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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Statutes Amendment (Gender Identity and Equity)
Bill 2016
A BILL FOR
An Act to amend various Acts to remove discrimination against lesbian, gay,
bisexual, transgender, intersex and queer South Australians.
Contents
Part 2—Amendment of Acts
Interpretation Act 1915
4Amendment of section
4—Interpretation
5Amendment of section 26—Interpretation of
words relating to gender or number
Part 3—Amendment of Correctional
Services Act 1982
7Amendment of section 23—Initial and
periodic assessment of prisoners
8Amendment of section 37—Search of
prisoners
Part 4—Amendment of Criminal Law
Consolidation Act 1935
9Substitution of Part 3 Division
17
81Attempts to procure
abortion
82Procuring drugs etc to cause
abortion
82AMedical
termination of pregnancy
Part 5—Amendment of Criminal Law
(Forensic Procedures) Act 2007
10Amendment of section
3—Interpretation
11Amendment of section 21—Forensic
procedures to be carried out humanely
Part 6—Amendment of Domicile
Act 1980
13Amendment of section 7—Capacity to have
independent domicile
14Amendment of section 8—Domicile of
certain children
Part 7—Amendment of Equal Opportunity
Act 1984
15Amendment of section
5—Interpretation
16Amendment of section 6—Interpretative
provisions
17Substitution of heading to Part
3
Part 3—Prohibition of discrimination on
ground of sex, sexual orientation or gender identity
19Amendment of section 30—Discrimination
against applicants and employees
20Amendment of section 31—Discrimination
against agents and independent contractors
21Amendment of section 32—Discrimination
against contract workers
22Amendment of section 33—Discrimination
within partnerships
23Amendment of section
34—Exemptions
24Amendment of section 35—Discrimination
by associations
25Amendment of section 36—Discrimination
by qualifying bodies
26Amendment of section 37—Discrimination
by educational authorities
27Amendment of section 38—Discrimination
by person disposing of interest in land
28Amendment of section 39—Discrimination
in provision of goods and services
29Amendment of section 40—Discrimination
in relation to accommodation
30Amendment of section
45—Charities
31Amendment of section 47—Measures
intended to achieve equality
32Amendment of section
85Z—Exemptions
Part 8—Amendment of Evidence
Act 1929
Part 9—Amendment of Family
Relationships Act 1975
34Amendment of section
10A—Interpretation
Part 10—Amendment of Guardianship of
Infants Act 1940
Part 11—Amendment of Health
Practitioner Regulation National Law (South Australia)
Act 2010
36Amendment of Schedule 2—Health
Practitioner Regulation National Law
Part 12—Amendment of Landlord and
Tenant Act 1936
Part 13—Amendment of Payroll Tax
Act 2009
38Amendment of section 53—Maternity and
adoption leave
Part 14—Amendment of Settled Estates
Act 1880
39Repeal of sections 48, 49 and 50
Part 15—Amendment of Sexual
Reassignment Act 1988
40Amendment of section
3—Interpretation
Part 16—Amendment of Summary Offences
Act 1953
41Amendment of section 81—Power to search,
examine and take particulars of persons
Part 17—Amendment of Trustee
Act 1936
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Statutes Amendment (Gender Identity and
Equity) Act 2016.
This Act will come into operation on a day to be fixed by
proclamation.
In this Act, a provision under a heading referring to the amendment of a
specified Act amends the Act so specified.
