Vilification

Contributed by The Victorian Equal Opportunity and Human Rights Commission and current to 15 April 2026.

The Equal Opportunity Act 2010 protects you from vilification, more commonly known as hate speech or hateful behaviour because of your disability, gender identity, race, religious belief, sex, sex characteristics and sexual orientation, or personal association with someone who has one of these protected characteristics. Criminal vilification offences are now in the Crimes Act 1958 .

The Racial and Religious Tolerance Act 2001 (RRTA), operative between 1 January 2002 and 2026, has been repealed by the Justice Legislation Amendment (Anti-vilification and Social Cohesion) Act 2025 .

This chapter contains information about the:

• civil protection
• criminal offences
• repealed Racial and Religious Tolerance Act 2001 (RRTA).

For any vilification claim, the reformed provisions apply to conduct arising on or after 15 April 2026.

Previously, the RRTA was the law that made racial and religious vilification unlawful in Victoria. The RRTA was operative between 1 January 2002 and 14 April 2026 and is relevant to civil claims raised about conduct that occurred within this timeframe. People can continue to bring claims under the repealed RRTA provisions for claims about conduct that happened before 15 April 2026.

Content in this resource regarding the RRTA, for example case law about incitement, may be relevant to claims made under the reforms because many of the same terms from the repealed RRTA are used in the reform provisions

Reforming Victoria's anti-vilification framework and repealing the Racial and Religious Tolerance Act

In 2025, the Victorian Government enacted reform to anti-vilification law in Victoria, becoming fully operative on 15 April 2026.

The reform has been implemented in two stages through the Justice Legislation Amendment (Anti-vilification and Social Cohesion) Act 2025 :

• criminal provisions commenced on 20 September 2025 and moved into the Crimes Act 1958
• civil provisions commenced on 15 April 2026, incorporated into the Equal Opportunity Act 2010 . [AC3]

Moving civil anti-vilification protections into the Equal Opportunity Act puts anti-vilification laws alongside discrimination, sexual harassment and victimisation laws in a single equality framework.

The RRTA has been repealed in its entirety on 15 April 2026, however claims about conduct occurring before that date can still be made under the old RRTA protections outlined below.

These reforms have resulted from extensive consultation with the community. In 2021, the Victorian Parliamentary Inquiry into Anti-vilification Protections examined the operation and effectiveness of the RRTA. This Inquiry heard that vilification is commonly faced by many people in Victoria, including First Nations, Muslim and Jewish people, women, LGBTIQA+ communities and people with disability, and many experience it online. The Inquiry recommended extending anti-vilification law to protect more people and strengthening how the law operates. Following the Inquiry, the government consulted over almost two years to inform the content of the reforms.

In the section on the repealed RRTA below, we have outlined cases under that Act which are relevant to claims made about conduct before 15 April, and are also likely to inform interpretation of the reformed vilification protections.

Overview of the EOA's civil vilification provisions

Two civil vilification protections are part of the Equal Opportunity Act 2010 (Equal Opportunity Act):

• Unlawful vilification (the ‘harm-based’ protection)
• Unlawful vilification – incitement

In Victoria, simply put, vilification can be both encouraging hatred in others (incitement) or engaging in hate speech or hateful behaviour directly toward someone else. The basis for the behaviour must be because of a person’s protected attribute, and the behaviour, whether online, in person, verbal or written, must be public.

A person or group can bring a dispute about vilification to the Commission for dispute resolution or bring an application to the Tribunal.

Legal definitions

Unlawful vilification

This civil protection prohibits public conduct that:

• is engaged in because of a protected attribute of another person or a group, and
• would, in all the circumstances, be reasonably likely to be considered by a reasonable person with the protected attribute to be hateful or seriously contemptuous of, or reviling or severely ridiculing of, the other person or group of persons

This protection is often referred to as a ‘harm-based’ protection. This is because it focuses on the harm that occurs when one party vilifies another, rather than on whether the vilification incites a third-party audience.

Unlawful vilification - incitement

The incitement provision prohibits public conduct that is likely to incite hatred against, serious contempt for, revulsion towards or severe ridicule of, another person or a group of persons on the ground of a protected attribute of that other person or group of persons.

This differs slightly to the previous incitement provision which prohibited conduct inciting hatred against, serious contempt for, or revulsion or severe ridicule of another person or group of persons.

More people are protected from vilification

Previously, the RRTA only prohibited racial and religious vilification, so people vilified for other reasons have not been protected by existing law.

As of 15 April 2026, vilification based on the following protected attributes is prohibited:

People can complain about vilification based on a combination of attributes

The changes to the law clarify that a person can bring a dispute to the Commission or an application to the Tribunal based on one protected attribute or more than one protected attribute and the Explanatory Memorandum to the reforms confirms that the legislative intent is that it be possible to bring a claim of vilification on the basis of a combination of protected attributes (intersectional vilification) (at pages 22 – 24).

This acknowledges the intersectional experiences of vilification that occurs based on multiple protected attributes. For example, a First Nations woman may experience vilification based on an overlapping combination of sex and race.

Public conduct

The civil protections apply to public conduct or conduct observable by the public, including public conduct that occurs online. Conduct that is private, including private conversations, is not captured.

Exceptions

There are exceptions that permit vilification in some circumstances, such as when a person engages in the conduct reasonably and in good faith for any genuine academic, artistic, public interest, religious or scientific purpose.

The exception for any genuine religious purpose under section 102G(1)(b) includes, but is not limited to, worship, observance, practice and teaching. This non-exhaustive definition more closely aligns with the right to freedom of religion and belief under section 14(1)(b) of the Charter of Human Rights and Responsibilities Act 2006 .

Vilification applies to victimisation, authorising and assisting and vicarious liability

Vilification protections also apply to:

• victimisation, meaning that a person must not victimise another person based on that other person making a complaint of vilification
• authorising and assisting, meaning it is against the law to authorise or assist someone to engage in vilification
• vicarious liability, meaning that employers and principals may be vicariously liable if their employees or agents engage in vilification

Representative complaints

Previously, a representative body could only bring a vilification complaint to the Commission on behalf of named people. This may have deterred some people from making a complaint if they were concerned about negative consequences for themselves or their broader community.

Now, a representative body, such as a religious or community organisation, can bring a vilification complaint to the Commission without naming the person they are representing. This means that the Commission will not need to know the identity of that person.

No exemptions from unlawful vilification

The Tribunal cannot grant organisations an exemption from unlawful vilification.

Criminal villification offences in the Crimes Act

As of 20 September 2025, criminal vilification offences have been moved into the Crimes Act 1958 to improve the visibility of these offences and highlight the seriousness of this conduct.

There is now an incitement offence and a threat offence. These offences apply to vilification based on the following protected characteristics: disability, gender identity, race, religious belief, sex, sex characteristics and sexual orientation, or personal association with someone who has one of these protected characteristics.

Please click on the hyperlink criminal vilification offences in the Crimes Act for more information.

Vilification provisions under the Equal Opportunity Act - claims on or after 15 April 2026

The Equal Opportunity Act 2010 has been amended to include civil anti-vilification protections which are operative from 15 April 2026 and the RRTA is repealed.

Claims can still be made about vilifying conduct that has occurred previously under the old law but the reformed law applies to claims about behaviour occurring from April 2026.

The purposes of the EOA under section 1(a)have been enlarged to protect and promote the right to equality by prohibiting vilification of people with a protected attribute.

The right to equality is protected in section 8 of the Charter of Human Rights and Responsibilities Act 2006 . The right to equality, as a person before the law and to enjoy human rights without discrimination is modelled on articles 16 and 32(2) of the International Covenant on Civil and Political Rights, as outlined in the Explanatory Memorandum (page 9).

The Equal Opportunity Act 2010 sets out in Section 102A[KH2] of Part 6A[KH3] that vilification is prohibited.

In section 102A the Parliament sets out some of the reasons for the new vilification protections, recognising:

• the right of all Victorians to be free from vilification and to participate equally in a democratic society.
• that the right to freedom of expression is an essential component of our society and this right should be limited only to the extent that can be justified in an open and democratic society based on human dignity, equality and freedom. The Parliament acknowledges the importance of maintaining the ability to engage in robust discussion reasonably and in good faith on any matter for a genuine academic, artistic, public interest, religious or scientific purpose.
• vilifying conduct is contrary to democratic values, diminishing people’s dignity, self-worth and belonging and can cause profound physical and psychological harm. It also reduces people’s ability to contribute to, or fully participate in, all social, political, economic and cultural aspects of society as equals.
• The enactment of the reforms promotes inherent dignity and promotes our equal participation in public life.

Tests for vilification differ between jurisdictions, but there are common principles.

