Laws

Australia

VICTORIA

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
Bullying
  Civil Unions
Custody of Children
Discrimination
Estate, Will
Fostering Children
Gender Identity
Harassment
Hate Crimes
Health, Medical
  HIV/Aids
Homosexuality
Immigration
Inheritance, Succession
Insurance
Intersex
In Vitro Fertilisation (IVF)
Marriage
Military
  Parenting
Partners
Privacy
Property
Sodomy
Superannuation
Surrogacy
Transgender, Transsexual
Violence
Wrongful Death

See also: The Law Handbook
Legal Online – Relationships – Same Sex
No to Homophobia
Statute Law Amendment (Relationships) Act 2001 - Summary

The Charter of Human Rights and Responsibilities Act 2006 came fully into force on 01 January 2008 and all Victorian legislation introduced to the Parliament and affecting persons must now include a statement of compatibility with the Charter and all statutory provisions must be interpreted in a way that is compatible with human rights. Parliament may declare an Act has effect despite being incompatible with the Charter.

Please read the Disclaimer

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

State

Consensual sex between two persons aged 16 is lawful.

Section 46(1) of the Victorian Crimes Act 1958 [L1] provides that "A person must not take part in an act of sexual penetration with a child aged between 10 and 16 to whom he or she is not married."

There is some latitude where persons under 16 years engaging in consensual sexual activity may be excused provided there is not more than a two-year age differential between them [s46(2)] and that neither person is younger than 10 years [s45].

There are special provisions in the case where a person -

  • is in a position of care, supervision or authority over the other [s48]
  • has impaired mental functioning [s51]
  • is a worker in a residential facility approved for mental health service or for the purpose of providing residential services to intellectually disabled people [s52].
L1 Crimes Act 1958
Annuities, Pensions, Superannuation Legislation/Cases/References
See also: [ESTATES]
1.

Federal

The Federal Superannuation Act 1990 [L2.1] governs most non-government superannuation schemes in Australia.

See: FEDERAL – SUPERANNUATION

2.

State

On 05 June 2001, the Statute Law Amendment (Relationships) Bill passed the Victorian Parliament replacing the definition of "de facto spouse" with a new definition of "domestic partner" [L2.3].

On 28 June 2001, the Statute Law Amendment (Relationships) Act 2001 was proclaimed [L2.2] and came into part operation on 23 August 2001 [L2.1].

Domestic partners in same-sex relationships (SSRs) now (with some relatively minor exceptions) effectively have the same rights (and obligations) to married and de facto couples under the following state superannuation schemes:

Country Fire Authority Act 1958
Emergency Services Superannuation Act 1986
Parliamentary Salaries and Superannuation Act 1968
State Employees Retirement Benefits Act 1979
State Superannuation Act 1988
Superannuation (Portability) Act 1989
Transport Superannuation Act 1988

L1.1 Superannuation Act 1990 (C'wlth)
L2.3 Statute Law Amendment (Relationships) Act 2001
L2.2 Victorian Government Gazette No. G26 page 1428 PDF 568.47kb, 28 JUN 01
L2.1 Victorian Government Gazette No. G34 page 1927 PDF 598.67kb, 23 AUG 01
Anti-Vilification Legislation/Cases/References
See also: [HATE CRIMES]
1.

State

Victoria has no GLBTI anti-vilification laws

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

R1 Sydney Star Observer: How Australian Anti-Vilification Law Differs from the Hate Crimes Act 15 OCT 98
Assisted Reproduction Technology
Artificial Insemination, In Vitro Fertilisation
Surrogacy
Legislation/Cases/References
See also: [PARENTING]
1.

State

On 11 December 2008, the Assisted Reproductive Treatment Act 2008 was assented to [L1.1], giving single women and lesbians access to the technology in Victoria and allowing a non-biological partner to be included on a child's birth certificate as "parent" [R1.1].

Section 147 of The Act amended the Status of Children Act 1974 giving same-sex partners and "commissioning parents" of surrogate children legal parenting rights for the first time (Parts III, IV) [R1.1].

The Act has a default commencement date of 1 January 2010 (Section 2 (3)) [L1.1].

In June and July 2009, it was reported that delays in mandatory police checks will mean that same-sex couples requiring IVF treatment could be waiting five months [R1.2].

Previously:

In December 2008, the Assisted Reproductive Treatment (ART) Bill was passed by the upper house [R1.1].

In October 2008, the lower house passed the Assisted Reproductive Treatment (ART) Bill [R1.3].

In February 2008, the State Government adopted most of the Victorian Law Reform Commission's recommendations for assisted reproductive technology and surrogacy [R1.4], [R1.5]

In 2008, the legislation was expected to be introduced into Parliament giving some same-sex couples and single women more access to in-vitro fertilisation and surrogacy.


Section 59 of the Infertility Treatment Act 1995 provides -

"A person must not make, give or receive or agree to make, give or receive a payment or reward in relation to or under a surrogacy agreement or the arrangement of a surrogacy agreement or an arrangement to act as a surrogate mother.

"Penalty: 240 penalty units ($24,000) or 2 years imprisonment or both [L1.2].

It is also unlawful to advertise willingness to enter into a surrogacy agreement or seek a person willing to enter into such an agreement - s60 [L1.2].


In August 2004, under new guidelines The Royal Women's Hospital allowed assistance for lesbians and single women wanting to become pregnant. "Socially infertile" women - those unwilling or unable to have sexual intercourse with men - would not have access to IVF, or to donor sperm already held by the clinic, but a sperm donor can now be screened and counselled for the purposes of self-insemination by the woman [R1.6]

In August 2001, the Monash IVF Standards Committee has decided to consider and HIV positive women for IVF treatment [R1.7].

