Religious vilification - the case of the Two Dannys

This page contains the key dates, a summary of the case plus a detailed description of the case.

The text is also available as a document to download and print:

A SIX page Summary and Overview of the case 
This was updated in February 2009 - it summarises the case from beginning to end.

Key dates:

After March 2002 - Complaint made by the Islamic Council of Victoria to the Victorian Equal Opportunity Commission.

CTFM and Pastors Nalliah and Scot respond to the complaint.

Conciliation at the Equal Opportunity Commission - unsuccessful.

ICV takes case to VCAT.

Mediation session unsuccessful in resolving case.

15 October 2003 - Hearing begins in VCAT..

March 2004 - Hearing concludes

17 December 2004 - Decision handed down

2-3 May 2005 - Penalty hearing

22 June 2005 - Penalty handed down

Appeal made to the Court of Appeal

19 August 2005 - Leave to appeal granted

21- 22 August 2006 - Appeal heard in Court of Appeal

14 December 2006 -Appeal decision - appeal allowed

22 June 2007 - Case resolved at mediation

Christianity on trial
- Catch the Fire Ministries and the Islamic Council

By Jenny Stokes, Research Director, Salt Shakers - February 2009.

Summary

The complaint of religious vilification made against two pastors, Daniel Scot and Danny Nalliah and Danny's ministry Catch The Fire Ministries (CTFM) by the Islamic Council of Victoria (ICV) and three complainants, under Victoria's Racial and Religious Tolerance Act (which came into effect in January 2002) has attracted worldwide attention and concern.

The complaint was about a seminar held by CTFM on Islam in March 2002, where Pastor Scot was the speaker. He spoke on 'Jihad in the Qur'an', a comparison of the Bible and the Qur'an and reaching out to Muslims. It took more than five years, and hundreds of thousands of dollars, before the case was finally resolved in June 2007.

The three complainants had attended sections of the seminar and lodged a complaint with the Islamic Council of Victoria.

The Islamic Council of Victoria also complained about a Newsletter published by CTFM and an article on Islam by an American that had been placed on the CTFM website. The complaint was originally considered by the state's Equal Opportunity Commission, where a conciliation meeting was held during 2002.VCAT hearing. The complaint was then taken to the Victorian Civil and Administrative Tribunal (VCAT) by the Islamic Council and the three complainants where, after unsuccessful 'mediation', a hearing began on 15 October 2003. The hearing went for over 30 days, concluding in March 2004. Witnesses were called for both sides and cross-examination was extensive.

VCAT Decision

Judge Michael Higgins announced his decision (Summary decision) on 17 December 2004 and the final decision was released on 22 December 2004. He found that both pastors, Daniel Scot and Danny Nalliah, and Catch the Fire Ministries had breached the Racial and Religious Tolerance Act and incited hatred and contempt and ridicule against Muslims. He found that the discussion was not done "reasonably and in good faith" and therefore found that the exemption for religious discussion in Section 11 of the Act did not apply.

The decision by Judge Higgins  - click here.

Following the decision, the pastors lodged an "Originating Motion" with the Supreme Court of Victoria citing procedural and factual errors in the decision.

Remedy/penalty

Judge Higgins held a 'remedy' or 'penalty' hearing on 2-3 May 2005 and then handed down his decision on remedies on 22 June 2005, more than three years after the seminar was originally held.

He ruled that the pastors place a statement (proposed by the ICV) in the CTFM newsletter and place it on the CTFM website for 12 months as well as place it in 8 newspaper advertisements (at an cost of around $68,000).

He also ruled that he wanted CTFM and the pastors to undertake NOT to make ANY statements/publications with the SAME OR SIMILAR EFFECT in the future. If they fail to make such an undertaking he said he would make further orders - probably an injunction to stop them from making such statements.

The Decision on 'Remedies' - click here.

At a hearing on 9 August, Judge Higgins ordered that an injunction be imposed on the pastors concerning writing and speech since they had not given the undertakings he requested.

