Commonwealth v Grunseit [1943] HCA 47; (1943) 67 CLR 58 (6 May 1943)

HIGH COURT OF AUSTRALIA

H C of A

11 February 1943

Williams J.

Weston K.C. (with him Starke), for the plaintiff.

Maughan K.C. (with him Dr. Louat), for the defendants.

Feb. 11

Williams J

. delivered the following written judgment:—

The plaintiff is an alien who has been resident in Australia since early in the year 1939. At the beginning of the year 1942 he was nineteen years of age. He was then working (as he still is) as a junior draftsman for a firm of sheet metal workers.

The National Security (Man Power) Regulations came into force on 31st January 1942. They provide (reg. 2) that industrial or commercial enterprises essential to the defence of the Commonwealth may be declared protected undertakings; and, with respect to such undertakings, (reg. 14) that an employer cannot terminate the employment of an employee or an employee change his employment or be appointed to or enlist in the defence forces without the permission in writing of the Director-General of Man Power; and (reg. 16) that a person aggrieved by a decision of the Director-General may appeal to a Local Appeal Board and that the Director-General shall take such action as is necessary to give effect to the decision of the Board. The business in which the plaintiff is employed was declared to be a protected undertaking on 19th February 1942.

The National Security (Aliens Service) Regulations came into force on 3rd February 1942. They apply, inter alia, to "allied nationals," "enemy aliens" and "refugee aliens." Allied nationals are nationals of any country which is or may be associated with His Majesty in any war in which His Majesty is or may be engaged. Enemy aliens are persons who, not being British subjects, possess a nationality of a State at war with His Majesty. Refugee aliens (of whom the plaintiff is one) are aliens who have no nationality, or whose nationality is uncertain, or who are enemy aliens in respect of whom the Minister of State for the Army is satisfied that the alien was forced to emigrate from enemy territory on account of actual or threatened religious, racial or political persecution, and that he is opposed to the regime which forced him to emigrate. The provisions of regs. 4 and 5 require every male alien resident in Australia of or above the age of eighteen years to register for national service within seven days from the day when he first became liable to register by completing an approved application form and delivering or posting it to the area officer of the area in which he is then residing.

Regs. 6, 7 and 8 (1) (a), (b) are in the following terms:—" 6. Any alien who, at any time within fourteen days from the date when he first becomes liable to register, volunteers for service in the naval, military or air forces of the Commonwealth shall forthwith deliver or post to the Area Officer to whom his application was delivered or posted a notification in writing stating— (a) the date upon which he volunteered, (b) the service for which he volunteered, and (c) the place at which he volunteered. 7. (1) An Area Officer may, by notice in a form approved by the Military Board, require any male allied national under the age of sixty years 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, to enlist and serve in the Citizen Military Forces. (2) Any allied national to whom a notice is sent in pursuance of the last preceding sub-regulation shall, within the time specified in that notice, enlist and serve as directed, but shall not be required to take and subscribe an oath or affirmation of enlistment in accordance with the form set forth in the Third Schedule to the Defence Act 1903-1941. (3) Subject to the provisions of these Regulations, the provisions of the Defence Act 1903-1941 and any regulations made under that Act shall apply to aliens enlisted in the Citizen Military Forces in pursuance of these Regulations as if they were British subjects. 8. (1) The Minister of State for the Army may direct that— (a) Any male refugee alien under the age of sixty years 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; and (b) Any male enemy alien other than a refugee alien; shall perform such service in Australia as is directed by the Minister of State for Labour and National Service, or the Minister of State for the Interior, not being service in the armed forces, but being service which the alien is, in the opinion of the Minister issuing the direction, capable of performing. "

Pursuant to the Regulations the plaintiff, within the fourteen days allowed by reg. 6, duly volunteered for service in the military forces of the Commonwealth. On 25th February 1942 he was medically examined at the drill hall in his area and found to be fit for military service.

On 26th February 1942 the National Security (Allied Works) Regulations came into force.

On 7th March 1942 the man-power officer for the plaintiff's area (the business of the firm having by then been declared to be a protected undertaking) marked the plaintiff's papers "reserved occupation." The plaintiff has since continued to work for the firm which has continued to be a protected undertaking, and his offer of service in the military forces has neither been accepted nor refused by the military authorities.

On 7th March 1942 the Minister of State for the Army gave and published in the Government Gazette the following direction:—"In pursuance of regulation 8 of the National Security (Aliens Service) Regulations, I, Francis Michael Forde, Minister of State for the Army, do hereby direct that every male refugee alien, and every male enemy alien other than a refugee alien who—(a) is of or above the age of eighteen years and under the age of sixty years; and (b) has not, within fourteen days after he first became liable to register, volunteered for service in some part of the Naval, Military or Air Forces of the Commonwealth; and (c) is included in Class I., Class II., Class III., Class IV. or Class V. referred to in sec. 60 of the Defence Act 1903-1941, shall perform such service in Australia as is directed by the Minister of State for the Interior."

