Module One 1: Introduction to

Foundations of Law
1.1 Overview: Introduction to the subject
Key Lesson Goals Lesson To Do
★ Have a general understanding about Overview of topics
what this subject covers in terms of Understanding assessments
content and legal skills. Legal analysis
★ Have a general understanding of the McBain v Victoria (2000) 99 FCR
assessment tasks you are required to 11
complete in this subject and when
they are due.
★ Know where to find the Subject
Outline and understand the
important content and information
that it provides.
★ Understand what is required of you
as a student and tips about how to do
well in this subject (for example, the
critical importance of preparation
and reading BEFORE attending
class).

1.2 Reading Notes

Connecting with Law 1-17.

Learning Law p1-17
ONE: Law as a discipline
● Law is an autonomous discipline
separate from religion, morality and
politics
○ One legal system applies to all
people regardless of who they
are- doesn't discriminate
● Lawyers resist on making direct
conclusions; instead they consider
● Law is not completely apolitical (not involved with
politics)
● Government instability can severely impact the legal
system and create laws by “might” rather than what is
right eg Myanmar’s military takeover coup
● Under developed nations (from conflict, poverty,
postcolonial consequences) may struggle with the
rule of law and may have harsh punishments eg South
Sudan’s executions
 relevant legislation and it’s
interpretation
● Environmental, political and social
circumstances of a country influence
law+legal systems
● Australia has a post-colonial influence;
hence have an English influence
TWO: Legal Reasoning
● Is methodical and can be used to in
judgements, to examine areas of law or
compare/contrast laws
● Issues identified from a factual matrix
Think like a lawyer
● Critical thinking, problem solving form
of an intellectual nexus (connection of
many things)
● Ethical and social dimensions of
professional responsibility
● Statutory and case analysis with broader
social, ethical and critically informed
approach
Strategies to Think Like a Lawyer
1. Non-assumptive thinking
- Resist jumping to conclusions or making
assumptions
2. Facts over emotions
- Detach from personal opinions and
personal notions of what is right and
wrong
- Facts are considered objectively and the
client’s case is assessed against the law
- Focus on strategy and outcomes instead
of feelings of justice/fair entitlements
3. Tolerance of ambiguity
- Being able to handle that there are no
black of white answers
- Answers depend on the question
- Advice cannot be given under absolute
confidence since laws can change
overtime
4. Ability to make connections between
facts, documents and laws
- Lawyers store surplus information in
their brain and use it later to connect to
● Cultural perspectives also shape practitioners
understanding/perspectives on the law
● Access to education impacts people’s access to
justice. Citizens must know their rights and the law
Legal Writing
● Legal writing should be a narrow, focussed, frill free,
and judicious process
● Should be no unsupportable presumptions
● ONLY facts + evidence
● No right conclusion and merit in arguing both sides
● Important to reach CLEAR conclusions
A Wider Lens
● Incorporate deeper understanding of legal system, its
origins, limits, boundaries and contradictions
● To develop a predictive ability in cases; how a court
will respond to your arguments
● Law is about studying the distribution of power in
society
● Conceptualise existing laws in an alternative.
Convincing way or recognise parallels in other cases
○ Question what you are learning
○ Look out for hidden
assumptions/contradictions
Hidden Values in our Law
❖ Anthropocentrism
➢ Human centred view of universe, superiority
complex and right to use
environment+everything to benefit mankind
❖ Individuality
➢ Humans as separate + autonomous
➢ Rather than interdependent members of
community
❖ Ownership
➢ Physical + non-physical aspects of the world
are commodities capable to being privately
owned to rightful exclusion to others
❖ Authority
➢ Perception that centralised authority is a
necessary, desirable or inevitable form of
social organisation
Inductive, Deductive and Analogical Reasoning
❖ Inductive: specific → general
➢ Identify patterns and similarities which enable
