R v District Court

High Court of Australia|1968-07-01|Before: Menzies JJ

The applicant applied to a stipendiary magistrate in the Magistrates Court at Mount Isa, in the State of Queensland, as a court of summary jurisdiction of a State within the meaning of s. 29B of the National Service Act 1951-1965 of the Commonwealth (the Act) and as exercising the federal jurisdiction thereby conferred, to be exempted from liability to render service under the Act on the ground that he holds a conscientious belief that does not allow him to engage in any form of military service, whether combatant or non-combatant. The magistrate after an oral hearing dismissed that application.

The applicant then appealed to the District Court in exercise of his rights under s. 29C of the Act. The District Court again after an oral hearing made an order which recited the said application and its dismissal by the magistrate, the hearing before itself of the appeal and adjudged that the appeal be dismissed. However, the District Court judge gave reasons for judgment which were taken down and transcribed. They were exhibited in the present application to this Court. In those reasons the judge said:

He is not a total pacifist because he would be prepared to bear arms in circumstances in which he would consider their use constituted only self defence. By this term, I understand him to mean the defence of Australia on its territory.

It was submitted on his behalf that so long as the Vietnam war continues and while there is no threat of direct attack on Australia, he holds conscientious beliefs which do not allow him to engage in any form of military service, and that in consequence, he is entitled to exemption under s. 29A (1).

I do not think that this conclusion follows the correct reading of the section. I construe it as referring to a person whose conscientious beliefs do not allow him to engage in any form of military service in any circumstances. I regard it as conferring exemption, as a right, so long as he holds those absolute beliefs. As I see it, this right is terminated by a subjective change in his beliefs but not by an objective change in political events.

His Honour cited from the judgment of my brother Windeyer in Reg. v. The District Court; Ex parte White [1] , and concluded:

I have no real doubt as to the genuineness of the beliefs set up by the appellant and that, in the present circumstances, service in any form would be against his conscience. At the same time, I think he cannot, for the reasons I have given, claim exemption as a legal right.

The applicant makes three principal submissions. First, he says that the reasons orally given by the judge form part of the record of the District Court, itself a court of record (s. 7 of The District Courts Acts, 1958 to 1965, of the State of Queensland, the Act, then in operation): see also ss. 3 (2) (f) and 6 (1) of The District Courts Act of 1967. Secondly, he says that those reasons show that the judge misdirected himself as to the proper construction of s. 29A (1) of the Act and thus the record on its face shows an error of law. Lastly, he submits that this Court has jurisdiction to issue certiorari in the circumstances, particularly as the Commonwealth is a respondent to the order nisi granted in this matter.

29a. (1) A person whose conscientious beliefs do not allow him to engage in any form of military service is, so long as he holds those beliefs, exempt from liability to render service under this Act.

I take the finding of the trial judge to be no more and no less than this, that the applicant has no conscientious belief which prevents him in general from being a soldier, combatant or non-combatant, but that he has a conscientious belief which prevents him in particular from being a soldier, combatant or non-combatant, in or in connexion with the conflict at present existing in Vietnam. For convenience, I have used the word "soldier" to cover all military personnel and, in particular, all military personnel comprised within the Act. We are not, in this application, concerned with the propriety of the conclusion at which the judge arrived. If we were, we would need to consider whether the judge had sufficiently distinguished intellectual persuasions from conscientious objections. But our concern in relation to the second of the applicant's submissions is merely with the proper construction to be placed upon the statutory language I have quoted.

Having regard to the clear conclusion I have reached in that connexion, I have found no necessity to express a concluded opinion upon either of the other submissions which the applicant makes. The question of this Court's power to grant certiorari as the substantive relief in a proceeding before it thus remains for me a question yet to be decided. I have already in Collett v. Loane [1] expressed my doubts in this respect, doubts which still remain. Further, I refrain from expressing any opinion as to the validity of the proposition that the reasons for judgment form part of the record of a Court of Record, which in its order does not include or incorporate them.

My brother Windeyer in the judgment to which the District Court judge referred sets out the historical development of statutory exemption from military service and I have no need to go over that ground. It seems to me that, having regard to that development, the expression in s. 29A (1) "in any form of military service" means "in military service at all, whether combatant or non-combatant". The succeeding sub-sections to my mind reinforce that conclusion. Though not, of course, in this respect, authoritative, the prescribed form of order, Form 11, for a magistrate who rejects an application for exemption, follows out the same line of thought.

