George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Hansard source

I move amendment (2) on sheet 5617 revised:

(2)   Government amendment (53), proposing new Schedule 3A, omit item 6, substitute:

6  Subsection 60H(1)

Repeal the subsection, substitute:

        (1)    If:

             (a)    a child is born to a woman as a result of the carrying out of an artificial conception procedure while the woman was married to another person (her husband); and

             (b)    either:

                   (i)    the woman and her husband consented to the carrying out of the procedure, and any other person who provided genetic material used in the procedure consented to the use of the material in an artificial conception procedure; or

                  (ii)    under a prescribed law of the Commonwealth or of a State or Territory, the child is a child of the woman and of her husband;

then, whether or not the child is biologically a child of the woman and of her husband, for the purposes of this Act:

             (c)    the child is the child of the woman and of her husband; and

             (d)    if a person other than the woman and her husband provided genetic material—the child is not the child of that person.

     (1A)    If:

             (a)    a child is born to a woman as a result of the carrying out of an artificial conception procedure while the woman was a de facto partner of another person (the other person in the relationship); and

             (b)    either:

                   (i)    the woman and the other person in the relationship consented to the carrying out of the procedure, and any other person who provided genetic material used in the procedure consented to the use of the material in an artificial conception procedure; or

                  (ii)    under a prescribed law of the Commonwealth or of a State or Territory, the child is a child of the woman and of the other person in the relationship;

then, whether or not the child is biologically a child of the woman and of the other person in the relationship, for the purposes of this Act:

             (c)    the child is the child of the woman, and is deemed to be the child of the other person in the relationship; and

             (d)    if a person other than the woman and the other person in the relationship provided genetic material—the child is not the child of that person.

This, the second of the opposition’s two amendments to the bill, proposes to replace section 60H(1) of the existing act with words alternative to the words proposed by the government. It does that by proposing a new section 60H(1) and a new section 60H(1A), which deal with the circumstances of children who come into the world as a result of an artificial conception procedure.

Before I go through the detail of the amendments, let me explain what the opposition’s approach to this particular aspect of the bill has been, because Senator Pratt a few moments ago made some observations in anticipation of this amendment which were utterly wide of the mark and could not for a moment be rationally countenanced by anyone. The opposition’s approach, which has by and large reflected a spirit of bipartisanship with the government on this bill, has been, in this series of reforms, to respect four principles, which do not always sit perfectly comfortably together.

The first of those principles is to acknowledge and respect the unique and privileged status of marriage among all domestic relationships and to acknowledge that a marriage can only exist between a man and a woman. As to the latter proposition, there has been no cavil from the government.

The second principle which has informed the opposition’s approach to this legislation—as I outlined when I spoke on the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—Superannuation) Bill 2008 the evening before last—is our commitment to the principle that people in homosexual relationships should be absolutely protected from discrimination or any disability arising from differential treatment on account of their sexuality. The way in which one reconciles the unique status of marriage as a relationship between a man and a woman and the need to protect homosexual people from any discrimination against them in their relationships on the ground of their sexuality has been to equate the domestic de facto relationships of opposite-sex couples with the domestic relationships of homosexual couples. And that principle, as we understand it, has informed the government thinking as well.

The third principle which the legislation reflects, and to which the opposition subscribes, is to accept the appropriateness of having all relationship breakdowns dealt with by a single court, the Family Court of Australia, or the Federal Magistrates Court in exercising its jurisdiction under the Family Law Act, according to a common set of principles.

This is legislation which had its genesis with the Howard government when the references of power under which this legislation proceeds were originally arranged. So it was in fact the idea of the previous government that de facto relationship disputes should be brought into the Family Court of Australia or the Federal Magistrates Court, where appropriate. The significant further development to the principle which has been effected by this government, with the opposition’s support, is to extend that coverage to both same-sex and opposite-sex de facto relationships.

The fourth principle that informs the opposition’s thinking is the importance of ensuring children are not less favourably treated in relationship breakdowns, regardless of the nature of the household—whether it is a married household, whether it is an opposite-sex de facto household or whether it is a same-sex household. Children, in whatever the circumstance of the relationship may be, should not be less favourably treated. It is a simple principle of justice that that cannot be countenanced or allowed to happen.

In reconciling those four principles, it seems to the opposition that there is a more appropriate way of dealing with section 60H, which we accept needs to be amended so as to deal with the situation in particular of same-sex couples who may decide to bring a child into the world through an artificial conception procedure in relation to one of the two women in such a relationship. The approach of the government has been to homogenise all of the different categories of relationships—marriages, opposite-sex, de facto and same-sex relationships—into a single category. That is of concern to us.

Senator Boswell made a contribution earlier on in which he reflected with, I think, great passion the sensitivities that many more conservative members of the community feel, in particular in relation to the issue of—to use a shorthand expression—gay parenting. I have made it as clear as can be on behalf of the opposition that we absolutely and without hesitation support the government’s attempts to remove discrimination against gay couples. I could not have been more emphatic about that than I was in the speech that I gave in this place the night before last. But, equally, in achieving and moving towards that beneficial law reform, it would be reckless of us to fail to heed the sensitivities and concerns of the very large number of Australians who for religious or ethical reasons find the notion of gay parenting quite a confronting thing to grasp and for whom it sits very uncomfortably.

The opposition therefore suggests a way through this which preserves the principle of non-discrimination in this particularly difficult area but nevertheless respects the sensitivities that were reflected, for example, by Senator Boswell in his contribution—that is, in dealing with the issue in section 60H, to make a distinction between married relationships, as we propose in our new section 60H(1), and de facto relationships, as we would propose in section 60H(1A). De facto relationships would of course incorporate both opposite-sex and same-sex relationships. By doing that we avoid the risk of, as I said earlier, homogenising all forms of domestic relationships so that, for example, marriages and same-sex de facto relationships are treated as if they were the same thing. They are not the same thing and the government does not seek to make them the same thing, because there is no proposal before the parliament to amend the Marriage Act and change the definition of a marriage as being a relationship between a man and a woman.

The second way in which the opposition respectfully suggests that this difficult issue is best dealt with is by removing the word ‘parent’ entirely from section 60H, section 60H(1) and section 60H(1A). In the amendment that we offer to the Senate, the word ‘parent’ is not used in relation to either de facto or indeed married relationships. Nothing is lost by that other than the offence to the sensitivities of more conservative Australians that the idea of gay parenting might present. What this is about, as I said at the start, is the rights of children. It is unambiguously the case in the opposition’s amendment that children of all types of households—married households, opposite-sex de facto households and gay households—will be treated equivalently. There will be no discrimination; there will be no distinction made. The observations that Senator Pratt made in her contribution before were, frankly, dead wrong and quite irrational. There is no logical or legal difference in the treatment of children among those different categories of household. But by the avoidance of the use of the word ‘parent’ in relation to all categories, we avoid giving offence to the sensitivities of some of our more conservative fellow Australians.

I conclude on that point: when, particularly with bipartisanship, legislation that does acknowledge and usher into being very important social change is passed through the parliament, it is in everyone’s interest to make sure that the concerns not just of the activists but of people of a more conservative disposition are taken into account and respected. Given that there is no respect whatsoever in which the right to equal treatment of gay people is not respected by this legislation and that there is no respect whatsoever that the right to equal treatment of children, in all varieties of households, is not respected by the opposition’s amendment, it would seem prudent to bring about this important social change in the rather more sensitive way that the opposition commends.