Racial and religious vilification

Contributed by The Victorian Equal Opportunity and Human Rights Commission and current to 28 June 2019

The Racial and Religious Tolerance Act 2001 (Vic) (RRTA) makes racial and religious vilification unlawful in Victoria.

The RRTA commenced operation on 1 January 2002. Until then, Victoria and the Northern Territory were the only Australian states and territories without legislation prohibiting racial vilification.(1)

Under section 7 and section 8 of the RRTA, racial and religious vilification is the incitement of hatred against, serious contempt for, or revulsion or severe ridicule of a person or class of persons on the grounds of their race or religious belief or activity.

The RRTA also criminalises serious racial and religious vilification in section 24 and section 25.

Section 18C of the federal Racial Discrimination Act 1975 (Cth) (Racial Discrimination Act) prohibits racial hatred, rather than racial vilification. It makes unlawful acts that are reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people because of their race, colour or national or ethnic origin. The Racial Discrimination Act does not criminalise racial hatred.(2) Complaints under the Racial Discrimination Act can be made to the Australian Human Rights Commission.

Tests for racial and religious vilification differ between jurisdictions, but there are many common principles. Legal protections are also founded in Australia's obligations in relation to racial and religious hatred under international conventions including the International Covenant on Civil and Political Rights and the International Convention on the Elimination of All Forms of Racial Discrimination .

Unlike discrimination laws, the RRTA is not limited to conduct in specific areas of public life, such as at work, at school, or in the provision of goods and services. Rather, it applies to any vilifying conduct that happens in public. Vilifying conduct in the street, at a community event or in the media, for instance, is covered by the RRTA.

This chapter discusses the application of the RRTA and other relevant anti-vilification laws. It does not consider the intersection between anti-discrimination laws and behaviour constituting racial and religious vilification.

Purpose and objects of the Racial and Religious Tolerance Act

The purposes of the RRTA, outlined in section 1 are:

a) to promote racial and religious tolerance by prohibiting certain conduct involving racial or religious vilification;

b) to provide a means of redress for the victims of racial and religious vilification.

The objects of the RRTA, set out in section 4(1), are:

a) to promote the full and equal participation of every person in a society that values freedom of expression and is an open and multicultural democracy;
 
b) to maintain the right of all Victorians to engage in robust discussion of any matter of public interest or to engage in, or comment on, any form of artistic expression, discussion of religious issues or academic debate where such discussion, expression, debate or comment does not vilify or marginalise any person or class of persons;
 
c) promote dispute resolution and resolve tensions between persons who (as a result of their ignorance of the attributes of others and the effect that their conduct may have on others) vilify others on the ground of race or religious belief or activity and those who are vilified.

In Victoria, the right to freedom of expression is protected by the Charter of Human Rights and Responsibilities, which is modelled on article 19 of the International Covenant on Civil and Political Rights, as outlined in the Explanatory Memorandum (pages13-14). Section 15(2) of the Charter provides that every person has the right to freedom of expression, which includes the freedom to seek, receive and impart information and ideas of all kinds.

However, under section 15(2) of the Charter, the right may be subject to lawful restrictions if it is reasonably necessary to protect the rights and reputation of other persons, or to protect national security, public order, public health or public morality. It can only be limited if the limitation is lawful, reasonable and proportionate, as detailed at section 7(2).

The preamble to the RRTA acknowledges 'the importance of freedom of expression, the democratic value of the equal participation of all citizens in society, and the desire of Parliament to support racial and religious tolerance'. It also highlights that racial and religious vilification diminishes dignity and sense of self-worth and belonging to the community. Vilification also reduces the ability for people to contribute to, or fully participate in, all social, political, economic and cultural aspects of society as equals. The RRTA attempts to balance the right to freedom of expression with racial and religious tolerance.

To this end, the RRTA contains provisions that:

  • make racial vilification (section 7) and religious vilification (section 8) unlawful
  • make conduct that is engaged in 'reasonably and in good faith' in an artistic performance, in the public interest, in fair and accurate reporting, or for a genuine academic, artistic, religious or scientific purpose (section 11), and private conduct (section 12) exempt from the definition of unlawful vilification.

Like the Equal Opportunity Act does for discrimination, the RRTA also:

  • makes victimisation of a person who makes a complaint of racial or religious vilification or takes specified action under the RRTA unlawful (section 13)
  • makes authorising or assisting vilification or victimisation unlawful (section 15)
  • makes an employer or principal vicariously liable for the conduct of an employee or agent who breaches the RRTA (subject to an exception that the employer or principal took 'reasonable precautions' to prevent the breach) (section 17 and section 18)
  • provides for dispute resolution by the Victorian Equal Opportunity and Human Rights Commission (the Commission) (under the existing mechanisms for conciliation of complaints under the Equal Opportunity Act) and direct applications to the Victorian Civil and Administrative Tribunal (VCAT) (Part 3).

In addition, the RRTA provides for civil remedies for a breach of the RRTA (section 23C) and criminalises serious racial and religious vilification (section 24 and section 25).

Unlawful racial and religious vilification

The legal test for vilification under the RRTA is different from the ordinary dictionary definition of vilification - to 'speak evil of, defame, traduce'. Rather, the RRTA prohibits public conduct that incites hatred against, serious contempt for, revulsion or severe ridicule of a person or class of persons on the ground of their race or religious belief or activity.(3) The RRTA is directed at action that moves the emotions of a third party.

Section 7 of the RRTA sets out the prohibition on racial vilification:

(1) A person must not, on the ground of the race of another person or class of persons, engage in conduct that incites hatred against, serious contempt for, or revulsion or severe ridicule of, that other person or class of persons.

(2) For the purposes of subsection (1), conduct--

a) may be constituted by a single occasion or by a number of occasions over a period of time; and

b) may occur in or outside Victoria.

Note

"Engage in conduct" includes use of the internet or e-mail to publish or transmit statements or other material.

Section 7 and section 8 of the RRTA are drafted in effectively the same terms, except that section 7(1) refers to 'race' whereas section 8(1) refers to 'religious belief or activity'. Cases considering either section is helpful in interpreting the other. Cases discussing these provisions are set out below.

