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Anti-vilification laws belong in Equal Opportunity Act: LIV

 Anti-vilification laws belong in Equal Opportunity Act: LIV

By Karin Derkley

Discrimination Human Rights 


Anti-vilification legislation should be rolled into the Equal Opportunity Act and the test for vilification changed, the LIV told a Victorian government parliamentary inquiry into the adequacy of current anti-vilification protections last week.

The inquiry by the Legislative Assembly’s Legal and Social Issues Committee is looking at the effectiveness of the Racial and Religious Tolerance Act 2001 and how it might be improved.

"Anti-vilification laws are critical to supporting our human rights culture and they reinforce those community values," LIV Administrative Law and Human Rights Section co-chair Jacinta Lewin told the hearing. "They ensure a set standard of behaviour and expectations and they recognise that hate speech is contrary to the democratic values of Victoria in that it diminishes the dignity and sense of inclusion and belonging that our diversity embodies."

Any new laws to protect people from vilification need to be accessible and effective, she said. "One measure of these laws being accessible is a legal framework that the community is aware of and understands, and is able to use to enforce their rights."

Ms Lewin said it made sense to incorporate such laws into the Equal Opportunity Act, which is “a good piece of legislation that deals with discrimination in Victoria and sets out a number of attributes that operate similarly to the attributes that are suggested in this Bill. They are pieces of legislation that naturally sit alongside each other and would make it easier to be used by the community at large and courts and tribunals."

Such a move would make the Victorian anti-vilification legislation consistent with other jurisdictions "that have their laws sitting within one piece of legislation as a single set of laws that everyone knows they need to refer to," she told the hearing. The Act has already had a significant amount of complaints handling and litigation through VCAT, she said, “so courts are already familiar with the legislation”.

Human Rights Committee member Bill Swannie said the types of harms which vilification cause are similar to the types of harms which discrimination causes. "They could be described as discriminatory harms in the sense that vilification is often experienced by members of minority communities, and that vilification in many of its forms characterises its target as being inferior or subordinate and the effect of vilification comments is to exclude and to marginalise particularly vulnerable groups. So, in that sense vilification protections sit well inside the equal opportunity law."

The LIV has also advocated to replace the current test for vilification which is based on whether the conduct is likely to incite a third party to hatred or serious contempt, with a new test based on whether it is likely to offend, insult, humiliate or intimidate a member of the target group.

Mr Swannie said the test on which the current legislation is based “is practically very difficult for people to prove the incitement requirement because it requires proving the response which is experienced by a third party rather than the target of vilification. That's why we are arguing for a test which focuses on the effect of the speech on the target of the speech.”

Asked by committee members how the legislation should regulate online hate speech, Mr Swannie said the laws should be "platform neutral" and apply to all types of “speech”, whether printed, published, spoken or written – including online.

“This is how similar laws (such as defamation) operate. Although online comments and trolling are now recognised as being particularly harmful, this platform should not be regulated any differently to say newspapers or TV or radio broadcasts. The real difficulty in relation to online comments is identifying the person who made them.”

Legislation should however distinguish between private and public conduct, Mr Swannie said. "It should regulate the harm which is caused by public conduct, but it shouldn't interfere with one-to-one discussion between individuals."

Twenty organisations presented to the committee last week. Among them were the Human Rights Law Centre, the Anti Defamation Commission, the Asylum Seeker Resource Centre, the Victorian Trades Hall Council and GetUp, which argued for stronger anti-vilification laws to stop the rise of hateful conduct in Australia.

In a joint submission, the organisations argued for a new criminal offence for conduct that is intended or is reasonably likely to cause a person to have a reasonable fear for their safety or security of property.

They also called to make it a criminal offence to publicly display vilifying and intimidating materials, including the swastika.

“It’s important that our laws are inclusive and protect the rights of all Victorians no matter where we come from: laws that clearly outline the responsibilities of all of us and that hold those who choose to divide us to account, laws that put an end to increasingly discriminatory discourse," said ASRC director Abiola Ajetomobi.


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