Crimes Amendment (Inciting Racial Hatred) Bill 2025 (NSW) Briefing Note

February 20, 2025

On Tuesday 18 February the NSW Government introduced the Crimes Amendment (Inciting Racial Hatred) Bill 2025 (the Bill).

The Bill will amend section 93Z of the Crimes Act 1900 (NSW) to create a new criminal offence of intentionally inciting racial hatred. The offence will carry a maximum penalty of two years in prison, fines of up to $11,000, or both, while corporations can face fines of $55,000.

Section 93Z of the Crimes Act already contains an offence of publicly threatening or inciting violence on the grounds of race, religion, sexual orientation, gender identity, intersex status and having HIV/AIDS. 

The Bill is at odds with the NSW Law Reform Commission’s (NSWLRC) recent recommendation that NSW not introduce new criminal vilification offences or expand section 93Z to address issues of serious racial and religious vilification.

ALHR recognises that hate speech has serious, social and psychological consequences and condemns recent crimes motivated by antisemitism, Islamophobia and queerphobia. 

However, NSW law should be consistent with the core principles of the rule of law which guide our liberal democracy. Of particular relevance in relation to this Bill is that:

  • NSW must comply with Australia’s binding international legal obligations whether created by treaty or arising under customary international law; and
  • The criminal law must be certain and clear.

ALHR appreciates that members of the NSW Parliament and community rightly want to respond to recent racially and religiously motivated hate crimes which have targeted both Jewish, Palestinian and Muslim communities. However the Bill should be scrutinised for unintended human rights consequences that may flow from its genuine intentions. 

Summary of Australian Lawyers for Human Rights’ (ALHR) concerns and recommendations:

  • Australian Lawyers for Human Rights (ALHR) has significant concerns that the Bill has not been referred to a Parliamentary Inquiry for scrutiny and comprehensive expert and public consultation.

Laws with significant human rights impacts, that are at odds with the expert recommendations of the NSWLRC and that carry significant prison sentences should, categorically, not be rammed through the parliament in a matter of days.

Recommendation: ALHR calls on all members of the NSW Parliament to support referral of the Bill to a Parliamentary Committee for inquiry and comprehensive community consultation.

  • ALHR has significant concerns that the Bill may disproportionately impact already vulnerable and over-policed populations such as Aboriginal and Torres Strait Islander people.

  • ALHR has significant concerns that s 93ZAA(1)(a) of the Bill treats inciting hatred on the basis of race as a more serious crime than inciting hatred based on other attributes such as religion, gender, sexuality, intersex status, disability status, or HIV/AIDS status. 

This will:

  1. create a hierarchy of human rights and legal protection in NSW that violates core principles of international human rights law; and
  2. send a clear message to the NSW community that the NSW Parliament does not believe that all members of the NSW community are worthy of equal legal protection from conduct that intentionally incites hatred and causes them to fear for their safety, or to fear harassment, intimidation or violence.”

The promise of the commission of an expert review to examine whether other vulnerable groups in our community are equally worthy of equal legal protection from the intentional incitement of hate, is not sufficient to remedy this flaw in the Bill – particularly in light of the reality that, by introducing the Bill, the NSW Government has elected to ignore the expert legal recommendations of the NSWLRC not to expand s 93Z.

Recommendation: ALHR calls on the NSW Government to ensure that any proposed new criminal offence is not solely confined to the intentional incitement of hatred based on race by amending s 93ZAA(1)(a) to include intentionally inciting hatred on the grounds of attributes already protected under the current s 93Z(1), including: religion; sexual orientation;  gender identity; intersex status or sex characteristics; and HIV/AIDS status.

ALHR also supports amendments to address the current failure of s 93Z(1) and this Bill’s proposed s 93ZAA(1)(a) to afford protection to persons from publicly threatening or inciting violence or intentionally inciting hatred on the basis of other protected characteristics such as: sex; and disability status.

  • ALHR has significant concerns that s 93ZAA(2) of the Bill contains an exemption for the intentional incitement of hatred based on race where that incitement “consists only of directly quoting from or otherwise referencing a religious text for the purpose of religious teaching.” 

In ALHRs view such an exemption is:

  • inconsistent with article 18 (3) of the ICCPR which recognises that freedom of religion may be proportionately limited in order to protect the fundamental rights and freedoms of others; and 
  • is unwarranted and unnecessary given the proposed new offence already requires that;
    1. any incitement to hatred be “intentional”; and 
    2. serious enough to cause a reasonable person or member of the group targeted to fear for their safety, or fear harassment, intimidation or violence. 

