The Communist Party Dissolution Act 1950 (Cth) is beyond the power of the Parliament and is invalid. It is not supported by the express incidental power read with the executive power of the Constitution or under an implied nationhood power. The Act does not prescribe any rule of conduct or prohibit specific acts or omissions by way of attack or subversion, but deal directly with bodies and persons named and described. "The stream cannot rise above the source", or, "The Parliament cannot recite itself into power" the Parliament itself purports to determine, or empower the Executive to determine, the very facts upon which the existence of the power depends.
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]
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), section 51(xxxix) (the express incidental power), and section 61 (the executive power);
"(b) summarised the case against the Communist Party by reference to its objectives and activities: it was said to engage in activities designed, in accordance with 'the basic theory of communism, as expounded by Marx and Lenin', to create a 'revolutionary situation' enabling it 'to seize power and establish a dictatorship of the proletariat.' To this end, it engaged in 'activities ... designed to ... overthrow ... the established system of government in Australia and the attainment of economic, industrial or political ends by force, ... intimidation or [fraud]', especially espionage, sabotage, treason or subversion, and promoted strikes to disrupt production in industries vital to Australia's security and defence, including coal-mining, steel, engineering, building, transport and power; and
"(c) asserted that the measures taken by the Bill were necessary for Australia's defence and security and the execution and maintenance of its Constitution and laws, thereby tying the Bill's operative provisions to the powers cited in (a)."[2]: 638
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 Governor-General (in effect, the Executive) to declare unlawful affiliated bodies if satisfied that their existence was prejudicial to security and defence which resulted in dissolution and seizure of its property; evidence supporting a declaration had to be considered (not necessarily accepted as proof) by a committee of Government appointees and affected organisations could only gain relief by proving to a Court that they were not an affiliate but were unable to challenge security declarations; further, it created an offence for a person knowingly to be an officer or member of an unlawful association and liable to 5 years imprisonment; and (3) persons could be declared to be a communist or Party officer or member and to be engaged, or 'likely to engage', in activities prejudicial to the security and defence of Australia: such declared persons could not be employed by the Commonwealth or a Commonwealth authority, nor could they hold office in a union in an industry declared by the governor-general to be 'vital to the security and defence of Australia.'[2]: 639–640
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.[5] In his second reading speech, Menzies threatened a double dissolution of Parliament if the Senate again rejected the measure. The Labor Party Opposition allowed it passage through the Senate on 19 October 1950 and the Government wasted no time in gaining royal assent and making the Act operative the following day.[6]
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;
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 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
The justices of the Court that sat on this case. Back (left to right): Wilfred Fullagar, William Webb, Dudley Williams, Frank Kitto. Front (left to right): Owen Dixon, John Latham, Edward McTiernan.
Six of the justices ruled that the act was invalid,[2]: 649 over the sole dissent of the Chief JusticeJohn Latham.
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 judicial review, sometimes referred to as the principle in Marbury v Madison in recognition of its origins in the federal system of the United States of America. In performing the function of judicial review, the judges insist that their role is judicial and not political. In a well-known passage, Justice Wilfred Fullagar expressed this by stating,[1]: 263
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 Parliament of the United Kingdom or of any of 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 defence power. His opinion sought to uphold parliamentary supremacy, on the grounds that the exercise of the defence power was inherently a matter for political rather than judicial judgment. He was the only member of the court who had previously served as a government minister.[7] Andrew Lynch included Latham's dissent in his compilation Great Australian Dissents, with a chapter authored by George Williams. Lynch described it as "probably the most controversial inclusion" and Williams stated that it had been "eclipsed by the brilliance of the majority position". Justice Ian Callinan extensively quoted Latham in his opinion in Thomas v Mowbray (2007), relating to anti-terrorism laws.[8]
Aftermath
Later in the year, at the 1951 referendum, Menzies sought to amend the Constitution to permit the parliament to make laws in respect of Communists and Communism where this was necessary for the security of the Commonwealth. If passed, this would have given a government the power to introduce a bill proposing to ban the Communist Party (although whether it would have passed the Senate is an open question). However, the Opposition leader H. V. Evatt campaigned strongly on civil liberties grounds, and the proposal was narrowly defeated.[9]
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
^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.
