FEDERAL COURT OF AUSTRALIA

EHT18 v Melbourne IVF [2018] FCA 1421

ORDERS

THE COURT DECLARES THAT:

1.    The applicant may undergo a “treatment procedure” as defined in the Assisted Reproductive Treatment Act 2008 (Vic) without the consent of her husband.

2.    Section 10(1)(a) of the Assisted Reproductive Treatment Act 2008 (Vic) is invalid and inoperative to the extent that it requires the applicant to obtain her estranged husband’s consent to the applicant undergoing a “treatment procedure” as defined in that Act.

THE COURT ORDERS THAT:

1.    There be no order as to costs.

THE COURT NOTES THAT:

The applicant has given undertakings to the Court that in respect of any child born as a result of a treatment procedure undergone in reliance upon an order made by this Court, she will not:

(a)    seek to register her estranged husband as the parent of the child on any birth certificate; or

(b)    seek to assert that her estranged husband is the father of the child for any purpose, including under the Family Law Act 1975 (Cth).

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

GRIFFITHS J:

1    The applicant is a married woman who has been separated and living apart from her husband since late last year. She wishes to have in vitro fertilisation treatment (IVF) using donor sperm and without first obtaining her husband’s consent. The respondent, who provides assisted reproductive treatment, including IVF, has refused to provide IVF to the applicant without her husband’s consent, relying on s 10(1)(a) of the Assisted Reproductive Treatment Act 2008 (Vic) (the ART Act). The respondent is a registered ART provider under that legislation.

2    The applicant claims that the respondent’s reliance on s 10(1)(a) of the ART Act is wrong in law on two alternative bases:

(a)    on its proper construction, and in the applicant’s particular circumstances, that provision does not prevent her being treated without her husband’s consent; and

(b)    alternatively, if that is not the proper construction of the provision, the provision is invalid by reason of inconsistency with s 22 of the Sex Discrimination Act 1984 (Cth) (SD Act) and the operation of s 109 of the Commonwealth Constitution.

3    By her amended originating application, the applicant seeks two forms of declaratory relief:

(a)    a declaration that the applicant may undergo a “treatment procedure” as defined in the ART Act without the consent of her husband; and

(b)    a declaration that to the extent that the ART Act requires a married woman who is living separately and apart from her spouse to obtain the consent of her spouse to undergo a treatment procedure using donor sperm (i.e. other than her husband’s sperm) the ART Act is inconsistent with s 22 of the Sex Discrimination Act 1984 (Cth) and therefore invalid and inoperative pursuant to s 109 of the Constitution.

4    For reasons which will shortly emerge, there is some urgency about the proceeding. Before summarising the relevant statutory provisions, it is desirable to outline the background facts. In doing so, I will seek to avoid giving any information which may identify the applicant or her estranged husband.

Outline of background facts

5    The applicant, who has been given a pseudonym (EHT18), is a woman in her mid-40s. As noted above, she is married but has been separated and living apart from her husband since late last year. She wishes to have a child through IVF using her own eggs. She wishes to conceive the child from donor sperm and raise the child on her own, as if she were a single woman, or a woman separated from a de facto partner. She does not desire to have a child with her estranged husband and she does not want him to have any parental responsibilities for the child.

6    The applicant explained why she was unwilling to seek her husband’s consent to IVF. It is unnecessary to go into any detail about that other than to note the applicant’s evidence that she considers that her marriage has broken down irretrievably. She said that she intends to file for a divorce as soon as the requisite 12 month separation period has passed. The applicant’s evidence is that this is only shortly before she will turn 46. That is significant because she has been advised by the respondent that patients are generally only able to use their own eggs in an IVF procedure when they are younger than 46. She also said that she had recently undergone a procedure to collect her eggs and freeze them for later use after she was divorced. She added, however, that she had been advised that the prospects of achieving a successful pregnancy using frozen eggs are lower than IVF of fresh eggs and using implantation of either a fresh or frozen embryo. She has also been advised that she could commence a further round of treatment in mid to late September this year.

7    The respondent’s managing director gave evidence to the effect that while the respondent had Clinical Guidelines which were against a woman retrieving and using her own eggs after her 46th birthday, those Clinical Guidelines did not apply where a woman has frozen eggs which have been retrieved before her 46th birthday. She said that it was likely that the respondent would enable the applicant to undergo IVF to retrieve her own eggs up to two months following her 46th birthday.

8    These background matters explain why there is some urgency in the proceeding.

9    The respondent played a limited role in the proceeding, which was largely confined to the issue of the proper construction of the ART Act. The Attorney-General of Victoria intervened under s 78A(1) of the Judiciary Act 1903 (Cth), however, his intervention was limited to the scope of any declaratory relief that the Court might be minded to grant in relation to the applicant’s alternative claim of inconsistency between the ART Act and the SD Act.

10    In the absence at the time of a fully participating contradictor, Bromberg J made orders on 27 August 2018 and requested the President of the Victorian Bar Association to nominate a barrister to assist the Court as amicus curiae and in the role of contradictor. The Court is grateful to Mr R B C Wilson and Ms S M C Fitzgerald who agreed to accept that role. They provided helpful lengthy written submissions and supplementary submissions on the issue of joinder. They also appeared at the hearing on 20 September 2018 and made oral submissions.

The relevant statutory provisions summarised

11    It is necessary to have regard not only to relevant provisions in the ART Act and the SD Act, but also in the Status of Children Act 1974 (Vic) (SOC Act), the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter) and s 109 of the Constitution. The ART Act and the SOC Act are closely related.

(a) The ART Act

12    Section 10(1)(a) of this legislation provides:

A woman may undergo a treatment procedure only if -

(a)    the woman and her partner, if any, have consented, in the prescribed form, to the carrying out of a procedure of that kind; and

…

13    The following definitions, which are set out in s 3 of the ART Act, are relevant:

In this Act -

…

assisted reproductive treatment means medical treatment or a procedure that procures, or attempts to procure, pregnancy in a woman by means other than sexual intercourse or artificial insemination, and includes -

(a)    in-vitro fertilisation; and

(b)    gamete intrafallopian transfer; and

(c)    any related treatment or procedure prescribed by the regulations;

…

partner, in relation to a person, means -

(a)    the person's spouse; or

(b)    a person who lives with the first person as a couple on a genuine domestic basis, irrespective of gender;

…

treatment procedure means—

(a)    artificial insemination, other than self-insemination; or

(b)    assisted reproductive treatment;

…

14    The word “spouse” is not defined in the ART Act. That is to be contrasted with the position under the SOC Act because, when it was originally enacted, s 137 of the ART Act introduced a definition of “spouse” into s 2(2) of the SOC Act as being “a person to whom another person is married”. I accept the submissions of amici curiae that, for the purposes of the ART Act, “spouse” should be given its ordinary meaning as a person to whom another person is married. It might also be noted that the word “partner” is used throughout the ART Act in many different contexts (see further at [62]) below.

15    Section 5 of the ART Act provides that it is the Parliament’s intention that certain principles be given effect to in administering the legislation, carrying out functions under it and in the carrying out of activities regulated by the legislation. One of the guiding principles is that “persons seeking to undergo treatment procedures must not be discriminated against on the basis of their sexual orientation, marital status, race or religion” (s 5(e)).

16    Section 7 of the ART Act provides:

7    Assisted reproductive treatment

A person may only carry out assisted reproductive treatment if -

(a)    the person -

(i)    is a doctor who is carrying out the treatment on behalf of a registered ART provider; or

(ii)    is carrying out the treatment under the supervision and direction of a doctor who is carrying out the treatment on behalf of a registered ART provider; and

(b)    the person is satisfied that the requirements of Divisions 2, 3 and 4 have been met.

Penalty: 480 penalty units or 4 years imprisonment or both.

17    Part 2 of the ART Act contains provisions relating to treatment procedures, including general requirements which are specified in Div 2. It is this Division which contains the requirement of consent in s 10(1)(a) and which is at the heart of the proceeding.

18    It is also relevant to note the terms of s 11, which sets out the requirements for a valid consent under s 10(1):

11    Requirements as to consent

(1)    A consent under section 10(1) -

(a)    must specify that the woman and her partner, if any, have consented to undergo the kind of treatment procedure specified in the consent; and

(b)    must not have been withdrawn or have lapsed when the treatment procedure takes place; and

(c)    must include a statement by the counsellor who provided counselling to the woman and her partner, if any, under section 13 that the counsellor has sighted a criminal records check in relation to the woman and her partner; and

(d)    must be accompanied by permission from the woman and her partner, if any, for a child protection order check to be conducted in relation to the woman and her partner.

(2)    The person giving the consent must give the consent or cause the consent to be given to -

(a)    a designated officer of the registered ART provider that is to carry out the treatment procedure; or

(b)    if the procedure is to be carried out by a person other than a registered ART provider, the doctor in charge of the woman's treatment.

