GENERALLY – where the applicant is 33 years of age – where the
applicant was sentenced to 10 years’ imprisonment
– where the
Source
Original judgment source is linked above.
Catchwords
ADMINISTRATIVE LAW – JUDICIAL REVIEW –GENERALLY – where the applicant is 33 years of age – where theapplicant was sentenced to 10 years’ imprisonment– where theapplicant applied under section 22 of the Corrective Services Act 2006(Qld) for approval to undergo oocyte cryopreservation – where therespondent refused the application – where the applicantapplied for astatutory order of review of the refusal – whether section 22(2)(b) of theAct does not forbid prisoners from applying for, or undergoing, oocytecryopreservation – whether the Court ought toquash the respondent’sdecision to refuse the applicationACTS OF PARLIAMENT – INTERPRETATION – GENERAL APPROACHES TOINTERPRETATION –where section 22(2) of the Corrective Services Act 2006 (Qld)prohibits a prisoner from participating in assisted reproductive technology orfrom applying for approval to participate inassisted reproductive technology
– where the applicant submits that section 22(2) prevents women from
undergoing assisted reproductive procedures that could result in pregnancy
during their custodial term – where the applicant submits that oocyte
cryopreservation is not one such procedure – whether
Judgment (114 paragraphs)
[1]
GENERALLY - where the applicant is 33 years of age - where the applicant was sentenced to 10 years' imprisonment - where the applicant applied under section 22 of the Corrective Services Act 2006 (Qld) for approval to undergo oocyte cryopreservation - where the respondent refused the application - where the applicant applied for a statutory order of review of the refusal - whether section 22(2)(b) of the Act does not forbid prisoners from applying for, or undergoing, oocyte cryopreservation - whether the Court ought to quash the respondent's decision to refuse the application
[2]
ACTS OF PARLIAMENT - INTERPRETATION - GENERAL APPROACHES TO INTERPRETATION -
[3]
where section 22(2) of the Corrective Services Act 2006 (Qld) prohibits a prisoner from participating in assisted reproductive technology or from applying for approval to participate in assisted reproductive technology - where the applicant submits that section 22(2) prevents women from undergoing assisted reproductive procedures that could result in pregnancy
[4]
during their custodial term - where the applicant submits that oocyte cryopreservation is not one such procedure - whether
[5]
that interpretation is consistent with the text, context and purpose of the provision
[6]
ACTS OF PARLIAMENT - INTERPRETATION - COMPATIBILITY WITH HUMAN RIGHTS
[7]
LEGISLATION - where section 22(2) of the Corrective Services Act 2006 (Qld) prohibits a prisoner from participating in assisted reproductive technology or from applying for approval to participate in assisted reproductive technology - where the applicant submits that section 22(2) applies only to prevent women from undergoing assisted reproductive procedures that could result in pregnancy during their custodial term - where the applicant submits that oocyte cryopreservation is not one such procedure - where the applicant submits that this interpretation is compatible with human rights legislation - whether that interpretation ought to be adopted in the circumstances
S Holt KC with J Underwood for the applicant S Robb KC with L Kruger for the respondent
[19]
Queensland Corrective Services, Legal Strategy & Services Group for the respondent
[20]
[1] Ms Smith is currently a 33 year old prisoner who was sentenced on 13 July 2021 to 10 years' imprisonment for trafficking in a dangerous drug. If Ms Smith were to serve the full term of her sentence, she would be 41 years of age on release. Ms Smith's parole eligibility enlivens the possibility of an earlier release at a time when she would be 39 years of age.
[2] The medical evidence in this proceeding established that there is a statistical reduction in a female's fertility in a comparison between the age period of 33 to 35 years of age, and the age period of 39 to 41 years of age. The medical evidence also established that in a comparison between those same age periods, the risk of chromosomal
[21]
abnormality statistically increases. This, in turn, increases the risk of an early or late pregnancy, and the potential presence of a long-term disability in a child born within that later age period.
[22]
[3] The same medical evidence established that the extraction and freezing of a female's eggs between the age period of 33 and 35 has the potential to reduce the risk of age- related infertility, and to reduce the risk of chromosomal abnormalities and the consequential risks which flow from that condition.
[4] Ms Smith wishes to have some of her eggs extracted and then frozen so that when she is released from prison, she has an opportunity to become pregnant and have a child in a way which reduces the above risks.
[5] In order to be able to freeze a female's eggs, the following steps are undertaken:
[23]
(a) the female will receive a series of injections of drugs to stimulate egg production and maturity;
(b) the female will then undergo a medical procedure, often under general anaesthetic, to extract eggs;
(c) the eggs are then frozen and stored; and
(d) the process is repeated, usually two to three times, so as to extract and freeze a sufficient number of eggs.
[24]
[6] I will better describe this process later in these reasons.
[7] Ms Smith applied for approval under s 22 of the Corrective Services Act 2006 (Qld) ("the CS Act") to undergo a process known as OÖCYTE cryopreservation, more commonly referred to as egg freezing. No part of Ms Smith's application to the Chief Executive of Queensland Corrective Services (the "Chief Executive"), involved her seeking to have those eggs fertilised and implanted whilst she is in prison. The basis of her application is that she only intends to use the eggs for fertilisation and implantation after she has left prison.
[8] That application was refused on the basis that s 22(2)(b) of the CS Act prohibited a prisoner from making an application to participate in "assisted reproductive technology".
[9] This proceeding will turn on the proper construction of s 22(2) of the CS Act, and in particular the meaning of the words, "assisted reproductive technology".
[10] In aid of her application, Ms Smith says s 22(2) of the CS Act should not be construed in a way which would be inconsistent with her human rights. Ms Smith relies on s 48 of the Human Rights Act 2019 (Qld) ("HR Act") in this respect. The human rights which Ms Smith refers to are the right of every person to have access to health services without discrimination (s 37 of the HR Act) and the right for all persons deprived of liberty to be treated with humanity and respect for the inherent dignity of the human process (s 30 of the HR Act).
[11] Whilst not conceded by the Chief Executive, it seems clear that s 22(2) of the CS Act operates to discriminate against prisoners (as compared to the larger community) by taking away from them, in absolute terms, the ability to participate in privately funded
[25]
"assisted reproductive technology". Privately funded "assisted reproductive technology" is an available health service within the marketplace. No submission was advanced by the Chief Executive as to why s 22(2) would not be contrary to at least s 37 of the HR Act.
