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Legislative Council - Fifty-Third Parliament, Second Session (53-2)
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Statutes Amendment (Surrogacy Eligibility) Bill

Second Reading

Adjourned debate on second reading.

(Continued from 1 December 2016.)

The Hon. J.M.A. LENSINK (16:08): I rise to make some remarks in relation to this bill and indicate support for legislation which amends the Assisted Reproductive Treatment Act, the Equal Opportunity Act and the Family Relationships Act. My understanding of the changes to the Equal Opportunity Act is that services will now be covered by the Equal Opportunity Act, which were not previously. In effect, assisted reproductive services could discriminate on certain grounds but some obviously chose not to, so it addresses the medically versus socially infertile matter. The Family Relationships Act amendments are to allow non-heterosexual couples to have access to surrogacy agreements.

I think that essentially covers the changes to the legislation; clearly, I support those. I think it is time that our parliament addressed matters where people are commissioning these services interstate and overseas. We need to make sure that we are keeping up to date with some of those practices and not disadvantaging South Australians who are going overseas or interstate to obtain services that they could otherwise obtain here.

I would also like to commend my colleague, the Hon. John Dawkins, for his persistent oversight of ensuring that the people he has fought for for such a long time to obtain surrogacy treatment will continue to be covered under legislation. I understand that there are some amendments to, in effect, enable that to continue under this legislation. With those brief remarks, I commend the bill to the house.

The Hon. R.I. LUCAS (16:10): I rise to speak to the second reading of the bill. As I outlined in my second reading comments on the relationships register bill, I indicated my general approach to these four pieces of legislation. Whilst I will support the second reading of the bill to allow discussion and debate in the committee stage, it will be my intention to not support the third reading of the legislation. The second reading of this bill, as the Hon. Mr Dawkins outlined in his contribution, was a mess in terms of its parliamentary procedure, if I can put it that way, in the House of Assembly debate.

It was a bill that was debated without a second reading explanation because it was carved out of the original draft bill and split into two, which made following what was going on in the House of Assembly debate very difficult. At least in the Legislative Council debate we have a second reading explanation from the minister who is moving it and an appropriate process for consideration of the aspects of the legislation. As the minister outlined in his second reading explanation, the bill seeks amendments to the Assisted Reproductive Treatment Act, the Equal Opportunity Act and the Family Relationships Act to:

...alter the access and eligibility provisions and the rules dealing with surrogacy, access to assisted reproductive treatment and the recognition of legal parentage.

The bill will allow for much broader access to the LGBTIQ community to assisted reproductive treatment and surrogacy agreements, according to the minister. To quote the minister:

The discrimination in the law, as it currently stands, makes what is already a complicated and stressful process even more complicated and stressful. This Bill will remedy that.

Further on, the minister states:

This Bill does that by allowing members of the LGBTIQ to create their own families through access to assisted reproductive treatment and surrogacy agreements.

Further on, without reading the whole section, the second reading explanation highlights that people's access to that treatment will not be 'discriminated against on the basis of their sexual orientation, marital status or religion.' The Family Relationships Act will be amended so that:

...with respect to surrogacy, permit access to surrogacy for domestic partners (including parties to a registered relationship), regardless of sex, gender identity or marital status.

In relation to the surrogacy issue, we in this chamber have been exposed to part of the debate on this bill over a period of time. Minister Hunter either moved or was going to move (I cannot recall the exact end result) amendments to extend access to surrogacy agreements to—

The Hon. I.K. Hunter interjecting:

The Hon. R.I. LUCAS: He moved it and lost, according to Mr Hunter. The Hon. Mr Dawkins made it quite clear that his amendments were not open to same-sex couples. He and others, according to the Hon. Mr Hunter, opposed the Hon. Mr Hunter's amendment on that particular occasion. Amongst other things, this is seeking to reverse that previous decision in this legislation. My position was clear at that time: I opposed the extension to same-sex couples for surrogacy agreements. That remains my position in relation to this particular legislation. For those reasons and the reasons I outlined in my second reading contribution to the Relationships Register (No 1) Bill, I will oppose the third reading of the legislation as well.

The Hon. S.G. WADE (16:15): As I enter this debate, I would like to join my colleagues in acknowledging the work that the Hon. John Dawkins has done in relation to the issue of surrogacy over the past decade. The Hon. Mr Dawkins has led reform in this area and it is a rare example of legislative reform by an opposition member. In that context, I gave particular regard to his views on this matter and I was disturbed to hear earlier in the debate that there was the potential—unintended, I assume—to withdraw the rights to surrogacy for certain groups of people.

I understand the honourable minister and the Hon. Mr Dawkins had discussions and that there was the possibility of a statement on the record. The Legislative Council has made me a cynical person and I am very uncomfortable with statements on the record. I am delighted that there is an amendment before us which will address the concern that the minister and the honourable member discussed. I think it is very important in this area that we be clear and that the legislation does not have any unintended consequences.

In terms of my personal position on this bill, I have said before that in approaching this bill, as with a number of bills that we have been considering recently, I seek to give primacy to the best interests of the child. My contribution to one of the Hon. John Dawkins's battles on surrogacy: I was a member of the Social Development Committee into gestational surrogacy, which reported in 2007 or 2008, I think. In that report, the committee said:

The committee seeks to give primacy to the best interests of the child. The committee is particularly mindful that children should not be denied access to information regarding their genetic history or the circumstances of their birth.

In previous legislative consideration, in particular in relation to the Reproductive Technology (Clinical Practices) (Miscellaneous) Amendment Bill, I have supported making surrogacy available to a broader range of people because, as I said in that bill:

I am very concerned that children being conceived outside the framework of the [act] are not being provided with a range of protections. For example, they would not be given the protection of the assessment and counselling services, they would not be given the protection of the full medical support of ART services and they would not be given the protection of screening to avoid the transmission of sexual diseases and genetic conditions.

Consistent with that position, I will be supporting this bill.

The Hon. J.M. GAZZOLA (16:18): I will be supporting the bill.

