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Anatomy of a dispute

By David Palmer - posted Monday, 20 August 2007


It seemed good to me, having followed all things related to the now notorious Victorian religious vilification case closely for some time past, to write an orderly account of the dispute.

The course of the dispute

On March 9, 2002, Daniel Scot, an expert on the teaching of the Koran and Hadith (collections of the sayings of Mohammed) and some years earlier forced to flee Pakistan on account of facing the death penalty under that country’s then newly enacted blasphemy laws, spoke at a seminar organised by Pastor Danny Nalliah of Catch the Fire Ministries (CTFM).

Three topics were covered in the seminar: “Jihad from the Koran”, “The Koran and the Bible” and “Witnessing to Muslims”.

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The seminar was held just two months after the Victorian Government’s Racial and Religious Tolerance Act became law. The key clause (clause 8) in this law with respect to religious vilification states, “A person must not, on the ground of the religious belief or activity of another person or class of persons, engage in conduct that incites hatred against, serious contempt for, or revulsion or severe ridicule of, that other person or class of persons”.

The Act includes an exception clause whereby it is open to the person accused to establish that their conduct “was engaged in reasonably and in good faith in the course of any statement, publication, discussion or debate made or held, or any other conduct engaged in, for any genuine religious purpose”.

Unbeknown to the organisers of the seminar, a member of the Islamic Council of Victoria (ICV), working with the Equal Opportunity Commission (EOC) at the time for the express purpose of ensuring people from Arabic and Muslim communities were made aware of their rights under anti-discrimination laws, encouraged several recent converts to Islam to attend the seminar.

A complaint was subsequently lodged by the ICV and the converts against CTFM and the two pastors.

Conciliation failed in the EOC. The case was then taken by the ICV to the Victorian Civil and Administration Tribunal (VCAT, “the tribunal”), where after failed mediation a hearing was set before the Deputy President of VCAT, Judge Michael Higgins. The hearing extended over many days from October 15, 2003 to March 29, 2004, with Judge Higgins releasing a “Summary of Reasons for Decision” on December 17, 2004 in which he found heavily against the two pastors, and a week later released his 140-page “Reasons for Decision”.

A further six months elapsed before Judge Higgins made orders for remedy on the June 22, 2005. These involved a public apology by the two pastors in the form of large advertisements over two consecutive weeks, in The Age and Herald Sun acknowledging their vilification of “all Muslim people, their God, their prophet Mohammed and in general Muslim beliefs and practices”. The advertisement would also say “that Pastor Scot was not a credible witness and that he had not acted reasonably and in good faith”.

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This prompted a renewed round of opposition to the law by advocacy groups, including the Australian Christian Lobby (ACL) which co-ordinated a group of churchmen and lawyers to approach the Victorian Government seeking the repeal of the Act, or failing that, significant amendment.

Eventually with the Presbyterian Church of Victoria, taking the lead through its Moderator, Dr Harman, a group of senior church leaders drawn across the Protestant-Catholic-Orthodox divide presented their proposals to the government. The government response was to expand the religious exception clause to include “teaching, conveying and proselytising of a religion”.

Following Judge Higgins’ orders for remedy, the two pastors appealed to the Supreme Court of Victoria. The appeal was heard by a panel of three judges sitting as a Court of Appeal on August 21 and 22, 2006. On December 14 in their judgment, the three judges unanimously upheld the appeal against the tribunal’s decision, effectively unravelling that finding and the basis on which it was constructed.

With the penalties set aside, the Court ordered the matter be sent back to the tribunal with the stipulation that it be heard by another judge and without the calling of further evidence. Furthermore, the Islamic Council of Victoria, which originally brought the complaint, was ordered to meet half the two pastors’ appeal costs, likely to have been a six figure sum.

In an important finding for the by now sullied reputation of Pastor Scot, the lead opinion of the Court of Appeal found the tribunal erred in its assessment of the 19 specific instances of supposed vilifying statements made by Pastor Scot, either by misconstruing Pastor Scot’s words or failing to take into account other ameliorating material presented in the seminar.

When the matter was listed for hearing in VCAT on June 22, 2007, the ICV requested the matter be mediated. A successful mediation resulted in the following VCAT press release:

Notwithstanding their differing views about the merits of the complaint made by the ICV, each of the ICV, Catch The Fire Ministries, Pastor Scot and Pastor Nalliah affirm and recognise the following:

  1. the dignity and worth of every human being, irrespective of their religious faith, or the absence of religious faith;
  2. the rights of each other, their communities, and all persons, to adhere to and express their own religious beliefs and to conduct their lives consistently with those beliefs;
  3. the rights of each other, their communities and all persons, within the limits provided for by law, to robustly debate religion, including the right to criticise the religious belief of another, in a free, open and democratic society;
  4. the value of friendship, respect and co-operation between Christians, Muslims and all people of other faiths; and
  5. the Racial and Religious Tolerance Act forms part of the law of Victoria to which the rights referred to in paragraph 3 above are subject.

