LGBT rights in South Australia

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LGBT rights in South Australia
South Australia (Australia)
Same-sex sexual activity legal? Legal since 1975
Discrimination protections Yes (both state and federal law)
Family rights
Recognition of
relationships
Domestic Partnership Agreement since 2007
Adoption No

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 (akin to civil unions) though they lack legal equity with respect to adoption, surrogacy and assisted reproductive technology rights. South Australia is one of only two states in Australia (the other being Queensland) not to have abolished the gay panic defence within common law,[1] despite it being the first Australian state to decriminalise homosexual sex in 1972.

Laws regarding homosexuality[edit]

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 an 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.[2]

Historical conviction expungement[edit]

South Australia was the first jurisdiction within Australia to develop a scheme which provides for historical private consensual gay male sexual activity criminal convictions to be expunged under the Spent Convictions (Decriminalised Offences) Amendment Act 2013, which allows those with these historical convictions to apply to have them not appear on their record after a number of crime-free years. Victoria, the Australian Capital Territory and New South Wales are the other jurisdictions within Australia that also have similar expungement legislation. The New South Wales expungement law became effective in 2014 and Victorian and ACT expungement laws became effective in 2015.

Recognition of same-sex relationships[edit]

Creation of Domestic Partnerships[edit]

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 the couples 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.[3][4][5][6][7][8][9]

Under state law, equal superannuation entitlements for same-sex couples were provided for with the Statutes Amendment (Equal Superannuation Entitlements for Same Sex Couples) Act 2003 (number 13).[10] Such rights were eventually federalised in 2009.[11][12]

Further legislation in 2011 - the Statutes Amendment (De Facto Relationships) Act 2011 - recognised same sex couples in asset forfeiture, property and stamp duty applications.[13]

Attempts at legalising civil unions[edit]

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."[14][15]

In October 2012, independent MP Bob Such introduced a bill to the SA Legislative Assembly called the Civil Partnership Bill 2012.[16][17][18][19][verification needed][20][21] It failed to pass either house.

Adoption and parenting rights[edit]

Same-sex adoption[edit]

South Australia is one of three jurisdictions within Australia that ban the adoption of children by same-sex couples (the others being Queensland and the Northern Territory). The Adoption Act 1988 [22] allows only heterosexual couples (both married and de facto) to adopt children (similar to Queensland 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, Victoria and Western Australia allow same sex couples to adopt children.

In July 2014, the Government of South Australia announced the formation of a committee to review its adoption laws, which will include looking at whether same-sex couples and singles will be able to adopt. Submissions to the inquiry closed on 30 May 2015, though the formal recommendations of the review were not released at any stage that year.[23] Eventually, in mid-2016, the review and its recommendations were publicly released. Chief among the report's recommendations are the legalisation of adoption of children by same-sex couples and a move to allow for the amending of birth certificates to include information about the biological and adoptive parents of a child.[24][25] In August 2016, the Minister for Education and Child Development, Susan Close, said in a statement she would "soon" (possibly September 2016) present a bill to parliament amending the Adoption Act 1988, which would include a clause removing the ban on same-sex adoption. The clause is expected to be a conscience vote matter for government members.[26]

Assisted reproductive technology[edit]

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.[27][28]

The Reproductive Technology (Clinical Practices) Act 1988 [29] 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 4 May 2012 at 11pm the Assisted Reproductive Treatment (Equality of Access) Amendment Bill 2012[30] passed the Legislative Council (upper House) on a vote of 12–9. The bill subsequently failed in the lower house, meaning that fertile female same-sex couples remain ineligible for assisted reproductive technology treatments in South Australia.

Surrogacy[edit]

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.[31]

The Family Relationships Act 1975 [32] made all surrogacy arrangements illegal. The Statutes Amendment (Surrogacy) Act 2009[33] 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.[34] 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.[35]

Recognition of lesbian parents[edit]

In 2010 the Family Relationships (Parentage) Amendment Act 2010[36] was a proposed law providing partial recognition of lesbian co-mothers in same sex relationships and their children. It was introduced by Greens member Tammy Jennings following the 2010 state election in the Legislative Council (upper house) and passed via a conscience vote of 14-5 on 14 November 2010. It subsequently passed in the Legislative Assembly (lower house), also via a conscience vote, by 24-15 on 10 June 2011.[37] The bill was subsequently given Royal Assent and became law on 23 June 2011, commencing on 15 December 2011.[38][39][40]

In June 2015, the Family Relationships (Parentage Presumptions) Amendment Bill 2015[41] which abolished the 3-year relationship requirement for parentage recognition, passed the upper house.[42] The bill passed the lower house in February 2016 by a margin of 29-12, with both the Government and Opposition having a conscience vote.[43] The bill has to go back to the upper house for another vote, since the bill was amended. This is called the parliamentary ping-pong stage. The Bill passed all stages in both houses, got Royal Assent and will become effective 3 months later (i.e. from 23 September 2016).[44]

