Coroner & Legal
Tasmania is the logical ‘first mover’ on marriage equality
Tasmanian Premier Lara Giddings has announced that Tasmania will pass new laws allowing same-sex couples to marry.
For some people it will seem strange that Tasmania could be the first place in Australia to allow same-sex marriages. Tassie has a reputation for homophobia that comes from being the last Australian state to decriminalise same-sex relationships. Besides, isn’t marriage a federal issue?
Since homosexuality was decriminalised in 1997, Tasmania’s progress on the recognition of same-sex relationships has outstripped the other states.
We were the first state or territory to enact a scheme for formally recognising same-sex relationships, the second to allow same-sex couples official ceremonies and the first to recognise overseas same-sex marriages.
Tasmanian Labor was the first to formally endorse the principle of marriage equality and the Tasmanian Parliament, the first to do the same.
Some might say we have made this rapid evolution towards equality despite our history, but I think it is because if it.
The divisive and drawn-out decriminalisation debate (not to mention the post-convict “sodomy-shame” that haunted us for a over century), has heightened our awareness of the damage caused by prejudice and discrimination.
Whatever the reason for Tasmania’s rapid progress, that progress makes marriage equality the next logical step for the Apple Isle, and our island the most logical place for marriage equality to begin in Australia.
But does a state like Tasmania have the power to take such an initiative?
It is a common misapprehension that because the Marriage Act is a federal law, only the federal government can make laws for marriage.
In fact, as constitutional experts like Professor George Williams have pointed out, the federal constitutional marriage power is shared by the Commonwealth and state governments.
If there is a type of marriage not covered by federal law, the power to make laws for that type of marriage falls to the states.
This is why heterosexual marriages were performed under state laws until the federal Marriage Act was enacted in 1961.
It is also why, in the absence of federal laws about same-sex marriage, the states can now enact such laws.
Ironically, the person who can take most credit for this is John Howard.
When he amended the federal Marriage Act in 2004 to make it crystal clear that federal law only concerns itself with heterosexual unions, he also inadvertently clarified that the states have free rein to marry same-sex couples.
It shouldn’t be a surprise that the states can and should lead on this issue.
The recognition of same-sex de facto relationships and same-sex parenting occurred state-by-state before it migrated to the federal level in 2008.
In every other federal nation where marriage equality has moved forward, including Canada, the US, Argentina, Mexico and Brazil, it happened first at a state or provincial level. Even in a unitary nation like the UK it is Scotland that is taking the lead.
Seen this way, it would be remarkable and anomalous if marriage equality didn’t begin at a state level in Australia.
Of course, there are constitutional experts who disagree, arguing that the Howard government intended to stop the states as well as the Commonwealth recognising same-sex marriages (even though Howard never said this, and other proponents of the 2004 amendment admit it was an omission).
But this shouldn’t stop Tasmania acting.
The federal and state governments often enact laws that raise constitutional questions – Howard’s WorkChoices is an excellent example.
Indeed, Tasmania should relish the chance to defend its same-sex marriage law in the High Court (should anyone be willing and able to challenge those laws, which is by no means certain).
For most of my adult life, Tasmania has been on the wrong side of history in the High Court, defending dams that were never built and anti-gay laws that were later repealed.
Should Tassie become the High Court champion of what has been dubbed “the civil rights battle of our time”, it will reinforce the message about how much the island has transformed. Even if Tasmania’s marriage equality law is struck down by the High Court, Tasmania and marriage equality still win.
In the time it takes for the court to hear the case, thousands of same-sex couples from all over Australia will be married in Tasmania. They will have spent an estimated $100 million on their weddings, giving the state economy a much-needed boost.
They will have returned home and begun demanding the recognition of their solemn legal vows by their own state government.
Perhaps most important of all, people will not start marrying their pets, heterosexuals will not all suddenly divorce, churches will not be “thrown to the lawyers”, and the sky will stay just where it is.
As much as it will seal Tasmania’s maturation as an inclusive society, state marriage equality will break the seal on the national debate.
First published in Fiarfax National Times, with full links here
Rodney Croome has been at the forefront of the struggle for gay equality in Tasmania and is campaign director of Australian Marriage Equality. In 2003 he was a Member of the Order of Australia for his gay right advocacy.
• What Monty reckons, Crikey here
• Crikey Tuesday: Tassie Parliament in deadlock on gay marriage
Crikey journalists Amber Jamieson and Cathy Alexander write:
The future of Tasmania’s proposed laws to allow same-s-x marriage rests on a knife edge.
