Federal
Problems with the
Anti-Hate Legislation
There are many concerning elements of the Combatting Antisemitism, Hate and Extremism Bill 2026. One of the most significant problems is the introduction of a new offense “Publicly promoting or inciting racial hatred” (80.2BF in the Criminal Code).
While we commend the attempt to restrict antisemitism and other racial hatred, this legislation is poorly written and has significant risks of unintended consequences.
More dangerously, Labor, Greens and Independent MPs have all signalled their desire to have this section expanded to include protecting other categories – such as religion, gender and sexuality.
If this happens, then the bill would be one of the worst assaults on religious freedom in Australia’s history.
Problems with the Legislation
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A person commits an offence if:
- the person engages in conduct in a public place; and
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the person engages in the conduct intending to:
- promote or incite hatred of another person (the target), or a group of persons (the target group), because of the race, colour or national or ethnic origin of the target or target group; or
- disseminate ideas of superiority over or hatred of another person (the target), or a group of persons (the target group), because of the race, colour or national or ethnic origin of the target or target group; and
- the conduct would, in all the circumstances, cause a reasonable person who is the target, or a member of the target group, to be intimidated, to fear harassment or violence, or to fear for their safety.
Example: Inciting antisemitic hatred against Jews in a public place where a reasonable member of the Jewish community would be intimidated or fear violence.Penalty: Imprisonment for 5 years. - Strict liability applies to paragraph (1)(c).
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For the purposes of subsection (1), it is immaterial whether:
- the target, or members of the target group, actually are distinguished by the particular race, colour or national or ethnic origin; or
- the conduct actually results in hatred of another person or group of persons; or
- the conduct actually results in any person feeling intimidated, fearing harassment or violence, or fearing for their safety.
- Subsection (1) does not apply to conduct that consists only of directly quoting from, or otherwise referencing, a religious text for the purpose of religious teaching or discussion.
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In this section:
engages in conduct in a public place: without limiting when a person engages in conduct in a public place, a person engages in conduct in a public place if the person:
- communicates to the public using any form of communication (including speaking, writing, displaying notices, graffiti, playing of recorded material, broadcasting and communicating through social media and other electronic methods); and
- engages in any conduct (including actions and gestures and the wearing or display of clothing, signs, flags, emblems and insignia) that is observable by the public; and
- distributes or disseminates any matter to the public.
To avoid doubt, a person may engage in conduct in a public place even if the conduct occurs on private land.Note: Public place is defined in the Dictionary.fear includes apprehension.
Unclear conduct
The first problem with the section is that the conduct described in 1(b) is vague. The two actions described are “promote or incite hatred” and “disseminate ideas of superiority over or hatred”.
Many of these terms, like “promote” and “disseminate” are unclear, and could be expanded by an activist prosecutor or judge to include a wide range of behaviour.
The term “hatred” is not defined in this section. “Hatred” is a famously slippery term, and something that might be defined as hatred by one person would not be done so by another. In many cases, traditional, main-stream religious teaching has been described as “hate speech” by minority groups.
“Hatred” is defined in other parts of the legislation – and each time they use a different definition. One definition in the Bill includes ‘hostility, malice or ill-will’. This is a dangerously low bar for a criminal offense attracting 5 years in prison.
Subjective Test
This unclear conduct is exacerbated by introducing a subjective test for harm. The test for harm in this section is:
- the conduct would, in all the circumstances, cause a reasonable person who is the target, or a member of the target group, to be intimidated, to fear harassment or violence, or to fear for their safety.
Point (7) further expands the test, by defining “fear”:
- In this section..
- fear includes apprehension.
Importantly, clause (3) of the legislation clarifies that the conduct does not have to have actually caused any violence, intimidation, fear or apprehension.
This means that conduct becomes illegal if it could have caused a member of the targeted group to feel intimidated. It puts the power entirely in the hands of the individual or group claiming offence.
Protected Categories
At this point in time, the offense is tightly limited to targeting a person or group “because of the race, colour or national or ethnic origin of the target or target group”. With this restriction the legislation is a heavy-handed, but possibly workable, solution for antisemitic language.
However, there are already moves to expand this legislation, which would make this legislation devastating to religious freedom.
Risk of Expanding the Protected Categories
The Prime Minister, Multicultural Minister, Greens and Independent Allegra Spender have all indicated the desire to extend this new legislation to include other protected categories – such as religion, gender and sexuality.
If this happens, then the bill would silence a wide range of religious speech and debate.
If religion was included as an attribute, the concept of disseminating “ideas of superiority” would include any claim that one religion was true and another false.
If gender or sexuality were included, then traditional religious teachings about these topics could be considered “promoting” hatred for LGBTIQ+ people.
In both cases, no real harm needs to have been caused, only for the potential that a member of the targeted group would feel intimidated.
Freedom for Faith supports legislation that will protect from antisemitism and other forms of racial hatred. However this legislation is poorly structured and has significant risks for unintended consequences and restricting fundamental rights of speech and religion.
The legislation is being voted on in days. Write to your MP now to ask them to slow down, consult properly, and fix the bill.
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