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

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​Williams J. We have before us certain questions asked in a case stated by Dixon J. in eight actions brought to obtain declarations that the provisions of the Communist Party Dissolution Act 1950, which came into force on 20th October 1950, are ultra vires the Constitution and invalid and injunctions restraining the Commonwealth and the Ministers named as defendants from acting thereunder to the prejudice of the plaintiffs. The questions asked in the case stated are as follows:—"1 (a) Does the decision of the question of the validity or invalidity of the provisions of the Communist Party Dissolution Act 1950 depend upon a judicial determination or ascertainment of the facts or any of them stated in the fourth, fifth, sixth, seventh, eighth and ninth recitals of the ​preamble of that Act and denied by the plaintiffs, and (b) are the plaintiffs entitled to adduce evidence in support of their denial of the facts so stated in order to establish that the Act is outside the legislative power of the Commonwealth? (2) If No to either part of question 1, are the provisions of the Communist Party Dissolution Act 1950 invalid either in whole or in some part affecting the plaintiffs?"
The Communist Party Dissolution Act contains a number of recitals. The first three recitals refer to the powers of the Commonwealth Parliament to make laws for the peace, order and good government of the Commonwealth with respect to the naval and military defence of the Commonwealth (s. 51 (vi.) of the Constitution), the executive power of the Commonwealth (s. 61 of the Constitution) and the incidental power (s. 51 (xxxix.) of the Constitution) and are of a formal nature. The next six recitals refer to the alleged aims, objects and activities of the Australian Communist Party. They allege that this Party, in accordance with the basic theory of communism, as expounded by Marx and Lenin, engages in activities or operations designed to assist or accelerate the coming of a revolutionary situation, in which the Australian Communist Party, acting as a revolutionary minority, would be able to seize power and establish a dictatorship of the proletariat. They also allege that the party engages in activities or operations designed to bring about the overthrow or dislocation of the established system of government of Australia and the attainment of economic, industrial and political ends by force, violence, intimidation or fraudulent practices. They also allege that the Australian Communist Party is an integral part of the world communist revolutionary movement, which, in the King's dominions and elsewhere, engages in espionage and sabotage and in activities or operations of a treasonable or subversive nature. They also allege that activities or operations of, or encouraged by the Australian Communist Party and its members or officers and other persons who are communists, are designed to cause, by means of strikes or stoppages of work, and have, by those means, caused dislocation, disruption or retardation of production or work in certain industries vital to the security and defence of Australia (including the coal-mining industry, the iron and steel industry, the engineering industry, the building industry, the transport industry and the power industry).
The ninth recital states that it is necessary for the security and defence of Australia and for the execution and maintenance of the Constitution and of the laws of the Commonwealth, that the ​Australian Communist Party, and bodies of persons affiliated with that Party, should be dissolved and their property forfeited to the Commonwealth, and that members and officers of that Party or of any of those bodies and other persons who are communists should be disqualified from employment by the Commonwealth and from holding office in an industrial organization a substantial number of whose members are engaged in a vital industry.
Section 3 of the Act defines "communist" to mean a person who supports or advocates the objectives, policies, teachings, principles or practices of communism, as expounded by Marx and Lenin. It defines "the specified date" to mean the tenth day of May, One thousand nine hundred and forty-eight, being the last day of the National Congress of the Australian Communist Party by which the constitution of the Australian Communist Party was adopted. It defines "unlawful association" to mean the Australian Communist Party or a body of persons declared to be an unlawful association under this Act.
The Act has three main branches. In the first branch there is s. 4, which declares the Australian Communist Party to be an unlawful association, dissolves it, and provides for the vesting of its property in a receiver.
In the second branch there are ss. 5, 6 and 8. Section 5 (1) provides that the section applies to any body of persons, corporate or unincorporate, not being an industrial organization registered under the law of the Commonwealth or a State—(a) which is, or purports to be, or, at any time after the specified date and before the date of commencement of this Act, was, or purported to be, affiliated with the Australian Communist Party; (b) a majority of the members of which, or a majority of the members of the committee of management or other governing body of which, were, at any time after the specified date and before the date of commencement of this Act, members of the Australian Communist Party or of the Central Committee or other governing body of the Australian Communist Party; (c) which supports or advocates, or, at any time after the specified date and before the date of commencement of this Act, supported or advocated, the objectives, policies, teachings, principles or practices of communism, as expounded by Marx and Lenin, or promotes, or, at any time within that period, promoted, the spread of communism, as so expounded; or (d) the policy of which is directed, controlled, shaped or influenced, wholly or substantially, by persons who—(i) were, at any time after the specified date and before the date of commencement of this Act, members of the Australian Communist Party or of the Central ​Committee or other governing body of the Australian Communist Party, or are communists; and (ii) make use of that body as a means of advocating, propagating or carrying out the objectives, policies, teachings, principles or practices of communism, as expounded by Marx and Lenin.
