Understanding the federal government’s proposed hate speech laws

Legal experts have expressed a range of views, including raising key issues with the draft Bill which they argue should be addressed before it is passed by Parliament. Following the deadly terror attack at Bondi in December last year, which targeted the Jewish community, the Australian Government announced its intention to develop and introduce legislative reform.

At the beginning of this week, a draft omnibus Bill was released which would amend hate speech, migration, customs, and firearm related legislation. The Bill remained open to public submissions until Thursday afternoon as part of a review by the Parliamentary Joint Committee on Intelligence and Security. Federal Parliament has been recalled early in order to debate the Bill next week.

While this hastened timeline has been criticised by some for its effect on the quality of the Bill, others say the government was under pressure to act quickly on hate speech law reform, which it has done. The Combating Antisemitism, Hate and Extremism Bill 2026 is broad, with sections related to gun buybacks and the importing of firearms, as well as visa refusals and cancellations.

A section of the Bill focused on amending criminal law to combat hate speech has sparked significant debate. As well as introducing aggravated hate speech offences for preachers and leaders who advocate or threaten violence, this section of the Bill would establish a racial vilification offence.

(The Prime Minister later announced the Bill would be split and the Government would not proceed with the racial vilification provisions, because it was clear these would not have the support of the Parliament).

Limiting free speech

Much of the debate around this section of the Bill has focused on how it might limit free speech. University of Queensland Professor Kath Gelber is an internationally recognised expert in free speech and the regulation of harmful speech. She has been involved in the research of hate speech laws in Australia for the past 30 years.

Gelber says in developing legislation of this nature, striking a balance between the suppression of hate speech and protecting rights to free speech is “vital”.

“In my view the Bill goes some way towards this, but could be improved in several respects,” she says. One area Gelber says the Bill could be improved lies in the wording of the racial vilification offence. The offence, which would carry a maximum penalty of five years imprisonment, is defined by three key criteria:

• the person engages in conduct in a public place
• the person engages in the conduct intending to either: promote or incite hatred of another person or persons because of their race, colour or national ethnic origin; or disseminate ideas of superiority over or hatred of another person or group of persons because of their race, colour or national ethnic origin
• 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.

This is not the first example in Australia of hate speech being criminalised. In 2025, both NSW and Victoria amended their respective Crimes Acts to include the incitement of racial hatred.

Where the new Bill stands out, according to Gelber, is in its suggestion of “a new criminal vilification provision with a threshold”.

“The inclusion of ‘promote’ lowers the threshold for criminality considerably,” she says. “In NSW the phrase used was incite hatred, and in Victoria it is incite hatred, serious contempt, revulsion, or severe ridicule. All provisions require intent.

“The new federal law will therefore considerably change the legal landscape by lowering the threshold for criminality.”

Even with this inclusion, Professor Luke McNamara from the UNSW Faculty of Law and Justice says to meet all three of the identified criteria is a high threshold for conviction.

“On face value, this offence might appear to significantly restrict free speech,” McNamara says. “But the prosecution will need to prove not simply that the conduct was experienced by the target group as intimidating, harassing or fear-inducing, but that the speaker intended to promote or incite hatred, or disseminate ideas of superiority or hatred.

“This represents an important constraint on the sort of conduct that will be criminalised by this new offence.” McNamara has been researching criminalisation as a public policy tool for decades.

He says Australia’s approach to free speech has always recognised a need to balance competing interests and rights. “The concern often raised about laws of this sort is that they have a chilling effect on free speech, and that this is undesirable in a liberal democracy,” he says. “The intention of the proposed new offence is to only “chill” particular types of speech: harmful hate speech that is seriously inconsistent with Australia’s commitments to multiculturalism and cultural diversity.” He adds that the impact of this Bill will be determined by how it is implemented by police and prosecutors.

Religious text defence

The racial vilification offence is caveated in the Bill by a defence which has been criticised among experts. Directly after outlining the criteria for racial vilification, the Bill states that it “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”.

Professor Luke McNamara says this provision may do more harm than good. “The inclusion of a defence for religious teaching or discussion appears designed to provide reassurance that ‘legitimate’ preaching will not be criminalised,” he says. “But it gives the impression that people of faith are entitled to free speech latitude that other Australians do not have.”

Questioning whether the caveat is necessary, McNamara notes that the intent to incite or promote hatred criteria is unlikely to be satisfied when quoting from a religious text. “If their intention in so doing was to incite hatred, I do not see why they should be exempt from prosecution.” Professor Kath Gelber argues that if a defence of this nature is to exist, it should be limited to “directly quoting from” religious texts. “In my view the ‘or otherwise referencing’ is too broad,” she says.

Is criminalisation the answer?

Historically in Australia, hate speech has been a matter of civil rather than criminal law. “Australia is unique globally with its emphasis on a civil law approach, which is intended to be educative and to set a standard for public debate while at the same time protecting free speech appropriately,” says Gelber. “While criminal laws have been in existence for 30 years in various forms, they are very rarely used.”

This is not the first legislation in Australia to criminalise hate speech, but the new Bill is significant because it proposes to do so at a federal level. “Criminal law in Australia has been reserved for hate speech that urges or threatens violence,” says McNamara.

“Few would argue about the appropriateness of criminalising behaviour of this sort.

“The criminalisation of racist hate speech that does not incite violence, however, is more contentious.”

In its response to the draft Bill, the Jewish Council of Australia argues that “approaches which centre on criminalisation and migration powers cannot meaningfully address racism and antisemitism”. It argues criminalisation treats “racism as an individual pathology to be punished rather than a systemic problem that must be prevented through education, leadership, accountability and sustained community investment”.

“As a Jewish organisation, we take antisemitism extremely seriously. But rushing through sweeping criminal laws is not going to make Jews safer,” Jewish Council of Australia Executive Officer Dr Max Kaiser says. “Racism is not defeated by expanding police or migration powers or weakening safeguards on free expression. It is defeated by addressing root causes, investing in prevention, and building trust and solidarity across communities.”

Gelber says along with education, leadership on the standards for public discourse is vital in combating hate speech and racial vilification. “The key issue is that people should not expect the criminal law – no matter how well drafted – to solve complex social problems,” she says. “We need ethical standards for public discourse that recognise the position of those with whom we disagree.”