Polites v Commonwealth Kandiliotes v Commonwealth
70 CLR 60(Judgment by: Dixon J)
Polites
v Commonwealth Kandiliotes v Commonwealth
Judges:
Latham CJ
Rich J
Starke J
Dixon JMcTiernan 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
Judgment by:
Dixon J
It is a rule of construction that, unless a contrary intention appear, general words occurring in a statute are to be read subject to the established rules of international law and not as intended to apply to persons or subjects which, according to those rules, a national law of the kind in question ought not to include.
In reliance upon this rule, the plaintiffs contend that s. 13A of the National Security Act should be read as if the power to make regulations thereby conferred were subject to the qualification that they should be consistent with the settled rules of public international law.
On this footing, the second plaintiff maintains that s. 13A would not authorize Part II. of the National Security (Aliens Service) Regulations because that Part assumes to impose upon male allied aliens the same liability to serve in the Citizen Military Forces as falls upon a British subject. A consequence of the liability to serve so imposed is that, by virtue of s. 4 of the Defence (Citizen Military Forces) Act 1943, the alien, in common with British subjects, is required to serve against the enemy anywhere he may be sent within the South-Western Pacific Zone. This, it is said, is contrary to the recognized international rule which restricts the right of a country to compel aliens within its borders to bear arms to the purpose of maintaining internal order or defending the community against savage or uncivilized assailants threatening its existence. The rule does not, speaking generally, allow one civilized nation at war with another member of the society of nations to compel the nationals of a third country, without its consent, to fight in that war. The rule is formulated by Hall, Treatise on International Law, 8th ed. (1924), s. 61, pp. 260, 261, in a manner based upon Bluntschli and accepted by Westlake, International Law, 2nd ed. (1910), Part I., Peace, p. 218.
In my opinion, s. 13A of the National Security Act should not be read subject to the restriction contended for. It is not a provision directly prescribing what the individual must do. It is concerned with the power of the Executive. Its purpose is to clothe the Executive with the most ample and complete authority to require by regulations persons to place themselves and their property at the disposal of the Government for securing the public safety, the defence of the Commonwealth and the efficient prosecution of the war. It was based on the United Kingdom Emergency Powers (Defence) Act 1940 passed on 22nd May 1940 in a then unexampled emergency. The Commonwealth enactment was passed on 21st June 1940, immediately after the fall of France. Country after country had been occupied by Germany. There was general confusion as to the governments in exile of these countries and as to the position of their nationals outside the territories occupied. The British Commonwealth was confronted with a danger that could only be met by the use of every available resource and by an unparalleled effort. No one could foresee what course the war would take next and the legislation was the consequence of a series of rapid changes in the allied fortunes. The relations with other nationals and aliens who were within, or might afterwards come to, the Commonwealth were peculiarly the care of the Executive Government. In confiding to the Executive so large a portion of the legislative power over defence in such circumstances, the Parliament might well trust it to exercise the authority bestowed in accordance with what was right internationally. The conditions obtaining in the international world were extraordinary and the responsibility for dealing with them rested upon the Executive.
Having regard to the circumstances and to the subject matter, it would, I think, be artificial and unreal to restrict the mere grant of power contained in s. 13A by an implication founded upon the presumption to which the rule of construction gives effect.
The contention that s. 51 (vi.) of the Constitution should be read as subject to the same implication, in my opinion, ought not to be countenanced. The purpose of Part V. of Chapter I. of the Constitution is to confer upon an autonomous government plenary legislative power over the assigned subjects. Within the matters placed under its authority, the power of the Parliament was intended to be supreme and to construe it down by reference to the presumption is to apply to the establishment of legislative power a rule for the construction of legislation passed in its exercise. It is nothing to the point that the Constitution derives its force from an Imperial enactment. It is none the less a Constitution.
In my opinion, Part II. (reg. 6) of the National Security (Aliens Service) Regulations is valid and so is the corresponding previous regulation.
For the foregoing reasons, I think that the demurrers should be allowed.