FEDERAL COURT OF AUSTRALIA
[2000] FCA 1009
JOHN MCBAIN v THE STATE OF VICTORIA & Ors
Sundberg J
28 July 2000
EXPLANATORY STATEMENT:
In matters of public interest before the Court, it is customary to provide an explanatory statement to assist the public in understanding the proceeding in which judgment is delivered and the reasons for that judgment. This summary is not intended to take the place of the complete reasons.
The proceeding relates to the Victorian Infertility Treatment Act and the Commonwealth Sex Discrimination Act. Section 8(1) of the Victorian Act provides 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 Commonwealth Act makes it unlawful for a person to refuse to provide services to another person on the ground of the other person’s marital status.
Dr McBain wishes to provide infertility treatment to Ms Meldrum, who is a single woman not living in a de facto relationship.
Dr McBain has asked the Court to declare that the requirements of the Victorian Act are inconsistent with those of the Commonwealth Act. Section 109 of the Commonwealth Constitution mandates that where a State Act is inconsistent with a Commonwealth Act, the State Act is invalid to the extent of the inconsistency.
The infertility treatment is a “service” within s 22 of the Commonwealth Act. Dr McBain is precluded by the State Act from providing the service to Ms Meldrum because of her marital status. The State Act is accordingly inconsistent with the Commonwealth Act, and the Court declares that by force of the Constitution, the State Act is invalid to the extent of the inconsistency.
This means that women are not required to be married or in a de facto relationship in order to be eligible for infertility treatment, and Dr McBain is at liberty to provide that treatment to Ms Meldrum.
A full text of the Court’s judgment can be found on the Federal Court’s homepage at www.fedcourt.gov.au
