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

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​Webb J. Section 4 of the Communist Party Dissolution Act declares the Australian Communist Party unlawful for the reasons stated by Parliament in the recitals, which link that Party with, among other things, espionage, sabotage and other treasonable activities. Sections 5 (2) and 9 (2) provide for declarations against bodies of persons, other than registered industrial organizations, whose existence is, and against individuals whose activities are, or ​are likely to be, shown, to the satisfaction of the Governor-General, to be prejudicial to (1) the security and defence of the Commonwealth; or (2) the execution or maintenance of the Constitution or of the laws of the Commonwealth; and who in effect are bodies dominated by, or are under the influence of the Australian Communist Party, or who are communists, or were such after 10th May 1948. Such declarations are followed by the dissolution (ss. 4 and 6) and the forfeiture of the property of such bodies (s. 15), and, in the case of individuals, by the disqualification from office or employment in the Commonwealth public service, including the defence force, and from office in industrial organizations associated with vital industries, including coal-mining, iron and steel, engineering, building, transport and power (ss. 10 and 14). Section 7 is directed to preventing the activities of the dissolved bodies from being continued by individuals. A declared body or person is given a right to apply to a court to show the section does not apply to it or him (s. 5 (4) and s. 9 (4)).
Section 27 indicates that the Act may continue in force when it is required for (1) or (2) above; not because it ceases to be within power, but because of the absence of any further necessity for it in the opinion of the Governor-General. That distinction between the power and the necessity is immaterial in ascertaining the intention of Parliament in s. 27. The conclusion I draw from that section and the recitals is, that if the Act is to have full operation it must be shown to be supported both by the defence power in s. 51 (vi.) and by the incidental power in s. 51 (xxxix.) of the Commonwealth Constitution. If it is valid as an exercise of one power, but not of the other, the question of severability arises.
It may be that in some circumstances legislation for the execution and maintenance of the Constitution and of the laws of the Commonwealth would be within the defence power, and not within the incidental power; although I find it difficult to see how the power to legislate to protect the Constitution and the laws of the Commonwealth can be greater under the defence power than under the incidental power. What is incidental is a question of degree, which might be greater in war time but is still within the incidental power. A different position would arise if the words in ss. 5 (2) and 9 (2) "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" constituted a single composite expression. If they did either power could support both sections, as the class of conduct would then be so limited as to come within either power. As regards the defence power the requirement that ​the conduct should also be prejudicial to the execution or maintenance of the Constitution or of the laws of the Commonwealth would be a mere limitation. So, too, as regards the incidental power, the requirement that the conduct should also be prejudicial to the security and defence of the Commonwealth would be a mere limitation: see Ex parte Walsh and Johnson; In re Yates. However, s. 27 shows that there are at least two composite expressions in the words quoted. This was accepted by the defendants.
Before dealing separately with these two powers I propose to consider three submissions of the plaintiffs: (1) that the Act is an infringement of s. 71 of the Constitution, which section requires the judicial power of the Commonwealth to be exercised only by the courts it specifies, and does not permit of its exercise by Parliament or the Governor-General; (2) that ss. 5 (2) and 9 (2) purport to give the Governor-General power by his unexaminable satisfaction, to enlarge the limits of the legislative power in s. 51 (vi.) and s. 51 (xxxix.), and so are invalid; and (3) that the Act infringes s. 92 of the Commonwealth Constitution, and is invalid.
