LGBT rights in the Australian Capital Territory

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LGBT rights in the Australian Capital Territory
Australian Capital Territory (Australia)
Same-sex sexual activity legal? Yes, since 1985
Discrimination protections Yes (both federal and territory law)
Family rights
Recognition of
relationships
Currently, civil unions; Previously allowed Same-sex marriage
Adoption Yes

The Australian Capital Territory (ACT) is one of Australia's leading jurisdictions with respect to the rights of lesbian, gay, bisexual and transgender (LGBT) people. The ACT has made a number of reforms to territory law designed to prevent discrimination of LGBT people and is notable for bring the only state or territory in Australia to pass a state or territory-based law for same-sex marriage.

Laws regarding homosexuality[edit]

In May 1973, a simple motion passed in the Commonwealth House of Representatives by 64 votes to 40, decriminalising homosexual acts between consenting adults in private in the Australian Capital Territory. The motion said:[1]

That in the opinion of this House homosexual acts between consenting adults in private should not be subject to the criminal law

— October 1973, House of Representatives

In May 1975 the now-defunct ACT Legislative Council passed an ordinance which decriminalised some aspects of male-to-male sexual activity (though retained a minimum 5-year sentence to any individual convicted of anal sex) and elevated the age of consent for homosexual sex to be 18, rather than the 16 years of age reserved for heterosexual sex. Eventually, the conservative federal government of Liberal Malcolm Fraser signed off on the changes, resulting in the implementation of the Law Reform (Sexual Behaviour) Ordinance 1976.[1][2] It was not until December 1985 that the law was amended so as to remove the draconian punishments for homosexual sex and the age of consent was equalised, when the Crimes (Amendment) Ordinance 1985[3] was enacted.

Historical conviction expungement[edit]

Since November 2015, people who have been previously convicted of consensual homosexual sexual conduct prior to its decriminalisation in 1976 can apply to have their convictions erased permanently from their records.[4][5] To that effect the Spent Convictions (Historical Homosexual Convictions Extinguishment) Amendment Act 2015 passed the Legislative Assembly on 29 October 2015 and was notified on 6 November 2015.[6] South Australia, Victoria and New South Wales have also implemented similar expungement schemes.

Recognition of same-sex relationships[edit]

Same-sex marriage[edit]

The ACT is the only jurisdiction in Australia to have legalised same-sex marriage. This occurred in 2013 when the territory parliament passed the Marriage Equality (Same Sex) Act 2013, with the Act going into effect and enabling same-sex couples to marry from 7 December 2013.[7] However, the full bench of the High Court of Australia heard the Commonwealth Government's challenge to the ACT marriage laws on 3 December.[8] The court determined that the territory was not permitted to legalise same-sex marriage; issuing its ruling 12 December 2013 by contending that - under the Constitution - only the Federal Parliament could legalise same-sex marriage.[9]

Domestic Relationships Act 1994[edit]

The Australian Capital Territory was the first jurisdiction in Australia to legally recognise the unions of same-sex couples, in the form of the Domestic Relationships Act 1994.[10] The Act defined a domestic partnership in much the same way common marriages are treated; a personal relationship between 2 adults (other than a married couple) in which one [or both] provides personal or financial commitment and support of a domestic nature for the material benefit of the other.[11] The Act also provided for distribution of property and finances in the event of a separation, and inheritance in the event of death.

Civil Partnerships Act 2008[edit]

In May 2008, after several attempts to amend the scheme, ACT Attorney-General Simon Corbell announced the Territory had abandoned its civil partnerships legislation, eliminated any ceremonial aspects, and settled for a system of relationship registers virtually identical to the ones operating in Tasmania and Victoria. The federal Government had not compromised at any point during negotiations.[12][13] The legislation passed the ACT Legislative Assembly on 8 May 2008, giving same-sex couples increased access to superannuation, taxation and social security law reforms. While legislative ceremonies were removed from the Bill, an administrative ceremony may be performed by a representative the ACT Register-General. The Civil Partnerships Act 2008 commenced on 19 May 2008.[14][15][16]

The Act was amended in 2009 to allow for same-sex couples to participate in an official partnership ceremony. This made the ACT the first territory in the country to legalise civil partnerships ceremonies for same-sex couples.[17] The amended legislation required that same-sex couples register their intention to hold a ceremony and opposite-sex couples be barred from entering into a civil partnership ceremony.[18] The Act was subsequently repealed as a result of the Territory's implementation of the Civil Unions Act 2012.[19]

Civil Unions Act 2012[edit]

In August 2012, the ACT's Civil Unions Bill passed after legal advice demonstrated that the Federal government had removed its ability to legislate for territorial and state same-sex marriage after it defined marriage as only between man and woman in the Marriage Amendment Act 2004. The Civil Unions bill grants many of the same rights to same-sex couples as people married under the Marriage Act.[20] The Act was not challenged by the Gillard federal Government. The Act was to be repealed upon commencement of the Marriage Equality (Same Sex) Act 2013, which (if not struck down by the High Court), would have legalised same-sex marriage in the Territory.[21] Due to the High Court's ruling striking down the ACT's same-sex marriage law as invalid, the repeal of the Civil Unions Act 2012 is of no effect and civil unions can take place in the ACT.[22] The law requires couples to enter into a civil union ceremony (also known as a "declaration") in the presence of at least a civil union celebrant and a witness.[22]

Adoption and parenting rights[edit]

The Adoption Act 1993,[23] as amended in 2004, states that "...an adoption order shall not be made otherwise than in favour of 2 people jointly (emphasis added), being a couple...married or not, (emphasis added), have lived together in a domestic partnership for a period of not less than 3 years", ensuring that same-sex couples can jointly adopt a child in the ACT.[24]

