Walker, Kristen --- "The Bishops, The Doctor, His Patient and the Attorney-General: The Conclusion of the McBain Litigation" [2002] FedLawRw 18; (2002) 30(3) Federal Law Review 507
[*] BSc LLB(Hons) LLM (Melb) LLM (Columbia). Senior Lecturer in Law, The University of Melbourne. The author provided some assistance to the lawyers for both the Women's Electoral Lobby and Dr McBain in the preparation of the High Court case. The author wishes to thank Miranda Stewart, Stephen Moloney and Felicity Hampel and the anonymous referee for their comments on the article.
[1] George Pell, 'Federal Court decision "massive social experiment on children"' (Press Release, 6 July 2000) <http://www.catholic.org.au/media/2000/2000_july28a.htm> at 21 November 2002.
[2] ABC Television, 'IVF Decision Brings Charge of Social Experimentation', The 7.30 Report, 28 July 2000 <http://www.abc.net.au/7.30/s157016.htm> at 21 November 2002.
[3] Ibid.
[4] Attorney-General for the Commonwealth, News Release: High Court Decision, (Media Release, 18 April 2002 ( <http://www.law.gov.au/aghome/agnews/2002newsag /42_02.htm> ) at 21 November 2002.
[5] [2000] FCA 1009; (2000) 99 FCR 116.
[6] Ibid 117.
[7] Ibid.
[8] Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16 (Unreported, Gleeson CJ, Gaudron McHugh, Gummow, Kirby, Hayne and Callinan JJ, 18 April 2002) (hereafter 'Re McBain').
[9] The Sex Discrimination Amendment (No 1) Bill 2000 (Cth) was introduced into the House of Representatives on 18 August 2000. It lapsed with the dissolution of Parliament for the 2001 election. Although the Bill never passed the House, the Senate Legal and Constitutional Committee reported on it in February 2001 and expressed concerns that 'the rights of some women will be diminished if the amendments are introduced' and that 'the Bill will amend the Commonwealth Act so as to conflict with the very treaty (CEDAW) that it was intended to implement'. See Senate Legal and Constitutional Committee, Parliament of Australia, 'Inquiry into the Provisions of the Sex Discrimination Amendment Bill (No.1) 2000' (2001) [5.8]. ( <http://www.aph.gov.au//committee/legcon_ctte/ sexdisreport /Contents.htm> ).
[10] And its predecessor, the Infertility (Medical Treatment) Act 1984 (Vic).
[11] Pearce v South Australian Health Commission [1996] SASC 5801; (1996) 66 SASR 486.
[12] No doubt he also wished to treat other Victorian women in Victoria, but the proceedings were founded on his wish to treat Ms Meldrum.
[13] Notably, the section had originally permitted only married women to access services. However, after a successful discrimination case in 1997 (MW v Royal Women's Hospital [1997] HREOCA 6 (5 March 1997)), the section was amended to permit doctors to provide services to women in de facto relationships: see Infertility Treatment (Amendment) Act 1997 (Vic) ss 6 and 7.
[14] See IT Act pt 8, especially s 115.
[15] W v D and Royal Women's Hospital (Unreported, Human Rights and Equal Opportunity Commission, No H97/221, 24 December 1999).
[16] This was the same approach that had been adopted in MW v Royal Women's Hospital, above n 13.
[17] Although in oral argument in Re McBain McHugh J doubted whether such a course had been taken by a State previously (see Transcript of Proceedings, Re McBain, (High Court of Australia, 4 September 2001), a similar course was adopted in Pearce v South Australian Health Commission [1996] SASC 5801; (1996) 66 SASR 486, where the South Australian government consented to orders declaring the South Australian legislation inoperative.
[18] McBain v Victoria [2000] FCA 1009; (2000) 99 FCR 116, 117.
[19] For a discussion of Sundberg J's decision in McBain v Victoria, see Kristen Walker, '1950s Family Values vs Human Rights: In Vitro Fertilisation, Donor Insemination and Sexuality in Victoria' (2001) 11 Public Law Review 292.
[20] The application for prohibition against Dr McBain was abandoned by the Bishops and the Episcopal Conference during oral argument: see Transcript of Proceedings , Ausn Catholic Bishops Conference & Anor, Ex parte—Re Justice Sundberg & Anor C22/2000 (High Court of Australia, 4 September 2001).
