(b) The proper construction of s 10(1)(a) of the ART Act
87 For the following reasons, I reject the applicant's proposed constructions. First, there is no uncertainty or ambiguity in the term "partner" in the ART Act. As noted above, the term is defined in s 3 and, relevantly, means a person's "spouse". Although that term is not defined in the ART Act, it should be given its ordinary meaning, which is a person who is married to another person (whether living together or not). I accept the submission of amici curiae that the definition of "partner" in s 3 is not stated to be subject to a contrary intention, nor is there a sufficient basis for implying such a qualification in the terms of s 3.
88 Secondly, there are several formidable obstacles which stand in the way of both the applicant's preferred primary construction that the word "partner" in s 10(1)(a) should be construed as requiring the consent of a partner with whom the woman is seeking treatment and not otherwise, and the alternative construction (i.e. the first limb of "partner" should be read as referring to a spouse who was living together with the person seeking assisted reproductive treatment). One is that this involves reading words of qualification or limitation and attracts the observations of the plurality in Taylor which are set out in [82] above. This is not a case of there being a simple or grammatical drafting error which, if left uncorrected, would frustrate the purpose of the provision. Moreover, the proposed limitation sits uncomfortably with the language which has in fact been used in the ART Act. It is notable, for example, that the legislature has specifically turned its mind elsewhere in the ART Act to the question whether any qualification is warranted in respect of the term "partner". For example, in s 29, an express distinction is drawn between a "current or former partner" of a donor (who has produced gametes or an embryo formed from gametes produced by the donor) if the person carrying out a treatment procedure knows that the procedure may result in more than ten women having children who are genetic siblings. In circumstances where the Parliament itself has seen fit to include an express provision in the ART Act which operates in respect of both a current and a former partner, the Court should not itself introduce words of limitation in other provisions, such as s 10(1)(a), in the manner sought by the applicant.
89 A further and related difficulty lies in the fact that the term "partner" is used in different contexts throughout the ART Act, as is reflected in the references which are set out in [62] above. If the applicant's construction of s 10(1)(a) was adopted, to what extent should the same words of qualification or limitation be read into other provisions of the ART Act which also use the term "partner"? The answer to that rhetorical question is not straightforward. Take s 29 again as an example. Should the suggested words of limitation also be read into that provision which refers in its terms to a "current or former partner" of a donor? Presumably not. This simply serves to highlight the undesirability of the Court assuming the role of the legislator in making complex policy choices. All the more so when dealing with a difficult and complex subject matter, such as assisted reproduction treatments, which raises a broad range of moral and other public policy issues. Many of those issues are highlighted in the 2007 report of the Victorian Law Reform Commission (the Commission) which preceded the enactment of the ART Act and to which further reference is made below.
90 Finally, in construing the relevant provisions, it is important to bear in mind their interaction with s 7 of the ART Act which makes it a criminal offence for a person to carry out assisted reproductive treatment otherwise than in accordance with the requirements of that provision (the terms of which are set out in [16] above). This serves to highlight the need for certainty in the operation of the relevant provisions, a consideration which may explain the clarity and lack of any ambiguity in the definition of "partner" and the terms of s 10(1)(a).
91 These difficulties are not overcome by reference to the Charter or the remedial nature of the legislation. Both those considerations must yield to the clear and unambiguous nature of both the language of s 10(1)(a) and the statutory definition of the term "partner" in s 3. It is also relevant to note that while the ART Act undoubtedly encroaches upon human rights and freedoms which are set out in the Charter, the legislation itself reflects the Parliament's choices and judgment as to how competing human rights and freedoms should be balanced. The observations of the High Court in Momcilovic and Tate JA's observations in Taha, upon which the applicant relied, need to be read with this feature of the ART Act in mind. Nothing in those observations permits a Court in construing a provision such as s 10(1)(a) to ignore the clear and unambiguous terms of that provision and to rewrite the provision so as to give effect to the applicant's view of the purpose of the legislation and how the applicant sincerely believes the legislation should operate by reference to her particular circumstances. Nor, in my respectful view, does the Statement of Compatibility in respect of the 2008 Bill have any significance to the task of statutory construction in this proceeding. Contrary to the applicant's submission, I attach no significance to the fact that the Statement of Compatibility is silent on the issue of discrimination based on marital status.
92 I do not suggest, of course, that it is inappropriate to adopt a purposive construction of s 10(1)(a). As the plurality noted in SZTAL (see at [79] above), considerations of text, context and purpose are at the forefront of the task of statutory construction (and see also s 35(a) of the Interpretation of Legislation Act 1984 (Vic)). The core difficulty for the applicant is that the relevant text of the ART Act is clear and unambiguous. Moreover, the applicant did not draw the Court's attention to any significant feature of the historical context to the enactment of the ART Act which supported her preferred construction. Indeed, as the following brief survey reveals, the historical context appears to be neutral on the central issue of construction in the proceeding.
93 As part of that historical context, it is relevant to consider and contrast the existing relevant provisions of the ART Act with the counterpart provisions in the previous legislation before its repeal.
94 Division 2 of Pt 2 (i.e. ss 8 to 11) of the Infertility Treatment Act 1995 (Vic) (IFT Act), which is the predecessor legislation to the ART Act, contained general requirements for treatment procedures (which were defined in s 3 as including "a fertilization procedure", which was further defined so as to include the medical procedure known as IVF). Section 8(1) prevented a woman from undergoing a treatment procedure unless she was either married and living with her husband on a genuine domestic basis or was living with a man in a de facto relationship. Sub-section 8(2) of the IFT Act required consent from the woman and her husband before the woman underwent a treatment procedure. Sections 8(1) and (2) were in the following terms:
8. Persons who may undergo treatment procedures
(1) 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.
