Doug PollardState-based Marriage Legalisation System
There are two 'pushes' for equal marriage going on at the moment - one in federal parliament, and one in the state parliament. Rodney Croome of the Tassie Gay & Lesbian Rights Group has the good oil on the Tasmanian Bill.
DOUG: We’re going to begin with our old friend, Rodney Croome – down, in Tasmania where the Greens are bringing-in a same-sex marriage Bill in to the State Parliament. Good morning, Rodney.
RODNEY: Hi, Doug.
DOUG: So you got back home [laughs]
RODNEY: Yes, yes. It was - - -
DOUG: ‘Cause you were in Melbourne yesterday?
RODNEY: - - - and the day before. For the Human Rights Commission’s consultation on national discrimination laws and – m’mm, yes – thanks to a certain airline whose name starts with “J - - -”
DOUG: [laughs]
RODNEY: Flights were delayed and it was a bit difficult getting back but I’m here now and glad to be back. Because there’s a lot happening about marriage equality, right now.
DOUG: Take us through what’s happened here. We spoke a little earlier on, when we were talking with Sue Pennicuik from the Victorian Greens about the fact there is a theory with some certain amount of legal opinion behind it that says the States can bring in their own same-sex marriage laws because the government has – kind of, abdicated the field by narrowing the definition in the federal Marriage Act, to be: a man and a woman - - -
RODNEY: Exactly.
DOUG: I think that’s a fair summary. So, what are the Greens actually doing down there in Tas(sic)?
RODNEY: As you said there’s a constitutional – we call it a constitutional loophole – the marriage power in the federal constitution is what they call a “concurrent” power. That means it’s shared between the federal and state governments and if the Federal government doesn’t legislate for a particular type of marriage then that power falls to the states. What people seem to forget is that for most of the time Australia’s been a nation from 1901 to 1961, marriage laws were entirely made by the states - - -
DOUG: Ah, ha.
RODNEY: - - - there wasn’t a federal Marriage Act and now, of course, we’ve a federal Marriage Act that says same-sex marriages cannot happen. So, that means that that power falls to the states. What the Tasmanian Greens have done – like the Victorian Greens or like the Victorian Greens say they will if they’re elected – is they’ve introduced legislation in to state parliament that specifically allows for same-sex marriages; it establishes all the mechanisms and institutional apparatus for marriage but of course, it’s for same-sex marriages. Given the Commonwealth Marriage Act is about opposite-sex marriages the states can’t make laws for those kinds of marriages but for same-sex marriages, it can – m’mm, the Tasmanian Greens have done this twice before. In 2005 they did it and then in 2008 – and on both occasions there was quite a lot of public debate that was sparked by that. But the laws themselves(sic), didn’t get anywhere. I’m a bit more optimistic they’ll get somewhere this time because the person who’s introduced Nick McKim is not only the Greens leader he’s also a state cabinet member and the state premier, David Bartlett in response to this move has said that he supports same-sex marriage – he has said he still believes it’s a federal issue but I’m hopeful there’s a possibility there might be a conscience vote. Or at least, some kind of inquiry into these laws that will move the issue forward.
DOUG: How does the process work; McKim will bring the Bill in to parliament so it will at least, get a first reading – yeah?
RODNEY: It’s in there already.
DOUG: Yeah?
RODNEY: Yeah. On Tuesday it was introduced. So that was the first reading and then the second reading which is when politicians make their speeches and state their positions probably – well, it won’t be until next year. Nick McKim has said that he wants to wait until it’s clear what Julia Gillard’s going to do at a national level on this issue because of course, there’s a lot of flux in the Labor Party about it as well with senior Labor members coming out in support of this. So he said ‘I’ll wait and see what’s going to happen’ and if there’s no movement at the federal level next year then ‘I’ll bring this on for debate’.
DOUG: Meanwhile, if we get a bigger Greens presence here in Victoria, in the state election we can expect something similar to happen here.
RODNEY: Yes and I think from the news I’ve seen today we can expect something similar to happen in South Australia, as well - - -
DOUG: Oh yes; what’s that news?
RODNEY: - - - just been announced the Greens in the South Australian upper house are going to co-sponsor a state, same-sex marriage Bill with state Labor member Ian Hunter who’s an openly-gay man.
DOUG: M’mm.
