Saturday, 5 December 2015

Queensland Shadow Attorney-General speaks in favour of the Civil Partnerships Bill

Earlier this year I had the opportunity to meet the Queensland Shadow Attorney-General Ian Walker. My message was simple: many LGBTI people hated the LNP for what occurred while the Newman government was in power, and that if the LNP were to have any hope in getting back those voters, it needed to change.

Ian Walker and Opposition Lawrence Springborg by that stage had gone to the Brisbane Gay and Lesbian Business Network and said that the LNP would support ht eremoval of gay panic defence and the expungement of historical convictions.

Ian Walker's words to the House speak for themselves:

As the House knows, the LNP has decided to have a
a free vote on this issue. Although leading the debate as shadow Attorney-General, my speech,therefore, is that of my own opinions and not those of the party. Others will speak in the debate and express their views as well. I am proud that on this issue
our party has taken the free vote attitude. The Attorney-General made the point in her speech that this is a matter in which members of the community have differing and very strong views. I think the free vote that the LNP has allowed its members allows them to represent their views and their electorates in this place and to vote accordingly. I am proud of the decision that has been taken.
I also think it is important from the point of view of my party to make it clear that we have taken significant steps this year to ensure that we speak to the LGBTI community within Queensland. I was pleased to go with the Leader of the Opposition to a business breakfast organised by that community quite some months ago and to make it clear that in respect of a number of matters of concern to that
community the opposition was very keen to see the government move in a number of particular areas.They were areas such as the elimination of the gay panic defence and the elimination of historical convictions for homosexual activity that goes back to the days when that activity was illegal. My party has been keen to ensure that we keep discussions open with that community, while not always agreeing with that community or any other        community with which we need to speak to make sure
that we understand their concerns and respond appropriately to them.
I want to go through
the history of this measure to explain why I come to the position that I reach
on this bill today. The process started quite some time ago, going back to the law as
it related to what were then called de facto couples
-in those days, heterosexual couples
—trying to find a legal structure to deal with the legal rights and needs of people who were not married—who did not want to or who had not got around to going through
the ceremonial part of a formal marriage but who needed legal
protection by way of property rights and similar things. I suppose it started in that way of thinking and then moved more formally to the bill that the then treasurer in 2011, Andrew Fraser, introduced as a private member’s bill in the House. It was a fairly rushed, last
-minute measure that came in in the dying days of that government. It was not sponsored by the government of the day but was a private member’s bill which passed through the House.
In 2012 when the Newman government came to power, our side of the House relooked at that bill and there were some issues of concern to us at that time. The bill was amended to preserve the important legal protections for people who entered into a
relationship, be it a same-sex relationship or
a non-same-sex relationship, but it did remove, as the Attorney pointed out, the reference to the name of civil partnerships and the ceremony.
The reason that was done was that we were concerned at that time
that the ceremony and the name could lead to a mimicking of the marriage relationship. It is a bit difficult to put yourself back in those times, but at that stage the law was unclear as to whether marriage of same-sex couples was a
state responsibility or a federal responsibility. The definition of marriage in the Constitution was open to interpretation. It could be defined as only male-
female relationships, and therefore same-sex
marriage was a matter for the state, or it could be defined to include same-sex relationships. We felt at
that time that, because of that lack of clarity and the prospect of confusing the civil partnership ceremony
for a marriage ceremony, it was wise to remove those provisions. I voted for the removal of those provisions and I believe that was the correct thing to do at that time.
The situation changed on 12 December 2013 when the High Court considered the matter and unanimously held that marriage including same-
sex marriage was a matter for the Commonwealth
parliament and not thestates. I believe that reinforced the Newman government’s caution in the area, because it was not clear until that point where the constitutional ability to deal with same-sex marriage
arose. The decision means that the states cannot legislate or purport
to legislate for same-sex
relationships that are exclusive relationships for life
in other words, marriage
because they are the