Other Australian jurisdictions including the Australian Capital Territory, Queensland, Tasmania, Northern Territory and New South Wales have laws prohibiting vilification on a range of listed attributes, however not all Australian jurisdictions offer the same protection. The language used in the Equal Opportunity Act is different to the laws in other jurisdictions so we can draw limited guidance from the laws of those jurisdictions.

Legal protections regarding vilification based on listed attributes are founded in Australia's obligations to promote equality and prohibit discrimination on protected grounds, for example, racial and religious hatred under international conventions including the International Covenant on Civil and Political Rights and the International Convention on the Elimination of All Forms of Racial Discrimination .

In Victoria, the law balances protection from vilification with other human rights, for example, freedom of expression. The right to freedom of expression is protected by the Charter of Human Rights and Responsibilities , which is modelled on article 19 of the International Covenant on Civil and Political Rights, as outlined in the Explanatory Memorandum (pages 13–14). Section 15(2) of the Charter provides that every person has the right to freedom of expression, which includes the freedom to seek, receive and impart information and ideas of all kinds. This right may be subject to lawful restrictions reasonably necessary to respect the rights and reputation of other people and to protect broader society. The right can also be lawfully limited where the limitation is reasonable, necessary, justified and proportionate.

More protected attributes and protection from intersectional discrimination

Previously, the RRTA only prohibited racial and religious vilification, so people vilified for other reasons have not been protected by the previous law.

Now, more people are protected from vilification. Section 102B sets out attributes protected by Part 6A[KH1] of the Equal Opportunity Act—

The definitions section of the EOA – section 4 – has been amended to reflect this change.

These attributes are defined within the EOA, except for ‘sex.'

Historical cases on the meaning of ‘race’ and ‘religious belief or activity’ under the RRTA may assist in cases brought under the reformed civil provisions. Cases under the discrimination provisions of the Equal Opportunity Act will also assist in understanding the scope of the attributes

A person can bring a claim of vilification only if that person:

• has the protected attribute in respect of which the contravention is claimed to have occurred (in other words, if the vilification was about people with disabilities then only a person with a disability, or associated with someone with a disability, can bring a claim); and
• is part of the audience for the conduct that is claimed to constitute the contravention (in other words they saw, viewed online, heard or read the vilification themselves).

The reformed provisions clarify that a person can bring a dispute to the Commission or an application to the Tribunal of a claim of vilification based on one protected attribute, or more than one protected attribute and the Explanatory Memorandum to the reforms confirms that the legislative intent is that it be possible to bring a claim of vilification on the basis of a combination of protected attributes (intersectional vilification):

The Explanatory Memorandum[KH4] to the reforms at pages 22 – 24 acknowledges:

• the intersectional experiences of vilification – for example, an Aboriginal woman may be vilified based on an overlapping combination of both their gender or race
• it gives effect to recommendation 2 of the Inquiry into Anti-vilification Protections which considered that it is important for complaint mechanisms to be able to consider the compounding effects of vilification that occurs based on multiple protected attributes.

Unlawful vilification

People must not engage in public conduct under section 102D that:

• is engaged in because of a protected attribute of another person or a group, and
• would, in all the circumstances, be reasonably likely to be considered by a reasonable person with the protected attribute to be hateful or seriously contemptuous of, or reviling or severely ridiculing of, the other person or group of persons

Whether the conduct is hateful is an objective test – the focus is on a reasonable person from the target group, and whether that reasonable person would think it is hateful.

To be unlawful vilification, the conduct may:

• occur on a single occasion or a number of occasions over a period of time
• occur inside or outside Victoria – though there needs to be a sufficient link to Victoria.

If the conduct is engaged in for 2 or more reasons and one of the reasons is a protected attribute of a person, then the conduct is taken to be engaged in because of the protected attribute. It is not necessary that the protected attribute of a person be the dominant reason or substantial reason for engaging in the conduct (section 102D(3)).

This protection is referred to as the ‘harm-based’ protection. This is because it focuses on the harmful behaviour that occurs when one party vilifies another, rather than when vilification encourages a third-party audience to hate.

This is a shift from the repealed RRTA which has provided in section 9(2) that, in determining whether a person has engaged in vilification, 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.

An example of another ‘harm-based’ provision which applies specifically to racial hatred is the Federal provision set out in Section 18C of the federal Racial Discrimination Act 1975 (Cth) (Racial Discrimination Act). This prohibits racial hatred, rather than racial vilification. It makes unlawful acts that are reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people because of their race, colour or national or ethnic origin. Complaints under the Racial Discrimination Act can be made to the Australian Human Rights Commission.

Unlawful vilification - incitement

The incitement provision in section 102E prohibits public conduct that is likely to incite hatred against, serious contempt for, revulsion towards or severe ridicule of, another person or a group of persons on the ground of a protected attribute of that other person or group of persons.

This differs slightly to the repealed incitement provision which has prohibited conduct that incites hatred against, serious contempt for, or revulsion or severe ridicule of another person or group of persons.

To be unlawful vilification - incitement, the conduct may:

• occur on a single occasion or a number of occasions over a period of time
• occur inside or outside Victoria.

In determining whether there has been incitement, the alleged inciter’s motive in engaging in conduct is irrelevant – section 102E(3).

In determining whether a person has breached sections 102D or 102E, it is irrelevant that the person was incorrect about—

• a protected attribute of the other person or group; or
• whether the other person or group had a particular protected attribute

The caselaw referencing the repealed incitement provision in the section below can continue to provide guidance regarding how the unlawful vilification – incitement provision will be interpreted because this reform provision is similar in its framing.

Public conduct

Unlike discrimination laws, the prohibition on vilification is not limited to conduct in specific areas of public life, such as at work, at school, or in the provision of goods and services. Rather, it applies to any vilifying conduct that happens in public. Vilifying conduct in the street, at a community event or in the media, for instance, is covered.

The prohibition on vilification applies to public conduct as set out in section 102C(1) and (2) of the Equal Opportunity Act 2010.

Public conduct includes—

• 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
• actions and gestures, and the wearing or display of clothing, signs, flags, emblems and insignia, observable by the public; and
• the distribution or dissemination of any matter to the public.

Conduct may be public conduct even if it occurs:

• on private property or land (for example, where vilifying signs on private property are publicly visible); or
• at a place that is not open to the general public (for example, a school or a workplace).

However, a display on a person’s body by means of tattooing or other body modification is not public conduct – section 102(3).

Exceptions

There are exceptions that permit vilification in some circumstances, such as when a person engages in the conduct reasonably and in good faith for a genuine academic purpose.

The exceptions in section 102G are set out as follows:

• A person does not contravene section 102D or 102E if they establish that the 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, discussion or debate made or held, or any other conduct engaged in, for any genuine academic, artistic, public interest, religious or scientific purpose; or
  • in making or publishing a fair and accurate report of any event or matter of public interest.
• A religious purpose includes but is not limited to, worship, observance, practice, teaching, preaching and proselytising that is in conformity with the doctrines, beliefs or principles of that religion.

The public interest exception previously in section 11 of the RRTA was not specifically required to be a genuine public interest purpose.

Please click here to see how exceptions have been applied in previous cases, in the context of the repealed RRTA. The historical case law regarding the interpretation of exceptions under the repealed RRTA may be relevant to some of the current exceptions under the EO Act, where the language of the exception has remained the same.

Victimisation, authorising and assisting and vicarious liability

Victimisation, authorising and assisting and vicarious liability provisions of the Equal Opportunity Act 2010 also apply to vilification protections.

This means that:

• a person must not victimise another person under section 104 (1)(g) and (h)(i) based on that other person:
• making a complaint of vilification;
• bringing a vilification dispute to the Commission for dispute resolution;
• bringing other vilification proceedings against a person
• giving evidence or information connected with any vilification proceedings or an investigation relevant to vilification conducted by the Commission
• attending VCAT compulsory conferences or mediations regarding vilification, or doing anything else in accordance with the EOA.

General information about victimisation can be found here .

• It is against the law under section 105 to authorise or assist someone to engage in vilification.

A person must not request, instruct, induce, encourage, authorise or assist another person to engage in vilification.

General information about authorising and assisting can be found here .

• Employers and principals may be vicariously liable if their employees or agents engage in vilification under section 109(a) and (b).

This provision may apply unless an employer or principal can prove on the balance of probabilities that they took reasonable precautions to prevent the employee or agent contravening this Act.

General information about vicarious liability can be found here .

Repealed Racial and Religious Tolerance Act provisions - claims prior to 15 April 2026

The civil RRTA provisions have been repealed however claims about contraventions that occurred up until April 2026 – before commencement of the reformed provisions – can be brought under the old RRTA provisions, even after the RRTA is repealed.

