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

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​Dixon J. In these proceedings the validity of the Communist Party Dissolution Act 1950 is in question. The primary ground upon which its validity is attacked is simply that its chief provisions do not relate to matters falling within any legislative power expressly or impliedly given by the Constitution to the Commonwealth Parliament but relate to matters contained within the residue of legislative power belonging to the States.
​The leading provision in the Act carries out the intention indicated by the short title. By direct enactment it purports to dissolve the Australian Communist Party eo nomine. The provision is s. 4, which says that the Australian Communist Party is declared to be an unlawful association and by force of the Act to be dissolved. The section goes on to require the appointment by the Governor-General in Council of a receiver of the property of the body and upon the gazettal of the appointment to vest the property in the receiver, subject in the case of land to registration of title.
It is of course true, as a general statement, that the law governing the formation, existence and dissolution of voluntary associations of people falls within the province of the States. The legislative power of the Commonwealth does not extend to the subject as such, and if any part of it may be dealt with constitutionally by Federal statute it is as incidental to some matter falling within the specific powers conferred upon the Parliament of the Commonwealth. To sustain the validity of s. 4, it is therefore necessary to find a subject of Federal legislative power to which the enactment of such a provision is fairly incidental. The powers upon which for this purpose reliance is placed in support of s. 4 are two. Primarily it is sought to refer s. 4 to the power conferred by s. 51 (vi.) of the Constitution to make laws for the naval and military defence of the Commonwealth and of the several States, and the control of the forces to execute and maintain the laws of the Commonwealth. But reliance is also placed upon the power which the Federal legislature undoubtedly possesses to make laws for the protection of the Commonwealth against subversive designs, whether that power be attributable to the interplay of s. 51 (xxxix.) with s. 61 or forms part of a paramount authority to preserve both its own existence and the supremacy of its laws necessarily implied in the erection of a national government.
The purpose shown by s. 4 of the Communist Party Dissolution Act of dissolving association of communists as unlawful is carried a step further by s. 5 of the Act. Section 5 is directed against bodies of persons possessing communist affiliations or connections of certain forms, which are defined, but it does not apply to industrial organizations registered under the law of the Commonwealth or of a State. If a body possesses any one of the required forms of communist affiliation or connection, then by sub-s. (1) the section is made applicable to the body. The body is not, however, made unlawful by reason only of its falling within the section. Whether it is to be declared unlawful is a matter confided to the decision of the Governor-General in Council. It is to be done in ​pursuance of a power conferred by sub-s. (2), which is expressed as follows:—"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." By the next sub-section (sub-s.(3)) an official committee is set up and a direction is given to the Executive Council not to advise the Governor-General to make a declaration unless the material on which the advice is founded has first been considered by the committee. It does not restrain the Governor-General in Council from making a declaration unless such a declaration is recommended by the committee. All that is made necessary is that the materials shall first be "considered" by the committee. By sub-s. (4) the body is given an appeal to a court from a declaration by the Governor-General, but the appeal is confined to the question whether the section applies to the body, that is to say to the question whether the body possesses any of the defined forms of connection or affiliation with the Australian Communist Party or communism. There is no review of the Governor-General's opinion 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. The section contains two further sub-sections; they deal with the hearing of the appeal and give directions as to the right or duty of the appellant to begin and as to the testimony and presumptions.
In stating the kinds of communist connection or affiliation which will bring a body within the application of s. 5, sub-s. (1) embraces two periods; a period of some two years and five months before the operation of the Act, beginning on 10th May 1948 and ending on the day when the Act was assented to and took effect, viz. 20th October 1950, and secondly the period of its operation prospectively. The date 10th May 1948 is chosen because the national congress of the Australian Communist Party was then held and the constitution adopted. It is enough if the conditions the sub-section specifies are satisfied after the Act comes into operation or if they were satisfied at some time in the antecedent period of two years and five months. The conditions which sub-s. (1) specifies consist of four alternative sets providing four tests, fulfilment of any one of which will suffice. The first set of the specified conditions upon which the application of s. 5 depends is that the body either ​is or purports to be affiliated with the Australian Communist Party or at any time during the antecedent period was or purported to be so affiliated. There is no definition of the rather vague word "affiliated", but in Bridges v. Wixon the Supreme Court of the United States said of the word when used in a not very different context that it imported less than membership and more than sympathy and that acts tending to show affiliation must be of a quality indicating adherence to or furtherance of the purposes of the proscribed body as distinguished from mere co-operation with it in lawful activities. The second alternative set of the specified conditions takes membership of the Australian Communist Party or of its central or governing committee by a majority of members of the body to which s. 5 is to apply or by a majority of the committee of management of the body or other governing body and makes any of such descriptions of common membership a test of the application of s. 5. Again it is enough if the required situation existed at any time after the Act begins to operate or at any time within the antecedent period. The third in the list of conditions upon which the application of s. 5 depends relates to the support of communist doctrine or the spreading of communism by the body. It will come within s. 5 if the required support of doctrine is given or the spreading of communism is done after the commencement of the Act or at any time within the antecedent period. The required support may take the form of the advocacy or support by the body either of the objectives the policies the teachings or the practices of communism. The communism must be as expounded by Marx and Lenin. Theoretically there may be a difficulty in saying how the provision applies if the body subscribes to some but not to all of the objectives, policies, teachings or practices, but probably it has no practical importance. The fourth alternative set of conditions specified depends upon the communistic character of the persons who govern the policy of the body to which s. 5 is to apply and the use they make of the body. It is enough that the policy of the body is either directed, controlled, shaped or influenced wholly or substantially by them. But their communistic character must consist in membership of the Australian Communist Party or in being persons who are communists in the sense that they support or advocate the objectives, policies, teachings, principles or practices of communism as expounded by Marx and Lenin (s. 3 (1), s.v. communist). Again it is only necessary that the character of a member of the party or communist as defined should exist at some time after the commencement of the Act or at some ​time within the same antecedent period. But there is an additional requirement, namely that they must make use of the 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. This appears to mean that as at the time of the application of the section to the body the persons must make use of the body for the purpose stated.
It will be seen from the foregoing account of s. 5 that it provides tests of communistic connection or affiliation which must be satisfied in fact before the body becomes liable to be declared unlawful and it prescribes the manner in which the body may apply to the courts if it denies that it possesses a character fulfilling the tests. Section 23 (3) requires that such an application should be dealt with by a single judge whose decision should be final and conclusive, but that is not presently important. In sharp contrast with this objective nature of the tests for the application of s. 5 to the body the actual decision of the question whether the body ought to be considered unlawful and dissolved accordingly is left completely to the final determination of the Executive. Being satisfied that s. 5 applies to the body, a matter which the body can submit to a single judge for review, the Governor-General in Council by sub-s. (2) is then to be satisfied of what may be called a compound proposition and thereupon under the word "may" is to exercise a discretion as to declaring the body unlawful. The compound proposition is expressed indefinitely and covers a large field with no certain boundaries. It contains a number of alternatives. The proposition is that the continued existence, that is the continuance of the association, of the 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.
