Justice & Related Legislation (Marriage Amendments) Bill 2018 (No 47)

[7.31 p.m.]

Ms ARMITAGE (Launceston) - Madam Deputy President, society can sometimes be cruel and minority groups do exist. I accept that unless people are actually part of these groups, they would likely be oblivious to them, but is like all things - it is about having skin in the game. We are affected when we are involved. I agree that equality should be a right and not a privilege and all children should be able to go through life without the question of how society will see them.

I also support the view parents should not be forced to make a determination about the sex of a baby when it is unclear or be forced to have corrective surgery. However, I am disappointed this bill has been brought forward in its current form and following many briefings, including from the Solicitor-General, the Registrar of Births, Deaths and Marriages and the Office of Parliamentary Counsel, it is apparent to me this bill has many deficiencies.

When I consider the families who briefed us and heard their personal stories - I see the tears in their eyes and hear the passion and anguish in their voices when they speak about their children - it would be very easy to support and vote to pass this bill. I am sure many others in the House feel the same way - you listen to their stories and you can just imagine that if it were you, of course you would do anything you could to try to help your children and you would lobby as much as you could. I know exactly how they feel. I seriously feel for them, but I do not believe I would be

doing my duty as a member of this Council or helping those in the community this bill is purported to help by supporting this bill in its current form.

The amendments in the other place were outside the scope of the original bill and should never have been allowed. The original bill had a limited purpose, which was to make Tasmanian laws compliant with the Commonwealth legal definition of marriage. The broader unrelated changes tacked into this bill are not a proper way of dealing with these changes to the law.

Significant changes such as removing sex from birth certificates and allowing self-identification should be dealt with as a separate piece of legislation. Making good law takes time and extensive consultation with the community and with experts. Good law that serves the public good is not made on the basis of emotion alone. As I said, emotionally I could certainly support the bill.

It is my opinion, and that of many others to whom I have spoken, that the marriage bill should have been allowed to proceed as drafted and a new bill for the transgender amendments put up allowing adequate time for community consultation on these proposed changes.

We have heard in briefings that the Government had ample time to bring forward a bill such as this, hence the reason these amendments were added to this bill. It is my understanding that members of the other place, other than Government members, have in the past brought forward bills such as on euthanasia. I question why a bill dealing with the issues of gender on birth certificates and self-identification was not properly researched with adequate community consultation given its importance. Perhaps a select committee of both Houses could have been implemented.

My belief is that the Legislative Council's responsibility is to put forward good laws based on fact and consequence, not laws based on personal belief or emotion. Passing this bill as it currently stands, even with all the amendments, I would be supporting it on emotion. We must endeavour to get it right the first time. We cannot underestimate the importance of a proper policy structure designed and worked up in order to frame the bill so we have a rock on which to build provisions. There is usually considerable study by policy officers. That sort of work is designed to capture any consequences identified in a systematic way, not in an ad hoc way.

I have a lot of sympathy for people in this situation. I know people who are transgender but I cannot let my personal feelings cloud what is in the best interests of good laws for this state and the very people we are wanting to help. Same-sex marriage was okayed but the public was not asked about removing sex markers or self-identification. I hear constantly that the bill is simply about removing gender from a birth certificate. It is in fact much more than that.

As mentioned earlier, the original bill was simply to bring us in line federally with the changes to same-sex marriage but neither this current bill nor the amendments have been put forward for any public discussion or consideration.

We need to ensure everyone is treated equally and the bill is the best it can be. Protecting people and children is exactly what we are trying to do here, by making sure we get this bill right. From speaking to people in this situation, they tell me what they want is simply the ability to have a recognised identification certificate that identifies the current name and gender for people. I support that, but I feel the path we are going down with this bill is far more radical than that with too many unknown consequences. There is an alternative way to deal with this bill. I consider the amendments passed in the lower House were ill-considered and not consultative. I want to make sure that there is a proper quality bill that can go forward with some confidence that it will survive a court challenge.

We need to respect people who wish to transgender and provide some comfort for them, but I am concerned about rushing this bill through too quickly. I believe we need to slow down and consider and tease out complications and effects of the legislation and amendments as there are real and potential risks.

We have had many briefings from a variety of groups. We heard from one school that parents are asking -

Why don't we have a voice? Why do only some have a voice? We should hear a balanced view on this by giving everyone a chance to have a say and we are concerned that this law is being rushed through. We should all be on the journey together.

