Marriage equality was finally passed by the Commonwealth Parliament on 7 December 2017. That followed the Government’s three-month postal survey, which culminated in the announcement of an emphatic 61.6% Yes vote on 15 November.
It is important to remember, however, that the successful outcome could, and should, have been achieved without a postal survey.
Parliament always had the power to ensure all couples were treated equally under the law. It did not require a postal survey to do its job. But more than this, the postal survey was a wasteful and inevitably harmful process, especially for members of Australia’s lesbian, gay, bisexual, transgender and intersex (LGBTI) community and their families.
It is a process that must never be repeated.
That is a conclusion shared by the majority of members of the Senate Finance and Public Administration References Committee, who recently handed down their report into Arrangements for the Postal Survey.
Their first recommendation was that ‘questions of human rights for minority groups should not be resolved by a public vote.’
This position was based on a number of concerns: ‘from constitutional conservatives worried about the erosion of parliamentary democracy, to advocates concerned about an intolerant campaign, and ordinary Australians who just wanted politicians to do their job’ (p33).
But the most important among these were the stories of the real-life consequences of the postal survey itself, including the story of Kate and her family, contained in the Rainbow Families NSW submission (p26):
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… 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’…
My heart rate went up every time 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…
The Committee recognised ‘the hurt and distress experienced by much of the LGBTIQ community during the course of the postal survey’ (p34), and consequently recommended that ‘the Australian Government consider how further funding and support could be offered to mental health and LGBTIQ organisations to help address the consequences of the postal survey’ (Recommendation 2).
PIAC hopes that the Government accepts its responsibility in this area and allocates funding, either immediately or at least by the May 8 Federal Budget.
The third and final recommendation was that ‘the Australian Electoral Commission actively engage with remote communities and Indigenous peak bodies to increase the number of enrolled people in remote electorates and to increase the participation of enrolled people in local, state and federal elections.’
This is particularly required in response to the Northern Territory electorate of Lingiari, where participation in the postal survey was only 58.4%, compared to a national average of 79.5%, with more than two-in-five people being Aboriginal and/or Torres Strait Islander and where up to one-in-five people are not enrolled at all.
The issue of under-enrolment, and comparatively low participation, by Aboriginal and Torres Strait Islander people must be addressed in the lead-up to the next Federal election, due by mid-2019.
Liberal Senators James Paterson and David Fawcett provided their own dissenting report, in which they supported in principle the Committee’s final recommendation (about remote and Indigenous enrolment) but, disappointingly, rejected the first two recommendations.
Specifically, they defended the process of the postal survey. Despite acknowledging that ‘there were instances of people disseminating offensive material’, they concluded that ‘Public debate can be healthy, constructive and help the community come to terms with changes in social mores’ (p48).
It was also disappointing that neither the majority nor dissenting reports recommended that the temporary protections against vilification contained in the temporary Safeguards Act, which have now expired, should be made permanent.
This was a key recommendation of our own submission to the inquiry alongside procedural improvements to remove the involvement of the Attorney-General in determining who may bring legal actions against vilification or indeed whether such actions can proceed at all.
PIAC will continue to call for the introduction of permanent protections against vilification on the basis of sexual orientation, gender identity and sex characteristics, as well as other attributes.
We will also continue to argue that the process of a postal survey must never again by imposed on a minority group who are simply seeking to be treated equally under the law.
As the United Nations Human Rights Committee observed in relation to the postal survey:
[R]esort to public opinion polls to facilitate upholding rights under the [ICCPR] in general, and equality and non-discrimination of minority groups in particular, is not an acceptable decision-making method and that such an approach risks further marginalizing and stigmatizing members of minority groups.
Alastair Lawrie is a Senior Policy Officer at PIAC.