Bills

Statutes Amendment (Gender Identity and Equity) Bill

Committee Stage

In committee (resumed on motion).

Clause 9.

Mr KNOLL: This is obviously the most contentious part of this bill. Certainly, I have discussed this previously tongue in cheek, as I said on the record when I gave the speech about the change we are seeking to make here. The argument I would like to put—for those who are listening, I understand that this is a clause that we are going to potentially be dividing on—is that we have talked a lot here about the difference between sex, which we understand to be a biological expression of someone's gender, and we have talked about gender identity, which is an individual, deeply-held belief, and I understand those two things have different meanings.

For instance, at the moment, on a birth certificate, we are talking about a statement of biological fact; therefore, it is the sex that is recorded on the birth certificate. When we talk about gender identity, we are now inserting 'gender identity' as a term within the Acts Interpretation Act. Presumably, we are going to open up gender identity for use in various circumstances, and we are seeing the first of those uses when it comes to its application for searches by Correctional Services officers and police. We are also seeing gender identity being used for determining what gender people consider themselves to be for appointment to government boards.

What we are talking about in this provision is something that I think relates more closely to sex than to gender identity, and it is the reason why I oppose this clause. I think one of the fundamental things about being a woman is being able to give birth. Indeed, I think the definitions are so closely tied together that the idea of having working parts—I am trying to be gentle here—of a woman's body that allow that woman to give birth is inherently what makes her female.

I do not want to open up this debate or can of worms, but it is not something that is only related to humans. We understand that with a lot of mammals, in relation to male and female, an animal giving birth is of the female gender.

Members interjecting:

Mr KNOLL: I know there are exceptions to this rule, but what I would contend is that what we are seeking to change here is not anything to do with gender identity: it is to do with sex. What we are talking about here is changing something that should otherwise be a statement of biological fact, in that a woman is the person who can get pregnant, and trying to turn it into a gender identity issue.

Whilst I am extremely supportive of the vast majority of what is in this bill, and indeed will be supporting it in the third reading, on this clause, I think that we need to understand what it is we are doing. I think that this is one of those times when sex is the primary consideration, or sex is what is appropriate to define a person in this area, as opposed to the broader concept of gender identity.

The Hon. T.R. KENYON: I think the member for Schubert has put it quite eloquently. He certainly made a distinction that I would not have thought of about the role of gender and the role of sex in this instance, and he grasped that quite technically. For me, it is a little bit more basic and, again, echoes what the member for Schubert said. The female of a species is so often defined by the reproductive role. The member for Bragg has pointed out a noble exception and, of course, in nature there are always noble exceptions. However, in this case they are so deeply intertwined: it is an objective truth that only women can give birth, and that is just how it is. I am no more erudite than that: that it is, and that is the case.

When voting on this, I will be opposing this clause. The reason I will be opposing this clause is that I think they are so closely intertwined and it is not possible for a man to give birth. Given that it is not possible for a man to give birth, there is no point in changing it. I think this clause—'undermines' is probably too strong a word. Despite my best intentions, it is very difficult to find any sort of objection to the rest of the bill, because it is entirely reasonable. Like the member for Schubert, I will also be voting on the third reading in the affirmative, but I will be voting against this clause. I will be voting against this clause because I think it detracts from the bill, because it gets past the point of gender identity and gets into what is an objective truth: that it is women who give birth and get pregnant.

Mr PENGILLY: I am at one with the member for Newland, the member for Schubert and others on this clause. I find it completely absurd that we are even discussing this in this chamber. I remain adamantly opposed to it. This particular clause is a laughing stock in the wider community and I see no good reason to change where we currently are.

I recognise why the bill has been brought in and I understand parts of the bill. I do not object to parts of the bill, but I do object to this clause. I will be voting no to it, I can assure you. I have been given the thoughts of many in my electorate who think parliament is just wasting its time and debating rubbish on this sort of thing, and they want jobs, etc.—that is their view and they are entitled to it. When this clause comes to the vote shortly, you can rest assured that I will be voting for my principles, and my principles do not include this clause.

Mr PEDERICK: Despite the interesting answer I had from the Minister for Education earlier, I am still not convinced that any form of male can give birth. As has been evidenced in history and as I indicated in my second reading speech a couple of weeks ago, it has not happened yet. I want to be given the time to reflect on some of the comments from people not only in my electorate but also further afield. Anyone following this story would have come across some of those comments from further afield. A constituent from my electorate (Jeanette Eckert) writes:

Dear Adrian

The Woman in our Family are outraged at not being recognised as woman, who for 9 months carry their child in the womb, and then go through, usually, many long hard hours of labour to deliver their little miracle. The Nation owe a great debt to these wonderful Woman and their partners who have contributed to the building of the Australian Nation.

I think that sums it up, because I do not think any bloke would like to go through what ladies go though in childbirth, and I certainly salute them for what they do in keeping peoples on this earth going. As someone else has said, 'Totally agree. Political correctness gone mad,' and another one: 'Just more useless crap we don't need.' I am not sure if we can use that word, but I have.