I would hope that all schools are supportive of gay and transgender students, but we should slow down and give time for consultation because so many issues need to be addressed - for example, school sporting teams, school camps, toilets and so on. No-one wants transgender students to feel different or to be bullied. I believe there needs to be time to make the necessary changes.

We need to produce a total bill that works together and we need to be consistent in the language we use. We need to remove any ambiguity. I believe we need another legally recognised form of identification to replace a birth certificate in many instances. The birth certificate could be used to gain this piece of identification, but not for general use. This could have been fleshed out in a committee process.

A birth certificate is that, a certificate of birth. A birth certificate is the proof to the world of your legal identify. The Births, Deaths and Marriages Registration Act 1999 establishes a person's identity and tracks it through time. We need to know who it is and be sure about it. Female or male identifies a person's legal entity. You need to know if somebody changes their name or their sex. I accept people who are transgender need some form of identification to prove identify, but I question whether there could not be something else put in place rather than a birth certificate.

There appear to be significant challenges operationally with major changes to the structure of birth and death certificates. We need to undergo a thorough testing plus communication to stakeholders such as the Australian Bureau of Statistics whereby we collect and supply because they would need lead time to adjust their systems.

There are many government departments who have not had the time to look at the bill or amendments fully to ascertain what they need to do and what processes they need to put into place, should this bill become law.

The Department of Health and Human Services is one such department. I question whether it has been consulted. It would need a considerable systems review because in a clinical setting, a person's sex needs to be known. Education is another area that will require significant investment in student resources. It is unclear what the practical implications would be in a non-binary situation. They will need to tailor a program to this.

We were told by Rodney Croome this is the only process that will succeed, that the Government has shown no interest in advancing this issue, despite an immense amount of lobbying and no demonstration of will to move this issue forward. That may or may not be the case, but I dispute this is the only process that will succeed.

I hope this bill can still go to Committee to ensure robust legislation will stand the test of time. There could have been a private member's bill at any time from the other place, but did not happen.

We have repeatedly been told there could be unintended consequences. My question is: can we ignore them because we know better? I am not a lawyer and I do not know better. I have tried to put a few amendments up that hopefully will help the bill. The amendment to do with changing gender that is not reassignment surgery, but not simply a statutory declaration or counselling.

My preference is to split the bill and make sure we have this other part of the bill correct and right. I understand the urgency for many in this state who are affected, but as we were told by Chris Gunson, the President of the Tasmanian Bar, we need good legislative processes. It is better to get it right the first time. Why would you pass potentially problematic legislation?

We have been told in briefings that you not only have to consider the benefits to an identified section of the community, but also test the policy to reference on how the worst people in the community might take advantage of it.

There are many questions. Would this bill create gaps in a person's history? How many times could a person alter their gender identity? Could they have two Medicare cards or tax file numbers or two passports? This all needs to be carefully considered.

The question was asked in briefings about whether it would be possible for a serial paedophile on a register who cannot get access to children here to change gender, get a new birth certificate and go interstate to access children. Do we know if this could happen under this bill? I would like an answer, but who will give it to me?

The intent of this legislation is commendable, but the risk with this particular bill is too great, because its consequences are unknown. A birth certificate is one of the most fundamental things a person has, and if it ceases to be recognised, it could have broader consequences for everyone than the benefits it is giving.

We should all deal with people in a respectful and tolerant way, whoever they are, but this does not always happen. We should provide protection and greater ability for transgender people to live life a little freer from discrimination. The people whose lives are affected by these amendments do not choose to be in the spotlight. It is one of the reasons we need to get this right the first time.

There is not a downside to allowing more consultation, as the key element of the Legislative Council is that it is a House of review. This bill will affect all the community and it is far too important to have it rushed. During consultation, the community can raise concerns and have these concerns addressed, as no one wants bad law.

While I would like to be an optimist and hope this bill goes to an independent review, I do have amendments to the bill should it go through the Committee stage. But I cannot in good conscience vote this bill into the Committee stage for the many reasons I have outlined earlier, but it is unlikely that my vote will be required.

I appreciate there are many amendments to try to fix this bill. I note the member for Murchison is up to version 20, and I accept the last one was to do with information from the Solicitor-General at our last briefing. I appreciate that changes keep getting picked up along the way necessitating yet another version of amendments, but I would think this should flag the very problems outlined by many particularly our legal experts.

