4 April 2003
Same-sex Partners Discussion Paper
Attorney-General’s Office
GPO Box 464
Adelaide, South Australia, 5000
Please accept the attached submission as a response to Removing Legislative Discrimination
against Same-sex Couples: Discussion Paper (2003).
Yours sincerely,
Dr Heather Brook
Lecturer
Women’s Studies
Associate Professor Margaret Davies
School of Law
Mary Heath
Lecturer
School of Law
Flinders University
Flinders University
Flinders University
Removing Legislative Discrimination against Same-Sex
Couples
1
Introduction
We applaud the South Australian Government’s commitment to eliminating discrimination
against same-sex couples. Accordingly, we are very pleased to have the opportunity to
respond to Removing Legislative Discrimination against Same-sex Couples: Discussion
Paper (2003).
For ease of reference, our submission employs the same numbering system as the discussion
paper to refer to areas of the law that to treat same-sex partners differently, from section 3
onwards.
We have chosen to use ‘same-sex relationship’ or ‘same-sex partnership’ to refer to
relationships between people of the same-sex, and ‘other-sex relationship’ or ‘other-sex
partnership’ to refer to relationships between people of different sexes. Our choice of
language reflects a commitment to describing people’s relationships accurately, while
recognising that they may identify themselves and their relationships in a range of different
ways. Thus, for example, people in other-sex relationships may identify as bisexual,
heterosexual or both, while people in same-sex relationships may identify as gay, lesbian,
homosexual and/or bisexual.
It is the general approach of this submission that there should be no distinction between
same-sex and other-sex relationships for legal purposes. We have not separately discussed
relationship law as far as it concerns women and men with transsexualism, who have
adopted a sex other than their birth sex. It is our view that under state law it should not
matter whether a relationship is categorised as same- or other-sex, and therefore it should not
matter whether a person in a relationship is classified as male or female. We support the
right of people with transsexualism to have their adopted sex legally recognised to the
greatest possible extent, including under the Commonwealth laws relating to marriage. That,
however, for obvious reasons, is not addressed by this submission.
2
Authorship of and Support for This Submission
This submission was drafted by:
Dr Heather Brook, Lecturer, Women’s Studies, Flinders University of South Australia
Associate Professor Margaret Davies, School of Law, Flinders University of South Australia
Mary Heath, Lecturer, School of Law, Flinders University of South Australia
The recommendations of this submission are supported by the
following:
Dr Debra King
Lecturer, Sociology
Flinders University
Professor Andrew Stewart
Professor of Law
Flinders University
Mr Peter G Gerhardy
Senior Lecturer, Commerce
Flinders University
Rebecca LaForgia
Lecturer, Law
Flinders University
Michele Slatter
Senior Lecturer in Law
Flinders University
Dr Christine Nicholls
Senior Lecturer, Australian Studies
Flinders University
Graham R Jones
Associate Lecturer, School of Commerce
Flinders University
Deb Truman
Flinders University
Ms Amanda Bettesworth
Administrative Assistant
Flinders University
Ms Judith Bannister
Lecturer in Law. School of Law
Flinders University
Charmaine Laatoe
Administrative Assistant, School of Law
Flinders University
Jenny Ayliffe
Practical Legal Training Officer
Flinders University
Deirdre Pearsall
Social Worker
Flinders University Union
Professor Susan Sheridan
Women’s Studies Department
Flinders University
Sandra Brooks
School of Law
Flinders University
Dr Ea Mulligan
Research Associate, School of Law
Flinders University
By fax (attached)
Dr Vicki Crowley
School of Communication, Information and
New Media
University of South Australia
Theresa Francis
Flinders University
Associate Professor Bet Roffey
School of Commerce
Flinders University
Mark J Rankin
Associate Lecturer in Law, School of Law
Flinders University
Jane Knowler
Lecturer, School of Law
Flinders University
(Attached)
Women Lawyers Committee of the Law
Society of SA
By email (attached)
Women Lawyers’ Association of SA Inc
Gregory Wright
School Administrator, School of Commerce
Flinders University
Associate Professor Kathy Mack
School of Law
Flinders University
Associate Professor Gary Davis
School of Law
Flinders University
By email (attached)
Dr Mark Israel
Reader in Law and Criminology
Flinders University
3.1
Property issues
Stamp duty exemptions
Exemptions on the stamp duty payable when certain property is transferred between
heterosexual domestic partners ought to be extended to same-sex partners. There is no
comprehensible basis for the current exclusion of same-sex partners from this tax benefit.
