Should the federal government be constitutionally able to ban a group, resulting in stiff criminal penalties for its continuing members, even though the group has not committed any crime?
Author
- Anne Twomey
Professor Emerita in Constitutional Law, University of Sydney
This is the dilemma the High Court is facing with the constitutional challenge by the White Australia Party to the validity of the recently enacted Part 5.3B of the Commonwealth Criminal Code.
What does the challenged law do?
Part 5.3B allows the police minister to advise the governor-general to declare a group to be a “prohibited hate group”. Such a declaration was made in relation to the White Australia Party .
Once a group is prohibited, it becomes a serious criminal offence to be a member of it, to direct its operations, to fund or train it or otherwise support it. The penalties are high, with maximums ranging from seven to 15 years’ imprisonment.
The minister must be satisfied on reasonable grounds that the group has engaged in conduct constituting a “hate crime”, or been associated with a hate crime. For example, this could be by preparing, planning, assisting or advocating engaging in such conduct.
But despite the term “hate crime”, the legislation makes it clear no one needs to have been convicted of a crime, no crime needs to have been committed, and the conduct could have occurred long ago when it was not a crime.
It’s left to the minister to be satisfied, without a hearing or procedural fairness, that conduct constituting a hate crime has occurred, or has been planned, assisted or advocated.
Before advising the ban, the minister must have received certain advice from ASIO, consulted the opposition leader and received the agreement of the attorney-general. The minister must also be satisfied that banning the group is reasonably necessary to protect the Australian community, or part of it, from social, economic, psychological or physical harm.
The scope of the discretion is very wide, with decision-making occurring within the executive government, rather than the courts.
White Australia is claiming Part 5.3B is constitutionally invalid on three grounds. First, the Commonwealth parliament has no power to make the law. Second, it breaches the implied freedom of political communication. Third, it breaches the separation of powers.
Lack of legislative power
The Commonwealth parliament can only make laws about certain subjects in the Constitution. Here, the Commonwealth argues the external affairs power applies to allow it to make laws to implement treaty obligations. It claims that Part 5.3B implements treaty obligations that require advocacy of racial hatred to be prohibited by law and require the banning of organisations that “promote and incite racial discrimination”.
But Part 5.3B does not make it an offence to advocate racial hatred. The primary question is likely to be whether the range of conduct that can trigger a ban under Part 5.3B is sufficiently targeted to fall within the category of promoting and inciting racial discrimination. It may depend on whether the justices take a strict or flexible view about the need to conform with the terms of the treaty.
There is also a question of whether the executive government, rather than a court, can determine the facts that bring a law within constitutional power. When the Menzies government tried to ban the Communist Party in 1950, its legislation was struck down . This is because mere executive assertions – such as that Communists engage in subversion – were not capable of bringing a law within constitutional power.
A similar problem arises in relation to this 2026 incarnation. It is the minister who decides that a group has engaged in the conduct that would trigger the application of the external affairs power. This makes the law vulnerable to being struck down.
Breaching the implied freedom of political communication
The second ground is that Part 5.3B breaches the implied freedom of political communication. Banning a political party would clearly burden freedom of political communication. The argument will be whether this burden can be justified to achieve a legitimate purpose.
The High Court has previously held, in the Candace Owens Farmer case , that a legitimate purpose may include preventing harmful dissension or strife (including intimidation, vilification or victimisation) on a large scale in the Australian community or in segments of the community. But parliament cannot legislate for the purpose of curbing political disagreement.
To be justified, its laws must be directed at preventing “material harm to the Australian community or a segment of that community”. It would not be sufficient if only “the feelings or sensitivities of the Australian community or a segment of the community would be hurt or adversely affected”.
The High Court will need to decide on which side of this line the “hate crime” conduct falls. This may be difficult because it covers a wide range of acts.
Breaching the separation of powers
The third ground is that the law allows the executive government to exercise judicial power, breaching the separation of powers. This point is harder to argue, because the criminal offences, such as continuing as a member of the group or financially supporting it, would all still be tried before a court.
But White Australia will contend the executive government, in banning a group, is adjudicating on its past conduct and punishing it by preventing it from being able to exist, and receive funding and support from others. The High Court would need to decide whether that crossed the line into exercising exclusive judicial power.
The potential ramifications
All three arguments sit in the grey areas around the edges of constitutional power. While many in the media will cast the case as being about the politics of the White Australia Party and whether the High Court supports its existence, that’s not the issue at all. It’s really about the boundaries of executive and legislative power – a far more significant issue with ongoing ramifications.
In the short term, the issues decided in this case will have relevance to other constitutional challenges. These include the challenge to the Queensland law banning certain slogans, and the validity of the racial vilification provision in section 18C of the Racial Discrimination Act.
In the longer term, this decision may be vital in preventing the misuse of such powers by a future authoritarian government as a means of banning opposition groups or parties. Whatever the outcome, it will be far more consequential than the existence of the White Australia Party.
