Findings on the Alpha Course & Fletcher

Justice Stuart Morris has recently handed down a ruling on a complaint brought by Witch Robin Fletcher against the Alpha Course, the Salvation Army and Corrections Victoria. Fletcher had attended an Alpha Course in prison, which he then brought a complaint about. The full findings of the Victorian Civil and Administrative Tribunal (VCAT) are on the internet. The link is at the bottom of the page.

See also Daniel Scot’s (in)credible testimony for a reference to the earlier case on this issue.

This is an important finding for the on-going process of interpreting the Victorian Racial and Religious Tolerance Act (RRTA).

1. Religious Freedom vs. protecting Persons

In his findings Judge Morris makes a clear distinction between criticizing beliefs and incitement against people. He says

“The law recognizes that you can hate the idea without hating the person”.

He suggests that one’s conduct could advocate contempt or ridicule for a religious belief or activity, provided this does not incite hatred, contempt or ridicule of persons or classes of persons who hold such beliefs or engage in such activities:

"The Act is not concerned with the vilification of a religious belief or activity as such. Rather it is concerned with the vilification of a person of a class of persons on the ground of the religious belief of activity of the person or class."

"...criticism of a religion or religious practice is not a breach of the Act; the Act is concerned with inciting hatred of people on the basis of race or religion."

This is a very welcome development, which could help answer one of the deepest concerns in the Victorian Christian community about the Act. It does however beg the question of where exactly the line is to be drawn between ideas and the people who hold them. Judge Morris seems to take it for granted that a line can be drawn. His finding seems to imply that the onus is on the complainant who wishes to use the RRTA to explian how an attack on their beliefs is incitement against them personally: it would not be enough just to show that your religion, holy book or prophet had been vilified.

Judge Morris has applied, for the first time, genuine considerations of religious freedom to the interpretation of the Act, rather than just freedom of speech considerations. This is essential, and in doing this he addresses a lack within the Act itself. The objects of the Act affirm the value to our society of freedom of expression, but say nothing about the value of freedom of religion. This lack, I suggest, is a serious flaw, contributing factor to the climate of confusion which surrounds this new law. In addressing this confusion, Judge Morris has made a very welcome contribution.

Justice Morris' findings do however raise serious questions relating to the findings of Judge Higgins in another recent case, that of the Islamic Council of Victoria vs Catch the Fires. In those findings Judge Higgins did not make a consistent distinction between criticizing beliefs and incitement against persons. He states, for example, that criticism of the Qur`an, and even simply reading of verses from the Qur`an, could be incitement against Muslim persons. Judge Higgins' remedies also perpetuate this confusion, as they appear to instruct the respondents Daniel Scot and Danny Nalliah not to say certain types of things against Islamic beliefs, rather than certain types of things against Muslim persons.

2. The meaning of “incitement”

Judge Morris focuses on the meaning of the verb 'incite' as a key point in interpreting the Act. He says of the Act’s construal of 'incite' is that it does not merely mean 'cause', but:

• 'inflame, set alight'.
• and 'generate strong and negative passions', for example so 'that violence might result'.

This is a welcome development, as it narrows the interpretation of 'incite', and links it to a potential bad effect, that is a person could be stirred by such negative passions that they might do something bad to another person or class of persons. However Judge Morris does not offer reasons for adopting this definition: he simply asserts that this is what 'incite' must mean. He appears to have come up with it solely by relying on what he regards as the intended purpose of the Act. Whether this is what 'incite' actually means in English, and whether this approach will stand up to legal challenge is far from clear. What would be preferable is for the Act to be amended so as to make clear what is meant by its use of 'incite'.

Judge Higgins cites a different definition of 'incite', which he says he has taken from the Macquarie dictionary. According to Judge Higgins, 'incite' means 'to urge, spur on, animate, stimulate or prompt to action.' This is quite a different conception of 'incite' from that of Justice Morris. When two judges appeal to such distinct definitions, how will future Tribunals, courts or even the EOC or the public make sense of this?

There were in any case serious problems with Judge Higgins' method. He lists a number of synonyms. This methodology is manifestly hopeless as a way of defining a meaning of 'incite', for the synonyms listed have distinct meanings, and one cannot tell which is the meaning which Judge Higgins intends to rely on. Moreover some of these meanings are manifestly at odds with the way Higgins actually applies the term 'incite' in his findings. That is to say: Judge Higgins does not actually use the definition of 'incite' which he offers. For example, he does not interpret 'incite' in his findings as meaning to 'prompt to action', as the Act itself prohibits the stirring up of passions, not prompting people to actions.

