"Adoption Amendment (Same Sex Couples) Bill 2010 (No. 2)"
Category: Legislation and Acts
Created: Wednesday, 08 September 2010 23:30
Written by Alecomm2
Consideration in Detail
Consideration of the Legislative Council amendments.
Schedule of amendments referred to in message of 8 September 2010.
No. 1 Page 3, schedule 1. Insert after line 9:
 Section 45A
45ABackground information about prospective adoptive parents to be made available to birth parents
(1) If an application to adopt a child is made by a couple, background information relating to the couple that is obtained by the Director-General or principal officer in connection with the application is, at the request of the birth parents of the child, to be provided to the birth parents before any adoption order may be made in relation to that child.
(2) In this section, background information relating to a couple includes information about the couple's social and cultural background, religious beliefs, domestic relationship and living arrangements, but does not include any information that identifies the couple.
No. 2 Page 5, schedule 2.1, line 6. Omit "Nothing in this Act affects any policy or practice of an organisation or person providing adoption services". Insert instead "Nothing in Part 3A or 4C affects any policy or practice of a faith-based organisation concerning the provision of adoption services".
No. 3 Page 5, schedule 2.1. Insert after line 15:
means an organisation that is established or controlled by a religious organisation and that is accredited under the
Adoption Act 2000
to provide adoption services.
The DEPUTY-SPEAKER: Order! With the leave of the House I propose to deal with Legislative Council amendment No. 1 separately and amendments Nos 2 and 3 together.
Ms CLOVER MOORE (Sydney) [3.30 p.m.]: I move:
That Legislative Council amendment No. 1 be agreed to.
I stress to the House that we are dealing with amendments to a bill that has passed both this House and the other place, so these amendments seek to amend a bill that has already been approved. We are not voting on the bill now, we are voting on these specific amendments. The first amendment was moved in the upper House by Fred Nile, MLC, and will put into the legislation the current practice of providing relinquishing parents—birth parents—with background information about prospective adoptive parents including information about their cultural and social background, religious beliefs, domestic relationships and living arrangements. I support Legislative Council amendment No 1. Ms KRISTINA KENEALLY (Heffron—Premier, and Minister for Redfern Waterloo) [3.31 p.m.]: I note the comments by the member for Sydney. She is correct. Both Houses of the Parliament have approved this legislation and we are now considering amendments to that legislation. The amendment moved by Reverend the Hon. Fred Nile in the other place confirms what is already happening in the rigorous practice of the adoption process. I am therefore willing to support this amendment.
Mr FRANK SARTOR (Rockdale—Minister for Climate Change and the Environment, and Minister Assisting the Minister for Health (Cancer)) [3.32 p.m.]: I note the amendments carried in the Legislative Council last evening. I believe they were unnecessary but in order to try to resolve the matter I will seek to move a compromise amendment, of which I believe members have a copy. Before doing so I believe I should address some of the comments made, particularly by the Attorney General, in the Legislative Council, because I chose to be concise and brief when I moved my amendment here and I think I am entitled to respond to some of the issues that have been raised. I have much regard for my colleague the Attorney General. I even count him as a friend, which is why I will forgive him for using what I regard as exaggerated language in relation to the amendment I moved and which was carried by this House last week. Learned he and his department may be but the moral values of lawyers are neither superior nor inferior to the values of the rest of us, and this issue is about values, especially the values of the community. I will briefly outline our points of difference.
The Attorney's first assertion was that the amendment carried by this House provided a blanket exemption that would allow adoption providers to discriminate on any ground for any reason, including reasons not related to the best interests of the child. I disagree with this assertion for the following reasons. Any discrimination is constrained by the Adoption Act, which already expresses 19 principles and matters to be considered in making an adoption decision. The interests of the child remain paramount in the Adoption Act. The adoption authority, after all, is with the Supreme Court of New South Wales. The second assertion was that it derogates the important principle underlying the Adoption Act that decisions must be made in the best interests of the child. In my view removing the restriction of the Anti-Discrimination Act on the process of selecting suitable adoptive parents makes the pursuit of the best interests of the child more rather than less likely.
The third claim is that a future director general could remove the delegation to non-government service providers and institute guidelines that permitted discrimination or could be directed by a future Minister to introduce discriminatory practices in relation to adoption. I find this quite implausible, even if it is theoretically possible. I understand where the Attorney is coming from, but I find it implausible. It seems to me we would have to have a director general at some time in the future who lost the plot. We would then have to have a deranged Minister who chose to start discriminating against people for heaven knows what motivation.
Then, of course, there would have to be an acquiescing Premier, Cabinet and Parliament and a meek and mild media who might in 20 years still be obsessed with attacking the Labor Party rather than focusing on other issues. Of course, the Supreme Court would have to let it happen because it makes adoption decisions and there would have to be a community that just did not worry about it. It seems highly implausible. The community has become more sophisticated and in my view those issues would have resolved themselves given the primacy of the Adoption Act and the principles of that Act.
The fourth claim is that the good work that has been done in relation to anti-discrimination would be undermined. The exemption as currently drafted applies to any policy or procedure, organisation or person providing adoption services regardless of whether the policy is related to the adoption process. Then the Attorney cites employment practices as an example. I would agree with the Attorney General if this were true. The Attorney raised this with me and I consulted Parliamentary Counsel, who assured me the amendment I moved in this House last week did not extend to exemption of employment practices from the Anti-Discrimination Act.
I asked the Attorney General to confer with Parliamentary Counsel, which I believe he did. I also told him that if he remained concerned I was happy to instruct Parliamentary Counsel to amend my amendment to make it even clearer that the Anti-Discrimination Act still applied to employment practices of adoptions service providers. I received no such request, yet the amendment has been criticised on these grounds, which I think is pretty unfair, given that I have no point of difference with the Attorney on this issue. As I said, there is no difference of intent here, nor do I believe there is any difference in effect, but I was happy to accommodate that.
The fifth claim is that exempting adopting agencies from the provisions of the Anti-Discrimination Act does not make the preference or wishes of birth parents any more or less relevant to the assessment of what is in the best interests of the child. I disagree with this and that is why I will move an amendment shortly to address this issue. I believe that the search processes for matching a child with adoptive parents will be influenced by the operation of the Anti-Discrimination Act, which will in some circumstances diminish the likelihood that the wishes of the child's parents are being met. Therefore, I reject the Attorney's conclusion in this regard.
His sixth claim was that the exemption moved by this House may have the effect of diluting the pool of potential adoptive parents and therefore undermine the pursuit of the best interests of the child. While this conclusion has superficial appeal, further examination would reveal it is unlikely either to dilute the pool of prospective parents or undermine the pursuit of the best interests of the child. This is because if an adoption agency is unable to satisfy itself that the pool of prospective parents corresponds to the wishes of the birth parents and finds the situation would not be in the best interests of the child it is free to extend its search. There is nothing in the amendment carried in the Legislative Assembly last week that limits this from occurring. In fact, I think the converse is true.
