His lawyer will argue the racial vilification conviction is at odds with Victoria’s charter of human rights

This article is more than 1 year old

This article is more than 1 year old

The far-right extremist Blair Cottrell has made a bid for a Victoria supreme court appeal over his racial vilification conviction for a mock beheading video.

Cottrell, Neil Erikson and a third man were convicted and fined $2,000 in the Victorian magistrates court in September 2017 over the video protesting against the building approval of a mosque in Bendigo.

This week, a lawyer for Cottrell sought permission from the county court to take the case to a higher court for appeal, arguing that the conviction is at odds with Victoria’s charter of human rights and responsibilities.

The charter enshrines rights to freedom of expression and freedom of thought, conscience, religion and belief.

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If the judge, Lisa Hannan, approves the bid for appeal, it could become a test case for how the state’s anti-vilification laws interact with the charter. The judge is due to hand down her decision on 16 July.

The Deakin University law associate professor Theo Alexander doesn’t believe Cottrell’s legal team is likely to successfully use the charter against the 2001 Racial and Religious Tolerance Act.

“I’m really not sure how it’s going to be useful. It’s not a knockout blow so to speak,” he told Guardian Australia.

Alexander said there were some parallels on freedom of expression between Cottrell’s criminal case and the ex-Wallaby Israel Folau’s civil case against Rugby Australia.

“There are similar fundamental arguments at play regarding important rights that individuals have within the community, those rights will come into conflict at times and … courts are required to resolve in favour of one right or the other,” he said.

He noted there was no absolute right to freedom of expression in Australia, unlike the US and its bill of rights. Victoria’s charter of human rights is much more diluted, Alexander said.

Meanwhile, an arrest warrant remains current for Erikson, 34, in New South Wales more than a year after he allegedly stormed the Gosford Anglican church on the state’s central coast.

He failed to appear in the Gosford local court in September over charges of using threats to prevent a clergyman discharging duties, and disturbing religious worship. NSW police said inquiries were continuing.

The Anglican priest Rod Bower said he was disappointed there had been little progress on the case and the incident still filled him with fear.

“I have a high level of anxiety when I lead worship – the threat is ever present,” Bower told Guardian Australia.

“I think if the courts were able to deal with this a little more productively it would give places of worship a bit more confidence.”

In May, Erikson allegedly interrupted a service at Melbourne’s Metropolitan Community church, which has lesbian, gay, bisexual, trans and/or intersex Christian followers.

The Reverend Sue Townsend said Erikson was involved in a scuffle when members of the congregation tried to escort him to the exit after he said it was “not a real church” because it married “sodomites”.

Police have interviewed Erikson about the incident.