Counsel for plaintiff : Mr M Abbott QC with him Ms E Connolly

Counsel for defendants SAHC, NWAHS, Russell : Ms G Ebbeck

Solicitors for defendants SAHC, NWAHS, Russell : Crown Solicitor's Office

Counsel for defendants Repromed and Stables :
Mr B Austin

Solicitors for defendants Repromed and Stables : Finlaysons

Participant Mr B Selway QC Solicitor General: In Person

JUDGE1 WILLIAMS J

1. In this action the parties have agreed a written statement of facts and the case thus arising has been referred to the Full Court upon a Master�s order and with the consent of the parties.

The question at issue concerns the effect of s22 of the Sex Discrimination Act 1984 (Commonwealth) with reference to the Reproductive Technology Act (being the South Australian Act No. 10 of 1992. The plaintiff is desirous of participating in an in vitro fertilisation programme conducted under the auspices of the body formerly known as The Queen Elizabeth Hospital. It is common ground between the parties that the essence of this programme requires the application of "in vitro fertilisation procedure" as that term is defined in s3 of the Reproductive Technology Act; relevantly that section provides:

"3. In this Act unless the contrary intention appears- "in vitro fertilization procedure" means any of the following procedures- (a) the removal of a human ovum for the purpose of fertilization within or outside the body; (b) the storage of any such ovum prior to fertilization; (c) the fertilization by artificial means of any such ovum within or outside the body;

(d) the culture or storage of a fertilized ovum outside the body. (e) the transference of a fertilized or unfertilized ovum into the human body;

(Section 3 also defines "artificial fertilization procedure" as including an in vitro fertilization procedure).

The plaintiff separated from her husband in 1994 and currently resides alone. The administrator of the Hospital�s IVF programme has declined to provide the requested technology upon the basis that the plaintiff does not qualify to benefit from the service by virtue of s13(3) and (4) of the Reproductive Technology Act.

The plaintiff has challenged the application of these lastmentioned qualifying provisions upon the ground that they are inconsistent with the requirements of the Sex Discrimination Act by imposing a licensing system which denies artificial fertilization procedures except "for the benefit of" certain classes of married couples who are either married or who have cohabited as man and wife within the time frame specified in the Reproductive Technology Act.

The proceedings seek declaratory relief to establish the invalidity of the qualifying provisions of the Reproductive Technology Act to which I have referred.

The particular service licensed under the Reproductive Technology Act is provided by Repromed Pty Ltd, a company established by the University of Adelaide which carries out the clinical procedures in conjunction with the Hospital. These bodies together with the scheme administrators and the South Australian Health Commission (as the statutory licensor under the Reproductive Technology Act) are the defendants.

The plaintiff seeks relief which in its effect goes far beyond the immediate parties. The plaintiff seeks a declaration as to the operation of an important piece of legislation of the South Australian Parliament; s13 (which is now in question) lies at the core of the legislation. The matter is one where the public interest deserves to be separately represented. Accordingly, when the matter was called on for hearing, an adjournment was granted to enable the Attorney General to be represented. Upon the resumed hearing the Solicitor General (Mr BM Selway QC) appeared on the Attorney-General�s behalf. His submissions satisfy me that it is in the public interest to grant declaratory relief.

The power of this Court to make declaratory orders under s31 of the Supreme Court Act is expressed in terms which are limited only by the Court�s discretion to withold relief. When, as in the present case, the parties are substantially in agreement as to the terms of the proposed declaratory relief, I consider the presence before the Court of the Attorney General is highly desirable before the Court pronounces upon the alleged constitutional invalidity of legislation of this State by reason of its inconsistency with legislation of the Commonwealth.

The discretion to make a declaration must be exercised judicially notwithstanding that the parties to the proceedings are consenting to the proposed order. The power to grant declarations must be exercised with a proper sense of responsibility and full realisation that judicial pronouncements ought not to be issued unless there are circumstances which call for a decision to be made. (see Ibeneweka v Egbuna (1964) 1 WLR 219 at 224 per Lord Radcliffe and Myer Queenstown v Port Adelaide (1973) 6 SASR 240).

The present case involves (if the plaintiff�s argument is accepted) a collision between two important pieces of legislation. In my opinion the Court must ensure that its pronouncement is limited to the matters which it has had an opportunity properly to consider.

In the present case inconsistency is alleged in terms of s109 of the Australian Constitution which reads as follows: "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 inconsistency, be invalid."

The operation of that provision must be considered alongside the effect of s22a of the Acts Interpretation Act (SA): 22a (1) Every Act and every provision of an Act will be construed so as not to exceed the legislative power of the State.

(2) Any Act or provision of an Act which, but for this section, would exceed the power of the State, is nevertheless a valid enactment to the extent to which it does not exceed that power.

