Tuesday, 1 April 2025

Bills

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

Second reading

Debate resumed on motion of Enver Erdogan:

That the bill be now read a second time.

Aiv PUGLIELLI (North-Eastern Metropolitan) (18:14): I rise to speak on this bill today, noting the many years that it has taken to see these laws brought before the Victorian Parliament. I will say from the outset that I am saddened to see that for much of the public debate around this bill and in the words promoting it from leaders in our community, no less the Premier of this state, the LGBTQIA+ community, who have fought long and hard for these reforms, have hardly been mentioned. Instead politicians have weaponised this debate to focus on their own political aims and their own personal ambitions in a political push to the community spanning a range of issues of their choosing, from public protests to the Myer Christmas windows. As I stated in my first speech to this chamber, I have seen my LGBTIQA+ community used as a perennial political football. We are championed for cynical political gain when it is electorally advantageous, but we are cast aside when it is politically expedient. For too long people in our community have been targeted and vilified just for being themselves. This is not on.

The Greens and the community, particularly members of the LGBTQIA+ community, have fought and campaigned for years now to see anti-vilification protections expanded and for reforms to come to the Victorian Parliament and be passed into law. Acknowledging these community campaigns, we are seeking to further expand the protected attributes to ensure that more people are protected, including those who may face vilification on the basis of homelessness, immigration status or sex worker status whether past or present. It is so important that we see this bill pass and work as it is intended to keep all marginalised members of our community safe from targeted hate and vilification.

Over the past few years we have seen some truly chilling events with increased levels of harassment, of abuse and of threats of violence directed at LGBTQIA+ communities as American-style far-right extremism becomes more prevalent in our country. Multiple family-friendly events held by queer people for the community have been cancelled due to threats. We have seen neo-Nazis emboldened and parading through our streets. Trans and gender-diverse communities have particularly faced escalating anti-trans hate over recent years with the Trans Justice Project and Victorian Pride Lobby report Fuelling Hate in 2023 reporting that one in two respondents had experienced anti-trans hate in the past 12 months. This is not acceptable in our state, and should this bill pass we still have a long way to go. We cannot legislate our way out of transphobia, homophobia and queerphobia, but we can hold people accountable for truly deplorable acts. That is what this legislation does: it draws a line in the sand between what is permitted as part of a public, robust discussion of diverse views that we celebrate here in the state of Victoria and what is hateful vilification – these targeted attacks on people for being who they are, for loving who they love. To best ensure this distinction we are seeking to move amendments to ensure that we are able to maintain this healthy, robust discourse and engagement here in this state and to clearly state in the purposes of this bill that its intention is to promote full and equal participation in an open and inclusive democratic society without impeding robust discussion. However, it is the targeted, vilifying behaviour that too often has been directed at people on the basis of being who they are and their personal attributes, often directed at members of marginalised communities like the LGBTQIA+ community and particularly directed by those in positions of power and privilege.

For this bill to operate as intended power dynamics and context must be taken into account as they exist in the community – the context of those who are empowered with a platform and those who are most vulnerable in our communities to the targeted hate that we have been seeing. To this end we are seeking to include via amendment the need for decision-makers to consider the circumstances of the conduct, including the social, cultural and historical circumstances. This consideration would extend to all relevant people – both the victim and the alleged offender in criminal cases and the plaintiff and defendant in civil cases – and would necessarily include the consideration of any power imbalances between the relevant people. In addition, we are seeking to amend the purposes of the bill to explicitly state that the intent of the bill must be to protect people that experience systemic injustice and structural oppression, including Aboriginal and Torres Strait Islander people. This tells courts, tribunals, the Victorian Equal Opportunity and Human Rights Commission, the police and the Director of Public Prosecutions that the intention of the bill is to safeguard individuals who face widespread entrenched patterns of unfair treatment that are built into the systems, into the institutions and into the laws of our society and that this should be taken into account when protecting those at risk of vilification but also that we should ensure that those who are marginalised and those who are vulnerable or disadvantaged are shielded from these laws being weaponised against them or applied to them in a discriminatory or an unjust way.

Because this legislation is not about criminalising a person’s right to practice their religion or to participate in our community or in a legitimate public discourse, it should not impinge upon democratic rights that are key to the freedoms we enjoy here in this state, including the right to public assembly, the right to political communication. These amendments will help guide how this legislation should work in practice and enforcement. Having to consider the context and power imbalances when responding to vilification will help in preventing further entrenchment of structural oppression and systemic injustice for all people in our state affected by these issues. We also see our marginalised communities often simultaneously overpoliced and underserved in justice outcomes, which is why guardrails are important around the introduction of these types of laws, and as such we will be seeking to retain the requirement for Director of Public Prosecutions consent for the prosecution for a serious vilification offence. Our amendments that I have outlined, I seek to circulate now.

Amendments circulated pursuant to standing orders.

Aiv PUGLIELLI: My colleagues and I have been on the public record with our concerns about the way the government have conducted themselves in bringing this bill before us. There is and has been throughout this term of Parliament a progressive pathway for the government to pass legislation that makes our community safer – better – for everyone. There should be no excuse for capitulating to campaigns from far-right groups who would see the continued vilification of marginalised communities, people targeted and vilified for being themselves under the guise of religion. We are therefore seeking to move amendments to the civil religious purpose exception within this bill. This is vital to ensure that LGBTIQA+ and other marginalised groups are protected from hate speech. As I have indicated for years now, we have seen people in positions of power and privilege in faith-based institutions use their platform to vilify and dehumanise members of our community on the basis of being who they are. This must end.

To best ensure the proactive elimination of vilification, we are also seeking to introduce an amendment for a positive duty for duty holders within organisations to take reasonable and proportionate steps to eliminate vilification in line with the positive duty under the Equal Opportunity Act 2010 that currently exists in relation to eliminating discrimination, sexual harassment and victimisation. This would help drive systemic change by encouraging organisations to consider practical ways of tackling hate in their community, thereby helping reduce the burden on individuals to bring forward a complaint.

We are seeking to amend a review clause for the government to consider further strengthening of the Victorian Equal Opportunity and Human Rights Commission powers in the Equal Opportunity Act as they relate to vilification. Our view is that the rolling back of the commission’s power in 2011 limited its capacity to enforce Victoria’s human rights legislation. Considering reinstating the commission’s powers was a recommendation from the inquiry into anti-vilification.

We are also keen to see the latest commencement date of the bill be brought forward from 18 September 2027 into this term of Parliament, and we will be supporting the amendment from Legalise Cannabis to this effect.

I will just take this moment to thank my colleagues on the progressive crossbench for their support and collaboration on improving this bill, for clarifying its intent. As always, it is a great pleasure to work together with Georgie, with Rachel and with David on our suite of amendments and to work together to achieve better outcomes for our communities. We have been clear with the government on our concerns in relation to what has been brought to this chamber, and thankfully the government has remained at the table with us. We will seek to improve the bill to clarify its intent and achieve lasting protections for the community via the amendments which I have foreshadowed. The Greens will not apologise for fighting tooth and nail with the government on these matters and for staying at the negotiating table to make sure this bill passes and it works as intended to keep our community safe from this vilifying behaviour, because this hate is not okay – it must end. To many in our community who have engaged in the process that has seen this bill come before us today, be it through inquiry, through consultations or through ongoing discussions with my colleagues and I or others in this place, we see you, we hear you. I commend this bill to the house.

Sitting suspended 6:24 pm until 7:27 pm.

Anasina GRAY-BARBERIO (Northern Metropolitan) (19:27): I rise today to speak on the Justice Legislation Amendment (Anti-vilification and Social Cohesion) Bill 2024 and join the calls of my colleague Aiv Puglielli. This bill, if enacted properly, could be a transformative tool in a climate beset by a rising tide of hate, discrimination, intimidation, violence and vilification in Victoria. The us-versus-them mentality that has taken hold in parts of our society poses a real threat to peace, unity and democracy. For too long, multiculturalism in this country has been framed around tolerance, as though we must simply endure each other’s differences. But tolerance is not enough. In fact it is an approach that undermines our connection to one another. We need to move towards acceptance, valuing and respecting our differences rather than othering those who do not fit the dominant narrative or the status quo of what is perceived to be normal. All this does is reinforce division and acrimony.

I note the urgent need and longstanding battle of marginalised communities, community organisations, community legal centres and human rights experts to expand legal protections in order to protect oppressed communities and their clients from abuse, vilification and violence. I want to emphasise the importance of ensuring these laws actually serve the challenges of these members of oppressed communities. People with disabilities, for example, struggle to navigate a world shaped by able-centric views that fail to recognise their experiences. They face ongoing vilification and harassment on the basis of their disability from strangers, from organised groups and even from people they know. The lived experiences of the disabled community are frequently ignored in policy decision-making. A 2022 survey conducted by the Australian Disability Network found that one in 10 Australians living with a disability had faced discrimination, rising to one in five for young people aged 15 to 34. Similarly, the LGBTQ community have long faced discrimination in workplaces, schools and public life. LGBTQA+ employees are twice as likely to be victims of workplace discrimination. Sixty per cent of young LGBTQA+ people aged 14 to 21 said they have felt unsafe at school. When these identities intersect, the harm is even greater – in fact for so many it is a life-or-death experience. LGBTQA+ people with disabilities are nearly three times more likely to experience discrimination compared to heterosexual people with disabilities. These are not just statistics. They represent real people, real lives and real harm. That is why lawmakers must take a targeted approach to address discrimination, break down systemic barriers and create policies that allow all communities to thrive.

I am proud to represent Northern Metro, home to a growing, diverse community, including many Muslim and Jewish families and individuals. In the past few years there has been an alarming and dramatic increase in hate crimes against the Jewish community and against the Muslim, Arab and Palestinian communities in Australia. All groups have long endured vilification, discrimination and hate speech, even prior to 7 October. We need to be speaking up for both these diasporas, not pitting them against one another or playing favourite child with one over the other. Too often mainstream media and political narratives fuel division. An example of this was the delayed announcement of the special envoy against Islamophobia, coming almost three months after the appointment of a special envoy against antisemitism. We need to stop with this kind of ethnic favouritism. It does nothing for inclusion, belonging and community safety. Social cohesion begins here in these chambers in Parliament across parties. It cannot be just words; it must be reflected in our actions, our laws and our commitment to community building and finding common ground. If we are going to get this bill right, we need to ensure both Muslim and Jewish Victorians – who are in pain, who are scared – are supported fairly and in a way that promotes harmony.

For far too long our current hate speech framework has failed to recognise the full spectrum of our social and cultural diversity. These reforms should not only prevent harm but also actively protect those who are disproportionately targeted. This includes stopping the dehumanising language used against Palestinians, Jewish people and protesters. We cannot allow such rhetoric to become normalised. As we know, prejudice escalates into racism, which escalates into violence. We have seen this play out in real time with the heavy-handed response to anti-war protests where peaceful demonstrators, including students, workers and community members, have been vilified simply for standing against injustice. Instead of addressing these concerns, we see them represented in the media labelled as threats and in some cases even criminalised for exercising their democratic right to protest.

While protections on the basis of race and religion have been critical, they do not plug all the gaps. Vulnerable Victorians – those with attributes such as disability, gender identity, race, religious belief or activity, sex, sex characteristics, sexual orientation or personal association – continue to face vilification and targeted abuse. The Greens have always been supportive of these communities having the opportunity to seek legal recourse when they are threatened or incited against. This bill is a critical acknowledgement that vilification based on any aspect of one’s identity is simply unacceptable. Even as we welcome these expansions we must ask: is this enough? The Greens continue to call for the inclusion of additional attributes, such as gender expression, bloodborne virus status, homelessness, immigration status and lawful sexual activity, to ensure that no-one is left unprotected.

This bill also proposes important reforms to the civil process. By expanding and strengthening civil protections, it offers hope that individuals who have been vilified might finally gain access to meaningful redress. It makes justice more accessible. Victims of vilification may now have a real chance of getting compensation, a formal apology or an injunction, and this is a critical advance for communities who have historically struggled with an often inaccessible legal system, including our LGBTIQA+ communities and disabled people, who until now have not been afforded the protections under the Racial and Religious Tolerance Act 2001.

However, access to justice is not just about laws. It is also about wraparound support, resourcing, capacity building and education. Many people facing vilification experience a silencing effect on top of struggling to navigate the complex legal system. Without extra funding for community legal centres and stronger powers for the Victorian Equal Opportunity and Human Rights Commission, legal protections may remain out of reach for those who need them most. It is essential that the government provides adequate funding and supports those who the bill seeks to help and protect.

Turning to the criminal provisions, this bill lowers the threshold for what constitutes hate-driven conduct and increases penalties. While dangerous and hateful conduct is never acceptable, we must tread carefully when criminalising speech. History has shown that without the appropriate safeguards, laws intended to protect can be weaponised against the very communities they are meant to serve.

We have seen time and again that marginalised people, whether they are disabled, culturally diverse or victims of gender-based violence, are at risk of being overpoliced and disproportionately targeted. Lowering the threshold for criminal charges, while well intentioned, raises significant concerns. We must ensure that these provisions do not inadvertently silence legitimate political expression or become tools for discrimination or weaponised. In our consultations with legal, human rights and community organisations a clear message has emerged: any reforms must be balanced with robust protections against misuse. For example, removing third-party oversight in prosecutions could empower law enforcement, but without proper checks it risks being weaponised against marginalised communities and undermining community trust.

Racism extends beyond harmful comments and needs to be rooted out of our systems, policies and societal norms. It happens in hospitals, where Indigenous Australians and Australians born overseas have higher preventable hospitalisation and mortality rates. It happens in schools, where high attrition and low levels of aspiration for further study have been connected to fear of cultural isolation or racism in higher education. It happens in the justice system, where Indigenous Australians are 14.5 times more likely to be incarcerated. It happens in Parliament, where there is a lack of power sharing with diverse groups, acknowledging inherent barriers for non-Anglo-Celtic people accessing political spaces. We all have a duty to recognise these barriers and address them at their roots. With that responsibility comes the need for care and consideration when engaging in public discourse, particularly around this bill and other legislation that could incite harm. Political leaders have a duty to debate laws in good faith, and this bill is about protecting people. That protection should extend to how we speak about communities both inside and outside this chamber.

The Greens stand for laws that protect every person’s right to live free from vilification and for a society that respects difference and champions inclusivity. We would like to extend a huge thankyou to a list of stakeholders, who have been very generous with their guidance, including the Victorian Aboriginal Legal Service, the Federation of Community Legal Centres, the Fitzroy Legal Service, the Human Rights Law Centre, the Jewish Council of Australia, the Islamic Council of Victoria and Equality Australia. We sincerely appreciate your time in shaping the amendments with us for this bill.

But we must also work to refine these proposals to ensure that they do not inadvertently create new forms of injustice. This bill is not just about legal reform. It is for the Muslim women getting their hijabs ripped off. It is for the security guard in Ballarat who had his turban ripped off. It is for the worshippers at the Adass synagogue attack in Melbourne. It is for every person with a disability, who often feels invisible in the eyes of the law. It is for every LGBTQA+ gender-diverse individual abused and attacked for their gender expression. This bill is about breathing out an unequivocal message: hate, discrimination, racism and vilification do not belong in this society. This government has a responsibility to ensure that this bill roots out racial and power inequalities and that this bill promotes full equitable participation and full protection for marginalised groups against hate, vilification, dehumanisation and incitement.

Jaclyn SYMES (Northern Victoria – Treasurer, Minister for Industrial Relations, Minister for Regional Development) (19:38): It is a privilege to have the opportunity of taking this bill through the house. Let me be absolutely clear: this bill is for the community and the many ordinary people who have been seeking better protections for years. The bill is not about protests. The bill is not for lawyers, for academics, for those who want to intellectualise about the theoretical good or application of the laws. These are practical reforms informed directly by the communities who seek better protection and continue to experience abhorrent vilification.

As people may have heard me say before, particularly when I had responsibility for this legislation, the bill is for the Muslim woman who told me she is fearful of using public transport because she has been previously vilified and threatened to be pushed off a tram for being black and for wearing the hijab; the parents of Jewish schoolkids who will not allow their kids to travel into the CBD wearing their school uniforms, a Star of David necklace or a kippah because of increased antisemitic attacks; and the young man who told me he is queer and has had to take absences from school because he is viciously bullied due to what he looks like.

I am certainly not saying that every community member agrees with the exact landing of each provision of this bill, but we have struck a balance that is practical and meaningful for diverse communities, particularly those that are seeking protection.

I will take the opportunity to just run through some of the amendments. The content of the bill has been well ventilated through previous speakers, but this will facilitate the next stage. There are a number of amendments that the government will not be supporting, the reasons for which I will explain. The opposition are proposing to remove the words ‘with the protected attribute’. There has been a lot of unhelpful back and forth about four little words in the civil protections in this bill. The reality is that this is a reductive tactic from those opposite. We cannot understate the inherent subjectivity of unlawful vilification. Whose perspective about what is relevant to assess if something is misogynistic – would that be a man or a woman? Whose perspective is more relevant to assess if a remark is antisemitic – a Jewish person or someone who is not Jewish? Whose perspective is more relevant to assess if a person with a disability was vilified?

The test of unlawful vilification from the objective standard of the reasonable person from the relevant group is one that courts and tribunals are really familiar with and is already used in other jurisdictions. I would point out it did receive bipartisan support in the recommendations handed down by the parliamentary committee inquiry. Amending the provision to remove the words ‘with the protected attribute’ would mean that the conduct that is highly offensive to the targeted group but perhaps not offensive to the broader community would not be captured by these laws. This completely undermines the intent of the harm-based test to protect the most vulnerable members of the Victorian community. We want to ensure that their specific lived experience of harm is truly understood and recognised and that there is a response. The bill retains this test because it recognises the fundamental fact: what may not bother or resonate with me, perhaps in the slightest, may be extremely harmful and cause significant distress to another.

Further, the government will not be supporting any of the amendments put forward by the opposition that have the effect of removing civil protections for Victorians. That those opposite are seeking to leave behind Victorians vulnerable to harm is not necessarily a surprise to many, but that is mainly because we are seeing time and time again the opposition held hostage by extremists in their party. This is despite the fact that community members have been advocating intensely for the civil protections in the bill for many, many years. Supporting the opposition’s amendments would in practice mean that civil anti-vilification laws would remain limited to just racial and religious vilification under the Racial and Religious Tolerance Act 2001. There would be no extension of protected attributes, no harm-based tests, no modification to the incitement-based test or civil exceptions and no extension of the Victorian Equal Opportunity and Human Rights Commission (VEOHRC) powers to better respond to vilification. This is a complete lost opportunity.

The Allan Labor government, and the Premier in particular, has been committed to providing protections to all. We, unlike those opposite, are not in the business of cherrypicking who deserves protection and who does not. I maintain that this is an opportunity to send a huge message about what we want Victoria to stand for and what community concerns we should be responding to, particularly to the community members who need protection.

Expansion of attributes has been set out in some amendments that have been put forward by Mr Puglielli on sheet AP49C. I would point out that there have been some substantial, good faith negotiations with members of the Council, including members of the Greens party. However, there are amendments that have been put forward tonight that were not subject to some of those discussions in any detailed way, and the tabling of these amendments was not something that we were actually expecting this evening.

The attributes amendments will not be supported on that basis and also because they were not a direct recommendation of the parliamentary inquiry; they were not recommended by the inquiry and therefore have not formed part of this bill, nor have they informed any meaningful discussion with the Greens party in that regard.

On the inclusion of a positive duty, the government will not be supporting the inclusion of a positive duty. It goes beyond the intention of the bill and would require significant community consultation to ensure that it is effective and efficient. Again, this was not part of the discussions with the Greens political party in any in-depth conversation in the consultation phase of this bill nor between it being introduced into the Assembly and now.

I understand that Mr Puglielli’s amendments also propose a review of reforms. There is already a statutory review clause in the bill, new section 189A, therefore it is my advice that the proposed clause would be duplicative and therefore should not be part of an amendment that we would be able to accept.

In positive news there are some amendments that the Greens have put forward that I can confirm will receive support from the government. There have been substantive conversations about these. I think people might remember that it was a deliberate position of the government to ensure, despite having 18 months to two years of consultation with community members in the development of the bill – when it was introduced to the Parliament we knew that there would be fresh attention on it – that we allowed for a lot of community consultation, particularly facilitated by members of Parliament. I do thank members of the Greens and particularly Legalise Cannabis Victoria for their positive engagement in that regard which has led us to some amendments that will be supported. I will run through those quickly.

The government will be supporting the Greens amendments that provide for a statement of intent with this bill; clarify that the reforms are intended to protect all Victorians and also protect Aboriginal and Torres Strait Islander people as well as people who have experienced systemic injustice and structural oppression; clarify that the bill intends to promote full and equal participation without impeding robust discussion that does not vilify or marginalise others based on a protected attribute; obtain DPP consent before prosecutions for alleged serious vilification can commence – and I might have a bit of a conversation with Mr Puglielli about that, because that is agreed to but with some hesitation; clarify that the word ‘circumstances’ also captures the social, cultural and historical circumstances; and clarify that the religious exceptions are intended to operate in conformity with the doctrines, beliefs or principles of the religion.

We will also be supporting Ms Payne’s amendments to bring forward the operation of the civil element of this bill to 30 June 2026 and the obvious consequences of repealing the act to June 2027.

We certainly have an opportunity to deliver practical and impactful reforms to Victorians through this bill. It is incumbent upon us as elected legislators to fulfil our duty in this regard. It is my contention that the opposition have clearly chosen to abandon this duty, and that is of course their prerogative, but in doing so they have sent many Victorians a clear message that they do not care about them.

I am proud of this bill, but it would be remiss of me not to put on the record that this bill is due to an enormous amount of cumulative hard work and emotional, painful and moving experiences. I would like to thank all of those who have participated in the process of getting us here, both in consulting on the bill but also in with the many submissions that were made to the parliamentary inquiry, which was a few years ago now. I would also like to thank the Attorney-General in the other place for all of the work that she has done to ensure that we are in this position today. I am not pre-empting the conclusion of the bill, but hopefully it will pass in the Parliament this evening.

I have said this before and I will say it again: it is a once-in-a-generation opportunity for us to protect all Victorians from hate and vilification. I commend the bill to the house.

Council divided on motion:

Ayes (22): Ryan Batchelor, John Berger, Lizzie Blandthorn, Katherine Copsey, Enver Erdogan, Jacinta Ermacora, David Ettershank, Michael Galea, Anasina Gray-Barberio, Shaun Leane, Sarah Mansfield, Tom McIntosh, Rachel Payne, Aiv Puglielli, Georgie Purcell, Harriet Shing, Ingrid Stitt, Jaclyn Symes, Lee Tarlamis, Sonja Terpstra, Gayle Tierney, Sheena Watt

Noes (17): Melina Bath, Jeff Bourman, Gaelle Broad, Georgie Crozier, David Davis, Moira Deeming, Renee Heath, Ann-Marie Hermans, David Limbrick, Wendy Lovell, Trung Luu, Bev McArthur, Joe McCracken, Nick McGowan, Evan Mulholland, Rikkie-Lee Tyrrell, Richard Welch

Motion agreed to.

Read second time.

Committed.

Committee

Clause 1 (19:57)

Evan MULHOLLAND: I will start by saying that this bill is a significant piece of legislation in addressing an urgent issue in Victorian civic life. Sadly, we have seen an unprecedented rise in prejudice-fuelled hatred, violence and assaults on our streets, and it is deeply shameful that Victorians of certain faiths feel unsafe visiting central business districts or attending places of worship. It is also deeply disappointing that we have had members of certain political parties in attendance where hateful things were said and that they have had no condemnation whatsoever.

I will point out that we welcomed the provision allowing Victoria Police to bring charges for prejudice-motivated crimes without requiring the approval of the Director of Public Prosecutions, the DPP. Since its introduction in 2001, the Racial and Religious Tolerance Act 2001 (RRTA) has resulted in only four convictions, despite a far higher incidence of prejudice-fuelled crimes. Victoria Police has sought to lay charges under the act only to be blocked by the DPP, and removing this barrier, except in cases involving minors, where oversight remains appropriate, would have been a positive step.

Can I restate that the Liberals and Nationals fully support the expansion of the list of protected attributes beyond race and religious belief to include disability, gender identity, sex, sex characteristics, sexual orientations and personal association with individuals possessing these attributes. These communities are some of the most vulnerable in our society and they deserve legal protections rather than smears about the position of the Liberals and Nationals. We do support the expansion of those attributes, and we fully support the criminal provisions in the bill. What we do not support is the reasonable person test – that is, conduct that may be reasonably likely to be considered by a reasonable person with the protected attribute to be hateful or seriously contemptuous of, or reviling or severely ridiculing, the other person or group of persons. Legal tests must be and should be objective, as is the concept of a reasonable person, but the government moves away from the reasonable person in this new harm-based civil protection and now it is only the reasonable person with the protected attributes.

Minister, since its introduction in 2001 the Racial and Religious Tolerance Act has resulted in only four convictions despite a far higher incidence of prejudice-fuelled crime. Do you believe that removing the provision allowing Victoria Police to bring charges for prejudice-motivated crimes without the prior approval of the Director of Public Prosecutions would be a weakening of these laws?

Jaclyn SYMES: I thank Mr Mulholland for his question, although he is asking me for an opinion, which I am not inclined to provide. But I will have a conversation with you about some of the comments you have made and indeed the applications. First of all, I was a little concerned about the way you articulated the past experiences of four particular cases being blocked by the DPP. I think that is a really unfair characterisation of the important work that the DPP do. The DPP’s job is to assess the case and the prospects of the case and whether it is both in the interests of justice and has any prospects of actually being successful should they proceed with it. For the DPP to just wave through cases would be not advancing the interests of justice and in fact that is not their job. I think the changes in the proposed bill will mean that the thresholds are lower, which means that both police and the DPP will have stronger cases against people who offend these laws.

I am accepting of the Greens amendment for the inclusion or the retention of DPP oversight and approval for some of the reasons that they have raised. There is some merit in that. But I do pick up on your hesitation, Mr Mulholland, because I share it in that in some instances it may be a barrier or an administrative burden, and it might clog up the courts and slow things down. I think this is about balance. I think if the Greens have convinced the Attorney-General that this is an amendment worth supporting, it is something that we should keep an eye on because I do not think the intention of the Greens is to create any barriers. It is about protection. There is an argument that we should not dismiss that in certain circumstances it may actually slow things down. I think we should keep an eye on this, but that is not to put a different position to the Attorney in accepting the amendment that the Greens are putting forward.

Evan MULHOLLAND: I might ask some questions of the Greens, if that is all right, and I will go back to the minister. I am happy to have it as free-flowing as possible and leave it all on clause 1 for the benefit of the chamber. If we want to wait till the clauses I am happy to wait for the clauses, but I would have thought that we do not want to be here all night.

The DEPUTY PRESIDENT: Sorry, Mr Mulholland. What are you seeking to do?

Evan MULHOLLAND: I am just seeking to put some questions on the Greens amendments.

The DEPUTY PRESIDENT: We probably do have to wait until they are moved.

Evan MULHOLLAND: That is all right. I am happy to do that.

Aiv PUGLIELLI: For the benefit of the house, we will be withdrawing the amendments under sheet AP49C.

Evan MULHOLLAND: The government, just from reading the second-reading speech of the minister in the lower house, talked up the involvement of both Victoria Police and the DPP to commence prosecutions. As the Minister for Police would, in talking up the involvement of Victoria Police in seeking to have the effect of strengthening the cases in this bill, he said that this would address the risk of improper prosecutions and that a similar safeguard could be found in New South Wales. That is from the government’s own second-reading speech. Wouldn’t removing Victoria Police allow for more improper prosecutions?

Jaclyn SYMES: No, Mr Mulholland, because the DPP would have to still make an assessment.

Evan MULHOLLAND: At a public hearing on Thursday 25 June 2020 Luke Cornelius said in his evidence to the committee that in regard to the numbers being low for anti-vilification instances:

… the test in relation to intent is a challenging test to satisfy in terms of us discharging our prosecutorial burden in terms of proving intention. And I suspect that the difficulties that we have encountered in prosecuting these offences are because of evidential challenges in that regard have had a chilling effect on us bringing prosecutions under this legislation.

As police have argued, hasn’t this been a barrier for many vilification cases proceeding?

Jaclyn SYMES: Mr Mulholland, the barrier has been the thresholds in the laws. As you have indicated from the comments that you have read out, it is not that there was a lack of incidents; there was a lack of ability for charges to proceed given that it was difficult to prove the elements, which is what we are seeking to address in this bill. What we have done in particular with the criminal offences is we have separated them into two offences: one for incitement of hatred and one for threats. As you have cited the inquiry, I will do the same. They noted that requiring proof of both incitement and threat made the current offences complex and difficult to prosecute. Since the current offences were introduced, there have only been two successful prosecutions, and both the inquiry and the government were convinced that lowering the thresholds would bring about the ability for more charges and more enforcement through the courts.

