Ausn Catholic Bishops Conference & Anor, Ex parte - Re Sundberg & Anor C22/2000 [2001] HCATrans 412 (6 September 2001)

IN THE HIGH COURT OF AUSTRALIA

Registry No C22 of 2000

In the matter of -

An application for Writs of Prohibition Certiorari and Mandamus against THE HONOURABLE JUSTICE ROSS ALAN SUNDBERG, a Justice of the Federal Court of Australia

First Respondent

DR JOHN McBAIN

Second Respondent

Ex parte -

AUSTRALIAN CATHOLIC BISHOPS CONFERENCE and the AUSTRALIAN EPISCOPAL CONFERENCE OF THE ROMAN CATHOLIC CHURCH

Applicants/Prosecutors

Office of the Registry No C6 of 2001

In the matter of -

An application for Writs of Prohibition Certiorari and Mandamus against THE HONOURABLE JUSTICE ROSS ALAN SUNDBERG, a Justice of the Federal Court of Australia

First Respondent

DR JOHN McBAIN

Second Respondent

Ex parte -

THE ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA AT THE RELATION OF THE AUSTRALIAN EPISCOPAL CONFERENCE OF THE ROMAN CATHOLIC CHURCH

Applicants/Prosecutors

GLEESON CJ

GAUDRON J

McHUGH J

GUMMOW J

KIRBY J

HAYNE J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 6 SEPTEMBER 2001, AT 10.20 AM

(Continued from 5/9/01)

Copyright in the High Court of Australia

__________________

GLEESON CJ: Yes, Mr Jackson.

MR JACKSON: Thank you, your Honours. May I conclude my submissions concerning Dr McBain's position and the application for his removal from the proceedings by saying these things. First of all, Dr McBain instituted the proceedings in the Federal Court. He had the benefit of the orders in the Federal Court, indeed, his then counsel urged their making.

We have provided to the Court the written submissions that were before the judge in the Federal Court and your Honours will see at the conclusion of the written submissions on behalf of Dr McBain that the orders that were there sought vary only in form from those made by the primary judge. In our submission, there could not be doubt about the propriety of his joinder in proceedings for certiorari, why, in our submission, should he be excused from the proceedings? As to costs, we do not seek costs from him but he does seek to maintain the orders. We submit we should not have to pay for him as well.

Could I move then to the questions arising under sections 22 and 32 of the Sex Discrimination Act. It is clear, of course, that by reason of sections 9(4) and 9(10) of the Sex Discrimination Act section 22 has to be read so that it is conformity with the Convention. I say section 22 because sections 9(4) and 9(10) are dealing with the proscribed provisions of which section 22, but not section 32, is one. That is, in a sense, a trivial point but it does have a significance in the sense that it shows that even when section 22 has the relatively narrow application contemplated by section 9(10), section 32 yet applies.

If one turns to section 32 - and may I take your Honours to that now - the thing that is clear about it, in our submission, is that it does apply to conduct which is contemplated by section 22. If one looks at the coincidence of words used in the two provisions, section 32, as your Honours will see, refers to the provision of services, and if one goes to the provisions of Divisions 1 and 2 which deal with provisions of services, quintessentially the relevant provision, or a relevant provision, is section 22 because that is the very thing it says and your Honours will see in section 22 the use of the words "person who . . . provides goods or services". Your Honours, one sees the coincidence of the wording.

Your Honours, if one goes then to section 22(1) to see what are the services being provided by the person first named in the provision, one looks at the circumstances and looks at those services, and the grammar of the provision is that it applies to "refusing to provide the other person" - as your Honours will see from 22(1)(a) - with those services. And so one looks, in our submission, to see what is the service which there is a refusal to provide, and it is the nature of that service - and asked: is the nature of that service such that it can only be provided to members of one sex? Your Honours have been to Dr McBain's affidavit, and I would refer particularly to paragraph 9 at page 26. But it is apparent, in our submission, that the service of which he is speaking there is one which, of its nature, of its type - whatever synonym, whatever concept one seeks to apply - is one which can only be provided to persons of one sex, namely, women. The Parliament might have made fuller - - -

GAUDRON J: If you read down section 22 to apply only to discrimination against women on the ground of sex, perhaps pregnancy or potential pregnancy as well - I do not think you would dispute that falls within the terms of discrimination against sex - why would you not then read section 32 as applying to services that can only be provided to a man, in that context?

