John Cleary: Well the great creation trial has ended without a definitive conclusion. It may have dominated the front pages of our newspapers for a moment, but interpretations of its significance vary widely, and the arguments began almost as soon as the judgment of Justice Ronald Sackville was handed down on Monday morning.
Ronald Sackville: This litigation has attracted considerable public attention doubtless because it has been thought to be yet another contest in the legal arena between science and what is sometimes referred to as creation science. The court notes that the rejection of the applicant's arguments reflects a broader proposition, namely that the court should not attempt to provide a remedy for every false or misleading statement made in the course of public debate on matters of general interest.
Some issues, no matter how great the passions they arouse, are more appropriately dealt with outside the court room. Not every misrepresentation made publicly contravenes the Fair Trading Acts.
In his lectures, Dr Roberts represented that he had personally undertaken or participated in systematic investigations at the site designed to determine whether it contained the remnants of Noah's Ark. He also represented that he had personally carried out, or caused to be carried out, scientific tests on objects retrieved from the site. These representations were false, and had the Fair Trading Acts applied, would have constituted misleading or deceptive conduct on Dr Roberts' part.
Solicitor: Well we're naturally disappointed with the decision. It has essentially been decided on a legal issue as to whether or not Roberts engaged in trade and commerce. However His Honour did find that Roberts had engaged in misleading and deceptive conduct, but simply that it was not actionable under the Fair Trading Act.
Ian Plimer: We were able to show legally that his work was misleading and deceptive, and I've argued for decades that the one golden thread that unites creationists is misleading and deceptive conduct. So we're quite pleased that we've been able to show that.
Alan Roberts: Yes, I'm delighted, I can tell you that. My wife is delighted, the people in Ark Search are delighted too, not only that we've been completely vindicated when it comes to this nonsense that's been set up under the Fair Trading Act, but particularly because the judgement that was handed down by His Honour has in fact preserved the free speech of anyone who has something important to say publicly.
Reporter: How do you respond to the fact that the judge did say some of your representations were false?
Alan Roberts: Excuse me.
John Cleary: Alan Roberts, and it seems he's been pursued by some of us in search of responses to the principles in this case.
Well Alan Roberts earned it seems, a victory on a technical knock-out. Professor Plimer was not able to establish to the judge's satisfaction that Dr Roberts and Ark Search were engaged in Trade or Commerce for the purposes of the Fair Trading Acts. However as we heard, the judge did seem to think that in certain areas Dr Roberts was involved in deceptive practices. And also David Fasold, Professor Plimer's partner in the case, did win his action for copyright against Roberts and Ark Search.
Later that day, both sides held press conferences which picked up on the issues of free speech raised in the judgement. Ian Plimer and his team pursued what they saw as some of the dangers of the case, beginning with Barry Williams, of the Australian Sceptics.
Barry Williams: From our perspective, looking at all these pseudo scientific and para-normal claims made in society which can do nothing but undermine the mental and intellectual health of the society, we think it's important that public figures like Professor Plimer and other academics, do stand up and challenge things that are far too often let go without comment. If you are allowed to hide behind your personal convictions, and that allows you to avoid the rigours of the law, then it's very dangerous for our society. There must be a line drawn there somewhere. There are lots of new age nostrums around, there are lots of people doing some very dangerous things, and if the law doesn't protect us, what does?
Ian Plimer: But where do you draw that line, where do you draw it? Does that mean now that some people with some curious beliefs can come out here, hand us some particular idea or viewpoint, fleece people of thousands upon thousands of dollars, which in the ordinary course of things they couldn't do, because they'd be up for fraud, and hide behind Section 52, or Section 42 and say, 'No it doesn't apply because I happen to believe in the god Jupiter or whatever it is', or whatever, and this is part of his belief.
Reporter: But this is not a new issue, that's been going on since the Scientology case in the 1960s in this case, it's not a new issue at all.