Appeal

The Pastors then appealed against the decision and 'remedies' to the Supreme Court of Victoria (Court of Appeal).

The Leave to Appeal was granted by the Court of Appeal on 19 August 2005.

All grounds were allowed. It was expected that the Court may take up to 12 months to hear the Appeal. The judge stayed the order requiring advertisements but not the injunction on speech and publications.

The pastors and Catch the Fire Ministriesengaged new lawyers (Moores Legal) and a barrister for the appeal. The cost of the appeal was over $300,000.

The appeal was held in the Court of Appeal on August 21 and 22, 2006.

Appeal allowed

On 14 December 2006, the Court of Appeal (Supreme Court) of Victoria ALLOWED the appeal sought by Catch The Fire Ministries, Pastor Danny Nalliah and Pastor Daniel Scot against the VCAT decision made by Judge Higgins.

Click here for our page on the Appeal decision, with a link to the full decision, summary of the decision and media articles.

The three judges ruled that the decisions be set aside, and that the case return to VCAT for a new hearing - on the same evidence - by a different judge.

The decision also highlighted errors made in the original decision (see more detail below).

Back at VCAT - Mediation

The case returned to VCAT in early 2007. At a 'Directions' hearing it was decided that a further attempt be made at 'mediation' prior to going to a new hearing.

The case was finally resolved at mediation on 22 June 2007. The resolution states that all parties acknowledge the right to robustly debate religion.

The joint statement  - click here to read it.

Detailed description of the case

The Basis of the complaint

Catch the Fire Ministries ran a seminar on 9 March 2002, to help Christians understand Islam and the events of September 11, and assist them to minister and reach out, in love, to the growing Muslim community in Melbourne.

Pastor Daniel Scot (from Queensland, but originally from Pakistan) was the speaker at the seminar. During the seminar he noted that he was teaching what the Qur'an and hadiths and classical Islamic jurisprudence teach. He said that not all Muslims read the Qur'an fully or believe those teachings. He also encouraged his listeners to love Muslim people.

Three Australian Muslim converts attended the seminar and, with the Islamic Council of Victoria (ICV) backing them, lodged the complaint about statements made at the seminar, comments made in a Catch the Fire newsletter and an article about Islam on their website.

Conciliation at the Equal Opportunity Commission (in 2002) and mediation at the Victorian Civil & Administrative Appeals Tribunal (VCAT) in 2003 failed to resolve the matter, so the matter then went to a hearing at VCAT in Melbourne.

The hearing

The hearing started on October 15, 2003 and was heard by Judge Michael Higgins. CTFM barrister David Perkins raised a point of law, that since the federal constitution gives an implied right to free speech, and federal law overrides state law, the Tribunal did not have the power to hear the case and that it should be sent to the Victorian Supreme Court for a decision - but the judge ruled to continue hearing the case.

On the first day of the hearing, representatives from the Uniting Church and Catholic Church asked to intervene in the case. The Uniting Church wanted to intervene on behalf of the Muslims and the Catholics applied to intervene independently on the basis of promoting religious harmony. The judge reserved his decision but decided in December 2003 that they could not intervene.

The Islamic Council also successfully asked to have the whole seminar considered in the complaint, not just the parts specified in their original complaint.

The three complainants - Jan Jackson, Malcolm Thomas and Domenyk Eades - and the President of the Islamic Council were all cross-examined.

The three Muslim converts, who attended the seminar and complained, acknowledged that their attendance at the seminar had been organised by contacts within the Islamic Council.

Cross examination of Jan Jackson revealed that her friend May Helou, who ran the Muslim Support Group for 'reverts', was on the ICV Executive and who organised for her to attend the seminar, was at the time employed by the Equal Opportunity Commission to facilitate the introduction of the legislation.

Yasser Soliman, President of the Islamic Council, was questioned as to whether the Islamic Council was representative of all Muslims.

Expert witnesses for the ICV
The Islamic Council put up several 'expert witnesses -

Catholic priest Fr Patrick McInerney, from the Columban Centre for Christian-Muslim Relations in Sydney, who is involved in interfaith relationships.

