LGBT rights in Australia

LGBT rights in Australia

The recognition and rights of LGBT couples and individuals in Australia have gradually been increasing within the states and territories since the 1970s. Laws regarding sexual activity apply equally to same-sex and heterosexual activity in all Australian states and territories. Every state and territory, as well as many local governments or councils, will formally recognise both opposite-sex and same-sex relationships in some manner. The ACT joined Tasmania in recognizing same-sex unions formally in May 2008, followed in December by Victoria. Same-sex couples legally allowed to adopt other people's children in Western Australia, and the ACT, and may adopt his or her partner's stepchild in Victoria and Tasmania. It is not allowed in the other states and territories.

At the federal or Commonwealth level, progress has moved much more slowly. Between 1996 and 2007, the Liberal Government under Prime Minister John Howard made constant attempts to prevent states and territories from recognising same-sex couples, and halted efforts to amend nearly 60 pieces of legislation which recognise opposite sex couples explicitly. In 2004, same-sex marriage became officially prohibited at the federal level after the "Marriage Act 1961" was amended by the "Marriage Legislation Amendment Bill".

As of 2008, same-sex couples do not receive the same level of recognition as opposite-sex couples in 100 federal law statutes which utilise the phrase 'member of the opposite sex'.cite web |title=Entsch to hand PM gay rights petition |date=2007-08-08 |publisher=National Nine News |url= |accessdate=2008-09-03] cite web|title=PM to review same-sex couples' rights |author=Karvelas, Patricia |date=2007-03-02 |publisher=The Daily Telegraph |url=,22049,21310074-5005941,00.html |accessdate=2007-09-03] However in May 2008, following the election of Kevin Rudd and the Labor government, legislation was introduced into Parliament to begin altering these laws which will provide equality in tax, health, superannuation, aged care and other areas.cite web |title=Law reforms for gay couples |date=2008-04-30 |publisher=The Age |url= |accessdate=2008-04-30]

LGBT history and activism

History of Australian gay rights

Australia's early years

Early laws in Australia were based on then-current laws in England, which were inherited upon colonisation in 1788. Lesbianism was never illegal in England nor its colonies, including Australia. Sodomy laws, however, were part of Australian law, from 1788 through to 1994 under "Human Rights (Sexual Conduct Act 1994". The punishment for "buggery" (sodomy) was reduced from execution to life in prison in 1899. [ The Development Of Homosexuality ] ]

In 1951, the New South Wales Crimes Act was amended to ensure that "buggery" remained a criminal act "with or without the consent of the person", removing legal loophole of consent.

The gay rights movement

Gay and Lesbian Rights Movement groups were not organised in Australia until the late 1960s. An Australian arm of the Daughters of Bilitis, which formed in 1969 in Melbourne, is considered Australia's first gay rights organisation.Fact|date=August 2007

The Campaign Against Moral Persecution, AKA C.A.M.P., was founded in Sydney in September 1970. C.A.M.P. raised the profile and acceptance of Australia's gay and lesbian communities. Soonafter, the Melbourne-based gay rights organisation Society Five was formed in 1971. [cite book |last=Kaplan |first=Gisela |authorlink= |coauthors= |title=The Meagre Harvest: The Australian Women's Movement 1950s-1990s |publisher=St Leonards |year=1996 |location= |pages=pg. 93 |url= |doi= |id= |isbn=]

Additional rights organizations followed, including The Gay Teachers Group, and The Homosexual Law Reform Coalition, gay rights organisations which started in the late 1970s.Fact|date=August 2007

In 1972, the Dunstan Labor government introduced a "consenting adults in private" type defence in South Australia. This defence was later introduced as a bill by Murray Hill, father of former Defence Minister Robert Hill, In 1975, South Australia became the first state or territory to legalize sexual conduct between males.

Other states and territories repealed their laws between 1976 and 1990. The exception was Tasmania, which retained its laws until the Federal Government and the United Nations Human Rights Committee forced their repeal in 1997.

An estimated 500 people marched down George Street to a rally in Martin Plaza in Sydney on June 24, 1978 as a protest march and commemoration of the Stonewall Riots.Fact|date=January 2008 Organisers said the march and rally were part of “international homosexual solidarity day” to demonstrate against sexual repression in Australia and other countries. [cite web |title=Original report - 500 march in city | |url=,23599,23257207-5016087,00.html |accessdate=2008-02-22] The event recurred annually, becoming the Sydney Gay and Lesbian Mardi Gras which celebrated its 30th anniversary in 2008.

In 1984, the Australian Medical Association removed homosexuality from its list of illnesses and disorders.

The last gay man was arrested on 14 December 1984 in Hobart, Tasmania when he was found having sexual conduct with another man on the side of the road in a car. He was sentenced to eight months jail. He later committed suicide.Fact|date=March 2008

In 1985, after consistent pressure from Gay and Lesbian Immigration Task Force (GLITF), changes were made to the "Migration Act 1958 (Cth)" allowing Australian Citizens and Permanent Residents to sponsor their same-sex partners to Australia through a new Interdependency Visa.

In 1994, the Commonwealth passed the "Human Rights (Sexual Conduct) Act 1994 - Section 4"cite web |title=Human Rights (Sexual Conduct) Act 1994 - Sect 4 |publisher=Commonwealth Consolidated Acts |url= |accessdate=2007-09-03] , legalizing sexual activity between consenting adults (in private) throughout Australia. It wasn't until 1997 however when the law in Tasmania prohibiting homosexual sex was overturned in the courts that homosexual activity became legal formally in all Australian states and territories.

