Victorian Anti-Vilification Legislation

In September 2024, the Victorian Government released proposed changes to anti-vilification laws in Victoria. These changes would significantly broaden the reach of anti-vilification legislation and criminalise a wider range of acts.

The proposed legislation would repeal the current Racial and Religious Tolerance Act 2001, with criminal sections moved to the Crimes Act 1958 and civil sections moved to the Equal Opportunity Act 2010.

Rather than protecting and promoting equal participation in Victorian society, we fear that these proposals risk stifling free speech and significantly limiting free religious expression and activity in Victoria.

Our Response

In October 2024, Freedom for Faith helped to coordinate a multi-faith submission outlining the concerns of faith groups. You can read our full submission here.

The Proposed Changes:

Extending Categories

The categories that are protected would be extended from just race, and religious belief or activity, to include disability, gender identity, sex, sex characteristics and sexual orientation.

Criminal Provisions

New provisions

The criminal offenses are split so that the state does not need to prove both incitement and threatening, but either one. This creates two offenses:

• Incite hatred against, serious contempt for, revulsion towards or severe ridicule
• Threaten physical harm or property damage

Bar lowered to “reckless”

The bar is lowered from proving intent, to whether someone was reckless as to whether they would incite or threaten. Recklessness requires that the person “believes their conduct will probably” incite or threaten.

Extraterritorial reach

These offenses would apply to online content and “when a person outside of Victoria vilifies a person in Victoria, the person making the threat can be investigated and prosecuted for the offence.”

Political purpose defence

A new exemption is recommended “for conduct engaged in for a genuine political purpose”. “This defence would protect freedom of expression and political communication. It would allow all Victorians to engage in legitimate political debate. “. This only to the incitement provision.

Civil Provisions

As with the criminal provisions, the civil provisions are split into two types of offense:

• Incitement-based provision
• Harm-based provision

The incitement provision retains the existing language of incitement, but lowers it to include conduct that is “likely to incite hatred against, serious contempt for, revulsion towards, or severe ridicule”.

Harm-base provision

The harm-based provision seeks to “restrict people from saying or doing things in public that harms others “. However, the definition of harm is defined entirely subjectively, so that it includes “conduct that is reasonably likely to be considered harmful from the perspective of a person with that attribute.”

The example that is provided is “Saying hateful things about a person’s gender identity at a public gathering.”

These provisions are limited to “public conduct”, however the definition of “public” is expanded to include social media, and the paper adds: “Conduct might be considered public even if it occurs on private property or at a place not open to the general public. This might include public conduct that occurs in a school or workplace.”

Exemptions

Existing exemptions exist for religious purposes that are done “reasonably and in good faith”. The paper proposes further qualifying that to include “for a genuine purpose in the public interest”.

“The added requirement of ‘genuine’ means that a person would only be able to rely on the exception where their purpose for engaging in the conduct was truly in the public interest.”

The current definition of a religious purpose “includes, but is not limited to, conveying or teaching a religion or proselytising”. The paper proposes expanding the list to “worship, observance, practice and teaching (for example, proselytising)” to match the Charter of Human Rights and Responsibilities.

Problems with the Bill

The “harms-based” provision is extremely dangerous. This introduces a completely subjective test where a person or group gets to decide if they have been harmed by language that is “hateful”

The definition of “public” would cover all social media posts, and most likely sermons and group teaching.

The religious exemption, while helpfully expanded in definition, is already limited by the use of “reasonable”, and is further limited by the test of being “genuine” and “truly in the public interest”.

This gives unprecedented authority over religious speech, including sermons.