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House of Assembly - Fifty-Third Parliament, Second Session (53-2)
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Bills

Family Relationships (Parentage Presumptions) Amendment Bill

Second Reading

(Continued from 29 October 2015.)

The Hon. T.R. KENYON (Newland) (16:38): It is an interesting experience to come back to a speech that you made in October, ma'am, but we will see how we go.

The DEPUTY SPEAKER: It's all coming back to you.

The Hon. T.R. KENYON: That's right, it is all coming back to me now. The point I was trying to make is that my particular concern about this bill is to ensure that there is an accurate record of someone's personal history so that, at a later point in life, they can come back and fully understand that history.

How deeply they choose to go into that is, of course, a matter for them at a later time, and probably for all those others involved in that chain. I was highlighting to the house a constituent of mine who came to see me who was the result of a fertilised egg that was donated to a couple who were otherwise infertile and they were able to carry her to term, obviously—she was born. She was 16, and the mother who gave birth to her had since died, but the records of the donor parents for the fertilised egg (or the embryo I suppose it is at that point) had been lost or were not complete. So, there was some history; she knew she had, for instance, twins who were siblings of hers biologically, but she was finding it very difficult to get hold of the records relating to the identity of the parents. At this particular point, she was keen to get in contact with them, and she would have liked to have met her siblings, but was finding it very difficult to do so.

Since October when I was talking about that, it turns out she has made some progress on that and they are in the process of contacting each other and making those very tentative first connections. But the difficulty that she had in that situation highlighted to me the dilemma faced by children when they become adults and wish to know their full history. Up until this point, any one of us really in this chamber can go through a fairly comprehensive set of records for the most part, right back through generations, in some cases many hundreds of years, and trace their lineage. There will be a gap in that history for some people—for a very small group of people, admittedly—because of the advances of technology, particularly in the eighties, in vitro fertilisation and such—

The Hon. S.E. Close interjecting:

The Hon. T.R. KENYON: Yes, and let's not forget the error rate, as the Minister for Education has pointed out, in the record due to infidelity and other instances of let us just say 'errant behaviour' that may corrupt the official record. Of course, no official record is ever perfect, but where we can—and remember for the most part we are making very deliberate decisions, with in vitro fertilisation and all these sorts of things, about the conception of a child. It is not, as is sometimes the case in other relationships, a random event or an accidental event. You are paying a lot of money and taking a lot of time and it is actually, from my observation of friends who have gone through it, a very unpleasant experience. So, these are deliberate decisions, and we are able in that case then to have much better records, not necessarily complete records of course, but much better records, and that will be of some use to the children and then adults who seek to go back and find their complete histories.

With that in mind, I have an amendment which I initially filed in October—I have since withdrawn it and refiled it in an amended way which we will get to, obviously, in the committee stage—which seeks to record the biological parentage of the children involved. In the first instance—obviously we will go into greater detail in the committee stage—it will seek to record the biological information on the birth certificate until we have set up—under the Assisted Reproductive Technologies Act, there is a provision for the minister to set up a register. Eventually and hopefully a minister will get that done, and I am hopeful that that will happen as part of the review of the act that is currently underway. On the day it comes into operation, this amendment I will be putting forward will cease to operate, so those provisions for the ability to record the biological history of a child for their later use—hopefully not medical use, but possibly—will come into operation then.

Mr PEDERICK (Hammond) (16:44): I rise to make a few comments in relation to the Family Relationships (Parentage Presumptions) Amendment Bill 2015. I must say at the start of my contribution, a lot of bills and legislation go through this place and barely get a whimper out of your electorate, but certainly in relation to this bill, I got far more than a whimper.

An honourable member interjecting:

Mr PEDERICK: Yes, I got far more than a whimper, and certainly not just from my electorate, but people who contacted me from right around the state to share their thoughts and deep beliefs. It is no secret that I come from a conservative background and I represent a conservative electorate, and that is exactly the way I will be voting with regard to this bill.

I must say that is how 100 per cent of the people who lobbied me in respect to this legislation wished me to vote, so I am more than happy to abide by their wishes—and I reply to every individual, whether they are in my electorate or not—with regard to this legislation.

This legislation gives a couple—two women—the right to have their names on the birth certificate. Some people have a child, and some people may say, 'Well, that makes things more equal.' But, I think it also brings about some problems with regard to a child having the ability to track their genealogy later in life. I think that is one of the main reasons that birth certificates are something we really need to be very careful about. I have just had a brief look at the amendments that the member for Newland has tabled, and I am still not convinced that that is the way to go.

