Alternative Law Journal
On I8 April, the High Court decided Re McBain; Ex P Australian Catholic Bishops Conference  HCA I6. The Catholic Bishops had sought to have the High Court quash the decision of Federal Court Justice Sundberg in McBain v Vic (2000) 99 FCR II6 concerning access to infertility treatment services in Victoria. The High Court unanimously rejected the application by the Bishops.
In July 2000, Sundberg J decided that Victoria's Infertility Treatment Act 1995 was invalid because it was inconsistent with the Sex Discrimination Act 1984 (Cth). Section 8 of the Infertility Treatment Act said that only women who were either married or living with a man in a heterosexual de facto relation ship were allowed to undergo infertility treatment. Sundberg J held that this was marital status discrimination which is prohibited under the Sex Discrimination Act. Consequently, s.8 was invalid to the extent of the inconsistency.
The Catholic Bishops argued that Sundberg J's decision was wrong in law and that the Victorian Act and the Sex Discrimination Act were not inconsistent. They had not sought to be a party to the original case. The Federal Attorney-General Daryl Williams, who also had not been a party to the original case, granted a fiat for the Bishops to seek an order overturning the decision of Sundberg J in the High Court. The Bishops also argued that they had standing to do this independently.
The High Court unanimously rejected the case of the Catholic Bishops on procedural grounds. A majority of the Court found that there was no 'matter' to consider and so the High Court did not have jurisdiction. In any event, the Court refused to exercise its discretion to overturn the decision. The High Court decision was primarily because the case had been decided fully in the Federal Court and neither party had appealed, while many doctors and women may have relied on the result since Sundberg J's original decision.
The High Court case is a victory for equality, but the battle for equal access to fertility services is not over yet! Some single women and lesbians can now receive infertility treatment in Victoria. However, the Infertility Treat ment Authority still applies a discriminatory interpretation to the Victorian Act, stating that clinics can only pro vide services to lesbians and single women who are 'clinically infertile'. This requirement is not in the legislation and it does not have to be satisfied for women in married or de facto heterosexual relationships (who may be 'socially infertile'). Lesbians and sin gle women who are simply seeking access to safe, tested sperm (from anonymous or directed donors) via donor insemination services still cannot get this service in Victoria and must travel interstate. Victoria lags behind New South Wales, West Australia, South Australia and the ACT in allowing equal access to infertility treatment services.
At the federal level, the Attorney General has announced that the government will introduce amendments to wind back the Sex Discrimination Act so as to allow State laws to discriminate in respect of infertility treatment. The Labor Party and the Democrats and Greens have said they will oppose this amendment when it is introduced.
In the aftermath of the judgment of the Full Court of the Federal Court of Australia in the Tampa case (Ruddock v Vadarlis (200 I) I83 ALR I) and in the midst of the 200I federal election campaign, federal Attorney-General Daryl Williams took the unusual step of calling ABC talk-back radio. Daryl Williams' purpose was an attempt to justify and quell speculation about the Commonwealth's actions in seeking an order for costs against the ultimately unsuccessful applicants in the case, the Victorian Council for Civil Liberties (Liberty Victoria) and Mr Vadarlis.
On radio, the proposition was put to the Attorney-General that the Commonwealth's decision to seek to recover its (no doubt substantial) costs from the applicants would act as a positive disincentive to the bringing of public interest litigation by lawyers and publicly minded organisations. The Attorney responded, '[W]ell that regrettably might be a consequence, but this is a very special case' (ABC Radio Melbourne, transcript of interview between Jon Faine and the Hon Daryl Williams, 23 October 200I).
The Attorney continued in the interview:
The ordinary rule in relation to litigation is that a party who loses the case pays the costs of the successful party ... If you have a look at the case, you'll see that what the applicants were seeking to do was to promote the actions of the so-called asylum seekers in making an unlawful entry into Australia. They were also seeking to assist the captain of the Tampa who had, while outside Australian territorial waters, been instructed by the Government not to enter, to actually do that. So what the applicants were basically doing from a government perspective, [was] promoting unlawful activity. [emphasis added]
In the eyes of the Attorney and the government, this is perhaps the crux of what made the Tampa case and the roles of the applicants in bringing the claims to court so special. The Commonwealth argued that the applicants had interfered with its executive power; the sub-text being that this made the proceedings contrary to the public interest and the applicants deserving of an order for costs.