On 7th March 1942 the Minister of State for the Interior in pursuance of sec. 17 of the National Security Act 1939-1940, by notice in the Commonwealth Gazette, delegated his powers under reg. 8 of the Aliens Service Regulations to the officer performing the duties of the office of Director-General of the Allied Works Council. This officer was and still is the defendant, E. G. Theodore.

On 17th August the Minister of State for the Army gave the following direction:—"In pursuance of regulation 8 of the National Security (Aliens Service) Regulations, I, Francis Michael Forde, Minister of State for the Army, do hereby direct that every male refugee alien, and every male enemy alien other than a refugee alien who—(a) is of, or above, the age of eighteen years, and under the age of sixty years; and (b) has not, within fourteen days after he first became liable to register, volunteered and been accepted for service in some part of the Naval, Military or Air Forces of the Commonwealth, shall perform such service in Australia as is directed by the Minister of State for the Interior, not being service in the Armed Forces, but being service which the alien is, in the opinion of the Minister of State for the Interior, capable of performing. The direction made by me pursuant to the abovementioned regulation on the 7th March 1942, is hereby rescinded."

This direction was not published in the Government Gazette until 2nd December 1942. There is no evidence whether it was intended to be operative prior to 2nd December, but the point is immaterial, because no action was taken under it against the plaintiff until after this date.

On 14th December 1942 the defendant Theodore as Director-General of Allied Works acting under the above delegation directed that certain persons named in the direction, including therein the plaintiff, should perform the service of fitter and all work pertaining thereto, declared that he was of the opinion that the plaintiff was capable of performing such service, and authorized the defendant W. S. Howard, the Deputy Director of Personnel, Allied Works Council, to issue instructions to the plaintiff as to the times and places at which such service was to be performed and any other matters incidental to the performance of such service. On 4th January 1943 Howard instructed the plaintiff to perform the work of a fitter in the Northern Territory in the employment of the Department of the Interior, and to leave Sydney for that destination on the following night. Prior to this direction a man-power officer, Colonel Spurge, who was acting for the Deputy Director-General of Man Power for New South Wales as a man-power officer at the Allied Works Council, had, on 17th December, marked the plaintiff's papers at the Allied Works Council "N.E." (not exempt).

The plaintiff did not comply with the direction to proceed to the Northern Territory, as he had been advised that it was invalid. On 6th January 1943 he issued a writ out of this Court against the defendants, claiming that it might be declared that (1) the Aliens Service Regulations are void and of no effect; (2) alternatively that so much of sub-reg. 3 of reg. 8 of these Regulations as require moneys payable in respect of service of aliens under the Regulations to be paid to the Commonwealth and the whole of sub-regs. 4, 5 and 6 of the same regulation are void and of no effect; (3) that the direction of 7th March 1942 is void and of no effect; (4) that the direction of 17th August is void and of no effect; (5) that the defendants, or either of them, their agents, officers or servants are not entitled to call upon the plaintiff to do labour or service as required by the directions given to the plaintiff; and (6) that the defendants or either of them, their agents, officers or servants be restrained from compelling or instructing or causing the plaintiff to do such labour or service.

On 7th January the plaintiff filed a notice of motion for an interlocutory injunction to restrain the defendants from compelling him to do the work directed to be done by the notice of 4th January. The writ, notice of motion and evidence also refer to an earlier direction to the plaintiff dated 21st December 1942 to proceed to the Northern Territory to do the same work on 28th December, but it is common ground that this notice lapsed, so that I need not consider it.

During the hearing of the notice of motion the parties agreed that the hearing should be taken to be the trial of the action.

Mr. Weston for the plaintiff has contended (1) that the direction of 17th August 1942 is invalid, and (2) that even if it is valid the plaintiff is not an alien who comes within its scope.

