DUNN -v- WA REPRODUCTIVE TECHNOLOGY COUNCIL [2026] WASCA 65

[2026] WASCA 65 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : DUNN -v- WA REPRODUCTIVE TECHNOLOGY COUNCIL [2026] WASCA 65 CORAM : MITCHELL JA VAUGHAN JA ARCHER JA HEARD : 17 NOVEMBER 2025 DELIVERED : 7 MAY 2026 FILE NO/S : CACV 80 of 2025 BETWEEN : BRADLEY COLIN DUNN First Applicant TRENT MICHAEL DUNN Second Applicant AMY LOUISE BAKER Third Applicant KIYA LOUISE BAKER Fourth Applicant AMELIA JANE CAMERON Fifth Applicant AND WA REPRODUCTIVE TECHNOLOGY COUNCIL Respondent ATTORNEY GENERAL FOR WESTERN AUSTRALIA Intervenor -- 1 of 74 -- [2026] WASCA 65 Page 2 Catchwords: Constitutional law - Human rights and anti-discrimination legislation - Where State law prevents same-sex couples from applying for a parentage order for child born under surrogacy arrangement - Whether State law requires Family Court of Western Australia to contravene s 22 of Sex Discrimination Act 1984 (Cth) by refusing to provide services by reason of sexual orientation of same-sex couples - Whether, in considering whether or not to make parentage order, Family Court is a 'person' providing 'services' within meaning of s 22 of Sex Discrimination Act - Whether State law is inconsistent with s 22 of Sex Discrimination Act and invalid to extent of that inconsistency under s 109 of Commonwealth Constitution Legislation: Artificial Conception Act 1985 (WA), s 5, s 7 Births Deaths and Marriages Registration Act 1998 (WA), s 24, s 36J, s 36Q, s 36S Commonwealth Constitution, s 109 Family Law Act 1975 (Cth), s 60H, s 60HB Interpretation Act 1984 (WA), s 10 Sex Discrimination Act 1984 (Cth), s 3, s 5, s 5A, s 9, s 22, s 40, s 85 Surrogacy Act 2008 (WA), s 12, s 13, s 16, s 19, s 20, s 21, s 26, s 32 Result: Application granted Category: A Representation: Counsel: First Applicant : E M Heenan SC & R Oakeley & L R Nicholls Second Applicant : E M Heenan SC & R Oakeley & L R Nicholls Third Applicant : E M Heenan SC & R Oakeley & L R Nicholls Fourth Applicant : E M Heenan SC & R Oakeley & L R Nicholls Fifth Applicant : E M Heenan SC & R Oakeley & L R Nicholls Respondent : No Appearance Intervenor : D E Leigh & F E Negus -- 2 of 74 -- [2026] WASCA 65 Page 3 Solicitors: First Applicant : Bannerman Solicitors Second Applicant : Bannerman Solicitors Third Applicant : Bannerman Solicitors Fourth Applicant : Bannerman Solicitors Fifth Applicant : Bannerman Solicitors Respondent : State Solicitor's Office Intervenor : State Solicitor's Office Case(s) referred to in decision(s): A v Independent Commission Against Corruption [2014] NSWCA 414; (2014) 88 NSWLR 240 AB v Registrar of Births, Deaths and Marriages [2006] FCA 1071; (2006) 235 ALR 147 AB v Registrar of Births, Deaths and Marriages [2007] FCAFC 140; (2007) 162 FCR 528 Addy v Federal Commissioner of Taxation [2021] HCA 34; (2021) 273 CLR 613 Athwal v The State of Queensland [2023] QCA 156; (2023) 16 QR 218 Australian Postal Commission v Dao [No 2] (1986) 6 NSWLR 497 Budd v State of New South Wales (Attorney General's Department) [2007] NSWADT 112 Burns v Ransley [1949] HCA 45; (1949) 79 CLR 101 Canadian Pacific Tobacco Co Ltd v Stapleton [1952] HCA 32; (1952) 86 CLR 1 Carter v Egg and Egg Pulp Marketing Board (Vic) (1942) 66 CLR 557 CD v Commonwealth; CD v Director of Public Prosecutions (SA) [2025] HCA 37; (2025) 99 ALJR 1388 CDJ v VAJ [1998] HCA 67; (1998) 197 CLR 172 Clyne v Deputy Commissioner of Taxation [1983] 1 NSWLR 110 Commissioner of Police v Mohammed [2009] NSWCA 432; (2009) 262 ALR 519 Commissioner of Police, NSW Police Service v Russell [2001] NSWSC 745 Commissioner of Taxation v Nestle Australia Ltd (1986) 12 FCR 257 Commonwealth of Australia v Anti-Discrimination Tribunal (Tasmania) [2008] FCAFC 104; (2008) 169 FCR 85 Commonwealth v Human Rights and Equal Opportunity Commission (1993) 46 FCR 191 Cowan v Stanhill Estates Pty Ltd [1966] VR 604 Department of Justice and Industrial Relations v Anti-Discrimination Commissioner [2003] TASSC 27; (2003) 11 Tas R 324 -- 3 of 74 -- [2026] WASCA 65 Page 4 Director Clinical Services, Child & Adolescent Health Services v Kiszko [2016] FCWA 75; (2016) 312 FLR 319 Director-General, Department of Community Services v MM [2003] NSWSC 1241 EHT18 v Melbourne IVF [2018] FCA 1421; (2018) 263 FCR 376 Elliott-Carde v McDonald's Australia Ltd [2023] FCAFC 162; (2023) 301 FCR 1 G Global 120E T2 Pty Ltd v Commissioner of State Revenue (Qld) [2025] HCA 39; (2025) 99 ALJR 1465 Gibson v Northern Territory of Australia [2024] NTSC 13; (2024) 386 FLR 70 HA Bachrach Pty Ltd v The State of Queensland [1998] HCA 54; (1998) 195 CLR 547 Hilton v Wells [1985] HCA 16; (1985) 157 CLR 57 Human Rights and Equal Opportunity Commission v Mount Isa Mines Ltd (1993) 46 FCR 301 In the Marriage of Horman (1976) 5 Fam LR 796 IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1 JM v QFG [1998] QCA 228; [2000] 1 Qd R 373 John Fairfax Publications Pty Ltd v Doe (1995) 37 NSWLR 81 Kizon v Palmer (1997) 72 FCR 409 Lane v Morrison [2009] FCA 29; (2009) 239 CLR 230 McBain v The State of Victoria [2000] FCA 1009; (2000) 99 FCR 116 Miller v Miller [1978] HCA 44; (1978) 141 CLR 269 Momcilovic v The Queen [2011] HCA 34; (2011) 245 CLR 1 Morgan v Roman Catholic Archbishop of Perth [2026] WASCA 62 New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2016] HCA 50; (2016) 260 CLR 232 O v O [2006] FCWA 121 Osborne v The Queen [2014] NSWCCA 17; (2014) 283 FLR 97 Palmanova Pty Ltd v Commonwealth [2025] HCA 35; (2025) 99 ALJR 1362 Pearce v South Australian Health Commission (1996) 66 SASR 486 Purvis v The State of New South Wales [2003] HCA 62; (2003) 217 CLR 92 R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 R v Entry Clearance Officer, Bombay; Ex parte Amin [1983] 2 AC 818 R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd [1970] HCA 8; (1970) 123 CLR 361 Rainsford v The State of Victoria [2005] FCAFC 163; (2005) 144 FCR 279 Rainsford v The State of Victoria [2007] FCA 1059; (2007) 167 FCR 1 Re East; Ex parte Nguyen (1998) 196 CLR 354 -- 4 of 74 -- [2026] WASCA 65 Page 5 Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16; (2002) 209 CLR 372 Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 Robinson v Commissioner of Police (NSW) [2012] FCA 770; (2012) 292 ALR 702 Rohner v Scanlan (1998) 86 FCR 454 Savjani v Inland Revenue Commissioners [1981] QB 458 Secretary of the Department of Justice and Industrial Relations v Anti-Discrimination Commissioner [2003] TASSC 27; (2003) 11 Tas R 324 Secretary, Department of Health and Community Services v JWB and SMB (Marion's Case) [1992] HCA 15; (1992) 175 CLR 218 Secretary, New South Wales Department of Family and Community Services by his delegate Principal Officer, Adoptions, Barnados Australia; Re JLR [2015] NSWSC 926 Sue v Hill [1999] HCA 30; (1999) 199 CLR 462 The State of Queensland v Stradford (a pseudonym) [2025] HCA 3; (2025) 99 ALJR 396 Towie v The State of Victoria [2008] VSC 177; (2008) 19 VR 640 Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 Waterside Workers' Federation of Australia v JW Alexander Ltd [1918] HCA 56; (1918) 25 CLR 434 Z v Mental Health Review Tribunal (No 2) [2022] NSWCA 131 -- 5 of 74 -- [2026] WASCA 65 Page 6 Table of Contents Mitchell & Archer JJA Introduction ..............................................................................................................................................7 Statutory context ......................................................................................................................................9 Artificial Conception Act ...................................................................................................................10 Surrogacy Act ....................................................................................................................................11 Births, Deaths and Marriages Registration Act.................................................................................15 Family Law Act ..................................................................................................................................15 Sex Discrimination Act ......................................................................................................................16 Whether Council misconstrued its function under the Surrogacy Act ...................................................18 Medical reasons ......................................................................................................................................23 Parties' contentions ............................................................................................................................23 Resolution of construction question...................................................................................................25 Whether s 19 of the Surrogacy Act is inconsistent with s 22 of the Sex Discrimination Act .................27 Whether the Family Court is providing a service ..............................................................................28 Whether the Family Court is a 'person' ..............................................................................................31 Whether s 19 requires the Family Court to unlawfully discriminate .................................................34 Less favourable treatment..............................................................................................................34 Whether less favourable treatment is by reason of sexual orientation ..........................................35 Whether the circumstances of a same-sex couple are materially different....................................36 Conclusion as to unlawful discrimination .....................................................................................37 Conclusion as to inconsistency ..........................................................................................................37 Orders .....................................................................................................................................................38 Vaughan JA Overview ................................................................................................................................................39 The background facts and statutory framework .....................................................................................40 The issues for determination ..................................................................................................................47 Ground 1 of the judicial review application - the constructional issue ..................................................49 Ground 2 of the judicial review application - the inconsistency issue ...................................................50 The applicants' submissions on whether the Family Court is a 'person' who provides 'services' ......51 The intervenor's submissions on whether the Family Court is a 'person' who provides 'services' .....56 The authorities - IW v City of Perth ...................................................................................................56 Consideration and determination - the Family Court is not relevantly a 'person' providing 'services' ...........................................................................................................................................................59 Conclusion and orders ............................................................................................................................73 -- 6 of 74 -- [2026] WASCA 65 MITCHELL & ARCHER JJA Page 7 MITCHELL & ARCHER JJA: Introduction 1 Bradley and Trent Dunn, who are a same-sex male married couple, want to start a family under a surrogacy arrangement. They have reached a surrogacy arrangement with Amy and Kiya Baker, a same-sex female married couple, and Dr Amelia Cameron. The arrangement contemplates that Amy Baker will become pregnant through the implant of an embryo generated from Trent Dunn's sperm and an egg donated by Dr Cameron. The surrogacy arrangement complies with the requirements of the Surrogacy Act 2008 (WA). The parties to the surrogacy arrangement are the applicants in these proceedings. 2 The Family Court of Western Australia (Family Court) can only make a parentage order for a child under the Surrogacy Act if a surrogacy arrangement is made and approved by the Western Australian Reproductive Technology Council (Council) before the intended birth mother becomes pregnant. The legal effect of a parentage order is that the arranged parents (in this case Bradley and Trent Dunn) rather than the child's birth parents (in this case Amy and Kiya Baker) would be treated as the child's parents for the purposes of the law of Western Australia and the Family Law Act 1975 (Cth). 3 Section 19 of the Surrogacy Act limits the circumstances in which an application for a parentage order can be made to the Family Court. Relevantly, arranged parents can only apply for a parentage order if, when the surrogacy arrangement was entered into or after that time but before the application is made, they are an 'eligible couple' or one of them is an 'eligible person'. 'Eligible couple' is relevantly defined in s 19(2) to mean two people of opposite sexes who, as a couple, are unable to conceive a child due to medical reasons not arising from their age. 'Eligible person' is relevantly defined to mean a woman who is unable to conceive a child due to medical reasons not arising from her age. As a same-sex male couple, Bradley and Trent Dunn are not an eligible couple and neither is an eligible person, so they cannot apply for a parentage order as arranged parents. 4 On 6 June 2025, Bradley and Trent Dunn sought the Council's approval of their surrogacy arrangement. On 17 June 2025, the Council resolved to refuse to approve the surrogacy arrangement. Section 17 of the Surrogacy Act provides that the Council 'may approve a surrogacy arrangement only if' specified requirements are satisfied. The Council was satisfied that the surrogacy arrangement met all of the specified -- 7 of 74 -- [2026] WASCA 65 MITCHELL & ARCHER JJA Page 8 requirements. However, the Council concluded that it was unable to grant approval 'due to the arranged parents not meeting the eligibility criteria' in s 19(2) of the Surrogacy Act. Bradley and Trent Dunn were advised of this decision on 30 June 2025. 5 On 12 September 2025, the applicants applied for judicial review of the Council's decision not to approve their surrogacy arrangement on two grounds. 6 First, the applicants say that the Council made a jurisdictional error of law by misconstruing the Surrogacy Act so as to misconceive the function it was performing. The applicants say that the ineligibility of Bradley and Trent Dunn to apply for a parentage order under s 19 of that Act does not restrict the Council's power to approve a surrogacy arrangement under s 17 of that Act. 7 Secondly, the applicants say that, to the extent s 19(2) of the Surrogacy Act purports to render Bradley and Trent Dunn ineligible to apply for or obtain a parentage order because they are both male, it is invalid under s 109 of the Commonwealth Constitution because it is inconsistent with s 22 of the Sex Discrimination Act 1984 (Cth). Section 22 of that Act relevantly makes it unlawful for a person who provides services to discriminate against another person on the grounds of the other person's sex or sexual orientation by refusing to provide the other person with those services. The applicants contend that, when it considers whether or not to make a parentage order, the Family Court is a 'person' providing 'services' for the purposes of s 22 of the Sex Discrimination Act. The applicants contend that s 19 and associated provisions of the Surrogacy Act require the Family Court to refuse to provide that service to same-sex couples on the grounds of sex and sexual orientation. They say that s 19 of the Surrogacy Act is directly inconsistent with s 22 of the Sex Discrimination Act by requiring the Family Court to discriminate against them on the grounds of their sex and sexual orientation in a way that is prohibited by the federal law. 8 The applicants seek a writ of certiorari to quash the Council's decision and a writ of mandamus requiring the Council to determine the application for approval of the surrogacy arrangement according to law. 9 The members of the Council are abiding by the court's decision. The Attorney General for Western Australia has intervened pursuant to s 78A of the Judiciary Act 1903 (Cth). On 7 October 2025, Smith AuJ ordered that the judicial review application be heard by this court. -- 8 of 74 -- [2026] WASCA 65 MITCHELL & ARCHER JJA Page 9 10 For the following reasons, the relief sought by the applicants should be granted. In summary: 1. On the proper construction of the Surrogacy Act, the Council's power to approve a surrogacy arrangement is not conditioned by reference to the status of the proposed arranged parents as an 'eligible couple' or 'eligible person'. The Council has a discretion to refuse to approve a surrogacy arrangement where there is no realistic prospect of the proposed arranged parents being eligible to apply for a parentage order. However, the Council misunderstood its function when it considered itself to have no power to approve the applicants' surrogacy arrangement. 2. The Family Court is a 'person' providing 'services' within the meaning of s 22 of the Sex Discrimination Act when it considers whether or not to make a parentage order. Section 19 and associated provisions of the Surrogacy Act require the Family Court to refuse to provide the service of considering whether or not to make a parentage order to all same-sex male couples. The Family Court is also required to refuse to provide that service to same-sex female couples unless one of the members of the couple is an 'eligible person'. Those provisions require the Family Court to discriminate against same-sex couples on the ground of their sexual orientation by treating them less favourably than the court would treat a different-sex couple in the same or not materially different circumstances. Different-sex couples who, as a couple, are unable to conceive a child without assisted reproductive technology services can apply for a parentage order. By contrast, all same-sex male couples, and many same-sex female couples, who are unable, as a couple, to conceive a child without assisted reproductive technology services cannot apply for a parentage order. In that manner, the provisions of the Surrogacy Act require the Family Court to act in a way that is unlawful under s 22 of the Sex Discrimination Act. Section 109 of the Constitution renders those provisions of the Surrogacy Act inoperative to the extent they provide that a same-sex couple cannot apply for a parentage order as an 'eligible couple'. Statutory context 11 The following statutory provisions are relevant to the resolution of the current judicial review application. -- 9 of 74 -- [2026] WASCA 65 MITCHELL & ARCHER JJA Page 10 Artificial Conception Act 12 The Artificial Conception Act 1985 (WA) provides for the parentage of the child contemplated by the applicants' surrogacy arrangement in the absence of a parentage order. 13 Under s 5(1) of the Artificial Conception Act: Where a woman undergoes an artificial fertilisation procedure in consequence of which she becomes pregnant and the ovum used for the purposes of the procedure was taken from some other woman, then for the purposes of the law of the State, the pregnant woman is the mother of any child born as a result of the pregnancy. Pursuant to this provision, unless the position is altered by a parentage order, for the purposes of State law Amy Baker will be the mother of the child contemplated by the surrogacy arrangement. 14 Under s 7(1) of the Artificial Conception Act: Where - (a) a woman becomes pregnant in consequence of an artificial fertilisation procedure; and (b) the ovum used for the purposes of the procedure was taken from some other woman, then for the purposes of the law of the State, the woman from whom the ovum was taken is not the mother of any child born as a result of the pregnancy. Under this provision, Dr Cameron would not be the mother of the child contemplated by the surrogacy arrangement for the purposes of State law. 15 Under s 7(2) of the Artificial Conception Act: Where - (a) a woman becomes pregnant in consequence of an artificial fertilisation procedure; and (b) a man (not being the woman's husband) produced sperm used for the purposes of the procedure, then for the purposes of the law of the State, the man referred to in paragraph (b) - -- 10 of 74 -- [2026] WASCA 65 MITCHELL & ARCHER JJA Page 11 (c) shall be conclusively presumed not to have caused the pregnancy; and (d) is not the father of any child born as a result of the pregnancy. Pursuant to this provision, in the absence of a parentage order, Trent Dunn would not be the father of the child contemplated by the surrogacy arrangement. 16 The legal relationship which Kiya Baker, as consenting spouse of Amy Baker, would have with the child contemplated by the surrogacy arrangement in the absence of a parentage order is less clear. The Artificial Conception Act makes provision for the consenting 'husband' or de facto female partner of a woman who undergoes an artificial fertilisation procedure to be the parent of the resulting child. These provisions were enacted prior to the amendment of the Marriage Act 1961 (Cth) to allow same-sex couples to marry. They do not make express provision in relation to two women who are married to each other. It may be that the reference to 'husband' should be read as including the wife of a married woman, under s 10(a) of the Interpretation Act 1984 (WA).1 On that view, which we prefer, in the absence of a parentage order Kiya Baker would be a parent (and one of the mothers) of the child contemplated by the surrogacy arrangement. Surrogacy Act 17 Section 3 of the Surrogacy Act defines 'surrogacy arrangement' in the following terms: In this Act, unless the contrary intention appears - surrogacy arrangement means an arrangement for a woman (the birth mother) to seek to become pregnant and give birth to a child and for a person or persons other than the birth mother (the arranged parent or arranged parents) to raise the child, but the term does not include an arrangement entered into after the birth mother becomes pregnant unless it is in variation of a surrogacy arrangement involving the same parties. 18 Part 2 of the Surrogacy Act deals with the status of surrogacy arrangements and prohibits certain surrogacy arrangements and certain things to do with surrogacy arrangements.2 Under s 7, in that part, a surrogacy arrangement is not enforceable except to the extent it creates an obligation to pay or reimburse reasonable expenses associated with 1 Section 10(a), which applies unless the contrary intention appears in the relevant written law, provides that in any written law words that indicate a person of a particular gender or sex include any individual regardless of gender or sex. 2 Surrogacy Act s 4. -- 11 of 74 -- [2026] WASCA 65 MITCHELL & ARCHER JJA Page 12 the pregnancy or the birth or any assessment or expert advice in connection with the arrangement. 