In what may be the first such case anywhere, Judge Michael Higgins at the Victorian Civil and Administrative Appeals Tribunal (VCAT), found that an evangelical Christian church had vilified Muslims. The case was brought by the Islamic Council of Victoria against the Catch the Fire Ministries Inc. It pertained to a seminar, a newsletter and website article which were said to have mocked the religion of Islam. Released in December 2004, the finding of religious vilification is a flawed judgement and gives cause for serious concern. The decision appears to put significant limitations on what may be said or published in terms of religious commentary. Further, considering the range of opinions regarding religion that may be readily be found on the Internet, many of which may now similarly be considered in breach of the law, VCAT may have a busy time ahead. Some of these difficulties may be identified as arising from the legislation, but most may perhaps be attributed to the judgement itself.

The case is the first to arise under the legislation. In a summary of reasons for his decision, Judge Higgins said that the seminar was not conducted in the context of a serious discussion of Muslims' religious beliefs, and was presented in a way which was essentially hostile, demeaning and derogatory of all Muslim people. During the seminar, according to the judgement, it was claimed that the Quran promoted violence, killing and looting, that Muslims were liars and demons, and that Muslims had a plan to overrun western democracy, including in Australia, by violence and terror.

The legislation

The Racial and Religious Tolerance Act 2001 (Vic.) prohibits statements regarding religion that may incite hatred, serious contempt or severe ridicule but exceptions are allowed for artistic works, for academic, religious or scientific purposes, or in the public interest, but only provided such purposes are conducted "reasonably and in good faith". The judge found that the statements did vilify Muslims and that the conduct was not reasonable or in good faith. Because of this prior finding, the judge held that whether the conduct was for a genuine religious purpose or was in the public interest could not be considered. The defendants, according to the judgement, tended to rely unduly on Biblical quotations for their defence. They were also considered by the judge to have given cause to be regarded as unreliable witnesses, which may have been the main reason he found against them. Consideration of the wider implications however shows that it would have been prudent for Judge Higgins to have adopted a far more cautious interpretation of the legislation.

The judgement, as may be expected, has been variously condemned as an infringement of free speech and lauded as a blow for social harmony. From a rational viewpoint, the judgement, if not the legislation, does seem highly flawed. All states in Australia have anti-discrimination and racial vilification legislation, as well as laws against incitement to violence, defamation, slander and libel. Only Queensland, Victoria and Tasmania have legislation that specifically prohibits religious vilification. South Australia and Western Australia have recently dropped plans for it although Federal Labor has planned to introduce it. Britain has recently proposed legislation similar to that in Victoria, but this adopts a narrower approach, excluding ridicule from the definition of vilification. Given this judgement, such limitations may be wise. There is considerable doubt as to whether such laws are necessary, however it is perhaps conceivable that certain abusive situations may arise that other legislation may not cover. It seems unlikely that the intention of the legislation was to limit religious discourse in the way that it seems to have done.

A major problem with the whole concept of such legislation lies in the desire to place religious vilification in an equivalent position to racial vilification. The difficulty with this is that unlike race, religion is a not an inherent biological characteristic. Religious views, like political views, are acquired and may be changed. The fact that they are culturally specific should not perhaps be seen as a legitimate reason to limit robust religious discussion any more than political discussion. If the aim or the effect of the legislation is to preserve religious beliefs from threat of contradiction, then this is certainly not in the public interest. Those religious groups that prefer that their doctrines not be subject to robust scrutiny may of course favour the establishment of such a privileged and protected status.

The judgement

The most intractable problem in forming judgements based on the legislation is how to deal with religious statements in a rational legal context. Many of the statements made by the defendants in the case were extravagant, exaggerated, and some were not based in fact. In a religious context, this would not perhaps be considered unusual. Rather, it could be said that all religions rely on the ability to make assertions of this nature.  In a seminar designed to teach Christians how to proselytise Muslims, it could hardly be otherwise. Yet the judge found this behaviour to be unreasonable. He concluded that it was "not a balanced discussion" and "one-sided". Yet it could be said that all religions necessarily propound their doctrines in this way. Further, in determining what was reasonable in terms of discussion, he referred to a dictionary definition of "reasonable" that included the word "rational". Yet religion, by its nature, relies on faith to sustain belief rather than rationality. In referring to prior decisions, he cited a judgement in a case of racial vilification, as if all the arguments could similarly apply. This cannot be so.

