This article discusses the legal regulation of parenting in lesbian and gay families in Australia. This landscape of regulation includes laws that govern such families both before and after they are formed; that is, laws controlling access to potential family formation options in addition to laws that govern the status of parents and children in families that are formed through alternate means. There have been a number of important developments in these areas in recent years, including: challenges to laws that restrict access to fertility services; reforms to adoption laws in three jurisdictions; and deemed parental status for co-mothers in lesbian families formed through assisted reproduction in three jurisdictions. This article will detail how the new parental status reforms interrelate, including difficult questions regarding the recognition of this new parental status in other States and their interaction with federal law.

A wide range of state and federal laws recognise and regulate intimate and familial relationships. Such laws include inheritance, immigration, guardianship and superannuation as well as the areas that we traditionally think of as ‘family law’: property division and disputes over children following relationship breakdown.

There is no reliable demographic data on how many adults identify as lesbian or gay in Australia, but there is information to indicate that many lesbians and gay men live in long-term relationships, some of which include children. The Australian census has never asked individuals to identify their sexuality, but in 1996 and 2001 invited people to record if they are living in a same-sex relationship. These figures underestimate the numbers of couples for a variety of reasons: in 1996 the question itself was confusingly worded, and many people were unaware that they were able to record their relationship for the first time. The census does not record couples who do not cohabit. In addition, there are still many same-sex couples who would not feel comfortable recording their relationship on an official document such as a census.

Our argument in this paper is that the evidentiary practices and procedures that have been developed by the Australian Refugee Review Tribunal are operating at a routinely low standard. Such practices contribute to decisions that are manifestly unfair and potentially wrong in law. A recent working paper from the Office of the United Nations High Commissioner for Refugees ('the UNHCR') notes that evidentiary questions have been 'largely ignored in the academic literature.' Our conclusions are drawn from our detailed study of more than 300 refugee tribunal decisions made in Canada and Australia in response to asylum claims brought by lesbians and gay men. Our overall frame of inquiry in this study considers how the respective tribunals grapple with the issue of identity, the complex cluster of dilemmas around the public/private divide, the inability of many decision-makers to imagine the 'other' who stands before them in these claims, and the way this area of law encodes and reflects homophobic stereotyping.

Each year approximately 60 registered health practitioners in Australia have their registration cancelled for reasons of serious misconduct or, less commonly, impairment or criminal conviction. Cancellation remains in force unless the practitioner successfully brings a later application to be restored to the register. While the decision to deregister takes place in a public tribunal process, with published reasons, throughout most of Australia determinations concerning reinstatement are undertaken by professional Boards in private. This research examines available reinstatement decisions concerning 86 health practitioners to analyse how the health regulatory system in Australia determines questions of public interest and public safety when deciding whether deregistered health practitioners who seek reinstatement are now ‘fit and proper’ to practise their profession again. There is a considerable body of case law on the meaning of fitness to practise for health professionals, and the process by which it can be assessed. However, there is remarkably little legislative content or administrative guidance to structure the reinstatement inquiry, assist applicants in the process or to ensure consistency of decision-making, in particular by drawing attention to broader public protection factors. Reinstatement determinations would be improved through the introduction of structured guidance on how to apply the paramount objective of public protection. The article also suggests that having all reinstatement determinations take place in public with published reasons would improve public understanding of, and confidence in, the reinstatement process.

Since 2010, a national scheme regulates the registration, accreditation and discipline of health professionals in Australia (the ‘National Law’). This research examines disciplinary cases from tribunals nationwide to address the question: Has the national regulation of health professionals produced consistency in outcomes in serious cases of professional misconduct? All publicly available Australian tribunal-level decisions concerning complaints of serious misconduct and/or impairment brought against the five most populous regulated health professions (nurses and midwives, doctors, psychologists, pharmacists and dentists) were analysed for the period from 1 July 2010 to 30 June 2017. Each case was coded by reference to a typology of misconduct, practitioner characteristics and outcome, allowing for comparisons to be drawn both as between the professions and as between jurisdictions. Major disparities were identified in outcomes across the professions, with doctors being subject to less severe outcomes than other professions, in particular in comparison with nurses, even when the same main head of misconduct was in issue. Marked disparities were also identified between outcomes in different states and territories, suggesting that the National Law is not being applied in a uniform manner. This article examines these disparities and explores possible contributing factors.