In February 2001, the Infertility Treatment Authority (ITA) narrowly interpreted the Federal Court ruling to only allow such treatment to single women who are incapable of 'natural' conception, thus apparently distinguising between 'medical infertility' and 'social infertility' [R1.8].

2.

Courts & Tribunals

On 11 June 2013, Justice Cronin in the Family Court of Australia ruled that a known sperm donor to a single woman, who always wished to be just a “sperm donor” was a “parent”. Justice Cronin stated that the man was the “parent” in part because he was the biological parent, and that there were no statutory rules saying that he was not the parent [C2.6], [R2.5].

In January 2011, Justice Paul Cronin in the Family Court of Australia at Melbourne granted full parental status for the non-genetic father saying, "In this case, the children do not have the benefit of a mother, but they have the good fortune of having two fathers" [R2.4].

In April 2002, 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 [R2.1].

In August 2000, the Federal Howard Government mooted the amendment of the Sex Discrimination Act to overturn the effects of the judgment. It is unlikely that the Federal Senate will pass the Bill [R2.2].

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 [C2.1], R2.3].

L1.1 Assisted Reproductive Treatment Act 2008
L1.2 Infertility Treatment Act 1985 s8 (VIC)
L1.3 Sex Discrimination Act 1984 (C'wlth)
C2.1 John McBain v The State of Victoria & Ors - FCA 1009 (28 JUL 00)
R1.1 MCV: Historic ART Bill Passed in Vic AU (VIC) 11 DEC 08
R1.2 MCV: IVF setbacks 23 JUN 09
MCV: IVF police checks unfair 08 SEP 09
R1.3 MCV: ART Passes Lower House 16 OCT 08
R1.4 Victorian Law Reform Commission: Reform Targets Children's Best Interests 07 JUN 07
R1.5 Stonnington Leader: Equal-rights Parenting on Legislative Agenda 05 FEB 08
R1.6 Melbourne Star: Pregnancy Breakthrough 05 AUG 04
R1.7 Sydney Xpress News: IVF Decision Lauded 16 AUG 01
R1.8 Melbourne Community Voice: IVF Reform - No Change for Lesbians 16 FEB 01
C2.6 Reasons for Judgment: Groth & Banks [2013] FamCA 430 PDF 211.44kb, 11 JUN 13
R2.5 qNews: Sperm Donors Beware 27 JUN 13
R2.4 Herald Sun: Twins victory for gay Melbourne couple 22 JAN 11
R2.1 ABC News OnLine: Court Ruling Grants Singles and Lesbians Access to IVF 18 APR 02
R2.2 GayLawNews™: IVF Court Victory May be Short Lived" 01 AUG 00
R2.3 The Australian: Court Rules State IVF Ban Invalid 29 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
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

2.

Courts & Tribunals

On 08 January 2014, Judge Judith Small in the Federal Circuit Court was reported to have granted sperm donor dad access to his daughter despite the objections of her lesbian parents. Because the girl's parents are in a defacto relationship, the man is not legally considered the girl's parent, despite being her biological father and the women have sole parental responsibility for her [R2.1].

See: FEDERAL: ACCESS TO CHILDREN
FEDERAL: CUSTODY OF CHILDREN
R2.1 Herald-Sun: Melbourne sperm donor dad gets access to daughter despite objections of lesbian parents 08 JAN 14
Civil Unions, Partners: Domestic, Registered Legislation/Cases/References
1.

State

In December 2012, gay rights advocate Dennis Altman discovered that Victorian law denies him being recognised as Anthony Smith's de-facto partner as death certificates in Victoria have no provision to recognise the deceased as having been in a de-facto relationship [R1.16].


In January 2010, the Department of Justice's Births Deaths and Marriages reportedly would no longer allow couples to register their relationships unless both are Australian citizens or have permanent resident status [R1.15].


As from 01 December 2008, gay and de facto couples are able to formally register their relationships in Victoria after the Legislative Assembly passed the Relationships Act 2008 on 13 March 2008 [L1.14], [R1.13].

Couples apply to register their partnership through the Registry of Birth Deaths and Marriages, click on "Relationship Registration" read the information provided and download the "Application to register a domestic relationship" [a PDF document of 1,978 KB, 6 pages].

Previously:

In April 2008, the Relationships Bill was passed in the upper house 29–10 [R1.12].

See:Relationships Bill 2007 [L1.11] and
Relationships Bill 2007 Explanatory Memorandum [L1.10].

In February 2008, the Relationships Bill was scheduled to be debated sometime between the 26th and 29th [R1.9].

In December 2007, the Relationsdhips Bill was introduced into State Parliament [R1.8].

In April 2007, Premier Steve Bracks announced that the state government would move to introduce a register for same-sex and defacto couples plus people in long-term care giving relationships before years' end [R1.7].


On 28 June 2001, the Statute Law Amendmentment (Relationships) Act 2001 [L1.6] was proclaimed [L1.5] replacing the definition of 'defacto spouse' with 'domestic partner' in Victorian legislation affecting property related benefits, compensation schemes, (state) superannuation schemes, health related legislation, criminal law legislation, consumer and business legislation, the Equal Opportunity Act 1995 and Guardianship and Administration Act 1986 [R1.4].

For most purposes, the "domestic partner" of a person means a person to whom the person is not married but with whom the person is living as a couple on a genuine domestic basis (irrespective of gender).

