The Pointy End of Freedom of Speech (Aust)

Late last year two pastors from a Victorian charismatic pentecostal church, Catch the Fire Ministries, were found to have contravened Victoria's Racial and Religious Tolerance Act 2001. I've been meaning to write on the case, Islamic Council of Victoria v Catch the Fire Ministries Inc., for quite a while now but I've been waiting until I could bring myself to wade through the 110-page VCAT judgement of Higgins J. I don't know if you've ever read a VCAT judgement, but if this one is anything to go by, it's a truly painful experience. It was appallingly formatted (ie it never used quote marks when someone was being quoted), there were spelling errors all through it and about 90% of it was repetitive descriptions of the evidence which was presented by witnesses and in cross examination. Ugh. Anyway, I now have a reasonable idea of why the two pastors were found to have breached the Act, something I never really got from the extensive media coverage. I'll start by extracting the relevant parts of the Act:

(8) A person must not, on the grounds of religious belief or activity of another person or class of persons engage in conduct that incites hatred against, serious contempt for, or revulsion or severe ridicule of, that other person or class of persons.
(11) A person does not contravene section [] 8 if the person establishes that the person’s conduct was engaged in reasonably and in good faith -

(a) In the performance exhibition or distribution of an artistic work; or
(b) In the course of any statement, publication, discussion or debate made or held, or any other conduct engaged in, for -

(i) any genuine academic, artistic, religious or scientific purpose; or
(ii) any purpose that is in the public interest; or
(c) In making or publishing a fair and accurate report of any event or matter of public interest.

The complaint centered around a seven-hour conference on 'understanding Islam' and two articles printed on the church's web site. I won't bother distinguishing between the various sources, I'll just present the contravening conduct as a whole. The respondents claimed that most Australian Muslims were actively engaged in a process of 'silent Jihad', and those which weren't would be compelled to in the future otherwise they would be false Muslims. Silent Jihad was presented by the respondents as encompassing a number of steps, all of which are mandated by the Qu'ran:

• Deception of the majority non-Muslim population as to the peaceful nature of Islam. This deception would only be revealed when the Muslim population gained sufficient strength.


• Bribing people with up to $10,000 to convert.


• Aiming to obtain Muslim numerical majority in Australia at which stage the non-Muslim minority would be forced to convert or leave the country.


• This numerical majority was being achieved through the high birthing practices of Muslims, with respect to non-Muslim Australians, and through immigration. The latter situation was accelerated through the current Islamic 'control' over the immigration department and ‘infiltration’ of parliament.


• At this stage those that would not convert would have to pay a punitive 'poll tax' (jizya) or have their head cut off.


• Muslims were to be encouraged to participate in this by the promise of looting the material possessions of non-believers, as well as threats of divine damnation.

This was described as the 'plan of the enemy to take the land' and the position of Australian Muslims with no supporting evidence beyond assertions that un-named Islamic leaders had agreed with them and what were found or admitted to be mis-used or falsified statistics. Additionally, the respondents stated that all Muslims must, by definition, be terrorists and any statement that terrorists were 'rogue' elements was a lie. The evidence presented to the tribunal did not establish the factual basis of any of these claims in an Australian context. The interpretation of the Qur'an which was presented was found to be deliberately unreasonable, extreme, out-of-context and divorced from the actual practice of Australian Muslims in order to incite revulsion and hatred.

The stylistic tone of the seminar was found to be combative and designed to inspire hatred, contempt and ridicule. Out-of-context statements relating to the Qur'anic teaching on the status of women, criminal punishment and the sexual behaviour of Muhammad were used to add to this atmosphere. The primary speaker, Daniel Scot, was described charismatic in style and was repeatedly able to draw shocked gasps and ridiculing laughter from the audience. Combined, this conduct was found to have contravened s. 8.

The respondents were held not be allowed to rely on the defence in s. 11 as they had not acted 'reasonably or in good faith'. Factors which established their bad faith (subjectively and objectively) were:

• Their agreement with a statement put to them that most Australian 'Muslims were peaceful, decent God-fearing, honest citizens', in contrast to the views expressed at the conference


• The presentation of 'silent Jihad' with little relevant evidence and without distinguishing between different groups of Muslims


• The use of the unusual ‘Pickthall’ translation of the Qur’an where it had stronger language


• The exaggerated paraphrasing of certain passages of the Qur'an where it was claimed they were being directly quoted


• Scot’s use of the name 'Son of Ahmed Siddiqui' (his birth name) in literature distributed at the conference to give the impression it was written by an independent Muslim when he hadn't gone by that since 1971


• The mis-attributing of statistics to the Australian Bureau of Statistics and the incorrect mathematics used to describe Muslim growth rates


• Out-of-context quoting of the Qur’an, such as reading vs 38, 40 and 41 of one passage while leaving out vs 39 which would have made the passage seem less extreme


• Citing a figure on the number of verses in the Qur'an which spoke of Jihad which was highly misleading (the figure included, for example, verses on the punishment for murder)


• An admission that he should not have asserted that Muslims 'control' the immigration department, he claimed he should have used the word 'influence'


• Misleading and evasive testimony at trial

It is patently obvious that the pastors were not found to have breached the Act for simply quoting the Qu'ran, as they claimed in their media statements. Their conduct was truly, outstandingly outrageous. It should also be noted that, contrary to some media reports, neither Scot or Nalliah were Muslim converts – they had merely grown up in Islamic countries. Anyone who defends the substance of what was said and presented by those pastors and their church in my book is either ignorant of what they said or complicit in the spreading of grossly distortionary, inflammatory, unfair and untrue information which was calculated to incite fear, hatred, contempt, revulsion and ridicule.

