New protections for religious groups against vilification
Published on March 15, 2024 by Josephine Heesh and Grace Brophy
Recent legislative amendments have resulted in protection for religious groups against hateful and discriminatory treatment.
The Anti-Discrimination Amendment (Religious Vilification) Act 2023 (NSW) amends the Anti-Discrimination Act 1977 (NSW) to introduce a civil prohibition on religious vilification, consistent with existing vilification provisions in the Act.
The new law is contained in Part 4BA of the Anti-Discrimination Act.
The Bill will make it unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of a person, or groups of persons, based on their religious beliefs, affiliations, or activities.
The new law will also extend its protection to individuals who do not hold a religious belief or affiliation, as well as those who do not engage in religious activity in acknowledgement that those views should also be protected.
Definition of Public Act
A public act is defined under s 49ZD as any form of verbal communication to or conduct observable by the public, including but not limited to, print, radio, video, or online/social media.
The term also includes the distribution or dissemination of matter to the public with knowledge the matter promotes or expresses hatred towards, serious contempt for or severe ridicule of:
i. a person on the ground the person has, or does not have, a religious belief or affiliation, or
ii. a person on the ground the person engages, or does not engage, in religious activity or
iii. a group of persons on the ground the members of the group have, or do not have, a religious belief or affiliation, or
iv. a group of persons on the ground the members of the group engage, or do not engage, in religious activity.
Objectives
The Attorney-General and Minister for Multiculturalism have explained the rationale behind this change, citing an intolerance of hatred and division on the basis of religion, and the enrichment offered by a multi-faith community.
Vilification laws are intended to enable people to live free from hostility and violence and to maintain and practice their religious views without fear.
NSW Premier Chris Minns is quoted as saying that “abusing people on religious grounds threatens the thriving, tolerant, multi-religious and multi-ethnic heart of NSW…we must all champion community harmony and togetherness and choose peace and solidarity over hatred and divisions”.
The amendments to the Act will bring religious protection into harmony with the protections afforded against vilification offered to the LGBTQI+ community, racial minorities, and HIV/AIDS status.
The NSW Labor Party has also pledged $10m to assist faith organisations improve safety and security at places of worship, schools, and community centres.
The government has also confirmed that it will establish a Premier’s Prevention Panel on Racism and Extremism to address growing concerns of faith and culturally and linguistically diverse communities in NSW.
The panel will include stakeholders from government agencies including the NSW Police Force, Multicultural NSW, NSW Health, Department of Education, Communities and Justice, Local Government, and Family and Community Services.
Conduct that Constitutes Religious Vilification
The amendments are directed namely at hate speech, which is defined as conduct amounting to discrimination but not necessarily vilification, which will not offend these new laws. There also remains the distinction between conduct that is offensive and conduct that is vilifying.
However, these classifications of conduct are fact-specific, and the distinctions are nuanced. The types of conduct which would amount to vilification include excessively foul language and threats of violence, with reference to the victim’s religious beliefs.
In effect, religious “discrimination” deals with adverse treatment of an individual based on their religion, whereas religious “vilification” deals with statements causing harm. While discrimination on the basis of religion is proscribed at the federal level, there is an exception in the context of employment at an institution conducted in accordance with the doctrines of a particular religion. The proscription against vilification applies in addition to the proscription against discrimination, and is without exception.
Remedies
The legislative changes will enable individuals who have been subject to religious vilification the opportunity to seek redress through civil proceedings. Such remedies may include:
- making a complaint to Anti-Discrimination NSW, which will normally be dealt with by way of conciliation;
- determination by the NSW Civil and Administrative Tribunal (NCAT) for a range of orders including, damages of up to $100,000, publishing of a retraction, and an apology.
In NSW, individuals can be fined up to $100,000 if they religiously vilify someone.
Exceptions
There are exceptions to public acts which are intended to ensure an appropriate balance between freedom of speech and freedom of religion. The prohibition against religious vilification will not apply to:
- a fair report of a public act;
- a communication or the distribution or dissemination of any matter on an occasion that would be subject to a defence of absolute privilege in proceedings for defamation; or
- a public act, done reasonably and in good faith, for academic, artistic, scientific, research or religious discussion or instruction purposes or for other purposes in the public interest.
Please note that this article does not constitute legal advice. If you have been affected by such conduct, contact either Josephine Heesh at (02) 9291 7170 or Grace Brophy at (02) 8226 7320 for legal assistance.
