State

In South Australia the Criminal Law Consolidation Act 1935 makes it unlawful for persons under the age of 17 years to engage in consensual sexual activity [L1.2], [R1.1].

There is some latitude where a person aged 16 engaging in sexual activity may be excused provided their partner is also 16. Otherwise, a person who has sexual intercourse with a person of or above the age of twelve years and under the age of 17 years shall be guilty of an offence and liable to be imprisoned for a term not exceeding seven years.

A person who has sexual intercourse with any person under the age of twelve years shall be guilty of an offence and liable to be imprisoned for life.

If a person is in a position of care, supervision or authority over the other person the age of consent is 18 years.

State

The Reproductive Technology Act 1985 [L1.6] requires persons carrying out an artificial fertilization procedure to be licensed [s13] which licence will be subject to a condition preventing the application of artificial fertilization procedures except for the benefit of "married couples" in certain circumstances [s13(3)(b)].

"Married couple" includes two people who are not married and who "have cohabited continuously as husband and wife (emphasis added) for the immediately preceding five years" [s13(4)].

Regulation 11 of the Reproductive Technology (Code of Ethical Clinical Practice) Regulations 1995 [L1.5] made under the Reproduction Technology Act 1985 effectively seeks to limit infertility treatment to a married couple or a couple cohabiting as man and wife.

The legislation does not apply to donor insemination carried out free of charge. So private donor insemination arrangements are lawful provided no exchange of money takes place and the insemination is carried out in the privacy of your own home, hotel room, holiday villa or the like [R1.4]. However, biological parents may incur a financial liability for a child

In September 2011, Labor MLC Ian Hunter was expected to introduce the Assisted Reproductive Treatment (Assistance for Lesbians and Single Women) Amendment Bill 2011 into state Parliament, extending IVF access to lesbians and single women [R1.3].

Previously:

In September 2009, Labor MLC Ian Hunter moved an amendment to a bill that would have allowed lesbians and single women access to IVF clinics in South Australia however the Bill was defeated in the state’s Legislative Council by one vote [R1.2].

In April 1997, single women and gay couples were granted access to IVF so long as infertility is evident [R1.1].

Courts & Tribunals

In 1996, the Supreme Court found that the restrictions on the basis of marital status were invalid [R2.1].

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 - CHILDREN: ACCESS, CUSTODY, VISITATION

State

On 05 November 2011, Adelaide lawyer Erin Smyth examined how smoothly same-sex couples have been taken up as de facto couples under the law [R1.4].

On 01 June 2007, new laws came into effect in South Australia. These laws give same-sex couples recognition in much the same way as opposite-sex defacto couples.

For example, gay and lesbian couples now have legal rights and duties in areas like property ownership, wills, next-of-kin, and disclosure of interest.

The law applies to same-sex couples who live together as a couple on a genuine domestic basis for 3 years or more.

You may enter into a "Domestic Partnership Agreement" addressing living arrangements and property issues. It is advisable to consult a lawyer practising in this area of law to ensure that such an agreement is drawn up effectively (and whilst SA has yet to refer powers to the Commonwealth, in compliance with the provisions of the Federal Family Law Act).

If you are in a same-sex relationship and want to know more about how the new laws affect you, the Attorney-General's Department has produced the following information documents:

Fact Sheet – Domestic Partners
Domestic Partnership Agreements
Domestic Partnership and Children
Planning for Incapacity
Separation of Couples
Death of a Partner

also available from www.eoc.sa.gov.au.

In the absence of either a National or state-based registry, establishing documentary proof of a same-sex relationship may be advisable and at a minimum this could perhaps be achieved by both partners making a statutory declaration [R1.3].

Previously:

In November 2005, the upper house Legislative Council finally passed the Government's Same Sex Relationships Bill by a vote of 13 to 6 [R1.2]. The Bill then had to be passed by the lower house before becoming law.

In August 1996, attempts by Labour and the Democrats to have gay relationships recognised in the De Facto Relationships Bill were finally defeated [R1.1].

State

In July 2009, The Equal Opportunity Bill passed through the parliament. Amongst other matters, it is now illegal to refuse to employ someone based on who their spouse or domestic partner (gay or straight) is [R1.5].

