White Australia Party loses injunction bid against Commonwealth Hate Group Listing
White Australia Party loses injunction bid against Commonwealth Hate Group Listing: Constitutionality to be determined in September
On 3 June 2026, Chief Justice Gagelar of the High Court declined to grant an injunction suspending the operation of the Commonwealth’s ‘hate group’ proscription regime until a constitutional challenge to the legislation is heard in September this year. The challenge is brought by the White Australia Party and Thomas Sewell, its National President (‘The Applicants’). Mr Sewell is also the former leader of the now disbanded National Socialist Network (‘NSN’).
Background
The impugned law is the Combatting Antisemitism, Hate and Extremism (Criminal and Migration Laws) Act 2026 (Cth) (‘the Act’) which the Commonwealth passed in response to the Bondi terror attack.[1] Relevantly, the Act permits the Minister to ban an organisation if the Minister believes that the organisation has ‘incited racial hatred’, whether or not any members have been proven to have done so by a court, whether or not the conduct was legal at the time the Minister believes the conduct occurred.[2] There is no judicial oversight or procedural fairness.[3] It is sufficient for the Minister to exercise the powers if the Minister believes it is necessary to protect the community from ‘psychological harm.’[4] Once the group is proscribed, a series of offences apply not just to members of the group, but to certain conduct of non-members, including the provision of ‘support’ to the group.[5] These offences range from 7 to 15 years imprisonment.
Many civil society groups have criticised the legislation, including QCCL, by submission available here.[6] It remains QCCL’s position that it is impermissible in a liberal democracy for the executive, totally unrestrained by judicial supervision, to unilaterally criminalise speech acts where there is no connection with actual or intended violence. The potential consequences of the scheme are far-reaching. Professor Anne Twomey for instance, Professor Emerita of Constitutional Law at UNSW, has opined that the powers could be used by a government to ban political parties, including their opposition.[7] As the White Australia Party’s constitutional challenge demonstrates, this appears to have come to pass.
The injunction and constitutional challenge
The Home Affairs Minister has frankly admitted that the law was passed with the NSN in mind.[8] In response the NSN disbanded and the power was not exercised against them.[9] Then on Anzac Day, its former leaders applied to the AEC to register a ‘White Australia Party.’[10] On 15 May 2026 the White Australia Party was banned under the regime as a ‘successor,’ to the NSN, although ironically the NSN itself is not proscribed.[11] That same day the party’s constitutional challenge was filed.[12] The trial is set down for September this year.[13]
The matter before the Chief Justice was an application for an injunction restraining the Commonwealth from imposing the consequences of the ban until the validity of the legislation had been determined in September – that is, putting the leaders of the White Australia Party or the 1,778 members of the public who endorsed the AEC registration in prison.[14] The Applicants challenge the Act on three grounds:
1. That no constitutional head of legislative power authorises the enactment;
2. That the impugned provisions impair the implied freedom of political communication; and
3. That the Act vests punitive powers in the Executive in violation of the separation of powers.
The Chief Justice observed, consistently with the landmark case of Castlemaine Tooheys, that the judiciary should defer to the legislature until the validity of the impugned legislation had been fully determined, unless the potential harm to the applicants was ‘irrevocable and irreparable.’[15] Past cases establish that examples of this kind of harm would include the destruction of world heritage, the liquidation of valuable assets and deportation in circumstances where a migrant would never be able to re-enter Australia.[16] The harms identified by the Applicants here were the criminalisation of the 1,778 electors who had endorsed the party for registration, the destruction of the party as a political association and the chilling effect on public discourse.[17] The Chief Justice acknowledged that those harms were real, but they were not ‘irrevocable’ in the Castlemaine Tooheys sense.[18] His Honour considered that if the impugned legislation was ruled invalid in September, then the harm would be reversed, but if it was not, then any harm was inevitable and would only be deferred by any injunction.[19] Therefore, there were not sufficiently compelling reasons to justify a transgression of the separation of powers.[20] His Honour observed that in the Communist Party Case Dixon J restrained the seizure of the Communist Party’s assets, but left the criminal provisions in operation, despite the ban’s subsequent invalidity.[21]
The judgement is a fairly orthodox application of public law principles. Its significance is in the Chief Justice’s acknowledgement of the effects of the Act. It not a mere hypothetical to say that if the legislation is upheld, that being a member of a political party in Australia can result in a serious term of imprisonment, if the executive considers that at some point its leaders have incited racial hatred. Nor does a member of the public need to have actively participated in the Party, or be directing its activities, or to have personally incited racial hatred. It is enough to have endorsed that party for registration by the AEC as this would meet the definition of ‘providing support’ for in the Act. His Honour felt the need to confirm explicitly that the refusal of the injunction did not prevent Mr Sewell from continuing to receive advice and representation from his legal counsel.[22] The fact that this was ever in doubt reveals the dangerous path this nation is heading down. It is well to remember that the entire process of proscription begins on a recommendation to the Minister by ASIO, an agency which operates largely in secrecy and without the judicial restrains imposed upon ordinary police.
