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Senator Says A Marriage Plebiscite Would "Stain Our Parliamentary Democracy"

Dean Smith wants a free vote and has been drafting a bill. Here's what it might look like.

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Senator Dean Smith says he will not support a plebiscite or its postal iteration, despite what the Liberal party room decides on in a hotly-anticipated emergency meeting to discuss the vexed issue of same-sex marriage on Monday.

Speaking to Sky News on Friday, the Western Australian senator slammed the public vote proposals as something that would "stain our parliamentary democracy".

“I have made it very, very clear that I cannot support and will not support a plebiscite nor a postal plebiscite," he said.

"They are corrosive, they are divisive, I think they will stain our parliamentary democracy and not improve it."

Smith describes himself as a constitutional conservative and a traditionalist — a picture of the Queen was displayed prominently next to Smith during the interview on Sky — and has been consistent in his view that the marriage equality plebiscite proposal tarnishes Australia's system of representative democracy.

He was the only government MP to vote against the legislation when it was considered in the federal parliament last year.

Three weeks ago, Smith revealed that he had been working on a same-sex marriage bill that he intended to present to the party room — an announcement that kicked off the current re-energised period of Australia's same-sex marriage debate.

He told Sky News on Friday that it was "absolutely" his intention to make the bill available before the meeting on Monday.

He said the bill would be closely modelled on a Senate committee report issued in February this year. The Senate inquiry had considered the bill to amend the Marriage Act put forward by the government as part of the plebiscite legislation package in 2016.

"If people are interested, curious to know what is in a bill that I will bring forward, then their first point of course should be to read the Senate report, read the Hansard transcripts, read the submissions, and they’ll be able to get a very, very clear indication of what my bill may look like," Smith said.

So, what IS in that report?

The first thing to know is that this committee was looking very precisely at *how* the Marriage Act should be changed in order to legalise same-sex marriage. It wasn't about whether same-sex marriage should be legalised or not, nor about whether there should be a plebiscite or a parliamentary vote.

This meant that many of the submissions to the report, and much of what came out of it, were related to exemptions. Who should and shouldn't have to solemnise same-sex weddings? Should bakers have to bake cakes for them? And so on and so forth.

1. The committee resolved a few big things: one, exemptions should be retained for ministers of religion who do not wish to marry same-sex couples.

Under Section 47 of the current Marriage Act, ministers already have the right to refuse to marry any couple they don't want to. The report noted that this section provides "the broadest and strongest protection of religious freedom for ministers of religion".

There is broad support among Australian same-sex marriage advocacy groups for this exemption to continue.

2. The second significant recommendation was to create a new category of religious civil celebrants who, as with religious ministers, would be granted the right to refuse to solemnise any marriage they did not want to.

Currently, civil celebrants do not have a blanket exemption to refuse to marry any couple they don't want to — they are bound by the general provisions of anti-discrimination outlined in the Sex Discrimination Act.

3. However, the report writers stopped short at recommending ministers and celebrants be allowed to refuse a same-sex couple of the basis of their *conscience*, as opposed to their *religious* belief.

The report said: "The committee is guided by the limited legal usage of 'conscientious belief' but observes that it would be unprecedented to allow 'conscientious belief' to be used to discriminate against a class of persons. The committee is not inclined to disturb established anti-discrimination law and practice."

4. As for the wedding bakers and candlestick makers...the report is less definitive.

In his speech to the Senate on the report, Smith stressed the part that points out religious organisations already have the power to discriminate in the provision of goods and services when it accords with their belief system, under the Sex Discrimination Act.

But this wouldn't include, for instance, a baker or a photographer who runs a commercial business and believes in a religion that disapproves of same-sex marriage.

The report noted that "Australia's obligations under international human rights law apply to individuals as well as groups" — implying that Australia may be obliged to extend similar religious protections to said bakers. But it stopped short of saying we should legislate so individuals can discriminate against same-sex couples in providing goods and services.

In short, it's hard to say based solely on the report how a bill would deal with this issue.

5. One other thing to note is that the report found that "two people" would be an appropriate way to describe who is allowed to marry.

This is as opposed to something such as "a woman and a man, a man and a man, or a woman and a woman", and is to ensure people who are transgender and intersex have the right to marry.

6. The committee also found there was evidence to support, generally, "the need to enhance current protections for religious freedom".

It suggested that the most appropriate way to achieve this would be by including "religious belief" as a protected attribute in federal anti-discrimination law.

It is unclear whether such an amendment would be presented alongside a bill to amend the Marriage Act.

UPDATE

Details of the bill were reported by News Corp on Sunday.

It would see a newly-created category of religious civil celebrants who can legally refuse same-sex couples, as well as granting exemptions to religious organisations.

It would not exempt commercial businesses unless they were linked to a religious organisation.


Lane Sainty is a reporter for BuzzFeed News and is based in Sydney, Australia.

Contact Lane Sainty at lane.sainty@buzzfeed.com.

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