Bad Precedents Outlive Bad Actors

The White Australia Party, the Communist Party and the Power to Prohibit Political Association

Reader note: This article examines a live constitutional challenge involving the White Australia Party. I do not share its racial politics. My concern here is narrower: what powers should government possess over political association when the organisation invoking constitutional protection holds ideas I reject? The Full Court of the High Court heard the case on 8 and 9 September 2026. As of 26 September 2026, no Full Court judgment has been published.

Earlier this year, while Parliament was considering Australia's new hate and extremism laws, I wrote Free Speech, Faith and the New Hate Laws: Why This Debate Matters. My concern was not that racism, antisemitism or violence should somehow sit beyond the reach of law. It was about where we place the boundary between punishing unlawful conduct and giving government the power to determine that an organisation itself should no longer be permitted to operate.

At the time, much of that concern was prospective. Parliament had created a new category of prohibited organisation, but the harder constitutional questions would come when the power was actually used. They have now arrived in White Australia Party Inc & Anor v Commonwealth of Australia & Anor, where the Court is considering whether Part 5.3B of the Criminal Code lacks sufficient Commonwealth legislative power, impermissibly burdens the implied freedom of political communication, or infringes Chapter III of the Constitution.

The organisation bringing that challenge makes this a particularly useful test of principle. Constitutional protections are relatively easy to affirm when the person seeking them shares my values. Their limits become more revealing when the applicant does not.

The Law Did Not Appear in a Vacuum

Before considering either White Australia or the constitutional challenge, the circumstances in which Parliament created the prohibited hate-group regime deserve to be acknowledged.

On 14 December 2025, two gunmen attacked a Chanukkah celebration at Bondi Beach. Fifteen people were killed and more than 40 injured. The attack was declared a terrorist attack, and the Parliamentary Joint Committee on Intelligence and Security later described it as Australia's deadliest terrorist attack. The Albanese Government expressly presented the January 2026 hate and extremism legislation as part of its response to Bondi.

That context matters. Parliament was responding to real violence, real fear and a demonstrated capacity for extremist ideology to end in bloodshed. Any examination that discussed the breadth of the new powers while saying nothing about the event that prompted them would give an incomplete account of why legislators believed stronger preventive measures were necessary.

It is equally important to keep separate facts separate. The plaintiffs' own High Court submissions record the Bondi attack and immediately state that no involvement by White Australia or any of its members is suggested. The present case is therefore not about responsibility for Bondi. It is about the broader legal architecture Parliament created in its aftermath and whether that architecture can constitutionally be applied to White Australia.

Australia Has Proscribed Organisations Before

There is another piece of context that should be established before turning to White Australia itself. Australia is not confronting organisational proscription for the first time, and membership of a prohibited organisation is not a concept invented by the 2026 hate-group laws.

During the Second World War, the Menzies government moved to dissolve the Communist Party of Australia under the National Security (Subversive Associations) Regulations 1940. The ban was imposed on 15 June 1940 and lifted by the Curtin government on 18 December 1942, conditional upon the Party supporting the war effort. The circumstances were extraordinary, but the precedent is real: an Australian government has previously suppressed a political party using wartime national-security powers.

That wartime prohibition should be distinguished from the much better-known attempt a decade later. The Communist Party Dissolution Act 1950 declared the Communist Party unlawful, provided for its dissolution and property, and created mechanisms affecting affiliated organisations and individuals. The legislation was successfully challenged in the High Court in 1951.

The wartime regulations had not been confined to communists. In January 1941, organisations associated with Jehovah's Witnesses were also declared prejudicial to the defence of the Commonwealth and the efficient prosecution of the war. Commonwealth authorities occupied the Adelaide organisation's Kingdom Hall, and the resulting challenge reached the High Court in 1943.

The outcome is important to this discussion. The High Court did not accept that the regulations infringed the Constitution's protection concerning religion, but it nevertheless held that aspects of the regime exceeded the Commonwealth's defence power. Even in wartime, and even where government had characterised an organisation as prejudicial to national defence, the existence of a serious asserted threat did not place Commonwealth action beyond constitutional limits.

These examples matter because they prevent me from presenting organisational prohibition as something Australia has never contemplated. Governments have sometimes concluded that particular associations pose such a serious threat that ordinary prosecution of individual acts is insufficient.

Modern Australian law goes further through the established terrorist-organisation regime in Division 102 of the Criminal Code. An organisation can be listed where the responsible Minister is satisfied on reasonable grounds that it is directly or indirectly engaged in, preparing, planning, assisting or fostering the doing of a terrorist act, or advocates the doing of a terrorist act. Knowing membership of a terrorist organisation can itself attract up to ten years' imprisonment.

The organisations listed under that regime are not confined to Islamist terrorism. As of September 2026, Australia's list includes National Socialist Order, Sonnenkrieg Division, The Base and Terrorgram, all associated with nationalist and racist violent extremism. Their original Australian listing dates include February 2022 for National Socialist Order, August 2021 for Sonnenkrieg Division, December 2021 for The Base and June 2025 for Terrorgram.

Terrorgram is an especially useful comparator to the argument now being made about White Australia. The Australian Government describes it as a decentralised online organisation whose propaganda is intended to inspire terrorist attacks, whose administrators promote lone-actor violence, and whose members are encouraged to plan and fund attacks themselves rather than wait for a conventional command structure. The Government nevertheless concluded that it fell within the established terrorist-listing framework because it advocates terrorist acts.

That history changes the question for me. It cannot simply be whether Australian law should ever permit government to prohibit an organisation, because Australian law already does. Nor can it simply be whether propaganda or political rhetoric can contribute to later violence, because the terrorist regime already recognises circumstances in which advocacy and the fostering of violence may justify organisational proscription.

The official rationale provides part of the answer. Parliament created the prohibited-hate-group framework to reach organisations engaged in or advocating hate crimes based on race or national or ethnic origin, and to protect Australians from social, economic, psychological and physical harm as well as the promotion of violence. That occupies a different space from the existing terrorist-organisation regime, which depends upon conduct meeting the more specific statutory definition of terrorism.