Under section 7 and section 8 of the RRTA, racial and religious vilification has been defined as the incitement of hatred against, serious contempt for, or revulsion or severe ridicule of a person or class of persons on the grounds of their race or religious belief or activity.

Purpose and objects of the (repealed) Racial and Religious Tolerance Act

The purposes of the RRTA, outlined in section 1 have been:

The objects of the RRTA, set out in section 4(1), have been:

In Victoria, the right to freedom of expression is protected by the Charter of Human Rights and Responsibilities , which is modelled on article 19 of the International Covenant on Civil and Political Rights, as outlined in the Explanatory Memorandum (pages13–14). Section 15(2) of the Charter provides that every person has the right to freedom of expression, which includes the freedom to seek, receive and impart information and ideas of all kinds.

However, under section 15(2) of the Charter, the right may be subject to lawful restrictions if it is reasonably necessary to protect the rights and reputation of other persons, or to protect national security, public order, public health or public morality. It can only be limited if the limitation is lawful, reasonable and proportionate, as detailed at section 7(2).

The preamble to the RRTA has acknowledged 'the importance of freedom of expression, the democratic value of the equal participation of all citizens in society, and the desire of Parliament to support racial and religious tolerance'. It has also highlighted that racial and religious vilification diminishes dignity and sense of self-worth and belonging to the community. Vilification also reduces the ability for people to contribute to, or fully participate in, all social, political, economic and cultural aspects of society as equals. The RRTA has attempted to balance the right to freedom of expression with racial and religious tolerance.

To this end, the RRTA has contained provisions that have:

• made racial vilification (section 7) and religious vilification (section 8) unlawful
• made conduct that is engaged in 'reasonably and in good faith' in an artistic performance, in the public interest, in fair and accurate reporting, or for a genuine academic, artistic, religious or scientific purpose (section 11), and private conduct (section 12) exempt from the definition of unlawful vilification.

Like the Equal Opportunity Act does for discrimination, the RRTA has also:

• made victimisation of a person who makes a complaint of racial or religious vilification or takes specified action under the RRTA unlawful (section 13)
• made authorising or assisting vilification or victimisation unlawful (section 15)
• made an employer or principal vicariously liable for the conduct of an employee or agent who breaches the RRTA (subject to an exception that the employer or principal took 'reasonable precautions' to prevent the breach) (section 17 and section 18)
• provided for dispute resolution by the Victorian Equal Opportunity and Human Rights Commission (the Commission) (under the existing mechanisms for conciliation of complaints under the Equal Opportunity Act) and direct applications to the Victorian Civil and Administrative Tribunal (VCAT) (Part 3).

In addition, the RRTA has provided for civil remedies for a breach of the RRTA (section 23C) and criminalised serious racial and religious vilification (section 24 and section 25).

Unlawful racial and religious vilification under the (repealed) RRTA

The legal test for vilification under the RRTA was framed differently from the ordinary dictionary definition of vilification – to 'speak evil of, defame, traduce'. Rather, the RRTA has prohibited public conduct that incites hatred against, serious contempt for, revulsion or severe ridicule of a person or class of persons on the ground of their race or religious belief or activity.⁽²⁾ The RRTA has been directed at action that moves the emotions of a third party.

The repealed provisions apply to claims involving conduct that occurred before 15 April 2026.

Since the repeal, civil vilification protections have moved to the Equal Opportunity Act and different tests apply to conduct that occurred from 15 April 2026. However the content below regarding the RRTA can still inform the way Courts and Tribunals interpret the reformed vilification provisions.

Please click here for information about the reformed provisions

Repealed vilification test

Section 7 of the RRTA set out the prohibition on racial vilification:

Section 7 and section 8 of the RRTA were drafted in effectively the same terms, except that section 7(1) referred to 'race' whereas section 8(1) referred to 'religious belief or activity'. Cases considering either section have been helpful in interpreting the other. Cases discussing these provisions are set out below.

Meaning of 'race'

The term 'race' was broadly defined in section 3 of the RRTA to include:

As outlined in the Explanatory Memorandum (page 3), this definition replicated the definition of 'race' in section 4 of the Equal Opportunity Act. The definition of 'race' has not been in dispute in any of the cases under the RRTA.

The definition of 'race' has distinguished 'nationality' and 'national origin'. Courts have established national origin is acquired and fixed at birth and incapable of change. Nationality is a matter of citizenship, and a person may acquire a number of different nationalities over the course of a lifetime. See Australian Medical Council v Wilson [1996] FCA 1618, 75; [1996] FCA 1618; (1996) 68 FCR 46]]; see also Miller v Mieson (1991) EOC 92–341.

Courts considering comparable legislation around the world have established 'ethnic origin' includes:

• Jews in Australia.
  See Miller v Wertheim [2002] FCAFC 156; (2002) EOC [93–223]⁽³⁾
• Jews in New Zealand.
  See King-Ansell v Police [1979] 2 NZLR 531.
• Sikhs in the United Kingdom.
  See Mandla (Sewa Singh) v Dowell Lee [1982] UKHL 7.
• Romani or Traveller people in the United Kingdom.
  See Commission for Racial Equality v Dutton [1989] QB 783; [1988] EWCA Civ 17; [1989] IRLR 8.

Meaning of 'religious belief or activity'

The term 'religious belief or activity' has been defined in section 3 of the RRTA as:

As outlined in the Explanatory Memorandum (page 3), this definition replicated the definition of 'religious belief or activity' in section 4 of the Equal Opportunity Act, which also refers to a 'lawful religious belief' (that is, a religious belief or activity that is not contrary to the law).

In Fletcher v Salvation Army [2005] VCAT 1523 VCAT referred to Sir John Latham's observation in the context of section 116 of the Commonwealth Constitution:

The term 'religion' was not defined in the RRTA and no single legal definition of the term has been developed. However, in Church of the New Faith v Commissioner of Pay-Roll Tax (Vic) [[http://www9.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/1983/40.html][(1983) [1983] HCA 40; 154 CLR 120]] (Scientology Case), Chief Justice Mason and Justice Brennan held for the purposes of the law, the criteria for religion are twofold:

Justices Wilson and Deane considered there was 'no single characteristic' that constituted a 'formularized legal criterion, whether of inclusion or exclusion, of whether a particular system of ideas and practices constitutes a religion' [17]. Their Honours considered the following factors helpful but not determinative of whether a collection of ideas or practices should be characterised as a 'religion':

In the Scientology Case, the High Court held the beliefs, practices and observances of the Church of Scientology constituted a religion for the purposes of the Pay-Roll Tax Act 1971 (Vic) .

This case has been followed in a number of other cases in relation to the interpretation of anti-discrimination and migration legislation. See, for example, OV v QZ [No 2] [2008] NSWADT 115(Anti-Discrimination Act 1977(NSW) s 56); Dixon v Anti-discrimination Commissioner of Queensland [2004] QSC 58( _Anti-Discrimination Act 1991 (Qld) s 7(1)_ );NAVZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 13(Migration Act 1958(Cth)).

Meaning of 'incite' and 'vilification'

The test for unlawful vilification under the RRTA focused exclusively on the effect of conduct on the particular audience that was exposed to it – that is, whether a third party was incited to hatred or other relevant emotions. It is irrelevant what motivated the respondent to engage in the conduct or whether the conduct was offensive.

As explained by Justice of Appeal Nettle in the leading Victorian RRTA case, Catch the Fire Ministries Inc v Islamic Council of Victoria Inc [2006] VSCA 284 (Catch the Fire Ministries):

The court accepted the word 'incites' should be interpreted in accordance with its plain and ordinary meaning – to urge, spur on, stir up, animate or stimulate (Nettle JA [14], Neave JA [159]).

The court also confirmed the threshold for contravening the RRTA is high – the alleged conduct must incite 'extreme responses' [34], [173]. Conduct that is merely critical, offensive or insulting will not amount to unlawful vilification.

In Fletcher v Salvation Army [2005] VCAT 1523 VCAT interpreted the word 'incites' to include conduct that 'inflames' or 'sets alight' [5].⁽⁵⁾ It noted:

Assessing conduct 'as a whole'

To determine whether conduct 'incites' for the purposes of the RRTA, the conduct must be assessed 'as a whole'. Catch the Fire Ministries centred around statements made by a pastor about Muslim people, their beliefs and practices. Justice of Appeal Nettle found it was relevant to consider whether the pastor's encouragement to his audience to love and to 'witness to' Muslims would have prevented the seminar as a whole from inciting hatred by non-Muslims towards Muslims. His Honour stated the correct test was whether the seminar or statements 'as a whole' incited hatred of Muslims based on their religious beliefs [79]. Justice Neave also considered the seminar audience was likely to be affected by the overall impression created by the presentation, rather than having the opportunity to undertake a detailed textual analysis' of it [191]–[192]. Justice Ashley agreed the meaning of a publication (including orally) should be determined by 'consideration of its entirety rather than by discrete examination of its component parts' [132].

