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House of Assembly - Fifty-Fifth Parliament, First Session (55-1)
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Bills

Assisted Reproductive Treatment (Posthumous Use of Material and Donor Conception Register) Amendment Bill

Committee Stage

In committee (resumed on motion).

Clause 5.

Mr TEAGUE: It is a pity, in a way, that time intervened. I was just concluding those observations about the approach that we take. There is a lot of meritorious reform going on here in the bill. This is one key area of principle about which there is no doubt that there is the application of some retrospectivity, a change of approach. We have a clear understanding that it is reflecting the change of view about what is the best way forward.

I do not think it is helpful for observations to be made characterising the amendment in terms of undermining the core characteristics of the bill. On the contrary, what I would emphasise is that the amendment is bringing along those who have, in good faith, in a range of different circumstances, more than 20 years ago participated in something that, yes, has certainly a public and regulated character but on terms that, with the best will in the world, were either in a mandatory way anonymous or were certainly facilitated in such a way that identity was not indicated.

To be clear again, the amendment is not about some sort of blanket nor is it about the withholding of important de-identified information that might assist in terms of health issues and the like. What it offers in substance is the opportunity for those who have been involved, when the landscape looked very different on certain terms, to take a closer level of understanding and investment in the process. That is against the background, we understand, of a high level of desire to engage—to do so—to move with these times that are characteristic of the reforms in the bill.

It is important to identify the opportunity that the amendment brings, and I certainly trust the outcome that results, with or without the amendment, might be near-enough identical. It is an important means of bringing along, treating with autonomy and dignity, all participants in a process that has a 50-year history at this stage, and brings us all along in circumstances of significant reform. It is with those words that I endorse the amendment, not so much as a compromise or a paring back of the reform but as a means of making the reform so much more robust and capable of assisting to create and enhance a healthy space within which all participants can go forward.

The committee divided on the amendment:

Ayes 15

Noes 24

Majority 9

AYES

Basham, D.K.B. (teller) Batty, J.A. Bell, T.S.
Cowdrey, M.J. Ellis, F.J. Gardner, J.A.W.
Hurn, A.M. Patterson, S.J.R. Pederick, A.S.
Pisoni, D.G. Pratt, P.K. Tarzia, V.A.
Teague, J.B. Telfer, S.J. Whetstone, T.J.

NOES

Andrews, S.E. Bettison, Z.L. Bignell, L.W.K.
Boyer, B.I. Brock, G.G. Brown, M.E.
Champion, N.D. Clancy, N.P. Close, S.E.
Cook, N.F. Fulbrook, J.P. Hildyard, K.A.
Hood, L.P. Hughes, E.J. Hutchesson, C.L.
Koutsantonis, A. Michaels, A. Odenwalder, L.K.
Pearce, R.K. Picton, C.J. (teller) Savvas, O.M.
Szakacs, J.K. Thompson, E.L. Wortley, D.J.

PAIRS

Speirs, D.J. Malinauskas, P.B.

Amendment thus negatived.

The Hon. C.J. PICTON: I move:

Amendment No 1 [HealthWellbeing–1]—

Page 5, after line 2 [clause 5(5)]—After inserted subsection (8) insert:

(8a) The Minister must establish and maintain written guidelines regarding the exercise of the Minister's discretion under subsection (8).

(8b) The Minister must ensure that guidelines established and maintained under subsection (8a) are published on a website determined by the Minister.

This amendment makes amendments to align the bill with the provisions of the Adoption Act 1988 to require further information in relation to the considerations the minister will make when determining whether to exercise discretion or not to disclose information from the donor conception register. There was a concern raised by a number of advocates in relation to the scope that the minister had in relation to making decisions of this nature. Obviously I am sure everyone had faith in my abilities as the minister, but people may have concern about a minister in 10, 20 or 30 years' time in relation to what they might do.

An honourable member interjecting:

The Hon. C.J. PICTON: That is right; it was not about me. So we have sought to provide greater assurance in that there would have to be the information of the considerations the minister will make in determining whether to exercise that discretion. Under section 15(8) information on the donor conception register can be restricted from disclosure if the information would be an unjustifiable intrusion on privacy, if disclosure would create a serious risk to the health, safety and welfare of any person or if the information is unreliable or misleading.

