Sunday, 18 December 2016

In a ground-breaking decision, Family Court of Australia recognises a US pre-birth surrogacy order

Family Court of Australia court registers US pre-birth surrogacy order

In a groundbreaking decision, for the first time ever, the Family Court of Australia has registered a US surrogacy order. The effect of the Australian order means, that for all purposes the US order can be enforced in Australia and that the parents of the child as recognised by the US order are recognised as the parents of the child in Australia.

Until this decision, reported as Re Halvard and Another, there were only two ways that Australians going to the United States could be recognised in Australia as parents (other than for citizenship purposes), either:

  • to apply to the Family Court for a declaration as to parentage. The problems with this approach are that it is extremely expensive, is slow and may not be successful. I am told that a colleague charges $18,000, and that would be a fair figure. However, recent cases have indicated that different judges of the Family Court have different approaches, so that it was unclear whether the parents would be recognised as the parents; or
  • if living in Western Australia, to apply to the Family Court of Western Australia for a step-parent adoption order. That possibility arose from a 2013 case. However, the judge in that case told a legal conference in WA in 2015 that she was unlikely to continue to do so, out of concerns for surrogates. Further, following the Baby Gammy decision in the Family Court of Western Australia, it is doubtful whether that type of application would be successful now.
Not surprisingly, most parents who had returned to Australia with their babies born overseas chose, after they either obtained Australian citizenship for their children, (or if they were permanent residents or visa holders, ensured that their child was subject to the same visa conditions), to do nothing further. Why spend a lot of money going to court for little purpose?

There is another risk. Those who were from Queensland, NSW and the ACT in particular were at special risk that in going to the court that they might be referred to authorities to see if they had committed an offence, and then be prosecuted. A Sydney judge referred two Queensland couples to the Queensland Director Prosecutions for this purpose back in 2011. As it happened, neither couple was prosecuted.


This case

The parents lived in the United States. One of the parents was an Australian citizen and the other was a US citizen. The boy, X, lived with them in the US. The father had family members in Australia, and the intention was to travel to Australia from time to time.

The parents underwent surrogacy in Tennessee.They entered into a surrogacy agreement with a surrogate. X was conceived from the father's sperm and the mother's egg. A court in Tennessee ordered, when the the surrogate was 30-32 weeks pregnant that when the child was born, the parents would be declared to be the parents and that they would have custody of the child.

What is the effect of registration?

The Family Law Act provides that an overseas child order, made in a prescribed overseas jurisdiction, can be registered with the Family Court of Australia. Once it is registered, the overseas child order takes effect in Australia. Therefore if it is possible to register an overseas child order, and the form of that order recognises the intended parents as the parents of the child, then that order will transform the child's identity and legal relationship with the parents, not only in the overseas country [as happened when the overseas order was made], but also in Australia.

This means, for example, that the only people who have been granted parental responsibility for the child, in effect for the Australian Passports Act, are the parents, not the surrogate. Therefore the surrogate's consent for new Australian passports for the child will not be required.

If the parents were to die, then they would be recognised under Australian law as the parents of the child for inheritance purposes. They would also be recognised as the parents for child support purposes.

If the order were not registered, it is uncertain if this were the case.

Why did it go a judge?

The parents had first made an application to a registrar of  the court, who had declined to register the order. Because there was no ability to review the registrar's decision, and the law allowed the parents to bring an application before a judge, they did so.

What are reasonable costs?

Justice Forrest rejected the submissions of the parents' lawyer that the surrogacy arrangement was a commercial surrogacy arrangement under the Queensland and NSW Surrogacy Acts. His Honour found that the surrogacy agreement was altruistic  and was not a commercial surrogacy arrangement disguised as altruistic surrogacy. His Honour stated:

"The agreement in this case between the applicants and the gestational carrier in Tennessee was one in which the gestational carrier was reimbursed by the applicants for all of her pregnancy related out-of-pocket expenses. The terms of the agreement that provided for that certainly appeared quite generous but not so generous that I would consider it a commercial surrogacy agreement masked as one in which reimbursement is provided."

Implications of the decision

Any Australian intended parents who have undertaken surrogacy in the US should consider making application to register their US orders with the Family Court of Australia. However, they should get expert legal advice on doing so. Properly handled, the registration application should be relatively quick, cheap and effective.

Registration may also be relevant in Hague child abduction cases where the order has been made in the US, and the child is wrongfully removed to Australia or wrongfully retained in Australia.

Those contemplating or in the process of undertaking surrogacy in the US should get expert Australian legal advice before the orders are made there- because of making sure they are the right form for the Australian courts.

Those who have undertaken surrogacy overseas, especially in the US, and believe that they have committed a criminal offence in Australia in undertaking surrogacy in the US should get expert Australian legal advice. They may not have committed any criminal offence after all. This is particularly important in NSW for example, as there is not time limit for offences there.

The case makes it plain that pre-birth orders made in the US are covered. Pre-birth orders are made in about 40 US states.

Australian citizens who live abroad who contemplate returning to Australia at some stage with their children should, in my view, seriously consider undertaking registration.

Obtaining registration should be a lot cheaper than having to obtain a parenting order under the Family Law Act.

Limitations of the decision

The case will only apply to surrogacy orders made in the US and New Zealand. It will not apply to surrogacy orders made elsewhere, for example in Canada. This is because only those jurisdictions that are prescribed overseas jurisdictions can have their orders registered in Australia by this method. Regrettably very few jurisdictions are prescribed overseas jurisdictions. 48 of the 51 US jurisdictions are prescribed overseas jurisdictions. The ones that miss out are: South Dakota, Missouri and New Mexico.

Justice Forrest noted that in a previous decision in 2013, Justice Ryan declined to register a pre-birth surrogacy order made in South Africa because:

"The simple fact that South Africa is not included in the schedule that lists the countries that meet the definition of “prescribed overseas jurisdiction” is what prevented that order from being registered in this Court."

