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

Layout 2
​Fullagar J. The Communist Party Dissolution Act 1950 received the Royal Assent on 20th October 1950. Immediately after its enactment a number of actions were commenced in this Court by persons and bodies of persons affected by its provisions. The object of the actions is to obtain declarations that the Act is invalid and injunctions to prevent action being taken under it to the prejudice of the plaintiffs. Applications for interlocutory injunctions came on for hearing before Dixon J., who granted certain injunctions and refused others, and stated a case for the opinion of the Full Court on certain questions, the answers to which may or may not finally dispose of the actions. The Act contains a preamble consisting of nine "recitals", as they have been called. The plaintiffs deny the truth or accuracy of what is stated in a number of these recitals. They submit that the Act is invalid irrespective of the truth or accuracy of any of the recitals, but they maintain, alternatively, that its validity can only be supported on the footing that statements of fact contained in the recitals are true, and on this basis they desire to call evidence with a view to establishing that those statements are untrue or inaccurate. The questions stated for the opinion of the Full Court are—
"1 (a) Does the decision of the question of the validity or invalidity of the provisions of the Communist Party Dissolution Act 1950 depend upon a judicial determination or ascertainment of the facts or any of them stated in the fourth, fifth, sixth, seventh, eighth and ninth recitals of the preamble of that Act and denied by the plaintiffs, and (b) are the plaintiffs entitled to adduce evidence in support of their denial of the facts so stated in order to establish that the Act is outside the legislative power of the Commonwealth?
​2. If no to either part of question 1, are the provisions of the Communist Party Dissolution Act invalid either in whole or in some part affecting the plaintiffs?"
Before considering any of these questions, or even the proper approach to them, it is necessary to obtain a clear view of the substance of the provisions of the Act. Those provisions fall into three groups.
The central section of the first group is s. 4, which deals directly with the Australian Communist Party. The Australian Communist Party is defined by s. 3 as meaning the organization having that name on the specified date, which is 10th May 1948, "being the last day of the National Congress of the Australian Communist Party by which the constitution of the Australian Communist Party was adopted". Section 4 declares that the Australian Communist Party is an unlawful association and is by force of the Act itself dissolved. A receiver is to be appointed by the Governor-General and all the property of the Australian Communist Party is vested in the receiver so appointed. The powers and duties of the receiver are prescribed by s. 15, and a number of sections follow, which contain ancillary provisions dealing with his position. His primary duty is to take possession of the property of the Party, to realize that property, to discharge the liabilities of the Party, and to pay or transfer the surplus to the Commonwealth. Section 7 (1) prohibits, under penalty of imprisonment, the doing of a number of specified acts by way of adherence to, or in support of, the Australian Communist Party.
The central section of the second group of provisions is s. 5. The terms of this section are elaborate. It is enough to say that it does not apply to any industrial organization registered under Commonwealth or State law, but does apply to all other bodies of persons corporate or unincorporate which (to put it extremely shortly and without any pretence to accuracy) are dominated by communists or by communist doctrine. Sub-section (2) provides that where the Governor-General is satisfied that a body of persons is a body of persons to which s. 5 applies and that the continued existence of that body of persons would be prejudicial to the security and defence of the Commonwealth or to the execution or maintenance of the Constitution or of the laws of the Commonwealth, the Governor-General may, by instrument published in the Gazette, declare that body of persons to be an unlawful association. The Executive Council is not to advise the Governor-General to make a declaration unless the material upon which the advice is founded has first been considered by a committee consisting of ​certain designated persons. There is provision for an application to a court to set aside the declaration on the ground that the body is not a body to which s. 5 applies, but not on the ground that the continued existence of the body would be prejudicial to the matters mentioned in sub-s. (2). There is provision for the suspension of the consequences of the declaration pending the determination of the application. Section 6 provides that the effect of the declaration is to dissolve the body. Section 8 provides that the instrument making the declaration is to appoint a receiver of the property of the body, in whom the property of the body is to vest. Thereupon s. 15 and the other sections relating to receivers (to which I have already referred in connection with the first group of provisions) come into operation. Section 7, to which I have also already referred, also comes into operation in relation to the declared and dissolved body.
The centre of the third group of sections is s. 9. This section deals with individual persons, whereas s. 5 deals with bodies of persons. Section 9 applies to any person who was, after 10th May 1948 and before the dissolution of the Party by the Act, a member or officer of the Australian Communist Party or who is or was at any time after the specified date a communist. Sub-section (2) provides that where the Governor-General is satisfied that a person is a person to whom s. 9 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. The Executive Council is not to advise the Governor-General to make a declaration unless the material upon which the advice is founded has first been considered by a committee consisting of the same persons as are designated in s. 5. Again, there is provision for an application to a court to set aside the declaration on the ground that the applicant is not a person to whom s. 9 applies, but not on the ground that he is not a person engaged or likely to engage in activities prejudicial to defence or to the execution or maintenance of the Constitution or of the laws of the Commonwealth. There is also again provision for the suspension of the consequences of the declaration pending the determination of the application. Sections 10 and 14 provide for the consequences of the declaration. Section 10 provides that a declared person shall be incapable of holding office under or of being employed by the Commonwealth or an authority of the Commonwealth or of holding office as a member ​of an incorporated authority of the Commonwealth. He is also to be incapable of holding office in an industrial organization (whether registered under Commonwealth or State law or not) to which s. 10 applies. Section 10 applies to industrial organizations declared by the Governor-General to be industrial organizations to which the section applies, and the Governor-General may make such a declaration in any case where he is satisfied that a substantial number of members of the organization are engaged in one of a number of industries specified as vital industries or in any other industry which, in the opinion of the Governor-General, is vital to the security and defence of Australia. Sections 11 and 12 contain ancillary provisions in connection with the vacating of offices in cases to which s. 10 applies. Section 14 provides that no contract or agreement shall be made by the Commonwealth or by an authority of the Commonwealth with a person, in respect of whom a declaration under s. 9 is in force, under which a fee or other remuneration is payable in respect of the services of that person.
