Constitutional Law Argument: The White Australia Party and the Death of Political Pluralism: A Case Against the Commonwealth’s Proscription Power

The constitutional importance of White Australia Party Inc & Anor v Commonwealth of Australia & Anor does not depend upon anyone approving of the White Australia Party, its leadership or its policies. Constitutional restraints upon government power matter most when they are invoked by people whose opinions are unpopular, offensive or politically marginal. A constitutional protection that operates only for respectable political organisations is scarcely a protection at all.

The case should therefore be stripped of the emotional baggage surrounding the plaintiffs and reduced to the constitutional question underneath it. Can the Commonwealth Executive, by regulation, render a political organisation practically incapable of operating by making membership, leadership, recruitment, funding and organisational support serious criminal offences, even though those activities would ordinarily be lawful incidents of political association?

That question is considerably more important than the fate of one political party. The High Court has been asked to determine three central questions concerning Part 5.3B of the Criminal Code: whether it is supported by a Commonwealth head of legislative power, whether it impermissibly burdens the implied freedom of political communication, and whether it infringes Chapter III of the Constitution. The plaintiffs need succeed on only one of those grounds.

The place to begin is not with free speech but with legislative power. The Commonwealth Parliament does not possess a general criminal-law power, nor does the Constitution expressly give it power to determine which domestic political associations may continue to function. The Commonwealth therefore has to identify some affirmative constitutional source supporting what Part 5.3B actually does.

That question becomes especially important once the legislation is characterised by its legal operation rather than its title or stated purpose. Part 5.3B does not merely prohibit racial violence, threats or incitement. It establishes machinery through which the Executive can specify an organisation as a prohibited hate group. Once that occurs, criminal consequences attach to activities including membership, leadership, recruitment, funding and support. The organisation is thereby rendered practically incapable of continuing to operate.

This is where Australian Communist Party v Commonwealth, the Communist Party Case of 1951, becomes relevant. But the comparison must be made carefully.

It is too simple to say that the present legislation merely recreates the Communist Party Dissolution Act in modern dress. The legislative machinery is different. The 1950 Act contained legislative declarations concerning the Communist Party and permitted executive action upon that foundation. Part 5.3B instead establishes general statutory criteria, requires security advice and ministerial satisfaction, and leaves questions concerning the legality of executive action potentially susceptible to judicial review.

That is a real distinction, and the Commonwealth is entitled to rely upon it. There is also an obvious comparison with Australia's existing terrorist-organisation proscription regime in Division 102 of the Criminal Code. For more than two decades Australian law has permitted organisations to be listed as terrorist organisations, with extremely serious consequences for membership and support. Any argument pretending that executive listing of dangerous organisations is unprecedented in Australian federal law therefore begins from the wrong position.

But acknowledging that comparison actually sharpens the constitutional question rather than disposing of it. The constitutional novelty is not proscription machinery itself. It is the extension of that machinery from organisations defined by their relationship to terrorism into the constitutionally sensitive domain of organised electoral politics.

The distinction that matters is therefore not merely the existence of a criteria-based listing power. It is the category of organisation to which that power is now applied. A terrorist organisation exists outside the ordinary machinery of representative government. A political party seeking electoral registration, nominating candidates, campaigning at elections, persuading voters and potentially obtaining representation in Parliament occupies a fundamentally different constitutional position.

Political parties are not incidental features of modern Australian democracy. They are among the principal institutions through which the system created by sections 7 and 24 of the Constitution actually functions. The Constitution itself has expressly recognised political parties in section 15 since 1977. More fundamentally, representative government operates through organised political competition. Parties recruit candidates, develop policies, raise funds, organise meetings, mobilise supporters and give citizens a means of combining their individual political influence.

This is why the Communist Party Case remains important even though the statutory machinery is different. Its significance should not be exaggerated into a general rule that the Executive can never make determinations about dangerous organisations without prior judicial determination. Division 102 itself demonstrates the difficulty with such a proposition. The deeper principle is that constitutional power cannot simply be enlarged by governmental conclusions about the dangerous character of the organisation against which that power is exercised.

That principle becomes especially significant here because of an extraordinary feature of the factual record. According to the plaintiffs' submissions, the Special Case records no prosecution of the party, Thomas Sewell or another party member under the challenged provisions since Part 5.3B commenced. More strikingly, the ASIO summary itself reportedly acknowledges that the organisation understands the legal thresholds for criminality and deliberately avoids or stops short of them.

That produces one of the hardest questions for the Commonwealth. If members commit crimes, prosecute them. If they incite violence, prosecute the incitement. If they threaten people, prosecute the threats. If they engage in terrorism, use the extensive terrorism laws already available. But if an organisation deliberately remains below existing thresholds of criminality, can the Executive nevertheless effectively destroy the organisation and transform continued association with it into a serious crime?

