Expert Legal Opinion Gives Green Light for NSW Same-Sex Marriage

The Human Rights Law Centre has made public the legal advice it obtained from Mr Bret Walker SC and Perry Herzfeld, on behalf of Australian Marriage Equality, that confirms that the NSW Same-Sex Marriage Bill would be constitutionally valid.

The advice follows reports that the Bill will be introduced and debated in the NSW Upper House on October 31st.

The HRLC’s Director of Advocacy and Strategic Litigation, Anna Brown, said the advice gave the ‘green light’ for MPs to embrace same-sex marriage in NSW.

“Members of the NSW parliament can be confident in their authority to pursue same-sex marriage in their state. There is nothing in the Australian Constitution preventing the States taking a leadership role in this area,” said Ms Brown.

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.

AME NSW co-convener, Dr Shirleene Robinson, welcomed the advice.

"The advice we have from Mr Bret Walker SC is that our Bill is constitutionally sound, assuaging any concerns NSW MPs may have about their power to pass such it."

"After seeing the joy and happiness that accompanied the passage of reform in the ACT yesterday, it's great that NSW is also moving ahead."

Acknowledging that concerns had been raised that the “same-sex” category proposed in the NSW laws may exclude some intersex, transgender and gender diverse people, Ms Brown said that it would be open to the NSW Parliament to legislate for a third category of marriage such as “gender diverse” marriage, so that all LGBTI couples could be accommodated.

“Whilst there is more work to do to better recognise intersex, transgender and gender diverse people under the law, the proposed legislation in NSW would clearly be a great step forward for many couples and would build momentum for the realisation of marriage equality across Australia,” said Ms Brown.

Further information/resources

A copy of the legal opinion on the NSW Same-Sex Marriage Bill 2012
A copy of the comprehensive legal opinion on the Tasmanian Same-Sex Marriage Bill 2012
Summaries of the legal opinion: 1 page version | 3 page version
Same-Sex Marriage Bill 2012 (NSW)

For further details or comments, please contact:

Anna Brown, Director of Advocacy & Strategic Litigation, HRLC, 0422 235 522
Shirleene Robinson, Co-Convener, AME NSW, 0412 308 174

Further media statements

A statement from Australian Marriage Equality
A statement from the NSW Marriage Equality