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LGBTQ rights in Australia

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LGBT rights in Australia have evolved through the history of Australia, with many changes occurring in recent past decades. Currently, same-sex equality is recognized under certain statutes while other laws apply differently for LGBT individuals (or people involved in same-sex relationships) than they do for heterosexuals (or those involved in heterosexual relationships). The recognition and rights of same-sex couples in Australia have gradually been increasing within the states and territories, while the federal or Commonwealth government has been continually stopping to amend nearly 60 pieces of legislation that only recognizes opposite sex couples explicitly.

Laws regarding sexual activity apply equally to same-sex and heterosexual activity in all Australian states and territories. As of December 1, 2007, every state and territory, as well as many local governments or councils, will formally recognise both opposite-sex and same-sex relationships in some manner. However, as of 2007, same-sex marriage is officially prohibited at the federal (Commonwealth) government level. Same-gender couples do not receive the same level of recognition as opposite-sex couples in 58 federal law statutes which utilise the phrase 'member of the opposite sex' [1][2] LGTB people are allowed to legally adopt children in some states and territories.

History of activist groups

LGBT activist groups have been organized in Australia since 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.[citation needed] It was followed by other organizations such as:

  • Society Five, a gay rights organisation formed in Melbourne in 1971.[3]
  • The Gay Teachers Group, a gay rights organisation started in the late 1970s.[citation needed]
  • The Homosexual Law Reform Coalition, a gay rights group started in the late 1970s.[citation needed]
  • The Coalition Against Moral Persecution, AKA C.A.M.P.

Legality of Sexual Activity

Lesbianism was never illegal in colonial England and its colonies.

In 1975, South Australia became the first state or territory to legalize sexual conduct between males. In 1997, when the law in Tasmania prohibiting homosexual sex was overturned in the courts because of the passage of the Human Rights (Sexual Conduct) Act 1994 - Section 4, [4], sexual activity between consenting adults (in private) became legal in all Australian states and territories.

All Australian 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].

See also Ages of consent in Australia and Oceania

Anti-Discrimination, Equal Opportunity and Vilification Laws

In 1977, the "Anti-Discrimination Act 1977" [2] which prohibits discrimination in places of work, the public education system, delivery of goods and services, and other services such as banking, health care, property and night clubs was passed in New South Wales.[5]

Victoria[6] called the "Equal Opportunity Act 1995" [3] and Queensland[7] prohibit discrimination based on sexual orientation and gender identity in the "Anti-Discrimination Act 1991" [4].

The Tasmanian "Anti-Discrimination Act 1998" [5] 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.[8]

The Northern Territory "Anti-Discrimination Act 2007" [6] [7] prohibits discrimination based on sexuality.[9]

The "ACT Discrimination Act 1991" [8] 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.[10]

Western Australia's is called "The Equal Opportunity Act 1984" [9] and South Australia is also called the "EQUAL OPPORTUNITY ACT 1984" [10] which does include "sexual orientation/sexuality/gender idenity" - Which means it is illegal to discriminate in clubs, pubs, other establishments, restaurants, housing, memberships to establishments, goods and services, education and training, etc.

As of September, 2007 - The Commonwealth Government does not provide "sexual Orientaion and gender idenity" as yet in the "HUMAN RIGHTS COMMISSION ACT 1981" (Commonwealth legislation) [11]. However there is this, instead; HUMAN RIGHTS (SEXUAL CONDUCT) ACT 1994

More information on anti-discrimination legislation (state, territory and commonwealth law) [12].

These non-discrimination laws generally allow exemptions for religious organizations.


Domestic Partnership/Civil Unions/Same-sex Marriage

Main article: Recognition of gay unions in Australia

Prohibition at Commonwealth Level

The laws of the federal (Commonwealth) level do not allow same-sex couple to legally marry; and since 2004, same-sex marriage has been 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 December 2005, John Howard ruled out same-sex civil unions/civil partnerships under his government stating that "marriage is for men and women", and "That's why we amended the Marriage Act [in August 2004]." He went on to explain that Australia's culture is rooted in Judeo-Christian tradition. "I believe very strongly that marriage is exclusively a union for life of a man and a woman to the exclusion of others. That's the common understanding of marriage in the Judeo-Christian tradition, and I would be opposed to the recognition of civil unions." [11]

International Implications

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[12]. Following a request for the certificate the following statement was received:

Following the advice of the Australian Attorney-General's Department we herewith certify that Australian law does not allow the issue of a Certificate of No Impediment to Marriage to persons wishing to enter into a same-sex marriage.

— Australian Embassy, Netherlands on behalf of the Attourney-General's Office[12]


Recognition at the State and Territory Level

All states and territories of Australia provide some form of legal recognition of domestic partnerships or registered partnerships.

