Caught out

Cory Bernardi: Michelle Grattan, The Age: Bestiality claims unlikely victim

A lawyer who has advised the Tasmanian Upper House that state same-sex marriage legislation is not constitutional said exactly the opposite to a Senate inquiry earlier this year.

One of the key questions facing Upper House members as they consider the State Government’s Same-Sex Marriage Bill is whether that Bill is constitutionally valid and will stand up to a challenge in the High Court.

The man who wrote the textbook on the Constitution, Professor George Williams, has provided detailed advice explaining that it probably will.

But Legislative Councillors have also received advice from other quarters. For example, anti-equality group, Family Voice, asked Neville Rochow SC to write an opinion which unsurprisingly declares the law unconstitutional.

I understand some Councillors are taking Mr Rochow’s advice quite seriously, giving it even greater weight than George Williams’ advice. But does it warrant this high standing?

Not if we look at what Neville Rochow has said on this issue in the past.

In his recent advice to MLCs, Rochow left little room for doubt.

“…any State same sex marriage legislation like the Bill, would be beyond the Legislative power and competence of that State….The Tasmanian Bill, if passed is likely to be unconstitutional and invalid.”

However, during a hearing of the Senate Legal and Constitutional Affairs Committee marriage equality inquiry on May 3rd this year, Mr Rochow said exactly the opposite.

Rochow’s aim then was to convince the Senate inquiry that the Commonwealth does not have the power to legislate for same-sex marriages.

In a submission to the inquiry Rochow authored on behalf of Lawyers for the Preservation of the Definition of Marriage, he declared,

“The conclusion, from proper constitutional interpretation and authority is therefore that at the heart of the (federal constitutional) marriage power are the relationships between husband, wife and children of the marriage. There is no power in the Commonwealth Parliament to alter the essence of those relationships. Therefore, the marriage power does not enable same-sex relationships to be regarded as marriages.”

Can you see the problem yet? If, as Rochow says, the Commonwealth does not have the power to make laws for same-sex marriages then that power falls entirely to the states, no inconsistency is possible between the Federal Marriage Act and the Tasmanian Same-Sex Marriage Bill, and the latter is unquestionably constitutionally valid.

Not surprisingly this was exactly the conclusion Rochow himself conceded under questioning during the Senate hearing.

Here’s the exchange between Mr Rochow and committee member Senator Louise Pratt.

Mr Rochow: With respect, there is nothing to stop the state passing a bill that says, ‘This is a bill regarding same-sex marriage,’ but the definition of ‘marriage’ has now been defined constitutionally, and to try to redefine it at the state level does raise the section 109 point.

Mr Rochow: Yes, for something called ‘same-sex marriage’ or ‘gay marriage’ or ‘state based marriage’, there would be no problem.

When faced with national marriage equality legislation Mr Rochow said that reform is a state issue. When faced with state legislation, he said it’s not possible at a state level either. It seems Mr Rochow says whatever he needs to say to oppose same-sex marriage, even if it means contradicting himself.

Readers of Tasmanian Times will recall former Senator Guy Barnett has contradicted himself in a similar way: (TT here)

In a letter to the editor in 2006 he admitted the federal Marriage Act does not “cover the field” of all marriages, permitting the states to legislate for same-sex marriages. Now he says marriage is a federal issue and there’s no room for state laws.

But Barnett’s inconsistency is not as important as Rochow’s. Rochow puts himself forward as a serious, disinterested legal expert, not a partisan point-scorer. So, does Rochow deserve to be treated as a disinterested expert?

The fact that Rochow is so closely aligned to Family Voice will be a concern to some people.

It will be a concern to others that he seems so sure of himself on an issue where all other serious lawyers agree there is no clear answer.

But what should concern everyone is that Rochow was either wrong when he gave evidence to the Senate inquiry or he is wrong now. Either way, his views are not credible.

