Relationship registries (II)
This letter from the TGLRG was sent to Human Rights Commission, Graeme Innes, on 10.10.07.
Human Rights Commissioner
Human Rights and Equal Opportunity Commission
C/o Vanessa Lesnie
Director, Human Rights Section
re: “Entitled to Equality” inquiry and relationship registries
Dear Mr Innes,
On August 30th we wrote to you expressing our concern about aspects of the “Same-sex: same entitlements” report dealing with state relationship registries.
Pursuant to that, we would like to raise the following concerns relating to your evidence, as Human Rights Commissioner, to the recent federal parliamentary “Entitled to Equality” inquiry.
In your evidence to this inquiry you continued to support state registered relationships being non-conclusive evidence for the existence of de facto relationships in federal law. However, you failed to support either state registered relationships being conclusive evidence for the existence of de facto relationships or the federal recognition of state registered relationships in their own right. You did this despite these options being raised and supported in written submissions to the inquiry from both the Tasmanian Gay and Lesbian Rights Group and the Victorian Gay and Lesbian Rights Lobby.
One reason you cited for your position was “that people forget to deregister after a relationship breaks down” (the relevant transcript is enclosed below). It would appear that, on the basis of this claim, the inquiry opted to make a state registered relationship a rebuttable presumption for the existence of a de facto relationship under federal law.
We are not aware of couples who “forget to deregister after a relationship breaks down”. If you have concrete evidence of this we would appreciate seeing it.
More importantly, we are not sure what relevance this has to the full and equal recognition of state registered relationships in federal law. Married couples whose relationship is no longer marriage-like, but who “forget” to divorce, still have full matrimonial rights. Why should there be a different standard for registered couples?
Further, the virtue of the Tasmanian relationship registry is that it allows any two adults to obtain and retain a Deed of Relationship regardless of whether their relationship is conjugal or companionate or, crucially, shifts from one to the other. The Tasmanian relationship registry bases entitlements on an individual’s own choice of significant partner. The state has a very limited role in determining who is or should be presumed to be in a relationship by setting criteria for partners to fulfil, in the way it does with de facto relationships.
In short, it is not for anyone but the partners involved to determine if a registered relationship has “broken down”. Their Deed of Relationship makes the existence of their legally-entitled relationship an irrebuttable fact in state law. It sets a bad precedent, and is inconsistent, unfair and demeaning that the same Deed should be contestable in federal law.
As you can see, the philosophical and legal basis for a state registered relationship is significantly different to that of a presumed de facto relationship. It is not only wrong but offensive to judge registered couples by de facto standards of presumption and proof.
This may be the reason why the Labor Party has already gone beyond the position adopted in the “Same sex: same entitlements” report, and in the “Entitled to Equality” report, by putting forward a federal-law definition of de facto relationship which provides that a state Deed of Relationship is conclusive and sufficient proof of the existence of a federal de facto relationship (a copy is enclosed below).
As we have noted previously, we would prefer to see registered relationships recognised in their own right, and not as proof of the existence of another type of relationship. Nonetheless, Labor’s policy is a step towards greater respect and equity for registered partners.
Along with many gay, lesbian, bisexual and transgender Australians we continue to admire and applaud your advocacy for equal entitlements for same-sex couples.
For this reason we seek an opportunity to discuss with you the points we have raised in this letter and our letter of August 30th.
We would be available to do this by phone at a time convenient to you.
Thank you for your time and we look forward to your reply,
Tasmanian Gay and Lesbian Rights Group
0409 010 668
Senior Law Lecturer
Australian National University
0411 134 899
“Entitled to Equality”, Transcript of hearing, p62, Appendix 2, evidence from Commissioner Innes
“We recognise the value of relationship registers. In fact, we include relationship registers as one of several possible criteria to consider in determining the existence of a de facto relationship. None of those criteria are conclusive on their own….One of the problems we heard about relationship registers is that people forget to deregister after a relationship breaks down….Relationships take many forms and can’t be defined by any one set of criteria, and the common law also has its own principles…And judges should retain some discretion in terms of the determination of relationships.”
Senate Hansard, 20.9.07, amendments proposed by Senator Ludwig to the Judges Pensions Bill 2007
Senator LUDWIG (Queensland) (9.34 pm)—by leave—I move opposition amendments (1) and (2) on sheet 5300 revised:
(1) Schedule 1, page 3 (after line 4), before item 1, insert:
1AA Subsection 4(1)
Repeal the definition of child of marital relationship.
(2) Schedule 1, page 3 (after line 6), item 1, before the definition of salary, insert: de facto relationship means:
(a) the relationship between two people living together as a couple on a genuine domestic basis;
(b) 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:
(i) the length of their relationship;
(ii) how long and under what circumstances they have lived together;
(iii) whether there is a sexual relationship between them;
(iv) their degree of financial dependence or interdependence, and any arrangements for financial support, between or by them;
(v) the ownership, use and acquisition of their property, including any property that they own individually;
(vi) their degree of mutual commitment to a shared life;
(vii) whether they mutually care for and support children;
(viii) the performance of household duties;
(ix) the reputation, and public aspects, of the relationship between them;
(x) 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;
(c) no one factor, or any combination of factors, under paragraph (b) or (f) is necessary to establish a de facto relationship;
(d) a de facto relationship may be between two people, irrespective of gender;
(e) two people may still be in a de facto relationship if they are living apart from each other on a temporary basis;
(f) 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.