Rodney Croome Myths of love and power: why Tasmania’s relationship registry isn’t a substitute for same-sex marriage but a step beyond it
But the worst offender by far is the ACT Government. As well as the myths mentioned already, it has claimed that the Tasmanian registry is “second-rate” and “watered-down”, that registration is for dogs, not people, and that, as a result, numbers of registered relationships are “low” (HREOC has also repeated this myth, along with the strange claim that most registering couples are men living in the inner-city). As explained, far from being second-rate the Tasmanian registry is groundbreaking for its equal treatment of such a diverse range of relationships.
IT WOULD BE hard to find a contemporary Australian legal institution more misunderstood than the Tasmanian relationship registry.
Everyone with an interest in relationship law reform, particularly for same-sex couples, has an opinion on the Tasmanian registry, but in most cases these opinions are founded on myth, misconception or deliberate blindness to reality.
Before looking at these myths and what gave rise to them, it’s worth outlining what the Tasmanian relationship registry is all about.
~ Beyond marriage
The Tasmanian relationship registry was established on New Year’s Day 2004 when the legislation of which it is an integral part, the Relationships Act, came into force.
The Relationships Act was then, and remains, the most progressive relationship law in Australia.
It provides the full suite of relationship rights in state law – virtually equivalent to the rights of married couples – to any two people who qualify as partners in a personal relationship.
The definition of such a relationship is so wide that it takes in almost any two adults.
The principle behind this is that no personal relationship – opposite-sex, same-sex, companionate or familial – should be privileged above others. It should be up to us as individuals, not the state, to judge which of our personal relationships is important enough to have legal rights.
In line with this egalitarian, choice-based philosophy, Tasmanian law no longer defines relationships in marriage-related terms like “husband”, “wife”, “spouse” or even “de facto partner”.
All these traditional categories have been replaced by the neutral terms “significant” and “caring” relationships, again to give partners the freedom to define their own relationship rather than have it defined for them.
Because Tasmanian law now potentially enfranchises so many relationships which have previously gone unrecognised and unentitled, it is necessary to provide a way for partners to easily access and confirm their legal rights.
This is where the registry comes in.
Any two adult Tasmanian residents can enter a personal relationship on the registry by signing a Deed of Relationship before an official witness. When this Deed is validated by the Registrar of Births, Deaths and Marriages the partners immediately receive relationship rights and entitlements in state law.
They also receive a certificate that guarantees these rights are respected in situations where they are challenged to verify their legal entitlements (such as a medical emergency).
If we take all these elements together, we have in the Tasmanian Relationships Act and its registry what some people have described as a “post-marriage” system for legally recognising relationships. (The American historian, Allan Tulchin, would disagree. He has uncovered late mediaeval legal systems for the recognition of a range of diverse relationships which bare an uncanny resemblance to Tasmania’s. Perhaps a better description for all these systems would be “pre-marriage”, or simply “beyond marriage”).
But however we label the Tasmanian scheme, when we look at how it works it reveals itself as relatively simple and straight forward. What is there in this scheme to misunderstand or misrepresent?
~ Of dogs and Tasmanians
First the ACT Government, followed then by the Federal Labor Party, and even the Human Rights and Equal Opportunity Commission, the ACT Liberal Opposition and the Australian Christian Lobby have invented and re-iterated a set of myths about Tasmania’s relationship laws and its registry.
A common myth repeated frequently by all these bodies, including the Federal Government with its commitment to “nationally-consistent, state registries” based on Tasmania’s, is that the Tasmanian registry simply certifies existing cohabiting, de facto relationships.
This is untrue. Like a marriage or civil union, there is no need for partners to Tasmanian Deed of Relationship to prove they have a pre-existing bond. Of course, many partners who enter a Deed of Relationship do have a pre-existing relationship, as do many marriage partners. The point is, proving the existence of such a relationship is not a requirement for partners to be legally recognised.
