LGBT rights in the Northern Territory

LGBT rights in the Northern Territory

Same-sex sexual activity legal? Legal since 1983
Gender identity/expression Change of sex requires sexual reassignment surgery and no subsisting marriage
Discrimination protections Yes (both federal and territory law)
Family rights
Recognition of
relationships		 Unregistered de facto unions since 2003
Restrictions:
 Same-sex marriage prohibited under federal law since 2004; see History of same-sex marriage in Australia
Adoption No

Lesbian, gay, bisexual and transgender (LGBT) people in Australia's Northern Territory lack certain rights available to other residents. Homosexual activity is legal with an equal age of consent. Same-sex couples are recognised as de facto relationships. There is no civil union or domestic partnership registration scheme available, with marriage restricted to heterosexual couples by federal law. LGBT people are protected from discrimination by both Territory and Commonwealth law.

Laws regarding homosexuality

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

Recognition of same-sex relationships

The Northern Territory is one of two jurisdictions in Australia not to offer relationship registries or official domestic partnership schemes to same-sex couples, the other being Western Australia. Cohabiting same-sex couples can be recognised as living in a de facto relationship, which cannot be registered but can be recognised by a court declaration for certain purposes.[4]

De facto recognition was made possible following the Law Reform (Gender, Sexuality and De Facto Relationships) Act 2003 amending the territory's De Facto Relationships Act to define de facto relationships as "2 persons...not married but have a marriage-like relationship".[5] This definition for the first time in the Territory resulted in LGBT people having a mechanism in the territory courts to resolve property disputes with their ex-partners. Prior to this reform, the non-financial contributions of a same-sex partner to a relationship could not be recognised in the same way as marriage or heterosexual de facto relationships. This could lead in some cases to a non-working partner not being able to obtain an appropriate property settlement.[6] Such reforms have since made it possible for same-sex couples in the NT to have most of the entitlements as married partners.[7] It also provides for de facto partners to make certain legal agreements relating to financial matters between the partners and ex-partners.[8]

In 2009 the then-Attorney General Delia Lawrie referred the matter of relationship registers to the Northern Territory Law Reform Committee, who declined to make a recommendation on the form that relationship recognition should take.[9]

Adoption and parenting rights

The Northern Territory's Adoption of Children Act specifically mentions that territory courts "shall only make an order for the adoption of a child in favour of a couple where the man and woman are married to each other and have been so married for not less than 2 years",[10] resulting in same-sex couples not having legal rights to apply to adopt (similar to South Australia).[11] Only in "exceptional circumstances" does territory law permit single LGBT or non-LGBT people to adopt.[12] An informal review of the territory's adoption laws was believed to have been undertaken by then Minister for Children and Families John Elferink in November 2015,[13] though no legislative reforms were made prior to the 2016 general election. Following that election the Territory's first gay indigenous MP Chansey Paech called for the Northern Territory to legalise same-sex adoption, indicating that some Cabinet ministers had already indicated their support to him.[14]

Since 2016 all Australian states and territories except for the Northern Territory and South Australia allow adoption by same-sex couples.

Northern Territory law makes no mention of commercial or altruistic surrogacy arrangements, making both practices technically legal in the state, however no clinics provide surrogacy services due to the lack of regulation.[15] Assisted reproductive technology (ART) treatments like sperm donation are small in comparison to other states and territories, though it is believed lesbian couples in the Northern Territory have been accepted by clinics for ART treatments.[16][17] Female de facto partners of pregnant women are treated under territory law as legal parents of any children born as a result of that birth.[18]

Discrimination protections

The Law Reform (Gender, Sexuality and De Facto Relationships) Act 2003[19] helped remove legislative discrimination against same sex couples in all areas of territory law – except adoption. The Act removed distinctions based on a person's gender, sexuality or de facto relationship in approximately 50 Acts and Regulations.

The Anti-Discrimination Act 1996[20] protects territory residents from discrimination on the grounds of sex and sexuality, amongst a host of other attributes, covering the areas of education; work; accommodation; goods and services; facilities; clubs; insurance and superannuation.[21] Transgender residents are not mentioned in the Act. Such individuals are entitled however to access sex reassignment surgery and subsequently have their name and birth certificate amended accordingly.[22]

Federal law also protects LGBT and Intersex people in the Northern Territory in the form of the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013.[23]

Summary table

Same-sex sexual activity legal (since 1983 for males; always for females)
Equal age of consent
Anti-discrimination state laws for sexual orientation
Anti-discrimination state laws for gender identity or expression
Hate crime laws include sexual orientation
Hate crime laws include gender identity or expression
Gay sex criminal records expunged
Gay panic defence abolished
Recognition in state law of same-sex couples as de facto couples
Step adoption by same-sex couples
Joint adoption by same-sex couples
Automatic IVF/artificial insemination parenthood for female partners
Access to IVF for lesbians
Same-sex marriages (federal jurisdiction)
MSMs allowed to donate blood (one year deferral - Australia-wide)

See also

References

  1. ↑ NT Criminal Code key details
  2. ↑ Gay law reform in Australian States and Territories: Northern Territory pp. 48-49
  3. ↑ Gay law reform in Australian States and Territories: Northern Territory pp. 48-49
  4. ↑ "Northern Territory, Australia" (PDF). Legal Recognition of Same-Sex Relationships. Jones Day. Retrieved 11 October 2016.
  5. ↑ De Facto Relationships Act NT: Sect 3A
  6. ↑ Law Reform Act Notes
  7. ↑ Same-sex relationship recognition in the NT: Australian Marriage Equality
  8. ↑ Law Reform Act Notes
  9. ↑ "Relationship Registers [2010] NTLRC 35". Austlii. Northern Territory Law Reform Committee. February 2010. Retrieved 23 October 2016.
  10. ↑ Adoption of Children Act Northern Territory: Sect 13
  11. ↑ Table of Eligibility, Suitability and Placement Criteria – Northern Territory
  12. ↑ Adoption of Children Act Northern Territory: Sect 14
  13. ↑ Adoption law under review in the Northern Territory
  14. ↑ Schubert, Stephen (25 November 2016). "NT should legalise same-sex adoption: Chansey Paech". ABC News. Australian Broadcasting Corporation. Retrieved 3 December 2016.
  15. ↑ "Call for surrogacy laws in the NT, commercial surrogacy in Australia". ABC News. 6 August 2014.
  16. ↑ "NT Election 2016: Full Scorecard of Candidate's and Parties' views on LGBTIQ rights". OutNT. 27 August 2016. Archived from the original on 19 October 2016. Kezia Purick: It was quite difficult to work out what the situation is in the NT...I contacted Repromed NT, who are the private firm in this area and they confirmed that their service is available to a Lesbian couple in the NT.
  17. ↑ "Territory sperm supplies in the hands of only three hard-working blokes". NT News. 12 October 2014.
  18. ↑ STATUS OF CHILDREN ACT - SECT 5DA
  19. ↑ De Facto Relationship Act details
  20. ↑ Anti-Discrimination Act full text
  21. ↑ Australia's anti-discrimination laws: NT
  22. ↑ NT.gov.au Sex reassignment surgery
  23. ↑ Australian Human Rights Commission

External links

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