Realising universal rights in national jurisdictions

• Pages: 145-187

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Part III: From Aspirations to Entitlements

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12. Realising universal rights in

national jurisdictions

MCBAIN V. STATE OF VICTORIA AND OTHERS

FEDERAL COURT OF AUSTRALIA, AUSTRALIA1

Sundberg J

28 July 2000

Discrimination

Marital status – Restriction on fertility treatment unjustified

The applicant, a gynaecologist specialising in reproductive technology, sought a dec-

laration that section 8 of the Infertility Treatment Act 19952(Vic)(the State Act) was

inoperative on the grounds that it was inconsistent with section 22 of the Sex Discrimi-

nation Act 1984 (Cth) (SDA).3

In granting the declaration, it was held that:

1. The word ‘services’ should be given a liberal meaning within the meaning of

sections 44 and 22 of the SDA. In this context ‘services’ include fertility treatment

administered by a medical practitioner. Further, given that different treatments are

covered by the same legislative scheme, the State Act, subject to the same eligibility

requirements and capable of being provided to both sexes they are not exempted

by section 32 SDA.5

1. Source: INTERIGHTS, the International Centre for the Legal Protection of Human Rights.

2. Section 8(1) provides that: ‘A woman who undergoes a treatment procedure must – (a) be

married and living with her husband on a genuine domestic basis; or (b) be living with

a man in a de facto relationship’.

3. Section 22 provides inter alia: (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 ...’

4. Section 4(1) provides inter alia that: ‘services includes: (d) services of the kind provided

by the members of any profession or trade.

5. Section 32 provides that: ‘Nothing in division 1 or 2 applies to or in relation to the provision

of services the nature of which is such that they can only be provided to members of

one sex’.

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Part III: From Aspirations to Entitlements

2. Section 8 of the State Act provides that a woman’s marital status, namely her status

as a married woman or living in a de facto relationship, is an essential requirement

for the availability of treatment. In this regard, section 8 treats unmarried women

not living in such a de facto relationship less favourably by refusing them fertility

treatment contrary to section 22 of the SDA, which makes it unlawful for a person

to refuse to provide a service to another on the ground of the latter’s marital status.

As the two sections are directly inconsistent, section 8 is inoperative by reason of

section 109 of the constitution6. Moreover, any provisions in the State Act that are,

in part, dependent upon the operation of section 8 are also inoperative to the same

extent.

3. Nor is section 8 saved by section 7B7 of the SDA on the grounds that to

deny an unmarried woman such treatment amounts to direct and not indirect

discrimination.

FOR THE APPLICANT: A C ARCHIBALD, QC, AND S MOLONEY

FOR THE FIRST AND SECOND RESPONDENTS: P TATE

FOR THE FOURTH RESPONDENT: D F R BEACH

FOR THE AUSTRALIAN CATHOLIC BISHOPS CONFERENCE AND THE AUSTRA-

LIAN EPISCOPAL CONFERENCE OF THE ROMAN CATHOLIC CHURCH AS

AMICUS CURIAE: J G SANTAMARIA, QC

6. Section 109 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 inconsis-

tency, be invalid’.

7. Section 7B provides that: ‘(1) A person does not discriminate against another person by

imposing, or proposing to impose, a condition, requirement or practice that has, or is likely

to have, the disadvantaging effect mentioned in subsection 5(2), 6(2) or 7(2) if the condition,

requirement or practice is reasonable in the circumstances. (2) The matters to be taken into

account in deciding whether a condition, requirement or practice is reasonable in the

circumstances include: (a) the nature and extent of the disadvantage resulting from the

imposition, or proposed imposition, of the condition, requirement or practice; and (b) the

feasibility of overcoming or mitigating the disadvantage; and (c) whether the disadvantage

is proportionate to the result sought by the person who imposes, or proposes to impose,

the condition, requirement or practice’.

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Part III: From Aspirations to Entitlements

WOODALL V. R

COURT OF APPEAL, BARBADOS8

Waterman JA

Williams JA

Connell JA (AG)

17 November 2004, 29 November 2005

Criminal law

Trial – Summing-up – Identification – Alibi – Corroboration – Age – Defendant appealing

conviction for serious indecency with a minor

The defendant was convicted of committing an act of serious indecency, contrary to

Section 12(2) of the Sexual Offences Act, with a 15-year-old boy and was sentenced

to 10 years’ imprisonment. He appealed both his conviction and sentence. The defendant’s

defence had been one of alibi. The principal issue for the court was whether it was

necessary to direct the jury on identification in circumstances where the complainant and

the accused were known to each other and where the defence was one of alibi. The

court addressed three of the grounds of appeal (i) alibi: whether the trial judge’s

directions on alibi were adequate; (ii) identification: whether the trial judge had erred

in law in that his directions on identification were inadequate and confusing and he had

failed to tell the jury that an honest and credible witness could be a mistaken witness

and to warn the jury about the possible unreliability of the identification evidence; and

(iii) warnings on absence of corroboration and age: whether the trial judge had

failed to warn the jury about the possible unreliability of the evidence of the complainant

in view of the absence of corroboration and of his age.

It was held inter alia that:

3. The statutory requirement in the Sexual Offences Act to warn the jury that it might

be unsafe to find the accused guilty in the absence of corroboration compelled the

judge to give a warning where corroboration was absent, even in identity cases.

Further, a warning was appropriate, as every element of the charge had to be

proved, not only the identity of the offender, but also the ingredients of the offence.

For a judge to draw to the jury’s attention his or her statutory obligation, without

more, as in the instant case, did not constitute giving a proper warning to the jury.

The judge, depending on the circumstances, was generally required to go further

and to explain the reasons for the warning and the relevance of the warning to

the particular facts of the case. The warning in the instant case had not complied

with established rules of practice to use clear and simple language that would,

without any doubt, convey to the jury that there was a danger of convicting on

the complainant’s evidence alone. The important consideration was the form of the

8. Source: The West Indian Reports (2005) 72 WIR 84