The Autoimmune State
When Fear Holds the Pen
There’s a corner in Adelaide where, for years, a small clutch of people gathered on Wednesdays with placards about Palestine. It was not a large gathering. It was not, by any measure that matters, dangerous. And then, one Wednesday in May, they didn’t come. Not because anyone charged them with anything. Not because a court examined what they had said or done and found it wanting.
One barrister who has watched Australian law for two decades reported that the Adelaide-based Boycott, Divestment and Sanctions group had terminated its weekly action out of fear it would be proscribed as a hate group after a secret investigation, being unable to continue its work for fear of lengthy jail sentences. By this time, the law that frightened them into silence had been in force for four months – passed on 20 January 2026, in a Parliament recalled specifically because two gunmen had killed fifteen people gathered for Hanukkah at Bondi Beach the previous December.
No hearing preceded the group’s silence. No evidence was tested. A corner that had held a small, stubborn ritual of dissent for years simply emptied itself, on the strength of a fear the law’s architecture had produced; whether by design or by accident hardly matters now.
This is the texture of what Australia has done to itself in the name of protecting its Jewish citizens from another Bondi. Not the six-thousand-word statute, not the parliamentary theatre, and not even the fifteen-year sentences — but this: a corner, emptied, four months into the law’s life, before it had touched anyone at all.
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The attack that produced all of this was real. Its horror hardly needs embellishing. The nation’s shock at that atrocity was not manufactured for political effect — it was earned, and the government’s obligation to respond to it was reasonable. What followed was the Combatting Antisemitism, Hate and Extremism Act, and buried inside it, beneath the parts that made headlines, sits a mechanism worth sitting with slowly, because it does something a liberal democracy is not supposed to do without flinching: it allows an organisation to be legally destroyed before it has been permitted to say a word in its own defence.
The mechanism is not, in fairness, aslowly becauser acting alone — it has more moving parts than that. A minister must be satisfied on reasonable grounds that a group has engaged in conduct constituting a hate crime; the process runs through the Attorney-General, and the powers are subject to review every two years by the Parliamentary Joint Committee on Intelligence and Security. The Attorney-General herself pointed to exactly this architecture when defending the bill — oversight not only by the Parliament in terms of disallowance, but also by the Parliamentary Joint Committee, and judicial review available as well.
All of which is true, but none of which touches the actual wound. Every one of those safeguards operates after the ban has already bitten — after the organisation has already been criminalised, after its members already face prison, and after, as Adelaide has already shown, the group has quietly imprisoned itself out of existence rather than wait to fight out. A right of appeal against a decision that has already destroyed you is not due process. It is condolences.
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What counts as the crime that triggers all this is where the law’s real character shows itself, and it shows itself most starkly in a piece of television that ought to be replayed in law schools for a generation. Asked directly whether a group could be banned if it accuses Israel of genocide or apartheid and Jewish Australians as a result feel intimidated, the Attorney-General answered, ‘That is correct.’ Pressed a second time, in slightly different words, on whether Australians condemning Israel or saying it shouldn’t exist could be banned if it left Jewish Australians feeling harassed or intimidated, ‘That’s correct’ was the same answer. If those criteria are satisfied, then that is the case.
Here the law’s own defenders offer a rejoinder worth taking seriously. The peak Jewish communal body’s explainer on the act insists that merely advocating political views without promoting racism is not an offence and that the law only allows the government to ban groups that engage in offensive and hateful advocacy – not the government holding unpopular opinions. That’s a real distinction – not a principle – and it deserves to stand rather than be flattened. The trouble is that nothing in the attorney general’s own answers tells us where the line between the two actually falls. Accusing a state of genocide is, on its face, a political claim about the conduct of a government, not a claim about a people’s inherent character. Whether it tips into “promoting racism” seems to depend entirely, on the Attorney-General’s own account, on how a targeted community receives it – which returns us to the same unresolved question. Rather than the attorney-general’s perspective, there is a coherent boundary here that a court would find and hold. Nobody has yet been made to find it, because nobody has yet had the chance to argue for it in front of a judge before the damage was done.
The test used to filter this is nominally an objective one: the conduct must cause a reasonable person from the targeted racial group to be intimidated, fear harassment or violence, or fear for their safety — a formula with real pedigree in Australian discrimination law, where the fact that someone feels offended is famously not, by itself, enough. But the reasonable person here is not a reasonable Australian drawn to this, wherever in particular. It is a reasonable member of the targeted group, and on the specific, scalded terrain of Gaza, reasonable members of opposing communities do not converge on a shared reading of the same words. They diverge, sharply, according to which side of the wound they stand on.
