LGBT rights in Victoria

LGBT rights in Victoria
Victoria, Australia
Same-sex sexual activity legal?	Legal since 1981
Gender identity/expression	Yes (both state and federal law)
Discrimination protections	Yes (both state and federal law)
Family rights
Recognition of relationships	Domestic partnership registries since 2008
Adoption	Yes (not yet in effect)

The Australian state of Victoria is regarded as one of the most progressive jurisdictions in respect of lesbian, gay, bisexual and transgender (LGBT) rights. LGBT people in Victoria have many of the same rights as non-LGBT people, though same-sex couples are banned from entering into civil marriage, which is a field of federal jurisdiction.

Laws regarding homosexuality

Homosexuality was a crime in Victoria until December 1980, when the Hamer Liberal government repealed the state's sodomy laws. (Until 1949, the death penalty was still on the books for sodomy in Victoria.) The law passed 72–7, and went into effect in March 1981. The age of consent for homosexual acts was set at 18. However, a loosely worded "soliciting for immoral purposes" clause, inserted by dissident Liberals, saw police continue to harass homosexual men well into the 1980s.

Gay activism in Australia began in Victoria, particularly in Melbourne. The Melbourne-based Daughters of Bilitis (Australia), which was inspired by the American Daughters of Bilitis group, was Australia's first openly homosexual political organisation, although it were short-lived. It were followed by the gay rights organisation Society Five, which formed in 1971. Additional rights organisations followed, including the Homosexual Law Reform Coalition in 1975 and the Gay Teachers Group in the late 1970s, both of which were also based in Melbourne.

The Victorian LGBT community monitored events in South Australia surrounding the decriminalisation of homosexuality which took place between 1972 and 1975. In 1976, The Age reported that police had used entrapment to make mass arrests at Victoria's Black Rock Beach which angered the gay community and gave the issue wide public attention. Amidst the storm of protest and debate, widespread support for the decriminalisation of male homosexual acts surfaced within the political mainstream.

The age of consent for homosexual acts was equalised to 16 in 1991 by the Crimes (Sexual Offences) Act 1991.

Historical conviction expungement

Since 1 September 2015, an individual or an appropriate representative of a deceased person can apply to expunge historical convictions for homosexual sexual activity, that is no longer a criminal offence. The scheme was created via the Sentencing Amendment (Historical Homosexual Convictions Expungement Act) 2014, which was passed by the Parliament of Victoria in October 2014 and received Royal Assent on 21 October 2014, and came into effect on 1 September 2015.

Application to have a conviction expunged can be made to the Secretary of the Department of Justice & Regulation. After a conviction is expunged the individual can claim not to have been convicted or found guilty of that offence, ensuring they will not be required to disclose such information and that the conviction does not show up on a police records check. Without the law, men who were convicted have had to deal with consequences, including restrictions on travel and applying for some jobs.

South Australia was the first Australian jurisdiction to introduce an expungement scheme, followed by New South Wales. The Australian Capital Territory also passed a similar bill in October 2015.

Recognition of same-sex relationships

Relationship registers

In April 2007, the City of Melbourne set up a "Relationship Declaration Register" for all relationships and carers, and the City of Yarra launched its Relationship Declaration Register the following month. Under the programs two people may declare that they are partners and have this declaration recorded in the Relationship Declaration Register. Though the register does not confer legal rights in the way traditional marriage does, it may be used to demonstrate the existence of a de facto relationship in relation to the Property Laws Act 1958, the Administration and Probate Act 1958 and other legislation involving domestic partnerships.

Domestic partnerships

Since 2008, Victoria has allowed same-sex couples to register their relationships as a domestic partnership, specifically a "domestic relationship", under the Relationships Act 2008. A bill was introduced in the Parliament in December 2007 by the Bracks Labor government to allow same-sex couples to register their relationships with the Registry of Births, Deaths and Marriages and to amend 69 other pieces of legislation to provide for couples who are in registered relationships. The bill was passed by the Victorian Legislative Assembly on 12 March 2008 on a vote of 54 to 24. The Legislative Council voted in favour of the bill without amendments on 10 April 2008 and it was approved and given Royal Assent on 15 April 2008. The Relationships Register came into operation on 1 December 2008.