The Hon. I.K. HUNTER (Minister for Sustainability, Environment and Conservation, Minister for Water and the River Murray, Minister for Climate Change) (16:19): I would like to thank all members for their contributions to this debate in amending the Assisted Reproductive Treatment Act 1988, the Equal Opportunity Act 1984 and the Family Relationships Act 1975. This bill is an important step in giving fuller access to surrogacy for South Australians, including members of the LGBTIQ community. However, before going into depth about the bill and reminding the council about some of the main components of the bill, I would like to pay tribute to the Hon. John Dawkins and his important work in surrogacy reform.

As many in this council would know, the Hon. John Dawkins has been a fierce advocate for surrogacy for the state of South Australia. He has worked tirelessly for the past decade to create, essentially, the state's surrogacy laws. I would like to outline to the council some of the legislative work that the Hon. John Dawkins has done on surrogacy. We occasionally have vague memories of what has gone on 10 years ago but, when considering this legislation, it is good to go back and look at the record.

The Hon. John Dawkins' work in this council started in 2006 in relation to the development of the Statutes Amendment (Surrogacy) Bill 2006. The purpose of the bill was to legalise altruistic gestational surrogacy, as well as recognition on birth certificates of the genetic parents of children born via such a process. The bill sought to amend the Family Relationships Act 1975 to establish recognised surrogacy agreements. In that agreement, a woman (the surrogate mother) would agree firstly to become pregnant, or to seek to become pregnant and, secondly, to surrender custody of all rights in relation to a child born as a result of a pregnancy to two other persons, otherwise known as the commissioning parents.

That is a major step for someone to take. The parties to the agreement are, of course, the surrogate mother and, if she is married, her husband, and the commissioning parents, and no other person. At the time, the bill applied to heterosexual couples, utilising a close relative as a surrogate mother where no money changed hands. The bill, I think, for its time was a good piece of legislation, making good policy.

After being referred to the Social Development Committee, reintroduced in 2008 and then prorogued, the bill was reintroduced. Through the Hon. John Dawkins' hard work, his negotiation, his passion and his persistence, I think, that bill was assented to on 1 December 2009. This was an important milestone, but the Hon. John Dawkins did not stop at that. In 2010, the honourable member introduced the Statutes Amendment (Surrogacy) Amendment Bill 2010, amending a transitional provision of the surrogacy act.

Finally, the Hon. John Dawkins further improved the state's surrogacy laws with the development and passing of the Family Relationships (Surrogacy) Amendment Bill 2014. This bill sought to amend the Family Relationships Act 1975 and to make a related amendment to the Assisted Reproductive Treatment Act 1988 in relation to altruistic surrogacy. This further sought to allow for the reasonable reimbursement of costs incurred by a surrogate mother. This bill, I think, helped to establish a framework that would enable a register of approved surrogates to be established and to be accessed by approved medical institutions. It is a stepwise evolution of the very first attempts the Hon. Mr Dawkins made in this place in 2006 to introduce this concept into our legislation.

As the council would be aware, at the time of the bill's introduction, the situation of people wishing to seek surrogacy arrangements was limited to people seeking a surrogate from their family and friends. If no family or friends were available for surrogacy, then people were forced to go into the overseas commercial surrogacy market. This bill was pivotal in making it possible for a commissioning couple to contact a surrogate via, firstly, an approved medical institution and, secondly, the register. In this sense, the bill made surrogacy much more accessible to many more people.

The regulation of overseas surrogacy agreements was also included in this important bill. These provisions mirrored the process already in place at the time for overseas adoptions, which makes good sense, too. The bill really determined a solution, maybe not wholly, but partly, to issues that were recently raised at the time of the current laws, and that has been referred to in this debate previously by the baby Gammy issue. The bill sought to ensure that the minister reviews the framework for the upkeep of a surrogate register and approvals of surrogacy agreements at least every three years to ensure that it is in line with current community expectations.

Today, without putting any words in your mouth whatsoever, I think the Statutes Amendment (Surrogacy Eligibility) Bill 2016 is further development on the Hon. John Dawkins' body of work on surrogacy. As the council will probably be aware by now, the South Australian Law Reform Institute released a report about surrogacy in the state, entitled 'Rainbow families: equal recognition of relationships and access to existing laws related to parentage, assisted reproductive treatment and surrogacy'.

The report set out SALRI's review of equal recognition of parental rights and access, including surrogacy, in the state and made a number of recommendations. The bill is, in part, a response to those recommendations and provides access to and sets out rules for dealing with surrogacy. Most importantly, the bill builds on the work mentioned earlier of the Hon. John Dawkins throughout the last decade by at last providing, if the bill is successful, for LGBTIQ couples to access surrogacy agreements in this state. I understand that the Hon. John Dawkins has raised some concerns with a particular provision of this bill, namely, the eligibility criteria that are currently available at section 10HA of the Family Relationships Act 1975 for women wanting to access surrogacy in South Australia but who are unable to safely carry a baby to term.

There was no intention for this bill to limit the availability of surrogacy in the states. However, to put this matter beyond doubt, to move aside from a statement that the Hon. Mr Wade delicately put that he has less faith in than the provisions of legislation, I will be moving an amendment that makes it abundantly clear that surrogacy continues to be available in all of those circumstances outlined in the current act.

The Hon. Mr Dawkins also asked about the regulations for the current provisions of the Family Relationships Act 1975. I can indicate that the government is committed to progressing the consultation which is required by the comprehensive process outlined in the act and that the time line will depend on the issues raised in that consultation. With regard to regulations under the current bill, again, there will be a need for a consultation process to be undertaken, but I fully expect that that process will not be protracted and I will utilise my best abilities to make sure that these things are dealt with in speedy time. I commend the bill to the house.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. R.I. LUCAS: I indicate that at some time during the committee stage I intend to test the committee's view on reporting progress. I did not repeat this issue during the second reading of this bill but I did on an earlier bill. I have not had a chance to consult anyone, other than a brief conversation in the corridor with the mover, the Hon. Mr Hood, in relation to his two pages of amendments. He said in this chamber and I think briefly in our conversation that it really relates to one particular issue, but I have not had the opportunity to consider it, reflect on it or, indeed, speak to anyone about it. In the brief conversation that I had with the Hon. Mr Hood, I asked him whether there is a precedent for this in any other jurisdiction. I think he—

The Hon. D.G.E. Hood: Overseas there is.

