LGBT rights in Queensland | |
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Queensland (Australia) |
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Same-sex sexual activity legal? | Yes, since 1990 |
Recognition of relationships |
Civil partnerships since 2011[1], de facto status since 2002 |
Adoption | No. Foster parenting allowed. |
Discrimination protections | Yes |
Same-sex sexual activity was decriminalized in 1990. In 2002, the definition of "de facto partner" was expanded to include same-sex couples, giving same-sex couples many of the same rights and protections as opposite-sex couples, yet they are specifically banned from any sort of adoption. On 6 December 2011, the Civil Partnerships Act 2011 became law - the law is yet to commence.
Contents |
Law regarding same-sex sexual activity
Male same-sex sexual activity was illegal in Queensland until 1990. The Fitzgerald Report (Queensland 1989, p. 377) recommended that the Criminal Justice Commission review the laws governing voluntary sexual behaviour. In November 1990, the state decriminalised consensual sexual activity between adult males in private. Queensland’s age of consent is 16 which is the age of consent for oral and vaginal sex, but anal intercourse (“sodomy”) involving any person (male or female) aged under 18 is a criminal offence under the "sodomy law" (Section 208 of the Criminal Code 1899) - punishable with up to 14 years imprisonment. Queensland is the only state or territory in Australia which does not have a truly equal age of consent.[2] The Bligh Government has refused to debate this issue despite support for reform in this area.[3] The opposition party (LNP) has no policy to change the laws governing the age of consent; and no such policy is on the table for discussion.[4]
Discrimination protections
A person who is in a same sex, spousal or intimate personal relationship is protected by the Domestic and Family Violence Protection Act 1989. So couples in same-sex relationships who are victims of relationship violence may take out domestic violence orders against a violent partner, and other protective measures, including counselling services.
On 29 November 2002 Queensland Parliament passed the Discrimination Law Amendment Act 2002 which reformed a wide range of areas in the Queensland Ant-Discriminition Act 1991 such as couples (whether same sex or de-facto), including transgenders (“gender identity”) and “sexuality” in protection under existing Anti-Discrimination and Anti-Vilification legislation. The areas covered are work and work related; education; goods and services; superannuation and insurance; disposal of land; accommodation; club membership; administration of state laws and programs; local government; existing partnership and in pre-partnership.[5]
Australia does not outlaw discrimination based on sexual orientation and gender identity at the federal level at various levels besides employment. Federal employment protection does include sexual preference in the federal Fair Work Act 2009.[6] However, in response to Australia's obligation to implement the principle of non-discrimination in employment and occupation pursuant to the International Labour Organisation Convention No.111 (ILO 111), the Human Rights and Equal Opportunity Commission (HREOC) Act established the HREOC in 1986, and empowers it to investigate complaints of discrimination in employment and occupation on various grounds, including sexual orientation, and to resolve such complaints by conciliation. If it cannot be conciliated, the Commission prepares a report to the federal Attorney-General who then tables the report in Parliament. It is important to note that such discrimination is not rendered unlawful under the Act. The Human Rights (Sexual Conduct) Act 1994 provided that sexual conduct involving only consenting adults (18 years or over) acting in private would not be subject to arbitrary interference by law enforcement. This applies to any law of the Commonwealth, State or Territory.[7] As of 2007, The Commonwealth Government does not provide protections for "sexual orientation and gender identity" as yet in the Human Rights Commission Act 1981 (Commonwealth legislation).[8]
Recognition of same-sex relationships
Civil partnerships
On 30 November 2011, the Civil Partnerships Bill brought on by Deputy Premier Andrew Fraser passed through the Legislative Assembly, with 47 MPs voting yes and 40 no. The Civil Partnerships Act will allow same-sex and heterosexual couples to formally register their relationships with the Queensland Registry of Births, Deaths and Marriages. The legislation aligns Queensland with Tasmania, Victoria, the ACT and NSW, which have already made similar reforms.[9]
In June 2008, Queensland Attorney-General Kerry Shine announced that the Queensland Government would begin considering a relationships registry for same-sex couples in the second half of 2008.[10] A Galaxy poll conducted in December 2008 showed 60 percent of people in Queensland supported civil unions with 54 percent supporting gay marriage.[11]
However, no progress was made on the issue until late 2011. On 21 October 2011, Deputy Premier Andrew Fraser announced that he would introduce a private members' bill to legalise civil partnerships, which would allow same-sex relationships to be officially registered in the state and would provide the opportunity for an official ceremony. Similarly to the existing recognition of same-sex couples as de facto partners, civil partnerships would provide most of the rights of marriage (but without adoption rights). The Civil Partnerships Bill 2011 was introduced in October 2011. It passed its first reading on a 46-30 vote.[12][13] On 30 November 2011, it passed its second and third reading on a 47-40 vote, with most Labor MPs voting in favour and the LNP members voting as a bloc against it.[14] The bill that passed got royal assent on 6 December 2011 to turn it into an Act (number 46)[15][16] and it is unknown when it will enter into force. See section 2 (page 10) of the bill that quotes - "This Act commences on a day to be fixed by proclamation."
