Relationships Bill
RELATIONSHIPS BILL
Second reading
Mr CLARK (Box Hill) — The Relationships Bill is a bill to allow persons to register relationships as ‘couples’ and to enter into relationship agreements, to provide for maintenance orders and to extend property adjustment provisions for domestic partnerships.
Under the bill two persons who are in a registrable relationship may apply to the registrar of births, deaths and marriages for that relationship to be registered, provided they live in Victoria, are not married — to each other or anyone else — and are not in another registered or registrable relationship.
A ‘registrable relationship’ is defined as a relationship between two adults who are not married to each other but are a couple where one or each of them provides personal or financial commitment and support of a domestic nature for the material benefit of the other, irrespective of genders and whether or not they are living under the same roof, other than for fee or reward or on behalf of another person or organisation. The term ‘couple’ is not defined in the bill.
The bill provides that certificates of registration may be issued. No ceremony is required. Registration is revoked by the death or marriage of either person, or 90 days after the lodgement of an application by either person for revocation of registration.
Before, during or after a domestic relationship, two people may enter into a relationship agreement providing for financial matters connected with their domestic relationship.
A court may vary or set aside a relationship agreement in certain circumstances but may not alter property interests in a way inconsistent with a relationship agreement if the agreement was formally entered into with independent legal advice.
The bill re-enacts provisions currently in the Property Law Act on the power of courts to adjust the property interests of certain domestic partners and extends the criteria applied by the courts to include the financial resources and needs of each partner.
The bill also provides that a court may make an order for maintenance against a domestic partner if the court is satisfied the applicant is unable to support himself or herself adequately due to the circumstances of the relationship.
The opposition parties have received a range of detailed and considered views, and we thank all those groups and individuals who have provided submissions to us. The Victorian Gay and Lesbian Rights Lobby supports the legislation but believes there should be a legally effective ceremony option, mutual recognition between jurisdictions and a lower registration fee. It says:
A relationship register provides practical benefits — by making it easier for couples who are in a domestic relationship to demonstrate their status in order to access existing benefits. It also confers symbolic benefits through increased acceptance of same-sex relationships. We also believe a relationship register is necessary for those couples who are either legally not allowed to, or do not wish to, marry.
Civil Union Action has informed us that it supports the bill but it also believes there should be an option for a ceremony, there should be same-sex adoption, and that the registration opportunity should be available to a broader range of couples.
The Law Institute of Victoria supports the registration but considers that the registration age should be lowered to the age of 16 with court approval, that it should be made clear that the receipt of a carer allowance by a member of a couple does not disqualify them from registration, and that there should be interstate recognition and other changes.
The Australian Christian Lobby has raised concerns which, as far as I am aware, remain unresolved. The legislation is opposed by Endeavour Forum, the Australian Family Association, the Festival of Light, SaltShakers, the Melbourne Catholic Lawyers Association and the Catholic Women’s League.
It is also opposed by the Ad Hoc Interfaith Committee, which has members from bodies including the John Paul II Institute for Marriage and Family, the Institute for Judaism and Civilization, the Uniting Church’s Committee on Bioethics, the Presbyterian Church, the Good Shepherd Antiochian Orthodox Mission Parish, Ridley Melbourne Mission and Ministry College, CityLife Church, the Christian City Church and the Anglican Church.
The bill is also opposed by the Catholic Church. Archbishop Hart put many of the arguments against the bill in a homily he gave at the opening of the legal year on 29 January, when he said:
… society owes its continued survival to the family, founded on marriage. The inevitable consequence of legal recognition of same-sex unions would be the redefinition of marriage, which would become, in its legal status, an institution devoid
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of essential reference to factors linked to heterosexuality; for example, procreation and raising children.
…
A state which gives legal standing to such unions fails in its duty to promote and defend marriage as an institution essential to the common good …
The church teaches that men and women with same-sex tendencies must be accepted with respect, compassion and sensitivity and not subject to unjust discrimination.
The legal registration of relationships between same-sex couples on the other hand is a radical departure from the principle of tolerance and must be opposed.
The bill raises a wide variety of issues from many different perspectives. It raises the issues of whether the bill should provide for legally effective ceremonies as part of the registration process; whether the registration age should be lowered to the age of 16; and whether the bill simply recognises and provides for existing relationships or in fact establishes a parallel regime to marriage through marriage-like provisions on registration, maintenance, property adjustments and relationship agreements.
