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Justice And Related Legislation (Marriage Amendments) Bill 2018 - Legislative Council Amendments - full debate


Cassy O'Connor MP

Cassy O'Connor MP  -  Wednesday, 10 April 2019

Tags: Birth Certificates, Transgender Tasmanians, Gender Reform Laws, Catholic Church

Birth certificate law reform debate: O'Connor and Woodruff

 

Justice And Related Legislation (Marriage Amendments) Bill 2018 (No. 47)

Bill returned from the Legislative Council with amendments.

 

Mr FERGUSON (Bass - Leader of Government Business) - Madam Speaker, I move -

That the last mention message be taken into consideration tomorrow.

 

Ms HADDAD (Clark) - Madam Speaker, I move –

That the last mention message be debated forthwith.

Madam SPEAKER - Do you seek to amend it?

 

Ms HADDAD - Yes. Madam Speaker, I move –

That the motion be amended by deleting all of the words after the word 'debated' and replacing them with the word 'forthwith'.

 

Mr Ferguson - There is no word, 'debated' in the motion.

 

Ms O'CONNOR (Clark - Leader of the Greens) - Madam Speaker, we support the amendment as put by my colleague, the member for Clark, the shadow attorney-general, that this debate on the amended legislation be dealt with by parliament forthwith. It is extremely important that this House recognises it has a responsibility to deal with this amended legislation today. It has been rigorously examined by both Houses of the Tasmanian Parliament and a majority of members in both Houses of Tasmania's Parliament have agreed that the Births, Deaths and Marriages Amendment Bill, as it is in this House today, should be passed. It should be passed today because every day we delay on dealing with this legislation is a day that potentially causes harm to transgender people, and that is a fact that is recognised by a majority of members in both Houses of the Tasmanian Parliament.

We sought yesterday to have the Premier provide some clarity to transgender Tasmanians about when this legislation would be debated and he refused to do so. There is no justification for not dealing with this legislation today. If the Premier gets up and says, 'We want this to be delayed because we need the Tasmanian Law Reform Institute to have a look at it', I point him to the Law Reform Institute's statement which is very clear. They cannot and will not examine this issue under the terms of reference until the legislation is enacted. If people on the Government side of the House are concerned then they should be very keen to see this legislation enacted so that the Tasmanian Law Reform Institute can examine it. This House has the responsibility here today to deal with this amendment bill.

I am just going to put some statistics out there to focus people's minds on why it is so important. The American College of Paediatrics has undertaken a study on the risk of suicide and self-harm for transgender people and it found that for transgender men, 50 per cent reported having attempted suicide in their teens. For transgender women, the statistics sit at around 30 per cent of transgender women attempting suicide or self-harm in their teens. When you look at the statistics for non-transgender people, for women it sits at 17.8 per cent and for men under 10 per cent. This is a fact we need to deal with. Delaying debate on this legislation is harmful. It has been months now and we have had the kind of language coming out of organisations like Women Speak Tasmania and the alleged Coalition for Kids seeking to throw in red herrings and stall debate on this legislation so that they can whip up fear and loathing in our community.

If the Premier gets up and talks about the Attorney-General's concerns relating to the Solicitor-General's advice, advice that she waived privilege on but will not make public, that Solicitor-General's advice was clearly made in the absence of knowledge about the amendments that the upper House delivered that dealt with those concerns. All the concerns the Attorney-General has raised as part of an extremely damaging and hysterical response to this amendment bill have been dealt with by the upper House in the amendments.

If people are concerned about the legislation that left this place, I urge them to read in detail the upper House's amendments. It is important to understand that those amendments were drafted by the Office of Parliamentary Counsel. At this stage this parliament does not have access the Office of Parliamentary Counsel and we delivered those amendments in this place in good faith. However, it is hard to argue if you have concerns about the robustness of the legislation that the upper House has not made significant improvements to the language of the amendments. Some of us will have concerns with some of the amendments potentially, but it is a robust bill and once it is enacted transgender Tasmanians will have the right under law to be who they are. Small 'l' Liberals on the government side should hang their heads in shame. This is core, small 'l' Liberal policy - individual human rights, the right of people just to be who they are.

Madam Speaker, the House must deal with this legislation today. It must deal with it forthwith and it is on that basis that we support the shadow attorney-general's amendment.

 

Mr FERGUSON (Bass - Leader of Government Business) - Madam Speaker, it is obvious what is happening here this morning. I have to say that the shadow attorney-general leaping to her feet on this matter is an improper use of this House. It is not appropriate.

Members interjecting.

 

Mr FERGUSON - I would like to be heard.

 

Ms O'Connor - Rubbish - standing order 224.

 

Madam SPEAKER - It is my understanding that standing order 224 does allow for this.

 

Mr FERGUSON - Madam Speaker, I seek only to be heard. The Government asserts this is not a proper use of this House at all. The amendment message has only just been received and it is extensive. Look at the detail. It shows the work the Legislative Council members saw fit to do to fix the mess that was created by members opposite, and that is what you were warned about.

 

Ms Haddad - Support the upper House amendments. Recognise their power of work and support their amendments.

 

Mr FERGUSON - If you could listen to a different perspective, please. The Attorney-General is not present today. Members opposite ought to reflect on that. This is the Attorney-General's bill, it has her name on it and it is important that she be here for the consideration of its amendments.

 

Members interjecting.

 

Mr FERGUSON - It is interesting how people will not allow others to be heard. Yesterday the Opposition did everything it could to prevent this message being received. That was very clear. The Government has important legislation to deal with this week. We started debate yesterday on our nation-leading PTSD legislation and we are keen to see it transmitted to the other place this week.

The Government needs time to look at the extensive range of amendments that have been put through and consider them, which is why this House should not hastily be ramming these amendments through without proper advice and consideration. The Attorney-General has said it is important that the TLRI inform this House before it rams through these amendments.

 

Ms O'CONNOR - Point of order, Madam Speaker. The Leader of Government Business is in denial of the reality that the TLRI cannot and will not look at this issue until the legislation is enacted.

 

Mr FERGUSON - That is not a point of order, that is a debating point.

 

Madam SPEAKER - Order. It is not a point of order but that is my understanding as well.

 

Mr FERGUSON - That is a debating point. At the moment, I am articulating a reason why you are wrong about what you are asserting.

We say that this is unseemly haste and an improper use of the House. While the standing orders may well allow this to occur, every Tasmanian will know that Labor and the Greens today intend to ram these changes through our parliament regardless of the impact it will have on the Tasmanian community.

The Attorney-General has been clear. This is a dog's breakfast. It has problems at law. The Attorney-General has indicated to Legislative Council members that she has advice from our Solicitor-General that indicates significant deep problems with these Labor-Greens amendments.

While there is no denying the significance in this issue, that should be a reason to not rush it through this House. It is clear, in the absence of the Attorney-General today - and nobody will argue her reasons for being unable to be here - this should not be rammed through this House on the power of numbers by Labor and the Greens in the full knowledge that there are deep problems with the Labor and Greens amendments. Even with the ones that have been fixed up, there are deep problems with the Labor-Greens amendments, even those that have been fixed. There are still problems and you have been told. Be it on your head. We have indicated that if Labor and the Greens combine and ram this legislation through today, you are doing so knowing there are deep problems with this legislation and it is a creation of your own making.

 

Mr O'BYRNE (Franklin) - Madam Speaker, the member started his contribution by saying it is obvious what is happening here. It is obvious what is happening here. What is happening has been obvious for the last six to nine months. You are promoting hate in our community. You are promoting division in our community. You are promoting misinformation and intolerance. If we talk about the improper use of the House and the forms of the House, you have used every trick -

 

Ms O'Connor - Dirty trick.

 

Mr O'BYRNE - There are a couple of other words that spring to mind. You have used every attempt to deny the will of the both Houses to see this bill work through the process, to debate it, amend it, have it considered and have it put through via the formalisation of parliamentary process. You have used every trick inside this House, through your press conferences, your media releases and your contributions on some radio stations, you have promoted misinformation, division and disunity in this community and you should hang your head in shame. What is going on here is obvious and it is absolutely disgraceful.

Initially, you said it was not within the standing orders. It is within standing order 224 to deal with this. Both Houses have debated this matter at length. The committee process upstairs and the briefings, the amendments, the long hours of debate in the upper House, who have worked through the issues you say have been raised and are a fatal flaw within the legislation. Those matters have been resolved.

