Surrogacy Bill

Committee Stage

In committee.

(Continued from 12 September 2019.)

New clause 5A.

The CHAIR: My recollection is that the member for Badcoe had moved new clause 5A and was speaking to that. The member for Badcoe has the call.

The Hon. V.A. CHAPMAN: Mr Chairman, I think, with respect, the member for Badcoe had taken two questions and comments from me and I was about to embark on my third in relation to her amendment.

Ms STINSON: I could be wrong, but my recollection is that I had taken my third question from minister Knoll.

The Hon. V.A. CHAPMAN: Each person has three questions to ask.

The CHAIR: The Attorney has the call.

The Hon. V.A. CHAPMAN: In relation to the resumption of the committee on this bill, for the purpose of those who are following it the member for Badcoe's amendment is under consideration. Essentially, this is a proposal which had been first presented for consideration but which was withdrawn by the member for King. It proposed that parties to a surrogacy agreement, if they were going to seek lawful enforcement, would be required to provide evidence that they had had a working with children check if they were to ultimately succeed in having an enforceable agreement.

It was a proposal that had been identified by the mover of the amendment as being more fulsome and more comprehensive and therefore provide greater safeguards to potential children of an agreement against either their surrogate or receiving parents in some way exploiting or abusing them in the future.

I do not make any further challenge in relation to the importance of protecting children. I would be surprised if there is anyone in this chamber who does not take the view that that is really important. However, there was a good reason why the member for King, having first floated that level of check and that protection from consideration—that is, unfortunately, it does not work. It is not in a workable form that will actually provide the protection that the mover is so keen to present and ask for our support to vote with.

The reason for that is essentially that the obligation to provide a working with children check—which, as members might recall, is more than just a search of any police convictions; it is also of investigations, charges, findings of breach without convictions recorded—is a very much more comprehensive report largely sourced from information by the investigative officers, and they are usually the police.

Why is this defective? There are two reasons: one is that the unit charged statutorily to provide this service on a number basis, and a continuing service, for the future employment of people, is a unit that is established and populated with its statutory role from legislation. That legislation, the child safety legislation, says it has this job and this is what it is to do, and it is to be for employment purposes. Nothing before us introduces a situation, without any consultation, as to charge this unit with having this new job.

The second thing, and probably the most important for the purposes of denying the benefit of this proposal, which otherwise sounds meritorious, is that the police are the people who provide that information—who has been charged; whether they have investigated people; whether they are still investigating people; whether they have investigated a matter, charged, withdrawn the charges, etc. Those people have to have permission to be able to provide all this other body of information about someone. The thing that is stopping them from doing that, and will still stop them from doing that even with the passage of this amendment, is that there is a COAG agreement that prohibits them from providing that information. The reason is—

Mr Malinauskas interjecting:

The Hon. V.A. CHAPMAN: I get shouting from the Leader of the Opposition in relation to this—

The CHAIR: Order! The Attorney has the call.

The Hon. V.A. CHAPMAN: —just in case there is ever a Supreme Court judge who is reading this Hansard to find out why on earth the parliament would pass a piece of legislation that cannot actually do what is, I accept, a genuine attempt to protect children and fail to appreciate that, if they want to do that, they are going to have to come into the parliament with the full catastrophe, the full properly prepared reforms that will enable this to happen. One of them is to have this national conversation about whether the police should be either obliged and/or have permission to provide information for purposes other than the employment restricted use that they are to make this information available. We have not had that conversation. It may take a very long time to have it.

Let me say this: if this legislation were to pass with this amendment in it and, frankly, we fail to positively consider the amendment from the member for King, which is foreshadowed, I tell you what we will be left with: we will be left with a bill which provides for surrogacy which purports to have a protection in it for the obligation of a working with children check. It would be like having a dog fence bigger, better, wider and stronger from the member for Badcoe and a lower, less strong fence from the member for King, but the problem with the member for Badcoe's fence is that it has holes all the way along the bottom and the dogs can just run through. In giving us lectures, the member for Badcoe—

Members interjecting:

The CHAIR: Order! Attorney, can I interrupt for a minute. I am going to ask the opposition to cease interjecting. This is a private member's bill and there will be varying opinions. Each and every member is entitled to voice those opinions and put forward those opinions today during the committee stage. I ask that all of you respect the other's opinion. The committee is called to order.

