McBain v State of Victoria

The case of McBain v State of Victoria involved a challenge to section 8 of the Infertility Treatment Act 1995 (Vic), which limited the availability of infertility treatment to married women or those living in a de facto relationship. The applicant, a medical practitioner specialising in reproductive technology, sought a declaration that this provision was inconsistent with section 22 of the Sex Discrimination Act 1984 (Cth), which prohibits discrimination on the basis of marital status. The case raised the critical issue of whether section 8 of the State Act contravened the Commonwealth Act, making it inoperative to the extent of the inconsistency. The court had to determine whether the requirement of marital status for accessing treatment constituted direct discrimination against single women and those not in a de facto relationship.

The legal issue before the court was whether section 8 of the Infertility Treatment Act 1995 (Vic) was inoperative due to its inconsistency with section 22 of the Sex Discrimination Act 1984 (Cth). Section 8 of the State Act required that a woman must be married or in a de facto relationship to access treatment, which the applicant argued discriminated against single women. The Commonwealth Act, on the other hand, prohibits discrimination on the basis of marital status, including the refusal to provide services. The court needed to assess whether the State Act's requirement of marital status for treatment access directly contravened the Commonwealth Act and, if so, declare the provision inoperative to the extent of the inconsistency.

The court found that section 8 of the Infertility Treatment Act 1995 (Vic) was indeed inconsistent with section 22 of the Sex Discrimination Act 1984 (Cth). It held that the requirement for marital status to access treatment constituted direct discrimination against unmarried women and those not in a de facto relationship. The court noted that the sections were mutually exclusive and that it was impossible for the applicant to comply with both. As a result, section 8 was declared inoperative to the extent it restricted treatment availability to married women or those in a de facto relationship. Other sections of the Act that depended on the operation of section 8, such as section 10(1), were also declared inconsistent and inoperative to the extent of their dependency on section 8. The court concluded that the inconsistency was due to the State Act’s reliance on marital status, which directly contravened the Commonwealth Act’s prohibition on discrimination based on marital status.

The court declared that section 8(1) of the Infertility Treatment Act 1995 (Vic) was inconsistent with section 22 of the Sex Discrimination Act 1984 (Cth) and inoperative to the extent it restricted treatment availability to married women or those in a de facto relationship. Additionally, provisions such as section 10(1) were declared inconsistent and inoperative to the extent they depended on the inoperative section 8(1). This decision ensured that the State Act could no longer discriminate against single women and those not in a de facto relationship in accessing infertility treatment.