RODNEY: There, for the first time, you’ve an A.L.P. member actually sponsoring state same-sex marriage laws.
DOUG: There seems to be a bit of a bandwagon rolling here?
RODNEY: M’mm, yes. Yes. There is - - -
DOUG: I mean as you say there is legal opinion that says the states can do this. There is also legal opinion that says the states can’t do this. So supposing one of the states did pass such a Bill I presume the federal government would then somehow, appeal it would they not?
RODNEY: The majority of opinions I’ve seen on this from constitutional experts say that a State can do this and then, of course, the federal government is free if it wishes to amend the federal Marriage Act to create(sic) an inconsistency. To try and override the state law - - -
DOUG: M’mm.
RODNEY: - - - in which case of course the whole thing would be tested in the High Court. Now, I can’t see the current Labor government – given its divisions over this issue – would do that but if it did then, bring it on. I think looking forward – m’mm, a year to five years this issue will probably end up in the High Court, regardless. So I mean, even if the federal Marriage Act was amended to allow same-sex marriages I imagine some people who are deeply opposed to that would probably appeal that to the High Court and say the Constitution doesn’t allow that. So - - -
DOUG: Yeah. Because what’s likely to happen there is simply the wording which was ‘bunged in’ by John Howard and Co., that made it specific – you know, “one man, one woman” – for life and all that – would be taken out.
RODNEY: Yes.
DOUG: But it’s unlikely there would be specific words put in there to say “two individuals of ‘whatever’ sex or gender identity” so there would still be room for legal argument.
RODNEY: It depends on how the amendment went – I mean, if we return to the Marriage Act we had before 2004 then there would be potentially, some ambiguity and the issue would be decided in the Courts - - -
DOUG: Don’t you think it likely given the divisions within the major Parties on this issue they’re probably plump for ambiguity over certainty?
RODNEY: - - - possibly – the other option and this is the Greens’ amendment to the Marriage Act currently before the senate, does this pretty clearly. It says there should be no discrimination on the grounds of sexuality or sex so that would make it un-ambiguous - - -
DOUG: M’mm.
RODNEY: But my point is that that would probably also be challenged in the High Court - - -
DOUG: [laughs]
RODNEY: - - - by some people. On the basis that the Constitutional power the federal government has over marriage does not bear the weight of that if you like; that it doesn’t extend to that because in 1901, when our Constitution was framed the fathers of our Constitution didn’t have that in mind. That would be the argument - - -
DOUG: M’mm.
RODNEY: Whichever way we go – through state parliaments or through federal parliament with an ambiguous law, an un-ambiguous law my feeling is it would probably end up in the High Court, regardless. The High Court has never defined marriage in the Australian Constitution so in the end that may be what it comes down to.
DOUG: Whatever happens there certainly seems to be a big bandwagon rolling at the moment.
RODNEY: Yeah – well, that’s looking forward to what may happen in the future. But now clearly, the opposition to marriage equality in the major Parties is beginning to break.
DOUG: M’mm, m’mm.
RODNEY: I’ve always said that whilst it looked like a fairly hard opposition it was also quite brittle and now we’re seeing that that is in fact the case. That once one crack appears then all these other cracks open up and we have for instance, the Victorian opposition in response to the Greens’ announcement said they would have a conscience vote on this issue. The Tasmanian opposition the Liberals here, have said they will take the issue seriously and consider it, seriously – m’mm, there are people in both major Parties who are now starting to stand-up for marriage equality and things are moving along very quickly. Where that will end-up in terms of which state moves first or whether there’ll be change at a federal level it’s hard to predict - - -
DOUG: M’mm.
RODNEY: All we can predict is that change is happening and we need to make sure that it continues.
DOUG: We do indeed – well, I’ll be looking further into this whole issue later in the programme with your colleague, Rod Swift. We’re going to toss around the pros-and-cons of a conscience vote in the federal parliament. Because there’re a lot of opinions either side of that one as well but we’ll leave that for when I talk with Rod, I know you have fairly strong opinions on that one, too. But we’ll leave it for - - -
[laughs]
DOUG: - - - my conversation with Rod, later on and in the meantime keep our fingers crossed that things keep rolling on as positively as they are at the moment. Rodney, thank you for joining us this morning.
RODNEY: Thanks, Doug.
