BY MARGARET ALLUM
Dennis Shanahan, the Australian newspaper's political editor, wrote on the front page of the August 2 edition that John Howard's announcement that he will introduce amendments to the Sex Discrimination Act to allow discrimination against single women and lesbian couples seeking to access IVF treatment was the PM's way of getting back into the headlines after a few days of being upstaged by the ALP's national conference in Hobart. Amongst others, Michelle Grattan of the Sydney Morning Herald (August 3) agreed: It's hard to believe that the timing wasn't influenced by the desire to create trouble in the Labor ranks when ALP luminaries are gathered in Hobart.
In fact, Howard's leap into action had as much, if not more, to do with his ceaseless ideological campaign to erode the rights of women and prop up the Christian concept of the natural (i.e., nuclear) family form.
The ruling
On July 28,
the Federal Court ruled in favour of a single woman and her doctor who
challenged section 8 (1) of Victoria's Infertility Treatment Act 1995 which
states that to be eligible for infertility treatment, a woman must be either
married to and living with a man on a genuine domestic basis or living
with a man in a defacto relationship. The Federal Court ruling was possible
because of section 22 of the federal Sex Discrimination Act (SDA) 1984,
which makes it unlawful for a person to refuse to provide services to another
person on the basis of their marital status.
The judgement said that the requirements of the Victorian act are inconsistent with those of the SDA, and that Australia's constitution mandates that where a state act is inconsistent with a commonwealth act, the state act is invalid to the extent of the inconsistency.
The SDA puts into effect the principles outlined in the United Nations Convention on the Elimination of all forms of Discrimination against Women (CEDAW), to which Australia is a signatory. The Catholic Church submitted to the court that other human rights declarations and treaties, especially those relating to children's rights, have primacy over the CEDAW. However, the Federal Court ruled that these treaties are to be exercised without discrimination on race, colour, sex or any other basis.
The ruling also pointed out that the Declaration of the Political Rights of the Child states that a child shall, wherever possible, grow up in the care and under the responsibility of his parents [italics added].
The Catholic Church submitted that there is an obvious public interest in a child knowing its parents and having one parent of each sex. For many people, this isn't obvious at all, nor is it necessarily in the public interest.
Anti-discrimination commissioner Susan Halliday said on August 2: Anti-discrimination legislation must respect the values and dignity of all Australians, without imposing a moral judgement on one group or another. Many people have contacted me supporting the [Federal Court] ruling and Victorian women's right to access these services.
Conservative Labor
The response from the ALP opposition has been ambiguous. Federal health spokesperson Jenny Macklin argued that the main issue was whether or not a child is wanted, not the structure of the family unit. However, all the comments from other ALP leaders on this issue either contained an explicit pro-nuclear family sentiment or supported Howard's position. Victorian Premier Steve Bracks, for example, unequivocally supports the access restrictions contained in the Victorian law and is exploring how to use state legislation to uphold the ban.When asked in June about reproductive technology and adoption access for gays and lesbians, Bracks said it was not our policy, even though his party had previously promised to foster public debate on the issue. He told the June 22 Age: Whether the Law Reform Commission recommends it or not, it won't be implemented under this government.
ALP leader Kim Beazley's first statement on the issue betrayed his acceptance of traditional family values. It is always better for kids to be brought up by Mum and Dad ... Unfortunately for huge numbers of children in our society, that is not the case, he said on August 2.
Beazley said later that it would be up to the ALP caucus to decide the party position on this complex and sensitive matter, but that he personally oppose[d] John Howard's proposition. The Sydney Morning Herald reported that Labor's social conservative wing has began mustering the numbers to demand a conscience vote when federal MPs meet as the caucus on August 8.
Predictably, the self-appointed upholders of our moral fortitude, such as Tasmania's Senator Brian Harradine and Danny Casey, president of the Australian Family Association, applauded Howard. Casey said that the PM's stand protected the rights of couples raising children. He added, Children are not a commodity that can be manufactured on demand, thereby revealing his opposition to all reproductive technologies.
Perhaps they were also alarmed by the June 27 Sydney Morning Herald report that the limit on Medicare benefits for IVF treatment will be removed from November 1. At present, Medicare covers only the first six treatment cycles.
Testing the water
The August 3 Sydney Morning Herald editorial correctly pointed out that Howard is implicitly arguing that states should deny access to fertility treatment to women who choose from the outset to bring up children in fatherless families. The punitive logic is that if you won't or can't find a man, you should forget about having kids. Those who end up with fatherless families subsequently, because of misfortune, bad judgement or second thoughts, are in a different category.The editorial also challenged Howard's much repeated view that a child has a right to expect to have a married father and mother. It said: In the real world, babies don't have expectations, they have experiences. There are many children who are happier and safer when inadequate or brutal fathers leave home. There is no empirical evidence that lesbian parents are less competent or loving than heterosexual ones.
Whether or not it proceeds or succeeds, Howard's challenge to the Federal Court ruling is another testing of the water of public opinion by the conservatives. Howard and Co. need to know how much and how quickly they can roll back the gains made by the women's liberation and gay and lesbian rights movements during the 1960s, '70s and early '80s.
This federal government has already gotten away with weakening the Affirmative Action (Equal Opportunity for Women) Act and restructuring the Human Rights and Equal Opportunity Commission to reduce its effectiveness. Howard's proposed amendment to the SDA would further dilute federal human rights law.
This new attack on the SDA is part of a conscious process of whittling away all laws which, although they don't in themselves guarantee equal rights for women, are essential tools in the fight for progressive reforms and for that reason must be uncompromisingly defended.