Bills

Surrogacy Bill

Committee Stage

In committee (resumed on motion).

New clause 5A.

Mr PICTON: Before we broke off for lunch and question time, we were discussing the amendment from the member for Badcoe, which essentially was a discussion about the fact that there is clearly a risk involved here. It is something that we need to consider. The member for King originally proposed a similar amendment to the member for Badcoe's. She now has an amendment that is solely focused on a police check. The member for Badcoe's amendment is focused on a working with children check.

All of us who are quite often involved in discussions with constituents about the difference between the two know that there is a clear difference between a police check and a working with children check. A working with children check checks multiple databases; it checks around the country and obviously identifies things that will not have gone through the court and legal process to reach the high bar of having to be on a police check.

If the parliament is minded to say that there is a risk here—and I think that there is—then a police check sets a higher bar for something to come up than a working with children check. A working with children check is being discussed as though it is some sort of onerous, unprecedented check that no-one has to do. Go and talk to people in the community because—

The Hon. Z.L. Bettison: 350,000.

Mr PICTON: —350,000 South Australians already have one of these. They would get the tick immediately because, if you want to help your surf lifesaving club, your library, your school or your CFS brigade, chances are you probably already have one of these, and 350,000 South Australians already have one. If we are making somebody who volunteers for reading in a school get one of these, I do not think it is such an onerous request to deal with what is hopefully a very small risk here but is a risk all the same. I think it is important that we as legislators consider the worst case scenario possible and consider that in our drafting of this legislation.

I did have a look at what is the case in Victoria. It is very true that in Victoria there is a legislative requirement that if you have a surrogacy agreement it is more onerous than here, in that you have to go to a Patient Review Panel to get approved, which is not being proposed here. As part of that application process to apply to the Patient Review Panel, you not only have to get the police check, as is being suggested now in the revised amendment by the member for King, but you also have to get what they call a child protection order check.

A child protection order check is essentially the same as we are talking about here, so there is already precedent for this in Victoria. If the Victorian system only checks that database in Victoria, that is a bit of a shortfall because clearly we now have a national system. All the states and the commonwealth have spent a lot of money setting up a national system and database to make sure that this information can be shared across the country.

I guess we could go down the path of having just a South Australian child protection check, as the Victorian parliament have sought to implement there, but that would seem a bit of a shame when you have a system already in place and when you have processes around the place nationally.

I would like to support this legislation. I supported the legislation when we previously debated the surrogacy legislation in this parliament. That legislation has passed, so we do have surrogacy legislation on our statute book. I am happy to support these changes to our surrogacy laws that the Attorney-General is putting up; however, I do think that it is important that this amendment be carried so that we address what I think is a risk that we need to consider in this parliament.

I think that there is precedent for it in Victoria. There is a system already in place that can deal with it. I think that the bureaucratic stumbling blocks that the Deputy Premier is trying to put up in place of it that are really trying to stymie it can easily be navigated. I think that there are a number of people in the parliament who would like to see this reform addressed, but who would like to see the issue the member for Badcoe has raised addressed also, and would be uncomfortable if that risk were not addressed somewhere in our legislation.

I hope that members will see the benefit in supporting this legislation so that we can get these changes done, and we can do so in a way that addresses what risk is here, which we should consider. As minimal as it may be, it is something that the parliament can deal with, and I hope it gets the support.

Dr CLOSE: I rise to speak briefly on this amendment, and in doing so indicate my support for the bill and for the intent of the bill, and congratulate the Attorney-General on bringing to the house in order to regularise and make more straightforward the process of surrogacy in South Australia. I am sure there will be many couples and many people who will be very grateful that this is happening.

I have thought long and hard about this amendment, and I have listened to many of the contributions from members on both sides. I have not heard all contributions, but the member for Heysen made probably the most cogent speech that I heard in the argument as to why this amendment would not be supported. I started from a position of thinking that the state does not necessarily have a role to intrude on the question of whether someone is fit to be a parent. I accept the caution that he raised, that we are in complex moral territory in separating some future parents into one group and other future parents into another group, and I accept it that is a caution that is well made and right to have been raised.

On the other hand, I have also reflected on the unique experience that surrogacy is—the experience for the intending parents, of course. However, the experience I wish to focus on is the experience of the woman who is carrying the child. I am lost in admiration for the generosity of women who choose to be surrogates. I try to resist overpersonalising my view about legislation, because it is a mistake to think only from your narrow experience. I would have found that very difficult. Having carried two children, the idea of in any way being parted from a child who has been a part of me would be too difficult for me.

The fact that there are women who are prepared to do that in an act of generosity is remarkable, and I understand that the people who were involved in the consultation process were notable in their very high calibre of ethics and good intent in being prepared to be the carrying person, the woman. However, I think that in part of that process of making the decision that you are prepared to do that—less so, of course, when a sister is doing it for a sister or extended family, more so when doing it for an unknown couple—is the idea that you would want to know everything you could know about what might happen to the child that you have carried for nine months, that you felt move and kick and that you have gone through the process of giving birth to.

You would want to be reassured in every way that you could be reassured that this will be good for this child, that this is something that you will never live to regret having done. It seems to me that that makes the difference that entitles us in this chamber to choose to legislate for a working with children check. As the member for Kaurna said, it is a check—I have one—that most of us in this chamber will have through our interactions with schools and other programs with young people. I certainly had one as the minister for education and child protection.

It is not an onerous assessment. It should not stray in interest beyond the question of whether the person receiving the check has matters that would be of concern in their treatment of children. I think that is something we can offer to women who are considering going through this extraordinary process. It will assist them in feeling confident that it is the right decision.

In saying that, I acknowledge, of course, that no guarantee is delivered with the working with children check—of course there is not—but it is an exploration of the kinds of questions that I think a woman carrying a child for someone else would want to have asked and answered by experts. Having acknowledged the difficulty and moral complexity of this amendment, it is my determination to support it.

The CHAIR: The member for Heysen can speak again. He has the call.

Mr TEAGUE: I rise very briefly and really more in response to the remarks of the member for Kaurna and I respect and have listened carefully to the contribution from the deputy leader. In the context of the member for Kaurna's remarks, it was not clear to me—and I might have referred to it only briefly in my contribution prior to the adjournment—whether the member for Kaurna was aware of the consultation process that is ongoing in Victoria.

I want to be very explicit about that. I have to hand a document headed 'Summary of consultation', dated 28 August 2019, which refers to the Minister for Health in Victoria, the Hon. Jenny Mikakos MP, having announced on 3 July this year:

…the Victorian Government would undertake further consultation on the option of removing the requirement for women (including surrogates) and their partners (if any) to undergo police and child protection order checks prior to accessing assisted reproductive treatment.

I read from the opening paragraph of that document. It makes clear that the process of consultation is underway. The very clear indication that has come from that consultation is that the process of mandatory checking that has been in place in Victoria for some time has significant detrimental aspects to it, is not working and is likely to be brought to an end for those reasons. I just want to make clear that the Victorian experience ought not be regarded as some sort of precedent for us to follow in this state. I commend this relatively short document to members interested in participating in the debate on this aspect.

Mr ODENWALDER: I rise to make a very brief contribution on the amendment brought by the member for Badcoe to this bill. I want to state from the outset that this is a bill that I want to support. We debated some of these changes in the last parliament. My memory of it is becoming increasingly vague, but I do think that there is some tidying up to do. I think that this bill goes a very long way towards that, but I want to echo some of the concerns of some other members of this place in regard to this bill.

Those concerns are significantly ameliorated by the amendment first brought by the member for King. I think we should not forget that. It was a brave move to bring it in, trying to amend and improve the Attorney's bill. I know how hard it is to improve a bill brought in by the Attorney; I have been there. Ultimately, you were not successful, but the member for Badcoe grabbed the baton. I am not going to go over again the debate that was traversed by people like the member for Playford, the member for Kaurna and the member for Lee, but it is important to have these protections within the bill. What is the check called?

Ms Stinson: Working with children.

Mr ODENWALDER: The working with children checks; I forgot the name of the check. It is important to have those. I have not had the experience of being a minister of the Crown and being involved in COAG meetings—I am not lucky enough yet, Attorney—but I do understand that these are agreements; agreements can be changed. I do not think it is insurmountable for someone of the Attorney-General's wit to get into a room and try to change the rules in order to accommodate this simple but significant change.

I am not going to traverse the ground that others have. I rise simply to say that this is a bill I want to support, but this is a bill that I will not support without the safeguards proposed by the member for Badcoe.

The Hon. V.A. CHAPMAN: I seek to make a personal explanation.

The CHAIR: Attorney, you have the call.

The Hon. V.A. CHAPMAN: During the course of the debate on this matter, the most recent contributor and other members have suggested that as Attorney-General and in my attendance at CAG, that is, the Council of Attorneys-General, this is a determination as to the terms of the agreement which we are discussing. I wish to place on record that the correct position is that this is a COAG agreement—that is, a council not of Attorneys-General but obviously of the premiers and the Prime Minister. Some other members have made that mistake. It might be quite inadvertent, but I just make the point that this is not within the purview of me as Attorney-General meeting at the national meeting. It is a leaders of government and Prime Minister COAG agreement that we are traversing.

The committee divided on the new clause:

Ayes 19

Noes 24

Majority 5

New clause thus negatived.

Clause 6.

The Hon. A. PICCOLO: I move:

Amendment No 1 [Piccolo–1]—

Page 6, line 4 [clause 6(1)]—Delete 'a primary' and substitute 'the paramount'

The reason I move this amendment is to make the language in this bill consistent with the language in both the Assisted Reproductive Treatment Act, section 4A, and the Family Relationships Act 1974, sections 10EA and 10HB, and also to make it consistent with the Adoption Act, section 1(1)(a). The purpose is to make sure that in any court orders the welfare of the child is paramount.

The Hon. V.A. CHAPMAN: As I am the proposer of the bill, we have no objection to that amendment.

Amendment carried; clause as amended passed.

Clauses 7 to 9 passed.

Clause 10.

The CHAIR: Member for King, you have the first amendment.

Ms LUETHEN: I will move the amendments in my name in schedule 3. Firstly, I commend the Attorney-General for introducing a surrogacy bill establishing a framework for non-commercial surrogacy arrangements which intend to keep the best interests of children as the priority. Surrogacy is a complex and sensitive subject raising many ethical, legal and other issues and implications, and it is a conscience vote for our members. The Attorney-General has been generous in her time and conversations with me—

The Hon. A. PICCOLO: Point of order. This is not a second reading contribution time.

The CHAIR: She is moving her amendment and we—

The Hon. A. PICCOLO: It would be good to get to the amendment.

The CHAIR: I am sure we will get to it. As I have already indicated today, member for Light, each and every speaker is allowed up to 15 minutes. Member for King, just before you continue, we are just checking whether you can speak from there or whether you need to be in your place. We might ask that you move back to your place, member for King.

The Hon. V.A. CHAPMAN: I rise to indicate—and I do not want this to be any reflection on the member for King—that I was assuming, for the purposes of this debate, that she could move from her position to where she could seek advice. I do not want there to be any reflection on the member for King.

The CHAIR: Absolutely not, no reflection on the member for King. She came down to the front bench to deliver but it is always best to speak from your place. Member for King, you are moving amendment No. 1 to clause 10 standing in your name. I am happy for you to begin again.

