Discrimination and human rights is a complex area. Separate Commonwealth and state legislation sets out people’s rights and duties, and government agencies administer the law that protects people’s human rights and work rights in Victoria.

Contributors

Ella Kucharova

Australian Human Rights Commission

Emily Minter

Victorian Equal Opportunity and Human Rights Commission

Racial and religious vilification under the Racial and Religious Tolerance Act

Last updated

1 July 2020

Overview of racial and religious vilification

Under the Racial and Religious Tolerance Act 2001 (Vic) (‘Racial and Religious Tolerance Act’), it is un-lawful to vilify a person on the basis of their race or religion, subject to the exceptions outlined below. Disputes about racial or religious vilification are handled by the Equal Opportunity Act.

Racial vilification (s 7) is conduct that incites hatred against, or serious contempt for, or revulsion or severe ridicule of, an individual or class of people because of their race, colour, descent, ancestry, nationality or national origin, ethnicity or ethnic origin. 

Religious vilification (s 8) is conduct that incites hatred against, or serious contempt for, or revulsion or severe ridicule of, an individual or class of people because of their religious beliefs or activities, or because they hold or do not hold a religious belief or view, or engage in or do not engage in (or refuse to engage in) a lawful religious activity.

Conduct that is covered by the Racial and Religious Tolerance Act can occur in or outside Victoria and can be a single instance or a number of occasions over time.

Unlike discrimination laws, the Racial and Religious Tolerance Act is not limited to conduct in specific areas of public life (e.g. work, school, or in the provision of goods and services). Rather, it applies to any vilifying conduct that happens in public. For example, vilifying conduct in the street, on social media, at a community event or in the media is covered by the Racial and Religious Tolerance Act.

A person’s motive for engaging in vilifying conduct is irrelevant under the Racial and Religious Tolerance Act. It is irrelevant whether there are multiple reasons for the conduct, provided that race or religious belief or activity is a substantial ground for the conduct (s 9). 

The Racial and Religious Tolerance Act also:

  • provides protection from victimisation for:
    • making complaints or allegations of racial or religious vilification,
    • bringing proceedings under the Racial and Religious Tolerance Act,
    • giving evidence, information or a document in relation to proceedings under the Racial and Religious Tolerance Act,
    • attending a compulsory conference or mediation at VCAT under the Racial and Religious Tolerance Act, or
    • other actions done under the Racial and Religious Tolerance Act (ss 13–14);
  • prohibits a person authorising or assisting racial or religious vilification (s 15);
  • attributes vicarious liability to employers and principals for conduct in breach of the Racial and Religious Tolerance Act unless they can show they took reasonable precautions to prevent it (ss 17–18);
  • provides criminal sanctions for serious racial and religious vilification offences involving intentional conduct (ss 24–25). Serious racial and religious vilifications can be investigated by Victoria Police.

The dispute resolution procedures in the Equal Opportunity Act apply to complaints under the Racial and Religious Tolerance Act. People wishing to enquire about or make a complaint under the Racial and Religious Tolerance Act should contact VEOHRC (see ‘Contacts’ at the end of this chapter).

Exceptions in the Racial and Religious Tolerance Act

The Racial and Religious Tolerance Act (ss 11–12) sets out a number of circumstances (i.e. exceptions) in which conduct does not amount to vilification. These exceptions are designed to strike a balance between freedom of expression and freedom from racial and religious vilification. The exceptions apply to private conduct and to certain public conduct.

The exceptions to public conduct include conduct engaged in reasonably and in good faith in the performance, exhibition or distribution of an artistic work, in making or publishing a fair and accurate report of any event or matter of public interest, or in the course of any statement, publication, discussion 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 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 the Director 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 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’.

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