Those contemplating registration should NOT do so by registering their order through the Attorney-General's department. They should also be very careful about how they undertake the registration process. The judgment shows that the parents had been rejected by a registrar, and that the process before a judge is discretionary. If the judge believes that it is commercial surrogacy, then the application might be rejected.

Every case is different

What might be great for one couple, might end up exposing another to not getting registration or, worse, possibly being prosecuted. Expert advice is needed. Where intended parents lived at the time they underwent the surrogacy is also relevant, because each State and the ACT have different laws as to surrogacy:

  • Queensland: If the limitation period has run out for prosecution (1 year after the last payment), then it should be considered, with careful consideration to whether the expenses were reasonable.
  • NSW: If the parents underwent surrogacy before 1 March 2011 or signed their surrogacy agency retainer before that date, then registration is appealing. For those after that date, consideration should be given first as to whether the expenses were reasonable.
  • ACT: Consideration should be given first as to whether the expenses were reasonable.
  • Victoria: Registration is recommended for those who entered into the surrogacy arrangement after 1 January 2010. For those who entered into before that date, consideration should be given as to whether the expenses were reasonable.
  • Tasmania: Registration is recommended.
  • South Australia: Care should be taken to make sure if it is a pre- July 2015 or post-July 2015 surrogacy arrangement. If the latter, was the consent of the Attorney-General obtained? Consideration either way would need to be given as to whether the expenses were reasonable and whether there has been the payment of valuable consideration.
  • Western Australia: Care should be taken as to whether there is a surrogacy arrangement for reward has been entered into in breach of the Surrogacy Act and the Criminal Code. If not, then registration is recommended- but it may not be advisable to do so in Western Australia. 
  • Northern Territory: Registration is recommended.

Thursday, 3 November 2016

Hooray! Qld to allow same sex couples, singles to adopt

Last night the Queensland Parliament passed amendments to the State's Adoption Act 2009 to allow same sex couples, singles and those undergoing fertility treatment to be eligible to adopt.

This was an historic moment. For the first time in history, this discrimination will be removed- and will enable the assessment of who is to be an adoptive parent for a child to be decided purely on the best interests of the child, and without discrimination based on the sexuality of the intended parents, or whether the intended parents are single as opposed to a couple, and stops the cruel choice for couples of either undergoing IVF OR adoption, but not both.

I and others were critical when the Adoption Act 2009 was enacted- because it was discriminatory. It is pleasing to see this change.

To get this Bill through required real courage on the part of the Palaszczuk government. The two independents voted in favour, as did the casting vote of Speaker Peter Wellington. His voted was needed was because the two Katter Party members voted against, as did, sadly,  the whole of the LNP.

And what was the rationale of the LNP? Quite simply- there aren't enough children to be adopted. They are right. There aren't. But that is no reason to discriminate. The assessment for every child should be based on the best interests of that child, consistent with our international obligations under the International Convention on the Rights of the Child. To do otherwise is unfair, discriminatory, unequal - and wrong. As my 2C teacher Mrs Bray taught me all those years ago: "Two wrongs don't make a right."

The Bill commences when it receives the Royal assent, which should be in the next few days. 

The Government's position is also in line with Australia's position to the world under the Turnbull government. Last year Australian went to the UN in Geneva, and after being roundly chastised by 100 odd other countries about its discriminatory practices with LGBTI people, said that it would stop allowing exemptions to the Sex Discrimination Act for State legislation. Those exemptions came to an end on 31 July.

What is also important from these changes is that for the first time in legislation that I have seen, there is a definition of infertility- and it is non-discriminatory. This definition is consistent with a non-discriminatory definition of infertility proposed by the World Health Organization. The message is clear- that those undergoing infertility treatment can include singles and LGBTI people.  Here is the definition:

Infertility, of a person, means-
(a)   An inability, for a reason beyond the person’s control, to conceive; or
(b)   A genetically transmitted disorder giving rise to a significant risk that, if the person was a biological parent of a child, the child would not survive or the child’s health would be seriously impaired; or
(c)    A condition giving rise to a significant risk that, if the person fell pregnant, the child would not be carried until the child could be delivered alive; or
(d)   A condition giving rise to a significant risk that, if the person fell pregnant, the person would not survive or the person’s health would be seriously impaired.

Tuesday, 18 October 2016

Australia's human rights commissioners call for equal marriage

Yesterday Australia's human right commissioners- both for Australia and all the States and Territories called for equal marriage laws.

The commissioners, who comprise the Australian Council of Human Rights Authorities, said:

"ACHRA members reaffirm their support for marriage equality based on the fundamental human rights principles of equality before the law and non-discrimination. Members call on political leaders to work towards a resolution of this issue in a way that respects the rights and freedoms of all Australians. ACHRA reminds leaders and the community that prejudice and vilification in relation to sexuality and gender identity is harmful to individuals and society. In this regard, public debate must comply with existing discrimination protections in Federal, State & Territory laws. Those laws provide an appropriate balance of the rights to freedom of expression and belief, equality, and freedom from discrimination."

Couldn't have put it better myself.

Monday, 17 October 2016

Well that was no surprise! Now wait for the muddling before we have equal marriage

What was surprising was not that the ALP in effect killed off the plebiscite, but that the ALP caucus, which was always geared to have a conscience vote on gay marriage, at least until 2019, voted unanimously against the plebiscite.

This gives a strong message. The ALP is headed in one direction- no plebiscite, but a free vote.

While we have not yet had the vote in the Senate yet, the outcome is certain. Politics is after all a numbers game, and the numbers are against the Government in the Senate.

It is extraordinary that due to the opposition of Tony Abbott, some conservative Liberals like Cory Bernardi and Eric Abetz, and the Nationals that we are now in this mess- where increasingly the public just want the Government to solve the porblem, and the longer it goes on, the weaker the Government looks. No matter that the Prime Minister will feel that he cannot move- because to do otherwise will lead to his downfall.

