Couples in Victoria are now able to adopt children regardless of the couple’s sex or gender identity. Victoria has become the fifth Australian state or territory to provide for same-sex adoption, joining the Australian Capital Territory, Western Australia, New South Wales and Tasmania in making important law reforms. 

Martin Foley, Victorian Minister for Equality, said in a recent statement:

this law brings much needed certainty for many children and their parents who currently live in a legal haze in terms of their relationships with the people they love.”

The new legislation was passed in the Victorian Parliament last year, and took effect from 1 September 2016.

As a result of these changes, much of the terminology describing same-sex families in government issued forms has been rendered out-of-date and inaccurate.

A recent example can be seen in the ABS census forms which have faced significant criticism due to the exclusive use of the terms ‘mother’ and ‘father‘ to describe Australian families.

Rainbow Families, an organisation which supports and empowers LGBTQI families, has raised concerns that the census is not inclusive. That is, as a result of this narrowly-worded question (which contradicts legislative changes that enable same-sex couples to adopt children), families with same-sex parents will not be accurately counted in this year’s census data.

On the census form, questions are asked regarding the place of birth of the child’s ‘mother’ and ‘father.’ No alternatives are provided and there is no option to change the gender of such questions, which assume that every child has a mother and father.

Vanessa Gonzalez, from Rainbow Families, contacted the ABS to enquire about how same-sex parents may record their information on the census form. The information she received from the ABS provided that:

the most straightforward way [for same-sex parents to fill in their census data] is to have either one of the mothers [or fathers] use the father [or mother] response in the form.”

Same-sex families can either follow the above recommendation, or ask for a paper form which allows either the ‘mother’ or ‘father’ option to be crossed out, and for the true gender of a same sex parent to be correctly entered.

[pullquote align=”right” cite=”” link=”” color=”” class=”” size=””]In 2016 we should not be expected to still be crossing out government forms,” Vanessa Gonzalez says.[/pullquote]

Even where same-sex parents accurately record their census data, the ABS has not guaranteed that the gender of each parent will be collated in those instances.

Census Director, Duncan Young, has said that the questions regarding a child’s parents were aimed at the birth parents:

The reason why the question is structured the way that it is, is because of the interest in birth parents, however, if people feel that they should be reporting their own country of birth that’s okay as well”.

The question does not specifically ask for information about birth parents, it merely provides either ‘mother’ or ‘father’ as options to be selected. In view of the criticisms, Duncan Young has said the ABS would consider changes to the census form in future.

With changes in adoption laws across Australia, which provide for the adoption of children by same-sex parents, it is more prudent than ever that appropriate recognition is given to same-sex couples and that this is reflected and implemented across documents and forms in the Commonwealth government and other jurisdictions.

Since the 2016 online census form does not provide an option for same-sex parents, disappointingly, this year’s census data will not give an accurate representation of same-sex families in Australia.

Gender other than male and female

For the first time, Australians have been offered another option to the gender question.

This question cannot, however, be answered on the standard online form and requires either a special login, or completion of the paper form. To do so using the paper form, two available ‘male’ or ‘female’ boxes must be left blank, and a third option may be provided in a blank space below. The special online login, on the other hand, gives users the choice to tick a third option, “other.”

The changes are being hailed as a breakthrough.

Rowena Allen, Victoria’s Gender and Sexuality Commissioner has commended the ‘other’ option.

I think it’s fantastic because it is a free box. So if we had to tick something we would never get enough boxes.”

The inadequacy of the census form itself is, however, remains as information about how Australians may go about identifying as a gender other than ‘male’ or ‘female’ is not readily available. To obtain any information on how to go about completing the census form in this way, it is necessary to make a phone call to the ABS for further information.

Given that ABS phone lines were completely overwhelmed in the weeks leading up to the census, (to the point where many callers were disconnected), accessibility issues are a serious concern and must be seriously improved for the next census.

Gender fluidity

Gender fluidity is becoming increasingly recognised by state legislatures.

On 18 August 2016, Victoria introduced a proposed bill, the Births, Deaths and Marriages Registration Amendment Bill 2016 which allows individuals to change the gender on their birth certificate, without needing to undergo sex affirmation surgery. The proposed changes would remove barriers for transgender, gender diverse and intersex Victorians who seek new birth certificates. The bill has not yet been passed.

To change the sex recorded on birth certificates under current legislation, corrective surgery is required and must be proven to the Registry of Births, Deaths and Marriages. Victorians would also be able to choose a gender diverse or non-binary descriptor, should they not identify as male or female.

The proposed legislation would also allow parents to apply to alter the sex recorded on their child’s birth registration. To do so, the child must have capacity to consent, as assessed by a doctor or psychologist, and the change must be in the best interests of the child. 

Other states and territories have passed similar legislation, including the ACT. Proposed changes have also been introduced in South Australia.  While Tasmania’s Anti-Discrimination Commissioner has recommended law reform, no legislative changes have yet been proposed.

Australians have until Friday 23 September 2016 to complete the census without the risk of incurring a fine.

