A Snail is a Worthy Motif
When scientists in Taiwan recently discovered a new species of snail they decided to name it after marriage equality.
“We decided that maybe this is a good occasion to name the snail to remember the struggle for the recognition of same-sex marriage rights.”
The Taiwanese scientist’s decision seems an apt choice, a snail is a fair totem for a political movement that many people feel is taking far too long to achieve success in Australia and many other places around the world.
Recent polls have shown acceptance of same sex marriage in Australia as being as high as 70%. Yet ten years after the Howard government defined the marriage act as being “between a man and woman” there seems to be little chance of the law being changed in the near future.
Meanwhile seventeen nations have now approved marriage between same sex couples leading many Australians to question why we’re lagging behind.
On the federal level there are currently two bills sitting in the wings. One from Liberal Democrat Senator David Leyonhjelm and another in the hands of Deputy Labor leader Tanya Plibersek. Both are waiting for the Liberal Party to declare whether its members will be allowed a conscience vote on the issue. Without a change in stance by the Liberals any bill is set to fail.
Is a State Based Law Constitutionally Valid?
Last year the battle moved to the state and territory level when the ACT passed marriage equality laws. The High Court quickly proclaimed the laws were inconsistent with federal legislation and the laws were deemed unconstitutional, leaving 31 couples who were briefly married – again unwed.
Undeterred by the case in the ACT, Lynn MacLaren MLC for The Greens has put forward a bill that would allow for same sex marriage in Western Australia.
Last month MacLaren and Constitutional Law expert Professor George Williams delivered a presentation arguing why they believe the legislation before the WA parliament will have a better chance at succeeding.
MacLaren outlined her motivation behind the bill outlining that it was one of the last steps in a long road for equality and LGBTI rights.
“People in the LGBTI community, their friends and their families do not deserve to live in a world where they are discriminated against,” MacLaren said.
The Greens member for the Southern Metro region shared that we had noticed that many friends were heading overseas to be married and then returning to Australia and being treated as second class citizens.
“It was by that differentiation that I saw that we were stopping, especially young people who are growing up and discovering their identities from actually exploring and feeling really good about who they are, because there is this discrimination that says ‘You’re not entitled to be married, you’re not entitled to a life-long partnership and to make that bound in-front of all the people that matter in your life because of your sexuality.”
MacLaren said bringing the legislation into the upper house had faced many challenges. When the legislation was first introduced Liberal member Nick Goiran appealed to the President of the House to consider throwing out the proposal on the grounds it was unconstitutional.
Barry House, the President of the state’s Legislative Council considered the matter over the parliament’s summer break and ruled that the debate could move forward when parliament reconvened.
“People will use the law as an excuse not to deal with a value, and they’ll use it was a weapon or a tool to try to shut you up or make you go away, or turn away from the change that’s needing.” MacLaren said.
MacLaren said the next stage of the process is getting politicians to get behind the issue; “Those members need to step up to their responsibilities as representatives of the people and actually support it because it’s a good and progressive change.”
The politician called on members of the LGBTI community to contact their local member and let them know if the issue was important to them and their families and urged people to let their local members know that they would support them if they got behind the bill.
With the bill introduced in the Australian Capital Territory last year being thrown out after the federal government appealed to the High Court, many thought that the pathway of state based bills was no longer the option but constitutional law expert Professor George Williams shared how the proposed WA law was different.
“The question is whether the Western Australian parliament can take leadership in this area and recognise same sex marriage.” Professor Williams said.
The academic said that the debate about same sex marriage had become entwined with questions of constitutional law more so than any other recent debate about social policy.
In some countries proponents of same sex marriage have appealed to their nation’s highest courts and argued that denying marriage to all people was discriminatory. The Professor said the legal reasoning along these lines was becoming common throughout the world, but would not be found in Australia.
“Australia is the only democratic country in the world that does not have a bill of rights, we have no entrenched protections in the constitution about discrimination or guarantees of equality.”
Professor Williams argued that unlike foreign countries that have achieved marriage equality by highlighting discrimination, the legal argument in Australia was based around questions of federalism, and it’s more about who can recognise same sex marriage and whether a federal law trumps a state law.
So the question of whether a state could bring in a same sex marriage law is now a very murky and difficult constitutional question, and the area is filled with myths, misconceptions and furphies.
Professor Williams challenged the notion that only the federal parliament can make laws about marriage. Highlighting that marriage was listed in section 51 of the constitution, he noted that this section gave concurrent powers to both the state and federal governments.
