Racial Hate Crime in Victoria Australia

Australia’s hate crime statutes, which include hate speech, consider victims of discrimination, vilification, or injury. Because hate crime is directed towards a group of individuals, the individual victim is typically unimportant to the criminal. Criminalization rules range from one jurisdiction to the next. Victims of racial discrimination are compensated in all states. Other factors considered by different authorities include color, origin, race, religion, disability, or gender. There are two primary statutes in Victoria that control racial abuse.  Under the Victorian law, it is unlawful to vilify an individual or group of people by their race or religion (Sentencing Advisory Council, 2009, p. 3). The law is a particular concern for public behavior rather than personal beliefs or encounters. Under the Victoria state law, vilification is defined as any behavior that provokes and embolden hatred, contempt or any severe ridicule against another individual or group of individuals on the grounds of their religion or religious affiliation (Mason & Dyer, 2012, p. 872). Victoria State being in Australia is under the federal of Australia law that prohibits any public behavior that is offensive or abusive to an individual of the group of people due to their race, color, nationality or ethnic group. As such the crime Justice System in Victoria is under both the state and federal laws related to a racial hate crime. The essay analyzes the main issues faced by racial hate crime victims in Victoria Australia. The essay provides deeper insight on the laws governing racial hate crime and suggests ways that Victoria as a state and Australia as a country can improve these laws.

Racial hate crime victims in Victoria are not protected by the law in private settings. The Racial and Religious Tolerance Act of 2001 in Victoria dictates that racial and religious vilification is unlawful. This Act is a state law that is only applicable in Victoria jurisdiction. However, the law is only applicable in public environment and is ultimate unconcern for the private setting. Racial victims in Victoria are not protected by both the federal and the state laws when vilified in the absence of an audience. The racial vilification in Victoria encompasses making racist comments in print, through email or online including social media platforms such as Instagram, snapchat, twitter, facebook, making racist public statements at public meeting or rallies or writing or displaying racist posters and other publications. It is only under these specified circumstances does the Racial and Religious Tolerance Act of 2001 hold (Human Rights Organization, 2002). Vilification does not hold when the act is done in private, on an artistic work or performance, an accurate report by the media did in good faith and when the publication or comment is done in efforts of public interest. Racial hate crime victims in Australia are not adequately served by the laws of the state which seem to lag behind in other arena compared to racial acts in other countries like the United States. Under the federal law, the Racial Discrimination Act of 1975, it is unlawful to publically discriminate based on race, color, nationality or ethnicity of an individual (Mason, 2013, p. 3). Both acts define a public place as a place where the public is invited such as shops, transport systems, social arenas, streets, and workplaces. The Australian laws provide opportunities for racially motivated discrimination since they fail to cover all incidents of racial hate crime.

The aspect of how hate crime is defined and interpreted is vital in how hate crime victims including racial crime victims are treated. While hate a may be a fundamental and the most important factor on both the victims and perpetrator’s perceptive, it has been argued that hate crime is more than a mere issue of hate but rather a broad concept of prejudice. The concept of the Victorian Criminal justice system addressing hate crime on the mere basis of profound hatred increases the opportunities that motivate for racial discrimination since the perpetrators believe that they could get away with their crimes. Victoria State recently in 2010 amended the Sentencing Act of 1991 (Victoria Aboriginal Legal Service Co-operative Ltd, 2010). The current laws dictate the court to consider as a major factor in sentencing whether the crime was committed due to whole or partly hatred for or prejudice against a particular individual or group of individuals. The court is required to determine whether the crime was motivated due to perceived association to a certain group of people by either the victim or the perpetrators.

Racial hate crime victims may lack justice due to the aspect of the police department to downplay racial hate crime in efforts to protect their international image as a country. Racial hate crime is a crime against the fundamental human rights as stipulated by the UN. A country the reports high rates of such crimes may lose its holding in international status for the mere aspect they are sensitive to human rights (Thorneycroft & Asquith, 2015, p. 490). Victims of racial hate crime in Victoria are required to report their complaints to the Victorian Equal Opportunity and Human Rights Commission (VEOHRC) which works in collaboration with the Victorian police department. The Victorian police department and other police departments in Australia in many cases reluctant to take actions against victims of racial crime (Nelson, 2013, p. 3). For instance, during the 2009 controversy of prejudiced crimes against international students’ particularly Indian students in major cities of the current, the police department was reluctant in admitting the acts were racial based. Hate crime is a crime that is both hate driven and biased (Jakubowicz, 2015, p. 4473). A murder can be committed due to hate but can only be categorized as a hate crime if the victim was selected due to prejudice. In the case of violence against Indian students in Australia for more than six months, cases of Indian students in Victoria were reported throughout the state. However, the Victoria police department was keen to found other motives for these attacks claiming that it was a mere aspect of opportunity that drove these attacks since the Indian students preferred late nights providing an opportunity for criminals to advance their activities.

