Wednesday, 16 October 2024
Motions
Mature minors decision-making
Mature minors decision-making
Moira DEEMING (Western Metropolitan) (15:58): I move:
That this house:
(1) notes the Department of Education’s duty-of-care policy affirms the importance of harm minimisation when caring for children and adolescents;
(2) affirms that children and adolescents have the right to access accurate records relating to their own mature minor declarations;
(3) calls on the government to mandate the creation of official records for declarations of mature minor status in Victoria, including but not limited to:
(a) details of the child/adolescent being declared, their parents or legal guardian, the adult, employee or officer making the declaration, and all others involved in the process;
(b) all information relevant to the mature minor status decision, including the specific purpose the status was granted and the reason for determining sufficient maturity and intelligence to understand the decision, including, if possible:
(i) knowledge of and conversations with the child/adolescent;
(ii) medical and psychological history;
(iii) living arrangements and independence;
(iv) academic results and school reports;
(v) views of named members of the leadership team, teachers, school welfare staff, support services staff or external health professionals treating or working with the child/adolescent;
(vi) whether another professional has decided the child/adolescent is capable of making other decisions;
(vii) whether the child/adolescent will inform their parents/carers before making the decision;
(viii) whether it is in their best interest to make the decision with or without their parents/carers consent; and
(4) requires these records be stored permanently, accessible upon request by any person who was declared a mature minor as a child or adolescent.
It is my absolute pleasure to be standing here today to move this motion 622 calling for the government to mandate the creation of official records for declarations of mature minor status in Victoria. Historically, mature minor status was granted by qualified doctors to teenagers whom they clinically assessed as having adult levels of maturity and intelligence and therefore being able to consent to contraceptives and the like without needing parental consent. Rightly or wrongly, it was regarded as a limited, balanced intervention that preserved a maturing young person’s right to privacy and independence in specific situations, which also preserved the general integrity of parental guardianship rights. But in Victoria, mature minor status has moved well beyond the GP clinics and qualified medical professionals and into the purview of adults and leaders who just happen to be on school grounds. I have heard tell that it has spread even further to other contexts, like local council youth programs. And it is not just for things like the pill anymore. It is for social gender transition at school and referrals to third-party health providers, who can then facilitate medical gender affirmation, all without parental knowledge or consent, all under this legal fiction, in my opinion, of mature minor.
I have had it confirmed that in Victoria mature minor declarations are not required to be documented and held on file like other mental health or medical interventions. There are no formal processes for declaring a student to be a mature minor. There is no formal collection of data about students who have been declared mature minors for any reason, including gender transition or referrals to third-party providers.
My motion today is not actually about whether or not mature minor declarations should exist in law. They do, and I accept that. I am hoping that this is a very reasonable call just to make these mature minor declarations accountable and transparent. My motion today is based on my belief that children have a non-derogable human right to the protection of adults, primarily from their parents but also from every adult entrusted with their care. It is based on my belief as a parent, as a teacher and as an MP that child safeguarding is an honour and a duty. It is based on my belief that adults are responsible for what they do or do not permit children in their care to do, and it is based on my belief that to try and shirk that responsibility by putting the legal and moral risk back onto the shoulders of vulnerable children is wrong.
My motion today is a simple one, calling on this government to mandate proper record keeping for mature minor declarations so that, if they need them, children can access them later in life. We all know that institutions and individuals make mistakes, sometimes grave mistakes with grave consequences. It goes without saying that when you add in medical and psychological interventions the risk is obviously much higher. Good record keeping is the tool of justice. Children who are declared mature minors are going to need good records if they want to pursue negligence, redress or abuse claims against persons or institutions who unlawfully or negligently declared them to be mature minors, or even just for the integrity, continuity and consistency of care. My motion is about the rights of children and our duty of care as adults.
The Department of Education’s own duty-of-care policy states that schools and staff must take reasonable steps to minimise the risk of reasonably foreseeable harm. It even says that this duty is non-delegable, meaning that it can be shared but it cannot be assigned to another party – I would say a party like a child. Further, mature minor declarations are supposed to consider the Charter of Human Rights and Responsibilities, which lists the right for a person not to be subjected to medical or scientific treatment without full, free and informed consent, and that every child has the right, without discrimination, to such protection as is in the child’s best interest and as needed by the child by reason of being a child.
Child: the word itself is meant to denote the fact that they are physically, intellectually and emotionally immature and inexperienced. Children as a class are therefore considered in life and in law as a vulnerable group. They are vulnerable to making mistakes, being misled and being exploited. It is why normally the general legal standard is that children cannot consent and that consent must be granted by their parents or guardians. It is why normally the decisions made on behalf of children by adults, no matter whether they are parents, guardians, teachers, babysitters, doctors or a random person in the street, are held to such a high standard of scrutiny. It is why the general assumption in normal situations is that children and young adolescents are incapable of understanding or bearing the responsibility for serious decisions that they might make, legally or morally.
We just had this debate recently where I heard those on the opposite side call for children aged 14 and under to be spared the dreadful weight of adult liability for their crimes. So why are children 14 years and under being forced to bear the dreadful weight of adult liability for their serious non-criminal decisions that in every other context would require an adult to consent to on their behalf? The truth is that we cannot fulfil these duties when we have no formal processes or records, no chain of custody for transferring legal consent from a teacher back to the child and then to a counsellor and to a doctor et cetera. Without mandated formal assessments and mandated formal records there is no way to ensure that decisions have been made in the best interests of the child according to the charter, and there is no way to ensure that schools have fulfilled this duty of care to take reasonable steps to minimise the risk of reasonably foreseeable harm. There is no way to prove it one way or another. And without detailed records the child has no way of accessing justice if anything goes wrong after they were made responsible for drastic decisions about their childhood mental health and physical health.
Every Victorian should have the right to know how –
Members interjecting.
Moira DEEMING: Is there actual hissing going on at me, Acting President?
The ACTING PRESIDENT (Jeff Bourman): Not that I am aware of.