De facto recognition
In December 2002, with the passing of the Discrimination Law Amendment Act 2002, the definition of "de facto partner" was amended to include same-sex couples. Thus, same-sex partners are now recognised in 61 pieces of legislation, including superannuation entitlements, workers compensation, etc. Amendments were also made to the Property Law Amendment Act to recognize same-sex partners in regard to the distribution of property in the event of a separation. Queensland's Industrial Relations Act 1999 gives same-sex couples access to state-based parental, family, bereavement and carer’s leave provisions. The Equal Opportunity in Public Employment Act 1992 and the Public Service Act 2008 promotes equality of employment in the public sector. Furthermore, if a gay or lesbian couple came to Queensland from another state where they were recognised, Queensland will recognise them as a couple.[17]
While the changes in Commonwealth legislation in 2008 provided complete recognition of same-sex couples at the federal level, Queensland laws are now contradictory, particularly when children are involved. With the federal legislation, the non-biological parent can now be made to pay child maintenance. However in Queensland, that same person who has to pay child maintenance is not even recognised as a parent. Without some sort of legal guardianship, health services may not accept the other parent authorising procedures for the child. If the biological parent dies, his or her partner would not be considered the next of kin.[17]
Same-sex marriages are currently not permitted under Australian federal law. Since 2004, the Commonwealth Marriage Act 1961 has defined marriage as "the union between a man and a woman". In addition, Australian law expressly declares that unions between same-sex couples entered into outside the country are not to be recognised as marriage in Australia.
A community group known as the Cairns Lesbian, Gay, Bisexual and Transgender Alliance approached Cairns Regional Council in February 2011 to adopt a relationship register mirroring Sydney & Melbourne City Councils http://www.cairns.qld.gov.au/__data/assets/pdf_file/0003/35994/24august2011_ordinary_cl12.pdf, a vote is expected on the policy before June 2012, http://www.cairns.com.au/article/2011/08/23/179211_local-news.html.
Adoption and family planning
In Queensland, same-sex couples cannot legally adopt a child, but they may become foster parents.[18]
The Human Rights and Equal Opportunity Commission (HREOC) issued a report in 2007 entitled National Inquiry into Discrimination against People in Same-Sex Relationships recommended amending or creating laws recognising the relationship between a child and both same-sex parents. In particular, "‘Stepparent adoption’ laws should more readily consider adoption by a lesbian co-mother or gay co-father." This will require amendments to remove the prohibition on same-sex stepparent adoption in all state and territory laws other than in WA, the ACT and Tasmania." The final report of the Same-Sex: Same Entitlements Inquiry was tabled in Parliament on 21 June 2007.[19]
The state's adoption rules were revised in August 2009 with the Adoption Act 2009 which only allows opposite sex couples who are married or in a de facto relationship for two years to adopt.[20] The Act requires that applicants for both adoption and stepparent adoption be married or de facto and "the person’s spouse is not the same gender as the person" making the application.[21] Although discriminatory, the Act specifies that the Anti-Discrimination Act is not to apply. One of the Act's key features is to allow foster parents to more easily adopt the child they are fostering. Phil Reeves, the state's minister for child safety, said, "Foster carers with children in their care for a long time - often from birth - frequently express a desire to adopt these children. It is only natural that a child in this situation often feels a true part of the family they have lived with long-term."[22] Same-sex foster parents are explicitly excluded from adopting their foster children. Independent (previously One Nation) MP Dorothy Pratt said, "I must say I was very pleased there was no allowance in this bill for homosexual couples to adopt a child."[23] Ironically, upon announcement of the new legislation, Queensland Premier Anna Bligh said that "everyone - regardless of their sexual status or their gender - should be afforded the privileges of parenthood."[24][25]
Socially-infertile women (lesbians) are permitted access to IVF treatment in Queensland, but Queensland will not recognise non-genetic parents upon birth, nor will they perform stepparent adoptions for legal recognition of the non-genetic parent. The co-parent may apply to the Family Court of Australia for a parenting order, as ‘other people significant to the care, welfare and development’ of the child. It provides an important documented "status quo" so if the birth mother were to die, for example, other family members could not come and take the child. But the lesbian co-mother and gay co-father will be treated in the same way as a social parent is treated under the law; they will not be treated in the same way as a birth parent.[26]
The Surrogate Parenthood Act 1988, which commenced on 6 October 1988, prohibited all forms of surrogacy, formal and informal, paid and altruistic. All surrogacy contracts were deemed void and entering into an agreement (or offering to do so), as well as giving or receiving payment were prohibited. Any advertising in relation to surrogacy was also prohibited.[27] It became a criminal offence for a person ordinarily resident in Queensland to enter into a commercial surrogacy arrangement anywhere in the world.