Have something to add to this story? Let us know in the comments!

News of the release of the Copyright Amendment (Disability Access and Other Measures) Bill 2016 exposure draft was probably drowned out by the tiresome election coverage and any hope of immediate action in the first few months of the new government is pipe-dreaming. This is indeed a bothersome state of affairs for copyright reform advocates.

Copyright law is the misunderstood angsty teenager of the legislative family, one that is very often overlooked despite being of increasing importance in an ever digitised world. While the proposed bill does not go all the way to making the changes that the Australian Law Reform Commission’s (ALRC) Report Copyright and the Digital Economy recommended in 2014, it does make some modest and important improvements to the existing copyright framework.

The main changes proposed in the bill are designed to streamline and simplify the Copyright framework to:

• make it easier and simpler for educational institutions and copyright collecting societies to agree on licensing arrangements for the copying and communication of copyright material
• provide simple, clear guidelines for libraries, archives and key cultural institutions to make preservation copies of copyright material
• align the period of protection for unpublished works with that of published works to provide libraries, archives and other cultural institutions with greater opportunity to use, and provide public access, to unpublished works
• ensure that search engines, universities and libraries have ‘safe harbour’ protection if they comply with conditions aimed at reducing online copyright infringement
• importantly, the bill also seeks to streamline and simplify the existing copyright exceptions and limitations for the use of copyright material by the disability sector.

Protection Of Unpublished Works: Respect For The Creator Or Unnecessary Stymying Of Creativity?

The purpose of copyright law is to protect the expression of the work, rather than the ideas and facts it contains.

However, affording indefinite protection to unpublished works has not only locked up expression, it has also locked up facts. Take, for example, Captain Cook’s recipe for carrot marmalade, undoubtedly a valuable contribution to society, but one that cannot be published because it is contained in a book of Cook’s correspondence.

The National Library holds this among many other letters written and received by notable figures, including Jane Austen and Dame Nellie Melba, all of which cannot presently be digitised or copied.

Advocates of retaining the indefinite protection afforded to unpublished works argue that it is a necessary outgrowth of the need to respect the wishes of the creator, who never wrote or received those letters with the intention of publishing them.

This argument, although initially persuasive, is easily refutable.

Copyright law was established with the intention of encouraging creativity, where the promise of protection and corresponding reward is thought to be necessary in order to incentivise the creation and dissemination of works in the first instance. Unpublished works clearly do not fit within the broader goal of copyright work, since they weren’t created with the rewards of publication in mind.

It is more persuasive to suggest that unpublished works should not be protected by copyright law at all.

How Does The Proposed Bill Change Things?

The bill seeks to make the protection terms for published and unpublished works the same.

Currently, unpublished works have indefinite copyright protection, and published works are copyright protected for the lifetime of the author, plus 70 years.

The proposed bill aims to apply what is known as the “plus 70” law to unpublished works, an unprecedented step in the quest to encourage creativity.

The proposed bill provides libraries, archives and key cultural institutions with ways around their present inability to preserve unpublished works.

While the copyright protection of unpublished works isn’t going anywhere any time soon, the bill seeks to provide an acceptable compromise, one that affords unpublished works the same term of protection as published works, and allows institutions to make ‘preservation copies’ of such works.

If the Bill does not pass, creating such copies will remain illegal, which leaves our existing copyright laws with a serious deficiency.

The Copyright Act 1968 and associated legislation is excessively complex, archaic and restrictive. In the light of this, the Bill also seeks to streamline educational statutory licence provisions, supporting access rather than creating unnecessary red tape and overly bureaucratic processes. This will improve the quality of teaching in schools by providing simpler and more accessible licensing arrangements regarding copyright material.

Submissions to the consultation regarding the exposure draft of the Bill closed on 12 February 2016. Once the new Parliament settles in, hopefully the bill will be re-introduced with amendments that take account submissions received. Maybe then we will finally see action in an area that has been crying out for reform since the internet of things was born.

Conclusion

It’s the first step, albeit small, towards realigning copyright law with public and industry sentiment and need.

The passage of the bill through Parliament will hopefully ignite discussion surrounding more contentious areas of copyright law, namely the introduction of a fair use exemption. There is still much work to be done in establishing how much protection and control creators should be afforded over their work, and how this can be balanced with the need to ensure public access to such works and promote a rich and vibrant public domain.

Have anything to add to this copyright discussion? Let us know in the comments section below!

But when social media platforms are misused to go further than a little harmless fun, such as making serious threats and offensive or improper suggestions, do we ever stop to think – is this against the law?

A Sydney man, Zane Alchin, who made a string of abusive and sexually threatening comments on a screenshot of a woman’s Tinder profile which was posted to Facebook posed the question:

What law am I breaking?’

The answer came in the form of a conviction by a court for using a carriage service to menace, harass or offend under Part 10.6 of the Commonwealth Criminal Code Act 1995 (the Criminal Code). The maximum penalty is 3 years imprisonment.