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Wednesday, 29 September 1971
Page: 1674


Mr BARNARD (Bass) - I move:

That the following new clause be inserted in the Bill: "6a. Sections 29a, 29b, 29c, 29ca and 29d of the Principal Act are repealed and the following sections inserted in their stead: 29a. - (1.) A person whose conscientious beliefs do not allow him to engage in military service, either generally or while particular circumstances (including a particular war or particular warlike operations) exist, is, so long as he holds those beliefs, exempt from liability to render service under this Act. (2.) For the purposes of this section, a conscientious belief is a conscientious belief whether the ground of the belief is or is not of a religious character and whether the belief is or is not part of the doctrines of a religion. 29b. - (1.) The question whether a person is, by virtue of sub-section (1.) of the last preceding section, exempt from liability to render service under this Act shall be heard and determined by a Commissioner for Conscientious Objectors upon application made in accordance with the regulations. (2.) Where an application has been made under the last preceding sub-section in relation to a person in relation to whom no previous application has been made under that sub-section, then, until the hearing and determination of the application by a Commissioner and, if an appeal is brought from the decision of the Commissioner, until the hearing and determination of the appeal -

(a)   the person shall be deemed for the purposes of this Act other than sub-section (5.) of section thirty-five b to be exempt from liability to render service under this Act;

(b)   any notice under Part 111. requiring him to attend and submit himself for an examination for the purpose of determining his physical or mental fitness or capacity for service under this Act is of no effect; and

(c)   if he is a national serviceman - he shall be granted leave without pay. (3.) The parties at the hearing of an application in relation to a person under sub-section (I.) of this section are the person and the Minister. (4.) In determining an application under subsection (1.) of this section in relation to a person, a Commissioner shall have regard to all relevant matters including -

(a)   the circumstances in which the person claims to have formed his beliefs and to have continued to hold those beliefs;

(b)   the period during which the person claims to have held his beliefs; and

(c)   the extent to which the person's evidence as to his beliefs is corroborated, but the Commissioner may, if he thinks fit, accept the evidence of the person whether it is corroborated or not. (5.) In this section, "Commissioner" means a Commissioner for Conscientious Objectors holding office under the next succeeding section. 29c. - (1.) For the purposes of this Act, the Governor-General shall -

(a)   in respect of each State - appoint a person to be the Commissioner for Conscientious Objectors for that State; and

(b)   in respect of each Territory - appoint a person to be the Commissioner for Conscientious Objectors for that Territory. (2.) A person is not eligible for appointment as the Commissioner for a State or Territory unless he is -

(a)   a Judge of the Supreme Court of that State or Territory; or

(b)   a Judge of a District Court or County Court of that State or Territory or, if there is no such Court in that State or Territory, a barrister or solicitor of the Supreme Court of that State or Territory of not less than ten years' standing. (3.) A person appointed to be a Commissioner holds office for such period (not exceeding seven years) as is specified in the instrument of his appointment, but is eligible for re-appointment. (4.) A person appointed as a Commissioner shall be paid remuneration at such rate (if any) as the Governor-General determines, but the rate shall not be diminished during his term of office. (5.) A Commissioner shall be paid such allowances (if any) in respect of travelling expenses as the Minister determines. (6.) A Commissioner shall, before proceeding to discharge the duties of his office, take an oath or make an affirmation as prescribed. (7.) A Commissioner may resign his office by writing signed by him and delivered to the GovernorGeneral. (8.) The regulations may make provision for and in relation to the practice and procedure in relation to the performance by Commissioners of functions under this Act, including the Summoning of witnesses, the production of documents, the taking of evidence on oath or affirmation, the administering of oaths or affirmations, the payment of expenses of witnesses andthe protection and immunity of Commissioners, of barristers and solicitors appearing before Commissioners and of witnesses. 29d. - (1.) Where a Commissioner for Conscientious Objectors for a State or Territory has given a decision on an application under section twenty-nine b of this Act, a parly to the application may appeal from that decision to the Supreme Court of that Stale or Territory constituted by not less than three Judges. (2.) The Court in which an appeal under this section is instituted -

(a)   shall hear and determine the appeal;

(b)   may affirm, vary or set aside the decision of the Commissioner;

(c)   may give such judgment, or make such order, as in all the circumstances it thinks fit, or refuse to make an order; and

(d)   may remit the case for rehearing and determination, either with or without the hearing of further evidence, by the Commissioner. (3.) A decision of a Court on anappeal under this section is final and conclusive except so far as an appeal may be brought to the High Court by leave of the High Court.'.".

