On the 20th of January 2026 the Commonwealth parliament passed legislation that amended the Commonwealth’s Criminal Code to include mechanisms for the proscription of “hate groups” and creating new criminal penalties for membership or support of proscribed groups; this law was passed in the wake of the Bondi Massacre (committed by Islamic extremists) and is buttressed, legally, by the Commonwealth’s ostensible attempt to give effect to the International Covenant on Civil and Political Rights (ICCPR) and by its inherent nationhood power to protect the peace and good order of the Commonwealth.
Following this new legislation, the White Australia party, herein named as the plaintiff was proscribed as a hate group on the 15th of May by the decision of the Governor General. This listing itself is not challenged judicially, but the plaintiffs, being the party and Mr Sewell challenged the law itself (and by consequence, any decision made thereunder), and whether it was within the power of the Commonwealth to pass the legislation it did on the 20th of January.
Treaty Commitments
The arguments raised by the plaintiffs on the treaty issue are well put together. Interestingly, and relevantly, the High Court in the case of Koowarta v Bjelke-Petersen ultimately decided that the foreign relations power under Section 51 of the constitution was a sufficient head of power to give effect to the Racial Discrimination Act (1975), but only to the extent that the legislation “carries into effect the provisions of the international agreement.” This law was substantively brought into effect to deal with treaty commitments made pursuant to the ICCPR in 1966.
In the plaintiff’s case, Mr King SC runs the position that the Commonwealth’s criminal code amendments go beyond what is reasonably necessary and appropriate to “carry into effect” international treaty obligations to end racial discrimination and vilification. This principle of law was espoused by the high court in the 1996 case of Victoria v The Commonwealth in which legislative obligations were tested as to whether they were properly within the power of the Commonwealth to enact.
Clearly, legislation that gives unilateral power to the executive government to proscript an organisation, leading to criminal penalties, without natural justice, or a fact-finding determination by a court of law is an outrageous abuse of process by the Commonwealth and goes well and truly beyond what is “appropriate and adapted” to properly carry into effect treaty obligations dealing with eliminating racial discrimination. The ICCPR does not give a specific procedural regime to give effect to the objectives of the treaty, leaving it for each country to decide how to achieve them. Consequent to this, heavy handed machinery like that in the Criminal Code needs to be justifiable in the sense that it was necessary and adapted to go no further than to meet treaty obligations. Presumably, this constitutional issue was anticipated by a more competent office of parliamentary counsel when the Racial Discrimination Act was drafted in the early 1970s, and as such that act provides carve-outs under Section 18D for legitimate political expression and fair comment – no such carve-outs are adopted in the Commonwealth’s criminal code.
On this ground alone, the case is strong – the Commonwealth’s responses to the plaintiff’s position is full of weak, naked assertions as to the entitlement of the Commonwealth to give effect to the treaty with an “all or nothing” attitude. The Commonwealth’s legal officers do not properly justify that the machinery chosen to deal with racial discrimination was necessarily appropriate and adapted to achieve the legitimate purposes of the treaty.
Freedom of Political Communication
Similarly, the plaintiffs have run the view that the law is unconstitutional as it infringes the implied freedom of political communication guaranteed by our constitutional system of government. Similarly to the “reasonably adapted” test already discussed, the high court decision in 2015 in McCloy established a structured proportionality test to analyse whether a law which infringes on political communication was reasonably appropriate and adapted to give effect to its legitimate purposes (assuming the purpose was legitimate – ie, not just naked tyranny).
The Plaintiff’s junior counsel Mr Sharify performed exceptionally well dealing with the matter. Counsel expressed some of the naturally extreme ramifications of the legislation as drafted, taking into consideration the capacity to proscribe organisations for activities undertaken at any time in the past (going back to time immemorial), the extent that the organisation can be proscribed for “assisting” in hate crimes, providing examples such as organising a public protest at which a hate crime occurred, whether or not it was necessarily planned by the organisation – among other examples.
Once again, using structured proportionality, one would expect serious protective measures to ensure the law was precisely calibrated to go no further than what was reasonably necessary to prevent offending conduct, by analogy, by providing carveouts similar to section 18D of the Racial Discrimination Act or procedurally, by ensuring procedural justice was afforded and that findings of fact were made by a court with proper rules of evidence and procedure which mitigate errors and abuses (which in this case, have enormous legal consequences).
The naked, unqualified provisions of the Commonwealths’ criminal code and their serious criminal penalties create, quite obviously, an unjustifiable regime that creates unilateral powers that go well beyond what is necessary to give effect to international treaty obligations or obligations otherwise necessary to preserve the good order and peace of the community and therefore are likely to be found to be an unjustifiable infringement on our constitutional right to freedom of political communication and association.
Contamination of the Judicial Power of the Commonwealth
Finally, and of course, saving the best for last – is the law’s infringement of the separation of powers that is occasioned by the machinery it uses to proscribe groups. The plaintiffs rightfully suggesting the legislation as drafted intrudes deeply into the exercise of judicial power.
