Miscellaneous Acts Amendment (Same Sex Relationships) Bill 2008

Debate resumed from an earlier hour.

Mr ANDREW STONER (Oxley—Leader of The Nationals) [12.26 p.m.]: I lead in debate on the Miscellaneous Acts Amendment (Same Sex Relationship) Bill 2008 and indicate that The Nationals have chosen to adopt a conscience vote in relation to this legislation, as I believe will members of the Liberal Party. I state upfront that The Nationals believe the best family environment for children is with a mother and father who are married. As the father of six children I acknowledge that my wife, who is in the gallery today, is far more important in that environment than I am. Nevertheless, our children do well and they prosper in the home environment as we have a stable marriage and they have a father and mother as role models and parents. That principle guides The Nationals in matters of parenting, social cohesion and family wellbeing.

This bill was introduced as a result of representations from the gay and lesbian lobby and also because of legislation that has been introduced in other States. In commenting on this bill I have a sense of deja vu. The Government introduced social policy and the legislation to go with it early in its term of office, despite having failed to consult effectively with the community prior to the previous election. We are being forced to deal, at short notice, with a pretty complex social issue and many members of the community believe that they have not had an adequate opportunity to respond to this proposal. Yesterday, on my way back from opening the Shires Association conference, I met protesters on Macquarie Street in front of Parliament House handing out leaflets that state:

This week the Iemma Labor Government joins the anti-father cult. Fathers are to be removed from birth certificates.

Publication of that leaflet was authorised by the Non-Custodial Parents Party (Equal Parenting). Recently I received a letter from the Marriage and Family Office, Catholic Archdiocese of Sydney, which takes the view that fathers make a unique and important contribution to a child's wellbeing. The Marriage and Family Office expresses a number of concerns about the proposed legislation and some of the assumptions therein, and it makes some very good points.

Nevertheless, I accept that families come in all shapes and sizes. In fact, around 1,500 children in New South Wales live with same-sex parents. My view is that those children are innocent of the circumstances of their conception or of the domestic relationship of their parents. In saying that, I believe also that those children should have the same rights and opportunities as other children, which is one aim of this bill. I believe strongly that all children in this great egalitarian nation where young people have a multitude of opportunities ought to have equity of opportunity. Regardless of whether they have same-sex parents, a mother and father, or just one parent, they should have the same opportunities. I support that aim of the bill.

Concerns expressed to me about the removal of legislative recognition of the importance of fathers or the diminution of that recognition were addressed to some extent in the other place. Certainly, the concern was that the term "father" would be removed from birth certificates in the original bill introduced in that House. However, I understand that Reverend the Hon. Fred Nile, supported by the Hon. Charlie Lynn, who also sought to move an amendment, argued successfully on that issue. The Government has accepted the amendment of Reverend the Hon. Fred Nile that recognition of fathers on birth certificates should remain, and the bill has been amended accordingly.

Thus, a major concern expressed to me has been addressed. Therefore, a major reason to oppose the bill on a personal note no longer remains, given that members will be able to cast a conscience vote at the conclusion of this debate. However, the Government seems to be embarking on a process of incrementalism with these difficult social issues: we are on a slippery slope of social engineering. One piece of legislation after another has been introduced to change the notion of "family". I will fight always for the traditional family unit as the backbone of our society. This bill goes much further than earlier changes to property rights—which were contained in contentious legislation that the Government introduced early in its term—because it involves the upbringing of children with no say as to whether they are raised in a household with same-sex parents.

Former Attorney General Shaw was at pains to explain during the debate on the Property Relationships Amendment Bill 1999 that there was no intention to use the definition of "de facto relationship" introduced by that bill, which deals with same-sex relationships, to change marriage or adoption laws relating to property. The definition of "heterosexual" in the Adoption Act, which was enacted after the insertion of the broader definition in the Property Relationships Amendment Act 1999, is likely to be next on the Government's agenda. If this Government were to embark on that process it would undermine the laws forbidding same-sex marriages, gay adoption and IVF for gay people. Therefore, any such change will transform in many ways one of the most fundamental features of marriage—parenting.