The death of one Nitin Grag when he was stabbed to death on his way to work in Melbourne city increased the concern on racism and the public perception on the matter in Victoria (Mason, 2010, p. 467). The Victoria police department was unable to determine any motive since it appeared that the victim was not robbed. The absence of any apparent motive is one of the indications that a crime is a hate crime. Many commentators believed that Grag’s death was a racial hate crime. However, the Victoria police department was unable to categorize the crime as a racial hate crime due to lack of evidence. The issue of racial hate crime was only addressed importantly after thousands of international students particularly Indians took to the streets in Melbourne after the death of Grag. The demonstrations prompted the introduction of sentencing aggravation provisions in a majority of the crimes motivated by prejudice in Victoria. However, the action was taken after demonstrations. This is an issue for the victims since they may not be adequately served by the Victoria police department if it takes the death of an individual and demonstrations to prompt any vital actions in the criminal justice system. It was clear from the statements of both the police and politicians that they tended to play down the racial element of the violence.

While the laws are clear on what is considered racial hate crime in Victoria including actions that incites hatred, serious contempt and severe ridicule against an individual or group of individuals based on their race, serious vilification prosecution is a rather cumbersome procedure. The procedures involved in discrimination crimes are long and tiring requiring the victim to live the experience over and over which generally discourages the victims. For instance, according to the New South Wales criminal justice system, the police department play no formal role in the investigation of vilification crime (Mason & Dyer, 2012, p. 880). The law dictates a referral for prosecution to be made to the Office of the Director of Public Prosecutions through the President of Anti-discrimination Board. In New South Wales legislation, the crime is stipulated as a discrimination law. Many scholars cite this as the main reason racial hate crime has failed to take root in the criminal law not only in New South Wales but also in other states in Australia including Victoria. Studies indicate that there has never been any conviction by serious vilification and a handful of prosecutions in Australia. It is indeed the effect of upholding discrimination laws rather than criminal laws when it comes to hate speech. While it is clear Victoria among other states in Australia have recently advanced treating of a prejudice motivated crime as an aggravating factor in sentencing, it is unclear to what extent the court determines the proof sufficient and which does not violate core fundamental values such as freedom of speech and expression. It is such drastic dimensions that make prosecution of racial hate crime cumbersome especially to the victims.

The basis of prosecution by prejudice is determined regarding “just deserts” principle which dictates sentencing should be done by the seriousness of the crime. It has been found the prejudice motivated crimes cause greater harm to the individual victims and the community at large as compared to similar crimes that are not prejudice motivated (Office for Democratic Institutions and Human Rights, 2014, p. 20). The effect to the individual who is a victim of a racial hate crime may be both physical and psychological affecting the entire life of an individual. Ascertaining of a motive in a court means a complete analysis of why the offender acted the why he did act. For instance, in a case of Hussein versus the Queen, the Crown presented evidence that the offenders made racist comments to a group of Indian men at a shop and later assaulted eight people while making rather depressing racists comments. The Victorian Court of Appeal agreed that the violence was motivated due to ill feelings towards Indians by the proprietors. The evidence of racist comments is the only reason the Victorian Supreme Court ruled by racial hate crime (Mason & Dyer, 2012, p. 881). However, many cases in Victoria that may be racially motivated are ruled on another basis such as damage to property and physical assault due to an absence of an alternative motive. In many cases evidence of the offender making a prejudiced statement is insufficient. For instance in a case of R versus Winefield, where the initial confrontation between the victim and the offender was not racial but an incident where the offender was leaving his drive-way and nearly collided with the victim. An alteration occurred after that that left the victim wounded but then the offender made a racist comment. It was determined the comment was based on an insult rather than a motive for the alteration. Prosecution by race is essentially difficult to provide evidence and a rather difficult process for the victim throughout the prosecution process. The efforts of the courts to protect the fundamental values of Australia makes the prosecution and conviction of the offenders a long process.

