Australia once refused to ban communists. Now it uses communist legal doctrine to ban nationalists.
The new "hate group" law is not about banning violent organisations.1 Violence, terrorism and incitement are already covered by Australia's anti-terrorism laws.2
What the Combatting Antisemitism, Hate and Extremism (Criminal and Migration Laws) Act 2026 actually creates is a power for the Commonwealth executive to declare any organisation a "prohibited hate group" and then criminalise directing it, recruiting for it, funding it, supporting it or simply belonging to it, with seven to fifteen years in prison. Importantly this power can be used against political parties.3
The declaration is made on the advice of a single minister. The concept of "hate" is deliberately nebulous. There is no judicial review. Procedural fairness is expressly removed. The group is simply deemed "hateful" by arbitrary feelings of fear and then banned with no recourse or appeal.
No other Western democracy has a law like this on its books.
How is this possible under the Australian Constitution? The entire point of a constitution is to protect the integrity of democracy itself, to stop the government from banning its political opposition, to prevent exactly this kind of arbitrary power over who may contest elections and who may not.
You would think this would be unconstitutional, but the Commonwealth lawyers defending the new law in the High Court challenge brought by the now-banned White Australia Party are relying on the external affairs power, the Commonwealth's power to make laws implementing international treaties. They argue this allows them to rely on Article 4 of the International Convention on the Elimination of All Forms of Racial Discrimination, which requires states to prohibit certain organisations. Importantly, Article 4 was pushed by the Soviet Union and its communist allies during the Convention's drafting in the 1960s.
The Australian government is therefore relying on a Bolshevik drafted globalist treaty to claim the legal right to abolish democracy.
Which raises the obvious question: how did Australia ever ratify a UN covenant containing provisions so fundamentally at odds with the liberal-democratic protections we are supposed to have?
Well, this is the outcome of a multi-generational communist project: the systematic effort to criminalise nationalism and dissolve national identity throughout the West.
But that still leaves the larger question.
How the h*ll did we get to this point?
Stalin's constitutionThe Bolsheviks were the first governing power of the modern era to write the suppression of "national enmity" into a systematic criminal code. The RSFSR Criminal Code of 1922 penalised agitation and propaganda arousing national enmity or dissension, its successor, the 1926 Code, carried the provision forward as Article 59-7, under the chapter dealing with especially dangerous crimes against the order of administration, punishing "propaganda or agitation directed towards arousing national or religious enmity or discord," with sharply escalated penalties, up to and including death, where the offence occurred in wartime or amid mass disturbances. From the earliest years of the Soviet state, in other words, speech about nationality was not a civil-society problem to be argued out, but a category of state crime sometimes punishable by death.
To understand why, it is necessary to understand something about communism that conservatives and libertarians have largely obscured. If you ask the average conservative what communism is, he will most likely start discussing government ownership, five-year plans, bread queues etc.
Communism, from this point of view, is essentially capitalism with the economic settings reversed. The government "does and owns everything". This is why so much conservative analysis eventually degenerates into horseshoe theory: fascists liked government intervention and communists liked government intervention, therefore fascism and communism were basically versions of the same thing.
But that completely misses the ideological conflict which defined twentieth-century Europe. Communism was not just some economic theory about who should own what. It was an internationalist theory about who you are.
Communism is an ideology designed to liquidate nations. Literally.
Marxism insisted that the fundamental political division of mankind was class. The worker was not ultimately supposed to understand himself principally as English, German, Italian, French or Russian. He belonged to the proletariat. His historical interests were shared with workers beyond the borders of his own country, while his supposed national solidarity with his own bourgeoisie concealed the class relationship upon which capitalism depended. Hence the language that runs through the entire communist tradition: Workers of the world, unite; The proletariat has no fatherland; No war but class war. You're not Italian, you're not German, you're the proletariat, and all you have to lose is your chains.The political logic here is blatantly obvious. Nationality competes with class consciousness, patriotism competes with proletarian internationalism. The nation tells a German worker that he shares something profound with another German who happens to own a factory. Marxism tells him that this solidarity is false and his real political brother is the French, Russian or Italian worker standing on the other side of the border.
That is why the nation became one of the great obstacles confronting revolutionary socialism. The theory said workers possessed common international class interests. Yet, history repeatedly demonstrated that workers continued to behave like members of nations.
In 1914, the workers of Europe did not unite against their governments and refuse the coming war. They rallied overwhelmingly to their respective countries. Socialist parties fractured along national lines. Men who Marxists expected to understand themselves as an international proletariat marched into battle as Germans, Frenchmen, Russians, Austrians and Britons. And the same problem returned after the Bolshevik Revolution.
That is why the great twentieth-century conflict between communism and nationalism was not accidental. It was ideological. Communism was internationalist not in the banal sense that communists in different countries cooperated with one another, but in its conception of history itself. The nation was something history would ultimately transcend. Lenin said this openly: socialism aimed not simply to bring nations closer together, but eventually to "merge them." Elsewhere he described the centralised state as a historical step towards the future "socialist unity of the whole world."4
Stalin, grasping this principle, forged civic nationalism as the indispensable stepping-stone toward that communist universalism. Inside the borders of the revolutionary state the old nationalities were to be liquidated into a single Soviet identity: you are not Ukrainian, you are not Russian, you are not Jewish, you are not Georgian, you are a Soviet patriot, loyal only to the revolution. That state, once purged of national loyalties, would then project its universalist ideology outward, seeking global hegemony by liquidating, in turn, every nation that still dared to resist it.