Whatever one thinks about Mr Sewell and his associates, this legislation is of general application. It is not the ‘Nazi Disestablishment Act.’ It can be exercised against any controversial group, for any conduct however far in the past, on the recommendation of a secret police force. This view is not shared only by radical civil libertarians. The Greens opposed the legislation due to its obvious implications for the Gaza protest movement.[23] Similar laws were used to list Palestine Action Group in Britain as a terrorist organisation, in the same league as ISIS, for breaking into an RAF base and graffitiing an aircraft with spray-paint.[24] Liberal democracies are seldom overthrown by revolution, they die incrementally. Every law that suspends liberal-democratic principles, is treated as an exception in response to a crisis. But if enough exceptions are introduced eventually they must become the rule. The Crisafulli government’s criminalisation of the phrase ‘from the river to sea’ and Christopher Minn’s unconstitutional protest restrictions in NSW show that the process is well underway.[25]
We are living in truly bizarre times. The ALP is banning political parties, while open Nazis are making spirited defences of liberal democracy in the media.[26] Obviously, racism and antisemitism are evils that reasonable people do not wish to see flourishing in the community. But are they such great evils to justify abolishing liberal democracy itself? Are we any better than the nazis if we imprison political dissidents for speech acts on executive action? Is it even possible to ban an ideology? Our position remains that it is safer to provide extremists with a peaceful outlet for their views and that the proper way to defeat those views is through debate and electoral politics, not criminal sanctions. While exposure to these views will undoubtedly cause distress to some members of the community, that is the price to be paid for living in a free society.
As Castlemaine Tooheys demonstrates, it is entirely possible for litigation where an injunction is refused, to go on to succeed at trial. Hence, this judgement says nothing about what the outcome will be in September. We await that decision with great anticipation.
Chief Justice Gagelar’s reasons are available here: White Australia Party Inc v The Commonwealth [2026] HCASJ 17.
John Birrell
QCCL Treasurer
[1] See generally Criminal Code 1995 (Cth) Part 5.3B.
[2] Criminal Code 1995 (Cth) ss 114A.3(2), 114A.5(4), 114A.3(1)(b).
[3] Criminal Code 1995 (Cth) ss 114A.4(4)-(5).
[4] Criminal Code 1995 (Cth) s 114A.4(1)(b).
[5] See generally division 114B.
[6] https://www.amnesty.org.au/rushed-hate-and-extremism-bill-missed-the-opportunity-for-more-comprehensive-protections-and-lacks-critical-safeguards/; https://www.ohchr.org/sites/default/files/documents/issues/terrorism/sr/statements/20260115-un-sr-ct-submission-australia-hate-bill.pdf; https://humanrights.gov.au/our-work/submissions/rights-and-freedoms/combatting-antisemitism,-hate-and-extremism-bill-2026; https://humanrights.gov.au/about-us/media-centre/speeches/hugh-de-kretser/parliamentary-joint-committee-on-intelligence-and-security-inquiry-into-the-combatting-antisemitism,-hate-and-extremism-bill-2026-opening-statement; https://www.hrlc.org.au/app/uploads/2026/01/SUB-ReviewAntisemitismHateExtremism-HRLC-final.pdf.
[7] Anne Twomey, ‘Banning hate groups in Australia,’ Constitutional Clarion (YouTube, 18 January 2026) https://www.youtube.com/watch?v=PYn59UqReDE.
[8] Tony Burke (Minister for Home Affairs), Press Conference, Canberra (12 January 2026) https://www.pm.gov.au/media/press-conference-canberra-12-january-2026.
[9] Neo-Nazi Groups to Disband Ahead of Proposed Hate Speech Laws,’ SBS News (online, 13 January 2026) https://www.sbs.com.au/news/article/neo-nazi-groups-say-they-will-disband-ahead-of-introduction-of-proposed-hate-speech-laws/gogey8rsa
[10] White Australia Party Inc v The Commonwealth (2026) HCASJ 15 (Jagot J) [2] (‘White Australia Case (Directions Hearing)’).
[11] Criminal Code (Prohibited Hate Group - White Australia) Regulations 2026, https://www.legislation.gov.au/F2026L00583/asmade/text
[12] Tony Burke, ''White Australia' Listed as a Prohibited Hate Group,' (Media Release, 15 May 2026) https://www.tonyburke.com.au/media-releases/2026/white-australia-listed-as-a-prohibited-hate-group.
[13]White Australia Party Inc v The Commonwealth (2026) HCASJ (Gagelar CJ) [8] (‘White Australia Case (Injunction Hearing)’).
[14] White Australia Case (Directions Hearing) [2].
[15] White Australia Case (Injunction Hearing) [18]-[19]; Castlemaine Tooheys Ltd v State of South Australia (1990) 90 ALR 371.
[16] Richardson v Forestry Commission and Anor (1987) 61 ALJR 528; Australian Communist Party Case v The Commonwealth (unreported, High Court of Australia, 2 November 1950) at 2-3; Minister for Immigration, Citizenship and Multicultural Affairs v MZAPC (2024) 302 FCR 159.
[17] White Australia Case (Injunction Hearing) [21].
[18] White Australia Case (Injunction Hearing) [22].
[19] White Australia Case (Injunction Hearing) [22].
[20] White Australia Case (Injunction Hearing) [26].
[21] White Australia Case (Injunction Hearing) [19].
[22] White Australia Case (Injunction Hearing) [25].
[23] Sara Tomevska, 'New hate laws have passed parliament. What do they actually do?’ ABC News (online, 21 January 2026) <https://www.abc.net.au/news/2026-01-21/what-will-new-hate-laws-do/106253754\>
[24] Al Jazeera, 'What Is the Palestine Action Group, and Why Is the UK Banning It?', Al Jazeera (online, 25 June 2025) https://www.aljazeera.com/news/2025/6/25/what-is-the-palestine-action-group-and-why-is-the-uk-banning-it
[25] Fighting Antisemitism and Keeping Guns Out of the Hands of Terrorists and Criminals Amendment Bill 2026 (Qld); Terrorism and Other Legislation Amendment Act 2025 (NSW), struck down in part in Jarrett v State of New South Wales [2026] NSWCA 62.
[26] Jacob Hersant, ‘No one should be jailed for expressing their political views’ x.com (5 May 2026) https://x.com/NoticerNews/status/2051506752370487691.