# Australian Communist Party v The Commonwealth (1951, HCA)/Latham CJ

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​Latham C. J. In these proceedings the Court is required to adjudicate upon the validity of the Communist Party Dissolution Act 1950. The question comes before the Court upon a case stated under the Judiciary Act 1903–1948, s. 18, by which Dixon J. has referred to the Court two questions which arise in each of eight actions in which the plaintiffs claim declarations that the Act is invalid. The questions submitted to the Court 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 I are the provisions of the Communist Party Dissolution Act 1950 invalid either in whole or in some part affecting the plaintiffs?"
The plaintiffs in the actions are the Australian Communist Party, certain trades unions registered under the Commonwealth Conciliation and Arbitration Act 1904–1949, a trade union not so registered, and individual persons who hold positions as officers of one or other of the plaintiff unions. The Communist Party is not shown to be a legal person and therefore is not a competent plaintiff. But there are individual persons as co-plaintiffs in the action to which it purports to be a party.
1. I propose first to summarize the provisions of the Act.
The Act is introduced by a preamble which states, inter alia, that the Australian Communist Party is a revolutionary party using violence, fraud, sabotage, espionage and treasonable or subversive means for the purpose of bringing about the overthrow or dislocation of the established system of government of Australia and, particularly by means of strikes or stoppages of work, causing dislocation in certain industries which are declared to be vital to the security and defence of Australia. The Act dissolves the Australian Communist Party and forfeits its property (s. 4). The ​Act provides, subject to a declaration by the Governor-General, means for the dissolution of bodies of persons associated in the manner specified in the statute with the Communist Party or communism (s. 5) and for the forfeiture of the property of such associations (s. 8). The Act also contains provisions penalizing acts which are directed towards the continuance of the activities of an association (s. 7). The Act (ss. 9 and 10) deals also with individual persons and provides, subject again to a declaration by the Governor-General, that persons with specified communist associations shall be ineligible for holding office under or for employment by the Commonwealth or for holding office in an industrial organization which the Governor-General declares to be an organization to which s. 10 applies.
An association can be declared to be an unlawful association under the Act only if it falls within one of the descriptions contained in s. 5 (1). These provisions all specify some degree of association with the Communist Party or with communism. Further, it is necessary (s. 5 (2)) that the Governor-General should be satisfied that the body of persons to which it is proposed to apply the law is a body of persons to which the 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 (s. 5 (2)). Where these conditions are satisfied the Governor-General may declare the body of persons to be an unlawful association.
Section 5 (3) contains a provision 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 a committee consisting of the Solicitor-General, the Secretary to the Department of Defence, the Director-General of Security and two other persons appointed by the Governor-General in Council. This committee consists of responsible persons but it is not a court and the Governor-General is not a judicial officer.
Section 5 (4), (5) and (6) provide for an application to a court to set aside the declaration on the ground that the body in question is not a body to which the section applies. Thus a body would be able to challenge before a court the declaration that it was associated in the manner set out in s. 5 (1) with the Communist Party or with communism, but would not be able to challenge in a court the declaration of the Governor-General as to the other element which is the condition of making a declaration, namely ​that the continued existence of the body would be prejudicial to defence or to the maintenance and execution of the Constitution, &c. (The defendants have argued, it is true, that the decision of the Governor-General as to the last-mentioned matter is examinable in a court to some extent. I deal with this question later.)
In the case of individuals, their disqualification for union office or employment by or under the Commonwealth is governed by s. 9. This section applies to persons who have the association with communism specified in s. 9 (1). Section 9 (2) provides that where the Governor-General is satisfied that the person is a person to whom the 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 make a declaration accordingly. This section contains provisions corresponding to those contained in s. 5 with respect to the consideration of material by a committee and an application to a court to set aside the declaration on the ground that the person is not a person to whom the declaration applies. As in the case of s. 5, s. 9 does not provide for any application to a court in respect of the declaration that the person is engaged or likely to engage in the prejudicial activities specified in the section.
2. I will now summarize the principal arguments adduced on behalf of the plaintiffs and then set out the provisions of the Act in greater detail. The plaintiffs were represented by several counsel and the arguments presented on behalf of them respectively were naturally not identical.
First, it is objected by the plaintiffs that the Act. is invalid because it is not a law with respect to any subject with respect to which the Commonwealth Parliament has legislative power. More particularly it is contended that it is not a law which is authorized by s. 51 (vi.) and s. 51 (xxxix.) of the Constitution. These paragraphs provide that the Commonwealth Parliament may make laws with respect to—" (vi.) 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: … (xxxix.) Matters incidental to the execution of any power vested by this Constitution in the Parliament or in either House thereof, or in the Government of the Commonwealth, or in the Federal Judicature, or in any department or officer of the Commonwealth."
Section 61 of the Constitution provides:—"The executive power of the Commonwealth is vested in the Queen and is exerciseable 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."
In support of this objection the plaintiffs rely upon many decisions of the Court that there must be a real and substantial connection with the subject matter of power before a law can be held valid. It is contended that, apart from the preamble to the Act, there is nothing to show that the existence of the Communist Party or of affiliated organizations or the continuance in offices of persons belonging to or associated with that Party have any relation to defence or to the maintenance of constitutional government. It is contended that the statements contained in the preamble are irrelevant to all questions affecting the validity of the Act because the Commonwealth Parliament is unable to create legislative power under the Constitution by purporting to determine some particular fact or set of facts in a particular way.
Secondly, it is contended that if the allegations contained in the preamble to the Act are relevant to the determination of the question of the validity of the Act evidence is admissible to show that the recitals are untrue. It is argued that the fact that Parliament was satisfied that they were true is irrelevant to the question of the validity of the Act.
Thirdly, under the Act the Parliament purports, it is said illegitimately, to exercise judicial power in (a) dissolving the Australian Communist Party by direct enactment, and (b) making the provisions of s. 5 (relating to unlawful associations) and s. 9 (relating to individuals) dependent upon the opinion of the Governor-General.
Fourthly, it is argued that the provisions for forfeiture of property are contrary to the provisions of s. 51 (xxxi.) of the Constitution, which provides that the Commonwealth may make laws with respect to the acquisition of property "upon just terms" and not otherwise.
Fifthly, it is contended that as the plaintiff unions are Federal unions and they and their officers have many inter-State activities, s. 92 of the Constitution prohibits the enactment of any law which prevents the carrying out of those activities. It has been argued that no law, Federal or State, can control the inter-State operations of political parties, of unions or of officers of those parties or of officers of unions.
Sixthly, it has been argued that no Federal legislation can, by means other than a judicial decision, put an end to the existence ​of any voluntary association if that association has some lawful objectives.
Seventhly, it has been contended that no Federal legislation can by any means put an end to the existence of any voluntary organization which has political objectives and is a political party. Laws which do so are, it is said, not authorized by the Commonwealth Constitution and, further, if the political party is interested in State politics, such a law is inconsistent, it is said, with the Constitutions of the States.
3. I now state the provisions of the Act in greater detail.
The Act is introduced by a preamble which consists of nine paragraphs. The first three paragraphs recite the terms of the Constitution, s. 51 (vi.), s. 61 and s. 51 (xxxix.), to which reference has already been made. The other recitals are as follows:— 4. "And whereas 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:" 5. "And whereas the Australian Communist Party also 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 or political ends by force, violence, intimidation or fraudulent practices:" 6. "And whereas 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 and also engages in activities or operations similar to those, or having an object similar to the object of those, referred to in the last two preceding paragraphs of this preamble:" 7. "And whereas certain industries are 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):" 8. "And whereas activities or operations of, or encouraged by, the Australian Communist Party, and activities or operations of, or encouraged by, members or officers of that party 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 those vital industries:" 9. "And whereas 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:" It will be observed that these recitals refer not only to the Australian Communist Party as a party operating in Australia, but also to the basic theories of communism, in accordance with which it is alleged that that Party engages in activities in order to bring about a revolutionary situation (par. 4). The Party is stated to be an integral part of the world communist revolutionary movement (par. 6). Persons who are communists are said to be engaged in activities designed to cause dislocation, disruption or retardation of work in vital industries (par. 8). Thus the recitals are not limited to allegations with respect to the Australian Communist Party. They contain allegations with respect to communism generally and with respect to the association of the Party with communism, and with respect to persons who are communists. Paragraphs 4 to 8 consist of allegations of fact. Paragraph 9 expresses the opinion of the Commonwealth Parliament that it is necessary for reasons of defence and the maintenance of the Constitution to enact the provisions of the Act.
The Act came into operation on 20th October 1950 and the statements in the preamble must be regarded as relating to matters as at or about that date.
Section 3 of the Act defines "communist" as a person who supports or advocates the objectives, policies, teachings, principles or practices of communism as expounded by Marx and Lenin. "Industrial organization" is defined as meaning "an organization of employers or employees associated for the purpose of protecting and furthering their interests in relation to terms and conditions of employment or for purposes including that purpose". "The Australian Communist Party" is defined as meaning "the organization having that name on the specified date, notwithstanding any change in the name or membership of that organization after that date." "The specified date" means 10th May 1948. "Unlawful association" means "the Australian Communist Party or a body of persons declared to be an unlawful association" under the Act.
​Section 4 of the Act deals with the Australian Communist Party. Sub-section (1) declares the party to be an unlawful association which by force of the Act is dissolved. Sub-section (2) provides for the appointment by the Governor-General of a receiver of the property of the party. Sub-section (3) provides for the vesting of the property of the party in the receiver. These consequences are produced by direct enactment. The Act does not leave it to any court to determine whether the Australian Communist Party should or should not be suppressed. Parliament has made its own decision on that subject.
Section 5 provides that the bodies of persons described in sub-s. (1) may be declared by the Governor-General to be unlawful associations if he is satisfied as to certain matters specified in sub-s. (2) Before he can make such a declaration the material upon which the advice of the Executive Council to the Governor-General is founded must be considered by a committee. There may be an application to a court to set aside the declaration—but only upon the ground that a body is not a body to which the section applies.
