Wednesday, 27 November 2024

Bills

Justice Legislation Amendment (Anti-vilification and Social Cohesion) Bill 2024

Statement of compatibility

Anthony CARBINES (Ivanhoe – Minister for Police, Minister for Crime Prevention, Minister for Racing) (11:09): In accordance with the Charter of Human Rights and Responsibilities Act 2006, I table a statement of compatibility in relation to the Justice Legislation Amendment (Anti-vilification and Social Cohesion) Bill 2024:

In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006 (the Charter), I make this Statement of Compatibility with respect to the Justice Legislation Amendment (Anti-vilification and Social Cohesion) Bill 2024 (the Bill).

In my opinion, the Bill, as introduced to the Legislative Assembly, is compatible with human rights as set out in the Charter. I base my opinion on the reasons outlined in this statement.

Overview

The purpose of the Bill is to strengthen and expand anti-vilification laws to better protect individuals and communities from vilification and promote the rights of all Victorians to participate equally in a democratic and inclusive society. The Bill gives effect to 15 recommendations of the 2021 Victorian Parliamentary Inquiry into Anti-vilification Protections (Inquiry).

The term ‘vilification’ is more commonly known as hate speech or conduct, but it includes a broader range of behaviours that are against the law. This hateful behaviour can cause significant harm to a person’s health and wellbeing, and reduce their ability to participate in public life.

Currently, the Racial and Religious Tolerance Act 2001 (RRTA) protects people from racial and religious vilification. The Bill expands anti-vilification protections beyond race and religious belief or activity to also protect disability, gender identity, sex, sex characteristics, sexual orientation, and personal association with a person with a protected attribute.

The Bill improves criminal serious vilification offences, including by:

• introducing a new incitement offence and threat offence into the Crimes Act 1958 that capture broader conduct including intentional and reckless behaviour

• increasing maximum penalties, and

• including a defence for the new incitement offence for conduct that is engaged in for a genuine political purpose.

The Bill also strengthens civil anti-vilification protections by:

• introducing civil protections into the Equal Opportunity Act 2010 (EOA) (a modified incitement-based protection and a new harm-based protection)

• introducing a definition of ‘public conduct’

• refining the existing civil exceptions to vilification, and

• extending the existing powers of the Victorian Equal Opportunity and Human Rights Commission (VEOHRC) to better respond to vilification.

The Bill imposes a review of the operation of the reforms to be conducted no later than 5 years after commencement of all the reforms in the Act. This provides an opportunity to consider how the reforms operate in practice, including any limitations on Charter rights.

Human rights protected by the Charter that are relevant to the Bill

The following rights under the Charter are relevant to the Bill:

• recognition and equality before the law (section 8)

• privacy (section 13)

• freedom of religion and belief (section 14)

• freedom of expression (section 15)

• protection of families and children (section 17)

• taking part in public life (section 18), and

• rights in criminal proceedings (section 25).

Under the Charter, rights can be subject to limits that are reasonable and justifiable in a free and democratic society based on human dignity, equality and freedom. Rights may be limited to protect other rights. As discussed below, I consider that the limitations this Bill imposes on Charter rights are reasonable and justified in accordance with section 7(2) of the Charter.

Right to recognition and equality before the law

Section 8 of the Charter provides that every person has the right to enjoy their human rights without discrimination. It protects the right for every person to equal protection of the law and the right to equal and effective protection against discrimination.

Justice Bell in Lifestyle Communities Ltd (No 3) (Anti-Discrimination) (2009) 31 VAR 286 at [109] and [277] noted that the equality rights in section 8 are ‘the keystone in the protective arch of the Charter’ and the fundamental value underlying the right to equality is the ‘equal dignity of every person’. Unequal treatment on the basis of a person’s attribute can cause ‘emotional pain, distress and a grievous loss of personal dignity and self-worth’ and can have ‘serious, and even traumatic, physical, social or economic consequences’.

The Bill promotes the right to recognition and equality before the law in several ways. Most significantly, expanding legal protections beyond race and religious belief or activity protects more individuals and communities who are most impacted by vilification, including those who have not previously been protected under anti-vilification laws. In support of this, the Bill clarifies that a civil vilification complaint can be made to VEOHRC or the Victorian Civil and Administrative Tribunal (VCAT) based on one or more protected attributes. The criminal offences will also apply to vilifying conduct that occurs on the basis of more than one attribute. This recognises that hate speech or conduct may be directed at individuals with intersecting identities and protected attributes, further promoting recognition and equality before the law.

Other ways the Bill promotes the right to recognition and equality before the law include, for example:

• The new serious vilification offences (new sections 195N and 195O of the Crimes Act), modified civil incitement-based protection (new section 102E of the EOA) and new civil harm-based protection (new section 102D of the EOA) capture a broader range of conduct than current RRTA provisions, providing greater protection from the harmful effects of vilification.