The ACT Opposition and the Australian Christian Lobby say they support the Tasmanian registry because it treats same-sex couples like companions and not married couples. Again, this misrepresents a registry which treats equally all couples, conjugal and non-conjugal. Many conservative politicians and ACL members would staunchly oppose the abolition of marriage-related relationship categories that is the cornerstone of the Tasmanian law.
But the worst offender by far is the ACT Government.
As well as the myths mentioned already, it has claimed that the Tasmanian registry is “second-rate” and “watered-down”, that registration is for dogs, not people, and that, as a result, numbers of registered relationships are “low” (HREOC has also repeated this myth, along with the strange claim that most registering couples are men living in the inner-city).
As explained, far from being second-rate the Tasmanian registry is groundbreaking for its equal treatment of such a diverse range of relationships.
Neither is the registration of a relationship comparable to registering a dog. A Deed of Relationship, once signed and witnessed, is registered on a register by a registrar in a registry, in exactly the same way as a marriage certificate.
As a result, the number of such registrations has kept pace with other jurisdictions. At the beginning of December 100 Deeds of Relationship had been registered in Tasmania. This is exactly comparable with new Zealand which has ten times Tasmania’s population and which at the end of October had registered 1000 civil unions. As with New Zealand civil unions, there is an even gender balance and geographical spread of Tasmanian registered relationships.
~ Inferior to marriage
When we set these myths side by side a clear pattern emerges.
They are designed to make the Tasmanian registry look inferior to same-sex marriage so the former can be the latter’s weak and easy foil.
The ACT Government has twice put forward civil union legislation which is more like marriage than the Tasmanian registry because it deals exclusively with marriage-like relationships, and because it allows couples to enter a formal union through an official ceremony.
But to avoid conflict with successive Federal Governments that are determined to appease the opposition of some Christians to same-sex marriage, the ACT administration cannot directly admit its proposal is more like marriage than Tasmania’s, or focus on the ceremonial aspect which sets the two schemes apart. So it must make the same point with spurious claims about the Tasmanian scheme.
The same need to dodge the fraught politics of gay marriage drives the other organisations mentioned above.
To diffuse demands for same-sex marriage, the Federal Government, ACT Opposition and Australian Christian Lobby have put forward the Tasmanian registry as an alternative, in the process stripping it of the important “post-marriage” features described above. At the same time, to head-off any criticism that they are allowing back-door marriage, these groups advocate a version of the Tasmanian registry which is also stripped of anything which might look in any way “marriage-like”. What’s left is a hollow shell resembling the original in name only.
HREOC’s myth-making about the Tasmanian registry is also about marriage. In its recent, laudable report on ending discrimination against same-sex couples, it sought to avoid the hot-button issue of marriage at all costs. Unlike the other groups I’ve mentioned, for which it is imperative the Tasmanian registry not look like marriage, for HREOC the registry was too much like marriage and had to be summarily dismissed as a possible solution to same-sex couple discrimination.
In short then, the ACT Government condemns the Tasmanian registry for not being enough like marriage. The Federal Government, ACT Opposition and Australian Christian Lobby praise it for the same reason. Like the ACT Government, HREOC dismisses Tasmania’s registry but unlike all the others it does this because the registry is too matrimonial.
The tragedy in all this is that a law which was never intended as a substitute for same-sex marriage, indeed which takes relationship law beyond marriage and conjugality, has been dragged to the centre the debate on gay marriage by the immense political and cultural gravity of this debate.
In the context of Australia’s same-sex marriage debate the Tasmanian registry is being judged by standards which don’t apply to it and put to purposes it was not designed for. It is being systematically twisted and debased by powerful interests that won’t or can’t understand it.
Worse still, all the posturing on Tasmania’s registry obscures what Australia should be debating: how we develop a system of relationship laws which, like Tasmania’s, guarantees equal rights and respect for all personal relationships, including same-sex relationships, and maximum choice and flexibility when it comes to how these personal relationships are legally recognised.
