Assisted Reproductive Treatment Bill - amendment re police checks

*** The following is an excerpt from the debate on the Assisted Reproductive Treatment Bill 2008, relating to Sue Pennicuik's amendment to remove police checks from the Bill.   Other excerpts from the debate may be found elsewhere on this website, or go to Parliament Hansard for the full debate.**

Ms PENNICUIK (Southern Metropolitan) -- Before I move the amendment could you, Deputy President, clarify whether it is a test for other amendments?

The DEPUTY PRESIDENT -- Order! In my view it is not.

Ms PENNICUIK -- I move:

1. Clause 3, lines 23 to 31, omit all words and expressions on these lines.

The amendment is to clause 3, which is the definitions clause, and would remove the definition of a child protection order under the Children, Youth and Families Act in regard to the provisions of the bill which require a provider of assisted reproductive technology to apply to the Department of Human Services to know whether an applicant has had a child protection order made against them. It foreshadows further amendments which I will move to remove provisions in the bill for applicants to have that child protection order check done and to have police checks done.

Mr DRUM (Northern Victoria) -- I support leaving in the legislation the provision for police checks to be done, and will not be supporting the amendment.

Ms Pennicuik's amendments down to amendment 8 -- and maybe even amendment 9 and possibly even further, but in particular amendment 8 -- relate to the issue.

If we are going to be helping subfertile couples and even fertile couples take this step into parenthood, the very least we can do is check they are free of conviction, serious conviction especially, and ensure we are giving the children the best start we possibly can.

Ms PENNICUIK (Southern Metropolitan) -- Further to my initial comments, very briefly I will point out to members of the house who have not had the opportunity of reading the Legislation Committee's report that Victoria would be the only jurisdiction with these provisions in place. They are not in place in any other jurisdiction.

The only other jurisdiction that has anything similar is South Australia, where applicants for assisted reproductive technology are required to provide a statutory declaration stating whether they have a conviction for an offence of violence or a sexual offence and/or have a child protection order against them. There is no other jurisdiction that requires a police check for applicants for assisted reproductive technology treatment, and the Greens believe it is inappropriate to have that in the Victorian legislation.

Mr FINN (Western Metropolitan) -- I will be voting against this amendment. I very strongly support the police checks. Some might say that what I am about to say is a bit outlandish, but it is a very real possibility, knowing how some of these people think.

My very great concern is that we could have a situation where two male paedophiles commission -- and I have to say to the house that I detest that word in this context; the use of that word very much reflects the government's attitude to children -- a child, and if there were no police checks, there would be nothing anybody could do to stop them. I would not want to see a child put into a position where they would be effectively under the guardianship of paedophiles. To allow that to happen would be a total abrogation of our responsibility as members of Parliament. For that reason I will be opposing this particular amendment.

The DEPUTY PRESIDENT -- Order! I ask the minister whether there is any proposal to review the police check provision down the track.

Mr JENNINGS (Minister for Environment and Climate Change) -- As a starting point, in terms of dealing with the sequence of the issues that have been raised, whilst in a technical sense this amendment to the definitions does not necessarily preclude or test other provisions, it does by intent. Removing the definitions of 'police checks' and 'child protection orders' has the intent of removing those concepts from the bill, and it would only make sense to remove those definitions if the Parliament were to agree to the removal of the requirement for police checks and child protection orders to be evaluated. It is the view of the government that those provisions should stand. It might be literally correct that it does not test it, but ultimately the concept is being tested as we speak and consider whether the definition should be removed. The government believes the definition not should be removed and that the requirements for police checks and child protection orders should be maintained. This might be one of the occasions -- not necessarily with the level of detail that Mr Finn brings to his contribution -- where he and I agree. Today by the net effect of our contributions we are in alignment.

In terms of the Deputy President 's question about whether it is the government's intention to monitor the ongoing effectiveness of the provisions of the bill, including police checks, the government is alive to monitoring the application of all provisions of this bill and will be hoping that the patient review panel undertakes a range of assessments about the ongoing success or potential weaknesses in the application of the bill. Within that context all the provisions would be reviewed over time, but there is no specific intention of the government to set a time frame or a mechanism that would lead anyone to say in abstract that this is a provision that the government would not want to consider in its own right as distinct from the totality of the provisions of the act.

Ms PENNICUIK (Southern Metropolitan) -- Without wanting to rehash the debate in the Legislation Committee, could the minister put on the record why the government has chosen to do this when it was advised by the Victorian Law Reform Commission not to do so?

Mr JENNINGS (Minister for Environment and Climate Change) -- The reason I find that a bit amusing is that Ms Pennicuik knows she asked me that question directly in the Legislation Committee, and she knows that I answered that question. About 10 minutes ago she congratulated me for giving fulsome answers and implored other members of this committee not to rehash matters. If she wants that standard to apply to everyone, she might have to reflect on it a bit.

