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

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​Kitto J. The questions raised by the case stated require a decision to be given as to the validity or invalidity of the Communist Party Dissolution Act 1950 unless the Court considers that such a decision must depend upon a judicial ascertainment upon evidence of the truth or untruth of certain statements contained in the preamble to the Act.
The statements made in the preamble are the pronouncement of a legislature to which power is given by the Constitution to make laws for the peace, order and good government of the Commonwealth with respect to the naval and military defence of the Commonwealth and of the several States, and with respect to matters incidental to the execution of any power vested by the Constitution in the Parliament or in the Government of the Commonwealth. The executive power of the Government extends to the execution and maintenance of the Constitution and of the laws of the Commonwealth: Constitution, s. 61.
The recitals in the preamble reveal that the Parliament, which is entrusted with these legislative powers and which must bear the corresponding responsibility, has formed a judgment as to the existence and nature of a menace to the safety of Australia. In a unitary system of government no challenge could be successfully offered to any legislation passed in consequence of such a judgment; but under a Federal system the central legislature is equipped with limited powers only, and the duty is cast upon the courts to determine whether laws which that legislature thinks necessary for the security of the country are within the scope of its powers.
H. C. of A.
1950–1951.
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Australian Communist Party v. The Commonwealth
Kitto J.
It should not be held, in my opinion, that a judgment of the Parliament of the Commonwealth as to the existence of a danger to the safety of the nation can enlarge the scope of any of its powers. So far as the defence power is concerned, such a proposition could not be supported except upon the view that the conception of "the naval and military defence of the Commonwealth and of the several States" is such that its limits must be taken to have been left by the Constitution for final determination by the authorities which are in the best position to determine them, namely the Parliament and the Executive which it controls, and that therefore the courts must accept as conclusive of power a Parliamentary decision that particular legislation is in the circumstances within the ambit of the power to make laws with respect to defence.
This Court has always recognized that the Parliament and the Executive are equipped, as judges cannot be, to decide whether a measure will in practical result contribute to the defence of the country, and that such a question must of necessity be left to those organs of government to decide. But the necessity arises, not simply because of the peculiar position in relation to defence which those organs occupy; it arises from the consideration that the limits which the Constitution sets to the defence power are not limits which have to do with the results which legislation may be believed likely to produce. They are limits defined by reference to the nature and character of legislation; it must be "with respect to" defence; and that means that its operation by way of altering the law must be seen to give it such a relevance to the subject of defence that its true character is that of legislation with respect to the subject. If a measure, having regard to what it does "in the way of changing or creating or destroying duties or rights or powers" (as Latham C.J. expressed it in South Australia v. The Commonwealth), can be seen to be really and substantially capable in the existing circumstances of contributing specifically to defence, it possesses the necessary kind and degree of relevance to the subject. But, while it is certain that the necessity or desirability of the measure, if it be within power, is a matter with which the courts have no concern, it is equally certain that the question whether the legal operation of the measure has such a capability of aiding defence as gives it that character which alone will sustain it as an exercise of the defence power is a matter which no judgment of the Parliament can conclusively decide. It is inherent in the system of government which the Constitution ​establishes that the Court must make its own decision on that point.
