Rodney Croome . gay advocate

Tas same-sex marriage move welcomed / Call for a conscience vote on the issue

This media release was issued by the TGLRG on 9.11.10

Tasmanian gay activists have welcomed the re-introduction of legislation allowing same-sex marriages into State Parliament.

The Bill, introduced by Greens leader and Community Development Minister, Nick McKim, was previously introduced in 2005 and 2010.

Tasmanian Gay and Lesbian Rights Group spokesperson, Rodney Croome, said that the right to marry is about equality before the law and removing the stigma still suffered by same-sex couples and their children.

“Same-sex couples wish to marry for all the same reasons as heterosexual couples. They should have that choice”, Mr Croome said.

“The right to marry is also crucial to the achievement of legal equality, social inclusion, and full citizenship for lesbian, gay, bisexual and transgender Australians.”

Mr Croome said he is hopeful the Bill has a greater chance of passing than when it was introduced in 2005 and 2008.

“Given increased support for same-sex marriage in the community we are hopeful the Tasmanian Same-Sex Marriage Bill will be given serious consideration by the major parties and that both major parties will allow a conscience vote.”

At the weekend Tasmanian Premier, David Barltett, said he does not oppose allowing same-sex couples to marry. A spokesperson for the State Liberal Party said the Party will give the issue “careful consideration” (Launceston Examiner, 8.11.10, p8).

Last month an opinion poll conducted by Galaxy research found 62% of Australians believe same-sex couples should be allowed to marry and 78% support a conscience vote on the issue.

The constitutionality of the Tasmanian Same-Sex Marriage Bill has been confirmed in a formal opinion by University of New South Wales constitutional law expert, Professor George Williams, and Melbourne University constitutional law expert, Professor, Kristen Walker.

According to Professor Williams,

…my opinion is that the proposed Same-Sex Marriage Act would not be rendered inoperative under section 109 of the Constitution. It is not inconsistent with the Commonwealth Marriage Act because the two Acts operate in different fields.

A copy of Prof William’s and Prof Walker’s advice can be found at
http://www.rodneycroome.id.au/other_more?id=3328_0_2_0_M2
http://www.rodneycroome.id.au/other_more?id=3329_0_2_0_M2

Prof George Williams can be contacted on 0414 241 593.

Rodney Croome can be contacted on 0409 010 668.

For television interviews please contact Michael Dempsey on 0409 798 363.

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A TASMANIAN SAME-SEX MARRIAGE BILL AT A GLANCE

- The Tasmanian Same-Sex Marriage Bill will allow same-sex couples to marry in Tasmania and receive all the rights and responsibilities of married couples under Tasmanian law.

- This is important because everyone should be equal under Tasmanian law regardless of their gender or sexual orientation.

- According to New South Wales University constitutional law expert, Prof George Williams, the Bill is constitutional

- This is because under the Australian Constitution both the States and the Commonwealth have power to make marriage laws.

- The States cannot make laws about marriage which conflict with or duplicate Commonwealth laws.

- But last year, when the Howard Government made it crystal clear that national marriage law is only for different-sex couples, it unintentionally gave the States a clear constitutional mandate to make marriage laws for same-sex couples.

- As well as allowing same-sex couples to marry in Tasmania, the aims of the Bill are to prompt mature community debate on the issue, inspire the introduction of similar legislation in other states and eventually create the conditions for the recognition of same-sex marriage in federal law.

- It is hoped the Bill will be immediately recommended to a parliamentary inquiry for a thorough investigation of its legal, constitutional and social implications.

- The Bill will not recognise same-sex marriages for the purposes of federal law or the laws of other states and territories.

- The Bill contains an exemption for churches which do not wish to marry same-sex couples.

- The Bill has two accompanying Bills, one establishing a registry of Tasmanian same-sex marriage celebrants, the other providing for divorce.

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BACKGROUND NOTES ON THE TASMANIAN SAME-SEX MARRIAGE BILL 2005

Governments should not discriminate between classes of citizens. As recently as 1967, blacks and whites in some American states could not wed. No one but a crude racist would defend such a rule now. If marriage is to fulfill its aspirations, it must be defined by the commitment of one to another for richer for poorer, in sickness and in health – not by the people it excludes.

The Economist on gay marriage, 1996


My opinion is that the proposed Same-Sex Marriage Act would not be rendered inoperative under section 109 of the Constitution. It is not inconsistent with the Commonwealth Marriage Act because the two Acts operate in different fields.

