George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Hansard source

I say through you, Mr Temporary Chairman, to Senator Xenophon that they are most appropriate questions to ask and I am very grateful that he did. Let me answer them. The first question you put, Senator Xenophon, is: would the opposition’s proposed amendment put a question mark on the issue of the legitimacy of children? I assume you are talking about children in de facto relationships. The answer to that question is, unequivocally, no—not even a possibility. I cannot begin to imagine what fanciful document Senator Pratt may have produced to you, Senator Xenophon, but if the document suggested that the effect of the opposition’s amendment was otherwise then it is pure rubbish.

The language that the opposition suggests, if I may read it, is that, in the circumstance of an artificial reproductive technology being used in a de facto relationship giving rise to the birth of a child, subsection (c) of the opposition’s proposed amendment states:

(c) the child is the child of the woman, and is deemed to be the child of the other person in the relationship …

It is also a given that the child is not the biological child of the other person in the relationship, so a legal connection has to be established between the other person in the relationship and the child. That legal connection is established by the use of the words ‘is deemed to be the child’. Senator Xenophon, I cannot remember if you are a legally trained gentleman or not, but may I tell you that a deeming provision—which is a very commonplace form of statutory usage, as you, Mr Temporary Chairman, of course know—applies subject to its terms for all purposes. So there is no possible set of circumstances in which the operation or the correct application of these statutory words could result in any result otherwise than the child being the child of the other person. So the answer to your first question, as I said, is unequivocally no.

The second question you asked is: does it put at risk the existing rights of heterosexual couples who have conceived through ART procedures? Again, for precisely the same reasons, the answer to your question is unequivocally no.

The third question you asked is, having regard to the legislation that may exist in some of the other states or territories, whether or not the government’s or the opposition’s amendments break new ground. I am not in a position to tell you what specific statutory words may have been used in other states and territories—and I imagine this is uncontroversial between the minister and me—but the whole purpose of this bill is of course so that the Family Court of Australia, or the Federal Magistrates Court, exercising family law jurisdiction, will be the sole court that will be seized of these matters in all of this range of circumstances. Because section 60H will cover children born as a result of ART into marriages, into heterosexual de facto relationships and into same-sex de facto relationships, that would seem to cover the field. So the Commonwealth legislation would overtake whatever might possibly be—though I am not aware of it—inconsistent statutory language in the states.