How do Australia’s state vilification laws differ and interact with the 2026 federal hate speech reforms?
Executive summary
Australia’s states and territories have long held distinct civil and criminal vilification regimes targeting public conduct such as racist graffiti and public remarks, while the 2026 federal package creates new national offences, a hate-group listing power and migration consequences that overlay—but do not wholly replace—state laws [1] [2] [3]. The interaction is intentionally porous: federal ministers and listing regimes will rely on state vilification thresholds when deciding whether organisations meet “hate group” criteria, and the federal reforms stop short of fully subsuming state schemes after political pushback removed some proposed federal vilification clauses [4] [5] [6].
1. How state vilification laws currently differ from federal reform proposals
State and territory vilification laws historically regulate public behaviour—graffiti, publications, public statements—often as civil offences or under specialised anti‑vilification statutes rather than as federal criminal offences, with an emphasis on protecting groups from public harassment rather than policing private belief [1]. The 2026 federal package, passed as the Combatting Antisemitism, Hate and Extremism (Criminal and Migration Laws) Act 2026, creates a new federal offence for inciting racial hatred, establishes aggravated penalties for leaders who advocate violence and grants powers to list and proscribe organisations deemed hate groups—measures that go further than many state civil regimes by adding criminal sanctions and migration consequences [1] [2] [3]. Importantly, political compromise removed the original federal criminal vilification clause from the final omnibus bill, reflecting differences in purpose and scope between state civil schemes and the federal criminalisation thrust [6] [1].
2. The legal and practical mechanics of interaction
Federal listing and proscription mechanics are expressly designed to take state laws into account: Attorney‑General and ministerial assessments may consider whether conduct breaches relevant state racial vilification laws as part of the test for labeling an organisation a “hate group,” meaning a state civil finding or the existence of an applicable state standard can be a decisive trigger for federal action [4] [5]. At the same time, federal criminal law retains its own thresholds—such as the new offence for incitement of racial hatred under the Criminal Code—so a single set of facts could give rise to state civil enforcement, federal criminal charges where national offence elements are met, and federal migration outcomes like visa cancellation [3] [2] [7].
3. Political tensions and differing policy aims
The federal reforms emerged in a charged political context after the Bondi Beach attack, with the government framing the package as necessary to tackle antisemitism and extremist groups and to empower deportation and listing powers, while critics warned about rushed drafting and disproportionate reach [2] [8]. The Nationals and some Liberals expressed free‑speech concerns, forcing Labor to drop contentious anti‑vilification measures and split parts of the omnibus bill, showing the federal agenda was constrained by political compromise and by differing state approaches to vilification [6] [4].
4. Human rights, scope gaps and advocacy responses
Legal reform critics, including the New South Wales Law Reform Commission and civil liberties commentators, have flagged “hatred” as an imprecise criminal standard and warned of unintended consequences from criminalising expressive conduct; equality advocacy groups also argue the new federal measures leave gaps for groups such as LGBTIQ+ people who remain less protected under the race‑focused scheme [9] [10] [11]. Proponents cite newly available federal tools—criminal offences for incitement, aggravated penalties for leaders, and powers to list organisations—as necessary to address cross‑jurisdictional extremism and to act where state civil law alone is insufficient [2] [3].
5. What remains legally unsettled and where state law still matters most
Despite federal additions, states retain primary responsibility for day‑to‑day vilification enforcement and for shaping the substantive content of what constitutes vilification in practice; federal action often depends on state law thresholds for operationalising listing powers, and many civil remedies and local prosecutions will continue to be governed by state statutes—so the federal reforms are best seen as a complementary, not wholesale replacing, layer [4] [1] [3]. Reporting does not fully resolve long‑term interactions, such as how courts will reconcile overlapping state civil findings with new federal criminal elements, so significant legal questions will be settled only through litigation and future legislative refinement [9].