In October 2015, the Andrews Labor government announced its intention to introduce legislation to make Victoria the third state in the nation to register, in its relationships register, marriages and civil partnerships of same-sex couples performed overseas, so long as one member of the couple is a Victorian resident. The Relationships Amendment Bill 2015 was introduced to the Parliament on 6 October 2015, passing the Legislative Assembly on 12 November 2015. The bill proceeded to the Legislative Council, where debate resumed on 10 December 2015. An amendment made at committee stage was agreed to by a majority of the Council. The amendment inserted a new clause, Section 10(4): "The register may conduct a ceremony in connection with the registration of a registrable domestic relationship under this section." The amendment, previously moved by Greens MP Sam Hibbins in the lower house, would allow couples the option of holding an official ceremony when registering their relationship. The bill returns to the Assembly for consideration of the Council's amendment, though the Parliament has risen for the summer break and next sits on 2 February 2016. Section 2 of the bill has a default commencement date of 1 October 2016.

De facto relationship recognition legislation

In August 2001, the Statute Law Amendment (Relationships) Act 2001 and the Statute Law Further Amendment (Relationships) Act 2001 amended 60 Acts in Victoria to give same-sex couples, called domestic partners, some rights equal to those enjoyed by de facto couples, including hospital access, medical decision making, superannuation, inheritance rights, property tax, landlord/tenancy rights, mental health treatment, and victims of crime procedures.

Civil union proposal

In March 2006, openly-gay independent Victorian MP Andrew Olexander proposed a private member's bill to allow civil partnerships in the state, but the state government would not allow it to be drafted by the parliamentary counsel.

Adoption and parenting rights

Adoption

Victorian is to allow same-sex couples to adopt children by 1 September 2016. In May 2014, the state conference of the then opposition Victorian Labor Party unanimously approved a change in the party's platform, in support of full adoption rights for same-sex couples. After Labor won government at the November 2014 state election, the newly appointed Equality Minister Martin Foley promised to amend the Adoption Act 1984 to allow for adoptions by same-sex couples. Foley said Labor would also tackle other inequalities, including the inability of a step-parent to adopt their partner's child and the inability of a gay couple to jointly adopt a child conceived through IVF. A review of Victoria's adoption laws, commissioned by former chief parliamentary counsel Eamonn Moran QC, handed a final report to the Minister on 8 May 2015.

A bill to give same-sex couples adoption rights was introduced to Parliament on 6 October 2015. On 22 October 2015, the bill was debated for several hours in the Legislative Assembly, passing its second reading by a vote of 54 to 26, with 7 abstentions. Despite failing to pass an amendment designed to allow faith-based adoption agencies to refuse to allow same-sex couples to adopt children, the Liberal/National (Coalition) opposition elected to have a conscience vote on the legislation. Six of the eight Nationals lower house MP's voted in favour of the bill, whilst all Liberal MP's voted against. The bill proceeded to the Legislative Council, where debate resumed on 12 November 2015. The bill, as it related to allowing adoptions by same-sex couples, passed comfortably by a margin of 31 to 8. However, a bare majority of Coalition and crossbench members of the Council narrowly passed an amendment eliminating amendments to the Equal Opportunity Act 2010, which would have prevented faith-based organisations from being able to refuse adoption orders for same-sex couples. Of the four adoption agencies in Victoria providing "stranger" adoptions, only one faith-based group providing adoption services, Catholic Care Victoria, which was responsible for 5 Victorian adoption orders in 2014, has expressed its desire to make use of such an exemption, and had threatened to cease providing adoption services if it was compelled to assist adoptions to same-sex couples. The bill in its amended form returned to the Legislative Assembly, which passed the amended bill on 9 December 2015. The bill received Royal Assent on 15 December 2015, becoming the Adoption Amendment (Adoption by Same-Sex Couples) Act 2015. The law is to go into effect on 1 September 2016 at the latest.

Prior to that reform, same-sex couples could only be appointed as foster parents or guardians, and did not have the right to adopt a child together – even if that child had been in their care for years.

In response to the 2007 Victorian Law Reform Commission report into assisted reproduction, surrogacy and adoption, the then Brumby Labor government stopped short of allowing same-sex couples full adoption rights.

A Supreme Court of Victoria decision in 2010 concerning the Charter of Human Rights and Responsibilities Act 2006 granted individual gay men and lesbian women some adoption rights by concluding that the state's Adoption Act 1984 "permits one person in a same-sex couple to adopt", opening the door to step-parent adoption for some couples. The Liberal Government of 2010–14 briefly examined the issue of same-sex adoption in the later stages of its term in office, though despite Premier Denis Napthine expressing an openness to reform, the issue was never substantially tackled by the Government.