This conclusion is entirely consistent with a full acceptance of the doctrines, made familiar in judgments delivered during the second world war, that the defence power is purposive, and that, while it possesses a constant meaning, its application is of greater or less width according to circumstances. As to the first of these doctrines, it was pointed out by Dixon J. in Stenhouse v. Coleman that "the naval and military defence of the Commonwealth and of the several States" is a subject which differs in one important respect from most of the others mentioned in s. 51, namely, that it is not a class of transaction or activity, or a class of public service, undertaking or operation, or a recognized category of legislation, but is a purpose. The word "purpose" in this connection has nothing to do with the motives or the policy lying behind legislation (Australian Textiles Pty. Ltd. v. The Commonwealth). It refers to an end or object which legislation may serve; and the consequence which follows from a recognition of defence as a "purpose" in this sense of the word is that the relevance to defence which stamps a measure with the character of a law with respect to defence is to be found in a capacity to assist that purpose. But that capacity must be discernible by the Court, since it is the Court which must decide whether the measure possesses the requisite character. As to the second doctrine, the important point for present purposes is that the circumstances to which it refers are the circumstances of a public nature existing at any given time. Thus, in time of peace, when there is no special reason to apprehend a war, the class of laws which can be seen to possess a defence character is much more limited than it is when a danger of hostilities arises; it becomes wider still when war breaks out; it reaches its maximum amplitude when a war is raging which is of so serious a character as to call for the devotion to its prosecution of the entire resources and activities of the nation; it fluctuates according to "the nature and dimensions of the conflict … the actual and apprehended dangers, exigencies and course of the war, and … matters that are incident thereto" (Andrews v. Howell); it contracts again when hostilities cease, but even then remains sufficient to include laws to wind up after the war and to restore conditions of peace (Dawson v. The Commonwealth; Miller v. The Commonwealth; ​Real Estate Institute of New South Wales v. Blair; Hume v. Higgins; R. v. Foster). All these stages in the waxing and waning of the defence power have been witnessed in recent years. In all of them the meaning of the power has been recognized to be unchanging; but "its application depends upon facts, and as those facts change so may its actual operation as a power enabling the legislature to make a particular law" (Andrews v. Howell). The "very nature" of the power "means that its strength is commensurate with the exigency or danger which calls for its exercise" (Australian Textiles Pty. Ltd. v. The Commonwealth). But "the exigency" and "the danger" by reference to which the reach of the power is to be determined are objective facts, which the tribunal which has the constitutional duty of comparing challenged legislation with the power must be able to perceive. To allow that their existence may be conclusively affirmed by the Parliament according to its own judgment would be to treat the exigency and the danger as matters of subjective opinion and, in effect, to alter the Constitution by substituting for the power to make laws with respect to defence, a power to make laws which would be with respect to defence if the situation were such as the Parliament adjudges it to be. Such an alteration would involve a fundamental departure from the principle of the Constitution that the legislative power of the Commonwealth is subject to legal limitations, and not merely to limitations arising from political or practical considerations or the limitations, depending upon the character of legislators, which Dicey called internal. It is no doubt true that legislative or executive actions may themselves create situations in which the scope of the defence power is wider than it would have been if these actions had not been taken. A declaration of war is an obvious example. This is so because the determinant of the ambit of the defence power at a given point of time is the situation, however it may have been brought about, in which Australia finds itself at that time. But the responsibility of ascertaining the ambit of the power rests upon the Court, and therefore the Court must of necessity decide for itself what features relevant to the power the existing situation presents.
If the defence power does not enable a measure to be upheld by reason of an opinion formed by the Parliament that the safety of the Commonwealth calls for or justifies that measure, it is even clearer, I think, that the scope of the other powers of legislation ​relied upon by the Commonwealth in the argument in this case must be unaffected by any opinion of the Parliament as to the need for legislative action. The incidental power conferred by s. 51 (xxxix.) in association with s. 61 is, like the defence power, a power to make laws of a specified character, determined by the relevance of their operation to a particular matter. The reasons of the legislature for enacting a law, though they be reasons based upon its belief as to the existence of a state of facts connected with the execution and maintenance of the Constitution and of the laws of the Commonwealth, do not enter into the character of the law itself, and therefore do not bear upon the question of its validity. As for the implied power to legislate for the protection of the Commonwealth against subversive activities, which was referred to by Dixon J. in Burns v. Ransley, and in R. v. Sharkey, all I need say is that to treat that power as extending to any activities to which the Parliament sees fit to ascribe a subversive character, would be to transform the power into one far wider than can be justified by the reasoning upon which the implication of the power depends.
The problem which the Court must face, in my view, is whether the Communist Party Dissolution Act 1950 can be seen to fall within any of the legislative powers which are relied upon in support of it, irrespectively of the disclosed opinion of the Parliament. In preceding judgments the provisions of the Act have been analysed and their operation described. I need not repeat the process. Three major questions emerge: (1) whether s. 4, which dissolves the Australian Communist Party, is valid; (2) whether the provisions which commence with s. 5, and relate to bodies of persons to which that section applies, are valid; and (3) whether the provisions which commence with s. 9, and relate to persons to whom that section applies, are valid.
