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Anti-Vilification Commission Hearing Address 24.06.20

Making anti-vilification law work as intended

Regrettably we live in a society in which serious displays of racial hatred continue to occur.  It is well-understood that members of minority groups feel ostracised from the wider community and withdraw from participation in the broader community when they are afraid because incitement to racial hatred goes unpunished.  History has taught us that when incitement is undeterred, violence too often follows. There are many examples. 

In March 2005, the NSW Bureau of Crime Statistics and Research released a report that concluded that racist taunts are a principal cause of violence in schools. Victoria is not immune.  On 3 October 2019, The Age reported that:

A 12-year-old Jewish student was forced to kneel down and kiss the shoes of a Muslim classmate, while a five-year-old boy was allegedly called a "Jewish cockroach" and repeatedly hounded in the school toilets by his young classmates.

The Age reported further that:

No disciplinary action has been taken against the group of boys involved in the incident, which took place in a public park.

This was one of two incidents which reached The Age. 

Vilification undermines the fabric of racial harmony which generally prevails in Australian society.  It often follows from incitement.  The fact that in some instances no immediate act or threat of violence has accompanied or followed from the incitement is fortuitous and also irrelevant to the question of whether or not the State should intervene. 

We first address the civil, and then the criminal provisions.

Civil law provisions

We agree that a new civil provision should be introduced under the Equal Opportunity Act 2010 modelled on the existing harm-based tests in section 18C of the Racial Discrimination Act 1975 (Commonwealth), together with exceptions based on those set out in section 18D. 

We submit that the presently proposed reform should be accompanied by appropriate provisions that provide for compulsory conciliation speedily implemented by a state government authority with sufficient resources to undertake any necessary investigation and the conciliation task, and a right to take private action should conciliation not resolve the dispute.  Breach of the new civil provision should be a statutory tort, available to be pursued just like any other civil wrong, with no additional barriers imposed.

One must remember that in relation to the Commonwealth provisions, the Courts have clarified that section 18C only applies to conduct that has "serious and profound effects – not to be likened to mere slights": Eatock v Bolt(2011) 197 FCR 261 at 325 [268] and cases cited therein by Bromberg J. 

In relation to protecting persons who are vilified by reasons of their faith, we agree with submissions to the effect that removing "religious purpose" from section 11(b) and replacing it with a reference to "religious belief and affiliation" along the lines of the new section 93Z in the Crimes Act 1900 NSW makes good sense. 

Parliament might wish to give close consideration to the other definitions of protected categories in the new NSW Crimes Act provision.

Criminal law provisions

We attach a quick guide comparing the criminal provisions in Victoria, New South Wales and Western Australia, and an extract of the key provisions.

We test their likely effectiveness by assessing whether the now infamous incident involving Hizb Ut-Tharir's Ismail Al Wah-wah in Lakemba, New South Wales, on 25 July 2014 could sensibly be prosecuted in each state.

The incident was investigated by the NSW Police and the NSW DPP for a possible prosecution under the former section 20D of the Anti-Discrimination Act 1989 (NSW).  No prosecution eventuated. 

In front of an entirely male audience, Al Wah-wah was videoed calling on Muslims Australians to "rid" the world of Jewish "hidden evil".  He exclaimed:

"Oh Jews, nobody will give you peace.  The Jews will not thrive and will not live in safety, because they are slaves of the prophet … Judgment day will not come until the Muslims fight the Jews … tomorrow you Jews will see what will become of you." 

He openly threatened that:

"The Jews will not thrive and will not live in safety … wherever the Jew thrives, corruption thrives … whoever liberates the human race from the corruption of the Israelites … tomorrow you Jews will see what will become of you." 

In a call-and-response, the audience chants:

"Khaybar Khaybar the armies of Muhammed will return." 

That is a well-known historical reference to the historic battle of Khaybar in the year 628 CE in which Jews were massacred.  This has been known to be received as a call for violence against Jews.

