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. 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 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. As of
2009, same-sex couples receive the same level of
recognition as 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.
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, also known as C.A.M.P., was founded in
Sydney in September 1970. 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.
Additional rights organisations followed, including The Gay
Teachers Group, 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 as a protest march and
commemoration of the
Stonewall
Riots. Organisers said the march and rally were part of
“international homosexual solidarity day” to demonstrate against
sexual repression in Australia and other countries.
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, legalising
sexual activity between consenting adults (in private) throughout
Australia.
It wasn't until 1997 however when the law in
Tasmania prohibiting homosexual sex was overturned in the
courts following Toonen
v. Australia that homosexual activity
became legal formally in all Australian states and
territories.
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." 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. 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. 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. The Howard Government banned its departments from making
submissions to the inquiry into financial discrimination
experienced by same-sex couples.
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. 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.
- 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.
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.
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.
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.
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.
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.
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. 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.
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 preference, 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.
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).
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 inter-dependant
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.
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.
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.
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.
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.
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. 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'.
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. 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 gay 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, however the
Coalition established an inquiry to
look at whether the reforms should include people in other forms of
interdependent relationships. 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.
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.
The coalition has used its Senate majority to delay legislation
removing same-sex discrimination from commonwealth laws until the
end of September.
Social Security Act 1991
Centrelink, a federal agency which
handles the disbursement of
social security and welfare,
follows Commonwealth law and does not recognise same-sex
relationships, although they will honour all other cohabiting
opposite-sex/de facto relationships. While this reduces the amount
of government benefits for same-sex couples, this does allow the
non-working partner to claim benefits as a single person, such as
single
parenting payments. 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.
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
gay couples.
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.
Coalition amendments to the bill failed and it was passed in
November 2008.
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.
De facto couples, for
example in the ACT, South
Australia, Tasmania and soon Victoria, have access to many spousal rights and can easily
prove that a relationship exists through a registry or
agreement. However in New South Wales, 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.
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.[[Image:Same sex marriage Australia
map.svg|right|thumb|Status of same-sex unions in Australia.
]]
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. Its also unlawful to discriminate against same-sex
parents in relation to their employment entitlements, hence
enabling same-sex parents to access parental leave.
The first legislation
to officially recognise same-sex couples in the ACT was the Domestic Relationship Act
1994.
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.
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.
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 most areas of territory
law. The Act removed distinctions based on a person's
gender, sexuality or de facto relationship in approximately 50 Acts
and Regulations. As in NSW and the ACT, reform has also included
enabling the lesbian partner of a woman to be recognised as the
parent of their partner’s child across State law. 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."
The
Northern
Territory Anti-Discrimination Act 2007 prohibits
discrimination based on sexuality.
Queensland
South Australia
Tasmania
Despite the federal government passing legislation decriminalising
homosexuality in 1994, it wasn't until
1997
when the law in Tasmania prohibiting homosexual sex was overturned
in the courts, making Tasmania the last state to decriminalise
homosexuality. 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 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.
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).
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.
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. A Senate inquiry in
November 2009 rejected the bill.
Rejected legislation:
Victoria
Western Australia
Western
Australia passed The Equal Opportunity Act 1984
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 Australia have only recently
begun to become more tolerant toward same-sex couples, 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.[[Image:LGBTrights Australia map
2009.svg|right|thumb|LGBT adoption rights in Australia.
]]
|
Same-sex couple joint petition |
LGBT individual adoption |
Same-sex stepparent adoption |
| ACT |
 Yes (since 2004) |
Yes under the Adoption Act 1993 |
Yes (since 2004) |
| New South Wales |
 No (under review since 2006) |
Yes under the Adoption Act 2000 |
No |
| Northern Territory |
No |
Only in exceptional circumstances |
No |
| Queensland |
No |
Yes under the new Adoption Act
2009 |
No |
| South Australia |
No |
No singles, must only be an opposite-sex couple (married or
cohabitating) |
No |
| Tasmania |
No (under review since 2003) |
Only in exceptional circumstances |
Yes (since 2004) |
| Victoria |
No (under review since 2007) |
Only in exceptional circumstances |
No (recommendations under
consideration since 2007) |
| Western Australia |
Yes (since 2002) |
Yes under the Adoption Act 1994 |
Yes (since 2002) |
Same-sex parent adoption
Adoption for same-sex couples is currently
available in Australian Capital Territory and Western Australia. In Tasmania, only stepparent adoption is allowed.
In
New South
Wales, the Adoption Act 2000 (NSW) bans all
same-sex couples (regardless), but allows single LGBT individuals
to adopt. In Queensland, same-sex couples cannot legally adopt a child, but
can become foster parents. 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. 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
1975 Family Law Act 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.
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."