[26]
[12] The real question in this proceeding can be framed as follows, is the extraction and freezing of a female's eggs within the meaning of "assisted reproductive technology" on the proper construction of s 22(2) of the CS Act?
[13] I have concluded that the answer to this question is in the affirmative. Ms Smith accepts that if this question is answered in the affirmative, then the application should be dismissed.
[14] I have structured these reasons to first identify the relevant statutory provisions and extrinsic material, to secondly identify relevant principles of statutory construction, and to thirdly consider and answer the real question in issue.
[27]
[15] It is important to identify the relevant statutory provisions of the CS Act and the HR Act, together with any relevant extraneous material which may assist in the proper construction of s 22(2) of the CS Act.
[16] Section 3 of the CS Act deals with the general purpose of the CS Act. It provides as follows:
[28]
(1) The purpose of corrective services is community safety and crime prevention through the humane containment, supervision and rehabilitation of offenders.
[29]
(2) This Act recognises that every member of society has certain basic human entitlements, and that, for this reason, an offender's entitlements, other than those that are necessarily diminished because of imprisonment or another court sentence, should be safeguarded.
[30]
(a) the need to respect an offender's dignity; and
(b) the special needs of some offenders by taking into account -
(i) an offender's age, sex or cultural background; and
(ii) any disability an offender has."
[31]
[17] The critical s 22 sits within Part 2 Division 1 of the CS Act. Division 1 is headed "Management of prisoners generally". The division then deals with a variety of ways in which Corrective Services makes decisions which affect the management of prisoners, both in terms of their physical management and the requirement to deliver information about prisoners to a variety of third parties who have an interest in the prisoners.
[18] Section 19 of the CS Act empowers the Chief Executive to make different arrangements for the incarceration of different classifications of prisoners, in light of security and risk considerations.
[19] Section 20 of the CS Act empowers Corrective Services officers to give directions to prisoners that those officers believe are necessary in a number of circumstances. Those circumstances include the welfare and custody of a prisoner, the taking of DNA samples from a prisoner, ensuring a prisoner does not commit an offence or a breach of discipline, or ensuring compliance with an order given or applying to a prisoner.
[20] Section 21 of the CS Act provides that the Chief Executive may order a health examination by a health practitioner of a prisoner and the prisoner must abide by it in certain designated circumstances set out in the section.
[21] Section 22 of the CS Act then deals with circumstances where a prisoner may apply to the Chief Executive for approval to be examined or treated by a health practitioner at the prisoner's expense.
[22] Where an application is able to be made, the Chief Executive then has a discretion as to whether a prisoner will be allowed to receive the requested privately funded examination or treatment by the health practitioner. The section provides as follows:
[32]
(1) Subject to subsection (2), a prisoner in a corrective services facility may apply in writing to the chief executive for approval to be examined or treated by a health practitioner nominated by the prisoner.
[33]
(2) A prisoner in a corrective services facility can not -
[34]
(a) participate in assisted reproductive technology; or
(b) apply for the chief executive's approval to participate in assisted reproductive technology.
[35]
(3) The chief executive may give the approval mentioned in subsection (1) if satisfied -
[36]
(a) the application for the approval is not -
(i) frivolous or vexatious; or
(ii) for an examination or treatment for participating in assisted reproductive technology; and
(b) the prisoner is able to pay for the examination or treatment and associated costs; and
(c) the health practitioner nominated by the prisoner is willing and available to carry out the examination or treatment of the prisoner.
[37]
(4) The prisoner must pay for the examination or treatment and associated costs.
[38]
(5) The chief executive must consider, but is not bound by, any report or recommendation made by the nominated health practitioner."
[39]
[23] Section 23 of the CS Act deals with the circumstances where the Chief Executive must notify certain people if a prisoner is dangerously ill or seriously injured.
[24] Section 24 of the CS Act deals with the circumstances where a prisoner has died and dictates who the Chief Executive must notify of the death.
[25] Certain portions of the explanatory memorandum will be relevant to the submissions made by the parties and the real question in this proceeding. I extract those portions below.
[26] At page 1 of the explanatory memorandum for the Corrective Services Bill 2006 (Qld) ("the CS Bill"), the following statements appear:
[40]
Therefore, the major policy objectives of the legislation are to -
[41]
clarify that certain human entitlements are necessarily diminished as a result of imprisonment;
[42]
[27] At pages 14 and 15 of the explanatory memorandum for the CS Bill, the following statements appear:
[43]
"Certain entitlements are necessarily diminished as a result of imprisonment
[44]
This objective will be achieved by the introduction of new provisions
... It is widely acknowledged and accepted that imprisonment necessarily diminishes many other entitlements which may be freely enjoyed in the community. With respect to the following issues, consideration regarding fundamental legislative principles will be addressed later in these notes.
[45]
In Queensland, the entitlement of prisoners to receive conjugal visits was considered and rejected by the 1988 Kennedy Review and sexual activity during contact visits is clearly prohibited under the Act.1
Advances in medical technology for the treatment of infertile couples, has led to an increase in requests by prisoners in custody to participate in assisted reproductive technology. Whether access to assisted reproductive technology is a right or a privilege is still undecided
[46]
The reference to 'Act' in the memorandum is a reference to the predecessor Act to the CS Act. That predecessor Act was the Corrective Services Act 2000 (Qld). The prohibition on sexual activity during contact visits was found in s 124(3)(a) of that predecessor Act.
[47]
amongst the general population, let alone the prison population. In the community, decisions about whether access to assisted reproductive technologies is granted require the consideration of whether a couple is medically infertile. Prisoner requests for assisted reproductive technology do not usually relate to medical infertility and as the majority of the prison population in Queensland is male, artificial insemination is the form of assisted reproductive technology most frequently requested by prisoners.
The Bill provides that prisoners in custody will not be entitled to access assisted reproductive technology. This prohibition ensures equity in decision making between prisoners and does not require correctional authorities to make value judgments as to whether individual prisoners should be allowed to procreate while they are in prison.
