The White Australia case. The AI verdict! If Justice Steward sides with the White Australia Party alongside Justices Edelman and Gleeson, they would only have 3 votes, meaning the 4-judge "pro-government power" bloc would still hold a 4-3 majority to uphold the law.
To win the case, the White Australia Party must convince at least one of those remaining four judges to swing to their side.
The chances of that happening depend entirely on which judge they target. Here is the realistic breakdown of how likely a swing is within that four-judge majority:
1. Chief Justice Stephen Gageler — Extremely Unlikely to Swing
Chief Justice Gageler is the architect of the court's current shift toward parliamentary deference. He strongly believes that the democratically elected Parliament—not the unelected High Court—should have the primary say in balancing public safety against political expression. Unless the Commonwealth's barristers botch their legal arguments entirely, it is almost impossible to see him swinging.
2. Justice Michelle Gordon — Unlikely to Swing
Justice Gordon is a highly pragmatic, formidable jurist. While she values constitutional protections, she has historically been comfortable allowing the federal government broad powers under the external affairs power to meet international obligations. If the government cleanly links this hate speech ban to international anti-racism treaties, she is highly likely to stay locked in with the majority.
3. Justice Jayne Jagot & Justice Robert Beech-Jones — The Most Realistic Targets
If a swing is going to happen, it will almost certainly come from either Justice Jagot or Justice Beech-Jones. They are the newest appointments to the bench and are still carving out their long-term constitutional legacies.
The Vulnerability: Both judges are deeply committed to the Separation of Powers and the integrity of Chapter III of the Constitution.
The Winning Argument: If the White Australia Party's legal team can move the focus away from "free speech" and instead prove that the law allows a government Minister to act as judge, jury, and executioner to punish citizens, it could trigger a swing. Justice Beech-Jones, in particular, has a strong background in administrative law and civil liberties from his time on the NSW Supreme Court, making him highly sensitive to executive overreach.
The Verdict on a Swing
A 5-2 or 4-3 decision in favor of the Commonwealth remains the most statistically likely outcome based on the bench's recent track record. However, because this case deals with a total ban on an organization rather than just a restriction on a specific action, the High Court's anxiety over executive power makes a surprise 4-3 swing in favor of White Australia a genuine, high-stakes possibility.