In approaching the construction of s. 29A it must be remembered that the Act is an Act of indefinite duration, not confined in its operation to any particular war or to any particular external military operation but enacted as part of the general defence preparedness of the country in times of peace though, of course, available as well in times of military activity within or outside Australia. This is so, in my opinion, even though the precursor of s. 29A (1) was inserted in the then National Service Act in 1942 at a time when conscription for military service in time of war was introduced. Further, the exemption for which the section provides is by way of concession on the part of the Parliament. The proper meaning of the words of the section represents the limit of the legislature's willingness to make such a concession to those who enjoy the country's protection. Without agreeing with what Sir Samuel Griffith said in Krygger v. Williams [1] as to non-combatant service, it might well be thought that the concession in that respect is generous.

First of all, the section speaks of a present conscientious belief. A conscientious belief because it is a matter of conscience with its compulsive quality is durable though not unchangeable. The use of the expression "does not allow" in the section reflects the depth and nature of the required conviction. The inclusion of non-combatant service in the exemption indicates the wide sweep which the conscientious objection must have. Such a belief must be carefully distinguished from mere intellectual persuasion which by its very nature may be transient.

As I have already indicated, in my opinion, "in any form of military service" means "in military service at all". Consequently, the language of the section, in my opinion, requires that the present 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. 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. Also, in my opinion, the section requires the conviction, viewed as of the present, to be unlimited in relation to time. To my mind, the section calls for the existence of a present compulsive and complete conscientious aversion to military service of any kind including non-combatant service at any time and in any circumstances, even in the country's defence in the direst circumstances.

Though durability is in general a quality of the demands of conscience, conscientious beliefs as I have said may change: and for such change the Act makes allowance and provision. But that such beliefs may change does not, to my mind, impinge upon the proposition that the section requires a present conscientious belief which presently does not allow of participation in military service of any kind at any time.

Counsel for the applicant, with great persuasion, placed the emphasis in relation to military service upon the submission to discipline which such service involves and which robs the individual of his capacity to conform to particular requirements of his conscience. Having made this proposition his foundation, he submitted, in substance, that though the applicant had no conscientious aversion in general to the bearing of arms or to the performance of military service, he came within the scope of the section if there were any aspect of the duties he would or might be required to perform in his military service to the performance of which he had or would have a conscientious objection. In short, he submitted that if there were any single act which he might be ordered to do and to which he had such an objection, he was relevantly a person who could not engage in any form of military service. But, in my opinion, such a proposition is untenable: it really reverses the significance of the word "any" in the expression "engage in any form of military service" replacing it with the word "some" and giving to the words "form of military service" the sense of an arm, or aspect of the work, of defence forces. It asserts that a person whose beliefs prevent him from engaging in some act of military service is a person who is so prevented from engaging in any form of military service. Clearly, in my opinion, that is not a proper construction of the words of the section.

Generally, therefore, in the sense of these reasons, I agree with what my brother Windeyer has said in the particular passage of his judgment in Reg. v. The District Court; Ex parte White [1] to which reference has already been made.

Therefore, even if the judge's reasons for judgment did form part of the record of the District Court, no error of law in relation to the meaning of the Act appears in those reasons. Consequently, I would discharge the order nisi.

In these proceedings the applicant, Bruce Thomas Thompson, seeks an order that a writ of certiorari issue to remove into this Court certain proceedings in the District Court of the Northern District of the State of Queensland and that upon such removal the same be quashed because of an error of law said to appear on the face of the record of that Court. The proceedings in the District Court arose out of an application by Thompson to a stipendiary magistrate in the Magistrates Court at Mount Isa to be exempted from liability to render service under the National Service Act 1951-1965 Cth on the ground that he held a conscientious belief that did not allow him to engage in any form of military service. This application was dismissed. Pursuant to s. 29C of the Act, Thompson appealed to the District Court. After an oral hearing the District Court judge gave reasons for judgment and made an order that the appeal be dismissed. In these reasons the judge stated that the present applicant

has reached the conclusion that it is wrong for Australian troops to be fighting in Vietnam and I find that, as a consequence, he has conscientious beliefs which do not allow him to engage in any form of military service which might to any extent, assist in the prosecution of that war. The conclusion reached by the judge was: I have no real doubt as to the genuineness of the beliefs set up by the appellant and that, in the present circumstances, service in any form would be against his conscience. Such a conscientious belief was not sufficient, in the opinion of the learned District Court judge, to entitle the applicant to an exemption pursuant to s. 29A (1) of the National Service Act 1951-1965 from liability to render service under that Act.