The verb 'incite' is not an easy word to interpret in the context of the Act. In everyday English it refers to spurring someone on to action which they would not have otherwise undertaken. This relates to its origins in a Latin word meaning to ‘bring into motion’. However the Act uses ‘incite’ to refer to stirring up emotions, which is something quite different and weaker than prompt someone to action. Justice Morris appears to attempt to bridge these two senses, saying that ‘incite’ means stirring up strong emotions to such a degree that they become ‘passions’ such that they would be likely to spur on the person who experiences them to initiate adverse, possibly violent, actions.

Given the obvious confusion surrounding the meaning of ‘incite’ in the Act, this is clearly an aspect of the Act which is in need of monitoring and perhaps also revision.

3. The ordinary person and religious world views

Judge Morris uses an interesting argument when he refuses to accept that calling witches ‘Satanists’ could possibly be incitement:

“To most people the question of whether witches are Satanists not only involves a concept which is nebulous, but also is an arid and irrelevant theological debate. It is not a vilification issue.”

Essentially what Morris appears to be saying is that for the ordinary person ‘satan’ is a mythological, irrelevant construct, and therefore attributing belief in this ‘satan’ to persons could not incite negative passions against them.

This is a dismissive and even contemptuous line of argument. Belief in Satan is an established doctrine of Chrisianity (and also of Islam), reflected for example in baptismal rites.

Moreover, most people have a fairly clear idea of what ‘satan’ means, which is ‘the personification of evil’. They understand this whether they believe in satan or not. The ordinary person would understand that to call anyone a satanist implies that they worship and serve evil personified. Disbelief in a theological construct does not necessarily entail that one does not understand the moral content of that construct.

It is troubling that Judge Morris is relying on a particular religious world view – perhaps his own – as definitive of the ‘ordinary’ person whose response is be considered by the objective test of incitement required by the Act.

This matter highlights one of the deep philosophical problems inherent in the Act, namely what religious world view VCAT officials will rely on to assess religious conduct as ‘reasonable’ or in ‘good faith’. If those who believe in satan, whether to worship or denounce him, are not included in the class of ‘ordinary’ people, does this imply that their potential for experiencing ‘passions’ is irrelevant to the workings of the Act? This is hardly sustainable in a multi-faith society. The definition of an ‘ordinary’ person cannot presuppose that he or she holds, or does not hold, a particular religious doctrine.

In the longer term, the community will be keenly interested to ask what religious world view the officers of VCAT will adopt in assessing religious claims which come before them. The potential for confusion, distress and even religious persecution through intruding personal religious prejudices into the findings of VCAT, as Judge Morris has perhaps done, is troubling.

A quite different approach to rejecting the ‘witches are satanists’ claim was offered by the respondents, who pointed out that as satanism is a religion practiced in Victoria, it could not be considered to be vilification to call anyone a Satanist, for if VCAT did ever make such a finding, that would vilify satanists.

4. Suggested revisions of the Act

Judge Morris has suggested certain revisions of the Act: i) that complainants should be required to seek leave of VCAT before embarking on arbitration and ii) that documents relating to complaints should be kept confidential during mediation, to enhance the likelihood of a successful resolution without adverse publicity.

Neither of these proposals are reasonable. As for the matter of seeking leave, the whole point of the civil proceedings which the RRTA establishes, is to encourage people who find themselves vilified to bring matters to the EOC and then to VCAT for resolution. It is unreasonable to invite complaints from the public, and then to enact a guillotine on them without allowing them to be heard. If people are bringing manifestly hopeless cases before VCAT, a better approach would be to remove the civil provisions of the Act altogether.

The proposals regarding confidentiality appear to have some justification. However at this stage it is vital that the full workings of this new Act should continue to be before the public eye. It would be wrong to conceal them just because some of the cases brought to VCAT are proving embarrassing, or inflaming religious tensions.

Judge Morris’ commonsense observation that arbitration can ‘actually inflame a dispute’ is a telling one, especially when we recall that ‘inflame’ is His Honour’s definition of ‘incite’. This legislation is intended to promote tolerance, but since some of the religious disputes which are coming before the VCAT are grounded on age-old differences in religious world views, the government should consider whether it is reasonable to expect that an Act which invites religious arbitration, a process which Judge Morris says can promote incitement of religious disputes, can also reasonably be expected to serve as a vehicle for furthering religious tolerance.

Conclusion

Judge Morris’s findings represent a positive step forward in understanding this confusing Act. He has brought onto the table certain key matters which have yet to be thoroughly debated and resolved. Ultimately it can only be a significant revision or recall of the Act which will resolve this confusion.

VCA finding Alpha Course Fletcher