LGBT rights in Australia

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LGBT rights in Australia
Australia
Australia
Same-sex sexual activity legal? Legal since 1994 nationwide
Gender identity/expression -
Recognition of
relationships
Unregistered cohabitation in most areas of Australian law
Registered partnerships in ACT, Tasmania, and Victoria
(see below)
Adoption Varies by region (see below)
Military service Gays and lesbians allowed to serve openly since 1992
Discrimination protections (see below)

The recognition and rights of lesbian, gay, bisexual, transgender (LGBT) individuals and couples in Australia have gradually been increasing within the states and territories since the 1970s. Laws regarding sexual activity apply equally to same-sex and heterosexual activity in all Australian states and territories, except Queensland[1]. Every state and territory, as well as many local governments or councils, formally recognise both opposite-sex and same-sex relationships in some manner. The Australian Capital Territory (ACT) joined Tasmania in recognising same-sex unions formally in May 2008, followed in December by Victoria. Same-sex couples are legally allowed to adopt other people's children in Western Australia and the ACT, and may adopt their partner's stepchild in Victoria and Tasmania. It is not allowed in the other states and territories.

At the federal or Commonwealth level, same-sex marriage became officially prohibited in 2004 through the Marriage Legislation Amendment Bill. Since the 1 July 2009, same-sex couples receive the same level of recognition as de facto opposite-sex couples in federal legislation including tax, health, superannuation, and aged care. Despite calls from the federal government for all states to have consistent relationship registries, some states' family law does not include partner registration and LGBT parenting rights.

LGBT history and activism

History of Australian gay rights

Australia's early years

Early laws in Australia] were based on then-current laws in Britain, which were inherited upon colonisation in 1788. Lesbianism was never illegal in Britain nor its colonies, including Australia. Sodomy laws, however, were part of Australian law, from 1788 through to 1994 under Human Rights (Sexual Conduct) Act 1994. The punishment for "buggery" (sodomy) was reduced from execution to life in prison in 1899.[2]

Throughout the transportation period there was a severe imbalance between the sexes, convict and free, and large numbers of convicts were kept in relative or complete isolation from the other sex. Ample evidence exists of the prevalence of homosexual behaviour; it is intermittent in the early years but more abundant after the term of Governor Lachlan Macquarie.

In 1796 Francis Wilkinson became the first man to be charged with buggery (but acquitted). In 1822 an official inquiry into the sexual scandal that resulted from the movement of thirty female prisoners to the male prison farm at Emu Plains reported the rumour that the women had been placed there to prevent "unnatural crimes" on the part of the men.

In a secret dispatch of 1843 the Lieutenant Governor of Van Diemen's Land stated that women in the Hobart female factory have "their Fancy-women, or lovers, to who they are attached with as much ardour as they would be to the opposite sex, and practice onanism to the greatest extent."

Select committees of the British Parliament inquiring into transportation in 1832 and 1837 heard much evidence of the prevalence of sodomy. Major James Mudie testified that the prisoners called each other "sods" and that at Hyde Park Barracks in Sydney boy prisoners went by names such as Kitty and Nancy[3].

In 1951, the New South Wales Crimes Act was amended to ensure that "buggery" remained a criminal act "with or without the consent of the person", removing legal loophole of consent.

The gay rights movement

Gay and Lesbian Rights Movement groups were not organised in Australia until the late 1960s. An Australian arm of the Daughters of Bilitis, which formed in 1969 in Melbourne, is considered Australia's first gay rights organisation.

The Campaign Against Moral Persecution (C.A.M.P.) was founded in Sydney in September 1970.[2] C.A.M.P. raised the profile and acceptance of Australia's gay and lesbian communities. Soonafter, the Melbourne-based gay rights organisation Society Five was formed in 1971.[4]

Additional rights organisations followed, including The Gay Teachers Group,[5] and The Homosexual Law Reform Coalition, gay rights organisations which started in the late 1970s.

In 1972, the Dunstan Labor government introduced a consenting adults in private type defence in South Australia. This defence was later introduced as a bill by Murray Hill, father of former Defence Minister Robert Hill, In 1975, South Australia became the first state or territory to legalise sexual conduct between males.

Other states and territories repealed their laws between 1976 and 1990. The exception was Tasmania, which retained its laws until the Federal Government and the United Nations Human Rights Committee forced their repeal in 1997.

An estimated 500 people marched down George Street to a rally in Martin Plaza in Sydney on June 24, 1978. Organisers said the march and rally were part of "international homosexual solidarity day" to demonstrate against sexual repression in Australia and other countries.[6] The event recurred annually, becoming the Sydney Gay and Lesbian Mardi Gras which celebrated its 30th anniversary in 2008.

In 1984, the Australian Medical Association removed homosexuality from its list of illnesses and disorders.

The last gay man was arrested on 14 December 1984 in Hobart, Tasmania, when he was found having sexual conduct with another man on the side of the road in a car. He was sentenced to eight months jail.

In 1985, after consistent pressure from Gay and Lesbian Immigration Task Force (GLITF), changes were made to the Migration Act 1958 (Cth) allowing Australian Citizens and Permanent Residents to sponsor their same-sex partners to Australia through a new Interdependency Visa.

In 1994, the Commonwealth passed the Human Rights (Sexual Conduct) Act 1994 - Section 4,[7] legalising sexual activity between consenting adults (in private) throughout Australia. It wasn't until 1997 however when the law in Tasmania prohibiting gay male sexual conduct was repealed in Tasmania. However the ban on gay male sexual conduct was overturned in the courts in 1996 following Toonen v. Australia that gay male sexual conduct became formally legal in all Australian states and territories when the federal government passed the Human Rights (Sexual Conduct) Act 1994.[8]

The John Howard years

Between 1996 and 2007, during John Howard's term as Prime Minister, many attempts were made to reduce recognition of same-sex couples in federal legislation, as well as to thwart attempts by individual states to recognise unions of same-sex couples. Since the beginning of his term as Prime Minister, Howard has made his position clear on the gay rights issue. In January 1997, Howard refused to offer a message of support to Sydney Gay & Lesbian Mardi Gras and said on the TV program A Current Affair that he would be "disappointed" if one of his children were to tell him they were gay or lesbian. In August 2001 when asked in a Triple J (Australian radio station) interview where he placed himself on a scale of acceptance of homosexuality, one end being total acceptance and the other total rejection, Howard replied, "Oh I'd place myself somewhere in the middle. I certainly don't think you should give the same status to homosexual liaisons as you give to marriage, I don't."

