|
‘Rights’ And The Law
There is much debate in Australia about rights and their legal recognition. Although the Constitution does not contain any explicit statement of the rights of citizens as in a Bill of Rights, many rights have gradually become part of our law.
Laws change over time, as society’s values change and as a result of social and political movements claiming rights.
This book does not focus on the debates about rights. Rather, it aims to explain the existing law, how it affects you and what you can do to strengthen your legal position.
Where The Law Comes From
There are two main sources of law in Australia:
- Legislation or Acts of Parliament.
This is made by both the State Parliament and the Commonwealth (Federal) Parliament. There are also regulations made in conjunction with Acts of Parliament.
- Common law.
This is made by judges in court when deciding cases. It evolves by judges adapting and applying the decisions of previous similar cases and relies on principles of ‘fairness’ and ‘reasonableness’.
State and federal law
Some areas of law are federal and some are state. Federal laws apply throughout Australia. State law applies only in the state where it is made. This publication concentrates on the state and federal law that applies in Western Australia.
Legal Recognition For All Couples
In 2002 and 2003 the Western Australian Parliament passed laws giving same-sex attracted individuals and all long term couples legal recognition in a number of areas.
The main ones are:
- anti-discrimination protection
- inheritance rights,
- stamp duty exemption,
- a system for property division if you split up,
- accident and workers compensation if your partner dies,
- partner’s State superannuation,
- recognition as ‘next of kin’,
- protection from discrimination on the basis of marital status,
- access to adoption
- access to reproductive technology
- recognition as a parent of a non biological child in some cases.
These laws do not create new rights specific to gay men and lesbians – rather, they remove previous discrimination. The law now recognises de facto partnerships regardless of the gender of the people involved. This includes transgender and intersex people.
Concept of ‘de facto partner’
These laws create a common definition for de facto relationships, called ’de facto partner’. This covers most long-term couples of any sex or gender that aren’t married. This includes transgender and intersex people. Many laws were changed by the law reform Acts to provide this common definition in WA state laws only. More information on who is considered de facto can be found in the Relationships section. De facto partner usually means a de facto couple of any sex or gender when talking about WA state law.
No effect on Federal law
These Acts amend WA law only. They do not change federal or commonwealth law. For example, they do not give people of the same sex the right to marry, as this is federal law. A recent court decision suggests that in some cases a person who has had a gender reassignment can marry someone of the opposite sex.
Gender Identity
The law (and modern Western society) is traditionally based on the notion of two sexes only - male and female. This has left many transgender and intersex people in legal limbo or having to fit uncomfortably into one of these two sexes. The law is changing very slowly to be gender neutral and only in isolated cases e.g. WA’s new laws for de facto couples
There is some discussion in this booklet of the legal status of transgender people and their relationships under the law. However, in explaining the law as it stands the booklet sometimes focuses on traditional terms that rely on the notion of only two sexes e.g. – same sex/opposite sex or homosexual/heterosexual or gay/straight. The producers of this book do not wish to offend people with non-traditional gender identities and we have avoided this terminology wherever possible. However, in the interests of plain language we use the term ‘transgender’ generally to include people with non-traditional gender identities
|
