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Same-sex marriage can be decided by states: equality advocates

Marriage equality advocates say a new report from Tasmania shows states and territories do have constitutional power to legislate for same-sex marriage.

The Tasmania Institute of Law Reform report, published Thursday, was written in response to the Tasmanian upper house voting down marriage equality legislation in that state last year.

It finds that there is no legal impediment to states enacting marriage laws and that it is uncertain whether a High Court challenge to same-sex marriage laws would succeed.

Australian Marriage Equality deputy national director Ivan Hinton said the report would "strengthen the confidence of the ACT government" to pass laws for same-sex marriage.

The ACT same-sex marriage bill will be debated in the October sitting of the Legislative Assembly and is expected to pass with the support of government MLAs and Greens MLA Shane Rattenbury.

The ACT Liberals say they will vote against the bill because marriage is a federal matter.

Mr Hinton called on the opposition to reconsider a conscience vote following the publication of the Tasmanian report.

"Last month ACT Liberals leader, Jeremy Hanson, spoke respectfully of the Canberrans who would be so directly and positively impacted by this law," he said.

"He also indicated that his party would be voting against the bill as a block due to constitutional concerns held at the time.

"We now ask Mr Hanson to allow his party members the opportunity of reviewing this report and voting freely and in good conscience."

The report says there is no way to predict which way the High Court would rule if same-sex marriage laws in Tasmania were challenged due to inconsistency with federal laws.

"None of the issues raised present an absolute impediment to achieving state-based or Commonwealth marriage equality," the report concludes.

The report says the Commonwealth is the most likely challenger to state or territory-based marriage equality laws.

It argues that the pool of individuals or lobby groups who could instigate a challenge is "limited, because it is likely that only those who are married under the same-sex marriage law would have standing to do so."

The report finds that while state-based same-sex marriage laws could be open to constitutional challenge this "does not need to be a barrier to legislative change."


  • It is time politicians deal with the important issues that Australians face, rather than focus on the issue of same sex marriage. It is only a minority of Australians wanting the marriage laws ammended and for what benefit? If same sex marriages are legalised, the divorce rate will increase, more innocent children will be adverely affected, and our health care system will be also impacted. There are very strong forces in Australia that are trying to bring down the family structure and this is not a good thing for the future of Australia.

    Peter from Ocean Grove
    Date and time
    October 10, 2013, 1:21PM
    • Peter, how does two people who love each other and are in a committed relationship wanting to have public and legal recognition of their relationship affect your marriage or anybody elses marriage at all?

      Doesn't the fact that same sex couples want to get married demonstrate the strength of the institution of marriage? They don't want to tear it down, they want to be part of it!

      That Guy
      Date and time
      October 10, 2013, 2:22PM
    • Totally agree.

      Date and time
      October 10, 2013, 3:00PM
    • I agree it is time politicians dealt with important issues that is why they should pull their heads in on this and allow same sex marriage as many other countries are. I find your comment "more innocent children will be adverely affected" to be total nonsense, they will not be affected. In fact some members of churches have been abusing INNOCENT children for generations.And it is those same churches who are against same sex marriage and also seemed to have done nothing about their child abuse.

      Religion has no authority to dictate the laws of this or any other land..

      Date and time
      October 10, 2013, 3:05PM
    • The divorce rate has not gone up in any countries that have legalised same sex marriage.
      The same number of children will be affected by same sex marriages as already are. Same sex couples can adopt, give birth and foster children without being married.
      Gay people already use the Australian health system. I fail to see how same sex marriage will affect the health system.

      Meanwhile the boost to the local economy will be huge marriage is big business.

      It's not like there will be a sudden increase in gay people. All my friends who are gay have loving caring relationships which is exactly the same as my hetrosexual relationship with amazingly similar lifestyle to mine.

      Date and time
      October 10, 2013, 3:43PM
    • Maybe true, but this is exactly what the LNP are doing in challenging the laws. Why waste taxpayers money and time of the high court challenging something that is being proposed by a democratically elected government at the wishes of it's electorate? The answer is that is LNP Rhetoric over common sense and respect for state rights.

      Date and time
      October 10, 2013, 5:40PM
    • peter I am gobsmacked by your ignorance. How are innocent children going to be affected by same sex marriage? Do you think a gay couple will have children for perverse reasons? Or do you think that a child should think that love is confined only to straight people? If you think it takes a hetro couple to raise a child properly how do you explain how some children are horrifically abused by their hetro parents? What would you like to say to the kids who are now adults raised by gay parents who are successful, well adjusted role models for society?

      And the divorce rate rising because of gay marriage...oh please! I think the rise in divorces usually come from poor misguided expectations of many hetro's as it is!

      And please tell me how will the health care system be impacted by a gay people being allowed to marry? Does being gay and signing a marriage certificate suddenly make you more susceptible to every disease known to mankind?....just for being gay and getting married? Pfffft!

      Wentworth Falls
      Date and time
      October 10, 2013, 5:44PM
    • "Same-sex marriage advocates"- Here we go again with dishonest slogans.

      Quite apart from the obvious common-sense and moral issues, the Commonwealth should go to the High Court when upstart states try to usurp what has been accepted as Commonwealth law territory for well over half a century.

      Yes, I have not given up the fight for right.

      David Morrison
      Blue Mountains
      Date and time
      October 10, 2013, 5:48PM
    • Peter - may I ask what evidence you have for your claim that "if same sex marriages are legalised, the divorce rate will increase, more innocent children will be adver[s]ely affected, and our health care system will be also impacted"?

      Also, numerous polls from reputable polling companies (Roy-Morgan, Newspoll, and so on) show a majority support from same-sex marriage, so may I ask where you get your information that the reverse is the case?

      And who are these alleged "strong forces that are trying to bring down the family structure"?

      I do, however, agree there are other issues facing Australia that are far more important, and which should as such receive more media attention.

      Andrew D
      Date and time
      October 10, 2013, 5:52PM
    • These are the issues... you are just in denial and can't see it. This is not a trending issue.. this is about human equality. It's discriminating to say the least. It's time that you realize this issue is only going to keep coming back and bank. Just get on with the problem so then we can move on if you want that let us have it. WE DO NOT WANT TO BOTHER YOUR LIFE. Why control ours?

      Date and time
      October 10, 2013, 7:05PM

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