The McBain Case
1. From McBain’s perspective, the Victorian lawthat stated that a woman had to be married or ina de facto relationship to access IVF treatment was inconsistent with the Commonwealth legislation that made it unlawful to deny a person a service such as IVF treatment on thebasis of their marital status.As a doctor, if he denieda woman treatment because she was not in a de facto relationship or marriage he was obeying the Victorian law but breaking the Commonwealth law; if he gave a woman IVF treatment even though she was not married or in a de facto relationship he wasobeying the Commonwealth law but breaking the Victorian one.
2. The Commonwealth law overlapped with the Victorian law and formed a concurrent area because both matters related to who could access IVF treatment.
3. The Federal Court found an inconsistency between the laws and applied the agreed meaning of section 109 to the McBain case. The court determined that the Commonwealth law had to prevail and the section of the Victorian law that limited IVF treatment based onmarital status was invalid. Dr McBain’s patient, a single woman, was therefore entitled to receive IVF treatment and Dr McBain was entitled to disregard the now-invalid sections of state law that forbade him from providing it.