Moira DEEMING: I can hear it.
A member interjected.
Moira DEEMING: I asked if it was hissing; it sounded like hissing.
Every Victorian should have the right to know how and why responsibility for their welfare as a child was voluntarily surrendered by the adults in charge and placed back onto their own shoulders as little children, and often without the original custodians of consent – the actual parents – ever being told.
Without ironclad accountability mechanisms – like records – mature minor status appears to me to be a way for adults to blame children legally and morally for the impact of decisions that they should never have been allowed to make themselves.
This motion proposes what should be considered a straightforward and uncontroversial step. The government has admitted to me that they do not keep these records – they do not mandate them. I am just asking that the government mandate the creation of official records for the declaration of mature minor status and that these records be maintained and made accessible upon request by any person who has been declared a mature minor as a child or an adolescent. I commend it to the house.
Michael GALEA (South-Eastern Metropolitan) (16:07): I rise to speak on the motion put forward today by Mrs Deeming, and I will be speaking against the motion. I do so because I believe that this is a motion that goes beyond the mere matter of record keeping or even the approach to mature minors in public schools.
Currently there is a concerted effort – and I am not even necessarily saying by those in this chamber, but by some commentators, shock jocks and other political opportunists. For many of these people it is not about necessarily what is best for children; it is not about their wellbeing or safety. For some it is about their ideological views on gender issues and the rights of queer people in general. For many more it is not even necessarily about that but about the never-ending culture war, cynically exploiting issues such as this, whether it be for fame, attention, money or indeed fearmongering for the sake of fearmongering.
That is not to say that there are not cases of legitimate concern and some parents that may have some legitimate concerns. I do not doubt that those concerns are heartfelt and sincere, but I do remain very concerned by the fact that there seems to be a large number of people who seem more focused on spreading fear and misinformation about LGBTIQA+ people. And I am dismayed because I do believe that there is room for genuine discussion on what is best practice for children, on how we can support them and on how to keep them safe, but as long as this issue is exploited by those who would exploit it for those extreme purposes, we cannot get that cut through, we cannot achieve meaningful discussion and debate.
All students have a right to feel safe at school. This includes being free from discrimination based on race, on religious belief, on sex, on gender identity or on sexual orientation. This is a protection that is of course afforded to all Victorian people, and it is entirely appropriate that it be afforded to young Victorians at school as well. This Allan Labor government is committed to providing safe and inclusive learning environments for all Victorian students, including supporting those who are members of the LGBTIQA+ communities in our schools. Gender identity is a protected attribute in Victorian and Australian law, and it acknowledges that a person’s gender identity is part of how someone understands who they are and how they interact with other people. The Department of Education have an obligation under anti-discrimination law to ensure that these students are protected on the basis of their gender identity, and they are required to take reasonable steps to do so. Consistent with the law, the department’s LGBTIQA+ student support policy requires schools to take reasonable steps to eliminate discrimination on the basis of sex, gender and sexuality. This includes providing a welcoming and inclusive environment for LGBTIQA+ students.
Victorian schools are also required to implement the child safe standards, which are compulsory minimum standards for all Victorian schools to ensure that they are well prepared to keep children and young people safe and protect them from harm and abuse. Child safe standard 5 requires all schools to uphold diversity and equity in policy and practice, paying particular attention to the needs of a range of student cohorts, including those from culturally and linguistically diverse backgrounds, those with a disability, those that are not able to live at home, those international students and of course queer and Indigenous students as well.
I think it is really important to reflect on the fact that each person does have a very different journey in life and through school. As one metric, when you look at the suicide rate amongst sexually diverse young people and if you look at the suicide rate amongst gender-diverse people even more so, these numbers are shocking – they are harrowing. There is so much that is being done and there is so much more still to be done. On this side of the house we are committed to doing what we can to support those young people in whatever ways we may – indeed in some cases even when they are not receiving that support at home. These suicide statistics are frankly shocking, and it would be remiss bordering on gross negligence for the government to be ignoring that in our schools.
It is important as well to note that the starting point of any of these conversations and any of these individual cases is not to exclude parents. The starting point is of course to involve families as much as it is possible and as much as it is safe to do so. For a variety of reasons, though, students under the age of 18 years are sometimes asked to make decisions on their own behalf without the involvement of their parents or carers, which may include engaging with a health practitioner or allied health professional or going on an excursion. This is not new. This is not specific to the question of gender or sexuality. The department of schools have an obligation under anti-discrimination law to ensure that students do not face that discrimination, and that is a protectable attribute. Refusing to call a student by their preferred name or using their preferred pronouns is an example of gender identity discrimination. That starting position is and always is to work with families, but when that cannot be done, it is important that those supports are not withdrawn.
To be considered a mature minor, school staff must be satisfied that the student has sufficient maturity, understanding and intelligence to understand the nature and effect of their particular decision. In making this decision, a principal or other professional can take into account knowledge of and conversations with the student; their age; their level of maturity; their understanding of the issues and consequences; their living arrangements and independence; their previous academic results; the views of other members of the leadership team, relevant teaching staff, welfare staff, student support services or other external health professionals; whether or not another professional working with the student has decided that the student is capable of making other decisions for themselves; whether they will inform their parents or carers before or after making the decision; and whether it is in the student’s best interests to make the decision with or without parental consent. These must be considered in order to make such a determination, and it must also consider the human rights of any relevant parties as set out in the Charter of Human Rights and Responsibilities Act 2006.
There are many other attacks that we are seeing on young queer Victorians, particularly young transgender Victorians. We have seen a report commissioned into the UK’s National Health Service weaponised against the transgender community here in Victoria, that being the Cass review. A report which made recommendations on how the National Health Service over there could be reformed is being used as an argument to say that care provided in Victoria is inappropriate. Never mind the fact that those recommendations would in fact bring the UK into line with the practice as it already operates here in Victoria. It is not some magical wand that is able to be used to say that all care for trans people is inappropriate, but that is what some people are trying to turn it into to weaponise it for their own benefit.