The three questions raised in this application are: first, whether this Court has jurisdiction to issue certiorari in these circumstances; secondly, whether the reasons given by the judge form part of the record of the District Court; and thirdly, if these reasons do form part of the record, whether such record discloses an error of law on its face as regards the construction of s. 29A (1) of the Act.

The order nisi for writ of certiorari granted in this Court on 18th March 1968 orders several parties, including the Commonwealth of Australia and the Minister of State for Labour and National Service, to show cause before this Court why a writ of certiorari should not issue. The effect of this order is, in my opinion, to indicate that "the Commonwealth or a person suing or being sued on behalf of the Commonwealth" - the Minister of State for Labour and National Service - is a party to the controversy arising out of the claim by the applicant that the decision of the District Court of Queensland shows an error of law on the face of the record which affects an immediate right to which he is legally entitled. The right of the Minister to be represented as a party in the original proceedings is expressed in reg. 47 of the National Service Regulations, and, the Minister is given a right of appeal to a court of review by s. 29C of the Act. Section 75 (iii.) of the Constitution would therefore give this Court original jurisdiction in the matter if the Court also has power to grant relief in the application. Order 55 of the Rules of Court enables this Court in certain circumstances to grant a writ of certiorari to remove a judgment, order, conviction or other proceeding of an inferior court or tribunal, or of a magistrate or justice, into this Court for the purpose of its being quashed. This rule derives its force from s. 86 of the Judiciary Act 1903-1965 Cth. Section 32 of the Judiciary Act 1903-1965 also grants to this Court in the exercise of its original jurisdiction the power to grant

all such remedies whatsoever as any of the parties thereto are entitled to in respect of any legal or equitable claim properly brought forward by them so that as far as possible all matters in controversy may be completely and finally determined . In my opinion the power to issue a writ of certiorari in cases within its jurisdiction inheres in this Court by virtue of s. 71 of the Constitution which vests the "judicial power of the Commonwealth" in this Court. (Cf. In re Foreman & Sons Pty. Ltd.; Uther v. Federal Commissioner of Taxation [1] .) 1. (1947) 74 C.L.R. 508.

For certiorari to lie in the circumstances of the present application the applicant must show an error of law on the face of the record. The record in this case consists of the formal order of the District Court held at Townsville, Queensland, dated 22nd November 1967. This order, after reciting certain facts, states:

It is this day adjudged that the Appeal be dismissed and that there be no order as to costs. The National Service Regulations in force under the National Service Act 1951-1965 lay down forms of orders granting or refusing exemptions to be made by courts of summary jurisdiction hearing such applications. These forms make no provision for the expression of reasons. Section 29C of the Act refers to an appeal to a court of review which may affirm, vary or reverse the decision of the court of summary jurisdiction. For all relevant purposes the Regulations provide that the practice and procedure of the court of review with respect to civil actions apply to and in relation to appeals under section 29C of the Act in so far as they are applicable (Reg. 38a (7)). The court of review in the present instance is the District Court of Queensland and there does not appear to be any provision requiring a judge of that Court to put his reasons for judgment in writing or which makes reasons put into writing part of the court record. The function of this Court upon proceedings for certiorari is one of supervision, not of review (Overseers of the Poor of Walsall v. London and North Western Railway Co. [1] ; R. v. Nat Bell Liquors Ltd. [1] ). In exercising this function the Court is concerned to examine the record of the inferior tribunal both as to the area of jurisdiction and observance of the law. In my judgment the record in the present case does not display either an excess of jurisdiction or an error of law in exercising such jurisdiction. 1. (1878) 4 App. Cas. 30. 2. [1922] 2 A.C. 128.

