Laws

Australia

NEW SOUTH WALES

Limited information only available for these topics

Access to Children
Adoption of Children
Age of Consent
Anti-Vilification
Annuities, Pensions
Artifical Insemination
Assisted Reproduction
Asylum / Refugees
Censorship
  Civil Unions
Custody of Children
Discrimination
Fostering Children
Gender Identity
Harassment
Hate Crimes
Health, Medical
HIV/Aids
  Homosexuality
Immigration
Inheritance
In Vitro Fertilisation (IVF)
Marriage
Military
Offensive Language
Parenting
  Partners
Pensions
Property
Sodomy
Superannuation
Surrogacy
Transgender, Transsexual
Violence
Wrongful Death
See also: Attorney-General's Department: Understanding Your Legal Rights PDF 215.66kb, 25 NOV 09

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Equal Love
Age of Consent Legislation/Cases/References
1.

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].

L1.2 Crimes Act 1900 Section 66C Sexual Intercourse – child between 10 and 16
R1.1 ABC News Online: Gay Age of Consent Bill Passed 27 MAY 03
Anti-Vilification, Hate Crimes Legislation/Cases/References
See also: [VIOLENCE]
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].

2.

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].

L1.2 Anti-Discrimination Act 1977
R1.1 Sydney Star Observer: How Australian Anti-Vilification Law Differs from the Hate Crimes Act 15 OCT 98
R2.2 Sydney Star Observer: Landmark HIV lawsuit 14 APR 10
R2.1 Sydney Morning Herald: Abuse by Neighbour 'Did Not Vilify Gay Man' 13 MAR 02
Annuities, Pensions, Superannuation Legislation/Cases/References
See also: [PROPERTY]
1.

State

Federal law governs most superannuation law in Australia.

See: FEDERAL - SUPERANNUATION


State law applies to state instrumentality employee plans only.

   
Assisted Reproduction Technology
Artificial Insemination, In Vitro Fertilisation
Surrogacy
Legislation/Cases/References
See also: [PARENTING]
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 motherís 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.

2.

Courts & Tribunals

On 07 June 2013, Justice Ryan in the Family Court of Australia ordered that two men in a committed same-sex relationship, one of whom was the biological father in a surrogacy arrangement, assume legal parentage of the twin children and change their surname, it being in the best interests of the children [C2.8], [R2.7].

On 04 May 2012, Justice Paul Brereton in the Supreme Court transferred guardianship of a child to two men in a de facto relationship, making them the first same-sex couple in New South Wales to be declared the parents of a baby that was born through a surrogate [C2.6], [R2.5].

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 [C2.4], [R2.3].

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.

L1.7 Status of Children Act 1996
L1.6 NSW Legislation: Surrogacy Act 2010 No 102
L1.4 NSW Legislation: Commencement Proclamation 2011 No 49 09 FEB 11
R1.3 SX News: Surrogacy bill amendment creates a 'victimless crime' 11 NOV 10
R1.2 SX News: Surrogacy laws on the table AU (NSW) 25 OCT 10
R1.1 Lesbian Parents Get New Rights in New South Wales 12 JUN 08
PinkNews.co.uk: New Rights for Lesbian Parents in New South Wales 22 APR 08
C2.8 Family Court: Mason & Mason and Anor [2012] FamCA 424 PDF 122.99kb, 07 JUN 13
R2.7 StarObserver: Landmark win for gay parents 04 JUL 13
C2.6 Supreme Court NSW: Application of MM & KF re FM [2012] NSWSC 445 PDF 94.28kb, 04 MAY 12
R2.5 The Daily Telegraph: Two dads and a surrogate create legal landmark 01 JUN 12
C2.4 District Court of New South Wales: AA v Registrar of Births Deaths and Marriages and BB [2011] NSWDC 100 PDF 122.78kb, 17 AUG 11
R2.3 BBC News: Australian sperm donor loses fight with lesbian couple 17 AUG 11
R2.2 The Australian: Court Rules State IVF Ban Invalid 29 JUL 00
C2.1 John McBain v The State of Victoria & Ors FCA 1009, 28 JUL 00
Asylum, Immigration, Refugees Legislation/Cases/References
1.

National

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

See: FEDERAL - ASYLUM, IMMIGRATION, REFUGEES

   
Censorship Legislation/Cases/References
1.

