Australia is once again considering legislation to ban organisations, with the federal Labor government proposing new hate crime laws in the wake of the Bondi terror attack. This move, however, echoes a contentious and legally fraught history of attempting to outlaw political groups, a history marked by high court rejections and significant civil liberty concerns.
A Century of Controversial Bans
The nation's first major foray into banning organisations came during the First World War with the Unlawful Associations Act of 1916. This law targeted the Industrial Workers of the World, making membership a criminal offence. The consequences were severe: 103 members were imprisoned, and others faced deportation, with some even being dumped in Chile despite having no connection to the country.
The trend continued during the Second World War. In 1940, the Menzies government used defence regulations to ban "subversive associations," including the Communist Party. This gave the governor general sweeping power to dissolve groups deemed prejudicial to the war effort. However, the ban was short-lived for the Communists, lifted in 1942 after the Soviet Union joined the Allies.
Another banned group, the Adelaide Company of Jehovah's Witnesses, successfully challenged these regulations in the High Court. Justice Starke famously condemned them as "arbitrary, capricious and oppressive," criticising the power to dissolve bodies based solely on the executive government's 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 sought to outlaw the Australian Communist Party, dissolve it, and seize its property. 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 emphasised that only a "supreme emergency of war itself" could justify such an intrusion into civil liberties, a threshold not met even by Australia's involvement in the Korean War.
New Laws, Old Concerns
Now, decades later, Australia is not at war, yet the government is returning to the practice of banning organisations. The proposed laws aim to protect the community from harm by prohibiting groups that engage in or advocate hate crimes. Notably, the legislation extends to conduct that was not a crime when it was committed.
Under the new proposal, the minister need not wait for a conviction to be satisfied an organisation has engaged in hate crime conduct. There is also no requirement for the minister to observe procedural fairness. A group can be declared a prohibited hate group by the governor general via regulation, based on ministerial advice.
This time, the legal justification shifts from the defence power to relying on international treaty obligations concerning racial hatred. It remains to be seen whether the contemporary High Court would view these laws with the same robust scepticism it showed in the past.
Constitutional expert Professor Anne Twomey argues this history suggests such laws are "neither wise nor necessary." The precedent indicates that broad powers to ban organisations are ripe for future abuse and warrant extreme caution. As parliament debates the new hate speech legislation, the ghosts of the Industrial Workers of the World and the Communist Party serve as powerful reminders of the risks involved.
