A reference list on the drafting history behind Australia’s recent hate-speech and hate-crime legislation, and a specific legal shift worth scrutinising: the move from criminalising threats of violence to criminalising presumed hatred, increasingly carrying comparable penalties.
The shift in one sentence
Commonwealth and NSW law both began, in 2024, by criminalising threats — conduct with an identifiable object, tested against whether a reasonable member of a targeted group would fear that specific threatened harm. Within about a year, both jurisdictions extended the same “reasonable person” mechanism to the incitement or promotion of hatred — conduct that need not threaten anything concrete at all. The result asks a court to test whether a reasonable person would fear violence, in response to speech that no longer needs to threaten violence to be caught. That mismatch between trigger and test is the core of the argument below.
Legislative timeline
- 1989 (NSW) — the Racial Vilification Amendment Act, Australia’s first anti-vilification law, amending the Anti-Discrimination Act 1977 (NSW).
- 1995 (Cth) — the Racial Hatred Act inserted s18C into the Racial Discrimination Act 1975, a civil provision judged by an “ordinary reasonable person” objective standard.
- 1996 (SA) — the Racial Vilification Act, a criminal offence tied to threats of physical harm.
- September 2024 (Cth) — the Criminal Code Amendment (Hate Crimes) Bill, introduced by then-Attorney-General Mark Dreyfus, created threat-based offences: guilt turned on whether “a reasonable member of the group would fear the threat being carried out.” Applied across race, religion, sex, sexual orientation, gender identity, disability, and political opinion.
- February–August 2025 (NSW) — the Crimes Amendment (Inciting Racial Hatred) Act inserted s93ZAA into the Crimes Act 1900. This is the direct textual ancestor of the 2026 Commonwealth wording, and the point at which the offence shifted from threat to incitement of hatred, while retaining the reasonable-person-of-the-target-group test.
- January 2026 (Cth) — the Combatting Antisemitism, Hate and Extremism (Criminal and Migration Laws) Act, passed 20 January 2026. Introduced the “prohibited hate group” listing framework. A standalone individual hate-speech offence was included in the exposure draft but, on the available evidence, appears not to have survived into the Act as passed — the government’s own summary of what the Act contains does not mention it, consistent with reporting that it was dropped after Coalition and Greens opposition. This is corroborated by two independent sources rather than confirmed against the certified Act text directly, and is worth checking on the Federal Register of Legislation before being treated as settled.
Where the government itself explains the test
The clearest statement of the mechanism in the government’s own words comes from the NSW Attorney-General’s second reading speech introducing s93ZAA, which frames the question as objective and independent of any actual fear having occurred:
“It does not need to be shown that the targeted person or group actually did fear the outcomes.”
Independent legal and civil-society concern
The threat-versus-hatred distinction has already been raised independently, in near-identical terms, by:
- The NSW Women’s Action Alliance, in its submission to the state’s independent review of criminal hate-speech protections, which frames the earlier threat offence as targeting only “the most egregious forms” of conduct, contrasted with the “vaguer concept” the newer offence relies on.
- Professor Sarah Sorial (Macquarie University Law School), in a parallel submission to the same review, drawing the same line between the older threat-based provision and the newer hatred-based one.
- The Australian Human Rights Commission, in its own submission to the same review.
- Commentary describing the combination of “promote,” “incite,” a reasonable-person standard, and unactualised fear as legally vague and overbroad.
Case law worth knowing
- Jones and Members of the Executive Council of Australian Jewry v Toben (HREOC, 2000) — the first major application of the “ordinary reasonable person” test under s18C, resulting in a civil order rather than a criminal conviction.
- R v Keegstra [1990] 3 SCR 697 (Canada) — the Supreme Court of Canada’s high threshold for what counts as “hatred” in law.
- Wertheim v Haddad [2025] FCA 720 — a Federal Court decision on the limits of the “reasonable fear” threshold and the religious-teaching exemption.
- Australian Communist Party v Commonwealth (1951) 83 CLR 1 — the precedent now being tested against the new “prohibited hate group” proscription power, on the ground that Parliament cannot unilaterally place a political organisation beyond judicial review.
- White Australia Party Inc v Commonwealth [2026 HCASJ 15/17] — the pending High Court challenge to that power, hearing due September 2026.
Where the pattern is visible in practice
Two organisations have been listed as prohibited hate groups so far: Hizb ut-Tahrir (March 2026) and the neo-Nazi “White Australia” group, formerly the National Socialist Network (May 2026). Separately, a 19-year-old was charged in October 2024 with displaying a “prohibited terrorist organisation symbol” for flying a Hezbollah flag at a demonstration — a clear instance of protest conduct being processed through terrorism-labelled law, though under earlier 2023 symbols legislation rather than the 2026 Act itself.
A caution on scope
Australia does have a well-documented pattern of criminalising environmental protest — the Bob Brown Foundation’s Tasmanian cases and Human Rights Watch’s findings on NSW’s disproportionate treatment of climate protesters are the clearest examples. That pattern runs through separate anti-obstruction legislation. Nothing in the sources above connects it to the hate-speech or hate-group framework discussed here, and it would be inaccurate to present the two as the same legal mechanism.
Sources are cited by name, section number, and date throughout. Readers wanting primary text should consult the Federal Register of Legislation (Commonwealth) and the NSW legislation register directly, alongside the parliamentary and court materials named above.