Menzies turned referendum loss to long-term advantage

The PM’s battle to ban communism in Australia 70 years ago had major implications for his leadership style and substance.

"Remember Communism is Treason" Sign put on a tree in Brisbane in 1949. by R.G.Menzies Leader of the Liberal Party of Australia .

Seventy years ago, on September 22, 1951, Australians voted on whether to change the Constitution to ban communism. The campaign was held in a climate of fear. Many Australians believed the nation had been infiltrated by communists and that another world war was looming, this time with the Soviet Union. Others saw the referendum as threatening to undermine our most basic values by introducing a police state.

The story of the referendum began almost two years before, in 1949, with the swearing in of the Liberal-Country Party government led by Robert Menzies. The coalition partners went to that election with a policy of banning the Australian Communist Party.

The Country Party, for example, asserted that it “regards the Australian communist in the same category as a venomous snake – to be killed before it kills”.

Menzies’ first major measure in office was the Communist Party Dissolution Bill. He saw it as necessary to combat communism in Australia, and as a political opportunity to split the Labor Party. His Bill proposed to dissolve the Australian Communist Party, prosecute its members and purge them from the public service. It also enabled the governor-general to declare other organisations unlawful that supported or advocated communism, were affiliated with the party or had policies substantially shaped by members of the party or “communists”. Once unlawful, an association would be dissolved.

The Bill also targeted people for their beliefs. It permitted the governor-general to declare a person to be a “communist” or a member of the party. Once declared, a person could not hold office in the public service or in industries vital to the security and defence of Australia. A person wishing to contest this bore the burden of proving that they were not a communist.

Labor initially opposed the Bill, with opposition leader Ben Chifley launching a stinging attack that it “opens the door for 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”. However, it became clear that Menzies would call a double dissolution election if the Bill did not pass. Fearing this, Labor’s federal executive directed its members to cease their opposition. The Bill was passed unamended.

Sir Robert Menzies in 1966. Picture: Ron Iredale.

The Australian Communist Party, 10 unions and communist union officials responded by launching a High Court challenge. In a move that astonished many, HV Evatt, a former High Court judge and deputy leader of the Labor opposition, accepted a brief from the Waterside Workers Federation. As government MP Harold Holt stated, “rightly or wrongly the people of Australia will read into the appearance of the right honourable gentleman a sympathy and support for the cause which he seeks to defend”. JA Ferguson, the NSW president of the Labor Party, said Evatt’s acceptance of the brief was “ethically correct, professionally sound, and politically very, very foolish”.

On March 9, 1951, Evatt triumphed, with the High Court striking down the Dissolution Act by 6:1. The court delivered one of its most important decisions in declaring that the Commonwealth could not give the governor-general an unchecked discretion to declare organisations unlawful and people to be communists.

Ten days later Menzies called a double dissolution election. The legal reason for the dissolution was the Senate’s double failure to pass the Commonwealth Bank Bill. But the political reason was clear: Menzies wanted further electoral backing for his anti-communist policies. At the election on April 28, 1951, communism was a major issue. The Liberal Party’s campaign slogan in Tasmania was “Menzies or Moscow”. Evatt was opposed in his seat by World War II hero Nancy Wake, who campaigned on the slogan “I am the defender of freedom; Dr Evatt is the defender of communism”. Evatt retained his seat by 243 votes, and the Menzies government was returned.

Menzies next sought to overturn the High Court’s decision by changing the Constitution. He argued that the new section should be added to allow the Commonwealth to legislate with respect to communists and communism and to enact the Dissolution Act. Evatt, now leader of the opposition following Chifley’s death, described the amendment as “one of the most dangerous measures that has ever been submitted to the legislature of an English-speaking people”. Holt responded by saying: “The House has just been listening to the most notable defender of communism in Australia.”

With the government controlling parliament, the proposal passed and a poll date was set for September 22, 1951, leaving time for a six-week campaign. Polls showed 80 per cent of the community supporting a yes vote.

Evatt invested his considerable energy into the No case. He argued the referendum would grant the Commonwealth despotic powers that could be used to deal indiscriminately with the enemies of the government. He argued the change was at odds with fundamental principles of British justice and associated the proposal and Menzies with fascist Germany. His arguments made headway. Even vehement anti-communists such as Jack Lang, Archbishop Daniel Mannix and Laurie Short came to back his position.

The campaign was wild and raucous. Menzies’ speeches were repeatedly shouted down by interjectors. In a meeting in Hurstville, in Sydney, he was confronted by interruptions of “Heil Hitler”. Menzies saw this as a plus: these interjectors, he said, were communists seeking to deny free speech and destroy liberty. After being heckled in a meeting in Brisbane of 3000 people, Menzies declared: “It is wonderful that the only real supporters for the ‘No’ case in this campaign that I have been able to find have been communists and their hangers on.”

The campaign split the major political parties. A leading Young Liberal, Alan Missen, later to become a senator, wrote in the Argus opposing the referendum: it was “a totalitarian power to be given for all time”. Ivor Greenwood, a prominent member of the Liberal Party, who was later to serve as a minister in both the McMahon and Fraser governments, described the referendum as “completely contrary to all that liberalism stands for”. Labor was also divided. It had a historical connection to Catholics, and many Catholics, following the Vatican’s strict anti-communist views, were viscerally opposed to communism.

The referendum was defeated by a narrow margin, with the national Yes of 49.4 per cent. All up 2,317,927 Yes votes were cast to 2,370,009 No votes.

Majorities were achieved only in Queensland, Western Australia and Tasmania.

Evatt celebrated his victory, commenting that “I regard the result as more important than half a dozen general elections”. It was his finest hour, but also spelt the end of his ambitions to become prime minister. He had become indelibly associated with communism in the minds of many voters and the Labor Party split under his leadership in 1955.

Menzies was bitter about his referendum loss, accusing the “no” case of misleading the public with a “wicked and unscrupulous” campaign. He had suffered a rebuff, but over the following years turned public fear of communism to his electoral advantage.

His government never held another referendum, but he went on to become the nation’s longest-serving prime minister.

George Williams is a Deputy Vice-Chancellor and Professor of Law at the University of NSW. He discusses the referendum on Afternoon Light, the podcast of the Robert Menzies Institute.