The Human Rights Commission and the Emperor’s new clothes

But there are two problems with this approach. Firstly, these are laws of other sovereign states, with different constitutions and different legal systems, to which Australian law cannot be subject. Who ever heard of American gun laws or the Second Amendment being used as authoritative grounds to compel the Australian parliament to pursue the right to bear arms? So why do we cherry-pick their case law on equality? Or indeed the European cases, dealing with the interpretation and application of European conventions in nations like Austria, Finland and Italy?

But let me hasten to raise the second problem – the cases alluded to (Schalk & Kopf v Austria, Hämäläinen v Finland and Oliari v Italy) - don’t get the activists out of their troubles anyway. Even if they could be said to bind Australia, they would not elicit either a right to same-sex marriage directly, or as a product of equality and non-discrimination rights. As recently as 2015, the European Court of Human Rights declared that there is no such reality in European human rights law.

It is disappointing that human rights lawyers routinely advise governments as if they were activists, pushing an agenda that, though they wish it were true in law, is not actually true. And wishing it to be true, they clothe themselves in the authority that comes with the mere phrase, “human rights expert/lawyer/adviser/commission/committee/insert-preferred-title-here.” Veritable modern day emperors of political correctness and morality.

But peel back to the bare facts, and the emperor has no clothes.