Bills

Family Relationships (Parentage Presumptions) Amendment Bill

Final Stages

Consideration in committee of the Legislative Council's message No. 71.

The CHAIR: This bill returned has been from the Legislative Council, and we have an additional amendment we are going to deal with first. Attorney, do you want to say anything about the additional amendment, that is, schedule A1 to insert after clause 1 a new clause 2? Is that right?

The Hon. J.R. RAU: Yes, that is right. I have a couple of amendments here which are basically all of a piece; the first one is with respect to schedule A1 clause 2. The first amendment makes clear that a certificate issued by the registrar under section 46 of the act may only contain particulars identifying the biological parents of a person with the written consent of that person, or if that person is not an adult each legal parent or guardian of that person. This is to ensure that the privacy of the person in question is protected.

For consistency with the amendments to section 14 of the act, this amendment provides that new subsection (1a) of section 46 expires on the day on which the donor conception register is established under section 15 of the Assisted Reproductive Treatment Act. Just to explain: there are some things in this legislation which will become redundant when that legislation comes in. So, there are some transitional matters which are being addressed here.

With respect to the second clause, clause 2(2), this amendment clarifies that amendments in schedule A1, which are the amendments to section 14 and 46 of the Births, Deaths and Marriages Registration Act 1996, will be taken to be revoked on the day the donor conception register is established by the minister under section 15 of the Assisted Reproductive Treatment Act 1988.

This deals with the situation where the donor conception register is established before the amendments contained in schedule A1 commence. Also, clause 2(3) is an amendment that inserts new subclause (3) into clause 2. The new subclause (3) would provide that, for the purpose of subclause (2) and any provision of the Births, Deaths and Marriages Registration Act 1996, the donor conception register will be taken to have been established on the day determined by the minister to whom the Assisted Reproductive Treatment Act is committed.

This will allow for the date to be clearly identified, an important factor given the effect that it will have on the amendments contained in schedule A1. There are really only two issues there: one is the consent of the person in question for these entries to be made; and the second one is for the alignment between this bill and the other act, the Assisted Reproductive Treatment Act, so that there are no gaps.

Ms CHAPMAN: I understand that the Attorney-General has just spoken to his amendments on his schedule of 39A, and I thank him for that. What has come back on a primary document, if I can call it that, is reference to the House of Assembly's amendment No.1, which the Legislative Council has agreed to, it appears, and then it has a Legislative Council additional amendment, which has been moved, as I understand it, by the Hon. Gerry Kandelaars, and that relates to an amendment to clause 2, the commencement date.

When the Attorney was helpfully advising us on what he intends to move and giving an explanation of it, that is an amendment to what? I do not have the Legislative Council's amended bill.

The CHAIR: We have sent it to them. They have sent it back to us.

Ms CHAPMAN: Normally, it comes back to us with an indication of what the bill is, as amended by them.

The CHAIR: I think they only think it is minor, though.

Ms CHAPMAN: It may be minor but, if we had the bill back we would then know what we are talking about. Can we send a request to the Legislative Council to send us back the bill in the amended form that they have passed, because that is strictly what they are supposed to provide back to us, and we will deal with this in the morning or whenever we can? It will then make sense when I listen to the wise contribution of the Attorney, followed by the wise contribution of Mr Kenyon.

The CHAIR: This is the amendment coming back from the Hon. Gerry Kandelaars. They are adding this clause 2 to our schedule and the Attorney is changing that by inserting a line, removing some words and then inserting more. I am advised that, because the second part of 39A in the Attorney's name is consequential, we are only dealing with the first two parts on his schedule 39A first.

The Hon. J.R. RAU: I move:

That the House of Assembly agrees with the amendment made by the Legislative Council with the following amendments:

Schedule A1—

Clause 2, inserted subsection (1a)—delete 'the biological parents of a child at the express request of the applicant for the search in relation to which the certificate is issued' and substitute:

a person as a biological parent of another person with the written consent of that other person or, if that other person is not an adult, of each legal parent or guardian of that person

Schedule A1—

Clause 2—after inserted subsection (1a) insert:

(1b) Subsection (1a) expires on the day on which the donor conception register is established under section 15 of the Assisted Reproductive Treatment Act 1988.

Ms CHAPMAN: I refer to amendment No. 1 in the name of the Attorney-General, with reference to the amendment to schedule A1 twice appearing. In respect of that, my understanding of the Attorney's position is that the first amendment is to ensure the privacy of a biological parent who has not consented to the release of information.