19    It may be noted that the consent requirement is linked in part to other requirements relating to mandatory counselling of the woman and her partner (if any) and criminal and other records checks in relation to both the woman and her partner (if any).

20    The Court’s attention was not drawn to anything in the Explanatory Memorandum to the Assisted Reproductive Treatment Bill 2008 (Vic) which casts light on the issue of construction which arises in the proceeding.

(b) The SOC Act

21    It is important to note several provisions in this legislation, some of which were introduced by the ART Act in relation to women who are in a same-sex relationship and who undergo a treatment procedure. As mentioned above, there is a clear relationship between the two pieces of legislation.

22    The term “partner” is defined in s 2(2) in substantially similar terms to the definition of that term in the ART Act as either “the person’s spouse” or “a person who lives with the first person as a couple on a genuine domestic basis” (see [13] above). It might be noted again that although the term “spouse” is not defined in the ART Act, it is defined in s 2(2) of the SOC Act as meaning “a person to whom another person is married”.

23    Section 5 of the SOC Act provides:

Presumptions as to parenthood

A child born to a woman during her marriage or within ten months after the marriage has been dissolved by death or otherwise shall, in the absence of evidence to the contrary, be presumed to be the child of its mother and her husband, or former husband, as the case may be.

24    Section 10A of the SOC Act provides:

Interpretation

(1)    A reference in this Part to a married woman includes a reference to a woman who is living with a man as his wife on a bona fide domestic basis although not married to him.

(2)    A reference, however expressed, in this Part to the husband or wife of a person-

(a)    is, in the case where the person is living with another person of the opposite sex as his or her spouse on a bona fide domestic basis although not married to the other person, a reference to that other person; and

(b)    does not, in that case, include a reference to the spouse (if any) to whom the person is actually married.

25    Section 10C of the SOC Act relevantly provides:

Artificial insemination: presumption as to status of child

(1)    A reference in this section to a procedure is a reference to the artificial insemination of a woman where the semen used for the artificial insemination-

(a)    was produced by a man other than her husband; or

(b)    was a mixture of semen, part of which was produced by a man other than her husband and part of which was produced by her husband.

(2)    Where a married woman, in accordance with the consent of her husband, has undergone a procedure as a result of which she has become pregnant-

(a)    the husband shall be presumed, for all purposes, to have caused the pregnancy and to be the father of any child born as a result of the pregnancy; and

(b)    any man, not being her husband, who produced semen used for the procedure shall, for all purposes, be presumed not to have caused the pregnancy and not to be the father of any child born as a result of the pregnancy.

(3)    A presumption of law that arises by virtue of subsection (2)-

(a)    is irrebuttable; and

…

26    Section 10D of the SOC Act is an important provision. It provides for presumptions which arise as to the status of a child where donor semen has been used. It operates in part by reference to whether a married woman has undergone a treatment procedure with the consent of her husband and as a result of which she has become pregnant. The provision creates presumptions in relation to both the husband and the sperm donor. It relevantly provides:

Implantation procedures: presumption as to status of child where donor semen used

(1)    A reference in this section to a procedure is a reference to the procedure of implanting in the womb of a woman, or otherwise transferring to the body of a woman, an embryo derived from an ovum produced by her and fertilized outside her body by semen produced by a man other than her husband.

(1A)    A reference in this section to a procedure includes a reference to-

(a)    the procedure of transferring to the body of a woman, otherwise than by artificial insemination-

(i)    semen produced by a man other than her husband; or

(ii)    semen produced by a man other than her husband and an ovum produced by her; and

(b)    the procedure of transferring to the body of a woman an ovum in the process of fertilisation, if the ovum was produced by her and the process of fertilisation commenced outside her body from semen produced by a man other than her husband.

(2)    Where a married woman, in accordance with the consent of her husband, has undergone a procedure as a result of which she has become pregnant -

(a)    the husband shall be presumed, for all purposes, to have produced the semen used for the fertilization of the ovum used in the procedure and to be the father of any child born as a result of the pregnancy; and

(b)    the man who produced the semen used for the fertilization of the ovum used in the procedure shall, for all purposes, be presumed not to have produced that semen and not to be the father of any child born as the result of the pregnancy; and

(c)    the husband shall be presumed, for all purposes, to have produced the semen-

(i)    used in the procedure; or

(ii)    used for the fertilisation of the ovum used in the procedure; or

(iii)    used for the fertilisation of the ovum from which the embryo used in the procedure was derived-

and to be the father of any child born as a result of the pregnancy; and

(d)    the man who produced the semen-

(i)    used in the procedure; or

(ii)    used for the fertilisation of the ovum used in the procedure; or

(iii)    used for the fertilisation of the ovum from which the embryo used in the procedure was derived-

shall, for all purposes, be presumed not to have produced that semen and not to be the father of any child born as the result of the pregnancy.

(3)    A presumption of law that arises by virtue of subsection (2)-

(a)    is irrebuttable; and

…

27    Section 15 of the SOC Act provides:

Women with no partner: presumption as to status of child

(1)    If a woman who does not have a partner undergoes a procedure as a result of which she becomes pregnant-

(a)    the woman is presumed, for all purposes, to be the mother of any child born as a result of the pregnancy; and

(b)    the man who produced the semen used in the procedure is presumed, for all purposes, not to be the father of any child born as a result of the pregnancy, whether or not the man is known to the woman.

(2)    A presumption of law that arises under subsection (1)-

(a)    is irrebuttable; and

(b)    prevails over -

(i)    any conflicting presumption that arises under section 8 or

(ii)    any conflicting declaration made under section 10.

(c) The Charter

28    Section 28 of the Charter requires there to be a statement of compatibility in respect of a Bill. It further requires the parliamentarian who introduces the Bill to state whether, in the member’s opinion, the Bill is compatible with human rights and, if so, how it is compatible and, in the event of incompatibility, to state the nature and extent of the incompatibility. Under s 28(4), a statement of compatibility is not binding on any court or tribunal.

29    Section 32 of the Charter provides:

Interpretation

(1)    So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights.

(2)    International law and the judgments of domestic, foreign and international courts and tribunals relevant to a human right may be considered in interpreting a statutory provision.

(3)    This section does not affect the validity of -

(a)    an Act or provision of an Act that is incompatible with a human right; or

(b)    a subordinate instrument or provision of     a subordinate instrument that is incompatible with a human right and is empowered to be so by the Act under which it is made.

(d) The SD Act

30    It is desirable to set out the definition of “marital or relationship status”, as well as the relevant provisions of this legislation relating to direct and indirect discrimination.

31    Section 4 of the SD Act provides:

Interpretation

(1)    In this Act, unless the contrary intention appears:

…

marital or relationship status means a person’s status of being any of the following:

(a)    single;

(b)    married;

(c)    married, but living separately and apart from his or her spouse;

(d)    divorced;

(e)    the de facto partner of another person;

(f)    the de facto partner of another person, but living separately and apart from that other person;

(g)    the former de facto partner of another person;

(h)    the surviving spouse or de facto partner of a person who has died.

32    It is notable that, in contrast with the ART Act, this definition expressly recognises and draws a distinction between the status of a person who is married and the status of a person who is married but is living separately and apart from his or her spouse.

33    Section 22 of the SD Act, which is in Div 2 of Pt II, prohibits discrimination on the ground inter alia of a person’s marital or relationship status in the provision of goods and services. It is common ground that the respondent provides a “service” within the meaning of the SD Act.

34    The alternative concepts of direct and indirect discrimination on the ground of marital or relationship status are the subject of ss 6(1) and (2) respectively:

(1)    For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of the marital or relationship status of the aggrieved person if, by reason of:

(a)    the marital or relationship status of the aggrieved person; or

(b)    a characteristic that appertains generally to persons of the marital or relationship status of the aggrieved person; or

(c)    a characteristic that is generally imputed to persons of the marital or relationship status of the aggrieved person;

the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person of a different marital or relationship status.

(2)    For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of the marital or relationship status of the aggrieved person if the discriminator imposes, or proposes to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging persons of the same marital or relationship status as the aggrieved person.

…

35    Section 32 of the SD Act provides:

Services for members of one sex

Nothing in Division 1 or 2 applies to or in relation to the provision of services the nature of which is such that they can only be provided to members of one sex.

(e) The Constitution

36    Section 109 of the Constitution provides:

Inconsistency of laws

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.

Applicant’s submissions summarised

37    The applicant contended that the consent provisions of the ART Act can and should be read so as to not require a married woman who is separated from and living apart from her husband to obtain his consent to her undergoing IVF treatment. She submitted that this interpretation was supported by s 32 of the Charter (citing Momcilovic v The Queen [2011] HCA 34; 245 CLR 1 (Momcilovic) and Victorian Police Toll Enforcement v Taha [2013] VSCA 37; 49 VR 1 (Taha)) and by the guiding principles set out in s 5 of the ART Act.

