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Wednesday, 19 April 1972
Page: 1264


Senator BROWN (Victoria) - Yesterday I asked a question of Senator Wright, as the Minister representing the Minister for Labour and National Service, relative to a Mr Paul Fox. As I indicated it through my Whip and confirmed it a little later when I met the Minister in the course of the evening, I presume that he was aware that I intended to raise this matter, which is of interest to me, again this evening. I presume that he has a copy of the question and the answer. I want to refer to the question, because it is important. I asked the Minister:

Is it a fact that Paul Fox, who was sentenced to 18 months gaol on 3rd March 1972 for allegedly failing to comply with the requirements of the National Service Act, had applied on 3rd March 1972 to the Department of Labour and National Service for an exemption on the grounds that he was a conscientious objector? Is it also a fact that the Department of Labour and National Service did not acknowledge receipt of the application until 6th April 1972 and advised Mr Fox's lawyer that the matter had been referred for legal advice? Is it also a fact that 2 letters which Paul Fox's lawyer has written to the Department asking for a speedy hearing have not been acknowledged by it? I ask him why there has been such an inordinate delay in fixing a date for a hearing to enable the application by Paul Fox to be tested by a court of summary jurisdiction in accordance with the provisions of section 29b. of the National Service Act. Finally, will the Minister, without further delay, comply with the mandatory provisions of section 29b.(1.) of the National Service Act and fix a date forthwith for the hearing.

The Minister in his reply - I read from Hansard - said, among other things:

It is not a fact that this man Fox on 3rd March made application to be classified as a conscientious objector. The fact is that, at the hearing on 3rd March, Fox who was not represented refused to plead to the charge and a plea of not guilty was entered by the court. He was convicted and sentenced on the same day- that is, on 3rd March - as a person having a clear liability to report for and to render service who hod not done so. He was given an opportunity by the court to undertake to report for service, but refused to do so. He was sentenced as the law requires to a period of imprisonment equivalent to the period of service for which he was liable.

By virtue of section 5 Id of the National Service Act, as a person sentenced to prison for failing to report for service. Fox no longer has any liability to render service under that Act. However, on 6th March - that is, 3 days later - after his conviction the Registrar for National Sevice received a letter dated 3rd March from a different firm of solicitors to that which had represented Fox at the pre-trial hearing, purporting to represent Fox and enclosing an application for consideration as a conscientious objector. That matter received immediate attention. It is a matter upon which legal advice is necessary. Every effort will be made favourably to give an opportunity to have the claims of this man to be classified as a conscientious objector tested by the court if the terms of the Act permit that now to be considered by the court.

That answer was completely unsatisfactory. I want to advert briefly to the statement in the answer by the Minister that it is not a fact that this man Fox on 3rd March made application to be classified as a conscientious objector. I have received today from the solicitor representing Mr Fox - nor purporting to represent Mr Fox but in fact representing him - a photostat copy of Form 7 which, as the Minister would be aware, is the application for determination of the question whether a person is a conscientious objector. It was signed by Mr Paul Fox on 2nd March 1972. I have the covering letter which was forwarded by the firm of solicitors representing Mr Fox. One was addressed to the Governor of the Pentridge Prison, Coburg, and dated 3rd March. It reads:

Enclosed please find copy of application for determination of conscientious objector for your information.

There was also a covering letter sent with the original Form 7 to the Director of the Department of Labour and National Service, 151 Flinders Street, Melbourne, on 3rd March. It reads:

Enclosed herewith original application for exemption on behalf of our client.

It cannot be said, as the Minister said in his answer, that it is not a fact that this man Fox on 3rd March made application to be classified as a conscientious objector. It may well be - I concede this - that between the posting of the application and its receipt there was a lapse of a few days. Nevertheless, it is not true to say that he did not make application. That was the origin of his application. The only reply that has been received by the firm of solicitors who are representing Mr Fox is dated 6th April. According to the Minister's answer, that was the day on which the Form 7 was received by the Registrar of the Department. On 6th April, a Mr R. S. Saunderson, the Registrar of the Department of Labour and National Service, wrote to Messrs J. N. Zigouras and Co., barristers and solicitors, 52 Victoria Street, Carlton 3053. The letter reads:

Dear sirs,

The application by Mr Paul Fox under section 29a of the National Service Act 19S1 as amended for determination of the question whether he is a conscientious objector forwarded with your letter dated 3rd March 1972 has been received and has been referred for legal advice. 1 will let you have further advice shortly in this matter. 1 remind the Senate that at that stage the Department of Labour and National Service was aware that the firm of Messrs J. N. Zigouras and Co., Barristers and Solicitors, 52 Victoria Street, Carlton 3053, Victoria, was representing Mr Paul Fox. Between 3rd March when the letter was written to the Registrar and to the Governor of the prison and when the letter was received from the Registrar of the Department, the representatives of Mr Fox wrote 2 other letters to the Director of the Department of Labour and National Service. One is dated 7th March 1972. It reads:

Re: Paul Fox- ^Conscientious Objection.

We refer to our letter of the 3rd March 1972 enclosing application.

We would appreciate your deleting paragraph (b) of the application, as our client intends to apply for total exemption.

We would also appreciate your co-operation in bringing this matter on for speedy hearing having regard to the circumstances.

I think that the Minister representing the Minister for Labour and National Service would concede that that was an important communication because it did vary the original application by Mr Fox. As the Minister would be aware, form 7, the application for determination of the question whether a person is a conscientious objector, is described in regulation 31 (a) and (b). Mr Fox's representatives were asking the Director to delete paragraph (b) of the original application. No reply was received then and none has been received to this time. On 30th March the legal representatives of Mr Fox again wrote to the Director. The letter reads:

Re: Paul Fox

Attention Mr Tully

Our application for conscientious objection was forwarded on 3rd March concerning the above named and as yet we have received no reply.

We would like to know the reason why a date has not been set in view of the fact that our client has been in gaol since 3rd March.

The letter then proposes certain formal action. The letter finishes 'Yours faithfully'.

It was not until 6th April that the original application, form 7, with the covering letter from the legal representatives of Mr Fox was acknowledged by the Registrar. The letter that acknowledges receipt of the form 7 and the covering letter makes no reference to either of the 2 letters which were sent on 7th March and 30th March. I again refer to the important content of the letter of 7th March to the Director in which the legal representatives of Mr Fox were asking the Director to delete paragraph (b) of the application 'as our client intends to apply for total exemption'. The failure to answer is extraordinary conduct to say the least. The Minister replied to my question. What he said appears at page 1135 of Hansard. Referring to the application filed by Mr Fox, through his legal representatives, the Minister said:

That matter received immediate attention.

That was some time ago. What has happened in the intervening period? Since Mr Fox was imprisoned in the CoburgPentridge Gaol on 3rd March he was visited by and interrogated by a Sergeant Sullivan of the Commonwealth police. It would appear that the reasons for Sergeant Sullivan's visit were two-fold. One was to ascertain when Mr Fox had made the application and had signed the appropriate form 7, and the second, from what I can gather from consultations late this afternoon, was to check his handwriting. I must confess that it is beyond my comprehension why any interrogation took place. This gentleman is known to be represented by counsel. I am led to believe - I am not a man of law - that in ordinary circumstances a person who is likely to be convicted or who has been convicted and is seeking to appeal has the Tight of recourse to his legal advisers. Obviously that was bypassed on this occasion. Does this mean that Mr Fox does not enjoy the normal rights of the ordinary citizen who may have been dealt with for a misdemeanour under common law?

Late yesterday Mr Fox's solicitor fortuitously visited Pentridge Gaol to see Mr Fox. On presenting himself to the general office he learned that Mr Fox was to be transferred to Ararat Gaol, which is approximately 80 miles from the metropolitan area. He may have been moved without the knowledge of his legal adviser if it had not been for the coincidence that his legal adviser arrived at Pentridge that day. Mr Fox's lawyer insisted that he remain in the city area because of the pending application for the consideration of his claim to be a conscientious objector. The lawyer does seem to feel, from my discussions with him tonight, that his main objective in ensuring that Mr Fox remain in the metropolitan area will be achieved. I am informed further that Mr Fox is in what is described as A Division of the Pentridge Gaol, I understand that if a prisoner is to be shifted from one institution to another he is required to sign what is referred to as a sign out. Prior to the intervention of his solicitor, a senior warder - I understand he is referred to as Senior West - had evidently indicated to Mr Fox the likelihood of his transfer to Ararat. Mr Fox was resisting the move. I would imagine that he was not prepared to sign the sign out. I am informed that as a consequence Mr West threatened Mr Fox that unless he played ball things would be made difficult for him. It is very difficult to reconcile the circumstances with the answer given to me by the Minister when he said:

Every effort will be made favourably to give an opportunity to have the claim of this man to be classified as a conscientious objector . . .

