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Report of the Western Australian Ministerial Committee on Lesbian and Gay Law Reform

Authors: Mala Dharmananda
Christopher N Kendall BA (Hons), LLB, LLM, PhD
Associate Professor, Murdoch University School of Law
Subjects: Homosexuality law and legislation - Western Australia (Other articles)
Sex and law -- Western Australia
Sex discrimination -- Law and legislation -- Western Australia
Issue: Volume 8, Number 4 (December 2001)
Category: Current Developments
Contents:

Report of the Western Australian Ministerial Committee on Lesbian and Gay Law Reform

    Introduction

  1. Western Australia remains the only Australian jurisdiction without equal opportunity protections for lesbians, gay men and bisexual people. It also hosts the only age of consent for consensual gay male sexual activity to be set at 21(it is 16 for heterosexuals in WA), as well as a plethora of other discriminatory laws that either directly or indirectly impact negatively on lesbians, gay men, bisexuals and their relationships. This has consequently assured WA its pariah status in the burgeoning area of human rights protections for those who suffer discrimination as a result of their sexual orientation. Thankfully, with the recent election of a new Labour government in the state, WA's reputation as "out of touch" with the needs of all its citizens looks set to change.

  2. In March 2001, the Attorney General of Western Australia, Jim McGinty, convened a Ministerial Committee to assist in the development of legislative amendments to end the discrimination encountered by lesbians and gay men in Western Australia in a wide range of areas. The committee comprised lesbian and gay legal academics, lawyers, community rights activists, politicians, social workers and others familiar with the nature and impact of discrimination, harassment and vilification in the lives of lesbians, gay men and bisexual persons.[1]

  3. The terms of reference of the Committee were to examine what State legislation and other measures were required to prevent discrimination on the ground of sexual orientation against lesbian, gay and bisexual people in Western Australia including consideration of the following issues:

  4. In deliberating upon its Term of Reference the Ministerial Committee also considered the nature and extent to which:

  5. The Committee limited its report to discrimination based on "sexual orientation", defined as sexual identity of lesbians, gay men and bisexuals. Discrimination on the basis of gender identity or against those persons who are transgendered is the subject of a working party, that was convened by the Western Australian Equal Opportunity Commissioner and it is expected that the Commissioner will send her report to the Attorney General in December 2001.

  6. In its final report to the Government, the Committee made 47 recommendations, identifying those areas within its mandate which it believed warranted immediate legislative action. The Attorney General tabled the Report of the Ministerial Committee in Parliament on the 2nd of August 2001, stating that the Government accepted all of the Committee's recommendations, except one. The Attorney General has indicated that the Government intends to introduce a Lesbian and Gay Law Reform Bill in late 2001.

  7. What follows is a brief overview of the Committee's recommendations and how they will alter Western Australian law as it pertains to lesbians, gay men and bisexuals. This overview does not provide a critical analysis of the recommendations. Rather, it aims only to highlight the Report's content. Readers are encouraged to obtain a full copy of the Report from the Equal Opportunity Commission and to provide any comments and suggestions to the Western Australian Attorney General directly.

    Equal Opportunity and Sexual Orientation

  8. It is lawful to discriminate against lesbians and gay men in Western Australia under the State Equal Opportunity Act 1984 on the basis of their sexual orientation. This means, for example, that lesbians and gay men can be denied training and promotion; service in a hotel, shop or garage; accommodation in the rental market or may be harassed simply because of their sexual orientation.

  9. Attitudes to a range of issues -- social, economic, political and historical -- have changed dramatically and rapidly in the past ten years. In some respects legislation including the Equal Opportunity Act 1984 (WA) has provoked these changes, but it has also responded to changing views and expectations. Amendments to laws are vital to reflect changing social values, and to demonstrate the continuing commitment of governments to the philosophical principles that underpin anti-discrimination laws. In making these recommendations, the Ministerial Committee notes that these amendments simply give lesbians and gay men the same rights as other people in Western Australia. The Committee thus recommended the following:

    Recommendation 1

  10. That the Equal Opportunity Act 1984 (WA) be amended to include sexual orientation as a ground of unlawful discrimination.

    Recommendation 2

  11. That sexual orientation be defined to mean lesbianism, homosexuality and bisexuality in the Equal Opportunity Act 1984 (WA). The term "homosexual" in this context refers exclusively to males who are attracted to members of the same sex.

    Recommendation 3

  12. That discrimination based on "perceived sexual orientation" of the aggrieved person, and her or his associate or relative, irrespective of whether these perceptions are correct, be unlawful under the Equal Opportunity Act 1984 (WA).

    Recommendation 4

  13. That direct and indirect discrimination on the ground of sexual orientation be unlawful in keeping with the general schema of the Equal Opportunity Act 1984 (WA).

    Recommendation 5

  14. That discrimination on the ground of sexual orientation in employment be unlawful, including discrimination against applicants and employees, commission agents, contract workers, partnerships of six or more persons, by professional bodies or trade organisations, by qualifying bodies and employment agencies.

