BY DAVID BUCHANAN SC
Various media have carried attacks on the Sydney Convicts for appearing on The Footy Show and Fatty Vautin’s promotion of ACON’s This Is Oz campaign.
Can I give a legal and then a personal point of view? It is not correct to suggest that by appearing on The Footy Show, the Convicts jeopardised Gary Burns’ proceedings against Channel Nine for anti-gay vilification. Either Channel Nine’s broadcast of the Elton Johns -˜skit’ was unlawful anti-gay vilification or it was not. After-the-fact events cannot change the lawfulness of conduct. And neither after-the-fact events nor someone else’s opinion, like that of a Convicts’ spokesperson, provide the basis for a defence under the Anti-Discrimination Act that challenged conduct was done reasonably and in good faith.
Any remedy the Tribunal might grant if it finds the -˜skit’ breached the law is a different matter. If you take the analogy of criminal proceedings, offenders can always make their case better or worse by things they do after their offence, but before they are sentenced.  It then becomes a matter of opinion as to whether the Convicts should have given Channel Nine the chance to mitigate their offence.
I’m more interested in achieving improved outcomes than litigation for the sake of it.  It is better to try to reduce homophobia than simply see homophobes publish an apology in the newspaper.
And there’s a school of thought in discrimination law that suggests there’s no point forcing intransigent offenders to make apologies they don’t want to make.
There is clear evidence the more people are exposed to different sexualities the less homophobic they become. When they get to know us, workmates, family and neighbours discover that trannies and queers are just human like everyone else.
After the Convicts appeared on The Footy Show, people who previously had no idea, and kids struggling with their sexuality, appreciated that footy is played by gay men as well. There are people out there, struggling with their sexuality, who now realise they are not alone.
The This Is Oz campaign is all about reducing homophobia. After Vautin promoted the campaign thousands more became aware of the campaign. There will be people who will think about issues of sexuality differently.
And you never know, as confronting for The Footy Show and Vautin as exposure to homosexuals might have been, there’s a chance they will have moved closer to understanding homosexuality and to understanding that the Elton Johns -˜skit’ may have been more problematic than they previously thought.
No-one’s saying they will be queuing to submit entries at the BGF Bake-Off … but change is a journey and  we’d prefer people start that journey rather than not.
Of course debate is legitimate. And speaking as a lawyer who has represented a community organisation in litigation against homophobes, I have no difficulty with Burns taking proceedings. That’s his right. But it is a mistake for an individual litigant to think s/he is entitled to make decisions for the whole community about the best ways of reducing homophobia in  society, let alone pre-empt what community bodies decide to do.
A more constructive approach would be to appreciate the complementary approaches of sticks and carrots. My guess is the Burns case spurred The Footy Show to do some gay positive media.
Thank you Gary for bringing the case. Thank you Convicts for taking advantage of the opportunity to explode stereotypes.

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