Submission: Sex Discrimination Amendment Bill (No 1) 2000 (Cth)
Legal
SUBMISSION OF THE SEX
DISCRIMINATION COMMISSIONER
AND THE HUMAN
RIGHTS AND EQUAL OPPORTUNITY COMMISSION
TO THE SENATE
LEGAL AND CONSTITUTIONAL LEGISLATION COMMITTEE
ON THE SEX
DISCRIMINATION AMENDMENT BILL (NO 1) 2000
1. INTRODUCTION
1.1
The amendments effected by the Sex Discrimination Amendment Bill (No 1)
2000 (Cth) ("the Amendment Bill") go to the core of the guarantee of non
discrimination contained in the Sex Discrimination Act 1984 (Cth) ("the
SDA").
1.2
The provisions of the Amendment Bill are of great concern to the Human
Rights and Equal Opportunity Commission ("the Commission") and the Sex
Discrimination Commissioner ("the Commissioner") for a number of reasons
outlined below. This submission strongly opposes the proposed amendments
and recommends that the Bill be rejected in its entirety.
1.3
The Commission welcomes the opportunity to be consulted and to comment
on these critical issues for Australian men and women. It is the Commission's
view that changes to fundamental human rights guarantees should only be
considered after extensive consultation and public debate.
2. THE ROLE AND FUNCTIONS
OF THE SEX DISCRIMINATION COMMISSIONER AND THE COMMISSION
2.1
The Commission administers the SDA which is in part based on and annexes
the Convention on the Elimination of All Forms of Discrimination Against
Women ("CEDAW").
2.2
Under section 48(1) the SDA, the functions of the Commission are (inter
alia):
(d) to promote
an understanding and acceptance of, and compliance with, this Act;(e) to undertake
research and educational programs, and other programs, on behalf of
the Commonwealth for the purpose of promoting the objects of this Act;(f) to examine
enactments, and (when requested to do so by the Minister) proposed enactments,
for the purpose of ascertaining whether the enactments or proposed enactments
are, or would be, inconsistent with or contrary to the objects of this
Act, and to report to the Minister the results of any such examination;(g) on its own
initiative or when requested by the Minister, to report to the Minister
as to the laws that should be made by the Parliament, or action that
should be taken by the Commonwealth, on matters relating to discrimination
on the ground of sex, marital status, pregnancy or potential pregnancy
or to discrimination involving sexual harassment;(ga) to prepare,
and to publish in such manner as the Commission considers appropriate,
guidelines for the avoidance of discrimination on the ground of sex,
marital status, pregnancy or potential pregnancy and discrimination
involving sexual harassment;(gb) where the
Commission considers it appropriate to do so, with the leave of the
court hearing the proceedings and subject to any conditions imposed
by the court, to intervene in proceedings that involve issues of discrimination
on the ground of sex, marital status, pregnancy or potential pregnancy
or discrimination involving sexual harassment;(h) to do anything
incidental or conducive to the performance of any of the preceding
functions.
2.3
The Commission also administers the Human Rights and Equal Opportunity
Commission Act 1986 (Cth) ("the HREOCA"). The Convention on the Rights
of the Child is a "declared instrument" under s.47 of the HREOCA. Under
Part IIB of Division 1 of the HREOCA, the President of the Commission
has the function of investigating and conciliating complaints lodged with
the Commission.
