Laws

Australia

WESTERN AUSTRALIA

[Christmas Islands] [Cocos (Keeling) Islands]

Limited information only available for these topics

Access to Children
Adoption of Children
Age of Consent
Anti-Vilification
Artifical Insemination
Assisted Reproduction
Asylum / Refugees
Civil Unions
  Custody of Children
Discrimination
Estates, Inheritance
Gender Identity
Fostering Children
Harassment
Hate Crimes
  HIV/Aids
Homosexuality
Immigration
In Vitro Fertilisation (IVF)
Marriage
Military
Parenting
  Partners
Property
Sodomy
Superannuation
Transgender, Transsexual
Unfair Dismissal
Violence
Wrongful Death

See also: Equality Rules

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

State

On 21 March 2002, the Acts Amendment (Lesbian and Gay Law Reform) Act 2002 was passed and came into effect on 20 September 2002. The age of consent for consensual sex between same-sex partners was lowered from 21 years to 16 years [R1.5].

Criminal Code Act Compilation Act 1913 [L1.4]

Part V Offences against the person … Chapter XXXI Sexual Offences

Section 321. Child of or over 13 and under 16, sexual offences against

(1) In this section, child means a child of or over the age of 13 years and under the age of 16 years.

(2) A person who sexually penetrates a child is guilty of a crime and is liable to the punishment in subsection (7). (imprisonment for 14 years).

Previously:

In November 2001, legislation to lower the homosexual age of consent from 21 to 16 was introduced in Parliament, but adults will no longer be able to use the excuse that they believed underage victims were 16 [R1.3].

In August 2001, a package of reforms promised by the state Government would lower the age from 21 to 16 and gay couples will be able to adopt children and have access to IVF treatment [R1.2].

In July 1999, Western Australia and New South Wales were the only States to differentiate between male homosexual sex and heterosexual and lesbian sex by having a higher age of consent for sex between males [R1.1].

R1.5 The West Australian Gay Reform Laws Passed 21 MAR 02
L1.4 Western Australian Legislation: Criminal Code Compilation Act 1913, Section 321 (Accessed 29 DEC 09)
R1.3 The West Australian: Underage Sex Law Tightens 23 NOV 01
R1.2 The Australian: State Pushes Equality for Gays 03 AUG 01
R1.1 Sydney Morning Herald: Age of Consent Back for Debate 07 JUL 99
Annuities, Superannuation, Pensions Legislation/Cases/References
See also: [ESTATES, PROPERTY]
1.

State

On 21 March 2002, the Acts Amendment (Lesbian and Gay Law Reform) Act 2002 was passed and came into effect on 20 September 2002. State public sector workers in same-sex relationships are now entitled to equal rights in nominating superannuation beneficiaries [R1.2].

Outside the State public sector, Federal rules apply, and workers in same-sex relationships cannot be sure their super will go to a same sex partner if they die [R1.1].

R1.2 The West Australian Gay Reform Laws Passed 21 MAR 02
R1.1 The West Australian: "Laws Sway Decisions" 20 MAY 02
Assisted Reproduction Technology
Artificial Insemination, In Vitro Fertilisation
Legislation/Cases/References
1.

State

On 21 March 2002, the Acts Amendment (Lesbian and Gay Law Reform) Act 2002 was passed and came into on 20 September 2002. Same-sex couples can now access IVF treatment [R1.2].

Lesbian co-parents will both be listed on the child's birth certificate [R1.1].

R1.2 The West Australian: Gay Reform Laws Passed 21 MAR 02
R1.1 The Australian: Out Proud and Parents 16 JUL 02
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 and custody matters in Australia

See: FEDERAL: ACCESS TO, CUSTODY OF CHILDREN

2.

Courts & Tribunals

In January 2003, a lesbian's bid to reduce the role played in her child's life by the gay father was rejected by WA's Family Court and Justice Nicholas Tolcon instead ordered the parents to have counselling to address their animosity [R2.1].

R2.1 The West Australian: Gay Parents Sent for Therapy 01 FEB 03
Civil Unions, Partners: Domestic, Registered Legislation/Cases/References
See also: [ESTATES] [MARRIAGE] [VIOLENCE]
1.

State

On 21 March 2002, the Acts Amendment (Lesbian and Gay Law Reform) Act 2002 passed and came into effect on 20 September 2002.