Gary Bouma- an Anglican priest who is also involved in interfaith relationships and research on religion. He is also a Professor of Sociology at Monash University.

He told the Islamic Council he would assist them before reading the transcript of the seminar. Further questioning revealed he disliked "Charismatic Christianity".

Dr A K Kazi - a Muslim academic who had been an Associate Professor at the University of Melbourne.

Witnesses for Catch the Fire Ministries

When the hearing resumed on 12 February 2004, the judge ruled that additional witnesses proposed by Catch the Fire Ministries - Fr Paul Stenhouse (a Catholic priest) and Dr Mark Gabriel (a former Muslim who was a lecturer at Al Azhar University in Cairo and an Imam - now a Christian) - would not be allowed.

Catch the Fire Ministries witnesses were then cross-examined - Daniel Scot, Danny Nalliah, Dr Mark Durie, and two people who attended the seminar.

Decision
Submissions were made by each side. Judge Higgins considered those and announced his decision on 17 Dec 2004.

The judge found that the pastors had breached the Racial and Religious Tolerance Act (Section 8) and incited hatred, ridicule and contempt. He found that the pastors did not act reasonably and in good faith and therefore the exemption for religious discussion, in Section 11, did not apply.

The Judge found that certain statements were vilifying but the list of statements he attributed to Pastor Scot was wide-ranging and in various places incorrect.

For example in saying Pastor Scot said "The Qur'an promotes violence and killing" (which is not what he said) he proposed to ban Pastor Scot from speaking about jihad references in the Qur'an. He said Pastor Scot said "A thief has his hand cut off for stealing" and that this incited hatred against Muslims - despite the fact that the Qur'an says that in Sura 5:38.

He attacked Daniel Scot's credibility for not reading the next verse in the Qur'an which says Allah is merciful - despite the fact that all four schools of shari'a law recognise that a thief does have his hand cut off for stealing and the mercy or otherwise of Allah is not relevant before the cutting off of the hand.

He said Pastor Scot said "Muslims are demons" when he did NOT say that - in addressing the early history of Islam and the changing nature of the revelations received by Mohammed, Pastor Scot read the Qur'an Sura 46 verses 28 - 31, where the jinn (or demons) came to Mohammed and became Muslim.

See an excellent article by Dr Mark Durie called "Daniel Scot's (in)credible testimony" which identifies many of these factors.

The transcript of Daniel Scot's seminar - on Religion Law website - click here.

Catch the Fire Ministries lodged an 'Originating Motion' at the Supreme Court of Victoria, noting procedural errors and factual errors in the case and the decision. After an official appeal was lodged, the originating motion was withdrawn.

Penalty

Judge Higgins held a 'remedy' or 'penalty' hearing on 2-3 May 2005.

The penalty or remedy against Catch the Fire Ministries (CTFM), Pastor Danny Nalliah and Pastor Daniel Scot was handed down by Judge Higgins on 22 June 2005. This was more than three years after the original seminar was held.

Judge Higgins ordered that the pastors publish a given statement on the CTFM website and newsletter - and place the same notice in The Age and Herald Sun newspapers a total of eight times. The cost of these advertisements was estimated to be nearly $70,000!

The required 'statement' was basically identical to the one proposed by the Islamic Council of Victoria that summarises the judge's findings against CTFM. Although the 'statement' does not directly 'apologise' to the Islamic Council of Victoria for the statements made in the seminar on Islam and CTFM articles, media reports immediately called it an 'apology'.

One major concern is that the 'statement' re-interprets Judge Higgins' findings. One thing that Judge Higgins did was to differentiate between the Muslim god, Allah, and the Christian God.

The ICV statement now ordered by Judge Higgins for the two pastors to use in their statement, changes his words from "their god, Allah" to "their God" (capital G!). This has quite profound theological implications as it requires the pastors to acknowledge Allah as God.

