Why Legal Experts Think Neo-Nazis Could Win in the High Court

Australia’s most prominent Neo-Nazi group may have a significant chance of overturning the federal government’s ban on it, according to several leading legal experts. A victory for White Australia, also known as the National Socialist Network, would embarrass Prime Minister Anthony Albanese, who said in May that he was confident the laws would survive a legal challenge.

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There would be political issues if it was seen that the government had lost to the White Australia Party. But on the whole, the bigger issue is does this legislation survive and how might it be used in the future? And how consistent is it with our democratic system as imposed and required to operate by our constitution?

The group has a history of violence, criminality and racist demonstrations. It became the second organization listed as a prohibited hate group under laws introduced after last year’s Bondi Beach terror attack. Home Affairs Minister Tony Burke banned it while it was trying to establish a political party. White Australia is now challenging the law in the High Court, arguing that it is unconstitutional.

Constitutional law expert Anne Twomey said the legislation appeared to have been rushed through Parliament in January without enough scrutiny. “There would be political issues if it was seen that the government had lost to the White Australia Party,” she told ABC News Verify. “But on the whole, the bigger issue is does this legislation survive and how might it be used in the future? And how consistent is it with our democratic system as imposed and required to operate by our constitution?”

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The harm that may be caused by a proscribed group justifies the intrusion on what otherwise would be protected political communication.

The case raises three central arguments from the group: that the federal government lacked power to make the law, that the law breaches the implied freedom of political communication, and that it violates the separation of powers between government and the judiciary. The government argues that the harm a proscribed group could cause justifies restricting communication that would otherwise receive protection.

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Imagine the optics. Thomas Sewell launching the White Australia Party on the steps of the High Court after having a big win there. We would be handing these people a political gift.

Twomey pointed to the High Court’s 1950s decision striking down an attempt to dissolve the Communist Party as a relevant precedent. NSW Labor MP and former barrister Stephen Lawrence warned that a court victory could hand the group a political gift. “Imagine the optics. Thomas Sewell launching the White Australia Party on the steps of the High Court after having a big win there. We would be handing these people a political gift.”

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People were profoundly shocked when the High Court held that that legislation providing for the dissolution of the Communist Party was invalid.