Senate debates

Thursday, 16 October 2008

Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008

In Committee

Bill—by leave—taken as a whole.

3:35 pm

Photo of Joe LudwigJoe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | | Hansard source

I foreshadow that the government will be moving amendments to this bill shortly. We will be seeking to amend the parenting presumption in the Family Law Act to allow children of same-sex relationships to be recognised as a ‘child of the relationship’ under the act.

We thank the Senate Standing Committee on Legal and Constitutional Affairs and the Human Rights and Equal Opportunity Commission for its Same sex: same entitlements report. Both the legal and constitutional affairs committee and HREOC, in that report, provided insightful assistance to the committee. They also provided assistance to the government in looking at this area. It allowed us to move quickly on the Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008, which is now in committee.

The second tranche of amendments will allow couples to opt in to the new regime where they have separated before commencement but have not resolved their property issues. The third area will address an issue raised by the Family Court, which is to allow for ‘use or occupancy’ orders that are regularly made for married couples. Finally, the Senate committee recommended that the government accept a range of largely technical amendments proposed by the family law section of the Law Council.

Photo of Alan FergusonAlan Ferguson (SA, Deputy-President) Share this | | Hansard source

Senator Ludwig, could you perhaps seek leave and move those amendments together as they are the first on the running sheet.

Photo of Joe LudwigJoe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | | Hansard source

by leave—I move amendments (1) to (6), (8) to (11), (18) to (33), (39), (47) to (52) and (54) on sheet ZA242 revised:

(1)    Clause 2, page 2 (table item 2), omit the table item, substitute:

2. Schedule 1, items 1 to 4

A single day to be fixed by Proclamation.

However, if any of the provision(s) do not commence within the period of 6 months beginning on the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period.

2A. Schedule 1, item 5

The day on which this Act receives the Royal Assent.

2B. Schedule 1, items 6 to 20

At the same time as the provision(s) covered by table item 2.

2C. Schedule 1, item 21

The day on which this Act receives the Royal Assent.

2D. Schedule 1, items 22 to 93

At the same time as the provision(s) covered by table item 2.

(2)   Clause 2, page 2 (after table item 6), insert:

6A. Schedule 3A

The day on which this Act receives the Royal Assent.

(3)    Schedule 1, item 4, page 5 (line 25), before “the property”, insert “the distribution of”.

(4)    Schedule 1, item 4, page 5 (line 27), before “the vested”, insert “the distribution of”.

(5)    Schedule 1, item 18, page 9 (line 6), omit “or de facto relationship”, substitute “, de facto relationship or former de facto relationship”.

(6)    Schedule 1, item 45, page 20 (lines 28 and 29), omit “binding Part VIIIAB financial agreement”, substitute “Part VIIIAB financial agreement (that is binding on the person)”.

(8)    Schedule 1, item 50, page 23 (after line 31), at the end of the definition of de facto financial provisions in subsection 90RC(1), add:

           ; (d)    subsection 114(2A).

(9)    Schedule 1, item 50, page 24 (line 21), after “State”, insert “or Territory”.

(10)  Schedule 1, item 50, page 24 (line 27), omit “binding Part VIIIAB financial agreement”, substitute “Part VIIIAB financial agreement that is binding on the parties”.

(11)  Schedule 1, item 50, page 27 (line 18), omit “binding Part VIIIAB financial agreement”, substitute “Part VIIIAB financial agreement that is binding on the parties to the agreement”.

(18)  Schedule 1, item 50, page 45 (lines 14 and 15), omit “binding Part VIIIAB financial agreement”, substitute “Part VIIIAB financial agreement (that is binding on the person)”.

(19)  Schedule 1, item 50, page 45 (line 23), omit “binding financial agreement”, substitute “financial agreement (that is binding on the person)”.

(20)  Schedule 1, item 50, page 57 (lines 26 and 27), omit “binding Part VIIIAB financial agreement”, substitute “Part VIIIAB financial agreement that is binding on them”.

(21)  Schedule 1, item 50, page 58 (line 21), omit “binding Part VIIIAB financial agreement”, substitute “Part VIIIAB financial agreement that is binding on them”.

(22)  Schedule 1, item 50, page 59 (line 12), before “de facto relationship”, insert “former”.

(23)  Schedule 1, item 50, page 59 (line 15), before “de facto relationship”, insert “former”.

(24)  Schedule 1, item 50, page 59 (line 16), omit “binding Part VIIIAB financial agreement”, substitute “Part VIIIAB financial agreement that is binding on them”.

(25)  Schedule 1, item 50, page 59 (line 20), before “de facto relationship”, insert “former”.

(26)  Schedule 1, item 50, page 59 (line 27), before “de facto relationship”, insert “former”.

(27)  Schedule 1, item 50, page 60 (lines 19 and 20), omit “binding Part VIIIAB financial agreement”, substitute “Part VIIIAB financial agreement that is binding on them”.

(28)  Schedule 1, item 50, page 61 (line 4), omit “Note”, substitute “Note 1”.

(29)  Schedule 1, item 50, page 61 (after line 6), at the end of subsection 90UE(1), add:

Note 2:     Part 2 of Schedule 1 to the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 deems certain agreements, made under a law of a State that is or becomes a participating jurisdiction, or made under a law of a Territory, to be Part VIIIAB financial agreements.

(30)  Schedule 1, item 50, page 61 (line 31), omit “binding Part VIIIAB financial agreement”, substitute “Part VIIIAB financial agreement that is binding on the parties to the agreement”.

(31)  Schedule 1, item 50, page 62 (lines 28 to 30), omit “(or last signed by a spouse party to the agreement, if both spouse parties to the agreement have signed)”.

(32)  Schedule 1, item 50, page 63 (line 3), omit “binding Part VIIIAB financial agreement”, substitute “Part VIIIAB financial agreement that is binding on the parties to the agreement”.

(33)  Schedule 1, Part 1, page 80 (after line 9), at the end of the Part, add:

84A After subsection 114(2)

Insert:

     (2A)    In a de facto financial cause (other than proceedings referred to in, or relating to, paragraph (e) or (f) of the definition of de facto financial cause in subsection 4(1)) the court may:

             (a)    make such order or grant such injunction as it considers proper with respect to the use or occupancy of a specified residence of the parties to the de facto relationship or either of them; and

             (b)    if it makes an order or grants an injunction under paragraph (a)—make such order or grant such injunction as it considers proper with respect to restraining a party to the de facto relationship from entering or remaining in:

                   (i)    that residence; or

                  (ii)    a specified area in which that residence is situated; and

             (c)    make such order or grant such injunction as it considers proper with respect to the property of the parties to the de facto relationship or either of them.

Sections 90SB and 90SK apply in relation to an order or injunction under this subsection in a corresponding way to the way in which those sections apply in relation to an order under section 90SM.

Note 1:     This subsection does not apply to proceedings referred to in paragraph (g) of the definition of de facto financial cause that relate to proceedings referred to in paragraph (e) or (f) of that definition.

Note 2:     The same requirements in sections 90SB (length of relationship etc.) and 90SK (geographical requirements) for section 90SM orders must be satisfied for orders and injunctions under this subsection.

(39)  Schedule 1, item 89, page 85 (line 4), after “VIIIB”, insert “, and subsection 114(2A),”.

(47)  Schedule 1, item 91, page 86 (lines 38 and 39), omit “binding Part VIIIAB financial agreement”, substitute “Part VIIIAB financial agreement that is binding on them”.

(48)  Schedule 1, item 92, page 88 (lines 15 and 16), omit “binding Part VIIIAB financial agreement”, substitute “Part VIIIAB financial agreement that is binding on them”.

(49)  Schedule 3, item 16, page 101 (lines 24 to 26), omit “(or last signed by a spouse party to the agreement, if both spouse parties to the agreement have signed)”.

(50)  Schedule 3, item 17, page 102 (line 3), omit “binding financial agreement”, substitute “financial agreement that is binding on the parties to the agreement”.

(51)  Schedule 3, item 17, page 102 (line 6), omit “binding financial agreement”, substitute “financial agreement that is binding on the parties to the agreement”.

(52)  Schedule 3, item 30, page 104 (line 6), omit “binding financial agreement”, substitute “financial agreement that is binding on the parties to the agreement”.

(54)  Schedule 4, page 109 (before line 5), before item 1, insert:

1A Paragraph 60I(5)(a)

Omit “the date fixed by Proclamation for the purposes of this paragraph”, substitute “1 July 2008”.

Note:                  The heading to subsection 60I(5) is altered by omitting “first proclaimed date” and substituting “30 June 2008”.

1B Subsection 60I(6)

Omit “the date fixed by Proclamation for the purposes of this subsection”, substitute “1 July 2008”.

Note:                  The heading to subsection 60I(6) is altered by omitting “second proclaimed date” and substituting “1 July 2008”.

These amendments are largely technical and relate primarily to drafting issues, many of which were raised by the family law section of the Law Council of Australia. I thank the family law section for their input. As I said earlier in my remarks, the government appreciates the work done by both the Standing Committee on Legal and Constitutional Affairs and the family law section of the Law Council. During my time in opposition and in government I have noted that the family law section has provided high-quality assistance to government.

