Communist Party Case

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Citation: (1951) 83 CLR 1.

This information can be found in the Textbook: Blackshield, T, Williams G, Australian Constitutional Law & Theory: Commentary and Materials (6th ed, Federation Press, 2014), pp.

Background facts

  • The Australian government attempted to outlaw the Communist Party.
  • The preamble/recitals of the relevant act stated that the Communist Party are seeking a violent revolution and an overthrow of the government, thus making it necessary for the government to oust it.
  • The government relied on the defence power to make this law.

Legal Issues


  • Recitals: this was an attempt of the Parliament to talk itself into power. The recitals cannot be used in order to establish the factual situation of Australia's security - the court looks at the factual situation and does not pay any attention to the 'deemed situation' in the recitals.
    • In effect, Parliament took on the role of courts by simply declaring the communist party guilty.
  • The court noted that the defence power is elastic - it waxes and wanes. It can also be said that it has primary and secondary aspects (Fullagar J)- primary being aspects which are directly related to defence (fortifications, conscription etc) and secondary being aspects which may relate indirectly in times of crisis (eg, manufacturing, employment etc) and more generally just extensions of the defence power.
  • The secondary aspect of the power, or the "wide" application of it, is only permissible in times of crisis.
  • In the present case, the purported use of the defence power comes within the wide or secondary aspect of the power. However, the Court was not convinced that the factual conditions of Australia justify the activation of the secondary aspect of the power (ie, no sufficient threat, no proportionality).
    • The court decided that the primary aspect of the power is to protect against external threats. Protection against internal threats requires the secondary aspect of the power.
    • The court determined that it was peacetime in Australia (despite the fact it was in the cold war).
  • Exclusion of judicial review: in addition, the act sought to oust judicial review for the Governor General's discretions, and the court found that unconstitutional as well.
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