In July 1996 the Howard Government reduced the number of interdependency visas, making migration for same-sex couples more difficult.

The UN Human Rights Commission declared Australia's Federal Government in violation of equality and privacy rights under the International Covenant of Civil and Political Rights in September 2003 after denying a man a de facto spouse veteran's pension based on his 38-year same-sex relationship. The request from the UN that Australia take steps to treat same sex couples equally was ignored. When directly questioned, Attorney General Philip Ruddock said that the government is not bound by the ruling.

In March 2004, Howard condemned Australia's first laws which would allow gay couples to adopt children in the ACT as part of a new ACT Bill of Rights. Howard said, "I think the idea of the ACT having a bill of rights is ridiculous. I'm against gay adoption, just as I'm against gay marriage."[9] The Commonwealth, however, did not overturn the legislation.

On May 27, 2004, approximately two months after the UK proposed its Civil Partnership Act 2004, federal Attorney-General Philip Ruddock introduced the Marriage Legislation Amendment Bill to prevent any possible court rulings allowing same-sex marriages or civil unions.[10] In August 2004, same-sex marriage was officially prohibited when the Marriage Act 1961 and the Family Law Act were amended in order to define marriage as a "union of a man and a woman to the exclusion of all others, voluntarily entered into for life". Amendments were also made to prevent the recognition in Australia of marriages conducted in other countries between a man and another man or a woman and another woman.

In March 2006, after the ACT government announced plans to create civil unions within the territory, the federal government vowed to block it.[11] Following the public outcry over Howard's move to kill the ACT bill, in April the Human Rights and Equal Opportunity Commission (HREOC) began a six month inquiry to hear from Australians about the federal government's treatment of gays.[12] The Howard Government banned its departments from making submissions to the inquiry into financial discrimination experienced by same-sex couples.[13]

In May 2006, Attorney General Philip Ruddock blocked a gay Australian man from marrying in Europe. Ruddock refused to grant a gay man living in the Netherlands a 'Certificate of No Impediment to Marriage' document required by some European countries before marriage, to prove foreigners are in fact single. Under Ruddock's instructions, no such documents were to be released to gay and lesbians individuals intending to marry overseas.[14] Following a request for the certificate the following statement was received:

In June, the ACT's civil union legislation was passed then disallowed by the Governor General. A second attempt to offer civil unions for same-sex couples in 2007 was again disallowed. The Governor General only disallowed the ACT legislation after being advised by the Executive Cabinet, although under the Constitution, the Governor Genral was not obliged to follow the advice of the Executive Cabinet. Plans were also made to introduce a federal bill preventing same-sex couples from adopting, but the idea was dropped after the 2007 elections.

Despite the reluctance of the federal government, individual states and territories were continuing to make inroads. Since 2001, Victoria has amended 60 Acts to include same-sex couples. In 2002, Western Australia removed all remaining legislative discrimination toward sexual orientation (including adoption) by adding the new definition of "de facto partner", and Queensland created a new, non-discriminatory definition of "de facto partner" within 61 pieces of legislation. In 2003, Tasmania became the first state to create a relationship registry for same sex couples, giving same-sex couples nearly equal rights to married couples, excluding adoption. In 2004, the Northern Territory removed legislative discrimination against same-sex couples in most areas of territory law, and the ACT began allowing same-sex couples to adopt. In 2005, the city of Sydney, in New South Wales, created a Relationship Declaration Program offering limited legal recognition for same-sex couples. In 2006, South Australia, the last state to recognise same-sex couples, amended 97 Acts, dispensing with the term "de facto" and categorising couples as "domestic partners". The city of Melbourne, in Victoria, provided a "Relationship Declaration Register" for all relationships and carers starting in 2007, which was followed in December with Victoria introducing a state-wide registry and amending 69 pieces of legislation to include couples who are in registered relationships.

Change in public opinion, leadership and policy

In June 2007, the results of a Galaxy poll commissioned by advocacy group GetUp! were released. The poll measured opinions of 1100 Australians aged 16 and over.[15]

  • 71% of respondents agreed that same-sex partners should have the same legal rights as de facto heterosexual couples.
  • 57% of respondents supported same-sex marriage. The poll suggests a 20-point jump in support since 2004, when Newspoll found 38% in favour and 44% against.[16]

In November 2007, the Liberal/National Coalition, led by John Howard, lost to the Australian Labor Party in the 2007 national federal election. Penny Wong (Labor) became the first openly gay member of a ministry. The Labor Government, led by Prime Minister Kevin Rudd, openly supported rights for same-sex couples, but not same-sex marriage. Liberal leader Brendan Nelson said he supported equal economic and social rights for gay couples, but not marriage, adoption or IVF.[17]

In 2008, federal Attorney-General Robert McClelland announced that they had gone beyond the 58 pieces of discriminatory legislation found by a recent HREOC inquiry, and that legislation to remove inequalities in 100 areas of the law would be introduced, giving gay couples the same treatment as heterosexual de facto couples with respect to federal legislation and services such as social security and veterans affairs.

Attempts in the ACT to offer civil unions for same-sex couples were attempted again under the new Labor federal government in 2008, but were again threatened to be disallowed. However, the federal government has stated that it is willing to accept state-based relationship registers so long as they don't mimic marriage by allowing a ceremony. In May, the ACT settled for creating a relationship registry similar to Tasmania and Victoria.

