Marriage and freedom: promises ring hollow until the states act

If I cannot do that, I will face potential orders to pay damages of up to $1.6 million and an order to apologise for my views on marriage and family. Failure to apologise opens up the possibility of contempt proceedings and jail.

My writings have sought to defend the concept that marriage is between a man and a woman. They have been heavily critical of LGBT political activism and tactics and uphold Catholic teachings on the morality of homosexual behaviour.

However, when the highest court of the land determines this matter, the Marriage Act 1961 (Cth) will not be part of the proceedings at all. It is entirely irrelevant, in a legal sense, to this matter.

The High Court will, instead, consider a multitude of case law and other legislation, including: the Anti-Discrimination Act 1977 (NSW), the Civil and Administrative Tribunal Act 2013 (NSW), the Anti-Discrimination Act 1991 (Qld), the Equal-Opportunities Act 2010 (Vic), the Judiciary Act 1903 (Cth) and the Constitution.

It should be immediately clear from this that the laws that govern the type of speech that is likely to be limited if marriage is redefined are not Commonwealth laws but primarily state laws operating within our federation and unified legal system.

Consequently, any ‘promise’ from any federal politician that changing the laws on marriage can be done in such a way to protect speech and religion without accompanying changes to state legislation ring hollow. The Commonwealth cannot protect speech regarding marriage because it is state anti-discrimination law, state anti-discrimination bodies and state tribunals that police this speech.

And right now every state (except South Australia) is arguing in the High Court that their tribunals should be able to reach across state boundaries to police this speech.

Even if I succeed in the High Court, the issues of speech and religion will not go away. They will simply be limited to each individual state’s boundaries and their respective laws.

That’s because redefining marriage will have a big impact on what state anti-discrimination boards define as ‘hate speech’.

This is one area of the law that has ‘progressed’ radically since 2000. Anti-discrimination boards have taken the view that ‘hate-speech’ is a changeable thing; it evolves to match some hypothetical and subjective assessment of community values held by a ‘reasonable person’.

There is no better way of highlighting this than by examining how the complainant in my matter has changed what he complains about.

His first complaint (back in 1999) was against another resident in his housing unit who he alleged had urinated on his door as well as scrawling on it the words ‘faggots should die’.