Australian Communist Party of Australia v The Commonwealth: Histories of Australian Legalism

Abstract

In this article I structure legalism as a device to interpret how 1951 is remembered in law, in order to show what legal orthodoxies meant in their own time, and how that shifts to a different form of legalism in our own. In doing so, I will argue that the idea of legalism famously produced by the High Court judgment in 1951 has shifted its meaning as much as the ideological support of and opposition to communism that were expressed in the case. I will suggest that this history requires conscious incorporation in the commemorative narratives of ‘democracy vs. communism’.

Notes

*This essay, like the others in this volume, arises from a symposium entitled ‘Democracy versus Communism: Remembering the 1951 Referendum on the Banning of the Communist Party, 60th Anniversary’, held at the University of Melbourne on 22 September 2011.

¹Compare, for example, Ann Curthoys and John Merritt, eds, Better Dead Than Red: Australia's first Cold War, 1945–1953 (Sydney: George Allen & Unwin, 1984); and Elsa Atkin and Brett Evans, eds, Evatt Foundation Conference, Seeing Red: The Communist Party Dissolution Act and Referendum 1951. Lessons for Constitutional Reform, NSW Parliament House and the University of Sydney, April 1991 (Sydney: Evatt Foundation, 1992). Many of the papers cited below, and throughout this essay, were initially presented at this 1991 conference.

²(1951) 83 CLR 1. Hereafter ‘CPA case’.

³E.g. Justice Michael Kirby, ‘H V Evatt, the Anti Communist Referendum and Liberty in Australia’, Australian Bar Review 7 (1991): 93–120; Justice Michael Kirby, ‘Kitto and The High Court of Australia’, Federal Law Review 27 (1999): 131–49.

⁴Scholarship on the use of the defence power and the CPA case has of course coincided with different events and national fears, namely those that were produced after 11 September 2001. Scholarship on this question therefore dates more accurately to the early 2000s. See, for example, Jenny Hocking, ‘ Australian Terror Laws: An Historical Critique’, paper presented at ‘National Forum: The War on Terrorism and the Rule of Law’, Sydney, NSW Parliament House, 10 November 2003, http://www.gtcentre.unsw.edu.au/sites/gtcentre.unsw.edu.au/files/mdocs/88_JennyHocking.pdf (accessed 16 December 2011).

⁵For example, Laurence Maher, ‘Dissent, Disloyalty and Disaffection: Australia's Last Cold War Sedition Case’, Adelaide Law Review 16, no. 1 (1994): 1–77; Roger Douglas, ‘Cold War Justice? Judicial Responses to Communists and Communism, 1945–1955’, Sydney Law Review 29 (2007): 43–84.

⁶E.g. George Williams, ‘Reading the Judicial Mind: Appellate Argument in the Communist Party Case’, Sydney Law Review 15 (1993): 3–29.

⁷E.g. George Winterton, ‘The Significance of the Communist Party case’, University of Melbourne Law Review 18 (1991): 630–58.

⁸John Morss, ‘Facts, Threat and Reds: Common Law Constitutionalism and the Rule of Law’, Deakin Law Review 14, no. 1 (2009): 79–98.

⁹Brian Galligan, Politics of the High Court: A Study of the Judicial Branch of Government (Brisbane: University of Queensland Press, 1987), 203.

¹⁰Judith Shklar, Legalism: Law, Morals and Political Trials (Cambridge, MA: Harvard University Press, 1964).

¹¹Although there is a rule of law tradition and narrative in Australian historiography that could be read as colliding with ‘legalism’ as I am choosing to use it, it offers a different historical account and emanates from a different tradition of scholarship.

¹² CPA case, 6. I am intentionally therefore leaving out contextualisation of the content, especially with regard to ‘British justice’ principles, and discussion of the dramatis personae. For a discussion of those issues see Frank Bongiorno, ‘Herbert Vere Evatt and British Justice: The Communist Party Referendum of 1951’, in this volume.

¹³I.e.: the defence power section 51 (vi), the incidental power section 51 (xxxix) and the executive power section 61.

¹⁴For a full explanation of that genesis see Maher, ‘Dissent’, and particularly Winterton, 639–42, who includes a full discussion of the parliamentary debate on the Bill, and of ALP moved amendments, and comments on this point. He also notes that there was little difference between the Bill and the Act once passed. See also CPA case, per Latham CJ, 129–31.

¹⁵ CPA case, per Latham J, 129, 133–6.

¹⁶ CPA case, per Latham J, 1–8.

¹⁷ CPA case, per Latham J, 1–8.

¹⁸For example, there had been unsuccessful attempts by the Lyons government in the 1930s, and another attempt at regulation by the ALP in 1940.

¹⁹One possible effect was that the government could spread the force of the Act widely, including potentially the ALP itself, some of whose members shared ‘objectives’ with CPA but differed on methods: see Winterton.

²⁰Section 5. Latham CJ in his summary describes the CPA as ‘a revolutionary party using violence, fraud, sabotage, espionage and treasonable or subversive means for the purpose of bringing about the overthrow or dislocation of the established means of government in Australia’. CPA case, per Latham CJ, 129; see also Dixon J, 177.

²¹ CPA case, per Dixon J, 181, describes this as a ‘deprivation of property’. Winterton notes it was this provision as regards discharge of liabilities and realisation of assets that was seen by the drafters as a step toward ‘saving’ the Bill. The previous attempt to ban political organisations was tested in Adelaide Company of Jehovah's Witnesses Inc. v The Commonwealth (1943) 67 CLR 116. In this case the High Court had struck down the National Security (Subversive Organisations) Regulations on the basis that forfeiture of assets was final, regardless of whether the organisation continued to be declared a threat. See Winterton.

²² CPA case, for example, per Dixon J, 177–9, 182.

²³ CPA case, for example, per Dixon J, for example, per McTiernan J, 211.

²⁴ CPA case, for example, per Dixon J, for example, per McTiernan J, 1–8.

²⁵ CPA case, for example, per Dixon J, for example, per McTiernan J, 6. Winterton, 647, fn. 154 notes that proceedings were issued three hours after Royal Assent was given to the Act. The plaintiffs were: the Australian Communist Party, the Waterside Workers Federation of Australia and Healy, the Australian Railways Union and Brown, Bulmer and Others suing for the Building Workers Industrial Union and Purse, the Amalgamated Engineering Union and Rowe, the Seaman's Union and Elliot, the Federated Ironworker's Association and Phillips, the Australian Coal and Shale Employees Federation and Williams.

²⁶Winterton, 636.

²⁷ CPA case, 9.

²⁸ CPA case, 9–10.

²⁹Dixon, McTiernan, Williams, Fullagar and Kitto JJ were in substantial agreement as to their reasoning. Webb J said validity depended on truth of the facts; however the Commonwealth offered no evidence to support those facts in their recitals, so the case failed: CPA case, 242–5. Latham CJ dissented, primarily on the basis that he believed it was within the exercise of parliamentary and executive jurisdiction to validly exercise the powers proscribed by the Act, and that the Court should not assert itself to prevent the exercise of that jurisdiction. I will summarise and synthesise the findings in this essay, rather than give a complete doctrinal analysis. For a full and detailed discussion, see in particular Williams, who has undertaken extensive study of the transcripts of the hearings as well as all seven judgments. Williams, ‘Reading’.

³⁰Anthony Mason has described Latham CJ as ‘disposed to see legal questions from the perspective of government. He constantly rejected challenges to the validity of legislation during the Second World War and in its immediate aftermath. His judgments tended to favour central power—(most expressly in CPA)—a dissent which attracted strong criticisms from Dixon J’. The Hon Sir Anthony Mason, ‘The High Court of Australia: A Personal Impression of Its First 100 Years’, Melbourne University Law Review 27 (2003): 877.

