LGBT rights in Queensland
|LGBT rights in Queensland|
|Same-sex sexual activity legal?||Legal since 1990|
|Gender identity/expression||Protected under federal and state anti-discrimination law|
|Discrimination protections||Yes (both state and federal law)|
|Civil partnerships between February - June 2012; registered relationships thereafter|
|Same-sex marriage prohibited under federal law since 2004; see Same-sex marriage in Australia|
|Adoption||No (Foster parenting allowed)|
Queensland has a reputation as Australia's most socially conservative state, particularly in the north and west of the state, which has limited the electoral appeal of LGBT-friendly policies. Following the socially conservative Liberal National Party's victory in the 2012 state election, the party enacted several policy changes that led to criticism from gay rights advocates. These included: defunding Queensland Association for Healthy Communities, the state's sole LGBT health organisation, on the grounds that its initial focus on HIV/AIDS prevention had given way to political campaigning; downgrading civil partnerships to a "registered relationships" scheme; and refusing to remove the gay panic defence from the state's criminal law.
- 1 Laws regarding homosexuality
- 2 Recognition of same-sex relationships
- 3 Adoption and parenting rights
- 4 Discrimination protections
- 5 Summary table
- 6 See also
- 7 References
- 8 External links
Laws regarding homosexuality
Although lesbianism was never criminalised in Queensland, males engaging in sexual activity with each other, including private consensual sex, risked imprisonment until the late 1980s. Following the election of a new ALP government led by Wayne Goss, private sex between consenting males was legalised in 1990.
As with other British colonies, Queensland originally derived its criminal law of the United Kingdom. This included the prohibition of buggery and "gross indecency" between males. While other states in Australia began to liberalise their anti-homosexuality laws in the 1970s and 1980s, Queensland was ruled by the socially conservative National Party of Joh Bjelke-Petersen. His government refused to countenance changes to the law, describing gay people as "child molesters" and "perverts". At this time government policy was hostile; the Education Department refused to hire openly gay teaching graduate George Weir and in 1985 the government passed an amendment to the Liquor Act making it an offence for publicans to serve liquor to "perverts, deviants, child molesters and drug users" or allow them to remain on licensed premises. The anti-homosexuality laws were enforced by police throughout the 1980s, including against men who were in same-sex relationships and were not aware that their private conduct was illegal.
The first major public demonstration in favour of decriminalisation occurred on 31 August 1989, when several hundred people demonstrated outside Parliament House in Brisbane. The protests arose after give men from Roma were charged with a variety of anti-homosexuality offences. At the time the maximum penalty for "sodomy" was seven years in jail. At the time, opinion polls published by The Bulletin suggested that while a majority of Queenslanders did not support equal rights for gay people, they thought that private homosexual conduct between consenting adults should be decriminalised.
Legalisation under Goss
The Fitzgerald Inquiry began in the late 1980s following allegations of corruption and misconduct in the Queensland Police, which subsequently investigated the entire system of government. One of its recommendations was that a newly established Criminal Justice Commission review the laws governing voluntary sexual behaviour, including homosexual activity.
This proposal was an issue in the 1989 state election. National Party leader Russell Cooper, whose party was heavily implicated in corruption by the Fitzgerald Inquiry, tried to galvanise socially conservative support using his party's opposition to the legalisation of homosexual conduct. During the election campaign he claimed that his party's corruption was a "secondary issue" to moral issues like abortion and homosexuality, adding that the then-Opposition ALP's policy of decriminalisation would send a "flood of gays crossing the border from the Southern states". These advertisements were satirised by Labor ads depicting Cooper as a wild-eyed reactionary and a clone of Bjelke-Petersen and/or a puppet of Nationals party president Sir Robert Sparkes. Cooper's party was defeated in the election.
Following its victory, the new ALP Government led by Wayne Goss commissioned the recommended review into the legal status homosexuality. That review recommended that homosexual offences be removed from the state's Criminal Code and that the age of consent for private consensual conduct be 16 years for both homosexual and heterosexual conduct.
