Offensive and misleading material
4.1 One of the primary concerns raised by witnesses and submitters in this
inquiry has been the harm to the psychological and emotional wellbeing of
members of the lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ)
community through the distribution of offensive and denigrating materials
during the Australian Marriage Law Postal Survey (postal survey).
In its September 2015 report on an inquiry into the Government's then
proposed plebiscite on marriage equality, the Legal and Constitutional Affairs
References Committee found that 'the matter of marriage is not one which should
be decided by popular vote'.
A number of submissions to the 2015 inquiry 'expressed concern about the impact
of a public vote on the [LGBTIQ] community' with one submitter stating 'that a
public vote is likely to present significant risks to the psychological health
and wellbeing of those most affected'.
Regrettably, many of the fears of offensive and misleading behaviour raised
in the 2015 report became a feature of the recent postal survey. The committee
has received a considerable number of submissions that have provided examples
of offensive material being distributed on social media, on posters and in the
mail. The committee has chosen to publish a small representative selection of
this material on its website.
In its interim submission to the committee in August 2017, the NSW Gay
and Lesbian Rights Lobby (NSWGLRL) provided a catalogue of material which had
already been disseminated prior to the survey being mailed out. NSWGLRL noted
that this material:
has a significant impact on the mental health of so many
LGBTIQ Australians. Young LGBTIQ people are at a six
times greater risk of suicide, and this material which perpetuates hateful and
offensive comments is not likely to improve this situation.
of suicide among young trans and intersex people are even higher, with young trans
people being 35% more likely to attempt suicide. In addition, young trans
people are more likely than not to have self-harmed with nearly 80 percent
having done so compared to just 11 percent of non-trans adolescents.
NSWGLRL observed that, at that time, it had received a significantly
increased number of offensive material since the announcement of the postal
Ms Sophie Cleary provided the committee with a copy of the offensive
pamphlet that her family received in their mailbox and, in an accompanying
letter, described the pamphlet as 'a disappointing and heartbreaking
circulation of harmful material'.
Ms Cleary elaborated:
I felt that leaflet was based in extremely loose facts (which
are unfounded to my knowledge). I think it has the potential to be extremely
offensive and harmful to the LGBTQI community. I worry for the safety and sense
of wellbeing of that community and their children and families at large. I
think we have a duty of care to call out unnecessary and hateful behaviour
directed at any marginalised community. I had assumed that the government would
also maintain a responsibility to protect the vulnerable amongst us also.
Ms Trinah De Leon described the effect that the offensive material is
having on her family:
This whole notion of the postal survey hurts me and my family
to the core of our being. To make matters worse and pour salt on our wounds, we
see all of these negative/insulting "no" campaigns flashed around and
distributed, not only to us, but to our friends/family and the community at
large who are being misled and just perpetuates the injustice and
discrimination we are facing.
One submitter described the intimidating behaviour engaged in by some
members of the community:
Our Dutton Park (inner city Brisbane) street corner has grown
quite a collection of rainbow flags in support of the marriage equality
plebiscite. This has generally received positive comments from passers-by and
neighbours. Last night someone spray painted black swastikas on our flags, our
fences, a garage door and my business sign.
A 42-year old transgender man from rural Queensland submitted his experiences
of the postal survey to the committee:
After the Survey was announced, my world becomes hell. It was
the hate and vitriol of the 1990s that I experienced, but this time our Prime
Minister gave this hatred a name—respectful debate.
Another submitter described the broader effect of the postal survey on
The Postal survey to a gay and lesbian person was never just
about SSM [same-sex marriage], it seemed like it was a survey on whether gay
and lesbian people were good enough for the Australian people. Having the whole
Country vote on this was a horrible feeling and having them judge you, brought
up all sorts of emotions from my youth.
A study of nearly 10 000 LGBTIQ Australians, families and friends by the
Australia Institute and the National LGBTI Health Alliance, found that more
than 90 per cent of respondents 'reported the postal vote had a negative
impact on them to some degree'.
