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Until now there has been no criminal offence directed at criminalising the inciting of racial hatred in NSW or racial hate speech laws, only a civil action for unlawful racial vilification through the Anti-Discrimination Act 1977 (now the Racial Hatred Act 1995). Our criminal lawyers Sydney team provide you with a run-down on these new laws that have now been introduced in the state of New South Wales.
In response to the recent instances of antisemitic behaviour seen in Sydney, the Crimes Act 1900 (NSW) has been updated with a new offence of inciting racial hatred with the Crimes Amendment (Inciting Racial Hatred) Bill 2025. The purpose of introducing this is to address racially motivated hate speech and antisemitic conduct that have been prevalent in the community acknowledging that racially motivated hate speech and the violence it inspires is a significant threat to social cohesion of the NSW community.
Before this offence, Anti-Discrimination Act 1977 would deal with racial vilification through a conciliation and complaints process that requires an individual complainant or a representative body that promotes the interests or welfare of a group of persons to complain to Anti-Discrimination NSW in order to engage the conciliation and complaints mechanism for addressing it. The new hate crime laws of the intentional incitement of racial hatred offence in New South Wales now can be addressed by police who have the power to prosecute offenders to combat racial hatred.
The new racial hatred laws, being a public order offence under the Crimes Act will be reviewed 12-months after its commencement.
Although not specifically targeting racial hate speech, it can also amount to an offence of offensive language in New South Wales.
What is Racial Hatred? | Racial Vilification Meaning
The new racial hatred and vilification laws make it a crime to intentionally incite hatred towards another person or a group of persons on the ground of race in circumstances that would cause a reasonable person who was the target of the incitement to hatred to fear harassment, intimidation, violence or for their personal safety.
Is Racial Hate Speech Illegal in Australia?
Being racist is illegal. The penalties for inciting racial hatred in New South Wales is found in section 93ZAA(1) of the Crimes Act 1900 (NSW) which prescribes up to two years imprisonment and/or $11,000 fine for committing the crime of intentionally inciting hatred by a public act against a person or group based on their race. A corporation who commits this offence will face penalties of up to a $55,000 fine.
This offence does not apply to an act that consists only of directly quoting from or otherwise referencing a religious text for purposes of religious teaching.
It is irrelevant, when determining whether an alleged offender has committed this offence:
- Whether his or her assumptions or beliefs about the race of another person or member of a group of people were correct or incorrect when committing the offence, or
- Whether or not, in response to the alleged offender's public act, any person formed a state of mind or carried out an act of hatred.
What are the Defences?
Section 93ZAA(2) provides a defence to the offence of inciting racial hatred. This defence applies to an act that consists only of directly quoting from or otherwise referencing a religious text for purposes of religious teaching.
This means that it is a lawful excuse to incite racial hatred if you are doing it for religious teaching by referring to any religious text. A religious text will include a Quran or bible.
The Meaning of a "Public Act"
A "public act" means any form of communication (including speaking, writing, displaying notices, graffiti, playing of recorded material, broadcasting and communicating through social media and other electronic methods) to the public, and any conduct (including actions gestures and the wearing or display of clothing, signs, flags, emblems and insignia) observable by the public, and the distribution or dissemination of any matter to the public. This non-exhaustive definition is found in section 93Z(5) of the Crimes Act. any act may be public act even if it occurs on private land.
The Meaning of "Race"
"Race" means colour, nationality, descent and ethnic, ethno-religious or national origin. This definition is found in section 93Z(5) of the Crimes Act.
More on the new hate speech laws can be found in the second reading speech here.
Other Offences of Public Threats or Incitement of Violence On Grounds of Race, Religion, Sexual Orientation, Gender Identity or HIV
Division 8 of Part 3A of the Crimes Act 1900 prescribes up to 3 years imprisonment and/or $11,000 fine to any person who, by a public act, intentionally or recklessly threatens or incites violence towards another person or a group of persons on any of the following grounds:
- Race,
- A specific religious belief or affiliation,
- Sexual orientation,
- Gender identity,
- Intersex status,
- HIV or AIDS,
When determining whether or not an offence has been committed, the law says that it is irrelevant whether the alleged offender's assumption or beliefs about an attribute of another person or member of a group of persons referred to above were correct or incorrect at the time that the offence is alleged to have been committed when determining whether an alleged offender has committed this offence.
Other hate crime offences that the NSW Crimes Act is found in section 93ZA of displaying Nazi symbols. This offence carries penalties of up to 2 years imprisonment and/or a fine of up to $22,000 fine if displayed on or near a synagogue, Jewish school or the Sydney Jewish Museum. Displaying it anywhere else carries penalties of up to 12 months' imprisonment and/or $11,000 fine.
A lawful excuse for displaying a Nazi symbol in NSW include:
- The display of a swastika in connection with Buddhism, Hinduism or Jainism,
- A reasonable excuse for displaying a Nazi symbol. A reasonable excuse includes displaying it reasonably and in good faith for academic, artistic or educational purposes, or for another purpose in the public interest.
What is the Racial Hatred Act 1995 (Commonwealth)?
The Racial Hatred Act was introduced in 1995 amending the Racial Discrimination Act allowing people to lodge a complaint concerning any publicly racial offensive or abusive behaviour. Examples of racial hatred behaviour it targets include making offensive racist remarks in a publication; racist abuse in public place(s); racist posters in public place(s); making racist speeches in a public rally.
This Act allows people to complain directly to the Australian Human Rights Commission with the purpose of balancing the freedom of communication against the right to be free from racial vilification.
How are complaints handles? Upon receiving a complaint, the Australian Human Rights Commission will try to resolve it via a process of conciliation that usually results in a resolution such as an apology. If conciliation fails, the complaint can make its way to the Federal Court or the Federal Circuit Court.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
