Laurence W Maher. Australian Historical Studies. Volume 44, Issue 1. March 2013.
The lawyers called upon to draft a Bill which, if enacted, could validly give effect to the promise of the successful Liberal-Country Party coalition in the 1949 federal election to outlaw the Communist Party of Australia, faced a difficult assignment. Their political instructors faced a dilemma: should the new government take a less confrontational approach to communist disruption of the economy and risk undermining the government’s popular support, or should it press ahead with the promised ban and risk having the High Court of Australia invalidate it? In a process in which the politics of pragmatism gave way to Cold War ideology, the choice of the latter path led to failure.
In the joint opposition parties’ policy speech which he delivered on 10 November 1949, Robert Gordon Menzies KC gave the following undertaking:
The Communists are the most unscrupulous opponents of religion, of civilized government, of law and order, of national security. Communism in Australia is an alien and destructive pest. If elected, we shall outlaw it. The Communist Party will be declared subversive and unlawful, and dissolved. A receiver will be appointed to deal with its assets. Subject to appeal, the Attorney-General will be empowered to declare other bodies substantially Communist; to follow the party into any new form and attach illegality to that new association. No person now a member of the Communist Party shall be employed or paid a fee by the Commonwealth; nor shall any such person be eligible for any office in a registered industrial organization.
As the Cold War worsened abroad and at home, the Liberal–Country Party coalition fought the 1949 federal election on a promise to smash communism in Australia because, so it alleged, the Communist Party of Australia (CPA) was a treasonable conspiracy designed to bring about a revolutionary situation in which, using force, it would seize power and impose a dictatorship of the proletariat as expounded by Marx and Lenin.
This article attempts to add to our understanding of the circumstances surrounding the passage of the Communist Party Dissolution Act 1950 (the Dissolution Act). The events which occurred after the Bill for the Act was introduced in the House of Representatives by Prime Minister Menzies on 27 April 1950, culminating in the Act’s invalidation by the High Court of Australia on 9 March 1951, are documented in the Commonwealth Hansard, in the contemporary newspaper archives and in the legal and other scholarly literature. By contrast and perhaps not surprisingly, little attention has been paid to the behind-the-scenes work of the lawyers in Canberra, Sydney and Melbourne to whom the task of drafting the Bill had been assigned.
The challenge which those lawyers faced was to ensure that the Bill they drafted would, if enacted, reveal a sufficiently close connection with some specified subject matter within Commonwealth legislative competence to withstand challenge. The Commonwealth Parliament could not go beyond the limitations, express and implied, on the powers to make laws given to it by the Australian Constitution. The chief repository of such power was section 51 and the most obvious specific category was the power to make laws with respect to ‘The naval and military defence of the Commonwealth and of the several States, and the control of the forces to execute and maintain the laws of the Commonwealth’. The chief subsidiary sources were the power to make laws in respect of the maintenance of the Constitution or the execution of the laws and government of the Commonwealth which derived from section 51(xxxix) and section 61.
When it came to implementing its promise to outlaw the CPA, the new government’s ideological impetus appeared to slacken somewhat in early 1950 and pragmatic considerations began to affect its decision-making. There was a willingness in some quarters to adopt what appeared to be a far less doctrinaire reliance on the abstract alleged imminent threat which the CPA was to national security and to focus instead on the concrete disruptive effect of the CPA on the nation’s economy through its influence in the trade union movement, and its potential for subverting the government’s own employees. There were some, including the opposition leader, J. B. Chifley, who considered, for good reason, that from the outset Menzies’ real objective in seeking to outlaw the CPA was to split the Australian Labor Party (ALP).
Soon after the election, doubt had been expressed publicly as to whether the new government had the power to carry out its promise to outlaw the CPA. In early January 1950, press reports appeared stating that the federal government was taking steps to eliminate communists and communist sympathisers from the Commonwealth public service. If this mention of one specific feature of the new government’s commitment to implement urgent anti-communist action suggested that it was having second thoughts, such speculation might be seen to have received some further support when the first session of the Nineteenth Parliament was convened on 22 February 1950. In his speech, the Governor-General, William John McKell, made the following low-key statement concerning the government’s promise to outlaw the CPA:
My advisers intend taking strong measures to protect the community against the activities of subversive organizations and individuals, and in particular they have in mind the Communist Party and its members. A Bill will be introduced early in the Parliament to deal with this matter.
