Former Tasmanian Liberal Senator, Guy Barnett, has been caught out contradicting himself on whether states like Tasmania can legislate for same-sex marriage.
On Tuesday, Barnett attacked Lara Giddings’ decision that Tasmania will go it alone on marriage equality by saying the states don’t have the power to enact same-sex marriage laws.
But in a letter published in the Mercury in 2006, then Senator Barnett appears to admit the states do have the power.
Here’s Barnett on Tuesday, from a report in the Examiner:
‘Mr Barnett, who is a lawyer, disputed constitutional expert Professor George Williams’s advice that the state had the power to legalise gay marriage.’
‘”The reason federal MPs are currently debating legalising same-sex marriage is because marriage is a matter for the Federal Parliament. The constitution says so”, he said.’
As George Williams has pointed out, the Constitution says nothing of the sort. The power to make laws for marriage is shared by the Commonwealth and the states. This is why heterosexual marriages were all performed under state law until the enactment of the federal Marriage Act in 1961.
Williams’ point is that when John Howard, at Guy Barnett’s urging, amended the Marriage Act in 2004 to definitively limit marriage to heterosexual couples, the power to make laws for same-sex marriages fell to the states. In legal-speak the federal Marriage Act does not “cover the field” of all marriages. If the Commonwealth wanted to “cover the field” and thereby stop states from legislating for same-sex marriage, it would have to pass an amendment to the Marriage Act explicitly banning same-sex marriages across the board.
That brings us back to Guy Barnett. On June 22nd, 2006 the Mercury published a letter in which he congratulates the Howard Government for quashing the ACT Civil Union Act because it was gay marriage “by another name”. He then goes on to express his fear that other Labor states may follow because the federal Marriage Act doesn’t “cover the field”.
‘Unfortunately one can expect other Labor states to follow the ACT lead and that is why my preference is for the federal marriage law to be amended and strengthened to withstand any attempt to mimic marriage and block any ACT style legislation in the future. Our federal marriage law should “cover the field”.’
There you have it. The man who drove the 2004 Howard marriage amendment admits that unless the Marriage Act is “amended and strengthened” states can legislate for same-sex marriage. By declaring the federal Marriage Act should “cover the field” Guy Barnett is conceding it currently doesn’t.
Barnett isn’t the only opponent of marriage equality who’s conceded states can legislate for marriage equality.
At a Senate marriage equality inquiry hearing in Sydney on May 4th this year “Lawyers for the Preservation of the Definition of Marriage” did the same.
Under questioning, their representative, Mr Neville Rochow SC, agreed,
‘There is nothing to stop the state passing a bill that says, “This is a bill regarding same-sex marriage”.’
Whereas Barnett was regretting the Feds’ mistake in not reserving all power over same-sex marriage for themselves, the agenda of LPDM was to deny that the Feds have any power to make same-sex marriage laws at all, thereby leaving that power to the states.
But the result is the same. Here we have social conservatives who oppose same-sex marriage nonetheless acknowledging that the states have the power to enact same-sex marriage laws (at least until one of them suddenly changed his mind).
Guy Barnett’s shifting position should be subject to greater scrutiny. Why has he contradicted himself? Is it because he is seeking to return to politics as a Liberal candidate? Is it because the Liberals have disregarded legal reality and made a political decision that they must not concede state same-sex marriage laws are possible? Are they fearful that such a concession would open them up to greater pressure to allow a conscience vote on state laws? Are they tightly controlling their message because they are afraid of exposing the divisions within their ranks over the issue of marriage equality?
Whatever the answer may be to these quotidian political questions, one thing is clear: just as support for marriage equality crosses the left / right divide, so too does acknowledgement that the states can legislate in this area.
• GAY LOBBY FABRICATION & DECEIT
By Guy Barnett
9 August 2012
“Gay lobby activist, Rodney Croome’s media release today accusing me of changing my position on marriage is nothing more than a fabrication of the facts, deceitful and wrong, said Guy Barnett.
“I have always held the view that the Federal Parliament was and is the correct Parliament to pass laws with respect to marriage. The Constitution confirms this advice, as does Premier Giddings own legal advice of 12 months ago. The State Labor Government’s attempt to legalise same-sex marriage in Tasmania is a sop to the Greens and a distraction to our hurting economy.
“Marriage is a bedrock institution, between a man and a woman that has been around for thousands of years. It is not a fashion to be updated”, he said.
• TASMANIAN GAY AND LESBIAN RIGHTS GROUP
Friday August 10th 2012
POLL SHOWS MAJORITY OF TASMANIANS SUPPORT MARRIAGE EQUALITY AND WANT THEIR STATE TO LEAD THE WAY
HIGH YOUTH SUPPORT SHOWS REFORM WILL BE “DEFINING MOMENT FOR AN ENTIRE GENERATION”
LARA GIDDINGS TO ADDRESS RALLY IN HOBART TOMORROW
A new poll released today shows a majority of Tasmanians believe same-sex couples should be able to marry, and a majority support Tasmania being the first state to enact the reform.
