LAWFUL NOTICE
ATTENTION: Robin Banks, Commissioner, Anti-Discrimination Commission
ATTENTION: Professor M Otlowski, Tribunal Member, Anti-Discrimination Commission
Cc: The Hon Dr Vanessa Goodwin MP, Attorney General, Minister for Justice
Re: Williams v ‘Threewisemonkeys’ [2015] TASADT, Delivered on 30 June 2015,
File No. M-2014-1870
1. The decision delivered 30 June 2015 in the matter of Williams v ‘Threewisemonkeys’,
file number M-2014-1870 is a gross perversion of justice in ignorance of both fact and law.
2. The Tribunal Member, M Otlowski, sided with the complainant and did not critically
appraise the assertions made by the complainant for factual veracity.
(1) In paragraph 9, Mr Williams cited the Beyond Blue web site to contend that the
high levels of suicide among LGBTI individuals is due to ‘discrimination and
exclusion’, whereas recent factual Australian obituary data from an analysis of
the Queensland Death Registry (which report was provided to the Tribunal)
comes to the conclusion that the predominant cause to suicide in LGBTI
individuals is from relationship breakdown.
(2) In paragraphs 11, 12, 14, 15, 16 and 17 Mr Williams made issue of the accuracy
of the statistics derived from the obituary data from the newspapers sourced by
Dr Cameron for his research, and applied them as if they were Australian
statistics standardised to the total population of Australia. The article by
Cameron, Playfair and Wellum was based on a sample size sourced from a
certain number of newspaper obituaries, and the statistics presented in the
article based on the sample size were correct for the sample chosen. This is
factual scientific method. Choose a different sample size and the result would
change. The flyer never alleged these were total population statistics for
Australia, but clearly cited they were statistics from selected newspaper
obituaries from the US. Both Mr Williams and M Otlowski ignored this clear
and evident fact.
3. The Tribunal Member, M Otlowski, selected certain tribunal decisions and High Court
cases in support of her thesis proving the respondent guilty, and in doing so persisted in
ignorance of fact and law:
(1) M Otlowski was wrong in law and fact in ignoring that Commonwealth
criminal charges according to the Criminal Code 1995 section 471(12) against
Mr Durston for the distribution of the “Homosexuality Stats” flyer had been
dismissed in the Magistrates Court after no evidence was tendered by the
prosecution, admitting that the material was not offensive according to a
James Durston
79 West Tamar Hwy, Trevallyn, Launceston, TAS 7250
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Telephone: 040521079579
email: no1ubc@gmail.com
reasonable person. Instead, M Otlowski continued with the fiction that the
material was offensive.
Criminal Code 1995 (Cth)
471.12 Using a postal or similar service to menace, harass or cause offence
A person is guilty of an offence if:
(a) the person uses a postal or similar service; and
(b) the person does so in a way (whether by the method of use or the content of a
communication, or both) that reasonable persons would regard as being, in all
the circumstances, menacing, harassing or offensive.
Penalty: Imprisonment for 2 years.
(2) M Otlowski was wrong in law and fact in ignoring numerous High Court cases
that have now established as doctrine in law: the implied freedom of
communication on government or political matters found within the
Constitution. The ‘Homosexuality Stats’ flyers were issued by Mr Durston prior
to an upcoming Legislative Council election, and as a means to enter into the
debate against same-sex marriage. Mr Durston was entirely free as a member of
the Commonwealth of Australia to participate in the democratic process by
issuing flyers presenting his point of view to add to the debate.
Reference: High Court Cases
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 567 per Brennan
CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ; [1997] HCA 25.
Coleman v Power (2004) 220 CLR 1 at 50 [92]–[93], 51 [95]–[96] per McHugh J, 77-78
[196] per Gummow and Hayne JJ; [2004] HCA 39.
Unions NSW v New South Wales (2013) 88 ALJR 227; 304 ALR 266; [2013] HCA 58.
Tajjour v New South Wales (2014) 88 ALJR 860; 313 ALR 221; [2014] HCA 35.
(3) M Otlowski was wrong in law and fact in overlooking the Tasmanian
Constitution Act 1934, section 46 (1). Although not necessarily mentioned by
the respondent at the hearing, it is nonetheless valid Tasmanian law.
