Just Cases | Season 4 | Episode 1 | A country divided

A newly-elected Australian government is concerned about a growing Communist influence in Australia. The scene is set for a major High Court case.

Court case:

Australian Communist Party v Commonwealth ("Communist Party case") [1951] HCA 5; (1951) 83 CLR 1 (9 March 1951)

Read judgment:

http://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/1951/5.html

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Transcript | Just Cases | Season 4 | Episode 1 | A country divided

[00:00:00] James Pattison: A country divided between left and right families turning against each other depending on which party they vote for. Social and democratic institutions under attack. Could democracy itself be in a fight for survival? It sounds a lot like the United States in 2020, but it's not the same. Is Australia.

[00:00:24] This is just cases.

[00:00:37] Movietone News: Look at Australia, have great industries, unlimited possibilities in this age of machine, Marvel, democracy, government of the people by the people for the people. Yet, in recent years, a sinister force has appeared in our world that sinister force is communism.

[00:00:59] Professor Melissa Castan: It means. Slavery.

[00:01:01] Today, we were rewinding to 1950.

[00:01:03] The entire world is rebuilding after the deadliest war in human history. A new era is dawning, and people across the political divide are thinking perhaps we can rebuild society in a better way. And so there's a fork in the road. Democracy and communism are in a fight. For global dominance,

[00:01:20] James Pattison: enter the Menzies government newly elected and concerned about a growing communist influence in Australia,

[00:01:28] Movietone News 2: but Australia knows and so do the communists that the closest concert between the United States and the British Commonwealth is vital to the common defense.

[00:01:40] We will work inces. To strengthen this great association just as the communist powers and their overseas friends will work incessantly to divide and destroy it.

[00:01:58] James Pattison: The scene is set for a major high court case and to discuss the case. We're joined today by public law expert, Dr. Maria O'Sullivan. Hi Maria.

[00:02:07] Dr Maria O'Sullivan: Hello everyone. Hello, James and Melissa.

[00:02:10] Professor Melissa Castan: Maria, can you give us a bit of a sense of the mood in the Australian community about communism at the time of this case?

[00:02:15] Dr Maria O'Sullivan: Yes. Well, I think internationally a lot of people would have been aware of what was happening in the United States, and of course with the McCarthy trials and. The, the Cold War influence. And I guess remember we had a lot of American soldiers in Australia during World War ii. Um, so perhaps I think we had an eye to the United States as we still do now.

[00:02:39] So that's part of the picture. But then domestically, I think we had things like the 1949 coal strike. We don't really think about class divisions in Australia, but I do feel. In that era that there were serious class divisions. And as you say, there was one class, the, um, maybe the upper class that wanted to stifle the unions.

[00:03:01] And you had the, the working class who had engaged in this, this, this 1949 strike and led by the Labor Party wanted to enforce their rights in the workplace. And of course that all comes also from the the war experience, which I think opened people's eyes. To various things, including women's rights, of course, because women were, were more empowered in a way during that era, and then had to step back when men came back from, uh, overseas.

[00:03:30] Professor Melissa Castan: And I guess the Australian Communist Party must have been, I understood as a real threat to the Australian government and the Australian way of government. Um, given that it's actually advocating for a complete overthrow of the existing systems, um, and replacement with communist systems.

[00:03:46] Dr Maria O'Sullivan: Yes, because it, it challenges power, it challenges the, um, the, the power of industry and of government.

[00:03:54] And then we can sort of relate it to the current environment. We now have an argument, you know, that, uh, 1% of the population own all the wealth that we have, the power of industry that, you know, even if it's. Google or Facebook that dictates policies to the government. We've got the Murdoch press, so we've got a lot of monopolized power and um, so even though it's a little bit different now, the same sort of dynamics are still in place that were in place in 1950.

[00:04:24] This idea that society should be more egalitarian and that government power should be more dispersed. It shouldn't be just, um, top down.