The poll of 1000 people conducted by EMRS Research and commissioned by Australian Marriage Equality was almost entirely completed before Premier Lara Giddings made her announcement that Tasmania will be the first place in Tasmania to allow same-sex couples to wed*.
Tasmanian Gay and Lesbian Rights Group spokesperson, Rodney Croome, said,
“These results vindicate Lara Gidding’s decision to move ahead on marriage equality.”
“Tasmanians can see that we have nothing to lose and everything to gain from this landmark reform.”
The poll found that 61% of Tasmanians believe same-sex couples should be allowed to marry (up from 59% in September last year), while 54% believe the state should go ahead with its own marriage equality laws.
There was majority support for marriage equality in each region of the state, with strong support among young people aged 18-34 (85%) women (68%) and people raising children (72%).
Young people also strongly support Tasmanian-specific marriage equality laws with 78% of those aged 18-34 saying they want Tasmania to be the first state to act.
“High youth support for Tasmania leading the way on marriage equality shows that this reform will be a defining moment for an entire generation of Tasmanians”, Mr Croome said.
Support was very high among Green and Labor voters (88% and 74%) but divided among Liberal voters (43% in favour vs 49% against with 9% unsure).
Mr Croome said the key result for the political parties to consider is that a majority of undecided voters – who make up a decisive 25% of the electorate according to an EMRS poll released yesterday – support marriage equality (59%) and support Tasmania taking the lead (52%).
“What this poll shows is that Labor’s support for marriage equality will help them attract the undecided voters they need to stay in power.”
“By the same token, one of the best ways for the Liberals to attract the undecided voters they need to win government is to soften their hard line against reform and grant of a conscience vote.”
“This is consistent with a national Galaxy poll released on Monday which shows that there is a net gain of voters for the federal Liberal Party if it allows a conscience vote on marriage equality.”
The full report is here: Australian_Marriage_Equality_Research_Report_August_2012.pdf
*According to EMRS, 85% of the responses were collected before the announcement. The remaining 15% of responses had no discernible impact on the result.
• LARA GIDDINGS TO SPEAK AT MARRIAGE EQUALITY RALLY
TOP TASSIE SINGER TO PERFORM “AUSTRALIA’S NEWEST WEDDING SONG”
Supporters of marriage equality will have a chance to show their support for reform at a rally outside Parliament House in Hobart tomorrow at 1pm.
Tasmanian Premier, Lara Giddings, will address the rally, becoming the first Australian state premier ever to do so.
The rally will also hear from renowned Tasmanian Indigenous singer song-writer, Dewayne Everett-Smith, who will perform his hit single and Australia’s newest wedding song “It’s Like Love”.
Tasmanian Gay and Lesbian Rights Group spokesperson, Rodney Croome, said,
“Many Tasmanians are proud our state is leading the way on marriage equality and this is an opportunity for all of us to show our support.”
“Like all those people who have been inspired by the Premier’s support for marriage equality I am very excited she has agreed to speak.”
There will be a range of other speakers supporting marriage equality including Greens’ leader Nick McKim, columnist, popular newspaper columnist, Rebecca Fitzgibbon, and Els McIntosh the mother of a gay son.
First published: 2012-08-09 09:34 AM
• Greens Challenge Premier on Marriage Equality
Greens’ Gender and Sexuality spokesperson, Tammy Franks MLC, will be speaking at the Equal Marriage rally
today on SA Parliament House steps at 1pm as part of a National Day of Action across Australia in support of
“On the eighth anniversary of the former Howard government’s changes to the Marriage Act excluding same sex couples from marrying, the ideal of marriage equality is now closer than ever before,” Ms Franks said.
“The most recent Galaxy poll has shown 2/3 of Australians support the right for same sex couples to be able to marry their partners. Overwhelmingly the majority of Australian people support marriage equality and oppose the continued discrimination and homophobia that blights the lives of same sex-attracted citizens.
“It’s encouraging that Tasmania has led the way at a state level announcing it will legislate to remove discrimination from marriage and thus seize the ‘first mover advantage’. This in turn will see that state receive an economic boost from the lucrative ‘pink dollar’ wedding and tourist industry – estimated to be as much as $96million according to authoritative studies from the Williams Institute.
“I’m pleased that Premier Jay Weatherill has sent a message of support to his Tasmanian counterparts, as recent news shows yet another world leader, in this case New Zealand Prime Minister John Key, throwing his support behind marriage equality, joining US President Barrack Obama.
“If the Premier if serious about his commitment to Marriage Equality he should seek advice from the Crown Solicitors Office on the Greens’ Marriage Equality Bill and make it publicly available.
