been accepted for service" in defence force-Offer to serve not dealt with - Employment in protected undertaking--Direction by Minister-Whether SYDNEY,

legislative or executive in character - National Security Act 1939-1940 (No. Feb. 1, 2, 4,

15 of 1939-No. 44 of 1940), secs. 5 1, (3), (4), 13A-Acts Interpretation Act 1901-1941 (No. 2 of 1901-No. 7 of 1941), sec. 46-National Security (Aliens Service) Regulations (S.R. 1942 No. 39-1942 No. 103), regs. 4, 8 (1), (1A)- SYDNEY,

National Security (Man Power) Regulations (S.R. 1942 No. 34-1942 No. 355), April 19, 20;

Pursuant to reg. 8 of the National Security (Aliens Service) Regulations the Minister for the Army directed that every male refugee alien of certain descrip- tions should perform such service in Australia as was directed by the Minister for the Interior, not being service in the armed forces, but being service which the alien was, in the opinion of the Minister for the Interior, capable of per- forming.

Held, by the whole Court, that the direction was of an executive, and not a legislative, character and, therefore, did not come within the operation of sec. 5 (4) of the National Security Act 1939-1940.

A male refugee alien within fourteen days after he first became liable to register under the National Security (Aliens Service) Regulations volunteered for service in the military forces of the Commonwealth. While his offer to serve remained undisposed of by acceptance or rejection, and while he was employed in a protected undertaking within the meaning of the National Security (Man Power) Regulations, he was directed to perform service under reg. 8 of the National Security (A liens Service) Regulations.

Held, by Latham C.J., Starke and McTiernan JJ. (Rich J. dissenting) :-

1that, within the meaning of reg. 8 (1) (a) of the National Security (Aliens Service) Regulations, he was a male refugee alien who has not, within fourteen

67 CLR 59

days after he first became liable to register, volunteered and been accepted for service in any part of the Naval Military or Air Forces of the Commonwealth";

(2) that reg. 14 (2) of the National Security (Man Power) Regulations did not operate to prevent his being directed to perform service under reg. 8 of the National Security (Aliens Service) Regulations.

Decision of Williams J. reversed.

APPEAL from Williams J.

In a writ of summons directed to the Commonwealth of Australia, Edward Granville Theodore (the Director-General of Allied Works) and William Stewart Howard (Deputy Director of Personnel, Allied Works Council) the plaintiff, an infant, by his next friend, Heinrich Grunseit, claimed declarations :-(1) that the National Security (Aliens Service) Regulations were void and of no effect; (2) alter- natively, that SO much of sub-reg. 3 of reg. 8 of those Regulations as required moneys payable in respect of service of aliens under those Regulations to be paid to the Commonwealth and the whole of sub-regs. 4, 5…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Commonwealth v Grunseit

Details

AGLC: Commonwealth v Grunseit [1943] HCA 47
Case: [1943] HCA 47
Decision Date: 6 May 1943

CaseChat Overview and Summary

The case of *Commonwealth v Grunseit* involved an appeal to the High Court of Australia concerning the validity of directions issued under the National Security (Aliens Service) Regulations. The plaintiff, a refugee alien, sought declarations that the regulations and a specific direction made by the Minister for the Army were void. He also sought an injunction to prevent the defendants from compelling him to perform labour or services as directed. The primary dispute centred on whether the plaintiff, having volunteered for military service and being employed in a protected undertaking, could be directed to perform other service under the National Security (Aliens Service) Regulations.

The legal issues before the Court included whether the direction issued by the Minister for the Army was of a legislative or executive character, and consequently, whether it was required to be laid before Parliament. The Court also had to determine whether the plaintiff, as a refugee alien who had volunteered for military service within the prescribed timeframe but had not yet been formally accepted, was still subject to directions for non-military service under the Regulations. Furthermore, the Court considered whether the National Security (Man Power) Regulations, which governed employment in protected undertakings, operated to prevent the plaintiff from being directed to perform service under the Aliens Service Regulations.

The High Court, by majority, held that the direction issued by the Minister for the Army was of an executive, not legislative, character and therefore did not fall within the ambit of section 5(4) of the National Security Act 1939-1940, which mandates that legislative orders be laid before Parliament. The Court reasoned that the direction was an act of executing an existing law, rather than creating a new one. Regarding the plaintiff's status, the majority interpreted the relevant regulations to mean that an alien who volunteered for military service within fourteen days of becoming liable to register was only subject to compulsory non-military service if their offer of military service was subsequently refused. The Court found that the plaintiff's offer had not been refused, nor had it been accepted, and he remained employed in a protected undertaking.

Consequently, the High Court reversed the decision of Williams J. It was held that the plaintiff was not a refugee alien who had not volunteered and been accepted for service in the armed forces within the meaning of the regulations. Additionally, the Court determined that the National Security (Man Power) Regulations did not prevent the plaintiff from being directed to perform service under the National Security (Aliens Service) Regulations, but this did not alter the outcome as the plaintiff's circumstances meant he was not subject to the latter direction. The appeal was allowed, and the plaintiff's claim for declarations and injunctions was dismissed.

Orders