2.4
Under s.11(1) of the HREOCA, the following functions (inter alia) are
conferred on the Commission:
(a) such functions
as are conferred on the Commission by the Racial Discrimination Act
1975, the Sex Discrimination Act 1984 or any other enactment;(aa) to inquire
into, and attempt to conciliate, complaints of unlawful discrimination;(ac) to deal
with complaints lodged under Part IIC;(e) to examine
enactments, and (when requested to do so by the Minister) proposed
enactments, for the purpose of ascertaining whether the enactments
or proposed enactments, as the case may be, are, or would be, inconsistent
with or contrary to any human rights, and to report to the Minister
the results of any such examination;(f) to inquire
into any act or practice that may be inconsistent with or contrary
to any human right, and;(i) where the
Commission considers it appropriate to do so - to endeavour, by conciliation,
to effect a settlement of the matters that gave rise to the inquiry;
and(ii) where the
Commission is of the opinion that the act or practice is inconsistent
with or contrary to any human right, and the Commission has not considered
it appropriate to endeavour to effect a settlement of the matters
that gave rise to the inquiry or has endeavoured without success to
effect such a settlement - to report to the Minister in relation to
the inquiry;(g) to promote
an understanding and acceptance, and the public discussion, of human
rights in Australia;(h) to undertake
research and educational programs and other programs, on behalf of the
Commonwealth, for the purpose of promoting human rights, and to co-ordinate
any such programs undertaken by any other persons or authorities on
behalf of the Commonwealth;(j) on its own
initiative or when requested by the Minister, to report to the Minister
as to the laws that should be made by the Parliament, or action that
should be taken by the Commonwealth, on matters relating to human rights;(k) on its own
initiative or when requested by the Minister, to report to the Minister
as to the action (if any) that, in the opinion of the Commission, needs
to be taken by Australia in order to comply with the provisions of the
Covenant, of the Declarations or of any relevant international instrument;(n) to prepare,
and to publish in such manner as the Commission considers appropriate,
guidelines for the avoidance of acts or practices of a kind in respect
of which the Commission has a function under paragraph (f);(o) where the Commission
considers it appropriate to do so, with the leave of the court hearing
the proceedings and subject to any conditions imposed by the court,
to intervene in proceedings that involve human rights issues; and(p) to do anything
incidental or conducive to the performance of any of the preceding functions.
2.5
These functions and responsibilities are based on Australia's international
obligations under CEDAW; the International Covenant on Civil and Political
Rights; the Convention on the Rights of the Child; the Declaration on
the Rights of the Child; the Declaration on the Rights of Disabled Persons;
the Declaration on the Rights of Mentally Retarded Persons; the Declaration
on the Elimination of All Forms of Intolerance and of Discrimination Based
on Religion or Belief; International Labour Organisation Discrimination
(Employment and Occupation) Convention 111; and the International Labour
Organisation (Workers with Family Responsibilities) Convention 156.
3. THE PROVISIONS OF THE SEX
DISCRIMINATION ACT
3.1
The objects
of the SDA are set out in section 3 as follows:
(a) to give effect
to certain provisions of the Convention on the Elimination of All Forms
of Discrimination Against Women; and(b) to eliminate,
so far as is possible, discrimination against persons on the ground
of sex, marital status, pregnancy or potential pregnancy in the areas
of work, accommodation, education, the provision of goods, facilities
and services, the disposal of land, the activities of clubs and the
administration of Commonwealth laws and programs; and(ba) to eliminate,
so far as possible, discrimination involving dismissal of employees
on the ground of family responsibilities; and(c) to eliminate,
so far as is possible, discrimination involving sexual harassment in
the workplace, in educational institutions and in other areas of public
activity; and(d) to promote
recognition and acceptance within the community of the principle of
the equality of men and women.
3.2
The SDA
prohibits both direct and indirect discrimination on a number of specific
grounds. These grounds are: sex, marital status, family responsibilities,
pregnancy and potential pregnancy. The SDA also contains prohibitions
on sexual harassment.
3.3
In relation to the ground of marital status, the relevant provisions of
the SDA are found in sections 4 and 6. Marital status is defined in section
4(1) as follows:
marital status
means the status or condition of being:(a) single;
(b) married;
(c) married but
living separately and apart from one's spouse;(d) divorced;
(e) widowed;
or(f) the de facto
spouse of another person.
3.4
De facto
spouse is defined in section 4(1) as follows:
de facto spouse,
in relation to a person, means a person of the opposite sex to the first-mentioned
person who lives with the first-mentioned person as the husband or wife
of that person on a bona fide domestic basis although not legally married
to that person.
