National

In 1998, there was some discussion of a Federal Anti-Vilification law but proposed legislation was not introduced [R1.1].

Assisted Reproduction Technology

Under the Family Law Act Section 60H and subjec t to their prior consent, the woman in a same-sex relationship who undergoes IVF treatment to conceive is presumed to be the mother of any child born as a result of the pregnancy. The female partner is considered to be the legal parent, provided she and the child's biological mother were living together as a couple on a genuine domestic basis when the IVF procedure was performed [L1.6].

However, a gay male couple who conceive a child with a woman via artificial insemination are not legally deemed to be the parents of that child, even though the partner who donated sperm is biologically the child's father. Rather, the biological mother and her partner (if she has one) will be deemed to be the child's parents. This applies regardless of the intention of the parties and whether the biological mother's partner is male or female. [L1.6], [R1.5].

In October 2010, the national Gay Dads Alliance was set up to call for changes to federal laws for full parental recognition of children born in co-parenting and surrogate arrangements [R1.4].

In October 2008, proposed amendments to Section 60H of the Family Law Act that would include both same-sex partners of children conceived with assisted reproductive technology in the definition of 'parent' were put in jeopardy by additional amendments proposed by the Coalition [R1.3].

In January 2008, the new Rudd Federal government ruled out funding fertility treatment for lesbians and single women [R1.2]

In August 2000, the [former] Federal Howard Government reportedly sought to amend the Sex Discrimination Act [L1.2], [R1.1] to overturn the effects of the Federal Court judgment in John McBain v. The State of Victoria & Ors [C3.3].

Section 22 of the Federal Sex Discrimination Act 1984 [L1.2] prohibits discrimination in the provision of goods and services on the grounds of sex or marital status.

Surrogacy

In January 2009, the Joint Working Group of the Standing Committee of Attorney's-General put forward "A Proposal for a National Model to Harmonise Regulation of Surrogacy" [R2.2].

In July 2008, more than 100 gay Australian couples had reportedly paid $80,000 to create a baby using surrogate mothers in the United States [R2.1]

Courts & Tribunals

In July 2000, the Federal Court ruled that state law banning participation of single women in IVF programs was in conflict with the Federal Sex Discrimination Act which makes it unlawful to discriminate on the basis of sex or marital status [C3.3], [R3.2].

The full bench of the High Court of Australia rejected an application by the Australian Catholic Bishops Conference seeking reconsideration of the Federal Court ruling that Victorian laws restricting access to IVF were overridden by the Federal Sex Discrimination Act, dismissing the application with costs [R3.1].

Asylum, Refugees

A relatively new addition to the list of provisions enshrined in the 1951 UN Convention that entitles a person to apply for refugee status, "sexual orientation" owes its inclusion to a growing understanding in a handful of countries that lesbians and gays constitute a distinct social group. This article has been invoked to grant asylum to lesbians and gay men in Australia, Canada, the United Kingdom, Germany, Switzerland, Finland, Ireland, New Zealand, Denmark, Sweden, Holland, Belgium, France and the US [R1.3].

Over the past few years Australia has recognised over 100 gay men and lesbians as refugees due to the presecution they faced in their home countries.

This as a result of Federal and High Court decisions including gay men and lesbians in one of the five categories for claiming refugees status rather than government policy.

In October 2009, the Refugee Review Tribunal was reportedly requiring proof that the applicants were gay [R3.1].

Previously:

In 2001, proposed changes to the Migration Act would in effect narrow the definition of refugees and may result in excluding gay men and lesbians claiming refugees status on the basis of persecution [R1.2].

In December 2003, it was generally accepted in the High Court of Australia, that persecution based on sexual orientation falls within The Convention relating to the Status of Refugees (done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967) grounds and therefore requires protection [C3.1], [R1.1].

Immigration

The Federal Migration Act 1958 governs immigration law in Australia [L2.4].

In November 2009, changes to immigration regulations came into effect. Same-sex couples wanting to migrate no longer need to have lived together for 12 months prior to applying if their relationship is on a state-based registry. Although it is still a requirement to show cohabitation in most situations, couples can be exempted if there have been specific reasons for them not living together such as ongoing work commitments, or having lived in a country where homosexuality is illegal. Those couples must still show joint financial interests and proof that they have regular contact [R2.3].

From 1 July 2009, same sex-couples will receive the same treatment as opposite-sex de facto couples, both as partners and parents. Interdependency visas will cease to exist in that name. The amendments do not apply to visa applications lodged before 1 July 2009.

The migration program allows Australian citizens, Australian permanent residents and eligible New Zealand citizens to either sponsor their same-sex partner to migrate to Australia or for citizens of other countries to include their same-sex partner in most temporary and permanent visas applications.

Same-sex partners are now considered de facto Partner couples. De facto Partner couples must show evidence of a genuine and ongoing relationship of 12 months or more.

There are visas options which can be applied for both on-shore (within Australia) or off-shore (overseas).

Apart from de facto Partner visa classes, gay men and lesbians are able to apply for any of the many temporary and permanent visa subclasses available so long as they meet the relevant criteria within the visa subclass and they can include their same-sex de facto Partner in these visas applications and include children and step children of these relationships into these applications. Health and character criteria must of course be met [R2.2].

Previously:

In March 2006, [former] Immigration Minister Amanda Vanstone announced that skilled migrants would soon be able to sponsor same-sex partners to come to Australia. She said citizens and permanent residents could sponsor same-sex partners to migrate to Australia but skilled migrants were not offered the same provisions [R2.1] .

