The Communist Party Case Revisited: Constitutional Review in the 2020 Term
| Date | 01 March 2022 |
| Published date | 01 March 2022 |
| DOI | 10.1177/0067205X211066142 |
| Author | Lisa B Crawford |
| Subject Matter | ARTICLES |
Article
Federal Law Review
2022, Vol. 50(1) 20–39
© The Author(s) 2022
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DOI: 10.1177/0067205X211066142
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The Communist Party Case
Revisited: Constitutional Review in
the 2020 Term
Lisa B Crawford*
Abstract
This article examines the 2020 decisions of the High Court on constitutional law through the lens of
the Communist Party Case, taking the 70th anniversary of that decision as an opportunity to reflect
on the ongoing utility and efficacy of the constitutional principles it espoused. It focuses on the way
in which constitutional meaning may be informed by ordinary legislation, the common law and the
rich backdrop of principles and values against which the Constitution was drafted —particularly,
the rule of law. In doing so, the article highlights enduring questions about the scope of the High
Court’s power to remedy those deficiencies in the Constitution that reveal themselves over time.
Received 23 March 2021
Introduction
This year marks the 70
th
anniversary of the decision of the High Court of Australia in Australian
Communist Party v Commonwealth (‘Communist Party Case’),
1
rightly regarded as one of the most
significant cases in Australian constitutional law. The case considered the constitutional validity of
the Communist Party Dissolution Act 1950 (Cth) (‘Communist Party Dissolution Act’)—a
sweeping piece of legislation that attempted to eradicate the Communist ideology from Australian
public life, by outlawing the Communist Party, confiscating its property and making it an offence to
in any way support its teachings. The Act was prefaced by a set of recitals, which asserted that the
Communist Party posed a threat to the Australian community and that the federal Parliament had
power to enact the Act. But it was found to lack the requisite connection to a head of power, and
hence validity, by a majority of six to one.
The judgment is perhaps most famous for Dixon J’s statement that the rule of law ‘forms an
assumption’of the Constitution.
2
Equally important are the passages of Fullagar J’s judgment where
*Lisa Crawford is a Senior Lecturer in the UNSW, Faculty of Law, Deputy Director of the Gilbert + Tobin Centre of Public
Law, Sydney, NSW, Australia. This article is derived fromthe Keynote Address delivered to the Gilbert + Tobin Centre of
Constitutional Law Conference in February 2021. The author may be contacted at l.b.crawford@unsw.edu.au
2. Ibid 193.
his Honour stated that ‘Parliament cannot recite itself into a field the gates of which are locked
against it by superior law’.
3
It was therefore beside the point that the Preamble to the Communist
Party Dissolution Act asserted that it was within power. Parliament could not pull itself into the
realm of legislative authority by its own bootstraps. Or as Fullagar J put it, ‘a stream cannot rise
higher than its source’.
4
In nature, this truth would be ensured by the laws of physics; in a legal system, some other
constitutional actor was required to play the necessary gatekeeping role. Fullagar J explained that ‘in
our system the principle of Marbury v Madison is accepted as axiomatic’.
5
In other words, the
validity of legislation was for the High Court and the High Court alone to judge. But in doing so, the
Court was also subject to constitutional constraints. In the Communist Party Case, their Honours
stressed that their jurisdiction only extended to enforcing norms found in the Constitution, whether
expressly or implicitly so.Hence, the Communist Party Act was only invalid because it lacked
connection to a head of power, and not because of its egregious effect on civil liberties, which enjoy
only limited constitutional protection in Australian law.
6
These passages from the Communist Party Case have been cited and quoted by the High Court
on numerous occasions since. Together, they paint a picture of Australian constitutionalism which is
both simple and powerful —of a closed system in which all government power is conferred and
limited by a written text, dispassionately interpreted and enforced by an independent judiciary. But
on closer inspection, there are least three further layers of complexity.
7
The first is that the Constitution was not written on a blank slate. As Gordon J explained in Love v
Commonwealth (‘Love’)
8
:
Federation created the Commonwealth of Australia, a polity that ‘sprang from the brain of its begetters
armed and of full stature’. But that polity was asserted and established territorially —on the same
territory, with the same people, that existed prior to the formation of the Commonwealth. It was not
formed out of nothing. And it did not wipe the slate clean of tens of thousands of years of history.
9
This statement alludes not only to the prior existence of the colonies and their common law, but
of the First Nations and their peoples who owned this land long before ideas of a Commonwealth of
Australia ever sprang forth. This is a fact which is not reflected in the Constitution, and it was the
root of the interpretive challenge confronted by the Court in Love: how to interpret a Constitution
which still fails to acknowledge the truth of how Australia came to be?
The second is that the Constitution is interwoven with other sources of law. The stream/source
maxim posits a clear and rigid hierarchy between the Constitution, common law and statute. In
short, the Constitution is superior to all. But the Constitution picked up and incorporated existing
common law concepts. It also refers to topics of juristic classification, the meaning of which has
3. Ibid 263.
4. Ibid 258.
5. Ibid 262.
6. Ibid 261 (Fullagar J), 175, 193, 201-2 (Dixon J). See further Lisa Burton Crawford, The Rule of Law and the Australian
Constitution (Federation Press, 2017) 59.
7. I leave to the side the well-known fact that the Constitution does not expressly state that the Court has authority to review
or invalidate legislative action. Yet, this can be explained on fairly orthodox (one might say, ‘legalistic’) grounds:
Crawford, The Rule of Law and the Australian Constitution (n 6) 54-5.
8. (2020) 94 ALJR 198 (‘Love’).
9. Ibid 267 [350], quoting Re Foreman & Sons Pty Ltd; Uther v Federal Commissioner of Taxation(1947) 74 CLR 508, 530
(Dixon J).
Crawford 21
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