stated (9) ibid., at p 527 that "(a)nother indictment appears to be pending based on evidence given by (Saffron) under the same oath before the Royal Commission." It seems that the decision of the Court of Criminal Appeal on question No.9 would resolve in favour of the Crown a question of admissibility which would arise in the pending trial and, but for that decision, might be answered by the trial judge in conformity with the answer previously given by the trial judge on the first indictment. Dixon C.J. plainly had this situation in mind when he remarked ibid., at p 528:

"I think the applicant in the present case is not affected in respect of his rights or liabilities by the determination. At most he is, like any other of the Queen's subjects, liable to have the decision cited against him as evidence of what is the state of the law."

19. In O'Toole v. Charles David Pty. Ltd. (1990) 171 CLR 232, six Justices of this Court expressed serious doubts as to the correctness of the decisions denying the existence of an appeal under s.73 from answers given to a stated case if the answers do not finally determine the rights of the parties. Nevertheless, the Court did not overrule those decisions, notably Fisher v. Fisher and Swiss Aluminium Australia Ltd. v. Federal Commissioner of Taxation, because no challenge to their correctness was made in the course of argument and the application of the earlier decisions did not preclude an exercise of the Court's jurisdiction to review the answers by virtue of the removal of the proceedings into this Court under s.40 of the Judiciary Act 1903 (Cth). It was in that context that the earlier decisions came under discussion in the judgments in O'Toole. From the perspective of the present case, what is important is that the doubts then expressed about those decisions have an impact, directly and indirectly, on the correctness of the decision in Saffron and provide a firm foundation for reconsidering the basis on which it was decided.

20. It is evident from the passages in the judgment of Dixon C.J. to which we have already referred that his Honour considered that the decision of the Court of Criminal Appeal under s.5A(2) was an advisory opinion or abstract declaration of the kind which this Court decided it could not give in its original jurisdiction in In re Judiciary and Navigation Acts (1921) 29 CLR 257. It is implicit in Dixon C.J.'s judgment that this Court's appellate jurisdiction does not extend to entertaining appeals from such opinions or declarations. See also O'Toole v. Charles David Pty. Ltd. (1990) 171 CLR at p 282. It is, therefore, to In re Judiciary and Navigation Acts that we must turn in order to ascertain whether the decision by the Court of Criminal Appeal in this case was an advisory opinion or abstract declaration of the kind that will not ground an appeal to this Court in the exercise of its appellate jurisdiction.

21. In In re Judiciary and Navigation Acts, the Governor-General, with the advice of the Executive Council and pursuant to Pt XII of the Judiciary Act, referred to the Court the questions whether and to what extent various sections and schedules of the Navigation Act were valid enactments of the Commonwealth Parliament. The Court, with the sole dissent of Higgins J., in refusing to entertain this reference, stated that the legislature (1921) 29 CLR, at pp 266-267:

"cannot authorize this Court to make a declaration of the law divorced from any attempt to administer that law. ... we can find nothing in Chapter III. of the Constitution to lend colour to the view that Parliament can confer power or jurisdiction upon the High Court to determine abstract questions of law without the right or duty of any body or person being involved."

The passage contains two critical concepts. One is the notion of an abstract question of law not involving the right or duty of any body or person; the second is the making of a declaration of law divorced or dissociated from any attempt to administer it.

22. In O'Toole (1990) 171 CLR, at pp 244-245, 258-259, 279-285, 300-302, it was explicitly recognized that answers given by the full court of a court to questions reserved for its consideration in the course of proceedings in a "matter" pending in that court do not constitute an advisory opinion or abstract declaration of the kind dealt with in In re Judiciary and Navigation Acts whether or not those answers, of themselves, determine the rights of the parties. Such answers are not given in circumstances divorced from an attempt to administer the law as stated by the answers; they are given as an integral part of the process of determining the rights and obligations of the parties which are at stake in the proceedings in which the questions are reserved. Once this is accepted, as indeed it must be, it follows inevitably that the giving of the answers is an exercise of judicial power because the seeking and the giving of the answers constitutes an important and influential, if not decisive, step in the judicial determination of the rights and liabilities in issue in the litigation. Viewed in this context, it matters not whether the giving of the answers is, as a matter of legal theory, a binding determination, that is, binding on the court at first instance and the parties, as Mason C.J. and Dawson J. thought(16), ibid., at pp 245-302, or influential, that is, binding in a practical sense or virtually so, as Deane, Gaudron and McHugh JJ. thought, ibid., at pp 279-280.

23. The consequence is that the answers fall within the description "judgments, decrees, orders" in s.73 of the Constitution. The difficulties and inconveniences which would flow from a contrary conclusion were identified in O'Toole, ibid., at p 283, and there is no occasion to repeat them here. It follows that Fisher v. Fisher and Swiss Aluminium were incorrect to the extent that they decided that no appeal lies to this Court from answers given to a special or stated case where those answers do not determine the parties' rights. In that respect they should not be followed.

24. However, this conclusion does not dispose of the objection to jurisdiction in the present case. The Attorney-General's power under the Code to refer a point of law to the Court of Criminal Appeal for its consideration arises only if the accused has been acquitted of the charge in the indictment or if the accused has been discharged in respect of that charge after counsel for the Crown, as a result of a ruling by the trial judge on that point of law, has informed the court that the Crown will not proceed further upon the indictment in respect of that charge s. 669A(2). In other words, in the case of discharge, the exercise of the power to refer and the exercise of jurisdiction by the Court pursuant to the reference both proceed on the footing that no further proceedings on the indictment in respect of the relevant charge will be taken. Consequently, the ruling on the point of law pursuant to the reference will not play any part in the subsequent determination of the charge on the indictment. Likewise, in the case of acquittal, the ruling on the reference has no impact on the acquittal s. 669A(5). In this respect, the decision on the point of law referred stands in a different position from answers given by a full court to questions reserved in a stated case in the situation previously discussed.

25. Although the indictment itself cannot serve as a vehicle for the further determination of the charge in consequence of the statement by counsel for the Crown and the subsequent filing of the nolle prosequi, the reference and the decision on the reference arise out of the proceedings on the indictment and are a statutory extension of those proceedings. The questions referred all relate to the correctness of the trial judge's ruling on materiality and his interpretation of the provisions of the Order in Council of 24 June 1987 relating to the timeframe of the Inquiry and are asked in the context of the charge laid on the indictment against the applicant. The Crown sought the reference in order to establish that the trial judge's ruling was wrong in various respects. In this situation, the decision on the reference was made with respect to a "matter" which was the subject-matter of the legal proceedings at first instance and was not divorced from the ordinary administration of the law. The decision is therefore to be distinguished from the abstract declaration sought by the Executive Government in In re Judiciary and Navigation Acts. That opinion was academic, in response to an abstract question, and hypothetical in the sense that it was unrelated to any actual controversy between parties.

