Published: 02 May 2019

Ms FORREST (Murchison) - Mr President, I rise to speak on a number of matters raised over the last two weeks during various stages of the debate on the Justice and Related Legislation (Marriage Amendments) Bill 2018.

I commence by restating my support for the legislative reform.  I am pleased with all the work done over the last four to five months, and particularly to see this bill arrive back in this House, that  resulted in the preparation of amendments to the bill presented to this House that clarified a number of concerns with the bill that was presented to this House.

My support does not reflect in the voting on the third reading of the bill, as I was in the chair with the President away from the House on other parliamentary business.

It has been disappointing that comments made by members of Government and others continue to misrepresent a number of outcomes of these amendments, effectively misleading the community by omission of the facts as established by the amendments to the bill and continued reference to the desire to refer the bill to the Tasmania Law Reform Institute - TLRI

The bill underwent extensive scrutiny through a parliamentary committee process - that being a Committee of the whole.  The majority of amendments were available to members of the public and other members mid-February.  The consultation scrutiny that occurred in this place was informed by work undertaken by the former anti-discrimination commissioner and other reviews of these matters in other jurisdictions.  The role of the Tasmania Law Reform Institute is already on the record; however, for clarity and completeness I note the statement as published on the TLRI website. 

Before doing so I believe it is important to note this step taken by TLRI, in my understanding, was unprecedented.  I believe it was disgraceful the way the Government continued to misrepresent the role of TLRI, even after the statement was published and sought to draw this highly respected and regarded independent law reform institute, which is part of UTAS, into such a highly politicised matter.  Such was the inappropriate nature of this behaviour that TLRI took the step of speaking out publicly.  To use the words of Benjamin Franklin -

Half a truth is often a great lie.

The TLRI statement said -

The TLRI does not usually publish terms of reference or details of a reference prior to the release of an Issues Paper.  However, given the controversy surrounding the work of the TLRI in undertaking on the Transgender and Intersex Reference the Institute has decided to post the following explanation. 

The TLRI has been asked by the Tasmanian Government to provide advice on issues related to sex/gender in Tasmanian legislation, including registration requirements for changing sex/gender and consent to related medical treatment.

It is not general practice for the TLRI to publish terms of reference or details of a reference prior to the release of an Issues Paper.  However, given the controversy surrounding the work the TLRI is undertaking, the TLRI has decided to post the following explanation on its website.

The Terms of Reference are to provide advice on:

·        What steps should be required to register and change of sex or intersex status on official documents;

·        What categories of sex/gender should be displayed on birth certificates and other documents;

·        What, if any, reforms should be made in relation to consent to medical treatment to alter a person's sex or gender; and

·        What, if any, reforms should be made in relation to the definitions or use of terms relating to sex and/or gender in Tasmanian legislation?

The TLRI will not consider policy in relation to these issues.  Instead, the TLRI will conduct a technical review of the practical effects of the enacted Tasmanian legislation in light of reviews undertaken in other jurisdictions, to identify any desirable consequential amendments to ensure that the policy settings enacted by Parliament are achieved.

This is in accordance with TLRI practice not to comment on Bills that are before Parliament, any related amendments or any debate surrounding those Bills, except where reforms relate to recommendations previously made by the TLRI.

This means that we will not comment on the Justice and Related Legislation (Marriage Amendments) Bill 2018, or any related amendments, until a final form of the Bill is enacted.

Preliminary work on this reference has commenced, and will continue regardless of the status of the Justice and Related Legislation (Marriage Amendments) Bill 2018.  This means that the work of the TLRI should not defer consideration of the Bill by the Legislative Council.  Our research will incorporate consideration of the terms of any Bill passed into law.

The TLRI review will include the publication of an Issues Paper, a period of public consultation, then the publication of a Final Report.  It is expected that the Final Report will be delivered to the Attorney-General on 30 September 2019, prior to its public release on 31 October 2019.

Mr President, I reiterated that because this has been misrepresented.  They have made it very clear they needed the bill to be dealt with, and it is now being dealt with in another place, finalised and enacted before they can start their work.  If they are to meet their deadline or their expectation of reporting to the Attorney-General by 30 September 2019, we needed to get on with it and deal with it, and we did, with significant consultation.