In May 2008, a parliamentary committee was formed to examine whether to decriminalise altruistic surrogacy in Queensland. Commercial surrogacy was immediately ruled out.[28][29] A parliamentary report recommended legalising surrogacy only as a last resort, and people must meet several criteria, including being medically infertile or unable to carry a child.[30]
In October 2009, Attorney-General Cameron Dick released for consultation draft laws to decriminalise altruistic surrogacy and put into place certain strict requirements, including satisfying the court they have undergone counselling, received independent legal advice and have established a medical or social need for the surrogacy. The draft Bill would not restrict who can enter into a surrogacy arrangement, meaning that a couple, either married or de facto (same-sex or heterosexual) or a single person (male or female) may be the intended parent or intended parents in a surrogacy arrangement and then subsequently apply for a parentage order.[31] The government will amend the law to recognise two mothers as parents.[32] The Liberal-National opposition party countered the Labor government's moves by introducing a bill that specifically excludes single parents and same-sex couples from any new surrogacy laws. Queensland’s Attorney General called the opposition's response "offensive".[33]
The Labor government's bill, which does not restrict who can enter into a surrogacy arrangement, was tabled in November and passed 45 to 36 on 11 February 2010 with seven not voting. The opposition's surrogacy bill was dismissed, and their amendments did not pass. The decriminalisation of altruistic surrogacy allows singles and couples to enter into surrogacy arrangements and to become the parent of a child. It remains illegal for Queensland residents to enter into commercial surrogacy arrangements anywhere in the world. The law took effect on 1 June 2010.[34][35][36]
See also
- LGBT rights in Australia
- Recognition of same-sex unions in Australia
- Gay and Lesbian Kingdom of the Coral Sea Islands
References
- ^ Kym Agius (1 December 2011). Same sex civil union bill passes in Qld. The Sydney Morning Herald. Fairfax Media.
- ^ "Criminal Code 1899 - section 208". Austlii. http://www.austlii.edu.au/au/legis/qld/consol_act/cc189994/s208.html. Retrieved 2010-02-18.
- ^ "The age of consent". ABC News. 10 September 2009. http://www.abc.net.au/unleashed/29134.html. Retrieved 2010-02-18.
- ^ "Letter from Opposition Leader John-Paul Langbroek". http://www.queerradio.org/AOC250510_from_Opposition_Leader_150dpi.jpg.
- ^ "Sexuality Discrimination and Vilification". Anti-Discrimination Commission Queensland. http://www.adcq.qld.gov.au/Brochures07/sexuality.html. Retrieved 2007-09-03.
- ^ Fair Work Act 2009
- ^ "Human Rights (Sexual Conduct) Act 1994". Austlii. http://www.austlii.edu.au/au/legis/cth/consol_act/hrca1994297. Retrieved 2008-05-01.
- ^ "Human Rights Commission Act 1981". Austlii. http://www.austlii.edu.au/au/legis/cth/num_act/hrca1981267. Retrieved 2008-05-01.
- ^ Daniel Hurst (30 November 2011). Queensland's civil unions debate blow by blow. Brisbane Times. Fairfax Media.
- ^ Dennett, Harley. "Queensland considers relationship register". Sydney Star Observer. http://www.starobserver.com.au/news/australia-news/new-south-wales-news/2008/04/20/queensland-considers-relationship-register/12821. Retrieved 2008-06-11.
- ^ Media Release. "New Poll Demonstrates Support for Further Gay Law Reforms in Queensland". Galaxy. http://www.qahc.org.au/election09. Retrieved 2009-03-05.
- ^ (25 October 2011). QLD civil unions bill passes first reading. Sydney Star Observor.
