THE first attempt nationally at pioneering state-based gay marriage has been defeated after doubts grew over its future legality.
Already struggling for numbers in the Tasmanian Parliament's upper house, the same-sex marriage bill was lost yesterday after key undeclared MPs raised constitutional doubts. Up to eight of the 15 MLCs signalled their intention to vote against the bill, though a final vote was delayed last night.
A rare intervention from a former state chief justice, Bill Cox, capped a raft of legal opinions marshalled by the bill's opponents. Mr Cox told MPs it was clear the Commonwealth had primacy on marriage law, and any inconsistent state legislation would be struck down by the High Court.
He said Premier Lara Giddings' backing for the bill appeared to be based on the ''specious'' legal argument that the Commonwealth had left a gap on same-sex marriage that could be filled by the state.
Instead he backed University of Sydney Professor Anne Twomey's view that a Tasmanian law permitting same-sex marriage would be unlikely to have legal effect in the Commonwealth, or any other state.
''Any such legislation would create a minefield in respect of rights, and make Tasmania a legal laughing stock,'' Mr Cox said. ''It is foolish to enact legislation which has a strong chance of being declared invalid.''
Among a handful of previously undeclared independent legislative councillors, most cited doubts over the bill's constitutionality.
They included Hobart independent Jim Wilkinson, who said: ''I favour the view of Bill Cox. Bill Cox has judged more appeals than a Pakistani cricket umpire. You know how considered he is before he comes to a decision.'' Mr Wilkinson said he believed same-sex law would continue to be argued, ''but I believe it will come back in the federal arena. In my mind that's where it should be.''
Marriage Equality campaigner Rodney Croome said it was clear that the majority of upper house members supported same-sex marriage.
''The fact that almost all the MLCs against this bill cited constitutional issues as the problem shows that we have won the in-principle argument for marriage equality,'' he said.
Devonport MP Mike Gaffney said he was not concerned that the bill might be legally challenged.
''If the possibility of an invalid bill stopped us, very little reform would take place,'' he said. ''If we vote this bill down … the issue will not go away. Most importantly, the Australian community is alive to the issue of marriage equality.''