A good start would be the kind of three-tiered system which already operates in several other western countries: de facto entitlements for a wide range of partners who want legal protection without formalising their unions, relationship registries for the same range of partners who want formal recognition without all the social and cultural connotations of marriage, and marriage for same and opposite sex partners who wish to make a marital commitment.
Seen this way, the debate about registries or marriage, especially for same-sex couples, becomes one about registries AND marriage.
So how do we move beyond the myths and false distinctions which currently inhibit useful public discussion about relationship law reform? How do we rescue the Tasmanian relationship registry from the treacherous rips of the marriage debate so that it can return to its position as a benchmark for reform?
~ An imaginary Tasmania
An answer to that must take in yet another factor conspiring against the Tasmanian registry.
It is a curious fact that none of the mainland organisations which have so much to say about the Tasmanian registry have actively sought information about it from any of the Tasmanian officials charged with administering it, academics who helped to design it, law-makers who passed it, lobbyists who advocated for it, or couples who are entitled by it.
Not one, ever.
Such behaviour would seem strange to anyone but a Tasmanian.
Like all islands, Tasmania is a place on to which continental peoples compulsively project their fears and fantasies in a way that is heedless of reality.
The recent pulp mill debate produced some excellent examples of this projection.
In numerous mainland news reports, the Tamar Valley was described as “pristine” despite having been the site of mines, smelters and factories for 150 years.
In a number of mainland opinion pieces, Tasmanians were pitied as “silenced” and “cowered” even as thousands marched against the mill and public figures vocally condemned it.
In this way, a hundred times over, geography permits what politics demands: the invention of an imaginary Tasmania utterly at odds with reality.
But geography and expediency do not dictate our destiny. They can be overcome by the power of an idea, especially if it is spoken with authority.
~ Speaking the truth
Some authority lies with partners in Deeds of Relationship. Their lived experience of the new Tasmanian relationships regime is absent from the national debate on Tasmania’s laws and, when voiced, will help realign that debate to reality.
Partly in response to the myths mentioned above, a new association of Tasmanian recognised partners has been formed called InDeed. It aims to promote understanding of, and respect for, Tasmania’s relationship laws both locally and nationally. It will also lobby for Deeds of Relationship to have standing in federal law (on this matter the marriage debate has also intervened. Federal MPs are wary of providing full recognition of state registered relationships for fear, like HREOC, of being seen to endorse same-sex marriage).
Authority and responsibility to speak the truth about Tasmania’s relationship laws also lies with the island’s government.
So far it has discharged this responsibility poorly.
In the four years since the Relationships Act and registry came into force the Tasmanian Government has done next to nothing to educate the public about the former or promote the benefits of the latter.
Despite making over $13,000 from registration fees, it hasn’t produced a single pamphlet, webpage or poster, conducted one information seminar, or convened one seminar.
Even though the Relationships Act has remained in the top five most accessed statutes on the Tasmanian law website since its passage, a click on the Justice Department’s weblink to “benefits of registering a relationship” returns “seek legal advice”.
One result of this government inaction is that many Tasmanians are still ignorant of how Deeds of Relationship can benefit them, and of the obligation they have to respect these Deeds.
The other result is that the rest of Australia and the world is largely ignorant of Tasmania’s relationships laws and the standards they set.
It is time for this ignorance to end.
It is time for the Tasmanian Government to take its groundbreaking relationship laws as seriously as the partners who avail themselves of these laws.
As Australia begins to debate relationship law reform, it’s time for Tasmania to loudly and clearly send the message that all personal relationships should and can be treated with equal respect.
Rodney Croome
For further information on Tasmania’s relationship laws visit
www.relationshipstasmania.org.au and www.justice.tas.gov/bdm
For more on pre-modern antecedents to these laws visit www.sciencedaily.com/releases/2007/08/070823110231.htm
To join InDeed, Tasmania’s Association of Recognised Partners visit www.relationshipstasmania.org.au/indeed.html
To read the latest developments in Australia’s same-sex marriage and relationship debate visit www.rodneycroome.id.au