The NSW Director of Public Prosecutions, focussed on the person who uploaded the speeches to the internet and determined that, as a result, there was insufficient evidence to commence prosecution.  The DPP did not address whether or not the making of the speech by Al Wah-wah itself warranted prosecution.

It is very much our view that one of the critical reforms that is needed is to remove the requirement that a special permit be obtained from a director of public prosecutions before prosecuting this type of crime.  Crimes of inciting hatred should be treated no differently to any other crime in terms of the procedural thresholds that exist.

There is an important lesson to be learned here in that any law reform is only as good as the prosecutorial will to enforce it. 

So where was the Commonwealth in the incident?  The Commonwealth Director of Public Prosecutions gave consideration to whether there would be sufficient evidence to support a charge, or charges, under section 80.2A of the Criminal Code 1995.  That code requires the prosecution to prove not only that there was an initial urging of a group to use force or violence against the targeted group, but that they intend that the force or violence will occur.  This double intentional element has proven to be a permanent barrier to any prosecution. 

In the case of Mr Al Wah-wah, there would be no doubt that he engaged in conduct which in terms of the NSW legislation was by a public act, and in terms of the Western Australian legislation was otherwise than in private. 

In NSW, one would have to demonstrate that he engaged in the conduct which constituted a threat or incitement of violence towards a person or a group of persons and that he did so recklessly, that is without regard to such consequences of his actions. 

In Western Australia, for the lesser offence, it would be sufficient to demonstrate that his conduct was likely to promote or increase animosity, being hatred of or serious contempt for Jewish people.  If intent could be proved, a longer term of imprisonment could be sought by the prosecution. 

In Victoria, Mr Al Wah-wah’s actual intent would be the first intention element that would need to be demonstrated to a court.  There is a second intention element in Victoria which would require the prosecution to demonstrate that Mr Al Wah-wah actually knew (to a criminal standard) that it was likely that his conduct would incite hatred and also incite others to threaten physical harm towards Jewish Australians. Proof of incitement requires proof of the effect of the incitement, which is a significant barrier to a successful prosecution.  This double (actually triple) intention element would render prosecution well-nigh impossible, as was the case under the previous law in NSW. 

In terms of penalty, the penalties are the highest in Western Australia, being imprisonment for up to 14 years, and lowest in Victoria, being imprisonment for six months.

In great contrast to the Al Wah-wah incidents and the vilification of Jewish Schoolchildren in Melbourne, on 31 January 2011, Brendan Lee O'Connell, having been tried before a 12-person jury in the Perth District Court, was convicted on six counts under sections 77 and 79 of the Western Australia Criminal Code.  Those sections do not require a prosecutor to prove a link to a threat of physical harm, or an incitement of others to threaten physical harm. O'Connell was sentenced to and served three years in prison.

Clearly, both the Western Australian legislature and the jury in the O'Connell case considered the intentional incitement of racial hatred in public to be sufficient to warrant the imposition of criminal sanction and not merely civil penalties. They did so in the absence of any proof that violence ensued.  They clearly recognised that our social fabric is undermined by the incitement to hatred. 

The Criminal Code of Western Australia (“the Code”) was amended in 2004 by the passing of the Criminal Code Amendment (Racial Vilification) Act.  This is the gold standard in terms of Australian legislation. The intentional offences can be proved even if the proscribed conduct was on the ground of the presumed (as distinct from actual) race of the victim. There also a penalty enhancement regime where race hate is proven to motivate other offences. for other offences.  The legislation was introduced to the Parliament by the Premier of Western Australia, Dr Gallop.  In his Second Reading Speech in support of the legislation, Dr Gallop explained its genesis as follows:

[The legislation] was introduced in response to the activities of the Australian Nationalists Movement… The most recent poster and graffiti campaigns were directed against Western Australians of African, Asian, Arab and Jewish backgrounds.  The firebombing campaign was directed against Chinese restaurants.  It was most reassuring to see the strong community support for the victims of these events.