I do not think that the Communist Party Dissolution Act is, or provides for, an exercise of the judicial power contrary to s. 71 of the Commonwealth Constitution. The parts of the Act which the plaintiffs submit constitute an infringement of s. 71 are the recitals, the declaration that the Australian Communist Party is unlawful and the provision for declarations in the case of certain other bodies, corporate and unincorporate, and individuals, the dissolution of such party and bodies and the appointment of receivers and forfeiture of their property, and the permanent disqualification of declared persons from Commonwealth offices and employment and from holding office in industrial organizations associated with vital industries. With the exception of the recitals and disqualifications of individuals, these provisions were included in the National Security (Subversive Associations) Regulations, which this Court dealt with in Adelaide Company of Jehovah's Witnesses Inc. v. The Commonwealth. In that case Latham C.J., Starke J. and McTiernan J. held that s. 71 was not infringed by those regulations. Williams J., with whom Rich J. said he was disposed to agree, thought that certain provisions of the regulations which, however, are not repeated in the Communist Party Dissolution Act, infringed s. 71. As already stated, there were no recitals to those regulations or disqualifications of persons ​similar to the recitals to, and disqualifications provided for in this Act: but I do not think that that is a material difference, as I am not prepared to hold that the recitals to this Act are actually an indictment, or a series of charges, and findings of fact, and reveal the attempted exercise of judicial power by Parliament; or that the disqualifications reveal any exercise of judicial power, if without them there is no such indication. There is nothing in the form of the recitals which suggests that they are anything more than Parliament's reasons for the enactment. That is the usual purpose of recitals, and we are not warranted in gratuitously treating them as an indictment and findings, so as to bring about the invalidity of the Act, or part of it, as being an infringement of s. 71 of the Constitution.
Nor do I think that the Act, or part of it, is invalid as purporting to confer on the Governor-General an unexaminable, and so uncontrollable, discretion to extend the limits of the legislative powers of the Commonwealth, more particularly by s. 5 (2) and s. 9 (2).
Section 5(2) provides:—"Where the Governor-General is satisfied that a body of persons is a body of persons to which this section applies and 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, the Governor-General may, by instrument published in the Gazette, declare that body of persons to be an unlawful association."
Section 9(2) provides:—"Where the Governor-General is satisfied that a person is a person to whom this section applies and that that person is engaged, or is likely to engage, in activities 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, the Governor-General may, by instrument published in the Gazette, make a declaration accordingly."
In each of these sub-sections the Governor-General has to be satisfied that the continued existence of the body is, or the activities of the person are, or are likely to be, prejudicial in the way indicated. If the powers of the Federal Parliament were unlimited this satisfaction would, I think, be unexaminable. I draw that conclusion from the reasoning of their Lordships, including Lord Atkin, in Liversidge v. Anderson. It is not necessary for the plaintiffs to rely, as they do, on any approval of the dissenting speech of Lord Atkin that may appear in the judgment of Lord Radcliffe for the Privy Council in Nakkudda Ali v. Jayaratne. ​But, as the powers of the Federal Parliament are limited, to make the Governor-General's satisfaction unexaminable as to whether such existence is, or such activities are, or are likely to be, prejudicial in the way indicated would purport to place him in the position of being able to exceed, without check, the limits of the powers of Parliament. Such legislation would be invalid. See In re Walsh and Johnson; Ex parte Yates. In that case, however, the words in s. 8AA (2) of the Immigration Act, "any person not born in Australia", were held by the whole Court to be confined to immigrants. For this construction Isaacs J. relied on the maxim ut res magis valeat quam pereat and on Macleod v. Attorney-General But his Honour also applied that maxim and decision to the part of s. 8AA(2), which would make it an attempt to enlarge the constitutional area of the subject matter, i.e., the trade and commerce power in s. 51 (i.) of the Constitution; although a majority of the Court appear to me to have thought that that part of s. 8AA was invalid, except under the immigration power, because the Minister's opinion was made unexaminable.
However, in Reid v. Sinderberry this Court had to consider s. 13A of the National Security Act 1939-1943. Section 13A provided that:—"… the Governor-General may make such regulations making provision for requiring persons to place themselves, their services and their property at the disposal of the Commonwealth, as appears to him to be necessary or expedient for securing the public safety, the defence of the Commonwealth … or the efficient prosecution of any war in which His Majesty is or may be engaged."
In a joint judgment Latham C.J. and McTiernan J. said:—"It is not necessary to construe the section as intended to provide that the opinion of the Governor-General should be made a criterion of constitutional validity. Regulations made under s. 13A cannot be valid unless they appear in the opinion of the Governor-General to be necessary or expedient for what may be described as purposes of defence. But the fact that the Governor-General has such an opinion still leaves open all questions of constitutional validity. A regulation, though complying in terms with the section as being necessary for defence purposes, in the opinion of the Governor-General, could nevertheless not be held to be valid if it was shown that the Governor-General could not reasonably be of opinion that the regulation was necessary or expedient for such ​purposes. It was not the intention of Parliament when it enacted s. 13A to authorize the making of regulations upon the basis of an opinion which no reasonable man could hold.".
