Australia is once again considering legislation to outlaw organisations, with the Labor government proposing new hate crime laws in the wake of the Bondi terror attack. This move, however, forces a reckoning with the nation's contentious history of banning political groups, a history legal scholars describe as neither wise nor necessary.
A Century of Controversial Bans
The precedent for prohibiting organisations in Australia stretches back over a century. During the First World War, the Unlawful Associations Act of 1916 was used to ban the Industrial Workers of the World. Membership became a criminal offence, with 103 members imprisoned. Others, who were not British subjects born in Australia, faced deportation, including some who were reportedly dumped in Chile despite having no connection to the country.
This pattern continued during the Second World War. In 1940, the Menzies government used defence regulations to outlaw 'subversive associations', including the Communist Party. The Governor-General was empowered to dissolve any body deemed prejudicial to the war effort and confiscate its property. This ban was lifted in 1942 after the Soviet Union joined the Allies.
However, another banned group, the Adelaide Company of Jehovah's Witnesses, successfully challenged the regulations in the High Court. Justice Starke famously condemned them as 'arbitrary, capricious and oppressive' for allowing the executive government to dissolve organisations by mere declaration.
The Communist Party Dissolution Act and High Court Rebuke
The most significant legal battle came in 1950 with the Communist Party Dissolution Act. The Menzies government again moved to declare the Australian Communist Party unlawful, dissolve it, and seize its assets. The Act also allowed the Governor-General to declare individuals as communists, barring them from Commonwealth public service or trade union office.
The High Court struck down the Act. It ruled that the government's defence power could not support such a ban, merely stating that communists were a threat was insufficient. Justice Dixon expressed profound concern for civil liberties, arguing that only the 'supreme emergency of war itself' could justify laws affecting the 'status, property and civil rights' of named individuals. Notably, he stated that even Australia's involvement in the Korean War did not meet this threshold.
New Laws, Old Concerns
Now, in a time of peace, the government is returning to the concept of banning organisations. The proposed laws aim to protect the community from harm by prohibiting groups that engage in or advocate hate crimes, including conduct that was not criminal when it occurred.
Critically, the legislation does not require a conviction for a hate crime for the minister to act, nor does it mandate procedural fairness. A group can be declared a prohibited hate group via regulation by the Governor-General on the minister's advice. This time, the legal justification shifts from the defence power to relying on international treaty obligations concerning racial hatred.
Constitutional law expert Professor Anne Twomey warns that history suggests such laws are prone to abuse. The question remains whether the modern High Court would uphold them or maintain its historically robust defence of civil liberties against executive overreach.
As parliament debates these new powers, the nation's legal history serves as a stark reminder: laws designed to ban organisations carry a heavy legacy and demand the most careful scrutiny.
