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

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Submission to Inquiry into Queensland Civil Partnerships Bill

UPDATE 6 January 2016:

 

The Legal Affairs and Community Safety Committee tabled its report in Queensland Parliament on 17 November 2015[i].

 

The cross-party Committee failed to support the Bill: “[i]n this instance the committee was not able to reach a majority decision on a motion to recommend that the Bill be passed.”[ii]

 

Liberal-National MPs on the Committee opposed the reintroduction of civil partnerships, and optional ceremonies, to such an extent that they did not even allow submissions and relevant evidence to be included as part of the main report – this information was only included as part of the Government Members Statement of Reservation.

 

It was therefore only because of ALP Committee Members Mark Furner, Jim Madden and Mark Ryan that we know 27 of the 29 submissions made were in favour of reintroducing civil partnerships.[iii]

 

Government Members also reported that, as at 4 November 2015, 6,856 mixed-sex couples had taken advantage of Queensland civil partnership/registered relationship schemes, compared to only 1,227 same-sex couples (thus demonstrating the need to retain alternative relationship recognition options even after marriage equality is finally legislated federally).

 

I am also thankful that Government MPs saw fit to include two quotes from my personal submission:

 

  • “The decision to abolish civil partnership ceremonies, and the haste with which it was achieved, was an unjustified, divisive and mean-spirited act – and I commend the current Queensland Government for taking steps to undo the damage that was done three years ago” on page 12, and

 

  • “In my view, the term ‘civil partnership’ is a much more accurate description of the relationship which exists within couples who wish to have their partnership formally recognised under state law, whereas, to me, ‘registered relationship’ is a more sterile term which merely describes the process of recognition rather than the relationship itself” on page 19 of the report.

 

The Bill was then debated in Queensland’s Legislative Assembly on Thursday 3 December 2015. It was supported by all Labor MPs as a piece of Government legislation.

 

Somewhat surprisingly, given the behaviour of their MPs on the Legal Affairs and Community Safety Committee, the LNP offered a conscience vote to its MPs and half chose to exercise their vote to support the Bill, meaning that it passed by a large majority: 64 votes in favour, compared to only 22 votes against.

 

Once again, I am grateful that Government MPs quoted my submission – both the Member for Brisbane Central, Ms Grace Grace, and the Member for Ipswich West, Mr Jim Madden, used the first quote highlighted above.

 

The Relationships (Civil Partnerships) and Other Acts Amendment Act 2015 received Royal Assent on 17 December 2015, and its provisions, restoring civil partnerships and once again allowing couples to hold a formal civil partnership ceremony if they so choose, will commence sometime early this year.

 

Thankfully, one sad, recent chapter of Queensland’s LGBTI history is now closed. Although there remain a variety of areas which still require action by the Palaszczuk Government, including (among others):

 

  • Equalising the age of consent for anal intercourse
  • Introducing adoption equality
  • Abolishing the homosexual advance or ‘gay panic’ defence and
  • Expunging historical homosexual convictions.

 

ORIGINAL POST:

Submissions to the Parliamentary Inquiry into Queensland’s Relationships (Civil Partnerships) and Other Acts Amendment Bill 2015 close tomorrow (Monday 19 October 2015). Full details on the inquiry, including how to submit, can be found here: <https://www.parliament.qld.gov.au/work-of-committees/committees/LACSC/inquiries/current-inquiries/07-RelationshipsCPOAAB15 Here’s my own submission:

Research Director

Legal Affairs and Community Safety Committee

Parliament House

George St

Brisbane QLD 4000

lacsc@parliament.qld.gov.au

Sunday 18 October 2015

Dear Committee Members

INQUIRY INTO THE RELATIONSHIPS (CIVIL PARTNERSHIPS) AND OTHER ACTS AMENDMENT BILL 2015

Thank you for the opportunity to provide a submission to this inquiry that is considering the details of the Relationships (Civil Partnerships) and Other Acts Amendment Bill 2015.

