The New South Wales Council for Civil Liberties (NSWCCL) urges parliamentarians to reject the creation of proposed hate organisation powers in the Combatting Antisemitism, Hate and Extremism Bill. This Bill represents an unprecedented extension of executive power and as such has serious potential for misuse. By its broad and vague definitions, concentration of power and lack of procedural fairness the Bill creates a real risk that the powers could be used to inappropriately target groups who work against the political interests of Government, such as protestors or opposing political parties.

The proposed laws represent a very significant risk to freedom of political communication, free speech, and freedom of association. Further, it is fundamental to the rule of law that the law is accessible, intelligible, clear, and predictable. The proposals in the Bill do not meet this basic principle.

If passed, these laws could see a group designated as a hate group, by the actions of one person who happens to be a member of a group (or associated with), even if that person was not actually convicted of a hate crime, or they committed an action that was legal at the time it was committed. This is entirely too vague for the seriousness of the penalties.

There are numerous definitional concerns raised by legal and constitutional experts that have not been sufficiently addressed. For example, someone who encourages another to join a protest could be caught by the definition of ‘recruit’ and imprisoned for up to 10 years. Another example of concern is the vague notion of who is considered a ‘member’ of a designated group, which includes ‘taken steps’ to become a member. Would this, for example, include someone who has joined a mailing list of the group? Under the Bill, the maximum penalty for the offence of being a member of a prohibited hate group is 7 years imprisonment. 

Of particular concern is that the Bill does not require the Minister to observe any requirements of procedural fairness. This means that any organisation that is designated as a ‘hate group’ would have no legal avenues to challenge that designation. 

It is highly likely that this Bill is not constitutionally valid and will be subject to a challenge. We again reiterate our calls to all parliamentarians to take pause before irreparably damaging our democratic and legal system. 

Comments attributable to Timothy Roberts, President NSWCCL 

“You do not arrest your way to social cohesion and attempting to do so only increases division in the community. 

“This legislation cuts across democratic freedoms and needs to be considered far more deeply than the current passage of time allows. The community must be allowed to continue to read the draft legislation so that we can be reassured that all concerns and reasonable consequences have been considered. 

“This is far too much power proposed to be concentrated in the hands of the executive government, especially without access to procedural fairness or judicial review. 

“While banning hate groups may sound appealing, the risk is that these laws facilitate, without check, the banning of groups our government hates, not actually reducing hate in our community.”