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R v District Court; Ex parte White [1966] HCA 69; (1966) 116 CLR 644 (9 November 1966)

CATCHWORDS

Prerogative Writs - Prohibition and certiorari - Alleged excess of jurisdiction and error of law, on face of the record of proceedings - Circumstances in &which writs available.

HEARING

DECISION

2. The ground of the applications to this Court is that the District Court exceeded its jurisdiction in confirming the order of the magistrate and that an error of law appears on the face of the record of the District Court. The claim that an error of law so appears raises the same question as is raised by the claim that the Court exceeded its jurisdiction. The reason submitted in support of these grounds is that, there having been before the Court of summary jurisdiction an application for an order that the applicant was exempt under s. 29A (1.) from liability to render any service under the Act, the District Court's jurisdiction to make an order confirming the order of the magistrate was conditioned by the terms of ss. 29B (2.) and 29C (4.) either upon the fact that the applicant was not in truth an exempt person, or alternatively upon a finding by the District Court itself that the applicant was not such a person. It was submitted that the District Court had not so found but on the contrary had expressed a view of the facts of the case upon which the only conclusion to be drawn was that in its view the applicant was an exempt person. (at p648)

3. The submission that the fact, as distinct from the District Court's finding as to it, that the applicant was an exempt person was the necessary foundation of the jurisdiction of the District Court to make the order it made, involved the submission that it was open to this Court to determine that fact. No evidence was placed before this Court in this connexion but it was said that perusal of the transcript of the evidence given before the District Court which was exhibited to an affidavit filed in support of the present application and of that Court's reasons for judgment ought to lead this Court to the conclusion that in fact the applicant is an exempt person within s. 29A (1.). (at p648)

4. The matter has been very fully canvassed by the applicant's counsel whose submissions I have fully considered. There is a serious question as to this Court's jurisdiction in the circumstances to grant certiorari and also a serious question as to whether the Court ought in this case to grant prohibition. But it is unnecessary, having regard to the clear opinion I have formed upon the applicant's submissions, to resolve these difficulties. For, in my opinion, the application fails in limine, as, in my opinion, no excess of jurisdiction by the District Court in making the order in question is shown, nor is there any relevant error of law seen upon the record. (at p648)

5. Having regard to some matters which were adverted to in argument, including particularly the terms in which the District Court judge expressed his reason for making the order dismissing the applicant's appeal, it is appropriate that I should point out that this Court is not able to review the findings or comment upon the reasons of the District Court. The Court's sole function is to determine whether or not the District Court exceeded the power or authority given to it by the Act, and whether or not any error of law vitiating its decision appears upon the face of the record of the proceedings of that Court, which, for the purposes of this judgment, I am prepared to assume, includes the transcript of the reasons given by the District Court for the judgment it pronounced. If there is no excess of jurisdiction and no such error of law, the decision of the District Court is made final and conclusive by s. 29C (7.) of the Act. (at p649)

6. Although the parties before the District Court seemed to have treated the appeal as one from the magistrate's order that the applicant was a person to whom s. 29A (2.) applied, the appeal was in reality, in my opinion, an appeal against the refusal of the magistrate to grant the application and to make an order that the applicant was exempt from all service under the Act. (at p649)

7. The contest before the District Court was as to whether the applicant's conscientious beliefs prevent him from engaging in any military service either combatant or non-combatant. However, the application to this Court is cast in the form of an attack upon the jurisdiction of the District Court to make the order which it did make, namely, that the applicant was a person to whom s. 29A (2.) applies. (at p649)

8. The jurisdiction of the court of review to affirm the order of the magistrate made pursuant to s. 29B (2.) is subject to the same limitations, if any, in relevant respects as that of the magistrate. Consequently, it is convenient to examine whether the jurisdiction of the magistrate to make an order under s. 29B (2.) depends either upon the fact that the applicant is in truth exempt from all service by reason of s. 29A (1.) or upon finding by the magistrate to that effect. (at p649)

