Re McBain; Ex Parte Australian Catholic Bishops Conference - [2002] HCA 16

HIGH COURT OF AUSTRALIA
GLEESON CJ,
GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ
RE JOHN McBAIN SECOND RESPONDENT
EX PARTE AUSTRALIAN CATHOLIC APPLICANTS
BISHOPS CONFERENCE & ANOR
Re McBain; Ex parte Australian Catholic Bishops Conference
[2002] HCA 16
18 April 2002
C22/2000
ORDER
Application dismissed with costs.
Representation:
D F Jackson QC with J A McCarthy QC and M Christie for the applicants (instructed by Dibbs Barker Gosling)
No appearance for the first respondent
F P Hampel QC with S J Moloney for the second respondent (instructed by John W Ball & Sons)
Interveners:
R G Orr QC with R Sofroniou intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor)
R J Ellicott QC with A J Tudehope intervening on behalf of the Australian Family Association (instructed by O'Hara & Company)
B W Walker SC with K L Eastman intervening on behalf of the Human Rights and Equal Opportunity Commission (instructed by the Human Rights and Equal Opportunity Commission)
C M Maxwell QC with K L Emerton intervening on behalf of the Women's Electoral Lobby (Victoria) Inc (instructed by Blake Dawson Waldron)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

HIGH COURT OF AUSTRALIA
GLEESON CJ,
GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ
RE JOHN McBAIN SECOND RESPONDENT
EX PARTE ATTORNEY-GENERAL OF APPLICANT
THE COMMONWEALTH OF AUSTRALIA
EX REL THE AUSTRALIAN EPISCOPAL
CONFERENCE OF THE ROMAN
CATHOLIC CHURCH
Re McBain; Ex parte Attorney-General (Cth) ex rel Australian Episcopal Conference of the Roman Catholic Church
18 April 2002
C6/2001
ORDER
Application dismissed with costs.
Representation:
D F Jackson QC with J A McCarthy QC and M Christie for the applicant (instructed by Dibbs Barker Gosling)
No appearance for the first respondent
F P Hampel QC with S J Moloney for the second respondent (instructed by John W Ball & Sons)
Interveners:
R G Orr QC with R Sofroniou intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor)
R J Ellicott QC with A J Tudehope intervening on behalf of the Australian Family Association (instructed by O'Hara & Company)
B W Walker SC with K L Eastman intervening on behalf of the Human Rights and Equal Opportunity Commission (instructed by the Human Rights and Equal Opportunity Commission)
C M Maxwell QC with K L Emerton intervening on behalf of the Women's Electoral Lobby (Victoria) Inc (instructed by Blake Dawson Waldron)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS
Re McBain; Ex parte Australian Catholic Bishops Conference
Re McBain; Ex parte Attorney-General (Cth) ex rel Australian Episcopal Conference of the Roman Catholic Church
Constitutional Law (Cth) – Judicial power of the Commonwealth – Matter – Claims in Court's original jurisdiction to certiorari for non-jurisdictional error of law on the face of the record in respect of concluded Federal Court litigation – Claimants not parties to prior litigation – No parties to prior litigation instituted appeal or sought constitutional relief in respect of the judgment in that litigation – Claimants include Commonwealth Attorney-General seeking to affirm the operation of a State law as not inconsistent with federal law within the meaning of s 109 of the Constitution – Whether claims give rise to a "matter" under Ch III of the Constitution – Whether a matter arises under s 75(v) or s 76(i) of the Constitution independently of the right of appeal – Whether, if so, relief should be granted in the exercise of the Court's discretion.
High Court – Jurisdiction – Whether Court's original jurisdiction extends to claims to certiorari for non-jurisdictional error of law on the face of the record in respect of concluded Federal Court litigation – Claimants not parties to prior litigation – Whether claims give rise to a "matter" under Ch III of the Constitution – Whether a matter arises under s 75(v) or s 76(i) of the Constitution independently of the right of appeal – Exercise of discretion to provide such relief.
Certiorari – Whether available against a judge of a federal superior court in respect of non-jurisdictional error of law on the face of the record – Discretion to grant – Whether Attorney-General entitled to certiorari as of right – Factors favouring discretionary refusal to grant certiorari in respect of non-jurisdictional error of law on the face of the record in litigation to which claimants were not parties.
Practice and procedure – Application to extend time – Application by Commonwealth Attorney-General on the relation of another for writ of certiorari instituted out of time – Factors favouring non-extension of time.
Practice and procedure – Parties – Intervention – Application by Commonwealth Attorney-General – Intervention by Attorney-General to put submissions partly at odds with submissions put by relator in name of Attorney-General.
Words and phrases – "matter".
Commonwealth Constitution, ss 75(v), 76(i).
Judiciary Act 1903 (Cth), ss 30(a), 32, 33, 78A.
High Court Rules, O 55 r 17, O 64 r 2.

GLEESON CJ.These proceedings are brought, in the original jurisdiction of this Court, to quash a decision of a single judge of the Federal Court of Australia, Sundberg J[1]. The ground of challenge to the decision is not that the judge acted outside jurisdiction, or otherwise fell into jurisdictional error. It is that the decision, made within jurisdiction, was wrong in law. No party to the action in the Federal Court desires to question the judge's decision. It was not the subject of any appeal. The applicants in this Court were not parties to the action in the Federal Court. The primary question that arises in this Court concerns the manner in which the challenge to the Federal Court decision is now made. It raises considerations of importance to the structure and role of the federal judiciary. If that question is resolved adversely to the applicants, it would be both unnecessary and inappropriate for this Court to decide whether the decision of Sundberg J was correct.
[1]McBain v Victoria (2000) 99 FCR 116.
The starting point must be a consideration of the nature of the matter which came before the Federal Court, and in respect of which that Court exercised the judicial power of the Commonwealth. The power of the Parliament to make a law defining the jurisdiction of the Federal Court is, relevantly, a power to make laws with respect to "matters" (Constitution, s 77). The original jurisdiction of this Court is conferred by the Constitution in "matters" (Constitution, ss 75, 76). It is necessary to identify the matter with respect to which the jurisdiction of the Federal Court was exercised, to relate that to the proceedings in which the jurisdiction of this Court is invoked, and to inquire whether the claims made in these proceedings involve a matter.
The framers of our Constitution adopted the term "matters" in preference to the terms "cases" and "controversies" which appear in Art III of the United States Constitution, and there are material differences between the two contexts[2]. Even so, Ch III was written "with a close eye to the judicial provisions of the United States Constitution"[3]. In neither jurisdiction is giving advisory opinions to the other branches of government regarded as a legitimate function of the federal judiciary. In In re Judiciary and Navigation Acts[4] the majority of this Court, holding invalid legislation purporting to confer on the Court such a jurisdiction, said:
"we do not think that the word 'matter' in s 76 [of the Constitution] 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."
[2]Truth About Motorways v Macquarie Infrastructure Investment Management (2000) 200 CLR 591 at 603 [21] per Gleeson CJ and McHugh J.
[3]Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 at 507-508 per Mason J; Moore, The Constitution ofthe Commonwealth of Australia, 2nd ed (1910) at 209.
[4](1921) 29 CLR 257 at 265.
This does not mean that there must always be a controversy between parties. As was pointed out in In re Judiciary and Navigation Acts[5], and again in R v Davison[6], judicial power may be exercised in proceedings ex parte, and in relation to subjects which, in another context, may have an administrative character. But the essential flaw in the legislation held invalid in the former case was that, inconsistently with s 76 of the Constitution, it purported to empower the Court "to determine abstract questions of law without the right or duty of any body or person being involved."[7]
[5](1921) 29 CLR 257 at 266-267.
[6](1954) 90 CLR 353 at 368 per Dixon CJ and McTiernan J.
[7](1921) 29 CLR 257 at 267.
Thus the Court does not pronounce, in the abstract, upon the validity or meaning of Commonwealth or State statutes. To do so would not be an exercise of judicial power conferred by or under Ch III. Such pronouncements are made in an adversarial context, where there is an issue concerning some right, duty or liability. As the majority in North Ganalanja Aboriginal Corporation v Queensland[8] put it, quoting from In re Judiciary and Navigation Acts:
"The law is not judicially administered by judicial declarations of its content 'divorced from any attempt to administer that law'."
[8](1996) 185 CLR 595 at 612.
It is the relationship, or absence of relationship, between the question of law sought to be raised for the Court's decision in the present case, and any attempt to administer that law, that, in my view, is decisive.
The adversarial context in which, subject to the qualifications earlier mentioned, the judicial power of the Commonwealth is exercised, may impose practical limitations upon the capacity of the judicial branch of government to resolve legal questions. Not all parties to legal disputes submit their disputes for resolution by the judicial process. If they do not, no occasion for the exercise of judicial power arises. Courts do not have a mandate to seek out interesting and important questions of law, and decide them, irrespective of the desire of parties to litigate. Whatever may be seen as the precise extent of the role of judges in making or declaring the law, it is limited in one vital, and salutary, respect: it can only be exercised in the course of deciding cases that are brought for judicial decision. And, even where litigation takes place, a losing party may, for any one of a number of reasons, including expense, accept a judicial decision without pursuing rights of appeal. Most decisions of courts of first instance never become the subject of appeal. Those decisions bind the parties, even though their precedential value may be limited, or their correctness may later be called in question, either at first instance, or on appeal, in proceedings between other parties. Many issues, or potential issues, of both private and public law, may never be judicially decided, or may never be decided by an appellate court, simply because of the manner in which people pursue their individual interests. And there may be limits, including limits dictated by political considerations, upon the lengths to which law enforcement authorities are prepared to go to enforce legislation in the courts.
In the present case, a law of the State of Victoria, which apparently bound a citizen in the conduct of his professional practice, was claimed by the citizen to be invalid. The Victorian authorities did not attempt to enforce the law against the citizen, or, when confronted with a legal challenge, to argue in support of its validity; although the Parliament of Victoria did not repeal the law. The validity of the law was a matter of concern to people other than the particular citizen and the law enforcement authorities, but the process of adversarial litigation turned out to be an unsatisfactory vehicle for testing that question. That is not an unusual situation. Decisions of courts often leave the law in a condition unsatisfactory to people who may be frustrated by the absence of an opportunity to challenge such decisions, or to test the law themselves.