Ms LUETHEN: I move:

Amendment No 1 [Luethen–3]—

Page 7, after line 15 [clause 10(3)]—Insert:

(ea) the surrogate mother must provide to each intended parent a criminal history report in respect of the surrogate mother provided by South Australia Police, or the Australian Crime Commission or an Australian Crime Commission accredited agency or broker, within the 12 months prior to entering a lawful surrogacy agreement;

I commend the Attorney-General for introducing this Surrogacy Bill establishing a framework for non-commercial surrogacy arrangements which intend to keep the best interests of a child as a priority.

Furthermore, I wish to thank the Minister for Human Services for her collaboration on this bill. Last sitting week, we also explored if it would be possible to screen participants with working with children checks. Unfortunately, I was advised that working with children checks cannot be used for surrogacy purposes without further lengthy changes to acts and agreements, causing a delay to this bill. Therefore, while it is an attractive idea to pursue with the safety of children in mind, we can choose to pursue how we could make this work in the future. Until then, we as legislators must consider what is workable.

I am keen to focus my efforts on what we can deliver today, as there are people entering into these contracts today in South Australia without any screening checks. These amendments will deliver real, practical change to the steps we are taking to safeguard children in South Australia today. I also take a special moment to thank the Hon. John Dawkins again for his tireless work on this bill over a decade. Thank you, the Hon. John Dawkins, for your persistence on this important issue and for listening to South Australians who desperately wish to have a family.

My amendments are solely designed to protect children from harm. It is my position that when we look at legislative reform we must always consider not only the benefits to the community, but also cast our minds to consider if the reform could pose any harm to our community's most vulnerable people. A question is: could those in our community who seek to harm children gain access through this process of surrogacy? Today, they can. We must consider this risk because the reality is that, far from being a rare, isolated event, child abuse is pervasive in our community.

My amendments will ensure that surrogate mothers and intended parents who have been convicted of a serious child abuse offence produce a criminal history check before they enter into the agreements for surrogacy. The type of check I am proposing in these amendments will work from day one if this legislation is passed. These two amendments in my name have the same policy behind them, so I will speak to them together.

The CHAIR: Member for King, my understanding is that you have moved amendment No. 1, so you should speak to that in the first instance, as there is another amendment to deal with in between.

Ms LUETHEN: This amendment deals with what constitutes a lawful surrogacy agreement in South Australia. Under clause 10(3) of the bill, for a surrogacy agreement to be lawful a number of criteria must be met by or in respect of the surrogate mother. These requirements already include that the surrogate mother must be over 25 years of age and not have impaired decision-making capacity, they must be a citizen or permanent resident, they must not pregnant at the time of the agreement and they must undergo counselling.

The amendment before us adds a new requirement to this list for a surrogate mother to produce a criminal history report. This report may come from the South Australian police (what we know as the police check) or from the Australian Crime Commission or from an Australian Crime Commission agency or broker. The report is required to be provided by each surrogate mother prior to entering a surrogacy agreement.

This amendment replaces others previously filed in my name in this place. I filed this amendment after careful consideration of the contributions and discussions I have had with many members in this house, including the Attorney-General, the Minister for Child Protection, the Minister for Education, the member for Davenport, the member for Kavel, the member for Waite, the member for Heysen, the member for Narungga, the member for Badcoe and the member for Ramsay.

I am moving these amendments so that we look out for individuals who have been previously convicted of serious crimes, especially looking out for those who have convictions against them for serious child abuse. These amendments take on board the important recommendation made by the South Australian Law Reform Institute under part 18—Risk assessment: recommendation 32. An excerpt from this recommendation is:

Included in the information exchanged should be any information that will enable the other parties to the lawful surrogacy agreement…to consider whether or not a party might pose a risk to the child or another party…Any check must be obtained prior to accessing any surrogacy related fertility procedure AND prior to entering into a surrogacy agreement. The parties should be advised of this requirement as part of their…legal advice obtained in the process of receiving their lawyer’s certificate.

I feel very strongly about the addition of this screening process and I have canvassed this amendment widely in my King community. People living in the King community have told me they overwhelmingly agree that we should be screening surrogates—the women doing the surrogacy—and the intended parents because they agree that every possible action must be taken to minimise the risk that people who have been found guilty of serious abuse offences against children are put off and prevented from entering this arrangement. This screening process will flag people who have been convicted of heinous crimes like child sexual abuse.

I have been so pleased that so many members on both sides of this House of Assembly in South Australia are in support of some screening taking place. This week, as I dropped off my son at school, I asked one more parent what they thought about this amendment to the surrogacy process. One mother I spoke to this week said, 'Well, it makes perfect sense.' She asked me why anyone would argue against this. I told her there was an argument that parents participating in the surrogacy agreement would feel offended, or that participating in the screening process might make them feel stressed. She very quickly replied that this process is foremost about the best interests of and safety of children and that their safety must always come first. I agree.

It is always a balance between rights and risks, and I do appreciate the argument that naturally conceiving parents are not subject to these conditions; however, today we have the opportunity to introduce a safeguard to protect children and that is why we are having this debate. I would like to read you a diary excerpt from a survivor of child sexual abuse who has given me her permission to share a page from her diary which describes how a child being sexually abused feels. I do this because this gives vulnerable children a voice in this place today:

Mar 18 1998

I just want it to end. I don't know how to make him stop. I wish we would move far far away so he can't hurt me anymore. I can't stop thinking about what happened last week. Playing over over in my head. I cry almost every night. It was awful. I just want to lock myself in a room and never come out so he can't hurt me. I feel like I am living in some scary movie that won't end. The crazy look in his eyes scares me the most. It is difficult to write what he did but it seemed like it was never going to end. He usually can only hurt me for 10-20 minutes or he might get caught. It was different last week, he had hours.

This is what I am trying to prevent and I am asking members for support to do. This amendment is aimed at preventing children from ending up in this very situation. I have been told by Repromed that they facilitate approximately five surrogacy arrangements in South Australia each year already, today, and that there is no police screening in place. They also told me they welcome the proposed new surrogacy legislation because it gives all parties more certainty. I propose that my amendments will add more certainty, too—certainty to children born in this arrangement and the broader community that we as a government are looking out for every opportunity to prevent predators from using this process as a means to access innocent and vulnerable children.

I am sure that no-one in this chamber wants a convicted Australian paedophile to become an intended parent in surrogacy arrangements. I certainly do not. I have read all that the Attorney-General has given me on this topic, I have listened to the thoughts of representatives from Repromed, and I have read letters on this topic from IVF directors and Surrogacy Australia. The argument they put forward against screening checks is that they can be offensive, unfair and humiliating, cause delays and add cost. Repromed have told me that intended parents are spending in the ballpark of $100,000 participating in the surrogacy process today, and a screening check is just over $60. I do not see this additional cost of $60-plus as overwhelming in the scheme of things.

Surrogacy Australia wrote to me and asked me to consider that they are against checking because they are working to reduce the barriers of engaging in surrogacy, and this is why they do not support police checks, as they state in their correspondence that the current process is too long and complicated. I encourage them to look for ways to streamline the processes without letting convicted child abusers into these arrangements. In South Australia, our government has been proud to introduce better protection for children through the new screening laws that came into effect from July—new stronger, nationally consistent screening laws for people wanting to work or volunteer with children.

I propose that screening should also apply to this group of intended parents and surrogates entering into these arrangements. I do so because I am aware of the reality of who abuses children. The reality is that they are not strangers and, in over 90 per cent of cases for child sexual abuse, it is people whom the children know and trust. This is well-documented, but it is very uncomfortable to think and talk about, which is often why the community might choose to deny this is the reality. So let's bust some myths.

Sexual abuse of children is most often not perpetrated by strangers: it is the people who are closest to the child. That is why this proposed amendment is so important. The most common feedback from my constituents—you could call this the pub test—is that the screening is a no-brainer. Once again, I thank people living in King, not only the many who have given me feedback on this, for also giving me the opportunity to be here and speak on this topic today. My observation during deliberation on this topic is that there has been a difference in the grassroots community constituent views on this, and this differs from organisations who participate in providing services.

I know and have met many survivors of child abuse, child sexual abuse and child rape who tell me that they support me in taking steps to do everything we can to prevent abuse of children because the adverse effects of child abuse cast a shadow over their lifetime. It has been well documented that the sexual abuse of children has a range of very serious consequences for victims, including depression, post-traumatic stress disorder, antisocial behaviour, suicidality, eating disorders, alcohol and drug misuse, postpartum depression, parenting difficulties, sexual revictimisation and even homelessness. These are just some of the manifestations of child sexual abuse amongst victims.

I acknowledge again that this topic of child sexual abuse often makes people feel uncomfortable, but brave leaders should never be silent about hard topics. We know that child sexual abusers go to enormous lengths, efforts and cost to seek out ways to access children to abuse, and they are patient. One mother told me a story of a child sexual abuse predator who groomed her children and her family over 10 years before he drugged and raped her daughters, and we have heard of convicted child sexual abusers going overseas to access children through surrogacy. They will go to enormous lengths. We have also heard of child abusers who abuse while they are on bail.

To keep children safe, our state government are already checking and screening foster carers, kinship carers, basketball coaches, school volunteers, scout leaders, children's party entertainers, religious ministers, bus drivers and many other workers and volunteers. I do not understand any reluctance to screen surrogate mothers and intended parents. We must start dispelling myths that child sexual abuse is not a widespread issue. I am glad that across both sides we are having more courageous conversations around this topic. This discussion is giving a voice to children who are being sexually abused.

Let me look at one more piece of research to show how close to home this is. The Australian Institute of Criminology has published a report of an analysis of 65 research studies across 22 countries. This report yielded high prevalence rates of child sexual abuse in Australia. This report states once again that only 10 per cent of child sexual abuse is perpetrated by strangers, and I have a couple of other of their observations.

The report noted that most parental sex offenders are male, 55 per cent are non-biological fathers and 45 per cent are biological fathers. Child victims in Australia are mostly young children of primary school age. Only 8 per cent of offences involved a single occasion. More than half of the offenders (57 per cent) committed between two and 50 different offences. When we look at those convicted, repeat incidents are more likely and it is more likely that the victim will disclose. In the majority of sexual offences admitted, 86 per cent were penetrative. Regardless of the child's age, this is child rape.

In this research, a unique offender profile is described, which I think is important to consider here. Firstly, the offender usually is in a marital or de facto relationship. Secondly, they have participated in long-term intimate relationships in the past. Thirdly, they generally maintain steady employment and they are often the financial breadwinner in the family unit.

I share this research because it helps us to understand the reality, the risks and the prevalence of child sexual abuse. We must talk about this issue if we are to act and find new ways to safeguard children where we have the opportunity to do so, and today, in this place, we have this opportunity. I know and I acknowledge that we cannot screen all parents in our community right now, but we have the opportunity to introduce a law to screen these surrogates and these intended parents.

I do apologise for making people feel uncomfortable. The sexual abuse of a child is appalling to think about; however, for us it is just a moment of feeling uncomfortable, but for victims it can be a lifetime. Members, this is our opportunity to work together, as we have been doing through this debate, on a common goal to help South Australian children grow up more safely and reach their full potential. This is an opportunity to be brave together on a really hard topic.

