In Freedom of Speech

On 14 December 2006 three Victorian Supreme Court judges – Nettle, Ashley and Neave – handed down their decision to uphold the appeal by pastors Daniel Scot and Danny Nalliah against their conviction for religious vilification. We are praising the Lord!

In my view, Justice Nettle’s judgement is a damning indictment of Judge Higgins’ original decision to convict the pastors in December 2004. Justice Nettle lists about 20 separate instances where Judge Higgins of the Victorian Civil and Administrative Tribunal (VCAT) misrepresented what Daniel Scot had said in his seminar on Islam in March 2002 (eg Higgins wrongly claimed that Scot had said “Muslims are demons”).

Justice Nettle also points out that Judge Higgins in effect failed to recognise the difference between hatred of the sin and hatred of the sinner, and did not acknowledge that it is possible to criticise certain beliefs without inciting hatred against those who hold those beliefs.

Justice Nettle says Judge Higgins’ views on the accuracy or inaccuracy of Pastor Scot’s views on Islam and the Quran were not relevant to the case, noting: “In my view it was calculated to lead to error for a secular tribunal [like VCAT] to attempt to assess the theological propriety of what was asserted at the Seminar.”

Justice Nettle also notes that Judge Higgins paid insufficient attention to Daniel Scot’s emphasis on the need for his audience to love Muslims, to show sensitivity for Muslim culture and respect for the Quran and Mohammed.

Justice Nettle says at one point: “I have listened to the tape recording of the Seminar… Unlike [Judge Higgins], however, I was unable to perceive from the tape anything in the manner of Pastor Scot’s delivery which rendered his statements more likely to incite the audience to hatred and other relevant emotion of or towards Muslims. To the contrary, as it seemed to me, what one hears is a speaker who, although endowed with an admirable command of the English language, speaks it as a second language with all the difficulties which that sometimes entails. I hear a degree of nervousness in delivery, a pattern of speech which is idiomatically incongruous and consequent double entendre which the speaker sounds not to have intended. Admittedly, his style is given to ridicule in places, and the ridicule results in cynical laughter at places. But on any analysis his plea to love Muslims and to “minister” to them comes across as sincere enough as do the sounds of his audience’s reaction to it.”

While Judge Higgins paid great attention to the hurt feelings of the three Muslims who attended the seminar, Justice Nettle says that “the affront to the feelings of the Muslim witnesses was largely if not wholly irrelevant. The concentration needed to be on the members of the audience who were not Muslims. What demanded to be assessed was whether the effect of the injunctions to love and to witness to Muslims was sufficient to prevent hatred and other relevant emotion by the non-Muslims towards Muslims.

“In fact, the Seminar was replete with statements by Pastor Scot, to which neither Mr Thomas [a Muslim complainant] nor [Judge Higgins] made any reference, favourable to Muslims and ex facie calculated to persuade an audience of non-Muslims to love and ‘witness’ to Muslims (despite Pastor Scot’s perception of the shortcomings of Islam).” Justice Nettle goes on to quote substantial parts of the seminar where Pastor Scot speaks of Muslims and their culture in positive terms.

Justices Neave and Ashley have written briefer judgements than Justice Nettle, and while supporting his main conclusion, do not agree with him on all points. Judge Ashley was particularly critical of the conduct of the pastors’ VCAT defence, which in his view took up too much time in irrelevant theological debate. In my view, Judge Higgins was more to blame for allowing such debate and presuming, with no theological training, to decide who was right and wrong.

The orders (penalties) handed down in 2005 by Judge Higgins have been set aside – and we praise God that the two pastors are once again free to preach and teach about Islam and hold seminars like the one Pastor Scot conducted in a Melbourne church in March 2002.

Yet the case is far from over. It has been sent back to VCAT – an action which could be perceived as passing the buck on this politically highly sensitive issue. The Islamic Council of Victoria (ICV) has been ordered to pay half the costs of the Supreme Court appeal. A VCAT judge (not Higgins) will reconsider the evidence already given and make another decision next year – guided by comments of the three Supreme Court justices.

The two Daniels have welcomed the Victorian Supreme Court decision and have again called for the repeal of the Victorian Racial and Religious Tolerance Act – which has demonstrably created more, not less, intolerance and disharmony in Victoria’s religious community as a result of cases like theirs. Other cases such as the complaint of a convicted paedophile witch against a Salvation Army officer conducting a prison Alpha Bible course show that vilification laws like these can be and are used to harass groups with differing beliefs.

The entire 51 page judgement can be seen at:
Roslyn Phillips is the Research Officer for Festival of Light Australia. Website
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