You are trying to assert that the DPP was the reason that there were low prosecutions. I would contest that assertion and say that it was in relation to the unworkability of the offence, which is what we are seeking to address through this bill.

Evan MULHOLLAND: The government particularly were keen for the assurity of the Parliament, as there were several concerns raised, to add preaching and proselytising back into the religious purpose defence. What do you think the intention was of inserting a line to the end of the amendment that it be in conformity with the doctrines, beliefs and/or principle of that religion? What do you think the intent of that would be? Would the intent of that be to limit religious freedom and limit the religious defence?

Jaclyn SYMES: I will start with the first component of your question because I think you are jumping ahead to amendments that have not been formally put yet. I think that would be where you are going with that question, but you did start with amendments that have been made in the Assembly. The bill does retain the current civil religious purpose exception to exempt conduct engaged in reasonably and in good faith for any genuine religious purpose. I think you suggested that proselytising was an addition in an amendment. My understanding is that was actually not the addition; the addition was preaching. In the Legislative Assembly it was proposed to include specific mention of the word ‘preaching’ in the religious purpose exception. The amendment was passed. Preaching and proselytising are already captured by the civil religious purpose exception and will continue to be. However, including specific mention of the terms as examples of a religious purpose provides faith communities with greater certainty that these religious activities will continue to be exempt from civil anti-vilification laws. You have gone on to then, I think, conflate your question with the proposed amendment of the Greens to add in some clarifying terminology, which I would contend is consistent with the purpose of exempting conduct engaged in reasonably and in good faith for any genuine religious purpose.

Evan MULHOLLAND: I will not ask about hypothetical amendments. I will speak to your current position, and your current position provides a default commencement date of 18 September 2027 for the civil provisions, while the criminal provisions have a default commencement date of September 2025. The government have explained a number of things needing to occur between now and then in terms of resourcing – in terms of preparing for the introduction of that. Is that date still appropriate in terms of all the preparation for those laws to kick in?

Jaclyn SYMES: As you have identified, it is the government’s intention to commence with the criminal elements in the first instance. It very much came through in our stakeholder consultation. As you would appreciate, I led the majority of that in my previous role. It was certainly the priority of the vast majority of stakeholders that the criminal reforms should be brought into effect as soon as possible. There was general consensus that the civil elements could be delayed to ensure that we have the ability to educate, communicate and be ready for the operation of this system.

It is expected that the criminal elements will be relatively straightforward. Victoria Police are pretty confident they know what type of behaviour will fall foul of these laws. When it comes to the civil component, Mr Mulholland, the success of these laws will be them not being exercised very often. If the community education is right, the messaging is right and people are more aware of what is appropriate and what is not in the public, I would hope that we would not be overrun with complaints, because it has been well ventilated what is acceptable behaviour in the state of Victoria. The delay in implementation of the civil elements will hopefully facilitate that outcome.

Evan MULHOLLAND: Just to go into the detail of what has been previously said, the explanatory memorandum states at clause 2:

The timing of the commencement of the civil provisions is to ensure that affected stakeholders and entities responsible for the delivery of these reforms, have sufficient time to complete all necessary implementation and readiness activities prior to commencement of the reforms in new Part 6A of the Equal Opportunity Act 2010 and the repeal of the Racial and Religious Tolerance Act 2001.

If that date, 18 September 2027, is brought forward, doesn’t this mean the affected stakeholders and entities responsible for the delivery of these reforms will now not have sufficient time to complete necessary implementation activities?

Jaclyn SYMES: No. On the contrary, Mr Mulholland, it was with great consideration that we put in a default commencement date of September 2027. I was very conscious at the time, when we landed on that date, that it would be preferable to bring it forward. We gave ourselves quite a buffer, I would say. I was not wanting to necessarily hold out to September 2027, and it was always on the condition that the reforms could commence earlier by proclamation, but as I have outlined before, it is the intention of the government and connected agencies to ensure that these laws are well communicated. As I said, the less people breaching these laws or having these laws apply to them the better. In relation to potential opportunities for bringing the commencement date to before September 2027, we have considered that that would be an achievable outcome.

Evan MULHOLLAND: Minister, if the Victorian Equal Opportunity and Human Rights Commission (VEOHRC) and the Victorian Civil and Administrative Tribunal do not have sufficient time to prepare for these significant changes, won’t this risk undermining the protection that the law is supposed to provide?

Jaclyn SYMES: Mr Mulholland, I am quite conscious of the fact that in this place we represent other ministers and other members of Parliament, and you are required to ask some questions that have been prepared for you, but I just answered that question in my previous response.

Evan MULHOLLAND: I will go with another question. Given Court Services Victoria, which funds VCAT, has a $19.1 million budget cut this financial year and is scheduled to receive a further budget cut of $58 million in 2027–28, how does the government expect VCAT to cope with the new jurisdiction of this bill at the same time as this government is ripping money of out of VCAT’s budget?

Jaclyn SYMES: You do not even have to pretend that you did not write that question. I do not support the premise of your question. As I said, the government has considered the operational ability of these laws. The reforms will have funding, because of course there will be resource implications for VEOHRC and VCAT, Victoria Police, the Office of Public Prosecutions and other justice entities. The funding of the entities tasked with implementing these changes to the law will be subject to the usual budget processes, but as you have just indicated, they do not commence until 18 September 2027 at the latest.

Evan MULHOLLAND: Members of Parliament were advised in the Attorney-General’s bill briefing that similar law reforms in Scotland had led to an explosion of civil claims immediately upon their coming into operation. Can the government guarantee the same will not occur in Victoria, particularly as it is tightening the timeframe?

Jaclyn SYMES: Mr Mulholland, it was certainly the government that brought this information to the attention of other parties during our briefing and preparation of the bill. This is also why we are keen to have a staggered commencement, particularly in relation to the civil proceedings. The new hate offences in Scotland came into force in April 2024, including offences for threatening or abusive behaviour intended to stir up hatred based on prejudice towards protected characteristics. We understand that after an initial influx of reports to police reporting significantly reduced and stabilised. The Scottish Police Authority has noted that there was no impact on frontline policing and no material burden or additional workload for officers and contact centre staff.

The new criminal offences in Victoria may have some resourcing implications for the courts and other criminal justice stakeholders such as VicPol due to the potential increase in investigations and prosecutions, but this will be closely monitored following the commencement of the criminal reforms, and in relation to the civil reforms that is the exact reason that we were keen to ensure that we have education and information and we are prepared for day one of operation.

Evan MULHOLLAND: Minister, you have said there will be resource implications for VEOHRC and VCAT. Will there be additional funding for VCAT and VEOHRC as a result of these changes?

Jaclyn SYMES: Again, Mr Mulholland, two answers ago I explained that the resourcing of the entities that are responsible for these laws will be subject to funding bids in the normal budget process.

Evan MULHOLLAND: Minister, as part of the bill briefing process in questions on notice that came back, in response to a question about cases where Victoria Police have sought to lay charges but the DPP has not consented, the Attorney-General’s office said, ‘Yes, we believe there are cases where Victoria Police have laid charges and the DPP have not consented to a prosecution being commenced.’ Would removing Victoria Police from this process have the effect of weakening this bill, given the Attorney-General’s office has confirmed that there were cases where Victoria Police had laid charges but the DPP had not consented?

Jaclyn SYMES: Mr Mulholland, again, you are using experiences from the previous laws to try and formulate an argument that there is an issue with DPP inappropriately rejecting charges. The DPP’s job is to ensure that there is a prospect of conviction. That is one of their considerations, and by virtue of changing the threshold and the elements of the offence, that is what will bring about more prosecutions and charges of police proceeding to the courts. VicPol can still seek to prosecute; they just need DPP consent. There are model requirements that the DPP apply to consideration of proceeding with cases, and that is what will apply here.

David LIMBRICK: I would like to pick up a couple of points that the minister spoke about before with regard to the success or otherwise of this bill. I have spoken with the minister about this previously, and I think the minister mentioned that success of this bill would be where it is used infrequently. Is that how we would judge success of this bill?

Jaclyn SYMES: Mr Limbrick, you and I have had this exchange I think before. When you create laws that are in response to behaviour in the community that is unacceptable, you would hope to see a deterrence. You would hope to see an empowering of the majority of the community, who understand what is appropriate and what is not. You would hope that that creates a disincentive for people to act in a manner that is completely abhorrent. We are seeking to ensure that for those that engage in behaviour that causes significant harm and vilifies people based on who they are. I would not like to see lots of charges in this regard. I recognise that it will send a strong message when charges are laid, but the more infrequent they are, the more I would personally count that as a success of government policy. Knowing that you have the ability to take matters to a civil environment that provides the opportunity to explore these issues and educate people will have a positive impact on the community, and I think that hopefully you will see less and less of the need to have these matters dealt with – whether it is through the civil or the criminal systems. Is that a formal measurement? No. That is just what I bring in my approach to laws that are commenced under me as Attorney-General.

David LIMBRICK: The existing regime is under the Racial and Religious Tolerance Act 2001. It was said by the minister earlier that that is used very infrequently currently. It would seem that this is not a good metric of measuring the success or otherwise of this type of law. If we are saying the existing regime does not get used very often and therefore it is not good, and we expect the new regime to not get used very often, is it not the case that this is a very poor metric?

Jaclyn SYMES: It is not a formal metric. What I would base it on, Mr Limbrick, is that under the current system you have got people saying they would like to be able to bring cases and they cannot meet the threshold. Under the changes, we will not have that as the reason that there are infrequent cases, and so that is not a comparable way to describe my view of not having to charge people under these laws.

David LIMBRICK: I would like to ask a question about the amendment to the Bail Act 1977 in clause 40. What was the genesis of this amendment? This is relating to bail for performance of Nazi gestures.

Jaclyn SYMES: As you would appreciate, Mr Limbrick, I am returning to a bill that I left some time ago, but yes the amendment to the Bail Act was picked up and added to this bill as an appropriate vessel. It was required to ensure a consistent bail response to those accused of the display of Nazi symbol offence and the performance of Nazi gestures offence. The need for consistency was highlighted in a case last year where there was an individual convicted of performing a Nazi salute in public on 9 October 2024 and was sentenced to one month imprisonment on 8 November 2024. During the hearing the court indicated that the individual would not be remanded until sentencing despite indicating that it would impose a custodial sentence. In the context of the bail decision the magistrate commented that the discrepancy between the availability of remand for the display offence and the performance offence was anomalous and suggested that it be rectified. That is what we are proposing to do through this bill.

David LIMBRICK: If I recall correctly, we had a very similar discussion when that salute bill went through Parliament. I believe I asked the Attorney at the time about the success metric of this bill. I think the response was something along the lines of ‘If the law is successful, it won’t be used. It’ll be an effective deterrent.’ Was it not the case that only days after it came into effect someone was actually charged with this law?

Jaclyn SYMES: Mr Limbrick, we created a law to apply in appropriate cases.

David LIMBRICK: If the minister would recall, I had the concern at the time – and I still hold that concern, and I would be interested in the minister’s response – that this type of law would effectively create martyrs for these types of extremists. Wasn’t I correct in what actually happened?

Jaclyn SYMES: Mr Limbrick, obviously the laws have not been in place for very long. I have not seen a prolific display of people breaching the laws. This individual was sentenced to one month imprisonment for flouting those laws.

David LIMBRICK: Is the minister aware that this movement that this individual belongs to has been using this conviction as a method of recruitment?

Jaclyn SYMES: Mr Limbrick, the laws that passed the Parliament were in relation to preventing and responding to really hurtful conduct in the community – that is the purpose of that legislation. That individual was conducting that type of behaviour before the legislation came into effect as well.

David LIMBRICK: I would say that that means that the legislation has not been effective, nevertheless. Earlier on there was some discussion, in fact in the minister’s summing-up, about the backwards and forwards between the government and the opposition about the reasonable person test of someone with a protected attribute. If someone is a reasonable person without the protected attribute, how would they know what is or is not offensive to someone with the protected attribute? How would they know what is offensive to all of these different classes?

Jaclyn SYMES: Can you clarify the person that you are expecting to form that view, and are you referring to the courts?

David LIMBRICK: No. I mean someone expressing some view, a member of the public. They have to obey these laws, and the minister said earlier the best person to understand whether or not something is offensive is a person with that particular attribute. Therefore the implication is that someone without that attribute would not understand what is and is not offensive. Therefore people communicating ideas could not understand, according to the minister’s own definition, whether or not something is offensive to someone with that particular attribute.

Jaclyn SYMES: Mr Limbrick, as you have identified in my summing-up, I made the points of why it is imperative that we have a test that refers to the protected attributes of people and people from that perspective. It is the whole purpose of the test. It is the fundamental component that will make this law meaningful. I think what you are referring to is potentially concerns about whether someone would inadvertently contravene these protections because they were unaware that it was offensive or perhaps not offensive enough. There are still reasonably high thresholds that people have to meet before saying something that is merely offensive – if it is merely offensive it is not going to meet the test. But could a person inadvertently contravene the harm-based protection if the harm is assessed from the perspective of a reasonable person with the protected attribute is the question I think that you are getting to, and the answer would be no. It is unlikely that a person would inadvertently contravene the harm-based protection because of the threshold of the harm-based test being high. It captures conduct that is hateful, seriously contemptuous, reviling or severely ridiculing of another person or group because of their protected attribute. It would not capture conduct, as I said, that is merely offensive. The proposed test is also consistent with comparable jurisdictions and therefore has been seen in operation.

David LIMBRICK: So if it is possible for a reasonable person without a protected attribute to understand what is and is not offensive to someone with a protected attribute, why does the test have to be someone with that protected attribute? That does not make logical sense, does it?

Jaclyn SYMES: This is about the harm that it causes and responding to that harm. What is said to one person is potentially meaningless to another. Assessing harm from the position of a reasonable person with the same protected attribute recognises that people from different groups may have different lived experiences. Some types of conduct are incredibly hurtful and incredibly harmful to certain groups due to the way those kinds of conduct have been used to demean or potentially exclude them. For example, this would allow VCAT and the courts to consider the context of the Holocaust and Jewish people’s experiences of violent antisemitism when considering whether the alleged antisemitic conduct towards a Jewish person is reasonably likely to be hateful. It is important again, as I stressed in my earlier answer, that the threshold of the harm-based test is high. It does only capture conduct that is hateful, seriously contemptuous, reviling or severely ridiculing, and does not capture low-level offensive commentary. As I have outlined in a variety of reasons, Mr Limbrick, this is a test that is not something that we have made up. This is ensuring that we are responding to the people who have been experiencing unacceptable conduct that we think should be addressed through changes to our legal settings.

David LIMBRICK: There are many things that someone could say that someone with a protected attribute might find highly offensive that the person saying it would not be aware of. I find this quite strange, the idea that someone who does not have a protected attribute cannot say something without knowing that it is offensive. Isn’t that an odd and illogical position – because in order for me to understand whether or not something is offensive to someone with a protected attribute, I have to first understand that person’s perspective, and if I do not understand that person’s perspective, I could inadvertently, quite happily, do something that is very offensive to that person, surely, couldn’t I?

Jaclyn SYMES: Inadvertently and happily engage in conduct that is hateful, seriously contemptuous, reviling or severely ridiculing of another person because of a particular attribute? I do not agree with your position.

David LIMBRICK: There are many cases of this, in fact. There are many people that find talking about scientific reality offensive. I do not accept the idea that someone might just simply state reality and someone might be offended by that.

Jaclyn SYMES: It will not be captured.

David LIMBRICK: Why won’t it be captured?

Jaclyn SYMES: Stating a fact about a scientific belief is not going to be captured by laws that are about ensuring people are not vilified because of a protected attribute.

David LIMBRICK: That is an interesting response. I will go on to some of these terms that are in the explanatory memorandum. It does provide some guidance for ‘incite’ and what it means. It specifies ‘hatred’, ‘serious contempt’, ‘revulsion’ and ‘severe ridicule’ – they are intended to take their ordinary meaning – and it excludes, in these terms, ‘mere contempt, distaste and ridicule’, ‘seriously unkind’ conduct and ‘bad thoughts’. But it does not define the comparison between these terms. How do we determine whether something is distasteful or ridicule or severe ridicule, for example, or unkind conduct compared to hatred?

Jaclyn SYMES: Mr Limbrick, as with the Racial and Religious Tolerance Act, which has been in place for some time, the bill does not define these terms, but as is very often the case when we create laws, we look to the courts in relation to how they would apply them. The courts have considered the terms, and they should be given their natural and ordinary meaning and describe the strongest possible or extreme feelings of dislike. The ordinary dictionary meaning of ‘hateful’ is to detest or to excite a strong passionate dislike. ‘Seriously contemptuous’ is to regard something as seriously vile or worthless. ‘Reviling’ is to criticise in an abusive manner, and ‘severely ridiculing’ is conduct that excites severe derision. These terms are intended to capture the more serious types of conduct and not conduct that is merely offensive or the terms that you referred to in your question.

David LIMBRICK: Is it the case that religious extremists have protected attributes as well under this law?

Jaclyn SYMES: It is difficult for me to provide a case-by-case answer to different people’s attributes when you have just given me a broad view of somebody. It depends on their attributes and if they have been offended.

David LIMBRICK: I will make it clearer then. If this bill is enacted, will it be legal to ridicule religious extremists?

Jaclyn SYMES: Mr Limbrick, as I said, referring to my previous answer, it is unclear what the hypothetical example you are referring to involves in relation to what somebody has been ridiculed for, but as is regularly the case in legislation such as this, I cannot be drawn into case-by-case applications of the law.

David LIMBRICK: I am not talking about hypotheticals; I am talking about real application of this law. Many terror groups have their origins in religious beliefs. Therefore aren’t terror groups in some way protected by this type of law? They have the protected attribute of their religious belief, surely.

Jaclyn SYMES: Mr Limbrick, I have answered your question.

Gaelle BROAD: I would like to ask a question about part 2, the criminal provisions, and clause 4, which inserts new division 2D, ‘Serious vilification’. New section 195M, which is about the definitions, expands the list of protected attributes in the criminal law, and new section 195N creates a new criminal offence of ‘Incitement on ground of protected attribute’. Part of the legal test in new section 195N(1)(a) is that a person:

… engages in conduct that is likely to incite hatred against, serious contempt for, revulsion towards or severe ridicule of, another person or a group of persons …

Why has the government chosen a legal test that does not require the conduct to have the prohibited effect?

Jaclyn SYMES: There were a lot of references to clauses, so it took me a while to follow your question. Let me see if I give you the right answer, and that will determine whether I understood your question right. ‘Conduct that is likely to incite hatred’ means conduct that a reasonable person would have known or foreseen would be likely to incite hatred. It is an objective test. For example, in Cottrell v. Ross, 2019, when the court considered whether the accused conduct was likely to incite serious contempt for a group with a protected attribute it found that posting a hateful video on social media to a group of like-minded followers was likely to incite serious contempt. The current offences require proof that an accused intentionally engaged in conduct they knew was likely to incite hatred, as you have indicated. The inquiry recommended replacing this subjective test because proving that an accused actually knew their conduct was likely to incite hatred is difficult, and that is where we fall into some of the issues that Mr Mulholland was referring to in relation to the operability of the previous laws that we are seeking to replace.

Gaelle BROAD: Why is ‘likely to’ sufficient to constitute a crime that can lead to three years jail?

Jaclyn SYMES: As I indicated in my previous answer – and I gave you some case examples, Mrs Broad – what we are concerned about is that the existing laws are not being used to respond to this concerning behaviour, and that is what we are seeking to address. In relation to the incitement offence, it captures offences of any activity or combination of activities that meet the offence thresholds. As I said, it can include a range of really harmful activities, but there are still standards that apply. New offences and making them easier to apply to this conduct were a large consideration of the parliamentary inquiry, because their recommendation was that offences should apply to both intentional and reckless behaviour. This was recommendation 20. The fault elements refer to an accused’s state of mind at the time they are alleged to have committed the offence – they are ‘intentional’ and ‘reckless’ for that reason. They were some of the considerations. In relation to the penalties, that is what was deemed a maximum appropriate penalty for such offensive behaviour.

Gaelle BROAD: Why does the government believe that severe ridicule is a necessary part of the criminal definition in section 195N? Hatred is a higher bar, but severe ridicule lowers the bar for an indictable offence.

Jaclyn SYMES: Mrs Broad, this is terminology that has existed in the RRTA for some time and in other jurisdictions, and it has been demonstrated to be an appropriate element for proving vilification. There is case law to that effect.

Gaelle BROAD: There is no carve out for private conduct in this offence. Can the government rule out that a person telling a poor joke in their own home could be guilty of committing an offence if the joke was severely ridiculing of a group of people with a protected attribute?

Jaclyn SYMES: I think that is a big leap that you are taking from expressing the impact of a joke. The legislation and the position of the government is that Victorians are entitled to hold opinions without interference and to seek, receive and impart information and ideas of all kinds; we accept that that is part of a healthy democracy, and we think it is vital to political discourse. This is not what this bill is about, but articulating opinions in a way that incites hatred against a person or group or threatens people and property is not something that we would maintain is remotely acceptable nor is it protected under the charter or the Australian constitution. The serious vilification offences prohibit serious hateful conduct that would be likely to incite hatred, serious contempt, revulsion or severe ridicule against a person or group or threaten physical harm or property damage; they are significantly higher thresholds than expressing an opinion or making a distasteful joke at the expense of a person or group.

Gaelle BROAD: Sorry, can you just clarify that? I guess I just want to understand: is there any exemption for people telling jokes?

Jaclyn SYMES: Mrs Broad, as I said, it is a high threshold; expressing an opinion or making a joke at the expense of somebody else is exactly what I am saying – it is about expressing an opinion or making a joke at someone’s expense. What we are trying to capture is conduct that amounts to serious vilification – that is, hateful conduct that would be likely to incite hatred and basically encourage people to inflict violence or exclude someone or hurt someone or chase them. This is the conduct that is happening out there in relation to incitement. Having a poor joke is not something that I would encourage, but there is no specific exemption; the behaviour that we are trying to prevent is not normal conversation as you have articulated it.

David LIMBRICK: I would like to ask the minister: on the jurisdictional limits of this law, does someone committing these offences have to reside in Victoria?

Jaclyn SYMES: Mr Limbrick, I have got a bit of information obviously on this. So the offences will apply to conduct where there is a direct link to Victoria – for example, if an accused outside Victoria engages in inciting or threatening conduct on the grounds of a protected attribute towards a person or group, offences will apply. We are not seeking to regulate all vilifying conduct that occurs beyond Victoria’s borders; the offences will only apply to conduct where there is a direct link to Victoria. Where there is no link to Victoria via the accused or the person or group the conduct is directed at, the offence will not apply. Obviously there are enforceability issues in relation to the online world and the like, not to mention the identification of those that may offend the laws. There will be challenges and complexities in regulating transborder criminal conduct, as there are in a range of offences of this nature.

David LIMBRICK: There is a recent case – I know the minister will be reluctant to talk about actual cases – where a Victorian was the offender against someone in Queensland. This woman was a breastfeeding expert, and someone who was a biological male claimed that they could breastfeed. This woman said, ‘No, men cannot breastfeed’, and she was dragged before the Queensland Human Rights Commission. Are you saying that we could do the same thing to Queensland, for example?

Jaclyn SYMES: Victoria Police have various investigative powers which allow them to investigate conduct that occurs outside Victoria in order to decide whether there is sufficient evidence to charge an individual with a criminal offence in our state. Victorian law enforcement agencies regularly engage with their colleagues in other jurisdictions, which is likely what happened in the example you have provided. This can extend also to Commonwealth and international jurisdictions, all with the view of investigating and enforcing Victorian laws that involve accused from outside Victoria. If Victorian laws do not apply, another jurisdiction’s may apply. For example, the Victorian serious vilification laws would not apply to a person in New South Wales who threatens physical harm towards another person in New South Wales on the grounds of religion, because there would be insufficient link to Victoria. However, the conduct may be captured by New South Wales laws.

David LIMBRICK: Earlier the minister expressed surprise or bemusement at the idea that someone could get in trouble for stating scientific reality, but that is exactly what has happened in this case in Queensland. Surely the exact same thing could happen here, couldn’t it?

Jaclyn SYMES: Stating an opinion of fact would only be captured by these laws if it goes to vilifying somebody on the grounds of an attribute.

David LIMBRICK: And that is what happened in this case, apparently. I would like to go to clause 13, which talks about the disputes process. As per clause 13 dispute resolution is voluntary, but how effective will unnamed representation be if respondents can opt not to participate against representative organisations at their discretion?

Jaclyn SYMES: Mr Limbrick, I might just take you through the policy rationale for us landing here. Currently representative organisations such as religious or community organisations can bring a vilification dispute to VEOHRC or an application to VCAT on behalf of a named person or group. To bring a complaint, each represented person must be entitled to bring a complaint and consent to it being brought on their behalf by the organisation. The representative body must also have sufficient interest in the complaint, and if it is brought on behalf of more than one person it must be in relation to the same conduct. The bill before the Parliament today enables a vilification dispute to be brought to VEOHRC on behalf of an unnamed person to recognise that in some circumstances people may not feel comfortable putting themselves forward or safe to identify themselves through a dispute resolution process. This is something that was also picked up by the inquiry in recommendation 29 to enable a representative organisation to bring a complaint to VEOHRC without needing to name the complainant, but VEOHRC does need to be satisfied that the person represented is entitled to bring a dispute, the person has consented to it being brought on their behalf and the representative body has sufficient interest in the dispute. VEOHRC may be satisfied of these requirements without having to know the identity of the person or persons being represented.

David LIMBRICK: If a respondent to a VEOHRC dispute resolution process opted to raise the matter with VCAT instead, would they be raising the dispute against the representative body or the unnamed complainant?

Jaclyn SYMES: This is only in relation to VEOHRC; you cannot be anonymous in VCAT.

David LIMBRICK: That gets to my point, actually, Minister – that if the respondent opted to go through VCAT, the complainant would not retain their anonymity, would they?

Jaclyn SYMES: Not necessarily, but what we were referring to was, as you put out, new section 114A, and this is about the ability for representative bodies to bring a dispute for unnamed persons.

David LIMBRICK: Does the conduct that someone might be accused of under this need to be directed at a particular person for them to complain or can it be directed generally?

Jaclyn SYMES: Mr Limbrick, there certainly has to be a link. As you will appreciate, the legislation is proposed to apply to those with a protected attribute or somebody who is associated with someone with a protected attribute – for instance, a parent of a child who has a protected attribute that is subject to the laws.

David LIMBRICK: Maybe it would be helpful if I clarify a bit. For example, let us say I have a protected attribute, and I see something on the internet that I find highly offensive or to be severely ridiculing my protected attribute – it is not directed at me personally, but it is directed at people with my protected attribute. Can I launch a complaint against the person who communicated that thing?

Jaclyn SYMES: Mr Limbrick, to bring a civil anti-vilification dispute to VEOHRC or make an application to VCAT a person must claim that another person has contravened the protection in relation to them or their group. This requirement is the same as for bringing a discrimination, sexual harassment or victimisation complaint under the Equal Opportunity Act 2010.

David LIMBRICK: If I understand the minister right, that would apply because I am a member of that group. This ridicule is directed at my group, and therefore I can bring a complaint against that person. Is that not the case?

Jaclyn SYMES: Mr Limbrick, as I have outlined, a person can bring a dispute to VEOHRC or make an application if the protection has been contravened in relation to them. For the new harm-based protection they will also need to claim that they have the relevant protected attribute and were part of the audience of the alleged conduct.

David LIMBRICK: Can I just clarify the audience of the alleged conduct: if I am using a social media account, then I am an audience of everything on that social media platform, aren’t I? So basically everyone using social media would be an audience of that alleged conduct, wouldn’t they?

Jaclyn SYMES: The steps that I have taken you through are to ensure that only people directly affected or targeted by the conduct are able to make a complaint.

David LIMBRICK: Can I just clarify something with the minister: the minister just said only people that are targeted by the complaint, but I thought the minister said earlier people with those particular attributes that are targeted by the complaint. Couldn’t it target a group with the attribute rather than a particular individual?

Jaclyn SYMES: Yes, but if you are part of the group, you can be affected.

David LIMBRICK: Back to jurisdictional issues: in, for example, defamation cases it is often the case that the identity of the person committing this conduct is unknown and therefore there needs to be legal action taken on a social media company or through some internet service provider or something to find the identity of the person that did it. For persons that are essentially anonymous – say a social media account that is not named – how would VEOHRC identify who that person actually is, and would they have the legal power to be able to figure that out?

Jaclyn SYMES: Yes, you are touching on areas where the enforceability of some of the provisions when you cannot identify a perpetrator is quite difficult. That applies to a range of offences, particularly those that can be committed by carriage of social media and the internet. Obviously, for the criminal component police have a range of investigative powers that they could exercise. There is provision for VEOHRC to seek orders from VCAT in relation to production of information and the like, but these are not new challenges.

