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The backlash against the Communist Party of Australia (CPA) had started with the 1949 election campaign, but did not truly begin until the Liberal Party came to power. The new Prime Minister, Robert Menzies, had made the election pledge that he would ban the CPA and now he had to make good on that promise. The problem was that trying to ban a 30-year-old, established, political party was not easy, and the Commonwealth Constitution did not offer much help. Previous bans on the CPA had taken place during times of war, when the federal government had the power to dissolve organisations that were thought to pose a threat to Australian security. See image 1

Planning the ban

Plans for the banning of the CPA were first laid out in the Liberal government cabinet in the first weeks of March 1950, but Menzies knew that a lot of research would need to be done in order to make any ban possible. He had promised during the election campaign that the CPA would be declared unlawful and dissolved and that the Attorney-General would also be able to declare other organisations substantially communist. No members of the CPA were to be given a job by the government and they could no longer work as a trade union official in an industrial company. Menzies also wanted a review on the sedition and subversive activities laws, with conviction under those laws meaning that it was impossible to get a government job afterwards. He now had the problem of following through on those promises legally.

Menzies also had the problem of attempting to keep the industrial workers on his side. If he pushed the unions too hard, he ran the risk of industrial instability. If the government pushed too hard, some unions could come out in support of the communists against the federal government. After all Menzies had said publicly that trade union officers would not be exempt from the ban of holding office if they were found to be a communist.

Another major issue was how to identify a communist - considering they were unlikely to own up to it. This resulted in the government resorting to Section 30H of the Commonwealth Crimes Act 1914(Cth), which had been added in 1926 and essentially allowed for someone to be accused of a crime against the Commonwealth on very little evidence. It also meant that the traditional legal stance of 'innocent until proven guilty' was reversed. If you were accused of being a communist you were guilty, unless you could prove otherwise. In other words, the onus of proof had been changed from the accuser to the accused. See image 2

As well as working on how to implement the ban, the government was also very busy trying to justify it, by continuing to stir up public opinion about communism. They continuously stressed the revolutionary ideals of the CPA, its link with world communism and its use of disruptive tactics like industrial strikes. They needed to make the CPA sound as dangerous as possible to Australian society and its constitution.

The bill to ban the Communist Party

The Australian Communist Party Dissolution Bill 1950 (Cth) said the CPA was to be declared an unlawful organisation and that the party's property could be seized and disposed of. Any other organisations that were suspected of being affiliated with the CPA were also to be dissolved. Anyone who carried on the work of the party after it was declared illegal was to be jailed for five years. In addition, as soon as someone was declared to be a communist, they were to be suspended from their job if it were in the federal government, the defence forces, or in the unions. In the words of the Bill, a communist was 'a person who supports or advocates the objectives, policies, teachings, principles or practices of communism, as expounded by Marx and Lenin.'

The Bill was presented to Parliament on 27 April 1950 and was conveniently (for the government) preceded by the publishing of a damning royal commission document detailing the exploits of communists in the State of Victoria. The first reading of the Bill also came amid more security warnings from Menzies and the federal government about the dangers of communism.

The Australian Labor Party (ALP) officially responded to the Bill in May 1950. The Labor leader, Ben Chifley, accused the government of moving towards a totalitarian state. He said that, 'it opens the door for the liar, the perjurer and the pimp to make charges and damn men's reputations and to do so in secret without having to substantiate or prove any charges they might make'. As all the usual processes of law would not be used in these cases, government sources could be withheld in court, so no one would know who had accused them of being a communist. Chifley also said that the new law was not needed - the CPA was declining anyway and there was already enough legislation that gave the government power to deal with the communists. Banning the CPA was a popular policy with the electorate, so Labor said that though they would not oppose the whole bill, they would try to amend the clauses that they thought impeded freedom and justice.