38    The applicant referred to the right to equality which is protected under s 8 of the Charter, which includes the right of every person “to enjoy his or her human rights without discrimination”. She also relied upon the right to privacy in circumstances where s 13 of the Charter relevantly provides that a person has the right not to have his or her privacy and family unlawfully or arbitrarily interfered with.

39    The applicant submitted that there were two purposes served by the requirement of consent in s 10(1)(a).

(a)    Facilitating the operation of provisions in the SOC Act, which accompanied and were provided for by the ART Act. A consequence of a partner providing consent to fertility treatment, particularly that involving use of donor ovum, sperm and the use of surrogates, is the creation of an irrebuttable presumption that the partner is a parent of the child and the donor is not (citing ss 10C and 10D of the SOC Act).

(b)    The giving of consent triggers the requirements in ss 11 and 12 of the ART Act for criminal records and child protection order checks to be made, as well as the presumption against treatment which arises under s 14 of the ART Act in relation to criminal records and child protection orders.

40    The applicant submitted that in circumstances where a woman is separated from her husband, child protection considerations do not require the husband’s consent before IVF treatment is obtained.

41    The applicant’s primary submission was that the appropriate construction was to read s 10 as if it required the consent of a partner with whom the woman is seeking treatment. She further submitted that the relevant provisions of the SOC Act should be interpreted accordingly, such that a woman would be treated as a woman without a partner for the purposes of s 15 of that legislation (which creates a presumption as to the status of a child where the mother does not have a partner and becomes pregnant after undergoing a procedure – the terms of s 15 are set out in [27] above).

42    In support of that construction, the applicant relied upon the following additional matters. First, she said that it would be “odd” to interpret s 10(1) of the ART Act as requiring the husband’s consent where, under the SC Act, express provision is made for the situation where a legally married (but separated woman) has a new male partner and undergoes treatment with donor semen with that new partner’s consent (see the combined effect of ss 10A, 10C and 10D). These provisions operate to create a presumption that the new partner produced the semen and is the father.

43    Secondly, the applicant submitted that presumptions of paternity associated with there being a legal marriage are merely presumptions and are rebuttable. Moreover, the presumptions of paternity in ss 10C and 10D only arise where the treatment occurs in accordance with the husband’s consent. The applicant submitted that s 15 of the SOC Act could apply and that, while s 15 applies “if a woman does not have a partner”, interpreting “partner” to mean a partner with whom the woman has sought treatment would allow the provisions to work harmoniously while accommodating for the situation such as here where a woman undergoes IVF when married, but is separated, from her husband.

44    Thirdly, noting that under s 5 of the ART Act there is a guiding principle that “the welfare and interests of persons born or to be born as a result of treatment procedures are paramount”, the applicant submitted that this did not justify requiring the consent of a former partner who, without such consent, would have no involvement in, or responsibility for, the child.

45    Fourthly, the applicant contended that her preferred construction was supported by the definition of “partner” in s 3 of the ART Act as including “a person who lives with the first person as a couple on a genuine domestic basis, irrespective of gender”. Since this definition is in contradistinction to a person who has a “spouse”, the applicant contended that the Parliament’s intention in requiring the consent of a “partner, if any” was to require the consent of a partner living with the person on a domestic basis with whom the woman is seeking treatment.

46    Fifthly, the applicant submitted that it would be inconsistent with the Charter and canons of statutory construction to interpret s 10(1)(a) as curtailing a woman’s right to have a child unless she obtained the consent of her husband from whom she was separated.

47    Sixthly, the applicant relied upon the principle of construction that remedial legislation, such as the ART Act, ought to be interpreted liberally, citing Curnow v Sullivan (No 2) (1976) 11 ALR 465 at 467.

48    Finally, the applicant contended that the respondent’s interpretation of s 10(1) is inconsistent with the Parliament’s intended meaning and also with the applicant’s rights to both equality and privacy.

49    In oral address, the applicant’s counsel advanced for the first time an alternative argument that the reference to “spouse” in the first limb of the definition of “partner” in s 3 of the ART Act should be read as though it referred to a spouse who was living together as a couple, in a bona fide genuine domestic relationship, with the person seeking assisted reproductive treatment.

50    If, contrary to the applicant’s preferred alternative constructions, the respondent’s construction is adopted, the applicant submitted that s 10(1)(a) discriminates directly and indirectly against her and offends ss 6(1) and (2) of the SD Act. She submitted that the direct discrimination under s 6(1)(a) was that she was being discriminated against on the basis of her marital status (i.e. as a married woman who is living separately and apart from her husband) and was being treated less favourably than a single woman or a woman who is the de facto partner of another person, but is living separately and apart from that other person, in same or similar circumstances. She submitted that she was being treated less favourably by reason of being a married woman who is living separately and apart from his husband because she:

(a)    is required to obtain the consent of another person, namely her estranged husband, in order to access IVF treatment; and/or

(b)    is required to obtain the consent of her estranged husband, thereby deeming him to be the father of the child, and precluding the scenario of the child being raised under the sole parental care and responsibility of the mother; and/or

(c)    is unable to access treatment without her estranged husband’s consent.

51    To the extent that the discrimination is indirect under s 6(2) of the SD Act, the applicant submitted that a condition that she obtain the consent of her estranged husband is not reasonable because a married woman who is living separately and apart from her husband is less likely to obtain their husband’s consent, especially because the giving of such consent would give rise to an irrebuttable presumption that the husband is the father of the child.

52    On the issue of non-joinder of her estranged husband, the applicant submitted that this was unnecessary if the Court did not make adverse findings of fact in relation to the husband. She also submitted that his non-joinder did not prevent the Court from granting declaratory relief if that relief did not directly affect his legal rights and liabilities. She submitted that s 10(1)(a) of the ART Act did not give rise to any legal right in her estranged husband, because its object is to protect the interests of the child, not the partner, particularly in circumstances such as here, where a donor’s sperm is to be used and not the husband’s.

53    The applicant also made detailed submissions concerning the relevance of presumptions under s 5 of the SOC Act and the operation of ss 69P, 69U and 69V of the Family Law Act 1975 (Cth), as well as the operation of relevant provisions of the Births, Deaths and Marriages Registration Act 1996 (Vic) (ss 13, 15, 16 and 17B) and the Births, Deaths and Marriages Registration Regulations 2008 (Vic) (regs 7(g) and (h)).

Respondent’s submissions summarised

54    The respondent filed a brief outline of submissions which was directed exclusively to the proper construction of s 10(1)(a) of the ART Act. Curiously, the respondent referred to the definition of “spouse” in s 2CA of the Acts Interpretation Act 1901 (Cth) in support of its submission that the applicant had a “spouse” within the meaning of the definition of “partner” in s 3 of the ART Act. Section 2CA(1) provides that, for the purposes of any Act (i.e. Commonwealth Act), a person is the spouse of another person (whether of the same sex or a different sex) if the person is legally married to the other person. The respondent explained that its interpretation of the term “partner” is “based on the simple reading of both the definition of ‘partner’ in the ART Act and the definition of ‘spouse’ in the Acts Interpretation Act 1901 (Cth)”. It is difficult to see how the definition of the term “spouse” in the Commonwealth Acts Interpretation Act can have any relevance to the proper construction of a term in State legislation, a proposition which the respondent’s legal representative accepted during the course of the hearing.

55    The respondent made no submissions concerning the possible application of s 109 of the Constitution, nor did it provide any support to the issue raised by amici curiae as to whether the doctor proposing to provide IVF treatment to the applicant should have been joined as a party to the proceeding. The respondent submitted that the making of declaratory orders would be sufficient to enable the doctor to reach a state of satisfaction as required by s 7(b) of the ART Act. For that reason, the respondent did not support any suggestion that the applicant’s treating doctor should have been joined as a party to the proceeding. I accept the respondent’s submission.

56    The respondent also made clear that it had no objection to providing a treatment procedure to the applicant without her husband’s consent if the Court made the declarations sought by her in her originating application.

The submissions of the State Attorney-General summarised

57    As noted above, the Attorney-General’s intervention was confined to the question of the scope of any declaratory relief which the Court might grant in the event that the Court found that s 109 of the Constitution applied.

58    The Attorney-General submitted that, in those circumstances, the Court should only make the first declaration sought by the applicant because that was sufficient to resolve the issue between the parties and would enable the applicant to be treated without her estranged husband’s consent.

59    The Attorney-General submitted that it was unnecessary for the Court to make any wider declaration relating to inconsistency with s 109 of the Constitution. Alternatively, it was submitted that if the Court was minded to make such a declaration, it should be confined in its terms to the applicant herself and not other classes of women, such as women who are unmarried but who live with their partner (male or female) on a genuine domestic basis.

60    The Attorney-General submitted that the applicant did not have a “real interest” in relief which is directed to other classes of women who are not in her circumstances, citing cases such as Bass v Permanent Trustee Co Ltd [1999] HCA 9; 198 CLR 334; Forster v Jododex Aust Pty Ltd [1972] HCA 61; 127 CLR 421; Ainsworth v Criminal Justice Commission [1992] HCA 10; 175 CLR 564 and Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41; 243 CLR 319.