The government’s more focused and far from draconian preference for combating what it saw as the domestic communist menace to industrial harmony was suggested in this further statement:
My advisers intend to review the existing machinery for conciliation and arbitration in the light of its operations since the amending Act of 1947. An investigation is also being made of measures that might be taken to restore to Union members the opportunity to express their views, by democratic methods, in relation to the election of officers and threatened or actual disputes.
In a submission prepared for a Cabinet meeting on 3 March 1950, the Minister for Labour and National Service, the Victorian lawyer, Harold E. Holt, identified the government’s objectives as follows:
The question now arises for determination whether industrial stability and co-operation will be served by the proposals indicated in the [election] Policy Speech, or whether some modification of these proposals is desirable in the light of intervening developments and present knowledge. Our Policy embraces these broad industrial objectives and all that they imply in terms of increased production, harmony in industry and industrial peace. We are unshaken in our determination to smash Communism in Australia, not merely because of its threat to these industrial objectives, but because we believe it to be a subversive, alien, treasonable, anti-democratic movement.
Holt considered that the government should keep foremost in mind the objectives of its policy because the means by which it hoped to reach those objectives were subsidiary and could be so represented to the public. Holt’s assessment was that it would be folly for the coalition to hold itself bound to one or more of the methods originally proposed if it believed that, far from assisting it to reach desired objectives, they would be more likely to have the effect of defeating them.
Holt acknowledged that there were powerful arguments for and against banning the CPA and ‘there was room for doubt as to its effectiveness in stamping out Communism’. These considerations, he stated, had been fully weighed before the coalition parties’ policy decision was announced in 1949. There was no need to stress the unfavourable political repercussions if the proposal were to be abandoned. It had been condemned for its undoubted restriction on freedom of action and organisation. What convinced Holt that the policy should not be reconsidered was his belief that public opinion was overwhelmingly in favour of a ban on the CPA and that it would be well received by rank and file unionists. However, in his Cabinet submission, Holt paid lip service to the dire threats to national well-being said to be inherent in tolerating the continued existence of a local conspiracy which was an integral part of the Soviet Union’s plan for world domination. Instead, Holt rested the case for carrying out the election promise on the need for reform in the method of conducting trade union elections, and banning communists from holding positions in the Commonwealth public service and in trade unions. So far as the former was concerned, a small start had been made by the Chifley government in the Conciliation and Arbitration Amendment Act 1949. Holt’s recommendation was that a draft Bill should be prepared but not be introduced until an industrial crisis giving a favourable public atmosphere for its passage developed. Holt had spoken to Albert Monk, the President of the Australian Council of Trade Unions (ACTU), and its Secretary, R. R. Broadby, who was also Federal Secretary of the ALP. The ACTU was opposed to the proposed ban and believed that the worst and immediate effect would be to bring about a common front by moderate and communist unionists in defence of the principle that interference in the domestic affairs of unions should be resisted. Holt was singularly impressed by the fact that the CPA’s near capture of control of the ACTU Congress in 1945 had been followed by a dramatic change for the better as a consequence of sustained anti-communist exertion aimed at dislodging communists from their controlling positions in the unions. At the 1949 ACTU Congress, the anti-communist bloc had a majority of more than 100 delegates.
Holt’s emphasis on increased production and industrial stability and harmony can be seen as a component in the new government’s economic and national development planning which was influenced by an abiding concern that another world war was imminent. This broader impulse would also be manifested in the establishment of the National Security Resources Board in December 1950 (inspired by the US agency of the same name), and in the passage of the Defence Preparations Act 1951. Although the anti-communist fear-mongering which had been such a feature of the 1949 election campaign and had contributed to the coalition’s emphatic electoral success was downplayed when it came to producing a Bill in fulfilment of the election promise to ban the CPA, nevertheless there was utility in harping publicly on the ‘deadly enemy within’ thesis. The Cold War was deteriorating in more ways than one. By the time North Korean armed forces crossed the 38th parallel on 25 June 1950, the implementation of the promise was well advanced albeit to a stage where a legislative deadlock prompted speculation about a double dissolution of the Parliament. The stalling of the Bill was also fuelling a row inside the ALP which, in turn, was generating talk about (yet another) split in the party.