Williams J., with whom Rich J. agreed, had no doubt that s. 13A was valid. The validity of the regulations—and necessarily of s. 13A—was unanimously upheld by the Court consisting of five Justices.
In Stenhouse v. Coleman the Court consisting of five Justices unanimously upheld a Minister's order under reg. 59 of the National Security (General) Regulations made under s. 5 of the National Security Act 1939-1943. Section 5 provided:—"The Governor-General may make regulations for securing the public safety and and for prescribing the defence of the Commonwealth … all matters which … are necessary or convenient to be prescribed for the more effectual prosecution of any war in which His Majesty is or may be engaged."
Regulation 59 provided: "(1) A Minister, so far as appears to him to be necessary in the interests of the defence of the Commonwealth or the efficient prosecution of the war, or for maintaining supplies and services essential to the life of the community, may by order provide—(a) for regulating, restricting or prohibiting the production, … movement … distribution sale, purchase … of essential articles" ("essential articles" was defined as meaning: "appearing to a Minister to be essential for the defence of the Commonwealth or the efficient prosecution of the war, or to be essential to the life of the community").
An order by the Minister under this regulation requiring bakers and others to be licensed was held valid.
Latham C.J. said :—"An identical argument was considered by this Court in Reid v. Sinderberry. There the Court considered s. 13A. . . . It was argued that this section was invalid because it purported to authorize the making of regulations which, though in the opinion of the Governor-General might be necessary for the purposes stated, yet were not in fact necessary for those purposes. My brother McTiernan J. and I … pointed out that the power of the Commonwealth Parliament in relation to defence was a power to make laws with respect to naval and military defence, and not a power to make laws with respect to any matter which in the opinion of a Parliament or of an authority to which Parliament might confide a power of subordinate legis​lation was naval or military defence. But we proceeded to say that the section should not be construed as intended to provide that the opinion of the Governor-General should be made a criterion of constitutional validity. . . ."
Dixon J., who was not a member of the Court in Reid v. Sinderberry, referring to s. 13A, said:—"But that is an enactment made under the constitutional power with respect to defence and cannot extend the power or affect the criteria or the materials that must be used in judging whether a regulation made by the Governor-General in Council falls outside the ambit of the constitutional power itself"
It follows, I think, that if s. 13A was not invalid because of the scope it gave to the opinion of the Governor-General, s. 5 (2) and s. 9 (2) are not invalid because of the scope they give to the Governor-General's satisfaction. If the Governor-General's opinion was examinable for power under s. 13A his satisfaction is examinable for power under s. 5 (2) and s. 9 (2).
It is true that the Governor-General has to be satisfied of two things: (1) that the particular body or person is within s. 5 (1) or s. 9 (1), as the case may be; and (2) that the existence of the body is, or that the activities of the person are, or are likely to be, prejudicial to the security and defence of the Commonwealth or to the execution or maintenance of the Constitution or laws of the Commonwealth. It is also true that the right to apply to a court is given as to (1), while the Act is silent as to (2). However, as the decision of the Governor-General is always examinable for constitutional power, as Parliament knows, an express provision in the Act is not required for that purpose; and so, I think, no implication arises from the apparently limited right to apply to a court given by s. 5 (4) and s. 9 (4) that excludes the application of any doctrine or rule of construction intended to sustain the constitutionality of statutes of legislatures with limited powers. Really the right to apply to a court is intended to liberalize the statute, i.e., to give such right when the declaration is within power. This does not, I think, render it more vulnerable to attack on constitutional grounds.
It may be thought that there are not only two but three matters on which the Governor-General must be satisfied in the case of persons under s. 9, the further matter being that the person is engaged, or likely to be engaged, in certain activities, apart from their prejudicial character; but that would be, I think, a refinement having no effect on the inference to be drawn from the ​omission of this additional matter as a subject of a right to apply to a court. It would be like drawing a distinction between an offence and the acts which constitute it, and making them separate issues. In any event it would not apply to bodies under s. 5: a right to apply to a court on the question whether the applicant existed would be a quaint provision.