[21] This appears from the judgments of Gaudron and Gummow JJ (Re McBain, [54–5]) and McHugh J ibid [84]. However, it is unclear from the transcript that the application for prohibition and mandamus was ever in fact abandoned.
[22] Giving the legislature the power to confer on the High Court original jurisdiction in 'any matter ... arising under this Constitution, or involving its interpretation'.
[23] Section 30(a) of the Judiciary Act 1903 (Cth) confers original jurisdiction on the High Court 'in all matters arising under the Constitution or involving its interpretation' and section 32 empowers the Court in the exercise of such jurisdiction 'to grant ... all such remedies whatsoever as any of the parties thereto are entitled to in respect of any legal or equitable claim properly brought forward by them respectively in the cause or matter; so that as far as possible all matters in controversy between the parties regarding the cause of action, or arising out of or connected with the cause of action, may be completely and finally determined, and all multiplicity of legal proceedings concerning any of such matters may be avoided'.
[24] Attorney-General for the Commonwealth, 'Catholic Bishops Granted A Fiat For High Court Case' (Press Release 14 August 2001) <http://www.ag.gov.au/aghome/agnews/ 2001newsag /1025_01.htm> at 21 November 2002.
[25] Re McBain [48]. This was not the first time a partial or limited fiat had been granted by an Attorney-General: see Corporation of the City of Unley v State of South Australia [1996] SASC 5700; (1996) 67 SASR 8, 10.
[26] She wished to make arguments concerning s 117 of the Constitution, which had little prospect of success on the Court's current approach to that section.
[27] Re McBain [294].
[28] [1983] HCA 21; (1983) 158 CLR 1 ('Tasmanian Dam Case'). Indeed, a broad approach to the use of treaties to enliven the external affairs power had been taken as early as 1921 by Higgins J in Roche v Kronheimer [1921] HCA 25; (1921) 29 CLR 329 and in 1936 by a majority of the Court in R v Burgess; Ex parte Henry [1936] HCA 52; (1936) 55 CLR 608.
[29] See, eg, Kirmani v Captain Cook Cruises (No 1) [1985] HCA 8; (1985) 159 CLR 351; Gerhardy v Brown [1985] HCA 11; (1985) 159 CLR 70; Richardson v Forestry Commission [1988] HCA 10; (1988) 164 CLR 261; Queensland v The Commonwealth ('Queensland Rainforest Case') [1989] HCA 36; (1989) 167 CLR 232.
[30] Victoria v Commonwealth ('Industrial Relations Act Case') (1996) 187 CLR 416. In that case, Dawson J concurred in the result as he accepted the precedential weight of the Tasmanian Dam Case, though he nonetheless continued to adhere to his view that it was wrongly decided.
[31] See ss 9(4) and 9(10) SDA. The reason for this restriction is that in part the SDA is based on the external affairs power. Other parts of the SDA effectively prohibit marital status discrimination using other constitutional powers, but these did not cover the services provided by Dr McBain.
[32] Opened for signature 1 March 1980, 1249 UNTS 13 (entered into force 3 September 1981).
[33] Article 16 relevantly provides (emphasis added):
1. States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women:
...
(d) The same rights and responsibilities as parents, irrespective of their marital status, in matters relating to their children; in all cases the interests of the children shall be paramount;
(e) The same rights to decide freely and responsibly on the number and spacing of their children and to have access to the information, education and means to enable them to exercise these rights;
[34] Article 2 relevantly provides (emphasis added):
States Parties condemn discrimination against women in all its forms, agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women and, to this end, undertake:
(a) To embody the principle of the equality of men and women in their national constitutions or other appropriate legislation if not yet incorporated therein and to ensure, through law and other appropriate means, the practical realization of this principle;
(b) To adopt appropriate legislative and other measures, including sanctions where appropriate, prohibiting all discrimination against women;
(c) To establish legal protection of the rights of women on an equal basis with men and to ensure through competent national tribunals and other public institutions the effective protection of women against any act of discrimination;
(d) To refrain from engaging in any act or practice of discrimination against women and to ensure that public authorities and institutions shall act in conformity with this obligation;
(e) To take all appropriate measures to eliminate discrimination against women by any person, organization or enterprise;
(f) To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women;
[35] The Recommendations of the CEDAW Committee are generally regarded as highly persuasive statements as to the appropriate interpretation of CEDAW. This is similar to the status of recommendations of other treaty bodies. See Andrew Byrnes, 'The Committee on the Elimination of Discrimination Against Women' in Philip Alston (ed), The United Nations and Human Rights: A Critical Appraisal (2nd ed, forthcoming 2003); also extracted in Henry Steiner and Philip Alston, International Human Rights in Context: Law, Politics, Morals (2nd ed, 2000) 188, 190.
