Judge Nettle's findings in the Court of Appeal re Catch the Fire Ministries Inc. vc Islamic Council of Victoria Inc.

(Warning: Another long blog)

I have been working my way through the findings of Judge Nettle who, together with Judges Ashley and Neave, heard the appeal of Cath the Fire Ministries, Daniel Nalliah and Daniel Scot against the findings of Judge Higgins last year in the vilification case vs. the Islamic Council of Victoria.

And I find myself in one of those disconcerting situations of having to admit that I was wrong.

Many of my colleagues--and in fact you yourself, dear reader--will have been repeatedly assured by yours truly (on the basis of my reading of the transcript of the March 2002 Seminar and the findings of Judge Higgins in the original trial) that the two Danny's were indeed guilty of vilifying Australian Muslims.

Having read (most of) Judge Nettle's findings, I realise now that there is a legal distinction (if not a moral distinction) that must be made between vilifying certain religious beliefs and vilifiying adherants to those beliefs. Apparently, it is legally possible to do the former without doing the latter. And this is possibly the case in this instance.

To put the case as Judge Nettle does, Pastors Danny and Danny and CTF ministries did not act in contravention of Victoria's Racial and Religious Tolerance Act. While they may well have vilified Islam, the law is specifically against the vilification of persons or a class of persons, and Judge Nettle holds that there is reasonable doubt in this case as to whether the Danny's were guilty of vilifying Muslims as a class of persons. Moreover, it appears that they were not so much guilty of "incitement to hatred etc.", but rather "incitement" to proselytisation. The latter may still not be palatable to many who are working for interfaith harmony, but it is clearly not against the law.

Judge Nettle finds five reasons to question the original finding of Judge Higgins. In the first place, he says:

With respect, there are several aspects of that reasoning which I take leave to doubt. The first of them arises out of the adoption of the Bropho test and, consequently, the Tribunal’s conclusion that the words "on the ground of [religious beliefs]" imply a causal connection between religious beliefs and impugned conduct. In effect the Tribunal decided that the Seminar contravened s.8 because the Tribunal was satisfied that Pastor Scot was moved or caused by the religious beliefs of Muslims to make the statements which he did at the Seminar, and that an ordinary reasonable person who was not malevolently inclined or free from susceptibility to prejudice would be inclined by Pastor Scot’s statements to hate Muslims. But, for the reasons which I have given, I do not consider that that was the question which needed to be decided. In my view the question was whether, having regard to the content of the statements in the context of the whole of the Seminar, and to the nature of the audience in the sense that I have described, the natural and ordinary effect of what was stated was to encourage the hatred of Muslims based on their religious beliefs.

Nb. The business about the precedent and interpretations from the "Bropho" case has an important place in this decision, as it was used by Judge Higgins in the original case. But "Bropho" was a case heard on the basis of the Racial Discrimination Act, which is quite different from Victoria's RRTA laws.

In the second place, he argues:

that, because the Tribunal adopted the Bropho test instead of directing itself to the question of whether the Seminar as a whole incited hatred of Muslims based on their religious beliefs, it did not give a great deal of consideration to the distinction between hatred of the religious beliefs of Muslims and hatred of Muslims because of their religious beliefs. The Tribunal appears to me to have assumed that the two conceptions are identical or at least that hatred or other relevant emotion of or towards the religious beliefs of Muslims must invariably result in hatred or other relevant emotion of or towards Muslims. In my view, that is not so.

There is an obvious retort to this view, but Judge Nettle heads us off at the pass:

I do not overlook that Muslims are defined by their religious beliefs - as persons who profess Islam - and therefore that to incite hatred or other relevant emotion of or towards the religious beliefs of a Muslim may result in hatred or other relevant emotion of or towards the Muslim. But it is surely not to be assumed that it must do so. Muslims are not the only class of persons who are defined by their religious beliefs. So are adherents to other faiths, including Judaism and Christianity. And there are any number of persons who may despise each other’s faiths and yet bear each other no ill will. 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.

And then he makes a really interesting observation:

No doubt the purpose of the Act is to promote religious tolerance. But the Act cannot and does not purport to mandate religious tolerance. People are free to follow the religion of their choice, even if it is averse to other codes. One need only think of the doctrinal differences which separate the several Christian denominations or the Muslim sects in order to see the point. Equally, people are free to attempt to persuade other people to adopt their point of view. Street corner evangelists are a commonplace example. Rightly or wrongly, that is the nature of religion, or at least it is the nature of some religions as they are understood, and in this country it is tolerated. Accordingly, s.8 goes no further in restricting freedom to criticise the religious beliefs of others than to prohibit criticism so extreme as to incite hatred or other relevant emotion of or towards those others. It is essential to keep the distinction between the hatred of beliefs and the hatred of their adherents steadily in view. Beyond that, it is a matter for the law of defamation or the law relating to misrepresentation and misleading and deceptive conduct or, possibly, criminal sanctions.