The Prime Minister is clear: anytime soon no plebiscite, no change. Or at least, that is what some backbenchers and some Nationals members have said. There has even been talk that if the Government drops the plebiscite idea, and seeks a free vote it will be a breach of the coalition agreement.

In the midst of all of this, the man charged with getting the change through, Attorney-General George Brandis, was dragged into a Senate inquiry on Friday, following public differences between him and Solicitor-General Justin Gleeson. This is a major fight. Academics have weighed in, as has famed former Solicitor- General, who seemed to win every High Court case on behalf of the Commonwealth in his term, Dr Gavan Griffiths.

As of this morning, there were media reports that the plan was to move George Brandis sideways, either to replace Alexander Downer as Australian High Commissioner in London (who was opposed to THAT move) , or to fill the next High Court vacancy. But Brandis is going nowhere- at least for now.

Be that as it may, it is a huge distraction for Brandis to somehow craft a deal to get same sex marriage through, or to persuade others to accept his views, when on top of his onerous duties he also has the stoush with the Senate and the Solicitor-General.

A side distraction for the Government (if there weren't enough already) has been the immediate resignation of Family First's Senator Bob Day (SA), following the collapse of his Huxley Homes. The resignation will trigger the likely appointment of another Family First Senator from South Australia. Who it will be is not known, but it is extremely unlikely that their view will be anything but opposed to same sex marriage.

So we shall probably have to wait- and wait some more, until we eventually, in the words of Michael Kirby, muddle through and then enact equal marriage.

Sunday, 9 October 2016

Why I support the joint statement by LGBTI leaders against the plebiscite bill

It is now one year and one day since I married my husband in Las Vegas. Our marriage was celebrated before God, according to law, in front of 10 friends in person, and 250 friends and family in several countries via streaming. Our marriage, and the marriages of many other couples, is not recognised in our homeland, although it is recognised in countries with which we show a close affinity, heritage and values: the UK, Ireland, Canada, US and New Zealand, as well as many other countries including Brazil, Argentina, Colombia, South Africa, and many European countries.

 The cause of our angst

In 1961 then Attorney-General in a coalition government, and later Chief Justice Sir Garfield Barwick pushed the Marriage Bill, through Parliament. At the time it was considered revolutionary. Despite vehement Church opposition to the Marriage Bill, no one came up with the idea that Parliament should abrogate its job and have a plebiscite.

In 1975, when under Attorney-General Lionel Murphy, the Marriage Act was amended to allow civil celebrants, no one, despite vehement Church opposition, suggested that Parliament should abrogate its job and have a plebiscite. Now about 80% of marriages are celebrated by celebrants, not ordained Ministers.

 In 2004, John Howard with Labor support caused amendments to be made to the Marriage Act 1961 to prevent same sex marriage. Again, no one suggested that there should be a plebiscite. One could imagine that John Howard would have vigorously opposed such a step.

While I considered (and still do) that this was a retrograde step, I have never opposed the ability of Parliament to legislate for the common good.

But it is this legislation that is the reason the Marriage Act needs to be amended. For several years, various MP's and Senators have come up with quick and simple legislative fixes to fix the Marriage Act and remove the discrimination. This was solidly opposed by the coalition, and earlier by Labor.

Last year came the fix from the right of the Liberal Party, and spurred on by the Nationals, Tony Abbott embraced the plebiscite as a way of allowing open debate about same sex marriage- but as a means ultimately of defeating it.

As a seeming price of his becoming PM, Malcolm Turnbull, who rightly opposed the idea of the plebiscite, has embraced it, took it to the general election, and by a majority of one, won the election.

And now we have a proposed plebiscite that:

  • is unnecessary
  • devalues the role of Parliament, and through it our representative democracy, which despite its faults has meant that Australia is one of the oldest democracies in the world, and which by its openness has meant that we are prosperous and stable. Our respect for our democratic institutions, including that of Parliament, are fundamental to that.
  • seeks to have the majority decide whether or not a minority have rights- and not just any rights- but the right to one of the most fundamental things- the right to form a relationship- to marry, rather than Parliament recognising those rights
  • sets a precedent that when things get too hard, will cause MP's to throw it to a plebiscite rather than doing their jobs, the jobs we as taxpayers pay them to do.
  • will lead to the most rancorous debate. There will be a permanent impact on many LGBTI people. I don't accept that debate will be civilised. While laws prevent and will continue to prevent abuse being published- in the homes and on the streets homophobic abuse will continue. All too often I am subject to that abuse now. Why should I believe when the emotions are heightened that now it won't happen? Ireland is given as the example of a success story of a referendum. In Ireland a referendum was required to change the constitution. We don't need that. Now most LGBTI Irish are saying that the process of going through the referendum was such that they would likely not do something like that again, it was so scarring.
  • is a fundamental waste of money- at last count $200 million. Of all the ways that Government can waste money, this is a pretty extreme way, when according to pollsters, every electorate in the country, except one, the outback Queensland seat of Maranoa, is in favour of same sex marriage. Even Bob Katter's outback seat of Kennedy is in favour.
While I remain deeply saddened that marriage equality has not come, and will not come soon, the more I think about the plebiscite, the more I am opposed to the idea.

As a nation, we can do better.

