Marriage and freedom: promises ring hollow until the states act

I originally wrote this article for Online Opinion, where it was published on Friday.

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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.

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’.

This atrocious behaviour, in my opinion, should best be dealt with by existing criminal provisions relating to stalking, intimidation and destruction of property. However, there is a case that anti-vilification laws should deal with such matters.

Unfortunately, 18 years later and these same laws are being used to complain about political communication made by residents in another state altogether relating to discussions about faith, morals, marriage and LGBT political activism.

The legal definition of what constitutes incitement to hatred, serious contempt, severe ridicule or even offence has changed radically as the legal system has recognised homosexual relationships.

It is not a guess, but the hard-nosed reality: if same-sex marriage is recognised in Commonwealth law, state tribunals will once again redefine what kind of speech can be made about homosexual behaviour.

In a post-same sex marriage world, no one knows where the line will be drawn in the state tribunals.

But if the Archbishop of Hobart can already be dragged before a tribunal for issuing a letter that described homosexual relationships as ‘friendships’, and if I can be hauled into another state for criticising uniformed military participation in the Mardi Gras, then it is clear that what most people would describe as ‘freedom of speech’ is about to be reduced even further by law.

And it will all be done under state laws that the federal parliament has no control over.

Author: Bernard Gaynor

Bernard Gaynor is a married father of eight children. He has a background in military intelligence, Arabic language and culture and is an outspoken advocate of conservative and family values.

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