Catch the Fire Ministries Inc v Islamic Council of Victoria Inc

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 3751 of 2005

CATCH THE FIRE MINISTRIES INC, DANIEL NALLIAH and DANIEL SCOT	Appellants
	v.
ISLAMIC COUNCIL OF VICTORIA INC and ATTORNEY-GENERAL FOR THE STATE OF VICTORIA	Respondent
	Intervenor

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JUDGES:	NETTLE, ASHLEY and NEAVE, JJ.A.
WHERE HELD:	MELBOURNE
DATES OF HEARING:	21 and 22 August 2006
DATE OF JUDGMENT:	14 December 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 284

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RELIGIOUS VILIFICATION – Seminar and articles concerning the religious beliefs of Muslims – Whether presentation of seminar or publication of articles inciting hatred against, serious contempt for or revulsion or severe ridicule of Muslims on the ground of religious belief – Whether conduct engaged in reasonably and in good faith for a genuine religious purpose - Racial and Religious Tolerance Act 2001, ss.8, 9 and 11

Judgment Orders and Declarations – Order – Order to publish notice in the nature of corrective advertising – Whether power to make orders under s.23 of the Racial and Religious Tolerance Act 2001 includes power to make orders in the nature of corrective advertising – Whether order in any event objectionable as lacking specificity - Racial And Religious Tolerance Act 2001, s.23; Equal Opportunity Act 1995, s.136(a)(iii)

Constitutional Law (C’th) - Implied freedom of communication about government or political matters – Prohibition on engaging in conduct which incites hatred against, serious contempt for or revulsion or severe ridicule of a group of persons on the ground of religious belief – Whether capable of burdening implied freedom – Whether reasonably appropriate and adapted to serve legitimate end – Racial and Religious Tolerance Act 2001, s.8.

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APPEARANCES:	Counsel	Solicitors
For the Appellants	Mr C.C. Macaulay, S.C. with Dr K.L. Emerton	Moores Legal
For the Respondent	Mr W.B. Zichy-Woinarski, Q.C. with Ms D.S. Mortimer, S.C. and Mr H.L. Redd	Allens Arthur Robinson
For the Intervenor	Ms Pamela Tate, S.C., S.G., with Ms K.L. Walker	Victorian Government Solicitor

NETTLE, J.A.:

This is an appeal from Orders of the Victorian Civil & Administrative Tribunal (“the Tribunal”) made on 22 June 2005 and 9 August 2005. Leave to appeal was granted by the Court on 19 August 2005.

The first appellant, Catch the Fire Ministries Inc, is a registered non-trading incorporated association which carries on Christian ministry on an Australia-wide basis. The second appellant, Pastor Nalliah, is a full-time registered pastor of the Assembly of God of Australia and a director and the public officer of Catch the Fire Ministries. The third appellant, Pastor Scot is an accredited pastor of the Assemblies of God Church in Australia. He is also a director of Ibrahim Ministries International which is an incorporated non-profit religious organisation and, according to the evidence which he gave before the Tribunal, he has undertaken extensive personal study of the Koran and his main role as a pastor is to speak and teach at seminars and other such gatherings to groups of Christians. The respondent, Islamic Council of Victoria Inc, is an incorporated association that represents Muslims and Islamic societies in Victoria and is the Victorian constituent member of the Australian Federation of Islamic Councils. The Attorney-General of the State of Victoria intervened pursuant to s.78A(1) of the Judiciary Act 1903 (Cth).

The proceeding before the Tribunal was instituted by a complaint by the Islamic Council of Victoria against Catch The Fire Ministries, Pastor Nalliah and Pastor Scot, that they had engaged in conduct which contravened s.8 of the Racial and Religious Tolerance Act 2001 (“the Act”).

The impugned conduct consisted of:

1) Statements made by Pastor Scot at a seminar presented by Catch the Fire Ministries on 9 March 2002 at the Full Gospel Assembly (YWAM Base) in Middlesex Road, Surrey Hills;

2) The publication by Catch the Fire Ministries of a newsletter dated “Summer 2001” and compiled by Pastor Nalliah; and

3) The publication by Catch the Fire Ministries on its website of an article entitled “An Insight into Islam by Richard” dated 24 September 2001.

The Islamic Council contended that the conduct incited hatred against, serious contempt for, or revulsion or severe ridicule of the Islamic faith.

The Tribunal held that the seminar taken as a whole incited hatred and contempt of and revulsion towards the religious beliefs of Muslims and thereby breached s.8 of the Act; that the statements made in the newsletter viewed objectively and in their totality were likely to incite a feeling of hatred towards Muslims and so breached s.8 of the Act; and that the content of the article, “An Insight into Islam by Richard”, when viewed objectively, incited hatred against and serious contempt for people who are Muslims and so too breached s.8 of the Act. On that basis, the Tribunal made orders in the nature of corrective advertising, to which it will be necessary to refer later in greater detail.

The grounds of appeal pressed in argument were as follows:

(1) The Tribunal erred in the construction of s.8 of the Act;

(2) A number of the Tribunal’s findings of fact were not open on the evidence;

(3) Depending upon the correct construction of ss.8 and 11 of the Act, s.8 of the Act infringes the freedom to communicate concerning political and governmental matters which is said to arise from Part III of the Commonwealth Constitution.

(4) In any event, the orders made by the Tribunal were beyond the jurisdiction of the Tribunal or alternatively not open to be made on the facts.

The Tribunal’s construction of section 8

Section 8(1) of the Act provides as follows:

(1) 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….

Before the Tribunal, the parties were agreed, and the Tribunal accepted that the test of whether conduct “incites” hatred or other relevant emotion within the meaning of s.8 is one of whether “an ordinary reasonable reader, who is not malevolently inclined or free from susceptibility to prejudice, would be inclined to hatred by the publication or conduct”.

The appellants now contend that the correct test is one which requires proof that persons were actually incited to hatred or one of the other specified emotions, and they say that there was none.

Before the Tribunal, the parties were also agreed, and the Tribunal accepted that the words “on the ground of” in s.8(1) are designed to create a causal connection between the impugned conduct and the religious belief or activity to which the section refers. In the Tribunal’s view they were similar in meaning to the word “because” in s.18C of the Racial Discrimination Act 1975 (C’th). The Tribunal observed that s.9(1) provides that a person’s motive in engaging in any conduct is irrelevant and that s.9(2) provides that the religious belief or activity of another does not have to be the only or even dominant ground for the conduct, but that it must be a substantial ground. The Tribunal remarked that, as a consequence, the extent of connection between the conduct and the religious belief may be open to various interpretations. The Tribunal was, however, of the clear view that the conduct in this case had been engaged in “because of the religious beliefs and activities of Muslims who adhere to the religion of Islam.”

In this appeal the appellants argue against that construction and submit that the words “on the ground of the religious belief or activity of another person or class of persons” imply a need for connection between religious beliefs and the hatred or other emotion which may be incited.[1] The appellants contend that, despite the construction which the Tribunal said that it put on s.8(1), the Tribunal erred in fact by failing to draw a distinction between an attack on a person’s or group of persons’ religious beliefs and an attack on persons who adhere to those religious beliefs.
[1]See Waters v. Public Transport Corporation (1991) 173 C.L.R. 349 at 400-401.

The meaning of “incites”

The ordinary reasonable reader test of whether conduct “incites” hatred came from the decision of the New South Wales Administrative Appeals Tribunal in Kazak v. John Fairfax Publications Ltd[2] concerning s.20C of the Anti-Discrimination Act 1977 (N.S.W.). That section provided that:

“It is unlawful for a person, by public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race of the person or members of the group.”

[2][2000] NSWADT 77.

The New South Wales Tribunal took the view that the word “incites” in s.20C should be given its ordinary meaning of “urge, spur on…stir up, animate, stimulate to do something.”[3] It also held that the operation of s.20C was not limited to what it called “actual incitement” and thus that it was sufficient to engage the operation of s.20C that conduct appear as likely to stimulate hatred, serious contempt or serious ridicule. That meant, it was said, that one was to ignore any special characteristics or proclivities to which the audience or potential audience might be subject and to assess the matter by reference to the standard of the “ordinary reasonable reader”. In other words, one was to assume a “person of fair average intelligence who is not perverse, morbid, suspicious of mind or avid for scandal”.[4]
[3]Based upon the Oxford Shorter English Dictionary.
[4][2000] NSWADT 77 at [31].

In my view, however, that reasoning is not altogether apposite in relation to s.8 of the Act. I accept that “incites” in s.8 means “urge[s], spur[s] on…stir[s] up animates[s] or stimulate[s]”. That accords with the plain and ordinary meaning of the word and also with the criminal law’s conception of incitement, upon which s.8 appears loosely to be based. I also allow that incitive conduct is capable of contravening s.8 without necessarily causing hatred or serious contempt or revulsion or serious ridicule. As with the common law criminal offence of incitement, I view s.8 as directed to inchoate or preliminary conduct, whether or not it causes the kind of third party response it is calculated to encourage.[5] In that sense, the section is prophylactic. But that said, I do not accept that one should exclude from consideration the nature of the audience to whom the conduct is directed.
[5]R. v. Quail (1866) 4 F.&F. 1076; 176 E.R. 914; R. v. Krause (1902) 66 J.P. 121; Glanville Williams, Criminal Law, The General Part, 2^nd Ed. at [195], and see R. v. Dimozantos (1991) 56 A.Crim.R. 345 at 349, concerning incitement under s. 321G of the Crimes Act 1958.

The idea of the “ordinary reasonable reader” belongs to the law of defamation.[6] It has as its object the protection of individuals against false allegations calculated to lower them in the esteem of their fellows.[7] Contrastingly, s.8 does not prohibit statements about religious beliefs per se or even statements which are critical or destructive of religious beliefs. Nor does it prohibit statements concerning the religious beliefs of a person or group of persons simply because they may offend or insult the person or group of persons. The proscription is limited to that which incites hatred or other relevant emotion and s.8 must be applied so as to give it that effect.
[6]Gardiner v. John Fairfax & Sons Pty Ltd (1942) 42 S.R.(N.S.W.) 171 at 172.
[7]Fleming, The Law of Torts, 9^th Ed. at 522-3.

Evidently, there can be no incitement in the absence of an audience.[8] It is not a contravention of s.8 to utter exhortations to religious hatred in the isolation of an empty room. If conduct is to incite a reaction, it must reach the mind of the audience. And if conduct is to be perceived as inciting a particular reaction, it must reach the mind of an audience as something which encourages that reaction. So, for conduct to incite hatred or other relevant emotion it must reach the mind of an audience as something which encourages those emotions. So, therefore, the question of whether it has that effect will depend upon the perception of the audience.
[8]Either in the ordinary sense of incitement or in the criminal sense: Horton v. Mead [1913] 1 K.B. 154 at 158, per Phillimore, J.