In the Jehovah's Witnesses Case Starke J. thought that a regulation declaring unlawful any body, corporate or unincorporate, the existence of which the Governor-General declared to be in his opinion prejudicial to the defence of the Commonwealth or the efficient prosecution of the war, standing alone, was not invalid.
In Ex parte Walsh this Court, consisting of five Justices, in refusing special leave to appeal, unanimously treated reg. 26 (1) of the National Security (General) Regulations as valid.
Regulation 26 reads:—"The Minister may if satisfied with respect to any particular person that with a view to prevent that person acting in any manner prejudicial to the safety or the defence of the Commonwealth it is necessary to do so make an order (c) directing that he be detained in such place and under such circumstances as the Minister from time to time determines and any persons shall while detained, … be deemed to be in legal custody".
In that case the Court applied Lloyd v. Wallach , where, however, the regulation provided: "Where the Minister has reason to believe that any naturalized person is disaffected or disloyal he may … order him to be detained … ".
It will be observed that this regulation did not give the Minister power to explore and determine the limits of the defence power: disaffected and disloyal naturalized persons were clearly within the power. But the fact remains that reg. 26 (1) was unanimously treated as valid.
Ex parte walsh, the Jehovah's Witnesses Case, Reid v. Sinderberry and Stenhouse v. Coleman were decided in war time. But a state of war does not enable the limits of the defence power itself to be extended by Parliament or its delegate. War does not change the meaning of words or the rules of construction. In my opinion, although the content of the defence power increases in war time according to the needs of the situation, there is no alteration by war of the concept of the power.
​In none of the four last-mentioned cases did their Honours find it necessary to state their reasons for what appears to me to have been a rejection of the views of the majority in Ex parte Walsh and Johnson. I respectfully suggest that their Honours impliedly adopted the reasoning of Isaacs J. in that case, and applied the maxim ut res magis valeat quam pereat and Macleod v. Attorney-General. But, whatever may have been their Honours' reasons, I intend to follow these four decisions as I understand them.
Then as to s. 92: it affords protection to industrial organizations and their officials and employees; but it cannot prevent the operation of the defence power or the incidental power under s. 51, for the same reasons that it cannot prevent the operation of the Crimes Act. The effect on inter-State trade, commerce or intercourse of laws made under the defence power or the incidental power is remote. Such laws do not regulate or prohibit inter-State trade, commerce or intercourse contrary to s. 92. They are not laws about inter-State movements or operations. The Banks Case is distinguishable.
Dealing next with the defence power: the dissolution of bodies corporate and unincorporate, and the forfeiture of their property, are, the plaintiffs submit, such extreme measures as to be unrelated to the defence power and invalid in the absence of proof, or of judicial notice, of the matters in the recitals involving the Australian Communist Party. If Parliament had made offences of the things it seeks to prevent by this Act the extreme nature of any penalty it might have attached to those offences would not have been a ground for holding that the creation of the offences was beyond power; but that, I suggest, would be because legal punishment is retributive as well as deterrent. If this Act is to be held valid it is because it is only preventive. If the measures taken by this Act were punitive they would call for the exercises of judicial power.
In the Jehovah's Witnesses Case a majority of the Court held that certain regulations made under the National Security Act were beyond the defence power and invalid because they were, in their Honours' opinion, of such an extreme nature as to be unrelated to the power: they did not have a real connection with defence. The test of validity of Federal legislation is, I think, its real connection with the power of Parliament to legislate. See Victoria v. The Commonwealth, per Latham C.J.
