The Sex Discrimination Amendment Bill (No. 1) 2001 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) 2001 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 (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 and which are no longer inconsistent with that Act will revive. The amendment will also ensure the validity of the existing Western Australian legislation to the extent that it is not inconsistent with the Sex Discrimination Act as amended. 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 defacto 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.