Government amendments (1) and (2) provide for the commencement of the definition of ‘de facto relationship’, which recognises children of same-sex relationships, on the day the bill receives royal assent. The definition of ‘de facto relationship’ and the amendments made under new section 3A will also apply to a number of other acts, many of which are also being amended by the Same-Sex Relationship (Equal Treatment in Commonwealth Laws—Superannuation) Bill 2008 and the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—General Law Reform) Bill 2008. Commencement on royal assent will ensure that the amendments made to those other acts, once the two same-sex bills have passed and commenced, will have effective operation from the commencement.

Government amendments (3) to (6), (10), (11), (18) to (27), (30) to (32) and (47) to (52) address various drafting issues raised by the family law section of the Law Council of Australia to: (a) ensure consistency with the definitions for ‘de facto’, ‘financial cause’ and ‘financial matters’; (b) ensure consistency between provisions applying after a de facto relationship ends and the provisions applying after a marriage has ended in divorce; (c) replace the term ‘binding financial agreement’ with the phrase ‘financial agreement that is binding on the parties to the agreement’ or a similar phrase; and, finally, ensure that, where both parties have signed a separation declaration, the declaration’s time is measured from the time it is first signed by one of the parties.

Government amendments (8), (9), (29), (33), (39) and (54) also address various technical issues. It is always difficult to say this, but they were inadvertently overlooked during drafting. These amendments are largely technical, as I said, and are explained in more detail in the revised supplementary explanatory memorandum we have provided.

I commend the amendments to the chamber.

3:41 pm

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

The opposition accepts that the first group of amendments are of a technical character. They are designed to clarify certain meanings and correct certain omissions in the original draft of the bill and they are not controversial.

3:42 pm

Photo of Ron BoswellRon Boswell (Queensland, National Party) Share this | | Hansard source

I would like to make some remarks on the opening clauses of this bill. On the face of it, the Family Law Amendment (De Facto Financial Matters and Other Measures) Bill seeks to provide de facto couples, both opposite-sex and same-sex, with access to federal family courts on property and maintenance matters. The intent is to provide for national uniformity for all relationship breakdown matters and to confer jurisdiction on the courts with the best resources for resolving the breakdown of relationships—namely, the Family Court of Australia and the Federal Magistrates Court—exercising jurisdiction under the Family Law Act. It is important to address this for de facto couples. The coalition, while in government, supported, and indeed initiated, moves to legislate to help de facto couples in this regard.

It is of paramount importance that the unique status of marriage be preserved in all legislation that comes before the Senate. That is why de facto couples are treated as distinct from married couples, although relationships in both may result in similar circumstances being treated in a similar manner. Significantly, the title of this bill refers to de facto financial matters, which reflects the intent of the bill, as I have just outlined. However, there is also the matter of ‘other measures’ in the bill’s title. It is about the other measures that I, like many other Australians, have a concern.

Firstly, de facto couples now include same-sex couples. I acknowledge that many people do not have a problem with that. They view relationship breakdown as a generic situation that should be treated the same wherever it occurs. Their reasoning extends to children—that is, if children are involved, the same law should apply regardless of whether the couple is married, heterosexual or same-sex.

But a child is not the biological creation of a same-sex couple. That is biological fiction. So there is a problem under law of treating children being cared for by same-sex couples when there is a breakdown of that relationship, assisted reproduction techniques in surrogacy and other dimensions to the problems, because of genetic material from a non-custodial but biological mother or father. We are left with legal distortions and euphemisms in order to convince ourselves we are treating everyone equally. The government’s proposed amendment to section 60H will effectively give parental status to a lesbian partner of a woman who undergoes an artificial conception procedure. This includes artificial insemination and IV.

Item 7 of proposed new schedule 3A of the bill would introduce a new section 60HB to the Family Law Act which would give parental status to any person for whom an order has been made under prescribed surrogacy law of a state or territory. This is despite the fact that surrogacy laws amongst the states are varied and incomplete. The coalition will be moving amendments to try to improve this situation, but I am concerned that, no matter how hard we try, we are taking steps here that extend the classification of mothers and fathers to people who are not mothers and fathers. In doing so, we undermine marriage, motherhood, fatherhood and the rights of children to a mother and father as we have understood them throughout the whole of the history of humanity.

The government’s amendments in the bill’s proposed schedule 3A state that for ‘children’ should be substituted the following: ‘whether or not the child is biologically a child of the woman and of the other intended parent, for the purposes of this act the child is a child of the woman and of the other intended parent’. The government is proposing that a child can be a child of two people of the same sex—that is, a child can have two mothers. At least the government is no longer suggesting that the child be defined as a product of the relationship of the two same-sex parents—as was originally proposed. A child is not a product, and humans are not the industrial system, with inputs and outputs and people who can be equal substitutes for parents. We are a society, a society that depends fundamentally on marriage and the family for security, survival, continuity and a future. I feel that, with bills like this and the ones to follow on the equal treatment of same-sex partners, we are almost under duress to pass them, such is the pressure and media conditioning of our times.

Bernard Salt, a partner with KPMG, points out in today’s Australian the extremes of political correctness occurring in the UK. He writes:

IN politically correct Britain last month the University of Manchester changed the signage on toilet doors. Apparently transgender students complained that the terms male and female made them feel uncomfortable. As a consequence toilets in the student union building have been relabelled toilets and toilets with urinals.

He described how potential contractors with the Greater London Authority have to complete a diversity monitoring form that includes listing the sexual orientation of their workforce. The categories, according to Bernard Salt, are bisexual, gay, metrosexual and lesbian—and if you want to add another category you are welcome to. Is this the direction in which we are heading? I am afraid it is. There is more persecution of those who are unhappy with this bill than of those who are the intended beneficiaries. Who can argue with equal treatment in these enlightened days? Yet how we deceive ourselves when we create, by law, the fiction that a human baby actually has two mothers! Everyone who was born in this world has been created by a man and a woman. Now we are asked to accept, and legislate for, a new dogma: there shall be a father, a mother and ‘fothers’, let us call them, for we are creating a new class of parent. A ‘fother’ is a person who is not the mother or father in any physical or biological way—or a person who replicates that role in a heterosexual relationship—but a person in a same-sex relationship. This bill will establish a legal structure that creates a second parent of the same sex for a child while denying that child a parent of the other sex. Do such statements make me a homophobe who should be reviled and hounded by human rights and antidiscrimination activists? No doubt they do, but I assert my right to say farewell to the nostalgic days of humanity when a child had a right to a father and a mother.

Question agreed to.

3:50 pm

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

I move opposition amendment (1) on sheet 5617 revised:

(1)    Schedule 1, item 21, page 10 (lines 20 to 25), omit subclause (5), substitute:

        (5)    For the purposes of this Act a de facto relationship can exist between 2 persons of different sexes and between 2 persons of the same sex.

The first of the opposition’s amendments is to item 21 of the bill. The purpose of the amendment is to omit from the proposed definition of ‘de facto relationship’ in the new section 4AA of the bill the words in subsection (5)—‘a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship’—so that subsection (5) of the proposed section 4AA would merely provide ‘that for the purposes of the act a de facto relationship can exist between two persons of different sexes and between two persons of the same sex’.

Concern was raised by a number of witnesses before the Senate inquiry into this and related bills that the provisions of the proposed section 4AA(5)(b) would seem to countenance a polygamous situation. It may very well be, particularly having regard to the existing provisions of section 6 of the Family Law Act which are not affected by this bill, that the omission of these words will not change the law, but nor will the inclusion of these words change the law, so we are not, in this context, talking about matters of substance. But there are important issues of symbolism and the use of statutory language which have been an aspect of this debate, and for those reasons the opposition is of the view that paragraph (b) of proposed section 4AA(5) should be deleted.

3:52 pm

Photo of Joe LudwigJoe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | | Hansard source

The government does not support the amendment. It does not support the primary premise of this amendment that the senator is relying on. The amendment concerns a matter that I took the opportunity of outlining in my summing-up speech: the bill does not provide recognition or endorsement of polygamous relationships. It is unlawful to enter into a polygamous marriage under Australian law and under the laws of the states and territories. The bill itself simply allows a court to determine, taking into account all circumstances, the just and equitable distribution of property between couples in a range of relationships. This is currently the situation under the state and territory laws. In fact, this bill simply picks up the referrals given by the states and territories which were pursued and received by the former government. Those opposite agreed to it, as we understand it, when they were in government. I find it difficult to see—as I think I said during my summing-up, it all now seems bizarre—why the opposition are now continuing on this course.

I can understand sometimes the points the opposition wish to make about it. The Senate Standing Committee on Legal and Constitutional Affairs raised in part a whole range of issues that the government took on board. Similarly, the family law section of the Family Law Council raised a whole range of issues, although they were more technical in nature. But it does seem difficult to see why the opposition are continuing to press for this. It does not seem to be even part of what you would sometimes refer to as a belt and braces approach, one that is sometimes adopted in this place as a matter that the opposition might want to pursue. It seems to be an issue that would be a difficult matter for the government to accept with regard to the remarks that have already been made about this. The common law is able and apt to deal with this area.

