MISCELLANEOUS ACTS AMENDMENT (SAME SEX RELATIONSHIPS) BILL 2008
The Hon. RICK COLLESS
Debate resumed from an earlier hour.
[5.04 p.m.]: I do not have much more to add but I would like to raise the problem of medical issues, where persons are disconnected completely from their biological parents and, in particular, those genetic conditions that can develop in people later in life and can be passed on to their children. It is important that families have access to those details.
My opposition is not born out of prejudice towards different family relationships that may be in place; I support the different arrangements that exist in our community. It is born out of the need for truth and biological science. As I said earlier, a person can have only one biological mother and one biological father. I believe the birth record should reflect that and should not be confused with the parenting arrangements that exist within the family situation. As such I am opposed to the bill.
The Hon. TREVOR KHAN
[5.05 p.m.]: This is a most important bill. In June 2007, shortly after entering this place, I was obliged to consider the Cloning and Other Prohibited Practices Amendment Bill 2007. That bill caused me much inner turmoil and, as many will remember, I opposed the legislation. My reason for opposing that legislation was based on the humanist traditions that I choose to espouse. I again seek to use those same humanist principles to explain the position I come to in respect of this bill. To explain my reasoning I refer to some of the affirmations of humanism adopted by the Society for Secular Humanism.
The society's statement of principles includes the following expressions of belief: a belief in an open and pluralist society in which democracy is the best guarantee of protecting human rights from authoritarian elites and repressive majorities; a concern for securing justice and fairness in society and eliminating discrimination and intolerance; an intention to transcend divisive parochial loyalties based on race, religion, gender, nationality, creed, class, sexual orientation, or ethnicity; a belief in the cultivation of moral excellence; a respect for the right to privacy; a belief in the common moral decencies: altruism, integrity, honesty, truthfulness and responsibility; and, finally, a belief in optimism rather than pessimism, hope rather than despair, learning in the place of dogma, truth instead of ignorance, joy rather than guilt or sin, tolerance in the place of fear, love instead of hatred, compassion over selfishness, beauty instead of ugliness, and reason rather than blind faith or irrationality.
I have attempted to use these principles in formulating my position in the current debate. I return to consideration of the bill itself. This is not a bill that achieves mere modest changes in the law, nor is it a bill that deals solely with the rights of children. This is a quite significant bill and it deserves to be recognised as such. To that end, I must observe that to entitle the bill a miscellaneous provisions bill detracts from its importance. This bill bestows rights upon a section of our community that have been denied to them since Governor Arthur Phillip planted the flag upon the land of the Gadigal people some 220 years ago. The object of the bill is to amend certain Acts, regulations and other instruments to make further provision in relation to their application to de facto relationships within the meaning of the Property (Relationships) Act 1984. In particular, the bill:
(a) amends the Anti-Discrimination Act 1977
to rename the "marital status" ground of discrimination as "marital or domestic status" and extend that ground to include the status or condition of being in a de facto relationship, within the meaning of the PR Act, between same sex partners, and
(b) amends the Status of Children Act 1996
to extend to same sex partners of birth mothers the parenting presumptions applying under that Act in relation to children born as a result of a pregnancy achieved by a fertilisation procedure, and
(c) amends various Acts and instruments as a consequence of the amendments to the Status of Children Act 1996
, including the Births, Deaths and Marriages Registration Act 1995
, the industrial Relations Act 1996
and the PR Act, and
(d) extends to de facto relationships, within the meaning of the PR Act, provisions in Acts, Regulations and other instruments that currently apply in relation to spouses, and
(e) clarifies that existing references in Acts, Regulations and other instruments to de facto relationships are references to do facto relationships within the meaning of the PR Act, and
(f) clarifies that references to the partner of a person in a number of instruments are references to the partner of the person, whether of the same or the opposite sex.
It is impossible to skirt around issues, and chief amongst them is the impact upon children of being brought up in a household in which the parents are a same-sex couple. There can be no doubt that at the heart of much of the criticism of the bill is the view that same-sex partners are less capable than heterosexual couples of providing for and nurturing children. Related to this concept is the view that children raised by a same-sex couple will be affected adversely by their home environment and less capable of fitting into our wider society.
The logic seems to be that to pass the legislation will in some way encourage people to adopt a gay or lesbian lifestyle and subject yet more children to an inappropriate and harmful environment. Much research has been undertaken on these issues, both overseas and in Australia. I begin by referring to research undertaken overseas. In July 2004 the American Psychological Association, in its Resolution on Sexual Orientation, Parents and Children, made the following observations:
Many lesbians and gay men are parents. The US Census in the year 2000 found that 33% of female same-sex couple households and 22% of male same-sex couple households reported at least one child under the age of 18 living in the home.
Despite the significant presence of at least 163,879 households headed by lesbian or gay parents in US society, three major concerns about lesbian and gay parents are commonly voiced.
These include concerns that lesbians and gay men are mentally ill, that lesbians are less maternal than heterosexual women, and that lesbians' and gay men's relationships with their sexual partners leave little time for their relationships with their children.
In general, research has failed to provide a basis for any of these concerns.
First, homosexuality is not a psychological disorder. Although exposure to prejudice and discrimination based on sexual orientation may cause acute distress, there is no reliable evidence that homosexual orientation per se impairs psychological functioning.
Second, beliefs that lesbian and gay adults are not fit parents have no empirical foundation. Lesbian and heterosexual women have not been found to differ markedly in their approaches to child rearing.
Members of gay and lesbian couples with children have been found to divide the work involved in child care evenly, and to be satisfied with their relationships with their partners.
The results of some studies suggest that lesbian mothers' and gay fathers' parenting skills may be superior to those of matched heterosexual parents.
There is no scientific basis for concluding that lesbian mothers or gay fathers are unfit parents on the basis of their sexual orientation. On the contrary, results of research suggest that lesbian and gay parents are as likely as heterosexual parents to provide supportive and healthy environments for their children.
The American Psychological Association went on to note:
As the social visibility and legal status of lesbian and gay parents has single-sex lesbian or gay communities have received no scientific support.
Overall, results of research suggest that the development, adjustment, and well-being of children with lesbian and gay parents do not differ markedly from that of children with heterosexual parents.
There is no scientific evidence that parenting effectiveness is related to parental sexual orientation: lesbian and gay parents are as likely as heterosexual parents to provide supportive and healthy environments for their children.
Research has shown that the adjustment, development and psychological well-being of children is unrelated to parental sexual orientation and that the children of lesbian and gay parents are as likely as those of heterosexual parents to flourish.
Similarly, in a 2006 report prepared by the Canadian Department of Justice entitled "Children's Development of Social Competence Across Family Types", the following conclusion was reached:
The strongest conclusion that can be drawn from the empirical literature is that the vast majority of studies show that children living with two mothers and children living with a mother and father have the same levels of social competence. A few studies suggest that children with two lesbian mothers may have marginally better social competence than children in traditional nuclear families, even fewer studies show the opposite, and most studies fail to find any differences. The very limited body of research on children with two gay fathers supports this same conclusion.
In the Australian context the issue of children growing up in same-sex households has been the subject, sadly, of protracted and bitter litigation from time to time. The leading decision in this area is that of Justice Paul Guest in April 2002 in the case of Re Patrick , FCA 193. I should observe that this was a dispute arising from the decision of the sperm donor father to seek to take an active role in the life of the child—referred to in the case as Patrick—contrary to the wishes and expectations of the biological mother and her same-sex partner. I will quote part of the judgement because some of the observations made towards the end are apposite to the current debate. At paragraph 323 of his decision His Honour observed:
That which constitutes a "family" has been the subject of substantial debate particularly relevant to the gay and lesbian community. It has been argued that there has been—
"a shift away from the indicia of biology and marriage relationships towards a more flexible or purposive definition of family.
It appears to me that a " family" being limited to the traditional hetero-nuclear family does not now reflect the reality of the various family forms within modern society. I see no reason why " family" should not also include a homo-nuclear family as part of the diverse configuration of families reflected in our community.
In my view, both the mother and the co-parent (in this case) have demonstrated a history of " mutual interdependence, of the sharing of lives, of caring and love, of commitment and support" (per Lord Slynn Fitzpatrick v Sterling Housing Association Ltd (2001) 1 AC 27 at 38. They, together with Patrick, are a "family". It is also appropriate to recall what Nicholson CJ had to say when dealing when dealing with the changing concept of family, namely:
One of the fundamental misconceptions which plagues me is the failure to understand that heterosexual family life in no way gains stature, security and respect by the denigration or refusal to acknowledge same-sex families. The sum social good is in fact reduced, because when a community refuses to recognise and protect the genuine commitment made by its members, the state acts against everybody's interests.
The term "family" has a flexible and wide meaning. It is not one fixed in time and is not a term of art. It necessarily and broadly encompasses a description of a unit which has 'familial characteristics' In my view it would stultify the necessary progress of family law in this country if society were not to recognise the applicants as a 'family' when they offer that which is consistent and parallel with heterosexual families, save for the obviousness of being a same-sex couple.
The issue of their homosexuality is, in my view, irrelevant. As Chief Justice Nicholson said:
Sexual orientation is no basis upon which to make assumptions about the quality of an individual's relationship or parenting capacities of a person. That is why sexual orientation in and of itself, has been held to be an irrelevant matter in disputes about children under the Family Law Act, unless it somehow impinges upon the best interests of a child.
At paragraph 327 His Honour said:
Gay and lesbian families are a relatively newly recognised and, it seems, growing phenomenon in Australian society. Whilst they represent a small minority of families, surveys of lesbian women in New South Wales have found that approximately 20 per cent have children and over 40 per cent are considering having children in the future
Although gay and lesbian families are increasing, they cannot be characterised as a homogenous group for they may take many forms. Children conceived via artificial donor insemination may have only two mothers, others, such as Patrick, may have two mothers and a father, and others, may have two mothers and two fathers. In a rare number of cases a child may have only two fathers. Within each of these family forms itself there may also be variations in the level of involvement of the father or fathers in the child's life. Accordingly, whilst a child may have two mothers and a father, this does not necessarily mean that the father plays a traditional "fatherly" role.
In a survey of 84 women attending the Sydney Lesbian Parenting Conference in 2000, some 66 per cent of respondents with children conceived via donor insemination reported that the donor had no parenting responsibilities or decision making role, and only 12 per cent reported a sharing of parental responsibilities with the donor. In terms of the child's contact with the donor, some 31 per cent had no contact, 33 per cent had "some" contact, 22 per cent had "regular" contact, and 13 per cent had "extensive" contact with the donor relating to the child as a non-resident parent. Those interviewed were divided about the legal role of the donor, with just under one half responding that the donor should not have legal recognition under any circumstances while an equal number reported that legal recognition may be justified in some circumstances. Similar studies conducted in other countries have elicited similar results.
At paragraph 331 His Honour said:
Finally, these proceedings, in critical ways atypical of those usually heard in the Family Court, have brought into sharp relief a number of significant issues which the Court will face in modern "family" litigation. Both the mother and co-parent gave evidence of considerable discrimination against lesbian families and indicated that they, together with Patrick, are part of a socially disadvantaged minority group. I found this evidence to be of concern. They addressed the importance of Patrick understanding that they, the lesbian parents, are proud of their identity, that he is safe and that he will develop within the fabric of his family a sense of identity and self esteem. I have no doubt that he will also be endowed with the importance of the concept of "family" through his father, who also must have weathered, at times, the storm of ridicule by bigoted members of our community. There do exist in our community elements of unfounded prejudice.
Mr Papaleo (one of the psychologists called in the case) styled these proceedings as being immensely complex in involving a clash of values, beliefs and societal expectations, let alone the challenge to issues relating to parental responsibility, psychological versus biological parenting and the status of the co-parent (and the father) at law.
Whatever the difficulties that currently exist between the mother, the co-parent and the father and which in my view are capable of sensible resolution, the immutable fact remains that Patrick is loved deeply by them all. That is his privilege. I view those that constitute his "family", both in the narrow and broad sense, warrant equal treatment with the rest of our community, and certainly by the law.
Patrick, who is nearly two years of age, is part of our community. He has the right to be treated equally as any other child. So too has the "family" that nurtures him, houses him and who is charged with the onerous responsibility of leading him forward as a productive participant within our broad society. As family members they have a commitment to mutual interdependence, they share their lives, they care for and love each other and offer common support. They too have a right to be treated equally by the community as any other heterosexual nuclear family. As to the issue of equality, the Hon Madame Justice Claire L'Heureux-Dube, in Egan v Canada (1995) 2 SCR 513 at 543 had this to say:
Equality means nothing if it does not represent a commitment to recognising each person's equal worth as a human being, regardless of individual differences. Equality means that our society cannot tolerate legislative distinctions that treat certain people as second-class citizens, that demean them, that treat them as less capable for no good reasons, or that otherwise offend fundamental human dignity.
Later, in a paper The Search for Equality: A Human Rights Issue (2000) 25 Queens Law Journal 401, her Honour said:
Equality implies freedom of choice regarding intimate association; true equality means respect or this deeply personal and individual decision.
This Chamber may also be assisted by the closing address given by the former Chief Justice of the Family Court, Chief Justice Nicholson, when he addressed the Conference on The Changing Concept of Family: The Significance of Recognition and Protection. His Honour observed:
Without the recognition of all family relationships, equality—the cornerstone of democratic society—is missing; public acknowledgment of private affections, commitments, interdependencies and identities is denied.
For this seminar to pay attention to both family and anti-discrimination law is also a sensible strategic choice. This is because arguments for the inclusion of sexual orientation as a prohibited ground of discrimination are likely to be met with confused claims that doing so is a dangerous domino: that it will lead to the demise of the so-called traditional family and the opening up of a Pandora's Box of unintended and undesirable consequences.
One of the most politically potent but patently false ideas is that the recognition of lesbian and gay men's relationships will somehow encourage those who would otherwise be heterosexual to opt instead for a same-sex relationship. To the degree that sexuality is a fluid human characteristic, it strikes me as absurd to imagine that the achievement of limited legal protections would induce someone to reorient their sexuality. It seems to me that politicians take themselves far too seriously if they really believe that any legislation they pass will have any effect, one way or the other, upon this issue. All that such legislation will do, and this is reason enough for it, is to provide that people whose sexual orientation is towards a same sex relationship will be treated equally with the rest of the community so far as the law is concerned.
The argument about encouragement is closely related to the equally misguided belief that homosexuals are prone to attempt to "corrupt" children.
The tendency to confuse homosexuality with paedophilia has been commented upon in a number of papers today. Such a stereotype reflects the inability or refusal of some people to understand that the exploitation, harassment and assault of children and young people is a harm related to sexuality as such, without regard to sexual preference and in most instances, but not all, to masculinity. The important point is that there is no evidence to support the proposition that it bears any relationship to homosexuality whatsoever. Most perpetrators of child abuse identify as heterosexual men and their victims are predominantly female.
It is therefore plainly spurious to confuse calls for law reform with concern about the propensity of some to abuse their power and trust.
What must be properly understood is that the real effect of refusing to acknowledge and provide protections to same-sex relationships is to fail to recognise nothing else but relationships and the meanings they give to an individual's life. This current state of the law smacks of society punishing otherwise law-abiding members for a sexual orientation that is, in and of itself, lawful.
And to what gain? Legal denial and intolerance achieve nothing but an insult to the dignity of recognition that every family treasures and has the right to expect in a country which supposedly supports tolerance for peaceful differences among its members.
To continue to ignore the rights of same-sex individuals and their relationships is a pyrrhic achievement of which no government out to be proud.
We must face the fact that whilst one can understand the reluctance of some members of this Chamber to embrace the concept of children being brought up in what would otherwise be described as non-conventional households, the children will not be harmed by those environments. The simple reality is that children in our society are harmed by a wide variety of dysfunctions and inadequacies affecting their parents, but the sexuality of their parents is not one of them. I again refer to the closing address of Chief Justice Nicholson, in which he observed:
I would like to take us back to a quote from a speech in another time on another issue. The words are from an Englishman speaking in 1833 on a matter which, like so many matters seen in a historical perspective, seems a little self evident. It is the speech of Thomas Babington Macaulay advocating in favour of full political equality for Jews in England. Mr Babington said of his opponent:
The plain truth is that my honourable friend is drawn in one direction by his opinions, and in a directly opposite direction by his excellent heart. He halts between two opinions. He tries to make a compromise between principles which admit of no compromise. He goes a certain way in intolerance. Then he stops, without being able to give a reason for stopping. But I know the reason. It is his humanity. Those who formerly dragged the Jew at a horse's tail and singed his beard with blazing furze-bushes, were much worse men than my honourable friend; but they were more consistent that he.
Chief Justice Nicholson then said:
Australia would do well to have more honourable members who could be described in these terms, as unable to give a reason for their opposition to human rights because of their "humanity". This does not seem to have been the case here so far on the subject of sexual orientation.
I conclude my contribution by noting that the bill seeks to assist a group of children, those of same-sex couples, by providing them with a bundle of rights that children of heterosexual couples already have. The bill also seeks to address issues of discrimination against members of our community who, like us, should be entitled to equal treatment, equal respect, and equal tolerance. I again quote the words of Chief Justice Nicholson:
I am here today because I value human rights and the principle of equal treatment. These are precious bulwarks against vulnerability and oppression.
I support the bill.
Reverend the Hon. FRED NILE
[5.32 p.m.]: The Miscellaneous Acts (Same Sex Relationships) Bill 2008 seeks to amend 57 Acts of the New South Wales Parliament. The bill will provide for equal rights for people in lesbian and homosexual same-sex relationships and will enact a number of recommendations from the New South Wales Law Reform Commission's report on relationships. On introducing the bill a Government spokesperson said, "The new laws were recommended by the Law Reform Commission which consulted widely with stakeholders." Our inquiries found that statement to be inaccurate. The commission conducted inquiries involving an extremely small sample of 69 persons. Almost all the respondents in this specially selected sample demonstrated a self-confessed practical ignorance of co-parenting and the avenues that already exist for functional parents to obtain a parenting order through the Family Court. The report of the commission on which the bill is based was a house of cards, or at the very least provided a very weak and faulty foundation for the legislation.
That confirms my attitude that the so-called surveys conducted by the New South Wales Law Reform Commission and similar commissions in other States are designed to bring about legislative changes from what I term the top down. Legislation from the bottom up is introduced when governments see a need for it following genuine expressions of concern by the community that are reflected by members of Parliament in debate. This bill is legislation from the top down. One could question whether the Law Reform Commission is being used to manipulate the Parliament into accepting certain propositions and recommendations at face value, thus encouraging the Attorney General to draft legislation incorporating those recommendations.
In my view the bill is not fully understood by Government members or by members of the Opposition and of the minor parties. It is very controversial and complex, and we are being expected to absorb it and vote on it in a short period of time. The bill will amend 57 Acts of Parliament and, consequently, it is entitled the Miscellaneous Acts Amendment (Same Sex Relationships) Bill. Generally speaking, bills that propose minor amendments to 20 or 30 pieces of legislation are entitled Statute Law (Miscellaneous Provisions) Bills, and with regard to such bills the Government gives an assurance that amendments about which reservations are expressed will be withdrawn or removed to enable their further consideration. Although many members have reservations about a number of aspects of the present bill, the same spirit of cooperation is not offered by the Government.
When a bill amends so many Acts of Parliament it is a very complex task to determine the impact of all the amendments. Usually when an Act requires an amendment, an amending bill is introduced for that purpose. The procedure is fairly straightforward. But in this case 57 Acts are being amended, with particular focus on the Anti-Discrimination Act 1977, the Status of Children Act 1996, the Industrial Relations Act 1996, and the Property (Relationships) Act 1984.
The Government did not refer to the remainder of the 57 Acts of Parliament. If the Parliament passes this bill, we will have voted in the dark, hoping that no serious ramifications or implications arise from the amendments. The bill amends a number of important pieces of legislation. One piece of legislation the bill amends, which is a matter of controversy, is the Births, Deaths and Marriages Registration Act and the Births, Deaths and Marriages Registration Regulation. The bill also amends criminal law, such as the Crimes (Administration of Sentences) Regulation and the Criminal Procedure Regulation 2005, and social law, such as the Drug and Alcohol Treatment Act, the Liquor Act 1982, the Privacy and Personal Information Protection Act 1988 and the Private Hospitals Regulation 1996. The bill should be referred to the Standing Committee on Law and Justice to enable it to carefully study the 57 Acts of Parliament and assess the legal implications of the amendments. The legal implications may not be clear even to the Government, which introduced the bill. Therefore, I move an amendment to the motion, to be dealt with at the time of the vote on the second reading, as follows:
That the question be amended by omitting all words after "That" and inserting instead:
"this bill be referred to the Standing Committee on Law and Justice for inquiry and report."
