Mw, Dd, Ta & Ab v Royal Women's Hospital, Freemasons Hospital and Victoria [1997] HREOCA 6 (5 March 1997)

Human Rights and Equal Opportunity Commission

Sex Discrimination Act 1984 (Cth)

No: H96/26, 96/33, 96/48

Between:

MW, DD, TA and AB.

Complainants

And

The Royal Women's Hospital

First Respondent

Freemasons Hospital

Second Respondent

State of Victoria

Third Respondent

REASONS FOR THE DECISION

OF THE INQUIRY COMMISSIONER

MS ANTONIA KOHL

Date of Decision: 5 March 1997

Hearing: Melbourne

Date of Hearing: 26 July 1996

Appearances: Ms M Richards of Counsel for the Complainants

Mr B Keon-Cohen of Counsel for the First and Second Respondents instructed by Phillips Fox

Mr D Habersberger QC and Ms P Tate of Counsel instructed by the Crown Solicitor for the Third Respondent.

1. INTRODUCTION

This is a public inquiry by the Human Rights and Equal Opportunity Commission pursuant to s.59(1) of the Sex Discrimination Act 1984 (Cth) (`the Act') into four complaints of discrimination on the grounds of marital status. The complaints were lodged between 1993 and 1995 with the Victorian Equal Opportunity Commission (`VEOC') acting as agent for the Human Rights and Equal Opportunity Commission (`the Commission') under s.16 of the Human Rights and Equal Opportunity Commission Act 1986 (Cth).

The complainants allege that they were treated less favourably than married persons when they were refused in vitro fertilization ('IVF') treatment because they were not married. The complaints are brought against two hospitals providing IVF treatment pursuant to ss.22 and 26 of the Act. The hospitals in turn denied that the discrimination was unlawful and argued that the Infertility (Medical Procedures) Act 1984 (Vic), a Victorian law did not permit them to offer IVF treatment to an unmarried woman.

The complaints were referred to the Commission by the Sex Discrimination Commissioner for inquiry pursuant to s.57(1) of the Act. The inquiry was conducted by the Commission in Melbourne on 26 July 1996.

2. PRELIMINARY MATTERS

2.1 Suppression of names

Prior to the inquiry and at a directions conference convened on 28 May 1996, I directed that the names of the complainants be suppressed pursuant to s.67(1)(c) of the Act and that each complainant be referred to by her or his initials. This decision will reflect that direction.

2.2 Complaints heard together

At the conference on 28 May 1996, I also directed that the four complaints be heard together pursuant to s.61 of the Act.

2.3 Joinder of the State of Victoria

Before the inquiry commenced, I indicated to the parties that based on the material contained in the referral reports and the material submitted by the parties in preparation for the inquiry, the Commission had formed the opinion that the inquiry may be assisted by the participation of the State of Victoria. On 30 April 1996, I wrote to the Attorney-General for the State of Victoria informing her of the Commission's preliminary view and invited the State of Victoria to participate in a directions conference on 28 May 1996 and to make such submissions as it thought appropriate on the issue of whether the State of Victoria should be joined as a party pursuant to s.62 of the Act. On 27 May 1996, the Commission received a letter from the Victorian Government Solicitor informing the Commission that the State of Victoria did not wish to be joined as a party and did not intend participating in the directions conference on 28 May 1996.

On 28 May 1996, I received submissions from the parties on the question of whether the State of Victoria should be joined. Ms AB indicated she had initially lodged her complaint against the Attorney-General but noted that the Attorney had not been named as a respondent when the matter had been referred by the Sex Discrimination Commissioner to the Commission. All parties said that they wished the State of Victoria to participate in the inquiry because the complaints and the actions of the first and second respondents raised issues about the operation of a Victorian law.

On 5 June 1996, I wrote to the Victorian Government Solicitor informing him of the directions made at the conference on 28 May 1996 and that I had formed the opinion that the State of Victoria ought to be joined as a party to the proceedings. I requested that the Victorian Government Solicitor furnish written submissions to the Commission on the question by 21 June 1996. The Commission received those submissions on 19 June 1996. I then gave the parties an opportunity to respond.

After considering the matters raised in the submissions of the State of Victoria and the parties, I decided to join the State of Victoria as a party to the four complaints. On 12 July 1996, I informed the parties and the Victorian Government Solicitor in writing that I had decided to join State of Victoria as a party to the inquiry.

2.4 The complaint of Mr TA

During the course of the inquiry, the complainant Mr TA indicated that he wished to withdraw his complaint and that the inquiry into his complaint no longer be continued. In accordance with s.59(2) of the Act, I did not continue the inquiry with respect to his complaint. The following reasons relate only to the complaints of Ms MW, Ms DD and Ms AB.

3. THE LAW

There are two specific pieces of legislation relevant to the inquiry. They are as follows:

3.1 Sex Discrimination Act 1984 (Cth)

The following provisions of legislation are applicable:

Section 6 - Definition of marital status discrimination.

s.6.(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 he ground of the marital status of the aggrieved person if, by reason of:

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

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

(c) a characteristic that is generally imputed to persons of the marital 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 status.

Section 22 - The provision of goods and services.

s.22. (1) It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person's sex, marital status, pregnancy or potential pregnancy:

(a) by refusing to provide the other person with those goods or services or to make those facilities available to the other person;

(b) in the terms or conditions on which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person; or

(c) in the manner in which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person.

(2) This section binds the Crown in right of a State.

Section 26 - The administration of Commonwealth laws and programs.

s.26. (1) It is unlawful for a person who performs any function or exercises any power under a Commonwealth law or for the purposes of a Commonwealth program, or has any other responsibility for the administration of a Commonwealth law or the conduct of a Commonwealth program, to discriminate against another person, on the ground of the other person's sex, marital status, pregnancy or potential pregnancy, in the performance of that function, the exercise of that power or the fulfilment of that responsibility.

(2) This section binds the Crown in right of a State.

Section 105 - Liability of persons involved in unlawful acts.

s.105. A person who causes, instructs, induces, aids or permits another person to do an act that is unlawful under Division 1 or 2 of Part II shall, for the purposes of this Act, be taken also to have done the act.

3.2 Infertility (Medical Procedures) Act 1984 (Vic)

The relevant Victorian law for the purposes of these complaints is the Infertility (Medical Procedures) Act 1984 (Vic). This Act is to be repealed and replaced by the Infertility Treatment Act 1995 (Vic). The Infertility Treatment Act 1995 (Vic) has yet to come into operation and pending any proclamation, it will come into effect on 27 June 1997.

The relevant provisions of the Infertility (Medical Procedures) Act 1984 are as follows:

Definitions

s.3.(1) In this Act unless the contrary intention appears -

....