Of course, where statements are published generally as they might be in a book or newspaper or by posting on a web site, one may need to have regard to all manner of persons who are likely to see them and absorb them.[9] But it is otherwise where the audience is select. Thus, for example, it is conceivable that a statement made about religious beliefs in the course of a talk-back 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. And examples can be multiplied.
[9]Gerhard v. Bates (1853) 2 El & Bl 476; 118 E.R. 845.

In my view, one may usually assume a degree of reasonableness.[10] Parity of reasoning with the law relating to misleading and deceptive conduct suggests that s.8 has in view the effect of conduct on a reasonable member of the class of persons to whom the conduct is directed.[11] But, for the reasons already expressed, the perception of a reasonable member of the class of persons to whom conduct is directed will not always be the same as the perception of the so-called ordinary reasonable reader. Whatever the circumstances, it will in each case be necessary to consider the audience and bring it to account.
[10]But see [118] below.
[11]Parkdale Custom Built Furniture Pty Ltd v. Puxu (1981) 149 C.L.R. 191 at 199, per Gibbs, C.J.

So to say does not deny “the ordinary reasonable reader” a role in the assessment of religious vilification. As will be seen, he or she or at least something very like them has a large role to play in the application of s.11. But for the purposes of s.8 I think the test is different. It is a question of whether the natural and ordinary effect of the conduct is to incite hatred or other relevant emotion in the circumstances of the case.

The meaning of “on the ground of religious belief”

As has been noticed, the Tribunal construed the words “on the ground of religious belief” as necessitating a causal connection between the religious belief of the person or group of persons against whom the hatred is incited and the conduct by which the hatred is incited. In so doing, the Tribunal said that it considered that the meaning of the words “on the ground of” in s.8 were not dissimilar to the word “because” in s.18C of the Racial Discrimination Act 1975 (C’th) and therefore were to be interpreted, as French, J. interpreted “because” in Bropho,[12] as requiring a causal connection between the impugned conduct and the status of the person against whom the conduct is directed.
[12](2004) 135 F.C.R. at 125.

With respect, however, I think that there are problems with that interpretation. To begin with, French, J. did not so much interpret “because” in s.18C as follow the approach taken by Kiefel, J. in Creek v. Cairns Post Pty Ltd,[13] (which was later approved by the Full Court of the Federal Court in Toben v. Jones).[14]
[13](2001) 112 F.C.R. 352 at 358.
[14](2003) 129 F.C.R. 515 at 525, per Carr, J.

Secondly, as French, J. observed, Kiefel, J.’s analysis was based on McHugh, J.’s interpretation of s.17(1) of the Equal Opportunity Act 1984 (Vic)[15] in Waters v. Public Transport Corporation.[16]McHugh, J. considered that the words “on the grounds of status or by reason of the private life of the other person” in s.17(1) required the act of the discriminator to be activated by the status or private life of the person alleged to be discriminated against, in the sense that it be one of the factors which caused or moved the discriminator to act as he did. But McHugh, J. was in the minority. The majority considered that it would significantly impede or hinder the attainment of the objects of the Equal Opportunity Act 1984 if s.17(1) if one were to adopt that approach. They held that it was enough that a material difference in treatment be based on the status or private life of the person less favourably treated.[17] With respect, I prefer the majority view.
[15] Section 17(1) of the Equal Opportunity Act 1984 provided that:
[16](1991) 173 C.L.R. 349 at 401.
[17](1991) 173 C.L.R. 349 at 359, per Mason, C.J. and Gaudron, J. and at 382, per Deane, J.

Thirdly, it appears to me that s.9(1) of the Act, by expressly providing that a person’s motive in engaging in any conduct is irrelevant, confirms that “on the ground of” in s.8(1) is to be interpreted as the majority interpreted those words in the Equal Opportunity Act in Waters. In effect, it gives statutory force to the view first expressed by the House of Lords in R. v. Birmingham City Council[18] and later adopted by Deane and Gaudron, JJ. in Australian Iron & Steel Pty Ltd v. Banovic [19] and then by Mason, C.J. and Deane and Gaudron, JJ. in Waters, that intention or motive to discriminate (or in this case to engage in conduct which incites hatred), though it may be relevant so far as remedies are concerned, is not a necessary condition of liability.
[18][1989] A.C. 1155.
[19](1989) 168 C.L.R. 165 at 176.

In anti-discrimination legislation in general it is necessary and sufficient that conduct be engaged in on the ground of the status or attributes of the person and, except for remedies, it is irrelevant what moves or actuates the conduct.[20] So too, in my opinion, under s.8 of the Act it is both necessary and sufficient to engage the operation of the section that conduct incite hatred or other relevant emotion towards a person or group of persons which is based on their religious beliefs and, except for remedies, it is irrelevant what moves or actuates the conduct.
[20]A large number of the authorities are analysed in the judgment of Chernov, J.A. in Kapoor v. Monash University (2001) 4 V.R. 483 at 484[3]-[47].

The Tribunal’s reasoning

The Tribunal referred at some length to sections of the Seminar transcript and to a tape recording of the Seminar and, based on that material, concluded that Pastor Scot had made the following statements at the Seminar in contravention of s.8, namely:

(1)     That the Qur’an promotes violence and killing - p.4; looting,            killing and destroying people - good for Muslim people - p.24.
(2)     Muslim scholars misrepresent what the Qur’an says by varying                 the emphasis, depending upon the audience - pp.4-5.
(3)     That the Qur’an teaches that women are of little value, e.g.:
(a) woman is like a field to plough, use her as you wish - p.6;
(b) in the Hadith Bukhari woman, dog and donkey are of equal value influencing prayer of a Muslim man – p.7.

(4)     That Allah is not merciful. The thief’s hand is cut off for stealing.          Mohammed did not spare anybody. Amputation occurs for even      the stealing of an egg - p.10.
(5)     Muslims lie for the sake of Islam and that it is “all right”, they          have to hide the truth - pp.10.
(6)     Muslims are demons - pp.13-14.
(7)      The practice of abrogation, that is cancellation of words from the          Qur’an and Hadiths solely to fit some particular purpose or personal need - pp.14-17.
(8)     The concept of Silent Six Jihad, some of which are use of        business connections - p.6; using money to induce people       convert to Islam - p.17; training of Muslims in Madrassahs,       and the statement there are millions of people right now under    training in Madrassahs, implying a threat to Australia – 18.

(9)     People do study for six to seven years they become true         Muslims. And we call them terrorists, but they are true Muslim;          they have read the Qur’an, they have understood it and now        they are practising it, that is the connection between the Qur’an and terrorism - p.19.
(10)    Muslims intend to take over Australia and declare it an Islamic          nation - p.23.
(11)    Mohammed trained the entire nation and he took literally, part        in the Holy War. He showed Muslims how pleasant it is and if           you are killed in the Holy War you can be brought back to life          because dying as a martyr is such a wonderful thing - p.32;           Allah will remit the sins of martyrs and bring them into       paradise, a reference to a connection to suicide bombing - p.33;       parents bringing up their children for martyrdom, where there is a reference to a teenage son will be a suicide bomber and if          killed he can intercede for his mother and father and relatives -        p.34.
(12)    Muslim people have to fight Christians and Jews - p.38;         humiliate them - p.39; fight them until they accept true religion           - p.40.
(13)    After reference to the bombing of the Trade Centre in New York      it is mentioned that the person who masterminded it stated that            “The Holy War is the spirit, it is the soul of Islam. If you remove            it, nothing left, so that is the truth about the matter” - p.43.
(14)    That the Qur’an states that Allah misleads and deceives         people” - p.48, and referred to “Allah as the greatest deceiver” -          p.50. The Qur’an states that there is a “list of sins which Muslims         are not supposed to do, however if needed, then that’s a different story”, but we will look at later. Sin is a relative thing    in Islam” - p.55, and that Allah says if you will not commit sin,    Allah will destroy you - p.56.
(15)    That Muslims are taught that children should obey their parents,     but if the parents are not Muslim, then children have a     responsibility to mistreat them and to deal with them harshly, so            when you are true Muslim, as you know David Hicks, you have          heard of him, now he has responsibility to do that because he is     true Muslim. So when true Muslim, you have to destroy your           relative and so on, so that’s the commandment of Allah, you          cannot just ignore it - p.59-60.
(16)    There is a reference to the Qur’an allows the use by Muslims of          prostitutes - p.60-61.
(17)    Allah says “Do not covet”, that’s a good thing, but then Allah          says if you are true Muslim, Allah has promised you plenty of     spoil, so you go for looting, you go for Holy War and Allah will     give you a lot of spoil - p.64. “That the Qur’an allows a Muslim         to have a child wife because the holy prophet was in his fifties when he married a seven year old girl.” – p.71.
(18)    “That Muslims derive money from drugs, so they make a lot of          money and they can spread Islam and fulfil their desire” - p.71.
(19)    Refers to the fact that it was thought that he was Muslim and           had converted to Christianity, what would be the responsibility of fundamentalists in that respect, to which the audience said       “Kill, kill” p.86. That in Australia in Islamic houses violence is very common because they know that beating is not wrong         according to the Qur’an. Allah says “Scourge your wife” - p.95.            That Muslims in Australia double their population in less than seven years. They are growing because they control the          Immigration Department - p.97.

The Tribunal also made reference to some statements made at the Seminar about accepting, tolerating, reaching out to and loving Muslim people, but said that those things did not alter its view. As the Tribunal put it:

“It should be noted that from time to time there is talk of witnessing to Muslims. There is also talk about how to socialise with them and to do all things necessary to convert them to Christianity. However, if one looks at objectively what took place and applied the test set out in [Kazak], then I am of the view that the Seminar taken as a whole, breaches section 8 of the Act because it incites hatred, contempt and revulsion, because of the religious beliefs of Muslims. Furthermore, there are many passages in the transcript which are designed to ridicule Muslims. These statements about Muslims and their religious beliefs and practices produce laughter from the audience. Examples are contained at pp.18-19, 33, 37, 44, 46, 48. As an example, it is stated that Allah has 99 names and the Hadith “tells us Allah has actually hundred names, but the hundredth name is not known to Muslim people, that’s only known to a camel. So you have to inquiry from a camel to find out the hundredth name”. There are numerous other stories throughout the seminar of a similar kind, and looked at objectively, are designed to ridicule Muslims and their beliefs.
In support of the view that much of the Seminar was concerned with the witnessing to Muslims, reference should be made to the evidence of the witness Mathews, who states that the prominent feature of the Seminar was an injunction to love Muslims. It may well be that this was part of the reason for the Seminar. However, it does not fit well with an examination of the substantial part of the Seminar, which is clearly anti-Muslim. On any view it mocks their religious beliefs and practices, that is, that they live their lives substantially in accordance with Qur’anic injunctions. Although I have serious reservations about the explanation about witnessing to Muslims, I am prepared to accept that, viewed objectively, it could be accepted as such. However, that fact does not justify what was otherwise said by Pastor Scot.”