Questions Concerning Power
Could the Commonwealth Parliament outlaw a political party and bolster its scheme by conferring unreviewable ancillary discretionary powers? How would the Bill for the proposed Dissolution Act, on its face, explicitly establish a real and substantial connection with the defence of Australia? Would it be enough merely for the Parliament to assert that the nation faced imminent destruction by reference to the integrated role of the domestic and international communist movements? In the absence of the existence of a state of war, who was to have the final say on the determination of the exigency of the danger—the executive or the judiciary?
The defence power in section 51(vi) of the Constitution gave authority to legislate in advance of hostilities, to impose near blanket controls during wartime, to control the transition from war to peace and to take defensive measures in times of peace. The challenge facing the lawyers in 1950 was not an entirely unprecedented one. The problem of alleged subversive organisations, and the CPA in particular, had engaged the attention of all three branches of government. During Wold War I, the Commonwealth Parliament enacted the Unlawful Associations Acts 1916 and 1917 to proscribe the Industrial Workers of the World and to enable the executive branch to declare that revolutionary and seditious organisations were unlawful. Then, in the immediate aftermath of the formation of the CPA in 1920, the Parliament had inserted sedition and related provisions in the Commonwealth Crimes Act 1914. In 1926, the Attorney-General (and determined anti-communist), John Greig Latham KC, had targeted the CPA by securing an amendment to the Crimes Act which inserted a new ‘Part IIA—Unlawful Associations’. A new section 30A declared generally that associations advocating or encouraging the overthrow of the Commonwealth were unlawful. Section 30R of the Act enabled the prosecutor to rely on assertions of fact (averments) as prima facie evidence of the matters averred in prosecutions for conduct infringing the scheme.
In 1932, the Commonwealth had prosecuted the publisher of the Workers’ Weekly for soliciting money for the CPA on the basis that the CPA was an unlawful association within the meaning of section 30A of the Crimes Act. The charge contained sixty-eight pages of averments intended to prove that the CPA was the Australian section of the Communist International whose purpose was the violent replacement of the existing economic, industrial and social order and the suppression by force, if necessary, of the influence of all the other classes of the community and various ancillary characteristics. On a challenge to the publisher’s conviction, for which he had been sentenced to six months’ imprisonment to be kept at hard labour, a majority of the High Court of Australia held that, in circumstances where the prosecution had tendered a large amount of printed CPA material evidencing its revolutionary aims but otherwise neither side had called any evidence, the prosecution had not proved its case by reliance on the averments. In 1932, Latham secured further amendments to the Crimes Act to extend the jurisdiction for obtaining court declarations as to the unlawfulness of seditious and revolutionary bodies.
Immediately following the commencement of World War II, the Commonwealth Parliament passed the National Security Act 1939, an omnibus measure which put the entire resources of the nation on a war-footing. The CPA had been declared an illegal organisation pursuant to the National Security (Subversive Associations) Regulations in mid-1940. That ban was withdrawn by the Commonwealth Attorney-General, Dr H. V. Evatt KC, in December 1942.
On 27 April 1950, in his second reading speech on the Bill for the Dissolution Act, Prime Minister Menzies described the Bill as ‘admittedly novel’. It was, he asserted, in a most special and important sense a law relating to the safety and defence of Australia and was designed to deal with the King’s enemies in the country. In affecting certain communists in their trade union offices, it was merely an inevitable consequence of a self-defending attack upon treason and fifth-columnism wherever they were to be found. ‘We are not at peace to-day, except in a technical sense.’
The lawyers whose task it had been to produce that Bill were a closely connected group. Overall political responsibility rested with the Commonwealth Attorney-General (the first law officer), Senator John Armstrong Spicer KC. Born in 1899, Spicer was five years younger than Prime Minister Menzies, and had known Menzies from his student days. Spicer, who commenced practice at the Victorian Bar in 1922, once said that he had grown up in politics together with Menzies. He had helped establish, and had been an office bearer in, the Young Nationalist Organisation in Victoria and was active in party electioneering before being elected to the Senate as a United Australia Party (UAP) candidate in 1940. He was defeated in the 1943 election, which had marked the end of the UAP, and was re-elected for the successor Liberal Party in 1949. He had done well at the Victorian Bar. He was appointed a King’s Counsel (taken silk) in 1948 and had been a member of the team of six counsel led by F. W. Kitto KC (of the New South Wales Bar), which had appeared for the Bank of Australasia and other English banks in the High Court in the successful attack on the Chifley government’s bank nationalisation scheme embodied in the Banking Act 1947.