David LIMBRICK: I understand that in criminal cases it is already the case that if people commit criminal conduct online that is anonymous the police have the power to use legal means to obtain the identity of someone through issuing notice to a social media company or something like that. But what I am getting to is: if someone under the civil provisions was anonymous and directed severe ridicule, for example, to someone with a protected attribute, how could VEOHRC actually find out who they were? There is no named person. VEOHRC would need to force that company to hand over the details, as the police do currently for criminal investigations. But how could VEOHRC actually know who they were?

Jaclyn SYMES: I think that is the conversation we have been having, Mr Limbrick. VEOHRC can obviously hear matters about online vilification. Some of the barriers that you have indicated can be dealt with by VEOHRC if there is agreement between the parties, and this could include public apologies or an agreement to remove the online content, so that could apply to a platform. The outcomes at VEOHRC can include an order for a person to remove material from an online publication, so there are avenues for removal of material that might fall foul of the laws, despite the fact that they might not be able to identify a particular perpetrator.

Gaelle BROAD: I would not mind going back to 195N where it talks about the criminal definition. The government has stated that the offence is not intended to capture mere contempt, distaste and ridicule or seriously unkind conduct or bad thoughts. I know you touched on this perhaps earlier with Mr Limbrick. How does the government distinguish between seriously ridiculing conduct, which will be illegal under this bill, and seriously unkind conduct? How confident can the government be that one will be criminalised and the other not sanctioned?

Jaclyn SYMES: Mrs Broad, I went through the expectation of the courts in relation to their interpretation of these laws. The language is not new to them. Just let me find my section and I can read it back out for you. Obviously these are matters for the judiciary to determine. But in relation to the incitement offence in particular – because you are talking about 195N – a person commits the new incitement offence if they engage in conduct that is objectively likely to incite hatred against, serious contempt for, revulsion towards or severe ridicule of another person or group of persons and they do so on the ground of the protected attribute of the other person or the group, and if they either intend their conduct to incite hatred against, serious contempt for, revulsion towards or severe ridicule of the other person or the group or believe their conduct will probably incite hatred against, serious contempt for, revulsion towards or severe ridicule of that other person or group. These are subject to legal precedent and, as you have indicated, it is not intended to capture merely offensive or unkind conduct or mere distaste or ridicule that was established in the Cottrell and Ross case that I referred to earlier.

I went through this with Mr Limbrick. Were you here when I went through the dictionary meanings? Yes. Okay, I do not need to repeat that.

Gaelle BROAD: Previously under the Racial and Religious Tolerance Act the criminal offence required proof that the accused knew that their conduct was likely to incite hatred. Why has the government removed this requirement from the legal formulation for the offence in this bill?

Jaclyn SYMES: It was based on both a parliamentary inquiry and feedback from the police and the courts that the threshold was too high and that the appropriate setting is ‘likely’, and we have followed the advice from both stakeholders.

Ann-Marie HERMANS: Minister, I heard you answering some of the questions. Could you perhaps help me to understand and clarify some of the answers that you have given? The bill provides that if any of the inciting conduct takes place in Victoria, it does not matter whether a person against whom the offence was committed was outside Victoria at the time. I heard your answer to Mr Limbrick. I am trying to clarify if the answer I heard to the question I am about to ask was yes, and I would like to understand further: does it mean that an activist who lives in, say, New York or London or Timbuktu could make a complaint to Victoria Police about, say, a private email received from a Victorian that they found severely ridiculing? Is that what you are saying – that they can actually from outside, internationally, take a complaint to Victoria Police about a private email and the contents of it?

Jaclyn SYMES: Without getting into the specifics of the vague example that you provided, I think what your question is about is the jurisdictional application of the laws. I can take you back through some of the commentary that I went through with Mr Limbrick. There has to be a link to Victoria. There are investigative powers for Victoria Police to extend beyond Victoria for the purposes of applying the laws, but it is not without its challenges, as we said in the exchange before.

Ann-Marie HERMANS: My understanding is that the answer is yes and that that would be –

Jaclyn Symes interjected.

Ann-Marie HERMANS: You did not say no either, so you said that it is possible.

The DEPUTY PRESIDENT: Mrs Hermans, try and stick with the minister’s answer rather than your answers, please.

Ann-Marie HERMANS: Minister, I am just trying to clarify. It is still a bit vague. It does not seem to completely clarify what I was asking in terms of this context, but let us just move on. Section 195Q removes the requirement in the Racial and Religious Tolerance Act 2001 for the Director of Public Prosecutions to give written consent for prosecutions of adults. That would be removed from the act. As the DPP prosecution policy notes, consideration of reasonable chance of conviction and the public interest is required when providing consent. Has this requirement for written consent been removed so as to ensure more prosecutions of cases which have a less than reasonable chance of success?

Jaclyn SYMES: No, that is not the intention.

Ann-Marie HERMANS: In terms of physical harm and property damage, section 195O establishes the ‘threaten physical harm or property damage on ground of protected attribute’ offence. The maximum penalty proposed is five years jail, whereas previously under the Racial and Religious Tolerance Act the maximum was six months jail. What is the reason for the tenfold increase in the maximum penalty?

Jaclyn SYMES: Two-plus years of consultation is what has led to an increase in penalty to reflect the seriousness of this behaviour. The maximum penalty for the threat offence will be five years imprisonment, compared to a three-year maximum for the incitement offence. The higher maximum penalty for the threat offence recognises that, while inciting hatred is a serious offence, threatening actual physical harm to a person or damage to property is objectively more serious. The five-year maximum penalty is consistent with other existing threat offences and with other comparable offending. A range of sentencing options below the maximum penalty will also be available for appropriate cases and may include fines, community-based orders, restorative justice and the like. The reforms will increase the maximum penalty for the incitement offence to three years, as I have indicated, and that is in line also with similar offences in Victoria, which is something that we strive to do for consistency.

Ann-Marie HERMANS: This offence covers both intentional conduct and also reckless conduct. Given the significant increase in the maximum penalty, is the government confident that a person acting recklessly should be facing the same maximum penalty as a person who acts intentionally to threaten physical harm or property damage?

Jaclyn SYMES: Again, the inclusion of reckless as an offence was identified by both the parliamentary inquiry and also feedback from Victoria Police in relation to the difficulty of ensuring that these charges could apply where appropriate. Recklessness is still a high threshold, and obviously the difference between reckless and intentional would be taken into account in sentencing.

Ann-Marie HERMANS: Section 195Q provides that Victoria Police or the DPP may bring a prosecution for either of the new criminal offences; however, the DPP must consent in the case of a person under the age of 18 years. What is the reason for this?

Jaclyn SYMES: This is a common feature in relation to a protection mechanism for vulnerable cohorts. The DPP is regularly asked to provide consent where alleged offenders are under 18. It ensures that the unique vulnerabilities and characteristics of children are considered before proceeding with criminal charges.

Ann-Marie HERMANS: Just for my own clarification too, recently we had a situation where some nurses were recorded on a video inciting hatred for another particular race and religion. In the case of that recording being released to the public, it also would have caused – and did cause, as I understand it – some damage or concern to those who were in the video. So in that case, where does the act apply? Does it apply to both the person who created the video and released it and those who were speaking on the video that were inciting hatred? Because once the video is released it could also cause problems for those that were in the video who were representing yet a different religion. I am just trying to understand: would it be that both would be in a situation where this law would apply and both would be in breach of the vilification law if this passes?

Jaclyn SYMES: Mrs Hermans, I might just get some advice from the box, because I am obviously quite reluctant to refer to a case that is currently before the courts. It is a matter that is in New South Wales, so it is not particularly relevant to this legislation. I was also a bit confused about whether you were asking whether people are vilifying themselves. In relation to the dissemination issue, let me see if I can address that.

A creator of material and a disseminator of material could both be caught under these laws, without reflecting on the specific example that you provided.

Ann-Marie HERMANS: I know you do not want to do specifics, but just so I can understand this, let us take that in the time of the lockdowns there were unvaccinated pastors that actually had church, and they went to church and then were put in the papers. Would that mean that that church and all of its people could then turn around and say that because the pastor had been put in the papers and had been imprisoned for breaking the law, they felt vilified themselves because it was actually giving their church and their religion a bad name? Could they be prosecuting in the vilification laws?

I feel like we are opening up Pandora’s box here. You are saying that dissemination of material can be something that people take an issue with according to this law, and therefore this could be applying to absolutely every article that is ever written that somebody could take offence to or anything that is out on YouTube at all. I am just trying to clarify. Is that what you are saying, that dissemination of any information that a person or group takes offence to can actually have this law applied to it and they can then say that they feel that it is a vilifying situation? Is that what you are saying? Can you please clarify, Minister.

Jaclyn SYMES: I can absolutely confirm I am not saying what you just tried to articulate. There are a range of concerns I have with the way you articulated that question. First of all, you are referring to vaccination status. That is not a protected attribute, so I would fully remove the example that you have tried to use to understand the application of the law, because it is not helpful. It would not apply.

Religion is a protected attribute, yes, but in the way you have characterised the question, you are trying to create a situation where you rule in or rule out that particular example, and that is particularly unhelpful. I cannot and will not answer that because it is an example that just does not apply in this situation in the way you have articulated it.

What I think you are getting to, the crux of your question – which I do not think actually needs an example – is in relation to dissemination and whether public conduct could include dissemination. Ultimately the courts and tribunals will determine if conduct is public after taking into account the facts of a particular case. Again, I do not believe that the way you characterised that question is helpful in any way in explaining the application of that particular clause.

David LIMBRICK: I would like to take the minister back. Earlier I asked some questions about clause 13 and the disputes process, and forgive me if I did not hear your answer correctly. I was asking a question about an anonymous complainant. If a respondent opts to go to VCAT, will the anonymous complainant remain anonymous, or will the representative body represent them in VCAT? Who from the complainant’s side is representing in VCAT?

Jaclyn SYMES: You cannot bring a complaint in VCAT against an unnamed complainant.

David LIMBRICK: If that is the case, how does that work if the complainant is anonymous and the respondent opts to use VCAT? How is that actually going to work?

Jaclyn SYMES: The purpose and intent of enabling VEOHRC to deal with matters that involve a complainant represented by a group is particular to VEOHRC and will serve a purpose for bringing parties together where someone is concerned about identifying themselves – as the particular victim, for example. That is a different process to VCAT. We think it is appropriate for this to be facilitated in the VEOHRC environment.

David LIMBRICK: The government has amended the religious exemptions to include preaching and proselytising, but these terms are not defined. Could the government provide a definition for these terms?

Jaclyn SYMES: Mr Limbrick, I was just conferring with the box, because I was of the view that there is a definition of ‘proselytising’ in the current Racial and Religious Tolerance Act. I am just double-checking that. The answer that you would expect from me is that they are to be given their ordinary meaning, and I guess in justifying or giving a reason as to why there were amendments in the Assembly to add the terms, it was about making sure that people are clear on what is captured by the religious purpose exception. That was something that was brought up in consultation and feedback about conveying or teaching a religion or proselytising. Currently the definition of ‘religious purpose’ is ‘conveying or teaching a religion or proselytising’, but this is not intended to be an exhaustive list. Again, there is case law that goes to this material.

David LIMBRICK: The definition of ‘religious belief or activities’ is adopted from the Equal Opportunity Act 2010. That is my understanding. But that includes not holding a lawful religious belief or view. Does that mean that atheism could be construed as a protected attribute, for example?

Jaclyn SYMES: The answer to that is yes.

David LIMBRICK: I am sure that atheists will be very happy to hear that.

When this was debated in the lower house, during debate when these amendments were introduced, the government claimed that part of the reason for the change was to make the language consistent with other legislation, but the Crimes Act 1958, the Equal Opportunity Act and the Charter of Human Rights and Responsibilities contain no mention of the terms ‘preaching’ or ‘proselytising’. What legislation is the government referring to for consistency?

Jaclyn SYMES: I am going to take that one on notice, Mr Limbrick, and come back you.

David LIMBRICK: The amended statement of compatibility, when explaining the definition of religion under clause 9, claims:

The Bill also modernises the definition of ‘religious purpose’ to align it with the wording of the Charter, with additional modifications. It defines a religious purpose as including, but not limited to, worship, observance, practice, teaching, preaching and proselytising. The inclusion of the terms ‘preaching’ and ‘proselytising’ provides greater certainty to faith communities that these religious practices continue to fall within the religious purpose exception.

Is it the government’s intention to expand human rights protection beyond the legislated charter section 14 for the religious protections?

Jaclyn SYMES: No. I was following along the way you explained where we got to in the legislation, and I think you answered your own question in that after landing the legislation and being consistent with the charter there were questions that still remained in relation to what it was particularly picking up. To put this beyond doubt, ‘preaching’ and ‘proselytising’ were added for clarification purposes.

Georgie PURCELL: Minister, how does the bill ensure that consideration is given to the intersectionality of attributes?

Jaclyn SYMES: It is deliberately picked up, wanting to ensure that people that have a variety of attributes do not have to pick one and decide that that is the one that should be considered. We know very well that women in particular, particularly Muslim women, will have a range of attributes that can be subjected to vilification, and that comes through very strongly in relation to sex, race, religion. Meeting young people in particular to speak about these laws in terms of – I think I met a young Muslim woman of colour who was queer, and I had a great conversation with her about the fact that you do not need to pick one attribute as to why someone is not treating you appropriately. We have deliberately ensured that the legislation picks up a range of attributes and you do not have to pick and choose between them.

Georgie PURCELL: I just had a few questions about children: how does the government envision the bill applying to people under the age of 18 who can sometimes often unknowingly or recklessly engage in hate speech at a young age?

Jaclyn SYMES: One of the benefits that I hope to see through the changes of the way we deal with these matters is the opportunity for people to be presented with the impact of their behaviour. I think particularly with young people, if they have engaged in behaviour that has caused harm to another, having that person articulate the impact of that conduct can be incredibly powerful in relation to people understanding the consequences of their behaviour and hopefully it not happening again. It can change the trajectory of somebody’s way they view the world. In relation to the criminal laws, again I do not want young people caught up in the criminal system in relation to these laws; I would much prefer that education prevents that type of thing, but we have got a mechanism where DPP will consider the particular vulnerabilities and characteristics of young people under 18 and potentially a broader cohort if things proceed as I think they will, but in relation to children I think that the civil approach can be incredibly powerful, particularly for young people.

Georgie PURCELL: You touched on this a little bit just now, but just to clarify: are there any specific protections to prevent children from being charged under the bill?

Jaclyn SYMES: Yes, they will require the consent of the DPP, and I think just to elaborate a little further in relation to this, this legislation cannot be viewed in isolation to other programs and initiatives that the government have embarked on, particularly in the education space. There are a range of initiatives to strengthen programs that promote respect, diversity and cohesion amongst students in Victorian schools and also to better equip educators and school leadership to prevent and respond to hate conduct. That is good work, and as I have indicated to Mr Limbrick, I hope that that type of effort prevents people having to use the civil or criminal scheme, particularly in relation to young people, but there is always more work to do in this regard.

Georgie PURCELL: I just want to touch briefly on homelessness, which a few members raised in their second-reading contributions. How does the bill make space for the vulnerability of those suffering from homelessness, with the nature of their plight often being that their conduct is always in the public?

Jaclyn SYMES: Can I just clarify that you are wanting assurance on alleged perpetrators or victims in that cohort?

Georgie PURCELL: Yes, in relation to alleged perpetrators experiencing homelessness who may be on the street permanently.

Jaclyn SYMES: Ms Purcell, in the civil system there is already provision for an examination of specific circumstances that would pick up some of the considerations that you have referred to. In the criminal space public interest is not an overlying principle in relation to these matters, and I think it goes to police discretion in relation to the appropriate response in the circumstances. It is also one of the considerations in weighing up whether the Greens proposed amendment is the right way to go or not. It is something we considered in the development of the bill in relation to the current requirement for all charges needing the consent of the DPP to proceed. There is experience that that can be a barrier, but as I have already indicated to the Greens, we are supporting their amendment because of this exact reason. Giving the DPP the ability to look at particular cases such as vulnerabilities of alleged offenders is something that is a benefit and something we should keep an eye on, because it can slow up other cases as well. But the Attorney has been persuaded by the arguments that the Greens have put, which go to the very point that you are raising in relation to people with vulnerabilities and specific considerations. As you rightly point out, it is a bit difficult to have a conversation in private when you do not have a home.

Georgie PURCELL: You did touch on this somewhat in your response just now, but of course there is obviously quite a difference between asking a person who is just on the street to move versus asking someone who is on the street because they are homeless and is keeping their belongings there. The responses are bound to be different. Will authorities take this context into account when deciding whether to prosecute someone? Based on your response before, it sounds like the answer is yes.

Jaclyn SYMES: I would argue yes in either scenario, whether it is under the bill as it stands or under the potential amended bill should the Greens amendment get up. But obviously it is more structured under a DPP consent model.

David LIMBRICK: I would just like to follow up something Ms Purcell mentioned about the difference between private and public conduct. I think the minister said it is hard to have a private conversation if you live in public on the street, but isn’t it the case that these laws apply in private anyway?

Jaclyn SYMES: Not the civil.

David LIMBRICK: That brings me to another dissemination issue. If there was a private conversation that was secretly recorded or recorded overtly and distributed and the person saying the offence did not consent to that distribution or was not aware of it being recorded and it was subsequently published, can someone still put a complaint against that person regardless of whether they intended for that to be public or not?

Jaclyn SYMES: Mr Limbrick, this is similar to the conversation I was having with Mrs Hermans before. The courts and tribunal would determine if conduct is public after taking into account the facts of the particular case. As we established, it is possible for a creator of content and a disseminator to be captured by the laws, but obviously if you intend something to be said in private, particularly if dissemination is against your consent, that would be taken into consideration by the courts.

David LIMBRICK: In the current day and age, when you are walking outside, you sort of pretty much have to assume that everything could be recorded and disseminated, especially for MPs.

Jaclyn Symes: Good. Well, act appropriately, then.

David LIMBRICK: Yes, well, act appropriately. But if someone is having a private conversation that is disseminated without their knowledge – it might not necessarily be covert, but it can happen inadvertently all the time, actually – would that be expected to be taken into account if a complaint was made about that person?

Jaclyn SYMES: Again, just for clarification, private conduct and private conversations are not captured by the civil anti-vilification laws. Private conduct does not fall within the new definition of ‘public conduct’. In relation to the existing private conduct exception in the Racial and Religious Tolerance Act, we are not retaining that, because it would overlap with the introduction of a definition of ‘public conduct’. The two concepts, the private conduct exception versus defining public conduct, are different ways of achieving the same purpose of continuing to limit the scope of civil anti-vilification laws to capture only public conduct. Some of these matters were referred to in the parliamentary inquiry in relation to ensuring that a definition of public conduct could be brought in and the private conduct exception not being required in that instance. Conduct that is private, such as private conversations, will continue to be excluded from the civil anti-vilification laws. In relation to if you are in public and that conduct occurs, you can be captured by anti-vilification protections, as well as in the online world. It is about, effectively, viewing it from the perspective of the person that it impacts. We were having a conversation earlier about audiences.

David LIMBRICK: We are getting down to the definition of public versus private conduct, and Ms Purcell earlier gave the example of a homeless person. I think the minister said that they cannot conduct anything in private. Is it possible to have a private conversation on the street outside? Because I would have thought that it is possible to do that. If I am standing next to someone and having a conversation, I do not expect that to be broadcast everywhere. That to me would be private conduct and therefore a homeless person on the street could conduct private conduct or have conversations with other people, surely.

Jaclyn SYMES: Yes, and I agree with that. And again, ultimately the courts and tribunals will determine if conduct is public after taking into account the consideration of the circumstances. But again, it is about communication to the public, or things that can be observed by the public. That is what is intended to be picked up by the term ‘in public’.

Evan MULHOLLAND: I might ask a couple of questions just on the back of Mr Limbrick’s comments. So, would a conversation between two office colleagues be considered public conduct?

Jaclyn SYMES: Mr Mulholland, any conduct that is communicated to the public or observable by the public could be captured by the civil anti-vilification laws, including if it occurs in a place that is not open to the general public, such as a workplace.

Evan MULHOLLAND: What about between two colleagues in the tearoom but it happens to be overheard by another person?

Jaclyn SYMES: Again, I have answered the question. I do not want to be drawn on hypotheticals except to repeat the answer that conduct that is communicated to the public or observable by the public could be captured by the laws. It means public conduct that could occur on private property, such as schools, workplaces, universities et cetera. Ultimately, it would be a matter for the court to determine if conduct is public, taking into account the facts of the situation.

Evan MULHOLLAND: Minister, can you explain to me how many people have to be able to see or hear conduct in a workplace or a school before it is deemed to be public conduct?

Jaclyn SYMES: Any conduct that is communicated to the public or observable by the public could be captured by the laws.

Evan MULHOLLAND: Could that just be captured by one person?

Jaclyn SYMES: As I have indicated, the courts and tribunals will determine if conduct is public after taking into account the facts of a particular case.

Evan MULHOLLAND: Are online comments public conduct?

Jaclyn SYMES: Yes. Public conduct that occurs online will continue to be captured by anti-vilification protections. The bill expressly provides that public conduct includes any form of communication to the public, including ‘broadcasting and communicating through social media and other electronic methods’. It is in the bill.

Evan MULHOLLAND: Clause 9 sets out a statement for Part 6A. Does this statement have, or is it intended to have, any legal effect?

Jaclyn SYMES: Deputy President, again, when somebody refers to a clause and asks me a question, I need some time to read the clause, which I am doing.

Evan MULHOLLAND: That is okay. I will help the minister along.

Jaclyn SYMES: You can’t ask me about the impact of something when I haven’t got to it.

Evan MULHOLLAND: No, that is all right. I will see if I can help. In new part 6A new section 102A states:

The right to freedom of expression is an essential component of our society and this right should be limited only to the extent that can be justified in an open and democratic society based on human dignity, equality and freedom. The Parliament acknowledges the importance of maintaining the ability to engage in robust discussion reasonably and in good faith on any matter for a genuine academic, artistic, public interest, religious or scientific purpose.

Does the government still agree with that statement?

Jaclyn SYMES: Mr Mulholland, your first question was in relation to whether it has legal effect, and now you are asking me if I agree. I thought your second question was flowing from your first, but I guess the answer to both is yes.

Aiv PUGLIELLI: We have covered quite a lot of ground tonight, and I will really try not to duplicate anything. The new incitement offence in new section 195N is an extremely serious crime punishable by up to three years imprisonment. To ensure we are going to continue living in a society where things like investigative journalism, artistic and academic expression, political speech and the right to protest are upheld, criminalising speech in such a way should be reserved for the most egregious conduct. Why does the explanatory memorandum indicate that the offence is intended to respond to a broad range of conduct, both overt and subtle?

Jaclyn SYMES: It is a good opportunity to put on record that Victorians are entitled to hold an opinion without interference and to seek, receive and impart information and ideas of all kinds. As I have indicated, this is vital in a democratic system of government and to political discourse. The incitement offence is intended to capture only extremely serious conduct that urges or promotes the strongest forms of dislike towards a person or group of persons. Like the current serious vilification offences, it is not intended to capture merely offensive or unkind conduct, mere distaste or ridicule, which is a conversation that we had a little while ago that has been established in the case of Cottrell v. Ross. Whether the conduct is considered likely to incite hatred against, serious contempt for, revulsion towards or severe ridicule of will depend on the circumstances of each individual case.

Aiv PUGLIELLI: With respect to that word ‘subtle’, what kind of subtle conduct is intended to be captured by 195N?

Jaclyn SYMES: As you have referred to the wording of ‘overt’ and ‘subtle’, it was intended to contrast the existing Crimes Act definition of ‘incite’, which includes strong language like ‘command’, ‘advise’ and ‘authorise’ with the ordinary dictionary meaning of ‘incite’ used in the offence, which includes less forceful language like ‘to urge’, ‘to animate’, ‘to stimulate’ or ‘to encourage’. The reference to subtle conduct does not relate to the seriousness of the conduct, rather it reflects that the offence is intended to respond to a broad range of incitement conduct, including conduct which is less directive than, say for example, a command.

Aiv PUGLIELLI: How does the government intend to ensure that democratic freedoms like the right to academic and artistic expression, to protest and to political communication are not unduly impinged upon by the interpretation of these words?

Jaclyn SYMES: The reforms limit only hateful speech and conduct to the extent necessary to protect at-risk individuals and communities. The reforms will not apply to speech more broadly and will not interfere with a person’s right to hold an opinion. The bill includes measures that promote and protect this endeavour. The new serious vilification offences will only prohibit serious hateful conduct that would be likely to incite hatred, serious contempt, revulsion or severe ridicule against a person or group or threaten physical harm or property damage. This is a significantly higher criminal threshold that will not unjustly infringe upon freedom of expression, protest or political communication. There is a particular aim for this legislation in relation to particular conduct. It is not envisaged and not intended to impact on general freedoms of expression.

Aiv PUGLIELLI: The new list of protected attributes includes gender identity, which states that the definition of gender identity here is to have the same meaning as in section 4(1) of the Equal Opportunity Act. This definition encompasses expressions of gender, including dress, speech, mannerisms, names and personal references. Could you please clarify that this definition covers working or presenting as a drag artist, drag queen or drag king within this protected attribute?

Jaclyn SYMES: Yes, it does.

Anasina GRAY-BARBERIO: Minister, the definition of ‘race’ includes nationality or national origin. Could you please clarify whether criticising the actions of a government – for instance, the government of Israel – is intended to be captured by anti-vilification laws under the definition of nationality or national origin in this legislation?

Jaclyn SYMES: No. While the existing definition of race under section 4(1) of the Equal Opportunity Act includes a person’s nationality or national origin, these changes to the law are not intended to capture criticism of a government or criticism of any government’s particular policies. However, that does not provide an avenue as a placeholder to use as an excuse to hide behind vilification.

Anasina GRAY-BARBERIO: New section 195N states that:

A person commits an offence if –

(a) the person engages in conduct that is likely to incite hatred against, serious contempt for, revulsion towards or severe ridicule of, another person or a group of persons …

What conduct would constitute severe ridicule that would not be captured by hatred against, serious contempt for or revulsion towards?

Business interrupted pursuant to standing orders.

Jaclyn SYMES: Pursuant to standing order 4.08, I declare the sitting to be extended by up to 1 hour.

Ms Gray-Barberio, you are asking me to apply and define terms. I have done my best to go through, which is not uncommon in criminal bills, the ordinary meanings and definitions. I have pointed to some case law. It is not for me to provide examples of what is in and out and where it sits.

Anasina GRAY-BARBERIO: The incitement offence proposes two possible fault elements, one of intention and one of belief. Legal stakeholders have indicated that belief is not one of the more commonly used four fault elements of intention, knowledge, recklessness or negligence. Can the government confirm which fault element it intends the word ‘believes’ to cover? This would really assist community legal centres and lawyers in providing advice to clients by providing more certainty about the types of conduct the provision is meant to cover.

Jaclyn SYMES: In relation to the fault elements, they refer to an accused’s state of mind at the time they are alleged to have committed the offence. ‘Intention’ means that the accused actually sought to bring about a particular outcome; ‘reckless’ means that the accused believed a particular outcome would probably result from their actions, and they acted anyway. We have had a little bit of a conversation about recklessness and its inclusion. It is a policy position to include recklessness because it lowers the threshold of the new offences compared to the current serious vilification offences, which are obviously the reason we are here. The feedback was that they were not working particularly well and not being used. However, I would caveat those comments that reckless is still a high threshold, reflecting the serious criminal penalties that could apply.

Evan MULHOLLAND: It is worth noting that I know the Greens have attended rallies where Hash Tayeh has used the chant ‘All Zionists are terrorists’ and have not condemned the use of that chant or stopped its use at rallies at which it was involved. Does the government foresee the term ‘All Zionists are terrorists’ being an offence under the protected attribute?

Jaclyn SYMES: Without reflecting on your unhelpful commentary in relation to a valid question, whether conduct would be captured by the proposed changes to the laws will depend on individual facts and circumstances of the case. In criminal matters it would be a matter for the prosecuting agencies, VicPol and the DPP, and then obviously for the courts to ultimately determine. Anti-vilification laws will continue to apply to any person who vilifies another person or group on the ground of their protected attribute – for example, because of their race or religion. A person or group’s political views or ideological positions are not protected attributes under the bill, but similar to the conversation that I had previously about being able to criticise the actions of a government not being intended to be caught by this, it is not a way to use a term that is substituted for another term – particularly in relation to the term ‘Zionist’, for example. You cannot use that as a cover for anti-Jewish behaviour and think that that is the way that you could avoid being captured by the laws. It does not provide immunity from application of the laws if that is what it is used for.