responsibility of the Commonwealth. Any relationship that we regulate in this parliament can only be
one that does not fall with
in that category of a lifelong commitment
that is, marriage. This act,
therefore, deals with other relationships that do not fall within that category. If the state authorises a
3 Dec 2015
Relationships (Civil Partnerships) and Other Acts Amendment Bill
3175
ceremony for these relationships, it cannot be an exclusive commitment for lif
e. That, again, is marriage
and will be dealt with at the Commonwealth level. It is confusing. It is, however, legally the case.
Where are we now? The High Court
s position makes absolute sense. Marriage should be a
federal responsibility. People who commi
t themselves to each other for life should not have that
relationship recognised in one state but not in another. It is a sensible thing that the federal governm ent
cover the field in this area.
In relation to marriage, the Commonwealth government will dea
l with that
matter in the very near future. We know that the current federal government, should it win the next
election, has committed to a plebiscite in respect of marriage of same
-
sex couples. We know that the
opposition has committed to legislate in th
at area should
it
win the election. Within a reasonable period
of time the issue in relation to same
-
sex marriage will be resolved for Australia.
I disagree with the Attorney
-
General when she says that a sensible legislature would not wait to
see what hap
pens in that regard. I believe marriage is a very different issue from the one we are
debating today. Where the relationships that we are speaking about fit within the range of relationships
available to people is very much guided by whether or not same
-
se
x marriage is accepted in the federal
parliament. Let us say that same
-
sex marriage is accepted and ceremonies for marriage become the
norm for same
-
sex couples. One would think that would have some impact on the attitude you woul d
take to ceremonies at th
e state level. On the other hand, if same
-
sex marriage is rejected at the federal
level, you may take a very different view as to whether a ceremony was desirable or what sort of
ceremony it would be at the state level. My own view is that it would be sens
ible for this legislature to
wait to see what happens with the federal government
s decision on marriage and then to legislate
here. That would be what a sensible legislature would do, but that is not open to us because the
government has brought this meas
ure before us today. That means that we do have to make a decision.
That leads me to come to the decision that I have made. I do believe that the way in which this
has been brought to the parliament is premature and is designed to create some political con
flict over
this matter. I believe that, if the legislature were to wait to see what the federal government did, there
may be a way of moving forward in a more bipartisan way on this issue. Unfortunately, that is not to be
the case.
One thing that
is
c
lear
from
particularly the last year or so is that it has become an unfortunat e
part of our political system that citizens are caught in the crossfire of one party moving in and undoing
what another party has done. I am not saying that applies to one side
of politics only
; it
has been the
unfortunate nature of our political system.
As the Attorney pointed out, some 8,000 couples have
registered their relationship under this legislation since it was introduced in 2011
.
I am concerned that
their wellbeing
wil
l be
compromised by
the
political toing and froing over this issue
.
I found it difficult to come to
a
decision in relation to this bill for the reasons that I have set out. I
do believe it would be much more sensible to wait and see what the marriage arra
ngements
a
re and
then fit this bill in accordance with what the nation decide
s
, hopefully by plebiscite
, b
ut as I said that
does not look like it is going to be open to us
.
So I have decided to support the legislation and I am
doing so for three reasons.
The first
reason
is that I think it is very clear that what we are talking about now
and I distinguish
it from the situation in 2012
is not a circumstance where we are unclear as to whether this is about
marriage or not
.
Clearly it is not about marriage. T
he High Court has decided that the marriage issue
will be decided at
a
federal level. This is about relationships which are not marriage relationships, and
that makes the decision easier for me.
The second
reason
is that
, as
the Attorney pointed out
,
this
is largely about ceremonial and
symbolic matters
.
I am not saying that they are not important, but I am of the view that there is no
substantive change in the law in relation to
how
people
s relationships
are
affected, and I would find it
difficult therefo
re to stand in the way of it for that reason
.
The third
reason
, and perhaps the most important, is that if one ha
d
a heart
and
look
ed
at this
matter it
would be
unfair to keep those who are caught up in the political to and fro of our system in that
conti
nuing position. In order to resolve the matter in a way which does not in my opinion offend any
principles that I hold with respect to the substance of what we are doing, my intention is to support the
bill.
Mrs