The Equal Opportunity Act 1984 [L1.4] makes it unlawful to discriminate (that is, treat another person unfavourably) on the basis of a person's sexuality or presumed sexuality in the areas of education, accommodation, employment, provision of goods and services, clubs and association, advertising, conferral of qualifications and disposal of land.

The are some exceptions in the case of organisation administered by a religious body in some instances.

Whilst the law effectively removes discrimination against same-sex partners in a number of important areas, it still denies homosexual couples the opportunity to adopt a child or make use of reproductive technology [R1.3].

Previously:

In April 2002, the then new Labor government in South Australia committed itself to removing discrimination against same sex couples in all state laws [R1.2].

In 1986, discrimination in employment based on sexual orientation was made unlawful [R1.1].

Courts & Tribunals

In April 2010, the Equal Opportunity Tribunal ordered a restaurant that refused a blind man entry because it thought his guide dog was "gay", to pay him $1500. The tribunal was also set to hear another case where a visually impaired man was refused entry to a city restaurant because the chef was allergic to dogs [R2.1].

State

The Administration and Probate Act 1919 applies [L1.3].

When there is a Will, the estate will normally be distributed as the Will provides.

A valid Will is necessary to ensure that a same-sex partner receives any intended benefit [R1.2].

If you have been cut out of the will, or received a share that you think is too little, and you were still living with your partner on the date of his/her death, you may claim for a share or increased share of the estate. This claim will depend on your circumstances and you should see a lawyer as soon as possible to assess how strong your claim is. The claim needs to be made within six months of probate being granted.

When there is no will, but you were living together on the date of death, you will be entitled to inherit some or all of the estate. What you get depends on who else is entitled to a share.

If the deceased person left no husband, wife or children, the domestic partner is entitled to the whole estate.

If there are no children but there is both a husband or wife and a domestic partner, the two of them share the estate.

If there is no husband or wife, but the deceased person had children, the domestic partner is entitled to the first $10 000 and half of the rest of the estate. The children get the other half, which is shared equally among them.

If you are in a same-sex relationship and want to know more about how the laws affect you, the Attorney-General's Department has produced a fact sheet: Death 936kb, which is also available from www.eoc.sa.gov.au.

On 05 November 2011, Adelaide lawyer Erin Smyth examined how smoothly same-sex couples have been taken up as de facto couples under the law [R1.1].

State

The Sexual Reassignment Act 1988 [L1.2] prescribes approved procedures for sexual reassignment and governs the creation of sexual reassignment recognition certificates, enabling South Australian born transsexuals to alter the name and sex as listed on birth certificates.

The Equal Opportunity Act 1984 [L1.1] makes it unlawful to discriminate against transsexuals in the areas of education, accommodation, employment, provision of goods and services, clubs and associations, advertising, conferral of qualifications and disposal of land.

"Transexual" under the EOA " ... means a person of the one sex who assumes characteristics of the other sex." However, it may be that transvestites and cross-dressers are not covered by the Act.

Legislation

Under the Equal Opportunity Act 1984 [L1.1] it is unlawful to sexually harass another person in the same areas where DISCRIMINATION is unlawful, thoat is: employment, accommodation, education, provision of goods and services and disposal of land, clubs and club members, sport, local government. There are exceptions in some areas.

The sexual orientation of the perpetrator or victim is irrelevant.

For the purposes of [the Act], a person subjects another person to sexual harassment if he or she does any of the following acts in such a manner or in such circumstances that the other person feels offended, humiliated or intimidated:

(a) he or she subjects the other to an unsolicited and intentional act of physical intimacy;

(b) he or she demands or requests (directly or by implication) sexual favours from the other;

(c) he or she makes, on more than one occasion, a remark with sexual connotations relating to the other,

and it is reasonable in all the circumstances that the other person should feel offended, humiliated or intimidated by that conduct.

The Federal Sex Discrimination Act [L2] also makes it unlawful to sexually harass another person in similar circumstances.

State

The Public and Environmental Health Act 1987[L1.1] requires that a person infected with a controlled notifiable disease (which includes HIV) shall take all reasonable measures to prevent transmission of the disease to others.

State

Homosexuality was decriminalised in 1972 [L1.1].