In the present case it is not difficult to discern a "direct conflict" between the Commonwealth legislation and the South Australian legislation as that term was used by Gibbs CJ in University of Wollongong v Metwally [1984] HCA 74; (1984) 158 CLR 447 at 455- 456. It is not possible to obey the dictates of each law in circumstances where each applies.

Section 22 of the Sex Discrimination Act provides: "22(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 or 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; or (c) in the manner in which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person.

(2) This section binds the Crown in right of a State."

The statutory concept of discrimination on the ground of marital status is dealt with in s6: "6.(1) For the purposes of this Act, a person (in this subsection referred to as the "discriminator") discriminates against another person (in this subsection referred to as the "aggrieved person") on the ground of the marital status of the aggrieved person if, by reason of: (a) the marital status of the aggrieved person; (b) a characteristic that appertains generally to persons of the marital status of the aggrieved person; or (c) a characteristic that is generally imputed to persons of the marital status of the aggrieved person;the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person of a different marital status.

(2) For the purposes of this Act, a person (in this subsection referred to as the "discriminator") discriminates against another person (in this subsection referred to as the "aggrieved person") on the ground of the marital status of the aggrieved person if the discriminator requires the aggrieved person to comply with a requirement or condition: (a) with which a substantially higher proportion of persons not of the same marital status as the aggrieved person comply or are able to comply; (b) which is not reasonable having regard to the circumstances of the case; and (c) with which the aggrieved person does not or is not able to comply."

Relevantly extracts from the Reproductive Technology Act are as follows: "13(1) Subject to subsection (7), a person must not carry out an artificial fertilization procedure except in pursuance of a licence granted by the Commission.

(3) A licence will be subject to- (a) ... (b) a condition preventing the application of artificial fertilization procedures except for the benefit of married couples in the following circumstances; (i) husband or wife (or both) appear to be infertile; or (ii) there appears to be a risk that a genetic defect would be transmitted to a child conceived naturally; (c) � (d) � (e) �

(4) In subsection (3)-"married couple" includes two people who are not married but who are cohabiting as husband and wife and who- (a) have cohabited continuously as husband and wife for the immediately preceding five years;or (b) have, during the immediately preceding six years, cohabited as husband and wife, for periods aggregating at least five years."

When the provisions of the Sex Discrimination Act and the Reproductive Technology Act are examined side by side it is immediately apparent that there is direct inconsistency between the two sets of legislation. The licensing condition required by s13(3)(b) prohibits the application of IVF (and other artificial fertilization procedures) except to married couples - including those in certain de facto relationships. By virtue of the mandatory licensing condition the IVF service is not available to a single person who has not been cohabiting as set out in s13(4). In such circumstances a person in the position of the plaintiff is treated less favourably under the Reproductive Technology Act than "a person of a different marital status". This is the very situation which is prohibited by s22(1) of the Sex Discrimination Act having regard to s6(1) thereof. In summary, the South Australian Act only allows a licensed service to be provided by the imposition of a condition which (in its statutory terms) is expressly prohibited by the Commonwealth legislation. It is not surprising that none of the parties to these proceedings - nor the Attorney General - sought to resist the conclusion that there was a collision between the two pieces of legislation such as to amount to "inconsistency" within s109 of the Australian Constitution.

The more difficult question

• and one which I think we should carefully refrain from now deciding - concerns the manner in which the Reproductive Technology Act should be read down and applied in the light of s22A of the Acts Interpretation Act. The submissions of the Solicitor General were most helpful.

Unless one regards s13(3) as being of the essence of the legislation so as to cause the whole of s13 to fall, there are a number of ways in which s13(3) could be read down.

The Solicitor General outlined the various ways in which a "blue pencil" might be applied. The Court is not required to resolve that question in the present proceedings. However, bearing in mind the limited argument which has been addressed in this case, it is important that the court moulds its present order in such a way as not to inhibit future consideration of the operation and interpretation of the Reproductive Technology Act in the light of the Sex Discrimination Act.

I consider that by reason of the reference to "married couples" in s13(3) of the Reproductive Technology Act it is useful in the public interest to make a declaration of inconsistency between s13 of that Act and the provisions of the Sex Discrimination Act. The will of South Australian Parliament as expressed in the Reproductive Technology Act is that the relevant procedures only be available under licence in the event of infertility or in cases where there appears to be a risk that a genetic defect would be transmitted to a child naturally conceived; whether these principles will be retained upon the reading down of the legislation under s22a is a matter for another day.

In my view an order should be made in the following terms: "Declare that insofar as s13 of the Reproductive Technology Act restricts the application of artificial fertilization procedures under licence except for the benefit of "married couples" (including the class of persons described in s13(4)) the same is inconsistent with the provisions of the Sex Discrimination Act (Commonwealth) and to such extent is invalid by virtue of the operation of s109 of the Australian Constitution."

JUDGE2 BOLLEN J 24. I agree with the reasoning of Williams J. I agree with the order which he proposes.