Both major parties are struggling with the fall-out from the recent High Court decision that leaves the way open for single women to have access to fertility treatment.
In the case, a Victorian doctor, John Bain, was presented with the dilemma of a federal law and a state law apparently contradicting each other. If he provided the fertility treatment to a single woman he might be in breach of a Victorian law banning such treatment, but if he did not give her treatment might be in breach of the federal Sex Discrimination Act which prohibits discriminating against people according to marital status.
Dr Bain took the Victorian Government to the Federal Court, but that Government was not active in defending its legislation, so the court ruled that the Sex Discrimination Act overrode the Victorian Act and Dr Bain could proceed with fertility treatment on a single woman. The Federal Attorney-General, Daryl Williams, gave the Catholic Bishops Conference permission in the form of a fiat to take the matter to the High Court to argue the case fully, but the High Court refused to upset the lower judgment because none of the parties to that finding had appealed and it ruled that it did not have the jurisdiction to rule in what would amount to a hypothetical case based on the action of a third party with no right, duty or liability at stake.
Prime Minister John Howard is now moving to amend the Sex Discrimination Act to permit the states to legislate how they see fit on who should have access to fertility treatment. He has ruled there will be no conscience vote on the matter.
The Opposition, too, has decided not to allow a conscience vote on the issue. It will attempt to block the Government’s legislation in the Senate with the help of the Democrats and the Greens and has called for a national approach – but a national approach might result in single women being denied treatment – a result many in the Labor party would not like.
The issue has been painted at the federal level as a vote on whether single women should or should not have access to fertility treatment. Not so. There is no proposal before the federal Parliament to ban access. Rather it is a question about the breadth of the Sex Discrimination Act. The question is, Should that federal Act prevent state Parliaments from regulating the provision of medical services? That being the case there is less reason for a conscience vote. It also reveals the futility of the Government’s proposed changes to the Act.
Even if Mr Howard gets his way, there would be nothing to stop a state from permitting single women access to the treatment, and the indications from Victoria indicate that there is little political will in the states to impose the ban. It would only take one state to allow treatment to make bans by the others ineffective.