Appeal hearing - CTFM v ICV

Overview of the appeal hearing:

On the first day there was the contention by the Islamic Council barrister Mr Brind Woinarski QC that the Act does cover the vilification of religion and that if one vilifies Islam then one automatically vilifies Muslims. The following day was the claim by ICV barrister Ms Debbie Mortimer SC that truth is not a defence under the Act and is irrelevant!
Also of note was the statement by the State Solicitor General that 'reasonable' means balanced or not 'one-sided' and that an agreement after questioning that a 'one-sided presentation' would put the speaker within Section 8 of the Act - on questioning by the justices she said that it then depends on HOW you say it as to whether it incites hatred!
Most revealing!

The Catch the Fire Ministries barrister Mr Cameron McCauley SC put five main arguments - on the overall construction and wording of the Act; the specific wording of Section 8 especially that religion is not covered, only the 'person' by 'on the grounds of'; the exemption in Section 11 not being properly interpreted by Judge Higgins and that he did not properly consider the 'genuine religious purpose; the constitutional matter of limiting speech on government and political matters and that the orders prohibiting the pastors from speaking on matters with the 'same or similar effect' were too wide.

The full report as sent on the E-News list is below.

Report sent on E-News: (23 August 2006)

Catch the Fire Ministries - Report on appeal

Overview and Summary
On Monday and Tuesday (21-22 August) the Court of Appeal of the Supreme Court of Victoria heard the appeal by Catch The Fire Ministries against the verdict of Judge Higgins made in the Victorian Civil and Administrative Tribunal.

Judge Higgins found that Catch the Fire Ministries, Pastor Danny Nalliah and Pastor Daniel Scot had breached the Racial and Religious Tolerance Act and 'vilified' Muslims, "inciting hatred against, serious contempt for, or revulsion or severe ridicule of them. He also found that they did not qualify for an exemption because they did not act "reasonably" and in "good faith" for a "genuine religious purpose".
This decision was announced on 17 Dec 2004 and the penalty on 22 June 2005. (see references and links below)

Three justices sat as the Court of Appeal- Justice Geoffrey Nettle, Justice David Ashley and Justice Marcia Neave.

Prior to the appeal the justices had read the full decision and all the important documents and listened to the tapes of the seminar given by Pastor Scot.

During the hearing, Mr Cameron McCauley SC represented Catch the Fire Ministries, Mr Brind Woinarski QC and Ms Debbie Mortimer SC represented the Islamic Council of Victoria and Solicitor-General Ms Pamela Tate represented the Victorian Attorney General Hon Rob Hulls as the government intervened in the case regarding the constitutional validity of the RRTA.

The justices questioned each of these as they made their presentation to the Court.

The hearing concluded on Tuesday at around 4.15 pm.

The justices reserved their decision.

It is unclear when the decision will be announced - it could be up to 3 months (but possibly as soon as one month).

The hearing

Catch The Fire Ministries, Pastors Nalliah and Scot.
Mr Cameron McCauley SC, the barrister for Catch the Fire Ministries, took most of Monday presenting the case for the appeal by CTFM.

The appeal to the Court of Appeal can only be made on errors in law, not on errors of fact. This means that sections of Judge Higgins' ruling which are believed to be inaccurate cannot be redressed or appealed.

Five areas of argument were presented to the Court.

Firstly, Mr McCauley considered the construction of the Act and the interpretation of its wording and purpose. In this Mr McCauley claimed that the Act refers to the vilification of persons, not of belief systems or religions. He noted that vilifying conduct needs to be extreme behaviour and that vilifying conduct may be lawful when assessed against the exemptions.

The full Act - Click here.

Secondly the wording of the parts of Section 8 of the RRTA, the part that prohibits incitement on the grounds of a person's religious belief, was challenged.

Section 8 - click here.

In Section 8, he specifically looked at the meaning of 'on the grounds' of', 'engage in conduct that incites', the meaning of "hatred against...." and which legal authorities and cases provided the appropriate 'test' for deciding if vilification occurred. He maintained that Judge Higgins had used an inappropriate test.

Thirdly, he looked at the construction of the exemption in Section 11, especially the words 'reasonably' and 'in good faith'. He put that these can only be assessed in relation to the actual 'genuine religious purpose' and that because Judge Higgins had considered 'reasonably' and 'in good faith' separately to the actual 'purpose' that this decision and approach was invalid.

Fourthly the constitutional validity of the Act, in restricting communication on government and political matters, was challenged.

Finally the nature of the orders made by the Tribunal was challenged. These orders required the pastors to place advertisements in newspapers and also made an injunction that prohibited the pastors from making statements to the same or similar effect as those the judge found breached the Act (as specified in his decision). It was claimed that this was much too broad and restrictive on the pastors in what they could actually say.

ICV
Following this the Islamic Council of Victoria spoke, objecting to each of the arguments made by CTFM.

The ICV barrister Brind Woinarski, in addressing the issue of whether the Act prohibits vilification of religions made the statement that appeared in The Age...

"If one vilifies Islam, one is by necessary consequence vilifying people who hold that religious belief," Brind Woinarski, QC , told the court.

The assertion that religion itself was covered by Section 8 of the Act brought lively questioning from the justices, and this was repeated when the Solicitor General made similar assertions.

At times the questioning of each speaker was intense. Although I was there and took detailed notes, I do not intend to comment much on the questioning process!

The ICV maintained that the Act was appropriate and that it had been properly interpreted by Judge Higgins, including Section 8 and Section 11 for the exemption.

Reasonableness - There was some discussion about 'reasonableness' with a suggestion that this should mean balanced - or not one-sided.

Some of the ministers present at the hearing felt that this would have many of them standing in the dock, as it is impossible for a minister to present both sides of a debate or principle as one might expect in an academic lecture.....

Regarding the orders, Ms Mortimer SC maintained again that Judge Higgins had made the right decision and that the orders were appropriate.

At one point, when she said 'Truth is irrelevant' the gallery made a loud noise (shock?) and was told to be quiet. She maintained it was how it was said and to what audience that needed to be considered.

From The Age article today:

Justice Geoffrey Nettle said: "Surely that can't justify restraining them from saying something that said by anyone else would be legal? In the case of the newsletter, for example, Pastor Nalliah says many churches have closed down. What's wrong with saying that?"
Ms Mortimer replied: "The tribunal has found there is something wrong with saying it. Truth is not a defence, it's irrelevant to contravention of the act."

Victorian Government
Solicitor-General Pamela Tate made a presentation that mostly focused on the constitutional question, claiming that the Act was valid and that the implied right to freedom of political communication in the federal constitution (as established by High Court decisions) did not apply in this instance since the matters did not qualify as 'political.
Some question followed by the justices as to the nature of political discussion and the development of policy and public debate being part of 'political speech'.

Some discussion of 'reasonableness' was also given, with a suggestion of various approaches that could be taken.

Regarding 'reasonableness', again discussion ensued, with the SG maintaining that 'reasonable' should mean balanced. Justice Nettle asked if there could be cases that were unbalanced but 'reasonable' and she said she knew of no such cases. She said it was up to the 'reasonable person' to decide the test.
However she was then asked if an 'unbalanced' presentation could get 'relief' under the religious purpose exemption and she that the meaning of 'reasonable' could change... depending on the case!

Some discussion was also held on whether the Act covers comment on the secular activities of people who may have a particular religion.

The Solicitor General maintained that, even if the Court believed that the approach taken by the tribunal in this case was wrong and ruled that the Tribunal was in error, the Court should rule to maintain the validity of the Act.