The Statute Law Amendmentment (Relationships) Act 2001 did not create any form of marriage or registered domestic partnership.

Same-sex couples who choose not to register their relationship under the Relationships Act 2008 should ensure that they at least make an appropriate statutory declaration to establish minimal proof that they are or were in a same-sex relationship [R1.3].

Unregistered same-sex couples may not make a claim for adjustment of property interests or maintenance unless the domestic partners have lived together in the relationship for a period of at least 2 years [Section 42 (2) (c)]

On 23 August 2001, the Statute Law Amendment (Relationships) Act 2001 came into part operation [L1.2].

On 05 June 2001, The Statute Law Amendment (Relationships) Bill passed the Victorian Parliament replacing the definition of "de facto spouse" with a new definition of "domestic partner" [R1.1].

See also 2. Cities & Towns below.

2.

Cities & Towns

In October 2009, the City of Melbourne Relationship Declaration Register was voted back in by the Melbourne City Council. The Council register only needs one partner to be a permanent resident of Victoria while the Victorian (State) register demands both partners reside permanently. Another benefit of registration ($80) is that it "may be used as one of the pieces of information supplied to affirm a relationship, when one partner wishes to apply for permanent residency in Australia" [R2.4].

On 02 April 2007, the City of Melbourne launched its Relationship Declaration Register [R2.3]. Whilst being now superceded by the Relationships Act 2008, a relationship declaration did not confer legal rights in the way marriage or registered domestic partership does. A previously made declaration may however be used in legal proceedings brought pursuant to the Relationships Act 2008, Property Law Act 1958, the Administration and Probate Act 1958 or other legislation involving domestic partnerships.

Previously:

In April 2006, the Melbourne City Council announced the proposal to set up a "relationship register" for same-sex couples to publicly declare their partnerships [R2.2].


In March 2007, it was mooted that the City of Moreland would introduce a same-sex relationships register however apparently nothing eventuated [R2.1].

3.

Courts & Tribunals

In April 2010, the Victorian Registry of Births, Deaths and Marriages said it will drop its appeal against a Victorian Civil and Administrative Tribunal (VCAT) decision allowing an interstate couple to register their relationship in Victoria [R3.3].

Previously:

In March 2010, the Victorian Registry of Births, Deaths and Marriages reportedly would appeal a Victorian Civil and Administrative Tribunal (VCAT) decision to allow an interstate couple to register their same-sex relationship in Victoria (see below) [R3.2].

In February 2010, the Victorian Civil and Administrative Tribunal (VCAT) ordered the Register of Births, Deaths and Marriages to register a gay couple's previously rejected application to register their relationship. Whilst the Act requires that both partners must be "domiciled or ordinarily resident" in Victoria (Section 6 (a)), VCAT member Don O'Halloran said, "what is critical is that the applicants were physically present in Victoria when they formed their respective intentions to make their home indefinitely in Victoria" [R3.1].

State
R1.15 MCV: Foreign partners alienated by register 20 JAN 10
L1.14 Relationships Act 2008
R1.13 The Age: Victoria to Recognise Gay Couples 13 MAR 08
R1.12 MCV: VIC Register Anger 17 APR 08
L1.11 Relationships Bill 2007
L1.10 Relationships Bill 2007 Explanatory Memorandum [L1.1].
R1.9 bnews: No Compulsion to Celebrate 07 FEB 08
R1.8 The Age: Brumby Silent on View of Gay Marriage 06 DEC 07
R1.7 Herald Sun: Bracks Wins Gay Plaudits 24 APR 07
L1.6 Statute Law Amendmentment (Relationships) Act 2001
L1.5 Victorian Government Gazette No. G26 page 1428 PDF 568.47kb, 28 JUN 01
R1.4 Statute Law Amendment Relationships) Act 2001: List of Legislation Affected
R1.3 Declared Relationships Statutory Declaration - Victorian Version PDF 39kb
L1.2 Victorian Government Gazette No. G34 page 1927 PDF 598.67kb, 23 AUG 01
R1.1 GayLawNet®: Victorian Same-Sex Couples Gain Rights 08 JUN 01
Cities & Towns
R2.4 MCV: MCC register here to stay 22 OCT 09
City of Melbourne: Relationship Declaration Register (Accessed 22 OCT 09
R2.3 The Age: Couples Sign Up 05 APR 07
R2.2 The Age: City to Open Register for Same-sex Couples 18 NOV 06
R2.1 MCV: Moreland Drags Heels on Gay Register 08 MAR 07
See also: Law Institute Journal: Two by Two by Adiva Sifris and Ronli Sifris (2009) 83(1/2) LIJ, JAN/FEB 2009 at 50 et seq Locked
Courts & Tribunlas
R3.3 Southern Star: Registry to drop couple appeal 06 APR 10
R3.2 Southern Star: Registry to appeal VCAT ruling 10 MAR 10
R3.1 Southern Star: Interstate couple get registered in Victoria 04 MAR 10
Discrimination Legislation/Cases/References
See also: [HARASSMENT] [HIV / AIDS]
1.

State

On 01 June 2011, the Equal Opportunity Amendment Bill 2011 passed in the House of Assembly and must now be passed in the upper house Legislative Council [R1.12].

On 05 May 2011, the Equal Opportunity Amendment Bill 2011 was introduced which, if passed, will reinstate laws allowing religious organisations to only employ staff that share or conform to their beliefs and limit the powers of Victoria's Equal Opportunity Commission to investigate discrimination claims [R1.11].

