The Court Case That Decides Whether Australia is Still a Democracy, By Celina101

Australia may keep elections while losing the freedom to decide which political organisations are allowed to contest them.

Last Sunday, March for Australia held rallies around the country explicitly billed as demonstrations for free speech and against the federal government's hate laws. The rallies drew a mixture of nationalist activists, controversial speakers, Antifa and police. In other words, the media were handed endless red meat to report on.

And yet there has been remarkably little coverage. Even stranger, the story sitting underneath those protests is barely being reported at all.

In a little over a week, the High Court of Australia will hear White Australia Party Inc v Commonwealth, a challenge to the new federal prohibited hate-group legislation. Hearing dates are 8 and 9 September. There are three core constitutional questions: whether Part 5.3B of the Criminal Code lacks 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. Six state Attorneys-General have intervened. The Free Speech Union has sought leave to appear as amicus curiae. The plaintiffs, the Commonwealth, the states and the proposed amicus have now filed substantial written submissions.

This is one of the most consequential constitutional cases in modern Australian history. The Court is being asked whether the federal government can use national security and international treaties to ban political organisations, and in effect take away the voters' right to decide the field of candidates themselves.

The Commonwealth absurdly claims these laws are needed to protect Australians from racist violence. But the atrocity used to create the political climate for this regime was the Bondi massacre: an Islamic State-inspired terrorist attack which had absolutely nothing to do with the Australian far Right or the White Australia party. Existing terrorism laws already dealt with political violence. The whole reason Canberra had to invent the separate category of a "hate group" was because it wanted the power to ban organisations which were not terrorist groups and which had not engaged in terrorist violence.

And yet this point has barely gotten any attention in the media. Moreover, the High Court case itself has received astonishingly little attention too. When the legacy media has bothered to cover it at all, its attention has overwhelmingly drifted toward the spectacle surrounding the plaintiffs rather than the constitutional power being claimed by the Commonwealth.

This is not very surprising given much of the mainstream press is now materially dependent on public money, or on revenue streams the government has created for it. Through the News Media Bargaining Code and now the proposed News Bargaining Incentive, the state is effectively forcing Big Tech to subsidise mainstream media outlets which can no longer maintain their old business model on those platforms. The government is making Google, Meta and other platforms prop up the same media class that otherwise struggles to compete in the new media environment. Unsurprisingly, that class is not especially eager to dwell on a case exposing how far the government is now prepared to go to control political association. So they cover the personalities, the Nazi imagery, the Antifa scuffles and the spectacle, anything except the constitutional question.¹

The media has barely, if at all, articulated what the Commonwealth is trying to do with the external affairs power, or what it is asking the High Court to accept about nationhood.

What is the legal mechanism being defended here?

The executive process identifies an organisation. The Governor-General then specifies it by regulation after statutory steps involving the Director-General of Security, the AFP Minister, the Attorney-General and the Opposition. From that point, directing it, recruiting for it, financing it, supporting it and even knowingly remaining a member can expose a person to serious criminal punishment. There is no exemption saying: unless, of course, the organisation happens to be political.

The government is therefore asking for an extraordinary power to outlaw political organisations while ludicrously presenting that power as necessary to "protect democracy." The challengers' answer is the obvious one: a government power to decide which political organisations may legally exist is itself a threat to the constitutional structure of democratic government.

And if your response is simply, "Yeah, but these people are Nazis," then answer the more important question: why do you despise Nazism?

Because it is authoritarian? Because it rejects liberal democracy? Because it treats political opposition as something to crush?

That is precisely the irony here. People reject National Socialism primarily because of those totalitarian tendencies. Yet the Australian Labor government is now quite literally defending a legal regime that allows the state to ban political organisations and criminalise participation in them.

This is the type of power that should be impossible in a country that insists on calling itself a liberal democracy. Because if political parties can be policed out of existence by the executive, then "liberal democracy" is an incredibly inaccurate term for the political model of Australia. If the Labor Party get their way, the High Court has officially affirmed that we live under police state multiculturalism, in which elections may continue, but the government reserves the right to decide which political organisations Australians are allowed to choose between.

What is being asked in the High Court

The contest can be reduced to three questions.

First, power. Does the Commonwealth actually possess legislative power to enact Part 5.3B? The Commonwealth says yes, primarily because of the external affairs power in s 51(xxix), and alternatively because of a protective nationhood power derived from the Commonwealth's constitutional existence, including ss 61 and 51(xxxix).²

Second, the implied freedom of political communication. Even if some head of power supports the statute, does the regime impose an impermissible burden upon the political communication required by Australia's system of representative government?

Third, Chapter III. Does the listing and offence architecture confer on the executive a function of an impermissibly judicial or punitive character? The plaintiffs say it does. The Commonwealth says it does not.