³¹ CPA case, per Dixon at 185.

³² CPA case, per Latham CJ, 150; Dixon J, 188, 194–6; McTiernan J, 207; Fullagar J, 253.

³³ CPA case, per Latham CJ, 141–2.

³⁴ CPA case, per Latham, 151.

³⁵ CPA case, per Dixon J, 201.

³⁶ CPA case, for example, Dixon J, 186.

³⁷ CPA case, per Kitto J, 278.

³⁸ CPA case, per McTiernan J, 205–6, Dixon J, 190–1, 200.

³⁹ CPA case, for example, Latham CJ, 144–8, 149, 155. See, however, Douglas, for consideration of this question in other cases, especially how the High Court dealt with the question of sedition in Burns v Ransley (1949) 79 CLR 101 and R v Sharkey (1949) 79 CLR 121. See also Lawrence W. Maher, ‘The Use and Abuse of Sedition’, Sydney Law Review 14 (1992): 287.

⁴⁰ CPA case, per Dixon J, 196; Latham CJ, 14, 163–4; McTiernan J, 205; Fullagar J, 252, 258.

⁴¹ CPA case, in particular see Latham CJ, 150.

⁴² CPA case, Dixon J, 196, 202; Kitto J, 277; McTiernan J, 207–9.

⁴³ CPA case, for example Latham CJ, 149; Dixon J, 195–8.

⁴⁷ CPA case, Dixon J, 193. See also his comments about the federal compact at 203–5.

⁴⁴ CPA case, Kitto J, 280.

⁴⁵ CPA case, Fullagar J, 258.

⁴⁶ CPA case, Dixon J, 187; Fullagar J, 259.

⁴⁸In the sense meant by Robert W. Gordon, ‘Introduction: J Willard Hurst and the Common Law Tradition in American Legal Historiography’, Law and Society Review 10, no. 1 (1975): 9–55.

⁴⁹ CPA case, Fullagar J, 262

⁵⁰Jeffrey Goldsworthy, ‘Australia: Devotion to Legalism’, in Interpreting Constitutions: A Comparative Study, ed. Jeffrey Goldsworthy (Oxford: Oxford University Press, 2006), 106–60.

⁵¹Shklar, 4.

⁵²Shklar, 5–6.

⁵³Shklar, x.

⁵⁴Shklar, 13.

⁵⁵Sir Owen Dixon, ‘Address upon taking the oath of office in Sydney as Chief Justice of the High Court of Australia on 21st April, 1952’, in Jesting Pilate and Other Papers and Addresses, ed. Judge Woinarski (Melbourne: Law Book Co., 1965), 247. See also ‘Concerning Judicial Method, speech delivered at Yale on 19th September, 1955, on the occasion of receiving the Henry E. Howland memorial prize’, in Jesting Pilate, 152–65.

⁵⁶As Kirby notes, ‘The solution to the problem [in the CPA judgment] was to be found in past decisions … the judgement was silent on any limitations imposed by implied rights or the structure of the [constitution] document.’ Kirby, ‘Kitto’, 138.

⁵⁷D. P. Derham, ‘Australian Communist Party v The Commonwealth’, Journal of Comparative Legislation and International Law 33, no. 3/4 (1951): 40. A complementary point is made by P. H. Partridge in 1955, who notes that in comparison with Bill of Rights cases heard by the US Supreme Court, ‘civil liberties have no preferred position in the same sense in our law’. P. H. Partridge, ‘The Rights of the Citizen’, in Liberty in Australia, ed. Australian Institute of Political Science (Sydney: Angus and Robertson, 1955), 43–80.

⁵⁸Galligan, 203.

⁵⁹ CPA case, per Fullagar J, 262.

⁶⁰ Dennis v United States 341 U.S. 494 (1951).

⁶¹54 Stat. 670, 671 (1940).

⁶²Shklar, 210.

⁶³Shklar, 210.

