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Tuesday, 28 May 1968


Mr HUGHES (Parkes) - There is one point I want to raise about this proposed amendment which has not been adverted to so far. I do not want to cover the ground that has been already covered very adequately, if I may say so, by the Minister for Labour and National Service when he explained to the Committee why it would be impracticable, for a number of reasons, to accept the amendment. There is one point that has not been touched on and I will deal briefly with it. Proposed new section 29ba(1.) is as follows:

Where a person claims to be exempt by reason of section twenty-nine a of this Act from liability to render service under this Act, he shall be deemed to be a conscientious objector pending the hearing and determination of his claim . . .

I do not read any further because what comes after that part which I have read is not relevant to the point I wish to make. Looking at so much of the proposed subsection as I have read to the Committee, it can be seen that the amendment, if carried, would place the onus, where an issue arises as to whether a person is or is not a conscientious objector, upon the Crown or the department of proving the negative, namely that the claimant is not a conscientious objector.


Dr J F Cairns (YARRA, VICTORIA) - Why does the honourable member say that?


Mr HUGHES - If the honourable member for Yarra will contain himself in patience I will try to explain it. I take it from the honourable member's interjection that he would regard it as bordering on the preposterous to suggest that where a person claims he is a conscientious objector he should not have to prove his claim.


Dr J F Cairns (YARRA, VICTORIA) - I would not reverse the onus of proof.


Mr HUGHES - I am glad to hear the honourable member say so. Knowing him as I do, I am not surprised, because it would be affronting common sense to suggest that the onus of proof should be reversed. Under sub-section (1.) of proposed section 29ba the person who is claiming that he is a conscientious objector is deemed to be one pending not only the hearing of his claim but pending the determination of that claim.

In other words, at every point of time up to judgment on the claim he has the benefit under this amendment of a presumption in his favour that he is a conscientious objector. If that is not reversing the onus of proof I for one do not know what is. Nothing could be a more clear reversal of the onus of proof. I hesitate to think that the Opposition has been trying to slide an amendment reversing the onus of proof in by a back door method. If it has been, I should be astonished.


Mr Graham - I am sure the Opposition would not do it.


Mr HUGHES - My honourable friend from North Sydney assures me that he also would be astonished, but this is a plain reversal of the onus of proof and, as such, I do not think the amendment can be countenanced.







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