Commonwealth and NSW Hate Crime Offences

The Commonwealth and NSW Governments have recently enacted new hate crime offences in response to an escalation in antisemitic violence.

In 2025, new Commonwealth hate crime offences were added to the Criminal Code (Cth) and the penalties for existing offences were increased.

Advocating violence against groups

Section 80.2A of the Criminal Code (Cth) makes it a criminal offence to advocate force or violence against groups.

The prosecution must prove beyond reasonable doubt that:

1. The accused intentionally advocates the use of force or violence against a group.
2. The accused was reckless as to whether force or violence would occur.
3. The accused was reckless that the targeted group was distinguished by race, religion, sex, sexual orientation, gender identity, intersex status, disability, nationality, national or ethnic origin or political opinion.

A person advocates force or violence if they counsel, promote, encourage or urge force or violence (s 80.2A(6) Criminal Code (Cth)).

The maximum penalty is imprisonment for 7 years. If the use of force or violence would threaten the peace, order and good government of the Commonwealth, the maximum penalty is imprisonment for 10 years.

Advocating violence against members of groups or close associates

Section 80.2B of the Criminal Code (Cth) makes it a criminal offence to advocate force or violence against members of groups or close associates.

The prosecution must prove beyond reasonable doubt that:

1. The accused intentionally advocates the use of force or violence against a person.
2. The accused was reckless as to whether force or violence would occur.
3. The accused believed the person is a member of a group or a close associate of a member of a group.
4. The accused was reckless that the targeted group was distinguished by race, religion, sex, sexual orientation, gender identity, intersex status, disability, nationality, national or ethnic origin or political opinion.

It does not matter if the targeted person was actually a member of a group or was actually an associate of a member of a group (s 80.2B(3)).

A close associate includes close family members (e.g. spouse, de-facto, parent, grandparent, child, brother, sister) or if the person has a disability, a carer or assistant (s 80.1A).

The maximum penalty is imprisonment for 7 years. If the use of force or violence would threaten the peace, order and good government of the Commonwealth, the maximum penalty is imprisonment for 10 years.

Threatening force or violence against groups

Section 80.2BA of the Criminal Code (Cth) makes it a criminal offence to threaten force or violence against groups.

The prosecution must prove beyond reasonable doubt that:

1. The accused intentionally threatens to use force or violence against a group.
2. The accused was reckless that the targeted group was distinguished by race, religion, sex, sexual orientation, gender identity, intersex status, disability, nationality, national or ethnic origin or political opinion.
3. A reasonable member of the targeted group would fear that the threat will be carried out.

The maximum penalty is imprisonment for 7 years. If the threat carried out would threaten the peace, order and good government of the Commonwealth, the maximum penalty is imprisonment for 10 years.

If the accused is a religious official, spiritual leader, or a leader of a group that provides religious instruction or pastoral care (whether religious or secular), they may commit an aggravated offence under s 80.2DA of the Criminal Code (Cth).

Threatening force or violence against members of groups or close associates

Section 80.2BB of the Criminal Code (Cth) makes it a criminal offence to threaten force or violence against members of groups or close associates.

The prosecution must prove beyond reasonable doubt that:

1. The accused intentionally threatens to use force or violence against a person.
2. The accused believed the person is a member of a group or a close associate of a member of a group.
3. The accused was reckless that the targeted group was distinguished by race, religion, sex, sexual orientation, gender identity, intersex status, disability, nationality, national or ethnic origin or political opinion.
4. A reasonable member of the targeted group would fear that the threat will be carried out.

It does not matter if the targeted person was actually a member of a group or was actually an associate of a member of a group (s 80.2BB(3)).

The maximum penalty is imprisonment for 7 years. If the threat carried out would threaten the peace, order and good government of the Commonwealth, the maximum penalty is imprisonment for 10 years.

Advocating damage or destruction to property or vehicle

Section 80.2BC of the Criminal Code (Cth) makes it a criminal offence to advocate damage or destruction of property or vehicles.

The prosecution must prove beyond reasonable doubt that:

1. The accused intentionally advocates the causing of damage to, or the destruction of, property or a motor vehicle.
2. The accused believes that:
   1. The property is a place of worship of a group
   2. The property or motor vehicle is owned or occupied by one or more members of a group
   3. The property or motor vehicle is owned or occupied by a close associate of one or more members of a group
3. The accused was reckless as to whether damage or destruction will occur
4. The accused was reckless that the targeted group was distinguished by race, religion, sex, sexual orientation, gender identity, intersex status, disability, nationality, national or ethnic origin or political opinion.

The maximum penalty is imprisonment for 7 years. If the damage or destruction, were it to occur, threatened the peace, order and good government of the Commonwealth, the maximum penalty is imprisonment for 10 years.

Threatening to damage or destroy property or vehicle

Sections 80.2BD of the Criminal Code (Cth) makes it a criminal offence to threaten to damage or destroy property or vehicles.

The prosecution must prove beyond reasonable doubt that:

1. The accused intentionally threatens to cause damage to, or the destruction of, property or a motor vehicle.
2. The accused believes that:
   1. The property is a place of worship of a group
   2. The property or motor vehicle is owned or occupied by one or more members of a group
   3. The property or motor vehicle is owned or occupied by a close associate of one or more members of a group
3. The accused was reckless that the targeted group was distinguished by race, religion, sex, sexual orientation, gender identity, intersex status, disability, nationality, national or ethnic origin or political opinion.
4. A reasonable member of the targeted group would fear that the threat will be carried out

The maximum penalty is imprisonment for 7 years. If the threat were carried out and threatened the peace, order and good government of the Commonwealth, the maximum penalty is imprisonment for 10 years.

New offence of inciting hatred in New South Wales

As of August 2025, under s 93ZAA of the NSW Crimes Act 1900 it is an offence to publicly incite hatred against a person or group because of their race.

The prosecution must prove beyond reasonable doubt that:

1. The accused, by a public act, intentionally incites hatred towards another person or a group of persons on the ground of race
2. A reasonable person targeted by the hatred, or a reasonable member of a targeted group, feared harassment, intimidation, violence, or feared for their safety.

It does not matter if the accused’s assumptions or beliefs about the race of another person or a member of a group of persons were correct or incorrect (s 93ZAA(3)(a)). It also does not matter if, in response to the accused’s public act, any person carried out an act of hatred (s 93ZAA(3)(b)).

No offence is committed if the accused’s public act consisted only of quoting from or referencing a religious text for the purpose of religious teaching or discussion (s 93ZAA(2)).

The maximum penalty is imprisonment for 2 years or a fine of $11,000 or both.

What is a public act?

Section 93Z of the Crimes Act 1900 (NSW) defines a public act as:

1. 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
2. any conduct (including actions and gestures and the wearing or display of clothing, signs, flags, emblems and insignia) observable by the public
3. the distribution or dissemination of any matter to the public.

An act may be a public act even if it occurs on private land.

Should you or someone you know be charged with an offence, it is essential you receive legal advice from an experienced criminal defence lawyer at any early stage. To discuss your options, call Hugo Law Group in Sydney (02 9696 1361), Canberra (02 5104 9640) and Perth (08 6255 6909) to make an appointment to speak to one of our lawyers.