[48]
[28] At pages 19 and 20 of the explanatory memorandum for the CS Bill, the following statements appear:
[49]
"Consistency with Fundamental Legislative Principles
[50]
The Bill has been drafted with due regard to the Fundamental Legislative Principles (FLPs) as outlined in the Legislative Standards Act 1992 (the LSA).
[51]
Section 4(2) of the LSA requires that legislation has sufficient regard to the rights and liberties of individuals. In particular section 4(3) (g) of the LSA provides that "the legislation does not adversely affect rights and liberties, or impose obligations, retrospectively."
At the outset, it can generally be stated that the constraints of the correctional environment, the need to protect the safety and security of the correctional system and the persons therein, together with the need to protect the wider community, justifies the need for the Bill being drafted in this way. In this regard, it is widely recognised that the correctional environment is one where the operation of many rights and liberties enjoyed in the general community cannot be reasonably expected to be enjoyed by the prison population (for example, EARC 1993 Report on the Preservation and Enhancement of Individuals' Rights and Freedoms, PSMC 1993 Review of the Queensland Corrective Services Commission and Kennedy 1988 Commission of Review into Corrective Services in Queensland (Final Report)).
The Scrutiny of Legislation Committee in Alert Digest Issue No 10 of 2000 clearly stated that the committee proceeds from the position that prisoners have rights but those rights are not the same as those of a free citizen. Prisoner rights must necessarily take a significantly attenuated form, given the status of prisoners and the imperative necessarily associated with the conduct of corrective institutions. These imperatives include the need to maintain order and security, to prevent violence and to prevent escapes. In addition, while the focus of incarceration has moved substantially towards rehabilitation, it
rightly retains a punitive and deterrent element. On that basis, it is inevitable that a prison environment will afford prisoners fewer facilities and personal freedoms than those enjoyed by the general public.
There are a number of clauses in the Bill which have been translated from the Act [this is a reference to the predecessor Act], that are possible breaches of fundamental principles. These provisions are outlined below, in addition to a number of new clauses in the Bill that may be considered to be in breach of fundamental legislative principles.
[52]
[29] At pages 23 and 24 of the explanatory memorandum for the CS Bill, the following statements appear:
[53]
The Bill provides a clear legislative prohibition on prisoners in custody accessing assisted reproductive technology. Although the Act [this is a reference to the predecessor Act] is silent on whether prisoners in custody are entitled to access assisted reproductive technology, it can be implied from the prohibition on sexual activity during visits that it was never intended that prisoners should be able to conceive children whilst in custody. The 1988 Kennedy review also rejected the notion of conjugal visits in prison.
This possible breach of fundamental legislative principle must be balanced against a plethora of complicated social and financial issues which would arise if both male and female prisoners were entitled to access artificial reproductive technology while in custody. It is not yet settled that persons in the general community have a right to access assisted reproductive technology and as has been recognised by the Scrutiny of Legislation Committee, prisoner's rights are not the same as free citizens.
As a result of the clear statement of intent in the Bill, prisoner access to assisted reproductive technology is prohibited. A clear prohibition ensures equity in decision making between prisoners and does not require correctional authorities to make value judgments as to whether individual prisoners should be allowed to procreate while in prison and are suitable to parent and provide for a child.
[54]
[30] At page 49 of the explanatory memorandum for the CS Bill, the following statements appear:
[55]
Clause 22 provides that a prisoner may apply for approval to be examined or treated by a doctor or psychologist of the prisoner's choice.
[56]
The provision makes it clear that the right to procreate does not survive imprisonment and that a prisoner in a corrective services facility can not apply for approval to participate in assisted reproductive technology or participate in assisted reproductive technology."
[57]
[31] I turn then to the HR Act. The relevant human rights which are said to be applicable here are those contained in parts of ss 30 and 37 of the HR Act. They are as follows:
[58]
(1) All persons deprived of liberty must be treated with humanity and with respect for the inherent dignity of the human person.
[59]
(1) Every person has the right to access health services without discrimination.
[60]
[32] The submission of Ms Smith then relies, in part, on s 48 of the HR Act. It is an interpretive provision which is as follows:
[61]
(1) All statutory provisions must, to the extent possible that is consistent with their purpose, be interpreted in a way that is compatible with human rights.
[62]
(2) If a statutory provision can not be interpreted in a way that is compatible with human rights, the provision must, to the extent possible that is consistent with its purpose, be interpreted in a way that is most compatible with human rights.
[63]
(3) International law and the judgments of domestic, foreign and international courts and tribunals relevant to a human right may be considered in interpreting a statutory provision.
[64]
[33] Having extracted the relevant statutory provision and extraneous material, I turn then to the relevant principles of statutory interpretation.
[34] In R v A2[2019] HCA 35; (2019) 269 CLR 507, Kiefel CJ and Keane J (with whom Nettle and Gordon JJ agreed), identified an orthodox approach to the task of statutory construction.
[35] First, it must commence with a consideration of the words as used in the relevant provision under construction. Attention must be given to the actual words used rather than looking at paraphrases of the words which may appear in extrinsic materials. The importance of looking at the actual words derives from the fact that it is those words which are being interpreted. One aspect of the importance of the text used is
[65]
that a very general statutory purpose will ordinarily not detract from the ordinary meaning of those words.
[66]
[36] Secondly, paying close attention to the words actually used in the statute does not suggest a return to the literal approach of statutory construction. The literal approach was abandoned many years ago.
[37] Thirdly, the next step is to ensure that the words being construed are read within the context in which they appear in the statute at large and with reference to any mischief to which the provision is directed. By this process, the courts have recognised that even though words may bear an apparently plain meaning, if they do not conform to the evident purpose or policy of the particular provision, it is appropriate for the courts to depart from that apparently plain meaning. Ultimately, the construction which promotes the purpose of a statute is to be preferred.2
[38] Fourthly, in identifying a mischief to which a particular section is directed, it is permissible to look at both the context in which the words appear within the larger statute, as well as categories of extrinsic materials identified in s 14B of the Acts Interpretation Act 1954 (Qld).
[67]
Is the extraction and freezing of a female's eggs within the meaning of "assisted reproductive technology" on the proper construction of s 22(2) of the CS Act?