Retention of the exclusion will only contribute to the financial disadvantage already
experienced by same-sex couples under Federal income tax law.
Binding agreements about property
Many same-sex couples might wish to have the opportunity to make certificated agreements
about property distribution similar to those available under the De Facto Relationships Act
1996 . Agreements of varying levels of formality are commonly entered into by same-sex
couples, but having a legislative basis for such agreements would ensure their application by
the courts if necessary and maximise their effectiveness. The New South Wales Law Reform
Commission has summarised the potential advantages of ‘legally binding financial
agreements between parties in personal relationships’, as follows:1
They enable the parties to:
 plan their future financial affairs with some degree of certainty;
 avoid the costs, time, and emotional trauma of a court-imposed decision;
 keep their personal affairs private, rather than airing them publicly in open court
proceedings; and
 tailor the agreement to best suit their particular circumstances.
The Commission also points out that where parties to a relationship have formulated their
own agreements, which are appropriate to their own circumstances, they are more likely to
voluntarily and amicably accede to a property settlement. This will have the benefit of
reducing litigation.
The Commission indicates that unequal bargaining power can result in unfair domestic
agreements, and that these power imbalances are often linked to gender and its associated
roles (and are therefore more prevalent in heterosexual relationships). However, unequal
bargaining power is not only attributable to gender. We would therefore urge that any law
reform in South Australia is undertaken in such a way as to ensure that the effects of unequal
bargaining power are minimised.
Property Division on Separation
Similarly, same-sex partners should have the benefit of clear principles regulating property
division on the breakdown of a relationship. Partners in a same-sex relationship make
different types and levels of contribution to the property of the relationship, and it is only
appropriate that these be acknowledged by legal principle. The absence of such principles
can be highly prejudicial to partners making a non-financial contribution in a relationship.
NSW Law Reform Commission Discussion Paper 44 (2002) – Review of the Property (Relationships)
Act 1984 (NSW), 4.20.
1
3.2
Death of a partner
Intestacy, wills, and administration
The intestacy rules which apply to other-sex relationships ought to be extended to same-sex
relationships. As same-sex partners are frequently unacknowledged or not fully accepted by
their partner’s families, it is extremely important to offer legal recognition at times of
extreme stress, especially where the partner has died or become incapacitated.
Family provision claims, Compensation and Superannuation
Benefits available under the law to other-sex partners of a deceased person should be made
available on an equal basis to same-sex partners. The economic disadvantage potentially
suffered by a bereaved same-sex partner is significant, especially so where she or he makes a
non-economic contribution to the relationship and is in a position of financial dependency.
There are no reasonable grounds for withholding such benefits from same-sex partners.
Objection to Cremation, Organ donation and consent to post-mortem
Wishes regarding non-cremation or organ donation are just as likely (or more likely) to have
been conveyed to an intimate partner as to a parent or adult child. It is disrespectful to these
relationships that they not be prioritised in this context. There is no reason why the husband
or wife of a deceased person should be included within the definition of ‘senior available
next of kin’ under the Transplantation and Anatomy Act 1983 where de facto partners and
same-sex partners are not. In our view, all relationships should be treated equally under
these laws.
3.3
Health and care issues
The current provisions of the Guardianship and Administration Act 1993 have considerable
practical and financial outcomes for people in same-sex relationships. Other-sex partners
have automatic rights of guardianship in the event of sudden or unexpected incapacity. They
need not consult or bear the financial cost of paying a lawyer to achieve these outcomes.
However, in order to achieve legally binding capacity to make decisions on behalf of an
incapacitated partner, or just to be informed of their partner’s rights or whereabouts, samesex partners must go to considerable effort. First, they must be aware of the need to formally
appoint one other as enduring guardians. Such awareness requires a much greater
knowledge of guardianship law than is expected of other members of society, and one which
it is not realistic to expect all same-sex partners to achieve. Further, they must attain this
knowledge and take legally binding action prior to one of them becoming incapacitated.
