LGBT rights in the Northern Territory

LGBT rights in the Northern Territory
Same-sex sexual intercourse legal status Always legal for women; legal since 1983 for men
Equal age of consent since 2003
Gender identity/expression Change of sex requires divorce if married and sexual reassignment surgery (divorce requirement expires on 9 December 2018)
Discrimination protections Yes (both federal and territory law)
Family rights
Recognition of
relationships		 Same-sex marriage since 2017; unregistered de facto unions recognised by territory law since 2003 (no civil union or relationship register)
Adoption Yes (since 2018)

Lesbian, gay, bisexual, and transgender (LGBT) persons in Australia's Northern Territory face legal challenges and discrimination not experienced by non-LGBT residents. However, the liberalisation of the rights of lesbian, gay, bisexual and transgender (LGBT) people in Australia's Northern Territory has been a gradual process. Homosexual activity has been legal since 1983 with an equal age of consent since 2003. Same-sex couples are recognised as de facto relationships, though there is no civil union or domestic partnership registration scheme available. LGBT people are protected from discrimination by both territory and federal law, though the territory's hate crime law does not cover sexual orientation or gender identity. The territory was the last jurisdiction in Australia to legally allow same-sex couples to adopt children.

Laws regarding homosexuality

The Northern Territory became self-governing in 1978 and the unicameral territory Parliament, headed by the conservative Country Liberal Party Government, passed and the territory Criminal Code Act in October 1983.[1] This code legalised some homosexual sex acts between consenting adult males in private, though imposed a consent age of 18 for such acts, as opposed to an age of 16 for heterosexual sex acts.[2] The code furthermore banned homosexual anal sex and similar acts which were done "in public", defined as occurring within the presence of only one or more observer. Age of consent equalisation laws were achieved via the Law Reform (Gender, Sexuality and De Facto Relationships) Act 2003, which went into effect in March 2004.[3]

Historical convictions expungement

The Northern Territory was the second last Australian jurisdiction to introduce legislation providing for a scheme allowing people who have previously been convicted of consensual homosexual sex acts the right to apply to have their conviction squashed or expunged. Following a story on the subject appearing on Triple J's popular youth radio program Hack, a spokesperson for the Northern Territory Labor government stated it was soliciting advice on the topic and that "every Territorian has a right to dignity and respect."[4]

On 21 March 2018, the government introduced the Expungement of Historical Homosexual Offence Records Bill 2018 into the Parliament.[5] The bill establishes an expungement scheme in line with the schemes in other states and territories.[5][6] The bill passed the Legislative Assembly on 8 May and received royal assent on 23 May 2018.[7][8] The law will go into effect on a date to be appointed by the Administrator.[8] The bill’s passage was accompanied by a formal apology to the LGBTI community within the Northern Territory for past laws by Chief Minister Michael Gunner.[7]

Recognition of same-sex relationships

De facto unions

The Northern Territory is one of two jurisdictions in Australia not to offer relationship registries or official domestic partnership schemes to same-sex couples, the other being Western Australia. Cohabiting same-sex couples can be recognised as living in a de facto relationship, which cannot be registered but can be recognised by a court declaration for certain purposes.[9]

De facto recognition was made possible following the Law Reform (Gender, Sexuality and De Facto Relationships) Act 2003 amending the territory's De Facto Relationships Act to define de facto relationships as "2 persons...not married but have a marriage-like relationship".[10] This definition for the first time in the Territory resulted in LGBT people having a mechanism in the territory courts to resolve property disputes with their ex-partners. Prior to this reform, the non-financial contributions of a same-sex partner to a relationship could not be recognised in the same way as marriage or heterosexual de facto relationships. This could lead in some cases to a non-working partner not being able to obtain an appropriate property settlement.[11] Such reforms have since made it possible for same-sex couples in the NT to have most of the entitlements as married partners.[12] It also provides for de facto partners to make certain legal agreements relating to financial matters between the partners and ex-partners.[13]

In 2009 the then-Attorney General Delia Lawrie referred the matter of relationship registers to the Northern Territory Law Reform Committee, who declined to make a recommendation on the form that relationship recognition should take.[14]

Same-sex marriage

Same-sex marriage became legal in the Northern Territory, and in the rest of Australia, in December 2017, after the Federal Parliament passed a law legalising same-sex marriage.[15]

Adoption and parenting rights

Adoption law in the Northern Territory is governed by the Adoption of Children Act. Prior to the legalisation of same-sex adoption in April 2018, the Act stipulated that territory courts "shall only make an order for the adoption of a child in favour of a couple where the man and woman are married to each other and have been so married for not less than 2 years".[16][17] An informal review of the territory's adoption laws was believed to have been undertaken by then Minister for Children and Families John Elferink in November 2015,[18] though no legislative reforms were made prior to the 2016 general election. Following that election the Territory's first gay indigenous MP Chansey Paech called for the Northern Territory to legalise same-sex adoption, indicating that some Cabinet ministers had already indicated their support to him.[19]

