LGBT rights in Tasmania

Criminalisation and persecution

Sodomy was originally outlawed throughout the island from the time of British settlement. The law was retained post federation as in all other Australian jurisdictions. Tasmania was the last British Empire outpost to carry out the death penalty for sodomy in 1867. In the subsequent hundred years Tasmania had the highest rate of imprisonment for private consenting male sex anywhere in the world. In the late 1980s Premier Robin Gray stated that homosexuals were unwelcome in Tasmania and police recorded the vehicle registration plates of people attending gay community meetings. A gay rights stall set up in Salamanca Market in 1988 was repeatedly shut down by Hobart City Council with organisers arrested by police. By the early 1990s the state had the harshest penalty for gay sex in the Western world at 21 years imprisonment. During the 1980s and early 1990s six attempts at decriminalisation were emphatically rejected by the Tasmanian Legislative Council, with politician Robert Archer calling for homosexuals to be "tracked down and wiped out" by police. Social and political opinion remained sharply against LGBT rights until the late 1990s. Many LGBTI Tasmanians responded to the hostile sentiment by either relocating to the mainland Australian cities of Sydney or Melbourne, living in the closet or committing suicide.

UNHRC complaint and federal response

The Tasmanian Parliament's repeated refusal to pass laws decriminalising private same-sex sexual acts resulted in local resident Nicholas Toonen bringing a human rights complaint to the United Nations Human Rights Committee, which ruled in Toonen's favour. The Committee noted that "the criminalisation of homosexual practices cannot be considered a reasonable means or proportionate measure to achieve the aim of preventing the spread of AIDS/HIV," further noting that "The Australian Government observes that statutes criminalising homosexual activity tend to impede public health programmes by driving underground many of the people at the risk of infection." Gay activists and Amnesty International also mounted a campaign in favour of reform including demonstrations in the state and elsewhere, holding meetings between LGBTI Tasmanians and community groups across the state and gay men self-reporting their then-illegal consensual activities to police to illustrate that the laws were unenforceable, given that police would not prosecute them on the basis that it was not in the public interest.

Although the UNHRC decision effectively called on the federal Keating Government to overturn Tasmania's anti-homosexuality laws, Keating and his Attorney-General Michael Lavarch were initially slow to act, considering it a low-priority issue. The continued criminalisation led to a petition signed by 12,000 people and a "Buy Right" boycott campaign targeting Tasmanian tourism and produce until the laws were repealed.

Four months after the UNHRC decision and after failing to persuade the Tasmanian Government to repeal the offending laws, the Keating Government passed the Human Rights (Sexual Conduct) Act 1994, with section 4 legalising sexual activity between consenting adults throughout Australia and prohibiting any laws that arbitrarily interfere with the sexual conduct of adults in private. Lavarch stated the Tasmanian law was "an obnoxious criminal provision which doesn't exist anywhere else in Australia and is inconsistent with Australia's human-rights obligations".

The Catholic Right members of the Australian Labor Party initially opposed the federal legislation but ultimately agreed to support its passage, while the issue split the opposition Coalition, with many members exercising their conscience vote against it and replacing their relatively progressive leader Alexander Downer with the more conservative John Howard. This law did not directly invalidate the Tasmanian law, as the Keating Government preferred to avoid a challenge from conservative states about states rights and instead rely on the High Court to indirectly overturn the Tasmanian law. This approach was criticised by activists and academics for abdicating the political responsibility of legislators for an uncomfortable issue to the courts.

High Court case and decriminalisation

On 14 November 1995, Nick Toonen and his then-partner Rodney Croome applied to the High Court of Australia for a ruling that Tasmania's anti-gay laws were constitutionally overriden by the Human Rights (Sexual Conduct) Act 1994 and therefore invalid. The case was taken by Alan Goldberg QC, who provided his services pro bono after Croome and Toonen were denied legal aid to mount the case despite fulfilling the criteria for funding as a public interest test case.