Unfortunately, the most likely trigger for awareness of the necessity for enduring power of
guardianship to be undertaken is a health crisis which incapacitates one partner. Such a
crisis may be completely unexpected. Finally, an enduring guardianship requires
consultation with a lawyer and attendant costs, which other-sex partners do not need to
undertake nor pay for to achieve similar outcomes. Same-sex partners may be reluctant to
seek legal advice because they fear discrimination. Some may not be able to afford legal
advice.
The necessity to demonstrate a proper interest before the Guardianship Board in the event
that a same-sex partner becomes incapacitated in the absence of prior arrangements of this
kind subjects the relationship to scrutiny rather than support at a time of intense crisis.
In addition to eliminating the discriminatory outcomes described above, we believe
recognition of same-sex relationships in health and care contexts would provide a clearer
context for medical and ancillary staff negotiating service delivery to patients by creating an
equivalent, and therefore clearer, legally sanctioned approach to all partner relationships.
Parity of legal recognition may be of particular significance where the patient’s family of
origin reject or do not support their same-sex partnership. In such circumstances, medical
staff should be in a position to focus on patient care, rather than being expected to negotiate
care questions in the shadow of laws which discriminate between patients based on their
sexuality, rather than their care needs and recognition of their primary relationships.
Accordingly, we support the recognition of same-sex relationships under the Guardianship
and Administration Act 1993, the Mental Health Act 1993 and the Supported Residential
Facilities Act 1992 and the Retirement Villages Act 1987.
We would also argue that health and care issues constitute a specific case in which same-sex
relationships should be recognised, whether those relationships involve cohabitation or not.
The discussion paper clearly contemplates a non-gendered definition of ‘relationship’,
‘spouse’ or ‘partner’ based on (duration of) cohabitation as the basis for removing
discrimination against same-sex relationships in South Australian law.
Given that same-sex partners are currently unable to marry under Australian law, the
employment of such a definition would leave no way for same-sex partners who are unable
or unwilling to cohabit to have their relationship legally recognised. In contrast, people in
other-sex relationships who are unable or unwilling to cohabit, for example, due to
employment in different places, may still marry and have the benefits and privileges which
attach to marriage, despite their non-cohabitation. We believe that both same- and other-sex
partners should be able to have non-cohabiting partner relationships recognised in the
context of health and care crises.
3.4
Children, parenting and family responsibilities
Adoption
The legal exclusion of same-sex couples from adopting children stems from outmoded
perceptions of ‘family’ and from prejudiced and unsupported views about the risks to
children parented by same-sex parents. Although we clearly would not in any way wish to
undermine the principle that the welfare of the child should be of paramount concern, we do
not believe that there are any adverse welfare outcomes to children parented by same-sex
couples. In particular, there is no evidence that children with same-sex parents have an
increased risk of mental illness, suffer from an absence of appropriate role models or are
more likely to adopt a non-heterosexual sexual orientation (the last of these is clearly not, in
our view, an undesirable outcome).2 There is also no evidence to suggest that children with
same-sex parents are stigmatised by their peers. Even if such evidence did exist, it would not
be a reason to exclude same-sex couples from the role of parenting. Children can be singled
See generally, Tami Dower ‘Redefining Family: Should Lesbians Have Access to Assisted
Reproduction?’ (2001) 25 Melbourne University Law Review 15. The literature on welfare outcomes for
children is reviewed in notes 24-61 and accompanying text.
2
out and bullied for a variety of reasons and it would be quite unreasonable to legislate to
exclude all parents whose children might suffer in this way from parenting roles. We feel
that where such problems exist, they ought to be dealt with by better education and
information to all children and their parents, not by discriminating against parents who fall
into a socially disadvantaged group.
Families take many different forms, and we object to the legal hierarchy of families which
privileges some forms of family (one form in particular) over others. There is no moral or
rational basis for this hierarchy, beyond the fact that the law has not kept pace with social
developments.
Formal legal recognition of parenthood should be available to the same-sex partner of a
woman who has undergone assisted reproduction. This could be achieved by the same
mechanism currently available to the non-biological father of a child conceived using
artificial insemination by donor.
A more difficult situation arises where a woman in a same-sex relationship gives birth to a
child where the donor is known, and the intention is that all parties involved should have a
continuing involvement in the care of the child. In such a case, the child may have a
relationship with the biological mother, her partner, a biological father, and possibly his
(male or female) partner. We believe that parenting roles in relation to a child should not be
legally confined to two people.
One possible way of recognizing the reality of such situations would be to make it possible
for all ‘parents’ involved to be listed on the birth certificate of a child, making subsequent
adoption procedures unnecessary. A declaration in a prescribed form outlining the
relationships between the parties could trigger the addition of more than two parents to the
birth certificate. Such a reform would place the non-birth mother in the same position as a
non-biological father whose partner gives birth to a child conceived with donor sperm. In
this case, however, the biological father of the child (and possibly his partner) would also be
listed on the birth certificate, giving recognition to the parties’ intentions at the time the child
was born. Any subsequent modifications to parenting arrangements could then be dealt with
under the Family Law Act 1975 (Cth).
Access to artificial fertilisation procedures
The comments which follow should not be interpreted to suggest that the signatories to this
submission are of one mind about whether artificial fertilisation procedures are, generally
speaking, a social good. This is a question about which there is much controversy. Artificial
fertilisation procedures can assist women and couples to reproduce in circumstances where
there would be little expectation of ‘natural’ conception. At the same time, most of the
artificial fertilisation procedures currently available (with the exception of artificial
insemination by donor) are highly invasive for women, do not have high success rates, carry
higher than normal risks during pregnancy, often produce unrealistic hopes and expectations
among would-be parents, and arguably reinforce the social view that a childless woman or
family is ‘incomplete’. Many of these matters were articulated by members of parliament
and others at the time of the original passage of the legislation, and they are still relevant
today.
However, the question is not whether artificial fertilisation is a good thing, but whether it
ought to be available on an equal basis to same-sex couples and single women. Presently,
under the Pearce decision, artificial fertilisation procedures are available to women in samesex relationships, but only where there is medical infertility. Even this level of access to
artificial fertilisation procedures is fragile, as it relies upon the current state of the Sex
Discrimination Act (Cth) 1984.
We strongly support changes to the Reproductive Technology Act 1988 which would ensure
that all women, regardless of sexual orientation or relationship status have access to artificial
fertilisation on the basis of social infertility.
The exclusion of women in same-sex relationships and single women is discriminatory and
does not acknowledge the reality of the many stable and happy family forms which do not
follow the conventional model. However, there are numerous other reasons for adopting
such a position.
The informal methods currently used by women who do not have a stable male partner are
unreliable, sometimes unsafe, and do not result in clear legal identification of the parents of
the child. These methods include engaging in casual sex, purchasing sperm over the internet,
and homespun artificial insemination with the assistance of a male friend (who, in the
absence of adoption rights for same-sex couples, may gain the legal status of father.) Legal
access to artificial fertilisation procedures minimises the risks of sexually transmitted disease
and transmission of genetic disorder. Reform of the Family Relationships Act 1975
provisions on deemed paternity could ensure that the consenting domestic partner of a
biological mother who has undergone artificial fertilisation is legally recognised as parent of
the child.
The limitation of access to artificial fertilisation procedures to those who suffer from medical
infertility will invariably discriminate against single women and women in same-sex
relationships and should be removed. Medical infertility may be evidenced by a sustained
period of unprotected heterosexual sex with no resulting pregnancy. This is a criterion which
most women in same-sex relationships and many single women would have no desire to
satisfy.
Although we do not profess any medical knowledge, access to simple artificial insemination
by anonymous donor may be sufficient for many women in same-sex relationships and
single women, without the need for recourse to more complicated and expensive procedures
of artificial fertilisation such as in vitro or GIFT. We also support the continued availability
of medical assistance where women are attempting artificial insemination by a known donor.