The Hon. V.A. CHAPMAN: Thank you, Mr Chairman. The problem with the presentation of this as being a means by which we protect children is that it is frankly gossamer. It cannot protect children in this form. We would be passing legislation, if the bill is ultimately in favour for this house to pass, with an amendment in it which provides for a working with children check which—even if the unit answered the phone call and said, 'Yes, we have information about that person. There's nothing here,' and the police had a whole lot of information about this person and was not able to provide it to the unit—is a vacuous and simply inadequate provision for all those children.

Members interjecting:

The CHAIR: Order!

The Hon. V.A. CHAPMAN: So if you want—

Mr Malinauskas interjecting:

The CHAIR: Leader! Attorney, can I interrupt again for a minute. This is going to be a long day if it continues like this and I want the debate to be in good spirit. The leader, I know, wishes to speak to this shortly and he will be entitled to be heard uninterrupted as well, as the Attorney is. Attorney.

The Hon. V.A. CHAPMAN: In the circumstance where the member for Badcoe wants us, as a parliament, to provide these protections and act responsibly, and tell courts and agencies, including the unit, what we expect them to do, if this is the will of the parliament, all I say to the member for Badcoe is: you have to do it properly. You have to do it in a way that is going to make a difference so that it is going to be effective and not let those dogs just walk through the holes. That is the problem we have here.

I encourage all members to think of better ways you can improve legislation, protect children or otherwise, and bring those to the parliament. But when you do and you have them drafted—and they are perhaps in a bit of a hurry, but nevertheless I am giving an excuse here for the mover of this amendment—we need to have something which ultimately is able to be applied and enforced, and this will not prevail.

However, let me move to another matter which has been brought to my attention. There has been a general question raised about the need to have history checks of some kind, whether criminal or investigative and criminal, on applicants or parties to these proposed agreements. One of the important and not unreasonable questions raised is: Victoria looked at their surrogacy agreements and decided they should have a child protection measure like this in their legislation, so shouldn't we be following them?

Some have said that since then New South Wales have looked at that and said no. We will not be doing that in ours because we agree essentially with what the recommendations from our institute has set in South Australia, and that is that it would provide a discriminatory measure in relation to different ways people can have children—naturally or IVF, etc. Those arguments have been run; I am not here to repeat them.

I will make this point. I have had correspondence from the Fertility Society of Australia IVF Directors, dated 24 September. The reason it is very important that I inform the house of this is that they have had a task of reviewing the legislation in Victoria, including in that the obligation for the provision of police checks. Mr Rick Forbes, who is the executive committee of the IVF Directors Group Fertility Society of Australia, said as follows:

Dear Ms Chapman

The IVF Directors Group is the body constructed by the medical directors of each reproductive treatment accreditation committee, accredited ART clinics providing assisted reproductive treatments to patients in both Australia and New Zealand. RTAC accreditation is a requirement in both jurisdictions for clinics which provide assisted reproductive treatments to patients. RTAC regulates a strict and rigorous self-regulatory regime. The current proposed amendment to the Surrogacy Bill 2019 proposing police and child protection checks—

The CHAIR: Attorney, can I interrupt you again, please. Standing order 364 limits the time available. We have been watching the clock here. It is limited to 15 minutes. You are coming to that now. Are you able to draw—

The Hon. V.A. CHAPMAN: That is alright. I can continue—

The Hon. S.C. Mullighan interjecting:

The Hon. V.A. CHAPMAN: I am quoting from a letter.

The CHAIR: The Chair has the call here, member for Lee. I am pointing out to the Attorney that her time is drawing to a close. She will need to bring this contribution to a close.