The seventh claim was that the Adoption Act has regard first and foremost to the best interests of the child and has a secondary duty to the wishes of the birth parents. While the Adoption Act does provide that the foremost consideration must be the best interests of the child, which is why it should be the only Act at play here, it is wrong to say it imposes a secondary duty to meet the wishes of the birth parents. The wishes of the birth parents are merely one of 19 considerations in section 8 of the Adoption Act and it appears to be of low priority.
The final claim made by the Attorney is that all service providers, including the Department of Community Services, may if they so choose discriminate against whomever they wish for whatever reason regardless of what is in the best interests of the child and what the birth parents may or may not want. With respect, I find this to be quite fanciful. The Adoption Act contains a host of its own discriminatory criteria, the paramount one being that adoption must be in the best interests of the child.
I remind members that the custodians of this process are the Attorney General's own colleagues in the Supreme Court of New South Wales. The Attorney General raised issues about which he is concerned and I believe that those issues are quite legitimate. I respect the legal prowess of the Attorney General but I am a bit concerned about the fact that this approach represents unnecessary red tape and the interplay of two Acts when that is unnecessary. I intend to amend the Legislative Council's amendment with a view to establishing whether or not we can arrive at a resolution that addresses most of our concerns. In this regard I note that a reasonable number of members in the upper House—the ratio was 22 to 15—agreed to amend our amendment. I note also that there was a unanimous acceptance of that amendment in this Chamber.
Nevertheless, in the spirit of resolving a conflict between the two Houses, I could achieve 80 per cent of what I sought to achieve through my previous amendment by moving a subsequent amendment. I remind members also, in particular because of the spirited views expressed by the Attorney General in the upper House, that the Western Australian Act was passed some years ago. This provision was put in place some years ago and nothing has been brought to my attention to suggest that there is a major problem. I refer, finally, to the assertion that the amendment that was moved in this House would empower the bureaucracy and disempower the community. I believe the converse to be true. It is really about giving the community more of a say. For the reasons that I have outlined I will move an amendment that involves accepting the amendments moved by Reverend the Hon. Fred Nile and the Attorney General, which are in the sheet of amendments that has been circulated to members.
There are three components to that amendment. By adding a further provision to section 45, that is, section 45B, adoption service providers will have to satisfy the wishes of parents who place their children up for adoption, whether or not they are birth parents, provided it is in the best interests of the child and without having to be concerned about being caught by the Anti-Discrimination Act. That was my main concern and that is what I sought to resolve. I would prefer to remove the red tape and the clutter. However, given the concerns that have been expressed by the Attorney General and others that discriminatory practices might emerge other than the already provided for statutory discrimination in section 8 of the Adoption Act, I will move an amendment, even though I prefer my previous formulation. I move:
That the Legislative Council amendment be amended as follows:
Insert at the end of Amendment No. 1 the following matter (for insertion after proposed section 45A):
45B Consideration of wishes of parents consenting to adoption
(1) A general consent of the parent of a child to the adoption of the child, as referred to in section 53, may express the wishes of the parent as to the preferred background, beliefs or domestic relationship of any prospective adoptive parents of the child.
Anti-Discrimination Act 1977
prevents the Director-General or a principal officer of an adoption service provider from identifying (consistently with the best interests of the child) prospective adoptive parents who reflect those wishes in the adoption selection process under this Part.
Members should note that my amendment does not delete the upper House amendments and it does not delete the amendment moved by Reverend the Hon. Fred Nile: it simply adds a further section 45B. It does not delete or touch the Attorney General's provision, which is the faith-based exemption; it simply adds a further provision. As I said, it will achieve a substantial measure of what I sought to achieve, that is, when two parents or one parent has to adopt out a child for reasons that are unavoidable—whether or not they are birth parents is irrelevant—their wishes must be given more weight. If a service provider believes that it can satisfy the best interests of the child and also the wishes of the parents it should seek to do that. If it cannot satisfy the best interests of the child test the search can be broadened.
It might mean, for example, that someone might wish to adopt out a disabled child. It might be that only some people in the community are interested in taking disabled kids. This will enable service providers to target and address that issue. If it ends up in Supreme Court the Supreme Court will have to form the view that it is in the best interests of the child. This amendment will meet a substantial part of what I was concerned about. In the spirit of resolving the matter I have moved my amendment which will simply amend the Legislative Council amendment.
Ms CLOVER MOORE (Sydney) [3.45 p.m.]: We are amending the amendment of Reverend the Hon. Fred Nile, MLC. I believe that this amending amendment describes what is happening in practice. As it does not impact on the intention of my bill, I am happy to accept it.
Mr RICHARD AMERY (Mount Druitt) [3.45 p.m.]: I support the Legislative Council amendment No. 1 and Minister Sartor's amendment to it. As the member for Sydney said, Reverend the Hon. Fred Nile's amendment in the upper House relates to existing practice. However, it recognises the role and the rights of a birth child. Minister Sartor's amendment adds to and clarifies that issue. As this amendment is not contentious I will not be voting against it.
Ms LINDA BURNEY (Canterbury—Minister for the State Plan, and Minister for Community Services) [3.46 p.m.]: I hope that all members are clear on this issue. The member for Sydney reiterated what this Government is doing. The amendment moved in the other place by Reverend the Hon. Fred Nile regarding disclosure of information about adoptive parents to birth parents confirms current adoption practice. Therefore, I have no hesitation in supporting Reverend the Hon. Fred Nile's amendment. Minister Sartor moved a further amendment in an attempt to confirm the right of adoption agencies to identify prospective adoptive parents who reflect the wishes of birth parents as long as the agency does so in the best interests of the child. I am happy to support that amendment. I reiterate that I support Reverend the Hon. Fred Nile's amendment and Minister Sartor's amendment to it.
Ms PRU GOWARD (Goulburn) [3.47 p.m.]: All members agree that Reverend the Hon. Fred Nile's amendment confirms existing practice. I think Minister Sartor's amendment also confirms existing practice. Some members might be uncomfortable with that idea. If we asked most parents, "Who would you like to adopt your child", I am sure they would say, "Somebody incredibly rich and very nice." In practice, I am not sure about the extent to which people can qualify who should adopt their children. In light of the contentious nature of this debate and the argument that fewer people would be willing to put up their children for adoption because of their fear that they might go to families with whom they are not comfortable, I support the amendment moved by Minister Sartor. Question—That the amendment to Legislative Council amendment No. 1 be agreed to—put and resolved in the affirmative.
Amendment to Legislative Council amendment No. 1 agreed to.
Legislative Council amendment No. 1 one as amended agreed to.
The DEPUTY-SPEAKER: The House will now consider Legislative Council amendments Nos 2 and 3. Ms CLOVER MOORE(Sydney) [3.49 p.m.]: I move:
That the House agree to Legislative Council amendments Nos 1 and 2.