3.5
Domestic violence
The prevalence of domestic violence in same-sex relationships is the subject of considerable
debate. However, while assessments of prevalence vary, the existence of domestic violence
in same-sex relationships is unquestionable.3 In our opinion, the law should offer the same
protections to people subjected to violence, whether that violence takes place in same-sex
relationships or other-sex relationships. Further, those protections should be extended in a
way which recognises same-sex partnerships and families in a manner equivalent to the legal
recognition of other-sex partnerships and families.
Lee Vickers, ‘ The Second Closet: Domestic Violence in Lesbian and Gay Relationships: a Western
Australian Perspective’ (1996) 3 (4) E Law Murdoch University Electronic Journal of Law [17]-[22].
3
Restraining orders
We would support the extension of the definition of ‘spouse’ in the Domestic Violence Act
1994 to include a same-sex partner. We accept that same-sex partners are eligible for
protection under the restraining orders provisions of the Summary Procedure Act 1921.
However, the presumed intention of passing of the Domestic Violence Act 1994 was to
recognise the distinctive nature of domestic violence, as compared to violence between nonfamily members. While the remedies available under the Summary Procedure Act 1921 are
very similar, they do not explicitly refer to and recognise a family relationship between the
perpetrator and the complainant. We believe that same-sex families should be recognised by
being included within the definition of ‘family member’ provided in the Domestic Violence
Act 1994.
Assault against a family member
We welcome the inclusion of same-sex partners, together with married and unmarried othersex partners, in South Australia’s assault provisions, s 35 Criminal Law Consolidation Act
1935. This approach would bring penalties for domestic violence in same-sex relationships
into parity with those for domestic violence in other-sex relationships. At least as
importantly, it would ensure equivalence in sentencing of intra-familial perpetrators of
violence against children.
We would also support consideration of whether the ‘family member’ provisions of s35
should extend beyond a nuclear family model to include adult members of extended families
who live together.
Contextual issues
relationships
relating
to
domestic
violence
in
same-sex
The effectiveness of domestic violence legislation turns not only on the content of the
relevant legislation, but on the policy, policing and prosecution context in which that
legislation operates.
We are aware of some limited, but recent, anecdotal evidence of South Australian police
officers dealing sensitively and effectively with domestic violence between same-sex
partners or ex-partners. However, people in same-sex relationships form their perceptions of
the police from a range of sources which may or may not involve direct contact with the
police. Men in same-sex relationships, in particular, are well aware of the antagonistic
historical relationships between the queer communities and the police. People in same-sex
relationships have historically reported high levels of discrimination, harassment and
violence by the police.4
This history, and contemporary experiences which reinforce or resemble it, can make people
in same-sex relationships reluctant to report violence against them to the police. The Police
and You, the last major study of violence against lesbians and gay men in South Australia,
indicated that 44% of respondents surveyed who required police assistance did not contact
the police or delayed calling the police. Of those who decided not to make contact with the
police or delayed making contact, 79% ‘indicated that they had concerns about police
4
Gail Mason, ‘Violence Against Lesbians and Gay Men’ (1993) 2 Prevention Today 1.
attitudes to their sexuality.’5 90% of respondents who made the decision not contact the
police or delayed contact ‘were survivors of crimes where their sexuality was of central
concern’.6
Domestic violence presents a clear example of a context which, by its very nature, discloses
a same-sex relationship. It might therefore be expected that members of the gay, lesbian,
bisexual, transgender and transsexual (GLBTT) communities will have particular
reservations about reporting domestic violence to the police. Reporting rates for domestic
violence in all its forms fall well below documented rates of domestic violence. However,
fear of potentially homophobic police responses constitutes an additional impediment to
reporting domestic violence by people in same-sex relationships which other members of
society do not share. Legislative change alone is unlikely to have a major impact on these
concerns.