The Hon. V.A. CHAPMAN: Thank you. I indicate in that case that I will be referring to this on the next clause and I indicate that, even if it is completely meritorious, on the objective of what the mover of this amendment is doing it will fail because it will not be able to be implemented. I urge members in those circumstances not to pass laws here that we cannot impose, but if you want to do it you have to do it properly. In the meantime, the member for King has offered to the parliament, I think, a practical resolution to the issue at hand.

The CHAIR: The leader.

Mr MALINAUSKAS: Thank you, Mr Chairman, for the opportunity to address this amendment. I want to ask one question and then follow it up with a statement for the Attorney.

The Hon. V.A. Chapman interjecting:

Mr MALINAUSKAS: I will speak to the amendment, then. The idea from the Attorney-General that COAG positions are unable to be changed and are somehow written into stone and not open to amendment is simply false.

The Hon. V.A. CHAPMAN: Point of order: at no time have I indicated that COAG agreements cannot be changed. I am offended by that allegation—

The Hon. S.C. MULLIGHAN: Point of order: if she would like to make a personal explanation—

The CHAIR: Member for Lee, could you take your seat please. I will see this point of order first.

The Hon. V.A. CHAPMAN: —and I would seek that he withdraw it. I am offended by that; it is wrong and offensive.

The CHAIR: I would honestly need to check Hansard, but if the Attorney feels misrepresented and aggrieved then—

The Hon. S.C. Mullighan: She should make a personal explanation.

The CHAIR: No, the Attorney made her point. Everybody is going to have an opportunity. The leader may disagree with that, but he has caused the Attorney some concern with what he has said. I draw you back to the debate on the amendment, leader.

Mr MALINAUSKAS: The simple point that I seek to make is that the Attorney has sought to imply that the existing COAG arrangements are an impediment to seeing a working with children check being put in place, as this amendment proposes. I reject that. I am of the view, and I think a number of people in this chamber would collectively be of the view, that if this amendment necessitates a change to a COAG position in order to ensure that we have a working with children check standard applied in regard to surrogacy, then that is a necessary thing. That would be a good thing to do.

I simply make a broader point regarding the amendment, and also the bill generally, that I would count myself in the category of being inclined to support this bill. I think the aims and objectives of the bill are meritorious. I think trying to put in place a degree of structure and regulation around surrogacy in this state would be a good thing to do, but I am genuinely concerned at the prospect of that arrangement being in place without a high standard of protection, checks and double-checks for the people that it would apply to.

A working with children check, as is being proposed by the member for Badcoe, strikes me as making a lot of sense to satisfy those people in the community who would reasonably expect the parliament to do absolutely everything within its power to prevent a heinous crime, a horrific set of circumstances or a child being brought into this world in an environment that compromises their own wellbeing. That is an absurd proposition. This standard, this amendment, is a reasonable one and it would go a long way to satisfying me that this bill is worthy of support.

I would put to the parliament and the Attorney-General to contemplate this: if, indeed, there is a high order objective to be achieved in the bill by providing a method for surrogacy to occur in this state, and if the view is that it is a good thing, then why not support this amendment? That would maximise the likelihood of this bill passing in the parliament today. It really is that simple. If the Attorney-General and those people who are proponents of the bill want to see it pass and want to see a good outcome here for surrogacy regulation in South Australia, why not support a high standard in the form of a working with children check?

What would horrify me, and what I think would be very unfortunate for those people who would be the beneficiaries of the bill passing, would be to see it fail for nothing more than the Attorney's pride or nothing more than trying to avoid the Attorney having to do the work of seeing the relevant COAG agreements changed. That would be a really, really sad state of affairs. This state has been a leader within the commonwealth on a number of different areas of reform over the years at COAG. A relatively modest and simple thing that I suspect would be supported by other states within the federation would be a very reasonable step for the Attorney and the government to pursue in order to achieve the higher order objective here of seeing the Surrogacy Bill pass.