In relation to the government’s intent for criticism of Zionism as a political ideology to be captured by these laws under the definition of ‘race’, it is not – anti-vilification will continue to apply to any person who vilifies another person or group on the ground of their protected attribute. As I said, where criticism of Zionism is used as a placeholder for clearly antisemitic conduct, yes, you could expect that behaviour to be captured. This has been subject to a lot of conversation in relation to how this law would apply. Obviously we have had a lot of feedback from the Jewish community in particular, who have sought greater protection from vilification. As I said, political beliefs and criticisms of government are not to be caught up by these laws, but they cannot be used as a loophole to express views that do pick up a protected attribute.

Evan MULHOLLAND: That is extremely helpful. It is good to get this on the record in the committee stage. Would chanting ‘From the river to the sea’ be covered as an incitement offence?

Jaclyn SYMES: Mr Mulholland, as you would appreciate, when you are trying to bring about laws that apply to the conduct of people and words, it is all contextual. It is not for me to rule things in or out. The courts will have an opportunity to consider all relevant facts and circumstances.

Evan MULHOLLAND: Would holding up a sign that someone might take offence to under the protected attributes – likely to cause severe ridicule and all that – would that be considered public conduct?

Jaclyn SYMES: Yes, it could be. As I said, words or signs that are in public would be captured.

Evan MULHOLLAND: And if someone had a similar thing on an item of clothing, would that be considered public conduct?

Jaclyn SYMES: If they are in public, it could be.

Evan MULHOLLAND: And if someone has that exact same form of words as a tattoo and appeared in public, would that be considered public conduct?

Jaclyn SYMES: No, we exclude tattoos. This has come up in a variety of laws, particularly in relation to hate symbols and the like. Tattoos and other forms of body modification are excluded to ensure that the bill is not more restrictive than necessary, also recognising the importance of protecting a person’s bodily integrity as part of the right to privacy under the charter. This is a question that comes up a lot. It is not something that is intended to be captured for obvious reasons.

Evan MULHOLLAND: That is interesting – good to know.

Jaclyn Symes: Going to rush out and get a tattoo, are you?

Evan MULHOLLAND: No, not quite. Threatening physical harm or property damage is an offence under the Crimes Act with a maximum penalty of five years. It will also be an offence, under this bill, to threaten physical harm or property damage based on a protected attribute. Could someone be charged twice for one incident?

Jaclyn SYMES: Double jeopardy prevents that, but you could be charged in the alternative.

Evan MULHOLLAND: Could you expand on that? What do you mean by ‘could be charged in the alternative’?

Jaclyn SYMES: You cannot proceed with both, but one or the other could proceed.

Bev McARTHUR: I am a little concerned for my friends in the Greens over there because this description of what might be considered vilification may well impede their ability to express their free speech on issues. Minister, can you clarify that they will be protected under this act if they want to protest about matters occurring on the other side of the world?

Jaclyn SYMES: Being green is not a protected attribute.

Bev McARTHUR: That means they are excluded from all matters of activity that could be considered vilification of another group with a protected attribute, does it?

Jaclyn SYMES: Being green does not make you immune from the law.

Bev McARTHUR: I will leave it to our friends to defend their right to free speech further down this committee path. I will go to the civil provisions in the bill, which apply to all the protected attributes in the Equal Opportunity Act – for example, religious belief or activity is a protected attribute, as is gender identity and as is sex. Under this bill, how does the government anticipate that VEOHRC or VCAT will deal with matters where the reasonable and good faith views of one group with a protected attribute – that could even be the Greens – are regarded by another group with a protected attribute to be severely ridiculing or seriously contemptuous?

Jaclyn SYMES: That would be a matter for a court or tribunal in terms of balancing some of the issues that you have raised, but what you are potentially touching on as well is that some of the exceptions, particularly in relation to religious exceptions that would play out in practice and particular exemptions for expressing a view – preaching or proselytising and the like – are being acknowledged in relation to people’s genuine practice of their faith.

Bev McARTHUR: For example, a gender-critical feminist, a woman, may hold certain views about biological sex which are very much at odds with the views of members of the trans community. In a bill supposed to support social cohesion, how does the government anticipate that these laws will settle such disputes?

Jaclyn SYMES: They are not intended to settle the views of people. You can have the views that you like. There is a difference between having an opinion and expressing that opinion in a way that causes harm and demonises and destroys someone. This is about protecting people from vilification. It is not designed to control people’s thoughts and feelings.

Bev McARTHUR: Well, Minister, one man’s thought or views might be another man’s vilification. So are you telling us that the courts will decide this?

Jaclyn SYMES: No, Mrs McArthur. Sorry, we are on different wavelengths here. There is no capacity to legislate against somebody’s thoughts or somebody’s beliefs. It is the actions that somebody takes that cause other people harm connected to a particular attribute that these laws are all about. The bill is not intended either to restrict genuine debate on any matter, and particularly – I will call it out – we are not attempting to restrict genuine debate on sensitive issues such as gender and ideological differences of opinion. The reforms will limit hateful speech and conduct to protect at-risk individuals and communities. However, they do not apply to speech more broadly and will not interfere with a person’s right to hold an opinion. As you have indicated, somebody might hold hurtful, horrible opinions. If they keep them to themselves or if they have conversations with people in their home – go for it. If you come out onto the street and point to somebody with an attribute that you have an issue with and demand that people throw rocks at them, that is going to offend the laws.

Bev McARTHUR: Will certain people with a protected attribute be required to be silent as to their beliefs – they cannot prosecute them or they cannot proselytise them – or risk being sued.

Jaclyn SYMES: Again, Mrs McArthur, I have explained what the law’s purpose is. If somebody is concerned about expressing an opinion and being caught up by the laws, then that is probably a good opportunity for them to take stock and think about what they say before they say it. But these laws are not designed to prevent people’s thought processes. We are wanting to deal with the harm that certain behaviours and conduct that are inflicted on people with protected attributes suffer.

Bev McARTHUR: As an adult human female, am I someone with a protected attribute?

Jaclyn SYMES: You could have a range of attributes I am not too sure about, Mrs McArthur, but the attribute of sex is picked up in the legislation, which is the only one that was particularly obvious from your description.

Bev McARTHUR: If I were to preach or proselytise the merits of breastfeeding as opposed to just chest feeding, would I be exempt from any vilification if that was offensive to another protected-attribute species?

Jaclyn SYMES: You are not exempt from the laws because you hold a protected attribute. You and I share the attribute of being female.

Bev McARTHUR: I am glad you can confirm that, Minister.

Jaclyn SYMES: Well, unless you would like to correct me.

Bev McARTHUR: No, no. I am very pleased you can confirm the definition of ‘a woman’.

Jaclyn SYMES: There are plenty of people that would fit into this attribute. I think you and I both do. In relation to us sharing in attribute, I am not protected, by virtue of having a protected attribute, from the law applying to me. If I vilify you based on one of your protected attributes, even if it is a protected attribute that I also hold, I am not immune from the laws by having the attribute myself.

Bev McARTHUR: As someone with a protected attribute – that is, sex – can I preach the merits of sex-based rights in sport without being subject to these vilification laws?

Jaclyn SYMES: You can express an opinion as long as you do not vilify individuals.

Bev McARTHUR: Minister, if a faith group had a genuine belief that the moon was made of blue cheese, would a Victorian who harshly mocked that belief in public as being patently absurd not risk contravening section 102D? After all, even a reasonable person amongst such a faith group would by definition genuinely hold that view as to the moon’s composition.

Jaclyn SYMES: Mrs McArthur, the hypothetical scenarios that you put are not particularly appreciated in a really serious legislation that is designed to protect really vulnerable groups that have been subjected to extremely inappropriate, harmful behaviour. I am not going to be drawn into specific scenarios. There has to be a genuinely reasonable belief, even in the scenario that you played out.

Bev McARTHUR: Minister, can you confirm that this bill will offer no protection for those whose claimed sexual orientations are against the law, such as paedophiles?

Jaclyn SYMES: Paedophilia is not a protected attribute.

Bev McARTHUR: New section 102D refers to public conduct that could be considered hateful against another person. Even if the former reasonable person test had been retained, ‘hateful’ is a subjective and vague term. Is the government aware of any law in existence anywhere that has given a clear and consistent definition of ‘hateful’? How can Victorians be expected to know what speech is and is not hateful?

Jaclyn SYMES: Definitions of laws are generally in this instance drawn out through case law.

Bev McARTHUR: Minister, there is already a major logjam in the courts, but you are frequently referring to courts determining, for example, what is ‘public’, what is the definition of something and how it can be concluded or clarified. How do you intend that the many extra cases which will clearly be brought before the courts will be handled in a timely fashion given the extreme logjams that there are currently?

Jaclyn SYMES: Mrs McArthur, these laws are being proposed by the government off the back of years of consultation and a parliamentary inquiry that provided a unanimous bipartisan report that made recommendations that the existing legal framework is not providing adequate protection for vulnerable Victorians. In a conversation that I had with Mr Limbrick I hoped that there would be limited cases before the courts, because that would be a good outcome – that people are not engaging in serious vilification of others. That is not a situation that I think we want in Victoria. We want less of this behaviour. Where people do contravene these laws, it is appropriate that they come before the courts. In relation to any resource demands, they would be considered in the normal budgetary sense. We will watch these cases with interest and hope that they deter others from engaging in hurtful conduct.

Bev McARTHUR: In other parts of the world where these sorts of laws have been enacted, there have been extreme logjams of court procedures. Are you saying that is not likely to happen here?

Jaclyn SYMES: Mrs McArthur, you have made a claim. Do you want to back that up?

Bev McARTHUR: Take Scotland, for example.

Jaclyn SYMES: The reason I asked was I was wondering if you had any other examples, because we had a conversation already a couple of hours ago in relation to Scotland. The new hate offences in Scotland came into force in April 2024, including offences for threatening or abusive behaviour intended to stir up hatred based on prejudice towards protected characteristics. What happened after an initial influx of reports to police was that reporting significantly reduced and stabilised. The Scottish Police Authority has noted that there was no impact on frontline policing and no material burden or additional workload for officers and contact centre staff. The new criminal offences in Victoria may have resourcing implications for the courts, which I have indicated, and we will closely monitor following commencement of the reforms.

Bev McARTHUR: Well, in Queensland the former head of the Australian Christian Lobby Lyle Shelton has been dragged through the legal system for almost five years after he was the subject of an anti-vilification complaint following comments he made online that two drag queens involved in a drag queen story time event were poor role models for children. It is not unreasonable to view the case as politically motivated given Shelton’s reputation as a well-known commentator on religious and cultural issues. The bill’s explanatory note indicates that the definition of gender identity is intended to protect drag performers. How will Victorians who share Shelton’s beliefs be protected from vexatious litigation?

Jaclyn SYMES: We have gone through the elements of many of the offences both in the criminal section and also what would need to apply in the civil protection. Hating drag performers is not a protected attribute, but what we have created here is high thresholds that need to be met in relation to offending the laws.

Bev McARTHUR: Minister, there was nothing about hate in what was suggested by Mr Shelton, but you have added that. It is about people having an opinion, which you said was quite acceptable previously, and in this case we have seen the example of it not being protected; opinions are not clearly protected. So unless you are going to say that in this state they will be under these laws – will opinions of the same ilk as Mr Shelton suggested be protected, or won’t they?

Jaclyn SYMES: It is not for me to apply these laws to another situation in another state.

Bev McARTHUR: I am asking, Minister: in Victoria if somebody holds the opinion that a drag queen story time is not acceptable for young children, is that going to be considered vilification under these laws?

Jaclyn SYMES: Under the bill we are not outlawing opinions; they would have to be expressed in a way that offends the law, so expressed in a way, for instance, that incites hatred. Merely having an opinion and expressing that would not fall foul of the law, but again – I think I went through this with someone earlier – if that extends to going into the street and pointing to someone with a protected attribute and calling for condemnation and harm to come to that person, that is a different set of facts.

Bev McARTHUR: So if I or others were to suggest at a library that it was inappropriate for a drag queen story time to take place, would that be an offence under these laws?

Jaclyn SYMES: Opinions are not outlawed by these changes; what we are hoping to address is that vilification would be caught by the laws.

Bev McARTHUR: But will it be an intention of these laws that that action could constitute vilification against a protected attribute?

Jaclyn SYMES: Mrs McArthur, it is not my role to apply the law to specific situations.

Bev McARTHUR: So in fact what you are actually saying here –

Jaclyn SYMES: No, do not tell me what I am saying –

Bev McARTHUR: Well, are you saying, Minister, that you will sublet the definitions and the decisions on these, well, definitions to the courts?

Jaclyn SYMES: We are legislators; that is our job.

Bev McARTHUR: But you seem to be saying that the courts will decide on these sorts of jurisdictions, not us the legislators but the courts. You are subletting the role here of the legislators to the courts in many of these decisions. Is that not the case?

Jaclyn SYMES: We make the laws; courts apply and interpret the laws. We have separation of powers for a reason. In relation to a lot of the matters that are subject to this bill there is existing case law in relation to definitions and applications that will guide the operation of this legislation.

Anasina GRAY-BARBERIO: This will be our second-to-last question. Minister, as has been recognised by the United Nations Office of the High Commissioner for Human Rights, the protection of freedom of expression requires that speech be criminalised only when an intention to threaten or incite violence can be proved. How does the government reconcile this with its decision to split the elements of threat and incitement into two separate criminal offences?

Jaclyn SYMES: At the outset this was examined by the parliamentary inquiry, and it was a recommendation that they made. That is what we went and consulted on, and the break-up reflects the seriousness of each of the conducts. In terms of coming back to what the inquiry found, they noted that requiring proof of both incitement and threat made the current offences complex and difficult to prosecute. That was certainly confirmed in my conversations with VicPol and was one of the reasons that people pointed to for such a small number of cases being progressed. The inquiry obviously recommended simplifying the offences and lowering the thresholds, and new offences have been separated into an incitement offence and a threat offence to cover a range of vilification conduct and improve the operability of the offences. Our hope is that this protects more Victorians from vilification.

Although the reformed offences are intended to be easier to prosecute, they maintain appropriately high thresholds, which is picking up a little bit perhaps on some of Mrs McArthur’s concerns. This is about incitement. It is intended to capture only extreme and serious conduct that urges or promotes the strongest forms of dislikes towards a person or group. It is not intended to capture merely offensive or unkind conduct or indeed opinions that fall into that category.

Aiv PUGLIELLI: This is the last question from the Greens. We went close to this earlier, but just for abundance of clarity, regarding making a complaint to the VEOHRC or to VCAT, do all viewers of, for example, an Instagram reel containing hate speech constitute being an audience in order to make a complaint?

Jaclyn SYMES: Mr Puglielli, I have a slight problem with the way you have constructed that question in that not all viewers would be captured because you have to have the protected attribute that is part of the communication. I kind of want to say yes, but I want to add the caveat that the only people that would have a cause of action are those that have the protected attribute or have an association with a person with the protected attribute who happen to be part of the audience.

Evan MULHOLLAND: I am just following up, Minister, on our discussion about double jeopardy and the offence in the Crimes Act versus the new offence to threaten physical harm or property damage based on a protected attribute. Double jeopardy definitely applies when it is the same offence, but it is a bit more tricky when there are distinct references in two separate acts. Can the government guarantee that an individual will not be charged with what are relatively similar offences but in two distinct acts?

Jaclyn SYMES: The criminal offences in this bill are going in the Crimes Act, so it is not two different acts.

Evan MULHOLLAND: One offence considers a threat of physical harm or property damage based on a protected attribute, and the other does not. Will double jeopardy still apply?

Jaclyn SYMES: We might have to go through this a little bit, because I think the way you have characterised the question is: can you be charged with threat and incitement? Is that what you are asking? Because they are two separate offences, and you can get charged with both, and they are connected to being motivated in response to a protected attribute. If you commit an offence that is threatening, you cannot be charged with threatening behaviour and threatening behaviour because of a particular reason. You would have to pick one or do them in the alternative.

Evan MULHOLLAND: I particularly meant the threat of physical harm or property damage in the Crimes Act but also the threat of physical harm or property damage based on the protected attribute, which this bill inserts. Could a person be charged for both offences? I will also note that section 198 of the Crimes Act refers to ‘Threats to destroy or damage property’, which is also quite similar. Could someone be charged for a combination of those or all three?

Jaclyn SYMES: Again, I am not wanting to get too into the specifics of the application of the law, but you could be charged as alternative charges.

Ann-Marie HERMANS: I just want, Minister, to pick up on a couple of things that Mrs McArthur alluded to and also the Greens. In section 102E, incitement, this expands the current incitement civil provision in the Racial and Religious Tolerance Act, the new list of protected attributes, but it is also lowering the test from ‘public conduct that incites’ to ‘public conduct that is likely to incite’. What is the reason for lowering the test?

Jaclyn SYMES: Mrs Hermans, I have answered this question – the exact question.

Gaelle BROAD: I just have a question to do with 102C, because there is an example there about:

Conduct may be public conduct even if it occurs at a school or a workplace.

I just want to clarify, for freedom of expression, for example, in Christian schools expressing Christian teaching, faith-based teaching intended for their community – within chapels, for example, or newsletters or emails sent out to parents – will religious institutions or schools for teaching be able to uphold and share their faith?

Jaclyn SYMES: Yes.

Gaelle BROAD: Earlier we spoke about exemptions or the intention of this bill when it comes to offensive jokes, for example, but what about cartoons that may be deemed offensive to someone with a protected attribute?

Jaclyn SYMES: It could be captured, yes, if it is in the public.

Gaelle BROAD: If someone posts on social media a scripture or religious belief that someone with a protected attribute finds offensive, will that person be captured by the civil provision?

Jaclyn SYMES: Obviously there will be consideration of the interaction between the exception.

Gaelle BROAD: If someone finds the message of a pastor or a street preacher offensive, will the pastor or street preacher be captured by the civil provision? Minister, you referred earlier to ‘genuine practice of their faith’, but who determines ‘genuine religious purpose’?

Jaclyn SYMES: I think just in terms of where you went there, I think you used the term ‘merely offended’. That is not the intention of the laws, to capture conduct that is merely offensive or unkind.

David LIMBRICK: We spoke earlier about the Scottish hate crime act, and it is my understanding that the laws were actually passed – although, as the minister mentioned, they came into effect last year – in 2021, and so it took three years for them to come into effect, and that was later than expected, and the delay was attributed to Police Scotland’s need for training, guidance and communications. So how will the government be ensuring that the relevant agencies and police are actually prepared for these laws to commence, taking into consideration the problems that Scotland had?

Jaclyn SYMES: Obviously, as I am no longer the minister responsible for this legislation, I would have to seek advice on conversations that have happened since I left the role, but the exact points that you made were subject to extensive consultation with Victoria Police in relation to ‘How much time do you need?’ They assured us in relation to their training and education that they could meet the implementation dates that are contained within the bill.

David LIMBRICK: I thank the minister for clarifying that. Recently in the New South Wales Parliament, they passed a similar sort of bill – not the same, but similar. In the Legislative Council there, this was the Crimes Amendment (Inciting Racial Hatred) Bill 2025, the Greens party moved amendments to remove exemptions – it was an interesting amendment – for quoting from or referring directly to religious texts. They were concerned about exempt conduct that would otherwise constitute racial hatred because it is presented under the guise of religious doctrine. Will the government be exempting quotes from or references to religious texts under these new offences, considering that there are some religious texts that are clearly racist and some people may believe those things?

Jaclyn SYMES: There is no specific exemption contained in the bill.

David LIMBRICK: Could that not be captured by preaching and proselytising if I was reading out those particular parts of a religious doctrine that were considered racist? Someone who has that protected attribute could take offence to that and I would find myself at VEOHRC.

Jaclyn SYMES: If it is genuine religious observance or practice, that is what the bill intends to be reflecting. It has to be reasonable and in good faith in that context.

David LIMBRICK: I suppose it is a question of precedents then really, because you have the potentially harmful speech weighed up against the exemption for preaching and proselytising. Certainly the New South Wales Greens thought that that balance was not right. What makes the government confident that they have got the balance right?

Jaclyn SYMES: I would say that given the genesis for this bill came from a parliamentary inquiry and then it had about three years of consultation, these were the exact issues that were worked through in relation to landing the wording and the balance. As I said in my summing-up speech, it is impossible to please everyone in this regard. We have landed in the best possible place. I have foreshadowed acceptance of some of the Greens amendments that again reflect the fact that there are various views in how this should be applied in practice. It is all about balance and bringing about the best outcome for Victorians. That is what the goal is. We think that we have done pretty well in that regard in being able to reflect a range of views – a lot of diverse views. But again I come back to the core: this bill is about ensuring that Victorians are safe, Victorians can be who they want to be and live freely, protected from vilification.

We keep coming back to that principle. Some of the questions that are raised can generally be answered by the purpose of the bill is to prevent harm, really serious harm, to people. That is the principle I keep coming back to when it comes to this bill. It is not about curtailing people’s views, particularly in relation to religion, sexual identity and the like. This is about ensuring that everyone, regardless of their background and their lifestyle, can live freely and when they are treated poorly there are avenues.

David LIMBRICK: With regard to compatibility with the Australian constitution, in particular political communication, there would be some types of political communication that one would think are racist, like, for example, a political belief that was very racist. There could be political beliefs that are based on religious views that are considered offensive. Is it not the case that someone who had, for example, racist political beliefs could challenge that and say, ‘This is a genuine political communication’ and therefore they could defeat this under the federal constitution?

Jaclyn SYMES: This is a good opportunity to talk about a topic that I do not think we have covered yet. The genuine political purpose defence was initially included in the incitement offence to ensure consistency with the constitutionally implied freedom of political communication and ensure that genuine political communication was not inappropriately criminalised. A wide range of stakeholders raised concern that the defence may be used to excuse vilifying conduct that is intended to be captured by the offence and that it would be misused to legitimise vilification under the guise of political communication. Although the defence was limited and unlikely to excuse a broad range of conduct, removing the defence responds to those concerns without impacting the operability of the offence or the overarching aims of the bill. The constitutionally implied freedom of political communication of course still applies, as High Court cases to that effect show, and it protects a range of political communications where the communication is genuine. The implied freedom does not include or permit violent threats, and other criminal law defences such as duress would continue to apply.

David LIMBRICK: I take the minister’s point that criminal threats and these sorts of things are not covered as genuine political communication, but certainly some of the other things here that we are talking about could potentially be considered by the High Court. What sort of advice has the government received as to the survivability of this sort of thing under a High Court challenge?

Jaclyn SYMES: Sorry, I think I caught the tail end of your question. I am not at liberty to share legal advice, as you would appreciate. We believe that most of the laws that we would pass here are potentially subject to constitutional challenge, but we are confident in that regard in relation to this legislation. As we have indicated, we have picked up an acknowledgement of the implied freedom of political communication.

David LIMBRICK: With regard to the practicality of these types of laws, considering the limitations that we spoke about earlier especially with regard to the civil scheme, if it is difficult to identify the person that is committing that offence and they may be in a different jurisdiction, isn’t it the case that this sort of activity will still continue to happen, especially online and on social media, and basically what we are doing here is not particularly enforceable?

Jaclyn SYMES: There is a range of conduct that will be captured by these laws. I would not want the perfect to get in the way of the good. There is a range of conduct that was shared through the development of this legislation that will be captured by these laws. People’s experiences on the streets and the intimidation, fear and vilification that they have been subjected to will be picked up by these laws. Yes, jurisdictional issues, particularly in the online world, are problematic. But the conduct that people complained about – the reason we are making these laws – can be captured by the laws, because they are real-life stories that we are responding to.

David LIMBRICK: Did the government consider exempting online activity from this law? It seems that things that happen on the street or in public places are very different in terms of enforceability compared to something that is on a social media platform. Did the government consider exempting online conduct?

Jaclyn SYMES: Not to go into too much of the policy deliberations that formed the development of the legislation, I can confirm as the minister that was responsible for the development of the legislation. Did I consider excluding online? No, I did not want to provide a green light and an express exemption for online vilification. Do I acknowledge that it is difficult to apply to a range of conduct, particularly in the online world? Of course I acknowledge that. This is not the first time that we have had laws made in this place that have these barriers.

David LIMBRICK: Will VEOHRC be able to cooperate with other federal agencies, such as the eSafety Commissioner, for example, to issue takedown notices? Because the eSafety Commissioner does have that sort of power to direct companies to take certain actions. Is that something that is envisaged that will happen, or is that not how this will operate?

Jaclyn SYMES: Mr Limbrick, as we have previously touched on, there are limitations in relation to the powers of VEOHRC to take action in relation to anything other than consent and seeking compliance and apologies and the like. My advice from the box is that there is nothing that would prevent sharing of information or indeed a referral to appropriate bodies that could take action if that was deemed appropriate.

Evan MULHOLLAND: I want to take you to a different section, which I am not sure you have been asked about. In part 3, amendment of Equal Opportunity Act 2010, section 102G(1) on exceptions provides that:

A person does not contravene section 102D or 102E if the person establishes that the person’s conduct was engaged in reasonably and in good faith –

…

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

Does this mean that VEOHRC or the DPP will just be deciding what is fair and accurate?

Jaclyn SYMES: Mr Mulholland, the answer to your question is yes, a tribunal, like a court, can seek to interpret and apply our laws.

Evan MULHOLLAND: Does that include the Victorian Equal Opportunity and Human Rights Commission?

Jaclyn SYMES: Courts and tribunals are included, yes.

Evan MULHOLLAND: Will VEOHRC and the DPP decide what is a matter of public interest?

Jaclyn SYMES: Will the DPP consider what is in the public interest? Was that your question?

Evan MULHOLLAND: Yes. Part of the exemption was an event or matter of public interest.

Jaclyn SYMES: Yes, well, the DPP constantly consider what is in the public interest in a variety of considerations for the application of laws and proceedings in the state. It is their job.

Evan MULHOLLAND: Let us give a hypothetical case. There was a cartoon last year by Mark Knight on immigration which the Australian Press Council found was not in good faith. Hypothetically, would a Mark Knight cartoon be captured by this legislation if it was not deemed a fair and accurate report of any event or matter of public interest?

Jaclyn SYMES: That is a hypothetical that I am not inclined to give my application of the law to.

Evan MULHOLLAND: It seems this is intended to capture, broadly, the media. Would I be right?

Jaclyn SYMES: Yes.

Business interrupted pursuant to standing orders.

Jaclyn SYMES: Pursuant to standing order 4.08, I declare the sitting to be extended by up to 1 further hour.

Evan MULHOLLAND: You have agreed that it is the intent of this particular section to cover the media. Would this also apply to opinion pieces in a major newspaper?

Jaclyn SYMES: Yes. I think I will just read out the section that you are referring to. You do not contravene the section of the bill in relation to conduct that is:

engaged in reasonably and in good faith –

that is the first test –

in the performance, exhibition or distribution of an artistic work –

which could, for example, pick up cartoons, as you indicated before –

or in the course of any statement, publication, discussion or debate made or held, or any other conduct engaged in, for … genuine academic, artistic, public interest, religious or scientific purpose …

So yes, the media would be a good example, reporting something that is in the public interest, of conduct engaged in reasonably and in good faith:

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

It goes without saying that the media’s day job is to report events and matters, and you hope that they are generally in the public interest. That is what is included. Then obviously we go on to subsection (2) of that section, which is about religious purposes:

… not limited to, worship, observance, practice, teaching, preaching and proselytising …

This is the area that is about balancing the reporting and public discussion and conversations and practising your faith. This is about the balance of where exceptions can apply. As long as it is behaviour that is reasonable and in good faith, it protects you from actions.

Evan MULHOLLAND: That was quite useful, Minister, giving a broad remit. I just want to give the example of someone that is a guest on a Sky News panel. Obviously the topic is in the public interest enough for it to be discussed on a national news program, and if someone makes commentary about that particular topic, let us say immigration, and someone with a protected attribute sees that as an offence, will the protection in section 102G(1)(c) in terms of public interest – that is, not religious or scientific – still hold?

Jaclyn SYMES: At the outset, Mr Mulholland, your exact question was about if somebody took offence to a comment that somebody made on a TV program. Merely taking offence to a comment is not intended to be captured by the laws.

In relation to the dissemination and the platform element of your question, I think we will come back to the conversation we were having just before about what ‘reasonably and in good faith’ means in relation to the exceptions, which is the caveat before the reporting or discussion. You have got to get over that one first. The term ‘reasonably’ has been interpreted by the courts to mean that the conduct was engaged in reasonably according to the objective standard of a reasonable person who is a member of an open and just multicultural society. ‘In good faith’ has been interpreted by the courts to mean a person’s subjective, honest belief that the conduct was necessary to achieve the purpose of the exception. ‘Genuine’ has been interpreted by the courts to mean that the person’s purpose for engaging in the conduct was truly their purpose and not some ulterior purpose. For example, a person cannot claim a religious purpose if their actual motivation was to spread hate.