The Government has, however, explained why it believed a separate framework was needed. The Explanatory Memorandum distinguishes existing Division 80 offences, which target conduct by individuals, from the prohibited-hate-group framework, which is intended to restrict an organisation's ability to operate and expand and thereby reduce its capacity to continue engaging in hate crimes. Home Affairs Minister Tony Burke described the policy in plainer terms after passage: organisations that did not meet the terrorist threshold could now be considered for prohibition, and the Government had deliberately sought to lower that threshold.

That makes the question more precise. The gap was not unidentified. Parliament deliberately created a separate mechanism capable of reaching organisations that do not satisfy the terrorist-organisation threshold, and Part 5.3B does more than create another offence. Once an organisation is listed, the legal consequences extend to continued membership and other specified forms of association.

There are circumstances in which government plainly has a responsibility to protect people from organisations preparing, facilitating or advocating serious violence. The harder question is whether the threshold Part 5.3B creates, and the consequences that follow from crossing it, are proportionate to the gap Parliament identified. What evidence is required to cross that line, how is individual conduct properly attributed to the organisation, who makes that determination, and what safeguards should accompany a power capable of reaching political association before the terrorist-organisation threshold is met?

Before asking whether the Commonwealth has crossed that line appropriately in this case, however, I need to be equally clear about the organisation asking the High Court for constitutional protection.

The Party I Would Not Join

White Australia's own High Court submissions state that the association was registered in Victoria on 20 December 2025. Its stated objects include preserving and advancing the cultural, historical and ethnic interests of Australians of predominantly European heritage, promoting awareness of European Australian contributions, and advocating immigration and population policies through lawful political advocacy, education and community activity. It applied to the Australian Electoral Commission for registration as an eligible political party on 25 April 2026.

There are parts of the conversation surrounding Australian history, immigration and cultural continuity that I do not think should simply be surrendered because racial-nationalist organisations have entered the debate. Australia did not emerge institutionally or culturally from nowhere.

The Commonwealth formed in 1901 from six British colonies, under a Constitution enacted by the British Parliament. At Federation, British subject status remained the principal civic status recognised by the constitutional order. Parliamentary material examining the period has also characterised the religious climate around Federation as broadly concerned with the advancement of Christianity while rejecting the establishment of a national church.

To acknowledge that inheritance is not to deny the Aboriginal and Torres Strait Islander peoples who lived on this continent for thousands of years before British settlement. It is to describe honestly the institutional lineage of the Commonwealth formed in 1901. Its Crown, Parliament, legal traditions and systems of responsible government came principally through Britain, while Christianity had exercised a profound influence upon the civilisation from which those institutions emerged.

I think much of that inheritance is worth preserving. I do not believe national stewardship requires Australians to pretend their country has no inherited culture, that every cultural norm is interchangeable, or that immigration policy should be disconnected from a society's ability to integrate those who arrive.

I also believe Australia is entitled to maintain rigorous immigration, security and character screening. That concern becomes especially important where migration occurs from regions experiencing terrorism, civil war, sectarian violence, ethnic cleansing or sustained religious persecution. Australia should be able to examine criminal history, organisational affiliations, support for political violence, credible security concerns and a prospective migrant's willingness to live peacefully under Australian law.

For me, however, the distinction is that the assessment should remain as individualised and evidence-based as practicable. Coming from a country in conflict may justify closer examination where genuine security indicators exist, but nationality, ethnicity or skin colour should not themselves become proxies for guilt.

A Christian escaping persecution in the Middle East should not inherit the guilt of those who persecuted him. A Yazidi survivor of Islamic State should not be treated as morally interchangeable with the people who drove her community from its homes. Nor should a peaceful Muslim, Hindu, Sikh or any other person automatically bear responsibility for violent movements operating among people who happen to share a nationality or ethnicity.

The same reasoning applies within Australia. I am a first-generation Australian born to German parents. I value the European inheritance that helped shape modern Australia, but I cannot find a Christian basis for concluding that my ancestry gives me greater human worth or inherently superior civic standing than an Australian whose family came from Vietnam, India, Lebanon or Africa.

There is therefore a nuance here that I do not want to lose merely because organisations carrying the White Australia name have made the subject more difficult to discuss. Rapid demographic change, weak public discussion about integration, imported sectarian tensions and a sense that citizens have limited influence over the scale and composition of migration can generate genuine concern. Governments do themselves no favours when reasonable questions about immigration, social cohesion or cultural continuity are treated as though the questions themselves are illegitimate.

I can also understand how some of those concerns may make movements such as White Australia, the former National Socialist Network or European Australia Movement attractive to some people. I do not claim to know the motivation of every person who has joined or associated with those organisations, and some of their publicly expressed ideology goes far beyond anything I would endorse. Understanding how a grievance becomes politically attractive is not the same as excusing where that grievance leads, and it does not soften my rejection of racial hierarchy or racial violence.

A movement can identify a real anxiety and still offer the wrong answer.

For me, the line is crossed when ancestry itself becomes an organising political principle. Australia may legitimately ask whether someone poses a security risk, supports political violence, respects the law and is prepared to live peaceably within the community they seek to join. I struggle much more with the proposition that political belonging should turn upon whether that person's ancestors came from Europe.

The Christian distinction matters. I can value Australia's inherited culture without treating that inheritance as racial property. I can support substantially controlled immigration without making skin colour a criterion of belonging. I can defend the contribution of European Australians without concluding that Australians of different ancestry possess lesser human or civic dignity.

There is also a consistency issue for me. I have written critically about the Voice and other policies that classify Australians politically according to ancestry, particularly where I believe that classification sits uneasily with equal citizenship. I cannot object to racial categorisation when government uses it in one direction, then embrace racial categorisation because it comes from a political movement whose concerns about immigration may overlap in part with my own.

