MARRIAGE: by Peter WestmoreNews Weekly
State push for same-sex unions could trap Nicola Roxon
, September 15, 2012
With the strong support of the Greens, Labor governments in Tasmania, South Australia and now the Australian Capital Teritory are pushing to get legislation through at state and territory level, as a means of bypassing the federal parliament where it seems that a majority of MPs and senators will reject same-sex “marriage”.
The unpopular Labor government in Tasmania, led by Emily’s List member Lara Giddings, has pushed legislation through the lower house of the Tasmanian parliament for state-based same-sex marriage.
The bill was carried by the narrowest of margins (13 to 11) after the Speaker of the Tasmanian parliament, Michael Polley, crossed the floor to vote against the legislation. Opposition leader Will Hodgman strongly opposed any change in the law, and his Liberal Party was united behind him.
Despite the enthusiastic endorsement of the media, the bill now goes to Tasmania’s Legislative Council. With 13 of its 15 members being independents, the outcome of a vote in the upper house is uncertain.
In South Australia, the Labor Premier, Jay Weatherill, has announced that he too will support a Greens’ bill for same-sex marriage in the state.
The position is complicated in South Australia because the Liberal leader, Isobel Redmond, has publicly stated that she supports same-sex marriage, while there are a number of Labor MPs who have declared their opposition to the move. Once again, the outcome of a parliamentary vote is uncertain, but close observers expect it to be defeated.
In the ACT, the left-wing Labor Government has announced that it will introduce legislation for same-sex marriage if it is re-elected next month.
Speaking at a community forum for lesbians, gay, bisexuals and transgender (LGBT) Canberrans, the Deputy Chief Minister, Andrew Barr, said, “The ACT government is committed to legislative and social equality for LGBT Canberrans.”
He added, “We want Canberra to be the most LGBT-friendly in Australia. We will grow as a community by supporting diversity.
“A re-elected ACT Labor government will move quickly to introduce same-sex marriage legislation along the same lines as our Tasmanian colleagues.”
Although the ALP has adopted a policy of support for same-sex “marriage”, if any of these state and territory moves come to pass, they will present a difficulty for federal Attorney-General, Nicola Roxon, herself a supporter of same-sex “marriage”.
The problem is that Section 51 of the Commonwealth constitution gives the federal parliament power to enact laws for marriage, among other things. The constitution also states that federal law overrides state law, to the extent that they are inconsistent.
The federal Marriage Act, last amended in 2004, sets out the conditions under which marriages may be contracted in Australia, and it is difficult to see how the High Court, properly advised, could find that a contradictory state law could co-exist with the federal law which defines marriage as the union of one man and one woman voluntarily entered into for life.
Section 109 of the constitution makes this clear: “When a law of a state is inconsistent with a law of the commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.”
However, the federal Attorney-General has discretion as to whether to launch an action against an inconsistent state law.
If Nicola Roxon failed to exercise her discretion to challenge such a law, she would provoke furious criticism from the opposition and, arguably, permit a shift of power — which the constitution anticipated would be exercised by the commonwealth — to the states.
In the meantime, the federal parliament still has to vote on the three same-sex marriage bills which have been introduced in the Senate and the House of Representatives. These bills would amend the Marriage Act to permit same-sex couples to marry.
The government has already given debating time in the lower house to the private member’s bill moved by NSW Labor MP, Stephen Jones, ahead of a bill introduced by the Greens’ sole MP Adam Bandt and Tasmanian independent Andrew Wilkie.
However, with a number of Labor MPs, including the Prime Minister, against the bill, and the Coalition Liberal and National parties united in their opposition, it seems certain that the Jones bill will be defeated in the House of Representatives, when the issue comes to a vote.
The Senate is currently considering a third bill, moved by the Greens. A Senate inquiry into this bill recommended that it be amended; but seven Labor senators indicated that they would vote against the bill regardless, and the Coalition parties are also against it. This bill also seems certain to be defeated.
If none of the three amendments to the Marriage Act is carried by both houses of federal parliament, the definition of marriage will continue to be the union of a man and a woman, voluntarily entered into for life. The Greens’ push for same sex “marriage” seems doomed, at least for the time being.