Two things appear to me to be clear about this. The first is that it leaves to the opinion of the Governor-General in Council every element involved in the application of the proposition. Thus it would be for the Governor-General in Council to judge of the reach and application of the ideas expressed by the phrases "security and defence of the Commonwealth", "execution of the Constitution", "maintenance of the Constitution", "execution of the laws of the Commonwealth", "maintenance of the laws of the Commonwealth" and "prejudicial to". In the second place the expression by the Governor-General in Council of the result in a properly framed declaration is conclusive. In the case of the Governor-General in Council it is not possible to go behind such ​an executive act done in due form of law and impugn its validity upon the ground that the decision upon which it is founded has been reached improperly, whether because extraneous considerations were taken into account or because there was some misconception of the meaning or application, as a court would view it, of the statutory description of the matters of which the Governor-General in Council should be satisfied or because of some other supposed miscarriage. The prerogative writs do not lie to the Governor-General. The good faith of any of his acts as representative of the Crown cannot be questioned in a court of law (Duncan v. Theodore: cf.). An order, proclamation or declaration of the Governor-General in Council is the formal legal act which gives effect to the advice tendered to the Crown by the Ministers of the Crown. The counsels of the Crown are secret and an inquiry into the grounds upon which the advice tendered proceeds may not be made for the purpose of invalidating the act formally done in the name of the Crown by the Governor-General in Council. It matters not whether the attempt to invalidate an order, proclamation or other executive act is made collaterally or directly. One purpose of vesting the discretionary power in the Governor-General is to ensure that its exercise is not open to attack on such grounds and the inference that such a purpose animates sub-s. (2) is confirmed by sub-ss. (4), (5) and (6) giving as they do a special and guarded means of obtaining relief from the conclusion of the Governor-General in Council that the communistic connections of the body would bring it within the application of s. 5 and from that conclusion only.
As part of an argument that sub-s. (2) was in itself based upon the legislative power with reference to defence either alone or together with that enabling the suppression of subversive designs and combinations, two contentions were advanced as to the meaning and effect of sub-s. (2). The first was that it did not intend to make the opinion of the executive decisive as to all the elements making up the compound proposition sub-s. (2) contains, but that some of them must have an independent existence in fact. Unless, therefore, the facts existed independently of the opinion the declaration would be ineffectual.
The contention was put forward in a form which presented more than one choice as to the amount of objective fact the sub-section should be construed to require. But the point of the contention was, so to speak, to transfer from the realm of opinion every matter of fact and law affecting the question whether the operation of sub-s. (2) might extend beyond proper subjects of a ​law with respect to defence or a law directed against subversive actions or designs.
The second argument was that, although no prerogative writ could go to the Governor-General in Council, yet in a suit for an injunction or in collateral proceedings the validity of a declaration under s. 5 (2) could be impugned by invoking the same principles as govern discretionary powers confided to subordinate administrative officers or bodies. Those principles have been explained and applied in this Court in a succession of cases beginning perhaps with the judgment of O'Connor J. in Randall v. Northcote Corporation the latest being Water Conservation and Irrigation Commission (N.S.W.) v. Browning, except for Avon Downs Pty. Ltd. v. Federal Commissioner of Taxation, where sitting as a primary judge I dealt with the matter.
These two contentions were pressed, but all I shall say about them is that the first depends upon a construction or constructions of the provision of which it is clearly incapable and the second upon applying to the Governor-General in Council rules of law which have never been applied to him and are inapplicable as well as being inconsistent with the plain meaning of the sub-section.
The consequences of the making of a declaration under s. 5 are prescribed by other provisions. By s. 6 the body is dissolved at the end of the time for appealing or when an unsuccessful appeal is disposed of. Section 8 requires that the declaration shall be accompanied by the appointment of a receiver of the property of the body. When it is gazetted the property is to vest in the receiver, subject, in the case of land, to registration of title. Section 7 imposes certain negative obligations upon officers, members and others as a result of a body becoming an unlawful association and some further negative duties as a result of the dissolution of the body. The section applies to the Australian Communist Party, which s. 4 dissolves as an unlawful association as well as to bodies which may similarly be dealt with by the Governor-General in Council under s. 5. The effect of s. 7 is to make it an offence once a body has become an unlawful association for anyone to act as an officer or member, to contribute or solicit subscriptions for its benefit, or take part in any of its activities, or, in its interest direct or indirect, to carry on any activity open to it; and to make it an offence once the body has been dissolved for any one ​to seek to maintain it in existence or to continue its activities or to treat it as if it were not dissolved.
In aid of the attack upon the validity of the Act a very wide operation was ascribed to this provision and it was sought to give it a meaning which would make it an offence for anybody to do almost anything which an unlawful or dissolved association had ever made one of its activities. But it seems clear enough that to be an offence the thing must be done or carried on as an activity of the unlawful or dissolved body or in its interest. A matter of more importance is the fate of the property vested in the receiver. By s. 15 (1) it is made his duty, after realizing the property and discharging the liabilities of the unlawful association, to pay or transfer the surplus to the Commonwealth. There is thus a forfeiture which is neither part of a punishment for a breach of the law nor an acquisition for the purposes of the Commonwealth upon just terms but something in the nature of a final or permanent deprivation of property as a preventive measure taken by direct legislative or executive action. A number of provisions are made with reference to the powers, duties and responsibilities of a receiver under the Act and for the purpose of preventing the defeat of his rights and interests, but the provisions are consequential and in the view I take need not be discussed (see ss. 15 (2), 16, 17, 18, 19, 20, 21, 22). The remaining provisions of importance are concerned not with associations of persons but with the disqualification for certain offices and positions of individuals who are or have been members of the Australian Communist Party or communists. Section 9, which in form is constructed after the general pattern of s. 5, vests in the Governor-General in Council the power of bringing about the disqualification. Sub-section (1) brings within the application of the section first any person who between 10th May 1948 "and before the date upon which the Australian Communist Party is dissolved by this Act", and second any person who is or was at any time after 10th May 1948, a communist, an expression defined to mean a person who supports or advocates the objectives, policies or teachings, principles or practices of communism as expounded by Marx or Lenin (s. 3 (1)). Then sub-s. (2), which closely resembles s. 5 (2), makes the following provision:—"(2) 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 Common​wealth, the Governor-General may, by instrument published in the Gazette, make a declaration accordingly."
Sub-sections (4), (5) and (6) of s. 9 follow the plan of sub-ss. (4), (5) and (6) of s. 5. The appeal with which they deal is limited to the application of s. 9 to the person affected by the declaration made under sub-s. (2) and does not allow of his appealing against the opinion of the Governor-General in Council concerning the prejudicial character of his activities. It will be seen that sub-s. (2) of s. 9 differs from sub-s. (2) of s. 5 in the kind of declaration to be made. In the former case the declaration is that the body is an unlawful association; in the latter the Governor-General, if he decides to exercise his power, is to "make a declaration accordingly", which means in accordance with the conclusion he has reached in conformity with sub-s. (2). There is a question whether he must declare that he is satisfied in the terms of the provision with all its alternatives or whether he must condescend upon one or other of the alternatives. I should think that he could do either and that a declaration in either of the two forms would comply with the section. But I pass this question by as one which, in the view I take, is unimportant.