The two main objections made by Mr. Weston to the validity of the direction were (1) that it was avoided because it was an order of a legislative character within the meaning of sec. 5 (4) of the National Security Act 1939-1940, and was not laid before each House of Parliament in accordance with the provisions of sec. 48 (1) (c) of the Acts Interpretation Act 1901-1941. The evidence shows that the direction was never laid before either House. I am of the opinion that sec. 13A of the National Security Act must be read in conjunction with sec. 5 of that Act, and as an enlargement of the power to make regulations conferred upon the Governor-General by the latter section, so that all orders, rules or by-laws made under any regulations made by the Governor-General must comply with sec. 5 (4). I shall assume, without finally deciding, that the direction of 17th August is an order within the meaning of this sub-section. On this assumption, I am of opinion that it is an order of an executive and not of a legislative character. I agree with Mr. Weston that, as the same distinction has not been drawn in Australia as in the United States of America between legislative, executive and judicial powers, care must be taken before applying in Australia the decisions of the courts of the United States of America as to the distinction between acts of a legislative and of an executive character. But sec. 5 (4) of the National Security Act requires that a distinction shall be drawn; and, in arriving at a conclusion, I can see no reason why I should not adopt the test referred to by the Supreme Court of the United States of America in J. W. Hampton, Jr. & Co. v. United States[1] : "The true distinction, therefore, is, between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring an authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made" —cited by my brother Dixon in Victorian Stevedoring and General Contracting Co. Pty. Ltd. and Meakes v. Dignan[2] . The direction of 17th August was made pursuant to the provisions of reg. 8 of the Aliens Service Regulations. That regulation defines the classes of aliens who are subject to any direction which the Minister of State for the Army may give, and the work which they can be required to do. It prescribes both the legal obligation and the class of persons who are subjected to it. The Minister has a mere discretion to direct the time and the manner in which these aliens shall be compelled to perform the obligation. He can only administer an existing law by directing persons who are subject to that law to do acts which they are liable to perform under that law. In giving a direction he is merely carrying an existing law into execution. Such a direction is, in my opinion, of an executive character, and need not be laid before the Houses of Parliament. (2) That reg. 8 is too wide, because it requires refugee and enemy aliens to do any service which, in the opinion of the Minister issuing the direction, the alien is capable of performing. This authority is wide enough in terms to enable the Minister to require an alien to perform many services having no connection with the defence of the Commonwealth. But the only services which an alien could be ordered to perform by a regulation made under the National Security Act, secs. 5 and 13A, would be services which could conceivably aid, at least incidentally, in such defence. The evidence shows that the work which the plaintiff has been called upon to do is work of this nature. It is, therefore, work which he could be required to do by a regulation made under the authority of the Act. The present regulation can only be valid if the Acts Interpretation Act 1901-1941, sec. 46 (b), can be applied so as to confine its operation to services which can conceivably aid even incidentally in the effectuation of the defence of the Commonwealth. In R. v. Poole; Ex parte Henry [No. 2][3] (in a passage to which he subsequently referred in Andrews v. Howell[4] ) my brother Dixon pointed out that two types of case present themselves under sec. 46 (b). The present is an illustration of the second type of case to which he refers, the regulation being one which, if its operation is limited to services connected with the war, would be valid. It is clear, I think, that the Governor-General intended that the regulation should be valid to the full extent to which it was not in excess of the power conferred upon him to make regulations by the Act, so that to confine the operation of the regulation to this extent would be a partial application of an intended law and not the application of a different law to that intended by the regulation. That it is proper to use sec. 46 (b) so as to limit the operation of the regulation in this way is established, I think, not only by the statements of my brother Dixon to which I have referred, but by those of my brother Rich in Huddart Parker Ltd. v. The Commonwealth[5] , my brother Starke in New South Wales v. The Commonwealth [No. 3][6] and my brother McTiernan[7] , in relation to sec. 15A of the same Act, and by the use of sec. 46 (b), the sub-section for this purpose, made by the Chief Justice (with whose judgment my brother McTiernan agreed) and by myself in Australian Coal and Shale Employees Federation v. Aberfield Coal Mining Co. Ltd[8] . Both these objections therefore fail.

Mr. Weston raised two further objections, one to the validity of reg. 8 and the other to the validity of the direction of 17th August 1942, to which I shall shortly refer. With respect to the regulation he objected that the effect of sub-regs. 3, 4, 5 and 6 is to impose a tax on the earnings of the alien. But, even if this is so, and these sub-regulations could be invalidated on this ground (as to which I express no opinion) their invalidity would not affect the validity of sub-reg. 1. The plaintiff is not suing the Commonwealth for any remuneration in this action. He has not done any work for the Commonwealth or earned any remuneration. This objection would only arise if the Commonwealth retained some part of his remuneration and he complained that such a retention was invalid. Mr. Weston also objected that the direction of 17th August could not be validly given unless the provision which it contains repealing the direction of 7th March was valid. He submitted that if the Aliens Service Regulations were made solely under sec. 13A and not under sec. 5 of the Act, the direction of 7th March could not be subsequently rescinded, because sec. 13A does not contain a provision similar to that contained in sec. 5 (6). There is no substance in this objection. The Regulations were made under the powers conferred upon the Governor-General by sec. 5 as enlarged by sec. 13A, so that sec. 5 (6) is available; even if it were not, the Acts Interpretation Act 1901-1941, sec. 46 (a), would convert the direction of 7th March into an Act for the purposes of sec. 33 (3); so that, even if the direction of 7th March could not be revoked, the direction of 17th August would be cumulative upon it.