Previously:

On 15 April 2010, the Upper House passed the Equal Opportunity Bill in a 22–18 vote. The new legislation will come into effect in August 2011 and allow the Victorian Equal Opportunity and Human Rights Commission (VEOHRC) to investigate at will and require religious employers to prove why they need to discriminate on the basis of marital status, sexuality or gender [R1.10].


On 01 January 2008 the Charter of Human Rights and Responsibilities Act came into force. This Act prohibits discrimination based on sexual orientation [L1.9].


On Wednesday 06 September 2000 at 9:33 p.m., the Equal Opportunity (Gender Identity and Sexual Orientation) Bill finally passed the Legislative Council [R1.8].

The Bill amended the Equal Opportunity Act 1995 [L1.7] making it unlawful to discriminate on the basis of a person's sexual orientation (previously "lawful sexual activity") in the areas of employment, accommodation, education, provision of goods and services and disposal of land, clubs and club members, sport and local government.

The Bill also makes it unlawful to discriminate against transgender people in Victoria by and adding 'gender identity' to the list of attributes under which discrimination is prohibited.


The Federal Disability Discrimination Act 1992 [L1.6] 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, as a result of an Australian High Court ruling in December 1999 [R1.5], employees may in certain circumstances be liable to discharge if they are HIV positive.


The Federal Sex Discrimination Act 1984 [L1.4] makes it unlawful to discriminate on the basis of a person's sex (not "sexual orientation"), marital status, or pregnancy or to sexually harass a person or dismiss a person from their job because of their family responsibilities, in similar circumstances to the foregoing, including participating in Commonwealth programs.


On 27 September 2009, Attorney-General Rob Hulls announced that religious groups would no longer be able to discriminate on the grounds of race, disability, age, physical features, political belief or activity – and breastfeeding. However, under the proposed changes to the Equal Opportunity Act, religious groups can still discriminate on the basis of sexuality and marital status [R1.3].

In June 2009, beyondblue, Australia's national depression body, reportedly had abandoned the gay community and ignored its high rates of suicide, self-harm and mental illness [R1.2].

In February 2008, the Greens pushed for an end to exemptions in the Equal Opportunity Act which allow religious schools and small businesses to discriminate on the grounds of sexuality, gender identity, and other grounds [R1.1].

2.

Courts & Tribunals

On 23 May 2014, a Christian group were reported to have filed an appeal in the High Court of Australia against the 16 April 2014 Cobaw Community Health Services v Christian Youth Camps Ltd & Anor judgment [R2.7].

On 16 April 2014, the Supreme Court of Victoria upheld 2-1 a Victorian Civil and Administrative Tribunal decision that a youth group (Cobaw Community Health Services) was discriminated against by Christian Youth Camps Ltd - who refused access to accommodation due to the sexual orientation of its attendees - and exemptions in the Equal Opportunity Act 1995 that allow religious groups to discriminate in certain circumstances did not apply [C2.6], [R2.5].

Late November 2010, the Christian Brethren owned Christian Youth Camps Ltd (CYC) lodged an appeal against the Victorian Civil and Administrative Tribunal (VCAT) decision that found it had discriminated against WayOut – a rural youth group for same-sex attracted young people – in refusing them accommodation in 2007 [R2.4].

Previously:

On 08 October 2010, Judge Felicity Hampel in the Victorian Civil and Administrative Tribunal upheld a complaint from a gay youth support group after a Christian youth camp refused them accommodation, claiming it was against their position on homosexuality, and ordered they pay $5000 compensation [C2.3], [R2.2].


In July 2009, the Victorian Civil and Administrative Tribunal ruled that a company specialising in lesbian parties was allowed to ban men from its events [R2.1].

R1.12 StarObserver: Baillieu Govt strips rights protections 02 JUN 11
R1.11 MCV: Expert warns of equal rights rollback 17 MAY 11
R1.10 MCV: Discrimination laws get tougher in Victoria 21 APR 10
L1.9 Charter of Human Rights and Responsibilities Act
R1.8 Melbourne Star Observer: Parliament Passes Gender Identity Bill 08 SEP 00
L1.7 Equal Opportunity Act 1995 s6(d)
L1.6 Disability Discrimination Act 1992 Part 2 ss15-58
R1.5 The Australian: Staff at Risk of AIDS Bias 04 DEC 99
L1.4 Sex Discrimination Act 1984
R1.3 MCV: State Government 'sells out LGBT community' 29 SEP 09
R1.2 The Sunday Age: Gays 'ignored' by beyondblue 28 JUN 09
R1.1 The Sunday Age: Green Signal Attack on Work Discrimination 03 FEB 08
R2.7 TheAustralian: Appeal to clarify religious standing 23 May 14
C2.6 Judgment: Cobaw Community Health Services v Christian Youth Camps Ltd & Anor [2014] VSCA 75 16 APR 14
R2.5 GNN/MCV: LGBTI youth win discrimination case against Christian group 16 APR 14
R2.4 Star Observer: Brethren appeal VCAT decision 01 DEC 10
C2.3 VCAT: Cobaw Community Health Services Limited v. Christian Youth Camps Limited and Another [2010] VCAT 1613, 08 October 2010 Word
R2.2 PinkNews: Australian LGBT support group wins legal pay-out 08 OCT 10
R2.1 PinkNews.co.uk: Men banned from lesbian event in Australia 23 JUL 09
See also: FEDERAL: DISCRIMINATION

GayLawNet®™ "Exclusive" Sponsorship of this page IS available
Estates, Inheritance, Property, Succession, Wills Legislation/Cases/References
1.

Federal

On 01 March 2009, the Family Law Amendment (De facto Financial Matters and Other Measures) Act 2008 (Cth) commenced operation [R1.1].

