A Guide To Equality For Gay Men, Lesbians and Bisexuals Under Wa Law

A GUIDE TO EQUALITY FOR GAY MEN,
LESBIANS AND BISEXUALS UNDER WA LAW
ABOUT EQUALITY RULES
EQUALITY RULES IS A JOINT PROJECT OF GAY AND LESBIAN EQUALITY (WA) INC.
AND GAY AND LESBIAN COMMUNITY SERVICES OF WESTERN AUSTRALIA INC.
THE AIM IS TO PRODUCE INFORMATION TO EXPLAIN RECENT CHANGES TO THE
LAW THAT AFFECT NON-HETEROSEXUAL PEOPLE.
D ISCLAIMER
1. The information contained in this publication is correct at the date of
publication. However, the law may change at any time.
2. This publication is distributed on the terms and understanding that

the publishers are not responsible for the manner in which this
booklet is used nor for the results of any actions taken on the basis of
information contained in this publication.
3. The contents of this publication do not constitute legal advice about

individual situations and contain only general information about the
law. No person should rely on this publication as legal advice
regarding a claim or individual case. There are many differences
depending on an individual situation which may affect an
individual’s rights.
4. This booklet is intended to provide users with a guide to the law and
procedure as it affects people dealing with Family Law issues. It
reflects the law current at the date of publication or amendment.
Although every effort has been made to ensure the accuracy and
correctness of the information, no responsibility for any loss or
damage arising from errors or omissions or from changes to the law
which have not been updated by the authors is accepted.
5. The information contained in this booklet is not intended to be a

substitute for professional legal advice.
F EEDBACK
Please provide any comments about this pubication to Gay & Lesbian
Equality WA Inc, or to order more more copies.
PO Box 420 Northbridge WA

Phone (08) 9487 0862
Email [email protected]
Web www.galewa.asn.au
gay and lesbian

community services
of western australia (inc)
PROJECT
ORGANISERS:
E Q U A L I T Y
R U L E S A GUIDE TO EQUALITY FOR GAY MEN,
LESBIANS AND BISEXUALS UNDER WA LAW
September 2003
© 2003 Gay and Lesbian Community Services of Western Australia Inc and
Gay & Lesbian Equality (WA) Inc
Any parts of this publication may be copied or adapted to meet local

needs by community based organisations without permission provided the
copies reproduced are distributed free of charge or at cost (not for profit)
and the source is fully acknowledged. For any reproduction with
commercial ends, or by government departments, permission must first be
obtained from the copyright holders.
CONTENTS
EQUALITY RULES
03 04
02 DISCRIMINATION VIOLENCE
05
- What Is - What Is Assault?
01 TAKING ACTION Discrimination?

- Sexual Assault
DEALING WITH
- Inform Yourself - Sexual Harassment And Rape THE POLICE
ABOUT THE LAW About Your Rights
- ‘RIGHTS’ And - Get Legal Advice

- Sexual Orientation
And Discrimination
- Violence Within
Relationships
- Your Rights And
Police Powers
06
The Law
- Make A Will - Exceptions And - Stalking - Railway Police And PRIVACY AND
- Where The Law Exemptions Transit Guards CONFIDENTIALITY
Comes From - Make A - Reporting An Assault
Legal Agreement - What You Can Do To Police - Reporting A Crime - Information Privacy
- Legal Recognition About Discrimination To Police
For All Couples - Authorise Others - Restraining Orders / - Confidentiality
To Act For You - Discrimination if threats or assaults - Complaints About
- Gender Identity (Power Of Attorney) At Work continue Police - Disclosure
4>5 6>8 9>13 14>17 18>20 21>22

12
HEALTH
13
09 - Privacy Of Your
Health Information
DEATH AND
PARENTING 11 - Hospital Visiting

INHERITANCE
- Wills
07 08 - Becoming A Parent 10 WORK AND - Access To Your

Health Information - Funeral Arrangements
MONEY
- Sperm Donors
SEX AND SEXUAL RELATIONSHIP PROPERTY AND
- Employment - Consent To - Property In
OFFENCES RECOGNITION - Living With Or RELATIONSHIPS Medical Treatment Joint Names
Parenting Children - Superannuation
- Consenting To Sex - Western Australian - Owning Property - Next Of Kin - Children
State Laws / - Separation And Together - Life Insurance
- Sexual Harassment “De Facto Partners” Disputes - Discrimination - Challenging A Will
- Separation And - Taxation Or Intestacy
- Beats & Sex In - Commonwealth / - Court Orders / Division Of Property / - Health Complaints
Public Places Federal Laws Parenting Who gets what - Social Security Process - Death Compensation.
23>24 25>27 28>34 35>37 38>41 42>43 44>46

01
ABOUT THE LAW L EGAL R ECOGNITION F OR
‘R IGHTS ’ A ND T HE L AW ALL C OUPLES
There is much debate in Australia about rights In 2002 and 2003 the Western Australian
and their legal recognition. Although the Parliament passed laws giving same-sex
Constitution does not contain any explicit attracted individuals and all long-term couples
statement of the rights of citizens as in a Bill of legal recognition in a number of areas.
Rights, many rights have gradually become part
The main ones are:
of our law.
• anti-discrimination protection
Laws change over time, as society’s values • inheritance rights,
change and as a result of social and political • stamp duty exemption,
movements claiming rights. • a system for property division if you split up,
• accident and workers compensation if your
This book does not focus on the debates about partner dies,
rights. Rather, it aims to explain the existing law, • partner’s state superannuation,
how it affects you and what you can do to • recognition as ‘next of kin’,
strengthen your legal position. • protection from discrimination on the basis of
marital status,
W HERE T HE L AW C OMES F ROM
• access to adoption
There are two main sources of law in Australia: • access to reproductive technology
• recognition as a parent of a non-biological
• Legislation or Acts of Parliament.
child in some cases.
This is made by both the State Parliament and
These laws do not create new rights specific to
the Commonwealth (Federal) Parliament. There
4 are also regulations made in conjunction with
gay men, lesbians and bisexuals – rather, they
remove previous discrimination. The law now
Acts of Parliament.
recognises de facto partnerships regardless of
• Common law. the gender or sexuality of the people involved.
This includes transgender and intersex people.
This is made by judges in court when deciding
cases. It evolves by judges adapting and applying Concept of ‘de facto partner’
the decisions of previous similar cases and relies
These laws create a common definition for de
on principles of ‘fairness’ and ‘reasonableness’.
facto relationships, called ’de facto partner’. This
State and federal law covers most long-term couples of any sex or
gender that aren’t married. This includes
Some areas of law are federal and some
transgender and intersex people. Many laws
are state. Federal laws apply throughout
were changed by the law reform Act to provide
Australia. State law applies only in the
this common definition in WA state laws only.
state where it is made. This publication
More information on who is considered de facto
concentrates on the state and federal law
can be found in the Relationships section. In this
that applies in Western Australia.
booklet de facto partner usually means a de
facto couple of any sex or gender when talking
about WA state law.
www.equalityrules.info
wish to offend people with non-traditional

No effect on federal law
gender identities and we have avoided this
These Acts amend WA law only. They do not terminology wherever possible. However, in the
change federal or commonwealth law. For interests of plain language we use the term
example, they do not give people of the same sex ‘transgender’ generally to include people with
the right to marry, as this is federal law. A recent non-traditional gender identities
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 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 slowly to
be gender neutral and only in isolated cases e.g.
WA’s new laws for de facto couples.
There is 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
5
gay/straight. The producers of this book do not
WHERE TO GET HELP OR MORE INFO

International Foundation for Androgynous Gay & Lesbian Community Services of WA (Inc.)
Studies (IFAS)
Room 2, City West Lotteries House
PO Box 1066 Nedlands 6909
NEDLANDS WA 6907 2 Delhi Street
(08) 9487 0482 West Perth WA 6005
Counselling and Information line:
www.ifas.org.au
(08) 9420 7201 or 1800 184 527
TransWest: The Transgender Association of WA
[email protected]
PO Box 1944 www.glcs.org.au
Subiaco WA 6904
Freedom Centre
Chameleon Society of WA (Inc.) (for cross-
dressers and transsexuals) (08) 9228 0354
PO Box 367 [email protected]
Vic Park WA 6979 www.freedom.org.au
0418 908 839
TransCommunityWA
[email protected]
Check www.equalityrules.info for contact details
www.chameleonswa.com
02
TA K I N G A C T I O N or a community legal centre. Further legal
representation or complex advice may depend on
W HAT YOU CAN DO
a means test and other guidelines.
There are some simple steps people can take to
Some private solicitors offer a first appointment free
make the most of the law.
of charge or at low cost – always ask about this.
• Inform yourself about your rights.
The Law Society’s Law Access has listings of
• Get legal advice on your financial and lawyers who specialise in particular areas of law –
parenting arrangements. (08) 9322 4911.
• Make a Will. Gay and Lesbian Community Services’

Counselling and Information line has a list of gay-
• Formalise your property arrangements with
friendly lawyers – (08) 9420 7201.
a legal agreement.
The role of a lawyer is to explain your legal
• Make a power of attorney.
position, give you options, and advise you on the
INFORM YOURSELF ABOUT YOUR RIGHTS best course of action.
The first and most important step is to find • They must act on your instructions.
out how you are affected by legal issues in
• You do not have to take their advice.
your own life. This book is a good starting
point, but you may need to use other • Make sure you ask questions if there’s
resources as well. anything you don’t understand.
There are many useful Internet sites, publications • If you encounter discrimination from a
and organisations that can give you information. lawyer, you can complain to the Equal
6 Some are listed in this book. You might also want to Opportunity Commission (see the
get in touch with groups such as Gay and Lesbian Discrimination section) or the Legal
Equality to find out what you can do to help reform Practitioner’s Complaints Committee.
our laws. We will only achieve change by speaking
• Always check costs with a lawyer before
out and working towards a fairer system.
signing a contract with them. You can ring
G ET L EGAL A DVICE around to compare costs and services.
You can get free or cheap legal advice or

information from Legal Aid WA on 1300 650 579
WHERE TO GET HELP

Legal Aid WA Gay & Lesbian Community Services
Information Line: 1300 650 579 for a list of gay friendly lawyers
TTY: 1800 241 216 Counselling and Info Line – (08) 9420 7201
or 1800 184 527
www.legalaid.wa.gov.au
www.glcs.org.au
Community Legal Centres Association
for referral to your nearest centre Legal Practitioners Complaints Committee
(08) 9221 9322 for complaints about lawyers
(08) 9461 2299
Law Society of WA
Referral Service Telephone Interpreter Service
(08) 9322 4911
13 14 50
www.lawsocietywa.asn.au
M AKE A W ILL make a legal agreement about parenting

arrangements (see the Parenting section). It is
Everyone over the age of 18 should have a
important to get legal advice about these issues.
Will. Even though you may not think you
own very much, everyone has personal A UTHORISE O THERS T O A CT F OR Y OU
possessions that they might want their (P OWER O F ATTORNEY )
partner or close friends to have.
Your ‘legal capacity’ to make decisions for
Making a Will is the best way to ensure that your yourself can be affected by illness or injury.
property goes to the people of your choice. You can protect your interests in the long
term by appointing someone now who will
If you die without a Will your property will be
have the power to make important decisions
divided up according to a formula in WA law.
for you if you ever become legally
Changes to the law have given inheritance
incapacitated (see Types of Powers of
rights to all couples no matter what sex the
Attorney below).
people are.
You can appoint your partner or a friend or
That means that if you have been living with
anyone else you choose. The person you
someone as a de facto partner at the time of
appoint should be someone reliable who you
your death, that person has the right to inherit
trust. Before giving someone a power of
your property. For the legal definition of ‘de
attorney, discuss it thoroughly with the person
facto partner’ see the Relationships section.
you intend to appoint. Your attorney (or
If you are married your spouse may also have guardian) must act ‘in your best interests’.
some inheritance rights. To help them do this you should talk about
what you would want in various situations.
If you want to keep control over who inherits
your property, you must make a Will. If you don’t authorise someone to act for 7
you in the future and you become legally
Despite the new law, your partner’s right to a incapacitated, decisions will be made for you by
share of your superannuation may be limited. someone you haven’t chosen. This could be your
Leaving it to them in your Will may be the only ‘next of kin’ (possibly, but not necessarily, your
way they will benefit from your superannuation partner) or a guardian appointed by the state
after you die (see the Work and Money section). government. This is discussed in relation to
medical decisions (see the Health section).
For more information about Wills (and funerals)
and what happens if there isn’t a Will, see the ‘L EGAL CAPACITY ’
Death and Inheritance section.
When a person makes any financial or legal
M AKE A L EGAL A GREEMENT decision or transaction, they must have the legal
capacity to do so. ‘Capacity’ means that they
You can formalise property ownership or financial
have to understand the consequences of a
arrangements between you and your partner by
decision, be able to take responsibility for
making a property agreement. (It is also important
making a choice, and be able to make a choice
to keep financial records and receipts.)
based on the risks and benefits for them. For
This will help avoid future problems if your example, a person might lose legal capacity if
relationship breaks down. This is discussed they were in a coma or had dementia.
further in the Property section. You can also
T YPES OF POWERS OF ATTORNEY • Guardianship and Administration
• Power of Attorney If someone loses or doesn’t have the capacity to

make decisions and no enduring power of
A general power of attorney enables someone to
attorney exists then the Guardianship and
act on your behalf in relation to property and
Administration Board can appoint a guardian or
finances. This is the sort of power of attorney
administrator. This gives the appointed person
you would use to allow someone to operate
power to make decisions about general lifestyle,
your bank account while you are overseas. It
day-to-day care and living arrangements. It can
must be given when you have legal capacity to
also allow the guardian to consent to medical
make decisions and is no longer valid if you lose
treatment on the person’s behalf.
legal capacity.
• Enduring Power of Attorney
An enduring power of attorney is a legal

document in which one person gives another
the legal authority to make financial and legal
decisions on their behalf. A person can only
make an enduring power of attorney whilst they
are still capable of making those legal and
financial decisions for themselves. It does not
apply to consent to medical treatment.
An enduring power of attorney must be signed

while a person still has legal capacity. It will
8 remain effective even though they may later
suffer loss of capacity due to disability or illness.
Once capacity is lost through disability or illness,
an enduring power of attorney cannot be signed
or revoked. You can cancel them at any time as
long as you have capacity.
FOR MORE INFO