State

On 26 August 2015, New South Wales Education Minister, Adrian Piccoli, was reported to have banned every public school in the state from screening 'Gayby Baby', a documentary about children with gay parents, during school hours. Up to 50 schools across Australia, including 20 in NSW had organised a simultaneous broadcast of the film as part of a nationwide Wear it Purple day campaign of sexual inclusion in schools [R1.1].

R1.1 TheSydneyMorningHerald: NSW Education Minister bans schools from screening gay film 27 AUG 15
Children: Access, Custody, Visitation Legislation/Cases/References
1.

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

   
Civil Unions, Partners: Domestic, Registered Legislation/Cases/References
See also: [INHERITANCE] [MARRIAGE] [PROPERTY]
1.

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.

2.

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].

L1.8 Property (Relationships) Act
R1.7 Sydney Morning Herald: De factos and Gays to Get Same Legal Rights as Married Couples 26 MAY 02
R1.6 Sydney Star Observer: Massive support for register 13 MAY 10
R1.5 Southern Star: Gay NSW catches up to Victoria 12 MAY 10
R1.4 Sydney Star Observer: Libs granted conscience vote on relationship register 05 MAY 10
R1.3 Sydney Star Observer: New South Wales to get relationship register 24 FEB 10
R1.2 bnews: No to Relationship Register 23 AUG 07
R1.1 Declared Relationships Statutory Declaration - New South Wales Version PDF 38.67kb
R2.2 Minute by Lord Mayor: City of Sydney Relationships Declaration 28 JUL 04
R2.1 Sydney Star Observer: Partnership Registration for SSC 03 JUL 03
See also: CapitalQ: Gay Divorcees 23 OCT 99
Defamation, Insult, Libel, Offensive Language, Slander Legislation/Cases/References
1.

Courts & Tribunals

On 25 October 2016, Magistrate Geoffrey Bradd in the Local Court dismissed charges against a group of protesters brought before the court for saying ''f--- Fred Nile'' and calling opponents ''f---ers'' at a rally in support of same sex marriage. In dismissing the offensive language charges the Magistrate said the words were used ''to dismiss the argument against marriage equality'' rather than to cause offence [R1.1].

R1.2 TheSydneyMorningHerald: Court finds 'f--- Fred Nile' not offensive language at marriage equality rally 26 OCT 16
Discrimination Legislation/Cases/References
1.

State

Sections 49ZF to 49ZR of the NSW Anti-Discrimination Act 1997 [L1.3] provides 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).

Section 31A exempts (a) a private educational authority; or (b) a refusal or failure to accept a person's application for admission as a student by an educational authority where the educational authority administers a school, college, university or other institution which is conducted solely for students of the opposite sex to the sex of the applicant. A private members bill to remove the exemption is anticipated [R1.4].

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 [L1.3] was amended to include transgender persons.


In July 2012, the Outing Injustice: Understanding the legal needs of LGBTI communities in NSW report showed that discrimination, harassment and vilification occurs against LGBTI people in regional and remote areas, as well as in Sydney and recommended LGBTI rights receive more promotion and called for the development of a legal training package on LGBTI discrimination and homophobic vilification for solicitors [D1.2], [R1.1].


See also: FEDERAL - DISCRIMINATION

2.

Courts & Tribunals

On 26 March 2012, Administrative Decisions Tribunal deputy president Anne Britton was reported to have dismissed a case seeking to have the NSW Anti-Discrimination Act declared in breach of constitutional protections of political speech, finding that legislation aimed at protecting minority groups was not unconstitutional [R2.7], [R2.6].

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].

R1.4 ABC News: Alex Greenwich 'appalled' by loophole allowing private schools to expel gay students 07 JUL 13
L1.3 Anti-Discrimination Act 1977
D1.2 ICLC: Outing Injustice: Understanding the legal needs of LGBTI communities in NSW PDF 1.64MB, DEC 11
R1.1 StarOnline: Report shows discrimination
C2.7 Quaere ADT: Gary Burns v. John Sunol
R2.6 StarOnline: Anti-discrimination challenge fails 26 MAR 12
C2.5 NSW Case Law: Sydney Local Health Network v QY and QZ [2011] NSWCA 412, 20 DEC 11
R2.4 Sydney Morning Herald: Court rejects discrimination claims by lover over body of HIV victim 02 JAN 12
C2.3 Administrative Decisions Tribunal: OV and anor v QZ and anor (No.2) [2008] NSWADT 115 01 APR 08
R2.2 Sydney Star Observer: Churches 'Can't Discriminate' 01 MAY 08
R2.1 The Australian: Staff at Risk of AIDS Bias 04 DEC99
Gender Identity, Intersex,
Transgender, Transexual

[?]
Legislation/Cases/References
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.