Section 5 (2) provides that 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 or of the laws of the Commonwealth, the Governor-General may, by instrument published in the Gazette, declare that body of persons to be an unlawful association. The words "security and defence" do not, in my opinion, connote more than defence and refer to defence against external aggression, while the words "execution or maintenance of the Constitution or of the laws of the Commonwealth" are a composite expression taken substantially from s. 61 of the Constitution and refer to the internal security of the Commonwealth. The words "the laws of the Commonwealth" refer to the system of laws enacted under the Constitution and, so to speak, to the Constitution in action. The sub-section therefore authorizes the Governor-General to make a declaration if he thinks that the continued existence of the body would be prejudicial to the external or internal security of the Commonwealth. There was some discussion during the argument as to whether the Governor-General could make the declaration if he was satisfied that the continued existence of the body would be prejudicial to one or other of these purposes without being satisfied as to either purpose in particular. But it seems to me that before the Governor-General could make a declaration he would have to be satisfied that the body is a body of persons to whom the section applies and that he would also have to be satisfied that the continued existence of the body would be prejudicial either to the security and defence of the Commonwealth or to be satisfied that the continued existence of the body would be prejudicial to the execution or maintenance of the Constitution or of the laws of the Commonwealth and that he could be satisfied that the continued existence of the body would be prejudicial to both these purposes. This construction fits in with s. 27 of the Act, which provides that when the continuance in operation of the Act is no longer necessary either for the security and defence of Australia or for the execution and maintenance of the Constitution and of the laws of the Commonwealth, the Governor-General shall make a Proclamation ​accordingly and thereupon the Act shall be deemed to have been repealed. Parliament must, therefore, have intended that the Act should continue in operation until the Governor-General is satisfied that it is no longer required for either purpose. If a position should arise in the future where the Governor-General is satisfied that the Act is no longer necessary for the one purpose, but still necessary for the other, it must necessarily follow that he could only make a declaration where he is satisfied that the continued existence of the body would be prejudicial to the purpose for which it is still necessary to keep the Act on foot. But s. 5 (2) does not provide that the declaration should state the ground or grounds of the Governor-General's satisfaction and all that the instrument need declare is that the body of persons is an unlawful association.
Section 5 (3) provides that the Executive Council shall not advise the Governor-General to make such a declaration unless the material upon which the advice is founded has first been considered by the committee therein mentioned. This committee acts in a purely executive capacity, for the threatened body of persons is not given an opportunity to appear before it or see or criticize or deny or supplement the material which the committee is considering.
Section 5 (4) provides that a body of persons declared to be an unlawful association may, within the specified time, apply to the appropriate court to set aside the declaration on the ground that the body is not a body to which this section applies. This sub-section confers a right to apply to the court to have the declaration set aside on one ground only and s. 5 does not confer a right to apply to the court to set aside the declaration on the ground that the continued existence of the body of persons would not in fact and law 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.
Section 6 provides that a body of persons in respect of which a declaration has been made under the Act, in the absence of a successful application to a court to set aside the declaration, shall, by force of the Act, upon the expiration of twenty-eight days after the publication of the declaration in the Gazette, be dissolved.
Section 8 provides that the instrument under the Act declaring a body of persons to be an unlawful association shall appoint a receiver of the property of that body and that upon the day upon which that instrument is published in the Gazette the property of that body shall, subject to the section, vest in the receiver. ​Section 15, which applies to the parliamentary declaration by s. 4 that the Australian Communist Party is an unlawful association and to bodies of persons declared to be unlawful associations by the Governor-General under s. 5, provides that it shall be the duty of a receiver of an unlawful association to take possession of the property of the association, to realize that property, to discharge the liabilities of the association and to pay or transfer the surplus to the Commonwealth.
The third branch comprises ss. 9 to 12 inclusive and relates to individuals. Section 9 (1) provides that the section applies to any person (a) who was, at any time after the specified date and before the date upon which the Australian Communist Party is dissolved by the Act, a member or officer of the Australian Communist Party; or (b) who is, or was at any time after the specified date, a communist.
Section 9 (2) provides that 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. It seems to me, applying the same reasoning mutatis mutandis as in the case of s. 5 (2), that under s. 9 (2) the Governor-General, before he could make a declaration, would have to be satisfied that a person is a person to whom the section applies and that that person is engaged or likely to engage in activities which are either prejudicial to the security and defence of the Commonwealth or to be satisfied that that person is engaged or likely to engage in activities which would be prejudicial to the execution or maintenance of the Constitution or of the laws of the Commonwealth, and that he could be satisfied that that person is engaged or likely to engage in activities prejudicial to both these purposes. The section does not prescribe the contents of the declaration, but it does provide that the Governor-General shall make a declaration accordingly. In the case of s. 9, therefore, unlike s. 5, it would be necessary for the Governor-General specifically to state the grounds of his satisfaction.
Section 9 (3) provides that the Executive Council shall not advise the Governor-General to make such a declaration unless the material upon which the advice is founded has first been considered by the committee therein mentioned (this is the same committee as that mentioned in s. 5 (3)). Under this sub-section, ​as in the case of s. 5 (3), the committee acts in a purely executive capacity and the threatened person is not given an opportunity to appear before it or see or criticize or deny or supplement the material on which the advice is based.
Section 9 (4) provides that a person in respect of whom such a declaration is made may, within the specified time, apply to the appropriate court to set aside the declaration on the ground that he is not a person to whom this section applies. This sub-section, like s. 5 (4), confers a right to apply to the court to have the declaration set aside on one ground only, and s. 9 does not confer a right to apply to a court to have the declaration set aside on the ground that the person was not a person who 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.
Section 10 (1) provides that a person in respect of whom a declaration is in force under this Act—(a) shall be incapable of holding office under, or of being employed by, the Commonwealth or an authority of the Commonwealth; (b) shall be incapable of holding office as a member of a body corporate, being an authority of the Commonwealth; and (c) shall be incapable of holding an office in an industrial organization to which this section applies or in a branch of such an industrial organization.
Section 10 (3) provides that where the Governor-General is satisfied that a substantial number of the members of an industrial organization are engaged in a vital industry, that is to say, the coal-mining industry, the iron and steel industry, the engineering industry, the building industry, the transport industry or the power industry, or any other industry which, in the opinion of the Governor-General, is vital to the security and defence of Australia, the Governor-General may, by instrument published in the Gazette, declare that industrial organization to be an industrial organization to which this section applies.
Section 12 (1) provides that upon the publication under sub-s. (3) of s. 10 of the Act of an instrument declaring an industrial organization to be an industrial organization to which that section applies, any office in that industrial organization or any branch thereof held by a person in respect of whom a declaration is in force under this Act shall, by force of this Act, but subject to this section, become vacant. The section goes on to provide that if the officer applies to the court to have the declaration set aside he shall be suspended from office pending the determination of the application ​and, if the application is dismissed, the office shall become vacant on the date of dismissal.
The Act contains a number of other important provisions, but they are mostly ancillary to the provisions to which I have referred and the latter provisions are sufficient, I think, to indicate the manner in which the Act operates in its three main branches. The outstanding character of the Act is that, in the words of Knox C.J. in Ex parte Walsh and Johnson, the enactment in its main provisions "prohibits no act, enjoins no duty, creates no offence, imposes no sanction for disobedience to any command, prescribes no standard or rule of conduct". It operates to dissolve the Australian Communist Party and to forfeit its property to the Commonwealth, and to make other bodies of persons who were in the prescribed period or are likely to be tainted with communism, corporate or unincorporate, liable to be dissolved and their property forfeited to the Commonwealth, and to make persons who were in the prescribed period or are communists liable to be deprived of important contractual rights without creating any offence the commission of which will entail such consequences, and indeed without proof that they have committed any offence against any law of the Commonwealth, without a trial in any court, and without such bodies or persons having any right to prove that they have not done anything 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. In the case of s. 5 (2), it is provided that the Governor-General must be satisfied that a body of persons is a body to which the section applies and that the continued existence of the body would be prejudicial to the security and defence of the Commonwealth or the execution or maintenance of the Constitution or of the laws of the Commonwealth. In the case of s. 9 (2), it is provided that the Governor-General must be satisfied that the person is a person to whom the section applies and that that person is engaged in, or is likely to engage in, activities prejudicial to such security and defence or to the execution or maintenance of the Constitution and of such laws. In the case of s. 4 there need be no similar satisfaction and the basis of the section is that Parliament is satisfied from material within its knowledge, as the ninth recital indicates, that it is necessary for the security and defence of Australia and for the execution and maintenance of the Constitution and of the laws of the Commonwealth that the Australian Communist Party should be dissolved and its property forfeited to the Commonwealth. ​Accordingly the Act is in effect an assertion by Parliament that it can decide for itself or leave it to some authority other than a judicial organ of the Commonwealth to decide that facts exist which are sufficient in law to create a nexus between the particular legislation and such one or more of the constitutional legislative powers of the Commonwealth as are relied upon to support the legislation. Such an assertion raises a constitutional question of profound importance.
It was contended on behalf of the defendants that such an assertion does not arise in the case of ss. 5 (2) and 9 (2) because these sub-sections on their true construction impose a condition which does not make the satisfaction of the Governor-General conclusive as to the whole proposition formulated in sub-s. (2), but makes it necessary that certain elements should exist in fact and in law. Thus according to the contention it would be necessary in the case of s. 5(2) that the continued existence of the body of persons would be in fact and law prejudicial to what is defence in fact and law, and in the case of s. 9 (2) that the persons are engaged or are likely to engage in activities which are in fact and law prejudicial to what is defence in fact and law. In my opinion it is impossible to place such a construction on the sub-sections. The plain grammatical meaning of their provisions is that the Governor-General is to have an unfettered administrative discretion to decide whether the continued existence of the body of persons would be prejudicial or the 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. Further, if there could be any doubt, it is entirely removed by the provisions of ss. 5 (4) and 9 (4), giving the declared bodies of persons and persons the right to have the declarations set aside on the ground that they are not bodies or persons to whom the sections respectively apply. It would be altogether unreasonable to attribute to Parliament an intention that the satisfaction of the Governor-General should be open to review to this limited extent if it were intended that it was to be open to review in other respects. The words are apt and apt only to leave the whole decision to the Governor-General without any qualification. See the illustrations of the effect of similar expressions given by Lord Atkin in Liversidge v. Anderson. The effect of such a discretion in the case of a Minister of the Crown is described by Lord Greene M.R. in B. Johnson & Co. (Builders) Ltd. v. Minister of Health as follows: "every Minister of the ​Crown is under a duty, constitutionally, to the King, to perform his functions honestly and fairly, and to the best of his ability; but his failure to do so, speaking quite generally, is not a matter with which the courts are concerned at all. As a Minister, if he acts unfairly, his action may be challenged and criticized in Parliament". This description would, I should think, apply a fortiori to a discretion given to the Governor-General, that is, to the Governor-General acting with the advice of the Federal Executive Council. Sections 5 and 9 express a plain intention to keep the courts out of the arena except to the limited extent prescribed. Parliament has sought to decide for itself or to confer on the Governor-General power to decide whether the continued existence of certain bodies of persons or the activities of certain individuals is prejudicial to the security and defence of the Commonwealth or the execution and maintenance of the Constitution or of the laws of the Commonwealth. But it is clear to my mind that it is the duty of the Court in every constitutional case to be satisfied of every fact the existence of which is necessary in law to provide a constitutional basis for the legislation. In the case of some legislative powers it may only be necessary that one fact should exist. In the case of s. 51 (xix.) it is sufficient that a person is in fact and law an alien to authorize the Parliament to subject him to a law which is in character and effect a law with respect to aliens. In the case of s. 51 (xxvii.), it is sufficient that a person is in fact and law an immigrant to authorize the Parliament to subject him to a law which is in character and effect a law with respect to immigration. In the case of s. 51 (xxxv.), there must be an industrial dispute which is in fact and law an industrial dispute extending beyond the limits of any one State before the Parliament can legislate under this paragraph. The principle is the same in the case of the defence power, s. 51 (vi.). If legislation under this power is challenged, the Court must be satisfied that the fact or facts exist which bring the legislation within the scope of the power. As the power is one of indefinite extent and expands and contracts according to the dangers to the security of Australia that exist from time to time, the power is peculiarly one with respect to which it is the duty of the Court to be satisfied of such facts. The commencement of hostilities, especially if the conflagration is widespread and in close proximity to Australia, authorizes legislation which would not be justified in times of peace. In recent years it has been the duty of the Court during the second world war and its aftermath to decide on numerous occasions whether legislation was within the scope of the defence power. In those years ​the problem was to determine its extent during hostilities and during the period of transition from hostilities to peace. In times of peace Parliament can pass all legislation reasonably necessary to prepare for war, and it is clear, I think, that the extent of the power will increase in times of peace where the international situation is such that it can reasonably be apprehended that hostilities, especially hostilities on a large scale, are likely to break out in the near future. As Dixon J. succinctly said in Sloan v. Pollard, the operation of the defence power and the ascertainment of the practical measures which it authorizes "must continue to depend upon the facts as they exist from time to time". It is not the function of the Court to decide what measures are required from time to time. Questions of policy are not for the Court but for the Parliament and the Executive. But it is the imperative duty of the Court to examine the character and effect of the law and decide whether it is a law with respect to the naval and military defence of the Commonwealth. During hostilities there are many facts which in the public interest cannot be disclosed, and it is necessary that the Parliament and the Executive charged with the defence of the nation should be accorded the widest possible latitude of discretion. In this period the Court should, in my opinion, uphold the legislation if, in accordance with the test laid down in Farey v. Burvett, per Isaacs J., "the measure questioned may conceivably in such circumstances even incidentally aid the effectuation of the power of defence". In peace time the public interest is not usually such that the relevant facts cannot be disclosed and the test may possibly be more aptly described by substituting the word "reasonably" for the word "conceivably", and in peace time the legislation, to be reasonably capable of aiding defence, must be reasonably necessary for the purpose of preparing for war. But the distinction is a slight one (Peacock's Case).
