Recently there have been a number of legislative moves or proposals attempting to deal with issues around the area of “hate speech”. The term of course is problematic- we will try to unpack it shortly. But the context, in Australia at least, is the shocking rise in the number of anti-semitic slogans and actual violence being seen in the last few months. Insults have been daubed on buildings and cars, fires lit at buildings associated with the Jewish community. And more recently, we have the shocking spectacle of two nurses from Bankstown Hospital saying on a video which has gone all over the world, that they would either like to kill their Israeli patients, or have already done so!

Part of the response of governments, at the Federal and State level, has been to either enact or propose laws punishing “hate speech”. The term itself is ambiguous. Does it mean speech “motivated” by hate? Or speech expressing hate? Or speech encouraging others to hate? I think we can all agree that, at one end of a spectrum, speech urging commission of violence against others should be unlawful. But what about expressing disagreement with moral choices made about sexual activity? Such speech might not be motivated by hate, but by concern for the bad effects of the behaviour, including contravening of divine law. Yet it might be perceived to be “hateful” by some who hear it.

It is regularly asserted that religiously based violence is somehow connected to speech insulting people on the basis of their religion. Yet some scholars note that there is little evidence produced that this is actually the case- that there is in truth no clear causal connection between speech of this sort and the issuing of threats or perpetration of violence.

Still, let’s concede that such is possible. It may be that regular assertions about how terrible people from a certain religious background are, will “normalise” the idea that threats and violence are appropriate responses. But will laws against such speech actually reduce the threats and violence? Or will they simply result in the speech being hidden from the community before it erupts in the actual acts?

The other problem with hate speech laws, of course, is that there is a serious danger that punishing speech on religious topics will unduly impair free speech on such topics generally. In the rest of this post I want to mention three recent Australian legislative initiatives on “hate speech” and note their possible impact on religious freedom. One is a new provision of Federal law which has already commenced. Second, I will be noting some changes that have been enacted and may commence soon under NSW law. Finally, I will briefly note some concerning legislation currently before the Victorian Parliament.

Before I do so, though, let me be very clear. The right to religious freedom cannot include the right to advocate for physical violence against other members of the community, nor of course a right to actual commit such violence or issue threats of such violence. Note that I have added the word “physical” here to be clear about the sort of “violence” I am referring to. The word “violence” should not be extended in metaphorical directions to refer to “criticising someone’s moral choices” or “upsetting someone”. These matters are not appropriately dealt with by the law. But no community can tolerate physical violence or threats against other members of the community justified by religious beliefs. As we will see, some recent laws are generally in the appropriate area of preventing actual violence; others are more problematic.

1. New Federal Hate Speech Law

The Criminal Code Amendment (Hate Crimes) Act 2025 (Cth; No. 1, 2025) commenced operation on 8 February 2025. It makes a number of changes to provisions in the Commonwealth Criminal Code (contained in a Schedule to the Criminal Code Act 1995 (Cth)).

Some of these changes are not of direct relevance to religious freedom issues, though they should be noted. For example, where previously the Code had penalised certain types of behaviour based on religion, that behaviour is now criminal if done to someone on the basis of other “protected characteristics”. To give one example, s 80.2A, forbidding advocating violence against certain groups, was previously restricted to advocacy of violence against racial or religious groups, but has now been extended to forbid advocacy of violence against groups distinguished by “sex, sexual orientation, gender identity, intersex status, disability”. Other recent amendments also add : “nationality, national or ethnic origin or political opinion” to the list of protected attributes.

Again to be clear, of course it is wrong to advocate violence against people on the basis of these characteristics. But it is not clear that attributes other than race or religion have been seen as a real issue in recent days. Still, the change seems fair. Similar extension of protected characteristics has been made to s 80.2B “Advocating force or violence against members of groups or close associates”, and the new offences in 80.2BA “Threatening force or violence against groups”, s 80.2BB “Threatening force or violence against members of groups or close associates”, s 80.2BC “Advocating damage to or destruction of real property or motor vehicle”, and s 80.2BD “Threatening damage to or destruction of real property or motor vehicle” also include these extended grounds.

There is a great deal of similarity between these various offences. The differences include that some penalise “advocating” force or violence (defined as “counsel, promote, encourage or urge”), and others penalise “threatening” force or violence (ie indicating that one is actually about to do this.) Another distinction the provisions make is between actions directed to “groups” defined by certain characteristics, and on the other hand actions directed to “members of groups” or their close associates (eg spouses or children or carers for the disabled.) It may also be noted that there are usually two offences in each section, the difference between them being that one can be said to “threaten the peace, order and good government of the Commonwealth”, the other (with a slightly lesser penalty) not so qualified. It may be that this technique has been used to shore up the Constitutional validity of the provisions, which might be said to be at the edges of what can otherwise be justified under Commonwealth “heads of power” in s 51.