[36] Human Rights and Equal Opportunity Commission, Outline of submissions of the Human Rights and Equal Opportunity Commission intervening before the High Court in the IVF Case [65-71] <http://www.humanrights.gov.au/legal/guidelines/hcaivf1.html> at 21 November 2002.
[37] Marital status discrimination in the broad sense will be validly and effectively prohibited in relation to many services using the corporations power and various other s 51 powers such as banking, insurance and interstate and international trade and commerce (see SDA ss 9(11)–(18)). But these powers do not support the legislation comprehensively in relation to provision of goods and services. Medical services are one key example where the external affairs power and CEDAW are required to give support to the reach of the SDA. There are no doubt other services carried out by persons who are not within the reach of the legislation except by virtue of the external affairs power.
[38] These may legitimately be referred to where there is ambiguity in the plain meaning of the text of the treaty (Vienna Convention on the Law of Treaties opened for signature 23 May 1969, 1155 UNTS 331, art 32 (entered into force 27 January 1980). The High Court has permitted the use of the Vienna Convention on the Law of Treaties in interpreting treaties: see, eg, Koowarta v Bjelke-Petersen [1982] HCA 27; (1982) 153 CLR 168, 265 (Brennan J); Riley v The Commonwealth [1985] HCA 82; (1985) 159 CLR 1, 15 (Deane J); Thiel v Federal Commissioner of Taxation [1990] HCA 37; (1990) 171 CLR 338, 349 (Dawson J), 356 (McHugh J); Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225, 255 (McHugh J) 277 (Gummow J) (Kirby J); Morrison v Peacock [2002] HCA 44 (unreported, Gleeson CJ, McHugh, Gummow, Kirby and Hayne JJ, 9 October 2002), para 15. Given the differing constructions of Art 1 of CEDAW advanced by the parties in Re McBain, there does appear to be an ambiguity in the meaning of the text of Art 1 of CEDAW.
[39] Senate Legal and Constitutional Committee, above n 9 [5.7].
[40] This section was inserted into the SDA to satisfy Senator Harradine, who was concerned that the SDA might allow a woman to claim discrimination if she was refused an abortion: see, eg, Commonwealth, Parliamentary Debates, House of Representatives, 28 February 1984, 68 (Mr Young, Special Minister of State, Second Reading Speech); Commonwealth, Parliamentary Debates, Senate, 20 October 1983, 1892 (Senator Evans, Attorney–General).
[41] Ibid (Mr Young; Commonwealth, Parliamentary Debates, Senate, 21 October 1983, 1924 (Senator Tate).
[42] Commonwealth, Parliamentary Debates, Senate, 16 December 1983, 3963-4 (Senator Harradine).
[43] Senator Evans, above n 40, 1893; Senator Tate, above n 41; Commonwealth, Parliamentary Debates, House of Representatives, 2 March 1984, 395 (Mr Maher).
[44] Senator Harradine, above n 42.
[45] Transcript of Proceedings Re McBain (High Court of Australia, Kirby J, 4 September 2001).
[46] Transcript of Proceedings, Re McBain, (High Court of Australia, Gaudron J, 4 September 2001).
[47] Re McBain [5] (Gleeson CJ), [78] (Gaudron and Gummow JJ), [242-3] (Hayne J).
[48] In re Judiciary and Navigation Acts [1921] HCA 20; (1921) 29 CLR 257. See also Phillip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457; R v Kirby; Ex parte Boilermaker's Society of Australia [1956] HCA 10; (1956) 94 CLR 254 ('Boilermakers' Case'); Commonwealth v Queensland [1975] HCA 43; (1975) 134 CLR 298, 325; O'Toole v Charles David Pty Ltd (1991) 171 CLR 232; Mellifont v Attorney-General (Qld) [1991] HCA 53; (1991) 173 CLR 289; Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564; CTC Resources v Commissioner of Taxation [1994] FCA 947; (1994) 120 ALR 197, 228-31.
[49] Re McBain, [19] (Gleeson CJ), [54] (Gaudron and Gummow JJ), [264] (Hayne J).
