Australian Communist Party v Commonwealth (1951) 83 CLR 1

Facts

The Communist Party Dissolution Bill was introduced into the House of Representatives by prime Minister Menzies on 27 April 1950.
The Bill’s operative provisions fell into three categories:
- The Australian Communist Party was declared an unlawful association and abolished. Its property was to be confiscated without compensation.
- There were very limited safeguards against “affiliated organisations [of the Communist Party]” and unlawful declarations that an organisation was affiliated.
- Individuals could be “declared” if the Governor-General was satisfied that, at any time after 10 May 1948, the individual was a communist or an officer or member of the Party and was engaged, or was “likely to engage” in activities prejudicial to the security and defence of Australia.
The Bill was given royal assent on 20 October 1950 (Communist Party Dissolution Act 1950 (Cth) (the Act)).

Issues

Was the Act invalid?

Held

By a majority of six to one (Latham CJ dissenting) the High Court of Australia held that the Act was invalid.
The Commonwealth has legislative power to deal with subversion, however the Act had declared the Party guilty and had authorised the executive government to “declare” individuals or groups of individuals.
The validity of a law or administrative act done under a law cannot depend on the opinion of the lawmaker.
The Act does not prescribe any rule of conduct or prohibit specific acts or omissions by way of attack or subversion, but deals directly with bodies and persons who are named and described.
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.

Quotes

“The Constitution does not allow the judicature to concede the principle that the Parliament can conclusively “recite itself” into power.”

(McTiernan J)

“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.”

(Fullagar J)