Family Relationships (Parentage Presumptions) Amendment Bill

Final Stages

Consideration in committee of the House of Assembly's message.

(Continued from 11 February 2016.)

The Hon. G.A. KANDELAARS: I move:

That amendment No.1 be agreed to with amendment and consequential amendment, and that amendment No. 2 be agreed to.

To explain, the Hon. Tom Kenyon, the member for Newland, moved amendments to the original bill passed by this house, the Family Relationships (Parentage Presumptions) Amendment Bill 2015. Those amendments effectively required that the biological parents be listed on the birth certificate and that that be held by the births, deaths and marriages registry. This amendment effectively would only identify the biological parents with the express request of the applicant for the certificate, which is the child, but the failure to do so does not make the certificate invalid.

The other consequential amendment is that, because at the moment there is a review being undertaken of the Assisted Reproductive Treatment Act 1998, and within that there is a discussion about where the registration of biological parentage should be, currently the act allows that the Minister for Health may establish a register. I understand at the moment the register that maintains the biological information of the donor parent is held by each of the individual firms providing the service.

In the end, this amendment, if so agreed, would ultimately—if the review that is being undertaken did not provide some other suggestion in terms of the registration of the donor biological parent—lead to that being held by births, deaths and marriages, but it would not be automatically placed on the birth certificate; it would be in the background. What this does is allow time for that review to be undertaken before the proposed amendment would take effect.

The Hon. S.G. WADE: It is of course extremely unusual to have two amendments filed on the afternoon of a bill being considered, particularly on such a sensitive matter. I will refrain from being critical particularly in this context because I know that people who are involved with this bill have been having constructive discussions with members of another place, and my understanding is that the filing of these amendments is to try to facilitate that discussion.

Whilst I will be supporting this amendment, I stress that I am only doing so with such little notice because I do support a constructive discussion with members in the other place. I would immediately flag some of the concerns with the amendment. We have had it for just under half an hour in terms of the filed copy and, with all due respect, I do not read the amendment in the context of the act in the same way as the Hon. Gerry Kandelaars does.

Again, with limited time to consider the issues, my reading of division 4 of the Births Deaths and Marriages Act suggests that an applicant need not be the person in relation to whom the certificate exists; it can be any person or organisation that, in the view of the registrar, has an adequate reason for wanting the information from the register.

I certainly hope that those who are involved in discussions, in perhaps facilitating an agreed amendment with the other place, might reconsider the Hon. Gerry Kandelaars' amendment. We could leave it in the hands of the registrar to decide whether a particular person has adequate reasons to know a person's biological parents, even if they are not the progeny of those biological parents, but I find it hard to imagine circumstances such as that, so it may be something that we need to consider in the legislation.

As I said, I want to facilitate a constructive discussion. I will be supporting the amendment. I do want to stress that, for the Liberal Party, it is a conscience vote. I will be considering any further amendments that come back from the other place, significantly putting a priority on the rights of a child to have access to their own biological history. As shadow minister for health, I appreciate that, more and more, a person's ability to manage and enhance their own health will be significantly enhanced by having access to that history.

In relation to the Hon. Gerry Kandelaars' comments about the site of the registry, shall we say, my understanding is that some of the key information that is held at the moment is held by private organisations in relation to reproductive medicine, and I am very uncomfortable about that situation going forward. If it were a choice between the Registrar of Births, Deaths and Marriages and the Department for Health, I would tend to lean towards the registrar.

The Hon. G.A. KANDELAARS: By way of explanation, I do accept the member's concern that this was rather rushed, and I must say that I only became aware that this matter was being brought on around 1 o'clock today. I do understand why the honourable member wants to deal with it as soon as possible, given that there are real people who have real reasons for this bill to pass. I was just trying to be constructive in terms of moving the issue forward and I hope this will do it. I acknowledge the concerns the honourable member has raised in terms of the applicant issue and that needs to be further explored.

The Hon. R.I. LUCAS: I have a question for the Hon. Mr Kandelaars. I have been told that the member for Newland has admitted that he got it wrong in terms of his amendment. Can the Hon. Mr Kandelaars confirm whether it is the case that the member for Newland has acknowledged that? I am not aware of the discussions. Is this amendment he is moving a result of the member for Newland agreeing with the Hon. Mr Kandelaars?

As I say, I am not privy to the discussions that the Hon. Mr Wade has referred to that have gone on with people in the other house. Does that involve the member for Newland? I have two questions. First, is it correct that the member for Newland has admitted that he got it wrong? Secondly, has the member for Newland been involved in the discussions that have resulted in this amendment?

The Hon. G.A. KANDELAARS: No, the member for Newland has not had any input into this. In terms of the first question, did he acknowledge a mistake? We did have a discussion with a number of people and he did acknowledge that it lacked that privacy provision that we are trying to insert in this particular case. He acknowledged that it would be better that the information about the biological parent only be made available on the approval of the child in question.

