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Tuesday, 20 April 1971


The PRESIDENT - I was busily engaged when Senator Keeffe mentioned that point. Are these cases current for hearing?


Senator KEEFFE - In deference to the point raised by the Minister I will refrain from mentioning those 2 cases and will relate my argument to the case of David Martin who has already been dealt with. I assume that would be in order.


The PRESIDENT - Yes. It would not be right to discuss other cases.


Senator KEEFFE - 1 shall base the whole of my argument on 1 incident and still highlight the points that I want to raise. Let me quote from the American case as presented by President Eisenhower. As early as 1953, before the present scale of American aid was envisaged,' President Eisenhower, speaking at a governors conference, gave a very- practical reason for American concern in the fate of IndoChina. These" are the then President's words:

Now let us assume, that we lose Indo-China. If indo-China goes., several things happen right away. The peninsula, the last bit- of land hanging on down there, would bc scarcely defensible. The tin and tungsten that we so greatly value from that area would cease coming. . . . So, when the United States votes $400m to help that war, we are not voting a give away programme. We are voting for the cheapest way that we can prevent the occurrence of something . that would be of most terrible significance to the United States of America, our security our power and ability to get certain things we need from the riches of Indo-China and from South East Asia.

That statement was incorporated in a speech to a Governors' conference held on 4th August 195-3 which was before the Geneva Accords on -Indo-China. So, all this aid went back to the French.

We are told by the Government that Australian troops are in South Vietnam to fight Communism. This statement by Eisenhower was backed further by the New York Times' on 12th February 1950 which stated:

Indo-China is a prize worth a large gamble. In the North are exportable tin, tungsten, zinc, manganese, coal, lumber and rice, rubber, tea, pepper and hides. Even before World War II Indo-China yielded dividends estimated at S300m a year.

That further supports the statement made by former President Eisenhower.

I turn to the next submission that 1 wish to make on which I will be interested to hear the views of the Minister for Works (Senator Wright), who is an eminent lawyer. The procedure adopted under the National Service Act for selecting personnel for service in the armed forces is a ballot on the basis of dates of birth. It is contended that this method of selection contravenes section 117 of the Commonwealth Constitution. Such being the case, the National Service Act could be determined by a court to be invalid. This is the submission that I am putting to the Minister, and I will back the case.

First of all, 1 think that we ought to know what section 117 of the Commonwealth" Constitution provides. It is as follows:

A subject of the Queen, resident in any State, shall not be subject in any other State to any disability or discrimination which would not be equally .applicable to him if he were a. subject of the Queen resident in such other State.

To illustrate my argument on how discrimination can exist between States, I take the case of a lad who was born in Brisbane at 12.20 on the morning of 20th March" 1951 and compare it with the case of a child who was born at that same instant in South Australia or Western Australia, lt would not be unreasonable that a male child could have been born at the same time in those States. In these circumstances the date of birth of the child in South Australia or Western Australia would be 1 9th March 1 95 1 . This argument may be laughable in the view of some senators on the Government side, but, nevertheless, it is a very real thing. I am calling into doubt the validity of the National Service Act in relation to section 117 of the Commonwealth Constitution. These 2 boys would be required to register for national service. Although they were born at the same instant, the child born in South Australia or Western Australia would register his date of birth as 19th March 1951 whereas the child born in Queensland would register 20th March 1951 as his date of birth.

A recent ballot for national service conducted by drawing marbles bearing birth dates resulted in a marble bearing the date 20th March being drawn out. Although the boy born in Brisbane would be called up in that case, the lad born in South Australia or Western Australia at the same time as the boy born in Queensland would not be called up because he was fortunate enough to have been born on the previous day. Having regard to this illustration, which conversely could be favourable to boys born in the eastern States and unfavourable to boys born at the same instant in western States of the Commonwealth, it is felt that discrimination does exist between residents of the various States and that the Commonweath Constitution is contravened. In such an event, the National Service Act should be declared null and void. I am submitting that as a theory. I think that it has a certain amount of validity.

I turn to the other points that I have raised. I said, first of all, that a more flexible law ought to apply in respect of youngsters who qualify for exemption on the ground of conscientious objection, but who do not wish to take the easy way out and then are forbidden by magistrates to present their case in the proper manner. Because of the legal doubt raised by the Minister in respect of the cases under consideration, I confine my remarks to the case of the lad who has been fined $40. The charges and fines will escalate as time goes on. The second point on which I seek the view of the Government is in regard to whether President Eisenhower was right when he said that America had to become involved in Indo-China for the riches it would obtain and not because it wished to fight the Communists. My third point concerns the validity of section 1 17 of the Commonwealth Constitution.







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