The bill raises issues about the messages given about commitment and the interests of children through the status conferred on various relationships by the bill. The bill also raises the issue of whether it should allow the registration of a broader range of interpersonal relationships rather than being based simply on persons registering being a ‘couple’.
In addition the bill raises a number of definitional issues and anomalies.
Unlike in Tasmania, the Victorian bill does not exclude members of the same family from registration of relationships. On the other hand, there is no suggestion that the law of incest is being altered. There is the issue of whether the receipt of a carer allowance can disqualify a relationship for registration, as has been raised by the Law Institute of Victoria.
There are issues concerning the use of two separate definitions of domestic partnership, one being a narrow definition, the other being a broader definition, and the use of criteria that are specified in relation to the broader definition in order to determine whether or not a relationship qualifies under the narrower definition. This anomaly exists under the existing legislation and it is being extended by the bill — for example, if one contrasts subclauses (1) and (2) of clause 39.
There is also the use of the broader definition for the purpose of determining eligibility for registration, and once registration has been achieved, that qualifies for recognition and status whereas previously only the narrow definition applied. For example, this is the case in relation to tax concessions connected with relationships, as is effected by item 17 of schedule 1 of the bill in relation to the Duties Act.
There are also issues that are highlighted by the reports of the Scrutiny of Acts and Regulations Committee, such as the unexplained discretion for the registrar to register or refuse to register relationships, and the wide power conferred on the registrar to conduct inquiries to verify information given in applications, including the power to require third parties to answer questions or provide information as to what they know about the relationship, subject to a penalty of over $1000 for refusing to comply.
However, beyond these definitional issues the bill involves fundamental issues about the family, about the recognition and social consequences the state gives to various forms of relationship and about the social messages being sent by legislation such as this. Many people from across the political spectrum would consider that a number of these issues go to the core of their moral and personal beliefs. The Liberal Party and The Nationals have always respected the diversity of views that may be deeply held on such issues, and the parties have decided that they should allow their members a free vote on this legislation. Accordingly the views that I am about to express on the legislation are my own views and not views being expressed on behalf of the Liberal Party and The Nationals.
In summary my view is that the bill is not a bill about overcoming inappropriate discrimination.
Rather it is a bill designed and intended to put a wide range of uncommitted relationships on a basis as close as possible to that of marriage and other committed relationships. The bill does so without requiring of those relationships the personal and social responsibilities of marriage or other committed relationships. This has very serious consequences for individuals and the community and in particular for children. It will send messages to the community that will further undermine support for marriage and other committed relationships as invaluable social institutions. Accordingly I will be voting against this legislation.
It has to be said that the Attorney-General has been speaking with a forked tongue about this legislation. He says to those who have been seeking such legislation:
…
what this bill does is to enable couples who want the dignity of formal recognition of their loving relationship to register it, to receive a certificate, and to have the security of knowing that their decision to commit to a shared life with each other is respected in Victoria.
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Indeed in his letter of 3 March to the Scrutiny of Acts and Regulations Committee, as reported by the committee yesterday, the Attorney-General went further and said the registration scheme:
… aims to provide a formal means of recognition for couples who do not marry, either because they choose not to or because they are not able to as a result of the application of the commonwealth Marriage Act 1961.
Yet at the same time as the Attorney-General is saying that, he is saying to those who have concerns about the legislation that they should not be concerned because the bill is simply about ending discrimination and allowing easier access to existing entitlements.
In fact not only the registration but the other provisions of the bill are carefully and deliberately designed to put both registered relationships and other uncommitted relationships on as close as possible a parallel footing to marriage as Victorian law can achieve, save in relation to IVF (in-vitro fertilisation) and adoption, and the Attorney-General has already announced that legislation is to come on IVF and has foreshadowed changes on adoption.
If one looks at the issue of property adjustments, until now, on the break-up of a relationship, that has been based on equity in terms of the contributions the parties have made to each other’s assets, on avoiding exploitation and on reflecting the parties’ likely views of fairness in the circumstances of the relationship. However, under the bill property adjustments will also be based on post-relationship criteria of future needs and resources, as applies in the case of break-up of marriage.
In relation to maintenance, again the criteria will to a large extent be based on future needs and resources, as applies in the case of break-up of marriage.
In the case of relationship agreements, there is no objection in principle to any two people entering a legally binding agreement in relation to property and assets, as, for example, two flatmates might do. Nor is there any objection to having such an agreement prevail over court-ordered adjustments if certain formalities are complied with. But here this mechanism of the relationship agreement is not made available to flatmates or to those in other interdependent relationships; it is only made available to those who enter into certain specified relationships and who make agreements in a way that parallels agreements relating to marriage under the commonwealth Family Law Act.
