The Commonwealth has defended Australia’s sweeping new prohibited hate-group laws before the High Court, arguing they are necessary to protect minority communities from racial hatred and the risk of political or communal violence as the nation’s highest court considers a major constitutional challenge to the regime.
The Full Court heard two days of arguments in Canberra on September 8 and 9 in White Australia Party Inc & Anor v Commonwealth of Australia & Anor, a case that goes well beyond the fate of one extremist organisation.
At stake is whether the Commonwealth can constitutionally use the new framework to prohibit an organisation and criminalise forms of membership, leadership, recruitment, training, funding and support on the basis of ministerial findings about hate crimes and risks of politically motivated or communal violence.
White Australia and its national president, Thomas Sewell, argue the regime goes too far, impermissibly burdens the constitutionally implied freedom of political communication and gives the executive government powers incompatible with Chapter III of the Constitution.
The Commonwealth says the opposite: that preventing organisations capable of spreading racial hatred, intimidating minorities and encouraging violence can protect, rather than undermine, Australia’s system of representative democracy.
The High Court has not yet ruled.
Government says White Australia is more than merely offensive
Commonwealth barrister Brendan Lim SC rejected the plaintiffs’ attempt to frame the case as one about protecting political views that may simply be offensive or unpopular.
White Australia’s lawyers had characterised the organisation as potentially “awful but lawful”, arguing that distaste for its political beliefs could not justify excluding it from democratic communication.
Mr Lim told the court the organisation was “more than awful, more than invective” and described it as violent in character and effect.
The Commonwealth’s case is that the organisation poses risks extending beyond offences personally committed or directly ordered by its leaders.
It argues that organised extremist rhetoric can encourage politically motivated or communal violence by members, associates or people inspired by a group even where no direct instruction to carry out an attack is issued.
That argument goes to the architecture of the legislation itself.
The prohibited hate-group provisions were inserted into the Criminal Code by the Combatting Antisemitism, Hate and Extremism (Criminal and Migration Laws) Act 2026, which was enacted in January following the December 2025 terrorist attack at Bondi Beach.
The statutory objects include protecting Australians from social, economic, psychological and physical harm, as well as from the promotion of violence by organisations involved in conduct defined as a hate crime.
The laws also expressly seek to give effect to Australia’s international obligations concerning racial discrimination and advocacy of national, racial or religious hatred.
How an organisation can be banned
The legislation does not permit a federal minister simply to place any organisation on the prohibited list without preliminary steps.
Before the listing process can proceed, the Director-General of Security must provide written advice recommending that the AFP Minister consider the organisation.
The ASIO Director-General can provide that advice only after reaching specified conclusions about activities that would, or are likely to, increase the risk of politically motivated violence or the promotion of communal violence, or about conduct indicating such a future risk.
The AFP Minister must then be satisfied on reasonable grounds that the organisation has engaged in, prepared or planned conduct constituting a hate crime, assisted such conduct or advocated relevant hate-crime conduct, and that prohibition is reasonably necessary to protect the community from harm.
The Attorney-General’s written agreement must be obtained and the federal Opposition Leader must be briefed before the Governor-General makes the regulation.
But several features of that framework are at the centre of the constitutional challenge.
A criminal conviction is not required before the minister can be satisfied that an organisation engaged in conduct constituting a hate crime.
The legislation also expressly allows certain conduct from before commencement of the provisions to be considered, including conduct that would have constituted specified offences had those provisions existed at the time.
And the statute says neither the minister nor the Director-General is required to observe procedural fairness in carrying out key parts of the listing process.
For the plaintiffs, those provisions demonstrate how much power Parliament has placed in executive hands.
White Australia says the burden on politics is extreme
Barristers Peter King and Shahed Sharify, appearing for White Australia and Mr Sewell, told the court the regime should be struck down.
Mr King described the legislation as akin to “using a sledgehammer to crack a nut” and argued that prohibition effectively strips members of their ability to organise and participate collectively in Australian political life.
The plaintiffs say that is particularly significant because White Australia had sought to organise itself as a political party.
Court material from earlier proceedings records that White Australia Party Inc was incorporated in Victoria in December 2025 and lodged an application with the Australian Electoral Commission for registration as a non-parliamentary political party in April 2026.
It was prohibited the following month.
The organisation is not treated by the Commonwealth as a genuinely separate successor to the National Socialist Network.
Government material identifies White Australia as the same organisation previously known as the National Socialist Network and European Australia Movement, saying the change of name formed part of a rebrand rather than the creation of an unrelated body.
Home Affairs Minister Tony Burke said when announcing the prohibition in May that the organisation had effectively attempted to “phoenix” after the new laws were enacted.
White Australia’s lawyers argue that even an organisation expressing views widely regarded as racist or repugnant remains capable of engaging in political communication protected by the constitutional system.
They say permitting a minister to impose such far-reaching consequences on a political organisation creates a danger extending beyond the present plaintiffs.
The implied freedom is not a personal free-speech right
The constitutional argument involves an important distinction often lost in public debate.
Australia’s implied freedom of political communication is not an American-style individual right to say whatever a person chooses.
