Polites v Commonwealth [1945] HCA 3

Polites v Commonwealth [1945] HCA 3

Section 13a of the National Security Act 1939-1943 authorized the Governor-General to make regulations requiring persons, including aliens resident in Australia, to serve in the defence forces, and this legislative intention is not displaced by resort to rules of international law; the regulations are valid, and the demurrers must be allowed.

Parties
Plaintiff: Speros Polites; Plaintiff: Orpheus Kandiliotes; Defendant: The Commonwealth; Defendant: Francis Michael Forde
Jurisdiction
Australia
Procedural Posture
Original Action and Demurrer / Judgment at High Court (demurrer)
Outcome
Demurrers allowed. Judgment for defendants.
Legal Topics
Statutory Construction, Regulation Making Power, International Law in Domestic Law, Conscription of Aliens
Constitutional Law Public International Law Military Law Statutory Construction Regulation Making Power International Law in Domestic Law Conscription of Aliens

Case Brief

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Parties

Speros Polites

Plaintiff

Orpheus Kandiliotes

Plaintiff

The Commonwealth

Defendant

Francis Michael Forde

Defendant

Procedural Posture

Original Action and Demurrer / Judgment at High Court (demurrer)

Legal Issues

  1. 1 Whether the National Security (Aliens Service) Regulations are valid under the National Security Act 1939-1943 in compelling aliens (allied nationals) to serve in the Australian military forces
  2. 2 Whether the statute/regulations must be read to avoid contravention of established rules of international law

Ratio Decidendi

Section 13a of the National Security Act 1939-1943 authorized the Governor-General to make regulations requiring persons, including aliens resident in Australia, to serve in the defence forces, and this legislative intention is not displaced by resort to rules of international law; the regulations are valid, and the demurrers must be allowed.

Court Disposition

Demurrers allowed. Judgment for defendants.

Orders

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