She then imported an objective test of whether the conduct complained of was capable of giving rise to reactions of antipathy, to be tested by the reaction of a reasonable recipient, that is, she imported a likely effect test:

It is of course, rather difficult to construct in law the reasonably prejudiced man or woman on the Clapham Omnibus, for the very nature of racial or religious prejudice is that it has no reasonable basis. However, Deputy President McKenzie thought that the law could be interpreted by reference to the likely effect of the words on a reasonable and objective person who is of average sensitivity and who is neither of the race of the vilifier or the vilified.

Deputy President McKenzie’s interpretation of the law is as sensible a gloss on the section as can probably be offered, but this level of judicial rewriting tends to be struck down by appellate courts. It remains to be seen what the fate of this creative interpretation will be once a suitable case is taken on appeal.

Islamic Council of Victoria Inc v Catch the Fire Ministries Inc

Issues of religious freedom and expression have already arisen under this legislation. In particular, the freedom of Christians to teach about Islam.

The complaint in this case arose from a seminar on Islam presented by Pastor Daniel Scot in March 2002 in Melbourne. The seminar was organised by Catch the Fire Ministries. Three converts to Islam attended parts of the seminar and then lodged a complaint, claiming that it incited hatred against Muslims in Australia. The Islamic Council of Victoria also became involved in the case. A conciliation session was held by the Equal Opportunity Commission but this was unsuccessful. The case eventually went to a hearing at the Victorian Civil and Administrative Appeals Tribunal.

According to Saltshakers, a Christian organisation following the case, the seminar presented information on Jihad and the Qur'an, compared the Bible and the Qur’an and talked about how to reach out to Muslims in love.22 The Islamic Council of Victoria obviously had a different interpretation of the seminar, and of some other material about which complaint was made. The complaint and the defence were summarised by the judge hearing the case as follows, in a judgment on a preliminary matter.23 Judge Higgins said:

“The complaint…details very serious allegations alleged to have been made by the co-respondents, these include

a) Islam and Muslims endorsed the killing and enslavement of whole groups of people based upon their religion.

b) Characterise the Prophet as a paedophile.

c) Describe the Quran as calling for atrocities on civilisation.

d) Allegations that the Muslim people have a plan for Australia to declare it an Islamic nation.

e) Various other matters which it is not necessary to detail.

By its defence the co-respondents allege:

a) That the seminar concerned religious faith and constituted a bona fide religious activity.

b) That such religious activity was not only bona fide but to the extent that it included matters of opinion they were reasonably held.

c) That there was teaching proceeding in certain Islamic training centres and that creating these centres had been known to produce terrorists and which have been linked to terrorists act

That summary explains what is contested in the case. It is not my purpose to comment on the substance of the complaint or of the defence. The hearing has now concluded. In due course, the judge will deliver his judgment on whether the Act was breached and, if so, why.

4. The collateral damage from vilification laws

Whatever the outcome of this case, the Catch the Fire Ministries illustrates the way such laws can operate in practice when they are applied through courts and tribunals and operationalised in the life of organisations, to cause collateral damage to religious freedom.

The chilling effect of litigation

The main danger of religious vilification laws is that they will have a chilling effect on legitimate religious activity even where the outcome of a complaint is to declare the religious expression to have been lawful. The punishment imposed by religious vilification laws does not lie in the penalties imposed by courts or tribunals for breaches of the law, but in the necessity to defend oneself from plausible claims that the law has been breached.

The hearings in the Catch the Fire Ministries case lasted for weeks.

The cost of defending such cases, employing an appropriately qualified legal team, can run into the hundreds of thousands of dollars – far beyond the capacity of small religious communities or organisations.

In Australia, the normal rule in civil litigation is that the loser pays the winner’s costs; but the position is much more complex than this. Under court rules developed to encourage settlements, the normal costs rule can be partially displaced if the winning party has earlier refused an offer of settlement better than the result obtained through the trial.24

In any event, the costs which are allowed to a successful litigant are known as party and party costs, and the actual amount paid to the legal team may be greatly in excess of these recoverable costs. This is because party and party costs are usually based on a set scale of charges for different kinds of work done.

Where the successful litigant has not been charged the scale fees by her or his lawyer, but has been charged higher fees (usually on an hourly rate), then the difference between the scale amount and the actual fees charged must be met by that litigant.

