THE Free Speech Union of Australia (FSU) has applied to intervene in a pending High Court matter concerning the Albanese government’s apparent plans to ban Thomas Sewell’s White Australia Party under new laws to prosecute hate speech and extremist organisations.
The FSU has filed a Form 27C Intervener’s submission to assist in the case in which the White Australia Party and Sewell are named as plaintiffs, and the Commonwealth of Australia and Attorney General of the Commonwealth are named as defendants.
The High Court case could determine how much constitutional protection political organisations receive in Australia.
The FSU is asking for public support to help pay the substantial legal fees in a High Court case. Donations can be made at this link.
“The legislation passed earlier this year has next to no safeguards in it,” the FSU states in a media backgrounder.
“A party can be banned by a minister with no natural justice. If today’s Government can prohibit one political organisation then who might be banned next? Perhaps it would be One Nation or a militant environmental movement? Or a religious organisation the government says is ‘extremist’?
“This could apply to any political movement that falls sufficiently out of favour.
“Whilst the Albanese Government is using the White Australia Party as cover for these laws, the problem is that can be applied a lot more widely.
“It is not just us who is seriously concerned. For example, constitutional law expert Professor Anne Twomey has highlighted the inherent risks of ignoring the implied freedom when making well intentioned changes.
“That’s why the Free Speech Union is asking the High Court to once again prevent undemocratic power grabs on this nature.
“We hope to expand the implied freedom of political communication (and thus free speech) through our intervention in this case. Please support this important legal challenge and help protect your freedoms.”
The FSU has also sought to intervene as an amicus curiae or intervener in other high-profile appellate litigation, such as Giggle for Girls Pty Ltd v Roxanne Tickle in the Federal Court system.
The FSU has also backed individual cases in administrative tribunals, such as supporting an appellant against the eSafety Commissioner, rather than filing direct constitutional origin suits in the High Court itself.
According to the Australian law website LegalClarity, when someone challenges a law as violating the Constitution’s implied freedom of political communication, the High Court applies a structured test that has evolved over several decades.
The current formulation was refined through McCloy v NSW (2015) and confirmed in Brown v Tasmania (2017), and involves three stages:
Is the restriction proportionate? Even with a legitimate purpose, the law must be suitable for achieving that purpose, necessary in the sense that no less restrictive alternative is reasonably available, and balanced so the importance of the purpose outweighs the cost to political communication.
Does the law burden political communication? The court asks whether the law has a real, practical effect of limiting the content, timing, location, or manner of political speech. If no burden exists, the challenge fails at the threshold.
Is the law’s purpose legitimate? The purpose must be compatible with representative government. Protecting public safety, preserving fair trials, and preventing fraud all qualify. Suppressing criticism of the government does not.