The Tribunal did not at that point mention whether it took into account any statements of the latter kind that were included in the article and the newsletter. But much later in the reasons, after referring to an amount of expert evidence as to the accuracy of Pastor Scot’s statements concerning Muslim religious beliefs, the Tribunal returned to what had been said at the Seminar and stated that in addition to reading the transcript the Tribunal had listened to the tape recordings on a number of occasions, and that:
“…what the audio does is to produce a fairly significant alteration in the import of what was said by Pastor Scot. It is obvious, in my opinion, that the method of personal presentation can be a significant factor in the interpretation of what is meant to be conveyed by the speaker. Applying the objective test to which I have referred, I have found the oral presentation is a significant step or, more accurately, it is an important feature which demonstrates that Pastor Scot has, on the ground of the religious belief or activity of another person or class of person, engaged in conduct that incites hatred against, serious contempt for or revulsion or severe ridicule of that other class or class of persons. That class of persons are Muslims in general, but in respect to these proceedings Victorian Muslims.
“I have been assisted in making findings by the expert evidence which has been called in this case, namely Father McInerney, Professor Bouma and Dr Kazi. Furthermore, I’ve had regard to the evidence of Mr Thomas, Mr Jackson and Dr Eades. I have taken into account such evidence subject to limitations. Having said that, the issue of vilification could have been determined upon the basis of an objective assessment of the tapes of the seminar, and without regard to either the evidence of the lay witnesses or with very little reliance upon the expert evidence. However, the fact is that the three lay persons were present, heard what was said, and were able to describe the effect which it had on those present, and therefore the issue of incitement.
I find that the conduct of the seminar by Pastor Scot, when looked at objectively, and having regard to the context of the public act, and applying the test set out in [Kazak] at first instance, and that referred to in John Fairfax Publications Pty Ltd v. Kazak (2002) N.S.W.A.D.T.A.P. 35 at paragraph 16 constitutes a breach of section 8.”
…
Pastor Scot, throughout the Seminar, made fun of Muslim beliefs and a conduct. It was done, not in the context of a serious discussion of Muslims’ religious beliefs; it was presented in a way which is essentially hostile, demeaning and derogatory of all Muslim people, their god, Allah, the prophet Mohammed and in general Muslim religious beliefs and practices
Time and again this occurs and, on any view, produces a response from the audience at various times in the form of laughter.
…
The Seminar was not a balanced discussion. It was a process of taking literal translations from the Qur’an, and making no allowance for their applicability to modern day society. The ordinary, reasonable reader would understand from the public act, that he or she was being incited to hatred towards, or serious contempt for, or serious ridicule of a person on the ground of religion. As was indicacted in [Kazak], many readers will disagree with the sentiments expressed by Pastor Scot, but that is not the test. The test is whether the ordinary reasonable reader who is not malevolently inclined or free from susceptibility to prejudice, would be inclined to hatred, ridicule, contempt or revulsion by reason of the presentation of the Seminar. I find that the evidence of the three lay witnesses is probative of the fact, that what was said amounted to incitement. The two lay witnesses called by the respondent had a different view, but I prefer the complainant’s wintesses whose evidence I find to be more consistent with my listening to the tape.”
Finally, the Tribunal referred in detail to the parts of the Newsletter and the article which it said were in contravention of s.8. So far as the Newsletter was concerned, the Tribunal determined that an article entitled “2002 – Will Australia be a Christian Country?” contravened the section because statements in it:

“Viewed objectively, and in their totality, these statements are likely to incite a feeling of hatred towards Muslims. They seek first of all to create fear in those who read the article of being harmed by Muslims. Further, the statement [t]hat they are increasing in numbers while, ‘Aussies’ are on the decline, suggesting that they are seeking to take over Australia, which is consistent by the quote said to be made by an Imam. I find that this breaches section 8 of the Act.”

So far as the article was concerned, the Tribunal said that it was a clear breach of s.8 because it:

“…suggests that Islam is an inherently violent religion and it was not possible to separate Islam from terrorist groups. He implies that Muslims endorse the killing of people based upon their religion, e.g. the tribe of Jews referred to in the Qur’an. He characterises terrorism as the very nature of Islam itself and suggests that the prophet is a paedophile, that the Qur’an teaches that the killing of innocent people is sanctioned and it teaches hate, not love. There is no attempt in the article to distinguish between moderate and extremist Muslims. The content of the article, when viewed objectively, incites hatred against and serious contempt for people who are Muslims. Again, as with the Newsletter, I find that the respondent does not obtain the benefit of the exemption because the person’s conduct could not be regarded as reasonable, and in good faith.”

Analysis of the Tribunal’s reasoning

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[21] of Muslims based on their religious beliefs.
[21]Or other stipulated emotion.

It is true that the Tribunal stated that it was satisfied that the Seminar as a whole “incites hatred, contempt and revulsion, because of their religious beliefs”. But given that the Tribunal’s reasoning was expressly based on the Bropho test, it is to be assumed that the Tribunal was there using the expression “because of their religious beliefs” in the same way that it had used it when defining the meaning of the words “on the ground of”. That is to say, as representing a causal connection between the religious beliefs and the conduct.[22]
[22] Indeed on this appeal, the respondents submitted that it should be concluded that the Tribunal used the expression in that fashion.

The second difficulty, as I see it, is 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.

I do not overlook that Muslims are defined by their religious beliefs - as persons who profess Islam[23]- 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.[24] 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.
[23]Which as the proper name of orthodox Muhamadism is understood as the manifesting of humility or submission and outward conformity with the law of God [Allah] : Oxford English Dictionary, citing Lane.
[24]Among others.

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.[25] It is essential to keep the distinction between the hatred of beliefs and the hatred of their adherents steadily in view.[26] 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.
[25]Cf. R. v. Keegstra [1990] 3 S.C.R. 697; (1990) 61 C.C.C. 3d) 1 at 59e-60a; Gunduz v. Turkey [2005] 41 E.H.R.R. 5.
[26]The point is helpfully illustrated by Morris, J. in his decision as President of the Tribunal in Robin Fletcher v. The Salvation Army Australia Southern Territory General Work, [2005] VCAT 1523 [7] and [8].

The third difficulty with the Tribunal’s reasoning, as I perceive it, 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. Hence, the significance of the Tribunal’s observation, already referred to, that:

“The Seminar was not a balanced discussion. It was a process of taking literal translations from the Qur’an, and making no allowance for their applicability to modern day society.”,

and further observations, later in the reasons for decision, that:
“…I find that it constitutes a breach of section 8 of the legislation.
In that regard I have taken into account the evidence of Father McInerney and Dr Kazi which was to the effect that the conduct of the Seminar was not a fair representation of Islamic religious beliefs. I have also had regard to the views of Professor Bouma.
… interpretation of the Qur’an by Pastor Scot represented the views of a small group of fundamentalists, namely, Wahabbists, who are located in the Gulf states, and who are a minority group, and their views bear no relationship to mainstream Muslim beliefs and, in particular, Australian Muslims.”

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 point of fact, the most that could ever be said is that a given point of view may diverge to a greater or lesser degree from the mainstream of generally accepted views on the subject. 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 with the Tribunal’s reasons 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). Thus, to take the Tribunal’s 19 findings as to what Pastor Scot said at the Seminar:

First finding

Pastor Scot did not say at T4 that that the Qur’an promotes violence and killing. He said that:

“… I have been asked to teach what the Qur’an teaches on subject of the Holy War. What is real belief in Islam concerning the Holy War.
The reason is that because there is so much teaching about jihad and we hear conflicting teaching on the subject. I have read, I have seen a few books on that but people who have written books, they have not much knowledge of Islam.
…
I have written… it’s called ‘Selected Teaching of the Qur’an’. In that … that booklet – it is about sixty pages A4 size – I have cited more than 300 references concerning jihad in the Qur’an. So there’s a lot more concerning jihad in Qur’an.
Concerning prayer: there is a great Islamic scholar – Al-Tibri, he mention[s] there are 99 verses in Qur’an concerning prayer, but concerning jihad there are more than 300 verses. So there’s more writing on jihad than any other pillar of Islam in Qur’an….”

Equally Pastor Scot did not say at T24 that “looting, killing and destroying people - good for Muslim people”. What he said was that:

“Then we read in chapter 8 verse 65, Mohammed was commanded by Allah that he should exhort Muslim by telling that twenty Muslim they will be overcoming 200 non-Muslim. So if there are twenty Muslim they can easily defeat an army of 20…200 non-Muslim people. So we read that in Qur’an chapter 8 verse 65.[27]
However, chapter 8 verse 65 was cancelled later. We read in chapter 8 verse…66 says – oh it’s too much for twenty people to defeat 2000 (200), so you will defeat double of the people.[28]
But you know that again that’s not true, because Israel is a very tiny country and the surrounding nations have been trying to destroy it for fifty years, and they have not succeeded. So but that’s what Allah says here in chapter 8 verse 65 and 66.
The we further will see Allah has told in chapter 2 verse 216 that ‘warfare is ordained for you’.[29] There is not escape. You have to fight. You have to kill. And Allah says that ‘you may not like it, but it is good for you that you take part in the Holy War’.
…
So when we think of good thing, or bad thing, what Islam says good, need not be good, as we understand. So Allah says ‘fighting – warfare – is ordained’ and ‘its good for you’. It’s good for you that you loot people, you kill people, you destroy people. You may not like it but Allah says ‘It’s good for Muslim people’.”
[27]According to the Transcript, the Pickthall translation of Chapter 8 Verse 65 of the Koran, is as follows:
Sura 8:65. O Prophet! Exhort the believers to fight. If there be of you twenty steadfast they shall overcome two hundred, and if there be of you a hundred (steadfast) they shall overcome a thousand of those who disbelieve, because they (the disbelievers) are a folk without intelligence.
[28]According to the Transcript, the Pickthall translation of Chapter 8 Verse 66 of the Koran is as follows:
Sura 8:66. Now hath Allah lightened your burden, for He knoweth that there is weakness in you. So if there be of you a steadfast hundred they shall overcome two hundred, and if there be of you a thousand (steadfast) they shall overcome two thousand by permission of Allah. Allah is with the steadfast.
[29]At this point in the Seminar, Pastor Scot was showing a slide on the overhead projector of the Pickthall translation of Chapter 2 Verse 216 of the Koran, as follows:
Sura 2:216. Warfare is ordained for you, though it is hateful unto you; but it may happen that ye hate a thing which is good for you, and it may happen that ye love a thing which is bad for you. Allah knoweth, ye know not.

