After the dreadful terrorist incident at Bondi on December 14 2025, where 15 folk from the Jewish community were murdered, the Federal government has introduced new “hate speech” laws at the national level. Whenever there is a proposal to target “hate speech” there is always a potential danger that unpopular religious views will be caught up in the ban. However, it seems that the recently enacted changes will have little impact on religious freedom in Australia, except where religion is offered as a reason to justify calls for violence against others. In this post I will try to spell out what the changes are, and why they seem to be a reasonable response to the danger of terrorist violence.

1. A limit on religious freedom

It seems best to address one of the most pressing issues to start with: can religious freedom be used to excuse violence or calls for violence? I think the answer is clearly, No.

Free exercise of religion is an important human right, recognised for centuries as part of our Western legal tradition, and enshrined in major international agreements. Probably the most important one, which Australia has undertaken to be bound by, is the International Covenant on Civil and Political Rights (the ICCPR), article 18 of which provides for a broad right of religious freedom, both belief and practice. The major limit to this right is spelled out in art 18(3):

Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.

It is clear that practicing or promoting a religious view that would mandate or permit violence against others would be a breach of public safety and order, and a clear denial of the fundamental right of persons to be free from unlawful bodily harm. Hence the protection of religious freedom under art 18 cannot be used to justify commission of, or incitement of, physical violence.

In Australia we have a general prohibition on Commonwealth law interfering with the free exercise of religion, in s 116 of the Commonwealth Constitution. But a key decision on this provision,Adelaide Company of Jehovah’s Witnesses Incorporated v Commonwealth [1943] HCA 12; (1943) 67 CLR 116 held that what this prohibited was “undue” interference with the practice of religion, and comments in that case made it clear that religious freedom could not be used to justify a serious threat to national security in a time of war. Latham CJ commented at 131:

It is consistent with the maintenance of religious liberty for the State to restrain actions and courses of conduct which are inconsistent with the maintenance of civil government or prejudicial to the continued existence of the community.

Indeed, for Christians, it is clear that Jesus rejected the use of physical force or violence as a means of spreading the gospel message- see for example, Luke 22:49-51, John 18:10-11, where he rebukes his disciples for using violence to prevent his arrest.

So at both international law and under Australian law, and under Christian teaching, the state is justified in restricting the infliction of violence on others, even if purportedly justified by religious teaching.

2. Details of the new laws

The new “hate speech” provisions are contained in the Combatting Antisemitism, Hate and Extremism (Criminal and Migration Laws) Act 2026 (No 2 of 2026) (“the Act”), which commenced operation on 22 January 2026. (It should be noted that an earlier version of the Bill was amended at the last minute to remove provisions banning certain types of hate speech which were arguably too widely drafted- so it is important to note exactly what did become law when it was passed by the Parliament.)

The Act is not easy to read, as much of it assumes knowledge of provisions that were already in force under the Commonwealth Criminal Code (contained in a Schedule to the Criminal Code Act 1995 (Cth)). See here for a previous comment I made when some of those provisions were introduced following the earlier wave of anti-semitic attacks, especially in Sydney. As I said then, these new provisions, in my opinion, did not really threaten religious freedom in significant ways. The same seems to be the case with the latest legislation.

I will work through the amendments in the order in which they appear in the Act.

A. Aggravated offences for preachers and leaders

A number of amendments introduce increased penalties for existing offences under the Criminal Code when those offences are commuted by religious leaders. The existing offences impacted in this way are as follows (the summaries of the offences are not complete, they are just designed to give the general gist):

• section 80.2BA(1) and (2): threatening to use force or violence against a group (the targeted group), where the targeted group is distinguished by race, religion, sex, sexual orientation, gender identity, intersex status, disability, nationality, national or ethnic origin or political opinion (“general discrimination grounds”);
• section 80.2BB(1) and (2): threatening violence against a person based on belief that the targeted person is a member of a group (the targeted group); or a close associate of a member of a group (the targeted group); and the targeted group is distinguished by the general discrimination grounds;
• section 80.2BD(1) and (2): threatening to cause damage to, or the destruction of, real property or a motor vehicle; because of the offender’s belief that the real property is a place of worship of a group (the targeted group), or the property or motor vehicle is associated with someone from that group, where the group is distinguished by the general discrimination grounds.

