Section 13A of the National Security Act 1939-1943 provides :- Notwith- Rich, Starke,
standing 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."
Held that, notwithstanding any 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, S. 13A should be construed as authorizing the Governor-General to make regulations under which the service of any persons in Australia, including aliens, may be compelled for defence purposes.
Held, therefore, that reg. 7 of the National Security (Aliens Service) Regula- tions (Statutory Rules 1942 No. 39), and Part II. of the National Security (Aliens Service) Regulations (which was enacted in substitution for reg. 7 by Statutory Rules 1943 No. 108 and was in substantially the same terms), which provided for the compulsory enrolment of aliens in the armed forces organized by the Commonwealth to wage war against its external enemies, were valid.
Existence and scope of the rule of international law that aliens may not be compelled to serve in the defence forces of a foreign State in which they happen to be, and the effect of the rule on the construction of statutes, considered. DEMURRERS.
Speros Polites brought an action in the High Court against the Commonwealth and Francis Michael Forde, the Minister of State administering the Department of the Army in the Commonwealth and administering the National Security (Aliens Service) Regulations. The statement of claim endorsed on the writ was substantially as follows :-
1. The plaintiff is a national of the Kingdom of Greece and is twenty-nine years of age, and was born within the territory of the aforementioned Kingdom and is not a British subject.
2. The defendant Francis Michael Forde is the Minister of State administering the Department of the Army in the Commonwealth of Australia and administering the National Security (Aliens Service) Regulations.
3. In or about the month of August 1942, purporting to act in pursuance of the National Security (Aliens Service) Regulations and more particularly Part II. thereof, the Commonwealth of Australia through its servants or agents caused to be served upon the plaintiff a notice requiring…
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.
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AGLC
Polites v The Commonwealth [1945] HCA 3
Case
[1945] HCA 3
Decision Date
CaseChat Overview and Summary
In *Polites v The Commonwealth*, the High Court of Australia considered the validity of National Security (Aliens Service) Regulations that purported to compel allied nationals residing in Australia to serve in the Commonwealth's military forces. The plaintiffs, Speros Polites and Orpheus Kandiliotes, both Greek nationals, challenged these regulations, arguing they were not authorised by the National Security Act 1939-1943 and were therefore invalid. The defendants, the Commonwealth and the Minister for the Army, demurred to the statements of claim, asserting the regulations were validly made under the Act.
The central legal issue before the High Court was whether section 13A of the National Security Act 1939-1943 authorised the Governor-General to make regulations compelling aliens to serve in the Australian military forces, notwithstanding a purported rule of international law prohibiting such conscription. The plaintiffs contended that legislation should be interpreted to avoid conflict with international law, and that a well-established rule of international law prevented the compulsory military service of aliens in a foreign state. They argued that the broad language of section 13A should be interpreted to exclude such a breach of international law.
The Court reasoned that while there is a general principle of statutory interpretation that legislation should be construed, where possible, to avoid contravening international law, this principle is subordinate to the clear intention of Parliament. The Court found that section 13A of the National Security Act, introduced by a later amendment, was specifically designed to grant broad powers for defence purposes, including the conscription of persons, and was intended to override any prior limitations, such as those in section 5(7) of the Act, which had previously prohibited compulsory military service. The Court acknowledged the existence of a rule of international law generally preventing the compulsory military service of aliens, but held that Parliament, acting within its constitutional powers, could legislate in a manner that conflicted with international law, leaving the executive government to manage any resulting international complications. Therefore, the Court concluded that section 13A authorised the making of the challenged regulations.
Consequently, the High Court held that the National Security (Aliens Service) Regulations were validly made under the National Security Act 1939-1943. The demurrers filed by the defendants were allowed, and judgment was entered for the defendants in both actions.