Hate crime laws in Australia aim to prevent and punish conduct that incites hatred, violence, or discrimination against individuals or groups based on protected characteristics such as race, religion, gender identity, sexuality, disability and other characteristics. These laws vary across federal, state and territory jurisdictions.
Our criminal lawyers Sydney team outline Australia's hate crime laws, including federal legislation and the approaches taken by different states and territories. It examines discrete criminal offences relating to incitement, vilification, the display of hate symbols, as well as the degree to which hate motivations are taken into account at sentencing.
Federal Hate Crimes Laws
Recently, the Commonwealth parliament passed fresh laws introducing a number of hate crimes at a Federal level. These include a number of fresh offences under the Criminal Code Act 1995 (Cth) which applies across all of Australia's state and territories.
Under section 80.2A of the Code, it is an offence to advocate force or violence against protected groups based on race, religion, sex, sexual orientation, gender identity, intersex status, disability, nationality, national or ethnic origin or political opinion. The maximum penalties for this offence is 7 years imprisonment, if the use of force or violence would likely threaten the peace, order and good government of the Commonwealth; or 5 years if the act does not reach this threshold.
Under section 80.2B of the Code, it is an offence to advocate force or violence against an individual due to their membership or association with protected groups. The maximum penalties for this offence are imprisonment for 7 years if the use of force or violence would likely threaten the peace, order and good government of the Commonwealth, or 5 years if the act does not reach this threshold.
Similar offences also exist for making threats that a member of the targeted group would fear being carried out (section 80.2BA-BB) as well as offences related to the advocacy of damage to or destruction of real property or motor vehicles of protected groups as well as places of worship (sections 80.2BC - 80.2BE).
Earlier reforms have introduced discrete offences relating to the display of prohibited symbols, including Nazi symbols, in a public place. Under section 80.2H of the Code, it is an offence to publicly display a prohibited Nazi symbol or perform a Nazi salute if the act involves disseminating ideas of racial superiority, incites racial hatred, or is likely to offend, insult, humiliate, or intimidate individuals based on protected attributes such as race, religion, gender or nationality. This offence carries a maximum penalty of 5 years imprisonment.
Finally, section 18C of the Racial Discrimination Act 1975 (Cth) makes it unlawful to engage in public acts that are reasonably likely to offend, insult, humiliate, or intimidate another person or group based on their race, colour, or national or ethnic origin. The provision applies to acts conducted in public, including verbal, written or visual communication accessible to the public. Complaints regarding breaches of this provision can be made to the Australian Human Rights Commission under the Australian Human Rights Commission Act 1986 (Cth).
New South Wales Hate Crime Laws
NSW carries a number of offences dealing with hatred directed at protected groups, as well as the aggravation of sentences for hate-related crimes.
Under section 93Z of the Crimes Act 1900 (NSW) it is an offence to publicly threaten or incite violence against a person or group based on race, religion, sexual orientation, gender identity, intersex status, or HIV/AIDS status. This offence applies whether the act is committed intentionally or recklessly and includes verbal, written, symbolic, or digital communication accessible to the public. The maximum penalty of this offence is a fine of 100 penalty units or 3 years imprisonment (or both) for an individual, or a fine of 500 penalty units for a corporation.
Under section 93ZA of the Act, it is an offence to knowingly display a Nazi symbol in public without a reasonable excuse. Stricter penalties apply if the display occurs near a synagogue, Jewish school, or the Sydney Jewish Museum, with a maximum penalty of a fine of 200 penalty units or 2 years imprisonment for individuals and a fine of 1,000 penalty units for corporations. In all other public settings, the maximum penalty is a fine of 100 penalty units or 12 months imprisonment for individuals and a fine of 500 penalty units for corporations.
Provisions under the Anti-Discrimination Act 1977 (NSW) also make it unlawful to vilify a person on the basis of race (section 20C), homosexuality (section 49ZT), transgender status (section 38S), HIV/AIDS status (section 49ZXB) or religion (section 49ZE). However, these are civil provisions rather than criminal offences, meaning they do not carry criminal penalties but may result in civil remedies such as orders to cease the conduct, apologies or compensation.
Finally, hate motivations may also be considered an 'aggravating factor' at sentencing under section 21A(2)(h) of the Crimes (Sentencing Procedure) Act 1999 (NSW), meaning a judge may impose a harsher penalty if a criminal offence was motivated by hostility towards a person or group based on protected characteristics. Sentencing aggravation was recently also extended to hate-related graffiti with amendments to the Graffiti Control Act 2008 (NSW).
Hate Crime Laws in Victoria
Victoria carries a number of offences dealing with hatred directed at protected groups, as well as the aggravation of sentences for hate-related crimes
Under section 41K of the Summary Offences Act 1966 (Vic), it is an offence to intentionally display or perform a Nazi symbol or Nazi gesture in a public place, a non-government school, or a post-secondary education institution where the offender knows, or ought reasonably to know, the symbol or gesture's Nazi association. The maximum penalty is a fine of 120 penalty units or 12 months' imprisonment (or both).
