The Australian government has proposed sweeping new legislation in response to serious terrorist threats. But a critical examination of the Combatting Antisemitism, Hate and Extremism Bill 2026 reveals that its prohibited hate groups framework contains constitutional vulnerabilities that could suppress lawful political advocacy and undermine women’s participation in democracy.
AAWAA has submitted a detailed analysis to the committee scrutinising the bill highlighting four principal areas of concern. The issues go to the heart of how we protect both community safety and democratic participation.
The case for organisational criminalisation remains unproven
At its core, the bill establishes a framework that allows the Home Affairs Minister to list organisations as prohibited hate groups where the Minister is “satisfied on reasonable grounds” that the organisation has advocated conduct constituting a hate crime. Once listed, severe criminal penalties attach: directing a prohibited hate group carries 15 years imprisonment; membership carries 7 years; and recruiting, funding, or supporting such groups carries 10 to 15 years.
Yet the public record contains no demonstrated evidence that this extraordinary step is necessary.
Australia already maintains comprehensive mechanisms for addressing violence and discrimination. Division 80 of the Criminal Code criminalises individuals who advocate or threaten violence against groups distinguished by protected attributes—sections 80.2A and 80.2B already protect groups on the basis of race, religion, sex, sexual orientation, gender identity, intersex status, disability, nationality, national or ethnic origin, and political opinion. Civil anti-discrimination frameworks through the Australian Human Rights Commission and state tribunals provide remedies including policy changes, apologies, and compensation, with full procedural fairness. The Sex Discrimination Act provides exemption processes for organisations maintaining single-sex services or spaces. Parliament itself provides the democratic forum for resolving contested policy issues.
The government has provided no analysis explaining why individual prosecution under existing hate crime offences is insufficient, or why criminalising organisations for political advocacy is necessary rather than prosecuting individuals for criminal conduct.
This evidentiary gap is critical. Under the High Court’s proportionality test in McCloy v New South Wales, laws that restrict political communication must be necessary—meaning there must be no “obvious and compelling less restrictive alternative.” The bill provides no evidence of this necessity.
Procedural fairness has been deliberately excluded
The bill contains explicit provisions that remove all procedural fairness protections before listing occurs. Section 114A.45 states, “The AFP Minister is not required to observe any requirements of procedural fairness in deciding whether or not the AFP Minister is satisfied for the purposes of this section.”
This means organisations face listing without:
- Notice before the decision is made
- An opportunity to respond to allegations
- A hearing
- Disclosure of the evidence or intelligence on which the listing decision is based
The organisation discovers it has been listed only after a regulation is made. Criminal liability for membership, directing, recruiting, or supporting then attaches immediately.
While Australian administrative law recognises that jurisdictional error remains reviewable through judicial review, such review occurs only after listing has occurred and criminal consequences have attached. An organisation cannot challenge the decision before being criminalised. Throughout the review process, its operations cease, its members face prosecution, and its advocacy is suppressed.
This structure creates a tension with the Kable principle: the constitutional doctrine holding that courts exercising federal jurisdiction must maintain institutional integrity. Courts become vehicles for enforcing criminal penalties based on executive determinations made without procedural fairness and with limited oversight. This may compromise the courts’ institutional integrity.
Retrospective criminalisation
There is a further, critical constitutional problem: the framework operates retrospectively. Individuals who engaged in lawful political advocacy or organisational membership before an organisation is listed would face criminal prosecution for conduct that was not criminal when undertaken. The bill applies criminal liability retroactively—organisations become prohibited only after ministerial listing, but members and supporters who joined when membership was lawful face criminal consequences for that prior participation.
This violates the fundamental principle that criminal liability must be prospective and knowable at the time conduct occurs. When organisations can be listed without warning or procedural safeguards, creating retroactive criminal consequences for lawful political participation, the rule of law itself is compromised. Individuals cannot make informed decisions about their participation in advocacy organisations when they face the risk of retrospective criminalisation.
Political communication and the proportionality test
The framework captures organisations based on advocacy rather than engagement in criminal conduct. Political advocacy organisations communicate on governmental and political matters; they do not engage in violence. The rational connection between criminalising organisational membership for advocacy positions and preventing violence is attenuated.
The framework conflates political disagreement with incitement to violence. Section 114A.22 defines ‘advocacy’ as including conduct where there is an “unacceptable risk” that praise of violence-constituting conduct might lead a person to engage in that conduct. This standard is subjective and broad.
