Gay-marriage in Tasmania will be struck down by High Court
Like most of the gay community, I was filled with joy when I heard that Tasmania’s government decided to pass a gender-neutral marriage act – effectively “legalising” gay marriage in Tasmania. Tasmania’s progress has been impressive. It’s gone from being the last state in Australia to decriminalise homosexuality to being the first state in the nation to reach marriage equality. Only I’m not sure how it will work.
To explain what I mean clearly, we need to consider the historical context.
Australia is one of the few countries to start with a vote, not a war. It was originally a bunch of different British colonies that realised they would be better off forming a single country. The Commonwealth was intended to bring the states together around big issues like national defence, while leaving “every day” issues to the States. Each colony was going to maintain it’s own identity and culture, while competing (fairly) with each other to be the best place to live.
On 1 January 1901 “Australia” (the continent) became one single country (the federation) and the colonies became the States. For a culinary example of federalism, consider the humble ginger nut biscuit: every state has it’s own idea what a ginger nut is. In Queensland they’re very gingery, in New South Wales they contain much more sugar and have a harder texture, while in Victoria they tend to be comparatively chewy.
The act of federation required the States to give up a few things – like printing their own currencies or having their own navies, and in exchange they would never have a war with each other, and enjoy free trade between each other. The constitution divided up the power: the Commonwealth, was responsible for communications, foreign policy, the national defence, seaports, corporations, income tax and social-security programs, while the states would be responsible for highways, health, education, policing, railways, most criminal law, industrial relations, and many other powers).
However, over time the Commonwealth government’s powers have grown – the States have “referred” powers to the federal government (by passing laws saying “Whatever – we totes don’t care, the Commonwealth can take care of that”), and at times the federal government has exercised it’s power over corporations, and its revenues from income tax to bulk up its powers.
The States are free to pass any law they want, except for the things they gave up at Federation. However, this leads to basic problem: it is impossible to obey two contradictory laws at the same time. Fortunately the people who wrote the constitution saw this coming – section 109 says:
“When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid”
The Marriage Act is intended to be the last word on marriage in Australia. In fact the 2004 amendments to the act (passed by the Howard government, and fully supported by the Australian Labor Party’s Attorney-General) were specifically designed to prevent recognising same-sex marriage from overseas. It says:
“Marriage, means the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.”
While the state of Tasmania may issue marriage certificates to people of the same gender, those certificates won’t mean anything outside of Tasmania. They will be meaningless at federal law. Of course, cynics (including our Prime Minister) argue that all marriage certificates are meaningless.
The only way same-sex marriage could be legal in Tasmania would be for the Commonwealth to pass a law saying, “we don’t intend to legislate for same-sex marriage, but the states are free to do so”, and that’s unlikely.
What the political establishment need to face up to is that this state-based approach to recognising same-sex relationships can’t work in Australia. Of course, they know this: law reforms in the areas of euthanasia, or nuclear energy regularly fail on this exact point (rather than the merits or otherwise). When the federal government says that’s a state matter what they really mean is “we don’t want change, but we want the High Court to stop it”.
State-based relationship laws are crumbs from the table – that are cynically designed to keep us distracted from the real issue: Commonwealth law forbids equality in Australia, and even progressive politicians like Chris Bowen think there are more votes in continuing to marginalise gays. And, as long as we continue to fight the likes of Wendy Francis over these laws we will continue to ignore what we need to do.
Give it time – Tasmania’s proposed laws will be (unfortunately) struck down on the back of a legal challenge from the religious right. Because of the Commonwealth’s 2004 definition of marriage, the only way for these Tasmanian marriages to be worth the paper they’re certified on is for the High Court to agree that they’re “not marriages”.
Having said that – the day they pass the laws I’m going to celebrate for Tasmania.