I shall proceed therefore to discuss the plaintiff's rights upon the basis that sub-reg. 8 (1) (a) and (b) of the Aliens Service Regulations is a valid sub-regulation and that the direction of 17th August 1942 is a valid direction. Prior to the Aliens Service Regulations coming into force there was nothing to prevent aliens volunteering for service in the naval, military or air forces of the Commonwealth, but compulsory enlistment in these forces was confined by the Defence Act 1903-1941 to British subjects. Reg. 6 gives to all aliens a period of fourteen days after they first become liable to register within which to volunteer for service in the naval, military or air forces of the Commonwealth. If an alien volunteers, he has to give the information specified in the regulation to the area officer of the district in which he resides. Reg. 7 refers to male allied nationals between the ages of eighteen and sixty. It authorizes an area officer, by notice in a form approved by the Military Board, to require such an alien, 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, to enlist and serve in the Citizen Military Forces. By reg. 8 the Minister of State for the Army may direct any male refugee alien between the ages of eighteen and sixty years, who has not, within fourteen days after he first becomes liable to register, volunteered and been accepted for service in any part of such forces, to perform the non-combatant services in Australia therein specified.

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 Regulations 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) (b) 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 sense: cf. R. v. Slatter[9] . The ascertainment of the meaning of ordinary English words in a statute is a question of fact (Federal Commissioner of Taxation v. Broken Hill South Ltd.[10] ). According to the Oxford English Dictionary and to Webster's International Dictionary "not" is the ordinary adverb of negation used to express negation, prohibition, denial or refusal, and non-acceptance 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 prospective 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 acceptance 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.

The Man Power Regulations apply to all persons in protected 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 inconsistent 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 repugnancy. No definition is given of the meaning of the expression "accepted for service" in regs. 7 and 8 of the Aliens Service Regulations. 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 national employed in a protected undertaking who was not allowed to enlist voluntarily without the permission of the Director-General of Man Power could be compulsorily enlisted without his permission under reg. 7. There is nothing, to my mind, plainly repugnant to the provisions of the Aliens Service Regulations that an alien employed in a protected undertaking, while he remains so employed, should continue to be entitled to the rights and subject to the liabilities given to and imposed upon him by the Man Power Regulations; so that, whether an alien has volunteered under reg. 6 of the Aliens Service Regulations or not, his services, whilst he continues to be employed in a protected undertaking, cannot be impressed under the Aliens Service Regulations. The evidence establishes that on 17th December 1942 Colonel Spurge was authorized to act on behalf of Mr. Bellemore as the man-power officer at the Allied Works Council; but it is unnecessary to decide whether Colonel Spurge could grant an exemption required under the Man Power Regulations, or, as Mr. Weston contended, only Mr. Bellemore could do so, because assuming that the act of Colonel Spurge was in law the act of Mr. Bellemore, there is no provision in the Man Power Regulations (as they existed, on and prior to 4th January 1943), authorizing the Director-General of Man Power to agree to an employee in a protected undertaking being conscripted in this way.

The plaintiff is therefore entitled to a declaration as claimed in par. 5 of the writ. The defendants must pay the plaintiff's costs of action, including the costs of the motion for an interlocutory injunction.

Appeal allowed. Judgment set aside. Action dismissed. No order as to costs.

Solicitor for the appellants, H. F. E. Whitlam, Crown Solicitor for the Commonwealth.

Solicitors for the respondent, Uther & Uther.

H C of A

6 May 1943

Latham C.J., Rich, Starke and McTiernan JJ.

Weston K.C. (with him Starke), for the plaintiff.

Maughan K.C. (with him Dr. Louat), for the defendants.

Feb. 11

Williams J

. delivered the following written judgment:—

The plaintiff is an alien who has been resident in Australia since early in the year 1939. At the beginning of the year 1942 he was nineteen years of age. He was then working (as he still is) as a junior draftsman for a firm of sheet metal workers.

The National Security (Man Power) Regulations came into force on 31st January 1942. They provide (reg. 2) that industrial or commercial enterprises essential to the defence of the Commonwealth may be declared protected undertakings; and, with respect to such undertakings, (reg. 14) that an employer cannot terminate the employment of an employee or an employee change his employment or be appointed to or enlist in the defence forces without the permission in writing of the Director-General of Man Power; and (reg. 16) that a person aggrieved by a decision of the Director-General may appeal to a Local Appeal Board and that the Director-General shall take such action as is necessary to give effect to the decision of the Board. The business in which the plaintiff is employed was declared to be a protected undertaking on 19th February 1942.

