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.
~ 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 their relationships 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 State Conference on October 31st last year the Tasmanian branch of the Australian Labor Party almost unanimously passed the following motion.
Motion 38: UNIVERSITY BRANCH (LAUNCESTON)
Same Sex Marriage
ALP Tasmania expresses its disappointment at comments by Federal Shadow Attorney-General Nicola Roxon that Labor is committed "not to change Australia's Marriage Act to recognise gay marriages" and would actively seek to amend legislation to close off any options for same sex couples that "undermine that commitment" (The Australian, 27 April 2004).
ALP Tasmania believes that this position is inconsistent with paragraph 19 of Chapter 7 of its Federal Platform, which says that Labor will "audit Commonwealth Legislation to amend provisions that unfairly discriminate against any person on the grounds of sexuality or gender identity".
ALP Tasmania also dismisses arguments against same sex marriage as ridiculous and spurious.
ALP Tasmania calls on the Federal Parliamentary Labor Party to adopt policies that truly eliminate discrimination against same sex couples, and a Latham Labor Government to amend the Marriage Act to allow for same sex marriage.
The Tasmanian Liberal Party has no stated position on the issue.