The second development I want to briefly note today is a decision of the Victorian Civil and Administrative Tribunal, Sisalem v The Herald & Weekly Times Ltd [2016] VCAT 1197 (19 July 2016). This is an important and helpful decision, in my opinion, supporting free speech on religiously related issues.

In this case, Mr Sisalem is a Victorian Muslim who claimed that the Herald and Weekly Times, publishers of the Herald Sun newspaper, had breached various provisions of the Victorian Racial and Religious Tolerance Act 2001. In particular, s 8 of that Act provides that:

Religious vilification unlawful

(1)     A person must not, on the ground of the 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.

The claimed “conduct” was the publication of an article in the Herald Sun shortly after the November Paris terrorist attacks suggesting that some fundamental features of Islam needed to change if such incidents were to be avoided in the future.

I may be able to offer a more detailed analysis of the decision in future, but it seems important enough to flag at this early stage. The Tribunal Member, J Grainger, rejected the claims made under s 8 (and also other claims made under provisions of the legislation creating a criminal offence of “serious religious vilification”, which claims in any event were not able to be heard by VCAT but needed to be brought in an ordinary criminal court.)

In rejecting the claim that there was liability for a breach of s 8, Grainger M referred extensively to the decision of the Victorian Court of Appeal in Catch the Fire Ministries Inc v Islamic Council of Victoria Inc (2006) 15 VR 207. I have commented in some detail on the issues raised by this case, and problems with Australian laws on religious vilification, in two previous papers, here and here. I am pleased to say that Grainger M’s decision here is a very good one.

The section 8 claim was rejected, broadly speaking, because the Tribunal agreed with comments in the Catch the Fire decision that the issue was not whether individual Muslims were offended and upset by what was said about their faith, or indeed whether the commentary was balanced or not, but simply whether the comments had the effect of inciting the relevant emotions of hatred, contempt for, revulsion of or severe ridicule of, Muslim persons because of their faith. The issue, as put clearly by Nettle JA in the Catch the Fire decision, was not whether the tenets of the faith were attacked, but whether the comments concerned would lead to the persons of that faith being subject to the proscribed emotions. (His Honour has since left the Victorian Court of Appeal and been appointed to the High Court of Australia.) His Honour’s words at para [80] in the previous case are worth quoting (as cited at [49] in the Sisalem decision):

.. [section] 8 is not a prohibition against saying things about the religious beliefs of persons which are offensive to those persons, or even against saying things about the religious beliefs of one group of persons which would cause another group of persons to despise those beliefs. It is against saying things about the religious beliefs and practices of persons which go so far as to incite other persons to hate persons who adhere to those religious beliefs.

In the circumstances Mr Sisalem had not presented evidence sufficient to show that person would be caused to hate etc Muslim persons because of the article- see the summary conclusion at para [67].

It is important to note that, even if s 8 had apparently been breached, there are defences set out in s 11 of the legislation, which may well have been applicable. Section 11 provides:

Exceptions—public conduct

(1)     A person does not contravene section 7 or 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.

It could have been seriously argued that the press report was on a matter of “public interest”, and in particular, since it consisted of reporting the expressed views of Members of Parliament, to amount to a “fair and accurate report” of those views. But since the Tribunal held that in any event s 8 had not been breached, Grainger M did not go on to apply the s 11 defences.

The case is an important example of the need to preserve freedom of speech to discuss religious issues, and even to critique the tenets of a particular religion, so long as in doing so there is no attempt to stir up hatred or violence against individuals who adhere to the religion.