26. True it is that the purpose of seeking and obtaining a review of the trial judge's ruling was to secure a correct statement of the law so that it would be applied correctly in future cases. However, in our view, in the context of the criminal law, that does not stamp the procedure for which s.669A(2) provides as something which is academic or hypothetical so as to deny that it is an exercise of judicial power. The statutory procedure, which has counterparts in other Australian jurisdictions, is a standard procedure for correcting error of law in criminal proceedings without exposing the accused to double jeopardy. It is a procedure which was designed to enable the Crown to secure a reversal of a ruling by a trial judge without infringing the common law rule that the Crown cannot appeal against a verdict of acquittal, a rule which precluded a review of a trial judge's ruling at the instance of the Crown in the case of acquittal. The fundamental point, as it seems to us, is that s.669A(2) enables the Court of Criminal Appeal to correct an error of law at the trial. It is that characteristic of the proceedings that stamps them as an exercise of judicial power and the decision as a judgment or order within the meaning of s.73. Were it otherwise, the appellate jurisdiction of this Court would not extend to a review of decisions of courts of criminal appeal and full courts under s.669A(2) and similar provisions in other jurisdictions which have as their object the giving of authoritative decisions on questions of criminal law for the better administration of justice. To repeat the words of Deane, Gaudron and McHugh JJ. in O'Toole (1990) 171 CLR, at p 283, in a context which is only slightly different, there is no "persuasive reason in law or policy why" a decision under s.669A(2) should not fall within the words "judgments, decrees, orders" in s.73.

27. It follows that, in our opinion, Saffron v. The Queen, which is not relevantly distinguishable from the present case, was wrongly decided and should not be followed. It also follows that the objection to jurisdiction must be overruled. In reaching that conclusion we should state that we do not rely on the fact that it was foreshadowed to the applicant that a fresh indictment would be presented against him in the event of a "successful" reference and that, at any subsequent trial, the decision of the Court of Criminal Appeal on the construction of the second Order in Council and the meaning of "materiality" under s.123 would have been applied. In our view the decision of the Court of Criminal Appeal would have grounded an appeal to this Court, subject to the grant of special leave, even if the Crown did not propose to issue a fresh indictment.

28. The question of this Court's jurisdiction cannot turn on whether or not the Crown decides to present a fresh indictment against the applicant.
The time limits of the Inquiry

29. The Court of Criminal Appeal disagreed with the construction placed upon the second Order in Council by Morley D.C.J. and concluded that it gave Mr Fitzgerald Q.C. an unlimited time to conduct his inquiry and make and transmit his report. Kneipp J. reached that conclusion, being of opinion that the change from a specified period commencing on a named day and ending on a later-named day in the first Order in Council to an unspecified period in the second Order in Council which did not identify a finishing date was deliberate and thus signified an intention not to limit the duration of the Inquiry. In arriving at the same conclusion, Shepherdson J. was influenced by that change, more particularly when viewed in the structure of the Orders in Council. In the first Order in Council, the specification of the period "Whether during the period 1st June, 1982 to 26th May, 1987" appeared at the beginning of the first paragraph of the terms of reference. It effectively confined the Inquiry into the activities described in that paragraph to that specific period. But that limitation did not apply to the holding of the Inquiry or to the transmission of the Inquiry's report ("the Report"). Neither the first paragraph of the first Order in Council which appointed Mr Fitzgerald to make inquiry nor the penultimate paragraph which required him "TO MAKE FULL AND FAITHFUL REPORT AND RECOMMENDATIONS" touching the subject-matter of the Inquiry fixed a terminal date for either the Inquiry or the transmission of the Report. In a context in which neither Order in Council fixed a specified time for the Inquiry and the transmission of the Report, Shepherdson J. considered that the replacement of the opening words of par.1 in the terms of reference in the first Order in Council by the words "Whether during the period since 1 January 1977" in the second Order in Council meant that the only time limitation affecting that paragraph was from 1 January 1977 to the time of making and transmitting the Report. Cooper J. agreed with both Kneipp J. and Shepherdson J. on this point.

30. The applicant contends that this construction gives no effect to the word "since" in the second Order in Council. The ordinary meaning of "since", it is submitted, is to describe a period from the nominated date until the date on which the instrument takes effect, namely, 24 June 1987. That meaning, so the argument runs, gains added force from the circumstance that par.1 of the terms of reference in both Orders in Council is expressed in the past tense, signifying that the subject of the Inquiry was activities which had taken place prior to the date of the second Order in Council.

31. Although par.1 is expressed in the past tense in both Orders in Council, as is par.2, it is significant that, as a result of the second Order in Council, par.2 alone is subject to a time limitation fixed by reference to specific dates of commencement and termination. In this context, the amendment to the opening words of par.1 is of great significance. It was obviously intended to bring par.1 into line with par.3 and authorize the Commissioner to have regard to activities of the kind mentioned up to the time of the making of his Report, just as he was required to examine the adequacy of existing legislation and procedures under par.3 where the reference to "existing" must be read as embracing legislation and procedures in force up to the making of the Report.

32. Viewed in isolation, the penultimate paragraph of the second Order in Council, which defines the expression "member of the police force", might seem to support the opposite conclusion. As defined, the expression

"includes not only a current member of the police force under and within the meaning of the Police Act 1937-1985 but also any person who was at any time during the period referred to in paragraph 1 hereof a member of the police force".

But this definition, like par.1 of the second Order in Council, incorporated an amendment, the words "at any time during the period referred to in paragraph 1 hereof a member of the police force" being substituted for the words in the first Order in Council "during the aforementioned period 1st June, 1982 to 26th May, 1987 a member of the police force". The amendment was designed to correspond with the amendment made to par.1 and in these circumstances it does not, in our view, support the applicant's argument. As Mr Jackson Q.C. for the applicant acknowledged, it is equivocal on the point now under consideration.

33. In the result, the Court of Criminal Appeal was correct in the answer which it gave to question (a) of the Attorney-General's reference under s.669A.
Test for materiality under s.123 of the Code

34. The answer given by the majority in the Court of Criminal Appeal (Cooper J. dissenting) to question (c) of the Attorney-General's reference was:

"The relevant question, in relation to materiality, was whether the false evidence pertained or related to a matter, namely the opening of bank accounts, which was capable of affecting a decision of the Commission on the subject of unlawful gambling."

Mr Jackson submits that the majority were in error and that the effect of their interpretation is to treat the words "touching any matter" in s.123 as if they were a separate part of the provision rather than as part of a composite expression "false testimony touching any matter". The consequence of the majority's interpretation is that, even if the false testimony is not itself "material to any question then depending" in the proceedings, an offence is nevertheless committed if the false testimony is relevant to a matter which is material to such a question.

35. The interpretation for which the applicant contends brings the statutory offence into line with the common law offence of perjury. Indeed, the applicant submits that there is an ambiguity in the section, namely, whether the adjectival clause commencing with the word "which" qualifies "false testimony" or "matter", and that it is legitimate to have regard to the common law in resolving that ambiguity.

36. At common law it was necessary to establish the materiality of the false statement itself as an element in the offence of perjury Reg. v. Lavey (1850) 3 Car and K 26, per Lord Campbell C.J. at p 30 (175 ER 448, at p 450); Reg. v. Goddard (1861) 2 F and F 361 (175 ER 1096); Reg. v. Davies (1974) 7 SASR 375; Traino (1987) 27 A Crim R 271. In Reg. v. Millward (1985) 1 QB 519 the Court of Appeal rejected the submission, in the context of s.1(1) of the Perjury Act 1911 (U.K.), that it was the materiality of the truth, if told, which is the question to be decided. The Court decided that it is the materiality of the false statement itself which is the element of the offence. In arriving at this conclusion, the Court applied the common law authorities on perjury ibid., at p 525.