The balance and accuracy of statements

In Catch the Fire Ministries, the majority of the Supreme Court of Appeal found the balance and accuracy of statements does not determine whether those statements were likely to incite hatred or other relevant emotions.(1) Justice Nettle explained:

In Australian Macedonian Advisory Council Inc v LIVV Pty Ltd t/a Australian Macedonian Weekly [2011] VCAT 1647 (Australian Macedonian Advisory Council) VCAT found it 'is not for this Tribunal to determine whether the acts complained of in the article are an accurate recounting of history; the truth or otherwise of what might be seen as extreme allegations is of little relevance' [63].

The relevant audience

In determining whether conduct 'incites' hatred or other relevant emotions for the purposes of the RRTA, the nature of the relevant audience must be considered [45].(2)

Justice Nettle observed in Catch the Fire Ministriesthat:

The Court of Appeal adopted a different approach. Justice of Appeal Neave (Justice Ashley agreeing) said it is necessary to 'consider the effect of the words or conduct on an 'ordinary' member of the class to which it is directed, taking into account the circumstances in which the conduct occurs' [158]. This is because it may be inappropriate to import an element of reasonableness when assessing vilifying conduct. Justice Nettle, on the other hand, considered the test should be applied with reference to the 'perception of a reasonable member of the class of persons to whom conduct is directed' (emphasis added).

The 'ordinary member' test set out by Justice Neave in Catch the Fire Ministries has been adopted in a number of later cases, including by the New South Wales Court of Appeal in Sunol v Collier [No 2] [2012] NSWCA 44. (Bathurst CJ [33]–[34]). Also see, for example, Bennett v Dingle [2013] VCAT 1945 [38] and Australian Macedonian Advisory Council Inc v LIVV Pty Limited [2011] VCAT 1647 [65].

In Bennett v Dingle [2013] VCAT 1945 VCAT considered the nature of the relevant audience in relation to a complaint of religious vilification. The respondent made comments to the Jewish complainant while they were each walking their dogs at a local park. Applying the 'ordinary member' test, VCAT noted the complainant might be seen as the entire audience because the words were directed to him (despite the comments also being overheard by his friend). If the friend constituted the entire audience, it is unlikely that he would have been 'incited' because of his 'particular characteristic as a friend' of the complainant [42]. VCAT assumed the relevant audience was 'the ordinary member of the class of persons being non-Jewish members of the public present in the park when the words were uttered' [43]. Given the possible breadth of this class, VCAT noted 'consideration might be given to how any ordinary (not necessarily reasonable) person might perceive the words uttered' [43]. VCAT concluded even on a generous interpretation of who comprised the audience (that is, anyone in the park), it was doubtful that 'the ordinary non-Jewish person would perceive the words as going beyond venting' between the parties (particularly when the words were directed to the complainant) [45].

In Australian Macedonian Advisory Council , an article was published in the Australian Macedonian Weekly titled 'Who in this celestial world gave the Greeks the right to take away the Macedonian language'. VCAT found the article was incapable of inciting hatred because it was 'preaching to the converted' [68]. VCAT emphasised even though the article was published on the respondent's website, it was unlikely to be accessed by the public at large or by people who did not read the Macedonian language. VCAT concluded:

Although VCAT found the article was an 'intemperate and (in many parts) hyperbolical rant' [62], it was not persuaded it breached the RRTA. This approach, however, was not followed in later decisions under the RRTA.

Other standards applied by courts and tribunals (but not necessarily followed) include the:

• 'ordinary reasonable reader'.
  See National Italian Australian Foundation v Herald and Weekly Times and Andrew Bolt [2005] VCAT 2704, approving the standard set out in Kazak v John Fairfax Publications Limited [2000] NSWADT 77. The standard is borrowed from defamation law, where an ordinary reasonable reader is a 'person of fair intelligence who is not perverse, morbid, suspicious of mind or avid for scandal'. However, the application of this standard in the context of anti-vilification legislation was rejected in Catch the Fire Ministries Inc v Islamic Council of Victoria Inc [2006] VSCA 284 and Sunol v Collier [No 2] [2012] NSWCA 44
• 'ordinary and reasonable member of the public'. See Sunol v Collier [No 2] [2012] NSWCA 44 [61] (Allsop J)
• 'ordinary person'. See Kahlil v Sturgess [2005] VCAT 2446; Fletcher v Salvation Army [2005] VCAT 1523
• 'reasonable and objective recipient'. See Judeh v Jewish National Fund of Australia [2003] VCAT 1254.

Proof of a breach

In Catch the Fire Ministries , Justices' Nettle and Neave agreed conduct can be found to 'incite' hatred or other relevant emotions without proof that hatred against, serious contempt for, or revulsion or severe ridicule of, that person or class of persons actually occurred [14], [154], [160].

In other words, the inciting conduct does not have to 'succeed' in provoking a particular response for there to be a breach of section 8 [154]. Rather, a breach may occur if the words or conduct are 'capable of causing' that response or have the 'tendency to incite' that response [160] (approved in Australian Macedonian Advisory Council Inc v LIVV Pty Limited [2011] VCAT 1647 [65]).

This view has been followed in later cases including Sunol v Collier [No 2] [2012] NSWCA 44 [29]and Australian Macedonian Advisory Council [2011] VCAT 1647 [65].

In Unthank v Watchtower Bible and Tract Society of Australia [2013] VCAT 1810 a former Jehovah's Witness made a complaint about an article published in Watchtower that stated 'apostates are mentally diseased'. Although VCAT noted a casual reader might regard the language as 'hateful' or 'spiteful', the application was dismissed on the basis that there was no evidentiary basis for a finding of incitement (Deputy President, McKenzie [24]).

Motive and the meaning of 'on the ground of'

Under the RRTA, the court or tribunal must be satisfied the respondent engaged in conduct that incited hatred or other relevant emotion 'on the ground of' the race or religious belief or activity of a person or a group of persons. Section 9(1) of the RRTA confirms that in determining this, the respondent's motive for engaging in conduct is irrelevant. In Judeh v Jewish National Fund of Australia [2003] VCAT 1254 VCAT held the words 'on the ground of' require that race be 'an actuating or moving factor in the mind of the person who engages in the conduct' [38]. However, this position has not been reflected in later cases.

In Catch the Fire Ministries , the Victorian Court of Appeal found the words 'on the ground of' focus on whether the audience was incited to hatred or other relevant emotion based on religious belief or activity. Justice Nettle found for the purposes of section 8, conduct must incite hatred or other relevant emotion towards a person or group of persons that is based on their religious beliefs. It is irrelevant what moves or actuates the conduct [24]. In doing so, Justice Nettle approved the majority reasoning in [[http://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/1991/49.html][Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349]]_, that reading in a causal link would impede the attainment of the objects in section 17(1) of the _Equal Opportunity Act 1984 .

Although Justices' Neave and Ashley both agreed with the approach set out by Justice Nettle, both had doubts based on the tension between sections 9(1) and 9(2). These sections provide it is irrelevant whether or not the race or religious belief or activity of a person is the only or dominant ground for the conduct, so long as it is the substantial ground.

Justice Neave noted requiring religious belief or activity to be at least a 'substantial ground' for an inciter's conduct, supports a construction of section 8 that requires a link between religious belief and the motivation of the inciter ( Catch the Fire Ministries [149]). It also mirrors anti-discrimination legislation that prohibits discrimination based on particular characteristics and are intended to provide a remedy for people discriminated against on a prohibited ground, even if the discrimination was not based solely on that ground.

Justice Ashley stated section 9(2) 'read naturally' requires race or religious belief to be associated with the 'ground for the conduct'. However, his Honour preferred to follow section 9(1), which clearly states a person's motivation for engaging in conduct is irrelevant [131].

Justice Nettle's approach in Catch the Fire Ministries was followed by VCAT in Australian Macedonian Advisory Council [2011] VCAT 1647. VCAT agreed the phrase 'on the ground of race' does not refer to the ground that caused the alleged inciter to act. It considered it refers to the ground on which people exposed to the alleged inciter's words were incited to hatred or other relevant emotion against another person or group [65].

Successful claims under the (repealed) RRTA

There have only been three successful civil cases of vilification under the RRTA. Please note that there are offensive references in the examples below.

There have been three cases of criminal vilification pursued by Victoria Police. However _Cottrell v Ross [2019] VCC 2142_ was the only successful prosecution. See further discussion about this case in the 'Criminal vilification offences' section.

