Australia’s controversial new prohibited hate-group laws will face their most important legal test yet this week, when the High Court hears a constitutional challenge brought by the White Australia Party and its national president, Thomas Sewell.
The Full Court is scheduled to hear White Australia Party Inc & Anor v The Commonwealth of Australia & Anor in Canberra on Tuesday and Wednesday, 8 and 9 September.
The case goes considerably further than a dispute over one organisation. At stake is the constitutional validity of Part 5.3B of the Commonwealth Criminal Code, the framework Parliament created in January to allow organisations involved in specified hate-related conduct to be declared “prohibited hate groups”.
Once an organisation is listed, a series of serious criminal offences can apply to people who knowingly remain members, direct its activities, recruit for it, participate in certain training, provide funds or give support intended to help the organisation continue operating.
The plaintiffs argue that the scheme goes beyond Commonwealth legislative power, impermissibly burdens Australia’s implied freedom of political communication and gives the executive government a punitive function that constitutionally belongs to courts.
The Commonwealth rejects all three arguments and says the regime is a valid preventive law aimed at organisations whose activities present a serious threat of hate crime, violence and harm to Australian communities.
How the White Australia Party became the test case
The prohibited hate-group framework was created by the Combatting Antisemitism, Hate and Extremism legislation passed by both houses of federal Parliament on 20 January 2026.
Part 5.3B commenced two days later.
White Australia was formally specified as a prohibited hate group in May. The regulations were made on 15 May and took effect on 16 May.
The federal government says White Australia is an Australian-based nationalist and racist extremist organisation that previously operated under the names National Socialist Network and European Australia Movement.
Government material says the organisation promotes white supremacist ideology and has engaged in conduct including racist propaganda, the public use of Nazi imagery and slogans and violence against an Indigenous protest camp.
The Parliamentary Joint Committee on Intelligence and Security subsequently reviewed the listing and, in August, concluded that White Australia met the statutory criteria and that the regulation had been properly made. The committee found no reason for Parliament to disallow it.
White Australia disputes the Commonwealth’s characterisation of its political activities and says its constitutional challenge must be decided according to the legal operation of the legislation rather than whether judges approve of its ideology.
Sewell, who was formerly a leader of the National Socialist Network, is the second plaintiff.
Three constitutional questions
The High Court has been asked to decide three central questions about Part 5.3B.
The first is whether the legislation is supported by any constitutional head of Commonwealth legislative power.
The second is whether it impermissibly burdens the implied freedom of political communication.
The third is whether the scheme infringes Chapter III of the Constitution by giving the executive a power that is judicial, or impermissibly punitive, in character.
Any one of those arguments, if accepted to the extent sought by the plaintiffs, could be sufficient to invalidate some or all of the challenged provisions.
The plaintiffs have placed particular emphasis on the High Court’s landmark 1951 decision in the Australian Communist Party v Commonwealth case, in which legislation directed at dissolving the Communist Party was struck down.
The White Australia Party argues that the new scheme reproduces the constitutional problem in a modern form by allowing the executive to identify an organisation, prohibit it and attach criminal consequences to continuing membership and support.
The Commonwealth says that comparison is wrong.
Its submissions argue that the present legislation establishes statutory criteria based on an organisation’s conduct and risk, rather than simply allowing the government to declare an organisation dangerous because it says so.
What actually has to happen before a group is prohibited?
One of the strongest criticisms made by opponents of the regime is that an organisation does not first have to be convicted in court of a hate crime before it can be listed.
That part is correct.
Section 114A.4 expressly says a person does not need to have been convicted of a hate crime before the AFP Minister can be satisfied that an organisation has engaged in relevant conduct.
The legislation also expressly removes a requirement for procedural fairness when the AFP Minister decides whether the statutory threshold has been met. The Director-General of Security is similarly not required to provide procedural fairness when supplying listing advice.
But descriptions of the process as a decision made solely by two individuals omit several statutory steps.
The Director-General of Security must first provide relevant advice before the AFP Minister can consider recommending that an organisation be specified.
The AFP Minister must then be satisfied on reasonable grounds that the organisation has engaged in, prepared or planned relevant hate-crime conduct, assisted such conduct or advocated conduct falling within the statutory criteria, and that listing it is reasonably necessary to protect the Australian community from specified harm.
The Minister must obtain the Attorney-General’s written agreement and arrange for the federal Opposition Leader to be briefed.
The organisation is ultimately specified by regulation made by the Governor-General.
The regulation is also subject to parliamentary scrutiny. The Parliamentary Joint Committee on Intelligence and Security can review a listing and report to both houses, while the legislative instrument is capable of parliamentary disallowance.
There are also mechanisms for de-listing where the Minister ceases to be satisfied that continued prohibition is reasonably necessary.
The offences carry heavy prison terms
The consequences once a group is listed are nevertheless substantial.
Knowingly directing the activities of a prohibited hate group carries a maximum penalty of 15 years’ imprisonment. A reckless form of the directing offence carries 10 years.
Knowingly and intentionally remaining a member of a prohibited hate group carries up to seven years.
Recruitment can attract up to 15 years, as can specified training activities, funding conduct and material support designed to help a prohibited organisation engage in relevant conduct, expand or continue to exist.
Those penalties explain why the constitutional challenge has attracted attention from free-speech advocates well beyond people who support the White Australia Party.