In the Police and You survey, 81% of lesbians and gay men surveyed who had experienced
domestic violence or hate crime said they would use a lesbian and gay contact officer within
the police if one were available. These figures were significantly different for other crimes
committed against gays and lesbians. This study did not specifically collect data on bisexual
or transsexual/transgender people’s experiences. The report concluded: ‘ that there is a high
correlation between those respondents who were victims of crime where their sexuality was
a central concern and the demand for Lesbian and Gay Contact Officers.’7
In spite of evidence from other Australian jurisdictions that the presence of Gay and Lesbian
Liaison Officers has a key role in reducing crime against people in the same-sex
relationships,8 our inquiries indicate that the South Australian police discontinued their fulltime Gay and Lesbian liaison officer position approximately three years ago. This position
has relatively recently been replaced by allocating a contact role to a sole contact officer
with considerable existing responsibilities in Aboriginal and multicultural liaison. While the
contact officer fulfils an important role in maintaining a point of contact for gay and lesbian
community issues to be raised, and taking pro-active steps to address issues of concern
which may arise between the South Australian Police and the gay and lesbian communities,
it is inevitably a restricted role.
The advertising of the position is limited: our inquiry to the central police switchboard was
met with the response that there was no lesbian and gay liaison position. The position is
described as a gay and lesbian community contact, which may mean that members of the
bisexual and transgender/transsexual communities are less inclined to make contact. There
5
Barbara Baird, Keith Mason and Ian Purcell, The Police and You: A report of a survey of the
experiences of lesbians and gay men with the South Australian Police conducted in 1993 by Lesbian and Gay
Community Action (1994), 30.
6
Barbara Baird, Keith Mason and Ian Purcell, The Police and You: A report of a survey of the
experiences of lesbians and gay men with the South Australian Police conducted in 1993 by Lesbian and Gay
Community Action (1994), 19. These figures reflect national studies of the same period, which suggest only
10% of lesbians and 48% of gay men report violent crimes agaist them to the police: Gail Mason, ‘Violence
Against Lesbians and Gay Men’ (1993) 2 Prevention Today 1.
7
Barbara Baird, Keith Mason and Ian Purcell, The Police and You: A report of a survey of the
experiences of lesbians and gay men with the South Australian Police conducted in 1993 by Lesbian and Gay
Community Action (1994), 28.
8
Jo Herlihy, ‘Reducing Violence, Crime and Fear of Crime in Gay and Lesbian Communities’ in Peter
Grabosky and Marianne James (eds), The Promise of Crime Prevention: Leading Crime Prevention Programs
(1995), 9; Paul Van Reyk, ‘Homophobia, Hate and Violence against Lesbians and Gays in NSW: an Overview
of Some Studies’ (Paper presented at the 8th International Symposium on International Victimology, Adelaide,
21-26 August 1994), 102.
is only one contact officer, of one gender, and some members of the GLBTT communities
may therefore feel uncomfortable contacting a person of the gender of the incumbent.
Perhaps most significantly, however, this position cannot and is not intended to form a first
point of contact for people reporting crimes against them. It is inaccessible to individuals
reporting domestic violence incidents to a local police station, where staff may not be aware
of the existence of a specialist contact point in any event.
We believe it would be appropriate to reinstate GLBTT liaison officers, and to
comprehensively publicise their existence and roles in order to assist in addressing the
documented reluctance of GLBTT to report violence against them to the police. In the
absence of specific provisions which make it clear that same-sex relationships violence will
be dealt with in a non-homophobic manner, it seems likely that many people in same-sex
relationships will decline to report domestic violence in those relationships when it occurs.
3.6 Protection from discrimination on the basis of relationship
status
We would support the extension of the Equal Opportunity Act 1984 to the status of
cohabiting with a same-sex partner. However, we believe it would be preferable to redraft
the current ‘marital status’ provisions, rather than simply including same-sex partnerships
within the definition of ‘marital status’. Casting same-sex partnerships as a form of ‘marital
status’, would effectively establish marriage as the benchmark against which all other forms
of relationship can be measured. Any legislative change based in such an approach would
risk underscoring the very forms of discrimination which it would be attempting to address.
We would suggest an alternative provision, which might refer to ‘relationship status’, rather
than ‘marital status’.
Given that same-sex partners do not currently have the option to marry, we would also
propose that consideration be given to the inclusion of same-sex partners who are living
apart (rather than cohabiting) within this provision. Without the capacity to marry, same-sex
partners who are living apart have no way of achieving legal recognition of their
relationships, nor of discrimination on the basis of those relationships, without specific
inclusion in legislation.