The Commonwealth's answer is essentially preventive. Parliament need not wait until violence occurs before acting against organisations believed to create the conditions from which violence may emerge. That proposition has considerable force. Governments plainly possess legitimate powers to prevent serious harm rather than merely prosecute its perpetrators afterwards.

But preventive purpose does not answer the anterior constitutional question: preventive under what head of Commonwealth power, and subject to what constitutional limitations?

The Commonwealth principally relies upon the external affairs power and the implied nationhood power. The external affairs argument invokes Australia's obligations under the International Covenant on Civil and Political Rights and the International Convention on the Elimination of All Forms of Racial Discrimination.

This is where the treaty argument requires precision. The objection is not simply that Australia somehow never accepted ICERD. Australia ratified the Convention. Nor can the constitutional case safely rest upon the proposition that Australia's declaration concerning Article 4 removes the external affairs power altogether.

Australia's continuing declaration concerning Article 4(a) nevertheless provides important historical evidence of Australian caution about treating Article 4 as an unqualified command for criminal suppression. Australia declared upon ratification that it was "not at present in a position specifically to treat as offences all the matters covered by article 4(a)" and referred instead to existing criminal laws dealing with public order, assault, riot, conspiracy and related offences. That declaration has not been withdrawn. But organisational prohibition is principally addressed by Article 4(b), so the constitutional argument cannot sensibly depend upon the Article 4(a) declaration alone.

The stronger point concerns the relationship between the legislation and the treaty obligation actually relied upon. The external affairs power permits Parliament to enact legislation implementing treaty obligations. It does not follow that merely invoking an international convention gives Parliament an unlimited constitutional licence to construct whatever domestic regulatory regime it considers desirable.

Article 20(2) of the ICCPR requires prohibition of advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence. Yet Part 5.3B does not merely enact that standard as a criminal prohibition. It establishes an organisational proscription mechanism capable of making membership and support criminal.

Article 4(b) of ICERD comes closer because it requires states to prohibit organisations that promote and incite racial discrimination and to make participation in such organisations punishable by law. But even here the treaty contains limits. The organisation must promote and incite racial discrimination. The plaintiffs contend that Part 5.3B travels considerably further, extending to broader categories of conduct, assistance and preparatory activity.

There is another qualification frequently lost when Article 4 is invoked. Its chapeau requires states to act with due regard to principles reflected in the Universal Declaration of Human Rights and rights expressly identified elsewhere in ICERD, including freedom of opinion, expression, peaceful assembly and association. The treaty therefore cannot sensibly be treated as an international command simply to suppress whatever organisations the Executive considers socially harmful.

The constitutional question is consequently whether Part 5.3B faithfully implements the treaty norm or uses that norm as the constitutional launching pad for a substantially broader domestic proscription power.

The plaintiffs say it is the latter.

The Commonwealth's alternative reliance upon the nationhood power presents another difficulty. There undoubtedly must be some capacity in the national government to respond to threats to the existence and functioning of the Australian polity, particularly during emergencies. The Commonwealth argues that racial hatred, extremist violence and threats to social cohesion can reach a level engaging precisely that national protective function.

But nationhood cannot become a residual constitutional power available whenever the Commonwealth identifies a sufficiently serious national problem. Otherwise, the enumerated distribution of legislative powers in section 51 progressively loses its significance. Almost any substantial social problem can be characterised as affecting the nation.

The Communist Party Case again supplies the warning. If national self-preservation did not give the Commonwealth an unrestricted power in peacetime to dissolve an organisation Parliament regarded as revolutionary and subversive, it is difficult to see why the nationhood power should now be treated as an open-ended authority to suppress political associations whose continued existence the Executive regards as dangerous.

The implied freedom of political communication supplies a separate and potentially even stronger objection.

The freedom recognised in Lange v Australian Broadcasting Corporation, McCloy v New South Wales, Brown v Tasmania and subsequent cases is not an American-style individual right to free speech. It is a structural limitation derived from the system of representative and responsible government established by the Constitution. The people must be capable of making the political choices the Constitution assigns to them.

Part 5.3B unquestionably burdens that process when applied to a political party.

Remarkably, the Commonwealth substantially concedes the factual point. Its submissions acknowledge that the party as an organisation is deprived of its capacity to engage in political communication because the criminal provisions substantially undermine its operation. The Commonwealth also accepts that members cannot associate or communicate as members of the organisation. Its answer is that they remain free to communicate individually or through other organisations and that, viewed against political communication generally, only a small class of persons is affected.

That answer understates what political association means.

Representative government does not operate through millions of isolated individuals independently announcing their political opinions. Political organisation magnifies individual political power. Parties pool money, labour, expertise and support. They formulate platforms, nominate candidates, distribute material, organise campaigns and create recognisable alternatives from which electors may choose.