Conduct found not to have breached the (repealed) RRTA

Conduct found not to breach the RRTA includes:

• an article in a Jehovah's Witness publication that stated 'apostates are mentally diseased'.
  See Unthank v Watchtower Bible and Tract Society [2013] VCAT 1810
• a comment made at a public park that the complainant was a 'big fat Jewish slob' and 'Hitler was right about you bastards'.
  See Bennett v Dingle [2013] VCAT 1945
• a newspaper advertisement with a map of Israel that did not refer to Palestine.
  See Judeh v Jewish National Fund of Australia [2003] VCAT 1254 [44]
• an article criticising the Italian government that stated '[t]he Italian Government did what we imagine Italians do and panicked'.
  See National Italian Australian Foundation v Herald and Weekly Times Pty Ltd [2005] VCAT 2704 [25]
• an article on the front page of a newspaper stating 'Islam must change'.
  See Sisalem v The Herald & Weekly Times Ltd [2016] VCAT 1197
• an article in a Slav-Macedonian newspaper titled 'Who in this celestial world gave the Greeks the rights to take away the Macedonian language?'
  See Australian Macedonian Advisory Council Inc v LIVV Pty Limited [2011] VCAT 1647
• statements made during a prison course on Christianity that offended a man who claimed to be a traditionalist witch and a Wiccan.
  See Fletcher v Salvation Army [2005] VCAT 1523.
• a t-shirt with the words 'Tony Abbott – get your rosaries off my ovaries'.
  See Francis v YWCA Australia [2006] VCAT 2456.

Ultimately, whether conduct breaches the RRTA depends on all the circumstances of the case.

Exceptions under the (repealed) RRTA

Page 6 of the Explanatory Memorandum to the RRTA included exceptions that are designed to strike a balance between freedom of speech and freedom from racial and religious vilification. The exceptions have applied to private conduct and to certain public conduct engaged in 'reasonably and in good faith'. These exceptions are discussed below.

Public conduct exceptions

The public conduct exceptions are contained in section 11 of the RRTA:

Section 11(2) was added to the RRTA(3) after the decision in Fletcher v Salvation Army [2005] VCAT 152. In that case, VCAT found a genuine religious purpose may include asserting that a particular religion or no religion was the 'true way' and any other way is false [9].

Reasonably and in good faith

In Catch the Fire Ministries , the Court of Appeal considered the meaning of the words 'reasonably and in good faith' for the purposes of section 11(1) of the RRTA.

Justice Nettle found whether conduct was engaged in 'reasonably' must be assessed according to the objective standard of a reasonable person who is a member of an open and just multicultural society (that is, a 'moderately intelligent' and 'tolerant' society). His Honour noted this assessment is not always easy:

Justice Nettle also commented:

In relation to the 'reasonableness' requirement, Justice Neave noted the RRTA 'reflects the policy judgment that those who derive benefits from living in a society in which they can express their own views about religion must also accept some limits on that freedom' [197].

Justice Nettle also found whether conduct was 'in 'good faith' will depend on whether the respondent's subjective honest belief was that the conduct was necessary or desirable to achieve a genuine academic, artistic, religious or scientific purpose [92].

Artistic work

The courts have not considered the provision of the RRTA relating to artistic work in section 11(1)(a).

Section 11(1)(a) is identical to section 18D of the Racial Discrimination Act, which was considered in Bropho v Homan Right and Equal Opportunity Commission [2004] FCAFC 16. In that case, a cartoon appearing in the Western Australian newspaper portrayed the recovery of the head of a Western Australian Aboriginal leader who was said to have died at the hands of young colonial settlers. The cartoon suggested an unseemly desire on the part of some of them to take advantage of public funding to travel to England. The Federal Court held the cartoon fell within the exception in section 18D [104], [111]. Justice French and Justice Carr (Justice Lee dissenting) held rather than being read as an exception to section 18C (which was in effect an exception to the right to free speech), section 18D should be considered as limiting the proscription of section 18C and as such, should be read broadly [72]–[73] (French J).

The Federal Court's reasoning in Bropho was followed by the Federal Magistrates Court in _Kelly-Country v Beers [2004] FMCA 336_ . The magistrate found the respondent's stand-up comedy performances in the character of a fictional Aboriginal person constituted 'artistic work' within the meaning of section 18D of the Racial Discrimination Act. He found they had come about as the result of a 'creative process' and 'the application of Mr Beers' imagination' [121] (Brown FM). The Magistrate also noted the Explanatory Memorandum specifically refers to 'comedy acts' as an artistic work

Genuine academic, artistic, religious or scientific purpose

Section 11(1)(b) of the RRTA was considered by the Court of Appeal in Catch the Fire Ministries . In that case, Justice Nettle stated the question to be asked is whether a person's conduct was engaged in reasonably and in good faith, for a genuine academic, artistic, religious or scientific purpose [89].

Justice Nettle set out (in [89]–[96], [197]) the following test for section 11(1)(b):

• identify the respondent's purpose for engaging in the conduct. If there was more than one purpose, what was the dominant purpose?
• determine whether the dominant purpose was an academic, artistic, religious or scientific purpose (the relevant purpose)
• if yes, determine whether the relevant purpose was a genuine academic, artistic, religious or scientific purpose (that is, whether the relevant purpose was 'truly' the purpose for engaging in the conduct)
• if yes, determine whether the respondent engaged in the conduct 'reasonably and in good faith' for a genuine relevant purpose. [92]

Fair and accurate report of any event or matter of public interest

Section 11(1)(c) of the RRTA was identical to section 18D(c)(i) of the Racial Discrimination Act. Cases under the federal law help interpret the application of section 11(1)(c).

In Creek v Cairns Post Pty Ltd [2001] FCA 1007; (2001) 112 FCR 352 the Federal Court considered defamation law provides useful guidance on the meaning of a 'fair and accurate report' for the purposes of section 18D(c) of the Racial Discrimination Act:

The courts have looked at whether the specific facts relied on as the basis of a comment are true, to assess whether the exception can be relied on. See Eatock v Bolt [2011] FCA 1103; (2011) 197 FCR 261.

Private conduct exception

Section 12 of the RRTA included the following exception for private conduct:

The Explanatory Memorandum clarified that the onus was on the person who claimed the exception to prove the exception applies.

In Bennett v Dingle [2013] VCAT 1945 VCAT found the exception did not apply to a 'heated exchange' between the parties while they were walking their dogs. This was because 'the words were said in a public park … there were other people in the vicinity, although they may not have been very close by' [34].

In Khalil v Sturgess [2005] VCAT 2446 although not expressly discussed in the context of section 12, VCAT found the vilifying comments were made 'in a location and loudly enough that … they were intended to be heard not just by the Khalils but by any neighbour or member of the public in the vicinity' [51].

See also Rae v Commissioner of Police, New South Wales Police Force [No 2] [2010] NSWADT 36 [51]. In that case, the vilifying comments were made while the parties were in their respective gardens, driveways, and on the lake at the back of their properties.

Cases under the Racial Discrimination Act have also provided useful guidance on the type of conduct that is likely to amount to 'private' conduct under the RRTA.

Section 18C of the Racial Discrimination Act prohibits certain behaviour done 'otherwise than in private'. Section 18C(2) provides that an act is taken not to be done in private if it is done in a public place, if it is done in the sight or hearing of people who are in a public place, or if it causes words, sounds, images or writing to be communicated to the public. The Act also defines a 'public place'.

In McLeod v Power [2003] FMCA 2 Federal Magistrate Brown found that to establish that an act was done 'otherwise than in private', the complainant must do more than establish that an act occurred in a public place [50]. As noted by the Magistrate, a 'private conversation does not become a public one merely because it takes place in a public street or in a place to which members of the public have a right to admission or access'.

Similarly, in Gibbs v Wanganeen [2001] FMCA 14 Federal Magistrate Driver considered the quality of a conversation between a prisoner and a prison guard:

Gibbs v Wanganeen is sometimes cited for what is described as a 'within earshot' test.⁽⁹⁾ A similar test was applied in McMahon v Bowman [2000] FMCA 3 in which the Federal Magistrates' Court found:

The 'within earshot' test has not been interpreted by VCAT in the context of the RRTA. However, as discussed above, VCAT has found the private conduct exception did not apply in circumstances where the words were spoken in a 'clearly audible voice' in a public park ( Bennett v Dingle [2013] VCAT 1945) or in a location and loudly enough that they were intended to be heard by any neighbour or member of the public in the vicinity ( Kahlil v Sturgess [2005] VCAT 2446).

Dispute resolution of vilification complaints

The dispute resolution process conducted by the Commission under the Equal Opportunity Act 2010 applies to complaints of vilification made under the reformed and repealed anti-vilification provisions.

Dispute resolution under the Equal Opportunity Act is discussed in more detail in the chapter on Resolving disputes.

Bringing a dispute to the Commission

Who can bring a complaint of vilification under the EOA?

