Rodney Croome . gay advocate

Full and equal recognition

State and federal governments cannot be allowed to skimp on relationship registries.

If there was a guide to human rights etiquette I’d flick to that page headed “How long you should wait before it’s acceptable to officially criticise a report which is, on the whole, important, admirable and influential”.

Unfortunately, there is no such manual so let’s assume that after two months it’s okay to point out flaws in the Human Rights Commission’s report on legal entitlements for same-sex couples.

Of course, I’ve already stated my concern about how the HREOC report handles the formal recognition of same-sex relationships.

But there are some very specific problems which need to be followed up because of the potential they have to undermine efforts at reform.

~ ‘Helpful but not necessary’

In a letter to Human Rights Commissioner, Graeme Innes, from the Tasmanian Gay and Lesbian Rights Group, ANU academic Wayne Morgan and yours truly, list the ways in which HREOC misrepresents the Tasmanian relationship registry, and relationship registries in general.

The letter counters claims that relationship registries have some kind of male and inner-urban bias, and that the take up in Tasmania has been relatively low.

It takes aim at the statement that they are “helpful but not necessary” to accessing spousal entitlements, citing several examples of where they have been absolutely essential.

But the primary problem addressed by the letter is HREOC’s misapprehension that relationship registries are a way for de facto couples to prove their relationship status.

The reality is significantly different. When a couple obtain a Tasmanian Deed of Relationship they enter into a new legal relationship, just like a couple entering a civil union or a marriage. They do not need to be in an existing relationship.

Sure some couples will use their Deed to establish their relationship rights if and when these rights are challenged. But the rights their certificate guarantees are the rights of a registered couple, not a de facto couple.

As readers of this site are aware, this same a mistake that has been made by the ACT Government, the Victorian Government and the Federal Opposition.

Even the NSW Gay and Lesbian Rights Lobby is repeating the fiction. According to spokesperson, Ghassan Kassisieh,

“A registration certificate would be like a birth certificate. It would help prove your relationship in emergency situations.”

Yes, a Deed of Relationship would help in emergency situations. But in the same way as a certificate of marriage, not birth.

(GK is also wrong about registries being "steps towards civil unions and marriage rights". The Tasmanian registry is an end in itself, providing recognition and rights to couples who can't or choose not to marry. Indeed, it takes us away from marriage by allowing for the formal recognition of couples regardless of whether they are in a marriage-like relationship. But that's another story.)

~ ‘A legal and social fact of life’

All this is obviously irritating for supporters of Tasmania’s relationship registry, but why is it important?

Misconceptions about registries which diminish their value can be used by recalcitrant states to dodge the issue.

Despite Federal Labor’s commitment to “nationally-consistent” registries in every state, and despite strong support within the LGBT community for such a registry, the NSW Government says it’s not interested.

If Macquarie St was pressed on the issue, the HREOC report would provide it with a gold mine of catchy distortions and misrepresentations to justify its position.

Of equal concern are those states tempted to enact watered-down registries.

At the moment the Victorian Government seems to prefer a registry which is only open to de facto couples. If Spring St sticks to this model, the myths in the HREOC report will come in very handy for deflecting criticism.

But of even greater concern is the impact of the HREOC report’s misrepresentations on the recognition of state registered relationships in federal law.

In HREOC’s preferred model for the recognition of same-sex couples in federal law the only relationships given entitlements are those between de facto partners. Registered partners are not mentioned.

If this model was put in place – as the Australian Democrats have attempted in a recently-tabled Bill - registered couples would have no rights or recognition under federal law at all, even though they have virtually the same rights as married couples under state law.

To gain federal relationship entitlements, partners in a registered relationship would have to jump through all the domestic and financial hoops necessary to be considered a de facto couple, and then find ways other than their state certificate ways to prove it.

As if this wasn’t absurd enough, consider the other two glaring inconsistencies such an approach creates.

First, some foreign governments, like Britain’s, already automatically recognise Tasmanian registered relationships as civil unions. Without federal recognition of their registration, a Tasmanian couple could have more rights under UK law than under Australian national law.

Second, some federal government agencies have already begun to recognise Tasmanian registered relationships.

That’s right, despite the Feds’ opposition to formally recognising same-sex couples, the Department of Immigration accepts a Tasmanian Deed of Relationship as evidence of a interdependent relationship when considering immigration applications by same-sex couples. I understand the Department of Defence does the same for the entitlements it offers same-sex partners in interdependent relationships. On the down-side, applicants for the federal first-home-owners grant are assessed as married couples if they are in a same-sex registered relationship (the scheme is administered by the State Revenue Office). A couple I know lost $11,000 because suddenly, for this one entitlement, the Feds stopped seeing them as singles.

