georgewilliamsLegal experts have debated the viability of state-based same-sex marriage following the release of a draft bill that seeks to legalise it in New South Wales.

The consultation draft of the State Marriage Equality Bill 2013, which aims to “provide for marriage between adults of the same sex,” was publicly released by the NSW cross-party working group for marriage equality on Valentine’s Day.

Family law expert Professor Patrick Parkinson AM questioned the legal ability of any state-level legislation to allow same sex couples to marry due to the overriding nature of the federal Marriage Act.

In his submission to the Standing Committee on Social Issues, which is leading a public inquiry into the feasibility of state same-sex marriage law, Parkinson wrote that “it is probably not possible, for constitutional reasons, to confer upon same-sex couples the status of marriage in NSW” because there is already “a comprehensive, national, uniform law of marriage with which a state-based law would be inconsistent”.

Parkinson raised concerns that should the law pass, it would “create a new kind of status called a ‘same-sex marriage’ as opposed to simply a ‘marriage’ between two same sex partners,” a legal status that does not exist anywhere else in the world.

Parkinson has previously spoken out on the importance of keeping the definition of marriage as “a union between a man and a woman,” and authored a 2011 report on child welfare, ‘For Kid’s Sake,’ that was commissioned by the Australian Christian Lobby.

Constitutional expert Professor George Williams AO (pictured above), however, believes there is scope for NSW and other states to legislate on same-sex marriage.

In his submission to the inquiry, Williams argued that “the power to legislate with respect to marriage is not exclusive to federal Parliament,” and that state parliaments have “clear powers” to legislate on marriage matters.

“There are good reasons to believe that a carefully drafted state same-sex marriage law could survive constitutional challenge,” Williams’ submission said.

The inquiry, which closes on March 1, has published more than 200 submissions, the overwhelming majority of which express their support for same-sex marriage legislation.

Western Australia, South Australia and Tasmania are expected to debate their own same-sex marriage bills later this year.

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