The provisions of s. 27 should be noted in conclusion. Section 27 provides that where 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 proclamation accordingly and thereupon the Act shall be deemed to have been repealed. There is an obvious ambiguity about this provision, but I should think it reasonably clear that what it really means is that the proclamation is to be made if, but not unless, the Governor-General is satisfied that neither the security and defence of Australia nor the execution and maintenance of the Constitution and of the laws of the Commonwealth require the continuance in operation of the Act.
The above brief analysis of the operative part of the Act discloses that there is a difference (which may turn out to be radical or may turn out to be of no substantial importance) between the first group of provisions on the one hand and the second and third groups on the other hand. Section 5 (2) and s. 9 (2), which are the respective keystones of the second and third groups, seem to invoke in terms two undoubted powers of the Parliament. There is a direct reference to the power given by s. 51 (vi.) of the Constitution to make laws with respect to defence, and there is a less direct reference to the power given by s. 51 (xxxix.) to make laws with respect to matters incidental to the execution of the powers vested by the Constitution in the Government of the Common​wealth. With regard to s. 4, however, which is the keystone of the first group, it seems quite clear that, if it be regarded in vacuo and without reference to extrinsic facts, it cannot be supported as an exercise of any power conferred by the Constitution on the Parliament. It is not possible by means of anything that appears on its face to relate it to any subject matter which is not left by the Constitution exclusively within the legislative powers of the States. In the argument before us much more time and attention were devoted to the second and third groups than to the first group. But both the long title and the short title of the Act, the preamble and the place of s. 4 in the forefront, show that the whole Act is directed primarily at the Australian Communist Party and communists, and one's first impression of the Act is that the fate of s. 4 is likely to seal, for weal or woe, the fate of the second and third groups of provisions.
The obvious need of s. 4 of legs upon which to walk, and the possible similar need of s. 5 (2) and s. 9 (2), did not, of course, go unnoticed by those who framed the Act, and it is the obvious purpose of the preamble, to which I have referred in passing, to supply the legs. The preamble, as I have said, contains nine "recitals". These fall into three classes. The first three recitals constitute the first class. They refer to the legislative powers of the Parliament. They recite (1) the legislative power given to the Parliament by s. 51 (vi.), the "defence power", (2) the conferring of executive power in the terms of s. 61, and (3) the conferring of the "incidental" legislative power in the terms of s. 51 (xxxix.) so far as it relates to the execution of powers vested by the Constitution in the Parliament of the Commonwealth or in the Government of the Commonwealth. The next five assert certain doctrines, aims and activities as doctrines, aims and activities of the Australian Communist Party and communists. The ninth and last purports to relate the enactment to the powers invoked by virtue of what is asserted in the fourth, fifth, sixth, seventh and eighth recitals. The aims and activities asserted in those recitals include the overthrow of established government in Australia by means of force, violence, intimidation and fraudulent practices, espionage and sabotage, and deliberate dislocation, disruption and reduction and retardation of production in industries vital to the security and defence of Australia. That such activities could be the subject of valid Commonwealth laws could, one would think, not be doubted. Some of them are indeed dealt with in Part IIA of the Crimes Act 1914–1946. But the great difficulty of the present case lies in the fact that the Act in question does not set out to deal ​with those activities as such. It has an actual direct operation upon a particular association of persons specified by name, and a potential direct operation upon other associations and individuals who become subject to it by virtue of an expression of opinion by the Governor-General.
I think that the questions in the case are best approached by a general consideration of the powers invoked. It will be convenient to take the defence power first, because it has been much explored in recent years, and it possesses, I think, certain features which differentiate it from all or most of the other legislative powers.
In the first place, the power given by s. 51 (vi.) of the Constitution is given by reference to the purpose or object of the law and not by reference to some concrete subject matter. Perhaps the best-known statement to this effect is to be found in the judgment of Dixon J. in Stenhouse v. Coleman, where his Honour said that the power given by s. 51 (vi.) "involves the notion of purpose or object". He said that the connection of any law with defence "can scarcely be other than purposive, if it is within the power". He added: "No doubt it is possible that the 'purpose' here may be another example of what Lord Sumner described as 'one of those so-called intentions which the law imputes: it is the legal construction put on something done in fact' (Commissioners of Inland Revenue v. Blott). For apparently the purpose must be collected from the instrument in question, the facts to which it applies, and the circumstances which called it forth." Here the obvious purpose of the preamble is to put forward facts to which the power applies and circumstances which call it forth. Whether it can achieve this purpose remains to be seen.
In the second place, and perhaps partly because of its "purposive" character, the power given by s. 51 (vi.) has two aspects. The tendency of the decisions of this Court, given in the course of two great wars and during the aftermath of each, has been to hold up the two aspects in sharp contrast one to another, and the dividing line between them has hitherto been regarded as sharp and clear—perhaps as sharper and clearer than it will ultimately be found to be. In its first aspect, s. 51 (vi.) authorizes the making of laws which have, as their direct and immediate object, the naval and military defence of the Commonwealth and of the several States. This power is clearly not confined to time of war: see, e.g., Farey v. Burvett, per Isaacs J.; Adelaide Company of Jehovah's Witnesses Inc. v. The Commonwealth, per Latham ​C.J.; Hume v. Higgins, per Dixon J.; and cf. the reference by Williams J. in Koon Wing Lau v. Calwell to matters "which could reasonably be considered to be a threat to the safety of Australia in the event of some future war." It is obvious that such matters as the enlistment (compulsory or voluntary) and training and equipment of men and women in navy, army and air force, the provision of ships and munitions, the manufacture of weapons and the erection of fortifications, fall within this primary aspect of the defence power. These things can be undertaken by the Commonwealth as well in peace as in war, because they are ex facie connected with "naval and military defence". From any legitimate point of view of a court their only possible purpose or object is naval and military defence. An interesting (and perhaps border-line) example of this primary aspect of the defence power is to be found in Attorney-General (Vict.) v. The Commonwealth.
But (with or without the aid of s. 51 (xxxix.)) the defence power in its primary aspect includes much more than the things I have mentioned. It could not, I think, be doubted that it includes a power to make laws for the prevention or prohibition and punishment of activities obstructive of the preparation by such means as I have mentioned of the nation for war—and this whether war appears to be imminent or the international sky to be completely serene. Here again, from any legitimate point of view of a court, the only possible purpose or object of such a law is naval and military defence. The possibility of some extrinsic purpose or ulterior motive cannot be investigated by a court (Stenhouse v. Coleman). The law is a law with respect to defence.