I will finish by reflecting on the never-ending attacks and the shifting goals of the culture wars. Now it is fearmongering about social transitioning in schools and gender-affirming care or how libraries are evil, even. Before that it was about how banning conversion therapy was somehow wrong. Indeed I remind the chamber that the previous Leader of the Opposition – and who knows, maybe the next Leader of the Opposition – Michael O’Brien made a secret promise to repeal that ban passed in the previous Parliament. Before that it was how marriage equality would somehow ruin the institution of marriage. Before that we had the relentless lies and hatemongering about Safe Schools, and on and on it goes. Every time these arguments are based on predictions that prove to not eventuate. But they always do one thing, and that is harm young LGBTIQA+ Victorians. And that is why I do not support this motion.
Georgie CROZIER (Southern Metropolitan) (16:17): I rise to speak to motion 622. The motion, as has been highlighted by the lead speaker, talks about mature minors and is calling on the government to mandate the creation of official records for declarations of mature minor status in Victoria. It goes to a range of things in relation to decision-making processes that affect young people in this very sensitive area.
I have just been listening to Mr Galea, and I did not want to interject or say some things, but I do think it was rather inflammatory in relation to what he was referring to about Mr O’Brien. I spoke in this house on the bill that you referred to, the conversion bill, and I had significant concerns about what the government was doing. My concerns were not about conversion therapy, my concerns were around the government not allowing medical practitioners to be able to –
Georgie CROZIER: No, Ms Shing. You interrupt. I am on the record saying what I did.
Harriet Shing: You are a member of Liberal Pride, and you are going to vote for this.
Georgie CROZIER: I am making some points, and yes, you have a view. I have a very firm view around parental rights and the protection of children, as you do.
Harriet Shing: See you at Pride March, then.
Georgie CROZIER: I have been going to Pride March for a long time, Ms Shing. It does not change my views around parental rights.
Harriet Shing: Or your voting record.
Georgie CROZIER: I will read you what I have said. It is all on the public record, and I will say it again. In 2019 in the Parliament, I was talking about transparency around data that the Andrews government would not provide to the people of Victoria on this very issue. I was particularly concerned about a woman who I was referring to, Clair, a mother. She raised her issue around her 14-year-old. I will read it out. This was reported:
… she had been called by school counsellor “out of the blue” to be told her 14-year-old “socially awkward” daughter was a trans boy. The counsellor had been seeing the girl for three weeks without her mother knowing and had given her information about gender clinics and trans websites.
That mother, in my view – and I still hold that view that I held in 2019 – had every right to understand about her daughter, about the issues that were concerning her. This is a sensitive issue, and it is not every single child pigeonholed in the box that I am talking about. This is why the issue around records I think is important and transparency, because the mother actually fought for that daughter, and the daughter –
Georgie CROZIER: I know you have got an issue about it, Ms Shing, but this is important. It is important for those parents who have contacted me regarding similar issues.
Harriet Shing: Have you spoken to Transgender Victoria?
Georgie CROZIER: I have spoken to a lot. I know trans people.
The ACTING PRESIDENT (Jeff Bourman): Order! This is an emotive issue, I understand that, and people have very strong views on it. Let us just try to keep this straight down the middle if we can.
Georgie CROZIER: As I said –
Harriet Shing: Bring your voting record.
Georgie CROZIER: I know, Ms Shing. I will get abused at Pride March. I will still march at Pride March because I have got gay friends and people that support the gay community. I am going to go back to the issue that I am concerned about now, as I was in 2019 – nothing has changed – because as this mother said, she took her daughter, and the daughter was found to have Asperger’s. She had Asperger’s, and apparently children – some children – with Asperger’s can have gender confusion. That mother had every right to be concerned about what was happening to her daughter, who had a medical condition. Mr Galea rolled off all of the concerns around the considerations, the external issues, but he did not mention medical conditions. He did not mention that. That did not come into the issue, because –
Members interjecting.
Georgie CROZIER: I say again – and the government is exercised about this – you are not going to change my mind if you just keep yarking on at me. Right? You are not going to change my mind.
Harriet Shing: This is about suicides.
Georgie CROZIER: Yes, and there are people that are very sensitive about this, Ms Shing – very sensitive.
Georgie CROZIER: Seriously, grow up. Grow up.
The ACTING PRESIDENT (Jeff Bourman): Order! As I said, this is an emotive issue. I am not trying to stifle debate, but I just need people to get through this. We are all entitled to our opinions. It is a contest of ideas. As I said, I am not telling anyone to not say anything, but if people could just keep it nice – as nice as we can – we will move on through it.
Georgie CROZIER: You might remind the government. I say again: this is a sensitive issue.
Georgie CROZIER: You can remind me of the voting record. It is on record, Ms Shing. Nothing has changed between now and 2019 – nothing. You might inflate this, but it is an important issue.
The ACTING PRESIDENT (Jeff Bourman): Order! To help this through, I think all contributions need to be made through the Chair. I think that will help us along.
Georgie CROZIER: Acting President, through you, this is a sensitive issue, and there are concerns from parents legitimately around these issues. I have just highlighted it. One I raised in 2019. My concerns have not changed. I know parents who have got children who are transitioning. I know their concerns and what they want to do to support their children transitioning. It is a sensitive issue, and it needs to be understood, and I think requiring records to be stored permanently, accessible upon request by any person who is declared a mature minor as a child or adolescent, is their right. Frankly, it is their right. It is their information. To hold that away from an individual says more about a government that is trying to protect I do not know what, but surely the individual has the right to that information when they are a child, a minor. So I say again – I have raised these issues for many years – I believe there needs to be greater transparency. The government does not give us that transparency. I have asked on several occasions around numbers and data, and I get very opaque answers back. This issue needs to be debated in a perfectly legitimate time, as we are doing now in the Parliament. But nobody needs to be demonised by this.
