Australian Gay and Lesbian Law Blog: February 2007

Wednesday, 28 February 2007

Ruddock prepared to veto ACT bill

Commonwealth Attorney-General Philip Ruddock has informed the ACT that the Commonwealth would recommend that the Governor-General disallow the Civil Partnerships Bill 2006 (ACT) in its current form.
In his letter to the ACT Attorney-General, Mr Simon Corbell, Mr Ruddock noted that while changes had been made, there remained significant similarities between the Civil Partnerships Bill and the disallowed Civil Unions Act 2006 (ACT).
"The revised bill has not removed the concerns that the Commonwealth had about the Civil Unions Act," Mr Ruddock said.
"It remains the Government's opinion that the Civil Partnerships Bill would still in its amended form be likely to undermine the institution of marriage.’’

Wednesday, 21 February 2007

Weapons of homicide

The Australian Institute of Criminology has published research showing that while thankfully the rates of homicide are down, the instruments of choice remain knives or sharp instruments- what are called weapons of opportunity- which are no doubt seen in domestic homicides.

Link: http://www.aic.gov.au/publications/cfi/cfi141.html

attitudes to forced sex

The Australian Institute of Criminology has recently published on its website research as to attitudes towards forced sex in Victoria. It is refreshing that of the 2800 Victorians surveyed, there was overwhelming consensus that forced sex is domestic violence.

Link: http://www.aic.gov.au/publications/cfi/cfi138.html

Recent Transgender article

Hooley, Jesse. (Lecturer, Faculty of Health Sciences, University of Sydney, Sydney NSW 2006) Normalising transgender and policing transgression: anti-discrimination law reform ten years on.Australian Feminist Law Journal v.25 Dec 2006: 79-98
The effects of the 1996 New South Wales Transgender (Anti Discrimination and Other Acts Amendment) Bill on transgender politics and subjectivities are examined. The article discusses transgender politics in the 1990s and examines the campaign of the Transgender Lobby Coalition and its influence on the structure and wording of the Bill, the lobbying of the Transsexual Action Group to exclude cross dressers, and the arguments that cross dressers are less deserving of legislative anti discrimination protection.

Courtesy Australian Institute of Family Studies

Proposed Legislation

The Department of Prime Minister and Cabinet has released the bills proposed for introduction to the Parliament in the next sittings.These include:

Evidence Amendment Bill- implement the government’s response to the recommendations of the Australian Law Reform Commission- amend the Acts Interpretation Act 1901 to provide for certain printed and electronic versions of Acts to be taken to be a complete and accurate record of those Acts- amend the Evidence and Procedures (New Zealand) Act 1994 to extend the arrangements for the enforcement of subpoenas to include family law proceedings

Family Law Amendment Bill- amend the Family Law Act 1975 to implement a range of measures

Family Law Amendment (De Facto Financial Matters) Bill- amend the Family Law Act 1975 to implement references of legislative power to the Parliament of the Commonwealth by some states on financial matters arising out of the breakdown of de facto relationships

Family Law (Same Sex Adoption) Bill- amend the Family Law Act 1975 to indicate that adoptions by same sex couples of children from overseas under either bilateral or multilateral arrangements will not be recognised in Australia

The bills have not yet seen the light of day. The Family Law (Same Sex Adoption) Bill has attracted some controversy- see the post of 14th February.

The Family Law Amendment (De Facto Financial Matters) Bill is likely to have the most far reaching changes. Currently the family law system in Australia has with the exception of Western Australia two parts: Commonwealth and State. Some matters fall within State law and some within Commonwealth law. Those matters within State law are dealt with in State courts, and those within Commonwealth matters are usually (but not always) dealt with in the Family Court of Australia or the Federal Magistrates Court of Australia.

WA is different as although there is both State and Commonwealth law, child support is governed by State law (which largely mirrors Commonwealth law), and family law cases have been dealt with in the Family Court of WA, although the Federal Magistrates Court has now started there too.

Confused? You're not alone.

If you're married, ordinarily you go to several courts when your marriage breaks down:

for parenting and property disputes to the Family Court or the Federal Magistrates Court
for divorce, to the Federal Magistrates Court
for domestic violence cases, to the (State) Magistrates or Local Courts.
If de facto couples have a property dispute, it is dealt with in the State courts, such as the Supreme Court of Queensland.

There are several problems:

different courts mean an increase in costs
different courts have different approaches, thereby leading to uncertainty, and increased costs
there are issues about jurisdiction of property disputes
different States and Territories have different rules as to what relationships are included, how property settlement is calculated, and whether spousal maintenance is payable.

In NSW for example, there is a much stricter view on contributions than in the Family Court (ie in general terms less paid to the woman), but there is the ability to pay spousal maintenance. Queensland's system by contrast largely mirrors the property provisions of the Family Law Act, but makes no allowance for spousal maintenance.

So to change the rules on property settlement for de facto couples to one system from 8 makes a lot of sense, until the devil in the detail is revealed. It is not known, at this stage, whether the same scheme applying to property settlement for married couples under the Family Law Act will apply to de facto couples.

The proposed changes will apply in all States other than SA and WA, each of which has refused to refer power to the Commonwealth.

The proposed changes (whatever they are) will only apply to heterosexual couples. Gay and lesbian couples, and those who are in interdependent relationships (recognised for example in the ACT) will still be under the State and Territory systems.

The proposed changes therefore mean that instead of largely one system for married couples and 8 for de facto couples, there will now be:
1 for married couples
3 for heterosexual de facto couples where their property or their relationship was everywhere but SA and WA, and those in SA and WA- clearly jurisdiction might still be an issue for some
8 for gay and lesbian couples
I will keep updates posted.

Wednesday, 14 February 2007

Ban on overseas gay adoptions?

The Government last week advised Senators that it intended to put before the Senate the Family Law (Same Sex Adoption) Bill, the purpose of which was "to amend the Family Law Act 1975 to indicate that adoptions by same sex couples of children from overseas under either bilateral or multilateral arrangements will not be recognised in Australia.”

Both Senator Andrew Bartlett, leader of the Australian Democrats and Rodney Croome, well known gay activist, have expressed their concerns about the proposed Bill, the text of which has not yet become available.

Links: Senator Bartlett http://www.andrewbartlett.com/blog/?p=1316#more-1316
Rodney Croome http://www.rodneycroome.id.au/comments?id=2342_0_1_0_C

Denver conference March 2007

I have the privilege of speaking at the (US) national domestic violence conference held on 16 and 17 March 2007 at the Sturm College of Law, University of Denver. The theme of the conference is dealing with the challenge of the conflict between the child protection sector and that of domestic violence. It arises from a recent case when a New York mother successfully challenged the policy of the local department which removed her children from her as a matter of course because, it contended, she had failed to protect them when she was being subject to domestic violence at the hands of her partner.

I intend speaking about the policies that exist in Australia about these issues, and I am sure the issue of same sex domestic violence will also be raised.

Any feedback as to what I should address?

Health in Difference Conference 2007

On 14th and 15 June 2007 Brisbane will be host to the Health in Difference conference: Changing Spaces, Changing Faces. It is the 6th National LGBT Health Conference. The 5 conference themes are: