The Erosion of Liberty: A Forensic and Constitutional Critique of the Combatting Antisemitism, Hate and Extremism Bill 2026

Executive Summary: The Architecture of the Security State

The introduction of the Combatting Antisemitism, Hate and Extremism Bill 2026 into the Australian Parliament marks a precipitous descent into legislative authoritarianism. Masquerading as a necessary shield against the scourge of hatred, this omnibus Bill is, in reality, a sword struck at the heart of Australia’s liberal democratic tradition. It represents a fundamental realignment of the relationship between the citizen and the state, substituting the rule of law for the rule of executive suspicion, and replacing the presumption of innocence with a presumption of guilt for those who dare to traverse the increasingly narrow corridors of permissible expression and association.

This report, authored from the perspective of a constitutional and human rights legal expert, provides an exhaustive, hard-hitting analysis of the Bill. It exposes the constitutional fragilities, the draconian overreach, and the insidious mechanisms by which this legislation seeks to criminalise ideology, weaponise migration law, and automate injustice. The analysis draws upon a comprehensive review of the Bill’s text 1, established High Court precedents including Williams v Commonwealth 2 and Lange v Australian Broadcasting Corporation 4, and international human rights frameworks under the International Covenant on Civil and Political Rights (ICCPR).5

The Bill is not merely a collection of amendments; it is a coherent architecture of oppression. It creates a new class of "thought crimes" by criminalising the dissemination of "ideas of superiority" 1, a concept so vague as to capture religious doctrine, political philosophy, and historical debate. It resurrects the discredited doctrine of "guilt by association" in migration law, enacting a statutory definition of "association" that captures a single meeting or communication 1, directly overriding the judicial safeguards established in the wake of the Dr Mohamed Haneef scandal.6 It assaults the free exercise of religion by imposing aggravated criminal penalties on "religious officials" 1, effectively creating a state-sanctioned hierarchy of speech where the pulpit becomes a site of heightened criminal liability. Furthermore, it entrenches the "Secret State" by expanding the use of "criminal intelligence assessments"—shielded from judicial scrutiny—to deny firearms licences and employment, while simultaneously authorising the automation of these life-altering decisions by computer algorithms 1, ignoring the catastrophic lessons of the Robodebt Royal Commission.7

This report identifies the specific groups at risk—religious leaders, journalists, academics, migrants, and gun owners—who may believe this law targets only "extremists" but will soon find themselves ensnared in its expansive net. The constitutional validity of the National Gun Buyback, reliant on the nebulous "nationhood power," is challenged as a perilous expansion of Commonwealth executive authority that defies the federal balance. The report concludes that the price of this legislation is the systematic dismantling of the checks and balances that protect the Australian people from tyranny.

Part 1: The Criminalisation of Discourse and the Implied Freedom of Political Communication

The Bill’s most audacious assault is on the freedom of speech. While Australia lacks a constitutional Bill of Rights, the High Court has long recognised an implied freedom of political communication as an indispensable incident of the system of representative and responsible government prescribed by the Constitution.4 This freedom operates as a restriction on legislative power. The Combatting Antisemitism, Hate and Extremism Bill 2026 tests the limits of this freedom to the breaking point, introducing offences that criminalise the content of ideas rather than merely the incitement of violence.

1.1 The Thought Crime of "Superiority": Section 80.2BF

The Bill introduces Section 80.2BF into the Criminal Code Act 1995, creating the offence of "Publicly promoting or inciting racial hatred etc.".1 Subsections (1)(b)(ii) criminalise conduct intended to "disseminate ideas of superiority over or hatred of another person... because of the race, colour or national or ethnic origin of the target or target group."

1.1.1 The "Ideas of Superiority" Trap

The criminalisation of "ideas of superiority" is a perilous importation from Article 4(a) of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD).9 Crucially, Australia has maintained a reservation to Article 4(a) for decades, precisely because criminalising ideas was seen as incompatible with the traditions of free speech and open debate in a liberal democracy.10 This Bill effectively abandons that reservation without public debate, enacting a provision that threatens to silence vast swathes of political and religious discourse.