Georgie CROZIER: Acting President, you might want to tick the minister off, because she is just interjecting the entire time.
Harriet Shing: You take up my interjections.
Georgie CROZIER: No, I am not giving you that satisfaction.
The ACTING PRESIDENT (Jeff Bourman): Order! Though the Chair. If we can keep the interjections low – but in fairness to everyone, there is a lot of interjecting that goes around in this place. If people could just ignore it, that would be awesome and we could just get through it.
Georgie CROZIER: This is a motion that the Liberals and Nationals will not be opposing. I do understand that there are many very concerned people out there in relation to some extreme elements of what people might do, but this is around young people and their ability to have access to their information. I say again what I said in the outset: I have raised these issues, as I have highlighted, back in 2019, and I made a point around a parent who wanted to understand what her child was going through. I do not shy away from that. It is a legitimate concern for parents to be able to be involved where they can and to support their children if they are transitioning in what they are experiencing. It is a very important issue and one that should not be demonised, one that should not even be ridiculed by those opposite. It is important, and it is not an unfair debate to be had.
Sarah MANSFIELD (Western Victoria) (16:26): The Greens will not be supporting this motion. While we have deep concerns about the potentially veiled motivations behind this motion, at the core of our objection is that it is actually based on a misunderstanding of the concept of a mature minor both from a legal and a practical perspective. Allowing this misunderstanding to go unchallenged risks perpetuating misinformation that is already in common circulation, and we have heard some of that already today, and that has the potential to negatively impact on young people and those who work with them. This is particularly the case for trans and gender-diverse young people who are seeking gender-affirming support, but it can affect young people in many different spheres of their lives.
I am going to have a go at clearing up these misunderstandings, and you will have to bear with me because I am going to get into the history of the concept of a mature minor. It has its origins in medical law, and it is sometimes referred to as Gillick competence. In 1985 the House of Lords made a decision that is the basis for the current interpretations of a mature minor. Gillick v. West Norfolk and Wisbech Area Health Authority dealt with a case where a health department provided advice to doctors that they could prescribe contraception to those under 16 at their discretion without parental consent. Victoria Gillick was a very passionate campaigner who campaigned against this advice. She felt that this was unacceptable and infringed on parental rights, so she took the area health service to the courts. Eventually this landed with the House of Lords to make a determination about this question of consent, and they resolved that someone under 18 years of age can consent to medical treatment if they have sufficient understanding and intelligence to enable them to fully understand the nature and effect of the particular decision they are making. They found that parental involvement in decisions is encouraged where appropriate, but for a decision where a young person is determined to be a mature minor it is not a requirement. This decision was strongly affirmed in Australia in 1992 when the High Court made a ruling in Marion’s case. Gillick competence is now an established principle in common law.
While these cases may have been related to clinical situations, this is how the idea of a mature minor came to being, and it is now used in a range of contexts that involve young people and those who work with them, for example, in social work, youth work and education. What is important to note is that the assessment of mature minor status is context dependent. How well you know the child, the decision that is being made and the consequences of that decision have a critical bearing on whether or not the young person is capable of giving consent in that particular instance. What this means in practice is that a young person may be considered a mature minor or Gillick competent for one particular decision and not another. Let me give you a basic example. I am going to use a medical context because it is easy for me to do that, but the same basic principles would apply to a teacher in a school. A 15-year-old might come to see me with a cut on their toe. It needs some cleaning up and a dressing, and after assessing the young person I determine that they are able to consent to me doing that: cleaning it up, putting a dressing on there. They are clearly able to understand the consequences of that treatment, and they fully get it. They are able to make that decision.
Let us say that same 15-year-old has a deep cut. It is badly infected, might involve the bone, and they need an X-ray. The treatment might require a surgical wash out, possibly even a partial amputation of their toe – we are not going to know that until they are under a general anaesthetic – and they might need a long course of intravenous antibiotics. I am just going to clear this up: I would be doing none of that in general practice, but let us just go with this as the example. I determine that the young person does not really appreciate the gravity of the situation, and they cannot consent themselves to any further treatment. In this instance they are not a mature minor – the same young person, different decision. A parent or a legal guardian needs to be involved.
These are crude and obvious examples, but they demonstrate how the decision being made determines a mature minor status. This is important, it is relevant to this motion, because people who work with young people might be making a mature minor assessment for the same young person multiple times a day about all kinds of things, and for each assessment they make they might make a different determination. There are some things that they are deciding about where, yes, that young person is able to give consent for that. But for other things, ‘Look, I don’t think that’s something they really fully understand, and their parents need to be involved.’ You do not just get declared a mature minor. It is not this threshold that you reach where you are just declared a mature minor and that is it, henceforth you can make decisions about yourself. It is not something that you could then practically keep some central record of: ‘You have been declared a mature minor.’ It is not like getting a licence or a registration number.
Determining mature minor status requires a nuanced situational assessment; it changes over time. It can go either way depending on what is going on in that young person’s life and their capacity to consider different issues. Mature minor determinations are actually typically recorded in a medical record. If you are seeing a young person, you would typically document that that person has provided consent. All issues of consent around any kind of treatment are generally documented, particularly for young people, because there are medicolegal implications, so you generally will document that. Those records are accessible by a person later down the track, but it is not something that you practically would keep a centralised record of, particularly for all those minor nuanced decisions and those determinations that are being made every day by people who are working with young people. I do not know how you would practically document all of that and keep it in a centralised record that you would access at a later date and go, ‘You were determined to be a mature minor on 15 different things on this day.’ From a purely practical point of view, this does not really make a lot of sense.
But let us get to the subtext of this motion and what we suspect is the real motivation for bringing it forward. I am going to keep it brief and simply restate the Greens’ clear position that schools and all places that young people inhabit and the services they interact with should be safe spaces for them to be who they are, where they are supported and empowered to make decisions for themselves where possible and appropriate, including our trans and gender-diverse young people.
Jacinta ERMACORA (Western Victoria) (16:33): I really appreciated the contribution by Sarah. Thank you. It was very good.