CONSTITUTION ACT 1934 - SECT 46
PART V - General Provisions 46. Religious freedom
(1) Freedom of conscience and the free profession and practice of religion
are, subject to public order and morality, guaranteed to every citizen.
Since the respondent’s flyer ‘Homosexuality Stats’ was issued as representing
his personal religious and political views of the matter as based upon the Holy
Bible, and since none of the content of the flyer was directed at any individual
nor was the content defamatory or intentionally belittling of persons of
homosexual orientation (since the facts were presented in a neutral manner for
the reader to judge their implication), nor was the construction contrary to
public order or morality as it was not inciting any cause of action by way of
James Durston
79 West Tamar Hwy, Trevallyn, Launceston, TAS 7250
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Telephone: 040521079579
email: no1ubc@gmail.com
response to the material, then the respondent had full freedom under the
Tasmanian Constitution to issue those flyers.
(4) M Otlowski was wrong in law and fact in ignoring Common Law which has
never endorsed or ratified homosexuality. While a brief reference was made by
Mr Williams in paragraph 8 about the “lifting of criminality”, M Otlowski did
not correct this statement to make clear what was meant by it, or to make plain
the significance or otherwise of this statement. Mr Williams inadvertently
referred to an Act passed by the Tasmanian Parliament to amend the Tasmanian
Criminal Code to remove the criminal indictment against sodomy/buggery
between consenting adults. The other states amended their respective criminal
codes to decriminalise adult consensual sodomy before Tasmania, and although
they had opportunity, not one State passed any legislation ratifying, endorsing
or accepting as morally acceptable either ‘homosexuality’ or homosexual acts
of sodomy. This still remains the case today. There is no lawful standing of
homosexuality in common law. No law, either State or Commonwealth has
endorsed homosexuality. It has just been the opposite. Even the AntiDiscrimination Act 1998 (Tas) only refers to ‘sexuality’, ‘sexual orientation’
etc, but never to homosexuality, sodomy or buggery because that would directly
contradict common law and make the Act invalid. Even the Human Rights
(Sexual Conduct) Act 1994 (Cth) which was used in a High Court challenge to
change Tasmania’s laws in Croome v Tasmania [1997] HCA 5; (1997) 191
CLR 119; (1997) 142 ALR 397; (1997) 71 ALJR 430 (26 February 1997) does
not specify either relationship or gender and does not mention homosexuality or
sodomy because it too would be inconsistent with the body of common law that
to this day still condemns and does not normalise homosexuality. It is for this
reason that homosexual law reform advocates such as former High Court justice
Kirby continue to campaign against this facet of common law inherited from
England (throughout the majority of Commonwealth nations) to see total
equality for homosexuals. According to the law as it currently stands,
homosexuality has no validity in law in Australia.
(5) The Anti-Discrimination Commission has no authority to rule against the
common law of the country, and homosexuality has no lawful standing in
Australia.
(6) M Otlowski presented some analysis with respect to the Commonwealth
Constitution, section 116, identifying that the High Court has interpreted this
section narrowly, such that it restricts what legislation may be passed by the
Commonwealth legislative power, which includes both Federal and State
legislatures which comprise the Commonwealth. The implications of this
statement were not considered, particularly in respect to legislation that has
been passed by federal and state parliament regarding sexual discrimination: the
Sex Discrimination Act 1984 (Cth) and the Tasmanian Anti-Discrimination Act
1998. The Tasmanian Act introduced later, has clearly been modelled on the
commonwealth/federal Act, which was anticipated within the commonwealth
Act in section 10, so requires some examination to see if the commonwealth
Sex Discrimination Act 1984 does not contravene section 116 in any way.
