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Legislative Council - Fifty-Third Parliament, Second Session (53-2)
2015-06-03 Daily Xml
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Bills

Family Relationships (Parentage Presumptions) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 25 March 2015.)

The Hon. T.T. NGO (17:40): I rise today to speak on the Family Relationships (Parentage Presumptions) Amendment Bill. It should be noted that in February this year the Attorney-General requested the Law Reform Institute (the institute) review legislative or regulatory discrimination against individuals and families on the grounds of sexual orientation, gender, gender identity or intersex status. Further, the Governor announced this in his opening address to parliament on 10 February this year. The Governor also advised that the institute's recommendations will be considered by the South Australian parliament.

I note that in the Hon. Tammy Franks' second reading contribution she welcomed the government's announcement but also indicated that the process will take too long for some families. I have been advised by the Attorney-General that the work on the review has begun and an audit of South Australian legislation is underway to identify discrimination on the basis that I mentioned earlier, that is, sexual orientation, gender, gender identity or intersex status.

Information about the review is available on the institute's website. On the website I noticed that there are five fact sheets available. Fact Sheet 5 deals with starting a family and parenting rights. It sets out the laws governing parentage, access to reproductive technology, access to surrogacy arrangements and adoption. The institute asked for feedback on people's views on the relevant laws including whether the current laws governing who is the parent of a child are appropriate.

The other fact sheets deal with general information, legal protections against discrimination, legal recognition of sex, legal recognition of relationships, and how sex and gender are defined under South Australian law. I understand that the institute will soon be formally calling for written submissions from interested groups and individuals. The government is expecting a preliminary report setting out the results of the audit later this year.

The government has committed to bring the recommendations of the institute to the parliament then. I am sure we will all wait with anticipation for the institute's review, into not only this specific issue, but the broader issue of discrimination against lesbian, gay, bisexual, transgender, intersex, and questioning community, also known as LGBTIQ.

Having said that, after hearing about same-sex families who are unable to both be listed on their child's birth certificate due to not living together for more than three years, I feel empathy for their situation. These are couples who have decided to have a child and have undergone a fertilisation procedure. I am sure this is a decision which is not made lightly. Three years seems a long time to have to live together before they are able to have a child. The Hon. Tammy Franks pointed out that some same-sex couples have been in a committed relationship for a long time but have decided not to live together, so they have not lived together for the requisite time and they are still prevented from both being entered on the birth certificate.

As I said previously, I would have preferred this matter to wait until the institute gets the opportunity to complete its report in a few months' time. Since we have to vote on this matter today, I am happy to support this bill in principle. The law currently allows these couples to have both their names entered on their child's birth certificate if they have lived together for three years when the fertilisation procedure is undertaken. This is because of the presumption in the act that if a woman undergoes a fertilisation procedure with the consent of her domestic partner and, as a result, she becomes pregnant, her domestic partner will be either the father or co-parent of this child, as the case may be.

In order for a couple to be in a domestic partnership, they must have lived together for the last three years, or three out of the last four years to have a child together. I do not know the real reason why it was set up like that when the bill was passed. To me, if you were going to allow it then why make these couples wait three years? I, therefore, support this bill in principle.

The Hon. J.M.A. LENSINK (17:46): I shall be brief. This is a conscience vote for Liberal members but it will come as no surprise that, as a rainbow-friendly MP, I will support it. I would like to commend the honourable member for bringing this matter to the house and also to thank the families who came to parliament to attend a briefing on 26 March.

South Australia is the only state which requires same-sex couples to have cohabited for three years prior to conception, and I think that alone should speak volumes. It causes a number of difficulties that most families will never encounter and which are potentially very serious, I would have thought, if we all think of this fairly—and not just as matters of inconvenience. The non-birth mother lacks a number of rights in relation to passports, custody, health decisions and matters of signing of school consent forms. In talking to some of the parents at that briefing, they rely on the goodwill of schools and hospitals to be able to exercise what are normally rights that we all take for granted in these situations, and can be overcome by application to court. I see no reason why these families should continue to be in this situation, and I support the bill.

The Hon. R.L. BROKENSHIRE (17:47): I respect the Hon. Tammy Franks for introducing this bill, and I respect the parents and lobbyists who approached the member. I will be reasonably brief because of some other matters tonight but I just did want to put my position so that everyone is clear on my position as one MP in this house.

The fact of the matter is that this is not about how well children are looked after and all of those things that are often brought up in these debates. To me, this is an issue about a birth certificate. In 2010 I voted against the bill and, if there is a division, I will be voting against the bill again here in this chamber today. The reasons are pretty straightforward: with a birth certificate, irrespective of your faith, your beliefs, your convictions in any respect, the reality is that biologically, as nature has it, you can only have one father and one mother—that is a reality.

The birth certificate is there to acknowledge the birth of that child as a human being so that it is registered and the records can be kept, and to register the father and the mother of that child. I have dealt with a number of cases over the years where, for one reason or another—not through the birth certificate but through other complications—children, particularly when they grow up, want to meet their biological parents and suffer enormous stress and anxiety and there are a lot of cost factors involved and legal issues in trying to identify who their biological parents are.