One of the newly enacted provisions seems more directly related to the acts of graffiti and property damage directed to Jewish people in Sydney. The new offence under s 80.2BE is headed “Advocating force or violence through causing damage to property.” Here the means of advocacy is property damage, and a note to the new offence makes it clear: “Example: An offensive slogan painted on a building (advocating the use of force or violence against Jews) is damage for the purposes of this section”.

This new section, unlike some of the others noted, sets out that it only applies to a targeted group distinguished by “race, religion or ethnic origin” (s 80.2BE(1)(d), (2)(d)).

These new provisions, in my opinion, do not really threaten religious freedom in significant ways. Yes, if your religion requires you to encourage physical violence against those from one of the protected groups, or to threaten them, then your freedom to act on this has been impaired. But that, as noted above, is a sensible outcome. One of the main provisions in international law on this area, article 18 of the International Covenant on Civil and Political Rights (ICCPR), itself notes in art 18.3 that such limits may be placed on religious freedom:

as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others

The limits imposed here, preventing urging or threatening physical violence, are clearly aimed at protecting “public safety” and the “fundamental rights and freedoms of others” not to be harmed or threatened with physical harm.

2. NSW laws

In NSW, three legislative amendments have been enacted but not yet commenced operation (as of 23 Feb 2025).

(a) Access to places of worship

The Crimes Amendment (Places of Worship) Bill 2025 was introduced into the Legislative Assembly (lower house) on 11 February 2025 and approved by Parliament on 21 February. It will commence either 3 months after royal assent or on some earlier date to be proclaimed. New s 214B of the Crimes Act 1900 (NSW) will provide as follows:

214B Places of worship
(1) A person in or near a place of worship must not—(a) without reasonable excuse, intentionally block, impede or hinder a person accessing or leaving, or attempting to access or leave, the place of worship, or
(b) harass, intimidate or threaten a person accessing or leaving, or attempting to access or leave, the place of worship.
Maximum penalty—200 penalty units or imprisonment for 2 years, or both.

This seems a reasonable provision. It has exemptions relating to industrial action, actions near Parliament house, and “authorised public assemblies” which have received prior approval. There is also an amendment to the Law Enforcement (Powers and Responsibilities) Act 2002 s 200 which authorises police to give a direction “in relation to a demonstration, protest, procession or assembly” which is “occurring in or near a place of worship”. (Note that s 56 of the Crimes Act 1900 (NSW) already makes it an offence to “obstruct a member of the clergy” conducting a religious service, which will usually happen within a religious service.)

(b) Graffiti and Nazi symbols

The Crimes Legislation Amendment (Racial and Religious Hatred) Bill 2025 was also introduced on 11 February 2025, and passed through Parliament on 20 February. It will commence on royal assent. It particularly addresses the recent increase in anti-semitic graffiti. It clarifies that the existing offences under s 93Z of “publicly threatening or inciting violence on grounds of race, religion, sexual orientation, gender identity or intersex or HIV/AIDS status” and “displaying Nazi symbols” are committed by use of graffiti, and increases the penalty for doing this “on or near a synagogue, Jewish school or the Sydney Jewish Museum”.

Another amendment, to the Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A, provides that it can be an “aggravating factor” for certain offences if they were motivated, even partially, by hatred or prejudice. A further amendment to the Graffiti Control Act 2008 (NSW) provides that an aggravating factor for sentencing under that Act is that the premises or other property marked is a place of worship.

Again, as much as they shouldn’t be necessary, these seem to be sensible proposals given the current situation.

(c) Expanded “hate speech” laws

The NSW Parliament has now passed the Crimes Amendment (Inciting Racial Hatred) Bill 2025- as of 21 February 2025 it had been approved by both Houses and (like the other two Bills noted above) is awaiting “royal assent”. It will commence operation on a date to be proclaimed.

The Bill will add a new offence to the Crimes Act 1900 (NSW). For present purposes, these are the main provisions, to be in a new Division 8A: “Public incitement of hatred on ground of race.”

