Victorian Vilification Legislation

The Victorian government has introduced the Justice Legislation Amendment (Anti-Vilification and Social Cohesion) Bill 2024 to replace the Racial and Religious Tolerance Act 2000 (RRT Act) with a much broader set of bans on speech and conduct which people experience as hateful or contemptuous on the basis of their race or religion or sex, sexual orientation, gender identity, disability or sex characteristics.

(You can read our submission to the earlier Bill inquiry here)

Chilling effect on speech

The most concerning part of the new Bill is that it creates a new civil liability where Person A engages in conduct which is reasonably likely to be hateful, seriously contemptuous, reviling or seriously ridiculing of a Person or Group C based on C’s race or religion or sex, sexual orientation, gender identity, disability or sex characteristics. (This is called harms-based vilification). There is no concern about whether a Person B would be incited by the conduct to hate etc Person C.

How is it to be determined whether Person A’s conduct is reasonably likely to be “hateful, seriously contemptuous, reviling or seriously ridiculing” if the effect on a third party is irrelevant? The government’s consultation states that “Hate speech or conduct would amount to vilification if it would be harmful from the perspective of a targeted group. For example, if a person believes they were targeted because of their sexual orientation, they would need to demonstrate that a person from the same targeted group would “objectively” consider the conduct to be hateful, seriously contemptuous, reviling or severely ridiculing.”

As the policy Consultation Paper for the proposal states, the Bill requires assessing whether the conduct is hateful, seriously contemptuous, reviling or severely ridiculing, or whether it is merely offensive (and therefore would not be considered vilification). As the Paper goes on to say: This could be a difficult distinction to make and would involve an assessment of community standards and the context in which the conduct occurred. This might include the historical and socio-economic positions of the parties involved, and any power imbalances among them.

The Bill does not define when conduct is hateful. It does not answer the “difficult question” of how to distinguish when conduct is offensive or insulting or just disagreement, and when it is hateful or seriously contemptuous. (e.g. “the Koran is false”, “Jesus did not rise from the dead”, “religious people ae weak and need an imaginary friend” – is that disagreement or hateful? “Transwomen are biological men who should not have access to women’s spaces” – is that disagreement or offensive or hateful?).

The upshot is that anyone who wants to say anything about race or religion or sex, sexual orientation, gender identity, disability or sex characteristics which might possibly be taken as offensive by a person with that characteristic is at risk of a complaint to the Victorian Human Rights Commission or an action in VCAT by a person with that characteristic (or their representative activist group). The person who makes the comment will be having to argue that the comment could not reasonably be viewed as hateful or reviling or seriously contemptuous by a person with the characteristic – instead they will have to argue that the comment was at worst offensive.

In short, this will chill free speech because speakers can never be confident that some hearer with one of the listed characteristics may not perceive the speech as “hateful” of them. For such prohibitions, the risk is that “hate speech” in practice means speech the hearer hates.

Limited religious protections

The RRT Act provides that a religious purpose includes, but is not limited to, conveying or teaching a religion or proselytising.

The Parliamentary Committee recommended that the existing religious purposes exception in the RRT Act should be made more limited. The government accepted that recommendation by changing the definition of religious purpose to: a religious purpose would include, but not be limited to, worship, observance, practice and teaching, based on the language in Charter of Rights and Responsibilities Act 2006 (which is a limited version of Article 18 of the ICCPR).

The issue with the proposed change is that comments by a person of faith in a shop, a taxi or online chat stating a religious belief outside an explicit teaching context are no longer clearly exempt as they are under the RRT Act. E.g. a statement by a Christian or Muslim that their religious belief is that sex outside marriage is sinful is protected currently under the RRT Act because it is conveying a religion (a religious belief) but not teaching.

Under the proposed change it is not clear that the comment in a shop, a taxi or online chat would be exempt as worship, observance, practice and teaching of the religion. The current exemption “conveying a religion” is broader than “teaching” a religion.

We encourage religious groups to write to MPs expressing their concern that the change to the definition of religious purpose be declared not to have this effect and that it still covers a person of faith stating a religious belief outside an explicit teaching context e.g. in a shop, a taxi or online chat stating a religious belief outside an explicit teaching context