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Premier Lara Giddings.
On August 4, 2012, Tasmania's Premier Lara Giddings vowed that the Australian state would legislate marriage equality this year regardless of the actions of the national government. The proposed law would be drafted to allow same-sex couples from across the country to marry in Tasmania.
As Misha Schubert reports in Australia's newsmagazine The Age, Premier Giddings made the pledge at a Labor Party conference in Hobart. She told the conference that she had obtained legal advice from the Solicitor General that there was no obstacle to adopting marriage legislation at a state level.
Australian Marriage Equality spokesman Alex Greenwich said marriage had been covered by state law until 1961, when the Commonwealth took on the powers under "concurrent law." In areas of law covered by such shared powers, he said it was possible for states to make their own laws on aspects not covered by federal laws.
Because federal marriage laws were amended by former Prime Minister John Howard in 2004 to define marriage as between a man and a woman, states may argue that since federal marriage law does not cover same-sex couples, states are free to legislate on same-sex marriage.
"It basically means regardless of what happens federally, same-sex couples will likely to able to marry on Australian soil, possibly as early as this year," Greenwich said.
Constitutional law expert, Professor George Williams agreed with the Premier's analysis. He said that if the Commonwealth refuses to make a law for one type of marriage--in this case same-sex marriage--that power falls to the individual states.
He added, however, that the Australian High Court might have to decide questions arising from national and state laws in conflict.
In announcing her plans, Premier Giddings said, "Labor has a proud history of tackling discrimination and introducing important social reform."She added, "I expect the rest of the country will be watching closely as we work through this process. It is my hope that the Commonwealth Parliament will also act on this issue in the not too distant future."
The Tasmanian Labor Party, which rules in coalition with the Green Party, has voted three times to endorse the principle of gay marriage. Expressing frustration at the fact a private member's bill on gay marriage is widely expected to fail in the federal parliament when put to a vote later this year, Premier Giddings said "the time has come to act decisively on this issue."
She observed that "Eleven countries now recognise same sex marriage; including Argentina, Belgium, Canada, Denmark, Iceland, Netherlands, Norway, Portugal, Spain, South Africa and Sweden. Likewise, jurisdictions in Mexico and the United States, have introduced state-based laws, so there is precedent for the Tasmanian Labor Party's position."
She added, "There will always be excuses, arguments and questions of timing when moving on difficult and controversial issues. But just as we have responded to other forms of discrimination throughout history, there comes a time when no amount of excuses should stand in the way of doing what is right."
"If Parliaments of the past did not have the courage to respond to changing community values," Giddings said, "then Tasmania would still be a state where homosexuality is illegal, where women don't have the vote and no apology has been made to the Aboriginal stolen generations. Labor is proud to be taking a stand today to say that discrimination on the basis of sexuality should end."
Michael Heath observes in Bloomberg.com that Giddings' action intensifies pressure on Prime Minister Julia Gillard, who opposes same-sex marriage. She has agreed to allow a "conscience vote" on the issue in the national parliament, but has resisted pleas to "whip" the caucus.
It is believed that because the opposition National Party will whip its MPs in opposition to same-sex marriage, the private member's bill will fail.
Rodney Croome, a spokesman for the Tasmanian Gay and Lesbian Rights Group, said in a statement that Giddings' pledge is a historic moment for Tasmania, which was the last Australian state or territory to decriminalize consensual homosexual acts in 1997. "Tasmania will be more socially inclusive, we will build stronger relationships and families, our economy will benefit and we will dispel our lingering reputation for intolerance forever," he said.
Although it is likely that Giddings' marriage equality legislation will pass easily in the lower chamber of the state's bicameral legislature, there is less certainty that it will prevail in the upper chamber.
In the video below, the Australian Broadcasting Company reports on Tasmania's Labor Conference.
In the video below, Premier Giddings appears on a popular morning television program to explain her plans.
Tasmanians United for Marriage Equality has released a video discussing the benefits of marriage equality in Tasmania.
As the marriage equality video released by Australia GetUp insists, "It's Time."