Prof George Williams
Faculty of Law, University of New South Wales
Paper delivered to Symposium:
The Communist Party Dissolution Bill – 60 Years On
Canberra Region Branch
Australian Society for the Study of Labour History, 8 May 2010
Robert Menzies sought to rid Australia of communism through the Communist Party Dissolution Act 1950 and a subsequent referendum.
The hysteria of the early 1950s resembled a religious fervour in its intensity. In a speech on 23 May 1950, Ben Chifley summed up the feelings of the time:
This measure [the Dissolution Act] will to some degree be administered in an atmosphere of national hysteria, worked up by politicians and other persons, and by the press … There is great danger that the hysteria and fear complex that has been aroused may result in grave injustices being done to individuals. The multitude can make grave mistakes. It was the multitude, by its vote, that sent Christ to be crucified.
The Dissolution Act reflected this.
The Dissolution Act
The drafters of the Dissolution Act drew upon many sources. Michael Kirby has identified the United States’ Smith Act 1946, South Africa’s Suppression of Communism Act 1950 and Australia’s Unlawful Associations Act 1916 as probable influences.
Among the more remarkable features of the Dissolution Act were the nine recitals that prefaced the operative sections of the legislation. The recitals were included in order to shore up the weak constitutional foundations of the Act. There were obvious constitutional difficulties with banning the Australian Communist Party (ACP) and imposing restrictions upon communists under the Commonwealth’s defence power in a time of relative peace.
Recitals four to eight set out Parliament’s view of communism and the ACP. For example, recital four provided:
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
Section 3 of the Dissolution Act defined ‘communist’ as ‘a person who supports or advocates the objectives, policies, teachings, principles or practices of communism, as expounded by Marx and Lenin.’
This definition raised problems of interpretation. The imprecision of the language meant that the potential denotation was enormous. A ‘communist’ might have been a socialist, like many members of the Labor Party and many unionists, who supported or advocated one or more aspects of Marx’s teachings. Read literally, a person who supported only the objectives of Marx or Lenin was a ‘communist’.
The definition of ‘communist’ caused members of the Labor Party, especially in its left wing, considerable concern. Menzies had on prior occasions sought to link the socialist agenda of the Labor Party with the basic tenets of communism. For example, in commenting upon Labor’s attempt to nationalise Australian banking in 1947, Menzies stated:
further consideration of the facts reveal that this socialisation measure is no example of unpremeditated illegitimacy. It is, on the contrary, the normal child of long-considered socialist policy which, in Australia, for the last 25 years, has been deeply influenced by communist and revolutionary ideas.
On another occasion Menzies argued ‘Communism has the same basic aims as Socialism. Only the means are different. The resultant state would be identical under either system.’ If Menzies was correct, it is difficult to envisage that many members of the Labor Party could have escaped the ambit of Dissolution Act.
Section 4 of the Dissolution Act declared the ACP to be an unlawful association, provided for its dissolution and enabled the appointment of a receiver to manage its property.
The machinery for declarations by the Governor General that organisations, other than the ACP, were unlawful was provided by section 5. The provision targeted bodies that supported or advocated communism, were affiliated with the ACP or whose policies were substantially shaped by members of the ACP or communists. Once unlawful, an association would be dissolved under section 6 and a receiver appointed under section 8.
Section 5 clearly included organisations that may have been substantially controlled by communists but did not espouse communist ideology. Bodies like the communist controlled Peace Council, which achieved wide non-communist support, could have been proscribed. Given the indeterminate boundaries of political doctrine, a wide variety of left-orientated organisations might also have been declared.
Even the ACTU might have been banned under section 5. It was the belief of some registered unions that deregistration followed by declaration was ‘only a short step’ away. The President of the ACTU, Albert Monk, argued in 1950:
Experience throughout the world has shown that the banning of one political party by a Government, irrespective of political ideology, has always been a prelude to suppression of other political parties and the smashing of Trade Unions with imprisonment of Trade Union Officials, in many countries without trial.
Section 7(1) provided that a person would be liable to imprisonment for five years if he or she knowingly committed acts that included continuing to operate as a member or officer of an unlawful association or carrying or displaying anything indicating that he or she was in any way associated with an unlawful association. Section 7 was a blatant infringement of civil liberties. For example, a person became liable to imprisonment for wearing a badge with the words ‘Communist Party Conference 1948’ or ‘The Australian Peace Council stands for peace in Korea’.
Under section 9, the Governor General could declare any person who was a communist or member of the ACP in the same manner as laid out for organisations in section 5. A sanction was to be applied not according to a person’s acts but according a person’s beliefs. Once declared, a person could not hold office in the Commonwealth public service or in industries declared by the Governor General to be vital to the security and defence of Australia (section 10). Should a person wish to contest a declaration by the Governor General, he or she could do so under section 9(4), but ‘the burden shall be upon him to prove that he is not a person to whom this section applies’ (section 9(5)).