  15. In keeping with the general schema of Equal Opportunity Act 1984 (WA), employment exceptions to be provided in relation to:

    Recommendation 6

  16. That discrimination on the ground of sexual orientation in education be unlawful under the Equal Opportunity Act 1984 (WA).

    Recommendation 7

  17. That discrimination on the ground of sexual orientation in accommodation be unlawful under Equal Opportunity Act 1984 (WA).

  18. In keeping with the general schema of Equal Opportunity Act 1984 (WA), accommodation exceptions be provided in relation to:

  19. All state Equal Opportunity Acts contain some "exceptions" that permit behaviour that is otherwise prohibited under legislation. The justification for some exceptions contained in the WA State Act is that a person should be entitled to discriminate according to their personal views in the conduct of their private affairs. The Act thereby draws a distinction between the public and private spheres.

  20. The Committee accepted the retention of exceptions based on this demarcation. Thus, it would not be discriminatory for a person to discriminate in relation to domestic workers in private households, and in accommodation provided by a religious body to the extent that such discrimination is based on personal and religious beliefs.

  21. The Committee noted, however, that with the passage of time some exceptions appear to perpetuate discrimination. It concluded, however, that until such time as these exceptions were removed for all grounds of discrimination, and to the extent that these exceptions presently relate to the State Act and to each ground of unlawful discrimination, such exceptions must also relate to discrimination on the basis of sexual orientation. This means that behaviour that is currently permitted in the State Act in relation to sex or race discrimination will also be permitted in relation to sexual orientation, at least until exceptions generally are not permitted under the Act.

    Recommendation 8

  22. That discrimination on the ground of sexual orientation in the provision of goods, services and facilities be unlawful under the Equal Opportunity Act 1984 (WA).

    Recommendation 9

  23. That discrimination on the ground of sexual orientation be unlawful in the areas of access to places and vehicles; clubs; application forms; insurance; and superannuation under the Equal Opportunity Act 1984 (WA).

  24. In keeping with the general schema of Equal Opportunity Act 1984 (WA), an exception to be provided in relation to clubs offering membership to people of a particular sexual orientation.

    Recommendation 10

  25. That the current general exceptions contained in the Equal Opportunity Act 1984 (WA) apply to discrimination on the ground of sexual orientation, namely:

    Recommendation 11

  26. That there be an exception for acts intended to meet the special needs of persons of a particular sexual orientation in relation to employment, education, training or welfare.

    Recommendation 12

  27. That the definition of "de facto spouse" in section 4 of the Equal Opportunity Act 1984 (WA) be amended to include same sex relationships.

    Recommendation 13

  28. That section 29 of the Equal Opportunity Act 1984 (WA) be amended to include same sex couples.

  29. The Equal Opportunity Act defines the term "de facto" as meaning persons of the opposite sex who live together on a bona fide domestic basis. The definition does not cover people in same sex relationships. This omission frequently leads to discrimination against same sex de facto couples. For instance, a lessor can deny a same sex couple access to housing on the basis of their sexual orientation and the fact they are cohabiting together. The definition of de facto spouse contained in section 4 of the Act states that de facto couples must be persons of the opposite sex. The Committee concluded that eliminating discrimination against same sex de facto couples warrants an amendment to the definition of "de facto spouse" in section 4 of the Act.

  30. In addition, section 29 of the Equal Opportunity Act entitled "Employment of married couple" provides:

    Nothing in Division 2 or 3 renders unlawful discrimination against a person on the ground of the person's marital status in relation to a job which is one of 2 to be held by a married couple.

  31. "Marital status" means the status or condition of being the de facto spouse of another person. Section 29 may thus preclude same sex de facto couples from certain areas of employment. The Committee concluded, therefore that it be amended to include same-sex couples.

    Recommendation 14

  32. That the definition of "services" in section 4 of the Equal Opportunity Act 1984 (WA) be amended consistent with the approach adopted in NSW to clearly state that duties carried out by State and local government officials or instrumentalities for the public is conduct covered the Equal Opportunity Act 1984 (WA) unless expressly stated otherwise.

    Recommendation 15

  33. That the Commissioner for Equal Opportunity is adequately resourced to undertake community education initiatives to inform the wider community that discrimination in the ground of sexual orientation is unlawful. Initiatives would include publications, workshops and training sessions.

    Recommendation 16

  34. That a position of Gay and Lesbian Liaison Officer be created at the Equal Opportunity Commission. This officer would be responsible for handling inquiries about discrimination on the basis of sexual orientation and the coordination of educative initiatives.

  35. This recommendation has not yet been accepted by the government but has been tabled pending further budgetary review. The government has, however, accepted the recommendation in principle.

    Homosexual Vilification

  36. Violence against lesbians and gay men is often random and brutal, and is frequently accompanied by verbal abuse. Such verbal and physical violence is considered to be anti-gay or anti-lesbian when its victims are chosen because of their sexual orientation.

  37. Anti-vilification provisions provide a means of redress against vilifying speech and/or actions, and thereby signal a refusal to tolerate or condone the public denigration of lesbians and gay men. The Committee concluded that educative campaigns and programs will minimise the public verbal abuse of lesbians and gay men and reduce the detrimental effects of prejudice, creating an atmosphere where difference is, if not accepted and tolerated, then at least viewed as being less threatening.

