How Criminal Defence Lawyers Deal with Hate Crimes
A criminal defence lawyer is well-versed in the laws that govern racial abuse in Australia. These laws cover public behaviour and do not look at personal beliefs.
In modern society, it is easy for people to voice their opinions through platforms with greater reach. And while freedom of speech is a right, you cannot exercise it at the expense of other people.
The line that divides freedom of speech from hate speech often gets blurred, and serious sanctions will follow if you find yourself on the wrong side of the law. Victoria has also recently strengthened its laws in this area. Criminal defence lawyers have the expertise to navigate this space.
Laws in Place
In Victoria, it is unlawful to vilify someone or a group of people in public based on their race or religion. Vilification is behaving in a way that stirs up hatred or mocks a person or group based on those attributes.
In public, it is also illegal to act in a manner that is racially derogatory or abusive to people due to their race, nationality, or ethnicity.
Racial and Religious Vilification
Racial and religious vilification is regulated by the Racial and Religious Tolerance Act 2001.
Racial and religious vilification involves the following:
- Spreading racist comments in print, on the web, and on social media.
- Speaking at a gathering or at a public rally in a manner that incites hatred against certain races or religions.
- Creating or displaying racist graffiti, posters, or stickers.
Under the Racial Discrimination Act 1975, it is against the law to behave in public in a way that is:
- Based on the race, colour, nationality, or ethnicity of someone; and
- Will probably offend, insult or degrade that person or group.
A public place includes any place where the public can enter, such as the following:
- Shops.
- Roads.
- Places of Employment.
- Public transport.
- Sports facilities.
This also applies to public communication, such as newspapers, leaflets or brochures, TV and radio stations, or the internet.
How These Allegations Usually Arise
Allegations tend to come from a few common situations:
- Social media posts or comments that someone screenshots and reports.
- Heated public incidents, often captured on a phone camera.
- Workplace disputes, where a falling-out leads to complaints about things said in person or in a group chat.
If an incident involves physical aggression as well as abusive language, the benefits of a criminal defence lawyer when facing violent behaviour charges become even clearer.
Civil Complaints Versus Criminal Charges
Not every complaint ends up in a criminal court. Some conduct leads to a civil complaint through a human rights or equal opportunity body, where the focus is generally on resolution, such as an apology. More serious conduct can attract criminal charges, which put far more at stake. A lawyer can tell you which pathway you are actually facing.
How Online Conduct Is Investigated
Many modern allegations start online. Deleted posts may already have been screenshotted or archived, account records and message histories can be obtained, and anonymous accounts are rarely as anonymous as users assume.
The full context of an exchange, including what was said to you first, can also support a defence, so preserve material. Deleting content after you learn of a complaint can itself create problems.
Exemptions
Some acts are exempted if done 'reasonably and in good faith'.
The following are exceptions:
- An artistic creation or performance.
- A publication, conversation or debate on a matter regarded as being in the public's interest.
- A fair and true report on an issue of public interest.
- A fair remark on an event or matter of public interest if that remark expresses someone's genuine belief.
A good lawyer understands that these exceptions are in place to protect the rights to freedom of speech and expression and will know when they apply.
Why Context and Intent Matter
What was said, where, to whom, and why all matter. A comment in a private argument sits differently to a post seen by thousands, and genuine debate sits differently to targeted abuse. None of this excuses hateful conduct, and the harm it causes is real. But similar incidents can lead to very different outcomes, and a defence lawyer's job is to put the full context in front of the decision-makers.
Racial Motivation adds to the severity of the crime
Prejudice is an aggravating factor and can occur as part of any criminal act. It makes crimes worse because racial prejudice affects the whole community and not just that specific victim alone.
Victoria law enforcement does not take racially motivated hate crimes lightly. Engaging a lawyer knowledgeable in this field is still a good idea to ensure the protection of rights.
What to Do if Police Want to Interview You
The first police interview can shape the whole matter.
- You generally have the right to remain silent beyond providing your name and address.
- Politely decline to answer questions until you have spoken to a lawyer.
- Do not contact the complainant or witnesses, and do not delete posts or messages.
Get advice before the interview, not after.
How a Defence Lawyer Approaches These Matters
A defence lawyer starts by testing what the prosecution can actually prove: the words used, the setting, the recordings or screenshots, and the reliability of witnesses. They consider whether an exemption applies and whether the matter can be resolved outside a courtroom.
Where an allegation involves a physical altercation as well, experienced assault lawyers in Melbourne can run the related charges as one coherent defence. And because complainants sometimes reconsider, it helps to understand how charges against someone for assault can be dropped, noting the decision rests with the prosecution, not the complainant.
The same approach applies across all sensitive allegations, mirroring the way criminal defence lawyers help people facing sexual assault allegations: take the accusation seriously, protect the client's rights, and make sure the case is decided on evidence, not assumption.
Conclusion
The law cannot change your personal views and opinions, but it has been created to protect people from racially hateful acts or language.
Discrimination law can be complicated or confusing. If you want to understand your rights, defences, and legal position, you can contact us for legal guidance. If you are a victim of a hate crime, you can also seek legal advice on the way forward.
In an opinionated and progressive world, seeking legal advice on contentious issues is always in your best interest, or you may land yourself in hot water.
Sources
Vilification and acts of hatred | Victoria Legal Aid
Hate (prejudice-motivated) crime and incidents | Victoria Police
