Australian Communist Party v Commonwealth
Encyclopedia
Australian Communist Party v The Commonwealth (1951) 83 CLR
1, also known as the Communist Party Case, was a legal case in the High Court of Australia
described as "undoubtedly one of the High Court's most important decisions."
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 [fraud]', 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 [No. 2] 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.
, John Latham the Act was invalidated. Five of the remaining Justices gave similar reasons.
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 authorized the executive government to 'declare' individuals or groups of individiuals. 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. "The Constitution does not allow the judicature to concede the principle that the Parliament can conclusively "recite itself" into power." In the metaphor used by Fullagar J, "a stream cannot rise higher than its source".
"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.".
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 as follows:
"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."
, 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 Dr. H. V. Evatt
campaigned strongly on civil liberties grounds, and the proposal was narrowly defeated.
Commonwealth Law Reports
The Commonwealth Law Reports are the authorised reports of decisions of the High Court of Australia. The CLR are published by the Lawbook Company, a division of Thomson Reuters...
1, also known as the Communist Party Case, was a legal case in the High Court of Australia
High Court of Australia
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...
described as "undoubtedly one of the High Court's most important decisions."
Background
In a general election, held 10 December 1949 Prime MinisterPrime Minister of Australia
The Prime Minister of the Commonwealth of Australia is the highest minister of the Crown, leader of the Cabinet and Head of Her Majesty's Australian Government, holding office on commission from the Governor-General of Australia. The office of Prime Minister is, in practice, the most powerful...
Robert Menzies
Robert Menzies
Sir Robert Gordon Menzies, , Australian politician, was the 12th and longest-serving Prime Minister of Australia....
led a Liberal
Liberal Party of Australia
The Liberal Party of Australia is an Australian political party.Founded a year after the 1943 federal election to replace the United Australia Party, the centre-right Liberal Party typically competes with the centre-left Australian Labor Party for political office...
-Country Party
National Party of Australia
The National Party of Australia is an Australian political party.Traditionally representing graziers, farmers and rural voters generally, it began as the The Country Party, but adopted the name The National Country Party in 1975, changed to The National Party of Australia in 1982. The party is...
coalition to government pledged to dissolving the Australian Communist Party.
The Party had been banned before: following the Molotov-Ribbentrop Pact
Molotov-Ribbentrop Pact
The Molotov–Ribbentrop Pact, named after the Soviet foreign minister Vyacheslav Molotov and the German foreign minister Joachim von Ribbentrop, was an agreement officially titled the Treaty of Non-Aggression between Germany and the Soviet Union and signed in Moscow in the late hours of 23 August 1939...
, the Party had opposed Australian involvement in the Second World War in 1939, which gave Menzies' United Australia Party
United Australia Party
The United Australia Party was an Australian political party that was founded in 1931 and dissolved in 1945. It was the political successor to the Nationalist Party of Australia and predecessor to the Liberal Party of Australia...
-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
Operation Barbarossa
Operation Barbarossa was the code name for Germany's invasion of the Soviet Union during World War II that began on 22 June 1941. Over 4.5 million troops of the Axis powers invaded the USSR along a front., the largest invasion in the history of warfare...
) was lifted by the Curtin
John Curtin
John Joseph Curtin , Australian politician, served as the 14th Prime Minister of Australia. Labor under Curtin formed a minority government in 1941 after the crossbench consisting of two independent MPs crossed the floor in the House of Representatives, bringing down the Coalition minority...
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
Marxism-Leninism
Marxism–Leninism is a communist ideology, officially based upon the theories of Marxism and Vladimir Lenin, that promotes the development and creation of a international communist society through the leadership of a vanguard party over a revolutionary socialist state that represents a dictatorship...
