Derryn Hinch’s Justice Party certainly won’t stand in the way of this Bill.
Sadly, though, I have to say that we’re not quite as enthusiastic about it as most other Members.
We totally understand the argument that it is unfair for some prospective parents to be subjected to mandatory police and child protection checks to which others are not.
Likewise, we acknowledge that a case has long and forcefully been made in this specific area of policy that medical procedures should not be denied to people per se on the basis of the results of such checks.
Similarly, we accept that Victoria is the only State in Australia to mandate police checks for assisted reproductive treatment.
We have also been very moved, at a personal level, by the words of the Minister for Aboriginal Affairs, for Prevention of Family Violence and for Women, Gabrielle Williams. She has done a very difficult and courageous thing in publicly revealing her own story of trying to conceive through IVF – and observing, as part of that, that she regards the requirement of having to submit to police checks (in her own words) as incredibly demeaning and borderline humiliating.
In turn, we also want to recognise the many thousands of Victorians who have also (more indirectly) expressed similar views over a number of years, including through the recent Independent Review of Assisted Reproductive Treatment process.
In our party, we completely understand and readily acknowledge all of those considerations.
Fundamentally, we also support the basic intent of the Bill – which is to remove barriers and impositions for the overwhelming majority of parents seeking ART.
As the words on page 177 of the report of the Independent Review of Assisted Reproductive Treatment point out, it is clearly the case that numerous concerns continue to exist around the costs, burdens, delays and distress that are caused to many people by the vetting requirements.
We completely respect those views.
However, in the course of revisiting the history of these laws, in examining the Bill, and in thinking about the many issues that surround it, we have also found ourselves confronted by quite a number of ethical dilemmas here.
At the heart of those dilemmas have been questions about whose individual rights should take precedence over others, and therefore be prioritised in this area of law. In fact, those questions have hovered over this debate since the relevant laws were first passed by the Brumby Labor Government around a decade ago.
For us, there remains a tension – and, sometimes, an invidious choice to be made – between fully ensuring the welfare of children or removing all limits on the wishes of aspiring parents. At the moment, we’re not sure both of those outcomes can be achieved simultaneously in every single case.
As I think other MLCs would well and truly know by now, Mr Grimley and I advocate very strongly for the best interests of young children in debates in this House. This is a core element of our party’s philosophy.
Primarily, the aim of the existing checks, above all else, is to prevent children from being abused or neglected. That’s noble and sensible, and accords entirely with our party’s position.
It’s also completely consistent with a time-honoured principle that any state inevitably does owe an indispensable duty of care to its children.
I say this often, and I will say it again today. Our party also believes strongly in the critical role that early intervention and primary prevention can play in stopping a child from being harmed, and ensuring that their formative years establish the best possible base for the rest of their lives.
Certainly, whenever a child is born, the importance of those babies being in loving homes where they are fully protected and cherished is absolutely paramount. I mean that not only for the child’s own individual welfare but for the benefit of society as a whole as well.
So many of the stories of unfulfilled and ruined lives (and indeed of criminality) in modern Victoria can be traced back to childhood trauma – and of people being raised in entirely unsuitable environments and circumstances and/or by people who were ill-equipped to be parents. This manifests itself in so many ways.
I don’t want what I’m about to say to be misconstrued as in any way applying exclusively to people seeking ART. Because they are intended to be much more broadly-applied remarks.
But, sadly, we know there are people who should really never become parents and/or bear a longstanding responsibility to adequately look after a child. As much as it might be confronting to say something like that, I’m afraid it’s a reality.
The sheer weight of cases that need to be referred to the child protection system, alone, tells us that. Not to mention the spectre of the thousands of children that end up in residential care, out-of-care homes, or living on the streets.
We are also experiencing huge problems in Victoria with the dramatic escalation in recent years in child pornography activity.