Recommendation: ALHR calls on the NSW Government to withdraw s.93ZAA(2) in its entirety.

  • ALHR is concerned that the Bill risks introducing imprecision and subjectivity into the criminal law by criminalising ill defined, ambiguous terms such as “hatred.” 

The Bill does not address the NSWLRC’s concern that “hate’ is an ambiguous and subjective term that means different things to different people and this ambiguity makes hatred an inappropriate standard for the criminal law. The proposed criminal offences carry serious penalties, including the possible deprivation of a person’s liberty. 

The Committee on the Elimination of Racial Discrimination has warned that restrictions on freedom of speech should not be “broad or vague”, since these could be used to the detriment of protected groups. Similarly, the Human Rights Committee has observed that laws that are too broad could excessively impede on the right to freedom of expression.

Recommendation: Pursuant to the rule of law, criminal offences should be clear and able to be consistently understood across the NSW community

Detailed Explainer expanding upon the human rights concerns highlighted above

Human rights are indivisible, interdependent and interrelated.

Everyone in NSW has a human right to live with safety, dignity and security, free from discrimination, and hatred incited on the basis of protected characteristics such as race, religion, sex, LGBTIQA+ status, disability status, or HIV/AID status.

Article 7 of the Universal Declaration of Human Rights (UDHR) affirms that all individuals are entitled to equal protection under the law without discrimination. 

Article 12 of the UDHR protects individuals from attacks on their honor and reputation, reinforcing the need for safeguards against hate speech.

Article 20 of the ICCPR obliges governments across Australia to prohibit by law any “advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence.”

The United Nations Human Rights Committee (UNHRC) has repeatedly emphasised that states must take proactive steps to prevent all forms of hate speech from escalating into discrimination and violence.

Australia clearly has binding international legal obligations to combat hate speech and discrimination, requiring legislative measures that effectively address serious vilification targeted and people of groups on the basis of protected attributes.

ALHR is therefore significantly concerned that the Bill is restricted to the incitement of hatred based solely on race.

Limiting the bill to incitement based solely on race can not be justified

The Bill will fail to provide equivalent legal protection to people who experience fear of harassment, intimidation or violence, or who reasonably fear for their safety, as a result of the intentional incitement of hatred that is based on religion (including some forms of islamophobia), sex, LGBTIQA+ status, disability status, or HIV/AID status.

This will:

  1. create a hierarchy of human rights and legal protection in NSW that violates core principles of international human rights law; and
  2. send a clear message to the NSW community that the NSW Parliament does not believe that all members of the NSW community are worthy of equal legal protection from conduct that intentionally incites hatred and causes them to fear for their safety, or to fear harassment, intimidation or violence.”

ALHR acknowledges that, in response to very significant community concern, the Attorney General has committed to commission a review to be conducted by a suitably qualified and experienced legal expert, who will consider the sufficiency of criminal law protections against hatred for vulnerable groups in the NSW community, people of faith, LGBTQIA+ and others and recommend any improvements that could be made. 

The review will consider the interaction between any improvements and existing rights and freedoms, including the implied freedom of political communication and freedom of religion. The review will be completed in six months and may potentially lead to further legislative changes. ALHR suggests that the Hon. John Sackar is an appropriately qualified legal expert to conduct the review.

If intentional incitement to hatred based on race warrants criminal penalties, then ALHR’s view is that the Bill currently before the Parliament should be amended now to extend equal protection to other protected attributes before it is passed.

ALHR further notes that the NSWLRC already reviewed and reported on the effectiveness of s 93Z in addressing serious racial and religious vilification in NSW, including by examining the impacts on freedom of speech, association and religion. The NSW Government has decided to ignore its recommendation that new criminal vilification offences not be introduced and s 93Z not be expanded to address issues of serious racial and religious vilification. ALHR therefore has well-founded concerns that future expert legal recommendations may also be ignored.

ALHR reiterates our view that this Bill give rise to interactions with existing rights and freedoms, including the implied freedom of political communication and the balancing of freedom of religion with other fundamental human rights, that warrant expert and community review before a Parliamentary Committee of Inquiry.

Incitement of hatred based on Antisemitism 

ALHR condemns in the strongest possible terms recent antisemetic hate crimes in NSW. These incidents include crimes such as: the January 21 arson and spray-painting of antisemitic graffiti of a childcare centre in Maroubra which is located near a Jewish school and synagogue; the destruction of cars with fire, antisemitic graffiti at the former home of a prominent Jewish individual; the vandalism of two Sydney synagogues in one week which were both graffitied with swastikas; and the discovery of a caravan containing explosives and a map showing the location of Synagogues in Sydney. The Executive Council of Australian Jewry has captured 2,062 antisemitic incidents in the last year.