    Recommendation 17

  38. That the Equal Opportunity Act 1984 (WA) be amended to make the vilification of gays, lesbians and bisexuals, of persons regarded as such, and of persons infected with HIV/AIDS or presumed to be so unlawful, consistent with the approach adopted in NSW in the Anti-Discrimination Act 1977.

    Recommendation 18

  39. That the anti-vilification provisions inserted in the Equal Opportunity Act 1984 (WA) include exemptions similar to those adopted in the NSW Anti-Discrimination Act 1977 allowing fair reporting, privileged communications and public acts done reasonably and in good faith for purposes in the public interest.

    Recommendation 19

  40. That the Commissioner for Equal Opportunity coordinate a community education anti-vilification strategy developed in consultation with representatives of relevant Government and non-government agencies. The strategy should be specifically focused on the unacceptable nature of homophobic verbal and physical violence.

    Recommendation 20

  41. That the Attorney General request the Minister for Police to direct the WA Police Gay and Lesbian Liaison Officer to collect statistics and anecdotal evidence of violent crimes against gays, lesbians and bisexuals. Records of reported and unreported crimes, the seriousness of the reported and unreported crimes and the number of convictions would enable an accurate assessment of the vilification of lesbians and gay men in Western Australia.

    Recommendation 21

  42. That the Attorney General review the data collected pursuant to Recommendation 20 within 2 years to determine whether amendments to the Criminal Code (WA) are necessary to tackle the vilification of lesbians and gay men with criminal sanctions.

    Terminating Employment

  43. The Industrial Relations Act 1979 in Western Australia is now 22 years old. Since its inception there have been significant shifts in community perceptions, attitudes, expectations of work and the workplace, as attested by the enactment during this period of anti-discrimination, enterprise bargaining and workplace relations laws at the Commonwealth and State levels.

  44. The Ministerial Committee acknowledged that proposals to amend the State Industrial Relations Act to reflect equal opportunity principles as illustrated in the NSW Industrial Relations Act 1996 is beyond its Terms of Reference since this formalises rights not just for lesbians and gay men, but also for other people who are covered by the Equal Opportunity Act 1984 (WA).

  45. Accordingly the Ministerial Committee's recommendations were limited to the discrimination encountered by lesbians and gay men, while believing that the State Industrial Relations Act 1979 should be amended to formalise the relationship between it and the Equal Opportunity Act 1984 (WA).

    Recommendation 22

  46. That the Industrial Relations Act 1979 (WA) be amended by inserting a section directing the Commission to have regard to the objects of the Act insofar that the objects include the prevention and elimination in the workplace of discrimination on the basis of sexual orientation, particularly when exercising its functions in respect of unfair dismissal, awards and enterprise bargaining.

    Recommendation 23

  47. That the Industrial Relations Act 1979 (WA) be amended by inserting a section that permits the Commissioner for Equal Opportunity to intervene in any proceedings of the Industrial Relations Commission if the Commissioner establishes that the proceedings concern unlawful discrimination on the basis of sexual orientation under the Equal Opportunity Act 1984 (WA).

    Recommendation 24

  48. That the Attorney General consider amendments to the Industrial Relations Act 1979 (WA) consistent with the provisions of the NSW Industrial Relations Act 1996.

    Property Rights and Benefits

  49. At the State, Territory and Commonwealth levels there are many Acts that legally recognise various types of relationships, usually couples or defined family relationships. Many of these Acts make references to "spouse", some of which exclusively cover married couples and many others which specifically include both married and heterosexual de facto couples. These laws also recognise the rights and obligations of partners on the breakdown of a relationship, particularly in relation to property division. There are also laws regulating workers' compensation, bail, accident compensation, consumer and business related legislation and stamp duty to name but a few.

  50. In Western Australia, same sex couples are excluded from the rights, responsibilities and liabilities that arise from all of these laws.

  51. In some states and territories there are laws that cover both homosexual and heterosexual de facto couples who have lived together for a specified period. The Committee noted that it is currently proposed by the Western Australian Government that similar rights will be afforded to heterosexuals who live in de facto relationships. Despite this, there is no equivalent protection for the rights, entitlements and liabilities of people in same sex relationships in Western Australia. As a result of this omission, same sex couples experience discrimination in relation to matters such as the transfer of property, dependant spouse rebate, compensation schemes, health related legislation and inheritance or benefits upon intestacy - all rights and protections available to heterosexual couples. This legislative exclusion results in significant injustice, often at a time when compassion and equality is most needed.

  52. The Committee concluded that the differential treatment of same sex couples could be addressed by amending relevant laws to recognise lesbian and gay couples. The purpose of the proposed amendments is to recognise the rights and obligations of same sex couples where there is mutual commitment to a stable personal relationship and a shared life as a couple. This will not confer any "special" rights upon same sex couples. Rather, it will simply have the rights currently claimed by heterosexual couples, with attendant responsibilities, liabilities and obligations.