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 [R1.1].

2.

State

On 30 June 2010, the Superannuation Legislation Amendment Bill (Act No. 40/2010) was assented to, amending existing law to entitle same-sex partners of judges, police officers and emergency services personnel who are employees of the state to equal treatment of their super with regard to their same-sex partners, specifically with regard to reversionary pensions (pensions that continue to be paid to a beneficiary after the death of the original recipient) [R2.8].

On 28 June 2001 the Statute Law Amendment (Relationships) Act 2001 was proclaimed [L2.7] and came into part operation on 23 August 2001 [L2.6]. The last part of the Act came into force 8 November 2001.

On 05 June 2001, the Statute Law Amendment (Relationships) Bill passed the Victorian Parliament replacing the definition of "de facto spouse" with a new definition of "domestic partner" [L2.5].

As a consequence, domestic partners in same-sex relationships (SSRs) now effectively have the same rights (and obligations) to married and de facto couples under the following property related legislation:

Administration and Probate Act 1958 (from 08NOV01)
Duties Act 2000
First Home Owner Grant Act 2000
Land Act 1958
Land Tax Act 1958
Landlord and Tenant Act 1958
Perpetuities and Accumulations Act 1968
Property Law Act 1958 (from 08NOV01)
Residential Tenancies Act 1997
Retail Tenancies Reform Act 1998
Sale of Land Act 1962
Stamps Act 1958 (from 08NOV01)
Wills Act 1997.

In terms of resolving disputes concerning property it is still considered advisable to consider putting in place property, co-ownership or cohabitation agreements or establishing a trust [R2.4].

Establishing proof that an unregistered same-sex couple are or were in a SSR may also be advisable and at a minimum this could perhaps be achieved by both partners making an appropriate statutory declaration [R2.3].

Other problems may arise if you are seriously incapacitated [R2.2].


The Statute Law Amendment (Relationships) Act 2001 [L2.3/4] (the Act) amended the Victorian Administration and Probate Act 1958 [L2.2/3] with respect to persons who die intestate (without a will).

As from 08 November 2001: if a person dies intestate (without a Will) as to an interest in the person's shared home, the person's domestic partner may elect to acquire the interest at its value at the date of the person's death.' [Section 37A].

Also, a registered domestic partner (or an unregistered domestic partners of two years duration) is entitled to an interest in an intestate's residuary estate. Where the deceased leaves a spouse and a domestic partner, entitlements are regulated as follows [Section 51A]:

Duration of Domestic Partnership Spouse's entitlement Domestic partner's entitlement
2-4 yrs two-thirds one-third
4-5 yrs half half
5-6 yrs one-third two-thirds
6 yrs or more none all

A validly executed Will is still necessary to ensure that a same-sex partner receives any intended benefit [R1.1/2.2].


On 01 March 2009, the proposal to refer the State powers to resolve property disputes between partners to the Commonwealth and Family Court of Australia was effected with the coming into effect of the Federal Family Law (Amendment (De Facto Financial Matters and Other Measures) Act 2008 [R2.1].

3.

Courts & Tribunals

On 29 February 2012, in what is believed to be the first same-sex will dispute in Victoria, Juanito Estrella claimed he was in a secret same-sex de facto relationship for 25 years and was awarded $300,000 from his late partner's estate [C3.2], [R3.1].

R1.1 See: Federal: Property
L1.3/4 Statute Law Amendment (Relationships) Act 2001
L1.2/3 Administration and Probate Act 1958 s91
R1.1/2.2 GayLawNet® Incapacity, Wills, Death & Inheritance
R1.4/2.8 MCV: Super change for same-sex state services 06 JUL 10
L2.7 Victorian Government Gazette No. G26 page 1428 PDF 568.47kb, 28 JUN 01
L2.6 Victorian Government Gazette No. G34 page 1927 PDF 598.67kb, 23 AUG 01
L2.5 Statute Law Amendment (Relationships) Act 2001
R2.4 GayLawNet®: Divorce, Separation
R2.3 Declared Relationships Statutory Declaration - Victorian Version PDF 39kb
R2.2 GayLawNet®: Incapacity, Wills, Death & Inheritance
R2.1 MCV: Gay Divorce Easier? 10 JAN 08
C3.2 Supreme Court of Victoria: Estrella v. McDonald & Ors S CI 2009 7757 PDF 424.07kb, 29 FEB 12
R3.1 WA Today: Same-sex partner in will victory 01 MAR 12
Gender Identity, Intersex,
Transgender, Transexual

[?]
Legislation/Cases/References
1.

State

On Wednesday 06 September 2000, at 9:33 p.m., the Equal Opportunity (Gender Identity and Sexual Orientation) Bill finally passed the Legislative Council [R1.7].

The Bill amended the Equal Opportunity Act 1995 (now 2010) [L1.6] making it unlawful to discriminate on the basis of a person's 'gender identity' in the areas of employment, accommodation, education, provision of goods and services and disposal of land, clubs and club members, sport and local government.


From January 2005, the law in Victoria allows transsexuals born in Victoria and who have undergone "sex affirmation surgery" to amend their birth certificates to reflect their affirmed gender [R1.5]. The law doesn't allow birth certificate changes for transgender individuals who have not undergone surgery but are having extensive, long-term hormone treatment.

Section 4(1) of the Births, Deaths and Marriages Registration Act 1966 provides - [L1.4].

sex affirmation surgery means a surgical procedure involving the alteration of a person's reproductive organs carried out for the purpose of assisting the person to be considered to be a member of the opposite sex.