[00:04:34] James Pattison: So it's 1950. And the conservative Menzies government, uh, has been in power for about a year. And one of the things they went to the election with was a proposal to ban the entire Communist party.

[00:04:47] So Parliament passes a law, uh, what is this act called?

[00:04:52] Dr Maria O'Sullivan: It's called the Communist Party Dissolution Act of 1950 and, um, dissolved the Australian Communist Party, confiscated all its property. And that's serious enough as it is, but then it proposed to also. Declare other affiliated organizations to be unlawful.

[00:05:11] This included trade unions, certain newspapers and so forth. So as a person who's interested in public law and human rights, as we all should be, that really strikes at the heart of democracy, particularly newspapers. And again, if I could relate this to current, um, news stories and current legal issues, we've seen, you know, a crack.

[00:05:33] Down by the Australian Federal Police on a certain journalist last year. Um, we've got this concept of media freedom. So I think again, though, the, the problem was that it wasn't just the disillusion of the Communist Party, but also affiliated organizations. And I think that the, the width of that, um. The legislation was highly concerning.

[00:05:56] And um, not only did it set out all these, you know, um, enforcement provisions about rendering organizations unlawful, but it had all these recitals, so it had these nine paragraphs, and that's quite unusual to have what we call introductory paragraphs. I mean, legislation will normally have an objects clause about what its purpose is, but here it had things like the Australian Communist Party.

[00:06:23] Engages in activities, um, designed to lead to revolution. So it had what I would call very political terms in the preamble to the act, which is highly controversial.

[00:06:35] Professor Melissa Castan: Maria, on the same day as the Governor General signed the bill into law. The act was appealed in the high court. Who appealed it?

[00:06:42] Dr Maria O'Sullivan: Uh, well, obviously the Australian Communist Party itself, but also various trade unions from around the country, and also a couple of editors from newspapers, those organizations that were deemed to be communist affiliated.

[00:06:57] Um, and interestingly, the, the lawyers involved in the case included, um, the elite, if you like, of the Sydney and Melbourne legal communities. Um, and three of the Commonwealth lawyers for the case were later appointed to the high court. So it was all very much both legally, um, controversial, but also it, it garnered a lot of attention because of the, the types of lawyers that were involved and obviously the very controversial nature of the political question.

[00:07:26] And

[00:07:26] James Pattison: one of the lawyers for the plaintiffs was himself a former high court justice that's, uh, doc Everett. He was also at the time. A member of Parliament and went on to become the Australian, a future leader of the Australian Labor Party. So this was really, I mean, this is like an all-star cast. It sounds very difficult to imagine.

[00:07:46] Dr Maria O'Sullivan: Absolutely. Mm.

[00:07:46] James Pattison: So what exactly did the plaintiffs argue?

[00:07:49] Dr Maria O'Sullivan: Well, they really focused on those recitals or preamble that I was talking about. So as I said, um, the preamble said that the Australian Communist Party is designed to overthrow the government. Um, and I talked about a dictatorship. So it was all very, um, you know, uh, revolutionary in tone and political.

[00:08:09] It talked about the fact that the Communist party were going to use force and violence. They mentioned the, um, the fact that certain industries which are vital to the security and defense of Australia included the coal mining industry. And I mentioned that in the recital because, um. They were trying to get the, well Parliament was trying to recite itself into power, and this is really what the plaintiffs looked at.

[00:08:36] The fact that the Communist, uh, disillusion Act said in its preamble that it was necessary for the defense of Australia to dissolve the Communist Party. So let's think about that for a moment. We've got a post-World War II Act. The war. The war had finished, but yet the act was trying to use the defense power of the Constitution, and there is a defense power to do something very political.

[00:09:04] So that's really what the P is focused on.

[00:09:07] James Pattison: Now at this point, I think it's very important, Maria, um, to get extremely serious and, you know, we tend to be very serious on just cases, uh, and introduce this little jingle.

