Recognition of Lesbian and Gay Families in Australian Law — Part One: Couples∞
| Date | 01 March 2006 |
| DOI | 10.22145/FLR.34.1.1 |
| Published date | 01 March 2006 |
| Author | Jenni Millbank |
| Subject Matter | Article |
RECOGNITION OF LESBIAN AND GAY FAMILIES IN
AUSTRALIAN LAW — PART ONE: COUPLES∞
Jenni Millbank*
I INTRODUCTION ......................................................................................................2
II ISN'T SAME-SEX MARRIAGE BANNED?...........................................................4
III STATE AND TERRITORY LEGISLATIVE ACTION .........................................9
A NSW .....................................................................................................................9
B Victoria...............................................................................................................14
C Queensland ......................................................................................................18
D Western Australia.............................................................................................20
E Northern Territory ...........................................................................................24
F Tasmania............................................................................................................26
G ACT ....................................................................................................................29
H South Australia.................................................................................................32
IV REMAINING AREAS OF INEQUALITY ............................................................35
A Superannuation ................................................................................................35
B As taxpayers in sickness and in health..........................................................37
C Family Court .....................................................................................................39
D Immigration ......................................................................................................40
V CONCLUSION: TRENDS AND LESSONS ........................................................41
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∞ This article on same-sex couples, and the one to follow on parents, is dedicated to the
memory of Danny Sandor. Danny was widely known and loved in family law circles and
will long be remembered as an indefatigable human rights advocate, particularly in the
area of children’s rights. I want to note here his incredible contribution to the development
of gay and lesbian relationship rights in Australia. Danny was directly involved in the
Victorian partnership reforms but was also indirectly involved in almost everything that
has happened in same-sex family law reform for the past decade, as he helped to generate,
cross-pollinate and popularise many of the key ideas behind the reforms. Danny’s
particular genius was to know everyone, hear everything, and conclude virtually every
conversation with a new acquaintance by linking them together with one of his friends or
colleagues for a new project.
* Associate Professor of Law, University of Sydney. Thanks to Reg Graycar for her
comments on an earlier draft and Mel Gangemi for her invaluable research assistance. The
information in this paper is up to date as at 3 April 2006.
2 Federal Law Review Volume 34
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I INTRODUCTION
A wide range of state and federal laws recognise and regulate intimate and familial
relationships. Such laws include inheritance, immigration, guardianship and
superannuation as well as the areas that we traditionally think of as 'family law':
property division and disputes over children following relationship breakdown.1
There is no reliable demographic data on how many adults identify as lesbian or
gay in Australia, but there is information to indicate that many lesbians and gay men
live in long-term relationships, some of which include children. The Australian census
has never asked individuals to identify their sexuality, but in 1996 and 2001 invited
people to record if they are living in a same-sex relationship. These figures
underestimate the numbers of couples for a variety of reasons: in 1996 the question
itself was confusingly worded, and many people were unaware that they were able to
record their relationship for the first time. The census does not record couples who do
not cohabit. In addition, there are still many same-sex couples who would not feel
comfortable recording their relationship on an official document such as a census. An
increasing willingness to be open, combined with a more clearly worded question as to
relationship status, may explain the fact that the number of same-sex couples recording
their relationship in the census doubled from 1996 to 2001.2
In a 2001 survey of 670 lesbians, gay men and transgender people in Victoria, 27 per
cent of respondents were not currently in a serious relationship, 14 per cent were in a
relationship with a partner they did not live with and 59 per cent were living with their
partner. Women were more likely than men to live with their partner (85 per cent of
women in a serious relationship cohabited, compared to 73 per cent of men in a serious
relationship).3
Lesbians and gay men may have children born into previous heterosexual
relationships. Women are also increasingly having children within lesbian
relationships, through the use of assisted reproduction. A smaller number of lesbians
and gay men may have children through adoption or fostering. Of the same-sex
couples who recorded their relationship in the 2001 census, 5 per cent of gay male
couples were living with children, while 19 per cent of lesbian couples were living with
children.4
Prior to 1999, same-sex couples were recognised in only two areas of New South
Wales ('NSW') law concerning the rights of victims of crime (from 1996),5 and three
areas of Australian Capital Territory ('ACT') law concerning property division on
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1 See Reg Graycar, 'Law Reform by Froz en Chook: Family Law Reform for the New
Millennium?' (2000) 24 Melbourne University Law Review 737.