Meaning of 'race'

The term 'race' is broadly defined in section 3 of the RRTA to include:

a) colour;

b) descent or ancestry;

c) nationality or national origin;

d) ethnicity or ethnic origin;

e) if 2 or more distinct races are collectively referred to as a race--

(i) each of those distinct races;

(ii) that collective race.

As outlined in the Explanatory Memorandum (page 3), this definition replicates the definition of 'race' in section 4 of the Equal Opportunity Act. To date, the definition of 'race' has not been in dispute in any of the cases under the RRTA.

The definition of 'race' distinguishes 'nationality' and 'national origin'. Courts have established national origin is acquired and fixed at birth and incapable of change. Nationality is a matter of citizenship, and a person may acquire a number of different nationalities over the course of a lifetime. See [[http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCA/1996/1618.html?stem=0&synonyms=0&query=title(Australian%20Medical%20Council%20and%20Wilson%20][ Australian Medical Council v Wilson [1996] FCA 1618, 75; [1996] FCA 1618; (1996) 68 FCR 46]]; see also Miller v Mieson (1991) EOC 92-341.

Courts considering comparable legislation around the world have established 'ethnic origin' includes:

Meaning of 'religious belief or activity'

The term 'religious belief or activity' is defined in section 3 of the RRTA as:

a) holding or not holding a lawful religious belief or view;

b) engaging in, not engaging in or refusing to engage in a lawful religious activity.

As outlined in the Explanatory Memorandum (page 3), this definition replicates the definition of 'religious belief or activity' in section 4 of the Equal Opportunity Act,which also refers to a 'lawful religious belief' (that is, a religious belief or activity that is not contrary to the law).

In Fletcher v Salvation Army [2005] VCAT 1523 VCAT referred to Sir John Latham's observation in the context of section 116 of the Commonwealth Constitution:

It would be difficult, if not impossible, to devise a definition of religion which would satisfy the adherents of all the many and various religions which exist, or have existed, in the world. There are those who regard religion as consisting principally in a system of beliefs or statement of doctrine. So viewed religion may be either true or false. Others are more inclined to regard religion as prescribing a code of conduct. So viewed a religion may be good or bad. There are others who pay greater attention to religion as involving some prescribed form of ritual or religious observance. Many religious conflicts have been concerned with matters of ritual and observance. Section 116 must be regarded as operating in relation to all these aspects of religion, irrespective of varying opinions in the community as to the truth of particular religious doctrines, as to the goodness of conduct prescribed by a particular religion, or as to the propriety of any particular religious observance [9].(5)

The term 'religion' is not defined in the RRTA and no single legal definition of the term has been developed. However, in Church of the New Faith v Commissioner of Pay-Roll Tax (Vic) [[http://www9.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/1983/40.html][(1983) [1983] HCA 40; 154 CLR 120]] (Scientology Case), Chief Justice Mason and Justice Brennan held for the purposes of the law, the criteria for religion are twofold:

First, belief in a supernatural Being, Thing or Principle; and second, the acceptance of cannons of conduct in order to give effect to that belief … Those criteria may vary in their comparative importance, and there may be a different intensity of belief or of acceptance of canons of conduct among religions or among the adherents to a religion. The tenets of a religion may give primacy to one particular belief or to one particular canon of conduct. Variations in emphasis may distinguish one religion from other religions, but they are irrelevant to the determination of an individual's or a group's freedom to profess and exercise the religion of his, or their, choice [133].

Justices Wilson and Deane considered there was 'no single characteristic' that constituted a 'formularized legal criterion, whether of inclusion or exclusion, of whether a particular system of ideas and practices constitutes a religion' [17]. Their Honours considered the following factors helpful but not determinative of whether a collection of ideas or practices should be characterised as a 'religion':

One of the more important indicia of 'a religion' is that the particular collection of ideas and/or practices involves belief in the supernatural, that is to say, belief that reality extends beyond that which is capable of perception by the senses. If that be absent, it is unlikely that one has a 'religion'. Another is that the ideas relate to man's nature and place in the universe and his relation to things supernatural. A third is that the ideas are accepted by adherents as requiring or encouraging them to observe particular standards or codes of conduct or to participate in specific practices having supernatural significance. A fourth is that, however loosely knit and varying the beliefs and practices adherents may be, they constitute an identifiable group or identifiable groups. A fifth and perhaps more controversial, indicium (compare Malnak v Yogi [1979] USCA3 125; (1979) 592 F (2d) 197) is that the adherents themselves see the collection of ideas and/or practices as constituting a religion [173].

In the Scientology Case, the High Court held the beliefs, practices and observances of the Church of Scientology constituted a religion for the purposes of the Pay-Roll Tax Act 1971 (Vic).

This case has been followed in a number of other cases in relation to the interpretation of anti-discrimination and migration legislation. See, for example, OV v QZ [No 2] [2008] NSWADT 115(Anti-Discrimination Act 1977 (NSW) s 56); Dixon v Anti-discrimination Commissioner of Queensland [2004] QSC 58(Anti-Discrimination Act 1991 (Qld) s 7(1));NAVZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 13(Migration Act 1958 (Cth)).

Meaning of 'incite' and 'vilification'

The test for unlawful vilification under the RRTA focuses exclusively on the effect of conduct on the particular audience that was exposed to it - that is, whether a third party was incited to hatred or other relevant emotions. It is irrelevant what motivated the respondent to engage in the conduct or whether the conduct was offensive.

As explained by Justice of Appeal Nettle in the leading Victorian RRTA case, Catch the Fire Ministries Inc v Islamic Council of Victoria Inc [2006] VSCA 284 (Catch the Fire Ministries):

[T]he question under section 8 is not whether the conduct offends a group of persons but whether it incites hatred or other relevant emotion of or towards that group of persons. Things might well be said of a group of persons which would be deeply offensive to those persons and yet do nothing to encourage hatred or other relevant emotion of or towards those persons [67].

