Racial and religious vilification under the Racial and Religious Tolerance Act
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Under the RRT Act, it is unlawful to vilify a person on the basis of their race or religion, subject to the exceptions outlined below. The dispute resolution process in the EO Act applies to both discrimination and vilification complaints.
‘Racial vilification’ (RRT Act 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’ (RRT Act 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 RRT Act can occur in or outside Victoria and can be a single instance or a number of occasions over time.
Unlike discrimination laws, the RRT 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 RRT Act.
A person’s motive for engaging in vilifying conduct is irrelevant under the RRT 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 (RRT Act s 9).
The RRT Act also:
provides protection from victimisation for:
making complaints or allegations of racial or religious vilification,
bringing proceedings under the RRT Act,
giving evidence, information or a document in relation to proceedings under the RRT Act, attending a compulsory conference or mediation at VCAT under the RRT Act, or
other actions done under the RRT Act (ss 13–14);
prohibits a person authorising or assisting racial or religious vilification (RRT Act s 15);
attributes vicarious liability to employers and principals for conduct in breach of the RRT Act unless they can show they took reasonable precautions to prevent it (RRT Act ss 17–18); and
provides criminal sanctions for serious racial and religious vilification offences involving intentional conduct (RRT Act ss 24–25). Serious racial and religious vilifications can be investigated by Victoria Police.
People wishing to enquire about or make a complaint under the RRT Act should contact the VEOHRC (see ‘Contacts’ at the end of this chapter).
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The RRT 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 RRT 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 RRT Act, contact the VEOHRC (see ‘Contacts’ at the end of this chapter).
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The RRT 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 (RRT Act ss 24(4), 25(4)).
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 (RRT Act s 26).
Racial and religious vilification under the Racial and Religious Tolerance Act
Chapter: 11.1: Discrimination and human rights
Contributor: Kristina Hoel, Legal and Policy Officer, Victorian Equal Opportunity and Human Rights Commission; Melissa De Abreu, Senior Lawyer, Australian Human Rights Commission
Current as of: 1 September 2024
Law Handbook Page: 902
Next Section: Disputes about discrimination in Victoria