The defendants sought to support these provisions by finding in sub-s. (2) a basis for the Act. That basis was said to be the opinion of the Governor-General that the continued existence of the body would be prejudicial to the defence of the Commonwealth or the maintenance of the Constitution, &c., provided that the decision of the Governor-General could be shown, if challenged, to be an opinion in relation to a matter which was "in fact and in law" comprehended within the subjects mentioned—defence and maintenance of the Constitution, &c. I do not agree with this contention. For reasons which I state hereafter I find what I regard as a good basis for s. 5 in sub-s. (1) and, though it is not necessary for me to do so, I am of opinion that such a basis can also be found in sub-s. (2), even though sub-s. (2) is interpreted in a manner which the defendants disclaim and the plaintiffs support—namely, as making the opinion of the Governor-General unexaminable as to all the matters mentioned in sub-s. (2) except the matter as to which an application to a court is allowed. In order to deal with the various arguments which were based on s. 5, I set out the whole of the section, which is as follows:— "5. (1) This 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 ​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. (2) 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. (3) The Executive Council shall not advise the Governor-General to make a declaration under the last preceding subsection unless the material upon which the advice is founded has first been considered by a committee consisting of the Solicitor-General, the Secretary to the Department of Defence, the Director-General of Security, and two other persons appointed by the Governor-General body of persons declared to be an unlawful association under subsection (2) of this section may, within twenty-eight days after the publication of the declaration in the Gazette, 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. (5) At the hearing of the application, the applicant shall begin; if evidence is given in person by such officer or offcers of the applicant as the court is satisfied is or are best able to give full and admissible evidence as to matters relevant to the application, the burden shall be upon the Commonwealth to prove that the applicant is a body to which this section applies, but, if evidence is not so given, the burden ​shall be upon the applicant to prove that the applicant is not a body to which this section applies. (6) Upon the hearing of the application, the declaration made by the Governor-General under subsection (2) of this section shall, in so far as it declares that the applicant is a body of persons to which this section applies, be prima-facie evidence that the applicant is such a body."
All the bodies referred to in pars. (a), (b), (c) and (d) of s. 5 (1) possess the characteristic of being associated in some degree with the Australian Communist Party or with communism—both of which have been defined by Parliament in the preamble to the Act as public dangers. If Parliament has the power to suppress any such body by direct legislation, it might have done so by declaring them, as well as the Australian Communist Party itself, to be unlawful associations and dissolving them. Parliament has not done so. It has required that other conditions also be satisfied, namely, that the body should, in the opinion of the Government (the Governor-General advised by the Executive Council) be a body the continued existence of which would be prejudicial to defence, &c. Another condition is that the material on which the Government acts should have been considered by a committee. A further condition is that the declaration may be set aside by a court upon the ground that the body is not a body to which the section applies. All these conditions operate to limit what would otherwise have been a more extended operation of s. 5.
Section 6 provides that when a declaration is made with respect to a body of persons it shall, upon the expiration of twenty-eight days after the publication of the declaration in the Gazette, be dissolved. Subsection (2) provides means for postponing the dissolution of the Party in the case of there being an application to a court to set aside the declaration.
Section 7 creates offences with penalties. They are all associated with attempts to carry on the activities of an unlawful association which has been dissolved. As examples I mention s. 7 (1) (a)—a person shall not knowingly "become, continue to be, or perform any act as an officer or member of an unlawful association and "(d) in any way take part in any activity of an unlawful association or carry on, in the direct or indirect interest of an unlawful association, any activity in which the unlawful association was engaged, or could have engaged, at the time when it became It was argued that the effect of this an unlawful association." latter provision was to prevent any person taking part in future in an activity of any kind in which the association had been engaged or should have engaged. For example, an association ​might collect money for hospitals. It was argued that this section would make it an offence for any person, after the association was declared, to collect money for hospitals. This argument finds no support in the words of the section. What is prohibited under par. (d) is taking part in any activity of an unlawful association, that is to say, as such an activity, and it also prohibits carrying on activities of the association in the direct or indirect interest of an unlawful association. Accordingly there is no ground for the contention that the Act prohibits the doing by any person of anything that an unlawful association has done or could do, however innocent.
Section 8 relates to the appointment of a receiver of the property of an unlawful association. Section 9 is a section dealing with individual persons corresponding to s. 5, which deals with associations. The section contains the following provisions:—"(1) This 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 this 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. (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 Commonwealth, the Governor-General may, by instrument published in the Gazette, make a declaration accordingly." (Section 9 (1) (a) cannot come into operation unless the Act does effectively dissolve the Australian Communist Party.)
These provisions are followed by provisions requiring an examination of material by a committee and giving a right to apply to a court to set aside a declaration made in respect of an individual "on the ground that he is not a person to whom this section applies". The comments made upon s. 5 apply also to s. 9.
Section 10 (1) provides that a person in respect of whom a declaration is in force under the 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—"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 11 provides in sub-s. (1)—"If, upon the making of a declaration in respect of a person under this Act, that person holds any office referred to in sub-section (1) of the last preceding section or is employed by the Commonwealth or by an authority of the Commonwealth, that person shall, by force of this Act, be suspended from the office or employment."
Section 12 provides that if an industrial organization is declared under s. 10 (3) any office in that organization held by a declared person shall become vacant.
These sections deprive declared persons of contractual rights and limit the power of appointment to offices in Commonwealth employment and in industrial organizations.
Section 15 provides that it shall be the duty of the receiver of an unlawful association to take possession of the property of the association, to realize it, to discharge the liabilities of the association and to pay or transfer the surplus to the Commonwealth.
Section 16 provides for an application to the High Court to determine any question relating to the property or liabilities of the association or to the performance of his duties or the exercise of his powers under the Act.
Section 27 provides as follows:—"Where the Governor-General is satisfied that the continuance in operation of this 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 this Act shall be deemed to have been repealed."
4. By pleading and by affidavit the plaintiffs have denied the statements contained in the fourth, fifth, sixth, eighth and ninth recitals of the preamble to the Act. The plaintiffs propose to adduce evidence in support of these denials with a view to establishing that the Act is not authorized by the legislative power of the Commonwealth and is therefore void. An affidavit of one of the plaintiffs sets out the allegations, contrary to the recitals, which that plaintiff desires to establish by evidence. Further affidavits ​show that the Australian Communist Party, the plaintiff unions and their officers engage in substantial inter-State activities, including inter-State correspondence.
5. The principal argument of the plaintiffs related to the alleged connection of the Act with the subjects of defence of the Commonwealth (Constitution, s. 51 (vi.)) and protection of the constitutional government of the Commonwealth (Constitution, s. 51 (xxxix.) and s. 61). It has been decided on many occasions that Commonwealth legislation can be valid only if it has a real connection with a subject matter of legislative power which is assigned to the Commonwealth Parliament by the Commonwealth Constitution. Many cases might be cited in support of this proposition. I refer only to the following cases among those upon which the plaintiffs particularly relied (Victoria v. The Commonwealth Victorian Chamber of Manufactures v. The Commonwealth Bank of New South Wales v. The Commonwealth).
The plaintiffs also relied upon decisions of this Court to the effect that Parliament cannot define or extend its constitutional power by reciting facts or by a legislative statement of connection between a particular law and a head of power. The powers of the Commonwealth Parliament are defined, and therefore limited, by the Constitution. The Court has held on several occasions that the opinion of the Parliament or the opinion of the Governor-General or of a Minister that a particular matter is within the legislative power of the Commonwealth Parliament did not affirmatively establish that the matter actually is within such power. The plaintiffs relied particularly upon Ex parte Walsh and Johnson. See also South Australia v. The Commonwealth (Uniform Tax Case); Reid v. Sinderberry. It is therefore argued for the plaintiffs that the statements in the preamble to the Act certainly cannot be taken to be conclusive proof of the facts stated and, indeed, that they are not even prima-facie proof—that the Court itself must be satisfied that they are true before they can form a foundation for such legislation as that contained in the Act. Thus it is argued that the Act really operates in a vacuum by dissolving the Australian Communist Party, no connection between the continued existence of the Australian Communist Party or of the other associations mentioned in the Act and the subject of defence or maintenance of the Constitution, &c., being shown. In relation to such other associations and to individuals, the operation of the ​Act depends, not only upon the conditions of ss. 5 (1) and 9 (1) being satisfied, but also upon the opinion of the Governor-General that the association or the individual is concerned in activities prejudicial to the matters mentioned in the Constitution, s. 51 (vi.) and (xxxix.), that is, defence of the Commonwealth and maintenance of the Constitution and laws of the Commonwealth. Such an opinion, it is said, cannot establish a real connection of the Act with the subjects to which it purports to relate.
The defendants did not dispute the authority of the cases mentioned, but, relying upon statements in those cases that a statement by Parliament should be treated with respect, though not as conclusive, argued that, unless the Court had judicial notice of facts which showed those statements to be untrue, the statements should be accepted as conclusive. The defendants also asked the Court to take judicial notice of the truth of a series of propositions relating to communism, communist propaganda and motives, and generally as to dangers of war in the existing international situation. It was contended that the facts stated in those propositions provided a constitutional basis for the Act.
6. Before examining the relevance to the present case of the authorities cited I propose to refer to some general considerations affecting the nature of the defence power and of the power to make laws to protect the existence of constitutional government.
These powers are, I propose to show, essentially different in character from most, if not all, of the other legislative powers of the Commonwealth Parliament. The exercise of these powers can be intelligent only when they are used in relation to some national objective which is concerned with protecting the country against what is regarded as a danger. The most important question which arises in these cases is whether legislation for such a purpose approved by Parliament cannot be valid unless it is also approved by a court after hearing evidence as to the existence of national danger.
These powers are perhaps the most important powers intrusted to the Parliament of the Commonwealth. The continued existence of the community under the Constitution is a condition of the exercise of all the other powers contained in the Constitution, whether executive, legislative or judicial. The preservation of the existence of the Commonwealth and of the Constitution of the Commonwealth takes precedence over all other matters with which the Commonwealth is concerned. As Cromwell said, "Being comes before well-being". The Parliament of the Commonwealth and the other constitutional organs of the Commonwealth cannot ​perform their functions unless the people of the Commonwealth are preserved in safety and security.
Any Government which acts or asks Parliament to act against treason or sedition has to meet the criticism that it is seeking not to protect government, but to protect the Government, and to keep itself in power. Whether such a criticism is justified or not is, in our system of government, a matter upon which, in my opinion, Parliament and the people, and not the courts, should pass judgment. The contention that such an argument affects the validity of a law reminds me of the decision of a court in another country, when I was there, in a case of alleged treasonable conspiracy. The Court held that the accused did not intend to destroy government, but only to bomb public offices and assassinate ministers and generals and others. As they intended to take over the task of governing the country themselves, they were not guilty. I did not then, and do not now, agree with such a decision.
The exercise of these powers to protect the community and to preserve the government of the country under the Constitution is a matter of the greatest moment. Their exercise from time to time must necessarily depend upon the circumstances of the time as viewed by some authority. The question is—"By what authority—by Parliament or by a court?"
The defence power is, it has been held by this Court, a power which is essentially related to purpose. There is no difference in this respect between the defence power and the power to protect the community against attacks upon or undermining of constitutional government. The exercise of either power may affect the rights and duties of persons in Australia, whether or not the country is at war. What I say in this judgment about the former power applies equally to the latter power.