Part 2—Amendment
of Acts Interpretation
Act 1915
4—Amendment
of section 4—Interpretation
(1) Section 4(1)—after the definition of the Gazette, the
Government Gazette or the South Australian Government
Gazette insert:
gender identity means the gender-related identity, appearance
or mannerisms or other gender-related characteristics of a person (whether by
way of medical intervention or not), with or without regard to the
person’s designated sex at birth;
(2) Section 4(1)—before the definition of judge
insert:
intersex status means the status of having physical, hormonal
or genetic features that are—
(a) neither wholly female nor wholly male; or
(b) a combination of female and male; or
(c) neither female nor male;
5—Amendment
of section 26—Interpretation of words relating to gender or
number
(1) Section 26(a) and (ab)—delete paragraphs (a) and (ab) and
substitute:
(a) every word implying a particular gender will be construed as including
every other gender; and
(2) Section 26(d)—delete "in either of those genders or numbers" and
substitute:
implying a particular gender, or indicating a singular or plural
number,
6—Amendment
of section 36A—Gender balance in nomination of persons for appointment to
statutory bodies
(1) Section 36A(5)—before the definition of non-government
entity insert:
man includes a person who identifies himself as a man
regardless of the person's designated sex at birth;
(2) Section 36A(5)—after the definition of non-government
entity insert:
woman includes a person who identifies herself as a woman
regardless of the person's designated sex at birth.
Part 3—Amendment
of Correctional Services
Act 1982
7—Amendment
of section 23—Initial and periodic assessment of
prisoners
(1) Section 23(3)(a)—delete paragraph (a) and substitute:
(a) the age, gender, gender identity, sexuality or sexual identity, and
the social, medical, psychological and vocational background and history, of the
prisoner; and
(2) Section 23(4)—after "subsection (2)" insert:
, including a request that, if practicable, the assessment be made by a
person of the same sex or gender identity as the prisoner
8—Amendment
of section 37—Search of prisoners
(1) Section 37(2)(a)—after "sex" insert:
or gender identity
(2) Section 37—after subsection (2) insert:
(2a) A prisoner may waive the requirement under subsection (2)(a) that
those present during a search (other than a medical practitioner) be of the same
sex or gender identity as the prisoner.
Part 4—Amendment
of Criminal Law Consolidation
Act 1935
9—Substitution
of Part 3 Division 17
Part 3 Division 17—delete Division 17 and substitute:
Division 17—Abortion
81—Attempts to procure
abortion
(1) It is an offence if someone who is pregnant unlawfully takes poison or
another noxious thing, or unlawfully uses an instrument or any other means,
intending to cause a miscarriage.
Maximum penalty: Imprisonment for life.
(2) It is an offence if person A, intending to procure person B to
miscarry (whether B is pregnant or not)—
(a) unlawfully administers to person B, or causes to be taken by person B,
poison or another noxious thing; or
(b) unlawfully uses an instrument or any other means on
person B.
Maximum penalty: Imprisonment for life.
82—Procuring drugs etc to cause
abortion
It is an offence if a person unlawfully supplies or procures poison or
another noxious thing, or an instrument or any other thing, to another knowing
that it is intended to be unlawfully used or employed with intent to procure the
other to miscarry (whether the other person is pregnant or not).
Maximum penalty: Imprisonment for 3 years.
82A—Medical termination of
pregnancy
(1) Despite
anything set out in
section 81
or
82
, but subject to this section, a person is not guilty of an offence under
either of those sections—
(a) if the
pregnancy of a patient is terminated by a legally qualified medical practitioner
in a case where that practitioner and 1 other legally qualified medical
practitioner are of the opinion, formed in good faith after both have personally
examined the patient—
(i) that the
continuance of the pregnancy would involve greater risk to the life of the
patient, or greater risk of injury to the physical or mental health of the
patient, than if the pregnancy were terminated; or
(ii) that there is a substantial risk that, if the pregnancy were not
terminated and the child were born to the patient, the child would suffer from
such physical or mental abnormalities as to be seriously handicapped,
and where the treatment for the termination of the pregnancy is carried out
in a hospital, or a hospital of a class, declared by regulation to be a
prescribed hospital, or a hospital of a prescribed class, for the purposes of
this section; or
(b) if the pregnancy of a patient is terminated by a legally qualified
medical practitioner in a case where that practitioner is of the opinion, formed
in good faith, that the termination is immediately necessary to save the life,
or to prevent grave injury to the physical or mental health, of the
patient.
does not refer or apply to a patient who has not resided in South
Australia for a period of at least 2 months before the termination of the
pregnancy.