The Hon. R.I. Lucas: But, Gerry, is he supporting this amendment?

The Hon. G.A. KANDELAARS: Is he supporting it? No, he has not been consulted on it.

The Hon. R.I. Lucas: So, you don't know whether he's—

The CHAIR: Go through the Chair, please.

The Hon. G.A. KANDELAARS: No, he has not been consulted on it. This is just an attempt to move the thing forward in a reasonable way.

The Hon. T.A. FRANKS: I rise on behalf of the Greens to indicate that we are very happy nine months on from the vote in the Legislative Council to finally see this bill return in a message to this place. For a very small number of families, this bill will give recognition to both parents where a mother and her female partner willingly go and conceive a child through artificial reproductive technologies but have not lived together for the previous three years prior to that conception.

Finally, like other women in that position who conceive a child together but who have lived together for three-plus years, those who had not lived together for that three-year qualifying period will now be able to have both mums of that child on the birth certificate. It is a small cohort who have waited nine long months as this travelled through the lower house very slowly, and I am sure they would be very willing to see this progress today.

In the spirit of that willingness, I am somewhat attracted to Mr Kandelaars' amendment, but I certainly am not at all attracted to the amendment that was made by the member for Newland in the other place. That amendment sought to address a problem he raised in the course of that debate. The problem he identified was that a constituent of his who had lost their parents then wanted to track down their biological parents but had been unable to get that information.

In between Mr Kenyon first raising this issue in the other place and then concluding and moving his amendment, in fact his constituent was able to locate that information. It was simply that the file had been more difficult to track down through the particular provider than she had first hoped would be possible. The information was there. It was collected and kept by that provider and she was provided with the information about her biological parentage. In fact, the amendment seeks to solve a problem that does not exist because this information is already recorded.

Earlier today, I filed an amendment that came out of consultations with the member for Newland, Labor members, crossbench members and Liberal opposition members in the discussion we had in a meeting on Wednesday the 24^th, in the Constitution Room of this place at 1pm, when we sought to come up with a compromise position. I did indicate to those members that I was going to be bringing this to a vote on this sitting day of parliament.

The compromise position I put to Labor members then was that we were trying to solve a problem that did not really exist, except we could streamline the process for those people who found themselves, as Mr Kenyon's, the member for Newland, constituent did, grappling with the fact that we do not have a centralised database for this information. In fact, the reason we do not have a centralised database is not through any legislative impediment. Indeed, tomorrow the Minister for Health could be keeping these records in a centralised way should he so choose.

My amendment therefore took up Mr Kenyon's concern and sought to compel the Minister for Health to keep this register, as he has been able to do since 2012. That amendment is not acceptable to the Minister for Health. I put it to the Labor members of this place and, indeed to the government, that they could solve this problem overnight without it coming before this place in the form of an amendment should the Minister for Health be willing to keep those records in an appropriate way.

However, I do accept the Minister for Health's concerns, and I share them, that we are currently undertaking a review of the Assisted Reproductive Technology Act. In that review we may actually see a recommendation that runs contrary to the discussion we are having right now. I am very attracted to the argument put forward by the Hon. Stephen Wade that, in fact, this information should not be collected and kept by the Department for Health or the Minister for Health but, indeed, by births, deaths and marriages. So, certainly I would be hoping that there might be some recommendations around that.

With that, I simply say that I circulated what I hoped would be a compromise acceptable to the minister who is charged with keeping these records and who has chosen to let the individual companies keep them separately, rather than through a centralised database. I had hoped that my proposed amendment, which I do not intend to move this evening but simply file for the information of members here in this place—

The Hon. R.I. Lucas: You're not moving yours?

The Hon. T.A. FRANKS: I am not moving mine, no. I simply wanted members to see that I had tried to come up with a compromise through the language, by simply changing one word in the act—that one word being 'may' changed to 'must'. The minister can already do this; it is just that the minister has chosen not to do this.

We are seeking to solve a problem that does not exist and we are coming up with more and more compromises. I would say that we are coming up with more and more compromises because these are same-sex couples. That is why we are compromising here, and we should not be compromising these children who are waiting to have both their mums on the birth certificate any longer.

With that, I am somewhat attracted to the least worst option of Mr Kandelaars' amendment, but I am certainly not attracted to supporting the member for Newland's amendment at all, and I have made that quite clear to him. I note also that in moving his amendment he did not talk to the mover of the bill in the other place, the member for Unley. He did not talk to me prior to introducing his amendment in the other place. He did not seek clarification from us, because both of us would have told him that you already have the ability to access this information you seek to make it possible to access.

