Page 2765 - Week 09 - Thursday, 8 August 2013
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remain deadlocked on this issue for some time, for as long as the federal coalition does not permit a conscience vote of its members on the floor of the House of Representatives and the Senate.
But setting that question to one side, I was pleased to hear the comments of Mr Hanson in relation to the diversity of views that exist around the issue of same-sex marriage, and that is a very legitimate point to make. There is a diversity of view on this question. But what that observation underlines is that that is the whole point of same-sex marriage law. No-one is compelled to enter into a marriage. No-one is compelled to enter into a same-sex marriage. But people should be entitled to the choice of doing so. It may very well be the case.
I have no reason to doubt the story that Mr Hanson told about the same-sex couple that are close to him and his family and their views on this matter. And that is a view that does exist amongst some couples. But equally there are other couples who have a different view and who find it discriminatory and objectionable that they should be excluded from the capacity to formalise their relationship in a form of marriage which accords them a status equal with a status already available to heterosexual couples.
If the federal parliament is unable to enact a law, then it is entirely legitimate for the states and territories to enact law. And it is worth highlighting some of the history around this. Until the mid-1960s, there was no commonwealth Marriage Act. Instead, marriage, from the time of federation onwards until the mid-1960s, was enacted under state law, and that residual right still rests with states and, consequently, with territories. It is not beyond power on the part of the states and territories to legislate for same-sex marriage.
That position is backed up by the legal opinion that I have released from Stephen Gageler and David Jackson who highlight that it is a very real possibility that states and territories can enact same-sex marriage laws and not encounter the constitutional bar of inconsistency with a commonwealth law. And I encourage members who have not read that opinion to do so, because it is an opinion written by two eminent QCs and it clarifies well the issues around inconsistency and to what extent it is feasible for states and territories to legislate in this space.
In summary, states and territories, in our view, can legislate in this space, because the commonwealth Marriage Act does not cover the field. It only relates and applies to heterosexual couples and, therefore, any scheme that applies to same-sex couples is outside of the field covered by the commonwealth Marriage Act. But I encourage members to read that opinion, because it does highlight in good detail why the government has come to the conclusion that it has.
I was interested too to hear Mr Hanson’s comments again about the couple close to him and his family and how they were seized of the opportunity to enter into a civil partnership. Of course, it is worth reflecting that less than a decade ago there was significant opposition to such schemes in this country and, indeed, internationally. These things were never taken as a given. Reform had to be argued. The fight had to be had to get those reforms so that people could take advantage of those legal rights.
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