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‘I felt fear, humiliation’: Aboriginal elder joins push to change hate crime laws

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“We know that the act is not working effectively to prevent or respond to hate conduct,” VEOHRC Commissioner Kristen Hilton told the inquiry this week.

The commissioner said there has been a pattern of persistent hate and fear in parts of the community, including anti-Semitic and Islamaphobic abuse, a Nazi flag was flown over a house in regional Victoria and ongoing abuse of African-Australians.

Ms Clarke said racism for Aboriginal people was a lifelong burden. She has been spat on, refused service and, at primary school, called an “Abo” in the playground.

In Warrnambool, she said, a curfew for Indigenous people was in place until the 1940s and “blacks” were to be out of town and out of sight.

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“Many of my elders remember well being chased by police or yelled at by locals to ‘get back to the mission’,” Ms Clarke said.

“There is a palpable wound that festers in these places and it’s the generations raised here that inherit its attitudes and scars.”

Ms Clarke was eating out last December when she overheard a teenage boy at another table making a litany of racist remarks – fuelled by the closure of Uluru to climbers – to his brother, mother and two other adults.

She approached the group and politely told the teenager about the connection to country Indigenous people felt and how some places were like churches and memorials to them.

“His mother told him ‘don’t listen to those people’,” Ms Clarke said.

“The young man became aggressive towards me, calling me an Abo, a stupid Abo and told the others that he wished the Abo would just shut up.

Charmaine Clarke on the campaign trail in Northcote in 1998 when she was the Greens' lead candidate for the Senate.

Charmaine Clarke on the campaign trail in Northcote in 1998 when she was the Greens’ lead candidate for the Senate.Credit:Mario Borg

“I felt fear, humiliation, I was shaking, embarrassed and deeply shamed.”

Ms Clarke decided to pursue a case of racial vilification.

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“When is it going to stop, if it’s left unchallenged?” she said.

She spoke to a police officer who has close ties with the Indigenous community, who, like Ms Clarke, had never undertaken an application under the Racial and Religious Tolerance Act 2001.

The formal complaint prompted an apology from the cafe, who worked with police to gather information.

But the complaint didn’t meet the high legal threshold to prove vilification had occurred.

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“This was a shock to me and a great disappointment and immense source of frustration,” Ms Clarke said.

“If we are to commit to laws that facilitate change and reflect our values and conduct in a society, then they need to be accessible to those like me who seek its protection.”

Ms Hilton said there has been only two successful cases before the Victorian Civil and Administrative Tribunal and one successful prosecution of serious vilification.

A major hurdle in the act is the requirement to show the conduct could incite others to feel hatred, contempt or revulsion for the victim.

The commission has recommended changing the wording of the law from “incites” hate to conduct that “expresses or is reasonably likely to incite hate or strong feelings.”

Ms Hilton also called for stronger powers, including allowing the commission to compel the provision of documents to identify perpetrators who hide behind online anonymity.

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