[68]
[39] Ms Smith contends that the extraction and freezing of a female's eggs does not come within the meaning of "assisted reproductive technology" as that phrase appears in s 22(2) of the CS Act. Ms Smith submitted that the ordinary meaning of "assisted reproductive technology" is the application of technology at a point where reproduction can occur by its implementation, such as invitro fertilisation or artificial insemination.
[40] On Ms Smith's case, this is to be contrasted with the process of egg extraction and freezing. Ms Smith contends that the extracting and freezing of eggs per se have no capacity, as a matter of biology, to bring about reproduction in the sense that it cannot result in a pregnancy. Ms Smith submits that these acts are merely preparatory activities to later processes which involve conception or post-date conception. On Ms Smith's case, it is only those later processes which constitute "assisted reproductive technology".
[41] Ms Smith contends that her construction of "assisted reproductive technology" is one which is open on the text. Indeed, she submitted that her construction is the overwhelmingly available construction when regard is had to the context and purpose of the words as they appear in s 22 of the CS Act. In making that submission, Ms Smith concedes that "assisted reproductive technology" does have a possible broader meaning. This broader meaning includes egg extraction and egg freezing, but on her case, the context and purpose of the words in s 22 strongly point against this broader meaning being the one intended for by Parliament.
[42] Ms Smith submitted, in the orthodox way, that the Court should not make a fortress out of dictionary definitions. However, Ms Smith went on to submit there is some significance in the following definitions:
[71]
(a) the Oxford English Dictionary defines "assisted reproductive technology" to mean "such technology used for the treatment of infertility, typically involving the manipulation of eggs, sperm and embryos"; and
(b) the Merriam-Webster Medical Dictionary defines "assisted reproductive technology" to mean "the use of technology to assist human reproduction in the treatment of infertility".
[72]
[43] Beyond dictionary definitions, Ms Smith accepted that a scientific meaning of a word or phrase can be considered by the Court when construing the meaning of that word or phrase in a statute. However, in order for that to occur, Ms Smith submitted there has to be admissible evidence which establishes the scientific meaning. In this case, Ms Smith contends that there is no such admissible evidence.
[44] Ms Smith contended that none of the evidentiary material tendered into evidence by the Chief Executive in this proceeding established such a scientific meaning. That tendered evidence was:
[73]
(a) the Code of Practice for Assisted Reproductive Technology Units 2021, being a code of practice promulgated by the Fertility Society of Australia and New Zealand via its Reproductive Technology Accreditation Committee;
(b) the Ethical Guidelines on the Use of Assisted Reproductive Technology in Clinical Practice and Research, 2017 (updated 2023) ("NHMRC Guidelines"), being guidelines promulgated by the Commonwealth National Health and Medical Research Council;
(c) the Australian Institute of Health and Welfare National Perinatal Statistics Unit and Fertility Society of Australia (assisted reproduction technology series) ("Technology Series"), being a statistical publication promulgated by the Australian Institute of Health and Welfare; and
(d) the Reproductive Technology Council, Glossary of Terms, being a Western Australian organisation ("Glossary").
[74]
[45] It was ultimately submitted by Ms Smith that those materials, in any event, support the construction of "assisted reproductive technology" which she contends for.
[46] One of the examples provided by Ms Smith in her written submissions in reply referred to the NHMRC Guidelines which she said defined "assisted reproductive technology" as "the application of laboratory or clinical techniques to gametes and/or embryos for the purpose of reproduction." A gamete is simply a reference to a reproductive cell, either being an egg or a sperm. It was said by Ms Smith that this definition did not assist the Chief Executive's position, because to extract and freeze a gamete is not to apply a technique to it for the purpose of reproduction.
[47] Ms Smith gave a similar example by way of the Technology Series which stated, "ART encompasses procedures and techniques including the manipulation of gametes, zygotes and embryos. The main ART procedures include..." IVF, ICSI and GIFT. Each of those ART procedures referred to had descriptions of either external
[75]
fertilisation, or in the case of GIFT, internal fertilisation. It was said by Ms Smith that this definition also did not assist the Chief Executive as egg extraction and freezing did not involve the manipulation of gametes. Further, it was said that the main ART procedures were described by reference to the point of conception.
[76]
[48] Ms Smith then submitted that the purpose of the CS Act was to provide for community protection:
[77]
(a) "through human containment" (s 3(1));
(b) consistent with "basic human entitlements" that "should be safeguarded" (s 33(2)) except for entitlements "that are necessarily diminished because of imprisonment" (s 3(2));
(c) recognising "the need to respect an offender's dignity" (s 3(3)(a)); and
(d) taking into account an offender's age and sex (s 3(3)(b)).
[78]
[49] Ms Smith contended that this purpose pointed decisively against a view that s 22(2) of the CS Act was intended to inhibit the ability of a female to have children after she was released from incarceration. She submitted that s 22(2) must be understood to have a different purpose.
[50] I note that Ms Smith's written submissions had contended that the location of s 22(2) in Part 2 Division 1 of the CS Act was of significance in identifying this specific purpose. Ms Smith had submitted, in writing, that the mischief s 22(2) was aimed at addressing was Corrective Services having to manage pregnant female prisoners whilst they are incarcerated. It was submitted that permitting pregnancies within prison has a profound effect on prison management. This initial written submission was expressly abandoned in Ms Smith's oral submissions as it had overlooked portions of the explanatory memorandum to the Bill. The memorandum had identified that the most common form of requests for participation in "assisted reproductive technology" was in relation to male prisoners asking for access to artificial insemination. This emphasis on male prisoners seeking to participate in "assisted reproductive technology" spoke strongly against the mischief being corrective services having to deal with pregnant female prisoners whilst they are incarcerated.
[51] In oral submissions, a quite separate mischief was promoted. This submission focussed on those parts of the explanatory memorandum to the ART Bill which spoke of:
[79]
(a) a pre-existing implied intention evident from the predecessor statute, that prisoners (male and female) should not procreate whilst in prison;
(b) the prohibition on participation in "assisted reproductive technology" making clear that the right to procreate does not survive imprisonment; and
(c) the clear prohibition ensuring that correctional services did not have to make value judgments as to whether individual prisoners should be allowed to procreate whilst they are in prison.
