Polites v Commonwealth Kandiliotes v Commonwealth

70 CLR 60

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(Decision by: Latham CJ)

Polites
v Commonwealth Kandiliotes v Commonwealth

Court:

Judges:
Latham CJRich J
Starke 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

Hearing date: MELBOURNE 8 March 1945; 9 March 1945; 10 April 1945;
Judgment date: 10 April 1945

Melbourne

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Decision by:
Latham CJ

These demurrers raise the question of the validity of reg. 7 of the National Security (Aliens Service) Regulations as appearing in Statutory Rules 1942 No. 39, and of Part II. of the National Security (Aliens Service) Regulations as enacted in substitution for that regulation by Statutory Rules 1943 No. 108.

The plaintiff Speros Polites is a national of the Kingdom of Greece, and is 29 years of age. A notice was served upon him in pursuance of the first-mentioned regulation requiring him to serve in the military forces of the Commonwealth. The plaintiff in the second action, Orpheus Kandiliotes, is also a Greek national, and is 25 years of age. He was required to serve with the military forces of the Commonwealth by a notice given to him in pursuance of reg. 6 contained in Part II. of the later Regulations mentioned. The two sets of regulations are substantially identical. They purport to authorize an area officer to serve a notice requiring any male allied national, with certain exceptions which are not material to the present cases, to serve in the military forces of the Commonwealth. When a notice under the Regulations has been served, the allied national becomes subject to the Defence Act and any regulations in force thereunder-under the earlier regulation "as if" (he) "were" (a) "British subject," and under the later regulation "to the same extent as if he were serving under Part IV. of" the Defence Act.

"Allied national" is defined in both sets of regulations as meaning "a national of any country which is or may be allied or associated with His Majesty in any war in which His Majesty is or may be engaged."

Under the provisions of these Regulations, the service of a notice by an area officer imposes an obligation of military service upon certain aliens. It is argued for the plaintiffs, first, that there is a general rule of construction of statutes according to which, unless the contrary intention is clear, it is to be presumed that they do not violate any recognized rule of international law; secondly, that there is a well-established rule of international law that aliens cannot be compelled to serve in the military forces of a foreign State in which they happen to be; thirdly, that the Regulations are made under a provision in the National Security Act 1939 as amended, namely s. 13A, which refers to persons generally; that these general words must be limited in some way, as otherwise they would apply to all persons in the world, and that one proper limitation is to be found in the recognition and application of the rule of international law to which reference has been made. By this course of reasoning, it is sought to establish the propositions that the Regulations are a clear breach of an established rule of international law, and that s. 13A of the National Security Act should be construed as not intended to authorize such a violation of established principle.

The first proposition for which the plaintiffs contend is well established by many authorities. Perhaps it is most conveniently stated in Bloxam v Favre ^[F1] , at p. 107, where Sir James Hannen approved the statement in Maxwell on Interpretation of Statutes, 8th ed. (1937), p. 130, that "every statute is to be so interpreted and applied, as far as its language admits, as not to be inconsistent with the comity of nations or with the established rules of international law." See also Craies on Statute Law, 4th ed. (1936), p. 379, and Oppenheim, International Law, 5th ed. (1937), vol. I., p. 37.

But all the authorities in English law also recognize that courts are bound by the statute law of their country, even if that law should violate a rule of international law: See, e.g., Croft v Dunphy ^[F2] , at pp. 163, 164 where, after reference to the well-known authorities of R. v Burah ^[F3] and Hodge v The Queen ^[F4] , establishing that Dominion Parliaments have, within the limits of their powers, authority as plenary and as ample as that of the Imperial Parliament, it is said that "legislation of the Imperial Parliament, even in contravention of generally acknowledged principles of international law, is binding upon and must be enforced by the Courts of this country, for in these Courts the legislation of the Imperial Parliament cannot be challenged as ultra vires," that is, as ultra vires by reason of being inconsistent with international law.