Dr McBain found that certain treatment he proposed to administer to his patient, Ms Meldrum, was prohibited by s 8 of the Infertility Treatment Act 1995 (Vic) ("the Victorian Act"). That legislation was enacted for purposes which included the purpose of regulating the use of in-vitro and other fertilisation procedures and donor insemination procedures (s 1). The Victorian Parliament, in the Act, declared an intention that, in the administration of the Act, the welfare and interests of persons born as a result of a treatment procedure were to be paramount, and that infertile couples should be assisted in fulfilling their desire to have children (s 5). Section 8 of the Act limits the class of persons to whom treatment procedures can be provided. It provides that a woman who undergoes a treatment procedure must be married and living with her husband or must be living with a man in a de facto relationship. Section 6 imposes a penalty of fine or imprisonment for carrying out a fertilisation procedure contrary to s 8. Other provisions of the Act (eg ss 9, 10, 11, 20, 21, 63, 74, 75) reflect an assumption that infertility treatment will be provided, and children born, in a familial context, where two parents take responsibility for the upbringing of a child. It is not for this Court to decide whether that is sound legislative policy; but it is obvious that this is a subject upon which many people in the community hold strong views. Dr McBain claimed that s 8 was inconsistent with s 22 of the Sex Discrimination Act 1984 (Cth) ("the Commonwealth Act"). If that contention is correct, then, by virtue of s 109 of the Constitution, s 8 is invalid and Dr McBain, accordingly, is free to act in a manner contrary to its provisions without fear of prosecution or punishment. To vindicate his claim, he commenced proceedings in the Federal Court against the State of Victoria, the Minister for Health of the State of Victoria, and the Infertility Treatment Authority. He also joined Ms Meldrum as a respondent. He claimed a declaration that s 8 was invalid and sought consequential relief. Proceedings so constituted involved an assertion by Dr McBain, advanced against those responsible for administering the relevant Victorian law, that the law was invalid because of inconsistency with a law of the Commonwealth, and that he was not bound by its terms. That claim gave rise to a matter arising under the Constitution. The matter concerned the claim that Dr McBain was at liberty, without fear of contravention of the law and of the possible consequences of such contravention, to administer infertility treatment contrary to the terms of s 8 of the Victorian Act.
We have only limited information as to the circumstances which prompted Dr McBain to commence his action in the Federal Court. We do not know whether he was ever threatened with prosecution. We do not know what attitude was taken by the Victorian authorities, before the commencement of the Federal Court action, to the enforcement of the provisions of the Victorian statute.
As the contentions advanced in argument in this Court demonstrate, the question whether s 8 of the Victorian Act is inconsistent with s 22 of the Commonwealth Act is one upon which cogent arguments can be advanced either way. It involves the true construction of the Commonwealth Act and, according to certain submissions put to us, questions as to the validity of s 22 itself.
In the event, none of the respondents to Dr McBain's action sought to resist his claim. The State of Victoria and the Minister did not concede inconsistency, but they did not address any argument to the Federal Court in support of the validity of the Victorian legislation. The Infertility Treatment Authority adopted a passive role. Ms Meldrum, appearing by counsel, supported Dr McBain. We do not know when Dr McBain or his lawyers first discovered that this would be the litigious stance of the various other parties to the action. It was not suggested in argument that the proceedings in the Federal Court were collusive. But they were not defended by the parties joined by Dr McBain as respondents to his action. As sometimes happens, the adversary procedure failed to produce a contest between the supposedly adversarial parties. Members of the public who supported the policy of the Victorian Act found that, in the proceedings brought to test the validity of the Act, no party sought to uphold the legislation.
Notices of the proceedings were given to all Attorneys-General, including the Attorney-General of the Commonwealth, pursuant to s 78B of the Judiciary Act 1903 (Cth) ("the Judiciary Act"). Sections 78A and 78B of the Judiciary Act are a legislative response to some of the difficulties mentioned above. It often happens that issues as to the meaning or validity of statutes, including constitutional issues, are raised in proceedings between private parties; proceedings of which governments affected by such issues may not be aware. Section 78A empowers the Commonwealth and State Attorneys-General to intervene in proceedings that relate to a matter arising under the Constitution or involving its interpretation. (Dr McBain's case was such a matter). Section 78A(3) provides that, where such intervention occurs, the intervener is, for purposes of instituting or resisting an appeal, to be taken to be a party to the proceedings. Section 78B requires notification to the Attorneys-General of pending causes which involve a matter arising under the Constitution or involving its interpretation. Section 40 provides that, if such a cause is pending in a federal court other than the High Court, or in a court of a State or Territory, then, upon the application of an Attorney-General, the cause shall be removed into the High Court. In Dr McBain's case, there was no intervention by any Attorney-General, and no application for removal of the cause into this Court.
In the Federal Court, the only active supporters of the validity of the Victorian legislation were the Australian Catholic Bishops Conference and the Australian Episcopal Conference of the Roman Catholic Church ("the Bishops"). The Bishops filed a notice of motion seeking, in the alternative, that they "be joined in this proceeding as fifth and sixth respondents respectively pursuant to O 6 r 8 [or] that [each group of Bishops] be granted leave to intervene … as amicus curiae". On the hearing of the motion, the application was confined to an application for the Bishops to be heard as amici curiae. Sundberg J said in his reasons for judgment that he granted that application because otherwise there would have been no contradictor. There may have been a question whether O 6 r 8 of the Federal Court Rules applied to the Bishops. That rule permits joinder as a party of a person who ought to have been joined or whose joinder is necessary to ensure that all matters in dispute may be effectually and completely determined upon. The Bishops clearly did not fall into the first category. Ultimately, they did not press an argument that they fell into the second category. If such an argument had been successful they would have had a right to appeal against an adverse decision; but they would have been at risk as to costs. The reference in the notice of motion to intervening as amici curiae was inaccurate, but nothing turns on that[9]. Ultimately the Bishops sought and obtained leave to be heard as amici curiae. They were not parties, and had no right of appeal.
[9]As to the difference between intervention and putting submissions as amicus curiae, and as to the basis for making an application to take one or other course, see Levy v Victoria (1997) 189 CLR 579 at 600-605 per Brennan CJ and 650-652 per Kirby J.

Sundberg J decided the case in favour of Dr McBain, declaring that s 8 of the Victorian Act was invalid, and that Dr McBain could lawfully carry out treatment procedures contrary to its terms. Consistently with their conduct in the action, none of the respondents to the action appealed.
It was against that background that the proceedings in this Court were instituted. The steps that were taken are described in the reasons for judgment of Gaudron and Gummow JJ. Stripped of some of the procedural complexities there examined, including problems as to standing, limitations upon time, and the role of interveners in this Court, the applications seek relief in the form of certiorari, quashing the decision of Sundberg J for error of law on the face of the record. The essential error is said to lie in the conclusion that s 8 of the Victorian Act was inconsistent with s 22 of the Commonwealth Act and therefore, by virtue of s 109 of the Constitution, invalid.
The ordinary processes of appeal not having been invoked, and the parties to the proceedings before Sundberg J being content to accept his decision, the question arises as to the capacity of the applicants (effectively, the Bishops and the Attorney-General of the Commonwealth at the relation of the Bishops) to have the decision quashed by certiorari. That question requires consideration of the jurisdiction of this Court which the applicants seek to invoke.
There are two possible sources of jurisdiction: ss 75(v) and 76(i) of the Constitution. Reliance on s 76(i), in turn, directs attention to ss 30(a) and 32 of the Judiciary Act. In each case, it is necessary to identify the matter in which the Court is said to have jurisdiction.
Since no jurisdictional error is attributed to Sundberg J, no officer of the Commonwealth is alleged to have acted in excess of jurisdiction, and no basis for prohibition has been shown[10]. Certiorari under s 75(v) of the Constitution is ancillary to the jurisdiction to grant prohibition, mandamus, or an injunction[11]. Accordingly, there being no jurisdiction under s 75(v), it becomes necessary to turn to s 76(i) and to ss 30(a) and 32 of the Judiciary Act.
[10]Re McJannet; Ex parte Minister for Employment, Training and Industrial Relations (Q) (1995) 184 CLR 620 at 644 per Brennan CJ, Deane and Dawson JJ, 653 per Toohey, McHugh and Gummow JJ; Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 90-91 [14], [16] per Gaudron and Gummow JJ.
[11]Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 90-91 [14] per Gaudron and Gummow JJ.
Section 76(i) empowers the Parliament to make laws conferring original jurisdiction on the Court in any matter arising under the Constitution or involving its interpretation. It is argued for the applicants that ss 30(a) and 32 of the Judiciary Act are such laws. Section 30(a) confers jurisdiction on the Court in all matters arising under the Constitution or involving its interpretation. Section 32 empowers the Court in the exercise of such jurisdiction to grant all such remedies as the parties are entitled to; so that as far as possible all matters in controversy between the parties may be completely and finally determined. What is the matter arising under the Constitution or involving its interpretation? What are the matters in controversy between the parties?
Before those questions are answered, it should be noted that the argument for the applicants assumes that a writ of certiorari is a remedy of the kind to which s 32 refers, and that such a remedy may be granted in respect of a decision of the Federal Court on the basis of non-jurisdictional error of law on the face of the record. The second part of that assumption was strongly disputed, reliance being placed on the reasoning of Deane J in R v Gray; Ex parte Marsh[12]. It is unnecessary to decide that question in this case. Furthermore, it is common ground that, assuming certiorari may go to the Federal Court for non-jurisdictional error, the remedy is discretionary. Arguments were advanced both ways on the matter of discretion. As will appear, I do not reach that issue. But if I did, I would find it necessary in considering the position of the Bishops, and the significance of their failure to press for joinder as parties to the action in the Federal Court under O 6 r 8 of the Federal Court Rules, to form a view on whether their position was covered by that rule. If O 6 r 8 did not apply to their position, and they had no realistic prospect of becoming parties to the proceedings, then their decision to confine their role in the Federal Court to that of amici curiae, with the consequence that they had no right of appeal, would, in my mind, have a discretionary significance different from that which it might otherwise have. Furthermore, a full appreciation of their position would require attention to the significance of the fact that the Victorian authorities did not seek, by argument, to uphold the Victorian legislation.
[12](1985) 157 CLR 351 at 385-389.
