The White Australia Party’s application for temporary legal protection from Labor’s prohibited hate group laws has been dismissed by Australia’s top judge.
High Court Chief Justice Stephen Gageler ruled on Thursday there were no “compelling grounds” to overturn the legislation before the full court hears the White Australia Party and Thomas Sewell’s legal challenge to its constitutional validity in September.
The laws, passed by both major parties in response to the Bondi Islamic terrorist attack, were used to list the party last month and instantly made it illegal to direct, be a member of, recruit for, train, fund or support the group, punishable by up to 15 years’ imprisonment.
Justice Gageler found there was no dispute that the case was serious and has major implications for the implied freedom of political communication, but ruled that there was no risk of “irrevocable and irreparable harm” to the Party and Mr Sewell while it was being decided.
He ruled that the risk of cancellation of the Party’s incorporation in Victoria was “real and substantial”, but said that would not be addressed by the injunction, and wrote that an injunction would also not lessen the risks of prosecution under the laws.
“Undoubtedly, Mr Sewell and other current members of the Party are in jeopardy of committing offences if they choose to maintain their membership or
participate in activities of the Party pending the final determination of the proceeding,” he wrote.
“Those, however, are risks inherent in the existence of the impugned provisions for so long as their validity remains undetermined. The risks would not be lessened by any temporary restraint of their enforcement or implementation.”
He also noted that there was “no suggestion” that the laws “prevent the Party or Mr Sewell from continuing to engage and instruct its legal representatives to prosecute this proceeding to its conclusion”.
Justice Gageler refused the Commonwealth’s application for costs, and deferring costs to the final hearing.
Mr Sewell said in a statement on Telegram after the decision that he would seek legal advice on whether he could launch “further fundraising for the purpose of engaging in legal representation”.
“The full hearing will commence mid September to determine the validity of the Hate Crimes Legislation and therefore the Constitutional right for the White Australia Party to exist and contest elections,” he said.
Barrister Peter King, appearing for the White Australia Party and Thomas Sewell, told the court on Wednesday an injunction was needed to prevent the party from being “extinguished” by the hate group laws.
Mr King told the court the party had already been sent a show cause letter from Victorian authorities, as it is registered as an incorporated association in that state, warning it was understood to have been rendered “not in operation” by the hate group laws, and that its registration would be cancelled by June 25 and the party wound up as a result.
He told the court this put the party at imminent risk of “extinction” well before the main case is decided in September, resulting in the loss of operations, funding, and the ability to communicate politically and campaign, making the final outcome redundant and resulting in damages that could not be remedied.
“Will the court preserve its jurisdiction? Or will the case be rendered futile?” he asked.
Brendan Lim SC for the defendants argued that the White Australia Party could challenge any decision by the Victorian registrar to cancel the party, and told the court that preventing the Commonwealth from utilising the hate groups laws would be “deleterious to the public interest”.
Mr Lim told the court that preventing the criminal offences enlivened by the White Australia Party’s ban from being enforced would expose the community to harm and the risk of violence
He argued the laws were designed to prevent the White Australia Party from carrying out “certain activities” mentioned in the reasons for the hate group listing, which he alleged carried the risk of physical violence.
Mr Lim told the court the offences were also designed to protect the community from the White Australia Party’s “ideology and rhetoric”, which he alleged had a “broader risk” of inspiring non-affiliated individuals to commit acts of “serious violence”.
The September case will determine whether the laws, which experts and politicians have warned could be used to ban any party, infringe upon the freedom of political communication granted to all Australians under the constitution.
Header image: Left, Stephen Gageler (High Court of Australia). Right, Thomas Sewell outside court last year (supplied).