Queensland allows civil partnerships again!

As I have blogged about several times for example, here, the Palaszczuk government has now had a major win in having civil partnerships laws restored to Queensland. The laws, originally enacted in 2011,  were wound back by the Newman government in response to lobbying from the Australian Christian Lobby.

I and others made submissions on the Palaszczuk Bill when it got to the committee stage, but then the LNP members took the unprecedented step in seeking to have the evidence and submissions suppressed! Luckily the ALP members saw fit to publish what I and the other witnesses had said.

When the Bill looked closer to being voted on, the chief architect of the winding back in 2012, former LNP Attorney-General Jarrod Bleijie, said that he would be voting in favour of the Bill! The LNP Opposition decided to allow a conscience vote.

The result was extraordinary, when it is remembered that the Palaczszuk government is a minority one. The Bill passed 64-22!

The need for civil partnerships legislation is obvious when one looks at the numbers. Attorney-General Yvette D'Ath stated, (contrary to expectation) that the  by far the largest number of couples wanting their relationships recognised were opposite sex couples: 6,856 heterosexual couples and 1,227 same sex couples as of 4 November.


I was lucky to be quoted in Hansard in the debate (although I was no making a submission on behalf of the Australian Lawyers Alliance- my submission was my own), and both my husband Mitchell and I were mentioned in despatches, in the speech by Grace Grace MP, who spoke in favour of the Bill:



Ms GRACE (Brisbane CentralALP) (12.11 pm): I rise proudly to support this bill. The main purpose of the bill is to fulfil our governments election commitment to provide couples of any gender with the equal choice of having an official civil partnership ceremony prior to having their relationship registered. I remember when this issue was debated back on 30 November 2011 and the glee that the LGBTIQ community had when it was finally passed in this House. It was a proud moment for me. The Queensland government at the time did all it could to pass laws registering civil partnerships. However, unfortunately a bill was debated on 20 June 2012 and was passed the very next dayat about 12.30 am, from reading the transcript of Hansardthat stripped away the rights to a state-sanctioned ceremony, changing the title of the act from civil partnershipsto registered partnershipsin an effort to remove any entitlements seen to be, in the words of the member for Mansfield, mimicking marriage. These actions, which caused significant hurt to the LGBTIQ community, are best described by a witness to the Legal Affairs and Community Safety Committee, Alistair Lawrie. He stated
The decision to abolish civil partnership ceremonies, and the haste with which it was achieved, was an unjustified, divisive and mean-spirited act and I commend the current Queensland Government for taking steps to undo the damage that was done three years ago.
I add that I may never have been able to quote this witness due to the unorthodox and exclusionary position of the non-government members opposite who would not support such evidence being part of the Legal Affairs and Community Safety Committee final report on the bill. I commend the government members for the statement of reservation and for providing the evidence they received from the community, which included personal narratives, and recognised the time and energy these witnesses put into their valuable submissions and evidence.
Ceremony and the right to hold one is important. Rituals are also important and so is the right to participate if one chooses. This is best summed up by the Very Reverend Dr Peter Catt from the Anglican Church when he said to the Legal Affairs and Community Safety Committee
A ritual is the event that gives the feel of reality to an event. For example, at St Johns Cathedral we have a burial register in which we record a persons death, but it is the funeralthe ritualwhich helps people to grieve and move through the grief process. ... This bill, through the reintroduction of ceremonies, offers the opportunity for social recognition for those to whom such a ritual will reflect the depth of their commitment.
I do not think I could have said it better. I also quote Mr Stephen Page on behalf of the Australian Lawyers Alliance. He stated
The ability to merely fill out a form without any public celebration of their love is short changing these couples in having that love celebrated with their friends and family, and, if they are religious, with God.
...
The key to the 2012 amendments was to deny that public celebration of love.
I believe no government has a right to take that away from citizens in this state.
Language, ceremony and recognition are important. If you do not agree, tell those from the LGBTIQ community who are in the gallery today and who were affected by the previous governments laws. I go on again to quote the Very Reverend Peter Catt where he puts it so eloquently. He stated
Language is humanitys most powerful tool and weapon, hence the saying "the pen is mightier than the sword". The change in language that was introduced by the 2012 bill, altering partnership to relationship, caused a lot of hurt.
I agree with him entirely.
I recognise the members from the LGBTIQ community who are in the gallery this afternoon and I welcome them. Unlike the actions of those opposite when their bill was debated in June 2012, the gallery will not be cleared. They will be able to stay there and they will be welcomed by this side of the House. There are some hardworking members of the LGBTIQ community in the gallery, and I acknowledge some of them. Some are not here but I acknowledge Phil Browne of the LGBTIQ Action Group, a tireless advocate for that community; Michael Scott from the Queensland AIDS Council; Stephen Page and Mitchell Shrimpton; Mr Emile McPhee of the LGBTI Legal Service; and, of course,
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Shelly Argent of PFLAGand I acknowledge Shelly in the gallery today as well as Phil Browne and Peter Black, who also form part of that team. There are many more in thereI see Richard and others who are in the galley and I acknowledge them all and say, Welcome to the gallery. You wont be cleared today. You will be able to stay until this is voted on and we get this up in the House today.
I take the opportunity to also acknowledge the work of the Transgender Support Association of Queensland. The president, Gina Mather, and the secretary, Kristine Johnson, of that association have worked tirelessly since its inception in 1990. On the weekend the ATSAQ had their Christmas celebrations at the Sporties in Spring Hill. I went along with my daughter. We enjoyed the show and the festivities greatly. I know the member for Chatsworth has these two members of that community in his electorate. They do exceptionally hard work in not only supporting members of the transgender community but in raising policy issues and issues such as equality for civil partnerships and in other areas of the law in this state. I thank Gina and Christine very much for all their hard work.
I take this opportunity to sum up by saying that this bill is about rectifying a wrong that was done in 2012. This bill is about reversing a mean-spirited attitude towards the LGBTIQ community that existed back then. Although I welcome those opposite who will cross the floor and join us today to vote in favour of this bill, I say that this governments bill is about addressing an inequality brought about by those opposite. This bill is about equality. This bill is about recognition. This bill is about respect and valuing members of the LGBTIQ community. I stand here once again proudly commending this bill to the House. I look forward to voting in favour of it.

