Early in 2002, the Catch the Fire Ministries republished an article on its website and two Christian pastors, Danny Nalliah and Danny Scot, presented a seminar (Scot) and published a newsletter (Nalliah).

The Islamic Council of Victoria (described in the judgment as “an incorporated association that represents Muslims and Islamic societies in Victoria”) made a complaint that this “conduct incited hatred against, serious contempt for, or revulsion or severe ridicule of the Islamic faith” and thus breached s.8 of the Racial and Religious Tolerance Act 2001 (Victoria).

Judgment on the complaint was given in favor of the Muslims and against the Christians by Victorian Civil & Administrative Tribunal (VCAT) on 22 June 2005.

The Christians appealed and yesterday the Victorian Court of Appeal ordered that the matter be sent back to VCAT for further consideration by a different judge.

The Court of Appeal has written a 35,000-word judgment to reach almost no clear decision. On the main issues, Nettle JA said one thing, Neave JA sometimes agreed and sometimes disagreed and Ashley JA agreed with Nettle sometimes and Neave at other times.

The main part of the decision turned on the wrong legal test of incitement having been applied by VCAT, hence the necessity to send the case back for further consideration and application of the correct test as defined by the Court of Appeal (without further evidence).

The Court further held that the provisions of the Act were constitutionally valid in that they did not infringe the freedom of communication on governmental and political matters implied in the Commonwealth Constitution.

The Court furthered decided that the terms of the orders made by VCAT would need to be modified.

One of the remarkable features of the judgement is the personal and religious criticisms made of Pastor Scot by the presiding judge, Nettle JA. In the context of a case involving religious vilification, the comments were alarming.

The complaint against Pastor Scot arose from a presentation he made at a church seminar which was tape-recorded by agents of the Islamic Council.

Nettle JA listened to the tape. He said the following of Pastor Scot:

“I dare say, for example, that there would be a large number of people who would despise Pastor Scot’s perception of Christianity and yet not dream of hating him or be inclined to any of the other stipulated emotions” [33]

“I have listened to the tape recording of [Scot’s] Seminar, although I confess that I lacked the endurance to do it more than once” [63]

“I dare say too that there may well be people who, although not Muslims, would think it a far better thing if people like Pastor Scot kept his ideas about the Koran and Islam, and for that matter Judaism and Christianity, to himself and left others to do likewise. It is at least arguable that the world would be a happier place if he were bound to do so. But that is not the law.” [80]

These are “interesting” comments about a Christian Pastor and his right to practice his religion.

Nettle JA also makes this interesting finding, this time about the law: “it is conceivable that a statement made about religious beliefs in the course of a talkback radio broadcast could run foul of s.8 of the Act while the same thing said as part of intellectual discourse within a seminary or faculty of theology would not have that effect.” [17]

The consequences of the decision to the media in Victoria could be significant.

Peter Fray

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