Unfortunately, I have to reply to this. I wish that this motion was not brought forward. This motion is not about data, it is an attack on children in schools who are transgender or gender diverse. Gender identity is someone’s personal sense of being female, male, a blend of both, or neither. The physical features that someone was born with do not necessarily define their gender. Transgender children and adolescents do not identify with the gender presumed of their birth, and ‘gender diversity’ is an umbrella term for a range of genders expressed in different ways. Gender-diverse people use many terms to describe themselves, and language in this area is dynamic. Young people are more likely to describe themselves as non-binary. Transcend Australia, the leading national body for trans, gender-diverse and non-binary young people and their families, estimates that 2 per cent to 3 per cent of young people in Australia identify as trans. To quote Transcend Australia:
Trans young people have always existed. Society and health care services simply have an increased level of understanding on how to support and treat people. Young people are feeling safer to express themselves, it is important they continue to feel this way without shame or stigma and receive the support they need.
A study in 2021 by the Australian Research Centre in Sex, Health and Society at La Trobe University found that around 78 per cent of trans and gender-diverse Victorians have faced unfair treatment based on their gender identity. Transgender students have the right to feel safe at school. The Victorian government and the Department of Education are committed to providing safe and inclusive learning environments for all Victorian students, including trans and gender-diverse and indeed LGBTIQA+ students in our schools. The department’s number one responsibility is to support all students to feel safe and be safe at school, including LGBTIQA+ students. A student’s gender identity is a protected attribute under law. It is against the law to discriminate against a student because of their gender identity.
Our starting position in schools is to work with families, and for a variety of reasons students under the age of 18 sometimes ask to make decisions on their own behalf, without the involvement of their parents or carers, including when affirming their gender identity at school. Schools will continue to engage with parents unless the student is a mature minor and does not wish to be engaged with one or more of their parents. I very much appreciated the previous contribution on that topic. Programs to support children that are transitioning gender, like Safe Schools, save lives.
The Labor government is proud to be inclusive of all genders. The coalition’s support of this motion reeks of a leadership arrangement. It is appalling that the welfare of vulnerable young people who have historically suffered –
Ann-Marie Hermans: On a point of order, Acting President, I would just like to ask that you please draw the speaker back to the actual motion, please, which is about providing documentation for mature minors.
The ACTING PRESIDENT (Michael Galea): I draw the member’s attention back to the motion.
Jacinta ERMACORA: It is disappointing that the welfare of vulnerable young people who have historically suffered from terrible discrimination is being thrown around this chamber like a political football. There is only one party doing that, and that is the Liberal Party. They are compromising the welfare of young Victorians in order for John Pesutto to preserve his leadership. Imagine voting with Moira Deeming on this issue –
Ann-Marie Hermans: On a point of order, Acting President, once again this is an attack on the opposition, which has got absolutely nothing to do with this motion.
Harriet Shing: Further to the point of order, Acting President, every time we hear a motion from the opposition there are expansive contributions from people, and I would draw your attention perhaps to everything that Mr Davis has ever said in response to motions about the government. Critique is a part of the narrative which is advanced as a matter of course by the opposition. The precedent has been well set and established in fact by Mrs Herman’s side of the aisle, and on that basis I would say that the member is being entirely relevant to the point of the motion.
Ann-Marie Hermans: On the point of order, Acting President, regarding the comments made by Ms Shing, this is a motion that has been put forward by Moira Deeming, not by the opposition per se, so I think it is important that we keep the topic on hand to the actual content of this motion and do not start diverging onto attacks on the opposition.
The ACTING PRESIDENT (Michael Galea): From what I heard prior to this point of order, the member was reflecting on the opposition’s view on this motion. I am satisfied that that is within the relevancy of discussing this motion. I ask the member to keep the focus on the motion.
Jacinta ERMACORA: I am utterly confused as to why Mrs Deeming was expelled in the first place if the Liberal coalition are going to vote in support of this. It is –
Ann-Marie Hermans: On a point of order, Acting President, I am sorry, this is again not about the actual motion, which is an incredibly important motion and a very sensitive motion and it has been provided on behalf of vulnerable people. So I think it is incredibly important that the person who is actually speaking keeps that in mind and stays on topic.
Harriet Shing: On the point of order, Acting President, as Mrs Hermans has just indicated, this is about vulnerable people, and on that basis Ms Ermacora is outlining the very damage that is being caused because of the trivialisation and the political horsetrading that is being undertaken by those opposite. Again, there are so many examples of the opposition reflecting upon various positions taken. Ms Ermacora is responding to a contribution made by the opposition and is perfectly entitled to do so.
The ACTING PRESIDENT (Michael Galea): I would remind the member to focus on the motion, including reflections on other perspectives on the motion, but keep it to the motion where possible.
Jacinta ERMACORA: I am very excited to get to my last two sentences. So this is about vulnerable people and this is about throwing them under the bus for the sake of a political career, and I once again affirm the government’s position on standing up for LGBTIQA+ people and their community, and I will be voting this despicable motion down.
Ann-Marie HERMANS (South-Eastern Metropolitan) (16:42): I rise to speak to Moira Deeming’s motion, and I would like to actually start to go through this motion with a little bit more detail given that there have been a lot of motives impugned to this motion that are definitely not there. Even the actual mention of the LGBTIQ community is actually not in this motion, and so I am not really sure why there is so much anxiety when we are actually looking to provide the most vulnerable people, young people, the opportunity to be able to access their own data and records and for records to actually be made to protect them and to provide them with some sense of understanding in the decisions that they make and the way that they got to those decisions. I think that every person deserves to have access to that type of record making. I want to go through the motion a little bit if I can:
That this house:
(1) notes the Department of Education’s duty-of-care policy affirms the importance of harm minimisation when caring for children and adolescents …
I do not think that there would be a single person in this chamber that would have an objection to point (1). At the end of the day –
Members interjecting.
