Commission submission: IVF
(a) whether section 8 of the Infertility Treatment Act 1995 (Vic) ('ITA') is inconsistent, in terms of section 109 of the Constitution, with section 22(1) of the Sex Discrimination Act 1984 (Cth) ('SD Act'); and
Summary
(a) whether section 8 of the Infertility Treatment Act 1995 (Vic) ('ITA') is inconsistent, in terms of section 109 of the Constitution, with section 22(1) of the Sex Discrimination Act 1984 (Cth) ('SD Act'); and
Outline of submissions of the Human Rights and Equal Opportunity Commission intervening before the High Court in the IVF Case
IN THE HIGH COURT OF AUSTRALIA CANBERRA REGISTRY
No C22 of 2000
IN THE MATTER of an application for writs of mandamus, certiorari and prohibition against:
THE HONOURABLE JUSTICE ROSS ALAN SUNDBERG, Justice of the Federal Court of Australia
First Respondent
JOHN McBAIN
Second Respondent
Ex parte:
AUSTRALIAN CATHOLIC BISHOPS CONFERENCE and the AUSTRALIAN EPISCOPAL CONFERENCE OF THE ROMAN CATHOLIC CHURCH (ACN 000 665 958)
Applicants/Prosecutors
Outline of submissions of the Human Rights and Equal Opportunity Commission intervening before the High Court in the IVF Case
1. The Human Rights and Equal Opportunity Commission ('the Commission') intervenes following leave granted on 17 August 2001. [1]
Introduction
2. The Prosecutors' submissions [2] identify two questions for the proceedings. They are:
(a) whether section 8 of the Infertility Treatment Act 1995 (Vic) ('ITA') is inconsistent, in terms of section 109 of the Constitution, with section 22(1) of the Sex Discrimination Act 1984 (Cth) ('SD Act'); and
(b) if so, whether section 22(1) of the SD Act, to the extent that it would apply to the treatment procedure referred to in section 8 of the ITA, is a valid law of the Commonwealth.
3. The Prosecutors further suggest that the question in (a) involves two sub issues, namely:
(i) whether, assuming that the treatment procedure in section 8 of the ITA would otherwise have been a 'service' for the purposes of section 22(1) of the SD Act, section 32 of the SD Act rendered section 22(1) inapplicable; and
(ii) whether, in any event, Sundberg J [3] was incorrect in holding that such treatment procedure was a 'service' for the purposes of section 22(1) of the SD Act.
4. The question in (a) is to be determined by the proper construction of section 32 of the SD Act having regard to the operation of the SD Act generally with respect to protection against various forms of unlawful discrimination proscribed by the SD Act. In addressing this question, it is also necessary to consider the proper construction of 'service' as defined by section 4 of the SD Act.
5. The question in (b) concerns the validity of section 22(1) of the SD Act by reference to the Convention on the Elimination of All Forms of Discrimination Against Women ('CEDAW'). [4]
Commission's Submissions
6. The Commission's submissions [5] address the following issues:
(a) the Prosecutors' contention that section 32 of the SD Act applies so as to avoid any inconsistency within the meaning of section 109 of the Constitution;
(b) the Prosecutors' contention about the characterisation of the 'service' with reference to the ITA ('the Construction Question'); and
(c) the Prosecutors' contention that section 22(1) of the SD Act is invalid insofar as it applies to marital status ('the Validity Question').
7. The Commission makes no submission on the Prosecutors' standing and the matters addressed at paragraphs 2 to 18 of the submissions of the Women's Electoral Lobby (Vic) Inc ('WEL') dated 17 July 2001.
8. As regards WEL's submissions in relation to the Construction Question (see paragraphs 21 to 24 of WEL's submissions dated 17 July 2001) and the Validity Question and CEDAW (see paragraphs 25 to 35 of WEL's submissions dated 17 July 2001), the Commission supports the submissions made by WEL. The Commission outlines further or alternative submissions regarding those issues below.
9. The Commission makes no submission on the availability of relief which is addressed in paragraphs 55 to 65 of the Attorney-General of the Commonwealth's Submissions filed on 27 August 2001.
Construction Question - Section 32 of the SD Act
10. The Commission supports the findings of Sundberg J in relation to the Construction Question, namely that IVF under the ITA is not a service that is only provided to members of one sex. [6]
11. However, if this Court finds that the 'services' in question are capable of only being provided to members of one sex, the Commission submits that the inconsistency question remains a live issue because section 32 of the SD Act does not operate to exclude the operation of the SD Act in the way contended by the Prosecutors and the Attorney-General of the Commonwealth.
12. It is accepted that section 32 of the SD Act provides a defence to a claim of unlawful sex discrimination where the services in question can only be provided to persons of one sex. [7] The Commission submits that, on a proper construction of the SD Act, section 32 applies only in respect of discrimination on the ground of sex. It has no application to marital status discrimination.
13. The Prosecutors' contention is premised on the misconceived assumption that section 32 operates in respect of all of the grounds of unlawful discrimination created by the SD Act. [8] Such an assumption cannot be supported on a proper construction of the SD Act.
Operation of the SD Act
14. Part I of the SD Act does not define discrimination generally but by reference to specific types of discrimination on the following grounds:
15. These grounds operate independently of each other. So, for example, to establish discrimination on the ground of marital status, it is not necessary to also establish discrimination on the ground of sex or pregnancy.
16. Part II, Divisions 1-3 of the SD Act then proscribe the circumstances or areas when discrimination on one or more of these various grounds will be unlawful. [13]
17. Part II, Division 4 of the SD Act creates a series of exemptions to some or all of the unlawful discrimination provisions of the SD Act. The exemptions do not operate in a blanket fashion. [14] They are specific to the different forms of discrimination as defined in Part I of the SD Act or the different areas where discrimination may be unlawful as proscribed by Part II, Divisions 1 to 3. In summary:
- sections 30, 31, 32, 34(2), 35(1), 41, 42 and 43 create exemptions specific to discrimination on the ground of sex;
- section 35(2) creates an exemption which is specific to marital status discrimination;
- sections 41A and 41B create exemptions which are specific to discrimination in superannuation on the grounds of either sex or marital status;
- sections 38 and 39 create exemptions that apply to discrimination on the grounds of sex, marital status or pregnancy.