In April 2008, an informal readers poll in the online edition of The Age resulted in 79% of 2085 respondents saying that gay couples should be allowed to marry.[18]

In May 2008, a survey of 15,000 women aged 20 and above by the Australian Women's Weekly found that more than 70% said same-sex couples should have the same rights as heterosexual couples. This is consistent with the nationwide Galaxy poll results from June 2007.[19]

In 2009, a state-wide Galaxy poll commissioned by a coalition of gay rights groups in January found a majority of Queenslanders supported civil unions, marriage and full legal recognition of same-sex parents. The poll found that 60 per cent of Queenslanders believed same-sex couples should be able to have a civil union with the same legal rights and responsibilities as marriage, and 54 per cent believed same-sex couples should be able to marry.[20]

A nationwide Galaxy poll was conducted in June for Australian Marriage Equality which measured the opinions of 1100 Australians aged 16 or older. The poll found that 60% of Australians would support same-sex marriage, with 36% opposed. It also found that 58% of Australians would support the recognition of same-sex marriages formed in other countries in Australian law. The results suggested that support was strongest in New South Wales and weakest in Queensland and South Australia, though a majority in all states were in support.[21]

The ALP's national policy, as of 2009, supports state-based relationship registers for same-sex couples, not marriage. But in July 2009, a motion was passed at the ALP's Tasmanian state conference calling on the federal government to remove discrimination against gay and lesbian couples by changing the Marriage Act to include same-sex couples.[22] At the ALP national conference in Sydney a few days later, the federal government refused to change its position on same-sex marriage and registers, but agreed to remove the explicit definition of marriage being between a man and a woman from its national platform.[23]

Current Australian activist groups

Anti-discrimination and legal recognition

Commonwealth level

Same-sex relationships are legally recognised in federal legislation, but federal (Commonwealth) laws do not allow same-sex couples to legally marry.

Australia does not outlaw discrimination based on sexual orientation at the federal level. However, in response to Australia's obligation to implement the principle of non-discrimination in employment and occupation pursuant to the International Labour Organisation Convention No.111 (ILO 111), the Human Rights and Equal Opportunity Commission (HREOC) Act established the HREOC in 1986, and empowers it to investigate complaints of discrimination in employment and occupation on various grounds, including sexual orientation, and to resolve such complaints by conciliation. If it cannot be conciliated, the Commission prepares a report to the federal Attorney-General who then tables the report in Parliament. It is important to note that such discrimination is not rendered unlawful under the Act.

The Human Rights (Sexual Conduct) Act 1994 provided that sexual conduct involving only consenting adults (18 years or over) acting in private would not be subject to arbitrary interference by law enforcement. This applies to any law of the Commonwealth, State or Territory.[24]

As of 2007, The Commonwealth Government does not provide protections for "sexual orientation and gender identity" as yet in the Human Rights Commission Act 1981 (Commonwealth legislation).[25]

Immigration and sponsorship

In 1985, changes were made to the Migration Act 1958 (Cth) due to pressure from the Gay and Lesbian Immigration Task Force (GLITF). An interdependency visa was specifically created for same-sex couples, allowing Australian Citizens and Permanent Residents to sponsor their same-sex partners to Australia. Unlike married couples, de facto and interdependent partners must be able to prove a twelve month committed relationship. The temporary and permanent visas (Subclasses 310 and 110) allow the applicant to live, work, study and receive Medicare benefits in Australia.[26][27]

Military service

In 1992, the Australian Defence Force (ADF) ended its prohibition on openly gay or lesbian members serving in the military. The ADF also recognises "interdependent relationships", which include same-sex relationships, regarding benefits available to active duty members. This means equal benefits in housing, moving stipends, education assistance and leave entitlements. To be recognised as interdependent, same-sex partners will have to show they have a "close personal relationship" that involves domestic and financial support. The ADF also gives equal access to superannuation and death benefits for same-sex partnerships.[28]

Civil union proposals

After the United Kingdom began allowing same-sex civil partnerships in December 2005, Prime Minister John Howard said he would be opposed to legislation granting similar civil unions in Australia.

In 2006 the government of the ACT, led by Chief Minister Jon Stanhope, legislated for same-sex civil unions within the ACT. The legislation was overturned by the federal government with Philip Ruddock saying Stanhope was deliberately baiting them. Ruddock received criticism from the Greens party, but claimed that the ACT's policy was not for civil unions but for marriage which was legally defined within the The Marriage Legislation Amendment Bill.

In Australia, civil celebrants conduct commitment ceremonies so that gay and lesbian couples can participate in a ceremony to acknowledge their love and partnership. The federal government however has introduced a registration system whereby prospective celebrants must undergo Government-approved, accredited training and meet specific criteria set by the Attorney-General's Department to be declared a "fit and proper person" to hold the office of "marriage celebrant". Under the new rules a registered celebrant is not permitted to conduct legally binding commitment ceremonies for same-sex couples, although they may conduct non-legally binding ceremonies as long as both the couple and those attending are under no illusion that the ceremony is a legal marriage.[29]

Relationships registers

In 2007, Prime Minister Kevin Rudd said that the Government wanted to ensure same-sex couples had non-discriminatory access to tax, social security and inheritance entitlements, via nationally consistent laws and registers of relationships.[30] In December 2007, Rudd stated that the Government would be working on a national relationship register, similar to the one in Tasmania, which would officially record an existing same-sex relationship. Neither Rudd nor the Labor Party endorse the more controversial step of approving same-sex marriage or civil unions.[31] Since then, the policy expressed by federal Attorney-General Robert McClelland has been to encourage all states and territories to create their own state-based relationship registers, based on Tasmania's model, while the federal government amends Commonwealth legislation to recognise these registered relationships.

