Tasmania has expanded its hate crime sentencing laws beyond racial prejudice to cover religion, gender identity, disability, and more. Here's what the new aggravating factors provisions mean.
Since 23 December 2025, Tasmania’s sentencing laws have been significantly expanded to treat a much wider range of prejudice-motivated offending as an aggravating factor at sentencing. This article explains the recent amendments to the Sentencing Act 1997 (Tas), including the expanded section 11B and the new section 11BA, how courts will apply the new provisions, and what a person facing charges should know.
Important Disclaimer: This article provides general information about Tasmanian law as at February 2026. It is not legal advice. Every situation is unique, and the application of the law depends on your specific circumstances. You should seek independent legal advice from a qualified lawyer before making any decisions.
On 23 December 2025, the Sentencing Amendment (Aggravating Factors) Act 2025 (Act 33 of 2025) received Royal Assent and commenced immediately. The Act amends the Sentencing Act 1997 in two key ways:
Section 11B has been significantly broadened. Previously, this section only required courts to treat offending motivated by racial hatred or prejudice as an aggravating factor. It now covers a wide range of protected attributes, including religion, gender identity, sexual orientation, disability, and more.
A new section 11BA has been inserted. This provision requires courts to consider whether an offender selected their victim because of the victim’s vulnerability or personal circumstances.
The legislation passed both houses of the Tasmanian Parliament unanimously. It implements the four recommendations of the Sentencing Advisory Council’s Final Report, Prejudice and Discrimination as Aggravating Factors in Sentencing, which was released in May 2024.
Prior to these amendments, Tasmania was the only Australian state or territory where the statutory aggravating factor for prejudice-motivated offending was limited solely to racial grounds. Section 11B of the Sentencing Act 1997, as originally enacted in 2017, required courts to consider whether an offence was motivated by “hatred for or prejudice against, on racial grounds, any victim of the offence.”
While racial motivation has always been an important consideration, the provision left a significant gap. If an offence was motivated by hostility toward a person’s religion, sexual orientation, gender identity, disability, or other characteristics, there was no equivalent statutory direction to the court to treat that motivation as an aggravating factor.
In 2023, the Tasmanian Government asked the Sentencing Advisory Council to examine whether section 11B should be expanded. The Council’s Final Report, released in May 2024, made four key recommendations:
The Council’s research highlighted that victims of bias-motivated offending experience significantly greater psychological harm compared to victims of similar offences without a bias element. Studies cited in the report found that victims of bias-motivated assault experience a 150 per cent greater likelihood of suffering traumatic feelings compared to victims of non-bias offences.
The Government accepted all four recommendations and introduced the Sentencing Amendment (Aggravating Factors) Bill 2025 into Parliament in August 2025.
Under the amended section 11B, a court must consider whether an offence was motivated to any degree by hatred for, or prejudice against, a victim based on any of the following attributes:
This list is illustrative and non-exhaustive. The inclusion of “any other prescribed attribute” means that additional characteristics can be added by regulation in the future without requiring a further amendment to the Act itself.
It is important to understand that the provision covers offending motivated by hatred or prejudice against a victim’s actual attributes, as well as attributes that the offender perceived or believed the victim to have. This means that if an offender attacks a person because they believe that person belongs to a particular group — even if the victim does not — the aggravating factor can still apply.
One of the most significant aspects of the reform is the introduction of a “demonstrated hostility” model alongside the existing test of subjective motivation.
Under the previous version of section 11B, the prosecution effectively needed to establish that the offender was motivated by racial hatred or prejudice. Proving motivation can be difficult — it requires the court to draw inferences about a person’s internal state of mind.
The amended provision introduces an alternative pathway. A person is now taken to have been motivated by hatred or prejudice if they demonstrated or expressed hostility or malice about a person’s protected attribute:
This means that if an offender uses slurs, makes derogatory comments, or otherwise expresses hostility related to a protected attribute in the course of committing an offence, the court can treat this as evidence of a hate-motivated offence — without needing to separately establish that the hostility was the offender’s underlying motivation.
This is a significant practical change. It means, for example, that if a person commits an assault and uses homophobic, racist, or disability-related slurs during the incident, the “demonstrated hostility” may be sufficient for the court to treat the offence as aggravated under section 11B, even if the offender claims the prejudice was not their primary reason for committing the offence.
As with the original provision, the amended section 11B also applies where the offender’s hatred or prejudice was directed not at the victim personally, but at a person or group of persons with whom the victim was associated, or was believed by the offender to have been associated. This covers situations where, for example, a person is targeted because of the religious community they are perceived to be part of, even if the victim does not personally hold those beliefs.
The Sentencing Amendment (Aggravating Factors) Act 2025 also inserted a new section 11BA into the Sentencing Act 1997. This provision addresses a related but distinct issue: victim vulnerability.
Under section 11BA, a court must take into account, as an aggravating circumstance, whether the offender selected or targeted the victim due to the vulnerability or personal circumstances of the victim, whether actual or as perceived by the offender.
The relevant factors include the same protected attributes listed in section 11B (race, age, religious belief, gender identity, disability, and so on), as well as:
This provision is designed to capture offending where the motivation may not be hatred or prejudice in the traditional sense, but where the offender deliberately chose a vulnerable victim — for example, targeting an elderly person, a person with a disability, or a person in a position of dependence on the offender.
