O'Farrell Toes The Line On Gay Marriage


The Australian marriage equality debate will be remembered as a litany of ever weaker excuses for inaction. NSW Premier Barry O’Farrell has given us one of the weakest of all: "national consistency".

O’Farrell, an in-principle supporter of marriage equality, has said he will not support a NSW Same-Sex Marriage Bill because, he doesn't want "to see a return to the patchwork quilt of marriage laws that existed in the 1950s”.

He believes “true equality” for all Australian couples can only be delivered by the federal government.

He’s right that marriage equality at a national level will cover all couples, but the federal government is at best indifferent to progressing the reform, with some key government figures deeply antagonistic. In this situation the states have a moral responsibility to take action instead.

To put “national consistency” and “true equality” ahead of the inclusion, protection and dignity that comes with allowing same-sex couples to marry verges on callous. It traps same-sex couples in a cul-de-sac of non-recognition built in the name of their best interest.

It’s tantamount to saying “not us, not here, not now”. It also shows a profound misunderstanding of the purpose and history of Australian federalism.

One of the benefits of federalism is the decentralisation of power. If an important reform is blocked at one level it can be progressed at another. This is why the framers of the constitution gave the states and the Commonwealth a wide range of shared powers, including the power to make laws for marriage.

The history of laws governing personal relationships illustrates the role of federalism in progressing reform.

Heterosexual marriages were solemnised under state laws until the federal Marriage Act in 1961. Heterosexual and same-sex de facto relationships were recognised first at a state level before being recognised in federal law. Civil partnerships also spread state-by-state until their recognition in federal law just a few years ago.

I don’t recall “national consistency” or “true equality” being deployed as excuses for opposing the states’ legal recognition of these personal relationships. Why should the recognition of same-sex marriages be any different?

In the cases I’ve cited, reform at a state level helped legitimise reform at a national level, not just culturally but also constitutionally. For example, in the case of de facto marriages the power of the Commonwealth to legislate arose from referrals of power from the states.

Given there is a question mark over the Commonwealth’s constitutional capacity to legislate for same-sex marriages, a referral from the states would also be useful to confirm its power in this area.

As well as national consistency in marriage law, O’Farrell says he is concerned about consistency in divorce law. He fears same-sex couples married under state law won’t be able to access the federal Family Court when settling disputes over property and custody.

This ignores the fact that almost all couples married at a state level will be considered de factos in federal law and easily able to access the Family Court.

The few who don’t live together can access the Supreme Court just like all same-sex couples did before same-sex de facto relationships were recognised nationally in 2008.

As for the children of divorcing parents, matters related to them are resolved in the Family Court regardless of their parent’s legal status.

The real test for state same-sex marriage laws is not to be found in the detail of the law or the rhetoric of law-makers. It is to be found in how these laws are seen by the people who are most directly affected by them.

When my parents married in 1959, they neither knew nor cared that it was under a state law, nor did it matter to them how the details of this state law differed from others.

So today, most same-sex couples do not care who made the law under which they marry or how that law is framed. All they care about is that they can marry.

This is confirmed by the fact that almost 1000 couples from across Australia have indicated to Australian Marriage Equality that they intend to marry under the ACT’s same-sex marriage law as soon as they can.

The marriage equality debate has reached the stage where it not enough for politicians like Barry O’Farrell to say they support reform without doing all they can to achieve it.

Australia is virtually alone in the developed, English-speaking world in not allowing same-sex couples to marry.

Ageing couples and couples with ageing parents are growing concerned the reform will come too late for them and their families. Marriage equality is too important and urgent for platitudes.

If O’Farrell wants the supporters of marriage equality to believe he is genuinely concerned about “national consistency” and “true equality” we need to see him actively progressing reform among his federal Liberal colleagues.

In particular he needs to show he is working with his Liberal colleagues to achieve a federal Coalition conscience vote of the kind he has already granted to NSW state Coalition MPs.

In the meantime, O’Farrell will need to do much more than offer up the weak excuses he has given for not taking action in his own domain.

Launched in 2004, New Matilda is one of Australia's oldest online independent publications. It's focus is on investigative journalism and analysis, with occasional smart arsery thrown in for reasons of sanity. New Matilda is owned and edited by Walkley Award and Human Rights Award winning journalist Chris Graham.