The matter pointed to by the applicant as showing an error of law was the reasons for judgment of the learned District Court judge. In the course of these reasons the learned judge construed s. 29A (1) of the National Service Act 1951-1965

as referring to a person whose conscientious beliefs do not allow him to engage in any form of military service in any circumstances. He adopted the view that "any form of military service" means service in any capacity, at any time, anywhere, in any arm, corps or unit. The requisite for total exemption is thus, it seems, a conscientious and complete pacifism (per Windeyer J. in Reg. v. The District Court; Ex parte White [2] ). 1. (1966) 116 C.L.R. 644, at p. 661.

The liability to render service as required by or under the Act is, as regards the specified persons, a present and immediate obligation (s. 25). Such obligation only continues for a defined period which may vary in length depending upon the category in the Act into which the person falls. Section 29A (1) exempts certain persons from such liability so long as they hold conscientious beliefs which do not allow them "to engage in any form of military service". Therefore, by implication, the conscientious beliefs required to be established by a person seeking exemption must be beliefs which at the time of his application do not allow him to engage in any form of military service which he would otherwise be required to render at that time under the National Service Act 1951-1965. Such service, therefore, to which his conscientious beliefs must relate is limited to service in the "Military Forces of the Commonwealth by virtue of a notice under section twenty-six of this Act" (s. 4, sub-s. (2)). This conclusion is supported by the meaning to be given to the term "military service", as used in s. 29A. This term is not defined in the Act, but s. 4 (3) enacts that:

Unless the contrary intention appears, words and expressions used in this Act have the same respective meanings as in the Defence Act 1903-1964. The words "military service" appear to be used in the Defence Act 1903-1964 as referring only to service in the "Naval and Military Forces of the Commonwealth" as required by that Act (e.g., ss. 5, 41 (1) (c), 50). The meaning to be given to the words "any form" is also indicated by a comparison of the present legislation with preceding legislation. Under the National Security Act in force during the Second World War certain National Security (Conscientious Objectors) Regulations were made, reg. 8 (1) of which referred to beliefs that it was wrong "to perform naval, military or air force service, whether combatant or non-combatant". In my opinion the shortened phrase used in the present Act does not significantly alter the scope of the belief required from that required under this earlier regulation.

It is an integral part of military service in the military forces of the Commonwealth that a member of these forces must obey any lawful orders of a superior or commanding officer given to him to do or refrain from doing, as a member of these forces, certain acts (The Commonwealth v. Quince [1] ). Any act done in obedience to such orders is a form of military service. A person who is liable to render service under the Act, if not granted an exemption under s. 29A, is liable to be lawfully ordered and required to perform any act that a member of the military forces of the Commonwealth at that time may be commanded to perform. If the inner convictions of what is morally right and morally wrong which a person holds (see Dwyer C.J. in Grondal v. Minister of State for Labour and National Service (unreported 11th September 1953)) do not allow him to engage in any such act at the time of his application for exemption then, in my opinion, his conscientious beliefs do not allow him to engage in any form of military service within the meaning of s. 29A of the Act. An exemption under this section, if granted, only continues during the specified period of liability to render service so long as the person continues to hold such beliefs.

The factors contributing to the formation and continuance of such a conscientious belief on the part of a person are not expressly limited by the Act. The ground of the belief need not be of a religious character or part of the doctrines of a religion (s. 29A, sub-s. (5)). In my opinion a person's convictions of moral rightness and wrongness could be such as to give rise to a conscientious belief that any act done by him in any capacity as the result of his obligations as a member of the military forces of the Commonwealth at a particular time is contrary to such convictions because of his contribution towards or liability to participate in a particular activity of those forces at that time. In the present case, however, because the conclusion of the learned District Court judge as to the construction and effect of s. 29A (1) of the National Service Act 1951-1965 does not appear on the face of the record I am of opinion that the order nisi should be discharged.

By s. 25 of the National Service Act 1951-1966 Cth a person who fills a certain description and is not exempt from liability to render service under that Act is made liable to render service as required by or under the Act. The service referred to is service in the military forces of the Commonwealth by virtue of a notice under s. 26 (see sub-s. (2) of s. 4), and such a notice is one served by the Secretary to the Department of Labour and National Service calling up that person for service with the military forces of the Commonwealth.