9. If a registered person holds the conscientious beliefs which s. 29A (1.) describes he may apply for an order, which if made will follow Form 10 in the Schedule to the National Service Regulations : see reg. 34. If not holding those conscientious beliefs which would prevent him engaging in military duties of a combatant nature, such person may apply for an order that he is a person to whom s. 29A (2.) applies, which order if made would be in accordance with Form 11 in the said Schedule. But it would seem unlikely that such a person could apply in the one application for both of these orders, or even for them in the alternative, having regard to the extent of the respective beliefs which are required to found them. (at p649)

10. Accordingly, provision is made in s. 29B (2.) for an order to be made upon the hearing of an application for an order that the applicant is an exempt person that, though he is not exempt, he may not, because of his conscientious beliefs, be required to engage in combatant duties. Of course, in the nature of things, an order could scarce be made in that form if the tribunal was prepared to hold that the applicant was exempted by s. 29A (1.) from all service. Therefore, a determination that he is not so exempt is a logically necessary prelude to a determination that he may be required to render non-combatant service. But, it seems to me, a misuse of language to say that the jurisdiction of the tribunal, otherwise properly seised of the application to make the order contemplated by s. 29B (2.) is conditioned upon the fact of exemption or upon a finding as to that fact. (at p650)

11. It is quite clear that the magistrate's authority to make such an order does not depend upon the fact that in truth the applicant is exempt from all service for the sub-section in any case speaks only of the magistrate's satisfaction of that matter. In my opinion, there can be no doubt that this Court cannot be called upon to examine that question upon evidence placed before it. (at p650)

12. As to the other suggested prerequisite of jurisdiction, the tribunal, by virtue of the application and ss. 29B or 29C as the case may be, has jurisdiction to grant the application, to refuse it, or to make an order under s. 29B (2.). To make the latter order is to refuse the application as made. There is no need, in my opinion, for any express statement by the tribunal making an order under s. 29B (2.) that it finds the applicant not to be a person who by reason of s. 29A (1.) is exempt from all service under the Act. It is enough that being unwilling upon the evidence to grant the application the tribunal makes the order in the prescribed form appropriate to a decision that the applicant is a person to whom s. 29A (2.) applies. However, upon a fair reading of the reasons for judgment expressed, though perhaps not with any marked lucidity, by the District Court judge, he did hold that the applicant was not a person exempt by reason of s. 29A (1.) from liability to render any service. Contrary to the applicant's submission, I do not find anything in the judge's reasons for judgment which is inconsistent with that finding nor do I perceive anything in what the District Court judge said in his reasons for judgment which ought to have led to the conclusion that the applicant was such an exempt person. (at p650)

13. Accordingly, without entering upon the question of the Court's jurisdiction to grant the writ of certiorari sought by the appellant, or the question whether in the circumstances the granting of a writ of prohibition would be appropriate, I am of opinion that the District Court did not exceed its jurisdiction in making the order of which the applicant complains and that there is no error of law affecting the validity of that order appearing upon the record of the proceedings in the District Court, assuming without deciding that the transcript of the oral reason given by the District Court for making the order are part of that record. (at p651)

14. In my opinion, the applications should be dismissed. (at p651)

McTIERNAN J. I agree with the reasons and conclusion of the Chief Justice and do not wish to add anything. (at p651)

TAYLOR J. In these proceedings the applicant applies for the issue of a writ of prohibition directed to the District Court of the Metropolitan District, the presiding judge, the Minister of State for Labour and National Service and the Commonwealth of Australia prohibiting them and each of them from proceeding further upon an order of the District Court dismissing an appeal by the applicant and confirming the order of a magistrate that the applicatn "holds a conscientious belief that does not allow him to undertake duties of a combatant nature but allows him to undertake military duties of a non-combatant nature and (that) he is, by virtue of the provisions of s. 29A of the National Service Act, liable only to undertake such duties of a non-combatant nature". Further, he applies for a writ of certiorari to remove the record of the proceedings in the District Court to this Court to be quashed. (at p651)

