Our Call for Change
Queensland is richly diverse, home to people from more than 220 countries and territories around the world, who speak more than 180 languages and hold over 100 religious beliefs. Our diversity makes us all richer. We pride ourselves on giving people a fair go – but if we want to stay that way, we’ve got to be vigilant.
This year, the COVID-19 pandemic has resulted in a widely-publicised wave of racially motivated incidents, firstly directed at members of Asian communities, and more recently the Brisbane African community.
Sadly, hate crime and vilification aren’t new issues for Queensland, or for Australia more broadly. In almost 20 years Queensland has seen only a handful of prosecutions for vilification. Our legal framework needs to be brought up to date to be able to deal adequately with what communities are experiencing every day, and now’s the time to do it.
We are seeking changes to the law which would address:
- The gap in current protections;
- The under-utilisation of the existing offence;
- The distribution or display of hate material; and
- The low levels of reporting and community confidence.
These proposals are outlined in this options paper.
The paper also examines the current legislative framework, the prevalence of vilification and hate based crime, and includes case studies and examples provided by our communities. The case studies are just a few examples of what is happening on a much broader scale across Queensland. They illustrate the problems we need to fix, as well as the solutions the next Parliament can implement to create a Queensland where everyone feels more safe and welcome.
Addressing the gap in current protections
“A young Sikh man was on his way to uni classes with a backpack carrying his laptop and books when a few young men started following him and calling him a terrorist, yelling to “watch the bomb on his back!” This incident was a horrifying experience for the young man as people stopped and looked at him. At first, he could not understand what was happening. The men carried on yelling abuse at him and followed him for quite a while” – Brisbane, date unknown.
The current criminal offence for serious vilification (contained in s131A of Queensland’s Anti-Discrimination Act 1991) does not cover the majority of harassment experienced by targeted communities.
The things many of our community members face on a regular basis – like verbal abuse, threatening behaviour, physical intimidation, or hate-motivated theft, for example – either aren’t covered adequately by the current law, or their remedies don’t provide enough protection for victims to feel safe in reporting them.
The introduction of a specific summary offence, or racial or religious motivation being recognised as a circumstance of aggravation on existing offences, could assist. So too could the introduction of a new species of order, along the same lines as a peace and good behaviour order, to address repeated concerning behaviour that falls short of criminal offences.
Addressing the under-utilisation of the existing offence
“Ultimately, it is the moslems themselves who will have to decide whether they want to re-join the human race….or race to extinction. Because the way they are behaving today they are making a lot of us westerners very, very angry…we might take a while to have our anger roused, but when it reaches a certain point we will hit back….the moslems will feel the full weight of our wrath and if we do not falter we will wipe out islam completely. There is only one attitude we must have towards islam. Leave islam or leave our nations. If you refuse….you die!” – Facebook post from Queenslander Michael Holt, January 2015.
Charges are not being made under section 131A of the Anti-Discrimination Act 1991, even when the behaviour is covered by the offence. This has a negative impact on community confidence and trust, and consequently on community reporting of crimes.
Cohesive Communities Coalition members are aware of several instances where cases cannot be prosecuted under s131A because police cannot obtain a warrant to preserve online evidence.
Currently an offence needs to have a maximum penalty of three years imprisonment in order for a warrant relating to online evidence to be issued. The maximum penalty for serious vilification under s131A is six months imprisonment. It is therefore impossible under the current law for police to get a warrant to preserve online evidence to support a charge of serious vilification.
In addition, only the Attorney-General or the Director of Public Prosecutions can approve the commencement of a prosecution under s131A. Both these issues need urgent attention to allow for better law enforcement responses to serious vilification.
Addressing the distribution or display of hate material or hate symbols
“At least twice a week this month, activists have been going out putting up posters, to the point where AR propaganda is becoming quite a noticeable feature on the Gold Coast. Propaganda has also been put up in Toowoomba, Sunshine Coast, and Brisbane, where they were noticed and picked up in the local news…” – Excerpt from January 2018 newsletter of far-right group Antipodean Resistance.
The distribution and display of hate material or hate symbols is currently largely unaddressed, unless the behaviour is so extreme that it constitutes an incitement to hatred.
Distributing or displaying hate material is endemic through mediums such as publications, graffiti, flyers, posters, stickers or flags.
In cases where the distribution or display of hateful material is not capable of inciting hatred in other people to the threshold required in s131A, alternative offences may be a more effective way of combatting hate.
One option may be to adopt offences modelled on those currently available in Western Australia which address the possession, distribution or display of hateful material, and extend them to other protected groups.
Addressing low levels of reporting and community confidence
“A magistrate has admonished a man who threatened to torch a Brisbane woman’s hijab with a lighter, labelling his behaviour “offensive” and “anti-social”. Dominic James Proberts, 44 of Windsor, was fined $500 in the Brisbane Magistrates Court on Monday for assaulting a woman outside the Boundary Hotel at West End in September.”
Excerpt from Courier Mail article ‘Man who threatened to burn hijab fined $500, runs from court with head covered’, October 2014.
Current operational practices in the policing and prosecution of hate crimes result in low community confidence. Justice outcomes are not matching community expectations and feeds into low community reporting.
Addressing these issues would result in improving community-police relations, which is critical for any successful hate crime policing program. It could also help address the sense of fear and danger which permeates through a victim’s community following an attack.
The introduction of a civil hate crime injunction, and/or hate crime scrutiny panels as per the United Kingdom model, could begin to help address these failures to ensure penalties for hate based crimes are more commensurate with community expectation.