, as expounded by Marx
Karl Marx
Karl Heinrich Marx was a German philosopher, economist, sociologist, historian, journalist, and revolutionary socialist. His ideas played a significant role in the development of social science and the socialist political movement...
and Lenin
Vladimir Lenin
Vladimir Ilyich Lenin was a Russian Marxist revolutionary and communist politician who led the October Revolution of 1917. As leader of the Bolsheviks, he headed the Soviet state during its initial years , as it fought to establish control of Russia in the Russian Civil War and worked to create a...
', to create a 'revolutionary situation' enabling it 'to seize power and establish a dictatorship of the proletariat
Dictatorship of the proletariat
In Marxist socio-political thought, the dictatorship of the proletariat refers to a socialist state in which the proletariat, or the working class, have control of political power. The term, coined by Joseph Weydemeyer, was adopted by the founders of Marxism, Karl Marx and Friedrich Engels, in the...
.' 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
Strike action
Strike action, also called labour strike, on strike, greve , or simply strike, is a work stoppage caused by the mass refusal of employees to work. A strike usually takes place in response to employee grievances. Strikes became important during the industrial revolution, when mass labour became...
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
Trade union
A trade union, trades union or labor union is an organization of workers that have banded together to achieve common goals such as better working conditions. The trade union, through its leadership, bargains with the employer on behalf of union members and negotiates labour contracts with...
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
Australian House of Representatives
The House of Representatives is one of the two houses of the Parliament of Australia; it is the lower house; the upper house is the Senate. Members of Parliament serve for terms of approximately three years....
, the Government accepted some Opposition amendments but rejected the Opposition-controlled
Senate
Australian Senate
The Senate is the upper house of the bicameral Parliament of Australia, the lower house being the House of Representatives. Senators are popularly elected under a system of proportional representation. Senators are elected for a term that is usually six years; after a double dissolution, however,...
amendments.
A re-drafted Communist Party Dissolution Bill [No. 2] was introduced by Menzies on Thursday, 28 September 1950. In his second reading speech, Menzies threatened a double dissolution
Double dissolution
A double dissolution is a procedure permitted under the Australian Constitution to resolve deadlocks between the House of Representatives and the Senate....
of Parliament if the Senate again rejected the measure. The Labor Party
Australian Labor Party
The Australian Labor Party is an Australian political party. It has been the governing party of the Commonwealth of Australia since the 2007 federal election. Julia Gillard is the party's federal parliamentary leader and Prime Minister of Australia...
Opposition allowed it passage through the Senate on 19 October 1950 and the Government wasted no time in gaining assent
Royal Assent
The granting of royal assent refers to the method by which any constitutional monarch formally approves and promulgates an act of his or her nation's parliament, thus making it a law...
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
John Spicer (Australian politician)
Sir John Armstrong Spicer was an Australian lawyer, politician, cabinet minister and judge.Spicer was born in the Melbourne suburb of Prahran, but was taken to England by his family in 1905 and educated at Chelston School, Torquay. His family returned to Australia in 1911 and he attended Hawksburn...
, Attorney-General of the said Commonwealth for the time being; William John McKell
William McKell
Sir William John McKell GCMG , Australian politician, was Premier of New South Wales from 1941 to 1947, and was the 12th Governor-General of Australia. He was also the oldest Governor General of Australia, at 93 when he died....
, 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
Seamen's Union of Australia
The Seamen's Union of Australia was the principal trade union for merchant seamen in Australia from 1876 to the 1991. Australian seamen were forerunners of maritime trade unionism. Efforts to form trade unions amongst merchant seamen trading out of Australian ports can be traced back to 1874, with...
and its General Secretary, Eliot Valens Elliott
Eliot V. Elliott
Eliot Valens Elliott was a trade union leader of the Seamen's Union of Australia from 1941 to 1978. Born in New Zealand, Elliott left school at the age of 15, briefly worked on the New Zealand railways, before becoming a merchant seaman and travelling the world.During the 1920s, Elliott moved to...
; 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
Federated Ship Painters and Dockers Union
The Federated Ship Painters and Dockers Union was an Australian trade union that covered "mostly work associated with chipping, painting, scrubbing, cleaning, working in every size of tanks, cleaning boilers, docking and undocking vessels, and rigging work"...
