It started at 9:45 yesterday morning. And it was supposed to last for two days.
However, at about 11:45 the judges looked at each other and decided that they had heard enough. They retired for 15 minutes and then returned to inform all the parties that the matter was adjourned. Judgement would be handed down in due course.
The clock had just ticked over to 12:03.
At that point a small army of solicitors, barristers, QCs and various hanger-onnerers began packing volumes and folders into suitcases and departing the Banco Court. Thirty months of legal argument and tens of thousands of pages had just been condensed into slightly more than two hours of hearings.
In fact, the 138 minutes spent in the New South Wales Court of Appeal was shorter than the time I spent travelling to Sydney for it. In one sense it was all a bit of a letdown: it has cost me about $50,000 since August just to get to this hearing, and multiples more since May 2014. I was kind of hoping for a bit more bang for buck.
Their Honours made it very clear from the outset that they were not interested in most of the arguments ready to go yesterday. That’s not to say that most of it was not important to them. It’s just that they wanted to answer one very important question first before delving into other matters.
And to put it in somewhat unlegal language, this is the question: why the hell is the New South Wales legal system clogging up with complaints about the activities of a person living in Queensland?
Or in somewhat more legal language: are the New South Wales Civil and Administrative Tribunal and the New South Wales Anti-Discrimination Board violating the Constitution when they commence and determine matters between residents of different states without being authorised to do so?
If the answer to this question is ‘yes’, then it does not matter whether the Anti-Discrimination Act 1977 (NSW) breaches the implied constitutional freedom of political communication. It does not matter whether this Act breaches the Constitutional protection of religious freedom. It does not matter if Garry Burns’ complaints are vexatious or an abuse of process. None of these things matter because there is no power for the New South Wales Anti-Discrimination Board to even accept complaints in the first place.
And shortly before midday yesterday the judges determined that they had heard enough about this Constitutional and jurisdictional issue to make a decisive judgement. They did not need to waste their time hearing any other arguments.
So we all went home to wait for the decision.
I must say, as a legal amateur, that it is pretty clear to me that there is a big fat problem with the concept that Garry Burns and New South Wales put forward yesterday. They believe that New South Wales has the power to make laws that it can enforce in its Tribunal against people anywhere in Australia.
Or the world.
Like I said, I am untutored in the dark secrets of the law, but I think I can see some fairly obvious holes in their argument.
The counsel for the Commonwealth is learned in the law. And although he spoke softly yesterday, it seemed to me that he drove the legal equivalent of an armoured brigade through those holes, engaging in a process somewhat akin to courtroom shock and awe.
Of course, while I have defended myself against Burns’ complaints for obvious reasons, the Commonwealth nuked them yesterday for different ones: if the arguments put forward by New South Wales succeeds, you might as well kiss goodbye to the current system of law in this nation. New South Wales will be able to operate its own shadow legal system, managed by its own shadow ‘federal’ Tribunal, and hold people anywhere in the world to account against New South Wales law, rather than the law of the land they live in.
Effectively, the Commonwealth would be the big loser. And so it is defending its power. I hope it wins.
I don’t know what the Court’s decision will be or when it will be handed down. When I hear more I will let you know.
However, I would like to point out the question of jurisdiction is not new. I wrote to the New South Wales Anti-Discrimination Board on 24 June 2014, stating:
“The NSW Constitution Act 1902 provides the Parliament of New South Wales the power to make laws for the peace, welfare, and good government of New South Wales. This Act further defines the boundaries of New South Wales, specifically that they do not include territories within the boundaries of Queensland.
Mr Burns’ complaints do not identify any person who resides in the state of New South Wales, nor do they contain evidence of any act that occurred within New South Wales.
I am a resident of Queensland. As I, and my family, have received a number of rape and death threats from members of the homosexual community over the last 18 months, I do not wish to release my residential details to Mr Burns, especially as he has himself made statements supporting violence against those who oppose his views. The Queensland Police have records of my statements in relation to the personal threats that I have received.
Consequently, the New South Wales Anti-Discrimination Board, operating under the NSW Anti-Discrimination Act 1977, has no power whatsoever to inquire into conduct that occurs outside of New South Wales. As I live in Queensland and work from Queensland, my conduct does not fall under the jurisdiction of the New South Wales Anti-Discrimination Board.”
The New South Wales Anti-Discrimination Board ignored this and referred four matters to the Tribunal. That decision by the then President, Stepan Kerkyasharian, has cost me a lot of money. Just saying.
Eventually, even the Tribunal found that the arguments put forward by Burns and New South Wales yesterday were untenable. This should have sent a pretty clear message to the Burns and the Board: not only was I right, but I had been proven right in the Tribunal.
Predictably, the Acting President of New South Wales Anti-Discrimination Board, Elizabeth Wing, responded by referring a further 12 matters to the Tribunal. Again, each one of these complaints has come at a cost. Just saying.
The New South Wales Anti-Discrimination Board has demonstrated that it does not like hearing from me recently. It even told me that it would not respond to my letters, nor would it take my phone calls. However, it did have a whinge about my sense of humour.
I have a very strong feeling that next year the New South Wales Anti-Discrimination Board will receive a letter from me that it cannot ignore. It won’t be a joke. And I can guarantee that won’t make the Thought Police any happier either.