Under section 113(1)(a)of the Equal Opportunity Act 2010, the following people can bring a dispute to the Commission for an alleged breach of the vilification provisions:

• a person who claims that another person has unlawfully vilified them;
• if that person is unable to bring a dispute because of a disability (as defined in the Equal Opportunity Act) – a person who is authorised to do so on their behalf, or if that person is unable to authorise another person, any other person;
• if that person is a child – the child, a parent, or (if the Commission is satisfied the child or a parent consents), any other person.

A representative body can also bring a dispute to the Commission. This can occur even if the Commission does not know the identity of the person or people subjected to vilification as long as the Commission is satisfied of all requirements in section 114 (section 114A).

Under section 113(5) the alleged vilification does not have to relate exclusively to the person bringing the dispute.

Disputes can be brought against individuals of any age, corporations and unincorporated associations.

Complaints by representative bodies on behalf of named people

Under section 114, complaints can be made by a representative body on behalf of a named person or persons if the dispute is regarding a claimed breach of the vilification provisions set out in Part 6A and the Commission is satisfied of all of the following requirements:

• each person is entitled to bring a dispute and
• each person has consented to the dispute being brought on their behalf and
• the representative body has a sufficient interest in the dispute as set out in section 114(2)[KH3] – the conduct is a matter of genuine concern to the body because of the way it adversely affects or has the potential to adversely affect the interests of the body or the interests or welfare of the persons it represents.

If the dispute is brought on behalf of more than one person, the breach must arise from the same conduct.

Complaints by representative bodies on behalf of un-named people

The law regarding the ability of representative bodies to make vilification complaints has changed to allow a representative body to bring a vilification complaint to the Commission without naming the person they are representing.

Under section 114A, a representative body may bring a dispute to the Commission for dispute resolution on behalf of an unnamed person or persons if the Commission is satisfied that the requirements of section 114A(1)(a)–(b) regarding a claim under Part 6A are met:

• each person is entitled to bring a dispute and
• each person has consented to the dispute being brought on their behalf and
• the representative body has a sufficient interest in the dispute as set out in section 114(2)

If the dispute is brought on behalf of more than one person, the breach must arise from the same conduct.

The Commission may be satisfied about these requirements even if the Commission does not know the identity of the person or people in the claim.

However people do need to be named for any matter brought to VCAT and most VCAT files – hearings and decisions are open to the public and media. However, applicants who file a claim at VCAT can apply for confidentiality. Depending on the circumstances, VCAT can protect filed information.

Complaints by representative bodies under the (repealed) RRTA

The repealed RRTA did not allow a representative body to bring a claim about an un-named person.

Section 20(1) of the RRTA has set out that a representative body may bring a dispute to the Commission on behalf of a named person or persons if the Commission is satisfied:

• each person is entitled to bring a dispute under section 19(1)(a)
• each person has consented to the dispute being brought by the body on the person's behalf
• if the dispute is brought on behalf of more than one person, the alleged breach arises out of the same conduct.

As outlined in section 20(2), the representative body must also have had a 'sufficient interest' in the dispute. That is, the conduct in question must be a matter of genuine concern to the body because of the way conduct of that nature adversely affects, or has the potential to adversely affect, the interests of the body or the interests or welfare of the persons it represents. Examples of when a representative body has had sufficient interest under the RRTA include:

• a religious organisation.
  See Ordo Templi Orientis v Legg [2007] VCAT 1484 [15]
• an organisation based on nationality.
  See Australian Macedonian Advisory Council Inc v LIVV Pty [2011] VCAT 1647 [37].

Dispute resolution at the Commission

The Commission conducts dispute resolution for complaints through a voluntary, confidential, free and impartial conciliation process. A conciliator assists parties to explore resolution with the aim of achieving a mutually agreeable outcome. Conciliation can be explored in a variety of ways that suits the type of the dispute and the needs of the parties.

Please note that the following examples of resolved matters contain references to highly offensive racist language and conduct.

Examples of conciliated outcomes at the Commission include the following:

• The complainant joined an online social media group and a member posted comments which they alleged were religious vilification. The member who posted the comment was named as the respondent. The respondent provided the complainant with a written apology.

• The complainant alleged racial and religious vilification by a newspaper that allegedly published statements that were sensitive to the Jewish community and were disparaging towards Jewish business and community figures. The matter was resolved with an apology.

• The complainant alleged his neighbour racially vilified him for being of Middle Eastern descent by verbally abusing his family daily. The complainant feared for his family's safety. The matter was resolved through an undertaking by the respondent to cease the behaviour.

• The complainant, a man of Indian descent, was involved in a minor car accident. He alleged when he asked for the other driver's details, the driver refused and threatened to kill him and crack his head open. The matter was resolved with a written apology and compensation.

• The complainant alleged he was racially vilified at work when co-workers referred to him as a 'gook', 'slope head' and 'rice eater'. He complained to his supervisor that he did not like being spoken to in this way and the supervisor laughed at him and the vilification continued. The employer, supervisor and two co-workers were named as respondents. The matter was resolved for compensation.

• The complainant, of Sudanese descent, alleged his adult neighbour had for many years called out to his family that they were dirty pigs, animals and stupid. This led to the neighbour's children disrespecting his family in a similar manner. The complainant felt his life and that of his family became one of fear, discomfort and distress. The matter was resolved by the parties agreeing to refrain from engaging in negative behaviour toward each other and to treat each other in a civil and respectful manner.

Applications to VCAT

Applications to VCAT - conduct occurring on or after 15 April 2026

Under section 122 of the Equal Opportunity Act 2010, a person may apply directly to VCAT alleging a breach of the vilification provisions whether or not that person has attempted dispute resolution at the Commission.

The same persons and representative bodies can bring an application to VCAT as those permitted to bring a dispute to the Commission.

What may the Tribunal decide?

If VCAT finds a person has engaged in unlawful vilification or unlawful vilification - incitement, it can make one or more of the following orders under section 125(a):

• an order that the person refrain from committing any further breaches
• an order that the person pay to the complainant, within a specified period, an amount VCAT thinks fit to compensate the complainant for loss, damage or injury suffered in consequence of the breach
• an order that the person do anything specified in the order with a view to redressing any loss, damage or injury suffered by the complainant as a result of the breach.

Examples of orders that the Tribunal may make are included in s 125(a), such as:

• an order that the person publish an apology or retraction.
• an order that the person develop or implement a program, or policy or training.
• an order that the person remove material from an online publication.

If a person fails to comply with an order of VCAT, the Commission may apply to enforce the order on behalf of the complainant (section 126)

Civil remedies for vilification are the same as the remedies available for discrimination or sexual harassment.

Remedies and costs are discussed in more detail in the chapter on Remedies for discrimination[KH2] .

RRTA applications to VCAT - conduct occurring prior to 15 April 2026

Under section 23 a person may apply directly to VCAT alleging a breach of Part 2 of the RRTA (Unlawful conduct), whether or not that person has attempted dispute resolution at the Commission.

The same persons and representative bodies can bring an application to VCAT as those permitted to bring a dispute to the Commission – namely, those persons who are alleging racial or religious vilification against themselves or on behalf of another person or group of persons (see section 23A and section 23B).

Civil remedies under the (repealed) RRTA

Under section 23C if VCAT finds a person has breached the RRTA, it can make one or more of the following orders:

• an order that the person refrain from committing any further breaches of the RRTA
• an order that the person pay to the complainant, within a specified period, an amount VCAT thinks fit to compensate the complainant for loss, damage or injury suffered in consequence of the breach
• an order that the person do anything specified in the order with a view to redressing any loss, damage or injury suffered by the complainant as a result of the breach.

If a person fails to comply with an order of VCAT, under section 23D the Commission may apply to enforce the order on behalf of the complainant.

Civil remedies under the RRTA are the same as the remedies available under the Equal Opportunity Act section 125(a). Remedies and costs are discussed in more detail in the chapter on Remedies for discrimination.

Examples of remedies under the (repealed) RRTA

The following remedies have been ordered under the RRTA:

• In Kahlil v Sturgess [2005] VCAT 2446 VCAT ordered the respondents to publish a formal apology in the Herald Sun and pay the complainants compensation totalling $7,000 for loss, damage or injury suffered. In doing so, VCAT took into account 'the very serious and persistent nature of the respondents' abuse, the need not to trivialise what has happened, the objectives of the Act including to promote participation in a multicultural society, and the great disruption and humiliation caused to the complainants by the conduct of the respondents' [58].

• In Ordo Templi Orientis v Legg [2007] VCAT 1484 VCAT ordered the respondents to remove the offensive material from their website and to refrain from making, publishing or distributing similar statements in Victoria. The respondents were later sentenced to nine months' imprisonment for failing to do so, see Ordo Templi Orientis Inc v Devine [2007] VCAT 2470.