Second finding

Pastor Scot did not say at T4-5 that “Muslim scholars misrepresent what the Qur’an says by varying the emphasis, depending upon the audience”. What he said was that:

“But Muslin scholar, they have a dilemma, when they are talking to you in Western world, they have to present one side of the Qur’an that is not violent, there is no room of fighting, killing. Not at all. And they will read for you verses from Qur’an.
On the other hand, the same Muslim scholar, when he addresses to Pakstani Muslim, or a say Saudi Arabian Muslim, or Iranian Muslim, he will be telling you [them]…how important it is to kill people, to fight for sake of Allah. So same scholar just speaking here, totally different picture. Same scholar goes to Pakistan he totally paints different picture.
Why is it so? It’s not his fault. Actually Qur’an is a wonderful book. It has both teaching. So when we read Qur’an carefully we find out that there are many verses in Qur’an, which speak non-violence. And then there are many, many more verses in Qur’an, which speak nothing but violence.” (My emphasis)

Third finding

At T6 Pastor Scot did say that “… in Islamic teaching, according to the Holy Qur’an there is not much value of woman”. But he followed that immediately with the observation that:

“We read in Qur’an…Sura 2, verse 223, it say there that woman is like a field to plough, so you use her as you wish. [30] So its like a piece of land. So that’s the value which the holy book of Muslim people put on a woman.”
[30]According to the Transcript, the Pickthall translation of Chapter 2 Verse 223 of the Koran is as follows:
Sura 2:223: ‘Your women are a tilth for you (to cultivate) so go to your tilth as ye will…’

Fourth finding

Pastor Scot did not say at T10 that that Allah is not merciful. What he said was that:

“…in the Qur’an, chapter 5 verse 38, it says – right hand of a thief should be cut off. [31] Now if Allah is merciful, why thief’s hand should be chopped off? And according history of Islam, Mohammed did not spare anybody. If anybody found is stealing, even stealing an egg, his right hand is chopped off.[32]
[31]According to the Transcript, the Pickthall translation of Chapter 5 Verse 38 of the Koran is as follows:
Sura 5:38: As for the thief, both male and female, cut off their hands. It is the reward of their own deeds, an exemplary punishment from Allah. Allah is Mighty, Wise.‘
[32]It was not put to Pastor Scot and there was no evidence that Mohammed did spare anybody. found is stealing.

Fifth finding

Pastor Scot did not say at T10-11 that “Muslims lie for the sake of Islam and that it is ‘all right’, they have to hide the truth”. What he said was that he had advised one of his adherents to put a question to a Muslim missionary as to why, if Allah were merciful, the Koran said at Chapter 5 verse 38 that a thief should have his hands cut off as an exemplary punishment from Allah. According to Pastor Scot, the Missionary’s answer was to state emphatically that Chapter 5 verse 38 of the Koran did not say that, and as a result the adherent later complained to Pastor Scot that he had misled her. Pastor Scot then went on:

“I said [to the adherent after she expressed upset over the Missionary’s response] ‘Lady, calm down.’ I pulled out two three Qur’an and I opened all the chapters… I mean all the Qur’an, and in different Quar’an it was different verse numbers. So I said, [to the adherent] ‘That Muslim p[riest] he knows it’s in Qur’an.’ But because lying for sake of Islam is all right. So he know that. He had just to go four verses up and it’s there. But why he will tell that this is what Allah says. They have to hide the truth.
Now Bible tells us you know the truth, the truth will set you free, but Muslim people, when they come [to] some teaching, which they don’t like people should know, they will tell the truth. They will not tell the truth. They will hide the truth. They will tell lies …”

Sixth finding

Pastor Scot did not say at T13-14 that Muslims are demons. What he said was that:

“And when [the prophet Mohammed] left the city [of Al-Taif] we are told in Islamic history, this book [the Koran] tells life of Mohammed that even some people threw stone at him, so he was … his face was bleeding and he started praying to Allah, that ‘Allah help me’.
And Allah helped him and we read in Quar’an, the holy book of Islam, in chapter 46 of the Qur’an, verse 28 to 31, chapter 46 verse 28 – as I told, chapter in Arabic is called Sura – Sura 46 verse 28 to 31.[33] It says there that Allah sent a group of demons – in Arabic it’s called a ‘jinn’ – a group of jinn, a group of demons came to Mohammed and those demon – we read in the holy Qur’an – that those demon they heard the Qur’an and they became Muslim. And not only they became Muslim, they said that now they would go to the people and they will tell other people that now a prophet has come after Moses who has a book, and if you’ll hear him some of your sin will be forgiven. So those demons, those jinn, they not only became Muslim, they became Muslim missionary demon.

So we read that story in the holy Qur’an, chapter 46 verse 28 to 31. But if you read translation by Yusuf Ali he writes in footnote, in this tranlation he writes footnote. ‘Here jinn does not mean demon, here jinn means clever people’. So if you do not have much understanding of Islam you’ll say ‘Oh, It’s just a clever people it’s not demon’.
But if you read the same story in chapter 72 of the Qur’an , that’s called Sur Al Jinn. It’s chapter 72 verse 1 to 15 you read the same came story. That Allah sent a group of demon to Mohammed and they became Muslim. And then these demons, they tried to enter heaven. When they tried to enter heaven, Allah hits them with shooting star. So when you look at night and you see the shooting star in heaven, actually they are Muslim demons, [they’re] trying to enter heaven and Allah is hitting them with shooting star. That is the real reason according to the Holy Qur’an, chapter 72.”
Moreover, a little later at T19, Pastor Scot added:
“OK. Then then next one is myticisms. That is also not violent jihad. There are many Western drawn to mysticism. Now mystic people they are called Sufis. They are linked with spiritual powers. You know I told you a group of demon had become Muslim, and they are good demons. They are not bad demons, they are Muslim demons. So they contact them and with the help of those demon they can do lot of things.” (My emphasis)
[33]According to the Transcript, the Pickthall translation of Chapter 2 Verse 223 of the Koran is as follows:
Sura 46:28-31. Then why did those whom they had chosen for gods as a way of approach (unto Allah) not help them? Nay, but they did fail them utterly. And (all) that was their lie, and what they used to invent. And when We inclined toward thee (Muhammad) certain of the jinn, who wished to hear the Quar’an and, when they were in its presence, said: Give ear! and, when it was finished, turned back to their people, warning. They said: O our people! Lo! we have heard a scripture which hath been revealed after Moses, confirming that which was before it, guiding unto the truth and a right road. O our people! Respond to Allah’s summoner and believe in Him. He will forgive you some of your sins and guard you from a painful doom.

Seventh finding

Pastor Scot did not say at T14-17 that the practice of abrogation was the cancellation of words from the Qur’an and Hadiths solely to fit some particular purpose or personal need. What he said was that there are 33 types of abrogation, of which he explained four in some detail: namely (1) where words of the Qu’ran and their legal application have been cancelled, of which he gave as an example the so-called satanic verse, Chapter 53 verse 19;[34] (2) where words which remain in the Koran no longer have any legal function, of which he gave as an example Chapter 24 Verse 15;[35] (3) where words had been in the Koran by then Allah had cancelled them; and (4) circumstantial abrogation, where there were competing or inconsistent verses in the Koran, which one applied according to the circumstances, of which he gave as examples, Chapter 2 verse 256,[36] which he said provides that there is no compulsion in religions and Chapter 24 verse 3, which he said provides that believers shall only marry believers.[37]
[34]According to the Transcript, the Pickthall translation of Chapter 53 Verse 19 of the Koran is as follows:
Have ye thought upon the Al-Lat and Al-‘Uzza.
Here no reference is made to a Sura chapter or verse – only a reference to page number in the book “The Life of Muhammad”.
[35]According to the Transcript, the Pickthall translation of Chapter 4 Verse 15 of the Koran is as follows:
Sura 4:15. As for those of your women who are guilty of lewdness, call to witness four of you against them. And if they testify (to the truth of the allegation) then confine them to the houses until death take them or (until) Allah appoint for them a way (through new legislation).
[36]According to the Transcript, the Pickthall translation of Chapter 2 Verse 256 of the Koran is as follows:
Sura 2: 256. There is no compulsion in religion. The right direction is henceforth distinct from error. And he who rejecteth false deities and believeth in Allah hath grasped a firm handhold which will never break. Allah Is Hearer, Knower.
[37]According to the Transcript, the Pickthall translation of Chapter 2 Verse 221 of the Koran is as follows:
Sura 2: 221. Wed not idolatresses till they believe; for lo! a believing bondwoman is better than an idolatress though she please you; and give not your daughter in marriage to idolaters till they believe, for lo! a believing slave is better than an idolater though he please you. These invite unto the Fire, and Allah inviteth unto the Garden, and unto forgiveness by His grace, and expoundeth His revelations to mankind that haply they may remember.

Eighth finding

Pastor Scot did speak of the concept of Silent Six Jihad, some of which are use of business connections – T16; using money to induce people to convert to Islam - T17; and training of Muslims in Madrassahs [sic]. He did not, however, imply that they were a threat to Australia. What he said was that:

“But [a] couple of months ago I was in America and I was hearing a debate between some scholar[s]. One scholar pointed out that in Pakistan there are 39,000 training schools. Now [at] this training school, where he studied, there were 2,500 students there in that training school. So there are millions of people right now, under training in Madarassas, in Pakistan, and they are true Muslim.”

Ninth finding

Pastor Scot did say at T19 that:

“So when people read that [the Hadith], they study that for six year, seven year, they become true Muslim. And we call them terrorist, but actually they are true Muslim because they have read the Qur’an, they have understood it, and now they are practising it.”