When the President and Secretary of the Australian Legion of Ex-Servicemen and Women visited Canberra in January 1950 and urged Spicer to legislate for the public disclosure of communists and their supporters, for widening of the proposed individual disqualifications, for empowering voluntary associations to expel declared communists from membership and for imposition of wide-ranging civil disabilities on declared communists, the Attorney-General made it plain that the government would not, as a matter of policy, go beyond its election campaign speech.
The government’s chief in-house lawyers were Kenneth Hamilton Bailey, the Secretary of the Attorney-General’s Department and Solicitor-General (the second law officer), the Chief Parliamentary Draftsman, John Qualtrough Ewens, and the Crown Solicitor, George A. Watson. Ewens and his principal assistant draftsman, Charles K. Comans, were the specialist draftsmen, but Bailey, their departmental superior, was intimately involved both in the collective drafting work and in a co-ordinating role. Watson’s task, through his deputies in Sydney and Melbourne, was to liaise with the outside counsel who were briefed to work on specific elements of the Bill for the Dissolution Act and generally in anticipation of litigation arising from the passage of the Act.
Bailey, who had also been active in the Young Nationalist Organisation in Victoria, was Dean of the Faculty of Law at the University of Melbourne when he was recruited by H. V. Evatt in 1942 to run the Attorney-General’s Department. In one of those rare cases where both the first and second law officers had represented the Crown, Bailey had appeared with Evatt in the Banknationalisation case in the High Court. And, as the debilitating national CPA-inspired coal strike was approaching its dramatic high point in mid-1949, Bailey had, in the absence of Evatt, successfully defended the Chifley government’s National Emergency (Coal Strike) Act 1949 in the High Court.
In Sydney, Watson retained William John Victor Windeyer KC and Harold A. Snelling in early 1950 to advise on questions pertaining to whether the evidentiary material which had been assembled by the Commonwealth authorities was capable of proving that particular persons were or had been members of the CPA, and, if the material admissible in evidence was insufficient for that purpose, to suggest any provisions which, if inserted into the Dissolution Act, would facilitate proof of membership in any proceedings under the Act in which it was in issue. Windeyer had been an army brigade commander in World War II and was a member of the Military Board. The tentative view of Windeyer and Snelling (they had not then seen a draft Bill) was that the existence of the CPA was a notorious fact of which judges might take judicial notice, but that actual proof might be troublesome. ‘We suggest therefore that the fact be recited in the preamble, and further that the statute contain a provision rendering it unnecessary to prove the fact in any proceedings.’
Bailey had decided to retain Murray V. McInerney of the Victorian Bar who, led by R. R. Sholl KC and Stanley Lewis KC, had been counsel assisting the Royal Commission into the Aims and Objectives of the Communist Party which had been established by the Victorian government in 1948 in the wake of disclosures made by the CPA defector Cecil Sharpley in The Herald newspaper in Melbourne. Not only did McInerney bring to his participation in the drafting exercise his mastery of the months of evidence about the CPA heard by the Royal Commissioner, Mr Justice Charles Lowe of the Supreme Court of Victoria, but he probably also used the insights he had acquired as someone who knew the workings of the anti-communist milieu of Catholic Action, derived from his close personal friendship with his co-religionist and anti-communist zealot, B. A. Santamaria.
The Bill which Menzies introduced in the Parliament on 27 April 1950 provoked widespread public criticism, not least because of clause 9 which provided that a person in respect of whom the Governor-General had made a declaration that the person was engaged, or was likely to engage, in activities prejudicial to the security and defence of the Commonwealth, bore the onus of disproving that he or she was such a person. Allan Martin said of the Prime Minister’s position during debate in the House of Representatives: ‘Though prepared to make some concessions, Menzies was steely on the central features of the bill and guillotined much of it through the House.’ Eventually, Menzies gave ground and allowed an amendment to clause 9 which provided for the establishment of a committee with a limited power to consider a proposed declaration before the advice was given to the Governor-General. As the public controversy widened, the Menzies government enlarged the group of outside counsel retained to advise the Commonwealth in relation to the Bill and in anticipation of litigation. In the deadlock which developed between the House of Representatives and the Senate, Ewens and Comans were required to draft amendments proposed both by the government and by the opposition.