The CHAIR: Yes, that is what it looks like to me.

Ms CHAPMAN: That seems reasonable. The second amendment is to ensure that we line up with an anticipated piece of legislation which will make some sections of what we are dealing with at the moment redundant if and when the Assisted Reproductive Treatment Act is amended; is that correct?

The Hon. J.R. Rau: Yes.

Ms CHAPMAN: That sounds sensible; I cannot raise any objection to it at this point. From our point of view, all of this bill is a conscience vote and we do not have a party position, but I have no questions.

The Hon. S.W. KEY: I would just like some further clarification from the Attorney about why he is actually moving these amendments. I am not clear on why, at the last minute, we would be dealing with amendments that nobody who has been following this debate seems to know about. I would just like to know what the urgency is, and what they actually mean. Not having the bill or the information in front of me, it is a little difficult to know whether or not I support it.

The Hon. J.R. RAU: The urgency is that I understand this thing is supposed to be dealt with now. That is the reason for the urgency. As to these matters, it strikes me that if a certificate is going to be issued, under section 46, which contains particulars identifying individuals as biological parents, it is not unreasonable to actually have the consent of that person or those people for their names to be entered on that certificate.

The Hon. T.R. KENYON: It is my understanding—and the Attorney can clarify this or not—that this is already the current practice of the office of births, deaths and marriages, as to who can or cannot access information.

The Hon. J.R. RAU: I believe that is the case. But for this amendment, there is a question about who 'an applicant' might be, and I think it is important for that to be resolved.

Motion carried.

The CHAIR: We are now going to deal with the consequential amendment, which is on the second page from the upper house and deals with the second two. The Attorney might like to move the last two amendments on his sheet.

The Hon. J.R. RAU: I think, because my second amendment is 'on the one hand this and on the other hand that', it probably does not make any difference, but the second is attempting to align the operation of this legislation with the revocation, introduction or whatever of the other so that there are no gaps or untidy moment. I move:

Clause 2, page 2, lines 6 to 8—

Clause 2(2)—after 'the Governor' insert:

(unless the donor conception register is established under section 15 of the Assisted Reproductive Treatment Act 1988 before that day, in which case Schedule A1 will be taken to be revoked on the day on which that register is established)

Clause 2, page 2, lines 6 to 8—

Clause 2—after subclause (2) insert:

(3) For the purposes of subsection (2) and any provision of the Births, Deaths and Marriages Registration Act 1996 amended by this Act, the donor conception register will be taken to have been established under section 15 of the Assisted Reproductive Treatment Act 1988 on the day determined by the Minister to whom the administration of that Act is committed.

The Hon. S.W. KEY: As much as this might be difficult, seeing that it is a Legislative Council amendment, can you explain what I am reading here as 'Clause 2, page 2, lines 6 to 8' actually means? Also, for clause 2(2) or clause 2, could you explain what the meaning of that would be should we support it?

The Hon. J.R. RAU: As I understand it, there is another completely separate piece of legislation, which is the Assisted Reproductive Treatment Act. That legislation contemplates that the minister to whom that is committed is, at some point in time, to establish a donor conception register, under section 15 of that legislation. At the point that that occurs, the subject we are talking about now becomes largely irrelevant because a new piece of legislation is then managing that matter. So, what we are dealing with here is an interim matter.

What I am trying to do with the suggested amendments here is to say that if this part gets operational before that register is complete, then certain things happen, and if that register is complete before this becomes law then other things happen, so that we don't have two things conflicting at the same time.

Motion carried.

The CHAIR: Now we are going to move the amended consequential amendment as amendment to which the member for Newland does not have to vote if he does not want to; or are we dealing with this separately? You have amended the clause, and we are now going to put the amended clause, and then we are going to talk to the amended clause before we vote on it, and then you do not have to vote for it.

The Hon. T.R. KENYON: Are you saying I do not need to move an amendment?

The Hon. J.R. RAU: You do not have to.

The Hon. T.R. KENYON: So I vote against the clause rather than moving an amendment to the clause?

The CHAIR: We are going to put the amendment as amended. There are two amendments rather than one. Could the person up there using the flash stop, please? It is hard enough to concentrate on what we are doing without flashes everywhere. You are talking to it, sorry, yes.

The Hon. T.R. KENYON: It is my intention to oppose the consequential amendment of the Legislative Council. Effectively, what we have come to is a disagreement, from my point of view certainly, about when the recording of biological information comes into operation. The original intent of my amendment, when it was in the house, was to ensure that the information around the biological parentage of a child was recorded and available to that child. My amendment had the effect of making sure that that was recorded on the birth certificate.