​In the Jehovah's Witnesses Case, Starke J. said:—"Any body in respect of which a declaration is made is, by force of the declaration, dissolved. A regulation providing for the precautionary detention of individuals has been upheld under provisions such as in the National Security Act. . . . And, so I apprehend, could regulations controlling the activities or operations of any body mentioned in the Subversive Associations Regulations, as was done in the case of enemy subjects by the Trading with the Enemy Act. . . . But here are regulations of a temporary character which dissolve the body and wind it up. . . . And any property … is forfeited to the King. . . . It is not a precautionary detention of property, but a forfeiture of property to the Crown, though no offence is created. . . . A regulation might be legitimate if merely precautionary, but the operation of the Regulations … is to forfeit property to the Crown, even though the property be not that of the declared body but only used on behalf of or in its interests … Bodies corporate and unincorporate are put out of existence and divested of their rights and their property on the mere declaration of the executive Government. The operative clauses … such as the provision relating to … forfeitures … have little, if any, real connection with the defence of the Commonwealth". Williams J. said: " … the mere fact that the corporation or individual or body of individuals is carrying on some activity, which in the opinion of Parliament or of some Minister is prejudicial to the defence of the Commonwealth, cannot, in my opinion, conceivably require that the Commonwealth should enact that the property of such corporation or individual or body should be forfeited to the Crown and the rights of all corporators and creditors … destroyed".
Rich J. said he was disposed to agree with the views of Williams J. Starke and Williams JJ. did not rely merely on the dissolution of bodies corporate and unincorporate, and on the forfeiture of their property: they relied also on the disregard of the rights of creditors and others. But I think it is fair to conclude from their reasoning that they would still have held the regulation bad even if the dissolutions and forfeitures had been prescribed without prejudice to the rights of creditors and other third parties. Their Honours contrasted the temporary war situation with the permanent consequences attached to the prejudicial conduct. This was, I think, the main line of their Honours' reasoning, and the real ground of their decision.
​Without the assistance of their Honours' judgments I would, I think, have come to a different conclusion on the ground that, once conduct comes within the defence power, Parliament is at liberty to attach to it whatever consequences it sees fit. In attaching extremely severe consequences Parliament might be guilty of an abuse of power. But the courts are not at liberty to forestall abuses of power by holding the legislation invalid. They can interfere only to prevent a usurpation of power. However, in this matter of reconciling defence requirements with the rights and liberties of individuals, I am satisfied to act upon the reasons shared by a majority of this Court in a relevant case, as I understand those reasons. Moreover, those reasons prevent a conclusion that mere suspects can lawfully be liquidated and their property confiscated. Further, I respectfully suggest that one should hesitate long before rejecting the reasoning of a majority for a decision of this Court in a case in point. That would be warranted if he were one of a majority holding the view that such reasoning was unsound; but there is, as far as I am aware, no such majority in this case.
If, then, the Communist Party Dissolution Act can be connected only with a temporary situation, I think that the Jehovah's Witnesses Case shows that ss. 4, 5, 6, 9, 10, 11 and 15, and indeed the rest of the Act, are beyond power and invalid. But if it can be connected with a more or less permanent state of things, then I see no reason why permanent consequences cannot validly be attached to the prejudicial conduct with which it deals, without recourse to punishment and the judicial power. If the Australian Communist Party can be shown to be what the recitals say it is, then it is an evil which constantly threatens, in peace as well as in war, the security and defence of the Commonwealth, as well as the maintenance and execution of the Constitution and of the laws of the Commonwealth; and so it can validly be declared unlawful and dissolved and its property can validly be forfeited to the Commonwealth.
In Ex parte Walsh and Johnson the deportation of an immigrant, even of a British subject, was held to be within the immigration power. That was because Parliament had plenary power to deal with immigration. It was also held that deportation was a preventive measure, and not punitive. But the defence power is also plenary. Moreover, the dissolution of bodies, whether corporate or unincorporate, and even the forfeiture of their property, are mild steps as compared with deportation. ​Dissolution of a subversive body is an effective means of preventing meetings of the body, and the forfeiture of its property prevents the property from being used by the body for subversive purposes.
Subject to what I have to say later about s. 4 and ss. 5 and 9, I think the Communist Party Dissolution Act can validly be enacted in peace time. In peace time it is lawful to have a defence establishment and to take steps to protect it against spies, saboteurs, fifth columnists and the like. In other words, it is lawful to prepare for war, and the extent to which such preparations should be made is a matter of policy depending upon the judgment of Parliament on the information it has from time to time. A court is not at liberty, and is not in any case qualified, to revise that judgment of Parliament, which probably would be made, and properly so, on materials not admissible in evidence. And it is open to Parliament to legislate to prevent interference with those preparations by spies, saboteurs, fifth columnists and the like. The greater the preparations the more active are such persons likely to become. Parliament is not obliged to rely solely on the Crimes Act in dealing with them. It could, I think, legislate for the deportation of a spy, a saboteur, or a fifth columnist as a preventive step: see Ex parte Walsh and Johnson, per Issacs J., and per Starke J.. As an immigrant is at all times within the immigration power, so too is a spy, saboteur, or fifth columnist within the defence power at all times, even if he is a British subject.