HREOC inquiry and reforms

Following threats of disallowance of the proposed ACT civil unions legislation and subsequent complaints of discriminatory treatment, a national inquiry was launched by the Human Rights and Equal Opportunity Commission (HREOC) in April 2006, which investigated financial and work-related discrimination toward same-sex relationships.[12] On 21 June 2007, the HREOC released its 'Same-Sex: Same Entitlements' report. The Commission identified 58 Commonwealth law statutes and provisions that explicitly discriminate against same-sex couples and, in some cases, their children, by using the term 'member of the opposite sex'.[32]

In February 2008, Attorney-General Robert McClelland said that his department had gone beyond the HREOC 58, identifying a total of 100 laws that discriminate against same-sex couples and hoped to see some kind of action by the middle of the year. On 16 April, the Rudd government was considering delaying the reforms (an estimated AUD$400million over 4 years) until 2009. This estimate fell considerably short of the projected AUD$1billion the Howard government believed the law reform would cost.[33][34] However two weeks later on 30 April 2008, federal Attorney-General, Robert McClelland, announced that legislation to remove inequalities in 100 areas of the law would be introduced when Parliament resumes in May for the winter sittings. The proposed legislation would afford same-sex couples the same treatment as heterosexual de facto couples, with a delayed implementation in areas like social security and veterans affairs to be completed by mid-2009. Other areas to be reformed included health, aged care, veterans' entitlements, workers' compensation, employment and entitlements. All the changes would be operational by the middle of 2009; most will begin as soon as legislation is passed.

The superannuation bill was expected to pass the Senate before July 1,[35][36] however the Coalition established an inquiry to look at whether the reforms should include people in other forms of interdependent relationships.[37] Several conservative MPs moved to stop the plan, warning that replacing the terms "husband and wife" with "partner" could undermine the traditional role of marriage.[38] Liberal MP Stuart Robert warned that by replacing references to a "marital relationship" with a "couple relationship" in the super laws, it may "slowly chip away at the institution of marriage". He also opposed moves in the bill to give inheritance rights to the children of a non-biological gay parent.[39] The coalition has used its Senate majority to delay legislation removing same-sex discrimination from commonwealth laws until the end of September.[40][41][42][43]

Social Security Act 1991

From 1 July 2009 changes to legislation will mean that customers who are in a same-sex de facto relationship will be recognised as partnered for Centrelink and Family Assistance Office purposes. All customers who are assessed as being a member of a couple will have their rate of payment calculated in the same way.[44]

Inheritance and property rights

Without the automatic legal protections that married couples receive under the law with regard to inheriting assets from their partners, same sex couples have had to take specific legal actions. Individuals are not entitled to a partial pension if their same-sex partner dies. Gay and de facto couples who separate did not have the same property rights as married couples under federal law and were required to use more expensive state courts, rather than the Family Court, to resolve disputes. The plan to grant equivalent rights to gays and de factos had been up for discussion since 2002, and all states eventually agreed, but the change was blocked because the Howard government insisted on excluding same-sex couples.[45]

In June 2008, the Rudd Government introduced the Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008 to allow same-sex and de facto couples access to the federal Family Court on property and maintenance matters, rather than the state Supreme Court. This reform was not part of the 100 equality measures promised by the Government but stem from a 2002 agreement between the states and territories that the previous Howard Government did not fulfill.[46][47] Coalition amendments to the bill failed and it was passed in November 2008.[48]

State and territory level

At state and territory levels, there is some form of recognition for same-sex couples, mainly through being considered in de facto relationships.

Same-sex couples, in the ACT, Tasmania, Victoria and New South Wales may enter into a "registered relationship". This provides conclusive proof of the existence of the relationship, thereby gaining the same rights afforded to de facto couples under state and federal law without having to prove any further factual evidence of the relationship. In this way, a registered relationship is similar to a registered partnership or civil union in other parts of the world.[49]. In South Australia same-sex couples can prove their relationship through an agreement, known as the Domestic Partnership Agreement. In Western Australia, Northern Territory and Queensland, same-sex and de facto couples often must go to court to prove a relationship exists.

The inability of same sex couples to have conclusive evidence of their relationships can make it difficult for them to access rights accorded to them under the law. In November 2007, with the Labor party winning a large number of seats in all levels of government, debate about civil partnership(s) was re-introduced.[50][51][52]

All states and territories of Australia (except for Queensland), have age of consent legislation that applies equally regardless whether the participants are male or female, same-sex or opposite-sex. Queensland's age of consent is 16, however it still has a "sodomy law" in their statutes dating back to 1990, punishing anal sex involving any person under 18 with up to 14 years in prison.[1]

Official relationship status Anti-discrimination legislation Pending legislation
ACT Yes Civil Partnership Yes -
New South Wales Yes Domestic Partnership (Registry) Yes
Northern Territory Defined as 'De facto', no registry Yes -
Queensland Defined as 'De facto', no registry Yes
South Australia Yes Domestic Partnership (Agreement) Yes -
Tasmania Yes Registered Partnership (Registry) Yes -
Victoria Yes Domestic Partnership (Registry) Yes -
Western Australia Defined as 'De facto', no registry Yes -

ACT

The ACT Discrimination Act 1991 prohibits discrimination based on sexuality and transexuality (and other grounds) in: access to premises; membership or services of a club; access to or membership of a professional or trade organisation; provision of goods, services or facilities; accommodation; partnerships and qualifying bodies; education; requests for information; work and employment.[53] Its also unlawful to discriminate against same-sex parents in relation to their employment entitlements, hence enabling same-sex parents to access parental leave.[54] The first legislation to officially recognise same-sex couples in the ACT was the Domestic Relationship Act 1994.

Six extra acts came into force that was passed by the John Stanhope Government between 2003 and 2004 to get rid of all discrimination against same sex couples - including parentage, IVF access and adoption.

Multiple attempts were made by the ACT to recognise Civil Partnerships starting in 2006 under Chief Minister Jon Stanhope. The Civil Unions Act 2006, which created civil unions for same-sex and opposite-sex couples and made them legally equivalent to marriage, was enacted on 9 June 2006, but quickly disallowed by the Governor-General on 13 June 2006. A second ACT bill, the Civil Partnerships Bill 2006, was blocked again in February 2007.