That is where White Australia's stated racial emphasis and my own position part company. This is not a party I would join, but that moral judgment does not answer the constitutional question. In some ways, it makes the constitutional question more revealing.

What Government Has Actually Done

Part 5.3B does not permit a minister simply to prohibit an organisation because he dislikes its politics. Before an organisation can be specified as a prohibited hate group, the AFP Minister must be satisfied on reasonable grounds that it has engaged in, prepared or planned to engage in, assisted the engagement in, or advocated engaging in conduct constituting a hate crime within the statutory definition. The Minister must also be satisfied that listing the organisation is reasonably necessary to protect the Australian community, or part of it, from relevant social, economic, psychological or physical harm.

There are additional institutional steps. Advice must come from the Director-General of Security before the Minister can proceed. The Attorney-General must agree in writing, and the Leader of the Opposition must be briefed. The Parliamentary Joint Committee on Intelligence and Security may review the listing.

The consequences once an organisation is listed are nevertheless substantial. A person who intentionally remains a member of a prohibited hate group while knowing it is prohibited can face up to seven years' imprisonment, although the legislation provides a defence where the person proves they took all reasonable steps to cease membership as soon as practicable after becoming aware of the listing. Directing, recruiting for, financing, training with or providing specified forms of support to the organisation can attract substantially higher penalties.

This qualification matters. It would be inaccurate to say that the making of a regulation itself convicts every existing member of a crime. Chief Justice Gageler described the design more precisely in June when he said specification of an organisation “enlivens the operation of a range of offence provisions” in Division 114B. Those offences then operate according to their particular elements, including knowledge requirements.

The architecture remains significant. Government is no longer dealing solely with an assault, threat, act of intimidation or incitement committed by a particular person. An executive process first determines that the organisation satisfies a statutory description, and that designation then changes the criminal consequences attached to specified subsequent conduct by people associated with it.

That is the architecture now being tested.

The Commonwealth's Strongest Case

I do not think this article can fairly reduce the Commonwealth's argument to something like: Thomas Sewell has committed offences, therefore his political organisation should be banned. The case advanced by the Commonwealth is considerably broader than that.

The Government describes White Australia as the continuation or rebranding of the National Socialist Network and European Australia Movement.

Its official listing material says the Minister was satisfied on reasonable grounds that White Australia had engaged in conduct constituting hate crimes and that listing it was reasonably necessary to protect the community from social, psychological and physical harm. The Government's public reasons refer to racist propaganda, Nazi symbolism and slogans, harmful conduct toward people based on race, and the attack by members on Camp Sovereignty.

There is a related question here about prohibited symbols. I regard what occurred under Nazi rule, including the Holocaust, as profoundly evil, and nothing in this article is intended to minimise it. But I remain uneasy about government criminalising political or ideological symbols themselves. History contains other regimes responsible for immense persecution and mass death whose symbols have not necessarily received equivalent legal treatment. That raises a difficult question of principle: by what consistent standard does the State decide which symbols citizens may lawfully display?

My concern is again less about defending the symbol than about the power created by banning it. Symbols can intimidate, provoke and communicate deeply repugnant ideas, and their use may form part of evidence of unlawful conduct. But the symbol and the conduct are not necessarily the same thing. Once government acquires the power to prohibit the public display of particular symbols in specified circumstances because of what they represent, I think it is reasonable to ask where that principle ends. The comparison may seem remote today, but as a Christian I cannot entirely dismiss the question of what would protect the Cross, or another religious or political symbol, if a future political culture came to regard what it represents as sufficiently harmful.

The Parliamentary Joint Committee on Intelligence and Security then reviewed the listing. Its report was presented on 11 August 2026, and the Committee concluded that White Australia met the statutory criteria and that the regulation had been properly made. The Committee chair said the Committee was satisfied that White Australia had engaged in conduct constituting hate crimes and that listing was necessary to protect Australians from harm.

There is also established criminal conduct involving people who led White Australia's predecessor organisations. In 2023, Thomas Sewell and Jacob Hersant pleaded guilty to violent disorder arising from a 2021 incident at Cathedral Range State Park. They were among a larger group involved in confronting six hikers, damaging property and causing injury. The Victorian Court of Appeal described the offending as serious, while also accepting that it was open to the sentencing judge to place it at the “lower end of seriousness for offending of this type”.

Precision requires me to include what the same proceeding did and did not establish. The sentencing judge found that the offending was not planned and was spontaneous and reactive, and there was no evidence that the offending itself was politically or racially motivated.

Those facts can sit beside each other without contradiction. The offending was criminal and serious, but that particular conviction does not by itself establish that politically directed violence was the policy of the organisation.

Camp Sovereignty presents a different evidentiary picture. Four men associated with the former National Socialist Network have since pleaded guilty to violent disorder arising from the August 2025 attack on the Indigenous protest site. ABC reporting of the plea proceeding said the court heard that the men were part of a larger group that advanced on the camp carrying sticks and flagpoles despite being told to leave. The report said a number of people at the camp were injured.

Thomas Sewell separately pleaded not guilty to charges relating to the Camp Sovereignty incident and was committed in March 2026 to stand trial in the Victorian County Court. The allegations against him in that matter should remain described as allegations unless and until determined.

The Commonwealth is therefore not asking Australians to accept that nothing exists beyond provocative political speech. There are convictions, guilty pleas, serious allegations and intelligence assessments in the background of the listing. Any article that ignored them would present a distorted case.

The harder question is how those facts become organisational facts.

When Does Individual Conduct Become Organisational Conduct?

A violent person can belong to a political organisation. Several violent people can belong to the same organisation, and a violent person can lead one. None of those propositions, by themselves, establishes that violence is the policy, authorised method or attributable conduct of the organisation itself.

White Australia’s stated objects are relevant here. They say the organisation intends to advocate its immigration and population policies through “lawful political advocacy, education and community activity.” I have not found in those stated objects an instruction to engage in violence. That should count as evidence of the organisation’s formal position, just as I would expect the published constitution, platform or policies of any other political organisation to count.

