A majority of the Supreme Court of Western Australia, Court of Appeal, has held that the Family Court is a ‘person’ providing ‘services’ within the meaning of s 22 of the Sex Discrimination Act 1984 (Cth) (Sex Discrimination Act) when it considers whether or not to make a parentage order. Sections 19, 20(1) and 21(2)(a) of the Surrogacy Act 2008 (WA) (Surrogacy Act) are therefore inconsistent with s 22 of the Sex Discrimination Act to the extent they provide that a same-sex couple cannot apply for a parentage order as an ‘eligible couple’, and unconstitutional pursuant to s 109 of the Commonwealth Constitution (Constitution).
The legal characterisation of a court exercising State jurisdiction – pursuant to State legislation – as ‘a person’ bound by Federal anti-discrimination laws is no small step for lawyer-kind. The decision raises fundamental questions about the legal architecture within which parentage is assigned, transferred and recognised at State level and affords significant insight into the strengths and weaknesses of the State statutory schemes in light of Commonwealth anti-discrimination laws of general application.
The decision in Dunn does not directly challenge the idea that a court exercising determinative power over justiciable controversies cannot reasonably be said to provide a service to or for the benefit of the litigants before it. As Vaughn JA beautifully observed ‘judicial power is an aspect of the sovereign power of the state as a polity – a court is an incorporeal body established by law to exercise that judicial power of the state (either generally or subject to defined limits) through appointed decision-makers who act for the state’ [209]. Without contradicting that description of a court and its role, the majority was satisfied that a parentage order is ‘a permission or approval which will confer a benefit on an applicant as an individual’ and constitutes the provision of services for the purposes of the Sex Discrimination Act even though the decision rests with the Family Court [86].
Some context helps understand the distinction in the roles of the Family Court that was relied upon by the majority.
The Executive branch of government is responsible for determining parentage. In Western Australia parentage is primarily established by civil registration by the Registry of Births, Deaths and Marriages. Legislation determines who may be registered as a parent; the woman who gives birth to a child is presumed to be its mother, absent any claim or evidence to the contrary. The second default parent is determined by statutory presumptions including a husband, de facto partner, or consenting partner in assisted reproduction.
The Family Court has jurisdiction to make orders with respect to parental responsibility, in resolution of justiciable controversy and in the exercise of various discretions. It has limited jurisdiction in respect of the registration of birth; it can interpret the statutory presumptions, and resolve controversies about the legislation, including where errors have been made in reporting or registering a birth. Absent the Surrogacy Act, however, the Family Court has no jurisdiction to consider whether to transfer parentage from presumed parents to arranged parents. It can create de facto parents through parenting orders but cannot alter a birth certificate.
A birth certificate and parenting orders do different work. Citizenship, intestacy rights, cultural identity, and numerous legislative presumptions are all determined by reference to declared parentage, with the primary proof being a birth certificate. Internationally, a birth certificate is immediately recognised where parenting orders may be significantly less helpful in proving rights and responsibilities.
The Family Court’s jurisdiction to make parentage orders is both given and fettered by the Surrogacy Act, which imposes a distinctively administrative regime. The statutory criteria which must be met for the permission or approval granted by the parentage order are cumulative preconditions, not an open-ended discretion. The decision to make a parentage order is not evaluative in a broader sense. The Family Court is not permitted to decide what ‘parentage’ means but may only check that simple statutory criteria are met with a consequential grant of a statutory benefit, subject only to a rarely raised or exercised consideration of the rights of the child in question. Once understood as the application of a structured statutory eligibility framework, the public service aspect of parentage orders takes clear pre-eminence over judicial function.
One of the express preconditions to a parentage order is that either the arranged parents are an ‘eligible couple’ (the definition of which precludes same sex partners) or one of them is an ‘eligible person’ (which requires that one of them be ‘a woman’). To fetter the Family Court with consideration of whether that precondition has been met (with the inevitable outcome of dismissal if it has not) is to require the Family Court to act contrary to the principles of the Sex Discrimination Act. As the majority decision observed, ‘[u]nless one of the persons in a same-sex couple has sexual organs not generally associated with their sex, a same-sex couple, as a couple, will lack the sexual organs required to conceive a child together. This is not a material difference which can justify different treatment of those couples.’
The immediate effect of Dunn is that s 19(2) of the Surrogacy Act is inoperative for inconsistency with s 22 of the Sex Discrimination Act insofar as it applies to same sex couples. The Surrogacy Act is held to apply to same sex couples as though the words ‘of opposite sex’ and ‘due to medical reasons not excluded by subsection (3)’ were omitted from the definition of ‘eligible couple’ in s 19(2).
It is a finding that no doubt will be met by celebration in some corners and condemnation in others. An obvious question will be whether the limitation of ‘eligible person’ to ‘a woman’ would survive a similar challenge, or whether it would be caught by the exemption in s 31 of the Sex Discrimination Act. The emphasis on the character of the decision and the power to grant a benefit rather might yet make the principles applicable to violence restraining orders, where preconditions result in the provision of a proscribed benefit for a person protected (cf Budd v State of New South Wales (Attorney General’s Department) [2007] NSWADT 112 in respect of discretionary orders, including mediation).
The quiet entry of Federal discrimination principles through state statutory criteria design offers some interesting possibilities that will need to be explored. Values encoded in preconditions across all state legislation may be subject to fresh interrogation where they give rise to conferral of a benefit on completion with little or no genuine discretion or right of appeal.