The Hon. R.I. LUCAS: Okay. I thought his answer to me in the corridor was that there was not but, since then, he has established that there is overseas. At some stage, if he gets a chance during this debate, he can outline what the precedents are and what the amendments are seeking to do and their impact. Some of us may want to reflect on the government's position on it as well. I will just flag that before we conclude the committee stage of the debate and vote on that particular amendment, I will move that we report progress so that we can at least give members the opportunity overnight to consider the amendments.

The Hon. J.S.L. DAWKINS: In a similar vein, I suppose, I have reflected to a limited extent on the Hon. Mr Hood's amendments but I do not yet feel in a position to make a determination on them. In the second reading summary, the minister was very generous in his outline of the work I have done in this field and the work and the amount of effort that other colleagues have put in to support me—not all, but many—even those who do not necessarily agree with it. They have generally tried to advance the legislation.

Having noted the amount of time that this chamber has spent, as the minister outlined, over a decade on this issue, I would like to get it right. I indicate now that I would support a move to report progress after we have done some work on this, and perhaps the minister will consider that favourably because we could well conclude that work tomorrow. That is my personal preference.

The Hon. D.G.E. HOOD: I would like to ask the minister a question at clause 1, if I may. Does the government keep any statistics with respect to surrogacy arrangements in South Australia; that is, how many occur on average per year, how many in the last five years, etc.?

The Hon. I.K. HUNTER: I do not have that data at hand. I imagine the Department for Health and Ageing would. We will seek that data tonight and, as indicated by the Hon. Mr Lucas and the Hon. Mr Dawkins, there will be some move at some stage—probably after you have moved your amendment, the Hon. Mr Hood—to report progress. We could either do that or come back and revisit it. I am reasonably flexible. However, if we report progress on this one, as we have done with adoption, then we will certainly need to deal with both of those tomorrow. If people are happy with that process, I indicate that I am pretty flexible about that.

The Hon. S.G. WADE: I look forward to hearing the Hon. Mr Hood's contribution on clause 3, but it raises issues of general equal opportunities law. I indicate my support for the views of my honourable colleagues that we not try to deal with these issues substantively tomorrow. I remind members that we always have Thursday and we always have February.

The Hon. J.S.L. DAWKINS: In relation to the question that the Hon. Mr Hood asked the minister, it will be good to get that data if it is available, but my own personal experience is that I have often been asked how many people utilise the surrogacy arrangements. I find it very difficult to give any definitive answer to that because other than Ms Kerry Faggotter, who we have all come to know through her advocacy, just about everybody else involved is extraordinarily private and does not particularly want the community to know.

However, I would make a comment about the legislation that was passed through both houses in July last year. I think if the regulations had been developed by now—and the minister laughs and I understand why he is laughing because he understands my frustration, as most do—there is no doubt that if the regulations concerned with that bill had been promulgated by the Attorney-General at a reasonable time, then there would have been a lot more South Australians able to access surrogacy in South Australia than is currently the case.

The Hon. D.G.E. HOOD: I thank the Hon. Mr Dawkins for his response. I fully understand that these will be difficult statistics to keep for many obvious reasons, so that is why I ask the question: does the government keep these statistics and, if so, what are they?

Clause passed.

Clauses 2 and 3 passed.

New clauses 3A, 3B and 3C.

The Hon. D.G.E. HOOD: I move:

Amendment No 1 [Hood–1]—

Page 2, after line 11—Before clause 4 insert:

3A—Amendment of section 3—Interpretation

Section 3—after the definition of recognised surrogacy agreement insert:

registered objector—see section 8(3).

3B—Amendment of section 6—Eligibility for registration

Section 6—after its present contents (now to be designated as subsection (1)) insert:

(2) The fact that an applicant for registration has a moral or religious objection to the provision of assisted reproductive treatment to another on the basis of the other's sexual orientation or gender identity, marital status, or religious beliefs is not, of itself, grounds for finding that a person is not fit and proper to be registered.

3C—Amendment of section 8—Registration

(1) Section 8(2)—after paragraph (b) insert:

(ab) if the person notifies the Minister that the person has a moral or religious objection to the provision of assisted reproductive treatment to another on the basis of the other's sexual orientation or gender identity, marital status, or religious beliefs—that fact; and

(2) Section 8—after subsection (2) insert:

(3) A person referred to in subsection (2)(ab) may, for the purposes of this or any other Act, be referred to as a registered objector.

Under clause 4(1) of this bill, a person is prohibited from refusing to provide assisted reproductive treatment to anyone else (to a person requesting it) on the basis of that other person's sexual orientation or gender identity, marital status or religious beliefs. That is what is in the bill at the moment. My amendments—although it is really only one substantive amendment, there are four in all that actually do it—will provide an exception to clause 4(1), which I have just outlined, that is currently in the bill, which is that a person who has a moral or religious objection to providing assisted reproductive technology to someone will be able to register this objection and be known as what my amendment will designate as a 'registered objector'. That is the term, a 'registered objector'.

This objection or that person's identity would be noted on the register kept under the act. The act already requires that a register is kept, and the bill reinforces that. This objector and their objection would be noted on the register alongside other particulars the act requires, that is, the person's name, their business name, business address and any other prescribed information.

Where the registered objector wishes to exercise their right to object to providing assisted reproductive treatment, they have an obligation to refer that person seeking assisted reproductive treatment to another provider. They cannot just say, 'No, I am not going to do this, I have a religious objection', or whatever it may be. Under my amendments, they are compelled to refer that individual to someone who will offer them the services they want.

It is important to note that the registered objector will be provided with protections under my amendments. Being a registered objector is not in itself a ground for finding a person to be unfit and improper in regard to the person's eligibility to be registered under the act. What this bill does is say that if somebody refuses to provide assisted reproductive technology to someone for whatever reason, on the basis of their sexuality, etc., then that person can be deregistered. That is what the bill actually says at the moment. My amendments would prevent that happening by providing these protections.