In early May 1950, the Deputy Crown Solicitor in Sydney sounded out Garfield Edward John Barwick KC as to his availability to act for the Commonwealth. Barwick was born in 1903 and had taken silk in 1941. By 1945, he was considered by many in the legal profession to be the leader of the Bar if not in the Commonwealth then certainly in New South Wales. And, as 1949 ended, Barwick was a hero of the mercantile world for having been at the forefront of the successful assault on the bank nationalisation legislation when he led the team of counsel acting for the Bank of New South Wales and the other Australian banks. However, for a short time in the first week of May 1950, uncertainty arose as to Barwick’s availability to act for the Commonwealth. It was a measure of Barwick’s professional standing that on 5 May 1950, the Deputy Crown Solicitor informed Bailey that Barwick’s (barristers’) clerk in Sydney had intimated that the Sydney solicitor, Christian Jollie-Smith, who was closely connected to the CPA and who had briefed Barwick on behalf of a client in a High Court case in 1946 arising from a dispute inside the Australian Workers Union, had made an approach to retain Barwick in connection with the proposed Dissolution Act. His clerk had told the Deputy Crown Solicitor that he thought that Barwick would prefer to be retained by the Commonwealth and the Crown Solicitor wanted to know if he should send a cable to Barwick in that regard. Bailey’s cautious response was to instruct the Crown Solicitor to do so if Barwick’s clerk thought that was the best course.
On 3 May 1950, the Deputy Commonwealth Crown Solicitor in Melbourne delivered general retainers in connection with the proposed Dissolution Act to P. D. Phillips KC, Stanley Lewis KC, Gregory Gowans KC, and Douglas Ian Menzies KC (the Prime Minister’s cousin), all of the Victorian Bar.
Phillips had been active in the Young Nationalists and was a well-known commentator on public affairs. A close friend of Menzies, he had quickly risen to prominence at the Victorian Bar and had taken silk in 1946. He had been a member of the large group of counsel who, led by Attorney-General Evatt, had unsuccessfully appeared for the Commonwealth in the Bank nationalisation case in the High Court of Australia in 1948 and before the Judicial Committee of the Privy Council in London in 1949. On 20 October 1950, the day on which Governor-General McKell assented to the Dissolution Act, the Prime Minister announced that Phillips had been appointed to the committee of five persons established by section 9 of the Act to consider proposed advice by the Executive Council to the Governor-General to make a declaration under section 9. It was, however, a short-lived appointment. Later on the same day, Menzies stated that Phillips had withdrawn from the advisory committee because the government wished to brief him to appear for the Commonwealth in the challenge to the validity of the Act which had already been issued in the High Court.
Stanley Lewis, a close friend of Bailey, was the eldest lawyer. He had been admitted to practise in 1900 and had not taken silk until March 1949. He was well known to Menzies and had been practising in the then Commonwealth Court of Conciliation and Arbitration for more than three decades. He was briefed because of his expertise in industrial law and, as with McInerney, because of his familiarity with the large body of evidence heard by the Victorian Royal Commission in 1949. Urban Gregory Gowans, who had also been a member of Evatt’s team in the Bank nationalisation case, and Douglas Menzies, who had appeared for the State of Victoria in that case, had both taken silk in 1949.
Mr Justice Geoffrey Sandford Reed of the Supreme Court of South Australia, the inaugural Director-General of the Australian Security Intelligence Organisation (ASIO) which had been established by the Chifley government in March 1949, was also consulted early in the drafting process, but by June 1950 Reed, whose ASIO appointment was nearing its end, was resisting attempts by Bailey to express opinions on the Bill and told Spicer what he had stated on a number of occasions, namely, that he regarded it as outside the scope of his function to give advice on the policy of the proposed legislation, or to suggest amendments to the Bill.
