Hate crime offences

There is no place in Australia for hatred or extremism of any kind.

Division 80 of the Criminal Code Act 1995 contains a number of criminal offences that protect all Australians from threats of violence.

Criminalising these offences also protects their close associates. Close associates are close family members of all groups, and for people with disability, their carers or assistants.

These criminal offences work alongside state and territory criminal offences and other related Commonwealth criminal offences, including:

  • advocating terrorism (section 80.2C)
  • publicly displaying prohibited symbols or giving the Nazi salute (sections 80.2H and 80.2HA)
  • using a carriage service to menace, harass or cause offence (section 474.17).

Offences for advocating or threatening violence

Sections 80.2A, 80.2B, 80.2BA, 80.2BB and 80.2BE make it a criminal offence to advocate or threaten violence against groups, members of groups or their close associates.

A person may commit an offence of advocating violence if they do all of the following:

  • They intentionally advocate the use of force or violence against a group, a member of a group or their close associate.
  • They are reckless as to whether the force or violence would occur.
  • They are reckless that the targeted person or group was distinguished by race, religion, sex, sexual orientation, gender identity, intersex status, disability, nationality, national or ethnic origin or political opinion, or was a close associate of a person distinguished by any of those attributes.

A person advocates force or violence if they counsel, promote, encourage or urge force or violence.

These offences attract a maximum penalty of 5 years imprisonment, and if the conduct would also threaten the peace, order and good government of the Commonwealth, a maximum penalty of 7 years imprisonment.

A mandatory minimum of one-year imprisonment also applies in limited circumstances where the person or group is distinguished by race, religion or ethnic origin and the force or violence is advocated through causing damage to property.

A person may commit an offence of threatening violence if all of the following apply:

  • They intentionally threaten the use of force or violence against a group, a member of a group or their close associate.
  • They are reckless as to whether the target of the force or violence was distinguished by one or more of the protected attributes listed above.
  • A reasonable member of the targeted groupwould fear the threat would be carried out.

This means there is no requirement to prove that the threat actually caused a specific member of the targeted group to fear the threatened force or violence.

These offences attract a maximum penalty of 5 years imprisonment, and if the conduct would also threaten the peace, order and good government of the Commonwealth, a maximum penalty of 7 years imprisonment.

In these offences, ‘force’ or ‘violence’ refer to physical force or violence against a person.

Offences for advocating or threatening damage to places of worship or property

Sections 80.2BC and 80.2BD of the Criminal Code make it a criminal offence to advocate or threaten damage to places of worship, or the property of members of groups or their close associates.

A person may commit an offence of advocating damage to property if they do all of the following:

  • intentionally advocate damage to property
  • be reckless as to whether the damage will occur
  • believe that the property is a place of worship or is owned or occupied by a member of a group or their close associate
  • be reckless that the targeted person was distinguished by race, religion, sex, sexual orientation, gender identity, intersex status, disability, nationality, national or ethnic origin or political opinion, or was a close associate of a person distinguished by any of those attributes.

A person may commit an offence of threatening damage to property if they do all of the following:

  • intentionally threaten to damage property
  • believe that the property is a place of worship or is owned or occupied by a member of a group or their close associate
  • be reckless that the targeted person was distinguished by race, religion, sex, sexual orientation, gender identity, intersex status, disability, nationality, national or ethnic origin or political opinion, or was a close associate of a person distinguished by any of those attributes
  • be reckless as to whether a reasonable member of the targeted group would fear that the threat will be carried out.

For these offences to apply, the property must be a motor vehicle or real property such as a house, school or business.

These offences attract a maximum penalty of 5 years imprisonment, and if the conduct would also threaten the peace, order and good government of the Commonwealth, a maximum penalty of 7 years imprisonment.

Defences

The general defences in the Criminal Code would apply, including duress or self-defence. There is no good faith defence for these offences.

Report a potential crime

If you feel threatened or unsafe in any way, you can contact police on:

  • 000 for immediate threats
  • 13 14 44 for police attendance at non-life-threatening incidents.

You can report a Commonwealth crime to the AFP online using the Report a Commonwealth Crime form.

You can download the information on this page at Commonwealth hate crime offences