The Passage of the Bill Through Parliament
The Dissolution Bill caused division in the Labor Party as its members and factions struggled to reach a unified approach. The increasingly powerful Victorian faction favoured active and unqualified support for the Bill, while a larger group of members, including Chifley and Evatt, preferred a policy of passive and qualified support. Initially, Chifley and Evatt were able to achieve Caucus acceptance of their view.
The passage of the Bill through the House of Representatives was a bitter affair. Labor members were subjected to constant slander from the Government members, while the Government was often subject to taunts from the opposition alleging an association with fascist and Nazi influences.
Menzies’ second reading speech was a superb exercise in rhetoric and persuasion. He spoke for nearly an hour and a half to the frequent applause of Government members with only two inaudible interjections from the opposition. The Bill was justified upon the premise of a world-wide communist infiltration of democratic societies.
Menzies cited examples of the dangers of communism by referring to works such as The Foundations of Leninism by Joseph Stalin and a pamphlet by Lance Sharkey. By quoting communist propaganda Menzies cultivated the anxieties of Australians. Frequent and out of context reference to phrases such as ‘dictatorship of the proletariat’, ‘violent proletarian revolution’ and ‘overthrow of the bourgeoisie’ could only harden the minds of those lacking the knowledge to comprehend the communist dogma.
In his second reading speech Menzies listed 53 persons whom he asserted were communists in positions of authority in Australian unions. This was intended to provide concrete evidence to the public that there were numerous communists in powerful positions and that, as a consequence, Australia’s well-being was threatened. The public, still remembering the 1949 coal strike, took little convincing.
Menzies later admitted to the Parliament that five of the persons ‘named’ on 27 April 1950 were not communists. This error served to illustrate the dangers inherent in Menzies’ onslaught upon communism given that a person declared to be a communist bore the onus of proving his or her own innocence and had no recourse to a jury trial. Menzies response to this argument was:
Does anyone really believe that in such a matter, which concerns our very existence, the opinion of nineteen of the King’s Ministers, responsible for public safety, should be set aside by the decision, or rather by the doubts, of one man or six or twelve elected to jury service?
The support Menzies gained from the press added credibility to his assertions. The Sydney Morning Herald published the following headline on its front page on 28 April 1950, the day after Menzies’ second reading speech:
MR. MENZIES MOVES BILL TO OUTLAW REDS
Will Deal With King’s Enemies
In the same edition, the Sydney Morning Herald stated in its editorial ‘The moral and political justification for the measure [the Dissolution Bill] is stated in its ‘recitals’ – a series of devastating and unanswerable propositions, indicting the communist conspiracy.’
As a foreboding of subsequent years, Menzies brilliantly exploited the divisions that emerged within the Labor Party over the Bill. After listening to Menzies’ second reading speech Chifley commented ‘This is a political measure aimed at splitting the Labour Movement’.
The Labor Party regained some political ground in Chifley’s reply to Menzies’ speech. Despite frequent interjections by Government members, Chifley delivered an impassioned address devised to hold his Party together as much as to attack the legislation. Chifley’s reaction to the Bill is summed up by this passage of his speech:
It opens the door for the liar, the perjurer and the pimp to make charges and damn men’s reputations and to do so in secret without having either to substantiate or prove any charges they might make.
Labor’s approach to the Bill was to support amendments designed to return the onus of proof to the State where a declaration by the Governor General was contested. Evatt handled the lion’s share of the battle against the Government and fought for the amendments tirelessly. The alterations were passed when the Bill reached the Labor controlled Senate.
The Government rejected the amendments despite the fact that the changes would have diminished the Bill’s prejudicial effect on civil liberties without substantially altering its effect on communism. Despite this, the Bill was laid aside on 23 June 1950. By rejecting the amendments and forcing the Labor Party to either take the Bill as it stood or reject the Bill as a whole, Menzies heightened the tension and division within the Labor Party. This demonstrated that the Bill involved more than an attack on communism. It represented an opportunity for Menzies to damage the Labor party.
On 29 September 1950, the Dissolution Bill was reintroduced into the House of Representatives. This time the Federal Executive of the Labor Party caved in and on 16 October 1950 passed what became known as the ‘chicken’ resolution. Mounting public and Party pressures and the possibility of a double dissolution election being fought upon the Bill led to the change of heart. The Federal Executive stated that:
The federal executive has decided that, to contest the sincerity of the Menzies Government before the people, and to give the lie to its false and slanderous allegations against the Labor Party, that the Bill should be passed in the form in which it is now before the Senate.
This resolution bound Labor Senators to the humiliation of allowing the Dissolution Bill to pass unamended through the Senate. The Bill was passed by Parliament on 19 October 1950 and became law with the Governor General’s assent the next day.
The High Court Challenge
The ACP, ten unions and several communist union officials took little time to challenge the validity of the Dissolution Act. On the same day that the Act came into force eight actions were commenced in the High Court against the Commonwealth and various persons connected with the Act. Each action sought to obtain a declaration that the Act was not within the constitutional competence of the Commonwealth.
