Catch the Fire Ministries v Islamic Council of Victoria Inc: Free speech wins – just

By skepticlawyer

We supporters of free speech can thank our lucky stars that the drafters of Victoria’s Racial and Religious Tolerance Act 2001 were appallingly bad at their craft. In cobbling together the criminal law conception of ‘incitement’ with the law of defamation’s ‘ordinary reasonable reader’, they have produced a statute so incapable of interpretation that Pastors Scot and Nalliah have been saved – at least in the Court of Appeal – from adverse findings under it.

At bottom, this case is very simple. Two pastors – one of them a Pakistani Christian – conducted a seminar on the ugly bits of Islam. The Islamic Council of Victoria sent stooges along to the seminar to record their comments, and then ran off to the Tribunal alleging religious vilification (aka blasphemy). The Islamic Council succeeded before the Tribunal, which ordered the two pastors to abase themselves in public in similar terms to corporations caught out under s52 of the Trade Practices Act – apologies in neon lights, retractions and undertakings not to do it again.

The Victorian Court of Appeal was asked to rule on two core claims. First, did the seminar and articles Pastors Scot and Nalliah presented – concerning the religious beliefs of Muslims – incite hatred against, serious contempt for or revulsion or severe ridicule of Muslims on the ground of religious belief under the Racial and Religious Tolerance Act 2001, specifically ss. 8, 9 and 11?

Second, Catch the Fire contended that the act was unconstitutional, violating the implied freedom of communication about government or political matters present in the Constitution as articulated in Lange.

In brief, Catch the Fire won on the first point and lost on the second, which means their ‘win’ – however gratifying for lovers of liberty – was only partial. To a degree, their win reflects loose drafting – the legislation is horrendous. The Court of Appeal – despite acidic remarks from two of the three Justices (Nettle JA and Neave JA) – has sensibly left the second issue to the High Court, should the Islamic Council of Victoria have the balls to seek leave to appeal. For those interested, the full reasons are here. All three justices wrote separate reasons, although Ashley JA’s comments are very brief. Nettle JA is very good on the first issue, while Neave JA covers the constitutional issues with admirable brevity and clarity.

If nothing else, the litigation reveals how bad the legislation is, and how easy it is to be caught under its provisions. Nalliah and Scot had done little more than the standard Skeptical attack on Christianity – they’d gone through the Koran and mined out the egregiously violent bits, and then cracked a few lame jokes. If they are to be caught under this legislation, where does that leave a (potential) Australian Borat or Rowan Atkinson?

The third difficulty with the Tribunal’s reasoning, as I perceive it, is that the Tribunal’s failure to observe the distinction between hatred of beliefs and hatred of adherents to beliefs has resulted in the Tribunal deciding the matter on the basis that the Seminar was not a “balanced” discussion of Muslim beliefs. Hence, the significance of the Tribunal’s observation, already referred to, that: ‘The Seminar was not a balanced discussion. It was a process of taking literal translations from the Qur’an, and making no allowance for their applicability to modern day society…’

Woinarski QC attempted to argue before the Court of Appeal that hating Muslim beliefs amounted to hating Muslims. As Nettle JA shows in the above quotation, this did not wash. We may live in a secular country these days, but most of us are capable of following a humanist version of St Augustine’s advice: love the sinner and hate the sin. Nettle JA had clearly become quite tired of people attempting to paint their religion in a wholly positive light:

Whether his statements about the religious beliefs of Muslims were accurate or inaccurate or balanced or unbalanced was incapable of yielding an answer to the question of whether the statements incited hatred or other relevant emotion. Statements about the religious beliefs of a group of persons could be completely false and utterly unbalanced and yet do nothing to incite hatred of those who adhere to those beliefs. At the same time, 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 those beliefs. In any event, who is to say what is accurate or balanced about religious beliefs?

More disturbing were his lengthy findings of fact – the Tribunal had simply proven unable to sift gold from the dross, and had made many factual errors.