And last, but by no means least, there was the Prime Minister himself. Menzies had signed the Victorian Bar Roll in 1919 and had achieved immediate stellar success as a junior barrister when he appeared for the successful union in the Engineers case in 1920 in which the High Court had established the fundamental rule for the interpretation of the Constitution’s allocation of legislative power to the Commonwealth Parliament. Menzies had taken silk in 1929. He was well acquainted with the leaders of the Victorian and New South Wales Bars, both small and close-knit hierarchical communities, and after the Curtin ALP government was formed in 1941 he had resumed practice at the Victorian Bar. As a lawyer-politician in Victoria in the 1930s, Menzies had been close to Bailey, Phillips and Spicer through their activities in the Young Nationalist Organisation. If he was one step removed from the day-to-day Bill-drafting process in 1950, he had the advantage of knowing all the members of the drafting team and seems to have offered comments as the successive drafts were formulated for Cabinet approval. The surviving archival record reveals that the Prime Minister played a hands-on role in providing Ewens with instructions on the re-casting of clauses 9 and 16 of the Bill.
The Drafting Instructions
That part of the coalition election promise which involved the imposition of limited disqualifications on individual communists did not call for a long and complicated Bill. Looked at in isolation, the drafting work could have been done very promptly. When legislation has to be enacted urgently, the drafting process has to be adjusted accordingly. This had recently been demonstrated when the Parliament passed the National Emergency (Coal Strike) Act 1949 which Ewens and Bailey (and probably Comans and other departmental lawyers) had produced at short notice. It was the use of a preamble asserting in summary form the case for outlawing of the CPA (embodied in clause 4 of the Bill) which involved such a large amount of painstaking work. The task of assembling the evidence to make good the assertions in the preamble was assigned to the ASIO, which produced lengthy papers on communist theory and practice, and the influence which the CPA exerted in the trade union movement. It also made use of documents seized during the joint ASIO/Commonwealth police raid on CPA headquarters in Sydney on 8 July 1949. In March 1950, Bailey wrote to Mr Justice Reed requesting, for the purposes of disqualifying CPA officials and members from certain offices, detailed instructions on fifty-three persons considered to be the leading communists in Australia.
McInerney and Lewis guided the extensive use of the material which had been received by the Victorian Royal Commission, which had occupied 154 sitting days, heard 159 witnesses and received 1,083 exhibits in evidence. By the time the drafting process was under way, the lawyers also had the benefit of the findings adverse to the CPA (limited though they were) contained in Mr Justice Lowe’s report which was tabled in the Victorian Parliament in February 1950.
The lawyers were also assisted by information provided by the United States Federal Bureau of Investigation, and by the South African government which supplied for the Australian government’s secret information a copy of its draft Bill to combat terrorism which had not yet been finally approved by the South African Cabinet. In addition, use was made of the report of the Canadian Royal Commission prompted by the defection of the Soviet diplomat, Igor Gouzenko, in 1945, and evidence adduced at the long and tumultuous trial of the Smith Act prosecution of the leaders of the Communist Party of the United States of America before United States District Court Judge Harold Medina in New York City in 1949.
The Bill Evolves
The Cabinet first considered the proposed outlawing of the CPA on 3 March 1950 with the benefit of Holt’s seven-page submission. It returned to the subject on 7 and 8 March. By 20 March 1950, a draft Bill had been prepared. On that day, Bailey sent a copy of the Bill, which he described as ‘a very rough first draft’, to Stanley Lewis KC, noting in particular:
the Preamble … had been done under conditions of the greatest haste, and without opportunity even for preliminary revision. Nobody therefore stands firmly for any particular phrase. You will notice also that we have based ourselves mainly on the defence power, but it is our intention to add something in the way of a recital to bring in the commerce power as well, and perhaps others. Possibly the most important thing to consider at the present stage is the recitals. Both from the political and the legal point of view they are of the greatest importance, as I think you will agree. But in this first draft we have gone on the principle rather of asserting that which we would like to be able to establish, rather than establishing that which we are at present in a position to establish. It is in this field that we think that you may be able to help us most. (emphasis in original)
Further printed drafts of the Bill were produced on 6 and 21 April. On the latter occasion, the Cabinet resolved that the Bill be introduced on 27 April. After the Bill had been introduced, proposed government amendments were discussed in Cabinet on 17 May and 6 and 16 June 1950.