    Preferred definition of de facto

  53. Governments in Australia and the Standing Committee of Attorneys-General have considered the elements that constitute a de facto relationship, irrespective of the gender of the partners. The Committee acknowledged that this definition applies to heterosexual de facto couples as well as same sex couples, and accepted the preferred definition proposed by the State Government as delineated in the report of the Standing Committee of Attorneys-General:

    A de facto relationship is a marriage-like relationship (other than a legal marriage) between 2 adults.

  54. In deciding whether there is a de facto relationship between 2 adults, the following factors are indicators of whether or not the relationship exists but are not essential:

  55. It does not matter whether -

  56. Courts and administrative bodies determining whether a same sex de facto relationship existed would consider these factors. The Committee supported the inclusion of this definition into Western Australian law.

    Recommendation 25

  57. The Committee recommended that the following WA Acts be amended to ensure that same sex couples and their families are afforded the same rights and obligations as other de facto couples and their families:

    Recommendation 26

  58. The Committee recommended that the following WA Acts be amended to confer upon same sex couples their families and children, rights, obligations and protections consistent with those afforded heterosexual married couples:

    Recommendation 27

  59. Since the following WA regulations contain definitions that exclude or limit benefits available to same sex couples, the Committee recommended that identified provisions be amended to extend definitions to encompass same sex couples:

    Recommendation 28

  60. The Committee recommended that the Attorney General refer issues related to State Agreements to the Minister for State Development for consideration with a view to removing discrimination against same sex couples.

    Recommendation 29

  61. The Committee recommended that the Attorney General refer the Artificial Conception Act 1985 to the Minister for Health for review to remove discrimination against same sex couples.

    Recommendation 30

  62. The following Acts or certain sections discriminate against de facto couples, including same sex couples. The Committee recommended that these Acts be repealed either in their entirety or to the extent to which these Acts expressly or improperly discriminate as a matter of law or in their practical operations or effect.

    Reproductive Technology

  63. The most common reproductive technologies are in vitro fertilisation (IVF), artificial insemination - by partner or donor (AI or DI), embryo transfer and gamete intra-fallopian tube fertilisation. All women, including single women and lesbian couples, in Queensland, New South Wales, Tasmania and the Territories use reproductive technologies and have been doing so for many years since there are no legislative restrictions relating to the provision of fertility treatments in these States. Many clinics have adopted the guidelines provided by the National Health and Medical Research Council (NHMRC) and these are silent on the question of access by fertile single women and lesbians.

  64. The wording of the Preamble and the Directions to the Human Reproductive Technology Act 1991(WA) makes two things clear. The first is that the legislation is aimed at assisting couples, and the second is that these couples should be people who are medically infertile. DI or AI is used by women who are medically fertile, while IVF is the only viable option for infertile couples. Of significance is the Preamble to the Act, which states that:

    In enacting this legislation Parliament is seeking to give help and encouragement to those eligible couples who are unable to conceive children naturally or whose children may be affected by a genetic disease.

    Parliament considers that the primary purpose and only justification for the creation of a human egg in the process of fertilisation or embryo in vitro is to so assist these couples to have children, and this legislation should respect the life created by this process by giving an egg in the process of fertilisation or an embryo all reasonable opportunities for implanting.

  65. Other provisions of the Act make it clear that the Act applies only to heterosexual couples. In particular section 23 lists criteria by which access to reproductive technologies may be obtained, as follows:

    23. An in vitro fertilisation procedure may be carried out where

    (a) it would be likely to benefit -
    (i) persons who, as a couple, are infertile; or
    (ii) a couple whose child would otherwise be likely to be affected by a genetic abnormality or disease;

    (b) each of the participants required to do so has given an effective consent;

    (c) the persons seeking to be treated as members of a couple are -
    (i) married to each other; or
    (ii) are cohabiting in a heterosexual relationship as husband and wife and have done so for periods aggregating at least 5 years, during the immediately preceding 6 years;

    (d) the reason for infertility is not age or some other cause prescribed for the purpose of this paragraph; and

    (e) consideration has been given to the welfare and interests of
    (i) the participants; and
    (ii) any child likely to be born as a result of the procedure,
    (iii) and in the opinion of the licensee that consideration does not show any cause why the procedure should not be carried out,
    but not otherwise.

  66. Section 23 denies access to services to women who are not married or who have not been in a heterosexual relationship of at least five years duration. It also requires that women wishing to access either service be medically infertile, and requires the consent of a male or de facto partner before a procedure can be undertaken.

  67. Many lesbians who wish to access DI are not medically infertile, but are "socially infertile". To deny lesbians access to DI because they are not medically infertile essentially imposes an obligation on lesbian women to find a male partner for the purpose of procreation. This is unacceptable and discriminatory.

  68. The description of in vitro fertilisation procedure in section 3 provides that it is a "procedure in relation to artificially assisted human conception which is prescribed for the purposes of this definition". Based on this definition some commentators have concluded that DI is not limited in the same ways as IVF is proscribed by section 23 and that lesbians can access DI. Others have argued that the Act is ambiguous and that DI is meant only for heterosexual couples facing a fertility problem. The Preamble to the Act tends to favour this conclusion. This being the case, it is arguable that DI and IVF are similarly restricted to heterosexual couples deemed medically infertile.