In May 2004, the Legislative Assembly passed the bill allowing birth certificate changes for unmarried, post-operative transsexuals born in Victoria. The Legislative Council supported the measure [R1.3].


In May 2004, a transgender recruit was accepted into the Victoria Police Academy [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".

2.

Courts & Tribunals

In May 2009, the Chief Justice of the Family Court Diana Bryant ruled that a 17-year-old female to male transsexual be allowed to undergo a double mastectomy [R2.5].


In May 2007, the Victorian Civil and Administrative Tribunal granted two women-only rooming houses the right to refuse access to transsexual tenants [R2.4].


On 16 August 2006, Heery J in the Federal Court of Australia ruled that the refusal of the registrar to issue a new birth certificate following sex affirmation surgery was not contary to the Sex Discrimination Act 1984 (Cth) [R2.3].

On 29 August 2007, the Full Court of the Federal Court of Australia comprising Black CJ, Kenny and Gyles JJ dismissed an appeal [C2.2].


In August 2005, the Victorian Court of Appeal ruled that a man who claims he was misdiagnosed as a transsexual can sue the medical team that advised him to have a sex change [R2.1].

R1.7 Melbourne Star Observer: Parliament Passes Gender Identity Bill 08 SEP 00
L1.6 Equal Opportunity Act 2010 s6(d)
R1.5 MCV: Transgender Laws Take Effect 14 JAN 05
L1.4 Births, Deaths and Marriages Registration Act 1966 PDF 761.36kb, 01 JUL 14
R1.3 MCV: 'Trans Reforms OK'd 14 MAY 04
Melbourne Star Observer: Gender Change Concern 18 MAR 04
R1.2 MX News: Sex Swap Cop: Transsexual Into Academy 06 MAY 04
R1.1 Queensland Pride: Activist Wins Historic Passport for Gender X 24 JAN 03
Courts & Tribunals
R2.5 MCV: Transsexual breast surgery approved 06 MAY 09
R2.4 MCV: Trans Ban in St Kilda 24 MAY 07
R2.3 Law Institute Journal: Discrimination - Alteration of Birth Details After Sex Affirmation Surgery OCT 06
C2.2 AB v Registrar of Births Deaths and Marriages [2007] FCAFC 140 (29 August 2007) Word 265kb 29 AUG 07
R2.1 The Sydney Daily Telegraph: Sex-change Patient Can Sue 19 AUG 05
Hate Crimes Legislation/Cases/References
See also: [VIOLENCE]
1.

State

On 02 December 2009, the Sentencing Amendment Act 2009 came into force requiring the court to consider a motivation of hatred or prejudice against a group of people when sentencing an offender [R1.4].


Sentencing Act 1991 Part 2 – Governing Principles [L1.3]

Section 5 Sentencing Guidelines

(2) In sentencing an offender a court must have regard to –

[…]

(daaa) whether the offence was motivated (wholly or partly) by hatred for or prejudice against a group of people with common characteristics with which the victim was associated or with which the offender believed the victim was associated; and …

Previously:

There was no hate crime law in Victoria.

On 22 September 2009, the Sentencing Amendment Bill 2009 was introduced to Parliament to amend Section 5(2) to provide that in sentencing an offender, a court must have regard to whether the offence was motivated (wholly or partially) by hatred for or prejudice against a group of people with common characteristics with which the victim was associated or with which the offender believed the victim was associated [R1.2].

In August 2009, the Victorian Government recommitted to introduce anti-hate sentencing legislation. The legislation is due to go before Parliament before the end of the year [R1.1].

R1.4 MCV: Court to crackdown on homophobic crime 08 DEC 09
L1.3 Victorian Legislation: Sentencing Act 1991 (Accessed 16 DEC 09)
R1.2 MCV: Victoria targets gay hate crimes 22 SEP 09
R1.1 Southern Star: Hate crimes to be punished 13 AUG 09
Health, Medical Legislation/Cases/References
1.

State

On 26 March 2014, the Parliament passed the “Mental Health Bill 2014“ with amendments to include “gender identity” in Section 4(2) setting out examples of what does not constitute mental illness: “(d) that the person expresses or refuses or fails to express a particular sexual preference or sexual orientation” [R1.1].

R1.1 StarObserver: Gender identity no longer a mental illness in Victoria 25 MAR 14
HIV Aids Legislation/Cases/References
1.

Discrimination

The Federal Disability Discrimination Act [L1.3] 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.

In December 1999 however, as a result of an Australian High Court ruling [R1.2], employees may in certain circumstances be liable to discharge if they are HIV positive.

The Monash IVF Standards Committee has decided to consider and HIV positive women for IVF treatment [R1.1].

2.

Health Records

Under the Health Records Act 2001 [L2.2] Individuals have a right to apply for their health information [R2.1].

The Act came into effect on 1 July 2002.

3.

Offences

It is an offence to intentionally cause another person to be infected with a very serious disease [L3.3].

In January 2009, ACON once again declared its opposition to the criminalisation of HIV transmission, after the jailing of Victorian man Michael John Neal for deliberately trying to infect others with HIV [R3.2].

In March 2003, the Melbourne Magistrates' Court ordered the Victorian Health Department to release confidential records of a man police are investigating for knowingly spreading HIV [R3.1].

4.