Chief Judge Pascoe appointed to the Hague surrogacy working group

On Thursday Federal Attorney-General Senator George Brandis announced the appointment of Chief Judge John Pascoe AO CVO as the Australian delegate to the Hague working group considering an international surrogacy convention.

This was great news. This is an excellent appointment. The importance of this appointment cannot be overstated, as it may have implications about surrogacy in Australia for a very long time.

Who is Chief Judge John Pascoe?


The Chief Judge is the head of one of Australia's two national family law courts. The two courts are the Family Court of Australia, which is headed by Chief Justice Diana Bryant, and the Federal Circuit Court of Australia, headed by his Honour. At last count, the Federal Circuit Court had between 85 and 90% of family law filings nationwide. It is also the centre of bankruptcy filings and immigration filings, as well as some other civil jurisdictions. It is in essence a VERY busy place.

Last year the Chief Judge and the Chief Justice called for fundamental reform of how Australia regulates surrogacy. Their Honours said that there should be a Parliamentary inquiry into surrogacy, including the possibility of commercial surrogacy. They said there should be national, or nationally consistent laws, and the ban on residents in some States going overseas for surrogacy should either be enforced, or repealed, noting that the bans were not enforced, and to not enforce laws but have them for symbolism is to make a mockery of the law.

His Honour also has spoken at length about the appalling nature of child and human trafficking. He has described how children were packed in shoeboxes and shipped across the River Mekong. He is passionate about upholding the rights of children. As part of his commitment, he is a board member of a charity in Cambodia to protect children.

When there was an informal Parliamentary inquiry into surrogacy earlier this year, his Honour said that the importance for children was to be loved and have a good quality of care, and that the sexuality of the parents was not important. What was important was the care given to children.

What is the Hague working group?

Australia is a party to several Hague Conventions. These are conventions that are signed at The Hague, in the Netherlands. They are signed through Australia's membership of the Hague Conference on Private International Law. In essence there are two bodies that lead the way internationally in the formulation and signing of treaties and conventions- the United Nations, and the Hague Conference on Private International Law.

The conventions that Australia has signed up to include the Hague Child Abduction Convention (most remembered in Australia from the Italian fours sisters case, when their mother took them from Italy, to where they were eventually returned) and the Hague Intercountry Adoption Convention (which has been blamed in Australia for part of the reason that international adoption in Australia is painfully slow).

For several years now the Hague Conference has been considering as to whether or not there ought to be a convention on private international law concerning children (to include international surrogacy arrangements). The Hague Conference has delegated this work to the organisation that runs the Hague Conference on a day to day basis, the Hague Permanent Bureau.

The Bureau has organised early in the New Year a working group to get together of experts from throughout the world in essence to draft a convention. This is the working group to which Chief Judge Pascoe has been appointed.

We have one chance of getting this convention right. The implications for Australia in getting the convention wrong are huge. Australians are the highest per capita users of international surrogacy arrangements. Australians wander the globe to undertake surrogacy, currently going as far afield as the US, Greece, Canada, the Ukraine, the Republic of Georgia, Nepal, Mexico and Cambodia.

One model suggested is that the convention should be modelled on the Adoption Convention, which has been labelled a "success". Given the extraordinary amount of time that Australian intended parents have to wait to be able to adopt from overseas, I am fearful that a convention based on the adoption convention instead of being a "success" will in fact be an unmitigated disaster. Everyone's rights will be protected (which is a good thing) but with inordinate amounts of delay, red tape, cost and pain. The reality with the Adoption Convention is that Prime Ministers Rudd and Abbott have sought to reduce red tape with international surrogacy- and in Abbott's case signed bilateral agreements with overseas countries. If the Convention were viewed as a success, there would be no need for those bilateral agreements to exist.

As Australians are the highest per capita users of international surrogacy arrangements, the implications of getting the convention right are huge.

For the last few years, I have been one of two international representatives on the Artificial Reproductive Treatment Committee of the American Bar Association. I am the principal advocate and co-author with Bruce Hale from Boston of a draft paper by the Committee about the proposed Hague Convention. I hope to have the endorsement of that paper by the American Bar Association's House of Delegates in February.










