❓ Hon Michael Mischin questions the government regarding legal advice sought before drafting the Human Reproductive Technology and Surrogacy Legislation Amendment Bill 2018, specifically concerning its consistency with the Commonwealth Sex Discrimination Act 1984. The government provided some dates of advice but declined to answer some questions citing legal privilege.
AnsweredQoN 329Legislative Council
QuestionView source ↗
HUMAN REPRODUCTIVE TECHNOLOGY AND SURROGACYLEGISLATION
AMENDMENT BILL 2018
329. Hon MICHAEL MISCHIN to the parliamentary secretary
representing the Minister for Health:
I refer to the Human Reproductive Technology Act 1991, the
Surrogacy Act 2008 and the minister's claims in the second reading
speech introducing the Human Reproductive Technology and Surrogacy Legislation
Amendment Bill 2018 that there is a risk that the relevant legislation is
invalid due to inconsistency with the commonwealth Sex Discrimination Act 1984.
(1) Before
instructing the drafting of the bill, did the government seek, receive or have
to hand legal advice on the question of invalidity from —
(a) Solicitor-General
Quinlan, SC;
(b) Solicitor-General
Thomson, SC; or
(c) the State Solicitor's
Office;
and, if so, what is the date of
that advice and when did it receive that advice?
(2) Is all that advice consistent in respect of the need to
amend the legislation?
(3) Which
specific provisions of the Human Reproductive Technology Act 1991 and the
Surrogacy Act 2008 does the advice say are inconsistent with the commonwealth
Sex Discrimination Act 1984 and need to be corrected by this bill?
(4) Did
Associate Professor Sonia Allan have access to any of this advice during her
review of the legislation; and, if so, which?
AMENDMENT BILL 2018
329. Hon MICHAEL MISCHIN to the parliamentary secretary
representing the Minister for Health:
I refer to the Human Reproductive Technology Act 1991, the
Surrogacy Act 2008 and the minister's claims in the second reading
speech introducing the Human Reproductive Technology and Surrogacy Legislation
Amendment Bill 2018 that there is a risk that the relevant legislation is
invalid due to inconsistency with the commonwealth Sex Discrimination Act 1984.
(1) Before
instructing the drafting of the bill, did the government seek, receive or have
to hand legal advice on the question of invalidity from —
(a) Solicitor-General
Quinlan, SC;
(b) Solicitor-General
Thomson, SC; or
(c) the State Solicitor's
Office;
and, if so, what is the date of
that advice and when did it receive that advice?
(2) Is all that advice consistent in respect of the need to
amend the legislation?
(3) Which
specific provisions of the Human Reproductive Technology Act 1991 and the
Surrogacy Act 2008 does the advice say are inconsistent with the commonwealth
Sex Discrimination Act 1984 and need to be corrected by this bill?
(4) Did
Associate Professor Sonia Allan have access to any of this advice during her
review of the legislation; and, if so, which?
AnswerView source ↗
I thank the honourable member for some notice of the
question. I am advised the following.
(1) (a) Yes,
dated 28 September 2017 and received by the Department of Health on 29
September 2017.
(b) No.
(c) Yes, dated
18 February 2016 and received by the Department of Health on or about that
date.
(2)–(3)
This question contravenes standing order 105(1)(b) in that it seeks a legal
opinion and, in any event, the legal advice is subject to legal professional
privilege and the question cannot be answered without waiving privilege in the
advice.
(4) No.
question. I am advised the following.
(1) (a) Yes,
dated 28 September 2017 and received by the Department of Health on 29
September 2017.
(b) No.
(c) Yes, dated
18 February 2016 and received by the Department of Health on or about that
date.
(2)–(3)
This question contravenes standing order 105(1)(b) in that it seeks a legal
opinion and, in any event, the legal advice is subject to legal professional
privilege and the question cannot be answered without waiving privilege in the
advice.
(4) No.
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