Anne Twomey: Welcome back to the Constitutional Clarion!

 

The Commonwealth Government has made a regulation that classifies White Australia, or the White Australia Party, as a prohibited hate group. The party has now commenced a constitutional challenge in the High Court to the validity of that law, which will be heard in September. In the meantime, there will also be a hearing in the first week of June which of an application to suspend the effects of its prohibition until the Constitutional case is determined. In this video, I’ll try to explain some of the arguments that will be run in the Constitutional challenge.

 

But first, a bit of a recap on what the law does.

 

Now, for those of you who want more detail, see my previous video, which was called How the New Federal Hate Laws Work.

 

The power to prohibit hate groups was enacted in the Combating Anti-semitism, Hate and Extremism Criminal and Migration Laws Act in January 2026. It inserts a new part 5.3B in the Commonwealth Criminal Code. It authorises the Governor General, acting on the advice of the Australian Federal Police Minister, to make a regulation designating a group as a “prohibited hate group”. The Minister must be satisfied on reasonable grounds that the group has engaged in conduct constituting a hate crime or been associated with a hate crime.

 

For example, by:

 

“Preparing, planning or assisting a hate crime, or advocating engaging in such conduct. The conduct of formal or informal members of the group can also be attributed to the group.”

 

So if rogue members of a group incite racial hatred or advocate violence based on race, that might well be sufficient.

 

Now, you might think that the term “hate crime” means that the group or its members actually have to have committed crimes! But that’s not so! The law says that:

 

“No crime needs to have been committed, no one needs to have been convicted by a court, and conduct can be a hate crime even though it happened in the past when it wasn’t a crime. It’s enough for the Minister to be satisfied on reasonable grounds that the group has engaged in or been associated with the conduct constituting a hate crime.”

 

This means that it’s the Minister, rather than a court, who assesses that the group has engaged in such conduct. There’s no independent assessment of whether that conduct occurred, whether it satisfied the terms of any offence, whether it could be attributed to the group or whether any defences apply. In some cases, the Minister would have to also be satisfied that the conduct would:

 

“Cause a reasonable member of the targeted group to be intimidated, to fear harassment, or violence or to fear for their safety.”

 

These matters are quite impressionistic in nature and ordinarily they are determined by a court after hearing relevant evidence.

 

But under part 5.3B, it’s just up to the Minister to be satisfied without evidence, without a hearing and without procedural fairness.

 

Moreover, it seems that the conduct in many cases could have occurred at any time in the past, no matter how long ago, and certainly before that conduct became an offence.

 

Given the past rhetoric of members of political parties about racial, immigration and refugee matters, it would not be hard to satisfy this criteria in order to ban any political party! Making this a very dangerous weapon for a future authoritarian government to use.

 

There are, however, some further hoops to go through before a grip can be banned:

 

“The Minister must be satisfied, on reasonable grounds, that banning the group is reasonably necessary to protect the Australian community, or a part of it from social, economic, psychological and physical harm.”

 

But “psychological harm” could mean almost anything. And its stated in the act to:

 

“Include harm caused by the continued presence in Australia of the group that has engaged in or been associated with hate crimes.”

 

So it’s actually a self fulfilling condition!

 

More significantly, the Minister must have received advice from the Director General of Security, who’s the head of ASIO [Australian Security Intelligence Organisation], recommending the group be banned because it has:

 

“Engaged in activities that are likely to increase the risk of politically motivated violence or communal violence, or has either itself advocated for or engaged in such violence, or there’s a risk that it might do so in the future.”

 

So it covers activities that do not themselves constitute or cause harm, but simply if there’s a risk of harm.

 

While one might trust ASIO to make that assessment fairly now, one cannot guarantee it for the future. If, for example, an authoritarian leader placed a crony in the Office of Director General of Security. It’s therefore some protection from the abuse of the power, but not great protection.

 

The Attorney General must also sign off on any ban and the Leader of the Opposition must be briefed, and that’s it! Once this process is completed, a group can be designated a “prohibited hate group”.

 

Now, to be clear, this does not involve convicting anyone of a hate crime. It’s an administrative act to ban a group. But the consequences of that ban are serious! Continuing as a member of a prohibited hate group, if you know that it is prohibited and you haven’t taken reasonable steps to end your membership, that’s an offence with a penalty of up to 7 years in jail! Directing the activities of a prohibited hate group can land you in prison for 15 years. There are other offences of recruiting for a prohibited hate group, training it or being trained by it, funding it or providing support for it, all with penalties ranging up to 10 or 15 years in prison. It’s also an offence to display any of the prohibited hate group symbols.

 

Now this brings us to the Criminal Code Prohibited Hate Group White Australia Regulations 2026. They state that White Australia, also known as WA, WAP or the White Australia Party, is a prohibited hate group. The regulations commenced on 16 May 2026.

 

The White Australia Party, of whose members were drawn from the since disbanded National Socialist Network, is an incorporated association registered in Victoria on 20th December 2025. Its registered purpose is:

 

“To advance the cultural, historical and ethnic interests of Australians of European heritage and advocate for immigration and population policies that serve the national interest and engage in lawful political advocacy, education and community activities to support candidates and policies aligned with its objectives.”

 

It claims to have 1, 779 members. It sought to become a registered political party at the Commonwealth level, but it’s not submitted the details of the names of its members as required. Presumably this is because it would provide evidence to the Commonwealth of its membership and of course membership, unless you take reasonable steps to get rid of your membership as soon as you find out that it’s a prohibited hate group, is a criminal offence! One would imagine that the number of party members is dropping rather quickly as a consequence.