Formal documents are not necessarily the end of the inquiry, but neither should they be discounted simply because I reject the political philosophy of the organisation expressing them. The same evidentiary rule should apply to everyone. Leadership directions, coordinated operations, use of organisational resources, planned mobilisation, repeated activity knowingly tolerated or encouraged by leaders, or subsequent endorsement of criminal conduct may provide evidence that actions by individuals should properly be attributed to the organisation itself.

The evidentiary bridge can therefore be crossed. My concern is that it still has to be crossed.

If a member of the Labor Party assaults someone, we do not ordinarily say the Labor Party committed the assault. If a Liberal politician commits an offence, the Liberal Party does not automatically acquire that offence as organisational policy. If an environmental activist becomes violent, it remains relevant to ask whether the organisation directed, facilitated, approved, encouraged or subsequently endorsed what occurred.

The same reasoning should apply to a racial nationalist organisation whose political philosophy I reject. Otherwise, association begins doing evidentiary work that association alone cannot perform.

That principle must also run in the opposite direction. If credible evidence establishes that White Australia, or a predecessor organisation whose conduct can properly be attributed to it, acted through its leadership or organisational structures to coordinate, facilitate, encourage or knowingly promote criminal violence, I should be willing to follow that evidence wherever it leads. Consistency does not mean granting an organisation immunity from adverse evidence because government is acting against it. It means applying the same rules of attribution, proof and organisational responsibility whichever conclusion the facts support.

When the Commonwealth Says the Group Itself Is the Harm

The High Court hearing brought the Commonwealth's case into sharper focus. Its argument is not simply that particular members of White Australia or its predecessor organisations have committed offences and that those offences should somehow be transferred to everybody associated with them. The Commonwealth's case goes to the character and operation of the organisation itself.

During the second day of the hearing, Justice Robert Beech-Jones asked whether the Commonwealth regarded White Australia as a modern manifestation of Hitler's Nazi movement. Commonwealth counsel Brendan Lim answered that it did. He argued that the organisation remained substantially the same movement despite its change of name and political-party form, and that its methods had to be understood in the context of an organisation conscious of legal boundaries and capable of operating close to them.

That matters because it leads to a more difficult argument than one based upon direct instructions to commit violence.

The Commonwealth argued that an organisation can itself contribute to future violence without a leader expressly ordering a particular person to carry out a particular attack. In that context Lim invoked what he described as “stochastic terrorism”, the risk that sustained extremist rhetoric and the demonisation of groups may contribute to lone actors or fringe adherents committing racially motivated offences. His argument reached its clearest formulation in the proposition that “the existence of the group itself is the source of harm.”

I think that is the Commonwealth's case at its strongest.

It also deserves to be taken seriously. Words can encourage, organise, intimidate and, in some circumstances, incite. That is true whether the speaker is a political organisation, a government, an activist movement or another institution with influence. But recognising that words can shape conduct is not the same as proving that particular words caused, authorised or encouraged particular unlawful acts. That connection still requires evidence.

An organisation therefore does not become harmless merely because its leaders understand where an explicit criminal instruction would cross the line. Nor should Australian law necessarily have to wait for a written order before organisational conduct can be examined. But if less direct speech is relied upon as evidence of responsibility for later violence, the causal and organisational connection should still be demonstrated rather than assumed.

The Terrorgram comparison considered earlier makes this harder still. Australia's existing terrorism laws already recognise that a decentralised organisation may advocate terrorism by producing propaganda intended to inspire attacks, even where an individual attacker has not received a conventional operational command. The proposition that organisational influence can extend beyond direct instruction therefore has an established place within Australia's existing terrorism framework.

But accepting that proposition does not end the inquiry. It defines it more precisely.

If the organisation itself may become the relevant source of harm, what establishes that causal connection, and how strong must it be before government may prohibit political association rather than prosecute unlawful conduct occurring within it? That question becomes especially important because the state is not a neutral observer outside the problem of institutional power. Governments and public institutions are also capable of causing harm through policy, enforcement and messaging. The existence of public authority does not remove the need for evidence, proportionality and restraint.

That question is different from asking whether extremist rhetoric can ever contribute to violence. It plainly can. It is also different from asking whether government may intervene before physical violence occurs. Threats, conspiracy, unlawful incitement and preparations for violence can already attract criminal liability.

The harder question is whether the cumulative conduct, advocacy and influence of an organisation can create a sufficiently serious prospective risk that its continued existence may itself be prohibited. The Commonwealth says Part 5.3B is designed for that space.

That may be a legitimate preventive function of government, but it is precisely why the threshold, the attribution of organisational conduct, the evidence relied upon and the safeguards around the decision matter so much. Once the legal proposition becomes not simply this person committed an offence, but this organisation itself has become the source of unacceptable future harm, the character of the decision has changed.

That makes the evidence used to reach such a consequential organisational judgment especially important.

The Evidence We Cannot See

There is an unavoidable limitation on what an outside writer can responsibly conclude about this listing. The public does not have access to everything considered by the decision-makers.

The Government's listing page expressly states that the decision was informed by both classified and unclassified agency information. The PJCIS report records that the Minister supplied the Committee with a security-classified Statement of Reasons and that the Committee held an in-camera hearing on 30 July.

That prevents me from responsibly declaring that no evidence connects White Australia, or the organisations the Commonwealth says it continues, with relevant unlawful conduct. There is public material supporting parts of the Commonwealth’s case, including conduct involving members and leaders of the former National Socialist Network and evidence of continuity in leadership between that organisation and White Australia. Some of that evidence remains contested, and allegations that have not been determined by a court must remain allegations.

There is also evidence I cannot independently examine. The Parliamentary Joint Committee on Intelligence and Security says the classified Statement of Reasons provided to it identified specific actions attributed to White Australia, including dates, times and, where relevant, social-media platforms, and that this material was important to its conclusion that the statutory threshold had been met. I therefore cannot responsibly say that the organisational case ends with what is publicly available.

