Nazi symbols, extremist flags and public displays in NSW: what is criminal under the 2026 hate crime reforms
The public display of Nazi symbols and extremist ideology has never been entirely without legal consequence in NSW, but the framework for prosecuting such conduct has expanded significantly in 2026. Following the Crimes Legislation Amendment (Hate Crimes) Act 2026 and earlier reforms targeting Nazi ideology displays, NSW now has a layered set of provisions under which public displays, flags, social media posts, and other acts of public communication can attract criminal charges. Several offences potentially apply, from summary public order provisions at the lower end through to the racial hatred offence and the incitement to violence provision, each carrying different elements and different maximum penalties.
Understanding where the criminal line actually sits – what conduct triggers prosecution, what elements the prosecution must prove, and what genuine defences exist – is important for anyone whose conduct, online or in person, may fall within the scope of these provisions. This article examines each relevant offence, what it requires, and how it applies to practical situations.
The NSW Nazi symbol provisions
NSW has specific legislation targeting the display of the Nazi swastika, known technically as the Hakenkreuz. The Crimes Act 1900 (NSW) was amended to prohibit the intentional public display of this symbol in circumstances where a reasonable person would be offended, subject to a set of exceptions including genuine educational, artistic, research, and religious purposes. The prohibition applies to display in a public place and to display to the public, which is expressly defined to include publication on social media and other online platforms.
The 2026 hate crime reforms built explicitly on this foundation. The Minns Government noted the passage of provisions addressing conduct expressing support for Nazi ideology in the context of the broader June 2026 organised crime and hate crime legislative package. Courts were given enhanced powers to hold those promoting extremist ideologies accountable, and the legislative trajectory is clearly toward treating extremist symbol displays as a serious public order issue rather than an expression issue protected by political speech considerations.
The racial hatred offence – section 93ZAA
The racial hatred offence under section 93ZAA of the Crimes Act 1900 (NSW) commenced in August 2025 and represents the most significant expansion of NSW hate speech law in many years. The offence is committed where a person, by a public act, intentionally incites hatred toward a person or group of persons on the ground of their race, and that public act would cause a reasonable targeted person or a reasonable member of the targeted group to fear harassment, intimidation, or violence. The maximum penalty is 2 years’ imprisonment and an $11,000 fine for an individual.
The phrase “public act” is defined broadly in the legislation to include: speeches, writing, the display of any visible representation, the distribution of material, any conduct performed in public, and any act performed using a carriage service. The explicit inclusion of carriage service conduct means that online activity – posting to social media, distributing material through messaging applications, publishing on any internet platform – constitutes a public act for the purposes of the offence. A person does not need to physically attend a public location to commit the offence; posting extremist content online satisfies the public act requirement.
The objective element of the offence – that a reasonable targeted person or member of the targeted group would fear harassment, intimidation, or violence – is assessed contextually. Courts consider the content of the act, the circumstances in which it was performed, the intended or actual audience, the location, any accompanying conduct, and the nature of the group targeted. A display of an extremist symbol associated with an ideology that has historically targeted a particular racial or ethnic group, performed in circumstances that communicate that targeting, would in most cases satisfy this objective element.
Incitement to violence – the more serious charge
Section 93Z of the Crimes Act 1900 (NSW) provides a more serious charge where conduct moves beyond inciting hatred to specifically inciting or threatening violence. The offence requires proof of a public act that intentionally threatens or incites violence against a person or group on the ground of one of the protected attributes – race, sexual orientation, gender identity, HIV/AIDS status, or religion. This offence is not limited to racial hatred; it captures hate-motivated incitement across all protected attributes.
The distinction between the racial hatred offence under section 93ZAA and the incitement to violence offence under section 93Z is the specificity of the harm targeted: the racial hatred offence captures conduct that would cause a reasonable person to fear harassment or intimidation; the incitement to violence offence requires conduct that specifically threatens or incites violence. In practical terms, displays that are combined with calls to harm members of a particular group, or that are performed in circumstances clearly communicating a threat of violence, may be charged under section 93Z rather than section 93ZAA.
Lower-level public order offences
Even where conduct does not satisfy the elements of the racial hatred or incitement provisions, NSW’s lower-level public order provisions may be engaged. Offensive conduct under section 4 of the Summary Offences Act 1988 (NSW) captures conduct in or near a public place that is offensive to a reasonable person. Courts have found that public displays specifically designed to degrade or demean a particular community can satisfy this test. The maximum penalty is a fine of $660 or three months’ imprisonment. Offensive language under section 4A similarly captures grossly offensive speech in public. These are summary matters dealt with in the Local Court, and they give police a charging option in cases where the higher-threshold offences may be harder to establish on the available evidence.
Online displays – the digital dimension
The explicit inclusion of online conduct within the definition of “public act” across the hate speech provisions has significant practical consequences. A social media post displaying a Nazi flag or extremist symbol, a video posted to any online platform showing an extremist display or rally, the distribution of extremist material through a messaging application to a group with open membership – all of these can satisfy the public act element of the relevant offences as readily as a physical display in a public park or at a political demonstration. The scale of an online display is not relevant to whether the offence is committed; a post seen by a small audience can still constitute a public act. National Criminal Lawyers’s article on protests, social media posts, and hate crime charges examines the online dimension in detail.
The genuine exemptions – education, art, research, religion
The exceptions built into the NSW extremism and hate speech provisions are genuine and meaningful. Display of a prohibited symbol in a genuinely educational context – a classroom, a museum exhibition, a historical documentary, an academic article – is not criminalised by the legislation. Artistic commentary on extremism, journalism covering extremist movements, and research into the history and nature of extremist ideologies all fall within recognised exceptions that the legislation expressly preserves. Religious use of a symbol that has a genuine and distinct religious meaning within a specific tradition is also protected where the use is genuinely religious rather than ideological.
The test across all of these exceptions is whether the use is genuine rather than pretextual. Courts look at the substance and context of the conduct, not the label that the accused attaches to it after the fact. A person who claims an educational purpose for displaying material that in context appears to be celebrating or promoting an extremist ideology, or who dresses ideological advocacy in the language of art or research, will not be protected by the exception.
Contact Us
At National Criminal Lawyers, we advise on hate speech charges, public order offences, and the full range of NSW and Commonwealth provisions that now apply to extremist symbols, flags, and online content. If police have spoken to you about a public display, social media post, or distribution of material that may engage these provisions, early specialist legal advice is essential. Call us at 1800 CRIM LAW for a free consultation. Help us help you understand your situation and get you the best outcome possible.