Certainly, it did arouse debate in the seat of Hammond, and it was all one way. It did surprise me a bit that not one person, either in the seat or in the state contacted me in support of this legislation. I certainly think that the right thing to do is to support those who lobbied me, and, accordingly, I indicate that I will be voting against the legislation.

The Hon. P. CAICA (Colton) (16:46): I will not keep the house for very long at all. I am very pleased to be speaking today, particularly following the introduction of a bill by the Premier which is going to address aspects of inequality within our community.

Madam Deputy Speaker, you, like me and some of the other people here, often go to citizenship ceremonies, and it is one of the best things we do. I—as I am sure you do as well—stand up there and not only congratulate those people on becoming Australian citizens, but say to them that in Australia we live under the rule of law, and everyone is equal under that law.

Upon reflection, in most occasions that is the case, but we have certain aspects of our legislation and our statutes that discriminate against people and not treat people equally under the laws that currently exist. Some might argue that in this bill that we are discussing today—the Family Relationships (Parentage Presumption) Amendment Bill—we are applying what was essentially a mistake when it was first introduced in 2011. That may well be the case, but by introducing this bill it gives us the opportunity today to address the shortcomings that exist.

For the people on our side of the house, this is a conscience vote. Certainly, my conscience tells me that any aspect of the statutes in Australia and South Australia that we are responsible for which have provisions that discriminate against people need to be addressed. That is why I am also very pleased, not only with the Premier's introduction of a bill today, but with the agenda that is being set for the rest of this parliamentary year to address other aspects of South Australian laws that clearly do not have, as their basis, an equality before that law.

In essence, this bill is about making it available for people to put their names on a birth certificate, irrespective of whether they have lived together for three out of the four years prior to conception. That seems to me to be a very good thing to do. I am very hopeful that this bill will get up today; it has been a long time coming. It is not very often that we debate bills over a couple of years like we have done for this particular matter. I urge everyone in the house to vote with their conscience, and, in doing so, make sure that they are a part of addressing some of the existing shortcomings within our legislation that does not treat people as equals.

Mr PISONI (Unley) (16:49): I would like to first of all thank all those who contributed to the debate. I have to say that I am a little bit surprised that we are still here debating it. I do not mean to be derogatory to my colleagues in the upper house, but when the upper house can do things more efficiently than the lower house, I think it says something about a situation.

Of course, the house is very aware of my views on this matter. I just want to remind members that we are voting on one thing here, and one thing only, and that is, to remove a discriminatory measure in the existing act that only affects same-sex couples. There is a mechanism to deal with this for heterosexual couples, but there is no same mechanism to deal with this for same-sex couples. We know in practice that there is more onus on same-sex couples to actually comply with the three-year rule than there is with heterosexual couples to do that.

It does affect a very small percentage of South Australians, but we are the only state that still has this provision. Despite what people have been speaking about—about the rights of the children to know who their biological parents are, or what the accepted description of a family is, or what the modern family looks like—none of it is relevant in this bill, because this parliament has already decided that it is fair and reasonable that same-sex couples have the same rights as heterosexual couples in regard to the non-biological parent appearing on the birth certificate. The only difference is that there is a qualification of three years that affects only same-sex couples, and this bill is here to address that.

I urge members to bear that in mind when you are voting on this bill. You are not changing anything other than removing what I would describe as an oversight when the bill was first passed, close on four years ago now. We are removing that unintended consequence of perhaps not examining the bill in a bit more detail at the time and trying to understand if there were any additional consequences to the changes that were made. I urge members to view this as simply picking up or completing business that was started four years ago. It is nothing new, other than the removal of a three-year clause that only affects one section of the community and treats them differently.

The house divided on the second reading:

Ayes 29

Noes 12

Majority 17

AYES
Bedford, F.E. Bell, T.S. Bignell, L.W.K.
Brock, G.G. Caica, P. Chapman, V.A.
Close, S.E. Cook, N. Digance, A.F.C.
Duluk, S. Gardner, J.A.W. Gee, J.P.
Goldsworthy, R.M. Griffiths, S.P. Hildyard, K.
Hughes, E.J. Key, S.W. Marshall, S.S.
McFetridge, D. Mullighan, S.C. Odenwalder, L.K.
Picton, C.J. Pisoni, D.G. (teller) Rankine, J.M.
Sanderson, R. van Holst Pellekaan, D.C. Whetstone, T.J.
Wingard, C. Wortley, D.
NOES
Kenyon, T.R. Knoll, S.K. (teller) Koutsantonis, A.
Pederick, A.S. Pengilly, M.R. Piccolo, A.
Rau, J.R. Snelling, J.J. Speirs, D.
Tarzia, V.A. Vlahos, L.A. Williams, M.R.
PAIRS
Weatherill, J.W. Hamilton-Smith, M.L.J.