But that limitation works in the other direction as well. Evidence that cannot be examined by the organisation, ordinary citizens or independent commentators necessarily limits the degree to which the government’s attribution can be tested publicly. That is not proof that the evidence is weak or that government acted improperly. Intelligence sometimes has legitimate reasons to remain classified, including the protection of sources, methods and ongoing investigations. But the existence of classified material cannot do evidentiary work for me that I am unable to verify for myself.

The tension becomes more significant because listing does more than express a government judgment about the organisation. It activates serious criminal offences relating to directing, membership, recruitment, training, funding and support, and the 2026 legislation also brought prohibited-hate-group offences within existing surveillance and telecommunications-interception frameworks. The consequences therefore extend beyond reputation or political disapproval into criminal liability and investigative powers.

That makes the balance between necessary secrecy and public accountability especially important. Where an executive designation changes the legal position of an organisation and the people associated with it so substantially, the public interest lies not only in protecting intelligence capability but also in ensuring that consequential exercises of state power remain capable of meaningful scrutiny.

I therefore cannot say that the organisational case is unsupported. Neither can I independently verify every element said to support it. Both statements belong in an honest examination.

Procedural Fairness, and What Still Remains

Another feature of the legislation remains significant to me. Part 5.3B expressly provides that the AFP Minister is not required to observe procedural fairness in deciding whether the statutory conditions for listing have been met. The Director-General of Security is likewise relieved of procedural-fairness requirements when providing the prerequisite advice. The legislation also states that a person need not first have been convicted of a hate crime before the Minister may be satisfied that an organisation engaged in the relevant conduct.

That does not mean there is no accountability or judicial scrutiny at all. The Minister remains bound by the statute and must be satisfied on reasonable grounds. The Attorney-General must agree, the Opposition Leader must be briefed, Parliament retains its role concerning delegated legislation, the PJCIS may review the listing, and questions of legal validity can reach a court. The present High Court proceeding demonstrates that the Executive does not possess the final word on the constitutional validity of the scheme.

The more precise concern is therefore not that there is “no review”. It is that procedural fairness before the executive listing decision is expressly excluded, while the safeguards that remain operate in different ways and answer different questions.

Perhaps that combination is sufficient when government is acting preventively against an organisation it believes poses serious harm. Perhaps the seriousness of prohibiting political association requires something more.

That question matters in a political culture in which the boundaries of labels such as “hard right”, “far right” and “extremist” are themselves contested. Views about marriage, abortion, sex, gender and religious authority that many Christians understand as longstanding elements of orthodox belief now sit within political debates where conservative Christian movements are sometimes described using language once associated more readily with political extremism.

That does not make every such description illegitimate, nor does it mean traditional Christian belief and violent extremism are equivalent. It does mean the distinction between political description and a legal or security classification should remain clear.

Political rhetoric can be robust. But if terms such as “extremist” ever begin carrying consequences beyond political criticism, the evidentiary threshold must come from demonstrated conduct, not simply from where an organisation sits within a shifting political vocabulary.

That is one of the reasons the present challenge matters.

Why the Communist Party Case Keeps Returning

The comparison with the Communist Party should not be overstated. The Communist Party Dissolution Act 1950 and Part 5.3B are different laws, enacted in different constitutional settings and supported by different asserted heads of power. The modern Commonwealth relies significantly upon the external affairs power and Australia's international treaty obligations, arguments that did not underpin the 1950 scheme.

The present legislation also does not reproduce the Communist Party Act word for word. The statutory architecture is different, the role given to the Minister is different, and individual criminal liability under Part 5.3B remains something ultimately determined by a court according to the elements of the particular offence.

Yet the Communist Party Case kept returning during the High Court hearing because underneath those differences sits a question the older case never allowed government to avoid simply by invoking danger: where does constitutional power come from, and who gets to determine the facts that make an organisation sufficiently dangerous for extraordinary legal consequences to follow?

The plaintiffs rely heavily upon Australian Communist Party v Commonwealth for that reason. Their argument is not that the Communist Party and White Australia are morally or historically equivalent. Nor does the analogy depend upon either organisation being harmless. The claimed constitutional principle is that an assessment of danger cannot itself enlarge Commonwealth power.

The oral hearing made the comparison particularly revealing. During the second day of argument, Justice Robert Beech-Jones asked the Commonwealth whether White Australia represented a greater threat to Australian nationhood than the Communist Party had during the period surrounding the 1950 legislation. Commonwealth counsel distinguished the historical circumstances but described both as presenting great threats. I think that exchange matters because it strips away one possible misunderstanding about the 1951 precedent.

The Communist Party Case was not important because the judges thought communism benign. The legislation itself arose in an atmosphere of profound concern about revolutionary communism, international conflict and national security. The constitutional question remained whether those concerns supplied or enlarged a legislative power that the Constitution had not otherwise given the Commonwealth.

Seventy-five years later, the factual circumstances and statutory machinery are different, but the underlying question has not entirely disappeared.

The Commonwealth now says White Australia presents an organisational danger capable of extending beyond individually prosecutable acts. It says the law responds to that danger through ministerial satisfaction based upon statutory criteria, security advice and institutional safeguards. The plaintiffs respond that government cannot resolve the constitutional problem simply by placing the decisive characterisation of the organisation in executive hands.

That disagreement is more precise than saying Australia is simply repeating 1951, because it is not. The better question is what, if anything, the constitutional principle established in 1951 requires when Parliament uses a different legislative structure, relies upon different heads of power, and confronts a different kind of political organisation.

Communism challenges much of what I believe for reasons very different from my objections to racial nationalism. Its materialist anthropology, the historical record of communist governments suppressing religious conscience, and its tendency toward concentrated political power conflict deeply with my Christian understanding of the person and of limited government. White Australia’s racial conception of political belonging challenges me from another direction.

