Births, Deaths and Marriages Registration Amendment Bill 2016


Debate resumed from 11 October; motion of Mr DALIDAKIS (Minister for Small Business, Innovation and Trade).

Mr RICH-PHILLIPS (South Eastern Metropolitan) — Since the change of government in November 2014, unemployment in Cranbourne, which is in my electorate, has risen by 30 per cent. There are 30 per cent more unemployed people in Cranbourne today than there were at the time of the change of government two years ago. Across Victoria crime is up 14 per cent just in the last 12 months. This week, as a consequence of this government's energy policies, its abhorrence of the longstanding strength of the coal industry in the Latrobe Valley and its ideology in support of renewable energy, we are going to see power increases next year of around 10 per cent for households and 13 per cent for small business. That of course is just the first impact of this government's policies on energy.

What we have not yet seen, though we are starting to, is the impact of this government's policies on energy security. We have seen the disaster at the Alcoa smelter in Portland, where a power outage last week forced the shutdown of one of the potlines. This is going to have major ramifications for that smelter and is going to have major ramifications for the future of the aluminium industry in this state and indeed for the future of Portland itself.

As part of the crime tsunami we are now seeing across this state and across parts of my electorate — —

Ms Pulford — Acting President, my point of order goes to the question of relevance. The legislation that we are debating, as I understand it, is the Births, Deaths and Marriages Registration Amendment Bill 2016, and the member has been speaking for a couple of minutes now but has in no way given us any reason to believe he has got his right set of speaking notes with him.

Mr RICH-PHILLIPS — On the point of order, Acting President, I have been speaking for slightly over 2 of my 60 minutes, and I am putting some context around this government's priorities.

The ACTING PRESIDENT (Ms Dunn) — Order! There is no point of order, given Mr Rich-Phillips is only 2 minutes into his contribution. I would ask Mr Rich-Phillips to continue and ensure that attention is given to the bill before us.

Mr RICH-PHILLIPS — Thank you, Acting President. As I was saying before the point of order from the minister, we have seen across the state in just the last 12 months a crime tsunami — a 14 per cent increase in crime statewide. We are seeing people who are scared in their own homes due to the home invasions we have been experiencing in Victoria over the last 12 months. We see Victorians who are scared to walk down the street because of the assaults and attacks and carjackings which have been occurring over the last year or so. These are the concerns of people in Victoria. They are certainly the concerns of people in my electorate.

Unemployment is up 30 per cent in Cranbourne, and locals — people raising their families — are concerned about whether their children can get jobs. They are concerned about how they are going to pay their power bills next year when the impact of this government's energy policies kicks in. People are concerned about the congestion on their roads. We have Infrastructure Victoria, a creation of this government, recommending against the construction of new infrastructure, recommending imposing tolls on existing infrastructure and telling people to ride bikes as a solution to the congestion issues in the south-east, including in Cranbourne. We have people concerned about having their wives and children walk down the street because of the possibility, which we are seeing all too frequently, of them being mugged or attacked, and people are concerned about having their cars stolen et cetera.

What we are not seeing are these residents in the south-east, these families, these people raising their children, coming and saying, 'We're concerned about changing our gender'. Yet we have a government that is so out of touch with the expectations and the ideals of the Victorian people that we have as a priority in this place this week the government putting forward a piece of legislation to facilitate gender fluidity, as if this is the issue that is of concern to the people of Victoria at their kitchen tables in the south-east of Melbourne. As they worry about rising unemployment, as they worry about the ability of their children to get jobs, as they worry about how they are going to get to work on congested streets, as they worry about whether they are even safe in their homes, they are not worried about changing their gender. Yet this government is so out of touch with the expectations of Victorians that we are seeing this legislation prioritised this week.

We are seeing this legislation prioritised after we have just dealt with — and I am very pleased to say this house defeated — the equal opportunity bill, which was an ideological attack on religious schools in this state.

Mr Finn — And religious freedom.

Mr RICH-PHILLIPS — And religious freedom in this state, Mr Finn. What we have with this legislation is also an ideologically driven platform that is not responsive to the expectations and ideals of the people of Victoria.

I will go to some of the detail of the bill later in this contribution. What this bill does is seek to allow people to change — and I will come to the mechanism — what is recorded on their birth certificate. A birth certificate is a fundamental document. It records the facts of a person's birth. A birth certificate is a historical document, and the keeping of registrations of births, deaths and marriages is one of the most fundamental undertakings of a government, of the state. It is in fact one of the oldest undertakings of the state. One of the original functions of government has been to keep records, keep registers, of their citizens' births, deaths and marriages — and it is a factual undertaking.

A birth certificate has long been a factual instrument which records the date of a person's birth, it records the biological parents — or at least where known, or in some cases the one biological parent where known — and it records the sex of the child as a fact of biology at the time a child is born. This has long been the case with birth certificates, back over centuries. As long as records have been kept, they have recorded the fact of a child's birth, when it occurred, where it occurred, who its parents are and what sex it is.