What I have called the secondary aspect of the defence power has so far only been invoked and expounded in connection with an actual state of war in which Australia has been involved. It has hitherto, I think, been treated in the cases as coming into existence upon the commencement or immediate apprehension of war and continuing during war and the period necessary for post-war readjustment. In a world of uncertain and rapidly changing international situations it may well be held to arise in some degree upon circumstances which fall short of an immediate apprehension of war. In its secondary aspect the power extends to an infinite variety of matters which could not be regarded in the normal conditions of national life as having any connection with defence. Examples now familiar are the prices of goods and the rationing of goods, rents and the eviction of tenants, the transfer of interests ​in land, and the conditions of employment in industry generally. It may be that, on its true analysis, this secondary aspect of the defence power depends wholly on s. 51 (xxxix.) of the Constitution. On this view, the effect of a national emergency is that the matters which I have mentioned, and very many others, become "matters incidental to the execution" of the power of the Executive to deal with the emergency. Having in mind this secondary or extended aspect of the power, Dixon J., in Andrews v. Howell, said of the power given by s. 51 (vi.):—"Though its meaning does not change, yet, unlike some other powers, its application depends upon facts, and, as those facts change, so may its actual operation as a power enabling the legislature to make a particular law. . . . The existence and character of hostilities, or a threat of hostilities, against the Commonwealth are facts which will determine the extent of the operation of the power." Other passages to a similar effect could be cited. In such passages the "facts" referred to are the basic facts which give rise to the extension of the power. Such facts have always hitherto been matters of public general knowledge, and matters, therefore, of which a court can and will take judicial notice. But, given the basic fact of (say) war, the question will still arise, whenever the validity of a particular law is in question, whether that law can be related to the extended power, or whether it is a law with respect to a matter incidental to the power of the Executive to wage war. The matter is, in effect, taken in two stages. At the first stage, the existence of war or national emergency is recognized as bringing into play the secondary or extended aspect of the defence power. This is done simply as a matter of judicial notice, and it provides the justification for a presumption of validity which might not otherwise exist in the case of an enactment which on its face bore no relation to any constitutional power. At the second stage the enactment in question is examined with regard to its character as a step to assist in dealing with the emergency, and "the presumption is, so to speak, reinforced by the respect which the court pays to the opinion or judgment of the other organs of government, with whom the responsibility for carrying on the war rests. When, for example, it appears that a challenged regulation is a means adopted to secure some end relating to the prosecution of the war, the court does not substitute for that of the Executive its own opinion of the appropriateness or sufficiency of the means to promote the desired end" (per Dixon J. in Stenhouse v. Coleman). The question which arises at this second stage may itself turn on ​particular facts as distinct from the overriding general fact of war or national emergency. Such facts may relate to the operation of the law in question or to a state of affairs which calls for its enactment. Whether any and what evidence of such facts is admissible must depend on the circumstances of each particular case. In Jenkins v. The Commonwealth, and in Sloan v. Pollard, evidence was admitted. On the other hand, affidavits were rejected in the Uniform Tax Case and in R. v. Foster; Ex parte Rural Bank of New South Wales, the Court in each case confining itself to matters of which judicial notice could be taken. The Court will normally, I think, so confine itself. In Stenhouse v. Coleman Dixon J. said:—"Ordinarily the Court does not go beyond matters of which it may take judicial notice. This means that for its facts the court must depend upon matters of general public knowledge." The reasons why this must generally be so are stated in his Honour's judgment. The taking of evidence might often involve disclosures which would be prejudicial to the steps being taken by the Executive to deal with the emergency. The Court, in any case, is bound by the legal rules of evidence, and there are thus limitations upon the material which it can receive or take into account. It may perhaps be added that the "facts" will in many cases be of such a general character as to be difficult or impossible to prove or disprove by legally admissible evidence, while quite capable of being judicially noticed. It is indeed a characteristic of a large class of matters which are judicially noticed that they are of this general character. In Holland v. Jones, Isaacs J. said:—"Wherever a fact is so generally known that every ordinary person may be reasonably presumed to be aware of it, the Court 'notices' it, either simpliciter if it is at once satisfied of the fact without more, or after such information or investigation as it considers reliable and necessary in order to eliminate any reasonable doubt. The basic essential is that the fact is to be of a class that is so generally known as to give rise to the presumption that all persons are aware of it. This excludes from the operation of judicial notice what are not 'general' but 'particular' facts. . . . But, if the fact is of such 'general' character as to give rise to the presumption mentioned, then a Judge is justified in 'noticing' it."
Closely connected with the foregoing and with each other are two other features of the defence power in its wider aspect. It is well ​established that the so-called separation of powers under the Constitution does not preclude the Parliament from authorizing in the widest and most general terms subordinate legislation under any of the heads of its legislative power (Victorian Stevedoring and General Contracting Co. Ltd. and Meakes v. Dignan). But the scope of permissible "delegation" of legislative power to the Executive is almost certainly wider in the case of the defence power than in the case of any of the other powers. Thus an Act giving a power "to make regulations with respect to bankruptcy", not given in aid of specific legislation by the Parliament, might well be held not to be a law with respect to bankruptcy. But an Act giving to the Governor-General a power "to make regulations for securing the public safety and the defence of the Commonwealth" is a valid law with respect to the defence of the Commonwealth in time of war (Wishart v. Fraser). In that case Dixon J. said: "The defence of a country is particularly the concern of the Executive, and in war the exigencies are so many, so varied and so urgent, that width and generality are a characteristic of the powers which it must exercise". Further—and more important for present purposes—power may validly be given by an Act, or by a regulation under an Act, to a designated person or authority to make orders, declarations and proclamations which are not themselves of a legislative character but which carry legal consequences by virtue of the Act or regulation under which they are made. And such orders, declarations or proclamations may be authorized to be made on no more specific basis than the opinion of the donee of the power that they are necessary or desirable for securing the public safety and the defence of the Commonwealth. There could be no more striking illustration of the exceptional status of the defence power. For "when the operation of a law is made conditional upon the opinion, as to certain matters, of some person named or described, or on proof of certain matters to his satisfaction, the question whether his opinion is justified, or whether he should have been satisfied on the materials before him, is not examinable by the Courts. The only question which can be examined is whether, acting bona fide, he formed the opinion or was satisfied with the proof" (Ex parte Walsh and Johnson, (per Knox C.J.)). If the opinion is to be that of the Governor-General, it cannot, in my opinion, be examined at all, for it is not open to impute mala fides with respect to an act of the King by ​himself or his representative (Duncan v. Theodore (per Isaacs and Powers JJ.)).
