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Sex in the State

This version 5 July 2003, originally written in August 2000

The hoohoorah over Prime Minister Howard's stance on IVF and the Sex Discrimination Act constitutes an amusing illustration of laws at cross-purposes, and of media misunderstanding (if we're feeling kind) or misrepresentation (if we're feeling otherwise).

Consider the facts. The Federal Court of Australia has found a Victorian law, which prohibits IVF services to women not in a married or de facto relationship with a man, to be contrary to the Commonwealth's Sex Discrimination Act. So it ruled the Victorian law invalid. Mr Howard has indicated that he agrees with the substance of the invalid Victorian law, and will seek to provide an exemption to the Sex Discrimination Act so that State laws can operate.

Now how has this been represented? Repeatedly the electronic media's news reports claim that Mr Howard will be outlawing IVF for single women and lesbians. Huh? He will be doing nothing of the sort. He will simply be allowing the States to legislate in this area without running afoul of Commonwealth legislation. The passing of Mr Howard's amendments (which appears to be unlikely due to the requirement for passage through a Democrat/Labor controlled Senate) will restore the situation to what it was thought to be prior to the Court's decision. Victorian women who fail to meet the Victorian legislation's requirements and who are sufficiently intent on obtaining IVF treatment will have to travel five hundred kilometres up the road to the Labor-run, yet liberal in this regard, State of New South Wales.

Senator Brian Harridine would prefer to do that of which Mr Howard has been accused: outlaw IVF outside of holy or de facto matrimony (perhaps even the latter as well). He claims that this would be legally possible, using the Commonwealth's external affairs power under the Constitution. How, I wonder, do those who opened the legal floodgates to the use of this power in the early 80s' Franklin Dam case feel now? Centralisation of power always seems like a fine idea ... so long as you continue to control it. But once the range of power has been broadened, your successors, your opponents, also gain its benefit. Happily Mr Howard is refraining from attempting to impose his own opinions on the whole nation.

This strange situation has raised a set of tensions between several apparent goods.

The Victorian government's former restrictions on IVF are just one of many gratuitous interferences by governments into individuals' personal spheres. In this case, the State government has fingered certain categories of would-be mothers as unsuitable, inadequate for a role filled by billions over many millenia in far worse circumstances. If IVF is inappropriate for, say, single women, then ought not the next step be the prohibition of conventional conceptions amongst them?

And surely there are traditional families who are ill-equipped to give their child all the love, care and help in this world that all children deserve? Thus begins the slippery slope of government intervention into personal affairs.

So a strong case appears, at first glance, to be made for a wiser, more moral, Australian government to step in and bring the State to heel. This is what the Court has determined the Sex Discrimination Act to achieve, and what Mr Howard proposes to reverse. Now let us look into this a little more deeply.

Can we be certain that the Australian Government will always be wiser, be more moral, than a State government? Would a strong Labor supporter who lives in New South Wales want the Howard Government to impose its will on the Carr Government? Would a strong Liberal supporter in Western Australia want Premier Court brought to heel by a future Beazley government?

In the past quarter century there has been a marked swing in social policy back towards what some would call "traditional values" and others would call "harkening back to the restrictions of the 50s". Has the social policy pendulum yet ceased its swing? Or could it continue, to encompass Senator Harridine's appeal for prohibitions on IVF for his disapproved-of groups? Or go even further?

The opportunity is there for the Federal government to find some obscure foreign treaty as a paper-thin invocation of its external affairs powers in aid of pretty near any decision it wants to take. Those that call for the Commonwealth to override State laws that they don't like should remember that the powers on which they rely could well be turned against them to override State laws they do like. It all depends on the Federal government of the day.

What difference does it make if something is prohibited by the Commonwealth, rather than a State? Simple. It is far easier to escape an authoritarian regime in Victoria to a looser system in New South Wales, than it is to find another nation to which to emigrate.

© 2000 - Stephen Dawson