The concept of "superiority" is inherently subjective and deeply embedded in political and cultural identity.

• Political Discourse: Is the assertion that "Western liberal democracy is superior to Chinese authoritarianism" a dissemination of ideas of superiority based on national origin? Under the plain text of the Bill, it arguably is.
• Historical Debate: An academic arguing that the industrial or cultural practices of the British Empire were "superior" to those of the societies they colonised could face criminal prosecution.
• Religious Doctrine: Many religions are founded on the theological premise of exclusivity and superiority—that their path is the only path to salvation. While the Bill includes a defence for "religious teaching" (discussed below), the initial criminalisation of the idea of superiority casts a chilling shadow over theological debate.

1.1.2 Constitutional Invalidity: Failing the Lange Test

Any law that burdens political communication must satisfy the test established in Lange v Australian Broadcasting Corporation (1997) and refined in McCloy v New South Wales (2015).11 The test asks:

1. Does the law effectively burden freedom of communication about government or political matters?
2. Is the purpose of the law legitimate and compatible with the representative system?
3. Is the law reasonably appropriate and adapted to advance that legitimate purpose?

Section 80.2BF clearly burdens political communication. Discussions about race, nationality, and ethnicity are inherently political. While preventing violence is a legitimate end, criminalising the dissemination of abstract "ideas" is a disproportionate means to achieve it. The High Court in Coleman v Power (2004) held that insults and offensive speech are part of the robust interplay of political debate.8 By criminalising "ideas of superiority," the Bill insulates protected groups from offence at the cost of suppressing legitimate debate about culture, values, and national identity. It is highly probable that the High Court would find this provision invalid for exceeding the bounds of what is "reasonably appropriate" in a free society.

1.2 The Weaponisation of the "Reasonable Person" Test

Subsection 80.2BF(1)(c) creates a further trap. The offence requires that the conduct "would, in all the circumstances, cause a reasonable person who is the target... to be intimidated, to fear harassment or violence, or to fear for their safety".1 Crucially, subsection (2) applies strict liability to this element.

This is a radical departure from the principles of criminal responsibility. Strict liability means the prosecution does not need to prove that the accused intended to intimidate or cause fear, nor even that they were reckless as to that outcome. The accused need only intend to disseminate the idea. If a "reasonable person" from the target group feels intimidated, the offence is complete.

This objective standard acts as a "heckler's veto" codified in law. In a hypersensitive political climate, a "reasonable person" might feel "intimidated" by vigorous debate about immigration levels, indigenous recognition, or geopolitical conflicts. A speaker debating the merits of reduced immigration (based on national origin) could be imprisoned for five years not because they intended to threaten anyone, but because a court determines that a "reasonable migrant" would feel fearful. This creates an intolerable uncertainty for speakers and is likely constitutionally invalid for its chilling effect on political communication.11

1.3 The Evidential Burden: Reversing the Onus on Hate Symbols

Part 7 of Schedule 1 amends the Criminal Code offences regarding prohibited symbols (s 80.2H and s 80.2HA).1 The Bill repeals the requirement for the prosecution to prove that the display was not for a public interest purpose. Instead, it inserts a new subsection (9), placing an evidential burden on the defendant to prove their conduct was for a religious, academic, educational, artistic, or journalistic purpose and "not contrary to the public interest".1

1.3.1 Destroying the Presumption of Innocence

This reversal of the onus of proof strikes at the heart of the presumption of innocence, protected by Article 14(2) of the ICCPR.12 While framed as an "evidential burden," requiring the defendant to adduce evidence, in practice, it shifts the forensic risk to the accused. In Momcilovic v The Queen (2011), the High Court scrutinized reverse onus provisions for their compatibility with human rights.13 The Court found that placing a legal burden on the accused to disprove an element of the offence was a serious encroachment on liberty.

