Opponents of a Tasmanian same-sex marriage have declared often and loudly that “marriage is a federal issue”.
It was this slogan that defeated our state’s attempt to lead the nation towards marriage equality last year. It has kept the issue off the parliamentary agenda since.
As recently as last Thursday, Guy Barnett, from the Save Marriage Coalition, declaimed to the Tasmanian media that,
“Marriage is a federal not a state issue and Section 51(21) of the Constitution says so.” HERE:
But the very next day a NSW parliamentary report labelled that view “an error of fact”.
The NSW Upper House Social Issues Committee’s report on a state same-sex marriage bill was crystal clear about a state’s power:
“The Committee reached the conclusion that the New South Wales Parliament has the power to legislate on the topic of marriage, including same-sex marriage.”
To re-inforce the point the Committee cited its sources:
“Legal experts who gave evidence to the Committee (both for and against same-sex marriage) agreed that the New South Wales Parliament possesses the unqualified power to legislate on the subject of marriage.”
And just in case anyone was still in doubt, the Committee came as close as parliamentary committees come to naming-up a public misinformation campaign:
“Many submission makers asserted a strongly held view that only the Federal Parliament has the power to legislate in respect of marriage. The Committee has found this to be an error of fact. There is no doubt that Australian states have the power to legislate on the subject of marriage. For the purpose of informed public debate on this subject, the Committee considers it important to clarify this point.”
Having answered “yes” to the question “can the states legislate for same-sex marriages?”, the Committee was less certain when answering the question, “should the states legislate for same-sex marriages”.
It noted that a state law could be subject to a High Court challenge. It expressed concern about the lack of recognition of state same-sex marriages across state boundaries and in federal law. It concluded,
“…equal marriage rights for all Australians may best be achieved under Commonwealth legislation.” (p xii)
Of course, Commonwealth legislation would be best because it would enable the greatest number of same-sex couples to marry. But that is blocked for as long as Tony Abbott refuses to allow Coalition members a conscience vote.
Meanwhile, neither of the Committee’s concerns should deter a state from moving forward. Plenty of state and Commonwealth laws are potentially actionable in the High Court, but that doesn’t stop them being passed. Indeed, any federal amendment allowing same-sex marriages is just as likely as an equivalent state law to be dragged before the Court. But that doesn’t stop efforts at federal reform.
As for a lack of interstate and federal recognition, that was also the case for opposite-sex and same-sex de facto relationships and civil partnerships, both of which were recognised first in one or two states before this recognition spread across other states and then to the federal sphere. This is the logic of federalism. It wasn’t a problem then. Why would it be a problem for same-sex marriages now?
The NSW report has exploded the myth that states can’t enact laws for same-sex marriages. As a result, I hope to see the Tasmanian Upper House, which defeated the Same-Sex Marriage Bill by only two votes last year, revisit that Bill sooner rather than later.
But it left hanging the question of whether states are the best way forward for the issue. It’s now up to supporters of marriage equality to make that case as convincingly as we can.
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Here are some other key findings of the Social Issues Committee of the NSW Legislative Council (the Committee is made up of three Liberal and National Party members and three Labor and Green members. The chair is from the National Party).
The Committee found that there is a distinction between religious and civil marriage and that the exclusion of same-sex couples from civil marriage is discriminatory.
“The Committee acknowledges the distinction between marriage as a religious and civil institution and believes that the law should be non-discriminatory in its operation. We note that amendments to the Commonwealth Sex Discrimination Act have made discrimination on the basis of sexual orientation unlawful except as provided for in the Marriage Act. In the Committee’s view, this exception effectively acknowledges that the current operation of the Marriage Act is discriminatory.”
The Committee found that marriage law changes over time to reflect social realities.
“In the Committee’s view it is evident that the social meaning of marriage has changed over time. The availability of no-fault divorce, the ban on marriage as a defence to rape and other changes to the law were made to reflect developments in community understanding about what marriage should and should not be.”
The Committee found that state civil unions are not widely supported and add nothing to existing recognition in NSW. This finding applies even more in Tasmania where our existing Deed of Relationship scheme allows for official ceremonies, unlike the NSW relationship register.
“The Committee found that there was little support for civil unions from both proponents and objectors to same-sex marriage. The Committee acknowledges that New South Wales already has a system of relationship recognition for same-sex couples through its relationship register and recognition of de facto status. In our view a civil union scheme adds little to the existing legal system in practical terms.”
Author: Rodney Croome
Publication: Tasmanian Times.com
Date: 5 August 2013