MR JACKSON: Your Honour, because what section 32 is doing is to take out of the operation of the Act "services the nature of which" to pick up the words of the section, "is such that they can only be provided to persons of one sex". It does not say which - - -

GAUDRON J: No, but if you read it down that way and if your comparator, as it were, for the purposes of the Convention, is the male population, one would have thought that having read it down in that way the only way in which section 32 could operate would be in respect to services available only to men.

MR JACKSON: With respect, your Honour, no, because the Act is not speaking of, in the operation provided for by section 9(10), discrimination against men.

GAUDRON J: No, I know, but the Convention is - one has to give meaning to this Convention, the purpose of which is to eliminate discrimination against women and, on your submission, that takes out marital status, as I understand it. The only discrimination that might be thought to operate would be services available only to men, which women cannot access.

MR JACKSON: Your Honour, the curious thing, with respect, in a provision like section 32 which is phrased in a way that says:

Nothing in Division 1 or 2 applies to or in relation to the provision of services, et cetera.

Your Honour, having said that, some of the services in respect of which there may be discrimination, are ones that can be provided to one sex or to both.

GAUDRON J: But can they be the subject of discrimination on the ground of sex? It seems to me you have to look to the totality of your argument based on sections 9(10), 22 and 32. Could there be any discrimination? Could 32 have any meaningful operation in the context of discrimination on the grounds of sex if it is intended to relate to services that are only available to women?

MR JACKSON: Yes, your Honour, it can. It is a provision which is declamatory and declaratory. It is saying that if there be some doubt about it, then nothing in Divisions 1 or 2 applies to cases of that kind. There are many services that are commonly provided to persons only of one sex but may well be available to be provided to both. If one takes, for example, something that I find as the years go by I use less and less, going to a barber, for example, many barbers - - -

GAUDRON J: We would not have noticed, Mr Jackson.

MR JACKSON: I am unchanged for present purposes but changed at other times. Could I just say in relation to that, however, most barber shops are ones that only men frequent. Women may want to go to them, but section 32 would not be a provision that would take male barber shops out of the operation of another provision of the Act.

McHUGH J: Male barber shops would not be caught by this legislation, would they? It would be outside the Convention and it is not within any of the others. But there is no doubt that 22 can apply to discrimination against males because the Act applies, not only in Convention terms, but also in such things as banking, insurance, trade and commerce, and so on.

MR JACKSON: Or a barber shop run by a company.

McHUGH J: Yes.

MR JACKSON: So, your Honour, it can apply. Your Honours, one sees also, if one looks at section 31, a particular reference to "Nothing in Division 1 or 2" rendering it "unlawful for a person to discriminate against a man", et cetera, in various circumstances. But, in our submission, there is nothing to say that section 32 should not be given its ordinary meaning. Your Honours, could I come then, next, to the question of certiorari and, in particular, to the observations of Justice Deane in Reg v Gray; Ex parte Marsh [1985] HCA 67; 157 CLR 351.

GUMMOW J: Mr Jackson, there is a four-page document floating here headed "Applicants'/Prosecutors' Summary of Argument".

MR JACKSON: Your Honour, I was going to come to that. What it is, your Honour, is it relates to a submission that was made by my learned friend, Mr Maxwell, yesterday, and that was that the question of section 76(i) had not been raised in the case until a relatively late point. All we were seeking to demonstrate is that when the matter first came before Justice Callinan, the first time it came before the Court, that section 76(i) was then adverted to. Your Honour, could I say - - -

GUMMOW J: That is the date of this document, is it?

MR JACKSON: Yes.

GUMMOW J: Thank you.