Firstly, the penalties doctrine. The plaintiffs rightly note the high court authority in Lim that it is unlawful for parliament to pass a law which in effect, gives the executive government the power to dole out what is on its face, punishment – without a judicial determination by a Court of criminal guilt.
The Commonwealth attempts to run the argument that the legislation is “protective” and not punitive; a hard case to make when it’s squarely bedded in the Commonwealths’ criminal code, which is by its very nature an instrument of punishment for criminality!
Secondly, the plaintiffs correctly run the argument that in prosecution for being a member of the prohibited hate group, the legislation requires the court to accept the antecedent determination of the executive government that the group is in fact a hate group in accordance with the law.
This principle offends a long thread of rules from the Boilermaker’s Case to Kable, in which the Court has protected its independence from the crown and the parliament by striking down laws that in effect require the court to accept an intrusion into the exercise of judicial power in making a determination of guilt. Where a factual finding of what is substantively criminality (ie, a proscription of a hate group) has been made by the executive or by parliament (as in a bill of attainder) and must be accepted by the court in determining criminal guilt for another offence – the executive government intrudes upon the exercise of judicial power.
It has been affirmed by the High Court recently in the case of EGH19 that determinations amounting to criminality ought to be made by the judiciary and not the executive as “A person subject to an exercise of judicial power should have the power to obtain legal representation, the benefit of a hearing with fair process and generally held in public, an entitlement to written reasons for the decision as to the orders made which demonstrate the application of general rules to the facts of the case, and a power of appeal or to seek leave to appeal. ‘This is not the way that any arm of the Executive conventionally operates.”
Interestingly, in the course of yesterday’s oral argument, Justice Edelman directed the court to hypothesise if the plantiff’s case would, if accepted, have protected the rise of Hitler’s NSDAP in Germany in the 1930s. Chief Justice Gageler interjecting that in any event, even in Germany, the decision to ban a political party would be made by a court, and not the executive, as is currently being attempted in the Commonwealth criminal code.
The great Justice McHugh noting in the case of previous case in Kable that a legislative function offends the constitution where “it requires the supreme court to participate in the making of a preventative detention order where … there has been no determination of guilt.” The High Court historically has exercised care in protecting the independence of the judiciary; this law as drafted essentially ties the hands of the court to rubber stamp the doling out of criminal punishment on the basis of an antecedent non-judicial determination on facts about a hate group proscription.
To put it simply, parliament may create laws that create criminal offences, but it is a requirement of our system of Government, hard won by our forebears in the British Isles in the Barons wars and the English civil war through Magna Carta and the Act of Settlement that the courts decide who has contravened the law without fear or favour and doles out punishment: not the Governor General; or the politically motivated arm of the government; and as such, the parliament cannot develop an indirect way of circumventing this process by proscription.
Concluding thoughts
The case is exceptionally strong; and in any event, the Commonwealth has failed to properly engage with the facts. It starts and finishes with asserting it has legitimate rights to give effect to treaty obligations, but doesn’t give any serious attempt to justify the machinery employed in the current criminal code. The substance of the case is that the means/machinery used to give effect to the treaty obligation are beyond lawful necessity; this is a very strong case and we would expect it to prevail on at least one leg of the argument, if not multiple legs.
The High court has, under Chief Justice Gageler shown its commitments to the preservation of the rule of law and the Commonwealth constitution; even where the outcome is unpopular (refer to the Immigration detention issue last year). There is no doubt for us that the Commonwealth’s rushed and frankly insulting legislation will be struck down.
Whilst this law will likely be struck out as drafted, there remains the existing body of law (and the likelihood this law is re-drafted to meet constitutional requirements) which will continue to be used against political advocates who are not careful with how they advocate for their Nationalist policy. As the ANA insisted when this law was first implemented (and even in the years prior), the only way forward for Nationalist advocacy (assuming you don’t want to spend all your time and money defending prosecutions and or being imprisoned) is to ensure, despite the difficulty in doing so, that all your commentary is genuinely and defensibly tied to the conveyance of points of political policy and doesn’t go over and above what is necessary to articulate a political point. It is this principle of advocacy which is a large part of your armour against the arrows of the enemy.
Where next?
Should the case fail, and the law is upheld as is, the last remaining means of lawful remedy will be a constitutional writ for certiorari against the decision of the Governor General for the proscription regulation against the party. Despite the rules of natural justice not being afforded by the criminal code, the governor general still, by operation of the statute as drafted, must base her decision on reasonable grounds, which would, by operation of the Court’s ruling in the 2006 case of McKinnon v Secretary, Department of Treasury infer the strict legal requirement for the governor general to turn her mind to all the available facts as to the activities of the group, and whether or not it can be properly said, weighing up all available facts that the organisation counsels, promotes, encourages or urges the engagement in conduct constituting a hate crime.
M. Grant
National Governor
September 2026