Australian law problem solving

Introduction

Herein client, Ms Trish Elderberry has been charged with violation of s 25(1) of the Racial and Religious Tolerance Act 2001 (Vic). The charged arose from the events which transpired on 1 April near the Stilton Hotel wherein it was alleged that Ms Elderberry willfully and intentionally engaged in conduct that she knew was likely to incite others to threaten harm towards a class of persons or harm towards the property of that class of persons on the ground of religious belief or activity of that class of persons. In this instance, the class of persons referred to was the Secularist Society of Australia (SSOA), a radical secularist organization that is campaigning for the removal of all manifestations of religious belief and practice from the public sphere.

The pertinent issues to be resolved in order to advise whether Ms Elderberry violated s 25(1) of the Racial and Religious Tolerance Act 2001 (Vic) are as follows:

Whether or not the acts and the words uttered by Ms Elderberry were intended to incite others to threaten harm towards the SSOA.Whether or not Mr Spratt’s actions were primarily and/or solely motivated by the acts and the words uttered by Ms Elderberry.Whether or not Ms Elderberry can be held liable under s 25(1) of the Racial and Religious Tolerance Act 2001 (Vic).Applicable Laws and Jurisprudence

            In order to determine whether Ms Elderberry can be convicted of the offense charged, it is important to have a clear understanding of the applicable laws and precedents on the facts in issue.

            In this regard, the following provisions of the Racial and Religious Tolerance Act 2001 (Vic) will be relevant in deciding on the issues:

S 25(1) which states that “a person (the offender) must not, on the ground of the religious belief or activity of another person or class of persons, intentionally engage in conduct that the offender knows is likely (a) to incite hatred against that other person or class of persons; and (2) to threaten, or incite others to threaten physical harm towards that other person or class of persons or the property of that other person or class of persons.”

s 11(1)(c)(ii) which states that “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 … (c) in the course of any statement, publication, discussion or debate made or held, or any other conduct engaged in, for … (ii) any purpose that is in the public interest;”

            The ruling in Owens v Gabriel[1] (when is there incitement) and in Goliath v David[2] (in holding the case of Samson v D’ Lilah[3] inapplicable in defining the phrase “holding or not holding a lawful religious belief”) are likewise material and relevant in Ms. Elderberry’s case.

Application of the Rules/Jurisprudence to the Facts

            Section 25(1) Racial and Religious Tolerance Act 2001 (Vic) upon which the charge against Ms Elderberry is gounded states that

“a person (the offender) must not, on the ground of the religious belief or activity of another person or class of persons, intentionally engage in conduct that the offender knows is likely —

(a)   to incite hatred against that other person or class of persons;”

With respect to the first issue, it should be noted that the conduct in which Ms Elderberry allegedly engaged in involved the latter’s act of denouncing the SSOA by saying “Secularists are Satan’s spawn”; wearing a tee-shirt bearing the words “Stamp out Secularism”; and carrying the banner reading “The Holy Flame Will Roast the Unbelieving Secularists”.

These acts or conducts while admittedly can be considered intentional and voluntary acts and tends to evoke strong feelings against the SSOA members, does not, however, appear to have been carried out by Ms Elderberry with the intention of inciting others to hatred against the SSOA. Ms Elderberry can therefore, very well argue, that her conducts were in lawful exercise of her right to expression.

In the case of Owens v Gabriel,[4] the Victorian Civil and Administrative Tribunal held that:

… the mere fact that someone does feel such hatred does not entail that someone must have been guilty of incitement. … Whether or not some conduct is incitement depends only [sic] the nature of the act itself and its immediate context, and not upon the chance events that may or may not follow after it.

Hence, Ms Elderberry can argue that her conduct does not amount to incitement owing to the fact that the same was carried out in her lawful exercise of her freedom to express her sentiments and belief and not for the purpose of influencing others to feel hatred or anger towards the SSOA.

Coming now to the second issue, it appears from the given facts that Mr Sprat, at the time of the incident, was feeling particularly distressed. His resentment towards his wife, who left him years ago, coupled with the realization that the Church of the Flying Spaghetti Monster (FSM), of which he considers himself an enthusiastic believer, was a satire were the predominant cause of his violent outburst. Consequently, Mr Sprat’s unlawful acts cannot be attributed to Ms Elderberry’s speech and conduct because his (Mr Sprat) actuations was only a “chance event” and does not depend upon the conduct of Ms Elderberry. To reiterate the ruling in the case of Owens v Gabriel,[5] “Whether or not some conduct is incitement depends only [sic] the nature of the act itself and its immediate context, and not upon the chance events that may or may not follow after it.” It follows then that the nature of Ms Eldelberry’s conduct, not Mr Sprat’s acts, must be considered in determining whether the Ms Elderberry is indeed guilty of incitement.

Finally, on the third issue, it is submitted that the charge filed against Ms Elderberry under s 25(1) of the Racial and Religious Tolerance Act 2001 (Vic) will fail. In determining whether a person has contravened the tenor of the aforementioned provision, it is relevant to correlate the same with ss 8 and 11(1)(c)(ii)  of the same Act. Section 8(1)[6] defines religious vilification while section 11(1)(c)(ii) states the exceptions, to wit:

 “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 …

(c) in the course of any statement, publication, discussion or debate made or held, or any other conduct engaged in, for …

(ii) any purpose that is in the public interest;”

Ms Elderberry satisfied this pertinent provision in the sense that her conduct was engaged in reasonably and in good faith. Her conduct was made in the course of a rally organized by the Australians for Religious Freedom (ARF) for a purpose impressed with public interest, that is, to express their beliefs and views towards the SSOA’s intention to lobby for the abolishment of reading of prayers as part of the opening procedures of the Federal Parliament including all State and Territory Parliaments in Australia.

The abolition of the Prayer for Parliament and the Christian Lord’s Prayer in the opening day of the Parliaments in Australia is a matter of public interest. As such, every citizen in Australia can validly question the wisdom for the abolition of the same. In the same vein, a public rally organized for this purpose is well within every person’s freedom of expression.

            Furthermore, in the case of Goliath v David,[7] the Victorian Court of Appeal expressed its uncertainty on the persuasiveness of the ruling in Samson v D ’ Lilah.[8] In the latter case, it has been ruled that atheism does not come within the scope of the Racial and Religious Tolerance Act 2001 (Vic) while in the former, said ruling has not been applied on the issue of whether agnosticism comes within the scope of the Racial and Religious Tolerance Act 2001 (Vic).

Conclusion

            To capitulate, Ms Elderberry cannot be held liable under s 25(1) of the Racial and Religious Tolerance Act 2001 (Vic) because her conduct comes within the exception provided under 11(1)(c)(ii) of the same Act. Hence, Ms Elderberry’s conduct cannot be considered as intended to incite hatred against the SSOA members. Moreover, the act of expressing one’s views in a rally held in a public place on a matter of public interest is a valid exercise of a person’s right to expression.

[1] [2007] VCAT 567.[2] [2005] VSCA 34.[3] [2004] VSC 666.[4] Above n 1.[5] Ibid.[6] “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.”[7] Above n 2 (Black, White and Grey JJA).[8] Above n 3.