I thank the members on both sides who have spoken with passion about the best interests of the children in this arrangement. I acknowledge that this suggested screening process is not foolproof and will not flag all child sexual predators because we know that so many are not caught and convicted, but this is one of the reasons I am so passionate about advocating for children to have the language and knowledge to speak up through protective behaviours education so we can identify more of what is going on early on and stop children from being hurt.

I distinctly remember standing in the front yard of one King resident's garden when I asked him what was most important to him for me to focus on and he told me that we must convict more child sexual abusers. This was a very brave comment from him and I told him, 'You can have peace of mind. I will do everything I can for you to champion this cause of preventing child sexual abuse and holding abusers accountable.'

I reiterate that these amendments provide us with the opportunity to minimise the risk of a person with convictions for serious child abuse gaining access to one more child, and that matters because if, through this, we save just one more child from a life of abuse that matters, because that vulnerable child matters. That they live a life free from abuse matters more than the inconvenience of an intended parent or a surrogate having to go online to pay just over $60 to have a screening check. As I mentioned in my second reading, I also received a statement from Fighters Against Child Abuse Australia, who say that their 120,000-plus members also agree.

As I mentioned, the main argument that has been raised in this place against police checks is that it will cause stress to surrogates and intended parents. However, let's just think about the impacts on children who are victims of abuse. We have talked about that and they are lifelong. Our community and our government spend millions on social and health issues, and it is time to focus on prevention. I seek support from members on both sides to back the proposed amendments I am moving today, which will introduce mandatory screening. This can work from day one if this bill is passed.

Finally, please ask yourself the question: do I want a convicted paedophile entering a South Australian surrogacy agreement? Right here, right now, we can take one step forward and create a safer South Australia for children to grow up in and help more people become parents. As Nelson Mandela said:

We owe our children, the most vulnerable citizens in our society, a life free from violence and fear.

I refer to the Declaration of the Rights of the Child. Principle 1 states:

The child shall enjoy all the rights set forth in this Declaration.

The second principle is:

This child shall enjoy special protection, and shall be given opportunities and facilities, by law and by other means, to enable him to develop physically, mentally, morally, spiritually and socially in a healthy and normal manner and in conditions of freedom and dignity.

People living in King have given me this voice in parliament, and I intend to use it on their behalf and on behalf of children so that they have a voice in this place. People in King support me and I hope you will, too, on this important conscience vote.

Ms STINSON: Can the member for King outline the differences between a national police check and a working with children check in terms of what material is recovered through each process?

Ms LUETHEN: A police check includes criminal convictions, and the working with children check, which I have looked into quite extensively, includes convictions that have not been found. Member for Badcoe, I think you did a good job earlier in actually walking us through the elements and the strengths of the working with children check, and I agree, it is a very good check. My main concern, and the reason that I have changed by amendment, is that it does not work from day one if this legislation is passed.

If I can just add that I do agree with points that you have made in this place about the strengths of the working with children check, and I think it would be worthy to pursue whether amendments can be made in the future. If I can close by saying that the key reason I am focusing today on the police check is that currently there are surrogacies taking place in South Australia without any screening checks, and I wish to rectify that immediately.

Ms STINSON: I do thank the member for King for her generous reflections there. I have another question, and that is around the fact that this particular amendment is targeted at a surrogate mother. Some of the representations that have been made by lobby groups and others reflect on the necessity for a surrogate mother to be subject to a police check, as opposed to the intended parents.

I realise that you have another amendment that is doing exactly the same thing but for intended parents. I just wonder what your rationale is for insisting on a surrogate mother being subject to a national police check?

Ms LUETHEN: Thank you for the question. I am really taking the advice that the South Australian Law Reform Institute made in its recommendation that I referred to earlier when I was speaking in terms of all parties making the other parties aware of their history.

Mr SZAKACS: My question is for the member for King. In your contribution in support of this amendment, you noted information that had been provided both to you and publicly around both the potential and the actual pursuit of surrogacy arrangements by individuals in overseas jurisdictions in pursuit of child exploitation. I am interested in any information you have to hand about whether there have been any prosecutions brought under division 272 of the Commonwealth Criminal Code that relate to overseas sexual offences.

Ms LUETHEN: Thank you for your question. I am unfortunately not privy to that information.

Mr SZAKACS: Thank you for your answer. Can I clarify your reference to 'not privy'. Does that mean that the information is not in a position to be disclosed today, or that you are unaware or have not been provided with such information?

Ms LUETHEN: I do not have an answer to your question.

Mr SZAKACS: To clarify, do you not have an answer to my first question or my second question?

Ms LUETHEN: I do not have information to provide you about the question you have just asked.

The CHAIR: That is three questions from the member for Cheltenham. Any further questions or contributions on the amendment?

Mr TEAGUE: Again, I rise very briefly to make specific reference to the South Australian Law Reform Institute's significant contribution to this topic and this debate. It is a 350-page report dated October last year. I want to make specific reference to its recommendation No. 32. Before I do that, I want to acknowledge the sincerity and thoughtfulness of the member for King in bringing the amendment. I have listened very carefully to her remarks and particularly her motivation in respect of doing all that might possibly be done to prevent a risk of harm to children. I very much respect that.

I want to highlight, with direct reference to recommendation 32, that the South Australian Law Reform Institute made a recommendation in terms of the desirability of:

…the full and frank exchange of information between the parties to a lawful surrogacy agreement (that is the surrogate mother, her partner (if any) and the intending parents) and with the Accredited Independent Counsellor(s)—

who may be engaged, and that that ought to happen—

prior to a surrogacy agreement being entered into so that all parties can properly assess whether or not to enter such an agreement and/or the agreement is appropriate and will be in the best interests of the child.

It goes on to say:

As part of this process, each party should (if possible) obtain and provide to the other parties and the Accredited Independent Counsellor(s) either a Working with Children Check (though SALRI notes there may well be difficulties at this stage with such a requirement) or a National Criminal History Check.

Against that background, I highlight the role of the counsellor in the process at the core of the recommendation of SALRI. In that respect, I make reference to clause 10 of the bill, the central role of the requirement for counselling and, as the result of that counselling, the provision of the counsellor's certificate as a precondition to entry into a lawful surrogacy agreement.

That is so much as to make clear that what we are talking about in terms of this regime is the entry into what would be an enforceable surrogacy contract. In that respect, it is unlike the Victorian regime, which provides presently for a process of checks that might have the result of leading to a presumption against treatment if any risks were identified in the process of checking. Here we are talking about a process by which a lawful agreement might be entered into, and the amendment that is proposed would have a place as one of those preconditions to the enforceability of the contract.

Recommendation 32, in my view, ought necessarily be read very much in that context. It is with those aspects in mind that in my view the counselling process and in due course the issuing or not of the counsellor's certificate—and I mention briefly the requirement for a lawyer's certificate as well—have the important role to play in terms of determining whether or not a prospective surrogate mother and prospective intending parents are appropriate, ready and able to enter into a lawful agreement.

It is for that reason that I have a difficulty with the proposed amendment. I wish to make those observations, while otherwise really agreeing and very much amplifying all the concerns that have been expressed by the member for King in the context of the need for us to do all we can to protect children relevantly as we legislate in this state.

Mr MURRAY: I rise to make a series of brief observations insofar as this bill generally and more particularly this amendment are concerned. I am of the very strongly held view that the maximum protection that can be afforded by us to children in our care, however that manifests itself, is obviously paramount. In my experience, the maximum way to achieve that is the utilisation of working with children checks.

At the risk of going over old ground, I have very personal experience with regard to what is possible for people who are on bail or who have been unsuccessfully prosecuted for offences which ordinarily or would otherwise render them prohibited from the point of view of working with children. In the event that a regime simply focuses solely on the police check, there will be people who are, as I said, on bail or who have been unsuccessfully but repeatedly prosecuted for offences who will derive a police check.

Having said that, I am mindful, on the advice of the Attorney-General, that it is not possible for a working with children check to be applicable in this situation—more is the pity. I have no basis, no training and no formal advice to counteract that, and as a result I am forced to adopt the view that the working with children checks cannot apply in this situation. That said, it is my view that, in the event this bill is to pass, a police check is nonetheless better than nothing, and it is on that basis that I will be supporting this amendment.

But I reiterate that the best way forward, in my view, is to ensure that the surrogacy arrangements put in place under the auspices of this bill should be done with the processes put in place by working with children. Given that they cannot occur, my view, from my own perspective, is that the bill should not pass in its current form without that sort of provision. But, mindful of the fact that it is quite possible that it will do so, I intend to support, as the next best thing, this particular amendment.

Ms STINSON: I have one more question for the member for King. Do you accept that there are people who are listed in child protection records, including CARL records, as being unsuitable to be carers who would actually pass a police check—essentially, that there are people who would not get a working with children check but would pass a police check?

Ms LUETHEN: I do not absolutely know the technical answer to that, but what I can say is that at no point—and hopefully I have made it clear—am I saying that a working with children check is not a good check. It is, but the advice I have received is that it will not work, changes have to be made and it is something that we should pursue, perhaps after this bill is passed. What I am absolutely focused on is making sure that, if this bill is passed, we screen out people who have been convicted, from the moment this bill is passed. That is what I am focusing on: that we introduce a safeguard that is not in place today.

The Hon. A. KOUTSANTONIS: First of all, I want to say that I applaud the intent of the member for King and the member for Badcoe. My remarks are in no way a personal reflection on them, but that answer simply does not satisfy me. The idea that the member for King can tell this house, after we pass a measure that she has just told us cannot confirm that people who may be subject to accusations or evidence that would not qualify them for a working with children pass or qualification would not be covered with a police check, and that we can somehow fix that later—no, we cannot. Once it is law, it is law.

The Hon. V.A. Chapman interjecting:

The Hon. A. KOUTSANTONIS: I notice the Attorney-General is scoffing. We cannot change the intent of this house once it is out of our hands, so I would caution members that, while the intent of the member for King is noble, perhaps the devil is in the detail. While we do not have a hybrid process here—and I make no reflection on that—it seems to me that, from the answer the member for King just gave the house, it makes it almost impossible to support her amendment. It is not a fix: it is simply a hope, and strategies built on hope fail.

Our job here is not to legislate on the basis of hope. Our job is to legislate on the basis of facts, and the facts are—as confirmed by the member for King and not disputed by anyone else, and articulated exceptionally well by the member for Badcoe and the member for Waite—that there are people who will qualify for a surrogacy under this bill who will not qualify for a working with children clearance. I think that completely changes the intent of what the member for King and the member for Badcoe are attempting to do. This parliament is voting for an amendment to the bill in the hope that it gets fixed somewhere else. Where is this somewhere else? Where?

The Hon. V.A. CHAPMAN: Point of order, Mr Chair: I have listened to this in the hope that the member was going to express a view of his disappointment about a vote that we have already taken. The fact is that there is an amendment in relation to police checks that is before the house, and while the member continues to make this sort of comment, he is reflecting on a vote of parliament and presenting it as a suggestion that the member for King's amendment is in some way deficient, relative to a vote that has already been taken. So I would ask that the Chair bring the member back to the substance of the matter.