Here is the public statement that I support:

As organisations and leaders of the lesbian, gay, bisexual, transgender and intersex (LGBTI) communities, we call on the Australian Parliament to ensure that every Australian is able to marry the person they love, in the country they cherish.
Making a solemn commitment to build a secure future with your partner, in front of your family and friends, is something that should be publicly celebrated. Declaring your commitment to look after your partner in sickness and health both cements your relationship through the rough times and shares your joys in the good times.
We make this call not only on behalf of LGBTI communities and their families who have been waiting for over a decade, but importantly to ensure future generations of LGBTI Australians can grow up on equal footing with their peers.
Two thirds of the Australian people, a majority of both houses of parliament and leaders of all major parties support marriage equality. We have never had so much support for achieving this small step towards every Australian having the same opportunities as their neighbour.
Our shared goal is simple – we want marriage equality as soon as possible at the lowest cost. The most efficient and effective way of achieving marriage equality is a vote in Parliament, a power confirmed by the High Court in 2013.
Marriage equality is about people, not politics. It is about the grandma who wants to see her granddaughter married in her lifetime, the parents who want to walk their children down the aisle, the children who wish to see their parents marry, and the many ageing couples who have endured inequality throughout their lives.
Our relationships, future happiness and security should not be used for political point-scoring.
We call on our political leaders to put aside partisanship and come together to find an achievable pathway for marriage equality, this term.
The Government proposes a plebiscite which we believe is unnecessary, costly and divisive, when the law can be changed through a straightforward vote in parliament. No Australian should have to witness a national debate on their worth or the value of their relationship. We are particularly concerned about the psychological impact on our communities caused by repeated exposure to divisive national discourse – concerns that are based on research evidence.
Our expectation has always been that should a plebiscite proceed, parliament would ensure a fair and reasonable plebiscite process that recognises the impact of this national conversation. Unfortunately, the plebiscite machinery legislation now presented by the government is neither. Indeed it is unfair, unjust and unworkable:
  • No government amendments to the Marriage Act have been provided as yet, nor are they guaranteed to come into effect following a successful Yes vote. It is unreasonable to expect the community and the parliament to vote on a plebiscite without first seeing the detail of what will be enacted upon a successful vote.
  • It is unacceptable to use $15 million of tax-payer dollars to fund the YES and NO committees, adding to the already extraordinary cost of the plebiscite. The proposal requires no truth-in-advertising test, yet will be seen as being endorsed by the Australian Government.
  • The Government’s bill will create an uneven playing field. Religious organisations already enjoy a range of tax benefits and concessions denied to other entities. Few LGBTI organisation have comparable tax deductibility status. Limiting tax-deductible donations to $1500 for individuals will exacerbate this unfairness.
  • The question is unnecessarily complex and the wording ‘same-sex’ fails to be fully inclusive of all LGBTI relationships. Media reports that the question has been crafted to improve the chances of a ‘no’ vote are troubling.
  • The plebiscite package provides no strategies or funding to address the considerable concern about the impact of the plebiscite on LGBTI communities, our families and friends. We have already seen reports of LGBTI Australians distressed.
Given this, we call on parliament to vote down the plebiscite machinery legislation.
Additionally, we reinforce our call that these reforms should not be delayed due to the politicking of parties in Canberra. We call on all Members of Parliament of good conscience to work together to deliver marriage equality this term.

This will be a week of drama on the plebicite bill

When Parliament resumes on Tuesday, there will be high drama in Canberra about the plebiscite bill.

The Government has signalled that it will present the plebiscite enabling bill for a second reading in the House of Representatives on Tuesday. The Labor caucus does not meet until Tuesday, but subject to a vote in effect of no confidence in Bill Shorten's leadership, the ALP will take a firm position against the plebiscite. It is likely at that time that the plebiscite will be doomed.

Once the Bill is debated upon, it is highly likely that the Government will apply the guillotine to cut debate short, so that the bill can get through the Representatives and go to the Senate. The Government has the numbers in the Representatives for the bill to pass there.

The Bill is scheduled to be before the Senate on Wednesday. There it is unlikely that there will be any swift passage of the bill. It will be interesting to see what happens in the Senate, but the most likely outcome is that there will be several weeks before the bill is killed off. The mess will then be in the Government's hands as to what to do. The Government could seek to amend the bill to placate Senators- but that is unlikely to work. Or the Government could wait the required time (3 months) and then use the bill as a trigger for another double dissolution of the House of Representatives and the Senate if its rejected by the Senate a second time. One could hardly imagine a more unpopular way of calling an election. Or the Government could allow a free vote- but that's unlikely while the plebiscite and the PM's Leadership are in lockstep. Or the Government could say that it puts everything off until after the next election. That seems the most likely course.

So what is the Senate likely to do?

The numbers are against the Government- if the ALP does come out on Tuesday and say it is opposed to the plebiscite. Currently in the Senate, one Government Senator, Dean Smith, who is openly gay, will vote against the plebiscite bill. Pauline Hanson's four senators will vote in favour. Derryn Hinch and Nick Xenophon's three members, the Green and Labor will vote against. In short, subject to the PM and Attorney-General George Brandis pulling a rabbit out of the hat- it appears as dead as a dodo.

Oh and don't forget the most improbable scenario. Senator Eric Abetz, one of of the architects of the plebiscite proposal- as a means of defeating equal marriage- said at one stage that he intended for there to be a Senate inquiry- as a means of slowing the Bill down. Of course, to get his inquiry up and running, Senator Abetz needs a majority in the Senate- and that looks unlikely at this point, to say the least.

For all their talk of the psychological impact on young LGBTI people in particular from the plebiscite campaign, one could not imagine Nick Xenophon, the Greens, Derryn Hinch or Labor supporting an inquiry.

Last week I was lucky to take part in meetings of LGBTI community members with both George Brandis and his Labor counterpart Mark Dreyfus. Both sides seem locked in their positions with little movement. No surprises there.

But we shall wait and see.

Monday, 26 September 2016

Deeply saddening: a failure of our political class to recognise our right to marry

Today was yet another deeply saddening day in the game of chicken being played out between the Government and the Opposition over gay marriage.

On the Government side, we have yet again a plebiscite that no one except the right wing of the Liberal Party and the Nationals wanted- foisted on the Liberal Party room by Tony Abbott. Then accepted by Malcolm Turnbull as a condition of his rise to power- and then invested as a part of the policy platform that he took to the election and won.

The plebiscite in my view would be an enormous waste of money - $200 million, or given how Governments estimate then spend our money, no doubt more- for what according to today's reports say is a shirking of the fundamental job of our Parliament- to legislate, including on controversial issues, as Parliament has done since day one, and one expects will continue to do for as long as it exists.