Once you notice this, the law’s supposed neutrality starts to look more like a mirror held at an angle. If speech accusing a state of genocide can seed a hate crime because it frightens one community, then rhetoric describing an entire population as animals, or the substantial minority of Israelis recorded believing there are no innocent people in Gaza, ought by the identical logic to seed one too, aimed the other way. Nobody expects the law to be applied like that, and the fact that nobody expects it is telling. A rule whose real-world operation depends on which community’s discomfort happens to be politically audible in a given month has stopped being a rule in any meaningful sense. It behaves like weather instead — arriving according to its own pressure systems, and owing no one an account of which way it blows.
Even the wiring underneath the definition is patched together rather than engineered. The provision borrows from state offences that do not agree with each other: in the listed offences from Queensland, South Australia and the ACT, incitement to racial hatred is tied to threatening physical harm, whereas in New South Wales, Victoria and Western Australia, no threat of harm is required — and Tasmania and the Northern Territory simply have no relevant law listed at all. Anne Twomey, who has spent a career reading constitutions the way sailors read tides, called the resulting landscape a “messy circumstance” produced by “different systems across the country. Identical words, spoken at a protest, could found a federal hate-crime proceeding in Sydney and mean nothing at all across the border in Coolangatta. A statute wielding fifteen-year sentences should not have a postcode lottery sitting inside its engine room.
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None of this is new, and that’s the part that should trouble a reader more than the specifics of any one clause. Reach far enough back and you find the same sequence playing out with almost ritual fidelity. A bomb goes off — Auguste Vaillant’s, thrown into the French Chamber of Deputies in December 1893, hurting several deputies but killing no one — and within days the state has its answer ready: the arrest of Vaillant provided a “very convenient pretext” for passing the first law, drafted and ready in less than two days, laws that would go on to restrict freedom of speech, weaken the presumption of innocence, and normalise preventive arrest.
In Belfast a few decades later, an act billed as emergency-only was renewed annually, then for five years, then made permanent in 1933, and stayed on the books for fifty-one years — used, almost without exception, against one community and not the other.
In Washington, a century after Vaillant, a similar sequence unfolded in the dark rather than in the light of parliament: a provision written to permit targeted requests for records was quietly stretched, through a secret interpretation, into the bulk collection of the phone records of virtually every person in the United States, a programme that ran for the better part of a decade before anyone outside a small circle of lawyers and judges knew it existed. It took a leak, a global scandal, and years of litigation before Congress finally curtailed it.
The pattern these three otherwise unconnected stories share has nothing to do with whether emergency measures are justified in the moment. It lies in what happens after: none of them expired on their own. A study of counter-terrorism law across the G20 states, two decades after the attacks that triggered the modern wave of it, found that even today, the vast majority of anti-terrorism laws remain in force and that many originally temporary encroachments on privacy have simply been normalised by being written into permanent law. Laws built in the smoke of an atrocity tend not to fade when the smoke clears and something has to reach in and pull them out, deliberately, against the current — and that almost never happens quickly and rarely happens at all.
Nothing about the Australian Act suggests it has been built any differently. There is no sunset clause. There is a review every two years of a power that, by the time anyone reviews it, will already have done its work — as Adelaide has already shown it can do within a single season, let alone within two years.
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Underneath the specific mess of Gaza, Bondi, and Canberra sits a much older and plainer question, one that predates every party to this argument and will outlive all of them: does guilt require testimony before it earns punishment? English law answered that question quickly and in its own idiom eight centuries ago in the muddy field at Runnymede, where Magna Carta first set down in writing the idea that no one, no matter how powerful, is above the law – an idea the jurist Henry de Bracton would later sharpen into a sentence that has outlived every king it was aimed at: The law makes the king, and therefore the king must be subject to the law.
Whether the same instinct was reached by other routes in other tongues in the courts and councils of civilisations that never heard of Runnymede is a question I am not equipped to answer. But the instinct itself — that no authority, however urgent its purpose, gets to declare guilt without first being made to prove it — does not belong to England. England simply happened to write it down early and loudly enough that the English-speaking world has been quoting it ever since.
Strip the Act back to its studs, and that’s the single beam this whole structure leans on and does not have: a determination that a group has, in effect, committed a crime, made by an executive process that never once required the accused to be heard, resting on conduct that may have been entirely lawful at the moment it occurred, its safeguards arriving only once the sentence has already been carried out in the form of an empty street corner in Adelaide.
Every generation tells itself its own emergency is the one that finally justifies the shortcut. The barons at Runnymede did not think they were writing for the twenty-first century. The Third Republic did not imagine anyone would still be citing its villainous laws as a cautionary tale a hundred and thirty years later. Nobody voting to renew Belfast’s special powers in 1928 believed they were laying track for five more decades of it. The comfort every one of these parliaments took in its own moment of clarity is the same comfort this one is taking now—and history’s only real verdict on that comfort is that it is never, in the end, warranted.
The corner in Adelaide has been empty since May. Whether it stays empty or whether some court somewhere eventually finds the line the law’s defenders insist is there is not yet known and perhaps not yet knowable. Nobody has been charged with anything. Nobody needs to be.