1. The respondent's documents include a written submission setting out the basis on which the respondent's application for summary dismissal is made.
2. The submission refers to relevant case law including the leading cases of Catch the Fire Ministries, and Fletcher v Salvation Army [2006] VCAT 1523, which set out the threshold for contravention of the RRT Act, and draws from those cases to suggest that the threshold for contravention of the RRT Act cannot be not met in the circumstances of the present case.
3. The respondent has submitted that vilification will not be established by mere 'venting', and neither can the conduct in question in this case amount to vilification if the intended audience is limited to the applicant.[6] This is because liability under section 8 of the RRT Act is determined by reference to the effect on a relevant audience. It is concerned only with the mind of the audience, not with the perpetrator's state of mind.[7]
4. The respondent notes that the wording of section 12 of the RRT Act (set out above) confirms that the section's focus is on the incitement of others, rather than on private insults. The respondent submits that, even if the comments made by the prison officer to the applicant were overheard by others, as claimed, they were made to the applicant and not to the bystanders. The respondent notes that, according to the applicant's particulars of claim lodged on 29 October 2024, the prison officer himself said that the conversation between them was 'off the record'.
5. The respondent says that the applicant's claims about what was said to him and the circumstances in which the statements were made (which the respondent otherwise denies) were, if anything, merely offensive and insulting, and did not incite hatred against, serious contempt for, or revulsion or severe ridicule of the applicant on the 'ground that he is Jewish' (respondent's italics).
6. The respondent submits that, while the alleged comments may have been deeply offensive to the applicant, they were not of the kind that would encourage hatred or other strong negative feelings in any bystanders, against the applicant. The alleged statement by the prison officer was to challenge whether the applicant was really of Jewish faith.
7. According to the respondent, the alleged statements were objectively incapable of inciting the strong or extreme emotions of the kind referred to in section 8(1) of the RRT Act because of the applicant's Jewishness.

1. The applicant is unrepresented in this proceeding. He has, regardless of this, set out his claims clearly, and was articulate in his oral submissions to the Tribunal. I have considered the applicant's application form, all of the documents filed, and his oral submissions at the hearing. I accept his stated position that it was difficult to prepare his case optimally, given the restrictions of a prison environment.
2. As I am required to do, I have taken the applicant's claims at their highest and have proceeded on the presumption that he would be able to prove the facts alleged in his claims.
3. It is established law that the threshold for contravention of the RRT Act is high - that the alleged conduct must incite 'extreme responses'.[8] In regard to public policy concerns, although the RRT Act is beneficial legislation, the Act is reserved for extreme circumstances.[9] Morris J in Fletcher v Salvation Army [2005] VCAT 1523 at [1] gave examples such as where a person engages in conduct that inflames others to hate a person or persons because they adhere to an idea or practice or are of a particular race. The incitement must be of an audience to the conduct.
4. In the case of Pham v Jones [2012] VCAT 1161 Member Grainger gave examples of conduct that might amount to racial or religious vilification as including the publication of baseless allegations that a racial or religious group engages in serious criminal activities, encouraging violence against people of a particular racial or religious group, and the destruction of their property, or promoting hatred of a racial or religious group through the dissemination of public information.
5. The meaning of 'incitement' was considered by Nettle J in Catch the Fire Ministries at [13] citing the NSW Administrative Appeals Tribunal in Kazak v John Fairfax Publications[10] concerning section 20C(1) of the Anti- Discrimination Act 1977 (NSW) in which the Tribunal took the view that the word 'incites' should be given its ordinary meaning of:

urge, spur on...stir up, animate, stimulate to do something.

1. Justice Nettle considered the reasoning of the NSW Tribunal to be not apposite in relation to section 8 of the RRT Act, with further consideration to be given to the nature of the audience to whom the conduct is directed.
2. It is evident that there can be no vilification on the basis of race or religion unless there is an audience. As stated by Nettle JA in Catch the Fire Ministries [16]:

Evidently, there can be no incitement in the absence of an audience. ...If conduct is to incite a reaction, it must reach the mind of the audience. And if conduct is to be perceived as inciting a particular reaction, it must reach the mind of an audience as something which encourages that reaction.

