RELIGIOUS FREEDOM: by Roslyn PhillipsNews Weekly
When truth is no defence
, February 3, 2007
Two Christian pastors, prosecuted and fined heavily under Victoria's Racial and Religious Tolerance Act for allegedly vilifying Islam, learned just before Christmas whether their appeal before the Victorian Supreme Court was successful. Roslyn Phillips reports.The court-room in the Victorian Supreme Court of Appeal in Melbourne's Lonsdale Street was hushed. At 9:30 am on Thursday, December 14, 2006, three judges entered and handed down their judgement on the appeal by two Christian pastors against a finding by Judge Higgins of the Victorian Civil and Administrative Tribunal (VCAT) that they had vilified Muslims - mainly in a 2002 seminar on Islam conducted by Pastor Daniel Scot, but also in a Catch the Fire Ministries newsletter and website article published by Pastor Danny Nalliah.
The three Supreme Court judges - Nettle, Ashley and Neave - upheld the pastors' appeal. They said Judge Higgins of VCAT had made errors in interpreting the law in 2004.
However the judges did not dismiss the Muslims' complaint. Instead they sent the case back to VCAT, to be reheard on existing evidence by a different judge.
Justice Nettle in particular drew a clear distinction between inciting hatred against Muslim beliefs about the Koran, and inciting hatred against Muslims. He said that Judge Higgins had not adequately acknowledged substantial parts of the seminar, newsletter and website article which encouraged listeners and readers to love and respect Muslims and their culture.
In 2004, Judge Higgins had decided that the pastors broke the law, in part because of his view that their presentations about Islam were unbalanced. However, two of the Supreme Court judges said that it was irrelevant whether or not the pastors' presentations were balanced or correct, and the other judge implied that objective truth was mostly irrelevant to the case.
Justice Nettle said that "statements about the religious beliefs of a group of persons could be wholly true and completely balanced and yet be almost certain to incite hatred of the group because of these beliefs" [para 36].
Justice Ashley said: "Both sides, but particularly the appellants, seem to have made the trial an attempted enquiry into the objective truth or otherwise of the statements made about Islam …. Whilst such evidence was not altogether irrelevant … it seems to have become a principal battleground; and that was not justified." [para 121].
Justice Neave said: "It is … possible that a person may make true statements about the characteristics associated with a religion, e.g., 'Muslims have a duty to proselytize' which may, in particular circumstances, incite hatred. Section 11 of the Racial and Religious Tolerance Act … does not provide that the fact that the words are true takes them outside s.8 of the Act." [para 178].
In effect, Justices Nettle and Neave were saying (and Justice Ashley did not disagree) that laws against inciting hatred, contempt or ridicule can make it an offence to tell the truth where the truth would portray a religion or race in a negative light.
The outcome of the new VCAT hearing cannot be predicted with any certainty. The pastors' trauma may be far from over.
The Supreme Court judgements are the first time such a senior court has commented on the meaning of section 8 of the Racial and Religious Tolerance Act, which makes it an offence to "engage in conduct that incites hatred against, serious contempt for, or revulsion or severe ridicule of, that other person or class of persons".
The judgements have created great interest throughout Australia, because most states have vilification laws against "inciting hatred, serious contempt or severe ridicule" on the ground of race or religion and/or sexuality and sometimes other grounds as well.
Now we have a much better idea of what "inciting hatred", etc., actually means in a tribunal or court of law. Many Australians would be disturbed to know that it could be an offence to tell an unpleasant truth about a person or group on the ground of their race, religion or sexuality.
It was only last year that defamation laws throughout Australia were brought into line, with all of them now stating that "truth or substantial truth" is a defence against any allegation of defamation.
It is very strange, then, that anti-vilification laws - which are like defamation laws - do not enshrine the same principle: that truth is a defence.South Australia next
For South Australians, the problem may become particularly acute in the near future. The Equal Opportunity (Miscellaneous) Amendment Bill is due to be debated in the SA Parliament when it resumes in February.
Clause 61 of this Bill has wording similar to section 8 of the Victorian Racial and Religious Tolerance Act. The prohibited grounds for "inciting hatred, serious contempt or severe ridicule" in clause 61 of the SA bill do not include religion, but do include race, nationality, ancestry, sex, marital status, sexuality, chosen gender, age, disability, pregnancy, potential pregnancy, sexuality, profession or lawful occupation, area of residence, religious appearance or dress and others.
No other state has laws against vilification (called "victimisation" in the SA bill) which prohibit inciting hatred on so many different grounds.
The Victorian Supreme Court ruling means that Clause 61 of the new SA bill could be used to prohibit speaking the truth in public about the merits and demerits of marriage or divorce, gender differences, abilities at different ages, various pregnancy choices, different forms of religious dress, homosexual behaviours and parenting qualities, certain disabilities, certain lawful occupations, living in certain suburbs, etc.Crime to speak the truth
South Australians do not want a law which undermines free speech to the extent of making it a crime to speak the truth. A recent opinion poll conducted in Adelaide found that 95 percent of respondents agreed or strongly agreed that "people should always be allowed to tell the truth publicly without fear of prosecution".
Most South Australian citizens have never heard of the Equal Opportunity (Miscellaneous) Amendment Bill. SA media columnists and commentators - who could easily suffer complaints against them if clause 61 of the Bill is passed - are apparently ignorant too.
While there are exemptions for artistic, academic and scientific (but not religious) purposes, there is no guarantee that such exemptions will apply in particular cases. A religious purpose exemption in the Victorian law did not help the two religious pastors.
The SA Attorney-General needs to go back to the drawing board with this bill!- Mrs Roslyn Phillips, B.Sc Dip Ed, is research officer for the Festival of Light Australia.