Interpretation Act 1984 - Section 13A. De facto relationship and defacto partner, references to

(1) A reference in a written law to a de facto relationship shall be construed as a reference to a relationship (other than a legal marriage) between 2 persons who live together in a marriage-like relationship [L1.4].

Next of kin provisions have changed to include de factos in a number of areas, including for medical treatment and for inheritance purposes.


In May 2007, gay and lesbian community groups launched a do-it-yourself relationship registration kit [R1.3].

In October 2000, members of the parliament voted not to pay a parliamentary pension to the partner of openly lesbian MP Giz Watson in the event of Watson's death [R1.2].

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 [R1.1].

2.

Cities & Towns

On 19 December 2012, the City of Vincent opened the first Relationship Register in the State. The fee for applications to make a relationship declaration if $120 [R2.4].

On 25 September 2012, the City of Vincent council adopted Policy No: 4.1.34 - Relationship Declaration Register for straight, gay and lesbian couples, based on the City of Melbourne model. The application fee is $120 [D2.1-3], [R2.1].

3.

Courts & Tribunals

Western Australia has its own Family Court, where same-sex couples can have parenting and financial matters resolved in a single application [R3.1].

L1.4 Austlii: Interpretation Act 1984 - Sect 13A (Accessed 11 NOV 12)
R1.3 MCV: Registration Kits Spark Lobbyists 17 MAY 07
R1.2 Capital Q: MP Denied Partner Benefits 06 OCT 00
R1.1 Declared Relationships Statutory Declaration - Western Australian Version PDF 42kb
R2.4 City of Vincent: Western Australia's first Relationship Declaration Register 19 DEC 12
D2.3 City of Vincent: Relationship Declaration Register - Official Declaration PDF 279.50kb, 30 OCT 12 (Accessed 11 NOV 12)
D2.2 Relationship Declaration Register - Confirmation of Appointment PDF 420.54kb, 30 OCT 12 (Accessed 11 NOV 12)
D2.1 City of Vincent: Policy No: 4.1.34 Relationship Declaration Register PDF 17.49kb, 25 SEP 12 (Accessed 11 NOV 12)
R2.1 OutInPerth: City of Vincent to Introduce LGBT Inclusive Register 14 SEP 12
R3.1 bnews: Family Court Access on Agenda 08 MAY 08
Discrimination Legislation/Cases/References
See also: [VIOLENCE] [HIV / Aids]
1.

State

On 21 March 2002, the Acts Amendment (Lesbian and Gay Law Reform) Act 2002 was passed and came into effect on 20 September 2002. It is now unlawful to discrimination against people on the basis of sexual orientation in the areas of employment, education, accommodation and the provision of goods, services and facilities [R1.6].

Previously:

In December 2001, the Legislative Assembly has passed the Acts Amendment (Sexuality Discrimination) Bill [R1.5].

In November 2001, the Acts Amendment (Lesbian and Gay Law Reform) Bill 2001 to give gay and lesbian people the same rights as all others in the community was introduced to State Parliament [R1.4].

In November 2000, the Liberal Party's move to halt the progress of Western Australia's Acts Amendment (Sexuality Discrimination) Bill was described as "unconscionable" [R1.3].

In November 1997, a bill that would add gays and lesbians to the groups currently protected by the state's Equal Opportunity Bill and lower the age of consent for gay men from 21 to 16 (as it is for heterosexuals and lesbians) failed to pass in the West Australian Parliament [R1.2].

In September 1996, the Western Australian State Government has voted against legislation which would have protected gays and lesbians from discrimination on the basis of sexuality [R1.1].

2.

Courts & Tribunals

In December 1996, the Human Rights and Equal Opportunity Commission (HREOC) found that prison policies which require HIV positive prisoners to be placed in maximum security separate from other prisoners, were discriminatory [R2.1].

R1.6 The West Australian: Gay Law Reform Battles Discrimination 20 SEP 02
The West Australian: Gay Reform Laws Passed 21 MAR 02
R1.5 365Gay.com: Western Australia Passes Gay Reform Bill 12 DEC 01
R1.4 Government Media Office: Government Seeks An End to Gay Discrimination 11 NOV 01
R1.3 Sydney Star Observer: WA Libs to Block Anti-Discrimination 16 NOV 00
R1.2 Planet Out News: Time-Out For WA Law Reform 20 NOV 97
R1.1 Sydney Star Observer: WA Says No 26 SEP 96
R2.1 Melbourne Star Observer: WA Government Discriminatory 06 DEC 96

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Estates, Inheritance, Property, Succession, Wills Legislation/Cases/References
1.