The professor also argued that the Western Australian constitution allowed the state’s parliament to create laws in any area. While a national law is easier to manage and more desirable, it does not restrict the state from making its own laws.
The greater challenge in the professor’s view was about whether a state law would be deemed inconsistent with federal laws.
“A state law has a real chance of surviving, but only if it is drafted in a way that it has no possible overlap with the federal marriage act. In particular it needs to set up a separate species of ‘same sex marriage’ which is distinct in its operation from marriage regulated under federal law.”
Professor Williams said a law drafted in this way had the best chance of surviving a challenge in the High Court.
Where Do Other Politicians Stand?
OUTinPerth asked all members of the state’s Legislative Council where they stood on the issue of marriage equality and whether they would support Lynn MacLaren’s bill.
While many of the members were out of the state on parliamentary business, we received a range of responses.
Sally Talbott, MLC, ALP
Dr Talbott voiced her support for marriage equality in the parliament last year, she told OUTinPerth that she believes a focus on changing the commonwealth legislation would be the most effective way forward.
“As far as the Greens’ bill goes, I think the 2013 ACT experience suggests that all our political energies need to be focused on changing the Commonwealth legislation.
“I am working with my Federal and State colleagues to ensure that this happens as soon as possible. The task is to change the hearts and minds of those across the political spectrum who are still resisting, for reasons that can almost exclusively be categorised as homophobic, the move required to change the current law.
“The LGBTI community is, I believe, entitled to require its political activists to bring about this change in a way that ensures certainty and security to everyone who chooses to marry the person they wish to make their life partner.
Alanna Clohesy, MLC, ALP
The member for the East Metropolitan region confirmed that she is a big supporter of marriage equality and would be a supporter of The Greens’ bill. Ms Clohesy said although she would be supportive she didn’t want to give people false hope.
“Without the State Government’s support it’s unlikely to get through the State Parliament and may not withstand a High Court challenge. Best option is to keep fighting to make sure the federal parliament listens.”
Stephen Dawson, MLC, ALP
Alongside his partner Dennis, the Labor member for the Mining and Pastoral region was one of the 31 couples who wed in the ACT last year.
“I’m a very big supporter of marriage equality having already been married twice, once in Ireland that isn’t recognised in Australia and a second time in the ACT only to have the High Court overturn it.”
“If Lynn brings her bill forward it’s something to consider but at the end of the day I think the High Court’s ruling points to the federal parliament being the only Australian Parliament having the power to legalise same sex marriage.”
“It’s time the federal government listened to the will of the community and moved on this issue.”
Sue Ellery, MLC, ALP
“Yes I support marriage equality, and yes I will support the Greens’ bill unless some miracle happens in the Federal parliament which is really where the law needs to change. If the issue is resolved in the Federal parliament a local WA bill won’t be necessary.
Paul Brown, MLC, NAT
Paul Brown, the Nationals’ representative for the Agricultural region voiced his support for the bill.
“I do support marriage equality and I will be supporting Lynn’s bill. I don’t consider this a Greens’ bill as I believe it should be a conscience vote, not one that is dictated by party lines. I imagine that there will be a variety of opinions regarding this, and I am sure that that will be the case, even within my own party, The Nationals.”
Nick Goiran, MLC, LIB
Mr Goiran was away overseas on parliamentary business but confirmed that his previous opposition to same sex marriage remained unchanged.
Simon O’Brien MLC, LIB
The member for the South Metropolitan region described the bill as a stunt and said he wouldn’t be supporting it.
“The fact of the matter is it’s not going to get up. It’s been tried by The Greens in the state parliament before, time and time again, and this time’s not going to be an exception.
The Cost of the High Court Challenge
The federal government’s High Court challenge of the ACT’s same sex marriage laws last year cost tax payers more than $800,000.
The ACT’s Solicitor-General Simon Garrison revealed the cost at a Legislative Assembly hearing in early November. The Australian Capital Territory has paid $500,000 to the Commonwealth after it lost the case and was ordered to pay costs.
Mr Garrison stated that he stood by the advice given in the case and that the process had allowed for a greater understanding of the federal marriage act.
“My own view is I don’t think I would have changed any of the advice we gave. No matter is entirely risk free and we now have a greater body of knowledge about the operation of the Commonwealth Marriage Act,” Garrison said.
Graeme Watson