37. In Reg. v. Davies (1974) 7 SASR 375, at p 377 Bray C.J. said:

"(W)here evidence in some previous proceedings is the subject of a charge of perjury the question whether the statement in question was material to the issues in the original proceeding must, in many cases, be a question of law. ... Material ... in this context must mean, not only relevant, but practically relevant."

In the same case, Wells J. stated ibid., at p 391:

"A decision on materiality will, generally speaking, necessitate a judgment as to whether the testimony assigned as perjury was of a fact in issue, of a fact relevant to a fact in issue, or of some fact that was fairly capable of affecting the defendant's credit or (rarely) the credit of some other witness".

His Honour's statement was referred to with approval by King C.J. and Jacobs J. in Traino (1987) 27 A Crim R, at pp 276, 278.

38. The primary difficulty with the applicant's argument is that it is not legitimate to look to the antecedent common law for the purpose of interpreting the Code unless it appears that the relevant provision in the Code is ambiguous Stuart v. The Queen (1974) 134 CLR 426, at p 437. That ambiguity must appear from the provisions of the statute; in other words, it is not permissible to resort to the antecedent common law in order to create an ambiguity. Nor, for that matter, is it permissible to resort to extrinsic materials, such as the draft Code and Sir Samuel Griffith's explanation of the draft Code, which are referred to in the dissenting judgment of Cooper J. in the Court of Criminal Appeal, in order to create such an ambiguity.

39. The words "which is material" naturally relate back to their immediate antecedent "matter". It would be an unnatural and unusual reading to relate the words back to "false testimony". Moreover, the applicant's construction of the section leaves the words "touching any matter" with little, if any, work to do. Furthermore, reading the words according to their natural construction, even if it works an extension of the common law offence of perjury, does not bring about any surprising consequences.

40. Accordingly, the Court of Criminal Appeal was correct in the answer which it gave to question (c).

41. In the result, we would grant special leave to appeal but dismiss the appeal.

BRENNAN J. Prior to O'Toole v. Charles David Pty. Ltd. (1990) 171 CLR 232, the principle that "an appeal will not lie to this Court under s.73 of the Constitution from a judicial opinion which is advisory and which leaves the legal situation of the parties unaffected and does not by itself operate to affect in some way the parties' mutual rights and obligations" per Gibbs C.J. in Fisher v. Fisher (1986) 161 CLR 438, at p 450 had been taken to be "well settled" Swiss Aluminium Australia Ltd. v. Federal Commissioner of Taxation (1987) 163 CLR 421, at p 425. A majority of the Court in O'Toole questioned the correctness of the decisions which had established and adhered to that principle. The change in constitutional principle foreshadowed in O'Toole is effected and further advanced by the reasons of the majority in this case. I shall state the reasons why I am unable to follow the path which leads the majority to the conclusions that Saffron v. The Queen (1953) 88 CLR 523 was wrongly decided and that this Court has appellate jurisdiction to entertain an appeal by special leave from an opinion of the Court of Criminal Appeal of Queensland, furnished to the Attorney-General of that State pursuant to the provisions of s.669A of The Criminal Code (Q.).

2. Had s.669A provided that a trial judge's ruling in the course of a criminal trial could be challenged by the Crown before the Court of Criminal Appeal and the appellate ruling applied on a resumption of the trial, the ruling by the Court of Criminal Appeal would be plainly a step in the trial process affecting the legal situation of the parties. But s.669A provides a different procedure: there must first be a nolle prosequi as a result of a determination of a point of law; then the person accused is discharged from any further proceedings upon that indictment. Code, s. 563. At that stage the trial is at an end. The issues for trial which arise on plea to the indictment are withdrawn; the jury is discharged from giving a verdict. Next s.669A provides for a reference of the point of law by the Attorney-General to the Court of Criminal Appeal. A notice of the reference must be given to the person who has been discharged. The Court hears argument (a) on behalf of the Attorney-General, and (b) on behalf of the person discharged "if he so desires". Thereafter the Court furnishes its opinion to the Attorney-General. There are no issues to be determined between the Attorney-General and the person who has been discharged and no requirement that the person whose trial was terminated by the nolle prosequi should be re-indicted. Indeed, although the Attorney-General is the recipient of the Court's opinion, the discretion to re-indict the person who has been discharged may be reposed in other hands. In this case, it appears, in the hands of a Special Prosecutor. The opinion may be used not only on a further trial of the person in whose trial the point of law arose but also on the trial of other persons where the same point will arise. The opinion can have the practical effect of a judicial precedent though a person on whose trial the opinion is used did not argue the point in the Court of Criminal Appeal; indeed, he may not have had any right to be heard. The opinion is, in law, no more than a judicial opinion on a point that is entirely hypothetical. That proposition is manifest when one considers that an opinion under s.669A may be sought after an acquittal on "any point of law that has arisen at the trial". Clearly enough, the opinion of the Court of Criminal Appeal against which the applicant seeks special leave to appeal "leaves the legal situation of the parties unaffected" and "does not by itself operate to affect in some way the parties' mutual rights and obligations". The purpose of the proceeding is not the determination of a point of law on which any issue of substance or procedure depends: the opinion is not furnished to a court but to a Minister of the Executive Government. Presumably the Court of Criminal Appeal is authorized to publish a copy of the opinion it furnishes, though s.669A does not expressly say so. The effect of the opinion can be stated in the terms in which Dixon C.J. described the answers of a Court of Criminal Appeal to questions reserved after a verdict of acquittal in Saffron (1953) 88 CLR, at p 528:

"It can operate only as a judicial precedent, having at best the effect which in English jurisprudence is afforded to the decisions of a court as precedents. That is an entirely different thing from binding a right or creating a liability, or precluding a person who asserts a right or denies a liability."

Under the principles settled prior to O'Toole, an opinion under s.669A would not have been classified as a judgment, decree, order or sentence from which an appeal would lie to this Court under s.73 of the Constitution. I shall trace the steps which seem to me to be established in constitutional principle and which lead me to hold that no appeal lies in the present case. The jurisdiction of the High Court.

3. This Court is not and cannot be a repository of powers which are neither part of the judicial power of the Commonwealth nor ancillary or incidental to the exercise of judicial power British Imperial Oil Co. Ltd. v. Federal Commissioner of Taxation (1925) 35 CLR 422, at p 436; Reg. v. Kirby;Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254, esp. at pp 271-272, 296; Steele v. Defence Forces Retirement Benefits Board (1955) 92 CLR 177, at pp 186-187; Love v. Attorney-General (NSW) (1990) 169 CLR 307, at p 319. Its jurisdiction, whether appellate or original, does not include any power that is not part of the judicial power of the Commonwealth except, perhaps, its jurisdiction to entertain appeals from the Inter-State Commission as to questions of law. Constitution, s. 73(iii). That jurisdiction stands apart from the appellate jurisdiction which is conferred on this Court by s.73(i) and (ii) of the Constitution and which is clearly part of the judicial power.