There is an irony in the present case that I do not want to overstate. The Australian Labor Party is not the Communist Party, and democratic socialism is not communism. Labor's National Constitution nevertheless still describes the ALP as a democratic socialist party, while the Australian Fabians describe themselves as an independent left-leaning think tank that has historically looked to the Australian Labor Party as a party through which social democratic principles and values can be achieved. They also say they seek to influence the ideas and policies of political parties, “especially the Australian Labor Party”. I have explored that intellectual and institutional history elsewhere.

Against that background, history has supplied an unusual symmetry. An Albanese Labor Government is defending a legislative architecture that permits the executive government to prohibit political organisations and attach serious criminal consequences to continued forms of association, while the constitutional challenge repeatedly leads the High Court back to the Communist Party Case. The historical ideologies are different, the legislation is different and the asserted constitutional powers are different. The irony does not establish anything about Labor's motives or lineage; it simply makes the underlying question about the limits of state power over political organisation harder to miss.

That is precisely why I do not need to sympathise with communism, racial nationalism or any other political philosophy to care about the principle. A constitutional restraint is most valuable when it restrains a government whose purposes we might otherwise be tempted to trust. Both can be wrong without being morally interchangeable, and neither conclusion answers the constitutional question.

If anything, the hearing has made the question more exact: does the seriousness of the threat establish the validity of the power being exercised against it, or must the power first be independently found in the Constitution and kept within its limits regardless of how dangerous government believes the organisation to be?

That is why the Communist Party Case keeps returning.

Three Constitutional Questions in Plain English

There are technical legal arguments before the High Court that I do not pretend to resolve as a lay writer, but their underlying questions can be expressed more simply.

The first concerns Commonwealth legislative power. Parliament does not possess a general power to legislate upon every subject it regards as important. Part 5.3B expressly states that one of its objects is to give effect to Australia's obligations under specified provisions of the International Covenant on Civil and Political Rights and the International Convention on the Elimination of All Forms of Racial Discrimination. The Commonwealth relies upon the external affairs power and advances additional constitutional arguments in support of the law.

The plaintiffs argue that those sources of power do not extend far enough to sustain this particular executive-proscription scheme. That argument requires an important distinction. The ICCPR and CERD do not themselves override the Australian Constitution or automatically become Australian domestic law. Their constitutional relevance comes through powers contained within the Constitution itself, particularly the external affairs power in s 51(xxix), which can support Commonwealth legislation implementing Australia's international obligations.

The plaintiffs' position is therefore not that Parliament has no capacity to legislate against racism, antisemitism or violence. It is that the Commonwealth must still establish constitutional authority for the particular mechanism it has chosen. International treaty obligations do not remove that requirement. The question is whether the powers relied upon extend far enough to support this executive-proscription regime and whether the regime remains within the other limits imposed by the Constitution.

The second issue concerns political communication. Australia does not have an American-style constitutional First Amendment. The High Court has instead recognised an implied freedom of political communication arising from the system of representative and responsible government created by the Constitution. The present question is whether Part 5.3B places an impermissible burden upon that constitutional system.

White Australia argues that a regime capable of disabling a prospective political party and attaching criminal consequences to continued association creates a severe burden. The Commonwealth says the law protects Australians from organisations connected with hate crimes and therefore protects, rather than undermines, the conditions in which citizens, including minorities, can safely participate in public life.

Several State Attorneys-General intervening in support of the Commonwealth have advanced a related argument. Queensland and Victoria, in particular, characterise the burden on political communication as incidental and comparatively slight because Part 5.3B does not operate simply by reference to an organisation's political viewpoint, but by reference to conduct or advocacy falling within the statutory hate-crime framework.

That distinction matters, but it does not remove speech from the question altogether.

The statutory framework itself reaches forms of advocacy and expressive conduct. For me, as a traditional Christian, that makes the boundary especially important. I do not claim that orthodox Christian teaching is presently equivalent to the conduct alleged against White Australia, nor that the Commonwealth is attempting to make it so. My concern is more fundamental: in a culture where traditional religious beliefs about sex, marriage, sexuality and human identity can themselves be described as hateful, the legal distinction between an unpopular belief and unlawful advocacy must remain clear, objective and difficult to manipulate.

The Free Speech Union has sought to participate as amicus curiae, arguing that the seriousness of the burden upon political participation should affect the intensity of constitutional scrutiny. Its involvement is not an endorsement of White Australia's politics.

The third issue concerns judicial power. The plaintiffs argue that the Minister is doing more than making an administrative classification. In deciding that an organisation has engaged in or advocated conduct meeting the statutory hate-crime criteria, and then prohibiting that organisation on the basis of that conclusion, they say the Executive is making a determination with consequences sufficiently punitive in character to intrude upon judicial power.

The Commonwealth sees the structure differently. It says specification is a prospective regulatory decision, not a finding of criminal guilt. Listing the organisation does not convict any individual; it changes the legal circumstances within which the offences created by Parliament subsequently operate, while a court must still determine whether a person charged with membership, direction, recruitment, funding or another offence has satisfied every element of that offence.

The hearing therefore sharpened the question from one of labels to one of substance: at what point does an executive decision that activates serious criminal consequences cease to be merely regulatory and begin to resemble the kind of determination the Constitution reserves to a court?

Those are legal questions for the High Court. Underneath them sits a broader civic question about where Australians are prepared to place consequential power over political association.

Bad Ideas, Criminal Conduct and Free Citizens

My instinct remains that the ordinary answer to a bad political idea should be a better political argument. If a party believes European ancestry should possess particular political significance in modern Australia, I would rather that proposition be heard clearly enough for Australians to examine it, challenge it and decide whether they accept it.

Personally, I reject that proposition. But I would rather encounter the lawful political argument, test it and explain why I disagree with it than rely upon organisational proscription to prevent it being advanced collectively in the first place.

That position cannot rest on a romantic assumption that bad ideas always disappear in open debate. History plainly shows otherwise. Communism, fascism and other authoritarian movements have attracted enormous followings and, through different combinations of revolution, electoral success, political organisation and coercion, transformed governments and societies. Political freedom necessarily carries the possibility that citizens will sometimes be persuaded by ideas that are false or harmful.

