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Thursday, 17 August 2000
Page: 19228


Mr WILLIAMS (Attorney-General) (10:03 AM) —I move:

That the bill be now read a second time.

The Sex Discrimination Amendment Bill (No. 1) 2000 remedies a problem with the operation of the Sex Discrimination Act 1984 identified by the Federal Court in its decision in McBain v. the State of Victoria.

In that case the court held that Victorian legislation restricting access to assisted reproductive technology (ART) treatment to women who were married and living with their husband on a genuine domestic basis, or living with a man in a de facto relationship was inconsistent with the Commonwealth Sex Discrimination Act, and as a consequence was invalid under section 109 of the Constitution.

It is the government's view that it was not contemplated that the Sex Discrimination Act would prevent the states legislating to restrict access to ART procedures to women who are married or living in de facto relationships.

The Sex Discrimination Amendment Bill (No. 1) 2000 will amend the Sex Discrimination Act to allow the states and territories to legislate to permit restrictions to be imposed on access to any form of ART services on the basis of marital status.

The Commonwealth has limited constitutional power to legislate in this field. It is consistent with the states' responsibilities in relation to the regulation of the provision of medical care and treatment that they be permitted to legislate in the area of ART as they consider appropriate.

This issue primarily involves the right of a child within our society to have the reasonable expectation, other things being equal, of the care and affection of both a mother and a father.

The amendment deals with ART services. ART services are defined to mean services using technology to assist in non-coital fertilisation.

The main forms of ART include in vitro fertilisation (IVF), artificial insemination, gamete, zygote and embryo transfers.

IVF involves a range of procedures aimed at achieving pregnancy where there are issues of infertility. IVF actually means that ova are fertilised outside of a woman' s body to allow the fertilised ova (embryos) to be implanted at some later stage.

Artificial insemination involves the transferral of sperm into the reproductive tract of a woman to achieve pregnancy. Fertilisation occurs within the woman's body.

Artificial insemination is used to achieve pregnancy in women who are fertile, but do not have male partners and who do not wish to become pregnant by traditional coital means; by couples where the male partner is infertile (donor insemination); and in some cases where the woman may not be classified as `infertile' in the strict sense but nevertheless has been unable to become pregnant by coital means.

Artificial insemination is by far the most commonly used procedure by single and lesbian women to achieve pregnancy in the absence of female infertility.

IVF is generally only utilised by single and lesbian women if pregnancy has not been able to be achieved through artificial insemination.

The bill will commence upon royal assent.

When the bill commences, any provisions of the Victorian and South Australian acts that have previously been ruled inconsistent with the Sex Discrimination Act will revive. The amendment will also ensure the validity of the existing Western Australian legislation.

If a state or territory chooses not to legislate in this area, the Sex Discrimination Act will continue to apply.

The government is acting to ensure that states and territories have the power to enact legislation to limit the availability of assisted reproductive technologies to married women and those living in a de facto relationship with a male partner.

In doing so the government is doing its part to protect the rights of children to have the care and protection, other things being equal, of both their mother and father.

I present the explanatory memorandum to the bill.

Debate (on motion by Mr Martin Ferguson) adjourned.