LGBT rights in South Australia

LGBT rights in South Australia

Same-sex sexual activity legal? Always legal for women; legal for men since 1975
Gender identity/expression Change of sex requires sexual reassignment surgery and no subsisting marriage (legislation with less onerous requirements pending as of 2016)
Discrimination protections Yes (both state and federal law)
Family rights
Recognition of
relationships
Domestic Partnership Agreement since 2007 (no registry or ceremony; registry legislation pending as of 2016)
Restrictions:
Same-sex marriage prohibited under federal law since 2004; see History of same-sex marriage in Australia
Adoption No (legislation to allow same-sex adoption pending as of 2016)

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 national pioneer of LGBT rights in Australia, being the first state in the country to decriminalise homosexuality and to introduce a non-discriminatory age of consent for sexual activity.[1][2] 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. These 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, alongside Queensland, to have retained the gay panic defence within its common law.[3]

Laws regarding sexual activity

As with other former British colonies, South Australia originally derived its criminal law from the United Kingdom. This included the prohibition of "buggery" and "gross indecency" between males.[N 1] Similarly to the United Kingdom, lesbianism was never criminalised under state law.[1]

When he was the South Australian Attorney-General in the mid-1960s, Don Dunstan first considered repealing homosexual offences but did not proceed at the time due to a perceived lack of public support.[1] The murder of George Duncan on 10 May 1972, with the police accused of his death, shifted public attitudes in favour of legalising homosexuality.[4] 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. This was a limited reform in that it retained the homosexuality offences, simply offered a narrow exception and was not intended to achieve legal parity of treatment, with Hill maintaining that homosexuality should not receive social approval.[1]

In 1975, South Australia went further with the Criminal Law (Sexual Offences) Amendment Act 1975 and became the first state or territory to offer equality under criminal law, repealing homosexual offences and providing an equal age of consent for sexual intercourse at 17 years of age.[1]

Historical conviction expungement

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.[5]

Victoria, the Australian Capital Territory and New South Wales have subsequently introduced expungement schemes which are intended to achieve a similar purpose.[6] 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

Domestic partnerships

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.[7][8][9][10][11][12][13]

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).[14] Such rights were eventually federalised in 2009.[15][16]

Further legislation in 2011 - the Statutes Amendment (De Facto Relationships) Act 2011 - recognised same sex couples in asset forfeiture, property and stamp duty applications.[17]

Relationships register proposal

South Australia drew media attention following the death of David Bulmer-Rizzi while on a honeymoon in Adelaide with his husband Marco.[18] 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.[18] 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.[18] The death certificate was also updated to acknowledge the British marriage.[19] Weatherill's government subsequently sought to address the issue by introducing legislation for a relationship register.[20]

On 22 September 2016 the Relationships Register Bill 2016 was introduced into the House of Assembly (lower house).[20][21] 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.[22][23]

Substantive debate on the bill in the lower house occurred on 15 November 2016. During committee stage, the bill was essentially divided in two; one bill (referred to as the Statutes Amendment (Surrogacy Eligibility) Bill 2016) comprising elements of the original bill which related to surrogacy and IVF regulations in the state and the other bill (referred to as the Relationships Register (No. 1) Bill 2016) comprising the remaining elements of the original bill which related to the establishment of a relationship register and the recognition of overseas same-sex marriages. The Relationships Register (No. 1) Bill 2016 passed the committee stage and a second and third reading in the lower house and will now proceed to the Legislative Council.[24][25]

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."[26][27]

In October 2012, independent MP Bob Such introduced a bill to the SA Legislative Assembly called the Civil Partnership Bill 2012.[28][29][30][31][32][33] It failed to pass either house.

Adoption and parenting rights

Same-sex adoption

South Australia is one of two jurisdictions within Australia that ban the adoption of children by same-sex couples (the other being the Northern Territory). All other Australian jurisdictions allow same-sex couples to adopt children.

The Adoption Act 1988[34] allows only heterosexual couples (both married and de facto) to adopt children. Single individuals are also banned from adoption in South Australia, making it the only place in Australia that does this.

The difficulties of British same-sex adoptive parents Shaun and Blue Douglas-Galley in bringing their adopted children to South Australia led them to lobby for legal reform, including a letter writing campaign to 70 politicians and an online petition that gathered 27,00 signatures.[35] In response, in July 2014 the Government of South Australia announced the formation of a committee to review its adoption laws, including whether same-sex couples and singles should 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.[36] 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.[37][38] 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.[39] In August 2016, the Minister for Education and Child Development, Susan Close, said in a statement she would "soon" 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.[40][41]

On 21 September 2016, the Adoption (Review) Amendment Bill 2016 was introduced into the House of Assembly (lower house).[42] 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.[43] Debate on the bill in the lower house occurred between 2–15 November[44] until a conscience vote was held on the legislation. The bill passed the lower house, with the clauses of the bill allowing same-sex adoption being supported by 27 votes to 16.[45] An amendment to the bill tightening the eligibility of single people to adopt was passed by 22 votes to 21; the amendment stating single people could have adoption orders granted where "the Court is satisfied that there are special circumstances justifying the making of the order".[46] The bill now proceeds to the Legislative Council.