The defence power is relied upon as supporting each of these portions of the Act, either wholly or in part. Whether that power suffices for the purpose must depend upon the range of its application at the date when assent was given to the Act, which was 20th October 1950. This in turn must depend upon such facts, existing at that date and relevant to the defence of the Commonwealth, as are or may be brought within the knowledge of the Court; for the Court must necessarily deny the validity under the defence power of any measure passed by the Parliament of the Commonwealth, unless it is able to see with reasonable clearness how the ​measure is incidental to that power (R. v. Foster). Facts which, to use the language of Stephen's Commentaries, 16th ed. (1914), vol. 3, p. 568, are "matters of common and certain knowledge", may be judicially noticed without proof; but the Court has in some cases taken into account, in considering the validity of legislation under the defence power, facts outside the range of judicial notice. In Jenkins v. The Commonwealth, and in Sloan v. Pollard, for example, legislation was found to be within power upon consideration of facts established by evidence. It does not follow, however, that there is no limit to the kind of facts which evidence may be adduced to prove in support of, or in answer to, a challenge to legislation which is rested on the defence power.
Although it is only in litigation between parties that the Court may decide whether Commonwealth legislation is valid, it is upon the validity of the legislation in relation to all persons that the Court has to pronounce. The question is whether the legislation forms part of the law of the Commonwealth. Since it is impossible to affirm the validity of a measure upon a particular basis of fact unless that basis of fact can be seen to be common to all persons, it cannot be material, for the purpose of considering validity, to decide an issue of fact which is of such a nature as to admit of different findings in different cases.
Moreover, in connection with the defence power, three classes of facts may be distinguished, namely, those which bear upon the degree of national danger by reference to which the extent of the power at the relevant time must be determined; those which relate to the existence of a particular purpose, within the wider purpose of defence, which the measure in question is capable of aiding; and those which are relevant only to the question whether the measure is likely to produce results of advantage to the defence of the country. Evidence may be needed to establish facts of the first two classes, but such facts are not likely to be disputable. Facts of the third class may often be open to controversy; but even if capable of conclusive proof, the Court is not concerned with them. They have nothing to do with any question of power; they relate to a question which is essentially one for the consideration of the Parliament on the assumption that the measure is within power as having an operation in law which is capable of serving an end within the purpose of defence.
​It is true also with respect to the incidental power in association with s. 61, and the limited power of making laws for the protection of the Commonwealth against subversion, that, in considering whether these powers are wide enough to support a given measure, it is necessary to recognize as irrelevant such facts as have significance in relation only to the practical effect likely to be achieved by the measure. These facts are proper to be considered by the Parliament in determining legislative policy. The courts have nothing to do with policy, and they cannot be assisted in performing their function by any facts save those which, being ascertained with certainty, affect the scope of legislative power.
A recognition of the distinction between the classes of facts I have mentioned goes far towards providing the solution of the problems involved in the present case. Indeed it appears to me to lead inevitably to the answer to the question whether the provisions of the Act relating to the Australian Communist Party are valid. These provisions purport to dissolve the Party and to forfeit what remains of its property after its liabilities are provided for. There is no general power in the Parliament to deal with associations in such a manner; and the powers I have mentioned, which alone are relied upon as sufficient for the purpose, plainly cannot suffice unless facts existing at the passing of the Act gave them a wide enough range. The Court can take judicial notice of the fact that in October 1950 international tension had reached a point of real danger to Australia. The possibility of a war breaking out in the near future was by no means to be overlooked. In that situation the defence power, at least, had a wider application than it has at times when no danger of war appears; but, even so, it was not possible to see, in the light only of that situation, a relation between any of the powers referred to and a law dissolving a specified association and confiscating its property. The question therefore is whether additional facts, relating to the Australian Communist Party, may be taken into account as relevant to the ambit of power.