On 5 May 1950, Snelling wrote to Bailey to express his concern that a declaration by the Governor-General under clause 9 might be invalid if it could not be established that the person was not in fact a person to whom the clause applied. Bailey discussed Snelling’s suggestion with Ewens who expressed the opinion that the intention was sufficiently clear in the Bill as it stood and it was decided to take whatever risk there was in leaving the clause to stand as drafted.
Support for the lawyers also came from Detective-Inspector Alfred Amos Wilks of the Commonwealth Investigation Service who had been in charge of the raid on Marx House in Sydney on 8 July 1949. One of his suggestions was based on difficulties which were foreseen when the Bill for the National Emergency (Coal Strike) Act 1949 was being hastily drafted. Spicer approved a short paper prepared by D. M. Cleland, a barrister and director of the federal secretariat of the Liberal Party of Australia, which explained why the reverse onus of proof provision of the Bill was necessary. In a letter dated 22 May 1950, A. R. Wiltshire, Chairman of the Associated Banks (Victoria), drew attention to what appeared to his members and their advisers to be a deficiency in clause 7 of the Bill. A Queensland state parliamentarian, T. A. Hiley, wrote to Menzies at the end of May 1950 offering the suggestion (which, as alluded to above, was accepted) that one way of meeting the controversy raging about the onus of proof reversal in clause 9 of the Bill would be to legislate for an advisory committee which would consider proposed declarations.
It is apparent that from the outset Bailey took the view that the Bill should contain a preamble setting out in summary form the evidentiary basis for the Parliament’s assessment that the outlawing of the CPA was a necessity. He was supported in this view, to some extent, by the joint advice of Windeyer and Snelling. But the utility of a preamble was not a view shared by all the lawyers. There is a handwritten note in one of Bailey’s files that suggests that in discussions with Mr Justice Reed, the judge expressed the opinion that the then draft version of the preamble was ‘a bit doctrinaire’ and that the Bill would be better without any recitals. There was the broad problem that the recitals would be difficult to prove, and in the case of the assertion that the CPA engaged in espionage it could not possibly be proved. It is open to infer that two very sensitive elements of the expected problems of proof were the government’s inability to disclose the identity of persons operating within or very close to the CPA who supplied information to Commonwealth authorities on a confidential basis, and the broader need to protect intelligence-gathering sources and methods. Accommodating this sensitivity came at a price.
Ewens also expressed concern about the constitutional and political problems of proving that the CPA and its organisations were subversive, that they advocated the overthrow of government other than by constitutional means, and that the property of the CPA had probably been ‘salted away’; that such difficulties made it worse than ever to go after individuals, that targeted individuals would probably appeal and that there would be great difficulties of proof. Oddly, there was some speculation within government circles that the validity of the proposed ban would not be contested.
In a note prepared on 18 April 1950, Ewens recorded that he was far from convinced that the work on the proposed preamble had been productive. The task lacked ‘a logical statement of what the preamble is setting out to establish’. Assertions about communist activities outside Australia endangering the defence of Australia or the maintenance of the Australian Constitution failed to support the operative provisions of the Act, which dealt only with the Australian Communist Party.
Bailey acknowledged that the Commonwealth had not been able to establish any attempt by the CPA at armed revolution or to overthrow the state by violence; nor that it was Russian-controlled. The preamble in the Bill as passed and assented, which is reproduced in the appendix below, had gone through many versions before the Bill was introduced in the Parliament.
The Failure of the Preamble
The parliamentary deadlock which the Bill brought about was resolved in October when the federal executive of the ALP instructed the parliamentary party to withdraw its opposition to the Bill. Governor-General McKell gave the royal assent to the Bill on the morning of Friday, 20 October 1950. Later that same day, eight actions were issued out of the High Court of Australia and in Melbourne in the afternoon Mr Justice Owen Dixon granted interim injunctions restraining the Commonwealth and its Ministers of State and agents from publishing any declaration under sections 5 or 9 of the Dissolution Act and imposing a partial restriction on the Commonwealth seeking to obtain search warrants in connection with enforcement of the Act.