To the Attorney and to the parliament: do not compromise the success of this bill because of pride. Do not compromise the success of this bill because of a lack of appetite to do the necessary reforms at COAG. I implore the parliament to support this amendment and maximise the likelihood of the bill passing.

The Hon. S.C. MULLIGHAN: I rise to speak in favour of the amendment put forward by the member for Badcoe, and I am grateful that we finally get the opportunity to try to make some progress on the Surrogacy Bill. There were several of us on this side of the chamber who were looking forward to completing the debate and, indeed, hopefully—touch wood—passing a bill to improve the opportunities for South Australians to participate in surrogacy arrangements.

I will not go into the whys and wherefores of the repeated adjournments and passing over of the opportunities to debate this bill. Clearly, the Deputy Premier and the Leader of Government Business have their own reasons for not bringing this on prior to now, and I am sure that those additional weeks of delay will cause those South Australians some frustration.

However, we find ourselves in the extraordinary situation where we have the member for Badcoe proposing an amendment to this bill which had previously been proposed by the member for King but which, for some reason, had been withdrawn by the member for King. No-one on this side of the chamber can really know what caused the member for King to withdraw that amendment. We are told by the Deputy Premier that it was for a sound policy reason, which, judging by the debate so far, only the Deputy Premier seems to see the merit of.

But I feel that it is regrettable that the member for King has had her opportunity to put forward her view about how this bill should be amended stymied, presumably by the Deputy Premier. Nonetheless, here we are, finding ourselves with an amendment here which, as far as most of us can gauge, seems to enjoy sufficient support across both sides of parliament to enable the bill to be amended and then passed. What a great outcome that would be for people who are supportive of more opportunities for surrogate arrangements to be entered into here in South Australia.

The arguments put forward by the Deputy Premier about why a simple police check would be a preference over having a more thorough working with children check, quite frankly, are rubbish, absolute rubbish. First of all, to continue on from the Leader of the Opposition's comments about the allegedly infallible COAG agreement, the agreement which, much like the tablets brought down from the mount, can never be questioned, can never be altered and must be the foundation of human activity for thousands of years to come and can never brook any questioning or any change—well, that is just rubbish.

I imagine a situation where somebody is invited to the residence of the Governor and they are afforded a commission that made them responsible for the superintendence of law and order matters here in South Australia. By virtue of that commission, they might be a participant in a standing committee of attorneys-general meetings that occur from time to time, usually in Canberra. That person might have the wherewithal to one day put up their hand at that meeting and say, 'Our parliament has a preference that we require these checks when entering into certain surrogacy arrangements and, if we have some arrangements here that are inconsistent with that, then I would like to make it clear to this forum that I will be seeking and working to change that,' and then be so competent and so capable and so coerce her fellow members of that committee that change could be effected. Apparently all those scenarios, following the receipt of the commission from the Governor, are beyond the Deputy Premier.

I find that remarkable. I find it remarkable that a member of the executive, on hearing what instructions they may be about to receive from this parliament, puts up their hand and says, 'I'm sorry, this is beyond me, so you had better not even suggest it.' That is just remarkable. Is this place not sovereign? Does this place not set the law by which we expect these agreements to be entered into?

Then, of course, there is the second rationale put forward by the Deputy Premier, and that is, 'Well, we have a unit that is dedicated towards the completion of these working with children checks but, essentially, they didn't realise they would be up for this, so they can't do it in the future.' Really? Is that really all the Deputy Premier can come up with to try to convince us of the merit of the argument, that they are not currently doing something, so they cannot be expected to do something in the future?

Well, why are we all here? Everything is fine. Nothing needs change, nothing needs attending to, the state does not need any further superintendence. Job done. No laws need changing. We can just sit here and maybe have the odd question, and maybe even get a question up in question time. We can have the odd question time, and go through the motions of responsible government, and then that is it. You have to be joking that that is the best argument that can be put forward by the Deputy Premier. It is just remarkable.

