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
No C22 of 2000
IN THE MATTER
of an application for writs of mandamus, certiorari and prohibition
JUSTICE ROSS ALAN SUNDBERG, Justice of the Federal Court of Australia
CATHOLIC BISHOPS CONFERENCE and the
AUSTRALIAN EPISCOPAL CONFERENCE OF THE ROMAN CATHOLIC CHURCH
(ACN 000 665 958)
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. 
2. The Prosecutors'
submissions  identify two questions for the proceedings.
(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  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
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'). 
6. The Commission's
submissions  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. 
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.  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
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.  Such an assumption cannot be supported
on a proper construction of the SD Act.
Operation of the
14. Part I of the
SD Act does not define discrimination generally but by reference to specific
types of discrimination on the following grounds:
- sex; 
- marital status;
- pregnancy or potential
pregnancy;  and
- family responsibilities.
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. 
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.  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.  The application
of such defences to a particular case does not even arise until that onus
21. Those statutory
defences should be contrasted to the provisions that delimit the jurisdiction
of the SD Act  in Part 1:
- As the Attorney-General
of the Commonwealth has noted,  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.
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. 
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. 
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) 
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. 
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. 
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. 
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.
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
 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. 
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; 
- an obligation
to eliminate discrimination against women on the grounds of marital
- an obligation
to eliminate discrimination against women in all matters relating to
marriage and family relations;  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. 
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.  If
the Parliament intends to effect inconsistency 'it must express its intention
with irresistible clearness to induce a Court to believe that it entertained
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.  This Court has said that a common sense
approach suggests that Parliament intended to legislate in accordance
with its international obligations.  In more recent
cases, the Court has indicated that a narrow conception of ambiguity is
to be rejected. 
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.  This approach accords in
turn with section 15A of the Acts Interpretation Act 1901 (Cth).
41. The presumption
which the Commission contends ought be preferred is not only consistent
with older authority, long-established in Australia and elsewhere, 
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.  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. 
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;
- 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. 
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.  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. 
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.  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'.  The terms
of the ITA make clear that the 'service' in question is a service provided
by licensed medical practitioners.  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.  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.  Section 4 of
the SD Act together with section 22(1) is reasonably appropriate and adapted
to give effect to the terms of CEDAW. 
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
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.
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.
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  (which include
the elimination of discrimination against women 'in all its forms').
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.  Marital status
discrimination has resulted in distinctions, exclusions or restrictions
being applied to women of a particular marital status in, inter alia,
their employment,  their education 
and their financial arrangements and welfare entitlements. 
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
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. 
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. 
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
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.  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. 
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.  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.  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).  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.  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
of an introductory article to the draft Convention, clearly proscribing
discrimination on the basis of marital status.' 
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. 
Working Group 2 subsequently amended article 1 by inserting the words
'irrespective of marital status'. 
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,  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
was in the following terms:
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' 
71. It is further
relevant to note the following comment made by Canada:
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.' 
& Concluding Observations
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. 
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. 
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. 
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. 
It also has the power to make 'suggestions and general recommendations'
based on that material.  The exercise of those
functions and powers necessarily involves the interpretation of the provisions
of CEDAW.  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.
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. 
Again, such an interpretation is consistent with the interpretation of
articles 1 and 2 contended for by the Commission above.
The Commission notes in addition that a number of other international
and regional human rights instruments  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.
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.
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. 
The Commission submits that the applications for prerogative relief should
30 August 2001
Tel: 02 9230 3213
Fax: 02 9232 8435
See Order made by Gummow J at pages 270 - 271 of the Joint Application
See paragraphs 1 and 2 of the Prosecutors' submissions dated 15 June 2001.
McBain v The State of Victoria (2000) 99 FCR 116.
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.
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.
See (2000) 99 FCR 116 at 121.
See paragraph 18 of the Prosecutors' submissions dated 15 June 2001.
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).
Section 5 of the SD Act.
Section 6 of the SD Act.
Section 7 of the SD Act.
Section 7A of the SD Act.
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).
See generally the Commonwealth Sex Discrimination Commissioner "Report
on Review of Permanent Exemptions under the Sex Discrimination Act 1984"
AGPS Canberra 1992.
