May 4th 2002

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Articles from this issue:

COVER STORY: The limitations of American power

When will John Howard step down?

BANKING: Kiwibank takes off in New Zealand

QLD: Philippines banana imports endanger Australian industry, wildlife

Straws in the Wind: Monocultured multiculturalism / Reporting China

LAW: High Court ducks IVF issue

ALP must put forward alternative program: Doug Cameron

Refugee stance defended (letter)

Banks' deceptive conduct (letter)

Tax holidays for multinationals (letter)

MEDIA: Shoot the messenger

The promise - and pitfalls - of free trade

What Gusmao's election means for East Timor

COMMENT: Holocaust taunts misguided

BOOKS: Bias: A CBS Insider Exposes How the Media Distort the News, by Bernard Goldberg

Demons and Democrats: Kim Beazley's view

Books promotion page

High Court ducks IVF issue

by Damien Tudehope

News Weekly, May 4, 2002

The High Court ruling in the McBain case was widely reported as a decision in favour of giving single women access to IVF services. Damien Tudehope, a solicitor in the case, sets the record straight.

It has been curious to see the reaction of many to the decision of the High Court to refuse the Australian Catholic Bishops Conference (ACBC), application to review the decision of Mr Justice Sundberg of the Federal Court, in the case known as McBain v State of Victoria.

In reading various media reports on the issue, one would be forgiven for thinking that the case had been substantially argued before the High Court and that the High Court had ruled that the decision of Mr Justice Sundberg was correct and that single women and for that matter, any woman, should be given access to IVF treatment.

It should be reiterated that those who are claiming a great victory in the High Court should note that the judgment gives no such comfort. What it does do however, is to leave the matter, on which most Australians have a very strong view, in the hands of the Commonwealth legislators.

To find on reading the judgment that the High Court decided no such thing might come as a surprise to many. In fact, the High Court specifically left open the question of whether the decision of Mr Justice Sundberg might in fact be in error.

In the very first paragraph of the judgment, the Chief Justice observes:

"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....

"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 applicant's, it would be both unnecessary and inappropriate for this Court to decide whether the decision of Sundberg J was correct."

The Court unanimously found for various reasons that the manner in which the ACBC had sought to mount their litigation challenging the decision of Mr Justice Sundberg was outside any of the parameters which would ordinarily allow litigants to commence proceedings in the High Court.

The Chief Justice found:

"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 hypothetical question divorced from any attempt to administer the law in question ...

"The Victorian authorities accept the decision of the Federal Court. The Bishops who support the policy of the law, ... contend that the judge made an erroneous decision in favour of Dr McBain. But for one citizen to say that a judge decided a case in favour of another citizen wrongly does not give rise to a matter."


So what does one make of all this? During the course of the proceedings, there were a number of opportunities where the contentious nature of the ACBC could have been raised.

1. In the initial proceedings before Mr Justice Sundberg the parties were Dr John McBain and the State of Victoria. The State of Victoria elected to do nothing. It was their legislation which was under threat by Dr McBain and the Attorney General of that State elected to sit mute and offer no submissions in response to a challenge as to the correctness or otherwise of its legislation.

To this end therefore, the ACBC sought leave to intervene in the proceedings as a friend of the Court. The ACBC were the only party heard in opposition to Dr McBain. Without the intervention in the Federal Court before Sundberg J. by the ACBC there would have been no "contradictor".

It is curious indeed that a State government which had introduced legislation of the manner of the Infertility Treatment Act which had been debated vigorously and then passed by the Parliament of Victoria would choose not to defend a challenge to its validity.

2. The matter came before the High Court by way of appeal for the first time on 17 October 2000. At that time, the matter came before Mr Justice Callinan, on an application for leave to appeal the decision of Mr Justice Sundberg to the full Court of the High Court. This exchange took place between Mr Jackson on behalf of the ACBC and Mr Justice Callinan.

Mr Jackson: "Well, we in fact became the Attorney General for the purpose of the proceedings."

His Honour: "But for your presence there would not have been an argument presented at all on..."

Mr Jackson: "Well your Honour, the real question, I suppose would have arisen at that point. Not one of jurisdiction but of the propriety of making the order, in the absence of someone contradicting it."

His Honour: "It is a curious thing, in a sense, for a legislator to come along and say, 'Well even though the legislation appears to say something in quite clear terms, we are not going to maintain an argument that the legislation is going to have any effect or be enforceable'."

At least at the stage before Mr Justice Callinan he formed the view that there was:

(a) an important matter to be decided; and

(b) that the only party who had shown any disposition to fight the matter before His Honour Mr Justice Sundberg was the ACBC.


The upshot of the decision is now two-fold:

(i) Either the decision of Mr Justice Sundberg is in error, a possibility which is freely admitted by the High Court Justices in which case for the error to be corrected it will need proper parties and a proper matter to get before the High Court to correct the error; or

(ii) alternatively, if it is correct then the only way to deal with the decision is for the legislators (the Federal Government) to amend the Sex Discrimination Act to allow the people of Victoria through their legislators to introduce laws which reflect the view of the people of Victoria.

For those who claim a great victory in the High Court decision, one should point out the following

  • The High Court has not decided that single women and lesbians should have access to infertility treatment procedures which are currently only available to a woman who is married and living with her husband on a genuine domestic basis or; living with a man in a de facto relationship.
  • The High Court has not decided whether the Convention for the Elimination of Discrimination Against Women to the effect that it has given effect in the Sex Discrimination Act is designed to eliminate discrimination as between women,. i.e., those women who have elected to marry as against those who have elected not to marry.
  • There has been no determination of what "infertility treatment" is for the purposes of the Infertility Treatment Act, and whether the service provided in infertility treatment is a service to a couple or to a person.

In conclusion, it is worth reminding the Commonwealth legislature and the State of Victoria of the intention of the Infertility Treatment Act - an intention which was the subject of some considerable debate at the time that the legislation was introduced. Section 5(1) of that Act states:

"It is Parliament's intention that the following principles be given effect in administering this Act, carrying out functions under this Act and in the carrying out of activities regulated by this Act -

(a) The welfare and interests of any person born or to be born as a result of a treatment procedure are paramount;

(b) Human life should be preserved and protected;

(c) The interests of the family should be considered;

(d) Infertile couples should be assisted in fulfilling their desire to have children."

It should be reiterated that those who are claiming a great victory in the High Court should note that the judgment gives no such comfort.

What it does do however, is to leave the matter, on which most Australians have a very strong view, in the hands of the Commonwealth legislators.

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