The controversy (such as it was) between Dr McBain and the public authorities responsible for the administration of the Victorian legislation, concerning the question whether Dr McBain would be in breach of the law, and liable to prosecution and punishment, if he were to provide treatment to Ms Meldrum and others, contrary to the terms of s 8 of the Victorian Act, was settled by the exercise of federal judicial power by Sundberg J; and the parties to that controversy were content to accept his decision. The Federal Court's exercise of judicial power in relation to the matter the subject of its jurisdiction had run its course. The parties to the proceedings were bound by the decision. Others may not have been happy with the decision, or with the process of reasoning by which it was reached. The process of reasoning was not itself a matter, although it may have been of concern to others because of the precedential weight that might be attached to it in other cases. But the fact that somebody, not a party to proceedings, who reads a judge's reasons for a decision, disagrees with those reasons, even where, if applied in another case they may directly affect the reader, does not give rise to a justiciable issue between the reader and the judge. Different considerations may apply where a stranger to proceedings complains that a court or tribunal has exercised, or is threatening to exercise, power in excess of jurisdiction. But there is no claim here that Sundberg J exceeded jurisdiction. The complaint is simply that he made an error of law in the due exercise of his jurisdiction.
This Court is asked, by people who were not parties to the action in the Federal Court, to quash the decision of Sundberg J on the ground that it was wrong. People who were not parties to litigation do not have a claim of right to have judicial decisions quashed because they are erroneous. Suppose, for example, a taxpayer became involved in litigation against the revenue authorities, in the Federal Court, and the litigation raised a question as to the interpretation of a certain provision of the Act, under which tax is assessed. That question might affect many other taxpayers as well. Suppose a Federal Court judge answers the question adversely to the taxpayer, who accepts the decision and does not appeal. It does not follow that some other taxpayer, affected by the same issue, could have the decision quashed. The second taxpayer's adverse opinion of the correctness of the judge's reasoning does not give rise to a justiciable issue between the second taxpayer and the judge; and the judge has made no determination of the second taxpayer's rights, even though, in a precedential sense, the decision may affect the assertion of those rights. Or suppose the taxpayer succeeds in the Federal Court, on a basis that points the way to the success of some arrangement to minimise tax, and the revenue authorities do not appeal. Concerned citizens, opposed to tax minimisation, do not thereby find themselves legally at issue with the judge, or the taxpayer, or the revenue authorities.
A similar problem could arise in relation to litigation which is settled following a decision at first instance. In the United States, it has been held that if, pending an appeal, a case is settled and the judgment becomes moot, federal judicial power may not be exercised by appellate consideration of the merits, but extends only to orders for the proper disposition of the proceedings[13].
[13]Walling v Reuter Co 321 US 671 at 677 (1944); US Bancorp Mortgage Co v Bonner Mall Partnership 513 US 18 (1994). See Chemerinsky, Federal Jurisdiction, 3rd ed (1999) at 126-129.
Whether the outcome of the Federal Court action was correct or erroneous, the rights of Dr McBain in relation to the effect of s 8 of the Victorian Act upon his medical practice have been declared by an exercise of the judicial power of the Commonwealth. The parties bound by that declaration include the State of Victoria and the Authority charged with the responsibility of administering the Victorian Act. There is no justiciable issue between the Bishops and Dr McBain, or the Attorney-General of the Commonwealth and Dr McBain, as to those rights. And there is no justiciable issue between the Bishops or the Attorney-General of the Commonwealth and Sundberg J.
No law of the Commonwealth has been declared to be invalid. No attempt to administer or apply a law of the Commonwealth has been impeded. The moving parties in the proceedings in this Court contend that, contrary to what was held by Sundberg J, a law of Victoria is valid. The contention may or may not be correct, but it cannot be determined by this Court as an abstract or hypothetical question divorced from any attempt to administer the law in question. The Attorney-General of the Commonwealth is not attempting to administer or enforce the law of Victoria[14]. The Victorian authorities accept the decision of the Federal Court. The Bishops, who support the policy of the law, who are dismayed that Dr McBain has been held to be entitled to ignore it with impunity, and who are no doubt concerned that the practical consequence of the decision of Sundberg J will be that the Victorian authorities, medical practitioners, and others, will disregard the law as invalid, contend that the judge made an erroneous decision in favour of Dr McBain. But for one citizen to say that a judge wrongly decided a case in favour of another citizen does not give rise to a matter. Nor does a complaint by the Attorney-General of the Commonwealth that a law of the State of Victoria has been held invalid, by a decision which is accepted by, and binds, the State of Victoria, in circumstances such as the present, give rise to a matter.
[14]cf R v Hughes (2000) 202 CLR 535 at 554 [36].
There is no subsisting matter to found the jurisdiction that has been invoked.
Both applications should be dismissed with costs.
GAUDRON AND GUMMOW JJ. In order to appreciate the issues which arise in these two applications in the original jurisdiction of this Court, it is necessary to describe what transpired in certain concluded litigation in the Federal Court. It then will be convenient to demonstrate that the claims made by the applicants to certiorari for non‑jurisdictional error of law on the face of the Federal Court record give rise to no "matter" within the meaning of Ch III of the Constitution, and thus must fail.
Paragraph (b) of s 39B(1A) of the Judiciary Act 1903 (Cth) ("the Judiciary Act") confers original jurisdiction on the Federal Court of Australia "in any matter … arising under the Constitution or involving its interpretation". This jurisdiction was invoked in an application (No V673 of 1999) made to the Federal Court on 3 December 1999 in which declaratory relief was sought. The applicant was Dr John McBain. There were four respondents: the State of Victoria, the Minister for Health of the State of Victoria, the Infertility Treatment Authority and Ms Lisa Meldrum, respectively. The second respondent ("the Minister") was charged with the administration of the Infertility Treatment Act 1995 (Vic) ("the State Act"). The third respondent ("the Authority") is a body corporate established by s 121 of the State Act, and having various powers, functions, duties and consultation requirements detailed in s 122 thereof.
Dr McBain is a gynaecologist specialising in reproductive technology and in‑vitro fertilisation ("IVF") techniques. Ms Meldrum wished to obtain IVF treatment and consulted Dr McBain. He concluded that a treatment procedure ought to be provided to her but told her that, since she was neither married nor living with a man in a de facto relationship, the State Act precluded her from undergoing that treatment procedure. In particular, Ms Meldrum did not fall within the description of persons in s 8 of the State Act who may undergo treatment procedures.
Dr McBain is approved by the Authority under Div 3 of Pt 8 (ss 101, 102) of the State Act to carry out fertilisation procedures under that statute. It would be an offence under s 6 of the State Act for Dr McBain to carry out such a procedure unless he was satisfied that the woman undergoing the procedure complied with the requirements of s 8 of the State Act.
In his application, Dr McBain sought a declaration to the effect that s 8 of the State Act is rendered invalid by s 109 of the Constitution for inconsistency with s 22 of the Sex Discrimination Act 1984 (Cth) ("the Commonwealth Act"). Section 22 of the Commonwealth Act renders it unlawful for a person who provides goods or services or makes facilities available to discriminate against another person on the ground, among other things, of the marital status of that other person, by refusing to provide the other person with those goods or services or to make those facilities available to the other person.
At the hearing before Sundberg J, Dr McBain, the State, the Minister and Ms Meldrum appeared by counsel. Counsel for Ms Meldrum adopted the submissions made on behalf of Dr McBain. The Authority in effect filed submitting appearance. Counsel for the State and the Minister took what they identified as a "neutral position", neither asserting nor conceding an inconsistency between the State and federal laws.
The Federal Court acceded to an application by counsel on behalf of the Australian Catholic Bishops Conference ("the Bishops") and the Australian Episcopal Conference of the Roman Catholic Church ("the Episcopal Conference") that they be heard as amici curiae. The first amicus has a membership comprising 42 archbishops and bishops exercising office in one of the 32 Roman Catholic dioceses in Australia; the second body is a company limited by guarantee which is a corporate trustee of the first. Counsel for the amici submitted that, upon the proper construction of s 22 of the Commonwealth Act, s 22 did not apply to the provision of that treatment sought by Ms Meldrum and that there was no inconsistency with the State Act; accordingly, the requirements of s 8 of the State Act applied to Ms Meldrum.
The order by Sundberg J granting the Bishops and the Episcopal Conference leave to intervene as amici curiae was made upon their motion which sought, in the alternative, that those bodies be joined as fifth and sixth respondents. That application was not proceeded with. One consequence of that election was that the amici had no standing to appeal the decision of Sundberg J.
Notices of the Federal Court proceeding were given to the Attorneys-General as required under s 78B of the Judiciary Act; there was no intervention in response to those notices. Section 78A(1) provides for intervention by Commonwealth, State, Australian Capital Territory and Northern Territory Attorneys-General "on behalf of" the respective polities in proceedings that "relate to a matter arising under the Constitution or involving its interpretation". Where there is such an intervention then, for the purposes of the institution and prosecution of an appeal, the Attorney-General "shall be taken to be a party to the proceedings" (s 78A(3)). It should be observed that it is the Attorney, not the Commonwealth or other polity, who receives the status of a party. That is significant for arguments considered later in these reasons.
It also should be added that, at any stage before final judgment in the Federal Court, the cause pending in that Court might have been removed into the High Court upon application by any of the Attorneys-General and by order of the High Court made "as of course": Judiciary Act, s 40(1). No such application under s 40 was made.
On 28 July 2000, Sundberg J delivered reasons for judgment[15] and pronounced orders. However, the orders were not entered until 9 August 2001. Sundberg J made an order in the following terms for declaratory relief:
[15]McBain v Victoria (2000) 99 FCR 116.
"1.[Section] 8(1) of [the State Act], to the extent to which it restricts the application of any treatment procedure regulated by it to a woman who –
(a)is married and living with her husband on a genuine domestic basis; or
(b)is living with a man in a de facto relationship as defined in s 3(1) of the State Act
('the marriage requirement'), is inconsistent with s 22 of [the Commonwealth Act] and inoperative by reason of s 109 of [the Constitution].
2.The sections of the State Act referred to in the attached Schedule^[[16]^], to the extent that they are dependent upon the marriage requirement, are inconsistent with s 22 of [the Commonwealth Act] and inoperative by reason of s 109 of the Constitution.
3.The applicant may lawfully carry out a treatment procedure in respect of the fourth respondent notwithstanding that she does not satisfy the marriage requirement."
Paragraph 3 was properly made as an application of pars 1 and 2 to the circumstances of the applicant; his peril of contravention of the State Act had supplied his standing[17]. His Honour ordered that the State and the Minister pay the costs of Dr McBain.