The penalties are also grossly disproportionate where the threshold for listing is advocacy rather than criminal conduct. Organisations engaged in lawful political advocacy on contested policy issues—communicating through parliamentary submissions, public campaigns, and policy debates—would face potential criminalisation. For women’s organisations, the consequences are particularly concerning. Women have documented that advocacy on contested issues relating to sex-based protections already results in professional consequences, de-platforming, and public vilification. Adding criminal penalties of 7 to 15 years imprisonment would suppress organised political participation on matters where policy positions are contested between groups holding different protected attributes.
The chilling effect on political participation is evident and severe.
Consultation failures and international obligations
The bill was released as an exposure draft on 12 January 2026, with submissions due by 4 pm on 15 January 2026—a 72-hour consultation period for a complex omnibus bill containing amendments across multiple portfolios including criminal law, migration, customs, and firearms.
The public record contains no evidence of consultation with women’s organisations during the bill’s development. This is significant. The framework, if expanded beyond its current limitation to race and national origin, could affect organisations advocating for women’s protections based on our sex—a protected attribute under Australian anti-discrimination law.
This consultation failure raises concerns under Australia’s obligations under the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). Article 7 requires states to ensure women’s right to participate in the formulation of government policy. The CEDAW Committee’s General Recommendation No. 23 is clear: “When women are not broadly represented in the senior levels of government or are inadequately or not consulted at all, government policy will not be comprehensive and effective.”
Meaningful participation requires consultation at the development stage, not merely an opportunity to make submissions during a 72-hour exposure draft period. Where legislation establishes a framework potentially applicable to advocacy organisations engaged in political communication on contested policy issues affecting women’s rights, the absence of consultation constitutes a breach of Article 7.
Structural gaps in the public record
Beyond constitutional and procedural concerns, significant analytical gaps remain:
No impact assessment on democratic participation. The public record contains no assessment of how the framework might affect organisations engaged in lawful political advocacy, freedom of association, or democratic participation on contested policy issues. No analysis exists on resolving conflicts where advocacy for one protected attribute is characterised as harmful to another.
No guidance on political advocacy versus criminal conduct. The bill provides no clear guidance on distinguishing political advocacy on contested issues from advocacy of hate crimes. There is no explanation of how “serious risk to the health or safety of a section of the public” is assessed for organisations engaged in advocacy rather than violent conduct. There are no safeguards preventing characterisation of political disagreement as incitement to violence.
These gaps are inconsistent with good governance practices and with Australia’s obligations under CEDAW to ensure women’s participation in policy formulation.
Our recommendation: extend the consultation period
AAWAA’s primary recommendation is clear: the committee should request an extension of the consultation period—ideally, until after the Royal Commission on Antisemitism and Social Cohesion has released its report. Consideration of the bill must be deferred to enable meaningful consultation with affected communities, including women’s organisations, civil liberties organisations, and advocacy groups engaged in political participation on contested policy issues.
In the absence of an extension, we have asked the committee to consider whether:
- The government has provided detailed evidence demonstrating why existing civil and criminal mechanisms are inadequate to address the harms the bill seeks to prevent, and why organisational criminalisation is necessary rather than individual prosecution
- Sections 114A.45 and 114A.55 should require procedural fairness, including notice to the organisation, an opportunity to respond to allegations, and disclosure of evidence before listing occurs
- Legislative guidance is needed to distinguish political advocacy on contested issues from advocacy of criminal conduct, with safeguards preventing characterisation of political disagreement as incitement to violence
- A comprehensive impact assessment is required examining effects on democratic participation, freedom of association, and resolution of conflicts between protected attributes, with particular attention to impacts on women’s organisations and compliance with CEDAW obligations
- Less restrictive alternatives—civil remedies, individual prosecution mechanisms, existing hate crime offences, and democratic processes—have been systematically evaluated
We do not offer these considerations as recommendations that engage with or legitimise the content of this flawed bill. Rather, we ask the committee to carefully examine whether the government has met the constitutional, procedural, and evidentiary standards required before legislation of this gravity proceeds.
Protecting both safety and democracy
The government’s intention to prevent violence and protect community safety following serious terrorist incidents is legitimate and demands careful attention. But serious legislation requires serious process.
The constitutional vulnerabilities in this framework are real. The absence of evidence demonstrating necessity, the deliberate exclusion of procedural fairness, the lack of consultation with affected communities, and the broad discretion to suppress advocacy organisations all point to a structure that prioritises executive power over democratic participation and rule of law.
Australia can respond to terrorist threats while maintaining constitutional protections and democratic participation. But the current proposal, as drafted and as consulted, fails to do so. The 72-hour consultation period itself is evidence of the process failure that permeates this bill.
We have called for an extension of the consultation period. Until that extension is granted, and until meaningful consultation occurs, this legislation should not proceed. Read our full submission, below.
