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

Mr Temporary Chairman, through you to Senator Xenophon—you got your answer from Senator Ludwig in the first sentence he uttered and then several times again during of his contribution. The government’s position is that the opposition’s amendment would not cause any substantive change to the law whatsoever. That is the answer, quite unequivocally, and of course the minister is right. Senator Ludwig and I seem to be in furious agreement about this. It is about terminology and messaging.

The opposition rejects as preposterous the suggestion that the opposition’s amendment involves any discrimination simply on the basis of sexual preference. Opposite-sex and same-sex de facto couples are treated identically, so it cannot logically be said that there is any discrimination against gay people in the opposition’s amendment. On the other hand the opposition makes no apology for treating marriage and de facto relationships as being categorically different. That does not mean that the consequences of the breakdown of such relationships may not be identical and that the treatment of the consequences of the breakdown of those relationships may not be identical. We make no apology for treating marriage as having, as I said before, a unique and privileged status. We note that the government has not sought to amend the definitions in the Marriage Act so we assume by application that the government agrees with us.

Through you, Mr Temporary Chairman, to Senator Xenophon—test the logic of what Senator Ludwig has said to you like this: Senator Ludwig says there is something wicked about not using the word ‘parent’. There are only three ways in which the law might acknowledge that a person is the parent of a child or that a child is the child of a person. Firstly, the most obvious case is if the child is the biological child of that person. If the child is the biological child of that person it is uncontroversial that that person is the parent of the child and the child is the child of that parent. You do not even need to say that in the Family Law Act for that to be a commonplace. Secondly, a child may become the child of a person who is not their biological parent by adoption. This amendment does not deal with adoption but we all know that when a child is adopted then for all purposes the adoptive parent becomes the same as the biological parent. I do not think this is quite the statutory language as elsewhere in the Family Law Act or the states’ statutes but he is deemed to be the parent and standing in the shoes of the biological parent for all purposes.

Thirdly, a person may be acknowledged as the parent of a child or a child might be recognised as the child of a particular person, other than biologically or through adoption, if for some reason the law declares it to be so. The law deems it to be so even though the child is neither the biological nor necessarily the adoptive child of that person. And that is this case of artificial reproductive technology where you have a situation in which the child is the biological child of another. There is no question about that. The mother is in a lesbian relationship with another woman and the law then deems that child to be the child of the other person in the relationship. It may well be, depending on what the state and territory laws permit, that that person will go on to adopt that child. But the operation of this provision does not depend upon the adoption because it deems the child, without the need for there to be an adoption, to be the child of the other person in the relationship.

Through you again, Mr Temporary Chairman, to Senator Xenophon—test the logic of the minister’s answer this way. Let us focus on the birth mother, the biological mother of the child. Does anyone seriously suggest that you need a specific provision in the Family Law Act to say that the biological child of a mother is the child of that mother so as to make the birth mother the parent of the child? Of course not. It is preposterous. You do not need to amend the Family Law Act to say that when a woman gives birth to a child she is that child’s mother, that child’s parent. Of course you do not. Therefore if you look at the opposition’s amendment, through you Mr Temporary Chairman, Senator Xenophon, subclause (c) says:

... the child is the child of the woman ...

That is the birth mother. We do not need to use the word ‘parent’ there. Nobody doubts what the biological relationship is. It goes on:

... and is deemed to be the child of the other person in the relationship ...

This is a person, who, it is a premise of this argument, is not biologically related to the child. So you do have to create a legal mechanism. You have to declare or deem it as a matter of law to be the case otherwise it would not be the case. That is all the opposition’s amendment does.