Quite frankly, we do not think the case is as the opposition have argued. Our advice is that the implication of removing the provision that allows more than one relationship is that there is a greater chance that a court could find that a de facto relationship has to be exclusive of any other relationship, whether that is a marital relationship or another de facto relationship. That seems to be the nub of the issue. The advice that we have on this matter is that you should not remove the provision that allows more than one relationship, and I guess we have to examine this as to the chance that a court would find that a de facto relationship has to be exclusive of any other relationship. In the absence of any clear statutory intervention, the courts have not taken a consistent approach to this issue. There are already some court decisions that indicate exclusivity is required. There are also some other court decisions that indicate that it is not essential. It seems that for that purpose alone, so as to give some certainty, this provision is the best position to adopt. Therefore we should act on the advice that the government and I think should be followed in this instance.

The point seems to be that if we were to follow the opposition’s position we could wait on the common law and await the courts’ decisions. If those decisions are made, and they vary in the primary courts, then you do have a position where you may find that there are different outcomes. It would not be the intention of this government to pursue those. It would then be a matter of waiting for matters to be appealed, with people incurring those expenses, to settle the law in respect of this. I understand that, in that instance, the opposition would want to rely on the common law to pursue the matter. However, in this instance, where we think we have it right and can make a clear legislative intention, that provides the basis upon which the courts may then examine the legislation and determine cases accordingly without recourse to litigation and making the parties go to the expense of finalising these matters, should they need to.

Of course, in this area things are not always litigated. Parties do not always have sufficient funds available to them to litigate, so they are left with a decision they may not wish to have. Therefore, I think it makes more sense to accept the advice that we have about the implication of removing the provision that allows more than one relationship and that there is a greater chance that a court would find that a de facto relationship has to be exclusive of any other relationship. As I said, I dealt with this matter in the summing-up and I would urge the chamber not to accept the amendment as circulated by the opposition. We think this legislation has been sufficiently examined. I know that Senator Brandis, the shadow Attorney-General, has spent a considerable amount of time on examining the provisions of this legislation, so I do not take the position that is being put forward by Senator Brandis lightly. The amendment before us is a matter that Senator Brandis would have turned his mind to in a sufficiently deep way. However, in this instance my advice is contrary to the shadow Attorney-General’s position, so I would ask him to reconsider his position and not pursue the amendment.

3:39 pm

Photo of Sarah Hanson-YoungSarah Hanson-Young (SA, Australian Greens) Share this | | Hansard source

The Greens also do not support the amendments circulated by Senator Brandis on behalf of the opposition. I am not exactly sure where the argument comes from that this legislation somehow encourages polygamy or even legitimises it, which seems to be what Senator Brandis is saying. A significant number of heterosexual de facto couples are still married. It is important that, if we are to redefine the meaning of de facto to include same-sex couples, we recognise the diversity of relationships from which people come. It essentially reflects the reality of people’s lives. The Greens believe that the weaker party in a relationship should be recognised by the courts, and that is where one part of a couple is considered to be currently in another relationship, de facto or married. The partner in this relationship should still be recognised as a partner of that relationship.

To suggest that the parliament would somehow be endorsing polygamy is simply ridiculous, or perhaps, as the minister said, bizarre. It is simply, as I said, a reflection of the reality of people’s lives, and so to deny court access to a partner upon the break-up of their relationship is irresponsible and unjust.

4:01 pm

Photo of Louise PrattLouise Pratt (WA, Australian Labor Party) Share this | | Hansard source

I think the opposition’s amendments fail to pick up that this legislation is not about polygamist relationships; it is actually about protecting people who might be vulnerable in accessing their rightful entitlements. I give to you the situation of a couple who marry early in life and eventually leave each other. They have no further contact with each other but they remain legally married. If they were to enter into long-term de facto relationships with other people, there could be a situation where their previous marital status is not disclosed even to their de facto partner. They would have an understanding, being in a de facto relationship, that they would have access to a certain set of entitlements, and they would not know that those entitlements could be denied to them by virtue of the fact that their partner is legally married to someone else. So I have a great deal of concern about the opposition’s amendments in that regard.

You occasionally hear in the media, or read in the tabloids, stories about people who have multiple families and have led lives of deception. This legislation is not about morally condoning such relationships; it is about making sure that, if people are vulnerable to those kinds of relationships, they have some legal recourse to protect their interests and their children’s interests. For that reason, I oppose the amendments.

On indulgence, I would like to discuss some amendments that have not yet been moved. My remarks extend to the current section 60H of the Family Law Act. This section ensures that, where a woman gives birth to a child as a result of an artificial conception procedure, both the woman and her male partner are recognised as the child’s parents. It also ensures that, if genetic material from a third person was used to conceive the child, that third person will not be recognised as the child’s parent. The only proviso is that the woman and her partner must have consented to the procedure and that any third party who provided genetic material must have consented to the use of that material in an artificial conception procedure. The section has this effect even if there is no relevant state or territory law that provides that the woman concerned and her partner are the child’s parents. Only this section provides this independent Commonwealth recognition, without relying on state and territory law. It provides specific, explicit, independent recognition and protection under Commonwealth law to all couples who have children with the assistance of artificial conception procedures.

This section provides equal protection to married and opposite-sex de facto couples. The section will apply to opposite-sex de facto couples as if they were married. It provides all those couples and their children with the protection and reassurance that comes from knowing, with certainty, that the Commonwealth regards their parent-child relationships as legitimate. There are countless families out there right now—countless husbands, wives, mothers and fathers in de facto relationships, daughters, sons, grandparents, aunts, uncles and cousins—who all rely on reassurance and protection of their legal status. They are all relying on the Commonwealth to acknowledge, without reservation, that their children belong to their family and not to any other.

The government is proposing to extend this protection to lesbian couples so that, where a woman gives birth to a child as a result of an artificial conception procedure, both the woman and her female partner will be recognised as the child’s parents. The coalition objects to the government’s amendment because the government’s approach allegedly homogenises same-sex relationships with marriage relationships and treats them identically. The coalition has circulated its own amendment and it contains two separate provisions—one provides recognition for the husbands of birth mothers who conceive as the result of an artificial conception procedure and the other provides recognition for the male or female de facto partners of birth mothers who conceive as the result of an artificial conception procedure.

The coalition’s second provision for de facto couples—but not its provision for married couples—differs from the government’s provision in two significant ways. Firstly, it refers to the de facto partner of the birth mothers as ‘the other person in the relationship’, whereas the government’s amendment refers to ‘the other intended parent’. Secondly, it specifies that the child conceived ‘is the child of’ the birth mother and ‘is deemed to be the child of the other person in the relationship’, whereas the government amendment says that the child ‘is the child of’ both the birth mother and the other intended parent.

The coalition’s desire not to treat same-sex couples like married couples stands to undermine the legitimacy of the parent-child relationships of all de facto couples, both same-sex and straight, who conceive as a result of artificial conception procedures. It wants to say to same-sex couples: ‘We can possibly manage to treat you like you are parents. We can possibly manage to accept the reality that your children and all those who deal with them work on the assumption that you are parents. But we do not actually want to call you parents because we all know that really you are not parents—you are just pretending to be parents. Therefore, we only deem you to be parents.’ In the process, the coalition are putting at risk the existing rights of the many heterosexual de facto couples who conceive through artificial conception procedures.

Australia abolished all distinctions in legal status between so-called legitimate and illegitimate children in the 1970s, and in the 1980s the states referred their powers in relation to the children of unmarried parents to the Commonwealth to ensure that all children would be treated equally for the purposes of family law specifically. Everyone in Australia had thought that the days when children were discriminated against because of their parents’ marital status—the days when, through no fault of their own, children were branded as ‘bastards’—were behind us. That was until the opposition foreshadowed this particular amendment. The children of married couples using artificial conception procedures and donor sperm will now have two parents, while the children of de facto couples in the same situation will have one parent and another person who is ‘deemed to be a parent’—whatever that is supposed to mean.

This is a pernicious and evil distinction, the legal consequences of which are dangerously uncertain. To take just one example: what does this distinction mean for tracing rules? What does it mean for siblings, grandparents, uncles, aunts and cousins whose relationship to the child is through the person who is only ‘deemed’ to be a parent? In an attempt to pander, I think, to the homophobic prejudices of some of its members the coalition is undermining for many families the protection and reassurance that comes from knowing with certainty that the Commonwealth regards their parent-child relationships as legitimate. That is why we should acknowledge without reservation that those children belong to those families and not to any other.

4:10 pm

Photo of Joe LudwigJoe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | | Hansard source

The government of course is acting responsibly by recognising that surrogacy is a reality today. Of course, the act already has laws that allow for the transfer of legal parentage from the surrogate mother to the commissioning parent. Victoria’s lower house of parliament has just recently passed the Assisted Reproductive Treatment Bill, which gives greater recognition to surrogacy arrangements in the state. Also, Mr Colin Barnett, Premier of Western Australia, has said the reintroduction of surrogacy laws is one of the first priorities for his government. The proposed government amendment introducing section 60HB recognises the reality that courts can and do transfer legal parentage as a result of a surrogacy arrangement—and it will be difficult to deny that this happens. Failure to recognise these orders would perpetuate inappropriate inconsistencies between state and federal laws and continue confusion and discriminatory treatment for families.