Those matters have been considered in the upper House. You are being disrespectful of this House, the process of this House and the extensive work of the upper House. If you had any heart, you would listen to the heartfelt contributions of members of our community and the members of the upper House, who are not aligned with the Labor Party and are genuinely independent members of the upper House, trying to resolve a scar and a wound in our community by moving amendments to resolve this matter. It will not impact a range of members in the community one iota, but it will resolve a significant issue for a number of key members of our community. I ask the member who resumed his seat to read it and look into his heart. He regularly claims a Christian belief system. We hold this as well.

Mr Barnett - Go on, put it on.

 

Madam SPEAKER - Order.

 

Mr O'BYRNE - I did not hear that. I am not. It is a belief system and it is about caring. It is about loving and it is about reducing people's trauma. This debate is crucial. This debate goes to the heart of people in our community and how they can live their lives free of discrimination, free of intimidation and make some decisions.

 

Mr Ferguson - You are a grub. You are being very grubby.

 

Mr O'BYRNE - I am a grub, am I? I take offence to that, Madam Speaker.

 

Madam SPEAKER - I take offence on your behalf, thank you.

 

Mr Ferguson - I withdraw. I say it is very grubby.

 

Mr O'BYRNE - Madam Speaker, that is disingenuous.

 

Madam SPEAKER - He did withdraw it. I ask the minister to refrain from that kind of commentary. It is not helpful.

 

Mr O'BYRNE - Madam Speaker, this matter needs to be debated forthwith. It is a matter that has been considered and extensively debated in both Houses of parliament. It is important to those impacted by this legislation that this House deal with it today to resolve it, setting us on a path to remove a significant issue for members of our community. I urge you to consider these arguments and allow us to finalise the debate in this matter.

 

Dr WOODRUFF (Franklin) - Madam Speaker, the case has been amply made for urgency in dealing with this bill. It has been something that the Liberals, the minister, has done everything possible to push aside, to degrade the people who have spent years, more than a decade, trying to make this incredibly tiny change that will mean absolutely -

 

Mr BARNETT - Point of order, Madam Speaker. On behalf of the Attorney-General, that is absolutely unparliamentary making such an allegation, the attempt to be degrading. The Attorney-General has never been in that position and expressed that view. I ask her to withdraw that allegation which was defamatory.

 

Madam SPEAKER - I do not believe that is a point of order. I am going to let Dr Woodruff proceed.

 

Dr WOODRUFF - Thank you, Madam Speaker, because I did not make any allegation. I just stated the facts.

This minister has done everything she can to hold back the tide of respect and recognition that this bill will bring in. This is a bill which has been fought for by people who will have every impact on their daily life. Every impact on the life of their children and the life of their loved ones. Just listen to the statistics Ms O'Connor mentioned. Look into your own hearts and imagine why 50 per cent of trans men commit suicide, attempt to commit suicide. That is just the most appalling figure. Look into our hearts. How can we stand here after Christchurch, the condolence motions that we made? The conversations that we have had in this place since then about language, about the importance of leadership of all people in parliament to bring people together, to heal wounds, to reach across divisions instead of opening them even further for short term aims.

Think about how we can build our community, build a stronger Tasmania, a community where people share difference, respect difference, where people feel part of a community and included rather than pilloried, denigrated, made to feel different, made to have operations they do not want to have in order to just simply be able to say who they are and to be legally recognised for that.

This is a bill which must be dealt with today because people's lives have been held up for years, for decades, and every single day matters so much to them. This is something which is the business of parliament. It has been given so much attention by members' angst over words and the details for months now and the Office of Parliamentary Counsel has done everything to find the words that will satisfy members of both places.

Here is it before us today. It is our job, it is our duty, to dispatch this debate today and get it done.

 

Question - That the amendment be agreed to - put.

The House divided -

AYES 11 NOES 11

 

Madam SPEAKER - The result of the division is 11 Ayes and 11 Noes. In accordance with Standing Order 167 I have a casting vote. In order to give this legislation the most rigorous debate I cast my vote with the Ayes.

 

Amendment agreed to.

 

Question - That the motion, as amended, be agreed to.

The House divided -

AYES 11 NOES 11

 

Madam SPEAKER - The result of the division is 11 Ayes and 11 Noes. In accordance with Standing Order 167 I therefore have a casting vote. I cast my vote with the Ayes.

 

Motion, as amended, agreed to.

 

Justice And Related Legislation (Marriage Amendments) Bill 2018 (No. 47)

In Committee

 

Council amendments to clause 1 be disagreed -

 

Mr HODGMAN - I will speak broadly to the legislation before us in the hope of avoiding the need to repeat myself on each clause. However, I will be speaking to specific provisions and the Government's view in relation to those. It is appropriate for me to inform the House of our opposition to this legislation, which we consider to be flawed in its operation and its impact on other statutes. It has not undergone adequate consultation with stakeholders or with the community. The Legislative Council has completely changed the bill introduced by Labor and the Greens that they wanted to have parliament pass swiftly, which shows how badly it was drafted in the first instance.

 

Ms O'Connor - You might take this opportunity to commit to giving us access to Parliamentary Counsel.

 

Mr CHAIRMAN - Order.

 

Mr HODGMAN - Without a full legal review, we consider it to be a subversion of good lawmaking. It is an important responsibility for any government to ensure the laws that pass through this place are good -

 

Ms O'Connor - The majority of members in both Houses, are you accusing them of subversion?

 

Mr CHAIRMAN - Order, Ms O'Connor.

 

Mr HODGMAN - and not to have legislation rushed through to the Legislative Council. We now have a complete re-write of that initial body of legislation. It is entirely unrecognisable from what was first before this House. We will be voting against the bill, as we did in the House of Assembly last year and in the Legislative Council last week. Our position remains that these matters should go through full legal review before being passed by parliament. That is why we have referred the matter to the Tasmanian Law Reform Institute.

 

Ms O'Connor - They cannot look at it until it is enacted.

 

Mr CHAIRMAN - Order, Ms O'Connor. I officially warn you for the first time for constantly interjecting. That is three times you have interjected on the Premier.

 

Mr HODGMAN - I want to bring to the members' attention a statement from the Tasmanian Law Reform Institute in relation to the reforms before us and the reference before them. It says -

Preliminary work on this reference has commenced and will continue regardless of the status of the Justice and Related Legislation (Marriage Amendments) Bill 2018.

 

Ms Haddad - Keep reading until the end.

 

Mr HODGMAN - I will read the whole thing out -

This means that the work of the TLRI should not defer consideration of the bill by the Legislative Council. Their research will incorporate consideration of the terms of any bill passed into law.

It goes on.

 

Ms Haddad - They won't consider it until it is passed into law - that's what it says.

 

Mr HODGMAN - The Law Reform Institute is perfectly placed in our view to provide the full legal review that has been expected by this parliament -

Ms Haddad - After it is passed.

 

Mr CHAIRMAN - Order.

 

Mr HODGMAN - It is proposed by members of this House that this be rushed through in contravention of legal advice we have received and which has been the subject of this debate and is not to be dismissed lightly. Legal stakeholders including the Solicitor-General and the President of the Tasmanian Bar Association have raised serious concerns, pointing out there has been no opportunity to undertake a full review of what is being proposed and how it impacts on other statutes. In our view it is entirely negligent and irresponsible for Labor and the Greens to seek to enact a bill that may cause legal uncertainty for Tasmanians.

The fact that the term 'gender' is not included in the short title of the bill demonstrates how far outside the scope both the House of Assembly and proposed Legislative Council amendments are. I acknowledge the efforts of the Legislative Council to try to fix clauses inserted by Labor and the Greens into the bill but the Government certainly does not support the inclusion of the clauses in this bill, certainly not the Government's original bill.

Given the lack of consideration by Labor and the Greens to the legal ramifications to the current legislation, which are significant, it is highly likely in my view that parliament will need to reconsider and likely fix up problems with the legislation at a later date. We will take further advice on that. We will certainly not rule out repealing the Labor and Greens amendments in part or in full. It would be irresponsible of any government not to look at the effects of these amendments.

Mr Chairman, I move –

That the amendment to clause 1 not be agreed to.

 

Ms HADDAD - Labor will be supporting this first amendment as presented from the upper House. I will reflect on some of the comments the Premier made in his opening remarks. He said that the original bill was badly drafted, the original amendments in this place were badly drafted, and there has been no consultation. That is simply not the case. There has been extensive consultation over many years and decades on these issues. There was a report in 2016 that garnered several community consultation submissions. The amendments themselves were brought to the Government by advocates in the community months before they were brought to opposition parties.

