Australian Communist Party V Commonwealth - Decision

Decision

Over the sole dissent of the Chief Justice, John Latham the Act was invalidated. Five of the remaining Justices gave similar reasons.

All seven judges accepted that the Commonwealth had legislative power to deal with subversion (although they differed as to the precise location of such a power) and that it had validly done so in the Crimes Act 1914 (Cth). Unlike the challenged law, the sedition provisions left questions of guilt to the courts to determine through criminal trials.

However, the Communist Party Dissolution Act 1950 (Cth) had simply declared the Party guilty and had authorized the executive government to 'declare' individuals or groups of individuals. The validity of the law depended on the existence of a fact (a constitutional fact) which the law asserted to be a fact whether or not there actually was any factual connection between those bodies or persons and subversion. "The Constitution does not allow the judicature to concede the principle that the Parliament can conclusively "recite itself" into power." In the metaphor used by Fullagar J, "a stream cannot rise higher than its source". "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.".

This reasoning is predicated on the notion of "judicial review", sometimes referred to as the principle in Marbury v Madison in recognition of its origins in the federal system of the United States of America. In performing the function of judicial review, the judges insist that their role is judicial and not political. In a well-known passage, Justice Wilfred Fullagar expressed this as follows:

"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 (1803) 1 Cr. 137 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 (1803) 1 Cr. 137, 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 (1803) 1 Cr. 137 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."