The case for freedom therefore rests on something harder than confidence that truth always wins quickly. It rests upon the question of who is entrusted with political judgment.

Representative government assumes that citizens possess enough moral and political agency to hear competing claims, examine them and choose among them. That must include the freedom to hear political arguments we may strongly reject, to challenge them publicly, to argue against them, to support them where the law permits, and ultimately to decide at the ballot box whether the people advancing them deserve political representation.

That freedom is not absolute. Political organisation cannot immunise assault, threats, conspiracy, unlawful incitement or preparations for violence. Where defined criminal conduct occurs, the State has both the power and responsibility to act, and it need not wait until somebody is physically injured where an offence has already been committed.

But organisational proscription raises a different question. It does not merely punish a particular unlawful act. Once an organisation is prohibited, continued knowing membership and various forms of activity intended to sustain it can themselves attract serious criminal penalties. Where the organisation also seeks to operate as a political party, that necessarily affects its capacity to place its arguments before the public through organised political activity.

That is where my concern about political agency becomes more difficult. If an organisation's ideas are wrong, I want Australians to be able to hear enough of those ideas to understand them, expose their weaknesses, rebut them openly and decide for themselves whether they deserve support. I do not want government performing that act of political discernment for citizens merely because the ideas are offensive or objectionable.

That concern is also shaped by the information environment through which citizens encounter controversial political movements. I have written elsewhere about whether Australians can form independent judgments inside a concentrated information environment in which government communications, major media organisations and other institutional voices all help shape what citizens see. I am not saying journalists simply repeat whatever government says, nor that reporting on White Australia should ignore evidence of violence, racist propaganda or Nazi symbolism.

But once proscription materially restricts an organisation's capacity to organise and put its own case, it is reasonable to ask how much of that case citizens will encounter directly, rather than through government statements, intelligence summaries, media reports and political opponents. The broader democratic principle is that citizens need enough access to competing lawful claims to discern them for themselves, especially when the subject is uncomfortable and the speaker unpopular.

None of that answers what should happen where the organisation itself can be shown to have engaged in, facilitated or advocated criminal conduct of the kind Parliament has defined. That is precisely why the evidentiary distinction matters. The question is not simply whether the political ideas are objectionable, but what conduct has been established and whether it is sufficient to justify moving from prosecution of unlawful acts to prohibition of the organisation through which those political ideas are collectively advanced.

The more difficult question is what happens when government moves from prosecuting defined unlawful acts committed by particular people to determining that an organisation itself has crossed a threshold justifying prohibition. Part 5.3B requires more than a general prediction of danger: the Minister must be satisfied on reasonable grounds about specified organisational conduct or advocacy and must also conclude that proscription is reasonably necessary to protect the community from the harms identified by the legislation.

But precisely because that executive determination changes the legal status of an organisation and activates serious consequences for people associated with it, the threshold, evidentiary basis and safeguards surrounding the decision matter enormously. As far as legitimate national-security considerations permit, Australians should be able to understand enough of the case being made to scrutinise it, challenge it and decide whether such an extraordinary exercise of government power has been justified.

That principle does not depend upon assuming improper motives on the part of the present government. It matters because governments change, political priorities change and institutional judgments can be wrong. Citizens, journalists, political parties and organisations should be able to question an exercise of state power even when they have no sympathy at all with the organisation against which that power has been used.

The distinction I would therefore make is not simply between “speech” and “violence”. Threats, unlawful incitement, conspiracy and preparations for violence may themselves constitute criminal conduct. The more difficult distinction is between conduct capable of being proved against individuals through ordinary criminal processes and an executive determination that the conduct, advocacy and character of an organisation are sufficient to justify changing the legal status of the organisation itself.

Part 5.3B occupies that difficult territory.

Every Person in This Story

The constitutional language can make it easy to forget the human beings underneath the case. My Christian faith does not allow me to do that.

The Jewish Australian confronted with Nazi imagery bears the image of God, as does the Aboriginal Australian attacked or intimidated because of race and the migrant told that ancestry prevents him from truly belonging in the country he calls home. Their dignity is not an abstraction, and government has a legitimate responsibility to protect people from genuine violence and criminal intimidation.

Thomas Sewell also bears the image of God, as do the members of White Australia whose political beliefs I reject. So does the Minister exercising the statutory power, the intelligence officer preparing an assessment, the police officer investigating an offence, the parliamentarian reviewing a listing and each justice considering the constitutional limits of the legislation.

Equal human dignity does not mean equal moral innocence. The imago Dei is not an acquittal. It is the reason the victim matters, the reason the offender is accountable, the reason evidence matters and the reason guilt should not simply be inherited through association.

I can say racial nationalism is wrong without saying the racial nationalist therefore has no rights. I can reject communism without concluding that a communist therefore has no political voice. I can condemn violence wherever a court establishes it without automatically treating every person associated with the offender as personally guilty of the same act.

Those principles do not conflict for me. They arise from the same understanding of the human person.

Fallen Organisations and Fallen Governments

There is another part of my Christian worldview that prevents me from romanticising either side of this dispute. Political movements are made of fallen people, and people gathered around racial identity are capable of pride, hatred, intimidation, self-deception and violence. Organisations can become corrupted, leaders can exploit grievance, and communities can reinforce their members’ worst impulses. The Commonwealth is right to take that possibility seriously. Christians should not imagine that merely calling something a political movement makes it morally safe or institutionally trustworthy.

But the same Christian anthropology must also be applied to the institutions exercising power over it. Government does not cease to be composed of fallible human beings merely because its stated purpose is protection. Ministers can make mistakes, intelligence assessments can be incomplete, institutional judgments can harden into assumptions, and powers created for serious cases can later be exercised in circumstances their original authors did not anticipate.

Government is therefore not morally or institutionally exempt from the caution I would apply to the organisation it seeks to prohibit. Intelligence agencies, parliaments, courts, churches, journalists and writers are all made up of people capable of wisdom and courage, but also error, self-interest, conformity and misuse of authority. The Christian account of human nature does not permit me to place unlimited confidence in one institution merely because I have good reason to distrust another.