I therefore proceed to consider what matters are, or normally may be, taken into account in ascertaining whether dangers exist against which laws passed under the defence power may be directed.
Defence policy depends upon the identification in some manner of dangers against which, it is thought, the community should be protected. No defence policy can be determined merely upon an examination of facts proved by legally admissible evidence.
(a) In the first place, there must be a decision as to the objectives of national policy. What are to be regarded as dangers to be guarded against? If the national policy aims at, for example, an alliance with Russia, the identification of the dangers against which legislation should be directed will be entirely different from the identification of such dangers if policy is directed to the creation ​or development of friendship with certain other countries. If the policy is for communism, there will be one complex of real or apprehended dangers. If the policy is against communism, there will be a completely different complex of such dangers. Thus the acceptance of some national objective is the governing consideration in determining against what dangers the Commonwealth should be guarded by the exercise of one or both of the legislative powers now under consideration. Policy frequently aims at the changing of facts in accordance with ideas. Persons with different ideas upon national policy will almost certainly approve different policies in relation to the same facts. No finding of facts by a court can provide an answer to the problem of identifying national dangers against which the people are to be defended. Thus the most important question in these cases is whether the Parliament of the Commonwealth, responsible to the people, has the decisive power to determine whether Australia is for communism or against communism, and to legislate in accordance with its decision, or whether it can do so only if a court agrees with its decision. Precisely the same question would arise if Parliament had legislated against Nazism or Fascism at a time when, in the judgment of Parliament, it was thought wise to do so. My reasons for judgment would be the same in any such case as in this case.
(b) In the next place, defence policy includes defence against internal enemies and against real or suspected internal agents or supporters of actual or potential external enemies. The power of defending the people committed by the Constitution to the Commonwealth would be a weak protection if it did not extend to protecting the people against internal attack by means of subversive and treasonable activities. Such activities may assume many forms. In addition to actual assistance given to an enemy in time of war, fifth-column work prepares the way for an enemy by undermining the morale of a people and by hindering the exercise of governmental powers in the community. It is a great help to a potential enemy to have inside a country a body (with activities which are ostensible and innocent) which engages in propaganda designed to make people think that potential invaders will be actual liberators. This is a well-established form of revolutionary technique. One of the most effective forms of fifth-column work is to use any real or pretended dispute—political, industrial or religious—as a means of promoting social confusion and dislocating the economy of a country. The aim will be to prevent the production of coal and steel for military and other purposes and particularly for munitions and to make it impossible to build up ​reserves of oil, coal, steel and other materials which are essential in modern war. Any interference with industries vital to defence will help any external enemy.
(c) Thus, in determining whether there should be legislation against what the adoption of a policy has decided are national dangers against which defence is necessary, many circumstances may, and generally will, be taken into consideration. There may be extensive examination of the international situation, the views upon which may determine whether action should be taken against an external power or against persons who are regarded as agents for an external power which is a potential future enemy and against which cautionary action, or possibly even war, is necessary. Whether another country is a friend or not—whether a change in its government or in the policy of its government is likely—these are matters of judgment, not of fact in the ordinary sense. It can only be a question of opinion and not a question of fact upon which a court can make a decision as to whether the international situation is "set fair" or "stormy" and in what quarter a storm is likely to arise. A person with one set of political ideas may approve an existing international situation, whereas a person with another set of political ideas may take an exactly contrary view. These are not matters for a court to consider.
(d) In addition to information of all kinds relating to the international situation and opinions with respect to such information, the capacity of a country to defend itself will be taken into account. Thus it will be necessary before determining upon a particular course of action in relation to defence matters, external or internal, to consider the strength and readiness of the naval, military and air forces, the peaceful or disturbed state of the industry of the country, its material resources, the morale of the country, the readiness of the people to fight, their ideas upon what is nationally right and wrong, their national hopes and fears, emotions and apprehensions; all of these matters will enter into the consideration of defence policy. Thus the internal situation may be a matter of the greatest importance. The responsible authorities, in making up their minds upon these matters, will act upon diplomatic reports, intelligence reports from many countries, security reports, rumour, suspicion—upon much information which is necessarily secret—and upon other material which is highly relevant but which could not possibly be proved or used in any way in accordance with legal rules of evidence. No Government could produce such material in a court. Much of it would be derived from friendly foreign chancelleries and would necessarily be highly confidential. Reports ​from its own representatives and officers would, in the interests of public safety, also necessarily be confidential, and the identity of the security officers who made the reports could not be disclosed. Publication of such reports might well bring about a situation of aggravated danger which they were designed to prevent or forestall.
This is the kind of material which lies at the basis of any responsible defence policy. No authority can make a sensible decision in relation to such policy unless such material is available to it. Such material cannot be made public in a court and most of it would be inadmissible in evidence.
(e) The next stage in determining policy consists in answering the question whether the situation as so estimated and assessed contains elements of danger to the country. Upon this question there are always different opinions. What to some is a dangerous threat is to others a promise of paradise. Even men who agree in general policy may have different ideas as to whether real danger exists. Such a question cannot possibly be determined merely by evidence as to facts. The plaintiffs' argument really means that in Australia such debates as took place between Pitt and Fox and between Burke and Paine must take place, not only in Parliament and before the people, but ultimately, and then only with final significance, in the courts.
(f) If, upon the basis of what are regarded by Ministers and Parliament as relevant matters, it is considered by the Government and Parliament that there is a danger to the country, the next question is whether legislation should be passed to meet the danger or whether it is wiser to ignore it. As to the proper character and extent of that legislation opinions will differ.
The Government and Parliament are responsible to the electorate for the policy of "fight" or "not fight" which they adopt after such consideration as is thought proper has been given to all the above matters.
The matters mentioned under the above headings (a) to (f) are mainly matters purely of policy and of opinion. They are not actual or objective facts which can be "found" by a court. Such matters of "fact" as are involved have no significance except in relation to some policy. Many of the relevant matters, as already stated, could never be made public. The plaintiffs contend that the view of the Government and Parliament, based upon the considerations mentioned, is irrelevant when the validity of legislation is to be determined. If a court agrees with Parliament that certain legislative action is really for the defence of Australia the Court will hold an Act to be valid. If the Court disagrees with ​the view of Parliament, then it must, it is argued, hold the Act to be invalid.
That this is the question involved in these cases was most clearly put on behalf of the Australian Communist Party. In a written argument submitted on behalf of that plaintiff the following submission is made with reference to legislative measures sought to be supported as laws for the purpose of maintaining the Constitution:—"It is for the Court to determine (a) whether the measures might reasonably be considered to be necessary, and (b) what is the nature and extent of the actual threat to the maintenance of the Constitution and the execution of the laws of the Commonwealth." It is obvious that as a matter of principle the same argument must apply to the defence power, and the case was so argued on behalf of all the plaintiffs. I take the following statement, in relation to the defence power, from the reasons for judgment of my brother Williams:—"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." In my opinion this proposition accurately expresses the principal contention against the validity of the Act. The plaintiffs contend that when it is sought to support legislation under the defence power, before a court can hold the legislation to be valid, the court first must be satisfied upon legally admissible evidence as to the existence of the "actual or objective facts" relied upon as a basis for the legislation; secondly, the Court must be satisfied that those facts constitute a danger to the Commonwealth; and thirdly, the Court must be satisfied that the legislation is reasonably necessary for the alleged defensive purpose; that is, to repeat what was said in argument, the legislation must not "go too far" or "be incommensurate" or "be too drastic".
All the arguments for the plaintiffs upon this question depended upon the acceptance of a principle that it was for a court and not for a Government or a Parliament to determine whether interference with, resistance to, and undermining of a defence policy approved by a Government and by the Parliament to which it was responsible was proved to exist by admissible evidence of actual happenings and whether it was sufficiently dangerous to the community to justify an exercise of the defence power for the purpose of destroying what the Government and Parliament regarded as a hostile and traitorous organization.
​7. I proceed to consider what, upon the basis of the acceptance of this contention, would be the function of a court in considering the validity of any Commonwealth statute directed against a body which was alleged to be subversive or traitorous. The question may conveniently be considered in connection with the recitals contained in the Act now before the Court.
There are three possible views with respect to the allegations contained in the recitals.
(a) One communist might well admit without any apology that the recitals were all true, but would contend that they represented an entirely justifiable protest, to the point of revolution, if necessary, against an intolerable condition of society. To a person holding such an opinion the proof of the truth of the recitals would not establish the existence of any real danger to Australia, and therefore could not possibly justify any legislation under the defence power. History shows many instances of the application of a principle that a moderate amount of assassination, and civil war itself, is quite justifiable in an endeavour to create a better world. Whether suppressing communist organizations and organizations associated with them can be regarded as action in defence of Australia or not depends, whatever facts may be established by evidence, on the political opinion with respect to communism of the judge or other person who answers the question.
(b) Another communist might vigorously deny the truth of the recitals and argue that therefore the alleged danger did not exist. If legally admissible evidence did not show that the recitals were true, then, on the plaintiffs' argument, the Act would be invalid. This is the attitude which, in these proceedings up to the present time, the plaintiffs have adopted. It would be open to them later to change their ground, and, if the facts asserted in the recitals were proved against them, to argue that what was being done was being done in the true interests of Australia, and that it was not shown that the proved activities constituted a danger which justified legislation under the defence power. Then the Court would have to decide whether or not it was in the true interests of Australia that there should be a revolution. This would be a decision upon policy and would necessarily depend upon the political views of the judge.
(c) An anti-communist might say that the recitals, or many of them, were true, and that the facts therein stated obviously showed the existence of a very grave public danger against which defence was expedient and reasonable and, indeed, necessary. Judges who ​were anti-communist in political opinion would agree with this proposition.
Accordingly the question whether the defence of Australia requires the suppression of communist activities cannot possibly be determined by any decision upon facts. Facts which are viewed with abhorrence by persons of one political opinion are greeted with applause by their opponents. It is not for a court either to abhor or applaud. Even if all the facts stated in the recitals in the present Act were proved to be true the decision as to whether the Australian Communist Party could constitutionally be suppressed or not would, upon the arguments for the plaintiffs, be made to depend entirely upon the political opinions of the judges. The Court should, in my opinion, have no political opinions.
It will be protested that the arguments for the plaintiffs do not really involve the proposition that a court should make up its mind upon any question of policy. In my opinion the express arguments of the plaintiffs do necessarily involve the consideration by the Court of what must be a question of policy and not of law. In addition to what I have already said I suggest that it may usefully be considered what the duty of the Court would be in relation to the present Act if the Act had been so framed as to allow a court to determine what the plaintiffs contend must be determined by a court before such an Act could be held to be valid. Let it be supposed that the parties adduced evidence with respect to the truth or untruth of the recitals. Let it be supposed that the Court found that some of the recitals were true, and that others of them were false. What would be the position then? Obviously on the argument of the plaintiffs the Court would have to determine whether enough facts were left to constitute a danger which called the defence power into operation. The decision upon such a question would inevitably and necessarily depend upon the political opinion of the judge as to whether communism was a good thing or a bad thing—whether what was proved showed a real danger to the people.