What may be of more importance is that, as with s. 5 (2), the authority which sub-s. (2) of s. 9 is designed to confer on the Governor-General in Council would enable him to express a conclusive decision covering every element involved in the application to a given case of any or every limb of the alternatives contained in the formula concerning the actual or potential prejudicial activities of the person declared. The consequences which ensue from the making of a declaration under s. 9 in reference to a person are given by ss. 10, 11, 12, 13 and 14. Briefly the person declared becomes incapable of holding an office or employment under the Commonwealth or an authority of the Commonwealth, whether incorporated or not, and, if the Governor-General declare an industrial organization to be one to which s. 10 applies, then he cannot hold any office in that organization or in any branch of it. The section may be so applied to an organization if a substantial number of its members are employed in a vital industry. The vital industries are coal mining, iron and steel, engineering, building, transport, power and any other industry which, in the opinion of the Governor-General in Council is vital to the security and defence of Australia. As the declaration of the prejudicial nature of a man's actual or probable activities may be made before or after the declaration of a vital industry and as at the time when the second is made he may be in process of appealing ​from the first declaration on the ground that s. 9 (1) does not apply to him, and, further, as he may be an officer of the industrial organization when the later of the two declarations is made, special provisions are made for these various contingencies. The effect is to suspend him pending the final outcome and then, if the declaration against him stands, to vacate his office. For the purpose of his rights to any superannuation or retirement benefit, it is enacted that he shall be deemed to have resigned (s. 11 (5)). An injunction may be granted against him restraining him from performing any act, duty or function or exercising any right as the holder of an office in such an industrial organization. While a declaration against him is in force, the man may not contract or agree with the Commonwealth in respect of any services on his part for reward (s. 14). It is to be noticed that s. 9 is not limited to persons who occupy or are likely to be appointed to or engaged for any of the offices or employments mentioned in s. 10 (1) or who contract for services with the Commonwealth or are likely to do so. It enables the Executive to make a declaration against anybody falling within the description of sub-s. (1) of s. 9, although there may be no prospect in his case of a situation to which the consequences are relevant ever arising.
The Act is to remain in operation until the Governor-General makes a proclamation that its continuance is no longer necessary. He must be satisfied that it has ceased to be necessary for the security and defence of Australia and for the execution and maintenance of the Constitution and of the laws of the Commonwealth (s. 27). The duration of the Act is therefore indefinite and the power of the Governor-General under s. 5 (2) and his power under s. 9 (2) will remain exercisable for possibly a long time after the occurrence of the facts which in the former case bring the body of persons within the application of s. 5 and in the latter case the individual within the application of s. 9.
From the foregoing discussion of the Act and its meaning it will be seen that in the cardinal provisions the Act proceeds against the bodies and persons to be affected, not by forbidding a particular course of conduct or creating particular offences depending on facts so that the connection or want of connection with a subject matter of Federal legislative power may appear from the nature of the provision, but in the case of the Australian Communist Party itself by direct enactment and in the case of affiliated organizations and persons by empowering the Executive to act directly in a parallel manner. In the one case there is the judgment of the legislature itself that the body is to be dissolved as unlawful and ​in the other cases there is the judgment of the Executive that the affiliated bodies are to be similarly dissolved as unlawful or that a declaration shall be made against the persons who are to be thereby disqualified for certain classes of post. The consequences ensue automatically, the dissolution of the bodies, the forfeiture of their property and the unlawfulness of conduct tending to keep them or their activities alive, the loss of office by the individuals, their disqualification and their incapacity to contract with the Commonwealth for services. The Commonwealth Parliament has power to legislate with respect to the public service and under s. 51 (xxxv.) it may impose conditions upon the registration of industrial organizations under the Commonwealth Conciliation and Arbitration Act. But I shall put aside for subsequent examination the possibility of a justification being found in these powers for s. 10 (1) and in relation to it of s. 9. Subject to this reservation the validity of the chief provisions of the statute can find no support unless in the power to make laws with respect to the defence of the Commonwealth or in s. 51 (xxxix.) or in an implied power to legislate for the protection of the Commonwealth against subversive action and preparation. For otherwise the subject with which the law deals, the dissolution as unlawful of voluntary and corporate associations of people, whether because of their purposes and tendencies or for other reasons, and the disqualification of persons for descriptions of employment, does not in itself form part of any of the enumerated powers of the Parliament. Further, it cannot in itself, that is to say, because of its nature, lie within the defence power. It can fall within it, if at all, only as a means to accomplish or further some end which because of its nature is within the proper scope of defence. In the same way it can fall within the power to legislate against subversive actions and designs only as a means to the end for which that power exists. That is to say, constitutional support for the law must be sought not within what may be called the substance of any power but in the authority of the Parliament to enact what is ancillary or calculated to bring about an end within its legislative competence.
An attempt was made thus to sustain the law upon the ground that s. 5 (2) and s. 9 (2) in terms require the Governor-General to be satisfied of matters which, it was said, must fall within one or other of the two legislative powers mentioned and that of themselves or with the aid of the preamble and context they showed that s. 4 was based upon a legislative satisfaction of like matters in relation to the Australian Communist Party.
​The matters of which the Governor-General is to be satisfied are described most indefinitely-activities prejudicial to security and defence, activities prejudicial to the execution or maintenance of the Constitution or of the laws of the Commonwealth. The source in s. 61 of the Constitution of much of the language of the second expression and the frequent use in relation to the prosecution of two actual and existing wars in statutory instruments of expressions like the first do not make it less true that as they are used here they express no specific connection with the subject matter of the defence power and no specific connection with any definite course of subversive conduct or design. The sub-sections commit to the Governor-General in Council complete authority over the application of these vague expressions; and how they are applied is left to depend upon the conceptions of the Executive Government. Under those conceptions conduct to which specific legislation could not be validly directed in purported exercise of the power to make laws with respect to defence might be treated as "prejudicial to the security and defence of the Commonwealth". It must be borne in mind that what may be regulated from time to time in pursuance of the defence power must often depend on the closeness or distance of the connection seen between the matter to be regulated and the purposes of the power. The decided cases provide many examples of this in the midst of war and in the course of restoring a country organized for war to conditions of peace. The decision of this Court with respect to the continuance of petrol rationing and the regulation of women's employment and of landlord and tenant (R. v. Foster) supplies the most recent illustration and contains a discussion of the nature and application of the power. There is nothing unreal in the possibility that the degree of connection constitutionally necessary might be misconceived and misapplied administratively. For in the complexities governing the life of a community some connection may be traced between the defence of the country and the greater number of factors which go to make up or influence any part of its economy or of its thought. But even at a time when war placed the greatest strain upon the national life a regulation for determining the number of students who might be enrolled in a faculty in a university and giving no directions what the rest should do was held to be too remote from the purposes of the power (R. v. University of Sydney; Ex parte Drummond).
It is thus apparent that in committing to the Executive Government an authority to say whether the continued existence of a ​body or the activities of a person are prejudicial to the security or defence of the Commonwealth, the sub-sections provide a most uncertain criterion depending on matters of degree. However much care and restraint there might be in the use of the power, the likelihood would remain very great of matters being considered prejudicial to security and defence which could not possibly be made the subject of legislation. Unlike the power conferred by s. 5 of the National Security Act 1939-1943, the present power is administrative and not legislative, it is not directed to the conduct of an existing war, and its exercise is not examinable and is not susceptible of testing by reference to the constitutional power above which it cannot validly rise.
So much of the sub-ss. (2) of ss. 5 and 9 as refers to prejudice to the execution or maintenance of the Constitution or of the laws of the Commonwealth exhibits no apparent connection with the defence power. Its apparent reference is to s. 61 of the Constitution as affording a subject upon which s. 51(xxxix.) might operate. But it is hardly necessary to say that when the country is, for example, actually encountering the perils of war measures to safeguard the forms of government from domestic attack and to secure the maintenance and execution of at least some descriptions of law might be sustained under the defence power, even if it were thought that their nature took them outside the scope of s. 51(xxxix.) in its application to s. 61.