Discrimination protections[edit]

History[edit]

South Australia's Equal Opportunity Act 1984[45] bans unfair treatment of citizens due to sexuality, amongst a host of other aspects of public life.[46] South Australia introduced new laws in 2009 to remove or reduce, former exceptions to the law with respect to sexuality discrimination.[47] The Act also protects transgender and intersex South Australians, classifying such protections under a 'Chosen Gender' section.[48]

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.[49]

Gay panic defence[edit]

South Australia and Queensland are the only states in Australia to maintain the gay panic defence within common law. Repeated attempts to abolish the law have proved to be unsuccessful.[50][51] A renewed effort to remove the gay panic offence in state law began in June 2016, though at this stage legislative reform has not come about.[52]

2015-16 reforms[edit]

In September 2015 a report released by the South Australian Law Reform Institute identified over 140 South Australian Acts and Regulations which discriminate (or potentially discriminate) on the grounds of sexual orientation, sex, gender identity and intersex status, and issued a number of sweeping recommendations to amend such laws.[53] The institute followed up with a final summary report, issued in June 2016, which was specific in its focus on anti-discrimination laws in the state and the scope of religious exemptions to such laws.[54]

In response to the September 2015 report, the Parliament of South Australia introduced an omnibus LGBTI rights bill; the Statutes Amendment (Gender Identity and Equity) Bill 2016. The bill amended language used throughout South Australian law, removing gender bias and ensuring that gender identities, including transgender and intersex, are captured in state legislation. The Bill also removed language in legislation that could have discriminated against people based on their relationship status.[55] Following the publication of the final June 2016 report, the parliament passed the bill on 1 August. The bill was granted royal assent on 4 August 2016, becoming the Statutes Amendment (Gender Identity and Equity) Act 2016, and will go into effect on an as yet unspecified date.

Summary table[edit]

Same-sex sexual activity legal Yes (since 1975 for males; always for females)
Equal age of consent Yes
Anti-discrimination state laws for sexual orientation Yes
Anti-discrimination state laws for gender identity or expression Yes
Hate crime laws include sexual orientation No
Hate crime laws include gender identity or expression No
Gay sex criminal records expunged Yes
Gay panic defence abolished No (under review)
Recognition in state law of same-sex couples as domestic partners Yes (domestic partnership agreement)
Step adoption by same-sex couples No (under review)
Joint adoption by same-sex couples No (under review)
Automatic IVF/artificial insemination parenthood for female partners Yes
Access to IVF for lesbians and surrogacy for gay male couples No (under review)
Same-sex marriages No (federal jurisdiction)
MSMs allowed to donate blood Yes (one year deferral - Australia-wide)

See also[edit]

References[edit]