Ms Chapman: Quote.

Mr PEDERICK: Yes, I'm quoting—thank you, member for Bragg. Another comment:

Further to your agenda of challenging the amendment to the bill, I too was perplexed enough to write to the editor about the same thing. I'm glad that 54 'men' have not actually given birth to babies in Australia.

Further than that, a lot of these comments were readily available. Someone makes the comment:

Disgusted that this will actually be discussed in Parliament. We are actually paying for your stupidity—

So, they are summing us all up.

Hang your heads in shame you politicians who make South Australia the joke of Australia.

Another person says:

Jay—this is stupidity in the extreme just fix it NOW.

I think the Premier actually made those comments to the media that he might have a look at it when he was asked questions about it. Another person says:

Bizarre. And they are going to waste time debating this in Parliament? Just goes to show how serious they are about the important issues facing this State.

Someone else:

What a total wast of time and money. Anyone would think that Parliament has nothing else on its plate. I am fed up with political correctness.

So what is next. The late George Carlin proposed that rape victims will end up being referred to as involuntary sperm recipients.

Changing a name does not change the condition.

Another comment:

Wonder how long before the title 'person' is considered politically incorrect...surely there must be plenty of cats & dogs offended by that description.

Another one:

Well it does have the word 'son' included in it just the like the word 'woman' has 'man' included in it. It is all quite disgusting and something should be done about it!

Another one:

I can't wait for the legislation to remove references to male and female and have everyone classified as person.

Some more commentary:

This just shows how stupid things can grow into mountains. And to be honest it borders on being offensive to women (you know.. females, not males) who are or have been pregnant. Any woman who has been pregnant should have respect, everyone knows that even these days a person who is or has been pregnant has female reproductive organs. Duh? It is not political correctness, it is some baboon that is not busy enough in their work thinking up anything to get attention. Grow a brain. And a brain should be mandatory, and stop trying to manipulate our lives. Sorry, persondatory and personipulate. Is that better? Grow up.

Still quoting:

The problem is now, do male/female, man/woman mean anything at all? Or are the meanings totally relative and so mean whatever anyone happens to want them to mean?

If the latter then they are totally useless and we need to get words that actually mean something. If the former—then please stop all this rubbish.

Another quote:

Should we go a step further and say a pregnant perchild because person is not gender neutral...

In answer to that, someone says:

Absolutely!

I have long been deeply offended a those who refer to us as a species as 'humankind' for the same reason. 'Humankind' becomes "hupersonkind' which then becomes 'huperchildkind' as the correct gender-neutral designation.

Another comment:

Question of the future—

'Why does my birth certificate have IT? And what is an IT?'

Answer by the person (homosexual, lesbian, transgender, or my goodness a straight thing) 'An It is undecided being which may or may not produce the next generation of ITs. It has been legally addressed in such a style that you, the IT, get to choose whatever you decide you might wish to be.'

In another comment about how we refer to gender:

The next thing will be that we should not call people 'he' or 'she' depicting gender.

Another comment:

This has gone way past Political Correctness, this is now social insanity.

Can you imagine the confusion and the size of the titles if we can no longer call a spade—

and this is a great comment—

a 'concave ferro metallic manually operated tool for the bi-bifurcation and physical transposition of organic and inorganic semi slumping materials?'

I think that is a great quote.

It's just madness I say.

Another comment:

Surely to goodness they start all this to try and divert us from the fact that politicians are not doing anything constructive within their roles. I can only shake my head in disbelief.

I think this next comment sums up the idea that men can fall pregnant:

The only 'men' to have fallen 'pregnant' are transgender persons. They are living their lives as a man but were previously living their lives as females. As yet, they had not had any operations to transform their genders completely to a man. This is why South Australia is the laughing stock of Australia, and a backwater. Other states have real issues to deal with, not this time wasting namby pamby crap. You really have to wonder, how we manage to even get where we are given the idiocy in this state.

Another comment:

Just the other day, I was thinking that there were a lot of pregnant men around. Utterly ridiculous, no wonder the state in as bad as it is when time is wasted on crap like this.

Another one:

Is it legislated that men can have maternity leave? could be discriminatory action pending.

We are governed by idiots, meanwhile Rome burns to the ground and we are white-anted from within.

Another comment:

Perhaps we can have a title of Parliamentary members, 'The Most Honorable MP', changed to the 'The Most Idiotic MP'. To me this would be a far better description of our politicians if we are to be 'Politically Correct'.

Here we have a another comment: 'Social engineering by the left.' Just to finalise these few comments:

In my 70 plus years of life I have never seen a pregnant person just a pregnant Woman/Girl. To suggest they are gender neutral is an insult to commonsense & all the women of the world.

I think that just sums it up, Madam Chair.

Ms HILDYARD: I think I will take all of those points as comments, rather than a question. I think there is a broad question there, and I will try to answer that, but I think most of those are commentary. I did want to say thank you to all of the speakers who have contributed in relation to our debate about this particular clause. It is very clear that this clause within the bill has elicited a lot of attention and a lot of feeling from many members in this house.

I am very pleased that we have been able to have an open debate, and that people have been able to air their views. What I have been able to get from listening to people's views is an insight into the various sets of values of the members in this house. I know that, in supporting this particular clause and this bill as a whole, I do so with my values very firmly in my heart and mind. I do not think that any of this is 'crap', as the member for Hammond referred to—

The Hon. S.E. Close: Quoted.

Ms HILDYARD: —or that other people referred to. I also want to say that I think I and members on both sides of this house are able to get across a range of issues facing South Australians at one time. What I did want to say in relation to this debate about an expression of one's values is that I absolutely value the ability for all members of the South Australian community to be included in all of our laws.

This particular bill speaks very much to my values and my commitment, and I hope the commitment of many members in this house, to actually aim, as lawmakers, to make laws that do include all members of our South Australian community. To me, that is what this particular clause and indeed this whole bill is about.

I did also want to make another couple of points. First of all—and I think this just picks up on some of the comments that have been made about only women biologically being able to give birth—again I go to the point that if we actually value all community members being included, those people who identify as women must be included in terms of having all of the rights, responsibilities, obligations and, indeed, penalties in relation to clause 9 apply to them equally.

That applies to people who identify as a woman but, also, it applies to a group of transgender people. There are circumstances where transgender people who have begun to change the gender that they had at birth through medical procedures, etc., have chosen to delay the last parts of that procedure to enable them to give birth, so this particular clause also applies to them.

Finally, what I wanted to say in relation to this clause is that, as the member for Hammond pointed out in our debate the week before last, there are 54 people who identify as men who have now given birth in Australia and two of those are in South Australia. If I value the inclusion of all of our South Australian community members, I want to make sure that we stand up for all of those citizens, whatever people's views about them are. It is incumbent upon us, as law-makers, to stand up for them and make sure that they are equally, as I said, able to access all of the rights, obligations, responsibilities and, indeed, in relation to clause 9, the penalties that come about through the Criminal Law Consolidation Act.

Ms CHAPMAN: I will just indicate that, whilst I am going to ask a further question, as we have had a change of person responsible for the bill on behalf of the government, can I say that I have listened with interest to some of the recent comments on this question, on clause 9, because, in fact, this clause is not about the rights of adults at all: it is about the rights of a foetus not to be poisoned illegally, irrespective of the status of its parents.

This is about a Criminal Law Consolidation Act amendment which says that it is illegal, it is an offence, to poison yourself and cause a foetus to be aborted, and it is to cover a situation where someone does move from being a woman to a man. It is exactly the same argument we had when we dealt with the entitlements of children in the last 20 years. We have had this debate over and again. Irrespective of the marital status of their parents, they have the same entitlements and rights.

Now we are talking about in vitro and we are talking about children who are entitled to be protected. This is a criminal law reform. It is the only significant one in this bill. The rest is, as all the speakers have said and the new lead speaker for the government has acknowledged, about giving people the rights of recognition. This is about imposing an obligation on whoever is carrying the baby. If they do something to deliberately kill it, then they will face a penalty of up to life imprisonment.

So my question to the new representative on behalf of the government is this. It was published this morning that, while this section of the Criminal Law Consolidation Act is open, it is the intention of the Hon. Tammy Franks to move an amendment to reduce the penalty for killing an unborn foetus in these circumstances. What is the parliamentary secretary's view, and will she be supporting a reduction of the penalty from the maximum of life sentence to anything less?

Ms HILDYARD: I must say that I was completely unaware of the member of the Legislative Council Tammy Franks's indication that that is what she was going to do until today, very early this morning, and I have not had an opportunity to discuss that particular matter with her. I agree with the member for Bragg in terms of her analysis about what this particular clause will do in terms of, as I said before, ensuring that the same rights, responsibilities, obligations and penalties are conferred upon all of our South Australian community members.

As I said, I have not had an opportunity to discuss at all what that bill will look like that the Hon. Tammy Franks is putting forward, so I do not really think I can comment in relation to that, and I am not sure whether that really goes to the question that we are actually looking at at the moment in terms of this clause.

Ms CHAPMAN: Can I ask the parliamentary secretary then to take that question on notice. She now has the conduct of this bill on behalf of the government. It is on its way, clearly, from the statement that has been made, and I think it is academic, frankly, as to whether it is going to be a proposal to substitute a lesser offence to be a fixed term of five years, 10 years imprisonment, a fine, whatever she has in mind, I do not know. But so far the law is clear—

The Hon. J.M. Rankine interjecting:

Ms CHAPMAN: Don't mind her.

The Hon. J.M. Rankine: Never mind you.

The CHAIR: Order!

Ms CHAPMAN: —that the parliament has considered this to be a most heinous crime with a penalty not less than what we give murder. It does not have a 20-year non-parole period as we do with murder, which is a separate clause in the legislation. I think we need to know what the government's position is going to be, and if it is going to be, 'We are not going to have a joint party position on that', everyone can just float around and do what they like. Whatever reduced sentence is to be introduced by the Hon. Ms Franks we need to know what it is.

