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
