Understanding the Victorian Racial and Religious Tolerance Act

By Gail Mason

Introduction

Let’s dive into the most important piece of legislation aiming at governing behaviours motivated by inter-group hatred in Victoria: the Racial and Religious Tolerance Act 2001 (Vic) ss 7 and 8.

As explained in the previous module, Australian legislation is piecemeal, and in Victoria, the main focus of anti-hate legislation is racial and religious vilification.

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

Questions to Guide the Identification and Recording of Racial or Religious Vilification: Civil law

Let’s start with a concrete step-by-step checklist to help all community stakeholders (but also scholars and other non-legal practitioners) to assess whether an act qualifies as racial or religious vilification under civil law. Please refer to the previous module to have a detailed explanation of the difference between civil and criminal law.

To qualify as racial or religious vilification under civil law in Victoria, an act needs to be:

• Public: All vilification is unlawful, no matter where it occurs, unless the person intended it to be private.
  • Did the person intend the conduct to be in private?
  • Are there signs that they did not desire to be heard by other people?
  • Is it reasonable for the person to expect that they would not be heard by others?

Eg: having a conversation in a park in a high voice might be ‘in public’ if there are other people in the vicinity, even if not close by

• Done by a person or corporation: the conduct can be by a person or a corporation

Eg: the vilification could be in a media advertisement or a company website

• Incite hatred, serious contempt, revulsion or severe ridicule:
  • is this conduct likely to stir up negative passions in the ordinary person?

Eg: a website that vilified a religious group by alleging they were involved in satanic or organised ritual sexual abuse of children without proof could be sufficient

Eg: a T-shirt with the words ‘Tony Abbott get your rosaries off my ovaries’ might not be sufficient

• On the ground of race or religion:
  • is the reason people are likely to be incited to do with the race or religion of the vilified group?
  • Religion and race include Jews, Muslims, Christians, people of colour, indigenous groups, ethnic groups and national origin

Eg: a radio journalist who claimed that all Muslims are scum and should be killed because their religion is evil could be sufficient

The next video was produced by Victoria Police. It provides some examples of racial and religious vilification as experienced by victims.

Questions to Guide the Identification and Recording of Racial or Religious Serious Vilification: Criminal

Let’s continue with a concrete step-by-step checklist to assess whether an act qualifies as racial or religious vilification under criminal law. To qualify as racial or religious vilification under criminal law in Victoria, an act needs to be in public and be on the ground of race or religion. It also needs to involve one of the following:

• Threats of Physical Harm: in addition to stirring up hatred, did the perpetrator also threaten physical harm or incite others to threaten physical harm? If so, this can aggravate the vilification. The threats should be recorded. For example, posting a film on social media of an ‘Islamic style’ mock-beheading while making comments about Muslims could be sufficient.

OR

• An intention to incite serious contempt, revulsion or severe ridicule:  is this conduct intended to stir up negative passions in the ordinary person?
  • Did the perpetrator set out to act as he/she did because of the race or religion of the victim group?
  • Are there signs that the perpetrator was aware of the possibility that negative passions would be stirred up because of their behaviour?

For example, posting a film on social media of an ‘Islamic style’ mock-beheading while making comments about Muslims could be sufficient.

• On the ground of race or religion:
  • is the reason people are likely to be incited to do with the race or religion of the vilified group?
  • Religion and race include Jews, Muslims, Christians, people of colour, indigenous groups, ethnic groups and national origin

Eg: posting a film on social media of an ‘Islamic style’ mock-beheading while making comments about Muslims could be sufficient

• Threats of Physical Harm: in addition to stirring up hatred, did the perpetrator also threaten physical harm or incite others to threaten physical harm? If so, this can aggravate the vilification. The threats should be recorded.

Eg: a speaker at a public rally who sets out to incite hatred against Jews and urges the audience to make hoax bomb threats to a synagogue could be sufficient

The Cottrell vs Ross case

A recent case that obtained significant publicity is the Cottrell vs Ross case.

In 2015, during a protest against the building of a mosque in Bendigo, far-right activists Blair Cottrell, Christopher Shortis and Neil Erikson, filmed the beheading of a mannequin with a toy sword. The video was then published on the page of the Australian far-right organisation United Patriots Front.

In 2017, the three men were found guilty of inciting serious contempt of Muslims. They were convicted and fined. After the court decision, Cottrell made an immediate bid for appeal.

In February 2019, his application to fight for free speech in the High Court was rejected, after arguing he was charged with an invalid law under the Australian constitution.

In December 2019, he lost his appeal against the conviction. The chief judge of the Victorian county court, Peter Kidd, said he did not believe that Cottrell had not intended to incite hatred, contempt and ridicule of Muslims with the stunt.

The full sentence can be found here.

Here you can watch a brief video published by the ABC in 2016 about the ideological beliefs of Blair Cottrell.

The following videos explain in clear and simple terms the different ways in which you can report a incident of hate to Victoria Police and to the Victorian Equal Opportunity and Human Rights Commission.

Examples of racial and religious vilification under civil law

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

1. VCAT found the complainants were racially vilified when they were subjected to repeated racial abuse from their neighbours. VCAT found ‘Their comments by their nature incite serious contempt, severe ridicule and hatred against the Khalils. I am satisfied that the comments were made because of the Khalils’ colour and Arabic origin:’ Khalil v Sturgess [2005] VCAT 2446.
2. VCAT found a website produced and maintained by the respondents, vilified the complainants on the grounds of their religious belief. The website claimed the Ordo Templi Orientis was a protected paedophile group and linked the Ordo Templi Orientis to alleged satanic and/or organised ritual sexual abuse of children. The website also demanded readers take action: Ordo Templi Orientis v Legg [2007] VCAT 1484.

Examples of conduct which were not found to  breach the RRTA:

• an article in a Jehovah’s Witness publication that stated ‘apostates are mentally diseased’: Unthank v Watchtower Bible and Tract Society [2013] VCAT 1810.
• Calling the complainant a ‘big fat Jewish slob’ and ‘Hitler was right about you bastards’ at a public park: Bennett v Dingle [2013] VCAT 1945.
• a newspaper advertisement with a map of Israel that did not refer to Palestine: Judeh v Jewish National Fund of Australia [2003] VCAT 1254 [44].
• an article containing criticism of the Italian government including a statement that  ‘[t]he Italian Government did what we imagine Italians do and panicked’: National Italian Australian Foundation v Herald and Weekly Times Pty Ltd [2005] VCAT 2704, [25].
• A newspaper article including the statement ‘Islam must change’: Sisalem v The Herald & Weekly Times Ltd [2016] VCAT 1197
• an article in a Slav-Macedonian newspaper titled ‘Who in this celestial world gave the Greeks the rights to take away the Macedonian language?’: Australian Macedonian Advisory Council Inc v LIVV Pty Limited [2011] VCAT 1647.
• statements made during a prison course on Christianity which was alleged to include disparaging remarks about witches, astrologers and occultists: Fletcher v Salvation Army [2005] VCAT 1523.
• a t-shirt with the words ‘Tony Abbott – get your rosaries off my ovaries’: Francis v YWCA Australia [2006] VCAT 2456.