18. The balance of the exemptions in Division 4 (sections 34(1), 36(1), 37 and 40) are not specific to any particular ground of discrimination but operate in the context of specific areas such as accommodation, charities, religious bodies or an act done under statutory authority.
19. Finally, section 44 empowers the Commission to grant a temporary exemption on the application of a person. There has been no application made or granted by the Commission in relation to the provision of assisted reproductive technologies.
20. The exemptions are statutory defences, which operate in limited circumstances. A respondent to a complaint of discrimination may raise a defence and then bears the onus of making out such defences. [15] The application of such defences to a particular case does not even arise until that onus is discharged.
21. Those statutory defences should be contrasted to the provisions that delimit the jurisdiction of the SD Act [16] in Part 1:
- As the Attorney-General of the Commonwealth has noted, [17] section 9 operates to limit the effect of the unlawful discrimination provisions of the SD Act (save for section 19, 26 and 27) so as to ensure that the SD Act only operates within areas of clear constitutional support.
- Sections 10(4) and 11(4) of the SD Act operate in respect of laws of States or Territories that deal with discrimination on the ground of sex, marital status, pregnancy or potential pregnancy and which are capable of operating concurrently with the SD Act. Where a person brings a complaint or institutes proceedings under such a State or Territory law, sections 10(4) and 11(4) operate to prevent that person from making a complaint or instituting proceedings under the SD Act.
- Section 13 provides that certain of the unlawful discrimination provisions do not apply in relation to State instrumentalities.
Section 32
22. The Prosecutors and the Attorney-General of the Commonwealth treat section 32 as a provision that operates to oust the Commission's jurisdiction with respect to complaints of sex discrimination and as such assume that, like sections 9, 10(4), 11(4) and 13, section 32 will prevent the SD Act having any application to the facts of the current matter.
23. The Commission submits that section 32 is better viewed as a statutory defence, which may or may not be raised by a respondent in a particular case (who, as noted above, bears the onus of demonstrating that that defence applies). On that basis, it is submitted by the Commission that even if section 32 is construed so as to have potential application to the facts of the current case, the section 109 inconsistency remains. [18]
24. The proper construction of section 32 must have regard to its operation as one of a number of exemptions in the SD Act which are expressed to have specific operation in relation to a specific ground or area of discrimination.
25. Section 32 makes no reference to marital status discrimination. In the absence of any words which suggest it has any application to marital status discrimination, the terms of section 32 should only apply to circumstances where there is a claim of sex discrimination.
26. In this respect, the finding of Justice Sundberg concerned the inconsistency between the marital status discrimination provision of the SD Act and section 8 of the ITA. There was no finding and indeed no argument by any party about sex discrimination. [19]
27. The application of section 32 only to circumstances of sex discrimination may be confirmed (or, to the extent that section 32 is ambiguous, determined) [20] by reference to statements made in both Houses of Parliament, during the respective second reading speeches and in the debates.
28. The speeches and debates make clear that section 32 was included in the SD Act for the limited purposes of 'exempting' a particular form of potential sex discrimination, namely that women may claim discrimination on the ground of sex if they were refused abortion services on demand. [21] The purpose of section 32 was to prevent a woman relying on section 5 (the sex discrimination provisions) of the SD Act to claim a right to obtain an abortion. [22]
29. Parliament did not take the further step, saying if services could only be provided to persons of one sex, for example, women, then within that class of women, there would be no protection for discrimination on the ground of the different marital status of those women.
30. Section 32 does not remove the protection against marital status discrimination even when the 'services' in question may only be provided to members of one sex.
31. As regards paragraph 29 of the Attorney-General of the Commonwealth's submissions, the Commission agrees that the words 'nothing in Division 1 or 2 applies' are significant in construing section 32. 'Division 1 or 2' in that context clearly refers to Part II, Division 1 or 2 of the SD Act. Those divisions do not contain the provisions defining the various grounds of discrimination which are found in Part I. It is clear that section 32 operates with respect to particular areas in which discrimination on one or more of these various grounds will be unlawful.
32. The Commission submits that, considered in that context, section 32 should be viewed as an exception designed to operate upon the proscription of sex discrimination in certain areas (most particularly the area of abortion services). It does not follow that those words indicate a legislative intention directed at excluding all grounds of discrimination. Indeed, the Commission contends that the inclusion of those words implies a contrary intention.
33. The Commission further submits that as an exemption or a provision which restricts rights, such a provision should be construed narrowly. [23] Its operation should be strictly limited and only remove the protection against discrimination in clearly defined circumstances. The limited application of section 32 is further supported by regard to the objects of the SD Act set out in section 3. The objects of the SD Act require a beneficial construction of the SD Act that operates to eliminate discrimination. [24]
34. Section 3(a) provides that one of the objects of the SD Act is to give effect to certain provisions of CEDAW.
35. CEDAW is the principal international human rights convention dealing with the human rights of women. It reinforces general and regional human rights conventions [25] and as Professor Cook says, provides language to express those specific and binding entitlements to respect for individual dignity that constitute the human rights of women. [26]
36. The relevant provisions of CEDAW in turn impose upon Australia the following international legal obligations which are relevant to the operation of the SD Act as a whole and the interpretation of section 32:
- an obligation to adopt all necessary measures at the national level aimed at recognising the full realisation of the rights recognised in CEDAW; [27]
- an obligation to eliminate discrimination against women on the grounds of marital status; [28]
- an obligation to eliminate discrimination against women in all matters relating to marriage and family relations; [29] and
- an obligation to eliminate discrimination against women in the field of health care and to ensure that women are not denied access to health care services on the ground that they are unmarried. [30]
37. It is a long-established presumption that a statute is to be interpreted and applied, as far as its language admits, as not to be inconsistent with the comity of nations and established rules of international law. [31] If the Parliament intends to effect inconsistency 'it must express its intention with irresistible clearness to induce a Court to believe that it entertained it.' [32]
38. Where there is ambiguity, this Court has held, courts should favour a construction of a statute that accords with the obligations of Australia under an international treaty. [33] This Court has said that a common sense approach suggests that Parliament intended to legislate in accordance with its international obligations. [34] In more recent cases, the Court has indicated that a narrow conception of ambiguity is to be rejected. [35]
39. The Commission submits that wherever the language of the statute is susceptible of a construction that is consistent with the terms of the relevant international instrument and the obligations that it imposes on Australia, that construction must prevail. Where the text is susceptible of a construction consistent with the terms of the international instrument and general international law, then the Court must adopt that construction. Depending on circumstances such as the evident purpose of the international law or the Australian law, it may be this will involve a strained interpretation.
