# Australian Communist Party v The Commonwealth (1951, HCA)/McTiernan J

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​McTiernan J. This stated case raises the question whether the Communist Party Dissolution Act 1950 is valid or invalid and also a preliminary question which relates to the recitals forming the part of the preamble of the Act beginning with the fourth recital. This preliminary question is whether the decision of the main question depends on the judicial determination or ascertainment of the facts stated in those recitals. Neither of these judicial processes is a prerequisite to the Court's noticing the recitals. The Court gives to recitals the effect which they have as such and no judicial inquiry into the facts stated in them is necessary to determine that matter, the effect of the recitals. Their effect is that they contain Parliament's reasons for passing the Act; express the opinions which Parliament held; they conclusively show Parliament held those opinions and believed, presumably, that what is recited is true. The recitals are in no way decisive of the question whether the Act is valid or invalid, for that is a judicial question which only the judicature has the power to decide finally and conclusively. If any fact stated in a recital is material to the question whether the Act is valid or invalid, the fact would need to be judicially determined or ascertained. The recitals are not judicial findings and do not bind the judicature on any question within its own exclusive province. The judicature, of course, treats the recitals with respect and regards the views which they express as possible but cannot concede that they are probative of any matter of fact which is material to the question whether the Parliament had or had not the power to pass this Act. The Constitution does not ​allow the judicature to concede the principle that the Parliament can conclusively "recite itself" into power.
It is not the case that the decision of the validity of an Act can never depend upon the judicial finding of any fact. If the Court has not judicial notice, without proof, of the circumstances in reference to which an Act is passed or of the characteristic of some material thing to which an Act applies, evidence of these circumstances or those characteristics, as the case may be, is admissible to show in either case that the Act has, for example, a purpose which is connected with defence. The Communist Party Dissolution Act applies to a class of persons upon the assumption that merely as members of that class they have a connection with defence. It cannot be assumed that every person, like every specimen of a material thing, has particular characteristics, although, of course, different persons may do the same class of acts. These acts may be of such a kind that persons who do them come within the range of the defence power or of some other legislative power. But acts done by persons are not made the criterion of the application of the present legislation. The connection between specified conduct and the subject matter of a legislative power is capable of proof by evidence or the Court may be able to take judicial notice of the connection. But if the legislature leaves out of account the acts of persons and deals with them solely on the assumption that they are per se related to a subject matter of power it is difficult to see how evidence could establish the assumption or demonstrate that any restrictions which the Parliament imposes on the persons, as such, have any connection in fact with defence or any other subject matter of legislative power. Of course, the persons who are being discussed are not a category which is one of the specified subjects with respect to which the Constitution says that the Parliament has powers to make laws. I think, therefore, that the nature of the Communist Party Dissolution Act is such that the decision of the question of its validity or invalidity cannot be aided by evidence as to the activities alleged in the recitals.
It is implicit in the Act that Parliament is of opinion that the persons to whom it applies are indiscriminately per se a danger to the Commonwealth. This opinion is insufficient to connect the Act with any subject matter of legislative power and to justify the restriction of their civil liberties. In a period of grave emergency the opinion of Parliament that any person or body of persons is a danger to the safety of the Commonwealth would be sufficient to bring his or their civil liberties under the control of the Commonwealth; but in ​time of peace or when there is no immediate or present danger of war, the position is otherwise because the Constitution has not specifically given the Parliament power to make laws for the general control of civil liberties and it cannot be regarded as incidental to the purpose of defence to impose such a control in peace time. To decide that the present Act is good under the defence power would radically disturb the grant of legislative power made by the Constitution to the Commonwealth Parliament. Indeed the general control of civil liberty which the Commonwealth may be entitled to exercise in war time under the defence power is among the first of war-time powers that would be denied to it when the transition from war to peace sets in, because then there is no emergency to support the constitutional power to maintain a control of that nature. It is, of course, for Parliament to measure the emergency confronting the Commonwealth and to take the legislative measures which are required to meet it. The only question for the Court is whether the measures have a reasonable relation to the emergency, and on that question the Court naturally gives very great weight to the opinion of Parliament; but it could not allow the opinion of Parliament to be the decisive factor, that is to determine the matter finally and conclusively, without deserting its own duty under the Constitution.
