Tasmanian Same-Sex Marriage legislation
The Tasmanian Gay and Lesbian Rights Group is currently campaigning for state same-sex marriage legislation.
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.
For questions and answers on state same-sex marriage legislation materials click here.
For formal legal opinions on state same-sex marriage legislation click here and here, and for a summary of constitutional issues click here.
For more resources on same-sex marriage here.
For a copy of the legislation itself, as presented in 2005, scroll down.
Tasmanian Same-Sex Marriage legislation: questions and answers
Questions and answers
~ 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.
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Tasmanian Same-Sex Marriage Bill: the constitutional issues
University of NSW constitutional law expert, Professor 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.
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Advice re proposed Same-Sex Marriage Act
This formal opinion on the constitutionality of the Tasmanian Same-Sex Marriage Bill 2005 was provided by University of NSW constitutional law expert, Prof George Williams, in March 2005.
1. 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.
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Opinion on Constitutional Validity of Tasmanian Same-Sex Marriage Bill
This opinion on the constitutional validty of state same-sex marriage legislation was written by Melbourne University constitutional law expert, Associate Professor, Kristen Walker.
It is my view that the Bill to provide for same-sex marriage under Tasmanian law would be a valid law of the Tasmanian Parliament, if passed. My reasons for this view are as follows:
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Same-Sex Marriage Bill 2005
(Brought in by Nicholas James McKim MHA)
A BILL FOR
An Act providing for marriage between adults of the same sex.
Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:
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Same-Sex Marriage (Celebrant & Registration) Bill 2005
(Brought in by Nicholas James McKim MHA)
A BILL FOR
An Act providing for the establishment and maintenance of registers of same-sex marriages and same-sex marriage celebrants.
Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:
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Same-Sex Marriage (Dissolution & Annulment) Bill 2005
(Brought in by Nicholas James McKim MHA)
A BILL FOR
An Act providing for the dissolution and annulment of same-sex marriages.
Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:
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Criticism of state same-sex marriage legislation
What follows is a preliminary response from the Tasmanian Gay and Lesbian Rights Group to advice crititical of state same-sex marriage legislation from Assoc Prof of Law at Sydney University, Jenni Millbank, to the NSW Gay and Lesbian Rights Lobby. The original advice can be found here.
Addressing concerns about state same-sex marriage legislation
This statement was issued by the TGLRG on 5.5.05.
A large number of concerns have been raised about state same-sex marriage legislation. Let’s have a look at them.
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