to create hypotheses and explore
➢ Outcome; broad generalisations/theories
➢ Minor premise→ major premise
■ Used in case analysis
■ Cases→broad law
 future cases
5. Verbal mapping and ordering
- Being able to structure thoughts and
opinions and express them orally in a
manner similar to structured essays
- No “stream of consciousness” approach
- Mental lists, diagrams, relationships
6. Automatic Devil's Advocacy
- No position is fixed, all are arguable
- Intellectual flexibility is requires to
critically think about both sides of an
argument
- Be open to challenges
THREE: Outcomes of your Legal
Education
● All law graduates must complete the
minimum requirements set by the
government and the professions
expectations via the
○ Threshold Learning Outcomes
(TLO)
○ Priestly 11
○ Graduate attributes
● Skills
○ Superior coms, negotiation, time
and priority management, critical
analysis, appreciation of cultural
and gender diversity,
international understanding,
managing ethical issues
➢ Explores specific instances to find unlimited
potential conclusions
❖ Deductive reasoning: general→ specific
➢ General theory creates hypothesis, which is
tested by specific observations
➢ Eg syllogism: logical argument where
conclusion is drawn from a major then minor
premise
➢ Less open than inductive
➢ Confirms a specific hypothesis
❖ Lawyers argue via analogy: current case is similar to
previous ones ie doctrine of precedent
➢ Linked to fairness and the Rule of Law
➢ The analogous case must have RELEVANCE
to be valid
Beyond Legal Reasoning
❖ Legal reasoning is incisive, methologiclal, critical
analytical and evidence based.
➢ Stays within the bounds of ethics and
professional conduct
Tip
❖ Try understand cases beyond just facts and theory.
Think about the actual people involved in the
scenario
➢ Think about their perspectives + empathise
➢ Weight up investment of time and money
Graduate Attributes
 Equal access to assisted reproductive services
The effect of McBain v Victoria
Context
1997: Victorian Infertility Treatment Act amended
● Reproductive services were limited to married heterosexual
couples
● When and who? 1997 three unmarried heterosexual couples
● Why? this limitation in the Human Rights And Equal
Opportunity Commission and succeeded in obtaining
damages for their exclusion from such services.
● Result: Victorian Infertility Treatment Act 1995 (the Victorian
Act) was amended
○ Allowing greater access reproductive services for
heterosexual couples in a de facto relationship
● Single & lesbian women still excluded
McBain v Victoria 2000
● Dr John McBain (Melbourne infertility practitioner) challenged
the validity of this exclusion
○ Federal Court case, McBain v Victoria
○ declaration that s.8(1) of the Victorian Act was
invalid because it was inconsistent with the SDA
● Treatment procedures included IVF and Donor insemination
○ Denied access to having children of their own
without a man (single/lesbian)
● McBain wished to provide IVF to Ms Lisa Meldrum→ single
woman
○ Underwent treatment interstate→ inconvenient +
reduced chance of conception
● 28/6/2000
○ Justice Sundberg declared that s.8(1) of the
Victorian Act was invalid,
○ dependent on ‘marriage requirements
○ = invalid under s.109 of the Constitution
■ Clash of jurisdiction: Commonwealth
trumps that state
■ Invites the Catholic church to come in and
be the “friend of the court” aniams curae
The Victorian Response
● Various other sections of The Victorian act that refer to a
woman’s husband in context of treatment eg Husband’s consent
Section 8(3a)
○ requires that a woman have a male partner in order
to be eligible for a treatment procedure
- Kristen L. Walker
Laws/Legislation
● amendment of the Infertility Treatment
Act(Vic.)
● Human Rights And Equal Opportunity
Commission
● australian human rights commission act
1986
1997: Section 8(1) of the Victorian Act
amended
● Procedures only provided to a women
who was married or in defacto
relationship
Commonwealth Sex Discrimination Act
1984 (SDA)
● prohibited discrimination on the basis
of marital status.
S8(3) (a) Victorian Act
● “ doctor must be satisfied, on
reasonable grounds… the woman is
unlikely to become pregnant from an
oocyte produced by her and sperm
produced by her husband.”
● CROC is Article 7, which provides
that a child shall have the right “as far
as possible, to know and be cared for