Courts & Tribunals

On 03 December 2012, Federal Magistrate Robert Cameron ruled that the Refugee Review Tribunal failed to consider corroborative expert evidence – that a pair of Bangladeshi men seeking protection visas were homosexual – as material and failed to satisfy the applicants' legitimate expectations that the guidelines 'Guidance on the Assessment of Credibility' would be followed, sending the matter back to the Tribunal [L3.9], [R3.8].

In November 2010, it was reported that a "gay" Lebanese man was refused a protection visa because the Refugee Review Tribunal did not believe he was gay. He had previously become engaged to the woman to obtain a visa [R3.7].

In October 2009, the Refugee Tribunal effectively required a Bangladeshi couple seeking asylum to prove they are gay [R3.6].

In September 2007, after three hearings, a queer Bangladeshi man confined to Villawood Detention Centre for two and a half years was finally granted permanent Australian residency by the Refugee Review Tribunal [R3.5].

In August 2007, a Pakistani refugee Ali Humayun was denied the right to appeal his case in Federal Court from a Refugee Review Tribunal decision against his application on the basis that the Tribunal members simply did not believe his homosexuality. An appeal was lodged in the High Court [R3.4].

In September 2005, the Full Bench of the Federal Court ruled that people infected with HIV can be refused visas to Australia regardless of their circumstances [R3.3].

Overturning Justice Finkelstein's earlier ruling, the Court said that under migration regulations, the Immigration Department was not obliged to consider the circumstances of an applicant's illness but the effect of a hypothetical case [R3.3].

In December 2003, the High Court of Australia ruled [C3.2] that persecution over sexual orientation could be grounds for refugee status and rejected the distinction between "discreet" and "non-discreet" homosexuals [R3.1].

National

The Federal Family Law Act 1975 does not give same-sex partners any legal status regarding their partner's biological children [L1.2].

However, the Act does provide for Parenting Plans to be agreed between the parties, including contact visits between a child and another person or other persons. The Parenting Plan may be registered in the Court.

In considering arrangements for contact visits the paramount consideration is what is in the best interests of the child. The child has "a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development" [emphasis added].

Division 4 of the Federal Family Law Act [L1.2] provides for Parenting Plans to be agreed between the parties, including provisions as to who a child is to live with. A Parenting Plan may be registered in the Court.

In considering arrangements for the question of who a child is to live with the paramount consideration is what is in the best interests of the child.

In addition to custody arrangements, a parenting plan may include provisions with regard to contact visits between a child and another person or other persons, maintenance of the child and any other aspect of parental responsibility for a child

From 01 July 2007 courts will not be able to hear an application for a parenting order in a new case unless the person seeking the order first obtains a certificate from a registered family dispute resolution practitioner [R1.1].

Courts & Tribunals

On 19 November 2012, Federal Magistrate J Harman found in favour of the transgender father Ms Parer having equal, shared responsibility for his three girls, aged seven, 12 and 17, in all areas, except their education and health [C2.9], [R2.8].

In September 2010, Justice Linda Dessau in the Family Court ordered that in the best interests of "baby E", born as a result of sperm donated by two men to his lesbian parents, the child spend regular time with both men and live with the women [R2.7].

On 17 September 2009, Magistrate Susan Purdon-Sully in the Federal Magistrates Court of Australia ruled that a Queensland gay male couple had proved the case that they are "persons concerned with the care, welfare and development of the child, [X] born in 2006." They will now apply for access to the biologically unrelated child in the Family Court of Australia [C2.6], [R2.5], [R2.4].

In April 2002, the Family Court of Australia (Guest J) granted a sperm donor regular contact with his child [C2.3], [R2.2]

In December 1997, two male to female transsexuals were granted access to their children by the Family Court [R2.1].

National

On 02 March 2011, a controversial bill to weaken Canberra's power over territory laws on issues such as gay civil unions was delayed after an apparent backdown by [Prime Minister] Julia Gillard. It was referred to an upper house committee for examination [R1.13].

On 14 January 2010, the Minister for Families, Housing, Community Services and Indigenous Affairs, Jenny Macklin was reported to have said that Centrelink would take a compassionate approach to some elderly gay couples, and gay couples living in rural areas, who are affected by new social security laws, having regard their fear of discrimination in determining their social security debt [R1.12].

From 01 July 2009, same-sex de facto relationships were recognised under Social Security and Family Assistance law requiring same-sex partners to notify Centrelink and the income and assets of both partners are taken into account in determining Social Security and Family Assistance entitlements [R1.11].

In May 2009, the Australian Bureau of Statistics announced that it would count same-sex couples in the next national census, due in August 2011 [R1.10].

In April 2009, the Australian prime minister Kevin Rudd rejected a proposal that civil unions should be offered to gay couples [R1.9].

In November 2008, the Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008, was passed granting equal access to the Family Court for same-sex de facto couples upon the breakdown of a relationship, and recognising same-sex families for the purposes of child-related proceedings and child support [R1.8].

The Act came into operation on 01 December 2008 and the Family Court assumed full responsibility for the jurisdiction created by the Act as and from March 2009 [R1.7].

On 01 January 2009, same-sex couples and their children were able to register as a family for the Medicare Safety Net to receive the same entitlements as opposite-sex couples [R1.6].

In February 2008, the Rudd Government introduced new legislation that failed to remove discrimination in the Aged Care Act favouring opposite-sex couples [R1.5].

In March 2007, the Prime Minister's office announced that it would undertake a review of Australian superannuation, tax and welfare laws, with a view to ending discrimination against same-sex couples [R1.4].

Previously:

In June 2006, new laws to grant gay couples equal rights in areas including tax, health, welfare and superannuation were expected to be in place by the end of 2006 [R1.3].

In September 2003, the Senate passed a comprehensive resolution calling on the Federal Government to introduce laws to legally recognise same-sex couples [R1.2].

It was thought that there was no likelihood that the Federal Government would be moved by the resolution.

In October 2005 ironically, an anti-terrorism Bill before the House of Representatives refers to a close family member of a suspected terrorist as "the person's spouse, de facto spouse or same-sex partner" [R1.1].

Courts & Tribunals

In April 2004, the Remuneration Tribunal agreed that an MP's partner of 18 years, who was also on his personal staff, could be officially recognised as fulfilling both roles for the purpose of travel entitlements [R2.1].

National

The Disability Discrimination Act 1992 [L1.10] makes it unlawful to discriminate against a person (in the areas of employment, accommodation, education, provision of goods and services and disposal of land, clubs and club members, sport and local government) because he or she is living with HIV or AIDS, is thought to be living with HIV or AIDS, may have HIV/AIDS in the future, is an associate of someone who is (or is assumed to be) HIV positive or have AIDS, or is the carer of someone who has aids.

However, see 3. Courts & Tribunals below

The Sex Discrimination Act 1984 [L1.9] makes it unlawful to discriminate on the basis of a person's sex, marital status or pregnancy, to sexually harass a person or to dismiss a person from their job because of their family responsibilities.

Note: "sex" does not include "sexual orientation"

The Act makes it unlawful to discriminate in the areas of employment, awards and enterprise bargaining, insurance and superannuation, education, goods, services and facilities, accommodation and housing, buying and selling land, Commonwealth laws and programs.

The the Workplace Relations Act 1996 makes unlawful dismissal on the grounds of sexual orientation [R1.8].

Commonwealth protection applies to all workers, both State and Federal.

On 20 November 2012, the Government released the draft Human Rights and Anti-Discrimination Bill 2012 that will consolidate five acts into one making discrimination on the basis of sexual orientation and gender identity unlawful, but religious exemptions will remain, except for government-funded aged care services [L1.7], [R1.6].

On 04 September 2008, Same-Sex Relationships (Equal Treatment in Commonwealth Laws - General Law Reform) Bill 2008 was introduced in the Federal Parliament to implement the recommendations of the Human Rights and Equal Opportunity Commission report "Same-Sex: Same Entitlements" [L1.5], [R1.4].

In April 2008, it was reported that legislation to remove same-sex discrimination from a wide range of Commonwealth laws would be introduced in the Winter Sittings of Parliament. Areas where discrimination will be removed include tax, superannuation, social security, health, aged care, veterans' entitlements, workers' compensation, employment entitlements, and other areas of Commonwealth administration [R1.3].

In January 2005, the Howard Government announced the new Australian Human Rights Framework, which once again completely ignoring the rights and freedoms of the GLBTI community [R1.2].

On 25 November 2003, the Sexuality and Gender Status Discrimination Bill 1995 which would widen the grounds on which discrimination in the Federal sphere would become unlawful, was introduced. However, the Bill stalled in the Senate. As a private member's bill, debate is restricted to "Question Time". Without the support of the major parties, progress is unlikely.

On 28 August 2001, the Australian Democrats won the Senate's 'in principle' support for the introduction of national legislation to outlaw sexuality discrimination [R1.1].

Courts & Tribunals

In December 1999, a High Court ruling may in certain circumstances make employees liable to discharge if they are HIV positive [R2.1].

National

On 14 September 2011, the Department of Foreign Affairs and Trade announced new guidelines under which sex reassignment surgery will no longer be a prerequisite to issue a passport in a person's preferred gender [R1.7].

Previously:

In November 2009, the Department of Foreign Affairs and Trade was forced to drop its policy prohibiting transgender people from obtaining a passport in their lived-sex to travel abroad for gender re-assignment surgery, changing the words from 'transgender' to 'sex and gender diverse' [R1.6].

In July 2009, the Australian Passport Office reviewed its policy to make it easier for those seeking a passport in their preferred gender [R1.5]. The

"Applications will be considered by the Australian Passport Office on a case-by-case basis where an applicant claims they are unable to obtain a revised birth certificate in their preferred gender because –

1. they are unable to complete sex reassignment surgery due to a pre-existing medical condition; or
2. the surgery in the applicant's case carries a higher than normal risk and is considered by a relevant medical practitioner to be dangerous or life-threatening.

The following documentation should accompany an application:

• documentary evidence that the applicant has approached the relevant government agency in their state or territory seeking recognition of their change of sex and the agency's written advice as to why it has declined to recognise a change of sex;
• a statement from the client's medical practitioner providing the following information:
  • confirmation that hormone therapy treatment has been on-going for at least two years;
  • evidence of any initial surgery completed e.g. mastectomy;
  • details of pre-existing health condition and advice why surgery carries a higher than normal risk;
  • confirmation that completion of sexual reassignment surgery would have a higher than normal risk or be life-threatening for the particular applicant.
• evidence of you living in your preferred gender such as a driver's licence, Medicare card, Centrelink card or rates notice." [R1.4].

A limited validity passport (LVP) with a maximum validity of one (1) year may be issued for travel overseas for the specific purpose of gender reassignment surgery [R1.4].

In May 2007, passport legislation was amended, disqualifying trans people from obtaining passports listing their "intended sex" [R1.3].

Passports must state only the gender listed on a trans person's birth certificate.

In March 2010, the Organisation Internationale de Intersexués Australia labelled revisions to the American Psychiatric Association's diagnostic manual (used in Australia) a backward step, by removing references to 'gender identity disorders', and 'gender identity disorder not otherwise specified' and preferencing 'gender incongruence', as doctors take up the term 'disorder of sex development' [R1.2].

In January 2003, Alex MacFarlane was believed to be the first Australian issued with a birth certificate acknowledging a gender other than male [or] female, and was issued with a passport showing "X" in the sex field [R1.1]

Rather Alex's birth certificate, issued in Victoria, says "indeterminate - also known as intersex".

See also: 2. Courts & Tribunals [R2.3], [R2.4]

Courts & Tribunals

On 02 February 2012, the Full Court of the Family Court of Australia ordered "a Public Authority" have leave to intervene in the appeal in Re Jamie [2012] FamCAFC 8, making written and oral submissions concerning "childhood gender identity disorder". The family is appealing for Jamie's right to complete gender-realignment treatment on the grounds that sex-change treatments should not fall under special medical procedures that courts must approve [C2.16], [R2.15].

On 06 April 2011, Justice Linda Dessau ordered that the parents of Jamie (aged 10 years and 10 months) be authorised to consent to drug therapy for Jamie to suppress puberty and reconvene when Jamie turns 16 to consider approval for the second stage [C2.14], [R2.13].

On 02 December 2010, Justice Linda Dessau acceded to an emergency application by an autistic, 16-year-old schoolboy's parents, so he can begin drug treatment for a sex change before puberty fully takes hold – on the proviso he has his sperm extracted and frozen in case he decides he wants children [C2.12], [R2.11].

In December 2008, the Human Rights and Equal Opportunities Commission raised the possibility of the creation of an official intersex status, also arguing that people should be able to change their driving licenses and passports without having to undergo gender reassignment treatment [R2.10].

On 07 November 2008, Collier J. in the Family Court of Australia at Parramatta ordered that a 14-year-old boy be enabled to undergo hormone treatment to become a girl [C2.9], [R2.8].

On 14 December 2007, Carter J. in the Family Court of Australia at Melbourne ordered that a 12-year-old Victorian girl be allowed to begin hormone treatment in the first step toward full gender reassignment surgery [C2.7], [R2.6].

In October 2007, the NSW Administrative Appeals tribunal has told the Federal Government to give a married trans woman her passport showing her as a female person despite her birth certificate showing her gender as male [R2.5].

In August 2007, pre-operative trans woman, Stefanie Imbruglia (singer Natalie's cousin), was denied a temporary passport recording her gender as female, which would have allowed her to travel to Thailand for genital realignment surgery [R2.4].

In April 2004, in a landmark decision, Family Court Chief Justice Alastair Nicholson has ruled that "Alex", a 13-year-old girl who is convinced she is a boy, could take hormones to start the process to become a boy [R2.3].

On 21 February 2003, the Full Court of the Federal Court of Australia held that "Unless the context requires a different interpretation, the words man and woman when used in legislation have their ordinary contemporary meaning according to Australian usage. That meaning includes post-operative transsexuals as men and/or women in accordance with their sexual reassignment" [C2.2 at para 16(3)], [R2.1].

National

The Federal Disability Discrimination Act [L1.1] makes it is unlawful to discriminate against a person (in the areas of employment, accommodation, education, provision of goods and services and disposal of land, clubs and club members, sport and local government) because he or she is living with HIV or AIDS, is thought to be living with HIV or AIDS, may have HIV/AIDS in the future, is an associate of someone who is (or is assumed to be) HIV positive or have AIDS, or is the carer of someone who has aids.

However, see 2. Courts & Tribunals below.

Courts & Tribunals

As a result of an Australian High Court ruling in December 1999 [R2.1], employees may in certain circumstances be liable to discharge if they are HIV positive.

National

The Federal Disability Discrimination Act 1992 [L1.2] makes it is unlawful to discriminate against a person (in the areas of employment, accommodation, education, provision of goods and services and disposal of land, clubs and club members, sport and local government) because he or she is living with HIV or AIDS, is thought to be living with HIV or AIDS, may have HIV/AIDS in the future, is an associate of someone who is (or is assumed to be) HIV positive or have AIDS, or is the carer of someone who has aids.

However, see 2. Courts & Tribunals below.

In August 2007, the Federal Government confirmed its current policy that visitors to Australia would not have to undergo HIV tests or be required to declare their HIV status before visiting Australia [R1.1].

Courts & Tribunals

As a result of an Australian High Court ruling in December 1999 [R2.1], employees may in certain circumstances be liable to discharge if they are HIV positive.

National

The Marriage Act 1961 was amended to specifically include the commonly accepted definition of marriage as the voluntary and exclusive union of one man and one woman and to exclude same-sex couples from adopting children from overseas [R1.31].

"marriage" means the union of a man and a woman to the exclusion of all others, voluntarily entered into for life [L1.30 – Section 5].

It has been argued that by so defining "marriage" in Commonwealth legislation to apply to opposite-sex couples, it has now left it open for the States to introduce laws permitting same-sex couples to marry. The States have residual powers, where there is no conflicting Commonwealth law.

The Family Law Act 1975 also requires the Family Court in the exercise of its jurisdiction to have regard inter alia to "the need to preserve and protect the institution of marriage as the union of a man and a woman to the exclusion of all others voluntarily entered into for life" (s43).

There are no Federal registered partnership or civil union laws in Australia.

Previously

The Marriage Act did not specifically confine the institution of "marriage" to the union of opposite-sex couples, however ss46, 69 require certain authorised celebrants and marriage officers to explain the nature of marriage in words to the effect that "Marriage, according to law in Australia, is the union of a man and a woman to the exclusion of all others, voluntarily entered into for life."

One of Australia's top jurists, former Family Court judge and leading Sydney academic Peter Nygh -- now deceased -- is believed to have advised the Government that the Australian Marriage Act was so wide that courts could easily interpret gay and lesbian unions as legally valid marriages and contained a clause that would allow overseas same-sex marriages to be recognised by the courts [R1.29]

On 16 May 2013, the Greens introduced the “Marriage Act Amendment (Recognition of Foreign Marriages for Same-Sex Couples) Bill 2013” into the Senate. Were it to become law, same-sex marriages from overseas would be recognised in Australia [L1.28], [R1.27].

On 09 May 2013, Greens MP Adam Bandt was calling for his bill (Marriage Equality Amendment Bill 2012) to be voted on Friday June 6 [R1.26].

On 11 October 2012, Greens senator Sarah Hanson-Young forwarded a motion to the Senate to stop Australia's federal government from challenging state same-sex marriage laws. The Senate defeated it in a 38–10 vote [R1.25].

On 20 September 2012, the Senate voted 41–26 against the Marriage Amendment Bill (No.2) 2012 only a day after a similar bill was defeated in the Federal Parliament's lower house [R1.24].

On 19 September 2012, the House of Representatives voted 98–42 against the Marriage Amendment Bill 2012, the first of four bills introduced to Parliament that aim to lift the country's ban on same-sex marriage. A separate bill was also being debated in the Senate [R1.23].

On 17 September 2012, the Australian Human Rights Commission released a position paper in which it considers that the fundamental human rights principle of equality means that civil marriage should be available, without discrimination, to all couples, regardless of sex, sexual orientation or gender identity [D1.22], [R1.21].

On 10 September 2012, the Marriage Amendment Bill (No.2) 2012 was introduced into the Senate by Northern Territory Senator Trish Crossin and sponsored by Victorian Senator Gavin Marshall, Western Australian Senator Louise Pratt and Tasmanian Senator Carol Brown [D1.20], [R1.19].

On 25 June 2012, the Senate Legal and Constitutional Affair Legislation Committee recommended a conscience vote on changing the definition of marriage to “the union of two people, to the exclusion of all others, voluntarily entered into for life” [D1.18], [R1.17].

On 13 February 2012, Mr Adam Bandt MP (Greens) and Mr Andrew Wilkie MP (Independent) introduced the Marriage Equality Amendment Bill 2012 (the Bandt/Wilkie Bill) and Mr Stephen Jones (Labor) introduced his private member's bill, the Marriage Amendment Bill 2012 (the Jones Bill). Both bills propose amendments to the Marriage Act 1961 (Cth) (the Marriage Act). The House of Representatives Selection Committee asked the Standing Committee on Social Policy and Legal Affairs to inquire into and report on these two bills. The report does not make recommendations [D1.16], [R1.15].

On 27 January 2012, the Government announced that from 01 February 2012, same-sex couples can apply for Certificates of No Impediment, enabling them to marry in countries allowing gay marriage including Portugal, Spain, Norway and South Africa [R1.14].

On 04 December 2011, the ALP National Conference decided to lift the ban on issuing Certificates of Non-Impediment to same-sex couples (in early 2012), enabling them to marry overseas [R1.13].

On 03 December 2011, the Labor Party made marriage equality a part of its policy platform and in a 208 to 184 vote, Prime Minister Julia Gillard's push for a marriage equality conscience vote for Labor MPs was successful [R1.12].

On 14 November 2011, Prime Minister Gillard reportedly supported a conscience vote in the Parliament on the question of same-sex marriage however, the prospects of any Bill to amend the Marriage Act are miniscule [R1.11].

As at August 2011, the Australian Government issues Certificates of No Impediment to Marriage (CNI's) to different sex couples who wish to marry overseas but refuses to issue CNI's to same sex couples who seek to get married overseas, even if the laws of that country or state permit marriage between same sex couples [R1.10].

In August 2010, the Federal Attorney-General's office confirmed that Certificates of No Impediment to Marriage (CNIs) from the Australian government will only be issued where the proposed overseas marriage would also be recognised as valid under the laws of Australia, in effect preventing same-sex couples from marrying overseas where foreign governments seek such document [R1.9].

On 25 February 2010, the Senate rejected a bill to give equal marriage rights to gay citizens in a 45–5 vote. Twenty-six senators were absent from the vote [R1.8].

In January 2010, The Australian Quakers called on the Federal Government to amend the Marriage Act to give full and equal legal recognition to all marriages, regardless of the sexual orientation and gender of the partners [R1.7].

On 26 November 2009, a Senate inquiry committee report recommended that the federal government not support the Marriage Equality Amendment Bill 2009 [R1.6].

On 24 November 2009, The Sydney Morning Herald called for full marriage equality in an editorial headlined "Whatever the Gender, All Marriages Should Be Equal" [R1.5].

On 21-22 November 2009, the Victoria State Labor party passed a resolution calling for gay and lesbian couples to be given the same rights as heterosexual couples, including the right to state-sanctioned marriage [R1.4].

In August 2009, the Federal ALP reaffirmed that the party would not be budging on its opposition to same-sex marriage and civil unions [R1.3].

On 25 June 2009, the Senate referred the Marriage Equality Amendment Bill 2009 (a private senator's bill that seeks to remove all discrimination from the Marriage Act 1961 on the basis of sexuality and gender identity and to permit marriage regardless of sex, sexuality and gender identity) for inquiry and report. The reporting date is 26 November 2009 [R1.2].

The Metropolitan Community Church celebrates committment ceremonies and in 2007, Rabbis throughout Australia, New Zealand and Asia were able to officiate at same-sex commitment ceremonies [R1.1]. As at 2007, no other church or recognised religion permits same-sex couples to be "married".

Courts & Tribunals

On 21 February 2013, Justice Jayne Jagot ruled that the ban on same-sex marriage in Australia does not constitute sex discrimination within the meaning of Section 5 of the Sex Discirimnation Act, “because in all cases the treatment of the person of the opposite sex is the same” [C2.6], [R2.5].

On 12 October 2001, in a landmark judgment, the Family Court found that the marriage between a female to male transsexual and his female partner was valid and that the definition of "man" should be based on contemporary thinking and not on outdated ideologies [C2.4], [R2.3].

In February 2003, the full bench of the Family Court of Australia rejected a federal government bid to quash the transsexual marriage [C2.2], [R2.1].

National

In November 2010, the Australian Defence Force announced it would discontinue the policy of discharging transitioning members and pay for sex change operations for soldiers after a policy review into their liability for costs following the case of transgender soldier Captain Matthew – now Bridget – Clinch and after a Human Rights Commission complaint was launched [R1.4].

On 13 September 2010, Chief of the Defence Force Angus Houston instructed commanders to "manage ADF transgender personnel with fairness, respect and dignity … and existing medical review provisions; and ensure all personnel are not subjected to unacceptable behavior" – revoking the policy that effectively banned transgender service members. The ADF is believed to be the last government agency that specifically fired employees for transitioning gender [R1.3].

On 01 December 2005, Chief of Defence Force issued revised Defence Instructions (General) PERS 53-1 concerning the Recognition of interdependent partnerships [D1.2].

In September 2000, the Center for the Study of Sexual Minorities in the Military (CSSMM) report into "The Effects of Including Gay and Lesbian Soldiers in the Australian Defence Forces" found that the full lifting of the ban on gay service has not led to any identifiable negative effects on troop morale, combat effectiveness, recruitment and retention, or other measures of military performance [R1.1].

In November 1992, the Australian Defence Force (ADF) lifted the ban on openly gay and lesbian members. The military "culture" changes only slowly and gay and lesbian members should still perhaps be circumspect about revealing their sexuality to other service members.

Benefits

In 2005, gay soldiers, sailors and pilots in the Australian Defence Force (ADF) looked set to get access to family benefits, and death and injury compensation for the first time [R2.3], this policy change may enable a same-sex partner to access the Services Workforce Access Program for Partners (SWAPP)..

The changes are to be implemented on 1 December 2005 [R2.2]

Previously:

Unlike the Australian Federal Police and the Department of Foreign Affairs, the ADF did not recognise the same-sex partner of any ADF member and their partner was not entitled to any relocation expenses and could not share defence accommodation or any allowances in lieu.

If an ADF member is killed or injured, their partner would not receive any counselling, funeral expenses, compensation, death benefits or a pension.

Also, same sex partners of Defence Force personnel were not entitled to access SWAPP which is aimed at helping the spouses of Army, Navy and Defence Force employees find work [R2.1].

See 5. Courts & Tribunals [R5.2] regarding pension entitlements

Discrimination, Harassment, Unacceptable Behaviour

Defence Instructions (General) PERS 35-3 issued pursuant to Section 9A of the Defence Act 1903 [L3.2] paragraphs 6 to 9 provides as follows:

"BEHAVIOUR WHICH CONSTITUTES HARASSMENT, DISCRIMINATION AND UNACCEPTABLE SEXUAL BEHAVIOUR

6. Any behaviour which is offensive, belittling or threatening and is directed at an individual or group of workers is unacceptable. It may be the result of some real or perceived attribute or difference (such as disability, race, gender, sexual preference, age or religion). The behaviour may also be unwelcome, unsolicited, unreciprocated and usually, but not always, repeated. It is behaviour which a reasonable person, having regard to all the circumstances, would have anticipated would offend, humiliate or intimidate the person being harassed.

7. This behaviour must not be confused with legitimate comment and advice (including negative comment or feedback) from managers and supervisors on the work performance or work related behaviour of an individual or group, which is intended to assist personnel to improve their performance or behaviour.

8. The Racial Discrimination Act 1975 provides that it is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on grounds of race, colour, descent or national or ethnic origin DI(G) PERS 44-1 - ADF Policy Regarding the Avoidance and Elimination of Racial Discrimination and Racist Behaviour provides further details on the application of this Act to the ADF.

9. The Sex Discrimination Act 1984 makes unlawful both sexual harassment and discrimination on the grounds of sex, marital status, pregnancy and family responsibilities. DIG(G) PERS 35-2 - Application of the Sex Discrimination Act to the Australian Defence Force provides further details on the application of this Act to the ADF.

10. The Disability Discrimination Act 1992 provides that it is unlawful for a person to discriminate or harass another person in relation to disability. Disability is defined in the Interpretation Section of the Act.

(Ed: However, as a result of an Australian High Court ruling in December 1999, service members may be liable to discharge if they are HIV positive) [R3.1].

11. Under the Racial Discrimination Act 1975, the Sex Discrimination Act 1984 and the Disability Discrimination Act 1992 the Human Rights and Equal Opportunity Commission (HREOC) can make determinations that are binding on individuals and agencies.

