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Australian Communist Party v. The Commonwealth [1951] HCA 5; (1951) 83 CLR 1 (9 March 1951)

DIXON J. In these proceedings the validity of the Communist Party Dissolution Act 1950 is in question. The primary ground upon which its validity is attacked is simply that its chief provisions do not relate to matters falling within any legislative power expressly or impliedly given by the Constitution to the Commonwealth Parliament but relate to matters contained within the residue of legislative power belonging to the States. (at p174)

2. The leading provision in the Act carries out the intention indicated by the short title. By direct enactment it purports to dissolve the Australian Communist Party eo nomine. The provision is s. 4, which says that the Australian Communist Party is declared to be an unlawful association and by force of the Act to be dissolved. The section goes on to require the appointment by the Governor-General in Council of a receiver of the property of the body and upon the gazettal of the appointment to vest the property in the receiver, subject in the case of land to registration of title. (at p175)

3. It is of course true, as a general statement, that the law governing the formation, existence and dissolution of voluntary associations of people falls within the province of the States. The legislative power of the Commonwealth does not extend to the subject as such, and if any part of it may be dealt with constitutionally by Federal statute it is as incidental to some matter falling within the specific powers conferred upon the Parliament of the Commonwealth. To sustain the validity of s. 4, it is therefore necessary to find a subject of Federal legislative power to which the enactment of such a provision is fairly incidental. The powers upon which for this purpose reliance is placed in support of s. 4 are two. Primarily it is sought to refer s. 4 to the power conferred by s. 51(vi.) of the Constitution to make laws for the naval and military defence of the Commonwealth and of the several States, and the control of the forces to execute and maintain the laws of the Commonwealth. But reliance is also placed upon the power which the Federal legislature undoubtedly possesses to make laws for the protection of the Commonwealth against subversive designs, whether that power be attributable to the interplay of s. 51(xxxix.) with s. 61 or forms part of a paramount authority to preserve both its own existence and the supremacy of its laws necessarily implied in the erection of a national government. (at p175)

4. The purpose shown by s. 4 of the Communist Party Dissolution Act of dissolving association of communists as unlawful is carried a step further by s. 5 of the Act. Section 5 is directed against bodies of persons possessing communist affiliations or connections of certain forms, which are defined, but it does not apply to industrial organizations registered under the law of the Commonwealth or of a State. If a body possesses any one of the required forms of communist affiliation or connection, then by sub-s. (1) the section is made applicable to the body. The body is not, however, made unlawful by reason only of its falling within the section. Whether it is to be declared unlawful is a matter confided to the decision of the Governor-General in Council. It is to be done in pursuance of a power conferred by sub-s. (2), which is expressed as follows:- "Where the Governor-General is satisfied that a body of persons is a body of persons to which this section applies and that the continued existence of that body of persons would be prejudicial to the security and defence of the Commonwealth or to the execution or maintenace of the Constitution or of the laws of the Commonwealth, the Governor-General may, by instrument published in the Gazette, declare that body of persons to be an unlawful association." By the next sub-section (sub-s.(3)) an official committee is set up and a direction is given to the Executive Council not to advise the Governor-General to make a declaration unless the material on which the advice is founded has first been considered by the committee. It does not restrain the Governor-General in Council from making a declaration unless such a declaration is recommended by the committee. All that is made necessary is that the materials shall first be "considered" by the committee. By sub-s. (4) the body is given an appeal to a court from a declaration by the Governor-General, but the appeal is confined to the question whether the section applies to the body, that is to say to the question whether the body possesses any of the defined forms of connection or affiliation with the Australian Communist Party or communism. There is no review of the Governor-General's opinion that the continued existence of the body would be prejudicial to the security and defence of the Commonwealth or to the execution or maintenance of the Constitution or of the laws. The section contains two further sub-sections; they deal with the hearing of the appeal and give directions as to the right or duty of the appellant to begin and as to the testimony and presumptions. (at p176)