Question negatived.

by leave—I move:

That the House of Representatives be requested to make the following amendments:

(7)    Schedule 1, item 50, page 23 (lines 3 to 21), omit section 90RB, substitute:

90RB Meaning of child of a de facto relationship

                 For the purposes of this Part, a child is a child of a de facto relationship if the child is the child of both of the parties to the de facto relationship.

Note:   To determine who is a child of a person see Subdivision D of Division 1 of Part VII.

(12)  Schedule 1, item 50, page 29 (line 24), omit “application time.”, substitute:

                      application time;

or that the alternative condition in subsection (1A) is met.

(13)  Schedule 1, item 50, page 29 (after line 24), after subsection 90SD(1), insert:

     (1A)    The alternative condition is that the parties to the de facto relationship were ordinarily resident in a participating jurisdiction when the relationship broke down.

(14)  Schedule 1, item 50, page 29 (lines 27 to 31), omit subsection 90SD(3), substitute:

        (3)    If each State is a referring State, the Governor-General may, by Proclamation, fix a day as the day on which paragraph (1)(b), and the alternative condition in subsection (1A), cease to apply in relation to new applications.

Note:   Paragraph (1)(b) and subsection (1A) will continue to apply in relation to applications made before the proclaimed day.

(15)  Schedule 1, item 50, page 39 (line 25), omit “application time.”, substitute:

                      application time;

or that the alternative condition in subsection (1A) is met.

(16)  Schedule 1, item 50, page 39 (after line 25), after subsection 90SK(1), insert:

     (1A)    The alternative condition is that the parties to the de facto relationship were ordinarily resident in a participating jurisdiction when the relationship broke down.

(17)  Schedule 1, item 50, page 39 (lines 28 to 32), omit subsection 90SK(3), substitute:

        (3)    If each State is a referring State, the Governor-General may, by Proclamation, fix a day as the day on which paragraph (1)(b), and the alternative condition in subsection (1A), cease to apply in relation to new applications.

Note:   Paragraph (1)(b) and subsection (1A) will continue to apply in relation to applications made before the proclaimed day.

(34)  Schedule 1, item 85, page 81 (after line 6), after the definition of commencement, insert:

designated agreed matters, in relation to 2 persons, means the following:

             (a)    how all or any of the:

                   (i)    property; or

                  (ii)    financial resources;

                      of either person, or both persons, at the time when the agreement is made, or at a later time and during a de facto relationship between them, is to be distributed;

             (b)    the maintenance of either of the persons;

in the event of the breakdown of a de facto relationship between them, or in relation to a de facto relationship between them that has broken down, as the case requires.

(35)  Schedule 1, item 85, page 81 (before line 7), before the definition of earlier participating jurisdiction, insert:

designated State/Territory financial agreement, in relation to 2 persons, means a written agreement:

             (a)    signed by both of them with respect to matters that include any designated agreed matters; and

             (b)    made under a preserved law of a State or Territory; and

             (c)    in relation to which, either:

                   (i)    a court could not, because of that preserved law, make an order under that law that is inconsistent with the agreement with respect to any of the designated agreed matters; or

                  (ii)    a court could not, because of that preserved law, make an order under that law that is with respect to any of the designated agreed matters.

(36)  Schedule 1, heading to Division 2, page 81 (lines 22 to 24), omit the heading, substitute:

Division 2—Application of new Act to de facto relationships breaking down before commencement

(37)  Schedule 1, item 86, page 81 (line 27), omit “Parts VIIIAB and VIIIB of the new Act do not extend”, substitute “Subject to item 86A, Parts VIIIAB and VIIIB, and subsection 114(2A), of the new Act do not apply in relation”.

(38)  Schedule 1, page 82 (after line 17), after item 86, insert:

86A Opting into the new regime

Choosing the new regime

(1)    The parties to a de facto relationship that broke down before commencement may choose for Parts VIIIAB and VIIIB, and subsection 114(2A), of the new Act to apply in relation to the de facto relationship.

Note 1:  Whether the parties will be able to obtain an order under those provisions of the new Act, or make a Part VIIIAB financial agreement, will depend on whether the tests found in those provisions are satisfied for the de facto relationship.

Note 2:  Divisions 3 and 4 of this Part, and section 90UE of the new Act, are not affected by a choice under this item. Those Divisions, and that section, relate to de facto relationships that (if they are to break down) will break down after commencement.

When a choice can be made

(2)    A choice under subitem (1) can be made if:

             (a)    the choice is unconditional; and

             (b)    subitems (3), (4) and (5) are satisfied for the choice.

A choice is irrevocable.

(3)    This subitem is satisfied for the choice if no order (other than an interim order) under a preserved law of a State or Territory has been made by a court in relation to either of the following:

             (a)    how all or any of the:

                   (i)    property; or

                  (ii)    financial resources;

                      that either or both of the parties to the de facto relationship had or acquired during the de facto relationship is to be distributed;

             (b)    the maintenance of either of the parties to the de facto relationship.

(4)    This subitem is satisfied for the choice if:

             (a)    the parties have not made a designated State/Territory financial agreement in relation to their de facto relationship; or

             (b)    if the parties have made such an agreement, that agreement has ceased to have effect without:

                   (i)    any property being distributed; or

                  (ii)    any maintenance being paid;

                      under the agreement.

(5)    This subitem is satisfied for the choice if:

             (a)    the choice is in writing and signed by both of the parties to the de facto relationship; and

             (b)    each of the parties was provided, before the choice was signed by him or her, with:

                   (i)    independent legal advice from a legal practitioner about the advantages and disadvantages, at the time that the advice was provided, to the party of making the choice; and

                  (ii)    a signed statement by the legal practitioner stating that this advice was given to the party.

(6)    For the purposes of Part VIIIAB of the new Act, a choice can be included in a Part VIIIAB financial agreement for which the parties are the spouse parties.

Setting aside a choice

(7)    A court may make an order setting aside a choice if the court is satisfied that, having regard to the circumstances in which the choice was made, it would be unjust and inequitable if the court does not set the choice aside.

(8)    A court setting aside a choice under subitem (7) may make such order or orders (including an order for the transfer of property) as it considers just and equitable to, so far as is practicable, return the rights of:

             (a)    the parties to the de facto relationship; and

             (b)    any other interested persons affected by the choice;

to their position immediately before the choice was made.

(9)    Subsections 90UM(8) and (9) of the new Act apply in relation to setting aside a choice as if:

             (a)    a reference in those subsections to subsection 90UM(1) or (6) of the new Act were a reference to subitem (7) or (8); and

             (b)    the reference in those subsections to section 90UM of the new Act were a reference to this item.

(40)  Schedule 1, item 89, page 85 (line 5), omit “extend”, substitute “apply in relation”.

(41)  Schedule 1, item 89, page 85 (line 6), omit “extend”, substitute “apply in relation”.

(42)  Schedule 1, item 89, page 85 (line 8), omit “Note”, substitute “Note 1”.

(43)  Schedule 1, item 89, page 85 (line 12), omit “extend”, substitute “apply in relation”.

(44)  Schedule 1, item 89, page 85 (after line 13), after the note, insert:

Note 2:  The cases covered by paragraph (a) include a case where a de facto relationship has broken down before the transition time for the State and the parties to the relationship make a choice under item 90A.

(45)  Schedule 1, item 90, page 85 (line 35), omit “Parts VIIIAB and VIIIB of the new Act do not extend”, substitute “Subject to item 90A, Parts VIIIAB and VIIIB, and subsection 114(2A), of the new Act do not apply in relation”.

(46)  Schedule 1, page 86 (after line 17), after item 90, insert:

90A Opting into the new regime

Choosing the new regime

(1)    The parties to a de facto relationship that broke down before the transition time for the State may choose for Parts VIIIAB and VIIIB, and subsection 114(2A), of the new Act to apply in relation to the de facto relationship.

Note 1:  Whether the parties will be able to obtain an order under those provisions of the new Act, or make a Part VIIIAB financial agreement, will depend on whether the tests found in those provisions are satisfied for the de facto relationship.

Note 2:  Items 91 and 92 are not affected by a choice under this item. Those items relate to de facto relationships that (if they are to break down) will break down after the transition time for the State.

When a choice can be made

(2)    A choice under subitem (1) can be made if:

             (a)    the choice is unconditional; and

             (b)    subitems (3), (4) and (5) are satisfied for the choice.

A choice is irrevocable.

(3)    This subitem is satisfied for the choice if no order (other than an interim order) under a preserved law of a State or Territory has been made by a court in relation to either of the following:

             (a)    how all or any of the:

                   (i)    property; or

                  (ii)    financial resources;

                      that either or both of the parties to the de facto relationship had or acquired during the de facto relationship is to be distributed;

             (b)    the maintenance of either of the parties to the de facto relationship.

(4)    This subitem is satisfied for the choice if:

             (a)    the parties have not made a designated State/Territory financial agreement in relation to their de facto relationship; or

             (b)    if the parties have made such an agreement, that agreement has ceased to have effect without:

                   (i)    any property being distributed; or

                  (ii)    any maintenance being paid;

                      under the agreement.

(5)    This subitem is satisfied for the choice if:

             (a)    the choice is in writing and signed by both of the parties to the de facto relationship; and

             (b)    each of the parties was provided, before the choice was signed by him or her, with:

                   (i)    independent legal advice from a legal practitioner about the advantages and disadvantages, at the time that the advice was provided, to the party of making the choice; and

                  (ii)    a signed statement by the legal practitioner stating that this advice was given to the party.