Submissions of amici curiae summarised

61    Amici curiae supported the respondent’s construction of the term “partner”. They emphasised that the definition of that term in s 3 of the ART Act was not stated to be subject to there being a contrary intention, nor was there any room for the implication of such a qualification in s 3.

62    Amici curiae also emphasised that the term “partner” was used throughout the ART Act in different contexts (pointing to ss 9(b), 10(1)(a), 10(2)(a)(iii), 11(1), 13, 14, 25, 29, 40, 43, 46, 49, 49A, 50-52, 52AA, 55, 68, 68B, 73B and 121A). They submitted that any change to the literal meaning of s 10(1)(a) would have ramifications for the operation of both the ART Act as a whole and the SOC Act, which ramifications would sit uncomfortably with the applicant’s preferred construction.

63    Amici curiae submitted that the Charter was not relevant having regard to the clear and unambiguous meaning of “partner” as defined in s 3 of the ART Act.

64    In short, amici curiae submitted that it was for the Victorian Parliament to amend the legislation to redefine the term “partner” if it wished to give effect to the applicant’s construction, and not the task of the Court.

65    Furthermore, amici curiae submitted that the applicant’s preferred construction of reading the expression as meaning “a partner with whom the woman is seeking treatment” created potential difficulties in different contexts. They gave the example of where a woman’s partner sought treatment with the woman but then changed their mind for health, family, financial or other reasons. In any of those circumstances, did the expression mean that, in such cases, the “partner” is no longer seeking treatment with the woman and that the woman could assert that she wished to seek treatment on her own and without her partner’s consent?

66    As to the s 109 issue, amici curiae submitted that it was open to the Court to find that there was direct discrimination under s 6(1)(a), citing McBain v Victoria [2000] FCA 1009; 99 FCR 116 (McBain) and Pearce v SA Health Commission (1996) 66 SASR 486 (Pearce).

67    Amici curiae submitted that it was factually indisputable that the applicant is treated differently from women with a different marital or relationship status (such as a single woman, a divorced woman, a woman who is the former de facto partner of another person, or a woman who is the de facto partner of another person but is living separately and apart from that other person). The question for the Court, however, is whether the applicant is being treated “less favourably than, in circumstances that are the same or are not materially different” from how the respondent treats or would treat a person of a different marital or relationship status, so submitted amici curiae.

68    Amici curiae further submitted that the Court also had to determine whether or not the applicant was being treated less favourably in circumstances that are “the same or not materially different”.

69    In order to assist the Court, amici curiae submitted that the following three contentions pointed against a finding of direct discrimination. First, the comparator group as described above are not in circumstances that are “the same or not materially different” to the applicant’s circumstances. That is because there are legal and financial responsibilities in respect of children imposed upon the husbands of married (albeit separated) women (citing s 5 of the SOC Act as an example). They submitted that the statutory presumption of parenthood by a husband of a married woman where a child is born during the marriage or within 10 months after the marriage ending, has no application to single women nor ex-partners of recently separated de facto women. Amici curiae submitted that the Court needed to determine whether these were distinguishing circumstances, as well as determine whether or not they are an “attribute” under s 6(1)(a) (i.e. being a married woman) or an assumed or actual characteristic of the attribute which causes them to be part of the attribute under ss 6(1)(b) or (c).

70    Amici curiae submitted that it was arguable that these matters could not be equated with the “attribute” of the applicant as a “married woman”, nor with assumed or actual characteristics of the attribute, having regard to caselaw.

71    Amici curiae acknowledged, however, that the position stated immediately above may impermissibly conflate “the circumstances” with the attribute itself (“marital or relationship status”) and that the different attribute is impermissibly relied on as constituting different circumstances, contrary to the Full Court’s decision in Commonwealth of Australia v Human Rights & Equal Opportunity Commission & Others (1993) 46 FCR 191; 119 ALR 133 (HREOC).

72    Amici curiae submitted that it was open to the Court to find that legal and financial responsibilities for, and interests affecting a partner with respect to children, are not characteristics of married women but rather could be viewed as distinguishing circumstances.

73    The second argument against a finding of direct discrimination was said by amici curiae to be that the applicant, as a single separated (but not divorced) married woman, has not been treated “less favourably”. It was put that it is arguable that the absence of consent required for a member of the comparator group did not mean that the applicant was being treated “less favourably” because it is inconsistent with what might be regarded as part of marriage itself that the parties to the marriage have a say in each other’s lives as features of the legal institution of marriage. While accepting that marriages can and are different, amici curiae submitted that even where there was disagreement between spouses, decisions like having a child in the marriage was a decision made within the “union” of the marriage, a feature of which is that people do things together.

74    Thirdly, amici curiae drew attention to the potential operation of the exemption in s 32 of the SD Act (see [35] above). Amici curiae said that it was arguable that the IVF treatment being sought by the applicant is a treatment that can only be provided to women. It was acknowledged, however, that this was inconsistent with Sundberg J’s decision in McBain, albeit in respect of the previous Victorian legislation dealing with infertility.

75    Amici curiae also made detailed submissions on the subject of indirect discrimination under s 6(2) of the SD Act, as well as on the form of relief which the Court should grant in the event of a finding of inconsistency under s 109 of the Constitution.

76    Fourthly, amici curiae made submissions as to whether the husband’s rights or interests were affected to such an extent that he ought to have been joined as a party or put on notice of various claims made by the applicant in her affidavit relating to their relationship. It was noted that the issue of the husband’s joinder was raised by Bromberg J at the case management hearing on 22 August 2018. Amici curiae submitted that the husband had a clear interest on the issue of whether his consent is required and also on issues such as whether a presumption of his parenthood would arise if a child is born as a result of the procedure which the applicant wished to obtain from the respondent. Amici curiae pointed out that the Court did not know what evidence the husband might wish to lead or what submissions he might wish to make in opposition to the applicant’s claims for declaratory relief. It was also pointed out that the husband might have an interest in any evidentiary findings made by the Court which affect him personally.

77    Finally, although amici curiae acknowledged that the applicant’s evidence that she is still married but is living separately and apart from her husband was an admission against her own interest because it stood in the way of her obtaining IVF treatment, they submitted that it might assist the Court to have further evidence of these matters in the form of an extract of the applicant’s marriage certificate or a business record statement that she gave to the respondent preceding the requirement that she obtain her husband’s consent.

78    As noted above, amici curiae also provided a written outline of supplementary submissions on the question of whether the applicant’s estranged husband ought to have been joined as a party in the proceedings, following a request from the Court that this issue be further addressed having regard to the Full Court’s decision in News Limited v Australian Rugby Football League Ltd [1996] FCA 870; 64 FCR 410 (News Limited) at 523-527. In brief, amici curiae submitted that the applicant’s failure to join her estranged husband as a party raised a question of procedural fairness which potentially affected the extent of any relief that the Court might grant.

Consideration and disposition of the amended originating application

(a) Some general principles of statutory construction

79    The plurality (Kiefel CJ, Nettle and Gordon JJ) in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 91 ALJR 936 (SZTAL) summarised the contemporary approach to statutory construction at [14] (footnotes omitted):

14.    The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.

80    The significance of the text in the task of statutory construction was given perhaps even more emphasis by the plurality (Hayne, Heydon, Crennan and Kiefel JJ) in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; 239 CLR 27 at [47] (footnotes omitted):

47.    This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.

81    A central issue of construction in this case is whether the definition of “partner” should be read down. This would necessarily involve implying words of limitation.

82    The leading authority on this aspect of statutory construction is the recent decision of the High Court in Taylor v Owners - Strata Plan No 11564 [2014] HCA 9; 253 CLR 531 (Taylor). French CJ, Crennan and Bell JJ said at [37]-[39] (footnotes omitted):

37.    Consistently with this Court's rejection of the adoption of rigid rules in statutory construction, it should not be accepted that purposive construction may never allow of reading a provision as if it contained additional words (or omitted words) with the effect of expanding its field of operation. As the review of the authorities in Leys demonstrates, it is possible to point to decisions in which courts have adopted a purposive construction having that effect. And as their Honours observed by reference to the legislation considered in Carr v Western Australia, the question of whether a construction “reads up” a provision, giving it an extended operation, or “reads down” a provision, confining its operation, may be moot.

38.    The question whether the court is justified in reading a statutory provision as if it contained additional words or omitted words involves a judgment of matters of degree. That judgment is readily answered in favour of addition or omission in the case of simple, grammatical, drafting errors which if uncorrected would defeat the object of the provision. It is answered against a construction that fills “gaps disclosed in legislation” or makes an insertion which is “too big, or too much at variance with the language in fact used by the legislature”.