To render a political party incapable of functioning and answer that its former members remain free to speak individually is rather like closing a newspaper and answering that its former journalists remain free to talk to their neighbours.

There is also an internal tension in the Commonwealth's attempt to minimise the burden. The justification for organisational proscription necessarily assumes that organised association magnifies the capacity of individuals to influence events. That is precisely why destroying the organisation is thought useful. Yet when assessing the burden upon political communication, the Commonwealth effectively argues the opposite: that little is lost because the same individuals remain free to speak separately.

The Commonwealth cannot easily have it both ways. If collective organisation is powerful enough to make proscription necessary, destroying that collective organisation imposes a correspondingly serious burden upon organised political communication.

Nor can constitutional significance simply be measured by counting speakers. A law directed against one political organisation may burden comparatively few people while nevertheless operating with extraordinary intensity upon the constitutionally protected process in which those people are engaged. Prohibiting one opposition newspaper would not necessarily become constitutionally insignificant merely because hundreds of other newspapers remained available. The question is not merely how many speakers remain. It is whether government has assumed the power to determine that a particular organised political voice may no longer participate.

The Free Speech Union's intervention reinforces this point. Political parties are intrinsic to representative government because their ability to organise, meet, recruit and advocate forms part of the practical machinery through which electors exercise political choice. Section 15's express recognition of political parties reinforces what the structure of representative government already implies.

The burden therefore cannot plausibly be dismissed as trivial merely because the number of people immediately affected is small.

The proportionality analysis must then be run explicitly rather than disposed of with the adjective "disproportionate."

First comes suitability. There is plainly a rational connection between preventing organisations from facilitating serious hate-motivated violence and protecting the community. The plaintiffs gain little by denying the obvious. A government seeking to prevent racial violence, terrorism and serious public disorder pursues a legitimate and important objective.

The real contest begins with necessity. Are there reasonably available means of achieving substantially the same protective objective that impose a materially smaller burden upon political communication?

Australia already possesses extensive criminal laws dealing with violence, threats, terrorism, incitement and other dangerous conduct. Individuals responsible for offences can be prosecuted. Civil remedies exist under the Racial Discrimination Act. Terrorism can trigger the existing terrorist-organisation provisions. Parliament could require substantially stronger judicial involvement before the extraordinary consequences of political proscription arise. It could provide affected organisations with notice and a meaningful opportunity to answer the allegations against them. It could exclude genuine electoral political parties from the ordinary listing mechanism or subject them to a separate procedure carrying much stronger safeguards.

The significance of those alternatives is not that every one must constitute an exact substitute for proscription. The constitutional question is whether a reasonably practicable alternative could achieve substantially the same protective purpose while imposing a materially smaller burden upon political communication. A regime directed more closely at proved unlawful conduct rather than the continued existence of the political association itself presents precisely that possibility.

The severity of the consequences makes those alternatives constitutionally important. Membership alone can attract years of imprisonment, while directing, funding, training and recruiting carry still heavier penalties. Those offences do not necessarily require proof that the individual defendant personally committed the hate crime said to justify proscription. Executive listing changes the legal character of conduct that might otherwise amount to ordinary political association.

The absence of procedural fairness therefore matters greatly. Australia has no general American-style constitutional due-process clause, so it would be misleading to argue otherwise. The significance of procedural fairness here is instead that its exclusion demonstrates the breadth of the mechanism Parliament has constructed.

At critical stages, an organisation need not be given an opportunity to answer the case before the executive decision is made. Yet the consequence of that decision can be to transform continued membership and organisational activity into conduct carrying years of imprisonment.

The final proportionality question is adequacy in balance.

Here the Court must weigh an undoubtedly important public objective against an extraordinarily severe burden upon political organisation. The relevant question is not whether proscription provides some additional protection. Almost every additional restriction can provide some marginal preventive benefit. The question is whether the incremental protection obtained justifies rendering an organised participant in the political process incapable of functioning and attaching serious criminal liability to continued association with it. That is a very different question from whether racial violence is undesirable or whether governments may suppress crime. Both propositions are obvious.

The question is whether protecting the community requires giving the Executive a power capable of effectively eliminating a political party from organised political life when substantially less restrictive means may be available.

This brings the argument back to the crucial distinction between criminal conduct and political status. The government is entitled to prosecute what a person does. The constitutional danger arises when executive designation of an organisation becomes the event that transforms membership and association themselves into crimes.

Chapter III adds another dimension, although this is probably the plaintiffs' most difficult ground and should be argued cautiously. It is too broad to say that every executive decision carrying severe consequences constitutes an exercise of judicial power. Australian constitutional law permits substantial preventive regimes. Cases such as Fardon v Attorney-General (Qld) and Thomas v Mowbray demonstrate that serious restrictions may operate for protective rather than punitive purposes without automatically offending Chapter III.