The CHAIR: Thank you, Attorney. The member for West Torrens is well aware of the standing orders in this place, I am sure. He is continuing his contribution. Just be mindful of how you go about that, member for West Torrens. You have the call.

The Hon. A. KOUTSANTONIS: I found that grossly offensive, but that is the normal course for the Attorney-General. Again, I say that I while I accept the noblest of intentions of the member for King and the member for Badcoe, I am concerned by the answers given to this parliament about the outcome of the amendment, if successful.

As we have heard from the member for Waite, the member for King now, and the member for Badcoe, there is this contradiction in what we are contemplating, which is that a police clearance will not cover people who would not receive a clearance for working with children under the definitions ascribed earlier. I make no reference to the committee's vote on that matter in any way, Mr Chair of Committees.

All I am saying is that the member for King herself has articulated, I think, something that is quite valid: that she is concerned that her amendment does not go as far as she would like, that the member for Badcoe has legitimate concerns and she saw some value in the member for Badcoe's amendment—

The Hon. V.A. Chapman: You voted against it.

The Hon. A. KOUTSANTONIS: Who is reflecting on the vote of the house now?

Members interjecting:

The CHAIR: Order! Everybody has been very respectful today and will continue to be.

The Hon. A. KOUTSANTONIS: Sorry, sir, that is incorrect—everyone bar one.

The CHAIR: I am encouraging—

The Hon. A. KOUTSANTONIS: I have not made a single interjection in this debate.

The CHAIR: Order! I am encouraging everybody to continue the debate in a respectful manner. Members for West Torrens, you have the call.

The Hon. A. KOUTSANTONIS: Thank you, sir. I do not know how I have offended anyone with my remarks thus far. Again, I am concerned about what the member for King has informed the house. I am informed by my friend the member for Waite, without doing him any political harm by calling him my friend—

Members interjecting:

The Hon. A. KOUTSANTONIS: Davenport? Did I say Waite? My deepest apologies. That is a slur on the member for Davenport.

The CHAIR: Could Hansard note that correction, please: it is the member for Davenport.

The Hon. A. KOUTSANTONIS: Yes, please, Hansard. There will be sackcloth and ashes afterwards. The problem that the member for King has articulated and that the member for Badcoe has exposed, together through their respectful asking and answering questions of each other, has exposed to the committee a problem, a deficiency. That deficiency will not be remedied by assurances by the executive, because this parliament is supreme, and hope will not suffice.

Unless a member can give us an ironclad guarantee, I fear we are heading down a path that all of us will regret—other than a few who believe that we are legislating some safeguards, even though the proponents of those legislative safeguards have told the committee that they are not sufficient and someone will fix it. Well, we 47 are the ones who were meant to fix it, and if we are not proposing to fix it now it ain't gonna get fixed. Who are we hoping does this for us?

I would urge members to consider that, and that the Attorney-General will perhaps inform the house what this strategy built on hope is that will fix this remedy that the member for King has nobly articulated to the parliament, and the member for Badcoe has exposed, and the member for Davenport has so cleverly articulated to the house: that we are left with this problem where we all want to do the right thing, but we have no legislative ability before us to do it.

Mr TEAGUE: I will briefly respond to the member for West Torrens. I am with the member for West Torrens at one level in that he seeks an ironclad guarantee. He seeks a counsel of perfection on this topic. He is essentially coming clean on, really, his opposition to this entire landscape. I would ask those members who have been active in the debate to just reflect on clause 28 of the bill—and no-one is seeking to amend clause 28.

There is a limitation of liability on the Crown. The Crown does not accept liability for the outcome of lawful surrogacy agreements. The concept of a lawful surrogacy agreement has been perfectly acceptable to the member for Badcoe and it has been perfectly acceptable to the member for King in moving amendments.

As we proceed through this debate, which is entirely about creating an enforceable arrangement, we must grapple with the fact that there is no guarantee. The Crown does not accept liability. Frankly, to address the member for West Torrens' point directly, life does not have the sorts of guarantees that the member for West Torrens is seeking to impose upon would-be participants in a surrogacy arrangement.

I make no reflection on the member for West Torrens, but I say about that argument that it is a barren argument. It is an empty argument. It is an argument that vacates the entire space in which this debate occurs and it says, 'I'm going to wash my hands of it because, unless you can give me a guarantee that life does not provide,' with respect, 'I will not participate.' I think it is about as cynical an abrogation of responsibility as one can come across.

To make that argument, one needs first to traverse grounds that include the most cynical abrogation of one's responsibility as a legislator in this place. I just wish to make that very clear, because there has been—

The Hon. A. Koutsantonis: These aren't personal reflections?

The CHAIR: Member for West Torrens, you are speaking to me. Have you taken offence at something the member—

The Hon. A. Koutsantonis: Yes, I have. Why haven't you?

The CHAIR: It's not for me to take offence.

The Hon. A. Koutsantonis: Really? You are just the Chair; you just work here. Of course it's your job. You just lectured us five minutes ago that it is not for debate and then you sat through that, watching it.

The CHAIR: Thank you, member for West Torrens. The member for Heysen.

Mr TEAGUE: I emphasise that, if any honourable member on any debate in this place abrogates their responsibility to participate in a responsible way, they have failed in their duty as a legislator. The core point here that ought to be central to this entire debate is that we are participating in a process that would provide for an enforceable arrangement between a surrogate and intending parents who require that assisted reproductive treatment.

It does not come with ironclad guarantees; it comes with the hope of the participation in that great, big, uncertain, lacking-in-guarantee adventure that life is all about. In this place, in the debates in this place and in the legislation that we make, we ought to have our eye very clearly on that prize at all times. It is with those remarks that I commend this aspect of the debate and encourage members' participation in it.

The CHAIR: For the information of the house, standing order 125—Offensive words against member:

A Member may not use offensive or unbecoming words in reference to another Member. Subject to Standing Order 137, if the Member referred to takes objection to what he/she considers to be offensive or unbecoming words, the Speaker requests the Member uttering the words to withdraw them.

Member for West Torrens, ideally you would have stood in your place and asked that he withdraw. I suspect that the member for Heysen was talking about the points you had made rather than you as a member.

The Hon. A. Koutsantonis: I am sure you would say that, sir.

The CHAIR: Member for West Torrens, we will let the record speak for itself. I am sure it will become clear when we review Hansard.

Ms COOK: Firstly, I want to make a couple of remarks and offer my absolute support and thanks to people who are prepared to involve themselves in the process of giving in surrogacy. What a huge commitment and sacrifice; I know people who have personally, and I know the journey they go through. It really is such a selfless thing. I know many of us in this place can put ourselves in that position as well of being so desperate and wanting to being a parent. In the process, I take with great responsibility the knowledge that we need to make sure that we get the legislation right.

I have to say the debate sometimes has confused me in terms of where people sit within the parliament. It is not about whether they support surrogacy. I feel quite comfortable knowing where people are with that. I think it is about at what level they believe that the check needs to happen. Given that we now have the amendments at a level of a national police certificate, I want to ask the member for King, the mover of the amendment: what level of clearance does she understand to be acceptable for parents and carers who are going to be in that supportive role of caring for children, be it a foster-parent, an adopted parent, a carer, in their home? How is that being applied to the test of you putting up a national police certificate?

Ms LUETHEN: To clarify, is your question about people participating in surrogacy agreements or other agreements?

Ms COOK: To clarify, there are police certificates and there are working with children checks, and they are applied at a different level. I am asking you: at what level are those certificates or clearances applied for all different types of parenting and how is that test being applied for you, when you say a national police certificate is now the test that should be applied to a surrogate and a surrogate parent?

Ms LUETHEN: I am not aware of the others in those situations. What my amendment reflects, both the first amendment and the second amendment that we will get to, is that I am asking in this particular amendment for the surrogate mother to provide each intended parent:

…a criminal history report in respect of the [surrogate mother] provided by South Australia Police, or the Australian Crime Commission or an Australian Crime Commission accredited agency or broker, within the 12 months prior to entering a lawful surrogacy agreement…

Ms COOK: So if a foster-parent is required to undertake a working with children check, which has a number of higher levels that are required, why is it that a surrogate parent or someone involved in surrogacy should not be required to undertake the same test?

Ms LUETHEN: I thank the member for her question. We are not here today to talk about the types of parents. I am here to talk about what applies to this Surrogacy Bill and the amendments that I have moved. I am absolutely focused on delivering in this legislation our solution about what is achievable, workable and practical if this legislation is passed today.

Ms COOK: What is the actual barrier, from your point of view, to apply a working with children check? What changes have to happen for that? Why can we not do that?

Ms LUETHEN: I think we have talked to this point during the debate numerous times, and you could perhaps reflect on some of the comments that the Attorney-General made prior to this point of your asking the question today. I have been advised that the working with children check is not workable today, and we have had discussion about referring to COAG agreements that are in place and an act that would need to be changed, and you can refer to earlier comments.

The CHAIR: Member for Hurtle Vale, I will allow one more.

Ms COOK: In your heart, do you believe that that is absolutely the right thing to do? You have not been persuaded. You believe this yourself. This is your belief.

Ms LUETHEN: Thank you for the question again. The advice that I have received is that today in South Australia Repromed has said at least five families are going through the surrogacy process. In South Australia today, there is no screening in place. I have been advised that the working with children check requires significant changes to legislation and COAG agreements. So, while it is a good idea, it will not work from day one, and my intention is to put checks in place from day one that will stop and flag convicted paedophiles from entering this process.

Ms COOK: Does Repromed support your amendment, though? Do they support that amendment?

The CHAIR: Member for Hurtle Vale, you have had your opportunity.

The Hon. A. KOUTSANTONIS: My question is to the member for King. Does Repromed, who was quoted by the member, support the amendment that she is proposing now?

Ms LUETHEN: I did not quite hear your question. Can you repeat it?

The Hon. A. KOUTSANTONIS: Does Repromed, the fertility agency you quoted, support the amendments that you are moving now?

Ms LUETHEN: I have not asked them specifically if they support my amendments. I have had a general conversation with them.

The Hon. A. KOUTSANTONIS: Have Repromed corresponded with the member and informed them that they do not support criminal history checks as advocated by the member for King?

Ms LUETHEN: I would have to check my emails to see if I have correspondence, but I did have a meeting with them earlier on in the week to hear about their experience in this field.

Mr BOYER: I have a question about spent convictions. Can the member for King tell us what spent convictions does the criminal history check take into account when compared with the spent convictions that the working with children check would take into account?

Ms LUETHEN: Thank you for the question. I am not aware of the detail of that, but I could bring back that information.

Mr PEDERICK: I want to reflect on police checks and when they have been found necessary. Obviously, we have criminal history checks for working with children as well. It is sad that the world has come to a place where we have to contemplate both in a whole range of fields. It is very sad, but it is a fact of life and I believe that we must. In fact, as I indicated in my speech on surrogacy to this place in another sitting week, I certainly support surrogacy. I may not have come to that position unless I had been on the Social Development Committee back in 2006, noting the cost of what people were doing to achieve parenthood and also the emotional turmoil they went through.

