Adoption Amendment (Adoption by Same-Sex Couples) Bill 2015

Ms PENNICUIK (Southern Metropolitan) — I am very pleased to speak today on the Adoption Amendment (Adoption by Same-Sex Couples) Bill 2015, both in a personal capacity and on behalf of my fellow Greens in the Legislative Council. In the last sitting week our colleague Mr Sam Hibbins, the member for Prahran in the other place, also spoke strongly in favour of this legislation and that was supported by our colleague Ms Ellen Sandell, the member for Melbourne.

The bill is a long overdue reform in Victoria to allow for adoption by same-sex couples. It reflects longstanding Greens policy. It has always been Greens policy to remove discrimination wherever it exists in our statute book. Those members who have shared time with me, Mr Barber and Ms Hartland in the previous parliaments and with our new members of Parliament will know that we have been advocating for this change both inside and outside the Parliament for a long time.

In fact on 30 October 2008, more than seven years ago, we were debating the Assisted Reproductive Treatment Bill. That debate took a very long time — a number of weeks — and also time while it was considered by the legislation committee. I then referred to the lack of a change to the Adoption Act that could have been made when we had that bill before us.

The Assisted Reproductive Treatment Act 2008 allowed for equitable access to assisted reproductive technology, including donor insemination, in vitro fertilisation and related procedures, and surrogacy. It ensured that legal recognition was given to the relationship between non-biological parents in same-sex-parent families and the children and that same-sex partners of biological parents were able to adopt the children born into the family. But I did say that there was something missing in the bill, and that was the ability for same-sex couples to adopt children. Even way back then same-sex couples were able to foster children, and I said that this was discrimination and should be removed from the law. It is good that we are here today to finally fix this situation.

This bill has very simple purposes: to amend the Adoption Act 1984 to enable the adoption of children by same-sex couples and to amend the Equal Opportunity Act 2010 to remove the exception to the prohibition to discriminate in relation to religious bodies that provide adoption services. The bill is reasonably simple in that the vast majority of it goes to the definitions in the bill. For example, it removes the term 'de facto' and changes it to 'domestic partner' and talks about a 'domestic relationship' and a 'registered domestic relationship', with terms such as 'de facto relationship' and 'de facto spouse' being removed from the act. Where the act refers to a 'man and a woman', it will now refer to 'two persons'. These are the major changes to the act that will allow for the adoption of children by same-sex couples.

Children who are in permanent care with same-sex and gender-diverse-parent families will now have the security of being adopted if the other circumstances are right for adoption. This is the overwhelming majority of children who will be affected by the bill. There will be gender-neutral language throughout the Adoption Act 1984, and again that will facilitate same-sex adoption. Associated changes in the Relationships Amendment Bill 2015 also mean there will be similar residency requirements and mutual recognition for same-sex couples in registered domestic relationships to those for married couples.

I would like to briefly raise a point here that was raised by the Scrutiny of Acts and Regulations Committee with regard to clauses 7 and 9 of the bill, and I have mentioned this to the minister. I refer to the different living arrangements that are preconditions for adoption depending on whether the applicants for adoption are married, in a registered domestic relationship or in an unregistered domestic relationship.

The Scrutiny of Acts and Regulations Committee (SARC) raised an issue as to the compatibility of clauses 7 and 9, which require different living arrangements as preconditions for adoption depending on whether applicants for adoption are married, in a registered domestic relationship or in an unregistered domestic relationship, and whether this accords with the Charter of Human Rights and Responsibilities Act 2006 when it comes to discrimination on the basis of marital status.

A registered domestic relationship or an unregistered domestic relationship can of course refer to a same-sex couple or any two persons living together. The difference in this instance is whether they are married or unmarried. I would like the minister in her summing up, or one of the other government speakers, to explain why that anomaly has been allowed to remain in the bill.

Of course this just raises another argument in favour of marriage equality. Adoption equality is being introduced by this bill, but if there were marriage equality, then less people would be affected by that anomaly. Some people may still be affected by the anomaly because not everybody wants to be married. Some people are happy to be in a registered domestic relationship and some are happy to be in an unregistered domestic relationship, so it is an anomaly in the bill.