Similarly, the appalling crimes of filicide and infanticide are largely out of sight and mind for many people, but the truth is they are far from rare events in modern-day Australia either. According to a 2019 Australian Institute of Criminology report, around one child every fortnight is killed by their parents across the country – with infants comprising nearly one-third of the victims.
So I have to say that, set against all of that background, it’s difficult for us to accept that the current safeguards should be fully removed.
We do feel some comfort in knowing that, until now, there has been a way of potentially preventing access to ART even for that very small number of applicants with convictions for serious sex or violence offences, and/or who have had children taken from their care.
I recognise that the Government is saying, in its commentary on this Bill, that it has sufficiently strengthened child protection and family violence checks and reporting laws – and that these have now displaced the need for any
However, that also means that we’re effectively being asked to express full confidence in systems that don’t work perfectly by any means. Indeed, those systems and reporting mechanisms have been plagued by many very serious problems for a long time now.
The Government is also, in effect, saying there will be a much bigger role for ART providers themselves in identifying potential risks to the welfare and interests of a child. However, I think that’s a very onerous and subjective responsibility to leave purely with the providers.
And, for my part, I don’t have absolute, 100% confidence that those alternative measures will successfully identify every problematic case.
I know that the potential red-flag cases are absolutely miniscule in number compared to the overwhelming majority of people who should be allowed to have undisrupted access to ART. It’s my understanding that around 180 prospective parents were the subject of referrals to the Patient Review Panel over roughly the past eight years, and treatment was denied to 12 of them.
However, I would still ask people to reflect on the point that that is still 12 children who were potentially saved from terrible fates.
And, given we’ve heard the Government making the argument recently and repeatedly in relation to the coronavirus that all of their restrictions have been entirely justified if just one life has been saved, then it’s hard not to see why the processes that led to intervention in those 12 ART cases would remain justifiable in that context, too.
About the COVID-19 rules, Premier Andrews said on 20 April, for instance, that “we know there’ll be pain, we know there will be disruption, but that is a price worth paying if it saves lives”.
If Victoria has in place (as it does) a network of checks on all those seeking even to work with children, then it’s not unreasonable to ask why checks should continue to be made on prospective parents, either. If you have a history of seriously harming children, then you should not receive access to ART to become a parent.
As the University of Melbourne’s Lynn Gillam and Georgina Hall wrote in 2015: “when accessing ART that’s publicly funded, the applicant is asking the State to help her via regulation and subsidy. It’s therefore ethically justifiable for this third-party assistor to weigh up all the likely outcomes of providing treatment. And where an ART applicant displays identified and established patterns of harm to children, or has a mental health profile associated with at-risk parenting, then restriction to access is ethically justified.”
It’s also worth remembering that police checks remain mandatory for those wanting to bring a child into their homes through adoption, foster care or another form of out-of-home care, for example.
In child custody disputes, relative judgements about some people’s suitability and capacity to rear and raise children over others are, of course, routinely made as well.
To us, all of these counter considerations and arguments have raised a number of questions in our minds about this Bill – and the practicalities of the changes to which it will give expression. We have raised some of these with the Health Minister’s office already, and we thank her and her staff for reaching out to us to accommodate that.
All in all, our party has various concerns about the gaps this Bill may now create in the child welfare architecture.
As I outlined in the opening minutes of this speech, we also entirely respect and understand the various arguments that have been made in support of the Bill. We also absolutely respect the many thousands of Victorians who have, quite justifiably, pointed to the flaws and frustrations about the existing arrangements – and advanced the case for change (often in a deeply heartfelt way).
Mr Grimley and I will therefore support the Bill, and it clearly has the numbers to pass quite easily regardless of what we do in any case.
However, and particularly in the name of the wellbeing and the best interests of future generations of Victorian children, I would also counsel anyone against assuming that that means we are necessarily the most strident proponents of the Bill, either.
We are genuinely concerned about the prospect of seriously problematic cases now being missed, and therefore the potentially catastrophic consequences.
In the meantime, I thank the House.