Further, provisions under the Racial and Religious Tolerance Act 2001 (Vic) make it generally unlawful to vilify a person on the basis of race (section 7) or religion (section 8). These are civil provisions rather than a criminal offence. Criminal offences do exist under the Act for serious forms of racial (section 24) or religious (section 25) vilification where threats or incitement are to physically harm. The maximum penalties of serious vilification are 6 months imprisonment or a fine of 60 penalty units (or both) for an individual or a fine of 300 penalty units for a corporation. Separate vilification offences for LGBT people have also been recently proposed.
Finally, hate motivations may also be considered an 'aggravating factor' at sentencing under section 5(2)(daaa) of the Sentencing Act 1991 (VIC), meaning a judge may impose a harsher penalty if a criminal offence was motivated by hostility towards a person or group based on protected characteristics.
Queensland Hate Crime Laws
Queensland carries a number of offences dealing with hatred directed at protected groups, as well as the aggravation of sentences for hate-related crimes
Under section 52A of the Criminal Code 1899 (Qld), it is an offence to engage in serious vilification by a public act, including where a person knowingly or recklessly incites hatred, serious contempt, or severe ridicule towards a person or group based on their race, religion, sexuality, or gender identity. This offence is committed if the vilification involves threats of physical harm or incites others to make such threats against the person or their property. A "public act" is broadly defined to include communication through speech, writing, broadcasting, electronic means, and visible conduct such as gestures, clothing, or symbols. This offence carries a maximum penalty of three years imprisonment.
Further, section 52D of the Code criminalises the public distribution, publication, or display of prohibited symbols in a manner that could reasonably be expected to cause a member of the public to feel menaced, harassed, or offended. Public display includes visibility in places accessible to the public, such as streets, businesses, and online platforms. The maximum penalty for this offence is 70 penalty units or six months imprisonment. Section 52C of the Act defines "prohibited symbols" as symbols or images prescribed by regulation that are widely recognised as representing an ideology of extreme prejudice against a specific group based on race, religion, sexuality, sex characteristics, or gender identity.
Under section 124A of the Anti-Discrimination Act 1991 (Qld), it is unlawful to engage in vilification by a public act that incites hatred, serious contempt, or severe ridicule towards a person or group based on their race, religion, sexuality, sex characteristics, or gender identity. However, these are civil provisions rather than criminal offences.
Finally, hate motivations may also be considered an 'aggravating factor' for certain prescribed offences at sentencing under section 52B of the Criminal Code 1899 (Qld), meaning a judge may impose a harsher penalty if a criminal offence was motivated by hostility towards a person or group based on protected characteristics.
Western Australian Hate Crime Laws
Western Australia carries a number of offences dealing with hatred directed at protected groups, as well as the aggravation of sentences for hate-related crimes largely dealing with racist speech.
Under the Criminal Code 1899 (WA), it is a crime to engage in conduct that incites or is likely to incite racial animosity or harassment (sections 77-78). If the conduct is intentional, the penalty is up to 14 years imprisonment, while conduct that is merely likely to incite carries a penalty of up to five years. Similar penalties apply for possessing material intended to incite racial animosity (section 79) or material likely to do so (section 80).
Separate offences also exist for conduct specifically intended to racially harass (section 80A) carrying a maximum penalty of five years imprisonment, or likely to harass (section 80B) carrying a penalty of three years imprisonment. Possessing material for display with the intent to racially harass (section 80C) carries a maximum penalty of five years imprisonment, while possessing material likely to harass (section 80D) carries a maximum of three years imprisonment.
Further, section 80O of the Code , it is a criminal offence to publicly display a Nazi symbol, carrying a maximum penalty of five years imprisonment. A person also commits an offence if they display a Nazi symbol on private property without the consent of the person in control of the property. The offence does not apply to individuals under 18 years of age. A lower penalty applies for summary convictions, with a maximum of two years imprisonment and a $24,000 fine. A "Nazi symbol" includes the Nazi hakenkreuz (swastika), Nazi flag, SS bolts, Nazi eagle and images of Nazi salutes.
Section 80P also criminalises making a Nazi salute or a gesture closely resembling a Nazi salute in a public place with intent for it to be perceived as such. A person can be convicted regardless of whether anyone witnesses the gesture. Making a Nazi salute on private property without the consent of the property owner is also an offence. The maximum penalty for either offence is five years imprisonment, or on summary conviction, two years imprisonment and a $24,000 fine. Individuals under 18 are exempt from liability under this provision.