I have seen them quite often put into very difficult positions which have had ongoing ramifications for them. But the fact of the matter is that on a birth certificate it is clear; and there are other issues such as health issues and gene issues, when people contract certain serious illnesses and need to know a lot more about their genetic background as an individual.

As I said earlier, it is pretty simple: the birth certificate is there to register and identify that birth and acknowledge the biological father and mother. I have not changed my position; I am not going to change my position, and others will have their position. But I advise the house that if there is a division, I will be opposing and voting no.

The Hon. R.I. LUCAS (17:50): I rise to raise some concerns in relation to the legislation. As the Hon. Michelle Lensink has indicated, it is a conscience vote for Liberal members on this particular issue. For the benefit of those members who might be in the minority in this chamber who might ultimately either be contemplating not supporting the legislation or opposing it, I flag that at this stage my intention is to support the second reading to allow debate in the committee stage tonight, but at this stage my inclination is probably to oppose the third reading and probably to call for a division. For those members who might be sitting on the fence at the moment, I am giving you fair warning that you may well be required at the third reading to express a view one way or another.

There are a number of issues in relation to the legislation I want to raise. In the last few days—I think since the weekend—I have received two emails from families urging me to support the legislation. I might have received one or none urging me not to support it, but there were very few contacts via email or correspondence to my office in relation to the legislation. There were two urging me to support it, and in regard to one or both of those families there has been some media publicity in relation to their position on the legislation. As other members have indicated, I certainly respect their strongly-held views on the issue and the view that the Hon. Tammy Franks has put by moving the legislation.

As I look at the legislation—and this was considered by our party room, I think, on 4 May, and the legislation was introduced back in March—there is a provision in the legislation which says in clause 4 that this will apply only to circumstances after the passage of the legislation. I thought to myself, 'This doesn't make much sense.' The bill, as it was drafted, did not actually apply to the people who were writing to me. The people who were writing to me were people where clearly the first fertilisations had occurred prior to the passage of the legislation, yet the drafting of the bill actually excluded them.

I rang parliamentary counsel and said, 'Am I understanding this legislation? It doesn't actually apply.' Parliamentary counsel said, 'No, that's right, but the Hon. Tammy Franks tabled some amendments two weeks ago which seek to fix the problem in the drafting of the legislation.' I have to say—and it is our responsibility because it is a conscience vote where we each have to look at it—I have spoken to four or five other members of parliament and said, 'Are you aware there is a page of amendments to the legislation from the Hon. Tammy Franks?' And no-one was aware there was a page of amendments that had been tabled in relation to the legislation.

Again, I alert people, because I was not aware of it until lunchtime today, that there is a page of amendments which seek to fix what is a flaw in the original drafting of the original legislation to meet the intent. Clearly, the intent of the legislation—as one can see from the second reading explanation from the Hon. Tammy Franks and the public statements—was that the bill was intended to assist people who were already confronting the issues that the honourable member has discussed, and it was not intended to be only those afterwards.

That is, nevertheless, how the legislation was drafted and, as I said, I was struggling to understand the legislation. Members will need to look at that, and there are particular issues in relation to that when we get to the committee stage that I want to raise, because it leaves some significant issues for the Registrar of Births, Deaths and Marriages to resolve, should this legislation pass. I am gathering the vibe that, when the Hon. Tung Ngo is supporting the legislation, one of the warriors of the Catholic Right in the Labor Party—

The Hon. T.T. Ngo: Flexible.

The Hon. R.I. LUCAS: Flexible—then it is unlikely that the legislation will be defeated in this chamber, but nevertheless I think these issues will need to be considered, because there is another house that will need to address some of the issues, and I hope the House of Assembly may well address them in some greater detail than perhaps we thus far have been able to or might this evening in terms of some of the detail of the legislation.

That is the first issue, and it also relates to the second issue I want to raise as well, and that is that this legislation, the Hon. Tung Ngo's speech and others, have all been about, in essence, the fact that the current legislation discriminates against same-sex couples, and this is being portrayed as part of a collective endeavour to remove discrimination in the law which discriminates against same sex couples.

Again, I have not spent a huge amount of time on this legislation, other than some frenetic work in the last few hours trying to get to the detail, but the legal advice I have received is that this is nothing of the sort and that the provisions that same sex couples are complaining about equally apply to heterosexual couples; that is, if there is a complaint or discrimination it is against any couple, whether it is a same-sex or heterosexual couple, of less than three years duration.

The Hon. I.K. Hunter: But it doesn't work that way, Rob.

The Hon. R.I. LUCAS: The Hon. Ian Hunter will have the opportunity, if he so wishes, to put a point of view. It is a conscience vote and he is entitled to put his point of view. I am entitled to put a point of view.

The Hon. I.K. Hunter interjecting:

The Hon. R.I. LUCAS: I am entitled to put a point of view.