Ann-Marie HERMANS: Acting President, I am sorry, I cannot hear myself with the objections that are coming across from the other side of the chamber, which are really inappropriate. They are completely inappropriate.
The ACTING PRESIDENT (Michael Galea): Mrs Hermans to continue without assistance.
Ann-Marie HERMANS: I do not think there would be anyone here that is actually prepared to say that they are not wanting to support and protect young children and adolescents and that we all accept the Department of Education’s duty of care affirms the importance of harm minimisation. I think there would not be anyone in here who would not – not even the Greens sitting here. While we may object to a lot of things, we all actually recognise the importance of harm minimisation and the duty of care to children and adolescents.
Harriet Shing: On a point of order, Acting President, I am just wondering as a point of clarification whether this means now that the coalition does support the Safe Schools program as part of harm minimisation initiatives within education.
Ann-Marie HERMANS: I am sorry, this has got nothing to do with the motion. Could we please keep this on this important motion that these people deserve to have put forward?
Harriet Shing: Further to the point of order, Acting President, Mrs Hermans has just said, ‘I do not think that there is anyone in this chamber who would not want to ensure that harm to children is minimised,’ and on that basis I was getting to my feet to ask in fact if that means, as a point of clarification, that the coalition now supports the Safe Schools program that it initially and repeatedly opposed over many, many years.
The ACTING PRESIDENT (Michael Galea): There is no point of clarification in the standing orders.
Ann-Marie HERMANS: I would really appreciate it, Acting President, if you could allow me to use my time without having to deal with interjections from Ms Shing.
The ACTING PRESIDENT (Michael Galea): Please continue.
Ann-Marie HERMANS: Okay. Point (2) affirms that children and adolescents have the right to access accurate records relating to their own mature minor declarations. It does not matter what sex they are or what their sexual preferences are, to deny any person the right to have access to accurate records, we are setting up a state that is actually going to not allow people to have their own medical records and their own data and their own information on counselling. I have family that are doctors, so this is not an ill-informed conversation or even opportunity to speak that I am putting forward here. People deserve the right to be able to access their own records. How can they access their records if all these records are not being kept? The reason that we are actually really concerned in this area, or at least I am, is because I have met young people that have been through the process of transitioning who have said, ‘We cannot access information through this process. We cannot get this data now.’ And that concerns me. So it:
(3) calls on the government to mandate the creation of official records for declarations of mature minor status in Victoria, including but not limited to:
(a) details of the child/adolescent being declared, their parents or legal guardian, the adult, employee …
These are just simple details. If a person is actually being declared a mature minor, this information should be recorded. I know that Sarah rightly said that, as doctors, they keep these records. What concerns me is that it may be in some processes they are not being kept as accurately or as carefully as they need to be because technically it would mean that anybody that wishes to access this information should be able to through an FOI or through any other process. So:
(b) all information relevant to the mature minor status decision, including the specific purpose the status was granted and the reason for determining sufficient maturity and intelligence to understand the decision, including, if possible –
‘if possible’ is key –
(i) knowledge of and conversations with the child/adolescent …
Usually in case management records and in psychology assessments these records are kept. Psychologists write down and keep records, and in case management, social work and youth work I know that I as a case manager had to keep records. So one would think that these records are being kept, but I think the issue here is that a person should be entitled to be able to see those if down the track something develops and they go, ‘You know what, I want to understand that process.’ That is why I am really surprised that those opposite and even the Greens are saying they do not actually want to allow this to take place. This is not about impugning motives. I do not understand why this idea of trying to turn this into something like a culture war is necessary. It is not necessary. This is about –
Members interjecting.
Ann-Marie HERMANS: Mr Galea talked about the culture war, and I know that others have also mentioned it as being impugning motives that are simply not written here in the motion. You cannot see anything of that here in the motion. This is about providing people with the opportunity to be able to have records made and to be able to access those records down the track should they want to. I think that is for anybody that has been declared a mature minor.
I know that in the original case it was set up for young people particularly that were suffering from abuse. In the instance, let us just say, of a situation where there was incest or where there was physical sexual abuse taking place in the home where the child needed to have particular care, being a mature minor allowed them to be able to have that medical attention that they required. I know that that has been used in years gone by to allow doctors to help children in situations like that in the original early cases, and I say that having had a family member that has worked as a doctor with children who have been abused. So I know that it has been used in that instance. There are reasons that these things were set up, but the issue here is: are we going to deny people that have been declared as mature minors the opportunity to, number one, have proper records made when they are vulnerable and young and making decisions, some of which will be life altering? Are we going to deny them the right to have access to those records – complete records to be made and access to those records – so that they will be able to fully comprehend and understand decisions that have been made in their lives as mature minors in terms of anything to do with a medical process or an educational process? It is talking about support services and health professionals et cetera that work with a person who is declared a mature minor.
That is what this is about, and it is not to impugn motives that are simply not written into the motion or that are not there. It is to understand that everybody that is in this society and in this state should be able to access medical records that are made on their behalf at any age should they really need them for whatever reason. For their own mental health and for their own understanding they should be able to access them. In some cases this has not been the case. It has been very difficult. So it is simply putting this into writing and simply allowing this motion to be put up as a way of actually showing, yes, you do support the rights of children, you do support the rights of the vulnerable, you do support mature minors and you are prepared to allow them to not only have records made about things that are important to them, but also to be able to access them as an adult. That is what this is about.
Jeff BOURMAN (Eastern Victoria) (16:52): It has been a very interesting debate at the moment. I have learned more about mature minors and stuff like that in the last hour or so than I have ever learned, and it seems to me that the point of declaring someone a mature minor is that they are able to have a decision-making process that a person of that age may not necessarily be legally allowed to. It is a way of recognising that they are more mature in their outlook on something than their age may belie. That is all great; I do not have a problem with that whatsoever. My issue is I guess I am actually stunned that these records are not already being kept further down the track, because you are allowing minors to have –
Members interjecting.
