Monday, 23 June 2008

Tasmanian Greens seek to allow gay marriage

On Friday the Tasmanian Greens announced that they would be seeking that Tasmania enact legislation to allow gay marriage.

If agreed to by the Labor Government, it is possible that Tasmania could allow people of the same sex to marry.

Currently, the law covering marriage is the Commonwealth Marriage Act. It was amended several years ago to be gender specific, so that marriage is defined as "between a man and a woman to the exclusion of all others for life".

How the Constitution works is that the Commonwealth Parliament is allowed to legislate under certain heads of power, for example, marriage and divorce. The Commonwealth Parliament doesn't have to, if it doesn't want to, and even if it does legislate, State laws are still valid unless the Commonwealth laws "cover the field" or specifically override State laws.

An example of where Commonwealth and State laws work side by side is in the slaughter of cattle in abbatoirs.

So the argument goes- if the Commonwealth does not specifically outlaw same sex marriage in its definition- there is nothing to prevent a State to legislate to allow same sex marriage.

Professor George Williams

This is the view taken by Professor George Williams, one of Australia's leading constitutional experts. Professor Williams, who has been asked separately to report on harmonising Australia's industrial relations systems, had this to say to the ABC in 2006, in response to the suggestion that the Marriage Act should be amended to exclude same sex marriages:

GEORGE WILLIAMS: I think they may have to amend it to achieve what they want and that is to remove any possibility of Territory or State same sex unions being called marriages, and that's because when we had the amendments in the Federal Parliament a year or two ago, they explicitly say that the Federal Marriage Act is about the marriage between a man and a woman and is not about same sex marriage.

My view actually is they've vacated the field. They've left open this gap for which the States and Territories might now enter to set up their own regime of marriage for same sex couples. If the Federal Government wants to avoid that possibility, I think they'll have to introduce another amendment that will say our law not only deals with heterosexual marriage, but specifically excludes the possibility of the States and Territories covering this other area.

Nick McKim

The Tasmanian Greens have taken this all to heart. This is what Deputy Leader Nick McKim had to say on Friday:

The Tasmanian Greens today announced an intention to table legislation to provide for same-sex marriage in Tasmania when the House of Assembly resumes on July 1st.

Greens Deputy Leader Nick McKim MP said that the Same Sex Marriage Bill 2008 is based on values like respect and tolerance, which he said most Tasmanians would share.

“If we are fair dinkum about removing discrimination we should give all Tasmanians access to the fundamental institutions of our society, including marriage,” Mr McKim said.

“There is no such thing as ‘mostly equal’, and until legislators provide same-sex couples with access to all civil institutions we will continue to discriminate against large numbers of people who deserve much better.”

“Recent progress on same-sex marriage in places like California has shown that there is nothing to fear and everything to be gained by this kind of progressive initiative.”

“Most Tasmanians share the values of tolerance and respect on which this legislation is based.”

“This legislation would grant rights not currently enjoyed by couples registered under Tasmania’s very good Relationships Act 2004, including equal rights to adopt.”

Mr McKim again released legal advice from leading constitutional expert Professor George Williams of the University of New South Wales that confirms that there is no constitutional barrier to a State legislating to create a same-sex marriage system.

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