The Hon. R.I. LUCAS: This is argued by some to be a relatively simple matter; for some of us, it is extraordinarily complex and complicated. This is a little bit of a sorry history in terms of its passage through this house. As I think some members will recall, the vote was called on during the dinner break. I opposed the original legislation, as the mover knows, and called divide, but those who were going to support me were off at dinner; they had guests, etc. It has had a sorry history in that respect; I am sure it has had a sorry history in other respects as well, but it has in terms of the parliamentary process.

I was just checking again where this had got to for the House of Assembly from my viewpoint. Let me confess that I respect the fact that the Hon. Tammy Franks has invested in this particular piece of legislation for the reasons she has outlined and has therefore followed it much more closely than many of the rest of us. I received an email from the Hon. Tammy Franks on 19 February, which I assume was soon after the debate in the House of Assembly and which indicated that she was wanting to, in essence, bring it to a conclusion, a consideration, when we reconvened, this week I guess it was.

I assumed from that that her position was that she was just opposing the position of the member for Newland, which had successfully passed through the House of Assembly. I had seen some brief media reports in relation to that. As I said, my position was that I opposed the legislation. For a variety of reasons, people whom I thought might have shared that view either were not here or actually supported the legislation, and that indeed was the case in the House of Assembly, which surprised me—some people actually supported the legislation. The majority of members are supporting it. I accept the democratic expression of those wishes in terms of the majority.

I assumed from 19 February onwards that the Hon. Tammy Franks' position was just to oppose the dastardly deeds of the member for Newland in the House of Assembly and that that was essentially what we would be voting on, but in the last 24 hours or so—perhaps it was early today or late yesterday, I cannot remember—and certainly at some stage I think maybe during question time, the honourable member indicated the nature of the amendment that she was moving.

I had not seen her draft amendment. It is listed as 1.42pm, but I probably did not see it until question time or after she had mentioned the fact that she was changing one word—I think it was 'may' or 'must', or 'must' or 'may'—and I did not have a chance at that stage to go through the import of what the member was indicating.

Certainly, the position I expressed together with others in our party meeting earlier today was that my preference was that this matter be adjourned and discussed at a later stage. I nevertheless respect the fact generally that private members control their motions. Wherever possible, I respect those wishes and the honourable member has indicated she wanted to proceed to a vote. As I said, I thought at that stage that it was relatively simple and we were either on the side of the dastardly member for Newland or we were against the dastardly member for Newland in relation to this particular issue.

At 1.42pm or soon after that there was the amendment from the Hon. Tammy Franks, which I understood was her position. Then, late this afternoon at 4.55pm, and I did not see it until 5 o'clock or something, the Hon. Gerry Kandelaars plonks on the table another amendment.

I assume that the Hon. Gerry Kandelaars' position was different because he did come from the north-eastern suburbs and he was in the sort of general direction of the member for Newland in days gone past, although his philosophical directions and factional allegiances have moved somewhat away from the member for Newland as a result of various things at various times. On some things he seems to be with him and on others he is against him, but put that to the side.

I was not sure where the Hon. Gerry Kandelaars was coming from, but I thought we were confronting an amendment from the Hon. Tammy Franks and an amendment from the Hon. Gerry Kandelaars. Now the Hon. Tammy Franks makes it clear that, while she has filed the amendment, she is not supporting her amendment; she is now supporting the Hon. Gerry Kandelaars' amendment.

The Hon. Mr Wade is obviously aware of with whom discussions have been had. I was not and that is why I asked whether or not this was an amendment that had been agreed by the member for Newland, because genuinely I had no idea from whence the Hon. Mr Kandelaars was coming. I understand it is now a negotiation or a settlement between the Hon. Mr Kandelaars and the Hon. Ms Franks.

The Hon. T.A. Franks: No.

The Hon. R.I. LUCAS: No? Sorry, the Hon. Ms Franks is going to support the amendment being moved by the Hon. Mr Kandelaars and he has negotiated with persons unknown from either this house or another house, I am not sure. I am sure it is not just his own work in terms of this particular amendment. So the dilemma in my position is, as I said, I did not support the legislation in the first place, but it is clear now we are not going to be voting on the Hon. Tammy Franks' amendment, we are actually just voting on the amendments from the Hon. Gerry Kandelaars. Mr Chairman, will you be putting the questions separately—amendment No.1 and amendment No. 2 separately?

The CHAIR: They will be separate.

The Hon. R.I. LUCAS: In relation to amendment No. 1, the Hon. Mr Kandelaars and persons unknown are moving to accept the amendment, 'agrees with the amendment made by the House of Assembly with the following amendment', which he has outlined and then he makes a following consequential amendment in terms of the commencement of the particular provisions in the legislation.