There is even less ground in my opinion for the claim that the second part of the formula used in sub-ss. (2) of ss. 5 and 9 may be sustained as enacted in exercise of a power given by a combination of s. 61 and s. 51(xxxix.) than can be seen for the claim to base the first part upon the ower to make laws with respect to defence. In the first place s. 51(xxxix.) relates to matters arising in the course of executing the power to which the paragrph is applied, in this case the executive power, to incidents in its exercise. This is shown by the language of the paragraph and is confirmed by the decision of the Privy Council in Attorney-General for the Commonwealth of Australia v. Colonial Sugar Refining Co. Ltd.. See further the discussion of incidental powers in Le Mesurier v. Connor. Some specific matter, or reasonably definite description of event, act or thing must be dealt with by the law as an incident attending or possibly attending the execution of the power, in this case the executive power, in aid of which s. 51 (xxxix.) is invoked. The sub-ss. (2) give no such specific or reasonably ​definite description of any act, matter, thing or event, attending the exercise of the executive power. There is nothing but the vague or intangible conception of the existence of a body or the activities of a man being prejudicial to the executive power.
Again, if the scope given for the opinion of the Governor-General in Council as to what is prejudicial to the security or defence of the Commonwealth is incapable of legal restraint within the limits of constitutional power, what is to be said of his opinion as to what is prejudicial to the maintenance of the Constitution, to its execution, to the maintenance of the laws of the Commonwealth or to their execution? The facility with which the laws are administered as a whole or this or that provision of the voluminous laws of the Commonwealth is executed might appear to the Executive Government to be impaired by an "activity", manifested in speech or deed, or by the purposes for which an association of persons exist, although in point of objective fact it could never be held a matter which a law made under s. 51 (xxxix.) might validly cover.
I am unable to see that the adoption of these formulas in s. 5 (2) and s. 9 (2) affords any reason for sustaining the grant of power to the executive to make the declarations which s. 5 and s. 9 assume to authorize or the imposition of the consequences consisting in the dissolution of the bodies as unlawful associations, the forfeiture of their property, the restriction upon the actions of officers and others and the disqualification of individuals for certain offices and employments.
For myself I do not think that the full power of the Commonwealth Parliament to legislate against subversive or seditious courses of conduct and utterances should be placed upon s. 51 (xxxix.) in its application to the executive power dealt with by s. 61 of the Constitution or in its application to other powers. I do not doubt that particular laws suppressing sedition and subversive endeavours or preparations might be supported under powers obtained by combining the appropriate part of the text of s. 51(xxxix.) with the text of some other power. But textual combinations of this kind appear to me to have an artificial aspect in producing a power to legislate with respect to designs to obstruct the course of government or to subvert the Constitution. History and not only ancient history, shows that in countries where democratic institutions have been unconstitutionally superseded, it has been done not seldom by those holding the executive power. Forms of government may need protection from dangers likely to arise from within the institutions to be protected. In point of ​constitutional theory the power to legislate for the protection of an existing form of government ought not to be based on a conception, if otherwise adequate, adequate only to assist those holding power to resist or suppress obstruction or opposition or attempts to displace them or the form of government they defend. As appears from Burns v. Ransley and R. v. Sharkey, I take the view that the power to legislate against subversive conduct has a source in principle that is deeper or wider than a series of combinations of the words of s. 51(xxxix.) with those of other constitutional powers. I prefer the view adopted in the United States, which is stated in Black's American Constitutional Law (1910), 2nd ed., s. 153, p. 210, as follows:—"… it is within the necessary power of the federal government to protect its own existence and the unhindered play of its legitimate activities. And to this end, it may provide for the punishment of treason the suppression of insurrection or rebellion and for the putting down of all individual or concerted attempts to obstruct or interfere with the discharge of the proper business of government …"
In the United States the power is deduced not only from what is inherent in the establishment of a polity but from the character of the polity set up and more particularly from the power of Congress to make laws which shall be necessary and proper for carrying into execution the powers vested in Congress by the Constitution and in the Government or in any Department or officer thereof. Putting aside occasional reliance on a Federal police power, the considerations giving rise to the implied power exist in the Commonwealth Constitution.
My reason for referring to the view I take of the source of the legislative power to put down subversive activities and endeavours is that it perhaps embodies a somewhat different principle, and one to which those who seek to support ss. 5 and 9 on the basis of sub-ss. (2) may appeal. But I think that the appeal must be in vain. The extent of the power which I would imply cannot reach to the grant to the Executive Government of an authority, the exercise of which is unexaminable, to apply as the Executive Government thinks proper the vague formula of sub-ss. (2) relating to prejudice to the maintenance and execution of the Constitution and the laws, and by applying it to impose the consequences which under the Act would ensue. I need not repeat reasoning which I think is equally true of the insufficiency of the legislative power I have described to support legislation of such a character. It may, however, be desirable to add that no analogy exists between ​legislation of the kind under consideration and legislation which deals with an unquestioned subject of legislative power and in the course of doing so gives a discretion to the Executive or to an administrative officer the exercise of which affects rights and liabilities which must lie within the subject of the power and therefore may be made to depend on any event or matter the legislature may choose, including administrative opinion. Of this there are many examples in Tax Assessment Acts. The power to tax is exercised whether such an opinion enters into the prescribed basis of the tax or not. So when s. 52 of the Customs Act 1901-1947 prohibits the importation of various kinds of goods it deals with commerce with other countries and it does so none the less because wide discretionary powers are given to the administration to add to the imports prohibited: Radio Corporation Pty. Ltd. v. The Commonwealth. Nothing can be prohibited but what are in truth imports and imports are necessarily a subject of the power given by s. 51 (i).
For the reasons I have given I am of opinion that it is not possible to sustain the Act on the ground that sub-ss. (2) of s. 5 and s. 9 are based in terms upon matters falling within the defence power or the incidental power in relation to obstructions to the executive power or otherwise. Indeed I think it may be said that if the validity of the Act can be supported it is rather in spite of than because of s. 5 (2) and s. 9 (2).
The difficulty which exists in referring the leading provisions of the Act to the defence power and the power to make laws against subversive action evidently did not escape the notice of the legislature. For that and perhaps other reasons the Act is prefaced with an elaborate preamble.
The preamble contains nine recitals. Of these the first three do no more than set out portions of ss. 51 (vi.), 61 and 51 (xxxix.) of the Constitution. The fourth states that the Australian Communist 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. The fifth says that the same body also engages in activities designed to bring about the overthrow or dislocation of the established system of government of Australia and the attainment of economic, industrial or political ends by force, violence, intimidation or fraudulent practices. The ​sixth recital contains a statement that the body is an integral part of the world communist revolutionary movement which, put shortly, engages in espionage, sabotage, treasonable or subversive activities and activities like those imputed in the previous recital. The seventh recital relates only to what are industries vital to the security and defence of Australia and the eighth recites, in effect, that activities or operations of or encouraged by the Australian Communist Party and by its officers, members and others, being communists, are designed to cause by means of strikes and stoppages of work, and have so caused, dislocation, disruption or retardation of production or work in those vital industries. 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 Party and bodies affiliated with it should be dissolved and that officers and members of the Party and 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.
Now it appears to me that the effect of this preamble is to put forward the Act as an exercise of one or other or both of the legislative powers invoked by the first three recitals and to give the reason why such powers should apply by stating the nature of the doctrines, designs and activities of the Australian Communist Party, affiliated bodies and officers and members thereof and other communists.
By making the aims and actions of organized communism the matter bringing into play the defence power and the incidental power, s. 4 as the leading provision in the Act is placed upon an intelligible, even if an insufficient, constitutional foundation. The same foundation is made available for s. 5 and s. 9 in virtue, not of sub-ss. (2), but of sub-ss. (1) of those sections. Doubtless the reference in sub-ss. (2) to security and defence and to the execution and maintenance of the Constitution and the laws assists in showing what the recitals in effect say, namely, that communism is dealt with as a source of danger to the safety of the country and its institutions. But because all is made to rest upon the opinion and discretion of the Governor-General in Council by s. 5(2) and s. 9(2), those sub-sections leave the two sections and the provisions by which the consequences are attached to the declarations with no better support as laws with respect to defence or to matters incidental to the execution of the powers of the Executive than has s. 4.