The laws appear set to pass the lower house, but the 15-member Legislative Council, dominated by independents, is a different story. With eight votes needed to pass the bill, a Crikey analysis has found six MLCs are inclined to vote yes, six are inclined to vote no, and two are undecided. (The 15th vote is that of the president, Sue Smith MLC, who does not vote in the first instance, would only do so in the event of a tie, and is likely to vote no.)
That means for the bill to pass, Lara Giddings’ Labor government must persuade the two “uncertain” MLCs — Michael Gaffney and Adriana Taylor — to fall its way.
Whether same-s-x marriage is legalised in an Australian state now rests on the shoulders of this eclectic group of independents, plus one ALP and one Liberal member. Crikey profiles the 15 MLCs and examines their current — and past — opinions on gay marriage. In alphabetical order …
Rosemary Armitage: likely to vote NO
Elected as an independent for Launceston in 2011.
“While I accept there are many longstanding, successful same-s-x relationships, and I can understand that many same-s-x couples wish the same recognition as a man and woman, I am old-fashioned in my views and have not been convinced that a marriage should be anything else but a union between a man and a woman,” Armitage told the Australian Christian Lobby, when responding to their electoral questions last year.
Ivan Dean: likely to vote NO
Since 2003 Dean has served as the independent member for Windermere. He’s a former mayor of Launceston and a former liaison officer between the GLBT communities and Tasmania Police on the North West coast. Seen as a political tough nut, but with a strong independent streak which can see him go his own way.
“My position currently is that I will take convincing to support the legislation,” Dean told Crikey. “I think it will create a legal monster and be challenged. I certaintly have a strong view that it’s a national matter and should be determined nationally.”
Back in 2003 during debate over the Relationships Bill and the Relationships (Consequential Amendments) Bill Dean told the Legislative Council that the bill “seeks to have same-s-x relationships recognised in exactly the same way as marriage. They are not the same and can never have that same equality, in my view.”
Today Dean said his views have essentially remained the same since then. “Things change over time, but it [same-s-x marriage] can never be the same can it, as male-female. There are very clear differences,” he said. “But time moves on. People are more accepting of change now.”
Craig Farrell: will vote YES
The lone ALP representive in Tasmania’s upper house, Farrell will support the same-s-x marriage legislation put up by his party in the lower house. “Like all things, this has been through the parliamentary Labor party and I support the general consensus that was made by members,” Farrell told Crikey.
The ALP did allow a conscience vote on this issue. “I’ve seen some very strong relationships in same-s-x relationships and if they choose or wish to be married then I think they should have the right,” said Farrell. He notes that he was married in a church over 30 years ago, but thinks marriage is a legal not a religious issue.
Vanessa Goodwin: likely to vote NO
The only Liberal representative in the Leg Co, Goodwin is likely to vote against the same-s-x marriage bill put up by her opponents, although she is known for being progressive on other gay and discrimination issues.
Kerry Finch: undecided, but likely to vote YES
Finch, the MLC for Rosevears since 2003 and a former ABC journalist, is known for pushing socially progressive legislation.
“I’ve got an open mind about it,” Finch told Crikey, who said he was staying open-minded in order to canvass as much opinion about this issue as possible. “I am very keen to see discrimination eliminated from society. But we need to let the debate unfold to see how people feel about this, whether they do put this in to the discrimination category.”
Regardless of the outcome, “it’s exciting times in respect of debate on the floor of parliament, whether it gets up or not. These are things we need to talk about, because the more we talk about them, the more people think about them … I wouldn’t write success for this off.”
During a debate on the Relationships Bill in 2009, Finch spoke in favour of same-s-x relationships. “Even though it [a same-s-x relationship] may be a long-standing, stable relationship; probably unlike many marriages between men and women,” he said.
Ruth Forrest: likely to vote YES
Forrest is a popular midwife from the North-West Coast who is seen to be quite progressive on social issues. “When two people love each other to the point where they want to spend their lives together and make that commitment to each other, which carries all the rights and responsibilities of such a union, then it needs to be the same,” she told The Burnie Advocate this week.
But Forrest is concerned about the legal implications of same-s-x marriage in Tasmania. “I think it’s important we understand what the risks are,” she said in an interview with ABC Radio. “I think it would be quite devastating for some same-s-x couples if they decided to go through the process and then have the situation challenged.”