• Expanding VEOHRC’s existing powers under the EOA to vilification matters enables VEOHRC to better respond to vilification in the community, including systemic vilification. These powers include the power to initiate investigations, issue practice guidelines, and intervene and assist in court and tribunal proceedings.

• Allowing a representative body (such as a religious or community organisation) to bring a dispute to VEOHRC on behalf of an unnamed person better supports people to bring vilification complaints. It recognises that in some circumstances people may not feel comfortable or safe to identify themselves through the dispute resolution process.

The Bill also limits the right to equality and recognition before the law, including by continuing to provide civil exceptions and including a defence to the new incitement offence. Civil exceptions (new section 102G of the EOA) apply to conduct engaged in, reasonably and in good faith, for artistic work, for any genuine academic, artistic, public interest, religious or scientific purpose, or for any report of any event or matter of public interest. The criminal defence applies to conduct that has a genuine political purpose.

In effect, these exceptions and the defence may permit behaviour that would otherwise constitute vilification, thereby limiting the right to equality for those targeted or affected by vilifying conduct. However, I consider these limitations are reasonable and justified in accordance with section 7(2) of the Charter. The political purpose defence, for example, is intended to ensure that genuine political discourse is not criminalised. It recognises the importance of ensuring robust political discourse on matters of politics and the government, within an open and democratic society. Including the civil exceptions and criminal defence also promotes other rights, including the right to freedom of expression and the right to freedom of religion and belief (see below).

Right to privacy

Section 13(a) of the Charter provides a right to privacy, stating that a person has the right not to have their ‘privacy, family, home or correspondence unlawfully or arbitrarily interfered with.’

Justice Bell has emphasised the ‘fundamental importance’ of the right to privacy in ensuring that ‘people can develop individually, socially and spiritually’ in their private sphere, thereby providing the foundation for participation in democratic society (affirmed in Castles v Secretary of the Department of Justice (2010) 28 VR 141 [78]; PJB v Melbourne Health (2011) 39 VR 373 [54]; Director of Housing v Sudi(Residential Tenancies) (2010) 23 VAR 139 [29]).

Section 13(a) of the Charter prohibits unlawful and arbitrary intrusions to privacy. Determining whether an interference is arbitrary involves a broad assessment of whether it extends beyond what is reasonably necessary to achieve the statutory purpose (Thompson v Minogue (2021) 67 VR 301 [56]–[58]).

The Bill’s reforms engage the right to privacy but, as they are not intended to arbitrarily interfere with the private behaviour of a person, in my view, they do not limit the right. To the extent that they may limit the right, I consider any limitation is reasonable and justified in accordance with section 7(2) of the Charter.

Application to private conduct

Consistent with the current civil anti-vilification laws, the civil incitement-based and harm-based protections only apply to ‘public conduct’. The Bill defines ‘public conduct’ (new section 102C of the EOA) to provide greater clarity about how the laws apply. The definition is based on the definition of ‘public act’ in section 93Z(5) of the Crimes Act 1900 (NSW), in accordance with recommendation 13 of the Inquiry. It is not intended to change how the law currently operates, merely clarify its operation. For example, it clarifies that conduct may be public even if it occurs on private property or land, or at a place not open to the general public. This is not intended to limit the right to privacy because a person’s reasonable expectation of privacy is already reduced when out in public as conduct can be observed or overheard by someone else, compared to when conduct occurs within a person’s home.

The Bill excludes tattoos or other forms of body modification from the definition of public conduct. This ensures the Bill is not more restrictive than necessary to fulfill its purpose and recognises the importance of protecting a person’s bodily integrity as part of the right to privacy. In addition, private conduct, such as private conversations, is not intended to be captured by the definition. This recognises the importance of individuals being able to express themselves freely in their private sphere, while recognising the harm caused by vilifying conduct that occurs in public.

In contrast, and consistent with the current serious vilification offences, the new serious vilification offences prohibit conduct that occurs in public or in private, including conduct that occurs on private websites and forums. This reflects how the type of extreme conduct captured by the criminal offences – including threats of physical harm or to damage property – can cause significant harm and undermine social cohesion even when it takes place in private settings or is directed at limited audiences. This conduct cannot be excused merely because it takes place in private. As such, the offences do not arbitrarily interfere with privacy, and any limitation on the right is reasonable and proportionate to protect members of the public from the harmful effects of serious vilifying conduct.

VEOHRC investigation powers extended

The Bill extends VEOHRC’s current investigation powers under Part 9 of the EOA to vilification matters. This will enable VEOHRC to better respond to vilification, including by:

• initiating an investigation into vilification matters (section 127 of the EOA)

• asking for information for an investigation (section 130 of the EOA), and

• applying to VCAT for an order to compel the production of information or documents or to compel a witness (sections 131 and 134 of the EOA).

