Two Sex Discrimination Act cases

Two Sex Discrimination Act cases

I have been asked to set out the two cases that have ruled on section 22 of the Sex Discrimination Act. The two cases are McBain, a decision of the Federal Court, and Pearce, a decision of the South Australian Full Court.

The Catholic Bishops Conference attempted, unsuccessfully, to seek a review of the McBain judgment in the High Court, being rejected on a jurisdictional issue.

I have set out below extracts from each case.


Dr McBain was a fertility doctor. Lisa Meldrum sought treatment. She wanted a baby, and needed to undergo IVF. She was single. The problem was that the Victorian legislation, the then Infertility Treatment Act 1995 said that to be eligible to undergo infertility treatment a woman must either be married and living with her husband on a genuine domestic basis or be living with a man in a de facto relationship.

Section 22 of the Commomwealth Sex Discrimination Act  makes it unlawful to refuse to provide a service because of someone’s marital status.

Dr McBain sought a declaration that section 22 of the Sex Discrimination Act overrode the restriction in the Infertility Treatment Act, thereby allowing him to treat Ms Meldrum. Dr McBain was successful.

The matter was before Justice Sundberg in the Federal Court. His Honour ordered:

(1) Section 8(1) of the Fertility Treatment Act 1995 (Vic) (“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 SexDiscrimination Act 1984 (Cth) and inoperative by reason of s 109 of the Constitution of the Commonwealth of Australia.
(2) The sections of the State Act referred to in the attached Schedule, to the extent that they are dependent upon the marriage requirement, are inconsistent with s 22 of the Sex Discrimination 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.

The Catholic Bishops Conference said that there was no inconsistency between the State and Federal laws. Justice Sundberg rejected that argument:

Meaning of services
10 Section 22 deals with discrimination in relation to the provision of goods and services. The word “services” is defined in s 4 so as to include “services of the kind provided by the members of any profession or trade”. The primary meaning of “service” given by the Macquarie Dictionary as “an act of helpful activity”. Prima facie the facility provided by the applicant fits that description. However the Catholic Church submitted that the central case of becoming pregnant is intercourse between a man and a woman, and that it is not apt to describe the act of the man as providing a “service” to the woman. But the achievement of fertilisation in the conventional manner is not what is to be characterised. What has to be characterised is the provision of a medical treatment that is designed to overcome any trait that precludes fertilisation occurring in the conventional manner. The end result of the two methods may be the same. But that is not a reason to characterise the treatment in the same way as one would characterise the natural process. It is true that the applicant provides a service aimed at bringing into existence a human being. But it is not a service of the same nature as intercourse, because fertility treatments dissect the biological processes and focus on overcoming any one of a series of problems that may arise before, during or after intercourse, and which preclude fertilisation. In the ordinary use of language, the medical processes answer the description “services of the kind provided by the members of any profession”. In legislation such as the Commonwealth Act the word “services” should be given a liberal meaning. See I W v City of Perth [1997] HCA 30; (1997) 191 CLR 1 at 12, 22-24, 27, 41-44, 69-75, a case in which the word appeared in the Equal Opportunity Act1984 (WA).
Other treaties
11 There is a presumption, albeit rebuttable, that Parliament intends to legislate in accordance with its international human rights obligations: Minister for Immigration v Teoh [1995] HCA 20; (1995) 183 CLR 273 at 287. The Catholic Church pointed out that various international instruments recognise the right of a child to be born into a family, to be raised by its mother and father, and to know its parents. For example, Principle 6 of the Declaration of the Rights of the Child states that a child “shall, wherever possible, grow up in the care and under the responsibility of his parents”. Principle 7 states that the responsibility for a child’s education lies in the first place with its parents. Article 10 of the International Covenant on Economic, Social and Cultural Rights states that “the widest possible protection and assistance should be accorded to the family, which is the natural and fundamental group unit of society”. Similarly art 23 of the International Covenant on Civil and Political Rights states that the family is the natural and fundamental group unit in society and is entitled to protection by society and the State, and endorses the right of men and women to marry and found a family.
12 The Catholic Church submitted that the word “services” in s 22 can be read consistently with the rights of a child as identified in these treaties, and need not be read so as to breach the fundamental rights they recognise. The difficulty with this argument is that the Commonwealth Act has the purpose of giving effect to a particular treaty – the Convention on theElimination of All Forms of Discrimination Against Women. The Catholic Church’s argument would give primacy to implications from other treaties over the words of the very treaty to which the Commonwealth Act gives effect. Further, when the treaties relied on are read as a whole, they tell against the existence of an untrammelled right of the kind for which the Catholic Church contends. Thus art 10 of the International Covenant on Economic, Social and Cultural Rights must be read in the light of art 1, which preserves the entitlement of every person to his or her own right of self determination, including the right freely to determine their social and cultural development, and art 2(2), which includes a guarantee that the rights enunciated in the Covenant will be exercised without discrimination of any kind as to race, colour, sex or other status. Articles 1 and 2(2) of the International Covenant on Civil and Political Rights are to the same effect. The preamble to the Declaration of the Rights of the Childcontains a recital in the same terms as Article 1 of each Covenant. As appears from par 11, Principle 6 is qualified by the words “wherever possible”.
13 The words of the relevant part of the definition of “services” are clear and unqualified. They are eminently apt to pick up a service rendered by a medical practitioner, and there is no occasion to introduce into them a qualification derived from an assumption made in treaties dealing with other topics, namely that a child will be born into a family as a result of natural processes involving a married couple. The fact that those treaties proceed on that assumption does not mean they are to be taken to assert or imply a prohibition against the birth of a child as a result of some other, medically assisted, mechanism.