4. Since this Court can exercise only judicial power in hearing and determining appeals under s.73(i) and (ii), it cannot entertain an "appeal" which can be determined only by exercise of a non-judicial power. For that reason, the only "judgments, decrees, orders, and sentences" pronounced by a State Court from which an appeal lies to this Court are those in which the appeal evokes an exercise of judicial power. If a State Court be vested with a non-judicial power, no exercise of that power can found an appeal to this Court Holmes v. Angwin (1906) 4 CLR 297, at pp 308-309 (but cf. pp 307-308, 310); Federal Commissioner of Taxation v. Munro (1926) 38 CLR 153, at p 174; Webb v. Hanlon (1939) 61 CLR 313, at pp 324, 327-328, 330, 335; Jacka v. Lewis (1944) 68 CLR 455, at p 462, for this Court has no power available itself to make a non-judicial order in place of any non-judicial order which a State Court ought to have made at first instance.

5. As this Court cannot determine an appeal otherwise than by exercise of judicial power, an appeal can lie only from an order which is itself an exercise of "judicial power" as that term is used in s.71 of the Constitution. The corollary is that a valid conferring of a right of appeal to this Court bespeaks an exercise of judicial power by the court from which the appeal lies. Thus, an attempt to confer a right of appeal from a Taxation Board of Appeal (a federal body that was not constituted as a Chapter III Court) to this Court in its appellate jurisdiction was held invalid, British Imperial Oil Co. Ltd. v. Federal Commissioner of Taxation, because it was regarded as "an unmistakable and an inseparable indication that the Board of Appeal was intended by Parliament to exercise 'judicial power'" per Isaacs J. in Federal Commissioner of Taxation v. Munro (1926) 38 CLR, at p 175. On the other hand, it is permissible to expose a decision by a federal administrative body to a review by a federal court whose decision will bind the parties to that proceeding. Federal Commissioner of Taxation v. Munro, affd Shell Co. of Australia Ltd. v. Federal Commissioner of Taxation (1930) 44 CLR 530; (1931) AC 275; Minister of State for the Navy v. Rae (1945) 70 CLR 339, at pp 340-341; Farbenfabriken Bayer Aktiengesellschaft v. Bayer Pharma Pty. Ltd. (1959) 101 CLR 652, at p 658. Such a review, even if it be called an appeal, is a proceeding in the original jurisdiction. Federal Commissioner of Taxation v. Munro (1926) 38 CLR, at p 181; Minister of State for the Navy v. Rae (1945) 70 CLR, at p 341; Watson v. Federal Commissioner of Taxaation (1953) 87 CLR 353, at p 371; Federal Commissioner of Taxation v. J. Walter Thompson (Aust.) Pty. Ltd. (1944) 69 CLR 227, at p 228. The reason for attributing the character of judicial power to the review by a court of a decision by an administrative tribunal is explained by Dixon J. in Medical Board of Victoria v. Meyer (1937) 58 CLR 62, at p 92:

"We have grown familiar with provisions in laws relating to taxation which make an administrative determination conclusive of liability subject to judicial review by some statutory proceeding. The right to a grant of letters patent or registration of a trade mark or design is dealt with in a similar way. In such cases the right derived by or liability imposed upon the subject under statute is ascertained and enforced or declared as an exercise of original jurisdiction according to a special mode of procedure."

6. This Court exercises only judicial power in both the appellate and the original jurisdictions. In the original jurisdiction, judicial power is exercised in hearing and determining "matters" of the several classes mentioned in ss.75 and 76 of the Constitution. Federal courts can be vested with jurisdiction only in those "matters" and an appeal to this Court from a federal court is thus an appeal from an order made in exercise of judicial power in hearing and determining a "matter". However, no distinction in terms of judicial power was intended between the orders of a federal court from which an appeal might lie to this Court and the orders of a State Court from which an appeal might lie to this Court. The protection of the jurisdiction of this Court in appeals from State Supreme Courts afforded by par.2 of s.73 relates to any appeal in any "matter" in which an appeal lay to the Queen in Council. Thus in Australian Consolidated Press Ltd. v. Uren (1967) 117 CLR 221, the Privy Council admitted an appeal against so much of a decision of this Court as determined that, on a retrial of an action for damages for defamation, it was competent to award punitive damages. An order for retrial had been made in the proceedings, and the proceedings subject to that order were clearly a "matter". The appeal to the Privy Council resulted in the final determination of a question of law arising in that "matter": the appeal related "to the decision of the High Court as to the law to be applied in an actual case which is shortly to be retried" ibid., at p 229. Section 73 gives no protection - for none is possible - in respect of appeals in proceedings which are not "matters".

7. Appeals therefore lie to this Court under s.73(i) and (ii) from judgments, decrees, orders, and sentences in "matters", as that term is understood in Ch.III of the Constitution. The scope of the original jurisdiction in "matters" was discussed in terms relevant to this case in In re Judiciary and Navigation Acts (1921) 29 CLR 257 to which reference will presently be made. But first it is desirable to consider the nature of judicial power generally. Thus we will ascertain whether the opinion of the Court of Criminal Appeal was furnished in exercise of what the Constitution recognizes as judicial power and whether an "appeal" from that opinion evokes an exercise of judicial power by this Court.
The nature of judicial power.

8. The oft-cited definition of "judicial power" in s.71 of the Constitution proffered by Griffith C.J. in Huddart, Parker and Co. Proprietary Ltd. v. Moorehead (1909) 8 CLR 330, at p 357; see also per Isaacs J. at p 383 was -

"the power which every sovereign authority must of necessity have to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property".

And in Labour Relations Board of Saskatchewan v. John East Iron Works, Ld. (1949) AC 134, at p 149 Lord Simonds, speaking for the Privy Council, said:

" It is a truism that the conception of the judicial function is inseparably bound up with the idea of a suit between parties, whether between Crown and subject or between subject and subject, and that it is the duty of the court to decide the issue between those parties, with whom alone it rests to initiate or defend or compromise the proceedings."

The capacity to decide a controversy between parties is characteristic of the general mass of judicial power, but there are some particular categories of judicial power where there are no controversies between parties to be decided. Kitto J. pointed out in Reg. v. Davison (1954) 90 CLR 353, at p 380 that -

"it would not be possible to maintain that, except where there is a controversy to be decided, there can never be a manifestation of the power to which these broad features belong".

In the same case, Dixon C.J. and McTiernan J. ibid., at p 368 said:

"In the administration of assets or of trusts the Court of Chancery made many orders involving no lis inter partes, no adjudication of rights and sometimes self-executing. Orders relating to the maintenance and guardianship of infants, the exercise of a power of sale by way of family arrangement and the consent to the marriage of a ward of court are all conceived as forming part of the exercise of judicial power as understood in the tradition of English law. Recently courts have been called upon to administer enemy property. In England declarations of legitimacy may be made. To wind up companies may involve many orders that have none of the elements upon which these definitions insist. Yet all these things have long fallen to the courts of justice. To grant probate of a will or letters of administration is a judicial function and could not be excluded from the judicial power of a country governed by English law."

These particular categories of judicial power are acknowledged as such either because they have traditionally been vested in courts or because they are analogous to powers that have traditionally been vested in courts. These are diverse categories of judicial power but in every case their exercise affects the rights (including powers, privileges and immunities), status or obligations (including duties, disabilities and liabilities) of persons, whether natural or artificial, who are subject to the jurisdiction of the courts.