Finally, section 80Q makes it an offence to apply a Nazi symbol to public property or another person's property without consent. This includes drawing, painting, scratching, or otherwise marking property with such a symbol. The penalty for this offence is up to five years imprisonment, with a summary conviction penalty of two years imprisonment and a $24,000 fine. Persons under 18 are not subject to this offence.
Hate motivations may also be considered an 'aggravating factor' if racially motivated for certain prescribed offences at sentencing under Code, meaning a judge may impose a harsher penalty if a criminal offence was motivated by hostility towards a person or group based on race.
South Australian Hate Crime Laws
South Australia has less extensive hate crime laws compared to other jurisdictions.
Under section 4 of the Racial Vilification Act 1996 (SA), it is an offence to incite hatred, serious contempt, or severe ridicule towards a person or group based on race through a public act. This includes making threats of physical harm or inciting others to make such threats against individuals or their property. The maximum penalty for a body corporate is a $25,000 fine, while for an individual, the penalty is a $5,000 fine, imprisonment for up to three years, or both.
Further, hate motivations may be considered an 'aggravating factor' at sentencing under section 11 of the Sentencing Act 2017 (SA), meaning a judge may impose a harsher penalty if a criminal offence was motivated by hostility towards a person or group based on protected characteristics.
Tasmanian Hate Crime Laws
Tasmania carries a number of offences dealing with hatred directed at protected groups, as well as the aggravation of sentences for hate-related crimes
Under section 6C of the Police Offences Act 1935 (Tas), it is an offence to publicly display a Nazi symbol without a legitimate public purpose, knowing or having reason to know that it is a Nazi symbol. The maximum penalty for a first offence is a fine of 20 penalty units or three months imprisonment, increasing to 40 penalty units or six months imprisonment for a second offence within six months.
Section 6D prohibits performing a Nazi gesture, such as the Nazi salute, in public or in a location where it could be visible to the public, if the person knows or ought to know that it is a Nazi gesture. The maximum penalty is a fine of 20 penalty units or three months imprisonment, increasing to 40 penalty units or six months imprisonment for a second offence within six months.
Under section 19 of the Anti-Discrimination Act 1998 (Tas), it is unlawful to incite hatred, serious contempt, or severe ridicule towards a person or group through a public act based on their race, disability, sexual orientation, lawful sexual activity, religious belief or affiliation, religious activity, gender identity, or sex characteristics. However, this is a civil provision rather than a criminal offence.
Finally, hate motivations may also be considered an 'aggravating factor' at sentencing under section 11B of the Sentencing Act 1997 (Tas), meaning a judge may impose a harsher penalty if a criminal offence was motivated by hostility towards a person or group based on protected characteristics.
Northern Territory Hate Crime Laws
The Northern Territory is the only jurisdiction in Australia without legislation that makes public incitement to acts of hatred either an unlawful act, a criminal offence, or both.
Nevertheless, hate motivations may be considered an 'aggravating factor' at sentencing under section 6A of the Sentencing Act 1995 (NT), meaning a judge may impose a harsher penalty if a criminal offence was motivated by hostility towards a person or group based on protected characteristics.
Australian Capital Territory Hate Crime Laws
The Australian Capital Territory does not make hate-related conduct or speech a criminal offence or sentencing aggravation.
Nevertheless, under section 67A of the Discrimination Act 1991 (ACT), it is unlawful to incite hatred, revulsion, serious contempt, or severe ridicule against a person or group based on disability, gender identity, HIV/AIDS status, race, religious conviction, sex characteristics, or sexuality, except in private settings. Public acts of vilification include broadcasting, social media posts, public speeches, gestures, and the display of signs or symbols. However, these are civil provisions rather than criminal offences, meaning they do not carry criminal penalties but may result in civil remedies such as orders to cease the conduct, apologies or compensation.
Defences and Exceptions to Hate Crime Laws
Hate crime laws at a Federal, State and Territory level carry a number of exceptions or defences which may be raised.
In regard to offences related to the incitement, vilification and harassment of others based on protected characteristics, it is generally a defence if the conduct was engaged in reasonably and in good faith for legitimate public purposes. These defences cover academic research, artistic expression, media reporting, and public interest discussion, provided the conduct does not actively promote hatred or violence. Political speech and debate may also be protected, particularly where it does not cross into incitement or harassment.
For offences involving Nazi symbols and gestures, extensive exemptions apply. Displays made for genuine educational, historical, legal, or law enforcement purposes are generally not criminalised, nor are depictions used to oppose fascism or Nazi ideology. Some jurisdictions also explicitly exclude religious swastikas associated with Buddhism, Hinduism, and Jainism from the definition of Nazi symbols. Additionally, a defence may apply if the person did not know, and could not reasonably be expected to know, that the symbol or gesture was Nazi-related.
Finally, hate crime laws often require prosecutorial oversight, with some offences requiring the consent of the Director of Public Prosecutions before charges can proceed.
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.