The John Howard Years

Between 1996 and 2007, during John Howard's term as Prime Minister, many attempts were made to reduce recognition of same-sex couples in federal legislation, as well as to thwart attempts by individual states to recognise unions of same-sex couples. Since the beginning of his term as Prime Minister, Howard has made his position clear on the gay rights issue. In January 1997, Howard refused to offer a message of support to Sydney Gay & Lesbian Mardi Gras and tells "A Current Affair" (T.V. Program) that he would be "disappointed" if one of his children were to tell him they were gay or lesbian. In August 2001 when asked in a "Triple J" (Australian radio station) interview where he placed himself on a scale of acceptance of homosexuality, one end being total acceptance and the other total rejection, Howard replied, "Oh I'd place myself somewhere in the middle. I certainly don't think you should give the same status to homosexual liaisons as you give to marriage, I don't."

In July 1996 the Howard Government reduced the number of interdependency visas, making migration for same sex couples more difficult.

The UN Human Rights Commission declared Australia’s Federal Government in violation of equality and privacy rights under the International Covenant of Civil and Political Rights in September 2003 after denying a man a defacto spouse veteran’s pension based on his 38 year same sex relationship. The request from the UN that Australia take steps to treat same sex couples equally was ignored. When directly questioned, Attorney General Philip Ruddock said that the government is not bound by the ruling.

In March 2004, Howard condemned Australia's first laws which would allow gay couples to adopt children in the ACT as part of a new ACT Bill of Rights. Howard said, "I think the idea of the ACT having a bill of rights is ridiculous. I'm against gay adoption, just as I'm against gay marriage." [cite web |title=Howard attacks ACT gay adoption law |date=2004-03-08 |publisher=Sydney Morning Herald |url= |accessdate=2008-05-28] The commonwealth, however, did not overturn the legislation.

On May 27, 2004, approximately two months after the UK proposed its "Civil Partnership Act 2004", federal Attorney-General Philip Ruddock introduced the "Marriage Legislation Amendment Bill" to prevent any possible court rulings allowing same-sex marriages or civil unions. [cite web |title=Marriage Amendment Bill 2004 |date=2004-06-24 |publisher=Parliament of Australia |url=;SEQ_NUM:0; |accessdate=2008-05-26] In August 2004, same-sex marriage was officially prohibited when the Marriage Act 1961 and the Family Law Act were amended in order to define marriage as a "union of a man and a woman to the exclusion of all others, voluntarily entered into for life". Amendments were also made to prevent the recognition in Australia of marriages conducted in other countries between a man and another man or a woman and another woman.

In March 2006, after the ACT government announced plans to create civil unions within the territory, the federal government vowed to block it. [cite web |author=Hacker, Peter |title=Australian Federal Gov't Moves To Block Civil Union Bid | |date=2006-03-29 |url= |accessdate=2008-05-23 ] Following the public outcry over Howard's move to kill the ACT bill, in April the Human Rights and Equal Opportunity Commission (HREOC) began a six month inquiry to hear from Australians about the federal government's treatment of gays.cite web |title=Australian Gay Marriage Treatment Like Apartheid Inquiry Told | |date=2006-10-11 |url= |accessdate=2008-05-23 ] The Howard Government banned its departments from making submissions to the inquiry into financial discrimination experienced by same-sex couples. [cite web |title=Howard Bans Submissions to HREOC |publisher=Sydney Star Observer |url= |accessdate=2006-06-29]

In May 2006, Attorney General Philip Ruddock blocked a gay Australian man from marrying in Europe. Ruddock refused to grant a gay man living in the Netherlands a 'Certificate of No Impediment to Marriage' document required by some European countries before marriage, to prove foreigners are in fact single. Under Ruddock's instructions, no such documents were to be released to gay and lesbians individuals intending to marry overseascite web |title=Govt defends block to same sex marriage (January 18, 2006 - 9:29 a.m.) |publisher=The Age |url= |accessdate=2007-09-03] . Following a request for the certificate the following statement was received:

In June, the ACT's civil union legislation was passed then disallowed by the Governor General. A second attempt to offer civil unions for same-sex couples in 2007 was again disallowed. The Governor General only disallowed the ACT legislation after being advised by the Executive Cabinet, although under the Constitution, the GG was not obliged to follow the advice of the Executive Cabinet. Plans were also made to introduce a federal bill preventing same-sex couples from adopting, but was dropped after the 2007 elections.

Despite the reluctance of the federal government, individual states and territories were continuing to make inroads. Since 2001, Victoria has amended 60 Acts to include same-sex couples. In 2002, Western Australia removed all remaining legislative discrimination toward sexual orientation (including adoption) by adding the new definition of "de facto partner", and Queensland created a new, non-discriminatory definition of "de facto partner" within 61 pieces of legislation. In 2003, Tasmania become the first state to create a relationship registry for same sex couples, giving same-sex couples nearly equal rights to married couples, excluding adoption. In 2004, the Northern Territory removed legislative discrimination against same-sex couples in most areas of territory law, and the ACT began allowing same-sex couples to adopt. In 2005, the city of Sydney, in New South Wales, created a Relationship Declaration Program offering limited legal recognition for same-sex couples. In 2006, South Australia, the last state to recognize same-sex couples, amended 97 Acts, dispensing with the term "de facto" and categorising couples as "domestic partners". The city of Melbourne, in Victoria, provided a "Relationship Declaration Register" for all relationships and carers starting in 2007, which was followed in December with Victoria introducing a statewide registry and amending 69 pieces of legislation to include couples who are in registered relationships.

Change in public opinion, leadership and policy

In June 2007, the results of a "Galaxy" poll commissioned by advocacy group "GetUp!" were released. The poll measured opinions of 1100 Australians aged 16 and over. [cite web |title=Majority support same-sex marriage - poll | |url=,23599,21942737-5007133,00.html |accessdate=2007-06-21]

* 71% of respondents agreed that same-sex partners should have the same legal rights as de-facto heterosexual couples.

