SUBVERSION OF THE CONSTITUTION OF AUSTRALIA

The Australian Constitution does not explicitly define “subversion of the constitution” within its text. However, the High Court Case Study of the Communist Party Case (1951) provides insight into how the concept of subversion was interpreted in relation to constitutional powers. In this case, the High Court had to consider whether the Commonwealth had the power to pass laws under the “defence” power in the Constitution to protect against subversion.

The Court ruled that the Commonwealth had legislative power to protect itself from subversion, which could be interpreted under the defence power (section 51(vi)), laws incidental to the executive power (sections 51(xxxix) and 61), or an implied legislative power. However, the Court also determined that Parliament’s statement in the Preamble of the Act about the dangers of communism was not sufficient to justify the law as a law about subversion. Essentially, Parliament could not simply declare an organization guilty of subversion in the preamble of an Act; such a declaration would be unconstitutional.

This case highlights the importance of the rule of law and the limitations on governmental powers as implied in the Australian Constitution. It underscores the principle that the government cannot infringe on constitutional rights and that laws must be justified under the powers granted by the Constitution.