Polites
v Commonwealth Kandiliotes v Commonwealth

Judges: Latham CJ
Rich 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

Melbourne

Judgment by:
Williams J

These two demurrers, which were argued together, raise the important question whether the plaintiffs, who are Greek nationals resident in Australia, are liable for compulsory military service in the Citizen Military Forces of the Commonwealth as if they were British subjects. The only distinction between the two actions is that, in one case, the plaintiff was required to enlist and serve in these forces under reg. 7 of the National Security (Aliens Service) Regulations comprised in Statutory Rules 1942 No. 39, gazetted on 3rd February 1942, while the other plaintiff was required to serve in these forces under reg. 6 of the amended National Security (Aliens Service) Regulations comprised in Statutory Rules 1943 No. 108, gazetted on 3rd May 1943. These regulations clearly empower the area officers concerned to compel Greek nationals to serve in the military forces, so that the real question is whether they are valid.

It is admitted that s. 13A of the National Security Act 1939-1943 is the only source of authority. This section is in the following terms:"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."

It is conceded that, read literally, the section, which contains the most general words, is wide enough for the purpose. But it is submitted that there is an accepted rule of public international conduct, evidenced by international treaties and conventions, authoritative textbooks and practice, having the general hallmarks of assent and reciprocity (per Lord Macmillan in Compania Naviera Vascongado v S.S. "Cristina" ^[F13] , at p. 497) that any nation, when at war, will not compel the nationals of another State who are within its jurisdiction to enlist and serve in its armed forces. As at present advised, it appears to me that the treaties and conventions, authoritative textbooks and practice to which we were referred by Mr. Phillips are sufficient to establish the rule of conduct in question.

The rule is, I think, correctly stated in article 5 of Project 111 of the International Commission of Jurists, relating to the status of aliens published in the American Journal of International Law, vol. 23 Supplement, (1929), p. 234: "Foreigners can not be obliged to perform military service, but those foreigners who are domiciled, unless they prefer to leave the country, may be compelled, under the same conditions as nationals, to perform police, fire-protection, or militia duty for the protection of the place of their domicile against natural catastrophes or dangers not resulting from war."

It is clear that such a rule, when it has been established to the satisfaction of the courts, is recognized and acted upon as part of English municipal law so far as it is not inconsistent with rules enacted by statutes or finally declared by the courts (Chung Chi Cheung v The King ^[F14] , at p. 168).

As a corollary, there is a rule of construction that, in the interpretation of statutes, the courts will presume, so far as the language admits, that Parliament did not intend that they should operate in derogation of such a rule, and will limit the scope of general words so as to give effect to the presumption (Bloxam v Favre ^[F15] , at p. 107 (affirmed Bloxam v Favre ^[F16] ); Colquhoun v Brooks ^[F17] , at pp. 57, 58; R. v 30th Battalion Middlesex Regiment; Ex parte Freyberger ^[F18] , at p. 132; Mortensen v Peters ^[F19] ; Barcelo v Electrolytic Zinc Co of A/asia Ltd ^[F20] , at pp. 423, 424).

The crucial question in the present case is, therefore, whether, in the light of the circumstances in which s. 13A was enacted and of the scope and purpose of the National Security Act to be gathered from its provisions as a whole, the language of the section is such that the general words can be construed in this limited manner, or whether it does not sufficiently appear that Parliament intended to confer upon the Executive complete authority to exercise the defence power for the purposes and subject only to the express limitations stated in the Act. It was faintly contended that, in construing the defence power itself, it must be assumed that the Imperial Parliament has not conferred on the Commonwealth Parliament power to legislate contrary to the principles of international law, a point which was mentioned but not determined by the Privy Council in Croft v Dunphy ^[F21] , at p. 164. But it is beyond doubt that the Imperial Parliament can, if it thinks fit, legislate in violation of such principles, and since this power, like the other constitutional powers, is not a delegated power but a power which, as the Privy Council has pointed out on the same page, is as plenary and ample, subject to the limitation that the legislation must be legislation for the peace, order and good government of the Commonwealth with respect to the naval and military defence of the Commonwealth, as the Imperial Parliament in the plenitude of its powers possessed and could bestow, it cannot, in my opinion, be limited in its operation any more than the power of the Imperial Parliament by any such presumption. The National Security Act, as originally enacted, in addition to the general authority conferred upon the Executive by s. 5 to make regulations for securing the public safety and defence of the Commonwealth and for prescribing all matters necessary or convenient for the more effectual prosecution of the war, contained in s. 5, sub-ss. 1 (e) and 2, particular powers for the Executive to make regulations requiring or authorizing any action to be taken by or with respect to aliens, but the section also contained, in sub-s. 7, an express limitation 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. At that stage, therefore, it would appear to have been the intention of Parliament that any extension of any obligation that then existed to serve compulsorily in any of the armed forces of the Commonwealth should be authorized by Act of Parliament. In the case of the Citizen Military Forces, such an obligation was then confined by s. 59 of the Defence Act 1903-1939 to British subjects between the ages of 18 and 60 years.

Section 13A was inserted in the National Security Act when the danger to the British Empire, including Australia, had been gravely intensified by the collapse of France, and is the same in substance as the amendment made on 22nd May 1940 to the Imperial Emergency Powers (Defence) Act 1939 by the Imperial Emergency Powers (Defence) Act 1940: Reid v Sinderberry ^[F22] , at p. 518. The circumstances which rendered necessary the passing of s. 13A were therefore such that the intention must be imputed to Parliament, I think, to confer upon the Executive the most complete powers it could bestow to enable it to meet and overcome the acute dangers then threatening Australia. The section contains a proviso that nothing in the section shall authorize the imposition of any form of compulsory service beyond the limits of Australia. This proviso, which has the effect of repealing s. 5 (7) (a) to the extent to which the two enactments are inconsistent, affords a clear indication that Parliament intended that the Executive should have power to impose by regulation all forms of compulsory service in Australia, including extensions of compulsory service in the armed forces instead of such extensions being provided for by amendments of the Defence Act, the Naval Defence Act and the Air Force Act.

In several previous judgments, I have expressed the view that the effect of the National Security Act is to delegate to the Executive, subject, of course, to the limitations imposed by the Act, a power to legislate for the defence of Australia as wide in its ambit as the defence power. The constitutional power clearly enables the Commonwealth Parliament to legislate for the purposes of defence with respect to any person or thing within its territory. The same power as the Parliament possessed to legislate with respect to the persons, services and property of aliens for the purposes mentioned in s. 13A was, in my opinion, delegated to the Executive by the National Security Act. I agree, therefore, with Mr. Dean that the Commonwealth Parliament has authorized the Executive to decide, as a matter of policy, whether it will compel aliens to serve in its armed forces, and that the Aliens Service Regulations which have been impeached are authorized by s. 13A of the National Security Act. At the same time, I cannot refrain from saying that I cannot agree with him that there is any distinction drawn by the rule between allied nationals and other aliens, so that the regulations are, in my opinion, a departure from established British practice and a breach of the comity of nations.

For these reasons, I would allow the demurrers.