The two provisions work alongside each other but address different aspects of offending:
| Section 11B | Section 11BA | |
|---|---|---|
| Focus | Motivation by hatred or prejudice | Targeting based on vulnerability |
| Mental element | Hatred, prejudice, or demonstrated hostility | Selection or targeting of victim |
| Purpose | Addresses bias-motivated offending | Addresses exploitation of vulnerability |
| Attributes covered | Protected attributes (race, religion, etc.) | Same attributes plus personal relationship |
In some cases, both provisions may apply to the same offence. For example, if a person assaults someone with a disability out of hostility toward people with disabilities, both section 11B (prejudice motivation) and section 11BA (targeting vulnerability) may be relevant.
When a court finds that an offence was aggravated under section 11B or section 11BA, this does not create a separate offence or change the maximum penalty available. Instead, it is a factor that the court must weigh in determining the appropriate sentence within the existing sentencing range.
In practice, this means that an offence found to be motivated by hatred or prejudice, or to have involved the targeting of a vulnerable victim, is likely to attract a more severe sentence than the same offence without those features.
The court retains discretion in how much weight to give the aggravating factor, taking into account the overall circumstances of the offence and the offender. However, the statutory direction means the court must consider it — it is not optional.
For the aggravating factor to apply, the prosecution must establish the relevant facts to the criminal standard — that is, beyond reasonable doubt. This is an important protection for people facing charges.
However, under the “demonstrated hostility” model, the evidentiary burden may be more straightforward in some cases. Where there is clear evidence of hostile language or conduct directed at a protected attribute during or around the commission of the offence, the court may be satisfied of the aggravating factor without the prosecutor needing to prove the offender’s underlying motivation.
Consider the following examples of how the new provisions might apply:
An assault accompanied by racial slurs — Under the amended section 11B, the use of racial slurs during the assault is likely to be treated as “demonstrated hostility,” allowing the court to find the offence was aggravated by racial prejudice.
A robbery targeting an elderly person because of their perceived vulnerability — Section 11BA may apply if the court finds the offender selected the victim because of their age and perceived vulnerability.
Online harassment targeting a person because of their sexual orientation — The expanded section 11B now covers sexual orientation as a protected attribute, meaning online harassment motivated by homophobia can be treated as an aggravated offence at sentencing.
An assault on a person with a disability, accompanied by derogatory comments about their disability — Both section 11B (demonstrated hostility toward disability) and section 11BA (targeting a vulnerable person) may apply.
These are illustrative examples only. Whether the aggravating factor applies in any given case will depend on the specific facts and circumstances.
If you are facing criminal charges in Tasmania and there is a possibility that the new aggravating factors provisions could be raised at sentencing, there are several important things to be aware of.
The Sentencing Amendment (Aggravating Factors) Act 2025 commenced on 23 December 2025, the date it received Royal Assent. The expanded provisions apply to offences committed on or after that date.
For offences committed before 23 December 2025, the previous version of section 11B (limited to racial grounds) continues to apply. However, it is worth noting that even before the amendment, courts always had a general discretion to consider the circumstances of an offence, including any prejudice-related aspects, when determining the appropriate sentence. The amendment makes this consideration a statutory requirement for a broader range of attributes.
The prosecution bears the burden of establishing the aggravating factor to the criminal standard. A person cannot be subjected to a harsher sentence on the basis of the aggravating factor unless the court is satisfied beyond reasonable doubt that the relevant criteria are met.
The “demonstrated hostility” model looks at conduct “at the time of committing” the offence, or “immediately before or after” it. This means that statements made during, immediately before, or immediately after an offence may be relevant — but the court will assess these in context. Isolated or ambiguous statements may not be sufficient.
Similarly, the question of whether an offender “selected” a victim because of their vulnerability under section 11BA is a factual question that will be assessed on the evidence in each case.
The application of aggravating factors at sentencing can have a significant impact on the outcome of a case. If there is any possibility that the prosecution may seek to rely on section 11B or section 11BA, obtaining experienced legal advice early is essential. A lawyer can assess the strength of the evidence, advise on the likely approach of the prosecution, and present arguments on your behalf at sentencing.
Tasmania’s amendments bring the state into line with most other Australian jurisdictions, which already had broader hate crime sentencing provisions in their legislation. However, some aspects of Tasmania’s new framework are notable:
The inclusion of a “demonstrated hostility” test alongside subjective motivation makes it easier for the prosecution to establish the aggravating factor in cases where there is clear evidence of hostile conduct, even if the offender’s underlying motivation is disputed.
The separate section 11BA for victim vulnerability provides a distinct framework for addressing offending that targets vulnerable people, even where prejudice or hatred may not be the primary motivation.
The non-exhaustive list of attributes with the capacity to add further prescribed attributes by regulation provides flexibility for the law to evolve without requiring further legislative amendment.
If you are facing criminal charges in Tasmania and are concerned about how the new aggravating factors provisions may affect your case, our experienced criminal lawyers can assist. We can review the circumstances of your matter, explain how the sentencing laws apply to your situation, and represent you at all stages of the court process.
Whether you are facing charges in the Magistrates Court or Supreme Court, our team can provide you with clear, practical advice about your options.
Contact us today for a confidential discussion about your situation.
This article provides general information about Tasmanian law as at February 2026. It is not intended as legal advice. The law may have changed since this article was written. You should seek independent legal advice from a qualified lawyer regarding your specific circumstances.
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