Moreover, being a registered objector and exercising the right to object (that is, not do it) will not contravene the Equal Opportunity Act 1984. If my amendments do not pass, a medical person refusing to offer this form of treatment (IVF, as we used to call it, or ART as we call it these days) will be subject to all the potential consequences under the Equal Opportunity Act. They are quite substantial, and I will go through them in a moment.

The purpose of the amendment is to accommodate people who are not comfortable providing such treatments based on their personal beliefs, whatever they may be. Such people should not be persecuted by the law, in my view, and it is important to re-emphasise that under my amendment, significantly, the patient seeking the treatment from the doctor would have to be referred to somebody who is happy to perform the treatment. I point out that there are similar provisions in the US and the UK in their assisted reproductive treatment acts and various pieces of legislation around that issue. They have various titles for them, including 'conscientious objector'. For some reason, our parliamentary counsel has called them a registered objector here.

I mentioned the significant consequences faced by a person—a doctor, I guess, or maybe a nurse, but typically a doctor—who refuses to provide this treatment under this bill, because they would then be subject to the equal opportunity penalties, if you like. They are numerous, and I will list a few of the penalties this bill proposes to make these people subject to. Under section 94(3) of the Equal Opportunity Act, for not complying with the notice from the commissioner (that is, the commissioner says you are in contravention of the act), they can face a maximum fine of $2,500.

Under section 95(4), for not complying or refusing to take part in conciliation proceedings, they can be subject to another fine of up to $2,500; that is, if the commissioner says, 'Well, you need to go and have conciliation and sort something out,' and the person refuses, that can be up to another $2,500. Under section 96(1)(a), in relation to an order by the tribunal to pay compensation of such amount as the tribunal thinks fit to a person for loss or damage arising from the contravention—what that loss or damage may be is not specifically spelled out—in this case, the person, or the doctor, I guess, may be required by the tribunal to make some sort of compensation payment for loss or damage.

Further, under section 96(3) of the Equal Opportunity Act, compensation may include damage to a person's feelings. If the doctor—again, typically a doctor, but it could be a nurse, a medical professional or some sort of treatment person—refuses to undertake the procedure, they may be ordered to make compensation, including compensation for damage to a person's feelings. I wonder how that could be quantified? I imagine that quite a range of possible financial quantums may be awarded in those circumstances and that, at the very least, it would be hard to get consistency about what hurting someone's feelings is worth. Is it $5 or $100,000? Who can say?

Under section 96(1)(b), in relation to an order by the tribunal where the respondent can be ordered to refrain from further contravention of the act, they can be told, essentially, 'Don't do this again,' and, if they refuse, they can be subject to the earlier provisions I mentioned, that is, $2,500. They can also face an order by the tribunal under section 96(1)(c), requiring the respondent or any other party to the proceedings to actually go ahead and perform the proceedings; that is, the tribunal can say, 'No, you have to go ahead and perform this procedure,' which I think would be the most contentious part.

There will be some people—doctors, nurses, whoever it may be—who would simply refuse. They would be a minority, a small minority perhaps, but I suspect that there will be some. What is the option for those people? When does it stop? They are subject to all these other provisions. One wonders if we are going to see a situation where these people can potentially face even prison terms. I hope not. This would result in a situation where a person is actually forced to provide ART to the patient, if I can put it that way, despite their personal beliefs and objections, and I certainly do not agree with that.

Under section 96(4) of the Equal Opportunity Act, a person who contravenes or fails to comply with an order of the tribunal can be fined up to $5,000. You can see that these are very substantial penalties for individuals who object, on whatever grounds, to performing these procedures. At the moment, that is not the case. At the moment, the Equal Opportunity Act specifically excludes these procedures—from people being subject to discrimination provisions under these procedures. That is, if somebody—a doctor or a nurse—refuses to conduct these procedures, under the Equal Opportunity Act at the moment they are able to do so. This bill, the surrogacy eligibility bill, removes that, and they will, essentially, be forced to do it. They will have no way of refusing, unless they are prepared to go down the path of facing the Equal Opportunity Tribunal.

This bill also makes compliance with that provision—that is, that they actually go ahead and perform the assisted reproductive procedure—a condition of their registration. According to this bill, the doctor or nurse can be deregistered, so it is a very substantial step. I imagine that there will be some doctors and some nurses—there will not be many, presumably, but there will be some—who may decide that they would rather be deregistered than go down the path of performing these procedures. It is a very substantial change from what we have at the moment.

I have not been able to determine the situation in other states; we are looking at that at the moment. Certainly, in the UK and the US there are protections in place for doctors and nurses who find themselves in those situations, so they are not subject to equal opportunity provisions. That is essentially what my amendment does and why I am moving it. It is a very important principle, the principle of what we might typically call religious objection. It may not be just religious people, of course; there may be others who are not religious in any way who have a certain view for some reason. I accept that will be a very small minority, but it is possible. I think it will mainly be people who have a religious objection and they will, in some cases, simply refuse to do it, whatever the consequences.

The question for this chamber is whether we want to compel them to do it. I do not, and obviously I will be supporting my amendment, which will not compel them to do it and which will give them the protection not to. I guess the question for members—and I think we are voting on this tomorrow—is whether they want to create a situation where doctors and nurses who have a genuine, conscientious objection, for whatever reason, whether you agree with their reason or not (you may not, and that is fine, too), are compelled then to go down that path and suffer the consequences. So, that is the question before us today, and they are essentially the issues that my amendment seeks to deal with. I think I have explained that reasonably clearly.

The Hon. I.K. HUNTER: I concur with the summary of the Hon. Mr Hood in terms of the impact of his amendments. They have the effect of allowing the registration of registered objectors under the Assisted Reproductive Treatment Act 1988. A registered objector can refuse the provision of assisted reproductive treatment to a person on the basis of a person's sexual orientation or gender identity, marital status or religious beliefs. In circumstances where assisted reproductive treatment is refused on such a basis, the registered objector must take steps to refer the person seeking assisted reproductive treatment to another person who is registered under the Assisted Reproductive Treatment Act 1988.