2. It is contended on behalf of the applicant that the order of the District Court dismissing his appeal and confirming the magistrate's order was made without jurisdiction. Primarily this contention rests upon the proposition that the jurisdiction of the District Court, and presumably that of the Court of Petty Sessions, to make a declaratory order in the terms already set out extends only to cases where the applicant is not, in fact, an exempt person ; in other words, it is asserted, the jurisdiction of the Court depends upon the existence of this fact and that its finding cannot be regarded as conclusive. It is therefore contended that this Court is not only at liberty, but bound, to re-examine the facts and reach its own conclusion on the relevant question. This contention is, however, clearly erroneous. The relevant question of fact is, subject to an appeal to a court of review - in this case the District Court - expressly committed to the determination of the Court of Petty Sessions and, upon appeal, to the court of review whose decision is declared by the Act to be final and conclusive. There is, therefore, no basis for the applicant's contention and it should be made clear that it is not open to this Court to treat the proceedings as being in the nature of an appeal or upon any other basis to review the findings made on this issue of fact and that the only possible ground upon which the applicant could be entitled to relief in this Court is if it could be shown that the order was made without jurisdiction or that an error of law appeared on the face of the record. (at p652)

3. The other matters argued on behalf of the applicant, I agree, failed to establish that the Court acted without jurisdiction or that there was any relevant error of law and, this being so, it is unnecessary to determine whether the applications made to this Court were competent. (at p652)

MENZIES J. The applicant has, in accordance with the direction of the Chief Justice under O.55, r. 2, of the High Court Rules, made two applications to this Court by separate notices of motion. The first is for the issue of a writ of prohibition directed to the District Court of the Metropolitan District, his Honour Judge Alistair Cameron Smith, the Minister of State for Labour and National Service, and the Commonwealth of Australia. Prohibition is sought against them, and each of them, from proceeding further upon an order of the District Court of the Metropolitan District dismissing an appeal by the applicant and confirming the order of a magistrate that the applicant holds a conscientious belief that does not allow him to undertake duties of a combatant nature but allows him to undertake military duties of a non-combatant nature and he is, by virtue of the provisions of s. 29A of the National Service Act (Cth), liable only to undertake such duties of a non-combatant nature. The second application is for a writ of certiorari directing the District Court of the Metropolitan District to send to this Court its proceedings in the applicant's appeal to it as aforesaid in which the substance of his claim was that he is a person exempt from liability to render service under the Act on the ground that his conscientious beliefs do not allow him to engage in any form of military service. (at p652)

2. I will assume, without deciding, that this Court has jurisdiction to grant the writs sought. I do so not because I am satisfied of this but because I am satisfied that, upon the merits, the applications ought to be refused. When I speak of the merits, I am not, of course, referring to the correctness of the decision of the District Court upon the evidence before it ; about that this Court can say nothing. I am referring rather to the existence of grounds upon which a court having jurisdiction could grant the prerogative writs sought, or one of them - viz. that the order of the District Court was made without jurisdiction or that an error of law appears upon the face of the ascertained record of that Court. What I take to be a separate and further contention - viz. that although the Court found, as it had jurisdiction to do, that the applicant's beliefs do not allow him to engage in military duties of a combatant nature but allow him to engage in such duties of a non-combatant nature, that finding lacked any sound basis - is, in the absence of an error of law upon the face of the record, not a matter which, in the circumstances, could afford any ground for the grant of either prohibition or certiorari. Upon a question having arisen whether the applicant was exempt from liability to render service by reason of conscientious beliefs not allowing him to engage in any form of military service, a stipendiary magistrate found that the applicant holds "a conscientious belief that does not allow him to undertake duties of a combatant nature but allows him to undertake military duties of a non-combatant nature and he is, by virtue of the provisions of s. 29A of the Act, liable only to undertake such duties of a non-combatant nature". Upon appeal, the National Service Act, s. 29C (4.), therefore applied. This provides:-

"The court of review in which an appeal under this section
is instituted -

(a) shall hear and determine the appeal ; and
(b) may affirm, vary or reverse the decision of the court of
summary jurisdiction."