[16]The Schedule identifies ss 8(2) and (3), 9(1)(b), 10(1)(a) and (b), 10(2), 11(1) and (2), 18(1)(a) and (c), 20(1), (2) and (3), 21, 62(2)(d), 63(2)(c), 66(c), 67(1) and (4)(a), 71(1), (2), (3), (6), (7), (8) and (9), 72(1), (3), (4), (5), (7) and (8). The Schedule was included in response to submissions respecting the consequential effects of the declaration in par 1 of the Order, that s 8 was inoperative.
[17]cf Croome v Tasmania (1997) 191 CLR 119 at 126‑127, 138.
The Federal Court is created by the Federal Court of Australia Act 1976 (Cth) as a superior court of record (s 5(2)). Sections 24 and 25 of that Act provide for appeals to a Full Court and s 33 provides for appeals (by special leave) to this Court. The orders of the Federal Court remain effective and binding upon the parties to the proceeding in which they were made until they are set aside on appeal or by relief granted in the original jurisdiction of this Court pursuant to s 75(v) of the Constitution for jurisdictional error; Sundberg J, as a judge of the Federal Court, is an officer of the Commonwealth for the purposes of par (v) of s 75. Further, Re Macks; Ex parte Saint[18] establishes that the authority of the Federal Court to make a determination which is binding in this way extends to the situation where there is a question whether the Federal Court had jurisdiction in the matter.
[18](2000) 204 CLR 158.
However, no suggestion has been made that the Federal Court lacked jurisdiction or exceeded its jurisdiction in making the orders in question. Plainly it acted within the jurisdiction conferred by par (b) of s 39B(1A) of the Judiciary Act. Further, in this Court, no party to the Federal Court litigation has asserted that in any respect the Federal Court fell into error of any description. No appeal has been instituted. No party to the determination by the Federal Court seeks relief under s 75(v) in this Court. The exercise of the judicial power of the Commonwealth in the disposition of the matter of which Sundberg J was seized is at an end.

Yet, in the present two proceedings in the original jurisdiction of this Court (No C22/2000 and No C6/2001), the applicants, who were not parties to the litigation in the Federal Court, move this Court in the first instance for orders absolute which would quash the decision of Sundberg J. The application in C22 was commenced in October 2000, that is to say within six months of the pronouncement of the Federal Court orders. However, the application in C6 was commenced on 17 August 2001 well outside that period.
Order 55 r 17 of the High Court Rules provides that an order nisi for a writ of certiorari should not be granted unless the application is made not later than six months from the date of the order of the court or tribunal in question. Although the second and relator application, C6, is out of time, it is accepted that there is a power to extend the period specified in O 55 r 17[19].
[19]Order 64 r 2.
The applicants in C22 are the Bishops and the Episcopal Conference. The applicant in C6 is the Attorney-General of the Commonwealth on the relation of the Episcopal Conference. That may be thought to obviate any dispute as to the standing of the applicants in C22 and to render C22 otiose. However, C6 was instituted out of time and, as will appear, the relator and the Attorney-General are at odds respecting some of the grounds upon which relief is sought. To each application Sundberg J is the first respondent and Dr McBain (the applicant in the Federal Court proceeding) is the second respondent. None of the four respondents to the Federal Court proceeding was joined as respondent in this Court. They were given notice of the present proceedings.
The Court granted applications for intervention by the Women's Electoral Lobby (Victoria) Inc, the Human Rights and Equal Opportunity Commission, and the Australian Family Association. The first two interveners oppose the grant of relief in C6 and C22, and the third supports it.
In each application, one ground for relief is the absence of inconsistency between s 8 of the State Act and s 22 of the Commonwealth Act. In other respects, to which reference will be made, the grounds do not coincide. However, in each application the primary relief sought is the same. In the written submissions it was formulated as follows:
"An order that a writ of certiorari issue quashing the decision of [Sundberg J] in Matter V623 of 1999 in the Federal Court of Australia made on 28 July 2000 and entered on 9 August 2001."
No relief (for example, by way of prohibition) is sought against Dr McBain, but it is submitted that he is joined appropriately in respect of the certiorari application.
If the application for extension of time in the relator proceeding, C6, is unsuccessful then in the earlier matter, C22, the applicants, the Bishops and the Episcopal Conference, would press a motion that "the Attorney-General of the Commonwealth of Australia (Ex relatione [the Episcopal Conference]) be joined as an applicant/prosecutor in these proceedings". The Attorney-General, if so joined, would put submissions partly at odds with those of the relator. The Attorney also asserts a right of intervention under s 78A of the Judiciary Act which extends to putting submissions contrary to those of the applicants he otherwise supports.
The involvement of the Attorney-General as an applicant arises from the grant of two fiats, the first on 10 August 2001 and the second on 29 August 2001. It is the later fiat to which attention should be devoted. It was expressed as a grant to the Episcopal Conference of the Attorney's fiat:
"to seek relief in the original jurisdiction of the High Court in relation to the judgment of the Honourable Justice Sundberg of the Federal Court of Australia in McBain v State of Victoria (2000) 99 FCR 116.
The grant of the fiat is limited to an application for relief on the basis that the [Commonwealth Act] does not, as a matter of construction, apply to infertility treatment the subject of the [State Act] and is not inconsistent with the [State Act] for the purpose of section 109 of the Constitution …
The fiat is granted on the basis that any proceeding commenced or maintained in reliance on the fiat is at the sole risk and cost of the relators."
For their part, the Bishops and the Episcopal Conference rely upon further grounds. In particular, they refer to sub‑ss (4) and (10) of s 9 of the Commonwealth Act. These provisions require that s 22 of that statute be read so that it has "effect in relation to discrimination against women, to the extent that the provisions [of s 22] give effect to [the Convention on the Elimination of All Forms of Discrimination Against Women ('the Convention')]". A copy of the English text of the Convention is set out in the Schedule to the Commonwealth Act. The effect of s 9 is to require s 22 to be read in a particular fashion and not otherwise. The Bishops and the Episcopal Conference contend that, to the extent that s 22 of the Commonwealth Act has the operation and scope propounded by Sundberg J in his reasons for judgment, it is not, within the limitation upon s 22 imposed by s 9, a provision which has as its purpose or object the implementation of the Convention.
These submissions as to the construction of the Commonwealth Act turn upon the application of s 9 and thus indirectly upon the provisions of the Convention. However, the applicants, in our view correctly, accept that the issues presented are of construction, not validity, of the Commonwealth Act; in particular, no question arises respecting the scope of the external affairs power (s 51(xxix))[20].
[20]cf Attorney-General (NSW) v Commonwealth Savings Bank (1986) 160 CLR 315 at 327‑328.
On the other hand, the Attorney-General submits that s 22 does have as its purpose or object the implementation of the Convention. The Attorney's concurrence with the Bishops and the Episcopal Conference is, as the terms of the fiat indicate, limited to the proposition that on the proper construction of s 22 there is no inconsistency between the State Act and the Commonwealth Act, and that Sundberg J erred in law in deciding the contrary.
From this procedural imbroglio, in which the relator and the Attorney are partly at odds and seek to have the Court resolve their differences, various questions arise. They include the standing of the Bishops and the Episcopal Conference in the absence of the fiat, the effect of the grant of the fiat upon the conduct of the litigation on the relation of the Episcopal Conference, and the advancement by the Attorney-General, purportedly as an intervener "on behalf of the Commonwealth" under s 78A of the Judiciary Act, of submissions contrary to those by counsel in the proceeding initiated by the Attorney on relation. It has been observed above that, nevertheless, s 78A(3) renders the Attorney, not the Commonwealth, a party. In argument, the question was raised of the applicability for the present litigation in this Court of what was said by Lord Cottenham LC of the High Court of Chancery[21]:
"[O]n an information, the Attorney-General was the party prosecuting the cause, and was the only party whom the Court could recognise in that character; and, therefore, that his Lordship could not hear the Attorney-General against the relator, or the relator against the Attorney-General."
[21]The Attorney-General v The Ironmongers' Company (1841) Cr & Ph 208 at 218 [41 ER 469 at 474]. See also Tudor on Charities, 8th ed (1995) at 347‑348; Picarda, The Law and Practice Relating to Charities, 3rd ed (1999) at 697‑701.
What has been said to date in this Court respecting relator actions in constitutional litigation is that the actions are "none the less the Attorney-General's action"[22] and the actions are "as competent or incompetent as if [they] were brought ex officio by him"[23]. Those statements and basic principles flowing from In re Judiciary and Navigation Acts[24] would suggest that the sense of the Lord Chancellor's ruling applies to the present litigation and that, upon its true construction, s 78A of the Judiciary Act does not authorise the Attorney to intervene in a proceeding which already is the Attorney's action, albeit on relation of private interests. Any other reading of s 78A may imperil its validity.
[22]Attorney-General (Vict) v The Commonwealth (1945) 71 CLR 237 at 275.
[23]Attorney-General (Vict) v The Commonwealth (1935) 52 CLR 533 at 560; cf Attorney-General (Cth); Ex rel McKinlay v The Commonwealth (1975) 135 CLR 1 at 4.
[24](1921) 29 CLR 257.
However, the provision of answers to all these questions may be put aside at this stage to concentrate upon the primary and essential issue. This is the identification of the "matter" in respect of which it is said this Court is seized of jurisdiction in each of C22 and C6. The contention is that each is a matter arising under the Constitution or involving its interpretation, thereby founding the original jurisdiction of this Court under s 76(i) of the Constitution as implemented by s 30(a) of the Judiciary Act. No reliance is placed upon s 75(v) of the Constitution; the applicants do not assert any jurisdictional error by the Federal Court. They accept that the errors of which they complain, if made, were errors within jurisdiction and there is no remedy under s 75(v) to which certiorari might be appended.
Rather, it appears that certiorari, for error of law on the face of the record in the Federal Court is relied upon as a remedy founded in the general terms of s 32 of the Judiciary Act. This confers power to grant remedies in order to "completely and finally determin[e]" the matter arising under the Constitution or involving its interpretation. Section 32 states:
"The High Court in the exercise of its original jurisdiction in any cause or matter pending before it, whether originated in the High Court or removed into it from another Court, 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 brought forward by them respectively in the cause or matter; so that as far as possible all matters in controversy between the parties regarding the cause of action, or arising out of or connected with the cause of action, may be completely and finally determined, and all multiplicity of legal proceedings concerning any of such matters may be avoided."
