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2002
THE PARLIAMENT OF THE COMMONWEALTH OF
AUSTRALIA
HOUSE OF
REPRESENTATIVES
SEX DISCRIMINATION
AMENDMENT BILL 2002
EXPLANATORY
MEMORANDUM
(Circulated by authority of the
Attorney-General,
the Hon Daryl Williams AM QC MP)
This Bill amends the Sex Discrimination Act 1984 (the SDA) to enable States and Territories to legislate to limit access to assisted reproductive technology (ART) services to married couples (or married couples who are not living separately and apart from their spouse) and couples in a de facto marriage. The Bill is in substance the same as the Sex Discrimination Amendment Bill (No. 1) 2001 as passed in the House of Representatives in the previous Parliament.
The proposed amendments will ensure that the SDA does not prevent States and Territories from legislating to limit access to ART services to married couples (or married couples who are not living separately and apart from their spouse) and de facto couples. This will prevent State and Territory legislation being rendered inoperative on account of inconsistency with Commonwealth law. The amendments will not, however, permit States and Territories to discriminate between married and de facto couples. Nor will they permit States and Territories to impose an additional criterion of a specified period of cohabitation for de facto couples.
The Bill is not intended to regulate access to ART services directly. Rather, the Bill will ensure that the SDA does not prevent States and Territories from legislating for the purpose of restricting access to ART services to married or de facto couples, should they wish to do so. This is appropriate, given the responsibilities of States and Territories in relation to the regulation of the provision of medical care and treatment.
The amendments are expected to have a minor and unquantifiable financial impact on Government revenue.
1.This is a formal item which specifies that the amending Bill, if enacted, would be known as the Sex Discrimination Amendment Act 2002.
2. The Bill, if enacted, would commence on the day that it receives the Royal Assent.
3. This item explains that the item in the Schedule to the Bill amends the Act specified in the Schedule.
Why is this amendment being proposed?
4. Under s 22 of the Sex Discrimination Act 1984 (the SDA), it is unlawful for a person who provides goods or services, or makes facilities available, to discriminate against a person on the basis of a person’s marital status. “Marital status” is defined in ss 4(1) of the SDA as the status or condition of being single, married, married but living separately and apart from one’s spouse, divorced, widowed or the de facto spouse of another person. The term “de facto spouse” is defined as a person who lives with another person of the opposite sex as husband or wife (as appropriate) on a bona fide domestic basis although not legally married.
5. The Infertility Treatment Act 1995 (Victoria) sought to restrict access to certain reproductive procedures including artificial insemination and in-vitro fertilisation procedures. The Victorian Act sought to restrict access to a woman who was either:
• married and living with her husband on a genuine domestic basis; or
• living with a man in de facto relationship.
6. The effect of these restrictions was that single women could not lawfully access these procedures. These restrictions were challenged in the Federal Court of Australia in McBain v State of Victoria & Ors (unreported, 28 July 2000, [2000] FCA 1009) (“McBain”). The Court held that these restrictions were inconsistent with s 22 of the SDA and were therefore inoperative by reason of s 109 of the Commonwealth Constitution. Section 109 of the Constitution states
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 invalid.
7. In 2001, the Australian Catholic Bishops Conference and the Australian Episcopal Conference of the Roman Catholic Church (the Bishops) brought proceedings in the original jurisdiction of the High Court seeking orders to quash the decision of Sundberg J in McBain. The Bishops were granted a partial fiat by the Attorney-General to ensure that they had standing to bring proceedings in the High Court to argue that there is no inconsistency between the Victorian Act and the SDA. The Attorney-General also intervened in the proceedings under s.78A of the Judiciary Act 1903 as the proceedings raised a constitutional issue.
8. On 18 April 2002, the High Court handed down its decision in these proceedings (Re McBain; Ex Parte the Australian Catholic Bishops Conference [2002] HCA 16). The effect of the High Court’s decision is that the decision of Sundberg J stands. The High Court did not deal with or decide the issue of inconsistency between the Victorian Act and the SDA. Rather the decision was based on questions of procedure, jurisdiction and the exercise of judicial discretion.