There was a lengthy debate in the lower House and in the upper House and there has been excruciatingly long, for some people, public debate ever since then, with every member of parliament receiving multiple representations from members of our community on their views, varied that they are, on the amendments proposed here in the lower House and the amendments proposed in the upper House.

It is interesting that the Premier indicated he appreciated the work of the upper House. The Leader for Government Business in the upper House said the same last week. I sat through that debate in their Chamber and she commended the independent members of the upper House for their power of work with the access to offers of Parliamentary Counsel to, in the Government's words, 'fix' the amendments that were passed in this place. Whether that is how you characterise the work of the upper House or not, they did a power of work that should be recognised and appreciated in this place.

The changes the upper House made make this legislation that will protect the rights of transgender people. It makes very simple changes and there has been such an enormous scare campaign that the Government has not only done nothing to dampen but has fuelled the flames of that scare campaign across Tasmania. Even this week, members of the Government have misrepresented the changes made in the upper House and misrepresented details of the bill that were debated as it was in the upper House.

As for consultation, the Law Reform Institute does have a reference in front of them; that is true. The Premier selectively read from that letter - an unprecedented step, I might add, because the Law Reform Commission said that they do not usually release terms of reference and speak about references before they commence that work. What they go on to say that the Premier conveniently did not read into the Hansard is that in accordance with law reform practice, they will not comment on bills before parliament or any related amendments, which means they will not comment on the Justice and Related Legislation (Marriage Amendments) Bill 2018 or any related amendments until a final form of the bill is enacted. That is what the Law Reform Institute said.

The preliminary work on the reference has commenced and will continue regardless of the status but their research will not continue until there is a bill passed into law. This means that the work of the Law Reform Institute should not defer the consideration of the bill by the Legislative Council. Their research will incorporate consideration on the terms of the bill when passed into law. They may have a reference in front of them but it is a furphy for the Government to say that this legislation and these amendments can wait until they have received a report in September from the Law Reform Institute because that report will not be completed until a bill is enacted into law, and that is the next step for these amendments.

 

Ms O'CONNOR - Mr Chairman, we are debating the first amendment which alters the short title of the bill to reflect the inclusion of matters relating to gender. Of course we support this amendment. I want to challenge something the Premier said in his contribution. It is quite clear to me that the Premier is not across the amendments and changes that were made to the amendments by the upper House. He has also demonstrated total disrespect for upper House members and of course - but we are used to it - Labor and Greens members in this place by accusing upper House members of subverting good legislative process.

Mr Hodgman - No.

 

Ms O'CONNOR - That is what you said - 'a subversion of good law-making' was exactly -

 

Mr Hodgman - By you, Labor and the Greens -

 

Ms O'CONNOR - You can try that, Premier, but you are in denial.

 

Mr Hodgman - Greens members upstairs, if there are any.

 

Mr CHAIRMAN - Order.

 

Ms O'CONNOR - Regrettably, there are no Greens members upstairs, and I remind you of the vote, Premier, which was eight for the amendments and six against the amendments. There are four Labor members upstairs and that is irrelevant. A majority of members in the upper House, having thoroughly examined and tested the amendments and having met with the Office of Parliamentary Counsel at a meeting which I understand they were told they could not take notes at, have backed these amendments after a full summer of examining the bill that we sent upstairs. That is not a subversion of good law-making, that, Chair, is good law-making.

The Premier says that his Government wants proper process and expert advice. Well, the summary of the Solicitor-General's concerns was only given to upper House members a day before debate on the bill was due to start. Chair, that is not good process, that is an ambush, and we have seen this from the Attorney-General and other Government members. You can read it in the debate in the other place. There has been constant subversion of the facts and constant willingness to play politics with this issue regardless of the human collateral damage.

Of course we will support this amendment and every amendment the upper House has delivered to this place. Those amendments reflect the will of this House, yet they have been through Parliamentary Counsel. This is robustly drafted, tested and passed legislation in the upper House, Chair, and our concern remains that we just heard a threat from the Premier to potentially repeal this legislation. You people need to get over the fact that you are not in control of this House, you do not own this parliament. It is the will of the parliament that we reform the Births, Deaths and Marriages Act, the Anti-Discrimination Act and those other parcels of legislation in a manner that is in the legislation before us today, the amendment bill.

Premier, I am sure that you would rather not be sitting there defending your Government's odious position on this legislation. I feel that you are uncomfortable. I am certain that you are not across the amendments. I am certain of it because of the contribution that you just made. If you want us to take you seriously on legal concerns, table the Solicitor-General's advice. Privilege has already been waived on that advice. Let us remember that that advice which was dumped on the Legislative Council the day before the debate was due to start was advice that was given before the Legislative Council had debated the amendments.

 

Ms Haddad - It was not given on the Legislative Council's amendments at all. It was in terms of the original amendments.

 

Ms O'CONNOR - That is right. Thank you, Ms Haddad. That advice, it needs to be understood, is outdated. It is a redundant piece of advice but it would be good for the House to see it, seeing as Government members and the Premier keep referring to it. If you are going waive privilege table the advice. Otherwise what you are putting on the Table here is a big, fat, stinking red herring and really, Premier, you should be ashamed of the comments that have come out of the Attorney-General throughout the course of this debate. The willingness to throw up furphies, to give voice to those awful organisations like Women Speak Tasmania and the alleged Coalition for Kids -

 

Mr Ferguson - Oh, gracious. Really. You have just called them out as awful, these Tasmanian people.

 

Ms O'CONNOR - Awful. I stand by that. I could have said a lot worse. I could have told you what I really think of them, Mr Ferguson, but I chose not to.

What worries me, Mr Ferguson, is that when members of our transgender community read the kind of garbage that your Attorney-General put out on Government media release letterhead, it hurts them. When organisations like Women Speak Tasmania, who clearly do not understand transgender issues, put out the kind of rubbish that they are, it hurts people. When self-appointed experts who call themselves the Coalition for Kids - yet it turns out that the lead spokesperson is from the Catholic Church - when they come out and lecture us on the wellbeing of children, frankly I want to vomit.

We will be supporting this amendment. We will be supporting every amendment that the upper House has delivered to this place. We know that when today is over and the law has changed, people who have been stigmatised and discriminated against under Tasmanian law since forever will breathe out and breathe a sigh of relief. They will know that a majority of members in both Houses of the Tasmanian Parliament support their right to be who they are under the law, not to face obstacles in the law. Part of the reason that this debate has become so difficult is because, in fact, Tasmanian law really does not recognise transgender people other than in the Anti-Discrimination Act 1998. That is part of the reason this has become so complicated. That is a challenge for law makers but it starts here and it starts today.

 

Mr CHAIRMAN - The question is that the amendment be disagreed to.

The Committee divided -

AYES 10 NOES 12

Council amendments to clause 1 agreed to.

 

Council amendment to clause 2 -

Mr HODGMAN - Mr Chairman, I move -

That the Council amendment to clause 2 be agreed to.

We are supporting this based on advice provided by the Registrar that at least four months is required for systems upgrades.

 

Ms O'CONNOR - Chair, this is the amendment which inserts a new clause A to replace the clause to enable time for the transition arrangements required by the Registrar to be facilitated. This is an improvement to the legislation and acknowledges that it will take some time for the transition to be in place with the Registrar. I need to understand what the Premier said then. Is there new advice from the Registrar that this is not enough time? We certainly have not been privy to that advice. I do not believe it was made available to the upper House. We will be supporting this amendment as delivered to this place by the Legislative Council.

 

Ms HADDAD - Labor supported this amendment in the upper House and we will be supporting it here. It was an amendment moved by the member for Murchison, Ruth Forrest, which allows for a later commencement date for amendments to be dealt with later.

Council amendment to clause 2 agreed to.

Council amendments to clause 6 -

First amendment -

Mr HODGMAN - Mr Chairman, I move -

That the first Council amendment to clause 6 be agreed to.

I advise that with respect to the first amendment to clause 6, the Government, as we did in the Legislative Council, will support it, as we will the second.

 

Ms HADDAD - This was an amendment moved by the member for Launceston. It is an example of some of the community consultation that has been undertaken on this bill by every member of parliament. Many members of parliament received correspondence from members of our electorate who were concerned with the Government's move in the original bill as dealt with in this place, which was to make the legislation gender-neutral.

I acknowledge it is parliamentary drafting practice spreading around the world that legislation should, where possible, be gender-neutral, and I agree with that premise. Labor supported this in the upper House in recognition that this has been one of the concerns raised by members of the community. Albeit that I agree that legislation, where possible, should be gender-neutral, it is an opportunity for us to reflect on the fact that not just this but the bulk of the amendments that were moved by the upper House were done so after considerable consideration of the bill and the amendments moved downstairs and community consultation.