 

On the 18th of May the White Australia Party lodged its constitutional challenge in the High Court. It’s arguing that Part 5.3B of the Criminal Code is invalid on three grounds.

 

One, the absence of a Head of Legislative Power to enact the law. Two, breach of the implied freedom of political communication. And three, breach of the separation of powers by vesting punitive powers in the Executive. Due to time constraints on doing these videos, I’m only going to discuss the first two.

 

The Commonwealth Parliament must have a Head of Legislative Power in order to enact a law. The White Australia Party claims that its position is similar to that of the Communist Party when it was dissolved by legislation. That legislation was found by the High Court to be invalid due to the absence of a Head of Power. In the Communist party case in 1951, it was claimed that the law dissolving the Communist Party was supported by the Defence Power and by what we now call the implied Nationhood Power, which includes protection of the nation.

 

The High Court disagreed, finding that neither power supported the law. The White Australia Party asserts that the current law is not supported by the Defence Power or the Nationhood Power. It adds that the corporation’s power is also not applicable to it because the party is an “incorporated association” and not a corporation. It claims there is no Head of Power to enact part 5.3B.

 

Now, three issues arise here. First, while the Defence Power was held in the Communist Party case not to support the relevant law, more recently in the case of Thomas and Mowbray in 2007, the High Court took a much broader view of the scope of the Defence Power, particularly in relation to terrorism and the protection of the people of the nation from violence.

 

The reasoning in the majority judgements is so poor that it’s actually quite difficult to pinpoint the rationale.

 

But it seems that the majority rejected the view taken of the scope of the defence power in the Communist Party case and that the Defence Power in section 51.6 of the Constitution now extends to matters concerning national security and the risk of internal violence within Australia. Whether it would extend further to the prohibition of a political party and whether such a law would satisfy a proportionality test would be a matter for argument.

 

Second, the scope of the Nationhood Power has also been expanded by the High Court, with a majority in the PAPE case regarding it as a power to deal with national emergencies. There might be scope for the Commonwealth to argue that the prohibition of hate groups is necessary to protect the Commonwealth against internal threats and that it’s a matter peculiarly adapted to the government of the nation that cannot otherwise be carried out for its benefit. Which is critical part of the test for the Nationhood Power. Again, however, a proportionality test may apply.

 

Reliance on either of these powers would prove difficult because it would be hard to satisfy a proportionality test in relation to either Head of Power, given the breadth and vagueness of the application of Part 5.3B, as explained earlier.

 

Third, we have the External Affairs Power. This is the power expressly relied upon in Part 5.3B of the Criminal Code. It states in section 114A.1 that:

 

“One of the objectives of the Part is to give effect to Australia’s obligations under articles 20 and, 26 of the International Covenant on Civil and Political Rights, known as the ICCPR, and Articles 4A and 4B of the Convention on the Elimination of all forms of Racial Discrimination, known as CERD.”

 

Articles 20 and, 26 require:

 

“The prohibition of incitement of racial hatred and the protection of people against racial discrimination.”

 

Part 5.3B, of course, goes much further than that! So they’re not terribly helpful.

 

The most relevant treaty provision, however, is Article 4B of CERD. It says that:

 

“State parties shall declare illegal and prohibit organisations which promote and incite racial hatred and shall recognise participation in such organisations as an offence punishable by law. Article 4A also requires parties to make an offence punishable by law the provision of any assistance to racist activities, including the financing thereof.”

 

A proportionality test also applies with respect to the implementation of treaties. The law must be:

 

“Reasonably capable of being considered appropriate and adapted to implementing the treaty obligations.”

 

In this case, Part 5.3B or at least most of it, would seem reasonably capable of being considered appropriate and adapted to implementing Article 4 of CERD.

 

So it’s likely that a Head of Power will be found to support it.

 

This is subject, however, to the key issue that arose in the Communist Party case. In that case, it was accepted that the Commonwealth Parliament could enact a law against subversion. But the Communist Party Dissolution Act did not itself prohibit subversion. It instead authorised the Governor General, acting on ministerial advice, to declare associations and individuals to be communists on the basis asserted in a recital in the preamble to the Act, that Communists engage in subversion. The connection between the law and the power was based on a decision of the Executive, the Governor General, on the advice of the Minister, not by a court!

 

Now, this led to the law being struck down as invalid. Part 5.3B of the Criminal Code sails perilously close to that same problem! It’s the Minister and the Governor General who determine that a body is a “hate group”, connecting the law to the power to enact it without there being any judicial determination that a hate crime has ever been committed.

 

But there are also differences. Part 5.3B, for example, applies generally, not just to a particular group. It doesn’t rely on recitals in a preamble. And there’s greater facility for administrative review of executive decisions than there was back at the time of the Communist Party case.

 

So it will be interesting to see what a court makes of those similarities and differences in the course of this challenge.

 

The next issue is the implied freedom of political communication. This is most likely where the Constitutional problems will arise. Would the designation of a group, including a political party, as a “prohibited hate group”, burden the implied freedom of political communication? Well, the answer to that must be, yes!

