Seeing Red: The Communist Party Dissolution Act and Referendum 1951: Lessons for Constitutional Reform
The Evatt Foundation
Sydney, December 1991
206 pp. $20
Reviewed by Simon Emsley
The High Court decision to disqualify Phil Cleary as the representative for the people of Wills has raised many a derisive guffaw. The finger has been pointed at the antiquated nature of the Australian constitution. So with a republican tinge in the air, perennial debate about a bill of rights and an uncertain but growing nationalism afoot it's high time to reconsider the place of the High Court. What do we think about it?
Weighing in on the discussion is a collection of essays published by the Evatt Foundation, looking closely at what Barry Jones describes as "Doc" Herbert Evatt's finest hour: his successful challenge to Liberal PM Bob Menzies' attempt to ban the Communist Party of Australia (CPA) in the early 1950s.
Seeing Red gives the non-specialist an opportunity to consider the present place of the High Court in the political process by looking at one of the court's key liberal decisions in its 90-year history, the decision to rule the Communist Party Dissolution Act unconstitutional.
The Act declared the CPA illegal and empowered the government to seize and dispose of its assets. It allowed for "affiliated" organisations led by members of the party that advocated "Communist principles," to receive the same treatment. The governor-general was empowered to pronounce organisations "affiliated", with an onus on them to disprove affiliation. Individuals declared "Communists" under the Act were to be barred from employment in the Commonwealth public service and disqualified from serving as officials in unions in "vital" industries.
These extreme measures were justified by Menzies in terms of the imminence of World War III and the necessity to put Australia on a war footing. He spoke of Korea as the "common front against Communism" and, in the month prior to the High Court decisions, spoke of the need to reach full preparedness for global war within three years. When six of the seven High Court judges found the Act unconstitutional they were challenging the results of the parliamentary process and the prognosis of inevitable global military conflict.
Those hoping for a conclusive view of the significance of the court's intervention will be disappointed by the various essays in Seeing Red. Here lies the book's strength. While some contributors, such as Justice Michael Kirby, see the High Court's role as crucial, other writers, such as one-time national secretary of the CPA, Laurie Aarons, are more circumspect, seeing the decision and the law as merely one factor in many determining the course of events. It's up to the reader to find home base. Before placing too much faith in the solutions offered by the High Court, let's remember that only a few years before the Dissolution Act decision, the court ruled Labor PM Ben Chifley's legislation to nationalise the banks unconstitutional. Nor need we forget the enthusiasm with which the Chifley administration, with Evatt's assistance, created special legislation to limit the effectiveness of the 1949 coalminers' strike, passing the Coal Emergency Bill the day after the strike was announced.
Essayist George Winterson suggests the Dissolution Act decision conforms to "a general tendency of courts to find in favour of the government in times of crisis then (occasionally) recovering their courage when the danger has passed" — a case of swings and roundabouts.