19 Part 3 of the Surrogacy Act enables the Family Court to transfer, from the birth parents to the arranged parents, the parentage of a child born under a surrogacy arrangement in certain circumstances.3 20 Under s 13 of the Surrogacy Act: (1) In deciding whether to make a particular decision concerning a parentage order or proposed parentage order about a child, the court must regard the best interests of the child as the paramount consideration. (2) For the purposes of this Act it is presumed to be in the best interests of the child for the arranged parents to be the parents of the child, unless there is evidence to the contrary. 21 Section 16(1) of the Surrogacy Act provides that a parentage order cannot be made in respect of a child unless the surrogacy arrangement has been approved in writing under s 17 by the Council. Section 17 provides that the 'Council may approve a surrogacy arrangement only if' specified requirements are satisfied. These requirements concern: (a) the age of the birth mother (who must generally have reached 25 years of age); (b) the need for a written agreement signed by all interested parties; (c) the parties having undertaken counselling and psychological assessment, and received independent legal advice about the effect of the surrogacy arrangement; (d) the birth mother and donor having been assessed by a medical practitioner to be medically suitable to be involved in the surrogacy arrangement; and (e) the birth mother not yet having become pregnant with the child contemplated by the arrangement. 22 Section 19(1) and s 19(2) provide for when an application for a parentage order can be made, in the following terms: (1) An application can be made under this Part for a parentage order only if - 3 Surrogacy Act s 12. -- 12 of 74 -- [2026] WASCA 65 MITCHELL & ARCHER JJA Page 13 (a) the arranged parents reside in Western Australia and at least one arranged parent has reached 25 years of age; and (b) when the surrogacy arrangement was entered into or after that time but before the application is made - (i) the arranged parents are an eligible couple; or (ii) one of the arranged parents, or the arranged parent if there is only one, is an eligible person. (2) In subsection (1)(b) - eligible couple means 2 people of opposite sexes who are married to, or in a de facto relationship with, each other and who, as a couple - (a) are unable to conceive a child due to medical reasons not excluded by subsection (3); or (b) although able to conceive a child, would be likely to conceive a child affected by a genetic abnormality or a disease; eligible person means a woman who - (a) is unable to conceive a child due to medical reasons not excluded by subsection (3); or (b) although able to conceive a child, would be likely to conceive a child affected by a genetic abnormality or a disease; or (c) although able to conceive a child, is unable for medical reasons to give birth to a child. 23 Under s 19(3), the 'medical reasons' for being unable to conceive a child that are referred to in the definitions of 'eligible couple' and 'eligible person' do not include a reason arising from a person's age.4 24 Under s 20(1) of the Surrogacy Act: In the circumstances described in section 19, the arranged parents may, if the making of the order would not be prevented by section 16(1), apply in accordance with this section for a parentage order. 4 Additional reasons may be prescribed by regulations, but no relevant regulations have been made. -- 13 of 74 -- [2026] WASCA 65 MITCHELL & ARCHER JJA Page 14 25 Section 20(2) and s 20(3) generally require an application for a parentage order to be made between 28 days and 6 months after the birth of the child. 26 Section 21(1) of the Surrogacy Act provides: The court may, on an application made under section 20(1), make a parentage order. 27 Under s 21(2) of the Surrogacy Act, before it makes a parentage order, the court has to be satisfied of various matters, including that: (a) the circumstances that section 19 requires for applying for a parentage order exist[.] 28 Section 21(2) also generally requires the court to be satisfied that: (a) the parties have received counselling and independent legal advice; (b) the birth parents freely consent to the order being made; (c) the birth parents and arranged parents have agreed an approved plan; and (d) the child has been in the day-to-day care of the arranged parents. Section 21(3) enables the court to dispense with the requirements referred to in (a) - (c) above where a birth parent is deceased or incapacitated, or the arranged parents have been unable to contact a birth parent despite having made reasonable efforts to do so. 29 Under s 21(2)(g), before making a parentage order, the Family Court must also be satisfied that it is in the best interests of the child for the court to make the proposed order. 30 Section 26(1) of the Surrogacy Act relevantly provides for the legal effect of a parentage order in the following terms: The effect of a parentage order is that, for the purposes of the law of this State - (a) the relationship between the child whose parentage is transferred and each of the arranged parents is to be treated as being that of child and parent; and (b) the relationship between the child whose parentage is transferred and each of the child's birth parents is to be treated as not being that of child and parent; and -- 14 of 74 -- [2026] WASCA 65 MITCHELL & ARCHER JJA Page 15 (c) the relationships of all persons to the child whose parentage is transferred, to each of the arranged parents, and to each of the birth parents of the child are to be determined in accordance with this section. 31 Where the Family Court makes a parentage order, the registrar of the court is required by s 32(1) of the Surrogacy Act to give the Registrar of Births, Deaths and Marriages written notice of specified particulars relating to the order. Births, Deaths and Marriages Registration Act 32 Where notice is given under s 32(1) of the Surrogacy Act, s 24(2) of the Births, Deaths and Marriages Registration Act 1998 (WA) (BDM Act) requires the relevant particulars to be registered in relation to the child's birth. Family Law Act 33 Section 60H and s 60HB of the Family Law Act operate by reference to s 5 of the Artificial Conception Act and s 21 of the Surrogacy Act, which are respectively prescribed laws for the purposes of those provisions.5 34 For example, under s 60H(1) of the Family Law Act: If: (a) a child is born to a woman as a result of the carrying out of an artificial conception procedure while the woman was married to, or a de facto partner of, another person (the other intended parent); and (b) either: (i) the woman and the other intended parent consented to the carrying out of the procedure, and any other person who provided genetic material used in the procedure consented to the use of the material in an artificial conception procedure; or (ii) under a prescribed law of the Commonwealth or of a State or Territory, the child is a child of the woman and of the other intended parent; 5 See reg 48 and reg 49 of the Family Law Regulations 2024 (Cth) (and, prior to 10 June 2025, reg 12CA and reg 12CAA of the Family Law Regulations 1984 (Cth)). -- 15 of 74 -- [2026] WASCA 65 MITCHELL & ARCHER JJA Page 16 then, whether or not the child is biologically a child of the woman and of the other intended parent, for the purposes of this Act: (c) the child is the child of the woman and of the other intended parent; and (d) if a person other than the woman and the other intended parent provided genetic material - the child is not the child of that person. 35 Under s 60HB(1) of the Family Law Act: If a court has made an order under a prescribed law of a State or Territory to the effect that: (a) a child is the child of one or more persons; or (b) each of one or more persons is a parent of a child; then, for the purposes of this Act, the child is the child of each of those persons. Sex Discrimination Act 36 The long title to the Sex Discrimination Act contains a preamble recognising the need to prohibit, so far as possible, discrimination against people on grounds including sex and sexual orientation in areas which include the provision of services. The preamble also contains the following text: Affirming that every individual is equal before and under the law, and has the right to the equal protection and equal benefit of the law, without discrimination on the ground of sex, sexual orientation [etc]. 37 The objects of the Sex Discrimination Act set out in s 3 of that Act include: (a) to give effect to certain provisions of the Convention on the Elimination of All Forms of Discrimination Against Women and to provisions of other relevant international instruments; and … (d) to promote recognition and acceptance within the community of the principle of the equality of men and women; and (e) to achieve, so far as practicable, substantive equality between men and women. We shall refer to the convention specified in s 3(a) as the Sex Discrimination Convention. Other 'relevant international instruments' -- 16 of 74 -- [2026] WASCA 65 MITCHELL & ARCHER JJA Page 17 are defined in s 4(1) of the Act to include the International Covenant on Civil and Political Rights done at New York on 16 December 1966 (ICCPR). 38 Sections 5 and 5A of the Sex Discrimination Act define the concepts of discrimination against a person on the ground of a person's sex and sexual orientation respectively. 'Sexual orientation' is defined in s 4(1) of the Act to mean a: person's sexual orientation towards: (a) persons of the same sex; or (b) persons of a different sex; or (c) persons of the same sex and persons of a different sex. 39 Under s 5(1) and s 5A(1), a person (discriminator) discriminates against another person (aggrieved person) on the ground of the sex or sexual orientation of the aggrieved person if by reason of: (a) the sex or sexual orientation of the aggrieved person; (b) a characteristic that appertains generally to persons of the sex or sexual orientation of the aggrieved person; or (c) a characteristic that is generally imputed to persons of the sex or sexual orientation of the aggrieved person, the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person of a different sex or sexual orientation. 40 Further, under s 5(2) and s 5A(2), a discriminator discriminates against an aggrieved person on the ground of the sex or sexual orientation of the aggrieved person if the discriminator imposes, or proposes to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging persons of the same sex or sexual orientation as the aggrieved person. Section 5 and s 5A of the Sex Discrimination Act operate subject to s 7B of that Act, which provides that a person does not discriminate on this basis if the condition, requirement or practice is reasonable in the circumstances. 41 Section 9 of the Sex Discrimination Act provides for the application of the Act in a way designed to characterise the Act as law with respect to various heads of Commonwealth legislative power. Relevantly for -- 17 of 74 -- [2026] WASCA 65 MITCHELL & ARCHER JJA Page 18 present purposes, presently significant provisions of the Act have effect to the extent that the provisions give effect to the Sex Discrimination Convention and the ICCPR. 42 Part II of the Sex Discrimination Act contains various prohibitions against discrimination. The provision relied on by the applicants in the present case is s 22, which relevantly provides: It is unlawful for a person who, whether for payment or not, provides … services … to discriminate against another person on the ground of the other person's sex [or] sexual orientation … : (a) by refusing to provide the other person with those … services …; (b) in the terms or conditions on which the first-mentioned person provides the other person with those … services …; or (c) in the manner in which the first-mentioned person provides the other person with those … services[.] 43 The term 'services' is defined in s 4(1) to include services of the kind provided by a government. 44 Section 40 of the Sex Discrimination Act provides for exemptions from the operation of provisions, including s 22 (which is located in pt II div 2 of the Act). Under s 40(1)(d), nothing in div 2 affects anything done by a person in direct compliance with an order of a court. Relevantly under s 40(2B), nothing in div 2 as applying by reference to s 5A affects anything done by a person in direct compliance with a law of a State that is prescribed by the regulations for the purposes of that subsection. Although the Surrogacy Act and Human Reproductive Technology Act 1991 (WA) (HRT Act) were previously prescribed for the purposes of s 40(2B), that exemption ceased on 1 August 2017.6 45 Under s 85 of the Sex Discrimination Act, in the absence of any express provision to the contrary, contravention of s 22 of that Act is not an offence. Generally speaking, an affected person may bring civil proceedings for contravention of s 22 of the Sex Discrimination Act under pt IIB of the Australian Human Rights Commission Act 1986 (Cth). Whether Council misconstrued its function under the Surrogacy Act 46 It is common ground between the parties, and we agree, that s 17 of the Surrogacy Act does not require the Council to approve a surrogacy 6 Reg 5 of the Sex Discrimination Regulations 1984 (Cth), as amended by sch 1 to the Sex Discrimination Amendment (Exemptions) Regulation 2016 (Cth). -- 18 of 74 -- [2026] WASCA 65 MITCHELL & ARCHER JJA Page 19 arrangement whenever the requirements specified in s 17(a) - (e) are satisfied. Rather, by providing that the 'Council may approve a surrogacy arrangement only if' those requirements are satisfied, s 17(a) - (e) limit the Council's discretionary power conferred by s 17 of the Surrogacy Act. It is common ground that, to the extent that s 17 does not prohibit the Council from approving a surrogacy arrangement when there is no realistic prospect of a parentage order being made by the Family Court, it allows the Council to refuse to approve the arrangement in those circumstances in the exercise of its discretion. 47 The contentious issue of construction of the Surrogacy Act in this case is whether s 17 of that Act implicitly conditions the existence of the Council's power to approve a surrogacy arrangement by reference to the status of the arranged parents as an 'eligible couple' or 'eligible person'. The applicants contend that the Council is not deprived of power, although it retains a discretion to refuse to approve a surrogacy arrangement where there is no realistic prospect of a parentage order being made. It is common ground that the Council refused to approve the applicants' surrogacy arrangement because it considered itself to lack power to grant approval, rather than because it exercised a discretion to refuse approval. The applicants therefore say that the Council made a jurisdictional error of law by misapprehending the nature of its power. 48 For the following reasons, we accept the applicants' submissions summarised in the previous paragraph. 49 Section 17 of the Surrogacy Act expressly sets out a detailed list of matters which limit the Council's power to approve a surrogacy arrangement. This counts strongly against the existence of other implicit limitations on the Council's power to approve a surrogacy arrangement. Given the detailed provisions in s 17, if Parliament intended to impose additional restrictions on the power it would be expected to have done so expressly by adding to the list of conditions specified in s 17(a) - (e) of the Surrogacy Act. Further, there is no need to imply additional restrictions to avoid absurd results or consequences that Parliament could not have intended. The exercise of the Council's discretion to withhold approval of a surrogacy arrangement even when the conditions specified in s 17(a) - (e) are satisfied can avoid results and consequences of that kind. 50 It is significant that, under s 19(1) of the Surrogacy Act, an application for a parentage order can be made if the arranged parents either: -- 19 of 74 -- [2026] WASCA 65 MITCHELL & ARCHER JJA Page 20 (a) are an eligible couple when the surrogacy arrangement is entered into; or (b) become an eligible couple at any time after entry into the surrogacy arrangement but before the application for a parentage order is made. In this manner, s 19 of the Surrogacy Act expressly contemplates that the Council may approve a surrogacy arrangement in circumstances where the arranged parents are not an eligible couple at the time the surrogacy arrangement is made and approved. Therefore, the Council must have power to approve a surrogacy arrangement even though the arranged parents are not an eligible couple at the time approval is given. 51 There will inevitably be a significant time between: (a) approval of a surrogacy arrangement (which under s 17(e) of the Surrogacy Act must be before the birth mother becomes pregnant); and (b) making an application for a parentage order (which under s 20(2) of the Surrogacy Act must be at least 28 days after the child is born). 52 Various circumstances may change so that arranged parents who are not an eligible couple when a surrogacy arrangement is approved may become an eligible couple by the time an application for a parentage order is made to the Family Court. 53 For example, the couple may not be married to each other at the time the arrangement is approved but may plan to marry before the child is born. They may be able, as a couple, to conceive a child at the time the surrogacy arrangement is approved but anticipate that imminent surgery will deprive them of that capacity. 54 Even the sex of the arranged parents is not immutable under State law. Section 36J(1) of the BDM Act provides that a person who is 18 years of age or more may apply to change the person's sex in the registration of the person's birth. This may be done if the person's birth is registered in the State and the person believes the person's sex to be the sex specified in the application. Section 36Q(1) of the BDM Act provides for the Registrar to make or refuse to make the proposed change. When the change is made then, under s 36S, the person is a person of the sex as changed for the purposes of, but subject to, a law of a State. One member of a couple who are of the same sex at the time a -- 20 of 74 -- [2026] WASCA 65 MITCHELL & ARCHER JJA Page 21 surrogacy arrangement is approved might utilise these provisions to change their sex before applying for a parentage order. If that occurs then, at the time an application for a parentage order is made, the couple may be '2 people of opposite sexes' for the purposes of the definition of 'eligible couple' in s 19(2) of the Surrogacy Act. 55 Further, the arranged parents might be under 25 years of age and therefore unable to make an application for a parentage order under s 19(1)(a) of the Surrogacy Act at the time a surrogacy arrangement is approved. However, if one of the arranged parents is over 25 years of age at the time the child is born, then the arranged parents will be able to apply for a parentage order 28 days after that time. 56 The above considerations mean that any implied limitation on the Council's power to approve a surrogacy arrangement cannot depend on the capacity of the arranged parents to apply for a parentage order at the time the surrogacy arrangement is approved. Rather, any limitation must be expressed by reference to the degree of likelihood of the arranged parents being able to apply for a parentage order between 28 days and 6 months after a child is born under the surrogacy arrangement. The difficulty is in identifying the degree of improbability which Parliament is taken to have implicitly required. There is also no clear basis in the statutory text for determining whether the assessment of improbability is an objective one for the court reviewing a purported exercise of the power or a criterion which turns on the Council's state of satisfaction about that matter. 57 The intervenor contends that it is implicit that the Council has no power to approve a surrogacy arrangement when there is no realistic prospect of a couple who are not eligible at the approval date becoming eligible to apply for a parentage order when an application can be made.7 However, that is not a bright line distinction. Whether the prospects of eligibility are 'realistic' may depend on an evaluative assessment on which reasonable minds might differ in a marginal case. 58 As initially formulated, the intervenor's implied limitation appeared to turn on the objective position to be determined on the material before the court considering the question rather than on the material before the Council. That would lead to the highly inconvenient result that the approval of a surrogacy arrangement might be invalid for reasons which would not be apparent to the Council or the applicants for approval. However, the intervenor's submissions later referred to it being a matter 7 Appeal ts 62 - 63. -- 21 of 74 -- [2026] WASCA 65 MITCHELL & ARCHER JJA Page 22 for the Council whether it was satisfied that there was a 'reasonable prospect' on the evidence before the Council.8 59 These difficulties in formulating the implied limitation contended for by the intervenor suggest that no precise limitation is discernible from the legislative text. In our view, the implication contended for by the intervenor cannot be properly drawn as a matter of statutory construction. The Council has a discretion to refuse to approve a surrogacy arrangement where it is of the view that there is no realistic prospect of the arranged parents being able to apply for a parentage order. However, Parliament has not implicitly conditioned the existence of the Council's power to approve a surrogacy arrangement by reference to the status of the proposed arranged parents as an 'eligible couple' or 'eligible person'. 60 In the present case, the Council misunderstood its statutory function when it concluded that it had no power to approve the applicants' surrogacy arrangement. Therefore, in our view the applicants have established jurisdictional error which could ground the issue of certiorari to quash the Council's decision to refuse to approve their surrogacy arrangement, and mandamus requiring the Council to exercise its discretion according to law. 61 However, certiorari and mandamus are discretionary remedies,9 which may be refused when there is no utility in granting that relief, in the sense that no useful result could ensue.10 That presents as a difficulty for the applicants unless their inconsistency argument succeeds. Bradley and Trent Dunn are both male, and so (subject to the operation of s 109 of the Constitution) cannot be an 'eligible couple' as defined in s 19(2) of the Surrogacy Act because they are not '2 people of opposite sexes'. Neither Bradley nor Trent Dunn can be an 'eligible person' as defined in s 19(2) because neither is a woman. There is no suggestion that either believe themselves to be of a different sex, so as to be able to change their sex under the provisions of the BDM Act noted above. 