"Approved hospital" means a scheduled hospital or a private hospital that is for the time being approved under s.7 as a place at which one or more relevant procedures or the procedure of artificial insemination may be carried out.

....

"Designated officer" in relation to a hospital means -

(a) a person for the time being appointed under s.8 to be a designated officer for that hospital; or

(b) where at any time, in relation to a hospital, there is no such person, the medical superintendent or, if there is no medical superintendent, the principal; executive officer of the hospital or, while the medical superintendent or principal executive officer, as the case may be, is absent from or not on duty at the hospital, a person acting in the place of the medical superintendent or principal executive officer.

"Fertilization procedure" means -

(a) a procedure to which section 10, 11, 12, 13 or 13A applies; or

(b) any other procedure (other than the procedure of artificial insemination) for implanting in the body of a woman -

(i) an ovum produced by that woman or by another woman, whether or not it is fertilized outside the body of the first-mentioned woman; or

(ii) an embryo derived from an ovum produced by that women or by another woman whether or not it is fertilized outside the body of the first-mentioned woman.

(2) In this Act -

(a) a reference to a married woman includes a reference to a woman -

(i) who, at the commencement of this section, is living with a man as his wife on a bona fide domestic basis although not married to him; and

(ii) who, before the commencement of this section, had undergone examination or treatment with a view to the carrying out by a medical practitioner of a procedure that, if carried out after that commencement, would be a relevant procedure; and

(b) a reference to the husband of a woman includes, in relation to a woman to whom paragraph (a) applies, a reference to the man with whom the woman is, at the commencement of this section, living as his wife on a bona fide domestic basis but does not include a reference to the man (if any) to whom the woman is, at that time, actually married.

Application of Act

s.4 A provision of section 9A, 10, 11, 12, 13 or 13A does not apply to or in respect of anything done or suffered before the date on which the provision came into operation and, in relation to a relevant procedure carried out within six months after that date, a reference in those sections to twelve months shall be construed as a reference to six months.

Procedure not to be carried out except in accordance with this Act.

s.5 (1) Subject to sub-section (2), a person shall not carry out a fertilization procedure.

Penalty: 100 penalty units or imprisonment for four years.

(2) Sub-section (1) does not apply to a person who carries out a relevant procedure in accordance with this Act

Approval of hospitals.

s.7 (1) The Committee of a scheduled hospital or the proprietor of a private hospital may make application to the Minister for approval of the hospital as a place at which relevant procedures of the class specified in the application may be carried out.

(2) An application under sub-section (1) shall be made in the form prescribed for relevant procedures to which section 9A, 10, 11, 12, 13 or 10A applies or for the procedure of artificial insemination, whichever is applicable.

(3) The Minister may, if he is satisfied that the scheduled hospital or the private hospital has facilities appropriate for the carrying out of relevant procedures of the class specified in the application, by instrument in writing approve the hospital as a place at which procedures of that class may be carried out, subject to such terms and conditions as are specified in the instrument.

(4) The Minister may, at any time be notice in writing given to the Committee of a scheduled hospital or the proprietor of a private hospital vary the terms and conditions to which an approval of that hospital as a place at which relevant procedures of the class specified in the notice may be carried out is subject.

(5) where the Minister is satisfied that -

(a) a scheduled hospital;

(b) the Committee or designated officer of a scheduled hospital;

(c) a private hospital; or

(d) the proprietor or designated officer of a private hospital -

has committed an offence against this Act or the regulations or has failed to comply with a term or condition to which the approval of that hospital under this section is subject, the Minister may, by notice in writing given to the Committee of the scheduled hospital or proprietor of the private hospital, cancel the approval of the hospital as a place at which relevant procedures of the class specified in the notice may be carried out.

(6) Where the approval of a scheduled hospital or a private hospital is cancelled under this section, the Minister may give such directions as he determines in relation to the control and management of the hospital, the continuation of treatment of patients, use of gametes held by the hospital for relevant procedures (including directions for transfer of gametes to an approved hospital), keeping of records and other relevant matters.

(7) In this section, a reference to a relevant procedure includes a reference to the procedure of artificial insemination.

Designated officer.

s.8 (1) The Committee of a scheduled hospital, being an approved hospital, or the proprietor of a private hospital, being an approved hospital, may, by instrument in writing, appoint such persons, being medical practitioners or other persons, as the Committee or proprietor considers appropriate to be, for the purposes of this Act, designated officers for the hospital.

(2) The power under this section to appoint a person as a designated officer includes the power, by instrument in writing, to remove a person so appointed.

Procedure of in vitro fertilization - no donors.

s.10 (1) This section applies to the procedure of implanting in the womb of a woman an embryo derived from an ovum produced by her and fertilised outside her body be semen produced by her husband.

(2) A procedure to which this section applies shall not be carried out at a place other than a hospital that is approved by the Minister as a place at which such procedures may be carried out.

(3) A procedure to which this section applies shall not be carried out unless:

(a) the woman in relation to whom the procedure is carried out is a married woman;

(b) the women and her husband each consents in writing to the carrying out of the procedure;

(c) not less than twelve months before the carrying out of the procedure, the woman and her husband had begun to undergo, or have undergone, such examination or treatment by a medical practitioner (other than the medical practitioner by whom the procedure is to be carried out) as might reasonably be expected to establish whether or not a procedure other than a fertilization procedure might cause the woman to become pregnant;

(d) as a result of that examination or treatment, a medical practitioner (other than the medical practitioner by whom the procedure is to be carried out) is satisfied that it is reasonably established that the woman is unlikely to become pregnant as the result of a procedure other than a fertilization procedure; and

(e) the medical practitioner by whom the procedure is to be carried out is satisfied:

(i) that the woman and her husband have received counselling, including counselling in relation to prescribed matters, from an approved counsellor;

(ii) that an approved counsellor will be available to give further counsel to the woman and her husband after the procedure is carried out.

4. THE COMPLAINANTS' EVIDENCE

4.1 Complaint One - Ms MW

The complainant, Ms MW lodged a complaint with VEOC against the Melbourne IVF Centre at the Royal Women's Hospital Melbourne on 21 April 1993 pursuant to s.50 of the Act. Ms MW's complaint was referred to the Commission for inquiry by the Sex Discrimination Commissioner on 7 March 1996.

Ms MW is 38 years of age. She has been living with Mr MC in a de-facto relationship since 1977. Ms MW and her partner made a conscious decision not to get married as they both had strong objections to the institution of marriage. This decision was against the wishes of both their parents and created tension within their families. Ms MW's opposition to the concept of marriage has been expressed publicly in word and deed. She believes that marriage involves a loss of identity and independence and results in women not being treated equally.