  69. Section 4 stipulates the objects of the Act, and sub-clause (e) imposes an objective assessment of community standards that may be discriminatory against lesbians and single women:

    (e) to require that equity, welfare and general standards prevailing in the community are taken into account in the practice of reproductive technology;

  70. Section 6 makes it a criminal offence to undertake DI outside a clinical setting. This means that lesbians who access DI outside of a clinical setting are violating the law and can be prosecuted. Notwithstanding this provision, anecdotal evidence gathered by the Committee confirmed that lesbians who desired a child, and felt that they had no other option, had chosen this method, despite the significant health risks such an approach involves.

  71. Section 22(1) allows donors to specify conditions in respect of gametes, eggs or embryos. This allows sperm donors to place limits on the use of their sperm, and they may specify that lesbians, women of colour or any other class of women not use their sperm. In effect, it allows for the imposition of discriminatory limits on sperm use.

  72. There are numerous sections in the Directions and Regulations which are discriminatory in that references are made to "husband" and "de facto" in relation to consent generally, and consent to procedures to be undertaken. Reference is also made to "heterosexual couples", marriage and marital status requirements.

  73. The Committee concluded that the "heterosexual requirement" throughout the Act is both discriminatory and unjustified. The provisions of the Act that deny access to DI and IVF to lesbian women (whether fertile or infertile) clearly violate the Commonwealth Sex Discrimination Act 1984 as attested by the McBain[2]
    decision. Denying access to reproductive technologies on the basis of marital status or sexual orientation also contravenes international covenants such as the Convention on the Elimination of all forms of Discrimination Against Women ratified by Australia in 1983.

  74. The WA Human Reproductive Technology Act's insistence on marriage and heterosexual de facto relationships ignores a range of viable alternative family arrangements that are increasingly accepted in a pluralistic society. The Act thus discriminates or risks discriminating against women who do not conform to the model of suitable candidates imposed by the legislation. The Act also risks criminalizing doctors who inseminate lesbian women, the women who participate in the insemination process, and it unequivocally criminalizes women who inseminate at home.

  75. The Committee acknowledged the complexity of issues related to the child's right to obtain information about his/her genetic inheritance, and the right of donors to place limitations on who may use their sperm. These issues affect heterosexual couples and children, and the Committee concluded that these matters should be debated in the wider community, but that sexual orientation is in no way relevant to this aspect of the debate.

    Recommendation 31

  76. That section 23 of the Reproductive Technology Act 1991 (WA) be amended to enable lesbian couples access to IVF where one woman in the relationship is medically infertile.

    Recommendation 32

  77. That section 23 of the Reproductive Technology Act 1991 (WA) be amended to enable lesbian couples who may be considered "socially infertile" to access AI.

    Recommendation 33

  78. That the objects and preamble of the Reproductive Technology Act 1991 (WA) be amended to recognise that reproductive services are not limited to married or de facto heterosexual couples, and is inclusive of lesbian couples.

    Recommendation 34

  79. That the deletion of "marriage" or "heterosexual de facto" requirements, including consent from "husbands" in the directions and in sections 3, 4, 5, 6, 7, and 8 of the Reproductive Technology Act 1991 (WA).

    Recommendation 35

  80. That the Attorney-General refer issues relating to single women accessing reproductive technologies, genetic inheritance and limitations of the use of sperm by donors to the Law Reform Commission (WA) for further review, so as to ensure consistency with the Equal Opportunity Act 1984 (WA) and the practical application and operation of the Reproductive Technology Act 1991 (WA).

    Parenting and Children

  81. Children are reared in a number of diverse family formations. Some same sex couples raise children who are the offspring of one partner from a previous relationship. Single parents whose relationships have dissolved continue to love and raise their children. Married and de facto heterosexual couples, like same sex couples, either become or wish to become parents by adopting or fostering children.

  82. The Ministerial Committee noted that decisions of courts suggest that sexual orientation per se is not a criterion that affects the quality of parenting, and that a range of other criteria may be applied to ascertain what is actually in the best interests of the child. It suggests that public policy is lagging far behind a non-discriminatory regime of law and practice. The Ministerial Committee concluded that criteria such as emotional security and stability, criteria that are used to assess effectively the best interests of the child, should form the basis for decisions regarding adoption - not sexual orientation.

  83. Issues related to the adoption of children are governed by the Adoption Act 1994. In so far as this Act affects lesbians and gay men three separate issues are salient.

  84. First, under the Adoption Act 1994 same sex couples cannot jointly apply to be prospective adoptive partners, as couples have to be lawfully married or co-habiting in a heterosexual relationship for at least three years before they can adopt. This is commonly referred to as "stranger" adoption.

  85. Second, partners in same sex relationships cannot adopt the child(ren) of their partners from a previous marriage. In a heterosexual relationship the partner would be referred to as a step parent. Moreover, partners cannot adopt the child(ren) born to their same sex partners through either IVF or DI.

  86. Finally, a gay man or lesbian who is legally classified as the carer of a child may wish to adopt that child and have their same sex partner also legally recognized as that child's legal parents. The Act also poses problems in this regard.