I believe it is dishonest of some members to keep insisting that the bill passed by this House should be and had to be considered by TLRI before we proceeded with it.  It simply could not happen.  TLRI could and is working on gender-related matters that are not part of the policy contained within the bill.  However, to again use the words of Benjamin Franklin, 'half a truth is often a great lie'.

Similarly, a referral to a parliamentary committee, other than a Committee of the whole House, as we did, would have meant TLRI could not even commence consideration of the matters within the bill until after the committee had reported and debate on the bill had concluded.  TLRI does and will consider any further consequential amendments that may be needed, as well as any other areas that have not been included in the bill, related, for example, to consent to medical treatment to alter a person's sex or gender

I made that point when some amendments were proposed in relation to matters raised by the Solicitor-General, noting, as I said then, and I say again, that it was not necessary.  TLRI would have done that, but I believed in my ongoing consultation with Parliamentary Counsel, it was important to put some amendments in, which were supported.

We have seen amendments to other bills pass through this parliament most sitting weeks.  Only this week we had the MAIB bill which addressed a failing of a bill passed at an earlier time.  Another bill we will debate tomorrow contains a number of provisions to deal with issues that have arisen since various acts commenced.

If TLRI believes further provisions are needed, these can be drafted and progressed through parliament by the usual process.

I now wish to refer to comments I made during this debate that have been repeated in this place and in many cases taken out of context.  I will repeat and clarify the context of comments I made with regard to consultation I undertook and other information I have been provided with.

With regard to the comments made regarding the actions and communications by the former attorney-general, leader of the Government in this place and member for Pembroke, the honourable Dr Vanessa Goodwin, regarding the need for legislative reform related to changes of gender and related matters.  As the letter tabled by the member for Launceston indicated Dr Goodwin noted the then anti-discrimination commissioner, Ms Robin Banks, was undertaking a review and working on a paper examining matters related to gender reassignment and intersex-related matters.  Dr Goodwin had previously written to the anti-discrimination commissioner requesting this work, acknowledging the need for law reform in this area, and that is what I was referring to.  As we know, other states and territories were or currently are working on legislative reform in this particular area to remove the requirement for sexual reassignment surgery.

As we all know, Dr Goodwin was forced to resign due to serious health matters and sadly passed away before a final report was completed.  Therefore it is clearly impossible she could have indicated one way or another what her view was on the bill we received in this House in November last year, which gave effect to a number of legislative reform measures recommended in the 2016 Equal Opportunity Tasmania options paper.  I never suggested she supported the bill.  I was talking about the principle of what she had asked the Equal Opportunity Tasmania commissioner to do.  My comments regarding Dr Goodwin's view related to acknowledgement of the need for law reform in this area.

My consultation also included consultation with the Commissioner of Police, as I have said a number of times in both my second reading and during the Committee stage of the bill.  This consultation took the form of a written request the commissioner responded to directly and all members now have a copy of it, and conversations between the commissioner and I.  In my written request to the commissioner, I confined my comments and requests to matters related to areas where Tasmania Police are required to undertake searches of individuals.  I did not seek, nor expect, any feedback from the commissioner regarding other matters related to the registration of change of gender, nor did I ask for comment regarding matters related to the issuance of birth certificates.  All my comments as recorded on Hansard relate to both forms of consultation I had with the commissioner, both the written and the verbal, and these are limited to my request for advice regarding Tasmania Police policies relating to searches.  I remind members who have a copy of that response the commissioner opens with the comment -

Thank you for your inquiry regarding Tasmania Police's current policy in relation to searches.

I do not know how I can be clearer.  In the written inquiry to the commissioner I wrote -

Concerns have been raised by some that this change may create issues for police in conducting searches of individuals where existing legislation requires the search to be conducted by a person who is the same sex as the person to be searched.  I expect this is already a matter police deal with when dealing with transgender or non-binary individuals who have not registered a change of sex under the current legislation or don't identify as either male or female.  I have asked OPC to draft an amendment to address this more broadly that I am happy to provide that to you as soon as I receive it.

I also asked if the police service has a policy to manage the current circumstances you face when conducting searches and whether you believe the policy would be adequate to deal with the changes proposed. 