University of New South Wales constitutional law expert, Professor George Williams, Apr 2005

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A TASMANIAN SAME-SEX MARRIAGE BILL: HOW AND WHY?

On August 13th 2004 the Federal Parliament passed a Howard Government amendment to the Commonwealth Marriage Act making it clear that marriage in national law is between a man and a woman.

Inadvertently this legislation opened up the possibility for the States to legislate for same-sex marriage.

This is because under the Australian Constitutions both the States and the Commonwealth have power to make marriage laws.

The States cannot make laws about marriage which conflict with or duplicate Commonwealth laws.

This meant that while the definition of marriage was unclear in national law, the States could not legislate for any form of marriage.

But when the Howard Government, at the urging of Tasmanian Senator, Guy Barnett, made it crystal clear that national marriage law is only for different-sex couples, it unintentionally gave the States a clear constitutional mandate to make marriage laws for same-sex couples.

The Tasmanian Same-Sex Marriage Bill is designed both to fulfil the mandate the States now have to legislate for same-sex marriage, and to challenge the exclusion and inequality that was written into the Commonwealth Marriage Act last year.

In particular we hope the Tasmanian Same-Sex Marriage Act will stimulate a mature and rational debate about same-sex marriage and inspire the introduction of similar legislation in other States.

To this end we call for it to be subject to a Tasmanian Parliamentary Inquiry so that its legal, constitutional, social and cultural implications can be thoroughly examined.

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THE CONSTITUTIONAL BASIS FOR A STATE SAME-SEX MARRIAGE ACT

Professor of constitutional law at University of Sydney, George Williams, has provided a formal opinion on the constitutionality of the Tasmanian Same-Sex Marriage Bill.

In this extract Prof Williams explains why the Tasmanian legislation has a sound constitutional basis.

He draws a useful analogy with federal and state industrial awards.

I have been asked to advise on whether the proposed Same Sex Marriage Act 2005 (Tas) is inconsistent with the Marriage Act 1961 (Cth) such that it would be rendered inoperative under section 109 of the Australian Constitution.

The issue is to be determined by … the field covered by the Commonwealth law and whether the State law operates in this same field. If it does, the State law will be inoperative under section 109. The field ‘covered’ by a law is often difficult to discern and can require subjective judgment as the High Court has not laid down a precise test that can be applied. In this case, the field covered by the Marriage Act is likely to be either the field of marriage generally (whatever the sex of the partners) or more specifically the field of different-sex marriage.

My opinion is that the Commonwealth Marriage Act covers the field of marriage in so far as the concept is defined by that Act, that is between ‘a man and a woman to the exclusion of all others’. The Act is definite is establishing the boundaries of marriage for the purposes of that Act as being different-sex marriage. It is also significant that the Act only seeks to prevent the recognition of same-sex marriage in respect of certain unions under foreign law. The Act says nothing about such unions if recognised by State law.

An analogy can be drawn with the approach taken by the High Court to whether a federal industrial award overrides a State award. The court has held that, where a federal award makes no provision on a particular matter, a State award may be able to operate on that matter without being overridden under section 109.

If the proposed Same-Sex Marriage Act had sought to gain recognition for same-sex marriages under the Marriage Act it would be inconsistent with that Act (the Marriage Act provides exclusively for the marriage of different-sex couples). However, the Tasmanian Act recognises same-sex marriage without seeking to gain recognition under federal law. The Act instead recognises a form of commitment that is given force by Tasmanian law. The consequence is that, while the federal and States Acts both refer to what they call ‘marriage’, they are two laws that operate in different fields. This is further illustrated by the fact that if the State law provided for same-sex unions without using the term ‘marriage’ they would be even more clearly seen as laws that operate in different fields. This shows how, in substance, they are not inconsistent.

…my opinion is that the proposed Same-Sex Marriage Act would not be rendered inoperative under section 109 of the Constitution. It is not inconsistent with the Commonwealth Marriage Act because the two Acts operate in different fields.

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QUESTIONS AND ANSWERS ABOUT THE TASMANIAN SAME-SEX MARRIAGE BILL


~ Why is same-sex marriage important?

Many same-sex couples have a deep desire to marry, for all the same reasons that different-sex couples marry.

They should have that choice.

Same-sex marriage is also supported by many same-sex couples who don’t want to marry and many people who aren’t in same-sex relationships.