I have already held that the satisfaction of the Governor-General under ss. 5 (2) and 9 (2) is examinable to see whether in the particular case there is a real connection with the power. The action of Parliament already taken in s. 4 against the Australian Communist Party is also examinable for power, and must be shown to have such real connection if it is to be held valid. Parliament having already acted in s. 4, it is for the Court now to see whether s. 4 has a real connection with the defence power.
Section 4 declares the Australian Communist Party unlawful, dissolves it and appoints a receiver of its property, with the consequence that the property is forfeited to the Commonwealth by s. 15. The reason for this action appears in the recitals; but the recitals alone do not establish a real connection with the power, although they give the reasons of Parliament for the legislation, and the Court must take these to be the true reasons. In a statute of a parliament of unlimited powers recitals are also ​prima-facie evidence.. (Craies on Statute Law, 4th ed. (1936), p. 39, and Maxwell on The Interpretation of Statutes, 7th ed. (1929), p. 269.) And I think they are prima-facie evidence in a statute of a parliament of limited powers where the statute deals with a matter within power. But the onus of proving that a statute of the Commonwealth Parliament, being a parliament of limited powers, is within power is on those who affirm its validity, where, as here, the Parliament assumes to exercise what are ordinarily State powers, i.e., the dissolution of a body and the forfeiture of its property, not being a corporation created by or under a statute of the Parliament (Attorney-General for the Commonwealth of Australia v. Colonial Sugar Refining Co. Ltd.). This burden of proof of constitutionality cannot be shifted by resorting to recitals: by putting the evidence and argument in recitals instead of to the courts. It is for the courts to examine and determine the question of constitutionality when that is challenged and for those who affirm constitutionality to prove it in the ordinary way.
I am not prepared to hold that the statements in the recitals involving the Australian Communist Party are notoriously true and judicially noticed. It is, I think, incontestable that when this Act was passed war among the Great Powers, with the Union of Socialist Soviet Republics on one side and the United Kingdom and the United States on the other side, was a distinct possibility within a few years; and, further, that if it occurred it was not unlikely that Australia would become a belligerent on the side of the United Kingdom. It is also incontestable that communists generally were suspected by a large section of the community of the things imputed in the recitals to the Australian Communist Party. Such being the case it would have been reasonable that Australia should prepare for war on a vast scale, and take all precautions to protect those preparations, by legislation and otherwise, against espionage, sabotage and fifth-column and such like activities. The defence power, being plenary, authorizes measures of prevention as well as of punishment; of prevention in the case of bodies and persons suspected of subversive conduct, and of prevention and punishment in the case of those proved to be so. In the recitals, however, no reference is made to the possibility of war; nor is there any such reference in the enacting part of the Act. But that does not prevent this Court, in determining whether the Act is valid, from paying regard to a public situation or emergency, so far as it is judicially noticed, and its effect on the contents of the defence ​power. However, the possibility or probability of war among the Great Powers, involving Australia as a belligerent, is not a more or less permanent state of affairs calling for action having permanent consequences against mere suspects, such as dissolutions and forfeitures, and disqualifications from office in industrial organizations. Disqualification for the Federal public service and defence force is a matter within power in any circumstances.
As I understand that the defendants do not intend to offer evidence to support s. 4, I hold it is invalid, and so the question of severability arises, unless that intention is changed.
Section 15A of the Acts Interpretation Act 1901–1948 provides that: "Every Act shall be read and construed subject to the Constitution, and so as not to exceed the legislative power of the Commonwealth, to the intent that where any enactment thereof would, but for this section, have been construed as being in excess of that power, it shall nevertheless be a valid enactment to the extent to which it is not in excess of that power."
