Australia’s history of banning political groups gives pause for thought as to whether we really want to go down this route again.
During the first world war, the Unlawful Associations Act 1916 was enacted and used to ban a group called Industrial Workers of the World. Membership was made a criminal offence. Members could also be deported if they were not British subjects born in Australia.
One hundred and three members were imprisoned, and others were deported. Some were put on a ship and dumped in Chile, even though they had no connection with Chile.
While the validity of the legislation was not challenged, it probably would not have survived constitutional scrutiny.
In 1940, the Menzies government used defence regulations to ban “subversive associations”, including the Communist party in Australia. The governor general was empowered to declare a body unlawful if it was “in his opinion, prejudicial to the defence of the commonwealth or the efficient prosecution of the war”.
Once that declaration was made, the body was dissolved and its property could be confiscated. It then became unlawful to publish any doctrines or principles advocated by that body.
The ban on the Communist party was lifted in 1942 after the Soviet Union joined the war on the side of the allies. But another banned body – the Adelaide Company of Jehovah’s Witnesses – challenged the regulations in the high court and won.
Justice Starke described the regulations as “arbitrary, capricious and oppressive” because they put bodies “out of existence and divested [them] of their rights and their property on the mere declaration of the executive government”.
In 1950, the Menzies government had another go, this time enacting the Communist Party Dissolution Act. It declared the Australian Communist party to be an unlawful association and dissolved it, seizing its property.
The governor general, acting on ministerial advice, could also declare similar organisations to be unlawful and declare persons to be communists and “likely to engage in acts prejudicial to the security of the commonwealth or the execution of its laws”. If a person was declared a communist, he or she could not be employed as a commonwealth public servant or hold any office in a trade union.
The high court struck down the validity of the act; it was not supported by the defence power. Merely stating in the preamble to the act that communists were a threat to the defence of the nation was not enough to trigger the application of the defence power. Nor could the governor general’s assessment of a body do so either.
Justice Dixon also raised concerns about the impact of the act on civil liberties. He thought that “only the supreme emergency of war itself” could extend the defence power in such a way that it affected “the status, property and civil rights” of people who were named or otherwise identifiable under the Act. Not even Australia’s participation in the Korean war was enough to support such a ban.
We are now returning to banning organisations, even though Australia is not at war. The purpose is to “protect the Australian community against social, economic, psychological and physical harm” by prohibiting organisations that engage in or advocate conduct constituting a hate crime. This extends to conduct that was not a crime when committed.
Under the proposed laws, no one needs to have been convicted of a hate crime for the minister to be satisfied that an organisation has engaged in conduct constituting a hate crime and there is no requirement for the minister to observe procedural fairness. The governor general declares a group to be a prohibited hate group by making a regulation, upon the minister’s advice.
This time there is no reliance on the defence power; instead, the bill relies on treaty obligations directed at racial hatred.
Whether the high court would today take as robust a view as it has in the past to laws banning organisations and whether it would uphold its validity remains to be seen. But history suggests that such laws have been neither wise nor necessary, and that one should think very carefully before putting in place laws which have the potential to be abused in the future.
Anne Twomey is a Professor emerita in constitutional law at the University of Sydney