39.    Lord Diplock's three conditions (as reformulated in Inco Europe Ltd v First Choice Distribution accord with the statements of principle in Cooper Brookes and McColl JA was right to consider that satisfaction of each could be treated as a prerequisite to reading s 12(2) as if it contained additional words before her Honour required satisfaction of a fourth condition of consistency with the wording of the provision. However, it is unnecessary to decide whether Lord Diplock's three conditions are always, or even usually, necessary and sufficient. This is because the task remains the construction of the words the legislature has enacted. In this respect it may not be sufficient that “the modified construction is reasonably open having regard to the statutory scheme” because any modified meaning must be consistent with the language in fact used by the legislature. Lord Diplock never suggested otherwise. Sometimes, as McHugh J observed in Newcastle City Council v GIO General Ltd, the language of a provision will not admit of a remedial construction. Relevant for present purposes was his Honour's further observation, “[i]f the legislature uses language which covers only one state of affairs, a court cannot legitimately construe the words of the section in a tortured and unrealistic manner to cover another set of circumstances.”

83    In Director of Public Prosecutions v Leys [2012] VSCA 304; 44 VR 1, the Victorian Court of Appeal said at [109] that there was a fourth requirement, namely “that the modified construction is reasonably open”.

84    Another relevant principle of construction is the need to take into account the consequences of giving a particular meaning to a statutory provision. As Mason and Wilson JJ stated in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; 147 CLR 297 (Cooper Brookes) at [23]-[26]:

23.    … The fundamental object of statutory construction in every case is to ascertain the legislative intention by reference to the language of the instrument viewed as a whole. But in performing that task the courts look to the operation of the statute according to its terms and to legitimate aids to construction.

24.    The rules, as D. C. Pearce says in Statutory Interpretation, p. 14, are no more than rules of common sense, designed to achieve this object. They are not rules of law. If the judge applies the literal rule it is because it gives emphasis to the factor which in the particular case he thinks is decisive. When he considers that the statute admits of no reasonable alternative construction it is because (a) the language is intractable or (b) although the language is not intractable, the operation of the statute, read literally, is not such as to indicate that it could not have been intended by the legislature.

25.    On the other hand, when the judge labels the operation of the statute as “absurd”, “extraordinary”, “capricious”, “irrational” or “obscure” he assigns a ground for concluding that the legislature could not have intended such an operation and that an alternative interpretation must be preferred. But the propriety of departing from the literal interpretation is not confined to situations described by these labels. It extends to any situation in which for good reason the operation of the statute on a literal reading does not conform to the legislative intent as ascertained from the provisions of the statute, including the policy which may be discerned from those provisions.

26.    Quite obviously questions of degree arise. If the choice is between two strongly competing interpretations, as we have said, the advantage may lie with that which produces the fairer and more convenient operation so long as it conforms to the legislative intention. If, however, one interpretation has a powerful advantage in ordinary meaning and grammatical sense, it will only be displaced if its operation is perceived to be unintended.

85    There are numerous examples where a Court has preferred a construction to avoid a manifest injustice if another available construction had been taken (see, for example, Public Transport Commission of New South Wales v J Murray-More (NSW) Pty Ltd (1975) 132 CLR 336 at 350 per Gibbs J and Hilton v Commissioner of Taxation (1992) 38 FCR 170).

86    These guiding principles of statutory construction need to be applied with appropriate caution, having regard to the well-recognised need for the Court in performing the task of statutory construction to avoid taking over the policy choices which properly belong to the Parliament. The Court is not the legislator.

(b) The proper construction of s 10(1)(a) of the ART Act

87    For the following reasons, I reject the applicant’s proposed constructions. First, there is no uncertainty or ambiguity in the term “partner” in the ART Act. As noted above, the term is defined in s 3 and, relevantly, means a person’s “spouse”. Although that term is not defined in the ART Act, it should be given its ordinary meaning, which is a person who is married to another person (whether living together or not). I accept the submission of amici curiae that the definition of “partner” in s 3 is not stated to be subject to a contrary intention, nor is there a sufficient basis for implying such a qualification in the terms of s 3.

88    Secondly, there are several formidable obstacles which stand in the way of both the applicant’s preferred primary construction that the word “partner” in s 10(1)(a) should be construed as requiring the consent of a partner with whom the woman is seeking treatment and not otherwise, and the alternative construction (i.e. the first limb of “partner” should be read as referring to a spouse who was living together with the person seeking assisted reproductive treatment). One is that this involves reading words of qualification or limitation and attracts the observations of the plurality in Taylor which are set out in [82] above. This is not a case of there being a simple or grammatical drafting error which, if left uncorrected, would frustrate the purpose of the provision. Moreover, the proposed limitation sits uncomfortably with the language which has in fact been used in the ART Act. It is notable, for example, that the legislature has specifically turned its mind elsewhere in the ART Act to the question whether any qualification is warranted in respect of the term “partner”. For example, in s 29, an express distinction is drawn between a “current or former partner” of a donor (who has produced gametes or an embryo formed from gametes produced by the donor) if the person carrying out a treatment procedure knows that the procedure may result in more than ten women having children who are genetic siblings. In circumstances where the Parliament itself has seen fit to include an express provision in the ART Act which operates in respect of both a current and a former partner, the Court should not itself introduce words of limitation in other provisions, such as s 10(1)(a), in the manner sought by the applicant.

89    A further and related difficulty lies in the fact that the term “partner” is used in different contexts throughout the ART Act, as is reflected in the references which are set out in [62] above. If the applicant’s construction of s 10(1)(a) was adopted, to what extent should the same words of qualification or limitation be read into other provisions of the ART Act which also use the term “partner”? The answer to that rhetorical question is not straightforward. Take s 29 again as an example. Should the suggested words of limitation also be read into that provision which refers in its terms to a “current or former partner” of a donor? Presumably not. This simply serves to highlight the undesirability of the Court assuming the role of the legislator in making complex policy choices. All the more so when dealing with a difficult and complex subject matter, such as assisted reproduction treatments, which raises a broad range of moral and other public policy issues. Many of those issues are highlighted in the 2007 report of the Victorian Law Reform Commission (the Commission) which preceded the enactment of the ART Act and to which further reference is made below.

90    Finally, in construing the relevant provisions, it is important to bear in mind their interaction with s 7 of the ART Act which makes it a criminal offence for a person to carry out assisted reproductive treatment otherwise than in accordance with the requirements of that provision (the terms of which are set out in [16] above). This serves to highlight the need for certainty in the operation of the relevant provisions, a consideration which may explain the clarity and lack of any ambiguity in the definition of “partner” and the terms of s 10(1)(a).

91    These difficulties are not overcome by reference to the Charter or the remedial nature of the legislation. Both those considerations must yield to the clear and unambiguous nature of both the language of s 10(1)(a) and the statutory definition of the term “partner” in s 3. It is also relevant to note that while the ART Act undoubtedly encroaches upon human rights and freedoms which are set out in the Charter, the legislation itself reflects the Parliament’s choices and judgment as to how competing human rights and freedoms should be balanced. The observations of the High Court in Momcilovic and Tate JA’s observations in Taha, upon which the applicant relied, need to be read with this feature of the ART Act in mind. Nothing in those observations permits a Court in construing a provision such as s 10(1)(a) to ignore the clear and unambiguous terms of that provision and to rewrite the provision so as to give effect to the applicant’s view of the purpose of the legislation and how the applicant sincerely believes the legislation should operate by reference to her particular circumstances. Nor, in my respectful view, does the Statement of Compatibility in respect of the 2008 Bill have any significance to the task of statutory construction in this proceeding. Contrary to the applicant’s submission, I attach no significance to the fact that the Statement of Compatibility is silent on the issue of discrimination based on marital status.

92    I do not suggest, of course, that it is inappropriate to adopt a purposive construction of s 10(1)(a). As the plurality noted in SZTAL (see at [79] above), considerations of text, context and purpose are at the forefront of the task of statutory construction (and see also s 35(a) of the Interpretation of Legislation Act 1984 (Vic)). The core difficulty for the applicant is that the relevant text of the ART Act is clear and unambiguous. Moreover, the applicant did not draw the Court’s attention to any significant feature of the historical context to the enactment of the ART Act which supported her preferred construction. Indeed, as the following brief survey reveals, the historical context appears to be neutral on the central issue of construction in the proceeding.

93    As part of that historical context, it is relevant to consider and contrast the existing relevant provisions of the ART Act with the counterpart provisions in the previous legislation before its repeal.

94    Division 2 of Pt 2 (i.e. ss 8 to 11) of the Infertility Treatment Act 1995 (Vic) (IFT Act), which is the predecessor legislation to the ART Act, contained general requirements for treatment procedures (which were defined in s 3 as including “a fertilization procedure”, which was further defined so as to include the medical procedure known as IVF). Section 8(1) prevented a woman from undergoing a treatment procedure unless she was either married and living with her husband on a genuine domestic basis or was living with a man in a de facto relationship. Sub-section 8(2) of the IFT Act required consent from the woman and her husband before the woman underwent a treatment procedure. Sections 8(1) and (2) were in the following terms:

8.    Persons who may undergo treatment procedures

(1)    A woman who undergoes a treatment procedure must-

(a)    be married and living with her husband on a genuine domestic basis; or

(b)    be living with a man in a de facto relationship.