 

So we move on to the next part of the test. Does Part 5.3B have a legitimate purpose that is compatible with the Constitutional system of representative and responsible government? The High Court held in Farmer and the Minister for Home affairs in 2025 that:

 

“Prohibiting incitement of Discord in the Australian community was a legitimate purpose to the extent that this meant preventing harmful dissension or strife, including intimidation, vilification or victimisation on a large scale in the Australian community or within or amongst segments of the community. But it would not be sufficient if only the feelings or sensitivities of the Australian community, or a segment of the community would be hurt or adversely affected. Parliament cannot use its legislative power for the purpose of curbing political disagreement and debate inside Australia. The purpose must be directed at preventing material harm to the Australian community, or a segment of that community, rather than merely eroding social cohesion through disagreement and debate.”

 

The Objects clause in section 114A.1 of Part 5.3B, however, goes broader than that. It states that:

 

“The object is to protect the Australian community, or part of it, against social, economic, psychological and physical harm and from the promotion of violence by prohibiting organisations that engage in, prepare or plan to engage in or assist the engagement in, or advocate engaging in conduct constituting a hate crime and to give effect to those treaty obligations (that I mentioned).”

 

It will be a matter for argument in court about whether that actually is the purpose of Part 5.3B, and whether it’s a legitimate purpose, taking into account the qualifications given by the High Court in the Farmer case.

 

If the law has a legitimate purpose, the final question will be whether Part 5.3B is reasonably appropriate and adapted to serve the legitimate end, whatever that is, in a manner that is compatible with the Constitutionally prescribed system of representative and responsible government.

 

Now this is where all those problems that I raised at the beginning of this video about the breadth and the vagueness and the discretion in these provisions will become important. One could imagine that a far more narrowly tailored law could achieve any legitimate end without imposing such an extreme burden on political communication.

 

In short, there is a good argument that it is disproportionate in its application.

 

The outcome, of course, will depend upon how it is argued before the court, which none of us can dictate or predict. It will also require putting aside any personal objection to the plaintiff in this case and its ideology, and instead place the focus squarely on the long term application and the validity of this law.

 

Thank you once again for watching or listening to the Constitutional Clarion and I look forward to your company again next time. Goodbye.

 

[19:30]

 

 

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Youtube Comments

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(Comments as of 5/25/2026 = 174)

@husaberg650
2 hours ago
But we can have Communist Parties.
13

@holobiont3197
3 hours ago
Not convinced they fully thought through the acronym WAP.
8

@richyglitched
4 hours ago
The primary function of discrimination for the group is enough to have it outright banned. Lumped with the Bikies
4

@benhall8172
6 hours ago
If WAP can be declared a hate group and then have every member jailed, so can any political party or group the Govt of the day doesn’t like when the language is so vague and broad anything can be construed as illegal: Three Felonies a Day
16

@farright118
6 hours ago
These laws are so undemocratic.
I’ll be shocked if these laws aren’t thrown out
27

@andhewonders
7 hours ago
I’m curious that if these groups form themselves into a religious body, will hate laws still apply?
8

@constitutionalclarion1901
2 hours ago
Probably yes. Section 116 of the Constitution says the Commonwealth shall not make any law for prohibiting the free exercise of any religion – but that has been interpreted as subject to limits (eg if it is part of your religion to engage in human sacrifice, etc). You cannot use religion as an excuse for engaging in criminal conduct.
8

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@malcolmfletcher7295
8 hours ago
I find it interesting that the Federal Government spontaneously decided that such a law was a good idea.
7

@hillstrong715
8 hours ago
The problem with this is that an administration change can take out any and every group that the government of the day finds objectionable. So any group that objects to any of the policies of the government of the day can be banned by simply defining the objection as hatred. Bad news for everyone in this nation, most particularly anyone who is a citizen.
11

@obliviouz
9 hours ago
Thank you for another informative video. Given the fact that the law almost expressly provides for punishment without (full) involvement of the Courts, I would be interested in the third issue referred to, the separation of powers point. That was a point taken and relevant to a recent determination in a visa/immigration detention/terrorism case if I remember correctly.
3

@constitutionalclarion1901
2 hours ago
Yes, it’s a far more complex issue and would require quite a bit more work on my end. I just haven’t had the time for it so far. But maybe in the future.
1

Hide replies

@Lucid-AUS
9 hours ago
Very informative thank you

@constitutionalclarion1901
2 hours ago
You’re welcome.

Hide replies

@caboose00f76
9 hours ago
Man these comments are wild. The creepers coming in from Pauline’s lot and the Trumpers. What a mess these people are.
5

@lukepaul7931
10 hours ago
I dont like them but i wish the government didnt block them. They are a pressure relief valve that has been blocked.
2

@__Max-oe6zm
10 hours ago
It’s an interesting situation for sure.
1

@steveliveshere
10 hours ago
Considering everything that’s going on in the world a White Australia Party is more concerning than a communist Party.
2

@mahcooharper9577
10 hours ago
I’m sure you could find someone who is genuinely distressed by the presence of ANY group in this country.
It’s a very poorly thought out piece of legislation, and as mentioned a terrifying weapon for an authoritarian to use.
Irrespective of who the group is who is currently proposed to be banned, I hope they can succeed in having the law overturned.
6

@JamesThomas-n3q
11 hours ago
Thanks Anne for the informative video. Always a helpful watch for those of us who want knowledge on the laws both current and upcoming.
11

@constitutionalclarion1901
2 hours ago
Thanks. I very much appreciate it, as it does take quite a bit of effort to do these videos.

Hide replies

@therig.88
11 hours ago
If we don’t have freedom of political opinion.. do we really have freedom? Or free ideas in a democracy?
32

@richyglitched
4 hours ago
We don’t put up with criminal organisations like the Mafia or Bikies..