Parliament, however, has not declared in the Communist Party Dissolution Act that it was passed for the prosecution of any war present or future, or that there is any immediate or present danger of war. At the time the Act came into force the Commonwealth was not engaged in any hostilities except in Korea. The state of affairs was peace not war. Indeed the constitutional position was that the defence power had declined from the zenith to which it had risen in the crisis of the last war practically to the level proper to it in time of peace. The Court has frequently declared, since the end of hostilities in the last war, that the defence power stands in that position. But it was said in argument that when the present Act became law there was tension in international affairs which might suddenly lead to war and therefore there was an emergency which drew the persons dealt with by the present Act within the scope of the defence power.
The Court was asked to take judicial notice of the existence of an emergency of this grave character. There was argument and counter-argument at the bar table as to the state of international relations and as to what they foreboded. A confusing mass of events from which the Court was invited to draw its conclusion was discussed. It does not seem to me that this is the proper way to ​establish the existence of such an emergency as that by which it was sought to support this Act. I think it would have been better if the Court had had the guidance of a formal statement made by the Executive Government of its appreciation of the international situation. The Court would be bound to give very great weight to such a statement, particularly if it positively said that there was an impending danger of war. The existence of an emergency of that nature at the time this Act was passed would contribute enormously to its validity, especially if the enemy was to be the Union of Socialist Soviet Republics, the enemy forecasted in argument. For there are a number of well-known facts relating to the Communist Party which I think are either within judicial knowledge as historical facts or so well known that the Court may take judicial notice of them. The Communist Party is the name of a world-wide movement which is organized as a political party in many countries and is the major and dominant party in the Union of Socialist Soviet Republics; the Australian Communist Party, like the communist parties in other countries, is a political party formed in accordance with Lenin's conception of a world-wide political movement which would strive to establish a proletarian dictatorship and to impose Marxism everywhere; and by reason of these circumstances the Australian Communist Party manifests strong sympathy with the foreign and domestic policy of the government of the Union of Socialist Soviet Republics. It follows that if war occurred in which that State was the enemy or there was imminent danger of such a war, the Commonwealth could take preventive measures against communists and communist bodies just as it could against alien enemies resident in this country. But I cannot agree with the view that at the time this Act was passed there was a situation which provided a constitutional foundation for this Act. It is important to notice an observation which was made by Romer L.J. in Driefontein Consolidated Gold Mines Ltd. v. Janson:—"I think that the intention of a foreign Government at any given time ought to be treated by these Courts, for such a purpose as that I am now considering, as conclusively determined by the way in which our Government chooses or has chosen to deal with that foreign Government and its acts, and that, where our Government has not treated the foreign Government as being hostile at a particular time, our Courts ought not to try to ascertain, even by merely regarding its acts, what was then in the minds of the King, President, or responsible Ministers or authorities of the foreign Government". This ​observation was regarded with favour in the House of Lords. In that case the question was as to the effect of expected hostilities on legal rights. Perhaps in the present case mere diplomatic relations should not have the same weight with the Court. But at a time when it is the policy of the Government not to treat a foreign power as hostile, that fact makes it very difficult for the Court to divine that the power, even if it is armed to the teeth, is about to show them.