[00:09:23] So this is a little device that we have on just cases when things start to get just. That little bit too legalistic. So if at any, if at any point you hear that jingle, uh, that will be usually me. Melissa never hits it for obvious reasons 'cause she's actually a law expert, uh, that there will be a, a note.

[00:09:43] That, uh, poor old James has missed something and we need to bring it back a step or two.

[00:09:49] Professor Melissa Castan: Yeah,

[00:09:49] James Pattison: so a, as far as I can understand it, the two issues in dispute, just sort of in summary, were basically the Communist party dissolution act would be valid if the facts that they asserted within the preamble were found to be true.

[00:10:04] Is that right? In that the preamble was talking about the threat that was posed by communism to Australian democracy, that that threat was real?

[00:10:12] Dr Maria O'Sullivan: Absolutely. Yeah. And it catch in terms of the, you know, the defense that it was vital to the defense of Australia that we dissolve the Communist Party. Yeah. So, yeah.

[00:10:24] There was an argument about whether those facts were true. And as I outlined earlier, they were very controversial talking about the, the fact that it was a revolution. It was almost like sedition, if, if the listeners know about sort of treason and sedition, that's how the preamble was couched. And so, um.

[00:10:43] There was an argument about that, but really the defense power, that's the provision that really won the case for the plaintiffs rather than whether those facts in the preamble were true.

[00:10:54] James Pattison: So you've, you've mentioned the second and most important issue in the case, which was about this defense power. Can you tell us a bit more about that argument about the defense power and also what's meant by this term that we see come up in this case and in constitutional law, which is heads of power.

[00:11:11] Dr Maria O'Sullivan: If we can just go big, big picture here. We don't have a federal charter of right in our constitution, in our Australian Commonwealth constitution. Obviously we had state constitutions. I'm just talking federally here, so that's a gap. Compared to, uh, in the United States, which has obviously a very strong bill of rights, we don't have that.

[00:11:32] So the case could never be argued purely on a rights basis that it's, you know, or it's, um, that it's limiting someone's freedom of expression to do this. So the only, the only real thing apart. From the freedom of religion and a couple of implied rights in our constitution is this heads of power issue.

[00:11:53] So we've got all these heads of power, immigration, um, defense, as I said, and defense was the basis, um, of this, this case. That's really all we have. And so because it's all we have to constrain the government, the high court takes those heads of power, if you like, quite seriously. And so what the high court said is.

[00:12:14] You can't just say in an act, oh, well, dissolving the Communist Party is necessary for the defense of Australia and therefore it's constitutional. No, the high court will always have the ability to look for itself. Whether dis dissolution of the Communist Party is vital to Australia's defense.

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[00:13:14] Professor Melissa Castan: So I guess this is a really clear example of the high court asserting its constitutional job or the constitutional task of assessing the federal Parliament's laws for being within power. That they've actually complied with the structures and the limitations that are in the Commonwealth Constitu.

[00:13:32] Dr Maria O'Sullivan: Exactly, and, and again, this resonates through the entire, I guess, jurisprudence at the high court. Even in 2011, there was a case involving an asylum seeker swap with Malaysia, and the Australian government at the time really wanted the high court to leave it alone and said, you know, we've got, we, we've been elected on a platform of asylum seeking or turning back the boats.

[00:13:58] You need to leave us alone to implement that. And, and that's the same sort of tension that's playing out here. And really they're, they're talking about the protection of the country Parliament and the government are saying Where best place to decide what's best for the country and the high court should leave us alone.

[00:14:16] This idea that Parliament being democratic has a wide power to do what, it's what's necessary to protect our nation. And the high court can only act in a very limited way. It's not elected, so it can only find legal errors or, um. Act very conservatively if you like to protect the Constitution, but it can't if you like, overthrow what the Parliament has said.

[00:14:43] And so there's a bit of a tension here between parliament perceiving itself as the most democratic institution and saying to the high court, leave us alone. And then the high court, as the rule of law institutions say, no, you can't recite yourself into power.

[00:15:00] James Pattison: It sort of sounds like the government is saying.

