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LITIGATION LIBRARY: Defending the Constitution during the Red Scare

By Perkins Lui | With the defeat of the Axis Powers in World War II, the West became engulfed in the Red Scare, a widespread fear about the rise of Communism. Anti-communist sentiment was probably at its worst with McCarthyism in the United States, in which scores of people were shunned from society for being alleged communist sympathizers based on questionable ‘evidence.’ 


Similar sentiments were fermenting in Australia, where the Menzies government won the Federal election in 1949 after campaigning on a platform to  dissolve the Australian Communist Party. Menzies declared Communists as 'the most unscrupulous opponents of religion, of civilized government, of law and order, of national security’ and that ‘the day has gone . . . for treating communism as a legitimate political philosophy’. Even the Labor Party was opposed to the Communist Party, having issued a ‘Repudiation of the Communist Party’. Labor was however opposed to banning the Communists, arguing that their right to free speech should be protected.


Despite considerable resistance the Communist Party Dissolution Act 1950 (C’th) was enacted by Parliament after Menzies threatened the Labor-controlled Senate with a double dissolution if the bill was not passed. The Act was immediately challenged at the High Court and was ultimately ruled as invalid for being unconstitutional. The case is considered by some academics as ‘undoubtedly one of the High Court’s most important decisions.’


What was authorized by the Act?

  1. Dissolution of the Communist Party and confiscation of the Party’s property without compensation.
  2. ‘Declaration’ of other affiliated organizations that advocated communist principles by the Governor-General in Council (i.e. on advice). This again resulted in their dissolution and confiscation of their property without compensation. (There was concern that even the Labor Party could be ‘declared’ for allegedly advocating objectives similar to that of the Communist Party.)
  3. Imprisonment of individuals for up to five years for knowingly being a member of such unlawful associations. 
  4. ‘Declaration’ of individuals for (potential) engagement in activities prejudicial to national security, resulting in bans from employment by the Commonwealth or taking up union office in certain industries. 

There was a long preamble at the beginning of the Act which asserted that the measures imposed by the Act were necessary for Australia’s defence and security; and the maintenance and execution of the Constitution and laws. Thus, the High Court had to decide (i) whether the validity of the Act depended on the truth of the ‘facts’ asserted in the preamble and (ii) whether the Act was invalid. The High Court by a majority answered ‘No’ to the former and ‘Yes’ to the latter. 


On the first question, the truth of the ‘facts’ asserted in the preamble are irrelevant because regardless, Parliament cannot simply declare a law to be valid. In our system of government with separation of powers, courts rather than Parliament must be the final arbiter of the validity of laws against our constitution. This idea is aptly summed up by Justice Fullagar as ‘a stream cannot rise higher than its source’ and that Parliament cannot declare itself into power. Just because Parliament has the power to legislate in an area, it cannot say that any law falls under that area.


Therefore, the High Court now had to decide the second question of whether the law was valid by virtue of falling within the constitutional powers of the Commonwealth Parliament. The focus was primarily on whether the Act fell within the defence power (s 51(vi) of the Constitution). The defence power is elastic, and is supposed to change depending on whether Australia is at war or in peacetime. Parliament has authority to legislate on issues that have direct and immediate relation to the defence of the Commonwealth, but it is only around wartime that the defence power can be used to deal with more remote issues. Whether the state of affairs justified enlivenment of the more remote aspects of defence power was a matter for courts to ultimately decide. Although Australia was entangled in the Cold War along with other nations, the Court held that the situation was not grave enough to justify the draconian powers granted by the Act. 


The direct impact of the case was that political freedom of association was protected from arbitrary encroachment. The central legacy of the decision is its affirmation of the rule of law - that no one, even Parliament, is above the Constitution and the law. Even at a time of national panic against a supposed ‘enemy’, independent judges fearlessly invalidated unconstitutional legislation enacted by a government with a clear electoral mandate. Although there are deficiencies in our justice system, such as the lack of legally enforceable human rights, courts do provide an important check on the power of the Executive and Parliament.  

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