(3) In determining whether the continuance of a pregnancy would involve
such risk of injury to the physical or mental health of a patient as is
mentioned in
subsection (1)(a)(i)
, account may be taken of the patient's actual or reasonably foreseeable
environment.
(4) The Governor may make regulations—
(a) for requiring an opinion as referred to in
subsection (1)
to be certified by the legally qualified medical practitioners or
practitioner concerned in such form and at or within such time as may be
prescribed and for requiring the preservation and disposal of any such
certificate made for the purposes of this Act; and
(b) for requiring a legally qualified medical practitioner who terminates
a pregnancy, and the superintendent or manager of the hospital in which the
termination is carried out, to give notice of the termination and such other
information relating to the termination as may be prescribed to the
Director-General of Medical Services; and
(c) for prohibiting the disclosure, except to such persons or for such
purposes as may be prescribed, of notices or information given under the
regulations; and
(d) declaring a particular hospital or a class of hospitals to be a
prescribed hospital or a prescribed class of hospitals for the purposes of this
section; and
(e) for providing for, and prescribing, any penalty, not exceeding $200,
for any contravention of, or failure to comply with, the regulations.
(5) Subject to
subsection (6)
, no person is under a duty, whether by contract or by any statutory or
other legal requirement, to participate in any treatment authorised by this
section to which the person has a conscientious objection (but in any legal
proceedings the burden of proof of conscientious objection rests on the person
claiming to rely on it).
(6) Nothing in
subsection (5)
affects any duty to participate in treatment which is necessary to save
the life, or to prevent grave injury to the physical or mental health, of a
patient.
(7)
Subsection
(1)
does not apply to, or in relation to, a person who, with intent to destroy
the life of a child capable of being born alive, by any wilful act causes such a
child to die before it has an existence independent of its parent where it is
proved that the act which caused the death of the child was not done in good
faith for the purpose only of preserving the life of the parent.
(8) For the purposes of
subsection (7)
, evidence that someone had at any material time been pregnant for a period
of 28 weeks or more is, in the absence of proof to the contrary, proof that the
person was at that time pregnant of a child capable of being born
alive.
(9) For the purposes of
sections 81
and
82
, anything done with intent to procure someone to miscarry is unlawfully
done unless authorised by this section.
Part 5—Amendment
of Criminal Law (Forensic Procedures)
Act 2007
10—Amendment
of section 3—Interpretation
Section 3(1), definition of intrusive forensic procedure,
(a)—delete ", in the case of a female, the breasts" and
substitute:
the breast region of a female person or a transgender or intersex person
who identifies as female
11—Amendment
of section 21—Forensic procedures to be carried out
humanely
(1) Section 21(3)—delete "in the case of a female, the breasts" and
substitute:
or the breast region of a female person or a transgender or intersex person
who identifies as female,
(2) Section 21(3)—delete "the opposite" and substitute:
a different
Part 6—Amendment
of Domicile
Act 1980
Long title—delete "to abolish the dependent domicile of married women
and otherwise"
13—Amendment
of section 7—Capacity to have independent domicile
Section 7(1)—delete "he" wherever occurring and substitute in each
case:
the person
14—Amendment
of section 8—Domicile of certain children
Section 8(3)(a)—delete "in wedlock"
Part 7—Amendment
of Equal Opportunity
Act 1984
15—Amendment
of section 5—Interpretation
(1) Section 5(1), definition of chosen gender—delete
