Relationship registries
This letter from the TGLRG to the Human Rights and Equal Opportunity Commission was sent on 30.8.07.
Graeme Innes
Human Rights Commissioner
Human Rights and Equal Opportunity Commission
re: Relationship Registries
Dear Mr Innes,
The Same-sex: same entitlements report, recently-released by the Human Rights and Equal Opportunity Commission, is an important step towards eliminating discrimination against same-sex couples. We commend the HREOC and you personally on the report.
However, we are concerned by aspects of the report related to relationship registries, such as the registry which currently operates in Tasmania.
Our concerns fall into three areas: firstly misrepresentations of the Tasmanian registry, secondly an under-estimation of the importance of registries, and thirdly the status of state registered relationships in federal law.
1) Misrepresentations of the Tasmanian relationship registry
Section 4.5.1 (a) of the Same-sex: same entitlements report states
“Registration of a relationship does not confer legal rights in itself but it may assist in demonstrating the existence of a de facto relationship.”
This is not true. In Tasmania the only requirements for entering into a registered relationship are that the individuals concerned are residents, over the age of 18, and not already married or in another registered relationship. It is not a requirement that individuals who sign a Deed of Relationship be in an existing, unformalised relationship. As with a civil union or a marriage, the registration of a relationship allows the intending partners immediate access to all relationship rights, including those partners who may previously have had none of these rights at all.
Of course, some partners in an existing, unformalised relationship may register a Deed of Relationship in order to prove that their union, in fact, exists. But by doing this they create, in law, an entirely new relationship.
A footnote to this section states that take-up of registries in Tasmania and elsewhere are low (the implication being that this is because the role of registries is simply to certify existing relationships), and that take up is much higher amongst men and in urban areas.
The figures cited from Tasmania were over a year and a half old when the Report was published. In that time the number of registered couples has almost doubled, reflecting growing familiarity with the benefits of what was, after all, Australia’s first formal recognition scheme for unmarried couples. The number of registered relationships in Tasmania is now roughly proportional with the number of couples who have entered into civil unions in New Zealand.
Moreover, since its inception the number of male and female couples registering under the Tasmanian scheme has been roughly equal. We do not have figures for their geographic dispersal, but anecdotal evidence would also suggest a roughly equal spread between urban and rural areas.
2) The importance of registries generally
Section 4.5.3 of the Report says that formal recognition of same-sex relationships is “helpful but not necessary” when it comes to accessing financial entitlements.
The argument is that some couples may not formalise their relationships, and therefore presumptive recognition, in this case as “de facto partners”, is the preferred option for ensuring as many couples as possible have equal legal protections.
We agree that it is important for there to be presumptive recognition. However, we believe it is equally important there be an opportunity for couples to access relationship entitlements through a formal process such as registering their relationship.
Two practical reasons for this are,
a) couples should be able to access relationship rights without necessarily fulfilling the criteria laid down for presumptive recognition, including cohabitation for a fixed period, and
b) there are some entitlements, including those granted by foreign governments, which are available to formally recognised couples, but not to couples in unformalised relationships
We note that the Same-sex: same entitlements inquiry received evidence backing the practical necessity of formal recognition. This evidence came from itinerant partners for whom fixed-period cohabitation was impossible and formal recognition preferable, and from same-sex partners who have found it easier to secure their financial entitlements from the British Government through the registration of their relationship in Tasmania.
We also note that there was support for the recognition of formalised relationships in federal law from other groups making submissions to the inquiry. These groups included ACT GLBTI advocacy group, Good Process.
Clearly, there exists both an important role and significant support for formal recognition in securing the relationship entitlements of same-sex partners.
3) The status of state registered relationships in federal law
The Same-sex: same entitlements report is quite specific about what kind of same-sex relationships will be recognised under federal law. It’s strong preference is for presumptive or de facto partners to be recognised, and is largely indifferent to couples in any kind of formalised relationship.
Section 4.6.2 of the Report provides a model for defining the existence of a de facto relationship which includes an option referring to registered couples. However, in this option a state registered relationship is only seen as evidence of the existence of a de facto relationship in federal law. It is not recognised as a relationship in its own right. (We are also concerned that the wording of this option suggests it only be taken up if states other than Tasmania adopt relationship registries. The last time we looked Tasmania was a full and equal member of the federation).
This approach is consistent with the mis-characterisation of registered relationships in other parts of the Report (as we have explained registered relationships are wrongly seen as evidence of an existing relationship and as having little practical value in themselves).
Just as we object to the Report’s misconceptions about the nature of registered relationships, so we object to the role assigned to registered relationships in federal law based on these misconceptions.
In our view, registration of a relationship at a state level should provide the registering couple with full and equal entitlements in federal law as a registered couple.
Registered couples should not be compelled to fulfill further criteria, such as those associated with de facto partnerships, in order to qualify for relationship entitlements in federal law. The absurdity of such a situation is highlighted by the fact that some foreign governments, including that of the United Kingdom, automatically credential Tasmanian registered relationships as civil partnerships, with all the same entitlements in UK law as married couples.
Nor should a couple’s state Deed of Relationship simply qualify them to be considered federal de facto partners as per the option in section 4.6.2. Couples register precisely because they wish to formalise their unions and not be in an unformalised relationship. To then compel these couples to obtain federal relationship rights by reverting to an unformalised union is dismissive of the choice they have made.
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.
In conclusion, we feel that the errors, omissions and conclusions cited above unfairly diminish Tasmania’s relationships registry and registries generally.
