LGBT rights in South Australia
|LGBT rights in South Australia|
|Same-sex sexual activity legal?||Legal since 1975|
|Discrimination protections||Yes (both state and federal law)|
|Domestic Partnership Agreement since 2007 (no registry)|
|Same-sex marriage prohibited under federal law since 2004; see History of same-sex marriage in Australia|
The Australian state of South Australia has a chequered history with respect to the rights of lesbian, gay, bisexual and transgender (LGBT) people. Initially South Australia was a pioneer in Australian LGBT rights, being the first state in the nation to decriminalise homosexuality and the first to introduce a non-discriminatory age of consent for sexual activity. Subsequently, the state has fallen behind other Australian jurisdictions, with a number of laws continuing to discriminate against LGBT people and same-sex couples.
Same-sex couples can enter into domestic partnership agreements, but unlike other jurisdictions there is no relationship registry nor the option of an official civil union ceremony. Such couples also lack legal equity with respect to adoption, surrogacy and assisted reproductive technology rights. As of 2016, 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 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
The murder of George Duncan on 10 May 1972, with police involvement suspected in his death, shifted public attitudes with respect to homosexuality. That same year, 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.
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 cleared from a person's criminal record 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. This is not a true expungement scheme because instead of being automatically erased from a criminal record upon application, the conviction is treated as "spent" if the person commits no crimes for a set number of years.
Victoria, the Australian Capital Territory and New South Wales have subsequently introduced expungement schemes which are intended to achieve a similar purpose. 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
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.
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). Such rights were eventually federalised in 2009.
Recognition of overseas same-sex marriage
South Australia drew media attention following the death of David Bulmer-Rizzi while on a honeymoon in Adelaide with his husband Marco. Although the two men had validly married in the United Kingdom, this was not recognised under South Australiam law with Bulmer-Rizzi's death certificate recording his marital status as "never married" and his father treated as next-of-kin rather than his husband. Premier Jay Weatherill subsequently called Marco Bulmer-Rizzi to offer a personal apology for the state's discrimination and to promise that the law would be updated to ensure state recognition of overseas same-sex marriages in future. The death certificate was also updated to acknowledge the British marriage. Weatherill's government subsequently sought to address the issue by introducing legislation for a relationship register.
Relationships register proposal
On 22 September 2016 the Relationships Register Bill 2016 was introduced into the lower house of parliament. The bill establishes a registry for relationships, modelled in the same way as other Australian states with domestic partnership registries. Same-sex couples married in jurisdictions which allow same-sex marriage would be able to have their relationships officially recognised under the legislation. The bill also amends legislation to allow same-sex couples equal access to altruistic surrogacy and allow for IVF treatment for single women and lesbian couples.
Attempts at legalising civil unions
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."
Adoption and parenting rights
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 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. 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. 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. Around the same time, a report issued by the South Australian Law Reform Institute recommended amendments to the Adoption Act allowing for same-sex adoption and equal access to assisted reproductive treatment for same-sex couples. 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 will be a conscience vote matter for government members.
On 21 September 2016, the Adoption (Review) Amendment Bill 2016 was introduced into the lower house. The bill amends the Adoption Act to allow for, among other reforms, same-sex adoption and adoption of children by single persons in South Australia. Debate on the bill was adjourned.
Assisted reproductive technology
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.
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 4 May 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 subsequently failed in the lower house, meaning that fertile female same-sex couples remain ineligible for assisted reproductive technology treatments in South Australia.
At the request of the state government, in May 2016 the South Australian Law Reform Institute issued a sweeping report recommending wholesale changes to assisted reproductive technology (ART) laws in South Australia, including allowing equal access to IVF and ART services for same-sex couples and single women.
A bill currently pending in the parliament, which creates a relationship registry in the state, would allow registered same-sex couples equal access to assisted reproductive technologies.
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.
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.
At the request of the state government, in May 2016 the South Australian Law Reform Institute issued a sweeping report recommending changes to surrogacy laws in South Australia, specifically allowing same-sex couples access to altruistic surrogacy.
A bill currently pending in the parliament, which creates a relationship registry in the state, would allow registered same-sex couples equal access to altruistic surrogacy arrangements.
Recognition of lesbian parents
In 2010 the Family Relationships (Parentage) Amendment Act 2010 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. The bill was subsequently given Royal Assent and became law on 23 June 2011, commencing on 15 December 2011.
In June 2015, the Family Relationships (Parentage Presumptions) Amendment Bill 2015 passed the upper house. The bill abolished the 3-year relationship requirement for parentage recognition. 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. Minor amendments to the bill in the lower house meant it had to return to the upper house for final approval, which occurred later that year. The bill received royal assent on 23 June 2016 and went into effect 3 months after being signed into law (i.e. from 23 September 2016).
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. Repeated attempts to abolish the law have proved to be unsuccessful. 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.
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. 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.
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. 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 went into full effect on 8 September 2016.
