Racial and Religious Tolerance Act 2001
The Racial and Religious Tolerance Act 2001 was implemented by the Steve Bracks' Labor government in the state of Victoria, Australia. It was effective from 1 January 2002. It has been criticised as an assault on free speech.
The explicit purposes of the Act are:
- To promote racial and religious tolerance by prohibiting certain conduct involving the vilification of persons on the ground of race or religious belief or activity;
- To provide a means of redress for the victims of racial or religious vilification;
- To make consequential amendments to the Equal Opportunity Act 1995.
The expressed objects of the Act are:
- To promote the full and equal participation of every person in a society that values freedom of expression and is an open and multicultural democracy;
- To maintain the right of all Victorians to engage in robust discussion of any matter of public interest or to engage in, or comment on, any form of artistic expression, discussion of religious issues or academic debate where such discussion, expression, debate or comment does not vilify or marginalise any person or class of persons;
- To promote conciliation and resolve tensions between persons who (as a result of their ignorance of the attributes of others and the effect that their conduct may have on others) vilify others on the ground of race or religious belief or activity and those who are vilified.
The first case
The first ruling on the laws went to the Islamic Council of Victoria against Catch the Fire Ministries on 17 December 2004.
On 9 March 2002, Daniel Scot spoke at a seminar concerning Islam, sponsored by Catch the Fire Ministries, an organization led by Danny Nalliah. The seminar was attended by three Australian Muslims, who along with the Islamic Council of Victoria, launched action under the Act, claiming that the intent of the speech had been to vilify Muslims, rather than to discuss Islam itself. They also complained about written materials which had been distributed by Danny Nalliah. After being considered by the Equal Opportunity Commission, the case was heard by the Victorian Civil and Administrative Tribunal, and became the first real test case under the Act.
In the landmark ruling on 17 December 2004, the Tribunal ruled that Nalliah, Scot and Catch the Fire Ministries had breached the new law. Writing in The Age newspaper, David Palmer claimed that the finding by Vice President Michael Higgins meant that "truth is no longer an acceptable defence". The Vice President heard further submissions regarding 'remedies' early in 2005. On 22 June 2005, Vice President Higgins delivered his final verdict on the religious vilification issue regarding "remedies". He found that financial compensation would be inappropriate, but ordered Nalliah and Scot to take out newspaper advertisements to the value of $68,690 which summarised the findings in the case. Nalliah once again slammed the ruling, comparing the legislation to "sharia law by stealth". He vowed that he would rather go to jail than comply with the ruling. He publicly declared his intention to continue fighting the case, potentially as far as the High Court of Australia. The Age newspaper quoted him as stating "We may have lost the battle, but the war is not over. The law has to be removed, there is no question."
The case attracted widespread attention in the United States and Matt Francis, from the Australian Embassy in Washington DC claimed that the embassy was "flooded with messages from Americans concerned to learn that two Christian pastors in Australia are facing accusations of vilifying Islam". He also claimed a significant number of e-mails and phone calls were received about the case.
The Becket Fund for Religious Liberty, a non-profit interfaith public interest law firm based in Washington, intervened on Pastor Daniel Scot's behalf, and attempted to engage a dialogue with the Attorney General of Australia. The firm sent multiple letters of concern that touched on Australia's Human Rights record. Part of the first exchange stated that:
"Australia is obliged by international conventions to protect rights of conscience, freedom of expression, and equal protection under the law as Australia has ratified the Universal Declaration of Human Rights (UDHR) and its enforcement mechanism, the International Covenant on Civil and Political Rights (ICCPR). The free speech, belief, and religious exercise provisions of Articles 18, 19, and 26 in the ICCPR protect the right freely to preach about and analyze religious truth-claims of competing religions."
The US non-profit proceeded to provide funding for legal representation with local counsel, and provided legal arguments employed before the Supreme Court of Victoria.
Nalliah's lawyers had previously appealed to the Supreme Court of Victoria, in an 'Originating Motion' alleging both that Higgins showed signs of bias, that there were errors in the decision and that the Act itself was unconstitutional. Following the decision, a formal appeal was lodged with the Supreme Court - Court of Appeal - and the Originating Motion was dropped. The Appeal was heard in August 2006.