Fascism emerged partly from currents on the revolutionary left that rejected Marxist internationalism while retaining a revolutionary hostility towards liberal capitalism. Its decisive heresy was to place nation above class. The fascist answer to Marx was, in effect: We are not just workers. We are Italians.
That distinction explains far more than the libertarian obsession with whether Mussolini had enough government agencies. Communists understood fascism as an existential enemy because fascism attempted to capture precisely the people Marxism claimed for international revolution and bind them instead to the nation. That is why anti-fascism occupies such a central place in communist politics. And it explains something that otherwise appears strange in contemporary politics.
Communism was never primarily about big government. It was about getting rid of nations. That is why communists are primarily anti-fascist rather than anti-liberal: liberalism is just a bridge, nationalism is the resistance. That is why every anti-immigration rally draws communists who want to shut it down. That is why Antifa exists. The framework only makes sense once you understand that the ideology is globalist, anti-nationalist, and, when it comes to the West, fundamentally anti-white.
Why are communist organisations almost invariably found on the opposite side of nationalist demonstrations? Why does Antifa define nationalism and fascism as its central enemies rather than making its principal political project the destruction of liberal parties? Why do anti-immigration demonstrations so reliably produce communist counter-demonstrations? Why does the revolutionary left react to the assertion of national identity not as just another policy disagreement but as something morally illegitimate in itself?
Because underneath all the economic language is a much older and more profound conflict: nation or internationalism.
That context makes the Soviet obsession with "national enmity", "bourgeois nationalism" and eventually "fascism" considerably more intelligible.
It was not just a concern with prejudice in the abstract, but with forms of national consciousness that could rival the political loyalties demanded by the communist state. That logic was eventually written directly into Soviet constitutional law. Article 123 of the 1936 Constitution of the USSR (the Stalin Constitution), drafted under the supervision of Nikolai Bukharin and Karl Radek, both of whom Stalin subsequently had murdered, declared the equality of Soviet citizens' rights irrespective of nationality or race to be "an indefeasible law," and continued: any advocacy of racial or national exclusiveness, or of hatred and contempt, is punishable by law.56
Think about the specific wording of that clause, "any advocacy of racial or national exclusiveness, or of hatred and contempt, is punishable by law." It is the first appearance in any constitution on earth of the proposition that advocacy, not violence, not incitement to imminent lawlessness, but the advocacy of a disfavoured idea about nation and race is a criminal matter. I also want you to note the strategic marketing of it. The clause does not present itself as censorship, but rather as an appeal to equality, protection and harmony among peoples. This same vocabulary is instantly recognisable to Western readers, especially Australian readers, as it is used constantly to manufacture consent for modern police-state multiculturalism.
This historical setting supplies the necessary contempt. Article 123 was promulgated in December 1936, as the Great Terror was gathering. Over the following two years the NKVD's "national operations" arrested and shot Soviet citizens by the tens of thousands on the basis of their Polish, German, Latvian and other national origins, while "bourgeois nationalism" served as a standing capital charge against Ukrainian, Georgian and Central Asian intellectuals.78 Historian Terry Martin writing in The Journal of Modern History in his paper 'The Origins of Soviet Ethnic Cleansing', calculates that 335,513 people were convicted in the NKVD national operations and 247,157 were executed, meaning roughly 74 per cent of those convicted in those operations were killed. The Polish operation alone resulted in roughly 111,000 executions.910 The state that constitutionally guaranteed protection from national hatred was simultaneously the century's most prolific practitioner of it.
That contradiction matters because it reveals the political function of these categories. The Soviet state reserved to itself the authority to determine which manifestations of nationality were legitimate and which were "bourgeois nationalism", "national hatred", "chauvinism" or eventually "fascism". National identity was permissible when it could be subordinated to the revolutionary state. It became criminal when it threatened to become an independent source of political loyalty.
I am obviously not trying to claim that the drafters of the Australian Criminal Code sat with a Russian textbook open beside them, and this article will not claim that either. The more crucial and salient point is that the genealogy runs through a transmitted principle: the state defines an ideological category, attaches criminal consequences to expression within it, and then makes the crucial escalation from expression to organised association.
This principle needed a vehicle to travel from Moscow into the international legal architecture eventually adopted by liberal democracies.
That vehicle was the United Nations.
The first battleThe fight began immediately in the drafting of the Universal Declaration of Human Rights in 1947 and 1948. The Soviet delegation, represented during the crucial 1948 debates by Alexei Pavlov, pressed repeatedly for the free-expression article to carry an exception compelling states to outlaw "fascist" propaganda and the advocacy of national and racial hatred.11
The word "fascist" is crucial here.
For the communists, anti-fascism was never just some retrospective condemnation of Hitler. Fascism had been communism's great ideological rival because it mobilised mass politics around nation rather than international class. The elasticity of the term therefore mattered enormously. If "fascism" meant only a historically specific political regime, the prohibition was narrow. If it could expand to encompass nationalist, anti-communist or otherwise politically hostile movements, it became a potentially unlimited category of political suppression.