We recognise the human rights of all jewish people to live free from the harms of antisemitism.

Incitement of hatred based on Islamophobia

ALHR condemns in the strongest possible terms escalating hate crimes against Muslim, Arab, and Palestinian communities in Australia. Recent Islamophobic, anti-Arab, anti-Palestinian and antisemitic hate crimes include: racist anti-Arab graffiti in Sydney; the planting of a homemade bomb in front of a Sydney home which was flying the Palestinian flag; the setting alight of a truck bearing the Palestinian flag which belonged to a man of Palestinian heritage in Melbourne; the setting alight of a school bus belonging to an Islamic college in the southern suburbs of Adelaide; the alleged assault of two Muslim women at an Epping shopping centre in Melbourne’s north. The Islamophobia Register has recorded a 600 per cent rise in Islamophobic incidents across Australia since 7 October 2023.

Article 20 of the ICCPR obliges Australia to prohibit by law any “advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence.”

ALHR is significantly concerned that this Bill may fail to capture incitement to hatred based on Islamophobia. We note that the recent case of Faruqi v Hanson [2024] FCA 1264 found that some forms of Islamophobia may be considered racial vilification, while other types of Islamaphobic comments are not. 

ALHR is concerned that the omission of express protection from the incitement of hatred based on religious grounds may enable far-right groups and individuals, who often proclaim that, because Islam is not a race, they cannot be racist. 

Extending protections against racist hate speech including anti-semitism, whilst not ensuring that Muslim people receive the same protection cannot be justified. 

Incitement of hatred based on LGBTIQ+ status

Within Australia, including in NSW, we are also seeing an alarming rise in anti-LGBTIQ+ violence, hate speech and vilification, including a disturbing increase in incidents of hate speech, threats and physical attacks including vandalism, online attacks and targeted bashings, attacks on libraries, councils, queer venues, and queer events. These have included incidents such as neo-Nazis at an anti-trans rally on the steps of the Victorian Parliament, a riot against LGBTIQ+ protestors in South-West Sydney, gang attacks on gay and bisexual men using online dating platforms, in NSW and nation-wide. In NSW, several people have been charged with targeted hate crimes against a sitting gay politician. ACON and the HIV/AIDS Legal Centre have noted that “a recent study on anti-trans hate in Australia found that 94% of participants had witnessed online anti-trans abuse, harassment, or vilification, and 49% had experienced such vilification.

ALHR is deeply concerned that the proposed amendments will not include the LGBTIQ+ community. 

United Nations treaty bodies have repeatedly found that State parties to the core human rights treaties have an obligation to enact legislation that addresses homophobic and transphobic incitement to violence.

Numerous international human rights mechanisms including the UNHRC, the United Nations Special Rapporteur on Freedom of Opinion and Expression and the European Court of Human Rights have long expressed concern at rhetoric used to incite homophobic and transphobic hatred and related violence.

Incitement of hatred based on Ableism

Evidence also shows that many people with disabilities experience harassment in public places and by strangers. In its 2021 report, Inquiry into anti-vilification protections, the Victorian Legislative Assembly Legal and Social Issues Committee found persons with disability face ongoing harassment and hate conduct. The Law Reform Commission of Western Australia’s Final Report on the Review of the Equal Opportunity Act 1984 (WA), recommended expanding the scope of existing criminal anti-vilification provisions to cover serious or harmful instances of vilification on the basis of disability. 

The Australian Capital Territory creates a criminal offence of serious vilification on the basis of disability status. Australia’s ratification of the Convention on the Rights of Persons with Disabilities (CRPD) and its obligations under article 16(1) to protect people with disability from all forms of violence and abuse would support legislation prohibiting vilification and incitement to hatred targeted at people with disability.

ALHR notes that the Bill will perpetuate the existing s 93Z exclusion of incitement of hate based on disability – an outcome that is completely at odds with the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability’s Recommendation 4.30 that:

States and Territories that already have legislation imposing criminal penalties for vilification of people on grounds that do not include disability should extend the legislation to vilification of people on the ground of disability.

Freedom of Religion and the Bill’s Religious Exemption

ALHR has significant concerns that s 93ZAA(2) of the Bill contains an exemption for the intentional incitement of hatred based on race where that incitement “consists only of directly quoting from or otherwise referencing a religious text for the purpose of religious teaching.” 