The most shocking finding of the study was that LGBTIQ
respondents said that experiences of verbal and physical assaults more than
doubled in the three months following the announcement of the postal survey
compared with the prior six months.
They reported an increase of more than a third in depression,
anxiety and stress during the same period.
Almost 80% of LGBTIQ people and almost 60% of allies said
they found the marriage equality debate considerably or extremely stressful.
In its submission to the committee, SHINE SA explained the results of a
survey it undertook after the postal survey had concluded and the result had
been announced. The SHINE SA survey found that 74 per cent of respondents to
that survey had experienced negative impacts as a result of the postal survey.
Of those experiencing a negative impact, 23 per cent indicated that the
severity was severe.
just.equal found similar results in its own survey of the LGBTIQ
Two-thirds of participants (66.3%) reported that their
experience of the postal survey period was worse than they expected.
Over three-quarters (78.6%) reported that they were adversely
impacted by the postal survey in a way that would not have otherwise occurred.
Over half (55.7%) felt that the process would not be
worthwhile, even if the 'Yes' vote prevailed.
Importantly, the committee has heard that the trauma experienced by
members of the LGBTIQ community has continued, even after the conclusion of the
postal survey and the passage of marriage equality legislation. Divisions
exposed during the postal survey process have left some in the LGBTIQ community
mistrustful and isolated within their own neighbourhoods and communities.
In its submission, Rainbow Families NSW shared the experience of Kate and her
We received two personalised letters from our neighbours
expressing their traditional views on marriage and their negative thoughts
about our family and the wider LGBTIQ community. We received the first letter
on a Friday, the next the following day. The letters spoke about "militant
lesbians storming our churches and mosques demanding to get married", that
we have equal rights as evidenced by "being able to adopt and raise a
child" (our son is not adopted). That the local community "tolerates
you" and that "the silent majority will succeed".
We cried for that whole weekend and were scared to check our
letter box on the Sunday—we believed we were going to receive more hurtful
letters from different neighbours. We started to think about moving out of the
area? But unfortunately we can't afford to move. We stopped going to the local
parks, we avoided going to the local supermarket. We became hermits and didn't
want to be seen in the local community. My heart rate went up everytime I opened the front door and went out the front for fear of
seeing the neighbours. We tried to shield our 2 year old son from our
pain - but he could see it. One night he said "I'm scared of the
neighbours". This was so upsetting to hear. Neighbours who we had been
friendly with started being less friendly - or were we just being paranoid? My
partner and I both took sick days off from work and we also left our home and
area for safer more accepting areas to try and get away from it all. The result
of the survey gave us no joy. We were relieved with the result but our relief
quickly turned to anger, fear and pain again when we soon found out we live in
the highest "no" voting electorate. We went through all of the
emotions again – making plans to move - as
how can we bring up our son in this area?
In a supplementary submission, the Victorian Gay and Lesbian Rights
Lobby and the NSWGLRL noted the impact of this ongoing trauma on mental health
Mental health services have reported a 40% increase in people
seeking support during and after the survey, forcing them to divert resources
from other critical mental health services.
Marriage Law Survey (Additional Safeguards) Act 2017
The government recognised that many of the protections that exist through
current electoral laws would not apply to the postal survey 'given this process
is conducted through the' Australian Bureau of Statistics (ABS).
The government, supported by the opposition, passed the Marriage Law Survey
(Additional Safeguards) Act 2017 (Safeguards Act) in order to bolster
existing electoral law and other protections to provide:
...provisions to ensure relevant authorisations on
advertisements, reasonable opportunity to have opposing views broadcast,
offences against bribery and threats and the prohibition of misleading and
deceptive conduct in relation to the completion of survey forms...
This Bill will also propose a further safeguard against
vilification, intimidation and threats to cause harm because of the views
expressed or believed to be held in relation to the Survey, or because of the
religious conviction, sexual orientation or gender identity or intersex status
of a particular person or group.
These protections commenced on 14 September 2017 (36 days after the
postal survey was announced) and concluded on 15 November 2017.