Ms O'CONNOR - I agree with the contribution made by Ms Haddad. The reason the Premier is comfortable in supporting this amendment is because it is a significant improvement on the amendment the Government had included originally in the bill, which was to leave out the words 'a parent or guardian' and insert the words 'the father, the mother, or parent or guardian'. This should allay some fears in the community about a false perception that parliament was trying to do away with motherhood and fatherhood and trying to eradicate gender. This is a substantially improved amendment that has come down after rigorous testing in the upper House, together with the other amendments.

Amendment agreed to.

 

Second amendment -

Mr HODGMAN - Mr Chairman, I move –

That the second amendment to clause 6 be agreed to.

Amendment agreed to.

Council amendments to clause 6 agreed to.

 

Council amendment to clause 7 -

Mr HODGMAN - Mr Chairman, I move -

That the amendment to clause 7 be agreed to.

Amendment agreed to.

Council amendment to clause 7 agreed to.

 

Council amendments to clause 13 –

First amendment -

Mr HODGMAN - Mr Chairman, I move -

That the first amendment to clause 13 be disagreed.

The Government remains concerned that the definition of gender declaration only requires a person to identify what gender they personally identify as at the time of the declaration. It does not require any intention to permanently live as the changed gender and there are no limits on the number of times a person can change gender.

 

Ms HADDAD - Labor will be supporting this amendment. My gosh, I hope the Premier's tongue stuck in his mouth a little when saying those things just now. I am lost for words, which does not often happen to me. I will reiterate what I said about the power of work done by members of the upper House. This amendment was moved by the member for Murchison and was respected in the upper House by the Leader for Government Business there as having significantly improved on the attempts downstairs. The member for Clark has outlined the fact that because we do not have access to the Office of Parliamentary Counsel in the lower House, the intent of those amendments we made in the lower House are still being met by the amendments moved by the member for Murchison.

I do not know what kind of world the Premier is imagining that we might live in and transgender people might live in. Right now, there are requirements for somebody to have a simple change made on their birth certificate to have their gender marker changed from one to another, not on the Register of Births, Deaths and Marriages, not on government records. All of that information would continue to be kept and recorded, but it is simply so that the piece of paper you walk away with from Service Tasmania reflects the true gender that you are. Right now, there are onerous requirements for those people to go through in our legislation - to be divorced if married and have invasive, life-altering, dangerous, often unneeded and unwanted surgery. I spoke on that in my second reading contribution when we debated this last year. I am appalled anyone would think politicians should have the say in whether somebody undergoes invasive physical surgery. If I were to undergo invasive physical surgery of any kind, with respect to all colleagues, it would not be you I would be asking for advice, or to check the statute books for permission for what surgery I might require. I would be talking to my doctor about that, to medical professionals, to my family and loved ones about such a thing.

The Premier said that the Government is not supporting this amendment from the upper House because it does not require people to intend to live as the other gender. How would somebody demonstrate that to your satisfaction? I am not wearing a skirt today. Does that mean that I do not intend to live as the gender I express myself as? How would somebody meet that bar, 'intend to live'?

As for changing willy-nilly, it is offensive to imagine anybody would be so calculating as to change their gender on their birth certificates daily. Is your purpose to prove some kind of bizarre bureaucratic point? An amendment to outlaw that practice is to be considered in this package of amendments. It was moved by the member for Windermere, Mr Dean. If accepted, and I hope the Government will accept Mr Dean's amendment when we come to it later in this package of amendments, it would allay the fears in the community that any such behaviour could be entered into by a transgender person or anybody else in the community. They would not be able to do so. As the Premier expressed, some Government members may be concerned that people would change their gender day on day. This would not be possible if the bulk of these amendments and this specific amendment from the member for Windermere are accepted.

 

Ms O'CONNOR - I am glad I asked the Premier to clarify why he does not want this amendment agreed to. It exposes the Premier and his alleged Liberal values. Premier, you are feeding into the myth and the narrative that transgender people will treat transitioning and living within their true identity as trivial, that this will be something people want to do once a week because transitioning is so much fun. It is not. I do not believe the Premier has spoken to enough transgender people about their lived experience of claiming their identity, being respected for their identity and the lived experience of coming up against the barriers in law to having their true identity recognised by the law and by society. There is nothing fun, enjoyable or easy about transitioning for a transgender person. This is the clause in the legislation dealing with this in part; the requirement for a transgender person to undergo invasive surgery before they can have their birth certificate changed.

I resist talking about personal issues in this place but I will talk about my kid for a minute. Jasper is Jasper. Jasper is a 20-year-old young man, but every single official document he has misnames him: his bank account, tax file number and his student card. Every time he and other transgender people, who cannot have their birth certificate changed because of the sexual reassignment provisions, apply for jobs or any other element of officialdom where formal identity documents are required; they have to out themselves. My child's name is not Mara. Every piece of official documentation lies about my child's name. Right now, the law says to my child, 'You have to have a hysterectomy before we recognise who you are'. That is garbage and we need to fix this. We support the amendment.

 

Question - That the amendment be disagreed.

The Committee divided -

AYES 10 NOES 12

Amendment agreed to.

 

Second amendment -

Mr HODGMAN - Mr Chairman, I move -

The second amendment to clause 13 be disagreed.

The Committee divided -

Amendment agreed to.

Council amendments to clause 13 agreed to.

 

Council amendment to clause 14 -

Mr HODGMAN - Mr Chairman, I move -

That the Council amendments to clause 14 be agreed to.

Amendment agreed to.

 

Council amendments to clause 15 -

Mr HODGMAN - Mr Chairman, I move -

That the Council amendments to clause 15 be disagreed.

 

Ms HADDAD - Speaking on the change that the Legislative Council made to clause 15 which is to leave out the word 'gender' and instead insert the word 'sex' into proposed clause 15 as debated by the upper House.

It makes sense for my comments to relate to this clause change and also to the previous one agreed to by the Chamber to leave out clause 14.

What these two changes do is deal with how births are notified by hospitals at the time of birth. The reason it is important to point out some of the reasons the member for Murchison moved these two amendments is that they go to the very heart of some of the scare campaign that has been allowed to play out in Tasmania and around the country over the last several months. Part of that scare campaign that we heard from several organisations and the embers of which were stoked constantly by members of the Government, was that we were erasing gender from Tasmania. Everybody has heard those claims in the community or read newspaper articles by extreme conservative journalists who have claimed that what the attempted amendments in the lower House did were effectively to remove gender from Tasmania. How ludicrous.

It was hard for me as a new politician to hear but it was a lot harder for the transgender people and gender diverse people in Tasmania and around Australia to hear that, and who were asking, why is this Parliament choosing to play games with our lives? Why is the Tasmanian community choosing to play games with what is actually an extremely serious health issue for transgender and gender diverse people?

What these two changes moved in the upper House do, the removal of clause 14 and the amendment to clause 15, will make it extremely clear that upon birth there are two things that happen within quick succession. One is the hospital must notify the government within 21 days that a baby has been born. That has to happen, thanks to the amendment from the upper House. That is the current law and that will stay as it is: within 21 days for a live birth, and within 48 hours of a stillbirth. The hospital must notify the government that a child has been born and they must notify the government whether that child is male or female. No other options are available to the hospital other than to notify the government that it is a live birth within 21 days, or a stillborn baby within 48 hours; a baby has been born either male or female.

The amendment to clause 15 recognises that at birth, it is sex that is being registered by the government. It is notified by the hospital that a live birth has occurred, the baby was a boy, put that on the register please, and that is what will occur. It is sex that is registered at birth. That goes to the heart of why the remainder of these changes are so important today. It is sex that is noticed at birth. To put it crudely as the member for Murchison explained, in her experience as a midwife, basically we have a look between the legs and say 'this one is a girl, this one is a boy'. That is what will be notified by the hospital to government. That is what will be registered and recorded and kept in government records.

Gender on the other hand is something that might be wrong. It might not correlate with what is noticed at birth and what is put onto the register. Gender is more complicated than that. There are not only two genders and that is why the remainder of the changes in this package of amendments from the upper House that we will go on to debate, are important to recognise. The fact that when somebody's sex is assigned at birth and does not correlate to the gender that they later seek to live, and that the law in Tasmania will protect them, protect them from discrimination and the kinds of administrative pain we have heard the member for Clark explain of having a series of documents that simply do not reflect who you are.