Ms MW has had a number of miscarriages and ectopic pregnancies which have resulted in damage to her fallopian tubes. This damage prevents her being able to conceive a child naturally. Ms MW was therefore referred by her gynaecologist to the Melbourne IVF Centre at the Royal Women's Hospital.

On the 26 February 1993, Ms MW saw a doctor at the Melbourne IVF Centre and discussed her interest in the program. In this meeting Ms MW was told to make a further appointment for her and her partner to attend the Centre.

At the next meeting Ms MW and her partner were questioned about their marital status. On discovering they were not married the medical practitioner told them that MW could not participate on the IVF program. Both Ms MW and her partner expressed shock at this requirement.

After she was advised of the marital pre-requisite Ms MW said she was distressed, embarrassed and humiliated.

Eventually and solely for the purpose of entering the IVF program, Ms MW and her partner were married. They have kept the fact of their marriage confidential from everyone except the two people required by law to witness the ceremony. The reason for this is because marriage is in contradiction to Ms MW and her partner's beliefs.

Since marrying Ms MW has been accepted into the IVF program and is currently using the facility at Monash.

4.1.1 Remedies sought by Ms MW

The remedies sought by Ms MW, if the complaint is substantiated, include a declaration and compensation.

Ms MW seeks a determination that the requirements of s.10 of the Infertility (Medical Procedures) Act 1984 do not justify conduct in breach of s.22 of the Act.

MW also seeks compensation as follows:

(i) the emotional distress she suffered when told she could not participate in the IVF program because of her marital status;

(ii) the emotional distress she suffered at having to marry in order to participate in the IVF program; and

(iii) the cost of the wedding (including the registry fee, clothing, shoes and meals).

With respect to the costs connected with the wedding, during the inquiry Ms MW was not cross-examined by Counsel for the two hospitals but she was cross-examined by Counsel for the State of Victoria and his cross-examination related solely to her claim for damages and her claim for clothing and shoes bought for the wedding as follows:

Mr Habersberger: Ms W, no doubt you heard the questions I put to Mr TA, I think or maybe his partner that - referring to your situation where in fact you and your partner married and you in fact kept it secret.

MW: Yes.

Mr Habersberger: And you had just the minimal two witnesses. But nevertheless you made a claim for clothing and shoes for the wedding. Is that for you?

MW: Yes.

Mr Habersberger: And is that clothing that can be worn on other occasions?

MW: It is, but I mean its the sort of thing that I feel uncomfortable wearing because I remember why it was bought.

Mr Habersberger: Why was it necessary to buy new clothing at all?

MW: The witnesses that we asked were married. For them marriage was important and out of respect for them I felt it was necessary to be suitably dressed.

Mr Habersberger: I have no disagreement with that. All I'm here to disagree with is the suggestion that the State of Victoria should pay for that clothing.

MW: Well, it was because of the State of Victoria that we had to marry. We weren't marrying of our own free will.

Mr Habersberger: I understand that. All I'm suggesting is that if you want to buy new clothing and shoes, that's your choice.

MW: But they were bought for a wedding which we did not wish to engage in.

Mr Habersberger: And they can be worn on other occasions, is not that not true?

MW: Yes, certainly.

Mr Habersberger: There was another claim for meals for witnesses. That was your choice that you thought that was the right thing to do, no doubt?

MW: I did think it was the right thing to do, yes, because one of these witnesses had given up a day's work so we had imposed upon both of them.

Mr Habersberger: Transport, what was that for?

MW: For going to the registry office and then back to Williamstown. Also we had to pick up one of the witnesses.

4.2 Complaint Two - Ms DD

The complainants, Ms DD and Mr TA lodged their complaints with VEOC on 26 October 1993 against Freemasons Hospital and the Royal Women's Hospital pursuant to s.50 of the Act. Ms DD and Mr TA's complaints were referred to the Commission for an inquiry by the Sex Discrimination Commissioner on 21 January 1996.

Ms DD and Mr TA have lived in a stable de-facto relationship since January 1986. Their decision not to marry was made as a result of Ms DD's view that marriage is an anachronistic institution. This view of marriage was an integral part of her belief system. It was her desire to live a long and happy unmarried life with Mr TA.

Mr TA had a vasectomy in 1978. Notwithstanding his vasectomy Ms DD and Mr TA decided they wanted to have children and in 1990, Mr TA visited a surgeon to discuss the possibility of vasectomy reversal. The surgeon said it might be possible Mr TA was referred to a urologist at the Monash IVF Centre for a series of preparatory tests.

Mr TA had his first vasectomy reversal operation in February 1992. Sometime later he learned that the operation had been unsuccessful. After further tests Mr TA was referred in mid 1992 to Dr Andrew Speirs at the Freemasons Hospital. The second operation was done at the Royal Women's Hospital in February 1993 and was partially successful.

During the remainder of 1993, Ms DD and Mr TA continued to undergo tests preparatory to entering to the intro cytoplasmic sperm injection (ICSI) program through the Melbourne IVF Centre. Their decision to enter the program required thorough exploration of the risks. It was a difficult decision. Just before entering the treatment, Mr TA was telephoned by a staff member of the Melbourne IVF Centre who asked if they were married. He answered no and was told that IVF treatment would have to be stopped because of Victorian legislation.

Ms DD and Mr TA were deeply shocked. After almost four years of preparation for IVF treatment they found the treatment was not available to them. They felt anger distress, powerlessness and an overwhelming sadness at the prospects available to them that was - marriage, no possibility of children or interstate treatment.

After seeking medical and legal advice, Ms DD and Mr TA decided that due to financial constraints the only option available to them was to marry. They married in February 1994. The only people invited to the wedding were immediate family members. Their marriage resulted in the loss of a long standing friendship with someone who could not understand the reasons for their decision.

Since February 1994 they have undergone two IVF treatments without success.

4.2.1 Remedies sought by Ms DD

The remedies sought by Ms DD, if the complaint is substantiated, include a declaration and compensation.

Ms DD seeks a determination that s.10 of the Infertility (Medical Procedures) Act 1984 (Vic) does not justify conduct in breach of s.22 of the Act.

Ms DD seeks compensation as follows:

(i) the emotional distress caused by the denial of treatment to her because she was unmarried; and

(ii) the marriage and for the costs of the wedding, including the registry fee,

clothing, meals, transport, wedding cake, flowers, photographs and drinks.

Ms DD was cross-examined about the damages claimed for the wedding and the costs of the wedding including why it was necessary to purchase new clothing and meals. Mr Habersberger suggested that this was unnecessary. Ms DD replied:

"... we could have and we did in fact consider that and we considered perhaps just having someone come around to the house, like an insurance agent and sign the necessary documents but we felt in the long term that we couldn't burden ourselves with a long term secret. It was burdensome enough as it was, being forced in that position to be married and then the impending IVF treatment, that we felt that I guess we had to meet the expectations and the conventions of our friend, - of our family, sorry".