These extended investigation powers may limit the right to privacy as they may involve disclosing the identity of persons. However, the EOA has existing safeguards that ensure that any limitations imposed by extending VEOHRC’s powers to vilification matters are reasonable and justified. Any impact on privacy is proportionate to the legitimate aims of the new laws, which are to protect individuals and groups from the harmful effects of vilification. For those who are targeted, vilification can lead people to feel dehumanised, isolated and marginalised.

Right to freedom of religion and belief

Section 14 of the Charter protects the right to freedom of religion and belief. This includes the right to hold a religion and belief and to demonstrate one’s religion or belief in worship, observance, practice and teaching. The right promotes respect for different religious faiths and beliefs, including the right not to hold religious beliefs, as an integral part of an equal and democratic society based on human dignity.

While the right to have or adopt a religion and belief is a matter of individual thought and is absolute, the right to demonstrate religion and belief impacts others and is therefore subject to reasonable limitations. The Victorian Court of Appeal in Christian Youth Camps Ltd v Cobaw Community Health Services Ltd (2014) 50 VR 256 noted that the right to freedom of religion may need to be limited to protect the rights of others. The balancing of these rights does not involve privileging one right over the other, but a recognition that rights coexist.

The Bill promotes the right to freedom of religion and belief by continuing to protect the attribute of ‘religious belief or activity’ and improving how anti-vilification laws operate. Extending anti-vilification laws to protect additional attributes may limit the right to freedom of religion and belief, however, I consider that any limitations are reasonable and justified in accordance with section 7(2) of the Charter.

It is unlikely that the serious vilification threat offence (new section 195O of the Crimes Act) would limit the right to freedom of religion and belief, as observing a religious belief would be unlikely to involve threats of physical harm or property damage. The incitement offence (new section 195N of the Crimes Act) may inadvertently limit the right to demonstrate religion and belief in the context of a religious sermon or proselytising, but it does not limit the right to hold a religious belief. Further, the offence targets only the most serious and harmful forms of vilification. Conduct that meets the offence thresholds – which intentionally or recklessly seeks to incite hatred or other specified emotions in others – would interfere with the rights of others to be free from serious vilification. Accordingly, I consider any limitations the incitement offence imposes are lawful and proportionate to achieving the Bill’s purpose of protecting Victorians from serious vilification.

The Bill retains a civil religious purpose exception for conduct engaged in, reasonably and in good faith, for any genuine religious purpose. This exception protects the right to freedom of religion and belief and minimises any limitations on the right.

The Bill also modernises the definition of ‘religious purpose’ to align it with the wording of the Charter, to define a religious purpose as including (but not limited to) worship, observance, practice and teaching. The new definition will remove reference to ‘proselytising’ that is in the current definition of religious purpose under section 11(2) of the RRTA. However, this is not intended to narrow the definition, as courts have accepted in other contexts that proselytising may be a fundamental part of at least some religious faiths (see, Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 216 ALR 1 [9] (Gleeson CJ)). Accordingly, proselytising could fall within the new definition of religious purpose.

Right to freedom of expression

Section 15 of the Charter provides that every person has the right to freedom of expression, including the freedom to hold an opinion without interference and seek, receive and impart information and ideas of all kinds through a variety of mediums.

The right is essential to individual self-fulfilment and the ‘social and cultural development of the individual in society’ (XYZ v Victoria Police (2010) 33 VAR 1 [554] (Bell J)). The right to freedom of expression is also a foundation of the rule of law and ‘one of the essential pillars of a democratic system of government, because it enables citizens to freely and effectively participate in the political, social, economic and other affairs of their community’ (Magee v Delaney (2012) 39 VR 50 [181] (Kyrou J)).

The right to freedom of expression is ‘not absolute but is conditional and qualified’ (Magee v Delaney (2012) 39 VR 50 [103] (Kyrou J)). The right may be subject to lawful restrictions reasonably and necessary to respect the rights and reputation of other persons, or for the protection of national security, public order, public health or public morality (section 15(3) of the Charter).

The relationship between the lawful restrictions in section 15(3) and the proportionality assessment under section 7(2) of the Charter is not settled. The approach taken by Justice Bell in McDonald v Legal Services Commissioner (No 2) [2017] VSC 89 at [33] is that section 15(3) states the relevant considerations for performing the proportionality assessment under section 7(2).

The Bill imposes some narrow limits on the right to freedom of expression. However, I consider these limitations are reasonable and justified in accordance with section 7(2) of the Charter, as informed by the factors set out in section 15(3).

Protection of additional attributes

Extending anti-vilification protections to additional attributes and clarifying that this will protect people living with HIV or AIDS and drag performers, limits the right to freedom of expression as it prohibits a broader range of hate speech and conduct.

