legal u4 aos 1 case studies

MCBAIN CASE

McBain v. State of Victoria (2000)

Facts

• s.8 of the Infertility Treatment Act 1995 (Vic) restricted IVF access to married women or women in a de factor relationship, excluding lesbian couples or single women. Dr John McBain challenged this law after being unable to provide IVF to a single woman.

Legal issue

Whether s.8 of the Infertility Treatment Act 995 (Vic) was inconsistent with s.22 of the Sex Discrimination Act 1984 (Cth)

• The inconsistency arose because the Cth law stated that it was unlawful to discriminate against in the provision of services on the basis of marital status, whilst the state law allowed IVF services to be denied to single women.

Decision

• The High Court ruled that the Victorian law was inconsistent with the Cth Sex Discrimination Act 1984 (Vic), thus under section 109, the Cth law prevailed.

• s.8 of the Infertility Treatment Act 1995 (Vic) was declared invalid to the extent of the inconsistency - IVF clinics could no longer deny treatment to single women

Impact

Confirmed that Cth law overrides inconsistent state law as per section 109, preventing discrimination based on marital status

TASMANIAN DAM CASE

Commonwealth v Tasmania (1983)

Facts

• The tasmanian govt proposed to construct a dam on the franklin river, being a world heritage site.

• The federal govt passed legislating prohibiting the construction of the dam, implementing the Cths obligations under a signed international treaty which sought to protect heritage sites (World Heritage Convention)

• World Heritage Properties Conservation Act 1983 (Cth)

Legal issue

• Tasmania challenged the World Heritage Properties Conservation Act 1983 (Cth), claiming the Cth did not have the specific powers in the constitution over the environemnt or electricity profduction and could not restrict the building of the dam

• The Cth argued that the ‘external affairs’ power (s.51 xxix) granted them power to make laws that involve matters covered by treaties regardless of whether they are in the constituion or not in order to uphold international obligations outlined in the act

Decision

• The high court ruled in favour of the Cth, interpreting ‘external affairs’ as being applicable to international treaties that Aus is signatory to thus having power to legislate to uphold its international obligations

Impact

• broadened the interpretation of ‘external affairs’ to provide the Cth with the power to legislate in any matter that is covered by an international treaty, even if it is in the area of residual power

• Cth was able to legislate in areas of residual power thus broadening their law-making abilities

• Further restricting states’ law making power to legislate in more local matters for the needs of their people

• Cth is not provided with free reign as they can only legislate to the extent that allows them to comply with international obligations

AGE OF CRIMINAL RESPONSIBILITY

Sources of pressure to change: UN

• 2019 → UN Committee on the Rights of the Child noted its serious concern regarding AOCR and called on it to act to ensure the age was set at an internationally accepted level

• 2021 → review showed that 31 countries recommended that Australia raise AOCR

Sources of pressure to change: Organisations and groups

• #RaiseTheAge Campaign is backed by hundreds of medical, legal and Indigenous organisation that aim to influence change to AOCR by lobbying politicians and running social media campaigns

Response to pressure

In April 2023, it was announced that by the end of 2024, children aged 10 and 11 will not be held criminally responsible for their actions in Victoria - and AOCR would be raised to 14 by 2027.