Creating stronger laws to protect Victorians from hate conduct

The Racial and Religious Tolerance Act (RRTA) only applies to racial and religious vilification

This is despite the fact that many other groups in our community can be victims of hate, such as LGBTIQ+ people, women and people with disabilities.

Nearly 60% of LGBTIQ young people have experienced verbal abuse because of their sexuality or gender identity. About half of Australia’s young women have experienced online abuse. The Royal Commission in Violence, Abuse, Neglect and Exploitation of People with Disability has highlighted unacceptable rates of verbal abuse and offensive language in public places.

Hate conduct can have profound negative impacts on individuals and communities

Hate conduct such as hate speech and online abuse, impacts people’s dignity, sense of self-worth and belonging in a community. It diminishes an individual’s ability to fully participate and contribute to society. It can also have a broad ripple effect beyond an immediate victim, to witnesses and even perpetrators, and can incite others to perpetrate hate.

The threshold for vilification is too high and is difficult to prove

A major problem of the current incitement test in the RRTA is that it focuses on the impact of a witness to hate conduct, not on the victim who experiences the harm.

There have been few complaints and prosecutions under the RRTA

Since 2002, there have only been two successful cases of vilification before VCAT under the RRTA (Khalil v Sturgess [2005]; Ordo Templi Orientis v Legg [2007]) and three prosecutions of serious vilification by Victoria Police, only one of which was successful (Cottrell v Ross [2019]).

The RRTA does not allow for representative complaints without the need to name individual complainants

The fear of victimisation and retaliation can prevent people from making a complaint who might otherwise feel safe to be represented anonymously.

The RRTA does not empower the Commission to identify respondents

In some instances of alleged vilification – for example, instances where the conduct occurs in a public place or online – a complainant may not know the name of the alleged offender.

The Commission does not currently have power to address underlying causes and drive system change

The RRTA places a significant burden on individual complainants who have experienced vilification, rather than recognising and addressing the harm to the broader community.

We need to shift the burden of responding to hate from individual victims and instead create a system that can drive change. As the regulator of the RRTA, the Commission is well positioned to play a greater role.

Incorporate Victoria’s vilification laws into the Equal Opportunity Act to make them more accessible

Victorians know and use the Equal Opportunity Act, so incorporating vilification protections into it would support better awareness and use of hate laws in Victoria and ensure a consistent approach to preventing and responding to discrimination, sexual harassment and vilification.

Expand the scope of anti-vilification protections to include other attributes

Including protections for LGBTIQ people, women and people with disabilities would reflect community expectations that there are many people within the community that must be protected from hate conduct.

Simplify the threshold for vilification from conduct that incites to conduct that expresses or is reasonably likely to incite

This approach would ensure that the law captures conduct that expresses strong negative emotions because of a person’s identity and that is capable of incitement, without requiring proof of incitement. The focus of this test is on the respondent’s conduct rather than that of a third party or audience.

This test would ensure effective redress for individual and systemic harms.

Introduce a new complementary harm-based civil provision

This test would be an objective assessment of the harm caused and experienced from the perspective of the target, rather than having to provide evidence that a third party was motivated to act in a hateful way.

Introduce a single more accessible serious vilification test in the Crimes Act

This would improve visibility of hate as a crime and streamline Victoria Police enforcement.

The dispute resolution framework should be strengthened

The Commission needs stronger powers to receive and resolve complaints of vilification, particularly in the age of anonymous online abuse.

At present, we can only accept complaints with named respondents. However, with appropriate powers, the Commission could compel the provision of documents to help identify potential perpetrators who hide behind online anonymity and engage them in our voluntary dispute resolution process.

Law reform should enable representative complaints without the need to name individual complainants. This would encourage reporting, alleviate the very real fear of victimisation and improve the redress available for groups who experience hate.

The burden needs to be shifted

The current provisions under the RRTA place a significant burden on individual complainants who have experienced vilification. Giving the Commission a greater role in investigating the underlying causes of hate would help shift the burden away from individuals and help drive systemic change.