It was not really argued, and it could not, I think, successfully be contended, that the powers conferred on the Commonwealth Parliament itself by the Constitution, s. 51 (vi.), relating to naval and military defence, and s. 51 (xix.), "naturalization and aliens," were limited in any other manner than by the description of the subject matter. The Commonwealth Parliament can legislate on these matters in breach of international law, taking the risk of international complications. This is recognized as being the position in Great Britain-cf. Craies on Statute Law, 4th ed. (1936), p. 393: "Each State can, at its own international risks, reject the opinions of other States as to international law." The position is the same in the United States of America: See United States v Ferreira ^[F5] , Botiller v Dominguez ^[F6] ; Hijo v United States ^[F7] . And see Willoughby on the Constitution of the United States, 2nd ed. (1929), vol. 2, pp. 1316 and following. It must be held that legislation otherwise within the power of the Commonwealth Parliament does not become invalid because it conflicts with a rule of international law, though every effort should be made to construe Commonwealth statutes so as to avoid breaches of international law and of international comity. The question, therefore, is not a question of the power of the Commonwealth Parliament to legislate in breach of international law, but is a question whether in fact it has done so.

The next step in the plaintiffs' argument depends upon the establishment of the proposition that there is a rule of international law which prevents a State from imposing an obligation of military service upon aliens resident within its territory. In order to establish this proposition, Mr. Phillips referred to the writings of jurists, to diplomatic practice, and, in particular, to the practice and the policy adopted by Great Britain. He clearly showed that there was a rule which prevented the imposition upon resident aliens of an obligation to serve in the armed forces of the country in which they resided, unless the State to which they belonged consented to waive this ordinarily recognized exemption. (No such consent is alleged in the present cases.) This rule, however, does not prevent compulsory service in a local police force, or, apparently, compulsory service for the purpose of maintaining public order or repelling a sudden invasion. Authority for these propositions is to be found in Oppenheim, International Law, 5th ed. (1937), vol. I., pp. 541, 542; Walker's Manual of Public International Law (1895), p. 47; Pitt Cobbett's Cases on International Law, 5th ed. (1937), vol. I., p. 203; Hall, Treatise on International Law, 8th ed. (1924), pp. 259, 260, where the distinction is drawn between the use of military forces for ordinary national or political objects and police action to preserve social order or to protect the population against an invasion by savages.

The proposition was also supported by reference to discussions which took place during the American civil war between Great Britain and the Confederate States: See Davis, Elements of International Law, 3rd ed. (1908,) pp. 154, 155, and Hall, Treatise on International Law, 8th ed. (1924), pp. 259, 260.

The Regulations which are challenged enforce ordinary military service without regard to any of the exceptions which have been suggested. The rule as to such military service is plain, even though there is some difference of opinion as to the extent of the right (internationally considered) to require aliens to perform police duties. The Regulations provide for compulsory service of aliens in Australian armed forces and place the aliens in the same position as British subjects in Australia. They must be held to be contrary to an established rule of international law.

The next question which arises is whether the National Security Act authorizes the making of regulations of this character. This is a question of the intention of Parliament, to be ascertained from the terms of the relevant legislation. The National Security Act, in its original form, contained in s. 5 provisions authorizing the making of regulations, inter alia, "(e) for requiring or authorizing any action to be taken by or with respect to aliens, and for prohibiting aliens from doing any act or thing." Section 5, sub-s. 2, provided: "Any provision of any regulation made under this section with respect to aliens may relate either to aliens in general or to any class or description of aliens." It was therefore clear that the Parliament contemplated the making of regulations thereunder which might be of a far-reaching kind-requiring or authorizing any action to be taken by or with respect to aliens. Thus regulations with respect to aliens were clearly within the contemplation of Parliament when the Act was passed.

Section 5 (7), however, provided that nothing in the section should authorize the imposition of any form of compulsory naval, military or air-force service, or any form of industrial conscription, or the extension of any existing obligation to render compulsory naval, military or air-force service. This provision imposed a limitation upon all the powers conferred by the section, including the power for making regulations requiring action to be taken by aliens under par. (e) of sub-s. 1. When the provisions in sub-s. 1 are examined, it is seen that the specific powers which are particularized, so far as they relate to persons as distinct from property, refer in par. (c) to alien enemies, in par. (e) to aliens, and in par. (f) to naturalized persons. The only other provision specifically relating to persons is par. (g), which authorizes the making of regulations requiring any person to disclose information in his possession as to any prescribed matter. A regulation made under par. (g) could not raise any question of compulsory naval, military or air-force service-to which sub-s. 7 applies. Thus sub-s. 7, referring specifically as it does to action in respect of persons, should be regarded as applying to action which might be required in respect of persons under regulations made under the preceding part of the section, and, therefore, to alien persons who are specifically referred to in the earlier part of the section.