Of course, it is very clear what the choice is: you either have stronger protections for the community when it comes to those people seeking to enter into these surrogacy arrangements or you have weaker projections. I think the message is pretty clear. There are a lot of people in here who want to get this bill passed. They want to see change when it comes to surrogacy arrangements.

No-one buys the false argument from the Deputy Premier that this is about filibustering, because there was no-one on this side who could repeatedly adjourn off and adjourn off and adjourn off this bill. We were ready to go last sitting week, we were ready to go on Tuesday, we were ready to go on Wednesday. We were even promised yesterday afternoon, we were even promised last night—

The Hon. V.A. Chapman interjecting:

The CHAIR: Order! The Attorney will come to order. Member for Lee.

The Hon. S.C. MULLIGHAN: We were even promised last night. But time and time and time again this government has denied this bill the opportunity to have its time. Now, when we finally get its time, we are being confronted with these bogus arguments from someone who quite frankly should know better. It is an outrageous slight on all those elsewhere in the parliament, including on this side, that this is not a genuine attempt to improve surrogacy arrangements in South Australia and that this is not a genuine attempt to make sure that protections are strengthened.

I cannot believe that the Deputy Premier would bowl up these bogus arguments; even worse, I cannot believe she would do it to one of her own backbenchers.

The Hon. V.A. Chapman interjecting:

The CHAIR: Order! The member for Heysen has the call.

Mr TEAGUE: Briefly, I am moved to respond to the contribution of the Leader of the Opposition just now in relation to the test that has been put up and, to a certain extent, amplified by what I would describe as highly unnecessary grandstanding from the member for Lee on the question of what we are debating here and the merits of it.

I propose to return to the merits of the debate and raise the concern I have that, in this context, what we are endeavouring to do is regulate the assisted reproductive treatment that is necessary for a certain group of prospective parents. As has been raised by a number of sources, including experts who have experience in the field, we run the very real risk, in this context, of creating at least two classes of would-be parents—and I would say three.

We see parents who require the assistance of IVF treatment, a process of longstanding nationally, and alongside that we are to compare a group of parents who require going down the surrogacy path. One might put it in terms of a prospective mother without ovaries on the one hand who requires IVF treatment and a prospective mother without a uterus on the other hand who requires surrogacy assistance. We are proposing to go down a path that would treat them very differently, and that is not to even mention prospective parents who do not require assistance with reproductive treatment.

To the Leader of the Opposition, I make the observation that the test that he has propounded begs the question that we as legislators, if we are going to start imposing tests on parents, need to then continue to deal with the landscape around all would-be parents in this state. Do we start to think about imposing parental tests on every prospective parenting arrangement in this state? Do we impose tests to create a system of oversight for all those categories? For the moment, I leave that question for the Leader of the Opposition to answer.

From what I heard, there is no adequate answer; it is a false test. There is no race to the bottom in terms of how we as a parliament might send a signal to the public about how we are concerned about protecting the safety of children born in different reproductive arrangements. I put that out there. Secondly, I am moved to address the remarks of the Leader of the Opposition and the mover, insofar as the time that we come to debate these measures.

The member for Lee may not be interested in the merits of the debate. In fact, the Leader of the Opposition, having made his remarks, has left the chamber. The member for Lee, having made remarks that are critical of the Deputy Premier, is on his way leaving the chamber.

The CHAIR: The member for Lee has a point of order.

The Hon. S.C. MULLIGHAN: It is not only unparliamentary to reflect on the presence or location of somebody either within the chamber or outside the chamber but it is also an offence, which customarily results in the naming of a member and an expulsion from the chamber. I ask that you rule accordingly.

The CHAIR: Member for Heysen, you should not have reflected on the presence or otherwise of a member in the house. It is not the first time it has happened, not necessarily by you, but in times past it has happened. It is against standing orders and you should not have done it, and I direct you not to do it again. Yes, member for Lee, he is not going to do it again.