[50] Gleeson CJ was explicit about this (ibid [22]), as was Hayne J [278-9]; Gaudron and Gummow JJ appear to have taken this view but did not make their position explicit.
[51] Ibid [22] (Gleeson CJ), [71] (Gaudron and Gummow JJ, with whom Hayne J agreed)).
[52] Ibid [23] (Gleeson CJ); see also [72] (Gaudron and Gummow JJ, with whom Hayne J agreed).
[53] See, eg, ibid [57].
[54] Ibid [14] (Gleeson CJ), [57] (Gaudron and Gummow JJ, with whom Hayne J agreed).
[55] Ibid [57].
[56] Ibid [63].
[57] Ibid.
[58] Ibid[68].
[59] See Congregation for the Doctrine of the Faith, Donum Vitae: Instruction on Respect for Human Life in Its Origin and On the Dignity of Procreation (1987) Catholic Information Network <www.cin.org/vatcong/donumvit.html> at 21 November 2002.
[60] Attorney–General (NSW); Ex rel Tooth & Co Ltd v Brewery Employees Union of New South Wales [1908] HCA 94; (1908) 6 CLR 469, 491. Quoted in Re McBain, [78].
[61] Re McBain, [89]–[90].
[62] Ibid[87].
[63] Ibid.
[64] Ibid.
[65] Ibid [92].
[66] Ibid [207], [216].
[67] Ibid [205].
[68] Ibid.
[69] See above n 59. Some Catholic hospitals, which are entities separate from the Bishops and the Episcopal Conference and were not parties to the litigation, do provide some forms of fertility treatment, such as fertility tracking, ovulation induction and gamete intra-fallopian transfer (the latter of which is covered by the Infertility Treatment Act 1995 (Vic)). Inquiries suggest that they provide at least some of these services to single women. But they do not, as I understand it, provide IVF (which was the service in issue in the McBain litigation) or donor insemination. The Melbourne Assisted Conception Centre, associated with the Mercy Hospital, for example, 'works within the ethical guidelines as set out by the Catholic Church and endeavours to take on a more natural approach toward Reproductive Medicine'. <http://www.assistedconception.com.au/> at 21 November 2002. It does not offer IVF.
[70] Rather, the Bishops and the Episcopal Conference asserted the provision of various other services, such as adoption services and family planning services to married couples only: see Prosecutors' Submissions in Reply (copy on file with author). The Bishops and the Episcopal Conference may have standing to challenge the application of the SDA to them in relation to those services, but that does not mean that they have standing to challenge the application of the SDA to Dr McBain and the operation of the IT Act in relation to IVF and related services.
[71] Though not necessarily the ability to bring these proceedings to re-open the litigation between Dr McBain and the Victorian authorities.
[72] Re McBain, [206].
[73] Report No 78 (1996). See also Australian Law Reform Commission, Standing in Public Interest Litigation, Report No 27 (1985); Peter Cane, 'Open Standing and The Role of Courts in a Democratic Society' (1999) 20 Singapore Law Review 23; Elizabeth Fisher and Jeremy Kirk, 'Still Standing: An Argument For Open Standing In Australia and England' (1997) 71 Australian Law Journal 370; cf Henry Burmester, 'Standing To Sue For Public Remedies' (1997) 8 Public Law Review 3.
[74] Re McBain, [208].
[75] Ibid.
[76] Ibid [186–99].
[77] Ibid [197].
[78] See, eg, Attorney-General (NSW); Ex rel Tooth & Co Ltd v The Brewery Employes Union of New South Wales ('Union Label Case') [1908] HCA 94; (1908) 6 CLR 469; Attorney-General (Vic); Ex rel Dale v Commonwealth [1945] HCA 30; (1945) 71 CLR 237 (' Pharmaceutical Benefits Case'); Attorney-General (Vic) v Commonwealth [1962] HCA 37; (1962) 107 CLR 529('Marriage Act Case'); Victoria v Commonwealth [1975] HCA 52; (1975) 134 CLR 338 ('Australian Assistance Plan Case').
[79] Attorney-General (Vic): Ex rel Dale v The Commonwealth [1945] HCA 30; (1945) 71 CLR 237, 272.
[80] Re McBain, [25-26] (Gleeson CJ), [75] (Gaudron and Gummow JJ,with whom Hayne J agreed).
[81] Ibid [26] (Gleeson CJ).
[82] Ibid [75].
[83] Ibid [76].
[84] Ibid [215].
[85] Ibid [216].