Pavlov defined fascism during the debates as the "bloody dictatorship of the most reactionary section of capitalism and monopolies," while Western delegates warned that the term was being expanded to encompass virtually any idea outside communist orthodoxy.12
The Western democracies understood precisely what was being attempted. When the argument resurfaced during the drafting of the binding human-rights covenant in 1950, Eleanor Roosevelt, still chair of the UN Commission on Human Rights, described proposals prohibiting incitement to national and religious hatred as "extremely dangerous." She warned the Commission against including provisions "likely to be exploited by totalitarian States for the purpose of rendering the other articles null and void," arguing that vague concepts such as national or religious hostility could allow governments to suppress criticism by simply redescribing it as incitement.13
Furthermore, Roosevelt was not speaking hypothetically. She pointed to the communist governments of Hungary, Bulgaria and Romania, where the supposed "suppression of fascism" had already provided a legal pretext for disregarding other political freedoms.14
The Soviet proposals were defeated. A 1947 Soviet amendment that would have criminalised advocacy of national, racial or religious hostility was rejected by ten votes to four, with three abstentions, and subsequent Soviet attempts to insert stronger anti-fascist provisions into the Declaration were also voted down.15 Article 19 therefore emerged without any specific exception for "hate speech" or fascist propaganda: "Everyone has the right to freedom of opinion and expression."16
The Soviet Union, having failed to insert the poison, abstained on the Declaration itself, alongside the Byelorussian and Ukrainian SSRs, Czechoslovakia, Poland and Yugoslavia.17
Australia was not a bystander to this. Colonel William Roy Hodgson represented Australia on the UN Commission on Human Rights and sat on the original committee charged with drafting the Universal Declaration.18 When the Soviet amendments reached the General Assembly in 1948, Australia again came down firmly on the side of freedom of expression. Australian delegate Alan Watt warned that one Soviet proposal would give governments the power to establish "extensive censorship", and argued that a right as important as freedom of expression should be stated with "the maximum of brevity and simplicity" rather than weakened by an enumeration of limitations and exceptions.19 In 1948, that was the Australian position. Hold the thought
When the United Nations changed sidesThe Soviets lost the battle of 1948 but proceeded to win the war, because between 1948 and the mid-1960s the arithmetic of the General Assembly was transformed. There were only 58 UN members when the Universal Declaration was adopted in 1948; by 1965 there were 117.20
Decolonisation had brought dozens of newly independent Asian and African states into the General Assembly, countries for whom colonialism and racial hierarchy were immediate political questions, and for whom apartheid South Africa was the standing enemy. Historian Roland Burke describes the resulting Afro-Asian bloc as possessing both numerical superiority and highly effective diplomatic organisation, giving the newly independent states enormous influence over the UN's human-rights agenda.21
And here an important ideological convergence occurred.
The Soviet bloc was internationalist, anti-Western and committed to suppressing what it regarded as racist and fascist political organisation. The new post-colonial states were intensely hostile to European colonialism and apartheid and wanted international law armed with much stronger powers against racial discrimination. So on this question their interests aligned.
There was also a revealing asymmetry inside communist thinking itself. Marxists condemned nationalism when it bound European workers to existing bourgeois nation-states, but communist movements were perfectly capable of supporting nationalism when it took an anti-colonial form and weakened Western imperial power. Nationalism could therefore be reactionary in Europe and revolutionary in Algeria, Vietnam or Africa. The distinction was not nationalism in the abstract so much as the political direction in which nationalism pointed.
So, Soviet diplomacy grasped the opportunity with both hands: on questions of race and nation, the communist bloc could now assemble majorities against the West more or less at will.
During the drafting of the human-rights instruments of the 1960s, the Soviet and Polish representatives again pressed for states to prohibit racial propaganda and outlaw racist and fascist organisations.22 The doctrine that had failed to enter the Universal Declaration could now return backed by an entirely different General Assembly.
The first great prize was Article 20(2) of the International Covenant on Civil and Political Rights:
"Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law."23
Article 19 protects freedom of expression; Article 20 imposes an affirmative obligation to prohibit a specified category of it. And the prohibition extended beyond incitement to violence to the considerably less determinate concepts of "discrimination" and "hostility", terms without stable boundaries in any legal system on earth.24
When the provision, then numbered draft Article 26, came to the vote in the Third Committee in 1961, the division was not between the virtuous and the indifferent. It was between the two conceptions of freedom described above. Australia warned that many of its elements "defied strict legal definition." Its delegate observed that "hostility" could mean not just enmity but unfriendliness, antagonism or even contrariness, so that the prohibition might conceivably cover "a mere difference of view."25
The division between 'The West and the rest' was indelible. The and a large group of Asian, African and other developing states carried paragraph 2 by 50 votes to 18, with 15 abstentions. Australia abstained on paragraph 2 and then voted against the article as a whole, which nevertheless passed 52 votes to 19, with 12 abstentions.26
Most Western democracies, together with Japan, either opposed the provision or declined to support it, on exactly the ground Roosevelt had stated a decade earlier. The principle the Soviet state had long embodied in its own law, that certain forms of national or racial advocacy were proper objects of legal prohibition, had been laundered into the language of human rights over the recorded objection of virtually every state with a functioning free press.
