The Government announced on 8 August 2017 that, if its plebiscite proposal was again rejected by the Senate, it would hold a voluntary survey on the question of whether same-sex couples should be allowed to marry. The survey is being conducted by the Australian Bureau of Statistics (ABS), with the final result to be known by 15 November 2017. The Marriage Law Survey (Additional Safeguards) Bill 2017 was introduced and passed both Houses on 13 September 2017. Once the Bill commences, the same-sex marriage survey process will be able to proceed with protections and safeguards that are normally afforded to the federal election process, in addition to provisions against vilification.
The Government has presented a Bill that intends to promote integrity in the process conducted by the ABS and to encourage proper and respectful public comments on the marriage law survey by ensuring they are authorised, attributable and accountable. Shadow Attorney-General Mark Dreyfus described the Bill as sending a message that the Parliament wants debate that is conducted with grace and kindness.
The Bill also intends to promote the expression of free and informed views by ‘enhancing transparency, accountability and traceability around communications’ of marriage law survey matters. The Bill aims to achieve this by requiring, under proposed section 6, authorisations to be included on all forms of communication of marriage law survey matter, and will empower the Electoral Commissioner with information-gathering powers in relation to the authorisation requirements (proposed section 7).
The new requirement for authorisation intends to restrict anonymous political speech in certain circumstances and enable survey participants to consider the credibility of the information they rely on to form their view. At this point, these authorisations are broader than those in the Electoral Act but will align with what Parliament intends to encompass by the recent amendments to that Act by the Electoral and Other Legislation Amendment Bill 2017. Authorisations will be required under the Marriage Law Survey (Additional Safeguards) Bill 2017 in circumstances where it has previously not been required for elections, such as bulk text messages.
Part 4 of the Bill contains offences for bribery and threats, and civil penalty provisions relating to vilification, interference, discrimination and misleading or deceptive publications. The Bill applies the Regulatory Powers (Standard Provisions) Act 2014 to the civil penalty provisions and provides that the Electoral Commissioner is authorised to enforce any civil penalty provision under proposed sections 6, 15, 16, and 17. However, proceedings related to the vilification prohibition in section 15 will require the consent of the Attorney-General. The maximum penalty for a person who vilifies, intimidates or threatens to cause harm to another because of the other’s view in relation to the marriage law survey question or religious conviction, sexual orientation, gender identity or intersex status is 60 penalty units ($12 600).
Under proposed section 21, the Federal Court is empowered, on application by the Electoral Commissioner or a notifying entity, to grant an injunction that restrains a person from refusing to do, or doing, a particular act or thing that contravenes the Act. This could include for example, an injunction restraining a carriage service provider from supplying a service that provides bulk voice calls or bulk text messages where those communications might constitute a contravention of the Act. The Bill also allows for an interim injunction (proposed subsection 21(6)) pending the determination of any application.
While conceding it is difficult to legislate for everything in this matter, the Australia Labor Party supported the Bill in its current form. Senator Penny Wong has said that the Bill cannot fix a flawed process but it is providing limited protections. Further, the Australian Greens have said that ’given the circumstances that we are in’ this Bill makes some improvements on what would otherwise be a more damaging process.
Senator Cory Bernardi asserted that this Bill is ’18C on steroids’, which is a reference to the provision in the Racial Discrimination Act 1975 that caused intense political debate when amendments to it were proposed. That provision makes it unlawful to offend, insult, humiliate or intimidate a person or group of people on the basis of their race, colour or national or ethnic origin. Senator Bernardi remains concerned that the Bill has been brought on in haste and is ‘redefining state and territory discrimination laws’. Senator Derryn Hinch broadly supported the Bill but questioned the Bill’s impact on freedom of speech and similarly, Senator Pauline Hanson expressed serious concerns that the Bill will ‘shut down’ debate.
The Bill passed both Chambers within hours of its introduction and is expected to be presented to the Governor-General for Royal Assent as a matter of urgency. It will commence the day after it receives Assent. The Act will be repealed either immediately after 15 November 2017 or, if statistical information is published before that day for the purposes of the Census and Statistics (Statistical Information) Direction 2017, the day the information is published.