[86] Transcript of Proceedings: Ausn Catholic Bishops Conference & Anor, Ex parte—Re Sundberg & Anor C22/2000 (High Court of Australia, 5 September 2001). <http://www.austlii.edu.au/cgi-bin/disp.pl/au/other/hca/transcripts/2000/ C22/7.html> . Thanks to Simon Evans for drawing this exchange to my attention.
[87] John Williams, 'Re-thinking Advisory Opinions' (1996) 7 Public Law Review 205, 206.
[88] Lon Fuller, The Morality of Law (1969), 42.
[89] Ibid ch 2.
[90] Williams, above n 87, 206.
[91] Re McBain, [22] (Gleeson CJ), [71] (Gaudron and Gummow JJ, with whom Hayne J agreed).
[92] Ibid [90] (McHugh J, with whom Callinan J agreed), [220] (Kirby J).
[93] Ibid [89].
[94] Ibid [220] (footnote omitted).
[95] Ibid [195].
[96] See, eg, Joseph Raz, 'The Rule of Law and Its Virtue' (1977) 93 Law Quarterly Review 195, 197.
[97] See, eg, TRS Allan, Law, Liberty and Justice: The Legal Foundations of British Constitutionalism (1993) 25; Fuller, above n 88, 81.
[98] Re McBain, [220]. It certainly was not argued that the substantive issues before the court could not come before the courts in the future, in properly constituted litigation. Given that, Kirby J's point is that there is virtue in these issues should be resolved now, not later.
[99] Simon Evans, 'Defending Discretionary Remedialism' [2001] SydLawRw 20; (2001) 23 Sydney Law Review 463, 482 (footnote omitted).
[100] Re McBain, [106] (McHugh J ).
[101] Ibid [21] (Gleeson CJ), [281] (Hayne J, with whom Gaudron and Gummow JJ agreed), [160] (Kirby J).
[102] Ibid [285] (Hayne J, with whom Gaudron and Gummow JJ agreed), [115–7] (McHugh J, with whom Callinan J agreed).
[103] Ibid [282–3] (Hayne J, with whom Gaudron and Gummow JJ agreed) [119–20], [130] (McHugh J, with whom Callinan J agreed), [226–7] (Kirby J).
[104] Ibid [285] (Hayne J, with whom Gaudron and Gummow JJ agreed), [121] (McHugh J, with whom Callinan J agreed), [229] (Kirby J).
[105] Ibid [118] (McHugh J, with whom Callinan J agreed), [230] (Kirby J). Notably, McHugh J thought that the Bishops and the Episcopal Conference needed to show that no single woman had received IVF in Victoria since Sundberg J's order (ibid [118]), a task that the Bishops and the Conference did not attempt to undertake and which would have been impossible, as single women have been treated in Victoria since Sundberg J's decision.
[106] Ibid [230].
[107] Ibid [228].
[108] Ibid [220] (Kirby J).
[109] Ibid [117] (McHugh J), [221] (Kirby J).
[110] Ibid [221] (Kirby J).
[111] Kit Barker, 'Rescuing Remedialism in Unjust Enrichment Law: Why Remedies Are Right' (1998) 57 Cambridge Law Journal 301, 321. See also Simon Evans, above n 99, 486; Grant Hammond, 'Rethinking Remedies: The Changing Conception of the Relationship Between Legal and Equitable Remedies' in Jeffrey Berryman (ed), Remedies: Issues and Perspectives (1991) 87, 107.
[112] Re McBain [21].
[113] Ibid.
[114] Ibid.
[115] Infertility Treatment Authority, ITA News, (October 2000), Infertility Treatment Authority <http:// www.ita.org.au/newsletters/ newsletter_2000_10.pdf> at 21 November 2002.
[116] Such proceedings could certainly be brought in the High Court's original jurisdiction by the Victorian Attorney-General, either of his or her own motion or on relation, seeking a declaration to uphold the validity of the IT Act under ss 75(iii), (v) or 76(i). This is a possible scenario if there is a change in government. Alternatively, proceedings could be brought by a doctor who provided assisted reproductive services in Victoria and wished to deny those services to single women and/or lesbian couples and thus abide by the IT Act and not the SDA.
[117] The time for lodging an appeal has now expired and given Dr McBain's reliance on the Federal Court's orders, it is unlikely that a Court would grant an extension of time.