But worse, as all have said, the plebiscite would not be binding, and it is likely that conservatives like Eric Abetz will use every tool at their disposal to defeat the plebiscite. First the condition to fund the no side (which means both sides have to be funded- again another waste of money, as the electors of this country have pretty well made up their minds on this issue ages ago and want to move on), and then the Senate inquiry- to slow things down and kill off the plebiscite. And then if the plebiscite succeeds, then to vote against the will of the people.

I agree with John Howard. If the will of the people is to support gay marriage, then Parliament should respect the will of the people.

But when John Howard sought successfully back in 2004 to amend the Marriage Act to bring us to where we are now- to outlaw gay marriage, he didn't need to go to a plebiscite. Instead, it was just a vote of the Parliament. He persuaded the ALP Opposition, in classic wedge tactics, to agree to the amendment or be seen as being weak. No surprise- they agreed- and we are stuck where we are.

And if there is a plebiscite- there will be an outpouring of homophobic and transphobic bile that will hurt many people- all unnecessarily. It will impact all too greatly on trans people and young LGBTI people- the most vulnerable.

My husband Mitchell and I do something that is not terribly remarkable, but for which we get abuse. We hold hands in public. For that "temerity" we are subjected almost every other day to the death stare. And then we cop homophobic abuse. Words I had never dreamed of describing myself. I saw myself as being in love with my husband, not those terrible names. And that name calling will just get worse as the plebiscite campaign rolls along.

And where did we recently cop the death stare? As we were at Parliament House in Canberra, to see our local MP Trevor Evans, who is openly gay, give his maiden speech. As we walked up stairs to the entrance of Parliament House - yes we got it again- the death stare. The stare of hatred that just wants us to burn in Hell. The stare of malevolence. The stare of Medusa. All the more ironic to then hear Trevor talk in his maiden speech of his love for his partner Roger.

And on the Labor side? Knowing that Turnbull has nowhere to move, the ALP has decided not to support the plebiscite- and demand a free vote, knowing that Turnbull if he agrees to give it will no longer be Prime Minister. Instead of being the rooster, he will become in an instant the feather duster.

So where does this leave us? As Peta Credlin predicted before the election- in a likely stalemate that will last the term of this Parliament. This is deeply, deeply saddening.

Mitch and I married in the US last year. Over there and in other countries of the world our marriage is recognised. But not here. Not in our home. Here our marriage does not exist- because our politicians do not have the ability to lift above party politics and give us the reform that pollsters tell us time and time again the Australian people want- to allow the recognition of gay marriage. Our marriage is recognised in our eyes, in the law of other countries, including in the US, UK, France, South Africa, Brazil and even Colombia- but not here. Our marriage is recognised by our friends and family, and was celebrated in the presence of God. But that is not enough when the law of our homeland does not recognise our relationship.

Today a poll was released that said in every electorate there was a majority in favour of gay marriage- except one. And that one? Maranoa in outback Queensland, centred on Roma. That electorate and that electorate alone is the only one in the country against gay marriage- and by a very narrow majority. And yet even so it seems as though it will be years before our marriage and others like it will finally be recognised as is our right in our homeland.

Sunday, 21 August 2016

The triumph of the Sex Discrimination Act- making it easier to access IVF for LGBTI people

At the beginning of this month, exemptions under the Sex Discrimination Act to allow the States to discriminate against LGBTI people ended. The impact of these changes, which have been barely mentioned, is profound.

What is the Sex Discrimination Act?

The Sex Discrimination Act 1984 is Commonwealth or federal legislation. It prohibits discrimination in a range of activities, including the provision of services, to people with certain attributes, including single women, and LGBTI people. There are exceptions, including religious exceptions.

Being Commonwealth legislation it reigns supreme. Under our constitution (and for that matter the ACT self-governing act) if there is a conflict between a piece of Commonwealth legislation and State or Territory legislation, the Commonwealth legislation prevails to the extent of the inconsistency.

Adding LGBTI people came later, and was not part of the original purpose of the Act. To allow the States time to adjust to the changes, the Commonwealth allowed some exemptions, essentially so that the States could get their houses in order and compliant with the Sex Discrimination Act.

The Commonwealth was criticised by about 100 other nations in Geneva last Novermber at the UN for in essence being tardy on this point and allowing these exemptions to remain. The Commonwealth told the UN that it would remove the exemptions by the end of July 2016 (as also called for by then Human Rights Commissioner Tim Wilson ) and it has done so.

The demonstrated power of the Sex Discrimination Act

in the past, some States legislated to prohibit the provision of IVF to single women. It seems that only married women were good enough, in the eyes of their Parliaments to become parents. Well that fell foul of the Sex Discrimination Act, which prohibited discrimination on the basis of marital status. In two separate cases, the law was made plain- if a State law says that a doctor cannot provide treatment but the Sex Discrimination Act says that not to provide treatment is discriminatory- then the latter prevails.

The first case was that of Mrs Pearce. She was divorced and wanted to have IVF. She lived in South Australia. Her doctors refused to provide treatment- because she was not married, which would have been a breach of South Australian law. Mrs Pearce took the matter to the South Australia Supreme Court, which found that the Sex Discrimination Act prevailed, and she could have treatment.

Result: Sex Discrimination Act 1, State legislation: 0

The second case involved a well known Melbourne fertility doctor, Dr McBain, who was unable to treat a patient because she was single. Victorian law said only married women could access IVF. Dr McBain took the Victorian government to the Federal Court, which found that the Sex Discrimination Act prevailed, and the patient could have treatment.

Result: Sex Discrimination Act 2, State legislation: 0

What does this mean for IVF?

Quite simply, any State laws that prohibit the provision of IVF on the basis of the patient's relationships status or the patient being LGBTI are now rendered nugatory, due to being  inconsistent with the Sex Discrimination Act.

