Game changing opinion: A step closer to marriage equality in Australia

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A “game changing” expert legal opinion has found that a state-based same-sex marriage law proposed in Tasmania in Australia is constitutionally valid, taking us a step closer to Australian marriage equality.

The advice comes from leading High Court barrister and constitutional expert, Bret Walker SC (pictured above), who worked together with constitutional experts Chris Young and Perry Herzfeld to draft a legal opinion following a comprehensive review and analysis of the issues involved.

Human Rights Law Centre’s director of advocacy and strategic litigation, Anna Brown, who briefed Mr Walker to prepare a legal opinion on the Tasmanian Bill on behalf of Australian Marriage Equality, said there should now be nothing to prevent the achievement of marriage equality in Australian states.

Ms Brown clarified: “The advice confirms that the Tasmanian Parliament and other state parliaments are able to legislate to allow same-sex marriages. This is fantastic news that paves the way to achieving marriage equality in Australia very soon.

“While many legal commentators have expressed views on this topic, none of the calibre and standing of Mr Walker SC and his assisting counsel have engaged in such a thorough review and analysis of the history and development of marriage under English and Australian law.”

Australian Marriage Equality national director, Rodney Croome, welcomed the advice. Mr Croome said: “Mr Walker’s vindication of the constitutionality of state same-sex marriage laws is a game changer in the Australian marriage equality debate because it confirms that the states can act in the absence of action from the federal government.”

Mr Croome is urging the Upper House to support a motion from Ruth Forrest MLC to revisit the Same-Sex Marriage Bill in the light of this new information.

“Those Tasmanian Upper House members who expressed legitimate concerns about the constitutional validity of the Same-Sex Marriage Bill can rest assured their concerns have been addressed and the Bill is constitutionally safe,” said Mr Croome.

Ms Forrest has a motion before the Tasmanian Upper House to re-introduce the Same-Sex Marriage Bill which was narrowly defeated in the Upper House last year.

The advice follows the recent release of a report from the Tasmanian Law Reform Institute which found that states can legislate for same-sex marriages and would have a strong case should there be a High Court challenge against such laws.

The legal opinion prepared by Mr Bret Walker SC also confirms the constitutional power of the Federal Parliament to pass laws for same-sex marriages.

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