Inherent in racism is the belief and assertion that one race is superior to others. Such assertions are unwarranted, undesirable and may involve unlawful vilification. Inherent in religionism is the belief and assertion that one religion is superior to others. Such assertions, however unwarranted and undesirable, are an essential characteristic of religious belief. If a religion were not held to be superior then why would it be believed? Hence the legal considerations regarding racial and religious vilification cannot be the same. It would seem that the judge failed to take account of the particular nature of religion in forming his views. Had he done so, he would have found that according to religious norms, the defendants were indeed acting "reasonably and in good faith". Then, the complaint should have been dismissed on the grounds that the defendants were indeed pursuing a religious purpose, however fervently and irrationally. More importantly, the complaint should have been dismissed in the wider public interest.

Apart from these general considerations, in court hearings spread over more than a year, legal arguments relating to religious doctrines were presented, the theological nature of which may not have previously been heard in a court of law. There was much discussion in the case about whether the Quran advocates or promotes violence, as the defendants had alleged. Testimony for the complainants said that only extremists would be motivated in such a way, and to suggest that this extremism could affect all Muslims was an unlawful smear. The Judge upheld this view. This is a highly significant aspect of the decision and one in which, rather than dismissing the complaint on the grounds of public interest, the judgement has itself infringed it.

Islam and violence

Do the problems of Islamic terrorism arise primarily from Islamic extremists or because of the extremism of Islam? On this issue, the judgement quotes Pastor Daniel Scot, one of the defendants, as saying that "it cannot be regarded as controversial that there are passages in the Quran, Hadith and Suras, which could and do incite believers in Islam to violence and hatred of non-Muslims." It would be reasonable to say that this is a view that is indeed commonly shared by independent observers. For example, an article in the Australian Humanist (Summer 2003) refers to publications of ex-Muslims as having a general message "that 'fundamentalist' Islam is Islam, and that it is inherently hostile to democratic values, multiculturalism and world peace". Such views may be said to arise from passages in the Quran such as "Believers, make war on infidels that dwell around you" (9:5), or "Strike terror into the enemy" (8:6), or many other similar references. They also arise due to a belief that "God's law" has priority over any man-made law.

It is beyond doubt that Islamic terrorists seek justification for their actions from religious texts. Numerous quotes from Islamic leaders and websites to this effect could be cited. Its is also evident that the vast majority of Muslims are not so extremely motivated, a fact that was not contested by the defendants at the Tribunal. However surveys of worldwide Muslim opinion showing a high degree of support and respect for Osama bin Laden may perhaps be used as evidence to support the view that a certain degree of such sentiment does prevail. It is implausible of course that any witness defending Islam in a court would admit to any such motivation.

The complainants took particular exception to the implication by the defendants that any characterisation of Muslims in general should be applied specifically to Australian Muslims. They referred to text in the defendants newsletter that raised the prospect that Christians in Australia could be "raped, tortured and killed" by Muslims. It is certainly an unpleasant allegation, but is the public interest best served by airing or suppressing discussion of the nature of possible religious violence? Such violence has a long history, and unfortunately, its prevalence is increasing. Some may perhaps wish to cite religiously motivated occupations in Palestine, spurring militant Islamism and terrorism, leading to what may now be plausibly interpreted as a neo-imperialist Crusade, as evidence of an increased descent into the madness of religious conflict. Regrettably, if such world events should significantly deteriorate, it would unfortunately not be unlikely that some trouble may spill over into Australia. The public interest is surely best served by increasing awareness of the potentially divisive, delusory and dangerous nature of religious beliefs in order to try to avert their consequences.