by his or her parents”
● Australian Human Rights Commission
(AHRC): an independent third party
which investigates complaints about
discrimination and human rights
breaches.
● The Equality Act 2010 legally protects
people from discrimination in the
workplace and in wider society
● Federal Court of Australia: The Court's
jurisdiction is broad, covering almost
all civil matters arising under
Australian federal law and some
summary and indictable criminal
matters.
● Sex Discrimination Act 1984 (SDA)
unlawful to discriminate against a
person because of their sex, gender
 Infertility: ‘clinical’ or ‘social’? identity, intersex status, sexual
● Infertility Treatment Authority (ITA) monitors compliances orientation, marital or relationship
relating to the victorian act status, family responsibilities, because
● Griffith’s view, this imposed a requirement that a woman they are pregnant or might become
seeking either IVF or DI be ‘clinically’ infertile pregnant or because they are
○ Flawed: reimposes, the discrimination on the basis breastfeeding.
of marital status ● Solicitor General: advises the Attorney
○ Must be married or defacto to be eligible for IVF General on civil and criminal matters,
○ draws a distinction between single women or including issues of constitutional law
lesbians who are ‘clinically’ infertile and those who
are ‘socially’ infertile
○ Forces single or lesbian females to find a male
sexual partner to have children
The relevance of donor insemination
● IVF=invasive procedure that involves significant hardship for
the woman involved→ unlikely that a ‘clinically’ fertile women
would like it
● Medically assisted DI = access to sperm from men who have
been tested for a variety of diseases, (eg hepatitis strains, HIV
and possibly genetic)
○ improve the chances of conception
○ More safe way to get pregnant for women with no
access to a sperm donor
● Victoria act denies safe access to sperm to ‘clinically’ fertile
single or lesbian woman
○ Engage in potentially risky conduct to get a child
○ Travel interstate
○ Child may not find the identity of the father
● potentially committing a criminal offence
○ engage in home insemination= up to 4 years jail
(under s.7 of the Victorian Act “only a licensed
medical practitioner”)
Commonwealth Response
● Political reaction to McBain decision =intense
○ Create a new generation of “stolen children”-
Archbishop Pell
○ Prime Minister announced gov would amend SDA
to allow States to discriminate single,
lesbian/defacto couples
■ Drafted a bill to remove out SDA in this
circumastance
● If legislation is passed by the Commonwealth Parliament=
Federal Court McBain case decision will be overturned
Arguments Justifying Discrimination
● Centred around the claim that “children have a right to be born
into a family consisting of a mother and a father”
○ Claim is violated by single/lesbian women with
access to reproductive services
 ● Counter argument: women have the right to choose whether to
have or not to have children and have the right to not face
discrimination against their sexuality or martial status
● CROC Article 7 provides that a child shall have the right “as far
as possible, to know and be cared for by his or her parents”
○ This statement does not require that a child be born
into a family consisting of a mother and a father.
○ Nor is this ratified into our domestic legislation,
hence have no legal affect
● Convention on the Elimination of All Forms of Discrimination
Against Women, which is implemented in the SDA
● A truly moral position on the best interests of the child would
focus not on a stereotyped view of who makes good or bad
parents, but on an actual consideration of the lives of the
individuals concerned.
● “what is important in a child’s life is not the family structure or
the sexuality of her parents, but the provision of love, affection
and caring”
Conclusion
● It criminalises doctors who inseminate ‘clinically’ fertile single
or lesbian women and it potentially criminalises women who
inseminate at home on the basis of protecting the children who
might thereby be conceived
● The Victorian Act and the federal government’s response to the
McBain case are based on inaccurate stereotypical notions that
single women and lesbians will not make good parents
○ Rather than considering particular circumstances
Extra information

