Calling Out the Government’s Claim that Hate Group Laws Won’t Criminalise Criticism of Israel

In a letter in response to a complaint about the recently enacted ‘prohibited hate groups’ regime, attorney general Michelle Rowland confirmed to the Australian National Imams Council (ANIC) that the framework and other hate crime measures passed on 20 January 2026 will not impinge upon Muslim religious leaders’ ability to criticise foreign governments or political ideologies.

In the lead up to the passing of the laws, a rising concern was whether the listing of groups assessed to be hate groups, which in turn prohibits them and criminalises their members, might be a means to suppress the diverse pro-Palestinian movement that has risen up locally since October 2023, and further in doing so, stamp out valid criticism of Israel and the genocide it’s committing in Gaza.

The letter, reports the Herald, was cosigned by home affairs minister Tony Burke and it addressed ANIC president Imam Shadi Alsuleiman, who’d written to the chief lawmaker concerned that the new laws prevented criticism of Israel and the political doctrine underscoring its settler colonial project, which is Zionism.

But the suggestion that Islamic preachers, and more broadly, the general public, can criticise Israel in the letter, counters what the AG had previously told the ABC’s 7.30.

The confirmation that criticising Israel and Zionism will not see one fall foul of the law coming from Rowland and Burke appears problematic, as the new hate group laws are so broad that they give no guarantee that criticising a political entity is protected if it to be considered by some to be a part of a religious identity.

Indeed, in writing to tell the ANIC that it’s permitted to discuss Israel and Zionism in a critical manner is likely a dangerous move as it provides false assurance, as while federal Labor, Rowland and Burke all remain in power, they might be able to ensure that reading of the law, but if politicians with different views take office, this law could easily apply in the manner Alsuleiman is concerned about.

Mixed signals

Rowland’s letter states that various hate crime measures contained in the Combatting Antisemitism, Hate and Extremism (Criminal and Migration Laws) Bill 2026 won’t “prevent legitimate, nonviolent criticism of the actions of a foreign country or of particular political ideologies”. This suggestion covers hate group laws, the heightening of penalties around hate crimes and tightening of visa rules.

As the title of the bill suggests, these laws are being brought in to primarily ‘curb antisemitism’, or prejudice against Jewish people, and this is being done in the wake of the 14 December 2025 Bondi Beach mass murder as it targeted a Jewish religious event. And these news laws have been progressed at the same time as a combating antisemitism plan is being implemented by government.

The plan includes all levels of government and its institutions adopting the IHRA definition of antisemitism, which provides eleven examples of the prejudice, seven of which involve Israel. The definition can be weaponised so that criticism of Israel is considered an assault on Jewish identity, and therefore, prejudicial. And the Federal Court has recognised that this is a false conflation.

Rowland outlined in response to a series of questions from journalist David Speers on the ABC’s 7.30 on 20 January 2026, the day the hate group laws were passed, that if someone linked to a group “accuses Israel of genocide or apartheid” and “Jewish Australians do feel intimidated” and the court finds a reasonable person would have this same reaction, then a group can be banned.

So, after receiving the letter in which Alsuleiman explained that Rowland’s assertions on 7.30 regarding groups being declared on basis of criticism of Israel over the Gaza genocide have caused alarm amongst Muslim Australians and pro-Palestinians, and that staff from both Rowland and Burke’s offices had confirmed otherwise on 15 January, the AG has reclarified how the law works.

The broad net of the hate group laws

A representative from the ANIC has stated that the response from the AG and the home affairs minister has not eased the “heightened anxiety” in the community around what can and can’t be said in respect of such matters, and many fear the laws could be weaponised. The spokesperson noted that the language in the laws is exceedingly broad and lacks precise boundaries.

Sitting under new part 5.3B of the Criminal Code Act 1995 (Cth), the hate groups regime is designed to protect the community from the broad net of “social, economic, psychological and physical harm” by banning groups that engage in or promote hate crimes.

The head of ASIO assesses a hate group, then tells the AFP minister, and if they agree and get AG approval, then the governor general lists the group as banned. ASIO can move to have a group listed based on assessing it has “advocated or engaged in politically motivated violence or engaged in the promotion of communal violence” or that there is a risk that they might do this in the future.

Hate crimes include the federal hate crime offences passed in early 2025 that capture behaviour like advocating or threatening violence against a targeted person or group or their property. A targeted group is distinguished by “race, religion, sex, sexual orientation, gender identity, intersex status, disability, nationality, national or ethnic origin or political opinion”.

Further conduct captured as hate crime under this regime involves publicly inciting hatred against a person or a group due to “race or national or ethnic origin” that would constitute a preexisting offence under federal, state or territory law or would cause a member of a targeted group “to be intimidated, to fear harassment or violence, or to fear for their safety”.

The hate crime activity that can lead to a listing can have occurred prior to the laws being passed last month. No one making up this group of three people or more, has to have been convicted of a hate crime, and nor does the minister need to provide procedural fairness, which means no notification to the individuals involved that there is a case and once the decision is made, there’s no appealing it.

Following the government tapping the members of a group on the shoulder to explain their group is now prohibited, a range of criminal offences then become available to prosecute them under if they continue.

Hate group members can be taken to court after being charged over directing a hate group or being a member of or recruiting for a hate group or training with one, as well as providing support for or funding to a hate group. And all these criminal offences carry steep prison time.

Guaranteed only for so long

In fleshing out the scenario provided by David Speers, the example involves an organisation of protesters vehemently campaigning against Israel over its ongoing commission of genocide in Gaza and the apartheid regime that underpins this, and if this causes some Jewish Australians to feel intimidated and they complain about it, then it’s ultimately up to ASIO to make the assessment.

And at that point it would really be up to the ASIO boss to consider whether particular conduct, which involved criticism of Israel, is, in fact, also criticism of the religion of Judaism or of Jewish identity itself. So, even though the Federal Court of Australia has recognised that these two disparate things are not the same, it would ultimately be up to the ASIO boss to make the initial assessment.

Right now, Rowland and Burke have given their word not to progress a suggestion coming from the ASIO boss to list a group over its criticism of Israel and the nation’s policies as a hate group so as to criminalise it, which should provide some brief respite to those fearful of that development, because there is nothing in the laws to prevent such an outcome if the top spy seeks to progress it.

Yet, if the current attorney general and home affairs minister were replaced there would be nothing to prevent a hate group listing based on the conflation of anti-Zionism with antisemitism, and furthermore, if a party with a more authoritarian outlook took out the next election, there is nothing to stop these laws being turned on pro-Palestinians, or any political opposition for that matter.