Legal implications of antisemitism win
Brighton sets precedent

Legal implications of antisemitism win

Peter Seidel believes the principles in the judgement will have universal application, which makes the case even more important.

Joel Kaplan (centre) outside the Federal Court of Australia in Melbourne last Thursday. Photo: AAP Image/Diego Fedele
Brighton Secondary College. Photo: Peter Haskin

The Brighton Secondary College judgement has set important legal precedents which will have an impact on Australian law well into the future.

That’s according to Peter Seidel, a partner at Arnold Bloch Leibler who specialises in public interest law.

Five Jewish former students won their case at the Federal Court of Australia earlier this month, where Chief Justice Debbie Mortimer upheld most of their complaints relating to antisemitic behaviour at the school. Their counsel, Adam Butt, took on the case at significant personal financial cost.

Seidel described the judgement as an incredibly distressing read, with the failure of the school’s principal, leadership and teachers to protect the students and their families from antisemitism being truly shocking.

He believes the principles in the judgement will have universal application, which makes the case even more important.

“What it really focuses on is the importance of proactive anti-discrimination protection. As Chief Justice Mortimer stated so powerfully, for school leadership, and any institution, for any entity to be wholly reactive about racially based conduct or any form of discrimination is never enough,” he said.

Seidel said the case sets a legal precedent.

“Definitely, in the important sense that this is a case about failure and the consequences of failure. This is the Chief Justice, no less, saying that failure to take positive action in 2023 may well be discriminatory and I haven’t seen it in such clear, concise, powerful and emphatic language before,” Seidel said.

He said the ruling effectively gives a warning to schools and other institutions where there are minority groups that nothing short of constant vigilance is now required.

“This obviously has implications for and well beyond the Jewish community. There are other minority groups that could also be affected by and benefit from this precedent,” he said.

One aspect of the judgement he drew attention to is the way that protections the school gave LGBTQI+ students were not provided to Jewish students.

“If there is more protection offered to one minority group over another, and the members of that latter group, like the applicants in this case, come within the remit of the Racial Discrimination Act, then that disparity in protection also potentially spells contravention of that act. So there needs to be uniformity,” Seidel said.

He also commended the work of the legal team led by barrister Adam Butt and law firm Cornwalls Lawyers, which took the case pro bono.

“I think pro bono lawyers often have the challenge and the privilege of shining the light into dark corners to expose injustice. I commend those lawyers involved for their bravery and their determination and commitment to go shoulder to shoulder with their clients and to give those clients voice, and those voices were heard and responded to by the Chief Justice,” he said.

Seidel said this was a test case “brought by some very brave young students who are now effectively at the vanguard of anti-discrimination measures that will apply it throughout Australia, in many new and emerging contexts, which is something they should be very, very proud of”.

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