In the news lately, you may have heard about the legislation being introduced in Tasmania to legalise same sex marriage. It’s causing quite a stir actually! There are many advocates in the community that are either for or against same sex marriage, and although reading their arguments is interesting enough, what I find really fascinating is Tasmania’s history with same sex rights, and the laws that might just make legalisation possible in this little island state.
The history of same sex equality in Tasmania has a quite dark and embarrassing past. You see, up until 1997, being in a male-male or female-female relationship was criminalized, with 20 years imprisonment being handed down to ‘offenders’. I was 3 years old when this law was still in place. It shocks me, that at same stage in my life (although I did not understand the laws at all at the age of 3), being in a same sex relationship incurred a punishment… a punishment that was more severe than what someone charged with rape or robbery would get. Tasmania was well behind the rest of Australia. It can be even traced back to old records of a Tasmanian politician stating that homosexual people were criminals and should be “tracked down and wiped out, like murderers...” Was this guy serious!?
It was in 1988 that one of the first attempts was made to raise awareness of the harsh laws in place, but this attempt was quickly shut down. A stall was established in Salamanca Markets, with a petition in favour of gay law reform. However, it did not take long for the Hobart City Council to shut the stall down. When volunteers resisted the Council’s decisions, the police were brought in and over the next 2 months, a whopping 130 people were arrested. What’s particularly amazing about this defiance to authority in our tiny home state is that it remains to be Australia’s biggest gay rights civil disobedience!
It was through conversations with the public, awareness events and even law suits at national and international levels that eventually turned the tables on the discriminatory laws in ‘97. What I find amazing is that Tasmania went from having the worst laws pre-‘97, to now being the first state that may legalise same sex marriage.
And now onto the boring bits – how legalising same sex marriage is possible. To understand how the Tasmanian Government can defy what the Australian Government has already made a law upon, we have to talk about law making processes (I’m sorry! Just bear with me)
So basically in Australia, we have 3 levels of government; local, state and national. All these 3 levels of government can make laws, but then what would happen if just say, the state makes a law like: ‘All Victorians will receive free cake at the expense of the state at the completion of high school’, but the national government has a law that says ‘NO individual will receive free cake at the expense of the government at the completion of high school’. Now these are pretty silly, made up laws, but it’s important to have a plan if one law contradicts another. To combat this problem, there is a law in place that explains that in the case of this contradiction, the national government law stays in place, and the state law becomes invalid. At this stage, I want to again apologize for the boring law stuff, but it will help in the next paragraph!
So as we know it, the national government law states that marriage is ‘the union of a man and a woman to the exclusion of all others, voluntarily entered into for life’. Now keep in mind that two laws cannot be inconsistent. With the national government stating ‘marriage is between a man and a woman’ this means that they can only legislate upon heterosexual marriages. A state government can legislate upon homosexual marriages, as it is not mentioned in the national law! To relate it back to our cake laws, it’s like a state government saying ‘Okay, we can’t have free cake at the end of high school – but we can have free pie because the national government only mentioned cake’.
That is basically how it is even possible for the Tasmanian Government to legislate upon same sex marriage. Although, whether the legislation passes, is another question. It is now up to Tasmanian politicians to vote either in favour, or against, same sex marriage.
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