3.5
Section 6 provides:
(1) For the purposes
of this Act, a person (in this subsection referred to as the discriminator)
discriminates against another person (in this subsection referred to
as the aggrieved person) on the ground of the marital status of the
aggrieved person if, by reason of:(a) the marital
status of the aggrieved person; or(b) a characteristic
that appertains generally to persons of the marital status of the
aggrieved person; or(c) a characteristic
that is generally imputed to persons of the marital status of the
aggrieved person; the discriminator treats the aggrieved person less
favourably than, in circumstances that are the same or are not materially
different, the discriminator treats or would treat a person of a different
marital status.(2) For the purposes
of this Act, a person (the discriminator) discriminates against another
person (the aggrieved person) on the ground of the marital status of
the aggrieved person if the discriminator imposes, or proposes to impose,
a condition, requirement or practice that has, or is likely to have,
the effect of disadvantaging persons of the same marital status as the
aggrieved person.(3) This section
has effect subject to sections 7B and 7D.
3.6
The SDA
prohibits discrimination on the ground of marital status in a number of
specific areas. These areas are: employment and superannuation (section
14), commission agents (section 15), contract workers (section 16), partnerships
(section 17), qualifying bodies (section 18), registered organisations
(section 19), employment agencies (section 20), education (section 21),
goods and services (section 22), accommodation (section 23), land (section
24), clubs (section 25), administration of Commonwealth laws and programs
(section 26) and application forms (section 27).
3.7
In relation to discrimination in the provision of goods and services,
section 22 of the SDA provides as follows:
(1) It is unlawful
for a person who, whether for payment or not, provides goods or services,
or makes facilities available, to discriminate against another person
on the ground of the other person's sex, marital status, pregnancy or
potential pregnancy:(a) by refusing
to provide the other person with those goods or services or to make
those facilities available to the other person;(b) in the terms
or conditions on which the first-mentioned person provides the other
person with those goods or services or makes those facilities available
to the other person; or(c) in the manner
in which the first-mentioned person provides the other person with
those goods or services or makes those facilities available to the
other person.(2) This section
binds the Crown in right of a State.
4. MARITAL STATUS DISCRIMINATION
UNDER THE SDA
4.1
The ground of discrimination on the basis of marital status has been in
the SDA since it was enacted in 1984.
4.2
In her Second Reading Speech on the introduction of the Sex Discrimination
Bill, Senator Ryan said as follows:
The need for such
a law is now widely understood and accepted. Throughout Australia women
experience discrimination on the basis of their sex and marital status
... New South Wales, Victoria and South Australia all have laws prohibiting
discrimination on the ground of sex or marital status and the present
Bill closely follows the substantive provisions of the State legislation.
These Acts have clearly succeeded in establishing individual rights
and remedies which are now readily understood within the community
... (Senator
Ryan, Hansard (Senate), 2 June 1983, at 1185)
4.3 As noted by Senator
Ryan, the form and structure of the SDA followed anti discrimination legislation
that then existed in Australia. The Anti Discrimination Act 1977 (NSW)
("the ADA") provided a primary model, as did the Sex Discrimination Act
1975 (UK) which provided some coverage of "marital status" and the Sex
Discrimination Act 1975 (SA).
4.4
Before the SDA, women who were not able to use existing state anti discrimination
legislation were subject to discrimination on the basis of their marital
status. It appears that discrimination was prevalent in two main areas.
The first was employment, where women in some industries or occupations
were subject to dismissal upon marriage. An example of discrimination
in employment on the grounds of marital status was the "marriage bar"
whereby married women were denied the right to permanent employment in
the Australian public service. The marriage bar was only lifted about
30 years ago. Its operation is described in Spicer v Commissioner for
Superannuation and Commonwealth Superannuation Scheme Board and Department
of Finance, H97/49, Commissioner Graycar, HREOC, 28 August 1997.
4.5
The second area was goods and services, where unmarried women were
discriminated against in respect of the provision of certain, primarily
financial or credit, services. For example, in many instances single women
without a male guarantor were refused access to finance or to credit.
A further example of discrimination on the grounds of marital status in
a related area was the denial to Gai Waterhouse of a trainer's licence
based on the identity of her husband, a complaint which was lodged with
the NSW Anti Discrimination Board (see Waterhouse v Bell (1991) EOC 92-376).
