The Charter vs relationship registration

The Federal Attorney-General has followed in the precise footsteps of his conservative predecessor by exercising his power to disallow ACT statutes to force the ACT government to replace its plans for UK-style civil unions with Victorian- and Tasmanian-style registered relationships.

It is worth noting that Victoria’s Registered Relationships Bill did not get a clearn bill of health in parliamentary scrutiny arrangements pursuant to the Charter.  The Statement of Compatibility was forced into ‘reasonable limits’ arguments in relation to the restrictive eligibility rules for registration and SARC (whom I advise) issued a report that listed three broad human rights issues with relationship registration:

  • they don’t protect all domestic relationships
  • they give broad but undefined powers to the registrar and to courts
  • they don’t provide domestic partners and their children with equivalent protection to the protection that married people and their children get

Here are the details of SARC’s report:

First, SARC picked up on the Statement of Compatibility concerns and picked up on a number of eligibility problems:

Whilst the Committee considers that clauses 10 & 22 and Schedule 1 promote those couples’ Charter rights to protection against discrimination, the Committee observes that clause 6 limits registration to persons in ‘registrable relationships’ who satisfy various registration requirements. In particular, the Committee notes that the following people with domestic partners will not be able to register their relationship (or remain registered):

  • people who are under 18 or whose partner is under 18 (definition of ‘registrable relationship’ in clause 5)
  • people who do not provide ‘personal or financial commitment of a domestic nature for the benefit of’ their partner or vice-versa (definition of ‘registrable relationship’ in clause 5), but who nevertheless live with them ‘on a genuine domestic basis’ (definition of ‘domestic partner in s. 4 of the Equal Opportunity Act 1995 and numerous other Victorian statutes)
  • people who are not domiciled or resident in Victoria or whose partner is not domiciled or resident in Victoria (clause 6(a))
  • people who are married or who have a second domestic partner, or whose partner is married or has a second domestic partner, or who subsequently marry (clauses 6(b), 6(c) & 11(b))

The Committee observes that these categories of people, who are all domestic partners for the purposes of many Victorian laws, are prevented by clauses 5 and 6 from proving that status via registration. The Committee therefore considers that clause 5 and 6 engage the Charter rights of such people to equal and effective protection from discrimination on the basis of marital status (including having a domestic partner.)

These problems, also noted in the ACT when its Civil Partnerships Bill was debated, focus on the way that the Bill deviates from its purpose of allowing people who are subject to Victorian law because of their relationships to prove that relationship easily. Instead, some people miss out, in line of other policies of limiting people to just one registered relationship – there’s no stopping people having as many unregistered relationships as they want! – and (presumably) stopping registration ‘tourism’.

Second, and further in this vein, SARC was concerned about the significant – but ill-defined – powers a registration scheme gives to the registrar, including discretions to require applicants to provide information (beyond the curious stat dec that doesn’t actually require couples to state that they are in a relationship) and to refuse to register relationships. As well, courts have the power to de-register relationships, even without the consent of either party! SARC concluded: The Committee observes that no court has the power to order the divorce of a married couple except upon the application of one of the spouses.

The Committee also observes that courts and tribunals are exempted from the requirement in Charter s. 38 to act compatibly with human rights. The Committee further observes that discretionary control by the Registrar or a court of tribunal over the registration of a registrable relationship or the revocation of the registration of a registered relationship may significantly diminish the dignity of the members of those relationships and limit their personal autonomy. The Committee considers that clauses 7(d), 8, 10(3)(b), 15(b), 16, 17(2) and 18 are not certain, appropriately circumscribed or accessible and therefore may infringe the Charter rights of people in registrable and registered relationships to not be subject to unlawful interference in their privacy or family. The Committee refers to Parliament for its consideration the question of whether or not these clauses are reasonable and demonstrably justified limits on human rights according to the test in Charter s. 7(2).

Third, SARC also heeded overseas judgments that have held that the state must ensure that people who can’t or don’t want to marry have access to equivalent legal protections to those provided to married people. (Some courts have, of course, famously held that nothing short of marriage will do.)  Its report listed the differences in protection between registered relationships schemes and marriage:

The Committee notes that the registration process in the Bill differs from the process of registering a marriage under Part 5 of the Births, Deaths and Marriages Act 1996 in the following respects:

  • Eligibility: Registration of a relationship requires that the partners be in a ‘registrable relationship’ (including being adults and providing material benefit) (clause 5), residents of Victoria and in no other relationships (clause 6), whereas marriage is available to all unmarried adults (apart from certain relatives) and is available to some minors in some circumstances (Parts II and III of the Marriage Act 1961 (Cth)).
  • Process: Registration of a relationship is at the Registrar’s discretion and can be revoked by a court without an application from the partners (clauses 10(3)(b) and 16), whereas the Registrar must register all marriages solemnised in Victoria and divorces require an application by a party to the marriage (s. 31 of the Births, Deaths and Marriages Act 1996 & s. 44(1A) of the Family Law Act 1975 (Cth)).
  • Cost: Registration costs $180 and revocation of registration costs $58.50 (clause 75(1)), whereas registration of a soleminised marriage and removal of that registration following divorce are free (although solemnisation and divorce may themselves be costly.)

The Committee considers that these differences, to the extent that they would prevent or deter an unmarried couple from accessing the benefits of registration in circumstances where a similarly placed opposite-sex couple would not be prevented or deterred from accessing the same benefits via marriage, may infringe the Charter rights of those couples and their children to equal protection of the law.

The Committee also notes that the revocation process in the Bill differs from divorce under Parts V and VI of the Family Law Act 1975 (Cth) in the following respects:

  • Marriage to someone else: Registration is automatically revoked when one partner marries (clause 11), whereas marriage by a married person does not end the marriage and is both invalid and criminal (s. 94 of the Marriage Act 1961 (Cth))
  • Availability: Revocation is available 90 days after a party lodges a revocation application (clause 15), whereas divorce require a court order and prior separation of the couple for at least 12 months (s. 48(2) of the Family Law Act 1975 (Cth).)
  • Reconciliation: Revocation does not require any consideration of reconciliation, whereas, in the case of a couple married for under two years, they must first have considered reconciliation with the assistance of a professional counsellor (s. 44(1B) of the Family Law Act 1975 (Cth))
  • Children: Revocation is available regardless of the circumstances of children of the relationship, whereas divorce generally cannot be ordered unless a court is satisfied ‘that proper arrangement has been made in all the circumstances for the care, welfare and development’ of children of the marriage (s. 55A of the Family Law Act 1975 (Cth))

Whilst the Committee considers that clauses 11 and 15 may provide less protection to families and children from the consequences of relationship breakdown than are available to equivalent married couples and their children, the Committee also observes that the introduction of similar constraints on revocation of registration of a registered relationship may deter some unmarried couples from registration and its accompanying benefits. However, the Committee further observes that permitting couples to elect, on or after registration, to be bound by such constraints may not attract this consequence.

The Bill passed unammended. The Minister’s reply to SARC’s concerns is available here.

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