MR JACKSON: They were written submissions handed to his Honour. Now, your Honour, I have spoken to my learned friend, Mr Maxwell, about it and he was not aware of the existence of that. Your Honour, I do not want to suggest that in his saying what he said about it, there was anything other than complete bona fides.

GUMMOW J: Thank you.

MR JACKSON: Your Honours, I want to take your Honours to Reg v Gray; Ex parte Marsh. The essence of the various dicta of Justice Deane there seems to be, in our submission, that if Parliament declares that a court is a superior court of record, then that has the consequence that certiorari will not be available.

Your Honours will see his references to "superior court of record" in a number of places, but one sees it, for example, at page 389 discussed by his Honour particularly at the top of the page and so on. But, your Honours, when one goes to examine the theory as put by his Honour that because, take this case, the Federal Court is a superior court of record, certiorari will not lie. In our submission, the theory is one that, in a sense, is more Swiss cheese than cheddar, as it were, and one sees that for a couple of reasons: the first is that Justice Deane's own reasons do not come without qualifications. Your Honours can see those qualifications set out at the bottom of page 386 and the top of page 387. Your Honours will see in the passage commencing about four lines from the bottom of the page that his Honour says:

While the fact that a court is a superior court of record does not preclude prohibition being directed to it to prevent it from transgressing the limits of its jurisdiction, its status as such a court is prima facie inconsistent with -

and your Honours have seen the rest of that sentence. But his Honour goes on to say, at page 387, that there are three matters which might bring about qualifications and those matters are that the status of a superior court might be "modified" by statute or "by the Constitution" and then there might be the position that there could be "the removal of its proceedings into another court in a particular category of case", which might be a qualification to the notion. He refers, your Honours, to the fact that "Special considerations" might be involved in cases where the matter was "remitted by this Court" or where the matter was capable of being removed to this Court and he went on to say that there was nothing in the Constitution or in any Act of Parliament which conferred on this Court any "original jurisdiction" to order writs of certiorari directed to another superior court of record.

Your Honours, if I could deal with the last of those things. In our submission, section 76(i) and section 30(a) of the Judiciary Act do give original jurisdiction to this Court in matters arising under or involving the interpretation of the Constitution and sections 31, 32 and 33 and Order 55 made under the Judiciary Act empower the Court to issue a writ of certiorari in its original jurisdiction.

Your Honours, the second thing is, if one takes up the points made by Justice Deane, that if a constitutional issue arises in a matter it may be removed under section 40 of the Judiciary Act to the Court. His Honour's reasons, although with respect to his Honour somewhat Delphically expressed on this point, do seem to suggest that if there is the possibility of removal then it may be an appropriate case for certiorari. Now, his Honour in that case did not address section 76(i). Justice Dawson did and your Honours will see that at page 396.

Your Honours will see his reference to Reg v Cook; Ex parte Twigg about a third of the way down the page and then your Honours will see in the paragraph after the first quotation that his Honour said:

The interpretation of the Constitution was not, however, involved and no reference appears to have been made to the status accorded to the Family Court -

So, your Honours will see that he adverted to the fact negatively, as it were, that the case had not involved the interpretation of the Constitution. Your Honours will see another reference at the bottom of that page. Now, the Court has not adopted Justice Deane's reasoning so far as concerns the Federal Court and certiorari, speaking generally, for the moment, and it has continued to issue those writs to that court and to the Family Court most - perhaps not most recently but recently, at least, in the Victorian Legal Aid Case and in Re Macks; Ex parte Saint.

Now, it is quite clear, in our submission, that the Court may grant certiorari to the Federal Court on jurisdictional grounds and that does not sit at all well, with respect, with Justice Deane's basic theory because the starting point of his observations was certiorari on jurisdictional grounds as well as on any other ground. The next feature in relation to Justice Deane's approach, in our submission, is this, that if one tries to look at the position and looks at it from the point of view of litigation in this Court, it is very difficult, in our submission, to find something inherent in the description of a court as a superior court of record that renders asserted errors of law as matters outside section 75.