The National Security (Aliens Service) Regulations came into force on 3rd February 1942. They apply, inter alia, to "allied nationals," "enemy aliens" and "refugee aliens." Allied nationals are nationals of any country which is or may be associated with His Majesty in any war in which His Majesty is or may be engaged. Enemy aliens are persons who, not being British subjects, possess a nationality of a State at war with His Majesty. Refugee aliens (of whom the plaintiff is one) are aliens who have no nationality, or whose nationality is uncertain, or who are enemy aliens in respect of whom the Minister of State for the Army is satisfied that the alien was forced to emigrate from enemy territory on account of actual or threatened religious, racial or political persecution, and that he is opposed to the regime which forced him to emigrate. The provisions of regs. 4 and 5 require every male alien resident in Australia of or above the age of eighteen years to register for national service within seven days from the day when he first became liable to register by completing an approved application form and delivering or posting it to the area officer of the area in which he is then residing.

Regs. 6, 7 and 8 (1) (a), (b) are in the following terms:—" 6. Any alien who, at any time within fourteen days from the date when he first becomes liable to register, volunteers for service in the naval, military or air forces of the Commonwealth shall forthwith deliver or post to the Area Officer to whom his application was delivered or posted a notification in writing stating— (a) the date upon which he volunteered, (b) the service for which he volunteered, and (c) the place at which he volunteered. 7. (1) An Area Officer may, by notice in a form approved by the Military Board, require any male allied national under the age of sixty years 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, to enlist and serve in the Citizen Military Forces. (2) Any allied national to whom a notice is sent in pursuance of the last preceding sub-regulation shall, within the time specified in that notice, enlist and serve as directed, but shall not be required to take and subscribe an oath or affirmation of enlistment in accordance with the form set forth in the Third Schedule to the Defence Act 1903-1941. (3) Subject to the provisions of these Regulations, the provisions of the Defence Act 1903-1941 and any regulations made under that Act shall apply to aliens enlisted in the Citizen Military Forces in pursuance of these Regulations as if they were British subjects. 8. (1) The Minister of State for the Army may direct that— (a) Any male refugee alien under the age of sixty years 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; and (b) Any male enemy alien other than a refugee alien; shall perform such service in Australia as is directed by the Minister of State for Labour and National Service, or the Minister of State for the Interior, not being service in the armed forces, but being service which the alien is, in the opinion of the Minister issuing the direction, capable of performing. "

Pursuant to the Regulations the plaintiff, within the fourteen days allowed by reg. 6, duly volunteered for service in the military forces of the Commonwealth. On 25th February 1942 he was medically examined at the drill hall in his area and found to be fit for military service.

On 26th February 1942 the National Security (Allied Works) Regulations came into force.

On 7th March 1942 the man-power officer for the plaintiff's area (the business of the firm having by then been declared to be a protected undertaking) marked the plaintiff's papers "reserved occupation." The plaintiff has since continued to work for the firm which has continued to be a protected undertaking, and his offer of service in the military forces has neither been accepted nor refused by the military authorities.

On 7th March 1942 the Minister of State for the Army gave and published in the Government Gazette the following direction:—"In pursuance of regulation 8 of the National Security (Aliens Service) Regulations, I, Francis Michael Forde, Minister of State for the Army, do hereby direct that every male refugee alien, and every male enemy alien other than a refugee alien who—(a) is of or above the age of eighteen years and under the age of sixty years; and (b) has not, within fourteen days after he first became liable to register, volunteered for service in some part of the Naval, Military or Air Forces of the Commonwealth; and (c) is included in Class I., Class II., Class III., Class IV. or Class V. referred to in sec. 60 of the Defence Act 1903-1941, shall perform such service in Australia as is directed by the Minister of State for the Interior."

On 7th March 1942 the Minister of State for the Interior in pursuance of sec. 17 of the National Security Act 1939-1940, by notice in the Commonwealth Gazette, delegated his powers under reg. 8 of the Aliens Service Regulations to the officer performing the duties of the office of Director-General of the Allied Works Council. This officer was and still is the defendant, E. G. Theodore.