The Third Difficulty 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. ...The problem with that is that the verity of Pastor Scot’s statements about the religious beliefs of Muslims was irrelevant to the matters in issue. The question for the purposes of s.8 was whether what was said by Pastor Scot taken as a whole and in context was such as to incite hatred of or other relevant emotion towards Muslims on grounds of their religious beliefs. 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? ...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.

The Fourth difficulty:

flows from the third. 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 me 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).

And at this point, the judgment goes off on a lengthy tangent about whether what the Tribunal claimed Pastor Scot said was what he really said. The conclusion? Sometimes yes, sometimes no. For eg. It is clear that Scot did not claim that "Muslims were demons", but rather that "Some Demons are Muslims". Other times, it is clear that while Scot did not say exactly what Higgins' findings claimed he did, he strongly implied them. The point in the end though is whether this is relevant to the question of whether he actually "incited hatred" against Muslims as a class of people.

"The fifth difficulty with the Tribunal’s reasons", Nettle claims, is:

that the Tribunal’s concern with the balance or imbalance of Pastor Scot’s presentation of Muslim religious beliefs led the Tribunal to treat as being relevant some evidence given by three recent converts to Islam to the effect that they had attended the Seminar and were upset by what they had heard.

But, under s.8 of the Racial and Religious Tolerance Act,

the question...is not whether the conduct offends a group of persons but whether it incites hatred or other relevant emotion of or towards that group of persons. Things might well be said of a group of persons which would be deeply offensive to those persons and yet do nothing to encourage hatred or other relevant emotion of or towards those persons.

In effect,

the affront to the feelings of the Muslim witnesses was largely if not wholly irrelevant. The concentration needed to be upon the members of the audience who were not Muslims

ie. because the question is whether or not they were incited to violence/hatred etc. against Muslims. Here Nettle introduces an important aspect:

What demanded to be assessed was whether the effect of the injunctions to love and to witness to Muslims was sufficient to prevent hatred or other relevant emotion by the non-Muslims towards Muslims.

In this section, he produces lengthy sections from the transcript that show that Scot really encouraged a very respectful attitude toward Muslims and Islam--even if for the ulterior motive of proselytisation. Here follows Judge Nettle's assessment of the situation:

With respect...it was surely arguable on the basis of Pastor Scot’s exhortations to his audience to love and "witness" to Muslims that the raison d’etre of his Seminar was to infuse his audience with an understanding of the Koran (as he perceived it) so that they might effectively convert Muslims to Christianity (as he perceived it). Indeed his peroration was that, despite the inadequacies of Islamic doctrine (as he perceived them), his audience should love Muslims and seek to inculcate in them a Christian understanding of the Deity (as he conceived of it). If, therefore, it were properly to be concluded that the Seminar incited hatred or other relevant emotion of or towards Muslims (as opposed to their religious beliefs), the terms of Pastor Scot’s exhortations to love and to witness to Muslims, and their likely effect on the non-Muslims present, required a good deal more analysis than peremptory dismissal as "talk from time to time".

None of this is to say that Judge Nettle does not recognise that "Pastor Scot's observations on the meaing of the Koran" would be "deeply offensive" to some Muslims. In fact, he states:

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. As has been seen, the prohibition in s.8 is not a prohibition against saying things about the religious beliefs of persons which are offensive to those persons, or even against saying things about the religious beliefs of one group of persons which would cause another group of persons to despise those beliefs. It is against saying things about the religious beliefs and practices of persons which go so far as to incite other persons to hate persons who adhere to those religious beliefs. And as a matter of logical analysis, it does not suffice to establish incitement to hate a group of persons to show that scorn has been poured on the religious beliefs or practices of that group of persons (although it may be relevant).

There is a final section on the question of the definition of "good faith" and whether or not the seminar was held for "a genuine religious purpose" (which would exempt it from the law). Judge Nettle observes that:

comparative religion and proselytism are both "religious purposes" and...it does not matter which religions are being compared or to which religion persons are sought to be converted. Accordingly, if, as in this case, a defendant’s alleged purpose is "to explain to Christian people certain aspects of Islamic teaching and to encourage and equip Christian believers to share their faith with Muslims", then, subject to what follows, it is difficult to think that it would not qualify as a "religious purpose"

So, according to Judge Nettle, it is doubtful whether Catch the Fire Ministries overstepped the boundaries of the law. That is why he has sent it back for a retrial. His final word?

Of necessity, the standards of an open and just multicultural society allow for differences in views about religions. They acknowledge that there will be differences in views about other peoples’ religions. To a very considerable extent, therefore, they tolerate criticism by the adherents of one religion of the tenets of another religion; even though to some and perhaps to most in society such criticisms may appear ill-informed or misconceived or ignorant or otherwise hurtful to adherents of the latter faith. It is only when what is said is so ill-informed or misconceived or ignorant and so hurtful as to go beyond the bounds of what tolerance should accommodate that it may be regarded as unreasonable.