  87. Relatively few children are available for adoption in Western Australia. In 1998/1999, for example, only six children were adopted in the "stranger" or non-related" parent category. This number increased only marginally to ten in 1999/2000. More step parent adoptions were granted during the same period to heterosexual couples, 30 and 35 respectively.

  88. Some heterosexual couples and individuals adopted children (20 in 1998/99 and 22 in 1999/2000) from overseas countries through agreements between the State and those countries.

  89. The Ministerial Committee noted that the Adoption Act was reviewed in 1997, and that its recommendations are currently being considered. Its recommendations in relation to step parent adoptions are relevant since the Adoption Legislative Review Committee (hereinafter the Adoptions Applications Committee) recommended:

    ... that prior to commencement of adoption proceedings, a step parent applicant must first make application to the Family Court for a determination that an adoption order is preferable to a parenting/guardianship/custody order.

  90. In making this recommendation, the Adoptions Applications Committee stated that it was concerned with the consequences of step parent adoptions that relate to the effects on the child of severing pre-existing family relationships. The primary concern being that such adoption creates a set of legal relationships that are contrary to the actual relationships among the families involved. Parenting orders mean that existing custody, guardianship and access rights will not be negated or cease. The Adoptions Applications Committee's observations and recommendations relate only to heterosexual couples and the processes by which heterosexual step parent adoption applications may be made.

  91. In South Australia, Victoria, ACT, Queensland and Tasmania these concerns resulted in legislative amendments whereby applications for parenting orders are required, unless adoption can be shown to be more appropriate and in the best interests of the child.

  92. The Ministerial Committee concluded that this type of step parent adoption affects some lesbian and gay couples. The Committee recommended that any proposed amendments to the Act to ensure that a child's relationship with his or her existing family is not severed, should not discriminate on the basis of sexual orientation. A more pressing issue for lesbians and gay men occurs when partners in same sex relationships wish to adopt the children of their same sex partners who were conceived in some instances through anonymous donors and in other by known donors who assisted lesbian friends, but were not interested in child rearing or parenting. The Committee concluded that lesbians and gay men should not, in these circumstances be denied the right to adopt simply because they are lesbian or gay.

    Recommendation 36

  93. That the Adoption Act 1994 (WA) be amended to allow same sex couples to adopt children in accordance with criteria that assess the suitability of couples and individuals to be parents, irrespective of sexual orientation.

    Recommendation 37

  94. That any proposed amendments to the Adoption Act 1994 (WA) do not discriminate on the basis of sexual orientation.

    Recommendation 38

  95. That policies, procedures and guidelines relating to adoption and foster care should be revised to ensure that these do not discriminate on the basis of sexual orientation.

    Human Dignity and Medical Treatment

  96. Dealing with the death of a partner, making decisions regarding funeral arrangements, consenting to organ donation, post mortems and autopsies are difficult decisions that are made frequently during a traumatic period by the partner of the deceased. Some of these decisions and duties are regulated by legislation, that presently exclude same sex couples.

    Recommendation 39

  97. That the following WA laws and regulations be amended to recognise the rights of same sex partners in relation to medical treatment, inheritance and death:

    The Private Sphere

  98. The Criminal Code (WA) distinguishes between the consensual sexual activity of gays and heterosexuals. Presently, the age of consent for consensual sexual activity is 16 for heterosexuals and 21 for gay men. This is, by definition, discriminatory.

  99. The Committee concluded that any distinction made in the age of consent between homosexual and heterosexual consensual sexual activity is prejudicial and unjust. In recommending that the Criminal Code (WA) be amended so that the age of consent for homosexual and heterosexual sexual activity be 16, the Ministerial Committee recognised and affirmed existing provisions that protect all adolescents, heterosexual and homosexual, from harm. Importantly the Ministerial Committee also sought to limit the protection available under a mistaken belief. Finally, the Committee concluded that those criminal law provisions that presently make it a criminal offence to "promote" homosexuality should be repealed.

  100. Some sections of the Criminal Code Act Compilation Act 1913 of Western Australia draw a distinction between the consensual sexual activities of lesbians and gay men with those of heterosexuals. These sections are as follows.

    Juvenile male: Offences against

    332A (1) In this section "juvenile male" means a male person of or over the age of 1 and under the age of 21 years.

    (2) A male person who sexually penetrates a juvenile male or who procures or permits a juvenile male to sexually penetrate him is guilty of a crime and is liable to imprisonment for 5 years.

    Summary conviction penalty: Imprisonment for 2 years or a fine of $8000.

    (3) A male person who indecently deals with a juvenile male or who procures a juvenile male to indecently deal with him or another male or who permits a juvenile male to indecently deal with him is guilty of a crime and is liable to imprisonment for 4 years.

    Summary conviction penalty: Imprisonment for 2 years or a fine of $8000.

    (4) It is a defence under this section to prove the accused person believed on reasonable grounds that the juvenile was of or over the age of 21 years.

  101. Repeal of this provision will result in the age of consent being the same for homosexual and heterosexual sexual activity.