“I’m certain that it’s not a matter of if marriage equality will happen, but of when it will happen. Today on the steps of Parliament House and all around Australia we are a part of history in the making.
“While the three Equal Marriage bills* currently before the federal parliament received an unprecedented level of support from recent public consultations, if the federal government can’t or won’t act, I’ve indicated that I’ll then be bringing my state marriage equality bill to a vote in SA when Parliament resumes,” Ms Franks concluded.
Tammy Franks MLC and Senator Sarah Hanson-Young will both be speaking at the Equal Marriage rally.
*Put forward by Greens’ Sarah-Hanson Young and Adam Bandt, MP and Labor’s Steven Jones, MP
• AUSTRALIAN MARRIAGE EQUALITY
Media Release: 11th of August, 2012
MEDIA ALERT: GAY MARRIAGE RALLY 1PM AT TOWN HALL
Sydneysiders will join thousands of marriage equality supporters and politicians around the nation at rallies to show support for reform.
The rally will be held at Sydney Town Hall from 1pm and speakers will include:
Alex Greenwich, Australian Marriage Equality
Peter Urmson, Sydney Mardi Gras
Clover Moore, Lord Mayor City of Sydney
Paul McAleer, Sydney Branch Secretary Maritime Union of Australia
Irene Dougtney, Greens Councillor City of Sydney
Speakers at the rallies in other major cities include:
Tasmanian Premier Lara Giddings
South Australian Premier Jay Weatherill
Federal Member for Melbourne Adam Bandt
Labor Senator for Western Australia Louise Pratt
Greens Senator for South Australian Sarah Hanson-Young
This news comes as a poll released this week showed support for marriage equality was at it’s highest level ever of 64% (details here). Australian Marriage Equality, National Convener, who will be speaking at the Sydney rally said:
“Public and parliamentary support for marriage equality is at it’s highest ever; this is because politicians and everyday Australians are continuing to open their hearts and minds to the importance of the reform”
“The rallies will highlight the political leaders, couples, and families who believe marriage equality will be a defining reform of our generation”
Mr Greenwich said he expects to see many families attend the rallies:
“Marriage is about strengthening family bonds and this includes the growing number of Australian family with gay and lesbian members”
Australian Marriage Equality highlighted the importance of marriage equality to families in a new ad campaign released this week (details here: http://www.youtube.com/watch?v=wrnE5VY3yRM&feature=youtu.be).
A full listing of the rallies and contact people can be found here: http://www.australianmarriageequality.com/wp/events/upcoming-rallies-for-marriage-equality/
•AUSTRALIAN MARRIAGE EQUALITY
Media Release: 11th of August, 2012
GAY MARRIAGE RALLIES SEND MESSAGE STATES TO LEAD IF FEDS FAIL SA GOVERNMENT FOLLOWS TASSIE LEAD ON STATE GAY MARRIAGE
Thousands of marriage equality supporters and their families have marched in rallies across Australia calling on the federal parliament to deliver one of the most popular reforms before it.
At the Adelaide rally, South Australian Premier, Jay Weatherill, declared his government will support a Green’s state-based same-sex marriage bill, following the lead of Tasmanian Premier Lara Giddings who spoke at the Hobart rally.
“The message from today’s events couldn’t be clearer – Australians want marriage equality and if the federal government fails to deliver the reform will happen state by state and territory by territory”, Mr Greenwich said.
“With the Tasmanian, South Australian and ACT Governments all moving ahead on the issue we are more hopeful than ever before that same-sex marriages will occur on Australian soil this year”
Mr Greenwich said it was time for Canberra to stop standing in the way of reform.
“This reform will happen so the only question for MPs and Senators is what side of history do they want to be on?”
Mr Greenwich congratulated Jay Weatherill for joining Lara Giddings and showing leadership on the reform.
“The international experience shows us when heads of government back this reform it happens.”
Mr Greenwich cited the pivotal roles played by New York Governor, Andrew Cuomo, Washington Governor, Christine Gregoire, and the President of Argentina, Cristina Kircher.
The news comes as a poll released this week showed support for marriage equality at it’s highest level of 64% and the launch of a new ad campaign about how important the reform is to families across Australia. (Details here: http://www.australianmarriageequality.com/wp/2012/08/06/new-poll-gay-marriage-support-at-highest-level-ever-coalition-free-vote-would-be-vote-winner/ )
• TASMANIAN GAY AND LESBIAN RIGHTS GROUP
Saturday August 11th 2012
500 BRAVE RAIN IN HOBART TO SUPPORT MARRIAGE EQUALITY ADVOCATES WELCOME SOUTH AUSTRALIAN DECISION TO FOLLOW TASSIE
“Jay Weatherill’s announcement vindicates Lara’s Gidding’s decision to pursue marriage equality at a state level.”