In instances of appearing on a TV show, the same as publishing something online, that could be considered and would be likely to be considered to be ‘in public’ and therefore the conduct, if complained about, would go through those tests that we have been discussing.

David LIMBRICK: I would like to ask: what is to stop these laws being used as a new form of blasphemy law? Anyone that has religious beliefs has a protected attribute, and the test for whether or not it is serious contempt of their religious beliefs will be based on whether they feel it is serious contempt or not, not whether an objective reasonable person believes it incites contempt of their religion or not.

I can think of many situations where someone might draw a cartoon – in fact there have been many examples of this overseas – that most people would not see as inciting contempt, but people that are a member of that particular religion would, and therefore these laws could be used as a form of blasphemy laws, couldn’t they?

Jaclyn SYMES: The test still requires that it has to be from the perspective of a reasonable person in that category. So the element of reasonableness does not disappear; that is still a factor.

David LIMBRICK: Is it reasonable to draw a cartoon of a religious figure that may not be offensive to most people but that people who are members of that particular religion would find seriously contemptuous? Therefore they could claim offence to that, surely.

Jaclyn SYMES: Merely claiming offence to something is not what we are proposing be captured under the changes, Mr Limbrick. We have got high thresholds. We have crafted the laws in line with the recommendations of the inquiry about whether the conduct would be reasonably likely to be considered hateful. It will be assessed objectively from the perspective of a reasonable person with the same protected attribute. Whilst this focuses on the harm experienced by those who are targeted by vilification, it retains the objective reasonable person element to ensure that extreme or atypical reactions are not captured.

David LIMBRICK: I want to explore something related to that around the protected attribute. We keep saying ‘a person with the protected attribute’, but is that someone who believes in a religion – or indeed an atheist apparently has a protected attribute – or do they have to have the protected attribute and be a member of that same religious group in order for the court to form that opinion?

Jaclyn SYMES: I do not understand the question.

David LIMBRICK: I can clarify that if you want. A Christian person and a Jewish person both have protected attributes, right? If someone says something that is offensive to one of those religions but not offensive to the other, who has the protected attribute that will inform whether it is contemptuous or not? Everyone who has a religious belief has a protected attribute.

Jaclyn SYMES: What we are really getting at here, Mr Limbrick, is subgroups within protected attributes. The courts would be able to consider this in assessing the perspective of a reasonable person within a subgroup of people with the protected attribute. It would depend on the specific circumstances of the case, which will obviously be quite unique from time to time. On occasions where vilifying conduct is directed at a particular subgroup it may be appropriate for VCAT and the courts to assess the conduct from that subgroup’s perspective. You have given a good example in terms of religion as a protected attribute, but particular conduct can be offensive to one group who identify as or have a particular faith and be meaningless to another group, so assessing the conduct from the broader group may not allow VCAT or the courts to sufficiently consider the unique appearance, beliefs or experiences of the subgroup, so they would be able to look at that. I think I have got an example here: a person living with multiple sclerosis would be protected under the bill under the attribute of disability. If a person living with MS is vilified because of their MS, the harm would be assessed from the perspective of a reasonable person with MS rather than a reasonable person with a disability more broadly. This is because the attribute of disability is broad and covers a range of disabilities including physical or psychological disability and disease.

Georgie CROZIER: Minister, I just want to go back to the issues that Mrs Broad has raised, and Mr Mulholland and now Mr Limbrick, in relation to cartoons. You did say that that would be captured under this bill if it offended certain persons with those protected attributes. I think the brilliant cartoonist Mark Knight has been mentioned, and it often can be a work of art that he does. You said that artistic work is considered. What is the threshold for somebody like Mark Knight, who is a brilliant cartoonist who often does have those subjects in his cartoons? What is the threshold for somebody like that to be deemed artistic? Has it got to be decided on by the panel and the tribunals that you have described, if somebody takes offence?

Jaclyn SYMES: At the outset, Ms Crozier, the exception where artistic work is protected has been in existence for some time. In fact it is currently part of the Racial and Religious Tolerance Act, so this is not a new concept that we are introducing and obviously it is not something that has not been brought before the courts before. I come back to the issue that I spoke about with Mr Mulholland: to enact the exceptions of academic, artistic, public interest, religious or scientific, you still have to get over the first hurdle of ‘genuine’. The term ‘genuine’ has been interpreted by the courts to mean the person’s purpose for engaging in the conduct was truly their purpose and not for some ulterior purpose. For example, you cannot engage in serious vilification behaviour or seriously vilifying conduct of a particularly harmful nature and say, ‘It’s a cartoon, so I’m exempted.’ You still have to first meet the fact that it is genuine in relation to having a true purpose that is not to cause hate. For example, you cannot claim an artistic exemption when your actual motivation is just to spread hate.

Gaelle BROAD: I am just wondering if comedians are covered by this exemption.

Jaclyn SYMES: Again, if it is for a genuine purpose, the answer is yes, they can be covered by an exemption.

Georgie CROZIER: But again, Minister, that is exactly the point in relation to the question Mrs Broad asked earlier when she asked you about cartoons. You said yes. She has asked you again about comics, and you have said yes.

Jaclyn SYMES: Yes. You cannot use it as a cover for alternative purposes.

Georgie CROZIER: But it could be deemed by some groups that might view the act in a comedy or, as has been said, in a newspaper article or in a cartoon to be offensive. Are you saying there is some sort of media defence in that situation?

Jaclyn SYMES: Comedy and satire and performances are forms of artistic expression. But again, I come back to that you cannot just say, ‘I’m a comedian, and I’m going to stand on a corner and I’m going to spew hate about how I hate somebody who happens to be a Jew or gay.’ Right? That is not what we are talking about here. If you are performing and you are not using that as a cloak to be awful, if you say things that are merely offensive, first of all, it is not captured, but under the new civil anti-vilification protections the bill continues to provide exceptions for conduct engaged in reasonably and in good faith. That is what we need to come back to. For a genuine artistic purpose or in the performance of artistic work, comedic performances such as stand-up comedy are not intended to be captured by the civil anti-vilification protections. In relation to the new serious vilification criminal offences, whether comedy and satire would be captured will depend on the individual circumstances of each case and whether the joke or comedic content constitutes conduct that meets the high criminal thresholds. You cannot just use the fact that you are a comedian to give yourself immunity from anti-vilification laws, nor would I think anyone in the chamber expect that you could.

Gaelle BROAD: Can I just ask, then: if that does come into play, what is the maximum penalty that would apply?

Jaclyn SYMES: Your question is a little unclear to me. Do you want me to go back through the offences that the bill is creating?

Gaelle BROAD: I guess, with the cartoons, for example, or a comedian, if it is found to be offensive, what –

Jaclyn SYMES: If it causes incitement, it is three. If it is threatening, it is five.

Bev McARTHUR: Minister, would a flyer that highlights binary sex for males and females, distributed in the community, be considered hate speech?

Jaclyn SYMES: Mrs McArthur, I am not going to go into applying the laws to hypotheticals, but a flyer that has content that breaches the laws and meets the high thresholds of vilification could be captured, yes.

Bev McARTHUR: If someone with protected attributes finds crosses offensive, as in the case of Methodist Ladies’ College, will crosses be captured in the law?

Jaclyn SYMES: Mrs McArthur, would it be helpful if we came back to the purposes of the bill and the offences and the thresholds?

Bev McARTHUR: Minister, we are all entitled to know, and the community is entitled to know, exactly who and what will be captured under these laws. If we give you reasonable questions about what might be a situation –

Jaclyn SYMES: I would welcome reasonable questions.

Bev McARTHUR: Well, this is reasonable. A cross that someone finds offensive, as we have had a case of: will that be captured under these laws?

Jaclyn SYMES: Merely finding something offensive will not be captured by these laws.

Bev McARTHUR: So, Minister, if nurses refuse to attend a male who demands treatment in a female hospital ward, would that be considered hateful speech or vilification of a protected attribute?

Jaclyn SYMES: Denying service to someone based on an attribute is already illegal under the Equal Opportunity Act. These laws are for separate conduct. What you are referring to is already captured under the Equal Opportunity Act if you are denying someone services, if you are denying someone health care, based on your view of their sexual identity.

Bev McARTHUR: Minister, if a parent or parents expressed concern that same-sex toilets for primary aged schoolchildren were inappropriate and a principal or staff or other parents took offence, would that be captured under these laws?

Jaclyn SYMES: No.

Bev McARTHUR: That is pleasing to hear, even though a case is before us. Minister, are you saying that the courts will be the ultimate decider of the terms, the definitions like ‘reasonable’, ‘in good faith’, ‘in public interest’, ‘likely to’ and ‘seriously vilify’? Are they the ultimate determinator in these laws?

Jaclyn SYMES: Yes – like every law we pass in this place.

David LIMBRICK: I have already discussed with the minister the concept that we have protected attributes and then subgroups of those protected attributes. The example before was we can have religion as a protected attribute and then a subgroup of that could be a particular religion. For the criminal offences, how does the government expect a judge to direct a jury to put themselves in the place of someone with a subgroup of a protected attribute? It seems like an almost impossible task for a judge to instruct a jury to put themselves in that place, doesn’t it, especially considering that we already established earlier that it is essential for someone to form the view of whether or not something is vilifying for them to be a member of that group. How can a jury form that view?

Jaclyn SYMES: Mr Limbrick, the subgroups and the reasonableness test are for civil. We do not talk about subgroups in criminal. So you are picking up the test and putting it in the wrong jurisdiction.

Gaelle BROAD: Just going back to this protected attribute, the test moves away from the objective reasonable person test to a more subjective one. I guess the government did confirm in briefings to the Shadow Attorney-General that subgroups or groups with a protected attribute will have to be considered separately from other subgroups. How is it reasonable or fair to expect every Victorian to know what a particular subgroup of a group with a protected attribute may regard as seriously contemptuous or severely ridiculing?

Jaclyn SYMES: Mrs Broad, you will appreciate we had a conversation earlier about recklessness and intentionally, but what you were touching on also is could a person inadvertently contravene the provision because it is the harm-based protection from the perspective of a reasonable person with a protected attribute. It is unlikely that a person would inadvertently contravene the harm-based protection because the threshold for the harm-based test remains so high. It captures conduct that is hateful, serious, contemptuous, reviling or severely ridiculing of another person or group because of their protected attribute. Again, it might be a problem if the threshold was capturing offensive comments, but it is not.

Bev McARTHUR: Would Jesus being mocked in the Mardi Gras be considered hate speech and captured by this law?

Jaclyn SYMES: Mrs McArthur, what attributes does the Jesus that you are referring to have? It is a ridiculous situation that you are putting. You are making a mockery of this legislation, and I find your question really offensive.

Bev McARTHUR: Minister, I find your response offensive to the people who respect Jesus.

Jaclyn SYMES: Which Jesus?

Bev McARTHUR: Which Jesus?

Jaclyn SYMES: Jesus is not walking around the Mardi Gras, is he?

Bev McARTHUR: Jesus in the Christian sense, Minister.

Jaclyn SYMES: A pretend Jesus.

The DEPUTY PRESIDENT: Can we have some decorum, please? Mrs McArthur has the call.

Bev McARTHUR: I do find that actually offensive. This occurred where Jesus, the Jesus that people know in the Christian Bible to be part of their religious belief, was mocked in the Mardi Gras. They may well have found that offensive. Will that be captured under this law?

Jaclyn SYMES: Mrs McArthur, if I take your question literally and your reference to Jesus, your hypothetical is impossible because Jesus has not attended the Mardi Gras unless he has come back to life in a recent turn of events that I am unaware of. So your hypothetical situation is making a mockery of serious legislation. I am more than happy to entertain your questions, but the literal reality of your hypothetical is even beyond hypothetical if I am to take your comments about the particular Jesus that we are referring to as the Jesus that is in the Bible and you are saying is he attending the Mardi Gras –

Ann-Marie HERMANS: I will just explain for the sake of the minister. Minister, there was a situation recently at the Mardi Gras where a statue of Jesus was depicted and was jeered at and made fun of, which was highly offensive for many religious believers, and it would have been seen as a way of vilifying their actual faith to take the symbol of their faith and their God and to take it in a way that was being made fun of and was in fact therefore making fun of everyone from that people group that may actually have followed Jesus and believed in Jesus to be more than just a statue. So in this situation the question is: could this be seen as a form of vilification? The question arises because one of the most vilified people groups in this state are actually people of religion who have the Christian faith as their religion.

Jaclyn SYMES: As I said at the outset, these laws are designed to protect people’s right to practise their religion. Religion is a protected attribute. Mrs McArthur’s question did not refer to a depiction of Jesus; in fact she followed it up by making very clear that I was certain of the particular Jesus that she was referring to, and she referred to an individual. It also is a situation that, as I understand it, the Mardi Gras happens in Sydney, so we are talking about a hypothetical of a real person and a depiction in a different state. It would be –

Georgie CROZIER: Would you say the same about Mohammed if Mohammed was depicted in this way?

Jaclyn SYMES: I am not reflecting on the behaviour. I am reflecting on the fact that you are trying to draw me into a hypothetical that is not something –

Georgie CROZIER: That is not hypothetical. That actually happened.

Jaclyn SYMES: You saw Jesus in Sydney?

The DEPUTY PRESIDENT: Through the Chair, please.

Jaclyn SYMES: She said it was the real person. That is what she asked about.

The DEPUTY PRESIDENT: Minister!

Jaclyn SYMES: She did! Mrs Hermans has clarified.

The DEPUTY PRESIDENT: Minister, through the Chair, please. No arguments across the chamber.

Jaclyn SYMES: I was responding to her interjections.

The DEPUTY PRESIDENT: No, you were not. It was arguments across the chamber.

Ann-Marie HERMANS: Just to clarify, this is not a hypothetical; this is an actual situation that has happened.

Jaclyn Symes interjected.

Ann-Marie HERMANS: No, this was the situation that Mrs McArthur was referring to. It was an actual situation that happened recently. The depiction was on social media as well and was available to all Victorians to be able to view. It was seen to be offensive to many people of religious belief, so the question was: would this be captured in this bill and would people who have become offended by this be able to then take action against the ones that posted and/or participated in this form of mockery?

Jaclyn SYMES: No, because it happened in New South Wales.

Georgie Crozier interjected.

Jaclyn SYMES: You are referring to a real-life situation now.

The DEPUTY PRESIDENT: Excuse me, can we just have one person talking at a time, please.

Georgie CROZIER: I am not sure the minister has understood what Mrs McArthur is referring to. This situation happened, and it was widely reported. It was depicting a statue of Jesus and somebody was making mockery and using it to offend those who have that religious belief. If it was the Prophet Mohammed, would that be captured in the same way? It could have offended those who are of that particular religious belief. This is the point. It did happen. It is not like you make out, that Mrs McArthur is making some ridiculous assertion that Jesus is up and living. It happened at Mardi Gras, and there were people that took great offence. Are you aware of what happened at Mardi Gras as Mrs McArthur has described or not?

Jaclyn SYMES: This is the problem with trying to articulate something. What started as a hypothetical situation has been clarified as a real-life example. My answer to Mrs Hermans was because it happened in New South Wales, the answer –

Georgie CROZIER: It could happen here.

Jaclyn SYMES: That is not the question that you asked.

Members interjecting.

Georgie CROZIER: But you knew what she was inferring.

Jaclyn SYMES: On a point of order, Deputy President, can I ask for your guidance? If I answer a question and then I am told, ‘She was inferring something,’ that is making my job pretty difficult.

The DEPUTY PRESIDENT: I think that this has got a little bit out of hand with interjections across the chamber. Can we please just get back to asking straight questions through the Chair.

Ann-Marie HERMANS: I just want to go back and clarify something with the minister. Maybe a couple of hours ago we went through this. If an activist lived in, say, New York, London or Timbuktu and made a complaint to Victoria Police about something that they saw, whether it be a private email, something on social media or something that happened at Mardi Gras, and that was put to Victoria Police and found to be severely ridiculing, would they be able – and the answer was yes – to see this as something that was inciting conduct? But now I am being told that it is not inciting conduct. I would just like some more clarification on this, because it seems to me that a couple of hours ago the answer was yes and now the answer I am getting appears to be no. Minister, could you please clarify this?

Jaclyn SYMES: Let us break this down a bit. Yes, conduct that occurs outside of the state needs to have a direct link to Victoria. So for an accused outside Victoria engaging in inciting or threatening conduct on the grounds of a protected attribute the offences can apply. In the example that was provided – and we have worked through a couple of elements of that situation – I was asked whether it causing offence would be captured by the laws. I think I have repeated continually that merely offending someone does not contravene the laws that are being proposed. If there is an example where there is an offence under the bill that is based on the protected attribute of religion, and the one we have been talking about is Catholicism –

Members interjecting.

Jaclyn SYMES: Christianity or Catholicism or another subgroup. If there is conduct that meets the threshold and is based on somebody being a Christian, that is a protected attribute under the protected attribute of religion. So yes, it could fall under the incitement offence if the conduct was more than merely offensive and extended to attracting the elements of incitement or threatening behaviour, again bearing in mind there could be other factors such as artistic expression that could apply in an instance where you are involved in a festival or the like. This is why I am answering all of the considerations that the court might look at in a situation such as this. It is not the job of the Parliament and the legislators to apply the law, but there are a range of factors that are obviously relevant and of concern to you, Mrs Hermans, in particular. The laws are designed to protect people from vilification, from hurtful, harmful, awful conduct, and if that is because of your religious belief, that is what this is designed to pick up.

Evan MULHOLLAND: I am just following on from the discussion, and I promise I will get off this one particular topic.

Jaclyn SYMES: You have missed out.

Evan MULHOLLAND: I have already raised it in the Parliament, and once is probably enough. If an individual from Victoria witnessed a depiction of Jesus being mocked at the Mardi Gras on television or on social media and the image of an Indigenous man spearing Jesus on the cross was displayed and considered that their protected attribute of religious affiliation was being vilified – and there are lots of subsets and different types of Christianity; for example, people in the Maronite church were incredibly offended by that depiction, many of them to the point of tears, I know, whereas someone from the Uniting Church might not take particular offence to that – would that meet the test under this bill? Would the equal opportunity and human rights commissioner, the DPP or even VCAT have to look at the subset of the protected attribute? Also, is it not the case that a person in Victoria would be able to take someone to court under these laws?

Jaclyn SYMES: Mr Mulholland, starting at your final point, referring to clause 4, new section 195N ‘Incitement on ground of protected attribute’ has an example that is constructive to the conversation that we have been having. Conduct that is engaged in from outside Victoria and is against a group of persons defined solely by the possession of a protected attribute does not constitute an offence against subsection (1):

Example

If a person in another State engages in conduct that is against all people of a certain race, whether or not those people are within Victoria, that conduct does not constitute an offence against subsection (1).

Probably the issue that I have with the commentary that we have here is that if the conduct offends or passes the thresholds, which are high, I acknowledge that there can be really hurtful, offensive conduct that makes people upset and makes them cry that is unlikely to meet the threshold. Just being offended and being upset by something that someone does is not the conduct that we are trying to capture here. It is not conduct that I condone, but we have very high thresholds in the bill for this very reason.

Evan MULHOLLAND: Also for civil harm.

Jaclyn SYMES: Yes, the civil thresholds are also designed to avoid merely being offended, even if you are quite upset by it.

David LIMBRICK: Can I just clarify the minister’s previous answer. Is the minister saying that the scenario outlined by Mr Mulholland and others would not constitute inciting serious contempt?

Jaclyn SYMES: It is not for me to say.

David LIMBRICK: But to me it seems like it is pretty serious contempt, and it certainly would be viewed as such by someone from the Maronite faith, for example.

Georgie Crozier: What if it was Mohammed?

David LIMBRICK: Yes.

Jaclyn SYMES: I was responding to the way Mr Mulholland described the impact. He said that people were really upset and offended. That is what I was responding to.

David LIMBRICK: But surely they could have been offended because they were being held in serious contempt.

Jaclyn SYMES: If conduct meets the thresholds, then the laws would be enacted. If it is merely offensive to someone, that is not what is intended to be caught.

Ann-Marie HERMANS: But section 102D refers to public conduct that could be considered hateful against another person, and in that situation, then –

Jaclyn SYMES: Where are you?

Ann-Marie HERMANS: Section 102D, which refers to public conduct that could be considered hateful against another person. This is where we are coming back full circle to the concerns that we have. That word ‘hateful’ is subjective, but in this case that behaviour and the mockery et cetera would have to be considered hateful. Such hate is what this bill is all about, so if that level of hate has been demonstrated publicly and posted throughout social media to be visible to many Victorians, of which subgroups find they start to fear for themselves because it is hateful conduct that is being allowed, surely the bill applies then in this sort of scenario and situation because it is considered to be hateful conduct.

Jaclyn SYMES: Mrs Hermans, what you are referring to is the civil scheme. You have now switched from the criminal to civil. The offence of incitement is in the criminal system, and what you are referring to are the civil tests. I think you are confusing the two. Yes, they are saying that is what you are doing. Your question does not really flow, because you are applying a civil test to the criminal situation of the incitement offence.

Evan MULHOLLAND: Minister, in Tasmania the Archbishop of Hobart Julian Porteous was the subject of a 2015 complaint by an activist to the Tasmanian anti-discrimination commissioner under laws similar to these for daring to publish a booklet entitled Don’t Mess with Marriage. The commissioner actually decided that the bishop had a case to answer. The matter only ended when the activist withdrew her complaint to avoid a lengthy tribunal process after conciliation had failed. If you could just walk me through these particular laws, particularly the religious purpose defence, would that apply before a case is taken up by the Victorian Equal Opportunity and Human Rights Commission?

Jaclyn SYMES: What was your final question?

Evan MULHOLLAND: I am just wanting to talk you through that scenario.

Jaclyn SYMES: Just ask the question without applying it to a situation.

Evan MULHOLLAND: Would there be a conciliation process or an application process whereby claims are looked at and individuals are either hauled before a tribunal or a court prior to a religious purpose defence kicking in?

Jaclyn SYMES: Are you asking about the processes at VEOHRC and how an application would proceed?

Evan MULHOLLAND: Yes. If it helps, I am asking you: at what point in the process does a religious purpose defence kick in?

Jaclyn SYMES: Mr Mulholland, I am not quite sure about your question. VEOHRC cannot consider an exception before it is before them, so I am really unclear what you are asking, sorry.

Evan MULHOLLAND: I am asking you if an individual is accused but has a substantial claim for a religious purpose defence, in what process is that applied in the civil harm side of the bill?

Jaclyn SYMES: Apologies, Mr Mulholland, I just needed a bit of assistance to break down your question. It is not dissimilar to other civil actions. If you are asked to respond to a complaint, that would be the opportunity to raise the defence of an exception or explain the exception. The same applies in defamation, for example.

Evan MULHOLLAND: Particularly in these kinds of cases, as we have seen in Tasmania with Bishop Porteous, what are the measures the government will take to prevent vexatious complaints made against people of faith that quite clearly have an exemption.

Jaclyn SYMES: I think it particularly important to point out that, for instance, VCAT has the capacity to award costs against vexations litigants. That is part of their powers in relation to their act. In relation to VEOHRC they can knock vexations claims out once the facts become evident, if that is indeed what has happened. Without reflecting on a particular case that you are referring to, there is not an experience of a flood of vexatious complaints in relation to laws such as this. You could look at defamation laws, for example, or discrimination laws – they are not something for which we experience a floodgate effect of spurious claims.

Evan MULHOLLAND: I will just respond to that question, because the Attorney-General’s briefing actually mentioned that similar law reforms in Scotland had led to an explosion – I think that was the word used – of civil claims immediately after they came into operation. You mentioned that there are costs that could be awarded by VCAT against someone who is inappropriately called before it. In terms of the complaint process to the Victorian Equal Opportunity and Human Rights Commission, if a decision is seen to be in error or incorrect through the Victorian Opportunity and Human Rights Commission, what would be the recourse for an individual in that circumstance?

Jaclyn SYMES: It is difficult for me to provide an answer to that scenario without having facts and circumstances. There are avenues for defamation if that has made its way to the public arena, for example, and is the result of a vexatious, unsubstantiated claim, but I cannot go into an exhaustive list of what might happen in relation to a detrimental course of action. Again, it is not my job to apply it to situations case by case, but it would depend on particular circumstances. But that would be outside the VEORHC process; VEORHC do not have power to do it themselves, if that makes sense.

Evan MULHOLLAND: I just want to ask about representative complaints – I know this was briefly touched on with Mr Limbrick earlier – and particularly representative bodies. I am talking about section 114A, to be helpful. Does the law create a situation where an activist organisation could target speech or conduct by seeking out anonymous complaints from individuals?

Jaclyn SYMES: There is protection against that, Mr Mulholland. Criteria that would be applied include – again, this is picking up on recommendations from the inquiry – facilitating a representative organisation to bring a complaint without the need for a complainant to be identified. The caveats are that VEOHRC have to be satisfied that the person represented is entitled to bring a dispute, the person has consented to it being brought on their behalf and the representative body has a sufficient interest in the dispute. There are protections about inventing people or falsifying that type of information. Those are the things that VEOHRC would consider in relation to these matters. Very regularly, referring to the parliamentary committee’s report, this is about protecting individuals that have suffered harm. It is not about facilitating a particular interest of a representative group. They are there to facilitate the anonymity, privacy and safety of an individual. That is the purpose.

Evan MULHOLLAND: I thank you for your clarification, Minister, because if I am not mistaken, the bill that former member Ms Patten brought to this chamber sought to actually fund a number of legal activists to run fishing expeditions or test cases. I am just clarifying, for the sake of this committee, that groups soliciting complaints would not be the intention of the government.

Jaclyn SYMES: It is about ensuring that those individuals or that group of individuals that have suffered harm are not prohibited from bringing their claim forward because they are worried about identifying themselves. The experience and the feedback from consultation of people that have been subjected to vilification is that it is particularly harmful; it is isolating. They are concerned that by making a complaint it will make it worse for them, and they are scared to do so. We do not want people who are fearful of making a complaint deterred from coming forward if there is a representative body who can ensure that that complaint, particularly where it relates to something that might continue to happen to other people, can be brought forward and dealt with at VEOHRC. As we have discussed, VEOHRC is about bringing people together, discussing issues and having consensual outcomes and the like, and for that purpose you can bring about some good without having to expose someone who might be fearful.

Business interrupted pursuant to standing orders.

Jaclyn SYMES: Apologies to the chamber. I did not realise how late it was. I would normally converse with other parties to see where we are at, but I am just going to put the extension motion. Pursuant to standing order 4.08 I move:

That the sitting be extended.

Council divided on motion:

Ayes (22): Ryan Batchelor, John Berger, Lizzie Blandthorn, Katherine Copsey, Enver Erdogan, Jacinta Ermacora, David Ettershank, Michael Galea, Anasina Gray-Barberio, Shaun Leane, Sarah Mansfield, Tom McIntosh, Rachel Payne, Aiv Puglielli, Georgie Purcell, Harriet Shing, Ingrid Stitt, Jaclyn Symes, Lee Tarlamis, Sonja Terpstra, Gayle Tierney, Sheena Watt

Noes (17): Melina Bath, Jeff Bourman, Gaelle Broad, Georgie Crozier, David Davis, Moira Deeming, Renee Heath, Ann-Marie Hermans, David Limbrick, Wendy Lovell, Trung Luu, Bev McArthur, Joe McCracken, Nick McGowan, Evan Mulholland, Rikkie-Lee Tyrrell, Richard Welch

Motion agreed to.

David Davis: On a point of order, Deputy President, this late sitting is entirely unscheduled and could have been handled differently. We could in fact sit later in the week. In this circumstance I am concerned about the staff and would point out the comments over here by Mr Berger. But it may be an appropriate time for a break for half an hour to give the staff and members an opportunity to rest and to go for their various breaks to enable them to proceed in greater comfort.

The PRESIDENT: Just to respond to the point of order, I had a long conversation with the Clerk of the Legislative Council about rostering people on and off and making sure they have breaks. He was comfortable that the staff were comfortable to continue and proceed in the fashion that we are.

David Davis: Further to the point of order, President, you may well have had that conversation, and I commend you for such conversations. But that is only part of the point. The point here is that the staff will be impacted, and the chamber could have been organised quite differently. I think there is also the matter of members.

The PRESIDENT: Mr Davis, neither you nor I talk on the staff’s behalf as far as the impact. There has been a conversation, as there is every time that we have an extended sitting. I have a conversation with the Clerk and staff members. Their preference is to roster on breaks because all of them do not have to be in here, so they roster on that they will have a break. Their preference is to continue, and maybe they will get home half an hour earlier than with your suggestion of a half-hour break. No-one has any greater love for the staff than me, so trust me that if I thought there was a real concern about staggering breaks and rostering on and off in this chamber I would be in league with you. But I have had a conversation and I think it is a good way forward. Thank you. That is the end. I will leave the chair and the committee will continue.