His Honour concluded:

Section 8 of the State Act provides that a woman’s marital status, namely her status as a married woman or one living in a de facto relationship, is an essential requirement for the availability of a treatment procedure. Section 22 of the Commonwealth Act makes it unlawful for a person to refuse to provide services to another on the ground of the latter’s marital status. That is what s 8 requires a provider of infertility treatment to do. It requires the applicant to treat Ms Meldrum less favourably than a married woman or one in a de facto relationship. It is not possible for the applicant to obey both s 8 and s 22. The sections are directly inconsistent, and the former is inoperative to that extent.


Gail Pearce had separated from her husband. She sought IVF treatment at Adelaide’s Queen Elizabeth Hospital.  The hospital administrator refused to provide treatment because of section 13 of the  Reproductive Technology Act, which relevantly provided that fertility treatment could only be provided:

 "for the benefit of married couples
in the following circumstances;
husband or wife (or both) appear to be infertile; or
(ii) there appears to be a risk that a genetic defect would be
to a child conceived naturally;

(4) In subsection (3)-"married couple" includes two people who
not married but who are cohabiting as husband and wife and who-
(a) have cohabited continuously as husband and wife for
immediately preceding five years;or
(b) have, during the immediately preceding six years, cohabited as
husband and
wife, for periods aggregating at least five years."

Ms Pearce sought a declaration that the qualifying provision of section 13 of the State Act was invalid, because of the conflict with section 22 of the Sex Discrimination Act. She was successful.  Justice Williams stated:

In the present case it is not difficult to discern a "direct conflict" between
the Commonwealth legislation and the South Australian legislation as that term was
used by Gibbs CJ in University of Wollongong v Metwally [1984] HCA 74; (1984) 158 CLR 447 at 455-
456. It is not possible to obey the dictates of each law in circumstances where
each applies....
When the provisions of the Sex Discrimination Act and the Reproductive
Technology Act are examined side by side it is immediately apparent that there is
direct inconsistency between the two sets of legislation. The licensing condition
required by s13(3)(b) prohibits the application of IVF (and other artificial
fertilization procedures) except to married couples - including those in certain
de facto relationships. By virtue of the mandatory licensing condition the IVF service is not available to a single person who has not been cohabiting as set out
in s13(4). In such circumstances a person in the position of the plaintiff is
treated less favourably under the Reproductive Technology Act than "a
person of a different marital status". This is the very situation which is prohibited by
s22(1) of the Sex Discrimination Act having regard to s6(1) thereof. In summary,
the South Australian Act only allows a licensed service to be provided by the
imposition of a condition which (in its statutory terms) is expressly prohibited
by the Commonwealth legislation. It is not surprising that none of the parties
to these proceedings - nor the Attorney General - sought to resist the conclusion
that there was a collision between the two pieces of legislation such as to amount
to "inconsistency" within s109 of the Australian Constitution....

 In my view an order should be made in the following terms: “Declare that insofar as s13 of the Reproductive Technology Act restricts the application of artificial fertilization procedures under licence except for the benefit of “married couples” (including the class of persons described in s13(4)) the same is inconsistent with the provisions of the Sex Discrimination Act (Commonwealth) and to such extent is invalid by virtue of the operation of s109 of the Australian Constitution.”


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