The Hon. I.K. Hunter interjecting:

The PRESIDENT: Order! The Hon. Mr Lucas has the call.

The Hon. R.I. LUCAS: If the Hon. Ian Hunter is uncomfortable with that, that is fine: he will have an opportunity to put his point of view; he does not have to interject during my contribution. I am entitled to a view, and I am entitled to put a point of view. The legal advice provided to me is contrary to the discussion that has gone on both publicly and in this chamber and, if I can quote from the Hon. Tammy Franks' second reading explanation, having outlined the problem or issues she seeks to address, she says:

In fact, opposite sex partners need not be in any form of prescribed relationship when they access assisted insemination via a donor. They can then register the resulting birth with the male partner's name as the father without question.

The legal advice given do me is that that is not correct; that is, it is not correct to say that a heterosexual partnership or relationship (or, as the Hon. Tammy Franks puts it, 'opposite sex partners') can then register the resulting birth with the male partner's name as the father without question.

The legal advice provided to me (and I do not profess to be an expert in the area) is that that is not correct, that there are issues for couples of less than three years' duration which clearly apply to the circumstances the Hon. Tammy Franks was talking about in relation to same-sex couples of less than three years. But, the legal advice provided to me was that there are similar issues in relation to heterosexual couples or opposite sex partners of less than three years' duration as well.

The Hon. Tammy Franks in her contribution also said that the three-year provision in the Family Relationships Act is a relic of a particular South Australian approach with regard to the treatment of certain partnerships. As the only member in the chamber who has lived through at least some of those particular debates, it has been and it is an important issue as to the parliament recognising relationships other than what many decades ago were just recognised as marriage.

This parliament and other parliaments over a long period of time have recognised what was originally known as de-facto relationships and a definition at one particular time of five years was put into our legislation. It was, in essence, five years of living together. Legal terms were used but, in essence, you demonstrated that you were entitled to certain rights. You also had certain responsibilities if you were not married but you lived together for five years, then that became three years.

There have been debates over the years, some of which I participated in and some that I didn't, where the parliament has wrestled with the fact saying, 'Okay, where do we draw the line?' Not too many people argue that a one-night stand between two people entitles you to the same rights and responsibilities as a married couple of 10, 20, 30 or 40 years. Somewhere you draw the line between a one-night stand and a marital relationship, whether you want to argue, as is currently the debate, that you extend that definition of marriage to same-sex couples or not, but whatever is your definition there is a degree of commitment. This parliament over a period of time has brought that line back from having to be married, to five years at a certain period of time, to three years at a certain period of time. There is a whole range of other things that have to be addressed as well.

As I said, the Hon. Tammy Franks rightly points out that our definition in South Australia, rightly or wrongly, is different to the approach in some other jurisdictions but, nevertheless, it has been the most recent approach that this parliament has addressed. It may well be that at some stage holistically the parliament has to look at whether they want to move away from that because we use domestic partners—this three years living together—for a whole variety of things, not just for the issue that is being addressed here which is being carved away.

I remind members that most recently the debate about whether or not members of parliament could take a wife or a domestic partner or someone within their travel guidelines was an issue of some public debate. Our travel entitlements refer to the definitions under the Family Relationships Act. What I am saying is this definition of what is the equivalent of some rights and responsibilities of marriage, that is living together for a period of time, is not just important, obviously, in relation to this issue we are addressing today. It is important in relation to a whole variety of other pieces of legislation, entitlements, rights and responsibilities in terms of what is going to be deemed to be, for the purposes of certain pieces of legislation, the equivalent of being married.

We have gone beyond, as I said, just saying you have to be married. We have accepted certain other relationships, but we have drawn the line currently at three years. As I said, I am open and ultimately it is an issue for the government of the day to say, 'We now want to address the issue of whether we get rid of three years and we put in something else.' But let me assure you, the definitions that exist in the other states which do not say three years do not allow someone who lives together for two days to have the same rights and responsibilities as a married couple.

The Hon. I.K. Hunter: But they can go on TV and get married and have the same rights and responsibilities in 24 hours.

The Hon. R.I. LUCAS: The Hon. Mr Hunter is entitled to put his point of view when he stands up and puts his point of view. All I am saying is that the rights and responsibilities will be an issue that this parliament has addressed and will have to address at some stage in the future. All I am saying is that just because the other states do not have a three-year provision does not mean that anyone can say, 'Because I have lived together for two days or three weeks or six months, or whatever it is, I have the same rights and responsibilities as currently the three-year provision within the legislation or as a married couple might have.' That is an issue that has to be addressed.

What we are being asked to look at here is a breach in the wall, I guess, of this three-year provision. As I said, I am open to debate about where we draw the line, but ultimately I do not accept that you draw the line at anyone who says, 'I'm living with somebody and I'm entitled to all the rights and responsibilities of someone else who has gone to a certain level of commitment by getting married or having lived together for a long period of time.' I think you have to draw the line somewhere; that is my personal view. Some might have the view that it does not matter; if you claim to live with someone for two days, a week or two weeks and you feel strongly about them, you are entitled to the same rights and responsibilities.