[00:15:02] Um, we're in a position to decide what's best for the country, and the high court is saying, well, we know what's best for the maintenance of our constitution.

[00:15:10] Dr Maria O'Sullivan: Yes. And. Really, I mean, we could, we could talk all day about the proper role of government, but in fact, it's the Commonwealth. It's obviously, we have the executive government, so the Menzies government is a political organization, but then the Commonwealth as a whole has to serve the Constitution and.

[00:15:30] It's really only the high court who can be the final arbiter of that. So it's a complex issue about, I guess the institutional, um, sharing of power. And, and again, I'm sure in subsequent cases, you know, the executive government, the government of the day, being really unhappy with some of the judgements the high court has handed down.

[00:15:53] Definitely. The Communist Party case is not a rights based issue about, okay, well, you know, uh, we have a right to freedom of expression and association. No, it was very much, the Constitution sets out very distinctive heads of power, and the dissolution of the Communist Party doesn't constitute a defense issue.

[00:16:15] Professor Melissa Castan: So in the end, really the high court took what we now understand to be quite a conventional approach, to quite a radical act. That is, they said. Does this act actually come within the defense power? You know, does this, does this articulation of these, um, limitations come within what we understand the defense power to be today?

[00:16:33] Today in 1950? No, it doesn't. And you can't just call something defense 'cause you feel like making it defense the same way as you can't just call that tree out there a lighthouse. So you bring it under the lighthouse power. And so if it's not defense. It doesn't have a head of power to support it and therefore it falls down.

[00:16:49] Dr Maria O'Sullivan: Yes, and and even though it was decided on this somewhat narrow, I would say, issue about the, the head of power being defense, I think possibly. The judges would've been informed, obviously, by the political nature and the rights based approach. By that I mean yes, defense normally means, uh uh, trying to defend yourself from outside forces, and so anything that involves treason or sedition and involves limitations.

[00:17:19] Freedom of association, et cetera, um, is going to be carefully scrutinized.

[00:17:30] James Pattison: Maria, Melissa mentioned a moment ago, uh, something about a lighthouse and a tree. Um, I told you I asked the silly questions, but that actually that was a reference to, uh, an actual, a judgment in this case. Uh, what exactly. Is the significance of the lighthouse and the tree?

[00:17:48] Dr Maria O'Sullivan: Um, well, justice Fuller talked about the fact that a stream cannot rise higher than its source.

[00:17:54] So what he means there is that a valid, the validity of a law, um, can't be made to depend. On the opinion of the lawmaker, the parliament, as I said, can't recite itself in the power, so it can't say this is a constitutionally valid law. And that's essentially what they said in the preamble to, to summarize it very simply, they basically said to the high court in those preambles, this is a matter which is constitutionally veed under the defense power.

[00:18:23] So that's the first thing. And then full August said, A power to make laws with respect to lighthouses doesn't authorize the making of the law with respect to anything which is in the opinion of the maker, A lighthouse. So, as Melissa said, you can't look outside and say, oh, there's a tree. I wanna dissolve that tree and just say, well, I declare that to be a lighthouse, to bring it within the lighthouse power.

[00:18:50] Uh, so similarly in those set of nine recitals or preambles in the Communist party dissolution case. The Parliament could not say that communism was a threat to defense and then expect the high court to accept that.

[00:19:07] Professor Melissa Castan: So Maria, the Menzies government lost its argument before the high court that it, that its Act was valid.

[00:19:12] And so then they couldn't dissolve the Communist party by use of this act. What did they do after that? Did the communist party. Continue to exist or did it get dissolved in some way?

[00:19:22] Dr Maria O'Sullivan: Uh, no. It did, uh, continue to exist and in 1951, um, prime Minister Menzies tried to amend the constitution to permit the parliament to make these laws in respect to communism.