Some facts relating to the Australian Communist Party are alleged in the recitals in the preamble to the Act, and others may be said to be implied by the word "Communist" in the name of the Party. Such facts are in their nature controversial, and evidence which might be adduced with respect to them in the present litigation could not enable findings to be made which would necessarily be proper in other litigation challenging the validity of the Act. But facts of this kind, even if they could be conclusively established, do not go to the question of power, but go only to the ​question whether this legislation would, in practical result, conduce to an end within power. There is an essential difference between, on the one hand, a law providing for the dissolution of associations as to which specified facts exist and, on the other hand, a law providing specially for the dissolution of a particular association. The first law may be supportable, under the defence power for example, for the reason that a relevance to the subject of the power, sufficient to give the law the character which attracts validity, is to be seen by considering the nature of the specified facts which the law makes the condition of its operation. The other law cannot be upheld, because the operation of the law is independent of any facts peculiar to the association, and a consideration of its legal effect does not disclose any relevance to the subject of the power. The point of fundamental importance is that, before a measure can be pronounced valid, a capacity to assist defence, or a sufficient relevance to another subject of power, must be perceivable in what the law itself does, not in what will follow when it does it. Turn to facts concerning the character, objects, activities or propensities of an association which is made the specific subject of a law, and you turn away from the relevant inquiry; you are looking no longer at the legal operation of the law but at the practical results likely to follow in the train of its operation; you are concerning yourself, not with power, but with matters which provide a reason for a purported exercise of power.
It follows that, in my opinion, the Court cannot be assisted in this case by taking into its consideration, either with or without evidence, facts of the kinds alleged in the recitals or any facts as to the nature of communist doctrines or the tendencies which espousal of them may induce. It must take the powers of the Parliament as they stood in October 1950, having regard, so far as the defence power is concerned at least, to the danger of war as it could then be seen to exist, and it must compare with those powers the character of the Act as disclosed by nothing else than its operation in law. If this be done, the provisions applying to the Australian Communist Party must be held, in my opinion, to be invalid, whatever may be the truth as to matters with which that Party is or may be charged.
I turn now to the provisions of the Act as to bodies of persons to which s. 5 applies. Their operation is to dissolve any such body of persons and forfeit its property if the Governor-General declares the body an unlawful association. He is authorized to do so if satisfied that the body answers one or more of the descriptions contained in s. 5 (1) and that the continued existence of the body ​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.
The descriptions provided in s. 5 (1) all involve some form or degree of connection with the Australian Communist Party or with communism, but they contain nothing else which could be suggested to have any relevance to any head of legislative power. Considerations similar to those which lead me to the conclusions I have stated in relation to the provisions concerning the Australian Communist Party lead me to the conclusion that none of the powers relied upon to support the Act is attracted by the descriptions which s. 5 contains of the bodies of persons to whom that section applies. Since the Commonwealth Parliament has no power under the Constitution to legislate upon the general topic of the dissolution of voluntary associations, it follows from the conclusion stated that if the provisions in question are to be upheld it must be upon the ground that they are brought within power by the stipulation for the Governor-General's satisfaction that the continued existence of the body would be prejudicial to the matters referred to in s. 5 (2).
Section 5 provides for what is in effect a right of appeal from the Governor-General's satisfaction that the body is one which answers any of the descriptions in s. 5 (1), but it does not provide for any form of challenge to his satisfaction as to the prejudicial character of the continued existence of the body. In the absence of any such provision, a declaration of this satisfaction is, in my opinion, immune from challenge or examination in any court upon any ground. It was strongly urged on behalf of the defendants that if it were shown that the Governor-General, upon the materials before him in relation to a body which he declares an unlawful association under the section, could not have the necessary satisfaction without misconceiving the legal significance of the expression "activities prejudicial to the security and defence of the Commonwealth" &c., it would be competent for the Court to hold his declaration to be unauthorized and of no effect. I find it impossible to accede to this argument. The section on its face will bear no other meaning than that the Governor-General is to form an unchallengeable judgment as to whether the continued existence of the body will have the necessary tendency. In sharp contradistinction to the provision for judicial review of his opinion as to whether a body is one to which the section applies, is the very limited provision that the Executive Council shall not advise the Governor-General to make a declaration unless the material upon ​which the advice is founded has first been considered by a statutory committee. It is not required that the advice tendered to the Governor-General shall be consistent with the opinion formed by the committee. In the face of this contrast, the inference is irresistible that it is left to the Executive Council to give such advice as it thinks proper, being assisted but not controlled by the views of the committee. To hold that nevertheless a court may review the legal conceptions which underlie the advice would be to ignore the plain meaning of the legislation. Moreover, it is in the nature of things practically, if not totally, impossible for a court to know in a given case either what those legal conceptions were or to what facts they were applied; and I find it impossible to attribute to the legislation any other intention than that the Governor-General may exercise his power with complete immunity from judicial interference. Finally, it must be remembered that the satisfaction with which alone the section is concerned is the satisfaction of the Governor-General acting with the advice of the Executive Council. So acting he has not to consider for himself either questions of fact or questions of law, but will be satisfied as he may be advised.