Department of Justice website Guardianship and Administration Board
for a kit, forms and info on enduring powers of for guardianship orders
attorney and guardianship and administration
(08) 9278 7350
www.justice.wa.gov.au
Freecall: 1800 191 009
Public Trust Office
Office of the Public Advocate
for enduring powers of attorney
for information on both enduring powers of
(08) 9222 6777 attorney and guardianship
Freecall (non-metro): 1800 642 777 (08) 9278 7300
Freecall: 1800 807 437

03 www.equalityrules.info
D I S C R I M I N AT I O N more than one attribute. The attributes include

People who are attracted to the same sex or sexuality (including presumed sexuality), gender,
do not conform with gender stereotypes still marital status (including being single or in a de
face discrimination and harassment in a facto couple of any sex), age, physical features,
variety of situations. pregnancy, status as a parent or carer, race,
ethnicity and national origin, and religious and
There is both state and federal legislation political beliefs.
making discrimination and harassment unlawful
in certain areas and on certain grounds. Both S EXUAL H ARASSMENT
the federal and state laws may cover your
The Equal Opportunity Act 1984 (WA) and the
circumstances. The legislation is not identical so
Sex Discrimination Act (Cth) prohibit sexual
before making a claim you should seek legal
harassment in some areas. In some cases, such
advice about whether your circumstances fit
as sexual assaults, sexual harassment can also
within the law. You should also find out whether
be a crime.
you should bring a claim to the Equal
Opportunity Commission (WA) or the Human What is sexual harassment?
Rights and Equal Opportunity Commission
Sexual harassment means unwelcome conduct
(Commonwealth) or some other place.
of a sexual nature (including an unwelcome
Time limits apply in most cases so you should sexual advance or request for sexual favours).
get advice as early as possible. Sexual conduct includes making a statement of
a sexual nature concerning a person – whether
W HAT I S D ISCRIMINATION ? the statement is written or spoken and whether
Discrimination occurs where, because of a it is made to the person directly, or in their
presence. It can include negative jokes and
characteristic covered by the legislation (such as
sexuality, or disability) one person treats another remarks about someone’s sexuality, or
9
less favourably than they would treat a person unwanted advances by someone of the same
who didn’t have that characteristic. or a different sex.
Not all adverse treatment is discrimination, Under the Equal Opportunity Act, the person
and not all discrimination is against the law. being harassed must have reasonable grounds
Discrimination is unlawful when for believing that they would be disadvantaged if
they rejected the conduct, or they must actually
• it happens because of an attribute or reject the conduct and be disadvantaged as a
"ground" covered by the law; and result. Under the Sex Discrimination Act the
conduct must happen in circumstances where a
• it happens in an area of public life covered
reasonable person would have anticipated the
by the legislation; and
person being harassed would be offended,
• it is not covered by an exception humiliated or intimidated.
or exemption.
When is sexual harassment unlawful?
Grounds Of Discrimination
Sexual harassment can be unlawful in
There are various grounds of discrimination in connection with a variety of areas of public life.
anti-discrimination legislation. Sometimes Some of the areas in which it is unlawful are
people are discriminated against because of employment (including contract or commission
agent work and harassment by employment • provision of goods, services, or facilities
agents), education, accommodation, and the
• in the area of accommodation
provision of goods, services or facilities.
• disposal of land
S EXUAL O RIENTATION A ND
D ISCRIMINATION • membership of a club
The not so good news… • application forms (requiring information

about a particular sexual orientation).
Discrimination on the grounds of sexuality is not
covered in the federal anti-discrimination Watch this space...
legislation. However, the Human Rights and
Equal Opportunity Commission can investigate On 4 September 2003, the United Nations
and conciliate a complaint of sexual preference Human Rights Committee found that the
discrimination in employment. It is also unlawful federal government violated article 26 of the
under the Workplace Relations Act 1996 (Cth) to International Covenant on Civil and Political Rights
dismiss someone because of their sexual in refusing a pension to a man who had been in a
preference, or for reasons which include their same sex couple. The man had applied for the
sexual preference. There are some exceptions pension as the dependent of his partner - a war
to this relating to the inherent requirements of a veteran - but it was denied because he was not
job, and staff of religious organisations. considered a "member of a couple" under the law.
The United Nations has asked the federal
The good news… government to address this discrimination.
(Case No. 941/2000: Young v. Australia)
The Equal Opportunity Act (WA) makes it
unlawful to discriminate against someone on the Article 26 of the Covenant…
10 basis of their sexual orientation in some areas of All persons are equal before the law and are
public life. Sexual orientation means entitled without any discrimination to the equal
homosexuality, lesbianism, bisexuality or protection of the law. In this respect, the law
heterosexuality. The Act covers discrimination shall prohibit any discrimination and guarantee
on the basis of a person’s actual sexual to all persons equal and effective protection
orientation or discriminating against someone against discrimination on any ground such as
because their sexuality was presumed. race, colour, sex, language, religion, political or
other opinion, national or social origin, property,
Sexuality discrimination is unlawful in the
birth or other status.
following areas:
Marital status
• employment, including contract for service,
casual, commission agents, contract Under the federal Sex Discrimination Act 1984
workers, partnerships of 6 or more persons, (Cth) discrimination on the basis of ‘marital
membership of employee or employer status’ doesn’t include being in a same sex
organisations, qualifying bodies, and couple. However, you can complain about
employment agencies discrimination on the basis of your ‘single’ (i.e.
unmarried) status.
• discrimination by an educational authority in
the area of education Under the Western Australian legislation, it is
unlawful to discriminate against someone
• access to places and vehicles
because of their marital status. Marital status E XCEPTIONS A ND E XEMPTIONS

includes, among other things, being single,
There are specific exceptions to the times when
a de facto partner or married. De facto partners
discrimination is unlawful under each ground.
include partners of any sex. The areas in which
For example, it is not unlawful to do something
discrimination on the ground of marital status is
which aims to ensure that people of a particular
unlawful are similar to those for sexuality – but
sexual orientation have equal opportunities
not identical.
afforded to them or to ensure persons of a
Impairment particular sexual orientation access to facilities,
services or opportunities to meet their special
Under the Equal Opportunity Act (WA) and the
needs in relation to employment, education,
Disability Discrimination Act 1992 (Cth) it is
training or welfare.
unlawful to discriminate against someone who
has an impairment. This can include people Insurance
who:
Insurance companies can impose different terms
• have HIV/AIDS, or refuse cover to someone on the ground of
impairment if it can be supported by statistical
• are thought or presumed to have HIV/AIDS,
data, e.g. smokers are more likely to become ill
• may have HIV/AIDS in the future, or die. It may be reasonable to treat someone
with HIV differently. It is not reasonable to
• are a carer of someone with AIDS.
assume that all gay men pose a greater
Discrimination is allowed if it is ‘reasonably insurance risk.
necessary’ to protect the health, safety or
Religious beliefs or principles
property of any person or the public generally.
At work, the employer must consider whether Discrimination is allowed if it is based on 11
the person can fulfil the ‘inherent requirements’ genuine religious beliefs or principles.
of the job, i.e. what is necessary to get the This includes the actions of religious bodies
basic job done. or schools.
Gender History Small business
It is unlawful under the Equal Opportunity An employer who employs no more than
Act (WA) to discriminate against a "gender the equivalent of five full-time employees
reassigned person" (i.e. a person who has (not including family members) can
undergone a gender reassignment procedure discriminate when hiring staff, but not
and has been issued with a recognition once you are employed.
certificate) on the ground of that person’s
What You Can Do About Discrimination
gender history. The areas of public life
covered are similar to those covered in Contact the Equal Opportunity Commission. The
relation to sexuality discrimination. A person Enquiry Unit can be contacted by telephone on
has a "gender history" if they identify as, or (08) 9216 3934 or toll free on 1800 198 149 or
seek to live as a member of a sex which was TTY (08) 9216 3936 on each week day, or by
not their sex at birth. email [email protected].
The Commission can advise you of your legal D ISCRIMINATION AT W ORK
options under both state and federal law. Your
One of the most common forms of
complaint will be dealt with confidentially. The
discrimination experienced by gay men,
commission is not a court or tribunal, it operates
lesbians, bisexuals and transgender people is
through conciliation. You need to think about
harassment in the workplace. This can take the
what outcome you want. This can include things
form of jokes, snide remarks, put-downs,
like an apology, payment of compensation, an
isolation or failing to use a gender re-assigned
undertaking to employ or promote you or to
person’s preferred name and pronouns. This can
provide accommodation (depending on the
affect work performance, chances of promotion
case), or a policy change.
and access to other benefits such as training
Discrimination can be difficult to prove. and professional development.
Nevertheless, changes often occur because
You can complain about discrimination in your
someone has made a complaint, and you may
workplace. If you are worried about the
help someone else, even if it doesn’t improve
confidentiality of your complaint in the
your situation.
workplace, discuss the problem first with the
If you are victimised because you have Equal Opportunity Commission. They can advise
complained, you can make another complaint to you of your options. If you think you may be
the commission about that. experiencing discrimination or harassment, make
sure you consult a doctor, counsellor or similar
professional. Apart from helping you to cope,
any notes taken may become important
evidence in a legal case. Also, it is a good idea
to take notes about what is happening. Notes
12 taken around the time of the incidents can be
valuable evidence.
What to do
Anti-discrimination legislation
You can make a complaint under the Equal

Opportunity Act or the Human Rights and Equal

WA Equal Opportunity Commission Australian Human Rights and Equal
Opportunity Commission
Commissioner for Equal Opportunity
Level 2, Hartleys Building Telephone: (02) 9284 9600
141 St George's Terrace Complaints Infoline: 1300 656 419
Perth WA 6000 Privacy Hotline: 1300 363 992
General enquiries and publications: 1300 369 711
(08) 9216 3900
www.hreoc.gov.au
www.equalopportunity.wa.gov.au
United Nations
[email protected]
www.un.org
Opportunity Commission Act 1986 (Cth). There

are time limits to making a complaint, so you
should get advice promptly.
Workplace Relations Act
Under this federal Act it is unlawful to dismiss

an employee because of their sexual
preference. You only have 21 days to lodge a
complaint with the Australian Industrial
Relations Commission, (08) 9464 5172.
You may also have a claim under WA unlawful

dismissal legislation. You only have 28 days to
lodge a complaint with the WA Industrial Relations
Commission telephone (08) 9420 4444.
Union
You can talk to your union representative.
Award or enterprise agreement
The award or agreement relevant to your job

may have anti-discrimination provisions similar
to the Equal Opportunity Commission.
Workplace policies may also prohibit
discrimination and harassment. 13
WorkCover
If the harassment is causing you stress and you

need to take time off work, you may be able to
make a WorkCover claim. See your doctor to
start the process. Get advice about the
applicable time limits.
Professional association
If you or the person you are complaining about

are members of a professional association, you
can talk to that association.
Police
If you have been physically assaulted or