Neither Ms DD or Mr TA were cross-examined by Counsel for the hospitals about the manner in which they were informed that they were no longer eligible for IVF treatment.

4.3 Complaint Three - Ms AB

The complainant, Ms AB lodged a complaint with VEOC on 10 May 1995 against the Attorney-General for the State of Victoria and the Freemasons Hospital pursuant to s.50 of the Act. Ms AB's complaint was referred to the Commission for inquiry by the Sex Discrimination Commissioner on 14 February 1996.

Ms AB has been living with her male partner in a stable de-facto relationship for over 7 years. They have both been married before and have no wish to re-marry.

In 1993, Ms AB and her partner decided that they wanted to have children. By mid 1994, Ms AB had not become pregnant and the couple consulted their general practitioner who recommended they undergo various fertility tests. After undergoing the tests and receiving the results the general practitioner referred them to Dr Andrew Speirs at the Melbourne IVF Centre at the Freemasons Hospital.

They met with Dr Speirs on 5 September 1994. Whilst taking their details, he commented that they had different surnames. He then asked whether they were married. Ms AB told him they were not. Dr Speirs then explained that State laws prevented him and the Freemasons Hospital from offering them IVF treatment and that the Hospital was afraid of prosecution.

Dr Speirs ran tests to ascertain whether there were any other reasons which might prevent Ms AB and her partner participating in the IVF program. As a result of those tests Ms AB was advised that there was no reason, other than her marital status which would preclude her entry to the program. He suggested that Ms AB and her partner seek treatment in either Albury or Sydney.

Both Ms AB and her partner were shocked to be denied treatment because they were not married. The decision to commence IVF treatment had not been made lightly. At the time she learned she could not go on the IVF program because she was not married Ms AB was mentally committed to commencing the treatment straightaway. She found it difficult to re-adjust her expectations. She was extremely angry and emotional about the situation.

After considering her position Ms AB decided to undergo treatment in Sydney. This has required, and will require, her and her partner incurring substantial travel and accommodation costs. Ms AB is self employed and her absence from Melbourne in order to undergo treatment in Sydney would cause interruptions to her business and loss of income.

4.3.1 Remedies sought by Ms AB

The remedies sought by Ms AB include two declarations and compensation.

Ms AB seeks a declaration that the requirements of s.10 of the Infertility (Medical Procedures) Act 1984 (Vic), to be replaced by s.8 of the Infertility Treatment Act 1995 (Vic), that require women to be married in order to have access to the IVF program, do not justify conduct in breach of s.22 of the Act.

She also seeks a determination that the hospitals should cease to withhold in vitro fertilization treatment from her.

Ms AB claims compensation for the interruptions to her business and loss of income as follows:

(i) Travel and accommodation costs to date

4 return airfares Melbourne to Sydney $ 2,072.00

2 night accommodation in Sydney for two $ 420.00

(ii) Estimated future travel and accommodation costs

2 return airfares to Sydney $ 1,036.00

18 nights accommodation in Sydney $ 3,600.00

(iii) Lost income

AB's minimum daily rate is $1,500, and

hopes to be 50% occupied during the 10

business days

$ 7,500.00

Total loss $14,628.00

Ms AB was not cross-examined by Counsel for the hospitals. She was cross-examined by Mr Habersberger, Counsel for the State of Victoria. The cross-examination related to her claim for damages for costs of travel, accommodation and loss of income.

5. THE RESPONDENTS' EVIDENCE

5.1 Dr Andrew Speirs

Both the complainants and the first and second respondents sought to call Dr Speirs as a witness in this inquiry.

Dr Andrew Lennox Speirs is a specialist fertility gynaecologist and has been the director of the Reproductive Biology Unit at the Royal Women's Hospital since mid 1995. He has been on the staff of the Royal Women's Hospital since 1977. He is also a consultant to the Freemasons Hospital and at the relevant time was the `designated officer' for Freemasons Hospital with respect to its IVF program. It was not disputed that Dr Speirs is an expert in the area of infertility treatment including intra cytoplasmic sperm injection (ICSI).

In addition to a statement of agreed facts, Dr Speirs gave oral evidence in which he stated that it was his understanding that under the Infertility (Medical Procedures) Act 1984 that it was a condition of the licence to provide IVF services that no treatment could be lawfully provided to couples who were not lawfully married.

Dr Speirs was cross-examined by Counsel for the complainants about a wide range of matters concerning the seriousness of the decision of any couple to undergo IVF treatment, the degree of trauma which may arise for a couple when they find they are infertile and the additional stress which may flow on being assessed as not eligible for treatment because of their marital status. He told the Commission that it was possible for a couple to be treated for 3 or 4 years before their marital status was raised.

Ms Richards: You gave some evidence that you had quite a large number of couples in similar situations to the complainants in this case. Would you agree with me that to find out at a stage where they have already made a decision to enter into IVF treatment that they have to be married and that they are not permitted to commence the treatment unless or until they are married simply adds to the stress and the difficulty of what they are already experiencing?

Dr Speirs: I doubt if that happens. So the question to me doesn't seem a terribly meaningful one because it doesn't happen like that. What happens is that patients have their options discussed with them in a way where the various options are these, "For instance, we could have reversal of a vasectomy or we could have IVF, however if you choose IVF in Victoria you need to be married." So it comes along gently. Couples may well choose one treatment and use it for a while and they may be told, "Look, it's not possible but things are not looking good. What are the chances, what are the choices now?" So it comes more gently than you have alluded to in your question.

Ms Richards: Each of the complainants in this case, two of whom you treated or three of whom you treated, say that they were only told that they had to be married after they had made the decision to enter into IVF treatment. Now, this happened some years ago. Are you able to contradict what they say about that?

Dr Speirs: No, I wouldn't contradict them.

Dr Speirs gave evidence that marital status was not relevant in terms of the medical treatment but in answer to questions of Counsel for the hospitals, he said:

Mr Keon-Cohen: Might I just ask you, doctor, medically, in terms of the appropriateness of treatment sought, is marriage at all relevant?

Dr Speirs: No, not the slightest. We feel that it's important that there be counselling, that couples be committed and all of those sorts of social things but marriage isn't a part of it as far as we're concerned but of course it is as far as the law and our licence is concerned.

Mr Keon-Cohen: In terms of the legal regime under which you operate in Victoria, do you have any comment about its appropriateness?