It follows from what I have said that, in order that s. 4 of the Communist Party Dissolution Act could be authorized by the defence power, it must be proved that facts existed on 20th October 1950 which made it reasonably necessary in order to prepare for the defence of Australia that as a preventive measure the Australian Communist Party should be dissolved and its property forfeited to the Commonwealth. The validity of this section raises a problem which is, I think, similar to those which arise with respect to ss. 5 and 9 of the Act, for there is in essence no distinction between ​Parliament acting in this way on its own initiative and Parliament delegating the initiative to some person or body. This leads to a consideration of the effect of the recitals. In a valid Act recitals should have, in my opinion, the effect that Parliament intends them to have. Parliament can, if it expresses a clear intention, make the facts narrated in the recitals conclusive for the purposes of the Act whether such facts are correct or not. But ordinarily recitals would at most be taken for truth until contradicted and are therefore only prima-facie evidence of the facts: Halsbury's Laws of England, 2nd ed., Vol. 31, pp. 568, 569; Maxwell on The Interpretation of Statutes, 9th ed. (1946), p. 319; Craies on Statute Law, 4th ed. (1936), pp. 41–44. But where the constitutional validity of an Act is impeached, it is difficult to see how the recitals could be in any different position to the operative part of the Act. In Attorney-General for the Commonwealth of Australia v. Colonial Sugar Refining Co. Ltd., the Privy Council pointed out that the burden rests on those who affirm that the capacity to pass an Act was put within the powers of the Commonwealth Parliament to show that this was done. The Commonwealth Parliament cannot by including recitals in an Act discharge this burden. Accordingly, where the constitutional validity of an Act is in issue, the recitals cannot, in my opinion, be more than a statement of the reasons why Parliament enacted the law. They indicate to the Court what Parliament believes to be the constitutional basis of the Act.
As the Chief Justice said in the Uniform Tax Case "The Court should treat this expression of the view of Parliament with respect … But such a declaration cannot be regarded as conclusive". Where the constitutional validity of an Act is challenged, it is the actual facts and only the actual facts which count and the real question that arises is as to the actual facts which are relevant and the legal effect of those facts. During the recent hostilities the only facts before the Court were, in most of the cases, notorious public facts of which the Court could take judicial notice. They were few in number and were confined to such facts as that hostilities were raging, the proximity to Australia of the conflict from time to time, the need for production of war materials, the necessity of making the best use of the available manpower, and the effect upon the national economy of the large number of men and women engaged in the armed forces and the production of munitions and the shortage of essential civilian requirements, particularly houses and certain kinds of goods. It ​was the existence of these facts or some of them which induced the Court to hold that many regulations under the National Security Act were valid during hostilities which in times of peace would be beyond the scope of the defence power. But it does not seem to me that the Court should be confined to notorious public facts of which it can take judicial notice. All the facts which are relevant to the decision of the constitutional issue must be admissible in evidence and the fact that the Court can take judicial notice of some facts merely expedites the manner of their proof. The facts which are not capable of proof in this way must be proved in such other ways as the laws of evidence allow. Such facts were proved and acted upon in Jenkins v. The Commonwealth and in Sloan v. Pollard.
Could there be any relevant facts, notorious or otherwise, sufficient to bring the Communist Party Dissolution Act within the scope of the defence power on 20th October 1950? In my opinion there could not. The defence power in peace time authorizes any legislation which is reasonably necessary to prepare for war, including, as I have said, any legislation which would be authorized by an expansion of the power in view of the increasing probability of imminent war. Any conduct which is reasonably capable of delaying or of otherwise being prejudicial to the Commonwealth preparing for war would be conduct which could be prevented or prohibited or regulated under the defence power. Amongst such conduct there could be included, I should think, most, if not all, of the serious misdoings with which communist bodies and communists are charged in the recitals. But the legislation would have to define the nature of the conduct and the means adopted to combat it, so that the Court would be in a position to judge whether it was reasonably necessary to legislate with respect to such conduct in the interests of defence and whether such means were reasonably appropriate for the purpose. The Communist Party Dissolution Act does none of these things. On the basis of an assertion by Parliament or the Executive that communist bodies and communists are acting and are likely to act in a manner prejudicial to security and defence the Act proceeds to dissolve these bodies and deprive communists of certain contractual rights. Section 4 of the Communist Party Dissolution Act is in substance simply a law for the winding up of the Australian Communist Party and distribution of its assets. Section 5 is in substance simply a law for the winding up of the bodies therein mentioned and distribution of their assets. Sections 9, 10 and 14, which are ​interdependent and must be read together, are in substance simply a law for the deprivation of certain individuals of certain contractual rights. Legislation for the winding up of bodies corporate and unincorporate and the distribution of their assets and for the deprivation of individuals of contractual rights is not legislation which in general falls within the sphere of the Commonwealth Parliament but is reserved to the States. As was said by this Court in R. v. Foster in analogous circumstances, "apart from the defence power, control