After all, if they are ordering a retrial, it doesnÂ’t seem like such a victory for the right to speak freely.

Two Christian pastors found to have vilified Muslims under Victoria's religious hatred law won their appeal and hailed the decision as a victory for free speech.

The Court of Appeal ordered the case to be reheard at the original tribunal, before a different judge and with no further evidence. It set aside the orders for public apologies in newspaper advertisements and for the pastors not to repeat their remarks.

Last year Judge Michael Higgins found that Pastors Danny Nalliah and Daniel Scot and Catch the Fire Ministries vilified Muslims at a seminar on jihad in Melbourne in March 2002, in a newsletter and a website article.

He said these suggested that the Koran promoted killing and looting, that Muslims wanted to take over Australia and terrorists were true Muslims.

Justices Geoffrey Nettle, David Ashley and Marcia Neave overturned that finding but rejected the appeal that the Racial and Religious Vilification Act was unconstitutional.

They ordered the Islamic Council of Victoria, which brought the original complaint, to pay half the appellants' appeal costs but left the costs of the original hearing to be decided by the judge who rehears the case.

On what basis was the original decision overturned? This one – a distinction that I think is very important.

Justice Geoffrey Nettle said Judge Higgins equated hating Muslims' religious beliefs with hating Muslims because of their beliefs. This was not so — many people might despise Pastor Scot's perception of Christianity, yet not dream of hating him.

"No doubt the purpose of the act is to promote religious tolerance. But the act cannot and does not purport to mandate religious tolerance," he said in his judgement.

Indeed, Judge Higgins had held that quoting the Koran to prove a negative point about Islam constituted religious vilification of Muslims – effectively arguing that the truth was not only not a defense in such cases, but was evidence of the offense having been committed.

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