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Report of the Inquiry Into Anti‑Vilification Protections

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Report of the Inquiry Into Anti‑Vilification Protections PARLIAMENT OF VICTORIA LEGISLATIVE ASSEMBLY Legal and Social Issues Committee Inquiry into anti‑vilification protections Parliament of Victoria Legislative Assembly Legal and Social Issues Committee Ordered to be published VICTORIAN GOVERNMENT PRINTER March 2021 PP No 207, Session 2018–2021 ISBN 978 1 922425 22 5 (print version), 978 1 922425 23 2 (PDF version) Committee membership CHAIR DEPUTY CHAIR Ms Natalie Suleyman MP Mr James Newbury MP St Albans Brighton Ms Christine Couzens MP Ms Emma Kealy MP Ms Michaela Settle MP Geelong Lowan Buninyong Mr David Southwick MP Mr Meng Heang Tak MP Caulfield Clarinda ii Legislative Assembly Legal and Social Issues Committee About the Committee Functions The Legal and Social Issues Standing Committee is established under the Legislative Assembly Standing Orders Chapter 24—Committees. The Committee’s functions are to inquire into and report on any proposal, matter or thing connected with— • the Department of Health and Human Services • the Department of Justice and Community Safety • the Department of Premier and Cabinet and related agencies. Secretariat Yuki Simmonds, Committee Manager Raylene D’Cruz, Research Officer (until 31 July 2020) Richard Slade, Research Officer (from 9 December 2019) Alice Petrie, Research Officer (from 10 August 2020 to February 2021) Catherine Smith, Administrative Officer (from 18 December 2019 to February 2021) Helen Ross-Soden, Administrative Officer (February 2021) Contact details Address Legislative Assembly Legal and Social Issues Committee Parliament of Victoria Spring Street EAST MELBOURNE VIC 3002 Phone 61 3 8682 2843 Email [email protected] Web https://parliament.vic.gov.au/lsic-la/inquiries/inquiry/982 This report is available on the Committee’s website. Inquiry into anti‑vilification protections iii Contents Preliminaries Committee membership ii About the Committee iii Terms of reference ix Chair’s foreword xi Executive summary xiii Recommendations xxiii Acronyms and terms xxix 1 Introduction 1 1.1 A note about language 3 1.2 Inquiry process 3 1.3 Outline of report 4 2 Context of anti‑vilification laws in Victoria 5 2.1 International law and obligations 5 2.2 Commonwealth regulatory framework 7 2.2.1 Racial discrimination 8 2.2.2 Religious discrimination 10 2.2.3 Criminal offences 12 2.3 Combatting racial hatred and vilification in Victoria 12 2.3.1 Racial and Religious Tolerance Act 2001 (Vic) 12 2.3.2 Other legislative provisions 15 2.3.3 Policies and strategies 18 2.4 Anti‑vilification in other states and territories 21 3 Experiences of vilification among Victorian communities 25 3.1 Experiences of racial and religious vilification 25 3.1.1 Aboriginal and Torres Strait Islander people 27 3.1.2 African Australians 30 3.1.3 COVID-19 32 3.1.4 Muslim community 35 3.1.5 Jewish community 37 3.2 The impact of hate and vilification 39 3.2.1 Mental and physical health 40 3.2.2 Participation in public life 41 3.2.3 Broader societal harms 43 Inquiry into anti‑vilification protections v Contents 3.3 Other forms of vilification 45 3.3.1 LGBTIQ+ community 45 3.3.2 Women 48 3.3.3 Disability 51 3.3.4 Expanding vilification protections 54 3.3.5 Complaints on the basis of more than one attribute 58 4 Preventing vilification in Victoria 61 4.1 The causes of vilification and where it occurs 62 4.1.1 What drives vilification? 62 4.1.2 Where does vilification happen? 65 4.2 Media and political commentary 71 4.3 Combating the risks of vilification 76 4.3.1 School education 78 4.3.2 Community engagement, education and awareness-raising 93 4.4 Preventing harmful events 99 4.4.1 Victorian law 99 4.4.2 Commonwealth law 101 4.4.3 Responses of other jurisdictions 102 5 Civil anti‑vilification protections 105 5.1 Overview 105 5.1.1 Public conduct and private conduct exceptions 106 5.1.2 Complaints and disputes 107 5.2 Utilisation of the Racial and Religious Tolerance Act 2001 (Vic) 109 5.3 Reform of offence provisions 111 5.3.1 High threshold for incitement test 112 5.3.2 Considering the harms of vilifying conduct 118 5.4 Clarifying public conduct exceptions 123 5.4.1 Religious purposes 123 5.4.2 Defining public conduct 126 6 Improving accessibility and enforcement 129 6.1 Improving accessibility to Victoria’s anti‑vilification laws 129 6.1.1 Streamlining anti-discrimination and anti-vilification provisions 132 6.2 Strengthening the Victorian Equal Opportunity and Human Rights Commission’s powers and duties 135 6.2.1 Evolution of the Commission’s powers and functions 138 6.2.2 The power to compel 141 6.2.3 Establishing a positive duty 142 6.2.4 Resourcing 144 vi Legislative Assembly Legal and Social Issues Committee