* 57% of respondents supported same-sex marriage. The poll suggests a 20-point jump in support since 2004, when "Newspoll" found 38% in favour and 44% against. [cite web |title=Public backs gay unions, equality |publisher=The Age |url= |accessdate=2007-06-21]

In November 2007, the Liberal/National Coalition, led by John Howard, lost to the Australian Labor Party in the 2007 national federal election. Penny Wong (Labor) became the first openly gay member of a ministry. The Labor Government, led by Prime Minister Kevin Rudd, openly supported rights for same-sex couples, but not same-sex marriage. Liberal leader Brendon Nelson said he supported equal economic and social rights for gay couples, but not marriage, adoption or IVF. [cite web |title=Gay couples deserve 'equal treatment' |publisher=The Australian |url=,25197,22856750-601,00.html |accessdate=2008-05-01]

In 2008, federal Attorney-General Robert McClelland announced that they had gone beyond the 58 pieces of disciminatory legislation found by a recent HREOC inquiry, and that legislation to remove inequalities in 100 areas of the law would be introduced, giving gay couples the same treatment as heterosexual de facto couples, with areas like social security and veterans affairs to be completed by mid-2009.

Attempts in the ACT to offer civil unions for same-sex couples were attempted again under the new Labor federal government in 2008, but were again threatened to be disallowed. However, the federal government has stated that it is willing to accept state-based relationship registers so long as they don't mimic marriage by allowing a ceremony. In May, the ACT settled for creating a relationship registry similar to Tasmania and Victoria.

In April 2008, an informal readers poll in the online edition of The Age resulted in 79% of 2085 respondents saying that gay couples should be allowed to marry. [cite web |title=Previous poll results |date=2008-04-30 | |url= |accessdate=2008-08-11]

In May 2008, a survey of 15,000 women aged 20 and above by the "Australian Women's Weekly" found that more than 70% said same-sex couples should have the same rights as heterosexual couples. This is consistent with the nationwide "Galaxy" poll results from June 2007. [cite web |title=Women think gay rights OK, migrants not |date=2008-05-28 | |url=,23599,23772342-2,00.html |accessdate=2008-05-29]

New South Wales has proposed amending 50 pieces of state legislation in 2008 so that de facto and same-sex couples will be treated as married couples, with the exception of adoption and surrogacy, but will not create a statewide relationships register.

Current Australian activist groups

* National Australian Coalition for Equality
* National [ Australian Marriage Equality]
* National [ Gay and lesbian immigration task force]
* New South Wales [ The Gay and Lesbian Rights Lobby]
* New South Wales Community Action Against Homophobia
* Queensland [ Action Reform Change Queensland (ARCQ)]
* South Australia [ Lets Get Equal]
* Tasmania [ Tasmanian Gay and Lesbian Rights Group]
* Victoria [ The Victorian Gay and Lesbian Rights Lobby]
* Western Australia [ Gay and Lesbian Equality]
* Western Australia [ Pride Western Australia]

Anti-discrimination and legal recognition

Commonwealth level

Federal (Commonwealth) laws do not allow same-sex couples to legally marry and same-sex couples are not legally recognised in federal legislation.

Australia does not outlaw discrimination based on sexual orientation at the federal level. However, in response to Australia's obligation to implement the principle of non-discrimination in employment and occupation pursuant to the International Labour Organisation Convention No.111 (ILO 111), the "Human Rights and Equal Opportunity Commission (HREOC) Act" established the HREOC in 1986, and empowers it to investigate complaints of discrimination in employment and occupation on various grounds, including sexual preference, and to resolve such complaints by conciliation. If it cannot be conciliated, the Commission prepares a report to the federal Attorney-General who then tables the report in Parliament. It is important to note that such discrimination is not rendered unlawful under the Act.

The "Human Rights (Sexual Conduct) Act 1994" provided that sexual conduct involving only consenting adults (18 years or over) acting in private would not be subject to arbitrary interference by law enforcement. This applies to any law of the Commonwealth, State or Territory. [cite web |title=Human Rights (Sexual Conduct) Act 1994 |publisher=Austlii |url= |accessdate=2008-05-01]

As of 2007, The Commonwealth Government does not provide protections for "sexual orientation and gender identity" as yet in the "Human Rights Commission Act 1981" (Commonwealth legislation). [cite web |title=Human Rights Commission Act 1981 |publisher=Austlii |url= |accessdate=2008-05-01]

Immigration and sponsorship

In 1985, changes were made to the "Migration Act 1958 (Cth)" due to pressure from the Gay and Lesbian Immigration Task Force (GLITF). An interdependency visa was specifically created for same-sex couples, allowing Australian Citizens and Permanent Residents to sponsor their same-sex partners to Australia. Unlike married couples, de facto and interdepentdent partners must be able to prove a twelve month committed relationship. The temporary and permanent visas (Subclasses 310 and 110) allow the applicant to live, work, study and receive Medicare benefits in Australia. [cite web |title=Interdependency Visa: Offshore Temporary and Permanent (Subclasses 310 and 110) |publisher=Department of Immigraion and Citizenship |url= |accessdate=2008-05-01]
* [ Interdependency Visa: Offshore Temporary and Permanent (Subclasses 310 and 110)]

Military service

In 1992, the Australian Defence Force (ADF) ended its prohibition on openly gay or lesbian members serving in the military. The ADF also recognizes "interdependent relationships", which include same-sex relationships, regarding benefits available to active duty members. This means equal benefits in housing, moving stipends, education assistance and leave entitlements. The ADF will acknowledge personnel’s same-sex partnerships as "interdependent relationships." These benefits apply only to ADF members who are involved in interdependent relationships with a same-sex partner. To be recognised as interdependent, same-sex partners will have to show they have a "close personal relationship" that involves domestic and financial support.cite web |title=Extension of ADF conditions of service to ADF members in recognised interdependent relationships (bulletin, 2005-10-21)|publisher=Navy People Online |url= |accessdate=2007-09-03Dead link|date=September 2008] Dead link|date=September 2008

Civil union proposals

After the United Kingdom began allowing same-sex civil partnerships in December 2005, Prime Minister John Howard said he would be opposed to legislation granting similar civil unions in Australia.

