Class 11.Identifying the nature of the legal problemCASE STUDYMcBain v Victoria(2000) 99 FCR 116Lisa Meldrum was a single woman living in Melbourne. She wanted tohave a child. In August 1999, she sought the assistance of Dr McBain, agynaecologist specialising in reproductive technology and in vitro fertilisation(IVF) techniques. The relevant treatment would have involved the removal ofan ovum from Ms Meldrum, its fertilisation in vitro with donor sperm, andplacement of the resulting embryo in Ms Meldrum's womb. Although DrMcBain decided that IVF treatment was appropriate for Ms Meldrum, headvised her that he could not carry out the procedures in her particular case.The relevant treatment was regulated by the Infertility Treatment Act 1995(Vic) and, under s 8(1) of this Act, a woman was only eligible for treatment ifshe was either married or living in a de facto relationship. If Dr McBain hadprovided IVF treatment to a single woman in breach of this requirement, hewould have been liable to a penalty of 480 penalty units. Dr McBain decidedto challenge the Victorian law in the Federal Court of Australia. His lawyersargued that s 8(1) of the Infertility Treatment Act was inconsistent with s 22of the Sex Discrimination Act 1984 (Cth). Under s 22 of the CommonwealthAct, it is unlawful for a person who provides goods or services, or makesfacilities available, to discriminate against another person on the ground of,inter alia, the other person's marital status. In deciding that s 8 of theVictorian Act was directly inconsistent with s 22 of the Commonwealth Act,Sundberg J stated:Section 8 of the State Act provides that a woman's marital status, namelyher status as a married woman or one living in a de facto relationship, is anessential requirement for the availability of a treatment procedure. Section22 of the Commonwealth Act makes it unlawful for a person to refuse toprovide services to another on the ground of the latter's marital status. Thatis what's 8 requires a provider of infertility treatment to do. It requires theapplicant to treat Ms Meldrum less favourably than a married woman or onein a de facto relationship. It is not possible for the applicant to obey both s 8and s 22.¹The problem of inconsistent State and Commonwealth laws is governed bys 109 of the Australian Constitution. Section 109 provides that when aCommonwealth and a State law are inconsistent, the Commonwealth lawprevails and the State law is invalid to the extent of the inconsistency.Applying this law to the facts before him, Sundberg J declared that:... s 8(1) of the State Act, to the extent to which it restricts the availabilityof any treatment procedure regulated by it to a woman who is married and
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