The Australian Government recently updated national hate crime laws and the NSW Government is proposing similar updates to NSW laws. This explainer is designed to help readers better understand these changes and the potential human rights implications.
New national hate crime laws
On Thursday 6 February 2025, the Federal Parliament passed the Criminal Code Amendment (Hate Crimes) Bill 2025 (Cth). The new laws are widely seen as a response to the recent surge in antisemitic violence in Australia. The bill amends the existing hate crime provisions in the Criminal Code Act 1995 (Cth). Key changes include:
Expanded offences: It was already a serious criminal offence under federal law to urge force or violence against specific groups and members of those groups, including those distinguished by race, religion, or national origin. These new laws strengthen some existing offences within the Criminal Code. Sections 80.2A and 80.2B now criminalise 'advocating' force or violence against specific groups, members of those groups and their close associates, including those distinguished by sex, sexual orientation, gender identity, intersex status and disability. These offences no longer require an intention that the force or violence actually occurs. Instead, it is enough if a person is 'reckless' as to whether force or violence occurs. Existing offences prohibiting the display of Nazi symbols, the Nazi salute and terrorist organisation symbols have also been expanded to protect groups distinguished by the broader list of attributes.
New offences: The laws introduce a number of new offences, including threatening to use force or violence against protected groups, their members and close associates, and either advocating or threatening damage to, or destruction of, places of worship or property owned or occupied by members of a protected group or their close associates. These offences protect groups distinguished by race, religion, sex, sexual orientation, gender identity, intersex status, disability, nationality, national or ethnic origin or political opinion. The exception to this is the offence of advocating force or violence against a group through causing damage to property (which includes minor damage such as painting a slogan on a building) which only applies to groups distinguished by race, religion or ethnic origin.
Mandatory minimum sentences: The new laws increase the maximum penalties for the offences relating to the display of Nazi symbols, the Nazi salute and prohibited terrorist organisation symbols from one year to five years, and impose mandatory minimum sentences of 12 months' imprisonment for these offences. They also impose mandatory minimum sentences for certain terrorism-related offences ranging from one to six years.
New NSW hate crime laws
The NSW Government is in the process of introducing tougher hate crime laws in response to the recent escalation of violent antisemitism in NSW. Key changes that were introduced into Parliament over the last 10 days include:
Expanded offences: The Crimes Act 1900 (NSW) currently contains an offence of displaying a Nazi symbol, by public act and without reasonable excuse. This offence is punishable by a maximum of 12 months' imprisonment. Proposed amendments would introduce a new specific offence for displaying Nazi symbols on or near synagogues, Jewish schools and the Sydney Jewish Museum, with a maximum penalty of two years. The meaning of 'public act' for the offences of threatening or inciting violence and the offences of displaying Nazi symbols, which currently includes 'writing', would be expanded to also specifically include 'graffiti'.
New offences: The amendments would introduce new offences for intentionally blocking a person from accessing or leaving places of worship without reasonable excuse, and for harassing, intimidating or threatening people accessing or leaving these places, with a maximum penalty of two years. The NSW Government has also introduced into Parliament new laws to create a new criminal offence for intentionally and publicly inciting racial hatred, with a proposed maximum penalty of two years' imprisonment, fines of up to $11,000, or both, and with fines of $55,000 for corporations.
Expanded police powers: The proposed laws would empower police officers to issue move on directions for demonstrations and protests if they occur in or near a place of worship.
Aggravating circumstances: The amendments would expand the aggravating circumstances that apply to sentencing to include when an offence is partly, rather than just wholly, motivated by hatred or prejudice. Proposed amendments to the Graffiti Control Act 2008 (NSW) would also expand the circumstances of aggravation for graffiti offences where they relate to places of worship. An aggravated offence permits tougher sentencing by judges.
Background
The narrow scope of these laws, which focus only on violence relating to race and religion, has been criticised, with it being suggested that they should be expanded to also protect (for example) other vulnerable groups such as LGBTIQ+ people and people with disability.
Last year, the NSW Law Reform Commission was tasked with reviewing s 93Z of the Crimes Act and report on its effectiveness in addressing serious racial and religious vilification in NSW. While their report acknowledged 'the significant impact that hate-based conduct has on individuals, groups and our wider community', it concluded that s 93Z should not be amended.
Human rights implications
Both the federal laws and proposed NSW laws aim to address hate crimes, and have been introduced in response to the increase in incidents of racial hatred and violence seen recently in Australia, particularly antisemitism. The laws are intended to protect human rights by ensuring equality, non-discrimination and security of person, safeguarding individuals from targeted violence and intimidation.
At the same time, the laws raise a number of specific human rights concerns, notably in relation to freedom of expression, the right to peaceful assembly, and mandatory minimum sentencing.
Freedom of expression: Freedom of expression is a fundamental human right that allows individuals to share their opinions and ideas without undue interference or censorship. While these laws aim to protect individuals from harm and uphold equality, they also raise concerns about where the boundary between harmful speech and legitimate expression should be drawn. Striking a balance between protecting free speech and preventing harm is a key challenge in implementing hate speech laws. To the extent that the new laws criminalise advocating or threatening physical force or violence, they will be a legitimate restriction on freedom of expression. Proposals that go beyond this to, for example, criminalise the promotion of hatred, require careful scrutiny. Guidelines developed by the United Nations emphasise that the criminalisation of hate speech should be a last resort, and reserved for the most severe forms of incitement to discrimination, hostility and violence. The NSW Law Reform Commission recently expressed concern that terms like 'hatred' are imprecise and subjective, with this ambiguity making them 'an inappropriate standard for the criminal law'.
The right to peaceful assembly: The right to peaceful assembly is critical in a democracy. While it can be restricted to ensure public safety and protect the rights and freedoms of others, any limits must be lawful, necessary and proportionate. The proposed laws are designed specifically to protect people exercising their freedom to worship, repeat language (such as 'harass, intimidates or threaten') already well known to the law and contain a number of exemptions, including for authorised public assemblies. However, the provisions also use language that is less precise and imposes substantially greater penalties than similar laws, as well as expanding police powers. The proposed NSW laws should be referred to a parliamentary committee to ensure an appropriate balance is struck between the different human rights that will be impacted.
Mandatory minimum sentencing: Mandatory minimum sentencing laws require courts to deliver a minimum penalty for particular offences. The Australian Human Rights Commission has consistently opposed mandatory sentencing laws because they undermine judicial independence and the ability of courts to ensure that the punishment fits the crime, as well as having an unfair impact on disadvantaged groups. The Commission maintains that courts are best placed to weigh up all the relevant circumstances and impose an appropriate penalty for criminal offences.
