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Racial and Religious Tolerance Bill
As Sent Print
EXPLANATORY MEMORANDUM
General
Objectives of the Legislation
The Racial and Religious Tolerance Bill aims to prevent racial and religious
vilification damaging the cohesion and harmony of Victoria's culturally
diverse community. In common with the laws of all of the other Australian
States, the Australian Capital Territory and the Commonwealth, the Bill will
prohibit racial vilification. Religious vilification will also be prohibited.
The Racial and Religious Tolerance Bill contains provisions that--
· prohibit vilification of people on the grounds of race or religion, subject
to specified exceptions;
· provide a means of civil redress for victims of racial or religious
vilification under the existing mechanism for conciliation of complaints
under the Equal Opportunity Act 1995;
· exempt from liability conduct engaged in reasonably and in good faith
in the public interest or for a genuine academic, artistic, religious or
scientific purpose;
· provide an offence for the incitement of racial hatred;
· prohibit victimisation of a person who makes a complaint of racial or
religious vilification or takes required action in connection with any
proceedings before a court or tribunal under this Bill;
· make consequential amendments to the Equal Opportunity Act 1995.
By applying these measures, the Bill will promote the following objects--
· provide a way for the victims of racial and religious vilification to obtain
civil redress which is inexpensive and accessible;
· prohibit extreme behaviour that denies the right of Victorians of all racial
backgrounds and religious beliefs to participate as equals in the
community;
541150 BILL LA AS SENT 6/6/2001
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· promote conciliation to resolve civil complaints and be a means of
overcoming prejudice and ignorance;
· strike a balance by prohibiting racial and religious vilification while still
ensuring that freedom of expression can be exercised.
The Operation of the Bill
The term "racial and religious vilification" describes any sort of conduct
which communicates serious racial and religious intolerance. Vilification
includes communications that malign, abuse or seriously derogate other
people or groups of people because of their racial background or religious
beliefs and practices. It can include intimidation, damage to property, graffiti
and expressions of hatred or contempt by messages over the internet. It is
damaging not only to the individuals or groups vilified, but also to the
cohesion and harmony of a culturally diverse society.
The Bill will prohibit extreme conduct which promotes and urges the
strongest feelings of revulsion, hatred or dislike of a person or group on the
ground of the racial background or religious beliefs and practices of that
person or group. Engaging in prohibited conduct can give cause for a civil
complaint. This prohibition is balanced by exceptions to liability which are
designed to strike a balance between the right to freedom of expression and
the right to freedom from racial and religious vilification.
An exception is provided for conduct or discussion that is engaged in
"reasonably and in good faith" in an artistic performance, for a genuine
academic, artistic, religious or scientific purpose or for any purpose that is in
the public interest. These nominated purposes are intended to have a broad
meaning. For example, the discussion of religious issues includes a
statement of religious belief, religious instruction and discussion concerning
the conduct and practices of religious bodies. Similarly, the discussion of
matters in the public interest would include discussion of any public affairs
with which the community may be concerned.
There is also an exception for private conduct or discussion.
This Bill will be a separate piece of legislation entailing consequential
amendments to the Equal Opportunity Act 1995. The mechanism under the
Equal Opportunity Act 1995 for the conciliation of civil complaints about
racial and religious vilification before the Equal Opportunity Commission
and the determination of claims for compensation before the Victorian Civil
and Administrative Tribunal under that Act will be adopted. In Victoria,
complaints about racial vilification currently can only be dealt with under
Commonwealth legislation. These complaints must be referred to the Human
Rights and Equal Opportunity Commission in Sydney.
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The Bill also creates a criminal offence of racial and religious vilification.
The criminal offence is specified to apply only to the most extreme
behaviour. This is behaviour that actively urges or promotes hatred or
revulsion towards a person or group on the ground of their racial background
or religious beliefs and practices. This behaviour involves threatening harm
to persons or property or inciting others to threaten such harm. A
prosecution will be by way of summary proceeding in the Magistrates' Court.
However, the consent of the DPP is necessary for a prosecution to be
brought.
Clause Notes
The Preamble states both the background and reasons for the enactment of
the proposed Act. It acknowledges the importance of freedom of expression,
the democratic value of the equal participation of all citizens in society and
the desire of Parliament to support racial and religious tolerance.
PART 1--PRELIMINARY
Clause 1 states the purposes of the Act.
Clause 2 is the commencement provision. The Act will commence
operation on a day to be proclaimed. Any provision not
proclaimed to commence before 1 January 2002 will commence
on that day.
Clause 3 defines certain words or expressions used in this Act--
· the words and expressions "child", "detriment", "employee",
"employer", "impairment", "parent", "race" and "Tribunal"
either refer to, or replicate, the definitions in the Equal
Opportunity Act 1995.
· the definition of "complaint" refers to a complaint lodged
with the Equal Opportunity Commission under section 20 of
this Act.
· the definition of "religious belief or activity" replicates the
definition of that expression in the Equal Opportunity Act
1995 which refers to a "lawful" religious belief. A "lawful"
religious belief or activity refers to beliefs or practices which
are not contrary to the current law.