Under Part 15.4 of the Children and Young People Act 2008[25] there is no prohibition to fostering children by a gay or lesbian person or couple. In November 2003, legislation known as the Parentage Act 2004 passed into law by the ACT Legislative Assembly ensured that the partners of lesbians who conceive children through IVF were recognised as legal parents.[26][27]

Assisted Reproductive Technology and In-Vitro Fertilization is legal for male and female same-sex couples in the ACT. In 2000, the ACT became the first state or territory to allow the genetic parents of a child born through surrogacy to become its legal parents without going through an adoption process.[28]

Discrimination protections[edit]

The Australian Capital Territory Discrimination Act 1991 covers grounds for unlawful discrimination with respect to sex, sexuality and gender identity, among a host of other attributes.[29] The ACT Human Rights Commission administers this Act and the Human Rights Act 2004,[30] with a major aspect of its role being to handle complaints of discrimination, sexual harassment, vilification (on the grounds of race, sexuality, gender identity or HIV/AIDS status) or victimisation.[31] Areas covered with respect to anti-discrimination protections include but are not limited to: Work; employment agencies; services or facilities; accommodation; clubs; professional or trade organisations.

On 8 June 2016, the ACT Government introduced the Discrimination Amendment Bill 2016, a bill which expanded the number of grounds upon which it is illegal to vilify or discriminate against someone in the ACT. Among a number of additions, the bill included "intersex status" and "altered sex" as protected traits.[32] The bill unanimously passed the ACT Legislative Assembly on 4 August 2016 and parts of the new law went into effect on 24 August 2016, the day after notification.[33][34] The remaining parts on the law come into effect on 3 April 2017.[35]

Federal law also protects LGBTI people in the Australian Capital Territory in the form of the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013.[36]

Summary table[edit]

Same-sex sexual activity legal Yes (since 1985 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
Gay sex criminal records expunged Yes
Gay panic defence abolished Yes
Recognition in state law of same-sex couples as domestic partners Yes (civil union)
Step adoption by same-sex couples Yes
Joint adoption by same-sex couples Yes
Automatic IVF/artificial insemination parenthood for female partners Yes
Access to IVF for lesbians Yes
Same-sex marriages No (federal jurisdiction - an ACT law called the Marriage Equality (Same Sex) Act 2013 was struck down by the High Court in 2013)
MSMs allowed to donate blood Yes (one year deferral - Australia-wide)

See also[edit]

References[edit]

  1. ^ a b Homosexual law reform in Australian States and Territories
  2. ^ Law Reform (Sexual Behaviour) Ordinance 1976 (repealed)
  3. ^ Crimes (Amendment) Act (No 5) 1985 (repealed)
  4. ^ "Explanatory Statement: Spent Convictions (Historical Homosexual Convictions Extinguishment) Amendment Bill 2015" (PDF). Australian Capital Territory Legislative Assembly. 
  5. ^ Clare Sibthorpe (29 October 2015). "Homosexual acts can soon be scrapped from criminal records in the ACT". Canberra Times. Fairfax Media. 
  6. ^ "Details of the Spent Convictions (Historical Homosexual Convictions Extinguishment) Amendment Bill 2015". ACT Legislation Register. 
  7. ^ First same-sex marriages in Canberra (ABC News)
  8. ^ December date set for Aussie high court gay marriage challenge
  9. ^ Gay couples given five-day window to wed after High Court reserves decision
  10. ^ Domestic Relationships Act 1994
  11. ^ Act Explanatory Memorandum
  12. ^ Maley, Paul; Ryan, Siobhain (2008-05-05). "ACT made to axe gay unions". The Australian. Retrieved 2008-05-05. 
  13. ^ Smiles, Sarah (2008-05-05). "Federal veto forces ACT backdown on gay unions". Melbourne: The Age. Retrieved 2008-05-05. 
  14. ^ "Watered down same-sex laws pass in ACT". Sydney Morning Herald. 2008-05-09. Retrieved 2008-05-09. 
  15. ^ "Civil Partnerships Act 2008". ACT Government. Retrieved 2008-05-20. 
  16. ^ "ACT recognises same sex couples". Melbourne: The Age. 2008-05-20. Retrieved 2008-05-20. 
  17. ^ Green, Jessica (2009-11-11). "Australian territory legalises gay civil partnership ceremonies". Pink News. Retrieved 2009-11-18. 
  18. ^ "ACT win fight on gay wedding laws". AdelaideNow. 2009-11-26. Retrieved 2009-11-30. 
  19. ^ Civil Partnerships Amendment Act 2008 (repealed)
  20. ^ "Assembly passes civil unions reforms". 
  21. ^ Civil Unions Act 2012
  22. ^ a b "Civil Unions". ACT Government: Justice and Community Safety Division. 25 February 2014. Retrieved 24 June 2014. 
  23. ^ Adoption Act 1993
  24. ^ GayLawNet - ACT
  25. ^ Children and Young People Act 2008
  26. ^ Parenting milestone in the ACT
  27. ^ Parentage Act 2004
  28. ^ ACT approves surrogacy bill
  29. ^ Guide to Australia's anti-discrimination laws: ACT
  30. ^ Human Rights Act 2004
  31. ^ ACT Human Rights Commission
  32. ^ Kirsten Lawson (3 August 2016). "Shane Rattenbury moves to outlaw vilification on grounds of religion". Canberra Times. 
  33. ^ Kirsten Lawson (4 August 2016). "ACT parliament passes religious vilification laws". Canberra Times. 
  34. ^ ACT Legislation Register: Discrimination Amendmnent Bill 2016
  35. ^ ACT Legislation Register
  36. ^ Australian Human Rights Commission

External links[edit]