The amendment will require the minister to publish guidelines relating to the exercise of the minister's discretion, and these guidelines would be freely available on the internet. The amendment will bring consistency with the Adoption Act 1988 where under that act the chief executive of the Department for Child Protection may restrict disclosure of information pertaining to adopted persons in accordance with published guidelines.

I thank members of Donor Conceived Australia for raising this matter and for their ongoing feedback, involvement and support of the development of this bill. I endorse this amendment to the house.

Mrs HURN: I rise to indicate that we will be supporting the government's amendment.

Amendment carried.

Mrs HURN: Section 15(7) establishes penalties for ART companies who fail to provide information for inclusion on the register or they face a fine of up to $120,000. Minister, can you just talk us through how the government arrived at that $120,000 figure?

The Hon. C.J. PICTON: If we can get an answer between the houses, we will, in relation to that. My experience of these in relation to previous bills is that there will be a process whereby particularly parliamentary counsel or the various departments will look at similar clauses that apply elsewhere and try to arrive at what is an appropriate penalty provision for the section.

I presume that there would be consideration in relation to the fact that the assisted reproductive providers are quite big businesses and that these are obviously very expensive procedures that people go through, and we would try to get an appropriate penalty that would provide a deterrent in terms of making sure that those providers are compliant with the section. But if we can provide a more specific rationale between the houses, we will.

Mrs HURN: Just in relation to the verification of the information that is provided, who is the body that is going to be verifying the information? Likewise, who would be policing or administering the fine?

The Hon. C.J. PICTON: Thank you for the question. In relation to the first part of the question, firstly, the providers, the fertility companies themselves, have well-established procedures in relation to verifying information, as I am advised, and that is part of their responsibilities that they have through licensing and also the NHMRC guidelines that they operate under.

The department would obviously provide advice, both in relation to their administration of this act and also in terms of the licensing operations of ART providers. In relation to the enforcement action, should that hypothetically be required, that would be dealt with in a similar way to other fines appropriately prosecuted, which I understand would involve the Crown Solicitor's Office in this instance.

Mrs HURN: Minister, I refer to section 15(8)(a). Could you please give an example of a situation where the disclosure of information would 'be an unjustifiable intrusion on the privacy of the person to whom the information relates', and, likewise, if you wouldn't mind giving an example in relation to subsection (8)(b) as well.

The Hon. C.J. PICTON: This obviously relates to what we were saying in terms of we expect that this would be a very rare circumstance in which this would happen, and we want to provide an appropriate assurance to the house that it would be very rare, and also to the donor-conceived community, who would be seeking to make sure that it is rare. It is always dangerous to get into hypotheticals. We would potentially look at something like a protected witness, or something like that, where there might be a danger to that person of their identity.

As we said previously, this is something where we would also look at how it is operated with similar provisions in relation to the Adoption Act 1988 as well, where there have been well-established sections, and how they have operated over time.

Mr TEAGUE: Just back to subsection (7) for a moment, can the minister identify for the assistance of the committee the extent of consultation, if any, on subsection (7) in particular, and the responses and from whom and what was expressed by those responses, relating to those who might be on the receiving end of the penalty?

The Hon. C.J. PICTON: First, in relation to consultation, we consulted broadly in relation to the whole bill, not just subsection (7) that we are looking at here. In relation to subsection (7), though, we did receive feedback from the donor-conceived people and Donor Conceived Australia in relation to their concerns that there have been instances over time where there has been the destruction of records. They wanted to ensure that there was a penalty that was commensurate with that to make sure that there is appropriate deterrent to stop that from happening. That is something that the government believed was appropriate and hence we have put this provision in the bill.

Mr TEAGUE: I think that is actually a helpful addition to the record, with respect, in that that might provide some guidance to those who might be on the receiving end. It is a very different thing on the one hand to identify risk of or actual occurrence of destruction of records—that sounds like a negligent through to a malicious (call it what you like) kind of action. That is a positive act.

The trouble with subsection (7), as I understand it has been communicated to the government—and, again, I appreciate the minister taking any opportunity to provide any more particularised response about those responses that the government has received—the concern being raised, as I understand it, is that you have, on the face of subsection (7), a mandatory provision that the registered provider:

…must provide the Minister with information required by the Minister for inclusion in the donor conception register in the manner and form determined by the Minister.

That is as blue sky as you can possibly imagine—it does not even refer to the making of regulation subsequently—and then there is this $120,000 maximum penalty. Subsection (7) certainly conveys, full bore, the seriousness of the subject matter, and that might well relate to actions like destruction, and it might even extend to not responsibly keeping safe, that sort of thing.