I am aware that it is sometimes said that legal questions before the High Court should be determined upon sociological grounds—political, economic or social. I can understand courts being directed (as in Russia and in Germany in recent years) to determine questions in accordance with the interests of a particular political party. There the court is provided with at least a political standard. But such a proposition as, for example, that the recent Banking Case should have been determined upon political grounds ​and that the Court was wrong in adopting an attitude of detachment from all political considerations appears to me merely to ask the Court to vote again upon an issue upon which the electors and Parliament had already voted or could be asked to vote, and to determine whether the nationalization of banks would be a good thing or a bad thing for the community. In my opinion the Court has no concern whatever with any such question. In the present case the decision of the Court should be the same whether the members of the Court believe in communism or do not believe in communism.
In my opinion the arguments for the plaintiffs show no adequate appreciation of the functions of the executive and of Parliament in a system of government under a Federal constitution. The governing questions in relation to defence and to the protection of constitutional government are questions of policy with which a court has nothing to do. It is not the case that all the questions which arise in government are "questions of fact" or "questions of law"—the former possibly for a jury and the latter for a court. When those responsible for the safety of the country determine to go to war they may be moved by all kinds of considerations and circumstances, many of which could never be stated in the form of categorical propositions which would be capable of proof by legally admissible evidence. Entry into a war may be determined from one point of view readily and easily as a matter of self-preservation. But where some people take this view others may take a contrary view. It is notorious that in 1939 and 1940, though Parliament and the Government considered that the defence of Australia made it necessary to fight Germany, there were those in Australia and elsewhere who contended that the war was merely an "imperialist adventure" that had nothing whatever to do with the defence of Australia.
8. It is in the light of these considerations that I come to the decisions of this Court upon which the plaintiffs rely.
Upon the arguments submitted by all the plaintiffs in this case it would have been open to a defendant who was prosecuted under the War Precautions Act 1914 or the National Security Act 1939 to contend that it was wrong for the Court to consider merely whether the legislation had a real connection with the prosecution of the war, and that the Court should consider and decide whether the war itself was really an operation for the defence of Australia. Neither in the First World War nor in the Second World War did the Court ever consider any such matter. The Court in each case accepted without question the determination of those responsible ​for the defence of the Commonwealth that these wars were wars fought in defence of the Commonwealth. Entry into war as being for the defence of Australia was a purely executive act. It was the decision of the Government, and not the decision of any court, that the war undertaken was for the defence, or "could reasonably be thought to be" for the defence of Australia, which provided the constitutional foundation for legislation under the defence power. In such legislation the Parliament adopted and approved the executive act. It was not open to any court to pass upon such action of the Government or of the Parliament.
The exercise of the power to make laws with respect to defence has never been held in this Court to be dependent on the actual existence of war at the time when the legislation was passed. The Defence Act itself was passed in a time of peace, and preparation for war and against war is included within the defence power. The power does not cease to be available when actual hostilities cease (Australian Textiles Pty. Ltd. v. The Commonwealth; Dawson v. The Commonwealth; Real Estate Institute of New South Wales v. Blair; Hume v. Higgins).
The defence power authorizes the Commonwealth Parliament if it thinks proper to enact laws not only to punish but also to prevent injurious activities. It is not necessary for the Government and Parliament to wait until war is actually raging and a crisis is upon us before preparing for war contingencies and legislating against hostile acts, whether internal or external, and whether actually performed or only apprehended. I repeat as to this matter what I said in the case of Adelaide Company of Jehovah's Witnesses Inc. v. The Commonwealth:—"In pursuance of the powers so conferred [by s. 51 (vi.) and s. 61 of the Constitution], the Commonwealth can defend the people, not only against external aggression, but also against internal attack, and in doing so can prevent aid being given to external enemies by internal agencies. No organized State can continue to exist without a law directed against treason. There are, however, subversive activities which fall short of treason (according to the legal definition of that term) but which may be equally fatal to the safety of the people. These activities, whether by way of espionage, or of what is now called fifth column work, may assume various forms. Examples are to be found in obstruction to recruiting, certainly in war-time, and, in my opinion, also in time of peace. Such obstruction may be both punished and prevented."
​See also Burns v. Ransley and R. v. Sharkey, where the Court held that the Commonwealth had power to legislate against such activities.
In my opinion the defence power, executive and legislative, would enable the Government to act and the Parliament to legislate with respect to a civil war. These constitutional organs, and not the judiciary, would decide whether or not fighting on one side or the other was defending the Commonwealth and the Constitution.
The plaintiffs do not contend that there is no power to pass some laws dealing with traitorous and subversive activities. Such laws may provide for the punishment of individual persons. But it is argued that a voluntary association cannot be suppressed and its property forfeited unless a court (as well as Parliament) determines that it is engaged in proved activities as actual and objective facts (i.e., as actual happenings), and unless the courts, as well as Parliament, are satisfied that the proved facts constitute a real danger, legislation against which is reasonably necessary. Unless these propositions are established to the satisfaction of a court, it is argued that no real connection with the subject matter of defence or protection of the Constitution is made out. The substance of the plaintiffs' arguments is that Parliament cannot legislate against an enemy unless the Court decides on evidence legally admissible (and the Court can have no other evidence) that it is an enemy and that the law is necessary or reasonable. In my opinion it is for the Government, subject as it is to the control of Parliament and the electors, and not for any court, to identify the enemies of the Commonwealth, internal or external.
In my opinion these arguments, based as they purport to be upon many decisions of this Court, are answered by the consideration to which I have already adverted, namely that the Court did not in any case consider whether the war which was being fought was really a war in defence of Australia. That question was dealt with and determined by the Government and by Parliament itself. This Court accepted the decision of the executive and legislative authorities upon the question of policy. The decisions to fight Germany and Japan were not made by the Court. The Court was not asked, and did not presume, to hold laws valid or invalid on the ground that the war was or was not really a war for the defence of Australia. The laws were held valid not because the Court agreed with the policy of the Government and Parliament in regarding Germany and Japan as enemies, but because the legislation was held to have a real connection with the war against ​Germany and Japan. In other words, the action of the Government in declaring war and of Parliament in adopting that decision and legislating in pursuance of it itself created a defence situation which provided a basis for the legislation. Upon the basis of the recognition of this fact, actually created by the political decision of the Government and Parliament, the Court in its decisions applied a rule that there must be a real and substantial connection between the legislation and the defence situation so created in order that the legislation could be valid, but the Court never considered whether what Germany and Japan had done or might do could be regarded as a danger to Australia so as to warrant legislation under the defence power. The end to be pursued—the object to be achieved, namely, winning a particular war—was determined by the Government and Parliament. The only question which the Court considered in any of the cases referred to was whether a law had a real connection with that end or object.
The Court acted upon the same basis as Lord Parker when he said in The Zamora:—"Those who are responsible for the national security must be the sole judges of what the national security requires. It would be obviously undesirable that such matters should be made the subject of evidence in a Court of law or otherwise discussed in public."
In my opinion the Court had no authority to review the entirely political decisions in 1914 that Germany was an enemy of the Commonwealth, or in 1939 and 1941 that Germany and Japan constituted a danger to the Commonwealth. No distinction can be drawn between defence against external attack and defence against internal attack, which is more insidious than direct external attack and in some respects, because it is often secret, more difficult to combat. If Parliament decides that there is an internal danger sufficiently serious to justify legislation, in my opinion the Court has no authority to overrule Parliament upon the ground that Parliament has made a mistake as to "the facts", or that, even if Parliament is right as to the facts, the facts show no real danger to Australia. The Government is responsible to Parliament and Parliament is responsible to the people for such decisions. If Parliament disagrees with the Government, or the people disagree with either the Government or the Parliament, our system of government provides a political means of changing the policy. The courts have nothing whatever to do with such decisions.
For the reasons which I have stated those who wish to challenge the truth of what Parliament has said in the recitals in this Act ​can do so in Parliament and before the people, but, in my opinion, not before any court.
It is not in my opinion a function of a court to determine whether legislation "goes too far" or "is incommensurate" or "is too drastic" or "is or is not reasonably necessary". The only function of a court when the validity of legislation is challenged as ultra vires the Commonwealth Constitution is to determine whether it is legislation "with respect to" a specified subject matter. If a law has a connection with a subject matter which is real, it is not the function of a court to ask whether the law was in fact "reasonably necessary". In the recent case of Bank of New South Wales v. The Commonwealth the Court had to consider the validity of the Banking Act 1947. Some sections of that Act provided penalties of £10,000 per day in the case of certain conduct, but no argument was heard (in a case which was fully argued) that the legislation "went too far". I agree with what Dixon J. said in Miller v. The Commonwealth:—"On a question of ultra vires, when the end is found to be relevant to the power and the means not inappropriate to achieve it, the inquiry stops. Whether less than was done might have been enough, whether more drastic provisions were made than the occasion demanded, whether the financial and economic conceptions inspiring the measure were theoretically sound, these are questions that are not in point. They are matters going to the manner of the exercise of the power, not to its ambit or extent."
This decision was given with respect to a law of a financial and economic character enacted in reliance upon the defence power. The principle stated is applicable in the case of all Commonwealth legislative powers. On this aspect of the case I refer to what Griffith C.J. said in Farey v. Burvett:—"It is then contended that the necessity and desirability of making the law are questions of fact to be adjudged by the Court. In answer to that argument I refer to another well-known passage in the judgment of Marshall C.J. in M'Culloch v. Maryland; also quoted by my brother Barton in the Jumbunna Case:—'Where the law is not prohibited, and is really calculated to effect any of the objects entrusted to the Government, to undertake here to inquire into the degree of its necessity, would be to pass the line which circumscribes the judicial department, and to tread on legislative ground.'"
​I respectfully agree with Griffith C.J., Barton J. and Marshall C.J. The contentions of the plaintiffs are, in my opinion, inconsistent with the principles stated in the passages which I have quoted.
The cases relied upon by the plaintiffs in their main argument accordingly, in my view, when their significance is properly appreciated, do not support that argument but, on the contrary, provide an effective reply to it. Legislation of the character of the Act now under consideration may be an abuse of power. For abuse of power the Parliament is answerable to the people. When the validity of a law is challenged in the courts, the courts are concerned only with the question whether the law was, as a matter of law, within the power of Parliament.
