Tasmania may legalize gay marriage — by exploiting loophole in Australia's federal ban against it

Lara Giddings

In Australia, marriage used to be covered by state law, until 1961, when the commonwealth took on the powers under "concurrent law," according to Marriage Equality spokesman Alex Greenwich, who said in areas of law covered by such shared powers, it was possible for states to make their own laws on aspects not covered by federal law.

Because federal marriage laws were amended by former Prime Minister John Howard in 2004 to define marriage as between a man and a woman, it was possible for states to argue that the federal marriage law did not cover same-sex couples - and they were free to legislate for them.

     "It basically means regardless of what happens federally, same sex couples will likely to able to marry on Australian soil, possibly as early as this year," he said.

     In a statement to the Tasmanian Gay and Lesbian Rights Group, constitutional law expert, Professor George Williams, said the power to make marriage laws is shared by the Commonwealth and the states.

He told them if the Commonwealth refuses to make a law for one type of marriage - in this case same-sex marriage - that power falls to the states.

     A private members bill on gay marriage is widely expected to fail in the federal parliament when put to a vote later this year.

Tasmania Premier Lara Giddings today vowed Labor would legislate it as early as this year.