Racial and Religious Tolerance Act Amendments

Clarification of the meaning of ‘religious purpose’ to include “teaching, conveying and proselytising of a religion’.

(Amendment to Section 11 of the  Racial and Religious Tolerance Act 2001)

There has been some uncertainty in the faith community about freedom to  proselytise.

In his recent judgement in Fletcher v The Salvation Army Australia [2005], VCAT 1523, Justice Morris observed that the RRTA does not prohibit proselytising.

The Government has clarified the meaning of “religious purpose” to include “conveying, teaching or proselytising of a religion”. “Religious purpose” must be  genuine and remains subject to the requirement of reasonableness and good  faith.

This amendment will ensure the RRTA is interpreted in line with Justice Morris’ observations.

Strengthening the investigation powers of the Equal Opportunity Commission of  Victoria.

(Amendment to section 108(1A) of the Equal Opportunity Act 1995)

Racial or religious vilification complaints made under the Racial and Religious Tolerance Act are governed by the Equal Opportunity Act.

The investigation powers for the Equal Opportunity Commission of Victoria have been strengthened to facilitate the early resolution of complaints at the investigation stage.

The Government has amended the Equal Opportunity Act to extend the Commission’s complaint investigation powers to include requiring a person to attend or produce documents during the early investigation of a complaint, before a decision is made to  either accept or decline a complaint.

This amendment will apply to all complaints handled under the Equal Opportunity Act, including complaints of discrimination sexual harassment and  racial and religious vilification.

By facilitating the resolution of complaints at the investigation stage, both the number of frivolous complaints lodged for conciliation and complaints referred to VCAT will be  reduced.

Introduction of an offence for non-compliance with a notice to produce document or attend at the Equal Opportunity Commission of Victoria.

(Amendment to Section 201 of the  Equal  Opportunity Act 1995 and Section  23 of the Racial and Religious Tolerance Act 2001)

Non-compliance with both investigation and conciliation notices will now be offences under the Act, subject to a penalty.

These offences will now also be subject to a defence of reasonable excuse. The  Magistrates Court will consider the defence of reasonable excuse on a case-by-case basis, taking into account the intention of the proposed amendments to encourage the  early resolution of disputes.

Amendment to introduce a leave mechanism and allow the Victorian Civil and Administrative Tribunal a discretion to allow complaints of racial and religious vilification to proceed on the papers alone without parties or their representatives or  witnesses having to be heard in person  at the Tribunal.

(Amendment to insert a Section 23A to the Racial and Religious Tolerance Act 2001)

This amendment will reduce the risk of costly legal proceedings on unmeritorious complaints of racial and religious vilification.

The Victorian Civil and Administrative Tribunal can hear a complaint of racial and religious vilification that the Equal Opportunity Commission of Victoria has declined to conciliate, for example because the Commission considered that the  complaint was frivolous, lacked  substance, or was lodged out of time.

In his decision in the Fletcher v Salvation Army case, Justice Morris recommended that a person referring a complaint declined by the Commission to the Tribunal be required to obtain the leave of the Tribunal before the proceeding is initiated. Justice Morris recommended that the question as  to  whether leave should be given should be  decided  on the papers.

This amendment to the Racial and Religious Tolerance Act introduces a leave mechanism. A person who has a racial and religious vilification complaint declined by the Commission for being frivolous, misconceived or vexatious, for example, and who wants to pursue it at the Tribunal will have to apply directly to VCAT for leave. Previously, the person would have requested the Equal Opportunity Commission of Victoria to refer the declined complaint to  the Tribunal.

The Tribunal can decide to hear the leave application ‘on the papers’; in other words, without oral submissions, witnesses and legal representatives. In some cases the Tribunal may decide that it is not appropriate to hear a leave application on the papers alone, for example where language barriers or disabilities restricted a party’s capacity to present their case in written form.

This amendment will apply only to complaints of racial and religious vilification declined by the Commission. It does not apply to complaints of racial and religious vilification entertained and conciliated by the Commission or  complaints  of discrimination or sexual  harassment.