Australian Communist Party v Commonwealth

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Australian Communist Party v Commonwealth
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High Court of Australia
Full case name	Australian Communist Party v The Commonwealth
Date decided	9 March 1951
Citations	HCA 5; (1951) 83 CLR 1
Judges sitting	Latham CJ, Dixon, McTiernan, Williams, Webb, Fullagar, and Kitto JJ
Case history
Prior actions	none
Subsequent actions	referendum
Case opinions
The defence power waxes and wanes. During a time of peace, the defence power is not broad enough to allow the Government to outlaw organisations.

Australian Communist Party v The Commonwealth (1951) 83 CLR 1, also known as the The Communist Party Case, was a legal case in the High Court of Australia

Background

Taking advantage of Cold War concerns, Prime Minister Robert Menzies enacted legislation to outlaw the Communist Party. The legislation also put restrictions on who could hold office in trade unions. The government's claim was that it had the power to do so under section 51(vi) (defence power) of the Australian Constitution.

Decision

The High Court decided that the Federal Parliament did not have the power to make such a law, and that it was for the people, at elections, to reject parties which may be viewed as extremist.

Aftermath

Later in the year, at the Australian referendum, 1951, Menzies sought to amend the Constitution to permit the parliament to make laws in respect of Communists and Communism where this was necessary for the security of the Commonwealth. If passed, this would have given a government the power to introduce a bill proposing to ban the Communist Party (although whether it would have passed the Senate is an open question). However, the Opposition leader Dr. H. V. Evatt campaigned strongly on civil liberties grounds, and the proposal was narrowly defeated.

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