Leesa Meldrum, a single, heterosexual woman, sought IVF treatment to assist her to become pregnant.
Unfortunately, in the state of Victoria, a law restricted IVF treatment to married or de facto heterosexual couples. Her gynaecologist, Dr McBain, sought a declaration from the Federal Court that the law, the Infertility Treatment Act (Victoria 1995), was inconsistent with Section 22 of the Commonwealth Sex Discrimination Act (1984), which says:
It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person's sex, marital status, pregnancy or potential pregnancy.
Under Section 109 of the Constitution:
When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be nvalid.
In the Federal Court case (McBain v State of Victoria and Ors) on 28 July 2000, Sundberg J decided that the two laws were indeed inconsistent and struck down the all parts of the Victorian law relating to marital status. Dr McBain was free to provide treatment to his patient.
The Prime Minister then, attempted to amend the Sex Discrimination Act to restrict access to "Assisted Reproductive Technology services" on the basis of a person's marital status, introducing a bill in April 2001. A complete over-reaction in a shameless attempt to pander to the religious right. Over the following weeks, the Labor, Democrat and Green parties combined to defeat of this legislation in the Senate.
The Catholic Bishops Conference issued a notice of motion in the High Court seeking to overturn the decision, and was joined by the Australian Episcopal Conference of the Roman Catholic Church and the Australian Family Association.
Now, the Australia Catholic Bishops Conference had no standing. That is to say, they were not a party to the original case, and under normal circumstances, they would not have been able to file an appeal. The normal procedure would have been for the original plaintiffs, Dr McBain and the State of Victoria, to appeal. Neither wished to do so.
However, the Attorney-General, Daryl Williams, granted the bishops a fiat,a rarely used legal instrument dating back to Medieval England which grants authority to someone who could not otherwise seek court orders in their own right.
The church argued that the Victorian laws were not inconsistent with the Federal act,as Section 32 provides an exception where services are of such a nature that they can only be supplied to one sex.
However, the Federal government declined to defend its own law. Since the system of justice in English-speaking countries is based on the idea of an adversarial situation in which lawyers present arguments, this was a severe blow. It meant that there would be no opposing case.
So Women's Electoral Lobby (Victoria) and the Human Rights and Equal Opportunity Commission (the body responsible for Administration of the Sexual Discrimination Act) were granted leave by the High Court to intervene in support of the decision of the Federal Court decision.
I contacted the WEL to see if there was anything I could do to help. It turned out that to mount their case, they needed money to fly their legal team up to Canberra and keep them there for the trial. So I donated money.
The resulting court case was very spirited and emotionally charged. Arguments went on for three days, and revolved around three critical issues:
(1) Do Catholic bishops have the right to intervene in other people's court cases? Many court rulings affect large numbers of people other than the plaintiffs. Does this give them the right to appeal? Does obtaining a fiat? The case began with the court throwing out a woman who demanded to be heard. The court gave the bishops somewhat longer to explain why they should not be similarly ejected.
(2) Assuming that, is fertility treatment a service for women only? Or are men involved in the conception process, if only in a microscopic way? And what was the meaning of the Victorian Act's stipulation that a woman had to be involved in an infertile relationship with a man? As Mary Gauldron J put it: "it seems to me that a single woman can be in an infertile relationship with any number of men".
(3) Assuming that, should the High Court provide legal relief.
After some months of deliberation, the High Court handed down its decision today. The court unanimously ruled against the bishops on point (1), splitting 4-3 only on the question of whether it can ever be acceptable. The majority said no:
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.
In considering the fiat, the Justices examined its history, back to the 14th Century, traced its development in 17th and 18th Century England and relatively recent cases in the 19th Century. In the end the majority concluded that:
it is one thing to give the Attorney a privilege when representing the Crown; it is another matter to give the Attorney the same privilege in a relator action. It would violate the principle of equality before the law, and should not be countenanced in the first decade of the 21st century. As long ago as the 19th century, Fitzgerald J confined the privileged position of the Attorney-General to "his official capacity, on behalf of the Crown". So should this Court.
The court dismissed the appeal with costs. Sundberg J's interpretation of the Sexual Discrimination Act stands, and lesbians and single women throughout the country have the right of access to fertility treatments.
The whole decision can be read here.