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.
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