Thus far we agree, but no further. These amendments raise a number of concerns. The amendments propose to allow discrimination by registered objectors on the basis of a person's gender identity, marital status or religious beliefs. Section 22(1) of the Sex Discrimination Act 1984 (commonwealth legislation) provides that it is unlawful to discriminate against a person on the grounds of the other person's sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, or breastfeeding.

If state legislation is found to be inconsistent with commonwealth legislation, then pursuant to section 109 of the Australian Constitution, I am advised (and our lawyers will correct me if I am wrong) that the state legislation will be invalid to the extent of the inconsistency. This has been previously tested in Pearce v South Australian Health Commission (1996) 66 SASR 486 (I think that is the South Australian Supreme Court) and in McBain v State of Victoria (2000) FCA 1009 (Family Court of Australia, I expect that is) where, under respective state legislation, the restriction of in vitro fertilisation (IVF) treatment on the basis of marital status was declared inconsistent with the Sex Discrimination Act and thus invalid.

In summary, if the Hon. Dennis Hood's amendments are passed there is a significant risk of the provisions being found to be constitutionally invalid to the extent of their inconsistency with the provisions of the Sex Discrimination Act. I will leave that there for our lawyers to think about and respond to, perhaps tomorrow.

Finally, SA Health wrote to all providers of these ART/IVF services about this legislation, and my advice is that no opposition was submitted to the draft bill. I have not heard of any complaints of people wanting to be exempted from administering ART or IVF through their professional duties. Indeed, I suppose it would be very odd because the vast majority, if not all, of such medical administration is actually done by private businesses in the ART sector and I suppose it would hurt their market share if they were to restrict who they lawfully supplied services to. I suspect it is probably a moot point in that regard, but my stronger concern is the inconsistency that may be introduced in this legislation with the commonwealth legislation. For those reasons I will not be supporting the amendment.

The Hon. D.G.E. HOOD: I thank the minister for his response. I have two issues with regard to that. I am not doubting the minister's word that he has not had any direct correspondence—that he is aware of anyway—from anyone saying that they have any sort of issue with them performing the procedures themselves, but I think he could see the possibility of making the allowance that somebody would. Whilst it may not have happened to date, it is perfectly conceivable that someone down the track becomes aware that these provisions have changed and all of a sudden be compelled to provide these procedures against their will. I think it is entirely conceivable and, in fact, highly likely. I would be very surprised if we did not see that.

In reference to the minister's comment about this being constitutionally invalid, if that is the case then clearly our current act is constitutionally invalid because the Equal Opportunity Act 1984, section 5—Interpretation, provides:

(2) A reference in this Act or in the repealed Sex Discrimination Act 1975 to the provision of a service does not include, and will be taken never to have included, the carrying out of either of the following fertilisation procedures:

(a) artificial insemination; or

(b) the procedure of fertilising an ovum outside the body and transferring the fertilised ovum into the uterus.

If that is the case and if what the minister has said is true, and I am not doubting his word, then clearly our current act is in exactly the same position. All my amendments do is provide a protection for those individuals, which I accept will be a small number and there is no question about that, who simply do not want to do this for whatever reason. My amendments will allow them the freedom to say, 'No, but I'm passing you onto somebody who will do it for you. Go with my best wishes.'

The Hon. I.K. HUNTER: Before the Hon. Mr Wade makes a contribution, can I just say that all jurisdictions—and I am not sure if everybody is aware of this, but we should be, I suppose—states and territories have been given an exemption from the commonwealth's Sex Discrimination Act until July of this year to give us time to bring our various state acts into compliance with the commonwealth's Sex Discrimination Act. That is what we are doing in this bill: updating the Equal Opportunity Act, through this process, to bring ourselves into compliance with the commonwealth's position.

Although we could, I think it would be very poor practice for this parliament to legislate for an act that is not compliant with the commonwealth's Sex Discrimination Act, given that we have been given a time frame to bring ourselves into compliance, as have all other jurisdictions. That is why this is being done. I take the point of the Hon. Mr Hood that currently we are not compliant. We know that and so does the commonwealth, and that is why we have been given this exemption period to bring ourselves into compliance.

The Hon. S.G. WADE: I thank the Hon. Mr Hood and the minister for further unpacking that for us. As I indicated in my second reading contribution, I believe that surrogacy services should be available to a broader range of people, but to say that a person has a right to services does not mean that they have the right to get them from all service providers in that sector. I completely agree with the Hon. Dennis Hood that it is highly likely that there will be some service providers in the assisted reproductive technology treatment space who will not feel comfortable with the provision of services in some of the circumstances being foreshadowed.

We have had this discussion about what has happened in other states and jurisdictions in relation to ART, but I am also reminded of the fact that we already allow for conscientious objection in medical services through the Criminal Law Consolidation Act in section 82A, which deals with the medical termination of pregnancy. It is not an equal opportunities legislation, but even without registration it gives medical practitioners the right to conscientious objection. It provides:

(5) Subject to subsection (6), no person is under a duty, whether by contract or by any statutory or other legal requirement, to participate in any treatment authorised by this section to which he has a conscientious objection, but in any legal proceedings the burden of proof of conscientious objection rests on the person claiming to rely on it.

In my considerations over the next night, I certainly will not be backing away from my belief that people are entitled to services, but I do not necessarily think that your right to a service means that everybody is obliged, under pain of law, to provide it to you.

The Hon. R.I. LUCAS: I thank the Hon. Mr Wade for that, because I have followed at a distance what is at times a quite furious debate in Victoria in relation to the same issue. I am not sure whether the law was drafted similarly there, but there has been a considerable number of court cases where various medical practitioners were refusing to provide termination of pregnancy services and there were considerable legal arguments in relation to the position. There was clearly provision for conscientious objection, if we can put it that way, but it was being tested at law by those who opposed it.

I am not sure what the ultimate resolution of that was, and I thank the honourable member for highlighting our position. I found it very useful to hear the arguments for and against, so that we can reflect on this overnight. The minister introduced the element of his argument, which I have not seen referred to in any of the second reading speeches, that we are making all of these changes because we are under deadline from the commonwealth to make our laws compliant 'by July this year', he said. I assume that is July of next year—July 2017?