"Where a person claims to be exempt, by virtue of
subsection
(1.) of section twenty-nine A of this Act, from liability
to render service under this Act or to be a person to whom
sub-section (2.) of that section applies, the burden of proving
the claim rests on that person."

3. The attack upon the jurisdiction of the Court asserted that its jurisdiction to make or affirm a decision made under s. 29B (2.) depends upon a collateral and challengeable finding that the applicant is not a person "whose conscientious beliefs do not allow him to engage in any form of military service", but that finding is an integral part of the decision of the magistrate or District Court dealing with the matter. It is not to be regarded as a jurisdictional fact upon which this Court is bound to come to its own conclusion as something separate and distinct from the decision committed by the legislation to the lower court. The applicant here, having invoked the jurisdiction of the District Court and having failed in his appeal, has also failed to satisfy me that, in determining the appeal as it did - viz. by dismissing the appeal and affirming the decision appealed against - the District Court exceeded its jurisdiction. (at p654)

4. What is relied upon as an error of law upon the face of the record is, I think, no more than a criticism of the process whereby the Court reached a conclusion of fact committed to it for decision. It appears to me that the Court did correctly state the question to be decided, viz. "whether he" (i.e. the applicant) "genuinely believes what he says he does and whether his claim" (i.e. "I hold a conscientious belief that does not allow me to engage in any form of military service") "is bona fide". The finding expressed in an unreserved judgment was a finding that "his beliefs are not such as would warrant him from not serving in a non-combatant nature". The decision of the magistrate was affirmed and this order throws light upon what the learned judge meant by the passage from his judgment that I have just quoted. Even if the reasoning whereby the Court reached its conclusion of fact were demonstrably unsound, this would not amount to an error of law on the face of the record. To establish some faulty (e.g. illogical) inference of fact would not disclose an error of law. Reliance was very naturally placed by counsel for the applicant upon the learned judge's observations that the applicant had formed certain conclusions "without any proper basis either of learning or of logic, or with regard to what is going on in the world today". These observations, taken by themselves, could indicate that a wrong legal standard was being applied, for to deny an exemption to a person conscientiously holding a belief because the belief was thought to be unsound would be an error of law. However, in a judgment which shows that the matter for decision was understood to be "whether he genuinely believes what he says he does and whether his claim is bona fide", it would, I think be a mistake to regard the later remarks as constituting the adoption of a mistaken criterion. (at p654)

5. Because the District Court had jurisdiction to decide what it did and because there is no error of law appearing in the judgment of that Court, I think this application ought to be refused. (at p654)

WINDEYER J. We do not sit in this Court to weigh the evidence and decide whether or not the applicant should be exempt from military service. That question has been committed by Parliament to a magistrate, with an appeal to a court of review constituted by a District Court or Supreme Court judge. The court of review has given its decision. Parliament has said that its decision is "final and conclusive". It is not for us to say whether it was right or wrong. Nevertheless the applicant seeks to bring the case before us, alleging an error of law which it is claimed entitles him to an order either for certiorari or prohibition. Counsel for the applicant was well aware of the obstacles before him ; and we heard a well-informed argument by which he sought to surmount them. (at p655)

2. 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 (1952) 1 KB 338, at p 357 , "It is plain that certiotari 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. (at p656)

3. Counsel for the applicant put his application for prohibition on several grounds. The most precise was that the order of the District Court judge - which he expressed as "I confirm the order made by the magistrate that he serve in a non-combatant unit" - was made without jurisdiction. Such an order could only be made if the judge were affirmatively satisfied that the applicant was not a person whose conscientious beliefs did not allow him to engage in any form of military service, but was a person whose conscientious beliefs did not allow him to engage in military duties of a combatant nature but did allow him to engage in military duties of a non-combatant nature. It was put that there was in this a preliminary or collateral matter which must be established as an essential to jurisdiction, and that it was not established. The general principle which underlies the proposition is illustrated by such cases as Estate and Trust Agencies Ltd. v. Singapore Improvement Trust (1937) AC 898 ; R. v. Connell ; Ex parte Hetton Bellbird Collieries Ltd. [1944] HCA 42; (1944) 69 CLR 407, at pp 431, 432 ; R. v. Australian Stevedoring Industry Board ; Ex parte Melbourne Stevedoring Co. Pty. Ltd. [1953] HCA 22; (1953) 88 CLR 100, at pp 117, 118 . But, although the principle is not doubtful, it seems to me that it really has no application to the facts of this case. The relevant provisions of the National Service Act 1951-1965 are as follows :