The DEPUTY PRESIDENT: We return to questions on the legislation.

Evan MULHOLLAND: Just to continue where we left off, we talked about how you cannot be anonymous at VCAT – I think it was discussed earlier at length. I will take you to section 114A(2). It provides that the commission does not even need to know the identity of the unnamed person. Is that correct?

Jaclyn SYMES: Clause 13, which inserts that new section, as you correctly identify, runs through a representative body that may be able to bring a dispute on behalf of an unnamed person. The commission must be satisfied with the requirements that we were discussing prior to the division. The commission do not need to know the identity of the persons referred to in that provision, but they still have to be satisfied of those other factors.

Evan MULHOLLAND: How can the commission possibly know if the complaint is real?

Jaclyn SYMES: Mr Mulholland, again, as recommended by the inquiry, the unanimous bipartisan report from a few years ago, it is about enabling a representative to bring a complaint without the need to name a complainant. If VEOHRC is satisfied the person represented is entitled to bring a dispute, the person has consented to it being brought on their behalf and the representative body has sufficient interest in the dispute. VEOHRC must be satisfied of these requirements without knowing the identity of the person or persons being represented. There may be instances where they know the person, there may be instances where it is de-identified, but the facts are well set out. Merely knowing the person’s name is not a requirement, but there is still the expectation – in fact legislative expectation – for VEOHRC to satisfy themselves of those three elements.

Coming off the back of the conversation that we were having, the protection mechanism here as well is that VEOHRC is voluntary. If the respondent has a concern about the validity of the claim based on the fact that the identity is not revealed, they may seek on those grounds not to engage in the process.

Ann-Marie HERMANS: I know that a few hours ago we touched on something, and there is a reason why I am coming back to it, so I just want to clarify it first. We talked about the tenets of some religious faiths being confronting to some people and how religions can sometimes lay down strict rules for how people should live and act and prescribe dire consequences for those who disobey those rules. Some of these teachings may be offensive to some people, including some people with a protected attribute. Just before I go into the next bit of this, can I ask again just to clarify: how can the government guarantee that this bill will not see religious faith put on trial by activists who wish to silence teachings that they find offensive?

Jaclyn SYMES: Mrs Hermans, again, it is not designed to pick up conduct that people find merely offensive. That is my answer.

Ann-Marie HERMANS: In this situation with this bill, is it going to be able to be applied retrospectively?

Jaclyn SYMES: The legislation is not retrospective.

Ann-Marie HERMANS: So if it is not retrospective but the impacts of the actions of people in recent times have impacted someone severely to the point that maybe they have lost their career based on their own religious beliefs that have been made public, is there any ability then for someone in that situation to then turn around and claim that vilification in that instance?

Jaclyn SYMES: These laws are not retrospective.

Evan MULHOLLAND: Just going back to what we were discussing earlier –

Jaclyn Symes: There is a lot.

Evan MULHOLLAND: Yes, there is a lot. Just on the identity of the unnamed person – the person not having to be identified – what safeguards are in place for both VEOHRC but also a representative body to not act maliciously or fake an individual? Is there any penalty for not acting in good faith with the intent of the legislation?

Jaclyn SYMES: I think I have gone through that in relation to the criteria that VEOHRC have to apply before they proceed with a consideration of a matter that involves an unnamed or an unidentified person. It is a requirement of VEOHRC to apply those, and I repeat in relation to the capacity of participants to withdraw from participating in the process if they are concerned about anything in that regard. I do not want to verbal VEOHRC, but it is important to them that there is confidence in being able to deal with complaints; it is not in their interests to be in a position where they are entertaining frivolous and vexatious complaints, so I expect that for these laws to be meaningful they would be pretty fierce guards of the integrity of the laws.

Evan MULHOLLAND: Just broadly, has the government consulted with stakeholders regarding any amendments under consideration on this bill?

Jaclyn SYMES: The answer would be yes, and the reason I answer yes confidently is a lot of the amendments that have been put up by various parties have actually already been considered in the development of the bill. So as I was explaining to, I think, Ms Purcell, about balancing people’s views and interests in this bill, at the outset it was actually really rewarding to go and have conversations with various groups about what they wanted to see in laws. A lot of the issues that you are raising in your questions are not new topics for me; I might have been out of the space for a while, but I was in it deeply for a long time. We talked through the laws, the application and the words. We talked about DPP consent or not. We talked about attributes. We talked about the wording of attributes like this. Of all of the bills that I have been connected to, this would be the bill that has been the most open and transparent and discussed and examined and had hypotheticals run through it and conversations with people that are for and people that are opposed. So the answer to your question is yes, because we have considered so many of the terms and therefore picked up probably a lot of the amendments that have been discussed today. In relation to the specific amendments that the government moved in the Assembly, that was a direct result of stakeholder engagement once the bill was public and in the Parliament. We did not just say ‘We’re going to amend it because we feel like it’ – it was based on in-depth consultation with people who wanted to see the bill pass and make sure that any of their concerns were picked up, and that is what certainly drove those. In relation to the amendments that the Liberal Party have put forward and the Greens have put forward, I am not aware of the level of consultation any further than how I have explained to you that there is nothing that has been presented that is new to me, so they have already been subject to extensive conversations.

Evan MULHOLLAND: Just continuing along the lines of consultation, are you aware if groups like Victoria Police have been consulted on potential amendments to this bill?

Jaclyn SYMES: Are there any particular amendments that you are –

Evan MULHOLLAND: The particular amendments are removing Victoria Police’s role in determining an offence and particularly whether Victoria Police and the Chief Commissioner of Victoria Police were consulted.

Jaclyn SYMES: Mr Mulholland, I am not sure in relation to these amendments. What I can be open with you about is that the government’s position in relation to removing DPP consent was certainly subject to a conversation with the former chief commissioner, who supported the removal of DPP consent. In fact I would go as far as to say that was the position that VicPol advocated for. I am already on the record discussing this. It is an area that you have expressed a concern with. I have some hesitation in bringing it back, but there is merit on both sides. The Attorney, through her conversations with the Greens, has been convinced that that protection measure does not undermine the intention of the laws. As the former minister who introduced the bill to the Parliament, I could have gone either way as well. I think it is something that we should keep an eye on to make sure that it is not an inappropriate barrier, slowing up any of these potential cases. However, there is a strong argument for protection of vulnerable cohorts in relation to DPP consent. So it is really a ‘not sure who’s right’ situation in this case. Through genuine good-faith negotiations, the government will be supporting the Greens amendment in this matter.

Evan MULHOLLAND: Perhaps the real reason it was agreed upon was to ram this bill through and get a deal done. You also mentioned that stakeholder engagement since the bill was first introduced into the lower house took place, which led the government to making some changes. Preaching and proselytising were added into the religious purpose defence. Does the government still agree with those changes without any sort of clarification towards the end of that?

Jaclyn SYMES: I do not understand your question, and neither did the box.

Evan MULHOLLAND: Does the government still agree with the current religious purpose defence as written without any insertion afterwards, as is being circulated in the Greens amendment about conformity with particular doctrines?

Jaclyn SYMES: My view is – and I should not give an opinion – it is the government’s position that the Greens amendment is a clarifying amendment and does not make a substantive change to the intention of that clause.

Evan MULHOLLAND: Has the government consulted with faith groups on that amendment?

Jaclyn SYMES: As previously explained, Mr Mulholland, I am not across the level of consultation in recent weeks, short of saying that this bill has been subjected to extensive consultation, particularly in relation to religious exceptions.

Evan MULHOLLAND: I am aware that this bill has been the subject of a lot of consultation, and I would state as a credit to you, Minister, that you would have undertaken such consultations on such serious amendments, but from what I can gather, faith groups have been completely left in the dark at this amendment that we only just saw a few hours ago that supposedly has already been agreed to by a government that invites faith communities into government offices at taxpayer expense to meet and greet and talk about how much they support groups like diverse Christian communities, yet do not have the capacity to consult said faith groups or faiths about such a significant change. I will add that as a comment, but I would say to you, Minister, that in the past I have seen that you have gone out of your way to consult particularly on amendments as well, and that does not seem to have occurred from this part-time Attorney-General.

Jaclyn SYMES: I think that is slightly inflammatory and unfair commentary, Mr Mulholland. It was consulting with faith groups that brought us to a position of adding in preaching and proselytising to avoid doubt. In relation to the Greens amendment – and we are talking about an amendment that has not been moved yet, but obviously it has been circulated – what we are talking about is their proposal to add ‘that is in conformity with the doctrines, beliefs or principles of that religion’. As I said, I think it is a clarifying set of words that is unlikely to do anything other than confirm the intention of the clause. That is certainly my understanding – I have got some nodding from those that have proposed this. I reckon having a clause that has now been added to twice, has been pretty much subjected to a lot of consultation and has had a lot of views of people considered in relation to that is clarifying, as I said. I am also advised that it is existing in legislation under section 82B of the Equal Opportunity Act, so it is not something new that is a big change.

David LIMBRICK: On this proposed change – and I take in good faith the consultations around the addition of proselytising – this addition that we are talking about adding here, ‘that is in conformity with the doctrines, beliefs or principles of that religion’, implies that someone needs to decide what is in conformity. Isn’t that implying that VEOHRC will be deciding on religious doctrine?

The DEPUTY PRESIDENT: Mr Limbrick, are you asking questions on the amendment?

David LIMBRICK: Yes, we were just discussing the amendment.

Jaclyn SYMES: It was kind of where we went.

The DEPUTY PRESIDENT: We did decide earlier in the evening to keep the questions and discussions on the amendments to when we move the amendments, because it is the person moving the amendment that you should be asking those clarifications of.

Ann-Marie HERMANS: I am also aware that the Racial and Religious Tolerance Act 2001 covers, as you have mentioned, the electronic transmission of material, and you have talked about protected attributes, whether they be disability, gender identity, race, religious belief or activity, sex, sex characteristics, sexual orientation, personal association et cetera. In this particular bill, however, if were to take, for instance, not just religious doctrine but religious scriptures, you would find in potentially all religions that there will be within their doctrines, their scriptures or their religious or holy books lines that could be considered hateful, offensive or inciteful to a number of people. Given that a person may then quote a scripture online, which I know was a question before, that may be considered inciteful or hateful to another person of another belief, how will the person who actually holds dear those religious beliefs and those religious scriptures be protected by this law if they actually quote from their own religious doctrine and it is considered to be inciteful or hateful?

Jaclyn SYMES: I think what you are presenting, Mrs Hermans, is the exact reason that we have the exceptions. That is what they are designed to ensure that we are responding to. We have talked about genuine and good-faith expression and the practice of a faith; that is an exception, and the way you have articulated it is with the exact types of examples that people who were concerned about the applications of the law raised. It is why the exception is phrased in the way it is.

Ann-Marie HERMANS: So then in the case of Israel Folau and what he quoted, which was directly from a revelation that was given 2000 years ago to one of the disciples of Jesus in a dream and then was interpreted and put into words in the Book of Revelation and was considered to be inciteful and hateful, does that mean that somebody like him would then be exempt from any retribution for what he wrote and was published online?

Jaclyn SYMES: Mrs Hermans, I am not going to apply the law to specific situations. What I will refer back to are the exemptions and the fact that when there is a genuine good-faith expression and practice of faith, it is likely to be picked up by the exemption. In relation to the case that you have mentioned, I do not think it was a vilification case in any event; I think it was a contract case. Again, I do not want to make comment on a specific example and apply the law, but what you have articulated I do not think was a vilification case.

Ann-Marie HERMANS: Just to clarify, though, the ABC quoted this as being a situation where Israel Folau was considered to have put forward words that were considered to be hateful, and then as a result of that being hateful and therefore having an implication on people with a particular attribute, it was concluded to be inappropriate. So the question still remains.

Jaclyn SYMES: I do not think that is what happened.

Ann-Marie HERMANS: I just looked it up on the ABC; I have got the article on my phone.

Jaclyn SYMES: So anti-vilification laws were in breach?

Ann-Marie HERMANS: No. Obviously your laws have not yet been passed, but the point is that had they been passed at that point in time and this had taken place, it would have been a very interesting case. It looks to me like Israel Folau would have had a case to fight and to say that he was actually being vilified. Would that be the case?

Jaclyn SYMES: You are entitled to your opinion on how you think the laws would apply, Mrs Hermans. It is not my intention to apply laws to specific situations.

Bev McARTHUR: Minister, I just wonder if you would confirm the definition of ‘proselytise’. I am looking it up in the Oxford dictionary, and it says as a verb it means ‘to convert or attempt to convert (someone) from one religion, belief or opinion to another, and to advocate or promote a belief or course of action’. Do you confirm that that is your understanding of the definition?

Jaclyn SYMES: Mrs McArthur, when it comes to definitions, particularly in this space, we have provided some guidance for the courts to apply the laws and interpret the laws. We have added preaching and proselytising to the conduct that would be considered as part of the legislation, and we have also confirmed that it is not an exhaustive list that may be relevant to those that are expressing their religious beliefs and views.

Bev McARTHUR: But you need to be able to confirm to the chamber and to the people of Victoria what your understanding of the word is, surely, as you are putting it into the legislation.

Jaclyn SYMES: Mrs McArthur, ordinary meaning and dictionary meanings are all relevant for the court’s considerations. Thank you for putting it on the record.

Bev McARTHUR: In that case proselytising can refer to matters other than religion, because it refers to a belief or opinion and promoting and advocating a course of action. So outside the area of religion it has a meaning as well. Do you confirm that that will be the case?

Jaclyn SYMES: First of all, Mrs McArthur, it is not my position to confirm or otherwise. When we make laws in the Parliament we provide scope for the courts to determine things such as definitions based on a lot of case law and experience, and we can draw on that. But it is not for me to give a definitive definition of a word such as ‘proselytise’. You are trying to make a link to apply proselytising to other attributes et cetera, but it still needs to be a religious purpose to fall within the exemption, because the term ‘proselytise’ is not a general term in the legislation; it is confined to considerations of religious purpose.

Aiv PUGLIELLI: I move:

1. Insert the following New Clause before clause 1 –

“1AA Statement for this Act

The Parliament recognises the right of all Victorians to be free from vilification and to participate equally in a democratic society.

The diversity of the people of Victoria enhances our community and Victorians embrace the benefits provided by this diversity and are proud that people live together harmoniously. However, vilification is still occurring in Victoria.

Vilification harms social cohesion through its inherent divisiveness and perpetuates the unequal distribution of power. Vilifying conduct is contrary to democratic values because of its effect on the people who are subjected to it. It diminishes their dignity, sense of self-worth and belonging to their community and can cause profound physical and psychological harm. It also reduces their ability to contribute to, or fully participate in, all social, political, economic and cultural aspects of society as equals, thus reducing the benefit that diversity brings to the community.

It is the intention of Parliament to enact law for the people of Victoria that respects the inherent dignity of all of us and promotes our equal participation in public life.”.

For the benefit of the chamber, if possible, I am able to speak to all the amendments I am moving tonight and get it all done in one go. Is that of use?

The PRESIDENT: Yes, please.

Aiv PUGLIELLI: With regard to the preamble statement amendment, this amendment seeks to bring the preamble statement that the bill inserts into the Equal Opportunity Act into the entire bill to ensure that overarching statements relating to the right of all Victorians to participate equally in a democratic society, the promotion of the diversity that exists within our society and the right to equality and the need to balance this with the right to freedom of expression apply to both the civil and the criminal provisions.

With respect to the purposes amendment, to help get the balance right between the right to equality and freedom of expression we are seeking to amend the purposes of the bill via this amendment to clearly state in the purposes of the bill that its intention is to promote full and equal participation in an open and inclusive democratic society without impeding robust discussion. It is vital that anti-vilification legislation is directed to addressing the systemic nature of disadvantage to protect marginalised groups.

When interpreting legislation, determining parliamentary intent and the objectives of the bill, legal stakeholders have indicated to us that judges and magistrates will give the purposes section higher weight. That is why this amendment also seeks to explicitly state in the purposes of this bill that its intention is to protect people that experience systemic injustice and structural oppression, including Aboriginal and Torres Strait Islander people.

With respect to the DPP consent amendment, we believe there is a risk that these laws could be misused and selectively enforced by police, which could disproportionately impact marginalised and overpoliced communities or result in frivolous or vexatious charges. This risk could be mitigated by retaining the requirement that a prosecution for a serious vilification offence must not be commenced without the written consent of the Director of Public Prosecutions, which is what we are seeking to achieve via these amendments. Requiring consent from the DPP is an extra level of oversight and consideration. The DPP is required to consider whether prosecuting a person is in the public interest. Given the significantly increased penalties for these offences of three to five years in prison, we believe this oversight is critical.

With respect to the power and context amendments in criminal and civil provisions, it is important that this bill is not misused against already overpoliced and marginalised groups. These amendments, coupled with our amendment to the purposes of the bill, clarify that the intention of the bill is to safeguard individuals who face widespread, entrenched patterns of unfair treatment that are built into the systems, the institutions and the laws of our society and that this should be taken into account when protecting those at risk of vilification but also to ensure that those who are marginalised, vulnerable or disadvantaged are shielded from these laws being weaponised against them or applied to them in a discriminatory or an unjust way.

Because this legislation should not be about criminalising someone’s right to practise their religion or to participate in our community, in protest or in legitimate public discourse, it should not impinge upon the democratic rights that are key to the freedoms we enjoy in this state, including the right to public assembly and political communication. When considering whether to commence prosecutions for vilification it is critical that decision-makers take into account the circumstances of the conduct, including the social, historical and cultural context and including any power imbalances between the parties involved. We are seeking to achieve this via one of these amendments. It is also critical that the Victorian Equal Opportunity and Human Rights Commission and the Victorian Civil and Administrative Tribunal take into account these same considerations with respect to the civil provisions. We are seeking to achieve this also via these amendments.

With respect to the amendments clarifying the religious exceptions in the bill, we are seeking to clarify the scope of the religious exception to ensure that there is a close and direct nexus between preaching and proselytising and a person’s religious beliefs. Importantly, the terms ‘worship’, ‘observance’, ‘practice’ and ‘teaching’ have largely been interpreted to protect activities performed by people of faith within their faith communities rather than harmful public conduct targeting non-believers, so that genuine conduct that is engaged in in the course of worship, observance, practice, teaching, preaching or proselytising in respect of a particular religion is in conformity to the doctrines, tenets or beliefs of that religion.

While our preferred wording would align with the exact wording in article 18(1) of the International Covenant on Civil and Political Rights, we are satisfied that this amendment sufficiently clarifies the interpretation of this exception to apply equally to have that scope narrowed in that way. This wording echoes the Commonwealth Sex Discrimination Act 1984, in which the religious purposes exception must apply to an act or practice that conforms to the doctrines, tenets or beliefs of that religion. In our own Equal Opportunity Act we have already a religious bodies exception in subsection 82(2)(a) that requires that anything done is reasonable and proportionate in the circumstances and that it conforms with the doctrines, beliefs or principles of the religious body’s religion. We are therefore seeking to clarify the civil religious purpose exception within this bill to ensure its reading remains appropriately narrow via this amendment, so that only genuine conduct that is engaged in in the course of worship, observance, practice, teaching, preaching or proselytising in respect of a particular religion is in conformity to the doctrines, tenets or beliefs of that religion. This is vital to ensure that LGBTQI+ people and other groups who are often marginalised are protected from hate speech that could hide under the guise of religion – for example, a religious person distributing hateful, homophobic or antisemitic material that is based solely on their personal views and not those of their religion.

Evan MULHOLLAND: Acting President Galea, it is good to see you in the chair. Not to reflect on the Chair, but I thought a tie might be appropriate. Minister, you mentioned that the government agreed with part 6A in the prohibition of vilification. You also clarified that it is to also express legal intent. Would inserting the Greens statement at the front of the bill, which is somewhat contradictory to the government’s statement in part 102A, give it more legal weight than the existing statement in 102A?

Jaclyn SYMES: In relation to this amendment, Mr Mulholland, the government will be supporting the changes. I will be up-front: we do not think it is necessary, but for clarification, we are happy to support the amendment because it just sets out the intentions of the bill, so it is inoffensive to us.

Evan MULHOLLAND: Just clarifying that, although you have got this ridiculous situation where the government does not think it is necessary but is supporting it, the intent of putting it in the front of the bill would give it greater legal weight than the existing statement in 102A, which has explicit points about freedom of expression as ‘an essential component of our society’.

Jaclyn SYMES: The inclusion of the words from the Greens does not change the legal status of the statement.

David LIMBRICK: What legal effect will this statement actually have? Is the minister saying that this statement, after it is inserted, will have no differing legal effect?

Jaclyn SYMES: Let me just clarify. At the outset, the positioning of the provisions does not relate to how much legal weight would be afforded. As I said, we think that this is largely about clarification, and if that is a way that more people are given comfort about the intention of the laws, then there is no harm in that.

David DAVIS: I am just struggling with the concept that there are two of these sections in the bill, one further up in the bill and another one later, and they are not the same words. I just wonder if the minister can explain how inconsistencies in the words will be resolved. We all understand that lawyers know and are able to look at small words and small differences and tense differences and modest tonal changes. These seem to me to be quite different in at least some paragraphs, and in that sense I would just be very interested to hear how the minister intends that that be resolved.

Jaclyn SYMES: With respect to the committee, the position of the government is to explain that we are supporting the amendments. The amendments have been put by the Greens. If you want to ask about the amendments –

Members interjecting.

Jaclyn SYMES: I did not have to tell you up-front I was supporting them. I am trying to be transparent. Asking the minister about amendments that are not theirs is not usual practice. I have told you that we are not opposing the amendments, and I have told you why. If you have questions about the Greens amendments, you should direct them to the Greens.

David DAVIS: With respect, the minister has indicated the government will accept this amendment, so the government in doing so must have considered the consequences of accepting the amendment and what it will do –

Jaclyn SYMES: And I explained that.

David DAVIS: I heard what you said, but it actually did not explain it adequately. If you are accepting these amendments, how are you to explain inconsistencies in interpretation?

Jaclyn SYMES: I have answered.

Members interjecting.

The ACTING PRESIDENT (Michael Galea): The minister has answered the question.

Jaclyn SYMES: I asked you to direct questions about an amendment to the mover of the amendment.

David DAVIS: With respect, I do not think that is good enough from the minister. The truth is the government have indicated they will accept the amendment, so they must have consequently thought through the impact of those amendments on their bill.

Jaclyn SYMES: Which I went through.

David DAVIS: Yes, I heard what you said, but I do not accept that there is no inconsistency. If there is an inconsistency, this is going to leave a legal avenue through which lawyers will drive large trucks. If the minister is not prepared to answer it, we will just record for the committee that the minister is not prepared to answer it despite accepting the amendment. Maybe there is a difference there, but it does seem extraordinary.

Ann-Marie HERMANS: Again, based on the fact that the government have explained that they are happy for the changes to take place with AP51C, I am taking a look at, for instance, page 7, 195Q, prosecution of offences. With this change it would mean that the government is allowing that a prosecution for an offence against sections 195N(1) or 195O(1) may only be commenced by the Director of Public Prosecutions, because it will be omitting ‘or a police officer’. Can the government please explain why it would be happy to have the omission of ‘or a police officer’ in the prosecution of an offence?

Jaclyn SYMES: We have gone through this extensively. I was really, really –

Ann-Marie HERMANS: This is to do with the Greens making the changes, and this is the change you are allowing to be withdrawn.

Jaclyn SYMES: Yes, the DPP and police. Ask Mr Mulholland. We went in great detail through the fact that I am hesitant about the Greens amendment, but when I formulated the bill there were very mixed views on whether you should have no DPP consent or you should. I fell on the side in the development of the bill that you do not require it, except for those under 18. In the good-faith consultations that have happened since the introduction of the bill, the now Attorney-General has been persuaded by the Greens argument – which is not just their argument; many people have raised this argument – that vulnerable marginalised groups can be better protected if DPP consent applies. I was very clear with my answer to Mr Mulholland: this for me is an area where I am not sure what the right way is. I think there are merits on both sides, and I am happy to facilitate the Attorney’s agreement to the Greens proposal in an amendment in this regard. I do not think I can be any clearer than that.

Evan MULHOLLAND: I have a question for the Greens, Mr Puglielli, and it goes to your amendment 2 to clause 1, inserting a specific provision to protect Indigenous and Torres Strait Islander peoples – those experiencing systemic injustice and structural oppression. The legal interpretation of that is that some protected attributes are more important than others and are given more weight than others. Does this not undo the statement that you have inserted into the middle – the one that the government is hesitant to support but is supporting – that we should respect equal participation in public life?

Aiv PUGLIELLI: Mr Mulholland, are you putting a legal interpretation to the chamber?

Evan MULHOLLAND: I am asking about your amendment, Mr Puglielli, specifically ‘to protect Aboriginal and Torres Strait Islander people and others experiencing systemic injustice and structural oppression’. I will start by asking: what are the reasons behind your decision to insert this provision?

Aiv PUGLIELLI: As I would have thought you would understand, Aboriginal and Torres Strait Islander people – and many others who are in marginalised groups in our community – face systemic injustice and structural oppression, and therefore it should be considered in the bill. That is why it has been included in the amendment.

David DAVIS: I am just going to ask the minister about the government’s decision to accept these amendments too. What basis is the government accepting those amendments on? Has the government consulted on these amendments, particularly new paragraph (ab), as outlined by Mr Mulholland? Has the government undertaken any broad discussion?

Jaclyn SYMES: I have answered the question about consultation in relation to amendments extensively with Mr Mulholland.

Evan MULHOLLAND: Just in regard, Mr Puglielli, to your amendment, particularly on ‘others’, I am asking for your interpretation of ‘experiencing systemic injustice and structural oppression’ in terms of ‘others’. Could you provide for the chamber your interpretation or thoughts on other groups that have experienced systemic injustice or structural oppression?

Aiv PUGLIELLI: As you would be aware, the attributes are expanded under this bill – speaking to the fact that there are marginalised groups who up until now have not been covered by the provisions of the legislation – therefore indicating, as I would have thought would be obvious, there are groups within our community who face systemic injustice and structural oppression. Again, that is why we have sought to move this amendment acknowledging that Aboriginal and Torres Strait Islander people and others experience systemic injustice and structural oppression in our community.

Evan MULHOLLAND: I get that, Mr Puglielli, but that is not the question I asked. You brought this amendment to the chamber, so I ask who the others are that are experiencing systemic injustice and structural oppression.

Aiv PUGLIELLI: Those with the protected attributes under this bill.

Evan MULHOLLAND: So are you saying all those with protected attributes under this bill, including religion and race, are the others you define as experiencing systemic injustice and structural oppression?

Aiv PUGLIELLI: One moment. Mr Mulholland, you are seeking to draw me into interpreting, as if I were the judiciary, the word ‘others’. I will not seek to speak for them, but what I can say is, again, as I have indicated in my prior responses, this bill is expanding attributes to protect a range of marginalised groups in our community. This amendment seeks to explicitly state that its intention is to protect people who are experiencing systemic injustice and structural oppression, including Aboriginal and Torres Strait Islander people.

Bev McARTHUR: Mr Puglielli, will you confirm, then, that a vulnerable, marginalised group that is experiencing systemic injustice at the moment are women, adult human females, who are absolutely experiencing systemic injustice absolutely at the hands of those who say that anybody can be a woman?

Aiv PUGLIELLI: Sex is a characteristic that is protected under this bill.

Bev McARTHUR: So, Mr Puglielli, you confirm, then, that women are being marginalised and experiencing systemic injustice and this amendment is designed to protect adult human females – that is, biological women – against systemic injustice. Is that the purpose of this amendment for proposed new clause 1(ac)?

Aiv PUGLIELLI: Sex is a protected attribute under this bill.

David LIMBRICK: On proposed new clause 1(ab), where it talks about ‘to protect Aboriginal and Torres Strait Islander people’, did the Greens consult the First Peoples’ Assembly on this amendment?

Aiv PUGLIELLI: One moment. Our advice with respect to this and all our amendments has come from a range of stakeholders. We have engaged quite widely. With respect to First Nations people in our community, I would point you, for example, to the Victorian Aboriginal Legal Service, one of the stakeholders we have engaged with here. This has been a thorough process of engagement right across the community. There are a range of stakeholders who have engaged throughout the process right from the beginning, prior to this bill being in existence. There has been a lengthy public discourse over the reforms we are talking about here tonight. Yes, we have consulted with key groups relating to the welfare of First Nations people.

David LIMBRICK: My question was specific, though, around the First Peoples’ Assembly. Have they been consulted on this?

Aiv PUGLIELLI: Specifically the First Peoples’ Assembly? No.

Bev McARTHUR: Mr Puglielli, did you consult the Victorian Women’s Guild?

Aiv PUGLIELLI: I am not aware of us having received any specific feedback from this group in relation to this bill.

Bev McARTHUR: Mr Puglielli, did you seek it?