Offenders

In May 2000, The HIV/AIDS Legal Centre (HALC) [R4.2] published 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 document may be downloaded from the HALC Web Site [R4.2] or GayLawNet® [R4.1]

.
L1.3 Disability Discrimination Act 1992 (C'wlth) Part 2 ss15-58
R1.2 GayLawNews™: Staff at Risk of AIDS Bias 04 DEC 1999
R1.1 Sydney Xpress News: IVF Decision Lauded 16 AUG 2001
L2.2 Health Records Act 2001
R2.1 Law Institute of Victoria - Friday Facts: Individuals May Now Obtain Their Health Information Records 28 JUN 02
L3.3 Crimes Act 1958 s19A
R3.2 MCV: ACON Opposes HIV 'Crimes' 22 JAN 09
R3.1 The Age: Court Orders HIV Man's File Be Released 03 MAR 03
R4.2 HIV/AIDS Legal Centre (HALC)
R4.1 GayLawNet® HIV/Aids Sentencing Kit 3rd Edition PDF 254.83kb, 03 MAY 00
Homosexuality, Sodomy Legislation/Cases/References
1.

State

On 01 March 1981, the Crimes (Sexual Offences) Act 1980 was proclaimed, decriminalising consensual sex between men [L1.3].

The law has never proscribed against female same-sex sexual activity.


On 12 January 2014, the Liberal Premier Dennis Napthine was expected to announce the introduction of legislation that will provide men with the opportunity to have the convictions wiped from their record [R1.2].

On 17 December 2012, the Government was reported to be considering legislation to erase the convictions of men who were prosecuted for consensual gay sex before the law was changed in 1981 [R1.1].

L1.3 Crimes (Sexual Offences) Act 1980 No. 9509 s6
R1.2 ABC News: Victorian men convicted of gay sex to get convictions removed 12 JAN 14
R1.1 The Age: Move to strike gay sex records 17 DEC 12
Insurance Legislation/Cases/References
1.

State

In February 2012, gay Melbourne couple Simon Mallia and Lee Milne reported that they were forced to undergo blood and medical tests as part of an application for income protection insurance and labelled the requirements "insensitive, invasive and discriminatory" [R1.1].

The application asked if they had "ever engaged in sexual activity with, or worked as, a prostitute; or engaged in anal sexual activity". After answering "yes", they received a separate confidential questionnaire asking if they had ever used intravenous drugs, had a sexually transmitted disease or practised safe sex [R1.1].

R1.1 StarObserver: Insurance Insult 23 FEB 12
Marriage Legislation/Cases/References
1.

National

The Federal Marriage Act 1961 governs marriage in Australia

See: FEDERAL - MARRIAGE

2.

State

On 04 July 2014, it was reported that f2m transgender Paige Phoenix received a letter from Births Deaths Marriages Victoria informing him that a cross-check with his birth certificate had revealed he was female and as under the act, marriage was between a man and woman, the marriage was invalid. To change his birth certificate he was told he would require sex affirmation surgery (not a safe option for him). He was asked to return the marriage certificate for “destruction” [R2.3].

On 06 June 2012, Victorian Greens MLC Sue Pennicuik introduced the “Marriage Equality Bill 2012” to legalise same-sex marriage in Victoria [L2.2], [R2.1].

See: FEDERAL - MARRIAGE
R2.3 TheAge: Gender pioneers wage war with law and officialdom 04 JUL 14
L2.2 Bill: Marriage Equality Bill 2012 PDF 174.29kb, 06 JUN 12
R2.1 GNN / MCV: Gay marriage bill introduced in Victoria 06 JUN 12
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.

Adoption

The Victorian Adoption Act 1984 Section 11 [L1.1/2] provides -

(1) "An adoption order may be made in favour of a man and a woman (emphasis added) -
(a) who are married to each other and have been so married for not less than two years; or
(b) whose relationship is recognized as a traditional marriage by an Aboriginal community or an Aboriginal group to which they belong and has been so recognized for not less than two years; or
(c) who are living in a de facto relationship and have been so living for not less than 2 years; […]"

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

The non-biological partner in a gay couple is not seen as a legal parent. The non-biological has to apply for a parenting order from the Family Court to have any legal parenting rights and a parenting order only lasts until the child is 18 years old [R1.1/1].

However, see 2. Courts & Tribunals below.

2.

Fostering

There is no 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's and Young Persons Act 1989 [L2.3].

The normal process includes a number of interviews that may be fairly probing. Applicants may be required to undergo police checks and training [R2.1].

An application to the Court would be required to obtain a permanent care order.


In May 2010, a recent set of guidelines for Victorian foster care agencies produced by The Centre for Excellence in Child and Family Welfare states: "Children learn about the world in many different ways. Modelling respective and supportive relationships and behaviours is the work of all people and should not be limited by existing gender stereotypes" [R2.1].

3.

Surrogacy

On 11 December 2008, Section 147 of Assisted Reproductive Treatment Act 2008 amended the Status of Children Act 1974 (Parts III, IV) giving same-sex partners and "commissioning parents" of surrogate children legal parenting rights for the first time (Parts III, IV). The Act has a default commencement date of 1 January 2010 (Section 2 (3)) [L3.1].

4.

Courts & Tribunals

In September 2010, in what is believed to be a first for Victoria, a judge allowed a gay man who is in a relationship to adopt his foster child himself to comply with Victorian laws that make it illegal for gay couples to adopt a child together [R4.2].

In July 2003, Family Court Justice Joseph Kay ruled a Victorian man who donated his sperm in the "usual and customary manner" - by having sex with a lesbian - was been found liable to pay child support [R4.1].