Second reading thus carried.

Committee Stage

In committee.

Clause 1 passed.

Clause 2.

The Hon. J.R. RAU: To explain, there is an issue about the practical implementation of this. Leaving aside any other issues, there are practical issues. When the parliament was dealing with this bill last year, my amendment intended to give more time to the registrar to make preparations, should that be necessary. However, given that we are now in February and in three months' time we will be in June, this does not really have a lot of work left to do, so I am completely agnostic as to whether it goes through. It is possibly better, actually, if I do not proceed with it at all, so I withdraw it.

Members interjecting:

The CHAIR: Order! We are looking at Amendment No. 1 to clause 2 standing in the Attorney's name, which is being withdrawn. Is that correct?

The Hon. J.R. RAU: Correct.

Clause passed.

Clause 3 passed.

New clause 3A.

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

Amendment No 2 [AG–1]—

Page 2, after line 12—Before clause 4 insert:

3A—Amendment of section 10B—Application of Part

Section 10B—after subsection (1) insert:

(2) Despite any other provision of this Part, the amendments to this Part effected by the Family Relationships (Parentage Presumptions) Amendment Act 2015 only apply in relation to a fertilisation procedure carried out after the commencement of that Act.

Again, as much as anything else, this new clause is trying to take some consideration of the practical consequences of the passage of legislation like this for those who are charged with the responsibility of administering it. This provision is intended to make it clear that in the future, if this amendment were passed and the bill were passed, it would be a prospective impact of the bill and not a retrospective impact of the bill.

The CHAIR: Everyone has got that?

The Hon. J.R. RAU: Unfortunately, the registrar is not a person who is either a political person or a person who is able to come in here—

Ms Chapman: You changed the registration on the instruction of the Premier two weeks ago.

The Hon. J.R. RAU: Can I finish what I was saying? From my point of view, the registrar is a person who is a public servant. They do not have a role in the political world and they obviously cannot come in here and defend their staff, their office and their requirements. However, I have some ministerial responsibility for the Registrar of Births, Deaths and Marriages. There is presently on a number of fronts a number of suggestions that the registrar should add this or that to the official record, and these requests are coming from multiple quarters. It has been my position and remains my position, and it is the reason for my particular opposition to this proposition generally at this point in time, that these things are all being looked at by the Law Reform Institute presently and we should wait until they have finished and done a comprehensive review before we start doing piecemeal moves.

That said, that is my primary objection to this proposition, but if we are determined to go ahead with this matter right now at a point in time when I believe it is premature because we have Professor Williams and his team working on these issues across the board right now—and, quite frankly, I think we would all do very well to wait until they have finished and have a good look at their report and then in a calmer, more responsible and enlightened environment decide what we are going to do. However, if the majority here does not accept the wisdom of that, and you may not, then I do not want there to be unnecessary additional burdens cast on the registrar, therefore I move this amendment.

Mr PISONI: I urge members not to support the amendment. My understanding is that John Williams has said that it is not necessary to wait, that these amendments are simply bringing South Australia in line with the rest of the country. When the presumption of parentage bill was first proclaimed there was no requirement for that only occurring for new births. In my understanding it was retrospective, so it is just a ludicrous situation to suggest that those same-sex parents who have children within a three-year period are treated differently to those same-sex parents who have children after a three-year period. I strongly urge those in support of this bill to reject this amendment.

Mr GARDNER: I have a question of the mover of the amendment going to the merit of the case set forward by the Attorney moving the amendment in that it would set too much of a burden on the registrar to go through the birth certificates of those children already born, in effect. When the Attorney had carriage of a similar matter in relation to Chinese adoptees three years ago in working with the registrar to have their birth certificates amended in as much as there were several hundred of them, did he consider that matter to be salient then? If not, why not? If so, why shouldn't it be fine here?