Principles and Practices of Australian Law-

Jennifer Greaneey p1-5

What is Law? McBain Case

- Definition: ordering society
and resolving disputes. Also
a form of narrative story
Perspectives include:
❖ personal problem
❖ a political issue
❖ a legal matter
❖ a clash of values
“At their heart lies a paradox:
our law is separate from
politics yet inherently political,
❖ Lisa Mekdrum single Melbourian woman
❖ Desired to have child so went to gynaecologist Dr McBain
❖ Infertility Treatment Act 1995 (Vic) and, under s 8(1) of this Act,
a woman was only eligible for treatment if she was either married
or living in a de facto Relationship. would have been liable to a
penalty of 480 penalty units.
❖ argued that s 8(1) of the Infertility Treatment Act (vic) was
inconsistent with s 22 of the Sex Discrimination Act 1984 (Cth).
Under s 22 of the Commonwealth Act,
❖ The problem of inconsistent State and Commonwealth laws is
governed by s 109 of the Australian Constitution. 2 Section 109
provides that when a Commonwealth and a State law are
different from morality yet
broadly reflective of social
concerns, a constraint on
power yet an exercise of power,
concerned with fair procedures
yet often inaccessible and not
always just.”
Applying classifications to a real
dispute
inconsistent, the Commonwealth law prevails and the State law is
invalid to the extent of the inconsistency
Different Perspectives
❖ A story of individual problems and private lives
❖ A chronicle of conflicting values and social change
❖ A broader narrative about society
➢ Our own knowledge, experience and beliefs inform our
view of the events.
Political Perspective
❖ A political story about the kind of society we inhabit and the
values which prevail.
❖ The political response: Sex Discrimination Amendment Bill 2002
(Cth)
➢ enable States and Territories to limit assisted reproductive
technology services
➢ This Commonwealth’s response was designed to
perpetuate discrimination against single and lesbian
women
❖ Victoria has implemented legislation to remove this discrimination
regarding treatment
➢ these legislative changes exemplify a growing commitment
to removing discrimination based on relationship status
and sexual orientation
❖ Qld and WA still have fertility/surrogacy laws that discriminate
against single men/women and same sex couples
Legal Dispute perspective
❖ legal story→ involves the law and legal institutions:
❖ Dr McBain was precluded from treating Ms Meldrum because of
an Act of the Victorian Parliament and he challenged the relevant
law in proceedings in court.
➢ Parliaments+courts=institutional sources of law
➢ courts have a key role in interpreting the law and
resolving disputes.
Application of Classification to McBain Case
● The case is an example where Parliament is the principal
institutional source of law
● Example of public law→ since it concerns relationship between
state and commonwealth laws
○ S109 of the constitution
● Contradictions with private nature of having babies→ not prevent
interference by state
● Criminal/civil divide
○ offence Dr McBain would have committed had he
provided IVF treatment to a single woman in breach of s
8(1) of the Infertility Treatment Act 1995 (Vic) → criminal
offence
○ However breaching the SDA (cth) law → civil offence
○ Sex Discrimination Act 1984 (Cth)= hybrid nature of
 statutory provisions
● Illustrates how legal disputes may involve more than one area of
law
○ required interpretation of Commonwealth discrimination
legislation and the application of constitutional law
● Challenging existing laws require a cause that courts will accept
○ Ms Meldrum, for could not have applied to a court to
overturn s 8(1) of the Infertility Treatment Act on the basis
that she thought it was unfair in some unspecified way
○ Have to find a LEGAL basis for INVALIDITY
● it is the very idea of law as a separate, dispassionate, body of rules
that gives our legal system its legitimacy
○ Sundberg Judge interpreted and applied the RELAVANT
LAW to resolve the dispute→ not due to any personal
reasons