The amendments to my Adoption Amendment (Same Sex Couples) Bill 2010 (No. 2) that were moved by the Attorney General in the other place resolved some concerns relating to the amendments that were included in the bill that was passed by this House during the consideration in detail stage last week. The initial amendment moved by Minister Sartor, the member for Rockdale, introduced a blanket exemption for organisations or persons that provided adoption services from the provisions in the Anti-Discrimination Act. These initial amendments aim to ensure that the anti-discrimination legislation will not interfere with the adoption agencies achieving what is in the best interests of the child. But I believe they go further than what this House intended to support. They enabled all bodies providing adoption agencies, not just faith-based adoption agencies, to discriminate on any ground, including race, age or religion, and to hold a discriminatory policy even if it is not in the best interests of the child and contradicts the wishes of the birth parents.
The initial amendments also allowed adoption agencies to discriminate in any business they undertake, not just in providing adoption services but also in employing staff and using contractors, for example. The Attorney General has moved new amendments Nos 2 and 3 to ensure that only faith-based adoption agencies will be exempt from the Anti-Discrimination Act and that the exemption applies only when agencies provide adoption services. He is clarifying what I believe this House attempted to do. The grounds of discrimination will be delivered to homosexual and transgender discrimination in line with what faith-based adoption agencies have requested. We are doing what the faith-based agencies asked us to do.
Under these amendments the best interests of the child will continue to be paramount in the consideration of adoption agencies over and above any provision in the Anti-Discrimination Act. We are dealing with what is most important in the interests of the child. Relinquishing parents who, I remind the House, do not provide a service and, therefore, are not subject to the provisions of the Anti-Discrimination Act, will continue to have a say on who their child is given to and on issues like marital status, religion and sexuality. I support the amendments and commend them to the House.
Mr RICHARD AMERY (Mount Druitt) [3.51 p.m.]: I oppose the amendments. I understand the member for Epping may move a further amendment to change some words contained in the amendments. This is the crucial issue of the day and perhaps is the reason I am angry about the handling of this particular matter last week. During consideration in detail on this bill last week the Minister, the member for Rockdale, moved an amendment that was supported by everyone in this House albeit somewhat qualified and about which some comments were made. However, on the voices everyone supported the amendment of the member for Rockdale. Why? Because that was the only way the bill, which I opposed, could leave this Chamber. I repeat: the bill left this Chamber only because we accepted an amendment by the member for Rockdale.
Ms Gladys Berejiklian: You did too.
Mr RICHARD AMERY: Yes, I did and then opposed the bill. I am glad you are reading Hansard. The amendment by the member for Rockdale states:
Nothing in this Act affects any policy or practice of an organisation—
I emphasise the words "of an organisation"—
or person providing adoption services ...
It then goes on to refer to the Adoption Act et cetera. I believe the member for Rockdale addressed a concern of many members in this place and in the community that this bill, although said mainly to be about the interests of the child, perhaps focused too much on the interests of the adopting parents. Many members have raised that matter and I believe that to be the case. The member for Rockdale moved an amendment that to a certain extent actually removes the Anti-Discrimination Act in the adoption process for any organisation or individual. This House passed that amendment. The member for Rockdale said:
The amendment removes the Anti-Discrimination Act from the adoption process, except with regard to the rights of children.
He then went on to say:
The amendment I have moved is similar to an amendment that was carried in Western Australia some years ago and has been in operation since.
He referred to a letter sent to him from CatholicCare in the Wollongong diocese:
In response to your request for urgent feedback on the proposed amendments I can state the following. In our opinion and from the legal advice received by Anglicare, the Amendments proposed by Frank Sartor are most welcome by faith based agencies.
I have said already that that amendment was a vehicle to get the bill out of this House. That was my opinion of what happened and it was also the opinion of other members. Clover Moore, the member for Sydney, at the end of her comments about the amendment of the member for Rockdale said:
I understand that the support for my bill by some members relies on this amendment and I will not oppose it.
We realise now from the mover of this bill that the reason the amendment was passed last week was to get the bill through the House and into the Legislative Council—a comment repeated on many occasions. Minister Burney said that the amendment preserved the main objective of the bill. Daryl Maguire, the member for Wagga Wagga, said:
I believe this amendment further strengthens the bill.
I supported the amendment and then, of course, opposed the final vote on the bill. I will call the Legislative Council amendment the Hatzistergos amendment. What does it do? Not much except insert some crucial words. The Hatzistergos amendment is not significantly different in wording from the amendment of the member for Rockdale. It states:
No. 1 Page 5, schedule 2.1, line 6. Omit "Nothing in this Act affects any policy or practice of an organisation or person providing adoption services".
They were the critical words in the original amendment. The amendment continued:
Insert instead "Nothing in Part 3A or 4C affects any policy or practice of a faith-based organisation concerning the provision of adoption services".
That is the subtle difference. This House addressed the issue about whether this bill is about the interests of the child or the parents. Mr Sartor's amendment clearly distanced this process from the anti-discrimination laws. The amendment of Mr Hatzistergos reinstates the Anti-Discrimination Act for all adoption processes except faith-based organisations, which had been addressed already by the Cabinet and the bill. The procedure was all too cute and I do not believe the amendment of Mr Hatzistergos should be supported. I will vote in favour of a foreshadowed motion by the member for Epping to reinstate some aspects of Mr Sartor's original amendment. I hope I have clarified the matter for the House.
Ms PRU GOWARD (Goulburn) [3.57 p.m.]: I support the Hatzistergos amendments for two reasons. The first is that discrimination law works best when the exceptions to it are construed narrowly. That is an absolutely essential part of anti-discrimination law. If we make it possible for a whole industry to be exempt, not just from sections 3A and 4C of the Anti-Discrimination Act, that means every ground of discrimination, which can include age, care responsibilities and many other things—
Mr Richard Amery: That is not in the amendment.
Ms PRU GOWARD: It is. That is exactly what we did last week. This is why this House should not do things in haste, but that is a discussion for another time. There were many months in which to prepare these amendments, but I leave that for now. If we pass the bill in its present form, if we do not accept the Hatzistergos amendments, basically we are sending a green light to any industry—the aged care industry, any industry—that wants to discriminate against any service, client or service provider because we would have now created a great big black hole in the anti-discrimination laws of this State. That would be a disgrace. My first ground for supporting the Hatzistergos amendment is that we must do this to preserve our effective anti-discrimination law, which is reflected in every State and Territory and at Commonwealth level. The second reason I support the Hatzistergos amendments is that I, as do other members in this House, regret that we passed it in haste last week. I regret amending the bill in haste last week in our anxiety to address the concerns of the faith-based agencies. It is a respected and accepted exception to discrimination law that faith-based organisations enjoy certain exemptions.
For example, under Commonwealth law religious faith-based organisations do not have to be equal opportunity employers of priests, much to the relief of the Catholic church and parts of the Anglican church. There are many reasons based on culture and tradition that faith-based organisations have always been entitled to exceptions in anti-discrimination law. In a faith-based country, irrespective of whether the faith is Islamic or Christian, we accept that as a general principle. We accept the role of culture, tradition and religion in this country's make-up. On that basis we are perfectly able to support the exception for faith-based agencies. However, not supporting others is a hugely retrograde step when it comes to anti-discrimination law. If that happens what will be next? There are a number of other industries that would be very happy to line up for a similar exemption.