The Hon. J.R. RAU: I do not actually recall what we did or did not do in the context of the example that the member for Morialta has just asked. I frankly do not recall. That does not mean we did not do anything or we did not look into it; I just simply do not know. It was some time ago. As I said, to me, whether or not Professor Williams, as the member for Unley said, is prepared to wave his professorial arm and allow this thing to pass through is not the point.

Mr Pisoni: You raised it.

The Hon. J.R. RAU: No, I am telling you whether it has his imprimatur to go through is not the point I was trying to raise. The point was that he is doing a body of work which includes this and a great deal many other things which may go back into this space as well, and I think it is unsound for us to be doing this in a piecemeal fashion without seeing what the whole thing looks like. For that reason, I do not support this at this time, although when he is finished with his work and I have had a chance to consider what he has to say, I might take a completely different view. As I have said before, I am strongly of the view that we should have a voluntary register here, which is not the responsibility of the Registrar of Births, Deaths and Marriages to maintain, and it enables individuals to voluntarily—

Ms Chapman: Bring in a bill.

The Hon. J.R. RAU: I would like to but, again, the reason I have not done that yet is because I am waiting for Professor Williams; but I am strongly of that view, and I just put that on the record. I am trying to minimise the disruption of this, in my opinion, premature attempt to legislate in this space. That is it.

Ms CHAPMAN: I have a question for the Attorney. In light of his concern that we should be advancing this bill in the absence of having the complete report from the South Australian Law Reform Institute in relation to these matters, did he counsel the Premier against moving his bill—which relates to the first report from the South Australian Law Reform Institute, entitled 'Statutes Amendment (Gender Identity and Equity) Bill 2016'—today? The Premier told the parliament today (in fact, only an hour ago) that he was going to progress part of the recommendations of the Law Reform Institute in respect of this matter—and, if I can say so, I suggest the uncontroversial aspects, or as much as they can be in this area—of which there is a proposed bill to remove discrimination in respect of different genders in legislation.

If so, is he indicating to the parliament that he accepts the progressing of that legislation, notwithstanding any advice to him to the contrary—it might be something to do with keeping a job, I do not know entirely how it works in the Labor Party. However, I make the point that his own Premier has today moved a bill to progress in the absence of the final report from the commission in respect of some of the matters on which they have inquired, and the more —

The Hon. J.R. RAU: I know you have asked a question; I get the question. The answer to it is very simple, and it is that in the instance referred to by the member for Bragg there is a report, albeit an interim report. I have read that report, I have sought advice from the crown about that report, and there have been discussions within government about whether every single element within the report is to be picked up without any form of modification or not. We have done our due diligence, we have thought about it, and I am entirely comfortable with that going forward, entirely comfortable.

Ms CHAPMAN: I have another question. Given that this bill was tabled in the parliament on 10 October 2015, if you did not make inquiry to inform yourself as to whether this was some due process that could be advanced, including whether the Law Reform Institute had any view on the matter, why not?

The Hon. J.R. RAU: My view is that they are doing a piece of work, they going to provide a report. I want to see the report before I am comfortable in addressing this issue in a piecemeal fashion. I have already flagged to the parliament today, and before we had the conversation about this, that I think there is an obvious need for a voluntary register here where people can actually go through certain formalities and do things for themselves. I am expecting that Professor Williams' report will address that matter in some way or another—I would be surprised if it did not—but I would be interested in what he has to say about that as well.

My preference would be that we do not deal with this at all until we have that information from the Law Reform Institute. I think it should be allowed to finish its report in its own good time and do it as thoroughly as it needs to.

Ms CHAPMAN: One more question. Given recent events during January, I think, when the Premier approached the Registrar of Births, Deaths and Marriages to attempt to deal with what was identified as a very tragic situation—namely, the recording on the certificate of a person who died in South Australia that they had never been married (I think the words inserted were 'never married') when there had been a lawful, same-sex marriage solemnised in another jurisdiction overseas, which obviously added to the hurt of the surviving partner—did he obtain legal advice as to whether it was available to the Premier to instruct or request the Registrar to change the certificate?

The Hon. J.R. RAU: We are getting hideously distant from the matter before us. Anybody with any compassion at all would sympathise deeply with the circumstances that gentleman was placed in. What the Premier did in relation to that is a matter that you should ask him about; but let's try to get back to the bill in front of us.

The Hon. S.W. KEY: I am trying to understand the logic of the amendment from the Attorney. On one hand he is saying that we should wait until we have further information from Professor Williams. I can understand that argument, but what he is suggesting in this application is that we have a date, to be determined, for when this information can be made available. I think he is actually arguing against—excuse me saying this, Attorney—the logic of what he has put forward.

