LGBT rights in Victoria

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LGBT rights in Victoria
Victoria, Australia
Same-sex sexual activity legal? Legal since 1981
Gender identity/expression Yes (both state and federal law)
Discrimination protections Yes (both state and federal law)
Family rights
Recognition of
relationships
Domestic partnership registries since 2008
Adoption No (step parent adoptions allowed)

Lesbian, gay, bisexual and transgender (LGBT) people in the Australian state of Victoria have some of the same rights as heterosexual people, yet lack access joint adoption and other parenting as occurs in some Australian states. While Victoria was at the forefront of the gay rights movement in the 1960s and 1970s, it has never taken the lead in gay rights legislation. Gay sex between men was legalised in 1981.

Laws regarding homosexuality[edit]

Gay activism in Australia began in Victoria, particularly in Melbourne. The Melbourne-based Daughters of Bilitis (Australia), which was inspired by the American Daughters of Bilitis group, was Australia's first openly homosexual political organisation, although they were short lived. They were followed by the gay rights organisation Society Five, which formed in 1971.[1][2] Additional rights organisations followed, including the Homosexual Law Reform Coalition in 1975 and the Gay Teachers Group in the late 1970s,[3] both of which were also based in Melbourne.

The Victorian LGBT community was keenly monitoring events in South Australia surrounding the decriminalisation of homosexuality which took place between 1972 and 1975. In 1976, The Age reported that police had used entrapment to make mass arrests at Victoria's Black Rock Beach which angered the gay community and gave the issue wide public attention. Amidst the storm of protest and debate, widespread support for the decriminalisation of male homosexual acts surfaced within the political mainstream.[4][5]

It was not until December 1980 that a law was passed (72–7) to decriminalise homosexuality in Victoria.[6] This law went into effect in March 1981.[7] The age of consent for gay men was set at 18 in 1980 and was not equalised to 16 until 1991 via the Crimes (Sexual Offences) Act 1991.[1]

Historical conviction expungement[edit]

Since July 1, 2015 Victorian men who have criminal records due to historical gay sex charges, have the ability to have their historical consensual gay male sexual activity convictions erased. Legislation to that effect was unanimously passed by Victorian Parliament and signed into law with Royal Assent in 2014. The legislation is called the Sentencing Amendment (Historical Homosexual Convictions Expungement) Act 2014. Such men are able to apply to the Department of Justice to have their convictions expunged. Men who were convicted have had to deal with consequences, including restrictions on travel and applying for some jobs.[8] South Australia was the first jurisdiction within Australia to develop an expungement scheme, followed by New South Wales.[9][10]

Recognition of same-sex relationships[edit]

Domestic partnership[edit]

Victorian law allows same-sex couples to register their relationships as a domestic partnership, specifically a "domestic relationship", under the provisions of the Relationships Act 2008.[11]

The Parliament introduced the bill in December 2007. The Act allows same-sex couples to register their relationships state-wide with the Registry of Births, Deaths and Marriages. It also amended 69 other pieces of legislation to include couples who are in registered relationships.[12] The bill was passed by the Victorian Legislative Assembly on 12 March 2008 on a vote of 54 in favour and 24 against.[13] The Legislative Council voted in favour of the bill without amendments on 10 April 2008 and it was approved and given Royal Assent by the Governor of Victoria on 15 April 2008. The relationships register came into operation on 1 December 2008.[14]

Equality legislation[edit]

In August 2001, the Statute Law Amendment (Relationships) Act 2001 and the Statute Law Further Amendment (Relationships) Act 2001 amended 60 Acts in Victoria to give same-sex couples, called domestic partners, some rights equal to those enjoyed by de facto couples, including hospital access, medical decision making, superannuation, inheritance rights, property tax, landlord/tenancy rights, mental health treatment, and victims of crime procedures.[15]

Civil union proposal[edit]

In March 2006, independent Victorian MP Andrew Olexander proposed a private member's bill to allow civil partnerships in the state, but the state government would not allow it to be drafted by the parliamentary counsel.[16]