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Clause 4 states the objects of this Act. This provision requires the Act to
be interpreted in a manner which gives effect to--
· the equal participation of every person in a society which
values freedom of expression;
· the right to engage in discussion of any matter in the public
interest or comment on artistic expression, discuss religious
issues or join in academic debate;
· promoting conciliation and resolving disputes between those
who vilify others on the ground of their race or religious
beliefs and those persons who are vilified.
Clause 5 specifies that a contravention of this Act does not create any
separate civil or criminal liability, except as created by this Act.
Clause 6 provides for the Act to bind the Crown.
PART 2--UNLAWFUL CONDUCT
Division 1--Unlawful Vilification
Clause 7 specifies the conduct required to constitute racial vilification.
Conduct that incites feelings of hatred against, serious contempt
for, revulsion or severe ridicule of a person or class of persons on
the ground of the race of that person or class of persons is
prohibited. This conduct may be constituted by a single act or a
series of acts over time and may include communications using
the internet.
It is not necessary that the conduct occur in Victoria.
For example, a message may be sent from outside Victoria to
vilify a person or group living in Victoria.
In this provision, a "class of persons" refers to a collection or
group of persons who are regarded as having certain common
attributes or traits.
When such conduct occurs, the person or group vilified can seek
civil redress by making a complaint under this Act.
Clause 8 specifies the conduct required to constitute religious vilification.
Conduct that incites feelings of hatred against, serious contempt
for, revulsion or severe ridicule of, a person or class of persons
on the ground of the religious belief or activity of that person or
class of persons is prohibited. This conduct may be constituted
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by a single act or a series of acts over time and may include
communications using the internet.
It is not necessary that the conduct occur in Victoria.
For example, a message may be sent from outside Victoria to
vilify a person or group living in Victoria.
In this provision, a "class of persons" refers to a collection or
group of persons who are regarded as having certain common
attributes or traits.
When such conduct occurs, the person or group vilified can seek
civil redress by making a complaint under this Act.
Clause 9 states that in determining whether a person has contravened
clause 7 or 8, the motive for the conduct is irrelevant. It is also
irrelevant whether the race or religious belief or activity of the
vilified person or group was the only or dominant ground for the
conduct.
Clause 10 provides that an incorrect assumption made by a person engaging
in vilifying conduct concerning the race or religious belief or
activity of another person or class of persons is irrelevant in
determining whether the person contravened clause 7 or 8. For
example, if a person vilifies a group of persons in the mistaken
belief that they are of Indian origin, that person's behaviour will
not be excused because the group were of a different racial
origin.
Clause 11 provides an exception in relation to certain kinds of conduct.
Conduct is excepted from liability if it is engaged in reasonably
and in good faith in the course of an artistic performance, for a
genuine academic, artistic, religious or scientific purpose or for
any purpose that is in the public interest. The exception is
available to any person who engages in conduct for one of these
purposes. The provision is not confined to conduct by artists,
academics, scientists or reporting by the media. The onus lies on
the person who claims an exception to prove that the exception
applies.
This provision requires, on an objective review, that the conduct
must have been engaged in "reasonably and in good faith".
The exception will not apply to conduct or statements which are
immoderate or inflammatory. For example, the exception will
not protect academic debate which, when objectively considered,
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appears designed to be inflammatory or offensive to an ethnic or
religious group.
The provision also requires that conduct genuinely engaged in
for an academic, artistic, religious or scientific purpose must,
when objectively considered, be engaged in truly for that
purpose. The exception will not apply to conduct disguised as
discussion for one of these purposes if it is not engaged in
reasonably and in good faith. For example, a member of a
religious body cannot use the religious exception to racially
vilify an ethnic group.
Clause 12 provides an exception for private conduct. Conduct or a
conversation occurring in circumstances in which the parties can
be taken to have intended it to be seen or heard only by
themselves, and no-one else, will escape liability. The intention
of the parties is determined objectively, taking into consideration
of all the circumstances in which the conduct or conversation
took place.
The onus lies on the person who claims the exception to prove
that the exception applies.
Division 2--Other Unlawful Conduct
Clause 13 prohibits victimisation.
Clause 14 defines victimisation as subjecting a person to detriment or
threatening to do so because that person has lodged a complaint
or has taken any necessary step to pursue a complaint under this
Act. It is only necessary that the action by the person is a
substantial ground for the detriment to which the person is
subjected.
Clause 15 prohibits the encouragement, authorisation or assistance of a
person to contravene the prohibitions on vilification and
victimisation in Part 2.
Clause 16 provides that a person, who has encouraged, authorised or
assisted another person to contravene the prohibitions on
vilification and victimisation in Part 2, will also be taken to have
contravened those prohibitions. A complaint can also be lodged
against that person in accordance with this Act.
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Clause 17 provides that an employer or principal will be vicariously liable
for the conduct of an employee or agent which contravenes a
prohibition on vilification and victimisation in Part 2.
Clause 18 provides that an employer or principal will not be vicariously
liable for contravention of the prohibitions on vilification and
victimisation by an employee or agent if the employer or
principal proves that he or she took reasonable precautions to
prevent the contraventions.