Assisted reproduction and surrogacy

In May 1988, Victoria became the first state in Australia in which a child was born by use of IVF surrogacy. In July 1988, sections 11, 12, and 13 of the Infertility (Medical Procedures) Act 1984 were commenced to prevent a repetition of IVF surrogacy in Victoria, by prohibiting the use of IVF technology on women who have not been diagnosed as infertile and rendering commercial and altruistic surrogacy arrangements void. In addition, only women who were married were allowed to access IVF treatment. Then in 1997, women in de facto relationships with men were allowed access to IVF treatment under the Infertility Treatment (Amendment) Act 1997.

On 28 July 2000, re McBain v State of Victoria, Justice Sundberg of the Federal Court of Australia concluded that the Victorian legislation infringed the prohibition on discrimination found in section 22 of the Sex Discrimination Act. This eliminated any marriage requirement, but did not clearly address the medical needs requirement. This legal decision opened the door for lesbian couples to use IVF procedures.

In June 2007, the Victorian Law Reform Commission released its final report recommending that the laws be modified to allow more people to use assisted reproductive technologies and to allow same-sex couples to adopt and be recognised as parents to their partner's children. The proposed changes would also mean drastic reforms to surrogacy which, while technically legal, was practically impossible in Victoria; a woman would no longer have to be clinically infertile to be a surrogate mother. In addition, parents who have children through surrogacy would be able to go to the County Court and apply for a substitute parentage order for legal recognition. Birth certificates could use the word parent instead of mother and father.

Victoria adopted most of the 202 recommendations of the Victorian Law Reform Commission in legislation which was introduced to Parliament in September 2008. This made IVF legal for all women (except sex offenders), and gave parents of surrogate children, including female same-sex partners, greater parenting rights. Altruistic surrogacy would become legal, while commercial surrogacy would remain illegal.

The lower house voted 47–34 in favour of the Assisted Reproductive Treatment Bill 2008, with all Coalition members voting against it. After passing the upper house by just two votes, the bill was amended and forced back for another vote in the lower house, where it passed. The bill subsequently received Royal Assent on 4 December 2008 and became effective from 1 January 2010.

Discrimination protections

Since 2000, Victoria prohibits discrimination based on sexual orientation and gender identity under the Equal Opportunity (Gender Identity and Sexual Orientation) Act 2000 – which amended the Equal Opportunity Act 1995.

Since 2010, the Equal Opportunity Act 1995 has been repealed and replaced with the Equal Opportunity Act 2010 - that still includes both sexual orientation and gender identity.

Federal law also protects LGBT and Intersex people in Victoria in the form of the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013.

In December 2014, the Andrews Labor government promised to rewrite equal opportunity laws to make it harder for faith-based organisations, such as schools, to discriminate against certain employees because of their sexual orientation and religious beliefs. That reform is yet to be presented to the Parliament.

Gender and Sexuality Commissioner

In July 2015, Minister for Equality Martin Foley announced the appointment of the inaugural Gender and Sexuality Commissioner, Rowena Allen. The Commissioner has a broad role aimed at integrating the advocacy of LGBTI rights within the Government. Types of roles currently under scrutiny include the streamlining federal and state laws to ensure passports and birth certificates align with a person's affirmed gender, as well as strengthening anti-discrimination protections in the workplace for transgender workers.

HIV transmission law repeal

In 2015, the Victorian Government announced it would repeal Section 19A of the Crimes Act, a law which singled out intentional HIV transmission for harsher penalties of up to 25 years imprisonment, while the maximum penalty for manslaughter is 20 years. As a result of the reform, intentional infection of HIV is considered under existing criminal offences such as "causing serious injury". The Crimes Amendment (Repeal of Section 19A) Act 2015 passed the Legislative Assembly on 7 May 2015 and passed, with bipartisan support, the Legislative Council on 28 May 2015, receiving royal assent on 2 June 2015, and went into effect immediately.

Summary table

Same-sex sexual activity legal	(since 1981 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	(Relationships Amendment Bill 2015 pending)
Step adoption by same-sex couples
Joint adoption by same-sex couples	(Legislation to go into effect on 1 September 2016)
Access to IVF for lesbians
Same-sex marriages	(Federal jurisdiction)
MSMs allowed to donate blood	(One year deferral - Australia-wide)

See also

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