The plaintiffs therefore need more than the proposition that proscription imposes severe consequences.

Their stronger argument concerns the combination of features involved: executive designation, absence of prior adjudication of individual criminal wrongdoing, severe criminal consequences flowing from continued association, and destruction of the organisation's practical capacity to operate.

The Commonwealth answers that listing itself does not convict or punish anyone. A person is punished only following prosecution before a Chapter III court for contravening one of the offences after the organisation has been specified. That is a substantial answer and should not be disguised.

But it leaves an uncomfortable constitutional question. What exactly does the criminal court decide?

If the decisive antecedent fact, that the organisation possesses the character warranting prohibition, has already been established for legal purposes through executive designation, the subsequent court may adjudicate whether the defendant knowingly engaged in membership, funding or support without itself determining whether the organisation deserved the status that made those activities criminal.

That is where the analogy with the Communist Party Case retains force. Judicial review of whether an executive decision was legally authorised is not necessarily equivalent to judicial determination of the substantive facts that justify transforming otherwise lawful political association into criminal conduct.

The government's strongest factual arguments must also be confronted rather than avoided. Thomas Sewell's history and his association with the former National Socialist Network provide the Commonwealth with material from which to argue that this is not viewpoint discrimination disguised as public protection. The government says the legislation responds to conduct, organisational history and risks of extremist violence rather than merely unpopular opinions.

Even if every adverse allegation concerning Sewell were accepted, however, that cannot by itself resolve the constitutional validity of Part 5.3B. Constitutional validity is not determined by asking whether the first person against whom a power is exercised is sympathetic. The question is what power the law gives the Executive generally.

A power constitutionally valid against White Australia today remains part of the Commonwealth's constitutional armoury tomorrow.

Nor should the terrorist attack that preceded the legislation be ignored. Governments have an obligation to respond to terrorism and serious communal violence. The Commonwealth will understandably rely upon that context in defending both the purpose and necessity of the legislation.

But the plaintiffs' submissions record an important fact: no involvement by the White Australia Party or its members in that attack is suggested. The political urgency produced by one terrorist atrocity therefore cannot itself answer whether Parliament possessed constitutional authority to create this particular proscription regime or whether its breadth is compatible with representative government.

Indeed, moments of public fear are precisely when constitutional restraints perform their most important function. The Communist Party Dissolution Act was not enacted because Robert Menzies inexplicably disliked an innocuous debating society. It arose amid genuine fears of communist revolution, Soviet expansion, espionage, industrial disruption and international conflict.

The High Court nevertheless asked whether the Constitution gave the Commonwealth the power it claimed. That same discipline is required here.

There is nothing inconsistent about believing that racial hatred and political violence are serious social evils while simultaneously believing that the Executive should not possess an unnecessarily broad power to determine which political organisations may continue to function.

Nor does defending that proposition require defending the White Australia Party. Quite the opposite. The constitutional principle becomes meaningful precisely because the plaintiff is politically unattractive. Popular parties do not need protection against proscription. Governments do not normally attempt to outlaw organisations whose opinions they admire. The difficult constitutional cases arise at the boundary, where public revulsion towards the speaker creates the temptation to enlarge governmental power.

The Commonwealth's case is not frivolous. It can point to the external affairs power, international obligations concerning racial discrimination, the nationhood power, Australia's longstanding terrorist-organisation listing regime, judicial review, the preventive rather than punitive purpose of the legislation, and the continuing ability of affected individuals to express lawful political views outside the prohibited organisation. Those are serious arguments.

But the plaintiffs have serious answers. There is no general Commonwealth power over political associations. The treaty provisions contain limits that Part 5.3B arguably exceeds. The nationhood power cannot simply become a general public-safety power. Political parties occupy a distinctive place within representative government. The Commonwealth itself accepts that proscription destroys the affected organisation's capacity for political communication. Severe criminal consequences follow from continued membership and support despite no requirement that every person affected personally commit the hate crime said to justify the original designation. Less restrictive alternatives are readily imaginable.

Above all stands the question the Communist Party Case left to later generations. Who ultimately decides which political movements Australians may organise themselves to support? In an electoral democracy the presumptive answer must be the Australian people.

Criminal courts may punish crimes. Parliament may enact laws within constitutional power. Governments may protect citizens against violence and genuine threats to national security. None of that entails that the Executive must also possess the power effectively to remove a political organisation from organised public life.

The White Australia Party may be the least attractive possible plaintiff through which to test that proposition. Constitutionally, that may be exactly why the case matters. If protection for political pluralism disappears whenever the political organisation seeking it is sufficiently unpopular, then political pluralism exists only at the government's pleasure. And if the Executive can determine which organised political voices may participate in the contest for political power, the question is no longer merely what Australians are permitted to say. It is who is permitted to organise, campaign and ask for their votes.

That is a question going to the architecture of representative government itself.