Refs:

For previous Tas Times article on Guy Barnett go to:
http://oldtt.pixelkey.biz/index.php/article/guy-barnetts-surprise-about-face-on-same-sex-marriage

For other commentary by Rodney Croome on Tasmania’s move to marriage equality go to:
http://gaynewsnetwork.com.au/feature/ft-tasmania/8585-one-step-closer.html
http://gaynewsnetwork.com.au/viewpoint/viewpoint/8690-tasmania-is-not-creepy.html

To see the submission from Lawyers for the Preservation of the Definition of Marriage, go to:
http://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=legcon_ctte/marriage_equality_2012/submissions.htm

To verify the above Senate hearing quotes, go to:
http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;db=COMMITTEES;id=committees%2Fcommsen%2F457a861a-2648-4841-ba2b-0caf90331e3a%2F0004;query=Id%3A%22committees%2Fcommsen%2F457a861a-2648-4841-ba2b-0caf90331e3a%2F0000%22

• FEDERAL SAME-SEX MARRIAGE DEBATE CONFIRMS MARRIAGE IS A BEDROCK INSTITUTION WORTHY OF PROTECTION
– AND A MATTER FOR FEDERAL PARLIAMENT

Wednesday 19 September 2012

“The substantial victory in Federal Parliament today supporting marriage between a man and a woman confirms that marriage is a bedrock institution worthy of protection. It provides an umbrella under which children are nurtured and grow, said Guy Barnett today.

“Same-sex marriage denies children the right to both a mum and a dad.

“Today’s decision vindicates the amendments made by the Howard Government in 2004 to the Marriage Act 1961 confirming that marriage was between a man and a woman.

“The debate in the Federal Parliament also confirms that marriage is a matter for the Federal Parliament, not the State Parliament. Tasmania’s same-sex marriage legislation is clearly unconstitutional,” he concluded.

Guy Barnett, lawyer and consultant as a Tasmanian Senator was instrumental in the passing of the 2004 Howard Government amendments to the Marriage Act 1961.

• Benedict Bartl: Tasmania’s Community Legal Centres call for marriage vote based on love and not discrimination

Tasmania’s eight community legal centres today united in calling on Members of the Legislative Council to end discrimination and vote for marriage equality.The Tasmanian Association of Community Legal Centres’ (TACLC) Policy Officer, Benedict Bartl, today said:

Members of the Legislative Council have an opportunity to lead the rest of Australia by abolishing prejudice and discrimination against same-sex couples and voting for marriage laws that encourage inclusiveness, equality and love.

TACLC yesterday wrote to all Members of the Legislative Council calling on them to seize the opportunity of removing one of the last bastions of legislative discrimination on the grounds of sexual orientation.The letter highlighted the constitutional case for a Tasmanian Same-Sex Marriage Act and concluded by calling on Legislative Council members “to be a part of a historic moment in which Tasmania removed once and for all the shackles of its past to reveal a future based not on discrimination and prejudice, but on love”.

Mr Bartl concluded,

I encourage all Tasmanians who care about equality to get in contact with their local Member of the Legislative Council and let them know that same-sex relationships are just as strong, loving and committed as any heterosexual relationship and that there is a groundswell of community support calling for legislative change.

Below: A copy of the letter sent to Members of the Legislative Council:

TASMANIAN ASSOCIATION OF COMMUNITY LEGAL CENTRES
Animal Welfare Community Legal Centre • Environmental Defenders Office • Hobart Community Legal Service • Launceston Community Legal Centre • North West Community Legal Centre • Tenants’ Union • Women’s Legal Service • Worker Assist

19 September 2012

The Honourable Sue Smith
President of the Legislative Council
PO Box 179
Ulverstone TAS 7315

Dear Mrs Smith,
Re: Marriage Equality

The Tasmanian Same-Sex Marriage Bill 2012 is an opportunity to remove one of the last bastions of legislative discrimination on the grounds of sexual orientation. It is also a chance for Tasmania to lead the rest of Australia on an issue of inclusiveness and at the same time right a historical wrong, which saw Tasmania take so long to abolish the criminalisation of consensual sex between men.

On behalf of a future Tasmania in which discrimination is abolished, injustice removed and equality endorsed, we encourage you to support the Same Sex Marriage Bill.

The Tasmanian Association of Community Legal Centres (TACLC) is an incorporated network representing the eight community legal centres in Tasmania. Our member centres provide advice, representation and legal education services to thousands of Tasmanians every year. We also advocate for law reform on a range of public interest matters aimed at reducing discrimination, protecting and promoting human rights and improving the lives of Tasmanians.

TACLC strongly believes in marriage equality. The continued differentiation of same-sex and different-sex relationships is nothing more than discrimination. Excluding couples from marriage on the grounds of sexual orientation reinforces discrimination on the grounds of sexual orientation, sends a message to the community that the ability of same-sex couples to commit to one another does not meet the standards commonly associated with marriage, and excludes same-sex couples and their families from belonging to one of society’s most important institutions.