​Seeing in the recitals the foundation upon which the Act had been placed as a law with respect to defence or with respect to matters incidental to the executive power, the plaintiffs in the eight actions in which these proceedings arise, alleged that the recitals were not in accordance with fact and proposed to go into evidence for the purpose of disproving them. It appeared to me that the validity or invalidity of the Act might not depend upon the truth of the recitals, and the actions being before me upon interlocutory applications, I stated a case for the Full Court raising the question. That is the proceeding now before us. It is obvious that the Full Court could not pass upon the validity of the Act if the Court was of opinion that the decision of the question depended upon a judicial determination or ascertainment of the facts stated in the preamble or that the plaintiffs were entitled to adduce evidence in support of their denial of the facts so stated in order to establish that the Act is outside power. So that question is asked first. If, however, the Court is not of that opinion then the question of the validity of the Act is submitted for decision. But the order of the questions cannot affect the logical course which an inquiry into the validity of the Act must take. For, in order to conclude that the question of the validity or invalidity of the Act does not depend on the correctness in fact of the preamble or that evidence to controvert the recitals cannot be offered, the inquiry must be pursued to the point of excluding on the one hand the possibility of the Act being valid although the facts are not in truth as recited and on the other of its being invalid although they or some of them may be as recited. That was shown by the course of the argument. For the defendants, supporting the Act, maintained, not that the preamble was conclusive of the facts it recited and that on that ground the Act was valid but that, treating the preamble as conclusive only as to the existence of the legislative opinions it disclosed and of the reasons it indicated for passing the Act, the validity of the Act was to be sustained. On the part of the plaintiffs and interveners who impugned the validity of the Act, the invalidity of the Act was said to appear irrespective of the truth of the facts recited. But the plaintiffs were prepared to fall back if need be upon an issue as to the correctness of the facts recited. On the other hand, the defendants made no proposal to establish facts by evidence in order to provide a sufficient connection between the defence power and the Act, whether facts stated in the recitals or other facts.
It will be seen from an examination of the recitals that, in spite of the initial reference to the possession of a power to make laws ​with respect to defence there is no direct allusion to any apprehension of external danger. The validity of the Act must be tested as at the date of the royal assent, 20th October 1950; and, so far as public events may be noticed and relied upon, what has happened since cannot be used in support of the validity of the Act.
The sixth recital associates espionage, sabotage and subversive activities in the King's dominions and elsewhere with a world communist movement of which the Australian Communist Party is stated to be an integral part. The eighth recital refers to obstructions to vital industries which the seventh recital says are vital to the security and defence of Australia. There is nothing among the matters recited closer to defence in relation to dangers from outside the Commonwealth than the references in the sixth, seventh and eighth recitals. This may be of some significance if, as I think must be the case, the power to legislate against subversive conduct and designs, whether it be based on s. 51(xxxix.) or on wider considerations, will not suffice to sustain the validity of the Act on the footing that the operation of ss. 4, 5 and 9 is against communist bodies and communists and that because of the precepts, purposes and actions of such bodies and such persons they become ex sua natura subject to the power. If the Act can be supported by a train of reasoning of such a kind it must be under the defence power or not at all. The other power is concerned primarily with the protection of Federal authority against action or utterance by which it may be overthrown, thwarted or undermined. It covers, needless to say, conduct antagonistic to the maintenance of Federal institutions and authority, whether its source is abroad or at home, but its central purpose is to allow the legislature to deal with manifestations of subversive conduct within Australia. Wide as may be the scope of such an ancillary or incidental power, I do not think it extends to legislation which is not addressed to suppressing violence or disorder or to some ascertained and existing condition of disturbance and yet does not take the course of forbidding descriptions of conduct or of establishing objective standards or tests of liability upon the subject, but proceeds directly against particular bodies or persons by name or classification or characterization, whether or not there be the intervention of an Executive discretion or determination, and does so not tentatively or provisionally but so as to affect adversely their status, rights and liabilities once for all. It must be borne in mind that it is an incidental or ancillary power, not a power defined according to subject matter. I have said before that in most of the paragraphs ​of s. 51 of the Constitution the subject of the power is described either by reference to a class of legal, commercial, economic or social transaction or activity (as trade and commerce, banking, marriage), or by specifying some class of public service (as postal installations, lighthouses), or undertaking or operation (as railway construction with the consent of a State), or by naming a recognized category of legislation (as taxation, bankruptcy): Stenhouse v. Coleman. In a law operating upon or affecting such a given subject matter or fulfilling such a given description, as the case may be, the legislature is at large in the course it takes, that is provided it observes the restrictions arising from specific constitutional provisions such as s. 55, Chapter III., ss. 92, 99 and 116. But, in considering whether a law is incidental to an end or operation, no such test is supplied. It would, for example, be quite erroneous to say first that communism is within the incidental power and next that therefore any law affecting communism is valid. The power is ancillary or incidental to sustaining and carrying on government. Moreover, it is government under the Constitution and that is an instrument framed in accordance with many traditional conceptions, to some of which it gives effect, as, for example, in separating the judicial power from other functions of government, others of which are simply assumed. Among these I think that it may fairly be said that the rule of law forms an assumption. In such a system I think that it would be impossible to say of a law of the character described, which depends for its supposed connection with the power upon the conclusion of the legislature concerning the doings and the designs of the bodies or person to be affected and affords no objective test of the applicability of the power, that it is a law upon a matter incidental to the execution and maintenance of the Constitution and the laws of the Commonwealth. Indeed, upon the very matters upon which the question whether the bodies or persons have brought themselves within a possible exercise of the power depends, it may be said that the Act would have the effect of making the conclusion of the legislature final and so the measure of the operation of its own power. Nor do I think that if a wider basis for the power than s. 51 (xxxix.) is accepted, the power itself would extend to a law like the present Act, using as it does, the legislature's characterization of the persons and bodies adversely affected and no factual tests of liability and containing no provision which independently of that characterization would amount intrinsically to an exercise of the power. To deal specifically with named or ​identifiable bodies or persons independently of any objective standard of responsibility or liability might perhaps be possible under the power in the case of an actual or threatened outburst of violence or the like, but that is a question depending upon different considerations.
