Senator Matt Canavan@mattjcan
I have made a submission to the Parliamentary inquiry on Labor's unconstitutional and undemocratic hate speech laws.
My submission focuses on how the Parliament keeps ignoring your right to speak on political matters, which is enshrined in our Constitution.
Enough is enough. We must stand up against politicians passing laws to silence the people just because they don't like what the people have to say.
Our Constitution establishes a representative democracy and as Sir Samuel Griffith said that means that "the actual government of the State is conducted by officers who enjoy the confidence of the people."
We cannot have confidence in the government if we are banned from expressing no confidence.
Normally, I would wait for the Committee to publish my submission online. But given the ridiculously short Committee process - Labor has provided less than a week for it - I have published my submission below.
Keep up the fight against these bad laws. We are winning!
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# Submission to the Review of the Exposure Draft Legislation: Combatting Antisemitism, Hate and Extremism Bill 2026
## 15 January 2026
## Senator Matthew Canavan
If the Combatting Antisemitism, Hate and Extremism Bill 2026 (hereafter 'the Bill') is passed it would be the greatest limitation on free speech and political rights since the Menzies Government sought to ban the Australian Communist Party in the 1950s. In that historical case, the Government sought to ban a specific political party that was deemed hostile to Australia's political freedoms and Commonwealth. This Bill would provide the Government with broad powers to ban all types of political units and entities and prosecute people for things they say.
My submission does not focus on all the flaws of this approach. I just wish to outline why I conclude that the proposed laws are unconstitutional. At the very least, the Parliament's continuing disregard for the High Court's finding of an implied right of political communication must be called out. My submission relates to Schedule 1 of the Bill.
During the past 30 years, the High Court has ruled that Australians have an implied right to political communication enshrined in our Constitution. This does not provide Australians with a personal right to say whatever they like but it does impose restrictions on how, and to what extent, the Parliament can regulate the political speech of Australians.
As Justice McHugh described in *Lange v Australian Broadcasting Corporation (1997)*:
> The freedom protected by the Constitution is not, however, a freedom to communicate. It is a freedom from laws that effectively prevent members of the Australian community from communicating with each other about political and government matters relevant to the system of representative and responsible government provided for by the Constitution. Unlike the Constitution of the United States, our Constitution does not create rights of communication. It gives immunity from the operation of laws that inhibit a right or privilege to communicate political and government matters.
This right emanates from sections 7 and 24 of the Australian Constitution which requires members of the Senate and the House of Representatives to be "directly chosen by the people." In commenting on the potential for an Australian Federation in the 1890s, Sir Samuel Griffith said that the effect of responsible government "is that the actual government of the State is conducted by officers who enjoy the confidence of the people". [^1]
As the High Court Justices stated in *Lange*:
> Freedom of communication on matters of government and politics is an indispensable incident of that system of representative government which the Constitution creates by directing that the members of the House of Representatives and the Senate shall be "directly chosen by the people" of the Commonwealth and the States, respectively.
The *Lange* case established a two-part test to determine whether a law contravened the implied right of political communication:
1. Does the legislative provision burden communication on governmental or political matters?
2. If the provision imposes such a burden, it will only be valid if it is “reasonably appropriate and adapted to serve a legitimate end” in a manner that is consistent with the maintenance of the constitutionally prescribed system of representative and responsible government.
The first test is manifestly met in the Bill. The Bill provides broad powers to a Minister to designate organisations as "hate groups" (Part 5.3B). These powers can be used by the Minister even if he or she does not provide procedural fairness to the prohibited group (s 114A.4(5)). The powers are retrospective in that conduct prior to the passing of the Bill can count towards the designation of an entity as a hate group (s 114A.3(2)(a)). The powers do not prevent the Minister from banning a group that may seek to register as a political party and stand candidates for an election.
In addition, the Bill establishes new criminal offences of "racial vilification". These provisions subject people to penalties of up to five years' imprisonment if they promote hatred based on someone's race, colour or national or ethnic origin in a way that causes, or could cause, intimidation, among other things (s 80.2BF). Even government officials cannot say what types of speech would meet this test. This means that the uncertainty of potentially facing five years in jail would cause some people to check what they say and limit their political communication.
The second test under *Lange* has been interpreted in different ways in different decisions. In *McCloy v New South Wales (2015)* the High Court found that to meet the second test a law must be:
- suitable: does the law have a rational connection to the legitimate purpose?
- necessary: are there any other "obvious" or "compelling" measures that are a less restrictive means of achieving the legitimate purpose?
- balanced: are the benefits of achieving the legitimate purpose higher than the costs of the restrictions on freedom?
In *Tajjour v New South Wales (2014)*, Justice Gageler took a different approach and found that the second test creates a "spectrum" such that the scrutiny placed on the restrictions is higher to the greater extent it risks a system of representative and responsible government.
