LGBT rights in South Australia
|LGBT rights in South Australia|
|Same-sex sexual activity legal?||Legal since 1975|
|Domestic Partnership Agreement since 2007|
Lesbian, gay, bisexual and transgender (LGBT) people in the Australian state of South Australia have some of the same rights as heterosexual people. Same-sex couples can enter into Domestic Partnerships but they lack legal equality with respect to adoption, surrogacy and assisted reproductive technology. Both South Australia and Queensland still have not abolished the gay panic defence within common law. South Australia was the first Australian state to decriminalise gay sex in 1972.
Laws regarding homosexuality
In 1972, the Dunstan Labor government introduced a consenting adults in private defence in South Australia. This defence was later introduced as a bill by Murray Hill, father of former Defence Minister Robert Hill.
South Australia became the first state or territory to decriminalise sexual conduct between males and provide and equal age of consent for homosexual and heterosexual sex (which is 17 years of age), with the Criminal Law (Sexual Offences) Amendment Act 1975 achieving exactly these reforms.
Recognition of same-sex relationships
South Australia became the first state to consider allowing civil unions for same-sex couples when MP Mark Brindal proposed the Civil Unions Bill 2004 in October 2004. Brindal said, "Same sex attracted people make invaluable contributions to society, and society can no longer afford the hypocrisy to deny them the right to formalise their relationships."
Following the failure of the 2004 Civil Unions Bill, the Statutes Amendment (Relationships No 2) Bill 2005 was written to amend 82 South Australian laws, so that same-sex and heterosexual couples would be treated identically. This also failed to pass the House.
The Statutes Amendment (Domestic Partners) Act 2006 (Number 43), which took effect 1 June 2007, amended 97 Acts, dispensing with the term "de facto" and categorising couples as "domestic partners". This meant same-sex couples and any two people who live together are now covered by the same laws. Same-sex couples may make a written agreement called a Domestic Partnership Agreement about their living arrangements. This may be prepared at any time and is legal from the time it is made, but must meet other requirements, such as joint commitments, before being recognised as domestic partners. Until the bill’s passage South Australia was the only state or territory to not recognise same-sex couples in legislation.
- South Australia Domestic Partners Legislation Official Fact Sheets and Agreement Forms
In 2009 the Commonwealth Powers (De Facto Relationships) Act 2009  to allow the referrals of a de facto partners property and superannuation to the Commonwealth as family law under the Family Law Act 1975  just as all other states have done previously (Assented 10 December 2009; Commenced 1 July 2010)
In 2010 the Family Relationships (Parentage) Amendment Bill 2010 is a proposed law that will recognise co-mothers in same sex relationships and their children was introduced by Greens member Tammy Jennings just after the recent South Australian state election, 2010 to the Legislative Council (upper house) and passed by a conscience vote of 14-5 on 14 November 2010, and passed in the Legislative Assembly (lower house) also by conscience vote by 24-15 on 10 June 2011  . The bill got assented (No 22 of 2011) and became law on 23 June 2011 and commenced on 15 December 2011.
In 2011 the Statutes Amendment (De Facto Relationships) Bill 2011 that will recognise same sex couples in asset forfeiture, property and stamp duty applications passed the Legislative Assembly (lower house) by a unanimous vote on 14 March 2011 and also passed the Legislative Council (upper house) on 12 July 2011 by another unanimous vote. The bill got assented (No 27 of 2011) and became law on 21 July 2011 and became effective on assent, part 4 was made retrospective on 1 July 2010.
On May 4, 2012 at 11pm the Assisted Reproductive Treatment (Equality of Access) Amendment Bill 2012 passed the Legislative Council (upper House) on a vote of 12-9. The bill now makes its way to the Legislative Assembly or (lower House).
Adoption and parenting rights
South Australia is the only jurisdiction in Australia to ban fertile single women and lesbians from accessing IVF treatment. South Australia requires single women and lesbians to be "medically infertile" in order to receive IVF treatment under a 1996 Supreme Court of South Australia ruling. South Australia is one of only two jurisdictions in Australia (the other being Western Australia) to ban altruistic surrogacy for singles and same-sex couples under the Statutes Amendment (Surrogacy) Act 2009. South Australia is one of the four states/territories in Australia that ban the adoption of children by same-sex couples (the others being Queensland, Victoria and the Northern Territory).