of these matters is in most respects outside Commonwealth legislative power and within State legislative power. Such matters come within Federal power because legislation with respect to them is legislation upon incidents in the exercise of the power with respect to defence". See also The University Case; The Industrial Lighting Regulations Case; Crouch v. The Commonwealth. Sections 4, 5, 9 and 10 of the Communist Party Dissolution Act can only come within the defence power if legislation with respect to them is legislation upon incidents in the exercise of the defence power. The defence power can only invade subjects which are in most respects within the domain of State legislation to the extent to which it is reasonably necessary to do so for the purposes of defence. It is therefore largely a matter of degree. The overt acts set out in the recitals alleged to be prejudicial to the security and defence of Australia are that the Australian Communist Party is part of a world communist revolutionary movement which engages in espionage and sabotage and in activities or operations of a treasonable or subversive nature and promotes strikes and stoppages of work and so retards production in vital industries and by inference interferes with preparing Australia for war. But none of this conduct is prevented or prohibited or made an offence by the operative provisions of the Act. If the Act did this, the Court could consider the conduct prohibited and decide whether it was capable of being so prejudicial and, if it considered that it was, pronounce in favour of the constitutional validity of the Act. As a preventive measure the Act could then provide that injunctions should be granted restraining bodies of persons or persons so conducting themselves and as a punishment the Act could provide that bodies of persons or persons convicted of such conduct in a court should be punished, inter alia, in the manner provided by the Communist Party Dissolution Act or in some other manner. In my opinion legislation to wind up bodies corporate or unincorporate and to dispose of their assets ​or to deprive individuals of their civil rights or liberties on the mere assertion of Parliament or the Executive that they are conducting themselves in a manner prejudicial to security and defence, is not authorized by the defence power or the incidental power in peace time. Legislation of this nature can only be valid in times of grave crisis during hostilities waged on a large scale, and it must, even then, be limited to such preventive steps as are reasonably necessary to protect the nation during the crisis.
Two cases which were much canvassed during the argument were Lloyd v. Wallach and Ex parte Walsh. In my opinion the legislation there upheld is legislation which could only be justified during such a crisis. In Lloyd v. Wallach Isaacs J. said that the essence of the regulation was the power of detention in military control of naturalized persons where there was reason to believe they were disaffected or disloyal. This regulation was limited to naturalized persons, but the regulation in Ex parte Walsh extended to any person with respect to whom the Minister was satisfied that he should be detained with a view to preventing that person acting in any manner prejudicial to the public safety or the defence of the Commonwealth. These cases are strictly only decisions that the regulations there in question were authorized by the War Precautions Act and the National Security Act respectively, and the nature and extent of the defence power itself was not discussed. But it necessarily follows, I think, from these decisions that it is incidental to defence that during such a crisis a person should be detained without a trial and without having been charged with any offence where a minister is satisfied that he is disloyal (Little v. The Commonwealth). The case of Welsbach Light Co. of Australasia Ltd. v. The Commonwealth was also much canvassed during the argument. The Court was there concerned with certain provisions of the Trading with the Enemy Act 1914. Legislation which prohibits or regulates trading with the enemy in war time is obviously within the defence power. It is unnecessary for me to express any opinion upon the correctness of the views expressed by the Court upon the points under the Trading with the Enemy Act which actually arose during the argument. Assuming the case was rightly decided, it is not a case that has any bearing upon the extent of the defence power in peace time. It deals with matters which may be left to the judgment of the Executive during hostilities. I cannot, however, ​agree with the statement of Isaacs J. that defence includes every act which, in the opinion of the proper authority, is conducive to the public security. Such a principle was consistently repudiated by this Court in all the cases with respect to the defence power decided during the recent hostilities. Section 13A of the National Security Act 1939-1940 authorized the Governor-General to make such regulations making provision for requiring persons to place themselves, their services and their property at the disposal of the Commonwealth as appeared to him to be necessary or expedient for securing the public safety, the defence of the Commonwealth and the Territories of the Commonwealth, or the efficient prosecution of any war in which his Majesty was or might be engaged. The Court never considered itself bound by any such opinion of the Governor-General, but examined the operation of the regulations which were made pursuant to that opinion and itself determined whether the regulations were in their operation justified as delegated legislation under the defence power. See, for instance, Reid v. Sinderberry. The Trading with the Enemy Act at least laid down a standard of conduct because s. 3 provided that any person who traded with the enemy should be guilty of an offence. It is impossible, in my opinion, to rely on any of these cases when examining the scope of the defence power in peace time and, in any event, the legislation there discussed was legislation of a different character because in Lloyd v. Wallach and In re Walsh the persons detained were not deprived of their contractual or proprietary rights and in the Welsbach Case the person had to be convicted of an offence against the Act before he could be imprisoned or fined or his property confiscated.