I summarize my conclusions upon this matter by saying that it is not for a court (either at the present stage of these cases, or at any later stage) to ask or to answer the question whether or not it agrees with the view of Parliament that the Australian Communist Party and organizations and persons associated with it are enemies of the country. It is for the Government and Parliament to determine that question, and they have already determined it. Whether they are right or wrong is a political matter upon which the electors, and not any court, can pass judgment. The only question for a court, therefore, is whether the provisions of the Act have a real connection with the activities and possibilities which Parliament has said in its opinion do exist and do create a danger to Australia.
9. In my opinion there is no difficulty in answering this question. Section 4, dissolving the Australian Communist Party, is the most obvious means of preventing its activity. It is equally obvious that the dissolution of the bodies mentioned in s. 5 (1) and the exclusion from the offices and employments mentioned in s. 10 of the persons referred to in s. 9 are directly and immediately connected with the suppression of that against which Parliament has decided the community is to be defended.
In order that the suppression of the associations in question should be effective the associations must obviously be deprived of their means of action, that is, of their property, and the fact that this deprivation is permanent in my opinion constitutes no sound objection to the legislation. It was put that this legislation was legislation to meet a temporary emergency. It is, in my opinion, wrong to base a judicial decision upon an assumption that, if there is an emergency, it is only temporary. I do not know how anybody knows that it is a temporary emergency. If ​the allegations in the recitals are true—as to which, as I have said, it is not for the Court to give any decision in these cases—the success of the Australian Communist Party would present Australia with a permanently altered system of government. This cannot seriously be denied. Why opposition to the Australian Communist Party and protection against subversive activities should be described as necessarily temporary in character I am unable to understand. Whether the alleged emergency is temporary or not may depend upon whether the policy of Parliament succeeds or fails. It is suggested that the property of unlawful associations ought to be held in trust for them so that later on they will be able to re-establish themselves and resume their operations. This is not like legislation for the winding up of a company. It was enacted to meet what Parliament has declared to be a national peril. The very object of the Act is to put the associations out of existence and to prevent their re-establishment. Such legislation is most directly connected with the defence of the community against the activities of these bodies. Many people, perhaps most people, particularly in our hitherto peaceful community, do not like such legislation. But that fact has nothing to do with its validity.
If, however, the Act ought to be regarded as legislation "introduced to meet a temporary emergency", I do not agree that it cannot be allowed to have permanent effects. Defence legislation which has been upheld because it was passed to meet a particular emergency which has proved to be temporary most obviously can have permanent results. An ex-serviceman who obtains a war-service home retains the home after the war is over. A traitor who assists an enemy during what may be a quite short war and has been shot remains dead after the war is over. It may be added that while a war is in progress no-one can say whether the war will be "temporary" or whether it will go on for many years.
10. The plaintiffs on many occasions referred to the old saying which is quoted in Chitty on The Prerogatives of the Crown (1820), p. 43—ubi bellum non est pax est. In my opinion the events of recent years require a reconsideration of this maxim. Actual fighting in the Second World War ended in 1945, but only few peace treaties have been made. The Court may, I think, allow itself to be sufficiently informed of affairs to be aware that any peace which now exists is uneasy and is considered by many informed people to be very precarious, and that many of the nations of the world (whether rightly or wrongly) are highly apprehensive. To say that the present condition of the world is one of "peace" ​may not unfairly be described as an unreal application of what has become an outmoded category. The phrases now used are "incidents", "affairs", "police action", "cold war". The Government and Parliament do not regard the present position as one of perfect peace and settled security, and they know more about it than the courts can possibly know as the result of considering legally admissible evidence. I have already referred to the authorities which show that neither the technical existence of war nor actual fighting is a condition of the exercise of the defence power. At the present time the Government of Australia is entitled, in my opinion, under the defence power to make preparations against the risk of war and to prepare the community for war by suppressing, in accordance with a law made by Parliament, bodies believed by Parliament to exist for the purpose (inter alia) of prejudicing the defence of the community and imperilling its safety. It is immaterial whether the courts agree with Parliament or not.
11. The result of what I have said is that, in my opinion, it was competent for Parliament to identify communist organizations and associated persons as internal enemies of the Commonwealth and to legislate for the purpose of preventing the continuance of the existence of such organizations and for suppressing their activities and forfeiting their property. Thus (subject to some other arguments still to be considered) I am of opinion that s. 4, dissolving the Australian Communist Party, is valid.
I am further of opinion that ss. 5 and 9 are valid by reason of the provisions contained in sub-s. (1) of those sections. Sub-section (1) in each case states that the section applies to bodies of persons or to individuals who have certain communist associations. Sub-section (2) then limits the application of the sections in respect of bodies of persons or individual persons to such of those bodies or persons as the Governor-General has declared in pursuance of sub-s. (2) of the sections to be acting in a manner prejudicial to the defence of the Commonwealth or the maintenance of the Constitution. In my opinion it is not necessary to go to sub-ss. (2) of ss. 5 and 9 to provide a constitutional basis for these provisions. These sub-sections operate by restricting the operation of the Act within a smaller sphere than would have been the case if they had been absent. The legislation, in particular ss. 4, 5(1) and 9(1), upon the view which I have stated, is brought within the defence power and s. 51(xxxix.) of the Constitution by the Parliamentary condemnation of communism. When the sections are so construed the fact that the operation of ss. 5 and 9 depends in part upon the ​opinion of the Governor-General cannot be an objection to the validity of the sections. The opinion of the Governor-General upon any matter may validly be made a condition of the operation of the legislation. Section 5 (2), for example, might have provided for a proclamation of the Governor-General based upon any matter whatever; for example, provision might have been made that the Governor-General should not declare an organization under the section unless it had a certain proportion of foreign-born members or unless it had existed for ten years or for twenty years or unless the Chief of the General Staff or a State Commissioner of Police made a report to him on the matter.
12. Other arguments raised other points with respect to ss. 5 (2) and 9(2). What is said as to s. 5 (2) applies also to s. 9 (2). The only difference between the sub-sections is that under s. 5 (2) the declaration made is simply that an association is an unlawful association, whereas under s. 9 (2) the Governor-General is authorized to "make a declaration accordingly"—i.e., that he is satisfied as to the matters mentioned in the sub-section. I quote s. 5 (2) again:—"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." It was argued for the plaintiffs that all the matters mentioned in this sub-section are remitted to the unexaminable opinion of the Governor-General except in the case of the first element, namely, whether a body of persons was a body to which the section applies, in respect of which element there is provision for an application to a court. But the plaintiffs contended that the section left it to the Governor-General to determine conclusively whether 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, &c. It was argued that this left it to the Governor-General to determine what was the defence of the Commonwealth and what was the execution or maintenance of the Constitution, &c., and also to determine whether the continued existence of the body would be prejudicial to such matters. Similarly under s. 9 (2) the plaintiffs contended that the Governor-General determined finally what activities the person was engaged in and whether those activities were prejudicial to what the Governor-General ​considered was the defence of the Commonwealth or the execution or maintenance of the Constitution, &c. The plaintiffs relied upon what has been said on this matter in a number of authorities. It is sufficient perhaps to refer to Reid v. Sinderberry.
The defendants did not dispute the rule laid down in these decisions, but contended that the opinion of the Governor-General was examinable in part. It was said to be examinable in relation to the question whether what was considered by the Governor-General to be defence, or execution or maintenance of the Constitution was really defence, &c. This contention meant that a court would be able to consider whether the Governor-General had a correct conception of the meaning of defence and the execution, &c., of the Constitution. It was said that if this element in the Governor-General's opinion were shown to be correct a sufficient connection with the subject matter of power was established. I did not fully appreciate this argument. The question whether the Governor-General had a proper conception of defence, &c., could arise only in a particular case. If he were shown to be wrong, it would be the declaration, and not the Act, which, upon this view, would be invalid.
In my opinion the contention of the plaintiffs as to the construction of s. 5 (2) and s. 9 (2) is correct. On the words of the sub-sections it is impossible to draw a distinction between any of the matters (other than the first element) as to which it is required that the Governor-General shall be satisfied. There is no ground for distinguishing in the case, for example, of s. 9 (2), between the examinability of his opinion as to what is defence and his opinion as to whether a person is or was a communist or whether he has been engaged in particular activities or whether those activities are prejudicial to defence. From a practical point of view it would be very difficult indeed to give effect to the contention of the defendants. It was not suggested that any means existed for discovering what the Governor-General's conception of defence or of the maintenance of the Constitution, &c., was.
Thus I agree with the plaintiffs' argument upon the construction of ss. 5 (2) and 9 (2) in this respect, but this conclusion does not necessarily provide a reply to the argument that the opinion of the Governor-General (which is really the opinion of the Government of the day, because the Governor-General acts upon the advice of his Ministers—see s. 9 (3)) cannot in itself provide sufficient support for the provisions contained in ss. 5 and 9. I deal with this matter in par. 16 hereafter.
​13. Argument was heard as to whether the Governor-General had to be satisfied under both sections, and make a declaration under s. 9 (2) specifically, as to matters affecting defence and also as to matters affecting the maintenance of the Constitution, &c., or whether it would be sufficient for him to be satisfied as to one only and (under s. 9 (2)) to "declare accordingly In my opinion this question of construction cannot affect a decision as to the validity of the Act upon the view which I take of the
operation of s. 5 (1) and (2) and s. 9 (1) and (2). Whether a particular declaration is valid or not is a question which arises only after a declaration has been made. If the question should arise it should, in my opinion, be answered by simply following the decision in Welsbach Light Co. of Australasia Ltd. v. The Commonwealth.