The effect of s. 5 (2), therefore, is that if the Governor-General is satisfied that a body of persons is one to which the section applies and the appropriate court does not decide that it is not such a body, the Governor-General is empowered to declare that body an unlawful association subject only to his being satisfied upon the advice of the Executive Council (as to the correctness of which in law or in fact no sort of challenge can be made) that the continued existence of the body would be prejudicial to certain matters as to which the Parliament has legislative power; and after the lapse of a specified period from the publication of that declaration the statute operates by its own force to dissolve the body and expropriate its property. I have stated the effect of the legislation in this way in order to draw attention to what I consider a crucial distinction between this enactment and certain other kinds of legislation by which powers are made exercisable conditionally upon the formation of an opinion as to the scope of a subject upon which the Constitution enables the Parliament to make laws. Such measures frequently have this in common with the provisions I am considering, that the opinion formed is unexaminable for error of fact or of law; yet though, for this reason, they enable the authority who forms the opinion to act upon his own conception of the scope of a parliamentary power, they may themselves be valid exercises of that power. That is so in two classes of cases, namely, those in which ​the authority conferred is a power of subordinate legislation, and those in which the authority conferred is expressly or impliedly limited by reference to the purpose with which it may be exercised.
It has been held repeatedly that the Governor-General may be validly authorized to make such regulations as appear to him to be necessary or expedient for the defence of the Commonwealth, and yet that the Court may declare any regulations he makes to be invalid if they exceed the scope of the defence power. The reasoning which produces this result appears to me to involve the following steps: (i) a law conferring a power to promulgate subordinate legislation within the limits of legislative powers possessed by the Parliament is valid as being itself within those limits (Roche v. Kronheimer; Huddart Parker Ltd. v. The Commonwealth) but it cannot be within those limits if it purports to authorize subordinate legislation transcending them; (ii) therefore a law which confers power on the Governor-General to make regulations if he is of a specified opinion, must be construed as authorizing only legislation as to which two conditions are satisfied, namely that the Governor-General holds the required opinion and that the legislation is such as would be valid if enacted by the Parliament itself; (iii) therefore a regulation as to which the Governor-General holds the specified opinion is nevertheless open to be tested for validity by considering what it says and does, and applying to it the same test as would be applied to a statute in similar terms. The point to be observed is that the law conferring the regulation-making power is not construed as making it a condition of the validity of regulations that the Governor-General shall have observed the proper limits of the defence power in forming his opinion. Consequently the Court has to consider, not the soundness, reasonableness or factual basis of the Governor-General's opinion, but only whether the regulations fall outside the ambit of the constitutional power itself (Stenhouse v. Coleman).
Again, it is true that laws conferring administrative or executive powers upon designated persons have been upheld in certain cases, notwithstanding that the powers have been made exercisable in consequence of the formation of an opinion as to what is necessary or expedient for the defence of the Commonwealth. This has been held, I think, only in cases where the relevant legislation could not be properly construed as authorizing acts of a nature or for a purpose unrelated to the defence power. The Court cannot ​examine acts done under such legislation for the purpose of considering whether the person entrusted with authority correctly understood and observed the limits of the defence power in forming his opinion, for no condition that he shall do so is read into the legislation; but there is nothing to preclude the Court from considering whether the designated person in truth held the requisite opinion, or whether his acts were of the nature, and were done for the purpose, which alone the legislation can be held to authorize consistently with the limits of the defence power.