[80]
[52] By reference to those portions of the extrinsic material, it is said that the mischief which s 22(2) is aimed at addressing is male and female prisoners procreating whilst
[81]
in prison. That procreation could be a prisoner falling pregnant or a person associated with that prisoner falling pregnant by the use of the prisoner's gamete (sperm or egg).3 Ms Smith submitted that the purpose of s 22(2), namely to avoid this mischief, firmly points to Ms Smith's construction. On Ms Smith's case, the process for the extraction and freezing of a female's eggs would not be "assisted reproductive technology", and if a prisoner's intent at the time of application was not to seek to fertilise the eggs during the period of incarceration, then the extraction and freezing of the eggs of that prisoner could not be said to be the participation in "assisted reproductive technology".
[82]
[53] Ms Smith then turned to the HR Act. She submitted that so long as there was an open construction that "assisted reproductive technology" did not include egg extraction and freezing, then s 48 of the HR Act operated so that this open construction should be the preferred construction for s 22(2) of the CS Act. On Ms Smith's case, as her construction of the phrase was said to be one which was open and overwhelmingly consistent with the context and purpose of the CS Act and s 22(2) itself (by reference to the mischief), s 48 further supports its adoption so as to do as little violence as possible to the human right in question.
[83]
[54] I do not accept Ms Smith's construction of "assisted reproductive technology" as it appears in s 22(2) of the CS Act.
[55] I find that the ordinary meaning of the phrase "assisted reproductive technology" includes the processes of egg extraction and freezing. I do not accept that the words "assisted reproductive technology" have an available ordinary meaning which excludes the process of egg extraction and freezing. My reasoning is as follows.
[56] First, the starting point in the construction process is a consideration of the words of the text itself. Here, there is no statutory definition of "assisted reproductive technology" within the CS Act.
[57] Looking at the composite words in the phrase and the processes involved in egg extraction and freezing, I make the following observations. The processes of egg extraction and freezing involve the use of various technologies.
[58] The processes include the use of drug technology and medical technologies.
[59] Specific hormonal drugs are used to stimulate the production of multiple follicles within a female's ovaries. A later drug is then used to stop the follicles produced from ovulating. A third drug is then used to initiate the final process of egg maturation. During the period over which these three drugs are administered, daily medical examinations will take place in order to monitor the ovaries by means of blood tests and ultrasounds. Those will generally occur over a period of 9 to 12 days.
[60] The extraction process is a medical procedure performed under a general anaesthetic or some other form of sedation. It involves the use of an ultrasound probe which
[84]
In the case of a female prisoner, her egg might be implanted in a same-sex partner or in a surrogate who were not themselves prisoners.
[85]
assists in the guiding of a needle, which then allows each follicle to be aspirated by suction.
[86]
[61] Each extracted egg is then assessed by a scientist. Each egg is then stripped of surrounding cells, which are known as the cumulus. The stripping process is undertaken by a scientist.
[62] The stripped eggs are then frozen by vitrification, and stored.
[63] All of these processes involve the use of technology and are applied solely for the purpose of assisting in reproduction.
[64] On a literal interpretation, the extraction and freezing of eggs are unambiguously a part of "assisted reproductive technology". I say they are a part of "assisted reproductive technology" as they are one in a series of sequential, technological steps required for the potential birth of a child.
[65] Secondly, I do not accept that egg extraction and freezing can be described as being outside of the ordinary meaning of "assisted reproductive technology" on the basis that they are but mere pre-conditions to a later group of steps which solely constitute "assisted reproductive technology".
[66] In a sense, as the egg extraction is the first step in an overall process which may result in the birth of a child, it can be described as a pre-condition to each sequential step. However, merely because it is the first step in an overall process does not equate to it lying outside the ordinary meaning of "assisted reproductive technology". In a real sense, but for the development and implementation of the technologies for the egg extraction process, none of the subsequent sequential steps could occur.
[67] In the same sense, the step of the fertilisation of an egg in a laboratory is itself a pre- condition to the later sequential step of the implantation of an embryo in a female.
[68] Choosing the point of conception as the starting point for "assisted reproductive technology" is an arbitrary choice. The word "reproductive" as used in the phrase is not a reference to conception, but is clearly referring to the reproduction of a child.
[69] To take the reasoning of Ms Smith to its ultimate conclusion, the only point in time, as a matter of biology, when reproduction becomes viable by the use of technology is when a fertilised egg, or a male and female gamete, are placed or are present in a female's reproductive organs. It is equally arbitrary to suggest that only this lest step constitutes "assisted reproductive technology".
[87]
4 Built Qld Pty Ltd v Pro-Invest Australia Hospitality Opportunity (ST) Pty Ltd(2022) 13 QR 148 at
[88]
[30] per Dalton JA, with whom Morrison JA and Bradley J agreed.
[89]
not be constructed from a dictionary definition. However, I do not accept that the definitions referred to by Ms Smith support the construction she contends for.
[90]
[72] The extract from the Merriam-Webster dictionary relied upon by Ms Smith did contain the extract she quoted, however immediately following that extract, the following additional words appeared in the dictionary:
[91]
"especially: a procedure (such as invitro fertilisation or gamete intra fallopian transfer) that involves the removal of eggs from an ovary and fertilisation by sperm in vitro..."
[92]
[73] Two points emerge from this. The extract quoted by Ms Smith is in broad terms which amply accommodates egg extraction and freezing within the meaning of "assisted reproductive technology". Further, and clearly enough, the additional extract from the dictionary definition set out above expressly refers to the process of the removal of eggs as part of "assisted reproductive technology".
[74] The Oxford dictionary definition referred to is again in broad terms, namely "such technology used for the treatment of infertility". That broad definition, again, amply accommodates egg extraction and freezing within the ambit of its meaning. What Ms Smith focuses on is the additional words which follow the broad definition, namely, "typically involving the manipulation of eggs, sperm and embryos". Ms Smith emphasises the word "manipulation" in order to submit that egg extraction and freezing is not within the meaning of the defined phrase. This submission is misplaced for three reasons:
The use of the word "typically" does not confine the ambit of the broader definition.
Egg extraction involves "manipulation" of the egg. Its growth and maturity are manipulated by drugs. It is physically manipulated in the extraction process I have described above by being captured in the needle through aspiration. It is again physically manipulated again by having the cumulus surrounding it stripped by a scientist.