- ^ Daniel Hurst (26 October 2011). Gay adoption a step too far for Bligh. Brisbane Times. Fairfax Media.
- ^ Kym Agius )1 December 2011). Bligh asks ALP to support gay marriage. The Sydney Morning Herald. Fairfax Media.
- ^ Civil Partnerships Act 2011. Retrieved on 12 January 2012.
- ^ Acts as passed in 2011. Office of the Queensland Parliamentary Counsel. Retrieved on 12 January 2012.
- ^ a b Butler, Nicole (22 April 2009). "Same sex couples in Queensland push for equal parental rights". ABC News. http://www.abc.net.au/am/content/2008/s2549164.htm. Retrieved 2009-08-15.
- ^ "Same sex couples". Legal Aid Queensland. Archived from the original on 2007-08-12. http://web.archive.org/web/20070812170635/http://www.legalaid.qld.gov.au/Legal+Information/Relationships+and+children/Relationships/Same+sex+couples.htm. Retrieved 2008-05-01.
- ^ Same-Sex: Same Entitlements: Summary of Recommendations. Human Rights and Equal Opportunity Commission. Retrieved on 12 January 2012.
- ^ "Bills introduced to the 53rd Parliament". The State of Queensland. http://www.legislation.qld.gov.au/Acts_Passed/Acts_Passed_NUM_2009.htm. Retrieved 2009-08-15.
- ^ "Adoption Bill 2009, pages 55, 65.". The State of Queensland. http://www.legislation.qld.gov.au/Bills/53PDF/2009/AdoptionB09.pdf. Retrieved 2009-08-15.
- ^ "Foster parents set to win adoption rights". Brisbane Times. 1 August 2009. http://www.brisbanetimes.com.au/queensland/foster-parents-set-to-win-adoption-rights-20090801-e52s.html. Retrieved 2009-08-15.
- ^ Heger, Ursula (7 August 2009). "Homosexuality not normal part of life, says MP Dorothy Pratt". The Courier Mail. http://www.news.com.au/couriermail/story/0,27574,25892907-3102,00.html. Retrieved 2009-08-15.
- ^ "Bligh's gay adoption stance 'confusing'". ABC News Australia. 19 August 2009. http://www.abc.net.au/news/stories/2009/08/19/2660324.htm?section=australia. Retrieved 2009-08-28.
- ^ Adoption Act 2009
- ^ "Same Sex, Same Entitlements". Human Rights and Equal Opportunity Commission. http://www.humanrights.gov.au/human_rights/samesex/report/Ch_5.html. Retrieved 2008-05-13.
- ^ "Surrogate Parenthood Act 1988". Austlii. http://www.austlii.edu.au/au/legis/qld/consol_act/spa1988242. Retrieved 2008-06-04.
- ^ Odgers, Rosemary (7 May 2008). "Surrogacy laws driving couples interstate". NEWS.com.au. http://www.news.com.au/story/0,23599,23656433-421,00.html. Retrieved 2008-06-04.
- ^ "Surrogacy ban under review". Queensland Pride. 7 May 2008. http://qlp.e-p.net.au/news/qld-surrogacy-ban-under-review-1957.html. Retrieved 2008-06-04.
- ^ Annie Guest (9 October 2008). "Queensland could allow surrogacy". ABC Australia. http://www.abc.net.au/pm/content/2008/s2386941.htm. Retrieved 2008-10-10.
- ^ "Current Consultation Activities: Surrogacy Bill 2009 and Exploratory Notes". Queensland Government. 29 October 2009. Archived from the original on 2008-01-24. http://web.archive.org/web/20080124215606/http://www.justice.qld.gov.au/509.htm. Retrieved 2009-10-31.
- ^ Marszalek, Jessica (29 October 2009). "Qld to allow surrogacy from November". Sydney Morning Herald. http://news.smh.com.au/breaking-news-national/qld-to-allow-surrogacy-from-november-20091029-hmdb.html. Retrieved 2009-10-31.
- ^ Joal (12 November 2009). "Gay surrogacy for Queensland?". Same Same. http://www.samesame.com.au/news/local/4779/Gay-Surrogacy-For-Queensland.htm. Retrieved 2009-11-18.
- ^ Odgers, Rosemary (11 February 2010). "Labor MPs to cross the floor on surrogacy Bill". Courier Mail. http://www.news.com.au/couriermail/story/0,23739,26708760-3102,00.html. Retrieved 2010-02-16.
- ^ Surrogacy Act 2010
- ^ Proclamation Subordinate Legislation 2010 No. 86 made under the Surrogacy Act 2010
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