Law Council of Australia


Legal protection necessary as postal survey hits letterboxes

14 September 2017

Parliament has agreed on new laws to safeguard against hate speech during the same-sex marriage postal survey campaign by rapidly passing the Marriage Law Survey (Additional Safeguards) Bill on yesterday.

The Law Council has strongly advocated for the anti-vilification provisions which cover a wide-range of conduct, including measures to prevent vilification, intimidation, or threats to cause harm on the basis of the sexual orientation, gender identity, intersex status or the religious convictions of someone during the survey period.

The new temporary laws will apply until mid-November restricting content published by campaigns, anyone found to have breached those provisions could face a $12,000 fine and a court injunction.

Law Council President Fiona McLeod said campaigners must identify who is responsible for content, people who fail to correctly authorise offensive material during the same-sex marriage debate face more than $25,000 in fines.

“Vilifying, misleading and deceptive materials and statements should never be part of any campaign,” Ms McLeod said.

“If material is published during the period of the survey that fails to identify who the author is and the identifying features of that author then there's a civil penalty that applies to that material, which is very similar to provisions in the Australian Electoral Act.

“The Bill was a difficult balancing act for parliamentarians and we hope the penalties in the legislation never have to be used, but it is vital that we have them in place.”

The Law Council strongly advocated a ‘yes’ vote on the same-sex marriage postal vote, following the High Court ruling last week allowing the postal survey to proceed.

President, Fiona McLeod SC, said the Law Council has been in support of marriage equality since the Marriage Act was amended in 2004.

“The Law Council has long held that our marriage laws should not discriminate on the grounds of gender or sexual orientation,” Ms McLeod said.

Ms McLeod said freedom from discrimination is a fundamental human right and discrimination on arbitrary grounds, including sexual orientation is contrary to Australia’s international human rights obligations.

“There is no sound basis on which a person’s gender or sexual orientation should continue to affect their rights and responsibilities under Australian marriage law,” Ms McLeod said.

Ms McLeod said given that the Government has decided to conduct a postal survey, and that there are now no legal impediments to this occurring, The Law Council urges a respectful and sensitive debate focused on the issue and the ultimate return of a ‘yes’ vote.



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