LGBT rights in New South Wales

Lesbian, gay, bisexual, and transgender (LGBT) persons in the Australian state of New South Wales have most of the same rights and responsibilities as heterosexuals.

Laws regarding homosexuality

Decriminalisation of homosexual sex

It was in 1984 that the Neville Wran Government introduced, as a private member's bill, the 'Crimes (Amendment) Act 1984', which eventually decriminalised homosexual acts in NSW. The bill was supported by the absence of a conscience vote from the Labor side, was subsequently passed with support from some of the Opposition, including the leader Nick Greiner, on 22 May and was assented to on 8 June 1984.^[1] However this was done with an unequal age of consent of 18 (it was 16 for heterosexual and lesbian couples). It was only in May 2003, 19 years later, that the New South Wales Government equalised the age of consent to 16 under the Crimes Act 1900, with NSW being the second last state to reform its unequal age of consent law.^[2][3] As of 2015, Queensland still has an unequal age of consent law - known as section 208.

History of homosexual sex laws

Homosexuality was criminalised in New South Wales under section 79 of the Crimes Act 1900 (consent provisions were dealt with in section 78) which stated thus: "Whosoever commits the abominable crime of buggery, or bestiality, with mankind, or with any animal, shall be liable to imprisonment for fourteen years."^[4] In 1951, with the support of Police Commissioner Colin Delaney, who was noted for his obsession against homosexuality, Attorney General Reg Downing moved an amendment to the Act to ensure that "buggery" remained a criminal act "with or without the consent of the person", removing the previously existing legal loophole of consent.^[5]

The Campaign Against Moral Persecution, also known as C.A.M.P., was founded in Sydney in September 1970 and was one of Australia's first gay rights organisations.^[6] C.A.M.P. raised the profile and acceptance of Australia's gay and lesbian communities.^[7]

On 24 June 1978 gay rights activists in Sydney staged a morning protest march and commemoration of the Stonewall Riots which took place in New York in June 1969.^[8] Although the organisers had obtained permission, this was revoked, and the march was broken up by the police. Fifty-three of the marchers were arrested.^[9] Although most charges were eventually dropped, the Sydney Morning Herald published the names of those arrested in full, leading to many people being outed to their friends and places of employment, and many of those arrested lost their jobs as homosexuality was a crime in New South Wales until 1984.^[10] The event was held each year thereafter and is now known as the Sydney Gay and Lesbian Mardi Gras which celebrated its 30th anniversary in 2008.

The first attempt in New South Wales to bring about Gay law reform was in the form of an amendment to the 'Crimes (Sexual Assault) Amendment Act 1981', brought forward by Labor MP George Petersen in April 1981. This would have legalised consenting acts between adults. However, despite support from the Attorney General, Frank Walker, Young Labor, and public opinion polls that supported reform, it was defeated by the Catholic-dominated majority right faction of NSW Labor from inclusion before the act's introduction and was prevented from being included for debate in the Legislative Assembly by the Speaker, Laurie Kelly, who ruled it out of order. He did not appeal the ruling under threat of expulsion from the party.^[11] Undeterred, in November 1981 Petersen introduced a private member's bill which sought to decriminalise homosexual acts in NSW as well as equalise the age of consent to 16. However, after its first reading, the bill was adjourned at the request of opponents of law reform, who used it as an opportunity to rally opposition to the bill. When the bill came to a second reading, the Liberal/Country opposition voted as a bloc against it and over half of the Labor side, freed by the ability to vote according to conscience, joined them, to defeat it 67 votes to 28.^[12] During the 1980s and 1990s, Sydney was hit by a spate of Gay bashings, hate crimes and murders, a large number of which remain unsolved.^[13] This has been the subject of a Police investigation, 'Operations Taradale', and called into question issues relating to Police methods at the time and the state of homophobia in society and the police at the time.^[14]

The 1984 law reforms decriminalised homosexual sex, whilst the 2003 amendments equalised the age of consent for homosexual and heterosexual forms of sex.

Historical conviction expungement

Gay Liberal Party Coogee MLA Bruce Notley-Smith introduced a private members bill called the Criminal Records Amendment (Historical Homosexual Offences) Bill 2014 to allow those convicted of historical private consensual adult gay male same-sex sexual activity to apply for it to be expunged. These historical convictions have denied men to employment, volunteering, traveling overseas and education.^[15] On 23 October 2014, the New South Wales Parliament unanimously passed the Criminal Records Amendment (Historical Homosexual Offences) Bill 2014 in both houses and was made into law by Assent.^[15] The law became effective on November 24, 2014.^[16] South Australia was the first jurisdiction within Australia to develop a scheme in 2013, followed by Victoria in 2015. The Australian Capital Territory also passed a similar bill in October 2015. This bill allows those convicted of historical private consensual adult gay male same-sex sexual activity, to apply for it to be expunged.^[17]