In May 2008, after several attempts to amend the scheme, the Territory abandoned its civil partnerships legislation and settled for a system of relationship registers virtually identical to the ones operating in Tasmania and Victoria. The Civil Partnerships Act 2008 commenced on 19 May 2008, giving same-sex couples increased access to superannuation, taxation and social security law reforms. While legislative ceremonies were removed from the Bill, an administrative ceremony may be performed by a representative the ACT Register-General.[55][56]

The Civil Partnerships Amendment Bill 2009, presented to the ACT Legislative Assembly by the ACT Greens, was passed in November 2009, allowing ceremonies to be conducted with civil partnerships, which was the contentious item removed from last years' legislation. This made the ACT the first territory in the country to formally legalise civil partnerships ceremonies for gay couples.[57][58]

New South Wales

Northern Territory

In March 2004, the Northern Territory enacted the Law Reform (Gender, Sexuality and De Facto Relationships) Act 2003 to remove legislative discrimination against same sex couples in all areas of territory law - except adoption. The Act removed distinctions based on a person's gender, sexuality or de facto relationship in approximately 50 Acts and Regulations. As in NSW, Tasmania, Victoria, Western Australia, the ACT and the federal government reforms has also included enabling the lesbian partner of a woman to be recognised as the parent of their partner’s child across Northern Territory law under section 5(da) of the Status of Children Act (this is called "parentage"). Members of the Legislative Assembly in the Northern Territory can take their same-sex partners with them on overseas trips at taxpayer expense, the territorial Remuneration Tribunal ruled on 9 December 2003. The tribunal redefined a de facto spouse as a "person who is not married to the Member, but is in a marriage-like relationship with the Member."[59]

The Northern Territory Anti-Discrimination Act 2007[60] prohibits discrimination based on sexuality.[61]

Queensland

South Australia

Tasmania

Despite the federal government passing legislation decriminalising gay male sexual conduct in 1994, it wasn't until 1996 when the law in Tasmania prohibiting gay male sexual conduct was overturned by the High Court of Australia and then finally repealed on 1 May 1997, making Tasmania the last state to decriminalise gay male sexual conduct. Tasmania has since become the most progressive state, being the first to create a state-wide registry for same-sex relationships in 2003.

The Tasmanian Anti-Discrimination Act 1998[62] prohibits discrimination based on sexual orientation (and other characteristics) in: employment; education and training; provision of facilities, goods and services; accommodation (including residential and business); membership and activities of clubs; and administration of any law of State or any State program.[62]

Tasmania's Relationship Act 2003 provides for registration and recognition of a type of registered partnership in two distinct categories: Significant Relationships and Caring Relationships. These relationships provide a limited number of rights in the areas of Superannuation, Taxation, Insurance, Health Care, Hospital Visitation, Wills, Property Division, and Employment Conditions (such as parenting and bereavement leave).[63]

The Relationships (Consequential Amendments) Bill 2003 was debated at the same time as the Relationships Bill 2003. Approximately 70 Tasmanian Statutes were identified that discriminated against same sex and other non-traditional relationships, and this bill would have amended discriminatory relationships legislation by removing narrow definitions of ‘de facto spouse’ or ‘partner’ and replaced them with gender neutral definitions to include same sex partners. It failed to pass.[64][65]

The Greens' Nick McKim tabled the Same-Sex Marriage Bill on 1 July 2008 which would have made Tasmania the first place in the country to let same-sex couples marry. The Government and Opposition voted down a previous attempt by the Greens to allow gay marriages.[66] A Senate inquiry in November 2009 rejected the bill.[67][68][69][70]

Victoria

Western Australia

Western Australia passed The Equal Opportunity Act 1984[71] which includes "sexual orientation/sexuality/gender identity", making it illegal to discriminate in clubs, pubs, other establishments, restaurants, housing, memberships to establishments, goods and services, education and training, etc.

The Acts Amendment (Lesbian and Gay Law Reform) Act 2002 removed all remaining legislative discrimination toward sexual orientation by adding the new definition of "de facto partner" into 62 Acts, provisions and statutes. Western Australia allows same-sex couples equal access to adoption procedures and in vitro fertilisation treatment. It also gives same-sex couples the same rights as opposite sex couples in areas such as transfer of property, medical treatment, and inheritance upon the death of a partner. A same-sex couple who utilise artificial insemination or 'in vitro' fertilisation treatment together (i.e., both parties present as a couple throughout the treatment) are able to have both names on the birth certificate once the child is born.

Adoption and laws relating to having children

Family Law in Australia with regards to children is often based on what is considered to be in the best interest of the child. The traditional and often used assumption is that children need both a mother and a father, which plays an important role in divorce and custodial proceedings, and has carried over into adoption and fertility procedures. As laws within the whole of Australia since 1 July 2009 have only begun to recognise de facto same-sex couples under the Family Law Act 1975[2], there are very limited areas where same-sex couples have rights with respect to conceiving, adopting, and rearing children. Additionally, women (particularly birth mothers) are generally given more rights over children than men, giving more room for lesbian couples to adopt and have genetic children. Male couples have virtually no legal opportunities to become legally recognised parents aside from adoption except in cases of drug abuse, mental illness, and physical, sexual, and emotional abuse from the mother.

