The Turnbull government's proposed version of marriage equality would further entrench discrimination by allowing civil celebrants and service providers to refuse to undertake gay weddings, the peak law body says.
The Law Council of Australia will on Monday tell a parliamentary inquiry the proposed laws would allow discrimination against same-sex couples on "no proper basis" and undermine fundamental principles of the law.
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Same-sex marriage: the facts
What exactly would change for same-sex couples if they could marry?
"The current bill that they're looking at doesn't strike the right balance," council president Fiona McLeod, SC, said. It went "too far" in appeasing religious groups and was "inconsistent with the current federal law", she said.
Despite the same-sex marriage plebiscite being blocked in Parliament, the government has released an exposure draft of its legislation to legalise gay marriage if a plebiscite were to take place and be successful.
It is significant because it is the first time a federal government has put forth its vision for how marriage equality would work in practice. The draft laws allow religious ministers and civil celebrants to refuse to officiate same-sex weddings, and grant religious bodies permission to decline wedding services – such as venue hire, catering or photography – to gay couples.
Those elements have irked same-sex marriage advocates and, now, the peak membership group for Australian lawyers, which said the exemptions made "unwarranted intrusions" on human rights and were inconsistent with the laws adopted in most countries, including Britain.
"To exempt a civil celebrant under the act … gets the balance wrong. You're saying an individual can choose to discriminate when they're fulfilling essentially a government duty or a civil duty," Ms McLeod said. Civil celebrants perform about 75 per cent of weddings in Australia.
Ms McLeod said very few countries had gone down the path of allowing religious organisations to discriminate in the provision of goods and services. "What they're doing by introducing these provisions … is to go too far and to wind back the current protections under discrimination law in Australia," she said.
But church groups want the law to go even further in protecting religious freedom. In its submission, the Sydney diocese of the Anglican Church argued exemptions should be given to any "individual believer" because freedom of religion entailed not just belief but "the right to manifest those beliefs in the public sphere".
Ms McLeod said such rights were "limited" when they conflicted with other people's rights, such as freedom from discrimination.
The draft marriage equality bill, released by Attorney-General George Brandis in October, was quickly panned by pro-same-sex marriage campaigners, who said it was another reason to oppose the government's proposed plebiscite on gay marriage.
Labor condemned the draft bill as evidence of right-wing backbenchers' control over the Turnbull government, while Senator Brandis said it "hit the sweet spot in the middle".
Also due to address the inquiry this week are the main voices campaigning on either side of the same-sex marriage debate, including the Australian Christian Lobby and Australian Marriage Equality.