Nature And Foundations Of Australian Law

The nature of law in Australian society is both complex and dynamic. The case of McBain v Victoria and the historical analysis of the legal response to Indigenous Australians in the 200 years following British colonization informs an understanding of the nature of law in Australian society, while also revealing characteristics of Australia's constitutional framework.

An understanding of the nature of law in Australian society is informed by the McBain v Victoria case, which illustrates the dual function of law as a chronicle of social narrative and personal stories and institutionally as an instrument for social order and dispute resolution. In this case the concept that law operates in Ð''different ways at various levels' shows that law is a fundamental aspect of daily of life in Australian society. It also suggests that law is intertwined with social conflict, changing values and political issues and that despite the legal ideal of autonomy law reflects these values and is also influenced by them.

In McBain v Victoria, the unmarried Ms Meldrum sought access to IVF technology treatment from Dr McBain. However, McBain was precluded from treating Meldrum due to legal regulations located in s 8(1) of the Infertility Treatment Act 1995 (Vic) (State Act), which was exclusive in permitting treatment of only married women or women living in genuine de facto relationships. The exclusion of unmarried and lesbian women prescribed by the State Act reflects the perceived societal value of the nuclear family unit, consisting of two parents, a male and a female parent.

In addition to the stipulations regarding permissible treatment procedures, McBain was further restricted by s 22 of the Sex Discrimination Act 1984 (Cth) (Commonwealth Act). This pertains that for McBain, as a service provider to deny services on the basis of marital status was unlawful. It was unlawful for McBain to adhere to either law as they contradicted