The court accepted the word 'incites' should be interpreted in accordance with its plain and ordinary meaning - to urge, spur on, stir up, animate or stimulate (Nettle JA [14], Neave JA [159]).

The court also confirmed the threshold for contravening the RRTA is high - the alleged conduct must incite 'extreme responses' [34], [173]. Conduct that is merely critical, offensive or insulting will not amount to unlawful vilification.

In Fletcher v Salvation Army [2005] VCAT 1523 VCAT interpreted the word 'incites' to include conduct that 'inflames' or 'sets alight' [5].(6) It noted:

The key word is 'incites'. In its context, this does not mean 'causes'. Rather it carries the connotation of 'inflame' or 'set alight'. The section is not concerned with conduct that provokes thought; it is directed at conduct that is likely to generate strong and negative passions in the ordinary person. An example of such passions would be where persons are so moved that violence might result.
 
It is clear the test to be applied is an objective one. The outcome does not depend upon the reaction of the person making the complaint. Nor does it depend upon whether the conduct was intended to incited hatred [5]-[6].

Assessing conduct 'as a whole'

To determine whether conduct 'incites' for the purposes of the RRTA, the conduct must be assessed 'as a whole'. Catch the Fire Ministries centred around statements made by a pastor about Muslim people, their beliefs and practices. Justice of Appeal Nettle found it was relevant to consider whether the pastor's encouragement to his audience to love and to 'witness to' Muslims would have prevented the seminar as a whole from inciting hatred by non-Muslims towards Muslims. His Honour stated the correct test was whether the seminar or statements 'as a whole' incited hatred of Muslims based on their religious beliefs [79]. Justice Neave also considered the seminar audience was likely to be affected by the overall impression created by the presentation, rather than having the opportunity to undertake a detailed textual analysis' of it [191]-[192]. Justice Ashley agreed the meaning of a publication (including orally) should be determined by 'consideration of its entirety rather than by discrete examination of its component parts' [132].

The balance and accuracy of statements

In Catch the Fire Ministries, the majority of the Supreme Court of Appeal found the balance and accuracy of statements does not determine whether those statements were likely to incite hatred or other relevant emotions.(7) Justice Nettle explained:

Statements about the religious beliefs of a group of persons could be completely false and utterly unbalanced and yet do nothing to incite hatred of those who adhere to those beliefs. As the same time, statements about the religious beliefs of a group of persons could be wholly true and completely balanced and yet be almost certain to incite hatred of the group because of those beliefs. In any event, who is to say what is accurate or balanced about religious beliefs? [36]

In Australian Macedonian Advisory Council Inc v LIVV Pty Ltd t/a Australian Macedonian Weekly [2011] VCAT 1647 (Australian Macedonian Advisory Council) VCAT found it 'is not for this Tribunal to determine whether the acts complained of in the article are an accurate recounting of history; the truth or otherwise of what might be seen as extreme allegations is of little relevance' [63].

The relevant audience

In determining whether conduct 'incites' hatred or other relevant emotions for the purposes of the RRTA, the nature of the relevant audience must be considered [45].(8)

Justice Nettle observed in Catch the Fire Ministries that:

Evidently, there can be no incitement in the absence of an audience. It is not a contravention of s 8 to utter extortions to religious hatred in the isolation of an empty room. If conduct is to incite a reaction, it must reach the mind of the audience … Of course, where statements are published generally as they might be in a book or newspaper or by posting on a web site, one may need to have regard to all manner of persons who are likely to see them and absorb them [16].

The Court of Appeal adopted a different approach. Justice of Appeal Neave (Justice Ashley agreeing) said it is necessary to 'consider the effect of the words or conduct on an 'ordinary' member of the class to which it is directed, taking into account the circumstances in which the conduct occurs' [158]. This is because it may be inappropriate to import an element of reasonableness when assessing vilifying conduct. Justice Nettle, on the other hand, considered the test should be applied with reference to the 'perception of a reasonable member of the class of persons to whom conduct is directed' (emphasis added).

The 'ordinary member' test set out by Justice Neave in Catch the Fire Ministries has been adopted in a number of later cases, including by the New South Wales Court of Appeal in Sunol v Collier [No 2] [2012] NSWCA 44. (Bathurst CJ [33]-[34]). Also see, for example, Bennett v Dingle [2013] VCAT 1945 [38] and Australian Macedonian Advisory Council Inc v LIVV Pty Limited [2011] VCAT 1647 [65].

In Bennett v Dingle [2013] VCAT 1945 VCAT considered the nature of the relevant audience in relation to a complaint of religious vilification. The respondent made comments to the Jewish complainant while they were each walking their dogs at a local park. Applying the 'ordinary member' test, VCAT noted the complainant might be seen as the entire audience because the words were directed to him (despite the comments also being overheard by his friend). If the friend constituted the entire audience, it is unlikely that he would have been 'incited' because of his 'particular characteristic as a friend' of the complainant [42]. VCAT assumed the relevant audience was 'the ordinary member of the class of persons being non-Jewish members of the public present in the park when the words were uttered' [43]. Given the possible breadth of this class, VCAT noted 'consideration might be given to how any ordinary (not necessarily reasonable) person might perceive the words uttered' [43]. VCAT concluded even on a generous interpretation of who comprised the audience (that is, anyone in the park), it was doubtful that 'the ordinary non-Jewish person would perceive the words as going beyond venting' between the parties (particularly when the words were directed to the complainant) [45].

In Australian Macedonian Advisory Council , an article was published in the Australian Macedonian Weekly titled 'Who in this celestial world gave the Greeks the right to take away the Macedonian language'. VCAT found the article was incapable of inciting hatred because it was 'preaching to the converted' [68]. VCAT emphasised even though the article was published on the respondent's website, it was unlikely to be accessed by the public at large or by people who did not read the Macedonian language. VCAT concluded:

For the average Macedonian reader, this article is probably just 'preaching to the converted' and is not likely to stir up such raw emotion as to breach the Act. I suspect that the average non-Macedonian reader who might stumble across the article on the website or who might flick through it at the local shop would just wonder what it was all about without being incited to any extreme emotion about Greeks [68].