Goss' government largely implemented the changes in the Criminal Code and Another Act Amendment Act 1990, which was passed by the parliament on 29 November 1990. However, a truly equal age of consent was not implemented. Queensland’s age of consent is 16 for oral and vaginal sex. By contrast, anal intercourse, or "sodomy", involving any person aged under 18, whether male or female, is a criminal offence, punishable with up to 14 years imprisonment. Patterson described this as a "pragmatic political response" to the objections of religious lobby groups, who largely equated homosexuality with sodomy.
Following moves by South Australia, Victoria and New South Wales to expunge the criminal records of men who had been convicted of conduct that was subsequently decriminalised, Attorney General Jarrod Bleijie announced he would have an "open mind" to reviewing the law following discussions with LGBTI Legal Service.
Recognition of same-sex relationships
De facto recognition
In December 2002, with the passing of the Discrimination Law Amendment Act 2002, the definition of "de facto partner" was amended to include same-sex couples. Thus, same-sex partners are now recognised in 61 pieces of legislation, including superannuation entitlements, workers compensation, etc. Amendments were also made to the Property Law Amendment Act to recognize same-sex partners in regard to the distribution of property in the event of a separation. Queensland's Industrial Relations Act 1999 gives same-sex couples access to state-based parental, family, bereavement and carer’s leave provisions. The Equal Opportunity in Public Employment Act 1992 and the Public Service Act 2008 promotes equality of employment in the public sector. Furthermore, if a gay or lesbian couple came to Queensland from another state where they were recognised, Queensland will recognise them as a couple.
While the changes in Commonwealth legislation in 2008 provided complete recognition of same-sex couples at the federal level, Queensland laws are now contradictory, particularly when children are involved. With the federal legislation, the non-biological parent can now be made to pay child maintenance. However in Queensland, that same person who has to pay child maintenance is not even recognised as a parent. Without some sort of legal guardianship, health services may not accept the other parent authorising procedures for the child. If the biological parent dies, his or her partner would not be considered the next of kin.
Same-sex marriages are currently not permitted under Australian federal law. Since 2004, the Commonwealth Marriage Act 1961 has defined marriage as "the union between a man and a woman". In addition, Australian law expressly declares that unions between same-sex couples entered into outside the country are not to be recognised as marriage in Australia.
Civil partnerships under Labor
In June 2008, Queensland Attorney-General Kerry Shine announced that the Queensland Government would begin considering a relationships registry for same-sex couples in the second half of 2008. A Galaxy poll conducted in December 2008 showed 60 percent of people in Queensland supported civil unions with 54 percent supporting gay marriage.
However, no progress was made on the issue until late 2011. On 21 October 2011, Deputy Premier Andrew Fraser announced that he would introduce a private member's bill to legalise civil partnerships, which would allow same-sex relationships to be officially registered in Queensland and would allow the option of an official ceremony. Similarly to the existing recognition of same-sex couples as de facto partners, civil partnerships would provide most of the rights of marriage, excluding adoption rights. Fraser was criticised by the then-Opposition LNP, who claimed his bill was a "political stunt" designed to win Greens preferences in his electorate of Mt Cootha.
The Civil Partnerships Bill 2011 was introduced into Parliament on 25 October 2011 and passed its first reading on a 46-30 vote. On 30 November 2011, it passed its second and third reading on a 47-40 vote. Members of the then-governing Australian Labor Party were granted a conscience vote. Most voted in favour, except for Michael Choi, Geoff Wilson, Margaret Keech and Jo-Ann Miller. LNP members were denied a conscience vote and voted as a bloc against it. They were joined in opposition by most of the cross-bench, except for Peter Wellington. The bill passed and was granted royal assent on 6 December 2011, becoming an Act (number 46) The law commenced operation on 23 February 2012. The legislation aligned Queensland with Tasmania, Victoria, the ACT and NSW, which had already made similar reforms.
Registered relationships under LNP
The 2012 state election was held soon after civil partnerships became available, with differing policy approaches offered by parties. The Australian Labor Party and Queensland Greens supported retaining them without changes. Katter's Australian Party proposed a full repeal of the civil partnership law, and were criticised for a homophobic advertisement attacking Campbell Newman for his personal support for same-sex marriage.
Before the LNP took office, party leader Campbell Newman stated that repealing the laws after couples had already entered into civil partnerships would create an "unacceptable and intolerable situation", and so promised to do nothing. He later stated that the party would repeal the law.
