Smith v Chief Executive, Queensland Corrective Services

In a controversial application, a female 33 year old prisoner sought to have some of her eggs extracted and frozen under s 22 Corrective Services Act 2006 in order that she could access them upon her release from prison. The respondent had already refused her application, on the basis that s 22(2)(b) of the Act prohibited a prisoner from making an application to participate in “assisted reproductive technology”. In a comprehensive judgment, Sullivan J dismissed the application for statutory order of review of the refusal, noting that “[a]pplying some form of arbitrary meaning to ‘assisted reproductive technology’ based on a present intention of a prisoner not to seek to have a child during the term of imprisonment would lead to unequal treatment.”

Sullivan J

27 November 2024

The applicant, aged 33, had been sentenced to 10 years’ imprisonment for trafficking in a dangerous drug. [1]. She sought approval under s 22 Corrective Services Act 2006 (“the Act”) to undergo egg freezing, with a view to using the eggs for fertilisation and implantation at the cessation of her sentence. [7]. The respondent had already refused a prior application. [8]. Relying upon s 48 Human Rights Act 2019, the applicant contended that s 22(2) of the Act should not be construed in a way which would be incompatible with her human rights, specifically the right of every person to have access to health services without discrimination (s 37 Human Rights Act 2019) and the right for all persons deprived of liberty to be treated with humanity and respect for the inherent dignity of the human process (s 30 Human Rights Act 2019). [10].

The legislation

Section 22 of the Act outlines circumstances in which a prisoner may apply to the Chief Executive for approval to be examined or treated by a health practitioner at the prisoner’s expense. If an application is “able to be made, the Chief Executive then has a discretion as to whether a prisoner will be allowed to receive the requested privately funded examination or treatment by the health practitioner”. [22].

What was the proper construction of s 22(2) Corrective Services Act 2006, and specifically the words, “assisted reproductive technology”?

The applicant submitted that the extraction and freezing of a female’s eggs does not fall within the meaning of “assisted reproductive technology” as that phrase appears in s 22(2) of the Act. She sought to argue that, instead, the ordinary meaning of “assisted reproductive technology” is the application of technology at a point where reproduction can occur by its implementation, for example invitro fertilisation or artificial insemination. [39].

The applicant argued that accordingly what she was seeking was not caught by the prohibition in s 22(2) on its proper construction. His Honour did not accept the premise of that argument, and in dismissing her application for judicial review held as follows:

(1)On its proper construction, the exemption applied. The extraction and freezing of a female’s eggs falls within the meaning of the specific phrase “assisted reproductive technology”. [13]–[14]. It is not the case that “assisted reproductive technology” excludes those processes. [55]. Rather, “[o]n a literal interpretation, the extraction and freezing of eggs are unambiguously a part of ‘assisted reproductive technology’”; [64];

(2)The word “reproductive” does not refer to conception, but rather the reproduction of a child; [68];

(3)Section 48(2) Human Rights Act 2019 does not provide any scope for a test for statutory construction which varies from the standard approach undertaken by courts. Properly understood, it is an interpretive provision which works jointly with other rules of statutory interpretation. The provision does not enable the Court to modify legislation to make it compatible with human rights: see Momcilovic v The Queen (2011) 245 CLR 1, [565]–[566]; [114];

(4)Section 22(2)(a) not only prohibits “assisted reproductive technology” steps of a physical nature, but also non-physical steps, examples of which include a prisoner consenting to the use of a gamete in the fertilisation process, or consenting to the implantation of an embryo into a partner or surrogate who is not incarcerated. Such steps do not require any physical contact with the prisoner; [92];

(5)The imposition of an absolute restriction of access to “assisted reproductive technology” means that all prisoners are treated fairly since they are all equally denied the opportunity to partake in “assisted reproductive technology”. That would not be the case were some form of arbitrary meaning given to “assisted reproductive technology” in order to accommodate a present intention of a prisoner not to seek to have a child during their term of imprisonment: “Certain prisoners would be allowed to have medical examinations and treatments to extract and freeze gametes, whilst others would be denied this”. [95].

Disposition

The decision of the Chief Executive was confirmed as being correct in law and the application was dismissed. [119].

A Jarro