2.

Courts & Tribunals

On 13 December 2016, Judge William Johnston found 15-year-old F2M transgender Lincoln was mature enough and competent to consent to having both breasts removed to make him (formerly her) look and feel more like a boy [C2.15], [R2.14].

On 29 July 2016, Judge Judith Rees found that 15-year-old F2M transgender Quinn was competent and understood the procedural risks and irreversability of a double mastectomy to precede the taking testosterone hormones to initiate her journey to becoming a boy. The teen was born female, but since age four, felt like a boy [C2.13], [R2.12].

On 02 April 2014, the High Court of Australia in “NSW Registrar of Births, Deaths and Narriages v. Norrie” ruled that New South Wales laws permit registration of a third “non specific” category of sex other than male or female. The judgment is a legal recognition by the highest court in the country that sex is no longer just male or female and could have far-reaching implications around the nation [C2.11], [R2.10].

On 12 July 2013, Justice Murphy in the Family Court of Australia ruled that Court authorisation will no longer be required when trans young people request hormone-blocking medication. These requests will continue to be evaluated through screening in collaboration with a young person's medical professionals and their parent or guardian [C2.9], [R2.8].

On 31 May 2013, an Australian person who is neither male nor female won an appeals verdict in the New South Wales Court of Appeal after the New South Wales state Registrar of Births, Deaths and Marriages issued norrie mAy-Welby with a certificate declaring norrie 'sex not specified' and then withdrew it [C2.7], [R2.6]. The case has been appealed to the High Court of Australia for hearing on 04 March 2014 [R2.5]

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].

L1.4 Anti-Discrimination Act 1977
R1.3 StarOnline: Transman wins new birth certificate 25 SEP 11
R1.2 PinkNews.co.uk: Australia is first to recognise 'non-specified' gender 11 March 2010
R1.1 PinkNews.co.uk: Australian [New South Wales] government withdraws non-specified gender status 19 MAR 10
2. Courts & Tribunals
C2.15 Judgment: Lincoln (No 2) [2016] FamCA 1071 HTML 523.13kb 13 DEC 16
R2.14 TheAustralian: Family Court allows teen, 15, to have breasts removed 'to be a boy' 29 DEC 16
C2.13 Judgment: Re: Quinn [2016] FamCA 617 PDF 847.33kb 29 JUL 16
R2.12 InternationalBusinessTimes: Australian Family Court allows 15-year-old girl to have breasts removed as part of gender reassignment journey 09 AUG 16
C2.11 Order: NSW Registrar of Births, Deaths and Narriages v. Norrie [2014] HCA 11, RTF 119.97kb, 02 APR 14
R2.10 StarObserver: Norrie wins High Court appeal 02 APR 14
C2.9 Judgment: Re: Lucy (Gender Dysphoria) [2013] FamCA 518 PDF 194.70kb, 12 JUL 13
R2.8 GNN/MCV: Court authorisation no longer needed for treatment of trans youth 06 AUG 13
C2.7 NSW Case Law: Norrie v NSW Registrar of Births, Deaths and Marriages [2013] NSWCA 145 PDF 342.92kb, 31 MAY 13
R2.6 GayStarNews: Sexless activist wins appeals verdict to recognize third sex in Australian state 31 MAY 13
R2.5 GNN/MCV: Norrie case on gender definition beyond male and female comes before High Court 04 MAR 14
C2.4 Norrie v Registrar of Births, Deaths and Marriages (GD) [2011] NSWADTAP 53, 29 NOV 11
R2.3 GNN / MCV: Sex identity ruling against 'common sense' 23 DEC 11
C2.2 Administrative Decisions Tribunal NSW: Norrie v Registry of Births Deaths and Marriages [2011] NSWADT 102, 13 MAY 11
R2.1 SX News: Tribunal upholds gender certificate decision 17 MAY 11

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Hate Crimes Legislation/Cases/References
1.

State

There is no hate crimes law in New South Wales

   
Health, Medical Legislation/Cases/References
1.

Courts & Tribunals

On 23 August 2012, the Professional Standards Committee ruled that Dr Mark Christopher James Craddock, 75, who wrote an 18-year-old patient a script for the anti-androgen therapy cyproterone acetate (Cyprostat) during a 10-minute consultation in his home in February 2008, was guilty of unsatisfactory professional conduct, severly reprimanded him and placed practice restrictions on his registration [C1.2], [R1.1].

