McBain v State of Victoria [2000] FCA 1009

McBain v State of Victoria [2000] FCA 1009

IVF and infertility treatment provided by the applicant were services within s 22 of the Sex Discrimination Act 1984 (Cth). Section 8 of the Infertility Treatment Act 1995 (Vic) required the applicant to refuse such services to Ms Meldrum because she was single and not living with a man in a de facto relationship, thereby requiring direct discrimination on the ground of marital status. Section 32 did not apply because the relevant infertility treatment service, viewed as a whole, was not a service capable of being provided only to women, and s 7B did not apply because the discrimination was direct rather than indirect. It was not possible to obey both s 8 of the State Act and s 22 of the...

Jurisdiction
Australia
Judgment Date
28 July 2000
Procedural Posture
Application for Declarations Concerning Inconsistency Between State and Commonwealth Legislation / Final Judgment
Outcome
Declarations made that the marriage requirement in the State Act and dependent provisions were inconsistent with s 22 of the Sex Discrimination Act 1984 (Cth) and inoperative to that extent; the applicant may lawfully treat the fourth respondent; costs ordered against the first and second respondents.
Legal Topics
['marital Status Discrimination' 'ivf Treatment' 'provision of Services' 'inconsistency of Laws Under S 109 of the Constitution' 'infertility Treatment Eligibility']
['discrimination Law' 'constitutional Law' 'health Law'] ['marital Status Discrimination' 'ivf Treatment' 'provision of Services' 'inconsistency of Laws Under S 109 of the Constitution' 'infertility Treatment Eligibility']

Case Brief

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Procedural Posture

Application for Declarations Concerning Inconsistency Between State and Commonwealth Legislation / Final Judgment

Legal Issues

  1. 1 ['Whether IVF treatment provided by a medical practitioner is a service within s 22 of the Sex Discrimination Act 1984 (Cth).' 'Whether s 8 of the Infertility Treatment Act 1995 (Vic), restricting treatment procedures to married women or women living with a man in a de facto relationship, is inconsistent with s 22 of the Sex Discrimination Act 1984 (Cth).' 'Whether s 32 of the Sex Discrimination Act 1984 (Cth) excludes the application of s 22 because the service can only be provided to members of one sex.' 'Whether s 7B of the Sex Discrimination Act 1984 (Cth) applies to make the marital status requirement reasonable in the circumstances.' 'Which provisions of the State Act are inoperative to the extent they depend on the marriage requirement.']

Ratio Decidendi

IVF and infertility treatment provided by the applicant were services within s 22 of the Sex Discrimination Act 1984 (Cth). Section 8 of the Infertility Treatment Act 1995 (Vic) required the applicant to refuse such services to Ms Meldrum because she was single and not living with a man in a de facto relationship, thereby requiring direct discrimination on the ground of marital status. Section 32 did not apply because the relevant infertility treatment service, viewed as a whole, was not a service capable of being provided only to women, and s 7B did not apply because the discrimination was direct rather than indirect. It was not possible to obey both s 8 of the State Act and s 22 of the...

Court Disposition

Declarations made that the marriage requirement in the State Act and dependent provisions were inconsistent with s 22 of the Sex Discrimination Act 1984 (Cth) and inoperative to that extent; the applicant may lawfully treat the fourth respondent; costs ordered against the first and second respondents.

Orders

  • ['Section 8(1) of the Fertility Treatment Act 1995 (Vic), to the extent to which it restricts the application of any treatment procedure regulated by it to a woman who is married and living with her husband on a genuine domestic basis or living with a man in a de facto relationship as defined in s 3(1), is...