40. Such an approach is analogous with the presumption in favour of the validity of a statute. Where the language of a statute is not so intractable as to be incapable of being consistent with the presumption that Parliament did not intend to pass beyond Constitutional bounds, then the presumption in favour of validity must prevail. [36] This approach accords in turn with section 15A of the Acts Interpretation Act 1901 (Cth). [37]
41. The presumption which the Commission contends ought be preferred is not only consistent with older authority, long-established in Australia and elsewhere, [38] but it also avoids, to the extent that the text of the statute allows, conflict between domestic statutes and international treaty obligations which Australia, in accordance with the principle of pacta sunt servanda, is required to perform in good faith. [39] The extent to which Australia will be responsible in international law for violations of obligations owed under international treaties and customary law is thus minimised. [40]
42. There is a strong presumption that the SD Act ought be construed in conformity with the provisions of CEDAW and the interpretative jurisprudence of relevant international bodies in relation to its provisions. Unless explicitly stated to the contrary, Parliament ought be presumed to desire Australia to act in conformity with international law.
43. The Commission further submits that Australia has, by virtue of international instruments other than CEDAW, accepted the following obligations relevant to the interpretation of section 32:
- an obligation to guarantee rights to enjoy the benefits of scientific progress and its applications without discrimination on the ground of marital status; [41]
- an obligation to prohibit discrimination on the ground of marital status and to guarantee to all persons equal and effective protection against discrimination on the ground of marital status. [42]
44. The Commission submits that, given the choice, the High Court must prefer an interpretation of section 32 of the SD Act consistent with the relevant international human rights standards. As such, this Court should prefer the interpretation of section 32 contended for by the Commission, being the approach that extends as far as possible, including in the field of health care and in the application of scientific progress, protections against marital status discrimination. [43] In order to give full and proper effect to such protections, the Court should resist wider constructions of section 32 (such as that proposed by the Prosecutors), which would derogate from rather than enhance those protections. [44]
Construction Question - 'Services' and sections 4 and 22(1) of the SD Act
45. The Prosecutors contend that section 22(1) of the SD Act should be construed in a manner that renders it consistent with CEDAW. [45] They then contend that because CEDAW contains 'no hint that would apply to services or practices relating to IVF', section 22 cannot be interpreted as having operation to IVF services. No authority is cited in support of this contention. The Commission submits that this contention is manifestly flawed.
46. First, for the purpose of section 22(1) of the SD Act, a 'service' is relevantly defined in section 4(d) of the SD Act to include services of the kind provided 'by members of any profession or trade'. [46] The terms of the ITA make clear that the 'service' in question is a service provided by licensed medical practitioners. [47] The services may only be delivered at hospitals licensed under section 93 of the ITA.
47. Secondly, the appropriate characterisation of services to assist in the treatment of infertility is as health care services. In this respect article 12 of CEDAW places States Parties under an obligation to eliminate discrimination against women in the field of health care in order to ensure, on a basis of equality between men and women, access to health care services.
48. The Prosecutors appear to place some reliance upon the fact that IVF is not mentioned in CEDAW. Such an approach misconceives the proper approach to interpreting international human rights instruments. CEDAW, like other international human rights treaties, is a 'living instrument' and it must be interpreted in light of present day conditions. [48] Accordingly, whether IVF technology was known or contemplated in 1979 is irrelevant to the nature and scope of the human rights protected by CEDAW.
49. Article 12 of CEDAW provides a clear basis for power to enact a law that concerns the provision of health care services. [49] Section 4 of the SD Act together with section 22(1) is reasonably appropriate and adapted to give effect to the terms of CEDAW. [50]
The Validity Question - section 22 of the SD Act
50. In paragraph 4(b) of the revised Notice of a Constitutional Matter filed on 15 June 2001, the Prosecutors gave notice of a challenge to the validity of section 22(1) of the SD Act to the extent that it would apply to the 'treatment procedure' referred to in section 8 of the ITA.
51. In paragraph 29 of the Prosecutors' submissions, they frame the issue in different terms by contending that CEDAW provides no basis for section 22 of the SD Act insofar as it 'is concerned with discrimination on the ground of marital status.'
52. The Commission contends that in framing the question of validity of section 22(1) in this way, the Prosecutors seek to raise two quite distinct and separate issues. They are:
(a) whether, insofar as section 22(1) of the SD Act covers services of the nature provided under section 8 of the ITA (being services to treat infertility), it is appropriate and adapted to the purpose of implementing CEDAW; and
(b) whether the proscription of marital status discrimination in the provision of services is appropriate and adapted to the purpose of implementing CEDAW.
53. It appears, from paragraphs 23-27 of the Prosecutors' submissions, that the first issue is now raised by the Prosecutors in support of an argument that the definition of 'services' in the SD Act should be read contrary to section 4 of the SD Act, in that the service is defined by reference to the characteristic of the person receiving the service rather than the nature of the service contemplated by section 4(a) - (c) or the status of the service provider contemplated by section 4(d) - (e).
54. The Commission contends that the Prosecutors wrongly seek to have the question of the validity of section 22(1) of the SD Act considered in isolation from the remainder of the SD Act.
Section 9 of the SD Act
55. Section 9 of the SD Act provides the starting point for the validity question. Sections 9(2) and 9(4) make clear that the SD Act is an act of limited effect. Its terms have effect by the operation of section 9(3) and sections 9(5) to (20), which reflect relevant heads of power. The SD Act therefore does not solely rely on CEDAW for validity. Section 9(10) of the SD Act provides that where CEDAW is in force, Part II (excluding sections 19, 26 and 27) and Part III (excluding sections 28D and 28L) have effect to the extent to which the terms of the SD Act give effect to CEDAW, in relation to discrimination against women. The Commission understands the Prosecutors to be challenging on the terms of the SD Act with respect to the effect of section 9(10) but not otherwise.