The amendment I have moved on behalf of the Opposition can be considered in 2 parts. I have of course moved for these provisions on 2 other occasions in this Parliament. The Opposition proposes 2 amendments to the principal Act and if these amendments are accepted by the Government they will almost certainly remove a great deal of the agony and divisiveness that has accompanied the question of conscientious objection since national service was introduced by this Government. Briefly the first part of this amendment proposes that there should be the right for a person in this country who has a conscientious objection to a particular war to express that objection. I cannot emphasise too much the necessity for including this provision in the principal National Service Act. I concede at this stage that our first amendment was defeated and that if accepted it would have had the effect of repealing the principal Act from 1st January 1972. As this amendment has been defeated I believe it is now the responsibility of the Opposition to put forward the amendments which we have put before this Parliament on other occasions and which we believe would improve the principal Act if they were accepted. Therefore I return to the first pan of the amendment which concerns conscientious objection and conscientious objection to a particular war. Every honourable member in this Parliament is fully aware of the circumstances that have surrounded the cases that have been dealt with in the courts whereby young men have been imprisoned.

Honourable members who have spoken tonight, particularly from this side of the chamber, have referred to those young men who are now imprisoned as a result of their conscientious objection, but in particular as a result of their conscientious objection to a particular war. There will be an opportunity at a later stage to deal with these 3 cases because I propose to move a further amendment which would provide for the release of those young men who are now imprisoned because of their conscientious objection.

Let me refer briefly to these cases. In at least 2 of these cases the young men stated their conscientious objection to conscription particularly on the basis of the Vietnam war. It was quite clear from the statement which was made by one of these young people and which appeared in the Adelaide 'Advertiser' that he had a conscientious objection to the Vietnam war. We believe that it is a principle that ought to be accepted by any democratic government that if the right of conscientious objection is to be recognised there ought to be the opportunity for a person to express his objection to a particular war. I reiterate what I said a few moments ago in relation to the divisiveness that has been created in this country as a result of the treatment of those who wanted to express their conviction and opposition to conscription and who refused to accept the law of this country because they had an objection to a particular war.

Surely this is a democratic process that has been accepted in other countries in relation to their conscientious objection provisions. It is a provision that ought to be accepted by this Government in relation to the national service legislation. It is notorious, of course, that it is much more difficult to obtain recognition of conscientious objection on any grounds in some States than it is in others. One does not blame those who have to apply the law in this respect. I think that they have done what they could under the circumstances having regard to the Act and the manner in which the Act should be interpreted. That brings me to the second part of the amendment which would provide for a commissioner for conscientious objection.

The amendment, therefore, is divided into 2 parts, the first to provide for conscientious objection on the basis of objection to a particular war, and the second to provide for the setting up of a commissioner for conscientious objection in each State. I have already emphasised how difficult it has been for magistrates to interpret this legislation. I think there have been some cases in which a magistrate has granted conscientious objection on the basis of a young man's application for conscientious objection to the Vietnam war. but basically the Act, if it is interpreted correctly, would not allow for conscientious objection on these grounds. Indeed, if my memory serves me correctly, in the Thompson case in 1968 judgment was given that conscientious objection could not be granted on the basis of objection to a particular war.

So I believe that there is a need to adopt a uniform standard in this country in relation to conscientious objection if we are to overcome the problem of disparity between the States and the fact that it has been much easier, for example, to obtain recognition of conscientious objection in South Australia and Western Australia than it has been in New South Wales and Victoria. The last figures provided by the Minister for Labour and National Service (Mr Lynch) do not give a breakdown of the number of cases for each State in which conscientious objection has been granted. On previous figures, which I have quoted in this House, it has been proved conclusively that in some States it has been much easier to gain conscientious objection than in others. In this respect I make no reflection on those whose responsibility it has been to make these determinations but I believe that if there were a uniform code of conscientious objection and if in each State there were appointed a commissioner for conscientious objection it would be much easier for this uniform code to be adopted.

The amendment proposes that there should be appointed a commissioner for conscientious objection in each State. Much of the amendment is purely of a machinery nature in relation to the appointment of a commissioner and in relation to the payment of remuneration. 1 do not think it would be necessary for me to deal with those matters at this stage. Finally, in relation to the appointment of a commissioner for conscientious objection the amendment provides for an appeal from the magistrate to a court of a State or Territory of not less than 3 judges and finally an appeal to the High Court of Australia by leave of the High Court itself. Undoubtedly these provisions which, as 1 have already indicated, can be placed in 2 categories - the right for a person to express conscientious objection on the ground of objection to a particular war, and the appointment of commissioners for conscientious objection - represent an improvement to the Act. I hope that the Minister will accept the amendment. I am sure that there must be some honourable members on the Government side who can at least see some merit in this proposal. 1 hope that they will be prepared to support the Opposition on this occasion. I commend the amendment to the Committee.







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