9. There is an additional class of power, incidental to the categories of strictly judicial power, which is classified as judicial though it exhibits qualities which are ordinarily characteristic of administrative power. The Court referred to this class of judicial power in Queen Victoria Memorial Hospital v. Thornton (1953) 87 CLR 144, at p 151:

"Many functions perhaps may be committed to a court which are not themselves exclusively judicial, that is to say which considered independently might belong to an administrator. But that is because they are not independent functions but form incidents in the exercise of strictly judicial powers."

10. Leaving aside these incidental powers with an administrative ingredient, an essential characteristic of judicial power is that its exercise affects the legal rights, status or obligations of persons who are subject to the jurisdiction of the court or body in which the power is reposed. That characteristic is not sufficient by itself to stamp a power as judicial but it is an indispensable characteristic of all powers which are judicial. It is a characteristic which the power vested in the Court of Criminal Appeal under s.669A to furnish an opinion does not possess. Nor does an "appeal" against the opinion evoke an exercise of judicial power. No person's rights, status or obligations are, or are capable of being, affected by the furnishing of the opinion or by any order that this Court might make on "appeal" against the opinion. The concept of "matters".

11. The primary meaning of "matters" in Ch.III of the Constitution is justiciable controversies Fencott v. Muller (1983) 152 CLR 570, though the term doubtless includes subjects of judicial control of the kind to which Dixon C.J. and McTiernan J. referred in Davison (1954) 90 CLR, at p 368. In In re Judiciary and Navigation Acts, a law purporting to confer on this Court jurisdiction to hear and determine questions of law referred by the Governor-General as to the validity of enactments was itself held invalid. The argument in support of the law was that "matter" meant no more than "legal proceeding". The argument was rejected (1921) 29 CLR, at pp 265-266:

"We do not accept this contention; we do not think that the word 'matter' in sec. 76 means a legal proceeding, but rather the subject matter for determination in a legal proceeding. In our opinion there can be no matter within the meaning of the section unless there is some immediate right, duty or liability to be established by the determination of the Court. If the matter exists, the Legislature may no doubt prescribe the means by which the determination of the Court is to be obtained, and for that purpose may, we think, adopt any existing method of legal procedure or invent a new one. But it cannot authorize this Court to make a declaration of the law divorced from any attempt to administer that law. The word 'matter' is used several times in Chapter III. of the Constitution (secs. 73, 74, 75, 76, 77), and always, we think, with the same meaning." (Emphasis added.)

And further, ibid., at pp 266-267:

"The adjudication of the Court may be sought in proceedings inter partes or ex parte, or, if Courts had the requisite jurisdiction, even in those administrative proceedings with reference to the custody, residence and management of the affairs of infants or lunatics. But we can find nothing in Chapter III. of the Constitution to lend colour to the view that Parliament can confer power or jurisdiction upon the High Court to determine abstract questions of law without the right or duty of any body or person being involved."

As I read these passages, they deny that a court, exercising jurisdiction in a matter, is authorized to make declarations of the law "unless there is some immediate right, duty or liability to be established by the determination of the Court". It is only in applying the law in the determination of a "matter" that the law is judicially administered. In Fencott v. Muller, a majority of this Court (Mason, Murphy, Brennan and Deane JJ.) used the term "judicial administration of the federal law" to mean the correct application of federal law in resolving a particular claim. Their Honours went on to say that "the primary purpose of exercising judicial power is not the maintenance of legal principle: that is incidental to the determination of the dispute in hand" (1983) 152 CLR at p 609. That primary purpose is absent in the present case. The course of authority.

12. The principle that no appeal lies to this Court under s.73 of the Constitution from a judicial opinion which leaves unaffected the legal situation of persons subject to the court's jurisdiction has been applied in a case where a Court of Criminal Appeal delivered an opinion relating to a point of criminal law after an accused had been acquitted (Saffron v. The Queen) and in a case where an opinion delivered by the Full Court of the Family Court was not decisive of the rights of the parties: Fisher v. Fisher. In both cases, the reasons for judgment on the application of s.73 were unanimous. In Minister for Works (W.A) v. Civil and Civic Pty. Ltd. (1967) 116 CLR 273, at p 277 Barwick C.J. said:
" It is of the essence of a judgment within the meaning
of the Constitution that it is binding upon parties and definitive of legal rights." There are cases where the focus of attention has been on the question whether a judicial opinion is determinative or advisory Smith v. Mann (1932) 47 CLR 426; The President of India v. The Moor LIne Ltd. (No. 2) (1958) 99 CLR 212 or whether, though advisory in form, it is binding on parties to pending litigation Minister for Works (W.A) v. Civil and Civic Pty. Ltd. In O'Toole, the majority were concerned to show that an advisory opinion could affect the legal situation to parties to litigation (1990) 171 CLR, at pp 244, 247, 280, 301. But it has never been held that an appeal lies from a judicial opinion on a point of law which is not given by a court in the context of proceedings actually in train before a court, tribunal or arbitrator and which is therefore incapable of affecting the legal situation of any person. In O'Toole, that proposition was accepted, ibid., at pp 244, 259, 281, 301, although Deane, Gaudron and McHugh JJ. noted that the principle "which effectively preclude(s) a direct appeal from the answers given by a full court in a case where those answers are not finally determinative of the rights of the parties" applies "(w)hile the decisions of this Court (to that effect) stand", ibid., at pp 280-281.

13. The principle which was laid down in In re Judiciary and Navigation Acts is, in my view, a constitutional imperative which cannot, and should not, be whittled away. The effective exercise of judicial power is undermined if it be available in situations where its exercise does not affect the legal situation of persons subject to the jurisdiction of the court. In such situations, the necessity - indeed, the possibility - of hearing from a person whose legal interests will be affected by the exercise of the power is dispensed with. The focus of analysis on the legal point is likely to be blurred or, to adapt the phrase of Brennan J. in Baker v. Carr (1962) 369 US 186, at p 204, the "concrete adverseness which sharpens the presentation of issues" will be lost. In the United States, the giving of opinions which do not affect a concrete legal situation is precluded by the Supreme Court's interpretation of "Cases" and "Controversies" in Art.III of the Constitution. A rule was expressed in that context which is equally applicable to the scope of the judicial power under our Constitution:

"Such opinions (abstracted from immediate considerations dispositive of a live issue), such advance expressions of legal judgment upon issues which remain unfocused because they are not pressed before the Court with that clear concreteness provided when a question emerges precisely framed and necessary for decision from a clash of adversary argument exploring every aspect of a multi-faced situation embracing conflicting and demanding interests, we have consistently refused to give." United States v. Fruehauf (1961) 365 US 146, at p 157.

14. There is a more fundamental reason for insisting that judicial power be exercised only where the legal situation of persons subject to the jurisdiction is affected. If it be held that the raising of any point in a trial is a sufficient ground for referring that point to a court for an opinion to be furnished in exercise of the judicial power after the trial is complete, the Executive Government possesses the means of invoking the judicial power unopposed by a contradictor with a legal interest to be defended or asserted. That proposition, which cannot logically be restricted to the obtaining of an opinion on points of criminal law, enhances the influence of the Executive Government on the development of the law and thus diminishes the characteristic capacity of the courts to give an unprejudiced ruling to determine the rights and liabilities of subjects in controversy with Government. To compromise the courts in the discharge of that role is to diminish the guarantee of a free society. In my opinion, so serious a tampering with a constitutional safeguard is not to be justified by pragmatic considerations favouring the declaration of points of law that have been misunderstood.

