SSM: ‘The Bill is doomed’. Crikey runs the numbers. Croome: We back the backers

There is at present a bill before the Tasmanian Parliament, the “The Same-Sex Marriage Bill 2012”. (the Bill) It is due to be be considered by the Legislative Council tomorrow.

Some think that the Bill before the Tasmanian Parliament would, if passed, result in a potentially invalid piece of legislation. Invalid because such legislation would be inconsistent with the definition of ‘Marriage’ in the Commonwealth Marriage Act 1961 (a union between a man and a woman etc) and similarly because of what legal authorities have had to say about the meaning/application of the use of the term ‘marriage’ in the Australian Constitution.

Section 109 of the Constitution, provides that where a State law is inconsistent with Commonwealth law, the state law is over-ridden. Section 51(xxi) gives the Commonwealth the power to make laws with respect to marriage. It is not an exclusive power – the states can also make laws with regard to marriage, but under s109, states have to ensure the law conforms with anything the Commonwealth has legislated on marriage.

Therefore it is thought by some that the Tasmanian ‘Same Sex Marriage’ Bill, if it became law, would be invalid because of its inconsistency with the Commonwealth legislation which defines the meaning of ‘Marriage’.

The Marriage Act 1961 (Commonwealth):
“marriage means the union of a man and a woman to the exclusion
of all others, voluntarily entered into for life.”

The Marriage Amendment Bill 2012 (Commonwealth), which has been defeated, sought to redefine “marriage” thus: “marriage means the union of two people, regardless of their sex, to the exclusion of all others, voluntarily entered into for life.”

The Same Sex Marriage Bill 2012 (Tasmania) has the following interpretation: “same-sex marriage means the lawful union of two people of the same sex, to the exclusion of all others, voluntarily entered into for life;”

Had the attempt to change the definition of marriage in the Commonwealth Marriage Act 1961 succeeded, the present Tasmanian Bill would have had a better chance of withstanding objections relating to Commonwealth/Constitutional considerations.

How does the Tasmanian Bill define marriage? Well actually, it doesn’t. Run your finger down the list in Section 3 (the Interpretation or ‘dictionary’ section of all our Acts of Parliament) and you won’t find marriage defined. You will however find under ‘s’: same-sex marriage.

“same-sex marriage means the lawful union of two people of the same sex, to the exclusion of all others, voluntarily entered into for life;”

From this, I reason that the Bill attempts to draw a distinction between marriage and same-sex marriage. That is, a distinction between marriage as in the Commonwealth legislation, and same-sex marriage as in the Tasmanian Bill. Between heterosexual union and homosexual union. The advantage of such a distinction, would be that it might reduce the extent to which our would-be state law might be inconsistent with Commonwealth marriage law.

The Tasmanian Bill’s non-definitional approach with regard to marriage reform is taken presumably to avoid potential legal invalidity due to inconsistency with the commonwealth/constitutional definition. The Bill tries very hard to avoid using the term marriage as a stand-alone term. You’ll find it there in a few headings, but I suspect that headings might not carry the same weight of meaning as might be derived from the word, were it to occur regularly throughout the proposed legislation. Yet, closer scrutiny does find that stand-alone ‘marriage’ does appear within the Bill. For example, under the Bill before Parliament, we do find that those who would undertake a same-sex marriage will be issued with a Certificate, the section on certificates uses the heading Marriage certificates and not Same-sex Marriage certificates. However, in spite of same-sex marriage in preference to marriage being used in 99% of instances throughout the Bill, marriage does manage to appear in its own right several times in the Bill and it is clear in most of those cases that what are being referred to are same-sex marriages. (for example in Sections 62, 66 and in Schedule 1 of the Bill) In other words, though the Bill largely attempts to avoid using the word ‘marriage’ on its own, it does not altogether succeed in doing so. One is left with the feeling that this is indeed a Marriage Act, and that it is specious to attempt to maintain the Same-sex Marriage distinction.

What to make of the situation? On the face of it, the Same-sex Marriage Bill is flawed. For all intents and purposes, it is a Bill to introduce a new Marriage Law into our state. It tries to dodge the issue by calling it a ‘Same-sex Marriage’ Law, but in reality, it is a Marriage Law that is being proposed. And that puts it fair and square against the over-riding Commonwealth legislation. Our Constitution provides that in such a situation, the Commonwealth legislation will prevail.

The SAME-SEX MARRIAGE BILL 2012 carries the description of itself as “A BILL FOR An Act to provide for marriage equality by allowing for marriage between adults of the same sex”

This Bill is doomed.

• Cathy Alexander, Amber Jamieson, Frances Mao, Crikey: Cold feet: Tasmania’s gay marriage bill in trouble

Tasmania’s Upper House politicians seem to be gearing up to say “I don’t” to gay marriage when they vote on the issue, probably this week. Crikey runs the numbers: here

• ADVOCATES VOW TO SUPPORT UPPER HOUSE ELECTION CANDIDATES WHO SUPPORT MARRIAGE EQUALITY

National marriage equality lobby group, Australian Marriage Equality, says it will actively campaign for pro-equality candidates in next year’s Upper House elections.

Spokesperson, Rodney Croome, said,

“In next year’s elections we will throw our weight behind candidates who support marriage equality and hold candidates who are against it accountable.”

“AME has run successful electoral campaigns in other states, including the campaign which contributed to the election of Adam Bandt in the seat of Melbourne.”

“Our campaigns have involved electorate-wide leafleting, forums and advertising, and we will do the same here.”

Three Upper House seats are up for election in May next year – Nelson which is currently represented by Jim Wilkinson, Pembroke represented by Vanessa Goodwin and Montgomery represented by Sue Smith.

“These three Upper House members have a clear choice – if you support a reform the majority of Tasmanians want, you will have our support too,” said Mr Croome.