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Constitution and Communist Case

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Constitution and Communist Case

Read the case summary and use its evidence to answer the questions. For the final question, more than one position is defensible: support your view with constitutional reasoning.

Case file: Australian Communist Party v Commonwealth (1951)

After the Second World War, the Menzies Government argued that communism threatened Australia’s security. In 1950, the Commonwealth Parliament passed the Communist Party Dissolution Act. The Act declared the Australian Communist Party unlawful, provided for its dissolution and allowed certain people and organisations to be declared communist, with serious consequences for them. The Commonwealth defended the law mainly by relying on its defence power in section 51(vi) of the Constitution, together with other supporting powers. The Communist Party and others challenged the Act in the High Court. In 1951, by a 6–1 majority, the Court held the Act invalid. The majority concluded that the law could not be supported by the constitutional powers relied on. Parliament could not make a law constitutional simply by declaring that an organisation was a threat; the law still had to fall within a power granted by the Constitution. The Court did not decide that communism was harmless, nor did it establish an absolute constitutional right for political parties to operate. The case is an example of judicial review: a court examining whether a law is constitutionally valid. It also illustrates federalism, because the Commonwealth Parliament has only the law-making powers given to it by the Constitution, including enumerated powers such as those in section 51. A law outside those powers may be invalid. The scope of a power can depend on the law’s purpose and circumstances; a genuine wartime emergency could strengthen a defence-power argument, but would not automatically make every restriction valid. Australia does not have a general constitutional bill of rights. Some protections are express, while the High Court has recognised limited implications from the Constitution’s text and structure. For example, the implied freedom of political communication limits government action that burdens political communication, but it is not a personal right to say anything without restriction.

Analyse the case

Answer using the case file. Distinguish what the Court decided from broader claims about rights and democracy.

1.Which section of the Australian Constitution was the main basis for the Commonwealth’s defence of the Dissolution Act?

Section 51(vi), the defence power
Section 51(i), trade and commerce
Section 109, inconsistency between State and Commonwealth laws
Section 128, constitutional alteration

2.What did the High Court decide in 1951, and by what majority?

3.Complete the reasoning: The Commonwealth must connect a law to a constitutional power; a parliamentary declaration alone cannot a law constitutional; therefore the Court examined whether the Act was supported by the powers relied on.

4.True or false: The High Court ruled that communism was harmless and that political parties have an absolute constitutional right to operate.

TrueFalse

5.Match each term to its meaning.

Judicial review
Enumerated power
Constitutional validity

A law-making power specifically given to the Commonwealth by the Constitution
A court examines whether a law complies with the Constitution
Whether a law is supported by the Constitution

6.Explain why the Commonwealth could not make the Act valid simply by declaring the Communist Party a threat. Use the idea of division of powers in your answer.

7.Give one reason this case is significant for Australia’s system of government. Support your answer with a fact from the case.

8.A government argues that the same kind of restriction would be valid during a declared wartime emergency. Why might the defence-power argument be stronger then, and why would the law still require constitutional scrutiny?

9.In your own words, explain why the implied freedom of political communication is not the same as an unrestricted personal right to speak.

10.Should Australia add an express bill of rights to its Constitution? Give a clear position and support it with one point drawn from the Communist Party case and one reason of your own.