On 17th August the Minister of State for the Army gave the following direction:—"In pursuance of regulation 8 of the National Security (Aliens Service) Regulations, I, Francis Michael Forde, Minister of State for the Army, do hereby direct that every male refugee alien, and every male enemy alien other than a refugee alien who—(a) is of, or above, the age of eighteen years, and under the age of sixty years; and (b) has not, within fourteen days after he first became liable to register, volunteered and been accepted for service in some part of the Naval, Military or Air Forces of the Commonwealth, shall perform such service in Australia as is directed by the Minister of State for the Interior, not being service in the Armed Forces, but being service which the alien is, in the opinion of the Minister of State for the Interior, capable of performing. The direction made by me pursuant to the abovementioned regulation on the 7th March 1942, is hereby rescinded."

This direction was not published in the Government Gazette until 2nd December 1942. There is no evidence whether it was intended to be operative prior to 2nd December, but the point is immaterial, because no action was taken under it against the plaintiff until after this date.

On 14th December 1942 the defendant Theodore as Director-General of Allied Works acting under the above delegation directed that certain persons named in the direction, including therein the plaintiff, should perform the service of fitter and all work pertaining thereto, declared that he was of the opinion that the plaintiff was capable of performing such service, and authorized the defendant W. S. Howard, the Deputy Director of Personnel, Allied Works Council, to issue instructions to the plaintiff as to the times and places at which such service was to be performed and any other matters incidental to the performance of such service. On 4th January 1943 Howard instructed the plaintiff to perform the work of a fitter in the Northern Territory in the employment of the Department of the Interior, and to leave Sydney for that destination on the following night. Prior to this direction a man-power officer, Colonel Spurge, who was acting for the Deputy Director-General of Man Power for New South Wales as a man-power officer at the Allied Works Council, had, on 17th December, marked the plaintiff's papers at the Allied Works Council "N.E." (not exempt).

The plaintiff did not comply with the direction to proceed to the Northern Territory, as he had been advised that it was invalid. On 6th January 1943 he issued a writ out of this Court against the defendants, claiming that it might be declared that (1) the Aliens Service Regulations are void and of no effect; (2) alternatively that so much of sub-reg. 3 of reg. 8 of these Regulations as require moneys payable in respect of service of aliens under the Regulations to be paid to the Commonwealth and the whole of sub-regs. 4, 5 and 6 of the same regulation are void and of no effect; (3) that the direction of 7th March 1942 is void and of no effect; (4) that the direction of 17th August is void and of no effect; (5) that the defendants, or either of them, their agents, officers or servants are not entitled to call upon the plaintiff to do labour or service as required by the directions given to the plaintiff; and (6) that the defendants or either of them, their agents, officers or servants be restrained from compelling or instructing or causing the plaintiff to do such labour or service.

On 7th January the plaintiff filed a notice of motion for an interlocutory injunction to restrain the defendants from compelling him to do the work directed to be done by the notice of 4th January. The writ, notice of motion and evidence also refer to an earlier direction to the plaintiff dated 21st December 1942 to proceed to the Northern Territory to do the same work on 28th December, but it is common ground that this notice lapsed, so that I need not consider it.

During the hearing of the notice of motion the parties agreed that the hearing should be taken to be the trial of the action.

Mr. Weston for the plaintiff has contended (1) that the direction of 17th August 1942 is invalid, and (2) that even if it is valid the plaintiff is not an alien who comes within its scope.