Before the enactment of s. 15A, if part of a statute was found to be outside power the whole Act would be invalid, if different consequences from what the legislature intended would result to persons and things affected by the part within power (see Vacuum Oil Co. Pty. Ltd. v. Queensland [No. 2] per Dixon J.). It might appear that s. 15A means that the intention of Parliament as to such persons and things is to be disregarded if, nevertheless, the power exists to pass the enactment so far as it affects such persons and things: that the question is to be decided as one of power and not of the intention of Parliament. Of course, Parliament could not require the Court to become its draftsman and reframe the statute; but that is not involved if, when the section beyond power is eliminated, the remaining sections do not require redrafting to be made intelligible. Now if s. 4 is struck out as invalid the remaining sections are intelligible as they stand. But, before coming to any conclusion from this, it is desirable to consider the views expressed in judgments of this Court as to the effect of s. 15A.
In Bank of New South Wales v. The Commonwealth Dixon J. said:—"The effect of such clauses is to reverse the presumption that a statute is to operate as a whole, so that the intention of the legislature is to be taken prima facie to be that the enactment should be divisible and that any parts found constitutionally unobjectionable should be carried into effect independently of those which fail. To displace the application of this new presumption to any given situation arising under the statute by ​reason of the invalidation of part, it must sufficiently appear that the invalid provision forms part of an inseparable context. The general provision contained in s. 15A … produces this effect. . . . But in applying s. 15A … the courts have insisted that a provision, though in itself unobjectionable constitutionally, must share the fate of so much of the statute … as is found to be invalid, once it appears that the rejection of the invalid part would mean that the otherwise unobjectionable provision would operate differently upon the persons, matters or things falling under it or in some other way would produce a different result. This consideration supplies a strong logical ground for holding provisions to be inseverable. . . . For the inference in such a case is strong that provisions so associated form an entire law and that no legislative intention existed that anything less should operate as a law. Further, where severance would produce a result upon the persons and matters affected different from that which the entire enactment would have produced upon them, had it been valid, it might be said with justice that unless the legislature had specifically assented to that result, contingently on the failure of its primary intent, it could not amount to a law."
It is remarkable if the Australian Communist Party is what the recitals say it is and yet remains free to continue its traitorous activities, whilst bodies dominated or influenced by it are declared unlawful and dissolved and their property forfeited, and individuals are declared subversive and disqualified for office or employment in the Commonwealth public service and the defence force, and for office in industrial organizations in vital industries. Yet that follows if s. 4 is invalid and ss. 5 and 9 are not invalid. But the Act without s. 4 does not increase the liabilities of, or the consequences to, bodies or persons coming within other sections. They are exposed to no greater risk of action or to more serious consequences.
However, there is a further test suggested by Dixon J. in Vacuum Oil Co. Pty. Ltd. v. Queensland [No. 2], i.e., did uniformity of treatment enter into the determination of the legislative will? The answer is, I think, that there is no principle of construction favouring uniformity of treatment among spies, saboteurs, fifth columnists or subversive or traitorous persons.
I think the decisions on s. 15A, more particularly the two judgments referred to, though helpful, do not dispose of the problem, which is sui generis, due to the fact that Parliament has taken the unusual course of dealing directly with the Australian Com​munist Party. Parliament being in possession of information concerning the Party, as the recitals indicate, the Act may, perhaps, be regarded as providing merely for a division of responsibility between Parliament and the Governor-General, in which no legislative intention can be found inconsistent with that expressed in s. 15A. But it may also be taken to reveal that so determined was Parliament that the Australian Communist Party should be destroyed that it took the unusual course of itself declaring it unlawful, dissolving it and forfeiting its property; that it went to the source of the evil to eradicate it as an essential step in coping with the situation, leaving to the Governor-General the task of dealing with contaminated bodies and individuals. And if the destruction of the Party was regarded by Parliament as essential it is impossible to impute to Parliament the intention that, even if the Party should survive, its satellites should succumb. However, when Parliament, believing it is dealing with an evil, seeks to eradicate it, a court should be slow to attribute to Parliament the intention, in the absence of a clear indication to the contrary, that if its action against the evil fails in part it should wholly fail. Nevertheless, having regard to the Act as a whole, and more particularly to the recitals and to the fact that s. 5 (2) and s. 9 (2) are based on the assumption, express in the latter sub-section, and implied in the former, that the Australian Communist Party has been dissolved, I am unable to resist the conclusion that the dissolution of the Party was thought by Parliament to be essential, and such dissolution being of the essence of the scheme, that the operation of s. 15A is excluded.