I must say that when looking at the amendments around children's safety—and children's safety is paramount—initially I was of the understanding that, with the counselling processes that people go through and that sort of thing, there are enough procedures in place to keep children safe. In regard to the amendments moved by the member for King, I have come to a position where I will support those amendments. I say that because I understand the difficulties around the child safety check and also because having a police check is quite a common requirement, especially to do with hosting billeted schoolchildren.

Years ago—and it is quite a few years since I went to school, as people will notice—we used to go to Adelaide, for instance, for various sporting events and we would just be billeted out, no problems, no questions asked. The same applied when we hosted people at our area school at Coomandook: they would just come and stay—simpler times—but the trouble is that there are some disgusting people out there and we need to protect our children.

Only a few years ago, my boys' school wanted to billet some school students from interstate. I said, 'Well, what's the requirement?', and it was interesting that, even though I only saw those students once because it was a sitting week, my wife, Sally, and I had to make sure we had a current police check in place. We made sure we had it in place. I do not think it is onerous. Yes, it is another level as far as children's safety is concerned, but I certainly think that something is better than nothing. I say that as someone who supports the bill.

I understand that some people probably will not support the bill however it goes through here, but that is up to their conscience and that is fine. Initially, I thought that it was a lot of bureaucracy, but at the end of the day, when I reflected on what needs to be in place, it is not that difficult. There are so many different groups—whether volunteer organisations, ministers of religion or other people who work with children who have to have either a police check or a working with children check—that I think having the police check is probably somewhere we can go in this.

I note that someone has quoted that people can spend up to $100,000 to have a surrogate, so it is not too big an impost and it puts in that level of security to do our utmost to make sure that children are safe. I know from conversations I have had with various members that people say, 'Oh, but we have to do our utmost'. We can do our utmost, but whatever we do—and we have seen it in various cases over history—whether there are police checks or child safety checks, evil people find a way. I would like to think that we can guarantee to stop that, but people with evil intent find a way. In closing, I reiterate that I support both amendments moved by the member for King in this area.

The Hon. V.A. CHAPMAN: I thank the member for her amendment. One of the questions raised in consideration of this amendment is the effect of spent convictions. I refer members to the Spent Convictions Act 2009 and perhaps remind members that this relates to the capacity to have your criminal history cleansed, sanitised, but that it can only be for an 'eligible adult offence', where a term of imprisonment was not imposed, or a sentence of imprisonment was imposed but the sentence was 12 months or less. An 'eligible juvenile offence' is essentially where there has been a sentence of less than 24 months.

An 'eligible sex offence' means a sex offence, being either an eligible adult offence or an eligible juvenile offence, for which a sentence of imprisonment is not imposed, or a designated sex-related offence. In short, I think the member and others listening to the debate could be reassured that, if you have a sexual offence history, it is not eligible to be spent. In other words, whilst someone might have spent convictions, they are not able to erase their prior sexual offences. I hope that helps those considering this matter.

Mr BOYER: I have a question on that theme in terms of acquittals. Does the criminal history check countenance acquittals? If not, does the working with children check instead cover any acquittals?

The Hon. V.A. CHAPMAN: If it assists the committee, I am happy to indicate that we are talking about a police record of convictions. An acquittal obviously would not result in a conviction or quashed convictions, and for obvious reasons. We are talking about people who have gone through the legal process and are convicted. The police check will have to disclose those for the purposes of a criminal history.

Mr BOYER: Thank you, Attorney, but does the working with children check take into account or assess any acquittals? I understand your answer is that the National Criminal History Check does not because they are not convictions because, by their nature, they are acquittals, but what about the working with children check?

The Hon. V.A. CHAPMAN: My understanding in relation to the working with children check is that if there has been an investigation, then that is in the capacity of being provided by the police intelligence to the relevant unit. That is a matter for police compilation and they may also gather that information from child protection agencies. That is my understanding.

Ayes 31

Noes 12

Majority 19

Ms STINSON: I move:

Amendment No 2 [Stinson–1]—

Page 7, after line 27 [clause 10(4)]—Insert:

(da) each intended parent must not be a prohibited person under the Child Safety (Prohibited Persons) Act 2016;

I am to happy outline to the house the purpose of the amendment, and then I am happy to take any questions on it. This amendment is not contingent on the earlier amendment I put forward to proposed clause 5A; it stands alone quite separately and is not dependent on the other.

This amendment seeks that each intended parent must not be a prohibited person under the Child Safety (Prohibited Persons) Act 2016. Essentially, that means that a person who has been found guilty of a serious offence, a serious sexual offence, a sexual offence against a child, cannot be party to a surrogacy agreement. I think that is perfectly sensible. I think that reflects what many in this house have said in their public contributions so far, and certainly even the intent that I am sure the member for King is also trying to achieve, which is that someone at least with a conviction is not permitted to be a party to a surrogacy agreement.

I am happy to furnish members with the list of offences that are covered for a person to be declared as a prohibited person. It does go to some pages, but I am happy to provide that or even read it in if anyone particularly wants me to do that. Considering that the Child Safety (Prohibited Persons) Act went through this place not too long ago, I imagine that most members would be quite familiar with the kinds of offences that are covered. They are serious offences, including things like murder and rape, as well as sexual offences against adults and sexual offences against children.

To be honest, considering that our legislation at both state and federal levels talks about the interests of the child being paramount, I cannot see how this amendment would not be supported. This amendment simply provides that someone who has been convicted of a serious offence cannot enter into a surrogacy agreement. I think that is a perfectly reasonable point of view that reflects the views of this house, but of course I am more than willing to answer any questions about the operation of this and how it would ensure a greater level of safety and security for children born through surrogacy agreements, as intended by this bill.

The Hon. V.A. CHAPMAN: I thank the member for bringing the amendment to the attention of the house. I would like to grant some reassurance that of course persons who are convicted of the long list of heinous crimes that have been indicated by the member for Badcoe would, if they have a conviction, be disclosable pursuant to the criminal check that we have just passed by way of amendment to the house. In fact, that would be a disclosable obligation.

As a result of that, it would not cover the notice, I think for all the reasons we have discussed in relation to applicability of the working with children check deficiencies, if I can generously describe them as that. I reassure the house that the amendment from the member for King that was just passed would list the convictions in relation to those heinous crimes.

Ms STINSON: To respond to that, there is a distinction in relation to the amendment that was just passed, which was the member for King's amendment, and that is that the national police check would need to be disclosed to parties. In relation to the amendment just passed, it is for the surrogate mother to be the subject of a check and to expose that. However, the effect of the amendment that I am putting forward is that each intended parent must not be a prohibited person under the Child Safety (Prohibited Persons) Act of 2016.

To use layman's terms, that would amount to a ban on a person who had a serious conviction, as defined by the Child Safety (Prohibited Persons) Act, being able to be a party to the surrogacy agreement. It is not simply a matter of having to disclose that a criminal history of any kind has been recorded. It is a matter of a great deal more certainty. Under this amendment, what I am proposing is that, if a person has been convicted of a serious offence and has been declared as a prohibited person under the aforementioned act, they would not be able to be party to a surrogacy agreement.

It is not simply that they would have to hand over a police check that showed a list of possible offences that may range in seriousness and that that may need to be discussed or disclosed to parties in the agreement. This is a lot more absolute than that. It is saying that, if you have a serious offence—I am not talking about driving offences or anything like that—such as murder, rape, sexual offences against adults or sexual offences against children, a person who has been declared a prohibited person because they have that record is not able to be a party and is effectively banned from being a party to a surrogacy agreement. That is what I am putting to the house.

While it is entirely consistent with the amendment that has been accepted, which was put forward just now by the member for King, it does actually mean that people who are guilty of the most serious offences in our community will not be able to be a party to a surrogacy agreement. I cannot see why a surrogate mother, or an intended parent for that matter, would want to be part of a surrogacy agreement with someone once they had knowledge that that person was a prohibited person.

The prohibited person declaration is important. At the moment, it is mainly used in the working with children check system. It is not just a flag to potential employers or volunteer agencies that this person failed to obtain a working with children check; it is much more serious than that. It is that their case has been looked at, their offences and convictions have been looked at, and a declaration has been positively made that this person should not be around children—not for volunteering purposes, not for work purposes and, I would contend, not for surrogacy purposes either.

If we apply this standard when we are talking about people who are volunteering for not-for-profit organisations and dealing with children, and if we apply this standard in the workplace when we are talking about workers who have contact with children, then why would we not apply this standard—the prohibited persons test—to someone who seeks to be party to a surrogacy agreement?

I really struggle to see how anyone could justify why a convicted murderer, a convicted rapist, a convicted adult sex offender or a convicted offender who has abused children should be considered for a surrogacy agreement. I cannot imagine that parties would want to be part of such an agreement, and I cannot imagine that our community would say that it is acceptable for convicted serious violent offenders or serious sexual offenders to be able to enter a surrogacy agreement.

The committee divided on the amendment:

Ayes 21

Noes 22

Majority 1

Amendment thus negatived.

The CHAIR: The member for King has her second amendment on schedule 3 and she has the call.

Ms LUETHEN: I move:

Amendment No 2 [Luethen–3]—

Page 8, after line 4 [clause 10(4)]—Insert:

(fa) each intended parent must provide to the surrogate mother a criminal history report in respect of the intended parent provided by South Australia Police, or the Australian Crime Commission or an Australian Crime Commission accredited agency or broker, within the 12 months prior to entering a lawful surrogacy agreement;

My amendment is to screen intended parents and offer a practical, valid, workable criminal history screening from day one if this legislation is passed. It will highlight risks to children from day one to all parties involved in surrogacy, as per the South Australian Law Reform Institute recommendations.

Mr SZAKACS: The member just referred to this clause operating to exclude persons who are convicted of an offence which poses an unacceptable risk to children. Is the member putting to the house that this clause, and every offence that would be disclosed thereunder, would pose an unacceptable risk to children?

Ms LUETHEN: Can you please repeat your question?

Mr SZAKACS: The member in her contribution noted that this clause would prevent or shine a light on offences to be disclosed which have been committed by prospective parents, which would pose an unacceptable risk to children. Does the member put to this house that all offences, which will be disclosed under this clause, in her opinion, are offences committed by a person who would pose an unacceptable risk to children?

Ms LUETHEN: I thank the member for his question. I think you are asking: will all the offences that might be disclosed as part of the criminal history check be offences that could pose risks to children? I would say that, based on my experience of what could be offences, probably not, though what it will highlight is the risks that could pose harm to children and make the parties who are participating in this surrogacy agreement aware of what those offences are so that they are fully aware of the history of each of the parties, as recommended by the SA Law Reform Institute.

Mr SZAKACS: In such an important matter as this committee drawing conclusions about offences which would or would not pose unacceptable risks to children, why has the member erred on the side of a catch-all criminal history check disclosure rather than prescribing certain offences that would pose unacceptable risks to children?

Ms LUETHEN: Thank you for your question again. I will refer you to previous answers that we have given. I have sought advice on what is a workable way to highlight the criminal history of people participating and this is a workable practical solution based upon the advice I have received.

Mr SZAKACS: Chair, on a point of clarification, I think the member has misheard my question. This question is in relation to this clause, which deals with a different cohort of individuals from the member's previous amendments, so my question is specifically in relation to this cohort of individuals. Why has the member erred on a full disclosure of a criminal history check? Her own response to my previous question was that there were certain offences that would not pose unacceptable risks to children. In fact, there would be certain offences which would be deemed to be trifling. Why has the member not erred to prescribe the offences that would be deemed to be unacceptable in terms of this cohort of individuals?