However, the purpose of this aspect of the reform, and the Bill as a whole, is to limit hateful speech and conduct to protect at risk individuals and communities. The Inquiry heard that vilification is common for many Victorians, including for First Nations, Muslim and Jewish people, women, LGBTIQA+ communities and people with disability. The Bill extends the attributes only to the extent identified as necessary by the Inquiry (recommendation 1) to protect the individuals and communities that are at most risk of vilification.

Stronger criminal offences and civil protections

The new threat offence (new section 195O of the Crimes Act) does not limit the right to freedom of expression. Criminal acts of threats and violence are not protected forms of expression (Magee v Delaney (2012) 39 VR 50 [86]–[91]). However, the new incitement offence (new section 195N of the Crimes Act) will impose some limitations on this right.

The new civil harm-based and modified incitement-based protections (new section 102D and 102E of the EOA) will impose some limitations on this right by prohibiting vilifying conduct in public that is based on a person’s protected attribute.

However, the new incitement offence, modified civil incitement-based protection and new civil harm-based protection are designed to limit the right to freedom of expression only to the extent that is reasonably necessary to protect the rights of individuals and groups with protected attributes. The Bill does this by:

• imposing criminal sanctions only for the most serious and egregious conduct, when a person intentionally or recklessly does something that is likely to incite hatred or other specified emotions on the ground of a protected attribute

• imposing high legal thresholds so that the civil anti-vilification protections would only capture hateful conduct (conduct that is hateful, seriously contemptuous, reviling or severely ridiculing of another person or group) and not merely offensive speech

• applying civil exceptions to ensure legitimate conduct is not against the law, and

• applying a genuine political purpose defence for the incitement offence.

Civil exceptions (new section 102G of the EOA) will apply to conduct that is engaged in, reasonably and in good faith, for artistic work, for any genuine academic, artistic, public interest, religious or scientific purpose, or for any report of any event or matter of public interest. These exceptions promote the right to freedom of expression and protect debate and discussion on important issues, including protecting the ability of the media to communicate on matters that may involve vilifying conduct. While the exceptions are broad, they are also limited by the requirement for the conduct to be engaged in ‘reasonably and in good faith’.

The term ‘reasonably’ has been assessed from the objective standard of a reasonable person who is part of an open and just multicultural society (Catch the Fire Ministries Inc v Islamic Council of Victoria Inc (2006) 15 VR 207 [94] (Nettle JA)). This recognises that, while we live in a tolerant society that acknowledges the right for individuals to express themselves freely, there are limits, and some conduct will be considered ‘intolerable despite its apparent purpose’ and therefore would not be covered by the exception (at [96] (Nettle JA)). The requirement ‘in good faith’ involves considering the respondent’s subjective belief about whether the conduct was necessary or desirable to achieve a genuine purpose (at [92] (Nettle JA)).

The genuine political purpose defence for the incitement offence excuses genuine discourse about political matters, such as matters pertaining to government policies and decisions. This recognises that open discussion of political issues is critical in a free, open and democratic society and promotes rights to freedom of expression and taking part in public life.

The civil exceptions and the criminal incitement defence reflect a balancing of rights and ensure that these reforms only limit the right to freedom of expression to the extent necessary to protect the right to equality.

Additional safeguards in the new harm-based protection are intended to uphold freedom of expression by narrowing how the protection will apply in practice:

• An objective assessment: whether conduct would meet the threshold requires objectively assessing, from the perspective of a reasonable person with that same attribute, whether they would consider that conduct hateful, seriously contemptuous, reviling or severely ridiculing. This promotes freedom of expression by ensuring conduct is assessed objectively, and not from the perspective of someone who may have an extreme or atypical reaction.

• An additional standing requirement: the Bill only enables a person to bring a harm-based complaint to VEOHRC or VCAT if they have the relevant protected attribute and are part of the audience of the conduct. This narrows the standing test so that only people who have been targeted by the conduct can bring a complaint.

Rights in criminal proceedings

Section 25(1) of the Charter provides the right to be presumed innocent until proven guilty. One aspect of this right is ‘the requirement that the prosecution in a criminal case has the burden of proving guilt’ (Momcilovic v The Queen (2011) 245 CLR 1; [2011] HCA 34 [52]–[55] (French CJ)). This becomes relevant where a statutory provision shifts the burden of proof onto an accused in a criminal proceeding.

The Bill’s new political purpose defence (new section 195N(4)) imposes an evidential burden of proof on an accused to raise evidence that suggests their conduct has a genuine political purpose. As the existence of a defence is usually within the accused’s own knowledge, it is justifiable to expect the accused to raise evidence of the defence. However, an evidential burden does not limit the section 25(1) right to be presumed innocent until proven guilty (R v DA & GFK [2016] VSCA 325). Once evidence of a genuine political purpose is raised, the prosecution must prove, beyond reasonable doubt, that the accused did not engage in the conduct for a genuine political purpose.