However, the Full Court of the Federal Court saw things differently. On 2I December 200I, the Court (by a 2:I majority) dismissed the Common wealth's application that the applicants pay the Commonwealth's costs at first instance and on appeal (Ruddock v Vadar/is [200I] FCA I865).
The background to the case is well known. On 31 August 2001, Liberty Victoria and Mr Vadarlis commenced proceedings seeking orders in the nature of habeas corpus and mandamus to compel the release and delivery into Australia of the 433 asylum seekers detained by the Commonwealth on the Norwegian vessel, MV Tampa. The applicants were initially successful, but lost on appeal before Black CJ (dissenting), Beaumont and French 11.
The Full Court's decision on costs in the Tampa case throws further light on the costs implications of pro bono litigation, most recently considered by the High Court in Oshlack v Richmond River Council  HCA 11; (1998) 193 CLR 72.
In a majority joint judgment, Black CJ and French J held that the question of whether proceedings were brought in the public interest does not detract from the general proposition that 'ordinarily costs follow the event and that the primary factor in deciding on the award of costs is the outcome of the litigation' (p.l8) However, they noted that the general proposition is qualified by Milne v Attorney-General (Tas)  HCA 48; (1956) 95 CLR 460, where the High Court held that 'good reason' may be shown as to why the general proposition should not be followed.
In dismissing the Commonwealth's application for costs, the majority identified particular features of the Tampa case that 'point powerfully' against following the 'usual rule'. Those features included (at p.28):
• the novel and important questions of law raised by the case concerning the alleged deprivation of the liberty of the individual, the executive power of the Commonwealth, the operation of the Migration Act 1958 (Cth) and Australia's obligations under international law;
• the divided judicial opinion on the issues;
• the fact that the Commonwealth Parliament had subsequently passed laws purporting to exclude the rights of the applicants or any other person to pursue the matter further;
• the fact that the Commonwealth Parliament had also legislated to establish, as a proposition of statute law, in accordance with the view of the majority in the Full Court on the appeal, that the Migration Act does not prevent the exercise of the executive power of the Commonwealth to protect Australia's borders, including, where necessary, by ejecting persons who have crossed those borders;
• the lack of any financial gain to the applicants in bringing the claims; and
• the fact that the legal representation for the applicants was provided free of charge ensuring that the case was resolved with expedition and efficiency.
Beaumont J (dissenting) reasoned that there were no facts connected with the litigation such as to constitute 'good reason' for not following the general proposition. In relation to the argument raised by the applicants that they had been represented by lawyers acting pro bono, he drew an analogy between pro bono work and legal aid, and found the fact that the applicants were represented for free 'cannot bear upon the specific question of allocation of costs' (p.71).
The majority of the Court did not specify a general rule as to when good reason is shown not to award costs against the unsuccessful party in matters brought to court in the public inter est. Therefore uncertainty remains for those involved in such litigation. But the law develops incrementally. Just as the Attorney had described the Tampa case as 'very special', the majority found it 'most unusual', but for different reasons (p.29):
It involved matters of high public importance and raised questions concerning the liberty of individuals who were un able to take action on their own behalf to determine their rights. There was substantial public and, indeed, international controversy about the Commonwealth's actions. The proceedings provided a forum in which the legal authority of the Commonwealth to act as it did with re spect to the rescued people was, and was seen to be, fully considered by the Court and ultimately, albeit by a majority, found to exist.
The majority concluded that the case was clearly distinguishable from the predominantly environmental litigation in which many of the previous decisions concerning the impact of public interest considerations on costs have been made. Given the particular character of the case and its circum stances, no order as to costs was made against the applicants.
Finally, what of the Common wealth's argument (and the one emphasised by the Attorney) that the litigation was an interference with an exercise of executive power and there fore was not a matter of public interest? As a conclusion to its decision, the majority unequivocally dismissed this argument (p.30):
The proposition begs the question that the proceedings raised. That question concerned the extent of executive power and whether there was a restraint on the liberty of individuals which was authorised by the power. It is not an interference with the exercise of executive power to determine whether it exists in relation to the subject matter to which it is applied and whether what is done is within its scope.
If there was ever any doubt, the judgment of the Full Court in relation to costs vindicates the actions of the applicants in bringing the Tampa case to court in the public interest.