Dr Speirs: I think that that's a very personal thing. I see it from the point of view of the patients that I'm trying to help and in that way I don't feel it's appropriate but clearly it's the law and the Parliament has spoken.

5.2 Dr Graeme Ratten

Dr Ratten gave evidence on behalf of the Royal Women's Hospital. He is an obstetrician and clinical service manager at the Royal Women's Hospital, a public hospital in the State of Victoria. Dr Ratten gave evidence about his understanding of the obligations placed on hospitals providing IVF services by the Victorian Act. He said:

"Well, the Royal Women's Hospital feels that it must of course comply with Victorian law because we are dependent on the State Government for our funding and we don't want to lose our licence to do this work"

During cross-examination, Dr Ratten stated that the Royal Women's Hospital made a decision to obey the State legislation rather than the Act. He was cross-examined about legal advice which the Hospital may have received prior to 1993. He indicated that although he had attempted to locate relevant documents, he had been unable to find any documentation of this kind. He stated:

"I really don't feel that we have a choice because clearly the entire program and all the patients treated would be in jeopardy if, as we understand, our licence was withdrawn, the licence issued under Victorian law to do this treatment"

Dr Ratten was later cross-examined about the Medicare rebate scheme which operated at the Royal Women's Hospital in 1993 and how that scheme operated as at that date.

He was questioned about whether he had assumed the Commonwealth and State legislation could fit together. He reiterated his view that they did not seem to fit together but the consequences of breaching the State legislation would put the complete IVF program offered by the Royal Women's Hospital in jeopardy.

5.3 Mr Norman Wittingslow

Mr Wittingslow gave evidence on behalf of the second respondent. Mr Wittingslow is the Managing Director of the Freemasons Hospital and he is responsible for the administration of the hospital. The main thrust of Mr Wittingslow's evidence in chief was that the Hospital believed it had no choice but to comply with the Infertility (Medical Procedures) Act (Vic). In answer to questions put to him by Counsel for the hospitals, he said:

Mr Keon-Cohen: May I ask you what is the hospital's attitude to the laws of Victoria, particularly the laws dealing with the requirement of marital status for certain IVF procedures?

Mr Wittingslow: As far as the law in Victoria goes, we have to comply with it without any equivocation whatsoever. I as administrator of the hospital have a huge responsibility for all my staff and everyone else that comes into the place and to face a prospect of deregistration under that law would be something that the institution could not bear.

Mr Keon-Cohen: Have you heard the evidence today of the distress caused to the particular patients which are bringing this case upon discover that because they were not married, IVF procedures would be denied to them?

Mr Wittingslow: Yes.

Mr Keon-Cohen: What's your attitude as a hospital to that distress as against the laws you have to comply with?

Mr Wittingslow: I'm very sympathetic to their plight, quite frankly. I don't have a difficulty with that in any way, shape or form and I support it. However, as I mentioned before I have a higher responsibility, if you like, that I must comply with the law, given our registration under that law, and I simply have to comply with it because basically the ramifications of not complying are too horrendous for us to contemplate.

He was cross-examined by the complainants' Counsel and Counsel for State of Victoria as to the choices available to the Hospital. Mr Habersberger cross-examined for some time as to the choices available including alternative legal avenues and why the hospitals had not regarded the alternatives.

It is clear that the Freemasons Hospital did not seek legal advice prior to 1993 and nor was the matter raised by the ethics committee of that hospital. Throughout cross-examination, Mr Wittingslow remained adamant that the consequences of not obeying the State legislation were too drastic to contemplate.

Mr Wittingslow was also questioned about Medicare rebates. His evidence was that Commonwealth Medicare program was not applicable to the Freemasons Hospital because the rebate is between the doctor the patient and Medicare, not the hospital. He was later recalled and gave further evidence in chief as to the corporate status of the Freemasons Hospital.

The evidence presented by the first and second respondents affords no doubt that the sole reason that the hospitals refused to treat the unmarried women as part of the IVF program was because of concern that if they breached the Infertility (Medical Procedures) Act 1984 (Vic) they would lose their licence and face the possibility of each hospital and its staff being prosecuted.

6. FURTHER SUBMISSIONS

At the conclusion of the inquiry, there were several issues on which I directed that the parties furnish additional submissions, as follows:

(1) Assessment of Damages for loss of future income with respect to Ms AB.

(2) The State of Victoria's administration of the Infertility (Medical Procedures) Act.

(3) Legal status of Freemasons Hospital as at the dates that the acts of alleged discrimination occurred.

I have had regard to those submissions in the course of making my findings.

7. FINDINGS

Apart from the question of remedies, the parties agreed on the factual matters giving rise to these complaints. The three complainants are women who are in long term stable de facto relationships. They all sought medical treatment at the Royal Women's Hospital and/or Freemasons Hospital in Melbourne. The treatment sought was in vitro fertilization. This is a term used to describe a number of assisted reproductive techniques whereby eggs are fertilized outside the body. The techniques and procedures are regulated by the Infertility (Medical Procedures) Act 1984 (Vic) ("the Victorian Act"). Treatment may only be performed by approved hospitals and there are presently about 15 or 16 approved centres in Victoria which provide assisted reproductive fertility treatment.

Section 5 and 28 of the Victorian Act makes it an offence to perform a fertilization procedure other than in accordance with its provisions. The penalty for failing to comply with the Victorian Act is a $10,000 fine or four years imprisonment.

The fertilization procedures which are subject to regulation under the Victorian Act are set out in ss.10-13A. They include implanting embryos and gamete intra-fallopian transfer. Section 10 of the Act is the relevant provision for the purposes of this proceedings. It provides in s.10(3)(a) that the procedure may only be carried out if the woman is married.

None of the complainants were married at the time they sought IVF treatment. It is not disputed that the only reason they were not permitted to continue on the program was because they were not married. They otherwise satisfied all the requirements.

The hospitals acknowledged that the complainants were denied IVF treatment because they were not married. Their witnesses said they were sympathetic to the complainants' position but said that they could not jeopardise their licences with the State of Victoria or expose individual medical practitioners to the risk of fines or imprisonment by breaching the Victorian Act.

7.1 Unlawful discrimination in the provision of services - the complaints under s.22 of the Act

As has already been stated the first and second respondents are hospitals. They were in the business of providing health care as such they are subject to s.22 of the Act. The Royal Women's Hospital is a public institution and the Freemasons Hospital is a private hospital registered by the Victorian Department of Health and Community Services to provide a range of medical services.

For the purpose of s.22(1) of the Act, the `service' is IVF services provided at the two hospitals. The less favourable treatment is the act of refusing IVF services to the complainants on the basis that they were women who were not married. That refusal amounts to less favourable treatment as compared to women who are married.

