As the New South Wales Government considers reforms to criminal law protections against incitement of hatred, the stakes for women, freedom of expression and genuine social cohesion have rarely been higher. The NSW Women’s Action Alliance (NSWWAA) argues that any changes must carefully protect against serious harm, while not undermining the open debate and sex-based protections and rights, which are foundational to democracy and equality.
Why reform is on the table
Recent years have seen a significant tightening and expansion of hate speech law in NSW. Section 93Z of the Crimes Act 1900 criminalises public threats or incitement to violence motivated by race, religion, gender identity, sexuality, and intersex status — but not sex. However, new offences signal a worrying shift: the Crimes Amendment (Inciting Racial Hatred) Act 2025 introduced section 93ZAA, which makes it illegal to intentionally incite ‘racial hatred’ even if no violence results. Meanwhile, the Anti-Discrimination Amendment (Religious Vilification) Act 2025 has expanded the civil vilification regime to cover acts inciting ‘hatred, serious contempt or severe ridicule’ on religious grounds.
At first glance, these changes suggest firm action against hatred. Yet as NSWWAA points out, lowering the threshold from violence to the much vaguer concept of ‘hatred’ brings new dangers—chiefly, to women’s speech, democratic rights and the participation of women in public debate. And these dangers are far from hypothetical.
Vague thresholds: a slippery slope to censorship
Crucial human rights treaties, such as the International Covenant on Civil and Political Rights (ICCPR) and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), require Australia to strike a delicate balance. Laws must protect against serious harm and incitement to violence, but should never chill open discussion about law, policy or biological reality.
Expanding criminal law to cover mere ‘hatred’ without a nexus to violence blurs that balance. Overseas, the pitfalls are clear. In Scotland, the Hate Crime and Public Order Act 2021 criminalised stirring up hatred, even absent violence. Within a week of the law’s enforcement, thousands flooded police with complaints, most deemed not criminal, fuelling confusion and controversy. Parliamentary calls for reform and evidence of chilling free speech quickly followed. Likewise, Ireland shelved its controversial hate speech clauses after fierce public and political backlash, while New Zealand’s Law Commission and Parliament rejected expanding hate speech offences beyond race, citing the risks to freedom of expression enshrined in the Bill of Rights Act.
Still missing: explicit sex-based protection
Despite expanding protections for other groups, NSW law still does not explicitly protect women and girls as a class — based on our sex — from incitement or vilification. As the submission highlights, an arrangement which shields individuals on the basis of gender identity or religion, but denies women recourse for sex-based hostility, is not only inequitable—it is fundamentally at odds with Australia’s international obligations under the ICCPR and CEDAW.
Adding ‘sex’ as a protected attribute to section 93Z and similar provisions is not only logical but urgent for genuine equality. Without it, courts and agencies are left reinforcing hierarchies that can see female voices and experiences ignored or censored.
Why public interest defences and prosecutorial consent matter
Another central argument from NSWWAA is the need for robust public interest defences in hate speech law. At present, section 93Z contains no explicit carve-outs for academic debate, journalism, scientific controversy or lawful advocacy—leaving those who raise issues about women’s sport, female-only spaces or child safeguarding at the mercy of police and prosecutorial discretion.
Equally vital is reinstating the requirement for independent prosecutorial consent, which until 2024 gave the Director of Public Prosecutions (DPP) the final say on charging decisions under section 93Z. Its removal has made it easier for politically or ideologically motivated complaints to result in criminal proceedings—especially on contentious issues involving sex and gender. International experience in the UK and elsewhere affirms that this mechanism is a key bulwark against misuse.
Online safety, crime data, and the risk of overreach
The digital era heightens these risks. The Online Safety Act 2021 already allows the eSafety Commissioner to order the removal of online content considered ‘harmful’, with limited transparency or public debate. Expanding criminal hate speech law can prompt social media companies to silence dissenting or feminist views simply out of caution, further marginalising women’s voices in public discourse.
Overbroad or poorly targeted offences also distort crime data—especially if administrative sex changes mean offenders are recorded by gender identity rather than birth sex—impacting resource allocation, safety measures and the public’s understanding of patterns in violence and discrimination.
Lessons from overseas—and what NSW must do next
Recent international examples reveal how quickly overbroad hate speech provisions can backfire, producing confusion, chilling debate and triggering calls for reform. Only by retaining a high threshold for criminal liability, accompanied by explicit public interest defences and independent review, can NSW protect both safety and true democratic participation.
What NSWWAA is asking of Parliament
The submission’s recommendations are clear, practical and grounded in law and evidence:
- Maintain the incitement to violence threshold in criminal law.
- Add sex as a protected attribute in all relevant provisions.
- Introduce public interest defences to guard research, reporting and advocacy.
- Restore independent prosecutorial consent for charges.
- Mandate transparent reporting and periodic review of hate speech and vilification law outcomes.
In essence, NSWWAA calls for both courage and caution: protect all citizens—especially women and girls—from real harm, but do not curtail the open debate and evidence-based advocacy that drive progress for everyone. True social cohesion and safety are built not on vague or subjective legal standards, but on the clear mutual respect of rights, evidence and the robust protection of individual liberty.
Read the full submission below, which includes references.