4.6
Since 1984, there have been a number of cases dealing with "marital status"
under the SDA. It is important to note that both men and women have used
the marital status provisions. For example, in the Dopking litigation
(see, in the Federal Court, Commonwealth v HREOC (Dopking No 1) (1993)
46 FCR 191 and Commonwealth v HREOC (Dopking No 2) (1995) 63 FCR 74),
a male member of the armed forces complained to the Commission that he
had been discriminated against on the basis of his single status in not
being provided with a housing benefits which were provided to married
couples (see also Dooley v Australian Airlines Limited, H93/108, 1 August
1994, Sir Ronald Wilson).
4.7
Cases under the SDA have dealt with discrimination on the grounds of marital
status in employment and superannuation (for example Dopking and Spicer);
in goods and services (for example Schofield v Department of Community
Services and Health, HREOC, Sir Ronald Wilson, 15 October 1990 and W v
D and Royal Women's Hospital, H97/221, HREOC, Commissioner Johnston, 24
December 1999); in clubs (for example Ciemocioch v Echuca-Moama RSL and
Citizens Club, H93/029, HREOC, Commissioner O'Connor, 13 July 1994); and
in Commonwealth laws and programs (Ramani v Department of Immigration,
H92/48, HREOC, Sir Ronald Wilson, 20 January 1995).
4.8
From 1984 to 2000 (when the Commission's hearing function was transferred
to the Federal Court pursuant to the Human Rights Legislation Amendment
Act (No 1) 1999 (Cth)) there were approximately 22 cases which proceeded
to a final determination before the Commission which dealt with discrimination
on the grounds of marital status under the SDA.
4.9
This number of cases does not reflect the number of complaints made on
this ground as only a very small proportion of cases actually proceeded
to hearing and determination. In 1999-2000, for example, 16% of complaints
under the SDA were referred for hearing, the remainder being conciliated
or declined/terminated. Of those referred, 35% of those finalised in the
1999-2000 financial year proceeded to final determination, the remainder
settling or being withdrawn (Annual Report, 1999-2000).
4.10
Despite societal changes, the Commission's Annual Reports indicate that
dozens of complaints on the basis of marital status are still received
each year. The Commission's most recent Annual Report indicates that 5%
of complaints received under the SDA are complaints concerning marital
status.
4.11
It is also important
to recognise that the number of complaints made to the Commission do not
comprehensively reflect the level of discrimination and community concern
around issues concerning marital status. This is because people also make
complaints to State and Territory agencies under the relevant State/Territory
legislation.
4.12
The Commission
has considered two cases specifically dealing with marital status discrimination
in respect of the provision of assisted reproductive technology services
("ART services"). These cases are MW, DD, TA and AB v Royal Women's Hospital,
Freemason's Hospital and the State of Victoria, HREOC, Commissioner Kohl,
5 March 1997 and W v D and Royal Women's Hospital, HREOC, Commissioner
Johnston, 24 December 1999. In both cases the complaints were sustained
and damages were awarded.
4.13
MW was an inquiry into four complaints of discrimination on the grounds
of marital status. The complainants alleged that they were treated less
favourably than married persons when they were denied in vitro fertilisation
services because they were not married. One couple was actually in the
process of undertaking preparatory tests for the IVF program when advised
that the IVF services were not available to them. The complaints arose
in Victoria which then regulated the provision of IVF services through
the Infertility (Medical Procedures Act) 1984 (Vic). This legislation
required women to be married before IVF services could be provided. The
complainants were all in de facto relationships. The respondent hospitals
acknowledged that the complainants were denied services because they were
not married but considered that they were bound by the Victorian legislation.
The Hearing Commissioner found that there had been unlawful discrimination
under section 22 of the SDA and awarded damages to each complainant.
4.14
In the W v D case, a single woman sought access to donor insemination
services in Victoria but was told when she telephoned the hospital to
inquire, that this service could not be provided to her as she was not
married. The Hearing Commissioner found that the complainant had been
unlawfully discriminated against contrary to section 22 of the SDA and
awarded damages in compensation.