93ZAA Offence of publicly inciting hatred on ground of race

(1) A person commits an offence if—
(a) the person, by a public act, intentionally incites hatred towards another person or a group of persons on the ground of race, and
(b) the public act would cause a reasonable person who was the target of the incitement of hatred, or a reasonable person who was a member of a group of persons that was the target of the incitement of hatred, to—
(i) fear harassment, intimidation or violence, or
(ii) fear for the reasonable person’s safety.
Maximum penalty—
(a) for an individual—100 penalty units or imprisonment for 2 years, or both, or
(b) for a corporation—500 penalty units.
(2) Subsection (1) does not apply to an act that consists only of directly quoting from or otherwise referencing a religious text for the purpose of religious teaching or discussion.

Note that the new law is limited to dealing with the actual problems currently in issue, racial hatred, which makes good sense for legislation that has been enacted so quickly. Of course “inciting hatred” is a lower bar than “inciting or threatening violence” (it will catch more behaviour) and so the Government should be very cautious to use the new law only in extreme cases. Note that under s 93ZAA(4), a prosecution for this offence can only be commenced by a public official, either the DPP or a police officer. (It is not usual for citizens to commence prosecutions in any case, but this makes it quite clear that this cannot be done for this offence. Limiting prosecution to these officers will be effective for the purposes of s 14 of the Criminal Procedure Act 1986 (NSW) to exclude private prosecutions.)

Section 93ZAA(2) seems a sensible precaution to avoid actions based merely on analysis or discussion of religious texts. It is rare for religious texts to clearly incite hatred on the ground of race- though some may have been misused in this way in the past. Merely quoting or referencing such a text should not be a criminal offence, however wrong the text may be thought to be. But of course it would be a different issue if a direct quote from a religious book were painted on a placard and used to stir up an angry crowd on a street to acts of violence or harassment, or to incite hatred. That would go beyond the purpose of “religious teaching or discussion” and might be caught by sub-section (1).

The definition of “public act” in s 93ZAA(5) refers back to the definition of the same term in s 93Z, which for some time has already made it an offence to threaten or incite violence on various grounds, including race. The definition from s 93Z(5) is as follows:

“public act” includes– 
(a) any form of communication (including speaking, writing, displaying notices, playing of recorded material, broadcasting and communicating through social media and other electronic methods) to the public, and 
(b) any conduct (including actions and gestures and the wearing or display of clothing, signs, flags, emblems and insignia) observable by the public, and 
(c) the distribution or dissemination of any matter to the public. 
For the avoidance of doubt, an act may be a public act even if it occurs on private land. 

This presumably means that something may be a “public act” if said in a meeting held within premises (such as a church or a mosque) where access is open to members of the public generally. But something said in a private home which is not filmed or put on social media would not be caught by this provision. To be clear, I am not suggesting that “inciting hatred” on account of race happens, or should happen, in private homes; I am just trying to spell out the limits of the law.

The teaching of Christianity is clear- God accepts all those who put their faith in Jesus Christ as one of his people, and there is no room for racial hatred. See for example Colossians 3:11: “Here there is no Gentile or Jew, circumcised or uncircumcised, barbarian, Scythian, slave or free, but Christ is all, and is in all.” (NIV) The apostle Peter, after a specific vision showing him that non-Jewish believers could be welcomed into God’s kingdom, said in Act 10:34-35 : “I now realise how true it is that God does not show favouritism but accepts from every nation the one who fears him and does what is right.” (NIV)

So this amendment to NSW law would not seem to have a significant impact on religious freedom for Christians. While its effect on the wider issues of anti-semitic harassment and violence is unclear, it may play a role in deterring such behaviour.

3. Victorian vilification proposals

However, problems that can be created in this area for religious freedom can be seen in current Victorian proposals. In that State, the Justice Legislation Amendment (Anti-vilification and Social Cohesion) Bill 2024 was introduced into the Legisative Assembly (lower house) on 26 November 2024, passed the lower house on 20 Feb 2025, and is currently (23 Feb 2025) awaiting further debate in the Legislative Council (upper house.)

There are some very good critiques of the impact of this legislation on free speech and religious freedom which have been provided, in submissions on the policy documents behind the Bill from Freedom for Faith and on the current Bill from the Institute of Public Affairs. I commend these documents to readers for more details, but let me summarise the issues briefly.

Currently Victoria’s Racial and Religious Tolerance Act 2001 (“RRTA”) prohibits vilification based on race and religion, with a civil remedy and also a criminal offence for serious vilification. The new Bill will repeal the RRTA, transfer the criminal offence to the Crimes Act 1958 (Vic) (“CA”) in a new Division 2D of Part I, and insert the civil vilification provisions into the Equal Opportunity Act 2010 (Vic) (“EOA”), in new Part 6A. This is not just a reshuffling of provisions, however; the obligations imposed become stricter.

