By Annika Ramasamy
Racial vilification laws have historically struck a fine balance with freedom of speech rights. Cases such as Eatock v Bolt, which held that Herald Sun columnist Andrew Bolt’s commentary on the skin colour of Aboriginal people was unlawful under the Racial Hatred Act 1995, have captured public discourse for this reason.[1]
Against the backdrop of the Bondi Beach terrorist attack last December, racial vilification laws are more topical than ever. A new set of amendments have been introduced aiming to strengthen our national hate speech laws. The Combatting Antisemitism, Hate and Extremism (Criminal and Migration Laws) Act 2026 was passed by both houses on 20 January 2026, and came into effect shortly after.[2]
I THE NEW LAWS: AN EXPLAINER
Despite a failed proposal to enact an incitement to hatred criminal offence, the Act incorporates measures that aim to fortify existing hate crime laws. Sections 80.2A and B of the Criminal Code now criminalise ‘advocating’ for the use of force or violence against specific groups and their members.[3] Penalties for hate crime offences have been increased, including aggravated offences for religious leaders.[4] Existing prohibitions banning the display of Nazi and other terror symbols have also been expanded.[5]
In addition to strengthening existing laws, the Act has also introduced several new criminal offences into the Criminal Code Act 1995 (Cth) which target both ‘prohibited hate groups’ as well as those who support, direct or fund them.[6]
Notably, the Act has expanded the discretionary powers of the Australian Federal Police (AFP) Minister. Under the new laws, the Minister can refuse to grant or cancel a visa where they reasonably suspect that the person is, or has been a member of, or had an association with a prohibited group, has been involved in a hate crime, or has made or endorsed public statements (including those online) that involve hate speech.[7]
Overall, the Act aims to ensnare organisations that have previously operated just within the law. These include groups such as the National Socialist Network (NSN), a neo-Nazi organisation, and Hizb ut-Tahrir, a proscribed terrorist organisation in the UK, Germany and India. Both were explicitly named by Attorney-General Michelle Rowland as groups that the Act will target.[8]
II CRITICS AND SUPPORTERS
Like Rowland, Foreign Minister Penny Wong has said that the legislation is about cracking down on those who seek to incite criminal behaviour motivated by hatred, simultaneously playing down the laws’ potential effect on freedom of expression.
‘It is not legislation which is designed to prevent differences of views and freedom of speech’, Wong said, in an interview with ABC AM.[9]
In a step to ensure that the amendments would “positively engage the right to freedom of thought, conscience, and religion”, the supplementary explanatory memorandum further requires the Standing Committee on Legal and Constitutional Affairs to commence a review of the prohibited hate symbol provisions after the Act’s second anniversary since commencing.[10]
Despite these assurances, some are not convinced. The Australian National Imams Council (ANIC) have voiced concerns that the legislation will impinge upon their ability to criticise foreign governments or political ideologies.[11] This is particularly relevant in the context of the pro-Palestine movement, where they fear that the laws would quash valid criticism of the Israeli government’s actions since October 2023. In response, Rowland stated that the Act will not ‘prevent legitimate, nonviolent criticism of the actions of a foreign country or of particular political ideologies’.[12]
Although the Attorney-General’s reply suggests that criticism of overseas governments would not constitute hate speech, some still note the chilling effect the uncertainty the laws may have on public protests.
A submission from the Human Rights Legal Centre (HRLC), a not-for-profit, raised the concern that the expansion of the Minister’s discretionary powers will allow migration laws to be weaponised, allowing for the visa refusal or cancellation of those with innocent, unintended or coerced ‘association’ with overseas terror groups. According to the HRLC, this weaponisation risks inciting inter-community conflict, further quashing legitimate political expression and eroding social cohesion.[13] The broad definition of ‘association’ was also labelled a cause for concern in the Law Council’s submission; the peak representative body of Australia’s legal profession.[14]
Finally, multiple submissions also touched upon the Act’s lack of proper consultation as only two days were set aside for external input on the reforms. Rushed legislation, as warned by the HRLC, runs the risk of making mistakes and having unintended consequences.[15]
III IMPLIED FREEDOM OF POLITICAL COMMUNICATION
Since the Act has come into effect, the group Hizb ut-Tahrir has announced that it will challenge the laws in court if they are listed.[16] One avenue for this may be by arguing that the laws contravene the Commonwealth constitution’s implied freedom of political communication.
The test for the validity of legislation burdening the implied freedom of political communication was laid out in Lange and modified further in Coleman v Power:[17]
First, the law must effectively burden freedom of communication about government or political matters either in its terms, operation or effect.