The two main objections made by Mr. Weston to the validity of the direction were (1) that it was avoided because it was an order of a legislative character within the meaning of sec. 5 (4) of the National Security Act 1939-1940, and was not laid before each House of Parliament in accordance with the provisions of sec. 48 (1) (c) of the Acts Interpretation Act 1901-1941. The evidence shows that the direction was never laid before either House. I am of the opinion that sec. 13A of the National Security Act must be read in conjunction with sec. 5 of that Act, and as an enlargement of the power to make regulations conferred upon the Governor-General by the latter section, so that all orders, rules or by-laws made under any regulations made by the Governor-General must comply with sec. 5 (4). I shall assume, without finally deciding, that the direction of 17th August is an order within the meaning of this sub-section. On this assumption, I am of opinion that it is an order of an executive and not of a legislative character. I agree with Mr. Weston that, as the same distinction has not been drawn in Australia as in the United States of America between legislative, executive and judicial powers, care must be taken before applying in Australia the decisions of the courts of the United States of America as to the distinction between acts of a legislative and of an executive character. But sec. 5 (4) of the National Security Act requires that a distinction shall be drawn; and, in arriving at a conclusion, I can see no reason why I should not adopt the test referred to by the Supreme Court of the United States of America in J. W. Hampton, Jr. & Co. v. United States[11] : "The true distinction, therefore, is, between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring an authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made" —cited by my brother Dixon in Victorian Stevedoring and General Contracting Co. Pty. Ltd. and Meakes v. Dignan[12] . The direction of 17th August was made pursuant to the provisions of reg. 8 of the Aliens Service Regulations. That regulation defines the classes of aliens who are subject to any direction which the Minister of State for the Army may give, and the work which they can be required to do. It prescribes both the legal obligation and the class of persons who are subjected to it. The Minister has a mere discretion to direct the time and the manner in which these aliens shall be compelled to perform the obligation. He can only administer an existing law by directing persons who are subject to that law to do acts which they are liable to perform under that law. In giving a direction he is merely carrying an existing law into execution. Such a direction is, in my opinion, of an executive character, and need not be laid before the Houses of Parliament. (2) That reg. 8 is too wide, because it requires refugee and enemy aliens to do any service which, in the opinion of the Minister issuing the direction, the alien is capable of performing. This authority is wide enough in terms to enable the Minister to require an alien to perform many services having no connection with the defence of the Commonwealth. But the only services which an alien could be ordered to perform by a regulation made under the National Security Act, secs. 5 and 13A, would be services which could conceivably aid, at least incidentally, in such defence. The evidence shows that the work which the plaintiff has been called upon to do is work of this nature. It is, therefore, work which he could be required to do by a regulation made under the authority of the Act. The present regulation can only be valid if the Acts Interpretation Act 1901-1941, sec. 46 (b), can be applied so as to confine its operation to services which can conceivably aid even incidentally in the effectuation of the defence of the Commonwealth. In R. v. Poole; Ex parte Henry [No. 2][13] (in a passage to which he subsequently referred in Andrews v. Howell[14] ) my brother Dixon pointed out that two types of case present themselves under sec. 46 (b). The present is an illustration of the second type of case to which he refers, the regulation being one which, if its operation is limited to services connected with the war, would be valid. It is clear, I think, that the Governor-General intended that the regulation should be valid to the full extent to which it was not in excess of the power conferred upon him to make regulations by the Act, so that to confine the operation of the regulation to this extent would be a partial application of an intended law and not the application of a different law to that intended by the regulation. That it is proper to use sec. 46 (b) so as to limit the operation of the regulation in this way is established, I think, not only by the statements of my brother Dixon to which I have referred, but by those of my brother Rich in Huddart Parker Ltd. v. The Commonwealth[15] , my brother Starke in New South Wales v. The Commonwealth [No. 3][16] and my brother McTiernan[17] , in relation to sec. 15A of the same Act, and by the use of sec. 46 (b), the sub-section for this purpose, made by the Chief Justice (with whose judgment my brother McTiernan agreed) and by myself in Australian Coal and Shale Employees Federation v. Aberfield Coal Mining Co. Ltd[18] . Both these objections therefore fail.

Mr. Weston raised two further objections, one to the validity of reg. 8 and the other to the validity of the direction of 17th August 1942, to which I shall shortly refer. With respect to the regulation he objected that the effect of sub-regs. 3, 4, 5 and 6 is to impose a tax on the earnings of the alien. But, even if this is so, and these sub-regulations could be invalidated on this ground (as to which I express no opinion) their invalidity would not affect the validity of sub-reg. 1. The plaintiff is not suing the Commonwealth for any remuneration in this action. He has not done any work for the Commonwealth or earned any remuneration. This objection would only arise if the Commonwealth retained some part of his remuneration and he complained that such a retention was invalid. Mr. Weston also objected that the direction of 17th August could not be validly given unless the provision which it contains repealing the direction of 7th March was valid. He submitted that if the Aliens Service Regulations were made solely under sec. 13A and not under sec. 5 of the Act, the direction of 7th March could not be subsequently rescinded, because sec. 13A does not contain a provision similar to that contained in sec. 5 (6). There is no substance in this objection. The Regulations were made under the powers conferred upon the Governor-General by sec. 5 as enlarged by sec. 13A, so that sec. 5 (6) is available; even if it were not, the Acts Interpretation Act 1901-1941, sec. 46 (a), would convert the direction of 7th March into an Act for the purposes of sec. 33 (3); so that, even if the direction of 7th March could not be revoked, the direction of 17th August would be cumulative upon it.

I shall proceed therefore to discuss the plaintiff's rights upon the basis that sub-reg. 8 (1) (a) and (b) of the Aliens Service Regulations is a valid sub-regulation and that the direction of 17th August 1942 is a valid direction. Prior to the Aliens Service Regulations coming into force there was nothing to prevent aliens volunteering for service in the naval, military or air forces of the Commonwealth, but compulsory enlistment in these forces was confined by the Defence Act 1903-1941 to British subjects. Reg. 6 gives to all aliens a period of fourteen days after they first become liable to register within which to volunteer for service in the naval, military or air forces of the Commonwealth. If an alien volunteers, he has to give the information specified in the regulation to the area officer of the district in which he resides. Reg. 7 refers to male allied nationals between the ages of eighteen and sixty. It authorizes an area officer, by notice in a form approved by the Military Board, to require such an alien, 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, to enlist and serve in the Citizen Military Forces. By reg. 8 the Minister of State for the Army may direct any male refugee alien between the ages of eighteen and sixty years, who has not, within fourteen days after he first becomes liable to register, volunteered and been accepted for service in any part of such forces, to perform the non-combatant services in Australia therein specified.