Concerns about the Safeguards Act
NSWGLRL put forward its view that the government's delay in introducing
additional safeguards around the postal survey until after the High Court's
ruling on the validity of the Finance Minister's advance has resulted in the
publication of misleading and intimidating material, for which there may be no
[NSW]GLRL is concerned about any continued delay before such
regulations are considered by the government and relevant stakeholder groups.
We continue to be made aware of a number of pieces of advertising which would
be considered misleading and intimidating, for which there may currently be not
appropriate or effective legal avenue to have these matters dealt with.
LGBTI Legal Service raised its concerns about the lack of definition
around what constitutes a "notifying entity" under the Safeguards
Act. As a legal services provider, it was unclear whether LGBTI Legal Service
'would be a valid notifying entity for the purpose of a civil penalty
The [LGBTI Legal] Service's prospective applications were
delayed by the need to seek legal advice on the meaning of notifying entity.
Further, the Service understand from conversations with other community
stakeholders that groups and individuals who could not obtain legal advice were
delayed or deterred in pursuing matters under the Safeguards Act because of
LGBTI Legal Service also argued that the potential for exposure of
individuals or small not-for-profit organisations to cost orders from
unsuccessful actions proved a deterrent to legal action being launched under
the Safeguards Act. The submission noted:
The Service recognise that adverse cost orders are an
important mechanism for minimising vexatious claims. However, the requirement
to obtain Attorney‐General
approval was clearly designed to allow vexatious claims to be dispensed with
without calling on the Federal Court's resources. With this protection in
place, the Government should have taken action to minimise the risks and burden
associated with community‐initiated
litigation. The Government could have done this by:
Subsiding the litigation costs of approved applicants;
Making a commitment to prosecute cases on behalf of approved
Legislating to modify the usual rule that 'costs go with the case'.
The Public Interest Advocacy Centre (PIAC), in a submission also
endorsed by the Community Legal Centres NSW, observed that the requirement to
obtain the consent of the Attorney-General before action can be taken under the
Safeguards Act as 'unnecessarily and inappropriately politicis[ing] the
protection of rights under the Safeguard[s] Act'. Furthermore, PIAC commented
on the three month time limit for making applications noting that 'this time
limit is far too short'.
This was particularly so given that:
...most people invested in
the public debate surrounding this issue were focused on the subsequent
parliamentary debate until the passage of the Marriage Amendment (Definition
and Religious Freedoms) Act 2017 on Thursday 7 December 2017, and the intervention
of end-of-year/summer holidays, it is an unreasonably short timeframe for
applications to be prepared and lodged.
Dr Kevin Bonham posited that section 15(1) of the Safeguards Act, which
relates to vilification, is not clear on what constitutes a 'view on the
marriage law survey question'. Dr Bonham explained:
meaning of the terms "a view in relation to the marriage law survey
question" and "his or her views about the marriage law survey
question" is insufficiently clear, especially in a debate in which people
are frequently making comments about same-sex parenting (or on the other side
sometimes, religious institutional child abuse) that lack any clear connection
to the survey question but that strongly appear to be aimed at influencing the
Some submissions highlighted the effectiveness of the Tasmanian Anti‑Discrimination
Act 1998 in reducing the incidence of vilification on the basis of sexual
orientation, gender identity, intersex status, and relationship status.
Government responses to complaints
On 7 September 2017, Mr Paul Pirani, Chief Legal Officer at the
Australian Electoral Commission (AEC) told the committee that if the Marriage
Law Survey (Additional Safeguards) Act 2017 simply extended the current
provisions under the electoral act that this would not stop people from
publishing or distributing offensive material, it would merely ensure that it
was properly authorised. Mr Pirani explained:
If the provisions [of the Marriage Law Survey (Additional
Safeguards) Act 2017] were to mirror what's in the Electoral Act, it
still wouldn't deal with the actual content. All it would deal with is making
sure people are aware of who has authorised it and who has caused it to be
published, and if a person believes they have been defamed, or some other
illegal action has occurred in relation to the advertisement, then they would
be able to take their own legal action, including to state antidiscrimination
boards that have jurisdiction in dealing with racial vilification and those
type of matters, but it isn't a matter that falls within the jurisdiction of
At the committee's public hearing on 15 September, Ms Samantha Palmer,
General Manager, People, Culture and Communication Division at the ABS informed
the committee that approximately 4 per cent of 87 000 telephone calls to the
postal survey call centre were complaints, equating to 3 480 complaints.
