Regina and The District Court of the Metropolitan District Holden at Sydney and Others [1966] HCA 69

Regina and The District Court of the Metropolitan District Holden at Sydney and Others [1966] HCA 69 - HCA 1966 case summary — Zoe

[30]

I am not disposed to a narrow view of the scope of either certiorari or prohibition or of the power of this Court to use these writs and also mandamus to ensure that administrative tribunals exercising functions under Commonwealth law proceed according to law and keep within the law. But we must not use these writs to give an appeal on the facts. As Morris L.J. said in R. v Northumberland Compensation Appeal Tribunal; Ex parte Shaw [1] , "It is plain that certiorari will not issue as the cloak of an appeal in disguise. It does not lie in order to bring up an order or decision for rehearing of the issue raised in the proceedings". And on top of the limitations of the scope of the prerogative remedy, which are inherent in its nature and arise from its history, there are also in this case some questions, peculiar to this Court, both of jurisdiction and of parties. It is at least questionable whether certiorari to quash proceedings of an inferior tribunal can issue from this Court as a substantive remedy not ancillary to some proceeding otherwise within the original jurisdiction of the Court. However that may be, I do not on the other aspect discussed in the argument, the parties, accept the proposition put for the Commonwealth that the Commonwealth is not a proper party to the proceedings. It was said that the Commonwealth, as a political and juristic entity, is not interested in the outcome of these proceedings; that, although it has an interest when men become members of the Defence Force, it is not interested, in a relevant sense, in the question of whether particular persons may or may not be recruits to the service. That seems to me to be a mistaken distinction. Both the Minister and the Commonwealth are, I consider, proper parties interested in maintaining the order that was made by the magistrate and confirmed by the court of review. But, in the view I take, these procedural questions can be left on one side, and the question asked whether the case is otherwise one in which either prohibition or certiorari can issue. To have the former it must be shown that in making the order that he did the learned District Court judge, sitting as a court of review, acted without jurisdiction or went beyond his jurisdiction. To obtain the latter an error of law must appear on the face of the record.

[42]

In England in the eighteenth and early nineteenth centuries, if any person "being one of the people called Quakers" should be chosen by ballot for the militia he might be excused from serving if he produced a certificate from two reputable householders who were Quakers that he was of their persuasion: see e.g. the Militia Act 1803, 42 Geo. III, c. 90, ss. 27, 42, 50, 51. Similarly when conscription was introduced for the Union Army in the American Civil War there was an exemption from combatant service for "members of religious denominations who shall by oath or affirmation declare that they are conscientiously opposed to the bearing of arms and who are prohibited from doing so by the rules and articles of faith and practice of the said religious denominations". The same idea, expressed in much the same words, became part of the law of the Commonwealth of Australia shortly after Federation when s. 61 of the Defence Act 1903 Cth exempted from the general obligation of service in time of war - "persons whom the doctrines of their religion forbid to bear arms or perform military service". Similar words were used when, in 1909, the Act was amended to provide for compulsory military training in time of peace. Section 143 (3.) then provided that "all persons liable to be trained who are forbidden by the doctrines of their religion to bear arms shall so far as possible be allotted to non-combatant duties". This was the section which came before this Court in Krygger v Williams [1] . In 1910 a new section was substituted for the original s. 61. The reference to religion was abandoned and the exemption was of "persons who satisfy the prescribed authority that their conscientious beliefs do not allow them to bear arms", but with a proviso that "the exemption shall not extend to duties of a non-combatant nature". The section was again amended, by Act No. 38 of 1939, assented to on 26th September 1939, by omitting the words "who satisfy the prescribed authority". The exempt class thus became simply "persons whose conscientious beliefs do not allow them to bear arms". The phrase "conscientious beliefs" was then for the first time defined. It meant "all conscientious beliefs, whether the ground thereof is or is not of a religious character, and whether the beliefs are or are not part of the doctrines of any religion".

[43]

This was the state of the law in Australia at the beginning of the Second World War. The exemption was still only from combatant duties. Indeed until February 1942 there was in Australia no statutory authority for total exemption on grounds of conscience, such as was allowed for in the United Kingdom by the National Service (Armed Forces) Act, 1939, s. 5: (see Appendix 5 of Volume 1 Series 4 of the Australian Official History of the War of 1939-1945). This was remedied in February 1942 when a National Security Regulation (S.R. 80) provided for total exemption in some cases and exemption from combatant duties in others. It did so by using substantially the same form of words as those which now appear in the National Service Act, 1951-1965 with which we are concerned in this case. When that Act was first enacted in 1951 these provisions for exemptions on the grounds of conscientious beliefs were in s. 29 along with exemptions on other grounds there set out. As a result of the amendment made in 1953 they now stand by themselves in s. 29A and questions arising are to be decided according to ss. 29B, 29C and 29D. If it be necessary to elaborate the meaning of a conscientious belief for present purposes, I adopt what Dwyer C.J. said in Grondal v The Minister of State for Labour and National Service (unreported, 11th September 1953) in the Supreme Court of Western Australia: "I have asked counsel", said his Honour, "what is to be understood by the phrase "a conscientious belief" without getting much enlightenment. I suppose the difficulty is if one starts to define such terms one only uses other words which in their turn require an abundance of further interpretation. I would say that a conscientious belief is an individual's inward conviction of what is morally right or morally wrong, and it is a conviction that is genuinely reached and held after some process of thinking about the subject. It represents a conclusion that is uninfluenced by any consideration of personal advantage or disadvantage either to oneself or others, and perhaps when put to the test should be ordinarily combined with a willingness to act according to the particular conviction reached although this may involve personal discomfort or suffering or material loss".

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Judgment (50 paragraphs)

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