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 Regulations 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) (b) 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 sense: cf. R. v. Slatter[19] . The ascertainment of the meaning of ordinary English words in a statute is a question of fact (Federal Commissioner of Taxation v. Broken Hill South Ltd.[20] ). According to the Oxford English Dictionary and to Webster's International Dictionary "not" is the ordinary adverb of negation used to express negation, prohibition, denial or refusal, and non-acceptance 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 prospective 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 acceptance 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.

The Man Power Regulations apply to all persons in protected 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 inconsistent 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 repugnancy. No definition is given of the meaning of the expression "accepted for service" in regs. 7 and 8 of the Aliens Service Regulations. 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 national employed in a protected undertaking who was not allowed to enlist voluntarily without the permission of the Director-General of Man Power could be compulsorily enlisted without his permission under reg. 7. There is nothing, to my mind, plainly repugnant to the provisions of the Aliens Service Regulations that an alien employed in a protected undertaking, while he remains so employed, should continue to be entitled to the rights and subject to the liabilities given to and imposed upon him by the Man Power Regulations; so that, whether an alien has volunteered under reg. 6 of the Aliens Service Regulations or not, his services, whilst he continues to be employed in a protected undertaking, cannot be impressed under the Aliens Service Regulations. The evidence establishes that on 17th December 1942 Colonel Spurge was authorized to act on behalf of Mr. Bellemore as the man-power officer at the Allied Works Council; but it is unnecessary to decide whether Colonel Spurge could grant an exemption required under the Man Power Regulations, or, as Mr. Weston contended, only Mr. Bellemore could do so, because assuming that the act of Colonel Spurge was in law the act of Mr. Bellemore, there is no provision in the Man Power Regulations (as they existed, on and prior to 4th January 1943), authorizing the Director-General of Man Power to agree to an employee in a protected undertaking being conscripted in this way.

The plaintiff is therefore entitled to a declaration as claimed in par. 5 of the writ. The defendants must pay the plaintiff's costs of action, including the costs of the motion for an interlocutory injunction.

Appeal allowed. Judgment set aside. Action dismissed. No order as to costs.

Solicitor for the appellants, H. F. E. Whitlam, Crown Solicitor for the Commonwealth.

Solicitors for the respondent, Uther & Uther.

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1. [1928] USSC 69; (1928) 276 U.S. 394, at p. 407 [72 Law. Ed. 624, at p. 629].

2. [1931] HCA 34; (1931) 46 C.L.R. 73, at p. 93.

3. [1939] HCA 19; (1939) 61 C.L.R. 634, at pp. 651, 652.

4. [1941] HCA 20; (1941) 65 C.L.R. 255, at p. 281.

5. [1931] HCA 1; (1931) 44 C.L.R. 492, at p. 500.

6. [1932] HCA 12; (1932) 46 C.L.R. 246, at p. 270.

7. (1932) 46 C.L.R., at p. 272.

8. [1942] HCA 23; (1942) 66 C.L.R. 161, at pp. 175, 176, 196.

9. (1840) 11 A. & E. 505 [113 E.R. 507]; [1840] EngR 368; 9 L.J. Q.B. 115.

10. [1941] HCA 33; (1941) 65 C.L.R. 150, at pp. 155, 160.

11. [1928] USSC 69; (1928) 276 U.S. 394, at p. 407 [72 Law. Ed. 624, at p. 629].

12. [1931] HCA 34; (1931) 46 C.L.R. 73, at p. 93.

13. [1939] HCA 19; (1939) 61 C.L.R. 634, at pp. 651, 652.

14. [1941] HCA 20; (1941) 65 C.L.R. 255, at p. 281.

15. [1931] HCA 1; (1931) 44 C.L.R. 492, at p. 500.

16. [1932] HCA 12; (1932) 46 C.L.R. 246, at p. 270.

17. (1932) 46 C.L.R., at p. 272.

18. [1942] HCA 23; (1942) 66 C.L.R. 161, at pp. 175, 176, 196.

19. (1840) 11 A. & E. 505 [113 E.R. 507]; [1840] EngR 368; 9 L.J. Q.B. 115.

20. [1941] HCA 33; (1941) 65 C.L.R. 150, at pp. 155, 160.