Recognition of same-sex relationships

De facto couples

In 1999, the Property (Relationships) Legislation Amendment Act was introduced, which recognised same-sex couples in a variety of legislation, including the Workers Compensation Act, the Victims Compensation Act and the Criminal Procedure Act. Further rights were given in 2002 through the Miscellaneous Acts Amendment (Relationships) Act

On 6 September 1999, the Attorney General of New South Wales Jeff Shaw requested the Law Reform Commission of New South Wales to inquire into Relationships and the Law.^[18] The inquiry, which followed new relationship and property laws at the time, also looked at children of same-sex couples and recognition of their relationship with both parents. The commission's report on relationships was very extensive, included many recommendations and took the LRC itself seven years to complete. The report was handed to the previous NSW Attorney-General in June 2006. New South Wales Attorney General John Hatzistergos blocked access to the report for two years on the grounds he would table it in parliament sometime in the future. Previous reports by the commission have recommended stepparent adoption provisions to include same-sex de facto relationships.^[19][20]

The City of Sydney created a Relationships Declaration Program in 2005 available for all couples offering limited legal recognition. While making a relationship declaration does not confer legal rights in the way marriage does, it may be used to demonstrate the existence of a de facto relationship within the meaning of the NSW Property (Relationships) Act 1984 and other legislation.^{[21][22][23][24][25][26]} In March 2010, the City of Blue Mountains announced it would also offer all couples limited legal recognition.^[27]

On 4 June 2008, the New South Wales Parliament passed the Miscellaneous Acts Amendment (Same Sex Relationships) Bill 2008^[28] which recognises co-mothers as legal parents of children born through donor insemination, provides birth certificates allowing both mums to be recognised, creates amendments to 57 pieces of NSW legislation to ensure de facto couples, including same-sex couples, are treated equally with married couples, and creates amendments to the NSW Anti-Discrimination Act to ensure same-sex couples are protected from discrimination on the basis of their "marital or domestic status" in employment, accommodation and access to other goods and services. The bill passed with a vote of 64-11. The Law Reform Commission report recommended an optional statewide registry for same-sex couples. Although the Government initially declined to implement this reform back in 2007,^[29][30] it proceeded in creating a relationships registry in 2010 (see below).

Registered relationships

In February 2010, New South Wales Attorney General Hatzistergos announced that the state government will introduce legislation for a statewide relationships register modelled on ones already in place in the ACT, Victoria and Tasmania. Entering into a "registered relationship" provides conclusive proof of the existence of the relationship, thereby gaining all of the rights afforded to de facto couples under state and federal law without having to prove any further factual evidence of the relationship. In this way, a registered relationship is similar to a registered partnership or civil union in other parts of the world. The law came into effect on 1 July 2010.^[31]

The Relationships Register Bill 2010 was introduced to the NSW Legislative Assembly on 23 April 2010. The bill was approved by the NSW Legislative Assembly on a 62-9 vote on 11 May 2010, and then by the NSW Legislative Council (upper house) on a 32-5 vote on 12 May.^[32][33] The bill was assented on 19 May 2010.^[34] The law took effect on 1 July 2010.^[35][36]

Attempts at legalising same-sex marriage

In November 2013, a bill to legalise state-based same-sex marriage failed in the upper house of parliament by 21 votes to 19.^[37] In December 2013, the Australian Capital Territory's Same Sex Marriage legislation was declared unconstitutional by the High Court of Australia due to inconsistency with the federal Marriage Act 1961. This may mean that the NSW parliament does not have the legal capacity to legislate for same-sex marriage even if it wanted to.^[38]

Recognition of international same-sex marriage

Since November 14, 2014 international same-sex marriage is fully recognised under the NSW relationship register, by new laws and regulations that are administered by the NSW Attorney-General and the NSW Registry of Births, Deaths and Marriages.^[39] As of January 2016, Queensland, Tasmania and Victoria also recognise international same-sex marriages.

Marriage equality motion conscience vote

On June 24, 2015, the Parliament of New South Wales passed a motion unanimously calling on the federal government, to pass the Marriage Equality Bill 2015, based on a conscience vote.^[40][41][42] Both Tasmania and Western Australia also passed a similar motion.

Motion wording:

1. Notes Members of the New South Wales Parliament and community hold various views on the issue of marriage equality 2. Wishes our federal colleagues a respectful debate that is tolerant of all views 3. Notes the importance of MPs being free to express their own view and the views of their electorates on this issue

Discrimination protections

In 1977, the Anti-Discrimination Act 1977^[43] which prohibits discrimination in places of work, the public education system, delivery of goods and services, and other services such as banking, health care, property and night clubs was passed in New South Wales.^[44] Among other things, it covers homosexuality, marital or domestic status, transgender status, as well as HIV/AIDS status. Homosexuality was added in 1983, vilification of certain groups was added in 1993, transgender status and HIV/AIDS status (under disability) was added in 1996 and then in 2008, marital or domestic status was added.

