Adelaide Company of Jehovah's Witnesses Incorporated v Commonwealth [1943] HCA 12

Adelaide Company of Jehovah's Witnesses Incorporated v Commonwealth [1943] HCA 12 - HCA 1943 case summary — Zoe

[95]

The result has been that the Supreme Court of the United States has refused to regard the provisions relating to freedom of religion, freedom of assembly and freedom of speech as involving the invalidity of all laws which in any degree interfere with such freedom. For example, the right of assembly is a right to peaceable assembly, and not a right to organize or promote riots (De Jonge v. Oregon (2)). So also in Stromberg v. California (3) it was held that the liberty of the person which is protected under the due process clause of the American Constitution, while it embraces the right of free speech, does not protect seditious speech: see the report (4). In Schneider v. State (Town of Irvington) (5) it was held that, while the municipal authorities may control the streets in order to keep peace and order therein, they may not exercise their powers so as to interfere with a peaceable and non-obstructive distribution of literature in the streets: See also Cantwell v. Connecticut (6). In this case the power to regulate the conduct of citizens in the public streets was recog- nized, but it was said with reference to religious freedom and liberty of speech and of the press that " in every case the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom." This statement frankly recog- nizes that the general protection given by the Constitution to the freedom in question leaves it to the court to determine whether a particular measure which in fact limits complete freedom involves an " undue " infringement of that freedom. It is upon this principle that many cases have been decided in the American Courts. Willis, in his work on the American Constitution, states the effect of the constitutional guarantee by saying (p. 502) that its real purpose is to prevent religious persecution, but the cases show that "the Con- stitution does not protect religious liberty in the broad sense." It does not protect unsocial actions (p. 504).

[213]

been furnished by my brother Starke, from whom the case stated comes, with a precise account of the beliefs professed by the individuals who form the incorporated company - the plaintiff in this action. It is to the facts so stated that we must apply s. 116. We must take the Regulations, assume that in other respects they are valid, and see whether the operation of those Regulations on those facts would contravene any of the prohibitions contained in s. 116. The only part of those prohibitions which appear to me to be relevant is that which expressly prevents the Commonwealth from making a law prohibiting the free exercise of any religion. The rest of the provisions of the section seems to be irrelevant. As to the relevant part of the prohibitions I cannot believe that the suppression of the plaintiff corporation prohibits the free exercise of any part of the religious faith ascribed by the case stated to the individual corpor- ators. Sir William Holdsworth, History of the Law, vol. vut., pp- 402-420, has traced the development of the law towards religious toleration, and it may be said that religious liberty and religious equality are now complete (Maitland, Constitutional History of England, p.520). This, however, does not afford an unlimited licence to propagate or disseminate subversive doctrines. In this connec- tion I would adapt some passages from the speech of Lord Swmner in Bowman v. Secular Society Ltd. (1): "The words, as well as the acts, which tend to endanger society differ from time to time in proportion as society is stable or insecure in fact, or is believed by its reasonable members to be open to assault. The question whether a given opinion is a danger to society is a question of the times and is a question of fact. Society has the right to protect itself by process of law from the dangers of the moment, whatever that right may be. The attitude of the law both civil and criminal towards all religions depends fundamentally on the safety of the State." Any regulations, therefore, which empower the Government to 'prevent persons or bodies from disseminating subversive principles or doctrines or those prejudicial to the defence of the Commonwealth or the efficient prosecution of the war do not infringe s. 116. The peace, good government and order of the Commonwealth may, be protected at the same time as the freedom of religion is safeguarded. Freedom of religion is not absolute. It is subject to powers and restrictions of government essential to the preservation of the community. Freedom of religion may not be invoked to cloak and dissemble subversive opinions or practices and operations

[221]

The National Security Act 1939-1940 authorizes the Governor- General in Council (Acts Interpretation Act 1901-1941, s. 17, " Governor-General ") to make regulations for securing the public safety and defence of the Commonwealth. The regulations author- ized "are . . . of the widest possible character and may affect not only the liberty but also the property of all subjects." Extra- ordinary powers "are given because the emergency is extraordinary," but they " are limited to the period of the emergency" (Liversidge v. Anderson (5); Reference re Regulations re Chemicals (6) ). If the power is abused or misused, the only remedy is by political action, and not by appeal to the courts of law (R. v. Halliday (7); Victorian Stevedoring & General Contracting Co. Pty. Ltd. and Meakes v. Dignan (8)). Still the Governor-General is a subordinate authority, and can no more transcend the powers contained in the Constitution than can the Parliament itself. Consequently the regulations must be "with respect to" defence: they must in substance relate to defence or, to use the words of the Chief Justice, have a "real connection with defence" (Victoria v. The Common- wealth (9)). No general test applicable to all cases can be laid down. The true character, object and effect of the legislation or regulation can only, as has been said, be ascertained from an examination of the legislation or the regulation in its entirety. Moreover, the Governor-General cannot exceed the powers conferred upon him by the National Security Act 1939-1940 itself, which, as already noticed, are limited to regulations for securing the public safety and defence of the Commonwealth. And this, I think, may be asserted, that no regulation made by a subordinate authority, whether that authority be the Governor-General in Council or other public authority, can be within power if arbitrary or capricious. In other words, if the regulation involved such oppressive or gratuitous interference with the rights of those subject to them as could find no justification in the minds of reasonable men, the court might well say: " Parliament never intended to give authority to make such rules." A regulation of that character would not be a law or a regulation "with respect to defence" or for securing the public

