White Australia Party Hearing: First-Hand Overview, Opinion and Assessment

Background: Australia attempts to ban the White Australia Party

Lone Patriot  @LonePatriot14

White Australia Party Hearing: First-Hand Overview, Opinion and Assessment

The White Australia Party and its legal representatives took to the High Court over the last two days, to pitch their oral arguments to the court, that are built off all the already filed material.

The plaintiffs (White Australia Party) opened the hearing, pitching their three arguments on the first day, and fielding questions from the bench.

The Commonwealth began their defence in the last hour of day one, and into day two.

The state interveners made their arguments in the latter half of the second day, and finally the plaintiffs had a final opportunity to rebut and reply before the case was concluded, and judgement reserved.

Day One

The proceedings were opened to a packed gallery of journalists, members of the public supporting the case’s merits, and members of the legal sphere and students interested in the case.

Peter King, acting for the White Australia Party, began by addressing his arguments in chronological order, first beginning with argument one, the lack of head of power, dismantling how the Constitution shouldn’t be voided or subordinated by international treaties, and how this case mirrors the Communist Party Case identically.

He effectively argued how the legislation reaches well beyond the treaty’s scope and doesn’t provide for any consideration of political rights in its current form, and that this implementation “trashes the treaty obligations, political, and civil rights obligations”.

King also outlined how the bill “retroactively reaches back to the cosmic dawn”, with no time limit on what previous behaviours (that were legal at the time) could now be considered as hate crimes for listing.

Shahed Sharify, junior barrister, presented the second argument, the implied freedom of political communication.

He provided good working analogies of how expansive the definition of a “hate crime” is in this bill, and how it may capture something as simple as expressing anti-American sentiment, due to the wording being so loose.

He used an analogy that simply saying, “someone wants to destroy an American flag”, is enough to constitute proscription if the Minister is motivated enough to ban an organisation.

Peter King resumed to cover argument three, that the separation of powers was being breached by conferring the power to proscribe an organisation to the Minister, with no court involvement other than finding of guilt if one continues to be a member.

For the first couple of hours, some of the bench seemed quite hostile towards the White Australia Party, especially Justices Beech-Jones, Gleeson and Edelman. But they softened throughout the day and seemed to be moving in the direction of the WAP as time went on into lunchtime.

The justices all seemed very receptive to the Chapter III Separation of Powers argument, asking numerous questions that only strengthened the WAP’s arguments.

Edelman was one of the most hostile and for the longest of all the justices, asking a total of 4 times over the first day whether it was possible that the party could just continue “without the race hate”, and if they “dropped the race hate, and focussed on cost of living, would that be permitted?”.

To this, Peter King and Sharify both explained that the breadth and width of the law is so wide, and the past behaviour of new members is transferrable to new organisations.

Later in the afternoon, Brendan Lim SC for the Commonwealth also begrudgingly admitted the same, and that members of a new entity could still be charged and jailed due to the open ended “phoenixing” language.

Edelman also at points tried to push a line of questioning that “the concept of the nation in 2026 is very different rather than in 1950”, and another line of questioning that presented a theory that banning the WAP allowed for “minorities” to participate more freely and without fear in “representative democracy”.

Edelman eventually gave up his angle of trying to look for upholding this bill, severability or “reading down”, and seemed to move to the idea that the bill was completely toxic, after all of his hypotheticals were refuted by both King and (begrudgingly) Brendan Lim for the Commonwealth.

When Brendan Lim SC opened his arguments for the last hour of the first day, the justices came out extremely strong against him from the get-go.

They spent the time grilling him on how the definition of hate crime is so loose, how the breadth and width of the law is so grand and could capture basically any political action.

At first, to observers it had seemed like the justices were being harsh on the WAP, but that was nothing compared to the serving that Lim got when he began.

They basically one-shotted him immediately with hostility and questions that highlighted the audacity of this legislation as soon as he stood up.

The justices immediately questioned Lim on why less restrictive means and laws couldn’t be used, why the State Crimes Acts or Commonwealth Criminal Code couldn’t just deal with individuals if they personally commit a crime.

To this, Lim admitted that the legislation was “targeted” to “degrade and disrupt the organisation”, which seemed to not sit well with the Justices at all, especially Chief Justice Gageler.

Day one concluded after an hour of Lim being grilled and the court then adjourned for the next day.

Spirits were high and supporters of the case and onlookers were optimistic after seeing how much the justices were hammering Lim.

Day Two

Day two opened with an echoing affirmation of “God save the King” by Thomas Sewell and associates in the courtroom, when the phrase was used by the clerk to open the court.

Lim resumed his defence of the legislation. His focus for the entire day was attempted “justification” of the legislation’s necessity, due to it upsetting the feelings of minorities and spreading “race hate”.

