I imagine that certain parts of the blogosphere will be all over yesterday's result in the "Catch the Fire" vs Islamic Council case.
Judge Michael Higgins, of the Victorian Civil and Administrative Tribunal, yesterday ordered Christian group Catch the Fire Ministries, Mr Scot and Mr Nalliah to publish apologies for comments made at a Melbourne seminar in March 2002, and in a newsletter and website article.
Judge Higgins said the pastors were otherwise of good character, but their passionate religious beliefs caused them to transgress the law. He ordered them to publish apologies on their website, in their newsletter and in four advertisements in Melbourne newspapers and to promise not to repeat the vilification anywhere in Australia. But this order could be defied as early as Monday, when Mr Scot begins a two-week seminar on Islam in Brisbane...
Judge Higgins said financial compensation would not be appropriate in yesterday's case, but a public apology would. He ordered Catch the Fire and the pastors to insert the same advertisement - using words set by the tribunal and of specified size - in The Age and Herald Sun on two Saturdays and Mondays before August 31. (This would cost $25,200 in The Age and $43,490 in the Herald Sun.)
The text of the decision (referred to as a "remedy") is on the VCAT site here.
Scot and Nalliah were prosecuted under section 8 of the Racial and Religious Tolerance Act 2001.
If I might outline s8 (and s11, which limits it):
8. Religious vilification unlawful
(1) 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.
Note: "engage in conduct" includes use of the internet or e-mail to publish or transmit statements or other material.
(2) For the purposes of sub-section (1), conduct—
(a) may be constituted by a single occasion or by a number of occasions over a period of time; and
(b) may occur in or outside Victoria.
and
11. Exceptions—public conduct
A person does not contravene section 7 or 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; or
(ii) any purpose that is in the public interest; or
(c) in making or publishing a fair and accurate report of any event or matter of public interest.
I would imagine that s11 would be a reasonable defence if Catch the Fire had been simply outlining parts of the Koran they thought were objectionable and commenting on them, as under (b) and (c). I'm immediately suspicious of the "you can't say anything critical of Islam any more" line run by certain conservatives, because clearly s11 is designed to protect criticism in good faith or "in the public interest".
Meanwhile, what penalties are imposed? If it were "serious religious vilification" as defined elsewhere in the Act, they'd be looking at $33,000 in fines as an organisation and up to 6 months in jail or $66,000 or both. Those are the maximum penalties outlined in s24. But this is just "ordinary" vilification.
The Tribunal's power to act comes from s23, which makes offences under the RART Act count as offences under s105, and hence s136, of the Equal Opportunity Act 1995:
136. What may the Tribunal decide?
After hearing the evidence and representations that the parties to a complaint desire to adduce or make, the Tribunal may—
(a) find the complaint or any part of it proven and make any one or more of the following orders—
(i) an order that the respondent refrain from committing any further contravention of this Act in relation to the complainant;
(ii) an order that the respondent pay to the complainant within a specified period an amount the Tribunal thinks fit to compensate the complainant for loss, damage or injury suffered in consequence of the contravention;
(iii) an order that the respondent do anything specified in the order with a view to redressing any loss, damage or injury suffered by the complainant as a result of the contravention; or
(b) find the complaint or any part of it proven but decline to take any further action in the matter; or
s. 136
(c) find the complaint or any part of it not proven and make an order that the complaint or part be dismissed.
So the Tribunal has pretty broad powers, and probably hasn't exceeded its ambit here. And it doesn't seem to me that the legislation is so flawed that it doesn't give defendants a reasonable defence.
It's like, say, copyright. We generally accept that there should be limits on what we can do in terms of reproducing someone else's work without their permission (which protection the law achieved by the invention of "copyright"), because we know that the law is written with reasonable exceptions. I can reproduce parts of a Bolt column without being sued under the Copyright Act because of the "fair dealing" provisions. Without those provisions, I'd suggest that the Copyright Act would be a major restraint of free speech and democracy, because you'd never be able to quote someone else's words without their permission.