When the constitutional challenge to the Dissolution Act was called on for hearing in the High Court of Australia on 14 November 1950, Barwick led the team of ten counsel for the Commonwealth, which included Windeyer, Lewis and McInerney. In the face of a spirited but misconceived attack by Harold Holt on his supposed unethical conduct in accepting the brief, Dr H. V. Evatt KC appeared for the Waterside Workers’ Federation and led the attack on the validity of the Dissolution Act. The hearing of the cases occupied twenty-four days in November and December 1950. At one stage in the hearing, Barwick reported to Bailey that he thought that the Commonwealth would have to go into evidence (that situation did not crystallise) and that he wanted Snelling to work day and night going through all the documents seized from the CPA.
Barwick’s argument before the High Court was that if the Court did not have any information to enable it to decide whether a law was one with respect to some subject matter ‘then the last resort is that the Parliamentary assertion would be respected’. This would not involve, he contended, the Parliament arrogating to itself power that it did not have. The outcome of constitutional cases can be uniquely difficult to predict. At the conclusion of the hearing on 19 December 1950, Barwick’s assessment was that the plaintiffs would fail. Windeyer thought it probable that the Act would, by a majority, be held valid, but that if, however, the Act was held invalid, it would be because the assertions in the preamble would not have been proved. It seems that H. V. Evatt, displaying his own distinct self-assuredness, was never in any doubt that the High Court would find that the Dissolution Act was invalid. When the High Court reserved its decision on 19 December 1950, Barwick’s optimism might be thought to have drawn support from Australia’s participation in the United Nations Security Council-approved military action in Korea.
On 9 March 1951, the High Court in a six to one decision (Chief Justice Latham dissenting) held that the Act was entirely unconstitutional. The Parliament could not conclusively ‘recite itself’ into legislative power. With his usual insight, the late Professor George Winterton argued convincingly that the High Court’s decision remained probably its most important because of what it achieved in the struggle for preservation of the rule of law in Australia in the early Cold War years.
Appendix: Preamble to the Communist Party Dissolution Act 1950
Whereas the Constitution empowers the Parliament to make laws for the peace, order and good government of the Commonwealth with respect to the naval and military defence of the Constitution and of the several States;
And whereas under the Constitution the executive power of the Commonwealth is vested in the King and is exercisable by the Governor-General as the King’s representative, and extends to the execution and maintenance of the Constitution and of the laws of the Commonwealth;
And whereas the Commonwealth also empowers the Parliament to make laws for the peace, order and good government of the Commonwealth with respect to matters incidental to the execution of any power vested by the Constitution in the Parliament of the Commonwealth or in the Government of the Commonwealth;
And whereas the Australian Communist Party, in accordance with the basic theory of communism, as expounded by Marx and Lenin, engages in activities or operations designed to assist or accelerate the coming of a revolutionary situation, in which the Australian Communist Party, acting as a revolutionary minority, would be able to seize power and establish a dictatorship of the proletariat;
And whereas the Australian Communist Party also engages in activities or operations designed to bring about the overthrow or dislocation of the established system of government in Australia and the attainment of economic, industrial or political ends by force, violence, intimidation or fraudulent practices;
And whereas the Australian Communist Party is an integral part of the world communist revolutionary movement, which, in the King’s dominions and elsewhere, engages in espionage and sabotage and in activities or operations of a treasonable or subversive nature and also engages in activities or operations similar to those, or having an object similar to the object of those, referred to in the last two preceding paragraphs of this preamble;
And whereas certain industries are vital to the security and defence of Australia (including the coal-mining industry, the iron and steel industry, the engineering industry, the building industry, the transport industry and the power industry);
And whereas activities or operations of, or encouraged by, the Australian Communist Party, and activities or operations of, or encouraged by, members or officers of that party and other persons who are communists, are designed to cause, by means of strikes or stoppages of work, and have, by those means, caused dislocation, disruption or retardation of production or work in those vital industries;
And whereas it is necessary, for the security and defence of Australia and for the execution and maintenance of the Constitution and of the laws of the Commonwealth, that the Australian Communist Party, and bodies of persons affiliated with that party, should be dissolved and their property forfeited to the Commonwealth, and that members or officers of that party or of any of those bodies and other persons who are communists should be disqualified from employment by the Commonwealth and from holding office in an industrial organization a substantial number of whose members are engaged in a vital industry.