Ms LINDA BURNEY (Canterbury—Minister for the State Plan, and Minister for Community Services) [4.00 p.m.]: I support the Attorney General's amendments, and my support is very much on the bases outlined by the member for Goulburn. For five years I was a member of the New South Wales Anti-Discrimination Board. I understand very well anti-discrimination laws, the history of those laws, and their significance. The debate of this legislation is very important, but what remains most important is the best interests of children. The most important objective remains the removal of discrimination against children of same-sex couples, by allowing both their parents to adopt them, and the protection of religious freedoms of faith-based organisations.
I have been the Minister for Community Services for 20 months. Along with other members of the House, I am deeply aware that the plight of some children in this State is absolutely desperate—it is beyond the imagination of most ordinary people. Essentially, my motivation throughout all of this is particularly to ensure that foster children who are in loving and stable same-sex families get their chance at absolute stability and proper recognition. Let us not forget the objective of this discussion. It is not about backing ourselves into different camps. It is not about getting cross and voting while being cross. It is about voting for these children. In my view part of that lies very much in supporting the Hon. John Hatzistergos's amendment, as outlined by the member for Goulburn, who knows about these matters in a very real way, to avoid opening up a capacity for further discrimination on any basis in the State. That is why support for the Hon. John Hatzistergos's amendment is so very important.
I urge all members to think about that, to think about how proud we are of our anti-discrimination laws in this State, how hard they were fought for, what they mean for decency and fairness, what they have done to support decency and fairness for many years, and, most importantly, the objective of making sure that we give children the very best chance in life. Rearing children is not about whether or not we are gay. It is about making sure that parenting adults love them, give them stability and give them a chance for a normal life. I urge members to think about those factors and support the Hon. John Hatzistergos's amendment.
Mr GREG SMITH (Epping) [4.04 p.m.]: I move:
That Legislative Council amendment No. 2 be amended by leaving out "Nothing in part 3A or 4C affects any policy or practice of a faith-based organisation concerning the provision of adoption services" and inserting instead:
Nothing in part 3A or 4C affects any policy, practice or genuine belief of an organisation or person concerning the provision of adoption services.
Although the issue was not put to a vote, in effect this House unanimously supported the amendment moved by the member for Rockdale, Frank Sartor. The reason is that this bill is a private member's bill, in contradiction of a promise made by the Minister that the Government would not be proceeding with recommendations of the Standing Committee on Law and Justice because of a split in the community. A large number of letters and petitions had been received indicating opposition to same-sex adoption.
The closeness of the two votes taken in this House reflected community concerns and there was no consensus on the issue. As the people's House we were reflecting the attitudes of people in our electorates throughout the State, not just the opinions of those who live in inner-city areas of Sydney. That is why the House acted prudently, in view of almost a majority of members who were against the bill, in accepting the amendment, thereby ensuring protection in the legislation from discrimination. One of the problems with discrimination that could occur, and why my amendment is necessary, is that people who are working for the Department of Community Services, Barnardos and other adoption agencies may well genuinely feel that it is in the best interests of a child to place that child with a married couple or a heterosexual couple because of background reasons. Equally, it may well be that there is a policy or attitude in the department that favours same-sex adoption. That is not so strange.
Many of us have tried to keep that issue out of the debate, but one wonders whether, as a result of some of the heat the issue gathered in caucus, it really is out of the debate. Some members, including the Minister for Education and Training, have a list of all the advantages that the Government and its predecessors, the Wran and Unsworth governments, achieved for same-sex couples. What does that have to do with adoption? Everyone said, "Oh, no, that has nothing to do with adoption. We are looking at the best interest of children." The reason I moved the amendment is that I believe the Hon. John Hatzistergos's amendment is just too narrow. He has taken out what we were after. He has removed anti-discrimination provisions that ensured relinquishing mothers and their husband or partner had a good say in what happened to their child because they love that child and do not want that child to go into a lifestyle that their family would not accept and that they would not accept.
All the members of this House are part of a family. All of us had a mother and a father: we are too old for IVF to have generated any of us. Most of us loved our mother and father, and most of them loved us. Why should employees of the Department of Community Services and Barnardos not be allowed to take into account that there are a lot of people who allow their child to be adopted but who want to make sure that their child has a mother and a father? Limiting the relaxation of anti-discrimination laws only to faith-based agencies discriminates against people working in other agencies: it does not give them the same rights.
As I understand it, the Attorney General heard Mr Sartor's amendment in caucus. I believe he would have heard it in caucus because I understand the amendment was discussed in caucus. He knew the implications of the amendment, yet he waited until the Sartor amendment was passed by this House so that he could get the bill across the line. He got the bill across the line.
Mr Michael Daley: He did not have much choice. He was in the other House.
Mr GREG SMITH: It was in the other House—that is true—but he has influence. And he had briefings with his staff. He was offering briefings. This is a private member's bill!
Mr Gerard Martin: It's a conscience vote, too.
Mr GREG SMITH: A conscience vote! When do we get briefings from a Minister of the Crown, using the prestige of his office, on his amendment? He has an agenda, that is, to push for same-sex things, which he is entitled to do. However, we are supposed to be dealing with our consciences, not a caucus decision or party policy. Our consciences will be satisfied if the Hatzistergos amendment is changed in the way I suggest so that any policy, practice or genuine belief of a person is respected. If people genuinely believe that it would be in the best interests of the child to assist a couple to find a similar couple why should they not be protected from any challenge as well? We know that challenges take place. We know that exemptions are tested from time to time. In the Wesley Mission case a gay couple tried to foster a child, knowing that the Wesley Mission did not allow same-sex fostering. That case has been to the Court of Appeal and it is going back there. If we do not protect staff and departments, as well as faith-based organisations, there will be further testing of discrimination in terms of whether proper attitudes have been applied.
Ms CLOVER MOORE (Sydney) [4.11 p.m.]: I oppose the amendment moved by the member for Epping to the amendments of the Attorney General because it is far-reaching and it allows for discrimination by all adoption agencies, including the Department of Community Services. Only faith-based agencies have asked for an exemption from anti-discrimination legislation on the grounds, as we have just been reminded, of the religious beliefs of those organisations. The amendment moved by the member for Epping is unnecessary and inappropriate. It may be contrary to the wishes of the relinquishing parent and it may not be in the best interests of the child. The Legislative Council's amendments—that is, the amendments by Fred Nile and the Attorney General—plus the one from the member for Rockdale, which we have agreed to, will ensure that faith-based agencies do not have to provide adoption services to same-sex couples and that relinquishing parents will not be forced to give up their children to same-sex couples. I urge the House to reject this amending amendment.
