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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."


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