That under the defence power a law may, at least in time of war, be made to operate upon the opinion of a designated person, and that that opinion may supply the only link between the defence power and the legal effect of the opinion is well established. It is sufficient to refer to Lloyd v. Wallach (cf. Liversidge v. Anderson; Ex parte Walsh; Little v. The Commonwealth; and Reid v. Sinderberry). It may be thought that herein lies an exception to an elementary rule of constitutional law which has been expressed metaphorically by saying that a stream cannot rise higher than its source. It was stated in Shrimpton v. The Commonwealth in these terms:—"Finality, in the sense of complete freedom from legal control, is a quality which cannot be given under our Constitution to a discretion, if … it is capable of being exercised for purposes, or given an operation, which would or might go outside the power from which the law or regulation conferring the discretion derives its force." Cf. Dawson v. The Commonwealth. The "discretion" may, of course, be the discretion of the legislature itself, exercised by the very fact of the enactment of a law. Or it may be the discretion of the Governor-General or a Minister, intended to be legally effective by the operation of an enacted law upon it. The validity of a law or of an administrative act done under a law cannot be made to depend on the opinion of the law-maker, or the person who is to do the act, that the law or the consequence of the act is within the constitutional power upon which the law in question itself depends for its validity. A power to make laws with respect to lighthouses does not authorize the making of a law with respect to anything which is, in the opinion of the law-maker, a lighthouse. A power to make a proclamation carrying legal consequences with respect to a lighthouse is one thing: a power to make a similar proclamation with respect to anything which in the opinion of the Governor-General is a lighthouse is another thing. Whether the rule exemplified by Lloyd v. Wallach constitutes a real or only an apparent exception to the general rule is a matter which need not be considered here. It is enough to say that, on the one hand, it is established beyond all doubt, while, on the other hand, ​it has never yet been invoked except in connection with that secondary aspect of the defence power which has so far been regarded as depending upon a basic fact of emergency and ceasing when conditions created by the emergency have passed (R. v. Foster; Ex parte Rural Bank of New South Wales; Wagner v. Gall; Collins v. Hunter).
The "defence" to which s. 51 (vi.) refers is the defence of Australia against external enemies: it is concerned with war and the possibility of war with an extra-Australian nation or organism. But it cannot, in my opinion, be doubted that there exists also a legislative power in the Parliament, which it is not easy to define in precise terms, to make laws for the protection of itself and the Constitution against domestic attack. In R. v. Kidman Isaacs J. said that the legislative power "may say that any attempted invasion by force on the field of Commonwealth executive powers may not only be resisted and prevented, but also punished." In the same case his Honour said that the Commonwealth has "an inherent right of self-protection" and that it "carries with it—except where expressly prohibited—all necessary powers to protect itself and punish those who endeavour to obstruct it." In Ex parte Walsh and Johnson the same learned Justice, speaking of "deportation as a means of self-protection in relation to constitutional functions", said:—"This nation cannot have less power than an ordinary body of persons, whether a State, a church, a club, or a political party, who associate themselves voluntarily for mutual benefit, to eliminate from their communal society any element considered inimical to its existence or welfare". In R. v. Hush; Ex parte Devanny Rich J. said:—"… it is impossible to doubt the legislative power to prohibit associations which by their constitutions or propaganda advocate or encourage the overthrow of the Constitution of the Commonwealth by revolution or of the established government of the Commonwealth by force or violence. Section 51 (xxxix.) of the Constitution includes matters incidental to the execution of powers vested by the Constitution in the organs of government. The survival of the Constitution appears to me to be a matter most incidental to the execution of power under it. But, apart from this, s. 61 of the Constitution expressly enacts that the executive power shall extend to the execution and maintenance of the Constitution. To prevent persons associating together for the ​purpose of destroying the Constitution is a matter incidental to maintaining it." In that case Rich J. took a different view of the facts from that taken by the other justices, who did not find it necessary to consider the question of constitutional power, though Evatt J. expressed doubt as to the existence of the power. But in Burns v. Ransley its existence was, I think, placed beyond doubt. The relevant passages are of great importance, but they are already recorded, and I will quote only two brief extracts. Latham C.J. said:—"Protection against fifth-column activities and subversive propaganda may reasonably be regarded as desirable or even necessary for the purpose of preserving the constitutional powers and operations of governmental agencies and the existence of government itself. The prevention and punishment of intentional excitement of disaffection against the Sovereign and the Government is a form of protective law for this purpose which is to be found as a normal element in most, if not all, organized societies". Dixon J. said:—"I do not suppose that it would be denied that the legislative power of the Commonwealth extends to measures for the suppression of incitements to the actual use of violence for the purpose of resisting the authority of the Commonwealth or effecting a revolutionary change in the form of government. In the same way I think that the legislative power authorizes measures against incitements to the use of violence for the purpose of effecting a change in our constitutional position under the Crown or in relation to the United Kingdom or in the Constitution or form of government in the United Kingdom. Our institutions may be changed by laws adopted peaceably by the appropriate legislative authority. It follows almost necessarily from their existence that to preserve them from violent subversion is a matter within the legislative power." Not less important are the statements to be found in R. v. Sharkey. The source of part of the power which I have been discussing may be found in s. 51 (xxxix.), read with s. 61 of the Constitution, and it is here that the framers of the second and third recitals in the preamble to the Communist Party Dissolution Act have found it. But I think that, if it ever becomes necessary to examine it closely, it may well be found to depend really on an essential and inescapable implication which must be involved in the legal constitution of any polity. The validity of the Act, however, if it could be supported by the power, would not be affected by the fact that its framers had taken too narrow a view of the source of the power.