Dr Gallop identified the deficiencies in the then operative anti-vilification provisions of the Code:

In the past, prosecuting authorities have not utilised the current Criminal Code provisions.  This has been due to difficulties in proving intent and, as the Director of Public Prosecutions has advised, the low criminal penalties that currently exist.  As a consequence, when crimes of racial vilification may have occurred, it has been easier to charge offenders with other offences that either are easier to prove or have higher penalties attached, or both. 

This identification of the problem applies equally in 2020 to the legislation in Victoria.

We commend the Western Australian Criminal Code precedent to the Victorian Parliament.

History has taught us that when vilification and incitement are undeterred, violence too often follows, even if not directly and immediately.  It does not have to be that way.  We should not be defenceless against acts of vilification nor public incitement of racial hatred.  We have a racial vilification law that is not working as intended.  We invite the Parliament to amend to the law so that it can work.                                                     

David D. Knoll AM                                                                   Brian Samuel OAM

Quick guide to comparable criminal law provisions

Victoria ss 24(1)

Victoria ss 24(2)

WA s.77

WA s 78

NSW s93Z

conduct (includes use of the internet or e-mail to publish or transmit statements or other material.)

 conduct (includes use of the internet or e-mail to publish or transmit statements or other material.)

conduct, otherwise than in private (any form of communication with the public or a section of the public or occurs in a public place or in the sight or hearing of people who are in a public place)

any conduct, otherwise than in private (any form of communication with the public or a section of the public or occurs in a public place or in the sight or hearing of people who are in a public place)

by a public act

-       Includes:

-       any form of communication to the public;

-       to the public observable by the public;

-       the distribution or dissemination of any matter to the public

-       even if on private land

intentionally engage in conduct; and

that the offender knows is likely

intentionally engage in conduct; and

that the offender knows is likely

the person intends

is likely

intentionally or recklessly

to incite hatred; and

to threaten, or incite others to threaten, physical harm towards

to incite serious contempt for, or revulsion or severe ridicule of

to create, promote or increase animosity (hatred of or serious contempt for)

to create, promote or increase animosity (hatred of or serious contempt for)

threatens or incites violence 

violence" includes violent conduct and
"violence towards a person or a group of persons" includes violence towards property of the person or a member of the group, respectively

against that other person or class of persons /

or the property of that other person or class of persons

that other person or class of persons

towards, or harassment (threaten, seriously and substantially abuse or severely ridicule) of, a racial group, or a person as a member of a racial group (any group of persons defined by reference to race, colour or ethnic or national origins)

towards, or harassment (threaten, seriously and substantially abuse or severely ridicule) of, a racial group, or a person as a member of a racial group (any group of persons defined by reference to race, colour or ethnic or national origins)

towards another person or a group of persons on any of the following grounds (including race and "religious belief or affiliation" )

race" includes colour, nationality, descent and ethnic, ethno-religious or national origin.

"religious belief or affiliation" means holding or not holding a religious belief or view.

imprisonment for 6 months or 60 penalty units or both

imprisonment for 6 months or 60 penalty units or both

liable to imprisonment for 14 years

liable to imprisonment for 5 years

100 penalty units or imprisonment for 3 years (or both

it is irrelevant whether or not the person made an assumption about the race or religious belief or activity of another person or class of persons that was incorrect at the time that the offence is alleged to have been committed

it is irrelevant whether or not the person made an assumption about the race or religious belief or activity of another person or class of persons that was incorrect at the time that the offence is alleged to have been committed

80F - it does not matter whether a group of persons was a racial group or whether a person was a member of a racial group as long as the accused person believed at the time of the alleged offence that the group was a racial group or that the person was a member of a racial group, as the case may be

80G - genuine academic, artistic, religious or scientific purpose defence

it is irrelevant whether the alleged offender's assumptions or beliefs about an attribute of another person or a member of a group of persons referred to in subsection (1) (a)-(f) were correct or incorrect at the time that the offence is alleged to have been committed

 

 

 

 

it is irrelevant whether or not, in response to the alleged offender's public act, any person formed a state of mind or carried out any act of violence

DDP consent required

DDP consent required

DDP consent required

DDP consent required

DDP consent required

WA Criminal Code

Chapter XI — Racist harassment and incitement to racial hatred

            [Heading inserted: No. 33 of 1990 s. 3.]