In 1996 the state Liberal Party Government of Tony Rundle changed its position on gay law reform from opposition to allowing a conscience vote after failing in its attempts to have the High Court matter struck out and amid growing local support for reform. The Tasmanian Greens under Christine Milne then began to push vigorously for law reform.

As a result of these changes, on 1 May 1997 Tasmania became the final Australian jurisdiction to repeal its anti-homosexuality laws, passing the Tasmanian Legislative Council by one vote. The age of consent in Tasmania is 17 years and is equal for all forms of sexual activity.

Expungement proposal

In December 2015, the Tasmanian Liberal Government announced it would introduce legislation in the Tasmanian Parliament which would expunge historic criminal records for consensual homosexual sexual activity. This announcement followed a report released by the Tasmanian Anti-Discrimination Commissioner in April 2015 which recommended the establishment of such a scheme and how it should be modelled. Individuals charged with offences pertaining to homosexual sexual conduct prior to its decriminalisation in 1997 will be able to submit an application with the state's Secretary of the Department of Justice to have such charges removed from their criminal records. If passed by the Parliament, Tasmania would join four other Australian states and territories (New South Wales, South Australia, Victoria and the Australian Capital Territory) in creating such an expungement scheme. A draft bill was released by the Department of Justice in June 2016, though as of February 2017 the bill has not been presented to the Parliament.

Recognition of same-sex relationships

Tasmania's Relationships Act 2003 provides for registration and recognition of a type of registered partnership in two distinct categories: Significant Relationships and Caring Relationships. The same Act also amended 73 pieces of legislation to provide registered partners with nearly all of the rights offered to married couples within the state. Furthermore, since July 2009, these relationships are recognised at federal level, providing couples with almost all of the federal rights and benefits of marriage. The legislation came into effect on 1 January 2004. In September 2010, the Parliament of Tasmania approved legislation to recognise same-sex unions performed outside Tasmania as significant relationships.

Significant and caring relationships

Both same-sex and opposite-sex couples can register a Significant Relationship if both are unrelated, unmarried adults living in Tasmania. Tasmania introduced the scheme in 2003, becoming the first state in Australia to establish a relationship registration scheme that was open to all couples.

Likewise, two adults residing in Tasmania, related or not, can register a Caring Relationship if one provides the other with domestic support and personal care. The parties cannot be married to each other, cannot be in an existing significant or caring relationship, and neither can be receiving payment for the care of the other either from employment or government departments.

Both types of relationships provide identical rights in the following areas:

Couples entering into a significant or caring relationship sign a Deed of Relationship document. This is registered with the Registrar of Births, Deaths and Marriages. The registry then issues a certificate of registration, which is evidence of a personal relationship (significant or caring). Consequently the relationship will be legally recognised without having to satisfy any other criteria to prove its existence. Upon entering into a Deed of Relationship, couples are allowed to have a state-sanctioned ceremony to celebrate their union.

Recognition from other jurisdictions

Since being elected in 2007, the then current Prime Minister, Kevin Rudd, had been encouraging all states to create relationship registers identical to Tasmania's model in order to create nationwide uniformity and consistent rights, while at the same time not supporting anything that appears too similar to marriage. The Australian Commonwealth Government also recognises a Tasmanian registered partnership as a "de facto relationship" under federal law. De facto couples, whether same-sex or opposite-sex, have been entitled to nearly all of the federal rights of marriage since 1 July 2009.

In September 2010, the Tasmanian parliament passed legislation to recognise out-of-state same-sex unions as a significant relationships. In November 2014, New South Wales became the second state in Australia (after Tasmania) to recognise international same-sex marriages within the NSW relationship register.

Attempts at legalising same-sex marriage

In August 2012 Tasmanian premier Lara Giddings announced that Tasmania would pass new laws allowing same-sex couples to marry. However, although the same-sex marriage bill passed 13-11 in the lower house, the Legislative Council rejected the bill 6-8 on 27 September 2012. In December 2013, the Australian Capital Territory's Same Sex Marriage legislation was declared unconstitutional by the High Court of Australia due to inconsistency with the federal Marriage Act 1961. This may mean that the state parliaments do not have the legal capacity to legislate for same-sex marriage even if they wanted to. In November 2015, the lower house of Parliament passed a mostly bipartisan motion calling on the federal parliament to legalise same-sex marriage nationwide.

Marriage equality motion conscience vote

On November 19, 2015, the lower house of the Parliament of Tasmania, passed a motion by a vote of 15-9, calling on the federal government, to pass the Marriage Equality Bill 2015, based on a conscience vote. Both Western Australia and New South Wales also passed a similar motion. On August 9, 2016 the 15 member upper house of Tasmania (of mostly Independents) also passed a motion in favour of same-sex marriages. The vote was 8-5.

Motion wording:

1. Notes Members of the Tasmanian Legislative Assembly and community hold various views on the issue of marriage equality 2. Wishes our federal colleagues a respectful debate that is tolerant of all views 3. Notes the importance of MPs being free to express their own view and the views of their electorates on this issue

Adoption, surrogacy and parenting rights

Tasmanian law allows same-sex couples to adopt. The Adoption Act 1988 states that "an order for the adoption of a child may be made in favour of two persons who, for a period of not less than 3 years before the date on which the order is made, have been married to each other or have been the parties to a significant relationship which is the subject of a deed of relationship registered under Part 2 of the Relationships Act 2003." The Adoption Act 1988 was amended by the Parliament in June 2013 to allow same-sex couples to adopt children not known to them. This made Tasmania became the fourth jurisdiction in Australia at the time to allow same-sex couples full joint adoption legal rights.

Under section 10C of the Status of Children Act 1974, same-sex partners of women who give birth to children conceived through sperm donation, IVF or other artificial reproductive technology (ART) are presumed to be the child's other parent or co-mother in the same way as male partners of heterosexual women. Both mothers' can be placed on the birth cirtificate, allowing such couples to have access to the same rights of/for their children (such as medical or hospital forms, education processes, access to entitlements, etc.). The legislation on parentage from IVF is retrospective, meaning the law applied to co-mothers before it went into effect. Section 29 of the Adoption Act allows the female partner of the birth mother to adopt the child born as a result of the ART process.

In 2012, Tasmania passed two pieces of legislation to legally allow altruistic surrogacy. The two laws are called the Surrogacy Act No 34 and the Surrogacy (Consequential Amendments) Act No 31 Proposed altruistic surrogacy legislation was drafted and passed by both houses of the Tasmanian parliament - only after a review of the Surrogacy Contracts Act 1993 No 4 and after an ongoing community consultation process. Under the altruistic surrogacy legislation, the surrogate must be at least 25 years old and it cannot be her first pregnancy. The new altruistic surrogacy laws went into effect on 1 May 2013.

Recognition of gender identity

Tasmania allows for a change of sex but requires the person to divorce if married and to undergo sexual reassignment surgery. In February 2016 the Tasmanian Anti-Discrimination Commissioner proposed among other things that those two requirements be removed and that a "non-binary" sex descriptor be added.

Discrimination protections

The Anti-Discrimination Act 1998 (Tas) is a state law that prohibits ‘discrimination and other specified conduct’ (called ‘prohibited conduct’ in the Act) and provides ‘for the investigation and conciliation of, and inquiry into, complaints’ of discrimination and prohibited conduct. The Act outlaws discrimination in Tasmania on a wide variety of attributes, including gender, lawful sexual activity, actual or perceived sexual orientation and/or gender identity. In September 2013, the Act was amended to extend protections to transgender and intersex people, whilst also extending protections from offensive conduct to prohibit a person from offending, humiliating, intimidating, insulting or ridiculing another person on the basis of their actual or perceived gender, sexual orientation and/or gender identity.

Federal law also protects LGBTI people in Tasmania in the form of the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013.