62 The only legal purpose in obtaining the Council's approval of a surrogacy arrangement is to enable an application for a parentage order to be made and approved. As things stand, subject to the operation of s 109 of the Constitution, there is no realistic prospect of a parentage 8 Appeal ts 72. 9 Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16; (2002) 209 CLR 372 (McBain HCA) [21] (Gleeson CJ), [95] (McHugh J), [160] (Kirby J), [281] (Hayne J, Gaudron and Gummow JJ agreeing at [80]). 10 R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389, 400; Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 [54] - [58]. -- 22 of 74 -- [2026] WASCA 65 MITCHELL & ARCHER JJA Page 23 order being made in relation to the child contemplated by the applicants' surrogacy arrangement. 63 The applicants suggested that the approval of a surrogacy arrangement may have some practical effect under legislation which was before Parliament at the time of the hearing. That legislation was subsequently enacted as the Assisted Reproductive Technology and Surrogacy Act 2025 (WA). The operative provisions of that Act have not yet been proclaimed. That Act does not provide for the approval of a surrogacy arrangement by the Council before a parentage order can be made. Transitional provisions in pt 14 div 5 of that Act do not give any particular status to a surrogacy arrangement approved by the Council under the Surrogacy Act. Therefore, the approval of the applicants' surrogacy arrangement under the existing law will not be required, and will not have any legal consequences, under the new Act. 64 As such, if s 19 of the Surrogacy Act operates on its terms, there would be no utility in granting certiorari to quash the Council's decision not to approve the surrogacy arrangement. 65 In the present case, the utility of the grant of certiorari turns on the applicants' constitutional argument that s 19 of the Surrogacy Act is inoperative under s 109 of the Constitution to the extent that it precludes an otherwise eligible same-sex couple from applying for a parentage order. Therefore, despite the above jurisdictional error being established, it is necessary for this court to determine the constitutional argument in order to decide whether relief should be granted to the applicants. Medical reasons 66 Before turning to the constitutional argument, we will deal with a further issue of statutory construction of the Surrogacy Act which may impact on the constitutional argument. This concerns the meaning of the phrase 'unable to conceive a child due to medical reasons' in the definitions of 'eligible couple' and 'eligible person' in s 19(2) of the Surrogacy Act. Parties' contentions 67 The intervenor submits that this phrase should be understood as referring to medical infertility, encompassing a situation where a person or persons, who might be expected in the usual course of events to conceive, are unable to do so after an extended period of attempting to conceive. The intervenor submits that the phrase does not comprehend persons who are unable to conceive as a couple because they are of the -- 23 of 74 -- [2026] WASCA 65 MITCHELL & ARCHER JJA Page 24 same sex. The intervenor says that men in a same-sex relationship are not, as a couple, unable to conceive a child due to medical reasons. Rather, they are unable to conceive due to their male biology. They submit that this construction reflects the requirement that a couple be two people of opposite sexes in order to be an 'eligible couple'. 68 The applicants contend that the phrase requires only that, as a matter of medical science, there is a reason that the couple, taken together, are unable to conceive. That reason may be that, between them, the couple do not have the combination of sexual organs required to conceive a child. This may be because one or both of them were born that way, or it has arisen due to an illness, disease or medical intervention. A same- sex male couple may satisfy that requirement because neither was born with a uterus. 69 Alternatively, the applicants say that, to the extent infertility is required, the phrase captures the understanding of medical science. The applicants submit this understanding is reflected in a 'consensus statement' published in August 2024 by the Australian and New Zealand Society for Reproductive Endocrinology and Infertility. That consensus statement was endorsed by the Fertility Society of Australia and New Zealand and the Royal Australian and New Zealand College of Obstetricians and Gynaecologists. The statement indicates that it extends the definition of infertility 'to improve inclusiveness and equitable access to reproductive care irrespective of relationship status, sexual orientation or gender identity'. The consensus statement states: The revised definition states that infertility is a disease condition or status characterised by any of the following: 1. The inability to achieve a successful pregnancy based on a patient's medical, sexual, and reproductive history, age, physical findings, diagnostic testing, or any combination of those factors. 2. The need for medical intervention, including, but not limited to, the use of donor gametes or donor embryos in order to achieve a successful pregnancy either as an individual or with a partner. 3. In patients having regular, unprotected intercourse and without any known aetiology for either partner suggestive of impaired reproductive ability, evaluation should be initiated at 12 months when the female partner is under 35 years of age and at 6 months when the female partner is 35 years of age or older. Nothing in the definition should be used to deny or delay treatment to any individual, regardless of relationship status or sexual orientation. -- 24 of 74 -- [2026] WASCA 65 MITCHELL & ARCHER JJA Page 25 The applicants say that a same-sex male couple satisfies this requirement. Resolution of construction question 70 The phrase 'unable to conceive a child due to medical reasons' is not, in our view, to be considered in isolation. The definition of 'eligible couple' in the Surrogacy Act is two people of opposite sexes who, as a couple, are unable to conceive a child due to non-excluded medical reasons. In that statutory context, there is no reason to adopt an extended definition of the phrase 'medical reasons' to accommodate a same-sex couple. That is because the definition of 'eligible couple' only contemplates a different-sex couple. 71 Further, the words 'medical reasons' in the phrase should be given some work to do. On the applicants' primary construction, the words are superfluous, as the result could have been achieved by referring to two persons who, as a couple, are unable to conceive for a reason not excluded by s 19(3) of the Surrogacy Act. 72 As a matter of ordinary language, a reference to 'medical reasons' suggests some aetiology which impairs the ordinary functioning of the human body. That language does not naturally comprehend an inability of two people of the same sex to conceive a child because, as a couple, they do not have both male and female sexual organs which are, as a matter of biology, required for human reproduction. It is an artificial and strained use of ordinary language to regard the inability of two males, as a couple, to conceive a child because they each only have male sexual organs as an inability to conceive a child due to medical reasons. 73 The applicants refer to the legislative history of the HRT Act as supporting their construction. Section 23 of the HRT Act, which is referred to in s 19(3)(b) of the Surrogacy Act, most relevantly allows an in vitro fertilisation procedure to be carried out when it would benefit persons who, as a couple, are unable to conceive a child due to medical reasons where the members of the couple are married to each other, or are in a de facto relationship with each other and are of the opposite sex to each other. As enacted, s 23 of the HRT Act relevantly referred to persons who, as a couple, 'are infertile'. This language was amended by s 74 of the Acts Amendment (Lesbian and Gay Law Reform) Act 2002 (WA), which replaced the reference to a couple being 'infertile' with the phrase 'unable to conceive a child due to medical reasons'. 74 In our view, the legislative history of s 23 of the HRT Act does not assist the applicants' construction argument. At the time of its enactment and amendment, s 23 required a couple to either be married or, if in a -- 25 of 74 -- [2026] WASCA 65 MITCHELL & ARCHER JJA Page 26 de facto relationship, to be of opposite sexes. At those times the Marriage Act did not provide for same-sex marriages. Section 23, as enacted and amended, did not contemplate the inability of a same-sex couple to conceive a child to be an inability to conceive a child due to medical reasons. The purposes of the amendment set out in the explanatory memorandum to the Bill for the 2002 amendment Act confirm that meaning of the statutory text:11 This amendment makes provisions that will allow a woman who is unable to conceive a child for medical reasons, or whose child is likely to be affected by a genetic abnormality or disease, to have access to in vitro fertilisation procedures. There is no restriction on whether the woman is married, single or in a de facto relationship with a person of the same or opposite sex. Provision is also made for heterosexual couples to access in vitro fertilisation procedures where the woman is not infertile, but there are medical reasons preventing them conceiving a child, or their child is likely to be affected by a genetic abnormality or disease. A fertile single woman, or a fertile woman in a same sex relationship, would not be able to access in vitro fertilisation procedures, but is able to use artificial insemination to attempt to achieve a pregnancy. (emphasis added) In light of subsequent amendments to the Marriage Act, a same-sex couple who are married to each other may now be regarded as being a couple for the purposes of s 23 of the HRT Act. However, those amendments to the Marriage Act do not justify giving a strained construction to the phrase 'unable to conceive for medical reasons' in s 23 of the HRT Act. 75 The extension of the definition of 'fertility' in the consensus statement referred to at [69] above also does not assist the applicants' construction argument. That extension of the definition adopted by various medical professional associations occurred after the relevant legislation was enacted and reflects a policy of extending the availability of treatment to same-sex couples which is not reflected in the legislation. 76 Therefore, in our view, two people of the same sex who each have sexual organs generally associated with their sex will never, as a couple, be unable to conceive a child for medical reasons within the meaning of s 19(2) of the Surrogacy Act. This is a further reflection of the policy of the legislation that a same-sex couple are not able to apply for and obtain a parentage order to give effect to a surrogacy arrangement. It is then 11 Clause notes for Acts Amendment (Lesbian and Gay Law Reform) Bill 2001 page 11. -- 26 of 74 -- [2026] WASCA 65 MITCHELL & ARCHER JJA Page 27 necessary to consider the consistency of that legislative policy with s 22 of the Sex Discrimination Act. Whether s 19 of the Surrogacy Act is inconsistent with s 22 of the Sex Discrimination Act 77 Section 109 of the Constitution provides that, when a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid. Section 109 of the Constitution renders an inconsistent State law inoperative to the extent of the inconsistency.12 One way inconsistency can arise is where a State law would alter, impair or detract from the operation of the Commonwealth law.13 A clear example is where a State law would require a person to do something that a Commonwealth law prohibits.14 78 In the present case, the applicants contend that s 19, read with s 20(1) and 21(2)(a), of the Surrogacy Act requires the Family Court to discriminate against same-sex arranged parents on the ground of their sex and sexual orientation by refusing to provide them with the service of considering whether or not to make a parentage order. Section 22 of the Sex Discrimination Act prohibits that conduct. The applicants contend that s 19 of the Surrogacy Act is inconsistent with s 22 of the Sex Discrimination Act and is inoperative to that extent. 79 This argument depends on the applicants establishing that: 1. In considering whether or not to make a parentage order, the Family Court is providing 'services' within the meaning of s 22 of the Sex Discrimination Act. 2. The Family Court is a 'person' within the meaning of s 22 of the Sex Discrimination Act. 3. Section 19 of the Surrogacy Act requires the Family Court to discriminate against them on the ground of their sex or sexual orientation by refusing to provide that service. 80 The applicants also contended that the Council was a person providing 'services' for the purposes of s 22 of the Sex Discrimination Act. Given our conclusion that s 17 of the Surrogacy Act does not prohibit the Council from approving the applicants' surrogacy 12 Carter v Egg and Egg Pulp Marketing Board (Vic) (1942) 66 CLR 557, 573, 582, 599; G Global 120E T2 Pty Ltd v Commissioner of State Revenue (Qld) [2025] HCA 39; (2025) 99 ALJR 1465 [38]. 13 G Global [40]. 14 Carter (573 - 574). -- 27 of 74 -- [2026] WASCA 65 MITCHELL & ARCHER JJA Page 28 arrangement, it is unnecessary to resolve this issue. In any event, s 19 of the Surrogacy Act is directed to the making of an application for a parentage order to the Family Court. Whether the Family Court is providing a service 81 The term 'services' is defined in s 4(1) of the Sex Discrimination Act to include services of the kind provided for by a government. The decision of the High Court, in IW v City of Perth,15 illustrates that the exercise of a statutory discretion by a government body may involve the provision of a service for these purposes. An issue in that case was whether the City of Perth, in refusing an application for planning approval under a planning scheme, was providing 'services' within the meaning of a State provision equivalent to s 22 of the Sex Discrimination Act. 82 In IW, Brennan CJ and McHugh J formed part of the majority which dismissed the appeal to the High Court. They found that the exercise of the statutory discretion to grant or withhold approval could not be described as a service. They held that the discrimination claim was properly dismissed for that reason.16 83 Dawson and Gaudron JJ also formed part of the majority in IW. They held that provisions designed to protect basic human rights and dignity should be construed as widely as the terms permit and 'services' should be construed as having its ordinary broad meaning.17 They held that the ordinary meaning of the word 'services' was apt to include the administration and enforcement of the planning scheme. The exercise of a discretion to grant or withhold planning approval was part of that service. They dismissed the appeal because the refusal of planning approval in the exercise of that discretion was not a refusal to provide the service as contended by the appellants in that case.18 Gummow J, the other member of the majority in IW, took a similar approach.19 The two dissenting judges, Toohey and Kirby JJ, also concluded that the City of Perth was providing a service when it exercised its statutory discretion to grant or refuse planning approval under the relevant scheme.20 84 Although the ratio of the decision in IW may be difficult to discern, five of the judges in that case, including three members of the five- 15 IW v City of Perth (1997) 191 CLR 1. 16 IW (15 - 17). 17 IW (22 - 23). 18 IW (23 - 24). 19 IW (41 - 45). 20 IW (28 - 29) and (69 - 75). -- 28 of 74 -- [2026] WASCA 65 MITCHELL & ARCHER JJA Page 29 member majority, held that the exercise of a discretion to grant or refuse planning approval involved the provision of a service by the City of Perth. 85 At single judge level, it has been held that consideration of an application for alteration of a person's sex on their birth registration,21 or for approval as a foster carer,22 involves the provision of 'services' for the purposes of anti-discrimination legislation. On the other hand, the arrest and detention of suspected offenders,23 the exercise of the discretion to grant bail,24 the transportation and accommodation of prisoners in the prison system,25 and the exercise of the prosecutorial discretion to charge an offender,26 have been held not to constitute the provision of services for the purposes of anti-discrimination legislation. 86 Consistently with these authorities, the reference to 'services' in s 22 of the Sex Discrimination Act is to the ordinary meaning of the term. As Heery J noted in AB FCA,27 this comprehends an 'act of helpful activity' or 'the supplying of any … activities … required or demanded' (Macquarie Dictionary) or 'the action of serving, helping, or benefiting, conduct tending to the welfare or advantage of another' (Shorter Oxford Dictionary). Where a statute provides for a public authority to grant a permission or approval which will confer a benefit on an applicant as an individual then what is involved will generally constitute the provision of services for these purposes. 87 A statutory approval requirement will ordinarily involve a regulatory component, and consideration of matters other than the personal interests of the applicant for the approval. Features of that kind will not prevent the consideration of whether or not to grant the approval from being characterised as the provision of services of a kind provided for by a government. However, a statutory process which exists for a predominantly public purpose rather than for the benefit of individuals who are subject to it, such as the administration of the criminal justice 21 AB v Registrar of Births, Deaths and Marriages [2006] FCA 1071; (2006) 235 ALR 147 (AB FCA) [65] - [66]. While Black CJ agreed with this view on appeal, the other member of the court did not find it necessary to consider whether the finding was correct: AB v Registrar of Births, Deaths and Marriages [2007] FCAFC 140; (2007) 162 FCR 528 [28] - [29], [117], [121]. 22 Director-General, Department of Community Services v MM [2003] NSWSC 1241 [40] - [44]. 23 Robinson v Commissioner of Police (NSW) [2012] FCA 770; (2012) 292 ALR 702 [168] - [169]. 24 Robinson [178] - [180]. 25 Rainsford v The State of Victoria [2007] FCA 1059; (2007) 167 FCR 1 [76] - [79]. 26 Department of Justice and Industrial Relations v Anti-Discrimination Commissioner [2003] TASSC 27; (2003) 11 Tas R 324 [53]. 27 AB FCA [65]. -- 29 of 74 -- [2026] WASCA 65 MITCHELL & ARCHER JJA Page 30 system, will not generally constitute the provision of 'services' for the purposes of the Sex Discrimination Act. 88 In the present case, the regime established by the Surrogacy Act exists to assist persons and couples who are otherwise unable to conceive a child to have children. A parentage order enables the arranged parents, who are the only authorised applicants for an order, to have a parental relationship with a child born under a surrogacy arrangement. The Family Court is not concerned only with the interests of the arranged parents and can only make a parentage order if satisfied that doing so is in the best interests of the child. However, that feature of the regime, requiring matters other than the interests of the applicants for a parentage order to be considered, does not deny the individual benefits of a parentage order flowing to the arranged parents. 89 It is significant that the Family Court's function does not involve a typical exercise of judicial power focussed on the resolution of controversies about existing rights. In contrast to the paradigm case of an exercise of judicial power, the making of a parentage order does not generally involve:28 [A] decision settling for the future, as between defined persons or classes of persons, a question as to the existence of a right or obligation so that an exercise of the power creates a new charter by reference to which that question is in future to be decided as between those persons or classes of persons. 90 By contrast, when the Family Court is asked to make a parentage order there will, at least generally, be no controversy as to the order which should be made. The arranged parents must apply for the order under s 20(1) of the Surrogacy Act. Save in cases where a birth parent is deceased, incapacitated or unable to be contacted, the court can only make a parentage order when satisfied, as required by s 21(2)(d) of the Surrogacy Act, that the child's birth parents freely consent to the making of the order and an appropriate plan has been agreed as required by s 21(2)(f) of the Surrogacy Act. The parentage order does not determine what rights, duties and liabilities were in existence at the time the order is made. Rather, the parentage order is the factum from which new statutory rights, duties and liabilities flow. Although it involves the exercise of judicial power when undertaken by a court,29 deciding to create a new parental relationship between arranged parents and a child 28 R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361, 374 (Kitto J). 29 In many cases, a power may take its character as exercise of executive or judicial power from the nature of the body entrusted with its exercise: see for example, HA Bachrach Pty Ltd v The State of Queensland [1998] HCA 54; (1998) 195 CLR 547 [15] and cases there cited. -- 30 of 74 -- [2026] WASCA 65 MITCHELL & ARCHER JJA Page 31 born under a surrogacy arrangement is not an inherently judicial function. The function might have been conferred on an officer of the executive government rather than a court. 91 It is therefore not necessary in the present case to consider whether the ordinary judicial function of courts in adjudicating upon controversies about existing rights, duties and liabilities is generally incompatible with the exercise of judicial power in those types of cases being characterised as involving the provision of services. Particularly having regard to the matters referred to at [94] below, we see no reason to exclude the judicial branch of the government of the State of Western Australia from the reference to 'a government' in the definition of 'services' contained in the Sex Discrimination Act. The particular and atypical features of the judicial power exercised by the Family Court when evaluating whether or not to make a parentage order under s 21 of the Surrogacy Act are consistent with the Family Court providing 'services' of a kind provided by a government when it exercises that jurisdiction. 92 In our view, when the Family Court considers whether or not to make a parentage order under s 21 of the Surrogacy Act, it is providing services, namely services of the kind provided by a government, for the purposes of s 22 of the Sex Discrimination Act. Whether the Family Court is a 'person' 93 We then turn to consider whether the Family Court is a 'person' for the purposes of s 22 of the Sex Discrimination Act, so as to be subject to the statutory prohibition against refusing to provide another person with services on the ground of that person's sex or sexual orientation. 94 In some statutory contexts, references to a 'person' have been construed as not including a court. For example, statutory prohibitions against disclosing information to a 'person' have often been construed as not prohibiting disclosure to a court.30 This line of authority explains why s 112(2) of the Sex Discrimination Act specifically addresses the provision of information to a court in a way that does not, in our view, imply that references to 'a person' in other parts of the Act do not include courts. However, the reasoning adopted in those cases cannot be applied to the very different context of s 22 of the Sex Discrimination Act. It would be highly incongruous for legislation which begins with an affirmation of the equality of every individual before and under the law, and the rights to equal protection and equal benefit of the law, to exclude 30 Kizon v Palmer (1997) 72 FCR 409, 430 - 431 and cases there cited. -- 31 of 74 -- [2026] WASCA 65 MITCHELL & ARCHER JJA Page 32 courts from the ambit of protective provisions which would otherwise apply to them. It would also be highly incongruous for an Act with the objective of giving effect to the Sex Discrimination Convention, which includes in article 15.2 an obligation of State Parties to treat women equally in all stages of procedure in courts, to exclude courts from its operation. Similarly, to allow courts to discriminate on the ground of sexual orientation when providing services would be inconsistent with article 14.1 of the ICCPR, which provides that all persons shall be equal before the courts. 95 In this context, the prohibitions against persons discriminating against protected persons on particular grounds are to be construed as comprehending courts when undertaking an activity to which the prohibitions apply. This may include the provision of services within the meaning of s 22 of the Sex Discrimination Act or performing functions and powers under a Commonwealth law within the meaning of s 26 of that Act. 96 Contrary to the intervenor's submissions, the doctrine of judicial immunity from civil suit does not require s 22 of the Sex Discrimination Act to be construed as not applying to courts. Under this common law doctrine, judges of Australian courts are immune from civil suit arising out of acts done in the exercise, or purported exercise, of their judicial function or capacity.31 97 The High Court's decision, in Re East; Ex parte Nguyen,32 illustrates that this judicial immunity from suit concerns the enforcement rather than the existence of the obligation. Mr Nguyen sought to bring action in the original jurisdiction of the High Court. He alleged a breach of s 9 of Racial Discrimination Act 1975 (Cth) by the Magistrates Court of Victoria and the County Court of Victoria. The alleged breach involved failing to arrange for a translator in criminal proceedings brought against Mr Nguyen in those courts. The plurality noted that the matters of which Mr Nguyen complained, if made out, would have constituted grounds of review or appeal in the Victorian State courts.33 They identified two fundamental problems with the notion that either a judicial officer or a court may be the subject of legal redress on the ground of an alleged contravention of s 9 of the Racial Discrimination Act: 31 The State of Queensland v Stradford (a pseudonym) [2025] HCA 3; (2025) 99 ALJR 396 [12]. 32 Re East; Ex parte Nguyen (1998) 196 CLR 354. 33 East [27]. -- 32 of 74 -- [2026] WASCA 65 MITCHELL & ARCHER JJA Page 33 1. The 'well established immunity from suit which protects judicial officers from actions arising out of acts done in the exercise of their judicial function or capacity'.34 2. The Racial Discrimination Act provided 'its own, exclusive regime for remedying contraventions'.35 98 The plurality in East did not deny that s 9 of the Racial Discrimination Act established a legal norm which a court or judge might contravene. They recognised that breach of that legal norm might be corrected on appeal from, or an application for judicial review of, the court's decision. Rather, the plurality denied the availability of a civil remedy for contravention of s 9 of that Act against the court or judge concerned, in part by reason of the common law immunity from suit. 99 In East, Kirby J construed s 9 of the Racial Discrimination Act as not applying to judicial officers at all.36 However, the approach taken by Kirby J was not reflected in, and appears inconsistent with, the plurality's reasons in that case. 100 In the present case, the applicants do not suggest that an aggrieved person could bring a complaint or application under pt IIB of the Australian Human Rights Commission Act against a judge of the Family Court alleging unlawful discrimination under s 22 of the Sex Discrimination Act. The common law doctrine of judicial immunity from suit would prevent that course being adopted. But that does not mean that s 22 does not impose any obligation on courts at all. Section 22 can operate to create a legal norm of conduct which applies to courts, and which may engage s 109 of the Constitution, without creating a private right of civil action against a judge constituting a court which contravenes that legal norm. 101 The intervenor relied on s 40 of the Sex Discrimination Act as indicating that s 22 of that Act is not directed to courts. Section 40(1)(d) provides that nothing in div 1 or 2 of the Sex Discrimination Act 'affects anything done by a person in direct compliance with … an order of a court'. This provision does not assist the intervenor's argument. Section 40 relevantly ensures a person who acts in direct compliance with a court order does not contravene s 22 of the Sex Discrimination Act. It does not exempt the courts themselves from provisions such as s 22 of that Act. In any event, the impugned provisions of the Surrogacy 34 East [30]. 35 East [31] - [32]. 36 East [80]. -- 33 of 74 -- [2026] WASCA 65 MITCHELL & ARCHER JJA Page 34 Act do not provide for a person to act in a discriminatory way in direct compliance with an order of the Family Court. Rather, those provisions limit the capacity of the Family Court to make an order. Section 40(1)(d) of the Sex Discrimination Act has no application in these circumstances. 102 The intervenor also referred to s 31 of the Sex Discrimination Act, which provides that nothing in div 1 or 2 of that Act renders it unlawful to discriminate against a man on the ground of his sex by granting to a woman rights or privileges in connection with pregnancy, childbirth or breastfeeding. Section 31 is not concerned with discrimination on the ground of sexual orientation and need not be further considered in the present context. Whether s 19 requires the Family Court to unlawfully discriminate 103 The applicants contend that s 19(2) of the Surrogacy Act discriminates against arranged parents on the ground of sex, in that only a woman may be an 'eligible person', and on the ground of sexual orientation, in that only two people of opposite sexes may be an 'eligible couple'. It is convenient to focus on the claim of discrimination on the ground of sexual orientation in disposing of the present application. Less favourable treatment 104 Where neither member of a couple is an 'eligible person', the couple must be an 'eligible couple' to be able to apply for a parentage order under s 20(1) of the Surrogacy Act. For two people to be an 'eligible couple' as defined in s 19(2) of the Surrogacy Act, they must be of opposite sexes and unable, as a couple, to conceive a child due to medical reasons. To that extent, the Surrogacy Act requires the Family Court to treat same- sex couples less favourably than different-sex couples in circumstances which are the same or not materially different, in the manner described below. 105 A different-sex couple who, as a couple, are unable to conceive a child without assisted reproductive technology services may be eligible to apply for a parentage order. That couple may have the Family Court consider whether or not to make a parentage order that will create a parent/child relationship between them and a child born under a surrogacy arrangement. 106 By contrast, same-sex couples can never be an eligible couple because they are not '2 people of opposite sexes'. -- 34 of 74 -- [2026] WASCA 65 MITCHELL & ARCHER JJA Page 35 107 All same-sex male couples, and many same-sex female couples, who, as a couple, are unable to conceive a child without assisted reproductive technology services are therefore ineligible to apply for a parentage order. No same-sex male couples will be eligible to apply for a parentage order because they fall outside the definition of 'eligible person' and 'eligible couple'. A same-sex female couple may be eligible to apply for a parentage order if one of them is an 'eligible person'. However, where neither member of a same-sex female couple is an 'eligible person', they cannot apply for a parentage order as an 'eligible couple'. The result is that same-sex couples who are generally unable, as a couple, to conceive a child without assisted reproductive technology services are denied the opportunity given to different-sex couples in the same position. 108 In this way, the Surrogacy Act requires the Family Court to discriminate against same-sex couples, treating them less favourably than it would treat different-sex couples in the same or not materially different circumstances. The Surrogacy Act requires the Family Court to discriminate against same-sex couples on the ground of their sexual orientation by refusing to provide them with the service of considering whether or not to make a parentage order. Whether less favourable treatment is by reason of sexual orientation 109 This less favourable treatment of same-sex couples required by the Surrogacy Act is 'by reason of' the sexual orientation of the couple within the meaning of s 5A of the Sex Discrimination Act. The phrase 'by reason of' requires a relationship of cause and effect between the protected characteristic (here, sexual orientation) and the discriminator's less favourable treatment of the aggrieved person.37 This causal element is satisfied in the present case. A same-sex couple is, by definition, comprised of two people of the same sex so that, at least ordinarily, their inability, as a couple, to conceive a child will not be 'due to medical reasons'. That the couple are not of 'opposite sexes' and that there are non-medical reasons for their inability, as a couple, to conceive a child, is the consequence of the members of the couple acting in accordance with their sexual orientation. Two people who form a relationship in accordance with their sexual orientation towards persons of the same sex are for that reason ineligible to apply for a parentage order as an 'eligible couple'. 37 Human Rights and Equal Opportunity Commission v Mount Isa Mines Ltd (1993) 46 FCR 301, 321 - 322 (Lockhart J), applied in Rohner v Scanlan (1998) 86 FCR 454, 458 (Keifel J, Drummond and Finkelstein JJ agreeing). -- 35 of 74 -- [2026] WASCA 65 MITCHELL & ARCHER JJA Page 36 Whether the circumstances of a same-sex couple are materially different 110 Unless one of the persons in a same-sex couple has sexual organs not generally associated with their sex, a same-sex couple, as a couple, will lack the sexual organs required to conceive a child together. This is not a material difference which can justify different treatment of those couples. The evident purpose of requiring that a couple be unable, as a couple, to conceive a child due to medical reasons is to prevent couples who are able to conceive without assisted reproductive technology services choosing to enter into surrogacy arrangements for convenience. This requirement does nothing to advance that legislative policy in the case of a same-sex couple whose inability, as a couple, to conceive a child without assisted reproductive technology services is a matter of biology rather than choice. As such, the requirement is designed to address a problem which is not presented by a same-sex couple (unless one of them does not have the sexual organs generally associated with their sex). The only practical effect of requiring a same-sex couple to be unable to conceive a child due to medical reasons is to establish a criterion for applying for a parentage order that the same-sex couple can ordinarily never satisfy. 111 That some same-sex couples might be able to conceive because one person does not have sexual organs generally associated with their sex does not affect this conclusion. Section 5A(1)(b) of the Sex Discrimination Act provides that discrimination can occur by reason of a characteristic that appertains generally to persons who have the same sexual orientation as the aggrieved person. It is a general characteristic of same-sex couples that they have the same sexual organs as their partner. 112 Further, the circumstances of the person alleged to have suffered discriminatory treatment which are related to the prohibited ground are to be excluded from the circumstances of the comparator.38 As was noted in a passage quoted by Toohey J in IW,39 and adopted by all members of the Full Court of the Federal Court in Commonwealth v Human Rights and Equal Opportunity Commission:40 [I]t would fatally frustrate the purposes of the [Sex Discrimination Act] if the matters which it expressly identifies as constituting unacceptable bases for differential treatment ... could be seized upon as rendering the 38 Addy v Federal Commissioner of Taxation [2021] HCA 34; (2021) 273 CLR 613 [30]; Athwal v The State of Queensland [2023] QCA 156; (2023) 16 QR 218 [119] (Mitchell AJA, Mullins P agreeing). 39 IW (33). 40 Commonwealth v Human Rights and Equal Opportunity Commission (1993) 46 FCR 191, 194 (Black CJ), 205 - 206 (Lockhart J) and 209 (Wilcox J). -- 36 of 74 -- [2026] WASCA 65 MITCHELL & ARCHER JJA Page 37 overall circumstances materially different, with the result that the treatment could never be discriminatory within the meaning of the [Sex Discrimination Act]. The fact that the couple are of the same sex is the consequence of the couple acting on their sexual orientation towards persons of the same sex. To treat the biological incapacity of same-sex couples to conceive a child as a material difference justifying different treatment of those couples would be inconsistent with the scheme of the Sex Discrimination Act.41 Conclusion as to unlawful discrimination 113 Section 19 and associated provisions of the Surrogacy Act therefore require the Family Court to discriminate against same-sex couples on the ground of their sexual orientation by refusing to provide them with the service of considering whether or not to make a parentage order in relation to a child born under a surrogacy arrangement. In that way, s 19 and associated sections of the Surrogacy Act require the Family Court to act in a way which is unlawful under s 22 of the Sex Discrimination Act. 114 We note that this conclusion is consistent with decisions made in cases decided when s 22 of the Sex Discrimination Act prohibited discrimination on the ground of marital status, but not sexual orientation. Those cases found that State legislation limiting access to fertility treatment to women who were married or in a de facto relationship were directly inconsistent with s 22 of the Sex Discrimination Act.42 The decision of the Queensland Court of Appeal in JM v QFG,43 relied on by the intervenor, does not assist as it was concerned with a different State legislative regime which prohibited discrimination on the ground of 'lawful sexual activity' rather than sexual orientation. Conclusion as to inconsistency 115 In our view, s 19, s 20(1) and s 21(2)(a) of the Surrogacy Act are inconsistent with s 22 of the Sex Discrimination Act to the extent they provide that a same-sex couple cannot apply for a parentage order as an 'eligible couple'. Those provisions require the Family Court to refuse to 41 Different considerations arise under other anti-discrimination legislation, such as the Disability Discrimination Act 1992 (Cth), which focuses on a criterion of admitted difference: see Purvis v The State of New South Wales [2003] HCA 62; (2003) 217 CLR 92 [198] - [199]. 42 See Pearce v South Australian Health Commission (1996) 66 SASR 486, 490 - 491 (Williams J, Bollen and Millhouse JJ agreeing); McBain v The State of Victoria [2000] FCA 1009; (2000) 99 FCR 116, [19] - [20]. The McBain decision was the subject of the proceedings in McBain HCA. See also EHT18 v Melbourne IVF [2018] FCA 1421; (2018) 263 FCR 376 [107] - [122], where a requirement for the husband of a married women to consent to an assisted reproductive procedure was held to be inconsistent with s 22 of the Sex Discrimination Act by requiring the provider to discriminate on the basis of marital status. 43 JM v QFG [1998] QCA 228; [2000] 1 Qd R 373. -- 37 of 74 -- [2026] WASCA 65 MITCHELL & ARCHER JJA Page 38 provide the service of considering whether or not to make a parentage order to a same-sex couple on the ground of their sexual orientation. As such, they require the court to act in a way that is unlawful under s 22 of the Sex Discrimination Act. Section 109 of the Constitution renders s 19, s 20(1) and s 21(2)(a) of the Surrogacy Act inoperative so far as they require a couple to be two people of opposite sexes before they can apply to the Family Court for a parentage order as an eligible couple. Those provisions are also inoperative so far as they require a same-sex couple to be unable, as a couple, to conceive a child due to medical reasons before they can apply to the Family Court for a parentage order as an eligible couple. Orders 116 For the above reasons, the Council made a jurisdictional error of law by misapprehending the nature of its statutory function in finding that it could not approve the applicants' surrogacy arrangement due to the arranged parents not being an eligible couple. The status of the arranged parents as an eligible couple did not restrict the Council's power to approve a surrogacy arrangement. Further, s 19(2) of the Surrogacy Act is inoperative for inconsistency with s 22 of the Sex Discrimination Act, under s 109 of the Constitution, to the extent that it would deny Bradley and Trent Dunn the status of an eligible couple. The Surrogacy Act applies to a same-sex couple such as Bradley and Trent Dunn as if the words 'of opposite sexes' and 'due to medical reasons not excluded by subsection (3)' were omitted from the definition of 'eligible couple' in s 19(2) of that Act. As things stand, if the Council approves the surrogacy arrangement, Bradley and Trent Dunn will be able to apply for a parentage order in relation to a child born under the surrogacy arrangement. The grant of relief by way of judicial review by this court will not lack utility in these circumstances. There is no other discretionary reason to deny relief.44 117 Therefore, we would grant a writ of certiorari to quash the Council's decision to refuse to approve the surrogacy arrangement. We would also grant a writ of mandamus to require the Council to deal with the undetermined application for approval of the applicants' surrogacy arrangement. 44 At the hearing of the application, counsel for the intervenor abandoned a submission that the application lacked utility by reason of s 23 of the HRT Act (see appeal ts 60). -- 38 of 74 -- [2026] WASCA 65 VAUGHAN JA Page 39 VAUGHAN JA: Overview 118 The first applicants are a married couple. They wish to become parents through a surrogacy arrangement in which they are the designated 'arranged parents'. Having identified 'birth parents' (the second applicants) and a 'donor' (the third applicant) - and all parties having undertaken counselling, being assessed to be psychologically and medically suitable and having received independent legal advice - the first applicants sought the respondent Council's written approval of the surrogacy arrangement under s 17 of the Surrogacy Act 2008 (WA). The Council accepted that the application met the requirements of s 17 but nonetheless refused to approve the surrogacy arrangement. 119 The respondent Council stated: [I]t is the majority view of the Council that, under the current legislation - specifically s 19(2) of the Act that restricts parentage orders to couples who are of opposite sexes - the proposed surrogacy arrangement application cannot be approved at this time. 120 Section 19 of the Surrogacy Act does not, by its terms, deal with the requirements for the respondent Council to approve a surrogacy arrangement. Rather, s 19 is concerned with the transfer of a child's parentage - in particular s 19 is concerned with the circumstances in which an application can be made for a parentage order. Ignoring aspects of s 19(1) that do not relevantly arise, an application can be made for a parentage order under div 3 of pt 3 of the Act only if the arranged parents are an 'eligible couple' (see s 19(1)(b)). By s 19(2) an eligible couple means '2 people of opposite sexes who are married to … each other'. The first applicants are not two people of opposite sexes. They are a same-sex male homosexual married couple. 121 Accordingly, the respondent Council refused to approve the surrogacy arrangement because the first applicants are a same-sex married couple rather than two people of opposite sexes who are married to each other. 122 The applicants applied for judicial review of the respondent Council's decision. Smith AuJ ordered that the application be heard by the Court of Appeal. Broadly speaking, the applicants say that the Council's decision is invalid and of no legal force or effect because it is vitiated by jurisdictional error. The applicants contend that the Council misconstrued the Surrogacy Act in such a way as to misapprehend the -- 39 of 74 -- [2026] WASCA 65 VAUGHAN JA Page 40 nature of the function it was performing and the extent of its powers in the circumstances of the case. 123 Two grounds are identified in the application. The applicants claim: 1. The respondent Council's power under s 17 of the Surrogacy Act to approve the surrogacy arrangement is not restricted by the first applicants' ineligibility to seek a parentage order under div 3 of pt 3 of the Act (ground 1). 