Jeff BOURMAN: There is no mandating. Moving on, these records should be mandated for the child’s own protection, if nothing else. Down the track they may want to know what goes on. I am not getting into the trans thing. I am not getting into anything else, but it is actually telling that we just passed a motion in this place for more record keeping for greyhounds and here we are fighting about more record keeping for our vulnerable children. I will be supporting this. I am not part of the culture wars or any of that sort of stuff.
Harriet Shing: On a point of order, Acting President, Mr Bourman has just drawn parallels between LGBTIQA+ young people and dogs, and I would ask that he withdraw that immediately and unconditionally.
Jeff BOURMAN: Just on that point of order, I actually did not. What I did do was say that this place needs to have a look at itself at times, and it needs to understand that this is not all about culture wars. In this instance it is about record keeping. To insinuate that I think that LBGTQI+ people – and I apologise if I have left one out – are the same as dogs I think is frankly insulting to me because I would never do that, and I think the minister knows me well enough now.
Harriet Shing: On a point of order, Acting President, I am proud – not always proud, because it is hard to be proud in the face of so much appalling invective – to be a member of our LGBTIQA+ communities. I am personally offended by the way in which Mr Bourman’s sentence was constructed in inviting a comparison between the content of this motion and its effect, whether intended or otherwise, and parallels drawn between that and record keeping for animals. I would ask that he withdraw on the basis that I take personal offence to the way in which that sentence was constructed.
The ACTING PRESIDENT (Michael Galea): I will ask Mr Bourman to withdraw.
Jeff BOURMAN: I withdraw. But I will finish up by saying that I do support this. If nothing else, I just think, for the medical records of children down the track, this should have been mandated from day one.
Bev McARTHUR (Western Victoria) (16:56): I rise to speak on Mrs Deeming’s motion, and it is a motion about record keeping – that is what I see in it. And surely we should all support the concept that when anything is done to anybody in the medical space particularly, proper records should be kept and they should be accessible. I cannot see that this is controversial. We now have a situation in the health system where our records are available and kept. This is absolutely in the same category, so I do not understand why there should be any controversy about it.
We know that sometimes and for a variety of reasons students under the age of 18 wish to make decisions on their own behalf without the involvement of parents or carers, and if a student is considered a mature minor under the department’s mature minor and decision-making policy they can make decisions for themselves without parental consent. When this happens schools can play a role in supporting the young person. However, that can include the social transitioning of students from one gender to their chosen gender by changing their names and informing other students. Given the mature minor system, this can occur sometimes without the knowledge of parents. In March this year the Minister for Education replied to Moira, as I understand it, saying:
The department does not collect data on Victorian government … students who have been declared mature minors by an adult on school grounds.
This is frankly outrageous. Of course they should.
To go to these comments that have been made by some on the other side, this is not about a gender war. This is about ensuring the safety of children, and it is ensuring that as they become adults they can access records that caused a change in their life, potentially. It is absolutely right that they should have access to all the details of their mature minor status as it was used in maybe changing their gender.
Some of those who are most violently opposed to the transitioning of children are homosexual men and women. I stand alongside of them on numerous occasions, and they are the most concerned about this. I do not understand the attack on those that are proposing or supporting this motion – that somehow this is an attack on the LBGTI+ community. It is not. It is about children and adolescents under the age of 18 making decisions without, maybe, their parents’ involvement but then in later life being able to access the information. I do not understand why anybody would think this is an issue.
I think it was Mr Galea who referred to the Cass report. This is a landmark, comprehensive report on the highly questionable practice of transitioning children using medical intervention. These processes are irreversible. They are life changing, and they have consequences for the rest of their lives. I do not know whether those on the other side have ever been dealing with any detransitioners, but the lives of many of them have been made hell. Their physical situation has deteriorated, and of course it transpires that they had often psychological issues which caused them to think, and others encouraged them to think, that changing their gender was going to solve all their problems. Some of them have reported that domestic abuse was involved, which was why they thought their life would be made better if they went down this path, only to find their problems have got worse both physiologically and psychologically.
I think we have to do everything to make sure that children, whether they are mature minors or adolescents, have every capacity to access treatment and advice and counselling on how they can solve the problems that exist in their lives without physically changing their bodies for life. The surgeons who deal with this say that under the Hippocratic oath ‘Do no harm’ they do not want to be in a position to completely change a perfectly healthy body into something that is not a perfectly healthy body. You know, psychologists have been demonised for questioning this whole process. But all we are asking for here is to have these records mandated so that these adults, if they become adults, can access the records that caused them to be in the situation they find themselves in in later life. On that basis, we ought to be supporting the motion.
David LIMBRICK (South-Eastern Metropolitan) (17:02): I will try to stick very closely to the motion. Mr Galea made some comments about mature minors and how this law is actually interpreted and how it needs to take into account the Charter of Human Rights and Responsibilities and all these sorts of things, and I agree – that is true. Also Dr Mansfield made comments about the medical context with Gillick competence and these sorts of things, and of course that is also true. Dr Mansfield made the very correct observation that in medical contexts these records are kept, and they would need to be kept, so that is fine. But actually what I think Mrs Deeming is referring to is situations outside the medical context. If you are making these decisions, needing to take into account the Charter of Human Rights and Responsibilities, needing to make decisions about whether a child in this particular context for this particular decision is competent to make that decision or not, then it seems very strange to me that one would insist that records do not need to be kept. In fact the comments by the government and also by the Greens would seem to strengthen the case that Mrs Deeming is asking for, which is that records should be kept in these scenarios.