And the process was not finished.
The treaty that targeted organisationsArticle 20 criminalised advocacy, but the next instrument criminalised association, and here the Soviet fingerprints are of documentary record.
The immediate catalyst was the so-called "swastika epidemic" of 1959-60, a wave of vandalism that began with the desecration of Cologne's Roonstrasse Synagogue and spread far beyond West Germany.27 The episode helped propel racial and religious intolerance onto the United Nations agenda. Over the following years, newly independent African states, with apartheid and colonial rule squarely before them, pressed for the adoption of a binding convention against racial discrimination.28
The result was the International Convention on the Elimination of All Forms of Racial Discrimination, adopted by the General Assembly on 21 December 1965.29 Article 4 proved the most controversial provision in the drafting process.30 When the Sub-Commission began its work in 1964, sharply opposed approaches were placed before it.
Morris Abram, the American expert, proposed that states punish incitement to racial hatred and discrimination "resulting in or likely to cause acts of violence." (a more classically liberal threshold).31 Boris Ivanov of the Soviet Union and Wojciech Ketrzynski of Poland, (Poland itself a communist client state of the USSR, having been conquered in the Second World War) proposed something considerably broader: states were to "prohibit and disband racist, fascist and any other organisations practising or inciting to racial discrimination." The old argument had returned almost intact: whether international law should stop at violence, or empower the state to suppress ideas and organisations themselves.32
Prohibit and disband organisations. Not just punish violent acts, but outlaw associations themselves. This was the Soviet draft, tabled by the Soviet delegation, reflecting forty years of Soviet domestic practice, and in substance it prevailed.33
The Nordic states salvaged a fig leaf, by attempting to place a liberal brake on the provision, insisting that its implementation must have "due regard" to other fundamental rights. France separately pressed for an express reference to the principles of the Universal Declaration, and a Nigerian compromise ultimately combined those protections into the introductory clause.34 But the operative prohibition survived. Article 4(b), as adopted, obliges states parties to "declare illegal and prohibit organisations, and also organised and all other propaganda activities, which promote and incite racial discrimination," and to recognise participation in them as an offence punishable by law.35
So, there it is: the membership offence, in a United Nations treaty, in 1965, from a Soviet-Polish draft. Participation itself "an offence punishable by law." The provision goes beyond even Article 20 of the Covenant, it requires criminalisation, it dispenses with any incitement threshold for the organisational limb, and it makes the individual's affiliation, rather than any act of his, the unit of criminal liability.
Western delegations identified this danger during the negotiations. Britain declared that it defended the right even of fascist and communist organisations to exist and make their views known, provided they did not incite racial violence, Lady Gaitskell told the Third Committee that Britain "could never agree" to punishing somebody just for paying a subscription toward membership of a fascist organisation, and that however odious an organisation's views, Britain could not agree to banning it.36
The United States likewise sought an express safeguard for freedom of expression and association, and supported the final compromise only on the understanding that Article 4 imposed no obligation to impair those freedoms.37 When the United States eventually ratified ICERD in 1994, it converted that understanding into a formal reservation, refusing to accept any obligation under Article 4 that would restrict constitutionally protected freedom of speech, expression or association.38 That reservation remains recorded by the United Nations today.
Obviously, Article 4 was not carried by Soviet votes alone. It was also carried because African and Asian states, who had deep racial grievances, wanted the strongest possible instrument, and the Soviet bloc … was delighted to supply the legal technology and harvest the propaganda victory.39
The Soviet system did not survive in the West in the form of collective farms or Five-Year Plans. But some of its assumptions about permissible politics travelled very well. The idea that certain political doctrines are too dangerous to compete freely, that the state may classify organisations ideologically, that membership in those organisations can itself be criminalised and that all of this can be described as the defence of equality and democracy against "fascism" and "hate."
Australia's long surrenderAustralia's path from resistance to this communist policy took around fifty years.