Many believe children raised by same-sex couples have greater potential to suffer developmental problems or are more likely to struggle with their own sexuality. The Government may see the bill as the thin edge of the wedge to legalise same-sex marriages or gay adoption but I for one will stridently oppose such steps.

Mr FRANK TERENZINI (Maitland) [12.34 p.m.]: I support the Miscellaneous Acts Amendment (Same Sex Relationships) Bill 2008. The bill substantially is the same as that introduced in the Legislative Council on 7 May this year. The Government amended the bill in the Legislative Council regarding two matters. The first amendment refers to leave entitlement for lesbian parents. In further recognition and equal treatment of lesbian parents, the bill makes amendments to the Industrial Relations Act 1996 so that parental leave entitlements already available to male employees in connection with the birth of a child of a spouse or de facto partner are extended to female employees in the same circumstances.

To accommodate the expansion of this type of parental leave the term "paternity leave" is renamed "partner leave". Concerns raised in the Legislative Council involved claims that this change of language was not sufficiently inclusive and so the Government agreed to amend the bill to describe this form of leave as "paternity or partner leave." This leave entitlement recognises that the partner of a woman who gives birth or adopts a child can be a man or a woman, and that both male and female parents have a need to bond with and care for their child.

The second amendment relates to the issue of the registration of parents on a child's birth certificate. The bill amends the Births, Deaths and Marriages Registration Act 1995 to ensure that both parents can be noted on a child's birth certificate. This is important and will allow both parents in a lesbian couple to provide evidence of their relationship to their child when it is required by institutions, such as hospitals and schools. Of course, it will assist parents also when they deal with sports clubs, doctors' surgeries and childcare centres, which parents so often have to deal with in the course of bringing up their kids.

The amendment to the Births, Deaths and Marriages Registration Act provides also that an application can be made to add information to a birth certificate about another parent, even if the child was born before the commencement of the new provisions. Again, this will be an important change for the many lesbian couples that already have children together. In order to reflect the Government's policy that a child should have only two legal parents the amendments include transitional provisions dealing with the addition of information about a second parent in circumstances where the child's birth certificate already details the existence of two parents. This might occur when a man was the sperm donor for a lesbian couple or was merely a friend of the birth mother but was named on the birth certificate for symbolic purposes. In these circumstances the provisions allowing his name to be removed can apply.

The registrar will be able to remove the person named on the birth certificate as a father only with his consent, if a court authorises the removal, or in certain other circumstances provided for by regulation. The Government emphasises that these provisions regarding the removal of a male's name from the birth certificate apply only when the child was conceived through artificial fertilisation and the man is or was not entitled to be recognised as the parent. The provisions cannot apply when the child was conceived through sexual intercourse with the man named on the birth certificate or when the sperm donor was also the de facto partner or husband of the woman in the period around the birth, because a presumption exists under section 14 (1) (a) of the Status of Children Act 1996 that he would be the father.

Amendments in the Legislative Council have responded to some level of community concern that the registrar will be able to name all fathers as parents on birth certificates regardless of their wishes. This was not the intention of the bill, and to reduce any confusion the Government has agreed that the bill will be amended to provide a guarantee that parents can choose the term "mother", "father" or "parent" as they wish. It is important to note that the overall object of the bill is to amend a series of other Acts to ensure, for the benefits of the child, that the child is raised without discrimination. It recognises the sheer reality that same-sex couples are raising children.

The bill has been designed to prevent discrimination against children whose parents are in same-sex relationships. I have read numerous media reports about community concerns. The concern in my electorate has been based on misinformation. The guarantees provided by the amending provisions should put paid to the misinformation. The bill amends a series of Acts to ensure that children from same-sex relationships benefits do not suffer discrimination.

I am pleased to support the bill. It completes reforms that began many years ago. Members will be aware that the Property Relationships Act includes in its definitions section "same-sex" couples. This bill extends that definition to other Acts of Parliament to eliminate discrimination that would otherwise be suffered by children of same-sex relationships. The bill completes the reform of administrative procedures to ensure that all relevant Acts of Parliament take the reality of same-sex relationships into account. For the reasons I have outlined I support the bill.