So how should incitement to violence inherent in religious texts be considered? Expert witnesses to the Tribunal stated that Quranic texts that appear to incite violence could not be considered in isolation from other Islamic doctrine, and that in any case only extremists would be actively influenced by such texts, so therefore to characterise all Muslims as extremists was unreasonable. The judge upheld this view of unreasonableness, and stated that the defendant's statements and publications were unbalanced and unduly negative about Islam and therefore disallowed their consideration as exceptions under the Act because they were not presented in "good faith".

The difficulty in forming a judicial opinion on religion in this way is that the "expert witnesses" were not expert in the normal sense of providing guidance about interpretation of facts. The witnesses were merely theologians who could do little more than express their beliefs about the beliefs of others. This approach to the case was adopted because according to Judge Higgins, "the core issue is not that of the authenticity of the original sources", but their fair interpretation. This is rather extraordinary, to say the least, because it is the primary sources that define the beliefs. Even more extraordinary is that the defendants, who both have lived in Muslim countries and have knowledge and experience of Islam, were asked not to quote from the Quran because this may vilify Muslims. This failure to consider certain specific and relevant details of the content of the Quran was a serious error.

The fact that learned witnesses may be able to provide alternative more peaceful citations does not necessarily mitigate the possibility of incitement by the violent references, because for Muslims, all texts in the Quran cannot be contradicted and must be obeyed. Therefore, for all believers, such texts must be regarded as having some weight. Reference to violent exhortations in discussion of Islam, while possibly distasteful, even vilifying, should certainly not be regarded as being unreasonable or unlawful, as the judgement concluded. It should have allowed as legitimately falling under the allowable exceptions as defined in the Act, being both in the public interest and as being part of a genuine religious objective. If a correct legal interpretation of the Act does not allow this, then the Act should be amended. It is quite an absurdity that any vilification of non-Muslims that may be inherent in Islam and in the Quran should be prohibited from discussion, even in an irrational religious context, on the grounds that it may vilify Muslims.

For most religions, proselytisation is regarded as a legitimate religious purpose, and religious freedom would presume it to be so. This cannot conceivably be done without at least some imputation that if one religion is "true" then others must be "false". Religions commonly describe unbelievers as being influenced by demons or devils. Yet Judge Higgins seemed to regard any purely negative comment about other religions as unbalanced and undesirable. Religions also commonly use the technique of selective quotation to promote themselves, so it is seemingly absurd to suppose that that the same technique could not be used in a negative sense. Yet he cited this as a reason that the defendants' statements were not made "reasonably and in good faith" and therefore allowable. Seeking to promote a faith, even at the expense of another, but using standard religious practices, should not have been considered as unreasonable.

The unfavourable view that the judge formed of the defendants appeared to be more related to the seminar than the newsletter or the website. Listening to the tapes of the seminar, he took exception to the verbal mode of presentation. He was also concerned that some of the statements regarding Islamic beliefs in the seminar gave rise to amusement. Whether any particular beliefs may be legitimately be held up to ridicule cannot sensibly be determined without at least some tacit consideration as to whether the beliefs, however genuinely held, when viewed rationally, are legitimately ridiculous. Were it not received doctrine, a new religion that sought to establish itself on the basis of claimed angelic visitations or resurrected corpses might quite reasonably perhaps be expected to be subject to ridicule. However any new or existing religion, no matter how implausible its doctrines may seem, is now seemingly protected from such scrutiny. It is hard to see how the public interest is served by this.

The aspects of the seminar that the judge considered to contain ridicule, and the fact that one of the defendants may not have had the prior publications to the extent he had claimed, appears to have helped persuade him to reach his "not in good faith" conclusion. Whether or not this conclusion was technically justified in a legal sense, it is difficult to imagine how the finding could extend to the newsletter, and particularly to the website article, which was not written by the defendants. A search of the Internet would reveal literally countless articles of a similar nature to the one cited, from various religious viewpoints. It is nonsensical that the particular article cited was declared unlawful. How the judge could have arrived at this apparently confused decision may be illustrated by his assertion that one billion adherents of Islam "regard the Quran as equivalent to the Bible; that it agrees substantially with Christian beliefs save for particular events". Such a fanciful conclusion displays a similar degree of willed belief that religion itself requires. It is possible that the judge formed this quixotic vision of religion because no evidence was heard that presented a rational non-religious viewpoint.