    76. Terms used

            In this Chapter —

            animosity towards means hatred of or serious contempt for;

            display means display in or within view of a public place;

            distribute means distribute to the public or a section of the public;

            harass includes to threaten, seriously and substantially abuse or severely ridicule;

            member of a racial group includes a person associated with a racial group;

            publish means publish to the public or a section of the public;

            racial group means any group of persons defined by reference to race, colour or ethnic or national origins;

            written or pictorial material means any poster, graffiti, sign, placard, book, magazine, newspaper, leaflet, handbill, writing, inscription, picture, drawing or other visible representation.

            [Section 76 inserted: No. 33 of 1990 s. 3; amended: No. 80 of 2004 s. 5.]

  1. Conduct intended to incite racial animosity or racist harassment

            Any person who engages in any conduct, otherwise than in private, by which the person intends to create, promote or increase animosity towards, or harassment of, a racial group, or a person as a member of a racial group, is guilty of a crime and is liable to imprisonment for 14 years.

            Alternative offence: s. 78, 80A or 80B.

            [Section 77 inserted: No. 80 of 2004 s. 6; amended: No. 70 of 2004 s. 38(3).] 

    78. Conduct likely to incite racial animosity or racist harassment

            Any person who engages in any conduct, otherwise than in private, that is likely to create, promote or increase animosity towards, or harassment of, a racial group, or a person as a member of a racial group, is guilty of a crime and is liable to imprisonment for 5 years.

            Alternative offence: s. 80A or 80B.

            Summary conviction penalty: imprisonment for 2 years and a fine of $24 000.

            [Section 78 inserted: No. 80 of 2004 s. 6; amended: No. 70 of 2004 s. 38(1) and (3).]    

    79. Possession of material for dissemination with intent to incite racial animosity or racist harassment

            Any person who —

            (a)       possesses written or pictorial material that is threatening or abusive intending the material to be published, distributed or displayed whether by that person or another person; and

            (b)       intends the publication, distribution or display of the material to create, promote or increase animosity towards, or harassment of, a racial group, or a person as a member of a racial group,

            is guilty of a crime and is liable to imprisonment for 14 years.

            Alternative offence: s. 80, 80C or 80D.

            [Section 79 inserted: No. 80 of 2004 s. 6; amended: No. 70 of 2004 s. 38(3).]

    80. Possession of material for dissemination that is likely to incite racial animosity or racist harassment

            If —

            (a)       any person possesses written or pictorial material that is threatening or abusive intending the material to be published, distributed or displayed whether by that person or another person; and

            (b)       the publication, distribution or display of the material would be likely to create, promote or increase animosity towards, or harassment of, a racial group, or a person as a member of a racial group,

            the person possessing the material is guilty of a crime and is liable to imprisonment for 5 years.

            Alternative offence: s. 80C or 80D.

            Summary conviction penalty: imprisonment for 2 years and a fine of $24 000.

            [Section 80 inserted: No. 80 of 2004 s. 6; amended: No. 70 of 2004 s. 38(1) and (3).]

    80A.    Conduct intended to racially harass

            Any person who engages in any conduct, otherwise than in private, by which the person intends to harass a racial group, or a person as a member of a racial group, is guilty of a crime and is liable to imprisonment for 5 years.

            Alternative offence: s. 78 or 80B.

            Summary conviction penalty: imprisonment for 2 years and a fine of $24 000.

            [Section 80A inserted: No. 80 of 2004 s. 6; amended: No. 70 of 2004 s. 38(1) and (3).]  

    80B.    Conduct likely to racially harass

            Any person who engages in any conduct, otherwise than in private, that is likely to harass a racial group, or a person as a member of a racial group, is guilty of a crime and is liable to imprisonment for 3 years.