These actual fees are known as the solicitor-client costs. Even if the court or tribunal does award substantial costs, this does not mean that the losing party will be

One of the significant features of the Catch the Fire Ministries case is that it demonstrates the potential reach of the Victorian law to include teaching given at Christian seminars and conferences. There can be no doubt that such seminars are public rather than private within the meaning of the Victorian legislation.

They are typically advertised, at least within church congregations, and anyone is welcome to attend. However, no-one need attend a seminar of this kind, and it is to be expected that the audience for such a seminar would be Bible-believing Christians who choose to attend a seminar about another faith from a Christian perspective.

This does not prevent a complaint being made by people of other faiths who choose to attend such a seminar without sharing the worldview of its organisers.

The fact that a religious leader could be sued for communicating religious beliefs at a meeting intended for adherents of his or her faith because what is taught might cause grave offence to someone of another faith who happens to be, or indeed chooses to be in the audience, is troubling.

The possibility of a lawsuit may intimidate religious leaders, of whatever faith, from teaching and expressing what they believe their faith requires or from expressing a point of view which might offend others. Because of the costs associated with litigation, and its stress and unpredictability, the threat of litigation is a dangerous weapon even if it is unlikely to be successful.

A gun does not have to be loaded to be terrifying. It is enough that a person towards whom the gun is pointed believes that it is loaded, or fears that it might well be.

The concentric circle effect of statutory interpretation

The second source of collateral damage to religious freedom arises from the concentric circle effect of statutory interpretation. The nature of litigation is that over time, expansionary pressures are placed upon definitions. Because litigation is adversarial, it will often be in the interests of a claimant to argue for a wide definition or an expansive interpretation of the law. The parties may indeed have vested interests in giving different interpretations of the provision, motivated not by a desire to determine what the rule maker meant, but to advance the interpretation which is most beneficial to their case.

Furthermore, whatever words a parliamentary draftsman uses, there is likely to be a penumbra of uncertainty surrounding their application. The parliamentarian in proposing or voting for a Bill, may have in mind the prohibition of the most appalling and indefensible conduct. However, it is not only the most appalling forms of conduct which end up before civil courts.

Judges and other decision-makers will, over the course of time, receive evidence of conduct which clearly is prohibited on any interpretation of the definition, conduct which is probably within the definition, conduct which may or may not be within the definition, and conduct which is probably not within the definition.

The process of adversarial litigation over time forces courts and tribunals to define the boundaries of the meaning of words. As a consequence, while legislators may be focussed on the epicentre of a word, judges have to explore its penumbra.

The meaning of words gradually expands like ripples spreading from the centre of a pond. This is the concentric circle effect of statutory interpretation.

The evolutionary nature of legal development through case by case decision-making may gradually expand the scope of legislation over time out from its central concerns to reach less obviously egregious behaviour.

Law, in other words, has a tendency to take on a life of its own. Like a new vessel launched onto the open seas,25 legislation once implemented no longer remains moored to its origins and confined to the motivating circumstances of its enactment.

The collateral damage from folklaw and risk-averse management

Another source of collateral damage is from the difference between what the law actually is and what people think it requires.

The law that impacts upon people’s lives is not the law as enacted by parliaments, and not even the law as interpreted by the courts.

What matters is the law as people believe it to be.

This folklaw may have only a tenuous connection with the law as enacted or applied in the courts. There is often a Chinese whispers effect as the perceived meaning of laws is spread through general communities of people who may not have a copy of the law itself.

Another reason why the law on the books is given an altogether different meaning in practice is because the fear of lawsuits, whether soundly based or not, leads to riskminimising behaviour in organisations. This in turns leads to an expansionary interpretation of laws in the affected communities.

This occurs because the best way to avoid crossing a boundary is to go nowhere near it. Lawyers are interested in defining carefully the boundaries of laws, in order to determine the scope of their application. Managers in organisations are not nearly so interested in boundaries. The question is not where the boundary lies, but what guidance can be given to members of organisations to ensure as far as possible that members do not stray near the boundary.

The consequence is that narrowly drafted laws on the statute books can be given an expansionary scope in employment manuals, organisational guidelines and policy documents. This can be seen in other areas of law that impact upon organisations.

At its extreme, risk-averse management converts sexual harassment laws into no-dating rules in the workplace, and child protection concerns into rules that teachers and others working with children should not even touch them.26

Risk averse management can turn laws which properly aim to protect the vulnerable into organisational rules which oppress everyone.