In South Australia, the Health Department recognised the problem and wrote to all the IVF clinics there and advised them of the change, telling them to get legal advice on a case by case basis. It is anticipated that later this year due to a process started by the Weatherill government, and in which I have input, laws will be passed in South Australia to remove discrimination in the ability of who can be a parent. But in the meantime, doctors now have an obligation to comply with the Sex Discrimination Act and provide treatment to those who were excluded before.

If in any doubt what a revolution this is, this is what s.9 of the Assisted Reproductive Treatment Act 1988 (SA) says about fertility doctors' licensing:

"(c)         a condition preventing the provision of assisted reproductive treatment except in the following circumstances:

                  (i)         if a woman who would be the mother of any child born as a consequence of the assisted reproductive treatment is, or appears to be, infertile;
                  (ii)         if a man who is living with a woman (on a genuine domestic basis as her husband) who would be the mother of any child born as a consequence of the assisted reproductive treatment is, or appears to be, infertile;
                  (iii)         if there appears to be a risk that a serious genetic defect, serious disease or serious illness would be transmitted to a child conceived naturally;
                  (iv)         if—
                        (A)         the donor of the relevant human semen has died; and
                        (B)         before the donor died—
        •         the donor's semen was collected; or
        •         a human ovum (being the ovum of a woman who, immediately before the death of the deceased, was living with the donor on a genuine domestic basis) was fertilised by means of assisted reproductive treatment using the donor's semen; or
        •         an embryo had been created as a consequence of such assisted reproductive treatment; and
                        (C)         before the donor died, the donor consented to the use of the semen, fertilised ovum or embryo (as the case requires) after his death in the provision of the proposed assisted reproductive treatment; and
                        (D)         if the donor gave any directions in relation to the use of the semen, ovum or embryo (as the case requires)—the directions have, as far as is reasonably practicable, been complied with; and
                        (E)         the assisted reproductive treatment is provided for the benefit of a woman who, immediately before the death of the donor, was living with the donor on a genuine domestic basis."

In Queensland, the Anti-Discrimination Act allows discrimination in assisted reproductive treatment services on the basis of relationship status and sexuality- in other words the very mischief seemingly ended by the removal of this discrimination. The Queensland Health Department has not written to IVF clinics advising about the change.

Other States

Despite being called upon by then Human Rights Commissioner Tim Wilson last year for all the States and Territories to review their anti-discrimination laws to remove discrimination against LGBTI people, it seems none have.

What does this mean for discriminatory surrogacy laws?

That bit is unclear. While the doctor might be able to provide IVF, if the intended parent is discriminated against because of being single (ACT and SA), single male (WA), a gay couple (WA), or a same sex couple (SA) in the ability to obtain through the court a surrogacy order, then we run into trouble. While there is clearly discrimination, if it is not in breach of the Sex Discrimination Act, then a doctor might be compelled to provide treatment, but be told by the regulator that IVF cannot be provided in surrogacy (such as WA).

The sooner the ACT, WA and SA get rid of their discriminatory laws concerning surrogacy, the better. Intended parents should not now be trapped between these two laws.

6th anniversary of the LGBTI Legal Service

On Friday night I spoke at the 6th anniversary of the LGBTI Legal Service in the ceremonial Banco  Court of the Supreme Court of Queensland. The court was packed, with about 200 in attendance, and many of the "great and the good" in the words of former High Court Justice Michael Kirby, who was the guest of honour. Those in attendance included Queensland Chief Justice Catherine Holmes, President of the Queensland Court of Appeal Margaret McMurdo, Queensland Attorney-General Yvette D'Ath, other judges and politicians, lawyers and law students.

After a moving welcome to country by Uncle Sam Watson, who explained that what has been known since time of Captain Cook as Moreton Bay, has been to the local Jagera and Turrbal people as Qandamooka, proceedings were started by President Matilda Alexander.

Michael Kirby's speech

Mr Kirby talked of his opposition to the plebiscite. He pointed out that a plebiscite was not required for the removal of the white Australia policy, the ability to have Aboriginal land rights or other controversial issues at the time dealing with the interests of minorities. Parliament just went ahead and did its job. He feared for the impact of the plebiscite on the mental health of LGBTI people, especially young LGBTI people, because of the possibility of damaging debate occuring during the whole process. However, he expected that we would muddle through it and get it right, eventually legislating for same sex marriage and removing other discrimination.

He also talked about how in his fight for civil rights back in the 60's and 70's gay rights were not talked about. He did not come out until much later- indeed not until he was a judge of the High Court. His being gay and having a gay partner was hidden, and it was only the determination of his partner Johan that resulted in Kirby telling the world, via Who's Who, that he had a male partner and coming out.

A sad part of the speech was that there is no inevitability with the rise of gay rights. In Belize, a former British colony in central America, the Supreme Court has just held that the criminalisation of sodomy was against that country's constitution, which might help change things in the other 17 former British colonies in the Caribbean- all of which criminalise sodomy. In other places, such as India, things are not looking so good.

In Indonesia, the world's largest Islamic state and the world's largest Islamic democracy, there are moves to criminalise gay sex- apparently due to it being incompatible with Islam- when due to Dutch colonial laws it was never criminalised (as opposed to all British former colonies).

In Kenya, police are empowered to conduct internal anal examinations- to determine if illegal anal sex has occurred. As Mr Kirby pointed out- these "examinations" are not for any forensic or medical purpose- their whole purpose is to humiliate.

So it is essential to remain vigilant!

He thanked the volunteers, both lawyers and non-lawyers, for their efforts with the service. I was mentioned for my international work with surrogacy and The Hague (as to a proposed international surrogacy convention) and Justice Forrest of the Family Court was singled out for praise as he had been in a previous life a particularly diligent and warmhearted associate to then Justice Kirby of the NSW Court of Appeal.

