For almost three years Pastors Danny Nalliah and Daniel Scot have been involved in answering a complaint made against them by the Islamic Council of Victoria (ICV) and three complainants, under Victoria’s Racial And Religious Tolerance Act.
The Act, passed in June 2001, prohibits conduct that “incites hatred against, serious contempt for, or revulsion or severe ridicule of” a “person or class of persons”.When these laws were proposed by the government, many of the major churches supported the legislation, provided that exemption was given to churches for religious discussion and that motive be considered.
However, the complaints that have been made since the law was implemented in January 2002 show that the exemption must be established by the person who is the subject of the complaint. That person has to show that the conduct was for a genuine religious purpose and was done “reasonably” and in “good faith”. The motive of the person is irrelevant under Section 8 of the Act. Motive is only considered in criminal cases of “serious religious vilification”. The fact that a pastor may speak of love for someone as the reason for wanting them to know the truth is not considered by the tribunal when a case is heard. In fact, truth itself is not a defence under the Act.
Just two months after the enactment of the legislation, Catch the Fire Ministries (CTFM), headed by Pastor Danny Nalliah, ran a seminar (on 9 March 2002), to help Christians understand Islam and the events of September 11, and to assist them to minister and reach out, in love, to the growing Muslim community in Melbourne. Danny, who is originally from Sri Lanka, had previously worked with the underground church in Saudi Arabia.
Pastor Daniel Scot was the speaker at the seminar. He was born in Pakistan and came to Australia to escape charges that were being made against him under Pakistan’s blasphemy law, which make it illegal to speak against Islam or Mohammed. He has studied Islam extensively, focusing on the Qur’an, the hadiths and classic Islamic law.
Three Australian Muslim converts attended the seminar. May Helou, who at the time was both an executive member of the Islamic Council of Victoria (ICV) and an employee of the Equal Opportunity Commission of Victoria (EOCV), encouraged the converts to attend. With the backing of the ICV, they made a complaint to the EOCV about statements made at the seminar, comments made in a Catch the Fire newsletter and an article about Islam on their website.
After the complaint was made, in April 2002, the EOCV sent a letter to each pastor, asking them to respond to the complaint. Each of them prepared an extensive response, pointing out where errors had been made in what they claimed had been said and giving Qur’an and hadith references to justify the statements that had been made. A recording of the seminar had been made and the transcript of the seminar was used to give accurate rebuttals to many of the complaints. (The transcript is available on the web at http://www.religionlaw.co.uk/interausac.pdf.)
The EOCV sent the responses to the Islamic Council—they had the option of deciding if they would accept the response or not. They sent their comments back to the EOCV.
At this point the EOCV can decide that there is not a case to answer and dismiss the complaint. They proceeded, instead, to the next step, which was to organise a Conciliation meeting, to see if the matter could be resolved. This was held later in 2002, but it failed to resolve the matter.
The Islamic Council of Victoria then took the complaint to the Victorian Civil and Administrative Appeals Tribunal (VCAT). A mediation meeting, which was held in early 2003, failed to resolve the matter.
A date was then set for hearing the complaint and it was scheduled for three days starting 15 October 2003. Prior to the start of the hearing, each side had to select witnesses and submit “witness statements” from each of them.
Judge Michael Higgins, a Deputy President of VCAT and a County Court judge, heard the complaint.
At the start of the hearing the Uniting Church applied to intervene on behalf of the Muslims and the Catholic interfaith group applied to intervene in the interests of “religious harmony”. The Judge refused both of these applications, as well as one from the Board of Imams. The Judge also ruled that the complaint could be expanded to include the whole of the seminar.
The hearing went for more than 30 days. There was a break during November and over Christmas. After resuming on Thursday 12 February 2004 the hearing continued until 5 March 2004 with the final re-examination of Pastor Nalliah held on 18 March 2004.
Four weeks were allowed for checking the thousands of pages of the transcript of the hearing and then four weeks for each side to make “submissions” to the judge, stating their case and giving reasons why the judge should listen to their arguments. Following that, each side had several weeks to analyse the submissions of the other side and made opposing comments. This took to the end of June 2004.
The judge then examined the witness statements, the transcripts of the hearing and the submissions, and applied relevant laws and precedents to come to a decision on the case.
He announced his Summary decision on the case on the last sitting day for the year, 17 December 2004. He found that the two pastors had breached the Racial and Religious Tolerance Act and had vilified Muslims.
The judge’s full decision was posted on the Internet on Thursday 23 December 2004, just two days before Christmas. (A number of people have analysed the judge’s decision and shown that it contains numerous factual errors, but that is another matter.)
A brief meeting at the end of January set the date for the penalty hearing—2 May 2005. On this day the judge will hear verbal arguments from the Islamic Council as to what penalty they would like imposed. CTFM will then respond.
Prior to that, the ICV has been asked to provide a written statement detailing their requests by 11 April 2005, and then Catch the Fire Ministries and the pastors have to respond in writing by 25 April 2005.
At the preliminary hearing on 28 January, the ICV barrister revealed the basis of what they could ask for: an apology; an order regarding restrictions on future conduct (possibly speaking and writing) and an order that the court files be closed or suppressed.
Judge Higgins will then consider all of that evidence before handing down the penalty at a later date.
The only grounds for an appeal to the Supreme Court against the decision is on errors in law. A separate appeal on procedural matters can also be made. CTFM is currently considering their options.
This case has taken an enormous amount of time and effort, as well as money. The pastors have been represented by a barrister and a legal firm (although one can speak for oneself in these tribunals).
For more details and articles on this case, see Salt Shakers website at http://www.saltshakers.org.au/html/P/265/
Jenny Stokes is Research Director of Salt Shakers.