 

Ms O'CONNOR - Mr Chairman, the Greens will support this amendment which changes 'gender' to 'sex' as it is the sex of the baby that is recorded at birth. For the benefit of the Premier and some of his colleagues who do not understand the distinction between sex and gender, our office has put together some information I am happy to share with the Premier. I will put some of it on the record now.

There is a distinction between sex and gender. If there were not, there would be no need for two distinct words. It is important to remember that both sex and gender are human-defined terms and, while they may have a basis in observable traits, it does not mean that either are naturally defined terms. A mismatch between apparent sex and how a person identifies is a real phenomenon. It is a very strong drive causing gender dysphoria, in some a condition that is recognised by all significant psychological bodies. It is not simply a vague feeling. There is also some debate over even the use of the term 'dysphoria', because dysphoria medicalises a fact and dysphoria seems to indicate that there is something wrong with the person and that is not the case.

Institutions such as the Australian Psychological Society and medical publications such as the Diagnostic and Statistical Manual of Mental Disorders base their position on the research and evidence, not activism. The idea that these organisations are incorrect about the distinction between sex and gender is not supported by evidence. In fact, the only basis for the idea that gender and sex are not different comes from an individual's own strong belief that they are not different, which is ironically the exact motion opponents are trying to discredit as meaningless.

This is a significant change. It should allay some of the fears that were expressed in quite hysterical terms by the Attorney-General and others in the community about the gathering of statistical data that relates to births in Tasmania. This is a straightforward amendment. I hope that the Government, the Premier, does not call a division on it. There should not be an argument about this particular clause.

 

Question - That the amendment be disagreed.

The Committee divided -

Council amendments to clause 15 agreed to.

 

Council amendment to clause 16 -

Mr HODGMAN - Mr Chairman, I move -

That the amendment to clause 16 be disagreed.

 

Ms O'Connor - Why?

 

Mr HODGMAN - We don't support it.

 

Ms HADDAD - I am genuinely asking this question, there is no politicking here. I would like to know the Premier's reasons for not supporting this change and I hope he will outline them. This one was moved by the member for Murchison. It was a pretty hard one to follow in some ways but we are supporting it here. What this amendment does is make the recording of sex mandatory by the Registrar of Births, Deaths and Marriages. The current legislation is silent on whether the Registrar must record that information. Under the Tasmanian legislation as it stands right now, the only thing that the Registrar is required to record is a name.

There was a lot of discussion around this in the community and in the parliament. The member for Murchison did a lot of work, but in particular on this very clause we are debating right now she did an enormous amount of work consulting on this. It was not an easy process for her. There was a lot of unease in some parts about this change.

What this change now does, if it is accepted, is to make it a requirement by law that the Registrar of Births, Deaths and Marriages will record sex on the register and will keep that information on the register. Right now it is recorded and kept by government in a range of different ways, but this will be a first in Tasmania's history. There are several other jurisdictions that do not make it a legal requirement that sex is recorded at birth. This will change under this amendment.

I am genuinely interested in the Premier's views on that and I say that in good faith. I would like to know the Premier's reasons, and hope that they are heartfelt ones, about why it would be better for the Registrar not to record sex on the register.

 

Mr HODGMAN - This is another example of something that was certainly not in the Government's original bill for a start and not a matter that has been, in our view, properly considered. The advice that we have received is that this clause does remove the power for a person to change their sex and allows only for a person to change their gender. As a result of this clause, if an individual has sexual reassignment surgery, they will not be able to change their sex.

 

Ms O'CONNOR - I am having trouble believing right now that you are concerned about the rights of transgender people to change their identity documents given the palaver on this bill.

This amendment replaces the existing amendment that was sent upstairs that allows information about sex or gender to be collected under section 50 by the Registrar with amendments that require the Registrar to register the sex of the baby as either male or female.

I share Ms Haddad's relative discomfort about boxing human beings into that binary construct but acknowledge that this is a mandatory provision that will require the Registrar of Births, Deaths and Marriages to register a person's sex as either male or female at birth.

This clause ensures the Registrar has the statutory power to correct errors made in determining the sex of the baby and prevents future changes of registered sex, instead allowing the amendments in clause 21. It also enables the subsequent registration of a gender or a change of gender. Any registered change of sex made before this bill comes into effect remains valid as the registered sex of the person.

I continue briefly with some education materials, information for the Premier on the difference between sex and gender. The reason I express a concern about the Registrar recording sex as male or female is that there is a whole lot of medical evidence that it is more complicated than that but this is an improvement on the current situation. We are looking at this in the context of the bill in its entirety.

Whether a person has a penis or a vagina is not the sole factor in sex. Genitalia are primary sex characteristics, characteristics presenting at birth and characteristics such as breasts in female are secondary sex characteristics which develop during puberty. This has been a long-standing conceptualisation of sex characteristics.

We are not conceived with an immutable blueprint of our adult form. Genes guide our development, most of which is enacted at various stages between conception and the end of puberty. At six weeks, in utero, the gonads in a foetus become either ovaries or testes which will secrete either oestrogen or testosterone, typically causing one of the potential sex organs to wither away and the other to develop. Much can happen both before, during and after this development which can lead to inconsistent or unexpected presentations of sex characteristics.

People can be born intersex, neither clearly male nor female. Sex is not so much determined at conception but rather by a range of characteristics, some of which are developed in the womb and some of which develop during puberty. Sex chromosomes are not an absolute measure of sex. They are one factor that guides development of sex characteristics.

Based on available data, about one in 100 people develop in a way that presents observable, physical characteristics that are contrary to what would be expected from their primary sex chromosome. I say primary sex chromosome because not all people have only one sex chromosome. Microchimaerism means that it is unlikely that any males are completely devoid of female sex chromosomes and this number could be higher as many people go through life unaware of these variations. For example, a womb was discovered in a father of four children, which was only discovered at the age of 70 when he was undergoing a hernia operation. Human beings are complicated and miraculous. People who the law currently does not adequately, in fact, barely recognises in Tasmania, their unique, miraculous being must be recognised by the law and their rights to that individual identity must be recognised and protected. That is what parliament is seeking to do today for transgender and gender diverse people.

 

Dr WOODRUFF - I also wanted to encourage the Premier to provide a bit more background to parliament about the reasons for not supporting this particular amendment. I do not think that I understand the basis for why you would not agree with this amendment. It is actually, from where I sit, a lot harder to support this amendment because we have come to a place of understanding through working on this bill, about the complexity of human existence.

This has challenged me to look past the statistics and abnormalities and to stop treating this as an academic exercise about this kind of chromosomes, genetics and hormones and understand that for all of those different categories of obscure and wonderful variation in human existence there is an individual life behind that statistic. The individual life that we are talking about that we care about is an individual Tasmanian life. Those people Ms O'Connor quoted a statistic of about one in 100 people who are believed to be born with variations such that they would be neither male nor female in the strict term that we have come to understand that definition. Another statistic I have heard is that it is actually more like one in 52. One in 52, I understand, is about as common as redheads.

If we reflect on that and think about the fact that the more we understand because of science, because of genetics, because of all of the tests that are available, DNA testing, we have access to information we have never had as a human race. A lot of research in this area has been done around the Olympics. It has been done around elite sport where a huge amount of money and research has gone into determining this very question: how can you tell if a person is a male or a female? Which box do we let them fit into for elite athlete sport? Which box do we allow them to fit into so that they can stand on the podium and be the best woman javelin thrower or the best male javelin thrower? What we have come to understand to the surprise, and probably the sorrow and the grief of many of those individual people, is that they have travelled through their life being put into a box only to have revealed to them by the Olympic committee, or some other body, that they are not actually who they thought they were.

The case I heard yesterday was of an Indian woman who comes from a poor village in India and through dint of her own tenacity and strength of character made it to the Olympics only to find through some testing regime that she has a particular chromosomal difference, so that she is not technically - according to where the Olympics have got to on this very complicated issue - considered to be a woman. What a shocking thing to come to terms with in that environment.

This bill is not really about all of that stuff, that is academic stuff. This is actually about people's lives and for the people this bill will make a difference to it is not an academic issue. They know they do not fit into the binary box. Some have known it from the very day that they have memories. There have been beautiful documentaries done, Australian and overseas documentaries, about children who knew well before they were able to talk to their parents that they just did not fit in their skin. Then they grew up and were able to take control of their life and decide for themselves. This is core. This is about recognition, recognition from your parents, recognition from your school and from your community that you are who you feel you are.