The Defence Act at all relevant times has included the following provisions:"46. (1) The Governor-General may, in time of war, by proclamation, call out the Citizen Forces or any part thereof for war service," and s. 59, "All male inhabitants of Australia (excepting those who are exempt from service in the Defence Force) who have resided therein for six months and are British subjects and are between the ages of eighteen and sixty years shall, in time of war, be liable to serve in the Citizen Forces." The obligation in respect of naval, military or air-force training was limited by s. 125 to British subjects. The position, therefore, was that the Defence Act did not apply to aliens, and that, while s. 5 of the National Security Act gave large powers to make regulations with respect to aliens, sub-s. 7 of that section prevented the imposition upon them of any form of compulsory naval, military or air-force service.

By Act No. 44 of 1940, however, s. 13A was added to the National Security Act 1939. Section 13A is as follows:"13A. Notwithstanding anything contained in this Act, the Governor-General may make such regulations making provision for requiring persons to place themselves, their services and their property at the disposal of the Commonwealth, as appear to him to be necessary or expedient for securing 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: Provided that nothing in this section shall authorize the imposition of any form of compulsory service beyond the limits of Australia."

This was a general provision extending the regulation-making power conferred on the Governor-General by the Act "notwithstanding anything contained in this Act," and therefore notwithstanding s. 5 (7). Section 5 (7) prevented the making of regulations under the Act for military or industrial conscription. Section 13A expressly permitted the making of such regulations, in spite of the provision contained in s. 5 (7). It has already been said that s. 5 (7) operated to prevent aliens being conscripted. Section 13A removed this restriction and prima facie permitted aliens to be conscripted.

In this state of the law, the regulations which are now challenged were made. They make specific provision for the imposition in the case of certain aliens of compulsory military service.

Subsequently, the Defence (Citizen Military Forces) Act 1943 was passed. This Act defined "the South-Western Pacific Zone" and contained the following provision in s. 4:"Notwithstanding anything contained in the Defence Act 1903-1941 or in the National Security Act 1939-1940, any member of the Citizen Military Forces may be required to serve in such area contained in the South-Western Pacific Zone as is specified by proclamation, and the power to make regulations in pursuance of those Acts, or either of them, shall extend to the making of regulations in relation to any such member so required to serve in that area, and to the service of the member in that area."

Under this provision, any member of the Citizen Military Forces might be required to serve in the South-Western Pacific Zone. At the time when this Act was passed, the National Security (Aliens Service) Regulations, Statutory Rules 1942 No. 39, were in operation, and those regulations provided that, when a notice was served by an area officer, the alien upon whom it was served should be deemed to be enlisted in the Citizen Military Forces. Thus, when this Act was passed in 1943, Parliament must be presumed to have been aware that its own legislation (by way of regulations made under the National Security Act) provided that certain aliens were members of the Citizen Military Forces. Prima facie, therefore, the 1943 Act applied to those aliens so that they might be required to serve in the South-Western Pacific area. Further, s. 4 of that Act specifically provides that the power to make regulations in pursuance of the Defence Act or the National Security Act shall extend to the making of regulations in relation to any such member so required to serve in the area and to the service of the member in the area. This provision extends what may be called the conscription power contained in s. 13A. It should, in my opinion, be construed as intended to apply to all the persons who were at that time legislatively treated as being subject to that power.

I agree that s. 13A must be limited in its operation: for example, it does not refer to all persons everywhere in the world, or to all property everywhere in the world. But, for the reasons which I have stated, in my opinion the Commonwealth Parliament by s. 13A of the National Security Act intended to authorize the Governor-General to make regulations under which the service of any person in Australia, including aliens, may be compelled for defence purposes. It is not for a court to express an opinion upon the political propriety of this action. It is for the Government of the Commonwealth to consider its political significance, taking into account the obvious risk of the Commonwealth having no ground of objection if Australians who happen to be in foreign countries are conscripted for military service there. Parliament has, in my opinion, placed upon the Executive the responsibility of making agreements with other countries which will remove international difficulties or of accepting the risk of such difficulties being created.

In my opinion, the regulations are valid and the demurrers should be allowed. As the decision upon the demurrers disposes of all the issues in the actions, there should be judgment in the actions for the defendants.