Australia’s High Court has begun hearing a major constitutional challenge to the Albanese government’s new prohibited hate-group laws, with White Australia leader Thomas Sewell appearing in Canberra as his organisation seeks to overturn the federal ban that effectively prevents it from operating.
The two-day case opened on Tuesday before a packed Courtroom One, with observers filling the public gallery and overflow rooms while an unusually visible police presence surrounded the High Court building.
White Australia and Sewell argue that Part 5.3B of the Commonwealth Criminal Code is constitutionally invalid because Parliament lacks sufficient legislative power for the scheme, because it impermissibly burdens the implied freedom of political communication and because it gives the executive government powers that conflict with the constitutional separation of judicial power.
The Commonwealth rejects those arguments and says the legislation is a lawful mechanism for protecting Australians from organisations involved in serious hate-related conduct and politically motivated harm.
The outcome could become an important precedent for the limits of Commonwealth power over political organisations, but the legal question is more precise than whether a federal government may simply outlaw any political party whose views it dislikes.
Thomas Sewell appears as landmark hearing begins
Sewell and White Australia supporters gathered outside the High Court before proceedings began, while the organisation’s legal team prepared to challenge the laws that resulted in White Australia being declared a prohibited hate group in May.
The courtroom attracted an unusually large audience for a High Court constitutional case.
White Australia was represented by barristers Peter King and Shahed Sharify, while Brendan Lim led the Commonwealth’s case.
The plaintiffs opened by attacking the breadth of the legislation and the lack of what they described as adequate legal guardrails around the government’s power to prohibit an organisation.
King told the court that even where an organisation or its members held views regarded as offensive, unpopular or controversial, that did not by itself permit the Commonwealth to extinguish their ability to organise politically.
The plaintiffs described the complete prohibition of an organisation as comparable with using a “sledgehammer on a nut”.
Sharify argued that the law went too far, pointing to features the plaintiffs say distinguish the regime from narrower forms of criminal regulation.
The challenge focuses not merely on restrictions against an individual piece of speech, but on the consequences of prohibiting an entire organisation.
What happens when a group is prohibited?
Parliament created the prohibited hate-group framework in January following the Bondi Beach terrorist attack and a wider national debate about antisemitism, extremism and politically motivated violence.
White Australia became the second organisation listed under the new system when its prohibition took effect on 16 May.
Hizb ut-Tahrir had been listed in March.
Once a group is prohibited, Division 114B activates a series of criminal offences dealing with the organisation.
They include intentionally directing its activities, knowingly remaining a member, recruiting people into it, participating in specified training activities, providing or receiving funds and supplying certain forms of support.
The penalties are serious.
Some directing, recruiting, funding and support offences can attract maximum sentences of up to 15 years’ imprisonment, while knowingly remaining a member of a listed organisation can carry up to seven years.
But prohibition does not mean every person who has ever associated with a group automatically commits an offence.
The membership provision requires a person to intentionally remain a member while knowing the organisation has been prohibited.
The law also provides an exception where that person takes all reasonable steps to cease membership as soon as practicable after becoming aware of the listing.
Government cannot simply ban a party because it disagrees with it
The broadest political description of the case is that it will decide whether governments can ban political parties they dislike.
That formulation captures the plaintiffs’ fear about where the power could ultimately lead, but it does not accurately describe the legislation as it currently stands.
The statutory scheme contains thresholds that must be satisfied before an organisation can be listed.
The Director-General of Security must first recommend that the AFP Minister consider the organisation for prohibition.
The Minister must then be satisfied on reasonable grounds that the organisation has engaged in, prepared or planned conduct constituting specified hate crimes, assisted such conduct or advocated relevant hate-crime conduct.
The Minister must also be satisfied that prohibition is reasonably necessary to protect the Australian community, or part of it, from social, economic, psychological or physical harm.
The Attorney-General must give written agreement and the Leader of the Opposition must be briefed before the Governor-General makes the regulation that formally lists the organisation.
White Australia’s argument is not that the legislation literally contains a power labelled “ban parties the government disagrees with”.
It argues instead that the criteria remain too broad, depend too heavily on executive assessments and allow political organisations to be effectively dismantled without the kind of judicial process the Constitution requires.
The Communist Party Case looms over the argument
The most important historical precedent in the plaintiffs’ case is the High Court’s 1951 decision in Australian Communist Party v Commonwealth.
The Menzies government had attempted to dissolve the Communist Party and impose restrictions on organisations and individuals associated with it.
The High Court struck down the Communist Party Dissolution Act.
That judgment has since become one of Australia’s most important constitutional statements about the limits of executive and legislative power in the name of national security.
White Australia argues the present legislation creates a modern version of the same constitutional problem: the executive identifies an organisation as sufficiently dangerous, prohibits it and criminalises defined forms of participation in it.
The Commonwealth says the analogy fails.
Its position is that the modern legislation does not simply declare an organisation dangerous by political assertion. Instead, Parliament has established statutory criteria connected with specified conduct, hate crimes and risks of harm.