If one compares the procedure with the procedure of appeal, in relation to that an appeal sets aside a decision for error of law as well as for other forms of error and the possibility of quashing is often referred to as one of the modes by which decisions of superior courts are set aside. Could I, in that regard, give your Honours a reference to what your Honour Justice Gummow said in Re Macks 75 ALJR 245, paragraph [216]. Your Honour in that paragraph said:

the power in s 51(xxxix) does empower the Parliament to endow the orders of a federal court with the characteristics of those of a superior court of record as understood at common law, to the extent that these characteristics are consistent with the Constitution, particularly Ch III. Those characteristics include the treatment of orders made in excess of jurisdiction (whether on constitutional grounds or for reasons of an inadequate legislative grant under s 77(i) as effective until they are -

Your Honours will see the expression:

until they are quashed or . . . set aside on appeal.

And, quashing, whatever be the reason for it, is a method of setting aside decisions of superior courts in Australia contemplated by the constitutional provisions. Could I refer also, without reading it, to what was said by your Honour Justice Hayne in the same case at page 268, paragraph [329].

One consideration mentioned in relation to the suggested non-availability of certiorari is that it developed to accommodate a situation where there might be no appeal but that may be the case with a federal superior court. It is perfectly possible for Parliament in the exercise of the legislative power under section 73 to take away appeal from a federal superior court. An appeal could be taken away in matters that fall within the description in section 76(i), matters "arising under this Constitution, or involving" the interpretation of the Constitution.

Your Honours, can I move from that to an argument which was advanced on behalf of WEL by my learned friend, Mr Maxwell, and that was that one treats section 75(v) as being the sole source of power to grant the "old", if I could use the term for the moment, prerogative writs. Presumably, your Honours, in matters whether constitutional or not, because section 75(v) is not limited to constitutional matters. Your Honours, in our submission, why would one read the Constitution like that? What about section 75(iii)? What about 76(i)? They say nothing about forms of relief. The argument, your Honours, would exclude habeas corpus. Your Honours, one bears in mind, in our submission, that what section 75 is doing, is not just a conferral of jurisdiction, but an entrenchment of it. What it is describing is the extent to which the court's jurisdiction cannot be taken away. Indeed, your Honours, it is more entrenched pursuant to section 75 than much of the jurisdiction under section 73.

Could I come then, your Honours, to the question of "matter". In this regard this Court does not have only appellate jurisdiction. The Constitution gives it original jurisdiction as well, some of it being entrenched. The term "matter" used in sections 75 and 76 is, of course, chameleon like, in the sense that what it contemplates is affected by the words which follow it in each case. Your Honours, one needs to be careful, in our submission, in establishing a notion that "matter" is an entirely freestanding, as it were, concept; something added to what follows. Your Honours, to do so, can lead to a situation where the possible ultimate success of the proceedings determines whether they are or are not within jurisdiction.

Could I give your Honours two instances. First, if one assumes an agreement between two States, say New South Wales and Victoria, an agreement made because of erosion in the south bank of the Murray in consequence of works carried out in New South Wales on the north, and Victoria sues New South Wales in the court pursuant to section 75(iv), claiming relief under the agreement. An issue in proceedings is whether the agreement gives rise to legal, or only political, obligations. The view taken is that it gives rise to political obligations rather than legal ones. Is the decision "no jurisdiction" because, your Honours, that would seem to mean there was no "matter" on a wide view of it, or action dismissed?

In the Australian Woollen Mills Case [1954] HCA 20; (1954), 92 CLR 424, the issue does not appear to have been addressed, but the result was "action dismissed" and that was confirmed in the Privy Council. Your Honours, in cases of that kind it is really, in our submission, only by finessing in a sense, that one says there is a matter, namely whether the contract is legally binding, or is binding legally. The second example, if one takes section 75(v), why is more needed than the making of the application? The application may fail, of course, but the jurisdiction, in our submission, is invoked.