Coincidentally, today I was very pleased to attend a briefing session on work that we are doing with regard to the regulation of assisted reproductive treatment in South Australia. One of the points that was made is that we still, as from direction in 2010, do not have a donor register established, and this is going to cause a lot of problems, particularly if we have a review that perhaps modernises itself with regard to assisted reproductive treatment that maybe looks at the Victorian model in this area and some of the changes that have been made in Western Australia.

As everybody in the chamber is aware, not everybody lives in a nuclear family anymore, with a picket fence at the front. We have a whole lot of different blended families. We have people who come from different cultural backgrounds who do not have access to information. We have new arrival and refugee people who do not have any paperwork or information. We have Aboriginal communities—urban as well as remote Aboriginal communities—where people still do not have a birth certificate. I think we need to bear in mind that we have a community that is very varied and we need to address all of these issues. I think putting a stopper on when people can be recognised as having parentage responsibilities at this time is premature as well.

Mr GARDNER: The Attorney's amendment, as I understand it, means that is prospective and not retrospective, that it only would apply to births from the passage of this legislation. When this bill passed in 2011 it was, by the definition that the Attorney is suggesting, retrospective: it applies to everyone equally, including people in the past. If this amendment passes, then as far as I can tell this will become the only instance where, under the births, deaths and marriages registration arrangements, someone is entitled to have both parents listed, whether they be adoptive parents or people of this arrangement.

It will be the only circumstance where whether or not they are entitled to have both their parents listed depends on the date on which they were born. It will be the only time when two categories will be on children's birth certificates. Can the Attorney clarify if that is correct, whether there are there any other categories of people with birth certificates whereby their parents being listed or not depends on whether or not they were born before or after passage of legislation?

The Hon. J.R. RAU: Off the top of my head I cannot, but obviously there have been amendments to the births, deaths and marriages legislation over time. Those people who were born before that moment in time clearly were not affected by the amendment and those people who were born after were.

Mr Gardner interjecting:

The Hon. J.R. RAU: Yes; so, clearly, there is a series of points in time. I say again: I am not saying to the parliament (not that my personal opinion matters in any particular way) that I personally think there is no way we should take steps in this space; that is not what I am saying. I am saying that now is a premature time to be doing it in the context of all the investigations that are going on, and I do not want to half do it. I indicate I oppose the bill, but if we have to do it, I want it to be as least disruptive as possible. That is all.

New clause negatived.

Clause 4.

The Hon. J.R. RAU: I believe my amendments to this clause are consequential and, therefore, they are now no longer relevant.

Mr KNOLL: I have three questions on clause 4. Throughout this debate, it has been suggested that the three-year relationship requirement is something that only applies to homosexual couples. When I look at where this clause is going to be inserted, and that is section 10 of the Family Relationships Act, section10A, Interpretation, talks about a qualifying period and states:

qualifying relationship means a marriage-like relationship between 2 people who are domestic partners (whether of the same or opposite sex).

To me, that suggests that this clause, as it is written in the current Family Relationships Act, is designed to be one that applies to both heterosexual and homosexual couples. Is the issue that I am getting something wrong with the legislation, or is it simply an issue to do with how the registrar of births, deaths and marriages implements the legislation? If it is the case where only homosexual couples are required to provide evidence of a three-year qualifying period, does that not suggest that the legislation is not flawed, it is actually the enforcement of that legislation by the registrar that is the issue?

Mr PISONI: I think the offending section of that clause is the fact that the effect is that, under current Australian law, a heterosexual couple can circumvent the three-year qualifying period by getting married and, of course, a homosexual couple cannot do that. It is on that basis that it is discriminatory, and that is why we are removing that in this amendment bill.

Mr KNOLL: Certainly, the member for Unley is right in the answer he just gave in terms of heterosexual couples either having a biological child or getting married as two ways to get around the three-year qualifying period, but where there is a non-biological father, for instance, in the case of a heterosexual couple, they would also have to do deal with this requirement. I suppose that is the basis for which I suggest there is not necessarily legislative discrimination.

My second question is based on the following scenario. We have a couple who meet, and let's say they have been together for six months and then decide to have a child. Let's say they are two lesbian women, and one decides to become pregnant via whatever means. That child is conceived and then post that child being conceived but before that child is born, the couple break up and no longer have a relationship. My question is: in that instance where there has been a separation of the couple post conception but prior to the birth, are there still rights and obligations upon the non-biological parent after the child is born? What happens in that instance?