2. Further or alternatively, to the extent that s 19(2) of the Surrogacy Act purports to render the first applicants ineligible to apply for or obtain a parentage order because they are of the same sex, it is 'invalid pursuant to s 109 of the Commonwealth Constitution as inconsistent with s 22 of the Sex Discrimination Act 1984 (Cth)' (ground 2). 124 I would uphold ground 1. However, for the reasons that follow, I would dismiss ground 2. This is because, in my opinion, the Family Court of Western Australia is not a 'person' providing a 'service' for the purpose and within the meaning of s 22 of the Sex Discrimination Act so far as it considers and determines whether to make a parentage order under the Surrogacy Act. It follows that, in the exercise of discretion, I would decline the prerogative relief sought. There is no utility in granting the writs of certiorari and mandamus sought by the applicants in circumstances where ground 2 fails. The background facts and statutory framework 125 I adopt the statement of the background facts contained in the joint reasons of Mitchell and Archer JJA. 126 Mitchell and Archer JJA also set out a detailed exposition of the relevant statutory framework. I will not restate all of those matters. I rely on what is developed in the joint reasons. However, it is necessary that I refer to particular aspects of the Surrogacy Act and the Sex Discrimination Act. I will do so only so far as is necessary for my separate reasons. 127 I will not repeat the critical defined term of 'surrogacy arrangement' in s 3 of the Surrogacy Act (see [17] above). Nor is it necessary to refer to pt 2's provisions dealing with surrogacy arrangements. It suffices to turn straight to pt 3 dealing with orders that give parental status to arranged parents. Section 12 explains what pt 3 is about in the following terms: -- 40 of 74 -- [2026] WASCA 65 VAUGHAN JA Page 41 This Part [ie pt 3] is to enable the court to transfer, from the birth parents to the arranged parents, the parentage of a child born under a surrogacy arrangement in certain circumstances. 128 The 'court' means the Family Court of Western Australia (s 14). To distinguish the Family Court of Western Australia from this court I will refer to it as the 'Family Court'. It will be seen that the Surrogacy Act empowers the Family Court to transfer the parentage of a child born under a surrogacy arrangement from birth parents to arranged parents by means of a 'parentage order'. A parentage order means an order that the Family Court makes under pt 3 transferring the parentage of a child (s 14). 129 A parentage order is made by the Family Court under s 21(1) of the Surrogacy Act on an application made under s 20(1) of the Act. The effect of a parentage order is provided for in s 26 of the Act (as reproduced in part at [30] above). Relevantly, a parentage order has the effect that, for the purpose of the law of Western Australia, the relationship between the child and the arranged parents is treated as that of child and parent; and the relationship between the child and the birth parents is treated as not being that of child and parent. In that sense parentage of the child is transferred. 130 Conformably with s 26 of the Surrogacy Act, the definition of 'parent' in s 5 of the Interpretation Act 1984 (WA) includes 'a person who is a parent in a relationship of parent and child that arises because of a parentage order under the Surrogacy Act'. 131 While the Surrogacy Act uses the language of 'transfer', 'transferring' and 'transferred' throughout pt 3, this is not a transfer in the usual sense. A parentage order has a dual effect that changes the status of the relationship between the child, the birth parents and the arranged parents. It severs the legal relationship of child and parent between the child and his or her birth parents. And it substitutes a new legal relationship of child and parent between the child and his or her arranged parents. A parentage order is ordinarily permanent - it is of lifelong effect and standing. In these various respects there is a clear analogue between a parentage order under the Surrogacy Act and an adoption order under the Adoption Act 1994 (WA) (see in particular s 75 of the Adoption Act). 132 The transformative nature of a parentage order under the Surrogacy Act, and its high degree of permanence, means that there is a qualitative difference between a parentage order and a 'parenting order' under the Family Law Act 1975 (Cth) or the Family Court Act 1997 (WA). -- 41 of 74 -- [2026] WASCA 65 VAUGHAN JA Page 42 133 In deciding whether to make a particular decision concerning a parentage order or a proposed parentage order the Family Court must regard the best interests of the child as the paramount consideration (s 13(1)). In this respect: [It] is presumed to be in the best interests of the child for the arranged parents to be the parents of the child, unless there is evidence to the contrary (s 13(2)). 134 The paramountcy of the best interests of the child is reinforced by s 21(2)(g). Section 21(2), which is within div 3 of pt 3 dealing with the transfer of a child's parentage, identifies each matter that the Family Court has to be satisfied of before it makes a parentage order. By s 21(2)(g) the Family Court has to be satisfied that it is in the best interests of the child for it to make the proposed parentage order. 135 The provisions of div 2 of pt 3 of the Surrogacy Act have the effect of excluding the possibility of a parentage order in relation to certain surrogacy arrangements. 136 Subject to s 16(2) - a provision that is effectively without practical operation - a parentage order cannot be made unless the surrogacy arrangement has been approved by the Council under s 17 of the Surrogacy Act (s 16(1)). Section 17 provides for the requirements for a surrogacy arrangement to be approved. The Council may approve a surrogacy arrangement 'only if' prescribed requirements are met concerning: the birth mother (s 17(a)); the existence of a signed written agreement as to the arrangement (s 17(b); counselling, assessment as to the parties' psychological suitability and independent legal advice (s 17(c)); assessment as to the parties' medical suitability (s 17(d)); and the intended birth mother not yet becoming pregnant under the arrangement (s 17(e)). 137 Accordingly, a parentage order cannot be made in respect of a child unless the surrogacy arrangement has the respondent Council's written approval under s 17 of the Surrogacy Act; and no such written approval will be forthcoming unless the requirements of s 17 are satisfied (which include that the arrangement has not yet reached the point of the intended birth mother becoming pregnant). 138 Section 19 of the Surrogacy Act, which the first applicants say is partially invalid in its operation to them due to inconsistency with s 22 of the Sex Discrimination Act, is found in div 3 of pt 3 of the Act. Division 3 deals with the transfer of a child's parentage where a parentage order is not excluded by the operation of a provision within -- 42 of 74 -- [2026] WASCA 65 VAUGHAN JA Page 43 div 2 of the Surrogacy Act. More specifically, s 19 provides for the circumstances in which an application can be made under pt 3 for a parentage order. The material parts of s 19 are reproduced in the joint reasons (see [22] - [23] above). Two of various other requirements ought to be noted. An application for a parentage order can be made only if: (1) the arranged parents reside in Western Australia (s 19(1)(a)); and (2) when the surrogacy arrangement was entered into, or after that time but before the application is made, the arranged parents are an 'eligible couple' or one of the arranged parents (or the arranged parent if there is only one) is an 'eligible person' (s 19(1)(b)). 139 Neither of the first applicants is an 'eligible person'; that term only encompasses 'a woman' who meets particular criteria (s 19(2)). Nor are the first applicants an 'eligible couple' as defined. That term means (s 19(2)): 2 people of opposite sexes who are married to, or in a de facto relationship with, each other and who, as a couple: (a) are unable to conceive a child due to medical reasons not excluded by subsection (3); or (b) although able to conceive a child, would be likely to conceive a child affected by a genetic abnormality or a disease. (emphasis added) 140 Section 20(1) contemplates the arranged parents applying for a parentage order, in accordance with s 20 more generally, in the circumstances described in s 19 and on the proviso that the order would not be prevented by s 16 (ie standing to apply for a parentage order is conditional on the respondent Council having approved the surrogacy arrangement under s 17). Various other procedural requirements are prescribed in s 20. Only one need be mentioned. By s 20(3) the application for a parentage order cannot be lodged with the Family Court more than 6 months after the child is born unless the Family Court grants leave to do so - leave 'may be given in exceptional circumstances'. 141 I have already mentioned that the Family Court may, on an application under s 20(1) of the Surrogacy Act, make a parentage order under s 21(1) of the Act. Before it makes a parentage order the Family Court, by s 21(2), has to be satisfied of a list of matters. The Family Court must be satisfied that: (a) the circumstances that section 19 requires for applying for a parentage order exist; and -- 43 of 74 -- [2026] WASCA 65 VAUGHAN JA Page 44 (b) except to the extent that subsection (3) authorises the court to dispense with the requirement for a birth parent to have received the counselling, the child's birth parents and the arranged parents have received appropriate counselling about the effect of the proposed order; and (c) except to the extent that subsection (3) authorises the court to dispense with the requirement for a birth parent to have received the advice, the child's birth parents and the arranged parents have received independent legal advice about the effect of the proposed order; and (d) except to the extent that subsection (3) authorises the court to dispense with the requirement for a birth parent's consent, the child's birth parents freely consent to the making of the order; and (e) except in circumstances identified in subsection (4), the child was, when the application for the order was lodged with the court, and is, when the court makes the proposed order, in the day to day care of the arranged parents; and (f) except to the extent that subsection (3) authorises the court to dispense with the requirement for a birth parent to have agreed, the child's birth parents and the arranged parents have agreed in writing to an appropriate plan (the approved plan) in accordance with section 22; and (g) it is in the best interests of the child for the court to make the proposed order. 142 Various of the listed requirements may be dispensed with under s 21(3) or s 21(4) of the Surrogacy Act. But the dispensation power is not at large. Any of the requirements in s 21(2)(b) - (f) may be dispensed with where the birth mother is not the child's genetic parent and at least one arranged parent is the child's genetic parent. The requirements in s 21(2)(b) - (d) and (f) may also be dispensed with where a birth parent is deceased or incapacitated or, despite having made reasonable efforts, the arranged parents have been unable to contact a birth parent. 143 An 'approved plan' that is required for the Family Court's satisfaction in accordance with s 21(2)(f) of the Surrogacy Act has to adequately balance the rights and responsibilities of the parties to the plan; promote the child's long-term welfare; and be reasonable in the circumstances (s 22(1)). Among other things, the plan must set out details of any time that the child is to spend, or communication that the child is to have, with the birth parties and any information that any of the parties is to provide to another party or any other person (s 22(2)). -- 44 of 74 -- [2026] WASCA 65 VAUGHAN JA Page 45 144 In certain circumstances the Family Court may approve variation of the approved plan (s 30) and may deal with a breach of the approved plan (s 31). In particular, by s 31(1), where the Family Court is satisfied that a breach of an approved plan has occurred or is likely to occur, it may: (a) order the parties to the plan to participate in a mediation process; or (b) exercise its powers under the Family Court Act 1997, as it thinks fit, to enforce a provision of the plan as if the provision were an order made by the court under that Act. 145 This includes dealing with a breach of a provision of the approved plan as if the person in breach had contravened an order made by the Family Court under the Family Court Act 1997 (WA) or had been in contempt of the Family Court (s 31(2)). 146 Where a parentage order is made the Family Court is to declare, by the same order, the name by which the child is to be known (s 25(1)). Particular principles apply where it is proposed to make an order changing the child's name (s 25(2)). When a parentage order is made the Family Court may also, by s 23, make: any consequential or ancillary order it thinks fit in the interests of justice or for the welfare and in the best interests of the child whose parentage would be affected. 147 In certain circumstances the Family Court may discharge a parentage order (s 27). Putting aside such a discharge application, a parentage order cannot be appealed against, reviewed, called into question or affected by any court other than pursuant to s 211(3) of the Family Court Act. Section 211(3) provides for an appeal to lie from the Family Court in its non-federal jurisdiction to this court. 148 By ground 2 of the judicial review application the first applicants contend that part of s 19 of the Surrogacy Act is invalid in its operation to them due to inconsistency with s 22 of the Sex Discrimination Act. Based on the statutory framework of the Surrogacy Act, as previously referred to, that contention of operational inconsistency must flow through to s 20(1) and s 21(2)(a) of the Surrogacy Act so far as those provisions rely on s 19. 149 The joint reasons address the wider statutory context relevant to s 22 of the Sex Discrimination Act. Section 22 itself provides: It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against -- 45 of 74 -- [2026] WASCA 65 VAUGHAN JA Page 46 another person on the ground of the other person's sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, or breastfeeding: (a) by refusing to provide the other person with those goods or services or to make those facilities available to the other person; (b) in the terms or conditions on which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person; or (c) in the manner in which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person. (emphasis added) 150 The applicants contend, among other things, that the Family Court is a 'person who … provides services' for the purpose and within the meaning of s 22 of the Sex Discrimination Act when, in accordance with its jurisdiction under s 21(1) of the Surrogacy Act, the Family Court considers and decides whether to make a parentage order on an application made under s 20(1) of the latter Act. 151 The applicants' contention begs the question as to what, precisely, is the alleged 'service' that the Family Court is being said to provide. In oral submissions senior counsel for the applicants identified the alleged service in terms of 'consideration and disposition' of an application for a parentage order (appeal ts 47) but seemingly emphasised the result over the process, ie senior counsel emphasised the making or refusal of a parentage order (appeal ts 22, 47). However, in written submissions the applicants referred variously to the 'services … of obtaining a parentage order' (applicants' submissions, par 31), that the Family Court provided a service in 'considering and determining an application for a parentage order' (applicants' submissions, par 92) and that: in the performance of the function conferred on the Family Court under the Surrogacy Act, including the consideration of an application for and the making of or refusal to make a parentage order, the Family Court is engaged in the provision of a 'service' for the purposes of the Sex Discrimination Act … (applicants' submissions, par 71). (emphasis added) 152 The applicants say that the service is provided for and to (and thus for the benefit of) the arranged parents because the effect of a parentage order is to change their relationship to the child (applicants' reply submissions, par 46). -- 46 of 74 -- [2026] WASCA 65 VAUGHAN JA Page 47 153 The term 'services' in the Sex Discrimination Act is defined in s 4(1) of that Act. It includes, by par (e) of the definition: services of the kind provided by a government, a government authority or a local government body. 154 No definition of the word 'government' is provided in the Sex Discrimination Act. It is commonly said that there are three branches of government: the legislature, the executive and the judiciary. Similarly, it is common to refer to the exercise of the legislative, administrative and judicial functions of government. In both cases it is relevant to observe that the Sex Discrimination Act binds the Crown in each of its capacities (s 12(1)). In this respect the ordinary meaning of the 'Crown' is the monarch and the executive: Commonwealth of Australia v Anti-Discrimination Tribunal (Tasmania).45 See also Sue v Hill46 where the term 'the Crown' in identifying the government is said to refer to the executive as distinct from the legislative branch of government (ie the Ministry and the administrative bureaucracy that attends to the business of government). 155 More generally, the term 'services' includes: services relating to banking, insurance and the provision of grants, loans, credit or finance; services relating to entertainment, recreation or refreshment; services relating to transport or travel; and services of the kind provided by the members of any profession or trade (Sex Discrimination Act, s 4(1); pars (a) - (d) of the definition of 'services'). 156 The definition of 'services' is inclusive. The term extends beyond the examples provided by pars (a) - (e) of the s 4(1) definition. How far the concept of 'services' extends is critical to the proper disposition of the judicial review application. The issues for determination 157 The applicants' grounds in support of the application for judicial review raise two main issues: 1. Whether, properly construed, s 17 of the Surrogacy Act is subject to an implied limitation to the effect that the respondent Council is not empowered to approve a surrogacy arrangement where the arranged parents are not an 'eligible couple' as they are not two 45 Commonwealth of Australia v Anti-Discrimination Tribunal (Tasmania) [2008] FCAFC 104; (2008) 169 FCR 85 [121]. 46 Sue v Hill [1999] HCA 30; (1999) 199 CLR 462 [87]. -- 47 of 74 -- [2026] WASCA 65 VAUGHAN JA Page 48 people of opposite sexes (neither arranged parent being an 'eligible person'). See ground 1 as summarised at [123] above. 2. Whether, in their operation to the first applicants by purporting to render the first applicants ineligible to apply for and obtain a parentage order as the first applicants (although a married couple) are not two people of opposite sexes, s 19, s 20(1) and s 21(2)(a) of the Surrogacy Act are invalid pursuant to s 109 of the Constitution due to those provisions being inconsistent with s 22 of the Sex Discrimination Act. See ground 2 as summarised at [123] above. 158 The first issue - which I will refer to as the 'constructional issue' - arises from the terms of the respondent Council's refusal to approve the applicants' surrogacy arrangement under s 17 of the Surrogacy Act (see [119] above). In that respect it is readily apparent that the Council's non-approval was predicated on a majority view that the Council's approval power under s 17 was conditioned on whether the first applicants were two people of opposite sexes. That view, articulated in the terms of the refusal, was stated in clear terms in the minutes of the meeting at which the Council considered the application for approval. The Council recorded: • That the surrogacy arrangement does meet all requirements under section 17 of the Surrogacy Act. • The inability for Council to approve the surrogacy arrangement due to ineligibility of arranged parents under section 19(2) of the Surrogacy Act. • Council's support for this couple to become parents but their current inability to approve the arrangement due to prohibitive sections of current legislation.47 159 Broadly speaking, two sub-issues arise in relation to the second issue (which I will refer to as the 'inconsistency issue'). First is whether, for the purpose and within the meaning of s 22 of the Sex Discrimination Act, the Family Court is a 'person who … provides … services' so far as it considers and determines whether to make a parentage order pursuant to div 3 of pt 3 of the Surrogacy Act. Second is whether, by giving effect to the impugned provisions of the Surrogacy Act according to their terms, the Family Court will, in circumstances that are the same or not materially different, treat the first applicants less favourably than it treats or would treat persons of a different sex (on the ground of the first 47 Affidavit of MD Wharfe affirmed 1 October 2025 attachment 'MW-01' (item 5.8.1) (dotpoints 5 - 7). -- 48 of 74 -- [2026] WASCA 65 VAUGHAN JA Page 49 applicants' sex) or persons of a different sexual orientation (on the ground of the first applicants' sexual orientation). 160 The parties used other formulations when identifying the issues for the court on the judicial review application. Other than in two respects these involved points of emphasis rather than matters of real distinction. What has been stated above suffices to delineate the matters for determination. I should, however, briefly explain why I consider it is not necessary to deal with two additional issues as identified by the parties. 161 The parties made written submissions on the inconsistency issue that were directed to both the Family Court and the respondent Council. I acknowledge that different considerations apply as between the Family Court and the Council. However, given the conclusions I have reached on the issues for determination as I have described them, it is not necessary to consider the inconsistency issue by reference to its application to the Council. That question is incapable of affecting my ultimate conclusion as to the proper disposition of the judicial review application. Accordingly, I do not intend to consider and determine the inconsistency issue in the context of the Council deciding whether to approve a surrogacy arrangement under s 17 of the Surrogacy Act. There is all the more so justification for this course where in oral addresses the parties concentrated their submissions on the inconsistency issue by directing the submissions to the Family Court and elected not to develop the argument as made in connection with the Council. 