61CPart not to apply to certain persons

61C  Part not to apply to certain persons   Nothing in this Part applies to:  (a) a person whose presence in Australia is occasioned solely by his or her employment in the service of a government outside Australia; or  (b) a prescribed official of any international organisation; or  (c) a member of the Defence Force. Division 2—Determination of conscientious belief 61CA  Application for determination of conscientious belief  (1) A person who claims to be exempt from service because of conscientious beliefs must, within 7 days after he or she is called on for service under section 60 apply to the Secretary, in writing, to have his or her claim determined by a Conscientious Objection Tribunal.  (2) At any time after a Tribunal has made a determination that a person is or is not exempt from service because of conscientious beliefs either the applicant for that determination or the Commonwealth may apply to the Secretary, in writing, to have a Tribunal set aside the previous determination and, where appropriate, make a new determination in substitution for it on the grounds of a change in circumstances. 61CB  Secretary must refer application   If the Secretary receives an application under subsection 61CA(1) or (2), the Secretary must refer the application to a Conscientious Objection Tribunal for determination. 61CC  Function of Conscientious Objection Tribunals  (1) The function of a Conscientious Objection Tribunal is to determine, following an application that is referred to it by the Secretary, whether the person to whom the application related is exempt from service because of conscientious beliefs.  (2) Subject to this Part, a determination under subsection (1) is final and binding for all purposes. 61CD  Parties to the hearing of an application   In this Part, the parties to the hearing of an application by a Conscientious Objection Tribunal are the applicant and the Commonwealth. 61CE  Notice of determination to be given to parties  (1) If a Conscientious Objection Tribunal makes a determination it must notify the parties of the result of the determination as soon as possible.  (2) A Tribunal must give the parties a statement in writing of the reasons for its determination within 28 days of making that determination. Division 3—Establishment and membership of Conscientious Objection Tribunals 61CF  Establishment of Conscientious Objection Tribunals  (1) The Minister may, by notice in the Gazette, establish such Conscientious Objection Tribunals as he or she thinks necessary for the purposes of this Part.  (2) Each Tribunal is to comprise:  (a) a presiding member; and  (b) 2 other members.  (3) Members are to be appointed in writing by the Minister and may be appointed as either full‑time or part‑time members.  (4) A person is not to be appointed as a presiding member of a Tribunal unless he or she is a legal practitioner of not less than 7 years standing.  (5) A person is not to be appointed as another member of a Tribunal unless the Minister is satisfied that he or she is capable, by reason of training or experience, of ascertaining facts other than by adversarial procedures. 61CG  Period of appointment of members   Members are to hold office for such period, not exceeding 5 years, as is specified in the instrument of appointment. 61CH  Remuneration and allowances of members  (1) Members are to be paid:  (a) such remuneration as is determined by the Remuneration Tribunal; and  (b) such allowances as are prescribed.  (2) If no determination of the remuneration of members by the Remuneration Tribunal is in operation, members are to be paid such remuneration as is prescribed. 61CJ  Other terms and conditions   A member holds office on such terms and conditions (if any) in respect of matters not provided for by this Part as are determined by the Minister in writing. 61CK  Leave of absence   The Minister may grant leave of absence to a member on such terms and conditions as to remuneration or otherwise as the Minister determines in writing. 61CL  Resignation   A member may resign in writing signed by him or her and sent to the Minister. 61CM  Removal from office   The Minister may remove a member from office for proved misbehaviour or physical or mental incapacity. 61CN  Member of a Tribunal unavailable to complete proceeding  (1) If the hearing of an application has been commenced or completed by a Conscientious Objection Tribunal but, before the proceeding has been determined, one of the members constituting the Tribunal for the purposes of the application has:  (a) ceased to be a member; or  (b) ceased to be available for the purposes of the application; the following provisions have effect:  (c) if the member concerned is a member other than a member appointed as a presiding member—the hearing and determination, or the determination, of the application may be completed by the Tribunal constituted by the remaining 2 members;  (d) in any other case—the proceeding must be reheard by another Tribunal.  (2) If an application that was being dealt with by one Tribunal is reheard by another Tribunal, that other Tribunal may, for the purposes of that application, have regard to any record of the proceedings before the first‑mentioned Tribunal.  (3) The reference in subsection (2) to a record of proceedings includes a reference to a record of any evidence taken in the proceeding. 61CO  Acting appointments  (1) The Minister may appoint a person to act as a full‑time member of a Conscientious Objection Tribunal during any period, or during all periods, when the member is absent from duty or from Australia or is, for any reason, unable to perform the duties of the member’s office.  (2) The Minister may appoint a person to act as a part‑time member of a Tribunal during any period, or during all periods, when the member is, for any reason, unable to perform the duties of the member’s office.  (3) Where a person has been appointed under subsection (1) or (2), the Minister may direct that the person is to continue to act in the appointment after the normal terminating event occurs.  (4) A direction under subsection (3) must specify the period during which the person may continue to act in the appointment.  (5) The period specified under subsection (4) may be specified by reference to the happening of a particular event or the existence of particular circumstances.  (6) A direction under subsection (3):  (a) is to be given only if there is a pending determination or other special circumstances justifying the giving of the direction; and  (b) may only be given before the normal terminating event occurs.  (7) A person continuing to act under a direction under subsection (3) must not continue to act for more than 12 months after the normal terminating event occurs.  (8) If a Tribunal includes a person acting or purporting to act under an appointment under this section, any decision of, or any direction given or any other act done by, the Tribunal is not invalid merely because:  (a) the occasion for the appointment had not arisen; or  (b) there was a defect or irregularity in connection with the appointment; or  (c) the appointment had ceased to have effect; or  (d) the occasion to act had not arisen or had ceased.  (10) For the purposes of this section, the normal terminating event for an appointment under subsection (1) or (2) is:  (a) if the appointment is made under subsection (1)—the member ceasing to be absent or ceasing to be unable to perform the duties of the member’s office; or  (b) if the appointment is made under subsection (2)—the member ceasing to be unable to perform the duties of the member’s office. Division 4—Procedures of Conscientious Objection Tribunals 61CP  Tribunals’ way of operating   A Conscientious Objection Tribunal, in carrying out its functions under this Part:  (a) must provide procedures which are informal, quick, fair, just and economical; and  (b) must act according to substantial justice and the merits of the case; and  (c) is not bound by technicalities, legal forms or rules of evidence. 61CQ  Powers of Tribunals   For the purposes of making a determination, a Conscientious Objection Tribunal may:  (a) take evidence on oath or affirmation; and  (b) summon a person to appear before it to give evidence; and  (c) summon a person to produce to it such documents as are referred to in the summons; and  (d) require a person appearing before it to give evidence either to take an oath or to make an affirmation that the evidence that the person will give will be true. 61CR  Procedure of Tribunals  (1) The presiding member of a Conscientious Objection Tribunal may convene such hearings of the Tribunal as he or she thinks necessary for the performance of its functions.  (2) The presiding member is to preside at all hearings of the Tribunal.  (3) A Tribunal must keep records of its hearings. 61CS  Majority decision   A question before a Conscientious Objection Tribunal on an application for a determination is to be decided according to the opinion of a majority of the members of the Tribunal. 61CT  Procedure where opinion of members equally divided   If:  (a) an application is referred to a Conscientious Objection Tribunal for a determination; and  (b) section 61CS does not apply to a question before the Tribunal on the application; the question is to be decided according to the opinion of the member presiding. 61CU  Hearings  (1) Subject to this section, a Conscientious Objection Tribunal is to take oral evidence in public.  (2) If a Tribunal is satisfied that it is necessary, in the interests of determining a matter which is before it, the Tribunal may direct that oral evidence is to be taken in private.  (3) If a Tribunal makes a direction under subsection (2), it may give directions as to the persons who may be present when the oral evidence is given.  (4) If a Tribunal is satisfied that it would be difficult for a person to give oral evidence, the Tribunal may accept a written statement from that person.  (5) An applicant may be assisted in presenting his or her case by another person, whether or not that person is a legal practitioner. 61CV  Onus of proof  (1) In proceedings before a Conscientious Objection Tribunal the onus of proving exemption from service because of conscientious belief rests with an applicant.  (2) Such onus is to be discharged on the balance of probabilities. 61CW  Protection of members and persons giving evidence etc.  (1) A member of a Conscientious Objection Tribunal has, in the performance of his or her duties as a member, the same protection and immunity as a Judge of the Federal Court.  (2) Subject to this Part, an applicant, a person summoned to attend, or appearing, before a Conscientious Objection Tribunal to give evidence, a person representing the Commonwealth or a person who assists an applicant at a hearing, has the same protection and is, in addition to the penalties provided by this Part, subject to the same liabilities, as a witness in proceedings in the Federal Court. 61CX  Fees for persons giving evidence  (1) A person, other than the applicant, summoned to appear before a Conscientious Objection Tribunal to give evidence is entitled to be paid, in respect of his or her attendance, fees, and allowances for expenses, ascertained in accordance with a determination under subsection (2).  (2) The Minister may, by legislative instrument, determine the amounts of fees and allowances to be paid under subsection (1).  (4) The fees and allowances referred to in subsection (1) are to be paid by the Commonwealth. 