Australian Communist Party v Commonwealth
Australian Communist Party v Commonwealth | |
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Latham CJ |
Australian Communist Party v The Commonwealth, also known as the Communist Party Case,[1] was a legal case in the High Court of Australia in 1951 in which the court declared the Communist Party Dissolution Act 1950 unconstitutional and invalid as being beyond the power of the Parliament. Notable Australian academic George Winterton described the case as "undoubtedly one of the High Court's most important decisions".[2]
Background
In the general election held on 10 December 1949, Prime Minister Robert Menzies led a Liberal-Country Party coalition to government pledged to dissolving the Communist Party of Australia.[2] The party had been banned before: following the
The Communist Party Dissolution Bill was brought into the House of Representatives by Prime Minister Menzies on 27 April 1950.[3]
The Bill began with a long preamble with nine 'recitals', which: "(a) cited the three powers principally relied upon: section 51(vi) of the Constitution (the defence power),
The Bill went on to (1) declare unlawful the Australian Communist Party, confiscating without compensation the property of the party; (2) deal with "affiliated organizations" (including any attempt to reconstitute the party) by purporting to empower the
The Bill was subjected to vigorous debate. In the House of Representatives, the Government accepted some Opposition amendments but rejected the Opposition-controlled Senate amendments.[4]
A re-drafted Communist Party Dissolution Bill [No. 2] was introduced by Menzies on Thursday, 28 September 1950.
On the day the Act became law, summonses were issued out of the High Court challenging the validity of the Act. The actions named as respondents:
- the Commonwealth of Australia;
- Robert Gordon Menzies, the prime minister of the said Commonwealth for the time being;
- John Armstrong Spicer, Attorney-General of the said Commonwealth for the time being;
- William John McKell, the governor-general of the Commonwealth;
- and Arnold Victor Richardson the receiver of the property of the Communist Party.
The various plaintiffs were:
- the Communist Party of Australia,
- Ralph Siward Gibson and Ernest William Campbell (editor, Tribune), who sued on behalf of and for the benefit of all the members of the Australia Communist Party;
- the Waterside Workers' Federation of Australia and its general secretary, James Healy;
- the Australian Railways Union and its general secretary, John Joseph Brown;
- Edwin William Bulmer (who sued for the Building Workers' Industrial Unionwhich was deregistered at the time) and Frank Purse;
- the Amalgamated Engineering Union, Australian Section, and Edward John Rowe, a member of the Commonwealth Council of the AEU;
- Seamen's Union of Australia and its general secretary, Eliot Valens Elliott;
- the Federated Ironworkers' Association of Australia and its national secretary, Leslie John McPhillips; and
- the Australian Coal and Shale Employees' Federation and its general president Idris Williams.[1]: 5–6
These plaintiffs were later joined by a group of intervenors:
- the Federated Ship Painters and Dockers Union;
- Sheet Metal Workers' Union;
- Federated Clerks' Union of Australia (New South Wales Branch) and its secretary, Maurice John Rodwell Hughes.
The matter was sent to Justice Dixon who stated a case for the full court to consider.[1]
When the High Court assembled to hear the matter, the bar table was crowded with the leading names of the Sydney and Melbourne Bars. For the Commonwealth and other respondents:
The case began argument on Tuesday, 14 November 1950 and continued through a total of 24 sitting days in Sydney concluding submissions on Tuesday, 19 December 1950. The Court reserved its decision which was delivered in Melbourne on Friday, 9 March 1951.
Decision
Six of the justices ruled that the act was invalid,
All seven judges accepted that the Commonwealth had legislative power to deal with subversion (although they differed as to the precise location of such a power) and that it had validly done so in the Crimes Act 1914 (Cth). Unlike the challenged law, the sedition provisions left questions of guilt to the courts to determine through criminal trials.