Under the EOA, all duty holders have an obligation to try to prevent discrimination, not just deal with complaints when they arise. A similar positive obligation on employers and others to try to prevent hate before it occurs should be included and enforceable in the new anti-vilification framework.

The Commission is working hard to advocate for stronger legal protections to protect Victorians from hate conduct.

We have made submissions to a range of inquiries and reviews, including the Freedom of Speech of Inquiry of the Parliamentary Joint Committee on Human Rights, the Review of Identity Motivated Hate Crime (Eames Review), and the Australian Government’s consultation on proposed amendments to the Racial Discrimination Act.

The Commission’s submission to the Parliamentary inquiry into anti-vilification protections was informed by interviews and community consultations with multicultural and multifaith, LGBTIQ, gender equality, disability and First Nations communities. Then-Commissioner Kristen Hilton appeared at the public hearing, where the Commission provided the Committee with a supplementary submission addressing their questions.

The Commission has developed a Community Reporting Tool using human-centred design principles, enabling community members to confidentially report experiences of discrimination and vilification to the Commission. The tool aims to increase accessibility to the Commission, particularly for African and Muslim communities. The stories and information we receive through the Community Reporting Tool informs our advocacy efforts. For example, throughout the pandemic, we have seen a worrying increase in reports of racism towards people of Asian backgrounds. Use of our Community Reporting Tool has more than doubled since early March 2020, with the majority of reports regarding racial vilification. We used this data to engage with the government on the need for strategies to tackle racism in the community.

As part of the Multicultural and Multifaith Engagement Action Plan 2018–22, the Commission developed and implemented Reducing Racism, a project designed to tackle hate experienced by African and Muslim communities. The Commission worked closely with these communities to support them to exercise their rights by delivering co-designed education programs and resources to ensure that people could both understand and exercise their rights and establishing an African Ambassadors program. Between 2013 and 2022 the Commission provided 138 education and information sessions on racial and religious vilification under the RRTA, attended by nearly 4000 people.

In 2019, the Commission also hosted consultations with faith leaders in collaboration with the Australian Human Rights Commission to better understand their experiences of serious harm including vilification, and the barriers in relation to the RRTA.

On 2 September 2021, the Victorian Government responded to the Victorian Parliament’s Legal and Social Issues Committee report on its inquiry into anti-vilification protections in Victoria.

Read the Victorian Government’s response to the parliamentary inquiry into anti-vilification protections

We are pleased to note the government’s in-principle support for the committee’s recommendations which, when implemented, will strengthen Victoria’s ability to prevent and respond to hate directed against people in our community. The Victorian Government’s response makes clear that the experiences shared by the community through the inquiry make a real difference, acknowledging the prevalence of vilification in Victoria and the serious harms that result from such behaviour.

We look forward to working with the government to implement the committee’s recommendations and will continue to share with the community how they can participate in future consultations.

Prohibition on Nazi swastika

One step that has already been taken by the Victorian Government in response to the inquiry is criminalising the public display of the Nazi symbol (the Hakenkreuz, often referred to as the Nazi swastika) in Victoria, in recognition of its role in inciting antisemitism and hate.  The new law passed in June 2022 and makes it a criminal offence for a person to intentionally display the Nazi swastika in public. Anyone who intentionally displays the symbol will face penalties of up to $22,000, 12 months imprisonment or both.

Importantly, the new law recognises the cultural and historical significance of the swastika for the Buddhist, Hindu, Jain and other faith communities as an ancient and sacred symbol of peace, purity, love and good fortune. Where the swastika is displayed for genuine cultural or religious purposes, this will not be unlawful under the new law. The ban will also be supported by a community education campaign aimed at raising awareness of the origins of the religious and cultural swastika and its importance to the Buddhist, Hindu and Jain communities, as well as its distinction from the Nazi symbol.

There will also be other exceptions to the new law, including where the Nazi swastika symbol is used for a genuine academic, artistic, religious or scientific purpose, making or publishing a fair and accurate report of any event or matter of public interest, in opposition to fascism, Nazism, neo-Nazism or other related ideologies.

The new law commences 22 December 2022. For more information please see here: https://www.premier.vic.gov.au/nazi-hate-symbols-now-banned-victoria