Gender identity and birth certificate legislation
On 4 August 2016, the Births, Deaths and Marriages Registration Amendment Bill 2016 was introduced into the lower house of parliament. The bill amends South Australian law by removing the requirement for transgender people to undergo gender reassignment surgery before changing their gender on their birth certificate. Instead, a person would need to consult a medical professional for a psychological assessment. A conscience vote on the legislation was held on 22 September 2016, and the bill was defeated after the Speaker broke a 19-19 tie by voting against the bill. A number of supporters of the bill, including the Premier, were not in attendance and had expected a vote would not be held on the legislation that day, with proponents accusing opponents of the bill of orchestrating the vote to coincide with the moment supporters of the bill would be absent from parliament. The bill is expected to be re-introduced again in late 2016 or early 2017.
|Same-sex sexual activity legal||(since 1975 for males; always for females)|
|Equal age of consent|
|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|
|Gay sex criminal records expunged|
|Gay panic defence abolished||(under review)|
|Recognition in state law of same-sex couples as domestic partners||(domestic partnership agreement; relationship register bill pending)|
|Step adoption by same-sex couples||(Bill pending)|
|Joint adoption by same-sex couples||(Bill pending)|
|Automatic IVF/artificial insemination parenthood for female partners|
|Access to IVF for lesbians and surrogacy for gay male couples||(Bill pending)|
|Same-sex marriages||(federal jurisdiction)|
|MSMs allowed to donate blood||(one year deferral - Australia-wide)|
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- "Statutes Amendment (Domestic Partners) ACT 2006 (NO 43 OF 2006)". South Australian Numbered Acts. Retrieved 2007-09-03.
- "Statutes Amendment (Domestic Partners) Act 2006". Government of South Australian Attorney-General's Department. Retrieved 2007-09-03.
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- "Statutes Amendment (Equal Superannuation Entitlements for Same Sex Couples) ACT 2003 (NO 13 OF 2003)". South Australian Numbered Acts. Retrieved 2007-09-03.
- 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.
- "Statutes Amendment (De Facto Relationships) Act 2011" (PDF). Retrieved 2014-04-05.
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- "SA amends death certificate to recognise British man's same-sex marriage". ABC News. Australian Broadcasting Corporation. 21 January 2016. Retrieved 3 October 2016.
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- South Australian Legislation: Relationships Register Bill 2016
- "South Australia finally moves to change laws to recognise oversees same-sex marriages". Gay News Network. 22 September 2016.
- "SA govt introduce bill to legally recognise same-sex relationships". Out in Perth. 22 September 2016.
- "South Australian MP fights for more gay rights (15 October 2004)". Pink Guide. Retrieved 2008-05-01.
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- "New civil partnerships bill". Star Observer. 2012-10-12. Retrieved 2014-04-05.
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- "Same-sex marriage alternative Bill introduced to Parliament". Adelaidenow.com.au. 2012-10-18. Retrieved 2014-04-05.
- "Adoption Act 1988" (PDF). Retrieved 2014-04-05.
- "Foster parents set to have more power over everyday decisions about children in their care". The Advertiser. 16 October 2015.
- "Adoption Act review". Your Say SA. 30 May 2015. Archived from the original on 6 August 2016.
- "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.
- "Rainbow Families: Equal Recognition of Relationships and Access to Existing Laws Relating to Parentage, Assisted Reproductive Treatment and Surrogacy" (PDF). South Australian Law Reform Institute. 1 May 2016.
- 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.
- Liz Walsh (20 September 2016). "Child Protection Minister Susan Close's Bill would allow same-sex couples to apply for adoption in SA". The Advertiser.
- South Australian Legislation: Adoption (Review) Amendment Bill 2016
- "Hansard: 21 September 2016". Parliament of South Australia (House of Assembly). 21 September 2016.
Refer to pages 6880-6882 for full summary of amendments
- "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.
- Same Sex Couples & Single Women (South Australian Law)
- "Reproductive Technology Clinical Practices Act 1988" (PDF).
- The ASSISTED REPRODUCTIVE TREATMENT (EQUALITY OF ACCESS) AMENDMENT BILL 2012 - austill law website
- "Relationships Registry Bill 2016" (PDF). Parliament of South Australia. 22 September 2016.
- "Statutes Amendment (Surrogacy) Act 2009" (PDF). Retrieved 2014-04-05.
- "Family Relationships Act 1975" (PDF). Retrieved 2014-04-05.
- Australia. "Statutes Amendment (Surrogacy) Act 2009". Legislation.sa.gov.au. Retrieved 2014-04-05.
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- Vaughan, Joanna (19 June 2008). "Gay couples lose surrogacy access". Adelaide Now. Retrieved 2008-06-19.
- Family Relationships (Parentage) Amendmeng Act 2010 text
- SA parenting bill passes with large majority
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- "South Australian female co-parents to be recognised on child's birth certificate". Star Observer. 11 February 2016.
- New laws for lesbian parents in SA
- "Family Relationships (Parentage Presumptions) Amendment Act 2016" (PDF). Parliament of South Australia. 23 June 2016.
- "Equal Opportunity Act 1984" (PDF). 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
- SA gay panic law info
- Renewed calls to remove gay lain defence in SA (Star Observer - February 2014)
- Gay rights groups want ‘gay panic’ murder defence to be abolished in South Australia
- "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.
- "'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.
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