In 2006 the government of the ACT, led by Chief Minister Jon Stanhope, legislated for same-sex civil unions within the ACT. The legislation was overturned by the federal government with Philip Ruddock saying Stanhope was deliberately baiting them. Ruddock received criticism from the Greens party, but claimed that the ACT's policy was not for civil unions but for marriage which was legally defined within the "The Marriage Legislation Amendment Bill".

In Australia, civil celebrants conduct commitment ceremonies so that gay and lesbian couples can participate in a ceremony to acknowledge their love and partnership. The federal government however has introduced a registration system whereby prospective celebrants must undergo Government-approved, accredited training and meet specific criteria set by the Attorney-General's Department to be declared a "fit and proper person" to hold the office of "marriage celebrant". Under the new rules a registered celebrant is not permitted to conduct legally binding commitment ceremonies for same-sex couples, although they may conduct non-legally binding ceremonies as long as both the couple and those attending are under no illusion that the ceremony is a legal marriage. [cite web |title=Getting Married |publisher=Attorney-General's Department |url= |accessdate=2008-05-01]

National Relationships Register

In 2007, Prime Minister Kevin Rudd said that the Government wanted to ensure same-sex couples had non-discriminatory access to tax, social security and inheritance entitlements, via nationally consistent laws and registers of relationships. [cite web |title=No Labor plans to allow gay marriage |publisher=The Australian |url=,25197,22934559-5013871,00.html |accessdate=2008-05-01] In December 2007, Prime Minister Kevin Rudd stated that the Government would be working on a national relationship register, similar to the one in Tasmania, which would officially record an existing same-sex relationship. Neither Rudd nor the Labor Party endorse the more controversial step of approving same-sex marriage or civil unions. [cite web |title=National register for gay couples, says Kevin Rudd | |url=,23599,22932717-2,00.html |accessdate=2008-05-01]

HREOC inquiry and reforms

Following threats of disallowance of the proposed ACT civil unions legislation and subsequent complaints of discriminatory treatment, a national inquiry was launched by the Human Rights and Equal Opportunity Commission (HREOC) in April 2006, which investigated financial and work-related discrimination toward same-sex relationships. On 21 June 2007, the HREOC released its '"Same-Sex: Same Entitlements"' report. The Commission identified 58 Commonwealth law statutes and provisions that explicitly discriminate against same-sex couples and, in some cases, their children, by using the term 'member of the opposite sex'.
* [ HREOC Same-Sex: Same Entitlements, Final Report (2007)]

In February 2008, Attorney-General Robert McClelland said that his department had gone beyond the "HREOC 58", identifying a total of 100 laws that discriminate against same-sex couples and hoped to see some kind of action by the middle of the year. Human Rights Commissioner Graeme Innes had previously stated that he was "very hopeful" that the HREOC 58 would be fixed by the end of 2008 – if the community kept up the public pressure. [cite web |title=Feds find 100 laws to fix |publisher=bnews - Melbourne Star |url= |accessdate=2008-02-29]

On 16 April 2008, the Rudd government was considering delaying the reforms (an estimated AUD$400million over 4 years) until 2009. This estimate fell considerably short of the projected AUD$1billion the Howard government believed the law reform would cost. [cite web |title=Hurdle for gay reforms |publisher=The Australian |url=,25197,23547137-5013871,00.html |accessdate=2008-05-01] [cite web |title=Australia may delay gay equality proposals |publisher=Pink News |url= |accessdate=2008-05-01] However two weeks later on 30 April 2008, federal Attorney-General, Robert McClelland, announced that legislation to remove inequalities in 100 areas of the law would be introduced when Parliament resumes in May for the winter sittings. The proposed legislation would afford gay couples the same treatment as heterosexual de facto couples, with a delayed implementation in areas like social security and veterans affairs to be completed by mid-2009. Other areas to be reformed included health, aged care, veterans' entitlements, workers' compensation, employment and entitlements. All the changes would be operational by the middle of 2009; most will begin as soon as legislation is passed.

The superannuation bill was expected to pass the Senate before July 1, [cite web |title=Matching Rights for Gay Couples |publisher=Sydney Morning Herald |url= |accessdate=2008-05-01] [cite web |title=Gay group welcomes equal rights move |publisher=Herald Sun |url=,21985,23621341-5005961,00.html |accessdate=2008-05-01] however the Coalition established an inquiry to look at whether the reforms should include people in other forms of interdependent relationships. [cite web |author=Schubert, Misha |date=2008-06-02 |title=Coalition set to stall same-sex reform |publisher=The Age |url= |accessdate=2008-06-02] Several conservative MPs moved to stop the plan, warning that replacing the terms "husband and wife" with "partner" could undermine the traditional role of marriage. [cite web |author=Schubert, Misha |date=2008-06-04 |title=Coalition delays same-sex couple laws |publisher=The Age |url= |accessdate=2008-06-04] Liberal MP Stuart Robert warned that by replacing references to a "marital relationship" with a "couple relationship" in the super laws, it may "slowly chip away at the institution of marriage". He also opposed moves in the bill to give inheritance rights to the children of a non-biological gay parent. [cite web |author=Schubert, Misha |date=2008-06-05 |title=Gay couples face long wait for equal rights |publisher=The Age |url= |accessdate=2008-06-05] The coalition has used its Senate majority to delay legislation removing same-sex discrimination from commonwealth laws until the end of September. [cite web |date=2008-06-18 |title=Coalition delay same-sex legislation |publisher=The Age |url= |accessdate=2008-06-19]

