Australian Communist Party v The Commonwealth

Front matter

REPORTS OF CASES

DETERMINED IN THE

HIGH COURT OF AUSTRALIA

Reasons for judgment of Latham CJ

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.