City councils relationship registers[edit]

The City of Melbourne provided a "Relationship Declaration Register" for all relationships and carers starting in April 2007. While the register does not confer legal rights in the way traditional marriage does, it may be used to demonstrate the existence of a de facto relationship in relation to the Property Laws Act 1958, the Administration and Probate Act 1958 and other legislation involving domestic partnerships.[17][18][19] The City of Yarra launched its Relationship Declaration Program the following month. Under the program two people may declare that they are partners and have this declaration recorded in the Yarra City Council Relationship Declaration Register.[20]

Adoption and parenting rights[edit]

Adoption[edit]

Victoria currently does not allow for the joint adoption of children by a same-sex couple. Such couples can be appointed as foster parents or guardians, but do not have the right to adopt a child together – even if that child has been in their care for years.[21]

In May 2014, the then opposition Victorian Labor Party unanimously approved a change in the party's platform, in support of full adoption rights for same-sex couples raising children.[22] If approved by the Victorian Parliament, such a law change would also likely address related inequalities, such as the inability of a step-parent to adopt their partner's child, the inability of a gay couple to jointly adopt a child conceived through IVF, as well as assisting children living under permanent care orders, in step-parent families, in foster families, and children born through international surrogacy arrangements.[23]

Labor won government at the November 2014 state election. The newly appointed Equality Minister Martin Foley promised to amend the Adoption Act 1984 to allow for same-sex adoption. Mr Foley said Labor would also tackle other inequalities, including the inability of a step-parent to adopt their partner's child and the inability of a gay couple to jointly adopt a child conceived through IVF.[24] A review of Victoria's adoption laws, commissioned by former chief parliamentally counsel Eamonn Moran QC, handed a final report to the relevant minister on 8 May 2015, though legislative reform is still outstanding.[25][21]

In response the 2007 Victorian Law Reform Commission report into assisted reproduction, surrogacy and adoption, the then Brumby Labor government stopped short of allowing same-sex couples full adoption rights.[26]

Assisted reproduction and surrogacy[edit]

In May 1988, Victoria became the first state in Australia in which a child was born by use of IVF surrogacy. In July 1988, sections 11, 12, and 13 of the Infertility (Medical Procedures) Act 1984 were commenced to prevent a repetition of IVF surrogacy in Victoria, by prohibiting the use of IVF technology on women who have not been diagnosed as infertile and rendering commercial and altruistic surrogacy arrangements void.[27] In addition, only women who were married were allowed to access IVF treatment. Then in 1997, women in de facto relationships with men were allowed access to IVF treatment under the Infertility Treatment (Amendment) Act 1997.[28]

On 28 July 2000, re McBain v State of Victoria, Justice Sundberg of the Federal Court of Australia concluded that the Victorian legislation infringed the prohibition on discrimination found in section 22 of the Sex Discrimination Act. This eliminated any marriage requirement, but did not clearly address the medical needs requirement. This legal decision opened the door for lesbian couples to use IVF procedures.[29][30]

In June 2007, the Victorian Law Reform Commission 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 recognised as parents to their partner's children.[31] The proposed changes would also mean drastic reforms to surrogacy which, while technically legal, was practically impossible in Victoria; a woman would no longer have to be clinically infertile to be a surrogate mother. In addition, parents who have children through surrogacy would be able to go to the County Court and apply for a substitute parentage order for legal recognition.[32] Birth certificates could use the word parent instead of mother and father.[33]

Victoria adopted most of the 202 recommendations of the Victorian Law Reform Commission in legislation which was introduced to Parliament in September 2008.[34][35] This made IVF legal for all women (except sex offenders), and gave parents of surrogate children, including female same-sex partners, greater parenting rights.[36] Altruistic surrogacy would become legal, while commercial surrogacy would remain illegal.