Ultimately, this house, this parliament, has to look at the Family Relationships Act and, if it agrees to, draw the line in a different way to the three-year provision that currently exists. What this bill is going to do is essentially say that we are not going to rely on the domestic partners definition or three years as the qualifying period, which is currently in the legislation; what we are going to say is that there is this new term that is undefined which is 'in a marriage-like relationship'.

I spoke to the lawyers and asked what the definition of a marriage-like relationship is. It is not defined in the legislation. Ultimately it is going to have to be determined by somebody. The somebody in the first instance in this legislation is going to be when you look at the amendments that were tabled on 13 May. There are certain requirements that are going to clearly be on the Registrar of Births, Deaths and Marriages in relation to making certain decisions, and also in the legislation. I am told that it infers that ultimately the decision is going to have to be taken. Under the Hon. Tammy Franks' legislation, it says, 'In accordance with the requirements prescribed by the regulations.'

My legal advice is that there will have to be some regulations under this which are going to have to try to give some guidance to the registrar. At the moment it says 'marriage-like relationship'. There is no longer this three-year provision which guides somebody. Currently, some of the couples that have asked, 'Could we put our name on the birth certificate?' have been told, 'Well, you haven't lived together for three years.' There is this sort of objective measure of three years and, if you have not met that, then you do not comply. But now there is this, in essence, subjective or less clearly defined provision which is going to be called a marriage-like relationship.

In the circumstances the bill envisages, the couple will have to apply to the Registrar of Births, Deaths and Marriages and say, 'We claim to be in a marriage-like relationship.' Clearly the registrar cannot just accept anybody who rocks up and says, 'We're living in a marriage-like relationship.' They will have to require something. What that something is no-one knows, because the legislation does not define a marriage-like relationship. The best that parliamentary counsel can advise me is that the regulations that are envisaged will have to prescribe some guidelines, in essence, or something for the registrar to follow. The registrar is going to have a paper trail to say, 'I accept that this couple live in a marriage-like relationship.' What that evidence will be is unclear. Those of you who might end up voting for the legislation tonight will not know the precise interpretation the registrar is going to place on the definition of a marriage-like relationship.

It certainly would have made it a bit clearer if the legislation defined 'marriage-like relationship' and gave some guidance. When you look at the legislation and other pieces of legislation, there are a whole range of factors that can be taken into account in defining what is a domestic partnership, for example, in the legislation.

It is not just the term of living together, it is the nature and extent of common residence, the degree of financial dependence, the ownership, use and acquisition of property, the degree of mutual commitment to a shared life, any partnership agreement that has been lodged under the Domestic Partners Property Act, any financial agreement made under the Family Law Act, the care and support of children, the performance of household duties (an important issue in any domestic relationship), and the reputation of public aspects of the relationship.

All of those provisions are currently in the domestic partnerships act as issues that need to be taken into account in deciding whether or not this is a qualifying relationship as a domestic partner, but under the marriage-like relationship provision which is being inserted there is none of that guidance in the legislation, no guidance at all. If there is to be any guidance then it is likely only to be in some hitherto unseen and, I am told, undrafted regulations that will apply to the registrar of births, deaths and marriages.

I raise those concerns at the second reading and indicate that, as I said at the outset, I support the second reading of the bill. I will pursue some of those issues through the committee stage of the debate but, subject to the progress through the committee stage, my intention (probably, at this stage, not definitely) will be to vote against the third reading and to call for division at the third reading.

The final point I make is that, as I said earlier, I am quite happy to engage. Clearly, this is something the government is going to have to address (at any stage in the debate) about where we draw the line in relation to what would be a qualifying domestic relationship or partnership; that is, drawing the line differently to the current three-year line, if that is the issue of concern for some members. That is not an issue that can be addressed specifically in this bill but it is an issue that will need to be addressed. If this legislation passes both houses it will impact on that sort of debate, ultimately because there should be consistency across the board in relation to what we might refer to as qualifying relationships.

The Hon. K.L. VINCENT (18:12): The Hon. Michelle Lensink and I sometimes joke that we have a tendency to set each other off, and I have my tissues here just in case.

The Hon. I.K. Hunter: You're a bad influence, Michelle.

The Hon. K.L. VINCENT: Bad influence, indeed, but you would know nothing about that, would you, Mr Hunter, being a bad influence? I have seen photos of your 21st birthday party. You forget this. Adelaide is a small town, sir. I digress ever so slightly.

I have not done a count but I can say with certainty that I have received more than two emails on this issue, maybe that has to do with targeting your audience, I am not sure, but I certainly have received more than two emails on this very important issue. I like to think that will not come as a surprise, as the Hon. Ms Lensink said, as a rainbow-friendly MP, and finding myself somewhere on that rainbow I do not think it will come as a surprise that I will lend my personal support to the bill. I would particularly like to thank Ms Sally Amazon and Ms Elise Duffield and all the other families who have contacted my office and have been campaigning very strongly on this issue.