Civil Union laws passed in the Australian Capital Territory on 11 May 2006.[13] Federal Attorney General Philip Ruddock announced that the Federal Government would advise the Governor-General to disallow the laws.[14]. The Australian Capital Territory allowed civil partnership law to go ahead,[15][16] and in February 2007, Attorney General Phillip Ruddock announced that he did not approve of gay civil partnership and blocked laws in the ACT because he believes gays should not hold ceremonies on their partnership as it equates gay unions with heterosexual marriage. He stated that marriage was a "cultural institution" intended only to produce and raise children.[17]

Prime minister John Howard has publicly stated that he intends to veto the proposed ACT same sex civil marriage laws because he believes in "support[ing] the special and traditional place of marriage as a heterosexual union for life of a man and a woman in Australian society." In response, the ACT's Chief Minister Jon Stanhope accused John Howard of having no place for homosexuals. Howard has however denied this.[18]

In 2003, South Australia passed the statutes amendment (equal superannuation entitlements for same-sex couples) Act 2003 (number 13)". The "statutes amendment (domestic partners) act 2006 (number 43)", dispensed with the term "de facto" and categorized couples as "domestic partners". This means same-sex couples and any two people who live together are now covered by the same laws. Until the bill’s passage South Australia was the only state or territory to not recognize same-sex couples in legislation. [19][20][21][22][23][24][25][26]

Tasmania's Relationship Act 2003 provides for recognition and registration of a type of domestic 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).

Independent MP Andrew Olexander has attempted to introduce a private members bill into Victorian Parliament, in an effort to allow same-sex civil unions.[27] However, Victorian Premier Steve Bracks has stated his intent to refuse to allow parliamentary counsel to draft the bill, saying he would block any move to have civil-unions or gay marriage debated in parliament.[28] Victoria will have a "Relationship Declaration Register" starting in December 2007 for all relationships and carers. This will replace individual city registers such as Melbourne's which began earlier in 2007.[29] [30]

External Official Registry Links

Sources:

Recognition at the City Level

The cities of Sydney and Melbourne provide a Relationships Declaration Program available for all couples. [31][32] [33] [34][35][36][37][38]

External Official Registry Links

Adoption and Laws Relating to Having Children

Adoption for same-sex couples is legal in Australian Capital Territory (since 2004), Western Australia (since 2002), Tasmania (step child only since 2005) and Victoria (as of 1 December 2007) and same-sex adoption is prohibited in New South Wales, South Australia, Queensland and the Northern Territory. [39] In Queesnsland, same sex couples cannot legally adopt or foster a child.[40]


Australia's first legal gay adoption occurred in Western Australia in June 2007, after Western Australia Labor government passed legislation in 2002 allowing same-sex couples to adopt. [41][42][43] [44]

In states and territories where same-sex step-parent 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. 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. [45]

In May 2007, the Victorian Law Reform Commission in Victoria released its final report recommending that the laws be modified to allow more people to use assisted reproductive technologies and to allow same-sex couples to adopt and be recognized as parents to their partner's children. [46]

In August 2007, Prime Minister John Howard announced plans to introduce a bill into parliament that would ban the recognition of overseas adoptions by same-sex couples under a new 'provision' or 'Amendment' of the Commonwealth Family Law Act, the Family Law (Same Sex Adoption) Bill. [47][48] [49][50][51]

In Vitro Fertilization technologies, artificial insemination, surrogacy, and other reproductive technologies are legal in WA, ACT, TAS and VIC (from December 2007) illegal in NSW, NT, QLD and SA and the Commonwealth. Many laws regarding the use of Assisted Reproductive Technology (ART) require the woman or her partner to be infertile, and since nearly all same-sex couples who seek to use ARTs are not infertile, they are not allowed to utilize it.

Adoption status in the States and Territories

Full adoption or step child adoption available for all couples;

Illegal to allow only same-gender couples to legally adopt children, hovever still considering and/or debating with legislators;

Inheritance

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. With the increased legal recognition of domestic partnerships, this situation is changing. For example, superannuation (tax-incentivised retirement funds) legislation recognised "interdependent relationships", which included same-sex relationships.[citation needed]

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 recognizes "interdependent relationships", which include same-sex relationships, regarding benefits available to active duty members.[52] This means equal benefits in housing, moving stipends, education assistance and leave entitlements. The ADF will acknowledge personnel’s same-sex partnerships as "interdependent relationships." These benefits apply only to ADF members who are involved in interdependent relationships with a same-sex partner. To be recognised as interdependent, same-sex partners will have to show they have a "close personal relationship" that involves domestic and financial support.

Other Areas of LGBT Rights

See also: Australian Red Cross Blood Service § Infectious diseases
  • Centrelink, being a federal agency, does not recognize same-sex relationships, though they will honor all other cohabitating 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.

