Commonwealth v Grunseit [1943] HCA 47

Commonwealth v Grunseit [1943] HCA 47 - HCA 1943 case summary — Zoe

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The words in regs. 7 and 8 " who has not, within fourteen 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 " must be construed in the context of the Regula- tions as a whole, and in particular in that of regs. 6, 7 and 8. It is clear that in time of war the highest offer an alien can make to the country in which he resides, and to which he owes a temporary allegiance, is to volunteer to risk his life in its armed forces. Reg. 6 gives to all aliens a period of fourteen days to volunteer to do this after they first become liable to register, although it appears from reg. 8 (1) (6) that it was not contemplated that enemy aliens would do so ; or, if they did so, that this be accepted. In the case of aliens who, like the plaintiff, were between the ages of eighteen and sixty years on 3rd February 1942, the period would commence on that date. In the case of aliens who attained the age of eighteen years after 3rd February 1942, the period would commence on their eighteenth birthday. There are three possible constructions of the words which I have placed in inverted commas: (1) that the alien must volunteer and be accepted within the period of fourteen days; (2) that the alien must volunteer within the fourteen days and be subsequently accepted before his services are impressed under regs. 7 or 8; and (3) that the alien must volunteer within the fourteen days and if he does so his services can only be impressed if he is not subsequently accepted for the arm of the defence force for which he has volunteered. As some interval of time must elapse between the dates when the alien volunteers and his application is accepted, it is only reasonable to conclude that the period of fourteen days referred to in the Regulations must refer to the volunteering, so that the first construction should be rejected. The expression should, in my opinion, be construed: "has not volunteered within fourteen days and if he has volunteered has not been accepted for service,' so that male allied nationals and male refugee aliens who have volunteered within this period only become liable to the provisions of regs. 7 and 8 if they have not been accepted for the branch of the defence force for which they have volunteered. The proper choice between the second or third constructions depends upon the meaning to be placed upon the words "has not been accepted." The words are not used in a technical but in a colloquial

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sense: cf. R. vy. Slater (1). The ascertainment of the mean- ing of ordinary English words in a statute is a question of fact (Federal Commissioner of Taxation v. Broken Hill South Ltd. (2) ). According to the Oxford English Dictionary and to Webster's Inter- national Dictionary "not" is the ordinary adverb of negation used to express negation, prohibition, denial or refusal, and non-accept- ance means neglect or refusal to accept. It can be placed first for the sake of emphasis. It can be used to imply an affirmative term. In ordinary parlance it would not be correct, in my opinion, to say that a person who has volunteered for active service in the armed forces " has not been accepted " where the proper authority has not decided either to accept or refuse his services. The emphasis placed in the non-acceptance of the offer imports, to my mind, a positive act of refusal. Regs. 7 and 8 do not provide for what is to happen if the offer of an allied national or refugee alien to serve in a branch of the defence force, say the navy or air force, is accepted after a direction has been given under regs. 7 or 8. The Regulations are intended to have, and a direction given under them is capable of having, a pros- pective operation in the case of aliens attaining the age of eighteen years after 3rd February 1942. So that, if the second construction is correct, then such an alien would be caught by the direction of 17th August although he volunteered within the fourteen days, unless he could also induce the naval, military or air force authority to accept him within this period, because at the end of the fourteen days he would immediately become a person whose services had not been accepted. It is difficult to believe that it would have been intended that a third party should be able to circumvent the accept- ance of such an offer. Both the second and third constructions being open, it appears to me that the third construction is more reasonable and more likely to give effect to the intentions of the Governor- General. The onus is on the Commonwealth to show that the alien has not volunteered within the fourteen days, and that, if he did so, he has not been accepted by the defence authorities. In my opinion, therefore, if a male allied national or a refugee alien has volunteered for active service within the fourteen days, he will only become liable to have his services impressed under regs. 7 or 8 if his offer is refused. 'The same construction must be placed upon the direction of 17th August 1942. It follows that on 4th January it was illegal for the defendants to attempt to impress the services of the plaintiff under its provisions.