Regardless of the test used, however, the Government has made no attempt to explain how its proposed restrictions satisfy the rulings of the High Court. The Government has not explained whether it has assessed other measures that could be a less restrictive way of tackling the risks of hateful conduct. They have not shown how they have balanced the perceived benefits of their laws against the costs of restricting freedom. And, perhaps most egregiously, under Justice Gageler's test, they have not sought to increase the scrutiny of measures that impose greater restrictions on freedom. Given that these laws provide the Government with broad powers to ban political parties, associations and all types of speech they deem as hateful, it is especially egregious that the Government has not provided a detailed explanation of how its draconian laws are a proportionate, balanced and necessary response to the risks of hateful speech.
The only thing the Government has done is to rely on the *existing* defences in section 80 of the Criminal Code. There does not seem to have been any reassessment of whether these defences are appropriate for these new laws.
Keep in mind that section 80 is primarily focused on dealing with allegations of treason. The Government is seeking to shoehorn the new provisions relating to hate speech into this section. Perhaps because of the seriousness of a treason charge, the defences provided to protect political communication are not as broad as the Government makes out in its Explanatory Memorandum.[^2]
For example, there is no broad defence provided for political communication in section 80.3 of the *Criminal Code*. Instead, the defence is limited to areas where a defendant is acting in "good faith" through the political process. As a participant in the political process, I can attest I have been subject to actions that are not in "good faith". Nowhere in our law or practice has there been a legal obligation for political actors to act in good faith. Indeed, the adversarial nature of our political process means that such a restriction could easily reduce scrutiny of those in positions of power and authority and hence be inconsistent with our form of representative democracy.
Perhaps it could be maintained that when a charge of treason is brought against someone, the accused should be limited to defences that are restricted to "good faith" actions. It is much harder to mount the case that someone accused of spreading "hatred" (which is a vague term) should not have a broader defence applied to their political acts.
However, even if such a defence is provided, it cannot be that the Parliament can meet the High Court's repeated and insistent findings on the right to political communication by simply lazily including a few lines saying that political communication is exempt. In practice, the threat of prosecution would be sufficient to restrict political communication. It is a small mercy for someone to have to spend hundreds of thousands of dollars defending a charge of racial hatred if they eventually prevail by relying on a defence of "good faith" political communication. In that event, the punishment is the process itself. And, the threat of such punishment would restrict political communication. That gives rise to the question of what is the Parliament and Government doing to ensure that such a "chilling" effect is not caused by legislating even for a legitimate purpose?
It cannot be that just because the Parliament says that something is protected it is therefore taken that it has been protected. The idea that the Parliament can make something so by just saying it is so is absurd. It is reminiscent of Justice Fullagar's comments in striking down the attempt to ban the Communist Party in the 1950s:
> A power to make laws with respect to lighthouses does not authorize the making of a law with respect to anything which is, in the opinion of the law-maker, a lighthouse.
The test must be whether political communication rights are protected in fact, not just in law.
Moreover, while these defences are available for the new racial vilification provisions in section 80, the Government does not seem to have provided any similar defences in the provisions that prohibit hate groups. This oversight seems to be more egregious given the wide powers that this section provides to a Minister to ban all types of associations, including for conduct that occurred before this Bill passed. The Bill also does not require the Minister to follow procedural fairness in designating a hate group.
Perhaps this is an oversight given that the Bill has been drafted in such a rushed fashion. But the failure to even attempt to provide an exception for political communication falls so foul of High Court precedents that it is an open and shut case that these parts of the Bill are unconstitutional.
This Bill unfortunately fits into a pattern of conduct by the Parliament where just "lip service" at best is paid to the fundamental rights afforded to Australians under their Constitution. In recent years Governments have sought to regulate "misinformation", restrict access to social media and now outlaw hateful speech with just a cursory consideration of how these draconian restrictions limit the right of an Australian to have their say.
Worse, many of these restrictions are clearly about protecting the political class from criticism as their reputation falls due to massive failures in a wide swathe of policy areas on energy, housing, industry, health and education. The restrictions proposed in this Bill are a fundamental violation of what it means to live under a representative and responsible government.
A representative government must enjoy the confidence of the people, which cannot occur if people are not free to express a lack of confidence. A responsible government must never be afraid to hear critical views of the people, even if they are expressed in a hateful way.
The Parliament should reject these laws because they are unconstitutional and they are unconstitutional because they are undemocratic.
[^1]: Sir Samuel Griffith, *Notes on Australian Federation: Its Nature and Probable Effects*, Government Printer, Brisbane,1896, p. 17.
[^2]: The Government says in its Explanatory Memorandum that:
> The defence ensures that the offences do not have a greater deterrent effect on communication than is necessary for its purpose and does not unduly impinge on Australians’ ability to engage freely in political communication.
But its position is based purely on assertion.
Rowland, M. 2026, *Explanatory Memorandum Antisemitism, Hate and Extremism Bill 2026*, The Parliament of the Commonwealth of Australia, p. 141.
