The White Australia Party’s constitutional challenge to the federal government’s “hate groups” legislation and its ban under the laws has been accepted by the High Court, setting the stage for one of the most consequential rulings in decades.
At a directions hearing in Canberra on Thursday Justice Jayne Jagot determined the High Court would hear the landmark case in September, while an application for an injunction providing temporary protection from prosecution will be heard at an interlocutory hearing in early June.
The White Australia Party and Thomas Sewell, representing 1,788 former party members, launched legal action on Friday, the same day as Home Affairs Minister Tony Burke announced it has been officially listed as a “prohibited hate group” under the Combatting Antisemitism, Hate and Extremism (Criminal and Migration Laws) Act 2026, which was passed by both major parties after the Bondi Islamic terrorist attack.
The plaintiffs have also filed documents seeking injunctive relief that would prevent the Commonwealth from applying the prohibited hate groups provisions of legislation until the court has ruled on their constitutional validity.
Court documents show the White Australia Party is challenging the laws on the grounds that they “authorise proscription of a political party by executive designation”, “burden the freedom of governmental and political communications”, and exclude the plaintiffs from the “political life of the nation”, with repeated references to a famous 1951 case where the High Court ruled parliament could not bypass the Constitution by banning the Australian Communist Party.
“One key purpose of representative government is to accommodate the full spectrum of political debate. What is poison to one citizen is tonic to another. To suppress the political debate and criminalise opposing political ideologies is not a legitimate constitutional purpose,” the documents state.
“Such proscription ultimately leads to the dismantling of the very system itself. The electorate alone, and not the legislature, the executive nor the judiciary should decide such issues in a system of representative government.
“The legislation’s objects, while framed as community protection and implementation of international obligations, in substance authorise the suppression of entire political organisations and their communications. Such a purpose is not compatible with the maintenance of the constitutionally prescribed system of representative and responsible government.
“The challenged provisions in short operate as a doorway to tyranny, by empowering the Executive to name, suppress and criminalise political opponents and opposing views.”
Mr Sewell, who raised $150,000 to fund the legal challenge when the laws were announced in January, said on Monday that the case was of particular importance as it would determine whether it remained legal for White Australians to organise politically to ensure their survival as an ethnic group.
“The case for political rights for White Australians is ultimately a question as to whether we are to become second class citizens in our own country, or whether the Constitution affords us the legal protection to advocate for our own right to exist,” he said.
“Most Australians have not yet fully understood the gravity of the legislation that the current Government has passed. If unchallenged it means that only ‘protected classes’ of people in Australia have the privilege of political communication.
“The High Court will ultimately have to make a decision as to whether we live in a Multicultural tyranny, in which our rights end where the offence of others begins, or whether White Australians can lawfully assert their Will on Parliament.”
White Australia was officially listed as a prohibited hate group after Home Affairs Minister Tony Burke, acting on advice from intelligence agency ASIO, determined it had committed a series of alleged “hate crimes”.
The legislation, which legal experts have warned is open to “egregious abuse”, allows the government to list a group if the minister determines it has “engaged in, prepared or planned to engage in, or assisted the engagement in, conduct constituting a hate crime”, based on its own definition of a “hate crime”, which can have occurred before the laws commenced, with no criminal convictions or procedural fairness required.
According to the official listing, Mr Burke made his determination on the White Australia Party based on the alleged promotion of racist propaganda, an alleged clash with left-wing extremists in Melbourne, Nazi salutes allegedly made in the past, the alleged public incitement of hatred at protests, and alleged leaflet drops.
The listing also states that the decision to specify White Australia as a “prohibited hate group” was “informed by classified and unclassified information provided by relevant agencies”, and states “White Australia’s ideology is grounded in racism and the notion of White supremacy”.
“The specification will prevent White Australia from legitimately operating in Australia by criminalising certain forms of engagement with the organisation. This will reduce White Australia’s overall impact and influence in Australian society,” the listing states.
“This is important to protect the Australian community from social, psychological and physical harm.”
The ban means that from midnight on May 15, directing, joining, recruiting, training, funding or supporting White Australia became criminal offences with penalties of up to 15 years’ imprisonment.
Header image: Left, Thomas Sewell (supplied). Right, the High Court of Australia in Canberra (HCA).
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