Adoption
L1.1/2 Adoption Act s11
R1.1/1 MCV: Gay Dads Seek Surrogacy Rights 29 JAN 09
Fostering
L2.3 Children's and Young Persons Act 1989
R2.2 For information on becoming a foster carer, call the Foster Care Hotline 1800 013 088 or ShareCare on +61 (0)3 9417 1288
or visit Foster A Brighter Future
R2.1 MCV: Foster care debunks 'myth' 18 MAY 10
Surrogacy
L3.1 Assisted Reproductive Treatment Act 2008
Courts & Tribunals
R4.2 The Age: Court allows gay man to adopt child 12 SEP 10
R4.1 The Australian: Donor Liable in Old-fashioned Way 11 JUL 03
See also Rainbow Families Council: Rainbow Families and the Law PDF 958.32kb, 20 OCT 10
The Royal Women's Hospital: Pride and Joy: A resource for prospective lesbian parents in Victoria (Accessed 10 NOV 09)
Privacy Legislation/Cases/References
1.

Courts & Tribunals

There is no specific tort of invasion of privacy in Australia or Victoria [R1.1].

However, the law of breach of confidence has so developed and exanded … to include what looks very like a de facto equitable doctrine of breach of privacy [R1.1].

R1.1 Law Institute Journal: Sex, Videotape and the Law (2009) 83(8) LIJ at 53, Dr Robert Dean, AUG 09
Supreme Court of Victoria: Giller v. Procopets [2008] VSCA 236, 10 DEC 08
Violence: Bullying, Domestic Violence, Harassment, Victimisation, Vilification Legislation/Cases/References
See also: [HATE CRIMES]
1.

State

Bullying

On 07 June 2011, the Crimes Amendment (Bullying) Act 2011 ("Brodie's Law") amended Section 21A of the Crimes Act 1958 whereby –

  • making threats to the victim (2) (da),
  • using abusive or offensive words to, or in front of, the victim (2) (db),
  • performing abusive or offensive acts in the presence of the victim (2) (dc),
  • directing abusive or offensive acts towards the victim (2) (dd) or
  • acting in a way that could reasonably be expected to cause physical or mental harm to the victim, including causing the victim to self-harm (including suicide) (2) (g)

became offences the maximum penalty for which is 10 years imprisonment [L1.5/8].

Domestic Violence

In December 2008, the Family Violence Protection Act 2008 expanded the definition of 'family member' to include same-sex couples, non-biological parents, a person who is or has been ... a domestic partner or has or has had an intimate personal relationship with the relevant person and a child who normally or regularly resides with the relevant person [L1.4/7].

Intervention Orders may issue where there is physical or sexual abuse, emotional or psychological abuse, financial and economic abuse, threatening behaviour, coercion, or any other behaviour which controls or dominates a family member or causes them to feel fear for their safety and well-being or that of other family members [L1.4/7].

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.

The Statute Law Amendment (Relationships) Act 2000 brought 'domestic partners' under the Victims of Crime Assistance Act 1996 [L1.3/6].

Harassment, Victimisation

Under the Equal Opportunity Act 2010 [L1.3/5] it is unlawful to sexually harass another person in the same areas where DISCRIMINATION is unlawful, that 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.

Sexual harassment is behaviour of a sexual nature that is unwelcome, unsolicited and unreciprocated. 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).

s103 of the Act also provides that "A person must not victimise another person". The introduction of the concept of a seperate actionable wrong brings the possibility of redress for employees previously unable to bring an action for discrimination against their employers [C1.2/4].

The concept of victimisation may apply also to the situation where one supervisory employee has greater power than the second person and is able indirectly or directly to affect the second person's working conditions or career prospects [C1.1/3].


In July 2007, Victoria Police was encouraging the gay community to report prejudice-motivated crime with the launch of a new online information source [R1.2].

From 26 April 2007, victims of sexual assault can obtain help from one central location. The Peninsula Sexual Assault Centre (347 Nepean Highway, Frankston, T: 9928 8741) brings police, counsellors and medical staff together under the one roof [R1.1].

2.

Courts & Tribunals

On 11 August 2004, it was reported that Victorian publican Rodney Keogh, who told people that one of his workers "likes boys" was found guilty of sexual harassment by Judge Barry Dove in the Victorian Civil and Administrative Tribunal, who awarded the worker $8500 in damages and lost wages [R2.1].

L1.5/8 Crimes Act 1958
L1.4/7 Family Violence Protection Act 2008
L1.3/6 Statute Law Amendment (Relationships) Act 2001
L1.3/5 Equal Opportunity Act 2010 s92-102
C1.2/4 Jacobs v. Towergrange Pty Ltd t/a Kinross Nursing Homes (1994) EOC 92-656
C1.1/3 Bevacqua v. Klinkert & Others [1993] 5 VIR 137, (1993) EOC 92-515)
R1.2 bnews: Gay Crime Crackdown 26 JUL 07
R1.1 Law Institute Journal: "Specialised Sexual Assault Centre Opens" (2007) 81(6)LIJ@19
R2.1 News Ltd: Publican Guilty of Sex Harassment 11 AUG 04
Wrongful Death Legislation/Cases/References
1.

State

If the death of a person is caused by a wrongful act neglect or default that would (had the death not occurred) have entitled the deceased person to maintain an action and recover damages, then the person who would have been liable remains liable to such an action for damages [L1.1].

The action may be brought by the executor or administrator on behalf of the deceased's dependants and "dependants" means:

"[...] such persons as were wholly mainly or in part dependent on the person deceased at the time of his death or who would but for the incapacity due to the injury which led to the death have been so dependent."

Such a dependent could be a same-sex domestic partner.

L1.1 Wrongs Act 1958 Part III

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