The foregoing discussion narrows the inquiry as to possible support for the validity of the legislation to what may briefly be described as the use of the defence power against communism as such, that is treating communistic character and connections as at once the sufficient and the sole substantial ground for invoking the defence power for the purpose of a declaration by statute that the Party was unlawful and dissolved and, subject to the Executive discretion, for a similar declaration concerning affiliated bodies and a declaration of disqualification for individuals. The central purpose of the legislative power in respect of defence is the protection of the Commonwealth from external enemies and it necessarily receives its fullest application in time of war. It is a legislative power and therefore affords but the means of establishing all the legal machinery and making all the legal provisions considered necessary and appropriate for the purpose. The responsibility for the practical measures taken in order to protect the country must belong to the Executive. The prosecution of a war is of necessity an executive function and has always been so conceived. It is needless after our recent experiences of war to enlarge upon the extent to which it is necessary in modern war to transfer both power and responsibility to the Executive. The conduct of such a war carries with it the direction and control of men and their affairs in every aspect capable of affecting in any degree the prosecution of the war. A conspicuous purpose of legislation in exercise of the defence power must be to invest the Executive. for the purpose of carrying on a war, with the necessary powers, legislative and administrative. The delegation of legislative power has involved no difficulty because, as I have already said, not only is there a definite war but any exercise of the delegated power, is examinable against s. 51 (vi.). But, under the delegated power, and sometimes by direct enactment, the very widest discretions are vested in ministers, administrative boards and officers and in officers of the armed services. Common experience, therefore, shows that, in time of war at all events, a provision made by or under statute is not regarded as necessarily outside power because a minister or an agency of the Executive is authorized according to his or its opinion of the relation of some act, matter or thing to defence or some aspect of defence to give directions or determina​tions in derogation of the freedom of action and the personal rights of men and of associations of men. For example, I think that at this date it is futile to deny that when the country is heavily engaged in an armed conflict with a powerful and dangerous enemy the defence power will sustain a law conferring upon a minister power to order the detention of person whom he believes to be disaffected or of hostile associations and whom he believes that it is necessary to detain with a view to preventing their acting in any manner prejudicial to the public safety and the defence of the Commonwealth: see Lloyd v. Wallach; Ex parte Walsh; and Little v. The Commonwealth. The reason is because administrative control of the liberty of the individual in aspects considered material to the prosecution of a war is regarded as a necessary or proper incident of conducting the war. One man may be compelled to fight, another to perform directed work, a third may be suspected of treasonable propensities and restrained. But what the defence power will enable the Parliament to do at any given time depends upon what the exigencies of the time may be considered to call for or warrant. The meaning of the power is of course fixed but as, according to that meaning, the fulfilment of the object of the power must depend on the everchanging course of events, the practical application of the power will vary accordingly. Hitherto a marked distinction has been observed between the use of the power in war and in peace. "But this Court has never subscribed to the view that the continued existence of a formal state of war is enough in itself, after the enemy has surrendered, to bring or retain within the legislative power over defence the same wide field of civil regulation and control as fell within it while the country was engaged in a conflict with powerful enemies" (R. v. Foster). Correspondingly it is no doubt true that a mounting danger of hostilities before any actual outbreak of war will suffice to extend the actual operation of the defence power as circumstances may appear to demand. Throughout this case I have been impressed with the view that the validity of the Act must depend upon the possibility of bringing into application as at the date of the assent to the Act the conceptions as to the operation of the defence power which hitherto have been generally regarded as appropriate only to a time of serious armed conflict. Unless this were possible I have failed to see a way of reconciling it with constitutional principle.
​At the date of the royal assent Australian forces were involved in the hostilities in Korea, but the country was not of course upon a war footing, and, though the hostilities were treated as involving the country in a contribution of force, the situation bore little relation to one in which the application of the defence power expands because the Executive Government has become responsible for the conduct of a war. I think that the matter must be considered substantially upon the same basis as if a state of peace ostensibly existed. It is possible, however, to sustain the Act on the ground that under the influence of events the practical reach and operation of the defence power had grown to such a degree as to cover legislation providing no objective standard of liability relevant to the subject of the power but proceeding directly first by the pronouncement of a judgment by means of recitals and then in pursuance of the recitals acting directly against a body named, and bodies and persons described, in derogation of civil and proprietary rights?
Just as courts may use the general facts of history as ascertained or ascertainable from the accepted writings of serious historians (cf. Read v. Bishop of Lincoln, and the note to Evans v. Getting), and employ the common knowledge of educated men upon many matters and for verification refer to standard works of literature and the like (cf. Darby v. Ouseley), so we may rely upon a knowledge of the general nature and development of the accepted tenets or doctrines of communism as a political philosophy ascertained or verified, not from the polemics of the subject, but from serious studies and inquiries and historical narratives. We may take into account the course of open and notorious international events of a public nature. And, with respect to our own country, matters of common knowledge and experience are open to us (cf. Ex parte Liebmann). But we are not entitled to inform ourselves of and take into our consideration particular features of the Constitution of the Union of Socialist Soviet Republics, per Slesser L.J., A/S Rendal v. Arcos, Ltd.; and per Lord Wright s.c..
It is needless to enter into a discussion of the avowed principles of communism, whether in earlier stages of development or in their present state. In a political theory based upon the supposed ​irreconcilable antagonisms inherent in a capitalistic system, the inevitability of its decomposition, the necessity of a period of revolutionary transformation from a capitalist to a communist society, the struggle between bourgeoisie and proletariat, the dictatorship of the proletariat during a longer or shorter period of further evolution, the progressive extension of the revolutionary process over the earth and the need to assist and expedite its spread not merely that its supposed benefits may be more widely enjoyed but for the protection of existing systems of communism from counter action and the revolutionary process of development from delay and temporary defeat; in such a political theory there are beliefs calculated to produce action and the interpretation which a parliamentary government places upon events domestic and foreign will be affected by the complexion it gives to the tenets and precepts of the adherents of the philosophy. That complexion need not be the same as the adherents themselves would claim for their doctrines. A harsher or more sinister interpretation may be placed upon some of the sentiments than communists themselves may say is correct. But that is beside the point. The significance of such things must be judged by the Government in the light of all the circumstances of which it is informed.
If it is unnecessary to discuss the principles of communism, it is even less necessary to examine notorious international events. The communist seizure of Czecho-Slovakia, the Brussels Pact of Western Union, the blockade of Berlin and the airlift, the Atlantic Pact, the passing of China into communist control, the events in reference to the problem of Formosa, the entry of the North Korean forces into South Korea and the consequent course of action adopted by the United Nations, and the sustained diplomatic conflict between communist powers and the Anglo-American countries and other western powers at meetings of the Security Council and the General Assembly are all too recent. So far as the internal affairs of this country enter into the question whether events had extended the operation of the defence power, it is enough to refer to the serious dislocations of industry that have occurred—a matter the significance of which it would be within the province of the Government to judge, availing itself of its sources of information.
It ought not, I think, to be denied that the events of the time, some of which I have briefly enumerated, bring within the practical application of the defence power measures which would not have been considered competent—for example, in the state of affairs prevailing when this Court held its first sittings. But hitherto it has been supposed that only the supreme emergency of war ​itself would extend the operation of the power so far as to support a legislative provision which on a subject not by its own nature within the defence power affects the status, property and civil rights of persons nominatim or by other identification without any external test of liability upon which the connection of the provisions with power will depend.
The question remains, however, whether nevertheless, by reason of the application of s. 4 and s. 5 (2) and s. 9 (2) to the Communist Party, affiliated bodies and communists as such, a sufficient connection with the defence power can be established on the footing that recent events had at the date of the Act called the defence power into such wide play as to supply a constitutional justification for the form of the Act. Although this question was not developed in the argument before us, it must be decided. In deciding it there are three considerations to be urged in support of an affirmative answer. They complement one another. In the first place it may be said that the proper view of the defence power is that in a situation such as events had created when the Act became law the power places within the authority of the legislature the decision of all the questions concerned with the defence of the country which may determine legislative action, questions affecting the extent of the operation of the constitutional power. It may be said, further, that public events of common knowledge, without more, made it a matter for the decision of the Parliament what was the real nature of the activities and designs of the Australian Communist Party, of kindred bodies and of communists, what part they played in the dangers considered to threaten the country and what and how great those dangers were. In such a view the decision of the Parliament is to be seen in the recitals and in the provisions of the Act. The decision it would be said leaves no room for any question of power. In the second place it is a commonplace that while the extent of the operation and the application of a power, including the defence power, must be decided by the Court, the reasons why it is exercised, the opinions, the view of facts and the policy upon which its exercise proceeds and the possibility of achieving the same ends by other measures are no concern of the Court. In the third place, in all matters relating to defence, not only does the responsibility lie with the Executive Government and thus ultimately with Parliament, but the information at the command of the Government, which often cannot be made public, places it in a special position to judge of what the public interest requires.