In October 2017, the government pledged to introduce legislation into the Parliament by the following month which would allow same-sex couples and unmarried couples the right to adopt children.[20] The government introduced the Adoption of Children Legislation Amendment (Equality) Bill 2017 into the Legislative Assembly on 23 November 2017.[21] The bill was sent to the Social Policy Scrutiny Committee, which recommended that the Assembly pass the bill.[22][23] The bill was approved by the Assembly on 13 March 2018, with independent member Gerry Wood the only MP to speak against the bill.[24][25][26] The bill received royal assent on 19 April 2018, becoming the Adoption of Children Legislation Amendment (Equality) Act 2018 and commenced the following day.[27] With respect to the right of single people to adopt, territory law allows this only in "exceptional circumstances".[28]

Northern Territory law makes no mention of commercial or altruistic surrogacy arrangements, making both practices technically legal in the state, however no clinics provide surrogacy services due to the lack of regulation.[29] Assisted reproductive technology (ART) treatments like sperm donation are small in comparison to other states and territories, though it is believed lesbian couples in the Northern Territory have been accepted by clinics for ART treatments.[30][31] Female de facto partners of pregnant women are treated under territory law as legal parents of any children born as a result of that birth.[32]

Discrimination protections

The Law Reform (Gender, Sexuality and De Facto Relationships) Act 2003[33] helped remove legislative discrimination against same sex couples in all areas of territory law – with the exception of same-sex adoption which was eventually legislated in April 2018. The Act removed distinctions based on a person's gender, sexuality or de facto relationship in approximately 50 Acts and Regulations.

The Anti-Discrimination Act 1996[34] protects territory residents from discrimination on the grounds of sex and sexuality, amongst a host of other attributes, covering the areas of education; work; accommodation; goods and services; facilities; clubs; insurance and superannuation.[35] Transgender residents are not mentioned in the Act. Such individuals are entitled however to access sex reassignment surgery and subsequently have their name and birth certificate amended accordingly.[36]

Federal law also protects LGBT and Intersex people in the Northern Territory in the form of the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013.[37]

Intersex rights

In March 2017, representatives of Androgen Insensitivity Syndrome Support Group Australia and Organisation Intersex International Australia participated in an Australian and Aotearoa/New Zealand consensus "Darlington Statement" by intersex community organizations and others.[38] The statement calls for legal reform, including the criminalization of deferrable intersex medical interventions on children, an end to legal classification of sex, and improved access to peer support.[38][39][40][41][42][43]

Summary table

Same-sex sexual activity legal (since 1983 for men; always for women)
Equal age of consent (since 2004)
Anti-discrimination territory laws for sexual orientation
Anti-discrimination territory laws for gender identity or expression
Recognition of gender transition (since 1997, still requires sexual reassignment surgery and divorce if married - divorce requirement expires on 9 December 2018).
Hate crime laws include sexual orientation
Hate crime laws include gender identity or expression
Gay sex criminal records expunged (not yet in effect)
Gay panic defence abolished
Recognition in territory law of same-sex couples as de facto couples (since 2004)
Step adoption by same-sex couples (since 2018)
Joint adoption by same-sex couples (since 2018)
Automatic IVF/artificial insemination parenthood for female partners
Access to IVF for lesbians
Conversion therapy on minors outlawed
Same-sex marriages (since 2017)
MSMs allowed to donate blood (one year deferral - Australia-wide)

