Equity, choice and inclusion

In a legal version of cultural cringe, some of Australia’s leaders are blindly accepting that Australia’s civil partnership registries are inferior to their overseas counterparts.

Recently, retiring High Court judge, Michael Kirby, equated registering a relationship in Australia to licensing “a dog or a busker”, despite having a more benign view of overseas “civil unions”.

A day later, independent Senator, Nick Xenophon, said his preference is for Australia to adopt a “UK system of civil partnerships”.

In fact the partnership registries which have been established in Tasmania and the ACT, and which will soon open in Victoria, are not only fully-fledged civil union schemes, but some of the best civil union schemes in the world.

A myth often repeated about Australia’s registries is that they are fundamentally different to civil union schemes because the former simply register existing defacto relationships.

This is wrong.

In Tasmania, for example, strangers can conceivably register a relationship if they wished, because there is no requirement to be in an existing relationship. Meanwhile, partners who register acquire a suite of new rights not available to de facto partners, and their existing wills are dissolved by the act of registration. Just as importantly, partners who enter registered relationships do so precisely because they wish to demonstrate a level of commitment not traditionally associated with de facto partnerships.

It is on the basis of this common misunderstanding about partnership registries that Michael Kirby equated them to dog licensing. But again the facts tell a different story.

Civil partnerships, like all important life events, including births, deaths and marriages, are registered on a register, by a registrar in a registry. In reality civil unions and registries are synonymous. Both allow couples to formalise and solemnise their relationship and thereby obtain the same rights as married couples.

It is on this basis that other countries recognise Australia’s registries as civil union schemes.

Furthermore, the distinctions that do exist between Australia’s registries and other civil union schemes favour the former. Australia’s schemes tend to recognise a wider range of relationships, including non-sexual partners, and they have optional ceremonies. This allows ordinary people to decide for themselves which of their personal relationships is the one that would best benefit from official recognition. It also allows partners to decide for themselves how this recognition occurs.

Some will opt for an official ceremony in front of friends and family. Others will prefer simply to sign an official form to secure their rights, because their relationship requires no-one else’s validation.

This emphasis on equity, choice and inclusion contrasts sharply with overseas schemes. Heterosexual and non-sexual partners are excluded from the UK civil partnership scheme, which also has no official ceremonial component. Most other schemes also exclude non-sexual partners and insist on an “I-take-thee”-style ceremony, even when a couple doesn’t want or need one.

This is because of the most fundamental difference between Australian and overseas schemes. Civil unions in other places have generally been established as politically-expedient substitutes for same-sex marriage. In contrast, Australia’s registries have been developed as an alternative to marriage for couples who can’t or don’t wish to marry.

In other words, Australia’s civil partnership registries can and should exist side-by-side with opposite and same-sex marriage, and with legal protections for de facto couples, in the kind of three-tiered system of legal recognition that already exists in Canada and the Netherlands.

Figures from Tasmania and the ACT demonstrate that there is a need for the kind of flexible recognition registries offer with the proportion of partnership registrations matching those of overseas civil union schemes, and with couples taking up both the ceremonial and non-ceremonial options, regardless of their gender.

In light of this, it is a double tragedy that the Rudd Government has consistently put forward registries as an inappropriate response to the demand for same-sex marriage.

Not only does it divert attention from marriage discrimination and the harm this discrimination does to both same-sex couples and the institution of marriage. It also diverts the anger of gay couples about this discrimination to the wrong target, civil registries.

We urge the Australian public not to be deceived by myths and misunderstandings that distort and diminish registries. Instead, we urge call for a more honest and better informed debate about relationship law reform, one that tackles same-sex marriage in its own right, but also takes us beyond marriage to a choice and equity-based system of relationship laws within which registries play a pivotal role.