Mr RICHARD AMERY (Mount Druitt) [4.12 p.m.]: First, I ask members, particularly Labor members, not to judge the amendment moved by the member for Epping based on his political references, attacks on our caucus and other such matters. I support his amendment and its wording, and I do so for several reasons. I shall put a few matters before the House. First, I wanted to see the bill defeated when we voted on whether it should be agreed to in principle. However, the bill was passed by this House: that debate is over. The bill got through this House and through the Legislative Council. Second, I wanted to see the bill that left this House last week become law. Although I knew how I would vote on the bill, many members were torn because of the Sartor amendment. I have spoken with the Clerks and received advice on whether we can simply vote down this amendment and move another amendment. However, I discovered that the amendment moved by the member for Epping more or less restores the content of the Sartor amendment: there is hardly any difference in the wording. Therefore it would simply complicate matters if I moved an amendment with similar wording to that of the member for Epping. That is why I am supporting a Liberal Party member of this House. In effect, the member is simply restoring the original amendment. I challenge the member for Goulburn to write on a whiteboard or blackboard the words of the member for Rockdale and the Attorney General and to fit in all the doom and gloom she put before the House about the implications of the amendment of the member for Rockdale. It is absurd. Basically, the difference is faith-based organisations as opposed to organisations. The member for Rockdale can speak for himself, but he addressed the issue raised by the member for Goulburn last week before a majority of members voted for the bill. So let us not have any nonsense about blood running in rivers and curses on first-born children should an amendment moved by the member for Rockdale become part of the Act. We voted on that last week. The member for Sydney and the member for Goulburn suggested that the adoption process already involves some discriminatory practices. The Adoption Act is probably one of the most discriminatory Acts and processes that we could ever have. Can two 70-year-old people on good incomes, in a stable home, with a great job and $1 million in the bank adopt a newborn baby in New South Wales? Of course not. Why not? Because of their age. Ms Pru Goward: Actually, grandparents do. Mr RICHARD AMERY: The member for Goulburn knows what I am talking about. During the adoption process the potential parent or parents are assessed on whether they would be suitable. Age, stability of family life and income—in other words, all discriminatory considerations—are assessed to ensure that adoption is in the best interests of the child or that at least the child gets the best start, although we know that sometimes people's lives change. However, we have already passed the bill so that debate is finished. I do not believe the arguments put forward by the member for Goulburn and all the doom and gloom that has been spread around this place about the original amendment of the member for Rockdale have any validity. As a personal explanation to Labor members, I support the amendment moved by the member for Epping because it is the closest thing to the original amendment of the member for Rockdale. If the amendment of the member for Epping is defeated I will vote against amendments Nos 2 and 3 from the Legislative Council—known in this debate as the Hatzistergos amendments. Overall, I reject the doom and gloom spread by the member for Sydney and the member for Goulburn and I support the amendment of the member for Epping. Of course, if the amendment is defeated I will oppose the Legislative Council amendments.
Mr BARRY O'FARRELL (Ku-ring-gai—Leader of the Opposition) [4.17 p.m.]: I remind members that this debate involves a conscience vote. Member with strongly held views will shape their vote according to their beliefs, their political philosophies, and their assessment of the views of the communities they represent. I supported the original passage of this legislation partly because of two amendments, the first of which exempts faith-based agencies. As I said in my contribution to the agreement in principle debate, I believe it is appropriate that the faiths that exist across our religion should be entitled to practise those faiths and not be forced by the State to do otherwise. I also voted for the amendment moved by the member for Rockdale, although for me it was about the consent of birth parents. The House has just passed an amendment that respects parental wishes. I am happy with that.
As much as I admire and respect the member for Epping, and as much as I acknowledge at least the legal skill of the Attorney General, this must not be allowed to become a he said, she said legal debate, absent the views of the child. Therefore, I cannot support the amendment moved by the member for Epping. I do not believe it will allow faith-based agencies to practise what they believe. For instance, it would have protected Wesley Mission from the case that has been brought against it. I have enormous sympathy for Wesley Mission and I am pleased that, belatedly, the Attorney General sought to intervene in order to assist it. I say to the member for Mount Druitt that we should not try to use debate on this amendment, no matter if we start each sentence with the claim that we are not redebating the bill, by rehearsing all the arguments against the bill. Let us just address the amendments and vote according to our conscience and not cloud the issue.
Mr FRANK SARTOR (Rockdale—Minister for Climate Change and the Environment, and Minister Assisting the Minister for Health (Cancer)) [4.20 p.m.]: I will briefly clarify a couple of matters. I will not support the amendment moved by the member for Epping because in my view it is a poor imitation of the amendment I moved last week. It seems to focus just on same-sex, homosexual and transgender couples. My amendment was much more generic and basically said that under the Adoption Act 17 matters and principles have to be followed. A Supreme Court judge will stand guard on the process and responsible agencies have a delegated authority through the Director General of the Department of Community Services, and they should not be burdened by having to worry about all these other issues.
Adoption agencies and I were concerned, for example, that we might end up with a quota system and if they did not do enough of this type or that type they might end up somehow being seen to be discriminatory. I believe I am correct in that position. I say to the member for Sydney that I also believe my amendment did not affect employment practices. I got that assurance from lawyers. It was never my intention to affect employment practices and I believe my amendment would not have done so. I cannot accept the amendment of the member for Epping because it focuses on homosexual, transgender-type discrimination issues and broadens the scope beyond the faith-based organisations. My amendment was about having a primacy of the Adoption Act and adoption issues. The member for Goulburn may feel this is rushed but I spent three days working on the amendment. I discussed it with the Attorney General several times. I made two amendments based on his comments to me, including making sure that the child was still caught by the Anti-Discrimination Act. I would have made more amendments had the Attorney General kept engaging with me. I believe that we did have time to consider clearly what we were doing. I do not agree that it was something that I thought of on the way in because I wanted to have something to say. I feel very strongly about this issue. I dearly love my lovely kids. I have got two grown-ups as well. I have a very strong view about this matter.
I have said that I will support the Hatzistergos amendments not because I agree with them but because a representative democracy is fundamentally about compromise. The upper House has expressed a clear view one way—its members are probably more stubborn, and less sensible and balanced than we are. Some people even refer to them as an unrepresentative something or other, but I would never repeat that. It has expressed a strong vote in a certain direction. I thank Parliamentary Counsel for his hard work for all members, and with his help I have formulated an amendment that at least achieves a situation different from current custom and practice so that the wishes of people adopting out their children, birth parents or otherwise, can be now considered and acted on without having to worry about the Anti-Discrimination Act. That is why I will support the upper House amendments, even though I do not actually agree with them.
