Joseph Carmel Chetcuti
Blog Tuesday, September 11, 2012
Maltese-Australian barrister Joseph Carmel Chetcuti, author of ‘A Queer History of Malta’, speaks out.
Executing a public deed and accessing certain remedies do not add up to a scheme of relationship registration.
Late this year I mark the 40th anniversary of my coming out. I vividly remember standing in York Street, Sydney, one evening, waiting to catch a bus to Balmain, then a soon-to-be gentrified inner suburb of Sydney. My destination was Terry Street where I was to attend a meeting of Cross-Section, Australia's first cluster of Christian homosexuals hell-bent on changing theology for the better. Long gone were days of wearing a black habit and boyhood dreams of becoming a Franciscan, my chanting and my hymns quickly making way for other more interesting 'hims' and refrains like 'Ho, Ho, Ho, homosexual' and 'Not the Church, not the State, gays will decide their fate
So imagine my delight when, not so long ago, news started to filter through to me that Malta's conservative government, the one that puts religion before country (Religio et Patria), was about to introduce a scheme of relationship registration that would embrace gay men and lesbians.
Years of repeatedly returning to Malta and generating one controversy after another appeared as if they had brought some results. Was all this an unforseen gift from the Nationalist Party government to mark such a significant milestone in my life, I wondered?
As is my custom, I woke up early on 28 August 2012 to check on my emails. One of those received had a file attached to it - a copy of Malta's Cohabitation Bill (incredibly already designated an Act). A glance at the file raised my hopes, leaving me with the impression that it may have contained the seeds of a bipartisan policy on gay and lesbian rights. Later that morning, I sat at my desk to take a closer look at the Bill. Something seemed amiss.
I searched the internet for some of the phrases contained in the Bill. The result was instantaneous, quicker than an angel telling me that I was heavy with child. My eyes lit up as my computer screen exposed an Irish Act with a title similar to that of the Maltese Bill: the Civil Partnerships and Rights and Obligations of Cohabitants Act 2010. Was it mere coincidence, I asked myself? Great minds think alike, I thought.
So I dutifully went about perusing parts of the Irish Act. No prizes for guessing! The Maltese Bill, extolled by Minister Chris Said as the first of its kind to be introduced in Malta, was a cut-and-paste job with large slabs of the Irish Act imported into it. My reaction was one of surprise and horror - here was Malta's Ministry of Justice, Dialogue and Family walking off with someone else's legislation! Sometimes it pays not to be first.
So what does the Bill accomplish? To begin with, the Bill lets cohabitants execute a pubic deed and empowers courts to make property adjustment and maintenance orders. Let's be clear on this... executing a public deed and accessing certain remedies do not add up to a scheme of relationship registration. In Victoria, long before the State introduced such a scheme (Relationships Act 2008), cohabitants were allowed to execute a Deed of Agreement, and the Property Law Act 1958 gave courts the power to make property adjustment orders.
There are other great 'feats of triumph' - the introduction of the 'fault' principle in (some) relationship breakdowns and the (limited) right to seek compensation for damages, both regressive steps that harp back to an era when a prospective spouse could seek damages for breach of a promise to marry. Let's not be fooled! The Maltese Bill puts forward no scheme of relationship registration despite its references to civil cohabitation partnerships.
A final reflection. Clause 18 of the Bill declares that: "A cohabitant in a registered civil cohabitation partnership may be considered as the next of kin of the other cohabitant for the purpose of any acts of civil status." May I ask? And for the purpose of acts of civil status! On that note, I let loose a litany of expletives that would make a Joe Grima blush!
Joseph Carmel Chetcuti is a barrister and solicitor in the Supreme Court of Victoria and a solicitor in the High Court of Australia and the Supreme Court of Queensland. Feedback may be sent by email: email@example.com.