The bill failed on the first attempt to pass it, because the Labor majority in the Senate made too many amendments and the government would not pass it in that form. But when the war in Korea started, it stirred up the situation to the advantage of the government; Menzies could once again stress the dangers of communist expansion and was able to re-introduce the Communist Party Dissolution Bill into the House of Representatives (28 September 1950). By the middle of October the ALP's Federal Executive had finally agreed to let the bill pass in the Senate and it became law on 20 October 1950.

Taking it to the High Court

The CPA and the unions immediately went to the High Court to ask for an injunction against the government from putting any part of the Act into effect. That was refused, but the government was prevented from declaring anyone a communist, or seizing any property until the High Court could conduct a review of it. Despite the High Court challenge, on 20 October the government appointed an official receiver to sell the CPA's property and carried out raids of its offices all over Australia.

The High Court case began on 14 November 1950. It took four months for the court to make its decision that the Communist Party Dissolution Act 1950 (the Act) was unconstitutional. Six of the seven judges ruled against the Act. The decision of the High Court had nothing to do with freedom of speech or other supposedly-democratic principles. Australia is a federation after the model of the United States. The States have complete power to make laws, the Commonwealth (federal) government is only able to make laws in accordance with the Commonwealth Constitution. The major heads of Commonwealth legislative power are listed in section 51 of the Constitution. Subsection vi of section 51(the defence power) gives the Commonwealth government the power to make laws relating to 'The naval and military defence of the Commonwealth and of the several States, and the control of the forces to execute and maintain the laws of the Commonwealth'.

In order to show that this was a defence issue, the Act was written in a way that described the CPA as a great danger to the defence of Australia. In defending the legislation before the High Court, the Commonwealth government argued that its opinion on the threat posed by the CPA justified the legislation. The High Court rejected that approach. The High Court held that the High Court itself had to judge what the facts were. The Commonwealth could not simply recite itself into legislative power by asserting that something was a danger to defence. The question that remained for the High Court, on its own judgement of the facts, was whether there was a sufficient connection between the Act and the defence power. The High Court held that the defence of Australia was not under so great a threat as to justify the use of the defence power to ban the CPA. It must be remembered that this judgement did not affect the States at all. One judge (Justice Fullagar) even wrote that there was nothing preventing the States from banning the CPA in their own jurisdiction. See animation

In April 1951, after the High Court decision, Menzies forced both houses into an election so he could gain control of the Senate and continue to push his anti-communist legislation. During the election, Menzies again laid great stress on the spread of communism and its dangers, pushing the threat of an imminent war to scare people away from voting Labor. He also talked of constitutional reform in order to get the Communist Party Dissolution Act to become law. His strategy worked and the Liberal party now controlled the House and the Senate.

The 1951 referendum

In order to overcome the constitutional hurdle put up by the High Court, Menzies needed to hold a referendum to change the constitution. The 1951 Australian Referendum was held on 22 September 1951. It contained only one question:

'Do you approve of the proposed law for the alteration of the Constitution entitled “Constitution Alteration (Powers to deal with Communists and Communism) 1951"?'

The proposed legislation mentioned in the referendum was an incredibly complicated addition to section 51 of the Commonwealth Constitution. Menzies wanted to add a subsection to section 51 which would effectively grant the government more power and enable the Liberals to declare the CPA illegal through the Communist Party Dissolution Act 1950. The government, however, had not done enough to assure the public that their civil rights would not be undermined by this new piece of legislation and the referendum was defeated. The CPA, therefore, could not be banned by the federal government.

The defeat of the referendum did not mean the end of the hunt for communists within Australian society. If anything, the 1950s saw an increase in fears about communism. In America and Britain the same communist 'witch-hunts' were taking place. A popular saying at the time was 'Reds under the beds', because people were so worried about who might be a communist that they thought communists might be everywhere, waiting for a chance to start a communist revolution. The truth in Australia was that the CPA had been in steady decline for years and its membership would drop even more as the 1950s went on, especially after the Petrov Affair (1954).

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Question 1/5

1. Why did the High Court judges declare the Act unconstitutional?

The communists had paid them to

There was not enough justification under the defence powers

The government had not done enough to convince the judges otherwise

They did not see communism as a threat


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