New section 80.2DA spells out the conditions under which the increased penalty will apply to religious or spiritual leaders. It defines those terms as follows, in s 80.2DA(6):

religious official includes a person who performs religious functions (including a person who leads worship or provides religious instruction), whether or not the person has been appointed (formally or informally) to an official role in a religious institution.

spiritual leader includes a person who performs religious functions (including a person who leads worship or provides religious instruction), whether or not the person has been appointed (formally or informally) as a spiritual leader.

In effect, the people subject to these aggravated offences may be formally ordained clergy, or simply someone who “leads worship” or “provides religious instruction”, presumably covering youth workers, bible study leaders or those who teach Special Religious Education in schools.

If the specified offences were too general, this sort of provision would seem to be contrary to the prohibition under s 116 of the Constitution noted above. But the relevant offences are very specific and involve seriously harmful behaviour- threatening force or violence against individuals, or damage to or destruction of buildings or motor vehicles. Urging such behaviour is likely to be more harmful when it is carried out by respected religious leaders. Indeed, the Christian New Testament itself makes it clear that those who take on teaching the Bible will be held more accountable than others- see James 3:1: “Not many of you should become teachers, my brothers, for you know that we who teach will be judged with greater strictness” (ESV). So making such behaviour unlawful, and increasing the possible penalty for religious leaders who misuse their position by teaching such things, seems reasonable.

B. Increased penalty for using a postal or similar service to menace, harass or cause offence

The Act increases the existing penalty applicable under s 471.12 of the Criminal Code. That section provides:

471.12 A person commits an offence if: (a) the person uses a postal or similar service; and (b) the person does so in a way (whether by the method of use or the content of a communication, or both) that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive.

The penalty for a breach here is raised to a possible 5 years. It may sound odd given all the other changes, but this is the one amendment I am concerned about. However, my concern is with the existing provision itself, rather than the increased penalty. Criminalising behaviour which simply is “offensive” is, to my mind, inconsistent with important principles of free speech. This is not only my concern- it was a concern that was shared by 3 members of the High Court of Australia in its decision in Monis v The Queen [2013] HCA 4, (2013) 249 CLR 92. That case involved the constitutional validity of s 471.12 and 3 members of the court would have held that it was invalid. Unfortunately (in my view) the other 3 members of the 6-member bench held that it was valid, and the rules governing such splits meant that the decision of the lower court in favour of validity was upheld. The matter has not come back to the court since that decision. (For my comments on and critique of the case, see a paper I have previously uploaded, at pp 26-30).

In my opinion the outcome of Monis ought to be revisited and the validity of the “offence” limb of s 471.12 should be reconsidered. For the moment, it remains part of federal law. Note that the offence can only be committed by use of a “postal or similar service”, which is defined in s 470.1 of the Criminal Code to broadly cover physical delivery of mail or parcels. So it does not seem to extend to emails or matter distributed in video or audio form over the internet.

C. Aggravated sentencing factor- hate

Other amendments to the Crimes Act 1914 (Cth), s 16A(2), add paragraph (mb), which means that a more serious penalty may be applied to a crime committed under that legislation, if

(i) the person’s conduct constituting the offence was motivated, whether wholly or in part, by hatred of another person (the target person) or a group of persons (the target group); and (ii) that hatred was because of the person’s belief that the target person or persons in the target group are distinguished by race, or national or ethnic origin.