If that is his idea of favourable consideration I would hate to think what the position would be if he were to concede that he would deal with him unfavourably.

It would appear to me from what the Minister said - and one does not know this because an answer has not been given - that the Department may very well be looking at section 5 Id of the National Service Act. The Minister would be as familiar with this as I. Section 5 Id states:

A person who has, after the commencement of this section, been sentenced to imprisonment for an offence against section 51 or section 51 a of this Act is not liable to render service under this Act.

I do not know whether the Department is of the opinion that that section precludes the right of Mr Fox to lodge an application and claim to be a conscientious objector and to be entitled to have that claim tested by a court of summary jurisdiction. I find it hard to believe so because as I understand the Act, the Minister has the power to refer a matter to the courts even if the person is in gaol or in no way consents to the determination of the conscientious objection question.

I want to refer in some detail to an event which proves conclusively that what I have just said is a matter of fact. I refer to the case of Mr Brian Ross. I want to make it clear at the outset that 1 am not critical of what happened. In fact, I applauded at the time when the Government had seen fit, by whatever means it utilised, to make provision for Mr Brian Ross to be released from the Sale gaol. I quote this case because there does not appear to me to be any prohibition or limitation as a consequence of section 51d which would dispossess a person, who has been dealt with by the courts and is in fact serving a sentence of the right, to lodge a form 7 and have the ordinary processes of the law carried out.

This is what happened to Mr Brian Ross. He was sentenced to gaol on 29th October 1969 for failing to obey a call-up notice. These are precisely the same sort of circumstances as those which Mr Paul Fox experienced on 3rd March 1972. In August 1970 a representative of the Sale office of the Department of Labour and National Service visited Brian Ross at the Sale gaol and asked him whether he would be prepared to appear at a local court for an inquiry by Justice Smithers. Brian Ross agreed to appear on the due date, which was 24th August 1970, but he would not co-operate in the inquiry. He was returned to the gaol after approximately 15 minutes. Later that day, Justice Smithers rang the gaol and asked Ross whether he would return to have a further talk with him. Ross did return and a discussion took place in a room at the back of the court. The parents of Ross and a friend were present during some time of the discussion. A shorthand writer was also present. Justice Smithers informed Ross that if he wrote to him he would continue the inquiry. Ross did write and told Justice Smithers that he would not go on any further with the inquiry. This took place in the later part of August 1970.

On 3rd September 1970 a Commonwealth car was sent to Sale gaol. It took Ross to Melbourne to meet Justice Smithers and further discussions took place. Three weeks later Ross was released from Sale gaol. The date was 21st September 1970.

I repeat that Ross was dealt with in exactly the same way as Paul Fox. He was serving a sentence; and 11 months after commencing to serve the sentence he was released from Sale gaol. This young man did not plead any special claim and did not want any special treatment. Notwithstanding that, someone - and I feel that he is entitled to be congratulated - found some ways and means of making provision for Brian Ross to be interviewed by a gentleman of high standing who I understand was a judge of the Supreme Court of the Australian Capital Territory. Ross at no time attempted to parade himself or describe himself as a conscientious objector. Eleven months after he commenced to serve in gaol the period equivalent to the liability to render national service he was released. Therefore I think that the Minister will concede, when we take into account the circumstances of Mr Paul Fox, that it is extremely difficult to understand why he has been dealt with in this way.

The original application was received or acknowledged by the Registrar of the Department of Labour and National Service on 6th April. Today it is 6 weeks and one day since that acknowledgement was given by the registrar. It is beyond me why it should take all this time to determine whether Mr Paul Fox has a right under the Act to have his claim tested. I say to the Minister quite sincerely that his answer was not satisfactory in any circumstances. I see no reason why the legal department - I assume it was the AttorneyGeneral's Department to which the Department of Labour and National Service would refer this subject matter - has taken 6 weeks to make up its mind whether or not Mr Paul Fox has a right to have his claim tested. I accept the possibility that the Minister may not yet be able to give me answers to the matters I have raised this evening, notwithstanding that he has had early advice. However, I request him to ask the Minister for Labor and National Service to expedite the facilities that should be made available to Mr Fox to have his claim tested forthwith.







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