Normative Bases

While the "Combatting Antisemitism, Hate and Extremism (Criminal and Migration Laws) Bill 2026" aims to address serious issues, several aspects raise significant human rights concerns and could lead to unintended consequences that undermine the foundational principles of a democratic society.

The Bill engages numerous human rights under international conventions, including the right to freedom from arbitrary detention, presumption of innocence, freedom of thought, conscience, religion, opinion, expression, peaceful assembly, and association, as well as rights relating to privacy, family, and children. Although the Explanatory Memorandum argues these limitations are "reasonable, necessary and proportionate", the broad scope of some provisions and the shift in legal burdens could lead to potential overreach and a chilling effect on legitimate activities, thereby conflicting with Legal Principle related to human rights protections.

For instance, the increased maximum penalties for aggravated offences for religious or spiritual leaders and for adults radicalising children, while intended to deter harmful conduct, could be seen as excessively punitive or disproportionate, potentially leading to prolonged arbitrary detention. This could be particularly problematic given the broad definitions of "religious official" and "spiritual leader," which might inadvertently capture individuals engaged in legitimate, albeit unpopular, discourse if interpreted too expansively. The fact that absolute liability applies to the age of the offender in some aggravated offences, while argued as an objective fact, removes the defense of reasonable mistake of fact, which could lead to unjust outcomes where intent or knowledge is absent.

A significant concern lies in the reversal of the burden of proof for offences related to the public display of prohibited hate symbols. Requiring defendants to prove a "legitimate purpose" for displaying a symbol places an evidential and legal burden that challenges the fundamental Legal Principle of the presumption of innocence. While the government justifies this by arguing the defendant has "peculiar knowledge" of their purpose, this shift could make it unduly difficult for individuals, such as academics or journalists, to defend legitimate educational or artistic uses, even with safeguards for public interest.

The new framework for listing "prohibited hate groups" and criminalising association with them raises serious questions about freedom of association and expression. While aimed at violent extremist groups, the broad definition of "hate crime" and "organisation" could potentially encompass groups whose activities are primarily political or social dissent, rather than directly violent. Criminalising membership of, or providing support to, a listed organisation may have a chilling effect on individuals who might otherwise engage in political advocacy or social support, thereby undermining Pro-Democracy principles that champion robust civic participation and free speech. The lack of procedural fairness for the AFP Minister's decision to recommend specifying an organisation as a prohibited hate group is a critical concern, as it removes opportunities for challenge and delay, raising questions about transparency and accountability in the listing process.^[1]

Furthermore, the migration amendments, particularly the expanded grounds for visa refusal or cancellation based on "reasonable suspicion" and public statements, may limit the right to freedom of expression for non-citizens and could lead to arbitrary decisions. The shift in the character test threshold from "would" to "might" engage in harmful conduct lowers the standard for visa denial, potentially impacting a wider range of non-citizens. The possibility of family separation due to visa cancellations or refusals, even with stated considerations for the best interests of the child, remains a significant concern for human rights advocates, potentially conflicting with the Non-Discrimination principle if applied unevenly or without sufficient consideration for individual circumstances.

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The Explanatory Memorandum states that procedural fairness is not required for the Director-General of Security's advice or the AFP Minister's decision to recommend specification, and this is "consistent with the Government’s intent that organisations which meet the threshold for proscription are prescribed in an efficient and timely manner to reduce the possibility of further harm to the community".

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