The focus on the word "manipulation" has the appearance of an attempt to build a fortress out of the meaning of a selective word in a larger dictionary definition.
[75] I do not read either of these definitions as somehow being contrary to the ordinary meaning of the words as I have found them to be, or supporting that Ms Smith's construction of the words are open as an alternative ordinary meaning for those words.
[76] Fourthly, consideration should be given to whether there is an accepted scientific meaning of "assisted reproductive technology". The material tendered by the Chief Executive does not indicate that "assisted reproductive technology" has an available meaning different to that which I have found to be the ordinary meaning of the words. Having made that initial observation, it is also relevant to note that the tendered material is generally of limited relevance as the various documents are functionally intended for a variety of purposes other than defining the meaning of "assisted reproductive technology" in a definitive scientific sense.
[93]
"Includes a range of methods used to circumvent human infertility including in vitro fertilisation (IVF), embryo transfer (ET), gamete intra-fallopian transfer (GIFT), artificial insemination (AI), all manipulative procedures involving gametes and embryos and treatment to induce ovulation or spermatogenesis when used in conjunction with the above methods (National Health and Medical Research Council (NHMRC) Ethical Guidelines on Assisted Reproductive Technology 1996)."
[94]
[81] Again, this definition is consistent with the ordinary meaning of "assisted reproductive technology" which I have found above.
[82] These documents simply serve to illustrate that organisations within the "assisted reproductive technology" field tend to use broad definitions which reflect the ordinary meaning I have found above. However, what they do not contain is a uniform single scientific definition of the words.
[83] Reference can be made to scientific dictionaries such as the Oxford Dictionary of Biology (8th ed), which defines "assisted reproductive technology" in the following terms:
[95]
"Any of a range of techniques for improving the fertility of animals, including humans, in which eggs and/or sperm are extracted from the respective animal(s) for manipulation in some way. One of the best known is in vitro fertilization, in which ova (egg cells) are placed with sperm in a culture medium so that fertilization occurs and embryos start to develop. Healthy embryos are then selected and implanted in the mother's uterus to continue their development. Such techniques are widely used to overcome certain forms of human infertility and in breeding elite livestock. Early-stage embryos can undergo genetic analysis, for instance to screen for certain genetic diseases or (in livestock) to select progeny with desirable genetic traits or a particular sex."
[96]
[84] Again, such a definition expressly includes egg extraction as being within "assisted reproductive technology". Nonetheless, I am not satisfied that there is admissible evidence or dictionary definitions which provide a single accepted scientific meaning
[97]
for "assisted reproductive technology", beyond or different to the ordinary meaning which I have found above.
[98]
[85] Fifthly, the context in which the section is contained within the relevant Act is consistent with the ordinary meaning of "assisted reproductive technology". As was recognised in the original written submissions of Ms Smith, s 22 sits in a division of the CS Act which deals with the management of prisoners. Specifically, it is dealing with a section which provides a discretion to allow the undertaking of privately funded medical examinations and treatments.
[86] Section 22(2)(a) of the CS Act contains a broad prohibition on a prisoner participating in "assisted reproductive technology". Section 22(2)(b) of the CS Act contains a prohibition on a prisoner applying to the Chief Executive to allow the prisoner to participate in "assisted reproductive technology".
[87] Section 22(2)(b), read with s 22(1), is focussed on the physical management of prisoners within the prison environment. In terms of the operation of s 22(2)(b) of the CS Act, an application of the ordinary meaning5 of "assisted reproductive technology" would mean that all female prisoners would be uniformly prohibited from applying for access to medical examinations and treatments associated with individual steps within the overall process. This would include egg extraction and freezing, as well as potentially the implantation of embryos.6 In this way, the prisoner is being managed.
[88] Sixthly, the general purpose of the CS Act as reflected in s 3 of that Act does not strongly point against the ordinary meaning of the words "assisted reproductive
[99]
technology", as I have found it to be. Section 3 recognises that the CS Act has been drafted with prisoners' ordinary human entitlements in front of mind. It serves to reinforce that the provisions as drafted are intended to articulate how those entitlements are detracted from, due to prisoners' incarceration. Consistent with that purpose, s 22 represents the striking of the relevant balance between a prisoner's ordinary human entitlements and the consequences of being in a system of incarceration where Corrective Services must manage prisoners. That balance has been struck whilst Parliament gave express consideration to the factors set out in s 3(3) of the CS Act. The s 3 purpose does not provide a clear indication of an intention to further rebalance the competing factors by adopting a meaning other than the ordinary meaning of the words used. The ordinary meaning of those words reflect the balance as struck.
[100]
[89] Seventhly, the next step is to look at the extrinsic material through the lens of s 14B(1) of the Acts Interpretation Act 1954 (Qld). What can be taken from the explanatory memorandum is the following.
The explanatory memorandum stated that it had been implicit from the ban on pre-existing conjugal visits that there was an intent that prisoners should not be able to conceive in prison. This was a reference to the predecessor Act that had expressly prohibited conjugal visits.
[101]
The reference to implantation of embryos assumes that it is the female prisoner who is to seek to bear the child rather than a same-sex partner or surrogate outside the prison's environs.
The explanatory memorandum referred, in effect, to there being an open question of whether access to "assisted reproductive technology" was a right or privilege from a community perspective, let alone the prison population. The explanatory memorandum did not purport to state a resolution of the question it posed, beyond noting that prisoner's rights are not the same as those of free citizens.
The explanatory memorandum identified in two separate locations that there was a clear statement of intent in the bill that prisoners' access to assisted reproductive technology is prohibited. Further, the clear prohibition was said to ensure equity in decision-making between prisoners and did not require correctional authorities to make value judgments as to whether individual prisoners should be allowed to procreate while in prison and are suitable to parent and provide for a child.
When dealing with s 22 of the CS Act specifically, the memorandum provided in broad terms that the section made it clear that the right to procreate did not survive imprisonment, and that a prisoner cannot apply for approval to participate, or participate in assisted reproductive technology.
There was nothing in the explanatory memorandum which expressly provided that "assisted reproductive technology" was intended to be limited to processes where conception first occurred or processes which were subsequent to conception having occurred. That is, the explanatory memorandum did not seek to define "assisted reproductive technology".