The trouble is, with a provision that is a mandatory provision that is also couched in blue-sky terms, it leads to the analysis by those who would be committing the offence and paying the penalty circumstances beyond their control that their very concern in the real world might lead to them falling foul of the provision. Just one scenario is where, despite the best will in the world, the registered provider is just not able, not getting any communication from the recipient so they do not have the information, they do not have birth outcomes—the recipient is not in contact.

That is, as I understand, feedback that has been provided to the government about the practical problem. Therefore you have a provider who is seeking some sort of reassurance, and it ought not be surprising that a provider is saying, 'Well, how about at least best endeavours?' when it comes to taking positive steps that are required by the minister from time to time that are not articulated here, or, better yet, a prohibition-type provision that says you must not treat information with other than care and integrity.

As I say, what the minister has said already is of assistance, I think, for those who are contemplating what this means. Beyond making that observation, I just note that while it remains in a mandatory form and with a blue-sky remit for the minister, it is the source of serious concern for those registered providers.

The Hon. C.J. PICTON: I acknowledge the feedback and the concerns of the member for Heysen, and obviously he is welcome to amend or seek to vote against this clause if he wishes. It is the government's view that this clause is appropriate. It is, we believe, a prospective clause and it is also consistent with the fact that ART providers have very strict information and recordkeeping requirements already that are placed on them under the NHMRC guidelines, which they are required to comply with already as part of their licence from the minister. So people should be complying with keeping those records at the moment. We think this clause is appropriate.

Mr TEAGUE: Without adding a further question, that, too, I might say, with respect, is helpful in that there is a reference to existing NHMRC guidelines. It begs the question, I suppose: they are already there, so why introduce the possibility that any requirement of the minister could be super added to those and in a way that is less than clear on the face of the statute? I do not know that there is anything more that can be said at this stage, noting the risk of unintended punitive action. It might be a matter for further reflection by the government in terms of practice.

My next question is in relation to subsection (8), in line with the questions raised by the shadow minister. The discretion of the minister—that is, for the time being, to be exercised as an absolute discretion, albeit with the guidelines set out and published and so on—provides a kind of substituted means by which the minister can curate the landscape, on the face of it; and surely that has to be the case. You do not legislate in a vacuum. The minister has hesitated to enter into hypotheticals, but there must be a range of circumstances that have been thought about, if you are going to depart from the application of the new principle, in the broad.

It begs the question: why, for example, if you have an individual of the—we anticipate—rare kind who would have benefited from the amendment that was recently put and voted on, and you have got that possibility in subsection (8) for the minister to be the arbiter, do you not have the prospect of circumstances in which individuals will write to the minister and say, 'For goodness sake, here are all of my circumstances, they are personal to me, I have this sincere view, these are my life circumstances, please exercise your discretion in my favour,' and they may not be of that protected witness kind, but rather just plaintive cries from individuals with nowhere else to turn because they are otherwise now in a new environment that is the subject of these reforms on the whole?

Bear in mind that we are changing the landscape, and that has all these benefits and upsides and so on. But for that, let's say, small number, if this is what they have got to resort to, surely those are the sorts of communications that the minister is now going to be in receipt of and having to exercise a discretion on. I am not asking the minister to predetermine what the response is, but does the minister agree that it is quite potentially, quite likely, the same group of people who might have otherwise been those who would have interacted with the shadow minister's amendment?

The Hon. C.J. PICTON: The hypothetical that the member outlines, in which somebody is aggrieved and asks the minister to utilise this section, is entirely possible. Somebody could ask for that; it does not mean that it is going to be approved. I think the language of the section itself makes it quite restrictive in terms of the circumstances in which the minister can use that ability, plus we have now amended the section to add that guidelines will have to be put in place consistent with a similar section in the Adoption Act 1988.

The other key thing that I think is worth noting is that the act obviously has to be implemented and followed through in relation to the principles of the legislation, which are of paramount consideration in terms of the welfare of the children. That is obviously something that any minister will have to keep in mind in terms of any consideration of any decision under that subsection.

The CHAIR: Member for Heysen, this is your fourth question.

Mr TEAGUE: I do not know about that.

The CHAIR: I am being a bit more lenient. You have 38 days left.