I note that the Scrutiny of Acts and Regulations Committee points the Parliament to similar laws that have been enacted in the ACT and New South Wales which impose identical conditions on all couples who seek to adopt, whether they are married, in a registered domestic relationship or an unregistered domestic relationship. I think the anomaly in this bill is perhaps an oversight and is something the government could look at correcting when it has an opportunity to do so.

I note that the minister has written back to SARC. I saw that letter only a couple of hours ago. Basically the minister is saying that this was not in the terms of reference of the review conducted by Mr Eamonn Moran. I take this opportunity to commend Mr Moran on his report and recommendations. However, just because it was not in the review does not mean it is not something the government could address.

According to the census, in 2011 there were around 2700 children and young people in rainbow families, and the bill before us will now enable those children who have not been adopted by the parents in those families to be adopted, and that will create legal certainty.

The parents named on a birth certificate have legal rights with regard to, for example, medical decisions, decisions about inheritance and other legal decisions that are very important for the people undertaking the parenting roles — the day-to-day, close, loving parenting roles with those children — and this provides that legal certainty. We know that same-sex foster families have existed for many years, and some of those families may in fact be first to take advantage of this new law.

I take the opportunity to pay tribute to the Rainbow Families Council and the Victorian Gay and Lesbian Rights Lobby, which have worked very hard for years and years. People have also supported them for years, including the Greens. I have worked closely with those groups on this issue, particularly with Rainbow Families. As I say, I pay tribute to the people of that organisation for their work, and I feel very happy for them today. For all the other families in the community who may be watching this debate today and who have been waiting for this for a long time, I also feel very happy. I note too that many years ago, in the lead-up to the Assisted Reproductive Treatment Bill 2008, which I mentioned before, also recommended providing not only for same-sex adoption but also for adoption by single people, which is another issue we should be looking at and which could have perhaps been included in this bill.

The Human Rights Law Centre and the Law Institute of Victoria are also very strong reporters of this legislation, as are some of the religious organisations, such as Anglicare which has come out in support of the legislation and in support of clause 17 in the bill. Clause 17 will repeal the exemption that religious organisations that supply adoption services have under the Equal Opportunity Act 2010. Going back as far as 2007, on many occasions in this Parliament I have moved to remove all religious exemptions from the Equal Opportunity Act. I agree totally with what Mr Leane was saying, that there should be no basis in the law — and our laws are secular laws which should apply to all persons in the community equally — on which any religious organisation should be able to discriminate against persons in the community.

I also make the point that there still is residual discrimination in our Equal Opportunity Act. I congratulate the government on putting clause 17 in the bill, which will repeal that exemption in the act, but I would encourage the government to go further and take out all religious exemptions which exist in the act. I point out that those exemptions allow for widespread discrimination, based on not just sexuality but also marital status and parental status. These forms of discrimination still exist under the act, and the relevant exemptions should be removed. All citizens should be treated equally, and no organisation should be able to discriminate against certain people based on a religious belief. Nobody should be subject to discrimination from other persons. Everybody is entitled to the same respect and dignity as everybody else. The Greens will therefore not be supporting any amendment or attempt to remove clause 17 of the bill, which we are strongly in favour of.

I want to raise another issue. I know that other members will have received correspondence from the group VANISH. Ms Bath mentioned forced adoptions. An apology was undertaken in this Parliament in October and November — the motion was on the notice paper for quite a few weeks as people spoke to the motion. Quite a while before that I had, by way of a question to the minister, asked that the Parliament of Victoria make that apology. That was one of the other great times in the Parliament where we came together and apologised for what had happened in terms of forced adoptions. We know that forced adoptions caused a lot of damage to the women who were forced into that position. I said at the time that many of them were teenagers, they were powerless, they were helpless and they had no economic support. Unless they had strong family support, they were basically forced into relinquishing their children, in some cases never to see them again.

We also had myths perpetuated in the community such that some children who were adopted believed that their mothers had relinquished them willingly, which was another form of damage done — to the adopted children. We made that apology, and with what we are doing we need to make sure we do not again go down the road of creating any of those problems in the future.

We know the number of adoptions is much lower now because parents get support, even though I have to say that under the previous federal government some of that support was wound back. Certainly the Greens opposed that. But there are economic and other supports available so that people can keep their children.