I did not set out a timetable in my amendment because of the complexity of the issues. That is the danger with a bill that amends 57 pieces of legislation. The committee should establish its timetable. As I said, the Law Reform Commission did not conduct an adequate inquiry into this bill. However, that is the way it usually operates. When the Government introduced the bill, it said that the Law Reform Commission had been asked to review the Property (Relationships) Act 1984 and had made 59 recommendations relating to the definition of "de facto" and "close personal relationships", financial adjustments on the breakdown of such relationships, and jurisdictional and procedural issues. The Government announced that it had accepted 21 of the 59 recommendations. Many other recommendations were not relevant because they related to Commonwealth legislation. The new Federal Labor Government, led by Prime Minister Rudd, has announced it will introduce a Commonwealth bill that deals with matters relating to same-sex relationships. The New South Wales Parliament has dealt with some of the recommendations and the Commonwealth will deal with others.
The report of the Law Reform Commission recommended that same-sex female partners should be granted parentage rights of children conceived by way of in-vitro fertilisation or artificial insemination. Currently when a woman uses a fertilisation procedure to conceive a child, the sperm donor is presumed not to be the father. The legal presumption is that the husband or de facto male partner is the father. The law acknowledges the father. The bill before us removes the emphasis on the father, particularly in the amendments to the Status of Children Act 1996. The Law Reform Commission also recommended amendments to the Anti-Discrimination Act, which the Government accepted and has implemented in the bill. Those amendments create a new category to be inserted in the Anti-Discrimination Act. As members know, the Anti-Discrimination Act covers marital status, age, sex and so on. The new category to be added is "domestic status". The definition of "domestic status" is not clear. The term "domestic relationship status" may have been more appropriate. When I first read "domestic status", I thought of housemaids who work in hotels and are called domestics. Domestics do the housework. In the eighteenth century the servants were domestics. A new category of "domestic status" in the Anti-Discrimination Act is not appropriate. This highlights one of my concerns about the legislation. How will the category of "domestic status" be interpreted?
Although it is not clearly stated, I believe "domestic status" means a domestic same-sex lesbian relationship. If so, if a person who feels strongly about the role of the father in the family is critical of same-sex relationships in public—unlike in Parliament where members are protected by parliamentary privilege—can people in a same-sex relationship say they are offended and be able to make a complaint to the Anti-Discrimination Board? Some members may say that the law does not apply to trivial matters. However, I have been before the Anti-Discrimination Board in relation to what I regard as trivial matters. Members should never underestimate the power of such tribunals. In my case I had written a letter, which was published in the Daily Telegraph,
in which I said that the Gay Olympics was not necessary.
If homosexuals are skilled at athletics or other sports they can participate in the Olympic Games. Homosexuals are not banned from the Olympic Games. Olympians are not considered heterosexual or homosexual. My remark was innocent. In fact, I supported homosexuals by saying they should participate in the Olympic Games. I said that they did not need the Gay Olympics, which the gay community was promoting, together with a request for half a million dollars from the State Labor Government to stage it. The editor of the Daily Telegraph
and I were involved in drawn-out discussions before the Anti-Discrimination Board. I learnt that the people who made the complaint against us were seeking six-figure damages from the Daily Telegraph
for publishing my letter.
I have learnt the hard way that you should never underestimate how some people can use these provisions, which is obviously not the intention of the Government, but once they go into legislation vexatious individuals could say, "I've got another weapon to use against the people I disagree with." I have tried to work out how to amend that section so it will not be possible for people to do that, but I have found it difficult. If we get to the Committee stage I propose simply to vote against the amendments to the Anti-Discrimination Act 1977 because I do not believe the Government has fully considered how that provision could be used or abused by vexatious people.
Some members of the public have written to me and raised other examples. For example, under the Anti-Discrimination Act could someone who is in a same-sex domestic relationship be offended by a Father's Day celebration or by a school having a Father's Day event and make a complaint or threaten to take the principal of the school to the anti-discrimination tribunal? I hope something like that would not happen, but I am pointing out that in my opinion the Anti-Discrimination Act has been abused already by vexatious people.
The reality is that once you receive a letter from the anti-discrimination tribunal to say a complaint has been made against you, you have to report firstly for a consultation. Normally you would say to yourself, "I will have to hire a solicitor because I am now facing potential damages or worse", so you hire a solicitor. You go through the procedures and perhaps eventually the tribunal says it does not uphold the complaint and it is dismissed. You still have to pay your solicitor because you are not awarded costs in the anti-discrimination tribunal, but it costs the person who made the complaint nothing: that person just made the complaint and the tribunal did the work. Even though you have been found innocent you are already out of pocket in having to pay for a solicitor and, depending on how serious you believe the matter to be, maybe a barrister as well.
People who appear before tribunals and do not get legal advice are putting themselves in a very dangerous situation because if the tribunal ultimately upholds the complaint it then has to make a decision as to what the punishment should be. The tribunal could order the person found guilty to make an apology. From memory, I believe I was ordered to make an apology, which is possibly the most minor punishment, but the tribunal has the option to award damages. From my last reading of the Act I think damages can be awarded of $1 up to $40,000. The tribunal could award damages of $10,000 or $20,000, and the guilty person then has to find that money and pay it to the person who made the complaint. The person paying the damages might think, "I would not be so worried if it went into consolidated revenue; at least it could go towards the wages of a policeman or a school teacher", but the damages go to the person who made the complaint.
That raises the issue of whether there is an incentive for people to use the legislation to make complaints. They cannot lose: it will not cost them anything, and if they win they could get damages from the individual. I urge the Government to give further consideration to the section of the bill that seeks to amend the Anti-Discrimination Act 1977. These amendments affect 57 Acts of Parliament, and the kind of problem I have outlined could have an unintended impact on people who are charged with committing a crime or on people involved in the hotel or liquor industry.
I believe the New South Wales Law Reform Commission report was a very shaky foundation on which to build legislation that has become controversial as people have learned more about it. I have received in the past 24 hours more than 250 emails, and from the way they are addressed I assume they have been sent to all other members of Parliament. I seek leave to table those 250 emails as part of this debate.
Leave not granted.
The other controversial aspect of the legislation relates to the Status of Children Act 1996. The amended legislation will allow the same-sex partner of a lesbian who gives birth to a child via artificial insemination to be listed automatically on the birth certificate as a second parent alongside the birth mother, assuming the partner consented to the procedure, and it will remove any reference to a father. This new provision will legalise a deception that a child has two mothers and no father. It would also deny the child any right to know his or her biological mother. That is why I believe there is a considerable amount of strong reaction in the community: by implication, this provision says that fathers are unimportant and do not really count, when we know that they do play a major role in the life of a child.
Many children, and in fact I would say all children, want to know who their mother and father are. Many children have a very deep concern about being denied the biological truth about their parentage, and I believe that concern will be even stronger because of the way in which the birth certificate will be compiled as a result of these amendments. As I have said, it is possible currently for the role of non-biological functioning parents to be recognised through parenting orders from the Family Court, rather than automatic legal recognition being given to the same-sex partners of a child's biological parent through this fiction that a child can have two mothers instead of a father and mother. I have drafted an amendment to restore the rights of the father and I am seeking support for the amendment from both Government and Opposition members in their conscience vote. I imagine a conscience vote would apply to amendments as well as to the bill.
Another matter of concern is that this bill will amend the Industrial Relations Act 1996 so that same-sex partners can take partner leave to act as the primary caregiver of a child of whom they are the presumed parent in the first year of the child's life. The provision that only one parent at that time is entitled to extended parental leave is maintained. Members might wonder what is wrong with that. The Industrial Relations Act does not refer to "partner leave"; it refers to "paternity leave". Therefore, this legislation downgrades the father and the father's role not only through the amendments dealing with birth certificates but also through the amendments to the Industrial Relations Act. Suddenly, paternity leave disappears; this legislation removes it from the Industrial Relations Act 1996. That is another example of how these amendments have legal implications. I am not sure that unions have been consulted about these amendments and that their members are happy about removing reference to "paternity leave" and replacing it with this vague term "partner leave". The legislation should refer to "paternity leave" and "partner leave", but I understand it deletes paternity leave altogether.
The other matter of concern is the amendments to the Property Relationships Act 1984. The legislation gives effect to a definition of "de facto relationship" that relies on the gender-inclusive definition. The gender-inclusive definition troubles me because I am sure many members have strong reservations about same-sex legal marriage. At the moment, marriage is clearly defined in Commonwealth law as a union between a male and a female. If we follow this path of embracing the gender-inclusive definition, all references to "male" and "female" are removed and we will refer to a "person" or a "partner". There is no indication whether the person is a male or a female.
I know the State Government would not normally try to change the definition of marriage in this State, because it is a Commonwealth matter and it is covered by Commonwealth legislation. However, pressure has been applied to State and Territory governments—such as the Australian Capital Territory Government—to go it alone and to legalise a form of same-sex marriage. Fortunately at this stage, the Commonwealth Government has opposed the Australian Capital Territory Government's proposed legislation. However, that Government went part of the way by proposing to introduce legislation to provide for a form of legal marriage service that I believe mimics the traditional marriage service.
One could ask what is the difference between that service and a legal traditional marriage. The Australian Capital Territory Government got very close to introducing enabling legislation, but because of Mr Rudd's opposition the legislation was modified—but I still do not support it. That demonstrates that if we were to support a gender-inclusive definition with no reference to the sex of the people concerned—that is, whether they are male or female—but only to a person or a partner, we could almost slip into recognising same-sex marriage, or at least make it difficult to mount an effective opposition because it has been inadvertently done with the appropriate legislative changes. I trust that these examples demonstrate why this legislation should be referred to the Standing Committee on Law and Justice. We established that committee to deal with exactly this type of situation—that is, the legal implications of legislative amendments. In this case, the legislation will amend 57 New South Wales Acts.
A number of members have already made reference to the importance of the role of the father in the life of the child. That is obvious to me. I foreshadow the amendments that I have drafted, one of which may be changed. I refer members to the amendments to the clauses dealing with schedule 1, which deals with anti-discrimination. It is difficult to amend that schedule, so I urge members to oppose it. Amendment No. 2 proposes to insert after line 12 on page 14:
15A Particulars of fathers
Where any provision of this Part requires particulars of a person's parents to be given to the Registrar or noted in the Register in connection with the birth or death of the person, the particulars must identify a parent who is the father of the person as the father.
That deals the birth certificate issues that I raised. The third amendment deals with the Industrial Relations Act and the removal of "paternity leave" and the substitution of "partner leave". The amendment is straightforward; it simply inserts "or partner" after "paternity". The amendment will not delete "partner leave"; it will simply restore the reference to paternity. A number of consequential amendments flow from those amendments.
This bill has only recently been circulated to members of Parliament, but concerns have been raised with me. They are important and should be taken into account by the Government, and particularly by the Minister. A letter from the Anglican Church Diocese of Sydney dated 29 May 2008 states:
Miscellaneous Acts Amendment (Same Sex Relationships) Bill 2008Miscellaneous Acts Amendment (Same Sex Relationships) Bill 2008
I write to you on behalf of the Standing Committee of the Synod of the Diocese in reference to the upcoming debate on the Miscellaneous Acts Amendment (Same Sex Relationships) Bill 2008. We respectfully ask you to seriously consider this complex Bill and urge you not to vote for the passage of the Bill in its current form.
We commend the Government for addressing some of the inconsistencies in current legislation, as well as some of the legal and administrative impediments that are imposed on same-sex couples, which in effect deny the access to various financial and work related benefits that others in the community enjoy.
However there are two aspects of the Bill that particularly concern us.
Exclusion of other relationships of care and inter-dependencyExclusion of other relationships of care and inter-dependency
Our first concern is that many of the benefits proposed to be extended to same-sex couples are equally applicable to other types of caring inter-dependent relationship (eg elderly siblings or disabled family members). We can see no reason in principle why other categories of caring inter-dependent relationship should not also enjoy these benefits proposed to be extended to same-sex couples which are not dependent upon the relationship being a sexual relationship.
It seems to us that while reliance in the Bill on the definition of "defacto relationship" in the Property (Relationships) Act 1984 may be a convenient mechanism to deal with the disadvantage suffered by same-sex couples, it has the effect of unfairly excluding other types of relationship.
Denial of genetic parentageDenial of genetic parentage
Our second concern is that the granting of certain entitlements to same-sex partners compromises the "best interests of the child" by denying the reality of a biological father and a biological mother. In particular, we are opposed to any amendment to the Births, Deaths and Marriages Registration Act 1995 which will allow a same-sex partner's name to be included on a child's birth certificate and we are opposed to the retrospective nature of this amendment.
The letter goes on but I will read just the relevant sections, First:
The birth certificate is an official document of profound symbolic and personal significance to the individual whose birth it registers. Throughout the course of a person's life the need to know the identity of their biological parent often increases and so it is important that the integrity of the birth certificate is maintained on behalf of each child. While we support the establishment of donor registers, we believe that the birth certificate is a superior source of information about one's genetic origins as it is not dependent on the individual first knowing that they are the result of a fertilization procedure. It is the responsibility of the State to protect the interests of the child in this circumstance by ensuring that (to the extent that it is possible) the birth certificate identifies the biological parents.
The letter concludes:
Time prevents us from detailing other concerns we have with the Bill. However we commend for your serious consideration the enclosed statement setting out the principles we have adopted in approaching reforms in this area.
The writer attached a detailed statement of principles concerning same-sex law reform. I will not read that but I seek leave to incorporate that statement in my speech. It is a one-page statement of principle.
Anglican Church Diocese of Sydney
2. The needs of children take priority over the wants of adults.
STANDING COMMITTEE OF SYNODSTANDING COMMITTEE OF SYNOD
Statement of principles concerning same-sex law reformStatement of principles concerning same-sex law reform
1. We support and encourage people to care for each other.
It is not part of our mission to oppose care and support between people. For the purposes of civic order, we are not interested in sexual expression at that point. We support all changes to the law that promote and support relationships of care. Where relationship registers recognise such care, they are welcomed. Of course it follows that we would oppose any changes to the law that privileged same sex relationships over other caring relationships (e.g. for elderly siblings or disabled family members etc.).
3. Marriage is not 'reinventable'.
On the one hand, to the extent that same-sex couples have taken up roles as main carers of children, we support them in that role just as we support single parents). We do so without prejudice to the children concerned. We realise that our opposition to homosexual lifestyle should never take the form of challenging or compromising the security of children for whom these carers are the most significant adults they know. On the other hand, where children are in need of care and the State must decide the child's care arrangements, the State must observe the most conservative possible estimate of best care. This judgement is to be made in the interests of each child, not each applicant. The State's most conservative best estimate should be that a stable, loving, harmonious married couple offer the best conditions for a child's care.
The question of who may be 'married' 'cannot be reduced to whether another extension of individual rights is merited in this case. 'Rather, participants in the debate must confront the question whether marriage, and family, have an enduring structural character that must be reckoned with before courts or legislators rush to judgement on the so-called "rights" question' (J. Chaplin). If the State chooses to 'reinvent' marriage for the sake of an individual's rights, then there is no real limit to what may be called 'marriage'. Supposed expansions of the class 'married' will simply cheapen the currency of the term-and the law will eventually have to find another way to recognise lifetime male-female couples who welcome children.
4. We seek a society that graciously allows cultural space for marriage.
A 'good' society must accept, support and care for families without a 'nuclear' core, but something seems to have gone wrong in a society that does not naturally produce and keep a large proportion of such families. A society needs to do all it can to produce and keep a large proportion of families where stable, loving, harmonious married couples are open to bearing and raising children.
'Marriage' names men and women who give themselves to this excellent task. Use of the term reflects a form 'positive discrimination', which has traditionally been accorded to those who embark upon that task. We ask all in our society to continue to honour marriage in this way. Daily realities of gay liberty and equity would not be compromised by conceding this cultural space to marriage. Hence marriage ceremonies and registration should remain for the married.
We note in this respect the legally expedient redefinition of 'spouse' to include members of same sex and de facto couples. We recognise that this expediency has been used to encompass a variety of care relationships within existing legislation. However we remain concerned that this solution compromises and confuses the proper privilege that society has traditionally accorded to marriage.
Reverend the Hon. FRED NILE:
I have also received a letter dated 29 May from Chris Meney, Director of the Life, Marriage and Family Centre, which is part of the Catholic Archdiocese of Sydney, which is led, as we all know, by Cardinal George Pell. That letter sets out concerns similar to those expressed in the Anglican letter. I will read just some of it. The letter commences:
I am writing to express my concern about the impact of the Miscellaneous Acts Amendment (Same Sex) Bill 2008 which is currently under consideration in the New South Wales Parliament.
As Director of the Life, Marriage and Family Centre, and drawing on my experience as a family and parent advocate, I wish to raise a number of points as a way of providing some assistance for your deliberations. The Centre which I represent is an agency of the Catholic Archdiocese of Sydney in which almost 600,000 Catholics currently reside and who form part of the almost two million Catholics who live in the State of New South Wales.
The Catholic Church has a long and ongoing tradition of acting in the interest of families and children and in particular, for children whose parents are unable to care for them adequately. Catholic agencies have long dedicated significant resources to the care and support of families and to the fostering and adoption of children. We continue to be involved as a significant non-government provider of child placement and related family support services.
Catholics hold strong beliefs about the dignity of the human person, especially children, and of the intrinsic value of marriage and family both for the individual and for the society. Within this context, we are very supportive of processes which place the best interests of the child and their ability to flourish within society as paramount considerations. We are deeply committed to the welfare of both particular children in particular circumstances and also with what is best for children in general.
The letter then goes on to refer to the legislation in detail:
The subject bill currently before the Parliament appears to place at risk essential considerations regarding the best interests of the child. These considerations include a child's right to be known, loved and raised by their biological father. It supplants the role of the father and replaces him with a second adoptive "mother" who is the current partner of a child's biological mother. As such it seems to overturn the long held legal presumption that a child has one father and one mother. If this bill becomes law in its current form it will appear to make a clear statement regarding a number of new social positions which would then be sanctioned and supported by the state.
During your deliberations I ask that you consider if the following positions are either explicitly or implicitly advocated through this proposed legislation and whether or not you support them:
1. Having a mother and a father is an unnecessary duplication.
2. Intergenerational biological connectivity of fathers with their children is no longer important.
Of course, the Catholic Church does not believe these propositions. This is what it believes this legislation provides, and which it opposes. The letter continues:
3. A child has no right to the complete knowledge of his or her biological heritage.
4. Mothers can "father" just as well as men.
5. The needs of children are secondary to the desires and wants of female adults in a relationship.
6. Children do not have a presumed right to the complementary role modelling, care and affection of their biological father.
7. Given that a female same sex partner would have the legal right to "adopt" a child, it would be discriminatory to refuse this right to homosexual men in a relationship under subsequent legislation.
8. Persons and organisations that do not support the right of same sex adults to acquire parenting rights over their non-biological children should be regarded as bigoted and subject to potential legal sanction.
That is why I referred to that amendment to the Anti-Discrimination Act. The letter continues:
9. Given the willingness to now move from a position that accords any special status to, or preferential support for, the ordinary family structure of mum, dad and their kids and the proposed acceptance of a "shared parenting arrangement" as sufficient, the recognition of polygamous and polyamouros relationships should now come under serious consideration.
We have already had a submission from a male homosexual group about adding extra names, so a child could have four parents. I think this has been proposed in Holland. The letter goes on:
I recognise that not all married heterosexuals make good parents and that many mothers who are in lesbian relationships are loving and generous towards their children. We do not favour any unjust discrimination. However, it is of note that a Family Court parenting order can already be used by couples to gain recognition of a shared responsibility for children under current arrangements. All of us should be concerned with giving children the best possible start and ensuring that their right to know and have a significant relationship with their biological father is respected. In particular we should give greater weight to the experiences of those many children who have spoken of the pain of father absence. Children grow up wanting a loving and involved father in their lives. They deserve a better response from government and from society than simply being told that fathers do not matter.
Thank you for taking the time to read this letter. Your response to the issues raised within would be welcome.
Mr Meney has attached a statement about the Catholic Church's attitude. I will just read the headings and not the whole document, but I am happy to make it available to members. He says, "Fathers make a unique and important contribution to a child's wellbeing" and cites evidence to support that. He says, "Replacing a father with a second woman impacts on children" and he provides supporting material for that proposition. Next he says, "Replacing fathers with women places children at greater risk" and provides evidence to support that proposition.
A press release in a similar vein has been provided today, 3 June, by the New South Wales Council of Churches, which represents a number of Christian denominations, excluding the Catholic Church and the Uniting Church, but representing the remaining churches—Anglican, Presbyterian, Church of Christ, Salvation Army, and so on. It commences by stating:
The NSW Council of Churches views with grave concern the introduction of any legislation by the NSW Parliament that undermines the traditional Christian understanding of marriage and family, or attempts to equate same-sex relationships and same-sex parenting with their heterosexual counterparts.
The council provided material to support its proposition. Rather than read onto the record the media release from the New South Wales Council of Churches, I seek leave to incorporate it into Hansard
I will read the remainder of the media release, which states:
2. Same-sex parenting
The NSW Council of Churches affirms the definition of marriage in the Marriage Act 1961 (as amended 2004). Further, the Council believes that marriage is a covenant relationship ordained by God between two people of the opposite sex, and that sexual activity outside of a marriage relationship between a man and a woman is immoral and counter to God's intention for humankind.