To reinforce our case for marriage equality we draw your attention to a position paper issued yesterday by the Australian Human Rights Commission in which it lays out why marriage equality matters from a human rights perspective (paper attached).

We have analysed the Commonwealth of Australia Constitution Act 1901, the Marriage Act 1961 (Cth) (the Commonwealth Act) and the proposed Same Sex Marriage Bill (Tas) (the Tasmanian Bill). We have also considered the legal opinions of Geoffrey Lindell, Dan Meagher, Neville Rochow, Michael Stokes and Professor George Williams, as well as a recent legal opinion provided by Associate Professor of Law at Melbourne University, Kris Walker, which backs the opinion of Professor Williams.

Having regard to all these documents, it is our considered view that the Tasmanian Bill is not inconsistent, for the purposes of section 109 of the Constitution, with the Commonwealth Act. In our view, whilst the Commonwealth Act covers the field of marriage between ‘a man and woman to the exclusion of all others’ it does not seek to cover the field of same-sex marriage in Tasmania or other States. Expressed in another way, if the Commonwealth Act had intended to cover the field of both different-sex and same-sex marriage at both a Commonwealth and State level the Act it would have been so amended.

Whilst some commentators have asserted that the concept of marriage is eternal and unchanging, the evidence suggests otherwise with an evolution over the years that has continually adapted to meet the community’s evolving values. For example, all Australian states and territories formerly provided that a married woman forfeited all her legal rights to her husband and was considered his property; whilst for many years marriage between Aborigines and whites was prohibited and marriages between Protestants and Catholics were frowned upon.

The High Court, if required, would need to consider whether the term ‘marriage’ for the purposes of the Constitution should be interpreted as meaning what it meant in 1901 or whether the term should be interpreted in a modern context, in light of the community’s evolving values. Whilst there is no High Court authority directly on point, Justice McHugh a former High Court judge, noted in the case of Re Wakim that ‘arguably “marriage” now means, or in the near future may mean, a voluntary union for life between two people to the exclusion of others’. The Full Court of the Family Court also observed that:

It seems to be inconsistent with the approach of the High Court to the interpretation of other heads of Commonwealth power to place marriage in a special category, frozen in time to 1901. We therefore approach the matter on the basis that it is within the power of Parliament to regulate marriages within Australia that are outside the monogamistic Christian tradition.

As it stands, it is simply not known what the High Court would find if required to consider the validity of a Tasmanian Same-Sex Marriage Act. It is also uncertain if there would be a High Court challenge and who could take it. However, what is not in dispute is that as a member of the Legislative Council you have the opportunity to stamp out legally-entrenched discrimination against same-sex couples and to be a part of an historic moment in which Tasmania removed once and for all the shackles of its past to reveal a future based not on discrimination and prejudice, but on love.

We urge you to support this Bill.

Please do not hesitate to contact us if you have any queries or would like to discuss our submission further.

Yours Faithfully,

Benedict Bartl
Policy Officer
Tasmanian Association of Community Legal Centres

Refs:
Re Wakim (1999) 198 CLR 511, 553.
Attorney-General (Cth) v Kevin (2003) Fam LR 1, 19.

Kris Walker Opinion, AHRC position paper:
http://tglrg.org/more/116_0_1_0_M3/

• TASMANIAN GAY AND LESBIAN RIGHTS GROUP

Tasmanian marriage equality advocates say they are right behind the Government’s same-sex marriage bill despite criticism it does not provide full equality.

Tasmanian Gay and Lesbian Rights Group spokesperson, Rodney Croome, said.

“Same-sex couples want the option to stand before their family and friends and officially, legally marry, which is exactly what this Bill provides.”

“It’s true the Bill only allows for marriages between same-sex partners, but that is all a state is constitutionally able to do, and we are fine with that.”

“To say this Bill is ‘second-best’ because it’s limited to same-sex couples is like saying the federal Marriage Act is ‘second-best’ because it’s limited to opposite-sex couples.”

“In both pieces of legislation, marriage is defined as a lifelong, exclusive, two-person union and that’s what matters.”

Mr Croome’s comments come in the wake of concerns from Upper House member and marriage equality supporter, Jim Wilkinson, that the Bill does not provide equality because it only allows for marriage for same-sex couples.

Mr Croome urged Upper House members to keep an open mind on the issue until the vote, which is expected next week.