I therefore find that the Royal Women's Hospital has unlawfully discriminated against Ms MW and Ms DD on the grounds of their marital status by refusing to provide them with IVF services prior to their respective marriages.

I also find that Freemasons Hospital unlawfully discriminated and continues to discriminate against Ms AB on the grounds of her marital status by its initial and continuing refusal to provide her with IVF treatment.

It was accepted during the course of the inquiry that the hospitals were responsible for the refusal of IVF services. No evidence was led about whether the medical practitioners were given directions by the hospitals to refuse treatment.

7.2 Unlawful discrimination in the administration of a Commonwealth program - the complaints under s.26 of the Act

Counsel for the complainants contended that the first and second respondents have breached s.26 of the Act since the hospitals were in receipt of Commonwealth funds from Medicare.

On the evidence it is clear that there is no contractual relationship between the Commonwealth and the Freemasons Hospital, with respect to Medicare (a Commonwealth program). Those relationships are between the doctor and patient, and the patient and Medicare. The patient is responsible for payment of accounts and may or may not have an entitlement to a refund from Medicare.

The matter is more complicated when one turns to the Royal Women's Hospital. The evidence led at the inquiry does not enable me to ascertain whether any Commonwealth funds were given to the Royal Women's Hospital and/or the nature of such funding.

In any event, it is not necessary for me to make a determination (which would require further evidence in this regard) as the complainants have already established a breach of the Act and an entitlement to remedy.

7.3 Defences

The first and second respondents submit that their conduct should be excused because their actions were in direct compliance with the Victorian Act. The defences which I may have regard to in determining whether there has been an unlawful act of marital status discrimination are to set out in Part II, Division 4 of the Act. Compliance with a State lawis not of itself a defence. This submission cannot succeed.

Arguments were put to the Commission concerning s.109 of the Constitution. In essence the complainants argue that s.22 of the Sex Discrimination Act and s.10 of the Infertility (Medical Procedures) Act 1984 (Vic) to be replaced by s.8 of the Infertility Treatment Act 1995 (Vic) are inconsistent. Accordingly, the Sex Discrimination Act, because it is an enactment of the Federal Parliament, prevails over the Victorian Act.

There is much merit in the complainants' argument and I note that the South Australian Full Court recently considered a similar matter. In Pearce -v- South Australian Health Commission and Ors (unreported, Supreme Court of South Australia - 10 September 1996), the issue before the Court was the effect of s.22 of the Sex Discrimination Act 1984 (Cth) with reference to s.13 of the Reproductive Technology Act 1988 (SA) which also provided that IVF treatment should not be provided to unmarried women. The plaintiff challenged the application of s.13(3) and (4) of the South Australian Act because she alleged they were inconsistent with the Sex Discrimination Act. The Court stated:

"In the present case it is not difficult to discern a "direct conflict" between the Commonwealth legislation and the South Australian legislation that term was used by Gibbs CJ in University of Wollongong -v- Metwally (1984) 138 CLR 447 at 455-456. It is not possible to obey the dictates of each law in circumstances where each applies."

The Court declared that s.13 of the SA Act was inconsistent with the provisions of the Sex Discrimination Act 1984 (Cth).

However, it is not for this Commission to determine whether or not there is an inconsistency between the Sex Discrimination Act 1984 (Cth) and the Infertility (Medical Procedures) Act 1984 (Vic), pursuant to s.109 of the Constitution. The Commission is not a court and does not have power to declare State legislation invalid. It is an administrative tribunal charged with the task of inquiring into complaints of discrimination and determining whether a respondent has engaged in conduct rendered unlawful by the Act and if so, what remedies are appropriate. The authorities on this issue are clear. In Australian Apple and Pear Marketing Board -v- Tonking (1942) 66 CLR 77 at 104 per Rich J:

"The questions whether an Act or the Federal Parliament is valid, and if so whether it involves any and what legal consequences, can be determined only by an exercise of the judicial power, either by this Court, by some other Federal court which the Federal Parliament has created or by some other court which it has invested with Federal jurisdiction in that behalf, or by some court when the question arises in proceedings before it and is not removed into this Court under ss.40 and 40A of the Judiciary Act 1903-1940. But nobody but a court can be invested with such jurisdiction."

Similarly in Re Adams and the Tax Agents Board (1976) 12 ALR 239 at 241 per Brennan J as he then was:

"Neither the Tribunal nor the Board is vested with that power to which the Constitution refers as the judicial power of the Commonwealth. It is to a court in which the judicial power of the Commonwealth is vested that questions of constitutional validity of federal legislation are submitted for decision. A definitive answer to a question of constitutional validity requires the exercise of that judicial power, and can therefore be given only by a court in which that judicial power is vested. .....

It follows that neither the Tribunal nor the Board can give a definitive answer to the question of constitutional validity. It is one thing to deny to the Tribunal and the Board the power definitively to answer the question; it is another thing to deny their competence to consider and to reach an opinion on the question. An opinion formed by an administrative body on such a question does not, however, produce any effect in point of law. It is incapable of adding to or subtracting from any authority, or purported authority, conferred by the challenged statute. It is incapable of affecting any legal requirement as to the exercise of an authority actually conferred upon the administrative opinion as to the constitutional validity of a provision purportedly conferring power when he said in Australian Communist Party -v- Commonwealth [1951] HCA 5; (1951) 83 CLR 1 at 258: "The validity of a law of an administrative act done under a law cannot be made to depend on the opinion of the lawmaker or the person who is to do the act, that the law or the consequence of the acts is within the constitutional power upon which the law in question itself depends for its validity."

Accordingly, I make no determination as to the validity of the Victorian Act.

7.4 Exemption under s.44 of the Act

During the hearing, Counsel for the first and second respondents sought an exemption pursuant to s.44 of the Act. Section 44 states:

44(1) The Commission may, on application by:

(a) a person, on that person's own behalf or on behalf of that person and another person or other persons;

(b) 2 or more persons, on their own behalf or on behalf of themselves and another person or other persons; or

(c) a person or persons included in a class of persons on behalf of the persons included in that class of persons; by instrument in writing, grant to the person, persons or class of persons, as the case may be, an exemption from the operation of a provision of Division 1 or 2, or paragraph 41 (1) (e), or paragraph 41B (1) (b), as specified in the instrument.

(2) The Commission may, on application by a person to, or in respect of, whom an exemption from a provision of Division 1 or 2, or paragraph 41 (1) (e), has been granted under subsection (1), being an application made before the expiration of the period for which that exemption was granted, grant a further exemption from the operation of that provision.