That is reflected, we would submit, in the notion that prohibition and certiorari may be granted at the instance of a person who does not have a direct or special interest. Could I refer in that regard to our written submissions, paragraphs 68 to 87, and may I refer by way of instance to what we have set out in paragraph 83. May I take your Honours to one reference there given. That is what was said in Truth About Motorways 200 CLR 591 by your Honour Justice Gaudron at page 611.

Your Honours were referred in our learned friend's argument to, I think, paragraph 46, but if one goes a little further up the page, what your Honours will see in paragraph 44, your Honour referred in the first five lines to various classes of matter and then said:

It is well established that prohibition may issue to a person who has neither a direct nor special interest in the subject matter of the proceedings constituted by an application to obtain that relief. That being so, there is no basis for concluding that either the concept of "judicial power" or the constitutional meaning of "matter" dictates that a person who institutes proceedings must have a direct or special interest in the subject matter of those proceedings. Indeed that proposition is denied by the very rule that the Attorney-General as the representative of the public interest - not as a person having a direct or special interest - may bring proceedings with respect to a public wrong.

If one looks at some of the submissions that came both on behalf of WEL and on behalf of the Commission, in our submission, the approach taken by members of the Court in the Truth About Motorways Case would seem to be - being sought to be subtly reversed.

Could I come then to a question of discretion. If we are correct in the contentions that, first, this is a matter in which the Court has jurisdiction and, secondly, that the contention we make about the intersection of the two enactments is right, in our submission, one needs to see why certiorari should not go. In that regard the case is one of a statutory intersection, in our submission. The facts are of the simplest kind. It is a situation where the Victorian bodies sought to put to the Court no substantive argument, effectively putting the case in a kind of ex parte fashion, effectively having the result that the case went before the judge in a kind of ex parte fashion, were it not for the arguments we sought to put before it.

The decision will have considerable flow-on effects. Your Honours heard my learned friend, Mr Walker, say that. If one goes to page 62 of the application book, one sees in the Victorian Treatment Authority's News a letter of August 2000. Your Honours will see a discussion of the consequences of the decision, the advice taken by senior counsel at the bottom of the page and the consequences discussed on that page and the next. If it be also that the decision has only a very limited potential application, then it is perhaps surprising that one sees such an enthusiasm - and I do not mean that in any offensive sense - to support it coming on behalf of both WEL and HREOC.

Now, your Honours, as soon as the decision was given, we adopted one of the modes of procedure available to us to come here. The issue is an issue which is constitutional; this Court, so many times, has declared its role in relation to the Constitution. The suggestion appears to be that what should happen is that we start another case, the judge will follow Justice Sundberg, and then there can be an appeal, and maybe another appeal. But one of the reasons, in our submission, for the Court's original jurisdiction is to enable it to dispose of matters without going through the system of appeals, particularly constitutional decisions. Now, if one treats the case as one of sex discrimination - and it was asked, "What is the evidence in relation to Dr McBain, concerning men?" But, your Honours, that was for Dr McBain's case. That was part of his case to put before the court what information there was.

GAUDRON J: Which court?

MR JACKSON: Before Justice Sundberg.

GAUDRON J: Well, exactly. That seems to me to raise one of the real problems in this case. Clearly, we are restricted to the record. What if one comes to the conclusion, by reference only to the record, that one cannot determine whether or not Dr McBain would be, or would have been, engaging in proscribed discrimination for the purposes of section 22 of the Sex Discrimination Act? What if, by reference to the record, one simply cannot determine whether the decision is right or wrong?

MR JACKSON: Well, we have not made out our case.

GAUDRON J: Why is that?

MR JACKSON: Because, your Honour, we have not demonstrated error, I suppose, simply.

GAUDRON J: But you may have demonstrated error on the face of the record in the technical sense, without demonstrating that the decision is wrong.

MR JACKSON: Well, your Honour, the writ of certiorari is, in the end, to quash decisions, and if, in the end, we are not able to demonstrate that the decision is wrong, then so be it.

KIRBY J: The statutory provision is not actually expressed as certiorari, is it? Why does it pick up all the baggage about record? It is not, as such, a writ of certiorari.

