The Perils of Victoria’s Religious Tolerance Laws
by Charles Francis QC
Before I analyse some of the gross defects in Victoria’s Religious Tolerance Act 2001 and the issues which arise from its enactment, it is important to mention the historical background to so much of our present law. Although Australia is not a country with an established Church (as, for example, is England), it is a great mistake to equate our religious neutrality with a secular humanist country.
In the 19th century, the Australian colonies were in essence small Christian countries and when, in 1900, those colonies agreed to federate to form the Commonwealth of Australia, in the very first paragraph of our constitution we said “that humbly relying on the blessing of Almighty God” the colonies “have agreed to unite”. We recognised the importance of our belief in God and His guidance.
Although many Australians no longer practise any religion, census figures show that more than 69 per cent of Australians, in fact, claim to be Christians. In reality, we are, and always have been, a predominantly Christian country with a Christian heritage. In so far as we depart from that heritage or pass legislation which diminishes that heritage, we do so at our peril. Those who pass legislation in Australia need to recognise that any legislation should be enacted for what is in the best interests of a Christian country.
Whether or not we perform that duty, Australian Christians have a continuing duty to proclaim and recognise the truth of Christianity, but the truths of Christianity may now be regarded as a vilification of non-Christian religions. In so far as Christianity conflicts with non-Christian beliefs, that raises the inference that those beliefs are wrong, which some might regard as religious vilification.
It is important also to remember that in the Western world the roots of our individual rights and freedoms and the recognition of the rule of law had its origins in Christianity. It was the Christian Church which first proclaimed that no one was above the law. In the 15th century, the Franciscans were the first to elaborate legal theories of God-given rights, and that individual rights derived from a natural order sustained by God’s immutable laws of “right reason”.
It was in Christian countries that democracy first developed and the two are intimately linked. When Christianity withers, democracy tends to wither with it. In England, the Lord Chancellors played an important part in the development of common law rights. Those Chancellors were all Christians and a number were in fact ordained. Consequently, the common law which evolved had a strong Christian basis.
In the 13th century, a royal judge, the great Henry de Bracton (d.1268), wrote his famous treatise on English law and justice. For Bracton, state law could never depart from God’s higher laws. Similar statements were subsequently frequently articulated by many other great English lawyers.
In the middle of the 18th century, the famous William Blackstone (1723-1780) stated that no human law could be valid if it contradicted God’s higher laws, laws which maintain and regulate God’s natural human rights to life, liberty, and property. Freedom of speech is one of the most important ingredients of human liberty.
In the United States, which inherited the English common law, most Americans do not believe that individual rights originate with the government, but rather that they are inalienable rights coming from their Creator, and that those rights may not be impaired without due process of law. This philosophy of government was spelt out in the American Declaration of Independence and also, by implication, in the United States Constitution. Even the somewhat secular-minded Thomas Jefferson paid homage to this philosophy when he said, “The only firm basis of freedom is a conviction in the minds of people that their liberties are the gift of God.”
Professor David Flint has pointed out that we, in Australia, are the heirs of a wonderful gift — the way we govern ourselves and our nation. He has further said that such a society can only function effectively where there is freedom of speech. People need to be informed on all matters of public interest, and a democracy requires that both good and erroneous ideas be allowed to circulate in the market place, so that, inter alia, we are better able to determine what is good and what is in the best interests of our society, to determine where truth lies, and to determine what is evil. Religious beliefs have political consequences. Different religions have radically different values and can produce very different types of societies.
There are many legitimate objections to this Act, but the most important objection is that the Act is a serious attack on freedom of speech. This was illustrated by the case of the two Dannys, in which Christian Pastors Danny Nalliah and Daniel Scot of Catch the Fires Ministries were taken to court by the Islamic Council of Victoria for allegedly vilifying Islam. Basically, the case against them was that they drew attention to and read passages in the Koran which many would consider reflected unfavourably on the Muslim faith. In this context, it is significant to note that in England the Muslim Council of Britain made an application to have the Islamic scriptures, which include both the Koran and the hadiths, exempted from the proposed new law banning incitement to religious hatred which is being debated in the British Parliament.