The case of Adelaide Company of Jehovah's Witnesses Inc. v. The Commonwealth was also much canvassed during the argument. In that case regs. 3 to 6B, both inclusive, of the National Security (Subversive Associations) Regulations were held by Rich J. and myself to be beyond the powers conferred by s. 51 (vi.) of the Constitution and the National Security Act respectively. Starke J. held that the regulations as a whole were inseverable and wholly invalid because they were beyond the powers conferred by the National Security Act. His Honour said "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 of the regulations, such as ​the provision relating to bank credits, forfeitures and unlawful doctrines have little, if any, real connection with the defence of the Commonwealth or the efficient prosecution of the war. Accordingly, in my judgment, the regulations are beyond the power conferred upon the Governor-General in Council by the National Security Act 1939-1940, and, even if enacted by the Parliament itself, they would, I venture to think, transcend the powers conferred upon the Parliament by the Constitution". (The italics are mine.) The regulations there in question provided that any body corporate or unincorporate, the existence of which the Governor-General, by order published in the Gazette, declared to be in his opinion prejudicial to the defence of the Commonwealth or the efficient prosecution of the war was thereby declared to be unlawful. The regulations declared such a body to be dissolved and authorized the seizure of its property and its forfeiture to the King for the use of the Commonwealth. The effect of the forfeiture was to destroy even the rights of creditors against the forfeited property. The power of the Governor-General to make the declaration did not depend upon the body carrying on activities which were in fact prejudicial to the defence of the Commonwealth or the efficient prosecution of the war. It depended upon his mere opinion that the existence of the body had this effect. My own opinion was, and still is, that during the emergency created by a world war the defence power is wide enough to authorize a law empowering Parliament or the Executive to place such a body like an individual in a state of preventive detention, but that the power is not wide enough to authorize a law empowering Parliament or the Executive on its mere ipse dixit to liquidate an individual or body or forfeit his or its assets to the Crown. I repeat the views expressed that "For the purposes of defence the Commonwealth can in times of war pass legislation affecting the rights of the States and of their citizens and corporations under State laws to a greater extent than it can in times of peace (South Australia v. The Commonwealth). But the extent to which it can entrench upon these rights is limited by the reasonable necessities of defence during the period of the war. If it is necessary for the Commonwealth to acquire such property, it can do so subject to s. 51(xxxi.) of the Constitution. But 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 in that property under State laws completely destroyed.".
The fact that the Communist Party Dissolution Act preserves the rights of creditors would not, in my opinion, distinguish this Act from the Subversive Associations Regulations. Further, the Act was not passed during hostilities but in peace time and my remarks apply a fortiori in times of peace. There is a wide gulf between the reasonable necessities of defence in peace time, even where there is an imminent threat of hostilities, but hostilities have not begun, and during war time. An imminent threat of hostilities would no doubt authorize many precautionary measures, but could not authorize measures which would be beyond the scope of the defence power after hostilities had broken out. Before ss. 4, 5, 9 and 10 of the Communist Party Dissolution Act could be held to be valid, the Jehovah's Witnesses Case would need to be in effect overruled. They are not, in my opinion, valid exercises of the defence power or the incidental power in relation thereto.
The next question is whether the three main branches of the Act are authorized by s. 61 of the Constitution and the incidental power s. 51(xxxix.) of the Constitution. Section 61 provides that the executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen's representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth. The execution of the Constitution in the section "means the doing of something immediately prescribed or authorized by the Constitution without the intervention of Federal legislation" (The Commonwealth v. Colonial Combing, Spinning and Weaving Co. Ltd.). The maintenance of the Constitution therefore means the protection and safeguarding of something immediately prescribed or authorized by the Constitution without the intervention of Federal legislation. The execution and maintenance of the laws of the Commonwealth must mean the doing and the protection and safeguarding of something authorized by some law of the Commonwealth made under the Constitution. The executive power of the Commonwealth at the date of the Constitution presumably included such of the then existing prerogative powers of the King in England as were applicable to a body politic with limited powers. But it is clear that at the date of the Constitution the King had no power by the exercise of his prerogative to dissolve bodies corporate or unincorporate or forfeit ​their assets to the Crown or to deprive his subjects of their contractual or proprietary rights. Such action on his part would have been contrary to Magna Carta and the subsequent Acts re-affirming Magna Carta referred to in Halsbury's Laws of England, 2nd ed., vol. 6, p. 450. Such powers to be valid would have to be conferred upon the Executive by a valid law of the Commonwealth Parliament. In Burns v. Ransley Latham C.J. said that s. 51 (xxxix.) of the Constitution authorizes the Commonwealth Parliament "to make laws with respect to matters incidental to the execution of any power vested by the Constitution … in the Government of the Commonwealth … or in any department or officer of the Commonwealth. Under this provision the Commonwealth Parliament may make laws to protect and maintain the existing Government and the existing departments and officers of the Government in the execution of their powers (see R. v. Kidman)." Most, if not all, of the conduct referred to in the recitals could, I should think, be classed as conduct reasonably capable of obstructing the government in its powers and duties of executing and maintaining the Constitution and the laws of the Commonwealth, so that it would be an exercise of the incidental power to pass laws preventing or prohibiting or regulating such conduct. But the same difficulty again arises as that discussed in dealing with the defence power and the incidental power in relation thereto that ss. 4, 5, 9 and 10 of the Communist Party Dissolution Act do not define the conduct alleged to be prejudicial to the execution or maintenance of the Constitution or the laws of the Commonwealth or the means of combating it. In this respect they differ from the legislation under discussion in Burns v. Ransley and R. v. Sharkey because that legislation defined conduct the prevention of which could be seen to be reasonably incidental to combating obstructions to the execution of powers vested by the Constitution in the Parliament and the Government of the Commonwealth so that the legislation was authorized by the incidental power. All that the sections do is to provide for the winding up of certain bodies, and the forfeiture of their assets to the Commonwealth, and for the deprivation from certain persons of certain contractual rights because Parliament or the Governor-General is satisfied the further existence of those bodies or the activities or likely activities of those persons would be prejudicial to the execution or maintenance of the Constitution or of the laws of the Commonwealth. But it is the function of the Court and not of Parliament or the Executive to decide whether ​the conduct complained of is of such a nature that it could reasonably be capable of interfering prejudicially with the powers and duties of the Executive under s. 61 and therefore be conduct with respect to which Parliament could legislate under s. 51(xxxix.). Accordingly, these sections are not valid exercises of that power in relation to s. 61 of the Constitution.