[272]

free exercise of religion for the legislation of the States to have included laws (as in fact it did) making polygamy or murder a crime, although it was still a tenet of some religious beliefs to practice polygamy or human sacrifice. Such laws would be classified as ordinary secular laws relating to the worldly organization of the community, even if their indirect effect might be to prevent some religious sects indulging in practices which in the ordinary popular acceptation would be regarded as crimes and as having no connection' with any observance which an enlightened British community would consider to be an exercise of religion. The tight to the free exercise of religion conferred by the Constitution postulates a continuous right to such freedom in a Commonwealth which will survive the ordeal of war. When, therefore, the safety of the nation is in jeopardy, so that the right to such free exercise can only survive if the enemy is defeated, laws which become necessary to preserve its existence would not be laws for pro- hibiting the free exercise of religion. There are many conceivable circumstances in war-time in which it might be necessary for the military authorities to take physical possession even of churches and other buildings where religion is practised, and a law enabling the military authorities to do so would not be a law prohibiting the free exercise of religion. It is impossible, in my opinion, to impute to the framers of the Constitution an intention that the phrase " the free exercise of religion " should confer an absolute right to propagate a belief that the system of government created by the Constitution was of a satanic nature, the functioning of which, in spheres which the common sense of the community generally would regard as entirely secular, was not to be judged on its merits or demerits as worldly legislation, but to be condemned in every instance as an emanation of Satan. The easy toleration of a British community often permits bodies with such beliefs to flourish in its midst im times of peace, although it is the usual practice of such bodies to accept the benefits but refuse to shoulder the responsibilities incidental to citizenship in such a community. But the activities of such bodies can be subversive of good government even in peace- time, and in war-time can become a serious menace. If the Regula- tions only conferred such powers as were reasonably required to prevent bodies disseminating principles and doctrines prejudicial to the defence of the Commonwealth during the war, they could not be impeached under s, 116, even if they interfered incidentally with activities that some persons in the community considered to be the free exercise of religion, because in its popular sense such principles and doctrines would not be considered to be religion, but subversive

[286]

This brief analysis of the contents of these regulations is sufficient to show that the purpose of the enacting authority was, by the mere force of an order made under reg. 3, instantly to dissolve the body and to place the disposal of the whole of its assets and certain assets of third parties in the absolute discretion of the Attorney-General, to vest in police officers and the Attorney-General judicial powers not subject to appeal of determining the ownership of property, and to place a complete veto upon the dissemination of any doctrines or principles whatever advocated by a body which has been declared to be unlawful. The definition of " unlawful doctrines" includes any doctrines or principles which were advocated by a body which has been declared to be unlawful, and any doctrines or principles whatsoever which are prejudicial to the defence of the Common- wealth or the efficient prosecution of the war. Mr. Weston sub- mitted that on its true construction this definition should be read so that the words, "which are prejudicial to the defence of the Com- monwealth or the efficient prosecution of the war », govern the whole of the preceding words of the definition. On this construction the first branch of the definition would read : " any doctrines or principles which were advocated by a body which has been declared to be unlawful which are prejudicial to the defence of the Commonwealth or the efficient prosecution of the war." It would be included in the second branch of the definition and so would be tautologous. But the definition appears to me to include two distinct classifica- tions of unlawful doctrines, the one a more definite class consisting of those doctrines which were advocated by a body which has been declared to be unlawful, and the other a more indefinite class con- sisting of any doctrines which are prejudicial to the defence of the Commonwealth or the prosecution of the war whether advocated by an unlawful body or not. Regs. 7 and 8 would operate whether

[292]

As to the validity of regs. 3 to 8 considered as a whole. There can be no doubt, in my opinion, that the Commonwealth is justified under the defence power in times of war in taking possession of and con- trolling during the war the property of organizations whose activities are prejudicial to the defence of the Commonwealth or the prosecu- tion of the war, in confiscating any literature which is being used to promote subversive doctrines, and in preventing such bodies from holding meetings ; but the vice of these regulations is that the consequences to a body, to those interested in the property of a body as shareholders and creditors, and to third persons which flow from the declarations are so drastic and permanent in their nature that they exceed anything which could conceivably be required in order to aid, even incidentally, in the defence of the Commonwealth. ven if a narrow construction could be placed on the definition of " unlawful doctrines," in which event regs. 7 and 8 might be valid, regs. 3 to 6B would still be objectionable. The Governor-General could form an opinion that the existence of a body was prejudicial to the defence of the Commonwealth or to the efficient prosecution of the war on an almost indefinite number of wholly undefined grounds. To quote the words of Lord Wright in Liversidge's Case (2): "There is no hard and fast issue of fact, such as there is in the trial of a specific charge on indictment." It could be an offence for a corporation to occupy too many buildings or to employ too many employees. The corporation is not told what the prejudicial conduct consists of or given an opportunity of rectifying it. The declaration can result in the forfeiture of the whole of the property of the corporation to the Crown in destruction of the rights of every person interested in the property, including even creditors who have bona fide dealt with the body in the ordinary course of business, and in a complete overriding of State laws not only relating to events in which the corporation can be dissolved but to the right of the creditors and the shareholders upon a dissolution. None of these creditors may have been aware of any conduct of the corporation which could

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Judgment (311 paragraphs)