Ian Plimer: That's exactly right. See the important thing is that with freedoms come duties and responsibilities. And I would argue that if there is to be freedom of opinion and freedom of religion, with that comes a great responsibility. Now I fear that in this case we now have a situation where I could for example, set up a Church of the Dilated Pupil Holy Rollers; I could give out doctorate degrees at $50 each to every grade 8 kid in this country; we could therefore have the most highly qualified society in the country. That of course is misleading and deceptive conduct. If I establish myself as a structure which is a non-profitmaking structure, then we now have a situation where it can be shown that the consumer is not protected from me. And this is a broad issue which is why the Australian Sceptics have been involved. They are concerned with people peddling nonsense, and people peddling nonsense making money. And so in effect we're saying that there is no remedy under the consumer protection legislation to protect the average punter from the snake oil merchant.
John Cleary: Ian Plimer, at his press conference on judgement day in the creationism case.
Well another member of the ABC's Religious Unit has also had a long interest in snake oil, cults, and marginal religions. Dr Rachael Kohn, the presenter of The Spirit of Things. Rachael, thanks for joining us today. The point that Ian Plimer makes about this opening the door to all sorts of snake oil salesmen, surely that's a perennial problem with eccentric religious groups in a democratic society?
Rachael Kohn: Absolutely. But it has been met before by using say Trade Practices Act successfully. For example in the '60s, when scientology was claiming that E-metres could affect physical cures, those E-meters were confiscated; they were returned later on but with the promise, the proviso, that they could not claim that these E-meters actually effected physical cures. There is a line between say counselling and making claims for healing. And that fine line between beliefs and counselling and then going into the - possibly going into claims about physical cures, does migrate into the area of false claims and indeed Trade Practices can be brought in there.
John Cleary: So there is a point at which false claims, eccentric claims, can be challenged, but they are at the point where they cross the boundary of the established law as we have it.
Rachael Kohn: Existing law, and it's interesting because say in the case of Scientology, they have recently successfully used the Trade Practices Act to protect them for example, from having their teachings disseminated over the internet. So it can work both ways. Religious groups or say, esoteric or eccentric groups, have recourse to the law, but then so does the population, and it all depends on whose interests are best met by it.
John Cleary: But when we come to something like creation and evolution, there may be disagreement as to the facts, but there may be even the ability for a group to hold opinions which are at odds with the facts as known, that doesn't make them illegitimate, they are still perfectly entitled to propagate those views.
Rachael Kohn: Indeed. I mean there are all kinds of schools that exist in Australia and around the world that teach all sorts of things that a lot of people don't believe in, but it is their right to do so.
John Cleary: Until they cross the threshold of the law.
Rachael Kohn: And endanger the lives of those who perhaps go to those schools, or whatever.
John Cleary: Scientology is the best known examples, and you've used Trade Practices law there, but there are examples where other areas of the law are brought in to this discussion. I think perhaps of the Children of God case a couple of years ago.
Rachael Kohn: Yes there are a great many cases around the world in which the law has been used either against the Children of God or against other groups, and vice versa. And the onus is on the prosecution or the defendant to argue the case the best they can and bring forth the evidence the best they can.
John Cleary: And if that evidence is not forthcoming to satisfy the judge, then the group is free to go about its business.
Rachael Kohn: Indeed.
John Cleary: Albeit in error.
Rachael Kohn: It may well be.
John Cleary: I guess the next question is what lessons you draw from an observation like this. I mean was the case a waste of time? Is it part of just the continuing dialogue that goes on in any free society?
Rachael Kohn: I think it's always going to be with us, as long as we have schools for example, that have their own curricula that can teach what they want, as long as they satisfy other curriculum needs of the State, for example. We're always going to find this. When it migrates into State schools, I think you've got a problem because we expect State schools to teach a certain kind of scientific curriculum that is not in any way "tainted" by religious beliefs.
John Cleary: And that conforms to a truth test which is a secular based truth test.
Rachael Kohn: Absolutely. The rules of evidence and so forth that the scientific community around the world respects.
John Cleary: Thank you, Rachael. And you can hear Rachael with The Spirit of Things, Sunday evenings at 6 on Radio National.