162 The other additional issue raised by the parties concerns the proper construction of the phrase 'unable to conceive a child due to medical reasons' in s 19(2) of the Surrogacy Act. Again, on the view I have reached on the issues for determination as I have described them, that question is incapable of affecting the proper disposition of the judicial review application. Ground 1 of the judicial review application - the constructional issue 163 The constructional issue should be resolved in favour of the applicants. In this respect I agree with Mitchell and Archer JJA, for the reasons that their Honours give at [49] - [60] above, that: 1. The respondent Council's power under s 17 of the Surrogacy Act to approve a surrogacy arrangement is not conditioned by an implied limitation that requires that the arranged parents (or one of them) satisfy the statutory criteria of an 'eligible couple' (or an 'eligible person') under s 19(2) of the Act. -- 49 of 74 -- [2026] WASCA 65 VAUGHAN JA Page 50 2. However, the respondent Council has a discretion to refuse to approve a surrogacy arrangement where there is no realistic prospect of the arranged parents (or one of them) being eligible to apply for a parentage order. 3. The respondent Council misapprehended the nature of the function it was performing and the extent of its powers in the circumstances of the case when the Council considered itself to have no power to approve the applicants' surrogacy arrangement. 164 Senior counsel for the applicants stated that ground 2 was premised on the applicants having failed on ground 1 (appeal ts 10, 12, 49). That being the case it might be thought that, the applicants having succeeded on ground 1, ground 2 is at best of secondary importance. However, while accepting that it would be open to the court to just uphold ground 1 and not decide ground 2, senior counsel for the applicants invited the court to go on to determine ground 2 (appeal ts 10 - 11). 165 It is necessary to go on and determine ground 2 notwithstanding that I would uphold ground 1. 166 In succeeding on the constructional issue, and thereby making out ground 1 of the judicial review application, the applicants establish jurisdictional error. But it does not follow that the applicants are entitled to the prerogative relief sought. The relief sought is discretionary; it may be refused if no useful result would ensue. In that respect I agree with Mitchell and Archer JJA, for the reasons that their Honours give, that in the circumstances of the present case there is no realistic prospect that the Family Court will make a parentage order under s 21(1) of the Surrogacy Act unless the applicants succeed on the inconsistency issue (see [61] - [62], [64] - [65] above). 167 In the circumstances, notwithstanding the applicants' success on ground 1, I would in the exercise of discretion decline the prerogative relief sought unless the applicants succeed on the inconsistency issue. It follows that ground 2 is critical to the disposition of the application for judicial review. Ground 2 of the judicial review application - the inconsistency issue 168 The applicants put their case on the inconsistency issue in terms of direct inconsistency. They submit: 1. Section 19, s 20(1) and s 21(2)(a) of the Surrogacy Act, in their operation to a same-sex male homosexual married couple such as -- 50 of 74 -- [2026] WASCA 65 VAUGHAN JA Page 51 the first applicants, require the Family Court to discriminate on the ground of sex or sexual orientation by reason of the definitions of 'eligible couple' and 'eligible person' in s 19(2). 2. Section 22 of the Sex Discrimination Act prohibits that conduct by making it unlawful. 3. Accordingly, it is not possible for the Family Court to obey both the limitations in the Surrogacy Act on the provision of its services (ie its consideration and determination of an application for a parentage order) and s 22 of the Sex Discrimination Act. By reason of s 109 of the Constitution the limitations in the impugned provisions of the Surrogacy Act are inoperative to the extent of the inconsistency. 169 There are, as I have mentioned, two sub-issues in relation to the inconsistency issue. I will start with whether the Family Court is relevantly a 'person who … provides … services' for the purpose and within the meaning of s 22 of the Sex Discrimination Act so far as it considers and decides whether to make a parentage order. The applicants' submissions on whether the Family Court is a 'person' who provides 'services' 170 The applicants' written submissions separate out whether the Family Court is providing a 'service' and whether it is a 'person' who provides services. There is a risk that meaning will be lost in so dissecting s 22 of the Sex Discrimination Act. The statutory provision should be construed and applied as a whole. That is particularly so where these two components of the provision bear on each other. While I will summarise the applicants' submissions adopting their chosen approach I will eventually come back to resolve the issue in the composite terms I have framed. 171 By way of an overarching proposition the applicants submit that, as beneficial legislation, the Sex Discrimination Act is to be interpreted liberally or generously rather than technically. 172 The applicants point out that the word 'person' is not defined in the Sex Discrimination Act. There is, however, a relevant definition in s 2C of the Acts Interpretation Act 1901 (Cth) whereby, unless the contrary intention appears, the term includes a 'body politic or corporate' as well as an individual. The applicants acknowledge that, in other statutory contexts, there are decisions where the term 'person' has been held not to -- 51 of 74 -- [2026] WASCA 65 VAUGHAN JA Page 52 include a court.48 The applicants explain those decisions by their specific statutory context and purpose. The applicants say that the Sex Discrimination Act has a quite different statutory context and purpose. 173 The applicants submit that the term 'person' should be interpreted liberally and generously to give effects to the objects and purpose of the Sex Discrimination Act. They submit that: (1) the purpose of the Act includes treating men and women equally in all stages of procedure in courts and tribunals49 and an aim that all persons shall be equal before courts and tribunals;50 and (2) people working for Federal, State or Territory judges are included in the Act's sexual discrimination and sexual harassment protections (meaning, among other things, that judges can be liable for sexual discrimination or sexual harassment under the Act).51 Thus, according to the applicants, it would undermine the legislative objects and purpose of s 22 of the Sex Discrimination Act if a judge of the Family Court could discriminate on the basis of sex or sexual orientation when a non-judge offering the same or a similar service could not. 174 In contrast to what was otherwise a carefully and extremely well prepared and presented argument, the applicants sought to make something of the circumstance that until 1 August 2017 the Surrogacy Act was prescribed for the purpose of s 40(2B) of the Sex Discrimination Act.52 The prescription had the effect that the Surrogacy Act was exempt from the operation of s 22 of the Sex Discrimination Act. The applicants submit that it is 'at the very least persuasive' that the Commonwealth saw 48 The applicants mentioned Kizon v Palmer (1997) 72 FCR 409, 430 - 431. There are numerous High Court of Australia and other intermediate appellate court decisions to the same effect. See eg Canadian Pacific Tobacco Co Ltd v Stapleton [1952] HCA 32; (1952) 86 CLR 1, 6; Miller v Miller [1978] HCA 44; (1978) 141 CLR 269, 277 (Gibbs J) but compare (279) (Jacobs J); Hilton v Wells [1985] HCA 16; (1985) 157 CLR 57, 76, 87; John Fairfax Publications Pty Ltd v Doe (1995) 37 NSWLR 81, 111; Commissioner of Taxation v Nestle Australia Ltd (1986) 12 FCR 257, 262; Osborne v The Queen [2014] NSWCCA 17; (2014) 283 FLR 97 [6], [8] - [13], [17], [33](a); A v Independent Commission Against Corruption [2014] NSWCA 414; (2014) 88 NSWLR 240 [43]. In addition, as mentioned in Kizon v Palmer (430 - 431), there are many single judge decisions holding that a court is not a 'person' for the purpose of particular statutory provisions. See also, in the latter respect: Cowan v Stanhill Estates Pty Ltd [1966] VR 604, 606, 608 - 609; Clyne v Deputy Commissioner of Taxation [1983] 1 NSWLR 110, 117 - 118; Z v Mental Health Review Tribunal (No 2) [2022] NSWCA 131 [127]. 49 Referring to art 15(2) of the Convention on the Elimination of All Forms of Discrimination Against Women as given effect to by s 3(a) of the Sex Discrimination Act (the Convention being reproduced in the schedule to the Act). 50 Referring to art 14(1) of the International Covenant on Civil and Political Rights as given effect to by s 3(a) of the Sex Discrimination Act when read with par (b) of the definition of 'relevant international instrument' in s 4(1) of the Act. 51 Referring to the amendments enacted by the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 (Cth). See in particular Sex Discrimination Act s 14 and s 28B together with s 4(1) (definitions of 'Commonwealth employee', 'Commonwealth judicial office', 'employment', 'State employee', 'State judicial office'), s 108, s 109. 52 See Sex Discrimination Amendment (Exemptions) Regulations 2016 (Cth), sch 1 item 1. -- 52 of 74 -- [2026] WASCA 65 VAUGHAN JA Page 53 it necessary to prescribe the Surrogacy Act as exempt from the operation of s 22 of the Sex Discrimination Act (applicants' submissions, pars 65 - 66). 175 There is, in my opinion, nothing of substance that may be gleaned from the earlier exemption. The Commonwealth may have thought that there was an inconsistency issue; or the Commonwealth may simply have been providing certainty on the point so as to avoid possible litigation. Whatever the Commonwealth's motive in providing, but then removing, the exemption, it does not answer the legal question of whether the Family Court is a person who provides services so far as it considers and decides whether to make a parentage order. 176 On whether the Family Court is providing a 'service' the applicants point to the object in s 3(b) of the Sex Discrimination Act. That submission does not take the issue very far. In identifying that the objects of the Act include eliminating, so far as is possible, discrimination against persons on grounds including sex or sexual orientation in the provision of services, there is no elaboration of the concept of 'the provision of … services'. 177 The applicants identify prior decisions in which it has been held that a public body has provided a service.53 There are equally, as the intervenor submits, prior decisions in which it has been held that a public body or other governmental administrative officer has not provided a relevant service.54 There are other such prior decisions not referred to by either party in which there have been differing outcomes.55 53 Referring to Savjani v Inland Revenue Commissioners [1981] QB 458, 465 - 467 (in exercise of responsibilities as to entitlement to tax relief and in the giving of advice in relation thereto the United Kingdom Board of Inland Revenue was concerned with the provision of services to the public); AB v Registrar of Births, Deaths and Marriages [2006] FCA 1071; (2006) 235 ALR 147 (AB) [65] - [66] (alteration of a person's sex on a birth registration a service); AB v Registrar of Births, Deaths and Marriages [2007] FCAFC 140; (2007) 162 FCR 528 (AB Appeal) [25] - [29] (appeal from previous decision); Director-General, Department of Community Services v MM [2003] NSWSC 1241 [40] - [44] (dealing with an application to approve a foster carer a service). The applicants also referred to Towie v The State of Victoria [2008] VSC 177; (2008) 19 VR 640 [76] - [79]. Towie is only concerned with whether an activity was arguably a service in the context of an application for summary dismissal. Accordingly, it is of no value as a precedent for the purpose of the present application. 54 Referring to: R v Entry Clearance Officer, Bombay; Ex parte Amin [1983] 2 AC 818 (administering a voucher system enabling successful applicants to settle in the United Kingdom not a service); Rainsford v The State of Victoria [2007] FCA 1059; (2007) 167 FCR 1 (Rainsford 2007) [76], [79] - [81] (transportation of prisoners and cell allocation not a service); Robinson v Commissioner of Police (NSW) [2012] FCA 770; (2012) 292 ALR 702 [168] - [169], [178] - [182] (pursuing and arresting a person; maintaining police custody of a person; and dealing with an application for police bail, each not a service). 55 See eg: Commissioner of Police, NSW Police Service v Russell [2001] NSWSC 745 [45] (conduct of police officers charged with duty to provide arrested person with protection of his person from injury or death a service); Secretary of the Department of Justice and Industrial Relations v Anti-Discrimination -- 53 of 74 -- [2026] WASCA 65 VAUGHAN JA Page 54 178 The parties only referred to one prior decision involving the exercise of a judicial function. In that decision the New South Wales Administrative Decisions Tribunal held that the process of a magistrate hearing and making orders in respect of applications for an apprehended violence protection order (including for the parties to mediate) is not a service: Budd v State of New South Wales (Attorney General's Department).56 179 These prior decisions, and other such decisions on whether a specific governmental activity constitutes a service, provide no real assistance in the determination of whether the Family Court is a 'person who … provides … services' so far as it considers and decides whether to make a parentage order. Each of the prior decisions turns on the specific factual and legislative context of the governmental activity in issue in that case. For example, AB and AB (Appeal), on which the applicants placed much reliance as being analogous to the present case, was a much simpler case where the registrar of births, deaths and marriages was not exercising a deliberative function but was simply assessing an application against factual criteria provided for in an enactment: AB (Appeal) [28]. Budd is a decision of an administrative tribunal with limited reasoning which amounted to no more than that the magistrate was acting in a judicial role. 180 Thus, while it is appropriate to consider the leading authority of IW v City of Perth57 to see how the question of 'services' has been approached as a matter of principle, nothing of substance is gained by surveying the specific outcomes in the prior decisions. 181 In substance, the applicants submit that the relevant test is whether the Family Court is carrying out 'an act of helpful activity' (applicants' submissions, par 74 - see also par 67). In so doing the applicants apparently adopt the dictionary definition identified by Brennan CJ and McHugh J in IW v City of Perth: The term 'services' has a wide meaning. The Macquarie Dictionary relevantly defines it to include 'an act of helpful activity' … (11). Commissioner [2003] TASSC 27; (2003) 11 Tas R 324 [53] - [54] (refusal by DPP to exercise statutory prosecutorial discretion against an alleged offender not a service); Commissioner of Police v Mohammed [2009] NSWCA 432; (2009) 262 ALR 519 [49] (the provision or refusal of services can occur when police engage in conduct in the context of a request for assistance in relation to possible criminal activity where protection of persons or property may be required; so too the detection and prevention of crime can constitute a service); Gibson v Northern Territory of Australia [2024] NTSC 13; (2024) 386 FLR 70 [57] (decision to transfer between detention centres not a service). 56 Budd v State of New South Wales (Attorney General's Department) [2007] NSWADT 112 [48], [54]. 57 IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1. -- 54 of 74 -- [2026] WASCA 65 VAUGHAN JA Page 55 (See also, to similar effect, Kirby J in IW (69); Sundberg J in McBain v The State of Victoria;58 and Heerey J in AB [65].) 182 The making of a parentage order is submitted to be a helpful activity - one carried out at the request of, and conferring a benefit on, the arranged parents (as well as the child). The applicants say that only the government could possibly provide this service (ie the service of altering the legal status and relationship of parent and child). They say there is no principled basis why the activity should be deemed not to be the provision of a service merely because it is provided by a court rather than some other arm of government - in part this is because such a function might have been performed by an administrative officer in the executive branch of government. 183 The applicants say that they do not need to, and do not, contend that the Family Court provides a service whenever it considers and determines any matter within its jurisdiction. They emphasise that in making a parentage order the Family Court is not quelling a controversy involving the rights and liabilities of adversarial parties. Nor is the Family Court adjudging and punishing criminal guilt. The limited contention is that in the performance of its function to consider an application for and in the making of or refusal to make a parentage order the Family Court is engaged in the provision of a 'service'. Those things are said to constitute a service 'of the kind provided by a government … [or] a government authority' (Sex Discrimination Act, s 4(1) definition of 'service'). 184 The applicants rely on the process for and the nature of a parentage order. They say that: the default position is that there is no dispute for the Family Court to determine - there are no other parties and no contradictor; the proceedings are not heard in open court (Surrogacy Act, s 43(2)); and access to the records is restricted (Surrogacy Act, pt 3 div 4). The applicants assert that, while the Family Court arguably has a residual discretion, it is difficult to see when such a discretion would be exercised where all preconditions are satisfied. They characterise the Family Court's function as one of 'ratification' and say that the circumstance that it is a court in which this 'function of ratification' is vested should not distract from the proper characterisation of the service provided by the 'ratification' (applicants' submissions, par 73). 185 Ultimately the applicants say that construing the term 'services' to include the Family Court's function in making a parentage order would 58 McBain v The State of Victoria [2000] FCA 1009; (2000) 99 FCR 116 [10]. -- 55 of 74 -- [2026] WASCA 65 VAUGHAN JA Page 56 promote the purpose and objects of the Sex Discrimination Act. They say that, given the purpose and objects of the Act, it is difficult to see why the Family Court should be permitted to discriminate on the basis of sex or sexual orientation whereas, had the function been vested in an administrative officer in the executive branch of government, he or she could not. The intervenor's submissions on whether the Family Court is a 'person' who provides 'services' 186 The intervenor accepts that the Sex Discrimination Act is remedial legislation to be interpreted liberally or generously. The intervenor says, however, that this cannot justify characterising an activity as a 'service' where the word is not ordinarily capable of applying to the activity. 187 A 'service' is said to be something done for, or for the benefit of, those receiving it - the purpose of the activity is significant. So far as the word 'service' does not stand alone in s 22 of the Sex Discrimination Act, and the relevant expression is the compound 'goods or services', the intervenor says that the word will not in this context include activities in the discharge of government functions or statutory duties which do not have as their primary or sole function meeting the needs of consumers. Separately the intervenor relies on various statements in Rainsford 2007 [77] and Robinson [180]. Those statements are, in my view, reflective of the circumstances in those prior decisions and are not of general application. At the least the statements relied on are of limited assistance to the present case. 188 Ultimately the intervenor suggests that whether governmental activity is properly characterised as a 'service' depends on an assessment of the nature and purpose of the activity in question. The intervenor then suggests, somewhat absolutely, that it is untenable for the applicants to contend that a court could provide a service to or for the benefit of the litigants before it. This is because, in the intervenor's submission, all work of all courts is for the benefit of the public and society as a whole and has a public dimension even in the resolution of private proceedings. The authorities - IW v City of Perth 189 In IW v City of Perth the High Court of Australia considered the meaning of the term 'service' in the Equal Opportunity Act 1984 (WA). For present purposes the provisions of that Act - and particularly its use of the term 'service' - are substantially comparable with those of the Sex Discrimination Act. Relevantly, the inclusive definition of the term 'services' was substantially identical to the definition of 'services' in -- 56 of 74 -- [2026] WASCA 65 VAUGHAN JA Page 57 s 4(1) of the Sex Discrimination Act. A discrimination claim was brought on behalf of an incorporated association whose membership was confined to people who were HIV positive. The association had been refused planning approval to build a daytime drop-in centre for people infected or affected with HIV. The claimant, a member of the association, alleged that the decision discriminated against the group on the basis that the City refused approval because many of those who would be attending the premises were HIV infected. 190 It can be seen from this short statement of the facts that the alleged services in IW were substantially different from the alleged services in the present case. Accordingly, the result in IW is only of passing relevance to the proper disposition of the present case. The significance of IW is to the statements of principle, and the differing approaches, of the various members of the High Court who determined IW. 191 A majority of the High Court found against the association. However, the majority took a different view on whether the City of Perth was engaged in providing a service. 