​There has never yet been occasion to examine closely the scope of this power. It may be that it is elastic in the same sense in which the defence power is elastic. But I do not think that the principle of Lloyd v. Wallach and Ex parte Walsh can be applied to it. That is to say, while it may be found to expand very considerably in time of domestic emergency, I think that it is so far of a different nature from the defence power that a law cannot be made under it imposing legal consequences on a legislative or executive opinion which itself supplies the only link between the power and the legal consequences of the opinion.
I come now to the Act itself. The most conspicuous feature of the Act is s. 4, and the most conspicuous feature of s. 4 is that it does not purport to impose duties or confer rights or prohibit acts or omissions, but purports simply to declare a particular unincorporated voluntary association unlawful and to dissolve it. It is, one supposes, to be classed as a public enactment as distinct from a private enactment, but it is, or at least is extremely like, what the Romans would have called a privilegium. Such a law (for I would not deny to it the character of a law) may well be within the competence of the Commonwealth legislative power, which is, within its constitutional limits, plenary (cf. Abitibi Power & Paper Co. Ltd. v. Montreal Trust Co.). It would be impossible, I should think, to challenge s. 4 if the Parliament had power to make laws with respect to voluntary associations or with respect to communists. It would be a law "with respect to" each of those "matters". So an Act of the Parliament dissolving the marriage of A with B would be a law with respect to divorce. It would be a privilegium, but what the Act actually did would be a thing which fell within a class of subject matter on which the Parliament was authorized to legislate. The Parliament has power to make laws with respect to divorce, and the Act is a law which effects a divorce. It is a privilegium, but it is a good law. But, if the Parliament enacts a privilegium which on its face bears no relation to any head of legislative power, it is likely to be extremely difficult to justify it under any head of power. In such a case (and s. 4 is an example of such a case) there can, in my opinion, be no presumption of validity, and the Act, if it is to be upheld at all, can only be upheld on the basis of special and particular facts relating to the person or class who or which is the subject of the privilegium. Suppose, for example, an Act of the Parliament providing that all the property of AB should be ​delivered to a receiver X and realized and that the proceeds should be distributed among the creditors of AB. Such an Act might (I do not say it would) be a good law with respect to bankruptcy if the liabilities of AB at the commencement of the Act exceeded his assets, but it could not possibly otherwise be a law with respect to bankruptcy. It seems to me that there could not in such a case by any presumption of validity, for the simple reason that there could not be any presumption that the liabilities of AB exceeded his assets. I am only, of course, using the case for purposes of illustration, and it does not matter for this purpose whether excess of liabilities over assets would really be the correct test to apply. What seems clear is that the supposed Act could not be held valid except on the basis of facts, proved or judicially noticed, to connect it with power. The present case is not exactly parallel to the case which I have supposed, because in the present case a real question of judicial notice arises, which would not arise in the example I have taken. But it is desirable, in a case of such importance, to proceed step by step, and we begin, I think, with this, that there can be no presumption of the validity of s. 4, for the simple reason that there can be no presumption that the Australian Communist Party has done or is likely to do anything which would bring it within the defence power or the constitution-preservation power (to give it a short name at some sacrifice of accuracy).
It should be observed at this stage that nothing depends on the justice or injustice of the law in question. If the language of an Act of Parliament is clear, its merits and demerits are alike beside the point. It is the law, and that is all. Such a law as the Communist Party Dissolution Act could clearly be passed by the Parliament of the United Kingdom or of any of the Australian States. It is only because the legislative power of the Commonwealth Parliament is limited by an instrument emanating from a superior authority that it arises in the case of the Commonwealth Parliament. If the great case of Marbury v. Madison had pronounced a different view, it might perhaps not arise even in the case of the Commonwealth Parliament; and there are those, even to-day, who disapprove of the doctrine of Marbury v. Madison, and who do not see why the courts, rather than the legislature itself, should have the function of finally deciding whether an Act of a legislature in a Federal system is or is not within power. But in our system the principle of Marbury v. Madison is accepted as axiomatic, modified in varying degree in various cases (but ​never excluded) by the respect which the judicial organ must accord to opinions of the legislative and executive organs.
I have said that there can, in my opinion, be no presumption of the validity of s. 4. But I have been considering the matter so far without reference to the preamble. How, if at all, is the position affected by the recitals contained in the preamble? In the case of a legislature of limited powers, can such recitals be used to bring within power a privilegium which cannot be related by anything that appears on its face to any power of that legislature? One thing seems very clear to me, and that is that no declaration containing allegations in favour of, or against, the object of the privilegium could be conclusive for or against that object. To go back to my bankruptcy example, if the Court were to hold that AB was not entitled to adduce evidence in denial of a recital in the Act that his liabilities exceeded his assets, the Court would be not merely paying respect to the opinion of the legislature but simply abdicating its function. And the position is prima facie similar in the present case. Parliament cannot recite itself into a field the gates of which are locked against it by superior law. The example which I am at the moment considering is a fortiori to that which Latham C.J. was considering in South Australia v. The Commonwealth, and the learned Chief Justice there said: "Such a declaration cannot be regarded as conclusive. A Parliament of limited powers cannot arrogate a power to itself by attaching a label to a statute."