Get ready for the House of Reps surrogacy inquiry

On Thursday Federal Attorney-General Senator George Brandis announced that there would be a federal parliamentary surrogacy inquiry. Hooray! This is something that I have spent considerable time and effort in pushing for. We need some sanity with our surrogacy laws.

The House of Representatives Social Policy and Legal Affairs Committee has to report back by June. Submissions are due by February. The committee wrote to me yesterday and asked me to make a submission. Talk about quick!

The terms of reference are very wide:

The House of Representatives Standing Committee on Social Policy and Legal Affairs will inquire and report into the regulatory and legislative aspects of international and domestic surrogacy arrangements, with a focus on:

  1. the role and responsibility of states and territories to regulate surrogacy, both international and domestic, and differences in existing legislative arrangements
  2. medical and welfare aspects for all parties involved, including regulatory requirements for intending parents and the role of health care providers, welfare services and other service providers
  3. issues arising regarding informed consent, exploitation, compensatory payments, rights and protections for all parties involved, including children
  4. relevant Commonwealth laws, policies and practices (including family law, immigration, citizenship, passports, child support and privacy) and improvements that could be made to enable the Commonwealth to respond appropriately to this issue (including consistency between laws where appropriate and desirable) to better protect children and others affected by such arrangements
  5. Australia's international obligations
  6. the adequacy of the information currently available to interested parties to surrogacy arrangements (including the child) on risks, rights and protections
  7. information sharing between the Commonwealth and states and territories, and
  8. the laws, policies and practices of other countries that impact upon international surrogacy, particularly those relating to immigration and citizenship
The Committee is comprised 5-4 Government/Opposition members. The Chair is George Christensen, National Party, from Queensland.

Tuesday, 1 December 2015

Today is World Aids Day

Today, December 1, is not only the official beginning of summer, but is also World Aids Day.

There are many events around the country being held today and the next few days. I will be at the event in Brisbane at 7pm tonight at Brisbane Square (Redacliff Place) at the top of the Queen Street Mall for the candlelight vigil to remember all those who have died from this nasty disease.

People keep being infected with HIV each year.Here are some facts and figures from the Kirby Institute about HIV:

The number of HIV infections newly diagnosed in Australia has remained stable for the past three years, with 1 081
cases in 2014, 1 028 in 2013 and 1 064 in 2012.
Based on these newly diagnosed cases, the main route of HIV transmission in Australia continues to be sexual
contact between men, which accounted for 70% of the cases in 2014.
A further 19% of cases were attributed to heterosexual sex, 5% to sexual contact between men and injecting drug
use, and 3% to injecting drug use only.
Among cases attributed to heterosexual sex, 23% were in people born in countries recognised by the UNAIDS as
having a national HIV prevalence above 1%, and 16% in people with sexual partners of people born in these countries
Based on tests for immune function, over a quarter (28%) of the new HIV diagnoses in 2014 were determined to be
late, in that they were in people who were likely to have had their infection for at least four years without being tested.
The proportion with late diagnosis was highest in people born in South East Asia (42%) and sub‑Saharan Africa (38%).
Based on 33 cases, the rates of HIV diagnosis in 2014 among Aboriginal and Torres Strait Islander people was
higher than in the Australian‑born non‑Indigenous population (5.9 vs 3.7 per 100 000).
In the most recent five year reporting period (2010 – 14), a greater proportion of HIV diagnoses in the Aboriginal
and Torres Strait Islander population were attributed to injecting drug use (16%) or heterosexual sex (20%)
compared with the Australian born non‑Indigenous population (3% and 13%, respectively) .
Among 242 women with HIV who have given birth in the five year period 2010 – 2014, the transmission rate to
newborns was 1.7%, compared to 32% in the period 1990 – 1994.
At the end of 2014, an estimated 27 150 people (range 24 630 to 30 310) were living with HIV infection in Australia,
of whom an estimated 3 350 (12%) were unaware of their HIV positive status.
At 0.1%, the prevalence or overall proportion of people in Australia who have HIV is low compared to other high
income countries, and countries in the region.
The HIV prevalence in 2014 was highest among gay men (17%).
HIV prevalence continues to be very low among people who inject drugs, at 1.7% in 2014 (or under 0.5% if men
with a history of male to male sex are excluded), and extremely low among women involved in sex work (no HIV
cases detected among 3 559 female sex workers tested).
Among the estimated 88% of people with HIV in Australia (range 83 to 92%) who were diagnosed at the end
of 2014, an estimated 73% (range 70 to 77%) were receiving treatment with antiretroviral therapy, with therapy
successfully controlling the infection (“viral suppression”) in 92% (range 84 to 97%). These three figures compare
well to the United Nations targets of 90%

Sunday, 29 November 2015

Bleijie supports gay marriage

Politics in Queensland are like nowhere else. We are witness to this just now with former Attorney-General Jarrod Bleijie announcing his support for equal marriage, and supporting civil partnerships. His action seems to have triggered the LNP for the first time allowing a conscience vote on the civil partnership laws.