"s. 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.
(2.) 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.
s. 29B (2.) Where a question arises whether a person is,
by virtue of sub-section (1.) of the last preceding section,
exempt from liability to render service under this Act, the
court by which the question is heard may, if it is satisfied
that the person is not so exempt but that the person is a
person to whom sub-section (2.) of that section applies, decide
accordingly."

"s. 29D. Where a person claims to be exempt, by virtue
of sub-section (1.) of section twenty-nine A of this Act, from
liability to render service under this Act or to be a person to
whom sub-section (2.) of that section applies, the burden of
proving the claim rests on that person."

4. However, it seems to me that the order made, that the applicant undertake non-combatant duties, involves and presupposes a finding that he was not a person as described in s. 29A (1.). I do not think that this finding had to be first separately and independently stated as a condition of jurisdiction. It is implicit in and necessarily part of a finding that he is a person as described in s. 29A (2.). In my opinion this ground on which prohibition or certiorari was sought fails. (at p657)

5. The other matters relied upon were said to emerge from the reasons that his Honour, the District Court judge, gave for confirming the order of the magistrate. It was said that he took irrelevant and inadmissible considerations into account, that he misapprehended the issue which he had to try and that there were fallacies in his reasoning. It was said that these alleged defects amounted to errors of law, and that they were apparent on the face of the record. The remarks relied upon were made orally by the judge before he pronounced his formal order. They were taken down in shorthand and transcribed, and a copy was apparently filed. I shall assume that this document, so far as it states his Honour's conclusion on the issue he had to determine and his reasons for his conclusion, can be treated as part of a record; and that on an application for certiorari it may be examined for error of law. In a case of this kind, involving questions of individual conscience and personal liberty, it is important that no fundamental error of law should be beyond redress. I therefore make the assumption that I do as to the judge's reasons being, in this case, matter of record. But I do so without coming to a final conclusion as to what documents are properly described as examinable records when certiorari is sought. That question was considered in R. v. Northumberland Compensation Appeal Tribunal ; Ex parte Shaw (1951) 1 KB 711 ; (1952) 1 KB 338 ; and by Lord Denning in Baldwin & Francis Ltd. v. Patents Appeal Tribunal (1959) AC 663, at pp 687-690 . Some aspects of it are still debatable ; see the articles by Mr Megarry and Mr. D. M. Gordon in the Law Quarterly Review, vol. 77, pp. 157-161 and 322-326. (at p658)

6. The main issue for his Honour was whether the applicant was a person whose conscientious beliefs did not allow him to engage in any form of military service (s. 29A (1.)). A conscientious belief means here (by s. 29A (5.)) "a conscientious belief whether the ground of the belief is or is not of a religious character and whether the belief is or is not part of the doctrines of a religion". (at p658)

7. The National Service Regulations, made under the authority of the Act, deal with the matter under a heading "Conscientious Objectors". But that phrase does not appear in the Act ; and I think it never has been used in Australian statute in law in connexion with military service. It has, however, been in fairly common use as a descriptive term since the First World War. It appeared on the statute book of the United Kingdom when the Military Service Act 1916 (U.K.) permitted exemptions from conscription "on the ground of a conscientious objection to the undertaking of combatant service" (s. 2 (1) (d)). Lewis J. was probably thinking of this when in Downsborough v. Huddersfield Industrial Society (1942) 1 KB 306, at p 316 , he said that the expression "conscientious objector" was in general use before the passing of the National Service (Armed Forces) Act 1939 (U.K.) to describe persons who held certain views. The first place in which I have seen a reference to "conscientious objections" is not in connexion with military matters. It is the Act 1 & 2 Vict. c. 77 (1838), permitting an affirmation instead of an oath to be made by persons who had been Quakers and Moravians, but had ceased to belong to either of such denominations, "still continuing nevertheless to entertain conscientious objections to the taking of an oath". (at p658)