Mrs SHELLEY HANCOCK (South Coast) [12.40 p.m.]: I will make brief comments regarding the Miscellaneous Acts Amendment (Same Sex Relationships) Bill 2008. I appreciate that, once again, the Liberal-National Coalition has granted its members a conscience vote, unlike the Labor Party, which has instructed all its members to support the legislation. Under a conscience vote all Coalition members can consider the legislation closely and vote according to their own views, and I appreciate that deeply.

However, I have noticed that in the past weeks a number of concerns have been expressed to all members of the House in relation to the apparent intention of the Government to remove reference to the biological father, or the father, from the birth certificate of a child being raised by a lesbian couple. At the outset I must say that that is not an accurate summation of the bill. I implore critics of the bill to closely examine it before judging its contents. The Government has failed to communicate the provisions of the bill clearly to the community, interested groups, individuals and key stakeholders—hence the confusion, misunderstanding and hysteria that has resulted regarding the bill. The Government is entirely responsible for all of that misunderstanding and confusion.

The proposed reforms will ensure that the law will treat children in same-sex relationships as having the same rights and entitlements as children of other relationships, in particular when same-sex parents die intestate or without having made a will. Those factors are not discussed or even mentioned often, but they are addressed by sound provisions of the bill that we should all be discussing. The bill more clearly defines the rights of children of same-sex relationships—removing discrimination against the children. The bill is not about removing the name of the father from a birth certificate but it presumes that a woman who is in a de facto relationship with another woman and who has undergone a fertilisation procedure, as a result of which she becomes pregnant, is the mother and the other woman is a parent of the child. And both parents can be noted on the child's birth certificate. It is relatively simple.

As stated in the second reading speech of the Attorney General on 7 May, the bill will ensure that both parents of a child conceived as a result of a fertilisation procedure which had been provided to couples in a lesbian same-sex de facto relationship may be regarded as the parents of a child when evidence of a parent-child relationship is demanded by our State's public institutions such as hospitals and schools. It will also enable same-sex parents to engage with other authorities such as sporting registration bodies and the like—just as other parents are able to. I emphasise further the comments made by the Attorney General in relation to birth certificates. That has been the most contentious aspect of the bill. The member for Maitland referred to the second reading speech, but because of the contention and misunderstanding on the issue I will quote the relevant part of the second reading speech:

In order to reflect the Government's policy that a child should only have two legal parents, the amendments to the Births, Deaths and Marriages Registration Act include transitional provisions addressing the addition of information about a second parent in circumstances where the child's birth certificate already details the existence of two parents, the birth mother, and a person who was represented to the registrar as being the father of the child. In such circumstances the registrar will only be able to add the registrable information arising out of the new parenting presumptions in the Status of Children Act if the already registered father consents to the removal of his details from the birth certificate, if the court authorises the removal, or in certain other circumstances provided for by regulation.

That point needs to be emphasised: The Attorney General went on to state:

The Government emphasises here that these provisions, regarding the removal of a male's name from the birth certificate, only apply where the child was conceived through artificial fertilisation and the man is not entitled to be recognised as the parent. In some circumstances a man's name may have been put on the birth certificate as the father without him having parentage entitlements to justify this—for instance, if the man was the sperm donor and had no relationship with the birth mother, or the man was merely a friend of the birth mother who did not father the child but was named on the birth certificate for symbolic purposes. In these circumstances the provisions allowing his name to be removed can apply. They cannot apply where the child was conceived through sexual intercourse with the man named on the birth certificate. They cannot apply where the sperm donor was also the de facto partner or husband of the woman in the period around the birth, because there is a presumption under section 14 (1) (a) of the Status of Children Act 1996 that he would be the father. I encourage those who oppose the bill based on their understanding that the bill necessarily removes the father from a child's birth certificate to research carefully this aspect of the bill.

All members who speak in support of the legislation should refer to those two paragraphs to counter the hysteria about the bill over the past few weeks. The amendments passed in the other place last evening should allay some of the fears and concerns expressed from both sides of the House. I encourage those whose opposition to the bill is based only on their misunderstanding that the bill removes the name of the father from a child's birth certificate to research carefully that aspect of the bill and read the provisions of the bill carefully. People who oppose the bill simply because they regard same-sex relationships as abhorrent should carefully examine the bill—and indeed their own consciences—since the bill will remove only the current discrimination under laws of this State, and that should be removed.

