Your rights

The information in this section has been gathered from a range of sources. It is intended to provide a general guide only. The information is based on New South Wales laws and may differ interstate or internationally. Expert legal advice should be sought when faced with a legal issue.

Where can I get legal advice?

There are a number of places you can get legal advice from. They include:

Private Lawyers/Solicitors

If you don’t have your own solicitor there are a number of firms that do a lot of work within the lesbian and gay communities. Look in your local gay and lesbian press for details of supportive lawyers or check out the Attorney Listings, New South Wales page on http://www.gaylawnet.com.

Community Legal Centres (CLC)

CLC’s provide free legal advice, referrals and some representation to people who live and work in their area. There are 36 CLC’s in NSW including the HIV/AIDS Legal Centre (02 9206 2089) and the Sydney-based Inner City Legal Centre which auspices the Lesbian and Gay Legal Rights Service (9332 1966).

The centres can advise you about the various legal options available to you if you have been the victim of an act of violence or hate crime, or if you fear for your safety. For details of the CLC nearest to you, contact the NSW Community Legal Centres’ Secretariat on 9318 2355.

What actions can I take against a perpetrator of violence or harassment?

Apprehended Personal Violence Orders (APVO)

If you know the perpetrator and you fear for your safety you can apply for an Apprehended Personal Violence Order (APVO). APVOs are court orders designed to protect you from physical assault, stalking, harassment, intimidation or damage to property. It is possible to get an APVO to protect you from a range of people including neighbours and colleagues. If the perpetrator is a partner, ex-partner, family member or flatmate the order you will be given will be called an Apprehended Violence Order (AVO). In other respects the AVO is the same as an APVO.

APVOs can be tailor made to suit the situation. They can include restrictions so that the perpetrator doesn’t come to your home or work, can’t call you and so on. Others people, like your partner, friends or family members, may be added to the order too if it is believed that they need protection. The order does not give the defendant a criminal record unless they breach it. Breaching and APVO or AVO can result in the perpetrator being fined or jailed.

To get an APVO you should contact the police or your local court to make an appointment to see the chamber magistrate who can initiate an APVO. This is called an interim (temporary) APVO and is not effective until it is served (given to) the defendant.

The matter will be a given a date before the court (a mention date). At that time, the defendant will need to tell the court whether s/he will agree to the conditions of the APVO or whether s/he intends to contest them. If s/he agrees the order will be made final on that day. If s/he doesn’t agree to the conditions the matter will be set down for a hearing on another day. The interim APVO will stay in place until the hearing. At the hearing, the final APVO will be made if he magistrate is satisfied that you have reasonable grounds to fear the defendant.

Two important points to remember about APVO. First, even if you invite the perpetrator to breach the conditions of the order it is still illegal. For example, if an APVO says the perpetrator can’t come to your house they are still breaking the law even if you invite them in. Second, if you have an APVO out against someone and they breach it you should call the police immediately and let them know the APVO is being breached.

For more detailed information about APVOs check out http://www.lawlink.nsw.gov.au/lac.nsf/pages/avoapply

Criminal Action/ Reporting To Police

Criminal action can be taken against someone who has broken the law, for example, assault, stalking, property damage and so on. The outcome of taking criminal action may result in the perpetrator being fined or imprisoned.

The first step in taking criminal action is to report the incident to the police. If you prefer you can request to speak with a police Gay and Lesbian Liaison Officer (GLLO) .  To find out where your nearest GLLO is, call the NSW police switchboard on 02 9281 0000.

The police will require you to make a formal statement. They may then investigate the matter. If the police believe there is enough evidence to successfully prosecute the perpetrator they will lay charges against him/her. You don’t have the right to ‘press charges’.

For more information on making a police report, see this factsheet.

People who are charged with an offence can choose to plead ‘guilty’ or ‘not guilty’. If they plead ‘not guilty’ a court case will follow and you will have to give evidence about the incident.

It is important to record or document any injuries you have sustained by seeing a medical practitioner as soon as possible and taking photos of your injuries. This can be important for criminal proceedings as well as other legal proceedings (see below).

Civil Action

Civil action may be taken against someone if they have caused you some kind of loss or injury. If you know the identity of the person responsible and they have assets you may consider suing them in the civil courts for damages (money) to compensate you for the suffering caused. Depending upon the situation you may sue the offender as well as others who may bear some responsibility for the incident. For example, if you are assaulted in a bar and it can be shown that the management let in a group of drunken homophobes it may be possible to sue the proprietors for negligence.

The time limit for taking this kind of action is three years from the time of the incident.

Victims Compensation

If you have been the victim of an act of violence (in NSW), you may be able to claim compensation from the Victims Compensation Tribunal (VCT) for the physical or psychological harm you have suffered as a result. The claim could also include a claim for loss of earnings and other expenses incurred as a result of the assault, such as damaged clothing.

Applications for compensation must be lodged with the VCT within two years of the date of the incident. The incident must also be reported to the police as soon as possible and it is important to see a medical practitioner so any injuries can be documented.

Victims of crime can also apply for counselling with a VCT approved psychologist. The VCT can be contacted on 9374 3111 or 1800 069 054 or looking at www.lawlink.nsw.gov.au/vs

Discrimination and Vilification

Discrimination is any act by another person or organisation that prevents you from getting equal access to goods or services that are available to other people. Discrimination can be based on age, sex, race, marital status, disability (including HIV/AIDS) or sexuality. An example of discrimination might involve a real estate agent not leasing a property to someone because they are gay.

Churches and their agencies are exempt from anti-discrimination laws!

Vilification is any public act, like a speech or article, which is likely to incite (stir up) hatred, serious contempt, or severe ridicule towards a group of people because of their race, homosexuality or HIV/AIDS status.

The NSW Anti-Discrimination Board hears complaints of both discrimination and vilification, and can award compensation to the injured party. You must lodge a claim for compensation within six months of when the act first occurred. For more information or to lodge a claim call the Anti-Discrimination Board on 9268 5555 or 1800 670 812 or check out http://www.lawlink.nsw.gov.au/ADB

General Legal Issues

If you are interested in other laws that relate to gay men, lesbians and transgender people have a look at www.gaylawnet.com and go to Laws Australia, NSW. This site is “dedicated to providing general information and resources concerning the law as it affects the global gay, lesbian, bisexual, transsexual and intersex (GLBTI) community and the simplest access to a gay or lesbian (or gay or lesbian-friendly) lawyer.” It has information about lawyers and the legal situation from around the world.