Stopping protests. The chilling consequences of hate crime laws
What impact will new hate speech laws have on ordinary Australians’ ability to protest? Professor of Constitutional Law Anne Twomey explains.
Albanian government Combating Antisemitism, Hate and Extremism Act 2026 This week it was passed by both houses of parliament with the support of the Liberal Party. this is it He broke the coalition agreement That’s the least we have to worry about.
One previous version It included the crime of encouraging or inciting racial hatred. The government withdrew this part of the law after opposition from both the Coalition and the Greens.
However, promoting racial hatred remains linked to other key provisions that allow for the banning of “prohibited hate groups”.
How can a group become a banned hate group?
According to the new law, a group can be banned if the governor general makes a prohibitory regulation. The governor-general acts on the advice of the minister of the Australian Federal Police. There are a number of conditions that must be met for a group to be banned.
First, the minister must be satisfied on reasonable grounds that the group has engaged in conduct that constitutes a “hate crime” or is associated with a hate crime by preparing, planning, assisting or advocating such conduct. This is the initial trigger for a group to be banned.
Secondly, the Minister must be satisfied that banning the group is reasonably necessary to protect the Australian community from social, economic, psychological and physical harm.
The bill was amended to dilute this requirement in two ways. This now also applies to protecting “part of the Australian community” from such harm. In addition, this social, economic, psychological and physical harm may result from the continued presence in Australia of the group involved in or associated with conduct that constitutes hate crime. Therefore, it will not be difficult for the minister to fulfill this second condition.
The third condition is that the minister must have received advice from the director general of security (who is the head of ASIO) to ban the group. The director general must ensure that the group is engaging in activities that may increase the risk of politically motivated violence or civil violence and that it is advocating or engaging in such violence or is at risk of doing so in the future.
The minister also needs to get approval from the attorney general to ban the group and arrange a briefing for the opposition leader. Any regulation that prohibits a group may be disallowed (i.e. overturned) by both Houses of Parliament.
Therefore, it is not easy to ban a group. But as we have seen in other countries, such protections can be circumvented by appointing politically motivated friends to positions and arguing that any dissent or dissent increases the risk of politically motivated violence and harm to society.
What is a ‘hate crime’?
The key issue is whether an action is a “hate crime”; because this is necessary to satisfy the initial trigger. Hate crime involves acts of violence against persons or serious damage to property based on their race, colour, national or ethnic origin. This type involves threatening or advocating violence or harm. Displaying Nazi or terrorist organization symbols is also considered a hate crime.
The original bill made promoting or inciting racial hatred a hate crime. This has increased concerns due to uncertainty about the scope of the crime. While the government has withdrawn this as a standalone crime
reintroduced incitement to racial hatred as a “hate crime” in order to ban groups.
It did so by saying that hate crime involves conduct that publicly incites racial hatred in a way that constitutes an offense against a Commonwealth law (for example, it could also breach a law on the sending of offensive communications by post).
It also includes conduct that would constitute a specific state or territory offence. The conduct must also cause a reasonable person from the targeted racial group to be intimidated, fear harassment or violence, or fear for their safety.
This reliance on state crimes makes the law very complex. This is because in Queensland, South Australia and the ACT, promoting racial hatred is linked to the threat of physical harm in listed crimes, while in New South Wales, Victoria and Western Australia, no threat of harm is required. No relevant legislation is listed for Tasmania or the Northern Territory. This means
Whether a group can be banned on this basis may depend on where the behavior occurs.
Making things even more complicated, the law actually says that no crime need be committed and no one need be convicted. Additionally, a behavior may be a “hate crime” even if it occurred in the past when it was not a crime. It is sufficient for the Minister to be convinced on reasonable grounds that the group has committed or is associated with behavior that constitutes a “hate crime”.
This leaves it up to the minister to decide what was done and by whom, whether the requisite intent was present, whether their conduct was attributable to the group, whether any defenses were valid and whether the conditions of law in the relevant jurisdiction were met.
We normally leave such evaluations to independent courts and judges. For example, if the minister has a political interest in banning a particular group, should a minister be the one to decide whether the defense of acting in good faith should apply?
Is criticizing a country’s actions a hate crime?
Is criticizing another country’s actions or policies a “hate crime” according to the law? This type of criticism, which is normally a political communication, ignore as inciting hatred against a group because of race, colour, ethnic or national origin.
But lately, on the contrary arguments has been made.
Attorney General Michelle Rowland was asked the following question: ABC’s 7.30 program Whether a group that accuses Israel of genocide or apartheid can be banned and whether Australian Jews are driven to fear as a result. A number of other factors also need to be met, he said. This includes the recommendation of the general manager of security. He also stated that this would depend on the evidence collected.
The attorney general was asked whether protesters could be banned if they said “Israel is committing genocide” or condemned Israel and said it shouldn’t have happened, leading to Australian Jews being harassed or intimidated. “If these criteria are met, that is the case,” he replied. This seems to suggest that while the initial trigger for committing a hate crime by inciting racial hatred would be met with such public criticism, other parts of the test still need to be met.
Concerns about such an interpretation and its impact on Australians’ freedom to criticize the behavior of foreign governments led to amendments to the bill being moved to the Senate. Senator Lidia Thorpe dismissed A lot changes The bill includes the addition of the following statement:
According to the decision of the Federal Court Wertheim v Haddad [2025] FCA720Criticism of the practices, policies, and actions of the state of Israel, the Israel Defense Forces, or Zionism is not inherently a criticism of the Jewish people and is protected by political speech, not hate speech.
This amendment was rejected by 43 votes to 12, with major parties opposing it.
This leads to uncertainty about what behavior is intended to be captured.
Freedom of political communication could potentially be frozen for those who wish to protest the behavior of a country’s government.
If the Minister is satisfied that such behavior constitutes a hate crime and a regulation is made that a group is a proscribed hate group, that decision may be challenged on administrative law grounds. There may also be a constitutional challenge to relevant provisions in the law.
Until then, one can only speculate about the potential impact of this new law.
This article is republished from: Speech It is under Creative Commons license. Read original article.
Fighting for the right to hate | West Report
Anne Twomey practiced as a solicitor and was permitted to practice in New South Wales, Victoria, the ACT and the Supreme Court. He has worked as a Senior Research Fellow at the High Court of Australia, as a researcher in the Law and Government Group at the Commonwealth Parliamentary Research Service, as Secretary of the Senate Law and Constitution Committee in the Commonwealth Senate, and as Legal Branch Policy Manager at the NSW Cabinet Office. He served as a consultant to various government institutions.
