The 22 of the Sex Discrimination Act
The nature of law in Australian society is both complex and dynamic. The case of McBain v Victoria and the historical analysis of the legal response to Indigenous Australians in the 200 years following British colonization informs an understanding of the nature of law in Australian society, while also revealing characteristics of Australia’s constitutional framework.An understanding of the nature of law in Australian society is informed by the McBain v Victoria case, which illustrates the dual function of law as a chronicle of social narrative and personal stories and institutionally as an instrument for social order and dispute resolution.
In this case the concept that law operates in different ways at various levels’ shows that law is a fundamental aspect of daily of life in Australian society. It also suggests that law is intertwined with social conflict, changing values and political issues and that despite the legal ideal of autonomy law reflects these values and is also influenced by them.In McBain v Victoria, the unmarried Ms Meldrum sought access to IVF technology treatment from Dr McBain. However, McBain was precluded from treating Meldrum due to legal regulations located in s 8(1) of the Infertility Treatment Act 1995 (Vic) (State Act), which was exclusive in permitting treatment of only married women or women living in genuine de facto relationships. The exclusion of unmarried and lesbian women prescribed by the State Act reflects the perceived societal value of the nuclear family unit, consisting of two parents, a male and a female parent. In addition to the stipulations regarding permissible treatment procedures, McBain was further restricted by s 22 of the Sex Discrimination Act 1984 (Cth) (Commonwealth Act).
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This pertains that for McBain, as a service provider to deny services on the basis of marital status was unlawful. It was unlawful for McBain to adhere to either law as they contradicted one another. This is evidence of inconsistency between state and commonwealth legislation. In response to the direct inconsistency between legislation, s 109 of the constitution provided that Commonwealth law prevails and the State law is invalid to the extent of the inconsistency’ . In this example of public law where there was concern with the relationship between State and federal legislation’ , the state law was declared invalid as it was not consistent with the Commonwealth Act. Due to the nature of Australia’s common law system, it was necessary for the parliament to make appropriate amendments to the State Act for it to be concurrent with the Commonwealth Act.
This reveals one of the functions of parliament as a source of law and is also suggestive of the political nature of law. McBain and Meldrum’s wish to utilise reproductive technology and the State Act’s interference depicts the transformation of contested social values into a legal dispute’. It illuminates the focus on legal procedure and institution to validate the standing of a legal dispute.