In his reasons for judgment, Hayne J refers to the affinity between s 32 and the All Writs Act (being s 14 of the United States Judiciary Act of 1789). The tenor of the decisions upon the All Writs Act is that, save to test the jurisdiction of the inferior court or tribunal in question, certiorari should not be granted in any case (including for error of law on the face of the record) where there is an adequate remedy by way of appeal or writ of error.
In respect of the litigation tried by Sundberg J, there were adequate appellate avenues to the Full Court and thence by special leave to this Court. The circumstance that appellate standing was limited to parties to the Federal Court litigation cannot render those appellate processes inadequate because strangers lack the standing to meddle in concluded litigation.
Different considerations would, for example, arise in respect of an alleged non‑jurisdictional error of law by a federal court which was not created as a superior court of record and from whose decisions there was no appeal and, in particular, a law complying with s 73 of the Constitution precluded any appeal to this Court. In such a situation, where a party to the decision could frame the complaint within one or more of the species of "matter" in respect of which this Court had original jurisdiction under s 75 of the Constitution, or a law made under s 76, then a remedy under s 32 of the Judiciary Act in the nature of certiorari might well be appropriate. But that is not this case.
What is the nature and content of the alleged "matter" where the Bishops, the Episcopal Conference and the Attorney-General of the Commonwealth seek the issue of certiorari to quash the decision of Sundberg J, to which none of them was a party?
In Attorney-General (Vict) v The Commonwealth, Dixon J referred to the "traditional duty of the Attorney-General to protect public rights and to complain of excesses of a power bestowed by law" and to the adaptation of that duty to the federal system[25]. His Honour also observed[26]:
"We cannot allow the validity of Acts of Parliament to be submitted to our decision as abstract questions. The Court pronounces upon the validity of a law only when called upon to do so in determining a cause or matter within the Court's jurisdiction. Speaking broadly, it must arise in a proceeding in which a right or immunity is asserted or a wrong or threatened wrong is complained of."
The reference to "abstract questions" is a reminder of the relationship between (i) judicial power, (ii) the judicial power of the Commonwealth and (iii) federal jurisdiction.
[25](1945) 71 CLR 237 at 272. See also Tasmania v Victoria (1935) 52 CLR 157 at 171, 186.
[26](1945) 71 CLR 237 at 272.
In Gould v Brown[27], McHugh J said of In re Judiciary and Navigation Acts that:
"that case holds that the content of the judicial power of the Commonwealth is narrower than the content of judicial power[28]. In In re Judiciary and Navigation Acts this Court did not reject the conferring of non‑judicial power on federal courts. That was not the issue that arose for decision. Rather, the Court rejected the conferring of judicial power that was not the judicial power of the Commonwealth. All members of the Court accepted[29] that Pt XII of the [Judiciary Act] purported to invest this Court with a 'judicial function'. What the majority denied was that this Court could be invested with a judicial function that did not involve the determination of a 'matter' within the meaning of ss 75 and 76 of the Constitution."
That questions of federal jurisdiction, which are bound up with the meaning of "matter", and of "the judicial power of the Commonwealth" identified in s 71 of the Constitution, may overlap is illustrated by the following passage from the judgment of Gaudron J in Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd[30]:
"Although the constitutional meaning of 'matter' is to be derived, in significant part, from the concept of 'judicial power', it is not necessary in this case to attempt any exhaustive exposition of that concept. It is sufficient to describe judicial power as that power exercised by courts in making final and binding adjudications as to rights, duties or obligations put in issue by the parties[31]. Similarly, it is sufficient to note that the constitutional meaning of 'matter' involves the existence of a controversy as to 'some immediate right, duty or liability to be established by the determination of the Court'[32]."
[27](1998) 193 CLR 346 at 421 [118]. See also at 440 [178] and Re Wakim; Ex parte McNally (1999) 198 CLR 511 at 542 [10], 544 [17].
[28]The Commonwealth v Queensland (1975) 134 CLR 298 at 325.
[29]In re Judiciary and Navigation Acts (1921) 29 CLR 257 at 264, 270.
[30](2000) 200 CLR 591 at 610‑611 [43].
[31]See Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330 at 357 per Griffith CJ; Waterside Workers' Federation of Australia v JW Alexander Ltd (1918) 25 CLR 434 at 463 per Isaacs and Rich JJ; Rola Co (Australia) Pty Ltd v The Commonwealth (1944) 69 CLR 185 at 211‑212 per Starke J; Re Ranger Uranium Mines Pty Ltd; Ex parte Federated Miscellaneous Workers' Union of Australia (1987) 163 CLR 656 at 666; Harris v Caladine (1991) 172 CLR 84 at 147 per Gaudron J; Re Nolan; Ex parte Young (1991) 172 CLR 460 at 497 per Gaudron J; Precision Data Holdings Ltd v Wills (1991) 173 CLR 167 at 188; Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 at 256‑259 per Mason CJ, Brennan and Toohey JJ, 267‑269 per Deane, Dawson, Gaudron and McHugh JJ; Nicholas v The Queen (1998) 193 CLR 173 at 207 [70] per Gaudron J; Abebe v The Commonwealth (1999) 197 CLR 510 at 555 [118] per Gaudron J.
[32]In re Judiciary and Navigation Acts (1921) 29 CLR 257 at 265 per Knox CJ, Gavan Duffy, Powers, Rich and Starke JJ; Fencott v Muller (1983) 152 CLR 570 at 603 per Mason, Murphy, Brennan and Deane JJ; Mellifont v Attorney-General (Q) (1991) 173 CLR 289 at 316‑317 per Brennan J; Abebe v The Commonwealth (1999) 197 CLR 510 at 555 [117]-[119] per Gaudron J, 570 [164] per Gummow and Hayne JJ, 585 [215] per Kirby J; cf 524 [24]-[25] per Gleeson CJ and McHugh J.
These statements suggest that the task of identification of the "matter" said to be the subject of the present litigation is to be approached as a tripartite inquiry: first, the identification of the subject-matter for determination in each of C22 and C6[33]; secondly, the identification of the right, duty or liability to be established in each proceeding[34]; thirdly, the identification of the controversy between the parties to C22 and C6 for the quelling of which the judicial power of the Commonwealth is invoked[35]. Whilst each of these inquiries may be pursued separately, all are related aspects of the basal question, "is there a 'matter' in the sense required by Ch III of the Constitution?" In our view, there is no such "matter", and this is so whether the moving party here is seen either as the Attorney-General or the ecclesiastical authorities.
[33]Huddart Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330 at 357.
[34]In re Judiciary and Navigation Acts (1921) 29 CLR 257 at 265; James v South Australia (1927) 40 CLR 1 at 40; Croome v Tasmania (1997) 191 CLR 119 at 124‑125.
[35]Fencott v Muller (1983) 152 CLR 570 at 608.
There is no controversy apparent between the applicants and the respondents, Sundberg J and Dr McBain. The latter has the protections against action against him by the State of Victoria of the declaration made in his favour, in particular par 3 thereof. But no relief by way of prohibition is sought against him. The learned judge has no interest in the matter; he has discharged the duty to exercise the judicial power of the Commonwealth in the proceeding which came before him and the orders have been entered. His Honour has acted within the jurisdiction conferred by par (b) of s 39B(1A) of the Judiciary Act and there has been no enlivening of the appellate processes of the Federal Court.
The subject-matter for determination in each proceeding is whether there is an error of law on the face of the record of the Federal Court, represented by the outcome of the proceeding before Sundberg J, and the purging of that record by administration of a remedy in the nature of certiorari. None of the applicants presents a claim for declaratory relief to reflect a particular view of the construction of the Commonwealth Act and the State Act and the operation of s 109 of the Constitution. Rather, the whole of the relief the applicants seek is directed to the outcome of the particular proceeding which was disposed of in the Federal Court.
This understanding assists the identification of the right, duty or liability which the applicants seek to establish in each proceeding based on s 76(i) of the Constitution. Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd[36] is authority that the means available to the Parliament under s 76(ii) of the Constitution to enforce by new remedies compliance with legislative norms of conduct are not limited by a requirement for reciprocity or mutuality of right and liability between plaintiff and defendant.
[36](2000) 200 CLR 591.
In Truth About Motorways, Gaudron J said[37]:
"Absent the availability of relief related to the wrong which the plaintiff alleges, no immediate right, duty or liability is established by the Court's determination. Similarly, if there is no available remedy, there is no administration of the relevant law. Thus, as Gleeson CJ and McHugh J pointed out in Abebe v The Commonwealth[38], '[i]f there is no legal remedy for a "wrong", there can be no "matter".'"
However, it would be to invert the reasoning in Truth About Motorways to say that, if there is no "wrong", nevertheless there is a "matter" so long as there is an available remedy.
[37](2000) 200 CLR 591 at 612 [49].
[38](1999) 197 CLR 510 at 527 [31].

More broadly, there is no general proposition respecting Ch III that the "immediate right, duty or liability to be established by the determination of the Court", spoken of in In re Judiciary and Navigation Acts[39], must be a right, duty or liability in which the opposing parties have correlative interests. Thus, the prosecutor of an offence against a law of the Commonwealth and the defendant do not have correlative interests. Nevertheless, the proceeding seeks to vindicate and enforce the duty or liability of the defendant to observe the criminal law of the Commonwealth.
[39](1921) 29 CLR 257 at 265.
It is here that the present applications founder. Where is the right, title, privilege or immunity under the Constitution which is asserted by the applicants? The jurisdiction of this Court in respect of each proceeding is said to be attracted by s 76(i) of the Constitution as implemented by s 30(a) of the Judiciary Act. In such a case, the right, duty or liability to be established in the proceeding is identified in the manner described by Gavan Duffy, Rich and Starke JJ in James v South Australia[40]. Their Honours said, in a passage adopted by Brennan CJ, Dawson and Toohey JJ in Croome v Tasmania[41]:
"Matters arising under the Constitution or involving its interpretation are those in which the right, title, privilege or immunity is claimed under that instrument, or matters which present necessarily and directly and not incidentally an issue upon its interpretation."
[40](1927) 40 CLR 1 at 40; cf as to s 76(ii) of the Constitution the judgment of this Court in LNC Industries Ltd v BMW (Australia) Ltd (1983) 151 CLR 575 at 581.
[41](1997) 191 CLR 119 at 126.