15. That is not to say that an opinion by a Full Court to guide a trial judge in determining a question in contest in pending litigation is necessarily outside the scope of judicial power or is not part of the "matter" between the parties, see O'Toole (1990) 171 CLR, at pp 265-266, but that is not the present case. There is no pending litigation. Although a new trial is threatened and the Attorney-General is seeking a curial ruling in advance of that trial, the power to furnish an opinion under s.669A is wholly unconnected with any future proceeding. Nor is it relevantly connected with the aborted trial. The determination of the point of law which resulted in the nolle prosequi was, as s.669A(2) provides, a condition of the power of the Attorney-General to refer the point of law to the Court of Criminal Appeal but the trial judge's ruling and the nolle prosequi are unaffected by the furnishing of the opinion to the Attorney-General. The precedential value of a trial judge's determination of a point of law can be replaced by the precedential value of a contrary opinion of the Court of Criminal Appeal furnished under s.669A but such an opinion does nothing to rectify the effect of any error of law which occurred at the trial. The opinion does not reinstate the trial to be continued in accordance with the opinion. Unlike an appeal or other form of judicial review, the furnishing of an opinion does not affect the legal situation of any person. Lacking the capacity to affect the legal situation of any person, I would see the function of the Court of Criminal Appeal under s.669A as entirely divorced from the judicial administration of the law as that term is used in In re Judiciary and Navigation Acts. It follows that I would hold that no appeal lies from the opinion of the Court of Criminal Appeal and that the application for special leave to appeal should be dismissed as incompetent.

16. This is a minority view. As the majority would grant special leave to appeal and hold that an appeal lies, I should state my opinion on the questions ((a) and (c)) referred to and answered by the Court of Criminal Appeal. For the reasons stated by their Honours in the majority, I agree that the Court of Criminal Appeal gave the correct answers to questions (a) and (c). Had I been of the opinion that an appeal lay to this Court, I would have joined in the order granting special leave to appeal and dismissing the appeal.

TOOHEY J. The circumstances giving rise to this application for special leave to appeal and the relevant provisions of The Criminal Code (Q.) ("the Code") appear in the judgment of Mason C.J., Deane, Dawson, Gaudron and McHugh JJ.

2. I agree with their Honours that there should be special leave to appeal but that the appeal should be dismissed. So far as the substantive matters are concerned - the time limits of the Fitzgerald Inquiry and the test for materiality under s.123 of the Code - I have nothing to add to what their Honours have said. And, while I agree with their conclusion that the objection to jurisdiction should be overruled, I wish to say something on this aspect.

3. The issue is whether the decision of the Court of Criminal Appeal of Queensland, made on a reference by the Attorney-General pursuant to s.669A(2)(b) of the Code, falls within the language of s.73 of the Constitution which confers on the High Court jurisdiction "to hear and determine appeals from all judgments, decrees, orders, and sentences". As to the origin of these words, see The King v. Snow (1915) 20 CLR 315, at p 322.

4. On a number of occasions the Court has said that an appeal under s.73 is not competent unless the decision sought to be appealed determines the rights and obligations of the parties to the litigation. Smith v. Mann (1932) 47 CLR 426, at pp 445, 446, 453-454; Minister for Works (W.A) v. Civil and Civic Pty. Ltd. (1967) 116 CLR 273, at pp 277-279, 281-282, 285-286, 288, 292; Fisher v. Fisher (1986) 161 CLR 438, at p 450; Swiss Aluminium Australia Ltd. v. Federal Commissioner of Taxation (1987) 163 CLR 421, at p 425; and see Yule v. Junek (1978) 139 CLR 1, at p 14. In amplification of that principle, the Court has held that an appeal from answers given on a special case or case stated is not competent unless the answers finally determine the rights of the parties concerned. Fisher; Swiss Aluminium.

5. The proposed appeal in the present case is not from answers given on a special case or case stated. It is from answers given by the Court of Criminal Appeal to questions posed by the Attorney-General's reference under s.669A(2)(b) of the Code. Those answers were given after evidence in the applicant's trial had concluded and after the Crown had entered a nolle prosequi, following rulings by the trial judge relating to the time limits of the Inquiry and the test for materiality. The Crown later told the applicant, in effect, that if the answers given by the Court of Criminal Appeal were as sought by the Crown, another indictment would be presented against him on the charge of perjury.

6. In O'Toole v. Charles David Pty. Ltd. (1990) 171 CLR 232 members of the Court expressed reservations as to the correctness of Fisher and Swiss Aluminium. But the Court was not asked to overrule those decisions and a decision as to their correctness was not necessary to dispose of the proceedings which had been removed into the Court. In the present case objection has been taken to the jurisdiction of the Court. It is necessary, therefore, to review the correctness of some earlier decisions and, further, to consider whether in any event they should stand after this time.

7. A convenient starting point is In re Judiciary and Navigation Acts (1921) 29 CLR 257 in which the Court declared invalid Pt XII of the Judiciary Act 1903 (Cth) which purported to give to the High Court jurisdiction to hear and determine any question referred to it by the Governor-General as to the validity of any enactment of the Parliament. The Court accepted that the function of making an authoritative decision on the validity of legislation was judicial but held that it was not part of the judicial power of the Commonwealth, there being no "matter" in terms of the relevant sections of the Constitution. Knox C.J., Gavan Duffy, Powers, Rich and Starke JJ. referred to ss.75, 76 and 77 of the Constitution and concluded, ibid., at p 265:
"This express statement of the matters in respect of which
and the Courts by which the judicial power of the Commonwealth may be exercised is, we think, clearly intended as a delimitation of the whole of the original jurisdiction which may be exercised under the judicial power of the Commonwealth, and as a necessary exclusion of any other exercise of original jurisdiction."

8. This passage, which lies at the heart of the decision in In re Judiciary and Navigation Acts, does not directly touch the present problem which goes to the appellate jurisdiction of the High Court. Indeed, their Honours said ibid., at p 264:
"Secs. 73 and 74 deal with the appellate power of the High
Court, and we need make no further reference to those sections". But, underlying the decision is a rejection of the view that "Parliament can confer power or jurisdiction upon the High Court to determine abstract questions of law without the right or duty of any body or person being involved" ibid., at p 267 and, at least so far as original jurisdiction is concerned, the proposition that "the use of the judicial power (of the Commonwealth) was approved only when it was used for the purpose of effecting or assisting in effecting a settlement of existing claims of right under the law of the Commonwealth" ibid., at p 267.

9. The situation in the present case is quite different. The appellate jurisdiction of the Court is at issue. And the Court is not asked to determine abstract questions of law in which no body or person is involved; the questions the subject of the proposed appeal are concrete and specific, asked in relation to matters which arose on the trial of the applicant. Furthermore, those questions were asked with a view to resolving an issue raised by the Crown as to the correctness of the law to be applied to the charges made against the applicant, even though a nolle prosequi had been entered in respect of those charges. It is important to appreciate that what is involved in the present case is different in character from what was held to be impermissible by the Court in In re Judiciary and Navigation Acts. In that case, although the Court held that the declaration asked of it, "not merely an opinion but an authoritative declaration of the law", ibid., at p 264, was "clearly a judicial function", ibid., at p 264, it was outside the scope of the original jurisdiction conferred on the Court by the Constitution, and for that reason not part of the judicial power of the Commonwealth.