Mr TEAGUE: We have certainly dealt, Chair, with some debate on amendments to the clause. I am, anyway, grateful for the call.

The CHAIR: I will remind you.

Mr TEAGUE: In the context therefore of those last two answers, just note that 8(a) sets the bar at 'an unjustifiable intrusion on the privacy of the person to whom the information relates' and (b) gives 'rise to a serious risk to the health, safety or welfare of any person.' Leaving aside (b), let's not forget (c), that it would 'be inappropriate because the information may be unreliable and misleading'. Leaving aside (b) and (c), before this legislation an unjustifiable intrusion would be the whole landscape that we have just dealt with and in large part moved on from.

So we are in circumstances where it is pretty much comprehensively unchartered what an 'unjustifiable intrusion' means. They are just two words. If someone feels that strongly that they are really not wanting that subjective matter, let's say, and it is a matter that is subjective as it is set out in the hands of the minister in terms of exercising the discretion, let's say the guidelines and all that, looking at it from the point of view of that individual who has their own reasons for feeling strongly about it, you cannot think of anything that perhaps someone might feel more strongly about than a view in these circumstances and hence the likely nature of the communications to the minister.

So I just say that that is what appears to be the relevant threshold test on the face of the legislation—an 'unjustifiable intrusion', whatever that means. Whatever assistance the minister is able to provide to the committee at this point is helpful but otherwise we are in territory where those are the words that are going to need to be navigated when the minister is presented with a requirement to exercise a discretion.

The Hon. C.J. PICTON: I reiterate my comments in relation to previous answers to this. I would also say, obviously, it is not for me to provide commentary in terms of statutory interpretation; however, I think—

Mr Teague interjecting:

The Hon. C.J. PICTON: You will be one day on the judiciary, member for Heysen, but not me, is what I am suggesting.

The CHAIR: We will need extra judges.

The Hon. C.J. PICTON: I am complimenting you for being on the bar. It is nothing but compliments.

The CHAIR: That is a compliment.

The Hon. C.J. PICTON: I am boosting your career.

The CHAIR: Or the kiss of death. One of the two.

The Hon. C.J. PICTON: That's right. Next time you go to the party room ballot, you can say, 'The member for Kaurna has got my back.'

In relation to the terms of the word 'unjustifiable', I think it would be not just the view of the applicant in this sense, the person trying to keep their privacy in relation to that information, but a broader reasonableness. I would argue it is the person on the Glenelg tram test, what somebody would regard as unjustifiable in that situation. Obviously, somebody who does not want their information released might have a particularly subjective view of what would be unjustifiable in those circumstances. The minister will have to weigh up what is reasonably unjustifiable in those particular circumstances.

The CHAIR: I note for the record that the second amendment proposed by the member for Schubert is not proceeding because her first amendment fell over.

Clause as amended passed.

Clause 6.

Mrs HURN: In relation to clause 6, 15B(3), could you give us an example of what type of information the minister might request from the Registrar of Births, Deaths and Marriages in relation to donors? For instance, if a donor has passed away what would happen to the register once you had found out that information?

The Hon. C.J. PICTON: This is something where I understand similar provisions are currently in place. While I have not had the pleasure of issuing such an instruction to the Registrar of Births, Deaths and Marriages, I understand the previous minister has one that is still active in requiring a series of information, and obviously including information such as when births are registered, so that the donor conception register can be appropriately updated with that information flowing through.

It would not require a notice for each specific information, but it would be as per what is currently in place, still active from the previous minister, a notice to the Registrar of Births, Deaths and Marriages to provide a flow of information as appropriate that needs to then connect with the donor conception register.

Mrs HURN: Just to seek further clarification, you would write a letter in the first instance and you would advise the flow of information would happen on a regular occurrence, i.e. at the end of the month, or would it simply be that every time a single piece of information is updated, whether that be a birth, a death or a marriage, that information would then be uploaded to the register?

The Hon. C.J. PICTON: I understand it is currently on a daily basis that that information is provided.

Mr TEAGUE: I am just wanting to check the structure of the act. I will stand to be corrected, but in new section 15D(2)—and subsection (1) as well; it probably relates more to subsection (1) than (2)—is an honest and good faith exclusion of civil and criminal liability. Having traversed the problems that might be associated with subsection (7) of the section 15 amendment, I just wonder whether there is any comfort to be provided to the registered provider by reference to subsection (1) and/or subsection (2).

