Polites v Commonwealth Kandiliotes v Commonwealth
70 CLR 60(Decision by: Rich J)
Polites
v Commonwealth Kandiliotes v Commonwealth
Judges:
Latham CJ
Rich JStarke J
Dixon J
McTiernan J
Williams 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
Decision by:
Rich J
The demurrers in these cases raise the question whether the plaintiffs are required to serve in the military forces of the Commonwealth. The regulations which call for construction are reg. 7 of the National Security (Aliens Service) Regulations, Statutory Rules 1942 No. 39, and reg. 6 of the amended National Security (Aliens Service) Regulations, Statutory Rules 1943 No. 108. These regulations depend for their validity on s. 13A of the National Security Act 1939-1943. The contention put forward is that, although this section, which qualifies the restriction contained in s. 5 (7) (a), is expressed in terms wide enough to compel the service required on the part of the plaintiffs, it should be construed so as not to involve a breach of a recognized rule of international law and an "international wrong" on the part of the Commonwealth Government. There is, it is said, a presumption against construing a statute so as to contravene a rule of international law. In these days, I would remark in passing that it would be difficult to find all the States agreeing on questions of international law. But, assuming that there is an ascertained and settled rule that a country may not compel resident aliens to serve and fight in its armies in a war in which it is engaged, I am unable to construe s. 13A as subject to any such rule. The purpose of the section is to vest in the Executive unqualified power to require "persons to place themselves, their services and their property at the disposal of the Commonwealth" in order to secure "the public safety, the defence of the Commonwealth and the Territories of the Commonwealth, or the efficient prosecution of any war in which His Majesty is or may be engaged." Nor can I construe the legislative powers of the Commonwealth as anything but as plenary and ample within their ambit "as the Imperial Parliament in the plenitude of its power possessed and could bestow" (Hodge v The Queen [F8] , at p. 132).
For these reasons, I am of opinion that the regulations in question are valid and that the demurrers should be allowed.