The judges will have to decide whether those differences are constitutionally decisive.
Plaintiffs attack lack of procedural safeguards
White Australia’s lawyers also concentrated on the process surrounding prohibition.
They argued the scheme does not provide an organisation with a conventional hearing before it is listed and criticised the absence of various procedures they say would provide greater protection against political overreach.
The plaintiffs pointed to the lack of a sliding scale of sanctions and argued there were insufficient protections for political commentary or conduct falling short of serious criminal wrongdoing.
They also criticised the ability of the government to consider earlier conduct when assessing an organisation and questioned whether affected groups have adequate mechanisms to challenge the factual basis for executive decisions.
Those arguments sit at the heart of the separation-of-powers challenge.
Australian constitutional law generally reserves the exercise of Commonwealth judicial power to Chapter III courts.
White Australia argues the practical effect of the regime is punitive: an executive decision can result in an organisation becoming unable to function, after which serious criminal offences apply to people who continue participating in it.
The Commonwealth maintains the scheme is preventive rather than an exercise of judicial punishment.
The Commonwealth points to violence and harmful conduct
The federal government’s case is also grounded in the conduct it says led to White Australia’s listing.
Official national-security material describes White Australia as a nationalist and racist extremist organisation whose ideology is based on white supremacy.
The government says it was formerly known as the National Socialist Network and European Australia Movement.
The listing material alleges members promoted racist propaganda against Indigenous Australians, Jewish people, Muslims, Asians and migrants and points to violence against an Indigenous protest camp as one example of conduct considered during the listing process.
It also identifies the public display of Nazi symbols and racist banners and the use of Nazi slogans at demonstrations.
During Tuesday’s hearing, the Commonwealth characterised White Australia as an organisation linked to violent conduct and rhetoric calculated to encourage violence.
It also challenged the significance White Australia places on its attempt to become a registered political party.
The Commonwealth argued that describing an organisation as political does not provide constitutional immunity for conduct otherwise falling within a valid law designed to protect the community.
The implied freedom of political communication
The second major constitutional issue concerns Australia’s implied freedom of political communication.
Unlike the United States, Australia does not have a broad constitutional free-speech clause equivalent to the First Amendment.
The High Court has instead held that the system of representative and responsible government impliedly restricts legislative and executive powers that impermissibly burden communication about political and governmental matters.
The freedom is not usually described as an individual personal right.
Nevertheless, political organisations and their members are obvious participants in the communication required for elections and representative government.
White Australia argues that making membership, recruitment, funding and organisational activity criminal effectively removes a political organisation from the public arena and therefore imposes an exceptionally severe burden.
The Commonwealth accepts that political communication may be affected but argues that protecting communities from serious hate-related harm is a legitimate purpose and that the legislation is appropriately directed towards that purpose.
The case does not depend on whether judges like White Australia
The constitutional importance of the proceedings does not depend on public sympathy for the plaintiffs.
The Commonwealth’s allegations concerning White Australia’s ideology and conduct are serious, and the organisation has been described by authorities as racist and extremist.
But constitutional litigation often requires courts to decide whether government power is lawful even when the person or organisation challenging it is deeply unpopular.
If a power exceeds the Constitution, it does not become valid because its first target attracts little public support.
Equally, an organisation cannot avoid a constitutionally valid general law merely by describing its activity as political.
The High Court’s task is therefore not to endorse or condemn White Australia’s ideology.
It is to decide whether Parliament had constitutional authority to create this particular prohibition regime and whether the mechanism it chose is compatible with Australia’s system of representative government and judicial power.
A decision could affect far more than White Australia
Only two organisations are currently listed as prohibited hate groups, but the constitutional principles established in the case could shape how future governments use the legislation.
If the High Court upholds the scheme, the ruling could provide significant guidance about how far Parliament can go in restricting organisations whose activities combine political advocacy with conduct considered threatening or harmful.
If the Court strikes down all or part of Part 5.3B, Parliament could be required to redesign the regime with narrower definitions, additional judicial safeguards or a different constitutional foundation.
That is why constitutional lawyers have treated the case as considerably more important than the future of one organisation.
Several experts interviewed before the hearing said White Australia’s arguments presented a serious constitutional challenge rather than a case that could simply be dismissed because of the plaintiffs’ political ideology.
No result is expected immediately
The hearing continues on Wednesday, when the High Court is expected to hear further argument from the Commonwealth, intervening state attorneys-general and other participants before allowing the plaintiffs to reply.
The Free Speech Union has also sought to participate in the proceedings.
A judgment is not expected at the end of the two-day hearing.
Major constitutional cases often require weeks or months for the seven justices to prepare reasons.
Until that judgment is delivered, White Australia’s prohibition remains in force.
The central question is therefore still unresolved.
The High Court is not being asked whether governments should be allowed to silence any political party with which they disagree.
It is being asked whether the specific power Parliament created in 2026 to prohibit organisations associated with hate crimes and serious harm crosses constitutional limits — and, if it does, where those limits should be drawn.