the definition
(2) Section 5(1), definition of domestic
partner—delete "he or she" and substitute:
the person
(3) Section 5(1), definition of potential
pregnancy—delete "woman" wherever occurring and substitute in each
case:
person
(4) Section 5(1), definition of sexuality—delete the
definition
(5) Section 5(5)—delete subsection (5)
16—Amendment
of section 6—Interpretative provisions
Section 6(4)—delete "sexuality or a particular race or a person of a
chosen gender" and substitute:
sexual orientation or gender identity or a particular race
17—Substitution
of heading to Part 3
Heading to Part 3—delete the heading and substitute:
Part 3—Prohibition of discrimination on ground of
sex, sexual orientation or gender identity
18—Amendment
of section 29—Criteria for discrimination on ground of sex, sexual
orientation or gender identity
(1) Section 29(2a)—delete "chosen gender" and substitute:
gender identity
(2) Section 29(2a)(a)—delete "chosen gender" and
substitute:
particular gender identity
(3) Section 29(2a)(b)(i)—delete "chosen gender" first occurring and
substitute:
particular gender identity
(4) Section 29(2a)(b)(i)—delete "a chosen gender" second occurring
and substitute:
the particular gender identity
(5) Section 29(2a)(c)—delete "chosen gender" wherever occurring and
substitute in each case:
particular gender identity
(6) Section 29(2a)(d)—delete "chosen gender" and
substitute:
particular gender identity
(7) Section 29(2a)(d)—delete "the sex" and substitute:
a sex
(8) Section 29(3)—delete "sexuality" wherever occurring and
substitute in each case:
sexual orientation
19—Amendment
of section 30—Discrimination against applicants and
employees
(1) Section 30(1)—delete "chosen gender or sexuality" and
substitute:
sexual orientation or gender identity
(2) Section 30(2)—delete "chosen gender or sexuality" and
substitute:
sexual orientation or gender identity
20—Amendment
of section 31—Discrimination against agents and independent
contractors
(1) Section 31(2)—delete "chosen gender or sexuality" and
substitute:
sexual orientation or gender identity
(2) Section 31(3)—delete "chosen gender or sexuality" and
substitute:
sexual orientation or gender identity
21—Amendment
of section 32—Discrimination against contract workers
(1) Section 32(2)—delete "chosen gender or sexuality" and
substitute:
sexual orientation or gender identity
(2) Section 32(3)—delete "chosen gender or sexuality" and
substitute:
sexual orientation or gender identity
22—Amendment
of section 33—Discrimination within partnerships
(1) Section 33(1)—delete "chosen gender or sexuality" and
substitute:
sexual orientation or gender identity
(2) Section 33(3)—delete "chosen gender or sexuality" and
substitute:
sexual orientation or gender identity
(3) Section 33(4)—delete "chosen gender or sexuality" and
substitute:
sexual orientation or gender identity
23—Amendment
of section 34—Exemptions
(1) Section 34(2)—delete "chosen gender or sexuality" and
substitute:
sexual orientation or gender identity
(2) Section 34(2)—delete "a person of a chosen gender or a person of
a particular sexuality" and substitute:
sexual orientation or gender identity
(3) Section 34(3)—delete "chosen gender or sexuality" and
substitute:
sexual orientation or gender identity
(4) Section 34(4)—delete "chosen gender" and substitute:
gender identity
24—Amendment
of section 35—Discrimination by associations
(1) Section 35(1)(a)—delete "chosen gender or sexuality" and
substitute:
sexual orientation or gender identity
(2) Section 35(1)(b)—delete "chosen gender or sexuality" and
substitute:
sexual orientation or gender identity
(3) Section 35(2)(a)—delete "both men and women" and
substitute:
persons of different sex
(4) Section 35(2)(a)—delete "men and women" second occurring and
substitute:
persons of different sex
(5) Section 35(2)(b)—delete "both men and women" wherever occurring
and substitute in each case:
persons of different sex
(6) Section 35(2a)(b)—delete "chosen gender" and
substitute:
particular gender identity
(7) Section 35(2a)(c)—delete "sexuality" and substitute:
sexual orientation
(8) Section 35(2b)—delete "chosen gender or sexuality" and
substitute:
sexual orientation or gender identity
25—Amendment
of section 36—Discrimination by qualifying bodies
Section 36—delete "chosen gender or sexuality" and
substitute:
sexual orientation or gender identity
26—Amendment
of section 37—Discrimination by educational
authorities
(1) Section 37(1)—delete "chosen gender or sexuality" and
substitute:
sexual orientation or gender identity
(2) Section 37(2)—delete "chosen gender or sexuality" and
substitute:
sexual orientation or gender identity
27—Amendment
of section 38—Discrimination by person disposing of interest in
land
Section 38(1)—delete "chosen gender or sexuality" and
substitute:
sexual orientation or gender identity
28—Amendment
of section 39—Discrimination in provision of goods and
services
Section 39(1)—delete "chosen gender or sexuality" and
substitute:
sexual orientation or gender identity
29—Amendment
of section 40—Discrimination in relation to
accommodation
(1) Section 40(1)—delete "chosen gender or sexuality" and
substitute:
sexual orientation or gender identity
(2) Section 40(2)—delete "chosen gender or sexuality" and
substitute:
sexual orientation or gender identity
30—Amendment
of section 45—Charities
(1) Section 45(a)(ia)—delete "chosen gender" and
substitute:
particular gender identity
(2) Section 45(a)(ii)—delete "sexuality" and substitute:
sexual orientation
31—Amendment
of section 47—Measures intended to achieve equality
(1) Section 47—delete "the one sex, persons of a chosen gender, or
persons of a particular sexuality" and substitute:
a particular sex, sexual orientation or gender identity
(2) Section 47—delete "persons of the other sex, persons who are not
persons of a chosen gender or persons of another sexuality" and
substitute:
all other persons
32—Amendment
of section 85Z—Exemptions
Section 85Z(2)—delete "sexuality" and substitute:
sexual orientation
Part 8—Amendment
of Evidence
Act 1929
Section 34H—delete the section
Part 9—Amendment
of Family Relationships
Act 1975
34—Amendment
of section 10A—Interpretation
Section 10A(1), definition of qualifying
relationship—delete "opposite" and substitute:
different
Part 10—Amendment
of Guardianship of Infants
Act 1940
Section 20—delete the section
Part 11—Amendment
of Health Practitioner Regulation National Law
(South Australia) Act 2010
36—Amendment
of Schedule 2—Health Practitioner Regulation National
Law
(1) Schedule 2, clause 123A(1)(f)—delete "a woman" and
substitute:
someone
(2) Schedule 2, clause 123A(2), definition of restricted birthing
practice—delete "a woman" and substitute:
someone who is pregnant
Part 12—Amendment
of Landlord and Tenant
Act 1936
Section 44—delete the section
Part 13—Amendment
of Payroll Tax
Act 2009
38—Amendment
of section 53—Maternity and adoption leave
(1) Section 53(1)(a)—delete ", being leave given to a female
employee in connection with her pregnancy or the birth of her child" and
substitute:
given to an employee who is or was pregnant where the leave is used in
connection with the pregnancy or birth of the employee's child
(2) Section 53(1)(b)—delete "him or her" and substitute:
the employee
Part 14—Amendment
of Settled Estates
Act 1880
39—Repeal
of sections 48, 49 and 50
Sections 48, 49 and 50—delete the sections
Part 15—Amendment
of Sexual Reassignment
Act 1988
40—Amendment
of section 3—Interpretation
Section 3, definition of reassignment procedure—delete
"the opposite" and substitute:
a different
Part 16—Amendment
of Summary Offences
Act 1953
41—Amendment
of section 81—Power to search, examine and take particulars of
persons
Section 81(3)(d)—after "sex" insert:
or gender identity
Part 17—Amendment
of Trustee
Act 1936
Section 22—delete the section