Submission to Review of NSW Relationships Register Act 2010

Update 18 January 2017:

In progressively updating posts of my various law reform submissions from 2016, this one is the easiest. Why? Well, because it seems like nothing has actually happened in response to this review.

The NSW Department of Justice homepage for the ‘Statutory review of the Relationships Register Act 2010 (NSW)’ notes that submissions closed on Wednesday 6 January 2016.

It even includes links to the seven submissions it received, from the Anti-Discrimination Board of NSW, Chief Justice of NSW, Jamie Gardiner, NSW Gay & Lesbian Rights Lobby, ACON and the Law Society of NSW (plus yours truly – see below).

And then? Nothing. No updates for more than 12 months. Hopefully 2017 sees at least some action taken in response to this review, including potentially changing the name from registered relationship to civil partnership, especially given the ongoing failure of the Turnbull Government to take action on marriage equality federally.

Original Post:

The NSW Relationships Register Act 2010 is currently under review. Details of the review can be found here, with public submissions closing Wednesday January 6 2016. The following is my submission:

Director

Civil Law and Cabinet

NSW Department of Justice

GPO Box 31

Sydney NSW 2001

c/- policy@justice.nsw.gov.au

Tuesday 5 January 2016

To whom it may concern

SUBMISSION TO REVIEW OF RELATIONSHIPS REGISTER ACT 2010 (NSW)

Thank you for the opportunity to make a submission as part of the five year statutory review of the NSW Relationships Register Act 2010 (‘the Act’).

In this submission I would like to make two main recommendations to improve the Act:

  1. The term ‘registered relationship’ should be replaced by the term ‘civil partnership’.
  2. The Act should be amended to allow people entering into civil partnerships to hold a formally recognised civil partnership ceremony if they so choose.

Nomenclature

What a relationship is called, both in society and under the law, is important for many, if not most, people.

Unfortunately, the term that is currently used in the Act – ‘registered relationship’ – is unsuitable for its purpose. This is because it fails to capture the fundamental nature of the relationship that it purports to describe, instead reflecting the process in which the relationship is recorded.

In my view, the NSW scheme adopts the worst terminology of all of the state and territory schemes that provide for the formal recognition of relationships between couples (outside of marriage).

Other state and territory approaches include:

  • ‘Significant relationships’ in Tasmania[i]
  • Both ‘civil partnerships’[ii] and ‘civil unions’[iii] in the Australian Capital Territory (ACT)
  • ‘Domestic relationships’ in Victoria[iv] and
  • ‘Civil partnerships’ in Queensland[v].

Of these options, I recommend that the NSW scheme adopt the term ‘civil partnership’, both because it would be consistent with Queensland and the ACT, and also because it is likely to be understood, and accepted, by members across the community, including by people within the lesbian, gay, bisexual, transgender and intersex (LGBTI) community.

Alternatively, in my opinion any of the other terms (significant relationships, domestic relationships and civil unions) would be preferable to the current name ‘registered relationships’ (although adopting ‘civil unions’ may imply that a ceremony must be held in order to recognise that relationship, as it is in the ACT, which is an outcome that I submit should be avoided – see below).

Recommendation 1: The term ‘registered relationship’ should be replaced by the term ‘civil partnership’.

Ceremonies

The second improvement to the Act that I suggest would be the introduction of an ability for couples to hold a formally recognised civil partnership ceremony if they so choose.

Currently, the Relationships Register Act 2010 makes no provision for optional ceremonies, which differentiates it from the approach adopted in other state and territory schemes:

  • Tasmania allows for ceremonies to be held on the day on which the deed of relationship is registered[vi]
  • The ACT does not provide for formal ceremonies as part of its civil partnership scheme[vii], but a ceremony is required in order to enter into a civil union[viii]
  • Victoria does not currently provide for a formal ceremony, although this issue is being actively considered as part of debate of the Relationships Amendment Bill 2015 which is currently before Parliament[ix] and
  • The Queensland Palaszczuk Labor Government recently reintroduced optional ceremonies for civil partnerships, reversing their abolition by the previous Newman Liberal-National Government[x].

The introduction of an optional ceremony as part of the NSW relationship scheme would therefore bring it into closer alignment with other, existing schemes.

