CLA News / Countering Hatred and Extremism Without Compromising the Rule of Law by CLA President Steven Thiru
“Every one of us must resolve to stand up against the forces of hate, discrimination, and division. We must condemn antisemitism — unequivocally — whenever and wherever we encounter it. . . . And we must equally condemn all other forms of racism, prejudice and religious bigotry, including anti-Muslim hatred and violence against minority Christian communities. Let us never be silent in the face of discrimination, and never tolerant of intolerance. Let us speak out for human rights and the dignity of all. Let us never lose sight of each other’s humanity, and never let down our guard.”
António Guterres, United Nations Secretary-General (26 January 2024)
Bondi Beach Attack: Violence Against the Jewish Community and Antisemitism
“You can’t deny the parallel all these years later,” said Sabina Kleitman, daughter of Bondi attack victim Alex Kleytman, reflecting on the events of 14 December 2025. Kleytman was an 87-year-old Holocaust survivor who had emigrated from Ukraine to Australia.
On that evening, a large gathering of members of Sydney’s Jewish community was violently attacked. Australian authorities later identified the two perpetrators as a father and son. They opened fire on a crowd of hundreds who had assembled for a public celebration on the first night of the Jewish festival of Hanukkah, resulting in the deaths of 15 people and injuries to more than 40 others. The tragedy has been described as the deadliest terrorist attack in Australia, and the worst mass shooting since 1996.
Those killed ranged in age from 10 to 87. The disturbing circumstances surrounding the attack, marked by the deliberate targeting of a religious community celebration and the indiscriminate nature of the violence, profoundly shocked the nation and the wider international community.
According to the International Holocaust Remembrance Alliance (IHRA)’s working definition, “Antisemitism . . . may be expressed as hatred toward Jews. Rhetorical and physical manifestations of antisemitism are directed toward Jewish or non-Jewish individuals and/or their property, toward Jewish community institutions and religious facilities.”
This definition provides a widely accepted framework for understanding antisemitism. The United Nations document Taking Action to Combat Antisemitism: Follow-up Action Plan for Advancing the Implementation of the Recommendations of the UN Special Rapporteur on Freedom of Religion or Belief in his 2019 Report to the UN General Assembly (A/74/358) emphasises its practical application, recommending:
Governments should use the IHRA Working Definition of Antisemitism as a non-legally binding educational and training tool and ensure it is incorporated, together with relevant human rights standards-based guidance on protecting freedom of opinion and expression, into training and educational materials for all public officials, such as police, prosecutors, and judges, government employees, educators, and national human rights institutions, and integrated into diversity and inclusion programs.
Australia’s Response: Swift Legislative Action
In the aftermath of the Bondi beach terrorist attack, the Australian Government introduced the Combatting Antisemitism, Hate and Extremism (Criminal and Migration Laws) Act 2026. This legislation is expressly designed to target individuals and groups who seek to propagate hatred, radicalise young Australians, or disrupt social cohesion through extremist ideologies.
Key features of the Act include significant increases in penalties for hate crime offences, and the introduction of aggravated penalties for religious or ideological leaders who advocate or threaten violence, recognising the outsized influence such figures may exert in radicalising communities. The legislation also establishes a framework enabling organisations engaged in conduct amounting to hate crimes to be formally designated as prohibited hate groups, while expanding offences relating to prohibited hate symbols, thereby addressing the public display of imagery or iconography associated with extremist ideologies.
Human Rights Concerns and Proportionality
It is particularly noteworthy that the IHRA working definition clarifies that “criticism of Israel similar to that leveled against any other country cannot be regarded as antisemitic”, and that determinations concerning antisemitism must always be made with regard to “the overall context”. In effect, measures adopted to combat antisemitism must remain proportionate and carefully balanced against the fundamental right to freedom of speech and expression.