Marital status and the provision of services
56. The Commission submits that it is artificial to try to limit the question of validity of section 22 of the SD Act by reference to marital status discrimination. For the reasons outlined in paragraphs 47 and 48 above, there are clear terms in CEDAW which support the enactment of a Commonwealth law to prevent discrimination in the provision of 'services' as defined by section 4 of the SD Act. The proper question of the validity turns on the validity of section 6 of the SD Act, which is specifically concerned with marital status, not section 22 as contended by the Prosecutors.
57. In this respect, the Commission submits that there is no question that section 6 of the SD Act is a valid law supported by CEDAW.
58. Article 24 of CEDAW imposes upon Australia an obligation to adopt all necessary measures at the national level aimed at recognising the full realisation of the rights recognised in CEDAW. Article 2 of CEDAW imposes upon Australia obligations to prohibit, including via appropriate legislative measures, discrimination against women.
59. 'Discrimination' is defined in article 1 of CEDAW. In interpreting that provision, this Court is bound to consider the ordinary meaning of article 1, in light of the objects and purposes of CEDAW [51] (which include the elimination of discrimination against women 'in all its forms').[52]
60. The Commission submits that that interpretive approach leads to the conclusion that the term 'discrimination' encompasses discrimination against women on the basis of their marital status. [53] Marital status discrimination has resulted in distinctions, exclusions or restrictions being applied to women of a particular marital status in, inter alia, their employment, [54] their education [55] and their financial arrangements and welfare entitlements. [56] Those distinctions, exclusions or restrictions have operated between women of differing marital statuses. Such treatment is, in the submission of the Commission, a form of discrimination 'made on the basis of sex' (as that phrase is used in article 1 of CEDAW). It involves the application of distinctions, exclusions or restrictions to women or to certain groups of women by reference to negative stereotypes associated with their sex, particularly stereotypical perceptions regarding the dependency of women upon men.
61. Discriminatory treatment of women by reference to such sex based stereotypes rather than by reference to individual merit frustrates the broader objects of CEDAW, including the promotion of equality between men and women. [57]
62. On that basis, the Commission submits that a distinction, exclusion or restriction that operates between women of differing marital status involves discrimination on the basis of sex within the meaning of article 1 of CEDAW. [58]
63. The inclusion of the words 'irrespective of their marital status' in article 1 (which phrase is apparently relied upon by both the Prosecutors in paragraphs 25 and 29 of their submissions dated 15 June 2001 and by WEL in paragraphs 27 and 29 of their submissions dated 17 July 2001) supports the Commission's contention that the terms of article 1 incorporate marital status discrimination against women.
64. Further or alternatively, the Commission would support paragraphs 11 to 19 of the Attorney-General of the Commonwealth's submissions, insofar as those submissions contend that CEDAW contains, in addition to a concern to ensure equality between men and women, a concern to ensure equality between women of different marital statuses. However, the Commission would contend that that concern is not appropriately described as nor conceived of as a 'second order' obligation or concern. [59] Rather, it is part of a broader and more fundamental obligation, embodied in CEDAW and elsewhere, to afford to women the opportunity for full development of their potentialities as an element of their human dignity. [60]
The travaux préparatoires
65. The Court may have regard to the travaux préparatoires of CEDAW for the purposes of confirming the interpretation of the words of article 1 that the Commission submits follows from the ordinary meaning of the words and a consideration of the objects and purposes of CEDAW. [61] The drafting of CEDAW commenced in 1974. The United Nations Commission on the Status of Women (CSW) set up a working group ('Working Group 1') to prepare a text of a single draft convention on the elimination of discrimination against women. [62] Early drafts prepared by Working Group 1 did not include, in article 1, the words 'irrespective of marital status'. Rather, the words 'whether married or unmarried' appeared in early versions of articles 10 (dealing with education) and 11 (dealing with economic and social life). [63] As is the case with the adopted version of CEDAW, the early version of article 16 also dealt with matters affecting the rights of women in relation to marriage and family relations.
66. It is clear, from comments made during discussions of Working Group 1, that those articles were seen as requiring States Parties to proscribe marital status discrimination in the areas covered by those articles, including such discrimination as between married and unmarried women. [64] The draft Convention was approved by the CSW and transmitted to the United Nations Economic and Social Council ('EcoSoc').
67. On 12 May 1977, EcoSoc passed a resolution, inter alia, inviting comments on the draft convention from member states. In response, Canada commented that it wished to see:
'the inclusion of an introductory article to the draft Convention, clearly proscribing discrimination on the basis of marital status.' [65]
68. On 29 September 1978, the General Assembly established a further working group ('Working Group 2'). During the deliberations of Working Group 2, the United Kingdom proposed an amended version of article 16 that included the words 'whether married or unmarried'. However, in line with the comments of Canada referred to above, Working Group 2 decided to delete the words 'whether married or unmarried' from articles 10, 11 and the version of article 16 proposed by the United Kingdom, on the basis that the concept of marital status discrimination would be included in article 1. [66] Working Group 2 subsequently amended article 1 by inserting the words 'irrespective of marital status'. [67]
69. On the basis of the above, the Commission submits that the travaux préparatoires confirm the construction of articles 1, 2 and 24 of CEDAW that the Commission contends for, in that they:
- confirm that articles 1, 2 and 24 were intended to contain a general proscription against marital status discrimination, [68] obligating States Parties to adopt legislative measures to prohibit marital status discrimination against women; and
- confirm that that obligation was to extend to the proscription of discrimination between women of differing marital status.