Where reliance is placed upon s 109 of the Constitution by a private litigant, the claim under the Constitution usually will be to a privilege or immunity from the requirement to observe the State law in question. The citizen is "entitled to know" whether that law is binding[42]. Croome v Tasmania[43] is a recent illustration. The litigation instituted by Dr McBain and disposed of by Sundberg J is another.
[42]University of Wollongong v Metwally (1984) 158 CLR 447 at 457‑458.
[43](1997) 191 CLR 119.
We turn to consider first the position of the ecclesiastical authorities, then that of the Attorney-General. The evidence is that in some dioceses the bishop is directly responsible for Roman Catholic hospitals, and in other dioceses the bishops are ultimately responsible for the conduct of agencies which care for women seeking to bear children, and provide adoption services and "natural family planning services" to married couples. However, neither the Bishops nor the Episcopal Conference seek to dispute the valid operation of the State law; they support the law and have no interest in relief from the obligation to observe its requirements, such as those in s 8.
The Bishops and the Episcopal Conference may have a sharp difference in opinion with those such as the interveners who favour the provision of treatment to persons in the position of Ms Meldrum and who advocate the removal of the restrictions imposed by s 8 of the State Act. The concern of the Bishops and the Episcopal Conference is that the decision of Sundberg J provides a precedent which would influence the outcome of future litigation in which they or others seek relief upholding the validity of s 8 and allied provisions of the State Act. Hence the subject-matter of this litigation is the purging, by order of this Court, of the record of the Federal Court.
However, those concerns and objectives of the ecclesiastical authorities do not represent a claim by them in this present litigation of a right, title, privilege or immunity under the Constitution; nor do they present, necessarily and directly rather than incidentally, an issue upon the interpretation of the Constitution. In short, the controversy between these parties and the respondents to these applications is not one which comprises a "matter" described in s 76(i) of the Constitution.
Reference has been made earlier in these reasons to authority in this Court that the Attorneys-General stand in a somewhat special position respecting matters which arise under the Constitution. The State of Victoria was a party to the proceeding in the Federal Court in which the Commonwealth Attorney might, by statute, have intervened or whose removal into this Court might have been obtained, again by statute. Where (on relation or otherwise) an Attorney initiates an action respecting validity, it usually has been against the Commonwealth or a State or States, as the case may be[44]. The result will be a declaration binding the other polity or polities and an effective exercise of judicial power. That is not the result where, as here, relief is sought, not against the State whose law is in question, but a federal judicial officer.
[44]See, for example, The Commonwealth v State of Queensland (1920) 29 CLR 1; Attorney-General (Vict) v The Commonwealth (1935) 52 CLR 533; Tasmania v Victoria (1935) 52 CLR 157; Attorney-General (Vict) v The Commonwealth (1962) 107 CLR 529; Attorney-General (Vict); Ex rel Black v The Commonwealth (1981) 146 CLR 559.
If the Attorney had intervened in the Federal Court proceeding or caused its removal into this Court, the Attorney may have been maintaining a "particular right, power, or immunity in which [he was] concerned"[45]. The decision in Mellifont v Attorney-General (Q)[46] provides an analogy. There, the Attorney-General appealed from answers to questions of law referred to the Queensland Court of Appeal by way of a procedure designed to secure a reversal of a ruling at trial and thereby secure a correct statement of the law, but "without exposing the accused to double jeopardy" and "without infringing the common law rule that the Crown cannot appeal against a verdict of acquittal"[47]. The decision of the Court of Criminal Appeal was held to involve the exercise of judicial power by that Court because the procedure was directed to correcting errors in a criminal trial. Thus, the decision fell within the words "judgments, decrees, orders" in s 73 of the Constitution and this Court had jurisdiction to entertain an appeal from it.
[45]Australian Railways Union v Victorian Railways Commissioners (1930) 44 CLR 319 at 331.
[46](1991) 173 CLR 289.
[47](1991) 173 CLR 289 at 305.
It also may be said that the Attorney would have been maintaining a particular right, power or immunity in which he was concerned if he had instituted a proceeding in which declaratory relief had been sought respecting the operation of s 109 of the Constitution upon the State Act. But even then it is not easy to see how this would be so where the relief sought by the Commonwealth Attorney would affirm the operation of a State law in the face of s 109. Normally it would be for the State Attorney-General to represent the interest of the public of that State in vindicating the laws of that State[48]. The "particular right" of each Attorney lies in the enlisting of the judicial power of the Commonwealth to ensure observance by the other polities of the requirements of the federal compact expressed in the Constitution.
[48]Attorney-General for NSW v Brewery Employés Union of NSW ("the Union Label Case") (1908) 6 CLR 469 at 491‑492, 498‑500, 520, 552‑553, 597‑599; The Commonwealth v State of Queensland (1920) 29 CLR 1 at 7, 11‑12; Attorney-General (Vict) v The Commonwealth (1935) 52 CLR 533 at 556; Attorney-General (Vict) v The Commonwealth (1945) 71 CLR 237 at 247‑248, 264, 266, 272‑273, 275‑276, 277.
However, in any event, the "very special practice" respecting Attorneys-General which Dixon J described in Australian Railways Union v Victorian Railways Commissioners[49] does not extend to the advancement of what the Executive Government considers to be the desirable interaction between particular State and federal laws, by the Attorney-General pursuing the course he has in this litigation. Here the Attorney (both as an intervener and on the relation of the Episcopal Conference) seeks to re‑open closed litigation between other parties and to purge the record of the Federal Court of an order which is at odds with an allegedly desirable state of constitutional affairs. The point may be expressed as a reflection of the limits of the judicial power of the Commonwealth or of the absence of any claim by the Attorney-General to a right, title, privilege or immunity under the Constitution which is necessary to give rise to a "matter" under s 76(i). Whether acting on relation or otherwise, the Attorney-General, consistently with Ch III, cannot have a roving commission to initiate litigation to disrupt settled outcomes in earlier cases, so as to rid the law reports of what are considered unsatisfactory decisions respecting constitutional law.
[49](1930) 44 CLR 319 at 331.
There is also in this litigation the issue respecting the construction of s 22 of the Commonwealth Act in the light of the limitation in s 9. As already mentioned, this does not give rise to a "matter" under s 76(i). This is because the interpretation of one or more provisions of the Constitution (in particular the external affairs power) is not "essential or relevant" to the question of statutory construction[50].
[50]Attorney-General (NSW) v Commonwealth Savings Bank (1986) 160 CLR 315 at 326‑328.
Observations by Griffith CJ in the Union Label Case remain pertinent after a century. The Chief Justice said[51]:
"The first condition of any litigation in a Court of Justice is that there should be a competent plaintiff, ie, a person who has a direct material interest in the determination of the question sought to be decided. The Court will not decide abstract questions, nor will it decide any question except when raised by some person entitled by reason of his interest to claim a decision. This doctrine should certainly not be relaxed for the purpose of bringing in question the validity of Statutes passed either by the Commonwealth Parliament or by a State legislature."
[51](1908) 6 CLR 469 at 491.
For these reasons, taken together, the conclusion should be reached that each application fails. The extension of time sought in C6 and the motion for joinder of the Attorney-General in C22 should be refused as to grant leave would be to encourage a futility. The application C22 should be dismissed as incompetent. The applicants together (including the Attorney-General) should bear the costs of Dr McBain. The joinder of the Attorney in the adverse costs order reflects the attenuation of the litigation by the particular submissions made on his behalf.
We should add that, even if either or both applications had generated a "matter" to found the exercise of original jurisdiction by this Court, we would not regard either application as an appropriate occasion for the exercise of the power conferred by s 32 of the Judiciary Act to grant a remedy in the nature of certiorari. We agree generally with what is said by Hayne J under the heading in his reasons, "Certiorari and discretion".
McHUGH J. Involved in these applications for writs of certiorari are important questions. Do the applicants in Matter No C22 of 2000 have standing to bring the application? Do the proceedings in Matter No C22 of 2000 and Matter No C6 of 2001 constitute a "matter" within the meaning of ss 75 and 76 of the Constitution? Will the writ of certiorari issue to the Federal Court for non-jurisdictional error of law? Does Ch III of the Constitution permit the Attorney-General of the Commonwealth to intervene in proceedings after he has given his fiat to a private party to commence those proceedings in his name? Did Sundberg J err in law in the Federal Court when he declared that certain sections of the Infertility Treatment Act 1995 (Vic) are inconsistent with s 22 of the Sex Discrimination Act 1984 (Cth) and, to the extent of that inconsistency, rendered invalid by s 109 of the Constitution?
In the view that I take of these two cases, however, it is unnecessary to determine all these questions. I think that the applicants are right in contending that both proceedings give rise to a "matter" within the meaning of Ch III of the Constitution. But even if the remaining questions were answered favourably to the applicants, the proper exercise of the Court's discretion requires that the applications for the issue of certiorari to quash the orders of the Federal Court should be refused.
The history of the applications and the relevant legislation are set out in other judgments. I need not repeat them.
The applicants accept that the Federal Court neither exceeded its jurisdiction nor lacked the jurisdiction to make the order that it did. No doubt because that is so, they do not seek the issue of any of the writs mentioned in s 75(v) of the Constitution – mandamus, prohibition or injunction – even though the order made by Sundberg J was made by a Commonwealth officer within the meaning of s 75(v). Instead, the applicants seek the issue of a writ of certiorari from this Court to quash the order made by his Honour in the Federal Court on 28 July 2000. They contend that this Court has original jurisdiction to issue certiorari because their claims for certiorari give rise to a matter arising under the Constitution or involving its interpretation and because s 32 of the Judiciary Act 1903 (Cth) authorises the issue of that writ. That section declares that, in proceedings in the original jurisdiction, the Court "shall grant … all such remedies whatsoever as any of the parties thereto are entitled to in respect of any legal or equitable claim properly brought forward by them". Section 32 goes on to say that the Court shall do so "so that as far as possible all matters in controversy between the parties … may be completely and finally determined". As the judgment of Hayne J shows, decisions of federal courts – including the Supreme Court – in the United States have held that s 14 of the Judiciary Act 1789 (the US equivalent of s 32) authorises the writ of certiorari in appropriate cases[52]. Similarly, this Court should hold that the broad grant of power conferred by s 32 authorises the issue of certiorari in appropriate cases.
[52]Reasons of Hayne J at [270].
