Navigating legislation protecting Australians from different forms of hatred

By Gail Mason

Introduction

Many victims of hatred do not report their cases to anyone because they do not know that they can be protected by law. Legislation is often hard to navigate, especially in relation to a topic like hate. The laws that protect Australians from different forms of hatred are really diverse, and there is very little consistency across the whole country. What constitutes hate? How and when does legislation protect victims of hatred?

Mapping hate crime legislation in Australia

Different pieces of civil and criminal legislation protect victims of hatred in Australia, such as anti-discrimination legislation. Some of them are at federal level, others at state level. In this video, Prof Gail Mason provides a broad overview of how this jigsaw puzzle of legislation protects victims of hatred in Australia, discussing some of the key differences between states.  In particular, Gail discusses the legislation in Victoria and NSW, where in 2018 new criminal laws were introduced to address different forms of incitement to violence.

Examining the role of sentencing laws in governing crimes motivated by hatred in Australia

Some of the laws that govern hatred in Australia are civil laws, such as the ones that address hate speech. Others are criminal laws, which usually involve some form of violence, threat or incitement to violence. There are also sentencing laws in Australia, which allow judges to aggravate sentences if there is a biased motivation in the offender’s behaviour. In the next video, Prof Gail Mason discusses strengths and weaknesses of sentencing laws in governing crimes motivated by hatred in Australia.

What are the main gaps in the Australian legislative framework?

The Australian legislative framework has a lot of gaps in relation to governing, protecting and preventing behaviour motivated by inter-group hatred. For example, there is no clear and consistent definition of hate crime across different Australian states. As a consequence, there is no comprehensive data about the incidence of hate crime in Australia. Another main gap is the piecemeal approach to protecting some groups that are the targets of hatred, but not others. In the next video, Prof Gail Mason analyses these gaps, and discusses them against international cases from the UK and the US.

Communities perceptions of hate crime legislation

We conducted interviews and consultations in 2020 with representatives of numerous communities in Victoria, and asked their opinion about legislative frameworks.

Overall, all participants expressed some degree of dissatisfaction with existing anti-discrimination legislation. Most of their concerns and complaints related to a perceived incapacity of current laws to address and respond to hate speech.

We report here some key insights and quotes from the interviews.

• The bar is set too high, and legislation on discrimination should be strengthened.

“The legislation in Australia is not strong enough. Not like in other countries like Singapore, for example”. (Representative of a Sikh CSO)

“We need stronger legislation about equal opportunity. There is a feeling of an authorised environment that will allow hate speech and discrimination to grow because people won’t understand what they are allowed. The law raises the bar too much on what constitutes discrimination”. (Representative of a LGBTIQ+ CSO)

• There are gaps in the regulation of hate speech, which create conditions for hate speech and vilification to thrive

“There is conflict between freedom of speech and racial vilification. Freedom is always a competing topic. It’s missing proper definitions. People with strong antisemitic views have not been charged”. (Representative of a Jewish CSO)

“Hate speech should be an offense and people should be punished for it”. (Representative of an African CSO)

• Need for more legislation at federal level

“There is need for federal legislation that unfortunately we don’t have”. (Representative of governmental human rights agency)

• Need for improvements in the application of regulations

“The Equal Opportunity Act is working very well and it’s highly used, but the Racial and Religious Tolerance Act is a very good idea but it’s very hard to implement. Maybe some changes and some improvements of that Act can help, at least Victoria”. (Representative of governmental human rights agency)

• More regulation of institutional discrimination

“Our legislation could be clearer around dealing with institutional discrimination”. (Staff member of a community centre working with African communities)

• Inconsistency of legislation across different victims groups

“The law is very clear about hate crime, but Is there any of this reinforced? Or relevant to deaf people? I don’t know how the law translates to our reality. It’s not matching specific needs of deaf and hard to hearing people. The law is general about disability and it’s not clear in the same way compared to racism. For example, there is lot of discrimination, a lot of micro aggressions, really minor things, but the law doesn’t say anything about that”. (Representative of a CSO for deaf people)

“There are many gaps for giving access to justice to people who are not verbal. There is neglect toward these very vulnerable people. Current requirements regarding informed legal consent are thought to people with intellectual disabilities and there is a gap for people with communication impediments. Cross-examination is another issue”. (Representative of a CSO for people with communication impairments).

How do we address the gaps in Australian legislation governing hate crime and hate speech?

There are a few approaches, all of which need to start from serious community consultation in this area. In some states, practitioners, communities and academics have started organising forums and working groups, such as the Practitioners Working Group on Tackling Hate in Victoria, or the Australian Hate Crime Network. Countries like the UK and the USA also offer interesting examples of different ways to address hate crime and hate speech in a more comprehensive way, compared to Australia. In the next video, Prof Gail Mason discusses the various approaches and possibilities to address gaps in hate crime legislation.

Examining the legislation used by state human rights commissions: the case of Victoria

In Australia, human rights commissions rely upon state and federal legislation to protect citizens from different forms of hatred. However, state and federal laws are often incomplete and would need significant improvements. In the next two videos, Catherine Dixon explains the legislation that is relevant to the work of the Victorian Equal Opportunity and Human Rights Commission (VEOHRC), and discusses the submission that VEOHRC made to the Parliamentary inquiry into anti-vilification protections in February 2020. Catherine Dixon is the Executive Director, Commissioner’s Office, and has 17 years’ experience in legal, policy and management roles in both the public and private sector, with a focus on anti-discrimination law and human rights issues.

The Australian Hate Crime Network

Hateful content in violent extremist propaganda: the Criminal Code Amendment (Sharing of Abhorrent Violent Material) Act 2019

Incitement to hatred is a common feature of all extremist propaganda. Terrorists and violent extremists of all ideologies de-humanize, vilify and incite violence against people and groups they hate. In the Criminal Code Amendment (Sharing of Abhorrent Violent Material) Act 2019, which commenced on 6 April 2019, there are new offences for internet service, hosting and content providers that fail to report and remove “abhorrent violent material”.

In the Act, ‘Abhorrent violent material’ is limited to very specific categories of the most egregious violent audio-visual material produced by the perpetrator or their accomplice. Specifically:

• it must record actual acts of murder, rape, torture, terrorism involving physical harm and/or violent kidnapping.
• it must also be material that reasonable persons would regard as being, in all the circumstances, offensive.

The Government’s objective is that providers should be responsible for expeditiously reporting and removing abhorrent violent material if they are aware such material is available through their services. The offences will only be made out where material clearly fits within the narrow parameters of this definition and providers fail to act.