The lower house voted 47–34 in favour of the Assisted Reproductive Treatment Bill 2008, with all Coalition members voting against it.[37] After passing the upper house by just two votes, the bill was amended and forced back for another vote in the lower house, where it passed. The bill subsequently received Royal Assent on 4 December 2008 and became effective from 1 January 2010.[38][39]

Discrimination protections[edit]

Since 2000, Victoria prohibits discrimination based on sexual orientation and gender identity under the Equal Opportunity (Gender Identity and Sexual Orientation) Act 2000 – which amended the Equal Opportunity Act 1995.[40][41]

Since 2010, the Equal Opportunity Act 1995 has been repealed and replaced with the Equal Opportunity Act 2010[42] - that still includes both sexual orientation and gender identity.

Federal law also protects LGBT and Intersex people in Victoria in the form of the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013.[43]

The Government has also promised to rewrite equal opportunity laws to make it harder for faith-based organisations, such as schools, to discriminate against certain employees because of their sexual orientation and religious beliefs.[44] That reform is yet to be presented to the Parliament.

HIV transmission law repeal[edit]

In 2015, the Victorian Government announced it would repeal Section 19A of the Crimes Act, a law which singled out intentional HIV transmission for harsher penalties of up to 25 years imprisonment, while the maximum penalty for manslaughter is 20 years. As a result of the reform, intentional infection of HIV is considered under existing criminal offences such as "causing serious injury".[45] The Crimes Amendment (Repeal of Section 19A) Act 2015 passed the Legislative Assembly on 7 May 2015 and passed, with bipartisan support, the Legislative Council on 28 May 2015, receiving royal assent on 2 June 2015.[46][47]

Summary table[edit]

Same-sex sexual activity legal Yes (since 1981 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 Yes
Hate crime laws include gender identity or expression Yes
Recognition in state law of same-sex couples as domestic partners Yes
Step adoption by same-sex couples Yes
Joint adoption by same-sex couples No (under review, proposed)
Access to IVF for lesbians Yes
Same-sex marriages No (Federal jurisdiction)
MSMs allowed to donate blood Yes (One year deferral - Australia-wide)

See also[edit]

References[edit]