            Summary conviction penalty: imprisonment for 12 months and a fine of $12 000.

            [Section 80B inserted: No. 80 of 2004 s. 6; amended: No. 70 of 2004 s. 38(2).] 

    80C.    Possession of material for display with intent to racially harass

            Any person who —

            (a)       possesses written or pictorial material that is threatening or abusive intending the material to be displayed whether by that person or another person; and

            (b)       intends the display of the material to harass a racial group, or a person as a member of a racial group,

            is guilty of a crime and is liable to imprisonment for 5 years.

            Alternative offence: s. 80 or 80D.

            Summary conviction penalty: imprisonment for 2 years and a fine of $24 000.

            [Section 80C inserted: No. 80 of 2004 s. 6; amended: No. 70 of 2004 s. 38(1) and (3).]

    80D.    Possession of material for display that is likely to racially harass

            If —

            (a)       any person possesses written or pictorial material that is threatening or abusive intending the material to be displayed whether by that person or another person; and

            (b)       the display of the material would be likely to harass a racial group, or a person as a member of a racial group,

            the person possessing the material is guilty of a crime and is liable to imprisonment for 3 years.

            Summary conviction penalty: imprisonment for 12 months and a fine of $12 000.

            [Section 80D inserted: No. 80 of 2004 s. 6; amended: No. 70 of 2004 s. 38(2).]

    80E.    Conduct and private conduct, meaning of in s. 77, 78, 80A and 80B

            (1)       A reference in section 77, 78, 80A or 80B to conduct includes a reference to conduct occurring on a number of occasions over a period of time.

            (2)       For the purposes of sections 77, 78, 80A and 80B conduct is taken not to occur in private if it —

            (a)       consists of any form of communication with the public or a section of the public; or

            (b)       occurs in a public place or in the sight or hearing of people who are in a public place.

            [Section 80E inserted: No. 80 of 2004 s. 6.]

    80F.    Belief as to existence or membership of racial group

            For the purposes of proceedings for an offence under section 77, 79, 80A, 80C, 313, 317, 317A, 338B or 444 it does not matter whether a group of persons was a racial group or whether a person was a member of a racial group as long as the accused person believed at the time of the alleged offence that the group was a racial group or that the person was a member of a racial group, as the case may be.

            [Section 80F inserted: No. 80 of 2004 s. 6.]

    80G.    Defences to s. 78, 80, 80B or 80D charge

            (1)       It is a defence to a charge under section 78 or 80B to prove that the accused person’s conduct was engaged in reasonably and in good faith —

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

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

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

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

            or

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

            (2)       It is a defence to a charge under section 80 or 80D to prove that the accused person intended the material to be published, distributed or displayed (as the case may be) reasonably and in good faith —

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

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

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

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

            or

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

            [Section 80G inserted: No. 80 of 2004 s. 6.]

    80H.    Consent to prosecution under s. 77, 78, 79 or 80 required

            A prosecution under section 77, 78, 79 or 80 must not be commenced without the consent of the Director of Public Prosecutions.

            [Section 80H inserted: No. 80 of 2004 s. 6.]

    80I.     Term used: circumstances of racial aggravation

            In sections 313, 317, 317A, 338B and 444 —

            circumstances of racial aggravation means circumstances in which —

            (a)       immediately before or during or immediately after the commission of the offence, the offender demonstrates hostility towards the victim based, in whole or part, on the victim being a member of a racial group; or

            (b)       the offence is motivated, in whole or part, by hostility towards persons as members of a racial group.

            [Section 80I inserted: No. 80 of 2004 s. 6.]

    80J.    Unlawful material, forfeiture of

            A court that convicts a person of an offence under section 79, 80, 80C or 80D may make an order for the forfeiture to the State, or the destruction or disposal, of any written or pictorial material in respect of which the offence was committed.

            [Section 80J inserted: No. 59 of 2006 s. 19.]

