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‘All Victorians should live free from hate’ – our statement on reforming anti-vilification protections

In February this year, the Victorian Equal Opportunity and Human Rights Commission made a submission to the parliamentary inquiry into Victoria’s anti-vilification protections. Today, we spoke directly to the Victorian Parliament’s Legal and Social Issues Committee as part of the inquiry’s public hearings. Here is the opening statement from Victorian Equal Opportunity and Human Rights Commissioner Kristen Hilton.

27 May 2020

Earlier this year, in our submission to the parliamentary inquiry into anti-vilification protections, we called for reforms to the Racial and Religious Tolerance Act (RRTA), to better ensure that all Victorians can live free from hate.

Since then, the COVID-19 pandemic has brought into sharp relief the importance of the work of this Committee and made it even more urgent.

Throughout the pandemic, we have seen a worrying increase in reports of racism through both our enquiries and complaints functions. In April, we received daily enquiries about racial vilification, eight times more than we received in the same period last year. Use of our online Community Reporting Tool has more than doubled since early March 2020, with the majority of reports regarding racial vilification.

People are being abused in public, online, and while at work and in trying to get to work.

One person reported feeling unsafe at work because of graffiti near their office that says: ‘shame on you China, go home yellow dog.’

We heard from a doctor at one of Melbourne’s busiest hospitals who was abused so aggressively while getting the train to work that he no longer feels safe taking public transport.

These incidents are not a new phenomenon, but they are part of the pattern of ongoing and persistent hate, ignorance and fear in parts of our community including antisemitic and Islamophobic abuse of school children, the Nazi flag flying over a house in regional Victoria and the ongoing racial abuse of African Victorians.

These concerning increases support the Commission’s view that systemic reform is needed to strengthen the protections against racism, create a system that can hold perpetrators to account, and provide hope for victims that enduring vilification isn’t just part of life.

Firstly, we need to make the law focus on the harm caused.

The Commission has regulated the RRTA since its inception and we know that the Act is not working effectively to prevent or respond to hate conduct. To date, there have been only two successful cases before the Victorian Civil and Administrative Tribunal and one successful prosecution of serious vilification.

One of the factors that has made it so difficult for people to run successful vilification cases is the high legal threshold people must meet to show that vilification has occurred.

We recommend the threshold in the RRTA civil test in sections 7 and 8 be changed from prohibiting conduct that ‘incites’ hate or strong feelings to conduct that ‘expresses or is reasonably likely to incite’ hate or strong feelings.

A major problem of the current incitement test is that it requires consideration of the impact on a witness to hate conduct, not on the victim who experiences the harm. We believe this is the wrong focus. Let me give you an example: we heard of the case in which a man complained that his neighbours were regularly vilifying his family by yelling racist abuse. This caused anguish and distress to this man; however, without a witness who is incited by this conduct, the RRTA cannot assist this family.

The best remedy to this is the introduction of a separate test for vilification that focuses on whether the person who is the target of the speech or conduct is harmed by it. 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. This harm-based test would enable the family being vilified by their neighbours to be protected by the law and make a complaint.

The accompanying criminal offences in the RRTA also require reform.

While it is appropriate that criminal offences should only apply to the most serious conduct, the current criminal test is too high. Sections 24 and 25 of the RRTA only prohibit the offender intentionally engaging in conduct that they know is likely to incite hatred and to threaten physical harm towards other persons. The test should be simplified and revised to prohibit intentional or reckless hate conduct and it should prohibit threats to harm or incitement, rather than requiring both to be unlawful.

The serious vilification offences also need to be incorporated into the Crimes Act. This would improve visibility of hate as a crime and streamline Victoria Police enforcement. In our consultations, Victoria Police indicated that the location of the serious vilification offences in the RRTA is a barrier to enforcement. Moving the offense to the Crimes Act would make it clear to police that serious vilification is a crime.

As part of a broader suite of reforms, consideration should also be given to making it a crime to publicly display symbols, images and materials that are designed to incite or spread hate. This can include, but should not be limited to, Nazi symbols.