MR JACKSON: Your Honour, certiorari is not mentioned in the Judiciary Act. It is mentioned in the Rules, and that is the writ that we have been seeking.

KIRBY J: The statute simply talks of quashing an order, does it not? Section 30(a). Is it 30(a)? No, it is 33. Where is the statutory power?

MR JACKSON: The statutory power comes from - one starts with 30(a), the investment of jurisdiction, then section 31. From there, one goes to section 32. I say "from there" - the provisions overlap. And then one sees section 33(2). The various types of prerogative writ are dealt with in the terms of Order 55 - prerogative writ, your Honour - some prerogative, some constitutional. Various types of writs there referred to.

GLEESON CJ: Well, now, the only aspect of the decision that related specifically to Dr McBain is that appearing in declaration 3, which was a declaration that he:

may lawfully carry out a treatment procedure -

and "treatment procedure" is a defined term -

in respect of the fourth respondent notwithstanding that she does not satisfy the marriage requirement.

That is the only part of the decision directly relating to Dr McBain, is it not?

MR JACKSON: It is the only part that names him, in effect, but the earlier two declarations were sought by him in support, as we would understand it, of arriving at the third declaration. So that one can, in a sense, treat them as freestanding but they seem to be declarations on the way, in effect, to the third. They go beyond that but they seem to be on the way.

GLEESON CJ: The declaration in relation to Dr McBain is unqualified in its terms. He does not say, for example, he may lawfully carry out a treatment procedure in respect of the fourth respondent provided that that occurs in circumstances where he is providing in a discriminatory fashion services to men.

MR JACKSON: No, your Honour, it does not say that, no. Now, could I say that your Honour Justice Hayne said yesterday, in effect, what happens, the decision is quashed but nothing else. Your Honours, our submission in response to that would be that the proceedings in the Federal Court would not then have been finally determined. There would not be a decision because it would have gone and any decision that was taken in the proceedings after that would not have to be one that was taken in accordance with law. It would be a matter for the parties to determine what course they would take.

HAYNE J: But you seek mandamus. Do you persist in seeking mandamus? What is the consequence if mandamus is ordered?

MR JACKSON: Well, your Honour, could I say three things in relation to that. The first was - what I just said was in response to your Honour about quashing. Your Honour, so far as mandamus is concerned, we, in a sense, seek - I do not mean to be particularly hesitant about it, what I am seeking to say is it is sufficient for us if the decision is quashed because then the judge would, in any event, if he took further action in relation to it, to do it, obviously, in accordance with the decision of this Court.

HAYNE J: But the point that troubles me is, it is not for the judge to do anything.

MR JACKSON: No, your Honour.

HAYNE J: The parties have to come to the judge and agitate a matter in front of the judge.

MR JACKSON: Your Honour, that was what I was seeking to say in saying that if the decision was quashed, it would then be a matter for the parties to seek to take any further course they wanted to take in relation to it, see if they wanted something more. The decision would be quashed and the matter would not have been concluded.

GAUDRON J: Well, is that right? Are we to treat, in this new remedy, jurisdiction as having constructively not been exercised if a decision is subsequently quashed for non-jurisdictional error? It seems to involve some further consideration of the notion of constructive failure to exercise jurisdiction.

MR JACKSON: Well, your Honour, that is one of the arguments that your Honours will see, in a sense, in our written submissions. What I mean by that is that one of the bases upon which we sought jurisdiction in the Court was to say that we are seeking mandamus and in order to demonstrate that the jurisdiction has not been exercised, the first step is to set aside the existing exercise of jurisdiction.

GAUDRON J: Does that not mean that in all matters within 76, possibly also all matters within 75 - leave that aside for one moment - this Court can set aside decisions whether or not of a superior court, if that decision is brought into issue, simply for error of law. Do we not get to the stage - Padfield, do we not get to that situation by your argument?

MR JACKSON: Well, your Honour, I think I said that the other day, with respect, yes.

GAUDRON J: We do get to that situation?