9. The Government has consistently maintained that the SDA was never intended to prevent the States and Territories to be able to restrict access to assisted reproductive technology services to women who are married or living in defacto relationships if the State or Territory wishes to do so. The amendments to the SDA will ensure that can occur. The Commonwealth has limited constitutional power to legislate in this field - it is consistent with the States’ responsibilities in relation to the regulation of the provision of medical care and treatment that they be permitted to regulate access to ART services.
The scope of the amendment - What are ART services?
10. Assisted Reproductive Technology (ART) refers to the full range of technology that is available to assist in the achievement of fertilisation by non-coital means. Generally speaking, this technology “assists” reproduction because it circumvents problems that make pregnancy difficult or impossible. Whilst ART services are generally used to treat infertility, they can be used to assist reproduction by non-coital means in the absence of infertility.
11. ART services are not exhaustively defined under proposed ss 22(1D) but include in-vitro fertilisation (IVF), artificial insemination (AI), and gamete, zygote and embryo transfers. These are some of the more common ART services. However, the definition is not limited to these services. It will cover any other service that is designed to assist in fertilisation by non-coital means.
How does this affect State and Territory legislation?
12. The amendments will apply where State or Territory legislation deals with access to ART services. The amendments will ensure that the SDA does not prevent States and Territories from legislating to limit access to ART services to married couples (or married couples who are not living separately and apart from their spouse) and de facto couples. The amendments will not, however, permit States and Territories to discriminate between married and de facto couples. Nor will they permit States and Territories to impose an additional criterion of a specified period of cohabitation for de facto couples. The amendments will apply to pre-existing State and Territory legislation as well as State and Territory legislation that is enacted after this Bill is enacted.
13. The proposed amendments to the SDA will ensure that State and Territory legislation restricting access to ART services in this way is not overridden. At the moment, legislation directly restricting access to ART services exists only in South Australia and Victoria. Western Australia has recently passed legislation that amends the Human Reproductive Technology Act 1991(WA), to remove the restriction on women who are single or in a de facto relationship with a person of the same sex having access to ART services.
14. In the Northern Territory, there is no legislation directly restricting access to ART services. However, the Northern Territory’s Anti-Discrimination Act expressly excludes the provision of certain ART services from its operation. Under proposed ss 22(1B), such an exclusion is taken to be a restriction that is “permitted” for the purposes of proposed ss 22(1A).
15. The Bill will commence upon Royal Assent. When the amending Act commences, any provisions of State or Territory legislation (eg the Infertility Treatment Act 1995 (Vic)) that have been ruled inoperative, will revive. Although s 109 of the Constitution describes inconsistent State laws as “invalid”, this has been interpreted by the courts as doing no more than making the State law inoperative while, and to the extent that, there is an inconsistent Commonwealth law. It follows that if a State law, which is inconsistent with a Commonwealth law, is not repealed by the State legislature and remains on the statute book, the repeal or amendment of the Commonwealth law so as to remove the inconsistency has the result that the State law will again operate. (See Butler v. Attorney-General (Vic) (1961) 106 CLR 268 at 282-283. See also University of Wollongong v. Metwally (1984) 158 CLR 447, 456 per Gibbs CJ.) A similar approach is adopted in relation to Territory law. (See Northern Territory v GPAO & Ors (1999) 196 CLR 553.)
What is the effect of the amendment on States and Territories that do not have legislation restricting access to ART services?
16. In the absence of any State or Territory legislation in this area, the SDA will continue to apply. In other words, if States or Territories wish to limit access to ART services on the basis of marital status or status as a de facto spouse, they will need to enact legislation expressly authorising these restrictions. In the absence of express State or Territory legislation in this regard, or legislation like that in the Northern Territory that permits restrictions (see proposed ss 22(1B)), the terms of s 22 of the SDA will have full force and will continue to prohibit discrimination based on marital status in the provision of ART services.