Under this Bill, an artist displaying a Swastika in a satirical painting, or a journalist documenting a neo-Nazi rally, is presumed criminal unless they can justify their conduct. They must prove to a court that their purpose was "not contrary to the public interest." The "public interest" is a fluid, political concept. Is it in the public interest to display hate symbols to critique them? A conservative magistrate might argue that any display of such symbols is contrary to the public interest because of the offence it causes. This uncertainty will force self-censorship. Galleries will refuse to show controversial art; editors will blur images in news reports; academics will sanitise their lectures—all to avoid the risk of prosecution where the burden lies on them to prove their innocence.

1.4 From "Advocating" to "Praising": The Slippery Slope of Terrorist Offences

The Bill significantly expands the definition of "advocating" terrorism and hate crimes. Schedule 1, Part 4 defines "advocates" to include praising the engagement in conduct constituting a hate crime where there is an "unacceptable risk" that such praise might lead a person to engage in such conduct.1 This mirrors the expansion of the "advocating terrorism" offence in s 80.2C of the Criminal Code.

1.4.1 The Spanish Warning: The Case of Valtonyc

The danger of criminalising "praise" is illustrated by international experience. In Spain, rapper Valtonyc was sentenced to three and a half years in prison for lyrics that "praised" terrorist groups (ETA and GRAPO).15 The Spanish Supreme Court held that the lyrics created an abstract risk of violence. This approach has been widely condemned by human rights organisations as a misuse of counter-terrorism laws to silence political dissent.16

The Australian Bill imports this draconian standard. "Praising" is a speech act distinct from "inciting." One can praise the courage of a suicide bomber without urging others to blow themselves up. One can praise the "resistance" of a militant group without instructing others to take up arms. By criminalising praise based on a nebulous "risk" assessment, the Bill criminalises empathy, historical interpretation, and political solidarity.

1.4.2 The "Unacceptable Risk" Standard

The threshold of "unacceptable risk" is dangerously low and devoid of specific intent. Unlike the US "clear and present danger" test (Brandenburg v Ohio), which requires incitement to imminent lawless action, the Australian proposal criminalises speech that creates a remote or indirect risk. This disproportionately targets minority communities. A Palestinian activist praising the "resistance" in Gaza, or a Kurdish activist praising the PKK's fight against ISIS, could be imprisoned if a court finds that such praise might inspire a "lone wolf" in Australia. This effectively severs the link between the speaker's intent and the criminal act, creating a form of "speech liability" that is alien to the common law tradition.

Part 2: The Constitutional Invalidity of Aggravated Offences for Religious Officials

The Bill introduces a startling new category of offender: the "religious official." Section 80.2DA, "Aggravated offence for religious officials or other spiritual leaders etc.," imposes significantly harsher penalties (12 years imprisonment) for advocating violence if the offender is a religious leader acting in that capacity.1

2.1 Section 116 and the "Free Exercise" of Religion

Section 116 of the Australian Constitution provides that "The Commonwealth shall not make any law... for prohibiting the free exercise of any religion".17 While the High Court has historically interpreted this provision narrowly (Krygger v Williams, Adelaide Company of Jehovah's Witnesses), holding that it does not protect criminal acts merely because they are religiously motivated, Section 80.2DA represents a novel and direct attack on the function of religious leadership.

The provision does not merely punish violence; it punishes the status of the speaker. It singles out religious speech (sermons, pastoral care) for aggravated punishment compared to secular speech. A political leader urging violence receives a maximum of 7 years; a religious leader urging the exact same conduct receives 12 years. This disparity arguably constitutes a "prohibition" on the free exercise of religion by imposing a discriminatory burden on the central act of religious practice: preaching and instruction.

