Appeal is favourable for Catch the Fire Ministries

Almost two years to the day after Judge Higgins, Vice President of VCAT, found Catch the Fire Ministries Inc and Pastors Danny Nalliah and Daniel Scot guilty of vilifying Islamic belief and practices during a seminar, and consequently in breach of section 8 of the Racial and Religious Tolerance Act 2001, three judges sitting in the Supreme Court of Victoria, unanimously upheld the appeal against the Tribunal’s decision, effectively unravelling that finding and the basis on which it was constructed.

With the penalties set aside, the court has sent the matter back to the tribunal with the stipulation that it be heard by another judge and without the calling of further evidence.

Furthermore, the Islamic Council of Victoria, which originally brought the complaint, was ordered to meet half the two Pastors’ Appeal costs and may well end up paying a proportion of their tribunal costs as well.

Because each judge gave his or her own judgment, they differ somewhat in detail. Justice Nettle’s judgment is the most comprehensive of the three and the one most favourable to the two pastors.

The basis of the court’s decision lay in the tribunal’s failure to correctly construct and apply Section 8(1), the key clause in the Act which has as its all important clause, “A person must not, on the ground of the religious belief or activity of another person or class of persons, engage in conduct that incites hatred against, serious contempt for, or revulsion or severe ridicule of, that other person or class of persons”.

Justice Nettle faulted the tribunal’s interpretation of Section 8, namely that Pastor Scot was moved by the religious beliefs of Muslims to make statements such that an “ordinary reasonable person” would be inclined to hate Muslims. Rather, the correct interpretation was “whether, having regard to the content of the statements in the context of the whole of the seminar, and to the nature of the audience …, the natural and ordinary effect of what was stated was to encourage the hatred of Muslims based on their religious beliefs”.

The other two members of the court largely agreed with this assessment of Section 8 and so with this corrected understanding of the meaning of Section 8, the matter has been referred back to the tribunal for re-assessment.

A number of other points made for the tribunal’s consideration included:

The tribunal erred in failing to draw a distinction between hatred of the beliefs of a particular religion and the hatred of persons holding those beliefs, though the distinction is not always so sharp.

The tribunal erred in its assessment of the 19 specific instances of supposed vilifying statements made by Pastor Scot, either by misconstruing Pastor Scot’s words (Scot did not say “Muslims are demons”) or failing to take into account other ameliorating material.

The tribunal does not come out at all well in Justice Nettle’s analysis.

The tribunal erred in attempting to assess the theological propriety of what was asserted at the seminar.

Assessing whether the seminar was “balanced” or taking into account whether the Muslim attendees were “offended”, as the tribunal did, was irrelevant. “(T)he question under Section 8 is not whether conduct offended a group of persons, but whether it incites hatred or other relevant emotion of (…) toward that group of persons”.

Altogether Justice Nettle provides a far more sympathetic view of Pastor Scot and his audience, drawing attention to the many exhortations to love and to evangelise Muslims.

Having read Justice Nettle’s judgment, and even allowing for some contrary points of judgment from the other two judges. it is not difficult to consider Pastor Scot to have been very poorly treated by the tribunal, and for that matter, by those churchmen led by the Victorian Council of Churches who were so quick to denounce the two pastors with their intemperate language immediately following the tribunal’s flawed judgment two years ago.

Does the upholding of the appeal mean that the case against the two pastors will now collapse when it is re-assessed by the tribunal?

Probably, although not necessarily on all points. We need to continue to uphold the two pastors in our prayers, praying for a just outcome.

Does the upholding of the appeal mean that Christians now have nothing to fear from the Act?

It is almost certainly true that the tribunal’s mishandling of the matter has made the Act seem more draconian than at least it was meant to be understood and enforced. However, the whole affair highlights the totally unsatisfactory nature of the Act as it now stands.

The Supreme Court's judgment throws into question the appropriateness of having religious vilification issues brought to the Equal Opportunity Commission, a point a number of Church Leaders led by the Presbyterian Church of Victoria and the Australian Christian Lobby were making to the Government in early 2006.

As noted above, the judges pointed out that Section 8 of Act, unlike related paragraphs in the Commonwealth anti-racism legislation, does not focus on whether a group or persons have been offended, but whether hatred or other negative emotions have been incited against such persons. However the Victorian complaints procedure, mediated through the EOC, tends to deal with matters on the basis of offence given.

For example, only those who feel they or their religious group have been “vilified” may made a complaint through the EOC. We now know, as a result of the Supreme Court’s judgment, that the legislation has nothing to do with giving offence.

The civil provisions should therefore be removed in their entirety from the Act so that the only action against incitement to hatred, or better, “to cause physical harm to persons and or property” should proceed through police investigation and a decision by the DPP to prosecute.

The second problem is that the current legislation confuses two very different concepts: vilification and incitement.

The tribunal focused on vilification whereas the Supreme Court has in effect said the legislation is about incitement of a third party to hatred of another person or group of persons. The words “vilify” and “vilification” should be removed from the legislation altogether.

A third problem lies with section 11, the so called exception clause, which reads:

A person does not contravene section 8 if the person establishes that the person's conduct was engaged in reasonably and in good faith,

• (a) in the performance, exhibition or distribution of an artistic work; or
• (b) in the course of any statement, publication, discussion or debate made or held, or any other conduct engaged in, for (i) any genuine academic, artistic, religious or scientific purpose.

From Justice Nettle’s comments on this clause it is apparent that while the seminar might have met a “genuine religious purpose” and been conducted in “good faith”, it is questionable whether it would have met the criteria of being engaged in “reasonably”.

Justice Nettle himself says that an assessment of whether conduct was engaged in reasonably “may not always be easy”. Indeed, what is reasonable to one person may be totally unreasonable to someone else, and to try and judge what is reasonable by “the standards of an open and just multicultural society” as Justice Nettle suggests, will make for a very subjective assessment.

So while the Christian community can be grateful that the appeal was upheld and greater clarity given to the Act, the Act remains deeply troubling and therefore Christians, civil libertarians and all persons of goodwill should be unrelenting in their efforts to gain very substantial modification of this legislation by the Government.