Marriage and freedom: promises ring hollow until the states act

In the current debate over marriage, proponents of the ‘Yes’ campaign argue that concerns over freedom of speech and religion are red herrings designed to cloud the issue.

They claim that Australians are being asked no more than whether same-sex couples should be allowed to marry.

And it is true that the question itself asks just that.

However, it is deceitful at best to pretend that changing the law on marriage will not have implications for the freedoms that Australians have taken for granted but that are already slipping away before our eyes.

I refer to Commonwealth public service provisions that prohibit any criticism of any government policies (even outside the workplace), state investigations into the religious beliefs of a Catholic archbishop, news that a young woman has been sacked for her views on marriage and new corporate policies that will see workers disciplined or sacked if they use ‘angry’ emojis in Facebook posts about pay cuts.

In the current environment, it is clear that personal political and religious beliefs, social media and the law are tangled in an almighty mess where the ‘legal test’ can result in a very different outcome to the ‘pub test’.

I can attest to this probably better than anyone else in Australia.

The High Court will soon determine legal jurisdictional questions in five related matters that stem from complaints about my speech.

Between mid-2014 and early 2016, an activist in New South Wales lodged 32 complaints about my webpage, which is operated in Queensland. Of these, 22 complaints were accepted by the New South Wales Anti-Discrimination Board and they became 16 NSW Civil and Tribunal matters.

So far, no ruling has been made on constitutional questions relating to the implied freedom of political communication or the religious freedom provision in the Constitution. These questions are not before the High Court either. But I did fail on both those issues in a separate matter involving my sacking from Australian Army.

Consequently, it is fair to say that these matters are at the very least undecided as we contemplate our postal survey forms. However, if the betting agencies were running odds on this issue it is unlikely that I would be listed as the favourite.

If the High Court rules that one state’s tribunals can hear matters against a resident in another state altogether, I will need to account for my writings on marriage, family and morality to a tribunal in a state in which I do not even reside and even though my speech has not broken any laws in the state in which I live.