61CY  Failure of witness to attend  (a) the person is served under paragraph 61CQ(b) with a summons to appear before a Conscientious Objection Tribunal to give evidence and is tendered reasonable expenses; and  (i) fails to attend as required by the summons; or  (ii) fails to appear and report from day to day and has not been excused, or released from further attendance, by a member.  (2) Subsection (1) does not apply if the person has a reasonable excuse. Note: The defendant bears an evidential burden in relation to the matter in subsection (2). See subsection 13.3(3) of the Criminal Code.  (3) In paragraph (1)(a), strict liability applies to the physical element of circumstance, that the summons is under paragraph 61CQ(b). 61CZ  Refusal to be sworn or to answer questions etc.  (1) A person commits an offence if the person:  (a) is required to produce a document by a summons under paragraph 61CQ(c) served on the person; and  (b) refuses or fails to do so.  (2) In paragraph (1)(a), strict liability applies to the physical element of circumstance, that the summons is under paragraph 61CQ(c).  (3) A person commits an offence if the person:  (b) is required under paragraph 61CQ(d) either to take an oath or to make an affirmation; and  (c) refuses or fails to comply with the requirement.  (4) In paragraph (3)(b), strict liability applies to the physical element of circumstance, that the requirement is under paragraph 61CQ(d).  (5) A person commits an offence if the person:  (b) is required to answer a question by the presiding member; and  (c) refuses or fails to answer the question.  (6) Subsections (1), (3) and (5) do not apply if the person has a reasonable excuse. Note: The defendant bears an evidential burden in relation to the matter in subsection (6). See subsection 13.3(3) of the Criminal Code.  (7) A person commits an offence if the person:  (b) gives evidence that is false or misleading in a material particular; and  (c) knows that the evidence is false or misleading in the material particular. 61CZA  Contempt of Tribunal   A person must not:  (a) obstruct or hinder a Conscientious Objection Tribunal, or a member of such a tribunal, in the performance of the functions of the Tribunal; or  (b) disrupt the taking of evidence by a Conscientious Objection Tribunal. Penalty: Imprisonment for 12 months. Division 5—Reviews and appeals 61CZB  Review of determinations of Conscientious Objection Tribunals   A party to a determination by a Conscientious Objection Tribunal may apply to the ART for review of that determination. 61CZC  ART Act to apply subject to modification  (1) The ART Act applies in relation to the review of a determination of a Conscientious Objection Tribunal subject to the modifications set out in this section.  (2) Despite section 22 of the ART Act, the parties to a proceeding before the ART for a review of a determination of a Conscientious Objection Tribunal are:  (a) the person in relation to whom the determination was made; and  (b) the Commonwealth.  (3) Paragraph 22(1)(c), section 59 and sections 172 to 178 of the ART Act do not apply in relation to such a review.  (4) Division 6 of Part 7 of the ART Act applies in relation to such a review in the circumstances specified in paragraph 186(b) of that Act, but not in the circumstances specified in paragraph 186(a) of that Act. 61CZD  Appeals from ART  (1) A party to a proceeding before the ART may appeal to the Federal Court, on a question of law only, from any decision of the ART in that proceeding.  (2) An appeal by a person under subsection (1) must be instituted:  (a) within 28 days after the day on which the document setting out the terms of the decision of the ART is given to the person or within such further time (whether before or after the end of that period) as the Federal Court allows; and  (b) in such manner as is prescribed by rules of court made under the Federal Court of Australia Act 1976.  (3) The Federal Court has jurisdiction to hear and determine appeals instituted in the Court in accordance with subsection (2).  (4) The Federal Court:  (a) must hear and determine the appeal; and  (b) may affirm, vary or set aside the order of the ART; and  (c) may give such judgment, or make such order, as in all the circumstances it thinks fit, or refuse to make an order; and  (d) may remit the case for rehearing and determination, either with or without the hearing of further evidence, by the ART. 61CZE  Operation etc. of decision subject to appeal  (1) Subject to this section, the institution of an appeal to the Federal Court from a decision of the ART does not:  (a) affect the operation of the decision; or  (b) prevent the taking of action to implement the decision; or  (c) prevent the taking of action in reliance on the making of the decision.  (2) If an appeal is instituted in the Federal Court from a decision of the ART, the Federal Court or a Judge of the Federal Court may make such orders of the kind referred to in subsection (3) as that Court or Judge considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the appeal.  (3) The orders that may be made under subsection (2) are orders staying, or otherwise affecting the operation or implementation of, either or both of the following:  (a) the decision of the ART or a part of that decision;  (b) the decision to which the proceeding before the ART related or a part of that decision.  (4) The Federal Court or a Judge of that Court may, by order, vary or revoke an order in force under subsection (2) (including an order that has previously been varied under this subsection).  (5) An order in force under subsection (2):  (a) is subject to such conditions as are specified in the order; and  (b) has effect until:  (i) where a period for the operation of the order is specified in the order—the end of that period or, if a decision is given on the appeal before the end of that period, the giving of the decision; or  (ii) where no period is so specified—the giving of a decision on the appeal. Part V—Australian Defence Force Cadets