Page 1625 - Week 05 - Thursday, 11 May 2006
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19 concerning the recognition of foreign same-sex unions and with the interpretative provisions in the Legislation Act 2001.
The first government amendment concerns subclause 5 (2), which is the fundamental essence of what the bill is about. It states:
A civil union is to be treated for all purposes under territory law in the same way as a marriage.
Subclause 5 (2) does not say that a civil union is a marriage; it simply states that it is to be treated in the same way as a marriage. Providing that civil unions are to be treated by territory law in the same way as marriage is far from equating those two types of relationships. Indeed, many statutes already provide for relationships other than marriage to be treated in the same way as marriage. An excellent example is the commonwealth Social Security Act 1991 where people in marriage-like relationships are to be treated in the same way as people who are legally married. That is commonwealth law.
There are many other examples in all Australian jurisdictions of legislation that treats people in informal domestic relationships, often referred to as de facto relationships or de facto marriages, in the same way as people who have formalised their relationship through marriage. Indeed, the commonwealth Sex Discrimination Act 1984 has for many years made it unlawful to discriminate between couples who are in formal de facto partnerships and couples who are married. Such legal outcomes do not derogate from the special position that marriage has historically in our society. The question has to be asked: if the commonwealth government is prepared to have legislation that treats relationships that are not marriage in the same way as marriage, why is this objectionable in the Civil Unions Bill?
I mentioned earlier that the commonwealth Social Security Act treats people in marriage-like relationships in the same way as people who are married. One critical difference between what the commonwealth Social Security Act does and what is proposed in the Civil Unions Bill is that the non-marriage relationships under the Social Security Act are confined to relationships between opposite-sex couples. Presumably the commonwealth government is comfortable with equating non-marriage relationships with marriage relationships but only if they are opposite-sex couples and not same-sex couples. This is clearly discriminatory. The government does not accept that providing that civil unions are to be treated in the same way as marriage equates civil unions with marriage.
Notwithstanding this, the government is happy to clarify this matter to avoid any possible confusion. The effect of this amendment is to include an explicit statement that a civil union is different to a marriage. The new note 1 states:
Marriage is defined in the Marriage Act 1961 (Cwlth) to mean the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.
The purpose of this amendment is to remove any possible perception that, because a civil union is treated in the same way as a marriage, then it somehow is a marriage by another name. It is not. This amendment explicitly states this and, in doing so, removes any possible confusion over the distinction between a marriage and a civil union. It is not the
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