Making martyrs and mischief

Victoria's laws against religious vilification have divided opinion and religious communities.

Judge Michael Higgins will need the wisdom of Solomon today, if he is not to create Victoria's first Christian martyrs.

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 Australia, and that those who didn't weren't true Muslims.

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 Egypt or Pakistan.

But, as the Islamic Council barrister pointed out, Muslims in Australia come from 62 countries, and their views vary widely. Few follow the extreme line of those Scot described as the only true Muslims.

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 Uniting Church still endorses the act, but Catholic Archbishop Denis Hart now has reservations, especially "the way it blurs race and religion". Anglican Archbishop Peter Watson says the church did not look closely enough when the act was framed and that it does not want "the law of the land intruding into places where it has no proper role".

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," Gardner says.

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".

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CASES OF RELIGIOUS VILIFICATION?

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 Maldives, where she is helping tsunami victims, to spend the time, energy and money needed to defend the case.

ROB WILSON AND OLIVIA WATTS

Olivia Watts, a transgender witch, complained that Casey councillor Rob Wilson vilified her in a 2003 press release. Wilson said Watts' admission she was a witch was a matter of concern for all Casey residents and claimed that a satanic cult was trying to take over the council. The case came to the tribunal but the parties reached a confidential settlement, which included a public apology "for any hurt felt by Ms Watts".

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 Israel and Palestine without properly distinguishing them. The tribunal dismissed the complaint.

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."

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