The introduction of the Albanese government’s Combatting Antisemitism, Hate and Extremism Act 2026 has sparked intense debate over its potential impact on free speech in Australia. The legislation, which aims to curb hate crimes, includes provisions that could affect the ability of Australians to protest, raising concerns about unintended consequences on free speech.
Initially, the bill contained a controversial clause criminalizing the promotion or incitement of racial hatred. However, this was removed after opposition from both the Coalition and the Greens. Despite this amendment, the act still includes measures allowing for the banning of “prohibited hate groups,” which remains a contentious issue.
Defining Prohibited Hate Groups
Under the new law, a group can be designated as a prohibited hate group if the governor-general issues a regulation based on the advice of the minister for the Australian Federal Police. Several conditions must be met before such a ban can be enacted.
Firstly, the minister must have reasonable grounds to believe that the group has engaged in or is associated with a hate crime, such as preparing, planning, assisting, or advocating such conduct. This serves as the initial trigger for banning a group. Secondly, the minister must determine that banning the group is necessary to protect the Australian community from harm, which can include social, economic, psychological, or physical harm.
“The bill was altered to broaden this requirement, allowing for the protection of ‘part of the Australian community’ and considering the mere presence of the group in Australia as harmful.”
The third condition involves advice from the director-general of security, who must assess whether the group’s activities increase the risk of politically motivated or communal violence. The attorney-general’s agreement is also required, and the opposition leader must be briefed. Notably, any regulation banning a group can be overturned by either House of Parliament.
Understanding Hate Crimes
A pivotal aspect of the legislation is the definition of a “hate crime,” which is crucial for triggering a group ban. Hate crimes are defined as acts of violence based on race, color, or national or ethnic origin, or serious damage to property. This includes threats or advocacy of such violence, and displaying symbols of Nazi or terrorist organizations.
While the original bill included promoting or inciting racial hatred as a hate crime, this was removed due to concerns over its scope. However, inciting racial hatred remains a factor in banning groups, as it can be considered a hate crime if it constitutes an offense under Commonwealth law or specified state or territory offenses.
“This reliance on state offenses creates complexity, as laws vary across regions, affecting the criteria for banning a group based on where the conduct occurred.”
Further complicating the matter, the act states that no crime needs to have been committed, nor does anyone need to have been convicted for conduct to be deemed a hate crime. It suffices for the minister to be reasonably satisfied of the group’s involvement in such conduct.
Free Speech Concerns and Political Criticism
One of the most contentious aspects of the legislation is its potential impact on political speech. Critics argue that the act could chill freedom of expression, particularly when it comes to criticizing foreign governments. Questions have been raised about whether such criticism could be interpreted as a hate crime.
Attorney-General Michelle Rowland addressed these concerns on the ABC’s 7.30 program, stating that several factors would need to be considered before banning a group for criticizing a foreign nation. However, the lack of clarity on what constitutes a hate crime under these circumstances has led to calls for amendments.
“Senator Lidia Thorpe proposed an amendment to clarify that criticism of Israel’s policies does not equate to hate speech, referencing a Federal Court judgement. This amendment was rejected, leaving uncertainty about the act’s implications.”
The rejection of this amendment has fueled concerns that the law could be used to suppress legitimate political discourse. Critics fear that the act could be misapplied, with decisions potentially challenged on administrative or constitutional grounds.
Looking Ahead: Legal and Social Implications
The debate over the Combatting Antisemitism, Hate and Extremism Act 2026 underscores the delicate balance between combating hate and preserving free speech. As the legislation is implemented, its impact on civil liberties and public discourse will be closely monitored.
Legal experts suggest that challenges to the act may arise, particularly if groups are banned under contentious circumstances. The potential for judicial review and constitutional challenges highlights the ongoing tension between security measures and democratic freedoms.
As Australia navigates these complex legal and social issues, the broader implications for free speech and civil rights remain a critical area of concern. The government’s approach to implementing and interpreting the act will be pivotal in shaping the future landscape of political expression and public protest in the country.
