Offence of Serious Racial Vilification

Police Interview

I the police want to interview you in relation to an allegation of Serious Racial Vilification, you must understand this right and when you should exercise it.

If you have been arrested or invited to an interview with police in relation to the offence of Serious Racial Vilification, you should speak to a criminal lawyer to obtain expert advice about whether to exercise your right to silence, or whether it is in your best interests to answer questions. You may also want to know if you should attend the interview. One of our lawyers can answer all of your important questions.

Pleading Not Guilty

Just because you have been charged with an offence by police, does not mean that you have to accept it. Like any other criminal offence, the charge of Serious Racial Vilification must be proved beyond reasonable doubt before the Court.

An expert criminal lawyer will analyse the police brief of evidence, request any outstanding materials and work with you to devise your defence strategy. Ultimately, your best chance of successfully contesting the charge is with legal representation from an experienced criminal lawyer at Court.

Pleading Guilty

Perhaps you did not realise the power of your words, and that you can commit a criminal offence with words alone. Perhaps you did realise the power of your words and now and you deeply regret them.

If you are pleading guilty to the offence of Serious Racial Vilification, an expert criminal lawyer can provide you with advice about best steps to take prior to going to Court and assist you to effectively explain the circumstances of the offending to the Magistrate, and importantly, why it will not happen again.

Which court will the case be heard in?

This offence is ordinarily heard in the Magistrates’ Court. A prosecution for this offence cannot commence without the written consent of the Director of Public Prosecutions.¹

What is the legal definition of Offence of Serious Racial Vilification?

1. A person (the offender) must not, on the ground of the race of another person or class of persons, intentionally engage in conduct that the offender knows is likely—
   1. to incite hatred against that other person or class of persons; and
   2. to threaten, or incite others to threaten, physical harm towards that other person or class of persons or the property of that other person or class of persons.
      
      
   Note
   “Engage in conduct” includes use of the internet or e-mail to publish or transmit statements or other material.
   
   Penalty: In the case of a body corporate, 300 penalty units; in any other case, imprisonment for 6 months or 60 penalty units or both.
   
   
2. A person (the offender) must not, on the ground of the race of another person or class of persons, intentionally engage in conduct that the offender knows is likely to incite serious contempt for, or revulsion or severe ridicule of, that other person or class of persons.
   
   Note
   “Engage in conduct” includes use of the internet or e-mail to publish or transmit statements or other material.
   
   Penalty: In the case of a body corporate, 300 penalty units; in any other case, imprisonment for 6 months or 60 penalty units or both.
   
   
3. For the purposes of subsections (1) and (2), conduct—
   1. may be constituted by a single occasion or by a number of occasions over a period of time; and
   2. may occur in or outside Victoria.
      
      
4. A prosecution for an offence against subsection (1) or (2) must not be commenced without the written consent of the Director of Public Prosecutions.

Examples of Offence of Serious Racial Vilification

• A person publishes content on a public Facebook thread that is deliberately designed to incite hatred against people of a certain race.
• A person makes statements at a public rally inciting other people to physically harm people of a certain race.
• A person puts up posters on a University campus that are designed to incite revulsion against people of a certain race.

Legislation

The relevant legislative provision for this offence is section 24 of Racial and Religious Tolerance Act 2001 (Vic) (the Act).

Elements of the offence

For a person to be found guilty of this offence, the prosecution must prove the following elements beyond reasonable doubt:

1. The accused engaged in conduct that could incite hatred against another person or class of person, threaten or incite others to threaten physical harm against another person or class of person or incite serious contempt for, or revulsion or severe ridicule of, another person or class of person;
2. The accused’s conduct was on the grounds of the race of the other person or class of persons; and
3. The person knew that their conduct is likely to incite hatred against another person or class of person, threaten or incite others to threaten physical harm against another person or class of person or incite serious contempt for, or revulsion or severe ridicule of, another person or class of person.

Element 1: The accused engaged in conduct that could incite hatred against another person or class of person, threaten or incite others to threaten physical harm against another person or class of person or incite serious contempt for, or revulsion or severe ridicule of, another person or class of person
The term ‘engage in conduct’ is not exhaustively defined in the Act, however it does include using the internet or e-mail to publish or transmit statements or other material.² ‘Engaging in conduct’ in the context of this offence could also mean making public statements, hanging posters, painting graffiti, distributing pamphlets or other actions.

