Ahead of the mooted plebiscite on same-sex marriage, expected to be held within months of the election, Australian Christian Lobby managing director Lyle Shelton has suggested suspending state-based anti-discrimination laws so the ACL can express its arguments against same-sex marriage as part of the “no” campaign on the plebiscite. Shelton has confirmed that the ACL has been in discussion with the government about running the “no” campaign.

In a debate on Sky News, Shelton argued that anti-discrimination laws should be suspended during the plebiscite to allow free and open debate on the issue of same-sex marriage, without his side of the debate being subject to anti-discrimination complaints for comments they intend to make about same-sex couples.

The basis for this is a case brought against the Australian Catholic Bishops Conference in September last year by Greens candidate Martine Delaney for what Shelton describes as a “gentle little book” distributed to students in Catholic schools arguing against same-sex marriage. The Don’t Mess with Marriage booklet (still available online) says that those “who experience same-sex attraction” should be treated with “respect, sensitivity, and love”, but then goes on to elevate the status of heterosexual relationships above homosexual relationships, and claim that if “same-sex friendships” are treated the same it “does a grave injustice” and ignores the “particular values real marriages serve”. The booklet also claims that marriage equality would be “pretending” to treat same-sex relationships as marriages.

Tasmanian Anti-Discrimination Commissioner Robin Banks assessed the case and found that there were grounds for investigating potential discrimination within the booklet, but this was not a finding against the bishops. Section 64 of Tasmanian anti-discrimination law gives very few grounds on which to reject a complaint, except if the commissioner finds that it is trivial, vexatious, misconceived, or lacking in substance.

For example, one of the most commonly rejected anti-discrimination complaints concern apartment residents who discover they are allowed to have a cat as a pet in the building but not a dog, and claim that is discriminatory.

Shelton has said the book has nothing to do with hatred, but it is likely the commission will investigate whether the booklet “offends, humiliates, intimidates, insults or ridicules another person” on the basis of their sexuality, under section 17 of the Tasmanian Anti-Discrimination Act.

Shelton today claimed that state-based human rights commissions are “often weaponised by activists“, though the assertion rests on the one case. And far from being “in trouble with the law“, as Shelton claims, the bishops are currently in conciliation with Delaney, meaning the two sides are looking to resolve the matter without any finding needing to be made. Indeed, in a press release in December, Banks said that the two sides were in “positive” discussion “in good fair, and in a way which was open and respectful of each other’s views”.

The process is analogous to someone making a complaint to ACMA or the Press Council about a broadcast or news report. Just because a complaint is being investigated, that doesn’t mean an adverse finding has been or will be made.

The length of time the conciliation process has taken so far — with the Catholic Bishops Conference still free to distribute the pamphlet in the meantime — indicates that any investigation of alleged discrimination would be unlikely to be resolved in the time it would take for a plebiscite to be held. Reports suggest Prime Minister Malcolm Turnbull would seek to hold the plebiscite within months of an election victory.

The Tasmanian law is considered to be broader than anti-discrimination laws in other states because it includes the “offends” clause, but in the last financial year, of the 141 complaints received alleging discrimination, just 11 were related to sexual orientation. The majority (72) were complaints about discrimination based on disability.

It is a similar story in New South Wales, where the New South Wales Anti-Discrimination Board’s conciliation service for the last financial year shows 3.4% of complaints about discrimination on the basis of homosexual vilification and 2.5% for discrimination on the basis of sexuality, or 36 and 26 complaints out of 1058, respectively.

There is no federal law against vilifying people on the basis of their sexuality. In the last financial year, there were also no complaints made to the Australian Human Rights Commission under the AHRC Act of discrimination on the grounds of sexual preference, compared to 16 complaints (out of 628) of discrimination on the basis on religion.

Anna Brown, director of advocacy at the Human Rights Law Centre, told Crikey that the Australian Christian Lobby was “completely misguided” in calling for laws to be suspended.

“There are only limited legal protections against vilification for lesbian, gay, bisexual, transgender or intersex people in Australia and the protections that do exist have high thresholds and broad exemptions that will enable a properly informed and robust political debate to take place.”

Brown said the ACL had been “actively engaged” in debate on same-sex marriage for years without the need for suspending anti-discrimination laws, and “unless they need to resort to hatred and bigotry” in the plebsicite debate, there will be no need to suspend the laws.

“Suspending them would give free rein for hatred and bigotry and send completely the wrong message.”

Brown said that regardless of whether the laws were suspended, the plebiscite would likely create significant stress for same-sex couples and their families, and she urged the Parliament to pass marriage equality into law without undertaking a plebiscite.

Australian Human Rights Commission president Gillian Triggs was unavailable for comment before deadline, but she has told Fairfax that Shelton’s proposition to suspend anti-discrimination laws is “outrageous and highly misguided”.

Shadow attorney-general Mark Dreyfus also spoke against the proposal, stating that if the ACL needed to offend people in order to make their case against same-sex marriage, then “you’ve already lost”.

Peter Fray

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