CANBERRA, AUSTRALIA | Australia’s High Court is hearing a constitutional challenge from the banned neo-Nazi organization White Australia and its national president, Thomas Sewell, against federal legislation that allows organizations accused of promoting hate and violence to be designated prohibited hate groups.
The Full Court began hearing White Australia Party Inc. & Anor v. The Commonwealth of Australia & Anor in Canberra on Tuesday, Sept. 8, with arguments scheduled to continue Wednesday.
White Australia is challenging provisions of the Combatting Antisemitism, Hate and Extremism (Criminal and Migration Laws) Act 2026, legislation enacted by Parliament in January following the deadly terrorist attack at a Jewish Chanukah celebration at Bondi Beach.
The legislation inserted a new prohibited hate group regime into the Commonwealth Criminal Code.
White Australia was formally designated a prohibited hate group in May. The designation remains in force while the constitutional case proceeds.
Under the legislation, membership in a prohibited hate group and certain forms of support, recruitment, funding and training can constitute criminal offenses. Maximum penalties for some offenses reach 15 years in prison.
The High Court has not ruled on the constitutional challenge.
Group Challenges Commonwealth’s Power
At the center of the case is whether the Commonwealth has the constitutional authority to impose the prohibition and whether the legislation impermissibly restricts Australia’s implied freedom of political communication.
The plaintiffs are also challenging the legislation on constitutional grounds relating to Chapter III of the Constitution and the separation of judicial power.
According to the High Court’s official summary of the case, the judges are considering whether Part 5.3B of the Criminal Code is invalid because it lacks sufficient legislative power, impermissibly burdens the implied freedom of political communication or infringes Chapter III of the Constitution.
Lawyers for White Australia have compared the case with the High Court’s landmark 1951 decision striking down legislation intended to dissolve the Communist Party of Australia.
They argue the current legislation gives the executive government excessive power to suppress an organization claiming to engage in political activity.
White Australia’s lawyers have characterized the legislation as authoritarian and argued that Parliament cannot effectively criminalize a political organization through executive designation.
The Commonwealth rejects that characterization.
The government argues the legislation targets harm caused by hate groups rather than suppressing legitimate political disagreement.
Government Says Political Rebranding Was An Attempt To Evade Ban
The case follows a series of organizational changes involving the National Socialist Network.
The federal Parliamentary Joint Committee on Intelligence and Security reported that the National Socialist Network and Australian European Movement publicly announced they would disband after the new legislation passed in January.
White Australia subsequently sought registration as a political party.
The Australian Electoral Commission reportedly made a preliminary determination that its application was invalid because the organization had not provided required information concerning its membership.
The Commonwealth has argued that the political-party structure does not transform the underlying organization into an ordinary political association entitled to avoid the hate-group legislation.
Government submissions maintain that the organization effectively reconstituted itself to continue operating despite the new law.
The Parliamentary Joint Committee on Intelligence and Security cited conduct associated with the organization that included a November 2025 demonstration outside the New South Wales Parliament involving antisemitic material and chants.
The committee also referred to an August 2025 attack on Camp Sovereignty, an Aboriginal protest site in Melbourne.
White Australia disputes the constitutional validity of the statutory regime itself, meaning the High Court case reaches beyond arguments over the conduct attributed to the organization.
ASIO Recommended Government Consider Listing
White Australia became a prohibited hate group after the Governor-General signed regulations on May 15. The listing took effect May 16.
Home Affairs Minister Tony Burke said at the time that the Australian Security Intelligence Organization had recommended the government consider listing the organization.
White Australia became the second organization designated under the prohibited hate group regime established by the 2026 legislation.
The law states that one of the objectives of the regime is to protect Australians from social, economic, psychological and physical harm, as well as from the promotion of violence by organizations involved in or advocating conduct constituting a hate crime.
The listing effectively prevents White Australia from operating legally by criminalizing specified forms of participation and support.
White Australia previously attempted to have the listing temporarily lifted while its broader constitutional challenge proceeded.
Chief Justice Stephen Gageler rejected that application in June.
The substantive constitutional challenge nevertheless continued and was referred to the Full Court.
Case Could Have Wider Consequences
The case’s significance extends beyond White Australia.
A High Court finding that the prohibited hate group provisions are constitutionally invalid could affect the Commonwealth’s broader ability to designate and criminalize organizations under the new regime.
The case also raises fundamental questions about the boundary between political communication and government measures designed to counter organizations accused of promoting racial or religious hatred.
The High Court is not being asked to determine whether neo-Nazi ideology is socially acceptable. The constitutional question is whether the Commonwealth legislation used to prohibit the organization is valid under Australia’s constitutional framework.
White Australia remains a prohibited hate group while those questions are before the court.
The hearing is continuing, and judgment is expected at a later date.
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