3. Birth certificates
The ideal environment in which to raise children, affirmed by the Bible, is a family with one father and one mother who are married to each other. Therefore it is not desirable for children to be raised by same-sex parents. Where a same-sex parenting arrangement cannot be avoided it is appropriate for the state to extend relevant children's rights to the children of same-sex parents, but this must be regarded as an exception to the norm rather than as a precedent allowing further erosion of community standards.
4. Homosexual persons
The NSW Council of Churches opposes the proposal to record on a child's birth certificate the name of a lesbian partner of a child's mother which wrongly indicates that the partner is a parent of the child. Where possible, birth certificates should record the name of the biological mother and biological father of the child. In the opinion of the NSW Council of Churches, the state should not legitimize or encourage a means of producing children that intentionally denies the right of a child to know his or her father (in accordance with practices relating to child adoption).
The NSW Council of Churches encourages a policy of welcoming lesbian, gay, bisexual and transgender persons but does not affirm any form of sexual intercourse outside of a marriage of one man and one woman. Similarly, the NSW Council of Churches does not affirm "alternative" patterns of parenting such as parenting by same-sex couples. The biblical imperative of love and compassion for all people does not extend to celebrating or condoning patterns of behaviour consistently prohibited by the Bible.
We encourage all ministers and church members to affirm the Bible as the supreme authority in all matters of faith and conduct. With respect to sexuality, the Bible teaches that monogamous heterosexual marriage is the only appropriate context for sexual intercourse.
I also received a copy of a media release from Helen Polley, Senator for Tasmania. I am not sure whether she is a Labor or Liberal senator.
Reverend the Hon. FRED NILE:
The Hon. Greg Donnelly: She is a Labor senator.
I thought she was Labor. I will read this as she may speak for some Labor members who have reservations about the legislation. The media release is headed "Fathers Miss Out" and states:
I feel the Miscellaneous Acts Amendment (Same Sex Relationships) Bill 2008 proceeding through the NSW State that Parliament undermines the role of fathers in the family unit.
The Bill proposes that the word "father" be removed from birth certificates to recognise lesbian couples that have had children through IVF.
This Bill is an attack on families.
It is worthy to note that the words "mother" or "maternity" from current legislation will not be removed, only "father" and "paternity". This bill effectively discriminates against fathers.
This Bill will have far-reaching implications for some 57 pieces of legislation. My question is, why should family laws be changed to accommodate a small minority?
I will not read the other lengthy documents that have been supplied to me, but I place on record that the Shared Parenting Council of Australia issued a very thoughtful, rational, six-page statement, headed "NSW Law Says Fathers Not Required". Men's Health Australia supplied a three-page submission in which it made a strong case about removal of the word "paternity" and this became the basis of my foreshadowed amendment. The concluding paragraph of the submission stated:
It is absolutely critical that this language be changed before the final Bill is passed into law. Such a change of the language would not affect the legislative impact of the Bill in any way. Strongly recommended that the NSW Parliament change of their term "partner leave" into the term "paternity and parental leave" in all instances in the Miscellaneous Acts Amendment (Same-Sex Relationships) Bill 2008.
The reasons for the change in language are twofold:
The term "paternity and parental leave" accurately reflects the primary reason leave is being granted by an employer: to father or parent the child. It does this in a way that the term "partner leave" clearly fails to do.
The term "paternity and parental leave" accurately reflects the fact that the vast majority of people who will take this leave are fathers. Mothers' partners (other than fathers) are but a tiny minority at this point. Although it is important to value and not discriminate against them, it is also important to continue to value the very specific parental relationship that fathers (like mothers) have with their children.
Eleven people signed the submission. Many are psychologists, clinical nurses, specialists and social workers, all who are active in the field and know what they are talking about. I hope that my foreshadowed amendment will be supported. The Australian Evangelical Alliance, which represents many churches, has also provided a submission entitled "Same Sex Relationships and the Law". I have received a detailed document from the Australian Christian Lobby expressing concern about the legislation. In a press release dated 2 June, it states:
The Australian Christian Lobby today urged the NSW Parliament to reject proposed law changes which would dismiss fathers from some children's birth certificates and also replace references to fathers and mothers with references to "either parent".
The Australian Christian Lobby provides reasons for its position and in conclusion states:
Society needs to be reaffirming the role of dads in families, not dismissing their very existence from some birth certificates and further marginalising them. It also seems wrong to incorporate deliberate official dishonesty to a child's birth certificate, denying part and parcel of their biological identity.
I have covered sufficient material to indicate widespread concern about the bill. This may come as a surprise to the Attorney General, who perhaps thought this bill was non-controversial. To the contrary, it has caused a strong reaction across New South Wales. Therefore, it would be prudent for the Government to accept my proposition that the bill be referred to the Standing Committee on Law and Justice. Indeed, I do not believe it is urgent and must be passed today. It is far better to pass laws that we can be proud of rather than law that has strong opposition from community and church groups across the State. The Government should not pass the bill simply because it has the numbers. It has a responsibility to re-examine the legislation in light of the implications and the fact that it will require amendment to 57 Acts of Parliament.
[The President left the chair at 6.29 p.m. The House resumed at 8.00 p.m.
The Hon. CHARLIE LYNN
[8.00 p.m.]: The Miscellaneous Acts Amendment (Same Sex Relationships) Bill 2008 seeks to amend various Acts and regulations to give parental rights to same-sex couples over children who were conceived by artificial fertilisation. It also seeks to ensure that children in same-sex relationships are treated by the law as having the same rights and entitlements as the children of other relationships. The introduction of the bill continues the form of this tired Government. It has nothing to do with better government for the people of New South Wales; it is a tacky attempt to divert attention from the Government's electricity privatisation debacle. And what a debacle it is with the lefties in its party totally opposed to the proposition. The spectre of pragmatic forces from the whatever-it-takes school of politics lining up to ram the privatisation of electricity assets through the annual Australian Labor Party conference was frightening. Morris Iemma, Michael Costa, Frank Sartor, Joe Tripodi and Reba Meagher were akin to Mick Gatto and his mates arriving on one's doorstep to recover investors' money from the recent Opes Prime collapse. Mick might be a feared godfather from Carlton's underbelly but he is an absolute pussycat when one compares him with the Iemma-belly of the Labor Right here in New South Wales. "Mandate" is certainly not part of their language. If it were, they would put their proposals for social change into the public arena for discussion before bringing them into this Parliament.
The Hon. John Hatzistergos:
The Hon. CHARLIE LYNN:
No, you did not. Immediately after the 2003 election former Premier Bob Carr introduced a bill to lower the age of consent for young boys from 18 to 16 years. During the election campaign there was not one squeak about Labor's intent to expose vulnerable young boys to sexual predators. But as soon as they clambered back onto the Government benches, they introduced the bill. The bill had nothing to do with the Government's duty of care to vulnerable young people. It was designed as a fillip to the left-wing minority in the party and as a wedge between the conservative and progressive elements of our Liberal team. The Labor Party is aware that our political philosophy allows members to have a view on important social issues and allows them the individual freedom to vote according to their conscience.
This is an important difference between us and the Labor Party, whose political philosophy is based on group think. The trouble with this philosophy is that most Labor members are irrelevant because the likes of Morris Iemma, Michael Costa, Frank Sartor and Joe Tripodi do their thinking for them. And if they do not do what this political underbelly do or say, at the next preselection they are fitted with the political equivalent of cement boots.
The strategy behind the introduction of this bill is the same as that behind the legislation that lowered the age of consent for young boys. There is no need for this bill to be brought before the Parliament at this time. There has not been any public demand for it or debate on the issue. In fact, the Government has been sitting on the Law Reform Commission report into the issue for the past two years. The commission presented its report 113 to the former Attorney General, Bob Debus, in June 2006. It was only released publicly by the Iemma Government on 22 April 2008, simultaneously with the media release of the current Attorney General, the Hon. John Hatzistergos, headed "Rights for Children of Same Sex Female Parents".
The bill seeks to equate the position of a lesbian partner of a woman who has a child after becoming pregnant by a fertilisation procedure, other than sexual intercourse, to the position of a married woman's husband. This is achieved by several means. The bill uses the definition of "de facto relationship" in section 4 of the Property (Relationships) Act, which includes same-sex couples, notably lesbian couples, in amendments to the Status of Children Act 1996. The bill uses the expression "de facto partner" and the definition of "de facto relationship" in section 4 of the Property (Relationships) Act in amendments to the Anti-Discrimination Act 1977, replacing paragraph (f), "in cohabitation, otherwise than in marriage, with a person of the opposite sex."
The bill adds to the definitions of "relative" and "near relative" in the Anti-Discrimination Act 1977 "the de facto partner" of the person, which would include a lesbian partner of a woman who bears a child after becoming pregnant by a fertilisation procedure. The bill introduces the expressions "birth mother" to replace "mother" and "both parents" to replace "the father and the mother" in amendments to the Births, Deaths and Marriages Registration Act 1995. I will deal with this issue in more detail later in my speech. However, it is the issue that has stirred the most concern in the community, and it is the issue about which I am most concerned. The bill replaces "paternity leave" with "partner leave" in the Industrial Relations Act 1996, to include same-sex lesbian de facto partners. Members should be aware that New South Wales has no law preventing single or lesbian women having access to in-vitro fertilisation, gamete intrafallopian transfer, or other fertilisation procedures, as occurs in other States.
I will now refer to some of the changes in more detail. Currently the Status of Children Act 1996 recognises, under section 14, the presumption of parentage that arises out of the use of fertilisation procedures. At present those rights are afforded only:
(1) when a married woman has undergone a fertilisation procedure as a result of which she becomes pregnant:
(a) her husband is presumed to be the father of any child born as a result of the pregnancy even if he did not provide any or all of the sperm used in the procedure, but only if he consented to the procedure, and
(b) the woman is presumed to be the mother of any child born as a result of the pregnancy even if she did not provide the ovum used in the procedure.
Section 14 (6) of the Status of Children Act 1996 recognises that a married woman is a woman living with a man as his wife on a bona fide domestic basis although not married to that person. References to a husband are also to be taken in this vein under section 14 (6) (b) (i), effectively a de facto relationship. Under the current provisions, and also under the proposed changes, section 14 (2) specifies that the man who provides the sperm, if not the woman's husband—which would be read as "de facto" also in line with section 14 (6) (b) (i)—is presumed not to be the father. Also under section 14 (3), a woman who donates ovum for the procedure is not considered to be the mother.
The bill seeks to insert in the Status of Children Act section 14 (1A), which would give recognition of both persons involved in a lesbian de facto relationship in this area. Recognition is given to the woman who has become pregnant as the mother, even if she did not provide the ovum, and the other woman in the relationship is presumed to be "a parent", so long as she consented to the procedure. The bill also inserts new section 14 (5A), which creates a presumption that the consent of a woman in a de facto relationship to such a procedure would be assumed.
Section 14 (6) (a) is amended from "living with a man as his wife on a bona fide domestic basis although not married to him" to read "in a de facto relationship with a man", and section 14 (6) (b) (i) is amended similarly. "De facto relationship" within this Act has the same meaning as it does in the Property (Relationships) Act 1984. The amendments will apply to procedures undertaken and consent given before the amendments but will not affect the previous operation of the law, any will, or the vesting in possession or in interest of any property.
The bill amends the Anti-Discrimination Act 1977 to insert a recognition of de facto partner and de facto relationship under the Property (Relationships) Act 1984. The bill removes the definition of "marital status" under section 4 (1) and replaces it with "marital or domestic status". That definition is identical except for the replacement of paragraph (f), which reads "in cohabitation, other than in marriage, with a person of the opposite sex", with "in a de facto relationship". The bill also amends the Act to include "de facto partner" in the definition of "near relative" and "relative". Changes are also made to many other sections of the Act to amend it to read "marital or domestic relationship".
Within the Births, Deaths and Marriages Registration Act 1995 "mother" in most instances is amended to read "birth mother". Under section 18, registration of parentage details, the legislation, if amended, would read, "both parents", rather than "the father and mother". The words "or de facto partner" are inserted after "spouse". Provisions are also brought in as a consequence of changes in the Status of Children Act and savings provisions subsequent to that Act to allow for an application to the Registrar for addition of registrable information about the identity of a woman who is presumed to be the parent of a child. The Registrar must not change the register unless the application is made jointly by that women and the birth mother, the completed registration also includes a father who has consented to the removal of his details. Other Acts are amended to include definitions of "de facto" or "de facto partner" in line with their meaning under the Property (Relationships) Act 1984. "Domestic violence" is also amended to read "personal violence".
An enormous amount of research is available in regard to family relationships and the raising of children but it seems to me that much of it is inconclusive. It is for that reason that I believe the debate should be in the public arena to allow organisations from all persuasions and backgrounds to research, discuss and debate and to present their findings to their elected representatives. As a result members of this House would be more informed to allow them to make decisions that will have significant social consequences. On 7 May 2008 a report of the Agence France Press international newsagency stated:
An ever-growing number of gay couples are paying tens of thousands of dollars to have surrogate mothers carry their babies turning America's concept of traditional family on its head.
It took two women and two men of two-year old twins Katherine and Connor to come to life.
Their fathers, Michael Eidelman and A. J. Vincent, who have lived together for years, invested love, time and all their savings to build their family in New York's Chelsea neighbourhood.
The eggs were donated by a woman in Washington state and fertilised in vitro with sperm from both men. The fertilised egg was then inserted in the uterus of a woman from Ohio.
Each man is the biological father of one of the twins, who were born in Los Angeles, where the laws are less stringent for same-sex couples.
"I am so glad we chose that pathway," said Idelman, a 40-year-old dermatologist.
"It definitely has challenges on a day-to-day basis. You never know what is coming your way," he said. "But, on the other hand, it is more rewarding than any other thing I have done in my life."
To fulfil their dream of parenthood, the couple turned to Circle Surrogacy, a company that helps people find egg donors and host mothers and navigate through the legal and medical insurance process.
"It is a very successful business," said Circle Surrogacy President John Weltman.
"In 12 years we have grown 6,000 per cent with no borrowing whatsoever and profit made every month," he said. "We expect to double in the next two and a half years."
When the company was launched, 10 per cent of its clients were gay couples. Today 80 per cent are same-sex couples from 29 countries.
"Actually, of the 250 or so couples that we have helped, all but about four are still together, a less than two per cent break up rate, as opposed to the national average of 50 per cent," he said.
The "gay baby boom" has made families with two fathers a common sight in New York City's daycare centers and parks, although gay couples legally marry only in one US state, Massachusetts.
"It is not looked at any more as something so weird or strange," said Sanford Bernardo, president of the Northeast Assisted Fertility Group from Boston, Massachusetts.
"More and more people are doing it," said Bernardo, whose company has clients from Asia to the Middle East and Europe. "It is not for celebrities anymore."
The process costs at least 100,000 dollars, with 25,000 dollars going to the surrogate mother and between 4,000 dollars and 10,000 dollars to the egg donor. The rest goes to the agency, medical costs and legal fees.
Coupled with adoption, the number of families with gay parents is growing. According to the American Academy of Paediatrics, between one million and nine million children under the age of 18 have same-sex parents today.
Henry, a blue-eyed baby turning two in August has two fathers—Christopher Hietikko and Jeffrey Parsons—both in their 40s. His surrogate mother, a lesbian from California, has been made part of the family.
"We became very close and still are very close," said Parsons, a psychology professor at Hunter College. "We did not want to treat it as a business arrangement. We wanted to treat it more like creating a family."
The two men don't know who fathered Henry, but they will take a DNA test once they are ready for a second child to decide who will be the next baby's biological dad.
For their first child, the sperm samples from both men were mixed together to give each an equal chance of becoming the biological father, Parsons said.
The boy was born in California, and the names of both fathers appear on the birth certificate.
The psychologist insists that children born in these 21st-century families are as happy as kids whose parents are a woman and a man.
"The research shows very clearly that what children need the most to strive and survive is a safe, and secure, and loving home," he said.
"It really doesn't matter whether there are two moms in that home, two dads in that home, a single dad, a single mom, whatever, as long as a child knows that he/she is loved and is cared for."
Research does not support what those people are saying. On 30 January 2008 Elizabeth Marquardt gave a presentation to the Iona Institute in Dublin on the subject of "How redefining marriage redefines parenthood". In her presentation, which was entitled "Do Fathers matter? Do Mothers matter?", she said:
Worldwide trends in law and reproductive technologies are redefining parenthood in ways that increasingly put the interests of adults before the needs of children.
She makes a very important point because what we talking about here are the interests of adults. At this stage of the debate there is no research available relating to the interests of children. Elizabeth Marquardt continued:
Around the world, the two-person, mother-father model of marriage and parenthood is being challenged. The growing emphasis is on meeting adults' rights to children rather than children's needs to know and be raised, whenever possible, by their mother and father.
Trends driving this revolution in parenthood include high rates of divorce and single-parent childbearing, the growing use of egg and sperm donors, support for same-sex marriage, and increasing interest in group marriage arrangements. These changes are proceeding at breakneck speed as reproductive technologies advance, as science continues pushing the boundaries on baby-making, and as new constituencies are more openly raising children and advocating for legal and public recognition. Quite often the state is actively supporting and at times leading the way in the revolution in parenthood.
In law and culture, the new idea is that children are fine with any one or more adults being called their parents so long as the appointed parents are nice people. But how do children feel about the brave new world of parenthood? Do fathers and mothers matter to children? Does how they feel matter?
Among the changes that are redefining the two-parent, mother-father model of parenthood are:
In Canada, the law that recently legalized same-sex marriage nationally also quietly erased the term "natural parent" across the board in federal law, replacing it with the term "legal parent". With that little-noticed change the focus of the law dramatically shifted from the mother and father who make the baby to the adults the state decides are a child's appropriate parents.
In Spain, after the recent legalisation of same-sex marriage the National Civil Registry struck the words "mother" and "father" from the first document issued to every newborn by the state. Instead, all birth certificates will now read "Progenitor A" and "Progenitor B."
A similar proposal was made in Massachusetts after the legalization of same-sex marriage. The public health department there proposed amending birth certificates for all children in the state to read "parent A" and "parent B" rather than "mother" and "father".
In New Zealand and Australia, influential law commissions have proposed allowing children conceived with use of sperm or egg donors to have three legal parents. Yet neither group addresses the real possibility that a child's three legal parents could break up and feud over the child's best interests.
Other steps governments are taking signal a greatly heightened level of state intervention and increasing control over reproduction and family life.
In Britain, a recent law banning donor anonymity caused a purported drop in the number of persons willing to donate sperm or eggs. Soon thereafter the government health service began an active campaign to recruit sperm and egg donors, no longer just allowing the planned conception of children separated from one or both biological parents, but now very intentionally promoting it.
In another example of active state support, in high-tax Denmark the state subsidizes the practice of sperm donation by allowing the income earned by sperm donors to be tax-exempt. The Danish company Cryos, one of the world's largest sperm banks, ships almost three-quarters of its sperm to individuals and couples overseas—all with the implicit support of the Danish taxpayer. And in a recent, dramatic step, the Danish parliament recently passed a law that gives lesbian couples and single women the right to obtain free artificial insemination at publicly-funded hospitals.
Elizabeth Marquardt went on to say:
In Australia, a law passed in 1984 that allows sperm donors to contact their over-18 offspring has now raised the prospect that, starting this year, young adults who were conceived using donor sperm might receive a letter from the state alerting them to the sperm donor's wish to contact them. In Australia, as elsewhere, most young people who were conceived with donor sperm were never told the truth by their parents. To help offset the potential shock, the state government in Victoria has proposed a public advertising campaign warning all young adults that they could be contacted by a sperm donor father they never knew about.
Meanwhile, in the United States the field of reproductive technology continues in an almost unregulated environment. All too frequently courts must decide who a child's parents are, picking and choosing among the many adults who might be involved in planning, conceiving, birthing and raising a child.
In Pennsylvania a judge recently had to decide parentage in a case in which a surrogate mother carried triplets for a 62-year-old man and his 60-year-old girlfriend. When the couple failed to pick up the infants, the hospital initiated steps to put them in foster care. In response, and eventually with the judge's approval, the surrogate mother took the children home and began raising them as her own. But the commissioning couple continues to fight for access to the children (and the 62-year-old man has been ordered to pay child support), while the college student who contributed her eggs for their conception asserted her parental rights as well.
Recently the California State Supreme Court heard three cases of lesbian couples who had used sperm donors to have children and then split up. In these cases the non-biological mother figure (none of whom had adopted the child) was either denied access to the child or wished to have no further financial obligations to the child. The courts ruled in all three cases that the non-biological mother figure is like a child's father and should be granted full parental status and held to the same standard of rights and responsibilities. The outcome has potentially far-reaching implications not just for same-sex couples but also for the many heterosexual couples in stepfamilies, as well as those who might use reproductive technology or temporarily raise children together without marriage, adoption or other legal arrangements.