14. The plaintiffs relied very greatly upon the decision in Ex parte Walsh and Johnson as a decision that no legislation could depend for its validity upon any opinion, except that of a court, to establish a connection with a subject matter of Federal legislative power. But if sub-ss. (2) of ss. 5 and 9 are read in the manner which I suggest, that is as merely providing a condition of
the application of other operative provisions which are themselves valid, the objection based upon Ex parte Walsh and Johnson ceases to have any application. In Ex parte Walsh and Johnson the Court expressly approved the decision in R. v. Macfarlane; Ex parte O'Flanagan and O'Kelly. There the Court held that s. 8A of the Immigration Act 1901–1920 was was valid. The operation of that section (authorizing deportation) depended upon "the Minister being satisfied "that within three years after the arrival in Australia of a person who was not born in Australia that person was a person who advocated the overthrow by force or violence of the established government of the Commonwealth or of any State or of any other civilized country, &c. Thus the application of the section depended upon the opinion of the Minister. It was held that the law was a law with respect to immigration and was valid. In Ex parte Walsh and Johnson the Court had to consider the validity of s. 8AA in the Immigration Act 1901–1925. That section was held to be valid as a law with respect to immigration, but not as a law with respect to other matters. The validity of sub-s. (1) was not challenged, although the case was most exhaustively argued. Sub-section (1) of s. 8AA was in the following terms:—"If at any time the Governor-General is of opinion that ​there exists in Australia a serious industrial disturbance prejudicing or threatening the peace, order or good government of the Commonwealth, he may make a Proclamation to that effect …" The application of the rest of the Act depended upon such a a proclamation being in force. It will be observed that the proclamation required was in most general terms. It referred to the "peace, order or good government of the Commonwealth" and not to any specific power. It was not suggested that such a proclamation could not be a condition of the operation of legislation otherwise within power. Section 8AA(2) of the Act provided that when any such proclamation was in force the Minister, if he were satisfied as to any of various matters - obstruction of transport of goods or passengers, provision of service by departments or public authorities of the Commonwealth, &c., might call upon a person to show cause why he should not be deported from the Commonwealth. This section was held to be valid in its application to persons who really were immigrants. It was not held that the fact that its operation depended upon the opinion of a Minister as to transport or the provision of services by the Commonwealth, &c., prevented the Act from being valid. A distinction between this case and the case of Ex parte Walsh and Johnson is that in that case it was considered that the alleged law prohibited no act, enjoined no duty, created no offence, imposed no sanction for disobedience to any command and prescribed no standard or rule of conduct (per Knox C.J.). This Act does prohibit acts, create duties and offences, provide for sanctions and prescribe rules of conduct. It prohibits the continued activity of certain associations—it forfeits property; it creates disqualifications for office; and it creates offences with penalties. All of these matters relate to defence if Parliament has, as the Act assumes, the constitutional right to decide against what defence should be provided.
15. The argument for the defendants sought to support s. 4, and consequentially ss. 5 and 9, upon the basis of alleged facts of which (it was said) the Court should take judicial notice. These allegations of fact were made by Mr. Barwick in the course of argument and were challenged by the plaintiffs. They were stated in propositions lettered from (a) to (t). They referred to international tension and to tension with Russia. They included allegations that certain States, including China, were satellite States of Russia, that forces against which Australia was fighting in Korea were communist-supported forces, that an extension of that conflict was feared, that communism was a world movement, was supra​national in character, and that communists sympathized with Soviet Russia, the great communist State. In my opinion the matters referred to in these statements are matters which a government and parliament may properly consider in reaching a decision upon policy, though some of them would be incapable of proof by any legal evidence. None of them, in my opinion, are matters of which the Court should take judicial notice, except perhaps the general statement that the world is in a state of uneasy apprehension and that war preparations (always stated to be defensive) are going on throughout the world. The Court may be allowed to know as much as that, but I can see no justification for the Court taking judicial notice of the other disputed and disputable propositions which Mr. Barwick has submitted. The Court can take judicial notice of notorious facts, and one thing which is notorious about what Mr. Barwick has submitted is that the allegations are matters of vigorous dispute.
16. I have stated my opinion that the validity of ss. 4, 5 and 9 and the associated provisions may be established without relying upon the declaration of the opinion of the Governor-General, for which provision is made in ss. 5(2) and 9(2). But, apart from what I have already said as to ss. 5(1) and 9(1) being within power, I do not agree that an opinion of an executive authority is irrelevant when the question under consideration is that of connection with defence or with the maintenance of the Constitution. Operations against an enemy (external or internal) are conducted by the Executive Government under the control of Parliament and not by courts. They require action. They often require prompt and decisive action. What action should be taken must frequently be left to the judgment of a responsible person. It is true, as has been held in this Court, that Parliament cannot extend its powers with reference to trade and commerce by passing laws about something which is not trade and commerce, though, in the opinion of a Minister, it is trade and commerce, and that Parliament cannot by enactment make a man an immigrant if he is not an immigrant. But in the case of defence the opinion of those responsible for defence may validly be made by Parliament the crucial matter in determining under a law whether particular action should be taken to protect the community. Thus, in Lloyd v. Wallach, the Court considered the validity of a provision in a regulation that where the Minister for Defence "has reason to believe that any naturalized person is disaffected or disloyal, he may, by warrant under his hand, order him to be detained in ​military custody in such place as he thinks fit during the continuance t was held that the regulation of the present state of war". It was held that the regulation was valid and that the Minister could not be called upon as a witness to state the grounds of his belief. Griffith C.J. said:—"Having regard to the nature and object of the power conferred upon the Minister, and the circumstances under which it is to be exercised, I think that his belief is the sole condition of his authority, and that he is the sole judge of the sufficiency of the materials on which he forms it" His Honour added:—"Having regard to the nature of the power and the circumstances under which it is to be exercised, it would, in my opinion, be contrary to public policy, and, indeed, inconsistent with the character of the power itself, to allow any judicial inquiry on the subject in these proceedings.". Isaacs J. agreed, saying that the Minister is "the sole judge of what circumstances are material and sufficient to base his mental conclusion upon, and no one can challenge their materiality or sufficiency or the reasonableness of the belief founded upon them. He is presumed to act not arbitrarily nor capriciously, but to inform his mind in any manner he considers proper". This decision was followed and applied in Ex parte Walsh and in Little v. The Commonwealth by Dixon J. The latter was also a case of internment, and his Honour said that he did not think that the order was examinable upon any ground affecting the Minister's opinion short of bad faith. In Welsbach Light Co. of Australasia Ltd. v. The Commonwealth the Court considered the question of the validity of a Trading with the Enemy Act which applied to companies which became identifiable only by means of a proclamation of the Governor-General and a declaration of the Attorney-General that a company was in his opinion managed or controlled, &c., by persons of enemy nationality. The Act was held to be valid. In all of these cases it was the opinion of the Governor-General or of a Minister as to the relation between a person and the defence of the Commonwealth in a particular war, and nothing else, which provided the constitutional foundation for the law. These cases must, in my opinion, be overruled if the arguments for the plaintiffs on the point now under consideration are accepted. Otherwise they become unintelligible exceptions to a supposed universal rule that the opinion of a Government or a Minister or a Parliament—on either fact or law—cannot provide any link between a law and a subject of legislative power.
​Such exceptions cannot be made intelligible by saying that in "times of crisis", when there is "an enemy in our midst", much must be left to the discretion of other than judicial authorities. The doctrine for which the plaintiffs contend means that the courts, and not "merely" the Government and the Parliament of the country, should be satisfied that there really is a crisis of sufficient significance to justify the law—that there really is an enemy in our midst. A court, in reaching a conclusion upon such an issue, should, the plaintiffs contend, take into account both facts of which the Court can take judicial notice and facts duly proved by admissible evidence. The defendants, on the other hand, argue that the Court should be limited, in relation to this issue, to the consideration of facts of which it can take judicial notice. In my opinion, as already stated, the problem as to whether there is, or is likely to be, a crisis or position of danger requiring the exercise of the defence power or the power to protect constitutional government is a question which Parliament may properly determine for itself. If it is held that it can be determined only by a court, I have difficulty in seeing how a conclusion could be based only upon facts of which the Court could properly take judicial notice. A court could not take judicial notice of a "crisis" before the crisis had happened. A court could not take judicial notice even of widespread espionage and sabotage, most of which would in any case be secretly organized. A court could not determine, by the application of any doctrine of judicial notice, whether a particular interference or a series of interferences with production in vital industries was really industrial in character (as some would assert) or really political and subversive (as others would allege). The limitation of the principle of judicial notice to facts which are notorious—which are so clear that no evidence is required to establish them—appears to me to prevent a court from ever reaching a conclusion based only upon such facts with respect to an issue of actual or potential public danger calling for the exercise of the legislative powers now under consideration. On the other hand, if evidence is admissible, as the plaintiffs contend, to prove or to disprove the actual or possible existence of such a danger, the validity of Commonwealth laws will be decided upon the basis of the evidence which litigants choose to submit in particular cases. Upon the evidence called in one case, the law would be held to be valid. Upon the evidence called in another case the same law would be held to be invalid. According to the plaintiffs' arguments, if the Court, after hearing such evidence as was brought before it, thought that the suggested crisis was imaginary, or that ​it was not sufficiently serious to justify particular legislation, it should hold that the law was invalid, notwithstanding the contrary opinion of Parliament upon both points.
This conclusion cannot be escaped (whether the Court is limited to the consideration of facts judicially known or not) by reference to such Ciceronian apophthegms as "Silent enim leges inter arma" and "Salus populi suprema est lex". Such pithy proverbs represent not an application, but a negation, of law. In my opinion the Constitution of the Commonwealth has not been so imperfectly framed that, in what the Government and Parliament consider a time of crisis when the national existence is at stake, they can act promptly and effectively, by means of executive action and legislation, only by breaking the law. Upon my understanding of their functions and of the nature of the defence power, they can act within the law to meet the crisis without being subject to the risk of being told by a court that they were acting illegally. In such a case, the Government and Parliament are not left by the Constitution to action under a cloud of legal doubt. It might well happen that the crisis would be over—one way or the other—before the Court had heard the evidence (which could easily be made very lengthy) upon the question whether there was really a crisis or not. In my opinion the Constitution does not create such perilous situations.
17. The case of Ex parte Walsh and Johnson is not, in my opinion, inconsistent with the last-mentioned decisions. That case in its relevant aspects was a decision with respect to the immigration power, the trade and commerce power, the power to legislate with respect to Commonwealth departments, and with respect to the interpretation of a general phrase referring to all Commonwealth legislative powers, whether they had been actually exercised or not. It was there held that the Minister's opinion that a man was an immigrant could not make him an immigrant if he really was not an immigrant and that similarly the Minister's opinion that certain matters fell within the subject of trade and commerce would not bring them within the subject if in fact they did not fall within it—and so also as to the other subjects mentioned. But, for reasons which I have already stated, the position is quite different in the case of the defence power. The Government of the day decides matters of defence policy subject to parliamentary control and, in so doing, it determines what the people are to be defended against. Such a decision is not a finding of fact or an opinion upon law. It is a decision of policy as to what ought to be done in the interests of ​the country. Often action must be taken upon the opinion of a responsible authority - sometimes upon suspicion and not upon proved fact. When, for example, a Minister, under the Acts mentioned in the cases referred to, or the Governor-General, under the Act now under consideration, declares that a person is acting prejudicially to the defence of the Commonwealth, he is engaging in the discharge of a function which is committed by the Parliament to the Executive Government, and his opinion in itself may legitimately bring the law within the constitutional power.