In similar ways, a law which is not intended to inhibit religious expression, but which prohibit certain kinds of speech, may have the effect of constraining speech far beyond what was intended.

The absence of a human rights framework

A fourth reason why religious vilification laws can cause collateral damage to religious freedom is that, in Australia at least, they do not operate within the context of a constitutional human rights framework. Rights often exist in tension with one

another. When constitutions or human rights’ laws in other countries enumerate a variety of different rights, and require courts to evaluate legislation or government action in the light of them, courts have to balance different rights and interests, all of which are protected by legislation.

Tests of proportionality are utilised to work out the balance between different interests. An example of such a balancing is to be found in the International Covenant on Civil and Political Rights.

Article 27 provides that in states which have ethnic, religious or linguistic minorities, persons belonging to such minorities shall not be denied the right, in community with other members of their group, to enjoy their own culture, to profess and practise their own religion, and to use their own language.

This is subject to the qualification, contained in Article 18(3), that states are entitled to impose such limitations on the exercise of people's freedom to manifest their religion or beliefs as are necessary in the interests of public safety, order, health or morals, or for the protection of the fundamental rights and freedoms of others.

The interpretation of anti-discrimination laws and anti-vilification laws in Australia does not occur against the background of human rights’ guarantees which protect different interests.

Statutes must be interpreted according to their language and intent without necessarily a legitimate competing interest being given the same legal protection. No law in Australia protects freedom of speech or association, beyond freedom of political communication, which has been found to be an implied right in the Federal Constitution.27 There is also a limited guarantee of religious freedom in the Federal Constitution, but it only applies to Commonwealth legislation.28 Thus the balancing exercise often required when freedom of speech competes with other legitimate interests and concerns, is not an explicit part of the process of legal reasoning in Australia in the way it is in other jurisdictions.

The Racial and Religious Tolerance Act 2001 in Victoria does at least attempt to encourage an assessment of proportionality. Section 4(1)(b) provides that one of the object of the legislation is:

Subsection (2) provides that “It is the intention of the Parliament that the provisions of this Act are interpreted so as to further the objects set out in sub-section (1)”.

The religious vilification provisions in Queensland and Tasmania have no such objects clause to encourage a balancing exercise in the interpretation of the

legislation. Even the Victorian objects clause is of limited efficacy. An objects clause is not the same as a protected or entrenched right.

5. The Divisiveness of Vilification Legislation

One of the dangers of vilification legislation is that it may be seen as a new means of pursuing a long-existing conflict before a neutral arbitrator. The issue here is not that vexatious claims are brought, for often the claimant will have a passionate sense of grievance.

Rather, the problem is that the legal system just becomes another theatre of a conflict which it cannot possibly resolve, because the conflicts are political or religious.

This was certainly the view of Peter Costello, the Treasurer in the Federal Coalition government. Commenting in general terms on the wider issues raised by the Catch the Fire Ministries litigation, he had this to say about Victoria’s religious vilification law:29

Vilification legislation in Australia has certainly been invoked in circumstances which to a reasonable person might not appear to be obvious forms of hate speech.

In Judeh v Jewish National Fund of Australia Inc,30 complaint was made about an advertisement which appeared in the Australian Jewish News. The advertisement was headed, "Remember the Future." It stated:

"Every man and woman should make a will. Every Jewish person should include in it a legacy, however modest, to Israel. Israel will benefit if you make a will through the Jewish National Fund and so will you. Your name will be remembered forever in the continuing development of Israel through a living project of your choice. We can arrange for your will to be drawn up professionally, free of charge."

The plaintiff’s argument was that by placing this advertisement, and including the map, the defendant organisation had, on the ground of the race of Arab Palestinians in which the plaintiff was included, engaged in conduct that incites hatred against, serious contempt for, or revulsion or severe ridicule of, that group. The reason for this, it was argued, is that the map effectively denies the existence of Palestine. The complaint was summarily dismissed, but the Deputy President expressly stated that she did not regard the complaint as an abuse of process or vexatious. She also noted that the complainant made three other complaints against other organisations and these complaints were withdrawn.