During the hearing against the two Christian pastors before the Victorian Civil and Administrative Tribunal (VCAT), the complainant objected to the respondents’ counsel reading passages from the Koran, claiming that this amounted to “vilification” — and his objection was upheld. This illustrates some of the absurdities in the legislation.
Penalties imposed on the two pastors were entirely out of proportion to any alleged offence. Inter alia, they were required to place apologies in newspapers which would have cost them some $70,000.
The case demonstrated what should be obvious, namely that judges and administrative tribunals are not qualified to determine religious or theological matters and that the State has no business encroaching into matters of religious belief. There were many indications in His Honour’s judgement that he apparently did not follow certain key theological issues in the case, nor did he follow or understand much of the evidence. In the Notice of Appeal, it is asserted there were 106 such errors.
In its editorial of 24 June 2005, Melbourne’s Herald Sun rightly said of the Act that it was bad law and was always going to be bad law and that “the law strikes at the heart of freedom of speech”.
The Act is a serious inhibition to the proper testing of ideas in the marketplace. Such laws shut us off from properly discussing and gauging what is occurring in our own country. The terrorist acts committed in England, Bali and elsewhere, and recent events in Australia, have only served to emphasise the importance of being able to assess whether any and what religious beliefs are contributing to terrorist acts, and to be able to discuss such issues openly without risk of prosecution.
Many prominent Australians, including federal Opposition leader, the Hon. Kim Beazley, have criticised the Act as an attack on freedom of speech. Speaking of fairly similar legislation introduced into the New South Wales Parliament in June 2005, the then NSW Premier, the Hon. Bob Carr, in rejecting such legislation, said that “religious vilification laws can undermine the very freedom they seek to protect — freedom of thought, conscience and belief”.
Corresponding and strong attacks have been made by the House of Lords on the substantially similar English legislation. Some lords cited our Victorian disasters in support of their arguments. A vast majority of the House of Lords oppose the English Act in its entirety. Fear that the British Government will use its powers under the Parliament Acts to enact the legislation despite its rejection by the Lords has necessitated preparation of important amendments in an endeavour to protect free speech and evangelism.
It is very important to remember that within the House of Lords are some of the most outstanding brains in England. In particular, within the House are the Law Lords who are judges of the highest English court of appeal and also of the Privy Council. The Law Lords are some of the finest legal brains in the English-speaking world.
At its very inception, the Victorian Act reflected the erroneous concept that religion was an attribute of personal identity like culture, language or social custom. In its preamble, the Act assumes that the people of Victoria derive benefits from religious diversity, just as we may derive benefits from cultural diversity. This is a grave error. We derive benefits from truth, but in so far as religions may express concepts which are false, that falsity operates to the detriment of the State. To take but one example, what possible benefit can the State derive from the diverse belief of some Muslims that a husband has a right to physically chastise his wife?
The Herald Sun recently reported that a “religious diversity handbook” advises police to treat Muslim domestic violence cases very differently “out of respect for Islamic traditions and habits” and that Muslim wife-beaters should be treated with kid gloves. Just what respect are we supposed to give to a religious belief that it is permissible for husbands to chastise wives? Could anything more perfectly capture the moral bankruptcy of the Victorian Act? The Koran may tolerate wife-beating (Sura 4:34: “As for those from whom you fear disobedience, admonish them and send them to bed apart and beat them”), but why on earth should Australians refrain from criticising such religious beliefs?
Prior to the introduction of the Victorian Act, there had been singularly few problems in relation to religious vilification in Victoria. This was legislation which most Victorians did not want. Pressure for the legislation appears to have come from the Equal Opportunity Commission itself, and from some, but certainly not all, Muslim and Jewish groups. When the legislation was first debated, the Victorian Government received more than 15,000 submissions — almost all opposed to the legislation. So much for democracy in Victoria. The Equal Opportunity Commission may rejoice in this new field of litigation which it seems to have created for itself.