Mr PISONI: My understanding is this amendment to deal with that part of the act does not change the law as it stands now in regard to any relationship. The scenario you have described could be a longstanding relationship, it could be the relationship of a heterosexual couple or it could be the relationship of a same-sex couple. The problem with this legislation as it stands, without the amendment bill, is that it discriminates against one section of the community compared with all other members of the community, and this is what the bill that we are debating today seeks to remedy.

You could easily have a situation where a couple have been together for some arbitrary qualifying period, and it seems very strange that we have the law making moral judgements on how long people can actually be a couple before they make plans or before they actually participate in a certain activity in their family to be recognised by law. As a Liberal, I just find that offensive.

The point I am making here is that they too could have a situation where they have been together for more than three years and, by the time the baby is born, there could be a different partner. Whatever happens in that situation will continue to happen, if this amendment bill is passed.

Mr KNOLL: I have a third question. If you are married and you have a child, it is presumed that the married couple are the mother and father. If they conceive a child while married and get divorced, it is assumed that the father is the father and the husband and wife are then on the birth certificate.

In an instance where two people conceive naturally, most of the time the father comes forward and they are in a relationship together, or even not. The two biological parents, regardless of whether or not they are then together post-conception, go on the birth certificate. In this instance, we have a non-biological parent who is in a relationship, but there is no biological connection, so my question is: will the non-biological parent still be on the birth certificate if, post conception, they decide that the couple are no longer going to stay in a relationship?

Mr PISONI: I think this is virtually the same question I was asked previously, and the answer is: the effect of the amendment will be the same as it is for those couples who have been together for three years or longer while having a child through assisted reproduction, with only one of those parents being a biological parent. This does not change anything, other than remove any qualifying period for there to be recognition that a non-biological parent is entitled to be on the birth certificate.

The Hon. S.W. KEY: In relation to that particular section, I would just say to the member for Unley that I think there is precedent for the question he has just been asked by the member for Schubert. When a child is born with two biological parents and one of those parents ends up not being the presumptive parent—they end up going away or dying or whatever—there is an opportunity for a parent or parents to adopt a child. So, the details that end up on the birth certificate are the details of the adoption, where the adoption of that child ends up being on the new document, as opposed to those of the birth parents.

I think part of the argument that most of us are on about—and I think the member for Newland actually agrees with this, as well as the Attorney—is that, where possible, we need to have a system where people can not only access their biological information and parents and have that right but also have parents, whom we are calling in this case 'presumptive parents', who are the ones who actually take responsibility.

As with heterosexual couples, as well as same sex couples, some people stay together, some people do not—there are all sorts of arrangements. As I said, because we live in a multicultural community there are a whole lot of people who take responsibility as parents and carers in our community, and certainly in the Aboriginal community. We need to get over the fact that we are just discriminating at this stage against the qualifying period for a lesbian couple. I just do not understand why we need to do that.

This bill, I understand it, is to address that issue, and as things roll out with Professor Williams' reports there will be other areas where we will need to discuss our views on discrimination. Basically at the moment this is discrimination, so let's do something about it.

Clause passed.

New schedule A1.

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

Page 3, before line 13—Insert:

Schedule A1—Related amendment to Births, Deaths and Marriages Registration Act 1996

1—Amendment of section 14—How to have the birth of a child registered

Section 14—after its present contents (now to be designated as subsection (1)) insert:

(2) The birth registration statement must include particulars of the identity (if known) of the biological parents of the child.

(3) The fact that a person is described as a biological parent of a child in a birth registration statement in accordance with subsection (2), or in an entry about the birth in the Register—

(a) does not constitute an acknowledgement of parentage for the purposes of the Family Relationships Act 1975 or any other law; and

(b) does not otherwise operate to make that person the mother or father of the child for the purposes of any other law.

(4) In this section—

biological parents, in relation to the birth of a child, means—

(a) the person who provided semen resulting in the birth; and

(b) the person who provided the ovum resulting in the birth.

(5) Subsections (2), (3) and (4) expire on the day on which the donor conception register is established under section 15 of the Assisted Reproductive Treatment Act 1988.

