By Barney Zwartz
June 22, 2005
http://www.theage.com.au/news/national/making-martyrs-and-mischief/2005/06/21/1119321735030.html?oneclick=true
Judge Michael Higgins will need
the wisdom of Solomon today, if he is not to create
Martyrdom is the worst-case
scenario when Judge Higgins orders the "remedies" in the first case
under the state's Racial and Religious Tolerance Act 2001. But it seems utterly
plausible.
The judge ruled in December that
Christian group Catch the Fire and pastors Danny Nalliah and Daniel Scot
vilified Muslims at a seminar in March 2002, and in a newsletter and website
article. Scot told the seminar, among other things, that Muslims were
terrorists who wanted to take over
The judge indicated early in the
case that he was not contemplating the prison sentences the act allows. But if
he orders the Christians to stop preaching against Islam and they refuse, who
knows where it could end, with the pastors taking their lead from the apostle
Peter in the Book of Acts when ordered not to teach Christianity: "We must
obey God rather than men." They believe they are being punished for
accurately quoting the Koran and Hadiths, Islam's sacred texts — some of the
comments the judge found vilifying were direct quotes — and have said they are
prepared to go to prison.
Meanwhile, mainstream and
conservative churches, which see the case as a test of freedom of religion and
freedom of speech, are girding their loins for battle. They warn that if the
act is not amended they will make it an election issue in next year's state
poll. A couple of Christian ministers in jail citing freedom of conscience
certainly has the potential to embarrass the Bracks
Government.
Exacerbating opponents' fears,
the complaints under the act that followed the Catch the Fire case into the
Victorian Civil and Administrative Tribunal are certainly the sort to fuel
paranoia (see accompanying panel), and are hardly what Parliament envisaged in
establishing the law.
A few nasty words about Muslims . . . transformed an unknown organisation
into martyrs with an international platform."
But it is the Catch the Fire case that has attracted worldwide attention,
in Muslim and Christian countries alike — and represents the type of
vilification the act was designed to stop. Originally listed for three days in
the Victorian Civil and Administrative Tribunal and now in its third year, the
case has cost the Muslims' lawyers more than a million dollars in pro-bono
work, and the Christians' lawyers several hundred thousand dollars.
It raises some intractable issues. No fairminded person could deny that
Scot said some inflammatory and inaccurate things, nor question why — amid the
heightened tensions six months after 9/11 — the Islamic Council felt it had to
stop him.
For their part, Christians were
furious that the truth was no defence under the act. After all, what Scot
taught about jihad did describe Islam in parts of the world today — just ask
persecuted Christians in
But, as the Islamic Council
barrister pointed out, Muslims in
Another aspect that caused
disquiet was the role of the Equal Opportunity Commission, to whom complaints
are submitted. A Muslim employee arranged for the Islamic Council to send
representatives to the seminar at which Nalliah and Scot spoke.
The Australian Family
Association's Bill Muehlenberg lists several issues with vilification laws. He
argues that they confuse different issues (race, religion, gender, sexuality);
they are ambiguous and nebulous; that laws already exist to prevent incitement
to violence or defamation; the burden of proof is always on the accused, who is
guilty until proven innocent; that in religious cases, secular judges are
incompetent to decide complex theological disputes; that they create a new
crime based on thought; and they curb free speech.
Christians are mounting a
sustained campaign to repeal or amend the religious section of the act. It has
dominated the past two meetings between the Victorian heads of churches and
Premier Steve Bracks — who believes the act is fine as it is, a spokeswoman
says. Other groups are lobbying backbenchers and Muslim and Jewish leaders, and
already have more than 30,000 signatures on a petition. But the churches don't
speak with one voice. The Uniting and Catholic churches supported the Islamic
Council at the tribunal.
The
Muslims, too, take both sides.
Islamic Council member Waleed Aly insists that the legislation is not about
silencing criticism, it's about stopping vilification. "A lot of the
reaction has been profoundly misinformed," he says. "The act is
worded clearly so it's against the vilification of people on the basis of
belief, not the vilification of belief. To say you can't quote the Koran is
absurd."
He compares the Racial and
Religious Tolerance Act with the Trade Practices Act as legislation that was
met with suspicion but ultimately proved beneficial. "I don't think it
will limit the scope of religious debate but encourage us to be more reasonable
and honest in how we go about it," he said.
In contrast, Amir Butler,
executive director of the Australian Muslim Public Affairs Committee, believes
the act undermines the freedoms it was designed to protect. He also fears that
silencing the vilifiers gives them legitimacy without eradicating extremism.
"A few nasty words about
Muslims, spoken to a small gathering by a small group transformed an unknown
organisation into martyrs with an international platform," he wrote in
January.
