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Australian state law reform institute says states can marry same-sex couples

Australian state law reform institute says states can marry same-sex couples

The Tasmanian Law Reform Institute has advised that there are no legal barriers to stop Australian states from marrying same-sex couples while an Australian federal government ban on same-sex marriage remains in place.

The institute gave the advice in a report it has compiled to address concerns raised by members of the Tasmanian Legislative Council as to whether states even had the power to pass laws on marriage since the passing of Australia’s national Marriage Act in 1961.

Prior to 1961 all marriages in Australia were governed under state laws and the institute found that states still shared that responsibility.

Key findings of the report are that Tasmania has the constitutional power to make its own marriage laws and that there is no certainty a challenge to such a law by the Australian Government would be successful in the High Court.

The institute calculated that the maximum cost if a High Court challenge is lost would be only $300,000.

The institute found that it was historically the norm for such a reform to be progressed at a state-by-state level and recognized that many common law jurisdictions similar to Australia now allow same-sex marriages.

Marriage equality advocates welcomed the report, which they hope will sway Tasmanian Legislative Council members when they vote again on the reform.

‘This report will give State and Territory Governments across the country the confidence that they can progress with same-sex marriage,’ Australian Marriage Equality (AME) deputy director Ivan Hinton said.

‘This report addresses issues raised by several members of the Tasmanian Legislative Council who had previously opposed the bill citing jurisdictional concerns. Tasmania now has the opportunity to join the ACT in legislating to allow same-sex couples to marry by the end of the year.

‘The Tasmanian report further reinforces the findings of a New South Wales (NSW) Parliamentary Inquiry that found states can legislate for same-sex marriage. We call on the Federal Government to respect the rights of the States and Territories to progress with a reform that is very important for the equality of many of their citizens.

‘The Tasmanian report will strengthen the arguments of the Tasmanian and ACT Attorney Generals when they discuss the matter with their State, Territory and Federal counterparts over the next two days.’

The report was also welcomed by the NSW State Parliament’s cross-party working group on same-sex marriage – made up of the National Party’s Trevor Khan, the Liberal Party’s Bruce Notley-Smith, the Australian Greens’ Mehreen Faruqi, the Labor Party’s Penny Sharpe, and Sydney independent MP Alex Greenwich.

‘The findings of the Tasmanian Law Reform Institute Report add further credibility to a the recent NSW Parliamentary Inquiry that found a State can legislate for same-sex marriage,’ the working group said in a joint statement.

‘Based on the solid legal and constitutional advice available, we continue to be confident that States can progress with a reform that has wide-spread support and will benefit couples, families, and communities.

‘If there is a high-court challenge to legislation, both reports give us confidence that NSW Same-Sex Marriage laws would survive any such challenge.’