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Why are you hiding the advice Lara?

By Greg Donnelly - posted Monday, 10 September 2012

To make a claim that a person's behaviour is contemptuous is a pretty strong accusation. If that person is the leader of a political party and the premier of a state, some may argue the claim is worthy of closer consideration.

I deliberately decided not to respond to an issue last week when it arose. Instead, I thought that I should check myself and bite my tongue. Perhaps I was overreacting. Perhaps, because of my own strong views on the issue, I was allowing my emotions to cloud my judgement. And that is what I did; I put my pen down and cooled my heels.

However, as I read and re-read Hansard it became even clearer to me that contemptuous was the appropriate word to describe the behaviour.


The other reason I paused was that having visited Tasmania on a number of occasions over the years, I appreciate that the citizens of the Apple Isle do not take kindly to mainlanders giving them a lecture or telling them what they should think or do. For the record, I am originally from Western Australia, so I know why one should be cautious about accepting everything said by the "wise men and women from the east."

Specifically, my view about contemptuous behaviour relates to the Tasmanian Premier, Lara Giddings, and what she said in the House of Assembly last Thursday in the debate on the Same-Sex Marriage Bill.

Those interested in the matter should have a look at the Hansard. May I say it struck me as a rather perfunctory debate. The second reading of the Bill commenced at 2:43pm. With barely four hours of debate on the clock the Bill was put and passed at 6:53pm, Ayes 13, Noes 11. Interestingly, of the 24 MPs who voted on the Bill only 14 participated in the debate.

The Bill, co-sponsored with The Greens, was introduced by the Premier. In her second reading speech she spoke proudly about standing before the House of Assembly with this "important and ground-breaking piece of legislation". She spoke, with apparent pride, about her state moving from being seen as a laggard on the issue of rights for same-sex attracted people, to now being a leader. There seems to be no doubt that she sincerely holds these views. As she noted, this is "...the first time in an Australian jurisdiction an act will legislate for the same-sex marriage of two adults."

Further on in her contribution she spent all of three paragraphs commenting on some of the possible constitutional issues arising from bringing this Bill before the Parliament of Tasmania. The Premier acknowledged the "likely controversy" surrounding the constitutional validity of the Bill. She acknowledged that the legislation, if passed, could in due course face a High Court challenge. Then the Premier said:

"While the government will not be releasing the advice we have received from the Solicitor-General on this matter, there is plenty of advice on the public record that considers the issue of whether state-based same-sex marriage legislation would be constitutionally valid."


To me, the fact that the Premier said she will not be releasing the Solicitor-General's advice on the matter is quite amazing. Indeed, as indicated above, I find it contemptuous. She acknowledges that advice on this important "ground-breaking" matter has been obtained from the Solicitor-General. I presume she, Nick McKim the co-sponsor of the Bill, and, I would guess, the Attorney-General have seen this advice but no other legislator in the Parliament, let alone any member of the public, will get a chance to look at it. Indeed, except for those three MPs, and who knows maybe a handful of others, all the members of the House of Assembly were pressed into debating and voting on a significant piece of legislation, without being able to look at, let alone study and comment on the Solicitor-General's advice. Indeed the Premier deliberately and consciously denied them that opportunity. I would argue that their capacity as legislators to consider one of the most important legal questions associated with this legislation was deeply compromised by the Premier's actions.

Furthermore, what type of response is it to say "...there is plenty of advice on the public record ...". First, that is not actually true. There are some so-called opinions floating around; I have seen one that goes back to around 2006. However, with respect to the authors of those opinions or academic articles, so what? Furthermore, the legislators in Tasmania who are duly elected, and having taken their oath of office to preside over the making of laws for the good governance of the citizens of Tasmania, are entitled to expect more from the Premier than being told to go do a Google search on this issue.

Of course, the Bill has to pass the Legislative Council if it is to become law. It is expected that that debate will get underway in the near future. The Legislative Council is of course a house of review. It is a place where Bills are looked at closely and examined in detail. Indeed, that is what upper houses are supposed to do. Upper houses, in deliberating over legislation, set out to examine the full impact and implications of proposed new laws. Denying members of the Tasmanian Legislative Council the Solicitor-General's advice on the Same-Sex Marriage Bill only further confirms the Premier is treating the parliamentary process with contempt. I have been informed that requests by Legislative Council members for a copy of the advice are being met with a no from the Premier.

Why all the secrecy? Nobody, except for that very small number of privileged politicians and bureaucrats in Tasmania actually knows. One hopes that over the next week or so the Solicitor-General's advice is made available to all Tasmanians.

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About the Author

Greg Donnelly is a Labor Party member of the New South Wales Legislative Council. He has been in the Legislative Council since February 2005. He is currently the Deputy Opposition Whip in the Legislative Council. He is the Chair of General Purpose Standing Committee No. 2 and Deputy Chair of the Standing Committee on Social Issues. He is also a member of the Privileges Committee, the Committee on Children and Young People, the Select Committee on the Legislative Council Committee System and the Select Committee on Human Trafficking.

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