[102]
[90] The extrinsic material confirms that s 22(2)(b) has the intended purpose of excluding prisoners from accessing "assisted reproductive technology" for the duration of their imprisonment. This is achieved by a clear statement of intent that access to and the right to apply for access to "assisted reproductive technology" is prohibited.
[91] A purpose for this prohibition is to preclude procreation whilst a prisoner is in prison. That purpose is achieved by the application of the ordinary meaning of "assisted reproductive technology" as I have found it to be.
[92] Further, s 22(2)(a) of the Act imposes a prohibition on not just "assisted reproductive technology" steps which take place physically to a prisoner, but also imposes a prohibition on non-physical steps. Examples of non-physical steps which s 22(2)(a) would prohibit, but s 22(2)(b) would not operate in respect of, include a prisoner giving consent for the use of a gamete in the fertilisation process, or a prisoner giving consent to the implantation of an embryo into a partner or surrogate who are not themselves prisoners. Those non-physical steps do not involve the prisoner being physically examined or treated.
[93] The use of the ordinary meaning of s 22(2)(a) of "assisted reproductive technology", as I have found it to be, would be consistent with and aid the policy of the broader prohibition found in s 22(2)(a). Relevantly, it would do so by ensuring a uniform prohibition on physical examinations and treatments which would result in egg extraction and egg freezing. By the exclusion of those physical examinations and treatments, there is then no room for a prisoner to seek to avoid the broader prohibition in s 22(2)(a). It avoids the possibility of prisoners changing their intention about wishing to procreate whilst serving their sentence, or lying about their intention
[103]
not to procreate during their sentence at the application phase, and then attempting to avoid the more general prohibition in s 22(2)(a) by causing a person outside of prison to use the extracted and frozen egg to bear a child.
[104]
[94] I understand that Ms Smith submitted that I should not use the possibility of a person seeking to breach the more general prohibition as a basis to construe the words "assisted reproductive technology". For clarity, this particular factor is not critical to my reasoning, as I would have reached the same conclusion without having regard to it. However, I am of the view that it is a relevant factor for construction purposes, because it involves a consideration of the context of the operation of each of ss 22(2)(a) and 22(2)(b), and how the policy and purpose of a broader prohibition in s 22(2)(a) would be supported.
[95] Another purpose is that by the clear prohibition of access to "assisted reproductive technology", all prisoners are treated equitably. By the use of the ordinary meaning, as I have found it to be, all prisoners are treated equitably as they are all equally denied the opportunity to apply for "assisted reproductive technology". Applying some form of arbitrary meaning to "assisted reproductive technology" based on a present intention of a prisoner not to seek to have a child during the term of imprisonment would lead to unequal treatment. Certain prisoners would be allowed to have medical examinations and treatments to extract and freeze gametes, whilst others would be denied this.
[96] Eighthly, I need to address a submission made by the Chief Executive that the ordinary meaning of "assisted reproductive technology" was also supported by reference to the Assisted Reproductive Technology Bill ("ART Bill") which was before Parliament at the time of the hearing. I note that the ART Bill became the Assisted Reproductive Technology Act 2024 (Qld) ("the ART Act") shortly after the hearing.
[97] As both parties ultimately sought support from the ART Bill (now the ART Act), I will address both sets of submissions.
[98] I start by accepting Ms Smith's submission that it is unorthodox to seek to draw support for the construction of an earlier act from a mere bill. Until a bill is passed by Parliament, it does not reflect the intent of Parliament. Accordingly, the ART Bill essentially has no relevance to the question before the Court.
[105]
(a) storage of gametes or embryos; and
(b) the obtaining of a gamete from a gamete provider.
[106]
[103] Ms Smith submitted that this demonstrated that egg extraction and freezing processes were not ART procedures.
[104] Ms Smith submitted that ART procedures, within the meaning in the ART Bill were actual medical procedures, whereas the wider concept of ART service was simply for the associated regulation of the fertility industry, for example, by providing that a person who undertakes an ART service is to be licensed.
[105] Ms Smith noted that the ART Bill was consistent with the New South Wales legislation, whilst also noting that the Victorian legislation, called the Assisted Reproductive Treatment Act 2008 (Vic), was somewhat different in that it only used a defined term which was broadly similar to the "ART procedure" term used in the ART Bill and in the New South Wales Act.
[106] On Ms Smith's submissions, the above review of the ART Bill and the other Acts supported the submission that the mere removal of a gamete in the form of an egg for the purposes of freezing for a potential future fertility treatment is not, of itself, "assisted reproductive technology".
[107] I reject that submission. The ART Bill (and now the ART Act) does not define "assisted reproductive technology" itself. The concepts of ART procedures and ART services are discrete statutory definitions. They are used for varying purposes in the ART Bill, now the ART Act, but they do not themselves throw light on what is "assisted reproductive technology" itself.
[108] Reference to the explanatory memorandum for the ART Bill makes plain that "assisted reproductive technology" as used in the ART Bill and now the ART Act includes procedures for egg extraction in females.
[109] The memorandum defined "Assisted Reproductive Technology" as ART. It then provided on the first page of the memorandum the following statement:
[107]
ART refers to treatments or procedures that address fertility. It can include artificial insemination (other than self-insemination), in-vitro fertilisation (IVF), gamete intrafallopian transfer and other related treatments or procedures. It helps those with fertility issues, genetic risks and diverse genders and sexualities who may not be able to conceive naturally. Donor conception is a growing area of ART that
supports LGBTIQ+ people, single women and couples experiencing infertility who would not be able to conceive without the use of donated gametes (sperm or eggs) or embryos.
ART is typically performed in dedicated clinics that specialise in fertility treatment. Some of the more invasive procedures, such as egg retrieval, are also performed in health facilities (for example, day hospitals) under anaesthetic." (Underlining added).
[108]
[110] A subsequent Act which is not an amending Act to the earlier Act which is under construction is also of little use. In relation to the ART Act, it post-dates the CS Act which is being construed by the Court. It does not amend the CS Act.