3.7 Other areas of the law
We believe that same-sex and other-sex couples should be treated in the same manner by
conflict of interest provisions, as partner/directors of two-person occupational and
professional companies, and under the exemptions from compulsion to give evidence against
a partner in the Evidence Act 1929 and the Police Complaints and Disciplinary Proceedings
Act 1985. We would argue that the public interest considerations which underlie conflict-ofinterest legislation and exemptions from the compulsion to give evidence apply to same-sex
partnerships no less than to partnerships between people of different sexes.
Finally, we would suggest that the recognition of same-sex relationships in the Acts which
form the key focus of this Discussion Paper should be followed by a review of the language
currently employed in significant South Australian Acts to ensure that it is consistent with
the approach selected by Parliament. Examples might include the Wrongs Act 1936 s3A,
which refers back to the Family Relationships Act 1975, and would therefore extend to
same-sex partners if the Family Relationships Act 1975 were amended appropriately, but
which currently uses expressions including ‘spouse’, ‘putative spouse’, ‘husband’ and
‘wife’.
South Australia is currently the only state or territory of Australia that has legislation
regulating access to health care for people with transsexualism and other intersex conditions.
In Victoria and other states and territories such a person may consult a competent General
Practitioner, rather than requiring the services of a practitioner who is authorised under the
Sexual Reassignment Act 1988. The restrictive requirements of the Sexual Reassignment Act
1988 currently limit access to suitable and affordable health care for transgender and
transsexual people. They also effectively eliminate choice of practitioner for people whose
health care needs may be perceived to fall within the purview of the Act. We recommend
that the Act be amended to reflect current practice in the rest of the country and that the
references to reassignment procedures made throughout the Act be altered to reflect
contemporary language, medical opinion and practise about the matters addressed.
4
Approaches to achieving legal equality for same-sex couples
What language should be used to refer inclusively to all couples,
whether opposite-sex or same-sex?
The question of how best to describe partners in various sorts of relationships is important.
Language, meaning and power are intimately related, and we applaud any efforts to
minimise exclusion and disadvantage resulting from inaccurate or inappropriate terminology.
Terms in use to describe relationships other than marriage include:




domestic relationships (as in the Domestic Relationships Act 1994 ACT)
domestic partnerships
de facto relationships (as in NSW, where until recently this referred exclusively to
other-sex relationships)
intimate relationships
Terms used to describe people in such relationships include:
 couples
 spouses
 putative spouses
 partners
The terms used to describe both the relationship and the people in it should satisfy a number
of criteria, as follow.
The terms should follow an accepted, everyday meaning.
The terms ‘husband’, ‘wife’, and ‘spouse’ (with or without qualification) for example,
should be avoided in part because they imply a relationship of certified marriage.
The terms should avoid encouraging any inference of hierarchy or preferred
relationship status.
Again, the discontinuation of ‘de facto husband’ and ‘de facto wife’ (and other terms with
obvious and immediate likening to bona fide marriage) is desirable. Where such terms are
used, they connote an implicit hierarchy of relationships (with marriage at the top of the
heap). There is also a legacy of gender hierarchy in marital roles (and thus also in overtly
‘marriage-like’ relationships) which many people may be anxious to avoid. Abandoning the
terminology of ‘husband’, ‘wife’, and ‘spouse’ would offer a chance for those who may wish
to avoid mimicking the traditions of marriage to distance themselves from those traditions.
This is likely to be attractive to many other-sex and same-sex partners. It should be noted,
however, that the choice to distance one’s relationship from the traditions of marriage is at
present available only to other-sex couples. Because same-sex partners do not have the
option to marry, there is no corresponding option to decline or reject marriage (except by
default).
The terms should be inclusive of a variety of relationships, and need not be labelled
‘same-’ or ‘opposite’-sex.
As noted at the beginning of this submission, we have chosen to use 'same-sex relationship'
or 'same-sex partnership' to refer to relationships between people of the same sex, and 'othersex relationship' or 'other-sex partnership' to refer to relationships between people of
different sexes. This terminology is useful not only for its accuracy and inclusiveness, but
also because it avoids the stereotypical characterisation of men and women as ‘opposites’.
