Australian Constitutional Law Essay Example

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Background of the case: Australian Communist Party v Commonwealth (1951)

The Communist Party of Australia was deemed as the greatest threat to the ruling party known as Liberal-Country Party. The latter party formed the government following the Australian elections that were held in December 1949. The concern for dissolution of the Communist Party was orchestrated by Prime Minister Menzies who beloved that the Liberal Party was opposing the ruling party and was deemed as a threat to the government. Initially, the Liberal Party had stood to oppose the Australian involvement in World War II. Prime Minister Menzies lodged a bill into the House of Representatives on 27th April 1950 which was entitled the ‘Communist Party Dissolution Bill’, and this bill was to seek for the dissolution of Communist Party. According to Prime Minister Menzies, The Communist Party was deemed to be engaging in activities which were revolutionary, and this could lead to a revolt against the government (Anderson). The bill was grounded on nine ‘recitals’ which were aimed at solidifying the case against the Communist Party.

The Bill went through the House of Representative, and it was finally made as an Act. Despite the numerous debates challenging the legality of this bill, Prime Minister Menzies and his accolades ensured the implementation of the Bill leading to the attempt to dissolve the Party and also confiscate its property. The next step followed a High Court Case challenging this Act. The plaintiffs in the case included the Communist Party of Australia, Ralph Siward Gibson and Ernest William Campbell, Australian Railways Union, Edwin William Bulmer, Australian Coal and Shale Employees’ Federation of other bodies. Besides, the respondents, in this case, included the Commonwealth of Australia, Robert Gordon Menzies (Prime Minister), John Armstrong Spicer (Attorney General), William John McKell (Governor-General) and Arnold Victor Richardson (Property Receiver) (Rydon).

Held: The High Court Decision Upheld the Plaintiffs’ perception and reasoning affirming the invalidity of the Act. Six out of the seven Justices ruled that the Act passed by the House of Representatives was invalid. The only dissenting justice was Chief Justice John Latham.

Facts and legal issues of the Case

Recitals for seeking the dissolution of Communist Party

The Communist Party was one of the prominent parties in Australia at the time of passing this Bill. However, the Liberal Party led by Prime Minister Menzies argued that the Communist Party was engaging in activities which were revolutionary. According to the first and second recitals made concerning the bill, the Communist Party was believed to be seeking to establish a revolution against the government through the use of intimidation, force and also engaging in fraudulent activities. Besides, the case purported to be protecting the Australian industries and nationals against the attempted dictatorial leadership and revolution from the Communist Party (Winterton). Prime Minister Menzies argued that the revolutionary activities of the Communist could lead to the decline of economic power and collapse of industries through stoppages of work in industries and retardation of economic production.

Ability of the government to recite itself to power

The other prominent legal question which arose, in this case, was whether the parliament had the ability to recite itself o power. According to the decision of the majority of the judges, the Commonwealth had all the powers to manage and deal with any possible subversion within the borders of the country. The exact location of this power was however contested. The Crimes Act 1914 however provided the requisite powers for the Commonwealth to exercise to determine this power through criminal trials and cases. In the Communist Party Dissolution Act 1950, parliament had gone ahead to declare the Communist Party illegal, and further commenced its dissolution. The passage of this Act had further authorized the executive arm of the government to declare the party, its affiliate, certain organizations and individuals as guilty (Findlay).

According to this legal fact, the validity of any law in Australia relies on the existence of a fact and the fact needs to be a constitutional fact. The case was therefore supposed to determine the existence of any constitutional facts relied upon to declare the party as an illegal entity. However, this did not happen, and the passage of this Act mainly depended on the nine recitals fronted by the Prime Minister. Therefore, the Court could not be allowed within the ambits of the constitution to concede the principle which argues on whether the parliament can recite itself to power. Therefore, the legal question, in this case, was whether the judiciary could ratify the action of the Parliament which was deemed as non-constitutional.

Reasoning of the High Court

The Recitals

The recitals formed a major portion of the bill presented by the Prime minister to the House of Representatives. The nine recitals were aimed at explaining the rationale and justification of the bill regarding the proposal to dissolve the Communist Party and further confiscate its property. The passage of the Communist Party Dissolution Act 1950 was reliably made in the spirit of the nine recitals made by the Prime minister. The majority of the judges, in this case, argues that the recitals could not be used to explain and describe the true security position of Australia reliably. This was deemed as an attempt by the Parliament to talk itself into power. According to this reasoning, the courts normally determines the factual situations on the ground to make a decision and do not necessarily look at the situations deemed in recitals (Boughton).

According to the reasoning fronted by the majority of the judges, in this case, the parliament assumed the powers and the roles of the judicature of declaring a person, an organization or an entity such as a political party legal or otherwise. The parliament went ahead and declared the Communist Party and its affiliates as illegal, and this was deemed as assuming the role of the courts which are legally mandated to perform this legal function. Therefore, the action of the parliament was declared as invalid and not constitutionally binding.

The Defense Power

The defence power is a legal role of the government provided for in the Constitution. It’s usually deemed as elastic implying that it waxes and wanes all the time. The defence power usually practiced into two different aspects. The primary aspects are usually directly related to defences such as the use of conscription and fortifications. On the other hand, the secondary aspects concerned the wide application of defence powers which are indirectly fronted especially in times of crisis. It’s the extension of power, and this only comes when the county is in crisis.