Simply, the Sex Discrimination Act 1984 does not specify either homosexuality
or sodomy (or variants such as homosexual, male to male sex etc) as grounds
James Durston
79 West Tamar Hwy, Trevallyn, Launceston, TAS 7250
Page 3 of 5
Telephone: 040521079579
email: no1ubc@gmail.com
for valid discrimination, but uses the vague term “sexual orientation”. The
Tasmanian Anti-Discrimination Act 1998 also does not specify either
homosexuality or sodomy (or variants thereof). This is because there would be
a direct conflict, both with common law which has criminalised homosexuality
and sodomy, and with section 116 which prohibits the Commonwealth
legislating against the free exercise of any religion. The religion of the day was
Christianity it its various forms: Catholic, Orthodox, Protestant etc. all based
upon the Holy Bible. All common law commentators know that Christianity
and common law are intrinsic to one another. The position of the Holy Bible,
and therefore of the Christian religion, is that homosexuality and sodomy are
not natural, are abominations, are rebellions against a holy God and therefore
should not be tolerated. This has not changed. The federal parliament and
likewise the State parliaments, therefore cannot pass legislation which has
purpose and intent to not-discriminate against homosexuals /homosexuality
/sodomites. This is recognised by advocates for gay-law reform as a significant
hurdle to overcome. In part this has been overcome by intentionally not
defining either relationship or gender in such anti-discrimination Acts, of which
the Tasmanian Anti-Discrimination Act 1998 is one example. Further, it follows
that as the Commonwealth Constitution is law and can only be changed by
referendum by the people, who are the commonwealth, this will be the law until
the people decide to change it. Further, as part of this debate, the federal
parliament has no lawful authority to legislate the acceptance of “same-sex
marriage”. If such legislation was passed it would be an invalid Act that
contravenes section 116 as it would inhibit the religious freedom of the majority
of Australia’s population, of whom 60% identified as Christian in the last
census and of whom millions are practicing Christians who believe marriage is
only between one man and one woman. The only legislation the federal
parliament can pass is that which upholds the common law-biblical definition
of marriage, such as currently defined in the Marriage Amendment Act 2004.
4. Professor M Otlowski, is not a sworn justice. Any opinion expressed by her regarding
this matter is not law, and is her opinion only and cannot as such be enforced. Only if such
opinions were taken through proper judicial process in the courts of Australia and only
then subject to a ruling from the courts in favour of those opinions expressed, would they
hold any weight in law.
5. The Anti-Discrimination Tribunal is not a court, nor can it make enforceable rulings.
According to the Anti-Discrimination Act 1998 (Tas) section 90, the Tribunal must file any
ruling it desires to be enforced into the Supreme Court of Tasmania. Subject to the matter
being assessed by the Supreme Court to be lawful (otherwise the Supreme Court and
Tribunal would be seen to be perverting justice and in contempt of court), then and only
then could the Tribunal’s ruling become a lawful and valid instrument.
6. Since the Magistrates Court has already ruled in matter 35802/13 to dismiss charges
under the Commonwealth Criminal Code Act 1995 section 471(12), the Supreme Court
would be required by law to uphold that decision, and would therefore have no basis to
accept any filing from the Anti-Discrimination Tribunal in finding the “Homosexuality
Stats” flyer to be ‘offensive’ when it has already been acquitted of being ‘offensive’ in the
Magistrates Court.
James Durston
79 West Tamar Hwy, Trevallyn, Launceston, TAS 7250
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Telephone: 040521079579
email: no1ubc@gmail.com
7. M Otlowski has therefore ruled in ignorance of both fact and law and in siding with the
complainant without any lawful validity is in danger of perverting justice against the
respondent.
8. As the respondent, I had complete right to issue the flyers and as such I don’t have to
apologise for them. Accordingly, I will not be following the directives of M Otlowski
which have no authority in law:



I will not be apologising to Mr Williams.
I will not be publishing retracted statements in The Mercury.
I will not be paying any fine that may be imposed against me by the Tribunal.
9. If any further action is taken against me in this matter, I will take the following legal
action:


I will appeal the matter all the way to the High Court of Australia
I will place criminal charges against M Otlowski for perverting justice according to
the Criminal Code 1924 (Tas), section 105, in addition to seeking civil damages.
Criminal Charges
Criminal Code Act 1924 (Tas)
105. Perverting justice
Any person who does any act or makes any omission with intent in any way
whatever to obstruct, prevent, pervert, or defeat the due course of justice or the
administration of the law, is guilty of a crime.
Charge:
Perverting justice.
I will initiate civil charges against M Otlowski, Robert Williams and Robin Banks for
defamation, harassment and intimidation with the intent to cause myself personal injury.
Civil Charges
Defamation, Harassment and Intimidation with the intent to harm.
10. Further, any future correspondence I receive regarding this matter and have to attend
to, will accrue an invoiced charge of $120 per letter (electronic or otherwise), and $60 per
phone call.
Date:
James William Durston
James Durston
79 West Tamar Hwy, Trevallyn, Launceston, TAS 7250
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Telephone: 040521079579
email: no1ubc@gmail.com