Hide replies

@not.rumple.stiltskin
11 hours ago (edited)
They really threw the toys out of the cot with this one.
sooo being unpleasant to someone is unlawful seems to be the goal.
also how is the reasonableness of a person measured?
17

@sylviaelse5086
11 hours ago
Is there anything to prevent the president of the group from being arrested and charged with directing the activities of a prohibited group while the group is litigating?
9

@constitutionalclarion1901
2 hours ago
That was an issue raised the other day when they sought interlocutory relief (which will now be dealt with in the first week in June). As Justice Jagot mentioned, it is likely that any prosecution would be stayed until the constitutional issue was resolved.

Hide replies

@CaptainKremmen
11 hours ago
You say that it could be misused by a “future authoritarian government”. Surely simply creating such a law working totally outside the judicial system means we already have a current authoritarian government.
50

@Pastor-of-muppets1985
11 hours ago (edited)
How does it operate outside the judicial system? It’s currently being challenged in the HCA.
1

@mahcooharper9577
10 hours ago
​ @Pastor-of-muppets1985 if the HCA rules it is valid there is no further review, and no review is applicable to a Minister’s decision.

@constitutionalclarion1901
2 hours ago

@mahcooharper9577 – No, that’s not quite right. If the HCA rules it is valid, then that just means the law is valid. It may still be the case that the Minister did not have reasonable grounds to make a decision and that this may be challenged on an administrative law basis.
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@yt.personal.identification
11 hours ago
Don’t attribute to malice, that which can easily be attributed to stupidity.
3

@hs-yr1zu
7 hours ago
@yt.personal.identification Doesn’t apply here. You don’t accidentally form a govt that delivers the 2nd worst record for secrecy and transparency of any govt since federation, and you don’t accidentally use a historic mandate to dismantle FOI laws as a first order priority. The authoritarian govt is well and truly here. If their contempt for democracy wasn’t clear enough, the latest budget should seal the deal, regardless of your view of the budget itself.
9

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@mendaciousferret819
12 hours ago
Instead of focusing on how effective our security services have been we get this. They failed and are now blaming it on insufficient power.
19

@AGoodYear-q2v
12 hours ago
Very interesting clip by this lady. Protecting freedom of political expression is critical – such an important decision for the High Court coming up.
28

@constitutionalclarion1901
12 hours ago
Thanks.
8

Hide replies

@scottn2046
12 hours ago
I’m curious – how much freedom does a Federal Government have to sign a Treaty and then use the External Affairs Powers to claim a Head of Power that otherwise wouldn’t exist? Can it be used as a “Magic Head-Of-Power Tree” potentially initiating a treaty with co-operative countries with the intent of creating a Head Of Power that it doesn’t have, but would like??
6

@constitutionalclarion1901
12 hours ago
The High Court has said that it must be a ‘bona fide’ treaty (see Tasmanian Dam case). You can’t just go shopping for a treaty or bribe a small country to enter into a treaty to give you a head of power. But so far there has been no case where the validity of a law has been struck down because the treaty was not a bona fide one – probably because the Commonwealth has not been game to push its luck on this point.
5

@andrewjgrimm
11 hours ago
One of the past CC videos touched upon it. Sorry I can’t tell you which one.

Hide replies

@EAFSQ9
12 hours ago
I’m just here before the comments get locked due to the PHON types and White Australia Party members brigading this video
6

@therig.88
11 hours ago
You afraid of different opinions 😂 may the best man win in the land of ideas.
23

@Pastor-of-muppets1985
11 hours ago
So no opinion then? Just wanted to get a comment in?
16

@steveliveshere
10 hours ago
@Pastor-of-muppets1985 its not an opinion mate its fascim.

@mahcooharper9577
10 hours ago
If Trump was in charge here and was banning left wing activism groups I suspect you wouldn’t mind those groups objecting.
You need to step outside who it is and whether you personally support them and think about what this law actually means.
3

@homelander-enjoyer
12 hours ago
Better not let them have opinions in our brave little democracy!
34

@trunkage
11 hours ago
​ @homelander-enjoyer Unfortunately, their opinions is taking everyone else opinions away
Either way, someone is going to lose their opinion
1

@ricochet2977
10 hours ago
@trunkage
Who is taking your opinion away, didn’t you just state your opinion?
4

@constitutionalclarion1901
12 hours ago
Yes – shut down will happen soon, as I don’t have the time to keep monitoring the comments. I’m afraid I have other work I have to do.
9

Hide replies

@duncancargill6371
12 hours ago
As opposed to any and all forms of racism as I am I see this legislation as a draconian over reach open as it is too absurd levels of abuse. Also it is puzzling that the same government that enacts this legislation for, inpart, to protect social cohesion at the same time acts to destroy social cohesion with it’s immigration detention policy?
19

@CaptainKremmen
11 hours ago
It’s especially ludicrous to make arbitrary laws aimed against the White Australia Party, a tiny group of around 1500 members. The group is so small that it would be sensible to just ignore it, unless it commits any actual crimes. This kind of heavy-handed legislation is more likely to give them free publicity and possibly even support.
8

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@SuperLloyd84
12 hours ago
Forcing people to give up their association seems like such a smart idea. I’m sure this won’t anger any radical elements and drive them underground, or give them a grievance they need to resolve.
24

@CheekyJebus
10 hours ago
giving people 15 years in prison for wrong-think strips them of having a peaceful route to seeking change in the country, that’s never a good idea.
4

Hide replies

@Margarinethebutterlover
12 hours ago
Great vid, thanks. Under these same circumstances, your own media may well be under attack.
6

@constitutionalclarion1901
11 hours ago
I try to weed out the comments that would breach existing laws, but it’s always possible I will miss some, or judge incorrectly which side of the law they fall. It is a real risk of running a channel like this – but I do try hard to ensure that the channel stays within the law.
5

@nationalistpolitics
9 hours ago
@constitutionalclarion1901 How could you possibly be held responsible for what other people post in the comments?