threatened, you can complain to the police (see
the Violence section).
04
VIOLENCE Rape is an act of sexual penetration without
consent. Sexual penetration includes
Lesbians, gay men, bisexual and transgender
people may not report violence to the police or penetration of a person’s mouth, anus or vagina
other organisations for many reasons, including by another person’s penis, an object or another
not wanting to ‘out’ themselves, fear of part of the body. It is also rape when one person
homophobic responses from police officers or forces another to penetrate them.
their report not being taken seriously.
Reported sexual assaults or rapes are usually
Violent behaviour is unlawful and you can take referred to special police units with expertise in
action, no matter who it’s coming from. Whether this area. However, there are procedures all
it’s ‘gay bashing’, sexual assault, domestic police must follow which are designed to
violence or vandalism, it’s an offence and you support and protect the victim and their rights.
can report it to the police. For many sexual assault victims, reporting the
crime to the police is a difficult decision to
You may also be able to take civil action make. There is no time limit on reporting these
against the perpetrator for damages. Get legal crimes, although reporting immediately may help
advice first. police to collect necessary evidence. You can
get assistance for this from the Sexual Assault
If the police have been violent towards you, you
Resource Centre.
can make a formal complaint.
W HAT I S A SSAULT ? S E X U A L A S S A U LT
RESOURCE CENTRE
An assault is when a person strikes, touches, (SARC)
moves, or applies force to you (directly or
If you have been sexually assaulted, you can get
indirectly) without your consent. This includes help from the Sexual Assault Resource Centre.
14 hitting and spitting. SARC services include counselling and support;
information and referral; and the collection of
Assault can also include threats to harm you medical and other evidence of the assault.
made in circumstances that make you fear SARC counsellors can help you decide whether
for your safety. You can report an assault to to report the assault to police.
the police. SARC generally has women working as
counsellors. If you wish to see a male
There is no time limit for making a report to the counsellor, you can ask to be referred to a male
police about an assault. However, the sooner counsellor familiar with sexual assault issues.
you report it, the easier it is for the police to
Contact SARC (crisis line 24 hours) on
charge the person. (08) 9340 1828 or 1800 199 888
(Freecall - state wide)
S EXUAL A SSAULT A ND R APE
Other rural sexual assault assistance services
Sexual assault is when a person ‘indecently can be found in:
assaults’ another person. This covers sexual
Geraldton - (08) 9964 1833 (crisis 24 hour) or
acts that don’t involve penetration, such as
1800 016 789 (Freecall)
touching breasts or buttocks without consent.
(For meaning of consent, see the Sex and Port Hedland – (08) 9172 5044 (crisis 24 hour)
Sexual Offences section). Kalgoorlie - 1800 688 922 (crisis 24 hour)
Mandurah - (08) 9535 8263

V IOLENCE W ITHIN R ELATIONSHIPS ("pleads not guilty") then the matter will go
to trial. It is likely that the police will need
The term ‘family violence’ or ‘domestic violence’
you to give detailed evidence in court about
describes physical and sexual violence, threats,
the assault. You may have to answer
abuse, or emotional and psychological
questions about your personal life – if this is
intimidation directed towards any person by
their partner or any member of their family. relevant to the assault.
This also includes any person you have had an

• Privacy
intimate relationship with – you don’t have to be
living with them. Be aware that courtrooms are generally open to
the public and the media. This may mean parts
You can take action to protect yourself from
of your private life, including your sexuality,
family or domestic violence by applying for a
could become public. However, the courts are
Restraining Order (see the info below –
Restraining Orders). You can also report the very busy and many cases go unnoticed.
violence to the police. The police can apply for a
• You cannot withdraw charges
Restraining Order for you. They may also charge
the person with a criminal offence. You can get Once you have made a complaint and a person
more information and support from the Domestic has been charged, you cannot "withdraw the
Violence Resource and Referral Service – (08) 9226 charges". Only the police can decide not to
2366 or Legal Aid 1300 650 579. continue. It is important that you bear this in
S TALKING mind if you have any doubts about making a

complaint. Be sure that you intend to follow it
‘Stalking’ includes repeatedly following through and have the support you need when
someone, telephoning them or sending you decide to make a complaint.
messages, loitering near their house or 15
workplace, watching someone and any other What do you need to make a report?
repeated behaviour that makes someone fear for
To make a report the police will need:
their safety. If you are being stalked, you can call
the police. You can also apply for a Restraining 1. The facts and circumstances of the assault.
Order (see the info below: Restraining Orders – if When you report an assault to the police
threats or violence continue). you will be required to make a statement.
R EPORTING A N A SSAULT T O P OLICE The statement should include all the

relevant facts and circumstances involved in
Things to consider before reporting an the "commission of the offence".
assault to police.
2. Your name and contact details. You will
• Disclosing personal information
need to provide your name and contact
When you make a report to the police and the details so the police can contact you.
police charge the person two things might happen:
3. Names of any witnesses and any evidence.
1. If the person admits the assault ("pleads If you don’t have any witnesses, you can
guilty") then the person will be convicted still make a complaint to the police. Many
and given a penalty or assaults occur between two people when
there is no one else around. Keep medical
2. If the person does not admit the assault
records and photographs of any injuries you someone from acting in an offensive way, keep
have sustained as a result of the assault. from within a certain distance of you, stay away
from your home and place of work, stop them
Where do I make a report?
from communicating with you, and any other
To report an assault contact: order that is necessary to protect you. For more
information and assistance with applications:
• your local police station; or
• call the Legal Aid Information Line on
• if you don’t want to make a report to your
1300 650 579 or visit their web site
local police station, contact the Community
policing or diversity Officer at your local
Police District office. They should be trained • visit the Department of Justice web site at
in sexuality and gender issues. www.justice.wa.gov.au
When reporting an assault to the police you • In emergencies, police can apply for a
need to give as much detail as possible about Restraining Order on your behalf 24 hours
when and where the assault took place, and a day.
naming or describing the offender. This can be
difficult to do. You may wish to take someone
with you for support.
What if the police don’t help me, don’t take

me seriously or are homophobic?
If you have any problems with how the police

16 have handled your complaint or any other matter,
talk with the Diversity Officer at your local police
district office (these officers are trained in gay &
lesbian liaison issues). You can also make a
complaint to the Sergeant in Charge of the
particular police station and the Commissioner of
Police. If you don’t get a satisfactory result, you
can complain to the Ombudsman. See the section
Dealing with Police.
R ESTRAINING O RDERS - IF THREATS OR

ASSAULTS CONTINUE
If you are afraid that the assaults and/or

threatening behaviour may continue, you may
want to think about getting a Restraining Order.
A Restraining Order is a court order designed to

protect someone from threatening behaviour or
violence. A Restraining Order can stop
A S S I S TA N C E F O R W H AT A B O U T
VICTIMS OF C O M P E N S AT I O N ?
VIOLENCE
If you have been injured or suffered loss as a
The Department of Justice’s Victim Support result of a criminal offence, you may be able to:
Service offers a number of services for victims
• claim a compensation payment from
of crime including:
the Government;
• providing information and support on the
• bring a civil claim against the offender;
status of police investigations and in
court proceedings • ask a court to give you a compensation or
restitution order against the offender.
• helping write a victim impact statement
Time limits apply to making these claims so you
• providing counselling and support and
should get legal advice as soon as possible.
referral to other appropriate services
Legal Aid WA has a pamphlet "Compensation
• helping you understand your rights within
for Victims of Crime". It has more information
the criminal justice system
about compensation. You can get a copy at
• helping with inquiries about criminal injuries www.legalaid.wa.gov.au or by calling 1300 650
compensation claims. 579. The Department of Justice also has
information at www.justice.wa.gov.au
The Department of Justice also offers mediation
between victims and offenders through the
Victim Offender Mediation Unit, coronial
counselling through the Coroner's Court and
comprehensive information on restraining orders
and compensation. Contact the Victim Support
Service on (08) 9425 2850 or 1800 818 988
(outside metro only)
17

Apart from the police in emergencies, for more If your enquiry relates to assaults and/or threats
information and advice contact: by a partner or family member or domestic
violence you can also contact:
• Legal Aid’s Information Line 1300 650 579 or
TTY 1800 241 216 • Legal Aid’s Domestic Violence Legal Unit
- (08) 9261 6254
• Sexual Assault Resource Centre (SARC)
(08) 9340 1828 or 1800 199 888 • Domestic Violence Resource and Referral
Centre – (08) 9226 2366
• Crisis Care
(08) 9223 1111 or 1800 199 008 • Gay and Lesbian Community Services’
Counselling and Info Line – (08) 9420 7201
or 1800 184 527
05
DEALING WITH THE POLICE
When dealing with the police it is important to - take a breath test if they ask you to (it is
know your rights and to assert them calmly an offence to refuse);
and politely.
• Police may ask you your name, address,
It is also important to avoid confrontation with the date of birth and ask you to show evidence
police, as this may often work against you. Be of your age if you are in a pub or on
realistic in the circumstances. licensed premises.
YOUR RIGHTS AND POLICE POWERS • Under the Misuse of Drugs Act the police
may ask you to give information about the
Being stopped by police
manufacture, sale or supply of prohibited
The police have the right to ask for your name and drugs and plants. Failure to cooperate may
address if they believe ‘on reasonable grounds’ be an offence.
you are about to break or have broken the law.
Police can use anything you say to them at any
Therefore you should provide your name and
time in deciding whether to arrest you or charge
address if asked. Refusing or giving an incorrect
you with something. There is no such thing as ‘off
name and address is an offence.
the record’.
If police want you to go with them for questioning,
If police arrest you
you can refuse unless they are arresting you.
Police can only arrest you if they have reasonable
Answering police questions
grounds to believe you have broken the law. They
In most circumstances you are legally obliged to must tell you at the time what you are being
give the police your name and address, but other arrested for. You must be ‘cautioned’ by the police
18 than that you have the right to remain silent. You before they question you formally. This means
can refuse to answer questions asked by police telling you your rights in relation to questioning
whether you have been stopped in the street, and evidence.
been taken to the station for questioning or been
After arresting you, the police can only hold you
arrested. You can refuse to answer any
in custody for a ‘reasonable time’ without
questions or sign any statements until you
charging you. What is ‘reasonable’ depends on
have spoken to a lawyer.
the seriousness of the crime and the
There are some circumstances where you must circumstances. While in custody you can ask to
answer questions asked by police: telephone a friend or relative or a lawyer in
private. This is not a legal right.
• If you are driving, you must:
Formal interviews with police
- give your name and address and the
name and address of the owner of Generally, you have a right to remain silent (see
the vehicle above). If you make a written statement explaining
your version of events or if the police prepare a
- show your driver’s licence or, if you don’t written record of the interview then this will
have it on you, take it to a police station probably be used against you in court. The police
within 48 hours will ask you to sign the record of interview and the
statement. You do not have to sign.
If you do sign you should read the statement R AILWAY P OLICE A ND T RANSIT G UARDS
carefully and correct any mistakes. Even if you do
not sign the record of interview it can be used as Railway police have powers similar to police
evidence in court. You should ask for a copy of officers. They can arrest you or give you
the written record of interview and your statement infringement notices for being drunk, trespassing,
and show them to your lawyer. Anything you say acting violently, offensively or in a way that puts
to the police can also be used in court. others in danger.
If you are under 18, an independent adult person Railway police can remove you from the train for
must be present during the interview. This can be getting in the way of other passengers, destroying
your parent, family member, friend or other person property, causing a disturbance, not paying
independent from the police. correct fares, having an invalid ticket or failing to
give your name and address.
Physical evidence
Fingerprints and other ID Transit guards are not police. They do not have
police powers but will call railway police when
The police can take your fingerprints or needed. Transit guards have the power to check
photograph if you have been arrested. you have a valid ticket, have paid the correct fare
and can issue fines and infringement notices.
Body searches
R EPORTING A C RIME T O P OLICE
A police officer of your gender can do a pat-down
search or a strip search for safety reasons or to The WA Police Service are attempting to improve
get evidence while you are in custody. In regard to attitudes towards the gay, lesbian, bisexual and
transgender or intersex people your ‘legal’ gender transgender community.
would determine the gender of the police officer
legally allowed to body search you. This should be This includes improving police performance and
done with respect for your privacy and dignity. A encouraging members of the community to seek
help from the police. If you are the victim of a
19
physical examination or an internal search of your
body can only be done by a doctor. crime, it is important to report it to the police. You
can also complain about actions the police have
Body samples taken (see below).
Police can only take body samples from you if you The WA Police Service has trained Diversity
have been charged with an offence and it is related Officers in each district to improve
to the crime. (However, if you are the driver of a car communication between minority groups and
police can demand a breath or blood test.) the police. This police officer can also liaise
between victims of crime and investigating
Other searches
officers. If you want to report a crime but are
Police can search your house if they have a worried about dealing with your local police, or if
warrant, but also without a warrant in certain you have reported a crime but are not happy
circumstances. They can usually also search with the response, you can contact the Diversity
your car. Officer in your district.
For more information about police powers

contact Legal Aid WA’s information Line on 1300
650 579 or visit www.legalaid.wa.gov.au
C OMPLAINTS ABOUT P OLICE The Ombudsman can be contacted on
(08) 9220 7555 or 1800 117 000 (Freecall
There are two ways to make a complaint
outside the metropolitan area) A telephone
about the police. You should make your
interpreter service is available on request.
complaint as soon as possible after
the incident. Anti-Discrimination
Where possible you should first try and resolve a If you believe that the police have discriminated
problem by contacting the police. This may be against you, you may be able to lodge a
through contacting the relevant officer, the complaint with the Equal Opportunity
officer in charge of the police station or even the Commission (see the Discrimination section).
Commissioner of Police in writing.
Alternatively you may wish to make a complaint