It is perhaps worth pointing out that a Tribunal is a ‘quasi-judicial’ body. It does not have a court’s authority, and is often unbound by the laws of evidence, preferring a truncated version, or a series of waffly ‘guiding principles’. It is instead a creature of Adminstrative Law, something lawyers have created in response to the depredations of government on our lives. When government gets it wrong, the reasoning goes, there must be some way of holding it to account. The response has been the rapid encrustation of Adminstrative Law on our institutions – Tribunals, Panels, Commissions. All are designed – using often clumsy mechanisms best suited to courts of law – to protect us from the state. That said, a Tribunal’s rulings – unless challenged – solidify into ‘law’ in much the same way as a court order. The net effect of this win is that Nalliah and Scot go back before the Tribunal, but before a different judge and with the Court of Appeal’s careful (and favourable to their case) analysis of the statute in hand. The result is therefore likely to be very different.

Nettle JA also had some pointed observations to make about common cultural values. They are worth pondering even among libertarians, who tend to advocate a large immigration intake and concomitant diversity as a matter of course. Everything – no matter how worthy – carries a cost:

It is not all that long ago that the standards of the hypothetical reasonable person were spoken of in terms of the man on the Clapham omnibus. So long as the population of this country was of predominantly Anglo-Celtic extraction, that was perhaps as apposite here as it was in United Kingdom. But today, as in the United Kingdom, our society is different. It is now a polytopic multicultural society and we recognise, and indeed the Preamble to the Act makes clear, that the standards of reasonable persons are the standards of an open and just multicultural society. Accordingly, where as here the conduct in question consists in the making of statements for a religious purpose, the question of whether it was engaged in reasonably for that purpose must be decided according to whether it would be so regarded by reasonable persons in general judged by the standards of an open and just multicultural society. Such an assessment may not always be easy. A society which consists of varied cultural groups necessarily has the benefit, and bears the burden, of a plurality of standards. Hence, in this society, to speak of persons in general is to speak of persons who in large part have different standards. And to speak of what is reasonable among them it is to invoke an idea which as between them is to a considerable extent informed by different standards. Nevertheless, experience has taught us that reasonable members of an open and just multicultural society are inclined to agree on the basics.

Only Neave JA – a woman commonly credited with saving generations of property law students from themselves through her uniformly excellent textbooks – considered the second issue in any depth. Her reasoning is clear and precise. It also reveals the limitations of ‘implied rights’, and cries out for an Australian equivalent to the US First Amendment. In short, the implied freedom found by the High Court in cases like Australian Capital Television and Lange only goes this far:

In Lange, the High Court made it clear that the implied freedom could be inferred from the provisions of the Constitution which provide for the institutions of representative and responsible government. In consequence, the extent to which communication on political and governmental matters will be protected from legislative intervention is ‘limited to what is necessary for the effective operation of that system of representative and responsible government provided for by the constitution’.

Religion is therefore not sufficiently political and not sufficiently burdened with running the country.

Rejoice in this victory – the Court of Appeal ruling is very good – but hope at some point for this beast to finish up in the High Court. Even better, hope for a constitutional guarantee for freedom of speech.

Hat tip to CL, who alerted me to the fact that this ruling had been brought down.

UPDATE: RL reminds me that I should make this point clearer – the Court of Appeal has set aside the finding of the VCAT Tribunal and ordered a new hearing under a differently constituted Tribunal.


  1. rog
    Posted December 19, 2006 at 9:58 am | Permalink

    I think this rather proves the point, that with free speech reasonable outcomes are achievable.

  2. Posted December 19, 2006 at 10:53 am | Permalink

    Thanks very much everyone, and yes rog, I agree with you.

    You should all give yourselves a pat on the back 🙂

  3. Jason Soon
    Posted December 19, 2006 at 10:55 am | Permalink

    I think I will open an abortion thread but I’ll wait till after X’mas.