A federal bill to amend the "Family Law Act" to provide heterosexual and same-sex de facto couples access to the Family Court on property and financial matters was referred to a Senate committee in June. In late August, the committee recommended passing the bill and urged the Government to give legal recognition to the non-biological parent in a same-sex relationship as part of the amendments. [cite web |date=2008-09-02 |author=Nader, Carol |title=Same-sex parenting rights push |publisher=The Age |url= |accessdate=2008-09-02]

* Pending Legislation: [;adv=yes;db=;group=;holdingType=;id=;orderBy=priority,title;page=4;query=Dataset%3AbillsCurBef;querytype=;rec=13;resCount= Same-Sex Relationships (Equal Treatment in Commonwealth Laws General Law Reform) Bill 2008]
* Pending Legislation: [—Superannuation)%20Bill%202008 Same-Sex Relationships (Equal Treatment in Commonwealth Laws – Superannuation) Bill 2008]
* Pending Legislation: [ Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008]
* Pending Legislation: [;adv=yes;db=;group=;holdingType=;id=;orderBy=priority,title;page=1;query=Dataset%3AbillsCurBef;querytype=;rec=10;resCount= Evidence Amendment Bill 2008]
* Pending Legislation: [;adv=yes;db=;group=;holdingType=;id=;orderBy=customrank;page=0;query=Id:%22legislation/billhome/r3085%22;querytype=;rec=0;resCount=Default Families, Housing, Community Services and Indigenous Affairs and Other Legislation Amendment (Further 2008 Budget and Other Measures) Bill 2008]

Social Security Act 1991

Centrelink, a federal agency which handles the disbursement of social security and welfare, follows Commonwealth law and does not recognize same-sex relationships, although they will honor all other cohabitating opposite-sex/de facto relationships. While this reduces the amount of government benefits for same-sex couples, this does allow the non-working partner to claim benefits as a single person, such as single parenting payments. With the federal reforms announced in April 2008, Centrelink is expected to recognise same-sex couples and consider the total income of the household by mid-2009. [cite web |title=Equality may lead to cut in payments |publisher=The Age |url= |accessdate=2008-05-01] [cite web |title='Winners and losers' in new gay laws |publisher=The Australian |url=,25197,23621817-2702,00.html |accessdate=2008-05-01]

Inheritance and property rights

Without the automatic legal protections that married couples receive under the law with regard to inheriting assets from their partners, same sex couples have had to take specific legal actions. Individuals are not entitled to a partial pension if their same-sex partner dies. Gay and de facto couples who separate do not have the same property rights as married couples under federal law and must use state courts, rather than the Family Court, to resolve disputes. The plan to grant equivalent rights to gays and de factos has been up for discussion since 2002, and all states eventually agreed, but the change was blocked because the Howard government insisted on excluding gay couples. [cite web |title=Push for equal gay and de facto couples' rights |publisher=The Australian |url=,25197,23000269-5013945,00.html |accessdate=2008-05-01]

With the increased legal recognition of domestic partnerships, this situation is changing. For example, superannuation (tax-incentivised retirement funds) legislation recognised "interdependent relationships", which included same-sex relationships.Fact|date=August 2007 The announced changes to 100 pieces of federal legislation in 2008 would allow individuals to be entitled to a partial pension if their same-sex partner dies. [cite web |title=Judge against anti-gay message | |url=,23599,23615092-29277,00.html |accessdate=2008-05-01] Gay and de facto couples who separate are expected to win the same property rights as married couples under federal law. The changes would allow them to resolve disputes in the Family Court rather than state courts. Family Court would also adjudicate on the division of assets, including superannuation.

In June 2008, The Rudd Government introduced the "Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008" to allow same-sex de facto couples access to the federal Family Court on property and maintenance matters, rather than the more expensive state Supreme Court. The reforms are not part of the 100 equality measures promised by the Government but stem from a 2002 agreement between the states and territories that the previous Howard Government did not fulfill. [cite web |title=Family Court Changes Afoot |author=Dennett, Harley |date=2008-06-26 |publisher=SSOnet |url= |accessdate=2008-07-01]

State and territory level

At state and territory levels, there is some form of recognition for same-sex couples, mainly through being considered in "de facto" relationships. De facto couples, for example in the ACT, South Australia, Tasmania and soon Victoria, have access to many spousal rights and can easily prove that a relationship exists through a registry or agreement. However in New South Wales, Western Australia, Northern Territory and Queensland, same-sex and de facto couples often must go to court to prove a relationship exists. The inability of same sex couples to have conclusive evidence of their relationships can make it difficult for them to access rights accorded to them under the law. In November 2007, with the Labor party winning a large number of seats in all levels of government, debate about civil partnership(s) was re-introduced. [cite web |title=New Push To Legalize Gay Unions In Australia | |url= |accessdate=2008-05-01] [cite web |title=It's Howard's fault: Costello |publisher=Brisbane Times |url= |accessdate=2008-05-01] [cite web |title=Gay unions won't be blocked under Labor | |url= |accessdate=2008-05-01]

All states and territories of Australia (except for Queensland), have age of consent legislation that applies equally regardless whether the participants are male or female, same-sex or opposite-sex. Queensland's age of consent is 16, however it still has a "sodomy law" in their statutes dating back to 1990, punishing anal sex involving any person under 18 with up to 14 years in prison. [cite web |title=Age Of Consent & Sodomy Law awareness in Queensland Australia - need for urgent action |publisher=Queer Radio |url= |accessdate=2008-04-04]
legend|#FF0000|State same-sex marriage ban


The "Substitute Parent Agreements Act 1994" made non-commercial surrogacy legal but the birth mother and her husband were deemed to be the parents unless the genetic parents adopt the child back. In 2000, The ACT became the first state or territory to allow the genetic (heterosexual)parents of a child born through surrogacy to become its legal parents, allowing them to easily obtain a parenting order and avoid adoption. [cite web |title=ACT approves surrogacy bill |publisher=ABC |url= |accessdate=2008-05-14] It is illegal to advertise for a surrogate and to pay for a surrogate or an ovum donor.

