Stamping Out Hate with Draconian Laws Is a Rush to the Bottom in Terms of Rights

When it came time for the Australian home affairs minister to address the press in relation to the omnibus combating antisemitism bill, Tony Burke pointed to a number of key aspects of the legislation. These involve the listing of hate groups, and the ability to refuse to grant or cancel visas in respect of individuals found to be harbouring “racial bigotry”.

The broad range of measures contained in the Combatting Antisemitism, Hate and Extremism Bill 2026 have been drafted in a major rush to respond to the Bondi Beach massacre over the parliamentary holiday period to create laws that would hopefully serve to prevent targeted hate from being propagated in the public sphere that can led to extreme acts of violence.

Since the release of the exposure draft of the bill on 13 January, it’s caused a stir, due its length and the broad range of laws it seeks to amend, along with further concerns about the reach of the new national security and criminal law measures, with the likely implications of so many laws being drafted in such a hurry is that they capture of a range of behaviour that they weren’t designed to.

The stamping out of hate is a tall order. Issues stemming from laws attempting to prevent the dissemination of hate necessarily involve encroachments on the right to free speech and the implied right to political communication. And with laws that have been drafted on the fly, the risk is that they operate so broadly they capture legitimate speech or the authorities use them to silence dissent.

The other key issue is that this onslaught of draconian lawmaking is being rolled out in the wake of an earlier round of ‘enacting the worst hate crime laws ever’ in February 2025, and taken together with the over 100 pieces of national security/counterterrorism legislation enacted since the 2001 9/11 New York terror attacks, if an authoritarian government does take power, it will have a field day.

Listing hate groups

“There have been organisations which have played a game for a long time in keeping themselves just below the legal threshold,” Burke said on 12 January. “They were called out last year by Mike Burgess, the director general of ASIO, for the real harm they do to our national security. The two groups he called out specifically were the Nazis, the National Socialist Network, and Hizb ut-Tahrir.”

The Combating Antisemitism Bill inserts part 5.3B into the Criminal Code Act 1995 (NSW), which contains laws involving the listing of hate groups. This will operate in a similar manner to the 2002 established listing of proscribed terrorist organisations, which automatically triggers steep terrorism offences for any involvement in an organisation, with harsh penalties to keep offenders in prison.

The omnibus bill would establish a framework to list hate groups, triggering a range of newly enacted hate offences that apply to those involved in a hate group. The Australian governor general can list a hate group on the advice of the AFP minister, as well as supporting documentation produced by the Australian attorney general and the director general of security.

In order to list a hate group, the AFP minister must first be satisfied that it “has engaged in, prepared or planned to engage in, or assisted the engagement in, conduct constituting a hate crime”. These laws operate retrospectively, so that past hate crimes could be the reason to list a hate group.

No hate crime conviction is required to list a hate group and no procedural fairness is needed, which would indicate that the government might be able to list a popular Palestine solidarity group, for instance, and ban it if the authorities determine that their rhetoric is hateful towards another group.

Preexisting hate crimes contained in the Criminal Code were rolled out in February last year, and they’re triggered if an individual or a group has been targeted due to their “race, religion, sex, sexual orientation, gender identity, intersex status, disability, nationality, national or ethnic origin or political opinion”.

Once a group has been listed as a hate group, being a member of the group would become a crime, as would directing the group, recruiting for it, and providing training, funding or support for the group.

The key neo-Nazi group, the National Socialist Network, which has been causing a nationwide stir over recent years has resolved to disband in the wake of the release of these laws and prior to their passing, especially due to their retrospectivity. Yet, after the NSN has been busily establishing itself in order to become a legitimate political party, it is hard to conceive they won’t continue on in secret.

Deporting those who hate

Amongst a range of other reforms, the omnibus bill amends the Migration Act 1958 (Cth) to permit the immigration minister to refuse to grant a visa or determine to cancel one based on the fact that the individual has failed the character test contained in section 501 of the Act based on grounds of hate and extremism.

The bill inserts three new subsections into section 5C of the Migration Act, which contains a list of characteristics that can be of concern and lead to visa cancellation. The subsections list a noncitizen having been a member of a terror organisation or a hate group, as well as if they’ve been involved in past hate crimes, as reasons to revoke a visa. And conduct captured can include public statements.

Three new subsections are also inserted into section 500A of the Act, which would allow the minister to cancel temporary safe haven visas based on engagement with a terrorist organisation or a hate group, as well as any past commission of a hate crime.

The bill further amends section 501 of the Migration Act, which contains the character test that can lead to visa non-approval or revocation, so that being a member of a terror organisation, a hate group or having engaged in hate crimes in the past can be a reason to fail the test.

An example of how these laws could be dubiously used in the present, would be if the authorities determined a Palestine solidarity group had been spreading hate, and therefore, it should be listed as a prohibited hate group, which could then lead to noncitizens who’ve been involved with the group being deported from the country.

Cracking down to promote harmony

A coalition of rights groups – the NSW Council for Civil Liberties, Liberty Victoria and the Queensland Council for Civil Liberties – released a statement on Monday, outlining that the Combating Antisemitism Bill serves to combine “practical reforms such as the creation of a national gun buyback scheme with radical and unprecedented reforms to our democratic rights and liberties”.

The 13 January statement further underscores that the listing of prohibited hate groups provides “extraordinary powers” to the minister, allowing them to make broad classifications about groups, without the need of any procedural fairness, which is a legal principle requiring fairness and the right of appeal in administrative matters.

The coalition further suggests that many of the measures in the bill “go far beyond what’s required to address the horrific events at Bondi”. The example given is the expansion of the prohibited symbols offences, under sections 80.2H and 80.2HA of the Code, as the onus of proof is being shifted to the defendant, for crimes that carry mandatory minimum sentences of 12 months.

The liberties experts also point to an issue with the Migration Act amendments, as the minister is being given the power to determine to cancel or not issue visas based on whether individuals “might” sow discord in the community, whereas right now, there has to be a determination that they “would” engage in such conduct to warrant deportation.

“The federal government is not undertaking this inquiry in good faith. Two days for submissions on legislation that potentially cuts across our democratic rights is absurd. We do not get to social cohesion with a government playing fast and loose with the community’s freedom of speech, association and religion,” NSWCCL president Timothy Roberts said.

“If the Albanese government was serious about the purported aim of this bill, then surely, they would be trying to take the community with them. At the current rate, they are not even taking the time to listen to them,” the respected lawyer said in conclusion.

“The federal government is driving division in seeking to extend criminal laws in such an ill-considered way. Criminal laws must be able to be clearly understood by the community to prevent miscarriages of justice.”