As reported by us last week the original verdict of guilty passed by Judge Higgins of the Victorian Civil & Administrative Tribunal (VCAT) on the two Christian Pastors, Danny Nalliah and Daniel Scot for the vilification of Islam, was overturned on appeal to the Victorian Supreme Court and a review of the case by a new Judge ordered for next year. No new evidence or witnesses will be allowed and the new Judge must make his decision based solely on the evidence already given at the original hearing plus the comments of the Supreme Court Judges.

 

Several aspects of the Supreme Court ruling was worthy of further comment and so we expand a little more on some of the Judges reasons for upholding the appeal and overturning the original verdict.

 

The main reasons for upholding the appeal appear to have been that Justice Higgins made some considerable errors of judgement in interpretation of what constituted vilification. Some of these interpretations appear to arise from accepting minority opinions of previous judgements rather than majority opinions.

 

Justice Nettle says Judge Higgins' views on the accuracy or inaccuracy of Pastor Scot's views on Islam and the Quran were not relevant to the case, noting:  "In my view it was calculated to lead to error for a secular tribunal to attempt to assess the theological propriety of what was asserted at the Seminar.  He also stated "The Tribunal's concentration on the issue of whether Pastor Scot's statements represented a "balanced" presentation of the religious beliefs of Muslims, and the Tribunal's conclusion, based on Father McInerney's opinion, that they did not, appear to have resulted in the Tribunal disregarding significant aspects of Pastor Scot's statements which, at least arguably, went a long way to ameliorating any risk of inciting hatred of Muslims (even if they did nothing to redress the imbalance perceived by Father McInerney).

 

Justice Nettle then listed 14 things Daniel Scot "DID NOT SAY" that Justice Higgins said he had said. He also mentioned a number of things that Daniel Scott was criticised for saying that were actually quotes from the Qu'ran or where he quoted other peoples statements.

The Appeal judges also suggest that the 'audience' to which a statement is made should be taken into consideration. Justice Nettle  noted that Judge Higgins paid insufficient attention to Daniel Scot's emphasis on the need for his audience to love Muslims, to show sensitivity for Muslim culture and respect for the Quran and Mohammed. He said that too little attention was paid to the last third of the seminar which dealt with loving Muslims and how to befriend them to reach them for Jesus Christ.

 

Justice Nettle said at one point: "I have listened to the tape recording of the Seminar...  Unlike [Judge Higgins], however, I was unable to perceive from the tape anything in the manner of Pastor Scot's delivery which rendered his statements more likely to incite the audience to hatred and other relevant emotion of or towards Muslims.  To the contrary, as it seemed to me, what one hears is a speaker who, although endowed with an admirable command of the English language, speaks it as a second language with all the difficulties which that sometimes entails.  I hear a degree of nervousness in delivery, a pattern of speech which is idiomatically incongruous and consequent double entendre which the speaker sounds not to have intended. Admittedly, his style is given to ridicule in places, and the ridicule results in cynical laughter at places.  But on any analysis his plea to love Muslims and to "minister" to them comes across as sincere enough as do the sounds of his audience's reaction to it."

While Judge Higgins paid great attention to the hurt feelings of the three Muslims who attended the seminar, Justice Nettle says that "the affront to the feelings of the Muslim witnesses was largely if not wholly irrelevant. The concentration needed to be on the members of the audience who were not Muslims.  What demanded to be assessed was whether the effect of the injunctions to love and to witness to Muslims was sufficient to prevent hatred and other relevant emotion by the non-Muslims towards Muslims.

"In fact, the Seminar was replete with statements by Pastor Scot, to which neither Mr Thomas [a Muslim complainant] nor [Judge Higgins] made any reference, favourable to Muslims and ex facie calculated to persuade an audience of non-Muslims to love and 'witness' to Muslims (despite Pastor Scot's perception of the shortcomings of Islam)."  Justice Nettle went on to quote substantial parts of the seminar where Pastor Scot speaks of Muslims and their culture in positive terms.

 

Justice Nettle's judgement appears to be a damning indictment of Judge Higgins' original decision to convict the pastors in December 2004.  Justice Nettle pointed out that Judge Higgins in effect had failed to recognise the difference between hatred of the sin and hatred of the sinner, and did not acknowledge that it is possible to criticise certain beliefs without inciting hatred against those who hold those beliefs.