The Hon. I.K. Hunter: My reference was for this year.

The Hon. R.I. LUCAS: July 2016? So, we are actually late?

The Hon. I.K. Hunter: Yes.

The Hon. R.I. LUCAS: I am wondering whether the minister or the Attorney-General's office are in a position to email to members a copy of that requirement? I have not seen that debated in the House of Assembly debate or indeed in the second reading explanation for the minister. He has introduced it in response to this particular amendment. I would be interested to know the nature and the context of the dictate from the commonwealth that we have to do certain things by a certain time, which was July this year, and what our state's wriggle room is in relation to that. I would be surprised if it is as definitive as that.

I suppose in the end it comes down to an issue that if our law is in conflict with the federal law, there is a chance that it might be struck down if it is so challenged. But, states may well still choose to have their differences from the commonwealth legislation and test the legal waters from that viewpoint. If the minister was able to provide to members overnight, by way of email, a copy of that letter, directive or decision, or whatever it is, that would certainly assist some of us in considering the Hon. Mr Hood's amendment overnight.

The Hon. I.K. HUNTER: My advice is that exemption was in regulation at the commonwealth level, so we will look at that for you or try to get a second reading speech, for example. I am also advised that it was mentioned or agitated in the SALRI report. It does not immediately spring to mind, but I am told that it was, so we will find that for you and try to get it to you this evening.

The Hon. P. MALINAUSKAS: I have what is hopefully a simple question. If the Hon. Mr Hood's amendments were to fail, would that mean, in the event of a surrogacy, that a medical practitioner who was opposed to such a procedure for a same-sex couple would be compelled by law to provide that service?

The Hon. I.K. HUNTER: My understanding—and the Hon. Mr Hood could correct me if I am wrong—is that this amendment only relates to the provision of in vitro technology (ART). Surrogacy is not impacted by this; it is ART.

The Hon. T.A. FRANKS: I also thank the mover for his explanation, which I think was actually most informative. I am really interested to see the other jurisdictions where this has been applied, and that would be useful given that people are seeming to lean to the idea of receiving information in the next few hours to inform the debate tomorrow

In particular, I am interested in why 'religious beliefs' was one of the criteria under 3C(1)(ab) that could be included for somebody to withhold their service and register their conscientious objection. What sort of situations would that entail? Would a person be able to refuse service because somebody was Muslim, or Christian, or Hindu? Where did that thinking come from, and does that exist in other jurisdictions?

The Hon. D.G.E. HOOD: To be honest, this is something that, when we were discussing it, I saw no reason to include, but I was advised by parliamentary counsel that it should be included because there are overseas jurisdictions where there have been court cases based on people's religious views that were somehow objected to. If the member was seeking to remove that particular part of my amendment, I am certainly open to a discussion on that.

I must admit, that one was a little surprising to me as well, but you know the process in here. We submit our objective to parliamentary counsel, and they return with the wording. I think the member raises a reasonable point. It is something that is not quite clear to me either, to be frank, but the reason given to me was that there have been cases overseas where people have been compelled, under their provisions, to offer procedures to individuals they had decided not to, the reasons for which include their own religious beliefs.

I think that is highly unlikely here. It would probably more likely be a person of, say, the Islamic faith or something like that who did not want to provide those services to a same-sex couple. I think, in the real world, that is the most likely situation, but if the member wishes to amend my amendment, I am certainly open to that.

The Hon. I.K. HUNTER: Just listening to the debate, another thought has occurred to me which we might want to cogitate about overnight. If the Hon. Mr Hood is successful in his amendment, will that put a service provider—and they are probably not lawyers; they are probably qualified medical practitioners—in the invidious position of having to decide whether they obey the state law or the federal law, because they will be mutually inconsistent?

How would we expect a service provider to be able to make that distinction and decision for themselves? At the same time, are we opening up then a person who does deny service to an individual or couple, in accordance with the state amendment the Hon. Mr Hood wants to move, to challenges at the Australian Human Rights Commission or even in the High Court? Is that somewhere we want to be?

The Hon. K.L. VINCENT: If I may ask a couple more questions of the mover on top of those that have already been asked, which were certainly questions I had as well. The Hon. Mr Hood mentioned that he is moving this amendment on the assumption that there are going to be some people, however many that might be, who may object in the future to providing these services to certain people or certain groups on the grounds of their personal beliefs. My first question is: has the mover actually been contacted by anyone who has requested this amendment who objects to a future where they might have to provide these services to certain groups or certain people?

My second question is: what sort of impact does the honourable member expect this amendment to have should it pass, given that, even if a person can object to providing the services themselves, they are required to refer that person on to someone who will? If I am reading this correctly, it will not actually stop people from accessing ART services; it simply stops certain people from having to do it. What is the real-world impact of the amendment? Those are my two questions.

The Hon. D.G.E. HOOD: Firstly, with respect to whether I have had any personal contact with anyone who has requested this, the answer to that is no, but let me explain because it is a bit more complicated than that. I am aware of a doctor who works in this field—not in South Australia but in another state—and I contacted him to paint this scenario. In his state, we understand that, under this bill as it is being proposed, he would not be forced to provide those services. I do not know this man well. I have never actually met him, but I have spoken to him on the phone. He said to me that he would have to really consider whether he just simply refused to do it.

I explained that there are very serious consequences for such decisions, and I took him through some of the things I have just outlined to the chamber, and his response was shock. He was quite surprised that he could find himself in that situation even to the point of deregistration. This is an individual who has been in that role for, I understand, around 15 to 20 years, so quite an extended period of time. I think ART has only been around for roughly that long, so he is somebody who has been there for quite some considerable time. That is my answer to the first part of your question, the Hon. Ms Vincent.

Regarding the second part of your question, you are quite right: the impact in the real world will be almost nothing because an individual who has their own reasons for not performing a particular procedure on somebody will be compelled under my amendments. They will not have a choice; they will be required to refer them to someone else. That couple or individual goes to another doctor, another facility, or whatever it is, and they have their procedure there, so no harm is done in that sense.