8. It may be that a conscientious objection to performing military service, as in the British National Service Act 1948, and a conscientious belief which does not allow a man to engage in military service, as in our National Service Act 1951-1965, are philosophically indistinguishable concepts, or that the distinction is too refined to be for legal purposes significant. Either expression would describe the first recorded conscientious objector, the young African Christian who, according to Gibbon (Decline and Fall, Ch. 16), was in the fourth century put to death because he "obstinately persisted in declaring that his conscience would not permit him to embrace the profession of a solider". Nevertheless it is, I think, important that cases of this kind arising to-day under the present Australian statute be considered by reference to its language, regardless of other language expressing similar ideas which earlier or elsewhere prevailed in the same field. This is because both in the United Kingdom and in Australia the grounds on which Parliament has exempted conscientious objectors from statutory obligations of military service have, in the course of time, become progressively ampler and more liberal. Broadly speaking, the movement has been from exemptions allowed only to the adherents of particular religious persuasions, and then only from combatant duties, to exemptions on "conscientious" grounds, extending in some cases to relief from all forms of military service. (at p659)

9. I shall briefly show this course of development. (at p659)

10. 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 [1912] HCA 65; (1912) 15 CLR 366 . 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". (at p660)

11. 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". (at p661)

12. The Act speaks of conscientious beliefs which do not allow a man to engage in military service. Military service here means service in the Forces and subject to the discipline of the Forces. Section 29A (1.) refers to a belief which forbids "any form of military service". This I assume 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. I do not read s. 29A (1.) as referable to an objection to participation only in a particular war or in operations against a particular enemy. I mention this because the stringency of the conditions for exemption under Australian law is not always appreciated. Elsewhere and under other Acts claims for exemption have been upheld in the past because of a conscientious objection to participation only in a war then in progress. This was so in the United Kingdom during the war of 1939-1945, as Mr. Fenner Brockway, a veteran of the cause of conscientious objectors, has acknowledged in his foreword to Hayes' Challenge of Conscience which deals with that period. Speaking of the Appellate Tribunals which dealt with conscientious objectors he wrote : "The test was not the ground of objection but the depth of the objection. If an applicant convinced them that he held his convictions so rootedly that they represented to him an issue of right or wrong in his own conduct they exempted him, despite the fact that in another war he might take up arms." But although as I read them the words of our Act are absolute and unlimited in time, that does not, I think, mean that, in assessing whether a man's beliefs concerning military service entitle him to exemption, his opinions concerning events in the world at the time the question arises are altogether irrelevant. (at p661)

13. A tribunal which has to decide whether or not a man has established that he is exempt from military service by reason of his conscientious beliefs must consider not only the content of the belief asserted, but whether it is sincere, and if sincere, its steadfastness and how far it is for him compelling. These considerations, although they can be separately stated, bear one upon the other and contribute together to the answer to the question. With these matters in mind I have read what the learned judge said. I have considered in particular the passages which it was contended exhibit error in law. (at p662)

14. It was said that his Honour, after referring to the opinions and views which the applicant had expressed, posed a correct question for himself, namely whether the applicant "genuinely believes what he says he does and whether his claim is bona fide" - but that nevertheless he went astray in the ultimate conclusion, which he expressed as follows : "The appellant by and large has presented himself to my way of thinking as a person who has come to these conclusions in a short space of time and who has formed the conclusions as I have stated, without any proper basis either of learning or logic, or with regard to what is going on in the world to-day. I have had regard to the totality of the evidence which has been given on his behalf as well as, of course, to the evidence which he has given himself ; and the conclusion I come to is that his beliefs are not such as would warrant him not serving in a non-combatant nature. I dismiss the appeal and confirm the order made by the magistrate that he serve in a non-combatant unit." (at p662)