It is a constitutional limitation on governmental power derived from Australia’s system of representative and responsible government, including the requirement that members of federal Parliament be directly chosen by the people.
A law may burden political communication and still be valid if its purpose and operation are compatible with that system and the burden can be constitutionally justified.
The Commonwealth accepts that the prohibited hate-group regime burdens political communication.
Its argument is that the burden is justified because organisations that intimidate targeted communities or foster violence can themselves prevent other Australians from participating freely in public and political life.
In that sense, the government argues, limiting one organisation can protect the conditions necessary for political participation by others.
The plaintiffs reject that reasoning, arguing the regime suppresses political organisation too comprehensively and could have been designed with narrower safeguards.
Dispute over what counts as a hate crime
Mr Sharify focused heavily on the statutory definition of a hate crime and the consequences flowing from a ministerial assessment.
Under the legislation, hate crime encompasses several categories of conduct, including conduct that would constitute specified federal offences, certain public incitement of racial hatred linked to Commonwealth or state offences, and serious harmful conduct motivated by race or national or ethnic origin.
The Act specifically states that an individual does not have to have been convicted of a hate crime before the minister can conclude that an organisation has engaged in the relevant conduct.
White Australia’s lawyers argue this gives the executive an exceptionally consequential role in characterising past behaviour without first requiring a criminal court to establish guilt.
The Commonwealth responds that listing an organisation is a protective mechanism directed at future risk, not a criminal conviction imposed retrospectively on individual members.
Once a group is listed, however, new criminal consequences apply to conduct occurring in relation to it.
Intentionally directing the activities of a prohibited hate group can carry up to 15 years’ imprisonment. Recruiting for one can carry the same maximum penalty, as can certain training, funding and support offences.
Knowing membership carries a maximum seven-year sentence, subject to provisions including a defence for a person who took all reasonable steps to leave as soon as practicable after learning the organisation had been prohibited.
Government relies on White Australia’s history
The Commonwealth’s case is also grounded in the documented conduct attributed to White Australia and its predecessor organisations.
The federal government’s national security listing describes White Australia as an Australian-based nationalist and racist extremist organisation whose ideology is grounded in racism and white supremacy.
Government material says members have participated in demonstrations involving Nazi slogans and racially supremacist propaganda and points to conduct at protests as part of the basis for prohibition.
The Commonwealth argued in the High Court that specific slogans and public demonstrations should not be considered in isolation from the organisation’s ideology, history and the effect its activities can have on targeted communities.
Mr Lim also argued that existing laws dealing with particular forms of hate speech and prohibited Nazi symbols were insufficient to deal with the broader organisational risk the government says White Australia presents.
The Parliamentary Joint Committee on Intelligence and Security has separately reviewed White Australia’s listing and in August backed the government’s decision to prohibit the organisation.
That parliamentary endorsement does not determine the constitutional issue now before the High Court.
The judges must decide whether Parliament had constitutional authority to create the regime and whether the manner in which it operates complies with constitutional limitations.
The Communist Party case returns to the High Court debate
White Australia’s lawyers have repeatedly invoked one of Australia’s most famous constitutional decisions: the High Court’s 1951 ruling invalidating the Menzies government’s attempt to dissolve the Communist Party of Australia.
The comparison is politically striking but legally contested.
The plaintiffs argue the older case demonstrates the danger of allowing an executive government to effectively determine for itself the facts said to justify suppressing a political organisation.
The Commonwealth says the modern hate-group regime rests on different constitutional foundations, statutory criteria and safeguards and cannot simply be equated with the Communist Party Dissolution Act.
How far the 1951 precedent assists White Australia will be among the issues the High Court must resolve.
The law does contain a de-listing mechanism
Another argument during the hearing concerned what happens if a prohibited organisation changes its conduct.
The legislation does contain a mechanism under which a prohibited hate group can cease to be listed.
If the AFP Minister ceases to be satisfied that prohibition remains reasonably necessary to protect the community, the minister must make a declaration and the relevant regulation ceases to have effect for that organisation.
Before doing so, the minister must consider the statutory criteria, consult the Attorney-General and arrange for the Opposition Leader to be briefed.
What the framework does not provide is an express statutory application process allowing a prohibited organisation to compel the minister to reconsider its listing on request.
White Australia’s counsel argued that this absence weakens the safeguards and makes it harder for an organisation claiming to have reformed to seek removal from the regime.
The Commonwealth’s position is that groups that merely alter their name or presentation while maintaining the same underlying organisation and risk should not be able to circumvent the law.
A judgment with implications beyond White Australia
The case therefore presents the High Court with two sharply competing propositions.
The Commonwealth says a representative democracy is not strengthened by allowing extremist organisations to intimidate minority communities, promote racial hatred or create an environment in which violence becomes more likely.
White Australia says a democracy is endangered when ministers are given the power to suppress political organisations without the safeguards it argues the Constitution demands.
The High Court’s task is not to decide whether White Australia’s ideology deserves public approval.
It is to decide whether the Commonwealth Parliament validly enacted the legal machinery used to prohibit it.
The answer could shape how Australian governments confront extremist organisations for years to come.
After two days of argument, that answer now rests with the seven justices of the High Court.
Judgment is expected at a later date.