State

On 21 March 2002, the Acts Amendment (Lesbian and Gay Law Reform) Bill 2001 was passed and came into into effect on 20 September 2002. Same-sex couples are now able to transfer property and surviving same-sex partner now inherits their deceased partner's estate on the same basis as de facto couples [R1.2].

Previously:

Stamp duty on the transfer of an interest in a home from one to both heterosexual partners names, such as on marriage, or from two to one after divorce got concessional treatment for stamp duty. This concession did not extend to same-sex couples [R1.1].

2.

Courts & Tribunals

In July 1998, the Supreme Court ordered that a lesbian give her former lover one-third of the sale proceeds from a house which they shared for five years after immigrating from the United Kingdom [R2.1].

R1.2 The West Australian: Gay Reform Laws Passed 21 MAR 02
R1.1 The West Australian: "Laws Sway Decisions" 20 MAY 02
R2.1 Melbourne Star Observer: Opinion Divided over Gay 'Mabo' 31JUL 98
Gender Identity, Intersex,
Transgender, Transexual

[?]
Legislation/Cases/References
1.

State

On 21 March 2002, the Acts Amendment (Lesbian and Gay Law Reform) Act 2002 passed and came into effect on 20 September 2002.

Interpretation Act 1984 - Section 13A. De facto relationship and defacto partner, references to

(1) A reference in a written law to a de facto relationship shall be construed as a reference to a relationship (other than a legal marriage) between 2 persons who live together in a marriage-like relationship [L1.3].

Transsexual and transgender persons are NOT covered under the amendments to the anti-discrimination law


In March 2000, the Gender Reassignment Bill finally passed through State Parliament more than two years after being introduced [R1.2].

In December 1999, the Gender Reassignment Bill was passed establishing a board to issue recognition certificates to persons who have undergone gender reassignment procedures, to enable the Registrar-General to register the reassignment of gender and to issue a new birth certificate showing the person's gender, and to provide protection from discrimination on the ground of gender history when a person has undergone reassignment procedures [R1.1].

2.

Courts & Tribunals

On 06 October 2011, the High Court of Australia allowed the appeal of two Western Australian (female-to-male) trans men who challenged the interpretation of the WA Gender Reassignment Act. The Court ruled there was no justification for requiring people to have costly and unnecessary surgeries in order to have their sex recognised in documentation [C2.6], [R2.5].

Previously:

On 08 April 2011, two WA transgender men were granted the opportunity to argue for leave to appeal to the High Court of Australia against their being denied gender recognition certificates [R2.4].

In September 2010, the WA Court of Appeal ruled two female-to-male transsexuals could not have their male gender recognised in law, saying they had no male genital and reproductive characteristics. Both had double mastectomies and testosterone treatment, but have not had hysterectomies or penis construction surgery. A High Court appeal is mooted [R2.3].

In August 2009, the State Administrative Tribunal found that because the Gender Reassignment Act did not specify reproductive surgery as a requirement, two transmen could be legally considered men even with female reproductive organs [R2.2].

The WA Attorney-General was expected to appeal the decision, saying that the ruling means a person can be legally male and yet still bear children, which could have significant and unforeseen effects on WA law. [R2.1].

L1.3 Austlii: Interpretation Act 1984 - Sect 13A (Accessed 11 NOV 12)
R1.2 West Australian: Gender-bending Bill Through 17 MAR 00
R1.1 Capital Q: WA Gender Bill Passes 17 DEC 99
C2.6 Order: AB v Western Australia [2011] HCA 42, 06 OCT 11
R2.5 Star Observer: High Court rules in trans favour 06 OCT 11
R2.4 StarOnLine: Western Australian trans men head to High Court 16 APR 11
R2.3 MCV: WA gender change battle set for High Court 07 SEP 10
R2.2 MCV: Transman victory 25 AUG 09
R2.1 MCV: Trans Man victory to be challenged 08 SEP 09
HIV Aids Legislation/Cases/References
1.

Courts & Tribunals

On 31 July 1997, the High Court upheld the decision, ruling 5–2 that Perth City Council did not discriminate against People Living with HIV/AIDS (WA) by refusing to approve an application for a PLWHA Drop in Centre [C1.3], [R1.2].