I am of opinion, indeed, that, in such a case as the present, such recitals cannot be regarded as affording even prima-facie evidence of the truth of what is recited. I do not think that there is any rule of the common law which compels us so to regard them, though the English Courts generally regard recitals of facts in a statute as equivalent to prima-facie evidence of the truth of those facts. But the matter is primarily one of the construction of the statute in each particular case, and the position may be affected by circumstances. The reasoning of Lord Ellenborough and Bayley J. in R. v. Sutton would indeed seem to lead to the conclusion that such recitals must amount to conclusive evidence, since those learned judges appear to treat the recitals as standing on the same level as the operative part of the statute and as being in effect part of the law enacted. But, as is pointed out in Craies on Statute Law, 4th ed. (1936), p. 41, recitals as such are not part of the law enacted on the subject, and the most that can be said ​is, I think, that such statements are generally to be regarded by a court as prima-facie true. In Earl of Leicester v. Heydon the argument of counsel that "the recital in our case, which is false, and founded upon a false information, shall not conclude the plaintiff to say the truth" appears to have been accepted by the Court of King's Bench. In R. v. Greene Lord Denman C.J. agreed that mention in a statute of a certain body of persons as a corporation "made a prima-facie case" that the body was incorporated, but held the prima-facie case displaced by other evidence which was admitted. Patteson J. and Coleridge J. concurred. No doubt, in the case of a legislature of unlimited powers, a statement of fact or law could be made conclusive. So, in R. v. Inhabitants of Haughton, Lord Campbell C.J. said that a recital in a statute that a certain road was in Denton might be considered evidence that the road was in Denton but could not prevail against an estoppel, and he added: "Had there been anything amounting to an enactment that the road should be considered in Denton, this would have prevailed over the estoppel: but a mere recital is an Act of Parliament, either of fact or of law, is not conclusive: and we are at liberty to consider the fact or the law to be different from the statement in the recital." (The latter part of this passage was quoted with approval by Lord Chelmsford in Mersey Docks and Harbour Board Trustees v. Cameron.) The whole position seems to be summed up by Knight Bruce L.J. when, in Norton v. Spooner, speaking for the Privy Council, he says that "a recital in an act of legislation, … may, according to circumstances, be of more or less weight, and be often not conclusive".
But, whatever may be the general position, it seems to me that it would be contrary to principle to allow even prima-facie probative force to recitals of facts upon which the power to make the law in question depends. It is, as I have said, clearly impossible to allow them conclusive force, because to do so would be to say that Parliament could recite itself into a field which was closed to it. But to allow any probative force to such recitals would, it seems to me, be to say the same thing—and not less because the entry into the field might be only provisional. This view is not, in my opinion, inconsistent with the many statements to be found in cases arising on the defence power to the effect that the Court ​will pay great respect to statements of Parliament in an Act or of the Governor-General in a regulation. This has been put strongly on occasions—nowhere, perhaps, more strongly than by Higgins J. in Pankhurst v. Kiernan, where his Honour said that, if Parliament treated the fixing of prices as conducing to the defence of the Commonwealth, "we are bound to accept the statement of Parliament that it does so conduce unless we can see that the statement is obviously untrue or absurd." A somewhat similar approach is indicated when Lord Atkin, in Abitibi Power & Paper Co. Ltd. v. Montreal Trust Co. says:—"Their Lordships see no reason to reject the statement of the Ontario legislature, contained in the preamble." But neither Higgins J. nor Lord Atkin was thinking of a case in which the "statement" of Parliament was a statement of particular facts relating to a particular individual or body of individuals, although the Ontario statute in the latter case was a special Act relating to the appellant company. And, in so far as effect has been given to such statements of Parliament as bearing on the connection between enactment and legislative power, the cases have all been cases in which the basic fact of war has been judicially noticed at the outset. That basic fact brings into existence the secondary aspect of the defence power, to which, as I have pointed out, exceptional considerations apply.
I have thought it right to consider with some care whether any and what probative force could be attributed to the fourth, fifth, sixth, seventh and eighth recitals in the preamble to the Act, regarded as statements of fact, because a good deal of the argument for the Australian Communist Party was devoted to this question, and it is a question of general interest and importance. But the truth is that I do not think that those recitals can be properly regarded at all as statements of fact having a potential probative force by virtue of their presence in an Act of Parliament. It is more or less involved in what I have said that I am disposed to regard such a view as a begging of the question. It is as if one should say: "The Act is valid because the statements contained in it are true, and the statements are true because they are contained in a valid Act." The true view is, I think, that the recitals in the preamble are to be regarded as statements of opinion or belief as to facts, inserted to explain the occasion of what is enacted and to provide justification for it. I do not think that any further or other effect can be given to the preamble in this case. It does not necessarily follow that the recitals are of no importance, because, if one condition, to which I will refer in a moment, were ​fulfilled, they would be very important indeed and probably decisive.
Nor does it necessarily follow from what I have just been saying that both questions 1 (a) and 1 (b) in the case stated by Dixon J. should be answered in the negative, because the Commonwealth might still maintain that the validity of the Act depends on facts asserted in the preamble and capable of judicial ascertainment, and might seek to tender evidence to establish the facts which it regarded as essential. And, if the Commonwealth were to be permitted to tender such evidence, the plaintiffs would, as a matter of course, be entitled to adduce evidence in rebuttal. But the Commonwealth has not sought to adduce evidence, and it has, in my opinion been right in not seeking to do so, because I do not think that the validity of this Act depends on evidence.
This Act can, in my opinion, only be supported, if it can be supported at all, as an exercise of the defence power in what I have called its extended or secondary aspect. I do not think it can be supported under the other power invoked, whether that power be regarded as based on the joint operation of s. 61 and s. 51 (xxxix.) of the Constitution or on an implication from the existence and nature of the Constitution as the foundation of a body politic. The reason for this is that the provisions of the Act operate on opinions, and those opinions include an opinion as to matters on which the validity of those provisions depends. There is, as I have pointed out, a notable difference between the first group of provisions (headed by s. 4) on the one hand and the second and third groups of provisions (headed by ss. 5 and 9) on the other hand. But, in the last analysis, they stand on the same footing, and their validity depends on the same considerations. Section 4 is a directly enacted privilegium based on announced opinions of the Parliament, which involve an opinion as to matters on which power depends. Sections 5 and 9 operate on opinions of the Governor-General, which involve an opinion as to matters on which power depends. The decisions of this Court establish that such enactments may (not that they always will) be valid in cases where the secondary aspect of the defence power comes into existence by virtue of a judicially noticed emergency. No decision establishes that such enactments may be valid as exercises of the other power invoked by the Parliament in this case, and I have already expressed my opinion that there is no secondary aspect of this other power corresponding to the secondary aspect of the defence power.
