Tuesday 29 October 2013

Hansard of the Legislative Council


(No. 41)


Mr PRESIDENT - As the honourable member for Murchison is approaching the podium, I remind members that the debate is, as can be seen on the motion, that the Same-Sex Marriage Bill be restored to the notice paper. The debate is not a second reading speech and debate on whether you agree or disagree with the Same-Sex Marriage Bill.

Therefore, I ask members to do all they can to restrict themselves to the motion at hand and not be tempted to revert to a second reading debate on the bill which was debated a bit over a year ago. I know I will not have to remind members if they can restrict themselves accordingly. We have spoken about the type of matters to be taken into account, such as new matters, such as the report from Bret Walker SC, matters such as the New South Wales's select committee in relation to same-sex marriage, and also the ACT legislation, and any other new matters that have arisen. If the debate can be restricted to some degree to those areas it would be appreciated.

Everyone should have a look at the motion and see what the motion is. It is not a second reading debate on whether you agree or disagree with same-sex marriage. It is about whether the matter should be restored to the notice paper.

Ms FORREST (Murchison - Motion) - Mr President, I move -

That the Same-Sex Marriage Bill 2012 (No. 41) be restored to enable the bill to be reconsidered and debated at a later time.



Mr FINCH  (Rosevears)  Mr President, there has been some public criticism of our intention to debate the member for Murchison's motion to restore the Same‑Sex Marriage Bill to our notice paper. Some of that criticism has been motivated by opposition to marriage equality and an attempt to stifle debate on the subject. We as elected members of the Legislative Council decide what we want to put forward or discuss. As the member for Murchison has told the House, it is members' day today and we decide those issues that are of interest to us that we want to discuss.

As I understand it, things have moved on since this House rejected the Same‑Sex Marriage Bill and there have been numerous legal opinions - one from the High Court lawyer, Bret Walker, who has been mentioned already, who addressed concerns raised by some MLCs in last year's debate and concluded that the legislation could survive a legal challenge because it did not conflict with the federal marriage act. It is not valid to compare Tasmania's proposed legislation with that of the ACT, which is now subject to a High Court challenge.

The proposed legislation in Tasmania is more robust than the ACT law. It is a furphy for people to claim to be concerned about the law's constitutional validity to vote against it, reconsidering it on the basis of the High Court action.

I will quote from a response we received this morning to the Save Marriage Coalition saying that any Tasmanian legislation would be subject to a High Court challenge like the ACT law. I quote:

We note that yesterday Mr Guy Barnett from the Save Marriage Coalition sent you a letter that included the Writ of Summons outlining the Commonwealth's case against the ACT Marriage Equality (Same-Sex) Act. His point was that the Tasmanian Same-Sex Marriage Bill will also be subject to a challenge in the High Court and that you should therefore not pass a motion to revisit that bill.

In fact what the Writ of Summons highlights is the crucial difference between the ACT Act and the Tasmanian Bill. As Mr Bret Walker SC has said in advice we have already forwarded to you, the ACT Act draws on the Commonwealth's definition of marriage, which he believes is clearly unconstitutional. In contrast, the Tasmanian Bill creates a distinct legal status of same-sex marriage which Mr Walker has said creates no points of conflict with federal law and is therefore constitutionally valid. The Writ of Summons focuses precisely on this critical flaw in the ACT Act.

But even if Mr Barnett is correct and the ACT High Court challenge does have implications for Tasmania, this is a reason to pass this motion. The implications of the ACT High Court challenge, together with the Walker advice and the TLRI report, are significant developments in the same-sex marriage debate which deserve to be dealt with in a fully-fledged debate.

That was an email from the Australian Marriage Equality and Tasmanians United for Marriage Equality groups.

The constitutional arguments have developed. Other jurisdictions have progressed in their debate on the subject and it may no longer be appropriate to use constitutional arguments in opposition to the bill. If you support marriage equality you will support this motion, but if you do not you should say so and not suggest that any future High Court challenge would be the end of the world.

I suggest that we should clearly state our views on the issue of marriage equality. I am all for continuing the debate, and I support the motion by the member for Murchison. We have heard numerous arguments since our last debate and there is justification for resumption in some of the arguments that we have heard. One of those participating in the ongoing public debate has been the Professor of Constitutional Law at the University of Sydney, Anne Twomey. I will quote from Professor Twomey's argument:

It all comes down to matters of interpretation, and the interpretation that counts is that of the High Court.

Precisely, Mr President. Professor Twomey goes on:

The Constitution lists specific powers which the Commonwealth Parliament may exercise. They include the powers to make laws with respect to 'marriage' and 'divorce and matrimonial causes'.

But these are not exclusive powers. The states can legislate on these subjects too. Unlike the Commonwealth, the states have full power to legislate on any subject except for a few small areas.

However, if the state law is inconsistent with the Commonwealth law, then the Commonwealth law prevails and the state law becomes inoperative to the extent of the inconsistency.

At the time of federation, each of the colonies had a law governing marriage and these laws continued in place as state laws until the Commonwealth Parliament enacted the Marriage Act 1961, which provided a single national law in relation to marriage. All the state marriage laws were overridden and eventually repealed.

So it is not accurate to claim that marriage is a Commonwealth matter and the states can't legislate on the subject. The states have the power to legislate about marriage, but if that law is inconsistent with the Commonwealth law, then the state law will be inoperative.

[12.00 p.m.]

Let us leave it to those legal minds who are empowered to make the decision to decide if any Tasmanian law on marriage equality is inconsistent. Let us get on with this debate and inform our constituents on how we stand on marriage between people of the same sex. In that respect, I place on record that my mind has not changed on this subject, taking into account that I have had the suggestion by the Liberal Party that they will be standing a candidate against me in my next election in May on the grounds of this issue and the forestry debate and other issues that are not in line with Liberal policies. That is going to be interesting.

I have received some veiled threats by email about the way I am going to be dealt with through this process. That is going to be an interesting process for me to go through, with same-sex marriage probably being at the top of the agenda in my electorate because I have a very religiously-inclined electorate. However, I believe that in this day and age people are sympathetic to the message of equality that comes through this law. I support the motion.