The scale of this backflip is breathtaking. Back in 2012, Bleijie as Attorney-General got rid of civil partnerships, so that there were registered relationships instead. This all happened in about 48 hours, as it was considered "urgent" legislation. If that weren't enough, Bleijie then pushed to wind back the State's surrogacy laws, so that it would become a criminal offence if a gay, lesbian or single intended parent entered into a surrogacy arrangement; and he also sought to remove, alone of all the States, the recognition of non-biological mums in lesbian relationships as parents of their children. Thankfully his position then softened. Ultimately the Newman government deferred the surrogacy changes, never to be heard from again.

Bleijie was seen as the hard, uncaring face of government. His position was clear: children should not be conceived through surrogacy arrangements by gays, lesbians and singles- "because every child deserves a mother and a father."

Bleijie, who is also a marriage celebrant, sums it up when it comes to who can and can't get married:
“Marriage should be a statement of love and commitment between the happy couple; not an institution that rejects those who wish to enter it with the best intentions.’’


Monday, 23 November 2015

Queensland LNP allows conscience vote on civil partnerships laws

Queensland has at times the most extraordinary politics. Today Opposition Leader Lawrence Springborg announced that the LNP party room has, for the first time, allowed a conscience vote on the proposed civil partnership bill. 

This is just a few days after the LNP members of the committee examining the bill sought to prevent any report being written about the submissions made and evidence given, including by me. 

The pressure may now be on Premier Anastasia Palaczszuk to see if she now allows ALP members a conscience vote.
If she doesn't, the bill is bound to pass, even without the support of Speaker Peter Wellington and Independent Billy Gordon. 

We live in interesting times. 

Sunday, 22 November 2015

Wild, wild west- don't go to Cambodia for surrogacy

Today I came across a story from the Sydney Morning Herald about surrogacy in Cambodia.
I had heard some time ago that following the Baby Gammy saga, Thai clinics were moving to Cambodia.

Australia, according to Transparency International, is the 11th cleanest country for corruption. The US is number 17, and Cambodia is number 156, out of a possible 175.

In Asia, those previous places of surrogacy, India, Nepal and Thailand are rated as a lot less corrupt. In fact, the only places worse in Asia for corruption are Myanmar, Afghanistan and North Korea.

The infant mortality rate in Cambodia is over 10 times worse than Australia: about 42.1 per 100,000 live births. In Australia it is 4 per 100,000.

Anyone who goes to the Wild West, Cambodia, for surrogacy, is asking for trouble. Quite simply, they shouldn't.



Unmitigated Mexican surrogacy disaster

I hate surprises. When it comes to surrogacy (or other court cases for that matter) I very much believe in prevention is better than cure. I would rather clients tell me what the dramas are, in a candid manner, so that they can be planned and accounted for, rather than trying to fix up a mess.

When it comes to surrogacy, I like to plan the process at the beginning, using people I like and trust, who can assist my clients all the way through. For domestic surrogacy arrangements, this may be other lawyers, financial planners, counsellors and IVF doctors. I just want it to go right first time, or at least have the greatest chance of going right first time. And if it doesn't go right first time, to do what needs to be done to fix it- easily, quickly, and as cheaply as possible.

Any surrogacy journey can have dramas, which most of the time will be medical, but can be regulatory. For those going to developing countries, it is very much a case of buyer beware. Going overseas for surrogacy, with IVF and using an overseas surrogate, and often an egg donor, is one of the most complex ways of becoming a parent, and things can go badly wrong.

Doing surrogacy at home can be a truly beautiful experience, despite the hurdles, as seen here and here

Those contemplating going overseas ought to rethink about whether they can do so back home. For some people, such as singles, gay and lesbian couples living in South Australia, or single men and gay couples in Western Australia, at first glance they have little choice but to go overseas. However, it may be possible for them to undertake surrogacy in Queensland or New South Wales. The delay may be no greater than an overseas trip, risk is down and cost may be especially down. Domestic surrogacy arrangements can be as cheap as $25,000 to $60,000, which is usually a lot cheaper than anywhere overseas.

