HOBART, Tasmania, Australia — Tasmania’s Premier Lara Giddings, during a speech delivered to the State Labor Party conference Saturday, announced that she would move to legislate same-sex marriage equality by the end of the year.
The move appeared to catch the Australian federal government and the six other states by surprise, with a spokesperson from the government of Victoria noting that there has not been consideration on whether or not it would recognize same-sex marriages from Tasmania — and restating its view that marriage laws were a federal matter.
Constitutional law expert Professor George Williams on Sunday argued his position that marriage falls under the “concurrent” or shared powers of Section 51 of the federal constitution, leaving the door open for states to legislate on same-sex marriage.
The constitution grants two types of power to the Commonwealth. Section 51 gives concurrent power over topics such as taxation that can be the subject of both federal and state laws. Section 52 grants exclusive powers only to the Commonwealth over matters such as the seat of federal government. Marriage falls into the first category.
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“For most of our life as a nation, marriage has been regulated by the states. The Commonwealth first passed a law on the topic in 1961 when it brought about a national scheme. The question today is whether one or more states might re-enter the field to legislate for same-sex marriage.
The only limitation is that, where federal and state laws conflict, the Commonwealth law takes precedence. My view is that a state same-sex marriage law would not be inconsistent with the federal Marriage Act after it was narrowed in 2004 to make sure it dealt only with heterosexual marriage. However, this could only be determined by the High Court.
The first jurisdiction to permit same-sex marriage will probably not be the Commonwealth. While NSW is also unlikely, given the difficulty of passing such a law through its lower house, the law might be enacted in the ACT, South Australia or Tasmania,” he wrote.
Giddings said she had obtained legal advice from the solicitor-general that there was no obstacle to stop legislation.
“Labor has a proud history of tackling discrimination and introducing important social reform,” she said. “I expect the rest of the country will be watching closely as we work through this process.” Giddings also said that under the legislation being considered, Tasmania would grant marriage licences to same-sex couples from the other six states.