10. More directly in the path of the applicant stands Saffron v. The Queen (1953) 88 CLR 523. The applicant in that case had been acquitted of a charge of giving false testimony at a Royal Commission. At the request of the Crown, the trial judge reserved for decision by the Court of Criminal Appeal of New South Wales questions as to the admissibility of evidence. He did so in accordance with a statutory provision that empowered him to reserve for the decision of the Court of Criminal Appeal "any question of law arising at or in connection with the trial". In the opinion of Dixon C.J., ibid., at p 528, with whom Kitto and Taylor JJ. agreed, the decision of the Court of Criminal Appeal:
"cannot affect the rights of the person who has been
acquitted, or his liabilities. It can operate only as a judicial precedent ... That is an entirely different thing from binding a right or creating a liability, or precluding a person who asserts a right or denies a liability."

11. Although Dixon C.J. did not mention In re Judiciary and Navigation Acts, the decision was cited in the argument of counsel and it seems that the Chief Justice was of the view that the Court was being asked to do no more than express an advisory opinion. Indeed, he said, ibid., at pp 527-528:
"When a court is authorized by legislation to give an
advisory opinion, no matter what language is used, its opinion is not a judgment, decree, order or sentence from which an appeal lies." But, it may not always be enough to ask whether the High Court is being asked to hear an appeal from an "advisory opinion" for that is an expression which itself needs definition. In In re Judiciary and Navigation Acts the Court did not regard itself as being asked to express an advisory opinion. That is clear from the passages quoted earlier in this judgment.

12. In the context of the present application, reference to "advisory opinion" serves only to cloud the issue. The expression has been taken to mean an opinion "rendered by a court at the request of the government or an interested party indicating how the court would rule on a matter should adversary litigation develop". West's Law and Commercial Dictionary (1985) p 51. There are no parties and no issues as ordinarily understood. The question here is whether, in terms of s.73, there has been a judgment, decree, order or sentence from which it is sought to appeal. "The four words taken together are clearly wide enough to include every judicial decision, final or interlocutory, in every jurisdiction, civil or criminal." Quick and Garran, The Annotated Constitution of the Australian Commonwealth (1901) p 741. The cumulative effect of the words used indicates that no narrow operation was intended. For present purposes it is enough to speak of a judgment.

13. This is much the way the argument was put by Sir Garfield Barwick on behalf of the applicant in Saffron. He said (1953) 88 CLR, at p 526:
"The question to be decided is whether there is here a
judgment; not whether there is here a judgment which is formative or determinative of some right of the applicant". To put the matter that way places the focus of inquiry on what is meant by "judgments" in s.73 of the Constitution. A note of relevant decisions in this regard appears in Ah Toy v. Registrar of Companies (1985) 10 FCR 280, at pp 285-286. And, in my respectful view, that is what the language of s.73 demands. The existence of a "matter" is the touchstone of the original jurisdiction of the High Court, rather than of its appellate jurisdiction.

14. In Driclad Pty. Ltd. v. Federal Commissioner of Taxation (1968) 121 CLR 45, at p 64 Barwick C.J. and Kitto J. said of s.73 of the Constitution:
"The word 'judgments' in this connexion refers only to
operative judicial acts, and is not used, as it often is in other contexts, as a convenient abbreviation for reasons for judgment." The emphasis there is on "operative judicial acts". The matter had been put in somewhat different terms by Barwick C.J. in Minister for Works v. Civil and Civic when he said (1967) 116 CLR, at p 277:

" It is of the essence of a judgment within the meaning of the Constitution that it is binding upon parties and definitive of legal rights."

In that case the Court held as incompetent an appeal from a decision of the Full Court of the Supreme Court of Western Australia given on appeal from the answer to a question stated for the opinion of a judge in the course of a building arbitration. It should be noted that the question asked of the judge related to the mode of measuring distance for the purpose of calculating the mileage for cartage. In the view of the majority, the answer given by the Full Court was, in the circumstances of the relevant legislation, no more than the giving of its opinion for the opinion given by the primary judge and was not within the terms of s.73 of the Constitution. It is of interest to observe that the headnote to the report speaks of "advisory opinion". Both "advisory opinion" and "opinion" appear in the judgments. It is apparent from a reading of the judgments that "advisory opinion" is not there used in the sense discussed earlier in this judgment but rather to identify something which is not binding on the parties.

15. In Smith v. Mann the Court held that a decision of the Supreme Court of New South Wales, given after the making of an award by the Workers' Compensation Commission based on a certificate from a medical board, was not an advisory or consultative opinion but was a final determination of the rights of the parties. An appeal to the High Court was therefore competent.

16. It is necessary to mention two other decisions of this Court. In Fisher it was held that answers given by the Full Court of the Family Court on a special case stated by a judge of the Family Court, not of themselves decisive of the rights of the parties, did not constitute a judgment for the purposes of s.73 of the Constitution so as to ground an appeal to the High Court. In that case the special case asked only whether certain provisions of the Family Law Act 1975 (Cth) were valid. In Swiss Aluminium the Court held incompetent an appeal from a decision of the Full Court of the Federal Court which determined, on a case stated, that a document was an exempt document under the Freedom of Information Act 1982 (Cth). In the view of the Court, the decision of the Full Court did not "finally determine the appellant's right of access to the document" (1987) 163 CLR, at p 427.

17. As is apparent, some of the earlier judgments have understood the question of appealability to turn on the distinction between advisory opinion and decision finally determinative of the rights of the parties. But to pose such a distinction is to proffer a dichotomy which is not complete. A court may give an answer to a question which does not finally determine the rights of the parties but which is not merely advisory. An answer which binds the parties and which operates on the litigation in which they are involved, in the sense that the course of the litigation must accord with that answer, may be a judgment within s.73 of the Constitution, even though it is not finally determinative of the rights and obligations of the parties. This view of s.73 is, I think, implicit in the observation of Gibbs C.J. in Fisher (1986) 161 CLR, at p 450:
"It has been held that an appeal will not lie to this Court
under s.73 of the Constitution from a judicial opinion which is advisory and which leaves the legal situation of the parties unaffected and does not by itself operate to affect in some way the parties' mutual rights and obligations: Saffron v. The Queen; Minister for Works (W.A) v. Civil and Civic Pty. Ltd." (emphasis added)

18. In this regard the distinction between final and interlocutory orders is not relevant to the operation of s.73 except perhaps indirectly as bearing upon the Court's willingness to grant special leave to appeal. In either case, the decision of the court from which it is sought to appeal is binding upon the parties and this is so even if the decision takes the form of answers given on a special case or on a case stated. See O'Toole (1990) 171 CLR, per Mason C.J. at pp 245-247, per Dawson J. at p 302.

