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Tuesday, 13 October 1970

Mr BARNARD (Bass) - The Opposition has moved this motion to draw attention to aspects of the National Service Act which urgently need modification and clarification. I refer to the conscientious objection provisions of the Act contained in sections 29a, 29b, 29c and 29d. Some of the Regulations under the Act are also relevant to this discussion. These provisions in toto contain some notable anomalies.

According to section 29a a person whose conscientious beliefs do not allow him to engage in any form of military service is exempt from service as long as he holds these beliefs. A sub-section provides for exemption from combatant duties for those whose military objections do not allow them to engage in military service of a combatant nature. That is, they are excused from duties whose intrinsic nature is inseparable from the conduct of war. I intend to have a closer look at how these duties are defined later in my remarks.

This section also provides that a conscientious belief is a conscientious belief whether it has a religious basis or not. Section 29b and 29c outline the legal procedures for determining the objection and the process of appeal. Finally, section 29d provides that the burden of proof in a conscientious objection claim rests on the person making the claim. This is the basis of the law on conscientious objection; it has remained substantially unchanged since 1953.

The original Act of 1951 in substance took over the National Security (Conscientious Objection) Regulations of 1942 which covered objection during World War II. These wartime regulations provided for a conscientious belief that did not allow the person to perform combatant naval, military or Air Force service. The provision that conscientious objection was to any form of military service was incorporated into the Act in 1953. These provisions did not become an issue in the National Service scheme of the 1950's. Most objectors to that universal scheme of national service came from traditional, pacifist groups such as the Society of Friends, ft was also possible to accommodate non-combatants Within the framework of that scheme; there are many jobs around a peacetime military camp not related to the bearing of arms.

The real test of these provisions came with the Government's commitment of national servicemen to the Vietnam war in 1966. In the subsequent 4 years the conscientious objection provisions have been shown to be completely inadequate. This has resulted from the extremely stringent interpretation placed on the provisions by the higher courts. I do not believe that higher judicial authority is to blame for this. Because of the way the legislation is framed the judges probably have no option but to interpret it in a stringent way. But the result has been to close the exemption granted under the act to scores of genuine conscientious objectors.

One side of the coin is the Act's provision that a conscientious objector is exempt from service as long as he holds his conscientious beliefs. The other is that he cannot get this exemption if his belief is confined to the Vietnam war. The Act gives an exemption with one hand and takes it away with the other. The crucial point at issue is the legal interpretation of the words 'any form of service". Because this has been held to exclude an objection based only on a particular war, it is worth having a quick look at the attitudes of the courts to these provisions.

The first interpretation of any weight was given by Mr Justice Windeyer in the case of William White which honourable gentlemen, will recall as a controversial issue in the 1966 election campaign. Mr Justice Windeyer defined any form of military service in the following way:

Service in any capacity, at any time, anywhere, in any arm, corps or unit.

He said, further, that it seemed to him that the requirement for total exemption was a conscientious and complete pacificism. The judge also pointed to the severity of the Australian law, saying that elsewhere and under other Acts claims for exemption had been upheld because of a conscientious objection to participation only in a war then in progress. Under such provisions it is obvious that an objection based on Vietnam could be sustained'. As Mr Justice Windeyer pointed out, such an objection was permissible in the United Kingdom during World War II. Although the Windeyer definition of conscientious objection under the Act did not have the force of precedent, it had immense influence on the interpretation of the Act. Quite obviously magistrates in the lower courts hearing conscientious objection cases would be swayed by legal interpretation from this source, even though it were obiter dicta. However, there were isolated instances of magistrates applying their own discretion to the Act and interpreting it to allow objection to Vietnam.

The most notable case was Monaghan's case in June 1967 when a young man was exempted because the magistrate found he had a conscientious belief with respect to serving in the military forces at the present time. Unfortunately, the logic of this interpretation did not have a great deal of influence on his fellow magistrates hearing these cases; the great majority preferred to abide by the dicta of Mr Justice Windeyer.

Loopholes of this nature were finally closed in Thompson's case before the High Court in 1968. Here the Chief Justice, Sir Garfield Barwick, interpreted the language of the provisions to mean that the conscientious belief must be all embracing in relation to soldiering, including soldiering in any capacity in the defence, or in aid of the defence, of this country in any circumstances. Sir Garfield said further:

It must be, in my opinion, an objection based on the intrinsic quality of military service and not upon particular targets, purposes or causes, to which it is or is likely to be directed.

According to the Chief Justice, the section required the conviction, viewed as of the present, to be unlimited in relation to time. In other words, to qualify for exemption, a conscientious objection had to be to all military service at any time and in any circumstances, even in the country's defence in the direst circumstances. This was the majority opinion accepted by the High Court and which is, of course, binding on all magistrates hearing conscientious objection cases.

