A “game changing” expert legal opinion has found that a state-based same-sex marriage law proposed in Tasmania is constitutionally valid.
The advice comes from leading High Court barrister and constitutional expert, Bret Walker SC, who worked together with constitutional experts Chris Young and Perry Herzfeld to draft a legal opinion following a comprehensive review and analysis of the issues involved.
Human Rights Law Centre’s Director of Advocacy and Strategic Litigation, Anna Brown, who briefed Mr Walker to prepare a legal opinion on the Tasmanian Bill on behalf of Australian Marriage Equality, said there should now be nothing to prevent the achievement of marriage equality in Australian States.
“The advice confirms that the Tasmanian Parliament and other state parliaments are able to legislate to allow same-sex marriages. This is fantastic news that paves the way to achieving marriage equality in Australia very soon.
“While many legal commentators have expressed views on this topic, none of the calibre and standing of Mr Walker SC and his assisting counsel have engaged in such a thorough review and analysis of the history and development of marriage under English and Australian law,” said Ms Brown.
Australian Marriage Equality national director, Rodney Croome, welcomed the advice.
“Mr Walker’s vindication of the constitutionality of state same-sex marriage laws is a game changer in the Australian marriage equality debate because it confirms that the states can act in the absence of action from the federal government,” said Mr Croome
Mr Croome is urging the Upper House to support a motion from Ruth Forrest MLC to revisit the Same-Sex Marriage Bill in the light of this new information.
“Those Tasmanian Upper House members who expressed legitimate concerns about the constitutional validity of the Same-Sex Marriage Bill can rest assured their concerns have been addressed and the Bill is constitutionally safe,” said Mr Croome.
Independent Tasmanian Upper House member of parliament, the Hon Ruth Forrest MLC, who tabled the bill, also welcomed Mr Walker’s legal opinion.
“With this legal advice from one of Australia’s most highly regarded legal minds, members of the Legislative Council who previously raised genuine questions and sought further information and assurance in 2012 regarding this issue can now rest assured that same sex marriage can be progressed in Tasmania. I urge all MLC’s to fully consider this advice and give it the respect it deserves by allowing the debate to be re-opened,” said Ms Forrest.
Ms Forrest has a motion before the Tasmanian Upper House to re-introduce the Same-Sex Marriage Bill which was narrowly defeated in the Upper House last year.
Mr Walker is held in high esteem by key Tasmanian Upper House members. He has been described by Upper House President, Jim Wilkinson, as “Australia’s acknowledged leading constitutional lawyer”, by Greg Hall MLC as “the country’s top constitutional law expert” and by Paul Harriss MLC as “one of the very best in Australia” according to Hansard records.
The advice follows the recent release of a report from the Tasmanian Law Reform Institute which found that states can legislate for same-sex marriages and would have a strong case should there be a High Court challenge against such laws.
The legal opinion prepared by Mr Bret Walker SC also confirms the constitutional power of the Federal Parliament to pass laws for same-sex marriages.
Further information/resources
Summaries of the legal opinion: 1 page version | 3 page version
A complete copy of The Legal Opinion.
Same-Sex Marriage Bill 2012 (Tas)
For further details or comments, please contact:
Anna Brown, Director of Advocacy & Strategic Litigation, 0422 235 522
Rodney Croome, National Director, Australian Marriage Equality, 0409 010 668
The Hon Ruth Forrest, MLC, 0419 879 524
Author: Rodney Croome
Publication: Human Rights Law Centre & Australian Marriage Equality
Date: 18 October 2013