According to the present case, the Bill sought to invoke the secondary aspect of the defence power. In this reasoning, the bill sought to use the wide application of the defence power to dissolve the Communist Political Party for its alleged engagement into revolutionary activities. Besides, the bill sought to invoke the wide application of the defence powers of the government to curtail several organizations and individuals believed to be affiliates of this political party. The majority of the judges reasoned that there was absolutely no reason to apply the defence powers. The reasoning asserted that the primary power protects against external threats and the exercise of this requires the application of the secondary power. Therefore, the peace in Australia during this period never required the application of the defence power (Detmold).

Exclusion of the Judicial Review

The other legal reasoning made which informed the decision of the courts concerned the sections of the Act which attempted to mute judicial reviews on powers of the Governor General. The discretions of the Governor General are usually subjected to judicial reviews to determine their legality or otherwise since this is a public office. The Act reasoned that this office need not be subjected to these reviews. The High Court, however, invalidated this.

Reasoning of the minority judge (Latham CJ)

Latham was the only dissenting judge in this case. He argued that the Act was legal and valid. His argued were premised on two legal grounds. The first ground concerned the importance of the importance of the defence legislation. Latham asserted that the defence policy is vital and if it is not properly exercised, then it will easily preclude the executive of other ancillary powers by the Commonwealth.

The other reasoning fronted by Latham regards the fact that the defence policy is a political consideration and not entirely legal proposition. According to his reasoning, the judge argued that the policy could not be entirely proven through legal consideration on the admissible facts in the court and that other factors ought to be considered in considering the defence policy. He further argued that the motives of the Communist Party were regarded as threats to the security of the country and therefore the need to dissolve the party through the exercise of defence powers (Head).

My opinion on the reasoning of the judges on the case

The majority of the judges in the High court considered the Act to be invalid and not legal. This is an appropriate and persuasive decision made by these courts. The Judicature usually considers the legal side of a case and not other factors such as the political aspects of any case. In the present case, the Prime Minister through his dominant Liberal Party sought to exercise their powers to intimidate and dissolve the strongest opposition party on the grounds of threats to national authority. In their submission, the Liberal Party attempted to justify the grounds that formed the security threats claims as purported in the recitals. Besides, the Australian constitutions provide for the legal path of the courts aimed at solving and determining issues regarding such criminal activities such as attempting a revolt against the government (Webb). This avenue was however not considered by the Prime Minister.

Therefore, the decision by the High Court (majority judges) to invalidate the Bill is justified as a step towards strengthening the constitutional order and the rule of law. It is also a significant stride towards protecting the minority in the country from restrictive and prohibitive political actions such as dissolution and confiscation of property on the unjustified ground.

Significance of the case towards the development of constitutional law

The case is a perfect example of a scenario in which the courts perform their duties of upholding the Constitution and protecting the legality of the constitution and the masses within the borders of a country. In many cases, the ruling government tends to misuse their executive powers to undermine the Judicature and perpetuate their intended legal activities. The decision by the High Court Judges to invalidate the Act is a precedent set to force a democratically elected government to obey the Constitution at all costs. The case, therefore, successes in protecting the constitutional order and also exercising the legal powers to hear and determine the plight of the minority in the country.

Political Significance of the case

This case is regarded as a major contribution to the political pillar of a country. The institution of any government stems from the political activities which normally rely on the results generated out of an election. The dominant political party is sometimes usurping its political authority and powers to intimidate other political parties and organizations within the country such as compelling them into dissolution. This case separated between the political and the legal powers within a country. It, therefore, contributes to the separation of these two powers exercisable by any government and defines what is acceptable and that regarded as invalid in the country.


One of the most outstanding cases in the Australian jurisprudence and beyond is known as Australian Communist Party v Commonwealth (1951). This case provides a precedence regarding the powers of the Parliament and those of the judicature and to what extent the latter powers ride over the former. This paper focused on explaining the case and also determining the legal reasoning behind the High Court ruling on the case. Besides, the paper discussed the implication, significance and the justification of the case in regards to the legal and political powers in a country.

Works Cited

Anderson, R. «Australian Communist Party v The Commonwealth”(1951).» University of Queensland Law Journal 1: 34.

Boughton, Bob. «The Communist Party of Australia’s Involvement in the Struggle for Aboriginal and Torres Strait Islander Peoples’ Rights 1920-19701.» (1999).

Detmold, Michael J. The Australian Commonwealth: A Fundamental Analysis of its Constitution. Taylor & Francis, 1985.

Findlay, Mark, Stephen Odgers, and Stanley Meng Heong Yeo. Australian criminal justice. Melbourne: Oxford University Press, 1994.

Head, Michael. «Counter-terrorism laws: A threat to political freedom, civil liberties and constitutional rights.» Melb. UL Rev. 26 (2002): 666.

Rydon, Joan. «Electoral methods and the Australian Party system, 1910–1951.» Australian Journal of Politics & History 2.1 (1956): 68-83.

Webb, Leicester Chisholm. Communism and democracy in Australia: A Survey of the 1951 Referendum. Published for the Australian National University [by] FW Cheshire, 1954.

Winterton, George. «The Significance of the Communist Party Case.» Melb. UL Rev. 18 (1991): 630.