Religious Opposition

  • Leaders of the Australian Anglican Church have called for the removal of the proposed legislation, because "[They] believe this proposal actually threatens and compromises the traditional Christian view of marriage between a man and a woman." and that "We further believe the proposal to apply lesser age requirements for such civil unions is thoroughly unhelpful to young people in their developing years, and is therefore not in their best interests or the ultimate good of society as a whole."[54]
  • Prime Minister John Howard has admitted to meeting with fundamentalist group The Exclusive Brethren, stating he had "met a lot more fanatical people in his life than [that group]." Howard explained the Brethren were "entitled to put their views to the Government", and went on to say that he had no problem with the fundamentalist sect.[57]

Notes

  1. ^ "Entsch to hand PM gay rights petition, Wednesday August 8 17:21 AEST". National Nine News. Retrieved 2008-09-03.
  2. ^ "PM to review same-sex couples' rights, by Patricia Karvelas, [[March 02]], [[2007]] 01:00am". The Daily Telegraph. Retrieved 2007-09-03. {{cite web}}: URL–wikilink conflict (help)
  3. ^ Kaplan, Gisela (1996). The Meagre Harvest: The Australian Women's Movement 1950s-1990s. St Leonards. pp. pg. 93. {{cite book}}: |pages= has extra text (help); Cite has empty unknown parameter: |coauthors= (help)
  4. ^ "Human Rights (Sexual Conduct) Act 1994 - Sect 4". Commonwealth Consolidated Acts. Retrieved 2007-09-03.
  5. ^ "Homosexual Discrimination" (PDF). Anti-Discrimination Board of New South Wales. Retrieved 2007-09-03.
  6. ^ "Sexual orientation and lawful sexual activity". Victorian Equal Opportunity and Human Rights Commission. Retrieved 2007-09-03.
  7. ^ "Sexuality Discriminiation and Vilification". Anti-Discrimination Commission Queensland. Retrieved 2007-09-03.
  8. ^ "Employer's Responsibilities". Office of the Anti-Discrimination Commission, Tasmania. Retrieved 2007-09-03.
  9. ^ "Anti-Discrimination Act". Department of Justice. Retrieved 2007-09-03.
  10. ^ "Annual Report 2005-2006" (PDF). ACT Hunam Rights Office. Retrieved 2007-09-03.
  11. ^ "No gay marriages: Howard". The Australian. Retrieved 0. {{cite web}}: Check date values in: |accessdate= (help)
  12. ^ a b "Govt defends block to same sex marriage ([[January 18]], [[2006]] - 9:29 a.m.)". The Age. Retrieved 2007-09-03. {{cite web}}: URL–wikilink conflict (help)
  13. ^ "Ruddock to study gay union law details ([[May 12]], [[2006]] - 10:39am)". The Age. Retrieved 2007-09-03. {{cite web}}: URL–wikilink conflict (help)
  14. ^ "COMMONWEALTH TO DEFEND MARRIAGE AGAINST TERRITORY LAWS ([[6 June]] [[2006]] 102/2006)". The Attorney-General Phillip Ruddock MP. Retrieved 2007-09-03. {{cite web}}: URL–wikilink conflict (help)
  15. ^ "ACT revising same sex relationships law (Friday, [[October 20]], [[2006]]. 2:19pm (AEST))". ABC News Online. Retrieved 2007-09-03. {{cite web}}: URL–wikilink conflict (help)
  16. ^ "Media Release: [[23 October]] [[2006]] Civil Partnerships Still Mimic Marriage" (PDF). Australian Christian Lobby. Retrieved 2007-09-03. {{cite web}}: URL–wikilink conflict (help)
  17. ^ "Ceremony not for gays, says Ruddock by Kenneth Nguyen ([[February 8]], [[2007]])". The Age. Retrieved 2007-09-03. {{cite web}}: URL–wikilink conflict (help)
  18. ^ "Same-sex veto not 'anti-gay'". News.com.au. Retrieved 2007-09-03.
  19. ^ http://www.gaywired.com/article.cfm?section=66&id=11930
  20. ^ "Statutes Amendment (Domestic Partners) ACT 2006 (NO 43 OF 2006)". South Australian Numbered Acts. Retrieved 2007-09-03.
  21. ^ "Statutes Amendment (Domestic Partners) Act 2006". Government of South Australian Attorney-General's Department. Retrieved 2007-09-03.
  22. ^ "Statutes Amendment (Equal Superannuation Entitlements for Same Sex Couples) ACT 2003 (NO 13 OF 2003)". South Australian Numbered Acts. Retrieved 2007-09-03.
  23. ^ "Southern Australia Approves Domestic Partners Legislation; Gay Rights Advocates Celebrate". gaywired.com. Retrieved 2007-09-03.