Although VCAT found the article was an 'intemperate and (in many parts) hyperbolical rant' [62], it was not persuaded it breached the RRTA. This approach, however, was not followed in later decisions under the RRTA.

Other standards applied by courts and tribunals (but not necessarily followed) include the:

Proof of a breach

In Catch the Fire Ministries , Justices' Nettle and Neave agreed conduct can be found to 'incite' hatred or other relevant emotions without proof that hatred against, serious contempt for, or revulsion or severe ridicule of, that person or class of persons actually occurred [14], [154], [160].

In other words, the inciting conduct does not have to 'succeed' in provoking a particular response for there to be a breach of section 8 [154]. Rather, a breach may occur if the words or conduct are 'capable of causing' that response or have the 'tendency to incite' that response [160] (approved in Australian Macedonian Advisory Council Inc v LIVV Pty Limited [2011] VCAT 1647 [65]).

This view has been followed in later cases including Sunol v Collier [No 2] [2012] NSWCA 44 [29]and Australian Macedonian Advisory Council [2011] VCAT 1647 [65].

In Unthank v Watchtower Bible and Tract Society of Australia [2013] VCAT 1810 a former Jehovah's Witness made a complaint about an article published in Watchtower that stated 'apostates are mentally diseased'. Although VCAT noted a casual reader might regard the language as 'hateful' or 'spiteful', the application was dismissed on the basis that there was no evidentiary basis for a finding of incitement (Deputy President, McKenzie [24]).

Motive and the meaning of 'on the ground of'

Under the RRTA, the court or tribunal must be satisfied the respondent engaged in conduct that incited hatred or other relevant emotion 'on the ground of' the race or religious belief or activity of a person or a group of persons. Section 9(1) of the RRTA confirms that in determining this, the respondent's motive for engaging in conduct is irrelevant. In Judeh v Jewish National Fund of Australia [2003] VCAT 1254 VCAT held the words 'on the ground of' require that race be 'an actuating or moving factor in the mind of the person who engages in the conduct' [38]. However, this position has not been reflected in later cases.

In Catch the Fire Ministries , the Victorian Court of Appeal found the words 'on the ground of' focus on whether the audience was incited to hatred or other relevant emotion based on religious belief or activity. Justice Nettle found for the purposes of section 8, conduct must incite hatred or other relevant emotion towards a person or group of persons that is based on their religious beliefs. It is irrelevant what moves or actuates the conduct [24]. In doing so, Justice Nettle approved the majority reasoning in Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349, that reading in a causal link would impede the attainment of the objects in section 17(1) of the Equal Opportunity Act 1984 .

Although Justices' Neave and Ashley both agreed with the approach set out by Justice Nettle, both had doubts based on the tension between sections 9(1) and 9(2). These sections provide it is irrelevant whether or not the race or religious belief or activity of a person is the only or dominant ground for the conduct, so long as it is the substantial ground.

Justice Neave noted requiring religious belief or activity to be at least a 'substantial ground' for an inciter's conduct, supports a construction of section 8 that requires a link between religious belief and the motivation of the inciter ( Catch the Fire Ministries [149]). It also mirrors anti-discrimination legislation that prohibits discrimination based on particular characteristics and are intended to provide a remedy for people discriminated against on a prohibited ground, even if the discrimination was not based solely on that ground.

Justice Ashley stated section 9(2) 'read naturally' requires race or religious belief to be associated with the 'ground for the conduct'. However, his Honour preferred to follow section 9(1), which clearly states a person's motivation for engaging in conduct is irrelevant [131].

Justice Nettle's approach in Catch the Fire Ministries was followed by VCAT in Australian Macedonian Advisory Council [2011] VCAT 1647. VCAT agreed the phrase 'on the ground of race' does not refer to the ground that caused the alleged inciter to act. It considered it refers to the ground on which people exposed to the alleged inciter's words were incited to hatred or other relevant emotion against another person or group [65].

Conduct that breaches the RRTA

There have only been two successful cases of vilification under the RRTA.

1. In Khalil v Sturgess [2005] VCAT 2446 VCAT found the complainants had been racially vilified when they were subjected to repeated racial abuse from their neighbours:

They were inciting anyone who heard their comments to behave in the same way. Their comments by their nature incite serious contempt, severe ridicule and hatred against the Khalils. I am satisfied that the comments were made because of the Khalils' colour and Arabic origin. This applies not only to those comments which were expressly racial in nature, but also to the obscenities, sexual references and other abuse which the respondents directed to the Khalils. The comments were made in a location and loudly enough that I am satisfied that they were intended to be heard not just by the Khalils but by any neighbour or member of the public in the vicinity [51]-[53].

2. In Ordo Templi Orientis v Legg [2007] VCAT 1484 VCAT found a website, produced and maintained by the respondents, vilified the complainants on the ground of their religious belief. The website claimed the Ordo Templi Orientis was a protected paedophile group and linked the Ordo Templi Orientis to alleged satanic and/or organised ritual sexual abuse of children. The website demanded readers take action.

Conduct found not to breach the RRTA

Conduct found not to breach the RRTA includes:

Ultimately, whether conduct breaches the RRTA depends on all the circumstances of the case.

Exceptions to racial and religious vilification

As outlined on page 6 of the Explanatory Memorandum the RRTA includes exceptions that are designed to strike a balance between freedom of speech and freedom from racial and religious vilification. The exceptions apply to private conduct and to certain public conduct engaged in 'reasonably and in good faith'. These exceptions are discussed below.

Public conduct exceptions

The public conduct exceptions are contained in section 11 of the RRTA:

(1) A person does not contravene section 7 or 8 if the person establishes that the person's conduct was engaged in reasonably and in good faith--

a) in the performance, exhibition or distribution of an artistic work; or

b) in the course of any statement, publication, discussion or debate made or held, or any other conduct engaged in, for--

(i) any genuine academic, artistic, religious or scientific purpose; or

(ii) any purpose that is in the public interest; or

c) in making or publishing a fair and accurate report of any event or matter of public interest.