Same-sex couple joint petition LGBT individual adoption Same-sex stepparent adoption
ACT Yes Yes (since 2004) Yes Yes (since 1993)[72] Yes Yes (since 2004)
New South Wales No No (under review since 2006) Yes Yes (since 2000)[73] No No
Northern Territory No No Only in exceptional circumstances[74] No No
Queensland No No (under review since 2008) Yes Yes (since 2009)[75] No No
South Australia No No No singles, must only be an opposite-sex couple (married or cohabitating)[76] No No
Tasmania No No (under review since 2003) Yes Yes [77] Yes Yes (since 2004)
Victoria No No[78] (under review since 2007) Yes Yes [79] No No (recommendations under consideration since 2007)
Western Australia Yes Yes (since 2002) Yes Yes [80] Yes Yes (since 2002)

Same-sex parent adoption

Adoption for same-sex couples is currently available in Australian Capital Territory and Western Australia.[81] In Tasmania, only stepparent adoption is allowed.[82] In New South Wales, same-sex couples cannot legally adopt a child under the Adoption Act 2000, but allows single LGBT people to adopt as single or become foster parents.[83][84] In Queensland, same-sex couples cannot legally adopt a child under the Adoption Act 2009, but allows single LGBT people to adopt as single or become foster parents.[85][86] Single LGBT people may adopt in some states, but individuals seeking to adopt are considered less of a priority than couples and lengthy waiting lists for adoption make it virtually impossible. Individuals may usually only adopt a child with special needs or in cases of exceptional circumstances. The Northern Territory, New South Wales and South Australia are expected to hand down findings reports by May 2008 to consider legalising adoption for same-sex couples.

Western Australia became the first Australian state to allow same-sex adoptions when its Labor government passed the Acts Amendment (Lesbian and Gay Law Reform) Act 2002 which in turn amended the Adoption Act 1994 (WA). This allowed same-sex couples to adopt in accordance with criteria that assesses the suitability of couples and individuals to be parents, regardless of sexual orientation.

Australia's first legal gay adoption, by two men, occurred in Western Australia in June 2007.[87][88][89][90] Subsequently, on 2 August 2007, the federal government under Prime Minister John Howard announced it would legislate to stop same-sex couples adopting a child from overseas, and would further not recognize adopted children of same-sex couples. The federal Coalition’s proposed Family Law (Same Sex Adoption) Bill would amend the Family Law Act 1975 and override state and territory laws that currently cover international adoptions. The bill was due to be introduced in the spring 2007 session of parliament, but has been taken off the agenda following the 2007 federal election.[91][92]

In July 2009 the NSW Law and Justice Committee decided that the Adoption Act 2000 should be amended to allow same-sex couples the right to adopt. Committee chair Christine Robertson said, "The committee has concluded that reform to allow same-sex couples to adopt will help to ensure that the best interests of children are met by our adoption laws."[93]

Same-sex stepparent adoption

In Western Australia and the ACT, lesbian co-mother or gay co-father may use stepparent adoption provisions, although female couples in those states whose children were born through assisted conception may not actually need to adopt them, as the law there presumes the mother's female partner to be a legal parent as long as she consented to the conception.[94] In [Tasmania, same-sex stepparent adoption (where one partner is the biological parent of the child) became legal in 2001.[95][96] As of 2008, half of the states and territories, allow both same-sex partners to have a legally-recognised relationship with their child.

However, even those laws contain a general presumption against making an adoption order because an adoption order severs the legal relationship between the child and one of the child’s birth parents. Due to the serious consequences of an adoption order, all stepparent adoption laws (including those applying to opposite-sex couples) contain a strong preference for dealing with new parenting arrangements through a parenting order rather than an adoption order.

In states and territories where same-sex stepparent adoptions are not allowed, the lesbian co-mother or gay co-father may apply to the Family Court of Australia for a parenting order, as ‘other people significant to the care, welfare and development’ of the child. It provides an important "status quo" if the birth mother were to die, so for example other family members could not come and take the child. But the lesbian co-mother and gay co-father will be treated in the same way as a social parent is treated under the law; they will not be treated in the same way as a birth parent.[97]

The Human Rights and Equal Opportunity Commission (HREOC) issued a report in 2007 entitled National Inquiry into Discrimination against People in Same-Sex Relationships recommended amending or creating laws recognising the relationship between a child and both same-sex parents. In particular, "‘Stepparent adoption’ laws should more readily consider adoption by a lesbian co-mother or gay co-father. This will require amendments to remove the prohibition on same-sex stepparent adoption in all state and territory laws other than in WA, the ACT and Tasmania." The final report of the Same-Sex: Same Entitlements Inquiry was tabled in Parliament on 21 June 2007.[98]

Assisted reproduction and surrogacy

Assisted Reproductive Technology (ART) and surrogacy comes under the jurisdiction of states and territories in Australia so national legislation cannot be used to regulate its practice. In Vitro Fertilization technologies, artificial insemination, and other reproductive technologies are legal in nearly all states and territories. South Australia is the only state that bans altrustic surrogacy for singles and same-sex couples and also limits access to IVF to those who are infertile or carrying a genetic disorder.[99]

Commercial surrogacy and related advertising remains illegal in all states and territories except for the Northern Territory where there are no laws or regulations regarding surrogacy arrangements. Altruistic surrogacy, where the surrogate receives no financial reward for her pregnancy or the relinquishment of the child, is legal in the Australian Capital Territory, New South Wales[3], Victoria, Western Australia and Queensland[4]. With altruistic surrogacy, only expenses related to the pregnancy and birth are paid by the intended parents such as medical expenses, maternity clothing, and other related expenses.

Currently, the practice of altruistic surrogacy in Tasmania is illegal as it is the only place in Australia to do this[5] and there is no legislation and/or regulation on surrogacy at all in the Northern Territory. In November 2006, Attorneys-Generals from all states and territories agreed in principle to uniform surrogacy regulations which meant couples would no longer have to travel to avoid illegal arrangements in their home state after Victorian Senator Stephen Conroy and his wife, Paula Benson, revealed that their daughter Isabella had been born to a surrogate mother in Sydney via the in-vitro fertilisation of a donated egg.[100][101][102] In April 2007, Federal Attorney-General Philip Ruddock called for national surrogacy laws, so couples in some states no longer have to travel elsewhere to undergo the procedure legally.[103]

Obtaining legal parental rights for same sex partners of birth parents has only recently been addressed in limited ways. All states and territories (except South Australia) recognise female co-mothers as birth parents of children conceived through in vitro fertilisation or artificial insemination. Male couples who arrange altruistic surrogacy (since commercial surrogacy is illegal) using one partner's sperm, which may be legally possible in the ACT, Western Australia, Queensland and Victoria, will face legal difficulties gaining rights for the genetic father as a 'sperm donor', and terminating the surrogate mother's rights (ideally through a stepparent adoption), which will be required in order to obtain legal recognition for the non-biological male partner. A growing number of male couples from around the world are attempting to become parents through surrogacy in America due to its favourable laws.[104] However, it is a criminal offence for a person ordinarily resident in Queensland or the ACT to enter into a commercial surrogacy arrangement anywhere in the world.

