Tasmanian ‘same-sex marriage’ bill would breach Australia’s ConstitutionWednesday, August 29, 2012
State-based “same-sex marriage” bills like the one tabled yesterday by Premier Lara Giddings and Greens leader Nick McKim, if passed, would breach the Australian Constitution, say two senior lawyers.
According to Neville Rochow SC and barrister Christopher Brohier, the term “marriage” in the Australian Constitution means what it meant when the Constitution was originally passed by a referendum of the people – the voluntary union for life of one man and one woman, to the exclusion of all others.
“Judgements of four Chief Justices of the High Court support this meaning,” the lawyers said.
Mr Rochow and Mr Brohier believe there are several good reasons why a Tasmanian “same-sex marriage” law, which is broadly similar in wording to the SA Greens’ Marriage Equality Bill 2012, would be unconstitutional and inoperative.
“It is highly arguable that there would be a direct inconsistency between the Marriage Act and the Bill, causing it to be inoperative. Section 109 of the Constitution provides that when a State law is inconsistent with Commonwealth law, the former shall, to the extent of the inconsistency, be invalid.
“The fatal and obvious flaw in Professor George Williams’ opinion that the 2004 Marriage Act amendments clear the way for States to legislate for ‘same-sex marriages’ is that it is contrary to the express terms of the Marriage Act. At the time of passage, the legal institution of same-sex ‘marriage’ did not exist in Australia.
“The Marriage Act has been in force for over 40 years and the institution of marriage has been assumed to have the same form since times preceding federation,” they said.
The lawyers told FamilyVoice that they believe only a referendum of the Australian people could change the man-woman meaning of marriage.
- Marriage and sexuality