If the applicants are right in contending that their claims for the issue of a writ of certiorari give rise to a "matter", they are right in contending that the "matter" arises under the Constitution or involves its interpretation. On its face, the order of the Federal Court arises under the Constitution. In terms, it declares that s 8(1) and other sections of the Infertility Treatment Act are inconsistent with s 22 of the Sex Discrimination Act "by reason of s 109 of the Constitution of the Commonwealth of Australia."
Matter
The history of the writ of certiorari shows that the applicants are right in contending that there is a "matter" within the meaning of Ch III of the Constitution. Immediately before Federation, the writ of certiorari meant the process by which the Queen's Bench Division in England and the Supreme Courts of the Colonies required the judges or officers of inferior jurisdictions to certify or send proceedings before them to the Queen's Bench or Supreme Courts. The proceedings were removed "for the purpose of examining into the legality of such proceedings, or for giving fuller or more satisfactory effect to them than could be done by the Court below"[53]. If the lower court or tribunal had exceeded its jurisdiction or failed to exercise it or if its record disclosed an error of law on its face, then, subject to the effect of any statute, the applicant could apply to the Queen's Bench or Supreme Court to quash the record of the proceedings. Under the old procedure, removal and quashing were two distinct steps although in modern times both steps are usually dealt with on the application for an order absolute for certiorari[54]. In some cases, quashing the order certified by the record would be the only relief required. In other cases, quashing the order would often be a condition precedent for the issue of other processes. For example, if the prosecutor wished to have a decision set aside and the proceedings re-heard, it would be necessary to use certiorari to quash the decision before mandamus could issue. Many of the technicalities concerning the issue of certiorari have disappeared. But the basic principles concerning its issue have remained constant, although arguably the reach of the writ is greater today than it was perceived to be when the Constitution and the Judiciary Act were enacted.
[53]Short and Mellor, Crown Practice, (1890) at 89.
[54]R v A Judge of District Courts and Shelley; Ex parte Attorney-General [1991] 1 Qd R 170 at 176.
When a person claims that the writ of certiorari should issue to quash an order or decision of a lower court, tribunal or public authority, the claim gives rise to a "matter" within the meaning of Ch III of the Constitution. The claim asserts that the record of the court, embodying the order, is defective and that the order is of no force and effect. It gives rise to a controversy – concerning "some immediate right, duty or liability to be established by the determination of the Court"[55] – with the maker of, and any party supporting, the order or decision. If the order or decision is that of a court, it is irrelevant that it may have settled a controversy between parties who are strangers to the applicant for certiorari. As Isaacs and Rich JJ pointed out in Waterside Workers' Federation of Australia v Gilchrist, Watt & Sanderson Ltd[56], "[t]he mere circumstance that a Court is functus officio is no bar to certiorari where all other conditions for its applicability exist." A claim for certiorari gives rise to a new and different controversy from that involved in the proceedings that gave rise to the order. It gives rise to a separate "matter". The contrary view could only be maintained if the dissenting view in Abebe v The Commonwealth[57] had prevailed.
[55]In re Judiciary and Navigation Acts (1921) 29 CLR 257 at 265.
[56](1924) 34 CLR 482 at 516.
[57](1999) 197 CLR 510.
Determining the claim for certiorari does not always determine the underlying rights of the parties to the order, although sometimes it may do so. The determination may show, for example, that the Court had no jurisdiction to make the order because a party was denied natural justice or that the record contains an error of law. If so, certiorari may issue. But its issue will not affect the underlying rights, duties and liabilities of the parties to the order.
A stranger to the proceedings that gives rise to the relevant record may apply for certiorari to quash an order or judgment contained in the record. The judgment of Blackburn J in R v Justices of Surrey[58] is frequently cited[59] for this proposition, although earlier cases had also recognised the right of a stranger to obtain certiorari. The rule that a stranger to the proceedings can apply for certiorari to quash an order, made without jurisdiction, has the same historical basis as the rule that a stranger can apply for prohibition to quash such an order[60]. Permitting strangers to apply for certiorari helps to ensure that "the prescribed order of the administration of justice" is not disobeyed. In Worthington v Jeffries[61] in a passage cited in this Court[62], Brett J said:
"[T]he ground of decision, in considering whether prohibition is or is not to be granted, is not whether the individual suitor has or has not suffered damage, but is, whether the royal prerogative has been encroached upon by reason of the prescribed order of administration of justice having been disobeyed. If this were not so, it seems difficult to understand why a stranger may interfere at all."
[58](1870) LR 5 QB 466.
[59]cf Waterside Workers' Federation of Australia v Gilchrist, Watt & Sanderson Ltd (1924) 34 CLR 482 at 517.
[60]R v Justices of Surrey (1870) LR 5 QB 466 at 472-473.
[61](1875) LR 10 CP 379 at 382.
[62]R v Federal Court of Australia; Ex parte WA National Football League (1979) 143 CLR 190 at 201; Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund (1998) 194 CLR 247 at 263 [40].

H W R Wade has suggested[297] that:
"When in the seventeenth century the remedy of certiorari was first used to control statutory powers, its primary object was to call up the record of the proceedings into the Court of King's Bench; and if the record displayed error, the decision was quashed. What is now an exception was then a primary rule, and it was not founded on any idea of jurisdiction or ultra vires. But if the applicant wanted to go outside the record, and bring other evidence to show some abuse of the power, the court would quash only where an excess of jurisdiction could be shown." (footnote omitted)
Whether or not error on the face of the record had such a central place in the development of the writ in England (and Henderson's work suggests that it may not be so) by the latter half of the nineteenth century, and until the decision of the English Court of Appeal in R v Northumberland Compensation Appeal Tribunal; Ex parte Shaw[298], certiorari was understood to go primarily, if not exclusively, in cases of want or excess of jurisdiction[299]. Even since Shaw's Case, granting relief for error on the face of the record has been seen as anomalous.
[297]Administrative Law, 6th ed (1988) at 304.
[298][1952] 1 KB 338.
[299]Racecourse Betting Control Board v Secretary for Air [1944] Ch 114. But cf Overseers of the Poor of Walsall v London and North Western Railway Co (1878) 4 App Cas 30 at 39 per Earl Cairns LC.
The anomaly lies in the distinction (not always easy to draw) between jurisdictional and non‑jurisdictional error. In the former kind of case, public power is exercised unlawfully, in the latter it is exercised mistakenly but lawfully. The constitutional writs and, save for certiorari to quash for error on the face of the record, all other prerogative and like remedies, are concerned with the former, not the latter. And if error of law can ground relief, why not error of fact? To allow certiorari as a remedy for the correction of some but not all errors is, therefore, anomalous. To do so in cases where there is a general power of appeal for the correction of all errors may be thought not just anomalous but unnecessary. It is, then, not surprising that the principles governing the grant of certiorari in the United States have developed as they have.
It is apparent from what has been said about the development of the law in the United States that, in considering the place to be given to the writ of certiorari, account must be taken of both s 73 of the Constitution with its provisions for the appellate jurisdiction of this Court and s 75 (particularly s 75(v)) with its provisions for original jurisdiction. To grant certiorari to quash the orders that were made in this matter and to grant that relief at the suit of persons not parties to the proceedings in which the orders were made would, of course, disturb the resolution of the controversy between the parties that was brought to an end by the orders made by Sundberg J. That will always be so whenever certiorari issues. Where the complaint is that an officer of the Commonwealth, judicial or other, has exceeded jurisdiction or has refused to exercise jurisdiction, the original jurisdiction of the Court can be invoked and constitutional writs ordered to prohibit action in excess of jurisdiction or compel its exercise. For the reasons given earlier, certiorari may go in aid of those writs.
But where, as here, certiorari is claimed on the basis that there was an error of law by a federal superior court within jurisdiction, but apparent on the face of its record, it is possible to contend that the application of federal judicial power in such a case is primarily, perhaps ultimately, governed by s 73 of the Constitution concerning the rights of parties to appeal to this Court. If that is so, the exercise of judicial power for the correction of errors by this Court would, as between the parties to the proceeding, be subject to exception and regulation as mentioned in s 73. Prerogative relief will therefore usually be refused in such cases[300].
[300]R v Federal Court of Australia; Ex parte Pilkington ACI (Operations) Pty Ltd (1978) 142 CLR 113 at 127 per Mason J; R v Federal Court of Australia; Ex parte WA National Football League (1979) 143 CLR 190 at 225‑226 per Mason J; R v Gray; Ex parte Marsh (1985) 157 CLR 351 at 375‑376 per Mason J; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 654‑655 [139] per Gummow J.
It is consistent with that position to deny certiorari to a person not party to the proceeding in which the impugned order was made, at least where processes of appeal, ultimately to this Court, could be, but have not been, engaged by a party to the proceeding to correct the alleged error. The decision to deny certiorari in this kind of case could be reached at any of several different stages of the inquiry. Thus the decision to deny certiorari to a federal superior court, for error on the face of its record, could be based in a conclusion that the anomaly of the availability of the remedy for error on the face of the record of inferior courts should not be extended. Or, if the application is by a third party other than an Attorney‑General, the denial of certiorari could be based in a decision about the standing of the applicant. Or, as these reasons later seek to show, the decision could be founded in the exercise against the applicants of the discretion to grant or withhold the remedy. But in the present cases, for the reasons given earlier, the basis for dismissing each application is more fundamental: there is, in neither case, a "matter". Nonetheless, it is convenient to add something about the question of discretion.
Certiorari and discretion
The historical matters that I have mentioned earlier bear not only on the question of power to order certiorari for error on the face of the record of a federal superior court, but also on whether, the grant of certiorari being discretionary, such an order should be made.
If the question were one for the exercise of discretion, I have no doubt that the discretion should be exercised against the making of an order in the present matters, whether at the suit of the Episcopal Conference or at the suit of the Attorney‑General. In the case of the Attorney‑General, there is no reason to extend the time for making application for certiorari. The Attorney‑General had a right to be made a party to the proceedings, the result of which it is now sought to disturb. Further, at any time up to the making of orders, the Attorney‑General could have applied for removal of the cause then pending in the Federal Court into this Court pursuant to s 40 of the Judiciary Act. No such application was made. In those circumstances, the Attorney‑General not having chosen to take either of the steps available to him as of right to bring the matter before this Court, he should not now have an extension of time within which to apply for certiorari.