The Hon. J.M. Rankine: That will be considered by the government.

The CHAIR: Unfortunately, we cannot hear up the back.

Ms Chapman interjecting:

The CHAIR: Order!

Members interjecting:

The CHAIR: Order!

Ms HILDYARD: There are a few things. I think the member for Bragg has raised some really interesting questions. What I would say in relation to those questions is that I am just not sure that they actually go to the intent of this bill. My support for this bill, as I said before, comes about because I wholeheartedly believe that in all of our legislation we must ensure that all of the rights, responsibilities, obligations, penalties, etc., contemplate all of the citizens to which that particular bill applies. The first thing I would say is that I do not really think that question has anything to do with the content of this. What I would say is that, as I said, I think the issues raised are really important, so I am happy to talk with the member for Bragg privately at any time about those matters.

In terms of the position of the government, obviously you have just brought this question up now, but generally in relation to those matters or matters of that type it is a matter of conscience on this side of the house, but that is not something that I can determine right here.

The CHAIR: Member for Schubert, this is your last question.

Mr KNOLL: Yes, ma'am. There has been some discussion that what we are essentially doing here is closing a loophole. I struggle with that concept because in an answer to a previous question I was told that 'gender identity' is a term that we are creating for the first time in legislation, and, again, we have just passed a number of clauses where 'gender identity' will be used. However, I understand that currently 'gender identity' is not something that can be used for the clause that we are talking about here.

So, if the definition stays as it is and a pregnant woman is subject to this part of the Criminal Law Consolidation Act, the only way that someone cannot be subject to that is if somewhere down the track we change the definition from what it currently is. The idea that 'pregnant woman' means that anyone who is pregnant is a woman means that everybody who has the chance to abort a foetus is captured by the current legislation. I do not see how there is a loophole unless we create one down the track.

I do not think that, by voting against this clause, we are allowing there to be a loophole because, again, the clause as it stands, and as I understand it, is a statement about sex as opposed to a statement about gender identity. It is only if we turn it into a statement about gender identity that there could, potentially, be a loophole and that is reductive because we would be closing a loophole. However, as it stands currently I do not believe there to be a loophole, but I am asking whether there is one.

Ms HILDYARD: I hope I heard your question correctly. If I have heard it correctly, my answer is that the intent of this clause is to capture all of the people in our South Australian community who have the possibility of becoming pregnant or are pregnant. I am not quite sure I heard your question properly or if it was just a statement.

Mr Knoll: It was a question.

The CHAIR: Does that satisfy the question?

Ms HILDYARD: Yes.

The Hon. T.R. KENYON: Just on that point, taking the view that the member for Bragg has put, that there would be potentially people who are not caught up in this and those penalties, which I support, by the way, I do not want to see a situation where it is possible that we could create that loophole. My understanding of the situation is that, for the purposes of the Criminal Law Consolidation Act (where these provisions are), if you are pregnant, in the eyes of the law you are a woman regardless of how you view yourself and how you identify and regardless of the gender that you assign yourself. In the eyes of the law for the purposes of the Criminal Law Consolidation Act you are in fact a woman; therefore, we are not creating a loophole. I just want the parliamentary secretary to confirm whether or not that is correct.

Ms HILDYARD: Yes, I can confirm that is correct: we are not creating any sort of loophole through this clause.

Mr PISONI: Can the parliamentary secretary advise whether there was any consideration of this amendment to this clause other than the change of language? Was there consideration as to whether this clause is still relevant, when we have quite liberal abortion laws in South Australia that allow legal abortion quite late in a term? Are you are able to advise (and if you cannot do it now perhaps you can share that in the Legislative Council debate) how many prosecutions there have been where people have put themselves through this?

I cannot imagine anybody of sane mind or any person who is not in a desperate situation—either through social pressure, through family pressure, a 13 year old girl, or someone like that, who does not want their parents to know that they are pregnant and then tries to attempt an abortion on their own—how it is possible that in this day and age we can have a life imprisonment penalty for someone who is so desperate that they would attempt to do this to themselves. It is almost like having the death penalty for someone who attempts to commit suicide.

Ms HILDYARD: Two comments: first of all, the advice and consideration in relation to this clause and the others came principally from the SA Law Reform Institute report. In terms of your question about how many prosecutions in relation to this particular matter, I do not have that information, but I am happy to provide it through the Legislative Council debate.

The CHAIR: The member for Unley has another question?

Mr PISONI: Thank you, yes, I have, on the same clause. The question I do not think was answered. We are updating the language but are we also using the opportunity to update the law?

Ms HILDYARD: In relation to the Criminal Law Consolidation Act as it pertains to the procurement of abortion, there is absolutely no intention at this time from the government to change the content, the thrust, of that law. There is an intention in this clause and throughout the bill to make sure that we change the language, though, that it does contemplate all of our South Australian citizens, and in relation to this particular clause all of those citizens who have the possibility of becoming pregnant, or are pregnant, or could be pregnant in the future.