(6)    For the purposes of Part VIIIAB of the new Act, a choice can be included in a Part VIIIAB financial agreement for which the parties are the spouse parties.

Setting aside a choice

(7)    A court may make an order setting aside a choice if the court is satisfied that, having regard to the circumstances in which the choice was made, it would be unjust and inequitable if the court does not set the choice aside.

(8)    A court setting aside a choice under subitem (7) may make such order or orders (including an order for the transfer of property) as it considers just and equitable to, so far as is practicable, return the rights of:

             (a)    the parties to the de facto relationship; and

             (b)    any other interested persons affected by the choice;

to their position immediately before the choice was made.

(9)    Subsections 90UM(8) and (9) of the new Act apply in relation to setting aside a choice as if:

             (a)    a reference in those subsections to subsection 90UM(1) or (6) of the new Act were a reference to subitem (7) or (8); and

             (b)    the reference in those subsections to section 90UM of the new Act were a reference to this item.

Statement of reasons: why certain amendments should be moved as requests

Section 53 of the Constitution is as follows:

Powers of the Houses in respect of legislation
53. Proposed laws appropriating revenue or moneys, or imposing taxation, shall not originate in the Senate. But a proposed law shall not be taken to appropriate revenue or moneys, or to impose taxation, by reason only of its containing provisions for the imposition or appropriation of fines or other pecuniary penalties, or for the demand or payment or appropriation of fees for licences, or fees for services under the proposed law.
The Senate may not amend proposed laws imposing taxation, or proposed laws appropriating revenue or moneys for the ordinary annual services of the Government.
The Senate may not amend any proposed law so as to increase any proposed charge or burden on the people.
The Senate may at any stage return to the House of Representatives any proposed law which the Senate may not amend, requesting, by message, the omission or amendment of any items or provisions therein. And the House of Representatives may, if it thinks fit, make any of such omissions or amendments, with or without modifications.
Except as provided in this section, the Senate shall have equal power with the House of Representatives in respect of all proposed laws.

Amendments (7), (12), (13), (15), (16), (38) and (46)

The effect of these amendments is to increase the number of individuals in respect of whom an amount may be paid out under the standing appropriation in section 21 of the Financial Management and Accountability Act 1997 in relation to the Special Account continued in existence by section 73 of the Child Support (Registration and Collection) Act 1988. They are covered by section 53 because they will increase a “proposed charge or burden on the people”.

Amendment (53)

The effect of these amendments is to increase the number of individuals in respect of whom an amount may be paid out under the standing appropriation in:

section 21 of the Financial Management and Accountability Act 1997 in relation to the Special Account continued in existence by section 73 of the Child Support (Registration and Collection) Act 1988; and

section 125 of the Health Insurance Act 1973; and

section 137 of the National Health Act 1953.

The amendments are covered by section 53 because they will increase a “proposed charge or burden on the people”.

Consequential amendments

The following amendments are consequential on amendments (7), (12), (13), (15), (16), (38) and (46):

(14), (17), (34), (35), (36), (37), (40), (41), (42), (43), (44) and (45)

Statement by the Clerk of the Senate pursuant to the order of the Senate of 26 June 2000

Amendments (7), (12), (13), (15), (16), (38), (46) and (53)

The Senate has long followed the practice that it should treat as requests amendments which would result in increased expenditure under a standing appropriation, although this interpretation is not consistent with other elements of the established interpretation of the third paragraph of section 53 of the Constitution. This has nothing to do with the introduction of bills under the first paragraph of section 53.

If it is correct that these amendments increase the number of individuals eligible for payments and benefits payable from standing appropriations, it is in accordance with the precedents of the Senate that the amendments be moved as requests.

Amendments (14), (17), (34) to (37), and (40) to (45)

These amendments are consequential on the requests. It is the practice of the Senate that amendments purely consequential on amendments framed as requests should also be framed as requests.

Government amendment (7), on a child of a de facto relationship and changes to parenting presumptions, will amend the definition of ‘child of a relationship’ for the purposes of the act. The amendment provides that a child is a child of a de facto relationship if the child is a child of both parties to the relationship. Government amendments (12) to (17) go to the geographical requirement. Government amendments (12) to (17) address issues raised by the Law Council of Australia’s family law section where de facto couples move to a referring state or territory during their relationship and separate before being ordinarily resident there for at least one-third of their de facto relationship. These amendments provide for couples in these circumstances to be able to access the regime if they are ordinarily resident in a referring state or territory when their relationship breaks down.

Government amendments (34) to (38)—and I can deal at the same time with amendments (40) to (46), which relate to opting into the new regime—implement the bipartisan recommendation 4 of the Senate Standing Committee on Legal and Constitutional Affairs report on the bill. The amendments insert a procedure enabling de facto couples in one of those states, or in a territory, whose relationship has broken down before the new Commonwealth de facto property settlement and spouse maintenance regime commences and who have yet to finalise issues between them to opt in to the new regime by mutual agreement.

The choice made to opt in will be subject to safeguards. These include requirements that the choice be in writing and signed by each party and be made only after each party has received independent legal advice and been given a signed statement by the legal practitioner that the advice was given. The opt-in procedure should also be available for de facto couples in South Australia and Western Australia if either of those states refer power, as other states have done.

I did take the opportunity earlier in my remarks of commenting on the legal and constitutional affairs committee report, of which we have adopted recommendation 4. From the government’s perspective, it is pleasing that we can do two things: firstly, compliment the legal and constitutional affairs committee for their work in this area and for making substantive recommendations in respect of what is complex legislation and, secondly, recognise that this government has sought to act on and implement those recommendations.

With those remarks, I commend these amendments to the Senate.

4:16 pm

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

Can I just indicate that the opposition will be supporting these amendments.

Photo of Sarah Hanson-YoungSarah Hanson-Young (SA, Australian Greens) Share this | | Hansard source

The Greens support these amendments as well.

Question agreed to.

Photo of Joe LudwigJoe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | | Hansard source

I move:

That the House of Representatives be requested to make the following amendment:

(53)  Page 108 (after line 17), after Schedule 3, insert:

Schedule 3AChildren
Family Law Act 1975

1 Subsection 4(1)

Insert:

child: Subdivision D of Division 1 of Part VII affects the situations in which a child is a child of a person or is a child of a marriage or other relationship.

Note:   In determining if a child is the child of a person within the meaning of this Act, it is to be assumed that Part VII extends to all States and Territories.

2 Before section 60F

Insert:

60EA Definition of de facto partner

                 For the purposes of this Subdivision, a person is the de facto partner of another person if:

             (a)    a relationship between the person and the other person (whether of the same sex or a different sex) is registered under a law of a State or Territory prescribed for the purposes of section 22B of the Acts Interpretation Act 1901 as a kind of relationship prescribed for the purposes of that section; or

             (b)    the person is in a de facto relationship with the other person.

3 Paragraph 60F(1)(c)

After “subsection 60H(1)”, insert “or section 60HB”.

4 After subsection 60F(4)

Insert:

     (4A)    To avoid doubt, for the purposes of this Act a child of a marriage is a child of the husband and of the wife in the marriage.

5 Subsection 60G(2)

After “paragraph 60F(4)(a)”, insert “, or paragraph 60HA(3)(a),”.

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, or a de facto partner of, another person (the other intended parent); and

             (b)    either:

                   (i)    the woman and the other intended parent 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 intended parent;

then, whether or not the child is biologically a child of the woman and of the other intended parent, for the purposes of this Act:

             (c)    the child is the child of the woman and of the other intended parent; and

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

7 Subsection 60H(4)

Repeal the subsection.

8 At the end of Subdivision D of Division 1 of Part VII

Add:

60HA Children of de facto partners

        (1)    For the purposes of this Act, a child is the child of a person who has, or had, a de facto partner if:

             (a)    the child is a child of the person and the person’s de facto partner; or

             (b)    the child is adopted by the person and the person’s de facto partner or by either of them with the consent of the other; or

             (c)    the child is, under subsection 60H(1) or section 60HB, a child of the person and the person’s de facto partner.

This subsection has effect subject to subsection (2).

        (2)    A child of current or former de facto partners ceases to be a child of those partners for the purposes of this Act if the child is adopted by a person who, before the adoption, is not a prescribed adopting parent.

        (3)    The following provisions apply in relation to a child of current or former de facto partners who is adopted by a prescribed adopting parent:

             (a)    if a court granted leave under section 60G for the adoption proceedings to be commenced—the child ceases to be a child of those partners for the purposes of this Act;

             (b)    in any other case—the child continues to be a child of those partners for the purposes of this Act.

        (4)    In this section:

this Act includes:

             (a)    the standard Rules of Court; and

             (b)    the related Federal Magistrates Rules.

60HB Children born under surrogacy arrangements

        (1)    If a court has made an order under a prescribed law of a State or Territory to the effect that:

             (a)    a child is the child of one or more persons; or

             (b)    each of one or more persons is a parent of a child;

then, for the purposes of this Act, the child is the child of each of those persons.

        (2)    In this section:

this Act includes:

             (a)    the standard Rules of Court; and

             (b)    the related Federal Magistrates Rules.

