The Offence of Publicly Inciting Hatred on Grounds of Race in New South Wales

New South Wales police officers stopped 31-year-old Brandan Koschel on Gadigal land on Bourke Street in Surry Hills at around 2.50 pm on Monday, 26 January 2026, over his allegedly having incited hatred on the basis of race, when he launched into an antisemitic tirade during an open mic as part of the antiimmigration March for Australia rally in Sydney’s Moore Park.

The man who lives on Bidjigal land in the southern suburb of Peakhurst was then taken in the back of a paddy wagon to Surry Hills police station, and he went on to appear before the NSW Bail Division Court on Tuesday, and NSW Magistrate Daniel Covington, who explained that he’d been carefully reading the legislation under which the man had been charged, went on to deny him bail.

The police prosecutor put to the court on Tuesday that Koschel had been at a rally with “known members or associates” of recently disbanded neo-Nazi group the National Socialist Network, and open-source information on the internet suggests that he had been a member of the NSN. Indeed, after his prejudicial diatribe, Koschel praised high-profile NSN figures.

The arrest over making antisemitic statements at an antiimmigration/white nationalist rally occurred at a time of heightened racial tensions in the wake of ISIS-inspired killers targeting a Jewish event on Gadigal land at Bondi Beach on 14 December 2025, to murder 15 people. And a swag of laws and policies have since been progressed to prevent the type of behaviour that Koschel partook in.

The offence of incitement to hatred on the ground of race, however, is a controversial law that the Minns government produced at the last minute in February 2025, as part of a suite of hate crime and antiprotest laws drafted in response to a crimewave consisting of arson and graffiti attacks on Jewish property, which were progressed by organised crime to convey an uptick in antisemitic sentiment.

Inciting hatred on racial grounds

The offence of publicly inciting hatred on grounds of race is contained in section 93ZAA of the Crimes Act 1900 (NSW). The offence carries a maximum penalty of 2 years imprisonment and/or a fine of $11,000 for an individual, or a fine of up to $55,000 for a company.

In order to prove the offence, the prosecution must establish beyond reasonable doubt that an individual or company incited hatred towards another person or a group because of their race, via public act, and this would cause a reasonable person targeted, or a reasonable person who is a part of the group being targeted, by the public act to “fear harassment, intimidation or violence” or to fear for their safety.

As per section 93Z of the Crimes Act, a public act is defined as “any form of communication… to the public”, including “speaking, writing, displaying notices, graffiti, playing of recorded material, broadcasting and communicating through social media and other electronic methods”. And as for race, it includes “colour, nationality, descent and ethnic, ethno-religious or national origin”.

However, if the person is quoting a religious text, then the prohibition on inciting racial hatred “does not apply” if they only engage in an act that consists of “directly quoting from or otherwise referencing a religious text for the purpose of religious teaching or discussion”.

The NSW Director of Public Prosecutions or a police officer can commence a prosecution under this offence. The section makes clear that during a trial, it is irrelevant if the alleged offender’s assertions about the person of another race were accurate or not, and neither is it relevant if the alleged offender’s behaviour had caused another to form “a state of mind” or carry out “an act of hatred”.

Defences applying to inciting racial hatred

There are a number of defences that can apply to the offence of publicly inciting hatred on grounds of race that accompany the statutory offence under subsection 93ZAA(2) of the Crimes Act, which provides that quoting from a religious text does not result in the commission of a crime.

There are a number of good faith or public interest defences against this crime, which all revolve around having engaged in such behaviour in public in order to convey the action in an artwork or to deal with the criminal behaviour in an academic sense, along with journalistic reporting on incidents that involve incitement or engaging in public debate around the offending behaviour.

Further regular defences can also be argued. These include the defence of duress, which involves an accused having perpetrated a crime in order to avoid a threat being carried against them or a loved-one. And the threat must be serious enough to have warranted committing the crime to avoid it.

The defence of necessity is also available. This would involve the defendant claiming they committed a crime in order to avoid a much greater harm or more dire circumstances if they had not broken the law.

A controversial law

In the wake of a so-called antisemitic crimewave that swept through Greater Sydney from October 2024 to early February 2025, the Minns government passed three pieces of legislation in a rushed manner over February 18 to 21 last year.

The Crimes Amendment (Inciting Racial Hatred) Bill 2025, which created the 93ZAA offence was introduced without notice on 18 February, to accompany the Crimes Amendment (Places of Worship) Bill 2025 and the Crimes Legislation Amendment (Racial and Religious Hatred) Bill 2025.

The last-minute arrival of the Inciting Racial Hatred Bill was likely because parliaments have been wary of enacting such a broad law in the past, because it can curb the right to freedom of expression, or free speech. And the reach of these types of laws is not properly understood until tested by the courts, at which stage they can be found to capture behaviour that they weren’t designed to.

“This bill is the third government bill this session that responds to the recent instances of antisemitic behaviour that we have seen in Sydney,” said NSW attorney general Micheal Daley, on introducing the bill on 18 February 2025. “It does so by creating an offence of intentionally inciting hatred by a public act towards a person on the ground of race.”

NSW Greens justice spokesperson Sue Higginson told the upper house that she “unsurprisingly” opposed the law. She pointed to warnings from the then president of the NSW Bar Association Dr Ruth Higgins SC, who considered that the law was too vague and imprecise to properly prosecute under.

To further give some scope around the incitement to hatred offence, the Albanese government attempted to enact the same law at the federal level a fortnight ago, as part of an omnibus bill in response to the Bondi Beach massacre. However, the Liberals and the Greens opposed the creation of this offence, based on overreach issues. So, it was promptly dumped by the prime minister.

The 93ZAA NSW offence came into play on 15 August 2025. The Herald reported in December that two people had been charged under it by last November. One of the charges had later been dropped, while the progress of the other charge was unknown. And a controversial neo-Nazi rally before NSW parliament last November resulted in no such charges being laid.