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18th October 2003
Unholy free speech row catches fire
Date: October 18 2003
By Barney Zwartz
source: http://www.theage.com.au/text/articles/2003/10/17/1066364483293.htm

Daniel Scot is a Pakistani Christian. In 1987, he came to Australia to flee death threats from Muslims. A university mathematics lecturer, he says there was pressure on him to convert to Islam because it was seen as inappropriate for a Christian to be in authority over Muslim students.

When he refused to convert, he was charged under blasphemy laws, which carry a death sentence. "The next day more than 5000 students with pistols and daggers were searching for me. I was hidden in a church."

In Australia, he thought, he could tell the truth. He has run scores of seminars on Islam - and says he has received offers of bribes to stop and five more death threats in Brisbane, where he lives. "They want to hide the truth," he says.

But Scot's understanding of the truth saw him in the Victorian Civil and Administrative Tribunal this week, with conservative Christian group Catch the Fire and its pastor Danny Nalliah, in a test case for the state's religious vilification law. The Islamic Council of Victoria claims Scot vilified Muslims at a seminar in Melbourne last year.

This is a case in which important interests intersect: freedom of speech and religion versus the right not to be vilified; tensions between the world's two biggest religions; constitutional issues; even concepts about the sort of society Australia aspires to be.

Catch the Fire is a coalition of Christians from every denomination who come together to pray for Australia. Nalliah, who ministered to the underground church in Saudi Arabia for two years, says: "I'm far from what I'm described to be. I have helped Muslims settle in our country, found food, clothing and accommodation when they came out of camps. I feel sad to be accused like this because I love Muslims."

But that was not what three Muslims felt when they attended a Catch the Fire seminar last year on "holy jihad", organised by Nalliah, at which Scot was the speaker. The Islamic Council made its complaint under the vilification law on their behalf. The three said they were embarrassed and intimidated by the seminar.

The council's barrister, Brind Woinarski QC, told the tribunal that Scot claimed "in fairly simple terms, Muslims are terrorists (and) rapists".

Particular issues include Scot's interpretation of "jihad" and whether all Muslims believe what he told the seminar. He criticised the treatment of non-Muslims in Muslim countries; asserted that Muslims think it legitimate to lie; and claimed that the Koran motivates Muslims to become violent and intolerant when they are powerful.

Islamic Council president Yasser Soliman says they are not against free speech but brought the complaint out of concern at the way Australian Muslims were portrayed "as in the process of committing a crime, among other things".

Soliman believes the seminar painted "a false picture at a time when people are concerned, confused, suspicious and seeking, perhaps, to build on a background of over-reaction and backlash against innocent Muslims".

The Uniting Church has sought to make a submission to the tribunal supporting the council, arguing that otherwise Catch the Fire may put their views as representative of Christianity. The Catholic Church also wants to intervene, saying it is concerned at the implications for inter-faith dialogue and social harmony.

Catch the Fire barrister David Perkins opposed both churches, saying "officious bystanders who want to grandstand" should not be allowed to become irrelevantly entangled.

Judge Michael Higgins deferred his ruling before any evidence was heard. In fact, he has not been able to rule on very much. After two days of legal argument, the complainants have yet to make their opening statement. No evidence has been heard.

The judge adjourned on Thursday night to consider whether the Racial and Religious Tolerance Act 2001 might be in conflict with High Court constitutional rulings. If that is possible, he may refer it to the Supreme Court to determine whether the law is valid. He has also yet to rule on an application to dismiss the case.

Constitutional law expert Professor Cheryl Saunders, of Melbourne University, says Australia's doctrine of implied freedom of political communication was developed by the courts as necessary inference from the Constitution. She says courts have consistently looked to see whether new legislation burdened or impeded freedom of speech. But the implied freedom is not absolute. Someone wishing to challenge a law like Victoria's Racial and Religious Tolerance Act on constitutional grounds must show that it is an unreasonable and disproportionate limitation of the implied freedom.

Former Liberty Victoria president Robert Richter QC says that because Australia has no defined or absolute freedom-of-expression provisions, judging hate speech is always a matter of balance.

"So it is too simplistic to just make a blanket claim that something infringes freedom of speech where there are competing considerations such as the protection of minority groups against vilification and incitements to hatred."

The Islamic Council's complaint says the seminar incited scorn and hatred of Muslims, mocked what they believed and misrepresented them. Catch the Fire's defence statement argues that the seminar accurately quoted the Koran and other religious texts and that such an exposition is not capable of constituting vilification.

Perkins argued that the act was intended to deal with inciting hatred, contempt and revulsion. "It makes illegal behaviour at the extreme end of malevolence. The things Mr Scot did, such as saying Christians should love Muslims, exhorting Christians to pray for Muslims, is the absolute opposite."

The case has attracted unusual interest for a VCAT hearing. The courtroom was packed on both days, mostly with supporters of Catch the Fire, many of whom read their Bibles and prayed under their breath through proceedings.

Judge Higgins rebuked the gallery after Woinarski complained that "a variety of unpleasant comments were made very audibly in the presence of our witnesses", such as "Who do they think they are?", "They are trying to take over the country" and "We have the right to free speech".

Precisely how free, at least in Victoria, is the burden that next week will be on the shoulders of Judge Higgins.

- with Fergus Shiel

Barney Zwartz is The Age religious affairs writer. Fergus Shiel is The Age law reporter.