Mr PEDERICK: The member for Reynell has repeated what I have stated before about 54 men (allegedly men) giving birth, and I believe it was in 2014. The question I pose is: how have all the jurisdictions managed the legalities around clauses like this and the current amendment we are discussing in regard to abortion, also in regard to going through to full pregnancy and giving birth as women identifying as men?

Ms HILDYARD: In terms of being able to give you precise information about how every other jurisdiction in Australia has dealt with this particular matter, I will have to take that question on notice.

Ms CHAPMAN: I have another question.

The CHAIR: Deputy Leader, you have had three.

Ms CHAPMAN: I understand that, but can I just put my case as to why it is necessary?

The CHAIR: No, just ask the question. Let's cut to the chase. Just ask the question.

Ms CHAPMAN: On the next page, because this is quite an extensive clause, it relates to an issue other than what we have been talking about, and that is the penalties that apply to a medical practitioner, a person who causes the abortion of a foetus. I raised during the debate the use of the word 'patient'. This is in the proposed section 82A amendments so that now the word here is going to be 'patient' instead of 'woman' instead of 'person' so that there is an inconsistency of language.

I think I have this correct; I think the Minister for Education who had the carriage of the debate a week or so ago indicated that she would be prepared to look at this question of making sure we have consistent language anyway. Is that something the government has considered and are you proposing to tidy up the language here so that we do not have 'woman', 'person', 'patient'?

Ms HILDYARD: Yes, I think I can commit that we will ensure that the language is consistent throughout that clause.

The committee divided on the clause:

Ayes 15

Noes 27

Majority 12

Clause thus negatived.

Clauses 10 and 11 passed.

Clause 12.

Mr PEDERICK: In regard to clause 12, the issue for me is that the long title of the amended Domicile Act 1980 is defined as:

An act to abolish the dependent domicile of married women and otherwise to reform the law relating to domicile.

As I have said before, I have come from a very conservative background, and I certainly uphold marriage as being between a man and a woman. It concerns me that there are a few clauses here in relation to where 'wedlock' and 'marriage' are going to go, by the looks of it.

What concerns me is that the parliamentary secretary has been saying that she is wanting this legislation for all South Australians. However, I can assure the member for Reynell that there would be a lot of South Australians not happy to have the word 'marriage' taken out of any legislation, so I wonder what she has to say.

Ms HILDYARD: I will resist, on this occasion, entering into a debate about marriage only being confined to a relationship and a marriage between a man and a woman, but what I will say is this clause does not take away any rights from those people in our community who are in a more traditional marriage. What it does do is ensure that people of the same gender who live together, people of a different gender who live together and people who are in a domestic partnership are actually conferred the same rights as all of those people who live in a traditional marriage situation. So, it certainly does not take away any rights from them.

I think the member for Hammond and most members in this house would agree that, all over South Australia, there are people who live in marriage-like or domestic partnerships, whether they are people just living together or otherwise, who also deserve those rights, and those people are in communities right across South Australia. It certainly does not take away any rights from people who are married, but it makes sure that our language is up-to-date and reflective of our community in terms of the number of people of opposite sex but also of same sex who live together in a marriage-like relationship or in a domestic partnership.

Ms CHAPMAN: Forgive me if I am wrong in this, but it seems to me that this deletion under the Domicile Act has actually nothing to do with what the parliamentary secretary has just said. It has actually to do with getting rid of an obsolete provision in a 1980 act because it, at the time, recognised that a married woman's domicile is not dependent on a husband.

It was to rid ourselves, from 36 years ago, of what had become an obsolete provision and, therefore, its reference, even in legislation which otherwise is still relevant today—that is, to recognise the domicile of a person, including children—should go. I saw it as a tidy-up clause. If I am wrong, I want that clarified, but that is the way I understood it to be.

Ms HILDYARD: Can I just clarify that you are not wrong. I probably just reacted to the member for Hammond's comments and spoke about needing to include people in all different sorts of relationships in our laws, but the member for Bragg is correct.

Clause passed.

Clause 13 passed.

Clause 14.

Mr PEDERICK: This is certainly very similar to the previous clause 12. This is an amendment of section 8 of the Domicile Act 1980, which is the domicile of certain children. It is about deleting the words 'in wedlock'. Certainly, for the very same reasons, there will be many hundreds of thousands of people who would, apart from appreciate, believe that in wedlock is the right way to be. Section 8(3) in its full reading provides:

Where a child is adopted, his domicile—

(a) if, on his adoption, he has two parents—

it is interesting that it uses the word 'his', but anyway—

is, at the time of the adoption and thereafter, the domicile he would have if he were a child born in wedlock to those parents…

And it goes on. I had not picked up in my quick reading of the section before that it is very gender specific in referring to a child as 'his', and I wonder if we will have to come back and amend this act again. If the member for Reynell believes she is doing this legislation for the whole of South Australia, I would like that explained, and especially how that section has the word 'his' in it and not another term that includes 'his or her' in regard to children.