(3) An exemption, or further exemption, from the operation of a provision of Division 1 or 2, or paragraph 41 (1) (e) or paragraph 41B (1) (b):

(a) may be granted subject to such terms and conditions as are specified in the instrument;

(b) may be expressed to apply only in such circumstances, or in relation to such activities, as are specified in the instrument; and

(c) shall be granted for a specified period not exceeding 5 years.

The power to grant an exemption is found in Part II, Division 4 of the Act and is a power which is vested in the Commission. Accordingly, as a hearing Commissioner exercising powers under Part III of the Act and performing the function of conducting an inquiry into a matter referred by the Sex Discrimination Commissioner, I have no power to grant such an exemption. As there is presently no exemption in place for either hospital, it is not a matter I can consider.

7.5 Liability of the State of Victoria

The complainants argued that the State of Victoria should incur liability with respect to these complaints on two grounds.

First, that the Crown in the right of the State of Victoria assented to and proclaimed the Infertility (Medical Procedures) Act 1984 (Vic). The Victorian Act requires individual medical practitioners and hospitals to discriminate against unmarried women and their partners in the provision of IVF services. It was put to the Commission that if the complaints were substantiated then s.105 of the Act created ultimate responsibility on the part of the State of Victoria. The complainants submit that the very existence of the Victorian Act meant that the State of Victoria has caused, induced or instructed the hospitals to discriminate against the complainants.

Secondly, that the State of Victoria and in particular the Minister of Health performed functions in administering the Victorian Act and that his role in administering the laws attracted liability under ss.22 or 26 of the Act.

In response, the State of Victoria submitted that neither of the complainants nor the first or second respondents had identified any particular conduct by the State of Victoria for the purposes of ss.22, 26 or 105 which amounted to unlawful discrimination. Mr Wittingslow and Dr Ratten were cross-examined by Counsel for the State of Victoria about whether threats were made against the respondent hospitals that their licences would be withdrawn if they provided IVF services to unmarried women. From the evidence and the responses to the questions in cross-examination, I have concluded that no such action had occurred. The evidence given by the witnesses for the hospitals was clear that it was the effect of the Victorian Act which created the problem.

The only discriminatory conduct which may be attributed to the State of Victoria is therefore the Victorian Parliament enacting the legislation itself in 1984. The enactment of laws by the legislature is not a matter which this Commission has any jurisdiction to investigate and Mr Habersberger provided helpful submissions on this issue.

The issue of whether legislation of itself would constitute discrimination was considered by Chief Justice Gibbs in Gerhardy v Brown [1985] HCA 11; (1984-1985) 159 CLR 70 considered this issue with respect to the Racial Discrimination Act 1975 (Cth), at page 81 - he said:

"Section 9(1) makes it unlawful for a person to do an act of a kind which the sub-section describes. That sub-section does not make it unlawful for a State to make a law. It is true that s.6 of the RDA that Act binds the Crown in right of the Commonwealth and of each States and that by s.22(a) of the Acts Interpretation Act 1901 (Cth), as amended, unless the contrary intention appears "person" in any Act shall include a body politic or corporate as well as an individual. However, the words "it is unlawful for a person to do any act" do not naturally describe the steps taken by the legislature and the Governor of a State to pass a Bill into law. Indeed it would be not only surprising, but of very doubtful constitutional validity, for the Commonwealth Parliament to make it unlawful for a State Parliament to pass a law of a particular kind."

The issue was also mentioned by Mason CJ in the context of the Racial Discrimination Act and its interaction with Queensland statutes in Mabo (No. 1) -v- Queensland (1988) 166 CLR 86 at 196-197. He said:

"As it happens, the plaintiffs' argument based on s.9 must be rejected on another and more fundamental ground. Section 9(1) makes it unlawful for "a person to do any act" involving racial discrimination which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise of any human right or fundamental freedom in the field of public life. The references to "a person" and "any act" are inapposite to comprehend the enactment by the Parliament of Queensland of a statute. It would take a bold leap in statutory interpretation to conclude that the Commonwealth Parliament was addressing itself to the State legislatures. And, in any event, the Parliament of the Commonwealth does not possess legislative power to prohibit the Parliament of Queensland from enacting a law on a topic falling within a head of concurrent Commonwealth legislative power. Section 107 of the Constitution expressly preserves the power of the Parliament of the States except to the extent that they are exclusively vested in the Parliament of the Commonwealth or are withdrawn. The co-existence of Commonwealth and State legislative power with respect to subject-matter necessarily precludes the existence of a power in the Commonwealth Parliament to prohibit or make unlawful the exercise of a State Parliament of its concurrent legislative power with respect to that subject-matter. Section 109 of the Constitution then resolves any conflicts between the competing laws in favour of the paramountcy of the Commonwealth law; to the extent of that inconsistency of state law is inoperative."

While the Act binds the Crown in right of the State, it binds the Executive and does not extend to the acts of a legislature - a State Parliament. It follows that there is no basis for finding the State of Victoria liable for discrimination by virtue of passing legislation.

7.6 Status of the Freemasons Hospital as a respondent

During the course of the inquiry the status of the entity known as the Freemasons Hospital was put in issue because at the time of the acts of discrimination it was not an incorporated body. In further written submissions from the second respondent is was said that from January 1993 to the date of incorporation on 19 December 1994, the Freemasons Hospital was constituted pursuant to the Constitutions of United Grand Lodge of the Antient Free and Accepted Masons of Victoria and the Constitution and By-laws of the Freemasons Hospital, Victoria. Pursuant to the Hospital's constitution, the entity is the Chairman, Treasurer and General Manger - that is the Board of Management of the Hospital. The registration accorded to the Hospital by the Victoria Department of Health was issued to the Board of Management constituted by the Chairman (Mr Stewart), the Treasurer (Mr Heffernan) and the General Manager (Mr Wittingslow).

For the purposes of the inquiry, the allegations of discriminatory conduct by Freemasons Hospital were made by Ms DD and Ms AB. In Ms AB's case, she alleges the discrimination is ongoing and this conduct is attributable to the corporate entity known as Freemasons Hospital Pty Ltd operating as Freemasons Hospital.

Ms DD's complaint was made against both the Royal Women's Hospital and Freemasons, the evidence is that at the relevant time, the alleged discriminatory conduct occurred while receiving treatment at the Royal Women's Hospital.

8. RELIEF

Having found that the first and second respondents have breached s.22 of the Act and unlawfully discriminated against the complainants because of their marital status, I turn to s.81 of the Act and question of the appropriate remedies in this matter.

8.1 Declaration of invalidity of the Victorian Act

The complainants have sought a declaration about the validity of a State law. This declaration concerns a matter of constitutional law and it is not a declaration that the Commission may make. For the reasons outlined above, it follows that any such declaration must be sought from a court and not from this Commission.

