Tasmania to seek to have same sex marriage

Tasmanian Premier Lara Giddins has announced that Labor will be seeking that Tasmania legislate for same sex marriage. With the support of the Greens, this will likely pass the Lower House, but whether it passes the Upper House, controlled by independents, is another matter.

Nevertheless, the Premier is expecting a tourism boom, as gay couples seek to marry in the Apple Isle.

One commentator, at least, has said that any proposed laws will be doomed as they will fail a constitutional challenge. While there is a risk, my view is that the laws should survive a risk. This argument was put as long ago as 2008, covered by my blog, by Professor George Williams.

Here goes:

1. The States can legislate about anything.
2. The Commonwealth Parliament can only legislate for topics given to it under the Commonwealth Constitution, for example, the corporations power, or the external affairs power. There is a power, for example,  for the Commonwealth to legislate for marriage and divorce.
3. Just because a power is given to the Commonwealth to legislate, does not compel it to do so, and does not mean that any laws it passes necessarily “cover the field”.
4. If there is an inconsistency between a valid State law and a valid Commonwealth law, the latter prevails, to the extent of the inconsistency.
5. Therefore, if the Commonwealth law “covers the field” about marriage, then the Commonwealth law prevails over the State law.
6. Therefore, that argument goes, because the Marriage Act says that marriage is only between a man and a woman, that it therefore covers the field about what is marriage, and would therefore override any State law allowing same sex marriage.
7. However, as Professor George Williams points out, until 2004 the Marriage Act did not define the sexuality of the two parties. Until 2004 it was possible, in theory, for a same sex marriage to have occurred.
8. Then in 2004 the Howard Government, with Labor support, amended the Marriage Act so that: “‘marriage’ means the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.”
9. In other words, as Professor Williams points out, the Commonwealth no longer covered the field when it came to same sex marriage, allowing the States to legislate about same sex marriage if they desired.

Can a same sex couple get divorced?

It is unclear if a couple married under such a law could be divorced under the Family Law Act. If there were a ruling from the High Court that the Tasmanian laws were valid, there should be nothing to prevent such a divorce proceeding.