@constitutionalclarion1901
2 hours ago
Unfortunately, there are a number of cases in which the person who owns/runs the channel (or facebook page or blog) has been held responsible for the comments, as they did not take action to delete a comment (where that comment breaches an anti-hatred law) in a reasonable time. I didn’t make the law – but I do have to obey it.

Hide replies

@mathewritchie
12 hours ago
Under the rules outlined all the major parties could be defined as hate groups.
21

@Robert-xs2mv
12 hours ago
Besides I don’t “ hate” anything, I just disagree
10

@phwbooth
12 hours ago
Excellent analysis, ma’am. Thanks.
11

@constitutionalclarion1901
12 hours ago
Much appreciated.
2

Hide replies

@phwbooth
12 hours ago
Hate is a sin, and has not in the past been a crime ( Matthew 5:43–44 ) Only when it resulted in action was such an action punishable, and then (in England) by the Ecclesiastical Courts.
2

@dodecahedron-r7d
12 hours ago
They have redefined biblical principles and turned things into thought crimes and crimes of perception
Instead of 1:1 cause and effect, they have decided now that something is s crime when it’s one step removed from reality, thus if someone is offended now they have been harmed. The next stage will be pre-crime or being born into the wrong lineage
My biggest objection is that all these laws that keep proliferating at a rate society cannot ascertain the long term effects of, are not being agreed to by those who are expected to be governed by these laws, or ANY laws for that matter
It is part time laws were wound back and we reassess the very notion of law and it’s so called right to govern others, especially when 99% of laws are never agreed to by those placed under them and are asserted by nothing more than the violence of the state or by implied rights
5

@hs-yr1zu
7 hours ago
@dodecahedron-r7d The joys of postmodernism. The only objective truth is that truth is an oppressive social construct, so reality is as defined by any given individual. Now it’s enshrined in law and the ideology of our ‘democratic’ government. We might be cooked.

@DizzyButler
10 hours ago
Not sure if a biblical reference was made in the video that gave this comment more context and I just zoned out during that bit, but the Bible doesn’t say hate is a sin in it’s entirety. Romans 12:9 “hate what is evil, cling to what is good.” This ‘hate what is evil’ has been used as justification for actual hate crime historically and currently.
1

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@pmafi_eng
13 hours ago
Given Pauline Hanson’s past comments and actions against minority groups such as Muslims, Chinese etc.
Do you think it would possible for One Nation to be a banned group?
9

@LuckyLocust
12 hours ago
The laws are so vague and retroactive that likely any party could be banned. Just needs the minister to have the will to do so. Any party that said negrative things about the germans, italians or japanese during WW2 could be banned under these laws.
13

@mahcooharper9577
10 hours ago
Pretty much every political or activist group in the country has said something that could be considered hateful, on both the left and the right. This (aside from the legal issues) is the problem – it’s too vague and it’s antithetical to democracy.
2

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@peregrineh1620
13 hours ago
Seems a bit fishy that it’s left to the minister to determine – and after what we know about the lack of info sharing…seems dodgy….ministers are not capable! This is not a good idea.
7

@tomo9224
13 hours ago
As much as I hate speech being silenced, this is probably one of those videos where the comments section should be shut down, Professor
2

@nationalistpolitics
9 hours ago
“This legislation silencing free speech is bad”
“We will disable the comments so that people cannot discuss it freely”
???
4

@constitutionalclarion1901
2 hours ago
Unfortunately, the law requires me to do so – it’s not my choice. There have been several cases in which the person who runs a Facebook page, blog or channel has been held responsible under anti-hatred laws for failing to delete offending posts made by others.
1

@CheekyJebus
10 hours ago
nothing says democracy and education like not allowing open discussion.
3

@constitutionalclarion1901
12 hours ago
Yes, I’ll do so shortly.
2

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@jackhanley293
13 hours ago
We already give ministers too much power. Is this an attack on free speach
15

@worker-wf2em
13 hours ago
The antidote to hate speech is not censorship, but more speech. This is a lesson mankind consistently fails to learn. As soon as you hand those in power the ability to determine what constitutes acceptable and unacceptable speech, there is only one outcome. I vehemently disagree with everything White Australia stands for, but it is foolish to cheer any system of power censoring it.
19

@somluck2813
13 hours ago
Singapore and Malaysia use laws made by British to quash opposition groups.
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@MrTiddalik
13 hours ago
Never a dull moment
1

@lauchlanguddy1004
13 hours ago
I trust the courts. The law already allows an elected crony to make these decisions.