In fact, today same-sex couples, adoptive parents, singles and infertile couples using donors now routinely petition to have one or both biological parents left off the birth certificate—and even to have non-biological parent figures included without going through the process of adoption. In Quebec, when a woman in a same-sex civil union gives birth, her female partner is presumed to be the father and can be registered as the father on the child's birth certificate. A similar ruling was recently made in Ontario. Last year, a New Jersey judge ruled for the first time in that state that the same-sex partner of a woman who conceives with donor sperm has an automatic right to be listed as a birth parent on the child's birth certificate without formally having to adopt a child. The state of California shows a "second mother" to be entered on the birth certificate as the child's father. Earlier this year, Virginia issued a birth certificate to a lesbian adoptive couple that reads "Parent 1" and "Parent 2", after the couple rejected having one of their names put in the blank space under "father". A similar suit was filed in Oregon. More are likely.
Elizabeth Marquardt went on to look at how the global redefinition of parenthood threatens a child's identity. She asked:
Why should we be concerned about the many rulings, laws and proposals around the world that are aimed at redefining parenthood?
A good society protects the interests of its most vulnerable citizens, especially children. Right now, the institution that is most core to children's very survival—that of parenthood—is being fundamentally redefined with the state giving its implicit support and at times leading the way.
The common thread running through many of these decisions is the adult's right to a child. These claims are important. The desire for a child is a powerful force held deep in the soul. This desire must be responded to with respect and compassion. The claim that medicine and society should help those who cannot bear children is a legitimate one.
But the rights and needs of adults who wish to bear children are not the only part of the story.
Children, too, have rights and needs.. For example, the United Nations Convention on the Rights of the Child, ratified in 1989, states that "the child shall have the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by his or her parents". The authors of the convention understood several key features necessary to human identity, security and flourishing—having a name, being a citizen of a nation whose laws protect you, and, whenever possible, being raised by the two people whose physical union made you.
Adults who support the use of new technologies to bear children sometimes say that biology does not matter to children, that all children need is a loving family. Yet biology clearly matters to the adults who go to extreme lengths —undergoing high-risk medical procedures; procuring eggs, sperm, or wombs from strangers; and paying a lot of money—to create a child genetically related to a least one of them. In a striking contradiction, these same people will often insist that the child's biological relationship to an absent donor father or mother should not really matter to the child.
Of course, there is a very real and urgent role for the state to play in defining parenthood. Some biological parents present a danger to their children. Adoption is a pro-child social institution that finds parents for children who desperately need them. It is a highly admirable expression of altruistic love, a kind of love that transcends our hard- wired tendencies to protect our blood relations above all others. But the existence of legal adoption was never intended to support the argument that children don't care who their fathers and mothers are, or to justify the planned separation of children from biological mothers and fathers before the children are even conceived.
Certainly, biology is not everything. It does not and should not determine the full extent or depth of human relationships. Biological parents are tragically capable of harming their children, and some children are better off removed from these parents. But the actions and testimony of children and adults, as well as a great deal of social science evidence, powerfully suggest that biology does matter.
Elizabeth Marquardt went on to discuss a child's point of view. She said:
To be perfectly clear, the question is not whether children love the parents who raise them. Children almost universally and unquestioningly love their parents, whether their parents are married, divorced, single, gay or straight. Rather, the question is how children feel and how they make sense of their identities when their mother or father (or both) is absent from their daily lives.
The first generation of donor-conceived children, who are now coming of age form a remarkable case study to explore this question. Most children in this first generation were conceived by married heterosexual couples using donor sperm. Anecdotally, many are now speaking out about the powerful impact on children's identity when adults purposefully conceive a child with the clear intention of separating that child from a biological parent. These young people often say they were denied the birthright of being raised by or at least knowing about their biological fathers. They say that this intentional denial profoundly shaped their quest to understand who they are.
How many people do we meet in everyday society in Australia who in their 50s and 60s are still trying to work out who they are? These circumstances make it that much more difficult. Elizabeth Marquardt continued:
Donorconceived teenagers and adults are forming organisations, being quoted in news articles, and using the Internet to try to contact their sperm donors and find half-siblings conceived with the same sperm. They hail from the United States, Canada, Australia, Britain, Japan and elsewhere. Numbers are hard to come by, but estimates are that the number of children now born in the US each year through artificial insemination range from 30,000 to 75,000 and that about 3,000 each year are conceived using donor eggs. While the numbers arguably are small, they are growing and the stories these young people tell raise questions not only about their own experiences but about the prospects for the next generation of children.
Donor conceived young people point out that the informed consent of the most vulnerable party— the child— is not obtained in reproductive technology procedures that intentionally separate children from one or both of their biological parents. They ask how the state can aid and defend a practice that denies them their birthright to know and be raised by their own parents and that forcibly conceals half of their genetic heritage. Some call themselves "lopsided" or "half-adopted." At least one uses the term "kinship slave." Some born of lesbian or gay parents call themselves "queer spawn", although others in the same situation find the term offensive. No studies have been done on these young people's long-term emotional experience.
This is the point: we are not scientific beings; we are not logical beings; we are emotional beings—human beings.
Clearly, rigorous long-term studies need to be done. For now, we should listen to their compelling voices.
In interviews, donor conceived young adults often say something like this: My sperm donor is "half of who I am." One young woman says she wants to meet her donor because she wants to know "what half of me is, what half of me comes from". Another says, "I want to meet the donor because I want to know the other half of where I'm from." Another is seeking information because, she says, "I feel my right to know who I am and where I come from has been taken away from me."
A 17 year old in Texas plans to ask the California sperm bank that aided in her conception to forward a letter to her donor when she turns 18. "There's a lot of unanswered questions in my life and I guess I want the answers," she explained. By contrast, her mother, interviewed for the same story, observed, "As a woman dealing with the prospect of infertility, all you want is that babyIt never even occurred to me this child might want to find her biological father someday."
Just recently a 14 year old girl in Pennsylvania wrote to Dear Abby after finding out she was conceived with donor sperm. In just a few sentences she identified some of the enormous identity issues that confront donor conceived young people and that are now a challenge to our society. She wrote: "It scares me to think I may have brothers or sisters out there, and that he may not care that I exist." This young teenager, struggling alone with feelings of abandonment, grief, and confusion, poignantly challenged the current legal and social position on this issue: "I don't understand why it's legal to just donate when a child may be born."
The social evidence suggesting the importance of biological parents was the next part of Ms Marquardt's presentation. She stated:
From a social scientific point of view, what we do know about children's experiences when they do not grow up with their own mother and father? In many areas we know a great deal. In some, we need to learn more.
Increasing numbers of people are realizing that marriage has important benefits for children. What many do not know is that there is something about the marriage of a child's own mother and father (as opposed to a remarriage) that on average brings these benefits. On many important indicators of child well-being, such as teen pregnancy, educational failure, delinquency and child abuse, children raised in stepfamilies look more like children of single parents than children raised by their own, married mother and father.
Some who advocate for legalized same-sex marriage say that it will be good for children because the children will now have two parents., But the stepfamily data suggest it may not that simple. We don't know how much the poorer outcomes in stepfamilies are due to the history of dissolution and other unique problems facing stepfamilies, and how much is due to the child being raised in a home with a non-biologically related stepparent.
Moreover, the existing research on same-sex parenting is small and limited because same-sex couples raising children comprise a very small part of the overall population and are only recently becoming more visible. And a big problem with the current literature is that most of it compares single lesbian mothers to single heterosexual mothers - in other words, children in one kind of fatherless family with children in another kind of fatherless family.
We have far more to learn. But evidence and sensitive observations of children's lives strongly suggest the importance to children of recognizing their need to be raised, whenever possible, by their own mother and father (with adoption as a critical, pro-child back up plan) and the importance of recognizing the absence of their mother or father as a serious loss for a child.
Ms Marquardt went on to speak about the revolution in parenthood and asked what is next. She raised the issue of the increasing slippage in the meaning of fatherhood and motherhood and psychological parenthood. She stated:
The revolution of parenthood is contributing to further deep uncertainties in the meanings of fatherhood and motherhood.
And this is the core of our concern with this legislation—
By far the most striking and potentially far-reaching development - one already being witnessed in numerous courts - is the increasing recognition of "psychological" parenthood or "de facto" parental status. In the United States at least ten states, including Washington, California, Maine, Massachusetts, New Jersey, and Wisconsin, now allow someone with no biological or adoptive relationship to a child (and no marital relationship to a child's parent ) to be assigned parental rights and responsibilities as a psychological or de facto parent. To determine retrospectively whether an adult was a "parent" in a child's life the courts examine indications such as whether the adult lived in the same household as the child, was encouraged to act as a parent by the child's existing parent, had acted like a parent without expecting financial compensation, and had spent enough time with the child to have bonded with him or her. In many of these cases the petitions are brought by ex-partners who charge that the child's existing parent is denying their rights to the child. In other cases the child's existing parent charges that the ex-partner is no shirking parental responsibilities. These cases typically concern same sex partners, but they also have serious, as yet unknown implications for the many heterosexuals who are or have been a child's stepparent or a parent's live-in partner.
The meaning of motherhood and fatherhood is encountering further challenges in the hard sciences. Right now, scientific research around the world with the DNA in eggs and sperm that is raising the possibility that children could be born from one genetic parent, two same-sex parents, or three parents. Headlines recently announced research at leading universities in Britain and New Zealand that could enable same-sex couples or single people to procreate. British scientists have been granted permission to create a human embryo with three genetic parents, and last year, a team in Scotland tricked an egg into dividing and created an embryo without a genetic father. Japanese scientists have already created a mouse with two genetic mothers and no father.
Meanwhile, the stem cell research field is growing ever closer to the fertility industry, as scientists strike bargains with doctors to secure eggs needed for therapeutic cloning from women undergoing fertility treatments, and as cloning techniques are perfected with the likelihood that they will one day, sooner or later, be used to produce babies. James Watson, of Watson and Crick fame, and Robert Edwards, the father of IVF treatment, last year both called at a public conference for reproductive cloning to be made available to couples who have exhausted all other options. In the hard sciences too, the two-person, mother-father model of parenthood is facing serious challenges.
New developments in the marriage debate are also posing new challenges:
Whatever one's feelings about the legalization of same-sex marriage, and however emphatically most advocates of same-sex marriage say they do not support group marriage, recent events make clear that successes in the same-sex marriage movement have emboldened others who wish to borrow the language of civil rights to break open the two-person understanding of marriage and, with it, parenthood. These efforts are emerging from at least two surprising directions.
Polyamory - Polyamorists are perhaps the newest, most unfamiliar players on the scene. Polyamory (meaning "many loves") is different from polygamy (meaning "many marriages"). Polyamory involves relationships of three or more people, any two of whom might or might not be married to one another. Advocates for polyamory often explicitly mimic the language used by supporters of gay, lesbian, and bisexual people. They say they must keep their many loves "in the closet."
It would be crowded in the closet—
That they cannot risk revealing their personal lives for fear of losing their jobs or custody of their children. That to reveal their inner "poly" nature is "coming out of the closet." That being poly is just who they are. For these folks, if two parents are good for children, then three or more "parents", spread among one or more households and sharing a sexual relationship with one another, is even better.
The topic of polyamory is emerging at the cutting edge of family law and advocacy, and among religious organizations the Unitarian Universalists for Polyamorous Awareness hope to make theirs the first to recognize and bless polyamorous relationships.
Polygamy – Polygamy, of course, is much better known and is currently criminalized in the United States and much of the west.
This might change. The new polygamy series on HBO, "Big Love", spawned surprisingly positive coverage of polygamy this spring, including sympathetic television interviews with polygamous families, a spate of news stories, including the opinion of polygamy activists that theirs is the next civil rights battle, and even a New York Times columnist who argued, "If polygamy is the strongest argument against same-sex marriage, then let the wedding bells ring. And in a development that shocked many Canadians, two government studies released last winter by their Justice Department recommended the decriminalization of polygamy. In the US and Canada a number of legal scholars are arguing, as one columnist summarized, that "the abuses of polygamy flourish amidst the isolation, stigma, and secrecy spawned by criminalization." Polygamy, per se, is not the problem, only "bad" polygamy.
So, what do we do now?
Given that in some ways the genie is already out of the bottle, it is not entirely clear what actions state and social leaders should take in the near future. For instance, with regard to reproductive technology, some nations have moved to ban the practice of anonymous donations of sperm and eggs. This would seem to be a positive development for children—after all, there is a strong argument to be made that children have a right and need to know their origins. Yet greater acceptance of the idea that donor conceived children have a right to know their origins is also leading to the idea that these children should have the possibility of some kind of relationship with their sperm or egg donor (and not just a file of information), or even that the donor should have some kind legal parental status in the child's life, such as in New Zealand and Australia where commissions have proposed allowing donors to "opt in" as children's third legal parent.
What might the future hold for children with three or more legal parents? We have no idea.
Or, in another example, after Britain passed a law banning donor anonymity there was a purported drastic drop in the number of men willing to donate sperm. Couples in that nation who wish to conceive now have even greater incentive to go abroad to nations and regions that have less regulation—such as Spain, India, Eastern Europe or elsewhere—to procure sperm or eggs or surrogate wombs, making it even less likely that their child will ever be able to trace their origins or form a relationship with a distant (and sometimes impoverished) donor abroad.
Again, how will these developments affect children? At the moment we have no real idea, but we certainly do have serious and immediate causes for concern.
For reasons like these, this report does not conclude with the usual list of specific policy recommendations. Rather, this report issues a call to fellow citizens of the United States and Canada and around the world. The call is for all of us to participate in urgently needed conversation and research about the revolution in parenthood and the needs of the children.
This report is just as appropriate here in Australia. The Government has sat on this report for two years; it has kept it under a blanket. It has been used for blatant political reasons—to take the heat off the electricity privatisation debacle.
The Hon. Christine Robertson:
That is nonsense.
The Hon. CHARLIE LYNN:
It has. Otherwise it would have been out in the public arena and debated by people across the board. It would have been raised in this place so that we could have a more informed debate. That has not occurred. The report continues:
The Hon. Christine Robertson:
To provide time and space for this conversation and for more research, this report also calls for a moratorium or a "time out" lasting five years. Until we better understand and prioritize the needs of children, no legislatures, courts, or commissions should press forward with recommendations or changes that broadly undermine the normative importance of mothers and fathers in the lives of children
You have talked for three-quarters of the—
The Hon. CHARLIE LYNN:
The member might not have the interests of children at heart—that is quite obvious given her comments—but we do. That is why we support this type of report. The report continues:
The Hon. Christine Robertson:
nor should they support intentionally denying unborn children knowledge of and a relationship with their own mother and father. Rather, they should concentrate their energies on rigorous inquiry and active debate about the needs of children—
Unless you choose which ones should have a relationship with their mother and father.
Order! I ask members to cease interjecting on the Hon. Charlie Lynn.
The Hon. CHARLIE LYNN:
Particularly when they have nothing substantive to say.
Order! The Hon. Charlie Lynn will address the bill before the Chair.
The Hon. CHARLIE LYNN:
The report further states:
Rather, they should concentrate their energies on rigorous inquiry and active debate about the needs of children and the role of mothers and fathers in their lives.
The facts are this: Unless and until same-sex procreation or three-person reproduction becomes a reality, children will always arise from the union of one man and one woman. All children have, as the French feminist philosopher Sylviane Agacinski calls it, a "double origin," that of a mother and a father, an origin we cannot deny and that the children certainly cannot ignore, for they see it every time they look in the mirror. When we change the mother-father dimension of marriage or the two-person understanding of marriage, we also change understandings of parenthood in ways that dramatically impact the future for children.
Do mothers and fathers matter to children? Is there anything special—anything worth supporting—about the two-person, mother-father model? These are the questions on the table. Let's not experiment with a new generation of children and wait for the results to come in twenty years down the road. The time to take on these questions is now.
I commend that report to the House because every word is relevant to this debate. Members opposite want to rush the legislation through without any concern for the implications for the next generation. They will be living on their pension then; they will not worry about it. If they are genuinely concerned about the next generation, they should explore this research, which at this stage is inconclusive.
The Attorney General stated that children of same-sex relationships should have the same rights and entitlements as children of other relationships and that the changes to be enacted will ensure that the laws of intestacy will apply equally to the children of same-sex parents where the parents die without making a will. Although he would encourage all members of the community to make a will and keep it up to date, the rules of intestacy are an important safeguard for preserving the inheritance rights of the families of those who may die without having done so.
The Attorney General also stated that a key motivation for the Government in enacting these new parenting presumptions is to ensure that lesbian same-sex parents can take parental responsibility for their children with respect to their health, education and general wellbeing in the same way as is expected of all other parents. Thus consequential amendments are being made to the Births, Deaths and Marriages Act 1995 to ensure that both parents can be named on the child's birth certificate. This is an important measure because it will enable both parents of a child created as a result of a fertilisation procedure provided to those in a lesbian same-sex de facto relationship to hold themselves out as the child's parents in circumstances where evidence of the parent-child relationship is demanded by public institutions such as hospitals and schools. It will also enable same-sex parents to engage with other authorities, such as sporting registration bodies, so often encountered by parents in the course of bringing up children.
Others have argued that the law needs to keep up with advances in technology, such as in artificial reproduction and changes in domestic arrangements. The report is inconclusive in that area. Changes enacted by this bill will help to create greater acceptance for same-sex couples in our society, breaking down barriers that have existed for many years. I do not have any issue with this. However, they should not reduce the status of mothers and fathers. This bill goes much further than earlier changes to property rights, because it involves the upbringing of children from an early age where they have no say as to whether they would want to be raised in a household with same-sex parents. That is a very important issue. This debate is about the rights of the adult, not the child. We do not know what the long-term consequences will be. Given the twittering on the other side, it would appear members opposite do not care.
The former Attorney General, Mr 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 incorporated same-sex relationships, to change marriage or adoption laws—it was dealing with property. Mr Shaw said:
The definition of "de facto relationship" contained in the bill makes it clear that this is not a law about marriage. I take the opportunity to remind honourable members of the definition contained in the bill. It states:
For the purposes of this Act, a de facto relationship is a relationship between two adult persons:
(a) who live together as a couple, and
(b) who are not married to one another or related by family.
The definition makes it abundantly clear that the bill cannot relate to relationships between married people; nor can it be interpreted as in any way attempting to create marriage relationships between couples. It seeks to provide a scheme for property redistribution and, in some cases, maintenance on the breakdown of intimate relationships where the parties cannot access the rights available to married partners precisely because they are not married.
In any event, as honourable members are aware, it is not possible for any State legislature in this country to make laws relating to marriage, gay or otherwise. Pursuant to section 51 (xxi) of the Australian Constitution only the Commonwealth may make valid laws relating to marriage. That being the case, the amendment proposed by Reverend the Hon. F. J. Nile is unnecessary, but we do not oppose it and will not vote against it.
The then Attorney General went on:
I have only had short notice of the amendment to the amendment moved by the Hon. J. M. Samios. I have not really had time to consider it. It seems to indicate that the bill does not address the issue of or affect the law regarding adoption of children. If there is some other entitlement by law, it is not seeking to displace that. My immediate reaction, doing the best that I can in the tight time frame available, is that the Government will not oppose the amendment to the amendment. It seems to be a declaration of what I believe is the legal effect of the bill in any event. So the amendment as amended will not be opposed by the Government.
This same Government is now acting contrary to that statement. The Law Reform Commission had no qualms in recommending the definition to be used and the Government had no qualms in accepting the replacement of the definition of "de facto relationship" in the numerous Acts to be amended by the bill. It is most likely that the heterosexual definition in the Adoption Act, enacted after the insertion of a broader definition contained in the 1999 Property Legislation (Relationships) Amendment Act, will inevitably be next on the agenda. Enacting this type of legislation undermines the laws forbidding same-sex marriages, gay adoption, and on it goes. It transforms in a major way one of the most fundamental features of marriage—parenting. Many believe there is a greater potential for children raised by same-sex couples to suffer developmental problems and to be more likely to struggle with their own sexuality.
The integrity of the traditional family unit comprising a mother and a father is important to me and to the people I represent. Any legislative changes that recognise other forms of family relationships should not undermine the special status of the mother and the father within a family. I note the observation by Reverend the Hon. Dr Gordon Moyes about the names of same-sex couples appearing in documents or passports that travellers might be required to carry as a result of the war against terrorism. Young people travelling through less tolerant countries could be victimised as a result of this change. I acknowledge the suggestion by my colleague the Hon. Rick Colless about the issuing of a parenting certificate. This would allow the details of the biological mother and father to remain on birth and death certificates and would allow more flexibility in the event of changes in same-sex family relationships. That seems to be a good, commonsense idea the Government could take on board.