We can go through chromosomal testing and genetic testing and hormonal testing but what it comes down to is where a person is in themselves in their lives and their right to be recognised as who they know they are. It is our job to pass this bill today as efficiently and expeditiously as possible because it will make so much difference to the lives of Tasmania. I encourage the Premier to make a strong statement so we can understand why he does not support the amendments that have been made in the upper House, and this is one of them.

 

Question - That the amendment be disagreed.

The Committee divided -

AYES 10 NOES 12

Amendment agreed to.

 

Council amendment to clause 18 -

Mr HODGMAN - Mr Chairman, I move -

That the amendment to clause 18 be disagreed.

This lowers the age at which a person can independently apply to change their name from 18 years or older to 16 years or older. It was certainly not the Government's position in the original bill and both the bill and these amendments lower the age at which a person can make that application. This is inconsistent with the law in other areas and indeed in relation to major decisions that one might make it is inconsistent with laws in other jurisdictions and has the potential to cause issues for existing data-matching rules. On that basis we do not support the inclusion of the clause in the bill.

 

Ms O'CONNOR - This amendment is a refinement of the language that was in the amendment that went from the House of Assembly to the Legislative Council. In fact it is grammatically better. I point out to the Premier that young people at the age of 16 are in a very good position to know who they are. It is Greens policy that young people, 16-year-olds, if they wish to, should be given the vote. It is extremely disappointing to hear the Premier suggest that 16-year-old transgender and gender-diverse people should not have the right to have their true gender reflected on their birth certificate and should have to go through unnecessary hoops in order to have that happen. We strongly support not only this amendment but the following one, which is consequential and almost identical.

 

Ms HADDAD - There was a really quite heart-wrenching debate in the upper House on this amendment where we heard some really eloquently put personal stories from transgender and gender-diverse Tasmanians about their lives and experiences of coming to the realisation that something was not quite right for themselves. It happens long before 16 and the idea that somebody would have to wait until adulthood to have their identity documents simply reprinted with information that reflects their true gender is really quite cruel.

For that reason we introduced this change in the lower House. The upper House amendment makes the language more consistent with Tasmanian parliamentary drafting styles and as we have heard a few times, we do not have access to the Office of Parliamentary Counsel, so through the OPC the member for Murchison corrected that language. We had the words '16 years or over' and she amended that to read 'who has attained the age of 16 years'. In effect, this amendment itself is a simple one changing language and the next one also does the same, and for that reason we will be supporting it.

 

Sitting suspended from 1 p.m. to 2.30 p.m.

 

Justice And Related Legislation (Marriage Amendments) Bill 2018 (No. 47)

In Committee

Resumed from above.

 

The Committee divided -

AYES 10 NOES 12

Council amendment to clause 18 agreed to.

 

Council amendment to clause 19 -

Mr HODGMAN - For the reasons articulated with respect to the last clause, Mr Chairman, I move -

That the Council amendment to clause 19 be disagreed.

 

Question - That the Council amendment to clause 19 be disagreed.

The Committee divided -

AYES 10 NOES 12

Council amendment to clause 19 agreed to.

 

Council amendment to clause 20 -

Mr HODGMAN - Mr Chairman, I move -

That the Council amendments to clause 20 be agreed to.

Council amendment to clause 20 agreed to.

 

Council amendment to clause 21 -

Mr HODGMAN - Mr Chairman, I move -

That the Council amendments to clause 21 be disagreed.

This is an entirely new part of the act. The Government has consistently made the point that the amendments have not been properly considered or consulted and presented a range of practical problems. The fact that there have been dozens of amendments and an entirely new part in this place demonstrates that is correct. It is clear there are uncertainties that still exist in the bill. As the Solicitor-General has said in his briefing to the Legislative Council, there are very real legal consequences and, while the amendments proposed seek to fix the problems, we need to be mindful that there were examples identified by the Solicitor-

General in his preliminary view.

A new section 28B also removes the best interests test so a magistrate no longer needs to be satisfied that it is in the child's best interests in order to approve the registration of a child's gender. This potentially allows one parent to change the gender of their child without the need to consider at all what is in the child's interests or the view of the other parent. The Commissioner for Children and Young People wrote in a letter to all members of the Legislative Council on 19 March 2019 that article 3 paragraph 1 of the Convention on the Rights of the Child gives the child the right to have his or her best interests assessed and taken into account as a primary consideration in all actions and decisions that concern them. The Commissioner has suggested that a best interests test should apply where there is an application to a magistrate to register a change of gender. Again, this was not in the Government's original bill because the Government does not support its inclusion via this clause of the bill.

 

Ms HADDAD - The Premier is right. This does, on paper, represent a new part of the act. In fact, most of the way that the lower House approached the changes that needed to happen to part 4A of the Births, Deaths and Marriages Act last year when the original amendments were considered in this place, it was logical in essence to re-write that section of the act as an amendment. Most of what exists right now in part 4A of the Births, Deaths and Marriages Act was replicated in the words of that amendment.

I will not go back over what the Premier said about this being unconsulted or not well-considered and that there are uncertainties remaining. I do not agree with those statements. There has been months of public consideration and public consultation on these changes.

There is one part I need to respond to in what the Premier said which is that the Solicitor-General expressed concerns. We know that the Attorney-General has waived privilege in regards to the Solicitor-General's advice but has not released his advice. I ask the Premier his views on whether he would release that advice. My understanding was that advice was given on the basis of the bill that was presented to the upper House. The advice was not given on the amendments that the member for Murchison and others had drafted. Many of the concerns they raised were dealt with in those amendments that were moved by the independent members in the upper House.

I find it extraordinary that the Government would go to the lengths they are going to now to alienate those members of the upper House who worked so hard, in the Government's words, 'fixing the amendments that were attempted in the lower House'. These have been done in good faith. They have been done to retain the essence of what was attempted in the lower House and to achieve it in a way that represents good law.

From my memory, one of the issues that the Solicitor-General raised as a concern was that changes represented in the bill and in the amendments may cause problems for police conducting searches on transgender and gender diverse people. The member for Murchison followed that up quite rigorously with the Commissioner of Police who explained that they already have policies and procedures in place when searches are required on people who are transgender or gender diverse or non-binary. Notwithstanding that, the point I want to make is the fact that those problems might occur is not a reason not to support the reforms we are changing and suggesting here.

It is a demonstration of the fact that there are problems with those policies and the behaviours of public service agencies who do not have legislation or policies in place that deal with the fact that there are transgender and gender diverse people in our community who interact with every part of our community: education, health, justice, police and so on.

That advice from the Solicitor-General should motivate the Government to improve other areas of the law that do not treat people the way they should expect to be treated by their state. This amendment from the upper House articulates the fact that we are removing the current test of how somebody is to have their gender marker changed on their birth certificate, which at the moment is divorce and surgery. If you remove the existing processes, they must be replaced with something else and these changes replace them with a new process for how somebody would go about having their gender marker changed on their printed birth certificate and identity documents.

Despite the upper House members giving every impression that they understood the intent of those changes, they understood the differences the member for Murchison's changes represented as compared to what was passed in the lower House, senior members of the Government have continued to bandy about things that are completely ill-informed and wrong. I give an example of a radio interview that was given last week by a very senior member of the Government. She was asked 'Under these changes, will parents now have the option of putting a sex on the birth certificate of their child, be able to put a sex that is demonstrably not the biological sex of the child?' The answer to that question should have to been, 'No, that will not be possible under these changes because all children at birth will be registered male or female'. That is not what the senior member of the Government said. She said, 'It is hard to say at the minute because it is not finished yet'. He said, 'So you don't know the answer to that question. I thought that is pretty obvious. If you have the opportunity as a parent to make these sorts of judgments, you look at your little girl and say oh well, we want to call him Jack. We will put him down as a boy. Is that possible?' The answer to that question should have been, 'No, that is not possible under these changes. It is not possible under existing law and it will not be possible if these changes pass'. Her answer to that question was, 'At the moment, that is a very real possibility'.

That is heartbreaking. How do you combat that? When someone is willing to say something that is completely a distortion of everything they have heard in the weeks and months of consultation and writing and debating amendments and speaking to one another. I do not have the words for it. It is hard to come up against people who will do and say whatever is required to make something go away, regardless of the veracity of those claims. I was very disappointed to hear that interview.

We will be supporting this change. It is a very well-written and thorough new piece of legislation that will replace the current requirements and laws regarding how gender changes are dealt with under Tasmanian law.

 

Ms O'CONNOR - We strongly support the amendment as it has come back from the other place. This clause is for transgender and gender diverse people and is a substantive part of the reforms and the legislation. It will deliver a fairer, non-discriminatory process for people who need to change their gender identity in order to have documents that reflect who they are.