(2) For the purpose of section (1)(b)(i), a religious purpose includes, but is not limited to, conveying or teaching a religion or proselytising.

Section 11(2) was added to the RRTA(9) after the decision in Fletcher v Salvation Army [2005] VCAT 152. In that case, VCAT found a genuine religious purpose may include asserting that a particular religion or no religion was the 'true way' and any other way is false [9].

Reasonably and in good faith

In Catch the Fire Ministries , the Court of Appeal considered the meaning of the words 'reasonably and in good faith' for the purposes of section 11(1) of the RRTA.

Justice Nettle found whether conduct was engaged in 'reasonably' must be assessed according to the objective standard of a reasonable person who is a member of an open and just multicultural society (that is, a 'moderately intelligent' and 'tolerant' society). His Honour noted this assessment is not always easy:

A society which consists of varied cultural groups necessarily has the benefit, and bears the burden, of a plurality of standards. Hence, in this society, to speak of persons in general is to speak of persons who in large part have different standards. And to speak of what is reasonable among them it is to invoke an idea which as between them is to a considerable extent informed by different standards. Nevertheless, experience has taught us that reasonable members of an open and just multicultural society are inclined to agree on the basics [95]-[96].

Justice Nettle also commented:

[T]he standards of an open and just multicultural society allow for different views about religions. They acknowledge that there will be differences in views about other peoples' religions. To a very considerable extent, therefore, they tolerate criticism by the adherents of one religion of the tenets of another religion … It is only when what is said is so ill-informed or misconceived or ignorant and so hurtful as to go beyond the bounds of what tolerance should accommodate that it may be regarded as unreasonable [98].

In relation to the 'reasonableness' requirement, Justice Neave noted the RRTA 'reflects the policy judgment that those who derive benefits from living in a society in which they can express their own views about religion must also accept some limits on that freedom' [197].

Justice Nettle also found whether conduct was 'in 'good faith' will depend on whether the respondent's subjective honest belief was that the conduct was necessary or desirable to achieve a genuine academic, artistic, religious or scientific purpose [92].

Artistic work

The courts are yet to consider the provision of the RRTA relating to artistic work in section 11(1)(a).

Section 11(1)(a) is identical to section 18D of the Racial Discrimination Act, which was considered in Bropho v Homan Right and Equal Opportunity Commission [2004] FCAFC 16. In that case, a cartoon appearing in the Western Australian newspaper portrayed the recovery of the head of a Western Australian Aboriginal leader who was said to have died at the hands of young colonial settlers. The cartoon suggested an unseemly desire on the part of some of them to take advantage of public funding to travel to England. The Federal Court held the cartoon fell within the exception in section 18D [104], [111]. Justice French and Justice Carr (Justice Lee dissenting) held rather than being read as an exception to section 18C (which was in effect an exception to the right to free speech), section 18D should be considered as limiting the proscription of section 18C and as such, should be read broadly [72]-[73] (French J).

The Federal Court's reasoning in Bropho was followed by the Federal Magistrates Court in Kelly-Country v Beers [2004] FMCA 336. The magistrate found the respondent's stand-up comedy performances in the character of a fictional Aboriginal person constituted 'artistic work' within the meaning of section 18D of the Racial Discrimination Act. He found they had come about as the result of a 'creative process' and 'the application of Mr Beers' imagination' [121] (Brown FM). The Magistrate also noted the Explanatory Memorandum specifically refers to 'comedy acts' as an artistic work.

Genuine academic, artistic, religious or scientific purpose

Section 11(1)(b) of the RRTA was considered by the Court of Appeal in Catch the Fire Ministries . In that case, Justice Nettle stated the question to be asked is whether a person's conduct was engaged in reasonably and in good faith, for a genuine academic, artistic, religious or scientific purpose [89].

Justice Nettle set out (in [89]-[96], [197]) the following test for section 11(1)(b):

  • identify the respondent's purpose for engaging in the conduct. If there was more than one purpose, what was the dominant purpose?
  • determine whether the dominant purpose was an academic, artistic, religious or scientific purpose (the relevant purpose)
  • if yes, determine whether the relevant purpose was a genuine academic, artistic, religious or scientific purpose (that is, whether the relevant purpose was 'truly' the purpose for engaging in the conduct)
  • if yes, determine whether the respondent engaged in the conduct 'reasonably and in good faith' for a genuine relevant purpose. [92]

Fair and accurate report of any event or matter of public interest

Section 11(1)(c) of the RRTA is identical to section 18D(c)(i) of the Racial Discrimination Act. Cases under the federal law help interpret the application of section 11(1)(c).

In Creek v Cairns Post Pty Ltd [2001] FCA 1007; (2001) 112 FCR 352 the Federal Court considered defamation law provides useful guidance on the meaning of a 'fair and accurate report' for the purposes of section 18D(c) of the Racial Discrimination Act:
[Section 18D], by the Explanatory Memoranda, is said to balance the right to free speech and the protection of individuals. The section has borrowed words found in defamation law … For a comment to be 'fair' in defamation law it would need to be based upon true facts and I take that to be the meaning subscribed to in the section. What is saved from a requirement of accuracy is the comment, which is tested according to whether a fair-minded person hold that view and that it is genuinely held [360].

The courts have looked at whether the specific facts relied on as the basis of a comment are true, to assess whether the exception can be relied on. See Eatock v Bolt [2011] FCA 1103; (2011) 197 FCR 261.

Private conduct exception

Section 12 of the RRTA includes the following exception for private conduct:

(1) A person does not contravene section 7 or 8 if the person establishes that the person engaged in the conduct in circumstances that may reasonably be taken to indicate that the parties to the conduct desire it to be heard or seen only by themselves.

(2) Subsection (1) does not apply in relation to conduct in any circumstances in which the parties to the conduct ought reasonably to expect that it may be heard or seen by someone else.

As outlined in the Explanatory Memorandum, the onus is on the person who claims the exception to prove the exception applies.