This is because they believe that

- everyone should be treated equally under the law,
- marriage brings many benefits to couples and their children which should also be available to same-sex couples and their children,
- the right to marry the partner of one’s choice is a key marker of adulthood and citizenship,
- denial of the right to marry stigmatises same-sex couples and their families as second-rate and dysfunctional,
- marriage should be reformed to keep pace with changing social attitudes or it will become increasingly irrelevant.


~ Isn’t marriage a federal issue?

Both the Federal and the State Governments have the power to make laws on marriage. It is what is called a “concurrent power”.

The States cannot make marriage laws which conflict with or duplicate Federal laws.

But now that marriage has been clearly defined as only for different-sex couples, the States are free to legislate for same-sex marriage.


~ Is this Bill constitutional?

Ultimately this decision lies in the hands of the High Court. Only it has the authority to judge whether a future Tasmanian Same-Sex Marriage Act and the Commonwealth Marriage Act are consistent and the former consequently valid.

However, Professor of constitutional law at University of Sydney, George Williams, believes the two pieces of legislation are not inconsistent, and that the Tasmanian legislation therefore has a sound constitutional basis.

In his formal opinion on the issue Professor Williams notes that the Tasmanian Same-Sex Marriage Bill and the Commonwealth Marriage Act cover different fields. He draws an analogy with federal and state industrial awards.

He concludes,

…my opinion is that the proposed Same-Sex Marriage Act would not be rendered inoperative under section 109 of the Constitution. It is not inconsistent with the Commonwealth Marriage Act because the two Acts operate in different fields.


~ Why is this Bill only for same-sex marriage?

The Federal Government has legislation dealing with different-sex marriage so this is an area in which the States cannot legislate.

The States are only free to legislate for same-sex marriage.

However, to ensure complete equality within the parameters set by Tasmanian law, the Tasmanian Same-Sex Marriage Bill duplicates, as far as possible, the provisions of the Commonwealth Marriage Act.


~ Why are there two accompanying Bills?

The Tasmanian Same-Sex Marriage Bill 2005 has two accompanying Bills, one establishing a registry of Tasmanian same-sex marriage celebrants, the other providing for divorce.

To ensure complete equality for same and different sex couples, these Bills are designed to mirror as exactly as possible the Commonwealth Marriage Act and relevant provisions of the Commonwealth Family Law Act.

However, there are policy issues raised by transferring federal provisions to state jurisdiction. This include whether divorce is best handled by the State Supreme Court or a hypothetical State Family Court.

To allow these issues to be considered distinctly from the substantive issue of same-sex marriage the two accompanying Bills have been drafted and will be introduced at the same time as the Same-Sex Marriage Bill.


~ Aren’t same-sex couples already equal under Tasmanian law?

De facto same-sex couples have almost all the same rights as married couples in Tasmanian law with the exception of general placement adoption.

Same-sex couples can also register Deeds of Relationship with the State Registry of Births, Deaths and Marriages to make it easier to prove their relationship status if challenged.

However, neither de facto recognition, nor partnership registration is the equivalent of marriage.

Marriage is the recognition of a special, life-long commitment between two people, and it remains off-limits to same-sex couples until this legislation is passed.


~ Will this Bill make same-sex marriages legal under federal laws and in other states?

The Tasmanian Same-Sex Marriage Bill gives rights and responsibilities to same-sex married couples in Tasmanian law only.

Married Tasmanian same-sex couples will not be recognised under federal law (eg income tax, social security and immigration) or the laws of other states and territories.

Same-sex couples married overseas are not recognised under the Tasmanian Same-Sex Marriage Bill.

This was precluded by amendments to the Commonwealth Marriage Act by Howard Government last year.


~ Will this Bill force churches to marry same-sex couples contrary to church doctrine?

No.

According to part IV, section 10, clause 2 of the Same-Sex Marriage Bill 2005

Nothing in this Part:

- imposes an obligation on an authorized celebrant, being a minister of religion, to solemnize any same-sex marriage; or
- prevents such an authorized celebrant from making it a condition of his or her solemnizing a same-sex marriage that:
(i) longer notice of intention to marry than that required by this Act is given; or
(ii) requirements additional to those provided by this Act are observed.


~ What is the position of Tasmania’s major parties?

At its 2009 State Conference the Tasmanian ALP voted overwhelmingly to support the principle of allowing same-sex couples to marry.

A spokesperson for the State Liberal Party has said the Party will carefully consider the Greens’ legislation (Examiner, 8.11.10)