The United Nations Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism, Ben Saul, has expressed concerns over the proposed racial vilification offence. He stated that while criminalising racial hatred is acceptable in principle, the offence exceeds the limits established by Article 20(2) of the International Covenant on Civil and Political Rights (ICCPR), under which prohibitions are confined to advocacy that constitutes incitement to discrimination, hostility, or violence.
In his review of the Australian legislation, Saul states that its use of the term “promotes” in section 114A.2(2)(a) rather than “incites” also risks encompassing conduct that merely encourages or legitimises hatred, potentially capturing legitimate criticism of international law violations. Furthermore, relying on subjective fears of harassment or safety, rather than objective standards of discrimination, hostility, or violence, may unfairly criminalise speech that some members of a group perceive as threatening. According to Saul:
The emotive perceptions of a particular group, or members of a particular group, may not always provide a reasonable assessment of the existence of harassment, intimidation, violence, or fear for safety, particularly where disagreeable political criticisms are conflated with attacks on the group rather than the political causes with which they may closely identify.
Concerns were also raised regarding the provisions on prohibited hate groups. The power of the Federal Police Minister to designate organisations was criticised as “overbroad” and “disproportionate”. Groups could be listed for a single alleged incident without criminal conviction or procedural fairness, potentially curtailing fundamental freedoms such as association, expression, and religion.
The use of vague terms such as “advocates” and “praises” was noted as prone to arbitrary application and abuse, and the absence of procedural fairness requirements heightened the risk of unjustified restrictions. The Special Rapporteur further suggested that the decision to list groups would be better vested in a court rather than a minister.
Regarding hate symbols, the Special Rapporteur opposed reversing the burden of proof onto defendants, arguing that ordinary intent should suffice, given the seriousness of the offences. In addition, expanding liability to recklessness, or replacing the reasonable person test with a subjective assessment from the perspective of group members, would lead to subjectivity and uncertainty, and thereby infringe the legality principle under Article 15 of the ICCPR, “since an individual may be unaware of, or unable to foresee, how their conduct may be perceived by a particular group. What one group may subjectively perceive as hateful may not reasonably be so.”
Responding to Hatred and Extremism Without Sacrificing Principle
Moments of national trauma invariably prompt calls for swift and decisive governmental action. The horror of the Bondi beach attack has gravely shaken public confidence, wounded communities, and intensified demands that the State respond firmly and unequivocally to hatred and extremism. Yet history consistently reminds us that it is precisely in such moments — when grief is raw, public anxiety is acute, and political pressure is palpable — that adherence to the rule of law becomes most critical. The strength of a democracy is tested not in calm, but in crisis.
Legislative urgency must not eclipse constitutional discipline. Measures introduced in response to terrorism and hate must be effective; equally, they must also remain proportionate, rational, and consistent with fundamental rights. The legitimacy of a legal response is not measured solely by its severity, but by its fidelity to the rule of law, constitutional principles, and international human rights norms.
Measures taken in the fight against antisemitism and extremism must therefore uphold the very values that underpin a free and democratic society. The Commonwealth Charter affirms this fundamental responsibility, emphasising in Article IV the promotion of “tolerance, respect, understanding, moderation, and religious freedom”, and underscoring that “respect for the dignity of all human beings is critical to promoting peace and prosperity”.
By recognising and embracing the diversity of our multiple identities, governments, institutions, and communities can confront hatred and extremism firmly while preserving the freedoms and principles that they seek to erode. To compromise those core values for the promise of security would diminish the very ideals we seek to defend.
We extend our profound sympathy to the families of the victims, to those injured, and to all who continue to feel the impact of this horrific attack. We stand resolutely alongside all governments, communities, organisations, individuals, and other actors committed to ensuring that justice is pursued with integrity, that remembrance is honoured with dignity, and that such tragedies are neither forgotten nor repeated.
Steven Thiru
President
Commonwealth Lawyers Association
26 February 2026
Steven Thiru records his appreciation to Jaishanker Sadananda and Chin Oy Sim for their assistance in preparing this article.