Mr GREG SMITH (Epping) [ 4.23 p.m.]: Could I just change my— Ms Linda Burney: Are you changing your mind? Mr GREG SMITH: No, I constantly give review to these matters but I have not changed my mind. I inform the House that in two places "this" before "part 3A" should be deleted from my amendment as originally drafted. If my amendment is passed I foreshadow that I will move a consequential amendment to amendment No. 3. Ms LINDA BURNEY (Canterbury—Minister for the State Plan, and Minister for Community Services) [4.24 p.m.]: I will not rehash what I said earlier. However, I say clearly that I do not support the amendment of the member for Epping, and that is enough said, sir. Mr DARYL MAGUIRE (Wagga Wagga) [4.25 p.m.]: I said that I would support the amendment moved by the member for Rockdale and the bill on the proviso that the amendment was successful. It was passed in this House by just two votes. I have listened intently to this debate. Some members have said that the amendment moved by the member for Rockdale will open up all sorts of claims by other groups. If the provision is so bad why has that not happened in Western Australia? This legislation is a mirror of that of Western Australia, where that has not happened. This House agreed to the broad amendment moved by the member for Rockdale. I say that we should reject all these amendments, including the amendment of the Attorney General, and stick with the one that we agreed to. If a problem occurs we can send it back to the Legislative Council and if agreement cannot be reached this Parliament has mediation mechanisms to sort it out. I support the original amendment moved by the member for Rockdale and I urge other members to do the same.
Ms KRISTINA KENEALLY (Heffron—Premier, and Minister for Redfern Waterloo) [4.26 p.m.]: I support the amendment moved by the Attorney General in the Legislative Council and oppose the amendment moved by the member for Epping. I do not intend to canvass all the arguments as they have already been canvassed. In relation to what the member for Wagga Wagga said, I am advised that the difference is that there is only one adoption agency in Western Australia and it is provided by the State. That is a clear difference between our systems and may account for the differences that the member says we should examine. I say we should be mindful that we are not talking about a comparison of apples with apples in relation to New South Wales and Western Australia but about a comparison of apples and oranges. Last week a number of members spoke to the bill and to the amendments moved by the member for Rockdale. Both Houses of Parliament have expressed a view that the Adoption Act should be amended to allow same-sex parents to adopt. We are now debating—as we debated with the amendment last week and with the amendments in the upper House—how an exemption should be provided to faith-based organisations. Nobody on either side is credibly arguing that an exemption should not be provided to faith-based organisations. I looked at the speeches last week and I interpreted that members who wanted to support the amendment to the Act clearly accepted wholeheartedly that an exemption should be provided to faith-based organisations. Some members who spoke in the debate on the amendment made clear that, while they may not support the amendment to the Adoption Act, they support an exemption to be provided for faith-based organisations. We are now debating precisely the form that exemption should take. We are all trying to grapple with what may or may not be consequences that might flow from how that exemption is structured. I have not yet heard anybody substantially argue that there should not be an exemption provided for faith-based organisations. In this debate on the amendment we should bear that in mind. The risk is that an amendment to the Adoption Act that was passed in this Legislative Assembly and the Legislative Council now risks failing because we are having a debate over the form an exemption should take. I understand and respect that there are various views about how that exemption should be provided. We have heard very clearly from the movers of amendments, particularly from the member for Rockdale.
I remind members that we are voting on something we primarily all agree with: that there should be an exemption for faith-based organisations. I urge members to consider the words of the Leader of the Opposition, that this should not become a debate about he said, she said, who said, which legal opinion prevails? We should all remember what we are seeking to do, that is, provide and support an exemption for faith-based organisations. How that occurs is the subject of this debate, but we should be very mindful that what is at risk is overturning the decision taken by both Houses of this Parliament. Ms PRU GOWARD (Goulburn) [4.30 p.m.]: I think there are a couple of points that we need to agree about. I agree with the Premier that everybody here is saying that faith-based organisations should be exempt, but the consequence of today's amendment moved by the member for Epping is that all adoption agencies be exempt. When we passed the amendment last week I think we all believed that this was about birth parents' rights to have some indicative say in what happened to their children. The amendment of the member for Epping, if passed, takes away the faith-based principle of exemption that has underlain the Anti-Discrimination Act. It very definitely does that. We are not now debating the adoption law; I think we have all agreed on the adoption law. We are now debating what sort of anti-discrimination law we want. I understand why my good friend the member for Epping has moved the amendment. He believes that individuals in those organisations have the right to express their conscience. If they have religious beliefs and they happen to work for the Department of Community Services they are denied the opportunity to reflect their views. That is true, but that is true in all forms of anti-discrimination law. It applies to organisations, not to individuals. If you work for an organisation that has as part of its principles of operation that it will not discriminate on this basis and you are a faith-based person who has contrary beliefs, you have every right to choose not to work for that organisation. That has to be the way that anti-discrimination law works or it would be unworkable because individuals could challenge the organisation for which they work.
Anti-discrimination law has always been based on the principles of organisations, assuming that people have free right of movement between organisations, so they can work for or be part of an organisation that reflects their values. Let there be no doubt: If a non faith-based organisation did not want to allow same-sex adoption it could just reconfigure itself as a faith-based organisation. There are lots of ways around it, if that is what the organisation wants to do. But this does not help the strength of the anti-discrimination law.
What we have to appreciate is the effect, in a sense inadvertently, of the amendments of the member for Rockdale last week and, for other reasons, the member for Epping today. There are other ways of dealing with the rights of individuals who work for non faith-based organisations. They have the right to withdraw from adoption or to seek employment elsewhere. But if we allow this exemption to be as broad as is proposed then I can see no reason why any company in New South Wales could not go to the Anti-Discrimination Board and seek similar changes to the law so that it can be reflected in its industry. And that is not fanciful. That is why the anti-discrimination law is always held to be as narrow in exemptions as it can be: in order to stop exceptions dominating the law. Anti-discrimination law must be based on general principles and not be driven by exemptions.
Mr JOHN AQUILINA (Riverstone—Parliamentary Secretary) [4.34 p.m.]: I refute explicitly the statement that has been made by the member for Goulburn in relation to the application of the Anti-Discrimination Act and how it may apply to any industry were this amendment to be passed. At the outset I say that it is with considerable regret that I was not in a position to participate in the debate last week. My views on these matters are well known and I take this opportunity to state them very strongly: I am totally opposed to the initial legislation. I felt, after reading Hansard, reading the arguments and discussing the matter with many members, that at least the amendment moved by the member for Rockdale in some way ameliorated some of the issues. I refute claims that have been made that, had I been present, my vote would in some way have affected the passing of the bill. In fact, members are aware that that would not have been the case, so I want to put that to bed.
I support the amendment moved by the member for Epping for a number of reasons. One is that, although this debate has come down to exemptions of faith-based organisations, I believe that the original intention of the member for Rockdale—and I hope I am not wrong in this—was to take that a little further. It was also to give some jurisdiction and rights to parents handing up their children for adoption in relation to being able to state who or what they wanted their child to be adopted to. I think it is important that we get back to that principle—that parents who hand up their children for adoption have every right to make a statement. Observing is one thing; giving organisations the opportunity and the legal right to make positive discrimination is something else. That is what the amendment moved by the member for Epping is all about, as I take it.
I think it is a very strongly held point of view that parents giving up their child for adoption should be able to mandate what type of parents they want their child to be adopted to and what kind of family they want their child to be adopted into, and that is basically what this is all about. That is what I understood the amendment of the member for Rockdale did last week, which we are now trying to change. I do not want to make this a long presentation, having come into the debate so late. However, I will be voting against the Hon. John Hatzistergos's amendment and, should that not be successful, I will vote for the amendment of the member for Epping.