to the Ombudsman about the conduct of a
police officer. It is helpful if you know the
relevant officer’s full name and/or regimental
number. To make a complaint you should notify
the Ombudsman in writing about your
complaint. The Ombudsman usually asks the
police to investigate the complaint first. The
police will prepare a report and pass their
findings to the Ombudsman for review. If the
Ombudsman approves the report the police will
write to you.
20 If you are unhappy with the findings in the police
report, you can go back to the Ombudsman and
ask for the police report to be reviewed. The
Ombudsman will then decide whether the police
investigation was conducted effectively and
efficiently. If not, the Ombudsman can take over
the investigation.
Any complaint should set out in detail everything

that you say happened. Names and contact
details for any witnesses to the event should
also be provided. Copies of any medical reports
and photographs should be provided as well.
Make sure you keep a copy of your complaint
for your own records.
P R I VA C Y A N D C O N F I D E N T I A L I T Y
I NFORMATION P RIVACY • find out what information an organisation
holds on you and how they manage it.
In general, your sexuality and your relationships
are your own business. In most situations - job If you think your privacy rights have been
applications for example - you are not required to infringed you should attempt to resolve the
disclose your sexual orientation or details about matter with the organisation in question if
your sexual relationships. Forcing you to provide possible. Write a letter or email to the
this information could be unlawful discrimination. organisation, explain the situation and what you
would like to see happen. Give the organisation
There are some exceptions. For example,
an opportunity to rectify the situation, 30 days is
insurance companies may be able to
a reasonable time frame in which they should
discriminate in the terms of insurance on
respond to your initial enquiry.
grounds of age, sex and disability where the
discrimination is based on reliable research If you are not satisfied with the outcome you
about increased risk for some groups of people. can complain to the Office of the Federal
If you are applying for life insurance, you may Privacy Commissioner. For more information on
have to answer questions about your health, your rights and complaints go to
history and activities (including your sexual www.privacy.gov.au
relationships), so that the insurer can assess the
‘SENSITIVE
risk involved. They may also ask similar
I N F O R M AT I O N ’
questions of your partner.
There are specific guidelines that relate to
The Commonwealth Privacy Act gives you rights ‘sensitive information’ – this includes information
in relation to how your personal information is or opinions about a person’s sexuality or sexual
handled by government and many private practices. Organisations must not collect 21
sensitive information unless:
sector organisations.
• the individual has consented
You can:
• the collection is required under law or
• know why your personal information is
• the individual is legally incapable of giving
being collected and how it will be used;
consent and the collection is ‘necessary to
prevent or lessen a serious and imminent
• ask for access to your records, including
threat to the life or health of any individual’.
your health information;
In addition, the Health Privacy Principles relate
• take up opportunities to stop receiving specifically to your health information. This is
direct marketing material; discussed in the Health section.
• correct inaccurate information about you; C ONFIDENTIALITY

• know which organisations will be given your There are particular professional relationships
personal information; that create a legal duty of confidentiality – the
• ensure organisations only use your main examples are the relationship between a
information for purposes they have told doctor and patient, or a lawyer and client.
you about; Anything you tell your doctor or lawyer, or any
knowledge they have about your sexuality, For sperm and tissue donations, you must answer
gender identity, health, medical status, financial similar questions about your own and your
affairs etc. is confidential and should not be partner’s sexual and other activity for the past five
disclosed to anyone without your consent. years. If you answer yes, this does not
However, a doctor can break this confidence if automatically disqualify you from making the
they believe you’re endangering someone else donation but clinics may be reluctant to accept it.
by your actions or endangering your own life. If
There are severe penalties, including fines or
you believe your doctor or lawyer has failed in
imprisonment, for making a false statement.
their obligation to maintain confidentiality, you
can complain to the relevant professional body HIV status
(i.e. Australian Medical Association, Legal
Practice Board) or the Office of Health The issue of confidentiality and disclosure is
Review (see the Health section). complicated in relation to HIV. Generally, your
HIV status is your own business in regard to
You can also take private legal action but you personal relationships. Sometimes you may
should get legal advice first as this will be costly have to disclose your HIV status to some
and time consuming. organisations in some circumstances.
D ISCLOSURE The WA AIDS council can be contacted for

further information (08) 9482 0000.
There is no legal obligation to disclose
your sexuality in most situations, although
COMING OUT
there may be health reasons why you should
tell your doctor something about your Coming out is less of a legal issue than a social
sexual practices. and practical one. It can be an enormous relief
to be able to be open and truthful about our
22 If you are being required to disclose your lives and who we are. It is up to you to choose
who you come out to and when.
sexuality or if you are discriminated against
because of a disclosure, you may be able to Remember, it is very difficult to control the flow
make a complaint of discrimination (see the of information once you start coming out. Think
Discrimination section). carefully about who you tell and make it clear
whether you want your sexuality or gender
However, disclosure is required if you wish to identity to be common knowledge. Even if you
ask someone to keep it confidential, it would be
donate blood, organs or sperm.
extremely difficult to enforce any legal
obligation. If you experience discrimination or
Under health laws for blood donations, you must
violence because you have come out, you can
answer questions about your health, sexual take legal action (see the Discrimination and
activity and other personal details in the past 12 Violence sections). Assistance with making
months. This includes whether you have had decisions about coming out can be sought
male-to-male sex, had sex with a man you from Gay and Lesbian Community Services’
Counselling and Info Line on (08) 9420 7201
suspect of being bisexual, had sex with or
or 1800 184 527 (Freecall).
worked as a sex worker, used injecting drugs or
been in prison. If you answer yes, current policy
is that you will probably not be allowed to
donate blood.
SEX AND SEXUAL OFFENCES

C ONSENTING T O S EX However, if you gave consent AND they are
no more than 3 years older than you AND
Who you have sex with is a matter of believed you were 16 or older at the time,
personal choice, regardless of gender. then they may have a defence to the crime;
Gay sex is not against the law.
• aged 16 or 17 – a person is not allowed
If you want to have sex with someone, you both to have sex with you if you are under their
have to agree (consent) and the law places care, supervision or authority (even if
some restrictions on the age of sexual partners you consent).
(see below).
Having sex with a young person in contravention
‘CONSENT’ of these age restrictions is an offence and can
Consent means ‘free agreement’. A failure to carry a significant jail sentence. (see Sexual
say no cannot be taken as consent. Assault and Rape in the Violence section)
It is not ‘free agreement’ if the person has sex

because they are afraid, asleep, unconscious,
W H AT D O E S T H E
or too drunk or drug affected to agree freely, L AW M E A N B Y S E X ?
or they don’t understand what is happening.
Generally, the law around sex is there to stop
Consent can also be withdrawn at any time.
sexual violence or protect young or other
Having sex with someone without his or her
vulnerable people from being taken advantage
consent is an offence (see Sexual Assault
of. The law can define sex and sexual activity
and Rape).
very broadly depending on the relevant law.
Sometimes sex can specifically mean
Age of consent penetrative sex (i.e. a penis or other object
going into a vagina, anus or other part of a
Generally in Western Australia the age that
someone can legally consent to sex is 16.
body). Other times sexual activity may mean 23
fondling, viewing pornography or taking photos.
The law about under-age sex is the same for all.

It doesn’t matter what sexes and genders the Having sex interstate
people are. If you are: The age of consent for gay sex is different in the
• under 10 – no one is allowed to have sex various states and territories of Australia and is
with you (even if you consent) see Sexual often based on 2 genders only - male and
Assault and Rape in the Violence section); female. The following table summarises the
various ages but most states have a higher age
• between the ages of 10 and 16 – a person of consent in relation to people under your care,
is not allowed to have sex with you. supervision or authority.
AGES OF CONSENT IN AUSTRALIA

State/Territory Gay sex Lesbian sex Straight sex
Western Australia 16 16 16
Northern Territory 18* 16 16
South Australia 17 17 17
Tasmania 17 17 17
Victoria 16 16 16
ACT 16 16 16
New South Wales 16 16 16
Queensland 16 (18 for anal sex) 16 (18 for anal sex) 16 (18 for anal sex)
* NB – The Northern Territory Government has recently said it will change the law to equalise the age of consent to 16 for all.
S EXUAL H ARASSMENT the behaviour also has to be easily seen – if it
‘cannot be seen without the observer having to
‘Sexual harassment’ is unlawful in the
take abnormal or unusual action to observe it’, it
workplace and some other areas (see the
may not be indecent.
Discrimination section).
The definition of a public place is very wide
Sexual harassment in social situations or in
and would include public toilets. Closing the
public is not unlawful in Western Australia,
cubicle door doesn’t necessarily turn a public
unless it is so persistent and intimidating that it
place into a private place.
is seen as ‘stalking’ or sexual assault (see the
Violence section). D I S C R I M I N AT O RY
L AW G O N E ! !
B EATS & S EX I N P UBLIC P LACES
There used to be a specific offence for "gross
‘Indecent acts in a public place’ are an indecency between males in public". Men who
offence under the WA Criminal Code. had sex at beats were often charged with this.
This offence no longer exists as it was
To determine what is either acceptable or considered discriminatory, but there is still the
general offence of committing an indecent act in
indecent sexual behaviour in public the police
public (or, in some cases, in private). This
and courts consider general community means that if you have sex at beats, you could
standards. What is indecent covers more still be charged with a criminal offence.
extreme sexual behaviour than just expressions
of sexuality or affection. It should be applied
equally to all people and if the police charged
you with an ‘indecent act in public’ for holding
24 hands or kissing, they may be unlawfully
discriminating against you, since this behaviour
is generally accepted. You could probably
complain or take action against the police on
this basis (see the Discrimination section and
Complaints About Police in the Dealing with
Police section).
If you have sex in public, you may be charged

with committing an indecent act. Men using
beats can be charged with ‘indecent acts in a
public place’. To prove the offence, the police
have to show that what happened was both
‘indecent’ and in ‘public’.
‘Indecent’ means potentially indecent – an

actual person does not need to have been
offended by your actions. But to be indecent,
R E L AT I O N S H I P R E C O G N I T I O N
There are many federal laws that refer to • the nature and extent of common residence;
different types of relationships. Acts often
• whether there is, or has been, a sexual
have their own definitions of ‘spouse’, ‘de
relationship between them;
facto spouse’, ‘next of kin’, or ‘dependant’.
State law generally has a single ‘de facto • the degree of financial dependence or
partner’ or ‘de facto relationship’ definition. interdependence, and any arrangements for
financial support, between them;
These definitions are used to determine rights and
responsibilities in areas like Centrelink benefits, • the ownership, use and acquisition of
superannuation, inheritances, and so on. their property (including property they
own individually);
W ESTERN A USTRALIAN S TATE L AWS –
"D E FACTO PARTNERS " • the degree of mutual commitment by them
to a shared life;
For the purposes of Western Australian laws –
such as the Family Court Act (WA), the • whether they care for and support children;
Inheritance Act and the Equal Opportunity Act
- the legal terms used to recognise couples in • the reputation, and public aspects, of the
relationships are "de facto partner" and "de relationship between them.
facto relationship". These terms are defined Whether or not a particular relationship is a
by the Interpretation Act (WA) 1984. Wherever "de facto relationship" will be judged on the
a written law of the State Government refers to particular circumstances of that relationship.
a de facto relationship, it means a relationship In 2003, a review of Western Australian laws
(other than a legal marriage) between 2 people gave people in de facto relationships an equal
who live together in a marriage-like standing with married people in most cases. 25
relationship. Where a written law refers to a
"de facto partner" it means a person who lives The rights and responsibilities you may have as
or has lived in a de facto relationship with the a de facto partner are defined under the various
other person. pieces of State legislation – for example, a de
facto partner may be able to challenge a will, or
The definition applies to all couples. It makes no object to a post mortem as senior next of kin.
difference what sex or gender the people are.
This includes gay, lesbian,bisexual, transgender Family law and Relationship Break Ups
and intersex people. The definition still applies if
A mix of WA state law and federal law covers
one or both of the people is married to someone
what happens when a relationship ends and if
else, or in another de facto relationship.
you cannot agree. This covers the care of
What is a de facto relationship? children (see Children and Relationships section)
and the split of property and assets (see the
In deciding whether a de facto relationship Property and Relationships section). You should
exists, the law sets out a number of factors – always get legal advice if you have separated -
• the length of the relationship; or are thinking about separating - from your de
facto partner. You may have certain rights and
• whether the people have resided together; obligations around the future care of children or
property and assets.
Next of kin Immigration
Although next of kin is sometimes defined in Immigration is covered by federal law. It is one
legislation, it is a common law term that has of the few areas of federal law to recognise all
traditionally meant the closest relative by relationships of any sex.
blood or marriage.
Since 1991 an Australian citizen, permanent
The recent law reforms included changes to resident or eligible New Zealand citizen has
‘senior next of kin’ and ‘senior available next been able to use an interdependency visa to
of kin under: bring their same-sex partner into Australia.
However, there is a limited quota for
• the Coroners Act 1996 (WA) – which
interdependency visas each year.
governs objections to post mortems,
Interdependency visas
• the Cremation Act – which covers
objections to cremation; and Your partner can apply for an interdependency
visa from outside or within Australia. Generally
• the Human Tissue and Transplant Act 1982
they will first be granted a temporary visa for up
(WA) – which governs consent to organ
to two years before their application for a
donation after death.
permanent visa will be considered. If you have
De facto partners of any sex are included in the been in the relationship with your partner for five
definitions of next of kin in each Act. If a person years or more at the time of application, there
has a spouse and a de facto partner, priority is are provisions in some cases, to waive the two-
usually given to the person with whom the year wait period before a permanent visa is
deceased was living. A de facto partner will granted. If the application is refused, get advice
generally have priority over other family members. about your appeal rights. If you leave a
26 relationship because of domestic violence, or if
For a discussion of next of kin status and medical your partner dies after you enter Australia, you
treatment see the Health section of this booklet may be able to continue with your permanent
C OMMONWEALTH / F EDERAL L AWS visa application.
Different federal – such as the laws applying Visa criteria

