Australian Communist Party V Commonwealth - Background

Background

In a general election, held 10 December 1949 Prime Minister Robert Menzies led a Liberal-Country Party coalition to government pledged to dissolving the Australian Communist Party. The Party had been banned before: following the Molotov-Ribbentrop Pact, the Party had opposed Australian involvement in the Second World War in 1939, which gave Menzies' United Australia Party-Country Party government the opportunity to dissolve it on 15 June 1940 under the National Security (Subversive Associations) Regulations 1940, (Cth) relying on the defence power of the Constitution of Australia. These regulations were invalidated by the High Court in the Jehovah's Witnesses case (Adelaide Company of Jehovah's Witnesses Inc v Commonwealth (1943) 67 CLR 116.) Before that, the ban on the Communist Party (now supporting the war after the invasion of the Soviet Union) was lifted by the Curtin government in December 1942.

The Communist Party Dissolution Bill was brought into the House of Representatives by Prime Minister Menzies on 27 April 1950.

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) summarized 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 ', especially espionage, sabotage, treason or subversion, and promoted strikes in order 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)."

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 government) 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 was `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.'

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.

A re-drafted Communist Party Dissolution Bill was introduced by Menzies on Thursday, 28 September 1950. 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 assent and making the Act operative the following day.

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 Australian Communist Party.

The various plaintiffs were:

• the Australian Communist Party,
• Ralph Siward Gibson and Ernest William Campbell (Editor, Tribune (Sydney)), 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 Union which 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.

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.

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: Garfield Barwick KC, Alan Taylor KC, Victor Windeyer KC, Stanley Lewis KC, Richard Ashburner, Bernard Riley, Murray McInerney, Cliff Menhennitt, George Lush and Bruce MacFarlan. The Communist Party and its officers and members were represented by Fred Paterson, Ted Laurie, Ted Hill and Max Julius. The unions were represented by various combinations of counsel: H V Evatt KC, Simon Isaacs KC, T A Sullivan, Claude Weston KC, C M Collins and Maurice Ashkanasy KC.

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.