C1.2 MCNSW: Dr Mark Christopher James Craddock 23 AUG 12
R1.1 Sydney Morning Herald: Exclusive Brethren GP banned for prescribing gay 'cure' 05 SEP 12
HIV Aids Legislation/Cases/References
See also: [ANTI-VILIFICATION]
1.

State

The NSW Crimes Act 1900 [L1.3] provides -

4 Definitions:

(1) In this Act, unless the context or subject-matter otherwise indicates or requires:

Grievous bodily harm includes:

(a) … (b)

(c) any grievous bodily disease (in which case a reference to the infliction of grievous bodily harm includes a reference to causing a person to contract a grievous bodily disease).

35 Reckless grievous bodily harm or wounding

(2) Reckless grievous bodily harm

A person who:

(a) causes grievous bodily harm to any person, and

(b) is reckless as to causing actual bodily harm to that or any other person,

is guilty of an offence.

Maximum penalty: Imprisonment for 10 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®.


The NSW Public Health Act 2010 [L1.2] provides -

79 Duties of persons in relation to sexually transmitted infections

(1) A person who knows that he or she suffers from a sexually transmitted infection is guilty of an offence if he or she has sexual intercourse with another person unless, before the intercourse takes place, the other person:

(a) has been informed of the risk of contracting a sexually transmitted infection from the person with whom intercourse is proposed, and

(b) has voluntarily agreed to accept the risk.

Maximum penalty: 50 penalty units.

(3) It is a defence to any proceedings for an offence under this section if the court is satisfied that the defendant took reasonable precautions to prevent the transmission of the sexually transmitted infection.


From 01 September 2012, under the new arrangements, people with HIV who do not disclose their HIV status to sexual partners will be able to argue in their defence if they took 'reasonable precautions' to prevent transmitting the virus. The defence only applies under Section 79 (3) of the Public Health Act 2010 and does not apply to the Crimes Act, where people who pass on HIV can be charged with causing grievous bodily harm, with a penalty of up to 10 years' jail [R1.1].

2.

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].

L1.3 NSW Crimes Act 1900
L1.2 NSW Public Health Act 2010
R1.1 GNN/ MCV: 'Reasonable precautions' defence welcomed 31 AUG 12
R2.2 GayNZ: Compo for positive man denied treatment 08 DEC 10
R2.1 Southern Star: $750,000 payout for HIV infection 30 APR 10
Homosexuality, Sodomy Legislation/Cases/References
See also: [HEALTH, MEDICAL]
1.

State

On 24 November 2014, the Criminal Records Act 1991 (the 'Act') was amended to allow historical homosexual offences to be extinguished. [D1.8], [R1.7], [R1.6].

On 16 October 2014, the lower house Legislative Assembly passed the 'Criminal Records Amendment (Historical Homosexual Offences) Bill 2014'. When passed by the upper house Legislative Council and assented to the Bill will enable people who were prosecuted for engaging in consenting homosexual sex to have the convictions expunged [R1.5].

On 14 May 2014, the Crimes Amendment (Provocation) Bill 2014 passed the legislature and awaits assent. The Bill removes the legal foundation for the use of the Homosexual Advance Defence, a common-law creation of the partial defence of provocation, in cases involving a non-violent sexual advance [R1.4].

On 26 March 2014, a Bill passed the Legislative Council (upper house) to amend the Crimes Act so that defendants in NSW murder cases can no longer use the "gay panic" defence, allowing charges against an accused to be lessened from murder to manslaughter by claiming an unwelcome, non-violent sexual advance from a person of the same sex. It has yet to pass the (lower house) Assembly [R1.3].

On 08 October 2012, it was reported that the NSW government had no plans to expunge the criminal records of people convicted under sodomy laws active in the state till the mid-80s following calls for law reform [R1.2].

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

D1.8 FactSheet: Criminal Records Amendment (Historical Homosexual Offences) Bill 2014 PDF 302.19kb, 06 FEB 15
R1.7 NSW Government Justice: Extinguishment of historical homosexual convictions
R1.6 SameSame: New South Wales passes bill to extinguish historic gay sex convictions 23 OCT 14
R1.5 TheGuardian: NSW passes legislation expunging historical convictions for gay sex 16 OCT 14
R1.4 StarObserver: New South Wales "gay panic" defence laws officially abolished 14 MAY 14
R1.3 StarObserver: NSW Government ditches 'gay panic' defence 26 MAR 14
R1.2 Star Observer: No plans to expunge sodomy convictions 08 OCT 12
R1.1 Sydney Star Observer: Concerns Over Pre 1984 Offences 07 SEP 00
Inheritance Legislation/Cases/References
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].