to Centrelink entitlements, taxation, most Immigration law is constantly changing. Always
superannuation legislation and immigration get legal advice. The basic criteria for an
laws – have different definitions that apply interdependency visa currently are:
to relationships.
• both people must be at least 18 at the time
Some laws refer to a "spouse" as being a legally of the application;
married (heterosexual) spouse. If there is no
definition in legislation, then the law assumes a • their relationship must be "genuine
"spouse" to be a legally married spouse. Same- and continuing";
sex couples cannot be legally married under the
• they must have a mutual commitment to a
Marriage Act 1961 (Cth). Some laws include de
shared life to the exclusion of other
facto partners, or people living in a marriage-like
interdependent relationships;
relationship. In most cases under federal law,
this will mean only heterosexual relationships.
• they must live together, or not be living • envelopes with both names at the same
apart on a permanent basis; address and dated postmarks;
• the relationship must have existed for at • at least four statutory declarations from
least 12 months (unless there are other people who can confirm the nature of
compelling and compassionate reasons your relationship.
why the visa should be granted).
Health test waiver
All visa applicants must also meet standard
Of particular relevance to people who are HIV
health criteria and public interest criteria, such
positive is the health test. This test is to prevent
as being ‘of good character’ and not being a risk
people coming into Australia with what the
to national security.
government considers a costly medical
How to prove your relationship condition that will over-use public resources. A
positive HIV result will not necessarily result in
You don’t have to have lived together
the rejection of a visa application, but the result
continuously for 12 months. The permanency
may be reported to a relevant commonwealth or
and genuine nature of the relationship are more
state health agency.
important than permanency of living
arrangements. Refugees
The sorts of things that could be used as Sexuality is an accepted ground of refugee
evidence are: status if the person has a genuine and
reasonable fear that they would be harmed in
• photographs of you and your partner
their country because of their sexuality.
together – in different locations, and
However, the fact that homosexuality is a crime
different seasons;
punishable by imprisonment or other penalty in 27
• letters or emails – to and from each other their country is not a sufficient ground for
and from other people referring to your refugee status unless there is evidence that the
partner or your relationship; law has been or will be enforced.
• travel documents – showing you were in the

same place at the same time;
• legal documents showing joint finances and

commitment – e.g. lease, mortgage,
property title, Will, power of attorney, joint
bank account, utility bills in joint names;
WHERE TO GET HELP

Gay and Lesbian Immigration Task Force Legal Aid WA Information Line
(08) 9306 1126 1300 650 579
TTY 1800 241 216
www.glitf-wa.tripod.com
Refugee Immigration Legal Centre
(03) 9483 1144
09
PARENTING insemination at home using a sperm donor as
an alternative but because these arrangements
B ECOMING A PARENT
are private the law is extremely difficult to
Many people in same sex and alternative enforce. The conception method can also
relationships consider having children. Some determine who the law says the child’s parents
options and their legal implications are are. You should seek legal advice before using
discussed in this section. It is most important this method of conception.
that all parties concerned - those considering
becoming parents and those considering being There are also risks for both the woman and the
a donor - get legal advice before the child is baby in not getting adequate health advice, e.g.
conceived. The way a child is conceived can risk of infection. A doctor can advise you about
make an important difference to the parents’ appropriate timing, pre-pregnancy testing and
rights and responsibilities. testing of the donor for potential transmissible

infections. If you are considering this option you
Reproductive technologies can also contact a support group (see Where to
get help).
In Western Australia, the provision of
reproductive technology is covered by the Adoption
Human Reproductive Technology Act 1991 (WA).
The Act permits the use of reproductive Adoption law is State law (Adoption Act
technology (such as IVF and artificial 1984 (WA)). Singles and couples of any
insemination) by any woman - whether single, sexuality or gender are permitted to adopt in
married or in a de facto relationship with Western Australia. They are assessed under
somebody of any sex. the same terms as other singles and couples.
For couples you normally have to have been in
28 Artificial insemination services are available to all the relationship for at least three years, and not
women, whether or not they are medically infertile. married to or in a de facto relationship with any
other person during that time. Step-parent
Assisted reproductive technology (such as IVF)
adoptions are available to de facto couples
is only available to women who demonstrate
where one member of the couple is the child’s
that they are medically infertile, either by an
birth parent.
infertility evaluation, or where attempts by
artificial insemination or other methods have When an adoption order is made, the child
failed. It is also available to a woman whose becomes a child of the adoptive parents, and is
child would otherwise be likely to be affected by no longer a child of his or her birth parents. A
a genetic abnormality or disease. non-biological parent usually can’t adopt their
partner’s child without the birth parent’s
Self-insemination
consent. If the non birth mother of a child is
Under the Human Reproductive Technology Act recognised as a parent under the Artificial
1991 (WA) it is an offence for a person to cause Conception Act, she cannot adopt the child (as
or permit an "artificial fertilisation procedure" to she is already a parent). The Adoption Act also
be carried out except under a license. The recognises her status as the child’s parent and
penalties specified in the Act include a fine or so her consent to adopting the baby out will
imprisonment. Many people are using self- ordinarily be required.
THE GOOD NEWS… You will also have to decide whether to name
the donor as a parent on the Birth Certificate
Adoptive parents automatically have parental
(see below).
responsibility for a child. Where an adoption
order is made under the Adoption Act in favour
It may be a good idea to make a written
of a same sex couple for example, the child will
have two mothers…or two fathers. agreement between the people involved. It isn’t
legally enforceable, but it is evidence of your
The Birth Mother’s Partner intentions. This may be useful if there are
problems later on. The agreement should be
Where the partner of the child’s birth mother is reviewed as the child grows up.
defined as a parent of the child, then in Western
Australia they have all of the rights and Known Donor can apply for a parenting order
responsibilities of parents that arise under WA
A known sperm donor of the child can apply for
laws (see below for information on some
a parenting order as a ‘person concerned with
relevant federal laws). Where the co-parent is
the care, welfare and development of the child’
not considered legally to be the child’s parent
OR where it is relevant, as the child’s parent.
(under the Artificial Conception Act (WA) - see
(See below for an explanation of parenting
above), they may have limited rights. See
orders.) This might happen because:
discussion below on co-parenting
• the lesbian parents want the donor to have
S PERM D ONORS
recognised decision-making responsibility,
Anonymous Sperm Donor e.g. in relation to medical decisions, or
A sperm donor who donates sperm • the donor is in dispute with the lesbian
anonymously through a fertility treatment clinic parents about involvement and contact with
is not recognised legally as a parent of the child. the child. 29
At present, if the sperm donation has been done
Should we name the known donor on the
through a clinic, the child will not be able to find
Birth Certificate?
out who the donor is. They will have access
only to non-identifying information. It has been Both “parents” are expected to sign a birth
suggested that a change to the law in this area registration form. In some cases, the "parents"
should be considered. Keep informed will be the child’s birth mother and her de facto
partner. In other cases, the "parents" may be
Known Sperm Donor
the birth mother and the known donor. If the
The legal position of a known sperm donor is donor is to be named on the child’s Birth
not clear-cut. However, he has the right to Certificate, he must sign the registration form.
apply for a parenting order (see below). Consider this carefully as there are some legal
consequences (see below). Get legal advice
Before you start trying to conceive, it is very about whether the donor or de facto partner is a
important for everyone involved to think through parent or not.
and discuss issues such as: the level of contact
with the child, financial arrangements, decision- If you decide not to name the donor, you may
making about the child’s upbringing, what will have to give the Registrar of Births, Deaths and
happen in the event of a breakdown in the Marriages a statutory declaration either saying
relationship between the relevant adults and so on. that the father is unknown or explaining the
circumstances. (As self-insemination may be Appeals Tribunal. Alternatively, if you are the
illegal under the Human Reproductive donor and an application for child support is
Technology Act, you may need legal advice on accepted by the Agency, you may lodge an
this.) Note that it is an offence under the Births, appeal in the Family Court.
Deaths and Marriages Registration Act 1998 to
Note that it is an offence under the
make a false or misleading statement in a birth
Social Security Act to make a false or
registration form.
misleading statement.
The Registrar may refuse to issue a Birth
• Passport
Certificate if you say that you have used a
known donor, but not through a clinic, and you A father registered on the Birth Certificate is
do not wish to give the donor’s name. If you required to give his consent (by signing the
have conceived through a donor program run by application) before the child can get a passport.
a clinic, you can give the Registrar a letter from
the clinic to prove that there is no legal father. L IVING W ITH O R PARENTING C HILDREN
For more information, contact the Registry of Gay men, lesbians, bisexuals and transgender
Births, Deaths and Marriages on (08) 9264 1555. people live with and parent children in many
situations. Legal rights and responsibilities in
Consequences of naming the known donor relation to those children can be complex,
as the father on Birth Certificate particularly if they are conceived using
reproductive technology or self-insemination.
As a parent on the birth certificate a known
donor will probably be liable for child support. This is a new area of law that is still developing
This will only be needed if you cannot agree and many of the issues haven’t been fully tested
on financial support. in court. The law in Western Australia is a
30 complex mix of state and federal laws.
• Paternity for inheritance purposes
The following information should not be relied
Naming a known donor on the Birth Certificate on as legal advice about your particular case.
automatically establishes kinship. The same
Parental responsibility
outcome can be achieved if the donor names
the child as beneficiary in his Will. The Family Court Act 1997 (WA) applies in WA
where the parents of a child were never married.
See the Death and Inheritance section for
The Act says that both parents of a child have
information about inheritance rights.
responsibility for their care, welfare and
• Social security development – regardless of whether they are
married, separated or have never lived together.
Centrelink policy is that the biological mother The term ‘parent’ is used throughout the Act,
is not eligible for social security benefits and includes a person who is a parent under the
unless she first tries to get child support from Artificial Conception Act. The Act stresses
the father named on the Birth Certificate. If children’s rights and best interests, NOT
they insist on this, even after you tell them that parents’ rights. The interests of the child are
the child was conceived through artificial "paramount" in the Family Court’s decisions
conception, you can appeal to an authorised about parenting and contact arrangements.
review officer and then the Social Security Unless it is not in their best interests, children
have a right to know and be cared for by their steps you and your partner can take to clarify and
parents and a right to have regular contact with strengthen the legal position of the co-parent.
their parents and other ‘significant’ people.
1. Parenting agreement
Who is considered a ‘parent’?
You can make an agreement that sets out such
If a woman has a child using reproductive things as:
technology then under Western Australian law,
• intention to share parenting,
the parents of a child are defined in part in the
Artificial Conception Act 1985 (WA). Under • how you will care for the child financially,
federal laws (such as the Child Support Act, and
the Family Law Act) a non birth mother may not • the role of the sperm donor.
be recognised as a parent.
This agreement is not legally binding, but it is
Mothers: Where a woman who is in a de facto evidence of intention. The agreement should be
relationship with another woman undergoes, reviewed as the child grows up.
with her partner’s consent, an artificial
2. Parenting order
fertilisation procedure, both women are defined
as a child’s parents. For the purposes of federal You can formalise your agreement and give the
laws (such as the Child Support Act, and the non-biological parent ‘parental responsibilities’
Family Law Act which applies to children outside through a parenting order made by the Family
of Western Australia), the non birth mother may Court (see Court Orders below). This allows a
not be recognised as a parent. non-biological parent to have legally recognised
decision-making rights in relation to the child.
Donors / Fathers: With sperm donors, it depends
Family Court orders can be changed if
on the situation as discussed above. Where a
circumstances change. You will be required to
man (who is not the woman’s partner) donates
sperm used in an artificial fertilisation procedure in
serve a copy of the application on the donor if
he is a parent of the child (and in some cases,
31
a clinic, he is not the father of the child. If a
even if he is not). It may help your case if you
known donor is named on the birth certificate then
include an affidavit from him saying that he
he is considered a a parent.
supports the application. The court will consider
The law in this area is quite technical – the whether you are in a stable and committed
definition applies only if the women are in a "de relationship and whether it is in the child’s ‘best
facto relationship" (see the Relationships interests’ (see Court Orders below). The court
section) and if the method of conception meets may ask a counsellor to prepare a family report
the definition of "artificial conception to help them make a decision.
procedures" in the Human Reproductive
3. Make a Will
Technology Act. However, there are practical
steps that birth mothers, non-biological parents If the birth mother’s partner wants their child to
and known sperm donors can take to clarify inherit their property after they die, the partner
their roles and strengthen their legal position. must make a Will naming the child as a
These issues are discussed above and below. beneficiary if they are not the child’s parent. This
is because the law doesn’t consider the co-
Co-Parenting – caring for your
parent to have a kinship relationship with the
partner’s children
child. They should get advice and have the Will
The following discussion applies where the co- drafted properly, to avoid it being challenged in
parent is not a legal parent of the child. There are Court. (see Death and Inheritance section)
4. Testamentary guardianship down. The Family Court has counselling and
mediation services that can help you reach
The biological parent can name the other parent
agreement. Legal Aid also runs a mediation
as guardian of the child in their Will. This means
program, and private mediation services are
that if the biological parent dies, there are clear
available. An agreement can be made
instructions about who should have
informally, with no court involvement. If you want
responsibility for the child. Although this is
your agreement to be legally binding, you can
important, it will only have effect if no other
ask the Family Court to make consent orders.
person has parental responsibility for the child at
the time of the biological mother’s death. You’ll need help from a lawyer to do this.
If there is a dispute about guardianship, the If you can’t agree – residence and
Family Court can be asked to make a parenting contact disputes
order. The court would consider the child’s best
You can apply to the Family Court for a
interests and look at:
parenting order (see below).
• the previous relationships between the child
If you can’t agree – financial support
and the relevant adults, including what kind
for children
of role they’ve had in the child’s life,
Watch This Space...
• what the biological parent wanted,
There are several possible places where financial
• what the child wants, if they are old enough.
support for a child may be dealt with. The law is
Dispute with the biological parent complex and largely untested. You should
always seek legal advice.
If a couple separates, a co-parent can apply to
32 the Family Court for a parenting order as a • Child Support
‘person concerned with the care, welfare and
In cases heard in the Eastern States, the Family
development of the child’ or as a parent, where
Court decided that:
this is the case. There have been very few
cases, so it is hard to predict the outcome. - in a case of artificial insemination
Get legal advice. conducted at home, a non biological
mother and sperm donor (who was not
S EPARATION A ND D ISPUTES
married to, or a de facto partner of the birth
The Family Court Act (a WA law) covers mother) were not recognised as parents of
disputes in relation to children under the age the child – irrespective of their private
of 18 whose parents were never married. The agreement. The donor was not liable for
Family Court Act in some cases also covers child support; and
property disputes between couples in same
- in a 2003 case where a child was
sex de facto relationships.
conceived by sexual intercourse between
Try to reach agreement first the sperm donor and the child’s lesbian
birth mother, the donor was liable for child
Under the Family Court Act people are
support even though the lesbian couple had
encouraged to reach agreement about what
agreed that he would have no contact with,
happens to children if the relationship breaks
or be financially responsible for the child. C OURT O RDERS - PARENTING