Right to take part in public life

Section 18(1) of the Charter provides that every person has the right, without discrimination, to participate in public affairs.

The Inquiry highlighted how, over time, vilifying conduct can limit how individuals and communities participate in public life. The Bill promotes the rights of individuals with protected attributes to take part in public life by extending and strengthening anti-vilification protections. This also benefits the broader community, as vilifying conduct that impacts an individual’s ability to participate in public life denies the community the benefit of diverse voices and experiences.

The criminal offences and civil protections in the Bill may limit the right to take part in public life by restricting speech that vilifies others based on their protected attributes. However, as discussed in relation to the right to freedom of expression, the reforms in this Bill involve a balancing of rights. Any limitations on this right are reasonable and justified in accordance with section 7(2) of the Charter, as they protect individuals from vilification and their right to fully participate in public life.

Protection of families and children

Section 17 of the Charter protects the rights of families and children. Section 17(2) recognises the vulnerability of children because of their age, conferring additional rights on them. It is concerned with protecting the ‘best interests of the child’ (Certain Children by their Litigation Guardian Sister Marie Brigid Arthur v Minister for Families and Children [2016] VSC 796 [145]).

The Bill requires Victoria Police to obtain the DPP’s consent to charge an accused who is a child (under 18 years of age) with serious vilification. This safeguard promotes the protection of children by ensuring that their unique characteristics and vulnerabilities are considered before deciding to proceed with a prosecution.

The civil protections also promote the rights of children, by clarifying that conduct may be public if it occurs at a school, even though schools are generally not open to the general public. Whether conduct that occurs in a school would be considered ‘public’ and fall within the definition of public conduct will depend on the particular circumstances in which the vilifying conduct occurred. This is to ensure that children and young people can be protected from the damaging impacts of vilification that occurs in schools.

The Hon. Anthony Carbines MP

Minister for Police

Minister for Crime Prevention

Minister for Racing

Second reading

Anthony CARBINES (Ivanhoe – Minister for Police, Minister for Crime Prevention, Minister for Racing) (11:09): I move:

That this bill be now read a second time.

I ask that my second-reading speech be incorporated into Hansard.

Incorporated speech as follows:

Vilification has no place in our community. It is contrary to our democratic values and undermines social cohesion and the benefits that inclusion, multiculturalism and diversity brings to our community.

The term ‘vilification’ is more commonly known as hate speech or conduct but includes a broader range of behaviours that are against the law. This hateful behaviour impairs the dignity of its targets and undermines social cohesion because it can result in people being silenced or marginalised from participation in public life.

Recently, there has been an alarming increase in reports of hate speech and conduct:

• The 2024 Understanding reporting barriers and support needs for those experiencing racism in Victoria report recorded that 76 per cent of people surveyed stated that they, or someone in their care, have experienced racism in Australia.

• The 2023 Victorian Antisemitism Report recorded that there has been a 228 per cent increase in antisemitic incidents.

• Since 7 October 2023, the Islamophobia Register Australia has seen an over 600 per cent increase in reported incidents.

• The 2023 Trans Justice Project and Victorian Pride Lobby, in its Fuelling Hate report, reported anti-trans hate is escalating in Australia with 49 per cent of trans participants surveyed reporting having experienced online anti-trans abuse, harassment or vilification and 47 per cent having experienced that behaviour in person.

• The Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability heard evidence that abuse is a common occurrence when people with disability leave their home and recommended that disability be covered by state criminal anti-vilification offences.

• In 2019, the eSafety Commissioner reported that around 14 per cent of Australian adults were estimated to have been the target of online hate speech in the previous year, with LGBTIQA+ communities and First Nations people experiencing online hate speech at more than double the national average.

In Victoria, only hate speech and conduct that meets the legal definition of vilification is against the law. Currently, the Racial and Religious Tolerance Act 2001 protects people from racial and religious vilification. People who are vilified for other reasons are not protected by current anti-vilification laws.

In 2021, the Victorian Parliamentary Inquiry into Anti-vilification Protections (Inquiry) examined the operation and effectiveness of the Racial and Religious Tolerance Act. The Inquiry heard that vilification is commonly faced by many Victorians, including First Nations, Muslim and Jewish people, women, LGBTIQA+ communities and people with disability. Many Victorians experience its harmful effects, including online.

The Inquiry found that despite the protections in the Racial and Religious Tolerance Act, prejudice and hate are unfortunately still rife in Victoria, and the laws are ineffective and inaccessible. The Inquiry recommended extending anti-vilification laws to protect more Victorians and strengthening how the laws operate.

