Neo-Nazi group challenges hate ban by arguing law ‘operates as a doorway to tyranny’

A neo-Nazi group, which is aiming to start a political party and was last week banned as a hate group, has launched legal action against the commonwealth that will test the constitutional validity of the prohibition.

The federal government on Friday banned neo-Nazi group the National Socialist Network (NSN), also known as White Australia, by listing it as a prohibited hate group under legislation passed in the wake of December’s Bondi beach terror attack.

The group had declared it would disband in the hours before the legislation was introduced at a special sitting of parliament in January.

But the minster for home affairs, Tony Burke, said on Friday that the group had instead “phoenixed” and its members had continued organising.

Burke said the Australian Security Intelligence Organisation (Asio) had recommended in April that the government consider listing White Australia. That same month, the group lodged an application with the Australian Electoral Commission to register as a political party.

The solicitor Matthew Hopkins, who has previously represented NSN leader Thomas Sewell, filed a legal challenge on Friday in the high court of Australia against the commonwealth over the law used to enforce the ban. Hopkins was acting on behalf of Sewell and the group’s planned political party, the White Australia Party.

Court documents state that on 13 January, the NSN and the Australian European Movement, “some of whose former members assisted in the formation” of the White Australia Party, “disbanded voluntarily”. But the documents state that the party did not dissolve and note Sewell is the president.

The neo-Nazi group is arguing the law used to ban it is invalid on the grounds the legislation “burdens the freedom of governmental and political communication” and violates constitution by conferring punitive power to the government without judicial review.

The group argues the commonwealth lacks the power to proscribe a political party and doing so contravenes the Australian Communist Party v Commonwealth high court decision of 1951, which found a Menzies government attempt to outlaw the communist party was beyond the parliament’s power.

“The challenged provisions, in short, operates as a doorway to tyranny, by empowering the executive to name, suppress and criminalise political opponents and opposing views,” Sewell and the White Australia Party state in the court documents.

The group has submitted separately to the constitutional challenge an application requesting that the court issue an order restraining the commonwealth from using the law until a determination by the court.

The listing of NSN and White Australia as a hate group means that NSN and White Australia activities, including supporting, funding, training, recruiting and joining the group, constitute a criminal offence with a maximum penalty of 15 years in prison.

The group is the second to be listed by the government after the Islamist group Hizb ut-Tahrir.

Burke and the Asio head, Mike Burgess, have said the groups previously operated in a “lawful but awful” manner, skirting the higher threshold to be listed as a terror organisation.

Burke said on Friday when announcing the ban of the NSN and White Australia: “None of this will stop bigoted people from having horrific ideologies, but it does prevent this group from organising, from meeting, and prevents some of the sorts of horrific bigoted rallies that we’ve seen around our country.”