One outstanding issue that I have pursued in the Parliament — and it is one of the issues that was raised by VANISH — is the right of all children to know the truth about their birth. This is an issue that I pursued with regard to donor-conceived people. On 23 June 2010, which was the 30th birthday of Candice Reed, the first person born in Australia under in-vitro fertilisation, I moved a motion in this Parliament seeking that the issue of access to information by donor-conceived people be referred to the parliamentary Law Reform Committee. That committee reported on the issue in 2012. We had different rights for donor-conceived people as to the information they could have about their birth or biological donors depending on when they were conceived. In August last year some changes were made, but they did not go far enough and there are still some gaps in terms of access to information.

The question that I would like the minister to answer — and I have given her notice of this — relates to the fact that while we are supportive of people looking after children being regarded as the legal parents, we wish to see that all children have access to all the information they need about their birth in terms of their biological parents, not only the people who are known to be the legal parents — as they will be under adoption — but also the donors, because children may be the result of donor conception.

During the 2008 debate I moved an amendment to the bill that enabled Births, Deaths and Marriages Victoria to attach a note to any birth certificate where a child has been donor-conceived to show that there is more information about that birth. I am seeking an assurance from the minister that all children will have the right — as they should have and as is expressed in the United Nations Convention on the Rights of the Child — to full information about their genetic heritage to make sure that this legislation that we are fully supporting also upholds that right for all children.

As I said, I am very pleased on behalf of the Greens to support this bill. I congratulate the government for bringing it in. There are a few queries I have about it, but overwhelmingly we are very supportive of it and wish it a speedy passage through the Parliament.

In Committee:

Ms PENNICUIK (Southern Metropolitan) — My question on clause 1 goes to the issue of the ongoing availability to adopted children of all of the information about their biological heritage. I mentioned this in my contribution to the second-reading debate.

We had a situation where varying degrees of information were made available to adoptive children under the Adoption Act prior to 1984 as well as through changes made since then. This was also with respect to donor-conceived children. Members who were in the previous two Parliaments know that those issues have exercised our minds very vigorously, along with groups such as Vanish in particular and Tangled Webs, which was a group formed by donor-conceived young adults who found themselves in the situation of not being able to find out their biological heritage.

The Greens are very supportive of the bill and the changes it makes to ensure that the same-sex parents of children who are living in those loving families are recognised as their legal parents but also that those children are still able to access information about their biological parentage. This issue may be addressed under the Births, Deaths and Marriages Registration Act 1996. Section 17B of that act reflects the amendment I moved back in 2008 that requires the registrar to attach a note to a birth certificate if a person is donor conceived in order to alert that person to the fact that there is more information about their birth being held.

I am wondering if the government can reassure us that the person who donates a gamete — depending on whether that is a male or female — can be found by a child later in life in a case where that person is not actively engaged in the life of the child. Dear friends of mine, for example, are a same-sex female couple. One of them had a child. The person who was the biological father of the child is known to them and is involved, so the child knows who that person is. But in some cases that might not be the case, and when the children grow older they may want to have that information. I want to know how that will be achieved.

Ms MIKAKOS (Minister for Families and Children) — I thank the member for her question. I agree with the member and have certainly put this view on the record in the past in relation to the donor-conceived issue — that the children deserve to have knowledge about their identity and have access to that identifying information. The member might be aware that the government has committed to changing the law to give all donor-conceived people an equal legal right to available identifying information about their donor, regardless of when the donation occurred and whether the donor consented. The government recently sought and is considering public submissions on this issue.

I make the further point to the member that it is my understanding that rainbow families — same-sex couples who have children — have in fact gone out of their way to provide that identifying information to children in relation to these matters. I would hope that other parents in adoptive situations would take a similar view — that children have the right to have information that relates to their identity. But the specific issue around donor conceptions is a matter that the government is examining as part of a separate process to the bill before the house.

Ms PENNICUIK (Southern Metropolitan) — I thank the minister for that information, and I am very happy to hear that finally people will not be discriminated against based on the date they were conceived or born in terms of finding out that information. The example I am thinking of is where there was not a donor conception or artificial insemination involved in the creation of the child but rather another person, but that person is not in the life of the child. How is that information still available to the child?

Ms MIKAKOS (Minister for Families and Children) — I thank the member for her question. I am just trying to get some clarity about this scenario because as I understand it the member is asking about essentially what is a normal donation context, not one where a donor is involved, in which case I can advise the member that there are provisions in the Adoption Act currently that would relate to having access to identifying information. That has not changed.