However, the Communist Party Dissolution Act 1950 (Cth) had simply declared the party guilty and had authorised the executive government to 'declare' individuals or groups of individuals. The validity of the law depended on the existence of a fact (a constitutional fact) which the law asserted to be a fact whether or not there actually was any factual connection between those bodies or persons and subversion. In the metaphor used by Fullagar J, "a stream cannot rise higher than its source".[1]: 258 "The validity of a law or of an administrative act done under a law cannot be made to depend on the opinion of the law-maker, or the person who is to do the act, that the law or the consequence of the act is within the constitutional power upon which the law in question itself depends for its validity. A power to make laws with respect to lighthouses does not authorize the making of a law with respect to anything which is, in the opinion of the law-maker, a lighthouse. A power to make a proclamation carrying legal consequences with respect to a lighthouse is one thing: a power to make a similar proclamation with respect to anything which in the opinion of the Governor-General is a lighthouse is another thing.".[1]: 259
This reasoning is predicated on the notion of
It should be observed at this stage that nothing depends on the justice or injustice of the law in question. If the language of an Act of Parliament is clear, its merits and demerits are alike beside the point. It is the law, and that is all. Such a law as the Communist Party Dissolution Act could clearly be passed by the
Australian States. It is only because the legislative power of the Commonwealth Parliament is limited by an instrument emanating from a superior authority that it arises in the case of the Commonwealth Parliament. If the great case of Marbury v. Madison (1803) 1 Cr. 137 [2 Law. Ed. 118] had pronounced a different view, it might perhaps not arise even in the case of the Commonwealth Parliament; and there are those, even to-day, who disapprove of the doctrine of Marbury v. Madison (1803) 1 Cr. 137 [2 Law. Ed. 118], and who do not see why the courts, rather than the legislature itself, should have the function of finally deciding whether an Act of a legislature in a Federal system is or is not within power. But in our system the principle of Marbury v. Madison (1803) 1 Cr. 137 [2 Law. Ed. 118] is accepted as axiomatic, modified in varying degree in various cases (but never excluded) by the respect which the judicial organ must accord to opinions of the legislative and executive organs.
Latham's dissent
Latham, the sole dissenter, found the act to be a valid exercise of the federal parliament's
Aftermath
Later in the year, at the
Further reading
- Greenwell J 2011, The Prelude to Petrov, Clio History Journal.
- Lindell, G. "The Constitution of Australia: growth, adaptation and conflict – reflections about some major cases and events" (PDF). (1999) 25 Monash University Law Review 257.
- Winterton, G. "Dissolving the Communists: The Communist Party Case and its Significance" in Seeing Red: The Communist Party Dissolution Act and Referendum 1951: Lessons for Constitutional Reform (1992) Evatt Foundation
- Winterton, G. "The Communist Party Case" in H. Lee and G. Winterton (eds) Constitution of Australia: Landmarks (2003) Cambridge University Press, at 108–144
- Zines, L. "'The Stream Cannot Rise Above its Source' – The Doctrine in the Communist Party Case" in his The High Court and the Constitution (1997) Butterworths
Notes
- ^ a b c d e f g Australian Communist Party v The Commonwealth [1951] HCA 5, (1951) 83 CLR 1 (9 March 1951), High Court.
- ^ a b c d e f Winterton, George. "The Significance of the Communist Party case" (PDF). (1992) 18 Melbourne University Law Review 630.
- ^ Robert Menzies, Prime Minister (27 April 1950). "Communist Party Dissolution Bill 1950" (PDF). Parliamentary Debates (Hansard). Commonwealth of Australia: House of Representatives. p. 1994.
- ^ Commonwealth of Australia, Nineteenth Parliament, Votes and Proceedings of the House of Representatives, 27 April 1950, 9–11 May 1950, 16–18 May 1950, 23 May 1950, 15 June 1950, 20 June 1950, 22–23 June 1950.
- ^ Robert Menzies, Prime Minister (28 September 1950). "Communist Party Dissolution Bill 1950 [No. 2]" (PDF). Parliamentary Debates (Hansard). Commonwealth of Australia: House of Representatives. p. 83.
- ^ Communist Party Dissolution Act 1950 (Cth).
- ^ "The Communist Party case: 65 years on". The Rule of Law Education Centre. Retrieved 11 September 2021.
- ^ Lynch, Andrew (2016). "Introduction – What Makes a Dissent 'Great'?". Great Australian Dissents. Cambridge University Press.
- ^ Handbook of the 44th Parliament (2014) "Part 5 – Referendums and Plebiscites – Referendum results". Parliamentary Library of Australia..