[111] Further, as the ART Act is the later Act, the general principle of in pari materia is not open to be considered.7
[112] To the extent there is any relevance to the ART Act for the purposes of construing s 22(2) of the CS Act, the relevance lies in it simply being an example of the use of the ordinary meaning of "assisted reproductive technology". However, it would be wrong to say that because this is the meaning of the words in the ART Act, then it should be presumed that the words have the same meaning in the earlier Act. That would be an impermissible way to approach the construction of s 22, and I do not apply it in this case.
[113] Ninthly, a consideration of s 48(2) of the HR Act does not lead to a different result.
[114] Section 48(2) of the HR Act does not state a test for construction which differs from the approach ordinarily undertaken by courts towards statutes. Section 48(2) of the HR Act is an interpretive provision which operates together with other rules of statutory interpretation. It does not authorise this court to effectively rewrite legislation to make it compatible with human rights.
[115] In this respect, I refer to the observations by Crennan and Kiefel JJ in Momcilovic v The Queen(2011) 245 CLR 1 at [565] and [566] as follows:
[109]
"Section 32 does not state a test of construction which differs from the approach ordinarily undertaken by courts towards statutes. Its terms identify an approach of interpretation which has regard to the terms and to the purpose of the statutory provision in question, as previously discussed. The statutory direction in s 32(1), that statutory provisions "must be interpreted in a way that is compatible with human rights", is qualified by the recognition that such an interpretation is to be effected only "[s]o far as it is possible to do so consistently with their purpose". This statutory direction seeks to ensure that Charter rights are kept in mind when a statute is construed. The direction is not, strictly speaking, necessary. In the ordinary course of construction regard should be had to other existing laws. The Charter forms part of the context in which a statute is to be construed. It will be recalled that Lord Hoffmann viewed the Convention in a similar way in Wilkinson. The process of construction commences with an essential examination of the context of the provisions being construed.
Where it is possible, consistently with a statute's purpose, s 32(1) requires that all statutory provisions are to be read conformably with Charter rights. Section 32(3)(a) acknowledges that this may not be possible in all cases, by providing that s 32(1) does not affect the validity of an Act or a provision of an Act which is incompatible with a human right. It cannot therefore be said that s 32(1) requires the language of a section to be strained to effect consistency with the Charter. When a provision cannot be construed consistently with the Charter, the provision stands. McGrath J's observations in Hansen, in connection with s 4 of the New Zealand Bill of Rights Act, are apposite to s 32(3)(a). They are that the effect of such a provision is that any inconsistent legislation prevails over a Bill of Rights document. Such a provision reaffirms the role of the legislature and makes clear that a court's role in ascertaining the meaning of the legislation remains one of interpretation."8 (Footnotes omitted)
[112]
[116] These observations were cited with approval by the Court of Appeal in Athwal v State of Queensland[2023] QCA 156 in the context of s 48 of the HR Act. 9
[117] The ordinary meaning of "assisted reproductive technology" includes the process of using drugs, the process of extracting any eggs produced and the process of freezing the eggs. There is nothing in the statutory purpose and context of the CS Act which indicates that some construction other than the above ordinary meaning is intended to be attributed to this phrase.
[118] To attribute a meaning to "assisted reproductive technology" that only starts at the point of a particular step in the overall process (namely at the point of conception) is to seek to rewrite the legislation in order to achieve a desired result. It departs from the ordinary meaning of the words used in the CS Act which are evident from the text, and consistent with the context and purpose of the CS Act. It does so by seeking to apply what I have found to be an arbitrary definition not otherwise open on the ordinary meaning of the words used.
[113]
[119] Having answered the question in the affirmative, and having rejected Ms Smith's construction of "assisted reproductive technology", s 22(2)(b) prohibits Ms Smith from applying for access to medical examinations and medical treatment for the extraction of eggs and the freezing of eggs. As a result, the decision of the Chief Executive was correct in law and the application should be dismissed.
[70] Thirdly, I accept Ms Smith's submission that caution must be shown in the use of dictionaries. I also note that the courts have counselled against the use of dictionaries when what is being construed is a composite expression.4 However, the phrase "assisted reproductive technology" is found in dictionaries as a discretely defined term.
[71] Dictionaries, at best, can be an aide to understanding the meaning of a word or specific phrase in a statute. Ms Smith was correct to identify that a fortress should
[77] Nonetheless, there are various parts of the tendered material which provide some support for the words having the ordinary meaning which I have attributed to them.
[78] The NHMRC Guidelines defines "assisted reproductive technology" to mean "the application of laboratory or clinical techniques to gametes and for embryos for the purposes of reproduction". That, again, is a broad definition. It is wide enough to cover clinical techniques for the extraction of female and male gametes for the purpose of reproduction.
[79] The width of such a definition is implicitly confirmed by the extraction and freezing processes being dealt with in portions of the NHMRC Guidelines (see, for example, paragraphs [4.1.3], [4.6.2], [4.6.4] and [8.20] (for a person who is dying but has capacity)). Each of these paragraphs are found in section B of the NHMRC Guidelines, which is headed "Ethical Guidelines for the Clinical Practice of ART".
[80] The Glossary defines "assisted reproductive technology" as:
[99] Having made this initial observation, I will move to the substantive submissions which were made, and I will consider if the enactment of the ART Act now makes the submissions relevant.
[100] I do not accept Ms Smith's submissions that clause 5(1) of the ART Bill explained what "assisted reproductive technology" was at its core, namely medical procedures. Ms Smith's submission was that the ART Bill did so by defining the concept of an "ART procedure" as "any medical treatment or other procedure that procures or attempts to procure, pregnancy in a person other than by sexual intercourse" and that conversely the ART Bill separately contemplated that "a related treatment or other procedure" might be prescribed by regulation so as to amount to an "ART procedure". It was submitted that this drafting strongly suggested that without declaration via a regulation, such "related treatments or procedures" were not "ART procedures".
[101] Ms Smith then pointed out that clause 5(3) of the ART Bill provided that a person who undergoes an ART procedure is the person who becomes or seeks to become pregnant as a result of the procedure. Her submission was it could not have been clearer that clause 5 defines what "assisted reproductive technology" was, in a way that was inconsistent with the "ordinary meaning" asserted by the Chief Executive.
[102] Ms Smith submitted that the ART Bill then created a separate and deliberately broader concept of an "ART service", which expressly included an ART procedure within its larger meaning. The definition of ART service also included in its meaning: