Women and Justice: Court: Supreme Court of Victoria

Domestic Case Law

Castles v. Secretary to the Department of Justice Supreme Court of Victoria (2010)

Abortion and reproductive health rights, International law

This case challenged a decision by the Secretary of the Department of Justice to refuse Ms. Castles’ access to in vitro fertilization (“IVF”) treatment, while she was in a low security prison.  Prior to her imprisonment for social security fraud, Ms. Castles was undergoing IVF treatment.  Although she was sentenced to only 18 months of imprisonment, Ms. Castles was nearing the age at which IVF would no longer be available to her.  Ms. Castles sought a declaratory judgment and injunctive relief to enable her to continue IVF treatment to conceive a second child with her husband.  The question decided by the Supreme Court was whether access to IVF is inherent in the right to respect privacy and family life.  The Supreme Court acknowledged that although incarceration necessarily involves a limitation of the right to liberty, it places an additional burden on the State to preserve human dignity.  International agreements, including CEDAW and ICESCR, recognize that decisions concerning the number and spacing of children, and access to health services, including in the area of sexual and reproductive health, are an aspect of the inherent dignity of a person that underlies all human rights.  The Supreme Court held that the requirement to give proper consideration to human rights required the decision-maker to consider the possible impact of the decision on a person’s human rights, but that this need not be a sophisticated legal exercise.  The Supreme Court further ordered the Department of Justice to allow Ms. Castles access to the relevant medical treatment, subject to an assessment of any countervailing security or other concerns on a visit-by-visit basis.

R. v. Davidson Supreme Court of Victoria (1969)

Gender discrimination

Dr. Charles Kenneth Davidson was a medical doctor charged with four counts of unlawfully using an instrument and one count of conspiring to use an instrument or other means with intent to procure the miscarriage of a woman. The Court found that an abortion would be lawful if the accused held an honest and reasonable belief that the abortion was both “necessary” and “proportionate.” In this context, “necessary” means that the abortion was necessary to prevent serious harm to the woman’s life and/or physical or mental health, beyond the normal dangers of pregnancy and childbirth. “Proportionate” means the abortion was not out proportion with the danger to be averted. The jury applied Menhennitt J’s interpretation of the law and acquitted Dr. Davidson of the charges.

* This is a landmark decision, which has not been re-examined, despite several cases in which it could have been. Therefore, this decision continues to represent the legal position in Victoria, Australia.