2 From 10 000 to 20 000 couples: Australian Bureau of Statistics, Year Book Australia: Feature
Article: Same-Sex Couple Families (2005).
3 Victorian Gay and Lesbian Rights Lobby, Everyday Experiments: Report of a Survey into Same-
Sex Domestic Relationships in Victoria (2001).
4 Australian Bureau of Statistics, above n 2.
5 Victims Support and Rehabilitation Act 1996 (NSW); Victims Rights Act 1996 (NSW). At that
time one other anomalous regulation required disclosure of a same-sex partner's interest:
Protection of the Environment Administration (Disclosure by Board Members) Regulation 1992
(NSW).
2006 Lesbian and Gay Families in Australian Law 3
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relationship breakdown (1994) and inheritance (1996).6 In 1998 the exclusion of same-
sex couples from all but a tiny handful of such laws led to the conclusion that, '[a]s
members of families of choice in which we form partnerships and raise children, we
are almost universally ignored'.7 There has been an enormous shift in Australian law
since that time. Commencing with NSW in 1999, every state and territory except South
Australia has undertaken legislative reform affording wide-ranging recognition to gay
and lesbian partnerships within their jurisdiction. South Australia has had a Bill before
Parliament since 2004 to the same effect, which is likely to be reintroduced in 2006.8
These reforms place same-sex partnerships on an equal footing with heterosexual de
facto couples in literally hundreds of Acts concerning almost every area of law;
although federal law is the notable exception to this trend.
As part of these reforms, Western Australia, the Northern Territory and the ACT
also passed laws recognising the relationship of the non-biological mother with her
child or children in lesbian-led families; and Western Australia, the ACT and Tasmania
provided for the possibility of other parenting avenues for lesbians and gay men such
as adoption.
To date very little has been written about these changes and there is no source of
information on how these many and varied reforms compare with one another, or
indeed how they combine to form a matrix of recognition around Australia. This article
will examine recognition of same-sex couples undertaken in recent years by outlining
the sequence of reforms in each jurisdiction and their key features, including how the
categories of relationship have been defined and the processes by which change has
occurred. It will then examine those areas of law where inequality remains,
particularly legislation at the federal level that continues to exclude same-sex couples.
As this article is focused on relationship and family recognition measures, other
important legal developments in a number of Australian jurisdictions during recent
years, such as equalisation of discriminatory age of consent provisions, reforms to anti-
discrimination laws (including anti-vilification measures), and transgender
recognition, will not be addressed.
While this first article focuses on the recognition of couple relationships, a second
article to be published in the August issue of this journal will examine issues
surrounding parenting for lesbian and gay families. This later piece on children will
cover both access to parenting avenues for lesbians and gay men, and also the issue of
parental status of children born into non-traditional families. Thus, it will include a
discussion of the laws around adoption and surrogacy in Australia, as well as access to
fertility services. It will also discuss options for the recognition of non-biological
mothers in lesbian families and the legal status of known donors in such families. The
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6 Domestic Relationships Act 1994 (ACT); Family Provision (Amendment) Act 1996 (ACT);
Administration and Probate (Amendment) Act 1991 (ACT). See Jenni Millbank, 'If Australian
Law Opened its Eyes to Lesbian and Gay Families, What Would it See?' (1998) 12 Australian
Journal of Family Law 99, 133; Reg Graycar and Jenni Millbank, 'The Bride Wore Pink … To
the Property (R elationships) Amendment Act 1999: Relationship Law Reform in New South
Wales' (2000) 17 Canadian Journal of Family Law 227.
7 Millbank, 'If Australian Law Opened its Eyes to Lesbian and Gay Families', above n 6, 102.
8 In 2004 and 2005 the South Australian Labor government struggled to pass legislation as it
did not control the Legislative Council (Upper House) of Parliament. The various forms of
the Bill are discussed below in Section III(h). Following the South Australia election in
March 2006, the Labor government now has control of both houses.
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