Likewise, many of us would probably agree that there are limits to what you can say about other people in public. The traditional limits are defined by the laws of defamation, which until recently did not apply to religious groups. This Act is designed to ensure that a young firebrand ex-Austrian can't stomp around inciting his followers to burn down synagogues, for example.
The reason I can accept such legislation is because there are exceptions in terms of "good faith" and "reasonable" conduct. If some part of the Koran really bothers me (and there probably are large parts of it that do) then I should be perfectly entitled to discuss it and its flaws in public. That's perfectly legitimate, and from the Act appears to remain perfectly lawful.
What isn't lawful is inciting "hatred against, serious contempt for, or revulsion or severe ridicule of, [an] other person or class of persons." Seems reasonable to me. If I condemn part of the Bible, say Deuteronomy, as being somewhat backward and disturbing (the "make a raped woman marry her rapist" verses, for example), I'm not causing "serious contempt" or "severe ridicule" of Christians. I'm responding to the text, not the people who believe in it.
Which leads me to the present matter.
The judge remarked:
The circumstances where a person desires to, and does express an opinion upon a subject matter constitutes his prima facie right to freedom of expression. The difficulty with regard to the legislation is that it is not an easy task to determine whether an individual has gone too far, and has breached the relevant provisions of the Act, including those which specifically exempt what would otherwise be a breach by reason of s11. This section deals with the fact that s8 is not contravened if a person can establish that the conduct was engaged in reasonably, and in good faith, for any genuine religious purpose or purpose that is in the public interest.
Furthermore, there is no case law in this State which assists a citizen to determine when "the line has been crossed".
Nonetheless:
VCAT found the seminar was not a balanced discussion, that Pastor Scot presented the seminar in a way that was essentially hostile, demeaning and derogatory of all Muslim people, their God, their prophet Mohammed and in general Muslim beliefs and practices, that Pastor Scot was not a credible witness and that he did not act reasonably and in good faith. VCAT found the statements by Pastor Nalliah in the newsletter were likely to incite hatred towards Muslims and sought to create fear against Muslims, that Pastor Nalliah was not a credible witness and that he did not act reasonably and in good faith. Finally, VCAT found that the statement by Mr Braidich made no attempt to distinguish between mainstream and extremist Muslims, and incited hatred and contempt towards people who are Muslims...
A copy of the original decision is here and outlines what precisely the pastors said and did which breached section 8. Such as:
"(a) Described the "plans of the enemy to take the land (Australia) & stop it from coming into God's full will and purpose in this hour" and implied the "enemy" specifically included or referred to the "faith of Islam";
(b) Foreshadowed that Australian Christians would "lose your homeland to a foreign religion and its [sic] people", and implied the foreign religion was Islam and the people Muslims;
(c) Predicted that Muslims, by their marriage and birthing practices will rapidly increase as a percentage of the Australian population and overtake "Aussies";
(d) Predicted that Muslims will "infiltrate" all aspects of Australian public and religious life with the specific purposes of stopping "the name of Jesus being mentioned" and spying on western governments;
(e) Stated that "the motto of the Muslim is to convert the whole world to Islam, by peace or violence" and suggested that Muslims will engage in the same kind of violence in Australia as engaged upon by those responsible for the attacks on the Pentagon and the World Trade Centre on September 11 2001;
etc. (There's quite a list.)
So, in that context, I'd suggest the following two things: it wasn't unreasonable for the Catch the Fire people to be ordered to apologise; and the Racial and Religious Tolerance Act isn't extreme or disturbing. (Unless you think defamation law as a whole is extreme or disturbing.)
Which reminds me, since the whole point of this legislation is to bring the sort of protection offered by defamation law to racial and RELIGIOUS groups, aren't the fundamentalist Christians kind of shooting themselves in the foot by opposing it? Aren't they a religious group? Doesn't this legislation protect them, too, where previously they weren't protected?
I'm not sure they've thought this all the way through.