The problem with a case of this kind is that whatever the court or tribunal decides it cannot resolve the conflict between its citizens. For the heart of the conflict is not an advertisement but the Israeli-Palestinian disputes about a homeland for the Palestinian people. The result of a vilification case brought in faraway Melbourne could never have done more than require a Jewish organisation to change its logo. However, the danger for the courts is that if vilification laws are invoked in such cases, then courts and tribunals will be dragged into great political and religious controversies, with victory in a given case seen as a tactical win for one side or the other. In such cases, the danger is that the domestic legal system will provide another theatre of war without its involvement doing anything constructive to resolve the underlying conflict.

In another case, a member of the Orthodox Jewish community complained about a farewell speech given by the retiring President of the NSW Jewish Board of Deputies.30 The speech was reported in a Jewish newspaper. In the speech, the retiring President criticised a “small part of the Orthodox community” who wanted to make out that the Board of Deputies was not representative of Orthodox Jewish interests. Again, the claim (of racial vilification) was summarily dismissed, and this was upheld on appeal, but it is interesting to speculate whether the claim would still have been summarily dismissed if there had been a ground of religious vilification available to the NSW applicant.

It remains to be seen whether the experience of inter-faith conflict generated by vilification laws will cause a rethink of the use of this legislation to promote tolerance. The power to bring a complaint to a state body, albeit one which proceeds first by means of conciliation, can exacerbate conflict by giving it a forum in which a battle can be fought out. A complaint only has to be plausibly within the Act to be accepted. Once a full analysis has occurred, it may become evident to an adjudicator

Religious Vilification and Truth

The collateral damage from religious vilification laws to important societal interests is much wider than for any other form of vilification law, because the chilling effect of such laws is on people’s right to communicate their understanding of truth.

The protection of truth-telling is an important justification for the right of freedom of speech, if not the only one.31 As Justice Oliver Wendell Holmes once wrote: “The best test of truth is the power of the thought to get itself accepted in the competition of the market.”33

The secular post-modernist, or the religious leader who believes that all the major world religions are merely different paths up the same mountain, may be sceptical of all absolute truth claims, but for many devout religious believers it is the very truth claims of the religion which give them inspiration and hope.

This point is well expressed by Amir Butler, the Executive Director of the Australian Muslim Public Affairs Committee, who published an article in Melbourne’s Age newspaper, critical of Victoria’s religious vilification law. He wrote:34

The vigorous proclamation of truth need not lead to disharmony in the community. One can respect a person with whom one disagrees - and the more so because they express deeply-held beliefs rather than being tossed around by every whim and fashion.

In democracies, there is a long tradition of people holding, expressing and passionately debating their views of what is true and right. To risk curbing truthtelling which offends others is to risk our way of life.

Religious Vilification and Respect for the Law

The final concern about religious vilification laws is that they can undermine the authority of law.

Law has its most powerful impact if it is believed in.35 If it reflects a morality which people endorse, requires behaviours which people accept are right (whether or not

When law buttresses shared morals and values, it is wisely used and can complement educational and other positive strategies to promote acceptable behaviour. Where, however, governments impose standards of behaviour through law on a reluctant population, they risk more than they gain. Compliance is coerced rather than voluntary and the legislation undermines belief in a shared community of interest between governors and governed.

In some cases, legislation may be nothing more than lawful force to achieve an outcome, and governments which rely on force as a central tool of achieving compliance are only as effective as their weapons.37 Legislation defines legality and illegality, but legitimacy is something different. Legitimacy is conferred by the assent of the people.

It is the legitimacy of law, and not its constitutional legality, which matter most for stable and harmonious societies.

Conclusion

The collateral damage from religious vilification laws raises issues that do not arise to the same extent in relation to other groups protected from vilification.

Religious freedom is an important human rights concern, guaranteed by international law.

There is no similar important interest to protect if vilification laws have a chilling effect on racial speech that falls short of vilification. It is difficult to see what important societal interest there is to protect on the other side of the boundary line from racial vilification, other than an abstract right to freedom of speech however ill-informed, prejudiced or insulting. There may be more of a societal interest in lawful communication concerning homosexuality. While all discrimination and public vilification are properly the subject of legislative prohibition, people do nonetheless have a right to their own moral views on sexuality, and to the extent that those moral views are informed by religious beliefs, to hold and express those beliefs.

Religious vilification laws have proven to be controversial and divisive. There has been much opposition to them from people of faith and integrity38 who are lawabiding citizens.

There is a real question as to whom they are designed to protect, and