The bill will ensure that same-sex partners who are parents will be entitled to the same parental leave entitlements as those currently enjoyed by a male employee in connection with the birth of his child. The bill will ensure that people living in same-sex relationships are treated equally and do not suffer from continual discrimination. Many people in same-sex relationships are raising children in a loving, caring home environment. In every sense of the term they are members of a family—perhaps not the so-called traditional mother, father and two kids family, or six kids family as we heard about earlier. Nevertheless they are involved in raising and educating their children, with all the challenges that involves. They should not be treated differently from anyone else.

Those who oppose the bill should not be in denial about that self-evident fact. Those who oppose the bill are generally misrepresenting what it is about. They should carefully review some of the comments made in regard to this proposed legislation. I request some latitude to discuss another issue regarding a young couple in my electorate. The matter does not necessarily relate to same-sex couples but to surrogacy laws. The discrimination that Paul and Rebecca McGroder of Huskisson have experienced should be addressed as a matter of urgency by the Attorney General. Liam, the son of Paul and Rebecca, was born to his aunt in a surrogacy arrangement. The McGroders, who cannot have a child through conventional conception, provided egg and sperm and the embryo was implanted in Mrs McGroder's sister-in-law. The McGroders therefore are the biological parents of Liam and are currently raising their child, but they are not mentioned on his birth certificate. They even had to fight to be able to attend Liam's caesarean birth. They have to wait for five years to be able to adopt their own son since surrogacy laws in New South Wales do not recognise the genetic parents of a child born as a result of a surrogacy arrangement.

I recognise the complexity of surrogacy laws but as we are discussing discrimination as part of the debate on this bill I ask that the Government act in regard to the problems experienced by the McGroders since the birth of their son. The McGroders' story has been aired on television and has appeared in newspapers, and they have made various representations to State and Federal governments. I call on the Attorney General to address this issue. While the McGroders have the right to make decisions as though they are Liam's parents, unfortunately absent is the legal status of the parent-child relationship. This of course leads to a number of complications and legal barriers for them.

I support the provisions in the bill, which will remove discrimination as it exists in New South Wales towards same-sex lesbian parents who are raising children in this State. My very strong view is that, as a society, we should be tolerant of difference at every level—including the sexuality of its members. Effective parenting is achieved through the commitment and dedication of parents, irrespective of their sexuality. Good people make good parents, whether they are heterosexual or homosexual. I support the bill as it supports parents involved in raising children who are currently treated unfairly and who suffer discrimination. I also reject some of the opposition to this bill as being, at best, reflective of confusion and a genuine lack of understanding of the proposed legislation and, at worst, reflective of deep-seated intolerance and ignorance.

Ms CLOVER MOORE (Sydney) [12.51 p.m.]: I welcome and strongly support the Miscellaneous Acts Amendment (Same Sex Relationships) Bill 2008, which promotes better recognition of lesbian couples who have a child through donor insemination and finally allows both women to be recognised legally as parents of their child. Under the bill each woman will have access to leave to look after her newborn child, with maternity leave available to the birth mother and "partner leave", which will replace paternity leave, available to the other parent. Both women can be identified on the child's birth certificate. The bill also strengthens protection for same-sex couples under the Anti-Discrimination Act 1977 by changing "marital status" as a ground for discrimination to "marital and domestic status", and amends 57 additional Acts, regulations and by-laws to recognise and treat consistently de facto relationships for straight and same-sex couples.

I welcome these changes, which have been a long time coming. For years the Government has been out of touch with community values by failing to remove discriminatory laws. In June 2007 the Australian reported a Galaxy poll showing that 71 per cent of Australians believe same-sex couples should be entitled to the same legal rights as heterosexual couples. I have worked with the gay and lesbian community for more than 20 years. While much has been achieved in this time—including the enacting of my anti-vilification bill and the outlawing of transgender discrimination as well as making the age of consent equal for males and females—the battle for justice and equality has had to settle for taking small steps because of the lack of political will to abolish discrimination completely. I hope that this bill signals a change in the culture of this Parliament in support of equality for all members of the community.

