Polites v Commonwealth [1945] HCA 3

[24]

P. D. Phillips (with him T. M. Smith), for the plaintiffs. Legis- lation of the Commonwealth Parliament should be read, if possible, so as not to involve the breach of a recognized rule of public inter- national law. More particularly, a statute authorizing the making of a subordinate rule having the force of law should not be deemed to authorize the making of a rule involving a breach of a rule of public international law (Maawell on the Interpretation of Statutes, 8th ed. (1937), p. 130; Bloxam v. Favre (1); Craies on Statute Law, 4th ed. (1936), pp. 386, 393 ; Oppenheim, International Law, 5th ed. (1937), vol. 1., p. 40; Jumbunna Coal Mine, No Liability v. Victorian Coal Miners' Association (2), per O'Connor J.; Niboyet v. Niboyet (3); In re Ralston; Perpetual Executors and Trustees Association v. Ralston (4); "Le Louis" (5), per Sir William Scott; R. v. Keyn (6); The "Annapolis" (7), per Dr. Lushington ; Colquhoun v. Brooks (8); Mortensen v. Peters (9); Murray v. Charming Betsy (10), per Marshall C.J.; Potter, Relative Authority of Inter- national Law and National Law in the United States, (1925) 19 Am. J. IL. 315). Section 13a of the National Security Act must be subject to implied limitations not to be derived from the mere literal construction of the words thereof. Some limitation has to be placed on " persons " in the section. It is not conceivable that the legislature meant all persons everywhere, so that the subject matter of the legislation is not such as to justify an application of its literal meaning. It is not like Mortensen v. Peters (9), because, on any view, limitations have to be read into s. 13a. These limitations come from accepted rules of comity and international law. The tules of international law may be established by reference to the accepted text writers, the diplomatic practice and policy of the British Crown, and to right, reason and equity. It is a recognized rule of public international law, accepted by the British Crown, that the laws of one sovereign State may not impose the duties of military service in time of war upon the nationals of other States, except with the consent of those other states (Oppenheim, International Law, 5th ed. (1937), vol. 1., pp. 237, 540; Walker, Manual of Public International Law (1895), p. 46; Holland, Lectures on International Law (1933), p. 149; Halleck's International Law, 3rd ed. (1893), vol. 1., p. 558; Pitt Cobbett, Cases on International Law, 5th ed. (1931), vol. 1., p. 202).

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to examine the scope of the exceptions to see whether the present case falls within or without the power when so restricted. The practice which may be discovered from an examination of the attitudes of particular nations is not conclusive. Aliens may be compelled to help maintain social order, within the limits of police action, and to defend the country against an external enemy when the existence of social order or of the population is threatened, when, in other words, a State or part of it is threatened by an invasion of savages or uncivilized nations (Hall, T'reatise on International Law, 8th ed. (1924), pp. 260, 261). This would apply to the defence of Australia when the regulations were made, and is sufficient to allow regulations requiring compulsory military service of aliens of all kinds. It is very doubtful whether any accepted practice has so far been established which can be recognized as the rule of inter- national law (Halleck's International Law, 3rd ed. (1893), vol. 1., pp. 558, 559; Wheaton's International Law, 6th ed. (1929), vol. 1., p. 208). The rule is the privilege of the State rather than of the individual, and where a State adopts neutrality its subjects should not be required to depart from their loyalty to that State. This basis disappears in the case of an allied national, and, though England made treaty arrangements with allied powers during the last war, it has never been said that the rule extends to others than subjects of neutral States. The rule is uncertain and vague in its operation as to the persons from whom service may be exacted, as to the distinction between allied and neutral nationals, as to the kind of service which may be exacted, and as to its exceptions. This uncer- tainty and vagueness is so great that the rule cannot justify the reading into s. 13a of any effective limitation relevant to this case. The rule further admits limitations within which, on any view, the present case falls. Section 5 (1) (e) of the National Security Act gives power to make regulations for requiring or authorizing action to be taken by or with respect to aliens, and for prohibiting aliens from doing any act or thing, but this (together with the other - provisions of sub-s. 1) is limited with respect to compulsory military service by sub-s. 7. Section 13a was designed to remove the restriction contained in s. 5 (7). Parliament has thus considered the question of aliens, and s. 13a is in wide terms in order that all persons within Australia and all property of persons within Australia may be used for defence. The nature of the legislation is such that there is no room for any implied restriction. Section 13a merely confers a power on the Executive and the exercise of that power may not be a breach of international law - aliens may be employed in munitions, road-making, records, supply corps, &c., and in all

[89]

intention appear, general words occurring in a statute are to be weaxrn. read subject to the established rules of international law and not as nega intended to apply to persons or subjects which, according to those v. tules, a national law of the kind in question ought not to include. a ePies In reliance upon this rule, the plaintiffs contend that s. 13a of waavrs. 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. 134 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

Polites v Commonwealth [1945] HCA 3 - HCA 1945 case summary — Zoe

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Judgment (121 paragraphs)