My speech

My speech to the ceremony is here:

Not before time

6th anniversary of the LGBTI Legal Service

Supreme Court of Queensland, 19 August, 2016

I would like to pay my respect and acknowledge the Turrbal people, the traditional custodians of the land on which this event takes place and also pay my respect to Elders both past and present.

I want to start with a quote, by JS Mills:

“The demand that all other people shall resemble ourselves, grows by what it feeds on. If resistance waits till life is reduced nearly to one uniform type, all deviations from that type will come to be considered impious, immoral, even monstrous and contrary to nature. Mankind speedily become unable to conceive diversity, when they have been for some time unaccustomed to see it.”

This inability described by Mills to see diversity is something that my husband Mitchell and I, and other couples in same sex relationships have to deal with every day.

We married last year in Vegas. Elvis did not officiate. We had a dozen at the ceremony and 250 in four countries watching via streaming. Our marriage is not recognised here. This failure to recognise what is a basic human right- the equal right to marry- will remain until our laws change.

For those who married or entered into overseas civil unions and have now split up, there are other issues. Their relationship may not be recognised at home. Their ability to divorce or to end their legal relationship may only exist overseas, and may because of jurisdictional rules, not be available to them.

Everyday, or almost every day, Mitch and I are the objects of hate for doing something that comes very naturally to us. We have the “temerity” to hold hands in public. For that alleged brazenness, almost every day we are glared at. Sometimes it is the look of surprise or shock. More commonly it is the glare of hatred. The death stare. That look that tries to turn you into dust. How dare you? It is against the order of nature! This look is given by strangers- who don’t know us. Often it’s by someone walking past, holding hands with their opposite sex partner. The hypocrisy is obvious. We don’t give the death stare to opposite sex couples walking past, holding hands. Instead our reaction is to turn the other cheek and smile back.

But then about once every couple of weeks, that hatred is stated verbally. Homophobic remarks are used. Remarks I had never expected to hear in my lifetime, but for which we are expected to receive without comment. Well sometimes we comment back! This abuse has been for us surprisingly worse in Sydney and Melbourne than it is here- but nevertheless, it still happens.

And these looks and hate speech remarks are made anywhere. We have received them in the city, New Farm and the Valley, for example. There is no place where there is a protective bubble where you can say- people with homophobic and transphobic attitudes cannot walk the streets here. Nowhere is safe.

I dream of a day when bigotry and prejudice will be at an end and we all will be treated equally.

I dream of a day when we are not judged on our sexuality but judged on the content of our character. It is a sad reality that there is a need for the LGBTI Legal Service.

In 2009 I became aware of the new wonder of the age. It was proposed that there be an LGBTI Legal Service. I thought- not before time. I don’t claim any responsibility for organising it, but as soon as I became aware of the likelihood of a service, I grasped the idea with both hands.

More to the point I was then volunteering at Caxton Legal Centre and I quickly got the feeling of both being wanted and unloved. The then co-ordinator Camielle Donaghey told me of the intended service and told me excitedly that I should go there. In other words- we don’t want you anymore!

I decided to do all I could to make the service exist and succeed. What I did was to write. I wrote about the proposed service in a column I then had in Qnews. I wrote about it in my Australian Gay and Lesbian Law Blog. I wrote a list of all the lawyers I knew who might be candidates as volunteers. Then I wrote or telephoned each one of them to try and enlist them to join up. Happily, I was able to persuade quite a few colleagues to come and help out. Some stayed for some years.

Somehow by sheer good fortune on a night in July 2010 I was rostered on opening night. Also on that night were Caelli Lovell, a commercial lawyer, and two non-lawyers- Julie Howes who was the driving force, and the long time secretary - gracious Coral Logan.

The Queensland Aids Council generously gave its space for the service to operate. As it still does. This Service remains, despites its successes, the only unfunded community legal centre in Queensland. It operates on the smell of an oily rag. It exists through the generosity of its volunteers and of the Queensland Aids Council. Please give deep. Please tell politicians that it needs to be funded. Its service is essential to the LGBTI people of this State. But I digress.

So here we were on opening night- and we had an embarrassment. Well everyone else had two embarrassments, but I only had one. The embarrassment we all had was that despite all the hoopla we had no clients. Not one! It was pretty deflating- but the service has long gone past that problem. The embarrassment for the other three, but not mine, was that I turned up bearing gifts. Pink gifts, of course. One was a bottle of pink bubbly, and the other a lovely sponge with pink icing from the Shingle Inn. My cohorts that night looked at me oddly. My view was simple: this was an auspicious occasion and should be celebrated. However, in my rush from work, I had not bought any candles. The four of us then sat in this small room out the back, blew out the blackout candle that somehow had been found, ate the cake, drank the bubbles, and savoured the moment. But didn’t take a selfie!

I was privileged to continue to volunteer with the service until earlier this year, when other pressing duties on my time caused me to resign.

On World Aids Day, 1 December 2010, I was privileged to attend the official opening of the service by Michael Kirby, who came to Brisbane especially for the occasion.

Some years ago I was privileged to rally and march with other volunteers from the Service as well as many other community members in protest at funding cuts at what is again now the Queensland Aids Council.

I want to say what the Service stands for.

I don’t mean the literal, which is after all Lesbian, Gay Bisexual, Trans and Intersex- but more to the idea behind the Service.

What the Service stands for is one essential truth. That truth is the essence of our democracy- and that is that all of us, whatever our sexuality, are created equal, and therefore entitled to have the law treat us equally. The Service from day one has strived to enable this truth. It has done so by the provision of free legal advice- both in person, and over the phone. It has also done so by lobbying for change- so that the law should no longer discriminate against LGBTI people. There is unfortunately still a way to go.

Six years ago the idea of this party would have seemed an absurd idea. The hangover of the dark years of the past was still haunting us in Queensland. After all it was only in 1990 that sodomy was decriminalised in this State, by the Goss government, following the revelations of the Fitzgerald inquiry that keeping sodomy a crime meant that men were being blackmailed, resulting in the potential for corruption. These were the days when we were told that there would be no gay and lesbian mardi gras in Queensland- well, Pride march and fair are on 17 September by the way.