The judge also gave the pastors 30 days to give an undertaking that they would "not make, publish or distribute in Victoria - or anywhere else in Australia - (including on the internet), whether in writing or orally and whether directly or indirectly, any statements and, or, alternatively, information, suggestions and implications, to the same or similar effect as those found by the Tribunal to have breached the Racial and Religious Tolerance Act 2001 (Vic)".

Judge Higgins said that if the pastors do not give such an undertaking, "it will be necessary for further orders to be made" to ensure they comply with his ruling. He made it clear that this could entail an injunction against such conduct. If the pastors do not obey the Tribunal orders they could be given a prison term of up to three months and a possible $7,000 fine.

After the hearing, Pastor Nalliah spoke to the media about the decision, saying that he could not apologise for the statements and was prepared to go to jail if necessary to defend freedom of speech and religion.

At a further hearing at VCAT on 9 August, Judge Higgins ordered that, since the pastors had not given the above undertaking, an injunction be imposed on them to stop them making or publishing such statements anywhere in Australia.

Appeal
Catch the Fire Ministries, Pastor Daniel Scot and Pastor Danny Nalliah then appealed against this decision and the 'remedy' to the Court of Appeal (Supreme Court) in Victoria.

The Court of Appeal heard their application for leave to appeal on Friday 12 August 2005. They granted leave to appeal on all the specified grounds including the conflict of the Act with the federal constitution on political and government speech, the definition of sections of the Act, issues relating to credibility, conclusions by VCAT relating to what the pastors said, the distinction between speaking about a religion and about a person and the meaning of 'incite'.

The Islamic Council opposed a number of the grounds.

In the interim up to the hearing of the appeal and the handing down of the Court of Appeal decision, the Court of Appeal stayed the requirement to publish the advertisements and the website article.

However they did not stay the injunction on speaking or publishing such statements. They noted that quoting from the Qur'an should not be an offence under the Act.Appeal hearing and decision

The pastors and Catch the Fire Ministries engaged new lawyers and a barrister for the appeal. The cost of the appeal was over $300,000.

The appeal was held in the Court of Appeal on August 21 and 22, 2006.

On 14 December 2006, the Court of Appeal (Supreme Court) of Victoria ALLOWED the appeal sought by Catch The Fire Ministries, Pastor Danny Nalliah and Pastor Daniel Scot against the VCAT decision made by Judge Higgins.

All three Justices - Nettle, Ashley and Neave - agreed that the appeal should be allowed. In particular, the argument that the Tribunal had wrongly interpreted Section 8 of the Racial and Religious Tolerance Act, the basic section that sets out the offence of religious vilification, was successful.

The Court gave orders that the Tribunal orders re 'penalties' (advertisement, not saying similar things) be set aside, and that the matter be sent back to VCAT to be heard by a different judge with no new evidence.

The Court also ordered that the costs relating to the previous Tribunal hearing and the next one be decided by the Member who hears it.

The Court ordered that the Islamic Council of Victoria pay half of the costs incurred by Catch the Fire Ministries and the pastors in conducting the appeal.

Pastor Danny Nalliah and Pastor Daniel Scot welcomed the decision, as the statements made by the Justices showed that the decision by Judge Higgins was flawed.

Click here for our page on the Appeal decision, with a link to the full decision, summary of the decision and media articles.

Back at VCAT - Mediation
The case returned to VCAT in early 2007.

At a 'Directions' hearing it was decided by the two parties that a further attempt be made at 'mediation' prior to going to a new hearing.

The case was finally resolved at mediation on 22 June 2007. The resolution states that all parties acknowledge the right to robustly debate religion.

The joint statement  - between CTFM and the ICV - click here to read it.

An agreement was reached as to the payment of the cost of the legal fees by the Islamic Council of Victoria, as ordered by the Court of Appeal.

Conclusion

More than FIVE years elapsed from the date of the original seminar in March 2002 to the final resolution in June 2007.

Conciliation, mediation, a hearing at VCAT and an appeal to the Supreme Court took a great deal of time and effort as well as a great deal of money.