@somluck2813
13 hours ago
Given that act applies to historical statements made by the relevant party, the Australian Labor Party has from since Australia was established to at least the 1960s made racist statement, the ‘White Australia’ was part of its platform up to the 1970s, it would seem that questions can be raised in relation to the ALP.
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@Imagineering100
13 hours ago
This will cause nothing but problems.
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@dancarmody3789
13 hours ago
If the challenge is succesful and the law is found unconstitutional, it will affect all the other groups listed so far…. Hizb ut-Tahrir. What a crazy world we live in that white supremacists might end up helping Islamic extremists. One has to wonder if that they’ve even considered that outcome.
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@Jordz97
13 hours ago
No one has even heard of Hizb ut-Tahrir, once White Australia gets in Hizb ut-Tahrir will be deported lmao.
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@dancarmody3789
13 hours ago
@Jordz97 Lol, White Australia aren’t going to get in.
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@JamesThomas-n3q
10 hours ago
@dancarmody3789 if that’s what the government thought then they wouldn’t have banned the WAP.
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@TheKrispyfort
13 hours ago
Misogynists and xenophobes helping other misogynists and xenophobes.
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@williamhay3029
13 hours ago (edited)
Wondering if their arguments will be a mix of the best cooker material, mixed with badly misquoted sections from your videos and involve red/ green constitution.
Also coincidentally this has come out on the afternoon that John Safran has a new show on free speech in Australia, focussing on free speech laws such as this and whether it’s healthy to have these. And of course he then discusse and meets with NSN and learns how to give a decent Nazi salute
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@jimmy12347654
10 hours ago
Isn’t doing the NS salute a crime in a lot of states in Australia ? 😂

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@davidsullivan4449
13 hours ago
This was both awesome and very disturbing. I saw Rupert Lowe in the UK talking about similar trends in law whereby judgements that were usually made by juries are now being made purely by judges or a judge. I don’t really know the details but you know what I mean.
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@TheKrispyfort
13 hours ago
You should read up on NSW legislation and laws around compulsory possession of proceedings of criminal activity.

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@NelleBligh333
13 hours ago
It irks me as the granddaughter of a member of the Communist Party of Australia who only ceased to be a member when the party disbanded, to see this kind of legislation brought in to ban a political group when they tried to ban the CP twice and each time the ban was overturned by the High Court. You would think current members of Parliament would be aware of this history. Stop impinging on our right to political expression!
35

@PhilipGissing
10 hours ago
This former member of the Communist Party, who also was around when the party disbanded, couldn’t agree more!

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@2paulstacey
13 hours ago
A Nazi party won’t get many votes but any votes for it would be damaging to Australia.
2

@TheKrispyfort
13 hours ago
Apparently, “Nazi” was initially a derogatory nickname for Hitler’s political party.
Kinda like calling the Liberal Party the “Libs”
6

@CheekyJebus
10 hours ago (edited)
If they won’t get any votes why do we have to go out of our way to frantically ban them? (let alone criminalize any association with up to 15 years in prison)
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@stephenwellstriggers
13 hours ago
Too many numbskull’s in the comments who dont care about the tyranny inherrent in this law, as long as it stops “muh Nazis”. As President Kennedy said “thiose who make peaceful revolution impossible, make violent revolution inevitable”. The former leaders of the NSN and White Australia Party explicitly condemed terrorism and political violence to achieve their goals. What do you think all the young men who followed them are going to do if they think that strategy has failed? Ultimately the Government has shown it doesnt trust the Australian people to reject the White Australia Party at the ballot box.
46

@jimmy12347654
10 hours ago
It’s such a weak move that only pushes people underground, We have so little faith in our people and ideas that they need to swing the ban hammer so pathetic
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@supernoveau
14 hours ago
Which party has the burden of proof?
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@hevsa1507
14 hours ago
This is just a test as to whether we live in a completely corrupt system, or not.
None of this passes the pub test.
38

@JimmyCall
14 hours ago (edited)
I posted a comment on this subject in previous video, but deleted it due to mistakes/poor structure. The topic is some of the most complicated argument/dilemmas of Constitutional law.
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@SH-3274
14 hours ago (edited)
Professor Twomey, I have a question about the “future authoritarian government” concerns you mentioned.
Suppose that a ruling party wanted to illegitimately classify a well-established political party (GRN, ALP, LIB, NAT, ONE, etc.) as a hate group. Assuming that their caucus and ministers were entirely on-board with this*, how many well-placed cronies would they require, and how difficult would it be to place them? By my guess they’d require five – the director of ASIO and four High Court judges – but my understanding of this is quite shaky. I certainly don’t understand how difficult it would be to place them.
*I say this because a leadership spill would undoubtedly make this difficult to pull off.
(Edited for clarity and typo correction)
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@constitutionalclarion1901
11 hours ago
I agree that it would be difficult. In the past, one would have thought it unthinkable. But the unthinkable has been happening in a number of countries around the world in recent years. So it is no longer unthinkable. In my view, at least, it is something we should be alert to and defend against. In particular, we should not pass laws that could be abused in the future.
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@SH-3274
8 hours ago
​ @constitutionalclarion1901 thanks for the insight. One follow up: with the laws as they currently exist, if the government wanted to seriously abuse them, what would the minimum required number of cronies be? Would the head of ASIO and four High Court judges be enough?