  4. Posted December 19, 2006 at 11:16 am | Permalink

    Warning, Jason – another Thread of Doom will be in the offing.

    But not before Xmas, no.

  5. Bring Back CL's Blog
    Posted December 19, 2006 at 11:17 am | Permalink

    SL, who cares if it is off-topic. Don’t become like LP!

    Whyisitso, strong views on abortion has a few johnnycomelatelys on it!!

    Jason ,
    are you introducing a pregnant pause

  6. GMB
    Posted December 19, 2006 at 11:25 am | Permalink

    If Fyodors not here it won’t go to thread of doom level.

    I think I can make my basic methodology prevail. And it allows a spectrum of outcomes. With either a very long window of opportunity or a very short one.

  7. Jason Soon
    Posted December 19, 2006 at 11:56 am | Permalink

    graeme – check yr email

  8. davidp
    Posted June 12, 2008 at 5:17 pm | Permalink

    Good writeup. Thanks.

    Has the re-hearing happened, and if so, what was its outcome ?

  9. Posted June 13, 2008 at 6:23 am | Permalink

    As far as I’m aware, the matter was remitted to the tribunal and the Islamic Council of Victoria chose not to proceed further.

  10. Posted June 14, 2008 at 11:32 am | Permalink

    How the hell did this morph into abortion?


    incite hatred against, serious contempt for or revulsion or severe ridicule of [insert whoever/whatever here] on the ground of religious belief under the Racial and Religious Tolerance Act 2001, specifically ss. 8, 9 and 11?

    This is entirely ludicrous. Would Bill Hicks be banned for this:

    You ever noticed how people who believe in Creationism look really unevolved? You ever noticed that? Eyes real close together, eyebrow ridges, big furry hands and feet. “I believe God created me in one day” Yeah, looks liked He rushed it.

    Or perhaps his comments viz Catholicism being one of the most ludicrous beliefs ever?

    Part of the way this country deals with difference and potential conflicts is to enter into them playfully. Here’s a joke:

    Friend of mine from Jamaica came to live in Australia had a little trouble figuring out the local ways. This guy is very proud and brooks no shit from anyone.

    Anyway. One day I met him at the pub for a drink and he’d been there a while. When I got there he had a big smile on his face. “I t’ink I finally figured the Australian sense o’ humour mon”, says he.

    “Oh yeah. Howzat?”

    “I com in here before this guy says to me: ‘What you doing here you black bastard?'”

    “Shit you didn’t hit him or anything”

    “No mon I remember you say these t’ings are often not serious, so I say to him: I have a date with your wife”

    “He didn’t hit you?”

    “No he says: I should buy you a beer that woman’s always late.”

    Somewhat utopian perhaps. But there’s a point. A free expression of certain inevitable inter-ethnic discomforts acts like a pressure valve. I can’t count how many times I’ve had some stupid British git correct my use of the word ‘wog’ to ‘Meditereanean please Adrien’ as if using some kind of correct terminology will make everyone love each other.

    Firstly the word wog was pejorative once but as the wogs simply co-opted it it became just another word. It’s the connotation of words rather than the meaning of them in which you’ll find the ‘slur’. Secondly having spent a good part of my formative years in the Mediterreanean I can say I am a wog. And third: how many race riots have they had in the UK?

    This kind of legislation removes all humour and understanding from inter-ethnic communication. We’ll have to replace Fat Pizza with some noddy-land Kumbayah multiculturalism featuring a bunch of ‘ethnic’ groups who behave and think like no-one on Earth. Meantime, whilst the open expression of legitimate culture criticisms is surpressed, the jackboots get polished underground.

    It’d just be so great if parliamentarians had to do a compulsory course called: Most of the time the solution to stupid society IS NOT for you to write another law Stupid.

    You think they might’ve noticed that sometimes people from traditional (theocratic) backgrounds have a little difficulty adjusting to liberal society. Changing the laws to resemble a Sharia state or whatever isn’t going to help.

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