• In Catch the Fire Ministries Inc v Islamic Council of Victoria Inc [2006] VSCA 284, although the Court of Appeal ordered the matter be returned to VCAT for reconsideration, it found VCAT did not act outside its jurisdiction by ordering the respondents to place advertisements in two daily newspapers. VCAT noted this type of remedy 'is likely to go a long way to redressing the sense of hurt and therefore injury suffered by those against whom hatred or other relevant emotion has been incited'.

Examples of remedies under federal discrimination law

Given the limited case law under the RRTA, cases under the racial hatred provisions of the Racial Discrimination Act provide some guidance on the types of remedy that could be awarded for unlawful vilification under the RRTA.

Please note that the examples below contain highly offensive racist slurs.

Examples of remedies awarded under section 18C of the Racial Discrimination Act:

• In Kanapathy v In De Braekt [No 4] [2013] FCCA 1368 a legal practitioner abused a security officer by calling him a 'Singaporean prick' and telling him to go back to where he had come from. The abuse occurred when the officer asked the respondent to undergo a security search at a court building. The Federal Circuit Court awarded the complainant $12,500 – $10,500 general damages for the offensive conduct and $2000 special damages for medical expenses.
• In Barnes v Northern Territory Police [2013] FCCA 30 a police officer shouted offensive words at the complainant because of his race while driving past his home. The Federal Circuit Court awarded the complainant $3500.
• In Sidhu v Raptis [2012] FMCA 338 the complainant was called a 'coconut' and 'nigger' in public. The Federal Magistrates Court awarded the complainant $2000.
• In Campbell v Kirstenfeldt [2008] FMCA 1356 the complainant's neighbour abused the complainant and her family by calling them names including 'niggers', 'coons', 'black mole' and 'black bastards'. The Federal Magistrates Court awarded the complainant $7500 and ordered the respondent to make a written apology.
• In Silberberg v The Builders Collective of Australia Inc [2007] FCA 1512 the second respondent posted messages to an internet discussion forum that offended the complainant because of his Jewish race and ethnicity. The Federal Court of Australia made an order restraining the second respondent from publishing the offending messages or any similar material on the internet or elsewhere.
• In Jones v Toben [2002] FCA 1150 the director of the Adelaide Institute published material on its website casting doubt about whether the Holocaust occurred. The Federal Court of Australia ordered the respondent to remove the offending material from its website, and not to publish or republish the same or similar material. An appeal to the Full Court of the Federal Court was dismissed.

No exemptions from unlawful vilification

People cannot seek exemptions to engage in vilification.

Section 89(1A) of the Equal Opportunity Act sets out that the Tribunal must not grant an exemption to allow vilifying conduct.

Criminal vilification offences

The two offences are:

1. an incitement offence

A person commits this offence if they say or do something that could encourage hatred against, serious contempt for, revulsion toward or severe ridicule of another person or group of persons:

• because of a protected attribute, and
• is intending for their behaviour to result in inciting these emotions or is believing it will probably do so.

There is no need to prove that the behaviour did incite hatred, serious contempt, revulsion or severe ridicule.

2. a threat offence

A person commits this offence if they threaten another person or group with physical harm or property damage:

• because of a protected attribute, and
• is intending that the person or a person of the group will believe the threat will be carried out, or is believing they will probably believe it will be carried out.

For both offences, it does not matter if the person was wrong about the protected attribute. For example, if a person threatens to harm someone because they think they are from a particular ethnic group, they are still breaking the law if they are mistaken.

Coverage of more protected attributes

Previously under the RRTA, the serious vilification offences only applied to vilification based on race or religious belief or activity. Now the following protected attributes are covered:

These listed attributes have the same meaning as in section 4(1) of the Equal Opportunity Act.

Incitement on ground of protected attribute

The offence of incitement on ground of protected attribute – section 195N(1) of the Crimes Act – refers to a person engaging in conduct:

The conduct may be constituted by a single occasion or by a number of occasions over a period of time.

Elements of the incitement offence

The Explanatory Memorandum to the Justice Legislation Amendment (Anti-vilification and Social Cohesion) Act 2025 provides guidance on the offence of incitement on the ground of protected attribute. It states that:

• the accused must have engaged in conduct that is likely to incite hatred against, serious contempt for, revulsion towards or severe ridicule of, another person or a group of persons;
• the accused must have intentionally and voluntarily engaged in the conduct, and intentionally done so on the ground of a protected attribute;
• the protected attribute must be a substantial reason for engaging in the conduct, but it does not have to be the sole reason;
• an offence may be charged in relation to one or more, or a combination of, protected attributes of a person or group;
• in circumstances where the behaviour was engaged in on the ground of several distinct protected attributes, it is intended that it would be sufficient to prove that the accused engaged in the behaviour on the ground of any of those protected attributes;
• it is not necessary to prove that the accused's conduct actually incited hatred against, serious contempt for, revulsion towards or severe ridicule of, another person or a group of persons;
• the accused will be guilty if they either intended or were reckless as to whether their conduct would incite hatred against, serious contempt for, revulsion or severe ridicule of, the other person or the group
  

Whether the conduct is likely to incite hatred against, serious contempt for, revulsion towards or severe ridicule of another person or group of persons is to be determined objectively. This differs to the previous serious vilification offences under section 24 and 25 of the RRTA, which required proof that the accused subjectively knew their conduct was likely to incite hatred and threaten physical harm or property damage, or likely to incite serious contempt, revulsion or severe ridicule.

Meaning of 'incite' 'hatred' 'serious contempt' 'revulsion' and 'severe ridicule'

According to the Explanatory Memorandum, ‘incite" is intended to have its ordinary or dictionary meaning.

Similarly, ‘hatred’, ‘serious contempt,’ ‘revulsion’ and ‘severe ridicule’ are also intended to have their ordinary meaning and to be informed by the way they have been interpreted under the previous serious vilification offences under the RRTA.

As with the previous serious vilification offences under sections 24 and 25 of the RRTA, this offence is intended to target extreme conduct that urges or promotes the strongest forms of dislike towards a person or group of persons (4).The offence is not intended to capture “mere contempt, distaste and ridicule", or "seriously unkind" conduct or "bad thoughts" ( Cottrell v Ross [2019] VCC 2142 [38]).

Cottrell v Ross [2019] VCC 2142 is the only successful prosecution of serious vilification under the RRTA. Guidance provided by the court in this case may still provide useful guidance for the new serious vilification offences.

Mr Cottrell was a member of a far-right anti-Islam group. He participated in a short video of a mock beheading, used to promote a protest against a new Mosque in Bendigo, and uploaded it to the group’s Facebook page.

The Magistrates Court of Victoria convicted Mr Cottrell of serious religious vilification, fining him $2,000. Mr Cottrell appealed the decision to the County Court. Chief Judge Kidd upheld the conviction, finding that Mr Cottrell’s video was purposeful and calculated [322], intended to incite visceral, impactful and lasting emotions [324] and ‘whip up extreme negative feelings’ including ‘fear, loathing, disgust and alarm’ towards Muslim people [327].

His Honour clarified that for the purposes of the serious vilification offence, the words ‘serious contempt for, or revulsion or severe ridicule’ should be given their natural and ordinary meaning and describe the strongest possible (or extreme) feelings of dislike [36]. In this way, the offence is ‘specified to apply only to the most extreme behaviour’ intended to cause those extreme feelings [36]. The court also observed that:

Chief Judge Kidd noted it was not necessary to decide whether motive is relevant to liability for serious vilification [55]-[56]. This was because in the circumstances there was ‘no doubt the appellant set out to act as he did by reason of the religious beliefs of Muslims’ [56]. However, his Honour commented that if the court needed to determine the matter, it was likely that the perpetrator’s motive would be a requirement of the offence:

Threaten physical harm or property damage on ground of protected attribute

The offence of threatening physical harm or property damage on ground of protected attribute – section 195O(1) of the Crimes Act – refers to:

Elements of the threat offence

The Explanatory Memorandum of the Justice Legislation Amendment (Anti-vilification and Social Cohesion) Act 2025 provides guidance on the offence of threaten physical harm or property damage on the ground of a protected attribute. It states that:

• the accused must have threatened physical harm towards, or to damage property of, another person or group of persons;
• the accused must have intentionally and voluntarily made the threat, and intentionally done so on the ground of a protected attribute;
• the protected attribute must be a substantial reason for making the threat, but it does not have to be the sole reason;
• it is intended that where the accused acted in a continuously threatening manner, it will be permissible to consider whether their conduct as a whole amounted to a threat;
• it is intended that a threat could be made up of owrds or conduct, or both;
• an offence may be charged in relation to one or more, or a combination of, protected attributes of a person or group;
• in circumstances where the threat was made on the ground of several distinct protected attributes, it is intended that it would be sufficient to prove that the accused engaged in the behaviour on the ground of any of those protected attributes;
• it is not necessary to prove that the other person actually believed that the threat would be carried out;
• the accused will be guilty if they intended to or were reckless as to whether the person or a person of the group will believe or probably believe that the threat will be carried out (section 195O(1)(c).
  