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undertakings, while the Aliens Service Regulations can apply to all aliens over the age of sixteen years, but national service is only required from allied and refugee aliens who are between the ages of eighteen and sixty years. The Aliens Service Regulations do not expressly repeal the Man Power Regulations so far as the latter refer to aliens, and repeal by implication, which is the consequence of ineonsistent legislation, is never favoured (Halsbury's Laws of England, 2nd ed., vol. 31, p. 561). The Governor-General could hardly have intended to make the Aliens Service Regulations an exclusive code for aliens so that after 3rd February 1942 aliens who continued to be employed in protected undertakings could be dismissed by their employers or could themselves change their employment or enlist in the defence force without the consent of the Director-General of Man Power It, therefore, would appear to be that the two sets of Regulations should be construed together, although, where there is a plain repugnancy between them and they come into collision, the provisions of the Aliens Service Regulations must be taken to have repealed by implication the provisions of the Man Power Regulations to the extent of the repug- nancy. No definition is given of the meaning of the expression " accepted for service " in regs. 7 and 8 of the Aliens Service Regula- tions. But its requirements would, in my opinion, be satisfied where an alien, who had volunteered for service, had been medically examined and had then been informed by the proper authority that his services would be accepted for the branch of the defence forces for which he had volunteered, although he was also informed that he would not be called up until a future date. He would not become enlisted in the defence forces within the meaning of reg. 14 (4) of the Man Power Regulations and reg. 7 of the Aliens Service Regulations until he had been called up for actual service in the defence forces, and had, in the former instance, taken the oath required by the Defence Act. There is, therefore, nothing inconsistent between the right of an alien to volunteer for active service under reg. 6 of the Aliens Service Regulations and the prohibition against an alien employed in a protected undertaking being enlisted in the defence forces contained in reg. 14 of the Man Power Regulations. If his offer to enlist was accepted but the Director-General of Man Power refused permission for him to do so, he could appeal to the Board under reg. 16. It would be strange if the Governor-General intended that a refugee alien employed in a protected undertaking could be compulsorily removed from that employment into services under reg. 8, and even stranger if it was intended that an allied

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alien who has not volunteered and been accepted for service," is elliptical. If an alien has not volunteered no question can arise as to acceptance, so that the expression must be expanded into "an alien who has not volunteered, and, if he has volunteered, has not been accepted for service." The crucial question, therefore, is what is meant when it is said that an offer to serve in a branch of the armed forces has not been accepted. To accept is to take something which is offered, so that not to accept is not to take something which is offered. If the phrase had been expressed in a present or a future tense so as to read " an alien who does not volunteer and (if he does) is not accepted," or "an alien who shall not volunteer and if he shall volunteer, shall not be accepted," it would be clear that non- acceptance meant refusal. I am unable to see why it should be given a different construction because the past tense has been chosen. But the context strengthens this conclusion. The Regulations profoundly affect life and liberty. Surely they must intend that the opportunity given to volunteer should be effective and not illusory ? But in order that it should be effective in any substantial practical sense it is essential to construe the regulation to mean that if an alien volunteers within the fourteen days he is exempt from compul- sion until that offer has been disposed of. Suppose he volunteers for the navy or air force. The offer can only be accepted by the navy or air force. In order to dispose of the offer, the navy or air force would require the alien to undergo medical and other examina- tions such as aptitude tests. He must, therefore, be ready to attend at the recruiting depot when called upon to do so. But if he could be compelled in the meantime to enlist and serve in the Citizen Military Forces or to do work allotted to him by the Minister for Labour and National Service or the Minister for the Interior any- where in Australia, he would in both a legal and practical sense in the first instance, and in at least a practical sense in the second instance, be unable to bring such an offer to fruition by attending the 'call-up and thereby obtaining the same opportunity as other volunteers of being accepted for voluntary service in the navy or air force. It is necessary, therefore, in order to implement the right to volunteer, that the words in question should be construed to mean that the offer has been refused. The words in reg. 8 (1) (a), " within fourteen days," relate to the word " volunteered," and not to the words "been accepted."