The difference is to the individual who does not want to provide the service because you can put them in a very difficult situation, should my amendments fail and the bill pass unamended, in that they are forced to do something against their conscience. Whether people agree with it or not is a whole different matter, but for their own reasons they have decided that they do not want to do it. The real heart of this question is: should the law compel them to do it anyway? I say no, and that is why I moved my amendments. I am not saying you necessarily feel otherwise, the Hon. Ms Vincent but, if members feel otherwise, then they have the opportunity to vote my amendment down. That is my strong position.

I would ask you to put yourself in the position of somebody who has a particularly strong feeling about something. Let's be frank, usually these are religious people who have a particularly strong feeling about something, and they just do not want to do it. It goes against their own conscience of what they believe to be right and wrong, regardless of what anyone else might think. The question is: should we be compelling them to do it? I say no.

The Hon. T.A. FRANKS: I thanked the member before for his response, particularly on the religious beliefs criteria for the conscientious or moral objection. Certainly, that does raise alarm bells with me, and I also will consider the options for further amendment.

I ask the mover: would he consider the onus being put on the person who is the conscientious objector to make that known well before a person comes to them in quite a difficult situation seeking a service that is an incredibly personal, incredibly life-changing decision? Would it not be better for all if that provider had to make it clear up-front, and now in public, that they do not provide these services before anyone even gets on the phone or walks into their office?

The Hon. D.G.E. HOOD: I thank the Hon. Tammy Franks for her question. It is a very good point, and I agree with her. As I recall when I was preparing for this amendment, the UK has a requirement—there was a very famous legal case going through their courts on this issue, and it may still be—for clinics to state if they do not provide services to certain people, for whatever reason. So, I would support an amendment to that fact.

The way this bill is structured is that the minister is responsible to keep a register of service providers and, as my amendment would require, also to keep a list of registered objectors. The minister would know who those people are. The minister could then create a regulation, I presume, whereby these people would be required to identify themselves up-front so that you do not get this situation where a same-sex couple goes to a particular clinic seeking ART services and gets partly down the process, to all of a sudden find out that their doctor or nurse is not going to do it for some reason.

I think the Hon. Ms Franks has made a valid point and there should be a requirement. If the minister was to either move a regulation to that effect, should this bill pass—I do not know if an amendment would be required; I suspect there would be regulation—then it would have my support.

The Hon. J.S.L. DAWKINS: I think it has been constructive for us to have this discussion before we consider our position overnight, and I take on board what the Hon. Mr Hood said about regulations in relation to the register. I also go back to the minister's assurance to me that the regulations will be pursued by the Department of the Premier and Cabinet.

I am not sure whether the Hon. Mr Hood had a chance to listen to or read my second reading speech, but the reality is that these amendments that have been proposed in the other place are trying to amend aspects of the act that do not exist, because the Attorney-General has not developed the amendments to make the register exist. When you refer to regulations being developed to further that work, if the Department of the Premier and Cabinet take that on, hopefully they will be much quicker at it than the Attorney-General, who has taken 17 months without doing anything.

The Hon. S.G. WADE: Will the minister reflect on, or even take on notice, clarification of whether clause 5 of this bill relates to surrogacy arrangements? I think he advised that it does not, but my understanding of the Assisted Reproductive Treatment Act 1988 is that surrogacy arrangements do come under the definition of an assisted reproductive treatment.

The Hon. I.K. HUNTER: My advice in response to the Hon. Mr Wade's question is that this part of the act is referring to the reproductive treatment act. Surrogacy comes later in the bill, but my advice is that the effect of the amendment moved by the Hon. Mr Hood is to apply to assisted reproductive treatment.

The Hon. R.I. Lucas: But surrogacy would require ART, wouldn't it?

The Hon. I.K. HUNTER: It certainly will, but it is not dealt with under this part of the act that we are talking about right now.

The Hon. R.I. LUCAS: I accept that but, ultimately, they are interrelated. I am not the expert here but, if you are going to go through a surrogacy arrangement or treatment, you will use ART. So, if you are refusing to provide ART services, you are potentially refusing to assist a couple looking for a surrogacy agreement.

The Hon. P. MALINAUSKAS: That is an important point that goes to the question I asked earlier. I simply want to understand this: if the Hon. Mr Hood's amendments were to fail, does that leave it open for medical practitioners in this field who might have a moral objection, for whatever reason, to providing these services to a particular cohort of people to be compelled by law to facilitate those procedures? Maybe I could put it in the inverse, for clarity. If the Hon. Mr Hood's amendments fail, will medical practitioners in this field have the liberty to decide not to provide services of this nature to people who are non-heterosexual couples?

The Hon. I.K. HUNTER: This part of the bill is essentially putting ART services into the realms of the Equal Opportunity Act. The Equal Opportunity Act currently exempts it and this removes that exemption, but do not forget the discussion we had earlier. Are we going to put people in a position where state legislation says they may do one thing while federal legislation—the commonwealth Sex Discrimination Act, I think—currently says another thing?

Is that what we want to do in this place: create legislation, ignoring the commonwealth legislation, not making ourselves compliant with that, and putting individual practitioners, who probably will not be lawyers, into the invidious position of deciding, 'Do I obey the state act and take advantage of that exemption, or do I obey the federal act and do what the commonwealth Sex Discrimination Act requires me to do?' I think this is something we need to weigh up pretty heavily, because creating legislation in this place, knowing what the federal legislation is and knowing we need to become compliant with it, is poor practice.

The Hon. S.G. WADE: One of the issues that I was hoping to unpack in the triangular discussion with the Hon. Rob Lucas is the fact that the religious objection might have nothing to do with the customer, for want of a better word. Someone may have a religious objection to the technique. My understanding is that there are significant religious traditions in this nation that have concerns with the technique. Even before this bill came before us, the inconsistency with the federal sex discrimination legislation raised issues for people who have problems with the technique. Again, I think we need to think about that overnight. I think the minister has already given an undertaking to the Hon. Robert Lucas that we might have some understanding of what the commonwealth is requiring of us.