But he did not say that that is the connection between Islam and terrorism.
Tenth finding

Nor did Pastor Scot say at T23 that Muslims intend to take over Australia and declare it an Islamic nation. What he said was that:

“There was a[n] article written September last year, that was first week of September 2001. There’s that magazine called Maccabees [the Maccabean]. That’s a Jewish magazine published in Sydney. That magazine says, in first week of September 2001 edition of that magazine says, that one Rabbi he met Chief Mufti of Muslim people, Islamic community.
A Mufti is like a …he is like, say, it’s a religious leader who has the greatest political as well as religious authority for the Muslim people.
So that Chief Mufti, that … when he was interviewed, Rabbi asked him, that what is your plan for Australia? And that Chief Mufti said ‘Our plan for Australia is that we will delcare it Islamic nation when there’ll be 51% Australian [Islamic].’” [38]
[38]It is also to be noted, however, that in cross examination Pastor Scot agreed that what had appeared in the Maccabean magazine was not an article but a letter to the editor and that the interview with the Mufti which was referred to in the letter had taken place some years before the letter was published in the magazine in the first week of September 2001.

Eleventh finding

Pastor Scot did say at T32 that Mohammed trained the entire nation and he literally took part in the Holy War; showed Muslims how pleasant it is and if you are killed in the Holy War you can be brought back to life because dying as a martyr is such a wonderful thing; and Allah will remit the sins of martyrs and bring them into paradise. But Pastor Scot did not at that stage make any reference to suicide bombings. He referred instead to a slide (slide 15) which was then showing on the overhead projector, as follows:

“…the Prohpet of Islam trained every man and woman forming a national militia whose w[h]ole object was to establish the kingdom of Allah on earth. He created a taste for military life and he directly inspired his men with courage and bravery by himself taking an active part in all their military exercises and parades. He had proper arrangements for the nursing of the sick and the wounded in the battlefield. Instead of a paid army Mohammed used to divide the booties among the soldiers who acquired them. The system of paying to the holy warriors, according to their looting made the Muslims more enthusiastic for the Jihad: Al-Hadis Miskat ul-Masahib Vol. 2 Chapter 23 , Under Military Organization P.341-2.”

Later at T33 Pastor Scot said:
“However, these are the cases we read in chapter 3 verse 197 [of the Koran].[39] We read there ‘truly Allah will remit the sins of the martyr and then bring them into paradise’. So if you want to be sure of your paradise you should be surely dead man. To [be] dead sure, you have to be dead OK in Islam for salvation and that’s why there are hundreds of thousands Muslim people waiting in queue for suicide bombing.”

[39]According to the Transcript, the Pickthall translation of Chapter 3 Verse 195 of the Koran is as follows:

Sura 3: 195. And their Lord hath heard them (and He saith): Lo! I suffer not the work of any worker, male or female, to be lost. Ye proceed one from another. So those who fled and were driven forth from their homes and suffered damage for My cause, and fought and were slain, verily I shall remit their evil deeds from them and verily I shall bring them into Gardens underneath which rivers flow – A reward from Allah. And with Allah is the fairest of rewards.

As to parents bringing up their children for martyrdom, he said at T34 that:

“Now we read here ‘Martyrs are jubilant because of their reward.’ So that’s chapter 3 verse 169 to 171. [40]

[40]According to the Transcript, the Pickthall translation of Chapter 3 Verse 169 of the Koran is as follows:

Sura 3: 169-171. Think not of those, who are slain in the way of Allah, as dead. Nay, they are living. With their Lord they have provision. Jubilant (are they) because of that which Allah hath bestowed upon them of His bounty, rejoicing for the sake of those who have not joined them but are left behind: That there shall no fear come upon them neither shall they grieve. They rejoice because of favour from Allah and kindness, and that Allah wasteth not the wage of the believers.

He then referred to President Abdul Bashir, President of Sudan, whose brother he said had been killed some years before and of a party which the President had held to celebrate the fact that his brother would be passing into paradise in accordance with the reward for martyrs promised in the Koran, and he continued:

“Then we, we read in Qur’an chapter 4 verse 69[41] that martyrs, they can intercede. So that’s a big attraction for parents to give their children for martyrdom. Because if their son, teenage son will be suicide bombing, he is killed there, then that son can intercede for his mum, for his dad, for his [aunts], for his uncles, for brother, sister.”
[41]According to the Transcript, the Pickthall translation of Chapter 4 Verse 69 of the Koran is as follows:
Sura 4:69. Whoso obeyeth Allah and the messenger, they are with those unto whom Allah hath shown favour, of the prophets and the saints and the martyrs and the righteous. The best of company are they!

Twelfth finding

Pastor Scot’s observations about Muslims having to fight Christians and Jews and humiliating them were lengthy, complex, and at places bewildering. As it appears to me, there are large steps in the logic (or illogic) of it and much that depends on assertion about the way in which passages in the Koran are properly to be interpreted. But in the end, it is clear that Pastor Scot was laying down for his audience what he interpreted the Koran to say about the command of Allah that Muslims should fight against those who are not of the Islamic faith in order to convert them to Islam, and not about the way in which his audience should regard people who are of the Islamic faith. The relevant parts of the seminar began with an anglicised reading of Chapter 9 Verse 29 of the Koran, by another speaker as follows:

“Fight against those who believe not in Allah nor in the Last Day nor forbid that which has been forbidden by Allah and his Messenger. And those who acknowledge not the religion of the truth, example Islam, among the people of the scriptures, the Jews and the Christians, until they pay the Jizya or the poll tax, with willing submission and feel themselves subdued.”[42]

[42]According to the Transcript, the Pickthall translation of Chapter 9 Verse 29 of the Koran is as follows:

“Fight against such of those who have been given the Scripture as believe not in Allah nor the Last Day, and forbid not that which Allah hath forbidden by His messenger, and follow not the Religion of Truth, until they pay the tribute readily, being brought low.”

Pastor Scot then continued with his address as follows:

“Yeah. So here Allah is saying that Muslim people, they have to fight with the People of the Book. Why? Because people of the Book are, we read there, they are cursed by Allah. Christians and Jews are cursed by Allah. Why? Because they worship idols and they worship false deity.[43] (My emphasis).
What are false deity, according to the Qur’an? We read that in the Qur’an chapter 9 verse 30 that Jews say Ezra is the Son of God. You know that? It’s a new revelation, which Allah gave to the prophet of Allah. So Jews say ‘Ezra is the Son of God’, and Christians say ‘Messiah is the Son of God’ and that’s why we are worshipping false deities. OK. And that so Muslims they have to fight.
And we read in chapter 5 verse 17[44] Jim Rodwell’s translation, ‘Infidels now are they who say verily, ‘God is Messiah’. So when we say, ‘Jesus is God’, we are infidels, we are …we are pagans, we are unbelievers. So that’s why Muslims have responsibility to fight with us. And [what]Allah can never forgive is associating anybody else with God. So when we say, ‘Jesus is God’ that is unforgivable sin.”[45]
Pastor Scot said next:
“This … chapter 19 verse 88 to 92[46] it says, when people say God has a son it’s such a big sin that all the heavens, according to Islam there are seven heavens, they all want to break into pieces, because they are hearing such a big lie. All the earth want to break into pieces, all the moutain they want to break into pieces with shame by hearing that God has a son. It’s such a big lie, such a big sin, according to the Holy Qur’an.”
Pastor Scot concluded that part of the Seminar with reference to Chapter 9 verse 29 of the Koran, saying:
“And that’s why, in chapter 9 verse 29,[47] Allah says that Muslim have to fight with people of the Book. And if they… if they become Muslims then that’s wonderful, if they don’t become Muslims then they have to pay Jizya, poll tax, protection money. And if they don’t pay protection… Not only do they have to pay protection money, they have to be humiliated, make them low, utterly subdue them. Not only that you pay them Jizya, but also they can ask you your wife, your daughter. They can humiliate you doing anything and we don’t have time to look… look into history the whole Muslims have been doing that. Because Allah says they have to humiliate them. They have to utterly subdue them so to disgrace them, make them very little, according to the holy Qur’an – saghiroon – so that’s what they have to do.”
[43]As appears from T38, Pastor Scot based that conclusion on Chapter 4 verses 51-2 of the Koran, which are as follows:
Sura 4:51-52. Hast thou not seen those unto whom a portion of the Scripture hath been given, how they believe in idols and false deities, and how they say of those (idolaters) who disbelieve: ‘These are more rightly guided than those who believe?’ Those are they whom Allah hath cursed, and he whom Allah hath cursed, thou (O Muammad) wilt find for him no helper.
[44]According to the Transcript, the Pickthall translation of Chapter 5 Verse 17 of the Koran is as follows:
Sura 5:17. They indeed have disbelieved who say: Lo! Allah is the Messiah, son of Mary. Say: Who then can do aught against Allah, if He had willed to destroy the Messiah son of Mary, and his mother and everyone on earth? Allah’s is the Sovereignty of the heavens and the earth and all that is between them. He createth what He will. And Allah is Able to do all things.
[45]It is apparent from T38 that Pastor Scot ascribed that last observation to chapter 4 verse 48 and chapter 5 verses 72-72 of the Koran, of which the Pickthall translation reads:
Sura 4:48. Lo! Allah forgiveth not that a partner should be ascribed unto Him. He forgiveth (all) save that to whom He will. Whoso ascribeth partners to Allah, he had indeed invented a tremendous sin.
Sura 5: 52-73. They surely disbelieve who say: Lo! Allah is the Messiah, son of Mary. The Messiah (himself) said: O Children of Israel, worship Allah, my Lord and your Lord. Lo! whoso ascribeth partners unto Allah, for him Allah hath forbidden paradise. His abode is the Fire. For evil-doers there will be no helpers. They surely disbelieve who say: Lo! Allah is the third of three; when there is no Allah save the One Allah. If they desist not from so saying a painful doom will fall on those of them who disbelieve.
[46]According to T39 of the Transcript, Chapter 19 Verses 88-92 of the Pickthall translation of the Koran is as follows:
Sura 19: 88-92. And they say: The Beneficent hath taken unto Himself a son. Assuredly ye utter a disastrous thing whereby almost the heavens are torn, and the earth is split asunder and the mountains fall in ruins, that ye ascribe unto the Beneficent a son, When it is not meet for (the Majesty of) the Beneficent that He should choose a son.
[47]According to T39 of the Transcript, Chapter 9 Verses 29 of the Pickthall translation of the Koran is as follows:
Sura 9:29. Fight against such of those who have been given the Scripture as believe not in Allah nor the Last Day, and forbid not that which Allah hath forbidden by His messenger, and follow not the Religion of Truth, until they pay the tribute readily, being brought low.

Thirteenth finding

At T43 Pastor Scot did indeed mention the man who had masterminded a bombing of the World Trade Centre. He said this:

“…there was one Islamic scholar in University of Al-Azhar. Do you know where Al-Azhar is? That’s in Cairo that is the oldest and the greatest Islamic University. And the man I’m referring, his name is Sheik Umar. You might have heard there was a bombing of the Trade Centre few years ago in New York. He was the mastermind behind it. And when he was teaching at Al-Azhar University one junior lecturer asked him, ‘Why do you emphasise so much about the Holy War?’ And Sheik Umar said that ji…the Holy War is the spirit, it is the soul of Islam. If you remove it, nothing [is] left. So that it the truth about the matter.”

But of course it is not suggested that what Pastor Scot said about Sheikh Omar was incorrect[48] and, just as importantly, very shortly after referring to Sheikh Omar Abdel Al-Rahman, Pastor Scot went on to say this:

“…As I mentioned in Pakistan, milllions, not 1, 2, 3 but millions of people are trained in these Madrasas where they are taught these things and where every group goes to get training in Islam, in Pakistan, in those Madrasas. Because they want to learn true Islam.
However, we have not to be fearful of Muslim people because all Muslims are not same. Majority, vast majority of Muslim they don’t know what’s in Qur’an. [He referred then to an educated Muslim and continued]…
So now please remember, we are not here learning how to fight with Muslim, we are leaning here how we can love Muslims and help them to see the truth. This is the purpose of the sitting here. OK, we are learning [what] we need to know [of] Islam so that we know what their holy book teaches we also know what our Bible teaches and then we can present gospel to Muslim people. Like in Pakistan it’s forbidden to share gospel with Muslim. Many, you might have heard people are even given death sentence and so on because people can charge you with blasphemy and that’s very serious (My emphasis).
But in spite of all those circumstance in Pakistan, I shared gospel for very long time, from 1965 ’till 1987. So that’s a few years there. And I was able to share gospel on all levels, on ordinary level, people on the street, and villages and suburbs and in cities, and people who are very educated, people who are illiterate.”
[48]I take judicial notice of the fact that Sheikh Omar Abdel Al-Rahman, sometime professor of Al-Azhar Al-Sharif University and spiritual leader of Al-Jihad Al-Jadid was convicted and imprisoned in the United States for his involvement in the 1993 bombing of the World Trade Centre, New York.

Fourteenth finding

It is true that Pastor Scot spoke at T48 of Allah and deceit, but it is apparent from the context that Pastor Scot was referring to what he interpreted the Koran to say on the subject. He began the relevant section of the Seminar by observing that he had listed at page 4 of his booklet “Selected Teaching” some 30 references from the Koran where (according to Pastor Scot) Allah says that he guides whom he will and he misleads whom he will. Pastor Scot went on to explain, tortuously, that he based that claim on passages of the Koran such as Chapter 3 verse 54[49] and Chapter 8 verse 30, wherein he said, in English translations, Allah is referred to as the best of schemers and the best of plotters against the disbelievers, but in Arabic the term is “Allah Khair-ul-Makrin” and in Arabic “Khair-ul-Mkrin” ‘means greatest of all deceivers’. Pastor Scot moved on then at T50 to contrast that with the asseveration in John Chapter 14 Verse 6 that Christ is the Way, the Truth and the Life, in an apparent endeavour by Pastor Scot to persuade his audience that the version of Christianity which he espoused was superior to Islam.
[49]According to the transcript the Pickthall translation of Chapter 3 Verse 54 and Chapter 8 Verse 30 of the Koran is as follows:
Sura 3:54. And they (the disbelievers) schemed, and Allah schemed (against them): and Allah is the best of schemers.
Sura 8:30. And when those who disbelieve plot against thee (Oh Muhammad) to wound thee fatally, or to kill thee or to drive thee forth; they plot, but Allah (also) plotteth; and Allah is the best of plotters.

Fifteenth finding

At T59 Pastor Scot said that there is a very heavy teaching in Islam that children should obey their parents. He was at that stage of the Seminar contrasting fundamental precepts of Christian morality with fundamental precepts of Muslim morality and noting the considerable degree of similarity between the two. As the Tribunal observed, Pastor Scot went on then to assert that, if parents are not Muslim, Muslim children have the responsibility to mistreat them and to deal with them harshly. It is important to note, however, that this remark about the obligation of children to kill their parents was limited to the state of holy war. As Pastor Scot put it:

“Then concerning honoring parents, there’s a very heavy teaching that Muslim children should obey their parents. However, if parents are not Muslim then Muslim children have responsibility to mistreat them and to deal with them harshly. And I didn’t mention when I was teaching on Jihad because Allah has taught that Muslim they can only be friend with Muslim people, not with non-Muslim. And here [scil in Holy War] Allah says that Muslim should not befriend even their parents or their brethren or any close relative if they are not Muslim. And In Holy War Muslim have been killing their… children have been killing their parents, and children have been killing their parents [sic], and parents have been killing their children in Holy War because they were one group was Muslim other not Muslim. So when you are true Muslim, as you know David Hicks you have heard of him, now he has responsibility to do that because he is true Muslim. So when you are true Muslim you have to destroy your relative and so on. So that’s the commandment of Allah, you cannot just ignore that.”

Sixteenth finding

At T60 Pastor Scot said that:

“Then Allah says do not commit adultery. That of course is forbidden. Muslim should not commit adultery however, Allah says in chapter 4 verse 25 in Arabic language ‘istum matatam’ that means you can hire a woman for enjoyment. And Ajar means payment. ‘Ajar arun’ means payment for woman. So that’s chapter 4 verse 24 in Arabic language it says that you give her, once you have enjoyed with her. So you give the payment of her.”

That appears to misrepresent the text of chapter 4 verse 24 of the Koran of which the Pickthall translation is set out at T60 as follows:
Sura 4:24. And all married women (are forbidden unto you) save those (captives) whom your right hands possess. It is a decree of Allah for you. Lawful unto you are all beyond those mentioned, so that ye seek them with your wealth in honest wedlock, not debauchery. And those of whom ye seek content (by marrying them), give unto them their portions as a duty. And there is no sin for you in what ye do by mutal agreement after the duty (hath been done). Lo! Allah is ever Knower, Wise.

Seventeenth finding

At T60 Pastor Scot did say what is attributed to him by the Tribunal about the Koran promising plenty of spoil. With respect, however, the effect of the observation can only be understood in the context of what had earlier been said in the Seminar about the concept of bootie in Holy War, and once it is appreciated that at T64 Pastor Scot was in the course of making the point that there a different sections in the Koran which appear to say the opposite thing to each other. As Pastor Scot put it:

“Then Allah says, ‘Do not covet.’ That’s a good thing, but then Allah says ‘If you’re true Muslim Allah has promised you plenty of spoil’. So you go for looting, you go for Holy War and Allah will give you a lot of spoil. OK, so that was a bit of…, I thought you may [wish to] understand what the Qur’an teaches on these subjects.”

Eighteenth finding

At T71 Pastor Scot did imply that money is derived from the sale of illicit drugs which is used to sponsor Muslim proseletysm. As he put it:

“And concerning money, I mean we think of money but Muslim pour money in evangelism and building mosque and so on. So they have a lot of money, which mostly comes from oil, and all of you know that as it was mentioned during Sptember 11^th that 70% of the drugs, which go to England, they are from …Afghanistan and other Islamic countries. So they make a lot of money from there also so that they can spread Islam and fulfill their desire.”

Nineteenth finding

Finally, what was said about “kill, kill”, although distasteful, was said in the specific context of a story about events in which Pastor Scot claimed he was involved when he travelled to Egypt in 1995 and, he said, it was thought by some there that he had converted from Islam to Christianty. The idea that Allah says “scourge your wife” was simply a reiteration of the text of chapter 4 verse 34 of the Koran, of which, according T95, the Pickthall translation reads:

Sura 4: 34. Men are in charge of women, because Allah hath made the one of them to excel the other, and because they spend of their property (for the support of women). So good women are the obedient, guarding in secret that which Allah hath guarded. As for those from whom ye fear rebellion, admonish them and banish them to beds apart, and scourge them. Then if they obey you, seek not a way against them. Lo! Allah is ever High, Exalted, Great.

Regrettably, at T97 Pastor Scot did assert, incorrectly, that the population of Muslims in Australia is growing such as to double every seven years and said that: “So that is how they are growing, so because they have control over our Immigration Department and they bring all type of people”. But, importantly for present purposes, he then went on immediately to add:

“So that’s …they are very successful and they are growing rapidly, so we need a lot of worker. OK. I will ask you please to pray that God will release more worker and He may raise you to work among Muslim. And I will be very happy to, to train you, to help you, equip you so that we be effective worker among Muslims. So we need that, we need that badly, not only in Australia but elsewhere as well.
And then we read in Acts chapter 10 verses 3 to 8 there’s a dream where Cornelius, he saw angel and he called for Peter. As I mentioned there are many Muslims who are seeing angels and are seeing Lord Jesus Christ and they are turning to Christ. So we need to pray that such things should be more often happening, and many more Muslim will come to know Jesus as their Lord and Saviour. You know that this Cornelius, he was not a Jew but he was seeking for truth. There are many Muslim, who are seeking for truth. They are not happy with their life.”

I add that, like the Tribunal, I have listened to the tape recording of the Seminar, although I confess that I lacked the endurance to do it more than once. Unlike the Tribunal, however, I was unable to perceive from the tape anything in the manner of Pastor Scot’s delivery which rendered his statements more likely to incite the audience to hatred or other relevant emotion of or towards Muslims. To the contrary, as it seemed to me, what one hears is a speaker who, although endowed with an admirable command of the English language, speaks it as a second language with all the difficulties which that sometimes entails. I hear a degree of nervousness in delivery, a pattern of speech which is idiomatically incongruous and consequent double entendre which the speaker sounds not to have intended. Admittedly, his style is given to ridicule at places, and the ridicule results in cyncial laughter at places. But on any analysis his plea to love Muslims and to “minister” to them comes across as sincere enough as do the sounds of his audience’s reaction to it.

The fifth difficulty with the Tribunal’s reasons, as I perceive it, 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. The Tribunal explained its use of that evidence as follows:

“The use of their evidence is confined to the fact that these individuals attended the Seminar, and their evidence is probative of the method of delivery and conduct which occurred. The real question is the weight which should be given to such evidence, given that these were subjective interpretations of what was said, and taking into account that it was a subject matter which went to the basis of their religious belief. The extent to which they were upset at what they saw and heard is, a factor to be taken into account. Each said that they were very upset at the proceedings and, indeed, Eades said that he was in tears. That fact must also be taken into account in determining their objectivity.” (Emphasis added).

Although I differ from Nettle, J.A. in relation to these two matters, it is nevertheless clear that the Tribunal incorrectly applied the Bropho test, rather than the Kazak approach in interpreting the words “ on the grounds of religious belief” in s.8. I therefore cannot be satisfied that the Tribunal would not have reached a different conclusion if it had correctly applied the Kazak approach, instead of the Bropho test.

Did the Tribunal’s error in applying the “ordinary reasonable reader” test vitiate its decision?

I take a different view about the effect of the Tribunal’ s misapplication of the “ordinary reader test.” The material published on the web site was accessible to any member of the community. Thus the Tribunal was required to consider whether its effect was likely to incite hatred or other relevant response among a broad audience. Given the fact that any person could have read the materials on the website, the fact that the Tribunal considered the effect of the article by “Richard” on an ordinary reasonable member of the community, rather than on some more limited class of readers, did not, in my opinion, contribute in any relevant way, to the decision made by the Tribunal, in relation to the material on the web site.

I am also of the opinion that this particular error would not have resulted in the Tribunal reaching a different decision on whether Pastor Scot’s words at the Catch the Fire Ministries seminar and the newsletter published by Pastor Nalliah breached s.8, than the decision it would have reached if it had applied the correct test. The Kazak test, which considers the effect of the words on “an ordinary reasonable reader, who is not malevolently inclined nor free from prejudice,”[110] seems to me to be more favourable to these particular appellants, than the correct test, which considers the effect of the words on the audience which heard those words.
[110]John Fairfax Publications Pty Ltd v. Kazak [2002] NSWADTP 35 at [12], [19].

In my opinion, an ordinary member of a group which adheres to a faith is more likely to be incited to serious contempt for, revulsion or severe ridicule of a person or class of persons on the ground of their religious beliefs, than is an ordinary reasonable reader who does not have strong views about the rights and wrongs of particular religious beliefs. If I am correct in that view, the application of the correct test would not have led to a different outcome, in the circumstances of this case. It is, however, unnecessary for me to decide this question, because I have found that the Tribunal erred in its construction of the words “on the ground of” in s.8.

Did the Tribunal err in its use of the evidence of Mr Thomas, Mr Eades and Ms Jackson?

The Tribunal heard evidence from three Muslims who attended the seminar presented by Pastor Scot. Mr Thomas, Mr Eades and Ms Jackson testified about Pastor Scot’s manner of delivery and the way in which the audience reacted to what they heard. The purpose for which the Tribunal used that evidence was explained in his Honour’s reasons[111] and is quoted at [68] of Nettle, J.A.’s judgment.
[111]At [77] of the Tribunal’s Reasons for Decision.

I agree with Nettle, J.A. that such evidence may be relevant in determining whether the statements made by Pastor Scot incited or were likely to incite hatred or other relevant emotion among the audience which heard the statement.[112] As Nettle, J.A. points out, however, his Honour’s reference to Jones v. Scully[113] suggests that the Tribunal may have relied on these statements for the purpose of deciding whether the statements were likely to offend Muslims, which is the issue which must be decided for the purposes of s 18C of the Racial Discrimination Act, but not the test which must be applied under s.8 of the Racial and Religious Tolerance Act.
[112]The Tribunal also accepted that in assessing the reliability of the evidence it was necessary to take account of the fact that these witnesses were upset by hearing statements attacking their religious beliefs.
[113](2002) 120 F.C.R. 243.

In my view however, the reference to Jones v. Scully would not, standing alone, be sufficient to vitiate the Tribunal’s decision. In the next paragraph of his Reasons the learned Vice President said that

“The newspaper and the article were such as to lead to a wider audience. In fact, I believe that is the reason why the legislature both in this State and in other jurisdictions, have made it clear it is an objective test to be applied. It is the concept of the reasonable person possessing particular attributes by which the test is applied, not particular individuals whose sensitivities, be they well held or otherwise may be subjected to.”

While expressed somewhat ambiguously, in my view this statement indicates that his Honour was considering the reaction of the audience at the seminar, rather than the reaction of the persons about whom the statements were made, as is required under s.18C of the Racial Discrimination Act.

Nettle, J.A. is also of the opinion that the Tribunal’s statement that

“I find the evidence of the three lay witnesses is probative of the fact, that what was said amounted to an incitement”

shows that the Tribunal might have reached a different conclusion, if it had not used the evidence of the three witnesses for an irrelevant purpose. In my view the Tribunal’s reference to incitement in that passage shows that it used the evidence for the correct purpose of deciding whether s.8 was breached, rather than for the purpose of deciding whether the relevant witnesses were offended or humiliated by what they heard, as would have been required under the Commonwealth Racial Discrimination Act.
Were the findings of the Tribunal contrary to the weight of evidence?

Although the conclusion I have reached above makes it unnecessary for me to deal with this ground of appeal, it is appropriate to broadly express my views on the nineteen findings made by the Tribunal about statements which Pastor Scot was said to have made at the seminar, which are discussed in [38]-[62] of Nettle, J.A.’s judgment.

Before doing so, I make four general comments. First, s.8 is not confined to statements likely to incite hatred, but also covers statements likely to incite serious contempt for, or revulsion or severe ridicule of a person or class of persons on the grounds of their religious belief. Highly critical statements which make fun of or demean a religion may have the capacity to incite responses such as severe ridicule of or contempt for people holding that particular religious belief, even if they do not provoke hatred of them. This places some limits on the extent to which religious leaders can attack other religions, by requiring the alleged inciter to bring him or herself within s.11 to escape the operation of s.8. Section 11 is discussed by Nettle, J.A. at [82]-[98] of his judgment. As I explain in [197] I broadly agree with his views on its operation.

Secondly it is important to note that the statements at the seminar were made orally, rather than being read by the audience. It was appropriate for the Tribunal to take account of the fact that the audience was likely to be affected by the overall impression created by Pastor Scot’s oral presentation, rather than having the opportunity to undertake a detailed textual analysis of his words.

Thirdly, while particular statements read alone may not have been likely to incite hatred or other relevant emotion against Muslims, they must be read in the context of other statements made during the same presentation. The Tribunal was not required to parse the words which were used as if they were in a statute or legal document, the contents of which can be carefully read and weighed.

Fourthly, if it were not for the errors of law discussed above, it would be necessary to show that the findings of fact made by the Tribunal were not open on the evidence[114] or were unreasonable[115] or perverse.[116]
[114]S v. Crimes Compensation Tribunal [1998] 1 V.R. 83 at 89; Lucas v. Transport Accident Commission [2003] VSC 97 at [6].
[115]Richards v. VCAT [2000] VSC 148 at [17].
[116]Bulasa Pty Ltd v. Baytown Properties Pty Ltd [2003] VSC 248 at 40.

In Nettle, J.A.’s view some of the Tribunal’s findings were not reasonably open on the facts. With the above qualifications, I agree with Nettle, J.A.’s view at [38] and [44]-[45] that the first, sixth and seventh findings made by the Tribunal can not be justified. On the other hand, I regard the second, third, fourth, fifth, eight, ninth, tenth, eleventh and eighteenth findings which are referred to in paragraphs [40]-[43], [46]-[49] and [60] of Nettle J.A’s judgment, as open to the interpretation which the Tribunal placed upon them. Standing alone I do not regard the statements which were the subject of the twelfth to nineteenth findings, that are quoted in [52]-[61] of Nettle, J.A.’s judgment, as likely to incite hatred or other relevant emotion against Muslims as opposed to inciting hatred or other emotion against the religious belief of Islam. In the context of the seminar as a whole, however I would regard them as capable of inciting serious ridicule or contempt of Muslims, because of their religious belief.

Finally, it is important to consider the effect of statements made at the seminar which exhorted participants to love and “witness” to Muslims. As Nettle, J.A. points out at [77] many of these were not referred to at all by the Tribunal. While other statements to this effect were mentioned in his Honour’s reasons they were mainly taken into account for the purpose of determining whether Pastor Scot’s presentation was balanced, rather than as bearing on the question of whether they ameliorated the effect of other statements made in the Seminar.

I agree that these statements must be taken into account in deciding whether s.8 was breached. I should make it clear however that I do not regard the invocation to love Muslims, while attacking their beliefs, as necessarily inconsistent with a breach of s.8. To do so would encourage those who incite hatred or other relevant emotion to combine egregious statements about a particular racial or religious group, with expressions of feigned concern for the targeted group. It cannot be overlooked that historically words inciting hatred or contempt of members of a racial or religious group have often been accompanied by expressions of real or assumed concern about the persons against hatred or other relevant emotion is incited.

Did the Tribunal err in its application of s.11?

Like Nettle, J.A., I am not satisfied that the Tribunal erred in the way it applied s.11. I agree with his view as to the process a court or tribunal should follow in deciding whether the requirements of s.11 are satisfied.[117] I also agree with him that the question whether words or conduct is engaged in reasonably for a religious purpose must be judged by the standards of reasonable persons who are members of an open and just multicultural society.[118] The Racial and Religious Tolerance Act reflects the policy judgment that those who derive benefits from living in a society in which they can express their own views about religion must also accept some limits on that freedom. Fixing the standard by reference to the standards of reasonable members of an open and just multicultural society protects the freedom of minorities to express religious views which may be regarded by the majority as foolish or abhorrent, but it also imposes limits on that freedom, in order to foster the tolerance which is necessary to prevent the undermining of the values on which the society is based. As the Canadian Supreme Court has commented in the context of anti-Semitic vilification in R. v. Keegstra, such racist or religious propaganda “…can undermine the very values which free speech is said to protect.”[119]
[117]At [89]–[93].
[118]At [94].
[119]R. v. Keegstra [1990] 3 SCR 697 at 49.

Does s.8 breach the freedom of political communication implied in the Commonwealth Constitution?

The appellants also submit that s.8 of the Racial and Religious Tolerance Act infringes the implied freedom of political communication afforded by the federal Constitution. They submit that s.8 substantially restricts communications including political communications, that many of the statements that were the subject of the complaints against the appellants fell into this category and that because s.11 only excepted communications which were “balanced’ or “not one-sided” it substantially restricts freedom of political communication. The Attorney General for the State of Victoria intervened,[120] in support of the constitutional validity of the Act, and the respondents have adopted the submissions of the Attorney-General insofar as they are relevant to this question.
[120]Pursuant to section 78A of the Judiciary Act 1903 (Cth).