In more recent years we have seen legislation which has shifted the birth certificate as a factual record of a child's birth to a birth certificate as a social construction. This Parliament, on several occasions now, has passed legislation to alter the facts recorded on a person's birth certificate. In 2004 this Parliament passed legislation to allow an unmarried person who had undergone surgery to change their sex to change the sex which was recorded on their birth certificate. In 2009 this Parliament passed other legislation which allowed the birth certificate of a child who is conceived through assisted reproductive technology and is being raised in a same-sex environment by a same-sex couple to record the names of those two same-sex partners.

I must say that these departures from the construction of a birth certificate as a factual document to a social construct are things that sit uncomfortably with me, because a birth certificate is a historic record of the facts at somebody's birth. What the legislation of 2004 and 2009 has done is change birth certificates so that they are no longer recording the facts of a birth but rather recording the circumstances as a person would prefer them to have been. In those circumstances a birth certificate no longer reflects the actual facts of a person's birth.

In saying that, that is not to deny that children are being raised in same-sex environments. It is a fact that children are being raised by same-sex couples, where typically one person in that same-sex environment is a biological parent of the child and the other person is not. The fact that a child is being raised in that environment does not change the biology of the child. It does not change who its biological parents are. To create a social construct where a birth certificate is changed to reflect different parents as the parents, the same-sex couple, because they may wish that to have been the case or may have preferred that to have been the case, does not reflect the facts and the biology of that child.

Likewise, we do not deny that a small proportion of the population do not relate to the sex that they were born with. There is absolutely no doubt that that is a fact. There is also no doubt that for the people who do not relate to the sex they were born with, it would be a deeply felt and traumatic experience not to relate to their physical person. Such an experience and such a circumstance must be deeply felt and traumatic, because there is no other reason why people who find themselves in those circumstances would undertake these chemical and surgical treatments that many have felt necessary to create a sex that they better relate to. So there is no doubt that we have a small proportion of people in our community who do not relate to the sex they were born with and who have undertaken some very traumatic chemical and surgical procedures to create a gender or sex they better relate to. But that does not alter the circumstances and the biology of their birth, and mechanisms which allow for the changing of a birth certificate to reflect what a person might have preferred do not alter their biology.

This bill seeks to go much further than the current legislation because, as indicated, the legislation of 2004 allowed people who undergo surgery to change their sex and people who are unmarried to change the recorded sex on their birth certificate. This bill now seeks to remove the requirements for a person who seeks or applies to change the sex recorded on their birth certificate to have undergone surgery and to be unmarried. So if this legislation was to pass, the only requirement for a person seeking to change the sex recorded on their birth certificate would be that they indicate that they identify as the alternate sex they are looking to change to and essentially that there is another party who provides a statutory declaration indicating that they believe the person who is seeking to change the record of their birth genuinely believes they are of the sex or gender they are seeking to have recorded — that they genuinely hold that belief — and that the person providing the statutory declaration believes that to be true. So this bill is greatly expanding the scope and the capacity for people to change the recorded gender or sex on their birth certificate.

It is also allowing people to make these changes every 12 months. This is where the concept of gender fluidity has come into this debate. It is the notion that sex or gender is something that can constantly change, and it is something that could see people changing their recorded sex on a 12-month basis. This is something the coalition parties believe is a step too far. We do not believe that this legislation, as proposed by the government, reflects the values and expectations of the Victorian community. We believe that the mechanisms already in place under the Births, Deaths and Marriages Registration Act 1996, which were enacted in the last decade, provide for that small proportion of people who are in the situation of not relating to the gender or sex with which they were born, and we do not believe that this legislation should pass. It will be strongly opposed by the coalition parties.

We have a number of concerns with the way in which this legislation, should it pass, would work. Part of this arises from the departmental briefing, which was undertaken by the shadow Attorney-General, John Pesutto, in the Legislative Assembly, with the relevant departmental offices, when it was indicated that the impacts of these changes and the way in which they interact with commonwealth legislation has not been considered.

This is something of particular concern, and it is notable that when the 2004 changes to legislation in the Births, Deaths and Marriages Registration Act were made, which first allowed a person who had undertaken surgery to change their sex to change what was recorded on their birth certificate, provided they were unmarried, the then Attorney-General indicated that the requirement that a person be unmarried was in the legislation because of concerns the government had at the time that failing to have that constraint would conflict with commonwealth legislation, most notably in respect of the Marriage Act 1961, which provides that a marriage is between a man and a woman. There were concerns about how the Victorian legislation, if it allowed for married people to change their recorded sex, would interact with commonwealth legislation.

It is clear from the briefing that was provided that the impact and that interaction with the commonwealth legislation has not been considered by this government. It is a matter that certainly the previous debate on same-sex marriage has highlighted as a potential interaction as to what it will actually mean in the commonwealth context if someone seeks to change their gender on their birth certificate, either for the purposes of their marrying or while in a marriage, and particularly if they have the capacity to change it back, as has been provided for by this legislation.