In Bennett v Dingle [2013] VCAT 1945 VCAT found the exception did not apply to a 'heated exchange' between the parties while they were walking their dogs. This was because 'the words were said in a public park … there were other people in the vicinity, although they may not have been very close by' [34].

In Khalil v Sturgess [2005] VCAT 2446 although not expressly discussed in the context of section 12, VCAT found the vilifying comments were made 'in a location and loudly enough that … they were intended to be heard not just by the Khalils but by any neighbour or member of the public in the vicinity' [51].

See also Rae v Commissioner of Police, New South Wales Police Force [No 2] [2010] NSWADT 36 [51]. In that case, the vilifying comments were made while the parties were in their respective gardens, driveways, and on the lake at the back of their properties.

Cases under the Racial Discrimination Act also provide useful guidance on the type of conduct that is likely to amount to 'private' conduct under the RRTA.

Section 18C of the Racial Discrimination Act prohibits certain behaviour done 'otherwise than in private'. Section 18C(2) provides that an act is taken not to be done in private if it is done in a public place, if it is done in the sight or hearing of people who are in a public place, or if it causes words, sounds, images or writing to be communicated to the public. The Act also defines a 'public place'.

In McLeod v Power [2003] FMCA 2 Federal Magistrate Brown found to establish that an act was done 'otherwise than in private', the complainant must do more than establish that an act occurred in a public place [50]. As noted by the Magistrate, a 'private conversation does not become a public one merely because it takes place in a public street or in a place to which members of the public have a right to admission or access'.

Similarly, in Gibbs v Wanganeen [2001] FMCA 14 Federal Magistrate Driver considered the quality of a conversation between a prisoner and a prison guard:

Given the peculiar characteristics of a prison, I find that exchanges between prisoners and their guards will frequently be private conversations but they may not be. In the present case I find that the exchange was intended by the respondent to be a private one. He clearly wanted to confront the [complainant] over the issue of immediate concern to him. He appears to have expressed himself off the cuff, and he appears not to have been intending by those statements to make a public complaint [18] (Driver FM).

Gibbs v Wanganeen is sometimes cited for what is described as a 'within earshot' test.(10) A similar test was applied in McMahon v Bowman [2000] FMCA 3 in which the Federal Magistrates' Court found:

[T]here is no evidence that the persons who were present in the street at the time of the incident heard what occurred but given that the words were shouted between one house and the next it would be reasonable to conclude that they were spoken in such a way that they were capable of being heard by some person in the street if that person was attending to what was taking place [26].

The 'within earshot' test is yet to be interpreted by VCAT in the context of the RRTA. However, as discussed above, VCAT has found the private conduct exception did not apply in circumstances where the words were spoken in a 'clearly audible voice' in a public park ( Bennett v Dingle [2013] VCAT 1945) or in a location and loudly enough that they were intended to be heard by any neighbour or member of the public in the vicinity ( Khalil v Sturgess [2005] VCAT 2446).

Disputes under the RRTA

The dispute resolution procedures under the Equal Opportunity Act apply to complaints under the RRTA.(11) The Explanatory Memorandum of the Racial and Religious Tolerance Bill includes modifications to ensure the mechanisms for complaints resolution under the Equal Opportunity Act are appropriate for vilification complaints (page 7).

Dispute resolution under the Equal Opportunity Act is discussed in more detail in the chapter on Resolving disputes.

Bringing a dispute to the Commission

Under section 19(1), where there is an alleged breach of the RRTA, the following persons may bring a dispute to the Commission for dispute resolution:

  • a person who claims that another person has unlawfully vilified them
  • if that person is unable to bring a dispute because of a disability (as defined in the Equal Opportunity Act) - a person who is authorised to do so on his or her behalf, or if that person is unable to authorise another person, any other person
  • if that person is a child - the child, a parent, or (if the Commission is satisfied the child or a parent consents), any other person.

Under section 19(5) the alleged breach does not have to relate exclusively to the person bringing the dispute.

Disputes can be brought against individuals of any age, corporations and unincorporated associations (except in relation to serious vilification offences), as outlined in section 3 (definition of 'person')and section 21.

Representative bodies

Section 20(1) of the RRTA provides that a representative body may bring a dispute to the Commission on behalf of a named person or persons if the Commission is satisfied:

  • each person is entitled to bring a dispute under section 19(1)(a)
  • each person has consented to the dispute being brought by the body on the person's behalf
  • if the dispute is brought on behalf of more than one person, the alleged breach arises out of the same conduct.

As outlined in section 20(2), the representative body must also have a 'sufficient interest' in the dispute. That is, the conduct in question must be a matter of genuine concern to the body because of the way conduct of that nature adversely affects, or has the potential to adversely affect, the interests of the body or the interests or welfare of the persons it represents. Examples of when a representative body has had sufficient interest under the RRTA include:

Conciliated complaints at the Commission

The Commission conducts dispute resolution for complaints brought under the RRTA. Examples of conciliated outcomes at the Commission include the following:

  • The complainant alleged comments made on a television show were religious vilification. The television network and the production company were named as respondents. The respondents, without admitting liability, provided the complainant with a written apology.
  • The complainant alleged racial and religious vilification by a newspaper that allegedly published statements that were sensitive to the Jewish community and were disparaging towards Jewish business or community figures. The matter was resolved, without admission of liability, with an apology.
  • The complainant alleged his neighbour racially vilified him for being of Middle Eastern descent by verbally abusing his family on a daily basis. The complainant feared for his family's safety. The matter was resolved through an undertaking by the respondent to cease the behaviour.
  • The complainant, a man of Indian descent, was involved in a minor car accident. He alleged when he asked for the other driver's details, the driver refused and threatened to kill him and crack his head open. The matter was resolved, without admission of liability, with a written apology and compensation.
  • The complainant alleged he was racially vilified at work when co-workers referred to him as a 'gook', 'slopehead' and 'rice eater'. He complained to management that he did not like being spoken to in this way and was laughed at and the vilification continued. The matter was resolved, without admission of liability, for compensation.
  • The complainant, of Sudanese descent, alleged his adult neighbour had for a number of years called out to his family that they were dirty pigs, animals and stupid. This lead to the neighbour's children disrespecting his family in a similar manner. The complainant felt his life and that of his family became one of fear, discomfort and distress. The matter was resolved by the parties agreeing to refrain from engaging in negative behaviour toward each other and to treat each other in a civil and respectful manner.