70. Further, subsequent state practice in relation to CEDAW confirms that the States Parties accept that CEDAW extends to marital status discrimination. In 1986, the United Kingdom entered a reservation upon ratification that indicated that it was of the view that the inclusion of the words 'irrespective of marital status' might render discriminatory differences of treatment accorded to single women as against married women
That reservation was in the following terms:
'With reference to the provisions of the Sex Discrimination Act 1975 and other applicable legislation, the United Kingdom's acceptance of article 1 is subject to the reservation that the phrase 'irrespective of marital status' shall not be taken to render discriminatory any difference of treatment accorded to single persons as against married persons, so long as there is equality of treatment as between married men and married women and as between single men and single women' [69]
71. It is further relevant to note the following comment made by Canada:
'It is understood that the term 'discrimination against women' means any act or practice which distinguishes women from other citizens because of their sex and/or marital status in such a way as to prevent them from fully realising their human rights and fundamental freedoms in all areas of national life.' [70]
General Recommendations & Concluding Observations
72. While the decisions or 'views' of the UN human rights treaty bodies are not binding on this Court, they are significant, being those of a Committee composed of experts from a wide range of countries. [71] In construing the provisions of an international human rights instrument, Australian courts give weight to the views of specialist international courts and the human rights treaty bodies established to supervise implementation by States parties of their obligations under the provisions of particular human rights treaties. [72]
73. The Committee on the Elimination of Discrimination Against Women (the 'CEDAW Committee') is the expert body with responsibility for considering the progress made in the implementation of CEDAW. [73] It considers reports prepared by States Parties on the legislative, judicial, administrative or other measures adopted to give effect to CEDAW and the progress made by States Parties in that respect. [74] It also has the power to make 'suggestions and general recommendations' based on that material. [75] The exercise of those functions and powers necessarily involves the interpretation of the provisions of CEDAW. [76] The General Recommendations and Concluding Comments on Country Reports thus constitute an expert interpretation of the provisions of CEDAW to which this Court should give weight.
74. The CEDAW Committee has, in those General Recommendations and Concluding Comments, interpreted the provisions of CEDAW as proscribing discrimination against women on the ground of marital status. [77] Again, such an interpretation is consistent with the interpretation of articles 1 and 2 contended for by the Commission above.
Other relevant instruments
75. The Commission notes in addition that a number of other international and regional human rights instruments [78] either expressly include or have been interpreted as including marital status discrimination as a form of discrimination 'made on the basis of sex'. In relation to Article 1 of the Convention Concerning Discrimination in respect of Employment and Occupation this Court impliedly adopted such an interpretation. [79]
76. In summary, the Commission submits that the application of section 22 of the SD Act to marital status discrimination gives effect to CEDAW. The operation of that section upon the subject matter of this case is therefore supported by section 9(10) of the SD Act.
77. Further section 6 of the SD Act when considered alone or in conjunction with section 22(1) is reasonably appropriate and adapted to give effect to the terms of CEDAW. [80]
Conclusion
78. The Commission submits that the applications for prerogative relief should be dismissed.
Dated: 30 August 2001
Bret Walker
Kate Eastman Tel: 02 9230 3213 Fax: 02 9232 8435
1. See Order made by Gummow J at pages 270 - 271 of the Joint Application Book.
2. See paragraphs 1 and 2 of the Prosecutors' submissions dated 15 June 2001.
3. McBain v The State of Victoria (2000) 99 FCR 116.
4. ATS 1983, No. 0009, UNTS 1249 page 13. The Convention is set out in the Schedule to the SD Act. The Commonwealth of Australia signed CEDAW on 17 July 1980. CEDAW entered into force for Australia on 27 August 1983. Australia initially entered a reservation in respect of CEDAW regarding paid maternity leave and the Commonwealth Defence Force Policy excluding women from combat and combat related duties. On 14 April 2000, Australia withdrew that part of the reservation that related to Defence Force Policy. It deposited a new reservation that was limited to the exclusion, under such a policy, of women from combat duties.
5. The Commission also refers to the Affidavit of Prudence Jane Goward sworn on 2 August 2001 and contained in the Joint Application Book at pages 252 to 267.
6. See (2000) 99 FCR 116 at 121.
7. See paragraph 18 of the Prosecutors' submissions dated 15 June 2001.
8. The SD Act makes it unlawful to 'discriminate' on various grounds. It also makes it unlawful to sexually harass a person (see section 28A of the SD Act) and to victimise a person (section 94 of the SD Act). Complaints of discrimination made unlawful by the SD Act are made to the Commission under Part IIB of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) ('HREOCA') (see definition of unlawful discrimination in section 3 of HREOCA). Following termination of such a complaint by the President of the Commission (under section 46PE or 46PH of HREOCA), a person who was an affected person in relation to the complainant may make an application to the Federal Court or the Federal Magistrates Service alleging unlawful discrimination by one or more of the respondents to the complaint (see section 46PO of HREOCA).
13. Employment (sections 14 - 20), Education (section 21), Goods, services and facilities (section 22), Accommodation (section 23), Land (section 24), Clubs (section 25) and the Administration of Commonwealth Laws and Programs (section 26).
14. See generally the Commonwealth Sex Discrimination Commissioner "Report on Review of Permanent Exemptions under the Sex Discrimination Act 1984" AGPS Canberra 1992.
15. See, by way of example, X v Commonwealth (1999) 200 CLR ± Xiros v Fortis Life Assurance Limited [2001] FMC 15, (2001) EOC 93-143, paragraph 12 and X v McHugh for the Auditor General of Tasmania (1994) EOC 92-623, per Wilson P. At the time that section 32 was enacted, section 78 of the SD Act (repealed on 13 April 2000 as part of the amendments introduced by the Human Rights Legislation Amendment Act (No.1) 1999 (Cth) removing from the Commission the function of determining discrimination complaints) provided that, in determining whether an act was unlawful under the SD Act, the Commission was not required to have regard to any exemption or exception unless evidence regarding its applicability was before the Commission.
16. See X v Commonwealth (1999) 200 CLR 177 at 223 para 145 per Kirby J making a distinction between exemptions which apply because of their application to particular factual circumstances and 'non application' provisions. See also at Full Federal Court reported as Commonwealth v Human Rights and Equal Opportunity Commission (1998) 76 FCR 513 at 549 per Mansfield J.