Ms LUETHEN: I have recommended the criminal history check, as recommended by the South Australian Law Reform Institute, because it is available today. As a parent of two children, if I were participating in this sort of process, whether I was the surrogate or I was going to be an intended parent for someone else, I would want to know what the history had been of the intended parent who was party to this before I went into an arrangement like this. So it is to make all parties aware of any potential risks to bearing and raising and looking after children in the future. I think I have answered it here in terms of this amendment. It is about the intended parents being fit people who do not pose a harm to the children coming in to this agreement.

Mr SZAKACS: The member, then, in her response made a point that a prospective surrogate has every right to feel satisfied that prospective parents are fit and, I think, to paraphrase, proper to be parents. Is the member satisfied that a criminal history check is the highest possible standard available to prospective parents or surrogates to be satisfied of such content?

Ms LUETHEN: I am satisfied, based on all the advice I have received, that it is a practical, valid, workable check that can be introduced today, if this surrogacy legislation is passed, from day one, to highlight any threats to the child or posed risks.

Mr PICTON: In my reading of this amendment from the member for King, there are two distinct differences between this amendment and the alternative amendment proposed to (fa) by the member for Badcoe. One, as we have discussed previously, is in terms of police check versus working with children check. The other difference is in relation to where the information is provided.

In your amendment, it is being provided just to the intending surrogate mother. In the member for Badcoe's amendment, which deals with the working with children check, that would be provided to both the surrogate mother and to the counsellor involved. I am just wondering if the member for King can outline why she has decided that the counsellor should not also be provided with the criminal history check information?

Ms LUETHEN: I did ask questions about this previously in preparing my amendments, and my understanding is that the counsellor would not be able to enforce anything upon the participants in the surrogacy agreement. So I am really following the recommendations of the Law Reform Institute in terms of the parents and the surrogate being informed.

Mr PICTON: Can I ask the member for King if she has thought through whether there could there be a situation where the information is provided to the surrogate mother? That information could have some serious offences on that disclosure but from what I can see this amendment does not actually stop that arrangement from going ahead even if there was a serious disclosure of a conviction for, say, paedophilia on that disclosure. There could still be the arrangement proceeding despite that criminal history check with that serious offence being provided to the mother.

Ms LUETHEN: It is my understanding—and I talked about this earlier today—that this is not a foolproof screening process. I think perhaps the member for Heysen also spoke about this before. This is not foolproof, but what I am hoping it will do is make all parties aware of any threat or risk that is posed and make parties informed, as per the recommendations that we have received, and hopefully also deter parties who might pose a risk to children from becoming involved in this process.

Mr PICTON: My last question to the member for King is: has she considered whether there are any other means by which that could be strengthened? Based on her comments in her previous answer—she is saying this is not a foolproof screening in that there still could be people who have serious offences who could get through this—did she consider whether there would be ways of tightening that so that it would not just be up to the parties themselves to determine, in the case of a serious offence, whether that proceed?

Obviously, this has been a debate in terms of making clear in some of the legislation and some of the amendments that certain people and certain offences would be specifically excluded from the act whether or not the parties agreed, because of the nature of those offences by the people. Has the member for King considered that, or would she consider any further amendments that would tighten that up?

Ms LUETHEN: I have considered it, and it is up to the house if it wishes to propose further amendments.

Sitting extended beyond 18:00 on motion of Hon. J.A.W. Gardner.

Amendment carried.

Mr PATTERSON: I would like to ask questions, now that the amendment has been carried, in regard to clause 10(2)(b), which provides:

a person, or both persons…on whom parentage of the child or children born as a result of a lawful surrogacy agreement will be conferred in accordance with this act.

Where there are both persons, it is silent in terms of how long they have been in a relationship. Is there any guidance in relation to the length of a relationship?

The Hon. V.A. CHAPMAN: The answer to that is no. I think the member is probably getting to whether, for example, they have been married for a certain period of time or have cohabited for a certain period of time, and the answer to that is no.

The Hon. A. KOUTSANTONIS: If a surrogate, on giving birth to the surrogate child of donor parents, decides to keep that child, what is the process under the act for the biological parents gaining custody?

The Hon. V.A. CHAPMAN: The member raises a question I have been asked a number of times, and that is: how do we deal with it if the surrogate mother—for whatever reason—says, upon the birth of the child, 'I want to keep the child'? The child will remain with the mother. The child can be the subject of Family Court proceedings in respect of any determination, as they have jurisdiction to do in any other custodial dispute. Irrespective of the marital status of a parent or parents of children, or donor parents, the Family Court is the jurisdiction.

The Hon. A. KOUTSANTONIS: Not being a lawyer, I am at a disadvantage here. The surrogate parents may have a fertilised embryo, which is then transferred to the surrogate. The surrogate then carries that child through to birth. Birth is given and the child is born. The only connection to the child is the surrogate mother and this act. The biological parents of the child would then have to make orders in the Federal Court or the Family Court, another jurisdiction, to attempt to get access to the child.

What grounds would that family have to gain access to a child who is biologically theirs, even though the surrogate would claim, under this act, that she has a greater right to that child than the parents do? Under what circumstances, other than just saying that you can go to a court, could we be assured that that process would give some comfort to the biological parents?

The Hon. V.A. CHAPMAN: To be clear, we have a surrogate mother who must be over the age of 25 years. We have potentially a donor parent of the sperm, a separate donor parent of the ovum and we have the receiving parents. All of these are potential parties. There is a recent Family Court of Australia case that suggested, on an overseas transfer of a child, that even the father of the donor sperm does not have his rights extinguished. So each of them can make an application for residency, custody or decision-making in some way in relation to the child of 'team baby', for lack of a better word, which has just been referred to in the report. That is the jurisdiction. The jurisdiction is bound by its law, the Family Law Act, and that case would have to be determined on the paramount interests of the child.

The Hon. A. KOUTSANTONIS: I do not think that answers my question, because my reading of the act reinforces my view that the surrogate has primacy in this area. Unless the biological parents, to keep that child, can prove some form of misconduct or inappropriateness by the surrogate mother, I am not sure that they would have the rights that we might all expect to have in relation to our biological children, and that concerns me.

I am not a woman, but there is obviously a very emotional attachment that mother and baby form over a period. I think men see that through their relationships with their partners. I think women are better able than I to understand, contemplate and express this. I think it would be perfectly natural for a surrogate mother to perhaps want to keep that child. The only connection that that mother would have would be, to use the term the Attorney used, to carry it—to be the surrogate. But, biologically, that child has no relationship to the surrogate, and the surrogate parents would then have to make an application to a court to get their child, because this legislation gives no certainty to the outcome and gives primacy to the surrogate about whether or not they wish to keep that child.

I do not know how this works in practice, whether the child is taken away at birth or whether there is a period of transition. I am not sure if it is a negotiated contract or if there is a negotiated period, but I imagine it would be a very traumatic experience, and also a joyous one of the same time. I do not know how this is being contemplated. Again, without wishing to offend the laissez faire legislators in the building, I do want some assurances about what people's rights are here, because I can imagine the heartache of knowing that someone else has your child and you have to wait for a process.

This is not because of a marriage breakdown or a relationship breakdown: this is because the surrogate is being given authority through this piece of legislation to have primacy and custody pending a Family Court deliberation. I assume that within that Family Court deliberation you will have to make some argument about the fitness or otherwise of the surrogate mother to keep that child.

Given the act that we are contemplating now makes the surrogate the prime concern, I do not know what the outcome in here is. That might be for good reasons. Maybe the drafters of the bill feel it is best decided by a court if there is a dispute. That is a perfectly legitimate point of view to have; it is not my point of view. My point of view is, if we are going to enter into these types of arrangements, that there need to be very clear understandings of what happens when something goes wrong, that is, a breakdown in the relationship between the surrogate and the biological parents, which I could contemplate quite naturally and normally happening.

I would like the Attorney to explain to and satisfy the committee that the biological parents have not just a standing to make an application but this does not then degenerate into some detailed, expensive court process which then leaves a child without its parents and a surrogate dissatisfied by losing a child with whom there is a normal and natural bond. Yes, sure, this is all difficult to try to make perfect, as the member for Heysen claims in the laissez faire view of contracts where there is no government regulation anywhere. However, my concern is what protections and safeguards are we putting in place, other than a standing to make an application to a court, to get access to your baby?

The Hon. V.A. CHAPMAN: There is a lot in that but, in short, can I confirm that this proposed legislation, which is to set out the rules that are to apply if one wants to access a lawful surrogacy agreement that gives some entitlements to declarations of interest via a court process, does not override the jurisdiction of the Family Court to determine a dispute in relation to the placement or arrangements of the residence of a child. That remains, and the member might be quite correct in his assessment if a child is born and the surrogate decides to keep it. She may have actually donated the ovum for that child or there may be both donors and it may have nothing to do with the receiving parents. These circumstances will be different and they will be matters that will need to be determined by the Family Court if that dispute remains.

I cannot answer for every variation of what would apply in that regard, but they are matters of jurisdiction that would remain, and that is the case now where people can enter into arrangements to have a child, hand it over or not, have a dispute about it, and go off to the Family Court. This law does not override or interfere with the opportunity to have the Family Court determine an issue in relation to the paramount interests of the child. If the member is suggesting that there is some higher level of expectant entitlement of the surrogate mother, I think the answer to that is, no, they do not have a prima facie interest. However, they are entitled, subject to an order of the court, to retain the baby until the Family Court determine it.

Mr PICTON: To follow on from the member for West Torrens, whatever their view on this I think people would agree that this is an important issue to discuss, how it would evolve in legislation and in practice. My understanding from what the Attorney is saying is that in the situation where you have a surrogate mother who has decided to keep the baby—and I think particularly the member for West Torrens is mostly concerned about where that surrogate mother is not the donor of the ovum, I think it is fair to say—the intended parents, from what I understand from reading this and listening to the Attorney, would not be able to be inserted onto the birth certificate, the Youth Court would have no jurisdiction to decide matters of the birth certificate and it would be left to the Family Court, but the Family Court's deliberations would not be in terms of the birth certificate but in terms of custody arrangements.

The intending parents, who may be, particularly in the example given by the member for West Torrens, the donors, the best they could argue for before the Family Court is a custody arrangement rather than an arrangement in our state jurisdiction which covers birth certificates.

The Hon. V.A. CHAPMAN: I will try to answer this directly, to the narrowness of what is being asked. I think for the reassurance of members here, this process is designed to be able to create a lawful arrangement for which there can be enforcement. For example, if the surrogate agrees to carry a child—and she has ticked all the boxes, she is over 25, etc., and she is entitled, for example, if necessary, to get an order to recover her costs, reasonable expenses in relation to the surrogacy—none of this process interferes with or creates a situation upon her giving birth to that child which allows that child to be taken away from her. They are matters that will be determined by the Family Court if there is a dispute about it.

