Rejection of the Communist Party Dissolution Act at the Referendum on 22 September 1951

Rejection of the Communist Party Dissolution Act at the Referendum on 22 September 1951

Following an informal discussion in Brisbane on Sunday 31 October, I offered to provide some background materials for activities around the 60th anniversary of the victory. I attach a timeline gong back to the Imperialist war of 1914-18 which will be of most use to activists and to educators. Also attached is an article I published on the 50th anniversary, and which can inform a wider public. While I am more than happy to advise on how to adapt these documents, activists are free to do so without permission.

The article and the timeline can be distributed or posted as deemed useful.

The outline shows that there was nothing new in the attempt to ban the Party. Like previous laws, the 1950 Act aimed to cut the heads off working-class struggle. The difference was the Cold War, and specifically the hunt for Soviet spies through what became known as ‘the case’.

The grounds for commemorating the defeat of the Act include:

> To expose the class basis of bourgeois democracy in which the state organises capital and disorganises labour;

> To enrich our Red-Arm understanding of Australian history in opposition to the bourgeois-liberal version in the national history syllabus;

> To examine how a campaign of organising in workplaces and in communities could succeed; we can draw parallels with the spread of the WorkChoices Campaign, and contrasts with its undermining even before the 2007 elections. The result is that workers are confronted by WorkChoicesLite in FairWork Australia, the ABCC and the undermining of OH&S by the Killard regime;

> To connect the repressive nature of the 1950-51 Act to the provisions of the ABCC and to anti-terrorism regime;

> To move all struggles beyond the domain of parliamentary cretinism into direct involvement by working people.

Humphrey McQueen

10 November 2010

September 22 deserves to be celebrated along with the centenary of Federation. On that day in 1951, defeat of the referendum to ban the Australian Communist Party confirmed that Australia’s temper would remain democratic. Had the vote gone the other way, the presumption of innocence would have been impaired and a star chamber installed.

Labor leader Ben Chifley said the Communist Party Dissolution bill “opens the door to 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”.

As leader of the opposition, Robert Gordon Menzies had resisted a ban until disclosure of a Soviet espionage ring in wartime Canberra caused the United States in mid-1948 to cease sharing classified documents with Australia. This embargo struck at Britain’s nuclear program which needed both US secrets and Australian test sites. Communism, Menzies declared early in 1949, was “high treason”.

After taking office in December, the Liberal-Country Party coalition set out to dissolve the Party and its affiliated organisations, confiscate its properties and deny communists Commonwealth employment or office in most unions.

The Act had first to identify communists. Documented membership would not catch the most wanted. Hence, the government proposed to “declare” people to be communists on the basis of evidence provided by its security service.

September 22 deserves to be celebrated along with the centenary of Federation. On that day in 1951, defeat of the referendum to ban the Australian Communist Party confirmed that Australia’s temper would remain democratic. Had the vote gone the other way, the presumption of innocence would have been impaired and a star chamber installed.

The Act defined a “communist” as anyone who “supports or advocates the objectives, policies, teaching, principles or practices of communism, as expounded by Marx or Lenin”. Menzies’ reiteration that “No Parliament can convert a power over Communists into a power over non-Communists” would have been more convincing had the Act been confined to membership. Instead, “declaration” based on beliefs seemed to “open windows onto men’s souls”.

The slipperiest slide was in the industrial arena. The public’s prime objection to Communists was their causing strikes. Thus, every industrial action was labeled Communist.

Menzies had to break the Communist power in trade unions without provoking the labour movement into fearing that banning the Communists would also remove the right to strike. In a gesture to moderates, the Act outlawed communist control of employer bodies.

After the Labor-controlled Senate finally allowed the bill to pass on 17 October 1950, two Communist-led unions briefed deputy Labor leader Dr H. V. Evatt for a challenge in the High Court.

On 9 March 1951, the judges – four of whom were Menzies appointees – ruled six to one that, although the regulations sought may be valid under the Defence Power, the Cold War did not meet that criterion. In peace time, laws could prohibit only “specific acts”.

When Menzies sought to amend the Constitution by referendum, his lawyers warned against the “dangers of being simple”. It was not enough to ask: “Are you in favour of banning the Commos?”. The government also needed the constitutional authority to amend its invalidated Act. The arcaneness of the 300-word amendment fed suspicions that a “Yes” vote would let the a cabal “declare” anyone it did not like.

Menzies gave credence to that concern by allowing himself to be goaded, while the worse for drink, into hinting that two Labor parliamentarians could easily become “declared” persons.