Australia signed ICERD on 13 October 1966 and ratified it on 30 September 1975, the same year the Whitlam government enacted the Racial Discrimination Act 1975.40 The Act expressly declared that one of its purposes was to give effect to the Convention, and in Koowarta v Bjelke-Petersen (1982) a 4-3 majority of the High Court upheld the relevant provisions as a valid exercise of the Commonwealth's external affairs power in implementation of Australia's international obligations.41 But Australia did not accept the Convention without qualification. Upon ratification it entered a declaration concerning Article 4(a), stating that Australia was "not at present in a position specifically to treat as offences all the matters covered by article 4(a)", and that existing criminal law would apply until Parliament considered further legislation.42
When the Fraser government ratified the ICCPR on 13 August 1980, Australia went further. It entered a formal reservation to Article 20, declaring that Articles 19, 21 and 22, freedom of expression, assembly and association, were to be read consistently with Article 20, and that, because Australian governments had already legislated on matters of practical concern to public order, "the right is reserved not to introduce any further legislative provision on these matters."43 As late as 1980, under a Liberal government, Australia was expressly refusing to accept Article 20 as an open-ended instruction to legislate further against speech and association.44
Neither qualification was temporary. Australia's declaration on Article 4(a) of ICERD and its reservation to Article 20 of the ICCPR have never been withdrawn; both remain on the books at the United Nations today.45 Yet over the following four decades Australian legislatures progressively enacted much of what those instruments had initially declined to promise. New South Wales introduced racial-vilification provisions in 1989, making racial vilification unlawful and creating a criminal offence for its more serious, violence-related form.46 The original Bill contained criminal offences as well as civil prohibitions, but the Senate deleted the criminal provisions before passage, leaving what became section 18C and its associated civil regime.47 Parliament's own later review records that the 1995 legislation was informed by Australia's obligations under Article 4 of ICERD and Article 20 of the ICCPR.48
This progression continued. New South Wales replaced its earlier serious-vilification offence with section 93Z of the Crimes Act 1900 in 2018, criminalising public threats or incitement of violence on specified grounds including race and religion. 49In December 2023 the Commonwealth enacted the Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols and Other Measures) Act 2023, prohibiting specified Nazi and terrorist symbols and the Nazi salute; the legislation itself expressly states that relevant parts of the prohibition are intended to give further effect to Article 4 of ICERD.50 Then came the Criminal Code Amendment (Hate Crimes) Act 2025, which expanded federal offences for urging and threatening force or violence and, after intense Coalition pressure, introduced mandatory minimum imprisonment for several offences through government and opposition amendments. The same year also produced the most egregious developments yet, section 93ZAA of the Crimes Act 1900 (NSW) and the simultaneous beefing-up of Victoria's racial vilification laws. Neither provision requires any nexus to violence. Both criminalise the mere public incitement of hatred and Victoria's go further still, reaching even the incitement of contempt or ridicule. These stand in sharp contrast to the older suite of laws, which were either purely civil or confined to threats and the incitement of violence.51
Finally came the Combatting Antisemitism, Hate and Extremism (Criminal and Migration Laws) Act 2026, assented to on 21 January 2026.52 The Explanatory Memorandum completes the circle by citing, as legal foundation for the prohibited-hate-group regime, Article 4(a) and 4(b) of ICERD and Article 20(2) of the ICCPR, the very provisions against which Australia's reservations were lodged, provisions drafted by Soviet diplomats over the objection of Australian ones.53
This was a long surrender, fifty years of officials each taking one further step down a staircase built by someone else, until the country arrived at the bottom without ever consenting to descend.
Labor could not have done it aloneIt may be satisfying, for a conservative, to lay all of this at the feet of the Labor Party, but the temptation must be resisted because the record does not actually show this. Fraser ratified the Covenant. Holt's government signed the Convention. The Coalition held office for nine of the years in which section 18C operated and, after one abandoned gesture at repeal in 2014, when the party of Menzies discovered it lacked the will and stomach to defend one of the propositions that party was founded on.
The Coalition demanded the mandatory minimums in the February 2025 hate-crime laws and boasted of having toughened them. And in January 2026 the Coalition voted for the prohibited-hate-group regime, quibbling at the margins while endorsing the architecture. So, the scandal here is that no parliamentary force of any size now remembers, let alone defends, the position every Australian government held fo r most of this country's history: that the criminal law punishes conduct, and that an idea, however disagreeable, is answered in a free country by the ballot box.
The High Court testOn the afternoon of 15 May 2026, the same day the Minister for Home Affairs announced that White Australia had been specified as a prohibited hate group, the Party and its National President lodged an urgent interlocutory application and an application for constitutional relief in the High Court.54 According to the affidavit before the Court, the Party then had 1,778 members.55 The substantive proceeding, formally commenced on 18 May, attacks Part 5.3B on three principal constitutional grounds: that the Commonwealth lacks legislative power to authorise the proscription of a political party in circumstances said to be relevantly indistinguishable from Australian Communist Party v Commonwealth; that the regime impermissibly burdens the implied freedom of political communication; and that it is incompatible with Chapter III by vesting punitive power in the Executive.56
The plaintiffs initially sought emergency orders preventing the listing from taking effect. Jagot J declined to hear the application ex parte before midnight on 15 May, holding among other things that the claimed urgency was "of its own making" because the Party had known since January that it was likely to be listed but had waited until the day of specification to challenge the legislation.57 An amended interlocutory application was later heard by Gageler CJ on 3 June and dismissed the following day. One form of relief sought to restrain the operation of the Regulations themselves; Gageler CJ rejected that formulation saying: "you can injunct people"; "[y]ou can't injunct an Act."58 He also held that the balance of convenience did not justify restraining enforcement while the legislation's validity remained undecided.59 The substantive constitutional questions have been directed to the Full Court by special case for hearing in the fortnight commencing 7 September 2026.60
Consider what is now arranged before the Court. In 1950 the Menzies Liberal-Country government enacted the Communist Party Dissolution Act, declaring the Australian Communist Party unlawful, dissolving it by statute and empowering the Executive to declare affiliated organisations unlawful and particular individuals to be communists.61 In March 1951 the High Court struck the Act down by six votes to one in what remains one of the foundational judgments of Australian constitutional law.62 Dixon J declared that "the rule of law forms an assumption" of the Constitution and rejected legislation that would make Parliament's own conclusion about the facts establishing its constitutional power effectively final.63 Fullagar J expressed the same principle in the famous metaphor that "a stream cannot rise higher than its source": Parliament cannot manufacture the constitutional facts upon which its own legislative authority depends.64
Menzies then went to the people. On 22 September 1951 Australians were asked to amend the Constitution expressly to give the Commonwealth power to legislate with respect to communists and communism. They refused: 50.56 per cent voted No, against 49.44 per cent Yes, and the proposal failed.65 The proscription of political association was rejected by the Court and then by the nation, at the height of the Cold War, against an organisation openly aligned with a hostile foreign despotism.