In ALHRs view such an exemption is: 

  1. inconsistent with article 18 (3) of the ICCPR which recognises that freedom of religion may be proportionately limited in order to protect the fundamental rights and freedoms of others; and 
  2. is unwarranted and unnecessary given the proposed new offence already requires that;
    1. any incitement to hatred be “intentional”; and 
    2. serious enough to cause a reasonable person or member of the group targeted to fear for their safety, or fear harassment, intimidation or violence. 

If conduct that meets this threshold is to be considered so serious as to be criminalised then it should not be treated as less serious, or as causing less harm to the targeted community,  simply because it involves only quoting from or referencing religious texts for the purposes of religious teaching.

If passed, this exemption will establish a legal imbalance, and concerning legal precedent, that  privileges certain forms of intentional religious-based incitement to hatred at the expense of the human rights of others to live free from fear of harassment, intimidation or violence.

The human right to freedom of thought, conscience and religion protected within Article 18 if the ICCPR is an absolute personal right exercised internally, but there is no absolute right to manifest or act upon one’s religious belief externally so as to impact upon others. Religious freedom does not mean freedom to visit harm upon others in the name of one’s own religion. 

ALHR therefore takes this opportunity to remind you that protecting people from religiously motivated intentional incitement to hate is consistent with Article 18 (3) of the ICCPR which recognises that the human right to freedom of thought, conscience and religion may be subject to proportionate limitations prescribed by law where those limitations are necessary to protect public safety,  health, morals and the fundamental rights and freedoms of others.

ALHR notes that the United Nations Committee on the Rights of the Child (UNCRC) has criticised statements by the Holy See as contributing to the stigmatisation of, and violence against LGBT adolescents and children raised by same-sex couples. 

The Office of the High Commissioner for Human Rights (OHCHR) noted in its 2019 ‘Born Free and Equal Report’  that:,

Impunity for incitement to violence by authorities, or community or religious leaders, can encourage threats and attacks by both State officials and private individuals

Direct references to religious texts and teachings have given rise to concerns regarding the intentional incitement to race hate in the context of, for example, the enslavement and dispossession of Black people, the 1994 Rwandan Genocide, and the war in Gaza. 

International law is clear: human rights have no hierarchy, they are interrelated, interdependent and indivisible and must be balanced to ensure the exercise of one person or groups’ rights does not disproportionately infringe upon the rights of others.

The criminal law should not be subjective or ambiguous 

ALHR is concerned that the Bill risks introducing imprecision and subjectivity into the criminal law by criminalising ill defined, ambiguous terms such as “hatred.” 

The Bill does not address the NSWLRC’s concern that “hate’ is an ambiguous and subjective term that means different things to different people and this ambiguity makes hatred an inappropriate standard for the criminal law. The proposed criminal offences carry serious penalties, including the possible deprivation of a person’s liberty.

Potential disproportionate impacts on vulnerable groups

As noted by the NSWLRC, expanding s 93Z could have a disproportionate, negative effect on some individuals and communities that the offence was designed to protect:

For instance, members of the UTS Law Criminal Justice Cluster submitted that racial discrimination laws “are routinely used by culturally dominant groups to litigate against culturally marginalised groups”. They highlighted examples of this happening where the conduct in question was directed at white people, by Aboriginal people. Professor Asquith’s 2013 research into the United Kingdom’s hate speech laws also found a “disproportionate application of the laws to members of minority communities, for whom hate crime provisions were initially created.”

There is a particular risk that expanded vilification offences could capture interactions between Aboriginal people and the police. Analogies were drawn with the disproportionate impact of offensive language offences. We were referred to research and inquiries indicating that these offences are used excessively against Aboriginal people.

Concerns were also raised that expanded vilification offences may disproportionately affect some people with disability, including in their interactions with police. 102 People with cognitive and/or psychosocial disabilities are significantly overrepresented in the criminal justice system. The nature of police responses can result in minor issues escalating, leading to criminal charges.

Conclusion

By aligning domestic laws with international human rights obligations, NSW can better protect everyone in NSW equally, uphold our democratic way of life and foster a safer and more inclusive society.

The proposed amendments to section 93Z of the Crimes Act 1900 (NSW) should have been referred to a Parliamentary Committee for inquiry so that they can be properly inquired into.

Laws that have a human rights impact should, categorically, not be rushed through the NSW Parliament without proper scrutiny or consultation with the community. 

We take this opportunity to again reiterate our united call – supported by 48 NSW community, legal, religious and civil society organisations – for the introduction of a Human Rights Act for NSW. It is time for NSW to protect everyone’s human rights equally and ensure that legislation before our parliament only limits protected rights in ways that are necessary and proportionate in a free and democratic society based on human dignity and equality.