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The High Court is currently grappling with a constitutional challenge by the White Australia Party against the validity of Part 5.3B of the Commonwealth Criminal Code. This part of the law allows the police minister to declare a group to be a "prohibited hate group" and impose severe penalties for continued membership, directing operations, funding, training, or supporting the group.

The penalties range from seven to 15 years of imprisonment. The minister must be convinced on reasonable grounds that the group has engaged in "hate crime" or plans to engage in such conduct, which may have occurred long ago when it was not a crime. The minister must also consult the opposition leader, the attorney-general and ASIO before making the declaration.

The White Australia Party argues that Part 5.3B is unconstitutional on three grounds. Firstly, the Commonwealth does not have the power to enact the law. Secondly, it violates the implied freedom of political communication. Thirdly, it infringes upon the separation of powers. The first argument hinges on whether the external affairs power applies to allow the Commonwealth to make laws implementing treaty obligations related to prohibiting racial hatred and banning organizations that promote racial discrimination.

The second argument is that the law breaches the implied freedom of political communication by potentially curbing political disagreement. The third argument claims that the executive government is exercising judicial power by banning the group, which is a violation of the separation of powers. The High Court will need to decide on the constitutionality of Part 5.3B and the appropriate boundaries for executive and legislative power.