State

On 27 May 2003, the Crimes Amendment (Sexual Offences) Bill passed the NSW Legislative Council and amended the NSW Crimes Act 1900 [L1.2] to lower the age of consent for consensual sex between males to 16 years [R1.1].

State

The NSW Anti-Discrimination Act 1977 [L1.2] provides -

38S Transgender vilification unlawful

"(1) It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of:
(a) a person on the ground that the person is a transgender person, or
(b) a group of persons on the ground that the members of the group are transgender persons."

38T Offence of serious transgender vilification

"(1) A person must not, by a public act, incite hatred towards, serious contempt for, or severe ridicule of, a person on the ground that the person is a transgender person, or a group of persons on the ground that the members of the group are transgender persons, by means which include:
(a) threatening physical harm towards, or towards any property of, the person or group of persons, or
(b) inciting others to threaten physical harm towards, or towards any property of, the person or group of persons.

49ZT Homosexual vilification unlawful

"(1) It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the homosexuality of the person or members of the group."

49ZTA Offence of serious homosexual vilification

"(1) A person must not, by a public act, incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the homosexuality of the person or members of the group by means which include:
(a) threatening physical harm towards, or towards any property of, the person or group of persons, or
(b) inciting others to threaten physical harm towards, or towards any property of, the person or group of persons.

49ZXB HIV/AIDS vilification unlawful

"(1) It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of a person or group of persons on the ground that the person is or members of the group are HIV/AIDS infected or thought to be HIV/AIDS infected (whether or not actually HIV/AIDS infected).

Sub-Sections 38S (2), 49ZT (2) and 49ZXB (2) provide for some limited circumstances where such a public would not be unlawful.

49ZXC Offence of serious HIV/AIDS vilification

"(1) A person must not, by a public act, incite hatred towards, serious contempt for, or severe ridicule of a person or group of persons on the ground that the person is or members of the group are HIV/AIDS infected or thought to be HIV/AIDS infected (whether or not actually HIV/AIDS infected) by means which include:
(a) threatening physical harm towards, or towards any property of, the person or group of persons, or
(b) inciting others to threaten physical harm towards, or towards any property of, the person or group of persons.

Some discussion of a Federal Anti-Vilification law has been considered but not implemented [R1.1].

Courts & Tribunals

In April 2010, the NSW Administrative Decisions Tribunal awarded $10,000 to a gay couple from rural NSW – the first people to successfully sue under HIV vilification laws. To prove HIV vilification evidence of conduct that is in public and that incites hatred or contempt is required – see above [R2.2].

In March 2002, the Equal Opportunities Tribunal ruled that a homophobic man who shouted obscenities at his gay neighbour, smeared faeces outside his flat, smashed a beer bottle and urinated against his front door but did not vilify him in doing so. However the tribunal ruled he had vilified him when he defaced the door by drawing a large penis accompanied by the words "fag lives here, faggots should die" [R2.1].

State

The law in NSW does not proscribe against providing IVF treatment to single women.

The Status of Children Act 1996 [L1.7] provides:

14 (2) If a woman (whether married or unmarried) becomes pregnant by means of a fertilisation procedure using any sperm obtained from a man who is not her husband, that man is presumed not to be the father of any child born as a result of the pregnancy.

(3) If a woman (whether married or unmarried) becomes pregnant by means of a fertilisation procedure using an ovum obtained from another woman, that other woman is presumed not to be the mother of any child born as a result of the pregnancy.

(4) Any presumption arising under subsections (1) (3) is irrebuttable.

The Surrogacy Act 2010 [L1.6] provides:

8 Commercial surrogacy arrangements prohibited

A person must not enter into, or offer to enter into, a commercial surrogacy arrangement.

Maximum penalty: 2,500 penalty units, in the case of a corporation, or 1,000 penalty units or imprisonment for 2 years (or both), in any other case.

9 Commercial surrogacy arrangement – meaning

(1) For the purposes of this Act, a surrogacy arrangement is a commercial surrogacy arrangement if the arrangement involves the provision of a fee, reward or other material benefit or advantage to a person for the person or another person:
(a) agreeing to enter into or entering into the surrogacy arrangement, or
(b) giving up a child of the surrogacy arrangement to be raised by the intended parent or intended parents, or
(c) consenting to the making of a parentage order in relation to a child of the surrogacy arrangement.

(2) However, a surrogacy arrangement is not a commercial surrogacy arrangement if the only fee, reward or other material benefit or advantage provided for is the reimbursement of a birth mother’s surrogacy costs.

11 Geographical nexus for offences

(1) This section applies for the purposes of, and without limiting, Part 1A of the Crimes Act 1900.
(2) The necessary geographical nexus exists between the State and an offence against this Division if the offence is committed by a person ordinarily resident or domiciled in the State.

On 01 March 2011, the Surrogacy Act 2010 No 102 [L1.5] came into effect by proclamation [L1.4].

On 16 November 2010, the Surrogacy Bill 2010 was assented to

On 11 November 2010, the altruistic Surrogacy Bill 2010 was passed by both Houses of Parliament. Amendments to prevent engaging in commercial surrogacy arrangements overseas gave rise to concerns it would create a "victimless crime" [R1.3].

On 21 October 2010, Attorney General John Hatzistergos introduced a bill in the upper house to "provide certainty for the parties to surrogacy arrangements and to protect the interests of children born as a result of such arrangements" [R1.2].

In June 2008, the parliament of New South Wales (NSW) passed legislation (the Miscellaneous Acts Amendment (Same-Sex Relationships) Bill 2008) giving children born through in-vitro fertilisation (IVF) to lesbian mothers the same rights as those of heterosexual couples [R1.1].

See also: FEDERAL - DISCRIMINATION.

Courts & Tribunals

In July 2000 [R2.2] the Federal Court ruled [C2.1] 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.

National

The Federal Migration Act 1958 governs Asylum, Immigration and Refugee matters in Australia

See: FEDERAL - ASYLUM, IMMIGRATION, REFUGEES

National

The Federal Family Law Act 1975 governs access to and custody of children matters in Australia

See: FEDERAL - ACCESS TO CHILDREN

See: FEDERAL - CUSTODY OF CHILDREN

State

Under the Property (Relationships) Act [L1.8] de facto and same sex couples have the same legal rights as married people [R1.7].

On 12 May 2010, the Upper House Legislative Council passed the Relationships Register Bill in an overwhelming 32–5 vote [R1.6].

On 11 May 2010, the Relationship Register legislation was passed by the Assembly 62 votes to 9. The legislation was expected to pass the NSW Upper House Legislative Council with the support of the NSW Labor Party and the Greens [R1.5].

Previously:

On 30 April 2010, the Relationships Register Bill 2010 was presented to Parliament and was expected to be debated in coming weeks [R1.4].

On 23 February 2010, Attorney-General John Hatzistergos announced Government plans to establish state-based registers along the lines of those in the Australian Capital Territory, Victoria and Tasmania [R1.3].

In August 2007, the NSW Government ruled out creating a state-based relationship register for same-sex couples in the immediate future [R1.2].

In the absence of a National and until the state-based registry comes into being, establishing documentary proof that a same-sex couple are in a same-sex relationship may be advisable and at a minimum this could perhaps be achieved by both partners making a statutory declaration [R1.1] or signing a municipal register.

Municipal

In October 2003, the South Sydney Council established a partnership register [R2.2].

For further information see:

• City of Sydney Relationship Declaration Information Pack
• City of Sydney Relationship Declaration Application Form

Previously:

In July 2003, South Sydney Council Deputy Mayor Peter Furness proposed establishing a register for same-sex and opposite-sex couples living in the area by the end of the year, [R2.1].

State

Sections 49ZF to 49ZR of the NSW Anti-Discrimination Act 1997 [L1.1] provide that it is unlawful to treat a person less favourably or require them to comply with a requirement or condition others are not required to comply with on the ground of a person's homosexuality (in the areas of employment, commission agents, contract workers, partnerships, local government councillors, industrial organisations, qualifying bodies, employment agencies, education, provision of goods and services, accommodation, registered clubs).

Sections 54 et seq set out general exceptions for statutory authorities, Charities, religious bodies, voluntary bodies and others.

In 1996, the Anti-Discrimination Act 1977 [L1.1] was amended to include transgender persons.

See also: FEDERAL - DISCRIMINATION

Courts & Tribunals

On 20 December 2011, in the Court of Appeal, the gay lover and a friend of a man who died with HIV lost their claim that they were discriminated against because the forensic pathologists at the Sydney Local Health Network (Glebe morgue) would not reconstruct Mr B's body – which they would have provided had he not suffered the disability of HIV. The Court ruled that under the Anti-Discrimination Act 1977 the two were not ''relatives or associates'' of Mr B, and that he was not a ''person'' at the time of the alleged discrimination because he had died [C2.5], [R2.4].

In May 2008, Christian organisations in all states and territories may have lost the right to discriminate against gay people despite religious exemptions in anti-discrimination laws following a decision of the NSW Administrative Decisions Tribunal [C2.3] [R2.2].

In December 1999, in a 5–1 ruling, the High Court threw out an appeal by an HIV-positive soldier after the federal Government argued he would pose a safety risk to his comrades [R2.1].

State

In 1996, the Anti-Discrimination Act 1977 [L1.4] was amended to include transgender persons.

Part 3A makes it unlawful to discriminate against transgender persons in work (which includes discrimination in connection with employment, commission agents, contract workers, partnerships, local government councillors, industrial organisations, qualifying bodies, employment agencies) (Division 2).

It is also unlawful to discrimination against transgender persons in education, provision of goods and services, accommodation and registered clubs (Division 3).

There are some exceptions related to sport and superannuation

Transgender vilification is also proscribed by Division 5 - "It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of:

(a) a person on the ground that the person is a transgender person, or

(b) a group of persons on the ground that the members of the group are transgender persons".

In September 2011, NSW Births Deaths and Marriages issued transsexual man Conor Montgomery with an amended birth certificate changed from female to male despite his not having had genital surgery. The law in NSW requires transsexual people to undergo surgery to their reproductive organs to be able to amend their birth certificates [R1.3].

In March 2010, Norrie (also known as norrie mAy-Welby) a resident of Sydney, was issued with a 'Sex Not Specified' Recognised Details Certificate in place of a birth certificate [R1.2] however,

On 16 March 2010, NSW registrar, Greg Curry's office notified Norrie a mistake had been made and that the issued certificate was legally invalid [R1.1].

See: 2. Courts & Tribunals below.

Courts & Tribunals

On 29 November 2011, the Administrative Decisions Tribunal Appeal Panel confirmed a previous decision that the NSW Births, Deaths and Marriages (BDM) registrar doesn't have the power to allow a person to have an unspecified sex recorded [C2.4], [R2.3].

On 13 May 2011, the Administrative Decisions Tribunal upheld a prior decision by the NSW Registry of Birth, Deaths and Marriages to revoke documents handed to Norrie over a year ago, which had made Norrie the first person in Australia to be recognised as sex/genderless [C2.2], [R2.1].

State

There is no hate crimes law in New South Wales

State

The NSW Crimes Act 1900 [L1.1] provides -

"36. A person:
(a) who maliciously by any means causes another person to contract a grievous bodily disease; or
(b) who attempts maliciously by any means to cause another person to contract a grievous bodily disease, with the intent in any such case of causing the other person to contract a grievous bodily disease, is liable to penal servitude for 25 years."

The HIV/AIDS Legal Centre (HALC) has published (May 2000) the HIV/AIDS Sentencing Kit - 3rd Edition for the use of legal representatives.

The Kit presents arguments why people with HIV/AIDS facing custodial sentence should sometimes receive a reduced sentence or a non-custodial sentence.

The PDF document (254kb) may be downloaded from the HALC Web Site or GayLawNet®.

Courts & Tribunals

On 08 December 2010, an HIV–positive man was reportedly awarded nearly AU$40,000 in compensation after being refused full services by AMI Australia Holdings Pty Ltd trading as Advanced Medical Institute, a company which treats men with erection problems [R2.2].

In April 2010, a man successfully sued his ex-boyfriend for knowingly infecting him with HIV and was awarded a range of damages by the court for his pain and suffering, loss of income and loss of life expectancy, adding up to a total of $757,487 [R2.1].

State

In 1984, homosexuality was decriminalised in New South Wales [R1.1].

State

Under the Miscellaneous Acts Amendment (Same Sex Relationships) Bill 2008), passed in June 2008, it will be easier for children of lesbian couples to inherit money from their non-birth mother, and allow both mothers to appear on the child's birth certificate [R1.2].

The Property (Relationships) Legislation Amendment Act 1999 amended the NSW Family Provision Act 1982 Section 7 [L1.2] so as to provide that a person with whom the deceased person was living in a domestic relationship at the time of the deceased person's death may make an application "that such provision be made out of the estate or notional estate, or both, of the deceased person as, in the opinion of the Court, ought, having regard to the circumstances at the time the order is made, to be made for the maintenance, education or advancement in life of the eligible person."

The Property (Relationships) Legislation Amendment Act 1999 also amended the definition of "de facto spouse" (Section 32G) and the provisions for succession to real and personal property on intestacy (Section 61B) in the Wills, Probate & Administration Act [L1.2] to effectively favour of same-sex partners.

A surviving partner is now entitled to a share of the estate including the house in which the partners lived.

However, same-sex couples should still have a valid Will to avoid or at least minimise complications. [R1.1].

Territory

The Federal Marriage Act 1961 governs marriage in Australia

See: FEDERAL - MARRIAGE

National

The Federal Defence Act 1903 governs Military matters in Australia

See: FEDERAL - MILITARY

State

A. Adoption

On 10 September 2010, the Adoption Amendment (Same Sex Couples) Bill passed both houses of parliament and will become law when signed by the Governor. The Bill gives same-sex couples in New South Wales the right to apply to adopt children and allows relinquishing parents to have greater access to information on prospective adoptive parents and express their wishes for the preferred background, beliefs and domestic relationship of these prospective adoptive parents. The Bill also amends stepparent adoption provisions that will allow for the legal recognition of same-sex step parents and long-term foster carers [R1A.8].

On 02 September 2010, the lower house Legislative Assembly finally passed Adoption Amendment (Same Sex Couples) Bill in a close 45–43 vote. The Bill was subjected to further debate and amendment and will now go to the upper house Legislative Council, where the vote is also likely to be tight [R1A.7].

On 07 January 2010, the government reportedly opted to continue a ban on gay couples adopting [R1A.6].

In May 2009, a final report into the NSW same-sex adoption inquiry was postponed after the NSW Attorney General intervened in an Administrative Decisions Tribunal decision – See "Fostering Children" below [R1A.5].

On 10 October 2000, the NSW Upper house passed the Adoption Bill 2000 which prohibits same-sex couples from adopting children [L1A.3] [R1A.4].

A lesbian or gay couple are not be able to adopt children as a couple, but may do so individually [R1A.3].

On 11 June 2008, the parliament of New South Wales (NSW) passed legislation (the Miscellaneous Acts Amendment (Same-Sex Relationships) Bill 2008) giving children born through in-vitro fertilisation (IVF) to lesbian mothers the same rights as those of heterosexual couples [R1A.2].

On 22 September 2008, the Act came in force [R1A.1].

B. Fostering

On 10 September 2010, the Adoption Amendment (Same Sex Couples) Bill passed both houses of parliament. The Bill amends stepparent adoption provisions that allow for the legal recognition of same-sex step parents and long-term foster carers [R1A.8].

Church groups are free to discriminate against homosexuals by not allowing them to become foster carers - see Courts & Tribunals.

Previously:

There is no specific prohibition on same-sex couples fostering a child however, the approved foster care agency would have to satisfy itself that it was in the best interests of the child and comply with the provisions of the Children and Young Persons (Care and Protection) Act 1988 [L1B.1].

An extensive screening process may be expected.

In October 2005, gay and lesbian couples were being urged to foster disadvantaged children in a bid to address the dire shortage of foster families across the state [R1B.1].

Courts & Tribunals

On 17 August 2011, Judge Walmsley SC in the District Court ordered the removal of sperm donor BB's name from child AB's birth certificate and that the former defacto partner AA's name be shown together with that of AC the birth mother [C2.7], [R2.6].

On 10 December 2010, the Administrative Decisions Tribunal appeals panel ruled that church groups are free to discriminate against homosexuals by not allowing gay foster carers [C2.5], [R2.5].

On 06 December 2010, Justice Palmer issued a lengthy opinion explaining the decision to approve an adoption of two children by a male same-sex couple, as a first instance of application of the recently enacted Adoption Amendment (Same Sex Couples) Act 2010, which went into effect on 15 September [C2.4].

On 01 April 2008, a gay couple were awarded $10,000 by the Administrative Decisions Tribunal after their application to become foster carers was refused by Wesley Dalmar Child and Family Care, a welfare agency linked to the Uniting Church [C2.3] [R2.3].

The agency claimed to be exempt from the Anti-Discrimination Act on religious grounds; however the Tribunal found the couple was 'unlawfully discriminated against on the grounds of homosexuality' [R2.3].

The matter is subject to an appeal before the Administrative Decisions Tribunal [R2.2].

In November 2009, the Administrative Decisions Tribunal instructed the tribunal to consider what the norm is among Wesleyans [R2.1].

Federal

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

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 and to make orders for spousal maintenance in certain circumstances.

See: FEDERAL: PROPERTY

State

The Property (Relationships) Act [L2.3] extends property and inheritance rights for same-sex couples [R2.2].

Same sex couples can make claims for property adjustment and maintenance.

Property redistribution following a breakdown of a same-sex relationship is now exempt from stamp duty.

In September 2003 the New South Wales Parliament passed a bill to refer power to the Commonwealth in relation to property and other finances for de facto couples, which would include same-sex couples [R2.1].

[Ed: The Howard Federal Government was then unlikely to accept the referred power].

State

Federal law governs most superannuation law in Australia.

See: FEDERAL - SUPERANNUATION

State law applies to state instrumentality employee plans only.

State

A. Domestic violence and harassment

The Property (Relationships) Act 1984 [L1.2], Part 5 Domestic Violence and harassment provides -

53 Granting of injunctions

A court may, on an application made to it by a party to a domestic relationship or in any proceedings between parties to a domestic relationship, whether under Part 3 or otherwise, grant an injunction:

(a) for the personal protection of a party to the relationship or of a child ordinarily residing within the same household as the parties to the relationship or who at any time ordinarily so resided,

(b) restraining a party to the relationship:

(i) from entering the premises in which the other party to the relationship resides, or

(ii) from entering a specified area, being an area in which the premises in which the other party to the relationship resides are situated,

(c) restraining a party to the relationship:

(i) from entering the place of work of the other party to the relationship, or

(ii) from entering the place of work of a child referred to in paragraph (a), or

(d) relating to the use or occupancy of the premises in which the parties to the relationship reside.

Violence or threats of violence are an assault and should be reported to the police. It is also possible to seek assistance from the Victims Referral & Assistance Service.

In some circumstances a claim for compensation may be pursued through the Court to recover damages for injuries, the death of the victim, and pain and suffering.

See also: www.anothercloset.com.au – an online resources providing information concerning domestic violence

B. Sexual harassment

Section 22A to 22J of the NSW Anti-Discrimination Act 1977 [L1.1] makes it unlawful to sexually harass in the areas of employment, commission agents, contract workers, partnerships, members of parliament, qualifying bodies, employment agencies, educational institutions, provision of goods and services, accommodation, acquiring or disposing of land, sport. There are exceptions in some areas.

The sexual orientation of the perpetrator or victim is irrelevant.

A person "sexually harasses" another person if the person:

makes an unwelcome sexual advance, or an unwelcome request for sexual favours or the person engages in other unwelcome conduct of a sexual nature in relation to the other person in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated.

It can be physical, verbal, or written and can consist of unwelcome comments about a person's sex life or physical appearance; suggestive behaviour such as leering and ogling; unnecessary physical intimacy such as brushing up against a person; sexual jokes, offensive telephone calls, photographs, reading matter or objects; sexual propositions or continued requests for dates, physical contact such as touching or fondling; indecent assault or rape (which are also criminal offences).

See also: FEDERAL - DISCRIMINATION

State

Section 3 of the NSW Compensation to Relatives Act 1897 No 31 [L1.1] provides -

"(1) Whensoever the death of a person is caused by a wrongful act, neglect, or default, and the act, neglect, or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death has been caused under such circumstances as amount in law to a serious indictable offence."

A "spouse, brother, sister, half-brother, half-sister, parent, and child of the person whose death has been so caused" may bring such and action.

Section 7 provides that -

"(4) In this Act, spouse means:

(a) a husband or wife, or

(b) the other party to a de facto relationship within the meaning of the Property (Relationships) Act 1984."