The Hon. I.K. HUNTER: I am certainly seeking that understanding about the commonwealth and the Sex Discrimination Act. In relation to the Hon. Mr Wade's thinking that some people may in fact not discriminate against a homosexual couple but they might discriminate against the technique used, it is possible, I suppose, but I would imagine nobody working in the field of reproductive medicine would have any opposition to a technique that is basic to reproductive medicine. I would have thought they would not go into that field if they had objections to reproductive technology.

The Hon. T.A. FRANKS: This may be along the same lines as the other members' questions. The amendment states:

If the person notifies the Minister that the person has a moral or religious objection to the provision of assisted reproductive treatment to another on the basis of the other's sexual orientation or gender identity, marital status, or religious beliefs…

That 'to another', that person, I assume is a female who will be carrying the baby. If that person is a straight, white, Christian, married woman, carrying a baby for her gay brother and his partner, will the conscientious objection be able to stand?

The Hon. D.G.E. HOOD: That is an interesting question. I thank the honourable member for her question.

The Hon. T.A. Franks interjecting:

The Hon. D.G.E. HOOD: I am sure it is. The best answer I can give is I think it is probably a matter for the courts. That is a very unlikely scenario, I would imagine, but it is possible—

The Hon. T.A. Franks: It's common.

The Hon. D.G.E. HOOD: Okay; there you go. Presumably that is a matter for the courts. I think I have made clear enough to everyone now that the basic premise of my amendment is that the individual can object based on those criteria outlined. If my amendment does not pass, then they are not able to object lawfully, and they are subject to all the consequences that I have been through. I am sure that is not a very good answer to the member's question, but I think it is probably the best answer I can give.

The Hon. P. MALINAUSKAS: My question is to the government in respect to this bill. I am simply trying to understand. I acknowledge minister Hunter's articulation of a potential issue that might be created in terms of conflict with federal law. He is right to foreshadow that as a potential issue and ask that members take that into account when formulating a view regarding the Hon. Mr Hood's amendments, but it is entirely foreseeable, is it not, that someone in South Australia who is currently practising reproductive medicine is enjoying, in effect, the full protection of the law in respect to not providing those services to same-sex couples, because to do so would be illegal. Once that is changed, I am trying to understand to what extent they have the ability to continue to practise the law in the way that is currently the case in South Australia.

The Hon. I.K. HUNTER: My advice is that the exemption that was provided to all jurisdictions for legislation that is not compliant with the commonwealth Sex Discrimination Act no longer exists. My advice is it expired in July 2016, but we will check that as we get the information back. There is no protection or exemption at a federal level for any practitioners in any jurisdictions, vis-a-vis the commonwealth legislation currently.

The Hon. P. MALINAUSKAS: I am simply looking for a position from the government in regard to this. I am not trying to be cute or unreasonably persistent; I am trying to understand. Is it possible that there is someone currently in the state of South Australia who is practising reproductive medicine and is not currently providing those services to a homosexual couple because now they are not allowed to, but this bill, if it succeeds, would allow them to do that, and in the absence of Mr Hood's amendment succeeding, that person would not have the ability to choose not to provide those services on any basis to a homosexual couple?

The Hon. I.K. HUNTER: As I said previously, when we canvassed this legislation with all providers in the state, no objections were raised by any of them, as far as I am aware. Of course, the answer is yes. If you look at the beginning of the bill, what it does is it takes away the exemption that is currently in the Equal Opportunity Act and requires that ART services be provided as other services would be provided, i.e. in a non-discriminatory way.

The Hon. T.A. FRANKS: Can the minister clarify whether or not these services are currently available to same-sex couples where one of them is infertile?

The Hon. I.K. HUNTER: I do not have specific health advice with me right now, but my understanding is that if a same-sex lesbian couple, for example, is medically infertile, then they can get access as single women, notionally—which is not the ideal outcome; they would like to be treated as a couple—to exactly the same treatment. That is my advice from a previous life when I was on the Social Development Committee. I reiterate that I do not have health advice with me right now.

The Hon. K.L. VINCENT: I want to ask a follow-up question from an earlier question from Ms Franks about the situation where, for example, a woman of no particular religious belief might be undergoing ART but might be doing so on behalf of a relative or a friend who is unable to have children of their own because of the gender of their partner or another issue.

Given that an ART service provider can register an objection to providing services that may result in same-sex couples having a baby, for example, would this amendment effectively force people to disclose the reason that they are seeking ART? For example, in the situation where a woman, who might happen to be heterosexual, is undergoing treatment to help a homosexual couple to become a family, is she more or less forced to disclose that so that the conscientious objector does not take part in providing services that result in a situation that they do not agree with, morally or religiously or whatever it might be?

If a person does object to providing such services, in a situation where they might later find out that they have provided services to someone who might be heterosexual but is doing it on behalf of someone else, is that conscientious objector entitled to any compensation—compensation is the only word that comes to mind—because they have unwittingly done something to which they would usually object? Does that make sense?

The Hon. D.G.E. HOOD: Yes, it does. I thank the honourable member for her questions. The short answers are no and no; that is, there is nothing in my amendments that compels anyone seeking treatment to disclose their personal circumstances in any specific way. It is certainly not my intention for that to be the case either, and it is certainly not in the amendments. With respect to the second part—sorry, I have forgotten.

The Hon. K.L. VINCENT: What will happen to a person who will be eligible for compensation if they have unwittingly undertaken a service that they would not agree to but later finds out that they have?

The Hon. D.G.E. HOOD: I thank the honourable member for the clarification. No, it is not my intention and, frankly, I am not sure that would be appropriate. I do not think it would be.

The Hon. I.K. HUNTER: That might be an opportune place for us to leave the discussion. What the Hon. Kelly Vincent was teasing out was that the amendments of the Hon. Mr Hood could unintentionally create a loophole which encouraged people to lie about what their services were ultimately aimed at so that they could get access to those services. With that, sir, I think we have plenty to be getting on with for tomorrow, so I move that we report progress.

Progress reported; committee to sit again.

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