Shoppers are noticing a political tussle play out in law: NSW’s Minns Labor government has declined to follow its own expert review recommendation to extend the state’s criminal incitement-of-hatred offence beyond race, leaving LGBTQ+ people with a different , and for some, weaker , legal shield. Here’s what happened, why it matters, and what comes next.

Essential Takeaways

  • Key decision: The NSW Government will not expand section 93ZAA’s racial hatred offence to cover sexual orientation, gender identity or other attributes.
  • Existing protections: Section 93Z already criminalises public threats or incitement to violence against groups protected by attributes including sexuality and gender identity.
  • Expert advice ignored: The Sackar Review recommended treating all attributes consistently rather than keeping race as a standalone hatred offence.
  • Advocates outraged: LGBTQ+ groups warn this creates a two-tier system and leaves their communities more exposed to harmful rhetoric.
  • Government rationale: Officials say extending the hate-hatred offence raises complex freedom-of-expression and legal-consistency questions that need further work.

What the Sackar Review actually proposed , and what was rejected

The Sackar Review, led by former NSW Supreme Court Justice John Sackar, urged the state to broaden the specific criminal offence that targets intentionally inciting hatred on racial grounds so it covered the other attributes already listed in section 93Z. That would have meant the same legal test for inciting hatred applied whether the target was a racial group, a faith community, or LGBTQ+ people. The recommendation read as a push for consistency , and for many advocates, fairness. But the Minns Government has opted not to adopt that central change, saying more careful consideration is needed around how such an expansion could interact with freedom of expression and religious rights. The immediate result is that NSW keeps a distinct criminal offence for racial hatred while relying on existing incitement-to-violence rules for other groups.

Why advocates say this creates a dangerous two-tier system

Groups such as Equality Australia and community health bodies have been blunt: having a separate, stronger-sounding offence for race but not for sexuality or gender identity sends a signal that protections aren’t equal. They argue NSW has already shown it can balance free-speech rights against protection from racial hatred, so applying the same approach to LGBTQ+ and other communities isn’t legally impossible , it’s a choice. For community advocates, it’s about more than legal drafting; it’s about recognising that hateful speech fuels real-world harm, mental-health impacts, and increased risk of violence. Expect campaigning and legal scrutiny to continue as advocates press the government for parity.

The government’s line: caution over rights and consistency

Attorney-General Michael Daley and the Minns cabinet framed the decision as careful rather than dismissive. Officials say expanding the racial-hatred offence would prompt knotty questions about free expression, religious freedoms and the consistent application of criminal law. That’s the stated reason for pausing , a pragmatic claim that policy of this kind needs detailed balancing tests and drafting to prevent unintended consequences. Whether the public accepts that caution or reads it as hedging under political pressure will shape how the debate unfolds in parliament and the media.

What this means in practice for people and policing

On the ground, the split means threatening or inciting violence against an LGBTQ+ person remains criminalised under section 93Z, but deliberately whipping up hatred without threats might not attract the same penalty as similar conduct directed at a racial group. That distinction is both subtle and significant: prosecutors, police and victims will still have routes to action where violence is threatened, but other forms of harmful public vilification could go unpunished or be handled through civil avenues. If you’re an advocate, lawyer or community worker, the practical advice is to document incidents carefully and seek both criminal and anti-discrimination remedies as appropriate.

Where the story goes from here , politics, law reform and campaigns

This episode isn’t merely a legal footnote: it follows months of tension inside the NSW Parliament over access to the review and broader promises to strengthen protections. Expect renewed lobbying from LGBTQ+ groups, rights organisations and some opposition MPs, alongside calls by the government for more technical work. The longer-term shape of law reform will depend on political will, legal advice and whether public pressure persuades ministers to revisit Sackar’s suggestion. For now, NSW remains in a patchwork position on hate-incitement protections , a situation that will keep the conversation very much alive.

It's a small legal decision with big social consequences, and the debate is far from over.

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