MR JACKSON: Yes, of course.

HAYNE J: And thus these writs become a way of reviewing every decision of a Federal Court for error of law or federal body, but at least the Federal Court.

GAUDRON J: The federal decision-maker, ministers?

MR JACKSON: Well, your Honour, it depends. No doubt there are some limits about the type of decision to which certiorari would go, but leaving - - -

GAUDRON J: What are they?

MR JACKSON: Well, your Honour, a question does arise about whether - and I could not give your Honour a list of them at the moment, but, with respect, I am happy to endeavour to do so, but it is a question of what types of decisions one says that are available for certiorari. Now, some, they tend to be decisions related to courts.

GAUDRON J: But let me understand this.

MR JACKSON: I am sorry, could I just say one thing, your Honour.

GAUDRON J: Yes.

MR JACKSON: Because if one is speaking about prohibition and mandamus, prohibition and mandamus are concerned with duties. Some of those duties are duties of a judicial kind. Certiorari, your Honours, is primarily something concerned with courts.

GAUDRON J: Is there any constitutional reason to distinguish between matters falling within 76(i) and 76(ii) of the Constitution?

MR JACKSON: Well, apart from the fact that the Court does not have jurisdiction in 76(ii) matters at the moment, no.

GAUDRON J: Well then, any reason to distinguish between 76(i) matters and 75(iii) matters?

MR JACKSON: None at all, your Honour. Indeed, it is one of the jurisdictions given to the Court. The Court has it, the Court cannot give it away.

GAUDRON J: So what is to stop any person seeking certiorari in respect of any decision made by the Commonwealth, or a person who is acting on behalf of the Commonwealth, and thereby obtaining Padfield-type review? In particular, let us face this squarely and perhaps the Attorney may wish to say something in response to this, if you are right, why are not all immigration matters immediately reviewable on all grounds in this Court?

MR JACKSON: Your Honour, may I answer the question perhaps on behalf of the relators?

GAUDRON J: I do not know about that, I think you are the Attorney-General, Mr Jackson.

HAYNE J: There is the difficulty, is there not, Mr Jackson.

MR JACKSON: Your Honour, the first thing is to say what I said before and, without seeking to go into the detail of it, there are limitations, in our submission, upon the bodies to whom certiorari would go and the types of decisions. Now, I am happy to endeavour to give your Honour a list of those but I would have some difficulty in doing it at the moment. That is the first thing.

The second thing is that your Honours will appreciate that the Parliament - I am sorry I will start again. The Court has jurisdiction because of section 75(iii). It is a jurisdiction which the Court has and whilst it cannot be taken away from the Court, the Court also cannot give it away, with respect. So, the Court has jurisdiction and the jurisdiction is one which, in various respects, is capable of being regulated by laws made by the Parliament, perhaps under section 51(xxxix), but, in any event, the Parliament may, as it has done by the Judiciary Act, provide for particular types of proceedings.

Now, the Parliament cannot take away the Court's jurisdiction. Parliament may be able to regulate it, in relevant respects, to determine forms of relief, but having said that, one then has a situation where in relation to all these types of relief it is, in the end, discretionary. The Court said that. That being so, one would expect that the jurisdiction on many occasions, though there, would not in fact be exercised.

GAUDRON J: Why not? I thought if the Court had jurisdiction the general rule was it was obliged to exercise it and that is the whole basis for mandamus going to federal courts.

MR JACKSON: But, your Honour, if part of the jurisdiction which the Court is exercising is that it carries within it a discretion - - -

GAUDRON J: It may decline remedies on discretionary grounds.

MR JACKSON: That is all I was saying, your Honour.

GAUDRON J: But that is not say it can decline jurisdiction on discretionary grounds, as I understand the law.

MR JACKSON: Well, the Court, with respect, goes fairly close to that in circumstances where an order nisi is refused in, say, a 75(v) matter, which happens not infrequently, with respect.

GAUDRON J: But that is exercising jurisdiction.

MR JACKSON: Yes, your Honour.