It should be noted, however, there was a minority opinion from Mr Justice Menzies that tended to the view that an objection could be sustained even if it were only to a war being waged at the moment. The judge made the valid point that it was to the obligation to serve here and now that the Act subjected those to whom it applied. Consequently, it was from that service that section 29a of the Act exempted those who came within its terms. In Mr Justice Menzies' view a conscientious belief against serving in any war now being waged would suffice for exemption. Such an interpretation did not give exemption because of objection to a particular war. Because Vietnam is the only war in which Australia is engaged at this moment, it would have the same effect. This interpretation goes much of the way towards removing the worst features of .the administration of this part of the legislation. Unfortunately, the majority interpretation which has binding force of law is couched in the most comprehensive terms. Only an objection to all wars at all times and in all circumstances can win the day in the courts.

Such an interpretation has remarkable implications. Under it, a magistrate could sincerely believe that a young man objects to all wars at all times and in all circumstances. To test this, he could put to the man a hypothetical question on the folowing lines: 'Would your beliefs prevent you from bearing arms if at some future time Australia is invaded and your family is directly threatened?' To sustain his objection the young man would have to answer: Yes'. If he had a genuine doubt that at some time, possibly SO years in the future, a situation could arise where he might engage in military duties, his objection would fail. This is a perfectly feasible projection of what can arise with the allencompassing definition of 'any form of military service' laid down by the High Court. Under the Act there is a specific commitment to undertake national service at a particular time, a time when this country may or may not be at war. Under the Court's interpretation there is an obligation on a young man to predict the beliefs and convictions of a lifetime if he is to be exempted as a conscientious objector. Quite obviously, a young man of 20 cannot say with certainty what his beliefs will be at 30 or 40 or 50. Yet under the present law he must do so and avow that these beliefs will not change.

Something of the absurdity of the present status of the law is implicit in the finding by Mr Justice Smithers in the Brian Ross case. This young man was recently released from prison after the judge found he was a conscientious objector under changes in the National Service Regulations which are still before the Parliament. The judge found that while Ross's beliefs related to the Vietnam war, they went further and forbade participation in all wars or any form of military service. According to the judge, Ross's beliefs were indefinite in point of time and circumstance. He said that Ross was unable to assert positively that it was impossible that in some indefinable and unpredictable circumstance his beliefs might permit him to render military service. Mr Justice Smithers, goes on to say at page 4 of his report:

I find it difficult to understand that a rational person having such an aversion resting upon personal inner convictions as distinguished from religious convictions could honestly deny that his beliefs might change should circumstances change in some unpredictable but important respects.

The Judge is making the obvious point that beliefs may change radically over time; that no-one can say today what he will believe in 10 years time. Yet this is what conscientious objectors have to do under the present wording of the Act and its interpretation by the courts. The Australian Labor Party has said repeatedly and consistently that the definition of conscientious objection is too vague and should be given greater breadth and precision. As interpreted by the Courts and with the onus of proof on the claimant, the present administration of the conscientious objection is excessively severe. There can be no doubt that in almost all cases those who apply for conscientious objector status are men of principle. A genuine draft dodger would not go through the legal process of convincing the court of a non-existent conscientious objection. Such a person would make a simple assessment of his chances under the Act and take to his heels. Some hundreds have cleared the country in this way during the last 4 years; there are also some 100 evaders of the Act within Australia. Quite shameful attempts have been made by supporters of the Government, particularly the Treasurer, (Mr Bury) to link evaders with genuine conscientious objectors. Obviously a young man will not go through the most difficult and agonising legal test of all - the public exposure and test of conscience - unless he is motivated by his most deeply held beliefs.

This Government and the American Government have been most obdurate in clinging to stringent interpretations of conscientious objection. In the United States of America there are signs of a much more flexible policy; a sub-committee of the United States Senate Judiciary Committee headed by Senator Edward Kennedy has proposed a definition of conscientious objection to include selective objection to a particular war. In the opinion of this committee national and clearer standards should be adopted. Where the American definition of conscientious objection has been much too narrowly based, with the main emphasis on religious objection, the Australian definition has been much too vaguely worded. This has thrown responsibility on to the courts, which have interpreted it in the way outlined by Sir Garfield Barwick. This is a perfectly proper way for the courts to act; f make no criticism of that. But with the Vietnam war moving towards the fina) stages the

Government should remove this burden from the courts and amend the Act. It should make the concession it has refused stubbornly to make - to extend conscientious objection to cover a particular war.

I believe that for the Government to adopt this attitude is completely- wrong and unjustified. For example a man might object to the use of napalm or the practice of classing civilian occupied territory as freefire zones. A deeply held antipathy to such a course of military operation could be the only basis for conscientious objection. Obviously, under the present law an application for exemption would not have any chance of succeeding no matter how deep and fervently held the objection. An objection of this sort can form and colour the whole nature of a conscientious objection to a particular war.

Mr SPEAKER -Order! The honourable gentleman's time has expired.

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