Ms CLOVER MOORE (Sydney) [4.37 p.m.]: I remind the member for Riverstone that we are not dealing with Reverend the Hon. Fred Nile's amendment, which we have just supported. It ensures the current practice of providing relinquishing parents—that is, birth parents—with background information about prospective adoptive parents, including information about their cultural and social background, religious beliefs, domestic relationships and living arrangements. So what has just been expressed is already in the bill. It has already been agreed to in this House and in the other place. That is not what the member for Epping is putting up. The matters the member has just raised are already part of the legislation.
Mr GREG SMITH (Epping) [4.38 p.m.]: What I put up was a much milder wording of what the member for Rockdale put up. One would think from the response from some people who are opposing it that I have thrown the devil incarnate into the stadium, as it were. I am trying to stick to the amendment moved by the member for Rockdale, but limit it to the two parts of the Anti-Discrimination Act that the Hon. John Hatzistergos wants to limit it to. Why such outcry? As the member for Riverstone said, parents should have a say. This lets agency officers have a conscience. Why should they not have to work for a particular department because that department might slant adoptions a particular way? I am not accusing them of that, but it is always a possibility.
I am using the reverse of what the Hon. John Hatzistergos said. He said his fears about Mr Sartor's amendment were that some person might slant it towards the so-called redneck heterosexuals and start going against people on grounds of disability, race or whatever. Quite frankly, some might have said that was nonsense, but I would not say that. All I am trying to do is clarify the role of those who work outside faith-based agencies. Of course, my amendment includes faith-based agencies.
Ms LINDA BURNEY (Canterbury—Minister for the State Plan, and Minister for Community Services) [4.39 p.m.]: I want to try to bring this to a vote. Many members have spoken but I want to respond to the comments of the member for Riverstone because, with due respect to him, he is not right on this one. The existing practice is that birth parents are asked whether they want to be involved in the selection of adoptive parents. That happens now. They are asked about the kind of family they would like the child to grow up in. They are also able to make requests about issues such as religion, culture and the relationship status of the adoptive parents.
I ask members to listen to this. Birth parents already are part of the process and those are the things they can express a view about. I can assure members that their views are listened to. As I said, they are asked about the kind of family, about religion, and about the culture and relationship status of adoptive parents. The birth parents are given the opportunity to look at profiles of approved applicants judged as being suitable to parent their child. The non-identifying profile tells the birth parent about the adoptive parents' ages, family composition, educational levels, occupation, cultural background, religion, interests, hobbies and attitudes to post-adoption practice. It is absolutely there now. People really need to understand that. If the birth parents do not like any families being suggested they can ask to consider different families.
Giving birth parents background information about the adoptive family and involving them in the selection process are very important to the establishment of a positive future relationship between the birth parents and adoptive parents. It is about establishing that relationship and it goes to the very point that we are discussing—the best interests of the child. I can tell members from personal experience that you want to know who your parents are. This approach makes sure that it happens. I say to the member for Riverstone that that is what happens; it is the practice now. Openness and ongoing contact between the birth family and the adoptive family have proved to be critical to the adopted child's development and wellbeing. For those members who have doubts I can assure them that these things are considered very seriously in the adoption process.
Mr BRAD HAZZARD (Wakehurst) [4.42 p.m.]: As the former shadow Minister for Community Services I confirm, as the Minister for Community Services said, that that is how the process operates. I remind the House that we are concentrating on a very small group of children who go through the type of adoption process that seems to be the focus at the moment. As I understand it, that group numbers less than 20 in New South Wales. For that reason, when members are making their decision they should realise that in a sense what we are debating now is the tail wagging the dog, because the far greater number of people who will seek to use this legislation are those who in many instances include one partner who is the biological parent but has taken up a relationship with a person of the same sex. They number in the hundreds, at least, in New South Wales. Those are the groups.
Most of us would have had approaches as we struggled with our consciences on this issue. We know that in many instances there are people out there who are the biological parent of the child with whom they reside but they are now living with a same-sex partner. They want us to give them the right to let their partner adopt their child and in so doing give that child the certainty of maintenance and an entitlement to their estate if that person passes away. That is what we are doing.
I have the highest regard for the member for Epping. I have been delighted with his presence in the Liberal Party and in the Parliament, but on this issue I differ, with a great degree of consideration. I ask all members to think about only one issue: What is in the best interests of the child. That is the only issue—what is in the best interests of the child, not what is in the best interests of the parent who may be gay. Should that child have the capacity to look to that other person who is living in the house today, will be living in the house tomorrow and will be living in the house for years to come? Will we as a House and as a Parliament give that child the right to look to that person who is in the house with them—irrespective of anything we decide in this place that will continue—and allow the child to have a clear right to maintenance and to claim property entitlements against them, or will we be intimidated from following the right course?
Mr NINOS KHOSHABA (Smithfield) [4.45 p.m.]: I will be very brief. Last week I made my position very clear on the bill and it has not changed. The main reason for my stance is that I believe the best interests of the child should come first and I am opposed to the idea of same-sex adoption. However, I think this whole thing is a joke. We as members of Parliament and as legislators need to spend some time consulting with all interested groups, whether they are faith-based or community-based, and our constituents, and try to come to some agreement that is in the best interests of the child, not the adult, before trying to push this bill through. I believe this has not happened.
I place on record that I disagree with this whole bill and the amendments to it. I will continue to oppose this issue and any amendment. I believe limited research and consultation was done before this bill was introduced. If members are fair dinkum about this issue the bill should be voted down and withdrawn. If the people of New South Wales think that this is such an important issue a new bill can be introduced at a later stage after extensive community consultation and research. This is a much too important issue for us to just rush it through. The only move I will support is the withdrawal of this bill. I strongly oppose the bill.
The DEPUTY-SPEAKER: Order! Before I call the member for Hawkesbury, I draw members' attention to Standing Order 76, relevance. We are discussing the amendments before the House, not revisiting the bill. Members cannot revisit the entire debate; that will not be tolerated by the Chair. Members will confine their remarks to the amendments before the House.
Mr Ninos Khoshaba: Point of order: For the record, I was talking about the amendment. I said I would not support any amendment to this bill.
The DEPUTY-SPEAKER: Order! I have referred members to Standing Order 76. Members will abide by my ruling.
Mr RAY WILLIAMS (Hawkesbury) [4.47 p.m.]: I will be brief, too, recognising that we are considering the bill in detail and everybody can probably speak 6,700 times and we will probably be here until March 2011 if we do not hurry it along a little. I will support the amendment moved by the member for Epping because it is, as the member for Mount Druitt pointed out, close to what passed by this House last week. Whilst I certainly oppose the bill on the basis of the issues raised by the member for Riverstone, and support his comments, I appreciate the clarification by the member for Mount Druitt. Anyone who is keeping up with the amendments that have been moved would qualify as a NASA technician. The debate is getting very convoluted and difficult to follow. However, I will be supporting the amendment moved by the member for Epping for the reasons I have given.