; 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
Owen Dixon
Sir Owen Dixon, OM, GCMG, KC Australian judge and diplomat, was the sixth Chief Justice of Australia. A justice of the High Court for thirty-five years, Dixon was one of the leading jurists in the English-speaking world and is widely regarded as Australia's greatest ever jurist.-Education: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
Garfield Barwick
Sir Garfield Edward John Barwick, was the Attorney-General of Australia , Minister for External Affairs and the seventh and longest serving Chief Justice of Australia...
KC, Alan Taylor
Alan Taylor (jurist)
Sir Alan Russell Taylor KBE KC, 25 November 1901 – 3 August 1969) Australian judge, was a Justice of the High Court of Australia.Taylor was born in 1901 in the city of Newcastle, New South Wales...
KC, Victor Windeyer
Victor Windeyer
Major General Sir William John Victor Windeyer KBE CB DSO and Bar PC KC Australian judge, soldier and educator, was a Justice of the High Court of Australia....
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
Fred Paterson
Frederick Woolnough Paterson was an Australian politician, activist, unionist and lawyer. He was the only member of a Communist Party ever to be elected to a parliament anywhere in the Commonwealth of Australia....
, Ted Laurie, Ted Hill
Ted Hill (Australian Communist)
Edward Fowler Hill was an Australian barrister and communist activist. He was chairman of the Communist Party of Australia from 1964 to 1986....
and Max Julius
Max Julius
Max Nordau Julius was an Australian barrister and communist.Born in South Brisbane to Hungarian tailor Julius Isack and his Romanian-born wife Ernestina, née Lang, he was raised a non-orthodox Jew and attended Leichhardt Street State School, winning a scholarship to Brisbane Grammar School in 1929...
. 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
Maurice Ashkanasy
Maurice Ashkanasy CMG was an Australian barrister and Jewish community leader.Ashkanasy was born Moses Ashckinasy at Mile End Old Town in London to Palestinean-born tailor's cutter Solomon Ashckinasy and Annie, née Cohen, who was born in Russia...
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.
Decision
Over the sole dissent of the Chief JusticeChief Justice of Australia
The Chief Justice of Australia is the informal title for the presiding justice of the High Court of Australia and the highest-ranking judicial officer in the Commonwealth of Australia...
, John Latham the Act was invalidated. Five of the remaining Justices gave similar reasons.
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 authorized the executive government to 'declare' individuals or groups of individiuals. 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. "The Constitution does not allow the judicature to concede the principle that the Parliament can conclusively "recite itself" into power." In the metaphor used by Fullagar J, "a stream cannot rise higher than its source".
"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.".
This reasoning is predicated on the notion of "judicial review
Judicial review
Judicial review is the doctrine under which legislative and executive actions are subject to review by the judiciary. Specific courts with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority...
", 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
Wilfred Fullagar
Sir Wilfred Kelsham Fullagar, KBE, KC was a judge on the High Court of Australia.-Early Life and Studies:...
expressed this as follows:
"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
Parliament of the United Kingdom
The Parliament of the United Kingdom of Great Britain and Northern Ireland is the supreme legislative body in the United Kingdom, British Crown dependencies and British overseas territories, located in London...
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."
Aftermath
Later in the year, at the Australian referendum, 1951Australian referendum, 1951
The 1951 Australian Referendum was held on 22 September 1951 and sought approval for the federal government to ban the Communist Party of Australia. It was not carried.-Background:...
, 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 Dr. H. V. Evatt
H. V. Evatt
Herbert Vere Evatt, QC KStJ , was an Australian jurist, politician and writer. He was President of the United Nations General Assembly in 1948–49 and helped draft the United Nations Universal Declaration of Human Rights...
campaigned strongly on civil liberties grounds, and the proposal was narrowly defeated.
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." (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 Australiaal 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