The substantial effects of the Communist Party Dissolution Act are produced by s. 4, then by ss. 5 and 6 and finally by ss. 9 and 10. Section 4 singles out the Australian Communist Party by name. The section applies solely to the Party, declares it to be an unlawful association, breaks up the association of persons who form it and provides for the forfeiture, upon dissolution, of all its property to the Commonwealth. The effect of the section is to deprive the members of the Party of their right of association, their interest in the property of the Party and other civil rights. Sections 5 and 6 are directed against bodies, other than trade unions, which are supposedly allied in a fashion to the Australian Communist Party or who have communist connections. These sections authorize the Government of the Commonwealth to take action against any body in these selected categories if it is satisfied that "the continued existence of that body of persons would be prejudicial to the security and defence of the Commonwealth or to the execution or maintenance of the Constitution or of the laws of the Commonwealth". This action has the same effect on the body against which it is taken and its members as s. 4 has on the Australian Communist Party and its members. Sections 9 and 10 authorize the Government of the Commonwealth to disqualify Communists from holding trade union office in certain industrial spheres and all Commonwealth positions. The Government is authorized to take this action against any communist to whom s. 9 applies where it is satisfied that he "is engaged or likely to be engaged in activities", described as "prejudicial" to the above-mentioned interests of the Commonwealth. The effect of these sections is to deprive the persons and the trade unions affected by their operation of a contractual capacity and of civil rights in respect of employment. The criterion adopted by the legislature for the application of s. 4 is that the persons to whom it applies are collectively known as the Australian Communist Party. The application of the section does not depend upon anything that the association might do. The same thing is primarily true of ss. 5 and 6 and ss. 9 and 10. ​The recitals in the preamble set forth many activities and operations which, in the opinion of the Parliament, are pursued by the Australian Communist Party and its officers, members and other Communists. But the condition of the application of the Act to the Australian Communist Party or any association or person is merely that it is communist or has communist associations. The connection of the Act with legislative power depends upon the aims and objects which communism implies, rather than upon the actions of the Party, or of its allies, or of individual communists. The scope and operation of the principal sections of the Act determine that it is merely a law with respect to communists of the Lenin-Marx school. The Court may take judicial notice of the fact that persons of this class manifest strong sympathy with the Soviet and sharp antagonism to the existing social and political orders and are desirous of overthrowing them. But their mere aims as communists, apart from their actions, are not sufficiently substantial to give the Commonwealth Parliament a foot-hold on which to enact laws to deprive all the members of the class of civil liberties which in peace time are immune from Commonwealth control. The Commonwealth might, in an emergency of a certain kind (as I have already said) have the constitutional power to assume this control.
It has been shown that ss. 5 and 6 and ss. 9 and 10 are brought into operation where the Government of the Commonwealth is satisfied of certain matters. The scope of these matters depends in the first place upon the meaning of the words security and defence. This combination of words necessarily has a wider meaning than the single word defence. The first word, security, in its application to national interests, is capable of referring to political, social, economic, financial or military security. The constitutional power of the Commonwealth extends to security through military preparedness against an enemy and in war time to other forms of security, for then it is necessary to maintain public order, social security, industrial peace, financial and economic stability for the successful prosecution of war. But, even if the words security and defence mean in the present context no more than is connoted by the word defence, and they cannot mean less, the Act leaves it to the Executive Government to interpret the meaning and scope of that subject matter in the course of executing the Act. There can be no doubt that Parliament legislated on the basis of the constitutional practice governing the performance by the Executive Government of its high duties of state. For this reason there is the strongest presumption that Parliament did not ​intend that the decision of the question of prejudice to security and defence which it authorized the Executive Government to make, should be examined by a court - a process which would obviously be objectionable on grounds of public policy. The very framework of the section confirms this presumption because it expressly allows the review by a court of the decision of the Executive Government on the other question, whether the body or the person as the case may be, against whom the executive action was taken, is within the scope of the Act. The result is that the Executive Government is itself the final judge of the other question, that is, of how far it may go in operating these provisions. It may be correct for Parliament to authorize the Executive to bring into operation an Act which is within legislative power, but it is clearly another thing and constitutionally wrong for Parliament to authorize the Executive to decide finally as to the extent of any legislative subject matter enumerated in s. 51 of the Constitution and to bring the Act into operation in such cases as it decides to be within the subject matter. Sections 5 and 6 and ss. 9 and 10 should fail also for the reason that in effect they constitute the Executive Government an arbiter on constitutional power. This ground of invalidity applies with even greater force to the authority which the Act gives to the Executive Government to decide whether there is matter "prejudicial" to the "execution or maintenance of the Constitution or of the laws of the Commonwealth". It is surely for the Court to decide finally and conclusively what is meant by these expressions which indeed are copied almost verbatim from the Constitution.