As the member for Mount Druitt clearly pointed out, we made a decision in this House and I believe that was accepted because of the amendment put forward by the member for Rockdale, albeit it passed by only two votes. The bill left this House in that form and went to the upper House. The engineers in the upper House have unravelled it. As any good bus driver will tell you, if you want to get a tyre changed on a bus you talk to a mechanic, not to an engineer. An engineer starts at the roof and pulls out the lights and blinkers. The bill passed through this place after consultation with people in the community. I did not agree with the bill, but it has gone to the upper House.
Mr ANDREW CONSTANCE (Bega) [4.49 p.m.]: I contribute briefly in debate to state why the Attorney General moved the amendment in the upper House. The intention of his amendment was to remove the blanket exception that existed, which would lead to discrimination against people with disabilities and the elderly. I support the amendment moved by the Attorney General because it will remove that blanket exemption. I have been contacted by organisations such as the Council for the Ageing, which said that if the Attorney General's amendment was not agreed to it would lead to broad-based discrimination, in particular, against grandparent carers.
I draw the attention of members to an article in the Sydney Morning Herald that refers to Lucy Porter, a 78-year-old grandmother who is raising four children. She refers in that article to a "journey in ageism" when it comes to taking care of her grandchildren. I voted against the bill in principle but I will support this amendment because it will remove that blanket exemption—the unintended consequence of debate that occurred in this Chamber a week ago—and ensure that discrimination against people with disabilities and seniors is removed.
Ms CLOVER MOORE (Sydney) [4.51 p.m.]: I will not restate the points that have been made already in debate, but I wish to respond to one matter that was raised by the member for Smithfield about inadequate opportunities for consultation. I remind members that back in 1997 this matter was recommended by the Law Reform Commission and there has been a Legislative Council committee inquiry in relation to it. Three months ago I gave notice of my intention to introduce the Adoption Amendment (Same Sex Couples) Bill 2010 and it lay on the table for that whole period, which is a responsible approach when dealing with landmark legislation. I do not believe that all members consider this to be landmark legislation, but for the past three months the bill has been available for members to discuss with their communities. I hope that members will support this amendment to the bill, which has already been approved by both Houses of Parliament.
Ms VIRGINIA JUDGE (Strathfield—Minister for Fair Trading, Minister for the Arts) [4.52 p.m.]: Last week, when the Adoption Amendment (Same Sex Couples) Bill 2010 (No. 2) was introduced in this place, I spoke strongly about the intentions of the provisions in that bill and I voted against it. If this bill is passed it will be akin to throwing the Anti-Discrimination Act out the window. It is the view of some people that this bill will promote the rights of certain groups in the community—rights that they believe they should have. During debate on this bill members kept referring to the best interests of the child, a provision that is to be found in the Adoption Act and that has been there all the time. No effort has been made to remove that provision, so I do not know why members keep referring to the best interests of the child. Let us compare that phrase with the word "reform", which could be interpreted as "non-reform", or "voluntary reform", which could well lead to being non-voluntary reform. It is a nice term to use. No-one will disagree with the phrase "in the best interests of the child". I am sure that every human being wants to do what is in the best interests of a child or children everywhere. The original bill contained a bit of this and a bit of that and, basically, it was going to afford some groups certain rights. Ms Pru Goward: Point of order: Madam Deputy-Speaker, I remind you of your instruction to the House to debate the amendments.
Ms VIRGINIA JUDGE: I am talking to the amendments.
The DEPUTY-SPEAKER: Order! I uphold the point of order. I remind the Minister for Fair Trading that we are talking about a Legislative Council amendment relating to faith-based organisations.
Ms VIRGINIA JUDGE: It came to the attention of several members that the original bill and the amendments that were moved to it would breach the Anti-Discrimination Act. We do not want to breach the Anti-Discrimination Act, which was fought for long and hard by members of this Parliament and by members of the community. The provisions in this bill refer to a positive form of discrimination and state that specific subsets or religious groups should be exempted. I note that the member for Epping is nodding his head in agreement with me, and I am not even a lawyer. Those facts are glaringly obvious. I indicated that I would vote against this flawed legislative package when I contributed to debate on the bill. The amendment moved by the member for Epping, which is far too broad, covers anything relating to the provision of adoption services—for example, human resources and managing the Department of Human Services, which has a responsibility for employing staff to make adoption decisions. That department might decide, because of a religious belief, to discriminate against carers, homosexuals or married people who would be exempt from the Anti-Discrimination Act. How far should we go? If that is what we believe why do we not just take the Anti-Discrimination Act and chuck it out the window? If members vote against the amendment moved by the member for Epping and they vote for the amendments moved by the Attorney General in the other place, we will be faced with the original bill, which was amended, which I did not support. The member for Sydney included some amendments to the bill when she did not know what to do and when she wanted to ensure that she looked after those religious groups. This bill is fundamentally flawed, which is sad as it is an important bill. I cannot support these amendments.
Mr BRAD HAZZARD (Wakehurst) [4.57 p.m.]: I do not want to upset anyone, but is it appropriate at this point simply to put the question?
The DEPUTY-SPEAKER: Order! I was about to put the motion. Mr Daryl Maguire: Before you put the question, could you explain to members the consequence of a yes or a no vote so that they understand the process?
The DEPUTY-SPEAKER: Order! The House will vote on the amendment moved by the member for Epping. If that amendment is lost, there will be a vote on the amendment moved by the Attorney General in the other place.
Question—That the amendment to Legislative Council amendment No. 2 be agreed to—put.
The House divided.
Mr J. H. Turner
Mr J. D. Williams
Mr R. C. Williams
Mr R. W. Turner
Question resolved in the negative.
Amendment to Legislative Council amendment No. 2 negatived.
Ms CLOVER MOORE (Sydney) [5.07 p.m.]: I have been requested to remind the House about what we are voting on because some members were not present for the entire debate.
The SPEAKER: Order! I remind members that the member for Sydney is entitled to speak to her motion. I congratulate all members on their contributions to this difficult debate.
Ms CLOVER MOORE: I will briefly summarise the Legislative Council amendments before us. The Attorney General moved two amendments to ensure that only faith-based adoption agencies will be exempt from the Anti-Discrimination Act and that the exemption will apply only when agencies provide adoption services. The grounds for discrimination will be limited to homosexual and transgender discrimination in line with what faith-based adoption agencies have requested. Under these amendments the best interests of the child will continue to be of paramount consideration for adoption agencies over and above any provision in the Anti-Discrimination Act.
Question—That Legislative council amendments Nos 2 and 3 be agreed to—put.
The House divided.
Mr R. W. Turner
Mr J. H. Turner
Mr. J. D. Williams
Mr R. C. Williams
Question resolved in the affirmative.
Legislative Council amendments Nos 2 and 3 agreed to.
Message sent to the Legislative Council advising it of the resolutions. (Source : http://www.parliament.nsw.gov.au/prod/parlment/hansart.nsf/V3Key/LA20100909029?open&refNavID=HA8_1)