Newly elected as Federal Labor Leader, Evatt raised the spectre of Belsen-style camps across Australia, an accusation which Menzies characterised as “wicked”. The Commonwealth War Book, meanwhile, prepared to concentrate over 1000 communist leaders in camps on the outbreak of the world war that Menzies warned was less than three years away. The Solicitor-General expected a round-up as soon as the High Court validated the Dissolution Act.

Evatt buttressed his legal and liberal arguments with attacks on the government’s failure to “put value back into the pound”. On September 22, the “No” case attracted 50.48 percent, up from 20 percent seven weeks earlier. The press rekindled speculation that Menzies would resign to lick his wounds on the High Court. ASIO kept working on ‘the case’ and got its next attempt with the Petrov Royal Commission into Espionage of 1954-55.

As a poll of the whole people, the 1951 vote was more democratic than those leading to Federation. The outcome was in line with the rejection of the 1916 and 1917 plebiscites to impose conscription for military service overseas.

Further Reading

Leicester Webb, Communism & Democracy in Australia, a survey of the 1951 referendum, Cheshire, Melbourne, 1954, a well-judged small-l liberal account.

L J Louis, Menzies’ Cold War, a reinterpretation, Red Rag Publications, Carlton North, 2001, a Marxist analysis.

1951 timeline

This timeline is offered as a backdrop to activities proposed around the 60th anniversary of the defeat of the Communist Party Dissolution Act, specifically its rejection at a referendum on 22 September 1951. The outline shows that there was nothing new in the notion of banning the Party. Like previous laws, the 1950 Act aimed to cut the heads off working-class struggle. The difference was the Cold War, and specifically the hunt for Soviet spies through what became known as ‘the case’.

Backdrop

1914 War Precautions Act.

Commonwealth solicitor-general R R Garran recalled in his Prosper the Commonwealth

that the Regulations

were mostly expressed widely to make sure that nothing necessary was omitted, and the result soon was that John Citizen was hardly able to lift a finger without coming under the penumbra of some technical offence.

War Precautions Repeal Act of 1920 kept most of its provisions. In 1929, its provisions were used to convict the secretary of the Melbourne Trades Hall Council of encouraging ‘something in the nature of a strike’.

1916 and 1917 Unlawful Associations Acts aimed at the Industrial Workers of the World.

1920 Crimes Act sedition clauses gave the state powers to ban organisations.

1926 Crimes Act amendments:

The most important provision was sec. 17, which introduced Part IIA into the principal Act. Sections 30A to 30H of that Part declare revolutionary and seditious associations to be unlawful, with incidental provisions as to giving or soliciting contributions for unlawful associations, publications, forfeiture of property and proof of membership. (Geoffrey Sawer, Australian Federal Politics and the Law, 1901-1929)

The changes were aimed at the Communist leadership of the Seamen’s Union. They were driven by Attorney-General John Latham, Chief Justice during the 1951 case to ban the Party, and the only judge to accept the validity of the Act.

1932 Amendments to Crimes Act

empowered the Attorney-General to obtain a declaration of the High Court that a body of persons incorporated or unincorporated constituted an unlawful association under the existing provisions of the Act because it advocated sedition or violent revolution; incidental provisions facilitated proof and in particular enabled the Attorney-General to compel persons and organisations to answer questions and disclose documents in order to prepare his case; executive members of the associations at the date of a declaration were deprived of the right to vote in federal elections for seven years, and members not born in Australia made liable to deportation by order of the Attorney-General. (Geoffrey Sawer, Australian Federal Politics and the Law, 1929-1949)

The Act extended ‘sedition’ to cover ‘promoting feelings of hostility between different classes of His Majesty’s subject so as to endanger the peace, order of good government of the Commonwealth’.

The Party opposed the phoney war effort.

24 May 1940 Communist publications banned

15 June 1940 National Security Regulations provided for the dissolution of subversive associations.

22 June 1941 Nazis invade the USSR.

1942 Opinion Poll gave 44 percent support for the ban.

18 December 1942 bans lifted.

Cold War

5 March 1946 Churchill’s ‘iron curtain’ speech.

12 April 1946 Country Party leader Fadden calls for ban.

1947 UKUSA intelligence sharing agreement.

1947 Venona transcripts reveal passage in Australia of wartime documents to Soviets.

May 1948 US cuts off information to UK on grounds of those leaks.

April 1948 Federal Parliamentary Liberal Party endorses ban on the Party and its front organisations, except on the trade unions that Communists control.

July 1948 Chifley in London to discuss defence, intelligence and weapons testing here.