8.2 Declaration that the Freemasons Hospital place Ms AB on the IVF program

Having regard to the decision in Australian Securities Commission -v- Bank Leumi Le Israel (1995) 134 ALR 527 and the authorities referred to therein, I do not think it would be appropriate for me to grant the declaration sought by Ms AB. If I were to grant the declaration I would be requiring the Freemasons Hospital to breach the Victorian Act. As I have already indicated the penalties for breaching that statue are severe.

In refusing to grant the declaration I am not condoning the Freemasons Hospital's action.

If the Hospital does not take any action to have this apparent inconsistency between the statutes clarified there may be an ongoing financial risk. The complainant Ms AB may choose to bring another action in the future or other persons may bring a similar action. That is clearly not a satisfactory solution for any of the parties.

8.3 Compensation

There are members of our society who view the institution of marriage as sacred. There are others who view it as an anachronism. The complainants in this case were all of the view that marriage is an anachronistic institution which discriminated against women and that they never wished to formally marry. The complainants Ms DD and Ms MW have married to enable them to participate in the IVF program. Ms MW gave evidence that she feels shame at having married and has therefore not told her friends or family about her marriage. Ms DD gave evidence that she has become estranged from a close friend who could not accept that Ms DD had decided to marry.

The complainants are entitled to the views which they hold about marriage. Any decision to marry or not to marry ought to be a decision for the individuals concerned. Neither decision ought be imposed by outside bodies or persons.

At the same time, the complainants accept that the hospitals were faced with a difficult choice in determining whether to accept them for treatment having regard to the penalties under the Victorian Act. Although I have some sympathy for the medical practitioners and the hospitals, I am not able to accede to Mr Keon-Cohen's request that if I found against the hospitals, that I should not make a determination that compensation should be paid by the hospitals.

However, the evidence is clear that the hospitals made a choice albeit a difficult one that they would comply with the Victorian Act with the knowledge that their conduct would be in contravention with the Sex Discrimination Act. They must accept the consequences of that choice.

Having regard to the objects of the Act (see s.3(b)) and a women's right to control her own body, a woman's marital status should not determine when and if she is able to receive the medical treatment she seeks. Marital status has no relevance to the type of medical treatment which should be available to women and it should not be a bar to obtaining the medical services which are readily available. From the evidence, other than the provision of IVF treatment, the marital status of a patient is irrelevant. Dr Ratten stated that the Royal Women's Hospital had a 60-40 ratio of married to unmarried women patients and that unmarried women are entitled to a full range of medical services including treatment for infertility.

Turning to the question of compensation, it is difficult in a matter of this nature to determine what is the appropriate level of compensation. The object of discrimination law is not to impose punitive awards or penalise the wrongdoer and the terms of s.81 of the Act make it clear that the award of damages is discretionary. The authorities are clear that the purpose of an award of damages is to place the party who has suffered in the same position she would have been if she has not been subjected to the wrong for which she is now seeking compensation. As Lord Dunedin said in Admiralty Commissioners -v- S. S. Valerio (Owners) [1922] 2 AC 242 HL at 248:

"In calculating damages you are to consider what is the pecuniary sum which will make good to the sufferer, as far as money can do so, the loss which he has suffered."

It must be borne in mind that it is not always possible to calculate loss in monetary terms. The complainants brought these proceedings not for financial gain but to clarify the legal position and in the case of Ms AB to possibly enable her to undergo IVF treatment in Melbourne.

It is impossible to make reference to comparable cases as there are none directly on this point.

Having regard to the complainants' views and the fact that the first and second respondents' actions were done in good faith to comply with the Victorian Act, it is not appropriate that the complainants Ms MW and Ms DD are awarded compensation for their so called economic loss (being the costs connected with their respective wedding ceremonies), with the exception of the registry fee which was compulsory.

I think it appropriate that any damages awarded are only those included in the general head of pain, suffering and humiliation. The complainants suffered in differing ways and to different degrees. The complainant, Ms MW has on-going stress as a result of not disclosing the fact of her marriage to family or friends. The sum of $4,500 is therefore appropriate to be awarded by way of general damages. This sum takes into account the on-going stress and trauma which Ms MW is facing as a result of the circumstances in which she entered into her marriage.

The complainant, Ms DD spent a considerable length of time on the IVF program, she had a sense of progression only to have her hopes cruelly dashed when she received a phone call about her marital status and was advised she could no longer continue on the program. The sum of $5000 is therefore appropriate to be awarded as general damages. This sum takes into account the manner in which Ms DD was informed that she was not eligible for IVF treatment.

8.3.1 Damages - Ms AB

Ms AB is seeking specific and general damages. With respect to the claim for specific damages or economic loss, Counsel for the State of Victoria contended that damages for Ms AB's lost income should be assessed at the after tax rate. It was submitted on behalf of the State of Victoria that any damages awarded to Ms AB for loss of income should be assessed at the after tax rate.

Counsel for Ms AB contended that this was not the correct way in which the matter should be approached. Reference was made to a ruling of the Taxation Commissioner No 2424 dated 2 July 1987. I have read a copy of that ruling which outlines the Tax Commissioner's attitude to compensation and damages awarded pursuant to the Act. The ruling is clear and unambiguous. A compensation payment to make up for pecuniary losses such as loss of earnings is assessable for income tax. The payment is included in the employees assessable income in the year it is received.

Bearing in mind the purpose of an award of damages it would not be appropriate to assess Ms AB's loss of income at the after tax rate. I am satisfied that the amounts claimed by Ms AB are reasonable. I am therefore prepared to allow the claim for damages in the sum of $14,628.00.

The complainant Ms AB did not suffer the same degree of trauma as the other complainants in that she was not forced to marry against her will. Due to the financial resources available to her she was able to seek treatment in Sydney. This treatment was not as convenient to her in terms of her residence and work. She will be compensated for this in part, by means of her loss of earnings claim.

With respect to Ms AB's claim for general damages, I have assessed the appropriate sum at $2500.00. Ms AB was able to undergo IVF treatment interstate and therefore did not have to marry against her will. She is to be compensated for the costs she has incurred in being forced to have IVF treatment interstate.

9. CONCLUSIONS

1. The Royal Women's Hospital has unlawfully discriminated against Ms MW and is to pay damages in the amount of $4,500.00 to Ms MW.

2. The Royal Women's Hospital has unlawfully discriminated against Ms DD and is to pay damages in the amount of $5,000.00 to Ms DD.

3. Freemasons Hospital has unlawfully discriminated and continues to discriminate against Ms AB on the grounds of her marital status by its initial and continuing refusal to provide her with IVF treatment and is to pay damages in the amount of $17,128.00.

Dated: 5 March 1997

..............................................

Antonia Kohl

Hearing Commissioner