Once the burden is identified, the legislative end must be a legitimate end as well as be compatible with the constitutionally prescribed system of representative and responsible government.
Finally, the operation of the law must be reasonably ‘appropriate and adapted’ to both the legitimate and compatible end.
IV CONTRAVENTION OF IMPLIED FREEDOM OF POLITICAL COMMUNICATION
We can perhaps look to previous racial vilification cases to determine whether groups such as Hizb ut-Tahrir could successfully entreat the courts to recognise an implied freedom of political communication.
It seems unlikely. As stated by Bromberg J in Eatock v Bolt, there are many examples of laws which intrude upon free political discourse that are in fact constitutionally valid as they serve a countervailing public purpose. For instance, laws dealing with contempt of court, confidential information, and torts of negligent misstatement, deceit and injurious falsehood, all impose limitations on freedom of expression due to legitimate countervailing interests.[18]
Similarly, the Act clearly has a legitimate countervailing public purpose to deter and detain those who seek to spread hate speech or commit hate crimes.
Another significant point raised in Eatock is the importance of the values of dignity and equality which lie at the core of racial vilification laws. As put in Eatock, hate speech amounts to an assault upon a person’ s basic social standing and upon the recognition of them as social equals.[19] The damage inflicted by speech and crimes motivated by hatred cannot be understated, particularly in a multicultural nation such as Australia.
It is difficult to tell how these laws will be enforced so soon after the Act has been passed. Although the broad, encompassing language of the Act seeks to dismantle bad faith groups such as NSN and Hizb ut-Tahrir, that same ambiguity conversely has the potential to stifle legitimate public freedom of expression. Ultimately, the law must strike a balance between two countervailing interests; ‘freedom of speech, protest and debate, and the significant harms caused by extremist hate speech.’[20]
[1] Eatock v Bolt (2011) 197 FCR 261.
[2] Combatting Antisemitism, Hate and Extremism (Criminal and Migration Laws) Act 2026 (Cth).
[3] Ibid 29.
[4] Ibid 3.
[5] Ibid 32.
[6] Ibid 20–4.
[7] Ibid 43–51.
[8] Sara Tomevska, ‘What New Hate Laws Have Passed Parliament: What Will They Do?’, ABC News (online, 21 January 2026) <https://www.abc.net.au/news/2026-01-21/what-will-new-hate-laws-do/106253754>.
[9] Ibid.
[10] Supplementary Explanatory Memorandum, Combatting Antisemitism, Hate and Extremism (Criminal and Migration Laws) Act 2026 (Cth) 3 [5], 4 [1]-[2].
[11] Mostafa Rachwani, ‘Attorney-General Tells Imams New Hate Speech Laws Won’t Silence Criticisms of Foreign Governments’, Sydney Morning Herald (online, 26 January 2026) <https://www.smh.com.au/national/nsw/attorney-general-tells-imams-new-hate-speech-laws-won-t-silence-criticisms-of-foreign-governments-20260126-p5nwyl.html>.
[12] Ibid.
[13] Human Rights Law Centre, Submission to the Senate Legal and Constitutional Affairs Committee, Parliament of Australia, Submission on Combatting Antisemitism, Hate and Extremism Bill 2026 (Cth) (15 January 2026) (‘Human Rights Law Centre Submission’).
[14] Law Council of Australia, Submission to the Parliamentary Joint Committee on Intelligence and Security, Parliament of Australia, Combatting Antisemitism, Hate and Extremism Bill 2026 (Cth) (15 January 2026).
[15] Human Rights Law Centre Submission (n 13).
[16] Jordyn Beazley, ‘Australian Chapter of Islamist Group Hizb ut-Tahrir Has No Plans to Disband Before Labor’s Hate Speech Laws’, The Guardian (online, 15 January 2026) <https://www.theguardian.com/australia-news/2026/jan/15/australian-chapter-of-islamist-group-hizb-ut-tahrir-has-no-plans-to-disband-before-labors-hate-speech-laws>.
[17] Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; Coleman v Power (2004) 220 CLR 1.
[18] Eatock v Bolt (2011) 197 FCR 261, 313 [219].
[19] Ibid 314 [222].
[20] Holly Tregenza and Clare Armstrong, ‘What Is in the Government’s New Hate Speech Laws?’ The ABC (online, 16 January 2026 ) <https://www.abc.net.au/news/2026-01-16/hate-speech-laws-labor-antisemitism-bondi/106231326>.