As has been pointed out by other contributions in this debate, some of these decisions are life-changing decisions, decisions that are made without parental consent. With some of these decisions made by children, they do in fact later in life come to realise that they have made a bad decision. They have made a bad decision, and it makes total sense that if they want to examine that, or indeed if they want to take legal action, because there are children who have later become adults and decided that they want to take legal action for things that were done to them by medical professions or indeed by the state itself, then they should have the ability to understand those decisions that were made and the thought processes that went into them and whether or not the Charter of Human Rights and Responsibilities was taken into account, whether Gillick competence was actually established and these sorts of things. The idea that these records are not necessary, the idea this can just be considered by someone in the school context and no records need to be kept and there is nothing that is able to be accessed in the future is frankly astounding considering the gravity of some of these decisions and the complexity. As has been pointed out by the government and the Greens, these are complex decisions that have many things that need to be taken into account and they should be kept on file, as is the case, as pointed out by Dr Mansfield, with doctors.
Doctors would not make these sorts of decisions without keeping a record. They keep all sorts of records for their patients. But in a school context, it does not have to be a doctor of course – it can be a teacher or indeed many other people that work within schools that can make these decisions. The idea that people think it is optional that whether or not these important decisions have some sort of record, I find frankly astounding. If people are going to decide that children can make decisions without their parents’ knowledge or consent, then records need to be kept for that. It is a very big decision, a very big action, to decide that without parental knowledge or consent. If you are going to override the rights of parents, you had better make sure that you get all your t’s crossed and your i’s dotted because this is a very serious thing.
We do not even know how many times these sorts of decisions have been made in schools, because there are no records. The government does not care about whether these records are kept. The government cannot answer how many times mature minor considerations have been taken into account, because there are no records. This is frankly an outrageous situation. Every parent in Victoria should be outraged by the government’s negligence, frankly, in this regard. These records must be kept.
Moira DEEMING (Western Metropolitan) (17:07): I thank everyone for their contributions today. I will just address some of the points that were raised today. Mr Galea raised bad faith actors in this space, people who hijack legitimate concerns by people like me and others and do spout hate and do make people like you feel uncomfortable. I just really do not want to give those kinds of people any attention or any empowerment. They do not have the right and they should not have the power or the ability to block us in this chamber from putting in ordinary child safeguarding standards and record-keeping standards that are just for the children impacted.
I did not demand that parents be told. As a parent I think they should be told, but I did not demand that today. I did not even ask for that today. I did not bring it up. I just asked that the kids themselves have the right to proper full records that they can go back to later if they need to.
I think it is discriminatory, since you brought it up, but this is actually the issue – the most serious and most high-risk decisions that can be made, as far as I can see, and that are commonly made are, yes, to do with gender transition in schools, which is being hotly debated all around the world. You cannot just say I am making up these concerns. They are legitimate medical psychological concerns, and they are borne out of love for kids just like you have. I am not trying to eradicate anybody; I am trying to make sure that there is proper care and that whatever we do it is based on evidence and reasonableness and that we are being careful with children.
It is discriminatory not to protect them and not to demand that records be kept. What a disgrace. What a disgrace to make this about something else, such a simple motion. It does not mandate that records are kept; it says that people can. Any adult on school grounds can consider these things and can declare them a mature minor.
Can I just say that from the perspective of a teacher, it is absurd to equate having the authority of a teacher to govern, basically, and have authority over kids as something that I have to keep signing off on every day when I tell them ‘Stand up’, ‘Sit down’, ‘You’ve got detention’, ‘Hand in your homework’, ‘Be quiet’ or ‘Remove yourself’. I can do all of that without filling out a form. That is ridiculous. Again, what an absurdity. Nothing that was said by you about what I said was actually contradictory to what I said.
Bringing up marriage equality and hate speech – I mean, that is just ridiculous. That has got nothing to do with anything here. This is not about children’s particular sexuality or their particular gender identity. I have told you there is no limit to what can be applied to these decisions. There is no limit. Can you imagine? There is no limit to other people and what they can decide behind a parent’s back and what a kid has the mental capacity to consent to. But why would they do it in any situation that was not serious, where you would not need to usurp parental rights and give mature minor status? And I am so sick and tired of people in this chamber and everywhere in society telling LGBTQ kids that if someone disagrees with them they hate them. What a disgraceful thing to do to children – stop telling them that they are hated. I am sure they actually do get enough genuine hate; you do not have to add imaginary hate to it.
The idea that it is okay for other people to declare my children to be mature minors because they might know my child very well – it is context dependent. Get out of here – nobody knows my children better than me. And if you think you do, that still does not give you the right to usurp my parental authority. I am a teacher; I am one of the people with the authority to declare your kids a mature minor. Does that make you uncomfortable? It should, because there is no way that I would know enough about your child in the interactions that I have in these big groups of children in whatever context that I have to make a decision like that. There is a saying: if you do not believe what the students tell you about me as a teacher, I promise not to believe what they tell me about you as a parent. All right? Let us just not forget that we are dealing with children, vulnerable children.
The other thing that was pretty disgraceful was the line that I heard that this motion is somehow throwing children under the bus. That is illogical and absurd and offensive. I do not know if anybody here noticed, but I am absolutely willing to burn my career to the ground for child safeguards, so that absolutely is garbage. Oh, my goodness, there are lots of other situations where this could be important. You think about the Rotherham rape situation: that was allowed to go on further than it ever should have even gotten, because they were not keeping good records – basic things are basic child safeguarding. All right, that is it; I am done. Thank you very much. Let us put it to a vote.
Council divided on motion:
Ayes (15): Melina Bath, Jeff Bourman, Gaelle Broad, Georgie Crozier, David Davis, Moira Deeming, Renee Heath, Ann-Marie Hermans, David Limbrick, Wendy Lovell, Bev McArthur, Joe McCracken, Evan Mulholland, Rikkie-Lee Tyrrell, Richard Welch
Noes (20): Ryan Batchelor, John Berger, Lizzie Blandthorn, Katherine Copsey, Enver Erdogan, David Ettershank, Michael Galea, Shaun Leane, Sarah Mansfield, Tom McIntosh, Rachel Payne, Aiv Puglielli, Georgie Purcell, Samantha Ratnam, Harriet Shing, Ingrid Stitt, Jaclyn Symes, Lee Tarlamis, Sonja Terpstra, Gayle Tierney
Motion negatived.