Coroner & Legal
The legal ambush that sank marriage equality
Former Supreme Court chief justice and former state governor, the Hon William Cox AC, RFD, ED, QC.
Upper House members whose votes were crucial in defeating the Same-Sex marriage Bill said they voted against the Bill because of constitutional concerns, in particular that the Bill would probably be defeated in the High Court at great cost to the state.
But what information did they rely on to arrive at this conclusion?
I’ve written previously about how serial anti-gay campaigner Guy Barnett lobbied Upper House members against the Bill because “marriage is a federal issue”, even though he had previously suggested it is possible for states to enact same-sex marriage laws:
http://oldtt.pixelkey.biz/index.php/article/guy-barnetts-surprise-about-face-on-same-sex-marriage
I’ve also written about how the Australian Family Association’s go-to lawyer, Neville Rochow, contradicted himself – declaring to a Senate inquiry in May that state same-sex marriage laws are possible, but declaring to the Legislative Council in September that they are not (Rochow’s subsequent defense was that in May he had been talking in general terms, not about a specific state bill. Although he failed to identify exactly what about the Tasmanian Bill meant it defied the general principle he previously outlined.):
http://oldtt.pixelkey.biz/index.php/article/rodney2
More recently, Upper House members were given further “advice” from Rochow which included a ridiculously inflated costing of an unsuccessful High Court challenge.
Rochow postulated a maximum cost of $1.25 million, which included a hypothetical case taken by a religious celebrant who refused to celebrate a same-sex marriage, as well as the costs of all the interveners in such a case.
The problem is the celebrants accredited under the Tasmanian Bill choose to opt in, so no-one would be expected to perform a marriage against their will. Also, defendants don’t pay interveners’ costs in the High Court.
In reality the highest cost a High Court loss would incur is several tens of thousands of dollars.
Neville Rochow’s “advice” wasn’t worth the paper it was printed on.
But what seemed to carry the most weight with Upper House members was the most shallow and prejudiced “legal advice” of all.
Only two working days before debate on the Same-Sex Marriage Bill was due to begin, MLCs were hit by a “legal opinion” from former Supreme Court chief justice and former state governor, the Hon William Cox AC, RFD, ED, QC.
Cox declared, “on the face of it, the present Bill is clearly inconsistent with the Federal Marriage Act.”
He then went on to label as “specious” the view of Prof George Williams and others that the Tasmanian Bill is constitutionally valid.
That’s a bold attack on the man who wrote the text book on the Constitution, and you’d expect some reasoning to back it up.
But there was none.
Cox failed to provide any legal argumentation for his attack.
Instead, he moved straight on to decry the rather obvious fact that Tasmanian same-sex marriages won’t be recognised in other states (at least not yet).
As if that wasn’t bad enough, Cox showed his ignorance of the law by declaring that same-sex marriage will lead to same-sex surrogacy and adoption.
Same-sex surrogacy was passed the week before the marriage debate, and same-sex step-parent adoption has been legal in Tasmania since 2003.
But worst of all was Cox’s obvious prejudice against same-sex relationships.
He declared there is a risk many children of same-sex parents will not be well adjusted and happy, and that there will be “a stolen generation” of children raised by same-sex couples.
He hypothesised that same-sex marriages will lead to polygamy and polyandry.
This wasn’t a carefully considered legal opinion from a knowledgeable legal expert.
It was a homophobic diatribe from an out-of-touch old man.
Ruth Forrest has tabled a motion for an inquiry into the legal and constitutional issues raised by the Same-Sex Marriage Bill.
Given what legal nonsense was peddled to Upper House members it makes good sense to have a proper inquiry where the merits of the arguments can be weighed up.
If Upper House members were sincere when they said they voted down the Bill on constitutional grounds they will support the motion.
If they vote the motion down too, it will because they were simply using the constitutional issues to hide their prejudices, and because they don’t want the public to know they were gullible enough to swallow a very large pile of bull dust.
– Rodney Croome
Judge for yourself whether William Cox’s advice on the Same-Sex Marriage Bill was unbiased and well-reasoned:
From: The Hon William Cox AC, RFD, ED, QC.
Davey St, Hobart 7000
Sept 2012
Dear Member of the Legislative Council
I write to express my concern at the prospect of the Same Sex Marriage Bill 2012 being passed by the Legislative Council.
Leaving aside moral issues about which a significant proportion of the community is concerned, and dealing only with the pragmatic, it is my view that the Bill raises other issues which argue strongly against its passage through Parliament.
First, there is the question of constitutionality. It is clear that the Commonwealth has primacy in respect of laws in relation to marriage and that any State law inconsistent with legislation enacted by the Commonwealth will be struck down by the High Court. On the face of it, the present Bill is clearly inconsistent with the Federal Marriage Act. In her Second Reading Speech the Premier acknowledges that constitutional law experts will have differing opinions and interpretations although she claims that they are agreed it is a grey area. With respect I see nothing grey about it at all. She is not prepared to disclose the Solicitor-General’s advice on the subject and relies only on the opinion of Professor George Williams who, she says, argues that there is no doubt that laws on marriage can be passed by the Commonwealth and the States and that this Bill is not inconsistent with the Commonwealth legislation. She does not condescend to cite his reasoning which appears to be that the Commonwealth legislation is confined to marriages between men and women, thereby leaving a gap concerning same sex marriages which a State Legislature can fill pending any later inconsistent Commonwealth legislation on the same subject. This is specious and I prefer Professor Anne Twomey’s view that a Tasmanian law permitting same sex marriage even if operative in Tasmania would be unlikely to be regarded as of legal effect for the purposes of Commonwealth law or the law of any other State. Any such legislation would create a mine field in respect of rights, and make Tasmania a legal laughing stock. The suggestion that a High Court challenge will not be expensive because the Solicitor-General who is already on the pay roll will be instructed to argue against it is disingenuous. The costs of an unsuccessful defence to such a challenge would be considerable and not confined to those incurred by the State of Tasmania but would cover the costs of the party challenging and those intervening. The Premier does not address the issue but just shrugs it off with the proposition that only time and the High Court will resolve it. True, but it is foolish to enact legislation which has a strong chance of being declared invalid.