The government has already implemented the first stage of the Inquiry’s recommendations, by banning the use of the Nazi Hakenkreuz in 2022, followed by the 2023 ban of the Nazi salute and other symbols and gestures used by the Nazi Party.

This Bill now gives effect to a further 15 of the Inquiry’s legislative recommendations. It will strengthen Victoria’s anti-vilification laws, improve the operation of the laws and assist in responding appropriately and effectively to the most serious cases of vilification, as part of a calibrated suite of measures to address conduct of increasing seriousness.

These reforms are one part of wider initiatives being taken across government to address and prevent vilification, hate crimes and violence. Prevention is as important as changing the law, that is why the government is also working on complementary prevention-based strategies and initiatives to reduce and eliminate vilification. These include initiatives to better understand the root causes of vilification, community and school-based education programs, and improved support for those impacted by vilification.

The development of the Bill

This Bill has benefited from extensive public and stakeholder consultation.

In addition to the consultation carried out by the Inquiry, in 2023, the government held three submissions processes supported by consultation papers and surveys on Engage Victoria and consultation with key stakeholders. Victorians had the opportunity to provide their views on extending the attributes protected by anti-vilification laws, expanding criminal offences and strengthening the operation of civil protections. A report back on the feedback received during these consultation processes was published on Engage Victoria in May 2024.

Further, in September 2024 the government published an overview paper detailing proposed changes to the law and provided another opportunity for Victorians to have their say on the proposed reforms. There has also been consultation with human rights, justice, legal, multicultural, advocacy and faith-based groups.

I would like to thank the Victorian community and stakeholders for their input into these reforms over a number of years. I would like to particularly thank those with lived experience of vilification, and their advocates, for engaging in the reform process and helping to contribute to better laws for all.

It has not been possible to adopt or reconcile all views – it is clear that Victorians have diverse opinions about these reforms. However, the advice and feedback has been carefully considered and balanced in developing this Bill.

Balancing Charter rights

The reforms in this Bill have been developed to carefully balance rights under the Charter of Human Rights and Responsibilities Act 2006 (Charter), including the right to freedom of expression, equality and freedom of religion and belief.

The freedom to engage in robust discussion, reasonably and in good faith, is an important pillar of an open and democratic society and these laws are not intended to prohibit this.

The right to freedom of expression is an essential component of our society and, like all Charter rights, can only be subject to reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom. Vilifying conduct is contrary to democratic values because of the harm that it causes to the people who are subjected to it, and the broader community. This Bill promotes the equal participation in public life for all.

The Bill promotes the right to equality and the freedom to live without vilification. It also upholds the right to freedom of religion and belief. Every person has the right to freedom of thought, conscience, religion and belief under the Charter and to demonstrate that religion or belief in worship, observance, practice and teaching. The religious protections under existing anti-vilification laws will be retained and strengthened by improving how the law operates.

How Charter rights are engaged by these reforms is outlined in the Statement of Compatibility.

Improving the key features of the Racial and Religious Tolerance Act

This Bill repeals the Racial and Religious Tolerance Act and moves the serious vilification offences to the Crimes Act 1958 and the civil anti-vilification protections to the Equal Opportunity Act 2010.

Moving serious vilification offences to the Crimes Act will improve the visibility of these offences and further highlight the seriousness of this conduct. Moving civil anti-vilification protections to the Equal Opportunity Act will put anti-vilification laws alongside discrimination, sexual harassment and victimisation laws, creating a single accessible equality framework.

The important protections under the Racial and Religious Tolerance Act will be retained and further strengthened by improving how the law operates. People will continue to be protected from vilification based on their race, including their ancestry, nationality, ethnicity or ethnic origin. They will also continue to be protected from vilification based on their religion, which includes their lawful religious beliefs, views and religious activities.

The Bill will improve the serious vilification offences that prohibit extreme behaviour, civil anti-vilification protections that enable victims to seek civil redress, and protections from victimisation. Anti-vilification laws will continue to apply to vilification that occurs online.

The Bill also retains the civil exceptions to vilification, with some amendment, to balance Charter rights and ensure legitimate activities are not against the law.

The current terminology for vilifying conduct will also be retained. Anti-vilification laws will continue to only capture speech and conduct that is hateful, seriously contemptuous, reviling or severely ridiculing of another person or group. This can be seriously abusive, derogatory, intimidating or violent behaviour. Speech or conduct that is merely offensive is not intended to meet this existing threshold, and this balance is important to uphold the right to freedom of expression.

Expanding anti-vilification protections to more Victorians

The Bill expands anti-vilification laws beyond race and religion to also protect the attributes of disability, sex, sex characteristics, sexual orientation, gender identity and personal association with a person with a protected attribute. This will protect individuals and communities most impacted by vilification who have not previously been protected by anti-vilification laws.