The Act is badly drafted and expressed in broad, vague and nebulous terms, filled with ambiguities and unclear terminology. It is entirely contrary to the long-established principle of law that offences need to be clearly defined. The essence of an offence occurs when a person makes a statement about a person’s religious belief, which that other person claims has vilified him. That was, in essence, what the case of the two Dannys was about. The fact that what you say is true, is reasonable and is said in good faith is not necessarily a defence. It is the reaction of someone else to your statement which creates the offence.
So far, what has eventuated suggests that the Act will be mainly used against Christians. In Victoria, we have already had notable cases. In 2003, Olivia Watts, a transvestite who claimed to be a witch, stood for election to the Casey Shire Council. Councillor Wilson asked the Pastors Network to pray against the occult forces in the area, and said he was concerned about the spread of witchcraft within the municipality.
The Pagan Awareness Network and Olivia Watts then brought proceedings for vilification against Councillor Wilson and the Council of the Casey Shire. David Garland of the Pagan Awareness Network (PAN) may well have been encouraged to proceed by a letter from the Victorian Attorney-General, quoted in the Herald Sun, which said, “We govern for all Victorians and that includes witches, magicians and sorcerers.” (Herald Sun, 1 November 2003, page 15). As the proceedings were likely to be long and costly, the respondents paid out an undisclosed amount by way of settlement to what you may think was a very unmeritorious claim.
In May, the Ortho Templi Orientis, a secret international society, instituted vilification proceedings against Dr Raine Michaelson, a crusader for child rights and Young Australian of the Year in 1997, because of an Internet article linking the society to paedophilia, satanic rituals and animal and child sacrifice.
As a result of what has happened in Victoria, New South Wales, South Australia and Western Australia have all abandoned similar legislation which they had considered introducing.
To me, the Act appears to be heavily weighted against a respondent. The complainant has the assistance of the Equal Opportunity Commission in bringing a complaint. The respondent has no corresponding assistance in proceedings which are likely to prove costly, even when the respondent is successful.
Much of the wording of the Act suggests a presumption of guilt and that the onus is on the respondent to prove his innocence. Where what is alleged is claimed to have been done in private, the onus is on the respondent to prove the acts were done in private. Similarly, where the question arises whether the respondent acted reasonably and in good faith, the onus of proving this situation rests on the respondent. The presumption is that the respondent acted unreasonably and in bad faith. In the context of religious beliefs, this could be a particularly difficult presumption to rebut.
It is a grave mistake to intermingle, as this Act has done, criminal and civil proceedings. It is most important that the civil provisions should be deleted entirely from the Act. The prospect of obtaining civil damages is a strong incentive to bring proceedings with little or no merit, as has already happened. If proceedings of a criminal nature are contemplated, the decision whether or not the conduct of the respondent warrants prosecution should be made by an independent prosecutor. The Act should be removed entirely from the Equal Opportunity Commission framework and its purview. Furthermore, any such criminal proceedings should be heard in a court, not an inferior tribunal such as VCAT, where the rules of evidence have no application.
In criminal matters, in assessing the conduct of a defendant, motive is often of the utmost relevance, yet Section 9 of the Racial and Religious Tolerance Act declares that the person’s motive in engaging in any conduct is irrelevant.
The defects of the Act are almost innumerable. To analyse them all would take many, many hours, probably some days.
I am appalled that what I regard as the persecution of two Christian pastors for their beliefs has occurred in the country in which I live, and I urge people to fight for the repeal of this Act.
• Paper presented by Charles Francis QC at the Christian Legal Society of Victoria, Seminar, 3 December 2005.
ABOUT THE AUTHOR:
Charles Francis, AM, QC, RF, is a former chairman of the Victorian Bar and former member of the Victorian State Parliament.
National Observer No. 68 -Autumn 2006