On 14 December 2006, the Supreme Court of Victoria (Court of Appeal), allowed the appeal. The court set aside the 2004 orders of the Victorian Civil and Administrative Tribunal and ordered that the matter be remitted for a second hearing. Further, they ordered that no new evidence be admitted, and that Vice President Higgins not preside over the new hearing. The Islamic Council of Victoria was ordered to pay half of Scot's and Nalliah's legal costs of the appeal.
The second case
In 2005 the second case using the act was brought to VCAT against the Salvation Army by Ararat prison inmate Robin Fletcher. Prisoner Fletcher, serving a 10-year sentence, is a Wiccan who claimed in his suit that the 'Salvos', "posed a danger to his safety", and that the Salvation Army's 'Alpha Christianity' course, offered in jails, discriminated against him on the ground of his Wiccan religion.
Justice Stuart Morris, the president of VCAT presided over the case, and summarily dismissed Fletcher's claims against the Salvation Army, Corrections Victoria and course distributors CMC Australasia as "preposterous". He added that the allegations were "nowhere near the mark" of religious vilification. In his summation he called for the Racial and Religious Tolerance Act to be amended to limit people's right to launch a lawsuit."
Islamic holy war books
In July 2005, the Australia-Israel Jewish Affairs Council threatened to take a Melbourne bookshop, run by the Islamic Information and Services Network of Australasia to court for alleged breaches of the Act and the Crimes Act.
Books promoting Islamic holy war and the killing of non-Muslims who insult Muhammad were submitted to the Victoria Police security intelligence unit by the Jewish council. The council's director of policy analysis, Ted Lapkin described the books for sale as "extreme jihadist material, explicitly calling for violence against non-Muslims".
In February 2006 Bracks launched a $260,000 media "blitz" to counter community opposition to the act. The advertising campaign was attacked by the State Opposition as a "politically motivated campaign by the Bracks Government using taxpayers' money". The Bracks Government had by the start of 2006 received more than 5000 letters concerning the laws, with the vast majority opposed. Opposition youth spokesman Nick Kotsiras said he believed the campaign was designed to counter strong community opposition to the laws and would be aimed particularly at young people, stating that "this only illustrates this Government's inability to deal with the cultural differences that exist here in Victoria."
Victorian Liberal Party position
State shadow Attorney general Andrew McIntosh announced prior to the election that the Liberal Party would repeal the religious section of the "fundamentally flawed" Act. While addressing a protest rally, organised by the Coalition for Free Speech, outside the Victorian Parliament, he said they would keep the act but fine tune it, stating that "large sections of the community advocate on behalf of the act, and large sections say it is disgraceful. We need to bring the groups together."
In January 2006, nineteen Christian leaders from Melbourne's largest churches gathered 27,000 signatures for the removal of the civil provisions of the Act. They expressed "dismay" at the premiers continued insistence of faith leaders support.
Jenny Stokes, of the Coalition for Free Speech, which organised a protest rally against the law, said she welcomed the commitment to repealing the act's religious section but wanted a commitment that the Liberals wouldn't replace it.
- "religious vilification law undermines multiculturalism" The Age 30 April 2006
- Historic win in religious hatred case The Age, 18 December 2004
- "Australian Embassy Deals With Concerns About Religious Vilification Case" CNSNews 29 October 2003
- Court of Appeal (Supreme Court of Victoria) decision Dec 2006 - overturning VCAT decision
- "Religious vilification in Victoria" ABC Radio National 27 April 2005
- "Government to Run Ads on Racial and Religious Tolerance" The Herald Sun 23 February 2006
- Row over Melbourne 'holy war' book salesThe Age 19 July 2005
- "libs coy over hatred laws" 9 August 2006
- "speaking freely is risky business" The Age 8 August 2006
- "Racial and Religious Tolerance Act 2001"
- The Becket Fund for Religious Liberty Homepage
- The Becket Fund Australia Case Page
- Catch the Fire Ministries website
- Interview with Danny Nalliah on PRODOS Worldwide podcast
- Islamic Council of Victoria v Catch the Fire Ministries Inc (Final) 2004 VCAT 2510 (22 December 2004)
- Submission from Catch The Fire Ministries To the Equal Opportunity Commission of Victoria in response to complaints made by the Islamic Council of Victoria
- Hereticpress editorial on the abolition of free speech on religion
- Garth Blake, "Promoting Religious Tolerance in a Multifaith Society: Religious Vilification Legislation in Australia and the UK." The Australian Law Journal, 81 (2007): 386-405.