– Rodney Croome
500 people braved cold and wet conditions in Hobart today to show their support for marriage equality at a rally addressed by State Premier, Lara Giddings.
Tasmanian Gay and Lesbian Rights Group spokesperson, Rodney Croome, said the turn-out on such a gloomy day shows how excited many Tasmanians are about the state leading the way on marriage equality.
“The rally was further evidence of what recent polls have already shown – Tasmanians support marriage equality and want their state to take the lead.”
Mr Croome welcomed reports from Adelaide that South Australian Premier, Jay Weatherill, has followed Lara Giddings’ lead and announced his Government will have a conscience vote on marriage equality. South Australian Liberal leader, Isobel Redmond, has also said the SA Liberals will also have a conscience vote.
“Jay Weatherill’s announcement vindicates Lara’s Gidding’s decision to pursue marriage equality at a state level”, Mr Croome said.
“The SA Liberals’ conscience vote will increase pressure on Will Hodgman and the Tasmanian Liberals to do the same.”
“The clear message to federal parliament is that if it fails to provide equality, the states will instead.”
Today’s rally heard from the mother of a gay son, Els McIntosh, and Els’ daughter, Naida, about the importance of marriage equality for families.
Tasmanian Greens Leader, Nick McKim, who originally proposed state same-sex marriage legislation, called for the Liberals to have a conscience vote.
Premier, Lara Giddings, also called for a Liberal conscience vote and compared the struggle for marriage equality to the campaign for allowing women the vote.
Representatives from Rainbow Labor received a huge cheer for their role in convincing the Tasmanian Labor Party to support marriage equality, and transgender advocate and rally MC, Martine Delaney, talked about how some transgender people are forced to divorce when they transition to the true gender.
Columnist, Rebecca Fitzgibbon, spoke about the importance of equality for a strong society and young Catholic, Anna Young, spoke about strong support for marriage equality among Christians and young people.
Gay rights campaigner, Rodney Croome, challenged “family values” campaigners to explain how strengthening the relationships and families of gay people damages other families, and renowned Tasmanian singer-songwriter, Dewayne Everettsmith, brought tears to many people’s eyes with his hit love song, “It’s Like Love”.
• MARRIAGE EQUALITY SUPPORT GROWS
As National Day of Action Sees SA Labor and Liberal Leaders Grant Conscience Vote
Nick McKim MP
Saturday, 11 August 2012
The Tasmanian Greens today said that Marriage Equality is an issue whose time has come and that those who oppose it stand on the wrong side of history.
Greens Leader Nick McKim MP challenged Liberal Leader Will Hodgman to allow a conscience vote for Liberal MPs after South Australian Liberal Leader Isobel Redmond joined South Australian Premier Jay Weatherall in granting a conscience vote to their MPs on the issue of Marriage Equality.
“Mr Hodgman is looking more and more dictatorial now that more reasonable leaders have shown how it should be done,” Mr McKim said.
“On this Day of Action across Australia calling for marriage equality, which is the eighth anniversary of the former Howard government’s changes to the Marriage Act excluding same sex couples from marrying, Tasmania can stand proud as a champion for equality leading the nation.”
“We have gone from being the laughing stock of the nation in the late 1990s to now leading the nation by the Labor-Green government’s commitment to remove this last enshrined bastion of discrimination based on sexuality.”
“Mr Hodgman must decide whether he wants to remembered as either a champion for equality, or a dinasour defending discrimination while muzzling his MPs,” Mr McKim said.
• Australian Christian Lobby: Labor has chance to equal Coalition by protecting marriage
The Federal Government must intervene to stop Australia’s marriage laws from becoming a ‘hodge podge’ according to the Australian Christian Lobby.
The call follows announcements by the South Australian and ACT Governments to introduce homosexual marriage or marriage-mimicking laws.
ACL Managing Director Jim Wallace said Prime Minister Julia Gillard went to the 2010 election promising to up-hold marriage between a man and a woman.
“Gay activists and Green politicians are now leading Labor States like Tasmania and South Australia by the nose towards homosexual ‘marriage’,” Mr Wallace said.
“Integrity does matter in politics and Federal Labor could choose to equal the Coalition’s integrity on marriage by intervening to stop South Australia, Tasmania and the ACT from legislating a new definition of marriage.
“The Coalition’s resolve to keep its election promise is to be applauded, despite the Greens and activists wanting it broken.
“The Government needs to act swiftly before Australia ends up with different marriage laws between States and the Commonwealth.
“The Attorney General must defend marriage against attempts by States and Territories to redefine it, even if it means going to the High Court,” Mr Wallace said.
“The Government also must signal that it will use the powers of the Parliament to overturn any marriage-mimicking law passed in the coming week by the Greens and Labor in the ACT.”