Seventy-five years later, the doctrine forged to protect communists from proscription is the principal shield of nationalists against a proscription regime whose international legal foundations were drafted by communists.
If, in September, the Commonwealth defends Part 5.3B under the external affairs power, as the structure of the legislation plainly invites it to do, the constitutional argument will complete the final legal links in the chain traced here. The Act itself declares that the prohibited-hate-group regime exists, in part, "to give effect to Australia's obligations" under Articles 20 and 26 of the ICCPR and Articles 4(a) and 4(b) of ICERD. Those are the same international provisions whose genealogy runs through the battles described above.
The slippery slopeThe Commonwealth now possesses, permanently, the power to categorise, prohibit and imprison people from organisations and political parties on a test of social and psychological harm which is nebulous and arbitrary. Constitutional lawyers of unimpeachable respectability, Anne Twomey among them, warned during the exposure-draft period that the framework could be turned on political parties as such.6667
Unless Part 5.3B is repealed or struck down, the power remains available to future governments. The political identity of the decision-maker can change at every federal election.
That doctrine does not stop with the White Australia Party. The same nebulous test of "hate" can be turned against any organisation that prioritises national cohesion over the official multicultural orthodoxy. One Nation is an obvious next candidate. The party already faces sustained attempts to criminalise its leader's speech. Pauline Hanson has spent years in court defending a single tweet against Mehreen Faruqi under the Racial Discrimination Act, a process that has now reached the Full Federal Court and may yet reach the High Court. If the power to ban parties on ideological grounds is left intact, no nationalist force is safe.
More than that, the machinery can be turned against anyone on the right, no matter how moderate. The left routinely brands both Hanson and Trump as "fascists." Once the state is armed with a power to dissolve organisations for "hate," that elastic label becomes a ready-made warrant to silence any political current that resists the multicultural globalist settlement.
One Nation's longstanding policies, withdrawal from the United Nations and the robust defence of free speech are therefore not peripheral. They are the necessary corrective.68 Leaving the UN removes the external-affairs pretext that Commonwealth lawyers are now using to claim a power the Constitution never granted.69 Constitutional protection for free speech restores the principle that political disagreement is answered at the ballot box, not by censorship and fifteen-year prison terms.
The fight returns, therefore, to the question with which this argument began. The entire point of a constitution is to stop the government of the day from banning its political opposition. Seventy-five years ago the High Court and the Australian people refused to let that happen even against the Communist Party. The same principle is now the last shield of those who insist that Australia remains a sovereign democratic nation.
On 30 August the March for Australia will take place in cities across the country. It is a demand that the Australian people retain the fundamental democratic right to decide who they are and what laws they will live under. The alternative is the acceptance of a power that no free people should ever have surrendered, the power of a single minister, citing a Bolshevik-drafted treaty, to declare an entire political tradition "hateful".
Combatting Antisemitism, Hate and Extremism (Criminal and Migration Laws) Act 2026 (Cth); Criminal Code Part 5.3B, Divisions 114A–114C.
https://www.ag.gov.au/national-security/australias-counter-terrorism-laws
Combatting Antisemitism, Hate and Extremism (Criminal and Migration Laws) Act 2026 (Cth); Criminal Code Part 5.3B, Divisions 114A–114C.
https://www.marxists.org/archive/lenin/works/1916/jan/x01.htm?
Soviet Union 1936, Constitution (Fundamental Law) of the Union of Soviet Socialist Republics: Adopted at the Extraordinary Eighth Congress of Soviets of the U.S.S.R., December 5, 1936, Consolidated Press
Soviet Union, Constitution (Fundamental Law) of the Union of Soviet Socialist Republics (Consolidated Press, 1936), art. 123; J. Arch Getty, 'State and Society under Stalin: Constitutions and Elections in the 1930s', Slavic Review 50, no. 1 (1991): 18–35, https://doi.org/10.2307/2500596
Martin, T 1998, 'The origins of Soviet ethnic cleansing', The Journal of Modern History, vol. 70, no. 4, pp. 813–861, https://doi.org/10.1086/235168
Brandenberger, D 2025, '"Basically, it's a History of the Russian State": Russocentrism, Etatism, and the Ukrainian Question in Stalin's Editing of the 1937 Short History of the USSR', Nationalities Papers, vol. 53, no. 2, pp. 298-317, https://doi.org/10.1017/nps.2023.89
Ibid
Martin, T 2001, The Affirmative Action Empire: Nations and Nationalism in the Soviet Union, 1923-1939, Cornell University Press, Ithaca.
Johannes Morsink, The Universal Declaration of Human Rights: Origins, Drafting, and Intent (Philadelphia: University of Pennsylvania Press, 1999), 58–72; United Nations General Assembly, Third Committee, Summary Record of the 129th Meeting, 10 November 1948, UN Doc. A/C.3/SR.129.