Fadden exposes the disruption to intelligence flows.

3 September 1948 Australian Secretary of Department of Defence, Shedden, puts ban on the CP top of his agenda.

1948-9 Australian Security and Intelligence Organisation is established to investigate ‘the case’, and to appease the US in order to get intelligence flowing again to the UK. Ferreting out the spies becomes ‘the case’.

mid-October 1948 Menzies in Washington where he is ‘indoctrinated’, that is, told that Venona revealed the existence of spies in Canberra.

1949

19 January Menzies announces his change of mind. His support for a ban follows what he has heard in Washington, and was not just to shore up his leadership of the Liberal Party.

April Victorian Communist official Cecil Sharpley defects to the Herald, which publishes his allegations about ballot-rigging in trade unions.

Royal Commission into Communism set up in Victoria.

Party General Secretary Sharkey is gaoled for three years after saying that ‘Australian workers would welcome Soviet forces pursuing aggressors’.

June-August Communist-led coal strike; Chifley sent troops to mine the coal.

10 December Menzies becomes prime minister. The coalition wins majority in House of Representatives but not in the Senate.

1950

March Menzies uses Crimes Act to end waterfront strike in Brisbane.

??? April Victorian Royal Commissioner tables a mild Report.

27 April Menzies introduces Bill which defined a Communist as

a person who supports or advocates the objectives, policies, teachings, principles or practices of communism, as expounded by Marx and Lenin.

16 May second reading passed on the voices.

May-June Opinion Polls indicate only 13 percent oppose the ban.

Minister for Labour, Harold Holt, explains to a correspondent:

Our bill to outlaw Communism was only part of our programme of legislation in this fight. While making a frontal attack in that way, we also provided legislation to attack the Communists on both flanks. They can now be challenged from within their union citadels by means of officially conducted secret ballots.

June Commonwealth War Book included ‘Operation Alien’ to put up to 1,100 Communists behind barbed wire.

June opinion poll indicates that 56 percent want onus-of-proof to stay with the government.

Menzies responds: ‘We should be compelled to disclose the identity of our agents and put them in the witness box. It would be the end of the Security Service’.

Labor leader Chifley says of the Bill:

It opens the door for the liar, the perjurer and the pimp to make charges n damn men’s reputations and to do so in secret without having either to substantiate or prove any charges they might make.

25 June Open conflict in Korea. Australian forces involved from 29 June.

August Menzies warns that Australians must prepare for a world war in three years.

17 October ALP Federal Executive instructs Labor Caucus to change its position.

19 October Bill passes the Senate.

19 October Ten communist-led unions challenge the Act’s constitutional validity in High Court:

  1. Waterside Workers’ Federation
  2. Australian Coal and Shale Employees’ Federation
  3. Australian Railways Union
  4. Building Workers’ Industrial Union
  5. Amalgamated Engineering Union
  6. Seamen’s Union of Australia
  7. Federated Ironworkers’ Association of Australia
  8. Sheet Metal Workers’ Union
  9. Federated Clerks’ Union of Australia
  10. Federated Ship Painters and Dockers’ Union

The Waterside Workers and Iron Workers briefed deputy Labor leader Evatt.

14 November High Court case opens

1951

February 1951 Radford-Collins Agreement on naval surveillance in the Pacific.

9 March High Court judgement, six to one against, 83 Commonwealth Law Reports 1-285.

The decision was not about civil liberties, which have almost no place in the Constitution. The majority rejected the Act because its provisions denied the High Court’s role as the arbiter between Commonwealth and State powers. The next Chief Justice, Owen Dixon, saw certain provisions as an attack on the Federal principle.

March Conscription re-introduced for 18-year old males under National Service Act.

28 April Double-dissolution election over refusal of Labor majority in Senate to pass Banking Bills.

Menzies Coalition returned with 50.33 percent of the vote, with a loss of five seats.

13 June Labor leader Chifley dies.

Dr H V Evatt elected leader of the Federal Parliamentary Labor Party.

Opinion Poll

July 80 percent in favour

August 73 percent in favour of the ban

15 September 57 percent in favour

1 September ANZUS Treaty signed.

8 September Peace Treaty with Japan.

22 September Referendum to alter Constitution defeated by 50.48 percent. Queensland recorded the lowest ‘NO’ vote at 44.57 percent.

Postscript

December 1951 and February 1952 and May 1957 Opinion Polls show 64 percent support for a ban.

April 1954 Petrov defects, and ‘the case’ opens a new front.

1991 The Communist Party of Australia self-dissolves.

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