 

Justices Neave and Ashley have written briefer judgements than Justice Nettle, and while supporting his main conclusion, had varying opinions on some points.  Judge Ashley was particularly critical of the conduct of the pastors' VCAT defence, which in his view took up too much time in irrelevant theological debate. 

Unfortunately the Judges found no conflict between the Racial & Religious Tollerance Act and the Australian Constitution. Had they found otherwise it would have meant the the law itself would have had to have been repealed as unconstitutional, a result the Pastors and their supporters had been hoping for.

 

Thanks to Peter and Jenny Stokes of Saltshakers and Roslyn Phillips from the Festival of Light whose assessments of the case provide the majority of the comments in this report.

Mrs Roslyn Phillips, Research Officer for the Festival of Light in Australia says that South Australia could face the same trauma if the South Australian Equal Opportunity (Miscellaneous) Amendment Bill 2006 - due for continued debate on 6 February 2007 - is passed.

Clause 61 of this bill would introduce a new South Australian offence of "victimisation" - in reality. vilification, similar to the definition in the Victorian Racial and Religious Tolerance Act: "engaging in a public act inciting hatred, serious contempt or severe ridicule of a person or group" on any of the many unlawful grounds of discrimination in the Equal Opportunity Act.

Unlike in Victoria, religion is not one of the unlawful grounds in South Australia - but almost everything else you can think of, and many things you haven't thought of, are included.  No other state with anti-vilification laws has so many prohibited grounds for vilification.  Marital status and sexuality vilification would be banned under this bill and the South Australian Commissioner for Equal Opportunity told a delegation from Festival of Light Australia recently that she would NOT automatically dismiss complaints against doctors who publicly warn of health risks of the homosexual lifestyle, or pastors who expound Bible passages which condemn divorce or homosexual behaviour.

Legal advisers to the South Australian Attorney-General told the delegation that truth would not be a defence against such complaints, nor would there be an exemption for acts with a religious purpose.

Christian schools who discriminate in employment against practising homosexual teachers would be required to publicise that policy and report it to the Commissioner, who would be empowered by the bill to publicise such schools and "name and shame" them.  No school could discriminate against pupils on the ground of marital status or sexuality; Christian schools could be prohibited from teaching biblical sexuality since such teaching could be deemed to incite hatred or contempt for those who do not practise it.

The Commissioner would be empowered under the bill to investigate, without approval by the Tribunal or the Attorney-General, any matter of her choice, even where no one has lodged a complaint.  Even if such complaints are dismissed, there is no compensation for the lost time, stress and legal costs incurred in conciliation proceedings. 

 

This issue is not yet on the radar of most media but it is time for South Australian Christians to make a stand by writing letters to the editor, and their local State Member of Parliament, to help bring this bill to the attention of people who need to understand that our freedom of speech, freedom of association and freedom of religion are seriously under threat.

A former Parliament House kitchen hand has dashed Labor hopes of Upper House control and given the Greens their third seat after a recount of votes was undertaken in three regions.

And Democratic Labor Party candidate John Mulholland, who enjoyed 15 minutes of political fame when he thought he had won a seat, had it taken rom him when the Victorian Electoral Commission (VEC) recount snatched away his hold on an Upper House seat in the Northern Metropolitan region and gave it to ALP candidate Nazih Elasmar.

But Bracks Government celebrations will be tempered by their loss of the fifth seat in the Western Metropolitan region. In an unexpected result, the recount gave the Greens' Colleen Hartland the seat, tipping out the ALP's Henry Barlow - and Steve Bracks' hopes of control of the House.

The DLP's Peter Kavanagh was confirmed as the fifth elected candidate in Western Victoria region and today indicated he would support Labor in appreciation of its preferencing the DLP over the Greens.  The recount gives the Bracks Government 19 seats in the Upper House, the Liberals 15, Greens three, Nationals two and DLP one.  The result means that Labor will have to rely on the support of the Greens to get legislation passed in the Upper House.

 

The Bracks Government was easily returned in the election for the House of Representatives and retains power for a further term.