The government has distributed legislation extending electoral protections around the same-sex marriage postal survey to Labor and the Greens — but the bill likely won't be considered by the parliament until the High Court challenge to the ballot is resolved.
Last week, the government announced it would hold a postal survey, conducted by the Australian Bureau of Statistics, as a last-ditch effort to keep its election promise of giving the Australian people a say on same-sex marriage.
But as the survey is being run by the ABS, not the Australian Electoral Commission, it is not subject to various protections in the Electoral Act — including the distribution of misleading or deceptive material, and the requirement that advertising carry appropriate authorisations.
Now, in an olive-branch effort to ameliorate concerns, the government has distributed legislation that would extend electoral protections to the postal vote.
BuzzFeed News understands Labor has received the bill, and is still considering its position on it.
Acting special minister of state, Mathias Cormann, told BuzzFeed News in a statement that the legislation proposed is a "good faith" move to add more protections around how the postal survey will be conducted.
"At the appropriate time all relevant stakeholders will be consulted before we put any proposed bill to the parliament," he said.
There is just one sitting day left this week, and parliament doesn't sit again until early September. Cormann indicated this meant that the legislation wouldn't hit the parliament until after the High Court has heard the postal survey case.
"The most likely timing for consideration of a bill to provide for additional legal safeguards, to complement existing legal protections and to support the fair and proper conduct of the Australian Marriage Law Survey, will be after the High Court’s hearings on 5 and 6 September," he said.
Earlier on Wednesday, the Greens also called for the bill's passage to be delayed until after the High Court returns its ruling.
"We are concerned about the potential interaction of this legislation with the High Court challenge, so we have informed the government that our strong preference is for this legislation to be considered after the challenge is concluded," said senator Janet Rice.
"Human rights should not be put to a public vote. When we achieve marriage equality it will be through a vote in the parliament, so why waste time with this hurtful plebiscite?" she added.
Both legal challenges are predicated on the government having exceeded its executive powers in funding the vote, so any kind of parliamentary approval of the process could have an impact on the case.
Shadow attorney general Mark Dreyfus told ABC's Insiders on Sunday that Labor would look at the legislation and "our inclination is to make sure this is a respectful debate".
"We’ll look at whatever the government puts forward, there’s an issue there, it might have some consequences for the court case that’s being brought," he said.
Dreyfus added that comments in the debate so far supported the need for restrictions during the postal survey period.
"We gave Malcolm Turnbull an opportunity in the parliament last week to condemn for example Bronwyn Bishop’s appalling comments. He didn’t," Dreyfus said.
"If the government won’t do that, perhaps we do need to look at other measures."
During Question Time on Thursday, prime minister Malcolm Turnbull laid out the protections the postal vote would be subject to — with the Electoral Act starkly missing.
"The protections that will be in place for the postal plebiscite will include all the protections under the telecommunications legislation, which makes it an offence to tamper with the mail. It will be covered by the protections under the Census and Statistics Act, which makes it an offence to provide false or misleading statements. And, of course, the Criminal Code itself contains multiple offences which would prohibit a person from interfering with the collection of statistics, including making it an offence to obstruct, hinder, intimidate or resist a Commonwealth official in the performance of their functions."
Do you have questions about Australia's upcoming postal survey on same-sex marriage? Same. Here's a list of everything you need to know, and more.
Lane Sainty is a reporter for BuzzFeed News and is based in Sydney, Australia.
Contact Lane Sainty at firstname.lastname@example.org.
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