The High Court ruled yesterday that did not have to rule on whether Victoria’s ban on IVF treatment to single women breached the Federal law that prohibits discrimination against single women.
The upshot is that doctors in Victoria can give single women in Victoria this treatment despite a Victorian law banning it because a Federal Court judge ruled the Victorian law invalid because it was inconsistent with the federal anti-discrimination law and the High Court refused to entertain appeal arguments against this ruling because none of the original parties wanted to pursue an appeal.
The case started when Dr John McBain asked the Federal Court to rule that the federal law prevailed and that he could treat single woman Lisa Meldrum despite the Victorian prohibition. He sued the Victorian Government. All other eight Australian Governments were invited to the fray. None did. The Catholic bishops were allowed in as a friend of court but not as a party. Only Victoria was a party and it played dead at the hearing, not arguing in favour of the validity of its law nor conceding it was invalid. The Federal Court found for Dr Bain, ruling the Victorian law invalid. Victoria did not appeal.
The bishops wanted an appeal to the Full Federal Court or the High Court, but were not an original party to the action. So the Commonwealth Attorney-General Daryl Williams gave them permission (a fiat) to sue the Federal Court judge in the High Court for creating an error of law in his decision, seeking an order that the Federal Court’s order be quashed.
Four judges of the High Court (Chief Justice Murray Gleeson and Justices Mary Gaudron, Bill Gummow and Kenneth Hayne) ruled that third parties, like the Catholic bishops, cannot stick their nose into other people’s litigation. They ruled that the High Court can only make a judgment on “”matters” — that is genuine disputes between parties that affect those parties’ rights, duties and liabilities. They said the Catholic bishops did not have a direct interest, right or liability.
Chief Justice Gleeson likened it to a tax case. If a taxpayer refused to appeal against a lower court ruling in favour of the Tax Office, other taxpayers could not take up that appeal even though they might be offended by the precedent value of the ruling.
Courts would only rule in disputes between litigants, and would not make hypothetical rulings on the calling of third parties.
The other three judges (Michael McHugh, Michael Kirby and Ian Callinan) ruled that the High Court’s original jurisdiction set down in the Constitution over officers of the Commonwealth would apply to Federal Court judges in instances like this, but it was a discretionary remedy. As the Commonwealth and Victoria had had their chance at first instance and because the Catholic bishops did not have any direct interest or right at stake, the discretion should not be exercised for an intervention.