This bill is a positive step for children as it will prevent many problems that families with lesbian parents face. Unlike heterosexual parents who conceive through donor insemination, currently only the birth mother can sign school permission slips or give consent to medical treatment. This can cause all kinds of problems for children when only one parent can be contacted, particularly in an emergency. The bill will give both parents the legal right to make important decisions for their children. The Gay and Lesbian Rights Lobby says that children of lesbian couples will get greater protection in the event of a break-up or the death of a parent. Both parents will be recognised, giving both rights to custody and contact access. Children will have automatic rights to inheritance upon the death of a parent and rights to benefits such as workers compensation, giving children assurance during difficult times. These are just, fair and practical rights.

The new laws are in the best interests of the children of lesbian couples, who currently have less financial and emotional security than the children of heterosexual couples. The bill will provide consistency for all children in these families. The lobby points out that many lesbian couples alternate the role of biological parentage, which, under current arrangements, means that siblings have different legal parents. Under the bill the State will recognise the whole family unit and treat siblings consistently. Again, that is fair and just. Although we have little evidence because of the failure to count these relationships in the census until recently, I understand that more same-sex couples are parenting, with 20 per cent of lesbians and up to 10 per cent of gay men parenting children. At the last census more than 4,000 children were recorded as living in same-sex families in Australia. These are happy family units. The lobby points out that the best scientific evidence shows that there are no negative impacts on children raised by same-sex parents, and I support its call for full legal recognition of same-sex relationships and parenting to prevent continuing legal disadvantage.

I have repeatedly asked successive Attorneys General to reform the Anti-Discrimination Act to remove lawful discrimination of lesbians and gay men. The bill will make sure that same-sex couples cannot be discriminated against in employment, accommodation and education on the basis of their relationship. The Gay and Lesbian Rights Lobby believes this will protect lesbians and gay men from discrimination that could arise from the increased disclosure requirements in the bill. These changes could, and should, have been implemented long ago. Changes to make de facto relationships gender inclusive and consistent throughout New South Wales legislation will provide certainty for same-sex couples. The Gay and Lesbian Rights Lobby tells me that many gay men and lesbians are confused about partnership rights and may not be aware of existing rights such as hospital visits, medical consent and property rights, which have been in place since 1999. Similarly, health and welfare service providers face a complex system of inequality and confusion when they work with gay or lesbian clients. How unnecessary is all this pain.

I continue to strongly support the calls of the Gay and Lesbian Rights Lobby and the lesbian and gay community for reform of adoption—an area where gay and lesbian parents still have limited rights. During debate on the Adoption Bill 2000 I moved an amendment to give same-sex couples rights similar to those of their heterosexual counterparts. But it received no support from members. The Adoption Act should allow same-sex parents to use step-parent adoption provisions and allow co-parent adoption by same-sex partners. Surely members will agree that it is illogical that gay men and lesbians are able to adopt as individuals but not as couples, as they can in Western Australia, the Australian Capital Territory and Tasmania. At present both members of New South Wales same-sex couples cannot be legally recognised as parents. The non-biological parent cannot adopt the child without the birth parent—their partner—giving up their parental rights, even when there is only one legal parent. Parents in these situations must seek orders in the Family Court.

GayDadsNSW points out that there are countless family situations that the bill will not recognise, including situations where gay couples make arrangements with lesbian couples to co-parent children. I share the group's position that the law should reflect the reality of loving and supportive families and make provisions to recognise different family structures. I am very aware of many such very loving and supportive family structures and of many very unhappy traditional domestic situations. We should judge the family group on the basis of loving and supportive relationships rather than traditional values. The traditional family unit has caused much unhappiness for so many people for so long. The law should not reduce the rights of the children of lesbians and gay men; it should seek to protect them and ensure that their families are secure. The New South Wales Government should commit to urgent adoption reform. I hope that members will recognise the justice in equal treatment and not succumb to prejudice and bigotry. The gay and lesbian community strongly supports the bill, and continues to call for equal treatment rather than being singled out for "special" and lesser treatment under the law. There can be no rational reason to allow discrimination against gay and lesbian couples and their children. I strongly support the bill and commend it to the House.

Pursuant to sessional orders debate interrupted and set down as an order of the day for a later hour.

[The Acting-Speaker (Ms Diane Beamer) left the chair at 12.58 p.m. The House resumed at 2.15 p.m.]