    Indecent practices between males in public

    184. Any male person who in public commits any acts of gross indecency with another male person or procures another male person to commit in public any act of gross indecency with him, or attempts to procure the commission of any such act by any male person with himself or with another male person in public is guilty of a crime and is liable to imprisonment for 3 years.

    Summary conviction penalty: Imprisonment for one year or a fine of $4 000.

  102. Section 184 proscribes 'indecent practices between males in public' and could be interpreted to include sodomy. The Committee concluded that there is no need for this provision since section 203 of the Criminal Code (WA) adequately covers the same activities in a non-discriminatory manner. Section 184 is narrower than section 203 as it covers only males and requires the indecency to be gross. The punishments under both sections are the same, although there is no indication that the phrase 'public place' under section 184 will be interpreted any differently from the more elaborate definition contained in section 203(1). The Committee concluded that section 186 is discriminatory not because it prohibits indecent behaviour, but because it refers only to males.

    Occupier or owner allowing certain persons to be on premises for unlawful carnal knowledge

    186 (1) Any person who, being the owner or occupier of any premises, or having or acting or assisting in the management or control of any premises, induces or knowingly permits any person of such age as in this section is mentioned to resort to or be in or upon such premises for the purpose of being unlawfully carnally known by any man, whether a particular man or not is guilty of a crime, and:
    if the person is a girl under the age of 16 years or a male under the age of 21 years, is liable to imprisonment for two years; and
    if the person is under the age of 13 years, is liable to imprisonment for 20 years.

    (2) It is a defence to a charge to any of offences defined in this section prove that the accused person believed, on reasonable grounds, that in the case of a girl, that she was of or above the age of 16 years, and in the case of a male, that he was of or above the age of 21 years.

  103. Section 186 deals with the liability of an owner or occupier of premises allowing a juvenile on their property for the purpose of being 'unlawfully carnally known' by a man. It is only an offence if the juvenile is a female under the age of 16 years or a male under the age of 21 years. The Committee was of the view that 16 years of age should be used for males, and supported that protection otherwise offered by section 186.

  104. The proposed amendments to the Criminal Code (WA) will not affect those provisions that deal with incest, sexual conduct involving superiors or a person with an impairment, sexual conduct that amounts to professional misconduct, and the possession and use of child pornography. The Criminal Code (WA) currently prohibits and will continue to prohibit amongst other things:

  105. These provisions will continue to apply, thereby ensuring that children under 16 are protected from sexual exploitation.

  106. In some jurisdictions, for example the Australian Capital Territory and Tasmania the age differential between the parties is taken into account, either in determining whether there is any offence, or whether a defence of consent is available to the accused. The Western Australian Criminal Code (WA) currently provides in relation to some offences, for instance section 321A that deals with sexual relationships with a child under 16, that it is a defence to prove that the accused person believed on reasonable grounds that the child was of or over the age of 16 years.

  107. The Committee concluded that this defence should be limited to situations where, if the accused believed on reasonable grounds that the child was aged 16 years or older, then the accused is no more that 5 years older than the child; and where the child was under the age of 16 years, then the accused was not more than two years older than the child. A similar provision is included in the Victorian Crimes Act where the age of consent for both homosexual and heterosexual sexual activity is 16.

  108. The amendment proposed (outlined below in recommendation 44) by the Committee limits the defence of mistaken belief on reasonable grounds currently available in the Criminal Code (WA) by stipulating that the accused must be within an age range. This deals with predatory sexual behaviour in relation to both male and female adolescents, and recognises that the relationship in which sexual activity occurs, irrespective of gender, should be one where the younger party is not at risk of being coerced and that consent is voluntarily given.

  109. The Ministerial Committee supported the fact that a defence of mistaken belief is not available in relation to sexual offences against a child by a relative and against persons who are mentally impaired. Moreover, the Committee endorsed the fact a defence of mistaken belief is only available to persons standing in "a position of trust" as articulated in section 322 if the child is or over 18 years of age.

  110. The Committee concluded that retention of the Preamble to the Law Reform (Decriminalisation of Sodomy) Act 1989 (WA) could not be justified. In 1989, the WA Parliament proclaimed the Decriminalisation Sodomy Act. In effect, this Act decriminalised sodomy (setting the age of consent for gay male consensual sexual activity at 21), but simultaneously declared Parliament's disapproval of homosexual behaviour in its Preamble. Specifically, the Preamble of the Act reads:

    WHEREAS, the Parliament does not believe that sexual acts between consenting adults in private ought to be regulated by the criminal law:
    AND WHEREAS, the Parliament disapproves of sexual relations between persons of the same sex;
    AND WHEREAS, the Parliament disapproves of the promotion or encouragement of homosexual behaviour;
    AND WHEREAS, the Parliament does not by its action in removing any penalty for sexual acts in private between persons of the same sex wish to create a change in community attitude to homosexual behaviour;
    AND WHEREAS, in particular the Parliament disapproves of persons with care supervision or authority over young persons urging them to adopt homosexuality as a lifestyle and disapproves of instrumentalities of the state so doing:
    Be it therefore enacted...

  111. Sections 23 and 24 under Part 2 of the same Act make it a criminal offence to promote homosexual behaviour. Section 23, entitled 'Proselytising Unlawful' reads:

    It shall be contrary to public policy to encourage or promote homosexual behaviour and the encouragement or promotion of homosexual behaviour shall not be capable of being a public purpose.