GAUDRON J: Orders nisi are not, in my experience, refused on discretionary grounds.

MR JACKSON: No, your Honour, I did not say that, with respect. What I was saying was that the Court in relation to - your Honour is saying what are the filters, in effect, why would the Court - one of them is that, as matters presently stand, there is an application for an order nisi. Now, the Court or the Justice hearing that can say, "No", or say, "I am not going to grant it to you. You have to go before a Full Court".

KIRBY J: We do that all the time. I mean, if you sit in orders nisi, you are dealing with these matters all the time. There is nothing particular or difficult - - -

MR JACKSON: Your Honour, I do not suggest, with respect, that the Court's jurisdiction is limited or there is not a large range of matters and I do not suggest that there could not be procedures devised, equivalent, perhaps, to a form of special leave application that had to be - something of that kind. Now, the fact that the jurisdiction is wide does not mean that there will be a huge number of cases. This Court is pretty competent, your Honours, without legislation of disposing of matters it does not want to deal with.

GAUDRON J: Anyway, we are to take it that you accept, whether on behalf of the Attorney-General or the Catholic Bishops - it perhaps does not matter - that your argument means that administrative decisions are open to review in any case where an error of law can be shown on the face of the record, notwithstanding the Administrative Decisions (Judicial Review) Act, I presume?

MR JACKSON: Your Honour, what I was saying was that there are decisions - I was dealing with the question of certiorari and I accepted that to the extent to which certiorari would otherwise be available to a body or tribunal, it would be available on the ground of error of law in matters where the Court's jurisdiction is attracted by a provision of section 75 or the only other provision in relation to which jurisdiction is conferred, section 76(i). There is, with respect, no novelty in my saying that because that was what I said on the first day of the hearing.

Could I just say that our learned friends on behalf of the Commonwealth will be giving your Honours a submission about the position of the Attorney-General.

GAUDRON J: Where is the Commonwealth? I am sorry, I did not see the Commonwealth here.

MR JACKSON: With respect, your Honour, that is just what I was about to say. If your Honours look at section 78A of the Judiciary Act, the intervention is by the person who is the Attorney-General but the intervention is, as the provision says, "on behalf of the Commonwealth", and that is where the Commonwealth is, with respect, your Honour: "on behalf of the Commonwealth". Whether it be the Commonwealth or a State, the intervention is on behalf of the polity by the person.

One can see of course Attorneys-General wearing a number of different hats. The fact that the distinction can be drawn can be seen in the second Territorial Senators Case, Queensland v The Commonwealth [1977] HCA 60; (1977) 139 CLR 585 at page 597. That was a case where the first Territorial Senators Case was Queensland v The Commonwealth, the two polities being parties eo nomine, and then wanting, to use the expression one has heard, the second bite of the cherry, Queensland by that name and the Attorney-General of Queensland acting parens patriae sued and the statement of claim was in relevantly the same terms. A question which arose was whether the fact that there had been the earlier proceeding had the result of being res judicata or estoppel, that issue did not arise because of the presence of the different party, namely the Attorney-General. It is dealt with principally by Justice Aickin at page 597.

Reference has been made by our learned friends to various articles of the Convention such as 11.2 and so on. Could we say two things about that. The first is that if one looks at the various provisions of the Convention, one sees that so often they commence with the words "discrimination against women", and that is the defined term which commences the relevant provision. The second thing is we have dealt in our written submissions in some detail with the Convention. May we invite your Honours to look at that.

Your Honours, thirdly, in relation to the Convention, we have provided to your Honours - it is a matter by way of reply, in a sense, to our learned friends on behalf of the Commission - some submissions about the additional materials they rely on. I was only able to get that to my learned friends yesterday and may I say that, subject to the Court, of course, if any party present wishes to make any submission about it, we have no objection to that, your Honour, being done in writing. Your Honours, those are our submissions.

GLEESON CJ: Thank you, Mr Jackson. We will reserve our decision in these matters.

AT 11.11 AM THE MATTER WAS ADJOURNED