ART/IVF for surrogates of male couples ART/IVF for lesbian couples Commercial Surrogacy Altruistic Surrogacy Automatically recognize non-genetic parent at birth
ACT Yes Yes Yes Legal No Illegal Yes Legal Yes Yes (for all couples)
New South Wales No No Yes Legal No Illegal No laws at this point in time, but proposed legislation is coming soon[6] Yes Yes (female couples), No No (male couples)
Northern Territory No No Yes Legal No Laws at this point in time No laws at this point in time Yes Yes (female couples), No No (male couples)
Queensland Yes Yes Surrogacy Act 2010</ref> Yes Legal No Illegal Yes Legal[105] Yes Yes (for all couples)[105]
South Australia No No No Only allowed for "medically infertile" women No Illegal No Illegal (banned for singles and same sex couples); Yes Legal (for heterosexual couples who are married or in a de facto relationship)[106] No No
Tasmania No No Yes Legal No Illegal No Illegal[107] Yes Yes (female couples), No No (male couples)
Victoria Yes Yes Yes Legal No Illegal Yes Legal Yes Yes (for all couples)
Western Australia Yes Yes Yes Legal No Illegal Yes Legal Yes Yes (for all couples)

ACT

The Parentage Act 2004 made non-commercial surrogacy legal but the birth mother and her husband were deemed to be the parents unless the genetic parents adopt the child back. In 2000, The ACT became the first state or territory to allow the genetic parents who are heterosexual of a child born through surrogacy to become its legal parents, allowing them to easily obtain a parenting order and avoid adoption.[108][109] It is illegal to advertise for a surrogate and to pay for a surrogate or an ovum donor. When two women are in a same-sex relationship, and one of them gives birth as a result of ART, her partner is presumed to be a parent of the child. The ACT’s birth registration process allows for a person to be registered as a ‘mother’, ‘father’ or ‘parent’, enabling lesbian couples to be recognised as parents on a child’s birth documents.

New South Wales

Northern Territory

The Northern Territory was the second jurisdiction to extend a presumption of parentage to lesbian partners in 2003 with its Status of Children Act 2003, following Western Australia's lead in 2002.[110][111]

Queensland

South Australia

Tasmania

The Status of Children Act 1974 states that the woman who gives birth to the child is the mother, regardless of genetics. The Act does make a mention of "parentage" of both co-mothers in section 10C, however a report back in 2003 by the Joint Standing Committee on Community Development proposed amending the Act to recognise the lesbian partner as a parent via the Relationships (Consequential Amendments) Bill 2003 but it failed to pass in the upper house by just one vote.[112] In June 2009, the Relationships (Miscellaneous Amendments) Bill proposed reform to the state’s Adoption Act and Status of Children Act, allowing non-biological lesbian parents to be legally considered the parents of a child conceived using IVF.[113] The bill passed the lower house 45-3 on 20 August, opposed by three Liberal MHA's who had been given a conscience vote. The Legislative Council (Upper House) ratified the bill with amendments to back date the law to 1.1.2004 in October without dissent.[114] The lower house approved of the amendments made in the upper house in November 2009 and then passed the Tasmanian parliament [7].

The Surrogacy Contracts Act 1993 made surrogacy illegal and surrogacy contracts void.[115] In April 2008, altruistic surrogacy in Tasmania began undergoing a parliamentary inquiry after the nation's Attorneys-General agreed to develop a uniform framework to allow conditional, non-commercial surrogacy.[116] The committee's final report was issued in July, recommending a form similar to Western Australia, where non-commercial contracts are legal but unenforceable.[117][118][119]

Victoria

Western Australia

The Human Reproductive Technology Act 1991 (WA) established that in order to use any ART, a woman must be unable to conceive a child due to medical reasons (clinical infertility) and "persons seeking to be treated as a couple must be married or in a de facto relationship and must be of the opposite sex to each other".[120]

In 2002, the Artificial Conception Act 1985 was amended to deal with lesbian couples. It stated that, where a woman who is in a de facto relationship with another woman undergoes, with the consent of her de facto partner, an artificial fertilisation procedure, the de facto partner of the pregnant woman is conclusively presumed to be a parent of the unborn child and is a parent of any child born as a result of the pregnancy.[121]

Western Australia’s Registry of Births, Deaths and Marriages allows for registration of a parent other than a ‘mother’ and/or ‘father’ on the birth documents of the child. The birth registration form provides same-sex couples with the option of describing themselves as ‘mother’ and ‘parent’; ‘mother’ and ‘mother’; or ‘parent’ and ‘parent’. Provided proper consent has been given by both the woman and her same-sex partner, the partner will conclusively be presumed to be the parent of any resulting child.

The Surrogacy Bill 2007 was passed by the Legislative Assembly (Lower House) in September 2007, and was referred to the Standing Committee on Legislation within the Legislative Council (Upper House) in November 2007. It was sent back to the Legislative Council with amendments for a third reading in June 2008. The legislation was passed on the 4th of December 2008.[122][123]

Other areas of LGBT rights

The Australian Red Cross Blood Service bans blood donations from men who have had sex with men (MSM) in the previous twelve months. Several other countries also have MSM bans ranging from one year to lifetime or permanent deferral. The policy was challenged in 2005 with the Tasmanian Anti-Discrimination Tribunal.[124][125] Four years later in May 2009, the tribunal dismissed the complaint saying that it was "unsubstantiated".[126][127]

Opposition groups

Political groups

While the Australian Labor Party has been generally supportive of many rights for gay couples and families, they have continually supported policies which define marriage in Australia as exclusively between a man and a woman. In 2009, they removed the explicit definition of marriage being between a man and a woman from its national platform.

