Lawyers representing the White Australia party, a neo-Nazi group recently outlawed under Australia’s anti-hate laws, have challenged the legality of the ban before the High Court this week, arguing it infringes constitutional protections and improperly vests decision-making power in a government minister.

The White Australia party, formerly known as the National Socialist Network (NSN), was declared an illegal hate group in May following a recommendation from the Australian Security and Intelligence Organisation (ASIO) to Home Affairs Minister Tony Burke. Under the current legislation, activities such as supporting, funding, recruiting, or joining the group are criminal offences punishable by up to 15 years in prison.

The case centers on the validity of part 5.3B of the Criminal Code, which empowers the Home Affairs Minister, based on ASIO’s advice and with the Attorney General’s written consent, to list an organisation as a prohibited hate group. The party’s lawyers contend this process breaches the implied freedom of political communication enshrined in the Australian Constitution and represents an overreach that violates the separation of powers by placing a significant legal determination in the hands of a politician without judicial oversight or appeal mechanisms.

Barristers Peter King and Shahed Sharify, representing the White Australia party, described the total ban as disproportionate, likening it to “using a sledgehammer on a nut.” Sharify described the legislation as “authoritarian in nature,” warning it could be used broadly to suppress political parties where members are implicated in hate crimes linked to the group’s activities. He argued that such decisions should be made by a judge rather than a minister who may make a swift determination based on limited briefing papers.

The government, represented by Brendan Lim, countered that the laws are carefully designed to protect communities from harm and cannot be employed to stifle legitimate political competition. Lim emphasized that groups are designated as prohibited only when deemed “reasonably necessary to protect the Australian community or part of the Australian community against social, psychological, physical or economic harm.” He also noted procedural safeguards, including requirements for advice from the head of ASIO, consent from the Attorney General, and the opposition leader being briefed on the designation.

The government further disputes the classification of the White Australia party as a political party, arguing in submissions that it is essentially a rebranded extremist group formed to shield members engaging in racist and anti-Semitic conduct under the cover of political organization.

Members of the White Australia party, including leader Tom Sewell, were present in the courtroom during the proceedings. Sewell, 33, was sentenced in June to a community corrections order with 200 hours of community service for offensive behavior, following a Melbourne magistrate’s finding that he had emulated “Nazi thugs of 1930s Berlin” by using racial slurs during a protest outside the Chinese consulate.

The outcome of this High Court challenge could have significant implications for Australia’s approach to banning extremist groups, potentially affecting the status of other organisations such as the Islamist group Hizb ut-Tahrir, which has also been proscribed under similar laws.