It is provided by sub-s. (1) of s. 29A that a person whose conscientious beliefs do not allow him to engage in any form of military service is, so long as he holds those beliefs, exempt from liability to render service under the Act; and it is provided by sub-s. (2) of the same section that a person whose conscientious beliefs do not allow him to engage in military duties of a combatant nature but allow him to engage in military duties of a non-combatant nature, shall not, so long as he holds those beliefs, be required to engage in duties of a combatant nature.

The question which the present proceedings are designed to raise is whether, on the true construction of s. 29A (1), a person is exempt from liability to render service under the Act if his conscientious beliefs do not allow him to engage in any form of military service so long as the Vietnam war continues and there is no direct attack on Australia, but do allow him to engage in military service in other circumstances, and particularly in circumstances in which Australia is defending herself against direct attack.

I find it unnecessary to decide whether an application to this Court for writ of certiorari is an available procedure for the determination of the question, or whether an error of law can be relied upon in support of an application for certiorari where, though it is discoverable from the reasons for judgment of a District Court judge when refusing an appeal against a decision that a person is not exempt under s. 29A, the error does not appear on the face of the formal order of the District Court. These are moot points which, in the view I take of the meaning of s. 29A, are academic in this case and may be put on one side without discussion.

On the question of construction I should say at the outset that I do not think any assistance is to be derived from the broad generality of the reference to engagement "in any form of military service", for the quoted expression refers only, I think, to the various kinds of service which are or may be comprised in the total concept of military service. I do not read it as relating to any question of the period, or the national situation, in which military service is to be performed. The ground upon which I reach a conclusion against the applicant's contention is simply that according to the natural meaning of the language of s. 29A (1) a person who asserts that he is exempt from service under the Act because his conscientious beliefs do not allow him to engage in military service asserts an absolute proposition. He does not make it good by proving only that his conscientious beliefs do not allow him to engage in military service on a particular kind of occasion or in a particular kind of situation in which the country may find itself. He must prove that they forbid him to engage in military service at all.

This would be plain enough, in my opinion, even if the sub-section did not contain the words "so long as he holds those beliefs"; but the presence of those words seems to me to put the matter beyond doubt. It is inconceivable that the Parliament should have intended that the exemption might continue into a period or state of affairs in which the conscientious beliefs, though still held, do not forbid the person who holds them to engage in military service; yet that would be the result unless the expression "do not allow him to engage in any form of military service" means "are such that while he holds them he cannot, consistently with them, engage in any form of military service."

The reasons prepared by the Chief Justice and by Kitto J. in this matter substantially express the view which I also entertain concerning the construction of s. 29A (1) of the National Service Act 1951-1965. However I desire to add a few words for myself.

The ground taken in the order nisi is that the learned District Court judge, having found that the applicant held a conscientious belief which did not allow him to engage in any form of military service in the armed forces of the Commonwealth so long as those forces were engaged in the current conflict in Vietnam, erred in law in going on to hold that such belief did not entitle the applicant to exemption from liability to render service under the Act. The basis of his Honour's finding was that the applicant had formed the opinion that "it is wrong for Australian troops to be fighting in Vietnam" and that "as a consequence, he has conscientious beliefs which do not allow him to engage in any form of military service which might, to any extent, assist in the prosecution of that war". These beliefs, it is said, "extend to serving as a non-combatant on the Australian mainland, since he considers that both non-combatants and combatants contribute to war, and that even clerical work done in the Army here liberates men to fight in Vietnam".

The condition for exemption from liability to render service under the Act is expressed in s. 29A (1) and exemption is accorded to any person "whose conscientious beliefs do not allow him to engage in any form of military service". In my view the requirements of the section are not satisfied by proof of the existence on the part of an applicant of a belief that the Commonwealth is engaged abroad in an unjust military enterprise and that, for this reason, he objects to serving in the military forces of the Commonwealth; the belief which must be shewn to exist is one which will constitute a conscientious objection to military service simpliciter. The exemption to which the relevant belief entitles an applicant is exemption "from liability to render service under this Act" and it is not without significance that the criterion for exemption is not expressed by reference to a belief, or beliefs, which do not allow an applicant to render service under the Act, or, more specifically, to engage in military service with the military forces of the Commonwealth; the section speaks simply of a belief, or beliefs, which do not allow him to engage in any form of military service, and to my mind, this means an objection to military service as such and not an objection to engaging in military service with the Commonwealth because of some current or prospective military operation in which it is engaged and which the applicant believes to be unjust or wrong. To hold otherwise would mean that exemption would be available to a person having no objection to engaging in military service with any country except the Commonwealth and, clearly enough, the section was not intended to produce and does not produce this result.