Back in 2010 she raised the issue of same-s-x marriage during a debate on the Relationships Bill and noted that “the same-s-x marriage debate will need to be had at a Commonwealth level” because of legal implications.
Michael Gaffney: UNDECIDED
Gaffney, a well-regarded ex-mayor based in the North-West town of Latrobe, is seen to be relatively socially progressive, and generally aligned more to the Labor point of view than the Liberal. Gaffney went to ground since the same-s-x marriage reform was proposed, but issued a media release today which gave little away. Gaffney said he would formulate an informed position based on his constituents’ views, and his evaluation of the Bill’s efficacy, as he highlighted several issues:
“I am taking advice on several clauses in the Commonwealth Marriage Act 1961. There are several potential inconsistencies which should be investigated and evaluated to determine if the Bill, in its current form, is likely to be an effective, functioning Act, should it be passed.”‘
Read the full story, Crikey here
&bu ll;TASMANIAN GAY AND LESBIAN RIGHTS GROUP
Media Release
Tuesday August 7th 2012
HODGMAN BOWS TO PREJUDICE BY DENYING GAY MARRIAGE FREE VOTE
LIBERALS’ ECONOMIC CREDIBILITY TARNISHED AS THEY SAY “NO” TO $100 MILLION WORTH OF TASMANIAN JOBS
Tasmanian gay rights advocates have accused the Tasmanian Liberals of putting prejudice before the social and economic well-being of the majority of ordinary Tasmanians.
Tasmanian Gay and Lesbian Rights Group spokesperson, Rodney Croome, said,
“By refusing a conscience vote on marriage equality, Will Hodgman has put anti-gay prejudice ahead of equality for same-sex couples and their families, as well as the $100 million worth of new jobs that will flow from same-sex couples coming to Tasmania to marry.”
“The Liberals can’t expect to be taken seriously as sound economic managers when they oppose, en bloc, a reform that will cost nothing, do no harm to anyone and generate hundreds of jobs for Tasmanians.”
Mr Croome said the chances of marriage equality passing the Upper House remain “unpredictable and uncertain”.
For a fact sheet on the economic impact of marriage equality on Tasmania go to:
http://tasunited.org/wp-content/uploads/econ2.pdf
HODGMAN TO GO DOWN IN HISTORY DEFENDING DISCRIMINATION
Nick McKim MP
Greens Leader
Tuesday, 7 August 2012
The Tasmanian Greens said that the Opposition Leader Will Hodgman had today chosen to go down in history as one of the last political leaders to support legally-entrenched homophobic discrimination.
Greens Leader Nick McKim said that it wasn’t too late for Mr Hodgman to change his mind and grant Liberal MPs a conscience vote on marriage equality, when legislation comes before State Parliament.
“Whether it happens at the state or federal level, marriage equality will be a landmark social change for Tasmania,” Mr McKim said.
“Will Hodgman has chosen to go down in history on the side of discrimination, and that is a terrible shame.”
“It will no doubt come as a terrible shock to the majority of conservative voters, who in fact support equal rights same sex couples, that Mr Hodgman feels this way.”
“It was the minority Rundle Liberal government that voted to overturn laws that made homosexuality illegal in Tasmania, and many Liberals supporters are proud of that legacy.”
“By defending legal discrimination against same sex couples, Mr Hodgman is also sending a worrying signal to the community about the place of homosexuals in our society.”
“How can Mr Hodgman now argue for ending discrimination in the community, if he’s not prepared to set an example by tearing down discrimination in our legal system?”
“This is the lowest form of dog whistle politics, and it’s clearly being driven by the ruthless right wing Liberal Party faction led by Eric Abetz.”
Tasmanian Labor breaks election commitment but Liberals keep theirs in gay marriage debate
The Australian Christian Lobby has applauded the Tasmanian Liberals for keeping its election commitment to keep marriage between a man and a woman in it’s commitment to vote against potential state legislation on gay marriage.
ACL’s Tasmania Director Mark Brown said in the lead up to the 2010 election the ACL held an event on the 15th of February at the University of Tasmania for Labor’s then Premier David Bartlett and Opposition Leader Will Hodgman to address the Christian constituency.
“At that event both leaders committed their parties to uphold marriage as between a man and a woman and both parties acknowledge it was a federal issue and not a state issue,” he said.
