Australia’s New “Hate & Extremism” Law Isn’t Coming For Them… It’s Coming For You

Parliament has just handed the Executive a new weapon: a “middle-tier” proscription regime that can ban organisations by regulation, criminalise ordinary proximity to those organisations, and turn immigration decisions into a “might”-based purge—all while quietly switching off procedural fairness at the front end.

This isn’t a laser. It’s a net. And the net is designed to catch people who think they’re nowhere near “extremism”.

The Big Pivot: From “terror” to “hate”—and from “proof” to “risk”

1) “Prohibited hate groups” can be created by regulation (executive pen, not a court order)

An organisation becomes a “prohibited hate group” if it’s specified in regulations—a classic “list first, litigate later” architecture.

The “advocacy” test is where this turns explosive: it captures not just urging violence, but “praise” of a hate crime where there is an “unacceptable risk” that the praise might lead someone else to act.

That’s a triple-elastic concept stack: praise + unacceptable risk + might lead. In law, elastic language doesn’t “protect the community”—it protects discretion.

2) The listing threshold is “reasonably necessary” to protect the community—another rubber phrase

The final Act keeps the threshold that banning must be “reasonably necessary to protect the Australian community”.

What is “harm”? What is “necessary”? Who decides what’s “reasonable”? The Minister does—then the courts are left cleaning up after the fact (if you can even get standing, evidence, and time).

The “No Hearing” Problem: Natural justice is deliberately switched off

The final Act retains the ouster of procedural fairness for listing decisions—word-for-word.

And the Act itself is blunt: the Minister is not required to observe any rules of natural justice in these listing decisions.

So if your organisation is listed:

• you may not get notice beforehand,
• you may not get a meaningful chance to respond,
• and the legal “battle” begins after the damage is done.

That is not a bug. It’s the feature.

Criminal Liability: “Proximity crimes” with heavy burdens on the accused

Once a group is listed, the criminal offences bite hard—directing, membership, recruiting, training, funding, support—with penalties up to 15 years in multiple categories.

Membership: the defence exists—but you carry the legal burden

If charged with membership, there is no "innocent until proven guilty", you escape only if you prove you took “all reasonable steps” to cease membership as soon as practicable after you knew the organisation was listed—and the Act explicitly puts a legal burden on the defendant.

Translation: the State can criminalise you for being “in” and then say, “Sure, there’s a defence—now you prove it.”

“Strict liability” and shifted burdens show up elsewhere too

Training offences include strict liability for whether the organisation is a prohibited hate group (with the Act noting evidential burdens on the accused around mental state issues).

This is how “exception-based law” works: Parliament writes a big offence, then carves out exceptions that sound reassuring—until you realise the risk and cost of proving the exception lands on you.

Symbols: The “public interest” trapdoor + seizure + destruction

The hate-symbols framework doesn’t just criminalise display; it re-engineers courtroom dynamics.

1) “Defence” depends on what a “reasonable person” thinks—and whether it’s “not contrary to the public interest”

The Act says symbol-display offences don’t apply if a reasonable person would consider it for a religious/academic/educational/artistic etc purpose and “not contrary to the public interest”—and then states the defendant bears the evidential burden.

“Public interest” is the magic phrase that can be stretched to fit the politics of the day. It’s a concept that can swallow a defence whole.

2) Police can seize in public on suspicion—and destroy property after 90 days

Police may seize a thing in a public place if they reasonably suspect it’s a prohibited symbol, and may use necessary and reasonable force.

If the item isn’t claimed, police can take steps to contact an owner—but can ultimately destroy it after 90 days.

That is a chilling operational reality for protests, rallies, art installations, journalism, documentary crews, even classrooms.

Migration: The “might” standard + “association” can be one meeting

This is where the law stops pretending it’s only about “the worst of the worst”.

1) “Would” becomes “might” (yes—might)

One of the most dangerous changes in the final legislation is deceptively small: the replacement of **“would”** with **“might”** in key migration character test provisions.

This is not semantic. It is a **collapse of the evidentiary threshold**.

* **“Would”** requires a decision-maker to reach a defensible conclusion that conduct is *likely* to occur.

* **“Might”** requires only that something is *possible*.

“Might” is not a finding of fact.

It is a **prediction** and predictions in migration law are routinely built on **inference, untested intelligence, online activity, associations, and suspicion**, not proof.

In practical terms, this means:

* A person no longer needs to *intend* to engage in harmful conduct.

* They no longer need to *be likely* to engage in it.

* They do not even need to *knowingly* support it.

They only criteria is that the Minister thinks they **“might”** do it.

#### What does “might” look like in real life?

Here are scenarios that now fall squarely within reach:

* A migrant **attended a rally years ago** where a group later becomes listed - They *might* still hold those views.

* A journalist, student, or activist **communicated once** with a controversial figure for research, debate, or reporting -  That association *might* indicate ideological sympathy.

* A person **shared or reposted content online** criticising Israel, the government, or Western foreign policy - That content *might* be interpreted as contributing to hateful or extremist narratives.

* A community leader **failed to publicly condemn** another organisation or individual strongly enough - Their silence *might* be read as tacit endorsement.

* A visa holder **previously belonged** to a political, religious, or activist group overseas that later becomes controversial -  The Minister is **not required to determine** whether that association has ended - Past membership *might* still be relevant.

None of these require:

* a criminal conviction,

* a finding of intent,

* or proof beyond reasonable doubt.

They require only that a Minister **reasonably suspects** that the person *might* pose a risk.