12. In addition to the above Acts, the Human Rights and Equal Opportunity Act 1986 includes in its grounds of discrimination: race, colour, sex, religion, political opinion, national extraction, social origin, age, medical record, criminal record, impairment, marital status, mental, intellectual or psychiatric disability, nationality, physical disability, sexual preference or trade union activity. Under this Act, HREOC may only investigate and conciliate such cases. Of particular importance, the Commission forwards any unsuccessful conciliation matter to the Attorney-General for further action.

Training Programs

The Defence Equity online training package "Understanding Homosexuality" says:

"We are committed to giving Defence's people a fair go. Although gay, lesbian and bisexual personnel serve our country with the same professionalism and dedication as their heterosexual colleagues, they may face barriers that are not widely understood by those with whom they work. Since sexual orientation issues may be clouded in myth and stereotype, specific action is required to inform Defence personnel of those issues and how an inclusive climate for gay, lesbian and bisexual people will support our mission to defend Australia and its national interests."

"The online awareness education upon which you are embarking is an important step in establishing a climate where people are able to declare their sexual orientation without fear of personal or professional detriment. It is anticipated that this material will be not only interesting and informative, but that it will be taken with the utmost seriousness at all levels of the Defence Organisation."

CDF and Secretary [R4.1]

Courts & Tribunals

In 1998, a landmark court ruling gave the ADF legal protection to discriminate against HIV soldiers because of the risk they posed in certain situations [R5.2].

The Full Court of the Federal Court overturned earlier decisions by a Federal Court judge and the Equal Opportunity Commission that the army had broken the law by rejecting a recruit because of his HIV status.

The Full Court's judgment centred on issues of "bleeding safely", the risk of cross infecting others and the force's need to send soldiers into conflict.

A decision by the UNHRC that refusal to recognise same-sex partners for the purposes of pension entitlements was discriminatory was previously rejected by the Australian Government [R5.1].

National

On 01 October 2012, applications for Dad and Partner Pay will open and will allow dads and partners, who are on unpaid leave from work or are not working, to receive two week's pay at the rate of the current minimum wage from January 1, 2013. Dads can expect to receive about $1200 in total. To be eligible, dads or partners must have earned $150,000 or less in the previous financial year and have worked for at least 330 hours in 10 of the 13 months before the start of their Dad and Partner Pay period, with no more than an eight-week gap between two consecutive working days [R1.5].

On 27 June 2012, the Parliament passed the Paid Parental Leave and Other Legislation Amendment (Dad and Partner Pay and Other Measures) Bill 2012 that will extend parental payments to dads and same-sex partners from 01 January next year [R1.4].

On 04 September 2011, the Government announced that eligible fathers (earning $150,000 or less and having worked one day a week for at least 10 of the 13 months before the birth or adoption) and same sex-couples with children born or adopted on or after 01 January 2013 will be paid $1178 by the Federal Government, the equivalent of two weeks pay at minimum wage [R1.3].

In September 2008, proposed amendments to section 60H of the Family Law Act would remove same-sex discrimination from child support rights and responsibilities [R1.2].

In 1997, the Family Law (Same Sex Adoption) Bill was listed on the Cabinet Department's website as "proposed for introduction in the 2007 spring sittings". The bill would change existing law to ensure that adoptions by gay and lesbian couples of children from overseas would not be recognised in Australia. [R1.1].

Courts & Tribunals

On 19 December 2012 in Dent & Rees, Federal Magistrate Peter Cole in the Federal Magistrates Court of Australia at Newcastle, ordered that the non-biological same-sex parent not currently named on the birth certificates of three children conceived by an artificial conception procedure should have their name added to the birth certificates [R2.6].

On 24 December 2010, Justice Paul Cronin ordered inter alia that a lesbian mother be restrained from moving her daughter interstate until 31 December 2011, after a court ruled her ex-partner had the same rights as other parents, despite no biological link [C2.5], R2.4].

In December 2009, the full court of the Family Court including Chief Justice Diana Bryant, upheld the decision of Chief Federal Magistrate, John Pascoe in Aldridge & Keaton, who found that at the time of the artificial conception the partner of the biological mother was not her de facto partner and therefore not a parent as defined in the relevant legislation. However, he found she was concerned with the girl's care, welfare and development and ordered the biological mother have sole parental responsibility for the girl but that she also spend time with the non-biological ex-partner [R2.3].

In January 2010, Family Law specialist Paul Boers, one of the lawyers who defended Keaton, recommended that gay and lesbian couples looking to enter into parenting agreements receive detailed legal advice in advance to clarify the rights for parents, co-parents and sperm donors [R2.2].

In December 2003, the Family Court granted a gay Melbourne couple parental responsibility for a baby boy born to a surrogate mother in the United States [R2.1].

It is believed to be the first time that two gay men in Australia have been granted parenting orders for a child born into their relationship.

National

On 01 March 2009, the Family Law Amendment (De facto Financial Matters and Other Measures) Act 2008 (Cth) commenced operation [L1.4]

The Family Court of Australia now has jurisdiction to decide property disputes between same-sex couples, one or both of whom were ordinarily resident in New South Wales, Victoria, Queensland. Tasmania, the ACT, the Northern Territory or Norfolk Island, for at least one-third of the duration of the relationship [ss90SD, 90SK, 90SL].

The Court has the power to divide property, and also superannuation, applying the same considerations as would be the case for matrimonial cases.