  24. ^ "Votes on Homosexual Issues". South Australia, Australia, House of Assembly. Retrieved 2007-09-03.
  25. ^ "SA Upper House passes bill for same-sex rights (Thursday, [[December 7]], [[2006]]. 6:49pm (AEDT))". ABC News Online. Retrieved 2007-09-03. {{cite web}}: URL–wikilink conflict (help)
  26. ^ "South Australia gays get new rights by Tony Grew ([[7 December]] [[2006]])". pinknews.com.au. Retrieved 2007-09-03. {{cite web}}: URL–wikilink conflict (help)
  27. ^ "Bill plan to allow gay civil unions By Jason Dowling ([[March 12]], [[2006]])". The Age. Retrieved 2007-09-03. {{cite web}}: URL–wikilink conflict (help)
  28. ^ "Bracks stymies gay unions bill". The Age. Retrieved 2007-09-03.
  29. ^ http://www.news.com.au/story/0,23599,21611975-29277,00.html?from=public_rss
  30. ^ http://www.melbourne.vic.gov.au/info.cfm?top=228&pg=715&st=773
  31. ^ "Relationships Declaration Program". City of Sydney. Retrieved 2007-09-03.
  32. ^ "Legal Recognition for Gay Couples". Victorian Gay and Lesbian Rights Lobby and Law Institute of Victoria 2002. Retrieved 2007-09-03.
  33. ^ "Same Sex Relationships". Victorian Equal Opportunity and Human Rights Commission. Retrieved 2007-09-03.
  34. ^ "Australian City To Launch Gay Partner Registry". Gay News from 365Gay.com. Retrieved 2007-09-03.
  35. ^ "Hooray for Melbourne and gay sex!". ISFAT.com. Retrieved 2007-09-03.
  36. ^ "Melbourne City Council - 'Relationships Declaration Register'". Salt Shakers. Retrieved 2007-09-03.
  37. ^ "Victoria's first Relationship Declaration Register launched, Monday, 2 April 2007". City of Melbourne. Retrieved 2007-09-03.
  38. ^ "VicSame-sex register for Victoria [[April 24]], [[2007]]". News.com.au. Retrieved 2007-09-03. {{cite web}}: URL–wikilink conflict (help)
  39. ^ http://www.theage.com.au/articles/2004/04/26/1082831496210.html
  40. ^ http://www.legalaid.qld.gov.au/Legal+Information/Relationships+and+children/Relationships/Same+sex+couples.htm
  41. ^ http://www.news.com.au/perthnow/story/0,21598,21898760-2761,00.html
  42. ^ http://www.samesame.com.au/news/local/905/First_Legal_Gay_Adoption_In_Australia
  43. ^ http://www.efluxmedia.com/news_Australia8217s_First_Legal_Adoption_For_Gay_Couple_06505.html
  44. ^ http://www.proudparenting.com/node/390
  45. ^ http://www.humanrights.gov.au/human_rights/samesex/report/Ch_5.html
  46. ^ http://www.lawreform.vic.gov.au/CA256A25002C7735/All/E98CC6AE987CD2FBCA2572F40009BEDB?OpenDocument&1=30-Current+projects~&2=70-Assisted+Reproduction+and+Adoption~&3=70-Final+Report~
  47. ^ http://www.theage.com.au/news/National/Gay-couples-face-overseas-adoption-ban/2007/08/02/1185648030026.html
  48. ^ http://www.theaustralian.news.com.au/story/0,25197,22176569-601,00.html
  49. ^ http://www.smh.com.au/news/National/Same-sex-couples-face-adoption-ban/2007/08/02/1185648030026.html
  50. ^ http://www.gay.com/news/article.html?2007/08/02/2
  51. ^ http://www.pinknews.co.uk/news/articles/2005-3623.html Australian government propose new homophobic law
  52. ^ "Extension of ADF conditions of service to ADF members in recognised interdependent relationships (bulletin, 2005-10-21)". Navy People Online. Retrieved 2007-09-03.
  53. ^ "Gays test Red Cross blood ban, by Erin O'Dwyer ([[October 9]], [[2005]])". The Sun Herald. Retrieved 2007-09-03. {{cite web}}: URL–wikilink conflict (help)
  54. ^ "Church call to scrap gay union ([[April 03]], [[2006]] 01:48pm)". News.com.au. Retrieved 2007-09-03. {{cite web}}: URL–wikilink conflict (help)
  55. ^ "Church group challenged over 'negative' ads". News.com.au. Retrieved 2007-09-03.
  56. ^ "Liberals deny Brethren links". News.com.au. Retrieved 2007-09-03.
  57. ^ "Howard admits meeting Exclusive Brethren ([[September 27]], [[2006]] 01:00am)". News.com.au. Retrieved 2007-09-03. {{cite web}}: URL–wikilink conflict (help)

Additional References and Sources

See also

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