On 12 June 2012, Premier Newman and Attorney-General Jarrod Bleijie announced that the legislation would be amended to remove aspects that "mimcked marriage", such as the option of an official ceremony, to avoid offending conservative religious groups.
On 22 June 2012 the Civil Partnerships and Other Legislation Amendment Bill 2012 was passed by a 69-8 vote, amending the Civil Partnerships Act with effect from 27 June 2012. All LNP members voted as a bloc to amend the law. They were opposed by the six present ALP members, and Peter Wellington. Liz Cunningham also voted against the bill as she wanted a full repeal of the law, while the two Katter's Australian Party members, who shared her position, abstained.
Apart from renaming the legislation to the Relationships Act 2011, other changes included: replacing civil partnerships with "registered relationships"; amending the termination procedure, so that instead of seeking a court order from the District Court, an application would be lodged with the Registrar of Births, Deaths and Marriages, thereby reducing the similarities with obtaining a divorce; and repealing the option of state-sanctioned ceremonies.
Adoption and parenting rights
Adoption and foster parenting
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.
The state's adoption rules were revised in August 2009 with the Adoption Act 2009 which only allows opposite sex couples who are married or in a de facto relationship for two years to adopt. The Act requires that applicants for both adoption and stepparent adoption be married or de facto and "the person’s spouse is not the same gender as the person" making the application. Although discriminatory, the Act specifies that the Anti-Discrimination Act is not to apply. One of the Act's key features is to allow foster parents to more easily adopt the child they are fostering. Phil Reeves, the state's minister for child safety, said, "Foster carers with children in their care for a long time - often from birth - frequently express a desire to adopt these children. It is only natural that a child in this situation often feels a true part of the family they have lived with long-term." Same-sex foster parents are explicitly excluded from adopting their foster children. Independent (previously One Nation) MP Dorothy Pratt said, "I must say I was very pleased there was no allowance in this bill for homosexual couples to adopt a child." Queensland Premier Anna Bligh's approach was described as "confusing" by the Queensland Council for Civil Liberties after she stated that "everyone - regardless of their sexual status or their gender - should be afforded the privileges of parenthood" in the context of surrogacy, but failed to apply this logic to adoption laws.
Access to IVF
Socially-infertile women (lesbians) are permitted access to in vitro fertilisation treatment in Queensland, and an amendment to the Status of Children Act 1978 now means that in some circumstances the female de facto partner of the birth mother is recognised as a parent. These circumstances are when the child has been born through the use of a fertilisation procedure (such as in vitro fertilisation, assisted insemination or self insemination) with the consent of the birth mother’s female de facto partner.
The Surrogate Parenthood Act 1988, which commenced on 6 October 1988, prohibited all forms of surrogacy, formal and informal, paid and altruistic. All surrogacy contracts were deemed void and entering into an agreement (or offering to do so), as well as giving or receiving payment were prohibited. Any advertising in relation to surrogacy was also prohibited. It became a criminal offence for a person ordinarily resident in Queensland to enter into a commercial surrogacy arrangement anywhere in the world.
In May 2008, a parliamentary committee was formed to examine whether to decriminalise altruistic surrogacy in Queensland. Commercial surrogacy was immediately ruled out. A parliamentary report recommended legalising surrogacy only as a last resort, and people must meet several criteria, including being medically infertile or unable to carry a child.
In October 2009, Attorney-General Cameron Dick released for consultation draft laws to decriminalise altruistic surrogacy and put into place certain strict requirements, including satisfying the court they have undergone counselling, received independent legal advice and have established a medical or social need for the surrogacy. The draft Bill would not restrict who can enter into a surrogacy arrangement, meaning that a couple, either married or de facto (same-sex or heterosexual) or a single person (male or female) may be the intended parent or intended parents in a surrogacy arrangement and then subsequently apply for a parentage order. The government will amend the law to recognise two mothers as parents. The Liberal-National opposition party countered the Labor government's moves by introducing a bill that specifically excludes single parents and same-sex couples from any new surrogacy laws. Queensland’s Attorney General called the opposition's response "offensive".