The second area of concern is the precedent this sets for further erosion of the marriage status. Where will it end? If love between two homosexual partners justifies the status of marriage why not polygamy or polyandry if those in the relationship desire to dignify that love with the status of marriage?
Third is the issue of children being brought up in a same sex relationship with either two mothers and no father or two fathers and no mother. Passage of the Bill would be likely to foster the adoption or surrogate procreation of children by “married” homosexual couples. Lobbyists claim that children just need the love of their “parents” irrespective of whether the latter are of the same sex or not. No doubt some children will grow up well adjusted and happy but there is a risk that many will not and we will have a new “stolen generation” complaining, with justification, that they have been deprived of their right to parents of the opposite sex. There are plenty of aboriginal children brought up by well meaning and loving adoptive parents who still bear the scars of separation from their biological parents in what is to them an alien life style.
This is too important a decision to be made without extensive research into its possible consequences. History has upheld the concept of marriage being confined to a union between one man and one woman. It should not be altered without full research and demonstratively overwhelming support from the electorate to that end.
I urge you to vote against the Bill.
Yours sincerely,
William Cox.
For more on why marriage equality failed in Tasmania:
http://www.onlineopinion.com.au/view.asp?article=14184&page=0
• Simon de Little: Taken aback by Tony …
Many people have voiced objections to the argument for marriage equality being one of economics and tourism. I personally feel that this is just one of numerous logical and moral reasons we should have passed the Bill last week. It is not a reason in itself, as many people have tried to argue against.
Listening to the debate I was taken aback by Tony Mulder’s comments on the tourism angle. When it slipped by unnoticed I began to suspect that I’d misheard his statement, however here straight from Hansard is his logic, perhaps borrowed from a certain Senator, currently MIA –
“I would think that, yes, there could be a little bit of a boost, but we are certainly not going to trumpet that as a potential reason for our behaviour, because I can tell you now, having been to Thailand that if you really want to get a great injection, go and have a look at the child sex tourism that is going on in Thailand. Are you suggesting that we could give Tasmania a real economic boost by legalising all that and having the jets from Europe fly down here and take advantage of children? I would not have thought so. But if you are talking about a real economic boost, that would be one.”
To his credit he went on to vote in favour, but heavens to Betsy! What a bizarre and offensive comparison to make!
http://www.parliament.tas.gov.au/ParliamentSearch/isysquery/eb581a0d-7b87-42af-978c-678dab87244a/3/doc/
• AUSTRALIAN MARRIAGE EQUALITY
Media Release
Thursday October 4th 2012
ANDREWS CONDEMNED FOR SPREADING MYTHS AND MISINFORMATION ABOUT MARRIAGE EQUALITY
Marriage equality advocates have dismissed claims by the Opposition spokesperson on families, Kevin Andrews, that marriage equality will lead to multiple-partner marriages and is a threat to religious freedoms.
Australian Marriage Equality national spokesperson, Rodney Croome, said,
“If there was a link between same-sex marriage and polygamy, gay people would be marrying in Saudi Arabia and Sudan, but instead they’re executed.”
“If marriage equality was a threat to religious freedoms, courts from Canada to Spain would be clogged with clergy, but not one priest has been prosecuted for holding to their beliefs about marriage.”
“The reality is that marriage equality strengthens families, which is something Mr Andrews, as a spokesperson on families, should support.”
“Instead he is spreading the kind of myths and misinformation that harms the families of gay, lesbian, bisexual and transgender people.”
Mr Andrews made the claims in a new book entitled, ” ‘Maybe ‘I Do’: Modern Marriage and Pursuit of Happiness”, which he claims to have been researching for twenty years.
For a report on Mr Andrews’ claims go to: http://www.theage.com.au/opinion/political-news/legalising-gay-unions-is-prelude-to-group-marriage-20121003-26zr6.html#ixzz28FT6SnTs
• What The Examiner’s Barry Prismall reckons: Bad timing by McKim on sex-ed
First published: 2012-10-04 06:00 AM
• AUSTRALIAN MARRIAGE EQUALITY
Media Release
Saturday October 6th 2012
ANDREWS’ PREDICTION THAT MARRIAGE DEBATE IS OVER DISMISSED AS “WISHFUL THINKING”
Marriage equality advocates say there is more support for reform than ever before and the federal parliament will move to recognise state same-sex marriages once they occur.
The declaration comes in response to a statement from Opposition families spokesperson, Kevin Andrews MP, that the battle to “protect marriage” at the federal level is “conclusively won”.
Australian Marriage Equality national convener, Rodney Croome, said,
“Within the next six months same-sex marriages will occur under state or territory laws somewhere in Australia, and when they do the debate will shift forever.”
“When same-sex couples start marrying and the dire predictions of people like Mr Andrews don’t come true, other states and the Commonwealth will be under immense pressure to embark on the same reform.”
“With popular and parliamentary support for marriage equality increasing all the time, Mr Andrews’ prediction is just wishful thinking.”
“Mr Andrews is mistaking a lull in the storm for the end of the storm.”
Mr Andrews was speaking to the Australian Christian Lobby conference in Canberra.
For a report of Mr Andrews’ comment go to:
http://www.skynews.com.au/politics/article.aspx?id=802866