Can a protest chant, placard or Instagram post become a criminal charge in NSW? What the new hate-speech laws really mean

A lot of people assume criminal law only steps in when words become violence. But in NSW, that is no longer the whole story.

In the last year, hate-speech and public-order law has moved quickly, driven by rising public concern about antisemitism, extremist rhetoric, intimidation near places of worship, and the way protest slogans spread online and offline at the same time. For ordinary people, the legal risk is no longer theoretical. A chant at a rally, a caption on Instagram, a placard outside a synagogue, or a public speech in a heated crowd can now attract very serious legal scrutiny – and in the wrong case, a criminal charge, especially with the introduction of new racial hatred laws.

What people are usually asking is not a constitutional-theory question, but more immediate questions: Can police charge me over words alone? Does it matter if I was at a protest? What if I reposted someone else’s video? What if I was criticising a government, not attacking a racial group? Could this become an AVO, bail issue, or online-carriage-service charge too? Those are exactly the kinds of borderline scenarios where early legal advice matters. National Criminal Lawyers® already has a strong internal article here – “New Terrorism and Hate-Speech Laws in NSW: Post-Bondi Beach” – and this article too is designed to sit alongside it while being even more practical for a reader already worried about police attention.

Why this topic matters right now

The legal background is unusually live. NSW’s official guidance says that, from 15 August 2025, it became a crime in NSW to intentionally incite hatred against people because of their race. The law applies to public acts, and the government’s own examples include speeches, social media posts, graffiti and chants at rallies. At the same time, post-Bondi public debate has pushed hate speech, protest restrictions, extremist symbols and public intimidation much further into mainstream criminal-law discussion than they were only a few years ago.

The wider social context also matters. The Executive Council of Australian Jewry reported 1,654 anti-Jewish incidents in Australia in 2025, down from 2024’s spike but still described as “deeply troubling”, while ABC reported that concern remains especially high in NSW because abuse, intimidation and threats continue to sit well above pre-2023 levels. That does not determine any individual guilt. But it does explain why police, Parliament and prosecutors are operating in a more aggressive enforcement environment around hate-driven public conduct.

What is the actual NSW offence?

The clearest new offence is s 93ZAA of the Crimes Act 1900 (NSW): publicly inciting hatred on the ground of race. The provision says a person commits an offence if, by a public act, they intentionally incite hatred towards another person or group on the ground of race, and the act would cause a reasonable targeted person – or reasonable member of that targeted group – to fear harassment, intimidation or violence, or to fear for their safety. The maximum penalty is 2 years’ imprisonment and/or an $11,000 fine for an individual, with corporations facing up to $55,000. The NSW Government’s own explanation emphasises that the offence is about public conduct, intention, and serious impact, not merely “offence taken”.

That wording is critical for readers, because it shows where the legal threshold actually sits. The offence is not drafted as “saying something unpopular” or “causing controversy”. The prosecution still has to prove a public act, intentional incitement of hatred, and the reasonable-person fear element. Those are real elements, and they are where a defence often lives.

This is not just about speeches – social media counts too

One of the most important practical points in the NSW Government’s own guidance is that a “public act” includes a social media post. That means a reader should stop thinking only about megaphones and rallies. An Instagram story, X post, Facebook caption, TikTok video, or repost of protest footage with commentary can potentially satisfy the “public” part of the offence far more easily than people realise. And because online conduct is preserved, screen-recorded and circulated, it is often much easier for police to investigate than a fast-moving crowd event.

That online dimension also creates overlap with federal law. National Criminal Lawyers® coverage of the offence “Use Carriage Service to Menace, Harass or Cause Offence”, and another on “Can You Be Charged for What You Say Online?” are both useful because many cases that begin as “heated posting” are not charged as hate offences at all – they are charged as carriage-service offences, intimidation, or lower-level public-order offending, depending on what the words actually conveyed and how police choose to frame the conduct.

Where is the line between political expression and criminal incitement?

This is the question readers care about most, and it is where sloppy online commentary becomes dangerous.

NSW’s official guidance expressly says the law is not about banning free discussion of politics, government policy or religion. It says people can still share views and debate issues “as long as it doesn’t encourage others to hate people based on race.” It also expressly protects direct quotation or reference to religious texts for religious teaching or discussion. That means the legal battle is usually not about whether a topic is controversial. It is about whether, in context, the words were being used to stir up hatred toward a racial or ethno-religious group in a way that crosses the statutory line.