9 Application

Application to children

(1)    Subject to subitems (2) to (8), the amendments made by this Schedule apply in relation to a child born before, on or after the commencement of this item.

Application to the Aged Care Act 1997

(2)    To the extent that the amendments of the Family Law Act 1975 made by this Schedule affect subparagraph 44-11(2)(a)(i) of the Aged Care Act 1997, they apply in relation to that subparagraph on and after 1 July 2009.

Application to the A New Tax System (Family Assistance) Act 1999

(3)    To the extent that the amendments of the Family Law Act 1975 made by this Schedule affect paragraph 22(2)(b) of the A New Tax System (Family Assistance) Act 1999, they apply in relation to that paragraph on and after 1 July 2009.

Application to the Child Support (Assessment) Act 1989

(4)    To the extent that the amendment of subsection 60H(1), and the repeal of subsection 60H(4), of the Family Law Act 1975 made by this Schedule affect paragraph (b) of the definition of parent in subsection 5(1) of the Child Support (Assessment) Act 1989, they apply in relation to that paragraph on and after 1 July 2009.

Application to the Child Support (Registration and Collection) Act 1988

(5)    To the extent that the amendment of paragraph 60F(1)(c) of the Family Law Act 1975 made by this Schedule affects the definition of child of a marriage in subsection 4(1) of the Child Support (Registration and Collection) Act 1988, it applies in relation to that definition on and after 1 July 2009.

Application to the Health Insurance Act 1973

(6)    To the extent that the amendments of the Family Law Act 1975 made by this Schedule affect paragraph (a) of the definition of dependent child in subsection 10AA(7) of the Health Insurance Act 1973, they apply in relation to that paragraph on and after 1 January 2009.

Application to the National Health Act 1953

(7)    To the extent that the amendments of the Family Law Act 1975 made by this Schedule affect paragraph 84(4)(b), and paragraph (a) of the definition of dependent child in subsection 84B(4), of the National Health Act 1953, they apply in relation to those paragraphs on and after 1 January 2009.

Application to the Social Security Act 1991

(8)    To the extent that the amendments of the Family Law Act 1975 made by this Schedule affect paragraph 5(2)(a), subparagraph (b)(i) of point 1067G-B3AA, subparagraph (b)(i) of subpoint 1067G-G9(2) and subparagraph (a)(i) of point 1068-B1B of the Social Security Act 1991, they apply in relation to those provisions on and after 1 July 2009.

Government amendment (53) inserts a new section setting out the rules for determining when a child is a child of a person who has or had a de facto partner. The proposed amendment provides that a person is a de facto partner either when they are one of a couple registered under a prescribed law of a state or territory or they are in a de facto relationship with another person. Government amendment (53) also substitutes a new section 60H(1), which would apply where a child is born as a result of artificial conception procedures to a married couple or to current or former de facto partners who are of the same sex or different sexes. The expanded operation of the provisions would mean that a female same-sex de facto couple would be recognised as the parents of a child born where the couple consented to the artificial conception procedure relating to the birth of the child. In other words, the child would be recognised as the child of the woman giving birth and her de facto partner.

In addition, genetic material from other than the couple must be used with the relevant donor’s consent. Subsection 60H(1) now only requires the consent of the couple undergoing the procedure; it is silent as to the consent of any donors. The requirement that the donor consent is considered a necessary safeguard to ensure that genetic material is not used without the knowledge of the donor. Consent is seen as the fundamental principle in the regulation of conception procedures.

Turning to the issue of children born under surrogacy arrangements, new section 60HB is proposed to deal with children born under surrogacy arrangements regulated by state and territory laws. It provides that, where a court order has been made under a prescribed law of a state or territory relating to the parentage of a child, that court order will determine the parentage of the child. Where a surrogacy arrangement is involved, opposite-sex married or de facto couples and female or male same-sex de facto couples will be recognised as the parents of a child if there is a state or territory court order transferring parentage to them.

Dealing with the issue of children born before or after commencement, the amendments in new schedule 3A apply to children born before, on or after commencement so that the greatest possible number of children benefit from the changes. It is considered that for Family Law Act purposes all children of same-sex couples who would be recognised under the new provisions should be provided with benefits such as their same-sex parents being able to access the Family Court and having two parents recognised by the act.

The amendments in new schedule 3A commence on royal assent and apply to children born before, on or after commencement so that, as I said, the greatest possible number of children benefit from the changes. However, parentage presumptions in the Family Law Act are already applied by a number of acts relating to social security, child support and health. Some of these acts are also being amended by the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—General Law Reform) Bill 2008. It is necessary to align the application of the amendments in new schedule 3A with the commencement of the amendments to those acts by the same-sex general law reform bill. In most cases, the amendments in new schedule 3A will apply to these other acts on and after 1 July 2009. For the Health Insurance Act 1973 and the National Health Act 1953, they will apply on and after 1 January 2009. Of course, the purpose of that is to ensure the smooth implementation of the government’s wider same-sex reforms. Additionally, this will provide time for agencies to train their staff, to amend forms or procedures and to introduce new software or other technologies.

I also thank the Attorney-General, from a service delivery perspective, for providing some time for the agencies that I administer, which include Centrelink and Medicare, to look at these issues to ensure that our procedures and forms are appropriate for the legislative requirements and that our staff are trained to follow the legislative requirements. With all of these things it is helpful to be provided with sufficient lead time for that to occur. Given the complexity of some of this legislation, that will allow time to write guidelines and procedures for staff to follow. It will also allow time for individuals who may be affected by these changes to adjust. We cannot lose sight of the fact that there are individuals who will be affected by this legislation who will want to understand the implications that are contained within it, and we should allow time for them to digest the legislation and for their adjustment processes. With that, I commend the government’s request to the chamber.

I also seek to table the supplementary explanatory memoranda, which I failed to do at the commencement of the committee stage. I was just going to see whether or not the opposition have had an opportunity of looking at the supplementary explanatory memorandum.

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

Yes, we’ve seen it.

Photo of Joe LudwigJoe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | | Hansard source

I am advised that the opposition have had the opportunity of looking at that. I table a supplementary explanatory memorandum and a revised supplementary explanatory memorandum relating to the government amendments and requests for amendments to be moved to this bill. The memoranda were circulated in the chamber on 18 September and 14 October 2008.

4:24 pm

Photo of Sarah Hanson-YoungSarah Hanson-Young (SA, Australian Greens) Share this | | Hansard source

I would just like to acknowledge that the Greens support the government request for amendment. The issue in relation to parenting presumptions was a major concern raised during the inquiry. The concern was that 60H needed to be gender neutral in order to appropriately cover the children of lesbian couples. While the use of gender neutral language is needed, in order to capture all parents we would need to see a complete overhaul of current surrogacy legislation to ensure that there are uniform surrogacy laws across the board. The Greens are pleased that the government has adopted the committee’s recommendation and we fully support the amendment to sections 60H and 90RB.

I would just like to say again that the Greens are very pleased that the government is moving these amendments and we would like to see the legislation passed immediately. Enough is enough. It is 2008. We have been discussing the need for equality for same-sex couples for decades, and yet discrimination is continuing to occur on a daily basis. We must not delay these vital changes any longer. We need to see same-sex couples given the same decency, respect and equality in law that heterosexual couples get so that their families have the entitlement to the support, recognition and equality they deserve.

4:25 pm

Photo of George BrandisGeorge 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.

4:37 pm

Photo of Nick XenophonNick Xenophon (SA, Independent) Share this | | Hansard source

I thank Senator Brandis for his exposition of the coalition’s position. I think it was quite an honest exposition in terms of the concerns that have driven the coalition’s approach in relation to this. I put to Senator Brandis a couple of matters that were put to me by Senator Pratt in a document she provided to me just before question time. There is a concern with this particular amendment—and if Senator Brandis could clarify some of these concerns—that, firstly, there may be issues of legitimacy in relation to children of what is defined as ‘the other person in the relationship’; secondly, does it put at risk the existing rights of the many heterosexual de facto couples who conceive through artificial conception procedures; and, thirdly, is Senator Brandis aware of legislation in other states? Senator Pratt and I had a brief conversation about this—I hope she does not mind me referring to it. In her home state of Western Australia there were similar changes to the law, as I understand it, based on what was very similar to what is before us now in terms of the government’s amendments. To what extent is this breaking new ground in the context of what the government is proposing and also what the opposition is proposing? Are there precedents, if you like, in terms of the approach taken by the opposition to these amendments? If I can reiterate, I understand the coalition’s position in relation to this, but I think they are legitimate questions to ask in the context of this debate.

4:40 pm

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

I say through you, Mr Temporary Chairman, to Senator Xenophon that they are most appropriate questions to ask and I am very grateful that he did. Let me answer them. The first question you put, Senator Xenophon, is: would the opposition’s proposed amendment put a question mark on the issue of the legitimacy of children? I assume you are talking about children in de facto relationships. The answer to that question is, unequivocally, no—not even a possibility. I cannot begin to imagine what fanciful document Senator Pratt may have produced to you, Senator Xenophon, but if the document suggested that the effect of the opposition’s amendment was otherwise then it is pure rubbish.

