En Passant

The Tasmanian Labor Party at its conference on the weekend passed a motion of support for same sex marriage. Lara Giddings, Tasmania’s Labor Premier, announced that her Government would legalise gay marriage and that this could happen as soon as the end of the year.

Here is part of what she said:

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.

Giddings appealed to Labor’s history of reform. She said that ‘Labor [had] a proud history of tackling discrimination and introducing important social reforms.’

The obvious question is, if Labor in Tasmania can do it, why not Labor elsewhere?  Labor is in power in South Australia and rules with the support of the Greens in the Australian Capital Territory. Oh, and if you hadn’t noticed, Labor is in power nationally.

But the Gillard Labor Government shamefully will allow its members a conscience vote on equal love Bills currently before the Federal Parliament.  The Opposition hasn’t even done that. It will vote as one (with perhaps a few waverers) against same sex marriage.The combination of Labor homophobes and Coalition opportunists will defeat these backbench same sex marriage Bills.

In the Australian Capital Territory, the ALP, cynically in my view with an eye to the October election, announced last week it would introduce legislation to improve on the current civil union provisions. Equal Love Canberra described the move as a consolation prize.

It is based on acceptance of the John Howard and Gillard Labor supported Commonwealth Marriage Act which defines marriage as being between a man and a woman. It was also an attempt by local Labor to buy off same sex marriage supporters and yet not alienate and embarrass Gillard Labor by going ‘too far’.

In light of the move by the Tasmanian ALP, it is clear the ACT Labor Government’s civil unions proposals don’t go far enough. It is now time for ACT Labor to legislate for equal love. Same sex marriage must now be on ACT Labor’s immediate legislative agenda. 

There will be some discussion about the constitutionality of the Tasmanian move. Certainly any legislation is likely to be challenged in the High Court.

Advice to the Giddings’ government in Tasmania is along the lines that the States and Commonwealth have concurrent powers over marriage. If the Commonwealth covers the field then a state cannot legislate.

Somewhat ironically, the argument appears to be, if I have understood it, that the Commonwealth has restricted itself to ‘straight’ marriage with its definition of marriage being between a man and a woman and thereby left the field open to the States to address same sex marriage.

This is what Tasmania is doing. Such a Bill will pass the Lower House, but it is unclear what will happen in the Upper House since 13 of the 15 members are Independents.

If a same sex marriage Bill does pass in Tasmania it will be challenged in the High Court and the question will become what marriage is under the Constitution.

What was regarded as marriage in 1901 isn’t determinative of the matter. The Constitution is a living document and the judges of the High Court could well adopt a more modern and up to date view.

Certainly too the Commonwealth cannot define what marriage is for constitutional purposes. This self referencing would enable the Commonwealth to define all its powers very widely. It is up to the High Court to determine what the marriage power in the Constitution covers.

As for the ACT, its legislative powers derive from section 122 of the Constitution which gives the Commonwealth the power to make laws with respect to the Territory.  Under the ACT Self-Government Act ‘the Assembly has power to make laws for the peace, order and good government of the Territory.’

Nothing constitutionally or legislatively currently prevents the local Labor Party from enacting same sex marriage laws if it had the will.

Well, nothing other than the Federal Government overturning any ACT law giving marriage equality to Canberrans.  They can only do this by passing a law through the House and Senate overriding any ACT same sex marriage legislation.

Once the ACT equal love legislation is passed (Labor and the Greens have the numbers currently) I doubt the Federal Parliament would move, or move successfully, against same sex marriage in the Territory, especially if it were already entrenched in Tasmania. 

The local ALP wants to avoid that position altogether and doesn’t want to embarrass Julia Gillard. That is why it is stuck in the past of civil unions and civil partnerships rather than equal marriage rights and equal love.

With Tasmania set to introduce a Same Sex Marriage Bill as early as the end of the year, what is now preventing ACT Labor from giving effect to its 2011 policy? That policy says (and a waffle alert warning!) the Party will:

3. Legislate for two people regardless of gender to enter into a legally recognised union.

4. Acknowledge the principle of recognising committed relationships between adults, and reaffirm support for legal reforms that recognise the rights of couples in mutually interdependent relationships to have their relationship recognized socially, legally and financially.

Now is the time to end the waffle and prevarication and for ACT Labor to join with the ACT Greens before the election in October and legislate, like Tasmania will do, for same sex marriage.

Not doing anything is not an option. If Tasmania does pass same sex marriage laws then Canberrans could marry in Tasmania and on return to the ACT expect to be treated in the same manner as all other married citizens of the ACT.

The only thing that prevents the Gallagher Government and the ACT Greens from legislating for same sax marriage is local Labor’s fear of embarrassing ‘left winger’ Julia Gillard. She owes her position as Prime Minister in part to Shop Distributive and Allied Employees Union leader and fundamentalist homophobe Joe de Bruyn and other anti-gay marriage bigots.

The choice for the ACT ALP is slight embarrassment for Gillard (Tasmania’s move will provide enough already) or equity for same sex couples.

ACT Labor, it is time to choose between fake pragmatism and principle.

Let’s not get left behind Tasmania. Let’s introduce equality in our marriage laws and join with the Apple Isle in the fight across Australia for equality.

Two jurisdictions, and 3 if South Australia’s Labor government also decides to support equality, and the momentum is with equal love. It becomes, and is, inevitable.

The campaigns and demonstrations across Australia over the last few years have put the issue of equal love firmly on the agenda.

Instead of being happy with winning a minor medal, it’s time for the ACT to go for same sex marriage gold, just as Tasmania is doing. ACT Labor and ACT Greens, the time has come to introduce same sex marriage laws in the Territory. Legislate for equality and equal love now.

As part of demonstrations across Australia the next rally for marriage equality in Canberra is at 1 pm on Saturday 11 August in Petrie Plaza near the merry-go-round. And after that come to:

RIOTS & RESISTANCE: THE HISTORY OF THE STRUGGLE FOR SEXUAL LIBERATION

After the Rally, 2.30pm
The Phoenix Pub, in the Bus interchange
Socialist Alternative
Contact us at canberra@sa.org.au, or go to www.sa.org.au

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