15. Had his Honour not thought he should give his decision orally and immediately he would, I imagine, have used words not susceptible of misunderstanding. On a first reading the sentences I have quoted can, I agree, suggest that his Honour had assumed that a conscientious belief, such as the statute requires, must be one founded upon learning, logic and a view of current world affairs. But I do not think that his Honour meant that. He was speaking ex tempore and in reference to the evidence which had been given. He was speaking to those who had heard that evidence. He was, as he had said, dealing with the case of a man who said he had long had an abhorrence of all forms of cruelty and had more recently arrived at a conscientious belief incompatible with military service. This belief he had said had for him a dual origin - in his emotional response to cruelty and in an intellectual conclusion from the premise he had stated in his application for registration as a conscientious objector that "man's chief purpose is to live - therefore the taking of human life is wrong and unjustifiable". His aversion to military service was not the result of religious beliefs. It was apparently put forward as being, in part at all events, a conclusion from reasoning. He is an educated man. He had given evidence and been cross-examined. His Honour's reference to learning and logic and current affairs seems to have been made having the evidence of the applicant in mind. I do not read it as irrelevant to a consideration of the strength and genuineness of a belief said to have an intellectual as well as an emotional foundation. Therefore, while I appreciate that the language that his Honour used is open to some criticism I do not read his words as manifesting an error in law. (at p663)

16. The next criticism is of his Honour's remark that the applicant had "come to his conclusions in a short space of time", and his reference to National Service Regulation 35. This regulation requires that a court determining an application for exemption shall "have regard (in addition to all other relevant considerations) to" - inter alia - "the period during which the applicant claims to have held his conscientious belief and the circumstances in which he claims to have formed it". This regulation would in my view be invalid if it means that a man who has a conscientious belief which entitles him to exemption is not to be exempt if he has held that belief for only a short time. But to read it in that way is I think to misread it. I agree that what facts are of evidentiary value in a particular case is a matter for judicial determination, not for executive prescription. But the regulation can, I think, be read and should be read as merely bringing to notice matters which, in some cases at all events, can bear upon the question of the honesty of the belief asserted. No one would deny the possibility of a man's conscientious conversion to or adoption of new beliefs. His Honour's remark, read in its context, does not I think show an error of law. It does not mean that he thought that a belief which was conscientiously and honestly held could be disqualified as a ground of exemption because it had been held for only a short time. What I take his Honour to mean is that, as a factor in deciding whether the applicant in truth held beliefs which would entitle him to an exemption, he took into consideration among other things for how long he had professed to have had the beliefs which he asserted. I do not think that what his Honour said about this demonstrates that he made an error in law. (at p663)

17. I come finally to a matter which has caused me some difficulty. The applicant sought to have the magistrate's order that he was liable to perform non-combatant duties reversed on the ground that he was totally exempt under s. 29A (1.). He failed to establish this. At no stage did he claim to be a person to whom s. 29A (2.) applies. But his Honour confirmed the order of the magistrate that he was such a person. Of this he must have been positively satisfied in accordance with s. 29B (2.). As I have said above, an applicant only has the burden of proof of a claim which he makes, not of one which he does not make. And the two sub-sections of s. 29 (A) relate to different beliefs. The persons to whom sub-section (2.) applies are not persons holding less convinced beliefs of the same kind as those required for exemption by virtue of sub-section (1.). They are persons having beliefs of a somewhat different kind. As I read it, the Act does not say that a man who fails to establish a claim to be exempt from all service can at the discretion of the court which has tried that issue be made liable for non-combatant duties only. I can detect little in his Honour's reasons, as they are recorded, which justified such an order in the present case. It may be, however, that the necessary finding is implicit in the words which he finally used. And the applicant, if he is not to be exempted entirely, makes no complaint that his service is to be limited to non-combatant duties. That order should therefore stand. (at p664)

18. In conclusion I merely repeat that this Court cannot entertain an appeal from his Honour's decision on the facts of the case. No excess of jurisdiction or error in law appears. The motions for prohibition and for certiorari should therefore be dismissed. (at p664)

ORDER