The language that the opposition suggests, if I may read it, is that, in the circumstance of an artificial reproductive technology being used in a de facto relationship giving rise to the birth of a child, subsection (c) of the opposition’s proposed amendment states:

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

It is also a given that the child is not the biological child of the other person in the relationship, so a legal connection has to be established between the other person in the relationship and the child. That legal connection is established by the use of the words ‘is deemed to be the child’. Senator Xenophon, I cannot remember if you are a legally trained gentleman or not, but may I tell you that a deeming provision—which is a very commonplace form of statutory usage, as you, Mr Temporary Chairman, of course know—applies subject to its terms for all purposes. So there is no possible set of circumstances in which the operation or the correct application of these statutory words could result in any result otherwise than the child being the child of the other person. So the answer to your first question, as I said, is unequivocally no.

The second question you asked is: does it put at risk the existing rights of heterosexual couples who have conceived through ART procedures? Again, for precisely the same reasons, the answer to your question is unequivocally no.

The third question you asked is, having regard to the legislation that may exist in some of the other states or territories, whether or not the government’s or the opposition’s amendments break new ground. I am not in a position to tell you what specific statutory words may have been used in other states and territories—and I imagine this is uncontroversial between the minister and me—but the whole purpose of this bill is of course so that the Family Court of Australia, or the Federal Magistrates Court, exercising family law jurisdiction, will be the sole court that will be seized of these matters in all of this range of circumstances. Because section 60H will cover children born as a result of ART into marriages, into heterosexual de facto relationships and into same-sex de facto relationships, that would seem to cover the field. So the Commonwealth legislation would overtake whatever might possibly be—though I am not aware of it—inconsistent statutory language in the states.

4:44 pm

Photo of Nick XenophonNick Xenophon (SA, Independent) Share this | | Hansard source

I thank Senator Brandis for his answer. I am legally trained but I do not profess to have Senator Brandis’s skills. It has been about 10 years since I have done any practice as a personal injuries lawyer. Senator Ludwig, in terms of the point made by Senator Brandis that in a substantive sense the rights are not altered, is it more a question of terminology—that in a substantive sense the rights of the child are not in any way affected both in relation to the rights of the child and the rights of the persons in the relationship referred to in the context of this particular amendment?

4:46 pm

Photo of Joe LudwigJoe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | | Hansard source

The short answer is that the substantive rights are not gavelled by the amendment being proposed. The substantive point is this: this amendment to the Family Law Act changes the nature of what a parent is in some people’s minds. What the government says, though, is that the amendment may be motivated by the discomfort of some members opposite towards gay and lesbian parenting. Let us be clear about this: the changes will affect not only gay and lesbian couples but also heterosexual couples who use ART to have a child, and they form the bulk of couples using ART. It is one of those areas where you either agree to remove discrimination from legislation or you do not. There is difficulty with this question: what is the difference between saying that a child is a child of a married couple but is to be deemed to be the child of a heterosexual couple or same-sex de facto couple? Think about that for a moment.

Let me rephrase it. I have the Child Support Agency within my portfolio and I have Centrelink, which deal with married couples and marital breakdown. They also deal with de facto couples. They deal with about 6.5 million customers. What you are saying to certain people is that their child will be deemed to be either the child of a heterosexual couple or a same-sex de facto couple. Very quickly that becomes the nomenclature that attaches to these people. The message that it sends is, quite frankly, not the message that you would want to be part of. The message it sends to children of couples is that they do not really believe that you are their parent but, for the sake of the law, they will deem you. In this legislation, in the family law area, language is very important to people. It is one of those areas where it could be categorised as an example of the opposition wishing to perpetuate discrimination that they are committed to removing. I do not want to ascribe that to the opposition but it really stretches me as to why they cannot accept the word ‘parent’.

I know that children will regard them as parents, not as ‘deemed heterosexual or same-sex de facto parents’. It is a long piece of language to subscribe to someone, so either you agree or disagree. Substantive provision will not be unchanged by that—I think that is right—but it is a simple statement about whether these people are parents. What the opposition is proposing with this amendment is to remove the word ‘parent’ from a section that confers parental rights and responsibilities and to reintroduce discrimination between married couples and de facto couples, both heterosexual and same-sex.

The substantive effect of the section will not be changed by the amendment. However, as members of the opposition have stated time and time again in relation to this bill and related bills, language is important. Language is important, and that is why we do not agree with Senator Brandis’s position. We do not agree that we should accept the amendment. We do not accept that the word ‘deeming’ should be in the legislation in that way. The position of those opposite might be motivated by a range of issues in respect of gay and lesbian parents.

Let us be clear about this: the changes affect not only gay and lesbian couples. They also affect heterosexual couples who use ART to have a child—the bulk of those who use ART. It also ignores the fact that for the past 20 years the Family Law Act has treated married couples and de facto heterosexual couples in the same way when children have been born by artificial conception procedures. What is the difference between saying that a child is a child of a married couple but is deemed to be the child of a heterosexual or same-sex de facto couple? It sends the wrong message, quite frankly, and language in this act is important. The Family Law Act deals with a whole range of family law matters that will be dealt with by suburban solicitors right through to senior counsel. When you then use the phrase ‘deemed to be the child of the heterosexual or same-sex de facto couple’ the message is wrong, quite frankly. You either agree that they are parents or you do not. I do not think there is anywhere in this debate where you can say that you can walk both sides of the street.

It sends the message to children of such couples that we do not really believe that those couples are the parents, but for the sake of the law we will deem them to be so. That language then gets used in guidelines and procedures, by Centrelink and Medicare in dealing with a whole range of issues, and by the Child Support Agency. Why? Because it is in the legislation and we have to follow the legislation and use the language that is contained within it. Therefore that is what you are perpetuating if you accept the amendments moved by Senator Brandis.

4:52 pm

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

Mr Temporary Chairman, through you to Senator Xenophon—you got your answer from Senator Ludwig in the first sentence he uttered and then several times again during of his contribution. The government’s position is that the opposition’s amendment would not cause any substantive change to the law whatsoever. That is the answer, quite unequivocally, and of course the minister is right. Senator Ludwig and I seem to be in furious agreement about this. It is about terminology and messaging.

The opposition rejects as preposterous the suggestion that the opposition’s amendment involves any discrimination simply on the basis of sexual preference. Opposite-sex and same-sex de facto couples are treated identically, so it cannot logically be said that there is any discrimination against gay people in the opposition’s amendment. On the other hand the opposition makes no apology for treating marriage and de facto relationships as being categorically different. That does not mean that the consequences of the breakdown of such relationships may not be identical and that the treatment of the consequences of the breakdown of those relationships may not be identical. We make no apology for treating marriage as having, as I said before, a unique and privileged status. We note that the government has not sought to amend the definitions in the Marriage Act so we assume by application that the government agrees with us.

Through you, Mr Temporary Chairman, to Senator Xenophon—test the logic of what Senator Ludwig has said to you like this: Senator Ludwig says there is something wicked about not using the word ‘parent’. There are only three ways in which the law might acknowledge that a person is the parent of a child or that a child is the child of a person. Firstly, the most obvious case is if the child is the biological child of that person. If the child is the biological child of that person it is uncontroversial that that person is the parent of the child and the child is the child of that parent. You do not even need to say that in the Family Law Act for that to be a commonplace. Secondly, a child may become the child of a person who is not their biological parent by adoption. This amendment does not deal with adoption but we all know that when a child is adopted then for all purposes the adoptive parent becomes the same as the biological parent. I do not think this is quite the statutory language as elsewhere in the Family Law Act or the states’ statutes but he is deemed to be the parent and standing in the shoes of the biological parent for all purposes.

Thirdly, a person may be acknowledged as the parent of a child or a child might be recognised as the child of a particular person, other than biologically or through adoption, if for some reason the law declares it to be so. The law deems it to be so even though the child is neither the biological nor necessarily the adoptive child of that person. And that is this case of artificial reproductive technology where you have a situation in which the child is the biological child of another. There is no question about that. The mother is in a lesbian relationship with another woman and the law then deems that child to be the child of the other person in the relationship. It may well be, depending on what the state and territory laws permit, that that person will go on to adopt that child. But the operation of this provision does not depend upon the adoption because it deems the child, without the need for there to be an adoption, to be the child of the other person in the relationship.

Through you again, Mr Temporary Chairman, to Senator Xenophon—test the logic of the minister’s answer this way. Let us focus on the birth mother, the biological mother of the child. Does anyone seriously suggest that you need a specific provision in the Family Law Act to say that the biological child of a mother is the child of that mother so as to make the birth mother the parent of the child? Of course not. It is preposterous. You do not need to amend the Family Law Act to say that when a woman gives birth to a child she is that child’s mother, that child’s parent. Of course you do not. Therefore if you look at the opposition’s amendment, through you Mr Temporary Chairman, Senator Xenophon, subclause (c) says:

... the child is the child of the woman ...

That is the birth mother. We do not need to use the word ‘parent’ there. Nobody doubts what the biological relationship is. It goes on:

... and is deemed to be the child of the other person in the relationship ...

This is a person, who, it is a premise of this argument, is not biologically related to the child. So you do have to create a legal mechanism. You have to declare or deem it as a matter of law to be the case otherwise it would not be the case. That is all the opposition’s amendment does.