I pay my respect to Ms Haddad for the thoroughness with which she is approaching this legislation and that contribution she made then which said it better than anyone else in this place could have said it.

Premier, stop insulting the upper House. They rigorously debated this section of the legislation we are looking at today. The debate was over a number of days and to point out to the Premier, this legislation is about the best interests of the child at its core. It is about the best interests of transgender, gender-diverse and intersex children and I argue that we should approach it in this way.

I simply point out again to the Premier the way his Attorney-General has dealt with this issue, and Ms Haddad did not name the other member but it was the Leader for Government Business in the upper House running the Attorney-General's talking points of Women Speak and the Coalition for Kids. In fact, when media, as I understand it, went to ask the Attorney-

General for comments on the Births, Deaths and Marriages amendments often there was a suggestion that journalists go and talk to Women Speak Tasmania or the Coalition for Kids. It has been handled extremely poorly, insensitively and, in fact, dangerously.

This amendment we are dealing with here, which is the heart of the reforms, is not only reflective of the will of the House when it went through late last year, but it is an improvement on the language because it was drafted by the Office of Parliamentary Counsel, and we strongly support it.

 

Mr HODGMAN - To repeat, we will be certainly not be tabling the advice as requested. I make the point also that there were concerns raised directly by the Solicitor-General in that briefing with members of the Legislative Council. I am advised that the Solicitor-General's advice was based on the amendments brought forward by members in the other place as they were available at the time, the 20 versions. Examples were cited by the Solicitor-General independently as to his concerns. He indicated to the Legislative Council members at that open briefing that a fuller body of work was required.

In relation to the interests of the child, I was citing the views expressed by our Children's Commissioner.

 

Ms O'Connor - She was actually supportive of the intent of the legislation.

 

Mr CHAIRMAN - Order, Ms O'Connor.

 

Mr HODGMAN - That element I have referred to conveys a different impression, a different view.

 

Ms O'Connor - The Commissioner for Children supports these reforms.

 

Mr HODGMAN - As I have said earlier today, we will be getting further advice in relation to the laws that pass this place, as governments typically do. I ask members, particularly those who have taken the opportunity today to unfairly besmirch the Attorney-General, who in my view has handled a very sensitive and complex matter of law in a considered and thoughtful way, to desist from that. She is not in this place to defend herself -

 

Ms O'Connor - You do not read the media releases that land in your email.

 

Mr CHAIRMAN - Order, Ms O'Connor.

 

Ms O'CONNOR - Mr Chairman, unfortunately I do not have in front of me some of those inflammatory, dishonest and divisive media statements that were issued by the Attorney-General, but they were certainly not sensitive. They were highly politicised and threw out so many red herrings in order to create fear and confusion within the community about these reforms. I am responding to what the Premier has said about the Solicitor-General briefing upper House members. Yes, sure, eight of those members who attended that briefing took on board his concerns, and as experienced legislators they backed these reforms.

 

Question - That the Council amendment to clause 21 be disagreed.

The Committee divided -

AYES 10 NOES 12

Amendment agreed to.

Council amendment to clause 22 -

Mr HODGMAN - Mr Chairman, I move –

That the Council amendment to clause 22 be agreed to.

Council amendment to clause 22 agreed to.

 

Council amendments to clause 23 -

Mr HODGMAN - Mr Chairman, I move -

That the Council amendment to clause 23 be disagreed.

 

Ms HADDAD - I do not intend to speak for a long time on this clause but I want to give the Chamber the benefit of an example of what happens when you apply for a birth certificate in Tasmania to explain the intent of this clause. All through this debate, part of the scare campaign has been to say it is going to be opt in or opt out, we are removing gender, and all these kinds of ridiculous claims. How the Registrar of Births, Deaths and Marriages administers these changes will be a matter for her but the way we imagine it may play out is that when you apply for a birth certificate there would most likely be a box on that form asking, 'would you like the relevant gender marker as registered?', because gender and sex will be registered, and 'would you like that printed onto this form'?

A friend of mine had a baby recently. I have a de-identified example of their application for a birth certificate. This is the third administrative step required when a baby is born. The first is the notification of birth that the hospital must lodge within 21 days and is often done within hours. That will say the child's gender, male or female. Next comes the parent's responsibility to register the birth of the child, which has to happen within 60 days. Third, you can apply for a birth certificate. You do not need to. I did not apply for one until I applied for a passport when I was about 16.

If a parent chooses to apply for a birth certificate for their child at an older age, or an adult applies, a series of questions need to be answered. You have to say who you are, who your parents are, where you live, where you want your birth certificate posted, and the existing tick-a-box asks whether you want to be issued with a standard birth certificate, standard and decorative birth certificate, or a decorative birth certificate. Then there are two sets of boxes or options to tick. People are coping with this right now, when babies are born. They are coping with this onerous task of ticking boxes on a form. The second layer of boxes states that if you have chosen the decorative certificate, you must specify whether you would like that decorative certificate to include flora, pictures of flowers and leaves, a teddy, a picture of a bear, or pictures of children's hands. They are the current options you can apply for when you are applying for a birth certificate for your child or yourself. We suggest another box be added to that form asking whether you would like to have the relevant gender marker included, as registered by the state of Tasmania.

 

Ms O'CONNOR - This clause provides for application for a birth certificate, enables the registrar to issue a birth certificate including the facts as reported on the register. I take the opportunity on this amendment to read the story of a truly impressive young man, George Kennedy, who's mum Melana is in the Chamber watching today's debate.

George is now 23 and transitioned at the age of 13. He wrote recently on Facebook -

Yesterday was trans-day of visibility and I am torn with every year it passes. I see horrible things in the news and online about trans people, the treatment of us and the media's portrayal of us. It all breeds misinformation, fear and hatred, as the media and some of our politicians love to do to any marginalised group.

Our own Prime Minister thinks it is 'ridiculous' for birth certificate laws to change in order to accommodate trans people.

George says -

I was humiliated applying for a job. I had to show my birth certificate form, which has my old name and female written very noticeably. It is dehumanising to be treated like a freak, something that most trans people have almost certainly felt at some point. It is psychologically damaging and I was suicidal for a long time, having no place in society and no hope for my future.

Now that everything in my life is coming up Millhouse, it is easy to fade into the background and pretend I am a regular guy. I don't have to constantly answer questions about any surgeries or genitals or how I have sex, among other disgusting things you never ask a stranger if you don't consider them to be below you. I don't have to constantly defend my identity when people with 'good intentions' are 'curious'. It is a relief not to have to prove myself or strive for anyone's validation anymore.

I am well aware I have always had it easy compared to many of my trans brothers and sisters and I am often ashamed not to be more public, helping to normalise the trans community because, from what I have learned, people arguing on the internet, debating on TV or rallying for a cause, rarely changes the opposing camp's mind or opens them to acceptance. It is meeting people one-on-one, who have never met a trans person before or someone who has a media-filled fear or hatred of you and showing them you are a regular person too. I have been surprised by some of the people who have accepted me and, by extension, trans people in general. I am aware that saying this to an echo chamber of mostly progressive young people is not making any profound changes, but this has been difficult to share and maybe it is a good start.

George, you have shared it more widely. I feel proud to read your contribution into the Hansard. We strongly support this amendment and note for the House we are nearly done.

 

Dr BROAD - There has been this myth in the community throughout this long and torturous debate that birth certificates are somehow are an infallible piece of identification completely free of flaws, or that if there is something wrong on it we will see the end of all things good.

I looked at my own birth certificate. I cannot remember why I applied for a copy. My birth certificate does say I am male, but there is an error on my birth certificate and more than likely an error on my birth record: my father's birth date is incorrect. The idea that birth certificates and birth records are an infallible piece of information is not correct because I stand here with a birth certificate that is demonstrably incorrect. It has my father's birth date, stating that he was born in 1944 but he was born in 1942. These errors can be propagated.

Ms O'BYRNE - If we are offering full disclosure, in my post-baby haze, when I was filling out the form I managed to spell my husband's place of birth wrong but is appears that Eleanor can still attend most public institutions, so it seems to have been okay.

 

The Committee divided -

AYES 10 NOES 12

Council amendment to clause 23 agreed to.

 

Council amendments to clause 24 -

Mr HODGMAN - Mr Chairman, I move -

That amendment to clause 24 be disagreed.

 

Ms HADDAD - We will be supporting the amendment as described coming back from the upper House. This changes one of the attempts of the lower House to have gender and sex recorded off the register. It relates to the amendment discussed earlier which will mean that the Registrar will be required to record sex on the register.