Meaning of 'physical harm' and 'property'

According to the Explanatory Memorandum, ‘physical harm’ and ‘property’ are intended to take their ordinary or dictionary meaning.

The offence is intended to apply to threats to damage tangible property that is related to a person or group with a protected attribute. The property may be owned or occupied by the person or group or otherwise connected to or associated with the person or group, provided the threat is made on the ground of the person's or group's protected attribute. This is intended to include places of worship, schools, and venues that are used by or that host events for people with protected attributes. It is intended to include properties with both a temporary or ongoing association or planned association (5).

Criminal liability of officers of bodies corporate - accessorial liability

Section 195R of the Crimes Act provides for criminal liability of bodies corporate. A body corporate commits an offence under sections 195N or 195O of the Crimes Act if an officer of a body corporate:

An officer of a body corporate may commit an offence under sections 195N or 195O of the Crimes Act whether or not the body corporate has been prosecuted or found guilty of one of these offences.

An officer of a body corporate may rely on a defence that would be available to the body corporate if it were charged with the offence.

Do the offences apply outside Victoria?

The law applies if the person’s actions are directly connected to Victoria. This means the law covers:

• people outside Victoria who target another person, group or property in Victoria
• people in Victoria who target another person, group or property outside Victoria

If the incitement offence is alleged to have been committed from outside Victoria:

• every person against whom the offence is alleged to have been committed must have been in Victoria when at least some of the conduct was engaged in to constitute that offence (section 195N(5))
• conduct that is against a group of persons that is defined solely by the possession of a protected attribute, does not constitute an offence (section 195N(6).

If any of the conduct alleged to constitute the incitement offence is engaged in from within in Victoria, it does not matter whether a person against whom the offence is alleged to have been committed was outside Victoria at that time (section 195N(7)).

If the threat offence is alleged to have been committed from outside Victoria:

• in the case of a threat to physically harm a person or group, that person or group must have been in Victoria when the threat was made (section 195O(3)(a)
• in the case of a threat to damage property, that property must have been in Victoria (section 195O(3)(b).

For threats made from within Victoria, it does not matter whether the person, group or property were outside Victoria at that time – section 195O(4).

Irrelevant if a person was wrong about a protected attribute

In determining whether a person has committed the offences, it is irrelevant that the person was incorrect about a protected attribute of the other person or group; or whether the other person or group had a protected attribute (section 195P of the Crimes Act).

Do the offences apply to private conduct?

The criminal offences can apply to conduct that is carried out in public and private settings.

If the elements of either vilification offence is made out, it does not matter where the vilification occurred.

This means that offences apply whether vilification happens:

• in public
• in private
• online, including in closed groups or private forums.

Prosecution and penalties

Victoria Police can arrest and charge someone if their conduct appears to amount to a serious vilification offence.

However, a prosecution for the serious vilification offences can only be commenced by, or with the consent of the Director of Public Prosecutions (section 195Q(1)).

In determining whether an offence is to be prosecuted, the Director of Public Prosecutions must take into account all the circumstances (including the social, cultural and historical circumstances) surrounding the conduct alleged to constitute the offence.

The Director of Public Prosecutions will only prosecute if:

• it is in the public interest;
• there is a reasonable chance of conviction.

The maximum penalties for the serious vilification offences have increased from the previous serious vilification offences under the RRTA:

• for incitement on the ground of a protected attribute – 3 years imprisonment under section 195N(1) of the Crimes Act
• for threatening physical harm or property damage – Level 6 imprisonment (5 years imprisonment) under section 195O(1) of the Crimes Act.

These maximum penalties are the highest possible penalties that can be imposed. A court may alternatively give a fine or community-based order.

Criminal vilification offences under the (repealed) RRTA

As of 20 September 2025, the previous serious vilification offences under the RRTA have been repealed. However, this does not prevent them from having effect regarding offences that may have occurred prior to the repeal. This means that police can still charge people with serious vilification offences under the RRTA for conduct prior to 20 September 2025.

The RRTA criminalises serious racial and religious vilification, under section 24 and section 25. As outlined in the Explanatory Memorandum the criminal offences only apply to the most 'extreme behaviour' and can be investigated by Victoria Police (page 3).

Serious racial and religious vilification under the RRTA refers to intentional conduct, on the ground of race or religious belief or activity, that the offender knows is likely to:

• incite hatred against a person or group, and to threaten (or incite others to threaten) physical harm to the person or group or their property (section 24(1) and section 25(1))

or

• incite serious contempt for, or revulsion or severe ridicule of, a person or group (section 24(2) and section 25(2)).

The offence of 'serious racial vilification' is set out in section 24 of the RRTA:

Section 25 is framed in similar terms to section 24 of the RRTA, except that it relates to conduct done on the ground of the religious belief or activity of another person or class or persons.

The Explanatory Memorandum explains:

According to section 26, in determining whether a person has committed an offence under section 24 or section 25, it is irrelevant whether the person made an incorrect assumption about the race or religious belief or activity of another person or group at the time of the alleged offence. The Explanatory Memorandum notes, for example, that a person will not escape liability if the person vilifies a group of persons in the mistaken belief that they are of a particular racial origin (page 8).

Section 24 and section 25 are strict liability offences, which means prosecution is not required to prove fault. Unlike the unlawful vilification provisions in section 7 and section 8 of the RRTA, there are no defences or exceptions for serious racial and religious vilification. However, a criminal standard of proof applies to these offences that must be proved 'beyond reasonable doubt', as outlined in section 141 of the Evidence Act 2008 (Vic).

To date, Cottrell v Ross [2019] VCC 2142 is the only successful prosecution of serious vilification under the RRTA. Mr Cottrell was a member of a far-right anti-Islam group. He participated in a short video of a mock beheading, used to promote a protest against a new Mosque in Bendigo, and uploaded it to the group’s Facebook page.

The Magistrates Court of Victoria convicted Mr Cottrell of serious religious vilification, fining him $2,000. Mr Cottrell appealed the decision to the County Court. Chief Judge Kidd upheld the conviction, finding that Mr Cottrell’s video was purposeful and calculated [322], intended to incite visceral, impactful and lasting emotions [324] and ‘whip up extreme negative feelings’ including ‘fear, loathing, disgust and alarm’ towards Muslim people [327].

His Honour clarified that for the purposes of the serious vilification offence, the words ‘serious contempt for, or revulsion or severe ridicule’ should be given their natural and ordinary meaning and describe the strongest possible (or extreme) feelings of dislike [36]. In this way, the offence is ‘specified to apply only to the most extreme behaviour’ intended to cause those extreme feelings [36]. The court also observed that:

Chief Judge Kidd noted it was not necessary to decide whether motive is relevant to liability for serious vilification [55]-[56]. This was because in the circumstances there was ‘no doubt the appellant set out to act as he did by reason of the religious beliefs of Muslims’ [56]. However, his Honour commented that if the court needed to determine the matter, it was likely that the perpetrator’s motive would be a requirement of the offence:

Criminal vilification offences under the (repealed) RRTA - Prosecution and penalties

In Victoria a prosecution for the offence of serious racial or religious vilification has not been permitted without the written consent of the Director of Public Prosecutions, as outlined under section 24(4), and section 25(4).

The maximum penalty for an offence under section 24 or section 25 of the RRTA is 300 penalty units for a body corporate, or 6 months' imprisonment and/or 60 penalty units for an individual. Refer to the Department of Justice & Community Safety Website for information about the value of a penalty unit.

Notes

1 : Ibid [36] (Nettle J), [178]–[179] (Neave J). Ashley J, at [132], left open the question of whether VCAT's consideration of balance in the seminar presentation led it into error.

2 : Citing [[http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VCAT/2003/1254.html][Judeh v Jewish National Fund of Australia [2003] VCAT 1254 [38]]] ; Catch the Fire Ministries Inc v Islamic Council of Victoria Inc [2006] VSCA 284 [14]–[16], [132], [161].

3 : Explanatory Memorandum, Equal Opportunity and Tolerance Legislation (Amendment) Bill 2006 (Vic) 3.

4 : Justice Legislation Amendment (Anti-vilification and Social Cohesion) Bill 2024, Explanatory Memorandum, clause 4

5 : Justice Legislation Amendment (Anti-vilification and Social Cohesion) Bill 2024, Explanatory Memorandum, clause 4

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