March 2025 – Priscilla Sidey
What Changes Do the New ‘Hate Speech Laws’ Make in NSW?
In response to the recent media reporting’s of anti-Semitic attacks across Sydney, the Government seeks to introduce new hate speech laws in New South Wales.
What is reported to being proposed are changes, namely, to subsection 21A(2)(h) of the Crimes (Sentencing Procedure) Act 1999 (NSW). Subsection 21A(2)(h) presently outlines the aggravating factors to be taken into account when assessing appropriate sentences for criminal offences motivated by hatred for, or prejudice against, a group of people to which an offender believes the victim belongs to (such as people of a particular religion, racial or ethnic origin, language, gender identity, sexual orientation or age, or having particular variations of sex characteristics or a particular disability).
Generally, proving an aggravating factor imposes a longer prison sentence, or a larger fine, but hatred must be established beyond reasonable doubt.
Section 93Z of the Crimes Act 1900 (NSW), imposes the act of publicly threatening or inciting violence on the grounds of race, religion, sexual orientation, gender identity or intersex or HIV/AIDS status as a statutory offence, carrying a maximum penalty of 3 years prison for an individual.
One of the most notable changes proposed is to extend the definition of hate speech by including speech that incites hatred, serious contempt, or severe ridicule against a group of people based on their gender identity, disability, or intersex status.
In a bid to implement stricter laws to combat harmful racial violence, the new legislative framework introduces a lower evidentiary standard for testing evidence. Under the previous regime, prosecutors were often required to prove an intention to incite violence—a standard difficult to prove. The amended legislation allows for prosecution based on conduct that is likely to incite hatred or serious contempt, regardless of intent. This change significantly assists in charging offenders and holding them personally accountable.
From a legal perspective, the proposed amendments creates both opportunities and challenges.
Implementing a broader definition and lowering the proof threshold is likely to result in increased volumes of cases with hate speech undertones, and requiring courts to adjudicate a broader range of disputes.
While the standard for assessing prosecution charges are geared to be narrowed, litigators must also navigate other complex evidentiary issues, including testing evidence on the likelihood of incitement. Lawyers will be required to pay careful consideration to distinguish from, and balance, freedom of expression and the growing need to protect the public against social and physical harm.
Public authorities, individuals and companies should always exercise caution before publishing any communications to the public and seek legal advice and implement compliance training.
As the legal and social landscape evolves, lawyers will no doubt play a pivotal role in navigating the administration of justice intricacies under the new hate speech legislative framework.