Paul Gardner, chairman of the
Australian Defamation Commission, a Jewish advocacy group that helped frame the
legislation, agrees that some fine tuning may be needed but wants to keep
religion as part of the act. "Otherwise Jewish vilification would be
handled under racial vilification, and while we are more than a religion we are
not a race."
But, "if there are anomalies
that allow for strange cases we would support reviewing the legislation.
There's a line that can be drawn — not an easy line — between being critical of
a theological position and vilifying all the adherents of that religion,"
Even opponents of the act admit
people should not be vilified because of their religion or have hatred incited
against them. But they say protections exist — or can be improved — under other
laws.
Meanwhile, they say, it is
already inhibiting free speech and could be used as a sort of blasphemy law to
prevent not only vilification but all criticism of a religion.
Peter Stokes, of lobby group
Saltshakers, who is helping co-ordinate the campaign to change the act, says it
causes "enormous intimidation and stress". "That's the danger of
this type of legislation. People can throw mud at the wall and bring a case,
and even if the Equal Opportunity Commission throws it out, people can take it
to VCAT."
He worries that insurance
companies put prudence over principle and pay vexatious complainants rather
than fight them. "So many cases are held in confidence, settled by
insurance companies, it's really dangerous. We have a private thought police in
the EOC working behind the scenes," Stokes says.
David Barton, Victorian head of
the Australian Christian Lobby, says the act is unworkable because the offence
is to create a feeling in others. "If you can be held responsible for
creating a feeling in someone else you are guilty under the act.
"The other element is the
sheer injustice of the entire process. Someone decides, let's silence these
people, bring a case against them. They have to engage
solicitors, go through the time, effort, stress and financial drama of mounting
a defence. And some of these complaints are so bizarre, why should people go
through all that hassle?"
Barton, an experienced political
campaigner, doesn't want to embarrass the Government, which would obstruct
reform. He says he is working with Jews and Muslims and lawyers to get an
outcome that will work for everyone. "After all, Christians are under the
pump now, but it could be other faith groups next. Some Christian groups would
like to take action against others, but our view is that it wouldn't advance
any cause to take reciprocal action. It would inflame the situation."
Anglican minister Mark Durie, who
was an expert witness for Catch the Fire, argues that's exactly what the act
does. "What is sadly ironic ... is that it incites vilification. A
complainant will seek to show that the respondent's conduct has threatened
religious harmony, that they have vile intentions, that they are inciting
hatred and are dishonest," he writes.
One thing is certain: today will
not be the end of the matter. Whatever remedy Judge
Higgins prescribes, the case is on its way to the Supreme Court. The
Christians' lawyers have applied to dismiss his finding, claiming the act is
unconstitutional and has errors, and that the judge showed "irredeemable
bias".
In 2003-04 and so far in 2004-05, there were 28 complaints under the act:
35 racial and 21 religious. Five religious complaints reached VCAT. They
included:
ROBIN FLETCHER AND ALPHA
Pedophile Robin Fletcher says an international Christian teaching course,
Alpha, vilified him because it disparaged witches and occultists. Last week
Fletcher appeared by video link from jail — where he is serving a 10-year
sentence for drugging, sexually assaulting and prostituting two 15-year-old
girls — before the tribunal to complain against Corrections Victoria, the
Salvation Army, which ran the course, and its Australian distributor, CMC
Australasia. He says that in jail Alpha is privileged over his religion,
witchcraft. He has said he is "in prison for following the legal rites of
a legal religion". The tribunal has yet to rule on an application to
strike the complaint out.
ORDO TEMPLI ORIENTIS
Occult group Ordo Templi Orientis has complained about child psychologist Reina
Michaelson, founder of the Child Sexual Abuse Prevention Program, because an
article on the internet connected their organisation with satanic ritual abuse,
quoting their "Book of the Law". Dr Michaelson replies that their
beliefs are not lawful, but include eating flesh, child sacrifice, murder,
torture and "uninhibited 'love' without restraint". She must return
from the
ROB WILSON AND OLIVIA WATTS
Olivia Watts, a transgender witch, complained that Casey councillor Rob Wilson
vilified her in a 2003 press release.
DAVID IRVING'S FILM
The Jewish Community Council of Victoria applied in 2003 to stop the Melbourne
Underground Film Festival showing a film by Holocaust-denier David Irving. The
tribunal rejected the application, but the theatre owner withdrew the venue,
and the film was not shown.
THE ISRAELI MAP
An Arab Palestinian complained that an advertisement for the Jewish National
Fund in the Jewish News had a map of
TALIBAN CHRISTIANITY
Roger Birch, a Canberra Christian, complained that Bilal Cleland of the Islamic
Council of Victoria spoke of "Taliban-style Christianity" before the
2004 election, but decided he could not afford to take it to the tribunal. He
told The
Age this week: "I felt that I had proved my point that the act
is nothing to do with freedom, but is an incredibly dangerous attack on the
freedoms of the majority of people in this country."