NSW Crimes Act

CRIMES ACT 1900 - SECT 93Z

93Z Offence of publicly threatening or inciting violence on grounds of race, religion, sexual orientationgender identity or intersex or HIV/AIDS status

(1)       A person who, by a public act, intentionally or recklessly threatens or incites violence towards another person or a group of persons on any of the following grounds is guilty of an offence--

(a)       the race of the other person or one or more of the members of the group,

(b)       that the other person has, or one or more of the members of the group have, a specific religious belief or affiliation,

(c)        the sexual orientation of the other person or one or more of the members of the group,

(d)       the gender identity of the other person or one or more of the members of the group,

(e)       that the other person is, or one or more of the members of the group are, of intersex status,

(f)        that the other person has, or one or more of the members of the group have, HIV or AIDS.

Maximum penalty--

(a) in the case of an individual--100 penalty units or imprisonment for 3 years (or both), or

(b) in the case of a corporation--500 penalty units.

(2)       In determining whether an alleged offender has committed an offence against this section, it is irrelevant whether the alleged offender's assumptions or beliefs about an attribute of another person or a member of a group of persons referred to in subsection (1) (a)-(f) were correct or incorrect at the time that the offence is alleged to have been committed.

(3)       In determining whether an alleged offender has committed an offence against this section of intentionally or recklessly inciting violence, it is irrelevant whether or not, in response to the alleged offender's public act, any person formed a state of mind or carried out any act of violence.

(4)       A prosecution for an offence against this section is not to be commenced without the approval of the Director of Public Prosecutions.

(5)       In this section--
"gender identity" means the gender related identity, appearance or mannerisms or other gender related characteristics of a person (whether by way of medical intervention or not), with or without regard to the person's designated sex at birth.
"intersex status" means the status of having physical, hormonal or genetic features that are--

(a)       neither wholly female nor wholly male, or

(b)       a combination of female and male, or

(c)        neither female nor male.

"public act" includes--

(a)       any form of communication (including speaking, writing, displaying notices, playing of recorded material, broadcasting and communicating through social media and other electronic methods) to the public, and

(b)       any conduct (including actions and gestures and the wearing or display of clothing, signs, flags, emblems and insignia) observable by the public, and

(c)       the distribution or dissemination of any matter to the public.

For the avoidance of doubt, an act may be a public act even if it occurs on private land.
"race" includes colour, nationality, descent and ethnic, ethno-religious or national origin.
"religious belief or affiliation" means holding or not holding a religious belief or view.
"sexual orientation" means a person's sexual orientation towards--

(a)       persons of the same sex, or

(b)       persons of a different sex, or

(c)        persons of the same sex and persons of a different sex.

"violence" includes violent conduct and
"violence towards a person or a group of persons" includes violence towards property of the person or a member of the group, respectively.

Victoria

RACIAL AND RELIGIOUS TOLERANCE ACT 2001 - SECT 8

Religious vilification unlawful

  • A person must not, on the ground of the religious belief or activity of another person or class of persons, engage in conduct that incites hatred against, serious contempt for, or revulsion or severe ridicule of, that other person or class of persons.

Note

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

  • For the purposes of subsection (1), conduct—
  • may be constituted by a single occasion or by a number of occasions over a period of time; and
  • may occur in or outside Victoria.

RACIAL AND RELIGIOUS TOLERANCE ACT 2001 - SECT 9

Motive and dominant ground irrelevant

  • In determining whether a person has contravened section 7 or 8, the person's motive in engaging in any conduct is irrelevant.
  • In determining whether a person has contravened section 7 or 8, it is irrelevant whether or not the race or religious belief or activity of another person or class of persons is the only or dominant ground for the conduct, so long as it is a substantial ground.

RACIAL AND RELIGIOUS TOLERANCE ACT 2001 - SECT 10

Incorrect assumption as to race or religious belief or activity

In determining whether a person has contravened section 7 or 8, it is irrelevant whether or not the person made an assumption about the race or religious belief or activity of another person or class of persons that was incorrect at the time that the contravention is alleged to have taken place.