In Attorney-General (Vic) ex rel Black v Commonwealth (the DOGS case), the High Court held that s 116 protects against laws that have the purpose of prohibiting free exercise.18 It is open to argument that s 80.2DA has the prohibited purpose of chilling religious expression by threatening clergy with draconian sentences. It functions as a "religious test" in reverse—a religious penalty—that may well be unconstitutional.

2.2 The Ambiguity of "Religious Official" and "Spiritual Leader"

The Bill fails to define "religious official" or "spiritual leader" with sufficient precision, relying on broad terms that capture "lay members" providing "religious instruction or pastoral care".1 This ambiguity is legally treacherous.

• Lay Preachers and Youth Leaders: In many Protestant and Evangelical denominations, lay people regularly preach and lead bible studies. Under this Bill, a 22-year-old youth leader who enthusiastically interprets a violent passage of the Old Testament or the Quran in a way deemed to "advocate force" faces 12 years in prison.
• Indigenous Elders: The term "spiritual leader" is broad enough to encompass Aboriginal Elders providing cultural and spiritual guidance. An Elder advocating for "resistance" against land dispossession could be caught by this aggravated offence, criminalising Indigenous spiritual authority.
• Informal Networks: In Islam, the role of "Imam" can be informal. Any person leading prayer or providing advice could be deemed a "spiritual leader."

This ambiguity violates the principle of legality, which requires criminal offences to be clearly defined so that citizens know the boundaries of lawful conduct. It creates a "grey zone" where any person discussing religion and politics risks aggravated criminal liability.

Part 3: The Migration Act and the Doctrine of Guilt by Association

Schedule 2 of the Bill introduces radical amendments to the Migration Act 1958, redefining the "character test" in section 501 and expanding the grounds for visa cancellation.1 These amendments represent a legislative override of judicial safeguards and a resurrection of the totalitarian doctrine of "guilt by association."

3.1 The "Single Meeting" Trap: Codifying Injustice

The Bill defines "association" with brutal simplicity: "a person has an association... with an organisation if the person meets or communicates with the organisation".1 The Note to the section is explicit: "The association may consist of a single meeting or communication".1

This statutory definition is a direct response to, and rejection of, the Federal Court’s decision in Haneef v Minister for Immigration (2007).6 In that case, Justice Spender held that "association" in the context of the character test required more than innocent social contact; it required some sympathy with, or support for, the criminal objectives of the group. The court recognized that a broad definition would capture innocent relationships (e.g., a doctor treating a terrorist, a lawyer representing them, a relative speaking to them).

The Bill obliterates this judicial nuance. By explicitly including a "single meeting or communication," the Parliament is enacting a strict liability standard for association.

• The University Student: A student who attends a campus meeting organised by a group that is later proscribed as a "hate group" has "met" with them. They fail the character test.
• The Journalist: A journalist who interviews the spokesperson of a radical group has "communicated" with them. They fail the character test.
• The Family Member: A person who speaks on the phone to a cousin who has joined an extremist group has "communicated" with a member. They fail the character test.

This is guilt by association in its purest form. It strips the visa holder of the ability to argue that their association was innocent, professional, or incidental. It mandates that the Minister "reasonably suspects" the person does not pass the character test, triggering the potential for mandatory cancellation and indefinite detention.

3.2 "Spreading Hatred": The Subjective Abyss of Section 5C(1A)

The new "Spreading hatred and extremism" limb (s 5C(1A)) allows for visa refusal or cancellation if the Minister "reasonably suspects" a non-citizen has made statements involving the "dissemination of ideas based on superiority or hatred".1

This provision creates a subjective abyss. It does not require a criminal conviction. It does not require the speech to be unlawful. It relies entirely on the Minister's "suspicion" that the ideas expressed are based on "superiority." This confers unfettered discretion on the Executive to police the political and social views of non-citizens. A visa holder who expresses strong views on religious truth, cultural values, or historical grievances can be deported if the Minister finds their ideas "hateful."