When two women are in a same-sex relationship, and one of them gives birth as a result of ART, her partner is presumed to be a parent of the child. The ACT’s birth registration process allows for a person to be registered as a ‘mother’, ‘father’ or ‘parent’, enabling lesbian couples to be recognised as parents on a child’s birth documents.

New South Wales

The "Artificial Conception Act 1984 (NSW)" gave children conceived via artificial insemination the same status as children conceived naturally; in other words, the birth mother and her husband were deemed to be the legal parents. This was later repealed and updated with the "Status of Children Act 1996 (NSW)" which said the same thing, but accounted for a donated ova.

Prior to 2007, there were no laws in place to deal with surrogacy in the state. This changed with the "Assisted Reproductive Technology Act 2007" which declared commercial surrogacy to be illegal and all surrogacy contracts to be void. [cite web |title=Assisted Reproductive Technology Act 2007 |publisher=Austlii |url= |accessdate=2008-05-14] The bill reiterated previous legislation, declaring that the birth mother and her husband are lawfully deemed to be the legal parents. [cite web |title=Legislation around Australia - Reproductive Technology |publisher=Department of Human Services |url= |accessdate=2008-05-14]

Socially-infertile women (lesbians) are permitted access to IVF treatment in New South Wales. Medicare funding, however, requires the couple to be medically infertile, which makes it only available to heterosexual couples because of an assumption that the man is medically infertile. A lesbian couple would not have a medical condition that makes the couple infertile. [cite web |title=No Medicare for lesbians' IVF |publisher=The Age |url= |accessdate=2008-05-14] There has beencontroversy with a clause in the "Assisted Reproductive Technology Act 2007" that allows donors to nominate classes of people to whom their sperm or eggs may not be given, allowing for discrimination against ethnic, religious and other minorities, including same-sex couples. [cite web |title=Donor can ban Muslims, lesbians | |url=,22049,22832709-5006009,00.html?id=#vote-now-form |accessdate=2008-05-14]

On 4 June 2008, the New South Wales Parliament passed the "Miscellaneous Acts Amendment (Same Sex Relationships) Bill 2008" which recognises co-mothers as legal parents of children born through donor insemination, provides birth certificates allowing both mums to be recognised, Adoption and surrogacy parenting reforms were not included. The bill passed with a vote of 64-11.

Northern Territory

The Northern Territory was the second jurisdiction to extend a presumption of parentage to lesbian partners in 2003 with its "Status of Children Act 2003", following Western Australia's lead in 2002. [cite web |url= |title=One state, one mother |accessdate=2008-06-03 |author=Millbank, Jenni |date=2008-04-02 |publisher=SX News] [cite web |url=,parentage#5DA.%20Rule%20relating%20to%20parentage%20 |title=Status of Children Act |accessdate=2008-06-03 |date=2004-03-17 |publisher=NT Department of Justice]


The "Surrogate Parenthood Act 1988", which commenced on 6 October 1988, prohibits all forms of surrogacy, formal and informal, paid and altruistic. All surrogacy contracts are void and entering into an agreement (or offering to do so), as well as giving or receiving payment are prohibited. Any advertising in relation to surrogacy is also prohibited. [cite web |url= |title=Surrogate Parenthood Act 1988 |accessdate=2008-06-04 |publisher=Austlii]

In May 2008, a parliamentary committee was formed to examine whether to decriminalise altruistic surrogacy in Queensland. Commercial surrogacy has already been ruled out. [cite web |url=,23599,23656433-421,00.html |title=Surrogacy laws driving couples interstate |accessdate=2008-06-04 |author=Odgers, Rosemary |date=2008-05-07 | ] [cite web |url= |title=Surrogacy ban under review |accessdate=2008-06-04 |author= |date=2008-05-07 |publisher=Queensland Pride] The Queensland Parliamentary report recommended legalising surrogacy as a last resort. People must meet several criteria, including being medically infertile or unable to carry a child. And that could include men. [cite web |url= |title=Queensland could allow surrogacy |accessdate=2008-10-10 |author= Annie Guest |date=2008-10-09 |publisher=ABC Australia]

Socially-infertile women (lesbians) are permitted access to IVF treatment in Queensland.
* [ Queensland Parliament Investigation into Altruistic Surrogacy] Public submissions closed 13 June 2008.

South Australia

The "Family Relationships Act 1975 (SA)" made surrogacy illegal and surrogacy contracts void. It also states that a woman who gives birth to a child is the mother of the child, regardless of genetics. The Act does not include a provision for parentage applying to same-sex couples. [ [ Family Relationships Act 1975] ]

The "Statutes Amendment (Surrogacy) Bill 2008" which legalised gestational surrogacy for heterosexual couples was passed by the Parliament of South Australia on 18 June 2008. However an amendment introduced by Labor MP Ian Hunter that would have allowed anyone in a same sex relationship access to gestational surrogacy was rejected. [cite web |url=,22606,23887612-5006301,00.html |title=Gay couples lose surrogacy access |accessdate=2008-06-19 |author=Vaughan, Joanna |date=2008-06-19 |publisher=Adelaide Now...]

The "Reproductive Technology (Clinical Practices) Act 1988 (SA)" states that artificial fertilisation procedures are only for the benefit of married couples (husband and/or wife) 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 (Cth)". Lesbian women who are single or in a relationship currently have access to IVF treatment, but they must be considered to be "medically infertile".


