Victoria’s new vilification laws: what are they and why we need them

Victoria has had a Racial and Religious Tolerance Act since 2001, which on face value, is a good thing.

But do you know how many people have been successfully prosecuted under the criminal provisions of this Act? One.

The number who have been successfully prosecuted for antisemitism under the Act? Zero.

In the face of an unprecedented rise in antisemitism in Victoria – documented in the JCCV-CSG Victorian Antisemitism Report – this seems baffling.

The news doesn’t get any better either. The one person who has been convicted under the current laws is known extremist Blair Cottrell, who in 2019 received a $2000 fine for staging and filming a mock beheading to protest the building of a mosque in Bendigo. Despite his conviction, Cottrell has continued to spread racist and antisemitic views, as well as Holocaust denial, as an investigation by The Australian found in July this year.

So not only has it been nearly impossible to secure a prosecution under the existing law, but it has failed to act as deterrent.

In 2019, in widespread acknowledgement of this point, the Victorian Parliament conducted a broad inquiry into anti-vilification laws. Early in 2021, that inquiry reported to Parliament with 36 recommendations, which the Andrews Government supported.

It has taken three and a half years, but the Government has this week introduced the Justice Legislation Amendment (Anti-vilification and Social Cohesion) Bill 2024.

The Attorney-General Jaclyn Symes and her Department did extensive community consultation before drafting this Bill, including with the JCCV. They returned to us a number of times with suggestions, questions and requests for feedback, which have all been willingly provided.          

And the result is a true step in the right direction for Victoria.

On the criminal side, police will have more opportunity to prosecute, with two offences being created, one around incitement and the other around threat of harm or property damage. The penalties have also been increased, with a maximum of three years imprisonment for the incitement offence and five years for the threat offence.

With these changes, we hope it will become more likely that a conviction can be secured for hate crimes and when it is secured, the penalty will be a real deterrent.

The Bill also significantly reforms civil offences – these are matters that an individual can pursue against another person, rather than relying on police. The ability to secure a remedy under these protections is likely to improve with the introduction of a new harm-based protection. Under the current laws, the civil protections cover conduct that is likely to incite hate or ridicule. Under this Bill, civil protections would be extended to cover conduct that is hateful or seriously contemptuous.

Another strength to this Bill is the broader definition of “public conduct” than similar laws, including in NSW (often referred to as section 93Z laws). While the original inquiry urged adoption of the NSW definition of a “public act”, the JCCV advocated for this definition to be expanded to cover conduct that may be public even if it takes place on private land. This could include hate speech or hate crimes that take place in schools or in a workplace.

But there are still a few question marks over the Bill – and the JCCV will be seeking to discuss these with the Attorney-General as Parliament breaks for summer.

These include:

Like many in our community, the JCCV has been frustrated that it has been such an obstacle to use the law to address the rise in antisemitism here in Victoria.

While it has taken far too long, the Parliament has an opportunity to create a new legal regime that does more to protect Jewish Victorians from antisemitism.

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