Common(wealth) Knowledge #42: Why Australia can't ban political parties
More than 8 decades on from Menzies first attempting to ban the Communist Party of Australia.
Victorian Senator Ralph Babet, the only member of the United Australia Party to sit in the Australian Parliament, has had a complex relationship with Twitter since being elected last year, deactivating his account on several occasions.
Recently, he suggested on the social media site that communism should be banned in Australia. Unfortunately for the Senator, this has already been tried before, and failed. It would be even less likely to succeed again.
Prime Minister Robert Menzies tried, and failed, on five separate occasions to ban the Communist Party of Australia (known from 1944 until 1951 as the Australian Communist Party) in the span of eleven years.
The first attempt was done prior to Nazi Germany invading the Soviet Union, and the other four were done in the context of the Cold War. All four were politically controversial, even when anti-communist sentiment was at an all-time high. If any of these attempts were repeated today, from a purely political perspective they would be virtually impossible to pull off. And there isn’t even a definable communist party to ban, and that’s putting aside the fact that the High Court of Australia wouldn’t uphold the legality of any of them today either.
After the start of World War II, Menzies’ government passed the National Security Act 1939 (Cth), and the following year issued the National Security (Subversive Organisations) Regulation 1940 (Cth) under the NSA to outlaw the Communist Party and occupied the property of the Jehovah’s Witnesses in Adelaide. Jehovah’s Witnesses were opposed to the war and the draft, and so the government saw them as a threat to the “efficient prosecution of the war.” The Commonwealth government said that communist revolutionaries also posed a threat because, at the time, the Soviet Union and Nazi Germany had signed a non-aggression pact to promise that they wouldn’t attack each other.
In 1943, the High Court overturned the legislation, which had been passed under the government’s defence power, contained in Section 51(vi) of the Australian Constitution. In the Jehovah’s Witnesses Case (1943), they ruled that it was beyond the scope of the defence power. For example, Justice Williams said that although the “abnormal conditions” of war give the defence power a greater scope during times of war, it did not extend to “such a complete destruction of the personal and proprietary rights” of any organisation, especially because interfering with their property rights would mean that the Commonwealth government would be overruling South Australia’s property laws.
Although that case didn’t involve the Communist Party, it invalidated the legislation that had been applied to the Party. But it didn’t matter, because in 1942 the new Labor government of John Curtin had lifted the ban, as Nazi Germany was now at war with the Soviet Union, making the Soviet Union an Australian ally.
Menzies, after reforming the United Australia Party into the Liberal Party, was returned to power in 1949. He wasted little time in going after the Communist Party again, using the Cold War as justification. He submitted the Communist Party Dissolution Bill 1950 (Cth) to Parliament, which would again ban the Communist Party and seize their property. He argued that communism was inherently destructive because it belonged to a revolutionary school of thought that intended to “seize power and establish a dictatorship of the proletariat.” In addition, he suggested that the Soviet Union would direct the Communist Party to carry out seditious activity to disrupt the lives of ordinary Australians, including through treason and industrial sabotage. There was to be no compensation given for the property seized, and any associated organisations could also be outlawed by the Governor-General if they posed a similar threat.
Although the Liberals, working with the Country Party, had a landslide majority in the lower house, gaining 48 seats, their success was not repeated in the Senate. As not all of the Senate seats were up for election, and Labor held many of those seats, they were able to hang onto a majority there, with 34 of 60 seats. Menzies refused to accept enough of Labor’s proposed amendments to mean that Labor wouldn’t support the bill in the Senate.
A few months later, after Menzies went back to the drawing board, he was able to pass a reformed version of the same bill. Labor still wouldn’t accept it, but Menzies told Labor that if they wouldn’t vote for it, he’d tell the Governor-General to call for a double-dissolution election, where all 60 Senate seats would be up for election. This forced Labor to concede.
The Communist Party and ten unions challenged this law, in what became the Communist Party Case (1951). With a 6:1 majority, with only Chief Justice Latham dissenting, the law was overturned.