R1.4 PinkNews.co.uk: Lesbian Parents Get New Rights in New South Wales 12 JUN 08
L1.3 Family Provision Act 1982
L1.2 Wills, Probate & Administration Act 1898
R1.1 GayLawNet®: Incapacity, Wills, Death & Inheritance
Marriage Legislation/Cases/References
See also: [PARTNERS]
1.

Federal

The Federal Marriage Act 1961 governs marriage in Australia

See: FEDERAL - MARRIAGE

2.

State

On 13 August 2014, the 2nd reading debate on the private member's Relationships Register Amendment (Recognition of Same-sex and Gender-diverse Relationships) Bill 2014 was adjourned. The Bill if passed into law, would recognize gay couples who have married abroad in places where same-sex unions are legal [R2.6].

On 14 November 2013, Members of the Upper House state Legislative Council (MLCs) voted 21-19 against the Same-Sex Marriage Bill 2013 [R2.5].

On 31 October 2013, the Same-Sex Marriage Bill 2013 was introduced to the Upper House Legislative Council. Debate was interrupted and adjourned to November. A vote is expected on 14 November [L2.4], [R2.3].

On 14 February 2013, The NSW cross party working group for marriage equality presented the consultation draft State Marriage Equality Bill 2013 to the Parliamentary Committee Inquiry into Same sex marriage law. The Bill does not compel religious ministers to perform same-sex ceremonies and states that dissolution of marriages and property disputes will be governed by existing law [L1.2], [R1.1].

R2.6 Parliament of NSW: Relationships Register Amendment (Recognition of Same-sex and Gender-diverse Relationships) Bill 2014 (Accessed 15 NOV 14)
R2.5 GayStarNews: Vote on gay marriage fails in first Australian state 14 NOV 13
L2.4 Bill: Same-Sex Marriage Bill 2013 PDF 134.19kb, 30 OCT 13
R2.3 GNN/MCV: NSW Same-Sex Marriage Bill adjourned 01 NOV 13
L2.2 Consultation Draft: State Marriage Equality Bill 2013 PDF 370.64kb, 13 FEB 12
R2.1 GNN / MCV: NSW draft bill on equal marriage released 14 FEB 13
Military Legislation/Cases/References
1.

National

The Federal Defence Act 1903 governs Military matters in Australia

See: FEDERAL - MILITARY

   
Parenting, Adoption, Fostering Legislation/Cases/References
1.

State

On 11 June 2008, the Miscellaneous Acts Amendment (Same-Sex Relationships) Act 2008 was assented to, giving children born through in-vitro fertilisation (IVF) to lesbian mothers the same rights as those of heterosexual couples, and permitting two parents of the same sex to both be named on a childís birth certificate. The legislation operates retrospectively [L1.2], [R1.1].


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 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].

2.

Courts & Tribunals

On 10 January 2014, Family Court of Australia Judge Watts ordered that FtM transgender Mr Brown have permission to spend Father's Day with his former lover's 7-year-old daughter B [C2.13], [R2.12].


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 [C2.11], [R2.10].


On 04 May 2012, Justice Paul Brereton in the Supreme Court transferred guardianship of a child to two men in a de facto relationship, making them the first same-sex couple in New South Wales to be declared the parents of a baby that was born through a surrogate [C2.9], [R2.8].

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].

