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Wednesday, 19 April 1972
Page: 1269

The PRESIDENT - Order! There is no inhibition on any honourable senator in the debate on the motion for the adjournment to raise any matter that he wishes to raise. It need not be germane to the motion for the adjournment but it must not trespass on any business which has been debated during the course of the day as business of the Senate.

Senator Wright - After the relevant Minister has spoken-

The PRESIDENT - The honourable senator may speak on any matter that he wishes.

Senator CAVANAGH - After the offensive remarks of the Minister for Works (Senator Wright) who has a responsibility to Opposition senators to meet their requirements my statement that I wanted to take only 5 minutes on this matter may not bc a correct one because I think that the Minister's attitude, as well as other things, requires comment. We have reached a stage in the Senate where the Minister thinks that by using superior phraseology and by adopting bulldog tactics in his presentation he has everyone frightened so that they will not dare to raise questions. He is also adopting the attitude that his legal capabilities are such that no-one should query his legal knowledge or his interpretation of an act. I do not have a copy of the National Service Act with me, but I remember very well that recently amendments to the Act were introduced relating to this particular subject. They were such that I participated by moving an amendment for the purpose of rectifying the injustice that might be happening to this lad about whom Senator Brown has spoken today. If we look at this matter, we see that what the Minister said originally was correct, that the objection had to be a conscientious objection to serving, a failure to serve.

These amendments to the National Service Act were debated at length in this chamber. The provisions of the Act in relation to conscientious objection were amended to provide that exemption on the grounds of conscientious objection could be obtained at any time when conscientious objection was acquired. Prior to these amendments, a conscientious objection to be acceptable had to be an objection that one had acquired prior to being called up. But as a result of those amendments at any time, including during Army service, a person who acquires a conscientious objection may have his objection heard by a court to determine whether it is a genuine one.

Apparently up to 3rd March Fox would not plead to this effect. If he had any conscientious objection up to that time he did not make application to have that objection accepted by the court. He was prepared to serve his sentence. I do not know whether he reflected on his attitude after his sentence and thought: 'As I have a conscientious objection, I shall make application for exemption', or whether he now has a conscientious objection to serving which he has acquired since 3rd March. Whatever the position, it is his right to have his case heard by a judge. At any time in the period when he is in gaol serving his sentence, by agreeing to undergo national service he can be released from gaol. Any application for exemption would be based on his conscientious objection to service. It may be a conscientious objection that he has acquired since 3rd March.

If the court does find that this man has a conscientious objection and had that conscientious objection on 3rd March, despite the fact that he never applied to be exempted on that ground at that time, the result will be that this man has been imprisoned unjustly for a period of 6 weeks. Yet he has no obligation at all to serve* Although he had not that obligation he would not exercise his right to apply for exemption, and because he did not exercise that right he was sentenced to imprisonment. This was the only thing that the magistrate could do with him. But Fox has appealed. Until such time as that appeal is heard no one can say whether or not he has an obligation to serve under the National Service Act.

I turn to the Brian Ross case. I agree with the Minister for Works that, when the Brian Ross case came to the notice of the Minister for Labour and National Service (Mr Lynch), the Minister was of the opinion that it might be a case of conscientious objection and that Brian Ross had no obligation to serve under the Act. The Minister appointed Mr Justice Smithers for the purpose of investigating that claim. To get the Government off the hook at that time, in view of the protests on the matter rather than on the basis of the evidence of the lad, the Minister recommended to the Governor-General that he should exercise the prerogative of mercy and Brian Ross was released. Brian Ross was imprisoned for in excess of a year, I think, at a time when he had no obligation to serve. Because of the fact that he had no obligation to serve, he was not in breach of the National Service Act.

So that a similar case would not occur again, despite the defiance of an individual, the National Service Act was amended. By the amending legislation the Minister would be able to prevent such an injustice from occurring. If there came to the notice of the Minister a person with, or if the Minister was of the belief that a person had, a conscientious objection to serving under the Act, the Minister could refer that case to the court for determination. At the time the amending legislation was before us, I questioned very much why the matter was left in the hands of the Minister and how the Minister would determine in which cases a belief of conscientious objection existed which warranted the referral of the matter to the court. I was told that, if any information came to the attention of the Minister which confirmed or hinted to the Minister that someone may have a conscientious objection, the Minister would refer it to the court.

Surety from 3rd March, Fox had indicated to the Minister, or the Minister had sufficient indication, that his case was one of a man with a conscientious objection. What should be determined first in a case in which a man has a conscientious objection is whether he has a responsibility to serve. A hearing should be held on the question of service, but not 6 weeks after action has been taken. Correspondence should not be ignored. The Minister for Works may seek to justify the activities of the Minister for Labour and National Service today. I believe that the waterside workers have the Minister for Labour and National Service heavily engaged at the present time. While the Minister may excuse the activities of the Minister for Labour and National Service today, he cannot deny the neglect of the Department and its failure in these 6 weeks to acknowledge the letters to which I have referred. The Department is at fault in this case. At present a lad is in gaol. There may be no justification for his imprisonment. A lad is in gaol because he would not serve in our military forces but he may not have an obligation for service under the National Service Act.

Because of the determination of some lads not to take advantage of the provisions of the National Service Act, that Act was amended so that the Minister could see that injustices did not occur. Despite the Parliament giving power to the Minister to see that such injustices do not occur, we find that such cases are occurring today. When this matter, with the greatest dignity, is brought to the attention of the Minister for Works in order to try to force some activity from the Minister for Labour and National Service the reply that is given by the Minister for Works, whom we have heard tonight, shows that he is not fit to hold his position because of the manner in which he approaches an ordinary complaint from an Opposition senator.

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