Samantha Burchell and Emma Hunt are Co-Executive Directors of the Public Interest Law Clearing House (PILCH).
PILCH co-ordinated the legal team that acted on behalf of Liberty Victoria in representing the interests of the asylum seekers aboard the MV Tampa in the proceedings in the Federal Court.
In December 2001 this column reported that the NSW government intended amending the NSW Anti-Discrimination Act to remove the protection of the Act for people discriminated against in employment if they are 'addicted' to a prohibited substance. A Bill to that effect has been passed with some amendments, and is awaiting assent.
With expert advice from disability and human rights NGOs, the NSW Greens in the upper house moved amendments to limit the effect of the government's amendment to the Act. None was adopted. The opposition then voted with the government to allow discrimination against a person in the workplace on the ground of disability if the disability relates to addiction to a prohibited drug and the person is actually addicted. There are exceptions for people with Hepatitis C or HIV infection or other medical conditions.
The practical result is that people with addiction to prohibited drugs are not given protection against discrimination in the workplace based on their addiction. People who have a disability arising from their addiction are similarly unprotected. Arguably this extends to people with a range of disabilities that could be said to be connected to their addiction including mental illness, brain injury, physical disabilities.
People who have not used drugs for several years but could still be medically defined as 'addicted' can be discriminated against. So too can people who are no longer considered addicted but who have a disability which relates to their previous addiction even if their addiction ended many years ago.
In giving protection against disability discrimination, the NSW Anti Discrimination Act will now distin guish between people to be protected based on the cause of their disability.
Michelle Hannon is a Sydney lawyer.
The Queensland Parliament has just legislated to extend Sunday trading to most of South East Queensland, over riding a decision of the State Industrial Relations Commission (IRC).
Decisions on Sunday and night trading are intended to be taken by the IRC. The reasons are obvious. An umpire, at arm's length from government, is needed to hear arguments about competing values and interests, and come to a decision that would be independent of any government beholden to a sectional or geographical interest. Before the legislative change, the only exceptions to this rule were so-called 'exempt' shops, such as newsagents and hardware stores, which if listed by Parliament in the Trading (Allowable Hours) Act 1990, could open all hours.
The pressure to keep extending shop hours has been relentless. It has essentially been driven by large-scale retailers. The unions have typically been caught between the interests of casuals, who will take any work they can get, and permanent staff with family responsibilities who want regular, sociable hours. Meanwhile, small business, community and religious voices, resistant to 24-hour, 7-day a week shop ping, have been ignored in assumptions about the desirability of constant consumerism in a bustling, market oriented world.
On the eve of Christmas last year, the IRC handed down a decision which allowed all stores to open from 10 am to
5 pm on Sundays. But it was limited to the City of Brisbane. The Retailers Association of Queensland had demanded open slather for the entire 'near Metropolitan zone'.
Unsurprisingly, some commercial players in nearby cities such as Logan, Ipswich and Redcliffe objected. They did so under the guise of claiming that the 'public interest' in their area was undermined. In reality, they were complaining about possible lost revenue. In less than two months, the government has capitulated to their demands.
With a stroke of the legislative pen, it has overturned the IRC's ruling. Sunday trading has not just been extended to the entire 'South East Queensland zone', but the hours were expanded to 9 am to 6 pm, including most public holidays.
For the bulk of Queenslanders, the government has now gutted the IRC's role as trading hours umpire, and collapsed the carefully crafted legislative distinction between exempt and non-exempt shops. It may as well have repealed the Trading Hours Act.
The amending Bill was rushed through after consultation with just five groups, four of which were retailer representatives. The lessons are clear. Trade comes before all else. The Protestant work ethic governs so that the only fun that matters is the fun of round the clock shopping. And tourists don't come to Queensland to relax in a pleasant natural environment, but to spend their Sundays filling up their credit cards!
There is an anecdote that, once upon a time when hardware stores but not bookstores were allowed to trade out of hours, a canny bookseller offered single nails for sale, with a book of choice thrown in for free. Apocryphal or not, it says something about how Justice Holmes' fabled 'Bad Man' sees law as a formalist game. But better a formalist compromise than legislative decree?