17. See paragraph 8 of the submissions of the Attorney-General for the Commonwealth filed 28 August 2001.
18. See Clyde Engineering Co Ltd v Cowburn (1926) 37 CLR 466 at 478 per Knox CJ and Gavan Duffy J. In the present matter, the SD Act conferred upon Ms Meldrum a right not to be discriminated against in the provision of services on the ground of her marital status. She was entitled to make a complaint to the Commission and, following termination of such a complaint, make an application to the Federal Court or the Federal Magistrates Service: see MW and Ors v Royal Women's Hospital (1997) EOC 92-886. The fact that Ms Meldrum could waive or abandon those rights or that her pursuit of those rights could potentially be defeated by the operation of a statutory defence (assuming the Prosecutors and Attorney-General of the Commonwealth are correct in their construction of section 32) is not to the point (see also Blackley v Devondale Cream (Vic) Pty Limited (1968) 117 CLR 253 at 272 per Menzies J and Viskauskas v Niland (1983) 153 CLR 280 at 295 per Gibbs CJ and Mason, Murphy, Wilson and Brennan JJ).
20. See section 15AB(1) of the Acts Interpretation Act 1901 (Cth).
21. See Senator Evans foreshadowing the amendment adding section 32 in a Ministerial Statement, Senate Hansard p1893, 20 October Senator Ryan during her Second Reading Speech to the Bill incorporating that and other amendments, Senate Hansard p2914, 29 November Senator Ryan during the Senate debates, Senate Hansard p3964-5, 16 December Mr Young, House of Representatives Hansard, p68, 28 February 1984.
22. See eg Senator Ryan during the Senate debates, Senate Hansard p3964. See eg Senator Ryan during the Senate debates, Senate Hansard p3964-5, 16 December Mr Young, House of Representatives Hansard, p68, 28 February 1984.
23. See X v Commonwealth (1999) 200 CLR 177 at 233 para 147 per Kirby J and Qantas Airways Limited v Christie (1998) 193 CLR 280 at 333 particularly footnotes 168 and 169 per Kirby J.
24. Regard may be had to the objects under section 15AA(1) of the Acts Interpretation Act 1901 (Cth). The principle that one may have regard to the statutory objects is of particular significance in the case of legislation that protects or enforces human rights. In construing such legislation, this Court has a particular responsibility to take account of and give effect to the statutory purpose. See Waters v Public Transport Corporation (1991) 173 CLR 349 at 359 per Mason CJ and Gaudron J, IW v City of Perth (1997) 191 CLR 1 at 14 per Brennan CJ and McHugh, at 22- 23 per Gaudron J, at 27 per Toohey J, at 39 and 41- 42 per Gummow J and 58 per Kirby J, X v Commonwealth (1999) 200 CLR 177 at 223 para 146 per Kirby J and Qantas Airways Limited v Christie (1998) 193 CLR 280 at 332 per Kirby J.
25. Declaration on the Elimination of Discrimination against Women, proclaimed by General Assembly Resolution 2263(XXII) of 7 November 1967. As at 30 August 2001, there are 168 States Party to CEDAW, being the second most widely ratified United Nations human rights convention.
26. See Cook R 'Gender, Health and Human Rights' in Mann J ed Health and Human Rights, Routledge 1999 at p259.
28. See articles 1 and 2(b) of CEDAW.
29. See article 16(d) and (e) of CEDAW. The specific rights in relation to a woman's right to control her reproductive health have been confirmed in the 1968 Proclamation of Teheran (Proclaimed by the International Conference on Human Rights at Teheran on 13 May 1968, see in Human Rights: A Compilation of International Instruments, Volume 1 Part 1, Universal Instruments ST/HR/1/Rev. 5 (Vol I/Part1) 1994 pp51-54), the Declaration on Social Progress and Development (Proclaimed by General Assembly Resolution 2542 (XXIV) of 11 December 1969, see in Human Rights: A Compilation of International Instruments, Volume 1 Part 2, Universal Instruments ST/HR/1/Rev. 5 (Vol I/Part 2) 1994 pp501-514), the World Population Plans of Action of Bucharest (1974) (E/CONF.60/19) and Mexico City (1984) (E/CONF.76/19). See also General Recommendation 21 of the CEDAW Committee (13th session, 1994, U.N. Doc. HRI/GEN/1/Rev.4 (2000) p173).
31. Leroux v Brown (1852) 12 C.B. ̡ The Zollverein (1856) Swab. ` The Annapolis (1861) Lush. ħ Jumbunna Coal Mine NL v Victorian Coal Miners' Association (1908) 6 CLR ĵ Zachariassen v Commonwealth (1917) 24 CLR 166. See also Maxwell on the Interpretation of Statutes 7th Ed, 1929, at 127.
32. Murray v Charming Betsy (1804) 2 Cranch 64, v also United States v Fisher (1805) 2 Cranch 390 and the authorities cited in footnote 88.
33. Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 38 per Brennan, Deane and Dawson JJ.
34. Dietrich v The Queen (1992) 177 CLR 292 at 306-07 per Mason CJ and McHugh J; also Minister for Foreign Affairs and Trade v Magno (1992) 37 FCR 298 at 304 per Gummow J.
35. Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 287 per Mason CJ and Deane J. Generally A Simpson & G Williams, 'International Law and Constitutional Interpretation' (2000) 11 Public Law Review 205 at Ð J Spigelman, 'Access to Justice and Human Rights Treaties' (2000) 22 Sydney Law Review 141 at 149.
36. Ut res magis valeat quam pereat: Davies and Jones v Western Australia (1904) 2 CLR 29 at 43 per Griffith CJ; Federal Commissioner of Taxation v Munro; British Imperial Oil Co Ltd v Federal Commissioner of Taxation (1926) 38 CLR 153 at 180 per Isaacs J. Also Maxwell on the Interpretation of Statutes 7th Ed, 1929, at 127.
37. Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 14 per Mason CJ.
38. See Leroux v Brown (1852) 12 C.B. ̡ The Zollverein (1856) Swab. ` The Annapolis (1861) Lush. ħ Jumbunna Coal Mine NL v Victorian Coal Miners' Association (1908) 6 CLR ĵ Zachariassen v Commonwealth (1917) 24 CLR 166. See also Maxwell on the Interpretation of Statutes 7th Ed, 1929, at 127. Also L Brilmayer, 'Federalism, State Authority, and the Preemptive Power of International Law' [1994] The Supreme Court Review 295 at 309, 319.
39. Vienna Convention on the Law of Treaties 1969 (ATS 1974 No.2), ('VCLT') article 26. The VCLT entered into force for Australia and generally on 27 January 1980.