(2)    Before a woman undergoes a treatment procedure she and her husband must consent to the carrying out of the kind of procedure to be carried out.

…

95    Under s 3 of the IFT Act, “husband” and “de facto relationship” were defined as follows:

husband, in relation to a woman who is living with a man in a de facto relationship, means the man with whom she is living in that de facto relationship;

de facto relationship means the relationship of a man and a woman who are living together as husband and wife on a genuine domestic basis, although not married;

96    The term “husband” was not defined other than in respect of a man who was in a de facto relationship with a woman. Presumably, the term otherwise had its ordinary meaning.

97    In 2002, the then Attorney-General asked the Commission to conduct an inquiry and report on the laws that govern the use of assisted reproduction in Victoria and in particular the desirability and feasibility of expanding the eligibility criteria for access to assisted reproduction and adoption. In a final report dated March 2007 and titled “Assisted Reproductive Technology & Adoption” (which was tabled in the Victorian Parliament on 7 June 2007), the Commission recommended that the requirements in the IFT Act that a woman who undergoes an assisted reproduction treatment procedure be “married and living with her husband on a genuine domestic basis” or “living with a man in a de facto relationship” should be removed (Recommendation 26). The Commission also recommended that the legislation be amended to recognise “that some people to whom the Act applies will be married or in heterosexual de facto relationships, some will be in same-sex relationships and others will not have partners (Recommendation 27).

98    The Commission recommended that people seeking to undergo assisted reproductive procedures must not be discriminated against on the basis of their sexual orientation, marital status, race or religion (Recommendation 1, emphasis added).

99    The Commission noted at page 58 of its report that it recommended that the requirements for consent, counselling and provision of information should remain.

100    The Commission considered the implications of decisions such as McBain and two decisions of the Supreme Court of Victoria and the Victorian Civil and Administrative Tribunal respectively in AB v Attorney-General (Vic) (2005) 12 VR 485 per Hargrave J and YZ v Infertility Treatment Authority [2005] VCAT 2655 per Morris P. The Commission noted at p 67 that it recommended that the legislation be amended to make it clear that women requiring assistance to become pregnant should not be excluded on the grounds that they have no partner or have a partner of the same sex, and that this would bring Victorian law into line with interstate legislation. The Commission further commented at p 67 that removal of the marital status requirement would require that consequential amendments be made to recognise that a woman undergoing treatment may have a partner of the same sex or may be single.

101    The Commission did not directly address the issue which arises for determination in this proceeding. Nor did the parties suggest that there is anything of direct relevance in the Second Reading Speech to the Assisted Reproductive Treatment Bill 2008 (Vic), apart from the applicant’s contention that it contained a statement that the paramount consideration of the legislation is the welfare and interests of the child, which is of limited significance in resolving the issue of statutory construction here.

102    The applicant did rely on certain extracts from the Second Reading Speech which introduced amendments to the SOC Act in relation to women in same-sex relationships who undergo a treatment procedure. In particular, she drew attention to the statement therein that a woman in a same-sex relationship who gives birth will be presumed to be the mother of the child born as a result of the pregnancy and that her female partner will be presumed to be a legal parent of any child born as a result of the pregnancy if she and the woman who gave birth were living together as a couple on a genuine domestic basis when the woman underwent the procedure as a result of which she became pregnant. The extract from this Second Reading Speech also included the following statements:

She must have consented to the procedure as a result of which her partner became pregnant. The consent of the woman’s partner is presumed but rebuttable.

103    The applicant submitted that similar language should be imported in the construction of the word “partner” in s 10(1)(a) of the ART Act. I reject that submission. It is difficult to see any legitimate basis upon which the Court should construe the term “partner” in s 10(1)(a) by reference to a Second Reading Speech which is directed not only to different (albeit related) legislation but also to a differently-worded provision. As has been emphasised, the statutory definition of “partner” in s 3 of the ART Act is clear and unambiguous.

104    The Court acknowledges that, as an exercise in law reform in the State of Victoria, a strong case might be made in favour of a woman in the applicant’s circumstances not having to obtain the consent of her estranged husband if she wishes to receive IVF treatment using donor sperm. As has been emphasised, however, it is not the Court’s task to resolve that question and to grapple with the complex moral and other issues which it presents. The Court’s task is to construe the current legislation. It is a matter for the Victorian Parliament to amend that legislation if it considers that it is desirable to do so. The Parliament might also wish to consider the desirability of amending s 10A of the SOC Act which, on its face, appears not to include same sex relationships. Again, that is not a matter which falls for determination in this proceeding.

105    It is well to remember Frankfurter J’s observations in Trop v Dulles (356 U.S. 86 at 119 (1958)):

All power is in Madison’s phrase, “of an encroaching nature”… Judicial power is not immune against this human weakness. It also must be on guard against encroaching beyond its proper bounds, and not the less so since the only restraint upon it is self-restraint.

106    Finally, the undesirability of the Court assuming the role of legislator and effectively redrafting s 10(1)(a) in the manner suggested by the applicant raises complex questions not only about the ramifications of that course for the operation of other provisions in the ART Act, but also for several provisions in the SOC Act. As noted above, the two pieces of legislation overlap and interact in a significant degree. This is well reflected in the terms of ss 10C and 10D, which are set out in [25] and [26] above. I accept the submission of amici curiae that the applicant has not demonstrated that acceptance of her preferred construction would have harmonious ramifications for the SOC Act.

(c) The s 109 Constitutional issue

107    The question is whether, applying the respondent’s construction of s 10(1)(a), there is an inconsistency with s 22 of the SD Act which attracts the operation of s 109 of the Constitution. In particular, does the requirement in s 10(1)(a) of the ART Act that the applicant obtain the consent of her husband, from whom she is separated, amount to discrimination on the ground of “marital or relationship status” within the meaning of s 4 of the SD Act and in a manner which is prohibited by s 22 of the SD Act? For the following reasons, I consider that it does and that s 109 of the Constitution operates to render the provision inoperative to the extent of the inconsistency.

108    First, s 10(1)(a) requires the respondent, as a provider of IVF treatment, to treat the applicant differently and less favourably than a woman with a different marital or relationship status. The discrimination is illustrated by reference to one of the classes in the comparator group which was helpfully identified by amici curiae in their submissions, namely a woman who is separated from her de facto partner. A woman in those circumstances is not required to obtain the consent of her estranged de facto partner under s 10(1)(a). That is because the second limb of the definition of “partner” in s 3 of the ART Act, which relates specifically to de facto relationships, only applies where the person lives with another person as a couple on a genuine domestic basis (irrespective of their gender). In contrast, the first limb of the definition of “partner” in s 3 of the ART Act, which relates specifically to a person’s “spouse”, contains no requirement that the married couple be living together as a couple on a genuine domestic basis. The discrimination is both stark and direct. Because the applicant has a spouse, she must obtain the consent of her husband under s 10(1)(a) notwithstanding that they are living separately and apart and have done so for almost a year. If instead of being married, the applicant had been in a de facto relationship with the same man who is now her spouse but she then separated from him for such a period that it could no longer be said that she was living with him as a couple on a genuine domestic basis, she would not be required to obtain his consent under s 10(1)(a).

109    The legislation operates to treat the applicant less favourably than the relevant comparator cohort in another significant respect. As the applicant pointed out, if her estranged husband gives his consent, he will be deemed to be the father of the child which will deny the applicant the status in law of being a sole parent with sole responsibility for raising the child, which is what she wants to do.

110    Secondly, I respectfully disagree with each of the three matters advanced by amici curiae and which are suggested by them to point against the making of a finding of direct discrimination. It is convenient to deal with each of the three matters in turn and it is sufficient to confine the analysis to the single comparator class identified in [108] above.

(a) An estranged husband’s legal and financial responsibilities to children

111    As noted above, amici curiae submitted that a woman in the relevant single comparator class is not in circumstances that are “the same or not materially different” to the applicant’s circumstances. They submitted that husbands of married albeit separated women have legal and financial responsibilities for, and interests in, children which were different in some respects from the legal and financial responsibilities and interests of de facto partners. As an example, they relied upon the rebuttable presumption as to a husband’s parenthood which arises under s 5 of the SOC Act where a child is born during a woman’s marriage or within ten months after the marriage has ended. Amici curiae emphasised that no such presumption arises in the case of recently separated de facto women (as opposed to the rebuttable presumptions which apply equally to husbands and de facto partners under ss 10B, 10C and 10D of the SOC Act and where a child is born as a result of a medical procedure).