The conduct may occur on a single occasion or on a number of occasions over a period of time and may occur outside Victoria.³

The accused’s conduct must either:

• Incite hatred against another person or class of person;
• Threaten or incite others to threaten physical harm against another person or class of person; or
• Incite serious contempt for, or revulsion or severe ridicule of, another person or class of person.

Element 2: The accused’s conduct was on the grounds of the race of the other person or class of persons
The accused’s conduct must be on the grounds of the race of the other person or class of persons.

The term ‘race’ includes:⁴

1. Colour;
2. Descent or ancestry;
3. Nationality or national origin;
4. Ethnicity or ethnic origin;
5. If two or more distinct races are collectively referred to as a race:
   1. Each of those distinct races;
   2. That collective race.

“Was the course of conduct on the grounds of the race of another person or a class of persons?”

Element 3: The accused knew that their conduct is likely to incite hatred against another person or class of person, threaten or incite others to threaten physical harm against another person or class of person or incite serious contempt for, or revulsion or severe ridicule of, another person or class of person
The accused must ‘know’ that their conduct is ‘likely’ to incite hatred against another person or class of person, threaten or incite others to threaten physical harm against another person or class of person or incite serious contempt for, or revulsion or severe ridicule of, another person or class of person.

An accused must be aware that it is probable that their actions will have this effect.

This means that if an accused is aware that it is possible their actions will have this effect but not aware that it is more likely than not that their actions will have this effect, the third element of this offence will not be satisfied.

Defences

Defences to this charge will ordinarily turn on some element of the offence not being made out. These defences include:

• The accused did not engage in conduct that could incite hatred against another person or class of person, threaten or incite others to threaten physical harm against another person or class of person or incite serious contempt for, or revulsion or severe ridicule of, another person or class of person;
• The accused’s conduct was not on the grounds of the race of another person or class of persons;
• The accused did not know that their conduct was likely to incite hatred, threaten physical harm or incite others to threaten physical harm or incite hatred, threaten physical harm or incite others to threaten physical harm or incite serious contempt for, or revulsion or severe ridicule of, that other person or class of persons.

Questions in cases like this

• Did the accused engage in conduct that could incite hatred against another person or class of person, threaten or incite others to threaten physical harm against another person or class of person or incite serious contempt for, or revulsion or severe ridicule of, another person or class of person?
• Was the accused’s conduct on the grounds of the race of the other person or class of persons?
• Did the accused know that that their conduct was likely to incite hatred, threaten physical harm or incite others to threaten physical harm or incite serious contempt for, or revulsion or severe ridicule of, that other person or class of persons?

You should ring us and discuss your case if you have been charged.

Deciding on whether to plead guilty or not has significant consequences for you and should be made after proper discussion with a criminal lawyer.

Maximum penalty for section 24 of Racial and Religious Tolerance Act 2001

The offence of Serious Racial Vilification (s24 of Racial and Religious Tolerance Act 2001) has a maximum penalty of:

• 300 penalty units (a $48,357 fine) for a body corporate; and in any other case
• 6 months imprisonment or 60 penalty units (a $9,671.40 fine) or both.⁵

The Department of Treasury and Finance reviews and updates the value of a penalty unit on 1 July each year.⁶ As such, the maximum fine for this offence may change.

Other important resources

• Racial Vilification Law in Australia

_{[1] Racial and Religious Tolerance Act 2001 (Vic) s 24(4)
[2] Racial and Religious Tolerance Act 2001 (Vic) s 24
[3] Racial and Religious Tolerance Act 2001 (Vic) s 24(3)
[4] Racial and Religious Tolerance Act 2001 (Vic) s 3
[5] Racial and Religious Tolerance Act 2001 (Vic) s 24
[6] Department of Justice, ‘Penalties and Values’, accessed 17/11/2018 <http://www.justice.vic.gov.au/home/justice+system/fines+and+penalties/penalties+and+values/>.}