Federal law also protects LGBT and Intersex people in New South Wales in the form of the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013.^[45]

Abolition of gay panic defence

In May 2014, the NSW Parliament passed a law (unanimously in both houses) that abolishes the "gay panic defence" within common law. The law commenced in June 2014.^[46] The only states left in Australia to still have the gay panic defence are Queensland and South Australia. ^[47]

Adoption and parenting rights

Adoption

Same-sex adoption has been legal since 15 September 2010, when the Adoption Amendment (Same Sex Couples) Act received royal assent and entered into force.^[48] In July 2009 the Law and Justice Committee of the New South Wales Parliament recommended that the Adoption Act should be amended to allow same-sex couples the right to adopt. Committee chair Christine Robertson said, "The committee has concluded that reform to allow same-sex couples to adopt will help to ensure that the best interests of children are met by our adoption laws."^[49][50] Initially, the Labor government refused to implement the recommendations, arguing that there was no broad community support for such legislation.^[51] However, in August 2010, independent MP and Lord Mayor of Sydney Clover Moore introduced the Adoption Amendment (Same Sex Couples) Bill as a private member's bill. Both the NSW Premier Kristina Keneally and the Opposition Leader Barry O'Farrell allowed a conscience vote on the bill.^[52][53] The bill was approved by the Legislative Assembly on 2 September 2010 in a 43-45 vote,^[54][55] and by the Legislative Council on 9 September 2010 in a 22-15 vote.^[56][57] The Act allows same-sex couples living in a de facto or registered relationship to adopt jointly, as well as to adopt their partner's children (step-child adoption). Since 2015, Tasmania, New South Wales, Western Australia, Victoria and the Australian Capital Territory allow adoption equality for same-sex couples.

Assisted reproduction

All women (regardless if they are single, married or in a relationship with another person) are permitted access to IVF treatment in New South Wales under the Assisted Reproductive Technology Act 2007. Medicare funding, however, requires the couple to be medically infertile, which makes it only available to heterosexual couples because of an assumption that the man is medically infertile. A lesbian couple would likely not have a medical condition that makes the couple infertile.^[58] The Artificial Conception Act 1984 (NSW) gave children conceived via artificial insemination the same status as children conceived naturally; in other words, the birth mother and her husband were deemed to be the legal parents. This was later repealed and updated with the Status of Children Act 1996 (NSW) which said the same thing, but accounted for a donated ova. The specific wording did not allow the birth mother's female partner to be legally recognised. The Miscellaneous Acts Amendment (Same Sex Relationships) Bill 2008^[28] passed on 4 June 2008 recognises co-mothers as legal parents of children born through donor insemination and provides birth certificates allowing both mums to be recognised. Adoption and surrogacy reforms were not included. Male couples were excluded from most of the parenting-related legislation.^[29][30] There has been controversy with clause 17 in the Assisted Reproductive Technology Act 2007 that allows donors to nominate classes of people to whom their sperm or eggs may not be given,^[59] opening the way for discrimination against ethnic, religious and other minorities, including same-sex couples.^[60]

Surrogacy

Prior to 2007, there were no laws in place to deal with surrogacy in the state. This changed with the Assisted Reproductive Technology Act 2007 which declared commercial surrogacy to be illegal and all surrogacy contracts to be void.^[61] The bill reiterated previous legislation, declaring that the birth mother and her husband are lawfully deemed to be the legal parents.^[62]

The Surrogacy Bill 2010 passed the NSW parliament on 11 November 2010 and the bill got royal assent on 16 November 2010. The law commenced on 1 March 2011.^[63] The surrogacy law only will recognise non-commercial surrogacy arrangements (the laws are also retrospective). Commercial surrogacy, advertising surrogacy arrangements and also going overseas to enter into a surrogacy arrangement is illegal under the Surrogacy Act 2010.^[64]

Registration of sex other than male or female

In April 2014, the High Court of Australia ruled that Australian law allows the registration of a "change of sex" to "non-specific" and does not require one to identify themselves as either male or female on identity documents.^[65] The case originated in New South Wales.

Summary table

Same-sex sexual activity legal	(since 1984 for males; always for females)
Equal age of consent
Anti-discrimination state laws for sexual orientation
Anti-discrimination state laws for gender identity or expression
Hate crime laws include sexual orientation
Hate crime laws include gender identity or expression
Gay sex criminal records expunged
Gay panic defence abolished
Recognition in state law of same-sex couples as domestic partners
Step adoption by same-sex couples
Joint adoption by same-sex couples
Access to IVF for lesbians
Same-sex marriages	(federal jurisdiction)
MSMs allowed to donate blood	(one year deferral - Australia-wide)
Change of gender marker on birth Certificate	(Requires SRS)[66]

See also

• LGBT rights in Australia
• Recognition of same-sex unions in Australia

References

External links

• The Gay and Lesbian Rights Lobby
• Community Action Against Homophobia