National

The Federal Marriage Act 1961 governs marriage in Australia

See: FEDERAL - MARRIAGE

State

On 12 December 2010, the introduction of a same-sex marriage Bill to the Parliament on 09 February 2011 was mooted [R2.1].

[Ed: The Commonwealth (Federal) Marriage Act was amended to stipulate that marriage was the voluntary and exclusive union of one man and one woman and to exclude same-sex couples. As States have residual powers, it is argued that the States now have the power to introduce laws permitting same-sex couples to marry.]

National

The Federal Defence Act 1903 governs Military matters in Australia

See: FEDERAL - MILITARY

Parenting

On 15 December 2011, the Family Relationships (Parentage) Amendment Act 2010 commenced and de facto lesbian partners with a child conceived by medical fertilisation can now have both their names registered on the birth certificate as co-parents [D1.4], [R1.3].

On 09 June 2011, the Family Relationships (Parentage) Amendment Bill 2010 passed the lower House of Assembly 24–15 enabling recognition of non-biological same-sex parents on birth certificates of children born to same-sex couples [R1.2].

In late November 2010, the Legislative Council voted 14–5 to pass the Family Relationships (Parentage) Amendment Bill 2010 (to amend the Family Relationships Act 1975) allowing both a birth mother and non-birth mother to appear on the birth certificate of their child and providing both legal recognition and responsibilities for both parents. The House of Assembly was yet to pass the Bill [R1.1].

Adoption

The Adoption Act 1988 s12 [L2.2] provides -

(1) Subject to this section, an adoption order will not be made except in favour of two persons who have been cohabiting together in a marriage relationship for a continuous period of at least five years.

(2) An adoption order may be made in favour of two persons who have been cohabiting together in a marriage relationship for a continuous period of less than five years if the Court is satisfied that there are special circumstances justifying the making of the order.

(3) An adoption order may be made in favour of one person where -

(a) that person has cohabited with a birth or adoptive parent of the child in a marriage relationship for a continuous period of at least five years; or

(b) the Court is satisfied that there are special circumstances justifying the making of the order.

At present there is no legislation contemplated that specifically authorises the adoption of children by same-sex couples.

In November 2003, proposed laws to remove discrimination against same-sex partners denied homosexual couples the opportunity to adopt a child or make use of reproductive technology [R2.1].

Fostering

There does not appear to be any 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 Family and Community Services Act 1972 [L3.1].

An application to the Chief Executive Officer of the Department for Family and Community Services for approval as a foster parent is required [ss42-43].

An extensive screening process of a prospective foster parent may be expected to determine "that the applicant is otherwise a fit and proper person to provide foster care [s42(ga)].

State

On 01 July 2010, provisions that apply to splitting the superannuation entitlements of same and different sex de facto couples came into effect and ex partners may make a claim on the other partner's superannuation by applying to the Family Court [R1.2].

In September 2002, the Equal Superannuation Rights for Same Sex Couples Bill to amend the State Superannuation Act to allow same sex couples the same rights as heterosexual couples passed the vital second reading stage in the South Australian lower house of the Parliament [R1.1].

On 16 October 2002, the Bill had its third reading when Parliament resumed, before it went to the Legislative Council where a smooth passage was anticipated. The present status of the Bill is not known.

You should contact your super fund to find out whether you may make a binding or non-binding nomination of a beneficiary for your super and the nomination should be consistent with the terms of your Will. The super Trustee is not bound by the non-binding nomination but may exercise discretion if the nomination is consistent with the terms of your Will.

State

Where the assault or injury (or the threat of assault or injury) comes from a same-sex partner the Summary Procedure Act 1921 s99 [L1.1] provides for the making of restraining order which may impose such restraints on the defendant as are necessary or desirable to prevent the defendant acting in the apprehended manner s99(3).

Violence or threats of violence are an assault and should be reported to the police.

It is also possible to seek assistance from a Victim Contact Officer in the South Australian Police. These officers are available at Adelaide, South Coast, Elizabeth, Holden Hill, Port Adelaide and Sturt police stations.

The Gay and Lesbian Counselling Service can provide updated information on 8362 3223 Mo-Fr 1900-2200, Sa-Su 1400-1700.