The court had recognised a broader scope for the defence power in times of war in the Jehovah’s Witnesses Case. But, with the exception of the Korean War, which was relatively minor for Australia, it was a time of peace. In addition, Justices Dixon and Fullagar said that the defence power only related to external threats, and Justices Williams and Webbs accepted that the only exception to that rule was internal threats to preparations for war. While this understanding of the defence power has changed since on War on Terror and Thomas v Mowbray (2008), it was accepted at the time.
Justices Dixon and McTiernan were critical for the conditions for banning the Communist Party. In particular, Justice McTiernan, at paragraph  of his judgment, said that the ban depended on whether someone or something was associated with communism, and even then it didn’t count the actions of individual communists that the legislation was affecting, only the beliefs of communism in general, as stated by Marx and Lenin. He said that “their mere aims as communists, apart from their actions, are not sufficient … to deprive all members … of civil liberties.”
While the court accepted that there were instances that the Commonwealth could pass anti-sedition laws, they came from other heads of power, namely the executive power of Section 61, incidental power of Section 51 (xxxix), or an implied power to protect the integrity of Australia and its government, which is known as the implied nationhood power. There isn’t enough detail to discuss these here, and the court was divided over which to use.
Despite the possible existence of a power to deal with sedition or domestic threats, the court did not apply it here. The problem was that the government didn’t allow the judicial system to determine if someone was guilty of sedition. It allowed the executive branch of government to assume this power instead, and declare that someone was guilty of sedition without a trial, asserting that it fell within the heads of power that could be exercised by the government. The court ruled that the political government cannot simply state that a law is lawful just because it says so. Whether something is lawful should be left to the politically neutral courts. This discussion of the separation of powers would become important to cases like those discussed in Common(wealth) Knowledge #14 and Common(wealth) Knowledge #28. It was best summarised by Justice Fullagar, at paragraph :
“A stream cannot rise higher than its source. … The validity of a law or an administrative act done under a law cannot be made to depend on the opinion of the lawmaker, 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 lighthouse does not authorise the making of a law with respect to anything which is, in the opinion of the law-maker, a lighthouse.”
Just because Parliament or the Executive says the Constitution gives it the power to do something doesn’t mean it actually does give it that power. Interpreting whether the Constitution gives it that power is done by the court. To use Abraham Lincoln’s metaphor, just because you say that a dog’s tail is a leg doesn’t mean it actually is a leg.
Menzies’ final attempt at abolishing the Communist Party was a referendum held in 1951 to add a clause about it into the Constitution. But, without having to worry about the threat of a double dissolution, Labor, spearheaded by former High Court judge H V Evatt, was free to campaign against the referendum, and it failed.
Although this makes it pretty clear that the government would have a hard time banning communism, or other political ideologies, the implied freedom of political communication is also relevant. It probably isn’t necessary to explain it here, because it’s come up in so many other articles in this series, but in the absence of sedition or some other serious threat to Australian democracy, the implied freedom of political communication would protect the freedom of communists to talk about political issues and be involved in elections in Australia.
Unless Senator Babet can prove that Australian communists are committing treason or inciting a revolution through sedition, it is virtually impossible to ban communism, especially as Australia isn’t at war with any communist nations.
While the implied freedom of political communication adds another level of protection for Australian communists, it is just a redundancy; even without it, Babet would have a very hard time trying to ban a political ideology, especially as there isn’t even a registered communist political party anymore.
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Adelaide Company of Jehovah’s Witnesses Incorporated v Commonwealth (1943) 67 CLR 116;  HCA 12 (‘Jehovah’s Witnesses Case’).
Australian Communist Party v Commonwealth (1951) 81 CLR 1;  HCA 5.
Commonwealth of Australia Constitution Act 1900 (Imp) 63 & 64 Vict, c 12.
Communist Party Dissolution Bill 1950 (Cth).
Michelle Gordon, ‘Communist Party Case: Core Themes and legacy’ (2021) 32 Public Law Review 291.
National Security Act 1939 (Cth).
National Security (Subversive Organisations) Regulation 1940 (Cth).
Elijah Granet’s ‘Better AustLII’ web extension.