​In all the cases concerning the validity of statutory regulations made for the war of 1914-1918 and for the war of 1939-1945 the principle was acknowledged or assumed that it was for the Executive Government to decide what was necessary or expedient for the purpose of the war and in doing so to act upon its opinion of the circumstances and conditions that existed and of the policy or course of action that should be followed. Variously formulated as the tests have been for deciding whether regulations made under the war powers were within the power to make laws with respect to defence, they have uniformly been based upon the principle that there is to be no inquiry into the actual effect the regulation would have or be calculated to have in conducing to an end likely to advance the prosecution of the war and that it was at least enough if it tended or might reasonably be thought conducive or relevant to such an end.
But, in Farey v. Burvett Griffith C.J. said: "In making the inquiry the Court cannot shut its eyes to the fact that what could not rationally be regarded as a measure of defence in time of peace may be obviously a measure of defence in time of war." Barton J. said: "It is argued that the defence power has the same meaning at all times, whether in peace or in war. I doubt that, but it may not be necessary to determine it, for the true question is whether many things that cannot aid defence in peace and when no enemy is in view, are not urgently necessary when an enemy has arisen who must be defeated if the nation, or family of nations, is to live". His Honour's view treated the power as possessing a fixed meaning with a changing application, as a fixed concept with a changing content.
It would, I think, be an error to draw a definite line between a period after the commencement of actual hostilities and the period before they commence. It is inappropriate to the altered character of war and the changes that appear to have taken place in the manner of commencing war. Imminence of war will enlarge the application of the fixed concept of defence.
I have now completed my statement of the train of reasoning in support of the Act based upon ss. 4, 5 (2) and 9 (2) as laws with respect to communism. I believe that, from the form in which I have stated the reasoning, its full force will appear. But, after giving much consideration to the question whether it will suffice to sustain the Act I have reached the conclusion that it will not. The reasons for that conclusion may be briefly given. When s. 4 names a voluntary association, declares it unlawful and by force ​of the Act dissolves it, and when ss. 8 and 15(1) attach the consequence of deprivation of property and s. 7 attaches the consequence of a restriction of the civil rights of the members, it provides for matters which, considered as specific subjects, are not of their own nature within any of the enumerated powers of the Commonwealth Parliament and prima facie lie only within the province of the States. If the operation of the law upon the right of association, the common property and the civil rights of the members were made by the statute to depend upon the actual existence or occurrence of any act, matter or thing having a specific relation to the purposes of the power with respect to defence, then, notwithstanding that the immediate subject of the provision did not of its own nature form part of the subject matter of the power, the provision would be brought within it as ancillary to the main purpose of the power. Again, prima facie no opinion of the Parliament as to the actual existence or occurrence of some matter or event which would provide a specific relation of the subject of a law with power can suffice to give the law that relation. It would, for example, be impossible for the Parliament by reciting that a society for research in radio physics planned or carried on experiments causing or likely to cause an interference with wireless transmission to bring within s. 51 (v.) (postal, telegraphic, &c. services) an enactment naming the society and dissolving it brevi manu. It would be impossible to bring under s. 51 (xviii.) (patents) a direct grant of a monopoly for a specified manufacturing process by reciting that it was an invention. The pronouncements by Parliament which the recitals in the Act contain, combined with the declaration of unlawfulness and decree of dissolution made by s. 5 and the forfeiture imposed by s. 15 (1), were said by the plaintiffs to amount together to an invasion or usurpation of judicial power. In the case of s. 15 (1) it was also said that, except by a lawful exercise of judicial power, such a forfeiture could not be imposed by reason of s. 51 (xxxi.) of the Constitution. As I am deciding the case on the ground of want of affirmative legislative power, I shall not deal with these arguments, but I mention them because they illustrate the substantial effect and nature of the provisions in question. There should be no confusion about the essential nature of the connection with the defence power which the recitals seek to supply. Essentially it consists in the past acts, the tenets and opinions and the present propensities or tendencies of persons and associations of persons.
Where legislation, subordinate or principal, purporting to exercise the defence power has stated the purpose for which it was enacted ​or adopted, this expression of purpose has received effect. In relation to a power largely directed to purpose its importance is evident. It is true that the expression of the nature and existence of the purpose has left open the question whether nevertheless the legislation failed as an exercise of the defence power, because of the nature of the provisions, the prevailing situation, the facts, the remoteness of the means adopted from the avowed object, or some other consideration. But here, so far as the preambles express the existence and the nature of the purpose animating the legislation, that may be conceded. It is, however, but a small step. What is in question is so much of the recitals as concern not the opinions and purposes of the legislature, but the opinions and purposes of the persons against whom the provisions are directed and their past actions. Again, the case is not one where a course of conduct is required or forbidden but only a knowledge of facts outside judicial notice would enable the Court to see how the pursuit of that course of conduct would promote or prejudice, as the case may be, an object within the defence power. It is enough to mention Sloan v. Pollard and Jenkins v. The Commonwealth, the facts of which provide sufficient illustrations. In such a case the result which the rule laid down produces or is calculated to produce is within the defence power and all that is lacking is an understanding of the process of causation between the conduct prescribed or prohibited and the result. That can be proved. There is no need to stop to inquire precisely how much effect a recital by the legislature of facts of such a nature should receive; for it is not this case. But, to my mind, recitals of such a character, stating how a law will operate, or for that matter recitals stating the purpose for which an enactment is made, stand on an altogether different footing from what is the essential matter here. The essential matter here is a statement to the effect that persons or bodies of persons have been guilty of acts which might have been penalized in advance under the defence power and have a propensity to commit like acts, this being recited as affording a supposed connection between the defence power and the operative provisions enacted, provisions dealing with the persons or bodies directly by name or description.
At the risk of repetition it is perhaps desirable to add that the case is not one where the legislation is dealing with a subject matter undeniably within power. If the legislature directly dissolved a marriage between named parties, it would at all events be dealing with divorce, whatever other objections might be found ​to the Act. If it directly enacted that a named alien should be deemed naturalized or that a person or persons named or described should be denied the use of the postal, telegraphic and telephonic services, it would likewise be upon the very subject of power. Whatever recitals it thought fit to make would have such effect as it was taken to intend, and whatever conditions it imposed would be valid, subject always, of course, to the relevance of positive restrictions that might be found elsewhere in the Constitution.
It must be evident that nothing but an extreme and exceptional extension of the operation or application of the defence power will support provisions upon a matter of its own nature prima facie outside Federal power, containing nothing in themselves disclosing a connection with Federal power and depending upon a recital of facts and opinions concerning the actions, aims and propensities of bodies and persons to be affected in order to make it ancillary to defence.
It may be conceded that such an extreme and exceptional extension may result from the necessities of war and, perhaps it may be right to add, of the imminence of war. But the reasons for this are to be found chiefly in the very nature of war and of the responsibility borne by the government charged with the prosecution of a war. "The paramount consideration is that the Commonwealth is undergoing the dangers of a world war, and that when a nation is in peril, applying the maxim salus populi suprema lex, the courts may concede to the Parliament and to the Executive which it controls a wide latitude to determine what legislation is required to protect the safety of the realm"—per Williams J., Victorian Chamber of Manufactures v. The Commonwealth.
