NSW introduces religious vilification laws

On 12 November 2023, the Anti-Discrimination (Religious Vilification) Act 2023 (NSW) came into effect, to prohibit vilification on the basis of religious belief, affiliation or activity. It is an amendment to the Anti-Discrimination Act 1977, which already overs vilification on the grounds of race, homosexuality, transgender status and HIV/AIDS status.

Under the new Part 4BA of the Anti-Discrimination Act 1977, “religious vilification” is defined as a public act that incites hatred towards, serious contempt for, or severe ridicule of, a person or group of persons, because of their religious belief, affiliation, or activity, or because they do not have a religious belief or affiliation, or do not engage in religious activity.

A “public act” includes any form of communication to the public, including speaking, writing, printing, displaying notices, broadcasting, telecasting, screening and playing of tapes or other recorded material, and conduct observable by the public including actions and gestures, and the wearing or display or clothing, signs, flags, emblems and insignia, as well as 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 persons on the basis of religious belief or affiliation or lack of.

Exceptions

The new law contains three exceptions that prevent conduct that would otherwise amount to religious vilification from being unlawful. The exceptions apply to:

• A fair report of a public act.
• Communication or the distribution or dissemination of any matter on an occasion that would be subject to a defence of absolute privilege under defamation law in proceedings for defamation.
• 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, including discussion or debate about and expositions of an act or matter.

Complaints & Remedies

A person will be able to lodge a complaint of religious vilification with the president of the Anti-Discrimination Board, who will encourage mediation if possible, and who can otherwise refer a complaint to the NSW Civil and Administrative Tribunal. If the tribunal finds a complaint substantiated, it can order a range of remedies depending on the circumstances, including damages of up to $100,000, or orders requiring an apology, a retraction, or to not engage in further unlawful activity.

Key Take-Aways

The new religious vilification laws in NSW have implications for employers. Employers may need to review their existing discrimination policies and training to ensure that they cover religious vilification as well as other forms of unlawful vilification.