40. From the perspective of the international legal regime, where responsibility arises, a State may not invoke the provisions of its internal law as justification for its failure to perform its treaty obligations: VCLT article 27.
41. See articles 2(2) and 15(1)(b) of the International Covenant on Economic Social and Cultural Rights ('ICESCR'). Adopted by UN General Assembly 16 December 1966. Signed for Australia 18 December 1972. Instrument of ratification deposited for Australia 10 December 1975. Entry into force for Australia 10 March 1976. ATS 1976 No. UNTS 993 p3.
42. See articles 2 and 7 of the Universal Declaration of Human Rights adopted and proclaimed by General Assembly resolution 217 A (III) of 10 December 1948 and articles 23 and 26 of the International Covenant on Civil and Political Rights. Adopted by UN General Assembly 16 December 1966. Signed for Australia 18 December 1972. Instrument of ratification, with declarations and reservations, deposited for Australia 13 August 1980. Entry into force for Australia 13 November 1980 (UNTS 1197 p411). See also Danning v The Netherlands Communication 180/84 UN Doc Supp No 40 (A/42/40) at 151 of 9 April 1987, Sprenger v The Netherlands Communication 395/90 UN Doc CCPR/C/44/D/395/1990 of 8 April 1992 and Hoofdman v The Netherlands Communication 602/94 UN Doc CCPR/C/64/D/602/1994 of 25 November 1998.
43.Although the instrument is not binding as a matter of international law, such a construction is also consistent with recent statements concerning the protection of human rights for women set out in paragraphs 94 to 97 and 179 of the Beijing Declaration and Platform for Action 1995, UN Doc A/CONF.177/20 (17 October 1995).
44. As regards the Attorney General's submissions to the effect that States Parties have a 'margin of appreciation' in relation to the implementation of CEDAW (referring to the jurisprudence surrounding the European Convention on Human Rights - see paragraphs 20 and 24 of the Attorney's submissions of 28 August 2001), the Commission notes that that doctrine has not been applied to the ICCPR and is likewise inapplicable to CEDAW: See Länsman v Finland Communication 511/92 UN Doc CCPR/C/52/D/511/1992 of 8 November 1994 and Joseph et al, The International Covenant on Civil and Political Rights (2000) OUP at pages 17 and 394 (para 18.21).
45. See paragraphs 23 - 28 of the Prosecutors' submissions.
46. IW v City of Perth (1997) 191 CLR 1 at 23-24 per Gaudron and Dawson JJ and 41-45 per Gummow J.
48. See Cook R 'Reservations to the Convention on the Elimination of All Forms of Discrimination Against Women' (1990) 30 Virginia Journal of International Law 643 at 667 ff and generally Jacobs F and White R European Convention on Human Rights, OUP 1996 at pages 26 to 38 and decisions of the European Court of Human Rights: Marckx v Belgium (1979) 2 EHRR 330 at 346 para 41, Tyrer v United Kingdom (1979) 2 EHRR 1 at 10 para 31, and United Nations Human Rights Committee, Hoofdman v Netherlands 602/94 per Evatt cited in note 42 above. See also Joseph et al, The International Covenant on Civil and Political Rights (2000) OUP at p19 and M de Blois 'The Fundamental Freedom of the European Court of Human Rights' in R Lawson and M de Blois (eds) The Dynamics of the Protection of Human Rights in Europe Vol III (1994) Martinus Nijhoff Publishers.
49. See also articles 10(h), 11(3), 12(1) and 14(2)(b) of CEDAW which concern access to information about scientific advancements and family planning. Further, when read with article 15 of the ICESCR the development of science and technologies are clearly contemplated by the drafters of the conventions.
50. Koowarta v Bjelke-Petersen (1982) 153 CLR 168 at 189-192 per Gibbs CJ, 211-221 per Stephen J and 224 per Mason J; Commonwealth v Tasmania (1983) 158 CLR 1 (the 'Dams case') at 131 per Mason J, 172 per Murphy J, 232 per Brennan J, 259 per Deane J; R v Burgess; ex parte Henry (1936) 55 CLR ɠ Airlines of New South Wales Pty Ltd v New South Wales (No 2) (1965) 113 CLR 54.
51. See article 31(1) of the VCLT. 52. See the Preamble to CEDAW and article 2 of CEDAW (emphasis added). See also 'Status of Convention on the Elimination of All Forms of Discrimination Against Women, Report of the Secretary General', UN Doc A/41/608 at 5.
53. See N Burrows 'The 1979 Convention on the Elimination of All Forms of Discrimination Against Women' (1985) XXXII (3) Netherlands International Law Review p419 at ƪ R Cook, 'Reservations to the Convention on the Elimination of All forms of Discrimination Against Women' (1990) 30 Virginia Journal of International Law 643 at ʞ R Cook 'International Human Rights and Women's Reproductive Health' in 'Women's Rights Human Rights' J Peters and A Wolper (eds) (1995) Routledge p256 at pp 260-1.
54. International Labour Review, Vol LXXXV,January - June 1962, p262, 'Discrimination in Employment or Occupation on the Basis of Marital Status- I'.
55. See L Rehof 'Guide to the travaux préparatoires of the United Nations Convention on the Elimination of All Forms of Discrimination Against Women' Martinus Nijhoff Publishers 1993 p113.
56. See eg J Mertus 'State Discriminatory Family Law and Customary Abuses' in 'Women's Rights Human Rights' J Peters and A Wolper (eds) (1995) Routledge p135 at p142. See generally T Stang Dahl "Women's Rights to Money" (1984) 12 International Journal of Sociology of Law 137.
57. See the Preamble to CEDAW.
58. Compare with paragraph 10 of the Prosecutors' submissions in reply dated 3 August 2001.
59. Compare with paragraphs 14, 19 and 24 of the Attorney-General's submissions of 28 August 2001.
60. See Preamble to CEDAW; R Cook, 'Reservations to the Convention on the Elimination of All forms of Discrimination Against Women' (1990) 30 Virginia Journal of International Law 643 at 670 and B Hernandez 'To Bear or Not to Bear: Reproductive Freedom as an international human right' (1991) XVII:2 Brooklyn Journal of International Law p309 at 343.