This is designed to bring about an accessible and enforceable process for the terms and conditions upon which the parties enter into that agreement and the registration of birth certificates and the information for birth certificates. That is what this is designed to do. It is to enable some capacity to provide a system of enforcement, if I can put it in those terms, which every other area that we have discussed that has these jurisdictions is currently doing. In fact, in South Australia they are already doing it, but they do not have the umbrella of protection of this. That is what we are trying to do here.

We are not trying to take away the right of any of the relevant parties to apply to the Family Court, the same as any other child the subject of a dispute over their residence or access arrangements. That remains with the Family Court.

Mr PICTON: I accept that that will remain with the Family Court in terms of custody. I guess my question is that, under the arrangements proposed here by the Attorney, in terms of the state's jurisdiction, the state's side of it—which is the birth certificate, the Youth Court—the intending parents would not be part of that if the surrogate mother decided to back out of the agreement. The Attorney said that this is to legislate for enforceable agreements, but that does not seem particularly enforceable to me. That may be wrong or right, but I am just trying to get clarity on that. I would also ask whether—

The Hon. V.A. CHAPMAN: I might just answer that question. I do not think there is any surrogacy law in Australia that says that a surrogate mother who has given birth can be forced to have the child removed—that is, taken away from her at birth. I do not think there is anywhere in Australia that allows that, and we are not proposing it here.

Mr PICTON: If I could finish my question, what I was about to say was: can the Attorney outline what the situation is in other states, given that we have a number of states that have surrogacy laws that have been in place for some time. I am not suggesting taking the baby away. Are there situations where other states have mechanisms in relation to the birth certificate that are not what is being proposed in this legislation?

The Hon. V.A. CHAPMAN: I have to take that on notice and provide that between the houses, if this matter passes here. I am happy to do that. As I say, the surrogate mother, who is the birthing mother for the purposes of explaining her position in what could be up to five relevant parties, remains the lawful mother until such other interventions occur. That may be by the Family Court, if there is a dispute, or it may go through a process where they present their position to the Youth Court and they get an order for the registration arrangements of the new receiving parent regime, assuming it all goes well.

If it does not go well, then they, like any other family, will have to resort to the Family Court for their relief and the Family Court will make those determinations based on its statute law, but with a paramount consideration for the interests of the child.

Amendment carried; clause as amended passed.

Clauses 11 to 17 passed.

Clause 18.

The Hon. A. PICCOLO: I move:

Amendment No 2 [Piccolo–1]—

Page 11, after line 36—Insert:

(2a) An applicant for an order under this section must provide to the Court (whether in an application or in proceedings under this section) such of the following information as is known to the applicant:

(a) the identity of the donor of any human reproductive material used in relation to the lawful surrogacy agreement and resulting in the birth of a child (being a donor who is not the surrogate mother or an intended parent);

(b) any other information prescribed by the regulations.

This amendment requires that genetic information be recorded and held and at a later stage enables that information to be made available to a child when attaining the age of 18.

The Hon. V.A. CHAPMAN: I indicate to the house that, whilst this obligation is there under other legislation, the member is seeking to have this same provision inserted and I have no objection to the same.

Amendment carried; clause as amended passed.

Clauses 19 and 20 passed.

Clause 21.

The Hon. A. PICCOLO: I move:

Amendment No 3 [Piccolo–1]—

Page 14, after line 39—Insert:

(fa) if known, the identity of the donor of any human reproductive material used in relation to the relevant lawful surrogacy agreement and resulting in the birth of a child (being a donor who is not the birth mother or an intended parent);

This amendment requires a court, having had that information recorded, to notify the Registrar of Births, Death and Marriages so that that information is available in the relevant format at a later date for a child attaining the age of 18 to access that information.

The Hon. V.A. CHAPMAN: Whilst this material is obliged to be provided under other legislation, again this is being sought to be inserted in this legislation to cover the specific arrangement in relation to parental arrangements, and I have no objection to the same.

Amendment carried; clause as amended passed.

Remaining clauses (22 to 32) passed.

Schedule 1.

The Hon. A. PICCOLO: I advise the house that I do not intend to proceed with my amendment. I will explain. I had discussions with the Attorney. What I have tried to do through the other amendments is to have consistency right across all legislation. This one would introduce a new area, which probably needs a bit more work, so in between the houses I will have further discussions with the Attorney to see if we can come up with some appropriate wording to have consistent laws right across the family relationships areas, which could be introduced in the upper house. I would hope to proceed to enable a child under 18 to have some sort of access, subject to appropriate criteria, to information about their birth.

The CHAIR: Just to be clear, member for Light, you are not proceeding with the amendment in your name?

The Hon. A. PICCOLO: That is correct.

Schedule passed.

Title passed.

Bill reported with amendments.

Third Reading

The Hon. V.A. CHAPMAN (Bragg—Deputy Premier, Attorney-General) (18:12): I move:

That this bill be now read a third time.

In doing so, I just have a brief comment, if I may, and that is to thank all members of the house for their careful consideration of this matter. I think that we have made progress here today that is going to be important for South Australian parents. I am talking about people who do not enjoy the same privilege that most of us have, and that is the opportunity to have a family, if we wish to, without the need for significant intervention or cost. Some of us are privileged to have that, and some of us are not. We have passed legislation here tonight that will have the benefit of putting that in a way that will provide a secure and accessible regime of protection for all the parties concerned.

I thank Joanne Kreis, who has had the carriage of the development of this legislation for years. I know that it has been a challenge. I thank the Hon. Mr Dawkins, who has had the carriage of the promotion of this legislation for decades, which is challenging. I do very much appreciate that, whilst everyone does not always get everything they want with legislation, it is fair to say that I think there has been a level of goodwill in relation to an important social initiative. I thank members sincerely for that.

Ms STINSON (Badcoe) (18:14): I seek to make a third reading contribution. I take this bill extremely seriously. I am glad that my party declared it as a conscience vote, because the issues that we are examining and assessing support for in this bill are for some members, of course, highly personal and traverse areas of intimate personal experiences and faith values.

The creation of a life in whatever way is the ultimate responsibility. It should not be entered into lightly, although of course sometimes circumstances escape us. I solemnly believe that we should all do what we can to protect children, whether born to biological parents or surrogates, whether brought up by foster kinship or adoptive parents, whether in same-sex relationships or opposite-sex relationships, whether in single parents households, dual parent households, shared custody or in extended family care arrangements. The pain of not being able to have a child is quite devastating for many people and we are indeed fortunate in this era to have science at hand to assist us.

I also just want to reflect on some of the comments that were made by members on both sides about the generosity extended by women who do become surrogates. That is such an awesome thing to do for another person. I think many of us would not be able to do it. We would find it too painful to have a child in our belly and then pass that child to another person. As many others have reflected on, the generosity and strength of character that it would take to do that should absolutely be commended. I hope that this bill, in its passage, does provide some comfort to people who seek to enter these arrangements. I personally have a great deal of admiration for someone who would bring a new life into the world on behalf of someone who has not had the ability to do that.

It has not gone unnoticed by members of this house that as a state, we take differing approaches in terms of securing the safety of children depending on the way they are brought into this world and the circumstances of their care. For example, a foster parent is required to undergo a national police check, a working with children check, interviews, training and other screening and assessment to ensure they are a fit and proper person to care for a child. Kinship carers are also subject to such an approval process while, of course, biological parents, no matter their circumstance, are not required to undergo such a process.

It has not gone unnoticed that as a state we apply working with children checks to schoolteachers, to sports coaches, to children's charity volunteers and to a host of others, while we do not expect that of a person with full-time care of a child even if they are not related to that child. Indeed, I have served on many boards—I am sure those opposite have as well—and held jobs that have required a working with children check, despite the work actually involving no contact with children. The approach to applying police checks, working with children checks and other screenings is patchy and inconsistent.

Reflecting now on the contribution from the member for King, I thank her for all her genuine work on this. I know that this process has not been easy, but I commend her for the many hours of work that she has put in to trying to get a good result here. Reflecting on her particular comments—and I do not want to verbal her here—that she hoped or envisaged that maybe in future there may be amendments in order to lift the standard that is applied under this bill to a different level, I do not feel that the inconsistencies that are so far applied across our system are a good enough reason to apply the lowest standards when new situations arise requiring regulation or legislation.

Surely, if we are to achieve any form of consistent approach, we should look to the several pieces of legislation across South Australia and commonwealth statute books, speaking of the needs of the child, the protection of the child and the best interests of the child as being paramount. If the needs of a child really are paramount—that is, the interests of a child ultimately trump the desires and wishes of adults—then that should be reflected in our approaches. We should be going to some lengths to ensure the highest level of protection for children even if it comes at the inconvenience of individual legislators, adults or existing systems.

I understand that it is a long and emotional journey for people who arrive at the position of wanting to have children through surrogacy, and I think we all in this place have friends and family who have faced fertility difficulties and are familiar with the physical and mental toll such difficulties take. There are many options that are considered and agonised over before a person or people reach the point of embarking on a surrogacy arrangement. Then there are further hurdles to clear in terms of health checks, negotiating relationships with family and friends, medical procedures, legal compliance and much more before a surrogacy arrangement under this bill can be entered into.

I understand that adding another check seems unfair, and for families with only the very best of intentions for their children, which are of course the vast majority of applicants, it must also seem an unfair impost. However, from the friends and family I have spoken with, and even those who have stories that have been published in the media, filling out an online form and waiting less than a month for a clearance or obtaining a national police check is the least of the worries they have along this journey.

For some people, I realise it may be more complicated than that if a conviction is exposed that requires explanation, but we all need to do what we can to ensure that parties to such a serious undertaking as surrogacy are fully informed and fully consent to the birth of a child. We also owe it to all the children to ensure their safety. Unfortunately, I do not think we have completely achieved that objective of doing all we can on this occasion, but I hope that in future we might.

It is the case that in so much of our law we are legislating for the few, for the small minority of people who will do, or seek to do, the wrong thing, and we do that to protect the vulnerable. Our entire criminal justice system is built on prosecuting the small number of offences and protecting the small number of people who are victims of crime, and that does mean that some liberties are infringed and it does mean that some inconvenience is caused, but it is the small price we pay for the protection of those who cannot protect themselves.

My concerns about the exploitation of children are not concocted. There have been cases of paedophiles seeking to enter surrogacy arrangements. Members would be familiar with the case of David Farnell of Bunbury in WA, who was convicted of 22 child sex offences. He had two surrogate children through an overseas arrangement, and that situation was exposed in 2014. There is also an instance of abuse reported in The Age in 2016 which involved an unnamed Victorian man who pleaded guilty to sexually abusing his infant surrogate daughters. The man was said to have a decades long history of accessing child pornography and had been abusing his young nieces before he became the biological father of surrogate twins. The man and his wife had become surrogate parents using a donor egg and a surrogate from a clinic in Asia.

In 2016, the Australian House of Representatives Standing Committee on Social Policy and Legal Affairs tabled a report on its 'Inquiry into the regulatory and legislative aspects of international and domestic surrogacy arrangements'. In a section of the report, citing a submission by Federal Circuit Court Judge John Pascoe, it notes:

…a number of cases have emerged of persons who have applied for and become surrogate parents of children born offshore despite convictions for serious offences against children.

That report goes on and is quite interesting, and I would recommend it to others to read if they are interested in further research on this issue.