Just to recap the situation for the benefit of anyone reading the Hansard. In current situations where lesbian co-parents, lesbian couples, have not yet resided together for a period of at least three years at the time of the birth of a child, only one parent can be legally recognised as the parent of that child. I understand that the arbitrary three-year requirement currently exists only in South Australia. I understand that this means that only one person in the couple can carry out everyday parenting tasks, such as giving consent for school activities.

On a more serious note, I understand that it also means that only one parent can give consent for things like medical treatment. This creates what I would think is an obviously undesirable situation, to say the least, where, for example, the non-legally recognised parent may not be able to consent to medical treatment if the legally recognised parent were injured at the same time as the child and needed treatment themselves and therefore was unable to consent.

I can only imagine the anguish this would cause a family in the event of the death, for example, of the solely legally recognised parent. I imagine that this would add unthinkable stress to an already tragic situation for the remaining parent and child, who would then have to go through a custody battle as well as dealing with the situation of losing a partner and parent.

For a few reasons, I do not accept that removing the three-year requirement will result in less commitment in these relationships before having a child. The Hon. Mr Lucas talked about the situation he could foresee, where people might attempt to have a child together after living together for two days, I think he said. Given that this bill pertains to birth certificates that are given only after the birth of a child, as a person with a female reproductive system (although I have not yet put it to use for that reason), I feel qualified to say that it is incredibly difficult to give birth to a child after two days.

I have also been contacted by couples in relationships of upwards of 14 years' duration. As another example, I have also been contacted by a same-sex female couple who recently got married in New Zealand and waited until after marriage to move in together because that aligned with their perception of their Christian faith. They waited to get married to move in together and start talking about having a family, so I do not think that we can suggest that this is having an effect on the commitment of those relationships.

Of course, I cannot speak for all same-sex couples because I have not met them all yet, but as well as the fact that no-one can conceive and give birth in the duration of two days, I also add that these situations do, I would hope, require a certain level of commitment, given that in a lesbian relationship I think it would be quite difficult to have a baby by accident, so it does require some commitment at that level. However, I hasten to make the point that this is about existing children and their birth certificates, which can only be given after birth. This is about the family this child will grow up with and consider their family.

Certainly, I think there is a need for people to know their genetic heritage where appropriate, for reasons that have been mentioned. I do not think that anything in this bill would stop that from occurring: people are still able to have tests done and so on, so I do not quite accept that argument. The point I am trying to make is that this is about the family that will raise, love and care for that child, and that is what I consider to be the true definition of a family, so I will strongly be supporting this bill.

The Hon. I.K. HUNTER (Minister for Sustainability, Environment and Conservation, Minister for Water and the River Murray, Minister for Climate Change) (18:19): I will be as brief as I can. I was not going to contribute to this debate or trouble the house with my views—they are well known—but I have been enticed into it, I suppose. I get so sick and tired of being lectured to on the legitimacy of my relationship, sick and tired of how I should be happy with second-class status of a citizen in this state and this country, or how I should be happy with my relationship and marriage to my husband not being recognised in this country, because that is where we have drawn the line—that is where we have drawn the line. I am sick and tired of being lectured to about that.

I rise to support this bill. I am very pleased to add my weight to all Labor MPs who will be voting for this bill tonight. Why on earth should a couple who have decided to start a family, have children, have to wait for two years or three years before they are able to put both names on a birth certificate? Why on earth should a couple who have committed themselves have to wait for a period of time because that is where we drew the line? It is ludicrous.

I want to foreshadow now—again, I was not going to do it—that I have prepared a bill which will remove the qualification period completely by registering relationships with the registrar of Births, Deaths and Marriages. I have decided, however, to forward that bill to the Law Reform Institute because the government has requested of the Law Reform Institute a report on how we can remove the last vestiges of discrimination against the LGBTIQ community in South Australia. For that reason, I have decided to refer my bill to that inquiry so that it might be considered as part of the overall report we receive as a government.

However, I just have to say that I am astounded at some of the tactics in this place tonight. The Hon. Mr Lucas has used all of the tricks and rhetorical language that he has picked up over 30 years in this place. He is an old war horse, he is an old stager. He is used to trying to confuse debate, confusing people with legal advice that we have seen nothing about, and to raise doubt. He raises doubts about the current legislation and how it applies equally to heterosexuals and non-heterosexuals when, of course, that is just not right. It might be the interpretation he has from a lawyer, but it is not what happens in real life.

We know the registrar of Births, Deaths and Marriages records on birth certificates for heterosexual couples both names. We know that because that has been the practice for as long as we can remember. I have every confidence, if this bill is passed by both houses, that the registrar would apply her normal common sense approach to her job of recording the appropriate names on the birth certificate of a non-heterosexual couple. We understand that she is a very common sense-type person. She would interpret the regulations that are given to her, or the legislation, in the best way she can to get as much information on the birth certificate as she possibly can.