Having said that, there remains the thorny question of whether it is a good thing to make this sort of conduct illegal. I'm a big fan of freedom of speech, even freedom of outrageous and unreasonable speech, 'I'll disagree with what you say but not your right to say it' and all that. It's a fundamental principle of a liberal democracy and should only have a bare minimum of restrictions. Obviously there are legitimate restrictions, principally for defamation and 'hate speech'.

These laws go far beyond traditional concepts of hate speech. For one, they prohibit the inspiring of such non-hating emotions such as "serious contempt, revulsion or severe ridicule" which is on the face of it unconscionably broad. This is a very wide range of emotions which aren't allowed to be stirred up, and unless they are inspired both reasonably and in good faith, none of the exceptions in s. 11 can be relied upon. Thus a comic making an unreasonable joke which inspires severe ridicule about any religion or a human rights activist making exaggerated (ie unreasonable) but in-substance true statements which inspire revulsion are both in danger of breaching the act.

Hate speech laws traditionally encompass an element of inspiring an audience to violence, and can be justified on a simple harm principle basis. These laws go much further. There might be a short gap between "hate" and "incite to violence", and I think there's a particularly short gap between Catch the Fire's conduct and "inciting to violence", but I think the Act falls outside the traditional range of hate speech laws and goes simply too far.

Some have pointed out, as Higgins J did, that the Racial and Religious Tolerance Act applies the concepts of defamation to races and religions. I must confess a wholesale ignorance of the substance of defamation laws, but I do have problems with the concept being applied to religions. I can see how defamation laws as applied to the press can discourage socially undesirable (untrue, malicious, slanderous) statements which do nothing but damage the reputation of a public figure and/or cause another party economic loss. I think such laws are likely to be effective in deterring such speech as media outlets don't usually have a major vested personal interest in continuing to make such statements under the threat of large monetary fines.

When you enter the field of religion, though, things are much different. I'm not sure about Islam (though I believe it is the case based on some of the passages identified in this case), but Christianity certainly contains injunctions to obey heavenly authory over secular laws in matters of personal conscience, under some interpretations anyway - "we must obey God rathar than men". In practice, this means that laws such as this are unlikely to eliminate the real harm done by this sort of hate speech, but will often inflame the situation. The sorts of people likely to get in trouble with the law are religious extremists such as Daniel Scot who will actually go to jail rather than pay the fairly small cost of the public apology which was ordered by Higgins J. In fact, they would relish the opportunity to go to jail for "quoting the Qur'an" as this confirms their "Sharia law by stealth" hyperbole, creates a palpable sense of martyrdom and fires up their religious base.

In fact not only will this law fail to stop the harmful speech, it has and will continue to propagate it vastly beyond the 200 person-audience at the original conference. There has been about 140 posts on the story at one of the highest traffic blogs (and sites) around, the hate and war-mongering Little Green Footballs and the media exposure even in mainstream outlets inevitably paints a biased story of what happened. Daniel Scot (who has been more public than Nalliah) comes across on TV as a softly spoken, reasonable kind of guy who has created the impression that what he said amounted to little more than quoting the Qur'an and asserting his Christian beliefs. And, of course, Andrew Bolt with his unfortunately large populist audience, characterises the conduct as laughingly banal. Just about everyone who reads what actually was presented at the seminar would agree that it's outrageous, but it's perceptions that matter here and those being "silenced" and "having their freedom of speech squashed" are going to win the image war.

If these laws are indeed applications of defamation principles to religion, they are still a bad idea. The conduct they seek to prevent may be truly outrageous, but the conduct itself will not be stopped by the laws and the contraveners will get far more exposure for their noxious ideas than they otherwise would have and will use the "punishment" of the law as ammunition to rile up even more extremist sentiment in the community. They are bad public policy.

But what should we do about this sort of thing? I understand (at an intellectual level, I obviously don't have personal experience) the pain of a minority group whose views are being represented in an unfair and potentially dangerous way by the majority. If I were a Christian or Jew in a Muslim country I would be rightly dismayed if an Imam were spreading the Blood Libel, the Protocols of Zion or a literalist, violent, interpretation of the Old Testament (an interpretation which is surely open, if not the practice of the vast majority of Christians) - especially if such tales were used to inspire fear and hatred in the community.

But I think that ultimately the answer to bad speech is more speech. But unlike the traditional formulation of this argument (which is a "get the government out" point), why shouldn't the government be actively involved in facilitating this speech? Why not have entirely toothless vilification laws which would enable tribunals to be set up to hear complaints about this sort of conduct before a neutral fact-finder? Hopefully the results of this process would get a decent amount of media exposure and it could be used as a way of spreading the truth in the face of outrageous slander. The key is to not attach penalties to it, because this neutralises the "sharia law by stealth" argument, neutralises the need for parties to engage costly legal counsel (I'd ban representation and take other cost-cutting measures) and reduces the hysterical elements associated with the current law. Further, I'd give the tribunal a greater strike-out power than is currently available due to the fact that my proposed law would be more an informal process to publicise information of public relevance than a court process. This would stop the current abuses of the law - something I'm actually on the same page as Bolt on.

A minority religion which has been vilified in this way should have recourse to a public remedy. However this remedy should not focus on the extremist who has spread the beliefs (the person least likely to be affected by the law), it should be focussed on the community at large to neutralise the real harm from such speech. I would hope that a proposal such as this would be able to go some way to meeting this aim.