@constitutionalclarion1901
2 hours ago
Another factor is that the regulation declaring a group to be a prohibited hate group can be disallowed by either House. So an authoritarian government would need majority support in the upper House to prevent disallowance.
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@mrx6682
14 hours ago
They have a right to form a political party, thats just common sense.
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@79gengen
13 hours ago
Sure, but they won’t even give their names…. Go figure
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@lioncross1849
12 hours ago
@79gengen because if they do, they risk going to jail under these new laws. That is the issue at hand. That’s why we are having this high court case.
Shouldn’t that not be obvious to you mate?
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@richardjohnston-bell476
14 hours ago (edited)
Free speech is the foundational right that all other rights are built upon and is worth protecting. I also believe that not only is ‘hate speech’ free speech, but that free speech cannot exist without it. Free speech is not just about the right to express an opinion or an idea, free from violence or government intervention, its the right to be able to listen to those ideas and opinions. As an adult, I find it insulting that the government thinks so little of my ability to reason, that they get to decide what information is too dangerous for my poor little brain to handle.
This is why I am voting for One Nation. They are the only party that is serious about free speech
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@C0wCakes
14 hours ago
Australia isn’t the United States. There’s nothing in the constitution that guarantees free speech or makes it a foundational right. We have a very long history of common-law and case history. That includes that speech that is harmful to society and its people isn’t permitted, backed by the prior mentioned case law. That’s actually far better than a few lines in a constitution that are exceedingly diffult to change.
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@supernoveau
13 hours ago
There’s a very big difference between speech that is advocating for physical violence, and speech that some identity group doesn’t want to hear because it’s contrary to their political interest.
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@richardjohnston-bell476
12 hours ago
@C0wCakes why do people always confuse the concept of free speech and what it is in law. The US didnt invent free speech, they have just taken the concept and placed it in the constitution. If you base your argument defining free speech by what the laws say, then if we put the same rules as the US into our constitution, then your argument no longer exists, Would you then agree that ‘hate speech’ does not exist becasue the law says it doesnt?
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@79gengen
13 hours ago
Sure, have free speech, but be prepared to face the consequences that go with it.
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@FairyBreadforbreakfast
13 hours ago
@79gengen The only consequence that is reasonable is that someone disagrees with you. Any other state sanctioned punishment is not reasonable and means you don’t have free speech.
4

@richardjohnston-bell476
12 hours ago (edited)
@79gengen I assume you mean consequences that are within the law?

@79gengen
8 hours ago
​ @richardjohnston-bell476 I assume you mean free speech that is within the law.

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@nicholassteel5529
14 hours ago
🙏❤️👍

@learningmore8047
14 hours ago
This is a great video, well done. It gets me thinking about how this law and how the Indigenous peoples see their positions especially as they have taken the brunt of hatred since the arrival of the first fleet, throw that into the context of what the Uluru Statement from the Heart stated about their unceded sovereignty and mix that with Australia’s obligations under the ICCPR for example and then the intentions of Australia when it supported UNDRIP in 2009. You have really triggered ones mind with this video. Please keep up the great wotk especially with these videos.
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@AustralianGrandmasForDemocracy
14 hours ago
Thanks Anne. I think this and related issues will be hotly debated for some time to come. Time for a Bill of Rights to balance it out I think!
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@Pab_1967
14 hours ago
We have a Bill of Rights 1688, which the GovCo is breaching, it’s attached to our Commonwealth Constitution of Australia, Imperial law

@AustralianGrandmasForDemocracy
12 hours ago
@Pab_1967 According to Google that one only covers parliamentary privilege. The (4 I think) rights mentioned in the constitution are totally inadequate. There are a hodge-podge of rights mentioned in different acts of legislation in different states but I still think we need a fully fledged Federal Bill of Rights. Perhaps Anne can clarify?
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@Pab_1967
12 hours ago
​ @AustralianGrandmasForDemocracy the Commonwealth Constitution of Australia was never about rules for the people, it was designed to keep Corporations and Parliament in line. Ours are given with the blessing of Almighty God, ten commandments.

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@kipwatson
14 hours ago
They sound like a nasty, stupid party; and it sounds like a stupid, extremely dangerous law.
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@JayGuitars1
15 hours ago
Why can’t we all just get along?
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@dancarmody3789
14 hours ago
Some folks aren’t good at just minding their own business. The internet has made it worse.

@aussiegodx8629
14 hours ago
Bcus we tried that and it’s not working and never will
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@Hansel_and_Grettle
15 hours ago (edited)
I think the best way to legitimise a far right movement is to ban them.
If you believe their ideas to be horrid and wrong (which I do), then you should be able to debate and beat them with ease.
Silencing them only incentivises them to move away from democratic means of pushing their agenda, which is far more dangerous and scary imho. So far Australia has mostly avoided large scale right wing terrorism, I’d like to keep things that way.
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@seanlander9321
14 hours ago
Is it fair then to ban other groups who aren’t on the Right but which oppose Australia’s institutions, promote violence, hate, or prejudice? Because it really is a can of worms that’s being opened, and the prejudice of the Minister has too much sway in what should be the decision of a court.
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@stephenwellstriggers
13 hours ago
From a former member of said party, I agree.
5

@uasj2
14 hours ago
This is it. The prof is not supporting this group but nevertheless we don’t want repressive laws to ban them, just well-crafted laws that target only extreme groups
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@seanlander9321
14 hours ago
@uasj2 How then would a government that has funded a group that advocates hate or violence treat itself then?

@stephenwellstriggers
13 hours ago
​ @seanlander9321 you can make violence illegal, but if you make hatred illegal then everyone is a law breaker. Hate is a universal emotion and part of the human condition. You cant legislate it away.
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@RSA_Liberty
14 hours ago
The system doesnt want open debate
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@MrBlaygor
14 hours ago
In my opinion if the government really wanted to end extremism, they would have put in a clause ENCOURAGING any group targeted for designation to escape that designation by requiring them to participate in the electoral system.
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@DeGuerre
15 hours ago
I hate that we have to think about “what this would be like in the hands of ȧ madman” because that’s not hypothetical any more.
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@Teufeltusken
15 hours ago
This appears to be what happens when you make rushed laws. The intentions may be honourable, but by being sloppy you allow the targets of the legislation to make valid challenges.
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@CheekyJebus
10 hours ago
Stripping free speech and your right to political expression is never “honourable”
1

@constitutionalclarion1901
15 hours ago
Indeed. Much better to do it carefully and sensibly.
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@SethWAE
13 hours ago
​ @constitutionalclarion1901 Like Donald Trump?