[00:19:37] Uh, so that was a 1951 referendum. Now, if that was passed it, it would've allowed the bill to go forward to ban the Communist Party, but that referendum did not. Succeed, and that I guess really goes back to what we were saying before about this notion that Parliament should have this wide power because it's democratically elected and it's representative of the people, and in fact, the failure of the 1951 referendum.

[00:20:06] To do what the government wanted to do to ban the Communist Party really shows perhaps I think that they're out of touch with what the populace wanted and the population of Australia clearly did not think that banning the Communist Party was a good thing.

[00:20:22] James Pattison: This season on just cases where we are looking at the norms and institutions in our society that we really.

[00:20:28] Take for granted and seeing whether they're still relevant and how they're holding up in 2020. Looking at this particular case, which took place 70 years ago now, does it bring up some issues that are still relevant and that we can learn from?

[00:20:41] Dr Maria O'Sullivan: Absolutely. The, the high court in the, in this case, the Communist Party case, was really bringing the executive government to account, and we talk about that being a protector of the rule of law.

[00:20:54] Now listeners have to understand that the rule of law is a fundamental concept both in Australia and in many other similar jurisdictions. So we've got the high court as an institutional barrier to overreaching executive power, but then also we need to look at things like transparency, accountability more broadly in our democracy.

[00:21:17] And if, if I can speak to some problematic issues, there've been. Um, issues with whistle blowing, um, raids on media journalists. We've got this problem with the wide power of a o and also the idea that certain immigration decisions, uh, matters of national security and therefore shouldn't be questioned.

[00:21:41] And again, there's a lot of secrecy. May, perhaps quite rightly in things like a o decisions, but I would say that things like immigration decisions should be more transparent. So the, the second thing I wanna say is that once you classify a certain set of individuals or a group within society as treasonous or, uh, a threat to democracy or defense.

[00:22:06] Um, this idea of sedition, that's a very slippery slope and it's very dangerous because once you categorize one group as dangerous to democracy or somehow treasonous, there's an inclination I think of the executive government to open up that to further group. And we can see that internationally as well.

[00:22:26] What's happening in Hong Kong and Thailand, um, all over the world where protests are being, um, targeted, where people are being surveyed and put into preventative detention. This all, I guess, has a, a global resonance for us as individuals and groups about protecting our institutions in Australia, but also being very vigilant about what's happening in areas like defense, a EO, whistle blowing, and those other areas.

[00:22:58] James Pattison: It's such a fascinating case in a fascinating time. Maria, thanks so much for speaking to just Cases today.

[00:23:05] Dr Maria O'Sullivan: You're welcome.

[00:23:07] James Pattison: Thanks so much for listening to Just Cases. And Melissa, uh, great to be back with you after such a long period of time in isolation.

[00:23:13] Professor Melissa Castan: James, I've missed you so badly.

[00:23:15] James Pattison: It sounded so sincere.

[00:23:16] Uh, if you like just cases, make sure you follow us on Twitter. Uh, our handle is just Case's show and also we absolutely love a review if you listen to us on. Apple Podcasts. Please leave us a review. Five star ratings we love. And no matter what podcast platform you listen on, we really value you recommending us to your friends and family.

[00:23:38] Uh, if they're law nerds like ourselves, reach out. Guys.

[00:23:41] Professor Melissa Castan: We are lonely. We need some attention,

[00:23:44] James Pattison: and we're totally open to any ideas that you have for upcoming episodes as well. Just get in touch with us, my Twitter. We'll see you next time.

[00:23:55] Professor Melissa Castan: James, when we left everyone at the end of last season, we thought we'd catch up with him in a couple of months, but what happened?

[00:24:01] James Pattison: Yeah, yeah. Uh, let's see. There was something began with letter C and ended in Ovid, and we were getting some feedback on Twitter and also some reviews just asking us. Where have you gone?

[00:24:12] Uh, so we're back. It's really nice to be back and so to our listeners, thanks for all your support and we're looking forward to having another season. We can explore some really cool court cases with you.

[00:24:21] Professor Melissa Castan: Yeah. Thanks for waiting for us.