PART 3--COMPLAINTS AND CONCILIATION
Clause 19 sets out who may complain to the Commission concerning a
contravention of Part 2. Any person may lodge a complaint
concerning conduct in relation to that person. Children or people
with an impairment can have another person make the complaint
on their behalf. A person can also authorise another person who
was subject to the same conduct which contravened Part 2 to
lodge a complaint on their behalf. Representative bodies can
bring complaints on behalf of a person if they are authorised by
that person and have an interest in the subject matter of the
complaint.
Clause 20 states that a complaint is made by lodging written particulars of
the alleged contravention of Part 2 of this Act with the
Commission.
Clause 21 requires the Commission to assist complainants in formulating
their complaints.
Clause 22 provides for the liability of unincorporated associations.
A complaint against an unincorporated association about a
contravention of the prohibitions on vilification and victimisation
in Part 2 of this Act may be made in the name of the president,
secretary or other similar officer of that body. The named officer
to the proceedings can be changed as circumstances require.
Clause 23 applies certain provisions of the Equal Opportunity Act 1995 to
ensure that the mechanisms for the conciliation and
determination of complaints under that Act apply to a complaint
under this Act. These provisions are applied with modifications
to ensure that they are appropriate for vilification complaints.
These modifications extend the time periods in the Equal
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Opportunity Act 1995 for the handling of representative
complaints under this Act.
PART 4--SERIOUS VILIFICATION OFFENCES
Clause 24 creates an offence of serious racial vilification. Conduct that
incites hatred against a person or group on the ground of the
person's or group's race and threatens (or incites others to
threaten) physical harm to the person or group or their property,
is an offence. The prescribed maximum penalty is 60 penalty
units or 6 months imprisonment or both (300 penalty units in the
case of a body corporate).
In addition, conduct that incites feelings of serious contempt for,
or revulsion or severe ridicule of, a person or group on the
ground of the race of that person or group, is an offence.
The prescribed maximum penalty is 60 penalty units or 6 months
imprisonment or both (300 penalty units in the case of a body
corporate).
In this provision, a "class of persons" refers to a collection or
group of persons who are regarded as having certain common
attributes or traits.
These offences refer to the extreme forms of conduct which
promote and urge the strongest forms of dislike towards a person
or group because the race of the person or group. The offender
must intend the conduct in the knowledge that the promotion of
these feelings of extreme dislike will be the likely result of the
conduct. This conduct may include communications using the
internet.
The clause provides that the DPP's consent is required for a
prosecution under this section to be commenced.
Clause 25 creates an offence of serious religious vilification. Conduct that
incites hatred against a person or group on the ground of the
person's or group's religious beliefs or activities and threatens (or
incites others to threaten) physical harm to the person or group or
their property, is an offence. The prescribed maximum penalty is
60 penalty units or 6 months imprisonment or both (300 penalty
units in the case of a body corporate).
In addition, conduct that incites feelings of serious contempt for,
or revulsion or severe ridicule of, a person or group on the
ground of the religious beliefs or activities of that person or
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group, is an offence. The prescribed maximum penalty is 60
penalty units or 6 months imprisonment or both (300 penalty
units in the case of a body corporate).
In this provision, a "class of persons" refers to a collection or
group of persons who are regarded as having certain common
attributes or traits.
These offences refer to the extreme forms of conduct which
promote and urge the strongest forms of dislike towards a person
or group because of their the religious beliefs or activities.
The conduct must be intentional. This conduct may include
communications using the internet.
The clause provides that the DPP's consent is required for a
prosecution under this section to be commenced.
Clause 26 provides that an incorrect assumption made by a person engaging
in vilifying conduct concerning the race or religious beliefs or
activities of another person or class of persons is irrelevant in
determining whether the person committed an offence against
clause 24 or 25. For example, if a person vilifies a group of
persons in the mistaken belief that they are of Indian origin, the
person's behaviour will not be excused because the group were of
a different racial origin.
Clause 27 provides for the liability of corporate bodies for an offence under
Part 4. Each officer of the corporation who directed or permitted
the commission of the offence by the corporation is also guilty of
an offence. A body corporate is taken to have engaged in the
conduct constituting the offence and to have had the intention to
commit the offence if the conduct was performed by one of its
senior officers who had the requisite intention. This presumption
will not apply if the body corporate establishes that it took
reasonable precautions to avoid that conduct.
Clause 28 provides that section 465 of the Crimes Act 1958 applies to the
offences in clauses 24 and 25 as if they were indictable offences.
This ensures that the power to obtain a search warrant in respect
of an indictable offence extends to the offences in Part 4 of this
Act.
PART 5--CONSEQUENTIAL AMENDMENTS TO
THE EQUAL OPPORTUNITY ACT 1995
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Clause 29 substitutes a now obsolete expression in the Equal Opportunity
Act 1995.
Clause 30 amends the Equal Opportunity Act 1995 to ensure that the
investigatory powers under that Act can be used by the
Commission to investigate a contravention of Part 2 of this Act.
Clause 31 ensures that the education programs undertaken by the
Commission include the elimination of racial and religious
vilification.
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