Australian Communist Party v Commonwealth
| Australian Communist Party v Commonwealth | |
|---|---|
 |
|
| Court | High Court of Australia |
| Full case name | Australian Communist Party v The Commonwealth |
| Decided | 9 March 1951 |
| Citation(s) | [1951] HCA 5, (1951) 83 CLR 1 |
| Case history | |
| Subsequent action(s) | Referendum |
| Case opinions | |
| The Communist Party Dissolution Act 1950 (Cth) held beyond power of the Parliament and invalid. It is not supported by the express incidental power read with the executive power of the Constitution or under an implied nationhood power. The Act does not prescribe any rule of conduct or prohibit specific acts or omissions by way of attack or subversion, but deal directly with bodies and persons named and described. "The stream cannot rise above the source", or, "The Parliament cannot recite itself into power" the Parliament itself purports to determine, or empower the Executive to determine, the very facts upon which the existence of the power depends. | |
| Court membership | |
| Judges sitting | Latham CJ, Dixon, McTiernan, Williams, Webb, Fullagar, and Kitto JJ |
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."
In a general election, held on 10 December 1949, Prime Minister Robert Menzies led a Liberal-Country Party coalition to government pledged to dissolving the Communist Party of Australia. 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) summarised 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 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)."
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