Mr TEAGUE: I am grateful, Mr Chair. I thank you for your guidance.

The CHAIR: Just remember that, member for Heysen. Back to the debate, member for Heysen.

Mr TEAGUE: I make this point briefly: again, on the merits of the debate, we are here debating the merits of this proposed amendment. We come to this debate at a time when the state of Victoria has been involved in this space now for a considerable period of time with a regime that leads towards a presumption against treatment following a series of superadded checks that are made of would-be participants in a surrogacy arrangement.

As recently as 28 August, the government of Victoria has published feedback in response to consultation about the way in which that regime has operated. As has been referred to by both the government and others in recent times, that feedback is, in my view, worthy of serious consideration by participants in this debate. The feedback shows us that not only would the superadded arrangements create a second or third class of would-be parents but they do not work. As a result, the Victorian government is presently considering withdrawing that entire aspect of the regime. I would invite that the debate return to the merits and that there be consideration of the evidence for and against this kind of superadded condition.

Mr BROWN: As this is a conscience vote, I feel it is important for me to get some thoughts about this on the record so that my constituents can attempt to understand my thinking and why I voted a particular way. Firstly, I pay tribute to the advocacy skills of the member for Heysen: he has again shown why he is regarded in this place as one of the best advocates on the government side. He gets his riding instructions and he comes in here and does an excellent job, as always.

We are being asked by this legislation to create a legal framework that results in an agreement being struck between parties to produce a child and bring a child into this world. As a result of that agreement, a deliberate act of parties, the custody of the child will then be transferred by a court from one party to another. This is very serious, and a very serious piece of legislation.

We are being asked to decide here what standards and safeguards should apply to protect this child from exploitation. It is not COAG that is being asked to decide the standards that apply in this particular case, it is not the screening unit that is being asked to decide the standards that will apply in this particular case: it is this parliament here. All of us will be deciding. We are the ones who must vote to establish standards and safeguards to protect a child.

Yes, we have heard arguments that some people under some circumstances do not have safeguards applied to them, so really why should safeguards or standards apply to anybody? It is this lowest common denominator approach that we have heard about. I reject this utterly. We have to take responsibility and we have to decide the standards and safeguards. I cannot speak for other members of this house, but in my opinion our only option is to apply the highest possible standards.

Near enough is not good enough in this particular case, so I urge all members to support the amendment of the member for Badcoe, which was originally the amendments of the member for King, and I congratulate her on bringing these amendments to the house in the first place. It is disappointing they have been withdrawn, but here we are.

I also indicate to the house—and I understand a number of other members are of the same view—that this is the only standard that I can accept, and should this standard fail to be adopted by the parliament I will find it difficult to support the legislation as a whole at all.

The CHAIR: Member for Kaurna, you will just have a couple of minutes and then we will report progress, but we will be back this afternoon.

Mr PICTON: I will start. I promise not to speak any longer than the Attorney spoke in her contribution.

The CHAIR: There is a 15-minute time limit—

Mr PICTON: I hope it is applied to me in the same way it was applied to her.

The CHAIR: —and she spoke for 15 minutes, member for Kaurna.

Mr PICTON: I think this is an important amendment that was originally proposed by the member for King—and I thank her for that—and now has been picked up by the member for Badcoe, and I thank her for that. This is an important area of law, an area where, once again, technology has not caught up with the law, and it is important for us to consider these very difficult matters. I think it is appropriate that it is a conscience vote; I think it is appropriate that members will agree to disagree on some of the important matters being debated here.

I for one am in support of the member for Badcoe's amendment; I see it as an important safeguard. I look at the system in Victoria, where this has been in place for many years, and I can see that in Victoria clearly a decision has been made by the Victorian parliament that there is some risk, and because the parliament there has decided that there is some risk they have put a number of steps in place to manage that risk. There is a panel that assesses the applications, and the applicants need to have a completed child protection check in Victoria.

Progress reported; committee to sit again.

Sitting suspended from 13:00 to 14:00.