As I say, I am astounded at some of the arguments I have heard here tonight, throwing up barriers that do not exist but are postulated to maybe cause us problems. Well, it is a nonsense. It is a very simple bill. I commend the mover for it. I will wholeheartedly support it tonight.

The Hon. G.A. KANDELAARS (18:22): I rise to support this bill. I indicate that I actually have a personal interest in this matter. As I previously indicated in this chamber, my daughter is a lesbian and she is in a committed relationship. She and her partner are currently going through the process of trying to have a child through IVF. I would be absolutely incensed if both of them were not able to be registered on a birth certificate. Their commitment is not only to each other but their personal commitment, their financial commitment, is beyond belief. The whole process is not exactly a cheap process. It is a very expensive process, and it shows you their commitment.

Their commitment is far greater than most heterosexual couples—far greater. They have shown that they have got a commitment to raise a child, to raise it probably better than I could in all manner of thought. It would be an absolute tragedy if they were denied the right to be recognised as co-parents. The current law is arbitrary and it is discriminatory. The fact is that the registrar does not make a distinction if a married couple or a de facto heterosexual couple comes in and says, 'We've had a child.' Both of them will get registered.

The fact is that if two females or two males approach the registrar now they are asked. 'Do you meet the three year rule? Will you actually sign off on the three year rule?' That is the arbitrariness of this process. It is all well and good for the Hon. Mr Lucas to give us the technical position; and in a sense he is right, but the fact is it is not actually regulated that way. The fact is it deliberately discriminates against homosexual couples; that is the reality.

The other furphy that has been raised is about the birth certificate and whether it indicates a biological parent. Well, the reality—the true reality—is that many birth certificates today do not record the biological parent. Gender is one thing: whether they are gender-related is a totally different story, so to actually suggest that the birth certificate actually has some relationship to indicate whether you are the biological parent is not actually true.

One would like to think it might, and the gender biological issue is a separate issue that at some stage this parliament will need to address, because the child does have the right to know its origins in my view. But let's not get tied up with the furphies here. The reality here is that homosexual couples are being discriminated against at this point in time. They are just as good parents as heterosexual couples, and they do not need the current discrimination to continue. It is my view that it is a nonsense; let's get on with this and support this bill.

The Hon. J.A. DARLEY (18:26): Can I firstly commend the Hon. Tammy Franks for bringing this matter before the house, and I indicate that I will be strongly supporting this bill.

The Hon. T.A. FRANKS (18:26): I would like to thank those speakers who have made a contribution to this bill: the Hon. Tung Ngo, the Hon. Michelle Lensink, the Hon. Robert Brokenshire, the Hon. Kelly Vincent, the Hon. Ian Hunter and the Hon. John Darley. I also want to commend the work of Rainbow Labor and the advocacy of Senator Penny Wong on this issue.

I wish to first address some of the issues that were raised as matters of concern with the bill and the Hon. Robert Brokenshire's concerns about the birth certificate. This bill amends a part of the act that deals with something called 'presumption of parentage'. What I would point out to members is that presumption is afforded to married couples that, should a woman and a man be married, and that woman conceive a child, it is presumed that her husband is the father of the child, regardless of who the father of that child is.

Should that not be contested, that is the presumption and, as we know, in many cases that was not always the appropriate biological or genetic record of what happened, and indeed in cases of adoption, of course, that is not the biological or genetic reflection, yet that is very important for those adopted children to have two parents on their birth certificate.

We were informed by the Hon. Rob Lucas that he had some concerns about the bill. The first point I would make is that he did not raise any of these concerns with me before tonight. He could not lift the phone or send an email to ask for some answers to his quite valid questions, because I do have answers for those questions. He could talk to parliamentary counsel and he could seek legal advice, yet he could not call somebody who had indicated to all members of this parliament—whether or not you agree, and I had sent it to every single member of this parliament—that I was willing to converse with them if they had any questions about the bill.

Originally I had intended the bill to be much broader, and in fact I wish to address the issues around the fact that, given that we still do not have assisted reproductive technology reform in the state, many couples conceive through means which are not as formalised as the current practices anticipate, and so I was intending to broaden that definition as well.

I decided not to undertake that path with the announcement in the Governor's Address in Reply speech. Given that that particular debate I think is far more complex than the one we have before us, I decided to keep it simple. In doing so, under the directions of parliamentary counsel—the conception part of my original bill was not ever circulated to members of this council, nor was it introduced—parliamentary counsel had reservations about retrospectivity and did not wish that particular draft bill to be retrospective. I had disagreements with parliamentary counsel and issued a direction to them.

Sitting extended beyond 18:30 on motion of Hon. G.E. Gago.

