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Thursday, 27 June 2002
Page: 4543

Mr SLIPPER (parliamentary Secretary to the Minister for Finance and Administration) (10:36 AM) —I move:

That this bill be now read a second time.

The Sex Discrimination Amendment Bill 2002 is in substance the same as the Sex Discrimination Amendment Bill (No. 1) 2001 that was introduced by the government in the previous parliament. This bill, as with the previous bill, remedies a problem with the operation of the Sex Discrimination Act 1984 identified by the Federal Court in its decision in McBain v. State of Victoria.

In the McBain case, the Federal Court held that Victorian legislation restricting access to assisted reproductive technology 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.

The matter was also recently indirectly considered by the High Court in the matter of Re McBain; Ex parte the Australian Catholic Bishops Conference [2002] HCA 16.

In 2001, the Australian Catholic Bishops Conference and the Australian Episcopal Conference of the Roman Catholic Church brought proceedings in the original jurisdiction of the High Court seeking orders to quash the decision of Mr Justice Sundberg in McBain. The bishops were granted a partial fiat by the Attorney-General to ensure that they had standing to bring proceedings in the High Court to argue that there was no inconsistency between the Victorian act and the SDA. The Attorney-General also intervened in the proceedings under section 78A of the Judiciary Act 1903, as the proceedings raised a constitutional issue.

On 18 April 2002, the High Court handed down its decision. The High Court did not deal with or decide the issue of inconsistency between the Victorian act and the SDA. Rather, the decision was based on questions of procedure, jurisdiction and the exercise of judicial discretion. The effect of the High Court decision is that the decision of Mr Justice Sundberg in the Federal Court stands.

The government has consistently maintained that it does not believe that the Sex Discrimination Act was ever intended to prevent the states and territories from legislating to restrict access to ART procedures to women who are married or living in de facto relationships.

The Sex Discrimination Amendment Bill 2002 will amend the Sex Discrimination Act to ensure that states and territories can legislate to limit access to assisted reproductive technology services to married couples—or married couples who are not living separately and apart from their spouse—and de facto couples, if the state or territory wishes to do so. The amendments will not, however, permit states and territories to discriminate between married and de facto couples. Nor will they permit states and territories to impose an additional criterion of a specified period of cohabitation for de facto couples.

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, 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—that is, 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 and that are no longer inconsistent with that act will revive. However, the bill will not preserve state or territory laws to the extent that they prescribe a required length of cohabitation before a person can access ART services as this is inconsistent with the definition of `de facto spouse' in the Sex Discrimination Act.

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 reasonable expectation, other things being equal, of the care and protection of both their mother and father. I commend the bill to the House and present the explanatory memorandum.

Debate (on motion by Mr Edwards) adjourned.