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. In Tasmania, same-sex stepparent adoption (where one partner is
the biological parent of the child) became legal in 2001. 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.
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.
Assisted reproduction
Assisted Reproductive Technology (ART) 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 most states and
territories.
After the Victoria ART Act 2008 becomes effective from 1.1.2010,
South
Australia will be the
only state that limits access to IVF to those who are infertile or
carrying a genetic disorder.
Commercial
surrogacy and related
advertising remains illegal in all states and
territories. Altruistic surrogacy, where the surrogate receives no
financial reward for her pregnancy or the relinquishment of the
child, is legal in the ACT, Victoria (eff. 1.1.2010) and Western
Australia.
Queensland Premier Anna Bligh
announced in August 2009 that new laws allowing
same-sex couples to participate in altruistic surrogacy would be in
place by the end of the year. 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. There is no regulation on any surrogacy 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. 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.
Obtaining legal parental rights for same sex partners of birth
parents has only recently been addressed in limited ways.
Victoria will be the fifth jurisdiction to recognise female
partners of birth mothers as parents of IVF children, effective 1 January
2010. Male couples who arrange altruistic surrogacy (since
commercial surrogay is illegal) using one partner's sperm, which
may be legally possible in the ACT, Western Australia and Victoria
(eff. 1.1.2010), 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.
|
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 |
Legal |
Illegal |
Legal |
Yes (for both male
and female) |
| New South Wales |
No |
Legal |
Illegal |
No laws at this point in time |
Yes (female couples),
No (male couples) |
| Northern Territory |
No |
Legal |
No Laws at this point in time |
No laws at this point in time |
Yes (female couples),
No (male couples) |
| Queensland |
No |
Legal |
Illegal |
Illegal |
No, both male and
female |
| South Australia |
No |
Only allowed for "medically infertile"
women |
Illegal |
Illegal |
No, both male and
female |
| Tasmania |
No |
Legal |
Illegal |
Illegal |
Yes (female
couples) No (male couples) |
| Victoria |
Yes (eff.
1.1.2010) |
Legal (eff.
1.1.2010) |
Illegal |
Legal (eff.
1.1.2010) |
Yes (for both male
and female, eff. 1.1.2010) |
| Western Australia |
Yes |
Legal |
Illegal |
Legal |
Yes (both male and
female) |
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 (heterosexual)parents of a child born through surrogacy to
become its legal parents, allowing them to easily obtain a
parenting order and avoid adoption. 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.
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 makes no mention of same-sex couples, however a report 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 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. 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 in October without dissent.
The
Surrogacy Contracts Act 1993 made surrogacy illegal
and surrogacy contracts void. 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. The committee's final
report was issued in July, recommending a form similar to Western
Australia, where non-commercial contracts are legal but
unenforceable.
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".
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
fertilisationprocedure, 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.
Western
Australia’s Registry of Births, Deaths and Marriages allows
forregistration 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.
- To view the legislation: Surrogacy Act 2008 - Assented 10 December 2008
(effective from 1 March 2009)
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. Four years later in May 2009, the
tribunal dismissed the complaint saying that it was
"unsubstantiated".
Opposition groups
Political Groups
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 Nationals is a
socially conservative party,
Opposes
LGBT adoption,
same-sex marriage,
IVF,
civil
unions, The Nationals Party 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.
The
Family First
Party policies emphasise
socially conservative family values. Family First, a minor political
party, 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".
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." 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."
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..
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.
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.
The
Christian organisation
Exclusive
Brethren ran full page advertisements in various
newspapers to criticise Tasmanian
Greens' pro-Gay policies such as
same-sex marriage (as well as
gay adoption and fostering, something already
partially
recognised by
Tasmanian law) in the lead up to the 2006
Tasmanian State
Election.
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.
In July 2003, more than 80 per cent of the national assembly of the
Uniting Church in Australia voted that practising homosexuals can
be ordained as ministers. Individual presbyteries can decide which
minister they want on a case-by-case basis. Again,evangelical
members of that church are unhappy with the decision, and a major
split in the church appears likely.
The 2009 Legal situation regarding the recognition of
relationships in Australia
See also
Notes
- The Development Of Homosexuality
- ACT Discrimination Act 1991
- EQUAL OPPORTUNITY ACT 1984
- Human Rights and Equal Opportunity
Commission
- http://www.familyfirst.org.au/documents/THEFAMILY_000.pdf
Additional references and sources
History and Activism
Adoption and Parenting
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