The Liberal Party of Australia is a socially conservative party, although it has a minority socially liberal wing. In recent years, under John Howard, it has moved to a more conservative policy agenda.

The National Party of Australia is a socially conservative party that opposes LGBT adoption, same-sex marriage, IVF, civil unions, and is opposed to most if not all legal rights for same-sex couples. In 1984, the National Party leader Ian Sinclair criticised the Labor party for accepting homosexuality as normal, which he claimed resulted in the spread of AIDS.[128]

The Family First Party, a minor political party, emphasises socially conservative family values. Family First opposes LGBT adoption, IVF treatment for lesbians, and opposes same-sex marriage and civil unions, stating their declaration of marriage as "a union of a man and a woman".[129].

The Christian Democratic Party, a minor conservative political party established in 1977, concentrates almost exclusively on moral issues such as abortion, homosexuality and pornography, and has recently made opposition to same-sex marriage a major part of its platform.

The Democratic Labor Party (DLP) is a minor, socially conservative political party in Australia that opposes same-sex rights and same-sex marriage.

Religious groups

The Australian Christian Lobby, formed in 1995, and the Catholic Australian Family Association, formed in 1980, strongly oppose same-sex rights such as adoption and marriage.

Peter Jensen, Archbishop of the Evangelical Anglican Diocese of Sydney, has vigorously opposed homosexuality, stating that accepting homosexuality is "calling holy what God called sin."[130] Leaders of the Anglican Church of Australia have called for the removal of the proposed ACT Civil Union legislation, because they "believe this proposal actually threatens and compromises the traditional Christian view of marriage between a man and a woman."[131]

The Catholic Archbishop of Sydney Cardinal George Pell, the Catholic Church according to George Pell believes and teaches that sexual activity should be confined to married couples, a man and a woman, and opposes all extra-marital sexual activity. The Catholic Church will continue to oppose legitimizing any extra-marital sexual activity, including homosexual activity. It will also continue to oppose homosexual propaganda especially among young people he states.[132]

The Australian Federation of Islamic Councils, considered Australia's most important Islamic organisation, came out strongly against removing discrimination against same-sex partners in federal law. Chairman Ikebal Patel said such moves would threaten the "holy relationship" of marriage between a man and woman and the core values of supporting families.[133]

The Salt Shakers is a Christian Ethics Action Group based in Melbourne, Victoria. It includes people from a number of Christian denominations and provides resources to Christians and churches. They also operate in the public arena by consulting, lobbying and presenting a Christian perspective on issues affecting society. This includes sending press releases, giving interviews for current affairs and other programs, making submissions to government, monitoring TV standards. They believe homosexuality is a sin.[134]

The Christian organization Exclusive Brethren ran full page advertisements in various newspapers to criticizse Tasmanian Greens' pro-Gay policies such as same-sex marriage, LGBTgay adoption and fostering (something already partially recognized by Tasmanian law) in the lead up to the 2006 Tasmanian State Election.[135]

Gender Matters is a coalition of seventeen groups and organisations formed in October 2008, including the Australian Family Association, the National Alliance for Christian Leaders, Exodus, the Fatherhood Foundation and Salt Shakers, promoting traditional gender roles. Some of their demands include: That marriage be “forever preserved as the voluntary exclusive union of one man and one woman”; That adoption be restricted to heterosexual couples; That IVF and other reproductive technologies are reserved exclusively for heterosexuals; And a ban on same-sex civil unions and registers.[136]

Since 2003, the United Church in Australia has allowed sexually active gay men to be ordained as ministers, with each individual presbyteries given discretion to decide the matter on a case-by-case basis.[137]

The Reform Jewish community in Australia tends to support LGBT rights, whereas the Orthodox branches tend to take a more conservative approach.

The 2010 legal situation regarding the recognition of relationships in Australia

De facto relationships status Registered relationships status Anti-discrimination legislation Adoption and foster parenting Recognition of parents on birth certificate Access to fertility (such as ART, IVF, surrogacy, AI, etc.)
ACT Yes Yes Yes Yes Yes Yes
Commonwealth of Australia Yes No (promised) No (promised) Yes (family law) Yes (family law) Yes (family law)
New South Wales Yes Yes Yes No (under review) Yes Yes
Norfolk Island Yes No Yes Yes Yes Yes
Northern Territory Yes No Yes No Yes Yes
Queensland Yes No (promised) Yes No (under review) Yes[105] Yes
South Australia Yes No Yes No No No
Tasmania Yes Yes Yes Yes Yes Yes
Victoria Yes Yes Yes No (under review) Yes Yes
Western Australia Yes No Yes Yes Yes Yes

See also

Notes

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  4. Kaplan, Gisela (1996). The Meagre Harvest: The Australian Women's Movement 1950s-1990s. St Leonards, 93. 
  5. "Melbourne Gay Teachers and Students Group" A gay bibliography - Melbourne Gay Teachers Group.
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  8. HUMAN RIGHTS (SEXUAL CONDUCT) ACT 1994
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  68. Same-Sex Marriage Bill
  69. Same-Sex Marriage (Celebrant and Registration) Bill
  70. Same-Sex Marriage (Dissolution and Annulment Bill
  71. EQUAL OPPORTUNITY ACT 1984
  72. ADOPTION ACT 1993
  73. ADOPTION ACT 2000
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  106. Statutes Amendment (Surrogacy) Act 2009
  107. Surrogacy Contracts Act 1993
  108. Parentage Act 2004
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  137. HOMOSEXUALITY AND THE CHURCH. Retrieved on 2009-09-25.

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