Anyway, the point is that even under a federal government antagonistic to the principle of formal recognition of same-sex couples, the practice of recognition has already moved further than HREOC’s recommendation.

In fairness to HREOC, its report does include an option for limited recognition of state registered relationships.

Immediately after the report’s core definition of a de facto same-sex relationship in federal law, and in line with its misleading characterisation of a registered relationship as proof of a de facto partnership, HREOC says consideration could be given to allowing state registered relationships to be proof of the existence of a federal de facto relationship, if states other than Tasmania adopt registries (and people wonder why I get angry about condescending attitudes to Tasmania).

The problem with allowing one kind of relationship to be proof of the existence of another should be obvious.

Couples who enter into a registered relationship do so because they want to be a in formalised union. To then grant them rights in federal law on the basis of this union, but only as partners in an unformalised relationship, is deeply dismissive of their choice.

To quote the TGLRG letter to HREOC,

“Registered relationships are a legal and social fact of life in modern Australia. They are a legitimate and equal choice along with de facto partnerships for those same-sex couples living in jurisdictions which allow them. They deserve to be treated with the same level of respect by all tiers of government.”

~ Full and equal recognition

The way to treat same-sex partners in state registered relationships fairly and respectfully in federal law is simple.

For the purposes of all relationship entitlements they should be recognised in their own right, not as married, de facto, or interdependent partners, but as partners in a registered relationship.

There will be opposition to this, and not just from right-of-centre marriage fundamentalists who see any formalisation of same-sex unions as a threat to their sacred institution.

There are also quite a few left-of-centre de facto fundamentalists who hope for the day when formalised unions of all sorts wither away.

These groups will unite to oppose fair and equal treatment of state-registered same-sex couples, and their first line of defence will be the Constitution.

The Federal Government has no power to recognise a state registered relationship, they will argue. Such recognition may even be unconstitutional because it gives citizens in one state an advantage not enjoyed by citizens in another.

Anticipating this, the TGLRG has received legal advice from senior constitutional lawyers which clearly states that full and equal federal recognition of state registered relationships is simple and straightforward.

In areas of Federal jurisdiction like income tax, Medicare and immigration our advice says the Feds are at liberty to recognise any legal relationship they wish.

When it comes to matters traditionally in state jurisdiction but which the states want to hand to Capitol Hill, like property division and child support, a combination of a referral of powers, and Australia’s international human rights obligations, are sufficient to ensure registered relationships are included.

The only sticking point, according to the experts we have consulted, is the wide range of non-conjugal relationships enfranchised under Tasmanian law. A separate referral of power would be required for non-conjugal registered relationships to be recognised federally.

If the legal advice we have obtained, together with the letter to HREOC, seems like the beginning of a campaign, that’s because it is.

It is inevitable that registries will be established in the mainland states, beginning with Victoria, increasing the number of Australian registered same-sex couples from the current hundred plus to many thousands.

At the same time, whichever party is elected to national office later this year, reform of federal law to recognise a wider range of relationships, including same-sex relationships, will be on the national agenda.

Under these circumstances, those of us who have championed relationship registries cannot sit back and watch the equitable and progressive model we have established in Tasmania distorted, demeaned or sidelined

Neither will we tolerate the second-rate treatment of those couples who choose to register their relationships.

It's time to take a stand for relationship registries. It's time to ensure they fulfill their promise of recognition and equity for unmarried same-sex and other couples.

***

In other news,

Faults aside, the HREOC report continues to inspire considered public discussion.

Attorney-General, Philip Ruddock, thinks charters of rights are more trouble than they’re worth. To make this very weak point look stronger he deploys parochial nationalism, resentment of judicial “elites” and fear of “gay marriage”.

Clearly, the current government is impatient with the checks and balances which make Australian democracy stronger – states, human rights guarantees, an assertive judiciary.

Equally clearly, it’s positioning all three to be sitting ducks in its pre-election shooting gallery.

And

Former New Jersey Governor, James McGreevey, responds to the latest American political gay sex scandal with an insight into what sends closetted people into politics, how politics keeps them there, and the role equal marriage plays in this sad private/public nexus.

Money quote,

“…being in the closet uniquely assisted me in politics....Politics was (also) for me a way to secure the crowd's approbation while maintaining a busyness that obfuscated the desires of my heart. Despite being a moderately liberal governor, my stance on marriage was: "between a man and a woman." The position, in my mind, created a tension with the lesbian-gay-bisexual-transgender community that affirmed my bona fides as a "straight." Only after the crisis that resulted in my resignation, when public opinion no longer mattered, did I realize the importance and legitimacy of same-sex marriage."