112    As amici curiae candidly acknowledged, this argument might conflate “the circumstances” with the attribute itself (i.e. marital or relationship status) and that the different attribute is impermissibly relied upon as constituting different circumstances.

113    That acknowledgement is properly made. In my respectful view, amici curiae’s contention is inconsistent with the Full Court’s decision in HREOC, which is binding on me. There, the Full Court (Black CJ, Lockhart and Wilcox JJ) considered an argument that the matters which are specified in s 6(1) of the SD Act as constituting unacceptable bases for differential treatment can be relied upon to support an argument that the circumstances are not the same. The argument was rejected by Black CJ at 194, Lockhart J at 205 and Wilcox J at 209. Each of their Honours agreed with the statement of the President of the Human Rights and Equal Opportunity Commission that the purposes of the SD Act would be fatally frustrated if the matters which it expressly identifies as constituting unacceptable bases for differential treatment in s 6(1)(a), (b) and (c) could be used to render the overall circumstances materially different, with the result that the treatment could never be discriminatory within the meaning of that legislation.

114    I reject the first of the three matters raised by amici curiae on the basis that it is inconsistent with HEROC.

(b) Has the applicant, as a single separated but not divorced married woman, been treated “less favourably”?

115    This argument turned on the proposition that the requirement under s 10(1)(a) for the applicant to obtain her estranged husband’s consent is not “less favourable treatment” than the absence of consent required for the relevant comparator because the requirement simply reflects the features of the legal constitution of marriage. Amici curiae submitted that, while accepting that marriages can be and often are different, and while accepting that some decisions may be made within the marriage individually and not jointly, a decision like having a child is a decision made within the “union” of the marriage.

116    I reject that submission. I see no basis for differentiating between the features of a married couple’s relationship and those of a couple in a de facto relationship. As the High Court observed in Commonwealth v Australian Capital Territory [2013] HCA 55; 250 CLR 441 at [16], the rights and obligations which attach to the status of marriage and the social institution which that status reflects, “never have been, and are not now, immutable”. In my respectful view, the same applies to the status of a de facto relationship, not to mention the wide range of other genuine domestic relationships between partners.

(c) Does the exemption in s 32 of the SD Act apply?

117    Amici curiae submitted that it was arguable that the IVF services being sought by the applicant are services that can only be provided to a woman and may, therefore, fall within the exemption in s 32 (the terms of which are set out in [35] above). Amici curiae candidly acknowledged, however, that this submission was considered and rejected by Sundberg J in McBain.

118    McBain involved the application of s 109 of the Constitution to the IFT Act. That legislation dealt not only with the regulation of assisted reproduction treatment procedures, but also human embryo research and the prohibition of human cloning. (Fulfilling a government initiative which was announced in 2007, these three areas were separated with the enactment in 2008 of the ART Act, the Research Involving Human Embryos Act 2008 (Vic) and the Prohibition of Human Cloning Act 2008 (Vic) such that each area became the subject of a standalone piece of legislation). Section 8(1) of the IFT Act provided that, to be eligible for fertility treatment, a woman had to either be married and living with her husband on a genuine domestic basis or be living with a man in a de facto relationship. The applicant for infertility treatment was a single woman who was not living in a de facto relationship. After holding that the infertility treatment was a “service” within the meaning of s 22 of the SD Act, and s 8(1) of the IFT Act prevented Dr McBain from providing the service to the woman because of her status as a single woman, Sundberg J held that s 8(1) was directly inconsistent with s 22 of the SD Act (which made it unlawful to refuse to provide services to a person on the ground of the person’s marital status). His Honour held that the infertility procedure was a “service” to which s 22 of the SD Act applied. There was an inconsistency with the SD Act and by operation of s 109 of the Constitution, the IFT Act was invalid to the extent of the inconsistency.

119    Justice Sundberg rejected a contention that s 22 of the SD Act had no application because of the operation of s 32 of that legislation. That provision provides, in effect, an exemption from the operation of Divs 1 or 2 of the SD Act in relation to “the provision of services the nature of which is such that they can only be provided to members of one sex”. His Honour found that s 32 looks to the “nature” of the service provided, which fell to be determined by reference to the IFT Act. His Honour noted at [15] that there was no breakdown in that legislation of the eligibility requirements for each type of infertility treatment. Rather, the Parliament had effectively “characterised the treatments as being of the same general nature, namely, treatments aimed at overcoming obstacles to pregnancy”. This led to Sundberg J’s conclusion that “the nature of these treatments is such that they are capable of being provided to both sexes”. His Honour said at [15]:

… The service is the “treatment procedure” ‑ the artificial insemination of a woman with sperm from a man who is not her husband, or a fertilisation procedure. The reason for undertaking either of these procedures may be because of some physical feature of a man or a woman. The fertilisation procedure may involve taking a sound egg, capable of fulfilling its potentiality in ordinary circumstances, placing it in vitro, and fertilising it in this environment to solve a problem associated with the woman’s husband. Whether the primary beneficiary of the treatment is a man or a woman, in the typical case the service is directed to achieving the desire of the couple to have a child. The fact that for biological reasons the embryo is placed into the body of the woman is but the ultimate aspect of the procedure. To concentrate solely on that aspect is not to view the overall “nature” of the service. The vice of the argument is that in order to bring the case within s 32 it is necessary to select from the scope of the service only that part of it that is provided on or with the assistance of a woman. Section 32 is intended to deal with services which are capable of being provided only to a man or only to a woman. The example given in argument is apt ‑ a man who tells his doctor he wants a hysterectomy.

120    Justice Sundberg noted that s 8(1) was not the only provision in the IFT Act which was affected by the inconsistency with s 22 of the SD Act. That was because there were several other provisions in the State legislation which operated on the basis that a woman had a “husband” and required conduct by the woman and her husband or conduct by others towards the woman and her husband. One such example was s 10(1) which required the doctor in charge of the treatment to give the woman and her husband a list of approved counsellors, and enough information about the procedure and the alternatives to the procedure to enable them to make an informed decision about whether or not to undergo the procedure. His Honour held at [20] that such provisions were also inconsistent with s 22 of the SD Act because they are in part dependent on the operation of s 8(1) of the IFT Act. Accordingly, to that extent, they also were inoperative by operation of s 109 but, otherwise, were unaffected.

121    In those circumstances, Sundberg J granted declaratory relief to the following effect:

(a)    that s 8(1) of the IFT Act, to the extent to which it restricts the availability of any treatment procedure regulated by it to a woman who is married and living with her husband on a genuine domestic basis, or with a man in a de facto relationship as defined in s 3(1), is inconsistent with s 22 of the SD Act and is inoperative by reason of s 109 of the Constitution.

(b)    that provisions such as s 10(1) (and other provisions in the IFT Act listed in a schedule), to the extent that they are dependent upon the inoperative operation of s 8(1), are also inconsistent with s 22 of the SD Act.

122    No party suggested that McBain was clearly wrong. Although the reasoning on the substantive issue is directed to the now repealed IFT Act, I consider that it applies equally to the relevant provisions of the ART Act. Accordingly, in the interest of comity, McBain should be applied and, consequently, the third matter raised by amici curiae must be rejected.

123    I accept the submission by amici curiae that s 6 of the Interpretation of Legislation Act 1984 (Vic) does not operate to avoid a finding of inconsistency for the purposes of s 109 of the Constitution. That provision, which is in similar terms to the equivalent provision in South Australia which was considered in Pearce, provides that legislation shall be construed so as not to exceed the legislative power of the State of Victoria. As amici curiae correctly pointed out, that is not relevant to the task under s 109 which focuses upon a comparison between the texts of the State and Commonwealth laws “as properly construed” (see Momcilovic at [242] per Gummow J (with whom Bell J agreed)). The inconsistency under s 109 is not the product of the State having acted beyond its legislative power, but rather from the fact that it has legislated in an area of shared power with the Commonwealth and in a manner that is inconsistent with a Commonwealth enactment which is also within power.

124    The relevant parties were agreed that, if there was a finding of direct discrimination, it is unnecessary to determine the applicant’s alternative claim of indirect discrimination.

Appropriate relief

125    The issue now is the relief which the Court should grant having concluded that s 10(1)(a) is inconsistent with s 22 of the SD Act and, accordingly, to that extent is invalid or inoperative by operation of s 109 of the Constitution.

126    It is common ground that the Court has power under s 21 of the Federal Court of Australia Act 1976 (Cth) to make a declaration in civil proceedings in relation to a matter in which it has original jurisdiction and that the discretion must be exercised judicially. The parties have also drawn the Court’s attention to caselaw which guides the exercise of that discretion, including the cases which are referred to in [60] above. The grant of declaratory orders should not go beyond resolving the controversy between the parties and should not extend to issues that have not arisen for determination in the current proceeding.

127    If the Court upheld the s 109 Constitutional issue, the applicant urged the Court to grant a declaratory order in broad terms not confined to her individual circumstances, but directed to the class of women who are married but living separately and apart from their spouse and who wish to undergo a treatment procedure using donor sperm. In support of that contention, the applicant relied upon the breadth of the declaratory relief granted in both McBain and Pearce.