5. BACKGROUND TO THE AMENDMENT
BILL
5.1
Some States and Territories have or have had legislation restricting access
to ART to women in various categories or relationships. For example, as
noted above, the Infertility (Medical Procedures) Act 1984 (Vic) at one
stage restricted ART access to women who were married. The later Infertility
Treatment Act 1995 (Vic) removed the restriction on access to women in
de facto relationships. Other States, such as New South Wales, do not
have restrictions of this nature.
5.2
Apart from complaints to the Commission concerning the refusal of ART
services, there have been two court challenges to the validity of provisions
in State legislation concerning access to ART services. Both cases concerned
the interaction of the SDA with the relevant State provisions and the
operation of section 109 of the Constitution.
5.3
Section 109 of the Constitution provides that "when a law of a State is
inconsistent with a law of the Commonwealth, the latter shall prevail,
and the former shall, to the extent of the inconsistency, be invalid".
5.4
The first of these cases was Pearce v South Australian Health Commission
(1996) 66 SASR 486, a decision of the Full Court of the Supreme Court
of South Australia. In that case, a declaration was sought that the Reproductive
Technology Act 1988 (SA), which restricted access to ART treatment to
married women or de factos who had cohabited for a prescribed period of
time, was invalid by reason of inconsistency with section 22 of the SDA.
The applicant was a woman who had sought access to an IVF program. The
Full Court held that there was a "direct conflict" between the Commonwealth
and South Australian legislation as it was not possible simultaneously
to obey the dictates of each law and made a declaration that section 13
of the South Australian Act was invalid by virtue of the operation of
section 109 of the Constitution.
5.5
The second case was McBain v State of Victoria [2000] FCA 1009, (2000)
EOC 93-102 which was decided by the Federal Court in July 2000. The case
concerned the Infertility Treatment Act 1995 (Vic) which restricted access
to ART procedures to women who were married and living with their husbands
on a bona fide domestic basis and women who lived with a man in a de facto
relationship. The applicant in that case sought a declaration that section
8 of the Victorian Act was invalid by reason of inconsistency with section
22 of the SDA. His Honour Sundberg J found that it was not possible simultaneously
to obey section 8 of the Victorian Act and section 22 of the SDA and that
the provisions were thereby directly inconsistent. Consequently, section
8 was inoperative to the extent of that inconsistency, as were other sections
in the Victorian Act which required a woman to have a "husband" (as defined).
His Honour noted that this conclusion was the same as that reached by
the South Australian Supreme Court in Pearce.
5.6
It is the Commission's view that both cases were correctly decided and
that, under section 109 of the Constitution, the provisions of the State
legislation in issue in these cases were invalid by reason of inconsistency
with the SDA. By analogy, provisions restricting access to ART in other
pieces of State or Territory legislation, either currently existing or
that may be enacted in the future, would be likely to be similarly invalid.
5.7
It is noted that the Minister in his Second Reading Speech said that the
Amendment Bill "remedies a problem with the operation of the [SDA] identified
by the Federal Court in its decision in McBain v The State of Victoria"
(Second Reading Speech, 17 August 2000).
5.8
The Commission is of the view that no "problem" with the SDA was "identified"
by the Federal Court. The Court simply applied the Constitution which
required that a provision in a State Act which is directly inconsistent
with a provision in a Commonwealth statute be rendered inoperative to
the extent of the inconsistency. Further, the scope of the operation of
the SDA in this respect had been confirmed by the Full Court of the Supreme
Court of a State since the Pearce decision in 1996.
5.9
If a State law is inconsistent with a Federal law by reason of section
109 of the Constitution, this would not ordinarily result in an amendment
to the Federal law as is now being proposed. This is because the result
arises from the nature of federalism and not from a "problem" with the
Federal law. In any federal system laws will potentially conflict, and
the nature of our federal system, embodied in this instance in section
109, means that, on occasion, State laws will be rendered inoperative.