He attempted to defend the treaty’s legitimacy and argued that it wasn’t an over-implementation of the treaty’s requirements, to which the justices seemed not very receptive.

They also again criticised the looseness of the wording, shady and inconsistent definition of what a “hate crime” is, and at one point asked Lim what “training with a prohibited hate group” means in this bill’s context and how there is “no definition”.

To this, Lim replied that the group in this context does “physical fitness training”, which the justices seemed to think was not an offence and was ludicrous.

Lim spent the majority of his time giving overly emotive descriptions on how the burden on the implied freedom of political communication is justified because the group has an “ongoing risk of inspiring violence in others on the periphery”, and that “harm to the community is caused by the presence of the group… caused by the internet”.

Lim tried to say at one point, that there is no “net-burden” on political communication, because whilst the WAP is restricted from organising, minorities are therefore empowered to speak, so therefore it is a net-win for free speech.

Chief Justice Gageler pulled him up on it harshly and said there was no such thing under the law as calculating “net-burden” on political communication.

Almost all of Lim’s argument was emotional in nature, and was complete ASIO-language, and left-wing intellectual pseudo-science language.

The Justices at one point questioned whether even if the group is shut down, if three former members went and handed out pamphlets of a new entity, or even a non-entity, and they had objectives or similarities of the previous group’s objectives, could they be captured under this legislation for either phoenixing or continuance and be charged?

To which Lim quietly admitted yes, to the seeming dissatisfaction of the justices.

Lim was also questioned heavily on whether a new political party, if it included the “same leaders, or members” would be free to operate, to which he admitted that it would “capture” a new political party. This was also seemingly viewed negatively by the justices.

All through day two, it seemed like the arguments King had made on the day prior, had resonated with the justices, and that they had returned on the same wavelength that the bill was completely toxic and unsalvageable.

Every line of questioning they made to Lim, seemed to steelman Peter King’s arguments even further, with Lim having to constantly concede that the law was so expansive, so broad, so onerous, and poorly drafted.

The state interveners spent their allotted time mostly pushing back against the prospect of the Court finding a new expansive judgement on the nationhood power, an argument the Commonwealth uses in their argument one. That the Commonwealth can ban the WAP to secure the nation from a threat.

The Justices expressed agreement with this and implied through their questioning that the Commonwealth had taken a very expansive view of the nationhood power, that wasn’t in line with the Constitution.

The states agreed with the Commonwealth on the other grounds.

Peter King returned to rebut arguments that the Commonwealth had made, specifically strengthening the separation of powers analogy even further, and dismantling an argument made by the Commonwealth that the proscription was similar to the prohibiting of drugs such as cocaine, and the case was concluded.

Conclusion and Assessment

Personally, I think the justices were receptive to the arguments King made, and very disappointed with the arguments that Lim made in attempted defence of this legislation.

All the questioning the justices gave to Lim, seemed to only strengthen the arguments made by King on the day prior.

Chief Justice Gageler was seemingly receptive immediately, and Justices Beech-Jones, Gordon and Gleeson were seemingly won over on the first day as time progressed.

Edelman was the last to seem to move, after he explored all his options for if the group could just continue in another form and not be racist, and whether the same individuals would be captured under new formations.***

Justice Jagot was silent the entire first day, and didn’t attend the second day due to apparent illness or similar. Jagot will still cast judgement and will assess via transcript for day two.

Justice Steward, who is the most negative and in his previous judgements doesn’t even believe the implied right to political communication exists, didn’t sit for the hearing, with reason unknown.

Because of Steward’s absence, it makes the decision required only 3 out of 6 Justices, with Chief Justice Gageler acting as a tie breaker if required.

I believe the justices were most receptive on the Chapter III arguments (separation of powers), as the way it was put to them by both Lim and King was completely rotten constitutionally and seemed unworkable.

The second strongest argument is likely argument one, the Communist Party principle and the dismantlement of the treaties.

The justices made strong reference to previous case law precedent about the “lighthouse principle”, that just because a treaty says to ban lighthouses, doesn’t mean the Commonwealth can start calling anything it wants a lighthouse and therefore ban it.

I think the third strongest argument is the implied freedom of political communication argument, and they were receptive that there is a very strong burden, that is hard to justify.

They questioned Lim heavily on the fact the law was overbearing and that less restrictive means could’ve been used. However, I think the justices will still be hesitant to write a judgement bolstering or even touching the implied right to political communication.

The justices will come to a decision based on all the filed material and legal submissions, which are strongly in favour of the White Australia Party (as I’ve already outlined in earlier articles), as well as the oral argument and questions asked by the justices.

Personally, I am cautiously optimistic in the success of the case, and look forward to the judgement to come in an expected 6 to 12 weeks.

It was an incredible experience, to watch and be in the highest court of the land, fighting for the existence of a party to represent a future for White Australians.

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