The biggest innovations in Australian relationship law have been emerging from its smallest jurisdictions.
But these innovations have been watered-down by a Federal Government unable and unwilling to accept change. First, Tasmania enacted a scheme for the recognition of all personal relationships - same-sex opposite-sex, companionate and familial - which is acknowledged as one of the most progressive in the world.
The criteria for such relationships are so broad that they virtually allow any two adults to define for themselves who the most important person in their life is and seek government recognition and protection for that relationship through a registry. The registry was also constructed in such a way as to allow partners to choose for themselves how they entered their new legal relationship, including a solemn ceremony involving a state official, if that's what they want.
No longer do partners need to swear the vows of marriage or jump through the hoops confronting de facto couples to access rights and protections.
In the same vein, the law which established that registry wiped all old, narrow relationship definitions from the state’s statutes, replacing “husband”, “wife” and “defacto partner” with the one inclusive term, “personal relationships”.
In this way the Tasmanian scheme responds to a growing awareness that all significant personal relationships have equal validity, and demand equal rights.
The ACT’s now-thwarted attempt to enact its civil partnership bill was a response to another important 21st century challenge: the equal legal and social recognition of same-sex relationships. The ACT attempted to do this by enshrining in law a ceremony which all those seeking to formalise their relationship would have to undertake before accessing rights and entitlements. This official ceremony would make it absolutely clear that the government, and through it the community, valued and affirmed the relationship in question.
There could be no faster-acting antidote to the poison of discrimination and stigma which same-sex relationships still endure.
The response of the Federal Government to these developments has been tragically short-sighted. It says it supports a “Tasmanian-style” registry as an alternative to the ACT proposal and to same-sex marriage - something it was never designed to be.
But worse, to make the Tasmanian registry a foil to same-sex marriage that is also acceptable to church groups, the Government has sold the nation a version of that registry which is so watered-down as to be unrecognisable. For example, the Rudd Government says the Tasmanian scheme “simply registers existing de facto relationships” in a way which isn’t “legally binding”, but this is utterly untrue.
The registry is open to all kinds of adult relationships, creates new legal relationships with virtually the same rights as married partners, registers signed and witnessed Deeds of Relationship in the same way as marriage certificates are registered, and ensures these Deeds as just as “binding”. For all these reasons the Tasmanian registry is recognised overseas as a civil union scheme.
As for Tasmania’s replacement of marriage-related legal terms with new and more inclusive relationship categories, this is an inconvenient truth that would alarm church lobbyists and which the government keeps very quiet.
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