In March 1996, the Full Bench of the Supreme Court of Western Australia upheld the City of Perth appeal against the 1993 Equal Opportunity Tribunal finding that councillors discriminated against members of People Living with HIV/AIDS (PLWHA) when they voted against the establishments of a drop-in centre in North Perth in 1990 [R1.1].

C1.3 AustLII: IW v. City of Perth [1997] HCA 30, 31 JUL 97
R1.2 Sydney Star Observer: High Court Blow for WA 07 AUG 97
R1.1 Westside Observer: Equal Opportunity ruling overturned 28 MAR 96
Homosexuality, Sodomy Legislation/Cases/References
See also: [AGE OF CONSENT]
1.

State

In 1989, consensual sex between same sex couples was decriminalized.

   
Marriage Legislation/Cases/References
1.

National

The Federal Marriage Act 1961 governs marriage in Australia

See: FEDERAL - MARRIAGE

2.

State

On 11 December 2013, Greens MP Lynn MacLaren introduced the “Same-Sex Marriage Bill 2013” into the (Upper House) Legislative Council [L2.6], [R2.5].

On 29 November 2012 Greens MLC Lynn Maclaren introduced the “Marriage Equality Bill 2012” to legalise same-sex marriage in Western Australia [L2.4], [R2.3].

On 19 September 2012, State Labor Member for Perth John Hyde confirmed that he was preparing a Marriage Equality Bill to be introduced into WA's Legislative Assembly [R2.2].

On 13 September 2012, Greens Member of the Legislative Council Lynn MacLaren advised the WA Parliament that the party will introduce a Marriage Equality Bill 2012 [R2.1].

L2.6 Bill: Same-Sex Marriage Bill 2013 PDF 245.33kb, 11 DEC 13
R2.5 Herald-Sun: Same-sex marriage bill introduced in Western Australia 12 DEC 13
L2.4 Bill: Marriage Equality Bill 2013 245.33kb, 11 DEC 13
R2.3 SameSame: Marriage equality bill introduced in WA 29 NOV 12
R2.2 OutinPerth: Labor's Hyde to Introduce Second WA Marriage Bill 19 SEP 12
R2.1 GayStarNews: Western Australia becomes the latest state to introduce gay marriage bill 13 SEP 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.

State

On 21 March 2002, the Acts Amendment (Lesbian and Gay Law Reform) Act 2002 was passed and came into effect on 20 September 2002. Same-sex couples have access to adoption procedures [R1.3].

Same-sex couples can co-adopt their partner's children or be considered step-parents, in the exact same way as opposite sex couples [L1.2]


In June 2007, two Western Australian men have become the first same-sex couple in Australia to legally adopt a child [R1.1].

2.

Courts & Tribunals

Western Australia has its own Family Court, where same-sex couples can have parenting and financial matters resolved in a single application [R2.3].

On 10 January 2013, Justice Jane Chrisford ruled that a co-father could adopt his twin children, who were born via a commercial surrogacy agreement in India, dispensing with the requirement to obtain the birth mother's consent [C2.2], [R2.1].

R1.3 The West Australian: Gay Reform Laws Passed 21 MAR 02
L1.2 AustLII: Adoption Act 1994 - Sect 67 (Accessed 11 NOV 12)
R1.1 MCV: Landmark Gay Adoption in WA 21 JUN 07
R2.3 bnews: Family Court Access on Agenda 08 MAY 08
C2.2 Blake & Anor PDF 57.49kb, 10 JAN 13
R2.1 StarObserver: Giant legal leap for gay dads 08 FEB 13
Unfair Dismissal Legislation/Cases/References
1.

Courts & Tribunals

In March 2002, the Industrial Relations Commission found the dismissal of former head of physical education was "harsh, oppressive and unfair" and awarded her $10,000 [R1.1].

R1.1 Perth Sunday Times: Gay Teacher Gets $10,000 03 MAR 02
Violence: Bullying, Domestic Violence, Harassment, Vilification Legislation/Cases/References
1.

Courts & Tribunals

On 18 March 1996, Robert Vaughan McEwen (32), a gay man suffering "battered wife syndrome" was sentenced by Justice Walsh in the Western Australian Supreme Court to 12 months jail for stabbing his abusive lover Thomas Hodgson to death [C1.2], [R1.1].

C1.2 The Queen v. Robert Vaughan McEwen WASC (unreported) 18 MAR 96
R1.1 Brother Sister: Battered Wife Defence 21 MAR 96

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