Spousal maintenance may also be ordered [90SE] where the respondent has the capacity to pay for it; and only if the claimant has a need because they are unable to support themselves due to their having care and control of a child of the relationship; or physical or mental incapacity or any other good reason having regard to wider financial circumstances and future needs [s90SF].

The couple must have been in a same-sex relationship for not less than two (2) years or there is a child of the relationship or one partner has made a substantial (financial or non-financial) contribution and failure to make an order would result in a serious injustice, or the relationship is or was registered in a State or Territory [s90SB]. Proceeding must be brought within two years of the end of the relationship [s44 Family Law Act 1975].

The Act allows same-sex couples to enter into "binding financial agreements" to opt out of the legislation in whole or in part [Div 4] but may not waive their right to spousal maintenance if at the time of the agreement they were unable to support themselves without resort to an income-tested pension, allowance or benefit [90UI].

Such agreements may be set aside by the Court where there was fraud (including non-disclosure of a material matter), it was void, voidable or unenforceable, there was unconscionable conduct or it is impracticable or a material change in circumstances related to the welfare of a child of the relationship [90UM].

A certificate must be provided, signed by the person providing independent legal advice and stating that the advice was provided [90UJ]. It must also contain within its body a statement of independent advice [90UJ] [C1.3] [R1.2].

On 04 January 2010, the Federal Justice System Amendment (Efficiency Measures) Act (No 1) 2009 commenced: adjusting and relaxing the formal certification procedures, giving the Court a specific discretion to uphold an agreement despite a breach of formal requirements and requiring that a copy of each legal practitioner's certificate be given to the other party or their legal representative. The amendments apply to financial agreements made on or after 27 December 2000 [R1.1].

National

In 1990, the Federal Superannuation Act 1990 [L1.4] was amended, expanding the definition of "dependent" to include a de facto partner, which latter " … means a person who, whether or not of the same gender as the person, lives with the person on a genuine domestic basis as a partner of the person" – see 2. Regulations, below.

Previously:

The Federal Government proposed amending legislation to further define "interdependent relationships" for superannuation purposes, requiring a statutory declaration as to the existence of the relationship, and taking into account the duration of the relationship, whether it was sexual, the ownership of property, the degreee of emotional support and raising of children.

The draft Bill was open to public comment, see link below [R1.3].

The legislation was to expand the definition of dependant to include any person with whom the deceased has an interdependency relationship. This will be satisfied where the two people have a close personal relationship, live together and one or each of them provides the other with financial and domestic support and personal care [R1.2].

In June 2008, the Rudd Labor Government wanted to pass laws by July 1 to give gays and lesbians the right to inherit a public service pension or death benefit if their partner dies however, conservative MPs have attempted to thwart the moves to recognise gay partners in the same way as married couples [R1.1].

Regulations

Gay couples or siblings living together will be able claim each other's tax free superannuation benefits under regulations confirmed by the federal government [L2.2]. [R2.1].

(1) The following matters are to be taken into account in determining whether 2 persons have an interdependency relationship, or had an interdependency relationship immediately before the death of 1 of the persons:

(a) all of the circumstances of the relationship between the persons, including (where relevant):

(i) the duration of the relationship; and

(ii) whether or not a sexual relationship exists; and

(iii) the ownership, use and acquisition of property; and

(iv) the degree of mutual commitment to a shared life; and

(v) the care and support of children; and

(vi) the reputation and public aspects of the relationship; and

(vii) the degree of emotional support; and

(viii) the extent to which the relationship is one of mere convenience; and

(ix) any evidence suggesting that the parties intend the relationship to be permanent;

(b) the existence of a statutory declaration signed by one of the persons to the effect that the person is, or (in the case of a statutory declaration made after the end of the relationship) was, in an interdependency relationship with the other person.

(2) For paragraph 10A (3) (b) of the Act, 2 persons have an interdependency relationship if:

(a) they satisfy the requirements of paragraphs 10A (1) (a) to (c) of the Act; and

(b) one or each of them provides the other with support and care of a type and quality normally provided in a close personal relationship, rather than by a mere friend or flatmate.

Courts & Tribunals

In September 2006, the Administrative Appeals Tribunal ruled that to qualify for capital gains tax relief under the tax law a spouse has to be a husband or wife, which means man and woman [R1.1].

National

In November 2008, the Federal Government's social security and welfare reforms mean that Edward Young, the gay widower of an Australian war veteran, will qualify for and finally be granted a war widower's pension a decade after applying for it, just as heterosexual war widows and widowers currently do [R1.4].

Previously:

Same sex partners of veterans did not receive the benefits that accrue automatically to heterosexual partners of former service personnel [L1.3].

In December 2004, an attempt to extend war veterans equal rights was voted down by both the major parties [R1.2].

In May 2001, gay partners of Australian soldiers held prisoner by Japan during World War II were not eligible for a government payment that widows of the former captives will receive [R1.1].

Courts & Tribunals

In September 2003, the UN Human Rights Committee condemned the Australian Government for discriminating against same-sex couples in a case [C2.3] in which the Government refused to grant entitlements provided to partners of deceased war veterans to the same-sex partner of a veteran [R2.2].

Early in 2000, Edward Young took his case to the United Nations Human Rights Commission as the Department of Veterans' Affairs had refused to recognise his 39-year relationship with his late partner, a World War II veteran.

In June 2004, the Federal Government finally gave its long-awaited response to the Edward Young UN case - seven months after it was due - and in it, they still deny that they are in breach of gay human rights [R2.1].

The government had refused to grant Mr Young the same rights it automatically grants opposite sex spouses of former service personnel.