(In some cases, a mother may be required
There are four types of parenting order:
by law to apply for child support even if she
does not wish to). • Residence order – who the child will
live with.
A non-biological parent with whom the child lives
after separation can apply for child support • Contact order – what contact the child will
payments from the biological parent through the have with a parent or other significant person.
Child Support Agency. But if the child lives with the
biological parent, it would seem the non biological • Specific issues order – any other aspect
parent can’t be ordered to pay Child Support by of day-to-day or long-term parental
the Agency because they aren’t considered to be a responsibility, e.g. religion, medical
‘parent’ legally under this federal law. treatment, education, extra-
curricular activities.
There are technical differences between the law in
WA and elsewhere in Australia that may mean • Child Maintenance order.
these cases don’t directly apply. Get Legal advice
Who can apply for a parenting order?
• Child maintenance
An application can be made by a child’s parents,
Under the WA Family Court Act, where the Child or anyone ‘concerned with the care, welfare and
Support Act (Cth) doesn’t otherwise apply, the development of the child’. This can include the
"parents" of a child may be required to pay child mother’s partner, or a known sperm donor.
maintenance. This legislation is untested.
How the court makes its decision
• Civil courts
The court’s decision is based on ‘the best
It may also be possible for both donors and non- interests of the child’. The factors a court must 33
biological parents to sue (or be sued as) a person consider include:
who agrees to financially support a child before it
• the child’s relationship with each parent and
is born, but then backs away from this agreement.
any other significant adult (e.g. who has
In a 1995 case the NSW Supreme Court said that
been the primary carer?),
because the non-biological mother agreed to
support the children, was involved in the act of • the capacity of each parent to provide for
conception and was a parent to the children, she the financial, emotional and intellectual
must continue to support them even though the needs of the child,
mothers had split up. In this case it was significant
• any family violence affecting the child,
that the non-biological mother had the financial
capacity to do so. • significant cultural issues – including the
need to maintain ties with a child’s
This is an expensive option, and has not been
cultural heritage;
tested in the Supreme Court of Western Australia.
• the current living arrangements and
likely effect on the child of a change,
• the child’s wishes – depending on

their maturity.
Given the diversity of families that might be
created through artificial insemination and
that the law is so new outcomes are difficult
to predict.
Relevance of parent’s sexual orientation
A parent’s sexual orientation is not relevant

unless the court believes in the particular case
that it will affect the best interests of the child.
The court is more concerned about who the
primary carer has been and what the child’s
relationship with each parent has been.
However, judges vary and sometimes the sexual
orientation of a parent becomes a factor. If your
sexual orientation becomes an issue in the
Family Court, you should get advice about how
to present evidence to the Court about it.

Legal Aid WA Family Planning WA Telephone
Information Service
Child Support Legal Unit 9261 6222
Information line 1300 650 579 70 Roe Street Northbridge WA 6865
34 Mediation service (conferencing) 1300 650 579 (08) 9227 6177 or 1800 198 205 (country callers)
Genesis Inc (Infertility) Infertility support group
PO Box 1469 Morley Business Centre
Child Support Agency
MORLEY 6943
13 12 72 (08) 9375 7572
Centrelink Family Assistance Office Donor Conception Support Group
13 61 50 National: PO Box 53 Georges Hall NSW 2198
Family Court of WA (08) 9313 8259
(08) 9224 8222 (enquiries) Alternative Families Australia Web

resources for gay, lesbian, transgendered and
www.familycourt.wa.gov.au
bisexual parents
Lesbian Maybe Baby Australia
www.alternativefamilies.bizland.com
Information for gay men and lesbians wanting to
become parents Talking Turkey: A Legal Guide to Self-
Insemination
www.clubs.yahoo.com/clubs/lesbianmay- www.glrl.org.au (follow links to Discussion
bebabyaustralia papers/Parenting and families)
WA Reproductive Technology Council
http://wwwvet.murdoch.edu.au/RTC/rtchome.html
189 Royal Street East Perth WA 6004

Tel 9222 4307
P R O P E R T Y A N D R E L AT I O N S H I P S
The law categorises property into: site: http://www.dtf.wa.gov.au (follow the link to
the Office of State Revenue).
• real estate - which means land or buildings and
Bank accounts
• personal property - which covers everything else.
You can open a joint bank account. This means
O WNING P ROPERTY T OGETHER
that the money in it will be jointly owned by you
Real estate both. If one dies, the other automatically owns
all the money in the account. This is helpful if
If you buy real estate with your partner, you can the person dies without a Will.
both have your names on the property title. You
need to decide whether you will own the property: Personal Property
• as joint tenants– this means that you both Personal property is often a more difficult area.
own the whole property. It can only be sold This is partly because ownership of personal
as a whole and if you separate you’ll need property is more difficult to prove. One way is
to reach agreement about how it is divided to look at whose name is on the purchase
up (see below). If one of you dies, the document or receipt. Nevertheless, this isn’t
survivor owns both shares of the land conclusive as it may have been a joint purchase.
automatically, whether or not the person
S EPARATION A ND D IVISION O F
who died had a Will.
P ROPERTY – W HO GETS WHAT
OR
Property agreements
• as tenants in common – this means that
You can make an agreement that details the
you own separate shares in the property,
financial and property arrangements between 35
which could be 50/50 or an unequal
you. This can be done at the time the property is
percentage. You can each deal separately
purchased. Get legal help to write the
with your share by selling it to someone
agreement as whether or not it will stand up in
else. If one of you dies, their share is
court will depend on the way it is written, the
passed on according to their Will or the
processes you go through before signing it, and
rules of intestacy (see Death and
the circumstances of your relationship. You may
Inheritance section).
have to pay stamp duty on the agreement.
If one partner already owns property and the
Although making an agreement will cost you
other buys in later
money, it may save you money in legal fees in the
Sometimes one partner moves into a house the long run if there is a dispute later. The agreement
other person already owns and they decide they should be reviewed every few years or so and
want to own the house jointly. De facto partners updated to reflect any changed circumstances.
of two years or more no longer have to pay
In any case, keep detailed records of the
normal stamp duty on the transfer of the title
financial contributions you make, not only to the
from one name into both names in some
purchase, but also to maintenance and repairs.
circumstances. Further information is available
If you want a court to enforce the agreement, it’s
on the Department of Treasury and Finance web
important to show good faith by doing what you
agree to, e.g. if you say you will make certain • where the partner applying to the court
payments in return for a share of property, then has made substantial contributions to the
you should make those payments. property, or the family (that is, the family
made up of the de facto partners and
Personal Property
any child of theirs) and would suffer
If you’re having trouble sorting out who gets serious injustice.
what, make a list of your personal property, then
You should seek legal advice before making an
talk about what each person gets. You may
application to the court and before settling your
choose to go through any disputed items,
financial issues. There is no standard legal
alternating between each of you picking one
formula for who gets what share, but the Family
item at a time. This allows you to focus on
Court takes into account more than just financial
personal as well as monetary value.
contributions to the property. Some of the other
Disputes things taken into account include:
If you can’t agree on what should happen with 1. non financial contributions to the property;
your shared property (either because you don’t
2. contributions made to the family unit;
have a property agreement or because one
person doesn’t want to stick to the agreement), 3. the income, property and financial
you will need to negotiate a settlement. You may resources of each of the parties, and their
need legal help or choose to go to mediation. capacity for employment;
• De facto relationships ending after 4. whether either partner has the care and
1 December 2002 control of a child of the relationship under
the age of 18 years;
If you are in a de facto relationship (see
36 Relationships section for a definition), and you 5. if either party is later living with someone
separated after 1 December 2002, you may be else, the financial circumstances relating to
able to apply to the Family Court (WA) to have why they are living together;
your property divided.
6. the need to protect one party’s role as
Ordinarily, you will need to have been in a de a parent;
facto relationship for at least two years, AND
7. the duration of the relationship and the
one or both of you must be a resident in
extent to which it may have affected the
Western Australia on the day the application is
earning capacity of one of the partners;
made AND both of you must normally have
resided in Western Australia for at least one third 8. the terms of any "financial agreement" (that
of the duration of your relationship. is, a financial agreement made under the
Family Court Act).
In some cases the court can waive the two-year
requirement – such as Stamp duty - If you have a maintenance
agreement or Family Court order that says you
• where a child of the de facto relationship
need to transfer the ownership of real estate or
who is under the age of 18 years, or the
a registered vehicle then you do not have to pay
partner looking after the child would
normal rates of stamp duty.
otherwise suffer serious injustice, or
• De facto relationships ending before 1 The factors that the court looks at in
December 2002 determining financial support include those
listed at points 3 to 8 above.
If your relationship ended before 1 December
2002 (or it has ended since then but you had been D ON ’ T DELAY - T IME LIMITS
living together for less than two years and none of
The time limit for making an application to the
the exceptions listed above apply) you can still
Family Court for property settlement or partner
take court action – but you would have to rely on
maintenance is 12 months from when the
normal rules of property ownership, contract law
relationship ended. This can be extended by the
and common law principles of equity. This can be
court on the ground of hardship, but extensions
quite slow and expensive and the outcome can be
of time are not easy to get.
unpredictable. It is best to get legal advice about
your particular situation. The time limit for couples separating before 1
December 2002 to make an application to other
Partner maintenance
courts varies depending on the nature of your
Some de facto partners may be entitled claim. You should seek advice as early as
to financial support from their partner possible, as in most cases the court is not able
after separation. to extend the time limit.
A de facto partner is liable to maintain the other

de facto partner, only where the partner seeking
maintenance is unable to support himself or
herself adequately
(a) because they have the care and control of a

child of the de facto relationship who has not 37
attained the age of 18 years;
(b) by reason of age or physical or mental

incapacity for appropriate employment;
(c) for any other reason.
If a person satisfies these criteria, their partner

will be required to support them to the extent
that they are reasonably able to do so.

