Let’s See The Devil In The Detail


Senator Dean Smith (OutInPerth)

Liberal Senator Dean Smith is drafting a Marriage Equality Bill – but will it be Marriage Equality, or Marriage Apartheid?

We’re all waiting with bated breath for the Marriage Equality Bill currently being drafted by Liberal Senator Dean Smith, with the assistance of his temp staffer, Anna Brown, Director – Advocacy & Strategic Litigation, Human Rights Law Centre.

But concerns have been expressed at the secrecy of the process, with many rights advocates and even elected representatives unaware of what Smith will include in his bill.

Following the senate committee report earlier this year, there was an expectation that a cross-party  effort would be mounted to draft a bill, involving not just Dean Smith, but also in consultation with Janet Rice of the Greens and Labors Louise Pratt. This has not happened.

A spokesperson for Senator Rice said,

“Janet is in regular conversations with Senator Smith and Senator Pratt still, and she’s glad to see him taking this lead. A cross-party bill isn’t off the table, but I think it’s a case of allowing Senator Smith’s initiative to work through and see if the PM can get his act together!”

(the stirrer contacted Rice and Pratt, as well as Tiernan Brady from Australian Marriage Equality, but did not receive a response in time for inclusion)

However, Liberal insiders expressed surprise when the stirrer queried why Smith and Brown now appeared to be working alone.

A Liberal source asserts that there is nothing to be concerned about: this is just normal parliamentary process. Once the legislative affairs committee completes its work, they explained, including a very extensive submissions process, it’s up to the member with carriage of the bill to turn its recommendations into legislative language. And that’s all that’s happening here.

The consultation period is over, they said. The next opportunity for the opposition to speak on it is during second reading, when opposition spokespersons will be able to propose amendments.

Veteran campaigner Rodney Croome pointed out that the committee report had not produced clear-cut recommendations, leaving many issues, especially in relation to religious exemptions, undecided.

The range of issues on which the committee was unable to reach a conclusion are discussed in its report here. In particular, the committee was unable to agree on whether religious and conscientious objections to equal marriage should be dealt with in Bill, or by making changes to Anti-Discrimination Law. They said:

“… there was consensus in the evidence received that the right to religious freedom should be positively protected. The nature of possible protections will continue to be debated. The committee heard of various potential remedies to this issue, such as an anti-detriment provision or a distinct legislative instrument to protect religious freedom.”

Croome highlighted the danger:

“The Senate report from earlier this year gives broad guidelines about what a tripartite bill might look like but the devil will be in the detail. Most people agree clergy should retain their right to turn away any couples whose relationship they disagree with, including same-sex couples when we are able to marry.

“But accompanying same-sex marriage with new “protections” for people who object to these marriages sends the message that same-sex marriages pose some kind of unique and exceptional threat to the community, which is not the case.”

Croome also pointed out that the LGBTI community has already set its face firmly against any further protection of religious privileges which might sanction discrimination against LGBTI couples.

“Earlier this year the largest survey of the LGBTI community ever conducted found overwhelming opposition to exemptions allowing discrimination against marrying same-sex couples even if it means marriage equality is delayed.”

He also expressed concern that community advocates were not involved in the drafting of the bill, especially in relation to religious “protections”, and called for immediate access to the draft by LGBTI community representatives.

“The LGBTI community must be consulted and its assent sought to any exemptions that go beyond what already exist, and now is the perfect time to do this. If the battle in 2016 over a plebiscite taught us anything it is that the path to marriage equality should not isolate, target or disadvantage the LGBTI community and that our community should be central to the process.”

It is the stirrer’s understanding that Smith’s bill will include exemptions not only for ministers of religion not wishing to perform LGBTI marriages, but also for any celebrants who conscientiously object. This, I was told, would be in line with the committee’s unanimous recommendation.

The Bill is likely to go further. The chance of persuading enough Liberal MPs to support a free vote apparently hinges on what further “exemptions” – such as for wedding planners, florists, bakers and other wedding-related service providers – are included in the bill. The argument with which Smith and his supporters hope to win over their opponents in the Coalition runs like this:

“Labor is almost certain to win the next election. They have pledged to bring in a Marriage Equality Bill which will have few, if any, religious or conscientious exemptions. The only chance of preventing that is for the Liberals to pass a Marriage Equality Bill with such exemptions included.”

Take the win for now, the stirrer was told, we can clean up the exemptions later. Don’t let the perfect drive out the good, I was told. The chances of any bill making it onto the statute book are already pretty slim. Without exemptions, goes the argument, they’re practically nil.

On the other hand advocates like Croome – and the stirrer too – fear that and expansion of the scope of religious and conscientious exemptions in this proposed bill could set a terrible precedent for exemptions across a whole range of laws. Just what is Smith proposing? We should be told. Now.

About the author

Veteran gay writer and speaker, Doug was one of the founders of the UKs pioneering GLBTI newspaper Gay News (1972) , and of the second, Gay Week, and is a former Features Editor of Him International. He presented news and current affairs on JOY 94.9 FM Melbourne for more than ten years. "Doug is revered, feared and reviled in equal quantities, at times dividing people with his journalistic wrath. Yet there is no doubt this grandpa-esque bear keeps everyone abreast of anything and everything LGBT across the globe." (Daniel Witthaus, "Beyond Priscilla", Clouds of Magellan, Melbourne, 2014)