It becomes unnecessary for me to deal further with the incidental power or with other matters argued but not dealt with above. However, I desire to state three propositions, based mainly on the plenary nature of the defence power, which, in my opinion, are incontestable: (1) that the purpose of Parliament may be expressed in a recital or preamble, as well as in the enacting part of a statute; (2) that in a preventive as distinct from a punitive statute a rule of conduct is not required (Lloyd v. Wallach and Ex parte Walsh); (2) that Parliament, as well as its delegate, may deal with a particular case, subject to the examination by the courts of the facts of the case for constitutional power; otherwise Parliament would have less power than its delegate.
By enacting a general statute, whilst having in mind the activities of the Australian Communist Party in particular, the Parliament might have empowered the Governor-General to deal with the ​Party among others, and in so doing ensured that any contest as to constitutional power would not be on the Act itself but on the action of the Governor-General under the Act. That, however, would have been a matter of choice and not of necessity.
I think the questions stated by Dixon J. should be answered:—
Question 1 (a). The decision of the question of the validity or invalidity of s. 4 of the Act depends upon a judicial determination or ascertainment of the facts without any limitation by the recitals.
Question 1 (b). The plaintiffs are entitled to adduce evidence to establish that s. 4 is outside the legislative power of the Commonwealth.
Question 2. In the absence of evidence by the defendants in support of s. 4 the whole Act is invalid.
* ↑ (1925) 37 C.L.R. 36.
* ↑ (1943) 67 C.L.R. 166.
* ↑ (1943) 67 C.L.R., at p. 138.
* ↑ (1943) 67 C.L.R., at p. 155.
* ↑ (1943) 67 C.L.R., at p. 157.
* ↑ (1943) 67 C.L.R., at p. 150.
* ↑ (1942) A.C. 206.
* ↑ (1951) A.C. 66.
* ↑ (1925) 37 C.L.R. 36.
* ↑ (1925) 37 C.L.R., at p. 93.
* ↑ (1891) A.C. 455.
* ↑ (1925) 37 C.L.R., at pp. 96, 97
* ↑ (1944) 68 C.L.R. 504.
* ↑ (1944) 68 C.L.R., at p. 512.
* ↑ (1944) 69 C.L.R. 457.
* ↑ (1944) 69 C.L.R., at p. 463.
* ↑ (1944) 68 C.L.R. 504.
* ↑ (1944) 68 C.L.R. 504.
* ↑ (2) (1944) 69 C.L.R., at p. 470.
* ↑ (1943) 67 C.L.R., at p. 152.
* ↑ (1942) A.L.R. 359.
* ↑ (1915) 20 C.L.R. 299.
* ↑ (1943) 67 C.L.R. 116.
* ↑ (1944) 68 C.L.R. 504.
* ↑ (1944) 69 C.L.R. 457.
* ↑ (1925) 37 C.L.R. 36.
* ↑ (1891) A.C. 455.
* ↑ (1950) A.C. 235; 79 C.L.R. 497.
* ↑ (1943) C.L.R. 116.
* ↑ (1942) C.L.R., at p. 508.
* ↑ (1943) 67 C.L.R., at pp. 152–154.
* ↑ (1943) 67 C.L.R., at p. 163.
* ↑ (1943) 67 C.L.R. 116.
* ↑ (1925) 37 C.L.R. 36.
* ↑ (1925) 37 C.L.R. 36.
* ↑ (1925) 37 C.L.R., at p. 97.
* ↑ (1925) 37 C.L.R., at pp. 132, 133.
* ↑ (1914) A.C., at p. 255; 17 C.L.R., at p. 653.
* ↑ (1935) 51 C.L.R. 677, at p. 692.
* ↑ (1948) 76 C.L.R., at p. 371.
* ↑ (1935) 51 C.L.R., at p. 692.
* ↑ (1915) 20 C.L.R. 299.
* ↑ (1942) A.L.R. 359.