The Hon. Mr Kandelaars in the other place moved an amendment that moved the recording of that information from the birth certificate to the database. That is something that I am completely relaxed about because the original goal was to make sure that somewhere in someway the biological information about the parentage of the child was recorded, and that has been achieved by Mr Kandelaars' amendment, and for me that is a reasonable way to do it.

Now we are down to the consequential amendment, which delayed the start of that clause for 12 months. That is what I am opposing, the delay in that start. I think that information, if it is fit to be recorded, should be recorded straightaway. I understand that there is a review going on of a separate act which contains a register that would record this information, but that was always the case even when we were debating this clause the first time.

There is no reason, really, not to record this information. There would certainly be an administrative matter of the transfer of the information from the births, deaths and marriages database to the register, should it come into operation at a later date in the assisted reproductive technology bank. There is no reason not to start recording that. My view is that we should oppose the consequential amendment that delays the start of recording information, and I will be voting against this amendment.

Ms CHAPMAN: I think it comes back to you as a speaker because you are not moving your motion to amend. If you were successful, and the new database therefore was to be established straightaway, are you proposing that it assemble that information and, if and when the assisted reproductive technology act is passed and the regime under that comes into play, it will somehow or another be transferred; is that your proposal?

The Hon. T.R. KENYON: To be clear, the reproductive technology act is already in operation. There is a review of that act. Within the act there is the ability for the health minister to create a register of information about the parentage of children created using assisted reproductive technology. The review will look at whether that register, which is currently not in operation, should come into operation or not; so, that is underway.

If, under the current bill we are discussing now, the biological parent information is recorded on the database of births, deaths and marriages—which is not created, it already exists, it is just added to that—and then the register comes into operation at a later time, the transfer of information between those two will be an administrative matter. Nothing in either bill requires that information to be transferred. It would make sense to me that it does get transferred, but I suspect that is a matter for the health minister and the Attorney-General to work out between them.

It would make sense that that information is transferred, but at least if it is recorded immediately upon the passing of this bill, or when the bill becomes an act and comes into force, there is no reason why it cannot be transferred. I think the goal here is to record that information and make it available to children at a later point should they choose to seek it out. In my opinion, there is no reason to delay that by 12 months.

Ms CHAPMAN: The only question I have as a consequence of that is: if this database is simply going to be the raw data placed there, as per the act we are about to conclude the passage of, and the review that is to be undertaken under the Assisted Reproductive Treatment Act comes up with a list of things that ought to be put in as a criterion about what is to be included, what is not and who is to get access to it and the like, which is inconsistent with just the raw data which would otherwise be extant and available, as you are indicating, then are we then at risk of prematurely, I suppose, commencing the database before we have had the benefit of the review to identify what criteria should go with it?

The Hon. T.R. KENYON: It is possible that the review could identify further information about the children that should be recorded, but it is unlikely not to include information additional to the parents, in my view, rather than not include the parents and include some other information. It may come up with a recommendation. It is possible that the recommendation would be not to start a separate register under the Minister for Health, but in fact include all of that information under the births, deaths and marriages database; that is a possible recommendation as well.

The point is the child looking for something in the future to find their biological parentage, and if that is recorded somewhere that is the whole point of what I am trying to achieve. In my view, that is a worthy goal in itself. It should be commenced as soon as possible, and there is no reason to delay it for 12 months. I understand there is a review going on. The review may require further information other than just the parentage. I do not know, but I would be very surprised if it did not include the parentage.

Ms CHAPMAN: I think I understand now what you are attempting to do, and obviously you are avoiding any delay in the commencement of what you are principally trying to achieve. For example, this morning we discussed a legislative review paper that was proposing to set out a lot of criteria that ought to be applied for the Registrar of Births, Deaths and Marriages in the registration of transgender surgery and, in the event of those circumstances, all the information and the obligations that were to go with the relevant parties.

A whole lot of recommendations were there about what we were to do if there was a transgender of a child (that is, someone under 18) and a whole lot of rules about information (whether it should be on a birth certificate or whether it should be in a separate area), in other words, a code of practice that is to sit around the future of how we register change of gender and how the births, deaths and marriages registrar is to operate it. It just seems at the present time that, if we follow your approach, this new process is going to be naked of any instruction or detail of criteria upon which the registrar is to function.

The question then really arises as to whether you have had any discussion with the Registrar of Births, Deaths and Marriages as to whether he or she—I am not sure who it is at the moment—

An honourable member interjecting:

Ms CHAPMAN: —has actually indicated to you that she is happy to progress to this without having any real supporting regulatory regime as to how it is going to operate, what she is obliged to do, who she is obliged to give it to, whether there should be any circumstances in which it is to be withheld, and all those sorts of things. I am really asking about the rules that sit around the bare obligation, and whether she has agreed to do that.

The Hon. T.R. KENYON: Those rules were just passed a few minutes ago in the amendments that the Attorney moved, in that they limit who the information held on the database can be given to, and it is the child themselves or, in the event that they are under 18, the parent or guardian of that child. So, there is actually fairly tight criteria that we passed a few minutes ago. In terms of the technical difficulties, it is really adding a third person rather than the two.

Currently, we record the biological parents of a child because, for the most part, we record the mother and the father. That is where it is known, of course, because sometimes it is not known, so we record the mother and not the father. It is a necessary consequence of a same-sex relationship that there is a third person involved in the creation of a child and my amendments seek to record that third person. Technically, it is not a particularly difficult task; it is, effectively, another field in a database.

Mr KNOLL: I will make a few comments on this. First of all, the reason that this is getting confused, and we have had these subsequent amendments, is that essentially this parliament has already twice agreed to this principle. The idea of a register is something that is contemplated in the Assisted Reproductive Treatment Act and that already exists. When we dealt with this amendment when it was last before this chamber, this chamber agreed to an amendment that again reinforced the principle that somewhere we should be keeping the biological information.

The amendment from Gerry Kandelaars in the other place merely sought to move that from the birth certificate to the register. Again, that amendment is consistent with the principle that the biological information needs to be kept somewhere. In response to the deputy leader, the recommendation in the Legislative Review Committee's report on the inquiry into the Sexual Reassignment Act asks to do exactly the same thing.

I think recommendation No. 3 or recommendation No. 4 states (and I suppose it is slightly different) that where somebody changes sex that that information is not recorded on a birth certificate, but on a register or database that sits behind the birth certificate. So, it contemplates exactly the same types of things that we are contemplating here.

Ms Chapman interjecting:

Mr KNOLL: Yes; it is all trying to achieve the same end. I certainly agree with the member for Newland's proposal that this thing should start straightaway. This parliament has already twice voted that this information needs to be recorded somewhere, and I look forward to being able to vote against that consequential amendment so that this important information is recorded from its proclamation.

The Hon. S.C. MULLIGHAN: Might I ask a question of the member for Newland, following on from some of the salient points that the deputy leader just raised. My question is, however, a bit more rudimentary, and that is, on the basis that the member for Newland's proposition succeeds and there is the immediate establishment of this database, what will be recorded, in that instance, on the birth certificate? Will it be the biological information or otherwise?

The Hon. T.R. KENYON: No. So, the effect of Mr Kandelaars' amendment in the upper house was to take the recording of the information from the birth certificate, which had been the effect of my initial amendment, and put it into the database. There is a database for all people in Births, Deaths and Marriages. Not everything that is on the database is on the birth certificate. This records the information so it is available and on that database that exists, and it can be requested by the child, which is what I was seeking to do, and they can know their full history, but it is not a public document in that it is not on the birth certificate.

For all intents and purposes, you will have a birth certificate with two parents, the nominal parents, who may be a same-sex couple or, in fact, the actual biological parents, so that would be on the birth certificate. On the database will be all three people involved. In the case of a same-sex relationship, it will be the two presumed parents and the biological parent—the third person.

The Hon. S.C. MULLIGHAN: I am sorry that I may be asking this in a manner which may require you to resort to the use of sock puppets to adequately explain this to me, but just to be absolutely clear, the intention of what you are attempting to achieve here is that the presumptive parents can appear on the birth certificate and any further information regarding, for example, the biological parents will not sit on the birth certificate necessarily; it will sit behind that on that database.

The Hon. T.R. KENYON: That is exactly right. The birth certificate still remains that sort of flexible document that allows the presumed parents to be on the birth certificate but not necessarily the biological parent because of whatever circumstances exist. The biological history of the child will be recorded on the database, but it will not necessarily show up on the birth certificate. Yes, you are right in your question.

The CHAIR: Everyone is with that now? Because what you are actually also saying is that it starts sooner.

Ms Chapman interjecting:

The CHAIR: It says 'three months' on the original act.

Ms CHAPMAN: But he is rejecting it altogether.