  1. ^ a b Gay law reform in Australian States and Territories: Victoria pp. 10-15
  2. ^ Kaplan, Gisela (1996). The Meagre Harvest: The Australian Women's Movement 1950s–1990s. St Leonards. p. 93. 
  3. ^ "Melbourne Gay Teachers and Students Group" "A gay bibliography – Melbourne Gay Teachers Group". 
  4. ^ "Melbourne Gay & Lesbian History series – Blackrock Beach Beat". Australian Lesbian & Gay Archives. Retrieved 2009-08-29. 
  5. ^ Roberts, Peter (19 September 1979). "State poised for gay law reform". The Age. Retrieved 2009-08-29. [dead link]
  6. ^ "Homosexual law reform in Australia". Australian Lesbian & Gay Archives. Retrieved 2009-08-29. 
  7. ^ Gay law reform in aus States and territories
  8. ^ Victorian men charged with gay sex crimes will have their convictions expunged (ABC News)
  9. ^ [1]
  10. ^ [2]
  11. ^ Relationships Act 2008 (Vic)
  12. ^ "Relationships Bill 2007". www.legislation.vic.gov.au. Archived from the original on 9 February 2008. Retrieved 2008-03-13. 
  13. ^ "Victoria's Next To Get Hitched". samesame.com.au. Retrieved 2008-03-13. 
  14. ^ "Vic relationships registry soon to be law (9 April 2008)". MCV. Retrieved 2008-05-01. 
  15. ^ Same sex relationships, Victorian Equal Opportunity & Human Rights Commission
  16. ^ "Australian Lawmaker's Civil Unions Bill Appears Doomed (19 March 2006)". 365Gay.com. Archived from the original on 5 June 2008. Retrieved 2008-05-01. 
  17. ^ "Victoria's first Relationship Declaration Register launched, Monday, 2 April 2007". City of Melbourne. Retrieved 2007-09-03. 
  18. ^ "VicSame-sex register for Victoria". News.com.au. 24 April 2007. Retrieved 2007-09-03. [dead link]
  19. ^ "Victoria's first Relationship Declaration Register launched". City of Melbourne. Retrieved 2008-05-01. 
  20. ^ "First Couple to Sign Declaration for the Yarra Relationship Register". City of Yarra. 1 May 2007. Retrieved 2008-06-12. 
  21. ^ a b Farrah Tomazin (21 February 2015). "Same-sex couples a step closer to equal adoption rights in Victoria". The Age. Retrieved 4 May 2015. 
  22. ^ Labor votes in favour of same sex adoption
  23. ^ Same sex adoption reform on the agenda
  24. ^ Farrah Tomazin (7 December 2014). "Australia's first equality minister to reform gay adoption laws". The Age. Retrieved 4 May 2015. 
  25. ^ Department of Premier and Cabinet: Review to permit adoption by same-sex couples under Victorian law
  26. ^ "Victoria catches up on surrogacy and IVF law". The Australian. 15 December 2007. Retrieved 2008-05-14. 
  27. ^ "Lawlink NSW: 2. Current State of the Law". Lawlink NSW. Retrieved 2008-05-14. 
  28. ^ "Infertility Treatment (Amendment) Act 1997" (PDF). Retrieved 2014-04-05. 
  29. ^ "McBain v State of Victoria: Access to IVF for all Women". Parliament of Australia. Retrieved 2008-05-14. 
  30. ^ "IVF decision brings charge of social experimentation". ABC News. 28 July 2000. Retrieved 2008-05-14. 
  31. ^ "Assisted Reproduction and Adoption, Final Report". Victorian Law Reform Commission. Archived from the original on 17 November 2007. Retrieved 2008-05-14. 
  32. ^ Nader, Carol (8 June 2007). "Gays, singles may get more IVF help". Melbourne: The Age. Retrieved 2008-05-14. 
  33. ^ Gardiner, Ashley; Whinnett, Ellen (8 June 2007). "Cabinet split looms on IVF". Herald Sun. Retrieved 2008-05-14. 
  34. ^ "Assisted Reproductive Technology and Adoption: Final Report (overview)". Victorian Law Reform Commission. 4 January 2007. 
  35. ^ "Who's your mummy? (December 15, 2007)". Melbourne Community Voice. Retrieved 2008-05-15. 
  36. ^ "Victorian IVF win for Lesbians". GenerationQ.net. Retrieved 2008-05-14. 
  37. ^ Best, Catherine (10 October 2008). "Lesbians celebrate fertility law victory". The Canberra Times. Retrieved 2008-10-10. 
  38. ^ "Non-birth parents can now be named on birth certificates". Heraldsun.com.au. 2010-01-12. Retrieved 2014-04-05. 
  39. ^ Assisted Reproductive Treatment Act 2008
  40. ^ "Sexual orientation and lawful sexual activity". Victorian Equal Opportunity and Human Rights Commission. Retrieved 2007-09-03. 
  41. ^ "Equal Opportunity Act 1995". Austlii. Retrieved 2008-05-01. 
  42. ^ "EQUAL OPPORTUNITY ACT 2010 (NO. 16 OF 2010)". Austlii.edu.au. Retrieved 2014-04-05. 
  43. ^ Australian Human Rights Commission
  44. ^ Henrietta Cook (8 December 2014). "Religious groups hit out at Labor's move to rewrite state's equal opportunity laws". The Age. Retrieved 4 May 2015. 
  45. ^ Benjamin Riley (14 April 2015). "Victorian Government to repeal 19A and address HIV stigma". Star Observer. Retrieved 4 May 2015. 
  46. ^ Crimes Amendment (Repeal of Section 19A) Act 2015
  47. ^ Benjamin Riley (28 May 2015). "Victoria repeals Section 19A to reduce HIV stigma in law". Star Observer. 

External links[edit]