The Adoption Act 1988  allows only heterosexual couples (both married and de facto) to adopt children (similar to Queensland, Victoria and Northern Territory). Single individuals are also banned from adoption in South Australia, making it the only place in Australia that does this. Currently only Tasmania, Australian Capital Territory, New South Wales and Western Australia allow same sex couples to adopt children.
The Family Relationships Act 1975  made all surrogacy arrangements illegal. The Statutes Amendment (Surrogacy) Act 2009 revised the Family Relationships Act by legalising altruistic surrogacy (but not commercial surrogacy) only for heterosexual couples (both married and de facto). It also presumes that the woman who gives birth to a child is the legal mother of the child, regardless of genetics. It was passed by the Parliament of South Australia on 17 November 2009. An amendment introduced by Labor MP Ian Hunter which would have allowed anyone in a same sex relationship access to gestational surrogacy was rejected when the law was drafted in 2008.
The Reproductive Technology (Clinical Practices) Act 1988  states that artificial fertilisation procedures are exclusively for the benefit of heterosexual couples (both de facto and married) who appear to be infertile. In 1996 the Supreme Court of South Australia found that the restriction of access to treatment on the basis of marital status contravened the Sex Discrimination Act 1984 (Cwth). Infertile lesbian women who are single or in a relationship currently have access to IVF treatment, similar to Western Australia. On May 4, 2012 at 11pm the Assisted Reproductive Treatment (Equality of Access) Amendment Bill 2012 passed the Legislative Council (upper House) on a vote of 12–9. The bill has since failed in the states' lower house.
South Australia's Equal Opportunity Act 1984 bans unfair treatment of citizens due to sexuality, amongst a host of other aspects of public life. South Australia introduced new laws in 2009 to remove or reduce, former exceptions to the law with respect to sexuality discrimination. The Act also protects transgender and intersex South Australians, classifying such protections under a 'Chosen Gender' section.
Since 1988, the Equal Opportunity Act also expressly says that it is not discrimination in refusing to providing ART or IVF services for certain women under section 5 which quotes -
(a) A reference in this Act or in the repealed Sex Discrimination Act 1975 to the provision of a service does not include, and will be taken never to have included, the carrying out of either of the following fertilisation procedures: (a) artificial insemination; or (b) the procedure of fertilising an ovum outside the body and transferring the fertilised ovum into the uterus.
Federal law also protects LGBT and Intersex people in South Australia in the form of the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013.
Gay panic defence
South Australia and Queensland are the only states in Australia to maintain the gay panic defence within common law. A bill has been introduced by the Greens to abolish the "gay panic defence". The South Australian Government is yet to respond.
- Gay law reform in Australian States and Territories: South Australia
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- Australia (2010-02-04). "Commonwealth Powers (De Facto Relationships) Act 2009". Legislation.sa.gov.au. Retrieved 2014-04-05.
- "FAMILY LAW ACT 1975". Austlii.edu.au. Retrieved 2014-04-05.
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- Family Relationships (Parentage) Amendment Act 2011. Retrieved 2014-04-05.
- Statutes Amendment (De Facto Relationships) Act 2011. Retrieved 2014-04-05.
- Assisted Reproductive Treatment (Equality of Access) Amendment Bill 2012. Retrieved 2014-04-05.
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- "STELLA YFANTIDIS v. DR WARREN JONES and FLINDERS MEDICAL CENTRE No. SCGRG 92/2641 Judgment No. 4337 Number of pages - 16 Discrimination (1994) EOC 92-555 (1993) 61 SASR 458  SASC 4337 (15 December 1993)". Austlii.edu.au. Retrieved 2014-04-05.
- Statutes Amendment (Surrogacy) Act 2009. Retrieved 2014-04-05.
- Adoption Act 1988. Retrieved 2014-04-05.
- Family Relationships Act 1975. Retrieved 2014-04-05.
- Australia. "Statutes Amendment (Surrogacy) Act 2009". Legislation.sa.gov.au. Retrieved 2014-04-05.
- "SA legalises surrogate birth". Abc.net.au. 2009-11-20. Retrieved 2014-04-05.
- Vaughan, Joanna (19 June 2008). "Gay couples lose surrogacy access". Adelaide Now. Retrieved 2008-06-19.
- Reproductive Technology Clinical Practices Act 1988.
- Equal Opportunity Act 1984. Retrieved 2014-04-05.
- Types of discrimination: SA Equal Opportunity Commission
- Equal Opportunity Act 1984 details: SA Equal Opportunity Commission
- SA Equal Opportunity Commission: Chosen Gender
- Australian Human Rights Commission