As this amendment simply builds on existing offences, it does not of itself seem to have a significant impact on religious freedom. There could be an impact if one’s reason for hatred of persons of another race came from religious conviction. But for this provision to have effect, such hatred would have to have also lead to commission of an offence against the Crimes Act. In my view, where religiously motivated crime of this sort impacts on the “fundamental rights and freedoms” of other citizens (to quote art 18(3) of the ICCPR), such as leading to violence, it should be punished. There may be some minor offences under the Crimes Act where this provision might have unexpected consequences. But the impact of the paragraph is simply to allow a court to find that this is an “aggravating factor” where the behaviour was already unlawful. It does not, as I say, seem to have any major religious freedom implications for mainstream groups.

D. Prohibited hate groups 

Part 4 of the Act contains a number of provisions outlawing “hate groups”. The key issue, of course, is the definition of a “hate group”.

Perhaps surprisingly there is no clear definition of “hate group” provided in the amendments. Something becomes a hate group when it is designated as such under a regulation approved by the Governor-General (s 114A.4) on advice from the relevant Minister (s 114A.4(1)), who must themselves receive advice from the Director-General of ASIO (s 114A.5). When making a recommendation, the Minister must be satisfied that :

(a) the organisation: (i) has engaged in, prepared or planned to engage in, or assisted the engagement in, conduct constituting a hate crime; or 
(ii) has advocated (whether or not in Australia) engaging in conduct constituting a hate crime, other than an offence 10 against section 80.2A, 80.2B, 80.2BC or 80.2BE (advocacy offences); and 
(b) specifying the organisation as a prohibited hate group is reasonably necessary to protect the Australian community or part of the Australian community against harm of any one or more of the kinds referred to in paragraph 114A.1(1)(a).

What is a “hate crime“? This is defined in s 114A.3. There are three different versions, involving issues around urging violence, promoting hatred, or causing harm. A key point to note, however, is that the versions of “hate crime” refer to behaviour motivated by race or ethnic origin. Despite some suggestions made at earlier stages of the debate, the concept has not been extended to hate based on other discrimination characteristics such as sex, marital status, or gender identity. Most mainstream religions in Australia do not seek to incite hate against others on racial grounds. So most religious groups will not be caught by these provisions. The clear target of these laws are neo-Nazi groups and extremist Islamic groups, which do attack and incite hatred against others on racial grounds.

E. Aggravated grooming offences

Part 5 of the amendments make it unlawful to “groom” young people by urging violence and hatred on racial and ethnic ground. The key offence provision is s 80.2DB. Again, most mainstream religious groups would clearly not fall foul of this law.

F. Hate symbols

Part 6 of the amendments strengthens existing provisions in relation to “hate symbols”, which usually would apply to such things as swastikas and ISIS flags. Under s 80.2H of the Criminal Code display of these symbols is unlawful in a range of circumstances where such display involves dissemination of ideas of superiority over or hatred of a person who is a member of the targeted group, because of the race, colour or national or ethnic origin of the targeted group; or could incite another person or a group of persons to offend, insult, humiliate or intimidate a person who is a member of the targeted group. There are defences spelled out in s 80.2H(9) where the symbol was used for a “religious, academic, educational, artistic, literary or scientific purpose” and in a way “not contrary to the public interest”. There is also a defence for news reporting.

Obviously these provisions will impact some extremist religious groups who use symbols to demean other or stir up hatred. But in my opinion they will not have a major impact on mainstream religious groups.

3. Impact of the laws on mainstream religious free speech

So, to conclude- will these new laws impact mainstream religious free speech? On the whole, I don’t think so. Most religious groups do not incite hate against folk from specific racial groups. In Christianity, for example, the New Testament makes it clear that God accepts people from every nationality or tongue, and there is no longer any ethnic aspect to faith- see for example, Acts 10:34-35, Galatians 3:28, Revelation 7:9. Where there are religious groups that incite hatred or violence against others due to their racial identity, these laws will indeed penalise such actions. I think that is appropriate.

There are some reasons for concern in laws on “hate speech” generally. In particular, it would be a bad idea to extend prohibitions on speech more broadly beyond incitement to violence or hate, into areas where what is caused is merely “offence” or insult. But for the moment these laws generally seem wisely limited to respond to the dangers facing members of the community following the Bondi incident.