Examples of complaints that have settled under the racial hatred provisions of the federal Racial Discrimination Act can be found on the Australian Commission's conciliation register.

Applications to VCAT

Under section 23 a person may apply directly to VCAT alleging a breach of Part 2 of the RRTA (Unlawful conduct), whether or not that person has attempted dispute resolution at the Commission.

The same persons and representative bodies can bring an application to VCAT as those permitted to bring a dispute to the Commission - namely, those persons who are alleging racial or religious vilification against themselves or on behalf of another person or group of persons (see section 23A and section 23B).

Civil remedies

Under section 23C if VCAT finds a person has breached the RRTA, it can make one or more of the following orders:

  • an order that the person refrain from committing any further breaches of the RRTA
  • an order that the person pay to the complainant, within a specified period, an amount VCAT thinks fit to compensate the complainant for loss, damage or injury suffered in consequence of the breach
  • an order that the person do anything specified in the order with a view to redressing any loss, damage or injury suffered by the complainant as a result of the breach.

If a person fails to comply with an order of VCAT, under section 23D the Commission may apply to enforce the order on behalf of the complainant.

Civil remedies under the RRTA are the same as the remedies available under the Equal Opportunity Act section 125(a). Remedies and costs are discussed in more detail in the chapter on Remedies for discrimination.

Examples of remedies under the RRTA

The following remedies have been ordered under the RRTA:

  • In Khalil v Sturgess [2005] VCAT 2446VCAT ordered the respondents to publish a formal apology in the Herald Sun and pay the complainants compensation totalling $7,000 for loss, damage or injury suffered. In doing so, VCAT took into account 'the very serious and persistent nature of the respondents' abuse, the need not to trivialise what has happened, the objectives of the Act including to promote participation in a multicultural society, and the great disruption and humiliation caused to the complainants by the conduct of the respondents' [58].
  • In Ordo Templi Orientis v Legg [2007] VCAT 1484 VCAT ordered the respondents to remove the offensive material from their website and to refrain from making, publishing or distributing similar statements in Victoria. The respondents were later sentenced to nine months' imprisonment for failing to do so, see Ordo Templi Orientis Inc v Devine [2007] VCAT 2470.
  • In Catch the Fire Ministries Inc v Islamic Council of Victoria Inc [2006] VSCA 284, although the Court of Appeal ordered the matter be returned to VCAT for reconsideration, it found VCAT did not act outside its jurisdiction by ordering the respondents to place advertisements in two daily newspapers. VCAT noted this type of remedy 'is likely to go a long way to redressing the sense of hurt and therefore injury suffered by those against whom hatred or other relevant emotion has been incited'.

Examples of remedies under federal discrimination law

Given the limited case law under the RRTA, cases under the racial hatred provisions of the Racial Discrimination Act provide some guidance on the types of remedy that could be awarded for unlawful vilification under the RRTA.

Examples of remedies awarded under section 18C of the Racial Discrimination Act:

  • In Kanapathy v In De Braekt [No 4] [2013] FCCA 1368 a legal practitioner abused a security officer by calling him a 'Singaporean prick' and telling him to go back to where he had come from. The abuse occurred when the officer asked the respondent to undergo a security search at a court building. The Federal Circuit Court awarded the complainant $12,500 - $10,500 general damages for the offensive conduct and $2000 special damages for medical expenses.
  • In Barnes v Northern Territory Police [2013] FCCA 30 a police officer shouted offensive words at the complainant because of his race while driving past his home. The Federal Circuit Court awarded the complainant $3500.
  • In Sidhu v Raptis [2012] FMCA 338 the complainant was called a 'coconut' and 'nigger' in public. The Federal Magistrates Court awarded the complainant $2000.
  • In Campbell v Kirstenfeldt [2008] FMCA 1356 the complainant's neighbour abused the complainant and her family by calling them names including 'niggers', 'coons', 'black mole' and 'black bastards'. The Federal Magistrates Court awarded the complainant $7500 and ordered the respondent to make a written apology.
  • In Silberberg v The Builders Collective of Australia Inc [2007] FCA 1512 the second respondent posted messages to an internet discussion forum that offended the complainant because of his Jewish race and ethnicity. The Federal Court of Australia made an order restraining the second respondent from publishing the offending messages or any similar material on the internet or elsewhere.
  • In Jones v Toben [2002] FCA 1150 the director of the Adelaide Institute published material on its website casting doubt about whether the Holocaust occurred. The Federal Court of Australia ordered the respondent to remove the offending material from its website, and not to publish or republish the same or similar material. An appeal to the Full Court of the Federal Court was dismissed.

Serious vilification

The RRTA criminalises serious racial and religious vilification, under section 24 and section 25. As outlined in the Explanatory Memorandum the criminal offences only apply to the most 'extreme behaviour' and can be investigated by Victoria Police (page 3).

Serious racial and religious vilification under the RRTA refers to intentional conduct, on the ground of race or religious belief or activity, that the offender knows is likely to:

  • incite hatred against a person or group, and to threaten (or incite others to threaten) physical harm to the person or group or their property (section 24(1) and section 25(1))

or

The offence of 'serious racial vilification' is set out in section 24 of the RRTA:

(1) A person (the offender) must not, on the ground of the race of another person or class of persons, intentionally engage in conduct that the offender knows is likely -

a) to incite hatred against that other person or class of persons; and

b) to threaten, or incite others to threaten, physical harm towards that other person or class of persons or the property of that other person or class of persons.