Many may say, and have in the time that I have been speaking with members of the community about this, 'Why would a paedophile go to all the trouble of surrogacy?' That is because paedophiles do not think like you and I. They are not law abiding. They do not love children. They do not care for children or act in their best interest. The shocking and terribly uncomfortable fact is that paedophiles will and do go to great lengths to obtain access to children, particularly exclusive access to a child. And what more exclusive access is there than a child who is legally your own?

Yes, it is an extreme approach, but we have seen the lengths that paedophiles will go to, even in our own state, most notably Shannon McCoole. This is not a person who was involved in any sort of surrogacy arrangement whatsoever, but McCoole is a person who from a young age had a sexual attraction to children. He set about getting all the qualifications necessary to be a legal child protection sector worker. He paid all the course fees, he did all the years of study, he applied for jobs, he completed interviews, he sat the psychological testing and he did the professional development. He built close relationships with his colleagues, all so he could exploit children and create a worldwide international enterprise of child exploitation.

In my experience, particularly as a court reporter, paedophiles are not stupid. In fact, they are among the more intelligent in the criminal community, and we need to be smarter than them. Is a working with children check or a police check a guarantee that nefarious criminals will not exploit the system? No, of course not, but it is a step that we can take to give ourselves the best chance of deterring, detecting and rejecting anyone who does not have a child's interests at heart.

For those reasons, I am of course disappointed that more members in this place did not support a range of amendments that might have brought things to a higher point, but I am hopeful that might be achieved in future. The member for King, as I said, should be congratulated on putting forward her initial amendment for the working with children check, which I picked up after it was dropped, and for progressing the amendment in relation to the national police check, which was successful.

I have had to weigh my genuine commitment to child protection and my desire to see a rigorous though not onerous check with my desire to support the opportunity for people to have children through surrogacy. I do support those people who need to use surrogacy, but I also feel that the protection of children has not been adequately addressed in this bill. I hope it might be revisited in future and I look forward to speaking with like-minded members of this place.

Although I am really troubled by having a surrogacy act that does not provide what I feel is an appropriate, achievable and desirable level of protection for children from a minority who will seek to exploit them, obviously I have expressed my support for the bill overall. I support it because I do hope that people who have been unable to give birth to children themselves biologically have an additional avenue to bring children into their lives—children to raise, children to love.

I hope that my concerns about the deficiencies of this legislation are never realised, and I hope that every single person who seeks to use this legislation will be, of course, a loving parent whose life is filled with joy by their children and that their children's lives are, in turn, as fruitful and filled with love.

Mr MURRAY (Davenport) (18:26): I want to put on the record a number of things, the first of which is my very deeply personal empathy with and experience of the need for people to access reproductive technology and the love and joy that that brings. I am a supporter of this bill, with the caveat of it being able to encompass and embrace the checks that a working with children check provides. There is some ideology at play here: I want to discriminate. I want to discriminate against people who have convictions or who are on bail, for example, for matters of child sexual abuse, child pornography and the ilk.

As I said, in my time as a voluntary sports administrator, I have had situations where people on bail, subsequently found guilty and subsequently convicted of child sexual offences, sought to circumvent the deficiencies that exist with police checks. I want to discriminate against those people in this instance, and I make the point that we discriminate against them on a routine basis in schools and in other voluntary capacities without blinking an eye, and we do so because the rights of children are paramount. This bill seeks to make that very point in clause 6, where it talks about the best interests of the child being paramount.

We all know here today that there is a better way of ensuring protection for children than simply a police check. I have voted for a police check because, in the event that this bill gets through, it is better than nothing, but I am astounded—astounded—that we have a situation where the vast majority, if not all of us, know that there is a better methodology that is already applied here in South Australia on a daily basis. There is a better methodology provided and readily accessible for us to discriminate against people who should not be a party to a surrogacy agreement.

Many of us would have recently received correspondence from a variety of reproductive associations, from interstate in particular. I spoke to one of the people who took the trouble to write to us earlier today and I asked the same question: was there a belief on their part that convicted child sex offenders or those on bail for an offence of that ilk should be enabled to be a party to these agreements? Their answer was no. These are the same people writing to us suggesting we do not legislate to have this protection.

Now it turns out that, from a practical perspective, they make an assessment themselves about whether or not a working with children check is required. I am working on the basis, as I explained earlier to the house, of advice I received from the Attorney-General that we cannot avail ourselves of the working with children safety framework in this particular instance, and as a result we are forced to forgo the protection it would otherwise provide.

It appears to me that the processes used interstate to assess surrogate parents will, by definition, as a result of that be incapable of being enforced in this jurisdiction. To reiterate, the advice that I am reluctantly forced to accept is that we cannot avail ourselves of the data we have on hand that enables us to discriminate on a daily basis, particularly within our education system, churches and other voluntary attempts as well.

In my view, as a result this bill, notwithstanding the joy it would otherwise bring to many people, and the regulation that it seeks to provide, with the enormous amount of work, does still pose an unacceptable risk, given the deficiencies of that check. I am opposed to the bill and would ordinarily vote against it, but I give notice that I have agreed to be paired with someone who would vote for the bill.

So I am voting against the bill and I would appreciate not just my comments but a recording of the fact that I wish to vote against the bill on the basis that it represents an unacceptable risk to children, notwithstanding its merits otherwise. It is an abrogation of our collective responsibilities, and in particular our failure to address ourselves to and avail ourselves of the information we have today, which works. In so saying, I will cease my commentary.

The Hon. S.C. MULLIGHAN (Lee) (18:32): I rise to make a few brief remarks about the Surrogacy Bill. There has been some heated debate on a number of different pieces of legislation over the last few days, mostly due to my involvement, if I am honest, and during the constant driving, again mostly from this side, I have made a number of references to a frustration I had that we were talking about other pieces of potential legislation, other bills, rather than the Surrogacy Bill, which we are now discussing.

I made the comment on a number of occasions that I honestly thought that we would be dealing with this bill until its finalisation last sitting week, a couple of calendar weeks ago, so that we could provide some certainty and, in my view, some better access for South Australians who find themselves otherwise confronting barriers to having a child. I will not go into the well-worn paths of describing why it is important for people who genuinely want to have a child to be given that opportunity; I think we can all readily understand why that is a noble thing for them to pursue and, importantly, for us to facilitate, particularly when there are the sorts of biological impediments that many people encounter in their lives.

I very much wanted to see the passage of the bill, and I really only had one caveat. I guess that caveat was placed on my thinking through the pretty challenging and robust journey we have had as a state over the course of the last more than 10 years now about confronting, I believe in a way that no other jurisdiction has had the courage to confront, the real underbelly of people in our community who have been prepared to exploit children.

At times, it has been extremely difficult for us to grapple with the fact that unfortunately there are some people who live in our community who are willing to do the most dreadful things to children, despite the impediments that we as a parliament—I say 'we', even though I have only been in parliament since 2014—often previous parliaments, have placed in the way of individuals who have sought to exploit children. There has been a concerted effort over at least the last decade, if not more, to try to prevent those people who would otherwise exploit children from exploiting children.

I am fortunate in that I have not had the experience, for example, that the member for Davenport has had where they have been in a position of responsibility and they had to head off at the pass somebody who tried to put themselves in a position where they might be able to exploit a child. Nonetheless, I find myself in the position, as the other 46 of us do as members of the House of Assembly, of trying to decide on a law which will provide greater access to children as a result of passing this bill, again, I stress, for very noble, worthwhile and supportable causes.

My only caveat, really, was to require that the people involved in a surrogacy arrangement would be subjected to a working with children check to provide that greater level of comfort to the community and also to me, as somebody being asked to make a decision on this, that we were doing all that we could to minimise the risk of people trying to use the path of surrogacy as a way to gain direct access to a child. I am sorry to put it so coldly or clinically, or to give the impression that there might be some people in the community who would be so calculating as to go to that extent and that effort—let alone that expense—of engaging in a surrogacy arrangement in order to be the caregiver or other role player in a surrogacy arrangement.

To be honest, I did not give as much thought to this bill as I have had to do in recent days because I had a lot of comfort when the member for King moved her initial amendments about requiring a working with children check. I do not see it as my particular role to impose particular judgements on who should or who should not have access to a surrogacy arrangement. As long as we are satisfying ourselves that the safety of the child is protected as much as we can, then that is a responsibility that we have collectively discharged as a parliament.

I was surprised that an alternative amendment was then placed that, instead of requiring a working with children check as required by the member for King's amendment, just a police check would be required. Again, as I have said, I have not had the experience that the member for Davenport has had, but the member for Davenport provides an instructive example about how somebody with a clear police check—if I can put it like that—can navigate around the concerns of someone to try to establish their bona fides in order, for example, to become a sporting coach or, perhaps, in this instance, become a party to a surrogacy arrangement.

If, for example, they are charged with but not yet convicted of a criminal offence that involves the exploitation of a child in some way then it is likely that they can pass a police clearance but not a working with children check. I would have thought that, given this extremely painful and arduous journey we have been on as a state in trying to confront our child protection demons as a community, we have created and placed importance on a working with children check for so many people in our community—I think we are up to over 150,000 volunteers now, for example, who are required to have a working with children check, let alone all the people who are engaged in professions, including teachers and taxidrivers, caregivers and so on—that when we were trying to establish the bona fides of somebody who wanted to be a party to a surrogacy arrangement we could also insist on a working with children check.

I think it is really regrettable that we have a settled bill now, if I can put it like that, that we are about to vote on that does not include that protection. I am quite genuinely upset that, without that protection, I now find that I cannot support this bill. That is despite supporting all the intents of the bill and that is despite supporting opening up the access to surrogacy arrangements for many more South Australians who have up until now not been able to access surrogacy arrangements, and that really does disappoint me.

I am actually hoping that my opposition to the bill does not make the difference and that it still means there are enough people in this place to see this bill pass. For those people who have been locked out of surrogacy arrangements previously, there is a large part of me that really wants them to have access to those arrangements and experience all the joys and all the fulfilment that parenting a child can bring. But, unfortunately, there is still enough of me that is so caring and so deeply passionate about the need to make sure that we are taking every single measure possible to protect children from exploitation, even those children who have not yet come into the world, that the absence of a working with children check means that I cannot support the bill.

I really hope that the assurance that we have received collectively from the Deputy Premier about how challenging it is to ask an administrative unit of a department to take on a different role or an additional role to what they have previously, or the incapacity for her to imagine that a national partnership agreement or a similar agreement reached between the Standing Committee of Attorneys-General cannot be changed, does not mean that there are a number of people like me in this place who have to go and vote against this bill, which causes the bill to fail. If that is the case, not only will I be extremely disappointed that I have not been able to support this bill that I have been passionate about supporting otherwise but it will place an extremely heavy burden of responsibility on that member who has provided that advice to the parliament.

If there is any inkling or any iota of a suggestion within the Attorney's mind that perhaps it is not quite so hard as we have been led to believe that a working with children check could be supported, then that is something that the Deputy Premier will have to think about. But, unfortunately, I am not going to be able to support this bill at the third reading, and I can advise the house that that genuinely aggrieves me very deeply.

The house divided on the third reading:

Ayes 36

Noes 5

Majority 31

Third reading thus carried; bill passed.

At 18:49 the house adjourned until Tuesday 15 October 2019 at 11:00.