The Hon. T.A. FRANKS: I had conversations with parliamentary counsel in the interests of keeping this debate simple and indeed addressing the interests of those families whom I raised in the second reading debate on this particular bill, in particular, obviously young Tadhg, whose mother Sally is not recognised as his mother on his birth certificate (in fact, he does not yet have a birth certificate, despite being over one year of age), and Rosalie and Kylie, who are a Christian couple who have gone overseas to get married in New Zealand, who now wish to have children but who will now have to wait three years because their marriage is not recognised as a marriage-like relationship. I wish to address those families here and now before the legislative review program that has been flagged in the Address in Reply speech.

I believe that, given we have a review of the Adoption Act and a review of all of those areas of inequality being undertaken by the government, there was no need to complicate this debate. So, in that discussion with parliamentary counsel, there was some dispute between myself and one of the drafters about whether or not this law could and should be retrospective, even though my directions had been that we were dealing with cases where the law needed to be amended to ensure retrospectivity. There was intervention by another member of parliamentary counsel, who pointed out that previously we had implemented changes to the presumption of parentage in a retrospective manner, and that dispute was resolved within parliamentary counsel to my satisfaction.

At that point, members would have received the amendments to my original bill on 13 May, some time ago now, and certainly that raised no questions at the time. I would note that the domestic partnerships act is indeed a particularly South Australian phenomenon, a phenomenon where, as the Hon. Rob Lucas noted, 'Where do we draw the line?' He pointed to our five years and now three years, and he pointed to members of this parliament having some discrepancy about who could be their partner under our travel entitlements.

What I would say is that my child has lived with me as a single mum for more than three years now, but I am not entitled to take her on travel with me. But, should my mother have been recognised under domestic partnerships for the purposes of the broader South Australian laws, despite the fact that she and I are not in any way in a marriage-like relationship, that would be given status under the domestic partnerships act, but I doubt it would be given the entitlement for me to take my mum on parliamentary travel. These are the double standards we have, but these are the multitude of family situations we have in our country.

It is quite right that a marriage-like relationship is not defined here. What I would say is that this country has yet to allow same-sex couples to marry, so a marriage-like relationship is all they have. What I would also say is that, when reservations were brought up about where we draw the line and whether it is a one-night stand, I have to say, if you get pregnant from a one-night stand, that is treated as a marriage-like relationship and a de facto couple can be recognised. Both of those people from that one-night stand will be on that child's birth certificate, should they both want to be. That shows a lot less commitment than a lesbian couple who seek to bring a child into this world together, willingly and consciously.

The Social Development Committee recommended some time ago a range of same-sex parenting reforms. We have seen reform only in the area of parenting presumption, and here we are some five years on from when that committee was announced. That committee, however, did note the hurt that was caused to these families, the fact that these families are here and now, the fact that those children are disadvantaged by both their parents not being recognised when they are being consciously brought into this world, and indeed that those families, by and large, are caring, loving families who deserve the support of this parliament.

I would like to respond particularly to some of the concerns raised by the Hon. Rob Lucas with reference to a document that will be referred to should this bill pass tonight and be debated in the House of Assembly but that I do not yet have the ability to make public. I noted in previous media, and I am not sure if I noted it in the second reading speech to this bill, that Elise Duffield and Sally Amazon, who are the parents of young Tadhg, made a complaint to the Human Rights Commission. Correspondence of 14 May received by them indicates that they have had good news. In fact, the email that they have received from Ryan Turner notes:

We've had some good news this morning in relation to your complaint! Please see the below emails from Bethany Hender and the Crown Solicitor's Office. The Crown Solicitor has agreed to both of the recommendations that you proposed in your response to the Australian Human Rights Commission (AHRC):

1. To change the forms of Births, Deaths and Marriages to require all de facto couples to report on their application form, and not simply same-sex couples; and

2. To prepare a briefing for the Attorney-General, John Rau MP, raising your recommendation that the law be amended.

The Crown Solicitor has also said that they're willing to engage in conciliation if necessary. We will consider further if there is likely to be any further benefit that we would be able to obtain from engaging in conciliation at this stage. We will be in touch to discuss your views on this. Bethany Hender from the AHRC has provided us with a template conciliation agreement to formalise the above steps that the Crown Solicitor is to take.

This is a good win, but it seems at this point the case that you, Sally, are still not able to be registered as Tadhg's mother. But the actions that the Crown Solicitor has agreed to take will (subject to the final content of the forms and the practices of Births, Deaths and Marriages (BDM)) remove the discriminatory application of the law by BDM and may be a spur for the Government to amend the Family Relationships Act 1975 (SA).

If the law is changed, it may be that it is changed without retrospective effect. In that case, it would not apply to you and Tadhg.

I note that this means, contrary to what the Hon. Rob Lucas said, that in fact, in the future, heterosexual couples may well be required to justify the parentage of their child to have both of those parents on the birth certificate. This is probably not the situation we wish to see. At the moment, a lesbian couple flags with Births, Deaths and Marriages, because of the fact that there are two women who apply for that birth certificate, questions to be asked that are not asked of a couple who are male and female. With that, I recommend the bill to the council.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. R.I. LUCAS: I raised one of these issues in the second reading contribution, and it relates to the issue of the regulations. Can I just ask the mover as to whether she has had any discussion yet with the government, I suppose, in terms of the nature of the regulations that will govern the operation of the Registrar for Births, Deaths and Marriages which are envisaged in the legislation?