  112. Section 24 deals with educational institutions and states that it shall be "unlawful to promote or encourage homosexual behaviour as part of the teaching in any primary or secondary educational institution."

  113. The Committee noted that in addition to the condemnatory and discriminatory nature of the Preamble itself, in the context of these sections, educative strategies that seek to reduce the level of youth suicide and reduce the level of HIV/AIDS transmission may be problematic. It has been suggested, for example, that safe sex and education campaigns may be impeded by section 23. To the extent that the terms 'promoting' and 'encouraging' homosexual behaviour are ambiguous and unclear, these could arguably apply to beneficial activities such as publishing or broadcasting HIV/AIDS material in schools, and appear to do little more than add to the isolation and exclusion of young lesbians and gay men, while discouraging those best suited to alleviate this pain from doing anything about it.

    Recommendation 40

  114. That section 184 of the Criminal Code (WA) be repealed.

    Recommendation 41

  115. That section 186(1)(a) of the Criminal Code (WA) be amended as follows: "If the person is a child under the age of 16 years".

    Recommendation 42

  116. That section 322A of the Criminal Code (WA) be repealed.

    Recommendation 43

  117. That the Law Reform (Decriminalisation of Sodomy) Act 1989 (WA) be repealed.

    Recommendation 44

  118. That sections 186(2) and 321A(7) of the Criminal Code (WA) be deleted, and replaced with the following provision:

    Indecent act with child under the age of 16

    A person must not wilfully commit, or wilfully be in any way a party to the commission of, an indecent act with or in the presence of a child under the age of 16 to whom he or she is not married.

    Consent is not a defence to a charge under sub-section (1) unless at the time of the alleged offence -
    The accused believed on reasonable grounds that the child was aged 16 or older and the accused was no more than 5 years older than the child;
    Or
    The accused was not more than 2 years older than the child;
    Or
    The accused believed on reasonable grounds that he or she was married to the child.

    Homosexual Advance Defence

  119. The law presently accepts that an ordinary person could be sufficiently provoked to commit an act of extreme violence against a gay man, lesbian or bisexual as a result of a non-violent sexual advance by that person. The Committee concluded that this reasoning does not accord with contemporary community standards and cannot be justified as a valid defence in law.

    Recommendation 45

  120. That section 245 of the Criminal Code (WA) be amended to expressly exclude the defence of provocation being available (either for assault or murder) as a result of a non-violent homosexual advance.

    Recommendation 46

  121. That the Attorney General refer matters related to directions given to juries involving gays, lesbians and bisexuals, whether as victims/complainants or the accused, to the Law Reform Commission (WA) for review with a view to such directions being formalised whereby directions should be to the effect that there should be no prejudice against the deceased or alleged victim on the basis of sexual orientation.

    Recommendation 47

  122. That the Attorney General consult with the Chief Justice of the Supreme Court, the Chief Judge of the District Court and the Chief Stipendiary Magistrate of Western Australia on the provision of judicial education for issues relating to gays, lesbians and bisexuals.

  123. Recommendation 45 was not accepted by the Government on the basis that:

      The negative stigma associated with homosexuality will be diminished by implementation of these recommendations including:

    • Repeal of the Law Reform (Decriminalisation of Sodomy) Act;

    • Equalising the ages of consent for homosexual and heterosexual sexual activity; and

    • The addition of sexual orientation as a ground of unlawful discrimination under the Equal Opportunity Act

  124. Recommendation 47 is to be referred to the Chief Justice of the Supreme Court of Western Australia for further comment.

    Conclusion

  125. It is possible that further public debate (in a state where opinion about gay and lesbian law reform remains polarised) will affect the scope of the Committee's recommendations. Already, the Leader of the Opposition Liberal party in Western Australia has indicated that he will not accept equal ages of consent for consensual sexual activity. Nor will he support same-sex adoption or access to reproductive technology services for lesbian women.

  126. It is hoped that in considering any changes, the Government will not support or give voice to the types of systemic biases and inequalities that made this Report necessary in the first place. While there is always room for improvement, at its core the Report of Western Australian Ministerial Committee on Lesbian and Gay Law Reform seeks only to offer the most basic of human rights protections for all persons who face discrimination on the basis of sexual orientation. This is an initiative that is long overdue. It offers a building block for future rights agendas and is one that should not be diminished by discriminatory and unfounded stereotypes and prejudices.

Notes

[1] The members of the Committee were Ms Margaret Quirk MLA (Chairperson), Ms Merilee Garnett (representing the Attorney General), Ms Mala Dharmananda (Secretary), Mr Graham Brown, Dr Vivienne Cass, Ms Maxine Drake, Ms Heather Ellis, Mr Christopher Kendall, Mr Dennis Madden, Mr Damian Meyer, Ms Louise Pratt MLC, Mr Robert Smith, Mr Shaun Temby, Ms Midge Turnbull, Ms Giz Watson MLC.

[2] McBain v State of Victoria & Ors (2000) EOC 93-10

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