We are also concerned that the basis of a person choosing a sex for their birth certificate is entirely one of self-selection. The breadth of definitions and descriptions that a person can assign is extreme. It is not simply choosing between the recognised designations of male, female and any other sex or indeterminate sex; in fact the legislation as drafted would allow a person who is using this provision to take basically any description they want, because the bill describes the sex descriptor, which is a term used in the legislation that is applied by this bill, as follows:

Sex descriptor includes—(a)    male; or(b)   female; or(c)    any other sex …I note that is an inclusion, not the limitation of what a sex descriptor is.

Mr Finn interjected.

Mr RICH-PHILLIPS — Mr Finn refers to there being 34 identified sex descriptors on the internet.

The bill indicates that there are some prohibited sex descriptors. However, the extent of those prohibited sex descriptors is very, very narrow.

The bill states:prohibited sex descriptor means a sex descriptor—(a)    that is obscene or offensive —that is straightforward —or(b)   that could not practicably be established by repute or usage—(i)    because it is too long; or(ii)   because it consists of or includes symbols without phonetic significance; or(iii)  for some other reason …

What that is saying is that with the exception of something that is too long or is a symbol without phonetic significance basically anything else can be used as a descriptor, which is an extraordinary proposition that this government is putting to the Parliament — that is, no longer are we to identify sex as male, female, indeterminate or other but that on this definition inanimate objects could conceivably be used as sex descriptors, which is simply extraordinary and not in any way in keeping with the expectations of the type of legislation that this Parliament should put in place.

One of the other elements of the bill is the capacity for similar provisions to be applied with respect to children on the basis that the parent or guardian of the child, in the belief that it is the child's intent or belief, could enact a similar change to the sex recorded on the child's birth certificate. Our concerns in respect of children are the same as our concerns in respect of adults using this provision, but I note that the bill does not even require the child in the first instance to indicate to the registrar of births, deaths and marriages that it is their intent that their recorded sex be changed; it merely requires a parent or guardian indicating that that is the child's position — that is, the child's intention as supported by the parental guardian would be sufficient to trigger the provisions of this bill. We think that is inappropriate, as we see the general thrust of this bill as being inappropriate.

One of the key things about this legislation is it highlights the priorities of this government and goes to my starting point around the concerns of the community and the issues that our community are currently engaged in. The crime tsunami they are having to deal with, the rising unemployment — certainly through the south-east — their inability to get around and their concern about their safety in their own homes and in walking down the street are all matters that this government has not addressed. Yet we see in this legislation — this little exercise in social engineering — that the government has made a special provision for prisoners, for people who are incarcerated.

At a time when we have seen as some of the first acts of this government a roll back of the parole reforms of the previous government, making it easier for juvenile offenders to get out on parole; a removal of the move-on laws that the previous government enacted; a failure to deal with the outbreak in juvenile crime we are seeing and have seen carried through to juvenile justice facilities; and a failure to enact and strengthen parole provisions as the coalition has called for, we are seeing that this government's priority in dealing with people in incarceration is to provide them with a mechanism to change the sex on their birth certificate.

Why is that the priority today in this last sitting week for 2016, rather than dealing with fixing up and tightening the parole system, which continues to be a problem in this state? Why are we not dealing with the no body, no parole legislation that the coalition previously advanced? Why is this bill, which allows prisoners to change their sex, the priority of the government rather than fixing parole? This again highlights the warped priorities of this government, which is completely out of touch with the expectations of the Victorian community. This legislation should not be the priority of this Parliament. It does not reflect the expectations of the Victorian community. The only thing we seem to be seeing from this government that deals with corrections and that deals with addressing issues in our prisons is that it is seeking to allow prisoners to change their sex, rather than fixing issues like parole, fixing issues like the Craig Minogue situation and dealing with the no body, no parole legislation that this Parliament has previously dealt with and the Labor Party voted against.

We believe that this bill is a step too far. We believe that allowing people to change the sex recorded on their birth certificate on a 12-month basis simply through self-selection without any of the requirements that currently exist in the Births, Deaths and Marriages Registration Act 1996 is inappropriate and does not accord with the expectations or values of the Victorian community. For those reasons, the coalition will be opposing this bill. We think the government is headed in the wrong direction with this. We absolutely accept that there are people in our community who do not identify with or relate to the sex they are born with; that is a fact, an absolute fact. There are mechanisms currently available to people who find themselves in that situation to take steps to establish a position that better reflects their feelings as to their sex, but this legislation is not the answer to that. This legislation is a step too far. It does not accord with community values. It does not accord with the expectations or frankly the priorities of the Victorian people, when the day-to-day real-life issues they are facing out in our community are not being addressed by this government. This bill will be opposed by the coalition parties.
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