L1.2 Miscellaneous Acts Amendment (Same-Sex Relationships) Bill 2008 PDF 718.40kb, 12 JUN 08
R1.1 Lesbian Parents Get New Rights in New South Wales 12 JUN 08
  Adoption
R1A.8 SameSame: NSW Adoption Bill passes 09 SEP 10
R1A.7 GayLawNet®: NSW Parliament passes law permitting same-sex couples to adopt 02 SEP 10
R1A.6 PinkNews.co.uk: New South Wales government upholds gay adoption ban 07 JAN 09
R1A.5 Sydney Star Observer: Gay adoption report delayed 05 MAY 09
L1A.4 Adoption of Children Act 1965 - Sect 19
R1A.4 Sydney Star Observer: Gay & Lesbian Adoption Denied 12 OCT 00
R1A.3 PinkNews.co.uk: Lesbian Parents Get New Rights in New South Wales 12 JUN 08
R1A.1 MCV: Lesbian Parents Recognised 25 SEP 08
  Fostering
L1B.1 Children and Young Persons (Care and Protection) Act 1988
R1B.1 The Sun-Herald: Same-sex couples enlisted to solve foster-parent crisis 02 OCT 05
  Courts & Tribunals
C2.13 Orders: Brown v. Phillips [2014] FamCA 9 PDF 158.68kb, 10 JAN 14
R2.12 Herald Sun: Judge grants former lesbian who is now a man access to ex-lover's child 31 JAN 14
C2.11 Judgment: Dent & Rees [2012] FMCAfam 1303, 19 DEC 12
R2.10 News.com: Court orders same-sex parents' names on birth certificates 28 DEC 12
C2.9 Supreme Court NSW: Application of MM & KF re FM [2012] NSWSC 445 PDF 94.28kb, 04 MAY 12
R2.8 The Daily Telegraph: Two dads and a surrogate create legal landmark 01 JUN 12
C2.7 District Court of New South Wales: AA v Registrar of Births Deaths and Marriages and BB [2011] NSWDC 100 PDF 122.78kb, 17 AUG 11
R2.6 BBC News: Australian sperm donor loses fight with lesbian couple 17 AUG 11
C2.5 Administrative Decisions Tribunal: OW & OV v Members of the Board of the Wesley Mission Council [2010] NSWADT 293 10 DEC 10
R2.5 The Herald Sun: Church free to ban gay foster parents 27 DEC 10
C2.4 Re William and Jane, [2010] NSWSC 1435, 06 DEC 10
C2.3 Administrative Decisions Tribunal of NSW: OV and Anor v QZ and Anor (No.2) [2008] NSWADT 115 01 APR 08
R2.3 MCV: Fostering Focus 01 MAY 08
R2.2 Sydney Star Observer: Gay adoption report delayed 05 MAY 09
R2.1 Sydney Star Observer: ADT rules against gay foster parents 10 NOV 09
Property Legislation/Cases/References
See also: [INHERITANCE]
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

2.

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].

L2.3 Property (Relationships) Act
R2.2 GayLawNet®: Gay Divorcees 22 OCT 99
R2.1 ABC News: New South Wales Passes Responsibility for De Facto Disputes to the Commonwealth 17 SEP 03
Violence: Bullying, Harassment, Domestic Violence Legislation/Cases/References
1.

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

2.

Courts & Tribunals

On 08 February 2016, it was reported that NSW Magistrate J Wahlquist dismissed charges of 'using a carriage service to menace, harass and offend' against Aaron Manahan (stage name Aaron Manhattan) finding the police failed to comply with Section 23V of the Commonwealth Crimes Act concerning the tape-recording of confessions requiring an independently verified admission from the accused. Police allegedly harassed and threatened Manahan over several days because he wouldn't sign a statement [R2.5].

On 15 October 2013, the New South Wales Administrative Decisions Tribunal found former Katter's Australian Party candidate Tess Corbett's remarks equating homosexuality with paedophiles demonstrated intolerance of homosexuals and “incited hatred” towards the gay community, ordering her to make a public apology [C2.4], [R2.3].

On 07 August 2013, the Administrative Appeals Tribunal ruled that the bashing of LGBT activist Simon Margan by Danny Manias who had previously harassed him over his sexuality was not an act of vilification, though the comments he made earlier constituted unlawful homosexual vilification. The ADT ordered that Manias take out a quarter page advertisement in a gay newspaper apologizing for the comments to Margan who Manias must also pay $1,000 [C2.2], [R2.1].

L1.2 Property (Relationships) Act 1984
L1.1 Anti-Discrimination Act 1977
R2.5 GayNewsNetwork: Drag star Aaron Manhattan wins out in court 08 FEB 16
C2.4 Reasons for Decision: Burns v Corbett [2013] NSWADT 227, 15 OCT 13
R2.3 GNN/MCV: Disgraced political candidate ordered to apologise for 'vilifying' homosexuals 18 OCT 13
C2.2 Decision: Margan v Manias [2013] NSWADT 177 PDF 143.71kb, 07 AUG 13
R2.1 GayStarNews: Australian court finds bashing of gay activist not vilification 07 AUG 13
See also: www.anothercloset.com.au
Wrongful Death Legislation/Cases/References
1.

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."

L1.1 Compensation to Relatives Act 1897 No 31

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