HIGH COURT OF AUSTRALIA

Polites

Vs.

Commonwealth

(Latham C.J., Rich, Starke, Dixon, McTiernan and Williams JJ.)

10 April 1945

Latham C.J.

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[1], 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[2] where, after reference to the well-known authorities of R. v. Burah[3] and Hodge v. The Queen[4], 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[5]; Botiller v. Dominguez[6]; Hijo v. United States[7]. And see Willoughby on the Constitution of the United States, 2nd ed. (1929), vol. 2, pp. 1316 et seq. 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 airforce 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.

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[8]).

For these reasons, I am of opinion that the regulations in question are valid and that the demurrers should be allowed.

Starke J.

The plaintiffs in these actions, resident, according to the respective writs of summons, in Australia, are nationals of the Kingdom of Greece who have been called upon to enlist and serve in the military forces of the Commonwealth. Polites was called to enlist and serve under the provisions of the National Security (Aliens Service) Regulations 1942 No. 39 and Kandiliotes under the provisions of Part II. of the National Security (Aliens Service) Regulations inserted by Statutory Rules 1943 No. 108. Each plaintiff, by his statement of claim, seeks a declaration that the regulation under which he was called to enlist and serve in the military forces of the Commonwealth is unauthorized by the National Security Act 1939-1943 or any other Act of the Parliament and also a declaration that he is not a member of, nor liable to serve in, the military forces of the Commonwealth.

The Commonwealth has demurred to each statement of claim.

The National Security Act 1939-1943 empowers the Governor-General to make regulations for securing the public safety and the defence of the Commonwealth and in particular 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. The challenged regulations purport to have been made under this power.

The validity of this Act has been sustained in this Court on many occasions, and need not be further discussed. And it was properly conceded in argument that the plaintiffs fall within the terms of the relevant regulations if they are valid. It is not explicitly alleged what services the plaintiffs have been called upon to perform, but it is said truly enough that the call is wide enough to cover performance of military functions, perhaps in line of battle. And it is contended that the regulations are invalid because they authorize allied nationals, that is, nationals of any country allied or associated with His Majesty the King in any war in which His Majesty is or may be engaged (subject to some exceptions immaterial for the purpose of this case), who have attained the age of 18 years but have not attained the age of 60 years to be called for service in the military forces of the Commonwealth contrary to the principles or rules of international law.

International law or the law of nations is a law for the intercourse of States with one another and not a law for individuals: See Oppenheim, International Law, 4th ed. (1928), vol. 1, Peace, s. 1, p. 5. The law of nations, as I understand it, concedes that all persons or things within the territory of a State fall under its territorial supremacy and are subject to its jurisdiction, legislative, administrative and judicial: See Oppenheim, 4th ed. (1928), vol. 1, Peace, s. 144, p. 280. And the Commonwealth is in much the same position as a sovereign State in relation to the powers conferred upon it by the Constitution. Its authority is as plenary and as ample within the limits prescribed by the Constitution as the Imperial Parliament in the plenitude of its power possessed or could bestow (Hodge v. The Queen[9]). No doubt sovereign States have, and have often exercised, the right of protecting their nationals abroad against oppression, discrimination and so forth. But that is a very different proposition to that advanced in the present case, namely, that the legislative power of the Commonwealth is subject to and that all its legislation, whether by the Parliament itself or by any subordinate authority, is limited by or must be construed so as not to contravene the rules of the law of nations. So to limit the constitutional power of sovereign States or their subordinate authorities denies the supremacy of those States within their own territory, which is contrary to the principles of the law of nations itself. And to refuse to give words in legislation their grammatical and ordinary signification because of some practice or rule of the law of nations is contrary, as I think, to settled principles of construction. Cases of ambiguity I leave on one side, for there is no ambiguity in the meaning of the present regulations.

It is desirable, however, to consider the law, practice or rule of nations upon which reliance is placed. Hall, Treatise on International Law, 7th ed. (1917), s. 61, p. 219, states that it is in accordance with general principle to say, as is in effect said by M. Bluntschli, that:—

1.

It is not permissible to enrol aliens, except with their own consent, in a force to be used for ordinary national or political objects.

2.

Aliens may be compelled to help to maintain social order, provided that the action required of them does not overstep the limits of police, as distinguished from political action.

3.

They may be compelled to defend the country against an external enemy when the existence of social order or of the population itself is threatened, when, in other words, a state or part of it is threatened by an invasion of savages or uncivilized nations.

 

During the Civil War in America, the British Government, however, instructed its ambassador that there was no rule or principle of international law which prohibits the government of any country from requiring aliens resident within its territories to serve in the militia or police of the country or to contribute to the support of such establishments (Hall, Treatise on International Law, 7th ed. (1917), at p. 218). The practice or rule of civilized nations is thus rather vague and undefined. And to limit constitutional powers by the rule suggested would be subversive of the sovereignty of the State itself. And to construe the legislation of sovereign States or their subordinate legislative authorities by reference to such a rule would often be in direct contradiction of the legislation itself and in any case beyond the ordinary functions of courts of law. The truth is that the so-called law is a practice or rule which every State enjoys as of right for the protection of its subjects abroad (See Oppenheim, International Law, 4th ed. (1928), vol. 1, Peace. s. 320, p. 558) and it is a right which is exercised through diplomatic action. To treat the rule as a restriction upon the legislative capacity of sovereign States or as an overriding principle governing the construction of legislative acts ignores the fundamental principle of government that a State is sovereign within its territory and it is moreover, so vague and indefinite that courts of law would find it difficult, if not impossible, of application. But this is not to say that the plaintiffs have no remedy: they may represent their cases to the Commonwealth, which would not, I should think, send them into the battle line, or in case of need apply for protection through the representatives of their national government.

The demurrer should be allowed in each case.

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.

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[10]; Amalgamated Society of Engineers v. Adelaide Steamship Co. Ltd. (Engineers' Case)[11]; Hodge v. The Queen[12]).

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[13]) 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[14]).

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[15] (affirmed Bloxam v. Favre[16]); Colquhoun v. Brooks[17]; R. v. 30th Battalion Middlesex Regiment; Ex parte Freyberger[18]; Mortensen v. Peters[19]; Barcelo v. Electrolytic Zinc Co. of A/asia Ltd.[20]).

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[21]. 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[22]. 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.

Polites v. The Commonwealth.—Demurrer allowed. Judgment for defendants.

Kandiliotes v. The Commonwealth.—Demurrer allowed. Judgment for defendants.

Solicitors for the plaintiffs, Maurice Blackburn & Co.

Solicitor for the defendants, H. F. E. Whitlam, Crown Solicitor for the Commonwealth.