April 2005 page 43

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Human Rights: Exercising permissible limits on free speech

By KATIE ELLINSON
Katie Ellinsonis a senior legal officer with the Human Rights and Equal Opportunity Commission in Sydney.

LAST YEAR THE HUMAN RIGHTS and Equal Opportunity Commission (HREOC) launched its summary report on national consultations with Arab and Muslim Australians, IsmaE – Listen: National Consultations on Eliminating Prejudice Against Arab and Muslim Australians.¹ Consultation participants described their experiences of anti-Arab and anti-Muslim prejudice since 2001, following various local, regional, national and international crises. An important issue raised in the consultations was the lack of consistency in federal, state and territory laws concerning discrimination and vilification on the basis of religion.

A person who believes they have been discriminated against solely because of their religion has no legally enforceable rights in NSW or South Australia.² A person who believes they have been vilified because of their religion has no legally enforceable rights in the ACT, NSW, South Australia, Western Australia or the Northern Territory.³ At the federal level, HREOC has limited powers in relation to discrimination on the basis of religion in employment and acts by the Commonwealth, but does not have the power to order legally enforceable remedies.⁴

Victoria makes both religious discrimination and vilification unlawful under the Racial and Religious Tolerance Act 2001 (Vic). On 17 May 2001, Premier Bracks gave his second reading speech on the then Bill and explained that it “is confined to prohibit only the most noxious form of conduct which incites hatred or contempt for a person or group on the basis of their religion”. He also said that “[T]he Bill strikes an appropriate balance with freedom of expression by imposing liability upon only the most repugnant behaviour which actively urges and promotes hate. Freedom of expression has never been an untrammelled freedom of any person to do or say what they please”.

A recent decision of the Victorian Civil and Administrative Tribunal (VCAT), which is the first under the Victorian Act since it took effect on 1 January 2002, has practical application for NSW practitioners as it relates to the constitutionally permissible limits on free speech (which also arise in respect of NSW and federal vilification legislation). It also has possible application to the vilification laws that do apply in NSW.

There have been ongoing discussions as to whether similar laws to the Victorian Act should be introduced on a federal or state level in NSW.

Islamic Council of Victoria v Catch the Fire Ministries Inc

In Islamic Council of Victoria v Catch the Fire Ministries Inc,⁵ the Islamic Council of Victoria brought an action in a representative capacity, alleging a breach of s.8 of the Racial and Religious Tolerance Act 2001, which prohibits conduct “that incites hatred against, serious contempt for, or revulsion or severe ridicule of” others on the grounds of religious belief. It complained of an all-day seminar organised by Catch the Fire Ministries Inc in March 2002, which was billed as an “Insight into Islam”. Judge Higgins found that Pastor Scot, who led the seminar, made statements such as:

• the Qur’an promotes violence, killing and looting, encourages domestic violence and that Muslims are liars and demons;
• Muslims use money to induce people to convert to Islam and have a plan to overrun western democracy by the use of violence and terror, and Muslims intend to take over Australia and declare it as an Islamic nation;
• people we call terrorists are true Muslims; and
• Muslims in Australia are increasing at substantial rates and have influence or control over the migration of people to Australia (quoting incorrect figures).⁶

A newsletter written by the second respondent, Pastor Nalliah, described Muslims as “the enemy” and included an article entitled “2020 – Will Australia be a Christian Country?”. His Honour found that the article included statements such as “Muslims obtain visas from the very countries where Christians are being raped, tortured and killed”, and goes on to ask “What stops the Muslims from doing the same in Australia?”.⁷

In addition, an article entitled “An Insight Into Islam by Richard” was found to suggest that Islam is an inherently violent religion and imply that Muslims endorse the killing of people based upon their religion. While the article was not written by Pastor Nalliah, he did place it on the Catch the Fire Ministries Inc website.⁸

Judge Higgins took into account expert evidence that the seminar did not provide a fair representation of Islamic religious beliefs and, having listened to tapes of the seminar, found that the ordinary, reasonable person would understand from the seminar that they were being incited to hatred towards or serious contempt or ridicule for Muslims.⁹ His Honour found that the seminar, the newsletter and the article all constituted acts which incited hatred, ridicule and contempt of Muslims, in breach of s.8 of the Act.¹⁰

The Racial and Religious Tolerance Act 2001 provides exceptions to the vilification provisions under s.11, where the conduct was engaged in reasonably and in good faith; for example, for any genuine academic or religious purpose, or in the public interest. However, his Honour held that the seminar, newsletter and article were neither reasonable nor acts done in good faith.¹¹ Orders about remedies will be made in 2005 after the VCAT has heard further submissions from the parties.

Conclusion

This case attracted considerable media attention, with debate centred on the issue of freedom of speech. However, the s.11 exceptions to the Act are specifically concerned to protect aspects of freedom of speech. As the second-reading speech makes clear, the legislation was drafted to carefully draw the boundary between the competing rights of freedom of expression and the right to be free of offensive behaviour based on religious hatred.

Endnotes

1. The report is available at http://www.humanrights.gov.au/racial_discrimination/isma/index.html For information about the work of the Legal Section of HREOC, including seminars, see http://www.humanrights.gov.au/legal/index.html

2. Discrimination on the basis of religion is unlawful in the ACT, Western Australia, Queensland, the Northern Territory, Tasmania and Victoria: Discrimination Act 1991 (ACT) s.7(1)(h); Equal Opportunity Act 1984 (WA) s.53; Anti-Discrimination Act (1991) (Qld) s.7(i); Anti-Discrimination Act 1992 (NT) s.19(1)(m); Anti-Discrimination Act 1998 (Tas) ss.16(o) and 16(p); Equal Opportunity Act 1995 (Vic) s.6(j). In NSW, discrimination on the ground of religion is not unlawful, however discrimination on the ground of ethno-religious origin is. A recent decision of the Administrative Decisions Tribunal indicates that in order to establish a complaint under the ethno-religious ground, a person cannot rely solely on their religion, such as Islam: Khan v Commissioner, Department of Corrective Services [2002] NSWADT 131.

3. Vilification based on ‘religion’ is against the law in Queensland, while vilification based on ‘religious belief or activity’ is against the law in Victoria and Tasmania (the Tasmanian provisions also cover vilification based on ‘religious affiliation’): Anti-Discrimination Act 1991 (Qld) ss.124A, 131A; Anti-Discrimination Act 1998 (Tas) s.19; Racial and Religious Tolerance Act 2001 (Vic) ss.8, 25.

4. The President, on behalf of HREOC, may report to the federal Attorney-General concerning his findings, reasons and any recommendations, and this report is tabled in Parliament.

5. [2004] VCAT 2510.

6. Ibid [383].

7. Ibid [391].

8. Ibid [394].

9. Ibid [382], [384].

10. Ibid [395].

11. Ibid [388]-[390]; [393]-[394].