In addition, it is to be noted that the registrar of births, deaths and marriages will be managing the register created by this bill, which will bring the registration arrangement into the same office as that which administers marriage.
Overall this bill creates what may be described as marriage lite, giving to the parties virtually all of the social benefits of marriage but without the benefits to society of parties being in a committed, long-term relationships. If I can draw on some words used by the Australian Family Association, the bill’s practical effect will be to reduce marriage to just one of a range of equally valued relationship or lifestyle options. It will break the nexus with attributes of the relationship such as a shared life, commitment, faithfulness and an inherent procreative dimension.
Some people have argued that the absence of a ceremony means the relationships being registered under this bill are not being put on a par with marriage or other committed relationships. However, it is not the absence of a ceremony that causes a problem; the problem is in the status and benefits being conferred without the requirement for a commitment. It does not really matter whether one calls it a relationships register, a civil union, a civil partnership or a registered partnership. The differences between the models are minor and the overall result is the same. Ironically this is a conclusion that is reached not only by many who oppose the legislation but also by many who support the legislation.
The talk about including a separate category of caring relationships along the Tasmanian lines is a red herring. That simply results in two separate headings of registration in the one act.
It does nothing to overcome the problems of putting couple relationships with no ongoing commitment requirement on the same basis as committed relationships. It would be possible to have a law that enabled a wide variety of interdependent relationships to be registered so as to allow individuals to give effect to their wishes, and without any requirement for two people to be a couple. Going down that route could well avoid the problems with legislation of the sort before us. However, simply having a separate Tasmanian-style category of caring relationships would not achieve that.
This bill is not about discrimination. It is about the status that society chooses to confer based on various attributes. For example, one does not give veterans’ entitlements to people who are not veterans. One does not give a seniors card to a person who is not a senior, but in the ordinary sense of the term no-one would presume that that is discrimination.
Likewise it is not discrimination if you do not give the social benefits of a committed relationship to a relationship with no up-front commitment requirement and that is terminable unilaterally on 90 days notice.
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Discrimination on the basis of lawful sexual activity or sexual orientation is already illegal, and the law already gives the same rights as spouses to people in de facto heterosexual and same-sex relationships in matters such as medical treatment. Indeed this is one of the boasts of the Attorney-General about his 2001 legislation. The argument that the bill is needed to overcome evidentiary problems in medical emergency cases is fanciful. It is not even mentioned as an issue in publications such as Over the Rainbow, the guide to the law for same-sex couples funded by the Department of Justice, and the Attorney-General can hardly be suggesting that Victorian public hospitals are engaged in widespread breach of the law.
Overall what this bill is doing is giving the status and benefits of marriage without the responsibilities.
The Attorney-General would hardly propose, nor would he expect society to accept the proposition that marriage could be entered into without the bride and groom making commitments to each other for an ongoing relationship and with the marriage terminable by either party on 90 days notice. Yet that is effectively what he is proposing with this bill. There is no requirement for a commitment to exclusivity or duration in this legislation. When the legislation uses the word ‘commitment’, it talks only about commitment for the material benefit of the other party, not about commitment to an ongoing and exclusive relationship. Of course the parties may have a commitment between themselves to an ongoing and exclusive relationship, but it is not a requirement of the legislation and there is no obligation to make such a declaration of commitment in a public context. By contrast the Marriage Act provides that:
Marriage, according to law in Australia, is the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.
Traditionally when the law has recognised de facto relationships, that has been a move to recognise relationships that are, in practice if not in law, of a nature akin to marriage.
The problem with giving marriage lite relationships the same social status as marriage and other committed relationships is not an academic debate about similarities and differences, nor is it based on a traditionalist’s support for marriage for marriage’s sake. When the state formally recognises uncommitted short-term relationships on the same basis as committed long-term relationships it says that these relationships are of equal social benefit. This issue is important because the message we give today and the message that this legislation will give on an ongoing basis, if it is passed, will have consequences for decades to come for our social cohesion and stability and for the domestic and social environments in which our children will grow up.
As the Australian Family Association (AFA) has pointed out, spouses have onerous responsibilities to their children, their extended families, to friends and to the community. It is in part in recognition of the existence of these onerous responsibilities that are being undertaken with a social benefit that over virtually the whole course of human history a particular status has been accorded to what is now defined as a marriage. Social cohesion will of course suffer if family instability becomes increasingly common, and that will lead to greater disadvantage, particularly amongst children growing up in non-maritally based families.