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@MartyH99
15 hours ago
Will the Labor party object when these laws are used against themselves?
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@MartyH99
15 hours ago
It will interesting to hear how the government proved ‘hate’?
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@lauchlanguddy1004
12 hours ago
They dont have to. Its not a court. All comes down to one person, seems

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@zalzalahbuttsaab
15 hours ago
thank you. informative and well-researched as usual!
3

@constitutionalclarion1901
15 hours ago
You are most welcome.
2

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@paulx3733
15 hours ago
Sometimes in this ” modern world” the best motives are easily undermined by those who try to hard to appease the people who are to easily offended…
Just cause your feelings are hurt, don’t make you right.
5

@hs9067
15 hours ago (edited)
I’m continually suprised by Labors attempt at overreach. Restrictive protest, speech laws etc Should we be worried are they trying to lay the foundations for Authoritarianism?
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@constitutionalclarion1901
15 hours ago
It was supported by the Coalition too.
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@hs9067
14 hours ago (edited)
@constitutionalclarion1901 Thats worrying two mainstream partys and than One Nation who is outright oligarchical. Thank you for all the work you do!
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@AustralianGrandmasForDemocracy
14 hours ago
@constitutionalclarion1901 that isn’t at all surprising!
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@JayGuitars1
15 hours ago
And trying to eliminate legal firearm possession at the same time…gee you could draw a conclusion.
2

@constitutionalclarion1901
14 hours ago
The law did not seek to ‘eliminate’ legal firearm possession. It imposed some restrictions – eg on the number of firearms that could be owned.
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@robertwalker7924
15 hours ago
the largest ” hate group ” in Australia is the Australian population towards Australias indigenous peoples…its all very one sided
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@justheretowatchatrashfire
14 hours ago
Yep
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@AustralianGrandmasForDemocracy
14 hours ago
It’s shameful that antisemitism gets far more attention than the disrespect and violence that our First Nations people are subject to.
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@aarondemiri486
15 hours ago (edited)
Will be excited to read what the High Court decides in their judgement.
They will likely discuss Latham’s dissent in the communist party case. Fullagar and Dixon’s separate judgements still stand the test of time.
2

@lylegc01
15 hours ago
Thanks again for your vids 👍
1

@Robert-xs2mv
15 hours ago
Hate in it self is never a crime.
To state otherwise is an injustice!
And when injustice becomes law, the law becomes irrelevant!
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@RSA_Liberty
14 hours ago
Which human emotion are they going to regulate and ban next? 😂
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@constitutionalclarion1901
15 hours ago (edited)
No one has suggested that hate itself is a crime. It is the public expression of that hate in particular ways (eg inciting violence, intimidating, humiliating others, etc) that is the crime.
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@Robert-xs2mv
15 hours ago
@constitutionalclarion1901 . So being condemned and accused to be a sinner is a hate crime inciting violence? And you clearly accentuated the relevant minister has the ability to declare whether an expression of hate indeed is inciting ? Sounds like an extremely fine line.
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@worker-wf2em
10 hours ago

@constitutionalclarion1901 There are already laws against inciting violence in this country. All I see here is overreach from government equating words with violence. Terms like ‘humiliating’ is a ridiculously broad and objective feelings based standard that will be abused by those in power to target dissenters, and anyone the Israel lobby doesn’t like if we’re being honest.
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@StephenSkinner-k4w
15 hours ago
Who decides if the minister actually did have “reasonable Grounds” to prohibit a “hate group”?
Why, the minister of course!
What could possibly go wrong?
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@constitutionalclarion1901
15 hours ago
It could be challenged in a court in an administrative law challenge.
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@JOSEPHDANCE75
15 hours ago
Nothing to be ashamed about for being white. Same can be said for Black or Asian , what ever else is out their like us hybrids. For those that did bad in the pastis on them . Cannot blame so many today for the actions of some.
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@tedknight2608
15 hours ago
Quick Question: If it is a criminal offence to direct the actions of a prohibited group, then isn’t someone committing a crime by directing the group’s legal challenge against the prohibition?
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@constitutionalclarion1901
15 hours ago
Possibly. It depends on whether the law is valid, for a start. I think there are also exceptions which allow funds to be provided to lawyers for such a legal challenge – but I haven’t delved into all those provisions.
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@yubnuts
14 hours ago
This is similar to the question that arose in Deripaska (2026) where the sanctioned person (Deripaska) argued that the sanction laws were invalid because to engage legal representation to contest the listing would have itself been a breach of the sanction laws. The High Court saved the sanction laws by reading them down so that they would not extend to prohibiting a person from engaging legal advice for the purpose of contesting the listing.

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@michellefranklin3182
15 hours ago
Thanks for this.
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@constitutionalclarion1901
15 hours ago
Much appreciated.
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@DS91284
15 hours ago
Insecurities are so vague and should never be handled by double digits. 😂😂😂
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@Know_It_All
16 hours ago
Thanks
3

@constitutionalclarion1901
15 hours ago
You’re welcome.

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Joel Davis – WWII Revisionism Re-enters the Mainstream – Sep 6, 2024 – Transcript