See also

References

  1. ↑ NT Criminal Code key details
  2. ↑ Gay law reform in Australian States and Territories: Northern Territory pp. 48-49
  3. ↑ Gay law reform in Australian States and Territories: Northern Territory pp. 48-49
  4. ↑ "Calls for NT to wipe historical gay sex convictions". Triple J. 22 February 2017.
  5. 1 2 "Northern Territory Moves To Expunge Historical Gay Convictions". Q News. 21 March 2018.
  6. ↑ "Explanatory Statement: Expungement of Historical Homosexual Offence Records Bill 2018". Parliament of the Northern Territory. 21 March 2018.
  7. 1 2 Emily Smith (8 May 2018). "NT Chief Minister makes emotional apology to LGBTI community for 'state-sanctioned discrimination'". ABC News.
  8. 1 2 "Expungement of Historical Homosexual Offence Records Act 2018". Northern Territory Legislation Database. 23 May 2018.
  9. ↑ "Northern Territory, Australia" (PDF). Legal Recognition of Same-Sex Relationships. Jones Day. Retrieved 11 October 2016.
  10. ↑ De Facto Relationships Act NT: Sect 3A
  11. ↑ Law Reform Act Notes
  12. ↑ Same-sex relationship recognition in the NT: Australian Marriage Equality
  13. ↑ Law Reform Act Notes
  14. ↑ "Relationship Registers [2010] NTLRC 35". Austlii. Northern Territory Law Reform Committee. February 2010. Retrieved 23 October 2016.
  15. ↑ "Same-sex marriage bill passes House of Representatives, paving way for first gay weddings". ABC News. 7 December 2017.
  16. ↑ Adoption of Children Act Northern Territory: Sect 13 (Text of law prior to legalisation of same-sex adoption)
  17. ↑ Table of Eligibility, Suitability and Placement Criteria – Northern Territory Archived 9 November 2013 at the Wayback Machine.
  18. ↑ Adoption law under review in the Northern Territory Archived 17 November 2015 at the Wayback Machine.
  19. ↑ Schubert, Stephen (25 November 2016). "NT should legalise same-sex adoption: Chansey Paech". ABC News. Australian Broadcasting Corporation. Retrieved 3 December 2016.
  20. ↑ "Adoption reforms on the way in Northern Territory". NT News. 8 October 2017.
  21. ↑ "Debates: NT Legislative Assembly" (PDF). Parliament of the Northern Territory. 23 November 2017. Refer to pp. 16-17
  22. ↑ "Committee Home Page: Adoption of Children Legislation Amendment (Equality) Bill". Parliament of the Northern Territory. 23 November 2017.
  23. ↑ "Inquiry into the Adoption of Children Legislation Amendment (Equality) Bill 2017" (PDF). Social Policy Scrutiny Committee. Parliament of the Northern Territory. 13 March 2018.
  24. ↑ "Hansard and Record of Proceedings (Draft)" (PDF). Parliament of the Northern Territory. 13 March 2018.
  25. ↑ "NT passes adoption equality for same-sex couples". Human Rights Law Centre. 13 March 2018.
  26. ↑ "Northern Territory Passes Laws Allowing Same-Sex Couples To Adopt Children". Qnews Magazine. 14 March 2018.
  27. ↑ "Adoption of Children Legislation Amendment (Equality) Act 2018". Northern Territory Legislation Database. 20 April 2018.
  28. ↑ Adoption of Children Act Northern Territory: Sect 14
  29. ↑ "Call for surrogacy laws in the NT, commercial surrogacy in Australia". ABC News. 6 August 2014.
  30. ↑ "NT Election 2016: Full Scorecard of Candidate's and Parties' views on LGBTIQ rights". OutNT. 27 August 2016. Archived from the original on 19 October 2016. Kezia Purick: It was quite difficult to work out what the situation is in the NT...I contacted Repromed NT, who are the private firm in this area and they confirmed that their service is available to a Lesbian couple in the NT.
  31. ↑ "Territory sperm supplies in the hands of only three hard-working blokes". NT News. 12 October 2014.
  32. ↑ STATUS OF CHILDREN ACT - SECT 5DA
  33. ↑ De Facto Relationship Act details
  34. ↑ Anti-Discrimination Act full text
  35. ↑ Australia's anti-discrimination laws: NT
  36. ↑ NT.gov.au Sex reassignment surgery Archived 9 November 2013 at the Wayback Machine.
  37. ↑ Australian Human Rights Commission
  38. 1 2 Androgen Insensitivity Support Syndrome Support Group Australia; Intersex Trust Aotearoa New Zealand; Organisation Intersex International Australia; Black, Eve; Bond, Kylie; Briffa, Tony; Carpenter, Morgan; Cody, Candice; David, Alex; Driver, Betsy; Hannaford, Carolyn; Harlow, Eileen; Hart, Bonnie; Hart, Phoebe; Leckey, Delia; Lum, Steph; Mitchell, Mani Bruce; Nyhuis, Elise; O'Callaghan, Bronwyn; Perrin, Sandra; Smith, Cody; Williams, Trace; Yang, Imogen; Yovanovic, Georgie (March 2017), Darlington Statement, archived from the original on 2017-03-21, retrieved March 21, 2017
  39. ↑ Copland, Simon (March 20, 2017). "Intersex people have called for action. It's time to listen". Special Broadcasting Service. Retrieved 2017-03-21.
  40. ↑ Jones, Jess (March 10, 2017). "Intersex activists in Australia and New Zealand publish statement of priorities". Star Observer. Retrieved 2017-03-21.
  41. ↑ Power, Shannon (March 13, 2017). "Intersex advocates pull no punches in historic statement". Gay Star News. Retrieved 2017-03-21.
  42. ↑ Sainty, Lane (March 13, 2017). "These Groups Want Unnecessary Surgery On Intersex Infants To Be Made A Crime". BuzzFeed Australia. Retrieved 2017-03-21.
  43. ↑ Hirst, Jordan (March 13, 2017). "Human Rights Commission Launches Major Intersex Consultation". QNews Magazine. Retrieved 2017-03-21.
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