That is exactly why context matters so much. A slogan used in one setting might be argued to be political hyperbole; in another, it may be alleged to be incitement or intimidation. A standalone phrase can look very different when paired with group conduct, location, symbols, repeated targeting of a community, or explicit references to violence. National Criminal Lawyers®’ post-Bondi article makes this point well: the legal risk is rarely “these words exist”; the risk is what offence the prosecution says the words prove.

What other offences might police use instead?

This is where a practical reader needs more than one statute.

First, NSW already has s 93Z, which criminalises public acts that threaten or incite violence toward a person or group on protected grounds. This is the obvious escalation pathway where police say the conduct went beyond hatred into violence or encouragement of violence. Second, there is offensive language under s 4A of the Summary Offences Act 1988 (NSW), which is a lower-level public-order offence police can and do use where they think public conduct was inflammatory but may not meet the higher incitement thresholds. Third, if the conduct occurs through phones, DMs, email, messaging apps or online platforms, federal carriage service charges may come into play. National Criminal Lawyers®’ carriage-service pages are very useful on this because they explain how quickly late-night texts, abusive posts or repeated online contact can become Commonwealth matters.

So you should not think only in terms of “the new hate-speech law”. Police may reach for a different offence entirely, especially where the conduct is mixed in with threats, repeated harassment, or online abuse directed at an individual.

What if the conduct happened near a place of worship or in a highly charged crowd?

That is where the practical risk rises sharply.

The post-Bondi reform climate has not only been about words. It has also been about community intimidation, public assemblies, symbol displays and whether police need stronger powers around emotionally charged incidents. Our January 2026 article points out that NSW moved quickly on terrorism-adjacent and public-safety reforms after the Bondi attack, including time-and-place restrictions after declared terrorist incidents and increased attention to public-order control. That does not mean all protest speech is criminal. It does mean police and the courts are now looking much more carefully at whether slogans and banners are part of a broader intimidating event.

And that matters for bail too. If police allege not just “speech” but intimidation of a targeted community, threats, crowd incitement, or risk of further similar conduct, bail can become harder. Even before conviction, a reader may find themselves dealing with no-contact conditions, area restrictions, internet-use limits, or strict public-order bail terms.

What if you only reposted something or used someone else’s slogan?

That is exactly the kind of fact that scares readers, and rightly so.

Reposting is not a guaranteed defence. If the repost itself is public, intentional, and used in a way alleged to incite hatred or menace others, the fact that the words were not originally yours may not end the matter. On the other hand, reposting for reporting, criticism, commentary, documentary or political discussion can be legally very different from reposting as endorsement or incitement. This is why the prosecution’s case will usually turn on context: the account, caption, surrounding commentary, audience, history, and whether a reasonable targeted person would fear harassment, intimidation or violence.

That is also why readers should avoid two very common mistakes: first, assuming “it was political, so it must be protected”; and second, assuming “I didn’t write it, so it can’t be my problem.” Neither assumption is safe in a modern speech-based prosecution.

What kinds of evidence do police usually rely on?

In these cases, police often rely on very plain evidence:
screenshots, rally footage, livestreams, media clips, police body-worn video, banners, placards, captions, message threads and account-ownership material. If the matter involves online posting, the prosecution may also try to prove authorship through phone records, account access, IP-related evidence, admissions, or associated messages. Our carriage-service page is strong on this point: speech-based electronic prosecutions often turn less on what a person now says they meant, and more on what the surrounding digital record shows.

For the reader already in trouble, the practical takeaway is simple: do not assume deleting the post fixes the legal risk. It often does not. Screenshots, reposts and cached material mean the evidence may already be preserved.

Contact Us

If police are asking questions about something you said at a rally, posted online, shared in a group chat, or displayed publicly, do not assume it is “just politics” or “just words.” In NSW, speech can now intersect with hate-crime law, public-order offences, online carriage-service offences, intimidation allegations and bail restrictions far more quickly than many people realise.

At National Criminal Lawyers®, we understand how speech-based allegations are actually built and defended – from the wording of the offence, to context, digital evidence, police charging choices and strategic negotiations. We know these cases are often about nuance, and nuance is exactly where good defence work matters most.

Call us at 1800 CRIM LAW for a free consultation. Help us help you understand your situation and get you the best outcome possible.