When the Same-Sex Marriage Bill was narrowly defeated in the Upper House last year the main concern of MLCs was the constitutionality of the Bill.
Based on advice from people like former governor, Bill Cox, MLCs thought it unlikely the Bill would be upheld in the High Court.
Since then much has changed. The NSW parliament and the Tasmanian Law Reform Institute have both issued reports confirming that the states do have the power to make marriage laws.
Australia’s leading constitutional barrister, Bret Walker SC, has issued advice which says the Same-Sex Marriage Bill is constitutionally valid.
https://www.australianmarriageequality.org/2013/10/18/media-release-expert-legal-opinion-gives-green-light-for-tasmanian-same-sex-marriage-bill/
The importance of the Walker advice cannot be under-estimated.
Bret Walker is held in very high esteem by precisely those MLCs whose constitutional concerns sank the Bill last year.
He has been described by Jim Wilkinson as “Australia’s acknowledged leading constitutional lawyer”, by Greg Hall as “the country’s top constitutional law expert” and by Paul Harriss as “one of the very best in Australia”.
On top of this, the Walker advice is the most detailed, definitive and decisive of all the legal opinions presented thus far.
Walker and his co-authors Chris Young and Perry Herzfeld surveyed the history of marriage law in Australia and arrived at the conclusion that the Tasmanian Bill is valid because there are no points of conflict between it and the federal Marriage Act.
In twelve months the debate has shifted so much that a Bill previously seen as constitutionally untenable is now considered entirely safe.
On Tuesday the Upper House will have a chance to revisit the same-sex marriage debate in the light of all the new evidence it has before it.
Ruth Forrest has a motion before the Chamber to bring back the Same-Sex Marriage Bill for further debate.
Already, one MLC whose chief concern was the constitution, Vanessa Goodwin, has found a new reason to block the Bill.
She has said Tasmania should wait until the High Court decides a federal government challenge to the newly-enacted ACT same-sex marriage law.
But this is a weak argument. What the High Court says about the ACT law may have no bearing whatsoever on whether the Tasmanian Bill will be upheld: the ACT is in a different constitutional position to Tasmania and, according to Bret Walker, its law is likely to fail because it is drafted in a completely different way to Tasmania’s.
For twelve months many people have worked very hard to provide Upper House members with the information they said they needed before they could reconsider their position on the Same-Sex Marriage Bill.
This work was undertaken out of respect for Upper House members and their concerns.
The information they wanted is now before them.
We can only hope they reciprocate the respect that has been shown them by accepting the new information and voting to revisit the Same-Sex Marriage Bill.
To send a letter to your Upper House member in support of the Same-Sex Marriage Bill, go to
https://www.australianmarriageequality.org/contact-tasmanian-government
To sign the petition, go to
http://www.parliament.tas.gov.au/EPetitions/Council/CurrentEPetition.aspx?PetNum=16&lIndex=-1
To see the latest Tasmanian marriage equality video, go to
http://www.youtube.com/watch?v=_JLhK6TFq3Q&feature=youtu.be
Publication: Tasmanian Times
Author: Rodney Croome
Date: 28 October 2013