Prohibited Hate Groups

A prohibited hate group is an organisation that the government has specified (listed) as a prohibited hate group by regulations made under the Criminal Code Act 1995. To be listed as a prohibited hate group, an organisation must have:

• engaged in, prepared or planned to engage in, or assisted the engagement in, conduct constituting a hate crime, or
• advocated (whether or not in Australia) engaging in conduct constituting a hate crime, other than an offence against sections 80.2A, 80.2B, 80.2BC or 80.2BE of the Criminal Code (advocacy offences).

Specifying an organisation as a prohibited hate group must also be reasonably necessary to protect the Australian community or part of the Australian community against social, psychological, physical or economic harm.

Before an organisation can be listed as a prohibited hate group, the Australian Federal Police (AFP) Minister must receive advice from the Director-General of Security recommending that an organisation be considered for listing. The AFP Minister must also seek written agreement for the listing from the Attorney-General and arrange for the Leader of the Opposition to be briefed on the proposed listing.

The Attorney-General’s role in agreeing to the listing acts as an additional safeguard, ensuring that all legal and other relevant matters have been considered as part of the decision to list an organisation as a prohibited hate group.

You will find listed prohibited hate groups and the criteria for listing, including relevant definitions, on the Australian National Security website.

Offences in relation to prohibited hate groups

Prohibited hate groups offences are detailed in Division 114B of the Criminal Code Act 1995.

Under Division 114B it is an offence to:

• direct the activities of a prohibited hate group
• be a member of a prohibited hate group
• recruit for a prohibited hate group
• train or receive training from, or participate in training with a prohibited hate group
• acquire funds for, from or to a prohibited hate group
• provide support to a prohibited hate group

There are general defences for legitimate and unavoidable interactions with a prohibited hate group including acting in accordance with a Commonwealth arrangement or agreement, or performing official duties.

There are also offence specific defences for some of the offences, such as the membership offence which includes a defence for a person who can prove they took all reasonable steps to cease to be a member as soon as practicable after knowing the organisation was a prohibited hate group.