61. See article 32 of the VCLT. See also Minister for Foreign Affairs and Trade v Magno (1992) 37 FCR 298 at 305 per Gummow J; Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 231 per Brennan CJ and 251-256 per McHugh J and Dams Case, op cit, at p94 per Gibbs CJ.
62. See L Rehof 'Guide to the travaux préparatoires of the United Nations Convention on the Elimination of All Forms of Discrimination Against Women' Martinus Nijhoff Publishers 1993, p9.
63. See Consideration of Proposals Concerning a New Instrument or Instruments of International Law to Eliminate Discrimination Against Women - Report of the Working Group to the Commission on the Status of Women United Nations Economic and Social Council, Commission on the Status of Women, UN Doc E/CN.6/574 18 January 1974 at pp 7 and 11.
64. During the deliberations of Working Group 1, the United States representative proposed an amendment to the draft version of article 10 to delete the words 'married or unmarried'. That amendment was withdrawn after the representative from Indonesia pointed out that, in her country, young unmarried women were unable to attend secondary school (see L Rehof 'Guide to the travaux préparatoires of the United Nations Convention on the Elimination of All Forms of Discrimination Against Women' Martinus Nijhoff Publishers 1993 p113). Note also that, during the deliberations of Working Group 2 (discussed further below), the Cuban representative expressed concern that the deletion of the words 'whether married or unmarried' from a version of article 16 proposed by the United Kingdom, would result in unmarried women ceasing to be protected and being deprived of their rights (see 'Report of the Working Group of the Whole on the Drafting of the Convention on the Elimination of Discrimination Against Women' United Nations General Assembly, UN Doc A/34/60 2 March 1979, paragraph 195).
65. See 'Draft Convention on the Elimination of Discrimination Against Women - Report of the Secretary General' United Nations General Assembly, UN Doc A/32/218/Add.1 12 October 1977, paragraph 17.
66. See 'Report of the Working Group of the Whole on the Drafting of the Convention on the Elimination of Discrimination Against Women' United Nations General Assembly, UN Doc A/34/60 2 March 1979, paragraphs 12, 13, 59, 60, 61 and 193.
67. Ibid, paragraphs 261 - 262.
68. The subsequent practice of States Parties, which is relevant on an issue of interpretation by reason of article 31(3) of the VCLT, can in part be derived from relevant reservations and declarations of interpretation, as well as from comments submitted by States Parties (M Nowak UN Covenant on Civil and Political Rights: CCPR Commentary (1993), NP Engel pp XXIII-XXIV).
69. See L Rehof, 'Guide to the travaux préparatoires of the United Nations Convention on the Elimination of All Forms of Discrimination Against Women' (Martinus Nijhoff Publishers 1993 p271). That reservation was subsequently withdrawn (see 'Multilateral treaties deposited with the Secretary General. Status as at 31 December 2000. Vol 1, Part 1' ST/LEG/SER.E/19 pp249-250). In announcing the withdrawal of the reservation, the United Kingdom stated that, while it continued to believe that that reservation was an accurate statement of the meaning of article 1, there was no need for an explicit statement to that effect (see 'Consideration of Reports Submitted by States Parties Under Article 18 of the Convention. Third Periodic Reports of States Parties. United Kingdom of Great Britain and Northern Ireland' UN Doc CEDAW /C/UK/3 of 31 July 1995, page 126).
70. See 'Status of Convention on the Elimination of All Forms of Discrimination Against Women, Report of the Secretary General' UN Doc A/41/608 at p5. That comment was made following an invitation to States Parties to consider whether the reservations made to CEDAW were consistent with the object and purpose of CEDAW (within the meaning of article 28(2) of CEDAW) (ibid p4).
71. H Burmester, 'Impact of Treaties and International Standards' (1995) 17 Sydney Law Review 127 at 145.
72. See as examples of references to the jurisprudence of human rights treaty bodies Mabo v Queensland (No 2) (1992) 175 CLR 1 at 42 per Brennan J (with whom Mason CJ and McHugh J agreed); Dietrich v The Queen (1992) 177 CLR 292 at 307 per Mason CJ and McHugh J; Johnson v Johnson (2000) 174 ALR 655 at 665 para [38] per Kirby J; Commonwealth v Bradley (1999) 95 FCR 218, per Black CJ at í Commonwealth v HREOC [2000] FCA 1854 (15 December 2000), (2001) EOC 93-119 per Katz J at paragraph 36.
76. A Byrnes 'The "Other" Human Rights Treaty Body: The Work of the Committee on the Elimination of Discrimination Against Women' 14 The Yale Journal of International Law (1989) p1.
77. As WEL and the Attorney-General of the Commonwealth have noted (see paragraphs 32 and 33 of WEL's submissions of 17 July 2001 and paragraph 18 of the submissions for the Attorney-General of the Commonwealth filed 28 August 2001), the CEDAW Committee has, in General Recommendations 21 and 24 addressed specific areas of marital status discrimination. Moreover, in its comments on the second Country Report submitted by New Zealand, the CEDAW Committee noted, amongst the positive developments giving effect to the provisions of CEDAW, the enactment of the Human Rights Act 1993 (NZ), which was said to have: 'extended the area of prohibited discrimination to cover sex, including sexual harassment, marital and family status' (see CEDAW Committee, 'Concluding Observations, New Zealand', UN Doc A/49/38, paras 608-665 (1994) at para 658 and Human Rights Act 1993 (NZ), sections 21 and 44). It seems clear from those comments that the CEDAW Committee regarded 'discrimination on the basis of sex', as that term is defined in article 1 of CEDAW, as having a broad content, incorporating, inter alia, marital status discrimination against women.
78. See article 1 of the Convention Concerning Discrimination in respect of Employment and Occupation; article 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms; 'Discrimination in Employment or Occupation on the Basis of Marital Status- I' International Labour Review, Vol LXXXV, January - June 1962, pĆ International Labour Office 'Equality in Employment and Occupation' ߌ article 2 of the Council of the European Communities Directive 76/207/EEC of 9 February article 3 of the Council of the European Communities Directive 86/613/EEC of 11 December 1986 and article 6 of the Council of the European Communities Directive 86/378/EEC of 24 July 1986.
79. See Victoria v The Commonwealth (1996) 187 CLR 416 at 529-532 per Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ.
Last updated 7 January 2002.