Many states are now considering passing marriage equality laws, will it happen this year?
2012 was a momentous year for marriage equality in Australia. Labor's Stephen Jones MP introduced legislation in the House of Representatives to achieve marriage equality, while in the Senate, the same Bill was co-sponsored by Labor's Trish Crossin, Carol Brown, Louise Pratt and Gavin Marshall.
Well over 60% of Australians support marriage equality. As do some Coalition members in the federal parliament who have been denied the ability to express their view. Since 2004, more than 11 million Australians have already changed their view and now support equal rights for all couples. The vote last year in our federal parliament may have been lost, but the issue is alive and well and not going away.
While we did not achieve marriage equality in 2012 we can not underestimate how far we have come. By winning the change in the Labor Party's platform in support of marriage equality, marriage equality has gone from the improbable to the inevitable.
Whats more, it is thanks to Labor that same-sex couples in Australia have a range of rights in relation to property, kids, hospital visits and anti-discrimination protections that same-sex couples in other countries don’t have.
Our federal Government has just provided LGTBI seniors with new protections under proposed new national anti-discrimination laws. The Labor Party can be very proud of our record of law reform for LGTBI people and their families.
But while LGTBI people don’t have the right to marry (or stay married to) the person we love, our laws are saying that it’s ok to treat us differently to other couples.
Marriage equality is going to happen. And we know it will be a Labor Government that will deliver this change.
Thanks to a quirk in the Constitution, it is now most likely that marriage equality will be fought on a state by state basis. And as activists we must now turn our efforts to the marriage equality and same-sex marriage legislation being put forward in state and territory parliaments.
But isn’t marriage a federal issue?
According to George Williams, “the constitution grants the Federal Parliament a concurrent, rather than exclusive, power to make marriage laws. As with other areas such as taxation, this means that the states also retain power in the area.” – SMH 19 September 2012
In 2004, the Howard Government amended the marriage act in 2004 to deliberately exclude same-sex couples. George Williams believes that the states can therefore legislate for marriage rights for those couples who fall outside the “man and woman” definition inserted in the Marriage Act in 2004.
So what is happening around the states?
Tasmania was the first state to move on state-based marriage. The Same-Sex Marriage Bill was introduced by Premier Lara Giddings and passed the state’s Legislative Assembly. It was defeated by just 2 votes in their upper house. This Bill will be reintroduced in 2013.
Deputy Leader of the ACT, Andrew Barr has promised to introduce territory-based marriage equality legislation. South Australian Premier Jay Weatherill has also come out in support of marriage equality. In Western Australia a state-based marriage equality regime will be debated after the state election with the (current) Liberal Premier saying he will allow a conscience vote on the issue.
Here in NSW, a cross-party group of MPs, including Labor MLC Penny Sharpe, gave notice last year of their intention to bring in a state marriage equality bill. The issue has been referred to a Parliamentary Committee that is due to report in July. When plans for this bill were first announced, NSW's Liberal Premier came out in support of a conscience vote for Coalition MPs, something his federal counterpart refuses to do.
Marriage equality rather than same-sex marriage is an important distinction, because currently it is not only same-sex couples that are excluded by the Marriage Act. While John Howard’s amendment to the Marriage Act in 2004 was a deliberate attempt to exclude gay and lesbian couples from marrying, it has had an adverse impact on transgender and intersex people as well. Some transgender people may be forced to divorce: where one partner in an opposite-sex relationship wants to have their gender recognised; state legislation requires a divorce before new documents will be issued. This can mean a person is forced to choose between having their gender recognised and divorcing the person they love. Properly documented intersex people cannot marry at all.
Will it work?
In Tasmania, the same-sex marriage bill was narrowly defeated. A number of those who opposed it did so claiming that the legislation would be constitutionally invalid and would end up being subject to a High Court challenge. While the issue of constitutionality is a complex one, according to George Williams:
The one legal impediment to a state same-sex marriage law is that it might be inconsistent with the federal Marriage Act under section 109 of the constitution. In this case, the state law is not struck off the statute book, but lies dormant until the inconsistency is removed.
In any event, there are good reasons why inconsistency might not arise. This is because the laws operate in different fields, with the federal law covering heterosexual marriage and the Tasmanian bill dealing only with same-sex marriage. It is impossible for a person to be married under both at the same time.
Only the High Court can resolve this question.
The issue of a possible High Court Challenge should not have deterred legislators. It did not deter the O'Farrell Government from introducing electoral funding reforms that are already subject to a challenge. But there was a lot of effort (and money) put into the campaign to spook Tasmanian upper house MPs about the potential financial and reputational costs of a High Court Challenge to the Tasmanian Parliament. For some legislators, opposing the legislation on constitutional grounds was simply the excuse they were looking for.
Here in NSW, the state’s Liberal Premier has referred the issue of state-based marriage equality bills to the NSW Standing Committee on Social Issues. The Committee has been asked to examine any legal issues surrounding the passing of marriage laws at a State level, including interaction with the Commonwealth Marriage Act 1961 and the rights of couples married under a state-based scheme, including in the event of dissolution, among other things.
The Committee is due to report back in July this year.
What is clear from all sides of politics at a state level is that marriage equality is important, and will be legislated sometime this year. Tasmania and New South Wales have both moved on this constitutional opening, and other states may follow suit.
Overturning an ACT law is somewhat easier and can avoid a High Court challenge, but this will not be the case for NSW or Tasmania if and when they pass their laws.
So for activists, the priority is getting state legislation passed.
In each state and territory where legislation is introduced, Rainbow Labor will be campaigning within the Labor Party and in the community to achieve marriage equality. To get involved contact us at firstname.lastname@example.org
Author: Cathy Brown
Co-Convenor Rainbow Labor NSW