| LGBT rights in South Australia | |
|---|---|
South Australia (Australia) |
|
| Same-sex sexual activity legal? | Yes |
| Recognition of relationships |
Domestic Partnership Agreement |
| Adoption | No |
| Discrimination protections | Yes |
Same-sex couples in South Australia have access to many spousal rights and can easily prove that a relationship exists through a domestic partnership agreement. South Australia was the first state to legalise sexual conduct between males in 1975, and in 2004 was the first to consider allowing civil unions for gay couples.
However, South Australia is now the only jurisdiction in Australia to ban fertile single women and lesbians from accessing IVF treatment. South Australia requires single women and lesbians to be "medically infertile" in order to receive IVF treatment under a 1996 Supreme Court of South Australia ruling [3]. South Australia is also the only state or territory in Australia to ban altruistic surrogacy for singles and same-sex couples under the Statutes Amendment (Surrogacy) Act 2009[4].
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In 1972, the Dunstan Labor government introduced a consenting adults in private type defence in South Australia. This defence was later introduced as a bill by Murray Hill, father of former Defence Minister Robert Hill, In 1975, South Australia became the first state or territory to legalise sexual conduct between males.
Under South Australia's Equal Opportunity Act 1984[5] it is unlawful to discriminate in clubs, pubs, other establishments, property entitlements, trade unions, restaurants, housing, memberships to establishments, goods and services, education and training, etc. (religious exceptions still apply). The Act since 1988 also expressly says that it is not discrimination in refusing to providing ART or IVF services for certain women under section 5 which quotes -
(a) A reference in this Act or in the repealed Sex Discrimination Act 1975 to the provision of a service does not include, and will be taken never to have included, the carrying out of either of the following fertilisation procedures: (a) artificial insemination; or (b) the procedure of fertilising an ovum outside the body and transferring the fertilised ovum into the uterus.
In 2003, South Australia passed the Statutes Amendment (Equal Superannuation Entitlements for Same Sex Couples) Act 2003 (number 13).[1]
South Australia became the first state to consider allowing civil unions for gay couples when MP Mark Brindal proposed the Civil Unions Bill 2004 in October 2004. Brindal said, "Same sex attracted people make invaluable contributions to society, and society can no longer afford the hypocrisy to deny them the right to formalise their relationships."[2][3]
Following the failure of the 2004 Civil Unions Bill, the Statutes Amendment (Relationships No 2) Bill 2005 was written to amend 82 South Australian laws, so that same-sex and heterosexual couples would be treated identically. This also failed to pass the House.[4]
The Statutes Amendment (Domestic Partners) Act 2006 (Number 43), which took effect 1 June 2007, amended 97 Acts, dispensing with the term "de facto" and categorising couples as "domestic partners". This meant same-sex couples and any two people who live together are now covered by the same laws. Same-sex couples may make a written agreement called a Domestic Partnership Agreement about their living arrangements. This may be prepared at any time and is legal from the time it is made, but must meet other requirements, such as joint commitments, before being recognised as domestic partners. Until the bill’s passage South Australia was the only state or territory to not recognise same-sex couples in legislation.[5][6][7][8][9][10][11]
In 2009 the Commonwealth Powers (De Facto Relationships) Act 2009 [6] to allow the referrals of a de facto partners property and superannuation to the Commonwealth as family law under the Family Law Act 1975 [7] just as all other states have done previously (Assented 10 December 2009; Commenced 1 July 2010)
In 2010 the Family Relationships (Parentage) Amendment Bill 2010[8] is a proposed law that will recognise co-mothers in same sex relationships and their children was introduced by Greens member Tammy Jennings just after the recent 2010 South Australian state election to the Legislative Council (upper house) and passed by a conscience vote of 14-5 on 14 November 2010, and passed in the Legislative Assembly (lower house) also by conscience vote by 24-15 on the 10 June 2011 [9] [10] [11]. The bill got assented (No 22 of 2011)[12] and became law on the 23 June 2011 and commenced on 15 December 2011[12][13].
In 2011 the Statutes Amendment (De Facto Relationships) Bill 2011 that will recognise same sex couples in stamp duty applications passed the Legislative Assembly (lower house) by a unanimous vote on 14 March 2011 and also passed the Legislative Council (upper house) on 12 July 2011 by another unanimous vote. The bill got assented (No 27 of 2011) and became law on 21 July 2011 and became effective on assent, part 4 was made retrospective on 1 July 2010[13].
The Adoption Act 1988 [14] allows only heterosexual couples (both married and de facto) to adopt children (similar to Queensland, Victoria and Northern Territory). Single individuals are also banned from adoption in South Australia, making it the only place in Australia that does this. Currently only Tasmania, Australian Capital Territory, New South Wales and Western Australia allow same sex couples to adopt children.
The Family Relationships Act 1975 [15] made all surrogacy arrangements illegal. The Statutes Amendment (Surrogacy) Act 2009 [16] revised the Family Relationships Act by legalising altruistic surrogacy (but not commercial surrogacy) only for heterosexual couples (both married and de facto). It also presumes that the woman who gives birth to a child is the legal mother of the child, regardless of genetics. It was passed by the Parliament of South Australia on 17 November 2009 [17]. An amendment introduced by Labor MP Ian Hunter which would have allowed anyone in a same sex relationship access to gestational surrogacy was rejected when the law was drafted in 2008.[14]
The Reproductive Technology (Clinical Practices) Act 1988 [18] states that artificial fertilisation procedures are exclusively for the benefit of heterosexual couples (both de facto and married) who appear to be infertile. In 1996 the Supreme Court of South Australia found that the restriction of access to treatment on the basis of marital status contravened the Sex Discrimination Act 1984 (Cwth). Infertile lesbian women who are single or in a relationship currently have access to IVF treatment, similar to Western Australia.
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