Note
"Engage in conduct" includes use of the internet or e-mail to publish or transmit statements or other material.
Penalty: In the case of a body corporate, 300 penalty units;
In any other case, imprisonment for 6 months or 60 penalty units or both.
(2) A person (the offender) must not, on the ground of the race of another person or class of persons, intentionally engage in conduct that the offender knows is likely to incite serious contempt for, or revulsion or severe ridicule of, that other person or class of persons.
Note
"Engage in conduct" includes use of the internet or e-mail to publish or transmit statements or other material.
Penalty: In the case of a body corporate, 300 penalty units;
In any other case, imprisonment for 6 months or 60 penalty units or both.
(3) For the purposes of subsections (1) and (2), conduct -
a) may be constituted by a single occasion or by a number of occasions over a period of time; and
b) may occur in or outside Victoria.
(4) A prosecution for an offence against subsection (1) or (2) must not be commenced without the written consent of the Director of Public Prosecutions.

Section 25 is framed in similar terms to section 24 of the RRTA, except that it relates to conduct done on the ground of the religious belief or activity of another person or class or persons.

The Explanatory Memorandum explains:

These offences refer to the extreme forms of conduct which promote and urge the strongest forms of dislike towards a person or group because of the race of the person or group. The offender must intend the conduct in the knowledge that the promotion of these feelings of extreme dislike will be the likely result of the conduct. This conduct may include communications using the internet (page 8).

According to section 26, in determining whether a person has committed an offence under section 24 or section 25, it is irrelevant whether the person made an incorrect assumption about the race or religious belief or activity of another person or group at the time of the alleged offence. The Explanatory Memorandum notes, for example, that a person will not escape liability if the person vilifies a group of persons in the mistaken belief that they are of a particular racial origin (page 8).

Section 24 and section 25 are strict liability offences, which means prosecution is not required to prove fault. Unlike the unlawful vilification provisions in section 7 and section 8 of the RRTA, there are no defences or exceptions for serious racial and religious vilification. However, a criminal standard of proof applies to these offences that must be proved 'beyond reasonable doubt', as outlined in section 141 of the Evidence Act 2008 (Vic).

There has been one successful criminal prosecution of the RRTA. Three men were charged with the offence of serious religious vilification (section 25) after they filmed the beheading of a mannequin with a toy sword outside council offices in 2015. The defendants' argued their video, which was released on an activist group Facebook page, was an act of free speech that focused on a specific tenant of Islam. Magistrate Hardy disagreed and found the video was clearly intended to create serious contempt for or ridicule of Muslims. Each defendant was each found guilty, sentenced to a fine of $2,000 and a conviction was recorded. At the time of publication, one defendant had appealed the conviction.(12)

Prosecution and penalties

In Victoria a prosecution for the offence of serious racial or religious vilification cannot be started without the written consent of the Director of Public Prosecutions, as outlined under section 24(4),and section 25(4).

The maximum penalty for an offence under section 24 or section 25 of the RRTA is 300 penalty units for a body corporate, or 6 months' imprisonment and/or 60 penalty units for an individual. A penalty unit is currently $158.57 (as at 1 July 2017).

Notes

1 : See Anti-Discrimination Act 1991 (Qld)s 124A; Anti-Discrimination Act 1977 (NSW) ss 20C, 20D; Racial Vilification Act 1996 (SA) s 4;Criminal Code Act 1913 (WA) ss 76-80D;Anti-Discrimination Act 1992 (NT) s 19;Discrimination Act 1991 (ACT)s 67A.

2 : Racial and/or religious vilification is also a crime in Queensland (Anti-Discrimination Act 1991 (Qld) s 131A), Western Australia ( Criminal Code Act 1913 (WA) ss 77, 78, 80A, 80B), New South Wales (Discrimination Act 1977 (NSW) s 20D), South Australia (Racial Vilification Act 1996 (SA) s 4), Australian Capital Territory ( Discrimination Act 1991 (ACT) s 67).

3 : Racial and Religious Tolerance Act 2001 (Vic) ss 7, 8.

4 : The court found the group of people were criticised not because of their Jewish ethnicity but because of their allegedly divisive and destructive activities. Cf. Goldberg v G Korsunski Carmel School (2000) EOC [93-074] (The Court found non-Orthodox Jews were not a race for the purposes of the Equal Opportunity Act 1984 (WA)).

5 : Tantum religio potuit suadere malorum is a quotation from the Roman poet Lucretius (96BC-55BC) and has been translated to mean 'So potent was religion in persuading to evil deeds'.

6 : National Italian Australian Foundation v Herald and Weekly Times Pty Ltd [2005] VCAT 2704 [24]; Khalil v Sturgess [2005] VCAT 2446 [19].

7 : Ibid [36] (Nettle J), [178]-[179] (Neave J). Ashley J, at [132], left open the question of whether VCAT's consideration of balance in the seminar presentation led it into error.

8 : Citing Judeh v Jewish National Fund of Australia [2003] VCAT 1254 [38]; Catch the Fire Ministries Inc v Islamic Council of Victoria Inc [2006] VSCA 284 [14]-[16], [132], [161].

9 : Explanatory Memorandum, Equal Opportunity and Tolerance Legislation (Amendment) Bill 2006 (Vic) 3.

10 : See McLeod v Power [2003] FMCA 2 [51] (Brown FM) or Gibbs v Wanganeen [2001] FMCA 14 [17] (Driver FM); [2001] FMCA 14; (2001) 162 FLR 333. The 'within earshot' test was discussed in Chambers v Darley [2002] FMCA 3. However, the court found it was ultimately unnecessary to decide the point.

11 : Racial and Religious Tolerance Act 2001 (Vic) s 22. In particular, Division 1 of Part 8 (Dispute resolution by the Commission), Division 3 of Part 11 (The Commissioner), Division 1 of Part 12 (Proceedings for offences) Division 3 of Part 12 ((Other offences), and s 189 of the Equal Opportunity Act 2010 (Vic) (Protection of people giving evidence and information) apply to disputes under the RRTA.

12 : Rohan Smith, 'Far-right nationalist behind mock beheading appealing his conviction' news.com.au (4 April 2018) http://www.news.com.au/national/victoria/courts-law/farright-nationalist-behind-mock-beheading-appealing-his-conviction/news-story/8168681 accessed 30 April 2018.


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