Family Court of WA Legal Aid WA
(08) 9224 8222 (enquiries) Information line 1300 650 579
Mediation service (conferencing) 1300 650 579
www.familycourt.wa.gov.au
Relationships Australia (WA)
For mediation and relationship counselling
1300 364 277

11
WORK AND MONEY entitled to take parental leave for the birth
of a child . This also includes the adoption
E MPLOYMENT
of a child by the employee and their partner.
Conditions of Employment
• Personal/carer’s leave – Employees are
A State Award, Federal Award, order, Federal or entitled to take carer’s leave to care for a
State Workplace Agreement, Employer- partner, member of the family or household
Employee Agreement or a written contract of who is sick or injured.
employment may cover the conditions of your
• Bereavement Leave – All employees are
job. You need to check both your award and
entitled to take special leave on the death
any individual contract or agreement to work out
of their partner.
your entitlements. Some agreements or
contracts may have better conditions or • Some jobs may offer other entitlements,
entitlements and may recognise relationships such as relocation expenses, travel for
between people of any sex. partners or health benefits. These extra
benefits are not covered by the Act and you
Employees in Western Australia are entitled to
need to check your employment
minimum conditions of employment as set out in
arrangement or agreement. You may be
the Minimum Conditions of Employment Act
able to negotiate these extra benefits with
1993 (WA) ("the Act").
your employer. Employers must not
The minimum conditions cover all employers discriminate in offering these benefits to
and employees, on State Awards, State one group of employees and not another.
Enterprise Agreements, Employer-Employee
State Workplace Agreements
Agreements and Contracts of Employment.
If a provision in an arrangement or agreement State Workplace Agreements are currently being
38 says it excludes the minimum conditions, you phased out. All State Workplace Agreements
should get legal advice to determine its effect will cease by 14 September 2003. This means
on your entitlements. you will usually be covered by one of the other
awards, contracts, or agreements outlined
Important Note: The Minimum Conditions of
above. If you were employed under a State
Employment Act 1993 (WA) does not apply to
Workplace Agreement you should find out your
Federal Awards, Federal Certified Agreements
new conditions of employment. Employees who
or to Federal Workplace Agreements. If a
had a state workplace agreement but are
Federal Award, Federal Certified Agreement or
covered by a Federal Award will not be entitled
a Federal Workplace Agreement covers your
to the minimum conditions and protections
employment, you need to check both to work
contained in the State Act (outlined above).
out your entitlements.
Upon the expiry of their workplace agreement
Employee Benefits the Federal Award applies.
Leave is a core entitlement of employees.

New laws mean employees in a de facto
relationship can now get the same benefits
as other employees.
• Parental Leave – An employee who is in a

relationship with somebody of any sex is
WHERE TO GET HELP

Union Department of Employment and
Contact your union first if you are a member. Workplace Relations
Department of Consumer and Wagenet
Employment Protection Federal Awards and Agreements
Wageline
www.dewr.gov.au
Federal and State Awards
Office of the Employment Advocate
1300 655 266
Australian Workplace Agreements (Federal)
www.docep.wa.gov.au
1300 366 632
Employment Law Centre
www.oea.gov.au
(08) 9271 7899 or 1300 130 956
Termination of Employment circumstances. A claim for unfair dismissal is

made on the basis that your dismissal was
If your employment has been terminated
harsh, unfair or oppressive. If you believe that
because of your sexual preference you may
you were sacked because of your sexual
have an unlawful or unfair dismissal claim and a
preference or gender history this may be
discrimination claim. Employers must abide by
considered harsh, unfair or oppressive.
various pieces of industrial legislation as well as
anti-discrimination laws. You should seek legal advice as to where you
should lodge your claim.
If your employment is terminated and you think
you have a case, get legal advice urgently to Time Limits
know what your options are. There are time
limits for these types of claims. (See the
You must lodge an unlawful termination form in 39
the Australian Industrial Relations Commission
Discrimination section)
within 21 days after the day of the dismissal.
Unlawful Terminations
You must lodge an unfair dismissal form:
Federal law makes it unlawful for an employer to
• in the Australian Industrial Relations
sack you on the grounds of sexual preference.
Commission within 21 days after the day of
Most employees can make a claim based on an
the dismissal;
alleged termination on the ground of sexual
preference. Some classes of employees are • in the Western Australian Industrial
excluded and you will need to check to see if Relations Commission within 28 days
you fall into one of these categories. after the day of the dismissal.
A claim for unlawful termination is lodged in the In some circumstances the time limits can be
Australian Industrial Relations Commission. extended and if you are outside these time limits
you should seek legal advice immediately.
Unfair Dismissal
Lodge your claim if you are unable to get
A claim for unfair dismissal can be made in
advice before the time limit expires. It can be
either the Western Australian Industrial Relations
withdrawn later.
Commission or the Australian Industrial
Relations Commission depending on your
Discrimination member’s death to surviving dependents.
Recent changes to the law have now made it Who can benefit from your superannuation?
unlawful to discriminate against a person on
The following list includes people who may benefit
the ground of their sexual orientation or gender
from your superannuation after you die:
history in the workplace. Discrimination in
employment is unlawful and includes contract • Your spouse (or de facto spouse of the
for service, casual employment, commission opposite sex only – see exception below if
agents, contract workers, partnerships of 6 or you are a State Public Sector employee);
more persons, membership of employee or
employer organisations, qualifying bodies, and • Your children;
employment agencies. • Your dependents;
If you believe that you were sacked because of • Your nominated beneficiary (including your
your sexual preference you may have a claim partner of any sex);
for discrimination. A claim for discrimination is
lodged in the West Australian Equal • Your estate.
Opportunity Commission.
You need to check the terms of your
Your complaint must be lodged within 12 superannuation policy and seek specialised advice
months of the last act of discrimination. In about the benefits and the persons who can
some circumstances you may be permitted to benefit upon your death. Different types of funds
lodge your complaint outside of the time limit. have different rules about payments of death
(see Discrimination section) benefits.
You should seek legal advice about your claim. Tax on Super
40 S UPERANNUATION Superannuation death benefits are taxable.
Superannuation is controlled and administered State Public Sector Employees

by federal legislation. State public sector
Changes to the law mean that your partner of any
superannuation is governed by separate
sex can benefit from your superannuation when
state legislation.
you die. Death benefits are generally paid to the
What superannuation death benefits can executor or administrator of the deceased’s estate.
be paid? However, some schemes will permit payment of a
sum to a spouse, de facto partner (of any sex),
Superannuation funds can pay lump sums,
relative or dependant in order to
annuities or reversionary pensions on the
WHERE TO GET HELP

Union Equal Opportunity Commission
Contact your union first if you are a member. Information and Assistance
Department of Consumer and 1800 198 149
Employment Protection
www.equalopportunity.wa.gov.au
Wageline
1300 655 266 Legal Aid
1300 650 579
www.docep.wa.gov.au
relieve or avoid hardship. Certain requirements specialised advice about the benefits and the
are required to be met before a payment can be persons who can benefit upon your death.
made. You should contact your superannuation
TAXATION
fund, check your policy and seek specialised
advice about the benefits and the persons who Income taxation is covered by Federal law and
can benefit upon your death. only recognises opposite sex couples.
Where to get help The dependent spouse rebate is only available

ATO Super Helpline: 13 10 20 to opposite sex partners. This is also true for
any other tax concession, such as the
www.ato.gov.au/super
concession for superannuation contributions for
a dependent spouse.
S U P E R A N N U AT I O N
COMPLAINTS S OCIAL S ECURITY
TRIBUNAL
The Social Security Act 1991 is a federal law and
The Tribunal is an independent body
requires that a person must be in a relationship
established to assist members or beneficiaries
to resolve complaints about unreasonable or with a person of the opposite sex and be
unfair decisions or conduct of a Trustee. You married or in a marriage-like relationship to be a
must try to resolve the problem with the fund member of a couple.
before lodging a formal complaint with the
Tribunal. There are time limits for lodging a This means that when Centrelink calculates your
complaint with the Tribunal. For further benefits, it will only take your partner’s income
information call 1300 884 114.
into account if they are the opposite sex.
L IFE I NSURANCE If you have a person under the age of 16 living

with you, even if you are not the biological 41
Life insurance is covered by federal law and only parent, you may be able to get a supporting
recognises opposite sex couples. However, parent benefit. You will need to provide the
some companies do still recognise couples of necessary details of your relationship with the
any sex. child and provide supporting documentation if
requested. Each case is assessed on its merits.
Generally, you need what is called probate or
administration (see the Death and Inheritance If you are a student, living in a same-sex
section for an explanation of these terms) to relationship is not proof of "independence" for
allow money from a policy to be distributed. youth allowance, unlike a heterosexual relationship.
There are exceptions to this. You need to check
the terms of your life insurance policy and seek
WHERE TO GET HELP

Welfare Rights & Advocacy Centre Sussex St Community Legal Service (East
Victoria Park)
(08) 9328 1751
(08) 9470-2676
www.wraswa.org.au
Community Legal & Advocacy
Centre (Fremantle)
(08) 9432-9790
12
H E A LT H been breached you may choose to do one
of the following:
PRIVACY OF YOUR
HEALTH INFORMATION • contact the Patient Representative;
Your health information should not be disclosed to • make a complaint to the health
any other party, including your de facto partner, care provider;
without your consent. Heath information can be
conveyed between doctors treating you, where • make a complaint to the Equal Opportunity
the health information is expressly related to a Commission (See Discrimination section).
treatment process that you are engaged in.
Your partner, as a patient, may also choose to
Sometimes a health care provider may be required make a complaint to the Office of Health Review.
to release your information. Examples of where
HOSPITAL VISITING
this may occur are:
Restrictions on hospital visiting vary with the
• reporting a notifiable disease (eg HIV) under
seriousness of the illness. Decisions about who
the Health Act 1911;
can visit are a matter of hospital policy.
• where it is in the public interest to do so.
The approach varies from hospital to hospital
If a breach of confidentiality has occurred you may and ward to ward. In practice, few hospital staff
choose to do one of the following: will deny access to a partner. If you are being
denied access to your partner in a public
• contact the Patient Representative hospital you can contact
(employed as an advocate for patients);
• Nurse Manager or
• make a complaint to the health
care provider; • the Patient Representative
42 • make a complaint to the Office of Your partner may wish to complain to the
Health Review; Office of Health Review. Denying access
may amount to unlawful discrimination
• if a private or commonwealth health service (See Discrimination section).
provider is involved complain to the Federal
Privacy Commissioner. However, the Access To Your Health Information
Commissioner will require you to complain
State Government health care providers
to the health service provider first.
Complaints to the Commissioner must be The health care provider may provide you with
made within 12 months of the breach; the information you want following a verbal or
written request.
• consult a lawyer as breach of confidence
may provide a basis for legal action. The Freedom of Information Act 1992 (WA)
provides an avenue for obtaining your records
Involvement in health decision making when
from State Government agencies.
your de facto partner is hospitalised
If you are unable to access the information you
Every patient has a right to confidentiality. It is
require by request you can complete a Freedom
usual, however, with the patient's consent, for
of Information application. This should be
partners to be informed about health care
available from the service provider.
decisions for their de facto spouse in hospital.
In some situations the Act permits information to
If you believe that you are being excluded
be withheld. If you are refused information there is
without good reason or your confidentiality has
an appeal process. Contact the Freedom of Consent may not be given or withheld on another
Information Commissioner. person's behalf, including a de facto partner's
behalf, unless a guardian has been appointed.
Private health service providers and
commonwealth agencies Next Of Kin
The health care provider should provide you with A person is free to decide who they wish to be
access to your own health records. their next of kin for the purposes of health care
services. The next of kin must be respected as
The Federal Privacy Act 1988 provides that
such by health care providers and involved in
• you should be able to have access to decision making as agreed by the patient.
information held by private health providers
A partner of any sex can be appointed as a next
about you on request. There may be
of kin. (see the Relationships section)
exceptions to this. For example if it is
believed that having the information would DISCRIMINATION
create a serious risk to your health.
Sexual Orientation
• if you are refused access to your
It is unlawful to discriminate against someone on
information you can complain to the service
the basis of their sexual orientation when
provider. If the issue is not resolved the
providing goods and services. This includes
Federal Privacy Commissioner can
medical treatment and other health services.(See
investigate the complaint if you notify them
the Discrimination section)
within 12 months of the refusal.
HIV/AIDS
The Commonwealth Freedom of Information Act
provides an avenue for accessing information from It is unlawful to discriminate against someone on
Commonwealth Government Agencies. Requests the basis of their HIV status, in employment,
should be made in writing to the relevant Minister
or Agency.
education, accommodation, the provision of 43
goods and services, clubs and their membership
and sport. (See the Discrimination section)
Consent To Medical Treatment
Health Complaints Process
Any individual may consent or withhold consent
to medical treatment. To be valid, consent must If you are unhappy with how you have been
be given freely, and should be 'informed'. This treated by a medical practitioner, a hospital or
means you must have a full understanding of other health service provider, you can make a
what is being proposed. 'Informed consent' can complaint to the Office of Health Review.
only be given by someone who is capable of
forming that understanding.

