In the late 1940's the Australian Government was dealing with attempts by the Australian Communist Party to destabilize the government and economy by encouraging strikes in essential industries.
The Australian Parliament passed the Communist Party Dissolution Act to dissolve the Australian Communist Party, forfeit their property to the Government, as well as to disqualify the members and officers of the Party from employment if they worked for the Government.
The Act was challenged in the High Court of Australia as being beyond the law making power of the Parliament according to the Australian Constitution.
In one of its most famous judgments the High Court struck down the Act because Parliament did not have the power to make such a law according to the Australian Constitution. A check on the power of Parliament according to the law is a very modern expression of the legacy of the Magna Carta.
The story of the Communist Party, Communist Party Dissolution Act and the role of the High Court is told below in a newspaper format. Note: they are not real newspapers from the 1940s and 50s, but representations. Many of the pictures, advertisements and red links within the text provide more information, and links to other sources of information.
The influence of communism is growing as the Government fails to resolve disputes with workers in key industries.
The government has taken the step of sending in the Army and RAAF to deal with the striking coal miners, a move unprecedented during peace time.
Militancy by workers who are members of the trade unions has increased dramatically since the end of the Second World War . The strength of these groups has grown dramatically with strikes coordinated by the unions now being commonplace. A member of the Federated Ironworkers Union claimed that workers had made sacrifices during the great depression of the 1930s and the war. The trade union movement is now determined to fight for better working conditions to make up for their past losses.
Many workers feel trapped and face a grim choice: capitulate and give up the fight for better conditions, or join the Communist Party which now controls most of the trade unions. Many are calling on the Government to take immediate action to prevent the whole union movement from coming under Communist control.
“Research officers of the Liberal Party in their latest bulletin point out that three Communist controlled unions were responsible for 85 per cent, of the working days lost through strikes in 1946-47-48.”
- Liberal Party Researchers
There has also been a substantial increase in members of the Communist Party of Australia, who are now said to control the Waterside Workers Federation, Seaman’s Union of Australia, Federated Ironworkers Union of Australia, and the Australasian Coal & Shale Employees Federation. At a recent Australian Council of Trade Unions (ACTU) congress members of the Communist Party were only narrowly defeated in their bid to have a communist candidate elected as president.
Sources have suggested that moves by Communists to increase their influence are being supported and orchestrated by agents of the USSR. Many have called on the Government to offer trade unions alternatives to seeking support from the Communist Party. The sending of 1300 troops to break up miners strikes has had its critics inside and outside the Government and Labor Party - many say the Chifley Government has done permanent damage to its hopes of reelection because of this.
Many citizens are alarmed by claims made by leaders of the Communist Party that it ‘would welcome the Soviet Army if it ever entered Australia in pursuit of an imperialistic aggressor’.
Prime Minister Chifley's platform for re-election in October will no doubt need to address the Communist problem with a Gallup poll finding that 80% of Australians want the Communist Party banned.
The Opposition Leader, Mr Menzies (pictured left) announced this week that if elected the Liberal and Country Parties would outlaw the Communist Party and any new form into which it might change itself. Mr Menzies was joined on the platform by Mr A. W. Fadden, Federal Leader of the Country Party. Both men have entered the election campaign with a renewed vigour and intensity that many claimed had been lacking from Mr Chifley in recent speeches.
The Government passed a law yesterday banning the Communist Party of Australia, seizing their property and preventing members of the party from holding key offices of influence.
The government made a strong case for the Communist Party Dissolution Act and outlined the dangers of communism in the law’s preamble. Strong anti-communist sentiment before the recent election and a Gallup poll stating that up to 80% of Australians were in support of banning the Communist Party were also strong indicators of support for the new law.
The Dissolution Act accuses the Communist Party of seeking to the overthrow the Australian government, and wanting to replace Australia's democracy with a dictatorship of the proletariat. The new law also aims to stop the influence of Communists who seek to undermine the Australian system of government by preventing them from being an employee of the Australian Government, and seizing the property of the Communist Party.
Despite the law having the support of both the Government, the Opposition, and the public, some commentators have raised objections that banning the Communist Party during peace time is a step too far. A legal challenge against law in the High Court of Australia is expected within the week. Critics of the law claim that it is unnecessary, undemocratic, and that it reverses of the burden of proof.
“The pending bill is a grave reversal of our legal ideals, which traditionally, far from easing the Crown’s burden (that they must prove the offence), has rather deemed it fitting to increase it.”
- Julius Stone. Faculty of Law, University of Sydney
“the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.”
- Leeton. LEGIS
Prime Minister of Australia, Mr Menzies (left), and the former Attorney-General under the Chifley Government, Dr Evatt (right) has made a number of speeches about the banning of the Communist Party. Mr Menzies has spoken strongly in support of ban, while Dr Evatt has been campaigning against it. Dr Evatt is said to be considering representing the Waterside Workers' Federation if a case to challenge the law is brought before the High Court.
The Communist Party Dissolution Act reverses the burden of proof .
The act allows the government to declare people or organisations a threat to Australia. If someone is declared a threat to Australia they unable to hold certain offices or be employed by the government. The ‘declared’ status can only be overturned if a person proves they are not a Communist in a court of law.
Rather than the government proving that they are a Communist the accused must instead prove their innocence. This dangerous reversal of an established legal principle is leading to much debate.
"You mustn’t sell, delay, deny, A freeman’s right or liberty; No freeman shall be fined or bound, Or dispossessed of freehold ground, Except by lawful judgement found And passed upon him by his peers. And so when mob or monarch lays Too rude a hand on British ways, Forget not, in your law or deed The Charter signed at Runnymede."
The High Court of Australia has struck down the Communist Party Dissolution Act 6-1 stating that the Australian Constitution does not give the Parliament the power to make such a law.
The Court paid particular attention to the preamble of the Act - the Hon Justice McTiernan quickly dismissed the legal basis of the preamble stating that the government cannot ‘recite itself’ into power, and that it is the role of the High Court, not the government, to interpret the meaning of the Australian Constitution.
Justice Fullagar echoed this view, writing that “the validity of a law, or of an administrative act done under the law, cannot be made to depend on the opinion of the law-maker.”
Members of the Australian Communist Party are said to be pleased with the decision and are calling it a victory for liberty in Australia.
The High Court acknowledged that Parliament had the power to make laws about national security, however the Court's judgment disputed the Government's definitions of subversion and national security.
The High Court pointed out that just because the government says something is a threat to national security does not mean that it is actually threat to national security.
Justice Webb argued that if it were able to be proven the Communist Party has acted as the government described in the preamble of the Act then it could make a law to ban the Communist Party. However, he wrote that the claims of the preamble could not be proven.
Justice McTiernan also commented that if Australia was at war than the legislation would be valid, but that the current situation cannot be considered a state of war in the traditional sense.
Chief Justice Latham disagreed with the other six Justices. His dissenting judgment stated that it is not up to the High Court to decide whether the nation is at war, and who is classified as an enemy of the state.
Such a change to the Australian Constitution would mean that the High Court would not be able to strike down a law of this kind.
Some commentators have speculated that the Menzies Government could also ask the state governments of Australia to enact laws to ban the Communist Party.
The referendum to change the Australia Constitution to ban the Communist Party has been defeated.
Voting totals at the close of counting last night stood: No, 2,075,674 ; Yes, 1,962,209 ; majority for No, 113,465. At present, Yes leads in three States, but the big No majorities in the other three cannot now be overtaken.
The Referendum required voters to cast a Yes or No vote to the question: Do you approve of the proposed law for the alteration of the Constitution entitled 'Constitution Alteration (Powers to deal with Communists and Communism) 1951'?
The campaign surrounding the referendum has seen a fervent campaign by the Prime Minister, Mr Menzies,
for the Yes vote to ban the Communist Party. The campaigning of the Opposition Leader, Dr Evatt, seems
to have tipped the
Supporters of the changes to the Constitution have argued continuously that the government must be given special powers to deal with communism to prevent any further damage to national industry and the national economy. Meanwhile those against the changes have stressed the imposition the legislation would have on civil liberties. Dr Evatt has particularly emphasised that the change to the Constitution would give the government too much power, reverse the burden of proof, and that it is undemocratic in its approach.
Mr Menzies issued the following statement on confirmation that the referendum had been defeated:
"Our people, most of whom detest Communism, have voted to refuse the Commonwealth Parliament legislative power over Communism. As a democrat, I respect and recognise the popular voting. As a result, however, I fear the decision will encourage Communism and handicap the Government in its fight against these unaustralian elements.
The honesty of the people's approach is unquestioned, but I am bound to express my belief that they were misled by a wicked and unscrupulous No campaign.
There is also in this vote a further proof of the fact, demonstrated in every previous referendum in our history, that no amendment of the Commonwealth Constitution can be carried if the Parliamentary Opposition is against it.
With such powers as it has, the Government will now vigorously resume its interrupted labours in the fields of economics and financial administration. It also believes that it can reasonably ask the people themselves to make a special effort to resist Communist interference with national production and to contribute that; measure of energy and creative work that our problems call for.
After all. the fewer powers of Government, the greater the responsibility of the people themselves.”
The Australian Constitution provides limits on the power of the Parliament to make laws. The power of the High Court of Australia to strike down a law which is not authorised by the Australian Constitution has its foundation in the idea from the Magna Carta that there should be limits on the power of the king. This is the central principle of the rule of law - that no one is above the law, and everyone is subject to it.
This case highlights the way in which an independent judiciary free of political influence can interpret the law and act as a check on the power of government. The origins of an independent and impartial judiciary can be found in the Magna Carta in Clause 45.
The legacy of Magna Carta can also be seen when the following are threatened:
Read more about the Communist Party case and the people, groups and institutions involved: