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LGBTIQ Rights and the Law (NT)
Advocates for LGBTIQ rights in the Northern Territory have campaigned long and hard for an end to discrimination against LGBTIQ people. As the law in the NT now stands, the rights of non-heterosexuals are protected in most areas. However, the NT Anti-Discrimination Act does not comprehensively protect individuals from discrimination on the basis of gender identity. The NT also does not have legislation prohibiting vilification on the basis of sexual orientation, gender identity or other attributes.
Consensual male homosexual acts were decriminalised in the Northern Territory in 1983 (female homosexual sex was never criminalised). The age of consent has been the same for same-sex and different-sex couples since 2003.
The Expungement of Historical Homosexual Offence Records Act was passed in 2018, making the NT the second last jurisdiction to allow individuals with convictions for consensual homosexual sex to have these records wiped. Western Australia passed similar legislation shortly after the NT.
The NT Chief Minister made a formal apology to the LGBTIQ community for the discriminatory laws of the past.
Adoption and surrogacy
Adoption by same-sex couples was legalised in the NT in 2018. Prior to the change, only married heterosexual couples could adopt. The NT adoption law now also allows single people to adopt but only in ‘exceptional circumstances’.
There is no law against either commercial or altruistic surrogacy in the NT. However, there are no clinics that provide surrogacy services due to the lack of regulation in this area.
Female partners of pregnant women are treated as the legal parents of the resulting children (Status of Children Act, Section 5DA).
De facto relationships
In 2003, the Law Reform (Gender, Sexuality and De Facto Relationships) Act 2003 redefined a de facto relationship in a way that included same-sex couples. This meant that same-sex de facto couples were able to utilise the courts to resolve property disputes with former partners in the same way as different-sex couples.
The Anti-Discrimination Act 1996 prohibits discrimination on the basis of attributes including sex and sexuality. ‘Sex’ is not defined in the act and it is unclear whether gender identities other than male and female are protected and whether a person’s gender identity, where it differs from their biological sex, would be protected. There have been calls for ‘gender identity’ to be included as a protected attribute.
LGBTIQ people are protected under federal law by the Sex Discrimination Act. However, this is subject to the exceptions under that legislative scheme, most notably in relation to religious freedom.
What LGBTIQ rights are not protected?
Territory law does not prohibit ‘hate speech’ against LGBTIQ people. However, the Territory does not have legal protections against vilification based on race, religion or disability either, making the NT the only Australian jurisdiction not to have enacted legislation that makes it an offence to incite racial hatred. Victims of racial vilification in the Territory can however make a complaint to the Australian Human Rights Commission under the federal Race Discrimination Act.
Calls have been made for anti-vilification provisions to be included in the Anti-Discrimination Act to protect LGBTIQ rights as well as protecting all Territorians against harassment, psychological distress, anger, hurt and anxiety resulting from vilification.
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