I will not support the bill if my proposed amendment is not supported, because the legislation has been brought before this House for the wrong reasons. The Government has had plenty of time to prepare draft legislation for public debate over the past two years, but instead it has kept it under wraps and is using it as a wedge against Opposition members. If the Government were genuine in its concern for same-sex family relationships and the welfare of children raised in experimental social environments, it would allow a conscience vote amongst its members. Of course, it will not do this because its objective is to divert attention from the mess it has created in managing the affairs of this State. If the Government were fair dinkum, it would withdraw the bill and put it before the public so that the interest groups of all persuasions could do proper research and present their findings and views to their parliamentary representatives. But the Government will not do that. As a result, I will not be supporting the bill
I congratulate Opposition members on their healthy respect for other members' views on the bill. We are capable of independent thought and have demonstrated a commitment to Dr Stephen Covey's dictum to seek to understand before being understood and to respect different opinions about important social issues such as this. It is a pity that the Government has to resort to group thinking to ram social engineering legislation through the Parliament. I intend to move an amendment to the bill in Committee.
The Hon. DUNCAN GAY (Deputy Leader of the Opposition) [8.53 p.m.]: I congratulate all members who have spoken to the bill. The debate has been conducted with tolerance and decency, and very different views have been expressed. My friend the Hon. Charlie Lynn referred to research on polygamy and similar activities. However, I am only aware of Pollyanna, a Disney film based on a classic novel, about someone who wants everything to be nice. I hope I am able to approach the issue from that point of view. This bill and its concept is supportable. However, some members who support same-sex couples' recognition rights find it hard to do so if it means the removal of other rights. A wrong cannot be redressed by removing a right. For example, what is the definition of "parent-cum-father"? I am persuaded somewhat by the amendment foreshadowed by the Hon. Charlie Lynn that intends to reinstate the word "father" without removing the rights of lesbian couples with children.
I am told by my colleagues and Government members that this amendment technically does not achieve that aim. If the amendment is proven to be discriminatory rather than helpful, I will not be able to support it. Sadly, that would mean I could not support the bill—and I would like to support it. I would need to be convinced that the Hon. Charlie Lynn's amendment is a fair amendment that will do exactly what it is meant to do. I hope it does just that and does not remove the rights of others. If members show me that the amendment will remove the rights of others, I could not support it and, therefore, could not support the bill as it stands. The only other way I could support the bill would be if the Attorney General, rather than giving veiled undertakings about inserting "parent or father" by regulation, actually puts that provision in the bill. That would certainly enable me to support the bill.
Either the Hon. Charlie Lynn's amendment is accepted, or the Attorney General has to insert a provision in the bill that will address concerns about giving rights to some people—rights that should be granted—by removing the rights of many others. I leave it with the Government. I do not want to vote against the bill but that is where I stand.
The Hon. CATHERINE CUSACK [8.57 p.m.]: The term "motherhood" has a particular meaning in politics. A motherhood statement is one that is agreeable to all and should not be attacked under pain of making a fool of oneself. People who are prone to making motherhood statements are vulnerable to criticism that their remarks are so agreeable that all meaning has been stripped from them, rendering them wholly useless for the purposes of debate. The term "motherhood" has had other meanings in civic affairs. For several centuries men succeeded in dominating Westminster parliaments by enthusing about the virtues of motherhood and effectively defining women right out of politics. The expression "damning with faint praise" certainly comes to mind.
Motherhood is the exclusive preserve of women. But somehow its meaning has been politicised and hijacked by our male counterparts in a way that is very counterproductive to the wellbeing of us all. Members may not be aware that between 1921 and 1922 New South Wales had a Minister for Motherhood. Yes, the Minister for Motherhood was a man. His name was John Joseph McGirr, and he was Minister for Labour and Public Health and Motherhood. Some Government members secretly think those were the good old days, but I will not divert from the point.
The Hon. Duncan Gay:
His grandson was a member of the National Party.
The Hon. CATHERINE CUSACK:
I acknowledge that interjection. His brother went on to be Premier of New South Wales. Certainly there was nothing at all effeminate about the name John Joseph McGirr; he was the Labour member who served, for a time, as Minister for Labour, Motherhood, and Public Health. This bill is very much about motherhood. I find it ironic and disturbing that in the year 2008 so many men still seek to control the definition and meaning of what it is to be a mother. None of them has actually given birth and many of the people being quoted as authorities in this debate have not even had sex.
Why is it that people who remove themselves as far as possible from the experience are regarded as qualified to sit in thundering judgement on women who are giving birth and are parenting these precious gifts? I find it arrogant and wicked for any person to interfere or seek to cast a slur upon a mother's love for her child. Indeed, it takes my breath away to hear weasel words from people who often claim to stand for family values.
My party, the Liberal Party, believes in the idea that, as citizens with rights, we also have reciprocal responsibilities. Robert Menzies spelt this out clearly in his "forgotten people" address, where he eulogised families and the values of citizenship. The Howard Government gave effect to this belief in many programs that required the recipients of income support to give back to our community. These are values that build social cohesion and make us strong as a nation. A thoughtful person, who sees the benefit in ensuring that rights are connected to responsibilities, might ask: Why then is not the reverse also true? If a person bears all the responsibilities of being a parent, who in their right mind would dare deny them their rights as a parent?
Certainly I would not deny any parent his or her entitlements. This bill does not give anybody special privileges; it merely seeks to correct a longstanding injustice to a minority of children and their parents. I believe it must be supported for that reason alone. Members have received many letters and emails lobbying them on this issue. The case against is largely couched in words that seek to twist the meaning of what the debate is all about. The bottom line is that it is a battle being waged by people who do not want lesbian mothers to have the same rights as every other parent, but many of the letters have lacked the courage to say so plainly.
Instead, the case is being dressed up in hair-splitting arguments that seek to misdirect the debate. In that sense, the case against the bill lacks honour, compassion and fairness. Those values we hold dear as Australians, which include, above all, respect for the rights of children and their parents, should not be twisted in order to deprive those children and their parents of those very rights. To do so is despicable. In my inaugural speech to this Parliament I quoted John Stuart Mills on the "tyranny of the majority". He explains how the social oppression of the individual is to be feared more than any other form of tyranny. Mills states:
Reflecting persons perceived that when society is itself the tyrant—society collectively over the separate individuals who compose it—its means of tyrannizing are not restricted to the acts which it may do by the hands of its political functionaries. Society can and does execute its own mandates; and if it issues wrong mandates instead of right, or any mandates at all in things with which it ought not to meddle, it practises a social tyranny more formidable than many kinds of political oppression, since, though not usually upheld by such extreme penalties, it leaves fewer means of escape, penetrating much more deeply into the details of life, and enslaving the soul itself.
I am very pleased to support the bill. The only issue that makes me angry is that it is 2008 and this measure is still seen as somehow difficult when in fact it is merely overdue. The message should not have taken so long to sink into our political institutions. Most of us realise that the current position is manifestly unjust, but has been tolerated because frankly we lacked the courage to act earlier. The line in the sand that we draw today should have been attended to in the last century. It shames me that it has taken so long for honesty to rise up over such obvious prejudice and discrimination that tramples the rights of babies and young children, and harms the wellbeing of young Australians, who have every right to expect far better from us. It tramples the rights of women who love their partners and love their children. I must say even the bill's title reference to "Miscellaneous Acts Amendment" seems lacking in courage, but it would be pointless to detain the House by quibbling that small point. In conclusion, of course I support this bill. I believe that it rights a terrible wrong.
The Hon. MATTHEW MASON-COX
[9.05 p.m.]: I speak on the Miscellaneous Acts Amendment (Same Sex Relationships) Bill 2008. I note the many contributions so far on the bill. It has been very enlightening to hear those views. The stated object of the bill is to amend certain Acts, regulations and instruments to make further provision in relation to their application to de facto relationships within the meaning of the Property (Relationships) Act 1984. In particular, the bill amends the Anti-Discrimination Act 1977, the Status of Children Act 1996 and the Births, Deaths and Marriages Registration Act 1995, as well as various other Acts and instruments. The bill proposes to amend a total of 57 other Acts. Many of these amendments address discrimination experienced by same-sex couple families. I, like many of my colleagues, have received correspondence to this effect, pointing out that this bill will allow children with same-sex parents to have two legally recognised parents empowered to give consent for their medical treatment, to take them to hospital, sign school permission notes and interact with their childcare centres, schools and so on—all practical measures that should have been introduced a long time ago.
Indeed, I cannot in all conscience fault changes that achieve many of these practical results. Some of these amendments are long overdue. There have been similar changes in most States and at the Commonwealth level. Commonwealth amendments last year eliminated discrimination in areas such as superannuation and taxation. With respect to the Commonwealth amendments, I note the comment of the Attorney-General, Robert McClelland, who on 1 May stated:
Whilst we support a system of registration of same-sex relationships, we don't support an arrangement that mimics marriage. We're focusing on substance over form. We are removing discrimination from Commonwealth laws that have a real and practical impact on people in same-sex relationships.
I support amendments to laws that discriminate against people in same-sex relationships in this manner. However, in my view some of the issues raised by the bill involve some of the same aspects as same-sex marriage and adoption. The bill goes further than the earlier amendments in that it moves away from issues purely of property, tax, superannuation and money into the sensitive area of what is in the best interests of children, particularly those generated by in-vitro fertilisation and other artificial fertilisation methods. In my view there is a distinct difference between justice in relation to property matters of law and the right for same-sex couples to marry or to adopt children.
In particular, I have serious concerns about proposed amendments to the Births, Deaths and Marriages Registration Act that allow the biological father to be removed from a birth certificate in favour of a same-sex parent or, in this case, a second mother. The second mother can be included on the child's birth certificate where there is a pre-existing de facto relationship and where necessary the consent of the biological father is provided. This may sound reasonable to many in legal terms and it is very persuasive when considered from the perspective of the same-sex couple. Why should they not have the right to be named on the birth certificate of their child? I submit there are a number of reasons and a number of matters we need to consider in this context. Firstly, a birth certificate is not evidence of ownership in the same way that car registration papers are evidence of ownership.
A birth certificate is a record of the child's birth parents and last time I looked it required both a father and a mother to give birth to a child. Secondly, a birth certificate is a unique record of the baby's genetic parents and every child should have the right to access this information where possible. The inclusion of a second mother in place of a father deprives that child of that right. Thirdly, same-sex parents can have their rights to parenting a child recognised in other ways, including parenting plans under the Commonwealth Family Law Act 1975. Fourthly—and this goes to the heart of the matter—this amendment in my view is in reality a subtle attack on the role of fathers and the traditional family unit. It is the so-called thin edge of the wedge.
If you accept the discrimination-based, rights-focussed rationale for this amendment, then you cannot argue about extending this amendment to homosexual men in de facto relationships. We would have no choice but to legalise the adoption of children by homosexual men, a situation resisted by large sections of our community. In this way the silent, subtle intention of this amendment is plain to see. In my view it is simply another clever, small step along the long march of the gay and lesbian lobby towards their holy grail, that is the right for same sex couples, whether lesbian or gay, to adopt children and the right to have same sex relationships recognised as "marriage" under the law.
Whatever happened to the presumptive right of a child to a father and a mother? These amendments would eliminate this and the array of families with multiple parents with varying ownership rights over children would multiply. We could very well end up with four or more parents for a child with more and more complex arrangements and a plethora of rights with ever-decreasing responsibilities. Indeed this has been the experience overseas in a number of jurisdictions leading to an ever-increasing irrelevance of fatherhood.
Scandinavia now has free artificial insemination at publicly funded hospitals for lesbian couples. Homosexuals can obtain children through surrogate mothers by payment of significant sums of money and adoption both intrastate and interstate as State laws change for adoption. Same-sex couples routinely petition to have one or both biological parents being left off birth certificates, as well as petitioning for non-biological parents to be put on birth certificates.
I note the experience in the Australian Capital Territory in particular, with which I am familiar, where last year laws were passed to allow the adoption of children by homosexual couples. That leads to the situation in this rights-focused world where a child may come up for adoption in the Australian Capital Territory and have to face a situation where there maybe a very worthy heterosexual couple and a very worthy homosexual couple who are willing and able to care for that child. The person who has to make that decision from the responsible agency in the Australian Capital Territory has to justify their decision to both of those families. I can see the next step being that should the heterosexual couple adopt the child, the homosexual couple in this rights-focused discriminatory practising world would be off to the Anti-Discrimination Commission to challenge the decision to ensure that they get the child they so dearly want. The only person to suffer in that context is the child and the proposed changes to the Births, Deaths and Marriages Registration Act is missing the focus of the child.
In Quebec when a woman in a same-sex civil union gives birth, her female partner is presumed to be the father and can be registered as the father on the child's birth certificate. In California a second mother is allowed to be placed on a birth certificate as the child's father', while in Virginia a birth certificate is issued with "parent 1" and "parent 2" after the couple refused to put one of their names in the blank spot for "father". The instances of varying circumstances go on and on. It makes me wonder if fatherhood is becoming redundant but I think not.
There is much evidence on the relative benefits of raising children in a stable heterosexual relationship. In a paper entitled Two Person—Mother-Father Mode (Do Mothers and Fathers Matter)
, Maggie Gallagher and Joshua Baker found: a father and mother was the cornerstone of good parenting; children do best when raised by their own mother and father; traditional marriage increases the likelihood that a child enjoys warm, close relationships; children raised outside of intact married homes are more likely to divorce or become unwed parents themselves; children in intact married homes are healthier, on average, than children in other family forms; babies born to married parents have sharply lower rates of infant mortality; children from intact married homes have lower rates of substance abuse; boys and young men from intact married homes are less likely to commit crimes; children raised outside of intact marriages are more likely to be victims of both sexual and physical abuse; and marriage is more than a private emotional relationship but it is also a social good.
Not every person can or should marry and not every child raised outside of marriage is damaged as a result, but communities where good marriages are common have better outcomes for children than do communities suffering high rates of divorce, unmarried and high conflict or violent relationships—which is self-evident. I note the comments of Hon. Charlie Lynn who went into great detail as to the evidence of the impact of different family compositions on children. He also mentioned that there is a great wealth of evidence but the impacts are unclear. That makes it even more important for us to move slowly in this difficult area and not in the rush contemplated by the bill.
In short, children do best when raised by their own married mother and father. In that context fathers do matter. It is worth noting that there seems to be a common thread in the decisions made across the world in respect of same-sex relationships: that adults have a right to a child. Desires for children are powerful and deeply felt and some grieve for a lifetime if they are unable to bear children. It is important that these issues be dealt with respect but it must be remembered that the needs and rights of adults are only part of the story. Children also have rights.
I sometimes wonder how children feel about how we define parenthood? Does it matter how they feel? Yes, it does. Children raised without their mother and father often have perspectives about their lives, which differ from the legal scholars and courts. Children love the parents who raise them but the question is how do children feel and how do they make sense of their identities when they are alone or their mother or father is absent? Many children from the first generation of donor-conceived children are now speaking out about the powerful impact on children's identities when adults purposefully conceive a child with the clear intention of separating the child from a biological parent.
They say they were denied the birth right of being raised by or at least knowing about their biological parents. This intentional denial profoundly shapes their quest to understand who they are. There are many issues to consider in what is a complex area. An omnibus bill such as this does not contemplate the consequences downstream of taking steps that at face value may appear reasonable in our rights preoccupied world. The answer depends upon one's perspective and how one balances the competition between rights.
I note the contribution of other members and respect the conclusions they have reached. I personally support many of the proposed amendments in the bill but I cannot accept the bill's proposed amendments to the Births, Deaths and Marriages Registration Act for the reasons I have stated. I understand that amendments are being foreshadowed by the Reverend the Hon. Fred Nile and the Hon. Charlie Lynn. I support the proposed amendments by the Hon. Charlie Lynn insofar as they reinforce the legitimate and important role of fathers in families. In my view this is a line that should be drawn in the interests of children, in the interests of fathers and the interest of families, whatever their composition. I look forward to the opportunity to support the bill and hope the amendments to restore the legitimate role of fathers are agreed to by the Government.
The Hon. DAVID CLARKE
[9.18 p.m.]: I will not support the Miscellaneous Acts Amendment (Same Sex Relationships) Bill 2008 if it remains in its current form. Whilst the bill contains some proposals that I do not oppose, these mainly relate to extending certain financial, administrative and work-related benefits to same-sex couples. Unfortunately the bill goes much further than just dealing with such matters.
The bill is staking out new and unacceptable parameters in some important social areas, parameters that the great majority in our community do not accept. In a general sense the bill is pushing the frontier forward for the eventual goal of legalising the adoption of children by homosexual couples and for the eventual goal of legalising same-sex marriage. Like the majority within the community, I do not support the legislation of the adoption of children by homosexual couples and I do not support the legalisation of same-sex marriage.
I note that both the Coalition and the Labor Party in the Federal Parliament voted against the proposition of same-sex marriage. This bill acts against the best interests of our children, who are the most vulnerable in our community. Our children need special protection, yet this bill lets them down very badly. I, like other members of Parliament, have been inundated with a great flow of complaints by citizens of New South Wales objecting to this bill, or major parts of it. Understandably, many people have expressed outrage that the Labor Government slyly, cunningly and mischievously held back this legislation until after the State and Federal elections last year. The Government sat on the report on which this bill is based for two years so that it would not impact negatively on Labor's electoral prospects. This is standard practice for the Government. Honourable members will recall that during the lead-up to the State election of 2003 the Labor Government kept secret from the people of New South Wales that it would support a lowering of the age of consent for males from 18 years to 16 years if it were returned to power. It cunningly and misleadingly gave no indication to New South Wales voters that such a policy would become law within weeks of its re-election. Now history repeats itself.
What does this bill mean in a practical way for children in this State? When we cut through the legal jargon, what does it mean? The Marriage and Family Office of the Catholic Archdiocese of Sydney in a letter to members of this House sets out clearly, unambiguously and in practical terms what the passage of this bill means. As Mr Chris Meney, director of the office, states, it means that a mother and a father will be an unnecessary duplication. It means that intergenerational biological connectivity of fathers with their children will no longer be important and a child will have no right to the complete knowledge of his or her biological heritage. It means that mothers can, for all practical purposes, "father" just as well as men and the needs of children will be secondary to the desires and wants of female adults in a relationship. It means that children will not have a presumed right to the complementary role modelling, care and affection of their biological father.
Given that the bill provides a female same-sex partner with the legal right to, in effect, adopt a child, it means that it will be discriminatory to refuse this right to homosexual men in a relationship under subsequent legislation. It means that persons and organisations that do not support the right of same-sex adults to acquire parenting rights over their non-biological children could be subject to potential legal sanction. Given the willingness to move from a position that accords special status to or preferential support for the ordinary family structure to the proposed acceptance of a shared parenting arrangement as sufficient, the recognition of polygamous and polyamorous relationships could come under serious consideration. I am indebted to Mr Chris Meney, Director of the Marriage and Family Centre of the Catholic Archdiocese of Sydney, for clearly setting out in practical terms what this bill will mean for children should it become law in this State.
I also place on record my thanks to the Sydney Diocese of the Anglican Church, which clearly and unambiguously opposes those provisions of the bill that so adversely affect children. Yet again the Anglican Church in this State has taken a forthright stand for the rights of the child and for the protection of the family as it is traditionally and universally understood. During the debate, supporters of the bill have referred to studies that purport to show that children raised in homosexual households are in no way disadvantaged compared to those raised in heterosexual households. I take issue with that assertion and I will refer to the findings of studies and authorities that come to the opposite conclusion. For example, a study by G. Andersson in 2004 entitled "Divorce—Risk Patterns in Same-Sex Marriages in Norway and Sweden" concluded that lesbian relationships were significantly more unstable than heterosexual marriages, with a break-up rate three times higher in the first eight years of the relationship.
Dr Sotirios Sarantakos, Associate Professor of Sociology at Charles Sturt University, in his paper entitled "Children Industry Content" published in 1996, found that children raised in families where the biological parents were married to each other achieved higher scores in language ability, mathematics and sport than children raised in cohabitating heterosexual couple families. The study found that children in both groups achieved higher scores than children raised by homosexual partners. A 1994 study entitled the "Health of Our Nation's Children" by M. Coiro, N. Zill and B. Bloom of the National Centre for Health Statistics found that three- and four-year-old children with two biological parents are three times less likely than those in any other type of family—including, by deduction, homosexual families—to have emotional or behavioural problems such as a deficit disorder. A study entitled "Father Absence and Incarceration" by C. Harper and S. McLanahan of the Center for Research on Child Wellbeing found in 2003 that male adolescents in all types of families without a biological father were more likely to be incarcerated than teens from two-parent homes, even when demographic information was taken into consideration. Youths who had never lived with their father had the highest odds of being arrested.
In a 2008 Swedish review of over 20 studies of father involvement by Anna Sarkadi, Robert Kristiansson, Frank Oberklaid and Sven Bremberg entitled "Father's Involvement in Children's Development Outcomes", clear evidence was deduced to support the positive influences of fathers on the social, behavioural and psychological development of children. A study entitled "Going Further with Fathers: Can Fathers Make a Unique Contribution to the Lives of Their Children", published in a bulletin of the Maxim Institute dated 1 November 2007, concluded that:
The best available research shows that children with involved and responsive fathers tend to have better psychological wellbeing, fewer behavioural problems, achieve better at school, have higher self-esteem and are more likely to connect well with other children than those who do not experience active father involvement.
In an important study entitled "Lesbian Mothers and Their Children: A Comparison with Solo Parent Heterosexual Mothers and their Children" contained in the Archives of Sexual Behaviour 1986, an analysis by R. Green of the homosexual community using modestly large samples of children reared by homosexual parents found:
developmentally important statistically significant differences between children reared by homosexual parents compared to heterosexual parents. For example, children raised by homosexuals were found to have greater parental encouragement for cross-gender behaviour and greater amounts of cross-dressing and cross-gender play role behaviour.
A study by Golombok and Tasker entitled "Do Parents Influence the Sexual Orientation of their Children", published in Developmental Psychology in 1996, found:
With respect to actual involvement in same gender sexual relationships, there was a significant difference between groups None of the children from heterosexual families had experienced a lesbian or gay relationship. By contrast, five of the 17 daughters reported to have had at least one same-sex relationship.
A study published in 2006 in the American Sociological Review found higher rates of homosexuality among children of homosexual households. The mountain of research continues to grow. In 2005, for example, the Spanish Association of Pediatrics concluded that a family nucleus with two fathers or two mothers was clearly more detrimental to children than a family with heterosexual parents. During debate on the bill, mention has been made of studies that purport to establish that children raised in homosexual households are no more at risk in their development than children from heterosexual households. Indeed, it has been suggested that they may be better off in some circumstances. However, those who advocate this assertion seem to have overlooked or ignored an important study entitled "No Basis: What the Studies Don't Tell Us about Same-Sex Parenting" published in 2003 by the Marriage Law Project, Ethics and Public Policy Centre, Washington DC. In this study Dr Robert Lerner and Dr Althea Nagai, experts in quantitative analysis, found fatal research flaws in every single study that concluded in favour of homosexual parenting. Indeed, they found data in those studies that indicated that a homosexual parent may be harmful. In fact, among that material were studies that were relied upon and quoted tonight in this House to support the bill.
Should there be any lingering doubt that serious deficiencies exist in most studies purporting to show the absence of adverse effects on the great majority of children raised by homosexual parents, members should look at the investigation and analysis by researchers at the University of Southern California that was published in the American Sociological Review in 2001. That research found significant flaws in the majority of such studies and that in fact most of the studies showed a higher degree of detrimental effects on children raised by homosexual rather than by heterosexual parents.
In specific terms, the bill omits reference to the term "the father and mother" from section 18 (a) of the Births, Deaths and Marriages Registration Act 1995 and inserts instead the term "both parents". The bill will amend the Births, Deaths and Marriages Regulation 2006 to remove under section 5 (1) (e) references to "mother of the child" and "father of the child" and replace them with the term "each parent of the child". It will also delete the term "the mother and the father" from regulation 5 (1) (k) of the Births, Deaths and Marriages Registration Regulation 2006 and insert instead the term "either of the parents".
I will briefly respond to those who argue that supporters of this bill in some way display a deeper humanity, a greater compassion and a more sympathetic understanding of the issues relating to children raised in same-sex households than those who express opposition to the bill. To those people I can only respond that they display an intellectual arrogance of mammoth proportions. They think they have a monopoly on compassion but they do not; they may believe that they display a deeper humanity, but they do not.
I conclude by again confirming my deeply held view that the changes to the existing law contained in this bill severely undermine the position of the father in a number of circumstances and will place many children in a position of disadvantage. In the circumstances, and as I have indicated earlier, I oppose this bill in its current form and will support amendments to be moved by the Hon. Charlie Lynn and Reverend the Hon. Fred Nile.
The Hon. MELINDA PAVEY
[9.32 p.m.]: A loving family unit is the best environment in which to raise a child. I believe everyone in this Chamber would agree with that statement. Too many children in this State do not have the opportunity to be raised in a loving family environment. We should support and encourage a loving family environment and ensure that all rights are available to the children living in that environment. In my opinion that is what this bill supports. The Miscellaneous Provisions (Same Sex Relationships) Bill 2008 will not remove reference to the father from a birth certificate, rather it will affect amendments to the Act to allow a co-parent of a child born by way of artificial insemination to a mother to have her name inserted upon the birth certificate.
Of most importance, the bill creates a range of rights for a child born by way of artificial insemination to a mother as against those of the co-parent. Children born into a family that contain two loving mothers should have the same rights as those born into a family that consists of a mother and a father. Much has been said today about the issue of birth certificates. It has been claimed that if we replace the term "mother and father" with "parents" somehow we will forever alter the foundation of our society. I do not agree. There would be countless birth certificates in New South Wales that record the name of the mother of the child only. We know of about 1,000 same-sex relationships in relation to which the name of the biological mother only is recorded because it is against the law to record the name of the co-parent.
But what of the many single mothers who have decided for personal reasons, or because of circumstances not of their own making, to have and raise a child of their own? It is not compulsory to record the name of the father on the birth certificate if the birth is the result of artificial insemination or if the father does not want to be involved. Reference has been made to studies undertaken in the United States of America that indicate that the adjustment and wellbeing of children of lesbian and gay parents do not differ markedly from that of children of heterosexual parents.
A 2006 report prepared by the Department of Justice in Canada referring to children's development of social competence across family types, concluded:
The strongest conclusion that can be drawn from the empirical literature is that the vast majority of studies show that children living with two mothers and children living with a mother and father have the same levels of social competence.
In fact, a few studies suggest that children with two lesbian mothers may have marginally better social competence. I have not heard in this debate from those opposed to the changes any reference to any empirical evidence suggesting that same-sex relationships had a detrimental impact on children.
As I said during my inaugural speech in this Chamber, our life experiences make us who we are—the impact of family, friendship, associations, schooling and career. In coming to a decision on this bill I asked myself the following question: How would I feel if my children had to face the level of discrimination that children of lesbian mothers face in their day to day life? That is, discrimination that means non-biological mothers cannot enrol their children at school—children they love and care for; and they cannot even take them to an emergency department in a hospital for treatment. Furthermore, if a co-parent were to die, her child would have difficulty accessing her estate. Those matters helped me in my decision to support the bill. The rights of children are paramount.
The Hon. HELEN WESTWOOD
[9.35 p.m.]: I speak in support of the Miscellaneous Acts Amendment (Same Sex Relationships) Bill 2008, which has been widely anticipated and I believe is well overdue. However, I know we have been awaiting the release of the June 2006 report of the New South Wales Law Reform Commission relationships, and I welcome that extensive report. The bill enacts a number of key recommendations from that report and will amend 57 pieces of legislation to provide for equal rights for people in same-sex relationships including their children and parenting presumptions. Article 26 of the International Covenant on Civil and Political Rights states:
All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground
Here in New South Wales and indeed Australia same-sex couples and their children have not had these fundamental rights protected at law, and it is important to note that these reforms will go some way to addressing that. In the May 2007 report entitled "National Inquiry into Discrimination against People in Same-Sex Relationships: Financial and Work-Related Entitlements and Benefits" the Human Rights and Equal Opportunity Commission stated that same-sex couples often pay more tax than opposite-sex couples because of discrimination in tax law, yet they cannot expect the same entitlements in employment, workers compensation, veterans entitlements, health care subsidies, family law, superannuation, aged care and immigration law. This aberration leads to placing families at a significant financial disadvantage and results in a lower standard of living. The situation is hardly equitable, and I am proud to be a part of this New South Wales Government, which is introducing this bill.
The bill will amend the marital ground of discrimination in the Anti-Discrimination Act, which includes discrimination based on heterosexual married or de facto relationships only, to include discrimination arising out of a person's domestic status. The amendment will ensure that people who are discriminated against on the basis of their domestic status, including their status as living in a same-sex relationship, in the areas of work, education, provision of goods and services, accommodation and registered clubs have rights under the Anti-Discrimination Act. The reforms also address the intent of recommendations made by the Legislative Council's Standing Committee on Social Issues in its 1999 report entitled "Domestic Relationships: Issues for Reform."
I note that prominent advocates of children's rights have also supported these changes. Gillian Calvert, the New South Wales Commissioner for Children and Young People, expressed her support for the changes at a press conference organised by my colleague the Hon. John Hatzistergos when announcing the reforms. In a letter to the Gay and Lesbian Rights Lobby, James McDougall, the Executive Director at the National Children's and Youth Law Centre, also expressed the centre's support for the reforms, which will promote the best interests of children. The amendment to the Anti-Discrimination Act will ensure that people cannot be discriminated against on the basis of their de facto relationship, which is defined by reference to the Property (Relationships) Act.
The United Nations Convention on the Rights of the Child provides a universally accepted rights-based framework that has been adopted and ratified by Australia. This same framework is used by the National Children's and Youth Law Centre for reviewing legislation and policies that impact on children. The centre supports the proposed amendments to the Status of Children Act and associated legislation recognising the rights of children born through donor insemination to female same-sex couples. Its support is drawn from an examination of the reforms from a child rights basis and on the expressed concerns of the children who come into contact with the centre. Children often challenge the centre to consider why the law fails to reflect their lived experience, including their experience of family. Clearly this is why it is supporting this legislation.
The United Nations Convention on the Rights of the Child requires children and their families to be protected from discrimination. It calls for respect for parents and the family "as provided for by local custom", and invokes the best interest of the child as the primary consideration in dealing with children. The differing treatment by the law of family structures in Australia is discriminatory. The declaration from the World Summit for Children in September 1990 reinforced that "children should grow up in an environment, and atmosphere of happiness, love and understanding", and that "all institutions of society should respect and support the efforts of parents and other caregivers to nurture and care for children in a family environment".
Children rightly demand that we recognise their experience of family. This requires us to ensure that the law takes account of the diversity of that experience. I believe this bill upholds that right. The proposed reforms promote the best interests of the child by providing for children in the families where parenting is undertaken by same-sex couples. The legal recognition means that both parents can act with authority on day-to-day decisions about their child. The best interests of the child will also be recognised when all families can access financial entitlements, when care is provided for in the event that one parent dies, or in circumstances where the relationship between parents ends.
I will highlight some 2001 census data, where it was reported that there were at least 20,000 same-sex couple families in Australia, suggesting an increase in those willing to identify as partners in a same-sex relationship. Of these, 11,000 were gay male couples and 9,000 were lesbian couples. It must be remembered that this data is reliant on self-reporting and it is believed that these figures are in fact far higher. Not surprisingly, New South Wales had the largest reported number of same-sex couple families with 8,913. The vast majority of them live in Sydney and, again, that is not surprising. In addition, 20 per cent of lesbian households and 5 per cent of male same-sex relationships were reported to contain children. This data demonstrates that families and domestic relationships now take many and diverse forms.
Legal safeguards are necessary to protect people's rights and to resolve disputes when a relationship breaks down, irrespective of what form that relationship has taken, and whether the parties to the relationship were married. Wherever possible, the law should not discriminate between types of relationships, but should apply a consistent approach to settling financial matters if the relationship ends. It is important to outline some discriminatory real-life situations that some families in our community face without the benefit of these reforms. A lesbian mother writes:
My name is Christy. My partner Janna and I are in our thirties, and live in the inner suburbs of Sydney.
Although we were born on opposite sides of the world, we met in Australia eight years ago and have chosen to live in Sydney because of its spirit and diversity. The most incredible event in our time together has been the planning, conception and birth of our daughter. Despite the amazing mess she can cause now that she is walking, she is the light of our lives. We feel blessed for each day we spend with her.
While we have always supported law reform for the purposes of reducing the social and legal discrimination facing gay and lesbian people in Australia, we feel particularly strongly about reform in the area of same-sex parenting. Children raised in same-sex families miss out on many legal certainties and rights that other children in New South Wales take for granted. For example, our daughter was conceived through anonymous donor insemination in a fertility clinic, and yet Janna (as the nonbiological mother) is not recognised as a legal parent and she was not able to be named on our daughter's birth certificate. This could have led to a situation where, if Janna died without a will, our daughter would not automatically be entitled to her estate. Janna may also not have been able to consent to emergency medical treatment or to sign general parental authority forms, such as school permission notes and child care enrolments. If our relationship was to break down, Janna would not have her rights as a parent recognised under the law. This is a dangerous situation, particularly as you can never predict how extended families and other parties may act following the death of the biological parent.
Our primary concern is for the wellbeing of our child. How can the current system be said to protect her interests when it does not acknowledge our family structure? How can it be good for her that we must pay considerably more than heterosexual families to ensure that her legal rights are protected? How will she feel as she is growing up when discriminatory laws tell not only her but also her teachers, school friends, the families of her school friends, and the rest of our community that it is perfectly alright to discriminate against us, or to not take us seriously as a family unit?
Another lesbian mother writes:
Today is Mother's Day. This morning I asked our oldest child what a mummy was. She told me it was someone who helped children with all the things they couldn't do for themselves; gave them hugs; and looked after them. She talked a lot about love and care and safety. She didn't say a thing about biology or genetics. At three and a half, she understands the meaning of real family.
She doesn't understand—thankfully—that current State laws do not recognise us as a real family. She has no idea that while it's plainly obvious to her that she has two parents, the law as it stands considers her to have just one mother. Our daughter and our one-year-old son are too young to realise that having two mummies means they are viewed differently by the law.
We really hope that by the time they are old enough to understand, there won't be any differences. We've been fortunate in that we've encountered very little negativity about our decision to create a family. But our children should not have to rely on luck to see that they're treated just like every other child. They deserve to have their family properly recognised, just as we as parents deserve the same legal protections as every other parent.
I am proud to say that these families will now have the same legal status, and that is very important because of all the practicalities that follow. The New South Wales Law Reform Commission Relationships report recommends that same-sex female partners be granted parentage rights for children conceived through in vitro fertilisation or artificial insemination. The Government will change the parentage presumptions for children born using fertilisation procedures such as IVF to remove discrimination against lesbians.
According to the Law Reform Commission report, in these situations neither the lesbian mother nor the co-parent currently has any legal parental status in respect of the child. I have already demonstrated how this adversely impacts on their lives. Because neither has legal status, there are very few legal rights and obligations arising from the functional parent-child relationship. The law simply fails to recognise the existence of the relationship. Extensive practical consequences for both the parents and the child flow from this non-recognition. These reforms are especially important because they will ensure equity in the laws relating to workers compensation and victim compensation payments where one or both parents are killed or injured; parental leave entitlements for a same-sex partner to act as primary caregiver of their child in the first year; recognition of both parents by school and medical authorities; and improving access to guardianship orders for elderly parents. In addition, the laws of intestacy will apply equally to the children of same-sex parents, where the parents die without making a will. Enacting these new parenting presumptions will ensure that same-sex parents have the same parental responsibility for their children in respect of their health, education and general wellbeing as other parents have for their children.
I acknowledge the contributions of honourable members to this debate and I respect the different views expressed by them. I particularly commend the Hon. Robyn Parker, the Hon. Trevor Khan, the Hon. Catherine Cusack and the Hon. Melinda Pavey for their contributions and for emphasising the human rights of those of us in same-sex relationships and our children. I concur with their argument that lesbians and gay men and their children are entitled to equality before the law.
I absolutely reject the arguments put by some members in this debate that children in same-sex parented families are at risk of poor parenting, or that a child's psychological and social development is likely to be adversely affected by the absence of father parenting or by parenting by lesbian mothers. Lesbian mothers and gay fathers want the same for their children as heterosexual mothers and fathers want for their children. As parents we want our children to develop into physically and emotionally healthy adults and to have all the opportunities they need to reach their full potential in adulthood. Belonging to a family in which children know they are loved, respected, supported and encouraged, and in which they know they will have their physical and emotional needs met, is, from my experience, far more important than the gender of their parents or family members.
A considerable amount of sociological and psychological research has been conducted to examine the effect a parent's sexual orientation has on the welfare and development of children. Much of this has been referred to by other honourable members during the debate. It is worth restating that the findings of most research comparing lesbian and gay parents to heterosexual parents refute common stereotypes and concerns about lesbian and gay parenting. It has been clearly demonstrated that the sexuality of a child's parents has no connection to the child's moral and cognitive development, wellbeing or happiness. When comparing children of heterosexual parents to children of lesbians and gay men, no significant differences have been found in the social adjustment, social acceptance, or sociability of the children. Nor has any difference been illustrated in the children's peer relations such as quality of friendships or popularity. In addition, no discernible differences have been found in the children of heterosexual or homosexual parents regarding a child's gender role, identification or sexual orientation.
The most important factor in a child's upbringing has been identified as the care and love put into a child's life. Lesbians and gay men display matched capability at loving and caring for their children as their heterosexual counterparts. This legislation simply acknowledges the reality of people's lives, regardless of an individual's beliefs about what constitutes a family. It is important that we acknowledge the diversity of families. It is a fact that families have different structures: there are single-parent families and there are families where the parents are of the same sex.
The bill does not affect me because my children were born into a heterosexual family—I was married at the time I had my children—but after my husband left and my children were fairly young I had a same-sex partner, and she and I raised our children. Despite what has been said tonight, my parenting and mothering in both the heterosexual and homosexual relationship were exactly the same. I wanted the same things: I wanted my children to grow up as happy, healthy adults. I wanted them to know that they were loved and valued and that my partner and I would support them in all they did.
Again, much of what I have heard tonight would suggest that somehow or other the life experiences of lesbian parents or parents in same-sex relationships are different, but our lives as parents are exactly the same as everyone else's. We got up every morning and made sandwiches; we took the kids to school; we stood on the cold netball courts and watched our kids play; we took them to swimming lessons; we dragged them out of bed when they were teenagers; we cleaned up their vomit when they were sick; we wiped their tears when they had broken hearts; and we took them to doctors and hospitals. That is what parents do, regardless of whether they are in same-sex relationships or heterosexual relationships. Not surprisingly, my two daughters have grown into beautiful young women who have had children of their own. Both have made the choice to have their children within heterosexual marriages. Again, that is consistent with most of the research that has been referred to tonight.
The bill is important because it will amend 57 pieces of legislation and enact a number of recommendations from the New South Wales Law Reform Commission's relationships report to provide equal rights for people in same-sex relationships—rights that many in this State take for granted. It is also important because it is another step on the road to recognising that gay men and lesbians are human beings of equal worth to all other citizens. So long as any laws exist that treat us differently and treat our relationships or our children differently, we are not equal citizens. I commend this important bill to the House.
Ms LEE RHIANNON
[9.55 p.m.]: The Greens support the bill. We welcome the Government edging a little closer to full equality for lesbian, gay, bisexual, transgender and intersex people. While celebrating this bill, it must be acknowledged that the rights this bill will establish in turn underline the slow rate at which we are moving towards legislating for rights for all adults. Those comments do not reduce the importance of the bill. There are many reasons to celebrate the passing of the bill. The major accomplishment of the Miscellaneous Acts Amendment (Same Sex Relationships) Bill is recognition as a legal co-parent of the consenting female partner of the birthmother who is pregnant as a result of a fertilisation procedure, just as a male parent would be. It is well past time that the law acknowledged that family structures are diverse and that all children deserve equal rights regardless of the sexuality of their parents.
I very much congratulate the member Helen Westwood on her contribution. I thought she summed up beautifully what family life is like. A common, strong theme of tonight's debate is the diversity of families. When we can recognise that, society will become much healthier. The Greens New South Wales policy supports equal parenting rights through equality of access to adoption and fostering, and artificial insemination and in vitro fertilisation procedures, irrespective of sex and sexuality. We are aware, as I am sure many other members are, of many stories of heartache and frustration from same-sex parents who face ignorance, discrimination and unfair treatment while engaged in the already highly challenging job of raising children. I certainly could not top the beautiful way in which Helen Westwood described what it is like to be a parent.
Frustration is obviously heightened by the fact that many inequalities are enshrined in law. These range from one parent being unable to sign sick notes, to grant permission to compete in school sports or to attend camp or to consent to medical treatment, to children being left without legal rights to estates should their non-biological parent die without a will, or potentially being denied access to one parent in the event of a relationship breakdown. The sooner we get rid of these obstacles the better. The passing of the bill will achieve that, and I congratulate the Attorney General and the Government for bringing it forward. Around 20 per cent of lesbians and up to 10 per cent of gay men are parents.
The Hon. John Hatzistergos:
That is 30 per cent.
Ms LEE RHIANNON:
The Attorney General has just corrected my figures; it is 30 per cent. I thank him for that. The 2006 census recorded 1,533 children of same-sex couples living in New South Wales. It is our hope that these changes will provide much-needed and long-overdue legal, emotional and financial stability to these families. For parents and children the importance of this law cannot be underestimated. Other members spoke about the importance of loving families. Security in the law will contribute to the stability and loving nature of families, which will continue to develop and become the norm. Children deserve equal rights regardless of the sexuality of their parents. Discriminating against children because of the structure of their families can never be considered in their interests, and sexual orientation has no bearing whatsoever on whether a person will make a good parent, as countless same-sex couples are showing right now.
Equality for same-sex families is long overdue in New South Wales. These changes are consistent with reforms in other States and Territories. Western Australia, the Northern Territory, the Australian Capital Territory and Tasmania already recognise same-sex families and Victoria has announced its intention to introduce similar reforms this year. This legislation is in keeping with community views. If anything, the community is actually leading New South Wales politicians on this issue.