A good illustration of things going wrong is this terrible tale of an Australian couple going to Mexico in today's Sydney Morning Herald:

 "The list of problems included the destruction of our embryo by the clinic through an error in the freezing process and the mixing up of paperwork on transfer of embryos between clinics. We weren't even sure the embryos transferred in to the surrogate were ours for a period of time.
"In some ways we are glad this devastating experience is over, for us and also for the surrogate mother who didn't fall pregnant."
One laboratory report stated that the "technique used is terrible". The couple said that while the two clinics argue who is the least incompetent, they are heartbroken at seeing the photos of the destroyed embryo.
Mr Yii added: "We where given assurance by our Australian lawyer who did due diligence on a number of clinics that the one we were to use was 'the most professional and ethical clinic with the most experience in Mexico'. Clearly the best in Mexico has failed."

I was not the lawyer who advised this couple. 

Queensland Civil Partnerships Bill to proceed

Late last week the Queensland Parliament committee delivered its report into the proposed civil partnerships bill. What was not in the report was the main message- the Queensland LNP State MP's are firmly against the recognition of rights for LGBT people. No other message could be garnered- when they sought to censor the evidence of submissions to the inquiry.

I have given evidence to a number of Parliamentary inquiries. I will give my view of the world. I will be accepted, rejected or ignored, but I didn't expect that the LNP MP's would seek to prevent ANY of the submissions or evidence of ALL of the witnesses from appearing in the report.

The message is clear. Do not assume that a vote in favour at the plebiscite is a done deal. It should be assumed that there will be fierce opposition, and that the plebiscite will only succeed with organisation and determination.

There has been no statement by the Opposition about why they tried to censor what was said. The message was one that certain members of the Opposition did not want to hear: the submissions were overwhelmingly in favour of the change.

The vote was split evenly along party lines, which meant that the Committee was unable to reach a recommendation to Parliament. When I checked with my local MP today, Labor's Grace Grace, I was told in no uncertain terms that the vote would not prevent the Government from proceeding with the Bill. The Government qill be proceeding with its Bill. The silence of the Opposition members masked their opposition. Why didn't they just say that they were opposed to the changes?

This is what chair Mark Furner (ALP) said:

government members of the committee express their disappointment that the committee was unable to reach agreement on this Bill, or present the evidence provided to the committee from those who gave us personal stories about how this Bill if passed would change their lives.
 The ALP members set out the submissions and evidence to the committee. I am quoted here:

The Bill re-instates the opportunity for same sex relationships to have a public
celebration of their love.
Love is love. Those in same sex relationships are denied the ability to marry in
Australia. Their relationships are to all intents and purposes invisible.
Nevertheless, same sex couples wish their relationship to be recognised. The ability to merely fill out a form without any public celebration of their love is short changing these couples in having that love celebrated with their friends and family, and, if they are religious, with God.
The key to the 2012 amendments was to deny that public celebration of love. This short changed all the couples involved and as a result impoverished our society by not recognising, in an appropriate way, those relationships. The State should not be preventing those who wish to have the public celebration of their love by a means other than marriage from enjoying and cherishing that public celebration. Two autonomous adults should be able to make that choice without interference from the State.
An odd provision of the Relationships Act and it is continued under this bill is that a registered relationship is similarly [to its registration] ended by form filling.
Under section 18 the registrar of births, deaths and marriages is required to decide without any statutory criteria, other than possibly considering conflicting statutory declarations of the parties, as to whether or not a registered relationship has
ended. This function should not be left to bureaucracy but put in the hands of courts, as it was in the Civil Partnerships Act, where, if there is a conflict about whether or not a relationship has ended and when, it could be properly decided in an accountable way by the third arm of government to which appeals and proper processes are open to an aggrieved party.
Mr Page (a family lawyer) pointed out that the types of scenarios where there is disagreement about
the ending of a relationship relate to questions of whether the parties were in a relationship at all:
I can tell you that quite frequently there is litigation between couples as to whether or not they are in a relationship. Having a registered relationship or a civil partnership and certainly I prefer a civil partnership because of the ceremonial
aspect of it is essential because if the couple have done that then there is no dispute that they are in a de facto relationship and they might save, in the process I do not know
—$100,000 and $30,000 of Commonwealth taxpayers’
money. I know that is the Commonwealth’s, it is not the state’s, but nevertheless it is a saving to society. It is money that, instead of funding people like myself, could be put towards their children.