#### Why this matters

In law, the shift from “would” to “might” does something profound:

It moves migration decision-making **out of the realm of evidence** and into the realm of **risk management and political discretion**.

Once “might” becomes the test:

* Innocent explanations become irrelevant.

* Context becomes optional.

* The benefit of the doubt disappears.

And because migration law already allows **limited procedural fairness**, **closed material**, and **non-disclosure of intelligence**, the affected person may never know **what they are accused of**, let alone how to rebut it.

This is how democratic systems quietly slide from **punishing conduct** to **policing potential**.

And once the State claims the power to act on what someone *might* do—**everyone becomes pre-criminal**, and every association becomes a liability.

2) “Spreading hatred and extremism” turns on “Minister reasonably suspects…”

A non-citizen can be caught if the Minister reasonably suspects membership or association with a prohibited hate group (or terrorist org etc), or suspected involvement in “hate crime” conduct even without any conviction, or online/public statements that disseminate ideas of superiority/hatred where there is a risk of harm.

3) “Association” is defined as meeting or communicating—and can be a single meeting

The Act defines association as: you meet or communicate with the organisation—and notes it may consist of a single meeting or communication.

So “I went to one event”, “I messaged someone once”, “I interviewed them”, “I debated them”, “I shared a platform”, “I did community work where they were present”—these are no longer just social facts. They’re legal tripwires.

4) Past membership is enough; the Minister need not determine if it’s ongoing

The Act says the Minister is not required to decide whether membership/association is continuing or concluded.

And it makes clear that none of the limbs of the character test are intended to limit each other—a drafting choice that encourages “pile-on” reasoning.

The Constitutional Fault Lines: where this is vulnerable in Australia

Australia doesn’t have a federal bill of rights—but the Constitution still has teeth. This Act creates real pressure points:

Implied freedom of political communication (IFPC)

When “association” and “public interest” become legal triggers—especially in protest contexts and public debate—there is a serious risk the law burdens political communication more than is reasonably necessary. “Might”, “risk of harm”, “unacceptable risk”, and “public interest” are precisely the kinds of vague standards that can chill lawful political advocacy.

Separation of powers and “executive-made crimes”

When the Executive can effectively create criminal exposure by listing a group via regulation, that is a structural red flag. The reports acknowledge there is no judicial confirmation step; it remains an executive act with consultation, not a court order.

Courts may still review legality, but the operational reality is: the Executive flips the switch, and criminal liability can follow.

Natural justice / procedural fairness ouster

Parliament can try to exclude procedural fairness, and it often does—but the more severe the consequences, the more legally combustible the exclusion becomes. Here, the statute openly embraces “no hearing” listing.

That’s an invitation for constitutional and administrative law challenges, particularly when listings cascade into criminal liability and migration cancellation.

And here’s the quiet sleight-of-hand that should make every federalist’s skin crawl: Canberra has effectively “plugged in” State and Territory criminal laws as the trigger for this new Commonwealth regime. The Act’s definition of a “hate crime” doesn’t just look to Commonwealth offences—it also captures conduct that “would constitute an offence” under specified State/Territory provisions (NSW, Victoria, Queensland, WA, SA, ACT), but only “to the extent” those offences relate to race or national/ethnic origin.

That means a federal listing decision, a federal “prohibited hate group” ecosystem, and flow-on Commonwealth consequences can now ride on the back of State-defined incitement offences and the Act even tells decision-makers to factor in defences (if a defence applies, it’s not conduct that “would constitute an offence”).

In plain English: the Commonwealth has built a national security-style machine that can be activated by a patchwork of State criminal standards, turning State Parliament drafting choices into federal tripwires, with federal punishments and federal immigration fallout.

Who’s at risk (even if they think “this won’t affect me”)

If you’re thinking “I’m not a Nazi / I’m not violent / I’m not an extremist”—congratulations. That is not the test. The test is now proximity, prediction, perception, and politics.

Here are the people who can get burned:

• Students, academics, researchers studying extremist movements (that “public interest” defence + evidential burden is not a warm blanket).
• Journalists and documentary makers who platform or report on controversial organisations, and then have to prove they were “professional” and “public interest”.
• Activists and protest organisers whose events include “symbols” or attendees later linked to a listed group; police can seize and later destroy property.
• Faith leaders and informal community figures (the Act deliberately targets “spiritual leaders… however described”, including informally appointed leaders).
• Diaspora communities and migrants who have historical/past associations or online speech that can be read as “spreading hatred”, with “would” lowered to “might”.
• Human rights lawyers and community advocates who interact with listed organisations or individuals near them—where even protective “exceptions” can carry legal burdens (and investigations are punishment in themselves).
• People who left a movement years ago: the Act says the Minister need not decide if membership is ongoing.
• Anyone who “met or communicated” once: migration law now defines “association” that broadly.

The “Safeguard” they’ll point to—and why it won’t save you

Yes, the final Act adds a statutory review mechanism (a political compromise to get this through).

But a review after the fact is not due process. It’s an autopsy.

Bottom line

This legislation isn’t just “tough on hate”. It is tough on legal certainty.

It normalises:

• executive listing by regulation,
• vague risk-based thresholds (“unacceptable risk”, “public interest”),
• disabled procedural fairness,
• reversed burdens and strict liability elements,
• property seizure and destruction powers,
• and a migration regime built on “might” + one meeting is enough.

And the people who get hit first won’t be the people Parliament imagines in speeches. It’ll be the people who didn’t realise the law was drafted to catch everyone standing nearby.