Ms HILDYARD: The intention of this clause in terms of removing the words 'in wedlock' is to make sure that all children are contemplated in this act. I am sure that right across South Australia children are born out of wedlock as quite a regular occurrence. I know that shocks the member for Davenport, but it is true. This clause is simply getting rid of something that is outdated to make sure that the provision actually reflects what happens in the community. I would also add that I think generally the term 'in wedlock' is one that would be considered outdated by many in our community.

An honourable member interjecting:

Ms HILDYARD: Not marriage, but 'in wedlock' is probably a term that is not regularly used.

Clause passed.

Clause 15.

Ms CHAPMAN: Subparagraph (3) relates to 'potential pregnancy', which is to delete 'woman' wherever occurring and substitute in each case. This relates to an amendment to the Equal Opportunity Act, so we are not talking about protecting a foetus to ensure that, irrespective of who the carrier is, he or she will be prosecuted if the baby is killed. We are talking here about equal opportunity legislation. Essentially, this legislation is there to protect against unfair discrimination for somebody in a workplace, etc., such as the opportunity to be employed or the opportunity for advancement. We have protection against ensuring that somebody is not refused access to tenancy in a property if they have children and the like. We do not need to go there. We have accepted that in a civilised world it is reasonable that someone who is pregnant or has children should be free of unfair discrimination—that is a given.

I am trying to understand this clause where we have 'potential pregnancy', because here we are talking about a future event. Deleting 'woman' from here I think is unnecessary, because here it is someone who has to be capable of being pregnant, as distinct from the reverse. So we are going from a criminal situation where someone might be a woman and becomes a man and therefore might avoid prosecution, but here we are talking about the potential pregnancy of a person who can only have that if they are a female. Do you see what I mean?

Ms HILDYARD: Yes.

Ms CHAPMAN: I know there was a comprehensive rejection of the law in relation to abortion. I do not want to reflect on the vote of the house, but can I say in a positive sense that I think your proposal was appropriate. However, what I would say here is that I am struggling to see how it would work and how it would be necessary.

Ms HILDYARD: I think that is actually a really good question. This particular area is an area that I dealt with a lot as an industrial officer and an organiser in the union movement. I am trying to think of circumstances where it would be relevant. I was thinking that in any workplace, if you take the example of discrimination against a woman—a person—who is pregnant or could become pregnant in the future, there are many cases where people of a particular age, etc., are discriminated against in terms of their securing of employment.

I am just wondering perhaps, and I think this is possible—I am just casting my mind back to particular industrial issues I have dealt with—if, for instance, a transgender person was going through the procedure to change their gender and, as part of that process, as you would in a workplace, you were talking about your hopes and aspirations for the future, etc., and you were talking about potentially being pregnant in the future, I think that unfortunately there are some employers who would discriminate against that person in terms of promotion just as much as they may discriminate against a woman who talks about being pregnant, etc., in the future.

So, I think that, yes, I am thinking of the sort of circumstances, and I do think that we could come up with circumstances where a person who has the possibility of being pregnant in the future could be discriminated against, just as women in many circumstances have been discriminated against in terms of securing promotion, accommodation, all of those things. I am sure we can't predict all of those circumstances, but I can certainly, casting my mind back to working in that environment, think that there is that possibility for discrimination.

Ms CHAPMAN: It is just that, at present, under the Equal Opportunity Act, it states:

Potential pregnancy of a woman means that the woman is likely, or is perceived as being likely, to become pregnant.

So, unlike the previous debate, this is clearly to deal with people who are (unfairly usually) denied employment or denied advancement or promotion because they could get pregnant. 'Now or in the next five years, she's a high risk. We won't put her in; we'll put the bloke in'—we have all heard that, and that is what is here in the act.

At present, we do not have a situation where someone who might be calling themselves transgender, intersexual, queer, whatever title they want to be, is capable or even likely to become pregnant unless they are a woman, because that is the reality, that at present only a woman can do that. If somebody was in the workplace who is a bloke and says, 'I want to apply for a job,' but openly says, 'I actually want to go through a change to my gender identification and I am going to become a woman, so be ready, guys,' no employer is going to be in a situation like that where they would be saying, 'This person could likely have a baby. I won't advance the new employee.'

A classic example is a colleague of mine from the law, Mr Stokes, who is now Ms Stokes—a competent criminal barrister, but now a woman, having moved from a bloke. Nobody who would be employing in that situation would be thinking, 'I won't advance them because they might be perceived to be becoming pregnant,' because they simply can't. They might adopt a baby, like any other male or female, but they are not likely to be pregnant, because that is actually physically impossible. Do you see what I mean? I am struggling here as to why we would change that, as distinct from me being completely with you in relation to the abortion law.

Ms HILDYARD: I do absolutely accept the member for Bragg's point and I do agree that it is a much less likely situation that what does happen in workplaces where women of a particular age and particular intention that is spoken about, etc., are discriminated against.

I guess what I was trying to articulate before is that I think there is a potential for men who are undergoing surgery, etc., and necessary medical procedures and identify as transgender to become a woman. If they were open about their situation and open with their employer about their intention to become pregnant at the end, or through the partial completion of that process, I do see that there could still be grounds for discrimination. Do you understand what I mean?

