The Law Handbook 2024

Chapter 11.1: Discrimination and human rights 995 or debate about any genuine academic, artistic, religious or scientific purpose, or an issue in the public interest. The meaning of ‘religious purpose’ includes ‘conveying or teaching religion or proselytising’. Certain private conduct is also exempted from the Racial and Religious Tolerance Act. Racial and religious vilification is not established if it occurred in such a way that it would be reasonable to expect that the parties’ conduct was private (that is, it could not be heard or seen by anyone else). If the parties ought to have expected that their conduct may have been seen or heard by anyone else, the private conduct exception does not apply. For further information about racial and religious vilification under the Racial and Religious Tolerance Act, contact the VEOHRC (see ‘Contacts’ at the end of this chapter). Serious racial and religious vilification The Racial and Religious Tolerance Act criminalises serious racial vilification (s 24) and serious religious vilification (s 25). These sections prohibit a person from – on the grounds of the race or religious belief or activity of another person or people – intentionally engaging in conduct that they know is likely to incite hatred, and to threaten, or incite others to threaten, physical harm on the grounds of the race or religious belief or activity of another person or people. Complaints about serious racial or religious vilification can be made to Victoria Police. A prosecution for the offence of serious racial or religious vilification cannot be started without the written consent of theDirector of Public Prosecutions (ss 24(4), 25(4) Racial and Religious Tolerance Act). In determining whether a person has committed serious racial or religious vilification, it is irrelevant whether the person made an incorrect assumption about the race, religious belief or activity of another person or group at the time of the offence (s 26). There has only been one successful prosecution of serious vilification under the Racial and Religious Tolerance Act ( Cottrell v Ross [2019] VCC 2142). In this case, the County Court of Victoria sent a clear message about the seriousness of the religious vilification, stating it is ‘antithetical to the fundamental principles of equality, democratic pluralism, respect and dignity, which lie at the heart of the protection of human rights’. Disputes about discrimination in Victoria Taking a dispute to the VEOHRC Anyone can bring a complaint about discrimination, sexual harassment or victimisation under the Equal Opportunity Act, or about racial or religious vilification under the Racial and Religious Tolerance Act, to the VEOHRC for dispute resolution. This is a free, impartial and flexible process. Details about how to make a complaint are available from the VEOHRC’s website (www. humanrightscommission.vic.gov.au) . A person may bring a dispute in their own name, on behalf of a child, or on behalf of a person who is unable to bring a dispute themselves because of a disability. A person can also bring a representative complaint on behalf of others in certain circumstances. A person can bring a dispute on behalf of themselves and another person(s) if the VEOHRC is satisfied that (s 114): • each person is entitled to bring a dispute; • each person has consented to the dispute being brought to the body on their behalf; and • the alleged contravention arises out of the same conduct (if the dispute is brought on behalf of more than one person). In addition to satisfying the three points above, a representative body may bring a dispute to the VEOHRC on behalf of a person(s) if the rep­ resentative body has sufficient interest in the dispute (s 114). This requirement is satisfied if the alleged unlawful conduct is a matter of genuine concern to the representative body because of the way conduct of that nature adversely affects the interests of the people it represents (or has the potential to do so). All people who are a party to a dispute brought by a representative body must be named (s 114). For all complaints under the Equal Opportunity Act and the Racial and Religious Tolerance Act, the VEOHRC may decline to provide, or decline to continue to provide, dispute resolution if: • the alleged contravention occurred more than 12 months before the dispute was brought (s 116); • the matter has been adequately dealt with by a court or tribunal;