⁶⁴Shklar, 14.

⁶⁵Shklar, 111.

⁶⁶Shklar, 111.

⁶⁷Winterton, 653.

⁶⁸Douglas, 83.

⁶⁹Kirby, ‘Kitto’, 136–7.

⁷⁰Kirby, ‘Kitto’, 143–4.

⁷¹Kirby, ‘Kitto’, 143–4.

⁷²Compare for example changes in approach from Amalgamated Society of Engineers v Adelaide Steamship Co Ltd. (1920) 28 CLR 129, 161–2, to Project Blue Sky Inc. v Australian Broadcasting Authority (1998) 194 CLR 355.

⁷³Commonwealth, 207 Parliamentary Debates, House of Representatives, 27 April 1950, 1994, quoted by Winterton, 640.

⁷⁴Commonwealth, 207 Parliamentary Debates, 2268, quoted by Winterton, 641.

⁷⁵H. V. Evatt, ‘Danger to All Citizens’, Herald, 6 May 1950; Commonwealth, 207 Parliamentary Debates, 2287–8, quoted by Winterton, 641.

⁷⁶For example: Kirby, ‘Kitto’; Winterton; Mason, ‘The High Court’; Maher, ‘Dissent’; Williams, ‘Reading’.

⁷⁷Kirby, ‘Kitto’, 144.

⁷⁹Williams, ‘Reading’, 25.

⁷⁸Williams, ‘Reading’, 25.

⁸⁰Williams, ‘Reading’, 25.

⁸¹Williams, ‘Reading’, 25.

⁸²Sir Owen Dixon, ‘The Law and the Constitution’, Law Quarterly Review 51 (1935): 597.

⁸³David Dyzenhaus, The Constitution of Law: Legality in a Time of Emergency (Cambridge: Cambridge University Press, 2006), as discussed in this context by Morss. This is a well-stated principle of constitutional interpretation; see for example McGinty v Western Australia (1996) 186 CLR 140.

⁸⁴ Australian Capital Television Pty Ltd v Commonwealth) (1992) 177 CLR 106 (ACT TV case). See for discussion Adrienne Stone, ‘The Limits of Constitutional Text and Structure: Standards of Review and the Freedom of Political Communication’, Melbourne University Law Review 23 (1999): 668–708.

⁸⁵For full discussion of this point see Margaret Allars, ‘The Rights of Citizens and the Limits of Administrative Discretion: The Contribution of Sir Anthony Mason to Administrative Law’, Federal Law Review 28 (2000): 188–211.

⁸⁶ ACT TV case, per Mason CJ, 138 (emphasis added).

⁸⁷Sir Anthony Mason, ‘No Place in a Modern Democratic Society for a Supine Judiciary’, Law Society Journal 35 (December 1997), quoted by Allars, 188.

⁹¹ Pape v Commissioner of Taxation (2009) 238 CLR 1, per French CJ, 10, quoting Dixon J in the CPA case, 187. The case tested the economic stimulus package.

⁸⁸See for discussion of this general argument in the context of recent case law, The Hon Duncan Kerr SC, ‘The High Court and the Executive: Emerging Challenges to the Underlying Doctrines of Responsible Government and the Rule of Law’, University of Tasmania Law Review 28, no. 2 (2009): 145–81.

⁸⁹The Hon Murray Gleeson has said extra-curially, it is ‘not merely a formal concept’ but a ‘core value’, as quoted by Kerr, 151.

⁹⁰ Al-Kateb v Goodwin (2004) 219 CLR 562; Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82; Thomas v Mowbray (2007) 233 CLR 307. See for a discussion of this later case in the context of issues raised in this essay: Hernan Pintos-Lopez and George Williams, ‘“Enemies Foreign and Domestic”: Thomas v Mowbray and the New Scope of the Defence Power’, University of Tasmania Law Review 28, no. 1 (2008): 83–110.

⁹²Shklar, 209.

⁹³ Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32.