“When Premier Lara Giddings succeeded David Bartlett she was committed to honouring the party’s election commitments as articulated by David Bartlett when he said at the event ‘The Commonwealth Act only permits marriage between a man and a woman and we would not be lobbying or moving to change that’,” he said.
“Opposition Leader Will Hodgman also gave a commitment that the Liberal Party would support the institution of marriage when he said “We believe fundamentally that the institution of marriage should be reserved for a union between a man and a woman. Clear, unequivocal stated position with no plans at all to dilute it or interfere with that it in anyway’,” he said.
Mr Brown said it was entirely appropriate for the Liberals to vote as a block to protect marriage because that is what they, along with Labor, pledged to do at the 2010 election.
“It is important that politicians are held to account for their election commitments. There needs to be a return to integrity in politics,” he said.
“The Greens obviously have no regard for the integrity because they continually urge the major parties to break faith with the electorate,” Mr Brown said.
“It is a shame that Tasmanian Labor is being led by its power-sharing agreement with the Greens to break its election promise.”
• ACL: Tasmanian Labor breaks election commitment but Liberals keep theirs in gay marriage debate
Note: ACL has video footage of Mr Bartlett and Mr Hodgman’s pledges and is in the process of transferring this to an online format. Below is a transcript of excerpts relating to marriage.
Tasmanian Make it Count
15th February 2010
Marriage comments
Rev Peter Thorneycroft (Presbyterian Church Tasmania):
50.53 – 52.05 My question is in regards to marriage. Marriage is defined in the Marriage Act as the union between a man and a woman to the exclusion of all others voluntary entered into life. Whatever our human shortfalls and whether it’s civil or religious ceremony – the object of lifelong commitment between a couple explicit in marriage is still the best guarantee of providing a healthy and stable environment for children and the natural heterosexual bond as it is called. Government policy needs to strengthen and uphold this model – not to dilute or weaken it. Would your Party uphold marriage as defined in the Marriage Act by rejecting any legislative attempts to mimic marriage by same-sex couples as has occurred in the ACT? What is your party’s policies position on official relationships that seek to be de facto marriage?
David Bartlett: (52.08 -53.07) The Commonwealth Marriage Act is intended to “cover the field” in relation of marriage in Australia. It is a Commonwealth Act. The Commonwealth Act only permits marriage between a man and a woman and we would not be lobbying or moving to change that. The facts of the matter are though – and I’ll be clear about this – is a Labor government has introduced significant relationships legislation in Tasmania – to protect those people’s in whatever the relationships – it might be a carer’s relationship or it might be a same-sex relationship – to protect those people and to give them access to the sorts of benefits and rights in terms of financial or otherwise that heterosexual couples automatically have rights to. However, we do believe and we are committed to the Commonwealth Marriage Act as it stands.
Will Hodgman: (53.12 – 54:26) Notwithstanding the fact that it’s essentially a Commonwealth matter our position is very very clear. We believe fundamentally that the institution of marriage should be reserved for a union between a man and a woman. Clear, unequivocal stated position with no plans at all to dilute it or interfere with that it in anyway. We believe fundamentally that institution alongside that of the family is fundamental, cornerstone of our society. We would certainly not support and change or nor propose one or nor indeed introduce any legislation similar to that introduced in the Australian Capital Territory. I know what David said about the significant relationships legislation and that did deal with important deficiencies in the current administrative legislative arrangements that concern people in significant relationships. It is a good framework and I think provides adequately for people in those relationships – it’s something I supported. We would not in any way move to diminish the institution of marriage but instead seek to promote it.
Nick Overton (then ACL’s Tasmanian Director):
Can I ask both of you for clarification on one matter to do with this issue. The heart of the question I guess is what’s happened in the ACT recently where they’ve essentially legislated for de facto marriage – for want of a better term – where they have civil unions that are allowed to have ceremonies which have legal enforcement – the same as marriage does. It is really marriage in everything but name. So I guess the heart of the question is would you – what is your parties position on that as opposed to – we understand what you have said and appreciate what you’ve said about the Commonwealth Marriage – clearly in the ACT they have now marriage – for want of a better word – in all but name. What is your party’s policy position on de facto marriage?
David Bartlett: (55.18 -55.29) I’ll just say this…we won’t be seeking in the next term of government to significantly or materially change significant relationships act that we currently have in Tasmania.
Will Hodgman: And similarly Nick, and I did say, we would not propose what’s happened in the Australian Capital Territory and wouldn’t move in that direction at all.