192 Brennan CJ and McHugh J held that, although the definition of 'services' was wide, it was not capable of including a refusal to exercise the relevant statutory discretion to approve the planning use of the premises (11). In their Honours' view, the City did not provide any service of giving or refusing approvals. The City had a duty to consider applications and a discretionary power to refuse or approve applications for planning approval either unconditionally or on conditions. Brennan CJ and McHugh J accepted that approval of an application conferred a benefit on the applicant. But it misdescribed the process to say that the City provided a service of giving approvals. This was because the 'granting or refusal of an application was the end result of a deliberative process' (17). 193 Brennan CJ and McHugh J also dealt separately with an argument which had not been considered at the primary hearing - that being whether the process which the City undertook in considering and ultimately refusing or approving applications constituted a service. This argument was also rejected. Their Honours stated: But not every process or activity which results in a benefit or advantage to an individual is a service that is provided to that individual. When the deliberative and quasi-judicial nature of the application process is identified and analysed, it cannot sensibly be described as a 'helpful activity' provided by the Council to applicants for planning approval. The Council is an adjudicator, not a servant of an applicant (18). -- 57 of 74 -- [2026] WASCA 65 VAUGHAN JA Page 58 194 Dawson and Gaudron JJ, also members of the majority, held that there was no refusal to provide services (22), (24). The relevant service was identified as the exercise of the discretion to grant or withhold planning approval - the claim was thus foreclosed by the very matter the subject of the complaint (24). The service was one of considering 'whether or not approval should be granted' (24). However, in so finding Dawson and Gaudron JJ accepted that the City was providing a service to residents, stating with minimal elaboration that the word 'services' in its ordinary meaning was apt to include the administration and enforcement of the City's planning scheme (23). 195 Gummow J was the final member of the majority. His Honour concluded that the City provided services in dealing with applications for planning approval and did so whether it granted or refused a particular application for approval; but held that the City had not refused to provide those services (44 - 45). Gummow J also found that the claimant was not an aggrieved person for the purposes of the Act (45) (Dawson & Gaudron JJ agreed with Gummow J on this issue (22), (24 - 25)). 196 Insofar as the members of the majority differed on whether there was relevantly a 'service' there is no clear ratio decidendi to be drawn from IW on whether the City was providing a service. 197 While, strictly, there is no ratio decidendi on the point, it should not be overlooked that the minority also found that the City was providing a service. 198 Toohey J saw the service as being not in the consideration of the planning approval application but in its disposition - which either provided or refused the service (28) (see also at (29)). Kirby J considered that the better construction of the word 'services', read in its context, was that it included the provision of a local government body of a planning decision to alter the permissible use of premises (72) - the relevant services being the provision of the approval to develop premises for a different use (73). In so doing Kirby J dealt with the construction issue. Separately, Kirby J would have applied a measure of appellate restraint in departing from the conclusion as to 'services' which had found universal favour at all earlier stages of the litigation (75) (see also (57), (71)). 199 Thus, while numerically a majority of the High Court considered that there was a service, there was no majority view as to the particular service that was being provided by the City. Dawson and Gaudron JJ, and separately Gummow J, identified the service in terms of the -- 58 of 74 -- [2026] WASCA 65 VAUGHAN JA Page 59 consideration of or dealing with the application for planning approval. Toohey J and Kirby J identified the service in terms of the disposition of the application for planning approval. That difference was critical in their Honours' respective conclusions as to the proper disposition of the case. 200 IW, although instructive, is qualitatively different to the present case. IW was concerned with a public function of a local government body. In the usual course such a public body often provides services to the ratepayers and residents of its local government area. Brennan CJ and McHugh J listed common examples of such services (12). Also, as with par (e) of the s 4(1) definition of 'services' in the Sex Discrimination Act, the definition of 'services' in the Equal Opportunity Act included services of the kind provided by 'a local government body'. Accordingly, it was clear that the definition included the kind of services provided by a body such as the City. That was material to the analysis of both Toohey J (27) and Kirby J (73 - 74). 201 By contrast to IW, the present case is not concerned with a local government body - it is concerned with jurisdiction that has been granted to the Family Court. 202 Before departing from IW, I should mention Brennan CJ and McHugh J's reference to the term 'services' as including 'an act of helpful activity' (11). In determining whether there is a service, subsequent cases have considered whether an act involves a helpful or beneficial activity. This may, in a particular case, be a useful test, but only in a qualified way. Most activities are helpful or beneficial to someone. That alone does not make them services. The question is whether the act is helpful or beneficial to the relevant class of persons to which the person alleging discrimination belongs: Rainsford 2007 [73]. Consideration and determination - the Family Court is not relevantly a 'person' providing 'services' 203 It must be accepted that the Sex Discrimination Act is beneficial legislation. The preamble to the Act recognises, among other things, the need to prohibit, so far as possible, discrimination against people on the ground of sex or sexual orientation in the provision of services. The preamble also affirms that: [E]very individual is equal before and under the law, and has the right to the equal protection and equal benefit of the law, without discrimination on the ground of sex [or] sexual orientation[.] -- 59 of 74 -- [2026] WASCA 65 VAUGHAN JA Page 60 204 The object in s 3(b) of the Sex Discrimination Act is consistent with this aspect of the preamble. Other relevant objects of the Act are that it seeks to promote recognition and acceptance within the community of the principle of the equality of men and women (s 3(d)) and to achieve, so far as practicable, substantive equality between men and women (s 3(e)). 205 Beneficial and remedial legislation, like the Sex Discrimination Act, is to be given a liberal or generous construction: Waters v Public Transport Corporation;59 IW (12), (27), (39), (58), (72 - 73); AB (Appeal) [10]. In construing such legislation the court has a special responsibility to take account of and give effect to its statutory purpose: Waters (359). However, this liberal approach to construction cannot be taken too far; the legislation cannot be given a construction that is unreasonable or unnatural: IW (12), (15). As Brennan CJ and McHugh J stated, the legislature has 'deliberately confined the application of anti- discrimination legislation to particular fields and particular activities within those fields': IW (15). At all times it is necessary to observe the caution mentioned by the plurality in New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act: [T]o commence the process of construction by posing the type of construction to be afforded - liberal, broad or narrow - may obscure the essential question regarding the meaning of the words used. It is one thing to say that no restricted construction should be given to legislation which confers benefits; but if the focus is on the meaning of specific words, the circumstance for a liberal application may not arise.60 206 In short, the court must faithfully give effect to the text and structure of the Sex Discrimination Act without any preconception as to its scope: IW (15). 207 In potentially differentiating between a 'person' and a 'court' there must be identification of what is meant by a 'court'. In Lane v Morrison French CJ and Gummow J stated that the noun 'court' is used in varied contexts and in many senses.61 Their Honours referred to the following statement by McHugh JA in Australian Postal Commission v Dao [No 2]: In ordinary usage the word 'court' has many meanings: they range from the group who form the retinue of a sovereign to an area used to play certain ball games. Legal usage also gives the word several meanings. 59 Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349, 372, 394, 407. 60 New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2016] HCA 50; (2016) 260 CLR 232 [33]. 61 Lane v Morrison [2009] FCA 29; (2009) 239 CLR 230 [21]. -- 60 of 74 -- [2026] WASCA 65 VAUGHAN JA Page 61 Thus a 'court' may refer to a body exercising judicial power as in the Constitution, Ch III, or to a body exercising non-judicial power such as the Coroners Court or to a court of petty sessions hearing committal proceedings. It may even refer to a body exercising judicial and arbitral powers such as the former Commonwealth Court of Conciliation and Arbitration or the Queensland Industrial Court.62 208 French CJ and Gummow J noted a number of other dictionary definitions including 'the king's courts' of justice': Lane v Morrison [21]. Of its use in this sense, their Honours quoted with approval the explanation of Barton J in Waterside Workers' Federation of Australia v JW Alexander Ltd: 'The Court' is the deciding and enforcing authority, even if it sits under a tree, as sometimes it does in parts of the British Empire.63 209 I will use the term 'court' in this sense. In substance it refers to a decision-maker or decision-makers in whom authority is reposed to perform identified functions and duties in the administration of justice as an organ of the state. Collectively those decision-makers comprise a court. This understanding of the term 'court' recognises that judicial power is an aspect of the sovereign power of the state as a polity - a court is an incorporeal body established by law to exercise that judicial power of the state (either generally or subject to defined limits) through appointed decision-makers who act for the state. 210 In other contexts greater precision and more elaboration will be required in defining or describing a court. Depending on the question that arises for determination it may be necessary to identify the essential indicia that characterises a particular body as a court. For present purposes, however, the foregoing suffices. 211 The ordinary meaning of 'person' does not include a court: Osborne v The Queen [6]. Similarly, the word 'person' does not, in ordinary English usage, refer to a court; nor is a court a body politic or an individual: Kizon v Palmer (430). Ordinarily a court does not have its own independent legal personality. Rather, a court is a body that exercises such judicial or other powers of a polity as has been conferred on the court (recognising that there are limitations on the non-judicial powers that may be conferred on a federal court or a Chapter III court). 212 Nothing in the Family Court Act suggests that the Family Court is a body corporate. To the contrary, as stated in s 9(2) and s 10(1) of the 62 Australian Postal Commission v Dao [No 2] (1986) 6 NSWLR 497, 515. 63 Waterside Workers' Federation of Australia v JW Alexander Ltd [1918] HCA 56; (1918) 25 CLR 434, 452. -- 61 of 74 -- [2026] WASCA 65 VAUGHAN JA Page 62 Family Court Act, the Family Court is a court of record and consists of the chief judge and other judges and acting judges appointed under the Act. Each such judge must give an oath or affirmation of office as prescribed in sch 1 of the Family Court Act (s 13, s 22(4)). Each judge must, among other things, vow to do right to all manner of people, according to law, without fear or favour, affection or ill will. 213 It is, in my opinion, not to the point that other provisions within the Sex Discrimination Act may apply to a State or Commonwealth judge in respect of his or her personal conduct in particular situations. What is presently at issue is the reach of s 22 of the Sex Discrimination Act and its potential application to the Family Court (rather than a particular judge of the Family Court) in the exercise of the Family Court's jurisdiction under the Surrogacy Act to make a parentage order. The difference between a judge of a court and the court of which a judge is a member is well established. The distinction is demonstrated by the concept of persona designata by which a judge might be authorised to exercise non-judicial powers but not in his or her capacity as a judge of the court to which he or she is appointed. 214 The power to make a parentage order under s 21(1) of the Surrogacy Act is conferred on the Family Court rather than each judge of the Family Court personally as an individual because he or she is a judge of the Family Court. 215 The applicants did not make an express submission to the effect that the Family Court fell within the contemplation of the terms 'government' or 'government authority' as mentioned in par (e) of the s 4(1) definition of 'services'. However, such an assumption is implicit in the submission I have recorded at [183] above. In my view that implicit assumption is misplaced. The terms 'government' or 'government authority' do not encompass a court such as the Family Court. 216 The ordinary and natural meaning of the term 'government' is to the executive branch of government. See, for example, the way in which the word was read and construed in Burns v Ransley64 and the definition in Greenberg D, Jowitts's Dictionary of English Law (6th ed, 2023) ('the State itself; the offices in which is vested the executive authority of the State … the principal executive officers of a State'). The ordinary and natural meaning applies all the more so to the references to 'government' 64 Burns v Ransley [1949] HCA 45; (1949) 79 CLR 101, 115 (ie 'the governing power of the country consisting of the executive and the legislature'). The legislature is not contemplated by the use of the term 'government' in par (e) of the s 4(1) definition - the legislature is plainly not a provider of services for the purpose and within the meaning of the Sex Discrimination Act. -- 62 of 74 -- [2026] WASCA 65 VAUGHAN JA Page 63 and 'government authority' in par (e) of the s 4(1) definition of services where: (1) the definition goes on to refer to a 'local government body'; and (2) s 12 of the Sex Discrimination Act is directed to the executive (see [154] above). The term 'government authority' ought to be construed and understood conformably with the term 'government' as referring to an authority carrying out the functions and duties of the executive branch of government. In that respect the term 'authority' has a different connotation to the concept of a court or tribunal (that terminology being used elsewhere throughout the Sex Discrimination Act in contradistinction to the term 'authority' or 'government authority'). 217 There is, however, considerable force in the applicants' submission that the express purposes of the Sex Discrimination Act justify a liberal and generous construction of the term 'person' such that the term may encompass a court (see [173] above). 218 While appreciating the force of the submission, the difficulty with the applicants' preferred construction is that it accentuates purpose over text. Statutory construction begins and ends with the statutory text understood in context and in light of the statutory purpose: Palmanova Pty Ltd v Commonwealth.65 As Thomson P has recently explained, text is an 'essential anchor' to be afforded primacy in the process of statutory construction so as to reflect properly the constitutional separation of the different functions of the legislature and judiciary: Morgan v Roman Catholic Archbishop of Perth.66 219 There is, in this respect, two critical matters arising from the use of the word 'person' in the statutory text of s 22 of the Sex Discrimination Act. First, while the many decisions holding that a court is not included within the term 'person' occur in a different statutory context, the ordinary meaning of the word 'person' - and that the term has been construed as not including a court - is well established. Had it been intended that the prohibition in s 22 of the Act was to apply to a court it is to be expected that this would have been made explicit given the numerous decisions where the term 'person' has been held not to include a court. 220 Second, and of greater significance, the Sex Discrimination Act itself provides for a distinction between the term 'person' and the term 'court'. Section 112 of the Act is concerned with non-disclosure of private information. It prevents certain disclosures on the part of the Sex Discrimination Commissioner, the Australian Human Rights 65 Palmanova Pty Ltd v Commonwealth [2025] HCA 35; (2025) 99 ALJR 1362 [4]. 66 Morgan v Roman Catholic Archbishop of Perth [2026] WASCA 62 [31]. -- 63 of 74 -- [2026] WASCA 65 VAUGHAN JA Page 64 Commission and staff of the Commission. Relevantly, there are separate sub-sections dealing with divulging or communicating information to 'any person' (s 112(1)) and divulging or communicating any information or producing a document 'to a court' (s 112(2)). The term 'court' has an inclusive definition (s 112(4)). 221 The clear distinction that the Sex Discrimination Act draws between a 'person' and a 'court' in s 112 of the Act provides substantial support for adopting the ordinary and natural meaning of the word 'person' when construing the text as used in s 22 of the Act. 222 I have, however, cautioned against construing the term 'person' in s 22 in isolation divorced from its context. The prohibition is directed to a person who 'provides goods or services, or makes facilities available'. The prohibition is directed to certain discriminatory actions when undertaking an activity of the kind referred to in s 22 (ie the provision or refusal of goods, services or facilities). In examining whether a court is a person for the purpose and within the meaning of s 22 there should be consideration of whether a court is a body that provides goods or services or makes facilities available. It is necessary, in this respect, to distinguish between a court as formally constituted and the administrative staff and infrastructure that support the court as formally constituted in performing and discharging the court's judicial functions and duties. 223 Ordinarily, a court as formally constituted does not provide goods. Nor does a court make facilities available. Those who employ and control the administrative staff and infrastructure that support a court may do so; but that does not matter for present purposes. Speaking generally, a court as formally constituted exercises judicial and other powers of a polity by performing and discharging the functions and duties conferred on the court. The Family Court as continued by the Family Court Act conforms with this usual conception of a court. See Family Court Act pt 2 and pt 3. It is true that, in addition to the judges, persons are to be appointed to various offices of the Family Court (see eg Family Court Act, s 25). But, as previously mentioned, the Family Court consists of, and thus is constituted by, its judges (Family Court Act, s 10(1)). 224 Accordingly, so far as s 22 of the Sex Discrimination Act may (or may not) have application to a court - and it may (or may not) be held that a court is a 'person' for the purpose of s 22 - one aspect that ought to be considered is whether the court relevantly provides 'services'. That question arises independently, in specific rather than general terms, so far as the parties joined issue on whether the Family Court provides -- 64 of 74 -- [2026] WASCA 65 VAUGHAN JA Page 65 'services' within the meaning of s 22 in considering and determining whether to make a parentage order. It is worthwhile to turn to that issue now, and then, in as much as consideration of that issue assists the inquiry, turn back to whether the Family Court as a court is a 'person' for the purpose of s 22. 225 It is well settled that, in the present context, the word 'services' should be given a liberal meaning: McBain v The State of Victoria [10]. If, read in the context of the Sex Discrimination Act and its purpose or objects, the term 'services' can apply to an activity, it should be held that the activity is a service for the purpose of the Act: IW (12), (14). Accordingly, the word 'services' includes all matters which ordinarily fall within that notion - the word has its ordinary and broad meaning: Rainsford v The State of Victoria67 (referring to IW (11 - 12), (22 - 23), (27), (39), (41 - 42), (69 - 70)). 226 The identification of the 'service' at issue in any case is a question of fact for the trier of fact: Waters (361), (394), (404). It is necessary to identify the alleged service with precision: Waters (404 - 405); IW (16 - 17), (70). Once the suggested service is identified the determination of whether the activity in issue is a 'service' for the purpose and within the meaning of the legislation is essentially a matter of characterisation: Rainsford 2005 [54]; see also IW (44). 227 In discharging statutory functions and duties, and in exercising statutory powers in the public interest, a public authority acting as a deliberative body may also be engaged in the provision of services to individuals: IW (44) (see also (12 - 13), (74)). However, this is not always the case. In IW Brennan CJ and McHugh J stated: [W]hen a council is called on as a deliberative body to exercise a statutory power or to execute a statutory duty, it may be acting directly as an arm of government rather than as a provider of services and its actions will be outside the scope of the Act. This is particularly so when councillors are acting as representatives of their constituencies in making by-laws or resolutions that will have the force of law throughout the municipality or borough. Such 'legislative' acts have to be contrasted with the acts involved in making operational decisions as to whether a particular service should be provided to certain individuals or to a section of the community. Similarly, when a council is required to act in a quasi-judicial role in exercising a statutory power or duty, it may be inappropriate to characterise the process as the provision of a service for the purpose of the Act even in cases where the product of the process is the provision of 67 Rainsford v The State of Victoria [2005] FCAFC 163; (2005) 144 FCR 279 (Rainsford 2005) [54]. -- 65 of 74 -- [2026] WASCA 65 VAUGHAN JA Page 66 a benefit to an individual. This is likely to be the case where the council, before making a decision, is required to consider matters that affect the public interest. In such a case, the Council may be providing a 'service' in a very general sense because its ratepayers ultimately benefit from the process. But that may not be sufficient to bring the process within the scope of … the Act (15). 