A critique of this Bill, if it were made fairly, would not conflate vilification with discrimination – a common and misleading theme in opposition. Vilification and discrimination are distinctly different things, with vilification being the worst extreme. Vilification laws deal principally with the incitement of violence and hatred against a class of people, just because of who they are.
Conduct that is likely to insult or offend is not vilification, it is discrimination.
Vilification has a much higher legal threshold than discrimination. Critics have cited section 18C of the federal Racial Discrimination Act as if those laws relate to vilification, but they do not. Conduct that is likely to insult or offend is not vilification, it is discrimination; disappointingly, no article against my Bill has posited an accurate example of vilification – a disingenuously straw man argument. Holly Lawford-Smith’s seeming obsession with pronouns (The Age, 2/10) could never amount to vilification, as an example.
The high legal bar for vilification is born out statistically. In 17 years there have been on average 17 complaints per year of racial vilification and 15 per year of religious vilification in Victoria. Most complaints are dealt with privately under the Victorian Equal Opportunity and Human Rights Commission’s civil dispute resolution powers, generally via mediation. In 17 years there have only ever been three successful cases of vilification at VCAT and only one case of serious vilification prosecuted in the Magistrates Court.
Infrequent prosecution is clear evidence that anti-vilification laws do not stifle free speech. New South Wales, Queensland, Tasmania and the ACT have already extended their anti-vilification laws to include sexuality and/or disability. The NSW government introduced changes of this type only last year, with increased criminal penalties. Personally, I cannot pinpoint the free speech that currently exists in Victoria but has been lost to these other states.
Some naysayers are in a fluster about some wording that has changed in the Bill. In amending the Serious Vilification Offence we have retained the same threshold of “is likely to” that already exists in that law today, but deleted “the offender knows” to bring Victoria into line with every other Australian jurisdiction, where an objective (reasonable person) test is favoured to a subjective test.
To my way of thinking, addressing conduct that “is likely to” incite violence, rather than waiting for a vicious assault to actually happen, makes sense. The most important thing though, is that we extend protections to the classes of vulnerable Victorians who are experiencing vilification.
Like any private member’s Bill, this is a vehicle for change. I am very pleased that the government has acknowledged the need for reform and the desire to find a solution in referring my Racial and Religious Tolerance Amendment Bill 2019 to a Parliamentary Inquiry. That inquiry will resolve the nuts and bolts and I encourage those radical bedfellows to contribute.
Fiona Patten is the Leader of the Reason Party and Member for the Northern Metropolitan Region in the Victorian Parliament. Co-authored with chief of staff Andrew Shears.