To spell it out, there is a mandatory obligation in 15(7) that we have traversed, the subject of clause 5, and there is what might provide comfort in new section 15D(1) and (2), where you have honest and good faith conduct. Again, for the benefit of those providers and the committee, is that actually relevantly a source of comfort? Might providers who are honest and in good faith—who might, on the face of it, fall foul of subsection (7)—find some comfort there?

The Hon. C.J. PICTON: The advice I have is that that is 100 per cent accurate, so a gold star for the member for Heysen.

Clause passed.

Clause 7.

Mrs HURN: Minister, in relation to clause 7, section 16(2a), which is in relation to the keeping of documents, a similar question to the previous clause: how did you land on the penalty of $50,000?

The Hon. C.J. PICTON: I have a good answer to this one. It is consistent with the current record keeping penalty.

Mrs HURN: Well done; gold star for you.

Mr Teague: Gold stars everywhere.

Mrs HURN: Gold stars everywhere. I haven't got one yet, I should note, Chair. Maybe that will come sometime soon.

The CHAIR: You would be worthy of a platinum star.

Mrs HURN: Thank you very much, Chair. I ask a question again in relation to section 16(2a), where it says, 'assisted reproductive treatment must keep those records or documents in accordance with the regulations'. Can you just talk us through what state those documents and records need to be in?

The Hon. C.J. PICTON: As per the section, it is in accordance with the regulations. The regulations have not been drafted yet, but I can say that it is the department's intention to consult upon the drafting of those regulations. Obviously, part of that will be what form the record keeping needs to be in.

Mrs HURN: Again, similar to previous sections, can you talk us through which body or agency might be responsible for making sure that those requirements are fulfilled and that the records are kept in a certain state?

The Hon. C.J. PICTON: ART providers need to have a licence through the minister, and obviously assisted by the department. Part of that is compliance with a whole series of requirements, including requirements of NHMRC, as we have discussed. In addition to that, ART providers also need accreditation through the reproductive technology accreditation committee of FSANZ, which is called RTAC, and they conduct audits of ART providers through that process as well.

Clause passed.

Remaining clause (8), schedule and title passed.

Bill reported with amendment.

Third Reading

The Hon. C.J. PICTON (Kaurna—Minister for Health and Wellbeing) (16:41): I move:

That this bill be now read a third time.

The Hon. A. PICCOLO (Light) (16:41): I will take the opportunity to speak on the third reading to provide some quick comments on things raised during the committee stage, which I think are very important in terms of this bill. Firstly, I would like to quickly quote from the United Nations Convention on the Rights of the Child, because I think it provides a good framework in which, in my opinion, this bill sits. It is also recognition that these rights that we are trying to confer today on donor-conceived people are universally held principles. They are things that have been raised in the second reading and challenged in the committee stage, but I think are worthy of support in this third reading. Article 8 states the following:

1. States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference.

2. Where a child is illegally deprived of some or all of the elements of his or her identity, States Parties shall provide appropriate assistance and protection, with a view to re-establishing speedily his or her identity.

The key words in this particular clause within the United Nations Convention on the Rights of the Child relate to issues about identity.

The issue of identity is key to this bill in the sense that what we are seeking to do through this bill is to help ensure the identity of those people is known who believe their identity is not fully formed or is obscure in some way. That is a key element of this bill and it is a principle that is universally agreed to through the convention.

I say that because it was stated during the committee stage that the amendment proposed by the opposition was seeking to provide choice. On the face of it, it looks like a reasonable proposition to provide people with choice. Importantly, though, the conceived child has no choice. They have no choice about how they are conceived and they have no choice about getting that information and forming their identity. What we are now doing is giving those donor-conceived people a choice. It does not make it mandatory to find out. For those people who are comfortable in knowing the extent of their existing identity, that is fine, but for those who do not—and there are many—it gives them a choice to pursue that.

I reaffirm what I said earlier in the second reading, which is that the rights of the child have to be paramount. Importantly, if I have understood the minister correctly—and I am sure he can correct me if I am incorrect—what we have proposed here is consistent with the Adoption Act, in terms of access to information available to people at the age of 18-plus, so why would we give donor-conceived people fewer rights than those people who were adopted? Both, in my view, are seeking to fill in the jigsaw puzzle of their life. With those few comments, I think this bill, as amended by the minister, is worthy of our support.

Bill read a third time and passed.

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