The treaty power and the real limit

Section 51(xxix) gives the Commonwealth Parliament power to make laws with respect to "external affairs." Long-established High Court doctrine allows that power to support domestic legislation implementing sufficiently specific Australian treaty obligations, including legislation dealing with subject matter that would not otherwise fall comfortably within one of the Commonwealth's enumerated domestic powers.

The treaty obligations the Commonwealth appeals to are familiar. Article 4(b) of the International Convention on the Elimination of All Forms of Racial Discrimination requires states parties to declare illegal and prohibit organisations that promote and incite racial discrimination and to make participation in such organisations punishable by law. The Commonwealth relies directly upon Article 4(a) and Article 4(b) as treaty obligations Part 5.3B is designed to implement.³

The International Covenant on Civil and Political Rights contains a related but differently framed obligation. Article 20(2) requires prohibition by law of advocacy of national, racial or religious hatred where it constitutes incitement to discrimination, hostility or violence.⁴

The plaintiffs argue that Article 20(2) is concerned with advocacy constituting incitement, not organisational proscription as such, and that Part 5.3B extends beyond what the treaty requires. On CERD Article 4(b), they focus on the treaty's requirement that states have "due regard" to rights recognised elsewhere in CERD and the Universal Declaration, as well as differences between the statutory definition of hate crime and the treaty concept of organisations which "promote and incite racial discrimination."⁵

So this is, in effect, the argument that international treaties can overrule democracy itself.

These treaties are written in the language of human dignity and public order, but their history matters. The compulsory prohibition of "hate" advocacy in Article 20 of the ICCPR was pushed through the United Nations by the Soviet bloc over the objections of liberal democracies concerned about freedom of expression. ICERD went further, requiring states to prohibit organisations that promote and incite racial discrimination. Those coercive provisions carry the influence of a political tradition in which the state decides which ideas and organisations are too dangerous to exist.

The Commonwealth is now appealing to that treaty architecture to do work inside the Australian Constitution. A globalist takeover in its most literal legal form: using international instruments as a constitutional Trojan horse through which the federal executive can enter the political arena and decide which organisations Australians may join, fund, support and ultimately vote for.

Nationhood and social cohesion

The Commonwealth's own submission expressly states that the Court need only reach nationhood if external affairs does not sustain the law. If the Court does reach it, the constitutional stakes become much larger.

The Commonwealth submits that there is an implied legislative capacity to protect the Commonwealth and its people against threats that would undermine Australia "as a nation." It draws upon cases involving treason and sedition, protection of Commonwealth institutions, national undertakings and emergency responses, including Davis and Pape.⁶

The Commonwealth argues that Australia must not be conceived just as an institutional shell but as a "cohesive society bound by commitments to democratic principles and the rule of law" in which people can participate fairly in civic life irrespective of race and related characteristics. It argues that what it classifies as extremist organisations, including political ones, can threaten that national character by normalising what it deems extremist views and intimidating targeted Australians out of civic participation.⁷

Elsewhere, in defending the burden on political communication, the Commonwealth connects racial hatred and discrimination with threats to lives, national security and social cohesion.

But what is the limit to this?

Once "protect the Commonwealth against existential threats" extends beyond armies, insurrection, treason and attacks on government institutions, and starts reaching the preservation of the social conditions said to sustain a cohesive democratic nation, the conceptual field gets very large, very quickly.

Directly Chosen by the People: Sections 7 and 24

The core of the plaintiffs' case starts with sections 7 and 24 of the Constitution. Section 7 requires senators to be "directly chosen by the people." Section 24 says the same of members of the House of Representatives.

In plain English: what does "chosen by the people" mean if the executive government may remove political organisations from the field before the people choose? An election in which the government of the day has criminalised one of the entrants is not obviously an election "by the people" in the constitutional sense. It is a choice among the options the government has permitted to exist.

Much of Australia's constitutional law of political communication has developed because a system in which the people choose Parliament cannot function meaningfully without sufficient freedom to exchange political information and opinion. The implied freedom is not an American-style personal right to speak. It is a constitutional limitation on government power protecting the operation of representative government. That is why calling it an "implied right of free speech" causes endless confusion. It is not a general individual right.

The question is whether a law burdens political communication and, if so, whether its purpose and means are compatible with the constitutionally prescribed system of representative and responsible government. Recent High Court formulations continue to ask, in substance, whether there is a burden, whether the purpose is legitimate, and whether the measure is reasonably appropriate and adapted to advancing that purpose compatibly with the constitutional system.

The plaintiffs say Part 5.3B is different in degree and kind because it can effectively destroy the organised vehicle through which a political association speaks, recruits, raises resources and attempts to participate electorally. Their submissions characterise the regime as empowering the executive to eliminate a political speaker from the constitutional system.

The Free Speech Union, seeking leave as amicus, concentrates heavily on this point. It argues that burdens affecting political parties warrant particularly close attention because political parties are institutional mechanisms through which citizens aggregate political preferences and participate in representative government.

And then there is Chapter III.