128    The relief which Sundberg J granted in McBain is set out in [121] above. It is relevant to also note the relief which was granted by the Full Court of the Supreme Court of South Australia in Pearce.

129    Pearce raised the issue of inconsistency between certain provisions in the Reproductive Technology Act 1988 (SA) (the RT Act) and s 22 of the SD Act. That case also involved a woman who was separated from her husband and resided alone and wished to undertake an IVF program. Section 13 of the RT Act provided that a licence to carry out an artificial fertilisation procedure had a condition which prevented such a procedure being applied except for the benefit of married couples. “Married couple” was defined in s 13(4) as including two people who were in a de facto relationship and had been so for at least five years. Justice Williams (with whom Bollen and Millhouse JJ agreed) accepted the parties’ agreed position that there was a direct inconsistency between the South Australian legislation and the Commonwealth SD Act. His Honour said at 490-1:

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 s 13(3)(b) prohibits the application of IVF (and other artificial fertilisation 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 s 13(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 s 22(1) of the Sex Discrimination Act having regard to s 6(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 s 109 of the Constitution.

130    In reaching that view, the Court also took into account s 22(a) of the Acts Interpretation Act 1915 (SA), which required legislation to be construed so as not to exceed the legislative power of the State, as well as providing that if any provision would, but for s 22(a), exceed the power of the State, such provision is nevertheless a valid enactment to the extent to which it does not exceed that power.

131    In Pearce, a declaratory order was made in the following terms:

Declare that in so far as s 13 of the Reproductive Technology Act restricts the application of artificial fertilisation procedures under licence except for the benefit of married couples (including the class of persons described in s 13(4)) the same is inconsistent with the provisions of the Sex Discrimination Act and to such extent is invalid by virtue of the operation of s 109 of the Constitution.

132    I accept the submission of the Attorney-General that the general practice of the Courts in matters concerning invalidity arising by operation of s 109 of the Constitution is to grant declaratory relief by reference to the circumstances of the party seeking the declaration, rather than in more general terms. I acknowledge that broader declaratory relief was granted in both McBain and Pearce, but those cases reflect their particular facts. It is also notable that both were decided before the High Court’s decision in Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16; 209 CLR 372 (see, in particular, what was said by Gleeson CJ at [22]-[25], Gaudron and Gummow JJ at [40] and [42] and Hayne J at [246]). The applicant pointed to what McHugh J said in his dissenting judgment at [118] regarding the precedential effect of the declaratory order made by Sundberg J in McBain. In my respectful view, that statement simply reflects the particular circumstances of that litigation and the fact that such an order had in fact been made by the primary judge and may have been relied upon by non-parties to that proceeding. The passage does not encourage the making of a broad declaratory order which is directed to women other than the applicant.

133    The amended declaratory relief sought by the applicant in prayer 2 of the amended originating application goes beyond the applicant’s particular circumstances in that it is directed generally to all women who seek a treatment procedure using donor sperm and who are living separately and apart from their spouse.

134    The application of s 10(1)(a) of the ART Act to women in that broader class has not been tested or resolved in these proceedings. Although I accept that the applicant has a real interest in determining the validity of s 10(1)(a) in her individual circumstances, I do not accept that she has a “real interest” in the broader relief which she seeks and I decline to grant relief in those terms. Rather, it is appropriate to grant relief which specifically refers to the operation of s 109 of the Constitution, but it should be confined to the operation of s 109 vis-à-vis the inconsistency between s 10(1)(a) of the ART Act and s 22 of the SD Act by reference to the applicant alone. I note that declaratory orders with a similarly confined effect were made in University of Wollongong v Metwally [1984] HCA 74; 158 CLR 447; Telstra Corporation Ltd v Hurstville City Council [2002] FCAFC 92; 118 FCR 198 and Optus Networks Pty Ltd v Rockdale City Council [2005] FCA 200; 144 FCR 158.

135    It is well established that the reference in s 109 to invalidity is properly understood as a reference to a State law being inoperative to the extent that there is any inconsistency with a Commonwealth law (see, for example, Lamb v Cockatoo Docks and Engineering Co Pty Ltd (1960) 61 SR (NSW) 459 at 468 and Carter v Egg and Egg Pulp Marketing Board (Vic) (1942) 66 CLR 557 at 573 per Latham CJ and at 599 per Williams J; and Western Australia v The Commonwealth (the Native Title Act Case) [1995] HCA 47; 183 CLR 373 at 451 per Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ).

136    For these reasons, the appropriate declaratory orders are as follows:

1.    The applicant may undergo a “treatment procedure” as defined in the Assisted Reproductive Treatment Act 2008 (Vic) without the consent of her husband.

2.    Section 10(1)(a) of the Assisted Reproductive Treatment Act 2008 (Vic) is invalid and inoperative to the extent that it requires the applicant to obtain her estranged husband’s consent to the applicant undergoing a “treatment procedure” as defined in that Act.

Miscellaneous matters

(a) Non-joinder of applicant’s estranged husband

137    As noted above, the Court sought and obtained further assistance on the ramifications, if any, of the applicant not having joined her estranged husband as a party to the proceeding. In News Limited, the Full Court described the relevant principles concerning joinder and the effect of non-joinder on relief at 525:

In our opinion, the question should be decided according to the test proposed by Lord Diplock [in Pegang Mining Co Ltd v Choong Sam [1969] 2 MLJ 52 at 55-56]. The test involves matters of degree, and ultimately judgment, having regard to the practical realities of the case, and the nature and value of the rights and liabilities of the third party which might be directly affected. The requirement that a third party's rights against, or liability to, any party to the proceedings be directly affected is an important qualification that recognises that many orders of a court are likely to affect other people to a greater or lesser extent. This is particularly so with remedies in the nature of an injunction: see Silktone Pty Ltd v Devreal Capital Pty Ltd (1990) 21 NSWLR 317 at 322 per Kirby P. The requirement of a direct effect on rights or liabilities differentiates the case where a person ought to be joined, from other cases where the effect of the order on non-parties can be characterised as only indirect or consequential.

138    Having given anxious consideration to the ramifications of non-joinder of the applicant’s husband and, in particular, to the terms of the relief to be granted to the applicant, I am satisfied for the following reasons that it is appropriate to make the two declaratory orders. First, the making of those orders does not directly affect the husband’s legal rights or liabilities. I accept the applicant’s submission that the requirement of consent under s 10(1)(a) does not create a legal right on the part of the husband. In any event, even if it did, that right is rendered inoperative in the circumstances of this case by the operation of s 109 of the Constitution. Furthermore, the undertakings which the applicant has proffered to the Court, which are noted at the beginning of the judgment, should operate to prevent the husband being imputed with any parental rights, obligations and responsibilities in respect of a child born to the applicant as a result of IVF and using donor sperm, including under legislation such as the Family Law Act 1975 (Cth) and Victorian legislation relating to the registration of births (as to which, I accept the applicant’s submissions).

139    I also accept the applicant’s submission that, as matters stand at present, the potential for statutory presumptions to apply which affect the applicant’s estranged husband will depend upon the occurrence of future events which may or may not occur and where the timing is uncertain, including the timing of the birth of any child and the timing of her divorce. As matters stand at present, the potential enlivenment of statutory presumptions is hypothetical and cannot be said to ground any right or liability on the part of the estranged husband which is directly affected by the making of the declaratory orders in this proceeding.

140    Secondly, no adverse findings of fact have been made in respect of the estranged husband which might give rise to procedural fairness obligations. Nothing said in these reasons for judgment is intended to harm his reputation. The Court has also been careful to avoid stating any information which might lead to his identification.

141    Thirdly, as noted in the passage from News Limited which is set out at [137] above, the relevant test includes consideration of the “practical realities of the case”. That must include the unusual circumstances of this particular case and the urgency with which it has been brought and determined. Another relevant practical consideration is the valuable role played by amici curiae in drawing the Court’s attention to, and making detailed submissions on, relevant matters such as whether or not the husband ought to have been joined.

(b) Is additional evidence required from the applicant?

142    Amici curiae raised for the Court’s consideration whether further evidence should be provided by the applicant to establish that she is still married, is not divorced but is separated from her husband and intends to file for a divorce as soon as she can. I do not consider that this is necessary. I accept the applicant’s evidence on these matters.

Costs

143    The relevant parties were agreed that there should be no order as to costs.

Conclusion

144    Orders will be made to give effect to these reasons for judgment. The Court expresses its profound gratitude to the President of the Victorian Bar Association and to Mr Wilson and Ms Fitzgerald who nobly agreed to assist the Court in the role of amici curiae. Their participation has greatly assisted the Court and has enabled the Court to give a prompt judgment in recognition of the urgency of the proceeding.

Associate:

Dated:    21 September 2018