Much more importantly, however, it provides an avenue for couples to have their relationships recognised, through a formal ceremony, and in front of their families and friends, where that couple so desires.

Introducing such a scheme would show that the state of NSW is doing what it can, within the powers of a state parliament, to recognise the diversity of relationships that exist in contemporary society.

With the High Court finding in December 2013 that only the Commonwealth Parliament has the power to legislate for marriage equality[xi], but the majority of Members and Senators of that Parliament showing their continued unwillingness to recognise the full equality of lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians, I believe it is incumbent upon state and territory parliaments to provide the opportunity for all couples, including LGBTI couples, to enter into civil partnerships and to offer the choice to hold a formal civil partnership ceremony, too.

Even after marriage equality is finally enacted by our recalcitrant federal parliamentarians, the ability to enter into a civil partnership under state law would remain a material option for those couples who do not wish to marry for whatever reason (and that includes both cisgender heterosexual couples, and LGBTI couples) – and these couples should retain the ability to hold a ceremony if they desire.

Importantly, I do not believe holding such a ceremony should be compulsory – couples that wish to pursue this option should be able to do so, while other couples should be able to enter into a civil partnership without holding a ceremony.

Recommendation 2: The Act should be amended to allow people entering into civil partnerships to hold a formally recognised civil partnership ceremony if they so choose.

Thank you for taking this submission into account as part of the five year statutory review of the NSW Relationships Register Act 2010.

Sincerely

Alastair Lawrie

[i] Under the Relationships Act 2003.

[ii] Domestic Relationships Act 1994

[iii] Civil Unions Act 2012

[iv] Relationships Act 2008

[v] Under the recently passed Relationships (Civil Partnerships) and Other Acts Amendment Act 2015, which will take effect later in 2016.

[vi] From the Tasmanian Births, Deaths and Marriages website: http://www.justice.tas.gov.au/bdm/relationships/ceremonies

[vii] From the Access Canberra website: https://www.accesscanberra.act.gov.au/app/answers/detail/a_id/1694/~/civil-partnership-registration

[viii] Access Canberra: https://www.accesscanberra.act.gov.au/app/answers/detail/a_id/2096/kw/civil%20unions

[ix] Details of the Bill can be found here: http://www.parliament.vic.gov.au/static/www.legislation.vic.gov.au-bills.html This includes an amendment, adopted by the Legislative Council, that “[t]he Registrar may conduct a ceremony in connection with the registration of a registrable domestic relationship under this section”.

[x] Relationships (Civil Partnerships) and Other Acts Amendment Act 2015

[xi] The Commonwealth of Australia v The Australian Capital Territory [2013] HCA 55: http://eresources.hcourt.gov.au/showCase/2013/HCA/55

George Brandis, Tony Abbott, Marriage Equality & CNIs

Marriage Equality Red Background Rings

This week saw the passage of marriage equality in Uruguay, and then New Zealand. Next week will witness France adopt marriage equality legislation. These are the 12th, 13th and 14th countries around the world to have done so.

This spate of activity has provided renewed focus on the issue of marriage equality within Australia. In particular, it has prompted more people to scrutinise the position of Tony Abbott and the Liberal-National Opposition, because they will almost inevitably form Government after the election on September 14th.

Some people have pointed to Tony Abbott’s recent comments to say that he is softening his stance of marriage equality. Specifically, he has said that the matter will be debated inside the Coalition party-room after the election, with the possibility that they may adopt a conscience vote on the matter.

I disagree that this is necessarily a positive development. Instead, I think Abbott’s position is a complete cop-out. It avoids legitimate scrutiny in the lead-up to the poll, leaving voters unclear exactly what he, and his Government, will do once in office.

It also means that people and groups who oppose marriage equality can exert their homophobic influence behind closed doors to ensure that there is no progress. No doubt bigots like the Australian Christian Lobby will be there, actively lobbying in secret, with their decidely un-christian views.

The potential outcomes of this ‘evasive manoeuvre’ by Abbott include that the Coalition’s policy does not change, and that there is therefore no conscience vote next term. We could also end up with civil unions, a so-called compromise which basically nobody wants, but which seems to be favoured by people like Warren Entsch, who has traditionally been one of the more progressive Liberal MPs.