5. In stating the kinds of communist connection or affiliation which will bring a body within the application of s. 5, sub-s. (1) embraces two periods; a period of some two years and five months before the operation of the Act, beginning on 10th May 1948 and ending on the day when the Act was assented to and took effect, viz. 20th October 1950, and secondly the period of its operation prospectively. The date 10th May 1948 is chosen because the national congress of the Australian Communist Party was then held and the constitution adopted. It is enough if the conditions the sub-section specifies are satisfied after the Act comes into operation or if they were satisfied at some time in the antecedent period of two years and five months. The conditions which sub-s. (1) specifies consist of four alternative sets providing four tests, fulfilment of any one of which will suffice. The first set of the specified conditions upon which the application of s. 5 depends is that the body either is or purports to be affiliated with the Australian Communist Party or at any time during the antecedent period was or purported to be so affiliated. There is no definition of the rather vague word "affiliated", but in Bridges v. Wixon (1945) 326 US 135, at p 143 (89 Law Ed 2103, at p 2109) the Supreme Court of the United States said of the word when used in a not very different context that it imported less than membership and more than sympathy and that acts tending to show affiliation must be of a quality indicating adherence to or furtherance of the purposes of the proscribed body as distinguished from mere co-operation with it in lawful activities. The second alternative set of the specified conditions takes membership of the Australian Communist Party or of its central or governing committee by a majority of members of the body to which s. 5 is to apply or by a majority of the committee of management of the body or other governing body and makes any of such descriptions of common membership a test of the application of s. 5. Again it is enough if the required situation existed at any time after the Act begins to operate or at any time within the antecedent period. The third in the list of conditions upon which the application of s. 5 depends relates to the support of communist doctrine or the spreading of communism by the body. It will come within s. 5 if the required support of doctrine is given or the spreading of communism is done after the commencement of the Act or at any time within the antecedent period. The required support may take the form of the advocacy or support by the body either of the objectives the policies the teachings or the practices of communism. The communism must be as expounded by Marx and Lenin. Theoretically there may be a difficulty in saying how the provision applies if the body subscribes to some but not to all of the objectives, policies, teachings or practices, but probably it has no practical importance. The fourth alternative set of conditions specified depends upon the communistic character of the persons who govern the policy of the body to which s. 5 is to apply and the use they make of the body. It is enough that the policy of the body is either directed, controlled, shaped or influenced wholly or substantially by them. But their communistic character must consist in membership of the Australian Communist Party or in being persons who are communists in the sense that they support or advocate the objectives, policies, teachings, principles or practices of communism as expounded by Marx and Lenin (s. 3(1), s.v. communist). Again it is only necessary that the character of a member of the party or communist as defined should exist at some time after the commencement of the Act or at some time within the same antecedent period. But there is an additional requirement, namely that they must make use of the body as a means of advocating propagating or carrying out the objectives, policies, teachings, principles or practices of communism as expounded by Marx and Lenin. This appears to mean that as at the time of the application of the section to the body the persons must make use of the body for the purpose stated. (at p178)

6. It will be seen from the foregoing account of s. 5 that it provides tests of communistic connection or affiliation which must be satisfied in fact before the body becomes liable to be declared unlawful and it prescribes the manner in which the body may apply to the courts if it denies that it possesses a character fulfilling the tests. Section 23(3) requires that such an application should be dealt with by a single judge whose decision should be final and conclusive, but that is not presently important. In sharp contrast with this objective nature of the tests for the application of s. 5 to the body the actual decision of the question whether the body ought to be considered unlawful and dissolved accordingly is left completely to the final determination of the Executive. Being satisfied that s. 5 applies to the body, a matter which the body can submit to a single judge for review, the Governor-General in Council by sub-s. (2) is then to be satisfied of what may be called a compound proposition and thereupon under the word "may" is to exercise a discretion as to declaring the body unlawful. The compound proposition is expressed indefinitely and covers a large field with no certain boundaries. It contains a number of alternatives. The proposition is that the continued existence, that is the continuance of the association, of the body of persons would be prejudicial to the security and defence of the Commonwealth or to the execution or maintenance of the Constitution or of the laws of the Commonwealth. (at p178)

7. Two things appear to me to be clear about this. The first is that it leaves to the opinion of the Governor-General in Council every element involved in the application of the proposition. Thus it would be for the Governor-General in Council to judge of the reach and application of the ideas expressed by the phrases "security and defence of the Commonwealth", "execution of the Constitution", "maintenance of the Constitution", "execution of the laws of the Commonwealth", "maintenance of the laws of the Commonwealth" and "prejudicial to". In the second place the expression by the Governor-General in Council of the result in a properly framed declaration is conclusive. In the case of the Governor-General in Council it is not possible to go behind such an executive act done in due form of law and impugn its validity upon the ground that the decision upon which it is founded has been reached improperly, whether because extraneous considerations were taken into account or because there was some misconception of the meaning or application, as a court would view it, of the statutory description of the matters of which the Governor-General in Council should be satisfied or because of some other supposed miscarriage. The prerogative writs do not lie to the Governor-General. The good faith of any of his acts as representative of the Crown cannot be questioned in a court of law (Duncan v. Theodore (1917) 23 CLR 510, at p 544 : cf. (1919) AC 696 at p 706)) An order, proclamation or declaration of the Governor-General in Council is the formal legal act which gives effect to the advice tendered to the Crown by the Ministers of the Crown. The counsels of the Crown are secret and an inquiry into the grounds upon which the advice tendered proceeds may not be made for the purpose of invalidating the act formally done in the name of the Crown by the Governor-General in Council. It matters not whether the attempt to invalidate an order, proclamation or other executive act is made collaterally or directly. One purpose of vesting the discretionary power in the Governor-General is to ensure that its exercise is not open to attack on such grounds and the inference that such a purpose animates sub-s. (2) is confirmed by sub-ss. (4), (5) and (6) giving as they do a special and guarded means of obtaining relief from the conclusion of the Governor-General in Council that the communistic connections of the body would bring it within the application of s. 5 and from that conclusion only. (at p179)

8. As part of an argument that sub-s. (2) was in itself based upon the legislative power with reference to defence either alone or together with that enabling the suppression of subversive designs and combinations, two contentions were advanced as to the meaning and effect of sub-s. (2). The first was that it did not intend to make the opinion of the executive decisive as to all the elements making up the compound proposition sub-s. (2) contains, but that some of them must have an independent existence in fact. Unless, therefore, the facts existed independently of the opinion the declaration would be ineffectual. (at p179)