A friend of mine at Law School had a Fiat. It was one of those tiny Fiat Bambinos which she said she could park anywhere. Indeed she was known to park it nose to the kerb squeezing between two cars in a parallel-parking street and climb out the sun roof.
Fiat also has another meaning. It is an authority given by the Attorney-General into a person or organisation to engage in court proceedings that they otherwise might be excluded because they had no standing in the eyes of the court.
This week, the Federal Attorney-General, Daryl Williams, granted a fiat to the Australian Episcopal Conference of the Roman Catholic Church to give the bishops standing to challenge a Federal Court decision over in-vitro fertilisation. Some might say it was just like my friend’s Fiat — poking its nose into places where it had no business to go. Others might argue that if you have to get out of a tight spot a Fiat can be very handy.
The granting of the fiat by Williams has given the church a special place which has not been granted to other bodies who hold a contrary view.
At stake is a Victorian law which prohibits the provision of medical reproductive technology to women who are not married or not living in a de-facto relationship. In August 1999, Leesa Meldrum consulted gynaecologist Dr John McBain seeking reproductive technology under which an ovum would be removed from her and fertilised with donor sperm in-vitro (in glass in the laboratory) with the resulting embryo being transferred into Meldrum’s womb.
This put Dr McBain in a quandary. On one hand, if he granted her request he would be in breach of the Victorian Medical Practice Act 1994. This prohibits a fertilisation procedure being performed on a woman unless she is married or has a de-facto husband. On the other hand, if Dr McBain refused to provide the service to Meldrum he would be in breach of the Commonwealth Sex Discrimination Act 1984. That Act makes it unlawful for a person who provides services “to discriminate against another person on the ground of the other person’s sex, marital status, pregnancy or potential pregnancy.”
In short, Dr McBain was damned if he did and damned if he did not. He sought a declaration from the Federal Court as to what the law would permit him to do.
As a general constitutional principle, where a state and Commonwealth Act are inconsistent, the Commonwealth Act will prevail. On July 28, last year, Justice Ross Sundberg ruled that it would be discriminatory under the Commonwealth Act to deny the treatment and he declared the Victorian law invalid.
There were some unsatisfactory elements about the hearing. In our adversary system of law, the normal pattern is to have two sides arguing and for the judge to rule for one side or the other. The system has a lot of drawbacks, but if you’re going to move away from it you have to do it across-the-board, not in just an isolated case. The normal pattern is that when a state or federal Act is under threat from being declared invalid the state or federal Attorney-General steps in to defend their Act. This pattern has applied since federation. It means that the courts get the advantage of having all the issues fully argued and every proposition tested. Unfortunately, that did not happen in this case.
The Victorian Act was passed in the period of the Kennett Liberal Government. When it came time to argue the case, the Government in Victoria had changed. The new Bracks Labor Government did it not share the Kennett Government’s view on single women. But it did not have the political will to change the Act because it would have stirred up dissension in the Labor Party which has a high proportion of Catholics on the social right. Moreover, the new Government probably did not have the numbers in the Upper House and had other legislative priorities. So when the case came to court the Victorian Government ran dead on it. The State of Victoria and the Minister for Health for the State of Victoria were both parties to the action brought by Dr McBain. But they submitted a formal “neutral” position on the question of the consistency of the two Acts.
The Catholic Church was given permission to put up submissions, but only as a friend of the court, not as a formal party. It meant that after judgment in favour of single women and the Commonwealth Act, there was no party to lodge and appeal. Dr McBain was free to go ahead with the treatment. The Victorian government, whose legislation had been struck down, did it not have the inclination to appeal for the same reason that it did not argue the case in the first place.
The appeal period ran out.
The Federal Government announced that it would introduce amendments to the federal Sex Discrimination Act allowing for exemptions when it comes to fertility treatment. It was a good move politically because the Coalition knew that Labour had several conservative Catholic MPs whose conscience would demand a vote for the Coalition legislation. However, the legislation faced a difficult task in Senate, as both parties put politics above conscience and are insisting on a party-line vote.
The Catholic bishops feared that the Commonwealth amendments would not get through. As explained, they could not appeal against the decision. Instead, they launched an action that permits any affected party in Australia to seek an order by the High Court to force any federal officer, including a Federal Court judge, to make him or her to do his or her duty (a writ of mandamus) or to stop him or her from acting in an unlawful way (a writ of prohibition).
It is obvious that Catholic bishops are not the sort of people to be directly affected by court rulings on fertility treatment. The court could easily say this is none of your business; go away. Indeed, Justice Bill Gummow strongly hinted at this possibility when the issue first came up at a preliminary directions hearing. He said, “Well, just listened to me a for a minute. It is an not a question of people taking attitudes and stating positions. They are either … apply to be an intervener, they are an intervener as of right or on application, or they are a party. That is it. That is how the matter runs.”
He was expressing a long-held view by the courts that they do not entertain hypothetical arguments and free-for-alls. Rather, they are only interested in resolving matters of actual dispute between real parties who have a real issue.
In the McBain-Meldrum case the issue was whether it was lawful for the doctor to provide treatment or unlawful for him to refuse it in a particular case involving a particular woman. The courts are reluctant to engage in a free-for-all arguments where busy bodies come and try to interfere in other people’s disputes.
Williams was quite right in his assessment that there was a real possibility that the High Court would tell the Catholic bishops to mind their own business. Thus he gave them his fiat which gives them standing to intervene in the action as of right, even if they have no immediate practical interest in the outcome.
And it is here that the real issue of separation of powers lies. Some people are concerned about the separation of church and state, but it that is not a real issue. The Catholic bishops these days are a pressure group just like the Women’s Electoral Lobby, another body that wants a say in this case. It is not as if the Catholic bishops wish to have temporal power as they did before the Reformation.
Rather, this case raises questions about the separation of the legislature and the judiciary. Once you permit the judiciary to entertain a rag-tag of groups putting hypothetical arguments with no real practical interest in the outcome in that particular case, but rather pushing a view that they wish to be applied universally, it gives the judiciary and unwarranted legislative function. That function should be exercised by the democratically elected the legislature or which is responsible to the electorate.
There is also a question of separation of the executive and legislature. The executive should not take a partisan stand as to which legislation it will or will not support in the courts. Once legislation has been passed the executive at the state or federal level should send its Attorney-General in to defend at the legislation against attacks on its validity by either an individual or another level of government. Not to do so encroaches on the legislative function by attempting to repeal the legislation by the back door by acquiescing in a court declaration of invalidity. If the Victorian Government had defending the Victorian legislation in the first place, there would have been a real contest and no case for later intervention by the bishops.
At least Williams to date has not fallen into the Victorian trap. Even though his government is moving to change the Sex Discrimination Act, he is defending the validity of its existing provisions by not granting the bishops a Fiat to argue that they are invalid.
The real test will come whether he enters the fray himself as a party to argue in favour of validity of the Commonwealth law even though his Government is seeking to amend it – that is what a good Attorney-General would do. To do otherwise is to give the executive the mantle of legislature. It invites argument that the legislation was not properly tested in the courts and should be tested by a rag-tail of busy-bodies like the Catholic bishops and the Women’s Electoral Lobby.