A single woman successfully sued the Royal Women's Hospital under the SDA for discrimination on the basis of marital status and received damages in the sum of $8551: see W v D and Royal Women's Hospital, unreported, Human Rights and Equal Opportunity Commission, No H97/221, 24 December 1999. However, it was beyond the power of HREOC to determine whether the exclusion of single women from access to treatment was constitutionally invalid.
4.
[2000] FCA1009 (28 July 2000).
5.
Section 3, Infertility Treatment Act 1995 (Vic.).
6.
Sundberg J accepted that ‘services’ included infertility treatment as defined by the Victorian Act: see McBain, above, ref 4, at 13.
7.
McBain, above, ref 4, paras 19 and 20.
8.
Infertility Treatment Act 1995 (Vic.), ss.8(2) (consent) and 11 (counselling).
9.
Opinion of Gavan Griffith QC for the Infertility Treatment Authority, 4 August 2000; available from the ITA; copy on file with the author.
See Infertility Treatment Authority, Conditions for Licence: Application for Licences by Hospitals and Day Procedures Centres, March 1999, p.28, <http://www.ita.org.au/aplichos.pdf>.
13.
Infertility Treatment Act 1995 (Vic.), ss.79, 80.
14.
Sex Discrimination Amendment (No 1) Bill 2000 (Cth).
15.
However, the Attorney-General indicated that the government intended to allow Western Australia and South Australia to continue to discriminate against some de facto couples: KingstonMargot, ‘De factos to wait five years for fertility treatment’, Sydney Morning Herald, 22 August 2000. Legislation in WA and SA requires a de facto couple to cohabit for five years in order to be eligible for treatment, whereas a married couple may access IVF and associated services no matter how long they have been married and whether or not they cohabit. See Reproductive Technology Act 1988 (SA), s.13; Human Reproductive Technology Act 1991 (WA), s.23. This legislation would be invalid under the SDA as it presently stands. The South Australian restrictions have been inoperative since they were declared invalid by the South Australian Supreme Court in Pearce v South Australian Health Commission (1996) 66SASR486. However, they would be re-activated if the federal government's amendment to the SDA were to pass.
16.
McBain, above ref 4, para 11.
17.
Social Security Act 1991 (Cth).
18.
For a general discussion of the Convention on the Rights of the Child in the Australian context see OtlowskiM. and TsamenyiM., An Australian Perspective on the Convention on the Rights of the Child, Unitas Law Press, 1992.
19.
See CROC, art 2(1).
20.
See Toonen v Australia, Comm. No 488/1992, UN GAOR Hum Rts Comm, 50th Sess, UN Doc CCPR/C/50/D/488/1992 (1994), para 8.7.
21.
See, for example, Minister for Immigration and Ethnic Affairs v Teoh (1995) 128ALR353, 362; Dietrich v R (1992) 177CLR292, 305.
22.
The SDA transforms Australia's obligations under the Convention on the Elimination of All Forms of Discrimination against Women into Australian law.
23.
See, for example, GolombokS., Parenting: What Really Counts (2000); BallC. and PeaJ., ‘Warring With Wardle: Morality, Social Science, and Gay and Lesbian Parents’, [1998] University of Illinois Law Review253; PattersonC., ‘Children of Lesbian and Gay Parents’, (1992) 63Child Development1025. These references examine American and British social science research, but there is little reason to think that their conclusions would not apply in Australia.
