Symposium: A Stream Cannot Rise Higher than its Source: Australia’s landmark Communist Party Case

Peta Stephenson

Queensland University of Technology

In 1951, during the height of Cold War hysteria in Australia, the High Court of Australia thwarted the government’s plan to ban the Australian Communist Party in the decision of Australian Communist Party v Commonwealth (1951) 83 CLR 1 (“the Communist Party Case”). The case has been heralded as a triumph for Australian constitutionalism and continues to stand out as one of the most significant – even iconic – decisions ever handed down by the High Court.

The Communist Party Case has acquired the status of a constitutional landmark because it declared a fundamental principle upon which Australian democracy is based – that the elected government is subject to the law of the Constitution. The Communist Party Case afforded the High Court an opportunity to assert its supremacy over the legislative and executive branches of government in matters concerning the interpretation of the Constitution and reaffirmed the High Court’s role as the ultimate arbiter of constitutional validity in Australia. It is this feature of the case that has invited comparisons with the famous decision of the US Supreme Court in Marbury v Madison 5 US (1 Cranch) 137 (1803).

At the time the Communist Party Case was decided, the political climate in Australia was one characterised by fear about the threat posed by communism to Australia’s institutions of government and the heightened prospect of conflict with the USSR. A conservative Liberal-Country coalition government, led by Prime Minister Robert Menzies, had recently been elected and had pledged to outlaw communism in Australia. Pursuant to this pledge, the Communist Party Dissolution Act 1950 (Cth) (“the Act”) became law on 20 October 1950.

The Act purported to dissolve the Australian Communist Party and confiscate its property. It gave the Governor-General an unfettered discretion to declare other organisations, such as trade unions, as unlawful if they were affiliated or associated with communism. Individuals could also be declared as Communists by the Governor-General and prohibited from holding office in the Australian Public Service or any industry declared to be “vital” to Australia’s national interest.

The Act was prefaced with a Preamble that contained nine opening recitals. These recitals declared certain “facts”, such as:

“[T]he Australian Communist Party, in accordance with the basic theory of communism, as expounded by Marx and Lenin, engages in activities or operations designed to assist or accelerate the coming of a revolutionary situation …”

and:

“[T]he Australian Communist Party also engages in activities or operations designed to bring about the overthrow or dislocation of the established system of government in Australia …”

The Parliament had also declared in the recitals that the measures in the Act were “necessary, for the security and defence of Australia and for the execution and maintenance of the Constitution and of the laws of the Commonwealth”.

In Australia, the legislative power of the Parliament is confined to subject matters, enumerated in sections 51, 52 and 122 of the Constitution. In this context, the Preamble was a remarkable feature of the Act. The Parliament had purported to establish in the recitals that the Act was validly enacted under the defence power in section 51(vi) or the incidental power to execute and maintain the Constitution in sections 51(xxxix) and 61 and effectively preclude any judicial determination to the contrary.

Just hours after the Act entered into force, the Australian Communist Party, together with a number of unions and union officials, challenged the Act in the High Court. In a 6:1 decision, the majority of the High Court of Australia (consisting of Justices Dixon, McTiernan, Williams, Webb, Fullagar and Kitto JJ) struck down the Act in its entirety on the basis that it exceeded the constitutional limits on the powers of the Parliament. 

The majority in the Communist Party Case rejected the attempt by the Parliament to “recite itself” into power. The Court declared that under the Australian Constitution, it was the role of the judiciary to conclusively determine the constitutional validity of laws passed by the Parliament. Accordingly, if there were any material facts relevant to its consideration of whether there was a sufficient connection between the Act and a subject matter of legislative power, those facts could not simply be declared by the Parliament but needed to be judicially considered by the Court. Put simply, the majority was not willing to accept the Parliament’s assertion in the recitals that the Act was necessary for national defence, or for the execution and maintenance of the Constitution, and therefore a valid expression of its legislative power. The High Court needed to be satisfied that this was actually the case.  

Moreover, the majority was not willing to accept that the Parliament could confer unreviewable discretion on the Governor-General to declare organisations and individuals as unlawful during a time of relative peace. It was significant for the majority that legal consequences attached to the exercise of this discretion. Organisations could be dissolved and their property confiscated, and individuals could be barred from certain types of employment, if the Governor-General was of the opinion that they were prejudicial to national security.

Justice Fullagar (at 258) summarised this problem with the Act where he observed that:

“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.”

The Court was not satisfied that the Act was actually a law with respect to defence, or any of the other subject matters in the Constitution. It did not regulate or proscribe conduct that posed a threat to Australia’s national security. It was targeted at specific organisations and individuals. The only connection between the Act and the heads of legislative power in the Constitution was the opinion of the Governor-General that the organisation or individual met the “vague or intangible conception” of being prejudicial to national security or the exercise of executive power (per Dixon J at 187). The Act, therefore, breached the fundamental constitutional doctrine that “a stream cannot rise higher than its source” (per Fullagar J at 258) and was declared to be invalid.

In the Communist Party Case, the High Court fulfilled its responsibility in declaring and upholding the rule of law, by enforcing the limits imposed by the Constitution on the powers of the legislative and executive branches of government. In striking down the Act in its entirety, the High Court asserted its role as the ultimate arbiter of  constitutional validity in Australia.

The primacy of the rule of law in Australia’s democratic system of government was also evident in the way that the government responded to and respected the High Court’s decision in the Communist Party Case. Although the High Court had delivered a significant blow to the government’s policy agenda by invalidating the Act, Menzies accepted that the High Court had fulfilled its institutional role in enforcing the limits on legislative power imposed by the Constitution. He did not dispute the High Court’s decision, electing instead to hold a referendum to amend the Constitution, in order to give the Parliament power to legislate with respect to communism. The referendum ultimately failed after it was narrowly rejected by national voters and the majority of Australian states. However, by responding to the High Court’s decision in this way, the government acknowledged that it was subject to the law of the Constitution, as declared by the High Court.

In his judgment in the Communist Party Case, Dixon J (at 193) famously proclaimed that “the rule of law forms an assumption of the Constitution”. The decision in the Communist Party Case, and the government’s response to it, reaffirmed that the government is subject to limits on the exercise of its legislative and executive powers which are imposed by the Constitution and enforced by the courts. It is the declaration of this fundamental constitutional principle that elevates the decision to the status of a constitutional landmark in Australia.

One only has to think of what would have happened had the majority upheld the Act to fully appreciate the significance of the decision. Not only would the Communist Party have been banned in Australia, but certain trade unions would have been dissolved, and in the absence of any national protection of rights in Australia, similar declarations could have been made of other organisations and individuals. By refusing to concede power to the government to punish individuals and organisations for their political beliefs and associations, the High Court acted as a constitutional guardian. While the Communist Party Case was not primarily about civil liberties, it demonstrated the vital role that the High Court of Australia plays in securing the rights and freedoms of individuals through the independent and impartial enforcement of the rule of law.

Peta Stephenson is a Lecturer at the Queensland University of Technology, School of Law.

Suggested citation: Peta Stephenson, “A Stream Cannot Rise Higher than its Source: Australia’s landmark Communist Party Case” IACL-IADC Blog (19 December 2019) https://blog-iacl-aidc.org/constitutional-landmark-judgments-in-the-commonwealth/2019/12/19/a-stream-cannot-rise-higher-than-its-source-australias-landmark-communist-party-case