Page 657 - Week 03 - Tuesday, 28 March 2006
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There is increasing recognition in human rights jurisprudence that the right to equal protection of the law includes positive obligations to ensure equal treatment. The Supreme Court of Canada, for example, in the 1997 case of Eldridge v the Attorney-General of British Columbia said that discrimination can accrue from a failure to take positive steps to ensure that disadvantaged groups benefit equally. Same-sex relationships must be treated equally unless there is an objectively justifiable reason to do otherwise. The ACT can find no such objectively justifiable reason to treat same-sex relationships other than equally. I ask anyone who may have concerns with this bill to ask themselves that question: what objectively justifiable reason is there to treat same-sex relationships any differently from loving, committed heterosexual relationships?
The Civil Unions Bill will ensure equal treatment under ACT law. It will allow a couple to establish a domestic partnership by making a formal declaration of their intention to do so. A civil union will be treated in the same way as marriage under territory law. A civil union is not a marriage but will, so far as the law of the ACT is concerned, be treated in the same way. The government is of the view that this is preferable to providing an alternative form of marriage that would not have equal recognition to commonwealth marriage. The civil union is a new concept that can be used by anybody, regardless of gender. It will give couples functional equality under ACT law with married couples but does not replace or duplicate marriage.
Why is this legislation necessary? The law reform that has been undertaken to date has accorded people in same-sex domestic partnerships the same status as unmarried, opposite sex domestic partnerships under ACT law. This is because there is currently no provision in Australian law for two people of the same sex to legally marry. In the absence of the option of marriage, the law must rely on the objective approach of the nature of the relationship two people have, as opposed to what they might have if the option of marriage were available. Thus the law reform the government undertook during 2003 and 2004 relied on the functional definition of the relationship—ie, two people, whether of different sexes or the same sex, living together as a couple on a genuine domestic basis. The term “domestic partnership” is now used as a universal term in ACT legislation to refer to this functional relationship.
Although laws no longer distinguish significantly between the effect of being in an informal domestic partnership and a formal marriage, there remains a difference in the capacity for parties to establish the fact of their relationship. By marrying, parties gain immediate recognition of their domestic partnership. Parties to other domestic partnerships need to provide factual material to support their contention that they are in a domestic partnership and, in either a practical way or because of a direct statutory requirement, a certain amount of time must pass before that effectively can be done.
It is clear that two people who want to establish a domestic partnership are at a disadvantage if they cannot marry. Although the nature of the relationship is the same, a couple who cannot marry are deprived of the capacity to immediately establish that they are in a domestic partnership, complete with indisputable evidence of the existence of that relationship. The purpose of the Civil Unions Bill is to provide a formal means of ascertaining the intentions of the two people involved so that particular consequences may then flow from that statement of intention. The other aspect of this is, of course, the
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