1. Justice Nettle went on to state that for the purposes of section 8 the test is a question of whether:

the natural and ordinary effect of the conduct is to incite hatred or other relevant emotion in the circumstances of the case.[11]

1. The prohibition in section 8 of the RRT Act is not against saying things about the religious beliefs of persons which are offensive to those persons (as is alleged in the present case) or even saying things about the religious beliefs of one group of persons which would cause another group of persons to despise those beliefs. It is against saying things about the religious beliefs and practices of persons which go so far as to incite other persons to hate persons who adhere to those religious beliefs.[12]
2. The law requires that in considering whether section 8 has been breached it is necessary to take into account the effect of the words or conduct upon an ordinary member of the audience to which they were directed.
3. In the present case the comments made by the prison officer were clearly directed to the applicant. On the applicant's own evidence he was addressed in the first person, as part of a heated exchange between the two men.
4. Even if the comments were overheard by bystanders - the accompanying prison guards, or one or two other prison inmates - these persons do not constitute an audience as contemplated by the RRT Act. The comments of the prison guard were not directed to them.
5. Further, even if those bystanders could be considered to be part of any audience to whom the remarks were directed, those remarks could not have been capable of inciting any extreme response such as is contemplated by the RRT Act.
6. In the case of Bennett v Dingle (Human Rights) [2013] VCAT 1945 Justice French stated:

it is necessary to consider the perception of a reasonable member of the class of persons to whom the conduct was directed.

1. In the present case, even if one or more bystanders overheard the comments made, which essentially accused the applicant of not being Jewish, the comments could not have incited a hatred or any other strong emotion towards the religious group of Jewish people, or any other racial or religious group.
2. A prison officer, albeit using offensive and confronting language, has questioned the applicant's Jewishness. He has suggested that the applicant does not genuinely have that religious affiliation, rather than saying anything negative about him because he is Jewish. In these circumstances his comments cannot be constructed as vilification on the grounds of the applicant's (Jewish) religion.
3. Further, the comments were not directed at an audience, as the Courts have determined to be required by the RRT Act. They were directed at the applicant himself and stated by the prison officer to be 'off the record'. Even if overheard by bystanders, the comments of the officer about the sincerity of the applicant's religious faith were not capable of inciting or encouraging hatred towards him or towards Jewish people in general because of their Jewish faith.
4. I accept that the applicant was deeply aggrieved by the circumstances which gave rise to his application. I accept the sincerity of his views. However, even if the facts claimed by the applicant can be proven, the comments made to him by the prison officer cannot reach the threshold for vilification required by the RRT Act. His claims are misconceived.
5. I have considered the applicant's reference to the Courts' consideration of religious discrimination in the case Kaplan v State of Victoria [2023] FCA 1092, which involves vicarious liability for anti-semitic bullying, and from which the applicant draws parallels to his own circumstances. The Kaplan case however, was determined under Commonwealth law in respect to which VCAT has no jurisdiction, and is of little relevance in the present matter.
6. Having taken into account all of the material before me, I consider the respondent to have discharged the onus to satisfy the Tribunal that the complaint made by the applicant is unsustainable in fact or law, and that the proceedings are misconceived and lacking in substance.
7. On no reasonable view can the applicant's claims justify relief, and they should be summarily dismissed.

1. The applicant's claims made under the RRT Act are misconceived and lacking in substance and are dismissed accordingly pursuant to section 75 of the VCAT Act.

[1] State Electricity Commission of Victoria v Rabel [1998] 1 VR 102.

[2] Worldwide Enterprises Pty Ltd & Anor v Westpac Banking Corporation [2010] VCAT 1125 at [39].

[3] Campagnolo v Benalla and District Football League Inc [2009] VSC 228 [41].

[4] Catch the Fire Ministries [67] Nettle JA.

[6] Bennett v Dingle [2013] VCAT 1945 [44 - 46].

[7] Cotterill v Ross [2019] VCC 2142 [53].

[8] Catch the Fire Ministries [34] (Nettle JA), [174] (Neave JA).

[9] Fletcher v Salvation Army [2006] VCAT 1523 at [1].

[10] [2000] NSWADT 77.

[11] Catch the Fire Ministries [19].