The Act was rested also on the power conferred upon the Parliament by par. (xxxix.) of s. 51 of the Constitution. In the case of Attorney-General for the Commonwealth of Australia v. Colonial Sugar Refining Co. Ltd. the Judicial Committee said: "These words do not seem to them to do more than cover matters which are incidents in the exercise of some actually existing power, conferred by statute or by the common law". The meaning of this paragraph is also explained in the same way in Le Mesurier v. Connor. In the present case it is necessary to apply the sub-paragraph to the power which s. 61 of the Constitution vests in the Executive Government. This section gives it power to exercise the executive power of the Commonwealth and says that this power extends to the execution and maintenance of the Constitution and of the laws of the Commonwealth. By the combined effect of ​the sub-paragraph and s. 61 of the Constitution the Parliament has power to punish crimes against the Commonwealth and to make laws to aid the Executive Government in the execution of its authority to protect the Commonwealth against violence or acts that would directly lead to violence (Burns v. Ransley; R. v. Sharkey). The present Act has not the character of a law on any matter which arises in the course of the execution of the power vested by s. 61 in the Executive Government. The Australian Communist Party and other bodies and communists are made liable or subject to the measures which it provides for dealing with them independently of any conduct which would call for the exercise of the executive power of the Commonwealth. It cannot be doubted that the Commonwealth Parliament could make laws, punitive or preventive, for dealing with them on the basis of their activities, if their activities are shown to be of the required description. The criteria upon which bodies other than the Australian Communist Party are brought within the Act and upon which persons are classified as communists are in some respects arbitrary and might strain a power, if it existed, to legislate just on communists.
As regards ss. 9 and 10, I was pressed by the consideration that the exigencies of modern warfare make it necessary for the Commonwealth to rely on industrial undertakings, whether conducted by itself or privately owned, for the production of the war materials which are essential to national preparedness and the defence of the Commonwealth. The Commonwealth has an interest in protecting any industrial undertaking which is engaged or is likely to be engaged in the production of war materials for the Commonwealth and this interest attracts the defence power. The power extends to the prevention or punishment of specific acts of conduct, whether committed by communists or any other persons, which is detrimental to the safety or productiveness or efficiency of these undertakings. But I cannot see that the operation of ss. 9 and 10 is confined to industrial undertakings which positively have this character. If these sections were intended to be a law with respect to industrial undertakings within the ambit of the defence power, I am afraid that their language leaves the sections open to many objections on the score of its width and vagueness. But it seems to me that the sections, in pith and substance, are a law with respect to communists and that the criterion of industries vital to security and defence, even if it does not over-pass the limits of the subject matter of defence, is used only as a peg on which to ​hang the disqualification of communists from trade union office and Commonwealth employment.
The legislative power which the Commonwealth has in respect of organizations registered under the Commonwealth Conciliation and Arbitration Act will not justify ss. 9 and 10, because these sections apply indiscriminately to registered and unregistered industrial organizations.
Sections 9 and 10 also provide for the disqualification of communists. The Commonwealth Parliament has ample power under s. 52 of the Constitution to make laws to bar from Commonwealth positions persons who, according to any reasonable standard which the Parliament may prescribe, are unfit for Commonwealth employment. The question whether the provision made by ss. 9 and 10 for the disqualification of communists from Commonwealth employment could be justified under s. 52, and, if valid thereunder, it could stand despite the invalidity of ss. 5 and 6 and the rest of ss. 9 and 10, was not specially argued. But s. 9 goes far beyond, dealing with persons within s. 10 (1) (a) and (b). It would operate at large to enable the Governor-General in Council to declare anybody, however remote the possibility of his even seeking to become a public servant or an officer of a Commonwealth authority. It cannot be regarded as a law with respect to the public service or the service of Commonwealth authorities. It is a law with regard to the subject of "declaring" communists to have prejudicial tendencies. Section 14 is invalid for the same reasons; it depends on s. 9.
All of the other provisions of the Act inevitably fall with ss. 4, 5 and 6, and 9 and 10.
For these reasons I answer questions 1(a) and 1(b) No, and question 2 Yes, that is, that the Act is invalid.
* ↑ (1901) 2 K.B. 419, at pp. 439, 440.
* ↑ (1902) A.C. 484.
* ↑ (1914) A.C., at p. 256; 17 C.L.R., at p. 655.
* ↑ (1929) 42 C.L.R., at pp. 497, 498.
* ↑ (1949) 79 C.L.R. 101.
* ↑ (1949) 79 C.L.R. 121.