See, by way of example, X v Commonwealth (1999) 200 CLR 177; Xiros
v Fortis Life Assurance Limited  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.
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.
See paragraph 8 of the submissions of the Attorney-General for the Commonwealth
filed 28 August 2001.
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
(2000) 99 FCR 116 at 123.
See section 15AB(1) of the Acts Interpretation Act 1901 (Cth).
See Senator Evans foreshadowing the amendment adding section 32 in a Ministerial
Statement, Senate Hansard p1893, 20 October 1983; Senator Ryan
during her Second Reading Speech to the Bill incorporating that and other
amendments, Senate Hansard p2914, 29 November 1983; Senator Ryan
during the Senate debates, Senate Hansard p3964-5, 16 December
1983; Mr Young, House of Representatives Hansard, p68, 28 February
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 1983; Mr Young, House of Representatives Hansard, p68,
28 February 1984.
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.
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.
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.
See Cook R 'Gender, Health and Human Rights' in Mann J ed Health and
Human Rights, Routledge 1999 at p259.
See article 24 of CEDAW.
See articles 1 and 2(b) of CEDAW.
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).
See article 12 of CEDAW.
Leroux v Brown (1852) 12 C.B. 801; The Zollverein (1856) Swab.
96; The Annapolis (1861) Lush. 295; Jumbunna Coal Mine NL v
Victorian Coal Miners' Association (1908) 6 CLR 309; Zachariassen
v Commonwealth (1917) 24 CLR 166. See also Maxwell on the Interpretation
of Statutes 7th Ed, 1929, at 127.
Murray v Charming Betsy (1804) 2 Cranch 64, 118; also United States
v Fisher (1805) 2 Cranch 390 and the authorities cited in footnote
Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic
Affairs (1992) 176 CLR 1 at 38 per Brennan, Deane and Dawson JJ.
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.
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 208; J Spigelman, 'Access to Justice and Human Rights
Treaties' (2000) 22 Sydney Law Review 141 at 149.
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.
Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic
Affairs (1992) 176 CLR 1 at 14 per Mason CJ.
See Leroux v Brown (1852) 12 C.B. 801; The Zollverein (1856)
Swab. 96; The Annapolis (1861) Lush. 295; Jumbunna Coal Mine
NL v Victorian Coal Miners' Association (1908) 6 CLR 309; 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'  The
Supreme Court Review 295 at 309, 319.
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.
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.
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. 0005; UNTS 993 p3.
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.
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).
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).
See paragraphs 23 - 28 of the Prosecutors' submissions.
IW v City of Perth (1997) 191 CLR 1 at 23-24 per Gaudron and Dawson
JJ and 41-45 per Gummow J.
See section 6 of the ITA.
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
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.
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 608; Airlines of New South Wales Pty Ltd v New South
Wales (No 2) (1965) 113 CLR 54.
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.
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 426; 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; 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
International Labour Review, Vol LXXXV, January - June 1962,
p262, 'Discrimination in Employment or Occupation on the Basis of Marital
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.
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
See the Preamble to CEDAW.
Compare with paragraph 10 of the Prosecutors' submissions in reply dated
3 August 2001.
Compare with paragraphs 14, 19 and 24 of the Attorney-General's submissions
of 28 August 2001.
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.
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.
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.
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.
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).
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.
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.
Ibid, paragraphs 261 - 262.
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
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).
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)
H Burmester, 'Impact of Treaties and International Standards' (1995) 17
Sydney Law Review 127 at 145.
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  per Kirby J; Commonwealth v Bradley
(1999) 95 FCR 218, per Black CJ at 237; Commonwealth v HREOC 
FCA 1854 (15 December 2000), (2001) EOC 93-119 per Katz J at paragraph
See article 17(1).
See article 18.
See article 21(1).
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.
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.
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, p262; International
Labour Office 'Equality in Employment and Occupation' 1996; article 2
of the Council of the European Communities Directive 76/207/EEC
of 9 February 1976; 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.
See Victoria v The Commonwealth (1996) 187 CLR 416 at 529-532 per
Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ.
See note 50 above.
updated 7 January 2002.