The Labor government's bill, which does not restrict who can enter into a surrogacy arrangement, was tabled in November and passed 45 to 36 on 11 February 2010 with seven not voting. The opposition's surrogacy bill was dismissed, and their amendments did not pass. The decriminalisation of altruistic surrogacy allows singles and couples to enter into surrogacy arrangements and to become the parent of a child. It remains illegal for Queensland residents to enter into commercial surrogacy arrangements anywhere in the world. The law took effect on 1 June 2010.
During the 2012 election campaign, LNP leader Campbell Newman stated that the party would not change the new surrogacy laws if it won government. However, after the party attained government in 2012, Attorney-General Jarrod Bleijie announced in Parliament that the LNP would amend Queensland's surrogacy legislation to exclude same-sex couples, singles and heterosexual de facto couples of less than two years' standing. Bleijie claimed that Newman had not been "fully briefed" on the LNP's policy platform. Newman later stated that his pre-election promise was a "mistake" given earlier misgivings expressed by LNP members, and that he was listening to the majority of members in his party. Subsequently, moderates within the LNP had expressed concern about the proposal to remove surrogacy rights and it was quietly shelved, with Bleijie's announcement described by one colleague as a "brain snap".
A person who is in a same sex, spousal or intimate personal relationship is protected by the Domestic and Family Violence Protection Act 1989. So couples in same-sex relationships who are victims of relationship violence may take out domestic violence orders against a violent partner, and other protective measures, including counselling services.
On 29 November 2002 Queensland Parliament passed the Discrimination Law Amendment Act 2002 which reformed a wide range of areas in the Queensland Ant-Discriminition Act 1991 such as couples (whether same sex or de facto), including transgender persons ("gender identity") and "sexuality" in protection under existing Anti-Discrimination and Anti-Vilification legislation. The areas covered are work and work related; education; goods and services; superannuation and insurance; disposal of land; accommodation; club membership; administration of state laws and programs; local government; existing partnership and in pre-partnership.
Australian federal Commonwealth Government under law does outlaw discrimination based on "marital or relationship status, sexual orientation, gender identity and/or intersex status" at the federal level at various levels that cover aged care, employment, health services, goods and services, accommodation, etc. since August 2013. Federal employment protection does include "sexual orientation" in the federal Fair Work Act 2009. 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. As of August 2013, the Australian federal Commonwealth Government under law does provide protections for "marital or relationship status, sexual orientation, gender identityand/or intersex status" at the federal level at various levels that cover aged care, employment, health services, goods and services, accommodation, etc. in the Human Rights Commission Act 1981 (Commonwealth legislation).
Federal law also protects LGBT and Intersex people in Queensland in the form of the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013.
Homosexual Advance Defence
In Queensland, a person charged with the murder of a gay person can claim that he or she was provoked by a non-violent homosexual advance from the victim; this can act as a partial defence to murder and reduces the crime to manslaughter.  As at 2014, the only other Australian state still allow this defence, to be used in common law like Queensland is South Australia. A 2008 report by the Queensland Law Reform Commission on the topic of provocation stated "it is difficult to imagine how a non-violent sexual advance to a man by a woman could be regarded as justification for killing the person making the advance... in principle, gender should make no difference to the law’s conclusion".
The use of this defence by two men who killed another man in 2008 in the grounds of St Mary's Catholic Church in Maryborough led the local priest, Father Paul Kelly, to launch a Change.org petition to remove its application from Queensland law. The petition was supported by British comedian Stephen Fry. Although the ALP Government flagged its intention to remove the defence, following the election of an LNP government in 2012, new Attorney-General Jarrod Bleijie stated that no changes would be made.
|Same-sex sexual activity legal||(since 1990 for males; always for females)|
|Equal age of consent||(16 years for oral and vaginal intercourse; 18 years for anal intercourse)|
|Anti-discrimination state laws for sexual orientation|
|Anti-discrimination state laws for gender identity or expression|
|Hate crime laws include sexual orientation|
|Hate crime laws include gender identity or expression|
|Recognition in state law of same-sex couples as domestic partners|
|Step adoption by same-sex couples|
|Joint adoption by same-sex couples|
|Access to IVF for lesbians|
|Same-sex marriages||(federal jurisdiction)|
|MSMs allowed to donate blood||(Australia-wide)|
- LGBT rights in Australia
- Recognition of same-sex unions in Australia
- Parents and Friends of Lesbians and Gays (PFLAG), Brisbane
- Queensland LGBTI Legal Service
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