228 Accordingly, whilst governmental activities are capable of constituting 'services', not all governmental activities are 'services'. Whether government activities constitute services depend on the kind of considerations identified by Brennan CJ and McHugh J. One important such consideration is whether the governmental activity involves the exercise of a statutory function or duty that requires the exercise of a discretion which is quasi-judicial in nature. In this respect, as is true in any event in all cases, it is critical to identify the alleged service with precision. 229 It does not follow from the circumstance that the public, or a section of the public, benefits from an activity that, in a given case of alleged discrimination, a service is relevantly involved: IW (16). 230 The applicants rely heavily on the contention that the making of a parentage order is a helpful activity conferring a benefit on both the child and the arranged parents. It is true that, in a general sense, arranged parents would see the making of a parentage order as a helpful activity conferring a benefit. So too, objectively, that is likely to be the outcome of a parentage order for the child. But it goes too far to say that every activity which is helpful involves the provision of a service. The making of legislation might be said to be a helpful activity which ordinarily confers a benefit on the public or a section of the public. But, consistently with the passage from Brennan CJ and McHugh J's reasons in IW reproduced at [227] above, such a legislative act does not involve the provision of services within the scope of s 22 of the Sex Discrimination Act. 231 I do not accept that in determining whether 'services' are being provided it is enough to simply characterise the relevant undertaking as a helpful activity. It is necessary to give closer attention to the nature and purpose of the activity in issue. Here, having regard to the way in which the applicants put their case, the relevant activity is the Family Court's task of considering and determining whether to make a parentage order under s 21(1) of the Surrogacy Act on an application made under s 20(1) of the Act. -- 66 of 74 -- [2026] WASCA 65 VAUGHAN JA Page 67 232 Two matters are critical in determining whether the performance of the task so identified is to be characterised as providing a service. First, the task is deliberative and adjudicative in nature rather than being merely operational - the Family Court is exercising a judicial discretion and may, depending on the circumstances, be called on to make judicial determinations on matters of fact and law and will be called on to make a value judgment. Second, contrary to the implicit tenor of the applicants' submission recorded at [183] above, the task is one that involves the exercise of judicial power. I turn now to develop both of these matters. 233 The applicants characterise the Family Court's task as one of ratification. I do not accept that the Family Court's role and function in considering and determining whether to make a parentage order is so circumscribed. In considering and determining whether to make a parentage order the Family Court is not a mere rubber stamp whose only concern is to assess an application against objective factual criteria. The role and function of the Family Court is far removed from the essentially administrative task of the registrar of births, deaths and marriages in AB and AB (Appeal). 234 The most obvious legal issue that arises for the Family Court when considering and determining an application for a parentage order is whether it is in the best interests of the child for the order to be made (Surrogacy Act, s 21(2)(g)). 235 The bests interests principle provides a criterion that is well known internationally68 and has been taken up in other Western Australian statutes dealing with legal action concerning children.69 The expression is accepted to be imprecise: Secretary, Department of Health and Community Services v JWB and SMB (Marion's Case).70 Best interests are values, not facts: CDJ v VAJ.71 The multitude of elements which together comprise the best interests of a child are wide ranging and multi- faceted and susceptible to a legitimate diversity of views: Director Clinical Services, Child & Adolescent Health Services v Kiszko.72 In that respect the best interests principle offers 'no hierarchy of values' and 'depends upon the value system' of the decision-maker: Marion's Case 68 See eg United Nations Convention on the Rights of the Child (1989), art 3(1). 69 See eg: Adoption Act, s 3(1)(a); Children and Community Services Act 2004 (WA), s 7; Family Court Act, s 66A, s 162(2). 70 Secretary, Department of Health and Community Services v JWB and SMB (Marion's Case) [1992] HCA 15; (1992) 175 CLR 218, 259. 71 CDJ v VAJ [1998] HCA 67; (1998) 197 CLR 172 [152]. 72 Director Clinical Services, Child & Adolescent Health Services v Kiszko [2016] FCWA 75; (2016) 312 FLR 319 [72](6) (see also [101]). -- 67 of 74 -- [2026] WASCA 65 VAUGHAN JA Page 68 (270 - 271). It is, however, not totally subjective. The best interests principle has to be determined having regard to contemporary community standards and is an inquiry that is objective at least in the sense of falling within a wide range of existing social standards: Marion's Case (295) (referring to In the Marriage of Horman).73 236 As used in the Surrogacy Act, the criterion of 'best interests' of the child is open-textured. There is not a non-exhaustive list of factors as is sometimes found in other legislation. It is true that, absent evidence to the contrary, a presumption applies (Surrogacy Act, s 13(2) - see [133] above). But whether there is evidence to the contrary may itself raise a question of law. And once there is some evidence to the contrary there must be a judicial evaluation and balancing of the many factors from which an overall conclusion is reached on a concept that is inherently imprecise. 237 Other questions of fact and law may arise in a specific case. The Family Court must be satisfied of the existence of the circumstances that s 19 requires (s 21(2)(a)). Those circumstances include that the arranged parents reside in Western Australia (s 19(1)(a)). Residency is often contestable and commonly requires legal determination. So too, in determining whether in accordance with s 19(1)(b) there is an 'eligible couple' or an 'eligible person', the Family Court may need to make findings on the question of whether the couple or person is 'unable to conceive … due to medical reasons' not excluded by s 19(3). The constructional difficulties that arise thereby, as were examined at the appeal hearing, demonstrate how in a specific case this might give rise to contestable questions of fact and law for determination. There are even potential legal difficulties in the seemingly innocuous requirement by s 25 of the Act that in making a parentage order the Family Court is to declare the name by which the child is to be known. See eg O v O74 (dealing with an analogous requirement in an adoption context) and the discussion in A Dickey QC, 'Declaring the Name of a Child on Adoption'.75 238 The Family Court must also, unless the requirement may be and is dispensed with, satisfy itself that there is an 'appropriate' plan in 73 In the Marriage of Horman (1976) 5 Fam LR 796, 797. 74 O v O [2006] FCWA 121. 75 A Dickey QC, 'Declaring the Name of a Child on Adoption' (2007) 81 ALJ 65. -- 68 of 74 -- [2026] WASCA 65 VAUGHAN JA Page 69 accordance with s 22 (s 21(2)(f)). This, again, is not a tick a box exercise. Among other things, the plan has to (s 22(1)): (a) adequately balance the rights and responsibilities of the parties to the plan [ie the arranged parents and the birth parents]; and (b) promote the child's long-term welfare; and (c) be reasonable in the circumstances. 239 There is necessarily a value judgment in reaching a state of satisfaction that such a plan is 'appropriate'. It should not be thought that the Family Court will abdicate its responsibility to scrutinise and form a view as to the appropriateness of such a plan. Plans of an analogous kind in the closely related area of adoption can prove controversial. See eg Secretary, New South Wales Department of Family and Community Services by his delegate Principal Officer, Adoptions, Barnados Australia; Re JLR.76 The Family Court's ongoing supervisory role in relation to any approved plan is also important (see [144] - [146] above). The Family Court's role and function in enforcing an approved plan informs the nature of its task in considering and determining whether to make a parentage order. Insofar as the subsequent task of enforcement is clearly judicial in nature so too is the anterior task of approving a plan as part of making a parentage order. 240 In the present case it would be open to the Family Court to dispense with the requirement for the birth parents to have agreed an appropriate birth plan. This is because the circumstances mentioned in s 21(4) of the Surrogacy Act apply. That is, however, something of which the Family Court would have to satisfy itself. Further, were the Family Court to be satisfied that it could dispense with the requirement, it would then need to consider whether in its discretion it should dispense with the requirement. Here, again, the Family Court is called on to exercise a judicial discretion. 241 Notwithstanding that, in the present case, there is a possibility that the requirement might be dispensed with, this aspect of the Family Court's task in considering and determining whether to make a parentage order remains pertinent. It informs the proper characterisation of the nature and purpose of the activity in question. In any event the applicants' proposed surrogacy arrangement provides for a proposed approved plan (see surrogacy arrangement, cl 67 and annexure 'E'). 76 Secretary, New South Wales Department of Family and Community Services by his delegate Principal Officer, Adoptions, Barnados Australia; Re JLR [2015] NSWSC 926 [57] - [64], [67], [69], [114] - [124]. -- 69 of 74 -- [2026] WASCA 65 VAUGHAN JA Page 70 242 The second critical matter referred to at [232] above concerns whether the making of a parentage order involves an exercise of judicial power. The applicants did not go so far as to say that there was not an exercise of judicial power. But they did submit that: The Family Court, in exercising power to make a parentage order under s 21 of the Surrogacy Act is not quelling a controversy involving the rights and liabilities of adversarial parties, nor adjudging and punishing criminal guilt (applicants' reply submissions, par 48). 243 It may be accepted that the making of a parentage order lacks the usual hallmarks of the exercise of judicial power. The making of a parentage order does not quell a legal controversy as to rights and liabilities; nor, self-evidently, is such an order concerned with adjudging and punishing criminal guilt. Rather, as I have endeavoured to explain, a parentage order effects a permanent alteration in the status of the relationship between the child and his or her birth parents and the child and his or her arranged parents (see [129] - [132] above). In this respect the applicants' submission is correct as far as it goes. However, the submission does not deal with the circumstance that the concept of judicial power 'defies exhaustive definition': CD v Commonwealth; CD v Director of Public Prosecutions (SA).77 In relation to the judicial power of the Commonwealth it has been said: The concept seems to me to defy, perhaps it were better to say transcend, purely abstract conceptual analysis. It inevitably attracts consideration of predominant characteristics and also invites comparison with the historic functions and processes of courts of law.78 244 French CJ has explained how historical and traditional factors can be significant in the characterisation of a power as judicial. In Momcilovic v The Queen French CJ stated: [C]ourts have long exercised powers to make orders, declaratory in form, which do not merely declare legal rights and obligations but create new legal relationships. Examples are adoption orders, decrees of divorce or nullity and orders declaring the dissolution of partnerships. Such orders take their place in the long history of powers exercised by courts in England and Australia before and after Federation which do not involve determinations of rights. These include administrative and investigative functions … As was pointed out by Dixon CJ and McTiernan J in R v Davison, the elements of a controversy between subjects and the determination of existing rights and liabilities were 'entirely lacking from 77 CD v Commonwealth; CD v Director of Public Prosecutions (SA) [2025] HCA 37; (2025) 99 ALJR 1388 [15] (see also [55]). 78 R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd [1970] HCA 8; (1970) 123 CLR 361, 394. -- 70 of 74 -- [2026] WASCA 65 VAUGHAN JA Page 71 many proceedings falling within the jurisdiction of various courts of justice in English law'.79 (citation omitted) (emphasis added) 245 Importantly, as emphasised by the italics in the preceding quotation, French CJ evidently accepted that the making of an adoption order involved an exercise of judicial power. 246 It has also been recognised in the Full Court of the Federal Court of Australia that in some instances it is within the scope of judicial power to confer power on a court to create or alter rights; and not merely to declare and give effect to pre-existing rights. The making of an adoption order is said to be an 'obvious example' of such a judicial power: Elliott- Carde v McDonald's Australia Ltd.80 247 A parentage order under the Surrogacy Act is plainly analogous with an adoption order under the Adoption Act. One need only compare the terms of s 26 of the Surrogacy Act (dealing with the effect of a parentage order) and s 75 of the Adoption Act (dealing with the effect of an adoption order). There are other parallels as to the paramountcy of the best interests of the child, the necessity to declare the name by which the child or adoptee is to be known, approved plans or adoption plans and discharge. See generally Adoption Act s 3(1)(a), s 72 - s 74, s 76, s 77. 248 In the same way that an adoption order is accepted to involve an exercise of judicial power, so too the making of a parentage order involves an issue of judicial power. The Surrogacy Act has conferred on the Family Court 'a novel function which is judicial in character': Momcilovic v The Queen [82]. 249 Accordingly, in considering and determining whether to make a parentage order under s 21(1) of the Surrogacy Act, the Family Court is exercising a judicial power. Moreover, as I have explained earlier, the Family Court will be engaged in a task that is deliberative and adjudicative - that is, in any case, hardly surprising where the Federal Court is engaged in the exercise of judicial power. 250 These conclusions are material in answering the applicants' submission summarised at [182] above (as well as the overall characterisation question as to whether the activity in issue is a 'service'). The applicants eschew the attachment of any significance to the power to make a parentage order being conferred on the Family Court as a court. The applicants submit that only the state could alter the legal status and 79 Momcilovic v The Queen [2011] HCA 34; (2011) 245 CLR 1 [81]. 80 Elliott-Carde v McDonald's Australia Ltd [2023] FCAFC 162; (2023) 301 FCR 1 [377]. -- 71 of 74 -- [2026] WASCA 65 VAUGHAN JA Page 72 relationship of parent and child. That may be accepted. The applicants go on to submit that 'there is no principled basis why the activity should be deemed not to be the provision of a service merely because it is provided by a court rather than some other arm of government' (applicants' submissions, par 75). I do not accept that submission. 251 The circumstance that the power to make a parentage order has been conferred on the Family Court as a court is significant to the nature and purpose of the activity in issue. In considering and determining whether to make a parentage order under the Surrogacy Act the Family Court is exercising a judicial power. Moreover, the Family Court - as a court - is conducting a task that is deliberative and adjudicative in nature. The Family Court is exercising a judicial discretion and may, depending on the circumstances, be called on to make other judicial determinations in the course of considering and determining whether to make a parentage order. 252 The consideration and determination required of the Family Court is of a different character to that which might occur were the power to transfer the parentage of a child born under a surrogacy arrangement to be vested in some administrative officer in the executive branch of government. Then, depending on the precise metes and bounds of the power, it might be that the consideration and determination involves no more than ratification without a discretion. But, for the reasons I have given, the consideration and determination by the Family Court of whether to make a parentage order is fundamentally different in character. 253 It is necessary to characterise the activity in issue by reference to what the legislature has in fact provided for in the Surrogacy Act rather than by what might otherwise have been. That requires the activity to be characterised in the context of the conclusions I have reached as to the nature and purpose of the Family Court's task in considering and determining whether to make a parentage order. 254 The word 'services' is a word of generality. It should be given a broad meaning consistent with the objects of the Sex Discrimination Act. However, I am unable, even so, to characterise as a 'service' the Family Court's task of considering and determining whether to make a parentage order under s 21(1) of the Surrogacy Act on an application made under s 20(1) of the Act. Such judicial decision-making is not a 'service'; it is the exercise of an aspect of the sovereign power of the state. In my opinion, having regard to the nature and purpose of the activity as I have described it, the Family Court is not providing a 'service' when it -- 72 of 74 -- [2026] WASCA 65 VAUGHAN JA Page 73 considers and determines whether to make a parentage order. The multifactorial analysis required in the exercise of judicial power by the Family Court as a court in assessing whether to make a parentage order cannot be reduced to the provision of a 'service'. 255 I doubt, given what I have said as to whether the Family Court relevantly provides 'services', that the Family Court is relevantly a 'person' for the purpose and within the meaning of s 22 of the Sex Discrimination Act when it considers and determines whether to make a parentage order. If, as I have concluded, such judicial decision-making is not a service, then it is difficult to see why the Family Court might be considered a person for the purpose of s 22. That is all the more so given the textual and other indicators I have previously mentioned. More generally, unless there is some other way in which the Family Court can be said to provide a 'service' in respect of some other identified activity, there would appear to be no scope to find that the Family Court is a 'person' for the purpose of s 22. 256 It is, however, not necessary to come to a final conclusion on whether the Family Court may ever be a 'person' for the purpose of s 22. It is sufficient to conclude, as I do, that the Family Court is not a 'person who … provides … services' so far as it considers and decides whether to make a parentage order under s 21(1) of the Surrogacy Act on an application made under s 20(1) of the Act. This is because the Family Court is not relevantly providing a 'service'. 257 My conclusion that the Family Court is not a 'person who … provides … services' so far as it considers and decides whether to make a parentage order is determinative of the inconsistency issue. It is not necessary, in the circumstances, to go on and determine the second sub-issue, namely, the issue concerning whether less favourable treatment is being or would be afforded to the first applicants on the ground of their sex or sexual orientation. The inconsistency issue fails at the initial hurdle. 258 I would dismiss ground 2. Conclusion and orders 259 The application for judicial review should be dismissed. In my opinion, for the foregoing reasons, the Family Court is not a 'person who … provides … services' so far as it considers and decides whether to make a parentage order under s 21(1) of the Surrogacy Act on an application made under s 20(1) of the Act. This is because the Family Court is not relevantly providing a 'service' for the purpose and within -- 73 of 74 -- [2026] WASCA 65 VAUGHAN JA Page 74 the meaning of s 22 of the Sex Discrimination Act. Ground 2 of the application for judicial review fails. There is, as I have explained, no utility in granting the writs of certiorari and mandamus sought by the applicants in circumstances where ground 2 fails. It follows that the prerogative relief sought by the applicants should be declined as a matter of discretion. 260 It should be apparent from what I have written that nothing in these reasons detracts from the respondent Council's view that the applicants' surrogacy arrangement meets the requirements under s 17 of the Surrogacy Act. Nor does anything in these reasons detract from the Council's conclusion supporting the first applicants becoming parents. 261 Rather, insofar as I would dismiss the application for judicial review, it is because I would resolve the question of law underpinning ground 2 adversely to the applicants. In the absence of invalidity due to inconsistency with s 22 of the Sex Discrimination Act the impugned provisions within s 19(2), s 20(1) and s 21(2)(a) of the Surrogacy Act take effect according to their terms. In that respect the outcome I have arrived at is the result of the legislative choice of the Parliament of Western Australia as stated in the Surrogacy Act (that legislative choice continuing to subsist until the coming into operation of the substantive provisions of the Assisted Reproductive Technology and Surrogacy Act 2025 (WA) with its intended repeal of the Surrogacy Act). I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. LK Associate to the Hon Justice Mitchell 7 MAY 2026 -- 74 of 74 --