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17th October 2003
State hate laws in limbo
By Barney Zwartz
Religious Affairs Writer
October 17, 2003
source: http://www.theage.com.au/articles/2003/10/16/1065917549861.html

Victoria's hate laws were thrown into question yesterday when a judge said they might be in conflict with the Australian constitution.

Judge Michael Higgins, who is hearing the first case under the new racial and religious vilification law in the Victorian Civil and Administrative Tribunal, said he might have to refer it to the Supreme Court to determine whether it was valid.

He is concerned that the Racial and Religious Tolerance Act, introduced amid controversy by the Bracks Government two years ago, might be in conflict with High Court constitutional rulings. He was also concerned that federal issues raised by the defence might be outside his jurisdiction.

The Islamic Council of Victoria has complained that a seminar last year by conservative Christian group Catch the Fire incited scorn, fear and hatred of Muslims.

The judge also deferred until next week a ruling on a defence application to dismiss the case, which also names pastor Danny Nalliah and speaker Daniel Scot.

Barrister David Perkins, for Catch the Fire, said the group's activity was exempt under the legislation. In any case, the act dealt with inciting hatred, contempt and revulsion, whereas Catch the Fire exhorted Christians to love Muslims and pray for them.

Mr Perkins said the Victorian law restricted rights to freedom of communication, including speech, implied under the constitution.

The constitution does not explicitly guarantee freedom of speech, but in two recent cases - involving former New Zealand prime minister David Lange and animal rights activist Laurie Levy - the High Court has ruled on rights to political free speech.

On Wednesday, Judge Higgins declined a request from Mr Perkins to rule the act invalid on constitutional grounds, while acknowledging that he had a problem. The question arose again yesterday, first through Mr Perkins, then through Islamic Council barrister Brind Woinarski, QC. Mr Woinarski argued that the Lange and Levy cases were irrelevant because they dealt only with political free speech. "We don't believe the word religion is mentioned once," he said. "In neither Lange nor Levy does the High Court deal with that question."

Judge Higgins: "Is it implied the High Court would? If so, would it conflict with the Racial and Religious Tolerance Act?"

The judge suggested that the cases brought incremental developments in law, which showed there was an issue as to how far the High Court would go. There could be conflict with the Victorian legislation.

Mr Woinarski argued there was no ruling explicitly protecting religious speech. "The best that may be said is that the interpretations of the High Court are in the process of developing, and some process in relation to religious expression may be the next step."

Judge Higgins replied that there could be a tension between that possibility and the Victorian law. He has an open mind, he said, but it was an issue on which he had to make a decision.

Earlier, Mr Perkins argued that the judge could not rule on key aspects of the defence that relied on constitutional implications. Seeking to have the case transferred to the Supreme Court, he said Parliament had given jurisdiction to a tribunal that did not have federal jurisdiction. "That places the tribunal in an invidious position. You can't give us justice. You don't have the power to."

Lawyer Peter Bartlett, of Minter Ellison, told The Age that to strike down the legislation based on the Lange decision would be a significant extension of the High Court ruling. But if that happened, it would "throw into turmoil" the future of the legislation.

A spokesman for the Premier declined to comment as the matter was still before the courts.