A related issue concerns whether or not it is necessary to specifically exclude married people
from the scope of the legislation. In the examples quoted from Victoria and New South
Wales (in section 4-2-1), the definitions exclude those ‘not married’ (as does the ACT
legislation). What is the purpose of this exclusion? Since the affairs of people married to
each other would ordinarily come under the purview of Commonwealth laws, there seems to
be no valid reason for this distinction – except that it continues, arguably, to situate bona fide
marriage as the relationship exemplar. If the purpose of the proposed legislation is to
minimise discrimination on the basis of relationship choices, where matters pertaining to
(bona fide) marriage come into the purview of South Australian law, the law should be
scrutinised to assess whether same-sex partnerships and non-marital other-sex relationships
are treated differently.
The terminology should draw on how people describe their relationships in fact.
In this respect, the terms ‘partner’ and ‘relationship’ are obviously current, and refer,
inclusively, to a range of relationships which can be qualified any number of ways,
according to individual preference.
Recognising relationships
We propose a dual system for determining whether or not a relationship should be
recognised according to the various Acts under discussion. We propose both (a) the option
to register a relationship; and (b) default criteria concerning the duration and nature of the
relationship. Such a system would preserve the aim of protecting the interests of vulnerable
parties while offering a range of options to suit the variety of relationships under
consideration.
(a) Registered partnerships
Many same-sex and other-sex partners would welcome the opportunity to register their
relationship for the purposes of ensuring certain rights and responsibilities (such as those
listed above concerning property, intestacy, incapacitation, etc). The availability of a system
of registered partnerships offers a number of benefits, as follows:

People entering into a registered partnership could assume rights and responsibilities
automatically or by ‘opting in’ on particular matters. The ‘opt-in’ approach is preferable
because it maximises people’s ability to tailor an agreement according to their particular
circumstances. (This need not be a complex system – it could be as simple as ticking any
of a number of boxes.)

Such a system could accommodate ‘partnership agreements’ made at the commencement
of such relationships, and/or ‘separation agreements’ which could be entered into at any
time throughout the relationship or at its dissolution. The existence of such agreements
would promise efficiency in administration, abrogating the need for unnecessary court
proceedings.

The registered partnership system offers options for people in significant personal
relationships who may not be cohabiting. It is important to recognise such relationships
where the parties involved desire such recognition. Other-sex couples can choose to live
in separate places (houses, cities, states, countries) but remain in a recognised
relationship through marriage. Presently this option is not available to non-heterosexual
couples. In fairness, then, there should be some mechanism by which couples who may
live under separate roofs can maintain a legally recognised relationship.

Similarly, many people may wish to have a non-sexual relationship (adult siblings, for
example, or friends) recognised for various purposes. We can see no reason why such
relationships should not be recognised, whether or not the parties live together.
(b) Duration and nature of the relationship
In the absence of a registered partnership, the duration and nature of a relationship should
determine whether or not a partnership is imputed. The required duration and exact criteria
for determining the nature of the relationship demands a great deal of care and consideration,
and should be determined in consultation with interested parties. The kinds of issues which
might be considered for inclusion already come into play in a range of federal and state
rulings. When determining the precise criteria for imputing the existence of a relationship,
consideration should be given to the desirability of promoting uniformity across the various
Australian state jurisdictions.
5
Conclusion
We applaud the South Australian government's initiative in proposing to remove legislative
discrimination against same-sex partners in this state. As our submission makes clear, we
fully support legal recognition for same-sex partnerships and an inclusive approach to the
acknowledgement of a variety of partner and parenting relationships. We believe that such
recognition would represent a significant advance in achieving justice for all South
Australians. The proposed amendments are timely. They have the potential to benefit
partners in both same-and other-sex relationships and their children. We also believe that
legislative change has the potential to simplify a range of legal, medical and administrative
arrangements, thus achieving improvements in the administration of justice in this state. We
are pleased to have had the opportunity to respond to the government's Discussion Paper and
look forward to the passage of appropriate legislation.