5.10
The consequence of the Pearce and McBain decisions is to confirm that
sections 22 and 6 of the SDA provide an important guarantee of non discrimination
for persons who are or who may be denied access to ART services under
State or Territory legislation. They confirm the role of the SDA in providing
consistent Federal guarantees of rights to Australian men and women, regardless
of where in Australia they reside.
6. THE PROVISIONS OF THE AMENDMENT
BILL
6.1
The Explanatory Memorandum to the Amendment Bill says that the Bill amends
the SDA to enable States and Territories to legislate to restrict access
to ART services on the basis of a person's marital status. It says that
the Bill "will ensure that State and Territory legislation imposing, requiring
or permitting restrictions on access to ART services on the basis of marital
status, is not inconsistent with section 22 of the Sex Discrimination
Act. This will prevent State and Territory legislation being rendered
inoperative on account of inconsistency with Commonwealth law."
6.2
The Amendment Bill seeks to achieve this end by inserting a new subsection
into section 22 of the SDA. This proposed subsection provides that:
(1A) Nothing in
this section makes it unlawful to refuse a person access to, or to restrict
a persons access to, assisted reproductive technology services if that
refusal or restriction is on the ground of a person's marital status
and is imposed, required or permitted by or under a law of a State or
Territory (whether made before or after the commencement of this subsection).(1B) If:
(a) an anti discrimination
law of a State or Territory expressly states that a range of assisted
reproductive technology services (which may be some or all of those
services) is not covered by that law; and(b) no other
law of the State or Territory prohibits a persons access to a service
within that range being restricted on the ground of the persons marital
status that anti discrimination law is taken, for the purposes of
subsection (1A) to permit the refusal or restriction of the service
to the person on that ground.(1C) Except as
provided in subsection (1B), a law of a State or Territory is not to
be taken to permit a refusal or restriction of access to an assisted
reproductive technology service merely because it does not cover that
service.
6.3
"Assisted reproductive technology services" are defined for the purposes
of proposed section 22(1A) to (1C) as:
(a) services provided
in the course of, or for the purpose of, any of the following(i) in vitro
fertilisation;(ii) artificial
insemination;(iii) gamete,
zygote or embryo transfer; or(b) any other services
provided for the purpose of assisting in non-coital fertilisation.
6.4
The effect of sections 22(1A) and 22(1B) taken together, is that the SDA
will not provide a guarantee of non discrimination where discriminatory
State/Territory ART legislation exists and where State/Territory anti
discrimination legislation contains express exemptions for ART services.
7. CONCERNS WITH THE AMENDMENT
BILL
The Amendment Bill undermines
an important part of the SDA
7.1
For 16 years, the SDA has been a key foundation of federal human rights
standards for the men and women of Australia. The SDA seeks to achieve
substantive equality between men and women by rendering unlawful discrimination
on the grounds of sex, pregnancy, potential pregnancy, marital status
and family responsibilities. The marital status provisions have always
been an integral part of the SDA and contribute significantly to achieving
the overall objective of the legislation.
7.2
The marital status provisions have, since 1984, been of importance
to Australians. They have been used by men and women to formalise discrimination
complaints to the Commission. They have also played an important educative
and benchmarking role.
7.3
Since 1984 there has been considerable cultural change in relation to
marital status discrimination. While married women still experience discrimination,
they are no longer subject to the level of discrimination in employment
they once experienced. There has been much progress in respect of an equal
provision of financial services to women without male guarantors. The
SDA has been at the vanguard of this change.
7.4
The Amendment
Bill compromises the goal of substantive equality by undermining a core
aspect of the legislation.
The Amendment Bill undermines
the universally recognised international human right to non discrimination
7.5
The SDA is the core piece of federal legislation enacting the international
obligation of non discrimination which Australia assumed on ratification
of CEDAW. The main aim of CEDAW is to bring about equality between men
and women. Freedom from sex discrimination in all its aspects, including
marital status discrimination, is a universally recognised human right.
7.6
The SDA is based upon and annexes CEDAW. In eroding its guarantees, the
Amendment Bill erodes basic international guarantees of non discrimination
that have been legislated at a federal level since 1984. Creating exceptions
to basic guarantees undermines public confidence in the system of human
rights protection provided by the Commonwealth and in relation to which
the Commonwealth has assumed international obligations.