Evatt, then the Deputy Leader of the Opposition, astonished all concerned by announcing on 25 October 1950 that he would represent the communist-led Waterside Workers’ Federation and its communist official, James Healy, in the High Court challenge to the Dissolution Act. Chifley must have been deeply concerned about the effect that Evatt’s decision would have on the deepening divisions in the Labor Party. The Victorian Branch passed a motion condemning Evatt. However, in Parliament Chifley vigorously supported Evatt as Chifley viewed Evatt’s determination to fight the Act as being consistent with Evatt’s long championship of civil liberties.
Harold Holt, for the Government, summed up what could be the only result of Evatt’s decision ‘rightly or wrongly the people of Australia will read into the appearance of the right honourable gentleman a sympathy and support for the cause which he seeks to defend.’ JA Ferguson, the New South Wales President of the Labor Party, said that Evatt’s acceptance of the brief was ‘ethically correct, professionally sound, and politically very, very foolish.’
On March 9 1951 the High Court, with Chief Justice Latham dissenting, declared the Act to be invalid on the basis that it was beyond the power of the Federal Parliament to suppress an organisation under its defence power on its own opinion in a time of peace. In a departure from the legalism pervading the decision, Justice Dixon stated:
History and not only ancient history, shows that in countries where democratic institutions have been unconstitutionally superseded, it has been done not seldom by those holding the executive power.
In the wake of the High Court’s decision, Menzies declared ‘This is not the end of the fight against communism, it is merely the beginning.’
A week after the High Court’s rebuff, and somewhat ironically, Menzies called a double dissolution of Parliament on the basis of the Senate’s failure to pass a Bill dealing with the Commonwealth Bank. Communism was, however, the issue of the day and was the stick with which Menzies proceeded to beat his Labor opponents.
The Liberal Party’s campaign slogan in Tasmania was ‘Menzies or Moscow’. Menzies won the poll held on 28 April 1951 with a reduced majority in the House of Representatives but with a majority in the Senate. Evatt was opposed in his seat by World War II hero Nancy Wake who campaigned on the slogan ‘I am the defender of freedom; Dr Evatt is the defender of communism’. Evatt retained his seat by 243 votes.
Menzies then sought the power to deal with communism by way of referendum under section 128 of the Constitution. The referendum put to the people of Australia on 22 September 1951 sought to graft section 51A onto the Constitution. Section 51A would have allowed the Commonwealth to legislate with respect to communists and communism, to enact the Dissolution Act and to amend that Act within certain limits. If passed, the ungainly section 51A would have enabled Menzies to legislate with the utmost freedom to suppress communism. The alteration thus posed an even greater threat to political freedom than the Dissolution Act.
Menzies argued for a ‘yes’ vote on the ground that communism had to be countered and that, as the High Court had showed that the Commonwealth did not possess the constitutional power to suppress communism, the Constitution was inadequate and had to be altered. Initially, the referendum proposal attracted massive electoral support.
In Parliament, Evatt, now Leader of the Opposition, described the attempt to amend the Constitution as ‘one of the most dangerous measures that has ever been submitted to the legislature of an English-speaking people.’ Holt, in a now familiar role, responded by saying:
The House has just been listening to the most notable defender of Communism in Australia. The leader of the Opposition has spoken at considerable length and, at times, with some degree of fervour in a role in which this country is becoming increasingly accustomed to see him in both the Parliament and the law courts.
Evatt invested his considerable energy into the fight against the referendum. Despite a lack of support from many sections of the Labor Party, Evatt travelled thousands of kilometres to address numerous meetings. His advocacy for the ‘no’ vote was based less on logic than upon a heartfelt awareness that the referendum proposal contravened fundamental democratic freedoms.
Evatt argued that the referendum proposal would grant the Commonwealth despotic powers that could be used to deal indiscriminately with the enemies of the Government. At times, Evatt sought to associate the proposal with the techniques of Hitler. In four weeks of campaigning Evatt turned the tide of support for a ‘yes’ vote towards a ‘no’ vote. Evatt had tapped the traditional reticence of the Australian people to support constitutional change. Even vehement anti-communists like Jack Lang, Archbishop Daniel Mannix and Laurie Short came to back Evatt’s position.
The referendum failed to gain the support of a majority of electors by a narrow margin, 2,317,927 ‘yes’ votes to 2,370,009 ‘no’ votes. Menzies was bitter about the loss, accusing the proponents of a ‘no’ vote of misleading the public with a ‘wicked and unscrupulous’ campaign.
Evatt won a crucial victory for himself, the Labor Party and Australia by leading the defeat of the referendum. Commenting upon the result he said:
I regard the result as more important than half a dozen general elections. The consequences of a mistaken vote in an election verdict can be retrieved. But an error of judgement in this constitutional alteration would tend to destroy the whole democratic fabric of justice and liberty.
An audio recording of Prof Williams’ talk can be downloaded from the ABC web site http://www.abc.net.au/rn/bigideas/stories/2010/2909638.htm