Could the White Australia Party succeed in challenging its ban?

Should the federal government be constitutionally able to ban a group, resulting in stiff criminal penalties for its continuing members, even though the group has not committed any crime? This is the dilemma the High Court is facing with the constitutional challenge by the White Australia Party to the validity of the recently enacted Part 5.3B of the Commonwealth Criminal Code.

What does the challenged law do? Part 5.3B allows the police minister to advise the governor-general to declare a group to be a “prohibited hate group”.

Such a declaration was made in relation to the White Australia Party .

Once a group is prohibited, it becomes a serious criminal offence to be a member of it, to direct its operations, to fund or train it or otherwise support it.

The penalties are high, with maximums ranging from seven to 15 years’ imprisonment.

The minister must be satisfied on reasonable grounds that the group has engaged in conduct constituting a “hate crime”, or been associated with a hate crime.

For example, this could be by preparing, planning, assisting or advocating engaging in such conduct.

But despite the term “hate crime”, the legislation makes it clear no one needs to have been convicted of a crime, no crime needs to have been committed, and the conduct could have occurred long ago when it was not a crime.

It’s left to the minister to be satisfied, without a hearing or procedural fairness, that conduct constituting a hate crime has occurred, or has been planned, assisted or advocated.

Before advising the ban, the minister must have received certain advice from ASIO, consulted the opposition leader and received the agreement of the attorney-general.

The minister must also be satisfied that banning the group is reasonably necessary to protect the Australian community, or part of it, from social, economic, psychological or physical harm.

The scope of the discretion is very wide, with decision-making occurring within the executive government, rather than the courts.

White Australia is claiming Part 5.3B is constitutionally invalid on three grounds.

First, the Commonwealth parliament has no power to make the law.