Case Explained: As the parliament considers new hate speech legislation, we need clarity about what criminal law can — and can’t — do – Legal Perspective

As someone who has spent an entire career arguing in favour of narrowly drawn hate speech laws that target genuinely and substantively harmful speech, I am watching the current debate over new hate speech laws at federal level, in New South Wales and possibly in other states with a great deal of interest.

There has been a longstanding view in Australian political culture that free speech is important but not absolute, and that where there is a legitimate reason to curtail it in the interests of protecting the vulnerable, it is acceptable to do so. This is why anti-vilification laws have continued to enjoy strong public support since their inception over 30 years ago. This support has persisted in spite of attempts by some libertarians to import a more US-style flavour to our free speech debates in the last decade or so, and especially during the marriage-equality debate.

Australia has a unique approach to regulating vilification: we prioritise a civil law, anti-discrimination response to the problem of vilification. Although criminal laws have existed for decades, they are rarely utilised. Instead, we rely on a complaints-based and educative approach that seeks to create genuine understandings of the harms of hate speech and encourages people, through non-punitive mechanisms, not to engage in it.

This approach is, of course, far from perfect — the tangible rise in antisemitism in Australia since the 7 October 2023 attacks in southern Israel, and the Chanukah massacre at Bondi Beach last month, have shown us as much. So has the tangible rise in racism against Aboriginal and Torres Strait Islander peoples during the Voice referendum in 2023.

In the aftermath of the Bondi shooting, it is entirely understandable that parliamentarians would reach for the strongest tool they have in their toolbox — namely, legislation. But it is also important that, in doing so, they pay careful attention to the functions and the limits of criminal law.

Overly broad definitions

There is a lot to like in the federal government’s new omnibus bill. Sentencing enhancement for racially motivated crimes is sensible and exists already in many jurisdictions. The enactment of a new federal racial vilification offence is, in principle, a good idea. Prohibitions on directing, being a member of, recruiting for, training, funding or supporting a hate group constitute a sensible attempt to treat organisations that cultivate violence against the marginalised appropriately.

But the devil is in the detail — especially in the context of strong public pressure to legislate quickly.

For example, in the Combatting Antisemitism, Hate and Extremism Bill 2026 hate groups are defined, among other things, as those that “advocate” engaging in the hate crimes defined in the Commonwealth Criminal Code. The term “advocate” is a difficult one to pin down, but the proposed bill uses the same terminology as in the offence of advocating terrorism, which includes promoting, encouraging, urging, instructing or “praising” a hate crime:

in circumstances where there is an unacceptable risk that such praise might have the effect of leading a person (regardless of the person’s age or any mental impairment that the person might suffer) to engage in conduct constituting a hate crime.

This formulation has always been capacious and problematic. Now, its potential application to hate groups provides an opportunity to narrow it down.

The bill contains an aggravation component when a hate crimes offence is committed by “religious official or other spiritual leader”. But the definition also includes reference to “a spiritual leader or other leader (however described) of a group, who provides religious instruction or pastoral care (whether religious or secular)”. The reach of this definition seems very broad indeed. I believe it should be reconsidered.

An expansion of prohibited behaviour

The newly proposed federal racial vilification offence is complex. It should be noted that, in 2025, two other Australian jurisdictions moved an incitement of racial hatred offence into the criminal law. In New South Wales, the formulation is the incitement of hatred. In Victoria, the formulation is the incitement of “hatred against, contempt for, revulsion toward or severe ridicule of, another person or group”. These followed the example of Western Australia, which in 1990 and following violent activities by the far right — including antisemitic attacks on synagogues and the fire-bombings of Asian restaurants — enacted a series of criminal laws that prohibit the incitement of racial animosity or racist harassment.

The newly proposed federal vilification offence prohibits publicly promoting or inciting “hatred of another person … or a group of persons” on the basis of their “race, colour or national or ethnic origin”. It therefore differs in not being constrained to incitement — it includes the promotion of hatred, which is a far wider offence.

The newly proposed federal vilification offence also prohibits the dissemination of “ideas of superiority over or hatred of another person … or a group of persons” on the basis of their “race, colour or national or ethnic origin”. Again, the inclusion of this wording significantly expands the criminal law beyond a typical incitement of hatred offence.

In all cases the new offence proposes to require intent, and requires that “the conduct would, in all the circumstances, cause a reasonable person who is the target, or a member of the target group, to be intimidated, to fear harassment or violence, or to fear for their safety”. The inclusion of a fear of “harassment”, once again, broadens the offence.

The question of grounds is also important. As has been acknowledged in the public debate over the bill, it is unclear why the proposed new federal vilification offence covers only the ground of race. In the other hate crime offences in the relevant part of the Criminal Code, grounds covered include “race, religion, sex, sexual orientation, gender identity, intersex status, disability, nationality, national or ethnic origin [and] political opinion”.

The last ground is a leftover from poorly drafted “sedition” laws in 2005, which in 2025 were amended so as now to prohibit “Advocating and threatening force or violence against targeted groups, or members of targeted groups” on relevant grounds. The question of grounds needs answering. It does not seem good enough to enact legislation on only this one ground — namely, race — without considering the others.

Finally, the newly proposed vilification offence contains a defence for “directly quoting from, or otherwise referencing, a religious text for the purpose of religious teaching or discussion”. If a defence for religious texts is needed, it is unclear why the clause “or otherwise referencing” is included. This seems to me to broaden the defence considerably.

Contested phrases

The New South Wales state government is considering legislating to ban specific phrases from the public lexicon. Again, this is new territory in hate speech laws. Until now, provisions have always been drafted to capture speech that is substantively harmful, while using judgement in individual cases, including assessing context, that allow a determination of whether or not harm has occurred. This is particularly important with phrases that are highly contested — as, in fact, many of the phrases relevant to pro-Palestinian protests are.

The only exception to this has been the explicit banning of Nazi symbols and gestures, which has occurred in every jurisdiction around Australia (except the Northern Territory) over the last three years. In some of those jurisdictions the law is explicit about including conduct such as a Nazi salute or a Hakenkreuz. In others, the text of the legislation is limited to symbols and gestures of Nazism. Symbols and gestures of Nazism are unique insofar as they are connected to historically verifiable mass atrocity crimes, human rights abuses and murder on an industrial scale. There is no context within which it is possible to make a public display of a Nazi symbol that does not convey this imputation, except for the recognised defences in law such as an educative purpose.

The slogans the New South Wales government seeks to ban do not fall within this category; they are far more highly contested. Banning specific phrases would represent a new phase in Australian criminal law — one in which Australia has no experience — and would introduce a measure that has not been adopted globally in the effort to combat hate speech and vilification.

Ultimately, the criminal law cannot — and cannot be expected to — solve complex social problems. What is needed is leadership that clarifies that the ethical standards we expect for public debate are not the same as the standards we require for criminality. We need a dialogue in which people come to understand that people are suffering, and that words can be interpreted and received differently from how speakers might intend when they send them out into the world. We need to try to build mutual understanding. The criminal law cannot do this. It also cannot draw bright lines around contested and contestable social meanings.

Katharine Gelber is Deputy Executive Dean and Associate Dean (Academic) in the Faculty of Humanities, Arts and Social Sciences at the University of Queensland.