Originally I filed amendments in October last year that required that the biological parents be recorded as well, so there was that biological record for children to follow back through if they chose to do so at some point in the future. The technicality here is that I have withdrawn that amendment and replaced it with a new amendment that does exactly the same thing but ceases to operate when the register in the Assisted Reproductive Treatment Act is in place and operating. So on the day that register is operating, then this amendment ceases to operate. For clarification, I have added an extra bit into my amendment to satisfy that. There are two sorts of amendments: I am withdrawing the first lot and putting in the second, which is exactly the same but includes a new subclause that ceases the operation of that amendment when the register comes into existence.

Mr PISONI: I have a question of the member for Newland: does it apply regardless of the type of relationship; for example, does it apply equally to same sex couples as to heterosexual couples?

The Hon. T.R. KENYON: Yes. It does not make any changes to the operation of the bill, other than to make sure that biological parents are recorded. For most couples, being heterosexual couples who are either married or in a relationship, to whom the great majority of children are born into this world, in that arrangement it will not make any difference anyway as that is how it is. It is an added requirement only to this group by way of circumstance more than anything else. It applies to everybody, but for most people they will be one and the same. My amendment does not discriminate against relationships or anything else or single out, but by circumstance it will apply to one group, but again, as I said, it will cease to operate once the register comes into existence, hopefully some time this year.

Mr GARDNER: Can I ask the mover of the amendment if it is his understanding that, if the amendment is included—and I am reading:

(1) The birth registration statement must include particulars of the identity (if known) of the biological parents of the child.

—what about the situation where the parent is known but would not normally be included on the birth certificate; for example, if it was the perpetrator of a rape?

The Hon. T.R. KENYON: In this case they would still be recorded. My view on that is that it is a very trying and difficult circumstance, but the purpose of my amendment is to provide some record for the child at a later point. Despite the circumstances of the conception, it may still be genetically relevant at some point in the future, and the child has a right to know.

The Hon. S.W. KEY: I understand and mentioned earlier the need, and I agree with the view that a child should have as much information as possible, particularly about their biological background, but I am just wondering whether the member for Newland would apply this to all circumstances of parenthood and birth certificates and why he would not introduce a private member's bill to make sure that this information was available for everybody.

The Hon. T.R. KENYON: I never gave it any great serious thought until this particular constituent I mentioned in my second reading speech came into my office and I went through the whole process with her of trying to locate her parents. I went through the difficulty with her of tracing those people, and that is what has changed my views in some ways and also given me pause for thought, and this was the first opportunity really. This bill was introduced at roughly the same time and gave me the first opportunity to come into it. I am happy to come back into the house with a private member's bill at a later point that brings that through. I think, however, that the register that is contained but not yet in operation in the Assisted Reproductive Technologies Act will take care of most of those.

In terms of adopted children, because there is a formal adoption process, that record is held formally as well, so that information, where it is known, is also held. So, there is a record for children (I say children who may be adults) to go back and find out their circumstances at a later point for adoptees. The application of technology since the eighties, in assisted reproduction particularly, has not really been addressed adequately by the parliament, and this is the first opportunity for that. I am happy to introduce a bill at some later point. I am not opposed to that at all.

The Hon. S.W. KEY: I guess my point is that, as much as I understand the logic behind all this, it would seem to me that it would be more appropriate, instead of choosing this particular legislation to bring in that provision, and it would be better if that were happening on a general level, rather than with this specific bill that we have before us.

Secondly, I do think it is of concern that, since the regulation of reproductive treatment in South Australia goes back to September 2010—and I do not want to be too critical of the government because I know there are resource issues and all the rest of it—if we are serious about this issue, we better get on and get this register organised and make sure that we have a review (and I am talking about having the assisted reproductive treatment review) that comes up with some sensible ways of dealing with this issue, rather than picking on one small bill to try to redress an inequality.

The Hon. T.R. KENYON: In answer to that, I understand the point the member for Ashford is making, and there is a fair bit of validity to it, but this bill is before us now and I think there is something in it that can be improved, and that is the point of the amendment.

Ms COOK: I have just something very small to add to the debate within the frame of what the member for Ashford has said. What you are saying, member for Newland, is that this would only work if you know that you are adopted. I want to make the point that I actually did not know that I was adopted until I was nearly 30 years old. My parents have both passed away now, and if not for the chance of walking past a telephone and answering it would I have even known I was adopted. So, it does not actually make any sense really, to be quite honest, in the context of this debate.

Mr PISONI: Member for Newland, I am just wondering if you are able to clarify whether your amendment gives the biological parent any rights over that child or the right to know who that child is, even if it might not be in their interests—for example, if they are the child of a rapist.