The "Status of Children Act 1974" states that the woman who gives birth to the child is the mother, regardless of genetics. The Act makes no mention of same-sex couples, however a report by the Joint Standing Committee on Community Development proposed amending the Act to recognise the lesbian partner as a parent via the "Relationships (Consequential Amendments) Bill 2003" but it failed to pass. [cite web |url= |title=Report on Amendments to the Relationships Bill 2003 |accessdate=2008-06-04 |publisher=Joint Standing Committee on Community Development|format=PDF]

The "Surrogacy Contracts Act 1993" made surrogacy illegal and surrogacy contracts void. [cite web |url= |title=Surrogacy Contracts Act 1993 |accessdate=2008-06-04 |year=1993 |publisher=Austlii] In April 2008, altruistic surrogacy in Tasmania began undergoing a parliamentary inquiry after the nation's Attorneys-General agreed to develop a uniform framework to allow conditional, non-commercial surrogacy. [cite web |url= |title=Mixed reactions to surrogacy proposals |accessdate=2008-06-04 |date=2008-04-02 |publisher=ABC News]
* [ Tasmania Legislative Council Select Committee – Surrogacy] Submissions closed 02 May 2008


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. [cite web |title=Lawlink NSW: 2. Current State of the Law |publisher=Lawlink NSW |url= |accessdate=2008-05-14] In addition, only women who were married or in de facto relationships with men were allowed access to treatment.

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 has opened the door for lesbian couples to use IVF procedures. [cite web |title=McBain v State of Victoria: Access to IVF for all Women |publisher=Parliamant of Australia |url= |accessdate=2008-05-14] [cite web |title=IVF decision brings charge of social experimentation |date=2000-07-28 |publisher=ABC News |url= |accessdate=2008-05-14]

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 recognized as parents to their partner's children. [cite web |title=Assisted Reproduction and Adoption, Final Report |publisher=Victorian Law Reform Commission |url= |accessdate=2008-05-14] 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. [cite web |title=Gays, singles may get more IVF help |author=Nader, Carol |date=2007-06-08 |publisher=The Age |url= |accessdate=2008-05-14] Birth certificates could use the word parent instead of mother and father. [cite web |title=Cabinet split looms on IVF |date=2007-06-08 |author=Gardiner, Ashley |coauthors=Whinnett, Ellen |publisher=Herald Sun |url=,21985,21868589-2862,00.html?from=public_rss |accessdate=2008-05-14]

* Law Reform Commission Report: [ Assisted Reproductive Technology (ART) and Adoption]

Victoria is expected to adopt almost all of the 130 recommendations of the Victorian Law Reform Commission in legislation which was introduced to Parliament in September 2008. [cite web |title=Who's your mummy? (December 15, 2007) |publisher=Melbourne Community Voice |url= |accessdate=2008-05-15] This will make IVF legal for all women (except sex offenders), and gives parents of surrogate children, including female same-sex partners, greater parenting rights. [cite web |title=Victorian IVF win for Lesbians | |url= |accessdate=2008-05-14] Altruistic surrogacy would become legal, while commercial surrogacy would remain illegal. The Government stopped short of allowing same-sex couples full adoption rights. [cite web |title=Victoria catches up on surrogacy and IVF law (December 15, 2007) |publisher=The Australian |url=,25197,22927378-23289,00.html |accessdate=2008-05-14] According to the draft bill, the surrogate mother will be presumed to be the mother of the child unless or until a substitute parentage order is made in favour of the commissioning parents.

The lower house voted 47-34 to support the contentious Assisted Reproductive Treatment Bill, which will now move to the upper house. All Coalition members voted against the Bill. [cite web |title= Lesbians celebrate fertility law victory |date=2008-10-10 |author=Best, Catherine |publisher=The Canberra Times |url= |accessdate=2008-10-10]

* Pending Legislation: [!OpenDocument Assisted Reproductive Treatment Bill 2008]

Western Australia

The "Human Reproductive Technology Act 1991 (WA)" established that in order to use any ART, a woman must be unable to conceive a child due to medical reasons (clinical infertility) and "persons seeking to be treated as a couple must be married or in a de facto relationship and must be of the opposite sex to each other". [cite web |title=Human Reproductive Technology Act 1991 (WA) |publisher=Austlii |url= |accessdate=2008-05-14]

In 2002, the "Artificial Conception Act 1985" was amended to deal with lesbian couples. It stated that, where a woman who is in a de facto relationship with another woman undergoes, with the consent of her de facto partner, an artificial fertilisationprocedure, the de facto partner of the pregnant woman is conclusively presumed to be a parent of the unborn child and is a parent of any child born as a result of the pregnancy. [cite web |title=Artificial Conception Act 1985 - Section 6a. Rule relating to parentage — same sex de facto relationships |publisher=Austlii |url= |accessdate=2008-05-14]

Western Australia’s Registry of Births, Deaths and Marriages allows forregistration of a parent other than a ‘mother’ and/or ‘father’ on the birth documents of the child. The birth registration form provides same-sex couples with the option of describing themselves as ‘mother’ and ‘parent’; ‘mother’ and ‘mother’; or ‘parent’ and ‘parent’. Provided proper consent has been given by both the woman and her same-sex partner, the partner will conclusively be presumed to be the parent of any resulting child.

