10 October 2013

Tasmanian Marriage Regime

The Tasmania Law Reform Institute research paper [PDF] The Legal Issues Relating to Same-Sex Marriage considers issues regarding a state-based same-sex marriage scheme. It complements the George Williams paper highlighted here.

The authors note that the objective
is not to draw conclusions or to provide recommendations; it is simply to provide a comprehensive guide to both sides of the debate, to allow the reader to appreciate more fully the legal arguments in relation to same-sex marriage. 
They go on to comment that
 Same-sex marriage is a topical issue in Australian politics and in society more generally at both a state and Commonwealth level. In 2012, an unsuccessful attempt was made to pass a Tasmanian same-sex marriage law. Other Australian states are also in the process of debating same-sex marriage laws. State-based initiatives raise legal questions about the capacity of the states to legislate for same-sex marriage, and the consequences which may follow if such laws are enacted. The legal questions emerged as major concerns for Tasmanian parliamentarians during the 2012 Same-Sex Marriage Bill debate. This paper aims to address these concerns. ...   
The issues and concerns raised by the Tasmanian Legislative Councillors in response to the Same-Sex Marriage Bill provide the starting point for this paper. Among the concerns voiced were:
  • That marriage is a topic that should be dealt with by the Commonwealth Parliament. Some members suggested that a national referendum is the only way to measure public opinion properly and to determine whether a change to existing laws should be made. 
  • That the Tasmanian Same-Sex Marriage Bill, if passed, would be unconstitutional. Advice from academics, practitioners and the Solicitor General could not provide a definitive prediction of whether the Tasmanian Bill would be valid. 
  • The likelihood of the Tasmanian Same-Sex Marriage Bill, if passed, being challenged in the High Court. Uncertainty about the parties who would have standing to make such a challenge was also a concern. 
  • The costs of defending a challenge in the High Court. Members quoted figures between $50,000 and $1.2 million as the potential cost. The uncertainty of the cost, coupled with the uncertainty of success in a High Court challenge was a significant factor in many of the dissenting members’ speeches. 
  • That same-sex marriages entered into in Tasmania would not be recognised as valid marriages in other states or under Commonwealth laws. 
  • That a same-sex marriage law would not achieve true legal equality for same-sex couples. 
The paper deals with a succession of questions regarding  state-based same-sex marriage, initially by offering explanatory context and then by providing a detailed assessment of competing arguments.

The authors indicate that
Many of the issues involved in this debate rely on complex legal principles. In writing this paper, attempts have been made to simplify the material as much as possible, while still retaining the integrity of the legal arguments. ... The 2012 Same-Sex Marriage Bill will be considered in some detail. However, this paper is intended to have a broader application than the analysis of the 2012 iteration, as any future bills on this topic may encounter new and different challenges. Discussion of the 2012 Bill is therefore intended to highlight the legal hurdles it faced and suggest ways in which these difficulties might be avoided in future versions. The issues which will be covered in Part 2 are as follows: 
1. What are the differences in the way marriage and same-sex relationships are currently recognised? 
2. Does the Commonwealth government have the power to make laws for same-sex marriage? 
3. Can Tasmania legislate for same-sex marriage? 
4. What would be the consequences if a Tasmanian same-sex marriage law came into force but was later invalidated? 
5. Which jurisdiction would deal with the breakdown of a same-sex marriage? 
6. Could same-sex marriages be recognised or dissolved outside of Tasmania? 
7. Would a same-sex marriage law encourage or lead to the sanctioning of polygamous marriages? 
8. If a law has the potential to be challenged in court, should it be passed? 
9. Who would have standing to bring an action to challenge a Tasmanian same-sex marriage law in the High Court? 
10. What would it cost Tasmania if its same-sex marriage laws were challenged in the High Court? 
11. Have same-sex marriage laws been enacted in overseas jurisdictions?
... As has been noted throughout the paper, the answers to some of the questions raised will be unknown until they are determined by the High Court. Some aspects of this debate raise relatively new issues which have not previously been considered. Consequently, it is difficult to even predict how the High Court might approach these issues. 
In closing, it can be noted that a state-by-state same-sex marriage scheme would not be an unusual legislative development. Until 1960, marriage was regulated by the states, with each state having its own slightly different legislation. It was not until the Commonwealth recognised a need for national uniformity that the Marriage Act came into existence. Similarly, Deeds of Relationship (or the equivalent) are regulated at a state level and are now available in Tasmania, Victoria, New South Wales, the Australian Capital Territory and Queensland. Commonwealth recognition of these relationships has been achieved through s 4AA of the Family Law Act, which lists formal registration of a relationship as an indicator of the existence of a de facto relationship for Commonwealth purposes. 
The recognition of same-sex marriage in other countries illustrates the wide range of ways in which the topic can be approached and regulated. Many common-law countries with systems similar to Australia now recognise same- sex marriage using a variety of different legislative mechanisms. Indeed, during the writing of this paper, there has been a significant increase in the number of jurisdictions which now recognise same-sex marriage, which indicates the rapid pace at which change and acceptance is occurring. Of course, marriage equality legislation remains in its infancy, and it is inevitable that new issues and challenges will arise. How these are dealt with remains to be seen.