Interjections during debate.

Ms PENNICUIK (Southern Metropolitan) — My question with regard to clause 7 — and it applies to clause 9, but I will just ask it under clause 7 — is with regard to the difference between the criteria that apply for persons who are married as opposed to persons who are living in a domestic relationship. Persons who are living in a domestic relationship have to have been living in that relationship for not less than two years, but that does not apply to married persons — that is, in terms of living together for two years. This is an issue that was raised by the Scrutiny of Acts and Regulations Committee in that it perpetuates a discrimination based on marital status, basically. I am wondering if the minister could comment on that.

Ms MIKAKOS (Minister for Families and Children) — I thank the member for her question. It is my understanding that the Scrutiny of Acts and Regulations Committee (SARC) did raise this issue. It is important that members understand that the bill, as I said before, is a fairly straightforward and simple one in terms of removing the current discrimination against same-sex couples. There are existing provisions in there that relate to currently married couples and also to the living arrangements of couples who are eligible to apply to adopt. Essentially what this bill has done is extend those current provisions on a similar basis to people in a registered domestic relationship as well as to people living in a domestic relationship.

The minister has in fact responded to SARC, I understand, and his response has been published in the Alert Digest in relation to this matter. He has advised the committee of the differential treatment of married and de facto couples in relation to cohabitation requirements that currently exist under the present act. The reforms in the bill were informed by the review that was conducted by Mr Eamonn Moran, QC. In conducting that review a range of issues were identified that were beyond the scope of the review. One of those was the issue of achieving consistency in the cohabitation requirements.

The member may be aware that this bill is the second in a tranche of reforms of the Adoption Act 1984. We already had earlier this year reforms that related to the removal of the contact statements and the criminal penalties that applied in relation to natural parents affected by past adoption practices. The government has also made a further election commitment to undertake a modernisation of the Adoption Act. We are currently finalising the review process and the terms of reference for that modernisation, and we are intending to announce the details of this later this year with a view to the review taking place next year.

That review, I want to make it very clear, will not revisit the issue of same-sex adoption. We had a very clear election commitment in relation to that issue. We also had a very clear election commitment in relation to contact statements. But the review will look at modernising the legislation in relation to other issues that have been identified, not only the issues in the review that Mr Eamonn Moran, QC, conducted that he found were outside the scope of the issues that he was tasked to look at but also other issues that members of the public have raised from time to time.

I do not want to indicate to the house at this stage the kinds of issues that that review will look at, because the terms of reference are still being finalised, but the issue that the member has identified is a very valid issue that I think needs further examination and may well be examined as part of that broader modernisation review of the Adoption Act.

Ms PENNICUIK (Southern Metropolitan) — I thank the minister for her answer, and I take on board everything she said. But I would draw to her attention also that what the committee did point out was that similar laws in the ACT and in New South Wales impose identical conditions on all couples who seek to adopt, whether they are married or in registered or unregistered domestic relationships. So there was an opportunity, whether or not it was covered by the review, for the government to actually look at that.

I make the point that although this particular differentiation is based on marital status, it could also be argued that that impacts more on same-sex couples, who are prevented from being married in Australia — as I said in my contribution, that is just another reason for marriage equality — but of course it will impact on those persons who are not in a same-sex relationship but also do not want to be married or have chosen not to be married and have chosen to live in a registered or non-registered domestic relationship.

I think the minister said it may well become part of the review. But I would hope it would become part of the review, because of course we do want to make sure that people are not discriminated against on the basis of these types of status.

Ms MIKAKOS (Minister for Families and Children) — I inform the member as someone who does support same-sex marriage and removal of that level of discrimination that currently applies to same-sex couples that those who may not wish to pursue a marriage, should the law change at a federal level at a future point in time, will still be able to register their relationships under the Victorian law and therefore come within the scope of the provisions of this bill. So they will not be excluded if they wish to register their relationship.

But as I said to the member, we are going to embark upon a modernisation review of the act and this issue may well be the subject of submissions, should the terms of reference include these kinds of issues within their scope. But given that the issue has already been examined by Mr Moran, QC, in his review, I would imagine that these are exactly the kinds of issues that we may well be looking at in this next phase of modernising our Adoption Act.