Wednesday, 7 June 2006

Legal Impedimenta

Two bits of news today.

In the first, the Australian Passport Office is sending me a formal letter requesting further information before processing my passport application.

I've already given them all the information (and a bit more besides) that their website says is needed. My passport interview went smoothly, with all my claims accepted.

Anyway, I've asked that they draft and send a formal letter, stating exactly the information they request, and quoting the legislative basis for the request.

The relevant legislation is the Australian Passport Act 2005

Minister to be satisfied of person’s citizenship and identity

Before issuing an Australian passport to a person, the Minister must be satisfied:
(a) that the person is an Australian citizen; and
(b) of the identity of the person.

Note: See sections 42 and 43 for details about how the Minister satisfies himself or herself of an Australian passport applicant’s citizenship and identity.
Disclosure of personal information for the purposes of this Act

Information that may be disclosed to the Minister
1) For the purposes of performing functions under this Act, the Minister may request:
(a) an applicant for an Australian travel document;
to disclose to the Minister, or a delegate of the Minister, personal information about:
(f) an applicant for an Australian travel document, or a person who is connected with an applicant or an application;
Minister may determine information required for the purpose of satisfying Minister of person’s citizenship and identity etc.

(1) A Minister’s determination may specify kinds of personal information that may be requested by the Minister for the purposes of Part 2.

(2) This section does not prevent the Minister from requesting under subsection 42(1) information that is not specified in a determination made for the purposes of subsection (1) of this section.
It is clear that the Personal Information may be anything the Minister chooses - but only if it is germane to establishing the applicant's Identity or Citizenship.

And he may request, but the request doesn't have to be complied with. If the minister then decides the information is inadequate, the application will fail. Then it's off to the Administrative Appeals Tribunal where the Australian Passport Office must try to prove that the information they request is necessary to prove identity and/or citizenship.

If they ask for any of my medical records, they can go whistle I will decline their request. I will send additional information to establish my identity if asked, photo ID of my student card, credit cards, bank records, even give them permission to access my Tax file and electoral roll entry.

They already have all my data from my UK passport anyway. I included that with my application.

Now for the second piece of legal news.

The Australian Capital Territory Civil Unions Act 2006 is to be vetoed by Government Fiat.
The Commonwealth is to intervene and directly veto ACT law for the first time since self-government, scrapping the Civil Unions Act which recognises same-sex relationships.

Prime Minister John Howard and Attorney-General Philip Ruddock announced yesterday that they would advise the Governor-General to disallow the territory law, provoking outrage on both sides of ACT politics.
The Government would advise Governor-General Michael Jeffrey to use Section 35 of the ACT Self-Government Act to disallow the Civil Unions Act.

Mr Corbell said Section 35 was itself a disallowable instrument, which meant the Howard-Ruddock move could be thwarted, but only by the improbable route of votes of both houses of Federal Parliament.

"The Commonwealth has not given any reasons for this decision," Mr Corbell said. "We are not in any way trespassing on their powers in relation to marriage. This is simply about the conservative social and moral agenda of the Howard Government and it means that thousands of Canberrans will be denied the opportunity to have their same-sex relationship recognised under law."

He rejected any suggestion the ACT had been provocative.

"Mr Ruddock is on the record as saying that it is the states' and territories' role to make laws in relation to same-sex relationships - and that is what the ACT has done ..." he said. "The Government has gone out of its way to respond ... I've written to MrRuddock on a number of occasions yet we still have this heavy-handed conservatism."

Same-sex relationships occurred in hundreds of thousands of Australian households "and should be recognised as a legitimate and reasonable relationship in the same way that hetero relationships are. To that degree, this is homophobic."

I'm married. And in a same-sex relationship. So how does this affect me? Well, first, as I blogged before "in a previous incarnation" I am in favour of same-sex civil unions on strictly humanitarian grounds. Well, a lot has changed since then. I'm rather more tolerant than I was. But I still believe in the main thrust of the original article.
Enough. More than Enough. Let's show some common decency and humanity and make the law non-discriminatory when it comes to marriage. There's plenty more discrimination in other areas, far too much of it in fact. As for Churches - let them follow their own dogma, or conscience, or both. This isn't a religious question, it's a matter of law, justice, and common humanity.

Now the second, and strictly personal reason. I quote from Schedule 1 of the Civil Unions Act, in the list of Acts amended :
Part 1.4 Births, Deaths and Marriages Registration Act 1997
[1.16] Section 24 (1) (d)
And section 24 of the Births, Deaths and Marriages Registration Act 1997 reads :
Application to alter register to record change of sex
(1)A person may apply to the registrar-general for alteration of the record of the person's sex in the registration of the person's birth if—
(a) the person is at least 18 years old; and
(b) the person's birth is registered in the ACT; and
(c) the person has undergone sexual reassignment surgery; and
(d) the person is not married.
It's the bit that says that a transsexual woman is still legally male if she's married. To be recognised as of her correct gender, any marriage she's in must be terminated. This was an anomaly in the law, as I pointed out when the Civil Union Act was being drafted.

In another blog entry, I stated :
The only grounds for dissolution of a marriage is "irretrievable breakdown". One partner or the other must formally swear to the Court that the marriage had broken down beyond hope of repair, and evidence must be presented that they had formally separated at least 12 months previously. To then immediately request that they be re-married in a "civil partnership" would be a legal, as well as actual, nonsense. So instead, legally, black is white, 2+2=5, and someone obviously and medically of one gender is legally of the other. This has very real and terrible implications should they be arrested in a case of mistaken identity, or attempt to travel overseas with a passport with obviously false information on, or a host of other matters.
Transition is hard enough, spiritually, psychologically, socially and medically, without this legal insanity. My partner and I are by no stretch of the imagination still Husband and Wife, yet we remain together, still just as much in love as we were the day we married, and co-parents of a little son who means more to us than life itself. She's not Lesbian, and neither, to my discomfort, am I now. I really was a "Lesbian trapped in a Man's body", but neither is true any longer.

The solemn vows we took "in sickness and in health" could not reasonably be expected to include fantastically rare and ill-understood medical conditions that cause one partner's body to partly change gender without external intervention. Yet we're staying together anyway, at least, as long as we can. The Law in its Majesty, and its Insanity, is not helping one little bit.

With the Law as it stand now, should we divorce, I could get re-married. But only to another woman, as I'm legally male. The pressure groups attempting to preserve the sanctity of marriage, and prevent same-sex marriage, have by their efforts and legal convolutions achieved exactly the reverse.
Actually, as things stand now, from the case in re Kevin it's a good question as to whether the Family Court would determine whether I could marry a woman, or a man. Nonetheless, Cabinet's High-handed Action (and for once this is not rhetoric, but exactly true) will ensure that an injustice is continued, and pressure on marriages at risk increased. The marriage has to be destroyed to save it, you see. Too bad about the children.

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