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beyond his control. He is not, therefore, subject to a direction under reg. 8 if he has so volunteered and while his offer is under consideration. During that period it is inapt to say that he has not been accepted. Regs. 6, 7 and 8 were intended to give a refugee alien a real option to serve in the armed forces rather than to be conscripted under reg. 8 for other service. The fact that the plaintiff was in a protected undertaking would not prevent his offer to serve in the army being accepted. If it was accepted he could then apply for permission to enlist under reg. 14 (4) of the Man Power Regulations. Enlistment is not necessary to the acceptance of an offer to serve. It is only the result of the acceptance of that offer. Reg. 14 (4) does not prevent an offer to volunteer being accepted. If the Regulations are construed to mean that although an alien volunteers within fourteen days he can still be compelled at any time prior to his voluntary services being accepted, the result follows that regulations which appear to encourage voluntary recruiting place impediments in the way of the volunteer, because his offer can be circumvented by the intervention of compulsion in the period between the making of the offer and its consideration by the branch of the service to which it is made. The offers of a number of aliens, therefore, who volunteered on the same day might have a different result in the case where some of the offers had been expeditiously dealt with so as to anticipate a compulsory order while others had not. They would all have offered to serve when other aliens had done nothing, but they would all be just as liable to compulsion as the other aliens at any moment of time prior to the acceptance of their offer. It means that compulsory orders could have been made operative on 18th February 1942 with respect to all aliens, including those who had immediately volunteered within the fourteen days. The defendants' contention would involve that immediately upon the expiration of the fourteen days great numbers of aliens would be subject so to be conscripted, although it would have been in practice impossible for the military authorities by that time to have considered whether they would accept them, and that, taking the events which actually happened, it would be mere waste of paper for aliens reaching the age of eighteen years after the order of 17th August 1942 became operative to attempt to volunteer. It is not a question of which construction makes the regulations simpler to administer. It is a question whether what appears to be a choice given to aliens to become volunteers is in a practical sense real or a sham. The construction contended for by the appellant offends against every canon of ordinary fairness and common decency and leads to such a strange, capricious, and artificial result that it ought

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that is no reason why complete or partial exemption should not be conferred on some aliens by some other regulations. Here it is' not contended that the plaintiff was not liable to register, but that does not mean that while he was employed in special civil work in a pro- tected undertaking he was not exempt from being called up for other general civil work.' No light is thrown on the problem by Statutory Rules 1942 No. 170. All that rule shows is that its author, wandering in a maze of overlapping regulations and wondering what they all meant, thought it. advisable specifically to exempt men (including aliens) employed in protected undertakings from being called up for work in the Civil Constructional Corps. It does not affect the question whether the Aliens Service Regulations have repealed the protected undertakings regulations and, if so, to what extent. The applicant's contention would appear' to be that the Aliens Service . Regulations did not repeal the protected undertakings 'regulations so as to permit the plaintiff to enlist (as the evidence shows he desired to do), but that they did repeal for the purposes of reg. 8 whatis plainly and clearly involved in reg. 14, namely, that men employed in pro- tected undertakings cannot have their existing employment disturbed except in the manner therein mentioned. It is a'highly capricious construction to be placed upon the interaction of the Aliens Service Regulations and the protected undertakings regulations to say that they can coincide so as to prevent an alien enlisting voluntarily or under compulsion without consent, but do not coincide so as to pre- vent an employer in a protected undertaking " essential to the defence of the Commonwealth" being deprived of the services of an employee in a key job, so that the employee can be sent under compulsion into military service or to pick and shovel work in the Northern Territory by some military or civil authority beyond the control of the Director-General of Man Power, when that employee's services are considered to be so valuable in the protected undertaking that he cannot be allowed to volunteer to enlist. without the authority of the Director-General of Man Power. Reg. 14 is a special regula- tion. It deals with a specific matter from which reg. 8 of the Aliens Service Regulations does not derogate. Whereas the Aliens Service Regulations deal with aliens generally and have not the effect of enabling employees to be taken from the protected undertakings mentioned in reg. 14 of the Man Power Regulations to perform the general work which persons may be ordered to do under the Aliens Service Regulations, it is clear law that where there is no express repeal it is the duty of the Court to reconcile the provisions of statutes relating to the same subject matter as far as possible. In the present: case there is no difficulty in so doing ; and indeed reason,

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Judgment (198 paragraphs)