[118] Re Macks; Ex parte Saint; Re Macks; Ex parte Johnson [2000] HCA 62 (Unreported, Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ, 7 December 2000), [23] (Gleeson CJ), [53–7] (Gaudron J), [216–9] (Gummow J), [344] (Hayne and Callinan JJ). See also DMW v CGW [1982] HCA 73; (1982) 151 CLR 491.
[119] I note that Kirby J is of the view that, if Sundberg J's orders were quashed, Dr McBain would be at risk of 'investigation for breach of a law or of his professional obligations in Victoria' (Re McBain, [230]). In my view, to the extent that this suggests that Dr McBain could be convicted of an offence under the IT Act if Sundberg J's orders were quashed, it is at odds with the views expressed in other cases concerning the effect of Federal Court orders: see above n 118.
[120] As Kirby J says: 'Moreover, [the quashing of Sundberg J's orders] by this Court would expose to possible investigation and disciplinary or other proceedings other medical practitioners who, although not parties to the proceedings before Sundberg J or beneficiaries of his order, relied upon the declarations as to the law, given effect by that order, and offered IVF treatment and reproductive therapy to single women in Victoria'. Re McBain, [230].
[121] The order was as follows:
The court declares that:
(1) Section 8(1) of the Fertility Treatment Act 1995 (Vic) ("the State Act"), to the extent to which it restricts the application of any treatment procedure regulated by it to a woman who -
(a) is married and living with her husband on a genuine domestic basis, or
(b) is living with a man in a de facto relationship as defined in s 3(1) of the State Act
("the marriage requirement"), is inconsistent with s 22 of the Sex Discrimination Act 1984 (Cth) and inoperative by reason of s 109 of the Constitution of the Commonwealth of Australia.
(2) The sections of the State Act referred to in the attached Schedule, to the extent that they are dependent upon the marriage requirement, are inconsistent with s 22 of the Sex Discrimination Act and inoperative by reason of s 109 of the Constitution.
(3) The applicant may lawfully carry out a treatment procedure in respect of the fourth respondent notwithstanding that she does not satisfy the marriage requirement.
[122] Re McBain, [118].
[123] Ibid [22–4] (Gleeson CJ), [40] (Gaudron and Gummow JJ), [246] (Hayne J).
[124] Ibid [246].
[125] Simon Bronitt and Bernadette McSherry, Principles of Criminal Law (2001), 364.
[126] Ibid 367.
[127] Infertility Treatment Authority, above n 115.
[128] Opinion of Gavan Griffith QC for the Infertility Treatment Authority, 4 August 2000; available from the ITA; copy on file with the author.
[129] Note that 'husband' includes a woman's de facto male partner with whom she lives; 'oocyte' means 'an ovum from a woman' Infertility Treatment Act 1995 (Vic), s 3(1).
[131] Ibid. 'Clinical infertility' is an imprecise term that is difficult to define, but appears to mean that there is some medical reason why a woman cannot conceive. Infertility specialists have traditionally considered a woman to be infertile if, after 12 months of unprotected sexual intercourse, she has not conceived, even if there is no apparent reason for this failure such as blocked fallopian tubes.
[132] The Fertility Access Rights Lobby has received legal advice to this effect from Peter Hanks QC (copy on file with the author).
[133] See discussion in Kristen Walker, 'Should There be Limits on Who May Access Assisted Reproductive Services?' [2002] FlinJlLawRfm 5; (2002) 6 Flinders Journal of Law Reform 67, 74, 80.
[134] Infertility Treatment Authority, News, (August 2000) <http://www.ita.org.au/new-aug0.htm> at 21 November 2002.
[135] See Infertility Treatment Authority, Conditions for Licence: Application for Licences by Hospitals and Day Procedures Centres, March 1999, [2.6.1] <http://www.ita.org.au/ aplichos.pdf> at 21 November 2002.
[136] The Bill was originally introduced shortly after Sundberg J's decision, on 18 August 2000. It lapsed when Parliament was prorogued for the 2001 election.
[137] See Submission Of The Sex Discrimination Commissioner And The Human Rights And Equal Opportunity Commission To The Senate Legal And Constitutional Legislation Committee On The Sex Discrimination Amendment Bill (No 1) 2000, Human Rights and Equal Opportunities Commission, <
http://www.hreoc.gov.au/sex_discrimination/submission/sda_ ammendment _2000.html> at 21 November 2002.
[138] Senate Legal and Constitutional Committee, above n 9, [5.15].