Cottrell v Ross

The case of Cottrell v Ross involved an appeal against conviction by the respondent, Ross, following his conviction in the Magistrates’ Court for serious religious vilification. The respondent was found guilty of publishing an offensive video on Facebook, depicting a mock-beheading in the style of the Islamic State, which was considered offensive to a Muslim. The appellant, Cottrell, sought to appeal the conviction on the basis that section 25(2) of the Racial and Religious Tolerance Act 2001 was constitutionally invalid. The court was required to determine whether the section, which exempted certain activities from the definition of serious religious vilification, was in breach of the Charter of Human Rights and Responsibilities 2006, and if so, whether it was constitutionally valid.

The legal issues before the court were whether section 25(2) of the Racial and Religious Tolerance Act 2001 was constitutionally valid, and if not, whether it could be severed from the rest of the Act. The court was also required to consider whether the respondent's actions constituted serious religious vilification under the Act, and if so, whether the exemption provided by section 25(2) applied. The court needed to balance the rights under the Charter of Human Rights and Responsibilities 2006, specifically freedom of speech, with the protection of religious groups from serious vilification.

The court held that section 25(2) of the Racial and Religious Tolerance Act 2001 was not constitutionally valid as it was inconsistent with the right to freedom of speech under the Charter of Human Rights and Responsibilities 2006. The court found that the exemption provided by section 25(2) was overly broad and did not sufficiently protect the rights of religious groups, while also unduly restricting freedom of speech. The court found that the exemption could not be severed from the rest of the Act, and therefore the entire section was invalid. The court also found that the respondent's actions constituted serious religious vilification under the Act, but as section 25(2) was invalid, the exemption did not apply.

The appeal was allowed, and the conviction of the respondent was quashed. The court ordered that the respondent be acquitted of the charge of serious religious vilification. The court further ordered that the invalidity of section 25(2) of the Racial and Religious Tolerance Act 2001 be referred to the Victorian Parliament for consideration and amendment.