 

The Committee divided -

AYES 10 NOES 12

Council amendment to clause 24 agreed to.

 

Council amendments to clause 32 -

First amendment -

Mr HODGMAN - Mr Chairman, I move -

That the Council amendment to clause 32, first amendment, be agreed to.

First amendment agreed to.

 

Second amendment -

Mr HODGMAN - Mr Chairman, I move -

That the Council amendment to clause 32, second amendment, be agreed to.

Second amendment agreed to.

 

Third amendment -

Mr HODGMAN - Mr Chairman, I move -

That the Council amendment to clause 32, third amendment, be agreed to.

Third amendment agreed to.

 

Council amendments to insert new Clause A –

Mr HODGMAN - Mr Chairman, I move -

That the Council amendments to insert new Clause A be agreed to.

New Clause A agreed to.

 

Council amendments to insert new Clause B -

Mr HODGMAN - Mr Chairman, I move –

That the Council amendment to insert new Clause B be disagreed.

 

The Committee divided -

AYES 10 NOES 12

Council amendment to insert new clause B agreed to.

 

Council amendment to insert new clause C -

Mr HODGMAN - Mr Chairman, I move -

That the Council amendment to insert new clause C be disagreed.

The Committee divided -

AYES 10 NOES 12

Council amendment to insert new clause C agreed to.

 

 

Council amendment to insert new clause D -

 

Mr HODGMAN - Mr Chairman, I move -

That the Council amendment to insert new clause D be disagreed.

 

Ms HADDAD - I want to put on the record some of the details of this amendment and make some final remarks, recognising that we are not far from the end of these amendments. This clause creates an offence in the Births, Deaths and Marriages Act. The reason I wanted to speak on this is that is creates an offence relating to some of the unease that was felt in the community about these changes and some of that unease fuelled a widespread hate campaign and scare campaign. It creates an offence if you attempt to use a birth certificate that does not reflect the right information, so in other words a fraud type of offence. There are already offences on the books that would have covered this kind of thing.

The reason the upper House saw fit to include an offence provision was driven by the level of scare campaign being run in the community and the radio interview I referenced earlier covered this topic as well about using wrong birth certificates or changing genders on birth certificates multiple times. The question that was given to the Leader for Government Business was whether there was any clarification she had been given in the legislation that would limit the number of times a person is able to alter their gender in a defined period of time. How many times could you do it? Could you do it every day? Clearly the answer to that should have been no, it would not be possible to do that every day, but she answered, 'At the minute there is nothing in the legislation to say how many times you could or you could not'. Either she was misinformed or just malicious to say that on the radio.

Not only is that not something that could happen under these changes but there is even an offence provision created that relates to it in one way or another. We did hear horrible hate campaigns that were encouraged and fuelled by members of the Government and others that public toilets would not be safe places anymore, that women's shelters and women's legal and health services would not be female-only places anymore, that we would erase gender, that sporting organisations would not be able to cope with these changes, and indeed that we had legalised male pregnancy, which is quite farcical.

All of these were rebutted by people who understand these changes and by the organisations that were criticised. In the middle of the lower House debate last year there was a joint press release issued by Women's Health Tasmania, Hobart Women's Shelter, Engender Equality, which is the domestic violence service, and Women's Legal Service Tasmania, that explained they already serviced the needs of transgender women and recognised that transgender women are women. Those services are women-only spaces and that includes transgender women. This misnomer that transgender people are out there to trick people, which is deeply offensive and should be offensive to everybody in this Chamber, was allowed to fester and grow wings in ways that the Government assisted along the way. Indeed, pulled out all stops to encourage women. Did nothing to dampen those fears.

The changes that we have seen today pass in this Chamber, the Government has proved its point, we have divided on every clause and I am sure we will divide on these two remaining clauses. The Government has their tallies. I am sure the press releases are already drafted and ready to be emailed out to the media right now to explain how parliament has been hijacked once again by opposition parties, to explain that what the upper House did was unparliamentary, unconstitutional. That is how it was described by some of those members upstairs last week. That it was a flawed process. It was unparliamentary. The parliament had never seen something like this process before.

I might be new to this place but I thought a Chamber of a parliament amending a bill and sending those amendments for consideration by the other Chamber, that Chamber making further amendments to be reconsidered here, surely that is at the heart of parliamentary democracy. That is what making laws is about. The fact that the Government does not have the numbers to ensure that any changes that get made to legislation are the changes they want is not an issue with parliamentary democracy. That is an issue with this Government.

Time and time again, this Government has given commitments to transgender people in Tasmania, commitments to the lesbian, gay, transgender, intersex and gender diverse communities, that they have their interests in mind. That has been done through Government policy in education, in health, in justice. Written policies, documents that exist out there about how the rights of transgender and gender diverse people should be respected and how those people should expect to be treated by their public institutions. I commend the Government for those policies. We support them and agree that people who are transgender or gender diverse should be treated with respect and should be expected to be treated under the principles that are outlined in those policies.

What are those people to feel today when they see every Government member speaking out through divisions on the floor of the House? It may have proved the point that the Government wanted to prove, but it is proving mine too. How can those people feel that those principles that the Government seeks to stand behind in those other policy documents across departments have any weight and mean anything to those people? Those people have been given assurances by the Premier, by the Attorney-General, by heads of agencies that transgender and gender diverse people matter, that they are cared about, that they are recognised as existing in the gender that they are and yet, at this opportunity, for political reasons, we see every clause divided on and opposed. It is not right.

Maybe I am wrong and, Premier, I invite you to tell me why I am wrong. I am wrong that the Government cares about transgender and gender diverse people. I am wrong that the Government has those policies in place across government about how those people are to be treated, and treated with respect and free of discrimination. Or alternatively I am right that the Government feels that way and it is an utter anomaly to have so publicly gone against those principles by opposing every part of this change.

The Premier is right to say this the Attorney-General's bill - and my condolences are absolutely with the Attorney-General and with her family. I have not brought her into disrepute in this place today but your words have weight, Premier, through you, Mr Chairman. Your words matter. You are the leader of this Government, you are the leader of this state. I respect the office of the Premier of Tasmania and your words matter to transgender and gender diverse communities.

I invite you in these final moments of this debate to put aside those scare campaigns that we have seen over the last several months, weeks and days of debate in the Chamber and elsewhere and tell me that I am wrong that those things matter to Tasmanians. At their simplest description these laws just do a few simple things: removes the forced divorce provision, which we were required to do under Commonwealth legislation; removes the forced surgery provisions and changes the existing process of how to have a gender marker changed on the birth certificate from the existing processes to a new, simpler administrative process involving a statutory declaration. That is it at its core.

I will read into Hansard that I hope can be followed up tomorrow. It is a letter that appeared in today's Mercury from Charlie Burton of Sandy Bay. Charlie said:

I thank and congratulate upper House members who voted in favour of legislation to give trans and gender diverse Tasmanians equality and protection before the law. Thank them because this legislation will make a real difference to our lives. And congratulate them, because many members kept an open mind, were willing to hear personal stories of those affected and did not allow themselves to be swayed by the misinformation and outright lies being spread by opponents of the reforms.

This legislation must be among the most scrutinised in the state's history, having been the subject of days of debate by the upper House and in a previous form, and the lower House.

Tasmanians have nothing to fear from these reforms. Once passed, it is unlikely anyone other than trans and gender diverse Tasmanians will even notice. I urge members of the lower House to be true to the will of the Parliament and pass this legislation.

It is my sincere hope that Charlie will be able to write a follow-up letter, congratulating members of the lower House for respecting the will of the parliament and passing these changes into law. Charlie is quite right when he says no-one will notice the effects of these changes except for the people who need these changes most which is transgender and gender diverse people. It will not affect anyone else in the community except for those people who need them most.

I am proud to be part of the Labor Party that has, and will always, stand up for the rights of LGBT people. These changes represented today will simply further protect the rights of people who need it while not infringing upon or diminishing the rights of anyone else in our community.

 

Question - That the Council amendment to insert new Clause D be disagreed.

The Committee divided -

AYES 10 NOES 12

Council amendment to insert new clause D agreed to.

 

Council amendment to insert new clause E -

Mr HODGMAN - Mr Chairman, I move –

That the Council amendments to new clause E be disagreed.

 

Question - That the Council amendment to insert new clause E be disagreed.

The Committee divided -

AYES 10 NOES 12

New clause E agreed to.

 

Council amendments agreed to.

Reported the Committee had resolved to agree to the council amendments.

Resolution agreed to.