A review of 'child protection' is to be undertaken in South Australia. The review is to be chaired by Robyn Layton QC. The review seems wide ranging and will include consideration of 'legislation, policies, practices, and procedures of government and its funded services and assessment of their effectiveness; early intervention and prevention strategies; services provided to those involved in protection; adequacy of the criminal law and police procedures; strategies, systems and legislation for improving protection'. A discussion paper will be provided to those who register their interest in 'providing information' to the review before 6 May 2002
It seems that the review is in part driven by recent events with respect to churches and child abuse and of course issues of child abuse arising from the detention of children in Woomera. How much the review will concern itself with definitions of abuse-most of the recent debates seem to assume 'abuse' is able to be clearly defined - and broader strategies for the promotion of children's rights, such as the creation of a Children's Commissioner, remain to be seen.
The constitutional issues surrounding children's rights might also be relevant as we are now in a State where at least some professionals have identified children in detention in Woomera as suffering from child abuse but the federal authorities disagree. In different circumstances, would not some be expecting the children's removal from possibly abusive situations? This review has the potential to go far beyond matters of child protection to address how we construct matters affecting children in this country.
Law and order (again)
Just like the budget 'black hole' found after the election of a new government it seems another obligatory step of incoming administrations is to show how tough they will be on crime. You will be pleased to know that South Australia has not escaped either cliche. The Premier has announced new laws to establish guidelines for the sentencing of 'convicted criminals' (as it was reported in the Sunday Mail on 14 April 2002 -I always assumed the conviction was usually required before sentencing) and higher penalties for arsonists, promised to be the 'toughest' in Australia.
Perhaps the newly formed social inclusion unit established by the new government will evaluate the extent to which 'tough on crime' policies marginalise certain sections of the community - but don't hold your breath. Assessment of the effectiveness of legislation gets in the way of good politics (or is that bad?). • BS
While the rest of Australia was examining the moral issues surrounding the Governor-General and the role of the Anglican church in addressing abuse by its clergy, footy-mad Victoria was obsessing over another moral question. Did the North Melbourne Kangaroos star Wayne Carey do the right thing when he quit the team following his affair with a teammate's wife? The story was given many tabloid pages, sidelining both the GG and the children- overboard stories on one day. Simon Crean, Labor leader and the Kangaroos' number 1 ticket holder, summed up the moral lesson during a JJJ interview: it shows how serious it is to cheat on a mate. 'You pay a big price if you breach that trust, and here you've got a person who had his mate, a groomsman at his wedding, and cheated on him' (Age, 29/3/02). A school student questioner on the JJJ program wondered whether there might perhaps be an issue here about cheating on your wife too.
And most recently, Melbourne was the venue for a Family Court decision to extend contact of a sperm donor to his child born to a lesbian couple. The 'homosexual sperm donor' as the applicant was delicately described in the media, knew the lesbian couple and had agreed to provide the sperm for artificial insemination. After the child (a son) was born the couple sought to minimise the donor's contact. The Family Court supported the sperm donor's claim to fortnightly contact with his son. One might ask whether, had the couple been heterosexual, the sperm donor would have had such contact rights. • BN
30 years of law reform in WA
This year marks the 30th anniversary of the establishment of the Law Reform Commission of Western Australia and given that government-funded law reform bodies have been threatened with closure elsewhere, the occasion should not go without notice. From a body that originally featured full-time research staff and, on occasion, full-time Commissioners, the LRCWA has recently been restructured (and its staff radically reduced) so that it can engage the services of independent consultants who have demonstrated expertise in the area that it is investigating at a given time. The Commission retains three part-time Commissioners, one each from the legal profession, the Crown Law Department and legal academia.
The LRCWA has published a special report to celebrate the 30th anniversary. The report individually examines each of the 92 references given to the Com mission since its inception, setting each into its historical (and sometimes political) context. The report also details the level of public and professional consultation on each reference, shows the legislative response to the Commission's recommendations and assesses the cur rent relevance of non-implemented recommendations. It also includes the candid reflections of past Chairs of the Commission who include Federal Attorney-General Daryl Williams, WA Chief Justice David Malcolm, Moira Rayner, Professor Richard Harding, and Wayne Martin QC. The report makes fascinating reading for anyone interested in the ins-and-outs of law reform and shows the value of the contribution of law reform bodies.
Long Live Law Reform! • TH
DownUnderAl!Over was compiled by Alt.LJ committee members, Bronwyn Naylor, Graeme Orr, Tatum Hands, Brian Simpson and Miranda Stewart together with invited writers listed under their items above.