Aiv PUGLIELLI: From this specific group? Not that I am aware of.

Bev McARTHUR: Why not? This is a very important group in the area of women’s rights. Why wouldn’t you have first consulted with this significant group in Victoria?

Aiv PUGLIELLI: We have, to my understanding, read every submission that was made to the inquiry that predated this bill. Again, this is specifically a group that we have not engaged with and has not written to us.

Evan MULHOLLAND: I am glad, Mr Puglielli, that in your previous answer to me you acknowledged that religions – so by extension Christians – are suffering structural oppression. Would historical considerations, systemic injustice or structural oppression also include the experiences of many Catholics and Jews of a more boomer generation and older, who grew up with job ads with letters saying ‘CNNA’ or ‘CJNNA’ – Catholics and Jews need not apply.

Aiv PUGLIELLI: Considering the opening of the question entirely verballed me, I am not engaging in this line of questioning.

Bev McARTHUR: Mr Puglielli, given that you said sex is a protected attribute, did you consult with Women’s Forum Australia?

Aiv PUGLIELLI: Mrs McArthur, I understand the attribute you are referring to under this bill was determined by government, so therefore your question has no relevance to the Greens amendments this evening.

Bev McARTHUR: Mr Puglielli, you have put forward an amendment which says:

to promote full and equal participation in an open and inclusive democratic society, without impeding robust discussion that does not vilify or marginalise others based on a protected attribute …

Surely if you are intending to have this amendment passed, we need to know who you consulted with in the design of this amendment and if you are ensuring that is groups who are important in this area. You have admitted that sex is part of a protected attribute. We need to know that you consulted with those groups that particularly represent one area of sex, which is women – biological adult human females.

Aiv PUGLIELLI: Perhaps for the benefit of the house, because I think we are going in circles a little bit here, I have a non-exhaustive list of stakeholders we have engaged. I might read through those if that is of benefit: Action on Disability within Ethnic Communities, Australian Discrimination Law Experts Group, Australian Democracy Network, Australia Palestine Advocacy Network, Commission for Children and Young People, Centre for Multicultural Youth, Disability Advocacy Network Australia, Disability Discrimination Legal Service, Deaf Victoria, Democracy in Colour, Disability Justice Australia, Disability Resources Centre advocacy, Ethnic Communities’ Council of Victoria, Equal Voices, Equality Australia, Federation of Community Legal Centres, First Peoples Disability Network, Fitzroy Legal Service, Human Rights Law Centre, Inclusive Rainbow Voices, Intersex Human Rights Australia, Islamic Council of Victoria, Jewish Council of Australia, Justice and Equity Centre, Law Institute of Victoria, Liberty Victoria, Melbourne Activist Legal Support, Minus18, Office of the Public Advocate, Queers for Palestine Naarm, Queer Greens, Rainbow Families, Rights Information and Advocacy Centre, Star Victoria, Switchboard, Thorne Harbour Health, Trans Justice Project, Trans Queer Solidarity Naarm, Transcend Australia, Unionists for Palestine, Uniting (Victoria and Tasmania), Victorian Advocacy League for Individuals with Disability, Victorian Aboriginal Legal Service, Victorian Council of Social Service, Victoria Legal Aid, Victorian Pride Lobby, Victorian Trades Hall, Victorian Aboriginal Legal Service, Villamanta Disability Rights Legal Service and Women with Disabilities Victoria.

Bev McARTHUR: Mr Puglielli, that is most illuminating. So you have consulted all those other groups, but there is not any women’s group identified in that list of groups you have consulted. Let us get it on the record: you have consulted no women’s groups.

Aiv PUGLIELLI: In addition to, as I have indicated, reading every submission that was made through the inquiry process that predated this bill, and notwithstanding that the last group I just read was Women with Disabilities Victoria, we receive plenty of feedback from women in the community.

Evan MULHOLLAND: My question is to the minister, and it really relates to the Greens amendment that the government has accepted, number 2.

Jaclyn SYMES: Can you take me through it? Which one?

Evan MULHOLLAND: Yes, I am happy to.

Clause 1, after line 5 insert –

“(ab) to protect Aboriginal and Torres Strait Islander people and others experiencing systemic injustice and structural oppression; and

(ac) to promote full and equal participation in an open and inclusive democratic society, without impeding robust discussion that does not vilify or marginalise others based on a protected attribute …

Are the Greens and the government undermining the independence of the DPP by telling them how to do their job?

Jaclyn SYMES: I want to just say no – that is the answer. I assume we are talking about the same amendment. This is talking about purposes of the bill, right? This is not about the powers of the DPP, it is not about dictating; it is the main purpose of the bill. This is what they are proposing to do:

to protect Aboriginal and Torres Strait Islander people and others experiencing systemic injustice and structural oppression …

I do not have a problem with that. Do you have a problem with that? It does not make sense to me that you have a problem with that. The amendment states:

To promote –

my God, promote, how dare you! –

full and equal participation in an open and inclusive democratic society, without impeding robust discussion that does not vilify or marginalise others based on a protected attribute …

I refer to my previous comments.

Bev McArthur: They are being marginalised by this.

Jaclyn SYMES: Women have been marginalised for centuries, and I do not think they are proposing to exclude women. It is a promotion. It is the purposes of the bill clause. The way you are characterising it, Mr Mulholland, is catastrophising something for the sake of catastrophising it. The government’s position is that we thought we had probably covered the field. This is fine. If we want to make sure that people from Aboriginal and Torres Strait Islander backgrounds know that this is about protecting them if they are vilified for being Aboriginal, I am pretty okay with that. If we want to promote full and equal participation, I am pretty okay with that. I do not actually understand the opposition to some words that are pretty inoffensive; in fact they are really inclusive. The government did not propose them, but we are not opposing them.

Evan MULHOLLAND: I would have a different view, that it does undermine the independence of the DPP. This is coming from a government that wrote to the Chief Justice of Victoria instructing them how to apply the bail laws that were passed by this Parliament – again, something, to your credit, Minister, you would have never done. But this bill seeks to do that, and it gives particular weight and says basically that some attributes are more important than others. I want to ask whether it is the government’s view that Aboriginal and Torres Strait Islander people are already covered under race.

Jaclyn SYMES: Yes, for that particular attribute.

Evan MULHOLLAND: My question is to Mr Puglielli. What is your reason for the amendment to not remove the consent requirement from the DPP for Victoria Police?

Aiv PUGLIELLI: As I have indicated, we believe there is a risk these laws could be misused and selectively enforced by police, which could disproportionately impact marginalised and overpoliced communities. This risk could be mitigated by retaining the requirement that a prosecution for a serious vilification offence must not be commenced without the written consent of the Director of Public Prosecutions, which is what we are seeking to achieve by this amendment.

Evan MULHOLLAND: Could you just talk me through – because it is quite important, particularly with reference to the police – what issues you have with the police involvement in the bill as was drafted?

Aiv PUGLIELLI: This is about providing oversight so that marginalised and overpoliced communities do not become further incarcerated.

Evan MULHOLLAND: Could you repeat that?

Aiv PUGLIELLI: This is about ensuring that marginalised and overpoliced communities do not become further incarcerated as a result of these laws.

Evan MULHOLLAND: What communities are marginalised and overpoliced by the police?

Aiv PUGLIELLI: I feel like this has been asked and answered. It might have been first question you put to me.

Evan MULHOLLAND: You made a statement and I had a follow-up. What communities have been marginalised or overpoliced by Victoria Police?

Aiv PUGLIELLI: It appears the idea of racial profiling that occurs in policing in this state has not reached the ears of the opposition. But it occurs, and you should ask your constituents about it.

Evan MULHOLLAND: I am asking you about your intent. You have drafted this amendment, or one of your colleagues has, or one of the many different stakeholders you seemed to reel off has obviously drafted it for you, so I understand you might not be fully across it. But I am asking about the intent of removing Victoria Police from the protests. Who specifically are the marginalised and overpoliced groups you are referring to? If you had to pick out of the protected attributes, who would you be choosing?

Aiv PUGLIELLI: Mr Mulholland, your condescension aside, I have spoken to the intent behind this amended, and I will not be engaging further.

Evan MULHOLLAND: Obviously he cannot answer it. I will ask the minister, because I do think some of the attitude we just heard and some of the flippant attitude to law enforcement is probably the reason why the Greens political party are losing seats like Prahran and some of their support has dropped to record lows.

Minister, there is obviously a very important role for Victoria Police as part of this bill. As we have discussed before, the government and particularly the Attorney-General’s office came back to us stating the reasons for strengthening this legislation so Victoria Police could enact prosecutions so we could get outcomes. In that respect, why are you now supporting the Greens amendments to cast aside Victoria Police?

Jaclyn SYMES: Mr Mulholland, I answered this question previously with you and I got asked the same question by Mrs Hermans. My response to her was that I had answered your previous questions. I explained where we got to with police and DPP consent and I explained where we are at now. I have got nothing further to add. I can just repeat that this is a lineball one. As I said, the government will not be opposing the Greens amendments. As has been indicated, there are a variety of views in relation to this and I think it would be prudent for us to keep an eye on things.

Evan MULHOLLAND: Just back on the DPP, I will probably ask this of both of you, actually. If someone is threatening harm to another person’s body or property based on their protected attribute, why should the historical circumstances of the person making the threat be relevant?

Aiv PUGLIELLI: Just one moment.

There are a range of considerations that are taken into account in each particular case. This is to ensure that these considerations are taken into account with respect to both the person on the receiving end and the alleged perpetrator.

Evan MULHOLLAND: Isn’t this a get-out-of-jail-free card for people wanting to threaten others based on what may have happened generations ago on another continent?

Aiv PUGLIELLI: No.

David LIMBRICK: I have a question for the minister. Everyone is talking about this word as if everyone understands it, but not all of us were involved in leftist politics. ‘Marginalised’ – this is an introduced object of the bill that we want to not impede robust discussion that does not vilify or marginalise others based on a protected attribute. What is actually meant by ‘marginalised’? We are adding in a new purpose, effectively, here – or a new verb. What is actually meant by that? What are we actually trying to stop doing?

Jaclyn SYMES: This is not my amendment. This is the Greens amendment. Mr Limbrick needs to direct his questions about a specific amendment to the mover of the amendment.

David LIMBRICK: Fine. I will direct that question to Mr Puglielli then, please.

Aiv PUGLIELLI: I am sorry, could you repeat the question?

David LIMBRICK: Yes, sure. You are introducing a new purpose here to not marginalise people. What do you actually mean by the verb ‘marginalise’? What are you actually trying to prevent or stop happening?

Aiv PUGLIELLI: The ordinary meaning – this is addressing groups in our community who systemically experience vilification. We are expanding these attributes to protect people on the basis of who they are.

David LIMBRICK: That does not really answer the question, though. What does the word ‘marginalise’ actually mean here? Because you have introduced it twice in here, and it is not clear to me what the actual meaning of it is in this context.

Aiv PUGLIELLI: The ordinary meaning, as I have indicated; you can consult a dictionary.

Rachel PAYNE: Mr Puglielli, I would like to ask a question just in relation to amendment 2(ac) on clause 1: what is meant by the term ‘robust discussion’? That term is often used by activists to claim that they are not engaging in vilification because they are simply using robust discussion. So I just want a bit of clarity around that, please.

Aiv PUGLIELLI: I welcome the question. The words immediately draw into account the words following, which is that it is:

… without impeding robust discussion that does not vilify or marginalise others based on a protected attribute …

It is really important to state that: we are not talking about discussion that vilifies or marginalises people. So potentially the sort of inferences made, where others have tried to weaponise the term – that is not what we are speaking about. The purpose of this amendment is to make clear that robust debate in the public interest that does not engage in harmful dehumanisation and vilification of other human beings based on their inherent characteristics is not intended to be captured by these new laws. For example, victim-survivors of institutional child sexual abuse have protested about specific religious institutions or representatives, such as Catholic priests, being complicit in child abuse or said, ‘Down with the Catholic Church’ – those are quotes. These types of statements are drawing public attention to the experiences of victim-survivors and their families and the role of religious institutions in failing to protect them from child sexual abuse and would constitute robust discussion that should not fall foul of anti-vilification laws. This particular amendment does not open the pathway to a discussion or harmful conduct about individuals, identities or attributes.

Rachel PAYNE: In relation to amendments 3 through to 10, I am referring back to the inquiry into anti-vilification laws, which recommended removing the requirement for DPP consent to prosecute vilification offences. Why are the Greens proposing that this will be retained, and won’t this make it harder to prosecute anti-LGBTIQA+ vilification?

Aiv PUGLIELLI: The requirement to obtain consent from the DPP before prosecuting serious vilification offences will ensure the DPP can play a critical role to ensure the new laws operate as intended, recognising the specialist legal expertise of the DPP to assess whether a prosecution is in the public interest, ensuring proportionality and fairness and appropriately considering whether and how human rights have been taken into account.

Rachel PAYNE: Amendments 11 and 12 – what value do these add in strengthening the legislation? Again, I heard your response previously, but this is in relation to those civil offences.

Aiv PUGLIELLI: It is important in these contexts that these matters be considered. We are also aware that the VEOHRC would likely already take these things into consideration, but we believe it is important that VCAT does too, and therefore we have made it explicit.

Rachel PAYNE: Just on that, wouldn’t it make it more difficult to pursue anti-vilification cases through VEOHRC if that rigorous testing was applied?

Aiv PUGLIELLI: That is not my interpretation.

Richard WELCH: I would like to ask Mr Puglielli regarding the statement for the act, amendment 1. We have heard that much of this bill will be interpreted by the courts, and therefore it is important we do not deliver the courts ambiguity in the bill, but I think this opening statement does exactly that. I am particularly concerned about where it says vilifying conduct ‘diminishes their dignity, sense of self-worth and belonging to their community’. Is it the intention that – or will it influence the interpretation of the bill – if someone simply has a diminished sense of self-worth, ipso facto that is vilification?

Aiv PUGLIELLI: I will have to disagree on the matter of ambiguity. As I have indicated, this amendment seeks to ensure that overarching statements relating to the right of all Victorians to participate equally in a democratic society, the promotion of diversity that exists in our community and the right to equality and the need to balance that with the right to freedom of expression are applied to both civil and criminal provisions.

Richard WELCH: But just to be clear though then, it is not the intention of this insertion to say any one of these events – if someone has a loss of sense of self-worth or feels that their dignity has been diminished or their sense of belonging to a community – individually themselves should be interpreted as vilification?

Aiv PUGLIELLI: This is a preamble statement, and I note again that this is already present in the Equal Opportunity Act.

Richard WELCH: I would love to also just revisit amendment 12, ‘Clause 9, page 15, after line 4 insert’, and that is the section where it describes taking into account the social, cultural, historical and other circumstances of the other person or group of persons. I think you mentioned earlier that that applies to both the alleged perpetrator and the alleged victim. The principle of equality before the law is a pretty fundamental one. If we are going to put in law within a single incident potentially the historical or other – and ‘other’ is undefined – circumstances for the perpetrator and simultaneously historical and other circumstances for the alleged victim, is there not a risk that you will stray so far from the concept of equality before the law because of extraneous qualifications on the action or on the perception of the action?

Aiv PUGLIELLI: I am not quite following. Could you explain further?

Richard WELCH: Equality before the law is a very fundamental principle: we are all treated equally in front of the law. This bill says in that interpretation we are no longer equal before the law because our historical circumstances, social factors or, in black and white, other circumstances must be taken into account. On one hand the perpetrator may find justification for their criminal or violent acts because they came from a certain social group or they had a certain social background. On the other hand, the victim should not be considered a victim; they are not entitled to be a victim because of their social background or historical circumstances. This to me is a very dangerous amendment because it completely diminishes equality before the law and with open-ended concepts which are ill defined. That is my concern. Where is equality before the law under this amendment?

Aiv PUGLIELLI: A lot of that felt like more of a statement, but I note it. Again, these are –

Richard WELCH: You asked for an explanation; I gave it to you.

Aiv PUGLIELLI: These are considerations, as I have indicated already, that we feel should be applied to this provision. As I have indicated, we are aware that the VEOHRC luckily already takes these things into consideration.

Richard WELCH: This might sound a little bit like a statement too, I guess. That is exactly the problem I am pointing out. You are leaving it completely open-ended to the court that they must take into consideration matters, other than facts, that relate to circumstances or subjective judgement about the impact of historical or heritage matters.

Aiv PUGLIELLI: There are a range of considerations that will be taken into account. We are asking that these considerations be also considered.

David LIMBRICK: I would just like to ask Mr Puglielli about amendment 13:

… after “proselytising” ‘insert “that is in conformity with the doctrines, beliefs or principles of that religion”.

This adds a condition on what is valid and is not valid proselytising. Who is actually going to decide what is in conformity with the doctrines, beliefs or principles of that religion?

Aiv PUGLIELLI: I believe you put this same question, or one very, very similar, to the minister, and I concur with her response.

David LIMBRICK: I think the minister told me to ask the mover of the amendment.

Aiv PUGLIELLI: I am quite confident that the minister did fully answer this question. Again, I concur with her response.

Evan MULHOLLAND: I know it is past 1 am, but I am finding myself in a strange period of time when I am in agreeance with the Legalise Cannabis Party on the intent of the bill, particularly in regard to amendment 10(2):

In determining whether an offence against section 195N(1) or 195O(1)is to be prosecuted, the Director of Public Prosecutions must take into account all the circumstances (including the social, cultural and historical circumstances) surrounding the conduct that is alleged to constitute the offence.”.

Minister, I will ask you, because earlier you stated in regard to another amendment that it really did not matter because it was not a direct, explicit instruction to the DPP that would undermine its independence. This is a direct, explicit instruction to the Director of Public Prosecutions that they must take into account the circumstances. Is this not undermining the independence of the DPP?

Jaclyn SYMES: No. Providing guidance about what the DPP should assess when determining the application of laws is not an inappropriate direction to the DPP. In relation to the terminology that the Greens have used to pick up in an amendment, I would draw your attention to page 18 of the explanatory memorandum, because it is language that the government has already proposed as explaining what could be included in other circumstances:

The phrase “in all the circumstances” requires the context in which the conduct occurred to also be considered, including, for example, the social, cultural, historical and other circumstances of the person or the people in the group.

So I would contend that we have covered this quite substantively in our explanatory memorandum, and it is for those reasons that we are not opposing these amendments – because we do not believe that in any way they alter the intent or purpose behind the provisions. We do not necessarily think that they are that necessary, but we do not think that they make any substantive change, and therefore there is no need to oppose it. We are very keen to ensure that this bill becomes law for obvious reasons – we want to protect Victorians – and adding words in this respect is not a problem.

Evan MULHOLLAND: As we have gone over quite a bit, Minister, on the removal of Victoria Police’s ability to initiate prosecutions, again, you have got this bizarre Greens opinion about Victoria Police, really denigrating the good work of Victoria Police as well. But I agree with some colleagues – some I thought I would never agree with – that it does reduce the ability and the intent of this bill to stop serious incitement, threats and all sorts of other things in this bill. Can the government clarify their support of this change?

Jaclyn SYMES: I just want to clarify a few things. First of all, VicPol can still instigate proceedings; they just need DPP consent. I am a little bit troubled by the way you phrased things – that by virtue of the DPP looking at something it might prevent cases from coming forward. The reason I have hesitation about it is probably around the extra hurdle, the extra administration and the impost on the DPP when it is not necessarily required. I do not think that it will actually have the impact of holding back cases. The DPP do not squash cases because they feel like it; they have a job to do in relation to ensuring that the case has genuine prospects of success and is in the public interest. We would hope that the DPP and VicPol would confer and agree in the vast majority of instances.

We have a protection mechanism for younger people for obvious reasons. It is custom and practice; it is usual. I do not think that putting in a DPP consent will have an adverse impact on cases that are appropriately brought before the courts. I am just worried about the impost on the DPP in having to do a job that perhaps VicPol are okay to do. I hope that clarifies the reason that I personally, as the former Attorney-General – and I probably should caveat; this is delving into opinions, but it is because I want to explain. This is not because we think the DPP will do a bad job – of course not. We did not think it was necessary, but the Greens have argued the status quo. There are reasons for that in terms of protections for marginalised groups, and there is merit in that argument. As I said, this is a 50–50 lineball for me.

Evan MULHOLLAND: Thank you, Minister, and thank you for your very good answer, a lot of which, again, very strangely at this time of morning I agree with. I want to particularly ask the Greens about their amendment 13:

Clause 9, page 16, line 4, after “proselytising” insert “that is in conformity with the doctrines, beliefs or principles of that religion”.

I may have misheard, but I believe I heard you say that this is a narrowing of this section. Would you confirm that?

Aiv PUGLIELLI: This amendment seeks to clarify the scope of the religious exception to ensure it retains its narrow definition.

Evan MULHOLLAND: Would the effect of your amendment mean that VEOHRC or the DPP will be adjudicating over the doctrines of a particular religion?

Aiv PUGLIELLI: This wording echoes the Commonwealth Sex Discrimination Act, in which the religious purposes exception must apply to ‘an act or practice that conforms to the doctrines, tenets or beliefs of that religion’. In our own Equal Opportunity Act 2010, as I have stated, we already have a religious bodies exception in subsection 82(2)(a), which requires anything to be done to be ‘reasonable and proportionate in the circumstances’ and that it ‘conforms with the doctrines, beliefs or principles of the religious body’s religion’.

Evan MULHOLLAND: This one is to the minister and is further to this point: how does the government intend that a court or tribunal should understand what is or is not a doctrine of religion if that religious group leaves certain views on certain issues up to its individual members?

Jaclyn SYMES: Mr Mulholland, obviously, just coming back to what our bill says, the intention was to provide an exception for any genuine religious purpose, ‘including but not limited to worship, observance, practice, teaching, preaching and proselytising’. It is a non-exhaustive definition, and I am reading directly from the explanatory memorandum. It was designed to modernise the definition of religious purpose, which was pulled from the Racial and Religious Tolerance Act, by aligning it with the right to freedom of religion and belief under the Charter of Human Rights and Responsibilities with additional modification. The Greens amendment is intended to add terms such as falling within doctrines or principles of religion. We do not have a problem with this clarifying language, because we believe that it is just part of religious practice, and therefore we have already indicated that we did not think that our definition was an exhaustive list, and we do not think that adding these words has a substantive change other than further clarification of the intent of the clause. It is fine.

Evan MULHOLLAND: Okay. Well, given that, and Mr Puglielli will correct me if I am wrong, Minister, but he seemed to suggest that the clarification was proselytising, preaching, teaching, and the scope would be narrowed to within those communities, as in any engagement externally, as in proselytising, sharing the good news of the Bible, sharing that to other communities, as in one person with a religious belief to someone who might not, might not be captured. I am asking you, Minister: is it your interpretation that ‘proselytising’, even with this definition, could still mean an individual proselytising to someone outside of their particular religion?

Jaclyn SYMES: Again, what we are missing in the way that you characterise your questions is the starting point. The word ‘genuine’ is being added in relation to ensuring that it is for genuine purpose, reasonable and in good faith. That is the first test. What you are talking about is the carriage of the information. It does not really matter how you articulate it if it is not in contravention of the law in the first instance in relation to it being a genuine exception to the fact that you have professed a statement or otherwise that falls within the ‘genuine religious purpose’ exemption, which is about ensuring people feel confident to celebrate their faith and talk about their faith, even in the knowledge that some of their beliefs would be offensive to others. This is what it is designed to do. It is designed to give confidence to religious groups that there is an exemption about the fact that sometimes there are things that you may say because they are in line with your faith that are offensive. That is the whole purpose of this point.

Richard WELCH: Minister, on that explicit answer, on that specific answer, the complication arises in that we are now intending to insert the word ‘marginalised’ into it. So it is no longer just the vilification bill, it is the vilification and marginalising bill.

Jaclyn SYMES: In which clause? You have jumped off religious exemption now.

Richard WELCH: We are on to the amendment.

Jaclyn SYMES: Which amendment, sorry? We were talking about religious exemption. You are talking now about the purposes clause?

Richard WELCH: I am sorry if I have confused it. I thought we were still on the amendment.

Jaclyn SYMES: There are several amendments.

Richard WELCH: We are talking on the Greens amendment.

The DEPUTY PRESIDENT: At the moment we are talking to all the Greens amendments and asking questions on all the Greens amendments, I believe, so as long as it is one of the Greens amendments –

Richard WELCH: Yes, it is Greens amendment 2:

Clause 1, after line 5 insert –

…

(ac) … without impeding robust discussion that does not vilify or marginalise …

By putting the word ‘marginalise’ in there, that is a word that is not buttressed anywhere else in the definitions here. ‘Marginalise’ can mean a wide range of things. It can mean simply not including someone in a conversation, not inviting them to an event or maybe having a conversation in front of somebody and the nature of the conversation is one that they cannot participate in. So that adds an extra complication into full freedom of speech. ‘Marginalise’ adds a lot of complication to this bill. I do not think we should skip over it, but now I do not know what the question is.

Jaclyn SYMES: It is worth making the point that – and I am actually glad that you have revisited it, because it was something that I should have said earlier – the term ‘marginalisation’ is to be given its ordinary meaning, to repeat the member’s answer, but to suggest that this is something new and novel is wrong. As you would appreciate, what we are doing through this bill is replacing the existing Racial and Religious Tolerance Act, and marginalisation is referred to in that bill in section 4. In section 4 of that act it says:

to maintain the right of all Victorians to engage in robust discussion of any matter of public interest or to engage in, on 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 …

In terms of the commentary around the fact that this is inserting some new section that is changing the way these laws apply, it exists in an act that has been on our statutes since 2001.

Ann-Marie HERMANS: I just had this thought while I was having a little break. I was thinking about the fact that some things are fluid. Let us take the situation where a person has one religion and then changes to another or is transitioning and then chooses to detransition or something of a similar nature. Whereas originally comments, postings, emails may have been palatable, suddenly with a change in that person’s perception, acceptance or beliefs that which has been posted or sent is now offensive, threatening. What happens in a situation like that?

The DEPUTY PRESIDENT: Mrs Hermans, is this to do with the Greens amendments? Because we have moved off from clause 1.

Ann-Marie HERMANS: It is, because the Greens have here:

Clause 1, after line 5 insert –

…

(ac) to promote full and equal participation in an open and inclusive democratic society, without impeding robust discussion that does not vilify or marginalise others based on a protected attribute …

What happens if that protected attribute suddenly changes? It does happen that people change religions, change gender. What happens in a situation like that where they suddenly become marginalised based on that change? How is that going to be impacted by this vilification bill that is being brought in and by the Greens amendments? They are talking about not doing that, but in actual fact, with the change, they suddenly will do that. I am interested to know how it actually caters for that level of transformation. I do not mind whether the minister wants to answer it or whether she would prefer me to directed to the Greens.

Jaclyn SYMES: I will have a stab. A good question that I received from Ms Purcell right at the start of the debate was about the fact that the bill picks up on intersexuality in that we are not particularly determined to ask people to identify which attribute they are being vilified for. It could be a range. It could change; it could be one and then another. This is about protecting individuals. I think a lot of this debate – and I am stepping a little bit into Mr Puglielli’s shoes in terms of it being his amendment – has conflated it with a purpose bill, and from the second word of the amendment it says ‘to promote’. It is about a values-based statement in a purpose of the bill. It is consistent with the language that we have already brought into the purposes. It is consistent with our explanatory memorandum. I think the line of questioning is conflating it to have some kind of impact on the law as opposed to a consideration for people to think about in the application of the law.

Ann-Marie HERMANS: One of the thoughts that just occurred to me as you were speaking here was in the situation of gender affirmation, which is the only way that counsellors can now counsel. In a situation with gender affirmation – and I think of people who have transitioned and then wish to detransition – that gender affirmation can suddenly become something that is considered to be harmful. Would there not be conflict with something like gender affirmation, where a person suddenly takes offence to the fact that they have had gender affirmation and now they find that to be something that is vilifying for them and inciteful and making them feel unsafe?

Jaclyn SYMES: I am struggling to find the connection to the Greens amendment. I am also a little bit lost in your train of thought here, Mrs Hermans. Again, this is about vilification and preventing and responding to harm of those people that have a protected attribute. I am struggling to follow along.

Evan MULHOLLAND: Just back to our conversation on when the process would kick in in terms of the clarification that is in conformity with the doctrines, beliefs or principles of that religion, who decides that? Who decides what is in conformity with the doctrines, beliefs or principles of that religion? Is it the Victorian equal opportunity and human rights commissioner? Is it the DPP? Is it Victoria Police?

Jaclyn SYMES: Courts and tribunals. I thought we had visited this already.

Evan MULHOLLAND: It was noted publicly by the government when it changed the religious purpose defence to add preaching and proselytising that this was done after stakeholder engagement with a number of groups, including the Catholic Archdiocese of Melbourne. Has the government consulted the Catholic Archdiocese of Melbourne about its support for this amendment prior to it appearing and being tabled a few hours ago?

