A political fix in hate-crime and terror legislation shows the government isn’t leading
After bowing to the opposition on mandatory minimum sentences, the Australian government needs to reestablish its leadership in national security.
Australia’s new anti hate crime amendment includes mandatory minimum sentencing for terrorism and certain hate crimes. The Labor government had resisted implementing mandatory minimums, but the Liberal-National opposition called for it.
Parliament passed the bill for the law, the Criminal Code Amendment (Hate Crimes) Bill 2024, on 6 February.
Introduced to the House in September, the law commendably extends protection against hate crimes to characteristics including gender, sexual orientation, sexual identity and disability. It also creates a new hate crime offence for damaging (or threatening to damage) property and motor vehicles.
As recently as 20 January, Prime Minister Anthony Albanese, opposing mandatory minimum sentencing in the bill, told the Australian Broadcasting Corporation that such a measure would lead to ‘counterproductive issues’.
The bill as passed, however, includes mandatory minimum sentences for:
—Committing a terrorist act or being a member of a terrorist organisation (six years);
—Financing terrorism (three years);
—Publicly displaying Nazi or terrorist organisation symbols or performing a Nazi salute (one year); and
—Advocating force or violence through damage to property (one year).
The effectiveness of mandatory minimum sentences is debated. Particularly within the legal community, there are concerns that they pose risks to the independence of the judicial system. Their inclusion in the bill is best explained as a government attempt to avoid amplifying the public national security discussion.
The opposition called for the measures six weeks before the bill was passed. It criticised the government’s handling of a range of national security issues, including the response to an arson attack on Melbourne’s Adass Israel Synagogue in December 2024 and, more recently, the prime minister not being briefed on an explosive-laden caravan in Dural, Sydney.
Mounting political pressure appears to be forcing the government’s hand. Albanese reportedly overruled Attorney-General Mark Dreyfus to support mandatory minimum sentencing. This isn’t the first time Albanese has changed his mind on criminal and security policy. He has done so on terrorism and sex crimes against children, so this latest decision doesn’t set a new precedent.
After the addition of mandatory minimum sentencing, Home Affairs Minister Tony Burke quickly shepherded the bill through Parliament, and there was reportedly little need for negotiation with the crossbench in the Senate.
Albanese’s apparent change of heart is a defensive move, protecting the government from further criticism. But the government’s role is to lead on national security issues—something it has struggled to do since the High Court’s 2023 decision in the case NZYQ v Minister for Immigration to release non-citizen criminal offenders held in indefinite detention.
National security demands greater attention. It is rarely the most important issue to the electorate, but poor national security records have bedevilled past governments.
The attorney-general and home affairs minister each have overlapping national security responsibilities, reflecting the unresolved departmental divide of policy and operational responsibilities. The government needs stronger and clearer messaging and policy, driven by a dedicated spokesperson.
ASPI’s Justin Bassi and John Coyne have argued that the muddled national security framework is diminishing departmental capacities to respond to counterterrorism and related issues. Similarly, the unclear division of responsibility appears to limit ministerial responsiveness, opening space for the parliamentary opposition to cut through.
Another issue is the overburdening of ministers. For example, Burke is also minister for immigration and multicultural affairs, cyber security and the arts. Minister for Foreign Affairs Penny Wong is also leader in the Senate. Deputy Prime Minister Richard Marles is also minister for defence. All three are highly capable, but they have been forced to juggle competing priorities. At this moment national security needs unwavering focus.
To reclaim leadership on national security, the government should develop effective policies that can be announced and implemented in the short term. A national hate crime register, for example, would provide a central data source for law enforcement, policymakers and researchers. Better understanding of the problem will allow us to better combat it.
The government should also provide more resources for law enforcement and intelligence to establish a national unit dedicated to combating hate crimes. This could fall within the Australian Criminal Intelligence Commission or a joint taskforce. Special operations currently address hate crimes, but a dedicated unit would provide permanent attention to this challenge.
Incumbent governments must assert themselves as national security leaders. Instead of conceding to implementing doubtful measures, the government should refocus its national security posture to develop effective policy.