The Minister does not need a prior conviction to conclude that an organisation engaged in hate-crime conduct. The Minister does not have to provide procedural fairness when forming the relevant statutory satisfaction. The organisation is then listed through regulation. After listing, continuing membership and various forms of support become criminal offences.

The plaintiffs say this amounts to the executive making an adjudicative determination of conduct conventionally associated with criminal wrongdoing and then attaching punitive consequences to the resulting status. Their Chapter III submissions emphasise that designation can turn membership, support, recruitment and associated conduct into serious offences without the antecedent hate-crime allegation first having been established by criminal conviction.

The Communist Party shadow and the constitutional irony

Hovering over the whole case is 1951. The Menzies government's Communist Party Dissolution Act 1950 outlawed the Australian Communist Party and created mechanisms for dealing with organisations and individuals associated with communism. In March 1951, the High Court held the legislation invalid. The government then took a proposal to expand Commonwealth power against communists and communism to a referendum later that year. The referendum failed.⁸

This case mirrors that one. Then, as now, the government of the day decided that a political movement was too hostile to the existing political order to be allowed to contest it. Then, as now, the Commonwealth argued that the danger posed by that movement justified extraordinary federal power. Then, as now, the identity of the litigant was used to distract from the only question that matters: whether the federal government actually possesses the constitutional power it asserts.

The Labor government is asking the Court for a licence to dissolve a political organisation because the executive is satisfied that the organisation is "hateful", which is entirely nebulous and subjective. If this is a liberal democracy, both cases should be seen the same way. The Communist Party was entitled to exist as a political organisation even though the government of the day regarded it as an enemy of the constitutional order. The organisation now being listed is entitled to exist on the same principle, even though this government opposes them. In a liberal democracy, people decide who they want at the ballot box.

If the Commonwealth wins

If the Court sides with the Commonwealth, this is the end of democracy in the only sense the Constitution actually guarantees: that senators and members are directly chosen by the people from among the political organisations the people are still allowed to form.

If a new party arose in Australia whose policies explicitly advocated for remigration or mass deportation, like Restore in Britain, it would sit under the same ban hammer.

Which makes the timing of this even more suspicious. Australia has had forms of National Socialist political organisation since the 1960s. The Australian National Socialist Party was founded in 1962. The National Socialist Party of Australia followed in 1967, published material, organised publicly and even ran candidates. They were never banned as a hate group, but perhaps this was because of their political irrelevance.

The rollout of laws is only happening now because the Labor government appears nervous that movements further to the Right have stopped being politically irrelevant and could potentially become a serious electoral force: one capable of siphoning votes away from the major parties, feeding preferences into right-wing minor parties and ultimately delivering those votes to parties such as One Nation.

And horrifyingly, the hammer of a political ban even hangs over One Nation.

Even if One Nation itself is never listed, the regime still does the work. It can ban everything to its Right. It can shut down One Nation's ability to gain preferences from further-Right alternatives in the same way that Greens, socialist and other Left-wing parties funnel preferences back toward Labor. And it forces One Nation to police its own side internally: to purge the language, personnel and political energy that give protest movements their force, and to neuter itself as the price of remaining safely on the legal side of the line.

Australia would not need to abolish elections to arrive at that destination. It would only need to keep them while allowing the executive to decide which political organisations are permitted to contest them. That is not liberal democracy. It is guided democracy or a multicultural police-state.

And that is the question the High Court will hear next week. If the Commonwealth wins, Australia will retain the label of "liberal democracy" only as a constitutional fiction. A free country is not one in which citizens are only permitted to place a number beside a name every few years. It is one in which they are free to organise politically and to decide for themselves which of those movements deserve power.

Australians may still be allowed to vote, but if the Commonwealth wins they will no longer possess, in any meaningful sense, the freedom to choose.

https://thenextweb.com/news/australia-news-bargaining-incentive-passes-parliament

https://www.aph.gov.au/parliamentary_business/committees/senate/legal_and_constitutional_affairs/completed_inquiries/pre1996/treaty/report/c05

Commonwealth of Australia. (2026, August 14). Written submissions of the defendants: White Australia Party Inc. & Anor v. The Commonwealth of Australia & Anor (M50/2026) [Court submission]. High Court of Australia. https://www.hcourt.gov.au/sites/default/files/2026-08/WAP-Cth_Def.pdf

United Nations. (1966, December 16). International Covenant on Civil and Political Rights. Office of the United Nations High Commissioner for Human Rights. https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-civil-and-political-rights

White Australia Party Inc., & Sewell, T. (2026, July 29). Plaintiffs' written submissions: White Australia Party Inc. & Anor v. The Commonwealth of Australia & Anor (M50/2026) [Court submission]. High Court of Australia. https://www.hcourt.gov.au/sites/default/files/2026-07/WAP-Cth_Pltf.pdf

Ibid

PART 2 – HISTORY OF AUSTRALIAN REFERENDUMS

https://celina101.substack.com/p/the-court-case-that-decides-whether