Western Australia currently has no laws relating to surrogacy, however the "Surrogacy Bill 2007" would allow the practice in Western Australia. The bill was passed by the Legislative Assembly (Lower House) in September 2007, and has been referred to Standing Committee on Legislation within the Legislative Council (Upper House) in November 2007. It was sent back to the Legislative Council with amendments for a third reading in June 2008. [cite web |title=Surrogacy Bill 2007 |publisher=Parliament of Western Australia |url= |accessdate=2008-05-14]

* Pending legislation: [ Surrogacy Bill 2007]

Other areas of LGBT rights

The Australian Red Cross Blood Service bans blood donations from men who have had sex with men in the previous twelve months, as does the United Kingdom, Ireland, New Zealand and 48 states of the United States. No other countries or jurisdictions have such policies or have repealed them. The policy was challenged in 2005 and is still before the Tasmanian Anti-Discrimination Commission. The "final" hearing will be in August 2008.cite web |title=Gays test Red Cross blood ban, by Erin O'Dwyer (October 9, 2005) |publisher=The Sun Herald |url= |accessdate=2007-09-03] [cite web |title=Kissing Qualifies as Sex |date=2008-08-20 |publisher=Sydney Star Observer |url= |accessdate=2008-08-20]
* [ Red Cross Donation Policy]

Opposition groups

Political Groups

The Liberal Party of Australia is a socially conservative party, although it has a minority socially liberal wing. In recent years, under John Howard, it has moved to a more conservative policy agenda.

The Nationals is a socially conservative party, Opposes LGBT adoption, same-sex marriage, IVF, civil unions, The Nationals Party is opposed to most if not all legal rights for same-sex couples.

The Family First Party policies emphasise socially conservative family values. Family First, a minor political party, opposes LGBT adoption, IVF treatment for lesbians, and opposes same-sex marriage and civil unions, stating their declaration of marriage as "a union of a man and a woman" [] .

The Christian Democratic Party, a minor conservative political party established in 1977, concentrates almost exclusively on moral issues such as abortion, homosexuality and pornography, and has recently made opposition to same-sex marriage a major part of its platform.

The Democratic Labor Party (DLP) is a minor, socially conservative political party in Australia that opposes same-sex rights and same-sex marriage.

Religious Groups

The Australian Christian Lobby, formed in 1995, and the Australian Family Association, formed in 1980, strongly oppose same-sex rights such as adoption and marriage.

Peter Jensen, Archbishop of the Evangelical Anglican Diocese of Sydney, has vigorously opposed homosexuality, stating that accepting homosexuality is "calling holy what God called sin." [cite web |title=Church imperilled by gays: archbishop |date=2006-02-03 |publisher=The Age |url= |author=Zwartz, Barney |accessdate=2007-07-22] Leaders of the Anglican Church of Australia have called for the removal of the proposed ACT Civil Union legislation, because they "believe this proposal actually threatens and compromises the traditional Christian view of marriage between a man and a woman."cite web |title=Church call to scrap gay union |date=2006-04-03 | |url=,10117,18693256-1242,00.html?from=rss |accessdate=2007-09-03]

The Catholic Archbishop of Sydney Cardinal George Pell, The Catholic Church according to George Pell believes and teaches that sexual activity should be confined to married couples, a man and a woman, and opposes all extra-marital sexual activity. The Catholic Church will continue to oppose legitimizing any extra-marital sexual activity, including homosexual activity. It will also continue to oppose homosexual propaganda especially among young people he states.. [cite web |title=Pell backs discrimination against gays |publisher=Australian Broadcasting Corporation |url=]

The Australian Federation of Islamic Councils, considered Australia's most important Islamic organisation, came out strongly against removing discrimination against same-sex partners in federal law. Chairman Ikebal Patel said such moves would threaten the "holy relationship" of marriage between a man and woman and the core values of supporting families. [cite web |title=Battle lines drawn on gay unions |author=Schubert, Misha |date=2008-05-01 |publisher=Brisbane Times |url= |accessdate=2008-05-01]

The Salt Shakers is a Christian Ethics Action Group based in Melbourne, Victoria. It includes people from a number of Christian denominations and provides resources to Christians and churches. They also operate in the public arena by consulting, lobbying and presenting a Christian perspective on issues affecting society. This includes sending press releases, giving interviews for current affairs and other programs, making submissions to government, monitoring TV standards. They believe homosexuality is a sin. [cite web |title=The Salt Shakers And Homosexuality |publisher=The Salt Shakers |url= |accessdate=2008-05-01]

The Christian organisation Exclusive Brethren ran full page advertisements in various newspapers to criticise Tasmanian Greens' pro-Gay policies such as same-sex marriage (as well as gay adoption and fostering, something already partially recognised by Tasmanian law) in the lead up to the 2006 Tasmanian State Election.cite web |title=Church group challenged over 'negative' ads |author=Paine, Michelle |date=2006-03-16 | |url=,10117,18483128-1244,00.html |accessdate=2007-09-03]

Summary table


Additional references and sources

History and Activism
* [ Australian Lesbian and Gay Archives]
* [ Living Out Loud: A History of Gay and Lesbian Activism in Australia] by Graham Willett, ISBN 1864489499, 2000.
* [ Mapping Homophobia In Australia Study]
* [ "Queen City of the South" Melbourne Queer History radio series] Adoption and Parenting
* [ Gay Dads Australia Surrogacy Guide]
* [ Same Sex Couple Adoption: The Situation in Canada and Australia ] Parliament of Australia
* [ NSW Law Reform Commission Report, 1988 - Artificial Conception: In Vitro Fertilization]
* [ Same Sex Parenting] by Paul Boers, Senior Associate of Dimocks Family Lawyers. (April 2005)Other
* [ Australia National Laws]
* [ Federal and State Anti-Discrimination Law]
* [ Legal Recognition of Same-Sex Relationships Briefing Paper 9/2006] New South Wales Parliament
* [ World conference on LGBT rights]
* [ Interdependency Visa: Offshore Temporary and Permanent (Subclasses 310 and 110)]
* Sinnes, G.R. "Australia" [ "Encyclopaedia of Homosexuality."] Dynes, Wayne R. (ed.), Garland Publishing, 1990. pp. 93-97

See also

* Recognition of same-sex relationships in Australia
* Human rights in Australia
* Timeline of LGBT history

* LGBT adoption
* LGBT parenting

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