Defining relationships

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.

Tasmania’s relationship laws are diminished by the Rudd Government because they cannot easily be removed, but no such impediment exists in the ACT. To appease the hostility of some Christian churches to same-sex relationships, the Federal Government has forced its constitutionally-subordinate ACT equivalent to remove the ceremonial component of its law. Instead, the ACT will allow ceremonies by administrative arrangement.

While we applaud the ACT Government for wresting this concession, the fact remains that Bronze Age prejudices have triumphed over the dual principles of sexual equality and ACT self governance.

To soften the blow of stymieing the ACT, the Federal Government has run a propaganda campaign not unlike its campaign to distort Tasmania’s laws.

But where the Federal Government’s fictional Tasmanian registry has been reduced to simply issuing stat decs to defacto partners, its fictional ACT civil partnership scheme has been spun the other way into a dire threat to the heterosexual definition of marriage.

Last week the Prime Minister even wrongly declared it would “effectively amend the Marriage Act”.

In reality, none of the nations with ceremonial civil union schemes - including the UK or New Zealand - have seen the traditional legal or social definition of marriage altered.

What they have seen is greater acceptance and affirmation of the love between two men or two women, which, of course, is just what the religious right doesn’t want and has somehow found a way to convince the Australian Government to stop.

Once we strip away the Federal Government’s myth-making about state and territory relationship laws what we are left with is this:

The Tasmanian and former ACT schemes have much more in common than the Rudd Government says, making it indefensible to uphold one while damning the other.

The Tasmanian scheme, the soon-to-be-established Victorian registry based on it, and whatever scheme the ACT finally adopts, are all civil union schemes and deserve full and equal recognition in federal law when the Rudd Government moves later this year to recognise same-sex defacto couples.

A third type of relationship law is emerging in Australia that is neither marriage, nor defacto marriage, but something which responds to the diverse needs of contemporary Australia.

The Federal Government can misrepresent and thwart this movement as much as it likes, but it will continue to grow as long as formerly unrecognised relationships demand rights and respect.