The cost of this 'vilification' trial to the two pastors and Catch the Fire Ministries was well over $450,000 (plus an additional $400,000 in un-charged legal fees). This was mostly provided by Christians who were concerned at the restriction on freedom of speech and religion under the Racial and Religious Tolerance Act.

The Islamic Council of Victoria was represented by a law firm under the PILCH(Public Interest Law Clearing House) program, which is the pro-bono scheme run by Melbourne law firms to assist people and groups who wish to run cases in the 'public interest'. Unfortunately no public funding was available to the two pastors.

If one includes the cost to all parties, as well as the cost to the state of Victoria for considering the complaint at the Equal Opportunity Commission, hearing the case at VCAT and the Court of Appeal hearing the cost would be several million dollars.

Many people have expressed concern about the wider implications of this case - about what can and cannot be said about any other religious group, cult, sect, etc as they are all covered under this legislation.

Any criticism of any religious group could be deemed to be vilification, but you will not know until you receive a complaint letter from the Equal Opportunity and Human Rights Commission in the mail.

Further complaints have been made under the racial and Religious Tolerance Act.

• Two complaints have been made by witches against Christians. One of these was a complaint against Councillor Rob Wilson. This was settled during a VCAT hearing in August 2004. Click here for statement - 13 August, 2004.
• Another was a complaint against the Alpha course/Salvation Army by witch Robin Fletcher, who was in Ararat prison.
• Another complaint was made by an occult group, Ordo Templi Orientis, against Dr Reina Michaelson.

Victorian Premier Steve Bracks described Victoria as a 'very harmonious society' when he introduced the Racial and Religious Tolerance Act in 2001 but these cases, and the law itself, have created more division in society.

Our website has full details of the case, decision and penalty/remedy.

A description of the law, and the other cases, is on our website under 'Issues' - click here.

The tribunal and court hearings, along with the media coverage of the case, served to create more disharmony in the community.

Such a divisive piece of legislation directly attacks free speech, on matters of personal belief, in a way that has never happened before in this country.

Background of the Law

The original Discussion Paper on the Racial and Religious Tolerance Bill, launched by the Labor Government in December 2000, threatened to make it an offence to "offend, insult or humiliate" someone on racial or religious grounds.

Motive was to be irrelevant.

Sadly, some Christians thought we should not be alarmed about this proposal and others actually supported it.

After much lobbying, including some 5,000 submissions against the legislation, mainly from individuals, the final bill was watered down and passed in mid 2001. The Act does not define what 'vilification' actually is, but says that one cannot incite hatred, severe contempt or severe ridicule against someone on the basis of their race or religion.

There is an exemption for religious discussion 'done reasonably and in good faith'.

The law is in two parts - the first is under the Equal Opportunity Commission and then, if conciliation is unsuccessful, a hearing at the Victorian Civil and Administrative Tribunal. The complaint is being heard under this section of the Act. Section 8 of the Act (Part 2, Division 1).

There is a second section in the Act that is for criminal activities - this applies when there is intent to incite hatred etc or when physical violence is involved. It is this section of the Act that carries prescribed fines of $6000 for individuals and $30,000 for corporations. Serious Religious Vilification in Section 24 (Part 4).

[Racial and Religious Tolerance Act 2001 ]

Some amendments were made to the Act in 2006, following suggestions made by Justice Morris in his decision in the Alpha case. These were to stop trivial complaints going to VCAT, to introduce a definition of 'religious purpose', to strengthen the powers of the EOHRC etc. These are summarised at the EOHRC website.

Such a divisive piece of legislation directly attacks free speech, on matters of personal belief, in a way that has never happened before in this country.

Salt Shakers opposed the introduction of the Racial and Religious Tolerance Act and has closely monitored all the cases since. 

Various media reports:

Legislating Religious Correctness
Religious vilification laws converge with the Islamist vision of a blasphemy-free society.
Weekly Standard, 27/10/2005. By Daveed Gartenstein-Ross.