The Office of Health Review Office of the Public Advocate
Level 12, St Martin's Tower Level 1 Hyatt Centre 30 Terrace Road
44 St Georges Terrace Perth WA 6000 East Perth WA 6004
(08) 9323 0600 (08) 9278 7300

Office of the Information Commissioner Country Callers 1800 807 437
Level 21 Exchange Plaza
2 The Esplanade Perth WA 6000 Office of the Federal Privacy Commissioner
(08) 9220 7888 Hotline 1300 363 992
Country callers 1800 621 244 www.privacy.gov.au

13
D E AT H A N D I N H E R I T A N C E
There are many legal issues that can arise If there is a Will
following the death of a partner. It is not
When a person dies and leaves a Will, the
possible to cover all the possibilities in a
executor named in the Will must apply to
publication like this. The following information is
Supreme Court for a grant of probate. A grant of
an outline of some of the main issues that may
probate is a decision by the Probate Division of
arise following the death of a partner.
the Supreme Court that the Will is properly
W ILLS made and was intended by the testator to be
their last Will and Testament. The application is
A Will is one of the most important documents made on a standard form ("Common Form"),
you will ever sign. A badly written Will often leads and this is available from the Probate Division of
to delays and disputes. The most important the Supreme Court.
reason for making a Will is to make sure that, after
your death, your property is distributed in the way Who has the right to see a Will
you would have wished it to be.
Once there has been a grant of probate you can
If you do not leave a Will, there are laws that get a copy of the Will from the probate registry
cover how your property will be distributed. at the Supreme Court.
There are legal requirements for making a Will. If If there has not been a grant of probate or the
these requirements are not met your Will may person who has the Will is refusing to let you
not be valid. Where possible it is best to obtain see it, you should seek legal advice.
the services of a solicitor rather than drafting
If there isn’t a Will.
your own Will.
When a person dies without leaving a Will they
Some of the issues you will need to consider are
are said to have died intestate.
44 • Who will be the executor? The executor’s
If a person dies intestate the Administration Act
role is to make sure your wishes are carried
1903 (WA) sets out how their assets will be
out. They will list and value your assets, pay
divided. Following changes to Western Australian
debts and make sure your estate is
law de facto partners of any sex now have
distributed to the beneficiaries according to
inheritance rights under the Administration Act.
the terms of your Will.
De facto partners wishing to claim under the
• Property. Your Will should deal with all your
Administration Act 1903 and the Inheritance
property. This may include real estate,
(Family and Dependants Provision) Act 1972 will
money, shares, superannuation and
need to establish that their relationship was a de
personal property. Anything you do not
facto relationship. (see the Relationships section).
cover in your Will is divided among your
relatives according to law. A person who has lived as a de facto partner
with the deceased for at least two years
• If you have children under 18 you may wish
immediately before the death is now entitled to
to appoint someone to be their guardian
a share in the estate in certain circumstances.
after your death. Not all such appointments
This may be the case even if there is a husband
are effective. Get legal advice.
or wife or possibly another de facto who is also
entitled to a share.
If your partner dies intestate, you should seek administration. (Extensions may be granted in
legal advice about your rights. some circumstances).
A person who has lived as a de facto partner De facto partners in this situation should get
with the deceased for less than two years may legal advice.
have a claim under the Inheritance (Family and
Dependants Provision ) Act 1972. See below. C HILDREN
The legal position of any children may be
F UNERAL A RRANGEMENTS
complicated if their parents were not married and
The executor of a Will has the right to make one of the parents dies. In some cases children
funeral arrangements. If you have the right to may be required to prove their relationship to the
arrange a funeral then you can also decide Probate Office. Get legal advice.
where the person is buried.
C HALLENGING A W ILL O R I NTESTACY
You can specify in your Will what sort of funeral
you want, but this is not legally binding. More The Supreme Court can change the way a Will
importantly, it will have no practical effect if the or the Administration Act distributes property if it
funeral is held before the Will is read. Make sure decides that your needs are not properly looked
your executor knows what funeral details you after. This power comes from the Inheritance
have included in your Will. (Family and Dependants Provision ) Act 1972.
Property In Joint Names The Act lists who can make a claim. As a de
facto partner you can make an application if:
If you own property together as ‘joint tenants’
(see Property section for a definition) the • you were living as the de facto partner of
surviving person automatically inherits whether the deceased person immediately before
or not there is a Will. the death; or
• you were receiving or entitled to receive

45
If you own property together as ‘tenants in
common’ (see Property section for a definition) maintenance from the deceased as a former
the deceased can leave their share of the de facto of the deceased as a result of a
property to anyone in their Will. court order, agreement or otherwise.
Shared home owned wholly by the deceased. The court will look at whether the Will or
Administration Act provides adequately for:
Following the death of your partner you may
wish to remain in the home that you shared. • proper maintenance
If the home was your ordinary place of residence • support

and you are entitled to a share of the estate, you • education, or
may have the right to acquire your deceased
partner’s interest in the shared home. Your share • advancement in life.
in the estate may be reduced by the value of the
The court will consider a number of
home or you may have to pay money to the
factors including:
estate if there is a difference.
• how any changes will affect other people
You must take certain legal steps before 12
entitled to a share in the estate
months from the date of the first grant of
• the sort of property involved and it’s value Claims must be made within 12 months of
death. (Extensions may be granted in
• the ages of surviving dependants
some circumstances).
• the way you acted towards the deceased
• The Worker’s Compensation and
and your relationship in general.
Rehabilitation Act 1981 (WA) : When a
You must apply to the Supreme Court within 6 worker dies as a result of an injury or illness
months of; related to their work, surviving dependants
including de facto partners may have a
• the grant of probate of the Will; or claim under the Act.
• the grant of Letters of Administration. • The Criminal Injuries Compensation Act

1985 (WA): Close relatives of someone who
In some circumstances the time for making an
dies as a result of an offence may have a
application may be extended.
claim for loss. A de facto partner who was
You will require legal assistance to challenge a living with the deceased in a relationship for
Will in the Supreme Court. at least two years immediately before the
death is a close relative under the Act.
A family member of the deceased can challenge
a Will or Administration Act provision. This may
affect your rights. If an application is made to
the court, a summons and a copy of the
documents filed will usually be given to each
person whose rights will be affected under the
Will or Administration Act. If you receive a
summons you should get legal advice about
your rights.
46
D EATH C OMPENSATION .
In some situations it may be possible to obtain
compensation following the death of a partner.
Some of the Western Australian Acts that allow for
compensation following the death of a de facto
partner of any sex are discussed below. If your
partner dies and you believe you have a right to
compensation you should seek legal advice.
• The Fatal Accidents Act 1959 (WA): Where a

person’s death is caused by negligence or
fault, family members may, in certain
circumstances, be entitled to sue for the
death of that person. A de facto partner of
the deceased who was living with the
deceased for at least two years immediately
before the death is entitled to claim under
this Act.
NOTES
47
Gay & Lesbian Equality (WA) Inc. (GALE) is Western Australia’s peak gay and lesbian human rights lobby group.
GALE is currently involved in forming a coalition with other state lobby groups to tackle federal laws that deny
gay and lesbian people equal rights. Please join GALE or make a donation to the fighting fund for this and other
gay and lesbian reform issues.
PO Box 420 Northbridge WA

Phone (08) 9487 0862 Email [email protected] Web www.galewa.asn.au
gay and lesbian

community services
of western australia (inc)
Gay and Lesbian Community Service of WA (Inc) is a charitable organisation dedicated to serving the gay and
lesbian community in Western Australia.
Counselling and Information Line (08) 9420 7201

WA Country 1800 184 527 Email [email protected] Web www.glcs.org.au
RESPECTING DIVERSITY
PROUD SPONSORS OF "EQUALITY RULES"
LOOKING FOR SENSIBLE,

COST EFFECTIVE AND
PRACTICAL LEGAL ADVICE?
Slater & Gordon is ready to represent your interests in:
FAMILY LAW: COMMERCIAL / COMPENSATION:
Property disputes GENERAL LITIGATION: Worker’s compensation
Parenting arrangements Local, District & Supreme Medical negligence
Child support Court Litigation Motor vehicle claims
Partner maintenance Dispute Resolution Injuries in public places
EMPLOYMENT LAW: DECEASED ESTATES:

Unfair dismissals Probate
Discrimination Inheritance Disputes
Enduring Powers of Attorney
27-29 St Georges Terrace Perth

Phone 9223 4800 Fax 9223 4850
Web www.slatergordon.com.au Email [email protected]
The Law
There are new laws that affect people of all
sexualities and genders.
Whether you are single or in a relationship you
Can Be A now have new legal rights and obligations.

LEGAL AID WA’s free telephone Information Line
can explain the law around:
Queer Thing · Discrimination

· De facto relationships
· Sexual & violent offences
· Parenting and family law
· Age of consent
· Other legal enquiries
LEGAL AID INFORMATION LINE
1300 650 579

TTY 1800 241 216
w w w. l e g a l a i d . w a . g o v. a u
The information in this booklet should be used as a ACKNOWLEDGEMENTS
GLCS and GALE would like to thank the following individuals and
organisations for their assistance in producing this booklet:
guide only. As with any new laws the way courts,
- Brendon Entrekin
- Christine Kain
police and government departments interpret the law - Clare Littler
- Health Consumers Council of WA
- Jackie Beesley
will change and develop over tine. It should also be - Jodie Cartwright
- Legal Aid WA
- LotteryWest
remembered that Parliament regularly changes the law - Maxine Drake
- Myles Kunzli
- Rebecca Johnston
and readers should check our web site - Slater and Gordon Lawyers
- WA Police Service
- Department of Health and Aged Care
www.equalityrules.info or other sites for updates. - ‘Over the Rainbow’ Project (VIC)

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A GUIDE TO EQUALITY FOR GAY MEN,

LESBIANS AND BISEXUALS UNDER WA LAW

ABOUT EQUALITY RULES

2. This publication is distributed on the terms and understanding that

3. The contents of this publication do not constitute legal advice about

5. The information contained in this booklet is not intended to be a

PO Box 420 Northbridge WA

gay and lesbian

Any parts of this publication may be copied or adapted to meet local

01 TAKING ACTION Discrimination?

- ‘RIGHTS’ And - Get Legal Advice

4>5 6>8 9>13 14>17 18>20 21>22

PARENTING 11 - Hospital Visiting

07 08 - Becoming A Parent 10 WORK AND - Access To Your

23>24 25>27 28>34 35>37 38>41 42>43 44>46

wish to offend people with non-traditional

The law is traditionally based on the notion of

There is discussion in this booklet of the legal

WHERE TO GET HELP OR MORE INFO

• Make a Will. Gay and Lesbian Community Services’

You can get free or cheap legal advice or

WHERE TO GET HELP

M AKE A W ILL make a legal agreement about parenting

• Power of Attorney If someone loses or doesn’t have the capacity to

• Enduring Power of Attorney

An enduring power of attorney is a legal

An enduring power of attorney must be signed

FOR MORE INFO

Freecall (non-metro): 1800 642 777 (08) 9278 7300

Freecall: 1800 807 437

D I S C R I M I N AT I O N more than one attribute. The attributes include

The not so good news… • application forms (requiring information

discrimination in employment. It is also unlawful federal government violated article 26 of the

because of their marital status. Marital status E XCEPTIONS A ND E XEMPTIONS

Gender History Small business

You can make a complaint under the Equal

WHERE TO GET HELP OR MORE INFO

Opportunity Commission Act 1986 (Cth). There

Workplace Relations Act

Under this federal Act it is unlawful to dismiss

You may also have a claim under WA unlawful

You can talk to your union representative.

Award or enterprise agreement

The award or agreement relevant to your job

If the harassment is causing you stress and you

If you or the person you are complaining about

If you have been physically assaulted or

Mandurah - (08) 9535 8263

This also includes any person you have had an

S TALKING mind if you have any doubts about making a

R EPORTING A N A SSAULT T O P OLICE The statement should include all the

What if the police don’t help me, don’t take

If you have any problems with how the police

R ESTRAINING O RDERS - IF THREATS OR

If you are afraid that the assaults and/or

A Restraining Order is a court order designed to

WHERE TO GET HELP OR MORE INFO

For more information about police powers

Alternatively you may wish to make a complaint