The CHAIR: He is saying '12 months'. The consequential amendment is saying '12 months'.

Ms CHAPMAN: Can I just clarify that? My understanding at this stage is that Mr Kandelaars has moved an amendment in the upper house which puts a three-month and 12-month time limit on the disclosure of the operation of the act. What has happened in it coming back to us is we have had a proposal by the Attorney to say, 'Let's get rid of that and make it contemporaneous with the transfer of certain other legislation', and the Hon. Mr Kenyon is saying, 'Get rid of it altogether. I don't want any time limit on it. Commencement is to be straight away.' If I have not got that right, can somebody tell me?

The Hon. J.R. RAU: That is basically right. Can I just say, for what it is worth, in respect of the member for Newland's points I have a great deal of sympathy with his proposition. In fact, I obviously agree with his point about people having every possible opportunity to have access to information about their biological parents. I totally agree with that, absolutely, but I ask members to bear in mind that this register, which is able to record this material, does not presently exist.

So, whilst I agree, again, with the member for Newland that it would be terrific if we could snap our fingers and as from today this information would be recorded, the fact is that the capacity to do that simply does not exist. I am concerned about the notion—albeit I understand why—of the parliament passing a piece of legislation which requires something to be done which all of us need to be quite aware will not be capable of being done at a moment's notice.

Ms CHAPMAN: It is just that the original bill says 'three months' anyway.

The Hon. J.R. RAU: Yes, and this has been one of the perennial issues with this bill. As a matter of reality, amongst other things, and leaving aside the question of the biological identity of a person which, as I said, I strongly agree with the member for Newland about, I am also aware of the capacities and the difficulties confronted by the registrar. I think it is my duty to make that information available to the parliament and not allow the parliament to blindly go forward and legislate to achieve something at a moment's notice which I know, and I think all of you need to know, will not happen. That is my proposition, that is all.

I do not disagree with anything in terms of the objectives or the principles that the member for Newland is espousing. What I am raising is a much more prosaic sort of matter, and it is simply capability. I am just asking that we, as a group, take that into account because to ignore that would be, I think, not responsible.

Mr KNOLL: I have sympathy for what the Attorney has just said, except that I am assuming a register was contemplated and passed as part of the ART Act. The fact that it has not already been put into practice after that act being passed suggests that whether there is a time limit or no time limit it will get done as soon as it can get done, and I do not think anything we do here necessarily changes that.

The Hon. J.R. Rau: But done by the registrar or done by—

Mr KNOLL: In this case we are saying done by the registrar.

The Hon. J.R. Rau: I do not think that is being—

Mr PICTON: I just want to clarify something, following what the Deputy Premier was saying. Could he give us some information in terms of what the potential time frame of doing this would be? On the face of it, it would not seem such a complex task to add another field to what they would already have as part of their existing database for entering all birth information.

The CHAIR: Are you trying to help, or are you being an agent provocateur?

The Hon. J.R. RAU: No, he is being helpful; he is asking a very pertinent question. It is a poorly known fact that I am not an expert in technology, so whilst it seems to me, as a matter of logic, that adding an extra little thing in somewhere should not be too hard, I do not know whether the machine is amenable to having another thing added in or not. I do not know anything about the IT side of things, other than ever since I have been involved in this place—and more particularly since I have been a minister—every time I hear the words 'IT' and 'estimate' I realise that something incongruous is about to emerge. I just leave that out there.

That said, the Hon. Mr Kandelaars' amendment went with a period of 12 months, which was intended by him to be a safe period. My advice is that Births, Deaths and Marriages say they would require a minimum of six months, so the answer is somewhere between six and 12, I guess. For what it is worth, I can say that once this goes through, in whatever form, it will be my request of the Births, Deaths and Marriages people that they get on with it quickly.

There used to be a thing on one of those computer machines where it gives you a spreadsheet—

Mr Picton: They still have them, spreadsheets.

An honourable member: Excel.

The Hon. J.R. RAU: Excel, that is it; you add in different things and you press buttons and graphs come out. I am not sure they have one of those that BDM. I am not sure it is that—

Mr Knoll interjecting:

The CHAIR: I am calling members to order, and we are now going to vote on the amended consequential amendment.

The committee divided on the consequential amendment as amended:

Ayes 18

Noes 22

Majority 4

Consequential amendment as amended thus negatived.

The CHAIR: The committee has considered the amendments and consequential amendment referred to it and agreed to the additional amendments but not to the consequential amendment.