So, for someone from my viewpoint who actually opposes the legislation, I am left in a quandary. I have never abstained on a vote before to my knowledge in over 30 years—I think there may have been a distant occasion but I cannot remember it if there was a case—but in this particular case I am caught 'twixt and 'tween and that is, as I said, I oppose the actual legislation. I do not know whether or not I have a problem with the Hon. Mr Kenyon's amendment. I certainly have very little idea in relation to the impact of the Hon. Mr Kandelaars' amendment, given we are going to have to vote on it.

The only position I may well be able to adopt is in some way to allow the debate to continue further so that there will be potentially another opportunity, because I am not sure what the views of the majority of the House of Assembly will be to this position. It may well be that the Hon. Mr Kandelaars is aware that this might be acceptable to a majority in the assembly—I am not sure—and there might be that opportunity.

I outline on the public record my quandary. I reiterate my position; that is, I oppose the legislation for the reasons that I outlined originally. I accept the majority view has now progressed the legislation. I am not attempting and do not intend to filibuster, but I put on the record that I am in a genuine quandary now that I understand where we are up to, having not had the chance to discuss with anybody the Hon. Mr Kandelaars' amendment which gets plonked on us literally in the last half hour so.

I really do not know the full impact of that, but in listening to the remaining debate on this I will see whether there is some opportunity to further the movement of the bill between the houses which might allow further reflection from some of us who are still wondering what the impact of the Hon. Mr Kandelaars' amendment might be, and whether it is any better or worse than the dastardly deeds of the member for Newland in terms of the amendment which he moved and which passed through the House of Assembly.

The Hon. D.G.E. HOOD: Family First's position is fairly straightforward. We opposed the bill originally and we will continue to oppose it. With respect to the amendment we are dealing with at the moment, I think the Hon. Mr Lucas has outlined it well. It is very difficult when you get an amendment at 4.55pm to even consider it. I have not read it in its entirety. In fact, I suspect that few people in the chamber have read it in its entirety and certainly have not had any time to consider it. For that reason alone, I cannot support an amendment that I do not understand. I guess that leaves us in the position of supporting the member for Newland's amendment to a bill we oppose.

The Hon. K.L. VINCENT: Just briefly, to put some of my thoughts on the record, I largely eschew some of the comments of previous speakers. Of course, I acknowledge that we only received this amendment in our inboxes an hour or so ago and I have been trying to wrap my non-lawyerly mind around it since then.

Given that I support the original bill in principle, I am inclined to support this amendment, particularly given that the mover of the bill says that she is willing to do so at this stage, if I have understood what she has said. So, if the mover of the bill does not object to the amendment and does not believe that it would interfere with what she is trying to achieve with the bill in any substantial way, I am inclined to support the amendment given that I support the general intent of the bill. However, as previous speakers have said, I am keenly aware that I do so as a very big compromise.

I like other members have been very much involved in trying to get the relevant minister or the relevant body, whether it be the Minister for Health or the births, deaths and marriages registrar, to actually commit to holding a central database. We already know that individual IVF clinics can and do record information with regard to the identity of biological parents. When there is not a centralised database for that information it can be very difficult to get it because the availability varies from clinic to clinic.

Certainly my preference would be that there would be a centralised database, whether that be held by the minister or the registrar, and certainly we have been doing some work in my office towards that. But, again, I feel that it is important to point out, as Ms Franks said, that really we are in some respects addressing a problem through this amendment that does not exist, or at the very least does not have to exist, given that the minister has had the ability under the existing legislation to hold this register since 2012. So here we are in 2016 and it still has not been done.

I am of course aware, as we all are, that there is a review going on and I certainly fervently hope, as do the people that my office has been working with and supporting, that one of the key recommendations that will come out of that review is that the minister must initiate and maintain a centralised database. In the meantime I am happy to support this as a compromise amendment but, as I say, I am very aware that it is just that: it is a compromise and we must continue to work towards the more holistic and respectful solution, which would be a mandated centralised database.

The CHAIR: If there are no further contributions, I will put the question that amendment No. 1 of the House of Assembly with an amendment and consequential amendment be agreed to.

An honourable member: Divide!

The CHAIR: Unfortunately, the Hon. Mr Hood was not in his seat and there was only one voice. I cannot do much about that.

The Hon. R.I. LUCAS: Point of order, Mr Chairman. On previous occasions when that has occurred you have actually called it again. Ultimately, it is an opportunity on a conscience vote for members to indicate their point of view. You have certainly, on precedent, done that. If you are going to establish this precedent—

The CHAIR: I will make that decision. I have already made a decision, but you are right. I think the fact that the Hon. Mr Hood is still in the room and he is prepared to support the division, I will call for a division.

The committee divided on the amendment:

Ayes 13

Noes 3

Majority 10

Amendment No. 1 thus carried; amendment No. 2 carried; motion carried.

Sitting suspended from 18:05 to 19:47.