In 2000 the now member for Brisbane Central, Grace Grace was a union official. She took part in the writing of a new industrial award- to allow workers to take time off to care for their same sex partners. I got roped in to help with the drafting. We didn’t know at the time if the award would be accepted or if the sky would fall. The sky didn’t fall, and with that first baby step safely out of the way, the Beattie government then legislated to remove most of the State based discrimination against LGBTI people.

There is more to go. I was privileged a couple of weeks back to speak at the announcement by the State government to amend the Adoption Act so that same sex couples, single people and those undergoing IVF will not be prevented from undertaking adoption. A worthy step. Hopefully those laws will be passed by the end of this year and will receive support from the Opposition. Hopefully this year we will also see laws to remove gay panic defence, and the expungement of criminal convictions for those who were convicted of sodomy and like offences in the past. Not before time.

Now it looks as though, finally, Queensland will catch up with the other States, and have an equal age of consent. No longer will 16 be the age of consent for everyone else, but those engaging in anal sex, it has been 18. Doctors identified the obvious health risks from teens being driven underground and not seeking to prevent the spread of HIV. Again, not before time.

The removal of these discriminatory laws has not been a smooth ascent to the sunlit uplands of freedom. It has been necessary for us to fight to retain rights and to remove discrimination. Two examples of how rights were removed or were sought to be removed, because we don’t have a bill of rights or similar protection in this State (and hopefully will have one soon) occurred after the election of the Newman government.

In June 2012, the then Attorney-General announced that the Government would roll back the surrogacy laws, to a bill earlier put forward by Lawrence Springborg- namely to criminalise gays, lesbians and singles for undertaking surrogacy, and to remove the recognition of the non-birth lesbian mothers as parents of their children.

Seven of us decided to take on the Government. We had three activists, an ex-advertising guy, a psychologist, a celebrity dog trainer- and me. I was told that I was being brave and foolish- after all the government had all the power, and the chances of success were close to zip. I said that given that my prominence in this area of practice, not to take action would be cowardice. I thought that the chances of our success were between 1 and 3%, but we had to take a stand. What was proposed was wrong.

We launched a petition. It was depressing. We got 5000 signatures to not change the law. A rival petition, supporting the changes, which said incorrectly that under the International Convention on the Rights of the Child that it was the right of a child to have a mother and a father, got 10,000 signatures.
Our strategy was simple- point out the absurdity of the proposals, engage with others to assist, and seek to delay the proposals.

But I was silly. After we launched publicly, the seven of us went to have lunch, when I said this stupid thing: “So who’s in charge after today?” It was one of those moments when I should have kept quiet. I was immediately elected as the convenor of Queenslanders for Equality.

The proposal to remove the rights of lesbian parents was dropped first- as it would have meant that Queensland was out of step with the other eight jurisdictions. A woman would not have been recognised as a parent at birth, but if the parties split up, she would have been recognised as a parent for the purposes of child support.

Next to go was the idea of up to three years jail for those who wanted to have children via surrogacy.

But the idea did not disappear, even despite the statement of the then President of the Queensland Law Society, Dr John de Groot, that the proposals represented a “miscarriage of justice”.

By April 2013, it seemed that interest in the issue had died. Phil Brown and I were the only ones still campaigning. On the Monday Phil sent me an email telling me that he was burnt out and couldn’t campaign any more. I understood where he had got to- but I then thought: “Oh great, me against the government.” The burden on my shoulders weighed even more heavily. It was depressing. And then three days later the story broke- the proposal to wind back the surrogacy laws had been put on the backburner. We had won!

One of the things that saddened me the most was that one of our league of seven had been vilified. Farmer Dave was a celebrity dog trainer who had been on Big Brother.  He had been a member of the LNP, but had to leave it because he felt excluded because he was gay. His natural tendency was to support the general philosophy of the LNP- for which some in the community shamefully vilified him. He copped a lot of abuse- from those who blamed him for being gay and supporting a government which was seen as attacking LGBTI rights.

And now we see how times have changed. Lawrence Springborg when he was Opposition Leader announced that the LNP would support expungement of criminal convictions and the removal of gay panic defence. When the Civil Partnerships Bill was debated earlier this year, the LNP allowed a conscience vote- and almost half the LNP members voted in favour.

But there is still much more to be done.

The LGBTI Legal Service is lucky to have the goodwill of the community supporting it, and of the local elected representatives: Councillor Vicki Howard, Grace Grace whom I mentioned before- and I want to mention the new member for Brisbane, Trevor Evans. Going into the last election, the electors of Brisbane had for the first time three candidates from some of the LGBTI spectrum. The Labor candidate was ex-Army officer Pat O’Neill, who is openly gay. The Veterans Party candidate Bridget Clinch had also been in the army and was the first trans candidate in Australia anywhere. The LNP candidate was also openly gay: Trevor Evans. Trevor was elected. Congratulations!

I have been privileged to be a part of the LGBTI Legal Service. The volunteers, both lawyers and non-lawyers, give their time up willingly. Clients have a myriad of legal problems- civil, criminal, discrimination and family law. The need for the Service is self-evident in my eyes at least, and for the hundreds of clients who have accessed it. Many of the clients who come to the service cannot afford legal advice elsewhere, or do not know where to turn. The Service has been at the forefront of helping clients and pressing for legal reforms- and may it continue for a long time to come, hopefully with some money! I would encourage as many here as possible to join as members of the service.

I want to finish with a poem:

Yeats (Cloths of Heaven)

Had I the heavens' embroidered cloths,
Enwrought with golden and silver light,
The blue and the dim and the dark cloths
Of night and light and the half-light,
I would spread the cloths under your feet:
But I, being poor, have only my dreams;
I have spread my dreams under your feet;
Tread softly because you tread on my dreams.