This seems to me to be the principle underlying the cases of Lloyd v. Wallach, In re Walsh and Little v. The Commonwealth. The legislation considered in each of those cases came into operation in time of war, when much more might be validly authorized under the defence power than at other times. The consequence of this was that the kinds of acts which might be authorized under that power, and the purposes for which under that power they might be authorized to be done, covered a large field. In none of the cases cited was it attempted to be shown that the purpose for which the executive acts in question were done was foreign to the purpose of defence as it existed at the relevant time; but none of them suggests that their purpose was unexaminable for relevance to the defence power. The basis of those cases appears to me to have been that the defence power was wide enough at the time to support legislation authorizing the acts in question to be done for a defence purpose. If the acts had been of such a nature, or such consequences had been attached to them by legislation, that even the existence of a defence purpose would not give them or their consequences a sufficient relevance to defence, the reasoning of those members of the Court who held invalid regs. 3 to 6B in the Jehovah's Witnesses Case, would have applied to invalidate the legislation authorizing them or the legislation attaching consequences to them. And if the acts authorized, though of such a nature as to be capable of assisting defence, if done for a defence purpose, had been authorized to be done for purposes extraneous to the power of defence, the legislation authorizing them must have been held invalid, as is shown by Shrimpton v. The Commonwealth
The case is very different where that which a measure purports to do is not within any power of the Parliament unless a sufficient connection with power is supplied by making the operation of the ​measure conditional upon an executive judgment which is unexaminable and involves the formation of an opinion as to the scope of a legislative power. In such a case the condition cannot bring the statute within power, for ex hypothesi the condition may be satisfied, and the statute according to its terms may operate, in consequence of a wrong opinion as to the scope of the selected power. Thus, under the Act now in question, notwithstanding that the Parliament has no general power to dissolve associations and forfeit their property, a body of persons to whom s. 5 applies might become dissolved and its property forfeited in consequence of an executive judgment based upon an unexaminable opinion as to what is capable of being considered prejudicial to a matter within the scope of the defence power or the incidental power, even though the opinion may be completely erroneous. I find it impossible to refer to any head of power legislation of which that can be said.
The provisions of the Act relating to individuals resemble in some respects those which apply to bodies of persons. Section 9 applies to a person who answers any of several descriptions which s. 9 (1) contains. A person to whom the Governor-General is satisfied that s. 9 applies, and as to whom an appropriate Court does not make any contrary finding, is subjected by the Act to a variety of consequences if the Governor-General, being satisfied that that person is engaged or is likely to be engaged 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, makes a declaration accordingly under s. 9 (2). For reasons similar to those I have stated in connection with s. 5 (2), I am of opinion that s. 9 (2) is not a valid exercise of the defence power, the incidental power, or the implied power to legislate against subversive activities. It cannot be upheld unless as incidental to a power which will support some one or more of the provisions by which consequences are attached to the making of a declaration by the Governor-General.
One of those consequences, created by s. 10 (1) (c), is incapacity to hold an office in an industrial organization to which the section applies or in a branch of such an organization. The organizations to which the section applies are such as the Governor-General declares. He is authorized to make a declaration in respect of any industrial organization if he is satisfied that a substantial number of its members are engaged in a vital industry; and the industries referred to as vital are certain named industries and any others which in the opinion of the Governor-General are vital to the security and defence of Australia: s. 10 (3). It is not ​within Commonwealth legislative competence to make laws upon the subject of capacity to hold office in industrial organizations generally, and the definition of "industrial organizations" in s. 3 make it clear that that expression in s. 10 (1) (c) is not limited to organizations registered under the Commonwealth Conciliation and Arbitration Act. Nor is it possible, I think, consistently with the scheme of the legislation, to apply the presumption of severability created by s. 15A of the Acts Interpretation Act 1901–1948 so as to import such a limitation. Section 10 (1) (c) therefore cannot be supported under par. (xxxv.) of s. 51 of the Constitution. Nor can it be supported under the defence power by reason of the fact that it operates only with respect to industrial organizations as to which the Governor-General has the satisfaction prescribed by s. 10 (3). The considerations I have stated in relation to s. 5 (2) apply in this connection also. There is therefore no power of the Parliament which will support s. 10 (1) (c).