The DEPUTY PRESIDENT -- Order! The minister is looking at me. What does the minister wish me to do?

Mr JENNINGS -- The reason is that I do not know whether I want to be drawn into the situation of going back through the detailed answers I have given, either by recalling them, re-reading them or imploring members of this committee to call upon those answers. That is a bit of a test that I am now perhaps throwing to the committee.

The DEPUTY PRESIDENT -- Order! I understand the minister's position. What I would suggest in defence of the procedure that is raised by the question is that it might well be prudent for the committee to revisit some answers, albeit perhaps in an abbreviated form, on the basis of their relevance to the specific amendments moved. That is a different situation to addressing the matters canvassed in the Legislation Committee that were clearly not directly the subject of amendments that are now before the committee. Nonetheless the minister's suggestion to members is one that ought to be regarded fairly and appropriately.

I want to clarify the matter raised by the minister. Ms Pennicuik has somewhat of an expectation that this amendment does to some extent test her other amendments. In an explicit form that is not the case, because simply removing the definitions might leave the legislation somewhat deficient, particularly in the government's mind, and might have some people scratching their heads as to where other provisions in the legislation might apply. The definition is not integral to some of the specific amendments that are proposed by Ms Pennicuik in terms of deleting the requirement for police checks in subsequent clauses. It is not absolutely necessary to retain this clause in respect of how we vote on the other clauses. I agree with the minister and with what I think was Ms Pennicuik's expectation -- that this amendment and the subsequent ones are a package in terms of the way the committee ought to regard them.

Mr JENNINGS -- In the spirit of trying to assist us in dealing with the package I am happy to make some comments in relation to the question, even though I think the question is unhelpful in relation to how the committee would work.-.

The DEPUTY PRESIDENT -- Order! If the minister is happy to facilitate that, that is fine.

Mr JENNINGS -- The critical issue in relation to the way the government formed its view about the appropriate way to bring forward this piece of legislation -- which is predicated on opening up access to a variety of assisted reproductive technologies and services to assist individuals in the state of Victoria receive those services, receive that support and receive a variety of technical and professional health expertise to enable them to have children delivered and arriving within their care -- is that we have tried to account for a number of community concerns about access to these services. Whilst the overwhelming principle the government has adopted is to increase access to services and to apply a human rights perspective in terms of equal opportunity and making those services available to a broader cross-section of the community than they have previously been available to, we are mindful of a number of things, including community concern and apprehension about those services being provided to those in our community who may not be able to provide for the care of children, and in those contexts we have tried to look at how that could be ascertained and evaluated.

The most significant element of the provisions of this bill in relation to this are the counselling services and the professional standards and rigour that are going to be applied to the counselling and consideration, to make sure that the value systems and caring capabilities of the individuals who want to have children in the state of Victoria through the use of these technologies and these services is rigorously tested. People are asked to dig deep in relation to an evaluation of their ability to care for children and to talk about the consequences of having a child come into their care as a result of these services. That is the most appropriate level of scrutiny.

Beyond this there are a number of measures in terms of indicators of a person's ability to provide for the care of children, in terms of personal history or ability or demonstrable engagement with other members of the community.

A police check will indicate any previous criminal behaviour, and in the eyes of many members of the community this is an appropriate scrutiny to bring to this process. The government has accepted that that is a reasonable community expectation and a reasonable community standard. Beyond this the government also believes it is appropriate to have an understanding of a person's previous parenting record, as may be indicated by a child protection order having been taken out against an individual or an individual having been subject to intervention to either complement or structure their parenting capability. That is the type of information that will be available through the child protection order check. The government believes that is extremely relevant information in making the decision to allow an individual to proceed through this process.

Everything I have just outlined to this committee I have outlined to it previously. Those, on balance, are the reasons why the government supports the framework proposed within the legislation that is before us.

Committee divided on amendment:

Ayes, 3 
Barber, Mr (Teller) Pennicuik, Ms 
Hartland, Ms (Teller) 

Noes, 34 
Atkinson, Mr Lenders, Mr (Teller) 
Broad, Ms Lovell, Ms 
Coote, Mrs Madden, Mr 
Dalla-Riva, Mr Mikakos, Ms 
Darveniza, Ms (Teller) O'Donohue, Mr 
Davis, Mr D. Pakula, Mr 
Davis, Mr P. Petrovich, Mrs 
Drum, Mr Peulich, Mrs 
Eideh, Mr Pulford, Ms 
Finn, Mr Scheffer, Mr 
Guy, Mr Smith, Mr 
Hall, Mr Somyurek, Mr 
Jennings, Mr Tee, Mr 
Kavanagh, Mr Thornley, Mr 
Koch, Mr Tierney, Ms 
Kronberg, Mrs Viney, Mr 
Leane, Mr Vogels, Mr 

Amendment negatived.