I write in support of the Bill, for two main reasons:

  1. The term ‘civil partnerships’ is strongly preferred when compared to the term ‘registered relationships’.
  2. The Act restores the right of couples to enter into a civil partnership by holding a civil partnership ceremony if they so choose.

The first point may seem comparatively minor, considering it relates only to nomenclature, but terminology is important, particularly when it describes something as personal as the relationship between two members of a couple.

In my view, the term ‘civil partnership’ is a much more accurate description of the relationship which exists within couples who wish to have their partnership formally recognised under state law, whereas, to me, ‘registered relationship’ is a more sterile term which merely describes the process of recognition rather than the relationship itself.

It is also my view that the term civil partnership is more likely to be understood, and accepted, by members across the community, whereas the term registered relationship is less likely to attract widespread social acceptance from others.

The second reason why I support the Relationships (Civil Partnerships) and Other Acts Amendment Bill 2015 is more substantive, and that is because it restores the ability of couples to enter into a civil partnership by holding a civil partnership ceremony.

Importantly, it is not compulsory – couples that wish to pursue this option will be able to do so, while other couples will be able to enter into a civil partnership without holding a ceremony.

I wholeheartedly agree with the description of this reform contained in the letter from the Director-General of the Department of Justice and Attorney-General, Mr David Mackie, to the Committee dated 1 October 2015:

“This is being done to support the dignity and equality of each and every Queenslander by giving them the opportunity to formally declare their commitment to their significant.”

In fact, it is difficult to conceive any rational justification to oppose these provisions – after all, who would want to actively deny their fellow citizens the choice to hold a civil partnership ceremony, if that is what the couple desired?

And yet, that is exactly what the majority of Queensland Members of Parliament did in June 2012, voting to strip away the ability of these couples to hold a formal ceremony. Not only that, the removal of these rights was such a high priority for the (then) newly-elected Newman Liberal National Government that is was enacted within three months of its landslide victory.

The decision to abolish civil partnership ceremonies, and the haste with which it was achieved, was an unjustified, divisive and mean-spirited act – and I commend the current Queensland Government for taking steps to undo the damage that was done three years ago.

I also commend the Palaszczuk Labor Government because, in introducing the Relationships (Civil Partnerships) and Other Acts Amendment Bill 2015, it is doing what it can within the powers of a state government 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, 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, it is pleasing to see a state government providing the opportunity for all couples, including LGBTI couples, to enter into civil partnerships – and offering the choice to hold a 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 will remain an important option for those couples who do not wish to marry for whatever reason (and that includes both cisgender heterosexual couples, and LGBTI couples).

For all of these reasons, I support the Relationships (Civil Partnerships) and Other Acts Amendment Bill 2015, and urge Committee Members, and indeed all Queensland MPs, to ensure it is passed by the Parliament as a matter of priority.

Finally, I note that the renaming of civil partnerships, including restoring the right of couples to enter into a civil partnership by holding a civil partnership ceremony if they so choose, is just one of several important measures which are required to ensure LGBTI people are finally treated equally under Queensland law.

Other necessary reforms include abolition of the gay panic defence, the introduction of adoption equality, the equalisation of the age of consent for anal intercourse and the expungement of historical convictions for gay sex. I look forward to these issues, and more, being addressed by the Queensland Parliament in the near future.

Thank you in advance for considering this submission. Should the Committee require additional information, or wish to clarify any of the information above, I can be contacted at the details below.

Sincerely

Alastair Lawrie

Queensland Attorney-General Yvette D'Ath introduced the Relationships (Civil Partnerships) and Other Acts Amendment Bill 2015 in September.

Queensland Attorney-General Yvette D’Ath introduced the Relationships (Civil Partnerships) and Other Acts Amendment Bill 2015 in September.

[i] Final Report: https://www.parliament.qld.gov.au/documents/committees/LACSC/2015/07-RelationshipsCPOAAB15/07-rpt-014-17Nov2015.pdf

[ii] Ibid, p4.

[iii] Ibid, p12.