What impact will the criminal hate provisions in the Albanese government’s Combatting Antisemitism, Hate and Extremism Act 2026 have on the ability of ordinary Australians to protest?

An earlier version contained a criminal offence of promoting or inciting racial hatred. The government dropped this part of the legislation after both the Coalition and the Greens opposed it.

However, inciting racial hatred remains relevant to the other key provisions, which permit the banning of “prohibited hate groups”.

A group can be prohibited under the new law if the governor-general makes a regulation prohibiting it. The governor-general acts on the advice of the minister for the Australian Federal Police. There are a number of conditions that must be met before a group can be banned.

First, the minister must be satisfied on reasonable grounds that the group has engaged in conduct constituting a “hate crime”, or has been associated with a hate crime, by preparing, planning, assisting, or advocating engaging in such conduct. This is the initial trigger for banning a group.

Second, the minister must be satisfied that banning the group is reasonably necessary to protect the Australian community from social, economic, psychological and physical harm.

The bill was altered to water down this requirement in two ways. It now also applies to protecting “part of the Australian community” from such harm. In addition, it says this social, economic, psychological and physical harm can simply be the continued presence in Australia of the group that has engaged in or been associated with the conduct constituting a hate crime. The minister would therefore have little difficulty being satisfied of this second condition.

The third condition is that the minister must have received advice from the director-general of security (who is the head of ASIO) recommending consideration of banning the group. The director-general must be satisfied the group has engaged in activities that are likely to increase the risk........

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