That was the request I sent to the commissioner and is what he responded to.

To comment on what has been alluded to by members with regard to my comments made during the course of the debate, the member for Windermere on several occasions stated I had received a report from the commissioner.  This is incorrect.  I have never stated I have received any other information from the commissioner other than the letter dated 1 April 2019.  On Wednesday, 3 April I stated, and it is recorded on Hansard, that I also consulted with the police commissioner and that while I did not circulate his letter because he requested me not to do so, he was supportive.

To clarify this statement, as members can see from the response I received from the commissioner and what I have just told members, in my request for advice from him I asked him about the policy adopted by police with regard to undertaking searches.  His answer is clear with the specific question regarding the need to ensure searches carried out remain valid and lawful after noting the amendment he had access to.  The commissioner clearly outlines the policy related to searches of individuals who are gender-diverse, including transgender and intersex individuals.  He also noted the amendment I had proposed and his closing comments agree that protection was needed.  I clarified this verbally with the commissioner regarding the specific comments related to the proposed amendment.  This is the matter I referred to when I stated the commissioner was supportive.

As repeated by another member on 3 April 2019, I did say by interjection, and I am quoting from Hansard -

I will refer to that advice when we get to the section of the bill that relates to that.  The overall advice was supportive of the legislation.  As to the particular aspects that have any real implications for police, we will deal with it at a later time.

On 4 April 2019 I also stated in the Committee stage -

In speaking to the commissioner previously he said I could refer to his broad comments.  I understand that from the letter that the police are broadly supportive of this legislation.  They deal with this matter in practice now.

Clearly, I was referring to the matters related to searches as confined to the request and the response I received from the commissioner.  Members can see from the letter to me from the commissioner, which they all have a copy of, once released by the Government, which was also provided with a copy of the letter that the commissioner sent to me, that my request for information related to the matters of relevance to the police, particularly with regard to search provisions in related legislation.

To be clear, my reference to legislation relates to this aspect of the legislation and the amendments I put.  As noted in the email letter to the member for Windermere on 8 April 2019, the commissioner stated that -

Subsequent to this letter [the one I received he is referring to], I spoke to the member for Murchison and reiterated my support for the LGBTI community ...

That was a matter I reiterated in my comments during the Committee stage of the bill.  As I said, that is what we talked about in my conversation with him.

I go on with the commissioner's comments in the letter to Mr Dean -

… and broadly indicated that any legislative amendments should protect the role of police.  I do not express support or otherwise for the proposed bill, as that is not my role.

As I noted a short time ago, members can see my request for information related to the matters of relevance to the police, particularly with regard to search provisions in related legislation.  So it is absolutely clear, my reference to legislation relates to this aspect of the legislation.  Amendments are part of legislation.  The commissioner's letter to the member for Windermere clarified that this conversation took place after he provided that letter to me, as I indicated in my comments in the Committee stage. 

I also included the following comments on 4 April 2019 when in the Committee stage of the bill and I will repeat again here as it seemed no matter how many times I answered the question it was re-asked.  I said -

The commissioner, as we all know, and his police department have done an enormous amount of work engaging with the LGBTI community.  There has been an enormous effort to create inclusive workplaces for the police, for the people they deal with, and often the police deal with individuals in the most difficult of circumstances regardless of whether they are members of the LGBTI community or not.  What I said was that the consultation I undertook with the commissioner indicated that any legislation that will strengthen and build on the work done by police to assist them in treating members of the LGBTI community fairly and equally, as we want them to treat all of us if we had to have dealings with them, is supported.  That was the point I was making.

The police commissioner noted at the end of his letter on 8 April 2019 to the member for Windermere that -

The comments in Hansard made by the Member for Murchison are her personal interpretation of operational information and discussions with me.  On that basis, I do not believe it is necessary to correct the record.

As members are aware, I was asked not to share the written communication I had received and as such, I had to rely on respecting this request while relating relevant details of our conversation referred to by the commissioner.  As the commissioner said, he does not believe the record needs correcting and I acknowledge and share that view.

Mr President, I encourage members to take comments of all fellow members in context and seek to exercise kindness in our decision-making.  As Andrew Iskander said -

Because that's what kindness is.  It's not doing something for someone else because they can't, but because you can.


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