Anyone wondering why they have been seeing so much of Lyle Shelton on their TV since the end of August should know there’s a very good reason for it: it’s the law.

Well, sort of.

Wait, there’s a law that puts Lyle Shelton on my TV? When did that happen?

In mid-September, the government rushed through temporary legislation to protect national discourse. 

The Marriage Law Survey (Additional Safeguards) Act 2017 is meant to ensure that the optional postal survey, not subject to the same rules as an election, doesn’t allow a flood of bigotry and hatred to wash over Australia unopposed. As has been catalogued exhaustively in this publication, it’s done a poor job of keeping things civil.

When the legislation initially passed, the focus was on the provisions that outlawed vilifying, intimidating or threatening someone because of their religious conviction, sexual orientation, gender identity or intersex status, and the penalties of up to $12,600 that could be imposed for breaches. Some called it an attack on free speech, but so far, in spite of everything, no one has been brought before a court under this legislation. 

Does the legislation require broadcasters to be balanced?

Yes. The act requires that broadcasters, if they “give opportunities for one side to put their views, must provide the other side with reasonable opportunities”. The preliminary section of the act provides a simplified outline, which describes the obligations imposed by the act as similar to those of the Broadcasting Services Act 1992, and by the Commercial Television Industry Code of Practice during an election period. It goes on to say “broadcasters are also required to provide reasonable opportunities to representatives of organisations that hold opposing views in relation to the marriage law survey question to broadcast their views”.

As a result of the new rules, some networks, like Foxtel’s NBCUniversal have taken to pointing out that it is required by law to schedule advertisements for both sides of the debate, but “is actively committed to diversity and inclusion in all its forms around the world”.

Both the ABC and SBS are specifically singled out as having to, if they broadcast one side of the marriage debate, give a “reasonable opportunity, to a representative of an organisation that holds an opposite view in relation to the question”. Of course, the ABC perhaps didn’t need that — they have been out in front of the issue, telling staff back in early August that “40% of the population” oppose marriage equality and reminding journalists to make sure “all perspectives are given a fair hearing”. 

Does everyone have to follow these rules?

The requirement for balance excludes a broadcaster that represents either “a religious community interest; or a community interest that includes a gay and lesbian community interest”. So there’s no requirement for JOY 94.9 to ask Karina Okotel what she thinks, nor FaithFM to interview Christine Forster. 

Can the balance requirement actually be enforced?

While the act provides set penalties for threats, bribery, vilification, interference with a ballot, or an ABS statistician attempting to use their role to influence to content of a ballot, the act does not appear to attach any penalty to a breach of the sections regarding balance. Further, the shortness of the time period for which the act has effect may be a deterrent for making any complaints. Indeed, it might even be easier for a party who has felt they’ve been frozen out of the debate to complain via the media about how their side is being silenced, rather than by using official complaints processes.

What are the regulatory and representative bodies telling broadcasters?

Crikey understands that beyond adding to the guidelines they always provide regarding political content, the Australian Communications and Media Authority are giving no specific advice to broadcasters regarding the balance of marriage equality material.

Free TV Australia, which represents Australian commercial free-to-air television licensees, was asked what advice they were giving their members regarding marriage equality, but did not respond.

Peter Fray

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