Case Notes: Catch the Fire Ministries Inc v Islamic Council of Victoria Inc.  VSCA 284
3751 of 2005
This case may be viewed at: http://www.austlii.edu.au/au/cases/vic/VSCA/2006/284.html
Catch the Fire Ministeries Inc is an incorporated association which carries out Christian activities within Australia. In 2006, the association, along with two of its Assembly of God pastors, Pastor Nulliah and Pastor Scot, appealed a decision of the Victorian Civil & Administrative Tribunal ("the Tribunal") that they had engaged in conduct to incite hatred against and contempt for the Islamic faith as outlined in section 8 of the Racial and Religious Tolerance Act 2001 (Victoria). According to the Tribunal, no legitimate defence could be sustained under section 11 of the Act of engaging in such conduct reasonably and in good faith for any genuine religious purpose. The original action was brought by the Islamic Council of Victoria, an incorporated association representing Muslim and Islamic interests, which objected to some 2001 Catch the Fire Ministeries' publications as well as Pastor Scot's statements at a seminar at the Full Gospel Assembly in March, 2002.
On appeal, the true interpretation of section 8 was raised. In the original decision, the test applied was that of whether the seminar comments and the material in the publications would evoke hatred or another negative sentiment in the ordinary reasonable reader who had no underlying prejudices. However, in the Court of Appeal, it was argued that the words of section 8, "On the ground of the religious belief or activity of another person or class of persons", implied a definite link between such religious beliefs and the hatred or other emotion incited, but not necessarily of a causal nature as suggested in the Tribunal hearing. The matter for determination was rather whether Catch the Fire Ministeries Inc's audience was incited to hatred of Muslims because of their Islamic faith. All justices agreed that the Tribunal had incorrectly interpreted and applied the section.
Judicial consideration of the Tribunal's application of section 11 reached a different conclusion. Justice Nettle discussed all the elements thoroughly, suggesting that ultimately the legitimacy of the defence hinged on whether the conduct was engaged in "reasonably" for a genuine religious purpose. This objective standard would naturally reflect the views of reasonable members of a tolerant, multicultural society. Justice Neave in endorsing this approach was accepting of the Tribunal's construction of this section.
Both Justices Nettle and Neave also examined whether the Tribunal's interpretation of section 8 contravened the implied freedom of political communication in the Constitution, an implication based on the need to uphold reasonable, representative government. They failed to find any evidence of such a contravention, particularly where the Court of Appeal's construction of section 8 was adopted. In any event, both agreed that it was reasonable to restrict an implied freedom of political communication to avert religious vilification, a legitimate objective.
Ultimately, the appeal was allowed with the orders of the Tribunal being set aside. The matter was remitted for reconsideration to another member of the Tribunal. Justice Nettle pointed out that remedies such as an apology or corrective advertising could be re-ordered, but stressed that care should be taken to pinpoint the offensive, religious remarks with a view to suppressing their republication.