It was said in the House of Lords by Lord Atkinson in R. v. Halliday:—"As preventive justice proceeds upon the principle that a person should be restrained from doing something which, if free and unfettered, it is reasonably probable he would do, it must necessarily proceed in all cases, to some extent, on suspicion or anticipation as distinct from proof." His Lordship went on to say that it was not necessary to wait until a person performed an act by which the public safety and the defence of the realm might be prejudicially affected, and that after the Minister received a recommendation with respect to a particular person, and came to the conclusion that by reason of his hostile origin or association it was expedient for securing the public safety and the defence of the realm that he should be interned, it would be "as mischievous as absurd to require that the Minister, though fully warned, should remain quiescent and look on helplessly, waiting for the time when one of the crimes mentioned in (the regulations) should be committed, and the perpetrator, if caught, and if sufficient proof were forthcoming, should be brought to justice and punished."
In my opinion the arguments for the plaintiffs which I have been considering do not show that any of the provisions of the Act are invalid.
18. It is now necessary to refer to other arguments adduced on behalf of the plaintiffs or on behalf of some of them. It was argued that no Federal law could permanently suppress a voluntary association. It was conceded that individuals might be punished for subversive or traitorous activities, but it was said that Parliament itself could not suppress any voluntary association of people associated for any objects. This contention was supported by the argument that defence legislation, assumed to be valid only in respect of what was called "a temporary emergency", could not be allowed to have "permanent" effects. I have already stated my opinion as to this proposition. The plaintiffs were able to concede, for the purposes of the present case, that a court could, ​if authority were given to it under a statute, perhaps suppress a voluntary association, but contended that Parliament could not. Thus, if Parliament had said that, if a court were satisfied of the existence of the facts alleged in recitals Nos. 4 to 8, the Court might dissolve the Australian Communist Party, such a law might possibly be valid. As this Act is not such a law the concession had no significance. I therefore only record my dissent from the frequent statements in the course of argument that only the opinion of a court as to a fact and that only the opinion of a court on a matter of law can produce legal consequences. I refer to what I say hereafter on the subject of judicial power.
19. It was argued that political parties and trade unions, because they are political parties and trade unions, enjoy some form of exemption from law—though the proposition was not put in that precise form. The Court heard many protests against the Act based on the fact that it applied to a political party and to trade unions. It was put that, even if such organizations engaged in subversive activities, they also had innocent activities, and that Parliament could not by closing them down prohibit their innocent activities. A subversive or traitorous association would naturally keep its significant activities secret until it was strong enough to declare them, and in the meantime would pose as an innocent and well-meaning political party or cultural society or something like that, simply and sincerely striving for a better world. The fact that such bodies may have innocent activities as well as activities of the character described in the statute is not, any more than in the case of individuals, a ground for excluding the application of laws designed either to prevent or to punish unlawful activities. A burglar does not secure exemption from the law because he is a good father.
It is further contended that the legislation affects civil rights of union officers and others by terminating contracts of employment. This is certainly the case, but I am unable to understand why it should be thought to be an objection to the validity of legislation. Most legislation affects civil rights. If such an obvious proposition requires support from authority it is sufficient to refer to West v. Gwynne here Buckley L.J. said: "Most Acts of Parliament, in fact, do interfere with existing rights". There is no constitutional ground whatever for holding that Federal legislation with respect to matters within Federal power cannot affect civil rights, proprietary and others.
​It was said that the legislation interfered with the "fundamental right" of trades unions to choose their own officers. It certainly places limitations upon the right which the law has hitherto allowed to trades unions to choose their own officers. This right, however, exists only by reason of law and depends entirely upon law. It is subject to control by laws made by Parliaments which have power with respect to the matters to which the laws relate.
Similar questions have arisen in the United States of America. Some of them were considered in American Communications Association v. Douds In that case the Supreme Court upheld a statute which provided that, as a condition of a union utilizing the provisions of a Labor Management Relations Act 1947, each of its officers should file an affidavit stating that he was not a member of the Communist Party or affiliated with it and that he did not believe in, was not a member of or supported any organization that believed in or taught the overthrow of the United States Government by force or by any illegal or unconstitutional methods. Much of the reasoning in the judgments relates to provisions in the Constitution of the United States which are not present in the Australian Constitution. Apart from these matters, the case deals with several matters which have been discussed in the case now under consideration. The statute was passed under the trade and commerce power. It was held that Congress had power to remove obstructions to inter-State commerce consisting in "political strikes", namely "strikes instigated by communists and others proscribed by the statute who infiltrate union organizations not to support and further trade union objectives, including the advocacy of change by democratic methods, but to make them a device by which commerce and industry might be disrupted when the dictates of political policy require such action". The Supreme Court further declared that notwithstanding the express protection given to freedom of speech by the Constitution of the United States, "those who, so Congress had found, would subvert the public interest, cannot escape all regulation because, at the same time, they carry on legitimate political activities". It was also held that Congress and not the courts was primarily charged with the determination of the need for regulation of activities affecting inter-State commerce. It was objected that the law was invalid because it would bring about the removal of union officers who refused to take the prescribed oath. This objection was not upheld. Congress had legislated to protect unions from domination and control by employers. Without expressing any agreement with the general ​judgment of Jackson J., I quote what he said upon this particular matter:—"I cannot believe that Congress has less power to protect a labor union from Communist Party domination than it has from employer domination". These matters are related not only to foreign and inter-State trade and commerce, but also to defence and the maintenance of the Constitution. In my opinion the Commonwealth Parliament has the same power to protect unions in Australia as in America. Opinions may differ as to the wisdom or desirability of such protection (and it has not been welcomed by the plaintiffs), but that fact has nothing to do with the validity of the legislation.
20. The case was argued by some counsel as if the Commonwealth Constitution contained provisions corresponding to those contained in certain other constitutions. In the Constitution of the United States of America there are provisions preventing the enactment of laws impairing the obligation of contracts or depriving persons of life, liberty or property without due process of law. In the Canadian Constitution "property and civil rights within the province" is a subject as to which the provincial legislatures are declared to have exclusive power (British North America Act 1867, s. 92). None of these provisions appear in the Constitution of the Commonwealth, and in my opinion there is no basis whatever for the attempt to create such provisions by arguments based upon the judicial power and s. 92 of the Constitution and the natural dislike of suppressive laws. The Act does affect civil rights. It does affect proprietary rights. It does affect contracts of employment. But there is no reason why it should not do all of these things if it is legislation with respect to a subject upon which the Commonwealth Parliament has power to make laws—an aspect of the case with which I have already dealt.
21. It was argued that no Federal legislation could abolish a body which had Federal political objectives or State political objectives. It could not suppress a body in the former case because, it was contended, the Federal Constitution, which provided for voting by electors, impliedly provided that there should be political parties and therefore impliedly provided that the electors should have the constitutional right to vote for any body of persons which was a political party and that therefore the Constitution impliedly provided for the existence of any political parties which any persons chose to form and, accordingly, that the Commonwealth Parliament had no power to suppress any party. It was argued that if a political party had State objectives as well as Federal objectives, if the Commonwealth Parliament suppressed the party altogether ​there was an interference with the constitutions of the States. It was conceded that the constitutions of the States, like the Constitution of the Commonwealth, say nothing about political parties. It is also true that the Commonwealth Constitution gives a plenary power to the Commonwealth Parliament to legislate upon the subjects committed to it. But it was said that the State constitutions, like the Commonwealth Constitution, assumed the existence of political parties and that therefore all political parties can continue to exist notwithstanding any legislation directed against them. It is obvious that the objections to Federal legislation directed against a body which took part in State politics would equally apply to State legislation directed against a body which elected to take part in Federal politics. The conclusion of these arguments is that bodies, however traitorous and subversive, are entitled to continue to exist if they are political parties though individual persons could be punished if they were prosecuted for and convicted of offences.
It is difficult to deal with an argument so insubstantial. The Commonwealth Parliament has full power to make laws with respect to traitorous and subversive activities of persons, whether they act individually or in association. If that be so, the fact that the bodies have other characteristics - political, athletic, artistic, literary &c.—cannot possibly exclude the application of such laws.
22. Section 92. The plaintiffs submitted an argument based on s. 92 of the Commonwealth Constitution. The Australian Communist Party and the industrial organizations to which the Act refers, like most other bodies of any consequence in Australia have inter-State activities and write letters from one State to another. Also union officers travel from State to State in pursuance of their duties. It is argued that they are exempt from any law which inhibits those activities.
The Act says nothing about trade, commerce or intercourse. When the Act operates it will restrict various activities, including inter-State activities, of the persons to whom it applies. So also does an Act which provides for imprisonment for any offence. So also does any Act which requires persons to take out licences or to possess qualifications before they can follow certain occupations in a particular State. So do quarantine Acts. So do scores of other Acts. In all such cases the relation to inter-State trade and commerce is "remote" within the meaning of the Banking Case: The Commonwealth v. Bank of New South Wales In that case the Privy Council held that s. 92 did not prevent the exclusion ​from passage across the frontier of a State of creatures or things calculated to injure its citizens. Thus the transit inter-State of diseased cattle and noxious drugs could be prevented by law consistently with s. 92. There can be nothing more injurious and dangerous than traitorous and subversive activities. If, in order to stop them, certain action is thought necessary by Parliament, if it is otherwise within power it is no objection to such action that it has the effect of preventing all those activities and other activities, whether inter-State or intra-State.
23. Acquisition of Property. The Act forfeits the property of the Australian Communist Party and provides for the forfeiture of the property of the associations declared to be unlawful. Section 51 (xxxi.) of the Constitution provides that the Parliament may make laws for the acquisition of property upon just terms. It has been held that this is the only power of the Parliament to legislate for the acquisition of property (Johnston Fear & Kingham & The Offset Printing Co. Pty. Ltd. v. The Commonwealth). The Act forfeits the property because the party or the association engages in or is connected with activities of the kind described in the recitals, that is, activities which are considered by Parliament to be traitorous or subversive. If this is to be regarded as a law "for the acquisition of property" I fail to see anything unjust in Parliament forfeiting the property of an association which in the opinion of Parliament possesses those characteristics. This legislation is seen to be very mild when it is compared with the common form of legislation in many countries with respect to espionage, sabotage and the like activities directed against the state, the penalty for which is often death.
