2015-02-27
Lynn MacLaren, WA MP
Popular opinion about marriage equality has been overwhelmingly in favour for years. Noting the polls and perhaps reflecting on their life experiences, politicians of all hues have admitted that achieving marriage equality in Australia is inevitable.
However, action at a federal level has stalled with the Prime Minister's refusal to allow a conscience vote. The Federal Marriage Act continues to limit the definition of marriage — and in effect, the definition of love — to being between a man and a woman.
Unless momentum rises at a Federal level, the best hope in the near-term of ending discrimination based on sexuality may well lie with the States. A process currently underway in the United States, where 37 states now have marriage equality.
Western Australia is currently the focus of that approach, thanks to the opportunity we have here in WA to learn from the experiences of other jurisdictions that went before us. Other states too are poised to take up the challenge again should current federal initiatives fail.
The ACT passed a Marriage Equality Bill in October 2013, only to have it immediately challenged by the Commonwealth and later annulled in a High Court decision last year. The Tasmanians also passed a Marriage Equality Bill through Tasmania's lower house but it was defeated in Tasmania's upper house in 2012 so never faced a test of its constitutionality.
The High Court ruled the ACT's laws were inconsistent with the Federal Marriage Act and therefore unconstitutional.
This ruling was based on the assumption that a State Parliament has no useful role to play in relation to marriage because the Federal Marriage Act provides an exhaustive statement with respect to creation and recognition of the legal status of marriage in Australia.
Yet, laws about marriage exist at both a State and a Federal level. In Western Australia, there are no less than nine Acts which refer to marriage matters, most significantly, the Births, Deaths and Marriages Registration Act 1998 and the Family Court Act 1997.
With the help of NSW constitutional lawyer Professor George Williams and others, I've developed a Same Sex Marriage Bill 2013 which avoids the problems found in previous state bills.
I am confident that our Same Sex Marriage Bill, which I introduced in the WA upper house last year, will withstand a High Court challenge because, unlike the ACT's Marriage Equality law, our Bill does not conflict with the Federal Marriage Act.
The explanation is in part in the name: our Bill would expand the definition of marriage in State laws to include same sex couples rather than redefine marriage as it listed in the Federal Act.
If passed — and admittedly there is still some way to go — the WA law will provide diversity and inclusion to thousands of Western Australians by allowing same sex couples to marry. Its passage would also play a role in influencing the Federal debate.
I have called on the WA Liberal Parliamentary Party to allow a free vote for its MPs, allowing them to vote with their conscience. During the last state election campaign, Premier Colin Barnett hinted he supported such a vote but we have heard little since. Party policies of WA Labor and the Nationals are supportive of the policy and permit conscience voting.
While marriage equality (inclusive of same-sex, queer, trans, bisexual and intersex couples) in Australia can only be achieved at the Federal level, allowing same sex marriage in Western Australia would give Western Australian same sex couples marriage rights and send a very strong message to all of the community about equality and acceptance.
It would deliver immediate benefits to people's lives, including removing stigma with subsequent benefits to health and wellbeing of gay and lesbian people. It would also provide greater security and stability for same sex couples and their families.
Contrary to the popular criticism, expanding the definition of marriage to include same sex couples will, in my opinion, strengthen marriage as an institution by highlighting that it is commitment, not gender that is important to a marriage and makes it work.
Same sex marriage laws could even see millions of dollars flow to small businesses in the wedding industry and without doubt it would boost WA's national and global reputation by showing it truly values, recognises and respects the contribution of all Western Australians, whether LGBTIQ or otherwise.
It is something of which WA could be truly proud and I look forward to making it happen this year.