Case Explained: Australia’s hate speech law has passed parliament, but how effective will it be in counteracting hate? – Legal Perspective

You can listen to Professor Katharine Gelber discuss Australia’s new laws and the difficulty of legislating against hate speech with Waleed Aly and Scott Stephens this week on The Minefield.

After a single day of debate, on 20 January the federal parliament enacted the Combatting Antisemitism, Hate and Extremism (Criminal and Migration Laws) Bill 2026. This was the part of the omnibus bill released one week earlier that had been separated out from the gun law reforms.

All eyes will now be on whether, and how, the law will deal with hate speech and hate crimes. The initial proposal to include an incitement to hatred criminal offence was dropped when it became clear it would not get through the parliament.

There have been prior attempts to enact a federal incitement to hatred offence — including in 1995 when the Racial Hatred Act 1995 (Cth) was enacted, which introduced the well-known section 18C and 18D civil provisions into the federal Racial Discrimination Act 1975 (Cth). At that time the proposal failed, ostensibly on the same grounds as the current bill.

In spite of calling for urgent action in the time since the Bondi terror attack, the Liberal Party was unable to muster sufficient support for a criminal incitement to hatred offence.

An expanded definition of “hate crime”

So what did we get? An important component of the new legislation — and one that has flown under the media radar to this point — is the definition of hate crimes which forms the basis for the prohibition of designated hate groups. In the initial proposal revealed last week, hate crimes were defined as the relevant provisions in Division 80 of the Commonwealth Criminal Code Act 1995, where the group was distinguished by race. These hate crimes include advocating or urging force or violence, and the display of prohibited terrorist and hate symbols.

In the bill as enacted, the definition of hate crimes has been significantly expanded. Bear with me — this will take time to unravel.

First, a hate crime is defined in the same way as a week ago — as the relevant provisions in Division 80 of the Commonwealth Criminal Code where the group is distinguished by race. It is worth noting that the relevant provisions in Division 80 are not restricted to race – they also include “religion, sex, sexual orientation, gender identity, intersex status, disability, nationality, national or ethnic origin or political opinion”. Yet none of these other grounds counts for the purposes of identifying a prohibited hate group. The explicit exclusion of Muslims, and other groups, leaves large gaps in coverage, especially in the context of documented hatred against Muslims.

Second, a hate crime is also defined as “publicly inciting hatred” on the ground of race, where doing so “would constitute an offence against a provision of a law of the Commonwealth … [or] against a provision of a law of a State or a Territory”. The bill then cites relevant serious vilification provisions in each State or Territory. This is where it gets messy. Those provisions differ in their form and on the grounds covered. Relevant criminal provisions in New South Wales, Western Australia and South Australia only cover race. Relevant criminal provisions in Victoria, Queensland, and the ACT cover a range of different grounds, such as sexual orientation, religion, sex and gender identity. Nevertheless, it is only race that is covered by the definition of hate crime at Commonwealth level, even though these State and Territory statutes cover other grounds.

^{Member for Berowra, Julian Leeser, speaks in Parliament House on 19 January 2026 in Canberra. (Photo by Hilary Wardhaugh / Getty Images)}

In both cases the conduct must reach the threshold of causing “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”. It is notable that the “reasonable person” test is here applied to a member of the target group. This is already the case in s18C — the civil provision, which considers the effect on a reasonable member of the target group to assist in identifying whether a substantive public harm sufficient to warrant designation as unlawful conduct has occurred.

This change to the “reasonable person” test has also been implemented for some of the other relevant provisions in Division 80 of the Criminal Code — namely, the prohibitions on advocating force or violence through causing damage to property, the public display of Nazi symbols or a Nazi salute, where doing so:

• involves disseminating ideas of racial superiority or could incite another person “to offend, insult, humiliate or intimidate” on the ground of race; or
• constitutes advocacy of hatred of another person on the ground of race or “could incite another person or a group of persons to offend, insult, humiliate or intimidate” on the ground of race.

It also includes the prohibition on the public display of terrorist symbols, where doing so involves disseminating the same ideas or the same incitement.

Then, separately again, a hate crime is defined as “conduct, or threat of conduct” that involves causing “serious harm to a person” or “serious damage to property”, causing “a person’s death” or “endangering [their] life”, or “creating a serious risk to the health or safety of a section of the public” on the ground of race.

This is a very significant expansion of the definition of hate crimes since the first version of the bill was introduced.

The designation of “hate groups”, aggravated offences and sentencing

Once a group is identified as engaging in or planning hate crimes, there are a number of steps that need to be taken before it can be designated a prohibited hate group. These include advice from the Australian Security Intelligence Organisation (AISO) and the Australian Federal Police (AFP). Relevant authorities need to be satisfied that the group engaged in planning, preparing, assisting or advocating hate crimes and that their designation as a hate group is “reasonably necessary to protect the Australian community” from harm.

This includes considering whether the group’s activities “are likely to increase the risk of politically motivated violence, or of the promotion of communal violence” (as defined in the ASIO Act 1979), or whether the group is engaged in activities that indicate a risk of violence. Once a group has been so designated, it is a crime to direct, be a member of, recruit, train for or be trained by, or fund such a group with significant jail penalties for those convicted.

This new law clearly attempts to reach the types of groups that Home Affairs Minister Tony Burke has warned currently fall “just below the legal threshold” of criminality and therefore have been operating with impunity. Open Nazi rallies in recent years in both Melbourne and Sydney are proof of that, as is the rise in antisemitism since 7 October 2023.

Nevertheless, other recent changes to the law at Commonwealth and State levels have not yet had time to be tested as to their ability to reach into the same conduct.

Just last year the federal government amended the law to criminalise advocating force or violence against groups on a range of grounds — including race, sex, sexual orientation, gender identity, intersex status and disability — while also changing the standard for this offence from intent to recklessness. Also last year, Victoria implemented a new incitement of hatred offence on a range of grounds in the criminal law for the first time, as did New South Wales in relation to race. None of these laws has yet been tested in the real world as to their utility in responding to the kinds of conduct the Home Affairs Minister cited.

^{Minister for the Arts, Home Affairs, Cyber Security, Immigration and Citizenship, Leader of the House Tony Burke, addresses the chamber at Parliament House on 20 January 2026 in Canberra. (Photo by Hilary Wardhaugh / Getty Images)}

This week’s new bill also implemented a number of other measures that have been widely reported — among them:

• aggravated offences for religious officials and spiritual leaders;
• an increased penalty for using a postal service to menace, harass or cause offence; and
• aggravated sentencing factors for crimes motivated by hatred.

It also legislated for a review of the law’s effectiveness at combating antisemitism and racial hatred in two years’ time.

The need for political leadership and public dialogue

Prime Minister Anthony Albanese has managed to achieve significant law reform in a short period of time, and has thereby responded to considerable community pressures. Nevertheless, it remains to be seen whether the provisions of this complex law will be useful in tackling antisemitism and other forms of racism. I am also left wondering what the first test case will look like.

As I wrote last week: 

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.

I still believe this type of leadership and public dialogue are needed. I live in hope that this new legislation will nudge us toward precisely that.

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