The right to relationship ceremonies

The Federal Governement’s threat to veto the ACT’s bill for civil partnerships focussed on its provision for an official ceremony. The first ACT Civil Union Act (until it was vetoed by Ruddock) contained the following provision:

11 How civil union is entered into

(1) Two people who have given notice to an authorised celebrant in accordance with section 9 of their intention to enter into a civil union with each other may enter into the civil union by making a declaration before the authorised celebrant and at least 1 other witness.

(3) The declaration must be made by each person to the other and must contain a clear statement that— (a) names both parties; and (b) acknowledges that they are freely entering into a civil union with each other.

Robert McClelland’s view is that such a ceremony ‘mimics’ marriage. Instead, the ACT will have to follow Victoria’s lead. Victoria’s new Relationships Act 2008 provides as follows:

6 Application to register a registrable relationship

Persons who are in a registrable relationship may apply to the Registrar, in a form approved by the Registrar, for registration of that relationship…

7 Requirements of application for registration

An application under section 6 must include or be accompanied by–

(a) a statutory declaration from each of the applicants verifying that the applicant– (i) consents to the registration; and (ii) is not married or in a registered relationship; and (iii) is not in another relationship that could be registered under this Part…

10 Registration

(1) If an application to register a registrable relationship has not been withdrawn under section 9, the Registrar may register the relationship in accordance with this section.

So, registering a relationship just involves doing a stat dec and then queuing up at a counter and watching some bored public servant type on a computer. No marriage-mimicking here!

But the ACT government also made a further announcement:

[T]oday I have directed my Department to make arrangements for administrative ceremonies to be conducted by the Registrar General or her delegates once the bill is enacted,” Mr Corbell said. “These ceremonies will have no legal status but will provide couples with the opportunity to publically reaffirm their written declaration of commitment.

I’ll leave it to others (hello Robert McClelland!) to ponder the mysterious difference between this approach and the ACT’s preferred approach. But one interesting question this raises is whether a similar approach will be taken in Victoria. And, indeed, whether the Victorian government has any choice in the matter, given the Charter.

The important point is that the Victorian government currently does provide marriage ceremonies. The Victorian Marriage Registry offers civil marriages in the Old Treasury Building for a fee (from $225 to $305 depending on day of the week and room size) that is quite modest compared to the $180 that people who want to register their relationship will have to fork out just to watch someone stamp a form. The Victorian Marriage Registry seems to be a trading name of the Registry of Births, Deaths and Marriages when it is providing services under the Births, Deaths and Marriages Registration Act 1996:

51 (1) The Registrar may enter into an arrangement for the provision of additional services in connection with the provision of services relating to a registrable event, including, but not limited to– (a) the provision of information in the form of a decorative certificate or other document; and (b) the provision of information from records maintained under section 50 relating to the registrable event.

So, no explicit authorisation to hold ceremonies, but they nevertheless are allowed. (I guess the registry could run ceremonies for births, name changes, sex changes and deaths too, though it doesn’t seem to advertise them at present.)

Interestingly, the Relationships Act 2008 contains an identical provision for services for registration of relationships:

27 (1) The Registrar may enter into an arrangement for the provision of additional services in connection with the provision of services relating to the registration of a registrable relationship, including, but not limited to— (a) the provision of information in the form of a decorative certificate or other document; (b) the provision of information from records maintained under section 26 relating to the registered relationship.

I wonder if those ‘decorative certificates’ will ‘mimic’ marriage certificates. The more interesting question, politically, is whether the Registry will provide registration ceremonies as an ‘additional service’.

Arguably, it has to. The steps of the argument are: (a) that Charter s. 8, in providing for recognition before the law, a right to enjoy human rights without discrimination and a right to equal protection of the law, provides a right for unmarried couples to get the same recognition of their relationship that is afforded to marriage couples; (b) that state-run ceremonies are a form of such recognition and that the fact that marriage requires ‘solemnization’, whereas relationships don’t, is not a significant difference; (c) that the Registar is a ‘public authority‘ (not much doubt there: see s4(1)(b)); (d) that the Registrar is therefore obliged to provide the same ceremony to both marriages and relationships under Charter s.38(1) (the conduct mandate); and (e) that the Marriage Act does not make it reasonable for the Registrar to not to do so under Charter s. 38(2) (the Federal Attorney-General doesn’t seem to think this is a problem, given his tacit acceptance of the ACT government doing this.)

Seems like a fairly clear argument to me. We’ll find out when the Relationships Act 2008 commences fully (no later than 1 December 2008.) And (full disclosure), I intend to be a registrant (although I won’t exactly be camping out on the steps of the office.) That is, of course, assuming my partner doesn’t baulk at signing a stat dec stating that she isn’t currently in a relationship with someone else! (Strange how brides and grooms don’t have to state something similar. Marriages are a little less exclusive, I guess.)

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