Some concluding observations

This five-year saga has proved beneficial to Pastor Danny Nalliah and his ministry. Among all who value free speech and religious liberty, as well as those concerned about the progress of Islam in the West, the two pastors will be remembered for their courage and persistence under fierce attack and for their fidelity to the Christian cause in a day of confusion and compromise. It took two recent non Anglo Saxon arrivals to Australia with real experience of Islam to make a stand for religious freedom.

In the end the pastors were vindicated: the courts required no apology, and the right to robustly debate religion, including the right to criticise the religious belief of another was upheld.

Whilst each pastor carried the burden of false accusation and anxiety, there was a particular cost for Pastor Daniel Scot. As a result of the case, the demand for his services as a teacher on Islam in Australia’s Bible Colleges dried up. It is to be hoped that his teaching ministry will once again be welcomed.

The ICV will be extremely disappointed with the outcome but relieved that the press either ignored the mediated outcome or else misrepresented it to their benefit.

Arguably, the ICV’s central concern in bringing its complaint was to use the religious vilification law to place Islam and its teaching as set out in the Koran and the Hadith in some privileged position whereby it could never be subjected to scrutiny and criticism. The incoherence of the Islamic texts and incompatibility with modernity means that they cannot withstand critical examination. Should this happen, the identity and coherence of their communities is threatened. For this reason, Muslims will not give up easily on this issue, though in this instance, thanks to the two pastors, they have failed.

This case also clearly demonstrated the dangers for the judiciary in taking sides in religious disputes. Some of Judge Higgins’s statements were breathtaking in their naivety and ignorance. Thus he asserted that the one billion adherents of Islam “regard the Koran as equivalent to the Bible; that it agrees substantially with Christian beliefs save for particular events”. He judged the shocking material cited from the Koran by Scot as “no longer relevant to the 21st century” - this is clearly contrary to the views of those Muslims who regard the Koran as dictated from the hand of Allah and therefore unalterable. Judge Higgins infamously found Scot to have called Muslims “demons”, a finding whose falsity was exposed in the Court of Appeal finding, but only after that initial finding was repeated around the world by the press.

But how are Australians, and Christians in particular, to made aware of the challenge and ambitions of Islam?

Christians presenting material on Islam do have a problem of how to best to approach the topic. The experience of Christians past and present under Islamic rule has been mostly bad, if not appallingly bad. While Islamic terrorists find no difficulty justifying their actions from Islamic texts, most Muslims (it is to be hoped) either don’t understand the jihadic teaching of the Koran or else choose to interpret it in a more benign fashion.

Rather than starting with topics like jihad and dhimmitude as important as these topics may be, a more profitable approach is likely to begin with the very different conception Islam holds of their god Allah compared to God’s own self revelation recorded in the Bible. Everything we know and observe that is so disturbing about Islam flows from their false understanding of the nature of God.

And we always need to remind ourselves that the Muslim is our neighbour in need of Christ, even as we are disconcerted by specific Islamic teaching or reflect upon the terrible ongoing persecution of Christians in majority Muslim lands.

Where to now with religious vilification law?

As much as Christians may dislike the Victorian law, it is not going to disappear any time soon. The government should be quietly pleased by the outcome.

This is not to say other governments will now follow suit. On the contrary, the uproar over free speech resulting from this dispute scuttled any plans by other state governments to bring in Victorian-style religious vilification legislation.

While the settlement between the parties in this case does not constitute a precedent binding on VCAT or a court, the clause concerning the right to “robustly debate religion, including the right to criticise the religious belief of another”, does point to the likely settlement of the case in favour of the two pastors had mediation failed. This observation is strengthened further by the government's amendment of the Act in 2006 to include proselytising as “a genuine religious purpose”. This amendment implicitly includes the comparison of two religions, and therefore criticising one and advancing another in the course of that comparison.

Does this mean Christians have nothing to fear from the Act?

A lawyer who provided expert legal advice for our approach to government has this to say in response:

The Act as amended still leaves a defendant with the burden of proving that they acted reasonably and for a genuine religious purpose. Even if criticism of another religion can now come within a genuine religious purpose, persons doing that retain the burden of proof to show that they acted reasonably in doing so and that their actions were part of a genuine religious purpose. In short, much of the sting has been removed for the time being but there are still traps to be wary of.

In the meantime we need to strengthen ourselves in our Trinitarian and Christ-centred faith so that we all may have courage to lift our heads out of the bunkers and robustly contend for the faith with Muslims, atheists or whoever, for make no mistake, in a day of general declension, we have the truth about God, ourselves, and the life well pleasing to God and neighbour.

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First published in the August 2007 edition of Australian Presbyterian.



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About the Author

David Palmer is a minister of the Presbyterian Church of Australia.

Other articles by this Author

All articles by David Palmer

Creative Commons LicenseThis work is licensed under a Creative Commons License.

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