The freedom of communication on political and governmental matters was first recognised in Australian Capital Television v. Commonwealth[121] and Nationwide News v. Wills.[122] Its origin and scope was clarified in Lange v. Australian Broadcasting Corporation.[123] In Lange, the High Court made it clear that the implied freedom could be inferred from the provisions of the Constitution which provide for the institutions of representative and responsible government.[124]
[121](1992) 177 C.L.R. 106.
[122](1992) 177 C.L.R. 1, see also Theophanous v. Herald and Weekly Times (1994) 182 C.L.R. 104 at 208, 209.
[123](1997) 189 C.L.R. 520.
[124]Specific mention was made of ss.1, 4, 6, 7, 18, 13, 24, 28, 30, 49.62.64, 83, 128.

In consequence, the extent to which communication on political and governmental matters will be protected from legislative intervention is

“limited to what is necessary for the effective operation of that system of representative and responsible government provided for by the constitution.”[125]

[125]Ibid at 561. This was accepted in the appellant’s outline of submissions [94], Submissions of the Attorney General at [2(1)], and the submissions of the ICV, insofar as they adopt the submissions of the Attorney General on this point.

In APLA Ltd v. Legal Services Commissioner (New South Wales)[126] it was held that two questions arise in considering whether a law infringes the implied freedom. For the appellants to succeed, they must show[127] that

·section 8 of the Act effectively burdens the freedom of political communication, in its terms, operation or effect.[128] If it does not restrict political speech, then the appellant’s challenge on this ground will fail.
·If it does burden political communication in this way, the question is whether s.8 is reasonably appropriate and adapted to serve a legitimate end in a manner which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government.[129]

[126] (2005) 79 A.L.J.R. 1620, at [58]. See also Coleman v. Power (2004) 220 C.L.R. 1.

[127]The burden lies with the communicator, see APLA Ltd v. Legal Services Commission (2005) 79 A.L.J.R. 1620 at 1637 [69].

[128]Lange at 567, approved of in APLA Ltd v. Legal Services Commissioner (New South Wales).

[129]APLA Ltd v. Legal Services Commissioner (New South Wales) (2005) 79 A.L.J.R. 1620, at [58].

If s.8 does to burden political communication and is not reasonably appropriate and adapted to a legitimate end, then the implied freedom would operate “as a restriction on legislative power”[130] and the section would be invalid to that extent.[131]
[130]Lange at 561.
[131]Refer for example to Cunliffe v. The Commonwealth (1994) 182 C.L.R 272 at 327, where the Court stated: “The implication is negative in nature: it invalidates laws and consequently creates an area of immunity from legal control, particularly from legislative control.” This statement was cited with approval in Lange at 560.

In my view s.8 does not restrict communications about government or political matters. Even if it does so, I consider that it satisfies the second limb of the test, for the reasons discussed below.

Does s.8 burden political communication?

In answering this question, it is necessary to determine in what respect s.8 of the Act impairs the implied freedom[132]. This issue has been considered in a number of recent cases.[133] Perhaps the case that has provided more clarity as to the content of the implied freedom is that of Lange v. Australian Broadcasting Corporation,[134] a case in which the former Prime Minister of New Zealand claimed damages for defamation from the ABC, which had broadcast a program alleging corruption and bribery. The High Court said that

“freedom of communication of matters of government and politics is an indispensable incident of that system of representative government which the Constitution creates that the members of the House of Representatives and the Senate shall be ‘directly chosen by the people’ of the Common wealth and States respectively.”[135]

[132]Refer to Cunliffe at 379.

[133]See for example APLA Ltd v. Legal Services Commissioner (New South Wales) (2005) 79 A.L.J.R. 1620; Lange v. Australian Broadcasting Corporation (1997) 189 C.L.R. 520; Herald & Weekly Times Ltd v. Popovic (2003) 9 V.R. 1.

[134](1997) 189 C.L.R. 520.

[135]At 559.

The freedom to communicate on political and governmental matters between electors and elected representatives, between the electors and the candidates for election and between the electors themselves is central to this system of representative government.

The matters covered by the implied freedom cover communications which concern the functioning of government;[136] policies of political parties and candidates for election;[137] voting in a referendum;[138] the conduct of the executive branch of government,[139] including ministers and the public service;[140] the conduct of statutory authorities and public utilities obliged to report to the Legislature or to a Minister;[141] discussion by electors of political matters;[142] and information concerning matters relating to the exercise of public functions and powers vested in public representatives and officials.
[136][1997] 189 C.L.R. 520 at 560.
[137]Ibid at 560.
[138]Ibid at 561.
[139]Ibid.
[140]Ibid.
[141]Ibid.
[142]Ibid at 568.

In Herald & Weekly Times Ltd v. Popovic[143] it was held that the implied freedom of political communication did not cover a communication which libelled the Deputy Chief Magistrate, by implying that that she had prejudged a hearing, bullied a prosecutor and misconducted herself to the extent that her removal from office was warranted. Winneke, A.C.J. held that a journalist’s criticism of a magistrate’s performance in handling particular proceedings, even to the point of inferring that he or she was unfit to hold office, was not a discussion of government or political matters which would attract constitutional protection.[144] He acknowledged however that in some circumstances discussion of the judiciary could so affect the executive government that it could come within the implied freedom.[145] He noted that

“It is, of course, not possible to construct a formula for more narrowly defining the limits of what is, and what is not, the type of discussion which will attract the freedom which the constitution protects. The concept is cast, designedly, at such an abstract level as to preclude that.”[146]

[143](2003) 9 V.R. 1.

[144]Ibid at [6].

[145]Ibid at [10]. Examples could include discussion of the appointment of judges or the exercise of powers of removal.

[146]Ibid at [6] See also Warren, A.J.A. at [503] to [507].

The implied freedom of political communication is derived from the need to protect the institutions of responsible and representative government. The mere fact that legislation is capable of restricting communications which contain some political material is not sufficient to invalidate it. As was made clear in Cunliffe, the question of invalidity is not answered “merely by fastening on to particular instances unless they are of such a nature as to impugn [the legislation] in its entirety or to require the reading down of the legislation or severance of any part”.[147] In my view s.8 does not infringe the implied freedom.
[147]See n. 132 above at 384.

Is the restriction reasonably appropriate and adapted to serve a legitimate end?

Legislation which infringes the implied freedom is nevertheless valid if it is reasonably appropriate and adapted to serve a legitimate end in a manner which is compatible with the maintenance of a system of representative and responsible government.[148] In Cunliffe v. The Commonwealth,[149] the High Court was asked to consider whether laws preventing unregistered persons from providing immigration assistance breached the constitutionally implied freedom of communication. It was argued that restricting the provision of advice in this way burdened the freedom of political communication. Mason, C.J. and Deane, J. were in the minority in finding that these provisions burdened the implied freedom of political communication.[150] Deane, J. noted however that

“the Constitution’s implication of freedom of political communication and discussion is not an implication of an absolute or uncontrolled licence to say or write anything at all in the course of communication or discussion of political matters. It is an implication of freedom under the law of an ordered society.”[151]

[148]APLA Ltd v. Legal Services Commissioner (New South Wales) (2005) 79 A.L.J.R. 1620, at [58], see also Cunliffe v. Cth (1994) 182 C.L.R. 272 at 388 per Gaudron, J.

[149](1994) 182 C.L.R. 272.

[150]Ibid per Mason, J. at 298-299, Deane, J. at 341. Brennan, J. at 328-9 and Dawson, J. at 365 held that these restrictions were not inconsistent with the maintenance of a system of representative government. McHugh, J. at 395 rejected the view that the freedom of political communication is impliedly protected by the Constitution. Toohey J considered that the plaintiffs had not demonstrated that the provision unduly limited freedom of communication.

[151]Ibid at 337.Deane, J. held that restrictions on the provision of voluntary immigration assistance could not be justified. Gaudron, J. agreed with this view at 390.

Even if s.8 does burden political communications (which in my view it does not), it is compatible with the requirements of a representative democracy to place reasonable limits on the freedom to communicate views which incite hatred or other relevant emotions against people because of their religious beliefs.[152]
[152]In R. v.Keegstra [1990] 3 SCR 697 it was held that the importance of preventing the harm caused by hate propaganda was of sufficient importance to warranted overriding a constitutional freedom of expression.

Were the orders made by the Tribunal within power?

I agree with Nettle, J.A. that s.136(a)(iii) empowers the Tribunal to order corrective advertising or an apology.[153] I also agree that, if Orders are made against the appellants following a re-hearing, such Orders should identify the parts of the various statements which offend the section and prohibit republication of identical statements or statements made in similar terms.[154]
[153]At [102].
[154]At [104]-[110].

ANNEXURE

This statement is made pursuant to an order of the Victorian Civil and Administrative Tribunal (“VCAT”). In November 2002 the Equal Opportunity Commission of Victoria referred a complaint by the Islamic Council of Victoria against Catch The Fire Ministers Inc, Pastor Daniel Nalliah and Pastor Daniel Scot to VCAT. On 17 December 2004, VCAT found the complaint was proven and that each of the respondents had breached s.8 of the Victorian Racial and Religious Tolerance Act 2001, and further that none of the defences under the Act had been made out. The complaint concerned statements made by Pastor Daniel Scot in a seminar organised by Catch The Fire Ministries and held on 9 March 2002 in Surrey Hills, articles written by Pastor Daniel Nalliah in the Newsletters of Catch The Fire Ministries Inc and an article written by an American called Richard Braidich published on Catch The Fire’s website in 2001. VCAT found the seminar was not a balanced discussion, that Pastor Scot presented the seminar in a way that was essentially hostile, demeaning and derogatory of all Muslim people, their God, their prophet Mohammed and in general Muslim beliefs and practices, that Pastor Scot was not a credible witness and that he did not act reasonably and in good faith. VCAT found the statements by Pastor Nalliah in the newsletter were likely to incite hatred towards Muslims and sought to create fear against Muslims, that Pastor Nalliah was not a credible witness and did not act reasonably and in good faith. Finally, VCAT found that the statement by Mr Braidich made no attempt to distinguish between mainstream and extremist Muslims, and incited hatred and contempt towards people who are Muslims, that Pastor Nalliah performed an act inciting hatred and contempt against Muslims by placing this article on the website and that Pastor Nalliah did not act reasonably and in good faith in doing so. Each of the respondents acknowledges the findings of VCAT that the statements breached the Racial and Religious Tolerance Act 2001 (Vic) and will in future refrain from making, publishing or distributing (including on the internet) any statements, suggestions or implications to the same or similar effect.
This statement is issued by Catch The Fire Ministries Inc, Pastor Daniel Nalliah and Pastor Daniel Scot.

“A person discriminates against another person … if on the grounds of the status or by reason of the private life of the other person the first mentioned person treats the other person less favourably ….”

[2006] VSCA 284

14 December 2006