But some broader claims about the legislation go further than its text.
There is no general offence in Division 114B that simply makes it a crime to associate socially with someone who was once a member of a prohibited hate group.
Nor does attending the same public demonstration as a former member automatically constitute an offence.
The legislation identifies particular conduct: directing, membership, recruitment, training, financial dealings and specified forms of support.
For the membership offence, the prosecution must establish that a person intentionally remains a member and knows the organisation is prohibited. The legislation also provides that the offence does not apply where the person proves they took all reasonable steps to cease membership as soon as practicable after learning that the group had been prohibited.
That is materially different from saying a former member permanently loses the legal ability to participate in Australian politics or associate with other people.
The free-speech argument
The most politically significant part of the case may be the implied freedom of political communication.
Australia does not have an American-style constitutional right to free speech.
Instead, High Court doctrine recognises an implied constitutional restriction on government power protecting communication necessary for Australia’s system of representative and responsible government.
The distinction matters because the implied freedom is not treated as an individual personal right in the same way as the First Amendment in the United States.
The White Australia Party argues that Part 5.3B places a severe burden on political participation because listing effectively prevents an organisation from functioning as a political body. Members cannot lawfully continue participating in it in the ordinary way, while recruitment, funding and support are also criminalised.
The Commonwealth concedes that the legislation can burden political communication but describes the incremental burden as limited and constitutionally justified.
Its written submissions argue that former or would-be members remain capable of making lawful political statements in their individual capacity or through other organisations that do not themselves meet the criteria for prohibition.
The Commonwealth also argues that the scheme is directed at an organisation’s conduct and risk rather than at a particular political opinion.
It describes the burden as “content-neutral”, saying the offences generally turn on the capacity in which a person acts and the relationship with a listed organisation, rather than the political topic or viewpoint being expressed.
The plaintiffs strongly contest that characterisation, arguing that when the practical result is to prevent a political organisation from operating, the burden on political participation cannot be dismissed merely because the statute does not expressly prohibit particular words.
A controversial submission about freedom of association
Western Australia, which has intervened in support of the Commonwealth position, has also attracted attention for stating in its written submissions that individuals do not have a personal right to be members of an organisation.
Read alone, the sentence is sweeping.
In its legal context, however, Western Australia is making the more specific constitutional point that the implied freedom of political communication — and the associated protection given to political association — is not itself a freestanding personal constitutional right.
The state accepts that Part 5.3B can prevent members and officers of a listed group from communicating politically in their capacity as members and can practically prevent the organisation itself from conducting political communication.
Its argument is that such a burden can nevertheless be constitutionally valid if it is sufficiently connected and proportionate to the legitimate objective of protecting the community from serious harm.
Whether the High Court accepts that reasoning is one of the issues now before it.
The international-law argument
The Commonwealth also relies on the Constitution’s external affairs power and Australia’s international obligations, including provisions of the International Covenant on Civil and Political Rights and the International Convention on the Elimination of All Forms of Racial Discrimination.
The plaintiffs argue those treaties do not support the breadth of the Australian scheme.
It is correct that an international treaty does not automatically become enforceable domestic Australian law simply because Australia has ratified it.
But that does not end the constitutional question.
The High Court has long recognised that the Commonwealth’s external affairs power can support domestic legislation implementing sufficiently specific international treaty obligations.
The real contest is therefore whether Part 5.3B can properly be characterised as implementing those obligations and whether the legislative response is sufficiently connected to them.
Only two groups are currently listed
As of 6 September, two organisations are listed under the new prohibited hate-group regime.
Hizb ut-Tahrir became the first when its listing took effect on 6 March.
White Australia became the second on 16 May.
The government says the fact that the framework has been used against organisations with substantially different ideological backgrounds demonstrates that the statutory scheme is concerned with harmful organisational conduct rather than a particular political persuasion.
The plaintiffs say the central constitutional problem remains the same regardless of which ideology is targeted: whether the Commonwealth executive can effectively disable an organisation and then criminalise defined forms of participation without first obtaining a judicial finding against the organisation.
The High Court has not decided the issue yet
The case has already been before individual High Court judges in preliminary proceedings.
In June, Chief Justice Stephen Gageler declined to suspend the operation of the White Australia listing while the substantive constitutional case awaited hearing.
That ruling did not determine whether Part 5.3B is constitutionally valid.
The Full Court will now hear the competing constitutional arguments over two days.
It would therefore be premature to describe the legislation as definitively unconstitutional, just as it would be premature for the government to assume its validity has been settled.
The importance of the case lies precisely in the fact that those questions remain unresolved.
The political views of the organisation bringing the challenge may be deeply objectionable to many Australians. The Commonwealth itself characterises White Australia as a racist extremist organisation and the parliamentary intelligence committee has backed its listing.
But constitutional cases frequently require courts to separate the popularity of a litigant from the validity of the power being exercised against them.
When the High Court sits on Tuesday, the question will not be whether Australians should endorse the White Australia Party’s ideology.
It will be whether the Commonwealth Parliament has constitutional authority to operate this particular system for prohibiting organisations — and whether the safeguards, burdens and criminal consequences Parliament chose are compatible with Australia’s constitutional system of representative government.
The answer could define the limits of one of the most significant new federal powers created in response to hate and extremism for years.