A rationalist view

Naturally the defendants would have no desire to use rationalist arguments, lest they equally be applied to their own beliefs. However, in presiding, the Tribunal should have taken account of, or should have been able to take account of such considerations in the public interest. This apparent flaw in the judgement was seemingly derived from Mr. Higgins' presumption that the core issue of the authenticity of original religious sources is irrelevant. This seemingly extraordinary view may perhaps have been due to a personal reluctance by Mr Higgins to challenge any beliefs that he himself may have. However the issue of authenticity cannot be considered irrelevant, because this is an essential feature claimed by all religions.

Almost all religions suppose, as a part of their cultural mythology, that their own scriptures are authentic. All such claims to "truth" must of course be mutually exclusive. However an apparent aspect of the promotion of religious tolerance, and one possibly inherent in the legislation as well as the judgement, is the implied supposition that all religions may or could be true. While this may be a common pretence, in accordance with social norms, it is an absurd proposition. A great service could have been provided if, in accordance with normal and valid scientific epistemology, and by the standards of evidence normally required in legal proceedings, a judgement had been made such that no religion may be regarded in a legal sense as being "true". Such a statement, while profound, is entirely warranted.  It would have been a great public service if it had been made. Thus a great opportunity was missed to help to establish a proper base for religious impartiality and thereby to diminish the intensity of religious division and discord. Instead, the judgement is likely to increase it.

The fact that religious allegiances stir strong emotions and that their ideologies may be inherently divisive may of course motivate legislation that endeavours to promote religious tolerance. This should not however lead to the anomalous situation where in order to promote peace and harmony, religious doctrines that promote the opposite cannot be openly discussed. The Bible also contains injunctions that infidels should be killed (Deuteronomy 13:6-11), as well as extraordinarily vengeful images such as the gleeful slaughter of the children of Babylon (Psalm 137). However it would be reasonable to state that in terms of its negative attitude to unbelievers, the Quran has a proportionally more severe content than the texts of other religions. It would also be reasonable to say that the degree of authenticity that Islam ascribes to its sacred text is higher than other religions. Given current world events, the apparent effect of religious exhortations to violence may lead a brave rationalist to a claim that "all religion is a pathological delusion that is leading the world to destruction".

Such an assertion may be deemed to incite "serious contempt" of several major religions and hence vilify believers in them.  Were a complaint to be made, the onus would be on the defendant, with the incumbent legal costs, to show that the claim was made reasonably and in good faith, and that it was legally justifiable. In this case, pursuit of a genuine religious purpose would obviously not be an allowable justification. Presumably however, trying to save the world from destruction by religious maniacs could be considered to be in the public interest. In the light of Mr Higgins judgement however, it would seem that those inclined to make such claims might be far more wary. Thus the public interest has not been served due to the intimidation resulting from his judgement.

While the motivations behind the legislation and its interpretation may have been well intentioned, the result is flawed. The main problem stems from the fact that in the legislation, the public interest is a secondary consideration. Undue emphasis is placed on the prior consideration of what is reasonable and in good faith, which in a religious context is an intractable issue. The public interest should be the primary consideration, and it is not served by imposing arbitrary constraints on the discussion of religion. Generally, rather than seeking to impose tolerance artificially, the public interest will be better served by assisting people to make the distinction between knowledge, belief and cultural mythology. It is only by properly airing the problems and disadvantages caused by religious belief that believers may become aware that there are alternatives, including the rejection of faith-based doctrines. Ultimately, this may be the only way that the threat of religious tensions will be defused. It is only by such discussions that the move will be assisted to a more universal conception of values, based on principles of compassion, honesty, freedom and justice, that all may equally endorse.