Contents 7 Criminal anti‑vilification protections 147 7.1 Overview 147 7.1.1 Serious vilification offences 148 7.1.2 Alternative offences 153 7.1.3 Role of Victoria Police 155 7.2 Reform of offence provisions 157 7.2.1 Thresholds and elements of the offences 159 7.2.2 Consent from the Director of Public Prosecutions 167 7.2.3 Penalties 168 7.2.4 Conduct 170 7.3 Location of offences 170 7.4 Public display offence 172 7.4.1 Targeted approach 173 7.4.2 Broad approach 174 7.4.3 Carve outs, defences and enforcement 176 7.4.4 International evidence 178 7.4.5 Reform around hateful materials in Victoria 180 7.5 Prejudice‑motivated crime 181 7.5.1 Sentencing Act 1991 (Vic) 182 8 Reporting and data 187 8.1 Challenges around reporting vilification 187 8.1.1 Awareness of protections 188 8.1.2 Onus on individuals 190 8.1.3 Victimisation and other negative consequences 195 8.1.4 Trust and outcome deficits 199 8.2 Victoria Police and reporting 203 8.2.1 Building and re-building trust 203 8.2.2 Prejudice-motivated crime 207 8.3 Third‑party reporting 213 8.4 Data and information sharing 215 8.4.1 Prejudice-motivated crime 217 8.4.2 Vilification incidents 218 9 Online vilification 221 9.1 The digitisation of life 221 9.2 Harmful online conduct and content 224 9.2.1 Risks and harms 224 9.2.2 Experiences of harmful online conduct and content 229 9.2.3 Unique features of the online environment 232 Inquiry into anti‑vilification protections vii Contents 9.3 Responses to harmful online conduct and content 234 9.3.1 Self-regulation 235 9.3.2 Australian measures and laws 241 9.3.3 International responses to harmful online conduct and content 244 9.4 Addressing online vilification in Victoria 246 9.4.1 Positive duty for online vilification 247 9.4.2 The power to compel 248 9.4.3 Online vilification strategy 250 9.5 Addressing online vilification across jurisdictions 250 Appendices A About the Inquiry 255 B Comparative vilification frameworks in Australian jurisdictions 261 C Recommendations from Worklogic’s independent inquiry into Brighton Secondary College 269 viii Legislative Assembly Legal and Social Issues Committee Terms of reference Inquiry into anti‑vilification protections On 12 September 2019, the Legislative Assembly agreed to the following motion: That this house refers, an inquiry into current anti-vilification laws, their possible expansion, and/or extension of protections beyond existing classes to the Legal and Social Issues Committee for consideration and report no later than 1 September 2020.* The Committee should consider: 1. The effectiveness of the operation of the Racial and Religious Tolerance Act 2001 (the Act) in delivering upon its purposes; 2. The success or otherwise of enforcement of the Act, and the appropriateness of sanctions in delivering upon the Act’s purposes; 3. Interaction between the Act and other state and Commonwealth legislation; 4. Comparisons in the operation of the Victorian Act with legislation in other jurisdictions; 5. The role of state legislation in addressing online vilification. 6. The effectiveness of current approaches to law enforcement in addressing online offending. 7. Any evidence of increasing vilification and hate conduct in Victoria; 8. Possible extension of protections or expansion of protection to classes of people not currently protected under the existing Act; 9. Any work underway to engage with social media and technology companies to protect Victorians from vilification. * The reporting date was changed to 1 March 2021. Inquiry into anti‑vilification protections ix Chair’s foreword In 2001, the Victorian Government passed the Racial and Religious Tolerance Act 2001 (Vic) to protect Victorian Aboriginal, multicultural and multifaith communities from vilification and to offer victims a pathway for redress. Unfortunately, as demonstrated in this report, prejudice and hate are still rife in Victoria, and our anti-vilification laws are failing to deliver upon its objectives and purposes. This prompted the initial referral of the Inquiry to the Committee. Throughout the Inquiry, the Committee received firsthand evidence from people about their experiences of vilification. I believe I can speak on behalf of the Committee when I say it was very unsettling to hear how people had been targeted, including children at school. We heard that vilification is common for many Victorians, including those who identify as Aboriginal and Torres Strait Islander, Muslim, Jewish, women, LGBTIQ+ or who have a disability. We heard that vilification and other prejudicial behaviour comes in many forms and is often frequent and repeated. For some groups, it is systemic and inter-generational. Most of us have experienced similar abuse and hate, especially online, and I am aware of how normalised this behaviour has become.
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