That leads back to a question that has increasingly become part of how I examine institutional power:

What does this make fallen people capable of doing to one another?

I do not need to accuse today’s Minister of sinister intentions to ask that question. I have no evidence that the present government intends to use the prohibited hate-group regime against ordinary Christians, peaceful environmentalists, trade unions, anti-war activists or any other lawful political association, and responsible analysis should not imply otherwise.

My concern is about capability rather than present intent. What does the architecture permit when ministers change, political cultures shift, institutional interpretations develop, or a future government confronts a different organisation it regards as socially dangerous? What safeguards remain when the people exercising the power are less restrained, less careful, or simply more convinced of the righteousness of their own cause?

Good intentions matter, but they are not permanent constitutional safeguards. A sound constitutional order should not depend upon always having wise ministers, cautious officials or governments whose political instincts we happen to trust. Durable limits matter precisely because governments change, institutions evolve and powers tend to outlive the circumstances that first justified them.

That is why constitutional protections are often most revealing when the first person invoking them is someone we have little instinct to defend.

The Party I Would Not Join, and the Power I Still Question

There is a temptation when discussing cases like this to assume that defending a constitutional principle somehow lends moral support to the person invoking it. I do not accept that.

I do not need to believe White Australia's racial politics are good in order to question the legal power being exercised against it, nor do I need to pretend that people associated with its predecessor organisations have clean hands. Where courts have established criminal conduct, I should call it criminal conduct. Where allegations remain unresolved, I should identify them as allegations. Where evidence relied upon by government cannot be examined publicly, I should acknowledge the limitation that places upon my analysis rather than fill the gap with assumptions.

The same discipline should apply to government. Where safeguards exist, I should acknowledge them. Where procedural fairness has expressly been excluded, I should say so. Where the law contains knowledge requirements and defences for membership offences, I should not describe it more broadly than it actually operates. Where the Commonwealth advances a serious argument that an organisation can itself create conditions conducive to later violence, I should engage that proposition in its strongest form.

Balance does not require pretending both sides are equally right. It requires testing both by the same standard.

That principle matters to me precisely because some of the concerns that may draw Australians toward groups like White Australia are not, in themselves, illegitimate. Australia can debate immigration levels, integration, security screening, cultural continuity and the preservation of its inherited institutions without becoming a racial state. Indeed, refusing to discuss those questions honestly may leave the territory increasingly open to people willing to offer racial answers instead.

My disagreement therefore lies neither with the proposition that Australia has an inherited civilisation worth stewarding nor with the proposition that immigration must be controlled. It lies with making ancestry itself the political measure of who properly belongs.

That is a political and theological disagreement I am prepared to argue openly. The remaining question is whether my disagreement should also determine how much coercive power I am prepared to give government over the people making the opposing case.

What I Am Asking

The High Court now has the responsibility of answering questions of constitutional law. I am left with a related set of questions that I think Australians should be willing to consider regardless of how the Court ultimately rules.

I am asking what evidence should be required before criminal acts committed by particular members are properly attributed to the organisation to which they belong, and how organisational responsibility should be established where leadership, coordinated activity or organisational structures genuinely facilitate violence.

I am also asking about the separate threshold Parliament deliberately created below the terrorist-listing threshold. The Government's explanation is now clearer: Part 5.3B was designed to reach some organisations whose conduct and advocacy were considered harmful but did not meet the terrorist-organisation threshold.

The question I am left with is what, precisely, crosses that different threshold, why organisational proscription is the appropriate response, and whether the safeguards are proportionate to consequences extending to membership, recruitment, funding and support.

When government argues that an organisation's sustained activity increases the likelihood of future violence, how strong should the connection between advocacy and anticipated harm have to be before political association itself may be prohibited? How should citizens evaluate classified material that may genuinely require protection but simultaneously limits independent scrutiny of the justification for proscription?

When continued knowing membership can expose a person to years of imprisonment, should an organisation have no statutory entitlement to procedural fairness before the executive decision that activates those consequences? Do Director-General of Security advice, Attorney-General agreement, Opposition briefing, parliamentary scrutiny, PJCIS review and subsequent judicial supervision provide a sufficient combination of safeguards, or should the most consequential determination sit somewhere else?

The Communist Party Case raises another question. What does that precedent continue to require when the organisation before the Court is not communist but racial nationalist, and when Parliament now relies upon constitutional powers and international obligations that place the modern case in a different legal context?

Perhaps the most uncomfortable question is also the simplest: would I endorse the same legal principle if the political organisation before the Court held beliefs closer to my own?

That question cuts both ways. If I reject guilt by association when it is directed at Christians, parents, medical dissenters or other groups whose treatment I have questioned through these pages, I cannot embrace it simply because the association now points toward people whose worldview I reject. But if the evidence establishes genuine organisational responsibility for violence or criminal intimidation, I cannot hide behind free speech merely because I distrust government power.

The standard cannot change with the defendant.

The concern that first led me into this issue was simple: bad precedents can outlive bad actors. I still believe that, but the present case has led me to add something to it. Good constitutional principles must also survive our dislike of the people invoking them.

Bad ideas should be exposed and answered. Crimes should be prosecuted. People should be protected from violence and intimidation. Nations should be able to steward their borders and cultural inheritance without reducing citizenship to race. Political arguments should ordinarily be answered with political arguments, and when government asks for the power to go further, it should be prepared to explain why that additional power is necessary, where its boundaries lie and what prevents a future government from using it differently.

That is not a defence of White Australia. It is an examination of Australia, and of what kind of constitutional culture we intend to preserve when the person asking for its protection is someone we would rather not defend.

“Prove all things; hold fast that which is good.”— 1 Thessalonians 5:21

Testing an idea does not require accepting it. Sometimes it is the only way to understand clearly why it should be rejected.

Thanks for reading.

God Bless,

Mark