Judicial Disapproval of “Religious Vilification” Laws
There has been increasing concern at the existence of so-called “racial tolerance” laws. The Victorian Racial and Religious Tolerance Act 2001, for example, prohibits religious “vilification”, a disturbingly vague term whose uncertainty is increased by its definition as including behaviour giving rise to “serious contempt . . . or revulsion” or “severe ridicule”.
A difficulty with legislation of this kind is that it can be used selectively to pursue persons held in government disfavour. 1 For example, there has been no reported instance of a decision applying it against the many Muslims who abuse Christians and Jews, but it was recently applied in Victoria by Judge Higgins (who is seen as a political appointee by the increasingly extreme government of Mr. Bracks) against Pastors Nalliah and Scot, who at a seminar made various comments in regard to the Islamic religion. These comments were moderate in tone and supported by references to unpleasant passages in the Koran. Being reasonable and made in good faith they should have been held to fall within the defence provided in section 11 of the Victorian Act, but in a poorly reasoned judgment containing factual errors Judge Higgins held otherwise.
However more recently Justice Stuart Morris, the President of the Victorian Civil and Administrative Tribunal, criticised the legislation severely. His comments are significant, because Justice Morris has been viewed as a person with pro-Labor Party leanings, and was in fact appointed to his position by the Bracks Government.
Justice Morris was presented with a case that illustrated well the dangers of the legislation. One Robin Fletcher, described as “a convicted sex offender and self-proclaimed witch” and as currently serving a ten-year sentence for drugging, enslaving, sexually assaulting and prostituting two fifteen-year-old girls, commenced proceedings under the Victorian statute against the Salvation Army, claiming that the Salvation Army’s Alpha Christianity course, offered in jails, discriminated against him on the ground of his Wiccan religion. 2
Justice Morris dismissed Mr. Fletcher’s claims on 1 August 2005, holding that they were “nowhere near the mark” of religious vilification. (It was not necessary for him to consider the complaints by the Islamic Council of Victoria against Pastors Nalliah and Scot, but equally they were “nowhere near the mark” of religious vilification.)
Justice Morris was so disturbed by the Victorian statute that he stated:
“I recommend that consideration be given to the amendment of the Act to require a person seeking to pursue a claim before the tribunal to obtain the leave of the tribunal before the proceeding is initiated. . . The question whether leave should be given should be decided on the papers.”
But although this proposed restriction is superficially attractive it has given rise to criticism.
The President of Liberty Victoria, Mr. Brian Walters S.C., commented:
“ Generally speaking, if you are going to make a claim that you have been discriminated against, I think it out to be out there [in public]. If you are going to have disputes resolved in a tribunal of this nature it has to be transparent, otherwise there will be a lingering concern that decisions are made privately.”
These concerns are well-founded. The Victorian statute — and similar statutes in some other States, for other States such as New South Wales have declined to enact similar legistation – contains fundamental vices that cannot be cured by permitting a tribunal (many of whose members are political appointees) to decide which claims should proceed and which should not. The statute is defective in its basic purpose, and it should be repealed.
The history of the legislation is instructive. Public comments were sought before it was enacted, and the response was overwhelmingly negative. A large majority of those responding were opposed to legislation of this kind.
Despite this general opposition the Bracks government proceeded to enact the statute. Contemporary indications were that Mr. Bracks had never intended to take notice of public opposition and that the seeking of public opinion was a merely cosmetic strategy. It is of interest that following Justice Morris’s criticisms obstructive comments were made by a “State Government spokeswoman”, one Ms. Sofia Dedes. Ms. Dedes said:
“Today’s decision by V.C.A.T. on the Robin Fletcher matter highlights that the Act is working effectively in distinguishing between genuine and vexatious complaints. The Bracks government believes the Act has struck the right balance between freedom of speech and vilifying behaviour.”
One may wonder whether Ms. Dedes had not read Justice Morris’s observations or if there is a more sinister explanation for her comments.
The history of the Racial and Religious Tolerance Act provides unfortunately a characteristic example of the attitudes of the government of Mr. Bracks. Mr. Bracks has been selected by his party as a moderate-sounding and apparently personable leader who may appeal to many voters. However a leader may operate only within the context of his party. The Victorian Branch of the Labor Party is substantially influenced by its union supporters and by its Socialist Left faction, which continues to propagate doctrinaire views that were discredited long before the collapse of the Soviet Union. Mr. Bracks has survived only through the support of the overtly pro-Labor The Age, which has waged a continuous campaign in his favour.
1. See “The Totalitarian Effect of Anti-Free Speech Legislation”, National Observer, 2005, Number 64, pages 64-66.
2. The Herald Sun, 2 August 2005.