7.7
In circumstances where the Government has declined to sign the Optional
Protocol to CEDAW on the basis that guarantees in our domestic law are
sufficiently strong, we should be extremely cautious of any measures that
would dilute or diminish these domestic protections.
The Amendment Bill is extremely
broad in scope and will affect a large number of Australians
7.8
The Amendment Bill will affect both men and women. It will also potentially
affect both women without male partners and women living in de facto relationships.
7.9
The Minister pointed out in his Second Reading Speech (17 August 2000)
that on the commencement of the Bill "any provisions of the Victorian
or South Australian Acts that were previously ruled inconsistent with
the [SDA] will revive. The amendment will also ensure the validity of
the existing Western Australian legislation". He further noted that "the
government is acting to ensure that States and Territories have the power
to enact legislation to limit the availability of assisted reproductive
technologies to married women and those living in a de facto relationship
with a partner".
7.10
The Commission
notes that the Amendment Bill has more far reaching implications as it
appears to allow for the refusal of ART services to people in de facto
relationships. This is because proposed section 22(1A) provides that nothing
in section 22 makes it unlawful to refuse (etc) a person access to ART
if that refusal is on the ground of a person's marital status. "Marital
status" remains as defined in section 4(1) of the SDA and includes the
"status of being .. the de facto spouse of another person".
7.11
Thus, for example, should the Victorian government wish to re-enact legislation
of the type embodied in the Infertility (Medical Procedures) Act 1984
(Vic) which denied access to ART to all but married women, it would be
unconstrainedby the SDA in doing so. Further, should any other State wish
to enact new legislation restricting ART access to married women only,
it would be similarly unconstrained.
7.12
A considerable number of Australian women and men have the responsibility
for raising children in families other than those comprised of a married
couple. More specifically, many single and lesbian women and women in
de facto relationships have the responsibility for children. Such families
are an increasingly common phenomenon in Australia. Generally, Australian
legislation respects and recognises that men and women have strong personal
beliefs and the right to determine how they wish to define their lives
both with and without partners. For example, laws at both federal and
state levels respect the right of individuals to choose to marry or to
live together in a de facto or same sex relationship.
7.13
In the MW case, which concerned legislation that permitted access to ART
to married women only, there was evidence given that two of the complainants
were forced to marry in order to access treatment. One woman said that
she and her partner had married solely to access treatment and against
both of their firmly held beliefs. As Commissioner Kohl pointed out in
that case "there are members of our society who view the institution of
marriage as sacred. There are others who view it as an anachronism. The
complainants in this case were all of the view that marriage is an anachronistic
institution which discriminated against women and that they never wished
to formally marry".
7.14
The Commission does not endorse either view of the institution of marriage.
However, the important point made by Commissioner Kohl is that men and
women should have a right to choose, based on their own beliefs and consciences,
the types of relationships in which they live. The Commission opposes
a situation in which people are forced to live in ways that go against
their consciences and beliefs in order to access medical services to which
everyone in a democratic society should be entitled.
7.15
Further, it is critical to note that the Amendment Bill will impact on
all Australians, both men and women. In the MW case described above, one
complaint was brought by the male member of a de facto couple. It is not
difficult to see how the refusal of access to ART to a female de facto
partner can have a substantial detrimental impact on a male partner as
well.
7.16
Subsequent to the introduction of the Amendment Bill, the Attorney-General
commented that the Government would propose an amendment to the legislation
to ensure that women living in de facto relationships could access ART
services should a State or Territory seek to restrict such access (Attorney-General
News Release 18 August 2000). The Commission recognises that the introduction
of any such changes would narrow the potential breadth of the legislation.
Without seeing the drafting of the proposed changes the Commission is
unable specifically to comment on them. However, even with such changes,
the Commission opposes the entirety of the Bill for the other reasons
set out in this submission.