The Hon. T.R. KENYON: There are certainly no rights to paternity. I think that is spelt out in the amendment. Subsection (3) states:

(a) does not constitute an acknowledgement of parentage for the purpose of the Family Relationships Act 1975 or any other law; and

(b) does not otherwise operate to make that person the mother or father of the child for the purposes of any other law.

So it does not give them any parentage rights and it does not seem to give them any right to know either. I outlined to parliamentary counsel exactly what I wanted and I have relied heavily on their expertise on that—but I do not think it gives them any right to know whatsoever. The reason for recording this is the ability of the child at some point later to understand their full history—that's it.

Mr GARDNER: Can I make a comment on the amendments?

The CHAIR: Sort of; we are being pretty lenient.

Mr GARDNER: My view is that I think this amendment strays somewhat further than the member for Newland intends in that it does, in fact, apply to the act more broadly, not just to those children who are going to be impacted by the bill that we are dealing with today; not just by those children who will be impacted by the three-year rule—this applies to the whole act.

In having the child registered in this way, as far as I can tell, the circumstance that I suggested before, or the member for Unley suggested before, would be changed for all children who are born under that circumstance as far as I can tell from this amendment. I think that what the member for Newland is hoping to achieve I have absolutely no objection to. I am just not sure that this amendment is the best way to do it. I think that, as the member for Ashford suggested, it would be better dealt with by a new private member's bill.

For the record, the birth certificate does not constitute a perfect genealogical biological record in this state; it has not for a long time. Parents are listed where the father is perhaps not the biological father in a whole manner of cases. There are parents listed of adoptees who are, of course, not biological parents. This is not an item of perfect record at the moment.

The ill that is being sought to be addressed by the bill will be fixed without this amendment. This amendment might potentially construe new ills that are unintended. Certainly I impute nothing onto the member for Newland's motives in any sense; I am certain they are completely genuine, but I do not think that I am comfortable supporting this amendment if it goes to the impact that has been suggested. I would not want a child born in those circumstances to have that on their register in that way.

The Hon. T.R. KENYON: I understand the point that the member for Morialta is making. I would say that if it is in fact—and he may have a point—that it is spread right across the act I still do not think it is necessarily a bad thing for children to know their full biological history, however that came about. I know that it would be uncomfortable for some people in some instances but, at some point, it is good for the child to know that and, again, it may have at some point a medical or genetic use. Even if the point that the member for Morialta is making is correct I do not see it necessarily as an ill. Having said that, I do not have much more to add.

The committee divided on the new schedule:

Ayes 31

Noes 10

Majority 21

AYES
Atkinson, M.J. Bell, T.S. Bignell, L.W.K.
Brock, G.G. Caica, P. Close, S.E.
Cook, N. Digance, A.F.C. Duluk, S.
Gee, J.P. Goldsworthy, R.M. Hamilton-Smith, M.L.J.
Hildyard, K. Hughes, E.J. Kenyon, T.R. (teller)
Knoll, S.K. Koutsantonis, A. Mullighan, S.C.
Odenwalder, L.K. Pengilly, M.R. Piccolo, A.
Picton, C.J. Rankine, J.M. Rau, J.R.
Snelling, J.J. Speirs, D. Vlahos, L.A.
Weatherill, J.W. Williams, M.R. Wingard, C.
Wortley, D.
NOES
Chapman, V.A. Gardner, J.A.W. Griffiths, S.P.
Key, S.W. McFetridge, D. Pederick, A.S.
Pisoni, D.G. (teller) Sanderson, R. Treloar, P.A.
Whetstone, T.J.

Amendment thus carried; new schedule inserted.

Schedule 1 and title as amended passed.

Bill reported with amendments.

Third Reading

Mr PISONI (Unley) (17:50): I move:

That this bill be now read a third time.

I am very conscious of the time, so I simply urge members to support the bill. We have had plenty of time to debate the bill. This has been on the Notice Paper for more than three months now. It would be terrific if we could finish the day with it complete. Hopefully, that will be with the successful passage of the bill.

I would like to thank those members who have participated in the debate, regardless of their views. I think it is a terrific sign of a parliament that is working and a parliament that is debating important issues. Even though it may only be for a small sector of the community, it is still a very important issue to them and on that basis it is a very important issue to those of us in this chamber, because that is our job and our role: we are here to represent those in the community.

Bill read a third time and passed.

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