This is a concern because it potentially demeans the legal and social status of partners in Tasmanian registered relationships.
It is also of concern as debate grows over state-based registries in other states and policy-makers look to HREOC for guidance.
Most of all, it is of concern as the Commonwealth moves toward greater recognition of same-sex relationships.
For these reasons we ask that, if possible, you amend the Report in response to the concerns we have raised. We also ask that in future publications dealing with registries you seek out accurate and up-to-date information from authoritative sources including the Tasmanian Department of Justice, and that in your publications registered relationships are treated equally with other forms of legally-entitled unions.
Yours Sincerely,
Rodney Croome and Wayne Morgan
Rodney Croome
Campaign Co-ordinator
Tasmanian Gay and Lesbian Rights Group
0409 010 668
Wayne Morgan
Senior Law Lecturer
Australian National University
0411 134 899
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Please find below the three sections of the Same-sex: same entitlements report cited above.
4.5.3 Formal relationship recognition is helpful but not necessary to access financial entitlements
Almost all of the financial entitlements discussed throughout this report are available to opposite-sex couples, whether or not they are married. The goal of this Inquiry is to ensure that same-sex couples also have access to all financial entitlements, whether or not they are married.
Even if there were formal relationship recognition schemes for same-sex couples, only some same-sex couples will choose to formalise their relationships. This is no different to opposite-sex couples, only some of whom choose to formalise their relationships.
So, while marriage, civil unions or relationship registration might help some same-sex couples prove a genuine relationship, formal recognition is not, and should not be a necessary prerequisite.
Thus, the following recommendations focus on ensuring that same-sex couples can access the same financial entitlements available to opposite-sex couples – irrespective of formal recognition schemes.
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4.5.1 (a) Relationship registration for same-sex couples
Registration of a relationship does not confer legal rights in itself but it may assist in demonstrating the existence of a de facto relationship.
Tasmania introduced registration for ‘significant relationships’ under the Relationships Act 2003 (Tas). Both same-sex and opposite-sex couples can register their relationship.[i] Some city councils have also introduced relationship registration schemes.[ii]
However, it seems that few couples have registered under these schemes.[iii]
[i] Relationships Act 2003 (Tas), s 11(1).
[ii] In September 2005, the City of Sydney adopted a Relationships Declaration Program. While making a relationship declaration does not confer legal rights in the way marriage does, it may be used to demonstrate the existence of a de facto relationship within the meaning of the NSW Property (Relationships) Act 1984 (NSW) and other legislation: City of Sydney, Relationship Declaration Program Information Pack, 2005, p2. Melbourne City Council launched a Relationship Declaration Register on 2 April 2007: City of Melbourne, Relationship Declaration Register, http://www.melbourne.vic.gov.au/info.cfm?top=208&pg=3483, viewed 20 April 2007.
[iii] As at 1 January 2006, 57 couples had registered a ‘significant relationship’ in Tasmania. Of these relationships, 45 were same-sex couples (24 gay male and 21 lesbian couples) and 12 were opposite-sex couples: J Millbank, ‘Lesbian and Gay Families in Australian Law – Part One: Couples’, Federal Law Review, vol 34, no 1, 2006, p27. There is evidence of a low take up of registration regimes internationally, ‘with a much lower take up by women, and a high urban concentration’: K Anthony and T Drabsch, Legal Recognition of Same-Sex Relationships, NSW Parliamentary Library Research Service, Briefing Paper No. 9/06, June 2006, pp4-5.
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4.6.2 (b)
a) A model definition of ‘de facto relationship’ and ‘de facto partner’
The following is the definition of ‘de facto relationship’ which the Inquiry recommends be introduced into federal laws conferring financial and work-related entitlements.
(1) ‘De facto relationship’ means the relationship between two people living together as a couple on a genuine domestic basis.
(2) In determining whether two people are in a de facto relationship, all the circumstances of the relationship must be taken into account, including any of the following:
(a) the length of their relationship
(b) how long and under what circumstances they have lived together
(c) whether there is a sexual relationship between them
(d) their degree of financial dependence or interdependence, and any arrangements for financial support, between or by them
(e) the ownership, use and acquisition of their property, including any property that they own individually
(f) their degree of mutual commitment to a shared life
(g) whether they mutually care for and support children
(h) the performance of household duties
(i) the reputation, and public aspects, of the relationship between them
(j) the existence of a statutory declaration signed by both persons stating that they regard themselves to be in a de facto relationship with the other person.
(3) No one factor, or any combination of factors, under (2) is necessary to establish a de facto relationship.
(4) A de facto relationship may be between two people, irrespective of gender.
(5) Two people may still be in a de facto relationship if they are living apart from each other on a temporary basis.
If the various states and territories adopt a relationship registration scheme (like that which exists in Tasmania), subsection (6) could be added to the definition of ‘de facto relationship’ along the following lines:
(6) If a relationship is registered under a state or territory law allowing for the registration of relationships, registration is proof of the relationship from that date.
If the various states and territories adopt a civil union scheme, subsection (7) could be added along the following lines:
(7) If two people enter into a civil union under a state or territory law, evidence of that civil union is proof of the relationship from that date.
If relationship registration or civil unions become relevant to the definition, subsection (3) should change to read:
(3) No one factor, or any combination of factors, under (2), (6) or (7) is necessary to establish a de facto relationship.
The Inquiry further recommends the following definition of ‘de facto partner’:
‘de facto partner’ means one of two people in a de facto relationship.