• Peter Whish-Wilson: Tasmania Well Positioned to Benefit From Same-Sex Tourism

Tasmanian Greens Senator and tourism spokesperson Peter Whish-Wilson has called on his home state to capitalise on the opportunities from becoming the first jurisdiction in the country to legalise same-sex marriage.

“It’s not just about being socially progressive, something Tasmania has a proud history on in this area, but I urge Tasmanians to look at the economic benefits as well.

“Tourism employs nearly 15 per cent of the Tasmanian workforce and is a major contributor to gross state product.

“However, like other areas of the economy it’s labouring under the weight of a high dollar and a fall off in tourism numbers.

“Recent reports examining the economic stimulus from passing same-sex marriage bills in areas such as the state of Massachusetts indicate the potential stimulus to our economy would be around $96m across a five-year period, creating potentially hundreds of new jobs.

“Our economy is already geared toward supporting tourism, so this isn’t something foreign, rather tapping into a significant new market.

“Tasmania isn’t the only state looking at this, South Australia is also considering similar legislation for its economic benefits.

“While I welcome any state going down this road, if Tasmania is to reap the maximum economic gain we need to be first past the post.

“I implore the members of Tasmania’s Legislative Council to show leadership and seize this opportunity for both our economy and to end this unacceptable form of legalised discrimination.”

• AUSTRALIAN MARRIAGE EQUALITY

In the wake of today’s vote against marriage equality in the Senate, marriage equality advocates say gay Australians and their families will feel betrayed, but they remain buoyant about the future of the issue.

The Senate has voted against marriage equality 41 to 26, following yesterday’s vote by the House of Representatives 98 to 42.

Australian Marriage Equality National Convener, Rodney Croome, said,

“Many same-sex couples and our families will feel despondent, angry and betrayed that federal parliament has said our relationships are not worthy of equal recognition and respect.”

“But I take heart from the fact that the last time the Senate voted on marriage equality in 2009 only six Senators voted in favour and today that number has increased four-fold.”

“If the Coalition had allowed a conscience vote the Senate outcome would have much closer and we thank Queensland Coalition Senator Sue Boyce for blazing a trail for other Coalition members by speaking in favour of reform.”

“It is a victory for the grassroots supporters marriage equality that we have come this far, and we now need our political supporters to join forces and work together to get this through parliament.”

“With the majority of Australians behind marriage equality I am confident momentum for reform will continue to grow as attention now shifts to the states.”

Next week the Tasmanian Upper House will vote on a State Government Same-Sex Marriage Bill, while the NSW Premier, Barry O’Farrell, has granted the NSW Liberal Government a conscience vote on the issue.

“Opponents of marriage equality in federal parliament may think they have knocked the issue on the head, but all they have really done is given the states a mandate to act, and spurred on marriage equality supporters to work even harder to achieve a reform that the majority of Australians want.”

Mr Croome rejected out of hand a proposal by North Queensland MP, Warren Entsch, for a national civil scheme.

“Civil unions entrench discrimination rather than removing it, are a step away from marriage equality rather than a step toward it, and are a sop to homophobia rather than a solution to it.”

“We acknowledge Mr Entsch’s heart is in the right place but we reject his proposal out of hand.”

• Rainbow Labor Tasmania Welcomes Historic Vote

Rainbow Labor Tasmania has today acknowledged the historic vote that has been held in both the House of Representatives yesterday and the Senate today.

Rainbow Labor Tasmania Convenor Robbie Moore said “While on this occasion the votes did not get the required numbers we believe this is a huge step forward to ultimately delivering marriage equality.”

“We are extremely disappointed that Tony Abbott refused to grant Liberal Party MPs and Senators a conscience vote on same-sex marriage.”

Mr Moore said “This was a serious error of judgement by Mr Abbott and that he should instead look at his colleagues such as Liberal NSW Premier Barry O’Farrell who is allowing a conscience vote.”

Rainbow Labor Tasmania is now focused on next week’s Legislative Council vote on same sex marriage that could see Tasmania become the first Australian State to deliver on same sex marriage.

Mr Moore said that “Rainbow Labor Tasmania was buoyed by the strong support of Tasmanian Federal Parliamentarians in the House of Representatives and the Senate”

Mr Moore said “It is fantastic that the majority of Tasmanian Federal Parliamentarians support marriage equality and that this places us in the best possible position for the vote that will occur in the Tasmanian Parliament next week”