I refer to your letter of 2 October, 1950, concerning the activities of the War Manpower Resources and Commitments Planning Committee.

(2)  In the first place, I desire to nominate Mr. R.B. Moodie of the Deputy Crown Solicitor’s Office, Melbourne, as my departmental officer to advise the sub-committees on the legal questions which arise.

(3)  I come to the specific request in your letter for advice as to the rules of international law concerning the liability of aliens to perform national service.

(4)  There is a rule of international law which prevents the imposition upon resident aliens of an obligation to serve in the armed forces of the country in which they reside, unless the State to which they belong consents to waive this ordinarily recognized exemption. The rule does not, however, prevent compulsory service in a local police force or a local fire brigade for the purpose of maintaining public order and safety. Authority for the rule is to be found in Oppenheim’s International Law, 7th Edition, (1948) Vol. 1, page 621, and other learned writers on public international law. The existence of the rule was expressly recognized by Latham C.J., Dixon, McTiernan and Williams JJ. in Polites v. The Commonwealth (1945) 70 C.L.R. 60. The rule is sometimes propounded subject to the exception that aliens may be compelled to render military service in order to defend the community against savage or uncivilized assailants threatening its existence (Polites Case per Dixon J. at page 77).

(5)  The existence of a rule of international law does not affect the legislative powers of the Commonwealth Parliament. It is a conventional rule which is considered legally binding by civilized States in their intercourse with each other. If the Commonwealth were to disregard the rule in enacting its National Service legislation, diplomatic protests might result from States whose subjects in Australia were subjected to compulsory military service. It is possible that certain States would consent to their subjects in Australia being liable to compulsory military service. In respect of stateless persons, it is unlikely that protests would be forthcoming.

(6)  I would add that, in the event of its being decided to enlist aliens in the Defence forces, careful consideration would need to be given to the question whether they should be required to take the oath or affirmation of enlistment in accordance with the prescribed form. You will recall that regulation 11 of the National Security (Supplementary) Regulations permitted the appointment and enlistment of aliens in the Defence Force but exempted them from the requirement as to the oath or affirmation of enlistment.

(7)  Should there be any other legal aspects upon which you would wish to be advised, it might facilitate matters if the questions are put to Mr. Moodie in the first instance. If necessary, Mr. Moodie could refer the questions for my advice.

[Vol. 39, p. 391]