Freedom of speech and assembly is being curbed by legislation designed to address hate speech. What does this mean for the boycott, divestment and sanctions (BDS) movement?
Legislation being passed supposedly to address hate speech and related topics such as hate groups and their conduct is giving rise to fears that freedom of speech, freedom of assembly and other human rights will be affected.
An example is NSW legislation enacted both before and following the December 2025 Bondi Beach mass shooting in Sydney. In October 2025, Supreme Court Justice Mitchelmore ruled that a section of the Law Enforcement (Powers and Responsibilities) Act was invalid because it impermissibly burdened the implied freedom of communication on government and political matters (Lees v NSW [2025] NSWSC 1209). The law gave police powers to direct protesters to move on or desist if they were near a place of worship, even if there was no basis to believe worshippers felt obstructed, harassed or fearful. The challenge was brought by the Palestine Action Group and was seen as a win for the pro-Palestine movement.
In the wake of the Bondi Beach shooting, the NSW government enacted further legislation that amended existing laws addressing terrorism and the conduct of public assemblies. The amending laws restricted protests. These were challenged in the Court of Appeal by certain protest groups, including the Palestine Action Group. The Court struck down the laws as “impermissibly burdening” the implied right to freedom of political communication (Jarrett v NSW [2026] NSWCA 62).
The laws in question had given police the power to make a declaration preventing the authorisation of public assemblies in certain areas. NSW argued that these laws had a confined effect and had the “legitimate purpose” of “protecting the community and enhancing social cohesion” in response to Bondi. The laws were said to be “reasonably appropriate and adapted” to achieving that end. The Court rejected the State’s submission, emphasising the importance of public assemblies to the maintenance of the constitutionally prescribed system of representative and responsible government.
So we turn from NSW to the Commonwealth. The Combatting Antisemitism, Hate and Extremism (Criminal and Migration Laws) Act 2026 was passed on 21 January 2026 and was said to be in response to the Bondi Beach massacre. The Act is not easy to get one’s head around. There are multiple amendments to already existing laws concerning a wide range of criminal behaviour that address all manner of protesting.
Take the provisions relate to “Combatting Antisemitism, Hate and Extremism”.
- Part 5.3 B is titled ‘Prohibited hate groups’. The objects of the Part are to protect the Australian community or part (thereof) against social, economic, psychological and physical harm by prohibiting organisations that engage in, prepare or plan to engage in, or assist the engagement in, or advocate engaging in, conduct constituting a hate crime.
- A member of such an organisation includes a person who is an informal member of the organisation or has taken steps to become such.
- A hate crime is defined as conduct that involves publicly inciting hatred of another person or group of persons because of the race or national or ethnic origin of the person or “that 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”.
- The Act provides for “Regulations specifying prohibited hate groups” and provides for the relevant Minister to be satisfied on reasonable grounds that designating the organisation as a prohibited hate group is reasonably necessary to protect the Australian community or part thereof against any such harm.
- Division 114B addresses offences and includes an offence that a person intentionally becomes a member of an organisation that is a prohibited hate group, the penalty for which might be imprisonment for up to seven years.
- Other offences under the Division include providing support to a prohibited hate group.
- Penalties across the board are substantially increased.
Because these provisions are open-ended and susceptible to disputation they are likely to result in arguments as to the extent of their applicability.
What is the impact of this amending legislation? There is no doubt it has resulted in many supporters of Palestine limiting their protest activities. I am aware that the Adelaide-based Boycott, Divestment and Sanctions (BDS) group – one arm of the International BDS movement – has terminated its weekly action out of fear the group would be proscribed as a hate group after a secret investigation and be unable to meet and continue its work for fear of lengthy gaol sentences.
Such impact is the result of publicity given to the amending legislation and raises the question of whether the legislation is infringing on the constitutional right to freedom of speech.
The BDS group is particularly interesting. The threat has been advanced that BDS groups may, or are likely, to be specified as a prohibited hate group. This is ironic given the 19 July 2024 ICJ Advisory Opinion and its subsequent adoption by the UN General Assembly resolution of 18 September 2024. Fifty days after the delivery of the Advisory Opinion, UN experts, while summarising the obligations of member States included item 10 thus:
Rescind legislation and policies that criminalise and penalise advocacy in support of Palestinian rights to self-determination and non-violent opposition to Israel’s occupation and apartheid, including support for the boycott, divestment and sanctions (BDS) movement.
It is clear that Australia, as with all States members of the UN, have an obligation to support boycotting, divestment and sanctions of the State of Israel until it ends the illegal occupation of Palestine. And yet our government might proscribe the group as a hate group.
Will we see a challenge to the Commonwealth Act? My concern is that we won’t, at least not immediately, if for no other reason than that groups such as BDS do not have the funds to do so. In the meantime the legislation is having its ill-desired effect.
Paul Heywood-Smith is an Adelaide SC of some 20 years. He was the initial chairperson of the Australian Friends of Palestine Association, an incorporated association registered in South Australia in 2004. He is the author of The Case for Palestine, The Perspective of an Australian Observer published by Wakefield Press in 2014.