The Case for Criminal and Civil Sanctions in Queensland's Racial Vilification Legislation

Abstract

This paper argues that Queensland must enact both criminal and civil sanctions. It examines their different roles and asserts that both are needed to combat racial vilification effectively. It does this in four parts. Part 1 sets the scene by briefly outlining the racial vilification legislation in Australia. It gives an overview of the legislation of the Commonwealth, Queensland, New South Wales, the Australian Capital Territory, South Australia and Western Australia. Part 2 explains the rationale for using civil sanctions to combat racial vilification. It advocates that any civil redress should be through the discrimination law remedies available under the Anti-Discrimination Act 1991 (Qld). This part highlights the strengths of such remedies and focuses particularly on their victim orientation. It also addresses any weaknesses of the civil sanctions. Part 3 justifies the criminalisation of racial vilification by examining the role that criminal sanctions would play in combating hate speech. It focuses on their strong public statement of condemnation as well as their protective function. It also considers some of the flaws that are perceived in criminalisation. Finally, Part 4 examines how the partnership between these two very different sanctions would work. It explains why the discrimination law remedies should play the dominant role, with criminal sanctions being appropriate only in certain limited situations.