Ms CHAPMAN: I think I am hearing correctly, but if somebody in that circumstance said, 'I'm a bloke but I'm going to be a woman soon, and I hope to have children; I am going to have my breast enhancement and I am going to do what I can to do this,' nobody in their right might would not advance them on the grounds of potential pregnancy because we all know that at present this is completely impossible.

They could not physically have a baby; that is not even possible. In fact, if they walked around saying, 'I'm going to change my gender and I'm going to be having a baby,' they would not be advanced or employed for the fact that they are potentially going to be pregnant; they would not be advanced because they are in need of mental health services. If you can give me an example, I am happy to look at it, but I just cannot see that in this context.

Ms HILDYARD: One other circumstance potentially could be if a person who was born a woman but was in the process of transitioning to become a man and was considering pregnancy before that process—

Ms Chapman: But they are still woman.

Ms HILDYARD: Yes, but the point of this legislation is that if they are in the process of identifying their gender differently, we actually include—

Ms Chapman interjecting:

Ms HILDYARD: I understand that it is harder to think of those circumstances, but I think that in workplaces and in that process of transition, there is potential for that circumstance, so I would rather include them than not.

Mr KNOLL: Not that I am reflecting on a vote of the house, but we were dealing with an issue in clause 9 where we were talking about deleting the reference to 'woman' and going to 'someone who is pregnant'. Unfortunately, we have a similar situation in the middle of the amendment to this clause to remove reference to 'woman' and replace it with 'person', which is manifestly the same thing. That is a bit of an issue.

There are a couple of other clauses down the track which also deal with the same thing, which I think, again, we can either decide to vote on or not vote on. Because this is part of a whole heap of other clauses, this is an issue. I do not have an amendment—unless somebody else has an amendment?

The CHAIR: And you are looking at someone when you say that, obviously. The member for Newland has sprung to his feet.

The Hon. T.R. KENYON: I move:

Amendment No. 1 [Kenyon—1]—

Delete subsection (3) and renumber accordingly.

Amendment carried; clause as amended passed.

Clauses 16 to 35 passed.

Clause 36.

Mr KNOLL: Very quickly, again we are dealing with the same thing. We are dealing with the reference between a woman to someone. So, both parts of it again, the same deal. We are talking about the same issue and accordingly we are going to vote against it.

The committee divided on the clause:

Ayes 15

Noes 25

Majority 10

Clause thus negatived.

Clause 37.

Mr PEDERICK: This is a bit of a different angle to this bill.

An honourable member: A mangle.

Mr PEDERICK: An angle to the mangle. This is in relation to Part 12—Amendment of Landlord and Tenant Act 1936, and clause 37—Repeal of section 44 seeks to delete the section. I will read through it in a minute but I would like the member for Reynell to explain what deleting the section actually means in real life, for people to understand it. Section 44 is:

Exemption of sewing machines etc

It shall not be lawful to distrain any sewing machine, typewriting machine, or mangle, the property of or under hire to any female person, whether belonging to the tenant or otherwise, for any rent claimed in respect of the premises or place in which such sewing machine, typewriting machine, or mangle may be: Provided that any such person shall not be entitled to have more than one sewing machine, one typewriting machine, and one mangle protected from distress under this section.

I note it certainly has the reference to 'female'. I am just wondering if the member for Reynell can explain what is happening with the deletion of that clause.

Ms HILDYARD: Well, where do I start? How long do we have?

Mr Pederick: Is this another angle to the bill?

Ms HILDYARD: It is another angle to the bill in that a lot of the issues that we have traversed so far have been focused on gender identity and equality in that regard. Other parts of the bill, particularly this part, focus on gender and outdated notions of what is attributed to each gender, particularly women, given most of the outdated clauses, funnily enough, do not refer to men in a particular way.

This clause really has no relevance in current community life. It is predicated by saying that women are going to be particularly engaged in occupations where they are, if I am understanding what a mangle actually is, wringing out clothes, typing or sewing. By its very nature this clause basically relegates women being contemplated as engaged in occupations that require that equipment.

It is outdated in terms of current community life, because I think most, or certainly the mangle at least, does not exist anymore, or if it does it is in various historic places around the community; but it is also outdated in terms of the type of employment that it attributes to women, when we all know that women fully and actively participate in most areas of life. We do have some way to go, member for Hammond, but certainly we are getting there in terms of moving away from the mangle and the sewing machine and our typewriters. I hope that answers your question.

Ms CHAPMAN: Can I just raise one other aspect of this? I totally support the removal of these as distress items. I understand the explanation given for removing it, because these are items that as tools of trade are no longer contemporary. I say that notwithstanding that I still own a couple of sewing machines and I still sew, but fortunately I do not have to rely on it for income. There is probably an old mangle at the farm still, but I would not be rushing to resuscitate some income earning opportunity with that, and get out the old Bluo, hot water, and so on. I think it has probably been converted into a cray pot, that old machine.