19. The present case is different from those mentioned earlier in this judgment, save for Saffron. The power to refer to the Court of Criminal Appeal is a power to refer "any point of law that has arisen at the trial" s. 669A(2) of the Code. As to "arisen", see Australian Commonwealth Shipping Board v. Federated Seamen's Union of Australasia (1925) 36 CLR 442, at pp 450-452 (emphasis added). It may be invoked only if the person indicted has been acquitted of the charge or has been discharged after the Crown, as a result of a determination of the trial judge on a point of law, has informed the court that the Crown will not proceed upon the indictment.

20. As indicated earlier, the applicant was not acquitted; he was discharged. It is true that the answers by the Court of Criminal Appeal do not represent a final determination of the applicant's rights. But they cannot, as was suggested by the respondent, be characterised as advisory only. The points of law which gave rise to the questions asked of the Court of Criminal Appeal necessarily arose at the applicant's trial and the decision by the Crown not to proceed further upon the indictment and the decision to discharge the applicant were necessarily made "as a result" of the trial judge's determination on those points. The reference to the Court of Criminal Appeal was aimed at testing the correctness of the trial judge's rulings. The answers were given with reference to the specific circumstances of the charge against the applicant. Section 669A(3) of the Code required that notice of the reference be given to the applicant. Section 669A(4) permitted him to be heard on the points of law referred and he was heard. The applicant had a direct interest in preventing an unfavourable ruling which might cloud his discharge or bear adversely on his reputation. Furthermore, while I agree with Mason C.J., Deane, Dawson, Gaudron and McHugh JJ. that appealability does not depend upon a decision by the Crown to present a fresh indictment, nevertheless the availability of a fresh indictment is a consideration. It points up that, in a very relevant sense, proceedings against a person discharged in the circumstances mentioned in s.669A(2)(b) of the Code cannot be regarded as necessarily concluded.

21. It follows then that, although the answers given by the Court of Criminal Appeal cannot be said to be a final determination of the rights of the parties, they resulted from an exercise of judicial power in relation to points of law arising at the applicant's trial; they were sought by the Crown as the only means open to it to correct errors of law which the Crown contended had been made by the trial judge at trial; and they carried adverse implications for the applicant. If not capable of appeal to this Court, the answers given by the Court of Criminal Appeal that the rulings which led to the entry of a nolle prosequi against the applicant were made in error must stand unchallenged.

22. What I have written may suggest that, in terms of s.669A(2)(b), the position of an accused who has been discharged is stronger than that of a person who has been acquitted, when it comes to the operation of s.73. That may be. However, that is not to say that one case is appealable but not the other. It is not necessary to resolve that issue. But, in the case of a person discharged, the language of par.(b) of s.669A(2) - identifying a necessary connection between the trial judge's decision on points of law, the consequential discharge of the accused and the points referred to the Court of Criminal Appeal - together with the availability of a further indictment are powerful reasons for treating answers of the Court of Criminal Appeal as a "judgment" within s.73 of the Constitution. In either case, discharge or acquittal, the procedure employed is part of the judicial process and represents a "useful and now commonplace procedure for correcting error of law in criminal proceedings without undue infringement of the rule against double jeopardy". O'Toole (1990) 171 CLR, at p 284. All these considerations lead me to conclude that, in the present case, the interests of the applicant and the respondent are sufficiently affected by the answers of the Court of Criminal Appeal as to constitute those answers a judgment of that Court for the purposes of s.73. The question of appeals from "not guilty" verdicts in criminal cases, whether by direction or otherwise, is discussed briefly in Renfree, The Federal Judicial System of Australia (1984), p 273. That question does not arise here.

23. It follows that, in my view, Saffron was wrongly decided and should be overruled. It is unnecessary and inappropriate to consider overruling Fisher and Swiss Aluminium because they are not directly in point. But I am of opinion that those decisions should be reconsidered in so far as they held that no appeal lies to this Court from answers given to a special case or case stated when those answers do not determine the parties' rights, even when the answers are binding on the parties and affect them in the course of the litigation in which they are involved. In John v. Federal Commissioner of Taxation (1989) 166 CLR 417, at pp 438-440, 450-452, the Court discussed its power to review and depart from its previous decisions. There is no need to repeat what is said there except to note that none of the considerations that militate against departure precludes such a course in the present case. More importantly, we are concerned in the present case with the construction of a provision of the Constitution. While it has been said that, even in constitutional cases "it is obviously undesirable that a question decided by the Court after full consideration should be re-opened without grave reason", Kitto J. in Hughes and Vale Pty. Ltd v. State of New South Wales (1953) 87 CLR 49, at p 102, it has also been said that the reasoning of the Court in an earlier judgment on a constitutional question "may not be used as a substitute for the Constitution". Barwick C.J. in Damjanovic and Sons Pty. Ltd. v. The Commonwealth (1968) 117 CLR 390, at p 396.

24. In Queensland v. The Commonwealth (1977) 139 CLR 585, at pp 620-630. Aickin J. reviewed the circumstances in which an earlier decision of the High Court may be overruled and summarised the characteristics "which assist in the determination of the question whether a previous constitutional decision regarded as erroneous may, or should, be overruled" ibid., at p 630. It is unnecessary to refer to those considerations in any detail. Saffron was decided in a particular statutory context. Until the decision in O'Toole, it appears to have been mentioned only twice in the judgments of the High Court. The first occasion was in Minister for Works v. Civil and Civic (1967) 116 CLR, at p 282, where Kitto J. quoted a passage emphasising that when a court is authorised to give an advisory opinion, the opinion is not a judgment from which an appeal lies. If advisory opinion is understood in the sense identified in the present judgment, it is easy to understand Kitto J.'s reference. The second occasion was in Fisher, in the passage from the judgment of Gibbs C.J. quoted earlier, which gives Saffron a limited operation. Thus it cannot be said that Saffron is part of a "stream of authority" (1977) 139 CLR, at p 630; it can be confined to the precise question which it decided. The present case is concerned with a provision of the Constitution couched in broad terms and which bears directly upon the appellate jurisdiction of the High Court. If the Court is of the opinion that the decision in Saffron does not accord with the Constitution, there is no compelling reason for allowing the decision to stand. It should correct the error.

25. None of what I have written is intended to suggest that the appellate jurisdiction of this Court is capable of being controlled by the legislation under which (as in the present case) the Supreme Court has acted. The question is always whether what is appealed from answers the language of s.73 of the Constitution; that in turn presupposes that it is an exercise of judicial power that is sought to be challenged and that there are parties affected by the decision. The conclusion that the answers of the Court of Criminal Appeal fall within s.73 depends very much upon the terms of the relevant legislation and its implications for the parties.

26. It may be thought that the approach taken in this judgment casts the net of s.73 widely and that the result will be to involve the High Court in proceedings which are effectively concluded or which are still incomplete and will thereby be unduly interrupted. But that is to minimise the operation of the special leave procedure, Judiciary Act 1903 (Cth), s. 35A, including the expressed reluctance of the Court to entertain applications for special leave during the currency of a proceeding, see Yates v. Wilson (1989) 168 CLR 338; Coco v. Shaw (1991) 11 Legal Reporter p C1 in relation to committal proceedings, or when there is no longer a live issue between the parties.

27. I would grant special leave to appeal but would dismiss the appeal.

Orders

Application for special leave to appeal granted.

Appeal dismissed.