A war of any magnitude now imposes upon the Government the necessity of organizing the resources of the nation in men and materials, of controlling the economy of the country, of employing the full strength of the nation and co-ordinating its use, of raising, equipping and maintaining forces on a scale formerly unknown and of exercising the ultimate authority in all that the conduct of hostilities implies. These necessities make it imperative that the defence power should provide a source whence the Government may draw authority over an immense field and a most ample discretion. But they are necessities that cannot exist in the same form in a period of ostensible peace. Whatever dangers are experienced in such a period and however well-founded apprehensions of danger may prove, it is difficult to see how they could ​give rise to the same kind of necessities. The Federal nature of the Constitution is not lost during a perilous war. If it is obscured, the Federal form of government must come into full view when the war ends and is wound up. The factors which give such a wide scope to the defence power in a desperate conflict are for the most part wanting.
The considerations I have enumerated must, of course, have their effect upon the operation to be attributed to the power, but what I have described as the extreme or exceptional extension of the operation or application of the power necessary to support the Act in virtue of ss. 4, 5 (1) and 9 (1) cannot, I think, be justified.
In the result I am of opinion that ss. 4 and 5, together with ss. 6, 7, 8 and 15, are invalid. I reserved for determination a special consideration affecting s. 10 (1) which might be said to suffice to sustain ss. 9, 10 (partially), 13 and 14. Subject to that matter I think that those sections cannot be supported.
The special consideration affecting s. 10 (1) depends upon the classes covered by paragraphs (a), (b) and (c). The Commonwealth Parliament, of course, has power to make laws governing the Federal public service and laws governing service or employment with any authority of the Commonwealth or any body corporate established by the Commonwealth. Section 10 (1) (a) and (b) of the Act are as follows:—"A person in respect of whom a declaration 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. . . ."
It is clear that, upon the subject of who shall hold these offices and who shall be disqualified and why, Parliament has complete legislative power in virtue of which any conditions or procedure can be prescribed, that is, subject to any specific restraints such as s. 116 of the Constitution. If s. 9 were confined to serving the purposes of s. 10 (1) (a) and (b) the provisions could be sustained as legislation with respect to the public service and Commonwealth authorities, corporate or not. Section 10 (1) (c) enacts that a person in respect of whom a declaration is in force under the Act shall be incapable of holding an office in an industrial organization to which the section applies or a branch of it. The industrial organizations covered include organizations registered under Part VI. of the Commonwealth Conciliation and Arbitration Act 1901-1949. Section 51 (xxxv.) of the Constitution has been interpreted as authorizing some laws affecting bodies so registered and the question arises ​whether s. 10(1)(c) can be thus supported in part. The question is whether by the application of s. 15A of the Acts Interpretation Act 1901-1948 it can be confined to registered organizations and upheld as an exercise of the power conferred by par. (xxxv.).
It is convenient to deal with this question at once. I think that to uphold it under s. 51(xxxv.) is impossible on the simple ground that it is not with respect to the subject of that paragraph that the law is enacted, it is not a law with respect to conciliation and arbitration for the prevention and settlement of two-State industrial disputes. The only way in which the power can be made applicable is through registration. The legislature authorizing registration may, as an incident of the power in virtue of which it does so, impose conditions. But s. 10 (1) (c) speaks entirely independently of registration, which it ignores as an irrelevancy. It is not addressed to the organization but to the declared person. No condition or duty is imposed on the body in relation to registration or otherwise. It simply incapacitates the man.
Paragraphs (a) and (b) of s. 10(1) stand in quite a different situation. The legislature possesses a power in relation to serving the Commonwealth and contracting with the Commonwealth which is well exercised by a law with respect to the capacity of the individual and it can place that incapacity on any ground and use any procedure. But in this instance I think that the difficulty lies in s. 9. That section ought not, in my opinion, to be sustained as a law enacted with respect to the public service or persons contracting with the Commonwealth for services to it (s. 14). It deals with persons who fall within sub-s. (1) and of whom a declaration is made according to sub-s. (2). A declaration made in pursuance of s. 9 (2) about a man, if validly made, is an absolutely privileged statement in the Gazette of a most disparaging description. It must be remembered that this would be its legal and practical nature, whether the opinion of the Executive that the man falls within one of the descriptions of sub-s. (1) is correct or is shown under sub-ss. (4), (5) and (6) to be wrong. It may be published of anybody, whether or not he is in the service of the Commonwealth or an authority of the Commonwealth or whether or not there is any chance of his ever entering such a service. Such a provision cannot, in my opinion, be referred to the power over those serving the Commonwealth or Federal bodies or agencies simply because one consequence assigned to the declaration is that it disqualifies the declared man for such service. I am therefore of opinion that no sufficient support can be found for these provisions. Holding as I do that ss. 4 to 15 (1) are invalid it ​follows that the remaining sections of the Act, which are only consequential, fall with them. This conclusion may be thought to bear out Dicey's well-known statement that Federal government means weak government: Dicey's Law of the Constitution, 1st ed. (1885), p. 157; 9th ed. (1950), p. 171. But it is necessary to remember that we are not here concerned with the extent to which the defence power allows of the suppression of definite conduct as distinguished from definite people and of the dissolution of bodies offending against definite prohibitions or failing to conform to definite requirements as distinguished from bodies made definite by the identification of the legislature or of the Executive. Nor is there any question here of the validity of provisions regulating the burden of proof in legal proceedings.
For the foregoing reasons I answer questions (1) (a) and (b) No and question (2) Yes.
* ↑ (1945) 326 U.S. 135, at p. 143 [89 Law. Ed. 2103, at p 2109].
* ↑ (1917) 23 C.L.R. 510, at p. 544.
* ↑ (1919) A.C. 696 at p. 706.
* ↑ (1910) 11 C.L.R. 100, at pp. 109-111.
* ↑ (1947) 74 C.L.R. 492.
* ↑ (1949) 78 C.L.R. 353, at p. 360.
* ↑ (1949) 79 C.L.R. 43.
* ↑ (1943) 67 C.L.R. 95.
* ↑ (1914) A.C. 237; (1913) 17 C.L.R. 644.
* ↑ (1929) 42 C.L.R. 481, at pp. 497, 498.
* ↑ (1949) 79 C.L.R., at p. 116.
* ↑ (1949) 79 C.L.R., at pp. 148, 149.
* ↑ (1937) 59 C.L.R. 170.
* ↑ (1944) 69 C.L.R., at p. 471.
* ↑ (1915) 20 C.L.R. 299; (1915) V.L.R. 476.
* ↑ (1942) A.L.R. 359.
* ↑ (1947) 75 C.L.R., at pp 102-104.
* ↑ (1949) 79 C.L.R., at pp. 83, 84.
* ↑ (1892) A.C. 644, at p. 653.
* ↑ (1834) 6 Car. & P. 537 [172 E.R. 1376].
* ↑ (1857) 1 H. & N. 1, at pp. 8 (arguendo) and 12 [156 E.R. 1093, at pp. 1096, 1098].
* ↑ (1916) 1 K.B. 268.
* ↑ (1936) 1 All E.R. 623, at pp. 630, 631.
* ↑ (1937) 3 All E.R. 577, at pp. 582, 583.
* ↑ (1916) 21 C.L.R., at p. 442.
* ↑ (1916) 21 C.L.R., at p. 448.
* ↑ (1947) 75 C.L.R. 445.
* ↑ (1947) 74 C.L.R., at p. 402.
* ↑ (1943) 67 C.L.R., at p. 400.