The protected attributes (on the basis of which vilification is unlawful) are now expanded to cover disability, gender identity, race, religious belief or activity, sex, sex characteristics, and sexual orientation (see  new CA s 195M; new EOA s 102B). The criminal offence under s 195N is committed where someone “engages in conduct that is likely to incite hatred against, serious contempt for, revulsion towards or severe ridicule of, another person or a group of persons” on the grounds of a prohibited attribute, and either intended to do so, or “believes that conduct will probably incite” such responses. There is also an offence of threatening physical harm or property damage to someone on these grounds, under s 195O.

A new civil prohibition is set out as follows in s 102D of the EOA:

102D Unlawful vilification 

(1) A person must not engage in public conduct—
(a) that is engaged in because of a protected attribute of another person or a group of persons; and 
(b) that would, in all the circumstances, be reasonably likely to be considered by a reasonable person with the protected attribute to be hateful or seriously contemptuous of, or reviling or severely ridiculing, the other person or group of persons. 

As well as s 102D, there is a version of the previous “incitement” provision in s 102E:

102E Unlawful vilification—incitement 

(1) A person must not engage in public conduct that is likely to incite hatred against, serious contempt for, revulsion towards or severe ridicule of, another person or a group of persons on the ground of a protected attribute of that other person or group of persons.

The main difference from the criminal incitement provision here seems to be that the civil prohibition contains no reference to “intention”, and so it will be up the tribunal or court to decide whether the conduct was “likely” to have the inciting effect.

There are a number of issues in these provisions which may impact on the freedom to make robust comment on religious issues, or on moral issues on which a religious person may differ from the majority sexual orthodoxy. Under the criminal offence, when will statements about the untruth of another religion cross the line into inciting hatred against, serious contempt for, revulsion towards or severe ridicule of, another person? Or statements conveying the teaching of a religious text that, for example, sexual activity outside a man/woman marriage is sinful? While there has been some comment about the need for this type of activity to attack persons, not doctrines, in the decision of the Victorian Court of Appeal in Catch the Fire Ministries Inc v Islamic Council of Victoria Inc (2006) 15 VR 207, and in a more recent 2016 tribunal decision noted in a previous blog post, there is always some doubt about where this line will be crossed.

The new feature of the civil prohibition in s 102D is that the statement need only be “considered by a reasonable person with the protected attribute to be hateful or seriously contemptuous of, or reviling or severely ridiculing, the other person”. What does it mean for a statement to be “hateful”? Grammatically the word “hateful” is not even connected to emotions expressed about the “other person”. Would a statement by a Christian that the prophet of Islam was not a true prophet, be considered “hateful”, even if not directed at a specific Muslim person?

It is good to note that the civil provisions at least contain some recognition of religious freedom. There are “exceptions” listed in s 102G:

102G Exceptions 

(1) A person does not contravene section 102D or 102E if the person establishes that the person’s conduct was engaged in reasonably and in good faith—
(a) in the performance, exhibition or distribution of an artistic work; or
(b) in the course of any statement, publication, discussion or debate made or held, or any other conduct engaged in, for any genuine academic, artistic, public interest, religious or scientific purpose; or 
(c) in making or publishing a fair and accurate report of any event or matter of public interest.
(2) For the purposes of subsection (1)(b), a religious purpose includes, but is not limited to, worship, observance, practice, teaching, preaching and proselytising. 

While it is good that these are mentioned, and that there is a defence if a statement is made “reasonably and in good faith… in the course of any statement… made… for any genuine… religious… purpose”, the various qualifying words here leave a lot of discretion to tribunals or judges to decide what is “reasonable”, what is “good faith”, and what is a “genuine” religious purpose. There is some helpful clarification in s 102G(2) but it should be clear that the circumstances in which a “genuine religious purpose” can be seen, must not be confined to church, mosque or temple services or preaching. A believer who is asked to provide an account of their faith should be able to do so respectfully without fearing they will be dragged before a tribunal.

There is more that could be said about the new Victorian provisions, but these are enough to show that they may create a number of difficulties for believers who wish to engage politely in expressing their beliefs. Actions in such circumstances have recently been rejected in the UK (see for example the recent Court of Appeal decision in Higgs v Farmor’s School [2025] EWCA Civ 109 (12 Feb 2025) holding that a Christian teacher was wrongly dismissed for comments made on a private Facebook page relating to “gender” issues). But hopefully they will not become more common in Australia.