Jaclyn SYMES: It is not my amendment.

Evan MULHOLLAND: I understand that, but the government has made the decision to support this amendment and therefore it becomes government policy and on our statute books. What faith groups has the government consulted regarding this amendment?

Jaclyn SYMES: I went through the reason that we are not opposing that amendment, particularly in relation to the fact that we have already provided a non-exhaustive list of things that could be included for the consideration of application of the exemption for religious purposes. I think that this has been well traversed. It is not for me to respond in any more detail other than our position is that we are not opposing the Greens amendment. We do not think that it substantially has an impact, and if it provides clarification, then that is not something we should be concerned about; in fact we should welcome it.

Evan MULHOLLAND: I certainly do not think we should be welcoming an amendment such as this where the Victorian equal opportunity and human rights commissioner or a court or the DPP or Victoria Police will be determining what is in conformity with the doctrines, beliefs or principles of that religion. We had a government that said it was speaking to stakeholders and listened –

Jaclyn Symes: On a point of order, Deputy President, I answered the question in relation to who makes the determination. It is not VEOHRC, it is not the DPP; it is courts and tribunals. Mr Mulholland is misleading the house in the application of this particular clause.

The DEPUTY PRESIDENT: There is no point of order.

Evan MULHOLLAND: So we are leaving it up to courts and tribunals to decide what is in conformity with the doctrines, beliefs or principles of that religion, and now we know that the part-time Attorney-General did not actually consult with stakeholders, including faith groups, prior to agreeing to this amateur-hour amendment to restrict and, to quote the Greens member, ‘narrow’ the interpretation of what the government actually consulted on to make clear its intention in the bill. That is now being narrowed. Let us make that clear: that is now being narrowed. The government clearly has not consulted with faith communities. This amendment by the Greens would not be being supported and not be passed into law without the agreement of the Labor Party, who say they are for faith communities and spend taxpayer money hosting events for diverse religious communities and then go around narrowing the scope of laws that restrict religious freedom.

I just wanted to get that on record and also to ask the minister: in terms of the determination of the doctrine, would the interpretation be similar to the interpretation of protected attributes and the subsets of protected attributes? There are a lot of different religions where a subset of that religion has a very vastly different view to another part – and I suspect the only reason why the Greens consulted with the Uniting Church of Victoria and Tasmania is because they would not dare approach the Maronite church or the Assyrian church or the Chaldean church on their view of these particular amendments, because I think we know what they would say. I am asking the minister whether she believes the intent of this clarification would be the courts or tribunals looking into conformity with the doctrines, beliefs or principles of that religion and whether ‘of that religion’ involves the specific religion.

Jaclyn SYMES: At the outset, Mr Mulholland, your attack on the Greens is a little bit hypocritical considering if you think that they are doing anything in any way to abandon religious groups, I would put on record that you abandoned religious groups first by proposing that you would not support civil protections for faith communities, and as I understand it, that remains the Liberal Party’s position in relation to this bill. It is quite hypocritical to then attack another amendment when your amendment was purely to not support civil protections for people who have a particular faith base or practise a particular religion.

Again, I think this is probably more appropriate for Mr Puglielli to go through but my reading of the Greens amendment is we have a non-exhaustive list in the bill at clause 9. Just to put it on record, with these terms we have attempted to ensure we are covering the field in relation to conduct and behaviour of people that are in the practice of their faith. That is where preaching and proselytising come in. When it comes to the Greens amendment – and maybe I could do this almost by answering a question with a question – Mr Puglielli, in relation to ‘that is in conformity with the doctrines, beliefs or principles of that religion’, I take that – and I am interested in your view – to basically refer to practising the religion in the ordinary way. Do you want to elaborate on that for me?

Aiv PUGLIELLI: Yes. I concur. That is also my interpretation.

Jaclyn SYMES: Mr Mulholland, the concern I have is: if we are talking about the way people conform with the doctrines, beliefs and principles of a particular religion, how is that a concern to anybody that is practising their religion? It is basically just a description of how they are doing it and conforming with their religion. They are being true to their religion. They are acting in accordance with their faith. That is what ‘conformity’ means to me, without having the opportunity to look at a dictionary. So if you are following the norms of your religion – that is effectively how I am reading that addition. So what that does is support our contention that there is a place for an exception for religious practice to ensure that people who practise faith have confidence that they are not going to contravene these laws. But we have also said you cannot use your religious beliefs as a cloak to vilify people with the excuse that your religion is there, because otherwise you would be acting outside the conformity of your doctrine; you would be acting opposed to your religion. That is the behaviour that we kind of want to make sure we are picking up. But if you are genuinely and in good faith following and conforming to your religion, whether it is through preaching, proselytising, communicating or praying, I do not see how you can have a problem with this. It is not intended to do anything except to really clarify that religious exceptions actually apply in a range of particular behaviours, as long as they are in line with the practices of your particular faith.

Evan MULHOLLAND: Minister, you are a former Attorney-General. We have heard from the Greens in their contribution talk about a narrowing. That obviously has precedence in determining and interpreting the legislation. Would you not agree that this particular amendment is a narrowing?

Jaclyn SYMES: Let me confer with all of the lawyers over here.

The advice is that the addition of the words from the Greens is contextualising and clarifying.

Evan MULHOLLAND: That is quite a cute way to describe narrowing in my view.

Jaclyn SYMES: On a point of order, Deputy President, I am being verballed by the member, who is giving an interpretation to my answer which is untrue.

Aiv PUGLIELLI: Further to the point of order, Deputy President, I am also being verballed through this line of questioning repeatedly in the use of the word ‘narrow’.

The DEPUTY PRESIDENT: There is no point of order, but you have made your points in Hansard.

Evan MULHOLLAND: I am just simply repeating the members’ words, particularly the members’ words as well when they were discussing this. When you were talking about conformity within their communities, when you were saying ‘within their faith communities’, did you mean to explain the effect of this amendment to mean that these faith communities should only really proselytise, teach or preach within their own communities and not to others that might not be of their particular faith?

Aiv PUGLIELLI: As I have already put on record, we are seeking to clarify the scope of the religious exception to ensure that there is a close and direct nexus – you could say a narrow nexus – between preaching and proselytising and a person’s religious beliefs.

Evan MULHOLLAND: Mr Puglielli, on your interpretation of the point particularly about proselytising, you mentioned a broad range of stakeholder groups that you have consulted with. You mentioned the Uniting Church of Victoria and New South Wales. Did you consult with any other Christian faith groups regarding this amendment?

Aiv PUGLIELLI: I should correct for the record: that was Uniting Victoria and Tasmania, not New South Wales. Further to this, as I have indicated, we read through every submission that was made to the inquiry that predated this bill. As I have indicated, that is a non-exhaustive list. As I have indicated, beyond Christian faiths there were groups, such as the Islamic Council of Victoria and the Jewish Council of Australia, that we also consulted with prior to these amendments being brought before us today.

Evan MULHOLLAND: Do you accept that the Jewish Council of Australia is not a representative body for the Jewish community – not as representative as the Australian Jewish Association is – and is not a credible stakeholder organisation regarding the Jewish community?

Aiv PUGLIELLI: I am here to respond to questions relating to our amendments to this bill, not to make statements about community groups.

Evan MULHOLLAND: Mr Puglielli, there was a specific line of questioning – which you have already answered, so you have already opened yourself up to that line of questioning – on who you have consulted regarding your amendments. Therefore it is perfectly valid to ask about the stakeholders that you have consulted. Why did you not consult other Jewish organisations regarding this amendment?

Aiv PUGLIELLI: As I have indicated, we have read every submission that was made into that prior inquiry predating this bill.

Evan MULHOLLAND: Mr Puglielli, the government says the amendment is ‘contextualising and clarifying’ regarding needing to conform with the doctrines, beliefs and principles of that religion. In your view – and it might be the view of your stakeholders – what is your interpretation of what this amendment does?

Aiv PUGLIELLI: I feel like we are going around in circles. I have already indicated this clarifies the scope of the religious exception.

Evan MULHOLLAND: You have said that it clarifies the scope of the religious exemption. Is that to put a remit on the scope of the religious exemption that currently exists in the bill? Is that to not have it be so expansive?

Aiv PUGLIELLI: I have well and truly answered this question.

Rachel PAYNE: My question is for the minister. Just circling back to the Greens amendments 11 and 12, in the government’s view are the Greens amendments 11 and 12 necessary or are these circumstances that the commission and the tribunal would already take into account?

Jaclyn SYMES: The commission or tribunal would be able to consider the particular characteristics or vulnerabilities of either a complainant or a respondent. Those would be open to both bodies to consider. Is that what you asked?

Rachel PAYNE: What I am trying to ascertain is if these amendments actually add to the bill or if there is scope to consider the fact that they are probably already performing these roles, both the commission and the tribunals.

Jaclyn SYMES: No, we do think that they are not necessary. We do not think they are critical to the operation of the bill, nor that they undermine the operation of the bill.

Evan MULHOLLAND: I do not know if we are up to this yet, but given we have considered the Greens amendments as a whole, I am wondering whether I could use this section to just ask about the Legalise Cannabis Party amendment.

The DEPUTY PRESIDENT: When we get to the Legalise Cannabis Party amendment.

Evan MULHOLLAND: Okay. Yes, I am happy to do that.

The DEPUTY PRESIDENT: If there are no further questions on the Greens amendments, the question is that Mr Puglielli’s amendment 1 on his sheet AP51C, which inserts a new clause, stand part of the bill.

Council divided on new clause:

Ayes (22): Ryan Batchelor, John Berger, Lizzie Blandthorn, Katherine Copsey, Enver Erdogan, Jacinta Ermacora, David Ettershank, Michael Galea, Anasina Gray-Barberio, Shaun Leane, Sarah Mansfield, Tom McIntosh, Rachel Payne, Aiv Puglielli, Georgie Purcell, Harriet Shing, Ingrid Stitt, Jaclyn Symes, Lee Tarlamis, Sonja Terpstra, Gayle Tierney, Sheena Watt

Noes (17): Melina Bath, Jeff Bourman, Gaelle Broad, Georgie Crozier, David Davis, Moira Deeming, Renee Heath, Ann-Marie Hermans, David Limbrick, Wendy Lovell, Trung Luu, Bev McArthur, Joe McCracken, Nick McGowan, Evan Mulholland, Rikkie-Lee Tyrrell, Richard Welch

New clause agreed to.

Aiv PUGLIELLI: I move:

2. Clause 1, after line 5 insert –

“(ab) to protect Aboriginal and Torres Strait Islander people and others experiencing systemic injustice and structural oppression; and

(ac) to promote full and equal participation in an open and inclusive democratic society, without impeding robust discussion that does not vilify or marginalise others based on a protected attribute; and”.

Council divided on amendment:

Ayes (22): Ryan Batchelor, John Berger, Lizzie Blandthorn, Katherine Copsey, Enver Erdogan, Jacinta Ermacora, David Ettershank, Michael Galea, Anasina Gray-Barberio, Shaun Leane, Sarah Mansfield, Tom McIntosh, Rachel Payne, Aiv Puglielli, Georgie Purcell, Harriet Shing, Ingrid Stitt, Jaclyn Symes, Lee Tarlamis, Sonja Terpstra, Gayle Tierney, Sheena Watt

Noes (17): Melina Bath, Jeff Bourman, Gaelle Broad, Georgie Crozier, David Davis, Moira Deeming, Renee Heath, Ann-Marie Hermans, David Limbrick, Wendy Lovell, Trung Luu, Bev McArthur, Joe McCracken, Nick McGowan, Evan Mulholland, Rikkie-Lee Tyrrell, Richard Welch

Amendment agreed to.

Amended clause agreed to.

Clause 2 (02:32)

Rachel PAYNE: I move:

1. Clause 2, lines 24 and 25, omit “18 September 2027” and insert “30 June 2026”.

This is in reference to clause 2, lines 24 and 25, and clause 44, line 18. These amendments will bring forward the latest commencement date of the bill from 18 September 2027 to 30 June 2026, which is essentially bringing forward the commencement for civil anti-vilification protections.

Evan MULHOLLAND: In moving the commencement date for the civil side of the bill to 30 June 2026, did the Legalise Cannabis Party particularly demand any extra resources for both VEOHRC and also VCAT in terms of their operations to commence earlier?

Rachel PAYNE: Mr Mulholland, it was my understanding that you asked a question to the Treasurer in regard to funding, and the Treasurer’s response – and I do not mean to verbal you – was that it was part of the normal budget process. In saying that though, yes, I have spoken with VEOHRC in particular, and I did make reference to the fact that it was discussed that funding would be part of that further ongoing discussion. Yes, I think it is satisfied.

Evan MULHOLLAND: I note that the previous explanation for the date of 18 September 2027 was that the timing and commencement of civil provisions is to ensure that affected stakeholders and entities responsible for the delivery of these reforms have sufficient time to complete all necessary implementation and readiness activities prior to the commencement of the reforms in new part 6A of the Equal Opportunity Act 2010 and the repeal of the Racial and Religious Tolerance Act 2001. I will note, in a similar vein to my previous question, that Court Services Victoria, who fund VCAT as well as Victoria’s courts, have had a $19.1 million budget cut to VCAT this financial year and announced a $58 million budget cut to CSV in 2027–28, which was meant to be the first full financial year that the civil change was to come into effect. You are essentially sliding backwards in terms of funding as it is meant to be ramping up. Did the Legalise Cannabis Party have discussions around this funding prior to making this agreement?

Rachel PAYNE: I would just reiterate that as part of normal budget bids this would be taken into consideration. It is noted that there is a backlog in cases with VEOHRC, and that has been a discussion that I have had with the human rights commissioner. What would be then appropriate moving forward would be that the commissioner would put forward these laws to be enacted, for the legislation to be moved forward in an expedited manner for that date of 30 June 2026 and for there to be additional resources to cater for that backlog. That is a discussion that I have had with both the government and the commissioner.

Evan MULHOLLAND: Part of the explanation from the Attorney-General’s office in the briefing in terms of the date being so far out was that similar civil law reforms in Scotland led to an explosion of civil claims immediately upon their coming into operation. Are you concerned that we could see the same result or impact by bringing it forward prematurely?

Rachel PAYNE: I cannot actually comment on behalf of the Attorney-General, but what I would say is that this legislation has been a long process in the making. Since 2019, when the inquiry process was underway, there has been no denying that those service providers that were to facilitate enacting these ongoing protections would be preparing for that.

David LIMBRICK: The Libertarian Party will be enthusiastically supporting this amendment. I believe that it is important that the Victorian public get to experience this new regime before the next election, and the sooner that we can experience this and experience how bad this new regime is, the sooner Victorians will form a view on it. So I enthusiastically support bringing in this legislation to commence on 30 June next year.

Council divided on amendment:

Ayes (23): Ryan Batchelor, John Berger, Lizzie Blandthorn, Katherine Copsey, Enver Erdogan, Jacinta Ermacora, David Ettershank, Michael Galea, Anasina Gray-Barberio, Shaun Leane, David Limbrick, Sarah Mansfield, Tom McIntosh, Rachel Payne, Aiv Puglielli, Georgie Purcell, Harriet Shing, Ingrid Stitt, Jaclyn Symes, Lee Tarlamis, Sonja Terpstra, Gayle Tierney, Sheena Watt

Noes (16): Melina Bath, Jeff Bourman, Gaelle Broad, Georgie Crozier, David Davis, Moira Deeming, Renee Heath, Ann-Marie Hermans, Wendy Lovell, Trung Luu, Bev McArthur, Joe McCracken, Nick McGowan, Evan Mulholland, Rikkie-Lee Tyrrell, Richard Welch

Amendment agreed to.

Amended clause agreed to; clause 3 agreed to.

Clause 4 (02:39)

Aiv PUGLIELLI: I move:

3. Clause 4, page 7, line 27, before “A” insert “(1)”.

4. Clause 4, page 7, line 28, omit “195O(1) – “ and insert “195O(1)”.

5. Clause 4, page 7, line 29, omit “(a)”.

6. Clause 4, page 7, line 29, after “by” insert “or with the consent of”.

7. Clause 4, page 7, line 30, omit “Prosecutions or a” and insert “Prosecutions.”.

8. Clause 4, page 7, line 31, omit all words and expressions on this line.

9. Clause 4, page 8, lines 1 to 5, omit all words and expressions on these lines.

10. Clause 4, page 8, after line 5 insert –

“(2) In determining whether an offence against section 195N(1) or 195O(1) is to be prosecuted, the Director of Public Prosecutions must take into account all the circumstances (including the social, cultural and historical circumstances) surrounding the conduct that is alleged to constitute the offence.”.

Council divided on amendments:

Ayes (22): Ryan Batchelor, John Berger, Lizzie Blandthorn, Katherine Copsey, Enver Erdogan, Jacinta Ermacora, David Ettershank, Michael Galea, Anasina Gray-Barberio, Shaun Leane, Sarah Mansfield, Tom McIntosh, Rachel Payne, Aiv Puglielli, Georgie Purcell, Harriet Shing, Ingrid Stitt, Jaclyn Symes, Lee Tarlamis, Sonja Terpstra, Gayle Tierney, Sheena Watt

Noes (17): Melina Bath, Jeff Bourman, Gaelle Broad, Georgie Crozier, David Davis, Moira Deeming, Renee Heath, Ann-Marie Hermans, David Limbrick, Wendy Lovell, Trung Luu, Bev McArthur, Joe McCracken, Nick McGowan, Evan Mulholland, Rikkie-Lee Tyrrell, Richard Welch

Amendments agreed to.

Amended clause agreed to; clauses 5 to 8 agreed to.

Clause 9 (02:49)

Aiv PUGLIELLI: I move:

11. Clause 9, page 12, after line 23 insert –

“(ba) homelessness;

(bb) immigration status;”.

12. Clause 9, page 12, after line 27 insert –

“(fa) sex worker status;”.

Council divided on amendments:

Ayes (19): Ryan Batchelor, John Berger, Lizzie Blandthorn, Katherine Copsey, Enver Erdogan, Jacinta Ermacora, Michael Galea, Anasina Gray-Barberio, Shaun Leane, Sarah Mansfield, Tom McIntosh, Aiv Puglielli, Harriet Shing, Ingrid Stitt, Jaclyn Symes, Lee Tarlamis, Sonja Terpstra, Gayle Tierney, Sheena Watt

Noes (20): Melina Bath, Jeff Bourman, Gaelle Broad, Georgie Crozier, David Davis, Moira Deeming, David Ettershank, Renee Heath, Ann-Marie Hermans, David Limbrick, Wendy Lovell, Trung Luu, Bev McArthur, Joe McCracken, Nick McGowan, Evan Mulholland, Rachel Payne, Georgie Purcell, Rikkie-Lee Tyrrell, Richard Welch

Amendments negatived.

Evan MULHOLLAND: I move:

Clause 9, page 14, lines 3 and 4, omit “with the protected attribute”.

Jaclyn SYMES: I will breeze through this as I have already put things on the public record. But just to come back to it, seeing we have not been here for some time, if the words ‘with the protected attribute’ were removed from the bill – we have had a lot of backwards-and-forwards commentary about four words holding up the Liberals’ support for this bill. I would have thought that there is a little bit more opposition to this bill than four words given that we have been in committee since 7:30 tonight. I think that is cover for general opposition to protection of vulnerable Victorians, and you are covering up for that by pointing to four little words. May I point out that if we were to remove those four little words, it would mean that conduct that is highly offensive to the targeted group but is not offensive to the broader community would not be captured by the laws, completely undermining the intent of the harm-based test to protect the most vulnerable members of the Victorian community by ensuring that their specific lived experience and harm is truly recognised and understood. A broad concept of a reasonable-person assessment may insufficiently capture the specific harms that people experience. This is what people told us. This is what people who made submissions and appeared before the parliamentary committee said. It is what led members of the Liberal Party who were on that committee to endorse a report that had bipartisan support for recommendation 9 of the inquiry that future legislation should include a harm-based test to be assessed from the perspective of the targeted group. The government does not support this amendment.

David LIMBRICK: The Libertarian Party will be supporting this amendment. I was not part of that committee and I did not support or otherwise have any part in that committee. However, as has been explored extensively throughout the committee stage, I feel that this is an unworkable system. The groups and subgroups and the attributes, subattributes and sub-subattributes seem totally unworkable, and therefore I will be supporting this amendment to remove these words.

Aiv PUGLIELLI: Just to speak to the Greens position here, this amendment would make a change that fundamentally undermines the specific protections within this bill, specific protections intended to shield our most vulnerable communities from hate speech and vilification. By shifting the assessment of harm from the perspective of a reasonable member of a group with a protected attribute to that of a general reasonable person, these amendments risk diluting the effectiveness of the bill. This approach neglects the unique experiences of those directly impacted by vilification. It invalidates their experiences and the very real threats they face daily, so we will not be supporting this.

Evan MULHOLLAND: Just to respond to that and respond to what can only be described as a slur by the Leader of the Government in regard to the Liberal Party’s position on this bill, this is something that we have particularly raised in multiple different forums. In several media releases from my colleague Mr O’Brien, in conversations with the government and in bill briefings with the government we raised several times the subjectivity of viewing a reasonable person through that of a person with that particular protected attribute and a particular subset of that particular protected attribute, because we know that subjective laws on speech are bad laws. If you are driving 110 kilometres in an 80-kilometre zone, say, down the Eastern Freeway, you know you are breaking the law. That is an objective law. Under these changes, no-one will know if they are committing an offence under these laws. That is why we have moved these changes to view the harm in terms of a reasonable person – to make it an objective law rather than a subjective law, because as I said, subjective laws are bad laws.

Council divided on amendment:

Ayes (17): Melina Bath, Jeff Bourman, Gaelle Broad, Georgie Crozier, David Davis, Moira Deeming, Renee Heath, Ann-Marie Hermans, David Limbrick, Wendy Lovell, Trung Luu, Bev McArthur, Joe McCracken, Nick McGowan, Evan Mulholland, Rikkie-Lee Tyrrell, Richard Welch

Noes (22): Ryan Batchelor, John Berger, Lizzie Blandthorn, Katherine Copsey, Enver Erdogan, Jacinta Ermacora, David Ettershank, Michael Galea, Anasina Gray-Barberio, Shaun Leane, Sarah Mansfield, Tom McIntosh, Rachel Payne, Aiv Puglielli, Georgie Purcell, Harriet Shing, Ingrid Stitt, Jaclyn Symes, Lee Tarlamis, Sonja Terpstra, Gayle Tierney, Sheena Watt

Amendment negatived.

Aiv PUGLIELLI: I move:

13. Clause 9, page 16, line 4, after “proselytising” insert “that is in conformity with the doctrines, beliefs or principles of that religion”.

Council divided on amendment:

Ayes (22): Ryan Batchelor, John Berger, Lizzie Blandthorn, Katherine Copsey, Enver Erdogan, Jacinta Ermacora, David Ettershank, Michael Galea, Anasina Gray-Barberio, Shaun Leane, Sarah Mansfield, Tom McIntosh, Rachel Payne, Aiv Puglielli, Georgie Purcell, Harriet Shing, Ingrid Stitt, Jaclyn Symes, Lee Tarlamis, Sonja Terpstra, Gayle Tierney, Sheena Watt

Noes (17): Melina Bath, Jeff Bourman, Gaelle Broad, Georgie Crozier, David Davis, Moira Deeming, Renee Heath, Ann-Marie Hermans, David Limbrick, Wendy Lovell, Trung Luu, Bev McArthur, Joe McCracken, Nick McGowan, Evan Mulholland, Rikkie-Lee Tyrrell, Richard Welch

Amendment agreed to.

The DEPUTY PRESIDENT: Mr Mulholland’s amendment 16 is just to omit the clause. The question is that the clause stand part of the bill. Those supporting Mr Mulholland’s amendment should vote against it, as amended.

Jaclyn Symes: Can we talk about the impact of what that would do so people know how they are voting?

The DEPUTY PRESIDENT: If you want to something really quickly, Minister, that would be good.

Jaclyn SYMES: I think it is just important to not skim over the implications of Mr Mulholland’s proposal here. This is basically an omission to delete the impact of half of the bill. No-one is served by this proposal. If it was to succeed, it would mean that civil anti-vilification laws would remain limited to racial and religious vilification under the Racial and Religious Tolerance Act, which does not work, as we have already heard from multiple people, from those that have a religious or racial attribute that have suffered harm. It is going to provide no benefit to that cohort of people. There would be no extension of protected attributes, no harm-based tests, no modification to the incitement-based test or civil exceptions and no extension of VEOHRC’s powers to better respond to vilification. So not only are we not serving racial and religious behaviour that is adverse to racial and religious attributes, we are being asked by the Liberal Party to send a message to everybody else who has been vilified and caused harm based on another attribute, whether that be disability, gender identity, race, religious belief or activity, sex, sex characteristics, sexual orientation or personal association. The Liberal Party are sending a message to every member of that community that they do not care about you and you do not need protections. As for the people that we have been purporting to represent wholeheartedly in relation to ensuring that faith-based voices are heard, they are not benefiting from this amendment either. This is mean-spirited. You failed to weaken the laws, and now you are going to deny everyone protection. I think it is shameful.

Council divided on clause:

Ayes (22): Ryan Batchelor, John Berger, Lizzie Blandthorn, Katherine Copsey, Enver Erdogan, Jacinta Ermacora, David Ettershank, Michael Galea, Anasina Gray-Barberio, Shaun Leane, Sarah Mansfield, Tom McIntosh, Rachel Payne, Aiv Puglielli, Georgie Purcell, Harriet Shing, Ingrid Stitt, Jaclyn Symes, Lee Tarlamis, Sonja Terpstra, Gayle Tierney, Sheena Watt

Noes (17): Melina Bath, Jeff Bourman, Gaelle Broad, Georgie Crozier, David Davis, Moira Deeming, Renee Heath, Ann-Marie Hermans, David Limbrick, Wendy Lovell, Trung Luu, Bev McArthur, Joe McCracken, Nick McGowan, Evan Mulholland, Rikkie-Lee Tyrrell, Richard Welch

Clause agreed to.

Clauses 10 to 43 agreed to.

Clause 44 (03:10)

Rachel PAYNE: I move:

2. Clause 44, line 18, omit “18 September 2028” and insert “30 June 2027”.

Council divided on amendment:

Ayes (22): Ryan Batchelor, John Berger, Lizzie Blandthorn, Katherine Copsey, Enver Erdogan, Jacinta Ermacora, David Ettershank, Michael Galea, Anasina Gray-Barberio, Shaun Leane, Sarah Mansfield, Tom McIntosh, Rachel Payne, Aiv Puglielli, Georgie Purcell, Harriet Shing, Ingrid Stitt, Jaclyn Symes, Lee Tarlamis, Sonja Terpstra, Gayle Tierney, Sheena Watt

Noes (17): Melina Bath, Jeff Bourman, Gaelle Broad, Georgie Crozier, David Davis, Moira Deeming, Renee Heath, Ann-Marie Hermans, David Limbrick, Wendy Lovell, Trung Luu, Bev McArthur, Joe McCracken, Nick McGowan, Evan Mulholland, Rikkie-Lee Tyrrell, Richard Welch

Amendment agreed to.

Amended clause agreed to.

Reported to house with amendments.

Jaclyn SYMES (Northern Victoria – Treasurer, Minister for Industrial Relations, Minister for Regional Development) (03:15): I move:

That the report be now adopted.

In doing so, just quickly – again coming back to first principles – this bill is about protecting Victorians, particularly vulnerable Victorians. It is late, but we should collectively be very proud as a Parliament in what we have achieved this evening.

Motion agreed to.

Report adopted.

Third reading

Jaclyn SYMES (Northern Victoria – Treasurer, Minister for Industrial Relations, Minister for Regional Development) (03:15): I move:

That the bill be now read a third time and do pass.

Council divided on motion:

Ayes (22): Ryan Batchelor, John Berger, Lizzie Blandthorn, Katherine Copsey, Enver Erdogan, Jacinta Ermacora, David Ettershank, Michael Galea, Anasina Gray-Barberio, Shaun Leane, Sarah Mansfield, Tom McIntosh, Rachel Payne, Aiv Puglielli, Georgie Purcell, Harriet Shing, Ingrid Stitt, Jaclyn Symes, Lee Tarlamis, Sonja Terpstra, Gayle Tierney, Sheena Watt

Noes (17): Melina Bath, Jeff Bourman, Gaelle Broad, Georgie Crozier, David Davis, Moira Deeming, Renee Heath, Ann-Marie Hermans, David Limbrick, Wendy Lovell, Trung Luu, Bev McArthur, Joe McCracken, Nick McGowan, Evan Mulholland, Rikkie-Lee Tyrrell, Richard Welch

Motion agreed to.

Read third time.

The PRESIDENT: Pursuant to standing order 14.28, the bill will be returned to the Assembly with a message informing them that the Council have agreed to the bill with amendments.