Lawyers for an outlawed neo-Nazi political party have argued anti-hate laws passed after the Bondi terror attack rely on the opinion of a politician and are “authoritarian in nature”.
The White Australia party, formerly known as the National Socialist Network (NSN), was designated as an illegal hate group in May after the Australian Security and Intelligence Organisation passed on its recommendation to the home affairs minister, Tony Burke.
The listing means that activities including supporting, funding, training, recruiting and joining the group constitute a criminal offence with a maximum penalty of 15 years in prison.
The far-right nationalist party is challenging the ban at the high court over two days this week, with its lawyers arguing the law breaches the implied freedom of political communication and that handing the decision to Burke breaches the separation of powers.
Sign up for the Breaking News Australia emailLawyers also argued the commonwealth does not have the power to ban political parties, citing a major cold war-era high court ruling in 1951, which overturned a ban on the Communist party of Australia.
If successful, the ruling could wind back the laws that have also banned the Islamist group Hizb ut-Tahrir.
On Tuesday, the group’s barristers, Peter King and Shahed Sharify, argued a total ban on the party was akin to using a “sledgehammer on a nut”.
The arguments centre on proving part 5.3B of the criminal code – which allows the federal police minister to recommend to the attorney general that a group is listed as a prohibited hate group – is invalid.
Sharify argued the law’s breach of implied freedom of political communication was “authoritarian in nature” and suggested it could be used to ban any political party where its members had threatened or engaged in a hate crime with the assistance of the organisation.
The barrister said the banning of hate groups was determined by a politician, based on an opinion with no judicial fairness to appeal that decision.
Sharify said the law’s purposes would be better served by handing that decision to a judge rather than a “busy minister who flicks through a brief and decides in two hours”.
Acting for the government, Brendan Lim, denied the laws could be used for the “illegitimate purpose of quelling political competition”.
“It can’t happen,” he said.
Groups can be listed if it is considered “reasonably necessary to protect the Australian community or part of the Australian community against social, psychological, physical or economic harm”.
Under the rules, Burke must receive advice from the head of Asio recommending that an organisation be considered for listing. The home affairs minister must then receive written agreement from the attorney general and brief the opposition leader.
Unlike the terrorist group listing, a listed hate group cannot make a de-listing application.
The government is also expected to defend the anti-hate laws by arguing the party is not a political party but an arm of White Australia, itself a rebranded version of NSN.
“Forming a political party was a calculated attempt to secure legal protection for members engaging in openly racist and anti-Semitic speech,” the commonwealth said in written submissions.
Members of the White Australia party sat in the front of the courtroom’s public benches, including its leader, Tom Sewell.
The 33-year-old was sentenced in June to a community corrections order – which includes 200 hours of community work – for behaving in an offensive manner in public.
A Melbourne magistrate had found the neo-Nazi leader emulated “Nazi thugs of 1930s Berlin” when he used “appalling racial slurs” during a stunt outside a Chinese consulate.