(2) Before a woman undergoes a treatment procedure she and her husband must consent to the carrying out of the kind of procedure to be carried out.
…
95 Under s 3 of the IFT Act, "husband" and "de facto relationship" were defined as follows:
husband, in relation to a woman who is living with a man in a de facto relationship, means the man with whom she is living in that de facto relationship;
de facto relationship means the relationship of a man and a woman who are living together as husband and wife on a genuine domestic basis, although not married;
96 The term "husband" was not defined other than in respect of a man who was in a de facto relationship with a woman. Presumably, the term otherwise had its ordinary meaning.
97 In 2002, the then Attorney-General asked the Commission to conduct an inquiry and report on the laws that govern the use of assisted reproduction in Victoria and in particular the desirability and feasibility of expanding the eligibility criteria for access to assisted reproduction and adoption. In a final report dated March 2007 and titled "Assisted Reproductive Technology & Adoption" (which was tabled in the Victorian Parliament on 7 June 2007), the Commission recommended that the requirements in the IFT Act that a woman who undergoes an assisted reproduction treatment procedure be "married and living with her husband on a genuine domestic basis" or "living with a man in a de facto relationship" should be removed (Recommendation 26). The Commission also recommended that the legislation be amended to recognise "that some people to whom the Act applies will be married or in heterosexual de facto relationships, some will be in same-sex relationships and others will not have partners (Recommendation 27).
98 The Commission recommended that people seeking to undergo assisted reproductive procedures must not be discriminated against on the basis of their sexual orientation, marital status, race or religion (Recommendation 1, emphasis added).
99 The Commission noted at page 58 of its report that it recommended that the requirements for consent, counselling and provision of information should remain.
100 The Commission considered the implications of decisions such as McBain and two decisions of the Supreme Court of Victoria and the Victorian Civil and Administrative Tribunal respectively in AB v Attorney-General (Vic) (2005) 12 VR 485 per Hargrave J and YZ v Infertility Treatment Authority [2005] VCAT 2655 per Morris P. The Commission noted at p 67 that it recommended that the legislation be amended to make it clear that women requiring assistance to become pregnant should not be excluded on the grounds that they have no partner or have a partner of the same sex, and that this would bring Victorian law into line with interstate legislation. The Commission further commented at p 67 that removal of the marital status requirement would require that consequential amendments be made to recognise that a woman undergoing treatment may have a partner of the same sex or may be single.
101 The Commission did not directly address the issue which arises for determination in this proceeding. Nor did the parties suggest that there is anything of direct relevance in the Second Reading Speech to the Assisted Reproductive Treatment Bill 2008 (Vic), apart from the applicant's contention that it contained a statement that the paramount consideration of the legislation is the welfare and interests of the child, which is of limited significance in resolving the issue of statutory construction here.
102 The applicant did rely on certain extracts from the Second Reading Speech which introduced amendments to the SOC Act in relation to women in same-sex relationships who undergo a treatment procedure. In particular, she drew attention to the statement therein that a woman in a same-sex relationship who gives birth will be presumed to be the mother of the child born as a result of the pregnancy and that her female partner will be presumed to be a legal parent of any child born as a result of the pregnancy if she and the woman who gave birth were living together as a couple on a genuine domestic basis when the woman underwent the procedure as a result of which she became pregnant. The extract from this Second Reading Speech also included the following statements:
She must have consented to the procedure as a result of which her partner became pregnant. The consent of the woman's partner is presumed but rebuttable.
103 The applicant submitted that similar language should be imported in the construction of the word "partner" in s 10(1)(a) of the ART Act. I reject that submission. It is difficult to see any legitimate basis upon which the Court should construe the term "partner" in s 10(1)(a) by reference to a Second Reading Speech which is directed not only to different (albeit related) legislation but also to a differently-worded provision. As has been emphasised, the statutory definition of "partner" in s 3 of the ART Act is clear and unambiguous.
104 The Court acknowledges that, as an exercise in law reform in the State of Victoria, a strong case might be made in favour of a woman in the applicant's circumstances not having to obtain the consent of her estranged husband if she wishes to receive IVF treatment using donor sperm. As has been emphasised, however, it is not the Court's task to resolve that question and to grapple with the complex moral and other issues which it presents. The Court's task is to construe the current legislation. It is a matter for the Victorian Parliament to amend that legislation if it considers that it is desirable to do so. The Parliament might also wish to consider the desirability of amending s 10A of the SOC Act which, on its face, appears not to include same sex relationships. Again, that is not a matter which falls for determination in this proceeding.
105 It is well to remember Frankfurter J's observations in Trop v Dulles (356 U.S. 86 at 119 (1958)):
All power is in Madison's phrase, "of an encroaching nature"… Judicial power is not immune against this human weakness. It also must be on guard against encroaching beyond its proper bounds, and not the less so since the only restraint upon it is self-restraint.
106 Finally, the undesirability of the Court assuming the role of legislator and effectively redrafting s 10(1)(a) in the manner suggested by the applicant raises complex questions not only about the ramifications of that course for the operation of other provisions in the ART Act, but also for several provisions in the SOC Act. As noted above, the two pieces of legislation overlap and interact in a significant degree. This is well reflected in the terms of ss 10C and 10D, which are set out in [25] and [26] above. I accept the submission of amici curiae that the applicant has not demonstrated that acceptance of her preferred construction would have harmonious ramifications for the SOC Act.