The existing definitions under the Equal Opportunity Act will apply, providing broad protection that is consistent with how discrimination law operates. This includes protection for people living with HIV or AIDS, mental illness and drag performers.

The Bill clarifies that vilification complaints can be made on the basis of one or more protected attribute. This recognises that hate speech or conduct may be directed at a person for multiple reasons, for example, a person might experience hate speech because of their gender and race.

Introducing new serious criminal vilification offences

The Bill introduces new serious vilification offences that will apply to the expanded protected attributes and will make it easier to prosecute serious examples of hateful conduct.

It will be an offence, on the ground of a protected attribute, to:

• incite hatred against, serious contempt for, revulsion towards or severe ridicule of a person or a group (the incitement offence), or

• threaten physical harm towards another person or group or threaten to damage property (the threat offence).

Currently, it is not an offence to incite hatred unless a threat is also made. This Bill will ensure either hatred or threat is sufficient for criminal sanctions. The offences will apply to intentional and reckless conduct. Recklessness is still a high threshold to prove, which is appropriate to ensure these offences only capture the most serious conduct.

The offences will continue to apply to both public and private conduct and conduct that occurs online, including in members-only forums. Unlike the current offences, the new offences will be indictable offences, given the seriousness of the conduct they target. However, they will still be able to be determined in the Magistrates’ or Children’s Courts, when appropriate.

The Bill also makes it clear that the offences apply to conduct that has a link to Victoria. For example, the offences will apply to:

• a person living outside Victoria who creates a Facebook post threatening physical harm against a protected group with members in Victoria, and

• a person in Victoria who incites hatred against a person or group with a protected attribute.

Imposing higher maximum penalties to reflect the seriousness of the conduct

The current offences are punishable by up to 6 months imprisonment and/or a fine. The Bill will increase the maximum penalties to reflect the culpability and gravity of serious vilification.

The new incitement offence has a maximum penalty of 3 years imprisonment, and the threat offence has a maximum penalty of 5 years imprisonment. This recognises that while inciting hatred is serious, threatening actual physical harm to a person or damage to property is objectively more serious.

A range of sentencing options that fall below the maximum would also be available for appropriate cases, including fines, community-based orders and restorative justice options.

Introducing a political purpose defence for the incitement offence

The Bill introduces a defence for the incitement offence for conduct that is engaged in for a genuine political purpose. This will ensure consistency with the implied freedom of political communication and ensure that all Victorians feel safe to engage in legitimate political debate.

The defence is not available for the threat offence, as there should never be a genuine political purpose for threatening physical harm or damage to property on the grounds of a protected attribute.

Changing how prosecutions for serious vilification can be commenced

The Bill provides that only Victoria Police and the Director of Public Prosecutions (DPP) will be able to commence prosecutions for these offences. This will mean that private citizens are not able to commence prosecutions. This ensures there is a level of experienced prosecutorial oversight before a matter progresses to court, involving a consideration of whether there is sufficient evidence to support a conviction. It will not prevent any person from making a complaint to police when they think they have experienced or witnessed serious vilification.

Further, the Bill requires Victoria Police to obtain the DPP’s consent to charge an accused who is under 18 years of age with serious vilification. Consistent with the approach to the Nazi symbol and Nazi salute offences, this safeguard ensures children’s unique characteristics and vulnerabilities are considered before deciding to proceed with a prosecution.

Modifying the civil incitement-based protection

The Bill amends the civil incitement-based protection, to reflect how the courts interpret this protection, and to apply it to the expanded protected attributes.

The current incitement-based protection makes it unlawful for a person to engage in public conduct that incites hatred of another person or group because of their protected attribute. The Bill modifies this, to prohibit public conduct that is ‘likely to’ incite hatred, serious contempt for, revulsion or severe ridicule of another person or group based on a protected attribute.

Amending the protection to capture conduct that is ‘likely to incite’ reflects how the courts already interpret this protection and provides this clarity in the legislation.

Introducing a new civil harm-based protection

Importantly, consistently with recommendation 9 of the Inquiry, the Bill introduces a new civil harm-based protection to restrict hateful public conduct that is directed at a person or group because of their protected attribute. This protection ensures that the harm caused by vilifying conduct is considered from the perspective of the targeted person or group.

The Bill makes it unlawful for a person to engage in public conduct (because of a protected attribute of another person or group) that would, in all the circumstances, be reasonably likely to be considered by a reasonable person with the relevant attribute to be hateful, seriously contemptuous, reviling or severely ridiculing of the other person or group.

Whether the conduct meets the threshold for vilification requires an objective assessment from the perspective of a reasonable person with that same attribute and whether they would consider that conduct hateful, seriously contemptuous, reviling or severely ridiculing. This is an important safeguard to ensure that conduct is assessed objectively.