I want to make a brief comment regarding my amendments, and I will speak more fully to those in the Committee stage. I agree with others that reassignment surgery is a step too far for many transgender people. That is why I have an amendment requiring two medical practitioners, one a psychiatrist, to ensure that when someone is making these major changes that can have serious and wide-ranging challenges that they do so with certainty.

Martine Delaney in her email of 26 March 2019 to members notes that -

Because the process of transitioning invariably requires close medical supervision, trans and gender diverse people commonly have a well-established relationship with their doctor.

I believe to add a psychiatrist to that mix should not be unduly stressful and will assist many people in their transition.

While I accept it would be easier to simply go to a psychologist and have counselling prior to changing your birth certificate and gender markers, as proposed by the honourable member for Murchison, a medical practitioner and psychiatrist are much less onerous in the current requirement of reassignment surgery and I see this as taking a centre ground. These are major changes in someone's life and it is important that someone wishing to change their gender do so with absolute certainty.

I also have an amendment to reinstate 'mother' and 'father' into the bill rather than just 'parent' as, on occasion, the parent or parents might not be the mother or father of the child.

My final amendment is to reinstate the amendment in the original bill to allow a person to not solemnise a marriage and discriminate against another person on the grounds of religious belief or affiliation.

I agree with the comments that kids should be able to be just kids and they should not have to be concerned about their welfare or safety at school. Schools should be a safe place. I would hope that we could put legislation together that would be robust and would help everyone to feel equal without the perceived unknown consequences we are advised are intrinsic in this bill.

We were told by the member for Hobart that some people would be ideologically opposed to this legislation. I accept the member clarified that he was not referring to members around this table. However, I fear that some people are ideologically in favour of this legislation irrespective of flaws or unintended consequences. All I want is good legislation.

I will support a bill without known unintended consequences that discourages discrimination and assists marginalised people in our society. Are we cruel if we do not support this bill as it is, as was purported by the member for Rosevears? I do not believe so but I will not be attacking my fellow honourable members because of their opinions as we are all entitled to them and I believe we should all be treated with respect. In fact, is that not what a lot of this bill is all about. I believe I am doing my job to ensure this legislation is as good as it can be particularly for those vulnerable people we are supposed to be helping. It is about good legislative processes as it is better to get it right the first time.

I am concerned with responsible government passing laws that we know are robust and hopefully not flawed, that will not have unintended consequences for anyone. When legal brains such as the Solicitor-General and president of the Tasmanian Bar tell us this is likely, I for one listen as I have the welfare of our state and all its citizens at heart.

The member for Mersey stated, in essence, that he had no problem with this House being involved in making policy. He is right, of course, when he said that this House could make policy but it has never been the practice of this House to be a House of policymakers. We are, and always should be, a House of review and that has always been the case in this House and all upper Houses in the Westminster system of government. If we want to act otherwise we are just a replica of the House of Assembly and real questions could and should be asked whether this House should continue to exist. People could quite rightly argue to just increase the size of the lower House.

I cannot agree with the honourable member, and I will always be a strong advocate that this House remains a House of review. As a House of review, I continue to look for the best evidence to help guide my thinking. With that uppermost in my mind on this issue, I cannot go past the evidence obtained in briefings from the Solicitor-General and Mr Chris Gunson, the current president of the Tasmanian Bar.

The law and its practice, which includes the understanding of legislation and its effects, are their bread and butter. This House has often asked for the advice from the Solicitor-General to governments. We accept it as learned advice and correct advice, and I cannot understand why a number in this House are saying they know better because we know that both the experts who have briefed us say this bill may have unknown consequences and should be properly examined before becoming law.

The best place for this examination is of course the Tasmania Law Reform Institute. But again, we know better and we are not even going to avail ourselves of that opportunity if we pass this bill as it is now worded, and may be amended.

Why is there a problem? It is because the bill was hijacked downstairs with amendments which we are told just would not have worked. That would not have occurred if the bill had adhered to proper process. Members in this Chamber have often stated that proper procedure should be followed. Yet a number of those same members are now arguing the opposite. They are saying we are prepared to forgo proper procedure with this bill.

I want to be consistent, not inconsistent. I want to follow proper procedure. I have no problems with a number of the amendments if I can be satisfied that those amendments are good law. But if the legal experts cannot be sure of that, then how can I? I ask: how can anyone in this Chamber? I therefore cannot support the bill.