The Amendment Bill will
have a negative impact on women
7.17
The Amendment Bill allows differential treatment between women. The potential
is that the Amendment Bill will allow women who choose to live in some types
of relationships access to ART services but will deny access to women in
other types of relationships. Australian women rely on the broad and consistent
application of human rights and anti-discrimination principles for a sense
of their status as equal citizens. Eroding one aspect of women's human rights
while protecting others undermines the strength of human rights as a system.
7.18
The Amendment Bill will not prevent fertile single and lesbian women from
becoming pregnant. It will simply deny them the opportunity to utilise
safe reproductive technologies. It will encourage instead the use of less
reliable or safe methods of reproduction. This will have a detrimental
impact on the health of women and children.
7.19
Without non discriminatory access to safe ART services, the ability of
women to reproduce is subject to regulation on the basis of the type of
relationship in which they are engaged and with whom. This is discriminatory
and impacts negatively on women.
7.20
Although the marital status provisions in the SDA are used by both men
and women, women have been the primary beneficiaries of the legislation
because the provisions address social conditions of discrimination to
which women were and are primarily subject.
The Amendment Bill will
deprive women of a remedy in circumstances in which discrimination still
occurs. The SDA is consistent with the rights of children
7.21
The Commission strongly supports the principles and provisions of the
Convention on the Rights of the Child ("CROC"). This Convention is a declared
instrument under the HREOCA, a piece of legislation which the Commission
administers.
7.22
A central plank of CROC is that the best interests of the child shall
be a primary consideration in all actions concerning children (article
3).
7.23
The Commission has always supported and encouraged an interpretation of
administrative action and legislation which promotes the best interests
of the child; for example, the Commission intervened in Minister of Immigration
and Ethnic Affairs v Teoh (1995) 183 CLR 273 to support a construction
which advanced and promoted those interests.
7.24
The Commission recognises that CROC and other international instruments
place the family as the "fundamental unit of society" and endorses the
rights of a child to the "full and harmonious development of his or her
personality" and to "grow up in a family environment, in an atmosphere
of happiness, love and understanding" (Preamble to CROC).
7.25
The Commission also recognises and endorses the broad notion of "family"
encompassed in CROC (for example, articles 5, 18, 19 and 27). For example,
CROC refers to "members of the extended family ... legal guardians or
other persons legally responsible for the child" (article 5) and "parents
or others responsible for the child" (article 27).
7.26 It is
the Commission's view that the availability of ART services protects children
and their parents in that the regulatory structures provide an environment
in which parental obligations can be identified. For example, under a
donor insemination procedure, legislation generally allows children to
have access to information about their biological parents. It may also
identify those persons who have obligations and responsibilities towards
the child.
7.27
The availability for women to access safe medical services and the ability
for a child to access information about his or her biological parents
and genetic makeup are of benefit to children. It is also noted that CROC
recognises the right of a child to an identity (article 8).
The Amendment Bill will
lead to inconsistency across Australia
7.28
Federal guarantees of human rights provide a benchmark for all Australians.
The SDA applies throughout Australia (section 9(2)).
7.29
These Federal standards implement Australia's international human rights
obligations. Under CEDAW, the Commonwealth is required to implement these
international principles of non discrimination across Australia. Further,
the implementation of these standards in the SDA demonstrates Commonwealth
Government leadership in human rights protection.
7.30
The need
for consistency across Australia in matters of such importance cannot
be understated. In undermining these federal human rights guarantees,
the Amendment Bill will place Australians in different States and Territories
in varying positions with respect to the protection of their rights. This
inconsistency is highly undesirable and makes rights - which are fundamental
- dependent on where in Australia a person happens to reside.
8. SUMMARY
8.1
In summary,
the Commission is concerned that the proposed Amendment Bill:
- undermines core
domestic and international human rights guarantees
- introduces uncertainty
into the scope of human rights guarantees
- introduces inconsistency
of operation for women in different States and Territories
- has a negative
impact on women
- intrudes into
the decisions of individuals and families about reproduction
- fails to reflect
the diverse range of family situations in which Australians currently
choose to live.
9. RECOMMENDATION
The Commission recommends
that the Amendment Bill be rejected in its entirety.
Last
updated 13 September 2002.