Statutes Amendment (Surrogacy Eligibility) Bill

Final Stages

Consideration in committee of the Legislative Council's amendments.

(Continued from 14 February 2017.)

Amendment No. 1:

The CHAIR: Do you want to agree to this amendment?

Ms HILDYARD: I have some brief comments. As the house is aware, this parliament recently passed a fairly significant suite of reforms that absolutely advance equality for lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) South Australians. The reforms, importantly and rightly, include recognising the relationships and families of same-sex couples. Our Premier, with the support of the Leader of the Opposition, also recently offered an apology to LGBTIQ South Australians, indicating that he was sorry for the discrimination within the state's laws that LGBTIQ community members have experienced in the past.

Despite such significant progress, amendments have been passed by the other place which can only be described as discriminatory and which are contrary to the purpose of these reforms. The amendments have the effect of allowing for registered objectors under the Assisted Reproductive Treatment Act of 1988 to refuse the provision of assisted reproductive treatment to a person on the basis of the person's sexual orientation, gender identity or marital status.

In circumstances where assisted reproductive treatment is refused on such a basis, the registered objector is required to take steps to refer the person seeking assisted reproductive treatment to another person who is also registered under the Assisted Reproductive Treatment Act. These amendments will require objectors to register as such and that register of objectors will be held by SA Health.

Notwithstanding the inroads to equality we have made thus far, the other place has now passed amendments that allow discrimination by providers of assisted reproductive treatment. The amendments allow providers, based on the provider's bias, to withhold their services from someone based on the person's sexual orientation, gender identity or marital status. This is precisely the kind of discrimination we are trying to expel from our legislation and from our community, and I believe that it has no place in our legislation.

Our legislation should always be inclusive, not discriminatory, and should be a positive statement of the values of our community. These amendments do not represent the views of the majority of South Australians. Not only are these amendments unnecessary and offensive but they also contemplate discrimination that could potentially be unlawful under the Sex Discrimination Act of 1984, raising the risk of their invalidity.

The Sex Discrimination Act provides that it is unlawful to discriminate against a person on the grounds of the other person's sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy or breastfeeding. These amendments aim to legalise exactly that form of discrimination. If these amendments were found to be inconsistent with the commonwealth legislation, then, pursuant to the constitution, the state legislation could be invalid to the extent of the inconsistency.

I have indicated my objections and concerns about these amendments; however, the passage of the bill is so important for our LGBTIQ community and indeed for many others. So, despite my personal objection at the passage of these amendments, I will be voting in favour of them as a whole, and I look forward to all members of our community and their families having access to all the services that support their families.

Ms CHAPMAN: I indicate that, in respect of the amendments that have been passed in another place, I will not be objecting to them. The whole of this debate has been identified as one in which members have been invited to have no commitment to a party position so that they can vote according to their free will. I would say that, whilst I have supported the objective of the bill, there have been limitations in respect of it which I think have been outweighed by the importance of passing the bill, but what should also be understood is that this bill is and has been controversial, and there are divided and different views in the community about how it should be implemented.

We accommodate exceptions to discrimination law and other things to enable people not to be compelled into a situation of obligation, and let me just give one example. Not every medical practitioner in South Australia wants to or is prepared to undertake terminations of pregnancies. We do not need to go into all the reasons why. Not every medical practitioner is prepared to or wants to undertake prescriptions of morphine-based pain medication.

These are still areas of some controversy in the community. The consuming public who seek these services usually seek from their advisers someone who is sympathetic to that opportunity, and they then attend for those services. That is the way it works in a number of controversial areas, particularly in the medical prescription of drug administration or procedures which remain controversial today.

I imagine that there are others that would come forward, too. If there were some capacity to deal with female sterilisation or something of that nature, it would be controversial. At the moment, we have genital mutilation prohibitions in the state, and indeed the whole country, but these things change from time to time and we need to deal with them.

The best way to deal with controversial matters is to have some accommodation of those who are concerned about these aspects. For that reason, whilst I do not consider the Legislative Council amendments to be in a form I would like or prefer—I would rather them be entirely the reverse, actually—if we are going to have some kind of notification to the world as to who is prepared or not prepared to do something, then this is one way of doing it.

In that environment, within that envelope, I indicate that I will accept those amendments, but I would ask members who, like me, have been positive in the passage of this legislation generally to have some continuing understanding and respect for the fact that there are a lot of diverse views across party lines within our leadership in the parliament. Making statements about things that might offend, fracture or come into tension with discrimination law or anything else does not help. I will accommodate the amendments.

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

That the Legislative Council's amendment be amended by deleting subclause (2)(4) from proposed new clause 3C.

The reason for moving this amendment, and contrary to those views posited recently by the member for Reynell, is that some of us do not see this as the ability to discriminate but, rather, to exercise one's good conscience according to one's religious beliefs and to operate in your chosen profession in a way that allows you to conform with your generally held religious beliefs. In fact, I share the very eloquently put views of the member for Bragg. I think these amendments are perhaps not perfect, but they are workable. My amendment seeks only to remove the publication on a website, the nature of the publication on a website, and otherwise makes no changes to the amendments as they have been received from the upper house.

Mr KNOLL: I am happy to second the amendment put by the member for Newland. It is interesting that in this debate we are being asked to respect the rights and freedoms of others, yet when we try to institute something that helps to respect the rights and freedoms of different individuals that becomes a little more problematic. I would be extremely worried about a bill that puts into law the requirement for those with a religious objection to anything to be named on a list on a website. I think that is an extremely dangerous precedent to set. I can think of a whole host of other situations where somebody's privately held beliefs should remain their own and do not necessarily need to be listed McCarthy-style, like some sort of witch-hunt, to out those who have what I think are quite widely held religious beliefs.

To have the details of a person's religious objection to registering their objection published on a website I think is a very retrograde step in religious freedom within this country. I think it is extremely important that this house knocks out this clause and protects people's right to religious freedom and the right to privacy and the privacy of people's own deeply held beliefs in this regard.

The mandatory nature of these requirements in the first place gives me pause. Again, as the member for Newland said, there has been an attempt by the Legislative Council to create a workable process through this. I do not think it is perfect. I think it would be much better if there were no need to register an objection in the first place but for someone to simply be able to make those feelings known to people as they come across them. The need for a more formal bureaucratic process I find unnecessary. Having said that, without unpicking the entire bill, removing this requirement for the public website to be maintained is an appropriate step.

I urge my colleagues in this house not to take this very dangerous and retrograde step and to respect freedoms and deeply held beliefs that have been the norm in this country for a long, long time. Whilst what is being sought to be done here is to move our society forward in the way that we deal with these very difficult issues, we have to be mindful and respectful of those who disagree. It is the hallmark of a democratic and cohesive society that we allow differences of opinion but also allow people to express their differing opinions without being punished or outed and potentially vilified for their deeply held beliefs.

I do not want to be alarmist, but I think a number of other times in human history people have been outed for their deeply held beliefs and have suffered all the consequences. Again, I do not want to be too alarmist in this regard, but I think it is extremely important that this house moves to knock out this very retrograde clause.

Amendment carried; the Legislative Council's amendment No. 1 as amended agreed to.

Amendment Nos 2 to 5:

Ms HILDYARD: I move:

That the Legislative Council's amendments be agreed to.

Motion carried.