Australian Communist Party v Commonwealth PDF

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Australian Communist Party v Commonwealth...

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Australian Communist Party v Commonwealth (1951) 83 CLR 141 1. The facts of the case;  19/10/1950 – Communist Party Dissolution Act 1950 (Cth) was passed at the request of Menzies.  Act served as one of the main points in Menzies electoral campaign which was designed to protect Australia against various threats perceived to be posed by Australian Communist Party and associated travellers.  Act intended to dissolve Communist Party and confiscate all it’s property and allowed for the Governor-General to declare other Communist affiliated things to be unlawful, they could also issue similar declarations regarding individuals and preventing them from being employed in federal public service or any position involved “vital to the security and defence of Australia” like ports.  Act included a preamble with nine recitals outlining Parliament’s views on the danger posed by Communism and why the Act was constitutionally valid. 2. The relevant social and political context in which it was decided;  Menzies has been in power for around a year, Communist Party Dissolution Act 1950 was one of his main campaigns.  Latham CJ compared the possible danger of the Communist Party to declarations of war in First and Second World Wars  Australian troops were fighting in Korean War at time Act was passed 3. The key constitutional issues for determination by the Court;  Did the validity of the Communist Party Dissolution Act 1950 (Cth) depend only on the truth, or otherwise, of the ‘facts’ asserted by the nine recitals that formed the preamble of the Act? o If the validity of the Act depended only on the truth of the preamble, then Parliament would be free to determine the limits of its own power, and the High Court would be reduced to being a minor branch of the federal government, unable to function as an effective check on the power of the legislature or the executive. If the Parliament said that the Australian Communist Party was a threat to the security of Australia, that would be that, and the High Court would not be able to challenge the validity of the Act.  If that was not the proper test for the Act’s validity, was the Act invalid under some other test? o In Australia’s system of government, the Federal Parliament cannot make laws about anything it wants; it is constrained by the Constitution, which lists those areas where the Parliament has power to make laws. If a federal law is not supported by one of these ‘heads of power,’ it is said to be ultra vires, or ‘beyond power.’ This means the law is invalid. This doctrine was crucial in the Communist Party case. o Two particular heads of power were the main focus: the defence power in s 51 (vi) of the Constitution, which gives the Federal Parliament the power to make laws with respect to “the naval and military defence of the Commonwealth and of the several States,” and the executive, or

‘nationhood,’ power in s 61 of the Constitution, which gives the executive branch of government power over “the execution and maintenance of [the] Constitution, and of the laws of the Commonwealth.” o Of the seven judges who heard the case, a majority of five answered the first question above ‘no,’ but answered the second question ‘yes,’ saying that the validity of the Communist Party Dissolution Act was not simply a matter of determining whether the asserted facts were correct; whether or not those facts were correct, the Act still had to fall within one of the enumerated powers of the Commonwealth. Since it didn’t, it was invalid. 4. A summary of the courts reasons;  Latham CJ: o The defence of the Commonwealth is a fundamentally important power, which, if not exercised properly, will preclude the exercise of any other powers of the Commonwealth, because there will be no Commonwealth. “Being comes before well-being” o Defence policy is inherently political which involves many matters of ‘judgment’, not just facts that might be proven by evidence admissible in a court. o The Court should have inquired whether the content of the Act was sufficiently connected with Parliament’s intention to alleviate the dangers posed by communists in Australia, but not whether Parliament was allowed to designate communists in Australia as posing that level of danger. Since the Act clearly adopted measures that would alleviate the danger said to be posed by communists in Australia, Latham argued, it was valid.  Dixon J: o The judicial branch is tasked with deciding whether particular legislation is a valid exercise of the limited powers of Parliament and importance of preserving and defending the country doesn’t exclude laws like the the Act. o Rejected executive power of s 61 a a source of validity of the Act as it was directed to maintaining government in the constitutionallyprescribed form (not to maintain federal government at all costs). o Constitutional powers are governed by constitutional limitations and assumptions. o Defence power - certain actions of the federal government which would be invalid in a time of peace, may be valid in times of war, because of the expanding nature of the defence power. o The situation in Australia was not dangerous enough to justify such a law as a legitimate use of the defence power in s 51 (vi)  McTiernan J: o The Act’s preamble was “in no way decisive of the question whether the Act is valid or invalid, for that is a judicial question which only the judicature has the power to decide finally and conclusively.” o In a period of emergency, Parliament’s powers expand, scope of defence power enlarges, and Parliament may perhaps be allowed to designate

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certain individuals or organisations as security threats and control their civil liberties. o Of whether a period is one of emergency or peace, and what measures should be taken, are questions for Parliament. However, the High Court retains its ability to decide whether the measures Parliament proposes have a reasonable relation to the emergency. o At time the Act was passed, there was no emergency sufficient to give Parliament control over the civil liberties of communists; the defence power was not sufficiently enlarged. Thus, the Act was invalid.\ Williams J: o A Court must be aware of dangers to security at the time of determining the validity of legislation. This includes whether a period is peace or emergency. o Defence power didn’t extend to this kind of legislation as Australia’s security wasn’t really threatened much at all. o The legislation prohibits no act, enjoins no duty, creates no offence, imposes no sanction for disobedience to any command, prescribes no standard or rule of conduct,” but instead imposed penalties on certain individuals and organisation just because they existed, and were deemed to be a threat. Webb J: o If the threat posed to Australia’s security by communists was only a short-term threat, then the Act would be invalid. o It was the responsibility of the Commonwealth, who was arguing that the Act was valid, to prove that the ‘facts’ asserted in the preamble were true, and that the threat posed to Australia’s security by communists was a long-term threat. Since they didn’t attempt to do that, Webb found the Act was invalid. Fullager J: o Defence power supports two different sorts of laws. The primary aspect supports “laws which have, as their direct and immediate object, the naval and military defence of the Commonwealth.” o Typically only in situations like the “commencement or immediate apprehension of war,” or the “period necessary for post-war readjustment,” where defence power has been recognised. o Deciding whether the necessary crisis exists, and the secondary aspect of the power has been enlivened, is a job for the Court. o The state of affairs that existed at the time the Act was passed was not grave enough to make the Act valid as an exercise of the secondary aspect of the defence power. o Act did not provide an objective link between the individuals and organisation to be penalised, and the necessity of penalising them in order to protect the Commonwealth against subversion. Without such an objective link, Fullagar held, the Act could not be valid as an expression of this inherent power either. Kitto J:

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High Court must have the final say in determining the constitutional validity of all legislation. Kitto asserted that he doesn’t think the Act has such a character that links it to the defence power in s 51 (vi) of the Constitution, or any other enumerated power of Federal Parliament. Accordingly, the Act was invalid

5. An assessment of the significance of this case in the wider constitutional framework.  Brought awareness regarding powers of the Parliament and Powers of the judicature, namely in determining whether a crisis exists (Court discretion).

https://www.ruleoflaw.org.au/65th-communist-party-case/...