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Draft discrimination bill draws unfair fire

By Alan Austin - posted Thursday, 31 January 2013

We should not be surprised at vigorous attacks on governments or oppositions in an election year.

But should we accept forays which generate destructive fear and loathing where nothing fearful or loathsome exists? Should we tolerate attacks based on falsehoods and misrepresentation?

A campaign of distortion and misinformation inThe Australian is now underway. An article on Wednesday warning of a "tragic outcome" and "another stolen generation – a generation of young people and children who have had their freedom of speech stolen from within their classrooms" – contains highly questionable assertions.


The polemic by teacher at Melbourne's Trinity Grammar, Christopher Bantick, is titled 'Censorship dressed up is denial of free speech'. The fear it foments of reforms to Australia's anti-discrimination laws is based on Bantick's analysis of the 2011 Federal Court decision in Eatock v Bolt.

Bantick begins with an observation on the Andrew Bolt racial discrimination matter by Opposition frontbencher George Brandis that "we are not free as journalists, commentators and ordinary citizens to make critical remarks in the course of ordinary political exchange".

Why quote the Opposition? Why not quote Justice Bromberg's actual judgment? Bromberg, in fact, says the opposite:

"At common law, fair comment exists as a defence to a defamatory comment in order to facilitate freedom of expression on matters of public interest," the judge affirmed. "It is of importance that on social and political issues in particular, people should be able to express their opinions. Those opinions will at times be ill-considered. They may be obstinate, exaggerated or simply wrong. But that, of itself, provides no valid basis for the law to curtail the expression of opinion." [Paragraph 353]

Bantick asserts "The fallout of the Bolt decision continues to be felt in lecture theatres and classrooms."

No, it doesn't. Any fallout of fear and anxiety is the result of the consistent misreporting of the Bolt judgment in several Murdoch publications ever since verdict day, principally in The Australian. There is no basis for "fallout" in the judgment itself. The opposite is the case.


"The fair comment defence at common law extends to protect opinions, even those that reasonable people would consider to be abhorrent," Bromberg insisted.

Bantick continues, "If you express an opinion that under the act can be taken as offensive or insulting, even though it was not intended to be so, this is sufficient grounds for action. It may just come down to tone."

And again: "If I go into my classroom and in the course of my lesson I use a tone that is apparently offensive or insulting to any racially identifiable group, then I am breaking the law."

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About the Author

Alan Austin is an Australian freelance journalist currently based in Nīmes in the South of France. His special interests are overseas development, Indigenous affairs and the interface between the religious communities and secular government. As a freelance writer, Alan has worked for many media outlets over the years and been published in most Australian newspapers. He worked for eight years with ABC Radio and Television’s religious broadcasts unit and seven years with World Vision. His most recent part-time appointment was with the Uniting Church magazine Crosslight.

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