A recent survey of 15,000 women by the Australian Women's Weekly
found 71 per cent want same-sex couples to have the same rights as heterosexual couples. Interestingly, this is the same level of support found in the GetUp Galaxy poll last year. I note also the substantial amount of research, such as last year's Victorian Law Reform Commission publication entitled "Assisted reproductive technology & adoption: final report", which shows that having single, lesbian or gay parents does not pose a risk to the wellbeing of children. It is important that all people, regardless of their sexuality, are given equal rights to adopt children and undergo in-vitro fertilisation treatment. It is a basic right. Achieving such rights would be another step to full equality.
I am pleased that in this bill the definition of "fertilisation" is broad enough to encompass not just clinical procedures but other informal forms of fertilisation. Research shows that about 80 per cent of children born in lesbian same-sex relationships are conceived using home insemination. There has been some consternation about proposed changes to the Births, Deaths and Marriages Act. I believe it is important to clarify several points in this regard. Firstly, every child conceived in New South Wales as a result of an assisted reproductive technology procedure can access information about his or her donors when he or she turns 18 via the assisted reproductive technology register under the auspices of the Assisted Reproductive Technology Act 2007. This addresses the current discrepancy where the mother's partner is treated differently based on gender. If the mother's partner is male, he is already deemed to be the legal father under the Status of Children Act. However, if her partner were female, she would not be recognised under the current law. Moreover, the explanatory note to these amendments states:
Where the child's birth registration contains information that purports to identify a person as the father of the child, that person's consent will also be required to the removal of the identifying particulars from the registration (unless a court or the regulations authorise their removal because the person is not the father by operation of law or otherwise).
This removes the concern that some wholesale disenfranchisement of fathers will occur. We share concerns about the ability of children to trace their genetic parents using their birth certificates, but obviously that applies to children in a range of situations. Other useful models may be worth investigation, such as the Australian Capital Territory regulations introduced some years ago, which allow a space for "mother" and a space for "father/other parent". This would also allow the child to identify from the record which mother gave birth to him or her.
Anecdotally, we understand that registrars in Victoria have allowed in some circumstances for a range of other information to be recorded in the "Notes" section of the birth certificate. This, too, could be a solution. The Victorian Law Reform Commission examined the possibility of including three or even four parents on the birth certificate but dismissed it as overly complex, with the potential of increasing uncertainty and complication in practical steps such as signing parental consent forms. However, it is crucial to remember that at present there is no way to guarantee that every child knows the true identity of their biological father, no matter what the makeup of the family. This is merely the nature of human reproduction.
It is also likely that once lesbian parents are able to feel more secure in their family's legal position, they will be more likely to enter into known donor arrangements, giving their children the ability to know and ask more questions about the donor from an early age. One reason some couples choose anonymous donors is that the current tenuous legal status of their families means that a known donor could make a legal custody claim for the child, leaving the co-parent at a massive disadvantage.
Finally, it could be argued that listing two mothers on a birth certificate is less deceptive than listing a mother and a non-genetic father, as even very young children are aware that two women cannot make a baby on their own. In fact, an occasional report from the Victorian Law Reform Commission cites a review of the literature on rates of disclosure about sperm donation by Dr Ruth McNair of the University of Melbourne that approximately 95 per cent of lesbian families tell their children about their donor as opposed to only 1 per cent to 20 per cent of heterosexual parents.
Changes outlined in the bill do not undermine the role of fathers and we will be interested to see how the accompanying regulations will be enacted. Although the bill is welcome, we must remember that none of these progressive changes has any effect on gay male parents. Their rights must also be recognised. The bill does not apply to overseas families moving to Australia, sole parents who form new relationships or long-term foster carers attempting to adopt. This would require changes to surrogacy and adoption laws, but we urge the Government to stop delaying and tackle it.
We need to consider the rights of gay fathers. I want to share with members the thoughts of a member of an organisation called GayDadsNSW. The views expressed are a reminder that law reform in this area still has some way to go. There are clearly many challenges and those challenges we must meet. The views of Mr Anthony Brien from Homebush Bay deserve to be injected into this debate. He states:
I am a member of a group known as GayDadsNSW which is a collection of gay men who are or wish to be more than just fathers - we are dads. We want to be involved in the day to day responsibilities of raising our children and this law does little to address the rights of our children. Indeed in some aspects it DIMINISHES THE RIGHTS OF OUR CHILDREN by removing the recognition of our role - not just in being the biological parent but also in our parenting role in the lives of our children.
male citizens of the state of New South Wales are BECOMING FATHERS becoming parents of children they wish to raise with their male partner. How are their rights as a same sex couple being recognised by these proposed amendments to the law?
Other gay men are entering into co-parenting arrangements with lesbian couples where it is agreed by all parties that the father will have an active role as a DAD. These arrangements are often recognised under Federal Law by the registering of Parenting Orders in the Family Court of Australia.
Mr Brien also states:
THE FATHER HAS A RIGHT TO BE RECOGNISED ON THE BIRTH CERTIFICATE – and so facilities should be made for 4 parents – because if you agree that a partner of a birth mother (and not necessarily the biological mother) has a right to be recognised on the birth certificate and you are serious about equality for same sex couples then you should agree that the partner of the biological father has a right to be recognised.
I remind members of the comments of the Victorian Law Reform Commission that examined whether to have four parents on a birth certificate and found that not to be a wise path to follow given its complexity. The views of Mr Brien remind us that we have a long way to go in addressing these issues. The Greens will seek to amend the bill to remove discriminatory loopholes enshrined in the Anti-Discrimination Act and to extend adoption rights to same-sex couples. In noting amendments to the Anti-Discrimination Act set out in the bill, we are disappointed that the bill fails to remove exemptions available to a number of groups, such as religious bodies, small employers and private education authorities. I understand there is some dispute about whether the amendments are within the leave of the bill, and I shall address that later. The Greens have received advice that we are within the leave of the bill and we state that it is unfortunate the Government has not moved in this area.
The Greens propose amendments that, if successful, would remove exemptions for small employers and private schools. The Anti-Discrimination Bill should be about inclusion, equality and fairness. At the moment it goes a long way towards achieving that, but, as we all know, there are loopholes in that bill which, unfortunately, are periodically used or abused. Until these changes are made, the bill sends a mixed message about discrimination. The Greens had a private member's bill in this area, and we certainly hope that the Government will now use the opportunity of this bill to move on that aspect.
The Greens will put forward amendments to the definition of "couple" in the Adoption Act 2000, to extend the rights achieved in this bill. This amendment to schedule 3 would align the Adoption Act with the Property (Relationships) Act. We were disappointed that the Government failed to do this, choosing instead to grant just some parenting rights to some sections of the community. The Greens believe that our amendment addresses at least part of this anomaly.
Tonight I have criticised the slow pace of reform for the lesbian, gay, bisexual, transgender and intersex [LGBTI] community. However, I again emphasise that there is much to celebrate in this legislation. I again congratulate the Minister, the Government, the Gay and Lesbian Rights Lobby and other groups that have been involved in campaigning for this legislation. It certainly will be historic when it is passed. Each and every step towards full equality is certainly celebrated by the Greens. However, we feel the need to comment on the slow drip-feeding of rights for the gay and lesbian community; it is simply not satisfactory. The slow rate of reform appears to be geared to the early years of an election cycle.
I ask the Attorney General in his address in reply to comment on the state of reform for the LGBTI community. Is this legislation all we can expect in the current election cycle? It is important that the Attorney General indicate the Government's progress with this legislative program. I put to the Attorney General that the Government does not need to wait another four years to revisit this issue. One certainly gets the impression that that is how Labor conducts its reform program in this area.
What we know from this legislation, the polling, and the direct responses on the issue is that the community supports these changes. The community will certainly support more far-reaching changes in the important areas of adoption and surrogacy. The Government has community support and it has the numbers in this Parliament. It is time the Government legislated for full equality for the LGBTI community.
If the Government truly believes—they are fine words—that all children should have the same rights and entitlements regardless of the structure of their family or the sexuality of their parents, and that no person should be subjected to discrimination based on their sexuality, it should act decisively to bring about legislative equality in both rights and responsibilities as soon as possible.
The Hon. PENNY SHARPE
(Parliamentary Secretary) [10.13 p.m.]: I speak in favour of the Miscellaneous Acts Amendment (Same Sex Relationships) Bill 2008. The past 10 years have seen a quiet revolution in terms of gay, lesbian, bisexual and transgender law reform across Australia and in many other western nations. New South Wales has made significant progress by granting equal rights to same-sex couples and removing discrimination against gay men and lesbians in 48 Acts. Labor governments in Tasmania, Victoria, Western Australia and the Australian Capital Territory have systematically removed discrimination against same-sex couples. All members would also be aware of the Rudd Labor Government's commitment to remove discrimination in over 100 Acts in Federal law.
Despite claims from some quarters that removing discrimination against gay men and lesbians will lead society down a path of moral decay, I note that society has not collapsed as a result of ensuring that gay and lesbian citizens are treated equally under the law. I welcome the amendments in the Miscellaneous Acts (Same Sex Relationships) Bill 2008 to a further 57 pieces of legislation. The bulk of the amendments in this legislation remove discrimination against same-sex couples by adopting a gender-inclusive definition of de facto and are an extension of the changes that have been progressively implemented by the Labor Government in the last 13 years. Other reforms extend protections under the Anti-Discrimination Act to same-sex couples.
The final reform is the change that will provide legal recognition of both parents in a lesbian relationship. This is the area that I will focus on in this debate. The reforms are being adopted as the Government's response to recommendations by the New South Wales Law Reform Commission Report 113 Relationships. The Law Reform Commission report highlights some of the problems faced by children of lesbian parents and the gaps in the law in this area. It also highlights a number of other inequalities for same-sex couples. The report draws on the work of the New South Wales Gay and Lesbian Rights Lobby's report entitled "And then the brides changed nappies" and consultation with other community groups.
I wish to formally acknowledge the work of the Gay and Lesbian Rights Lobby over many years to draw attention to these issues. The rights lobby has always backed its advocacy with objective research and extensive community consultation with the people it represents. The lobby's consultations with same-sex families and its articulation of the issues faced by these families has made an important difference to this debate. I extend special thanks to Jenni Millbank, Emily Gray, Pete Johnson and Ghassan Kassisieh, who have provided me with extensive information about aspects of the bill.
It is widely acknowledged that there are growing numbers of families within Australia headed by same-sex couples, and there is anecdotal evidence to suggest that the majority of children born to lesbian couples in Australia were conceived using donor insemination. The last census identified 4,386 children who are currently living with two mums. It is estimated that in New South Wales there are more than 1,533 children in this situation. However, as the New South Wales Law Reform Commission Report 113 Relationships puts it:
[these] developments in family structures have not been accompanied by equivalent legal developments.
As a result, our current laws do not fully recognise the reality of many children's lives or meet the practical needs of many families.
Currently, only the birth mother is recognised as the legal parent of any children in these families. And current laws in New South Wales fail to legally recognise that children born to lesbian couples as a result of a fertilisation procedure have two parents, namely their birth mother and her partner. This legal ambiguity places children in these families at a considerable disadvantage relative to other children in New South Wales.
As the Attorney explained in his second reading speech, under the New South Wales Status of Children Act there was already a presumption of parentage for the male partner of a woman who has children using donor insemination. However, there is no such presumption for lesbian couples who use assisted reproductive technologies to conceive children. The Law Reform Commission report goes on to explain that:
While the presumptions [of parentage under the Status of Children Act] may facilitate parenting by couples in opposite sex relationships who have a child using donor sperm, they do not take into account the existence of couples in same-sex relationships, who exercise the same choice.
This means that where a child is conceived in the context of a lesbian relationship, the presumption that the sperm donor is not the child's legal father fails to be accompanied by a presumption that the mother's partner is the child's legal parent.
The result of this failure is that children who are conceived in the context of a lesbian relationship are denied a second legal parent, when such a parent is available.
In the eyes of the law, the co-mother is a complete stranger to the child, other than in those limited areas where the functional parent/child relationship is recognised.
For many children of these New South Wales families this means they may have only one legal parent. Without these amendments, a child's relationship with one of its parents remains illegitimate in the eyes of the law. Illegitimacy leaves these children vulnerable to a number of adverse outcomes and makes it more difficult for their parents to care for them. Non-birth parents are unable to access information regarding their children's health or to make schooling arrangements—and these children also have fewer inheritance rights.
While parents can apply for a parenting order, parenting orders are limited in their application and are expensive and complex to design. They are also limited in scope. When a child turns 18, gets married, or enters a de facto relationship, these parenting orders cease to exist. This has a significant impact on a child's inheritance rights.
Under this legislation, the presumption of parentage will be extended to children of lesbian couples. There have been many incorrect claims about this legislation. It is important to point out that these amendments will place children born to lesbian de facto couples as a result of a fertilisation procedure in exactly the same position as children born to heterosexual de facto couples through such procedures—that is, the child's relationship with their non-birth parent is legally recognised even if no biological connection exists between the non-birth parent and the child.
These amendments bring New South Wales into line with Western Australia, the Australian Capital Territory, Victoria and the Northern Territory. They also give children of lesbian parents equal rights in workers compensation and victim compensation payments, as well as inheritance rights. And for parents, both partners in a lesbian relationship will be entitled to all the rights and responsibilities of parenthood, including custody and liability to pay child support. The changes will also ensure recognition of both parents by schools and health authorities. This is a welcome move that will provide families across the State with the security of knowing that their relationships and their families are legally recognised.
The New South Wales Law Reform Commission report also recommended changes to laws on adoption and surrogacy. These are issues currently being dealt with by ministerial councils and I look forward to the results of these inquiries and further reforms in this area. After this legislation is passed there will still be children who are missing out on legal recognition of two parents. In particular, children who are living with their mum who conceived with a donor and now would like to have her partner formally adopt her child as a step-parent. I urge the Government to look at the provisions for step-parent adoption for those children where appropriate.
There are also children who are in out-of-home care who are currently living in loving homes of gay and lesbian foster carers. Many of these children will never be able to return home to their birth parent or parents and as is the case for other children in out-of-home care there are some children where it would be in their best interests if their foster families adopted them. These most vulnerable children and young people continue to be denied the option of adoption by both their foster carers even if it would be in their best interests. Again I look forward to further examination of these matters.
Like other members, I have received emails from opponents of the bill. While I acknowledge their right to have their own views, I cannot participate in this debate without challenging some of the spurious and incorrect arguments they put forward to justify them. The first argument incorrectly suggests that this bill will remove fathers from birth certificates. The fact is that no child will lose their father as a result of the changes and no father will lose the word "father" from his child's birth certificate. The change means that children with two mothers will have both their parents recognised under the law.
Children will have the practical benefit of two parents who can take them to hospital and sign school permission notes, and they will automatically be eligible for both their parent's inheritance. But even more importantly the change means that just like children in heterosexual families who have been conceived by donor insemination, children with two mums will have both parents on the birth certificate. Opponents of the bill have also tried to argue that recognising lesbian parents somehow diminishes the role or importance of fathers in our society. There was a forum hosted at Parliament today because of concerns that fatherhood and families are under threat from this bill and that it is a calculated attempt by the Government to discriminate against men, derogate fathers, fragment families and break the hearts of our children. This is misleading at best and, frankly, I find it offensive but it is also irrelevant to what these changes will actually facilitate.
No-one is trying to downplay the role of fathers in our society and in families. The bill is about giving kids who have two mums the stability of knowing that their relationships with both of their parents are legally recognised. I am not sure how anyone can come to the conclusion that legislation that will recognise both parents in lesbian-headed families would put other families under threat or break the hearts of children. In fact, I think if you read some of the stories that members have been sent by the Gay and Lesbian Rights Lobby you would realise just how important this legislation is for many families in New South Wales.
The third argument against this bill suggests that children in lesbian families will be seriously harmed if both their parents are recognised by the law. The proponents of this argument make a range of claims supposedly based on research. We often have debates in this place about the research and evidence base for decision-making. It was on this basis that I have had a look at the research presented. The first type of research produced to justify this claim is produced and/or quoted by organisations emphatically opposed to homosexuality on religious or moral grounds. The second form of research provided is very selectively quoted and is often presented in a manner deliberately aimed to cause alarm. It is often based on studies that do not look specifically at same-sex families but instead are focussed on the outcomes of relationship breakdown, single parenthood and poverty.
The research quoted by opponents of this bill completely ignores any research that is contrary to their view. All credible research into gay and lesbian families shows that lesbian and gay parents are "like" heterosexual parents. Their children do not demonstrate any important differences in development, happiness, peer relation or adjustment.
A research study commissioned by the Canadian Department of Justice before the introduction of laws that allowed same-sex couples to be considered for adoption investigated the research on same-sex families. This report concluded that the studies which find that children suffer no developmental harm by being raised by homosexual parents employs some of the most methodologically sound programs of inquiry. The most rigorous and credible studies continue to demonstrate that it is family processes and not family structures that determine a child's wellbeing. This has been demonstrated by studies of Charlotte Paterson in the United States and Fiona Tasker and Susan Golombok in the United Kingdom. Independent researchers not funded by any institutes or think tanks conducted these studies. Their research found that:
The number and sex of the adults in a household has no bearing on children's well being—one adult or two, female or male, heterosexual or homosexual whereas the happiness of the relationship between adults in the household, and the openness of warmth and communication between the adults and the children do have a major impact on children.
As Susan Golombok, professor of family research and director of the Centre for Family Research at the University of Cambridge, recently stated in response to the United Kingdom's embryo bill:
There's now been more than 30 years of research in Europe and the US, that has found very consistently that children raised in a lesbian households are no different from children in heterosexual families, both in terms of their psychological adjustment, and also in terms of their gender development, and in terms of their relationships with other children.
All the research and the claims and the counterclaims about same-sex families come down to one simple fact: same-sex families are no different from any other family. People who have little experience of same-sex families, and even less contact with gay men and lesbians, can find it hard to understand this simple truth. Lesbians and gay men choose to have children for the same reasons that heterosexual men and women do. They want to build and share a loving family and they want to provide a safe and loving home for themselves and for their children.
Same-sex parents liaise with schools and doctors, wash jumpers for the junior sports team and bake cakes for the Parents and Citizens cake stall. Lesbian parents argue with their kids over bed times and negotiate about how much the television is on. Same-sex parents worry about who their kids are hanging around and whether their kids are being bullied at school. As their kids get older they worry about their kid's education, job prospects and whether they are happy. Like all families, same-sex families do their best but also, like all families, none of them are perfect.
The one very significant difference between many gay and lesbian families and some other families is that lesbian and gay parents have all thought very hard and overcome many challenges to bring children into the world. It is not a decision that has ever been taken lightly and nor does it happen by accident. The children within these families are dearly wanted, planned and cared for. Children in same-sex families are very fortunate to have the love and support of two parents.
Some in this debate would like to see a world where the only families are families comprising a man and a woman who are married and have children. This does not reflect the diversity of families within our community and as legislators if we were to restrict legal rights and protections to only these families we would be legislating for the minority and we would fail to provide all families in our community with the protection that they need and deserve. It is an important step forward that this bill recognises the diversity of families in our community and gives them the legal rights and responsibilities that they need to support and nurture their children.
It is rare that a piece of legislation that comes into this place has a direct personal impact on individual legislators. Tonight I find myself in this somewhat unusual position. I can speak from personal experience about the impact that this bill will have. It will make a difference to my children and the thousands of other children who are lucky to have two mums. When the Attorney announced these changes I went home and said to my nine-year-old daughter that the Government was going to make a law that meant I would officially be her mum. She simply looked at me blankly and said, "But Mum, you are my mum." When stripped bare of all the arguments for and against the bill, perhaps Jemima's response best sums up the importance of this legislation.
For lesbian mothers it provides certainty that they can continue to raise children with the same love and care that they always have. But for the first time they will have the recognition and protection of the law and for our kids nothing much changes. They will continue to live in their families as they have always done but from now on they will have the same protections as their friends. I commend the bill to the House.
The Hon. DON HARWIN
[10.28 p.m.]: The Miscellaneous Acts Amendment (Same Sex Relationships) Bill 2008 is aptly named because there are three quite distinct parts and I want to talk about all three. But given the time and the fact that we have heard a large number of very good speeches on the bill today I will but briefly do so. Schedule 1 includes some changes to the Anti-Discrimination Act that will ensure that people who are discriminated against on the basis of their same-sex partnership in the areas of work, education, provision of goods and services and accommodation will now have protection under the Anti-Discrimination Act, which is a good thing.
In Victoria, Western Australia, Queensland, Tasmania and the Northern Territory those protections are already in anti-discrimination or equivalent legislation. Those protections will now be available to gays and lesbians in de facto relationships in New South Wales. I refer to a particularly good publication by the Gay and Lesbian Rights Lobby on this bill. At page three the paper deals with some of the consequences when there is no specific mention of homosexual de facto couples. The Gay and Lesbian Rights Lobby states:
currently existing "homosexuality" ground can be used (and has been used) to provide a remedy to someone who has been discriminated against because they are in a same-sex relationship. This is because being in a homosexual relationship is arguably part and parcel of being homosexual. In many cases, discrimination against someone who is in a same-sex relationship is discrimination against the person's homosexuality.