From what I have said it naturally follows that, in my opinion, the provisions of the Communist Party Dissolution Act are invalid except possibly so far as a declaration could be made under s. 9 which would be effective with respect to s. 10(1) (a) and (b) of the Act and also s. 14, which provides that an agreement shall not be made by the Commonwealth or by an authority of the Commonwealth with a person in respect of whom a declaration is in force under the Act under which a fee or other remuneration is payable in respect of the services of that person. Section 9 could only apply even to this limited extent to a person who, in accordance with s. 9 (1) (b), is or was at any time after the specified date a communist, because s. 9 (1) (a) could have no meaning, since the Act fails to dissolve the Australian Communist Party. The Act purports, as I have said, to rely on the constitutional powers contained in s. 51(vi.) and (xxxix.) and s. 61 of the Constitution, but this would not prevent the Act being valid to the extent to which it could be upheld by any other constitutional power (Moore v. Attorney General of the Irish Free State). The Commonwealth has full power under the Constitution to determine whom it shall employ and with whom it shall enter into contracts, so that it would seem that the Act may be valid to this extent. But no civil servant employed by the Commonwealth or any authority of the Commonwealth was represented before us and the question of the validity of these provisions should, I think, be reserved.
I would therefore answer questions 1 (a) and (b) in the negative, and question 2 that the whole of the provisions of the Communist Party Dissolution Act are invalid except the sections subject to this reservation.
* ↑ (1925) 37 C.L.R., at p. 69.
* ↑ (1942) A.C., at pp. 232, 233.
* ↑ (1947) 177 L.T. 455, at p. 459.
* ↑ (1947) 75 C.L.R., at p. 471.
* ↑ (1916) 21 C.L.R., at p. 455.
* ↑ (1943) 67 C.L.R., at pp. 48, 49.
* ↑ (1914) A.C., at pp. 254, 255; C.L.R., at p. 653.
* ↑ (1942) C.L.R., at p. 432.
* ↑ (1947) 74 C.L.R. 400.
* ↑ (1947) 75 C.L.R. 445.
* ↑ (1949) 79 C.L.R., at p. 8l.
* ↑ (1943) 67 C.L.R., at pp. 113–115.
* ↑ (1943) 67 C.L.R., at pp. 427, 428.
* ↑ (1948) 77 C.L.R., at p. 350.
* ↑ (1915) 20 C.L.R. 299.
* ↑ (1942) A.L.R. 359.
* ↑ (1915) 20 C.L.R., at p. 307.
* ↑ (1947) 75 C.L.R. 94.
* ↑ (1916) 22 C.L.R. 268.
* ↑ (1916) 22 C.L.R., at p. 280.
* ↑ (1942) 68 C.L.R., at pp. 511, 515, 516, 521.
* ↑ (1915) 20 C.L.R. 299.
* ↑ (1942) A.L.R. 359.
* ↑ (1916) 22 C.L.R. 268.
* ↑ (1943) 67 C.L.R. 116.
* ↑ (1943) 67 C.L.R., at p. 154.
* ↑ (1942) 65 C.L.R., at p. 468.
* ↑ (1943) 67 C.L.R., at p. 163.
* ↑ (1943) 67 C.L.R. 116.
* ↑ (1922) 31 C.L.R., at p. 432.
* ↑ (1949) 79 C.L.R., at pp. 109, 110.
* ↑ (1915) 20 C.L.R., at p. 440.
* ↑ (1949) 79 C.L.R. 101.
* ↑ (1949) 79 C.L.R. 121.
* ↑ (1935) A.C. 484, at p. 498.