Mr Page indicated that the government had suggested QCAT was an option for reviewing decisions
made by the registrar, but considered it should be decided ‘...
in a court, make sure if there needs to
be evidence given there can be evidence given and a determination is made under law as to whether
or not the relationship has ended

Catching up with Michael Tiyce

On Friday I finally met one of my interstate colleagues- prominent LGBT family lawyer Michael Tiyce. In the nature of today's modern world, Michael and I have kept in regular contact- by phone, email and by Facebook, of course, but as he is in Sydney and I am in Brisbane, for some reason we had never met.

That was fixed on Friday, when I caught up with Michael and his associate Barry Apelbaum in Sydney. I was in Sydney to obtain a surrogacy parentage order.

Both Michael and Barry are keen on attending the LGBT Family Law Institute regional meeting in Brisbane on 12 and 13 March, 2016. This will be the first regional meeting of the LGBT Family Law Institute meeting in Australia, and the second outside the US (the first being in London in May this year).

Thursday, 12 November 2015

Victorian Bill to remove adoption discrimination

Later today, fingers crossed, the Victorian Upper House will hopefully pass laws to remove same sex discrimination from adoption laws in Victoria. The Bill has already passed the Lower House.

Currently half of Australia by jurisdiction, and greater than half of the Australian population, is subject to laws that prevent same sex couples from adopting children. Human Rights Commissioner Tim Wilson has called for the repeal of the laws. The discriminatory laws are in: Victoria, Queensland, the Northern Territory and South Australia.

The proposed change in Victoria will bring Victoria into line with those places that do not discrimination on the basis of sexuality in adoption: New South Wales, the ACT, Tasmania and Western Australia.  Despite the statements of the Chicken Little's of the world, the sky has not fallen in those places when they legislated to allow adoption by same sex couples. Queensland has also pledged to remove this discrimination and South Australia is reviewing how its laws discriminate against same sex couples.

The irony of the discrimination is that everywhere in Australia same sex couples are accepted as foster carers. If they are good enough to care for our most troubled and vulnerable children, why can't they be allowed to adopt?

When I say fingers crossed, I understand that the numbers in the Upper House are finely balanced, and the vote could go either way.














National surrogacy seminars

Surrogacy seminars in just over a week


In just over a week,  Families Through Surrogacy will be hosting surrogacy seminars throughout Australia- in Perth, Adelaide, Sydney, Melbourne and Brisbane.

I will be speaking at the Brisbane seminar on Tuesday 24 November, 2015. Other speakers include speakers from the Ukraine, Canada and Oregon.

Many Australians choose to go overseas for surrogacy, believing that it is quicker, easier and cheaper than back home. Properly organised, surrogacy in Australia should be cheaper and should be easier than going overseas, while providing legal certainty. The difficulties in organising local surrogacy usually revolve around finding a surrogate and an egg donor, and discrimination issues.

Local laws tempting people to go overseas


ACT

In the ACT those undertaking surrogacy have to be a couple, and the surrogate also has to be part of a couple. There isn't discrimination on the basis of sexuality. Fertility treatment must be in the ACT. Due to geography, these problems can usually quickly be avoided, as NSW does not have these restrictions.

Tasmania

Under the Surrogacy Act, all the parties must, unless a court orders otherwise, be from Tasmania. The problem is that the court makes the order after the baby is born- and therefore after the decision is made whether to go ahead with the surrogacy arrangement.

South Australia

SA discriminates against singles and same sex couples seeking surrogacy.

Northern Territory

The Northern Territory has no surrogacy laws. The effect is that IVF cannot be performed there, and those living in the NT have to go interstate or overseas.

Western Australia

WA discriminates against single men and gay couples. Single women, and lesbian couples can access surrogacy in WA.

Where there are legal complications if you decide to go overseas



If you choose to go overseas for surrogacy, then there is always a legal complication as to citizenship (assuming you are an Australian citizen) or visa conditions (assuming you are a permanent resident or NZ citizen living in Australia) and as to whether or not you are a parent.

On top of that there are State laws where it makes it complicated and potentially a jail term by accessing surrogacy overseas. Here is the State by State guide- current as of 12 November, 2015:

Queensland

Potentially you could go to jail for accessing surrogacy and/or egg donation overseas.

New South Wales

Potentially you could go to jail for accessing surrogacy and/or egg donation overseas.

ACT

Potentially you could go to jail for accessing surrogacy overseas.

Victoria

No complications.

Tasmania

No complications.

South Australia

Potentially you could go to jail for accessing surrogacy and/or egg donation overseas.

Western Australia

Potentially you could go to jail for accessing surrogacy and/or egg donation overseas. It is a crime for Western Australian lawyers to advise you about overseas commercial surrogacy.

Northern Territory

No complications.