United Nations General Assembly, Third Committee, Summary Record of the 129th Meeting, 10 November 1948, UN Doc. A/C.3/SR.129, p. 421; Johannes Morsink, The Universal Declaration of Human Rights: Origins, Drafting, and Intent (Philadelphia: University of Pennsylvania Press, 1999), 58–72.
United Nations Economic and Social Council, Commission on Human Rights, Summary Record of the 174th Meeting, 6th sess., UN Doc. E/CN.4/SR.174 (8 May 1950), pp. 6–7.
Ibid
United Nations Economic and Social Council, Commission on Human Rights, Summary Record of the Thirty-Fifth Meeting, UN Doc. E/CN.4/SR.35 (12 December 1947), pp. 4–5; United Nations, Yearbook of the United Nations 1948–49 (New York: United Nations, 1950), section on the Universal Declaration of Human Rights.
United Nations General Assembly, Universal Declaration of Human Rights, GA Res. 217 A (III), UN Doc. A/RES/217(III) (10 December 1948), art. 19.
United Nations General Assembly, 183rd Plenary Meeting, UN Doc. A/PV.183 (10 December 1948); United Nations General Assembly, Resolution 217 A (III), voting record, 10 December 1948.
Australian Human Rights Commission, 'The International Human Rights System', Australian Human Rights Commission, accessed 20 August 2026; see also Australian Government Department of Foreign Affairs and Trade, '70th Anniversary of the Universal Declaration of Human Rights', 10 December 2018.
United Nations General Assembly, Third Committee, Summary Record of the 129th Meeting, 3rd sess., UN Doc. A/C.3/SR.129 (10 November 1948), pp. 416–417.
United Nations, 'Growth in United Nations Membership', United Nations, accessed 20 August 2026.
Roland Burke, Decolonization and the Evolution of International Human Rights (Philadelphia: University of Pennsylvania Press, 2010), esp. introduction and chs 1–3.
David Keane and Annapurna Waughray, 'Introduction', in David Keane and Annapurna Waughray (eds), Fifty Years of the International Convention on the Elimination of All Forms of Racial Discrimination: A Living Instrument (Manchester: Manchester University Press, 2017), 1–32; Egon Schwelb, 'The International Convention on the Elimination of All Forms of Racial Discrimination', International and Comparative Law Quarterly 15, no. 4 (1966): 996–1068.
International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976), art. 20(2).
United Nations General Assembly, Third Committee, Draft International Covenants on Human Rights: Report of the Third Committee, 16th sess., UN Doc. A/5000 (5 December 1961), paras 43–49.
United Nations General Assembly, Third Committee, Summary Record of the 1084th Meeting, 16th sess., UN Doc. A/C.3/SR.1084 (26 October 1961), paras 7-10.
United Nations General Assembly, Third Committee, Draft International Covenants on Human Rights: Report of the Third Committee, 16th sess., UN Doc. A/5000 (5 December 1961), para. 49.
William A. Schabas, The International Legal Order's Colour Line: Racism, Racial Discrimination, and the Making of International Law (Oxford: Oxford University Press, 2023), ch. 9, pp. 244-286.
Ofra Friesel, 'Race versus Religion in the Making of the International Convention Against Racial Discrimination, 1965', Law and History Review 32, no. 2 (2014): 351–383, https://doi.org/10.1017/S0738248014000017; William A. Schabas, The International Legal Order's Colour Line (Oxford: Oxford University Press, 2023), ch. 9.
United Nations General Assembly, International Convention on the Elimination of All Forms of Racial Discrimination, GA Res. 2106 (XX), 21 December 1965, 660 UNTS 195.
H. Timothy Lovelace Jr., 'Making the World in Atlanta's Image: The Student Nonviolent Coordinating Committee, Morris Abram, and the Legislative History of the United Nations Race Convention', Law and History Review 32, no. 2 (2014): 385–429, https://doi.org/10.1017/S0738248013000667
United Nations Economic and Social Council, Commission on Human Rights, Sub-Commission on Prevention of Discrimination and Protection of Minorities, Report of the Sixteenth Session, UN Docs. E/CN.4/873 and E/CN.4/Sub.2/241 (1964), para. 74, p. 29.
Boris S. Ivanov and Wojciech Ketrzynski, Draft International Convention on the Elimination of All Forms of Racial Discrimination, UN Doc. E/CN.4/Sub.2/L.314 (15 January 1964), art. [proposed provision on incitement]; see also United Nations Economic and Social Council, Report of the Sixteenth Session, UN Docs. E/CN.4/873 and E/CN.4/Sub.2/241 (1964), para. 75, p. 29.
Boris S. Ivanov and Wojciech Ketrzynski, Draft International Convention on the Elimination of All Forms of Racial Discrimination, UN Doc. E/CN.4/Sub.2/L.314 (15 January 1964).
United Nations General Assembly, Third Committee, Denmark, Finland, Iceland, Norway and Sweden: Amendment to Amendment to Article IV, UN Doc. A/C.3/L.1245 (21 October 1965); United Nations General Assembly, Report of the Third Committee, UN Doc. A/6181 (1965), paras 63–64, 72.
International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature 7 March 1966, 660 UNTS 195 (entered into force 4 January 1969), art. 4(b).
United Nations General Assembly, Third Committee, Summary Record of the 1315th Meeting, 20th sess., UN Doc. A/C.3/SR.1315 (22 October 1965), paras 1–3, p. 133.
United Nations General Assembly, Third Committee, Summary Record of the 1318th Meeting, 20th sess., UN Doc. A/C.3/SR.1318 (25 October 1965), para. 59; United Nations General Assembly, Report of the Third Committee, UN Doc. A/6181 (18 December 1965), paras 68–70.
United Nations Treaty Collection, International Convention on the Elimination of All Forms of Racial Discrimination: United States of America—Reservations, Understandings and Declarations, ratification deposited 21 October 1994.
Yaacov Ro'i, 'Anticosmopolitan Campaign', YIVO Encyclopedia of Jews in Eastern Europe (2010); Benjamin Pinkus, The Soviet Government and the Jews, 1948–1967: A Documented Study (Cambridge: Cambridge University Press, 1984).
United Nations Treaty Collection, International Convention on the Elimination of All Forms of Racial Discrimination, Australia: signature 13 October 1966, ratification 30 September 1975; Racial Discrimination Act 1975 (Cth) No. 52 of 1975.
Koowarta v Bjelke-Petersen (1982) 153 CLR 168; [1982] HCA 27.
United Nations Treaty Collection, International Convention on the Elimination of All Forms of Racial Discrimination: Declarations and Reservations—Australia, declaration made upon ratification, 30 September 1975.
United Nations Treaty Collection, International Covenant on Civil and Political Rights: Declarations and Reservations—Australia, ratification deposited 13 August 1980.
Australian Human Rights Commission, Australia's International Human Rights Obligations (22 April 2026); United Nations Treaty Collection, International Covenant on Civil and Political Rights: Declarations and Reservations—Australia.
United Nations Treaty Collection, International Convention on the Elimination of All Forms of Racial Discrimination: Declarations and Reservations—Australia, declaration concerning art. 4(a); United Nations Treaty Collection, International Covenant on Civil and Political Rights: Declarations and Reservations—Australia, reservation concerning art. 20.
Anti-Discrimination (Racial Vilification) Amendment Act 1989 (NSW) No. 48 of 1989, ss 20C–20D as inserted into the Anti-Discrimination Act 1977 (NSW).
Parliament of Australia, Parliamentary Joint Committee on Human Rights, Freedom of Speech in Australia: Inquiry into the Operation of Part IIA of the Racial Discrimination Act 1975 (2017), paras 2.8–2.12; Racial Hatred Act 1995 (Cth) No. 101 of 1995.
Parliamentary Joint Committee on Human Rights, Report 4 of 2017 (2017), paras 1.233–1.236.
Crimes Amendment (Publicly Threatening and Inciting Violence) Act 2018 (NSW) No. 32 of 2018, sch. 1, inserting Crimes Act 1900 (NSW) s 93Z.
Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols and Other Measures) Act 2023 (Cth) No. 113 of 2023, sch. 1.
Criminal Code Amendment (Hate Crimes) Act 2025 (Cth) No. 1 of 2025.
Combatting Antisemitism, Hate and Extremism (Criminal and Migration Laws) Act 2026 (Cth) No. 2 of 2026, assented to 21 January 2026.
Ibid
White Australia Party Inc v Commonwealth of Australia [2026] HCASJ 15, [1]–[4].
White Australia Party Inc v Commonwealth of Australia [2026] HCASJ 17, [1].
White Australia Party Inc v Commonwealth of Australia [2026] HCASJ 17, [7]; White Australia Party Inc v Commonwealth of Australia [2026] HCASJ 15, [3].
White Australia Party Inc v Commonwealth of Australia [2026] HCASJ 15, [10]–[13].
White Australia Party Inc v Commonwealth of Australia [2026] HCASJ 17, [10].
White Australia Party Inc v Commonwealth of Australia [2026] HCASJ 17, [12]–[14], [20]–[27].
White Australia Party Inc v Commonwealth of Australia [2026] HCASJ 17, [8].
Communist Party Dissolution Act 1950 (Cth); Australian Communist Party v Commonwealth (1951) 83 CLR 1, 175–76 (Dixon J).
Australian Communist Party v Commonwealth (1951) 83 CLR 1; [1951] HCA 5.
Australian Communist Party v Commonwealth (1951) 83 CLR 1, 193 (Dixon J).
Australian Communist Party v Commonwealth (1951) 83 CLR 1, 258 (Fullagar J).
Australian Electoral Commission, 'Referendum Dates and Results', entry for Powers to Deal with Communists and Communism, referendum held 22 September 1951.
Anne Twomey, Submission 134, Review of the Exposure Draft Legislation: Combatting Antisemitism, Hate and Extremism Bill 2026, Parliamentary Joint Committee on Intelligence and Security (2026), p. 8.
Anne Twomey, 'Banning organisations has a sorry history—does Australia really want to go down this road again?', The Guardian, 14 January 2026.
https://www.onenation.org.au/free-speech-policy
https://www.abc.net.au/news/2026-06-21/one-nation-foreign-policy-revealed/106822090
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