Despite legislations that protect individuals from racial discrimination in Victoria, there still exists gaps that are to be addressed if a racial hate crime is to be properly addressed. The aspect of the racial hate crime being categorized as a discrimination crime rather than a criminal crime encourages perpetrators of these crimes. The structures of both the federal and state laws in Victoria encourage the gaps to emerge which limits the laws from covering all incidents of racially motivated crimes (Gelber & Mcnamara, 2016, p. 492). It is unrealistic of anti-vilification laws to be expanded to cover all incidents since it will be too broad and limit other values such as freedom of speech. It is important for policy makers in Victoria to identify these gaps to be able to combat public opinions on racially motivated abuse, to broaden anti-vilification initiatives in the community and to consider resource allocation to these initiatives. Both the Commonwealth and the Victoria laws dictate that only public speech is to be considered and the member should be the person to lodge the complaint. The federal and state law define law in different perception that is almost related. The federal law covers the levels of race, color, nationality and ethnicity, in this regard, Jews are considered as an ethnic group. However, it is unclear whether Muslims are to be considered a minority group under the Australian law (Gelber & Mcnamara, 2016, p. 493). The federal law is unconcerned in regards to incitement and the general effect to the wider audience. Harmonization of the federal and state laws regarding sensitive variations is important to deter racial hate crime in Victoria. The current could be expanded to allow any member of the society to lodge a complaint rather than a member of the targeted group (Gelber & Mcnamara, 2016, p. 509). Another positive change will be to extend the authority of human rights and anti-discrimination authorities to initiate investigations pursue complaints even when the victim does not lodge a legal complaint against the offender. This may allow the victims to get their justice without having to handle the long procedures in the criminal justice system. The laws should extend to include private scenarios that are not in the interest of the public and can be proven beyond doubt.

In conclusion, it is essential to realize that victims in irrespective of the crime undergo issues under the criminal justice system irrespective of the country. In Victoria, there are two laws that fundamentally provide guidelines against racial vilification. The state law is a concern for racial and religious vilification while the state law acknowledges race, color, ethnicity and nationality. The main issues faced by racial victims in Victoria relates to the specification of the laws that acknowledges public conduct but not the private racial offenses. The cumbersome procedures also discourage the victims from pursuing justice. Similarly, the specifications of legal. The definitions related to hate crime in Victoria are some of the issues that affect the discrimination victims in Victoria. The Australian government should increase the authority of human rights authorities to allow them to initiate investigations enabling victims to get their justice. It is important for the state and Commonwealth laws to harmonize which will encourage the perception of justice. The police department should work vigilantly against racial hate crimes as they address other criminal offenses in the country.

References

Foundations for Young Australians, 2010. The Impact of Racism upon the Health and wellbeing of young Australians. Foundation for Young Australians, pp. 1-141.

Gelber, K. & Mcnamara, L., 2016. Anti-vilification laws and public rasicm in Australia: Mapping the gaps between the harms occasioned and the remedies provided. Law Journal, pp. 488-511.

Human Rights Organization, 2002. Racial Vilification Law in Australia. [Online]Available at: https://www.humanrights.gov.au/publication/racial-law-australia [Accessed 27 May 2017].

Jakubowicz, A., 2015. Mapping Progress; Human Rights and International students in Australia. Cosmopolitan Civil Societies; An Interdisciplinary Journal, p. 4473.

Mason , G., 2013. Hate Crime in Australia:Are Thry Achieving Their Goals. University of Sydney law Papers, pp. 1-20.

Mason, G., 2010. Violence against Indian Studetd in Autralia: A question of dignity. Current Issues in Criminal Justice, pp. 461-467.

Mason, G. & Dyer, A., 2012. A Negation of Australia’s Fundamental values; Sentensing prejudice-motivated Crime. Melbourne University Law Review, pp. 871-914.

Nelson, J., 2013. Denial of racism and its impact for local action. Discourse and society, pp. 89 -111.

Office for Democratic Institutions and Human Rights, 2014. prosecuting Hate Crimes. International Association of prosectors, pp. 1-101.

Sentencing Advisory Council, 2009. Sentensing for offences motivated by hatred or prejudice. Sentencing Advisory Council, pp. 1-40.

Thorneycroft, R. & Asquith, N., 2015. Dark Figure of Disablist Violence. The Howard Journal, pp. 489-507.

Victoria Aboriginal Legal Service Co-operative Ltd, 2010. Hate Crime Review:A Review of indentity motivated hate Crime for the Victorian Department of Jutice,. Response to Consultation Issues, pp. 1-7.