Australian Communist Party v Commonwealth [1951] HCA 5

High Court of Australia Latham C.J. Dixon, McTiernan, Williams, Webb, Fullagar and Kitto JJ. Australian Communist Party v Commonwealth [1951] HCA 5

ORDER Questions in case answered as follows:—

1. (a) No.

1. (b) No.

2. Yes—wholly invalid.

Defendants to pay costs of plaintiffs Gibson and Campbell in action No. 11 of 1950 and of plaintiffs in the other actions in which this case has been stated. Case remitted to Dixon J.

Cur. adv. vult.

The following written judgments were delivered:—

March 9 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 1 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.