Alston, Bruce --- "The Jihad Seminar, by Hanifa Deen" [2009] ALRCRefJl 48; (2009) 94 Australian Law Reform Commission Reform Journal 67

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The Jihad Seminar

By Hanifa Deen Reviewed by Bruce Alston

In March 2002, an evangelical Christian group, Catch the Fire Ministries, held a seminar entitled ‘Insight into Islam’. While the title might sound like an invitation to inter-faith understanding, the seminar became the subject of prolonged litigation under newly enacted Victorian anti-vilifi cation legislation after opinions were expressed about Muslim beliefs and conduct, including that Muslims are violent, terrorists, demonic, seditious, untruthful, misogynistic, paedophilic, anti-democratic, anti-Christian and intent on taking over Australia.

The Islamic Council of Victoria took a complaint to the Victorian Civil and Administrative Tribunal (VCAT) claiming that the organisers of the seminar had breached s 8 of the Racial and Religious Tolerance Act 2001 (Vic) (the RRTA). The RRTA states that 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’.

This book by Hanifa Deen provides an informed and entertaining account of the background to the legal wrangling. By examining the motivations and understandings of those engaged in the dispute, her account paints a much fuller picture of what the parties thought was at stake than can be obtained simply by reading the legal material.¹

Briefly, in 2003, VCAT (Higgins J) found the Islamic Council’s complaint to be substantiated and that statutory exemptions for conduct engaged in ‘reasonably and in good faith’ were unavailable in the circumstances. In reaching this latter conclusion, VCAT found that the ‘unbalanced’ presentation of the seminar evidenced an absence of good faith, whether viewed subjectively or objectively.

The fact-finding process in VCAT involved evidence from religious experts as to the accuracy of a Christian pastor’s statements concerning Muslim religious beliefs. Matters traversed included the meaning of the term ‘jihad’, practices in Muslim conversion, the legal framework in Shari’a law for the treatment of non-Muslims, the prevalence of extremist views within Islam, and the role of holy texts and their interpretation in understanding religions generally.

In a 2005 determination on remedies, Higgins J ordered that the respondents, Catch the Fire Ministries, publish a series of prominent advertisements reporting that they had breached the RRTA and admitting that the seminar was ‘essentially hostile, demeaning and derogatory’ of Muslims, Allah and the Prophet Muhammad.² The respondents were required to provide undertakings to desist from making such statements in future.

For the outside observer, legal fact-fi nding about religious beliefs may verge on the nonsensical—an argument about the nature of respective ‘invisible friends’. Whatever view you take of religion, however, the case raised important issues concerning the desirability and effectiveness of religious anti-vilifi cation laws. At present, only Tasmanian, Queensland and Victorian legislation makes religious vilifi cation unlawful.³ Human Rights Australia has in two separate reports in 1998 and 2004, recommended the introduction of a federal law rendering vilifi cation on the ground of religion or belief unlawful.⁴

In this case, the respondents appealed. In 2006, the Victorian Court of Appeal upheld the appeal and ordered that the case be reheard in the VCAT. The Court found that VCAT had decided that the seminar contravened s 8 of the RRTA because Higgins J was satisfi ed that the speaker was moved or caused by the religious beliefs of Muslims to make the statements which he did at the seminar, and that an ordinary reasonable person would be inclined by the statements to hate Muslims. The Court of Appeal considered that this was not the question which needed to be decided. Rather, the question was whether, having regard to the content of the statements and to the nature of the audience, the natural and ordinary effect of what was stated was to encourage the hatred of Muslims based on their religious beliefs.

Many people, especially those unfamiliar with the refi ned art of judicial statutory interpretation, would fi nd distinctions such as these rather incomprehensible. Perhaps the law had its revenge on religion by displaying its own ability to count angels on the head of pin?

Following the appeal, after attempting conciliation and exhausted by their legal and theological sparring, the parties fi nally settled in a confi dential out-of-court settlement, bringing the legal marathon to a close. Deen notes that the case, originally expected to be over in three days, took almost six years before petering out with the key question still unanswered: was the conduct complained of vilifi cation under the RRTA? In the end ‘the wisest course for both sides was to publicly accept a draw and return home to tell their supporters they had won’.

It is problematic to limit free speech in relation to beliefs except by reference to actual urging of force or violence—rather than incitement of contempt, ridicule or even hatred. Laws such as the RRTA, from this perspective, come uncomfortably close to establishing redress for ‘defamation of religion’ as a human rights violation. Such an approach was supported by a November 2008 (non-binding) resolution of the United Nations Human Rights Council, which many fear could be used to justify restrictions on freedom of speech in Muslim countries.

The importance of Deen’s account is to place the dispute in its full cultural context and to explain something about the motivations of the personalities involved. She is open about her own standpoint—after hearing accounts of the seminar she was in no doubt that Australian Muslims had been vilifi ed in her understanding of the term. On the other hand, she says, ‘was it really worth getting worked up about?’ Should anyone really care about what ill-informed fundamentalist Christians might say about contemporary Islam? The Islamic Council certainly did, and were entitled to seek redress through the law—but may not have anticipated the unpredictable legal and media reactions.

Bruce Alston, ALRC Senior Legal Officer

Endnotes

¹. See Islamic Council of Victoria v Catch the Fire Ministries Inc [2003] VCAT 1753; Islamic Council of Victoria v Catch the Fire Ministries Inc [2004] VCAT 2510; Catch the Fire Ministries Inc v Islamic Council of Victoria Inc [2006] VSCA 284; (2006) 15 VR 207.

². See Islamic Council of Victoria v Catch the Fire Ministries Inc [2005] VCAT 1159.

³. Anti-Discrimination Act 1998 (Tas) s 19; Anti-Discrimination Act 1991 (Qld) s 124A; Racial and Religious Tolerance Act 2001 (Vic) s 8.

⁴. Human Rights and Equal Opportunity Commission, Article 18: Freedom of Religion and Belief (1998), Rec 5.3; Human Rights and Equal Opportunity Commission, Isma—Listen: National Consultations on Eliminating Prejudice against Arab and Muslim Australians (2004), 6, 129.