Polites v Commonwealth Kandiliotes v Commonwealth
70 CLR 60(Judgment by: McTiernan J)
Polites
v Commonwealth Kandiliotes v Commonwealth
Judges:
Latham CJ
Rich J
Starke J
Dixon J
McTiernan JWilliams J
Subject References:
Constitutional law
Construction of statutes to prevent conflict with rules of international law
Act authorising conscription of persons for defence purposes
Legislative References:
National Security Act 1939 No 15 - ss 5, 13A
National Security (Aliens Service) Regulations 1942 SR No 39 - r 7
Judgment date: 10 April 1945
Melbourne
Judgment by:
McTiernan J
I agree that the demurrers in each case should be allowed.
Section 13A did, in my opinion, upon its true construction authorize the Governor-General to make reg. 7 of the National Security (Aliens Service) Regulations (Statutory Rules 1942 No. 39) and Part II. of the National Security (Aliens Service) Regulations (Statutory Rules 1943 No. 108).
These regulations provide for the compulsory enrolment of aliens in the armed forces organized by the Commonwealth to wage war against its external enemies. This enrolment of aliens is not permissible by the rules of international law, as propounded in works of high authority, governing the responsibilities of aliens for the defence of the State in which they are resident: See Hall, Treatise on International Law, 8th ed. (1924), p. 260.
There is a presumption that the legislature does not intend to violate by a statute any established rule of international law. But the presumption does not govern the construction of a statute if its language shows that it was not the intention of the legislature that the statute should be in harmony with international law: See Maxwell on Interpretation of Statutes, 7th ed. (1929), pp. 127, 131. I think that the presumption does not apply here. The general term "persons", used in s. 13A, plainly includes at least aliens within the jurisdiction of the Commonwealth, besides persons other than aliens. In this context, the word "persons" does not reasonably admit of being narrowed in construction to mean only persons other than aliens.
It was also argued that, upon this construction of s. 13A, the section is beyond the legislative powers of the Commonwealth. I cannot agree with this argument. Subject to the Constitution, the legislative powers under s. 51 (vi.) to make a law answering the description of a law with respect to "defence" is plenary. The power is not subject to the rules of international law governing the responsibilities of aliens for the defence of the State in whose territory they are resident (Farey v Burvett [F10] , at pp. 440, 452; Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (Engineers' Case) [F11] ; Hodge v The Queen [F12] ).