White Australia Party v Commonwealth: The Constitutionality of Proscribing ‘Prohibited Hate Groups’
- Publisher:
- University of New South Wales Law Journal Forum
- Publication Type:
- Journal Article
- Citation:
- University of New South Wales law Journal, 2026, pp. 1-17
- Issue Date:
- 2026-09-28
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In White Australia Party v Commonwealth, the High Court of Australia has heard a constitutional challenge to part 5.3B of the Criminal Code Act 1995 (Cth). Part 5.3B provides an executive regime for the Commonwealth to proscribe ‘prohibited hate groups’. The plaintiff challenges the regime on three grounds: first, that the provisions are unsupported by any affirmative legislative power and are indistinguishable from the Communist Party Dissolution Act 1950 (Cth), invalidated in Australian Communist Party v Commonwealth; second, that the regime violates the implied freedom of political communication; and third, the regime is incompatible with Chapter III of the Australian Constitution. This article summarises and analyses the issues before the High Court. As part 5.3B is likely to be supported by the external affairs power, the third step of the test for the implied freedom and the Chapter III argument are likely to be the primary points of contention. Nonetheless, notwithstanding part 5.3B’s significant constitutional and principled issues, this article argues that the Commonwealth has reasonable prospects of success – the Court is probably unlikely to find it contrary to the implied freedom.
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