Mr Tom Rogers, Australian Electoral Commissioner, noted at a Supplementary
Estimates hearing in October that 'as at 10 October, we'd received 615
complaints about the survey authorisation and other issues', of which most
related to 'authorisation'.
Mr Pirani explained that he was directly involved in dealing with 160 of these
We responded to the complainant in each of those [615
complaints]. There were a couple of matters that were escalated to me that I
took action on in relation to making contact to the owner of websites, ensuring
that the authorisation details required by section 6(5), were included on those
websites. There was one matter that I escalated to Facebook, and the lawyers
for Facebook went through a process that I understand last week resulted in
that particular page being brought down and blocked for access in Australia.
Mr Pirani told the committee about the types of authorisation issues the
AEC was dealing with described the issues around authorisation and the AEC's
approach in dealing with them:
[Where there are no] authorisation details, and we had no way
of identifying who the person behind that was. In relation to most of the
websites, it is reasonably accessible to be able to ascertain who the contact
persons are, and there are a number of internet search tools to enable you to
locate them. I have been sending emails and I've had nearly 100 per cent success
rate in having authorisation details added.
Mr Pirani also explained his role in establishing precedents that
allowed the complaints team to action subsequent similar complaints:
Most complaints come into the AEC at our info@ address, and
we have a filtering process where some of them might come to me first to create
a precedent. I'll give you an example: the first robocall that went out from
Equality Australia led to a large number of complaints that didn't have the
correct authorisation details. I dealt with the first one of those and, after
that, the information team responded to the others. We had the skywriting
incident. The first one of those came to me, I provided a form of words, and
then the info team dealt with the rest of those.
Mr Rogers observed that this approach was consistent with the AEC's role
during elections, however pointed out that there are a number of limitations
that make the survey process different to a regular election:
...at election time, generally speaking, if we phone one of the
political players and say there's an issue, it's invariably a mistake and they
fall over themselves to fix it very quickly. In this particular case, it can be
difficult, if you've got some parties that are brand-new to the process.
The safeguards failed to engage with the circumstances that
distinguished the postal survey from a general election – namely the
involvement of protagonists without any ongoing incentives for compliance with
norms and laws that govern elections.
Mr Pirani explained:
The other issue is: they aren't cogent entities. Unlike
dealing with a political party where I've got a registered office and contact
details et cetera, to identify and locate some of the disparate groups out
there campaigning is extremely difficult.
Mr Pirani informed the committee that he was only aware of four
instances where a complainant was provided with the contact details for the
Attorney-General's Department where a complaint related to an allegation of
vilification or discrimination.
Section 19 of the Marriage Law Survey (Additional Safeguards) Act
2017 provided that if a person wanted to take civil legal action against someone
alleged to have engaged in vilifying, intimidating or threatening behaviour,
they must first seek the consent of the Attorney-General.
At the Supplementary Estimates for the Legal and Constitutional Affairs
Legislation Committee, the then Attorney-General, Senator the Hon George
Brandis told the committee that no requests for consent had been to him at that
There are doubts as to whether this represents a complete picture of the
complaints the public would have wished to make about the process. The ABS has
given evidence during Senate estimates hearings that it did not have a formal
protocol for handling complaints until sometime after the postal survey. The
division of responsibility for responding to complaints between multiple
agencies (including the AEC, ABS, Attorney-General's department, and Australia
Post) meant that there was no clear process for members of the public to report
There was also no clear mandate provided to frontline staff to document, pursue
and elevate complaints.
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