  1. 11 amended by No. 25/2006 s. 9 (ILA s. 39B(1) 

RACIAL AND RELIGIOUS TOLERANCE ACT 2001 - SECT 11

Exceptions—public conduct

  • A person does not contravene section 7 or 8 if the person establishes that the person's conduct was engaged in reasonably and in good faith—
  • in the performance, exhibition or distribution of an artistic work; or
  • in the course of any statement, publication, discussion or debate made or held, or any other conduct engaged in, for—
  • any genuine academic, artistic, religious or scientific purpose; or
  • any purpose that is in the public interest; or

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

  1. 11(2) inserted by No. 25/2006 s. 9.

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

RACIAL AND RELIGIOUS TOLERANCE ACT 2001 - SECT 12

Exceptions—private conduct

  • A person does not contravene section 7 or 8 if the person establishes that the person engaged in the conduct in circumstances that may reasonably be taken to indicate that the parties to the conduct desire it to be heard or seen only by themselves.
  • Subsection (1) does not apply in relation to conduct in any circumstances in which the parties to the conduct ought reasonably to expect that it may be heard or seen by someone else.

RACIAL AND RELIGIOUS TOLERANCE ACT 2001 - SECT 24

Offence of serious racial vilification

  • A person (the offender) must not, on the ground of the race of another person or class of persons, intentionally engage in conduct that the offender knows is likely—
  • to incite hatred against that other person or class of persons; and
  • to threaten, or incite others to threaten, physical harm towards that other person or class of persons or the property of that other person or class of persons.

 

Note

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

Penalty:     In the case of a body corporate, 300 penalty units;

In any other case, imprisonment for 6 months or 60 penalty units or both.

  • A person (the offender) must not, on the ground of the race of another person or class of persons, intentionally engage in conduct that the offender knows is likely to incite serious contempt for, or revulsion or severe ridicule of, that other person or class of persons.

Note

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

Penalty:     In the case of a body corporate, 300 penalty units;

In any other case, imprisonment for 6 months or 60 penalty units or both.

  • For the purposes of subsections (1) and (2), conduct—
  • may be constituted by a single occasion or by a number of occasions over a period of time; and
  • may occur in or outside Victoria.
  • A prosecution for an offence against subsection (1) or (2) must not be commenced without the written consent of the Director of Public Prosecutions.

RACIAL AND RELIGIOUS TOLERANCE ACT 2001 - SECT 25

Offence of serious religious vilification

  • A person (the offender) must not, on the ground of the religious belief or activity of another person or class of persons, intentionally engage in conduct that the offender knows is likely—
  • to incite hatred against that other person or class of persons; and
  • to threaten, or incite others to threaten, physical harm towards that other person or class of persons or the property of that other person or class of persons.

Note

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

Penalty:     In the case of a body corporate, 300 penalty units;

In any other case, imprisonment for 6 months or 60 penalty units or both.

  • A person must not, on the ground of the religious belief or activity of another person or class of persons, knowingly engage in conduct with the intention of inciting serious contempt for, or revulsion or severe ridicule of, that other person or class of persons.

Note

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

Penalty:     In the case of a body corporate, 300 penalty units;

In any other case, imprisonment for 6 months or 60 penalty units or both.

  • For the purposes of subsections (1) and (2), conduct—
  • may be constituted by a single occasion or by a number of occasions over a period of time; and
  • may occur in or outside Victoria.
  • A prosecution for an offence against subsection (1) or (2) must not be commenced without the written consent of the Director of Public Prosecutions.

RACIAL AND RELIGIOUS TOLERANCE ACT 2001 - SECT 26

Incorrect assumption as to race or religious belief or activity

In determining whether a person has committed an offence against section 24 or 25, it is irrelevant whether or not the person made an assumption about the race or religious belief or activity of another person or class of persons that was incorrect at the time that the offence is alleged to have been committed.

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