In fact, civil unions seem to me like the most likely outcome of an incoming Liberal-National Government. I genuinely can’t see marriage equality happening under someone as fundamentally conservative as one T Abbott, and that is why I fear we may still be three terms away from Australia-wide reform. Imagine how many countries we will have fallen behind by then?

But, there is one scenario in which we could even go backwards in terms of marriage equality in Australia. I know, that doesn’t seem possible, but there is actually one marriage reform which has been implemented by the current Labor Government which could be wound back under a Coalition Government, in what would be a worst-case scenario.

This would involve the incoming Attorney-General, who will most likely be Senator the Hon George Brandis SC, revoking the January 2012 decision by the then Labor Attorney-General, the Hon Nicola Roxon MP, which allowed Australian LGBTI-inclusive couples to obtain Certificates of No Impediment (CNIs) to marry overseas (in the countries that require them).

In fact, this would simply be the Coalition reverting to the policy which they adopted from 2004 to 2007, when, under then Attorney-General, the Hon Philip Ruddock MP, the Liberal-National Government refused to issue CNIs to same-sex couples, thereby cruelling the chances of most Australian LGBTI-inclusive couples from taking advantage of overseas developments.

To be honest, I don’t know how likely this worst-case scenario is. I would hope that we have come a long way since the end of the Howard era in 2007, and that an incoming Abbott regime would not wind back this particular right.

On the other hand, many Queenslanders probably thought last year that, even if he wasn’t going to be a pro-equality champion, Campbell Newman and the LNP wouldn’t wind back existing LGBTI rights. How wrong they were.

Anyway, that is why I have written the following letter to Shadow Attorney-General Brandis, and copied it to Mr Abbott. Basically, I am asking them to support marriage equality, through party policy or at least a conscience vote. But, if they are unable to do either of those, to at the very least continue to grant CNIs to Australian LGBTI-inclusive couples to marry overseas.

I don’t know what kind of reply to expect. But, as always, whatever I get I will post here.

This is the text of the letter which I sent yesterday:

Dear Senator Brandis

Marriage Equality and Certificates of No Impediment

I am writing to you about the issue of marriage equality, and specifically the policy which the Liberal-National Opposition will take on this issue to the Federal election to be held on 14 September 2013.

I am a 34 year old man who has been together with my wonderful fiancé for almost 5 years – and we have been engaged to be married for more than 3 of those.

All we want is to be able to have a legally-recognised wedding ceremony in front of our family and friends in our own country. All we want is exactly the same rights which other Australians already enjoy.

I strongly encourage the Liberal-National Opposition to support marriage equality as formal policy ahead of the September poll. This would show that the Liberal-National Coalition accept lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians as first-class citizens, deserving of both respect and full legal equality.

Failing that, and as a bare minimum, the Liberal and National Parties should publicly commit to holding a conscience vote on this issue in the next term of Parliament, so that those MPs who wish to support LGBTI equality are free to do so. There have already been several Liberal MPs and candidates who have expressed their desire to take advantage of a non-binding vote to support marriage equality, should one be granted.

Finally, I have a specific question relating to the Attorney-General portfolio. In 2005, your Coalition colleague, the Hon Philip Ruddock MP, as Attorney-General prohibited the granting of Certificates of No Impediment (CNIs) to Australian LGBTI-inclusive couples who wished to marry overseas.

This ban remained in place until overturned by the Hon Nicola Roxon MP on 1 February 2012. This allows Australians couples, and those LGBTI-inclusive couples which include dual or multiple nationalities, to take advantage of the growing number of countries to have implemented marriage equality.

Just this month, Uruguay, New Zealand and France have become the 12th, 13th and 14th countries to accept marriage equality, as part of a growing worldwide movement. Even if the Australian Parliament does not grant marriage equality in the near future, should not mean we are prevented from taking advantage of the equality that already exists overseas.

My question is this: Do you commit a Liberal-National Government to continuing to grant CNIs to LGBTI-inclusive couples who wish to marry overseas?

I would appreciate your reply on all the issues raised in this letter, but in particular, on whether a Liberal-National Government would continue to grant CNIs to all Australian couples, irrespective of sexual orientation, gender identity and intersex status.

Thank you in advance for considering this important issue.

Yours sincerely,

Alastair Lawrie