24. Judicial Power. It is argued on behalf of the plaintiffs that the Act contravenes s. 71 of the Constitution, which provides that the judicial power of the Commonwealth shall be vested in courts. It was said that whenever any decision as to either a fact or a law produces a legal consequence that decision must be made by a court. Reference was made to Rola Co. (Australia) Pty. Ltd. v. The Commonwealth and other cases. Upon this ground s. 4, dissolving the Australian Communist Party, was attacked. It was argued that the Australian Communist Party could be dissolved only by a court because the dissolution affected the rights of persons. Section 5 and s. 9 were also attacked upon this ground because it was said that the opinion of the Governor-General could not be made an element in determining any matter affecting the rights, "civil or proprietary", of any person. The contention of ​the plaintiffs really is that every determination of a question of law and every determination of fact where the determination produces any legal consequences is a matter for a court. This proposition, interpreted and applied universally and with precision, would not only prohibit much quite ordinary legislation which affects civil rights, but would also mean that no right or duty could be made to depend upon a decision of any administrative officer. The acceptance of such a proposition would make administration impracticable. Every day administrative officers apply and interpret laws and make decisions as to facts. The position stands as they determine it, with the results which follow according to law from their determination. The position validly so stands unless for some reason it is set aside by superior authority or is determined by a court to have been made without authority. If a decision as to the meaning of a statute or as to the existence of facts (many hundreds of which are made every day in the ordinary course of administration) is an exercise of judicial power then such decisions of administrative officers should count for nothing, independently altogether of the result of any subsequent challenge in a court. They could not be legitimated by subsequent judicial decision that they happened to be right. They would still, according to the argument of the plaintiffs, be an unauthorized exercise of judicial power and therefore entirely invalid.
An effective answer to the plaintiffs' arguments on this aspect of the case is in my opinion to be found in British Imperial Oil Co. Ltd. v. Federal Commissioner of Taxation, where the question of the nature of judicial power was fully considered. Isaacs J. said that "some matters so clearly and distinctively appertain to one branch of government as to be incapable of exercise by another. An appropriation of public money, a trial for murder, and the appointment of a Federal Judge are instances. Other matters may be subject to no a priori exclusive delimitation, but may be capable of assignment by Parliament in its discretion to more than one branch of government". The case itself upheld the validity of decisions of a Commissioner for Income Tax and of a Board of Review upon questions of fact and of law in determining liability to income tax. His Honour gave other examples from the Trade Marks Act, the Patents Act, the Commonwealth Public Service Act and the Commonwealth Bank Act of persons empowered to exercise "the functions of deciding between contestants questions of fact and discretion and of doing so with the effect in some way of ​binding the rights of one or more of the contestants". The judgment of Isaacs J. was approved upon appeal to the Privy Council (Shell Co. of Australia Ltd. v. Federal Commissioner of Taxation). In the High Court Higgins J. put the matter very succinctly when he said:—"The fact that a policeman has to consider the law as well as the facts in exercising his power to arrest does not make him a judicial officer".
The Parliament might have remitted to a court, if it had thought proper to do so, the decision of the question whether a body of persons was subversive or traitorous. But, as I have said, it was not bound to do so. It is not difficult to think of reasons connected with the nature of the subject matter of the legislation which may have been regarded as relevant by Parliament as reasons for legislating directly, without prescribing the intervention of a court. Parliament may have thought that prompt action was necessary. It may have been influenced by the obvious circumstance that a propagandist subversive body believed to be working in conjunction with similar bodies in other countries could ask for nothing better than an opportunity to give evidence and produce argument in court upon such matters as have been tabulated under headings (a) to (f) in par. 6 of this judgment. It is not necessary, in order to hold that the legislation is valid, that a court should agree with these or any other suggested reasons for the particular form in which Parliament has framed the law, if the law is within power.
25. The Court has been invited to treat this Act as if it were an Act of Attainder or an Act of Pains and Penalties. Such legislation is always unpopular with those against whom it is directed and in general is detested. An Act of Attainder imposed the penalty of death by legislative action and an Act of Pains and Penalties inflicted a less penalty, again by legislative action. The Parliament of Great Britain adopted a practice of hearing the person with whom the bill dealt, but the result was secured by legislation and not by judicial action. In the Constitution of the United States there is a prohibition of such legislation. Article 1, s. 9, provides "No Bill of Attainder or ex post facto law shall be passed". There is no such provision in the Commonwealth Constitution and it has expressly been decided in the High Court in R. v. Kidman that ex post facto laws may be passed. But the present Act is in no sense an Act of Attainder or of Pains and Penalties. It does not convict or purport to convict any person of any act, nor does the Act itself subject him to any penalty. He ​may be convicted of an offence against the Act if he is prosecuted before a court, but the Act itself does not produce any of the results of an Act of Attainder or of an Act of Pains and Penalties.
26. Section 10 of the Act relates to the disqualification of declared persons for employment by the Commonwealth or an authority of the Commonwealth and as an officer of an industrial organization engaged in a vital industry: see s. 10 (3). From what I have already said it follows that in my opinion s. 10 is valid. But even if other provisions of the Act are held to be invalid, such a conclusion does not have any bearing upon the full power of the Commonwealth Parliament to make laws with respect to employment by the Commonwealth and to provide by statute, as it thinks proper, for qualifications and disqualifications for the holding of office in industrial organizations registered under the Commonwealth Conciliation and Arbitration Act 1904-1949. The Acts Interpretation Act 1901-1948, s. 15A, provides in substance that even if part of a statute is held to be invalid the rest of the statute shall be held to operate as far as possible. Even if the rest of the Act is invalid, s. 10 may in my opinion properly be held to be valid as a law applying to persons in or seeking Commonwealth employment and to officers of registered industrial organizations. Section 5 of the Act distinguishes between such organizations which are registered and unregistered organizations. But in one respect s. 10 depends upon ss. 4 and 9. If s. 4 is invalid persons described in s. 9 (1) (a) will not be subject to s. 10, because the application of s. 9 (1) (a) depends upon the Australian Communist Party having been dissolved by the Act (i.e. by s. 4) upon a certain date.
27. Section 27 of the Act provides that when the Governor-General is satisfied that 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 declaration accordingly and that thereupon the Act shall be deemed to have been repealed. Sections 5 (2) and 9 (2) provide that before declarations are made under the Act the Governor-General must be satisfied with respect to prejudice to either of the two matters mentioned—defence of the Commonwealth or maintenance of the Constitution &c. The condition would be fulfilled if he were satisfied as to either one or both. The plaintiffs contended that these provisions show that the intention of Parliament was that the Act should not operate unless it could be supported as legislation with respect to both of the subjects mentioned, and that therefore if it could not be supported under the latter head it ceased to ​operate as a defence measure, and vice versa, and therefore in either case ceased to operate altogether. In my opinion these sections have the contrary effect. Sections 5 (2) and 9 (2) provide that the Governor-General may make a declaration if he is satisfied as to the character of an association or of a person in relation to either of two matters. If therefore he is satisfied as to one of them the sections are to operate. Section 27 provides that when the operation of the Act is in the opinion of the Governor-General no longer necessary in relation to either of those subjects the Act is repealed. It appears to me that the intention of Parliament is quite clear that the Act shall operate so long as in the judgment of the Governor-General it is necessary for either purpose. This question, however, is unimportant if the Act is valid in all its terms in relation to both of the subjects mentioned, and in my opinion the Act is so valid. Accordingly it is unnecessary for me to consider whether any difficulty in maintaining the validity of the Act would arise if for some reason it were held that these sections prevented any severability of the provisions of the Act so as to hold them valid in relation to one subject but not in relation to the other subject.
It was argued that these three sections deal with two subjects. The Governor-General might make a declaration upon the basis of one of them, subject A, and, if the Act were valid only in relation to subject B, the Act would be misapplied. Upon the view which I have taken of the Act it is unnecessary to consider this argument, but if the Act is construed (as I think it should be construed) upon an assumption of honesty in the Governor-General such a question cannot arise.
Finally, I do not see that a provision that a statute is to be deemed to be repealed in a certain event, whatever that event may be, can in any way affect the question of the initial and continuing validity of the statute until such repeal takes place. The time for repeal of a statute may be fixed by reference to any event whatever. The nature of that event cannot in my opinion possibly affect the question whether the statute was validly enacted.
28. For the reasons which I have stated I answer all the questions in the case—No.
* ↑ (1942) 66 C.L.R. 488, at pp 506, 507, 509.
* ↑ (1943) 67 C.L.R. 413.
* ↑ (1948) 76 C.L.R. 1, at p. 186.
* ↑ (1925) 37 C.L.R. 36
* ↑ (1942) 65 C.L.R. 373, at p. 432.
* ↑ (1944) 68 C.L.R. 504.
* ↑ (1948) 76 C.L.R. 1.
* ↑ (1945) 71 C.L.R. 161.
* ↑ (1946) 73 C.L.R. 157.
* ↑ (1946) 73 C.L.R. 213.
* ↑ (1949) 78 C.L.R. 116.
* ↑ (1943) 67 C.L.R., at p. 132.
* ↑ (1949) 79 C.L.R. 101.
* ↑ (1949) 79 C.L.R. 121.
* ↑ (1916) 2 AC, at p. 107.
* ↑ (1948) 76 C.L.R. 1.
* ↑ (1946) 73 C.L.R. 187, at p. 203.
* ↑ (1916) 21 C.L.R. 433, at p. 443.
* ↑ (1819) 4 Wheat. 316, at p. 423 [4 Law. Ed. 579].
* ↑ (1908) 6 C.L.R. 309, at p. 345.
* ↑ (1944) 68 C.L.R. 504.
* ↑ (1916) 22 C.L.R. 268.
* ↑ (1925) 37 C.L.R. 36.
* ↑ (1923) 32 C.L.R. 518
* ↑ (1925) 37 C.L.R. 36
* ↑ (1925) 37 C.L.R., at p. 69.
* ↑ (1915) 20 C.L.R. 299.
* ↑ (1915) 20 C.L.R., at p. 304.
* ↑ (1915) 20 C.L.R., at pp. 304, 305.
* ↑ (1915) 20 C.L.R., at pp. 308, 309.
* ↑ (1942) A.L.R. 359.
* ↑ (1947) 75 C.L.R. 94.
* ↑ (1916) 22 C.L.R. 268.
* ↑ (1925) 37 C.L.R. 36.
* ↑ (1917) A.C. 260, at p. 275.
* ↑ (1917) A.C., at p. 276.
* ↑ (1911) 2 Ch. 1, at p. 12.
* ↑ (1950) 339 U.S. 382 [94 Law. Ed. 925].
* ↑ (1950) 339 US, at p. 433 [94 Law. Ed., at p. 962).
* ↑ (1950) A.C. 235; 79 C.L.R. 497.
* ↑ (1943) 67 C.L.R. 314.
* ↑ (1944) 69 CLR 185.
* ↑ (1926) 38 C.L.R. 153.
* ↑ (1926) 38 C.L.R., at p. 178.
* ↑ (1926) 38 C.L.R., at p. 179.
* ↑ (1931) A.C. 275; 44 C.L.R. 530.
* ↑ (1926) 38 C.L.R., at p. 201.
* ↑ (1915) 20 C.L.R. 425.