​The question whether the Act can be supported as an exercise of the defence power in its secondary aspect must, in my opinion, depend entirely on judicial notice. The coming into existence of this secondary aspect has never been treated as depending on anything else. Nor could it, in my opinion, be treated as depending on anything else. It is only when the existence of the secondary aspect has been established by judicial notice of an emergency that evidence has ever been admitted to connect the enactment in question with power. This I have already pointed out. I think that it is only in exceptional cases, where a simple fact is readily susceptible of proof or disproof, that evidence can, even then, be admitted. I have cited what Dixon J. said in Stenhouse v. Coleman. "Ordinarily the Court does not go beyond matters of which it may take judicial notice." The present case seems to me to be pre-eminently a case in which the Court would have to confine itself, even if it were satisfied that the Act was capable of being supported under the defence power in its secondary aspect, to matters of which it could take judicial notice. Apart from the considerations mentioned in Stenhouse v. Coleman, one has only to glance at the relevant recitals in the Communist Party Dissolution Act to see that they could hardly be made the subject of proof or disproof by evidence in the ordinary way in which facts are proved and disproved. They relate to a particular association, but no specific act or fact is asserted, and what is asserted is of that "general" character on which Isaacs J. laid so much stress in Holland v. Jones. Such matters in a constitutional case are matters for judicial notice or they are nothing.
The elimination of the second power on which it is sought to support the Act is, I think, important, because matters of which judicial notice could, as I think, be taken would come nearer to justifying the Act as an exercise of this power than as an exercise of the defence power. It must, however, in my opinion, be eliminated, and we are thus brought to what I regard as the ultimate problem in this difficult case. That ultimate problem lies, I think, in the question whether judicial notice can be taken of matters sufficient to bring into operation that extended aspect of the defence power which was the basis of the decisions in Lloyd v. Wallach; Ex parte Walsh, and Little v. The Commonwealth. On the whole I do not think that it can.
​Four things are to be remembered throughout. The first, which may or may not by itself be of vital importance, is that the date as at which the matter must be considered is 20th October 1950. The second is that the Parliament had, and has, undoubted powers to deal with such a situation as is envisaged by the preamble. The only question is whether it has power to deal with it by the particular means adopted. The third is that the particular means adopted is a means which has hitherto been recognized as valid only in time of, and by virtue of, a clear and great national danger. It is a means, moreover, which may—from a practical, though not perhaps from a technical and analytical, point of view—be thought to involve a degree of relaxation of a fundamental constitutional rule. Finally, it must not be forgotten that the defence power is, as I have said, a power concerned with protection against external enemies. If, therefore, a situation is to be found which will justify the Act in question as an exercise of an extended defence power, it must be an international situation. It is necessary to be on guard against letting in considerations appropriate only to the other power on which reliance is placed and which I have felt must be rejected.
On the one hand, I am not prepared to hold that nothing short of war or an immediate threat of war can bring into play a fully extended defence power. Each situation which arises must be examined as and when it arises. On the other hand, I think that the Court would be justified in taking judicial notice of a good many of the matters suggested by Mr. Barwick as proper matters for judicial notice. But I have come to the conclusion that, if one keeps steadily in mind the important factors which I have enumerated, one cannot judicially notice in this case a state of affairs which would justify holding a measure having the peculiar features of the Communist Party Dissolution Act valid as an exercise of an extended defence power.
It was argued that the Parliament had, by enacting s. 4, assumed itself to exercise judicial power in contravention of the Constitution, which by s. 71 entrusts the judicial power of the Commonwealth to organs other than the Parliament. I am quite unable to accept such a view. In enacting s. 4 the Parliament was making a law, or making what would be a law if it were "with respect to" some subject matter of legislative power. It neither did nor purported to do anything other than to make a law. And making laws is not a judicial function. The power to make Rules of Court, as incidental to the exercise of the judicial function, is, of course, beside the point here. Making laws as such is not a judicial function, ​and, when Parliament makes a law—any kind of law—it is not exercising judicial power. The "law" may be valid or invalid, but, if it is invalid, it will not be because Parliament has attempted to invade the judicial sphere.
The conclusion which I have set out above is sufficient, in my opinion, to dispose of all three groups of provisions contained in the Act. It seems clear that it establishes the invalidity of the first two groups, which hinge respectively on s. 4 and s. 5 (2). A further question arises, however, with regard to the third group of provisions, those which hinge upon s. 9 (2). It is arguable that the consequences attached to a declaration under s. 9 (2) do not necessarily depend for their validity upon the power to make laws with respect to defence or the power to make laws with respect to matters incidental to the execution of the executive power. Those consequences are attached by ss. 10 and 14 and may be shortly stated as being that a person declared under s. 9 (2) shall be incapable of (a) holding office under or being employed by the Commonwealth or an authority of the Commonwealth, or (b) holding office as a member of a body corporate being an authority of the Commonwealth, or (c) holding office in certain industrial organizations, and that no contract for remuneration shall be made with a declared person. The Commonwealth has clearly power to make laws disqualifying any person or class of persons from being employed by the Commonwealth or an authority of the Commonwealth or from being a member of a corporate authority of the Commonwealth or from contracting with the Commonwealth. A law imposing such a disqualification may select any criterion whatever as the basis of the disqualification, even an irrational or absurd criterion, because the law will be a law with respect to a matter within the legislative power, and indeed within the exclusive legislative power, of the Commonwealth. And the view suggested by Higgins J. in several cases that there was an analogy between legislative powers and powers of appointment, and that it must appear on the face of a statute that the legislature intended to exercise a power invoked to support it, has never, I think, been accepted as sound. Starke J. said, in Ex parte Walsh and Johnson:—"A law enacted by a Parliament with power to enact it, cannot be unlawful. The question is not one of intention but of power, from whatever source derived."
A similar view might be put with regard to s. 10 (1) (c), which disqualifies declared persons from holding office in certain industrial organizations. Clearly, of course, s. 10 (1) (c) cannot be so ​supported in its entirety on this basis, because industrial organizations with respect to which the Commonwealth has no legislative power are included. It might, however, be suggested that it was valid in a limited application to organizations registered under the Commonwealth Conciliation and Arbitration Act. I should certainly suppose that the Commonwealth Parliament could validly make it a condition of registration that any particular person or class of persons should be disqualified from holding office in any such organization; or could provide that the rules of any organization registered under the Act must contain provisions that no person of any specified class shall be eligible for office in the organization; or could provide that the holding of an office in an organization by a person of any specified class should be a ground for deregistration of the organization. The power to do these things rests on s. 51 (xxxv.) and (xxxix.) of the Constitution: see Jumbunna Coal Mine v. Victorian Coal Miners' Association
I am of opinion, however, that s. 10 (1) and s. 14 cannot be supported on this basis. This basis necessarily assumes either that s. 9 (2) is in itself a valid enactment or that it has no operative effect but serves merely to describe a class. I have already said that I do not think that s. 9 (2) is a valid enactment, and it cannot, in my opinion, be regarded as merely serving to describe a class. It is an enabling law, and the declaration could be made of any person irrespective of whether he were in the Commonwealth public service or a member of an industrial organization or a candidate for membership of the Commonwealth public service or for office in an industrial organization.