  1. ^ Renewed calls to remove gay lain defence in SA (Star Observer - February 2014)
  2. ^ Gay law reform in Australian States and Territories: South Australia
  3. ^ "Statutes Amendment (Domestic Partners) ACT 2006 (NO 43 OF 2006)". South Australian Numbered Acts. Retrieved 2007-09-03. 
  4. ^ "Statutes Amendment (Domestic Partners) Act 2006". Government of South Australian Attorney-General's Department. Retrieved 2007-09-03. 
  5. ^ "Southern Australia Approves Domestic Partners Legislation; Gay Rights Advocates Celebrate". GayWired.com. Retrieved 2008-05-01. 
  6. ^ "Southern Australia Approves Domestic Partners Legislation; Gay Rights Advocates Celebrate". gaywired.com. Retrieved 2007-09-03. 
  7. ^ "Votes on Homosexual Issues". South Australia, Australia, House of Assembly. Archived from the original on 2007-06-07. Retrieved 2007-09-03. 
  8. ^ "SA Upper House passes bill for same-sex rights (Thursday, 7 December 2006. 6:49pm (AEDT))". ABC News Online. Retrieved 2007-09-03. 
  9. ^ "South Australia gays get new rights by Tony Grew (7 December 2006)". pinknews.com.au. Retrieved 2007-09-03. 
  10. ^ "Statutes Amendment (Equal Superannuation Entitlements for Same Sex Couples) ACT 2003 (NO 13 OF 2003)". South Australian Numbered Acts. Retrieved 2007-09-03. 
  11. ^ Australia (2010-02-04). "Commonwealth Powers (De Facto Relationships) Act 2009". Legislation.sa.gov.au. Retrieved 2014-04-05. 
  12. ^ "FAMILY LAW ACT 1975". Austlii.edu.au. Retrieved 2014-04-05. 
  13. ^ "Statutes Amendment (De Facto Relationships) Act 2011" (PDF). Retrieved 2014-04-05. 
  14. ^ "South Australian MP fights for more gay rights (15 October 2004)". Pink Guide. Retrieved 2008-05-01. 
  15. ^ "South Australia to consider same-sex civil unions (19 October 2004)". Fridae.com. Retrieved 2008-05-01. 
  16. ^ Australia. "Civil Partnerships Bill 2012". Legislation.sa.gov.au. Retrieved 2014-04-05. 
  17. ^ "New civil partnerships bill". Star Observer. 2012-10-12. Retrieved 2014-04-05. 
  18. ^ "South Australian Parliament receives Private Member's Bill proposing civil unions for all". Heraldsun.com.au. 2012-10-18. Retrieved 2014-04-05. 
  19. ^ "The latest entertainment news for Australia's LGBTIQ community". Gay News Network. Retrieved 2014-04-05. 
  20. ^ Gayapolis, Inc. (2012-09-23). "Australia: Civil Unions Proposed in South Australia". Gayapolis.com. Retrieved 2014-04-05. 
  21. ^ "Same-sex marriage alternative Bill introduced to Parliament". Adelaidenow.com.au. 2012-10-18. Retrieved 2014-04-05. 
  22. ^ "Adoption Act 1988" (PDF). Retrieved 2014-04-05. 
  23. ^ "Foster parents set to have more power over everyday decisions about children in their care". The Advertiser. 16 October 2015. 
  24. ^ "Adoption Act review". Your Say SA. 30 May 2015. Archived from the original on 6 August 2016. 
  25. ^ "Adoption Act 1988 (SA) Review" (PDF). Social and Policy Studies at Flinders University (in conjunction with the South Australian Government). 30 May 2015. Archived from the original (PDF) on 6 August 2016. 
  26. ^ Liz Walsh (5 August 2016). "Gay dads Shaun and Blue Douglas-Galley push to change South Australia's adoption laws". The Advertiser. The bill will include a clause to remove discrimination against same-sex couples adopting...will be a matter of a conscience vote for government members...Shaun has heard whispers that that conscience vote could be coming as early as September. 
  27. ^ "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 [1993] SASC 4337 (15 December 1993)". Austlii.edu.au. Retrieved 2014-04-05. 
  28. ^ Same Sex Couples & Single Women (South Australian Law)
  29. ^ "Reproductive Technology Clinical Practices Act 1988" (PDF). 
  30. ^ The ASSISTED REPRODUCTIVE TREATMENT (EQUALITY OF ACCESS) AMENDMENT BILL 2012 - austill law website
  31. ^ "Statutes Amendment (Surrogacy) Act 2009" (PDF). Retrieved 2014-04-05. 
  32. ^ "Family Relationships Act 1975" (PDF). Retrieved 2014-04-05. 
  33. ^ Australia. "Statutes Amendment (Surrogacy) Act 2009". Legislation.sa.gov.au. Retrieved 2014-04-05. 
  34. ^ "SA legalises surrogate birth". Abc.net.au. 2009-11-20. Retrieved 2014-04-05. 
  35. ^ Vaughan, Joanna (19 June 2008). "Gay couples lose surrogacy access". Adelaide Now. Retrieved 2008-06-19. 
  36. ^ Family Relationships (Parentage) Amendmeng Act 2010 text
  37. ^ SA parenting bill passes with large majority
  38. ^ "Consumer and Business Services - Office of Consumer and Business Services South Australia" (PDF). Ocba.sa.gov.au. Retrieved 2014-04-05. 
  39. ^ "Family Relationships (Parentage) Amendment Act 2011" (PDF). Retrieved 2014-04-05. 
  40. ^ Australia. "Acts of the Parliament of South Australia". Legislation.sa.gov.au. Retrieved 2014-04-05. 
  41. ^ Text of the bill
  42. ^ New laws for lesbian parents in SA
  43. ^ "South Australian female co-parents to be recognised on child's birth certificate". Star Observer. 11 February 2016. 
  44. ^ [1]
  45. ^ "Equal Opportunity Act 1984" (PDF). Retrieved 2014-04-05. 
  46. ^ Types of discrimination: SA Equal Opportunity Commission
  47. ^ Equal Opportunity Act 1984 details: SA Equal Opportunity Commission
  48. ^ SA Equal Opportunity Commission: Chosen Gender
  49. ^ Australian Human Rights Commission
  50. ^ SA gay panic law info
  51. ^ Renewed calls to remove gay lain defence in SA (Star Observer - February 2014)
  52. ^ Gay rights groups want ‘gay panic’ murder defence to be abolished in South Australia
  53. ^ "Audit Paper: Discrimination on the grounds of gender identity, sexual orientation and intersex status under South Australian legislation" (PDF). South Australian Law Reform Institute. 1 September 2015. 
  54. ^ "'Lawful Discrimination': Exceptions under the Equal Opportunity Act 1984 (SA) to allow discrimination on the grounds of gender identity, sexual orientation and intersex status" (PDF). South Australian Law Reform Institute. 1 June 2016. 
  55. ^ "South Australia changing discriminatory LGBTI laws". Star Observer. 1 August 2016. 

External links[edit]