The other disabilities which are made statutory consequences of a declaration under s. 9 (2) relate to matters which are clearly within Commonwealth legislative power. These disabilities are imposed by s. 10 (1) (a) and (b) and s. 14. It may be accepted as a general proposition that if the Parliament has power to impose a disability in relation to a particular matter, e.g. ineligibility for employment in the Commonwealth public service, it may do so upon any condition it may see fit to select. But it does not follow that, if the condition selected depends upon the doing of some act, such as the making of a declaration, which requires statutory authorization, the power which supports the imposition of disabilities will also support a provision authorizing the act to be done. I should think it clear that the Governor-General's declaration provided for by s. 9 (2) requires statutory authorization in order to be privileged under the law of defamation, having regard to the grave imputations it must contain; and in my opinion the statement of the Governor-General's satisfaction which s. 9 (2) authorizes to be made in the declaration lacks such a specific connection with any of the powers under which disabilities of the kind in question might be imposed to be capable of authorization in exercise of those powers.
I am therefore of opinion that s. 9 (2) is invalid; and if it is, ss. 10 (1) and 14, the operation of which is conditional upon a declaration being in force under s. 9 (2), must fall with it.
The remaining sections of the Act cannot stand by themselves and are therefore invalid.
​The result is that in my opinion Question 1 should be answered: (a) No, and (b) No; and Question 2 should be answered: The whole Act is invalid.
Questions in case answered as follows:—
    1. (a) No.
    1. (b) No.
    2. Yes—wholly invalid.
Solicitor for the plaintiffs (Action No. 11 of 1950) The Australian Communist Party, Gibson and Campbell; (Action No. 11 of 1950) Bulmer and Others (for the Building Workers' Industrial Union) and Purse; (Action No. 18 of 1950) the Australian Coal and Shale Employees' Federation, Williams, Harold Rich.
Solicitors for the plaintiffs (Action No. 12 of 1950) the Waterside Workers' Federation of Australia and Healy; (Action No. 17 of 1950) the Federated Ironworkers' Association of Australia and McPhillips, C. Jollie-Smith Co.
Solicitors for the plaintiffs (Action No. 13 of 1950) the Australian Railways Union and Brown, Slater Gordon, Melbourne.
Solicitors for the plaintiffs (Action No. 15 of 1950) the Amalgamated Engineering Union (Australian Section) and Rowe; (Action No. 16 of 1950) the Seamen's Union of Australia and Elliott, Sullivan Bros.
Solicitor for the defendants, K. C. Waugh, Crown Solicitor for the Commonwealth.
Solicitors for the intervenants (Action No. 39 of 1950) the Federated Ship Painters and Dockers Union; (Action No. 40 of 1950) the Sheet Metal Workers' Union; and (Action No. 41 of 1950) the Federated Clerks' Union of Australia (New South Wales Branch) and Maurice John Rodwell Hughes, C. Jollie-Smith Co.
J. B.
* ↑ (1942) 85 C.L.R., at p. 424.
* ↑ (1944) 69 C.L.R., at 471.
* ↑ (1945) 71 C.L.R., at p. 178.
* ↑ (1941) 65 C.L.R., at p. 278.
* ↑ (1946) 73 C.L.R., at p. 176.
* ↑ (1946) 73 C.L.R. 187.
* ↑ (1946) 73 C.L.R. 213.
* ↑ (1949) 79 C.L.R. 116.
* ↑ (1949) 79 C.L.R. 43.
* ↑ (1941) 65 C.L.R., at p. 278.
* ↑ (1945) 71 C.L.R., at p. 178.
* ↑ (1949) 79 C.L.R., at p. 116.
* ↑ (1949) 79 C.L.R., at p. 148.
* ↑ (1949) 79 C.L.R., at p. 84.
* ↑ (1947) 74 C.L.R. 400.
* ↑ (1947) 75 C.L.R. 445.
* ↑ (1921) 29 C.L.R. 329.
* ↑ (1944) 69 C.L.R., at p. 470.
* ↑ (1944) 69 C.L.R., at p. 470.
* ↑ (1915) 20 C.L.R. 299.
* ↑ (1942) A.L.R. 359.
* ↑ (1947) 75 C.L.R. 94.
* ↑ (1943) 67 C.L.R. 116.
* ↑ (1943) 69 C.L.R. 613.