Being of this opinion I also find it unnecessary to express any view concerning the competency of the proceedings or whether the alleged error of law appears on the face of the proceedings.

Assuming without deciding that certiorari would lie here for error of law on the face of the record, I do not think that the reasons for his decision given by the learned judge of the District Court of Queensland do form part of the court record. When it is provided, as it is by s. 29C (7) of the National Service Act 1966 Cth, that the decision of a court of review is final and conclusive, I do not think that the decision can be impeached by the simple expedient of treating the reasons given for the decision as part of the record and then examining those reasons for error of law.

The National Service Regulations made under the Act provide forms for orders granting or refusing exemptions which are to be made in a court of summary jurisdiction. These provisions are hardly consistent with treating any reasons given by a magistrate as part of the record of proceedings in the court. The Act provides for an appeal from a court of summary jurisdiction to a court of review which "may affirm vary or revise the decision of the court of summary jurisdiction". The court of review here is the District Court of Queensland which is a court of record. There is a District Court registry and the duty of a registrar is inter alia to sign and issue summonses and warrants and register the records and judgments and keep minutes of the proceedings of the court. By the District Court Rules the registrar is required inter alia "to seal and issue all judgments and orders of the court". I have found nothing in the Act or the Rules - even if rr. 231 and 232 of the District Courts Rules 1968 apply - to require a judge of the Court to put his reasons for judgment in writing or which constitute reasons put into writing as part of the court record. It seems clear that the reasons are not a judgment or order to be sealed by the registrar. In my opinion the reasons given by the learned District Court judge in this case are not part of the court record. The conclusion which I have formed is, I consider, supported by the decision of the House of Lords in Overseers of the Poor of Walsall v. London and North Western Railway Co. [1] , where the distinction is drawn between a "speaking order" containing, by way of recital, the grounds of the decision and an "unspeaking order" notwithstanding that the grounds of the decision may have been stated in reasons outside the order.

Having based my decision upon the ground stated it is not necessary for me to decide the question, which has arisen, about the construction of s. 29A of the National Service Act but, with great respect to those who think differently, I am not satisfied that the section should be read as relating to a belief against engaging in any form of military service at any time rather than as relating to a belief against engaging in any form of military service at the time when the exemption is sought. It seems to me that some implication has to be made and I prefer to read the section as relating to a belief concerning the present rather than a belief concerning not only the present but also the problematical future. The construction of the section which I have difficulty in accepting would, of course, deny an exemption to any person who failed to answer affirmatively the question

Would the beliefs which you now hold as a matter of conscience prevent you from engaging in military duties if Australia were in the future, and after the war in Vietnam is over, to be invaded by an enemy? The section can be read to produce this result but I think it can be read differently, and the reading which commends itself to me would entitle a person to an exemption who answered affirmatively and credibly the question Do the beliefs which you now hold as a matter of conscience prevent you from engaging in any military duties at the present time even to defend Australia from invasion? After all it is to the obligation to serve here and now that the Act subjects those to whom it applies and it is from that service that s. 29A exempts those who come within its terms. It is, I think, with the present that the section is concerned, not the unknown future. It is, of course, to be observed that my reading of the section would not entitle an objector to exemption because he had conscientious beliefs against serving in a particular war; it is only a conscientious belief against serving in any war now that would suffice. Furthermore a person is entitled to an exemption only so long as he holds the requisite belief. The construction of s. 29A (1) which commends itself to me is not in any way inconsistent with recognition of this.

However, for the reasons given earlier I consider that certiorari must be refused.

High Court of Australia Barwick C.J. McTiernan, Kitto, Taylor and Menzies JJ. R v District Court (Queensland Northern District); Thompson, Ex p [1968] HCA 48

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