As the AFA points out, all members of society, regardless of sexuality or gender, have a vital stake in the ongoing vitality of marriage and family as they are traditionally understood because of the significant role of these institutions in fostering social cohesion — and research certainly supports the role that stable families play in fostering personal wellbeing as well as greater economic capacity.
Overall children and adults are likely to be better off if they are able to grow up in a family founded on the ongoing marriage of their biological mother and father. Children are likely to have poorer outcomes and experience more difficulties if they grow up in families founded on the cohabitation of parents or in other family settings characterised by the presence of step-parents or other sexual partners of a child’s parent. In short, children need their mother and father. This was put very well by the late Richard McGarvie, the former Governor of Victoria, who was appointed under the Cain and Kirner governments.
He said:
The way children learn civilised living is in the family. The best gift you can give to a child is to have that child brought up in a family whose parents share the child’s genes and … it never enters the child’s mind that the family won’t continue.
Those remarks are reported in the Sunday Age of 3 September 1995.
Former Prime Minister John Howard made very similar points in his recently reported Washington speech, when he said that marriage is a bedrock social institution and that we should be ceaselessly expounding the advantages for a child of being raised by both its mother and father. That is certainly the ideal.
Sometimes it is not achieved, and quite often not due to the fault of either or both of the partners concerned — and those persons who bring up their children in less than ideal circumstances often work very hard to
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overcome those disadvantages and achieve good outcomes for their children. Nonetheless that is the ideal that the community should be aiming for and supporting.
The Attorney-General is a proud advocate of his Charter of Human Rights and Responsibilities. He hardly needs me to remind him that that charter is based on the International Covenant on Civil and Political Rights of 1966. Article 23 of that international covenant provides that:
1. The family is the natural and fundamental group unit of society and is entitled to protection by society and the state.
2. The right of men and women of marriageable age to marry and to found a family shall be recognised.
It is clear, despite the Attorney-General’s rewriting of the charter of so-called universal values to suit his own view of the world, that the document on which the Attorney-General’s own charter is based rightly identifies the family as the natural and fundamental group unit of society, rightly links the family to the marriage of men and women and rightly singles out the family and the marriage of men and women for special protection and recognition by society. Almost identical sentiments are expressed in article 16 of the Universal Declaration of Human Rights of 1948. As a society what we should be doing is reinforcing the importance of stable and committed relationships between mothers and fathers as the best environment for raising children. That is part of an overall growing social need for people to take greater personal responsibility in life.
If you look at issues being debated in society at present in a far broader context, you see that an increasing number of people from many different walks of life and from right across the political spectrum are concerned about the direction in which society is heading as we confront a wide range of growing social problems, including street violence, family violence, road rage, drug abuse and binge drinking. Many thoughtful people are drawing the conclusion that one of the fundamental changes in society’s direction that is needed to reverse these problems is a greater sense of personal responsibility. Yet the message we are giving with this bill is completely the opposite. This bill is saying that you can enter a relationship with no up-front commitment to continue it and then tear it up on 90 days notice. If this bill is passed, the law will be saying that such a relationship attracts virtually all the legal rights and benefits of a marriage, which at least starts off as a lifelong commitment.
Of course greater personal responsibility does not necessarily require government action or laws. If one looks at the example of 19th century Britain and North America one sees that people transformed themselves through a community spirit of revival and self-help and took themselves out of the squalor and misery depicted in Hogarth’s Gin Lane and Dickens’s Oliver Twist. However in many fields the rule of law is an important and sometimes essential reinforcement of social and community attitudes, and a law that gives all the wrong messages is highly counterproductive. The need for a greater sense of responsibility in the community is not something that is becoming apparent by reference to abstract notions of morality or religion; it is becoming apparent because of a blunt recognition, justified by evidence, that particular failures of responsibility in our community today are having harmful consequences for others, and not least of all for our children.
Reversing that direction and achieving a greater sense of personal responsibility and obligation in our community will be a great move in the right direction. However, it will not be an easy task. The first step to any reform is recognition of our problems and a determination to remedy those problems. What we should be doing today is taking our first steps in that direction down the road to reform, rather than heading in the wrong direction, as this bill does.
Title RELATIONSHIPS BILL
House ASSEMBLY
Activity Second Reading
Members CLARK
Date 12 March 2008
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