4:59 pm

Photo of Sarah Hanson-YoungSarah Hanson-Young (SA, Australian Greens) Share this | | Hansard source

I still do not see that the argument from the coalition is convincing in any way. Yes, we are talking about terminology, but to suggest that the word ‘parent’ is not important in the relationship between a child and their mother and their father is preposterous. It is absolutely essential to strengthening that relationship, to giving a foundation for the roles and responsibilities for the people involved in that relationship. Yes, it is about terminology, but it is absolutely important.

I am astounded that this amendment by the opposition seems to just be put in here without any kind of understanding of the ramifications for heterosexual couples around the country. We are not just talking about the relationship between parents and children of same-sex couples; we are talking about affecting the fundamental understanding of the roles and responsibilities that underpin the word ‘parent’ with regard to even heterosexual couples. If I were in a relationship and my partner was shooting blanks, so to speak, and I needed to go and get assistance to enable us to create a child, under these amendments the opposition is saying that my husband is not the parent of my child. There are families around the country who would be absolutely appalled to hear that this is the position being put forward by the opposition. The word ‘parent’ is absolutely essential to understanding the roles and responsibilities that we as mothers and fathers, regardless of our sexuality, have with our children. It sets a foundation, and in this place where we make the laws of the country it is absolutely important for us to understand how significant those terminologies are, how significant this symbol of what they carry is. For the opposition to suggest that somehow because I am unable to create a child with the partner of my choice I am therefore not the mother or the father is absolutely offensive and preposterous.

5:02 pm

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

Senator Hanson-Young, you could not possibly be more wrong than you are. It would be almost impossible for you to have fallen further into error than you have fallen in your contribution. First of all, your assertion that this amendment would have implication for existing heterosexual couples who have used artificial reproduction technology to conceive is absolutely wrong. It has none whatsoever, and only somebody who is profoundly ignorant of the law could suggest otherwise. Secondly, Senator Hanson-Young, you must have, if I may say so with respect, a very strange notion of family if you think that a child needs the reassurance of the Family Law Act to know who its parents are. Do you think that a child is going to be unsettled in its certainty about who its parents are because section 60H(1A) of the Family Law Act does not use the word ‘parent’? I cannot imagine any circumstance whatsoever in which it would occur to anyone to imagine that a child would be consulting the Family Law Act to be better informed about who its parents are. Children know who their parents are. We all know that.

Thirdly and finally—and it is a point I should have made in response to the minister before—if the use of the word ‘parent’ in section 60H(1) is such a big deal, why isn’t the word used in the existing section 60H(1)? This debate has proceeded merrily along a false premise that the opposition is proposing that we displace from section 60H(1) of the Family Law Act a usage—that is, the word ‘parent’. But we are not. Section 60H(1) does not contain the word now. So what the opposition is proposing is, in terms of the terminology and the adoption of the word ‘parent’ in the terminology, no different. It is different in other respects, but in terms of the use of terminology it is no different at all from the statutory provision which our amendment would repeal and replace.

5:05 pm

Photo of Louise PrattLouise Pratt (WA, Australian Labor Party) Share this | | Hansard source

Senator Brandis earlier critiqued my remarks in relation to legitimate and illegitimate children. In debating the opposition’s amendments in relation to this matter, I am using that distinction because what the opposition’s amendments do is create a distinction in status between parents who use donor gametes in order to conceive their child. You have two different statuses for two different sets of parents: married parents and unmarried parents. You are prepared to call the married parents parents for the purposes of this act but you are only deeming unmarried people to be parents. That is the reason for my bringing up that example of illegitimate versus legitimate.

We have removed the distinctions between married and unmarried parents for the purposes of family law. These amendments quite clearly bring us back to the days where we have a different set of characteristics for married and unmarried parents—hence my argument with regard to legitimate and illegitimate children. I think this is an unfortunate precedent to be reintroducing into the law. People who need to use donor gametes have struggled through the angst of infertility; through the decision to use reproductive technology, which is not an easy one; through the trauma and the heartache that the use of such technology often involves; through the pregnancy, the birth and the problems with breast-feeding; through the sleepless nights—through all the processes of adjustment, mental and social, that come with the transition to parenthood. These are much-wanted children. You could not have more willing parents than people who resort to using reproductive technology, and they should be referred to as parents within the law.

Senator Brandis raised the fact that the section currently does not use the word ‘parent’. The new provisions do, and you are introducing a distinction between someone who is referred to as a parent versus someone who is deemed to be a parent. The distinction is important. Senator Brandis also raised the issue of adoption. These provisions are very much designed to make adoption unnecessary. Adoption is for when you need to sever the relationship with the previous parent, so I think that that was an unfortunate analogy on the part of Senator Brandis.

5:08 pm

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

With respect, it was not an analogy. I was merely pointing out that there are ways other than through birth that a parent-child relationship can come into existence. The other ways are by legal rules, of which the most commonly recognised is by adoption, which is not this case. But in the case of the other person in a relationship which has taken advantage of an artificial conception procedure, then the other person in the relationship is, by operation of the law—because it is obviously not through a biological relationship—put in a relationship with the child. Hence, although you, with respect, Senator Pratt, and others have cavilled at the word ‘deem’, that is in fact merely a commonplace, unremarkable way in which a legal relationship is created by statute because a biological relationship does not exist.

5:09 pm

Photo of Sarah Hanson-YoungSarah Hanson-Young (SA, Australian Greens) Share this | | Hansard source

I apologise for being ignorant. I guess it is perhaps because the argument put by the opposition has been so pathetic in terms of explaining why these amendments need to be put forward. I would ask Senator Brandis to explain to me why a married couple who need assistance in sorting out their reproductive issues are somehow more parents than those who are not married but are in a de facto relationship—regardless, I must point out, of whether they are in a same-sex or opposite-sex relationship. Educate the chamber and educate the community, because I do not think that the Australian community would accept that we have to have two different classes of parents and therefore two different classes of children.

5:10 pm

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

The opposition does not say that. That is not our position. But it is our position that marriage, as I said earlier, is a unique and privileged relationship in our society. We respect and demand equal treatment for other domestic relationships, both opposite-sex and same-sex, but one cannot, at the same time, say that marriage is a unique and privileged institution and that it is the same thing as other domestic relationships, both opposite-sex and same-sex, which we respect. This has nothing to do with the way in which this bears on children because, as I also said earlier, one of the principles that guide the opposition’s approach to this is to ensure that there is no differential treatment of children whatsoever, regardless of the nature of the household to which they belong.

5:11 pm

Photo of Sarah Hanson-YoungSarah Hanson-Young (SA, Australian Greens) Share this | | Hansard source

I would like to ask Senator Brandis whether he would be prepared to change the terminology in the rest of the act to ‘deems to be’, even in relation to married couples?

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

That is not the question before the chair. I think everyone—opposition, government, cross-bench parties—accepts that this is a special case. We are, by the operation of the law and through no other mechanism, creating a relationship which did not previously exist. So it neither follows logically nor is appropriate to deal with the matter in this context.

5:12 pm

Photo of Sarah Hanson-YoungSarah Hanson-Young (SA, Australian Greens) Share this | | Hansard source

I am confused. Perhaps it is my ignorance again, and my lack of education by the opposition. Either we have a set of terminologies and words in our federal legislation that says, ‘You are a parent of a child,’ or we do not. If you are suggesting that we are not trying to create a two-class system—with one class being those children who are born to parents who are not married, regardless of their sexuality—why not have the same terminology used for each category?

5:13 pm

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

The word ‘parent’ is not used anywhere. It is not used in our descriptor of the other party to a de facto relationship, whether it is opposite sex or same sex; it is not used in our descriptor of the infertile husband in a marriage; and it is not used in the existing section 60H(1) which this replaces. That is why I said before that this is something of a false issue.

5:14 pm

Photo of Nick XenophonNick Xenophon (SA, Independent) Share this | | Hansard source

I have listened closely to the debate and I was grateful for the very comprehensive explanation that Senator Brandis gave of the coalition’s amendment. I accept everything that Senator Brandis said in terms of what the intent was and in terms of the concerns within the coalition as to why this approach has been taken. On balance I feel uncomfortable with both amendments. I feel less uncomfortable with the government’s amendment for this reason: I am concerned that, in the context of the coalition’s amendment—and I accept all that Senator Brandis has said—there will be a distinction, a difference, a change in the way that de facto heterosexual couples have been described in this context. From my perspective, that tips the issue to support the government’s position. But I do see this as a difficult issue. It is a case of being less uncomfortable with the government’s position than with the coalition’s.

Photo of Alan FergusonAlan Ferguson (SA, Deputy-President) Share this | | Hansard source

The question is that the amendment moved by Senator Brandis to the request for amendment moved by Senator Ludwig be agreed to.

Question put.

5:27 pm

Photo of Barnaby JoyceBarnaby Joyce (Queensland, National Party) Share this | | Hansard source

by leave—I want it noted on the record that I did not support the section of the government’s amendment, noted on ZA242, being (5) of subsection 60H(1).

Photo of Alan FergusonAlan Ferguson (SA, Deputy-President) Share this | | Hansard source

The question now is that Senator Ludwig’s request for an amendment be agreed to.

Question agreed to.

Bill, as amended, agreed to, subject to requests.

Bill reported with amendments and requests; report adopted.