The Hon. T.A. FRANKS: I thank the honourable member for his question. I have not had a direct conversation with the Attorney-General as such, but I note the great support of the Labor members of this place and that the member for Reynell, Katrine Hildyard, will be taking carriage of this bill in the lower house, and she has had discussions with the Attorney-General within their party situation. So, I imagine that, should it pass, that will become something that the Attorney-General will take heed of, and I believe that the Human Rights Commission ruling will probably speed that process.

Clause passed.

Clauses 2 and 3 passed.

Clause 4.

The Hon. T.A. FRANKS: I move:

Amendment No 1 [Franks–1]—

Page 2, lines 13 to 18—Leave out clause 4

As noted in my response to the second reading part of the debate, this has been a move to address the issues with the direction to parliamentary counsel that this bill is intended to be retrospective to ensure that it is retrospective.

The Hon. R.I. LUCAS: The honourable member, in response to the questions I raised about the drafting of the bill, indicated that she had had a disagreement with parliamentary counsel and had issued instructions. Are we to assume that these instructions were ignored by parliamentary counsel or that the direction did not come until after the bill was introduced into the house by the member? It would be useful to be clear as to when this debate was resolved from her viewpoint.

The Hon. T.A. FRANKS: As I noted, the original bill was meant to be far broader. The advice then of parliamentary counsel was that it could not be retrospective. I then removed the references to the conception methods and asked that it be made retrospective. The member of parliamentary counsel who then provided the revised bill believed that she was unable to make the legislation retrospective, but on advice of Mark Herbst we had that changed and fixed.

The Hon. R.I. LUCAS: I guess my question to the member is: when she introduced the bill was she aware that it was not retrospective?

The Hon. T.A. FRANKS: No, I was not, because I had been told that that part of it had been fixed by parliamentary counsel, and only on seeking legal advice did we raise further concerns about the fact that it was not retrospective. We then had a debate within parliamentary counsel, where I sought the assistance of Mark Herbst, who had previously dealt with this legislation. It possibly would have been advantageous to have used the same parliamentary counsel through both bills.

Amendment carried; clause negatived.

Clause 5.

The Hon. T.A. FRANKS: I move:

Amendment No 2 [Franks–1]—

Page 3, line 6 [clause 5, inserted subsection (3a)(c)]—After 'any child born' insert:

(whether before or after that election)

This amendment is consequential.

Amendment carried; clause as amended passed.

Schedule.

The Hon. T.A. FRANKS: I move:

Amendment No 3 [Franks–1]—

New Schedule, page 3, after line 14—Insert:

Schedule 1—Transitional provision

1—Immunity

Despite a provision of the Births, Deaths and Marriages Registration Act 1996, no liability attaches to a person for a failure to provide to the Registrar particulars of the person who is the father or co-parent of a child in the case where—

(a) the child was born before the commencement of this clause; and

(b) the person is only taken to be father or co-parent of the child by virtue of Part 2A of the Family Relationships Act 1975 (as amended by this Act).

Again, this amendment is consequential.

The Hon. R.I. LUCAS: My question is specifically on that. Is the member indicating that she has had advice that this amendment is consequential on the first two?

The Hon. T.A. FRANKS: The direction to parliamentary counsel was to ensure that the bill was retrospective and, given that the bill only applied to those parents who did not qualify in the three-year qualification period that applies only in South Australia due to the Domestic Partnerships Act, these are all consequential.

New schedule inserted.

Title passed.

Bill reported with amendment.

Third Reading

The Hon. T.A. FRANKS (18:44): I move:

That this bill be now read a third time.

The Hon. R.I. LUCAS (18:44): I rise to speak briefly. I have not delayed the committee stage, as I understand members are probably keen to get away from the chamber and did not want to sit this evening, but I will speak briefly at the third reading and indicate as I outlined at the second reading that I was likely to vote against the third reading which I indicate I will and will call 'Divide!'

I speak briefly and I do not want to respond in detail. All I will say in general terms is on these issues. Each of us has strongly held personal views. What I find amusing from some is that because some of us sometimes have views which are not the prevailing majority view, they are pilloried and attacked with personal abuse in terms of the attitudes and positions that they put.

Members interjecting:

The PRESIDENT: Order!

The Hon. R.I. LUCAS: All I will say is we will have the opportunity at another stage to address these issues. I just indicate that they are strongly held views that we all have, we are each entitled to put those strongly held views, and I certainly as one member of this chamber will never be reluctant to put the strongly held views that I might have on any piece of legislation, including this one.

The PRESIDENT: I put the question that this bill be now read a third time. I declare it carried.

The Hon. R.I. LUCAS: Divide!

The PRESIDENT: There is only one voice.

Bill read a third time and passed.

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