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Australia – SOGI Legislation Country Report (2013)


Jurisdiction in Australia is divided between Federal and State levels of government. The examples of Tasmania and Western Australia are illustrative, and not necessarily representative of state-level legislation across the country.


Following the United Nations Human Rights Committee’s finding in Toonen v Australia (1994) that Tasmania’s criminalization of male same-sex sexual activity violated the International Covenant on Civil and Political Rights, the federal government passed the Human Rights (Sexual Conduct) Act, 1994. This Act legalized sexual activity between consenting adults throughout Australia, and prohibited the making of laws that arbitrarily interfere with the private sexual conduct of adults.

De facto relationships (including same-sex de facto relationships) are treated in the same way as opposite-sex marriages for the purposes of immigration (Migration Act, 1958).

While in practice refugees can claim asylum on the grounds of sexual orientation, this is done through the court system and is not codified in the legislation.

State: Tasmania

Following the Australian High Court case of Croome v Tasmania (1997), the Criminal Code Act, 1924 was amended to decriminalize male same-sex sexual activity, and make the age of consent the same for same-sex and opposite-sex sexual activity.

Discrimination is prohibited on various grounds including sexual orientation, relationship status, and association with a person who has any of these attributes (Anti-Discrimination Act, 1998).

“Relationship status” includes both significant relationships and caring relationships; a significant relationship is a relationship between two adults who are a couple and who are not married or related (Relationship Act, 2003).

While no marriage rights exist, same-sex couples in Tasmania have the ability to register their partnership as a “significant relationship,” providing same-sex couples with rights in the areas of superannuation, taxation, insurance, health care, hospital visitation, wills, property division, and bereavement leave (Relationship Act, 2003).

A mother is able to name another woman as a co-parent for a biological child (Adoption Act, 1988).

Artificial fertilization is available for female same-sex couples (Relationships (Miscellaneous Amendments) Act, 2009).

Altruistic surrogacy is available for all couples, including same-sex couples; commercial surrogacy is illegal (Surrogacy Act, 2012).

Tasmania recognizes gender reassignment provided that the person in question has gone through sex reassignment surgery (Births, Deaths and Marriages Registration Act, 1999).

State: Western Australia

The age of consent is the same for same-sex and opposite-sex sexual activity (Criminal Code Act Compilation Act, 1913, as amended in 2002).

Discrimination is prohibited on grounds of gender history and sexual orientation in multiple areas, including: employment; education; access to goods, services, and facilities; access to places and vehicles; and accommodation (Equal Opportunity Act, 1984).

For the purpose of anti-discrimination laws, sexual orientation refers to heterosexuality, homosexuality, bisexuality, and transsexuality (Anti-Discrimination Act, 1998; Equal Opportunity Act, 1984).

There is no formal recognition of same-sex relationships, but these relationships can be considered de facto; same-sex de facto partners have the same rights as opposite-sex partners in areas such as transfer of property and inheritance (Acts Amendment (Lesbian and Gay Law Reform) Act, 2002).

Western Australia allows joint adoption by same-sex couples (Adoption Act, 1994).

Artificial fertilization is available for female same-sex couples (Artificial Conception Act, 1985; Human Reproductive Technology Act, 1991).

Under the Surrogacy Act, 2008, altruistic surrogacy is only permitted for opposite-sex couples and commercial surrogacy is illegal.

Western Australia recognizes gender reassignment provided that the person in question has gone through sexual reassignment surgery (Gender Reassignment Act, 2000).

In The State of Western Australia v AH (September 2, 2010), the Supreme Court of Western Australia denied two applications for gender reassignment certificates because the individuals retained female internal reproductive organs and external genitalia. The High Court reversed this decision, holding that for the purposes of the Gender Reassignment Act, the physical characteristics by which a person is identified as male or female are confined to external physical characteristics that are socially visible (October 6, 2011).

link to complete text: Australia-SOGI Legislation Country Report-2013-eng