Additionally, whether conduct would ‘in all the circumstances’ be reasonably likely to be hateful will be considered in the context the conduct occurred, for example, the social, cultural, historical and other circumstances of the person or the people in the group. It will also be irrelevant whether a person knew their conduct was hateful, or was wrong about a targeted person or group’s protected attribute.

A person will be able to bring a complaint to the Victorian Equal Opportunity and Human Rights Commission (VEOHRC) or the Victorian Civil and Administrative Tribunal (VCAT) for a contravention of the harm-based protection if the person has the relevant protected attribute and they were part of the audience of the conduct. This will help to ensure that only people directly affected or targeted by the conduct, and not third parties, can bring a complaint.

Continuing to only capture public conduct for the civil protections

The Bill defines public conduct, to provide greater clarity about the conduct that can be captured by the civil incitement-based and harm-based protections. Currently, the law does not define what public conduct is.

The Bill clarifies that public conduct can be:

• any form of communication to the public, for example, public speaking, writing, displaying notices, playing recorded material, communicating through social media

• actions or gestures that are observable by the public, including the wearing or display of clothing, signs, flags, emblems and insignia, and

• the distribution or dissemination of any matter to the public.

The inclusion of a definition is not intended to change the law but provide much needed clarity. The civil protections only apply to public conduct, not private. Conduct that genuinely occurs in private, such as private conversations, will continue to not be captured by the civil anti-vilification laws.

Continuing to provide civil exceptions to protect legitimate conduct

The Bill retains the current civil anti-vilification exceptions to ensure legitimate activities are not against the law.

Exceptions apply to conduct or discussion that is engaged in, reasonably and in good faith, in:

• the performance, exhibition or distribution of artistic work

• the course of any statement, publication, discussion or debate for any genuine academic, artistic, public interest, religious or scientific purpose, and

• making or publishing a fair and accurate report of any event or matter of public interest.

The Bill modifies two of these exceptions: the religious purpose exception and the public interest exception.

The Bill modernises the definition of ‘religious purpose’ to align it with the wording of the right to freedom of religion and belief under the Charter. It defines a religious purpose as including, but not limited to, worship, observance, practice and teaching. This amendment is not intended to limit the right to freedom of religion and belief and the exception will continue to capture proselytising as it relates to the observance or practice of a religion.

The Bill modifies the public interest exception to protect conduct or discussion engaged in for any ‘genuine’ public interest purpose. This provides consistency with the exceptions for conduct or discussion engaged in for any genuine academic, artistic, religious or scientific purpose.

Extending VEOHRC’s existing powers to respond to vilification

The Bill extends VEOHRC’s existing powers under the Equal Opportunity Act to vilification.

Currently, VEOHRC can provide public education on vilification and report to the Attorney-General on the performance of this function. VEOHRC also provides voluntary dispute resolution services to resolve vilification complaints.

To better respond to vilification, including systemic vilification, VEOHRC will be able to:

• initiate investigations into systemic vilification in the community

• conduct voluntary dispute resolution, investigations, research and reviews of organisations’ programs and practices

• provide advice to organisations about preparing voluntary action plans

• issue practice guidelines

• provide information and public education, and

• intervene and provide information in court and tribunal vilification proceedings.

Enabling a representative body to bring an anonymous complaint to VEOHRC

The Bill enables a representative body, such as a religious or community organisation, to bring a vilification complaint to VEOHRC without naming the person they are representing.

Currently, a representative body can only bring a vilification complaint to VEOHRC on behalf of named people. This may deter some people from making a complaint because they are concerned about negative consequences for themselves or their broader community.

The Bill requires that before accepting a representative complaint on behalf of an unnamed person, VEOHRC must be satisfied that the person is entitled to bring a dispute, the person has consented to the dispute being brought on their behalf, and the representative body has a sufficient interest in the dispute. This will enable organisations to continue to support people through the voluntary dispute resolution process.

Clarifying that civil remedies could include an apology or financial compensation

The Bill clarifies the existing civil remedies available at VCAT for vilification complaints by providing legislative examples of the types of remedies that are available. This includes orders requiring a person to publish an apology or retraction, develop or implement a program, policy or training, or order the removal of material from an online publication.

Reviewing how these laws operate in practice

The Bill imposes a statutory review of the reforms to occur no later than five years after commencement of all the reforms, with a report tabled in Parliament.

This provides an important opportunity to monitor how these changes to the law operate in practice and consider further changes required to better address and respond to vilification.

I commend the Bill to the house.

Michael O’BRIEN (Malvern) (11:09): I move:

That the debate be adjourned.

Motion agreed to and debate adjourned.

Ordered that debate be adjourned for two weeks. Debate adjourned until Wednesday 11 December.