Retrospective Application: Schedule 2, Item 12 applies these amendments to conduct occurring before the commencement of the Act.1 This means a permanent resident who attended a meeting five years ago, or posted a comment online ten years ago, is now liable for deportation. This violates the fundamental rule of law principle against retrospective penalties (nullum crimen sine lege) and plunges millions of visa holders into a state of permanent insecurity.

3.3 The Exclusion of Procedural Fairness

The Bill reinforces the exclusion of procedural fairness in migration decisions. The High Court in Plaintiff S157/2002 v Commonwealth affirmed that the Parliament can exclude natural justice if it does so with "irresistible clearness." The specific drafting of these amendments, combined with the "national interest" override in s 501(3), is designed to withstand judicial scrutiny.20

Visa holders accused of "spreading hatred" or "associating" with hate groups will likely be denied:

• The right to know the case against them: Adverse information may be protected as "criminal intelligence" (discussed below).
• The right to be heard: Decisions can be made summarily without inviting a submission.
• The right to effective review: Judicial review is limited to jurisdictional error, which is notoriously difficult to establish when the statute grants the Minister such broad subjective discretion ("reasonably suspects").

Part 4: The National Gun Buyback and the Limits of Commonwealth Power

Schedule 4, Part 1 establishes a "National gun buyback" scheme.1 Unlike the 1996 buyback, which relied on a cooperative federalism model and the customs power, this Bill attempts a direct Commonwealth expenditure scheme. This exposes the legislation to significant constitutional peril.

4.1 The Williams Problem: The Spending Power Mirage

The Bill explicitly authorises payments for the buyback under the "nationhood power" (Item 5(5)).1 This is a high-stakes constitutional gamble. In the landmark cases of Williams v Commonwealth (No 1) (2012) and Williams v Commonwealth (No 2) (2014), the High Court categorically rejected the notion that the Commonwealth Executive has an unlimited power to spend public money.2 The Court held that Commonwealth expenditure must be supported by a legislative head of power.

The "nationhood power" (implied from s 61 and s 51(xxxix)) is limited to enterprises "peculiarly adapted to the government of a nation and which cannot otherwise be carried on for the benefit of the nation" (e.g., the CSIRO, the Bicentenary).21 The High Court has been reluctant to expand this power to cover areas of traditional State responsibility, such as education or policing.

A gun buyback is inherently a matter of internal policing and property regulation—areas traditionally reserved to the States. By attempting to bypass the States and fund the buyback directly under the "nationhood power," the Commonwealth invites a constitutional challenge that it is likely to lose. If the High Court finds, as it did in Williams, that the expenditure is invalid, the entire financial substrate of the buyback collapses.

4.2 The Defence Power: Stretching Thomas v Mowbray

The Bill also invokes the defence power (s 51(vi)), asserting the buyback relates to the "defence of the Commonwealth".1 This relies on the precedent of Thomas v Mowbray (2007), where the High Court accepted that the defence power could extend to internal security threats like terrorism.23

However, Thomas v Mowbray dealt with control orders against trained terrorists. Extending the defence power to a general buyback of firearms from law-abiding citizens is a significant leap. It requires the High Court to accept that the presence of firearms in the community constitutes a "threat to the Commonwealth" analogous to terrorism or war. This "securitisation" of domestic policy risks eroding the federal division of powers, effectively allowing the Commonwealth to legislate on any crime issue by labelling it a "defence" threat.

4.3 The Corporations Power Limitation

The Bill also cites the corporations power (s 51(xx)).1 While this supports the regulation of gun dealers (who are corporations), it offers no support for a buyback targeting individual owners. This patchwork of constitutional heads of power highlights the fragility of the scheme. The Commonwealth is reaching beyond its grasp, creating a legislative house of cards liable to be toppled by a single litigant.

