The same-sex marriage debate took to the states last week, with Tasmanian Greens and gay rights activists appealing for state governments to take up the issue.
State Greens Leader Nick McKim and gay rights activist Rodney Croome said last week Tasmanian Premier David Bartlett was wrong to suggest that only the Federal Government could legislate for same-sex marriage. They said the issue can be dealt with at a state level.
The Tasmanian Greens have twice moved same-sex marriage laws in Tasmanian Parliament and the Tasmanian branch of the ALP passed a motion in favour of same-sex marriage before the party’s national conference last month.
Bartlett however, has ruled out any further move saying it is not part of state politics.
“I’ll tell you this, the state Government will not be moving on same-sex marriage,” he told ABC Radio.
With bipartisan federal opposition, it’s unlikely a state Labor government would challenge the Rudd Government in the near future, and there is outside concern state same-sex marriages would further complicate Australia’s relationship recognition system.
Croome told Southern Star discussion on states legislating for gay marriage should not confuse, but rather continue, discussion and said it was one way forward for the marriage debate.
“Any discussion, at whatever level of government is good,” Croome said.
“Clearly [the Federal Government] is not responding to public opinion and as they are staunchly opposed to reform at a federal level, given the stalemate, it makes sense to raise it at a state level.”
McKim argues that although the Marriage Act is a Commonwealth statute, there is no law that specifically legislates against same-sex marriage, leaving states with an avenue of possibility.
“It is clear now that the Federal Act only relates to marriage between a man and a woman, and there is nothing that prohibits same-sex marriage in that Act, and indeed there is nothing in any other Federal statute that prohibits same-sex marriage,” McKim told state Parliament on August 18.
“As marriage is a concurrent power in the Australian Constitution, it is entirely legal, right and proper — and, in my view, moral and sensible — for state parliaments to show the lead and pass laws allowing same-sex couples to marry.”
Croome said the issue was worth raising as it was a way to inform the public that the debate will not go away.
“Until the 1960s all Australian states had their own Marriage Acts, and it’s clear from the advice of leading constitutional academics that they are free to go down that path again with same-sex marriage laws,” he said.
McKim and Croome point to advice from constitutional lawyer Professor George Williams which suggests the Australian Constitution does not prevent states from legislating for same-sex marriage.

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