Assisted reproductive technology and surrogacy

South Australia is the only jurisdiction in Australia to ban fertile single women and lesbians from accessing assisted reproductive treatments (ART). A ruling by the Supreme Court of South Australia in 1993 established that a single woman must be "medically infertile" in order to receive IVF treatment. The court found that the restriction of access to treatment on the basis of marital status (in the Assisted Reproductive Treatment Act 1988) contravened the federal Sex Discrimination Act 1984, thereby allowing infertile women of any sexual orientation access to ART.[47][48] The Assisted Reproductive Treatment Act 1988 was subsequently amended to include these provisions regarding infertility.[49] An attempt in May 2012 to amend the act and allow fertile women access to ART passed the upper house by 12 votes to 9 though failed in the lower house.

South Australia is also 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.[50] The act 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.[51] An amendment introduced by Labor MP Ian Hunter which would have allowed anyone in a same-sex relationship access to surrogacy was rejected when the law was drafted in 2008.[52] Previously the Family Relationships Act 1975[53] made all surrogacy arrangements in the state illegal. The Statutes Amendment (Surrogacy) Act 2009 revised the Family Relationships Act by legalising altruistic surrogacy for married and de facto opposite-sex couples. The ban on commercial surrogacy remained.[54]

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) and surrogacy laws in South Australia, recommending equal access to ART services and altruistic surrogacy for same-sex couples and single women.[39] The government subsequently introduced the Relationships Registry Bill 2016 in September 2016, a bill which created a relationship registry for same-sex couples in the state and allowed equal access to surrogacy and ART services for same-sex couples and single people.[55]

On 15 November 2016, the House of Assembly (lower house) split the aforementioned bill and introduced the Statutes Amendment (Surrogacy Eligibility) Bill 2016, a bill which dealt exclusively with surrogacy and assisted reproductive treatments. The bill amends several other acts so as to allow same-sex couples access to altruistic surrogacy arrangements and ensure fertile women and same-sex couples have access to assisted reproductive technology and are not discriminated against by clinics. During debate on the bill continued on 16 November, at which point the lower house removed provisions in the bill allowing single people access to altruistic surrogacy arrangements.[56] The following day the bill passed the lower house by 25 votes to 16.[57] The bill now proceeds to the Legislative Council.

Recognition of lesbian parents

In 2010 the Family Relationships (Parentage) Amendment Act 2010[58] 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.[59] The bill was subsequently given Royal Assent and became law on 23 June 2011, commencing on 15 December 2011.[60][61][62]

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.[63][64] 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).[65]

Discrimination protections

History

South Australia's Equal Opportunity Act 1984[66] bans unfair treatment of citizens due to sexuality, amongst a host of other aspects of public life.[67] South Australia introduced new laws in 2009 to remove or reduce, former exceptions to the law with respect to sexuality discrimination.[68] The Act also protects transgender and intersex South Australians, classifying such protections under a 'Chosen Gender' section.[69]

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.[70]

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.[71][72] 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.[73] The government has stated it would review the law following the completion of an ongoing (as of November 2016) murder trial involving an individual seeking to employ the provocation defence.[74]

2015-16 reforms

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.[75] 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.[76]

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.[77] 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.[78]

Recognition of gender identity

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.[79] 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.[79][80]

A revised version of the bill was reintroduced into the lower house on 2 November 2016. The revised bill, titled the Births, Deaths and Marriages Registration (Gender Identity) Amendment Bill 2016, was almost identical to the one defeated in September, except for the fact it increased the age a minor would require judicial approval for registering a change of sex or gender identity to 18 (where previously it was 16) and also mandated that the state Registry would be required to retain on file all historical information preceding a change of sex or gender identity.[81] The bill was debated in the lower house on 16 November 2016 and passed, though an amendment was carried increasing the time required for individuals to undergo counselling before receiving an updated birth certificate.[82] The bill now proceeds to the Legislative Council.

Summary table

Same-sex sexual activity legal (since 1975 for men; always for women)
Equal age of consent (since 1975)
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)
Domestic partnerships
Relationships register (Bill pending in upper house)
Recognition of marriages/unions entered into in other jurisdictions (Bill pending in upper house)
Step adoption by same-sex couples (Bill pending in upper house)
Joint adoption by same-sex couples (Bill pending in upper house)
Automatic IVF/artificial insemination parenthood for female partners
Access to IVF for lesbians and surrogacy for gay male couples (Bill pending in upper house)
Same-sex marriages (federal jurisdiction)
MSMs allowed to donate blood (one year deferral - Australia-wide)

See also

Notes

  1. "Buggery" was the British term for anal sex, while gross indecency referred to other homosexual behaviour where anal sex could not be proven, such as oral sex and mutual masturbation.[1]

References

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External links

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