Further down it states:
the current definition of "marital status" creates a dilemma for gay and lesbian couples who may have to go through the largely artificial and technical legal process of first arguing that it is the characteristic of a homosexual person to be in a homosexual relationship, in order to use the protected homosexuality ground as a shield from discrimination on the basis of same-sex relationship status. In other words, legal technicalities could stand in the way of providing sensible relief to an otherwise deserving couple who are discriminated against.
Reducing the opportunities for lawyers to play legal gymnastics means that deserving plaintiffs will be treated fairly in discrimination cases at a minimal cost.
Those two extracts from the excellent paper by the Gay and Lesbian Rights Lobby outlines the practical benefits for same-sex couples from these most welcome changes to the Anti-Discrimination Act, which are outlined in schedule 1. Schedule 3 relates to the consistency of de facto definitions and continues in the spirit of two pieces of legislation in the fifty-second Parliament, the landmark Property (Relationships) Legislation Amendment Bill 1999—the bill on which I cast my first vote in this Chamber—and the Miscellaneous Acts Amendment (Relationships) Bill 2002. Schedule 3 of this bill makes changes to more than 50 pieces of legislation, both Acts and regulations, in order to include same-sex couples in the definition of "de facto" relationship. These changes vary in both purpose and consequence, but again are of direct relevance to both gay and lesbian couples—unlike the third section of the bill, which I will come to shortly.
The first and largest category either imposes obligations or requires disclosure on same-sex de facto partners by including them in the existing definition. The second category confers on a same-sex de facto partner a new right or entitlement. The affected Acts and regulations include the Sydney Cricket Ground and Sydney Football Stadium By-Law 2004, the Drug and Alcohol Treatment Act 2007, the Crimes (Administration of Sentences) Regulation 2001 and, perhaps of most significance, the Industrial Relations Act 1996. In the Industrial Relations Act the change grants same-sex de facto couples access to parental leave during the first year of their child's life. This is the only real change in schedule 3 that has attracted much attention. It is largely about nomenclature, not the substance of the change. This is pleasing because, after all, we should focus on the benefit to the child from the leave taken by the parent.
The third category of change in the schedule grants same-sex de facto partners exemptions on the grounds of their relationship. The changes impact on such Acts and regulations as the Apprenticeship and Traineeship Act, the Commercial Agents and Private Inquiry Agents Regulation and the Criminal Procedure Regulation 2005. Again, all these exemptions currently apply to heterosexual de facto couples and now they will also apply to same-sex de facto couples. The final category extends to same-sex de facto partners a prohibition from either doing or gaining something that is already extended to heterosexual de facto partners. The changes involve amendments to, for example, the Central Coast Water Corporation Act, the Farm Produce Act, the Local Government Act, the Lotteries and Art Unions Regulation and the Supreme Court Act 1970. None of these changes is in any way radical or controversial. Any attempt to portray them as such is only mischievous. They do not push boundaries or enter into dangerous new territory. They simply extend to same-sex de facto couples the same entitlements and, particularly in this legislation, obligations that currently apply to opposite sex de facto couples as a result of State legislation.
The third distinct part of the bill is schedule 2 relating to the Status of Children Act and two consequential amendments to matters relating to the registration of births, deaths and marriages, which is covered in schedule 3. I apologise if any member takes offence at my next remark, but no offence is intended. There is a great saying in the Australian vernacular that you can choose your friends but you cannot choose your family. It serves to remind us that at the centre of this debate must be our concern for the children, whatever their family circumstances. Honourable members must approach these changes on the basis of the benefits that will accrue to the children of same-sex partners rather than regarding them from the perspective of the rights of the parent or co-parent. I pay tribute to four of my colleagues, the Hon. Robyn Parker, the Hon. Trevor Khan, the Hon. Catherine Cusack and the Hon. Melinda Pavey, who have made the case for the extension of the parenting presumption in a passionate and forthright way. They have dealt also with a number of red herrings that have come up in this debate by way of email and other means. I could not add anything to the moving personal testimonials by the Hon. Helen Westwood and the Hon. Penny Sharpe.
I conclude by observing that while I do not disagree with my colleague the Hon. Catherine Cusack who said that these changes are certainly overdue, after having seen for more than 30 years the very real consequences of the fear of homosexuality and the ostracism, the discrimination and, far too often, the physical violence experienced by gays and lesbians, I am a little more sceptical, a little less optimistic and a great deal more pleased that we are finally seeing this legislation. I commend the bill to the House.
Dr JOHN KAYE
[10.38 p.m.]: The Miscellaneous Acts Amendment (Same Sex Relationships) Bill 2008 seeks to remove acts of discrimination against same-sex couples in parenting and raising children. The Greens support the bill, recognising that it is based on two basic facts. The first is that a quality loving relationship is not limited to people of different genders. The second is that a loving supportive environment for children can be and in many cases is provided by parents of the same gender. The introduction of this bill in Parliament is a tribute to the campaign for full equality for lesbians, bisexuals, gays, transgender and intersex people, which they have conducted over many years and the campaigns they also have conducted for the rights of children.
More importantly, this legislation is a measure of the maturity of the people of New South Wales who have begun finally, in growing numbers, to escape the shackles of prejudice. I cannot in any substantial way add to the contributions of other members who have spoken in support of this bill. I just pay tribute tonight to the Hon. Penny Sharpe and the Hon. Helen Westwood, who have not only given us solid and intelligent reasons to support this bill but have also had the courage to share with us their own personal experiences. I also pay tribute to my colleague Lee Rhiannon, the Hon. Robyn Parker, the Hon. Trevor Khan, the Hon. Catherine Cusack and the Hon. Melinda Pavey who have given us passionate support from a human rights perspective and ample evidence for that support.
In my own life, I have been delighted to watch children grow up as happy, healthy, well- adjusted kids with two female parents, and many members in this Chamber have shared an equal delight. But it is not just about our personal experiences; there is hardcore evidence to support the proposition that children who are raised by two parents of the same gender are in no way disadvantaged. I bring to the attention of the House the 2002 fact sheet on the Evidence of Outcomes for Children of Lesbian Parents, which was endorsed by the Victorian Attorney General's Advisory Committee on Gay, Lesbian and Transgender Issues. That fact sheet stated:
Over the last two decades increasingly complex investigations have consistently shown:
1. that lesbian parents and their children are as emotionally and socially well-adjusted as their heterosexual peers
2. children have similar gender-identity development and gender role behaviour
3. sexual orientation of the children shows the same distribution as the population
I would insert there, "Who cares?"—
4. personal development such as intelligence, basic personality, self-esteem and moral judgment are no different
5. social relationships with peers and adults of either sex are no different
6. relationships with parents are no different
That is to say that the Attorney General's department in Victoria, based on an extensive study of the literature, came to the inescapable conclusion that the genders of one's parents will not determine outcomes. The Federal Parliamentary Library Research Service concluded, from an extensive literature review, that:
the existing evidence indicates that the sexual orientation of parents does not appear to be a determinant of the success of a child's development. Nor does the presence of a father appear crucial for normal development
That is to say, two independent and unbiased observers of the scientific evidence came to exactly the same conclusion that the gender mix of the parents has no impact on the child.
I turn briefly to the opposition to this bill. There has been some rather loose use of statistics in this Chamber this evening. In particular, one member tried to equate what he referred to as broken families with families where both parents have the same gender. Of course, broken families include all nature of dysfunctional families and all nature of situations that would adversely affect children. But if one excludes all those types of families and includes only the same-sex families—and I totally reject the idea that same-sex families are in any way broken—then the evidence runs counter to that.
It seems to me that the arguments centre on the idea that the legislation somehow or other undermines the role of fathers in the community and with it the integrity of the so-called family unit. I cannot accept the argument that heterosexual families are in any way damaged by the recognition of same-sex relationships. Those sorts of contributions we have heard tonight raise the question: Is heterosexuality so fragile and is it so lacking in self-confidence that a diversity of relationships would somehow or other destabilise it? The Greens think not. I commend the bill to the House.
The Hon. JOHN HATZISTERGOS
(Attorney General, and Minister for Justice) [10.44 p.m.], in reply: I thank honourable members for their contributions to this debate on the Miscellaneous Acts Amendment (Same Sex Relationships) Bill 2008, which has evoked considerable emotion. By and large the contributions have been well thought-out and I commend those people who have expressed support for the legislation. I want to respond briefly to some of the issues raised, perhaps not with the thoroughness that some members' contributions deserve because of the time factor, but there are important things I need to put onto the record.
The first point made in a number of contributions is that this issue has been raised suddenly and thrust on people with a level of deceit and no opportunity for discussion in relation to the complex issues raised. That has been responded to by a number of members. There has been a Law Reform Commission analysis of the situation, which was reported to the Parliament. Submissions were obtained in relation to the issues and those submissions were both for and against. The commission reported its conclusions and the Government responded. I outlined that response at a press conference some time ago. The bill was introduced in the House before we adjourned for a couple of weeks and there was an opportunity for people to look at the legislation and make appropriate comments and responses. I fail to see how this report, and indeed the response that was made by the Government, can be seen as some sort of secret agenda. Quite the opposite: there has been a very open, thorough and transparent process in dealing with the complex issues that this legislation raises.
I also make a couple of responses in relation to matters that Ms Rhiannon raised about where we go from here after this legislation is passed, particularly in relation to male same-sex partners and their children and the other issue of surrogacy. I addressed that issue at the press conference when I announced that the Government was going to introduce this legislation. I made the point that unlike other jurisdictions, New South Wales does not have surrogacy legislation. Male same-sex partners and the rights of children in those relationships inevitably invoke consideration of surrogacy agreements and surrogacy law. At this stage, issues relating to surrogacy laws are being examined by the Standing Committee of Attorney General, which will next meet in July to further consider progress in relation to this matter. Ahead of our being able to resolve issues of surrogacy, I do not believe it is appropriate to consider the commission's recommendations relating to male same-sex partners having children and the status of those children because inevitably that raises the issue of the deletion of the rights of the birth mother.
In relation to some of the other contributions in this debate I want to make a couple of things fairly clear. The issue of biological fathers has been raised by a number of members, particularly the Hon. David Clarke. These issues in relation to the non-rights of sperm donors were ventilated when this Parliament passed the Status of Children Act in 1996. Section 14 (2), (3) and (4) of that Act make it specifically clear that a person is not presumed to be a father, nor is a woman presumed to be a mother, simply by means of ovum or sperm donation. That is the current status of the law. Furthermore, issues were raised in this House about the rights or otherwise of access to assisted reproductive technology by lesbians.
These issues were canvassed in the Assisted Reproductive Technology Bill 2007, which was passed by both Houses without any dissent. No-one spoke against the Assisted Reproductive Technology Act, which gives rights to people to access in-vitro fertilisation. The argument that there will be some monumental change in relationships ignores the fact that the Parliament passed the Status of Children Act 1996, which made it perfectly clear that one does not assume rights or obligations as a result of ovum or sperm donation. This Parliament also passed the Assisted Reproductive Technology Bill, which, as I said, confirms access to IVF technology by lesbian women.
This debate has also generated a great deal of passion about issues that have already been resolved. The reality is that regardless of whether members like it or accept it, women in same-sex relationships have and are rearing children. That is a fact of life. The real issue in this debate is not whether that is right or wrong, because that has already been determined. The issue members must determine is whether the children of those relationships will have the same rights as children of opposite-sex relationships. If members do not support this bill, they will be saying that those children should not have those rights. That is what this legislation is about. All the other issues that have been raised have been dealt with and, in the case of the assisted reproductive technology legislation it was unanimously agreed to in this Parliament.
As I said, members can have whatever view they want to have, but these children and these relationships exist. They must acknowledge that fact and give these children the same rights that every
other child has in a family. Those rights include access to workers compensation benefits that might flow
from the same-sex partner of the birth mother, access to victim compensation benefits, rights of
inheritance under intestacy, the right to be covered by the provisions of the Children (Care and Protection) Act with regard to the same-sex partner, and for the same-sex partner to have the right to consent to a medical procedure. At the moment, if the birth mother were to pass away, the same-sex partner who has been in a relationship with the birth mother and who has been raising that child would have no legal nexus to that child. This legislation simply reflects reality, and that reality is based on decisions that have already been made by this Parliament.
I will deal with the amendments shortly. A lot of misinformation has been presented in the past few days about the status of birth certificates. It has been mischievously suggested that somehow fathers will be deleted from birth certificates. I make it abundantly clear that that is not the intention of this legislation. The Government will support the amendment proposed by Reverend the Hon. Fred Nile to make it clear that mothers and fathers can be included on birth certificates. However, that will not stop other descriptors being used. I will reserve further details for the Committee stage.
Question—That the amendment of Reverend the Hon. Fred Nile be agreed to—put.
The House divided.
Reverend Dr Moyes
Question resolved in the negative.
Question—That this bill be now read a second time—put and resolved in the affirmative.
Motion agreed to.
Bill read a second time.
Mr Della Bosca
Suspension of Standing Orders: Instruction to Committee of the Whole
Motion by Reverend the Hon. Fred Nile negatived:
That standing orders be suspended to allow a motion to be moved forthwith: That it be an instruction to the Committee of the Whole that it have power to consider amendments relating to discrimination motivated by the religious convictions of a person.
Ms LEE RHIANNON [11.03 p.m.]: I move:
That standing orders be suspended to allow a motion to be moved forthwith: That it be an instruction to the Committee of the Whole that it have power to consider:
(a) amendments relating to discrimination in employment, and
(b) amendments relating to adoption.
I remind members of the long title of the bill, which states:
An Act to amend various Acts and instruments to make further provision in relation to same sex and other de facto relationships.
Members can see from that long title that the leave of the bill is considerable. I argue there is a clear case to consider our amendments, which have been drafted by Parliamentary Counsel. There are two parts to the motion. The first refers to amendments relating to discrimination in employment, which relate to amendments to the Anti-Discrimination Act. Members will recall that the Greens introduced a private member's bill that was designed to close the loopholes that allow religious organisations and small businesses to discriminate against people on the basis of their sexuality. I argue this is within the leave of the bill because by far the majority of complaints received about this aspect of the anti-discrimination laws relate to people who are discriminated against by their employers when it is discovered they are in a same-sex relationship. On that basis there is a clear case to consider our proposed amendments.
The second part of the motion relates to adoption. Our proposed amendment relates to schedule 2 to the Status of Children Act. The bill seeks to amend numerous pieces of legislation, and I suggest it would plainly be wrong to not give consideration to adoption issues at this point. We would be creating a dangerous precedent with regard to legislation with such a wide-ranging long title if consideration of our amendments is not agreed to. I strongly urge members to support this motion to allow the consideration of our amendment. I realise the hour is late and that the debate has been lengthy, but that is no reason to reject what I regard is a fair point of view. We should have this discussion, rather than gag debate on such an important matter.
Question—That the motion for the suspension of standing orders be agreed to—put.
The House divided.
Question resolved in the negative.
Mr Della Bosca
Reverend Dr Moyes
Clauses 1 to 7 agreed to.
Reverend the Hon. FRED NILE
[11.15 p.m.]: I have concerns about the effects of the amendment to the Anti-Discrimination Act 1977, which will add a new category of domestic status, which really means domestic same-sex relationship status. Under this provision some people may feel justified and see this as an opportunity to make a complaint to the Anti-Discrimination Tribunal about individuals or organisations that conduct events emphasising traditional heterosexual relationships, such as running a Father's Day picnic. I had foreshadowed moving amendments to cover people who have religious convictions and who only accept relationships between people of the opposite gender, that is, a male and a female. People with such sincere beliefs, who are, in effect, conscientious objectors, should not be discriminated against. Such a defence is available in the Anti-Discrimination Act for religious organisations but not for individuals. I am not able to move those amendments, but I ask the Minister to give that matter consideration. Perhaps he could introduce legislation at a later time to incorporate such provisions.
The Hon. JOHN HATZISTERGOS
(Attorney General, and Minister for Justice) [11.18 p.m.]: The Government will not support the proposal put by Reverend the Hon. Fred Nile, the effect of which would be to delete an essential aspect of the legislation. A number of situations require a person to disclose whether he or she is in a same-sex relationship. It follows, therefore, that if people are obliged to disclose the fact that they are in a same-sex relationship, discrimination against them for disclosing the fact that they are in a same-sex relationship should be avoided. The bill does that by providing that it is unlawful for people to discriminate against a person on the basis of the same-sex relationship unless one of the other exemptions in the Act is met.
Schedule 1 agreed to.
Schedule 2 agreed to.
Reverend the Hon. FRED NILE
[11.20 p.m.]: I move Christian Democratic Party amendment No. 2:
No. 2 Page 13. Insert after line 17:
 Clause 5 (3)
Insert after clause 5 (2):
(3) If the particulars supplied to the Registrar under section 14 of the Act specify that:
(a) a parent who is the father of the child wishes to be identified in the Register as the father, or
(b) a parent who is the birth mother of the child wishes to be identified in the Register as the mother,
or both, the particulars entered in the Register under section 17 of the Act must identify the parent as the father or mother, as the case requires. This subclause does not limit the particulars which may be included in the Register.
The amendment seeks to address the criticism that the bill's wording seems to devalue the role of the father in that it gives the appearance that the father would not be shown on the birth certificate in this circumstance. What appeared to be an omission and a downgrading of the role of the father has caused a deal of concern about the legislation as a whole; indeed, most of the criticism has focused on that aspect. I have been endeavouring, as have other members, to find a way of resolving that situation. The Attorney General has indicated that it was never the Government's intention to make any statement in the legislation about the role of the father or the importance of fatherhood. If that is the case—and I believe it to be the case—I seek the Government's support for the amendment and the support of Opposition members by way of a conscience vote.
The Hon. JOHN HATZISTERGOS
(Attorney General, and Minister for Justice) [11.22 p.m.]: The Government will support the amendment. As I clearly indicated in my second reading speech, it is not the Government's intention to modify the way birth certificates are issued in the sense of removing the names of mothers and fathers. Indeed, the current practice in relation to the naming of mothers and fathers has been an administrative practice that is not regulated by specific provisions. However, in order to allay any concerns we are happy to support the amendment.
Question—That Christian Democratic Party amendment No. 2 be agreed to—put and resolved in the affirmative.
The Hon. CHARLIE LYNN [11.22 p.m.]: I place on record that I had intended to move a similar amendment. I commend Reverend the Hon. Fred Nile for moving this amendment, which I support.
Reverend the Hon. FRED NILE
Christian Democratic Party amendment No. 2 agreed to.
[11.23 p.m.], by leave: I move Christian Democratic Party amendments Nos 3 to 9:
No. 3 Page 25, schedule 3.27 , lines 22 and 23. Omit all words on those lines. Insert instead:
 Sections 55 (1), 58 (1) (d) and (2) and 60 (3)
Insert "or partner" after "paternity" wherever occurring.
No. 4 Page 25, schedule 3.27 , line 29. Omit "Partner leave
". Insert instead "Paternity or partner leave
No. 5 Page 25, schedule 3.27 , line 32. Omit "Partner leave". Insert instead "Paternity or partner leave".
No. 6 Page 25, schedule 3.27 , lines 35 and 37. Omit "partner leave
" wherever occurring. Insert instead "paternity or partner leave
No. 7 Page 26, schedule 3.27 , lines 1 and 2. Omit all words on those lines. Insert instead:
 Section 58 Notices and documents required to be given to employer
Insert "or partner
" after "Paternity
" in the heading to section 58 (2).
No. 8 Page 26, schedule 3.27 , lines 17 and 22. Insert "paternity or" after "extended" wherever occurring.
No. 9 Page 27, schedule 3.27 , line 1. Omit "partner leave". Insert instead "paternity or partner leave".
These are very important amendments. The legislation removed the term "paternity leave" and replaced it with "partner leave". Once again this gave the impression that the legislation was making a statement about paternity, which is a reference to the father, and again it was interpreted as a downgrading of the father's role. As the Attorney General has indicated, it was not the Government's intention in the legislation to make any ideological statement about paternity. The effect of amendments Nos 3 to 9 would be to restore the word "paternity" so the relevant provisions would read "paternity or partner leave".
The Hon. JOHN HATZISTERGOS
(Attorney General, and Minister for Justice) [11.24 p.m.]: The Government supports the amendments.
Question—That Christian Democratic Party amendments Nos 3 to 9 be agreed to—put and resolved in the affirmative.
Christian Democratic Party amendment Nos 3 to 9 agreed to.
Schedule 3 as amended agreed to.
Title agreed to.
Bill reported from Committee with amendments.
Adoption of Report
Motion by the Hon. John Hatzistergos agreed to:Motion by the Hon. John Hatzistergos agreed to:
That the report be adopted.
Motion by the Hon. John Hatzistergos agreed to:
Bill read a third time and transmitted to the Legislative Assembly with a message seeking its concurrence in the bill.
That this bill be now read a third time.