Concerns grow that antisemitism bill leaves dangerous loopholes

Representatives of the Jewish community have told a Senate committee the government’s draft antisemitism bill risks missing its mark unless key flaws are fixed. At the same time, support for the legislation is reportedly splintering ahead of a vote next week.

The public hearing into the federal government’s draft Combatting Antisemitism, Hate and Extremism Bill 2026 was chaired by Labor Senator Raf Ciccone, with questioning from Coalition senators Jonathon Duniam and Susan McDonald, as well as Liberal MP Philip Thompson. It formed part of a fast-tracked inquiry referred to the Senate following the antisemitic terrorist attack at Bondi Beach in December.

Appearing before the committee, Peter Wertheim, co-CEO of the Executive Council of Australian Jewry (ECAJ), said the organisation welcomed the introduction of the bill but remained concerned that longstanding weaknesses in hate speech legislation had again been left unresolved.

“There are a number of features of the new legislation which we have long called for and which we welcome,” Wertheim said. “But there are also significant shortcomings and drawbacks which we have pointed out with previous iterations, and we are concerned that those have been preserved to some extent in the current round.”

He warned that unless those defects were fixed now, the legislation would likely fail in practice.

“If they are not rectified, we’re going to be back here again in two years, or maybe even sooner, wondering what went wrong,” he said.

Wertheim told the committee ECAJ had been calling for stronger Commonwealth hate laws for more than a decade, well before the Bondi attack.

“The attack highlighted the urgency, but it did not create the problem,” he said. “The climate of hatred that preceded it has been building for years.”

A central concern raised by both ECAJ and the Office of Australia’s Special Envoy to Combat Antisemitism was the bill’s requirement that prosecutors prove intent for the new racial vilification offence, rather than allowing recklessness to suffice. Wertheim said this failed to reflect how contemporary hate speech operates.

“Bad actors are well aware of the law and how far they can go,” he said. “They push right up to the edge.”

He said much hate speech relied on insinuation, dog whistles and coded language designed to evade legal thresholds.

“There may be an indifference amounting to reckless indifference as to whether hatred is being promoted,” he said. “We think that should be captured.”

Annita Stucken, from the Office of the Special Envoy, supported that position, warning that increasing penalties would be ineffective if offences failed to capture real-world conduct.

“If the existing hate crime offences aren’t capturing the relevant conduct, then increasing penalties will be to no avail,” she said. “That is why the mental element matters.”

The strongest criticism was directed at the bill’s proposed exemption for quoting or referencing religious texts in religious teaching or discussion. Wertheim described the provision as fundamentally misconceived and called for its removal.

“It suggests that one can intentionally promote racial hatred within religious doctrine,” he said. “We do not believe that to be true.”

He said mainstream religious authorities across all faiths rejected interpretations that promoted racial hatred and warned the exemption created a dangerous loophole when combined with the high evidentiary bar required for prosecution.

“Where intention is proved beyond reasonable doubt, that conduct should be caught,” he said. “Religion is no excuse.”

Pressed by committee members on whether the exemption could be exploited, Wertheim referred to previous Federal Court proceedings involving Wissam Haddad making speeches that cited religious texts while making hostile generalisations about Jews.

“If identical circumstances arose again, there is a significant chance that the speaker would escape liability under this section,” he said. “That would likely deter prosecution altogether.”

Asked whether Jewish Australians would feel safer knowing such an exemption existed, Wertheim said the reaction within the community had been overwhelmingly negative.

“It has caused great consternation,” he said. “It’s seen as a wide loophole.”

Wertheim also warned that courts and prosecutors unfamiliar with antisemitic history might struggle to interpret slogans such as “globalise the intifada”.

“The Jewish community knows exactly what that means,” he said. “It refers to a campaign of suicide bombings against civilians.”

Without that context, he warned, the harm embedded in such language could be missed.

“A court may not understand that background,” he said. “That affects outcomes.”

On the bill’s proposed regime for listing prohibited hate groups, ECAJ expressed strong support, describing it as a long-overdue response to extremist organisations that fell short of terrorist designation thresholds.

“There are groups that promote hatred and exploit it but just miss out under existing laws,” Wertheim said. “This is a good step forward.”

Simone Abel, ECAJ’s head of legal, said the test for listing should be tightened.

“If an organisation promotes hatred on the basis of a protected attribute, that alone should be sufficient,” she said. “There should not need to be an additional assessment about the likelihood of a future hate crime.”

Abel also raised concerns about provisions that shifted focus away from the conduct itself and onto the feelings of a targeted group.

“That adds an extra prosecutorial burden,” she said. “It risks elevating fringe perspectives rather than focusing on the offence.”

The committee hearing took place amid growing political uncertainty over the bill’s passage.

Senior Liberal MPs told The Australian the party was hardening its position against the legislation, also citing unresolved concerns over the religious text exemption and fears the racial vilification offence was drafted too broadly, potentially chilling legitimate debate on issues such as immigration and visa policy.

Some MPs said the committee process had failed to clarify whether slogans like “from the river to the sea” would be captured by the laws.

Coalition frontbencher Michaelia Cash, a member of the committee, publicly warned the religious text exemption risked becoming “a shield for hate preachers” while leaving ordinary Australians exposed to prosecution for robust debate.

With Liberal support appearing unlikely, Labor is expected to rely on the Australian Greens to pass the legislation, a dynamic that may embolden calls to expand protections to other groups. Ciccone told The Australian that such matters remained under consideration.

“Look, these are details that we will consider as a committee,” he said. “I don’t want to pre-empt what we might put in our report.”

Addressing questions about race and religion, Wertheim reaffirmed that Jews are protected under Australian law as an ethno-cultural group rather than merely a religious one.

“The word race in anti-discrimination law does not mean biology,” he said. “It refers to a shared history, culture and identity, and that is well established in Australian and international jurisprudence.”

He said this protection applied regardless of religious observance, including converts to Judaism.

Despite their concerns, witnesses acknowledged the urgency driving the legislation and said they would prefer passage of the bill, even with flaws, over inaction.

“If it came down to that stark choice, we would rather see it passed than not passed,” Wertheim said. “But these issues are not new, and the time to fix them is now.”