As for the Episcopal Conference, it may have had no right to be joined as a party in the proceedings in the Federal Court, but it did not pursue the application of which it had given notice for an order that it be joined. Whether that would be reason enough to deny the Episcopal Conference relief is a question I need not consider. Having chosen not to pursue the application to be made a party, the Episcopal Conference can be in no better position to seek the relief it now seeks than it would have been had it made and succeeded in an application for joinder. If certiorari is available to quash an order of a federal superior court made within jurisdiction for error on the face of the record, that relief would ordinarily be refused to a party to the proceeding who had a right to appeal against the order which it is sought to quash. Certiorari would be refused because of the availability of the alternative remedy.
A person not party to the proceedings giving rise to the impugned order has no right of appeal and it therefore has no alternative remedy to certiorari. But what is the interest which it has in having the order quashed? In cases in which there has been some excess or want of jurisdiction the interest which the applicant can be seen to seek to vindicate is an interest in the prevention of action beyond power. Moreover, leaving aside decisions of superior courts of record, the act of a public authority that is beyond its power is, as a general rule, of no legal effect[301]. But in the case of superior courts of record, other considerations intrude. Orders of a superior court, even if erroneous, bind the parties to them until set aside[302].
[301]H W R Wade, "Unlawful Administrative Action: Void or Voidable? Part I", (1967) 83 Law Quarterly Review 499 at 507.
[302]Re Macks; Ex parte Saint (2000) 204 CLR 158 at 178 [23] per Gleeson CJ, 185‑187 [53]-[57] per Gaudron J, 235-236 [216] per Gummow J, 274-275 [328]‑[329] per Hayne and Callinan JJ.
The only interest of the Episcopal Conference in the orders made by Sundberg J is an interest in the reasoning which led to their making as providing a precedent in the decision of other cases. The orders themselves are not of moment; the reasons are thought to be. Where the parties to the proceeding have chosen not to challenge its outcome, certiorari to quash the orders should not go at the suit of a person who has no interest greater than that asserted by the Episcopal Conference in this case. To grant the relief would subvert the orderly administration of justice. If the application by the Episcopal Conference gives rise to a "matter" and there is power to grant certiorari, it should be refused in this case. Accordingly, the questions of validity of the Infertility Treatment Act which were explored in argument should neither be considered nor answered in the present proceedings.
The Attorney's application to intervene in the relator proceedings
The Attorney‑General of the Commonwealth sought to intervene in both proceedings and to make submissions which, in part, were contrary to those advanced in his name in the application made at the relation of the Episcopal Conference. Although it was necessary and convenient to hear the submissions which the Attorney‑General made as intervener against those which were advanced on his behalf as applicant, that necessity and convenience stemmed entirely from the fact that the Attorney was entitled to be heard on the application brought by the Episcopal Conference. It was not open to an Attorney who had granted a fiat for the institution of a proceeding thereafter to intervene in that proceeding or to make submissions either in support of or opposing the case advanced in the name of the Attorney as plaintiff or applicant in that proceeding.
It is essential to recognise that, in a relator action, it is the Attorney who is plaintiff or applicant. A relator is not a party unless separately joined as co‑plaintiff or co‑applicant. The Attorney has complete charge of the litigation at all times. So much has long been well established[303]. A decision to grant or withhold a fiat gives rise to no justiciable issue[304] and, it would follow, neither would a decision by the Attorney to withdraw a fiat that had previously been granted. It is because the Attorney has complete control of the proceeding, and can terminate it at any time, that entire responsibility for its conduct rests with the Attorney. Although it is said that by the fiat the Attorney "lends standing" to the relator, such metaphors must not obscure the fact that it is and remains the Attorney's proceeding. Nor may such metaphors be allowed to suggest that it is the relators who have standing in the suit if, without the fiat, they do not. If the rules about standing are to be changed (and that is an altogether separate question recently considered in Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd[305]) the nature and extent of the change to be made should be considered directly. Change is not to be made indirectly, by giving to the relators in an action brought in the name of the Attorney a role greater than hitherto they have been afforded. To do so would deflect the proper attribution of responsibility for the decisions to institute and maintain the proceeding and for the decisions that are made about its conduct.
[303]Attorney‑General v The Ironmongers' Company (1840) 2 Beav 313 [48 ER 1201]; Attorney-General v Haberdashers' Company (1852) 15 Beav 397 [51 ER 591]. See also Attorney‑General v Fellows (1820) 1 Jac & W 254 [37 ER 372]; Attorney‑General v Barker (1838) 4 My & Cr 262 [41 ER 103]; Attorney‑General v Brettingham (1840) 3 Beav 91 [49 ER 35]; Attorney‑General, at the relation of W W and E P v Wyggeston's Hospital (1852) 16 Beav 313 [51 ER 799]; Attorney‑General v The Mayor, Aldermen and Burgesses of Newark-Upon-Trent (1842) 1 Hare 395 [66 ER 1086]; Attorney‑General v Governors of the Sherborne Grammar School (1854) 18 Beav 256 [52 ER 101]; Attorney‑General for Ireland (Humphreys) v Erasmus Smith's Schools (1910) 1 IR 325.
[304]Attorney‑General v London County Council [1901] 1 Ch 781; and, on appeal, London County Council v Attorney‑General [1902] AC 165.
[305](1998) 194 CLR 247.
No doubt account must be taken of the fact that the rules about relator actions were developed in cases about the administration of charities and that the present litigation is about the proper interpretation of the Constitution. Account must also be taken of what has happened in earlier relator litigation in this Court, notably in Attorney‑General (Cth); Ex rel McKinlay v The Commonwealth[306] and Attorney‑General (Vict); Ex rel Black v The Commonwealth[307]. In the former case, the Commonwealth and certain officers of the Commonwealth were defendants in one of three proceedings in which demurrers were heard together. The Attorney‑General of the Commonwealth did not seek to appear on both sides of the record.
[306](1975) 135 CLR 1.
[307](1981) 146 CLR 559.
As was pointed out in argument, when the Attorney‑General of the Commonwealth intervenes pursuant to s 78A of the Judiciary Act the intervention is made "on behalf of the Commonwealth". This was said to suggest, even require, that the Attorney‑General may appear to represent the interests of the Commonwealth in a relator action brought by the Attorney and that the result would not be materially different from what happened in McKinlay when the Attorney was plaintiff and the Commonwealth a defendant. A distinction is to be made between the Attorney‑General of the Commonwealth and the Commonwealth. Nevertheless, account must be taken of s 78A(3) and its provision that where the Attorney intervenes "then, for the purposes of the institution and prosecution of an appeal from a judgment given in the proceedings, the Attorney‑General of the Commonwealth … shall be taken to be a party to the proceedings". At least for that purpose, it is the Attorney who is a party, not the Commonwealth. In those circumstances, s 78A is not to be construed as permitting intervention by an Attorney‑General whether of the Commonwealth or a State against the interests of that Attorney‑General as plaintiff or applicant. To do so would permit the Attorney to appear on both sides of the record. More fundamentally, it would reveal that there was in fact no controversy between those who were parties to the suit, only a controversy between the relators, who are not parties, and the Attorney. There would be no "matter".
Nor does what happened in Black require the contrary conclusion. True it is the Solicitor‑General for Victoria announced an appearance for the Attorney‑General for that State (and the Attorneys‑General for other States) as interveners in the proceeding[308]. There was argument about the standing of the Attorney‑General for the State of Victoria as plaintiff in the action to make some of the claims that were made[309]. There was, however, no argument advanced about, and no consideration given to whether the intervention on behalf of the Attorney for Victoria was soundly based. That is hardly surprising when the same counsel appeared to intervene for the Attorneys for other States.
[308](1981) 146 CLR 559 at 573.
[309](1981) 146 CLR 559 at 564, 568-569, 571-574.
I would therefore refuse the application by the Attorney‑General of the Commonwealth to intervene in the application brought in his name. He intervened in the other application as of right.
Conclusion
The application by the Episcopal Conference and the application by the Attorney‑General of the Commonwealth should each be dismissed, in each case with costs.
CALLINAN J. Subject to two reservations and one addition I agree with the reasons for judgment and orders proposed by McHugh J.
My first reservation is as to the correctness of the highly questionable assumption which was made by all who presented arguments in this case, that the Sex Discrimination Act 1984 (Cth) was a law with respect to external affairs.
My second reservation relates to another matter which was not argued, that the State of Victoria, which is to say the Executive of that State, may deliberately and selectively abstain from enforcing[310] an enactment, indeed a relatively recent enactment of the legislature of that State, whether it has or has not the capacity to persuade the legislature to change or repeal that enactment by a subsequent enactment: and whether in those circumstances some other person might be entitled to do so.
[310]cf Gouriet v Union of Post Office Workers [1978] AC 435; Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591 at 668-670 [206]-[211], 671 [215].
In addition, I wish to make some observations about the meaning of the word "matter". As long ago as 1921, its presence in Ch III of the Constitution gave rise to conflicting views whether this Court could provide advisory opinions[311]. It has also given rise to differing opinions as to the Court's jurisdiction to hear appeals on questions of law in criminal cases[312]; and whether the Parliament may or may not confer jurisdiction on a Federal Court over part of a "matter"[313]. More recently, this Court has been required to consider the question whether the Parliament can confer standing on persons who are not directly affected by a legal wrong[314]. For present purposes it is sufficient to point out that in Mellifont v Attorney-General (Q)[315], an "appeal" in a criminal case in which the decision of the Court of Criminal Appeal (and of this Court) would, in the circumstances play no part in the subsequent determination of the charge in the indictment, this Court (Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ, Brennan J dissenting) held that an Attorney-General's reference under s 669A of The Criminal Code (Q) related to the subject matter of the legal proceedings at first instance, and was not therefore divorced from the ordinary administration of the law[316]. Mellifont may therefore provide a basis for a broad view of what is a "matter" and that perhaps, the absence of an "immediate" right, duty, privilege or liability may not of itself always be decisive.
[311]In re Judiciary and Navigation Acts (1921) 29 CLR 257.
[312]cf Saffron v The Queen (1953) 88 CLR 523; Mellifont v Attorney-General (Q) (1991) 173 CLR 289.
[313]Abebe v Commonwealth (1999) 197 CLR 510.
[314]Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591.
[315](1991) 173 CLR 289.
[316](1991) 173 CLR 289 at 305 per Mason CJ, Deane, Dawson, Gaudron and McHugh JJ.
Subject to what I have said I agree with the reasons and orders proposed by McHugh J.