In recent years, Queensland has made significant efforts to strengthen its laws against vilification and hate crimes. Previously, the Anti-Discrimination Act 1991 already prohibited unlawful vilification based on race, religion, sexuality, gender identity, or sex characteristics. However, the new legislation, known as the Criminal Code (Serious Vilification and Hate Crimes) and Other Legislation Amendment Act 2023, was passed in October 2023 and amends the Anti-Discrimination Act 1991.
In this article, we will explore the current vilification laws in Queensland, including the bans and increased penalties for hate crimes and serious vilification. Additionally, we’ll look into the implications of this law for those accused of vilification or hate crimes.
If you’ve been accused of vilification or hate crimes, consult with one of our experienced Criminal Defence Lawyers today.
Unlawful Vilification
Under the Anti-Discrimination Act 1991, vilification is defined as a public act that incites hatred, serious contempt, or severe ridicule towards a person or group based on their race, religion, sexuality, gender identity, or sex characteristics. There are two levels of vilification:
Unlawful vilification: A civil issue managed by the Queensland Human Rights Commission through their complaints process.
Serious vilification: A criminal offence that involves threats of harm or encouraging others to threaten physical harm.
A public act includes any form of communication to the public, such as speaking, writing, printing, displaying notices, and online or electronic means. Further, these include observable conduct like actions, gestures, or wearing/displaying clothing, flags, emblems, or insignia.
How the New Laws Against Hate Crime are Stronger in Queensland
The new laws, which took effect on 29 April 2024, include the following provisions:
1. Criminal offence for displaying prohibited hate symbols:
- Publicly displaying, distributing, or publishing prohibited hate symbols without reasonable excuse is now a criminal offence with a maximum penalty of six months’ imprisonment. This includes:
- Wearing clothing, tattoos, or insignia featuring the Nazi Hakenkreuz (the hooked cross), or other banned symbols in public. Note that the Hakenkreuz is not the swastika, which is a symbol used in religions such as Hinduism and Jainism.
- Carrying flags, banners, or signs with prohibited symbols at rallies or protests.
- Displaying graffiti or posters with banned symbols in public spaces.
- Distributing physical items like stickers, badges, or flyers bearing prohibited symbols.
- Publishing or sharing images of banned symbols online, such as on social media or websites accessible to the public.
The Attorney-General, in consultation with the Commissioner of Police, the Chairperson of the Crime and Corruption Commission, and the Queensland Human Rights Commissioner, will determine which hate symbols will be criminalised through regulation. However, Section 52C states that a symbol must be prohibited if it embodies an ideology of extreme prejudice against a person or a group based on their race, religion, sexuality, sex characteristics, or gender identity.
Nonetheless, the legislation permits the public display of these symbols for legitimate artistic, religious, educational, or law enforcement purposes with reasonable excuses.
2. Increased penalties for hate-motivated crimes:
- The new legislation increases penalties for committing offences motivated by hatred or serious contempt against a particular person or group’s characteristics. These offences include:
- Going armed to cause fear
- Threatening violence
- Assault occasioning bodily harm
- Wilful damage
- Stalking
- Harassment
- Public nuisance
These reforms position Queensland at the forefront of efforts to combat hate crimes and vilification, reflecting the state’s commitment to fostering a safe and inclusive community.
3. Relocation and higher penalty for serious vilification:
The criminal offence of serious vilification has been moved from the Anti-Discrimination Act to the Criminal Code, with a higher penalty.
Implications for Those Accused of Vilification and Hate Crimes
The expanded vilification and hate crime laws in Queensland have significant implications for those accused of such offences. However, it is important to note that these laws are not meant to imprison someone for “simply being offensive”.
Here are the key considerations:
1. Increased Scrutiny and Legal Risks
- Higher Penalties: The new laws impose harsher penalties for serious vilification and hate crimes, including potential custodial sentences. Offenders convicted of hate-motivated crimes can face longer prison terms and larger fines than before
- Criminalisation of Hate Symbols: Publicly displaying, distributing, or publishing hate symbols is now a criminal offence. This broadens the scope of what can be prosecuted, capturing acts like wearing prohibited symbols on clothing or sharing them online.
2. Burden of Proof and Defence Strategies
- Proving Intent: Defendants must be prepared to counter the prosecution’s evidence that their actions were intended to incite hatred or serious contempt. This requires careful examination of the context and intent behind their actions.
- Reasonable Excuses: The law allows for certain defences, such as genuine artistic, religious, educational, or law enforcement purposes. Defendants must convincingly demonstrate that their actions fall within these exceptions to avoid conviction.
- Challenging Evidence: Defence lawyers must scrutinise the evidence presented, including communications, actions, and the context of the alleged vilification or hate crime. Expert testimony and character witnesses may be crucial in providing an alternative narrative.
3. Impacts on Personal and Professional Life
- Social and Professional Repercussions: Being accused of vilification or hate crimes can have severe personal and professional consequences, including loss of employment, social ostracism, and damage to reputation. The public nature of these offences means that accusations can quickly become widely known, especially with social media.
- Legal Costs and Process: Defending against such charges can be costly and time-consuming. The accused may face significant legal fees, and the stress of a prolonged legal battle can impact their mental and physical health.
4. Legal and Social Awareness
- Need for Education: Both law enforcement and the judiciary require comprehensive training to help them properly understand and enforce these new laws. This ensures fair and consistent application, preventing misuse or overreach.
- Public Awareness: Increased public awareness about what constitutes vilification and hate crimes, as well as the severe penalties involved, may act as a deterrent. However, it also means that individuals need to be more conscious of their actions and expressions to avoid unintentional violations.
Conclusion
The enactment of the Criminal Code (Serious Vilification and Hate Crimes) and Other Legislation Amendment Act 2023 marks a pivotal shift in Queensland’s legal framework, addressing the nuanced and pervasive nature of hate crimes and vilification. This legislative evolution underscores a commitment to combating hate speech and symbols, ensuring that offenders are met with stringent penalties and that public spaces are safeguarded against symbols of intolerance and prejudice.
Nonetheless, the law does make exceptions to what can be considered offensive. If you are accused of committing a vilification or hate crime, don’t hesitate to consult with our experienced criminal defence lawyers. We will guide you through the complexities of vilification and hate crime laws and ensure that your rights are protected. Contact one of our Brisbane Criminal Lawyers or Gold Coast Criminal Lawyers today!