We also know that there are many other groups who are victims of hate who need protection.

In particular, LGBTIQ people, women and people living with disability. Almost all LGBTIQ young people have experienced abuse because of their identity. Studies show about half of Australia’s young women have experienced online abuse. People with a disability continue to experience verbal abuse and offensive language in public places. These groups are not currently protected under vilification laws in Victoria, despite extensive evidence of harm.

We recommend expanding the scope of anti-vilification protections to include sexual orientation, gender identity, sex characteristics, gender, disability and personal association. This would acknowledge the profound harm resulting from all these forms of hate, as well as providing more effective redress for people who experience high rates of compounding intersectional forms of hate, such as Muslim and African women.

We know that vilification also often occurs alongside a range of other unlawful conduct including discrimination.

That is why we also recommend that the protections in the RRTA be incorporated into the Equal Opportunity Act. Including vilification protections in the EOA would support better awareness and use of hate laws in Victoria and would ensure a consistent approach to preventing and responding to discrimination, sexual harassment and vilification.

In order for these reforms to be effective, we must strengthen the Commission’s role.

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, we are well positioned to play a greater role.

First, reform should create a positive obligation on employers and others to try to prevent hate before it occurs, much as the Equal Opportunity Act does in order to prevent discrimination. The Commission could enforce the positive duty through an investigations function, again similar to the one provided in the EOA. To ensure this function is effective the Commission’s powers following an investigation should be reinstated to enable the Commission to issue compliance notices and enter into enforceable undertakings.

Second, the Commission needs stronger powers to receive and resolve complaints of vilification, particularly in the age of anonymous online abuse. 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. For example, we received a complaint about a Facebook page vilifying Chinese people; however, the owner of the Facebook page could not be identified so we could not accept the complaint. If we had the power to direct Facebook to provide us with the email address for the owner of the page, we could accept the complaint and offer dispute resolution.

Finally, law reform should enable representative complaints without naming individual complainants. The Commission receives a significant number of anonymous enquiries in relation to vilification. For example, we heard about an employee who was concerned about a post on their employer’s Facebook page which vilified Muslim people, however, they were not prepared to complain if they couldn’t do so anonymously. If representative complaints were possible under the RRTA, an organisation such as the Islamic Council of Victoria could complain on behalf of the Muslim community and seek that the post be removed. This would encourage reporting, alleviate the very real fear of victimisation and improve the redress available for groups who experience hate.

Importantly, any legal measures must be accompanied by a strong policy response that tackles the underlying assumptions and attitudes that breed exclusion and prejudice.

In order to do this, we must empower target communities, address the barriers to reporting, promote and celebrate diversity, improve the response to hate, and strengthen research, data and reporting.

Supporting reforms to Victoria’s anti-vilification protections with education and a public awareness campaign is vital for people to understand what hate is, its impact and what protections and pathways are available to seek redress.

Tailored training will also be critical for Victoria Police members, to help them understand the reforms, identify hate conduct and address it effectively.

Underpinning these proposed reforms is the need for ongoing research, data collection and analysis to understand the prevalence and impact of hate. Agencies will need to work together to collect and share relevant data to inform their decisions and initiatives.

All Victorians should live free from hate.

Hate conduct 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.

Two decades ago, the Victorian Parliament acknowledged the public benefit of a culturally diverse and cohesive society.

Today, we have the benefit of seeing how the RRTA has operated in practice, and where it falls short. The Parliament should seize this opportunity to respond proactively to the rise in hateful behaviour and to send a strong message that hate conduct is not only harmful, but against the law.

Read our submission to the parliamentary inquiry into Victoria’s anti-vilification laws

Read a short summary of our submission and recommendations

Watch our short explainer video

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Level 3, 204 Lygon Street Carlton Victoria 3053

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The Victorian Equal Opportunity and Human Rights Commission acknowledges Aboriginal and Torres Strait Islander peoples as First Australians and recognises their culture, history, diversity and deep connection to the land.

We acknowledge that the Commission is on the land of the Kulin Nation and pay our respects to Elders past and present.