Apart from legal consequences, such a declaration could have a most damaging effect, and, in my opinion, s. 9 (2) must be regarded as a law and an invalid law. On this view the basis of the arguments under consideration disappears.
In the case of s. 10 (1) (c) there is, I think, another reason for rejecting the argument in its favour, and this is that it is impossible to "sever" or "read down" s. 10 (1) (c) so as to make it apply only to industrial organizations registered under the Arbitration Act and then treat it as a law valid to that extent under the power to make laws with respect to a matter incidental to the execution of the power to make laws with respect to conciliation and arbitration under s. 51 (xxxv.). Intention to exercise a power is not, I think, important in connection with s. 10 (1) (a) or (b) or s. 14, because no question of "reading down" arises. But such a question does arise in connection with s. 10 (1) (c), and intention may be important in ​such a case. The characteristic regarded by Parliament as the essential characteristic of the industrial organizations with which it is dealing is clearly indicated in s. 10 (3). To select arbitrarily some other and unrelated characteristic such as being registered under the Arbitration Act or being engaged on Commonwealth public works or defence projects is really to assume the function of legislation, and this is not authorized either by any common-law rule or by s. 13A of the Acts Interpretation Act. Cf. Victorian Chamber of Manufacturers v. The Commonwealth, per Latham C.J. and per McTiernan J.
For the above reasons I am of opinion that the questions asked by the case stated must be answered as follows:—
1 (a) No. (b) No.
2. The Act is wholly invalid.
* ↑ (1944) 69 C.L.R., at p. 471.
* ↑ (1921) 2 A.C. 171, at p. 218.
* ↑ (1916) 21 C.L.R., at p. 453.
* ↑ (1943) 67 C.L.R., at pp. 132, 133.
* ↑ (1949) 78 C.L.R., at pp. 133, 134.
* ↑ (1949) 80 C.L.R., at p. 585.
* ↑ (1935) 52 C.L.R. 533.
* ↑ (1944) 69 C.L.R., at p. 471.
* ↑ (1941) 65 C.L.R., at p. 278.
* ↑ (1944) 69 C.L.R., at p. 470.
* ↑ (1947) 74 C.L.R. 400.
* ↑ (1947) 75 C.L.R. 445.
* ↑ (1942) 65 C.L.R., at pp. 384, 385, 409.
* ↑ (1949) 79 C.L.R., at pp. 51, 52.
* ↑ (1944) 69 C.L.R.. at p. 469.
* ↑ (1917) 23 C.L.R., at p. 153.
* ↑ (1931) 46 C.L.R. 73.
* ↑ (1941) 64 C.L.R. 470.
* ↑ (1941) 64 C.L.R., at pp. 484, 485.
* ↑ (1925) 37 C.L.R., at p. 67.
* ↑ (1917) 23 C.L.R., at p. 544.
* ↑ (1915) 20 C.L.R. 299.
* ↑ (1942) A.C. 206.
* ↑ (1942) A.L.R. 359.
* ↑ (1947) 75 C.L.R. 94.
* ↑ (1944) 68 C.L.R. 504.
* ↑ (1945) 69 C.L.R., per Dixon J., at pp. 629, 630.
* ↑ (1946) 73 C.L.R., per Dixon J., at pp. 181, 182
* ↑ (1915) 20 C.L.R. 299.
* ↑ (1949) 79 C.L.R. 43.
* ↑ (1915) 20 C.L.R., at p. 441.
* ↑ (1915) 20 C.L.R., at p. 440.
* ↑ (1915) 20 C.L.R., at pp. 444, 445.
* ↑ (1925) 37 C.L.R., at, p. 94.
* ↑ (1932) 48 C.L.R., at p. 506.
* ↑ (1949) 79 C.L.R. 101.
* ↑ (1949) 79 C.L.R., at p. 110.
* ↑ (1949) 79 C.L.R., at p. 116.
* ↑ (1949) C.L.R., at p. 148 per Dixon J.; at pp. 157, 158, per McTiernan J., and at p. 163, per Webb J.
* ↑ (1915) 20 C.L.R. 299.
* ↑ (1942) A.L.R. 359.
* ↑ (1943) A.C., at p. 548.
* ↑ (1803) 1 Cr. 137 [2 Law. Ed. 118].
* ↑ (1942) 65 C.L.R., at p. 432.
* ↑ (1816) 4 M. & S. 532 [105 E.R. 931].
* ↑ (1561) 1 Plowd. 384 [75 E.R. 582].
* ↑ (1561) 1 Plowd., at p. 398 [75 E.R., at p. 603].
* ↑ (1837) 6 Ad. & E. 548 [112 E.R. 210].
* ↑ (1853) 1 El. & Bl. 501, at pp. 515, 516 [118 E.R., 523, at p. 528].
* ↑ (1864) 11 H.L.C. 443, at p. 518 [11 E.R. 1405, at p. 1434].
* ↑ (1854) 9 Moo. P.C. 103, at p. 129 [14 E.R. 237, at p. 246].
* ↑ (1917) 24 C.L.R., at p. 134.
* ↑ (1943) A.C., at p. 548.
* ↑ (1944) 69 C.L.R., at pp. 469, 470.
* ↑ (1944) 69 C.L.R., at p. 469.
* ↑ (1917) 23 C.L.R., at p. 153.
* ↑ (1915) 20 C.L.R. 299.
* ↑ (1942) A.L.R. 359.
* ↑ (1947) 75 C.L.R. 94.
* ↑ (1925) 37 C.L.R., at p. 135.
* ↑ (1908) 6 C.L.R. 309.
* ↑ (1943) 67 C.L.R., at pp. 418, 419.
* ↑ (1943) 67 C.L.R., at p. 424.