In any event, it does raise an interesting point, though, not because of the removal of those items but similarly, as we have in bankruptcy, the protection of certain assets which are deemed tools of trade. Is there any provision to protect any assets under the Landlord and Tenant Act—and I have not looked at this yet—from distress when trying to enforce unpaid rent, which is basically what this is about?

It is a rule that says that landlords can recover their rent in certain ways, namely a distress order, but if you confiscate assets for the purposes of paying unpaid rent or damages to property you are not allowed to take certain things. We are taking those out for good reason. I totally accept that, but is there going to be some substitute, or is there already a substitute in the act which allows for items that are able to be established as tools of trade to be protected against distress?

Ms HILDYARD: I understand the member's point. What I can say at this point is that it certainly has not been contemplated in terms of the Landlord and Tenant Act 1936. We have not had that discussion or contemplated any clause that could provide that ability for landlords to collect or hold onto assets, etc. I think that could be another discussion; but the main intention of this clause is to rid ourselves of a completely outdated notion of how women earn an income.

Clause passed.

Clause 38.

Mr KNOLL: This is the same deal as what we have been doing with the previous ones, and again we will be looking to oppose it on the same basis.

Ms HILDYARD: I sensed that was so. I do not have anything further to add to my earlier comments in relation to clauses 9 and 15, so I will leave it at that.

Mr PICTON: I would like to ask about this clause and preface my comments in saying that, as I said in my second reading comments, I think that a lot of these debates have been a bit overblown in their importance. I have voted in favour of the previous sections but I have not really been too excited one way or the other because I do not think it will make a big difference.

Members interjecting:

The CHAIR: Order!

Mr PICTON: In terms of this clause, this looks to me as though it would make a difference in terms of not just being about payroll tax for maternity leave, but it would broaden the definition to be about payroll tax for paternity leave as well. I wanted to ask the parliamentary secretary whether that would broaden it to men who were getting paternity leave to look after their children which is more common now.

Ms HILDYARD: I think that is a really good question from the member for Kaurna. What this clause contemplates is payroll tax in relation to leave, etc. for a person who is pregnant. In the strict definition of paternity leave, that is generally provided at the moment in the act to the male partner of a person who is pregnant. It is not what is subject to payroll tax. However, I think that is a really interesting issue that we could explore.

Mr PICTON: To clarify, this would not cover the male partners; it would only cover the person who is pregnant.

Ms HILDYARD: Yes, it is talking about the person who is pregnant and their leave.

Clause negatived.

Clause 39.

Mr PEDERICK: I am very conservative and I guess the issue for me is that we are losing the title of a married woman in these three clauses that will be excluded if this legislation goes through. Perhaps I am appealing, sadly, to what is becoming an older age and perhaps a better age, but it is just another loss where our laws are being more socialised. I ask the parliamentary secretary, the member for Reynell, if these clauses come out, is there any effect on de facto partners or is that covered in other parts of the legislation that are being amended with these clauses coming out?

Ms HILDYARD: No, there is absolutely no effect in terms of de facto partners. This one is simply about removing wording that implies that a married woman could only be heard in court in relation to the settlement of estates, inheritance, etc. with the consent of her husband and that there is an application that had to be made to be able to give evidence separately from her husband, so that is simply about getting rid of that outdated language. It does not go to any other issues.

Clause passed.

Clauses 40 and 41 passed.

Clause 42.

Mr PEDERICK: I could say ditto, but that would not be giving due respect to married women. This is an amendment of the Trustee Act 1936, and repeal of section 22. This clause will delete the section that states:

When any freehold hereditament is vested in a married woman as a bare trustee she may convey or surrender it as if she were a feme sole.

Can the parliamentary secretary, the member for Reynell, explain whether taking out this clause impacts negatively? I do object to the term 'married woman' being taken out, but I think I am on the losing side of that argument. Perhaps she can explain how the clause works at the moment.

Ms HILDYARD: In terms of how the clause works at the moment, I do not think it does, because it does not have relevance in this day and age to talk about a married woman being able to convey land as if she were a single woman, because the same rights are conferred to all women—to all people—in relation to conveying land. Again, the repeal of this clause is simply about removing outdated language that has no place in the current context.

Ms CHAPMAN: Just in case my colleagues were in some way excited about the prospect of trying to salvage this clause, can I say that we have come a long way since the married women's property act of about a hundred years ago, and I applaud the government in getting rid of this clause. Whilst it attempts to recognise that married women have the same right as single women as property owners—and that clearly is the legal position—that has not always been the case.

It has been necessary for us to pass these laws in the past, and then to remedy the inequity of dealing with married women's property rights back with infants and imbeciles. It is just unacceptable that we have ever had that, but that we can say it now in the clear light of 2016. Nevertheless, if we understand the history, this was necessary to say, 'Hang on a minute; we're not going to restrict a married woman's rights because of the historical impediment that she suffered.' So, just in case the honourable member is getting excited, I will be voting with the parliamentary secretary.

Ms HILDYARD: Thank you.

Clause passed.

Title passed.

Bill reported with amendment.

Third Reading

Ms HILDYARD (Reynell) (17:47): I move:

That this bill be now read a third time.

Bill read a third time and passed.