Part 5: The Secret State: Automated Justice and Intelligence Assessments

The most dystopian elements of the Bill are found in Schedule 4, Part 2, which amends the Australian Crime Commission Act 2002 to expand the use of "criminal intelligence assessments" and authorise their automation.1

5.1 The Black Box of Administrative Law

The Bill expands the ACIC's power to issue "criminal intelligence assessments" for firearms background checks and other administrative decisions.1 These assessments are "adverse" if they contain a recommendation that prescribed administrative action (e.g., cancelling a licence) be taken.

Crucially, the review rights for these assessments are restricted to the Intelligence and Security jurisdictional area of the Administrative Review Tribunal (ART).24 In this jurisdiction, the normal rules of procedural fairness do not apply.

• Secret Evidence: The applicant (the citizen) is not entitled to see the "criminal intelligence" that forms the basis of the adverse assessment.25
• Closed Hearings: Evidence is heard in closed sessions from which the applicant and their lawyer are excluded.
• No Right to Know: The applicant may lose their livelihood or licence without ever knowing the specific allegations against them.

This creates a parallel legal system where "law enforcement interests" trump the fundamental common law right to know the case against oneself (Kioa v West).26 It introduces a Kafkaesque reality where a citizen can be branded a security risk based on secret hearsay, police informants, or flawed intelligence, with no effective way to challenge the error.

5.2 Automation of Decision Making: Robodebt 2.0?

Perhaps the most alarming provision is the new Section 54G of the Australian Crime Commission Act, which explicitly authorises the use of computer programs to take "specified criminal intelligence assessment action".1 The Bill states that action taken by the computer is "treated, for all purposes, as specified criminal intelligence assessment action taken by the ACC".1

This provision is a legislative attempt to bypass the administrative law requirement for a "mental process" in decision-making. In Pintarich v Deputy Commissioner of Taxation (2018), the Federal Court held that a decision requires a mental engagement by a human decision-maker.27 The Bill legislatively overrides this, allowing algorithms to make life-altering decisions about citizens' character and rights.

This ignores the catastrophic lessons of the Robodebt Royal Commission, which highlighted the human cost of automated decisions devoid of oversight.7 Automating "criminal intelligence assessments" is infinitely more dangerous than automating debt notices. Intelligence is not hard data; it is qualitative, often unreliable, and requires nuanced human judgment. An algorithm cannot distinguish between malicious gossip and credible intelligence. It cannot weigh the context of an "association." By automating this process, the Bill guarantees systemic injustice, scaling up errors to an industrial level and shielding them behind the veil of "national security."

Conclusion: The Totalitarian Creep

The Combatting Antisemitism, Hate and Extremism Bill 2026 is a Trojan horse. Under the guise of public safety, it smuggles in a sweeping expansion of executive power that erodes the pillars of Australian democracy. It asks the public to trade the presumption of innocence for "public interest" presumptions of guilt; to trade the right to political speech for state-sanctioned orthodoxy; and to trade the right to a fair trial for secret, automated intelligence assessments.

This Bill does not just target "extremists." It targets:

• The Pastor preaching traditional morality (s 80.2DA).
• The Academic critiquing foreign cultures (s 80.2BF).
• The Migrant attending a community meeting (s 5C(1A)).
• The Journalist reporting on radicalism (s 80.2H).
• The Gun Owner subjected to algorithmic judgment (s 54G).

It represents a dangerous drift towards a preventive security state, where rights are privileges granted by the Executive, revocable on suspicion, and adjudicated in secret.

Recommendations:

1. Reject the Bill in its current form as constitutionally unsound and incompatible with human rights.
2. Delete Section 80.2BF (Racial Vilification) to protect the implied freedom of political communication.
3. Remove Section 80.2DA (Aggravated Offences for Religious Officials) to preserve the free exercise of religion under s 116.
4. Amend the "Association" Definition in the Migration Act to require a nexus to criminal conduct, restoring the Haneef standard.
5. Strike out Section 54G (Automation) to prevent the automation of criminal intelligence assessments.
6. Refer the Bill to the Parliamentary Joint Committee on Human Rights for a full inquiry into its compliance with the ICCPR.

Works cited

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