High Court barrister and constitutional expert Bret Walker has worked with other leading experts in the field Chris Young and Perry Herzfeld to draft a legal opinion on the Tasmanian legislation.
The opinion is already being heralded as “game-changing” by marriage equality advocates, including the Human Rights Law Centre’s Director of Advocacy and Strategic Litigation, Anna Brown, who briefed Walker on the issue.
“The advice confirms that the Tasmanian Parliament and other state parliaments able to legislate to allow same-sex marriages. This is fantastic news that paves the way to achieving marriage equality in Australia very soon,” said Brown.
“While many legal commentators have expressed views on this topic, none of the calibre and standing of Mr Walker SC and his assisting counsel have engaged in such a thorough review and analysis of the history and development of marriage under English and Australian law.”
The Tasmanian legislation was voted down in the state’s Legislative Assembly last year, with some members citing concern an expensive High Court challenge to the law would result in it being overturned.
Independent Tasmanian MLC Ruth Forrest had planned to re-introduce the bill earlier this week until anti-gay organisation Save Marriage Coalition claimed the bill was unconstitutional, delaying its introduction for two more weeks.
Australian Marriage Equality National Director Rodney Croome said Walker’s expert advice should put the Tasmanian parliament at ease.
“Those Tasmanian Upper House members who expressed legitimate concerns about the constitutional validity of the Same-Sex Marriage Bill can rest assured their concerns have been addressed and the Bill is constitutionally safe,” said Croome.
“Mr Walker’s vindication of the constitutionality of state same-sex marriage laws is a game changer in the Australian marriage equality debate because it confirms that the states can act in the absence of action from the federal government.”
The new opinion follows weeks of speculation by a wide-range of legal experts on the validity of state-based marriage legislation, many of whom have argued such bills would not survive a High Court challenge.
As well as being a High Court barrister, Walker is widely considered Australia’s top constitutional law expert.