I. INTRODUCTION
3.1 Australian governments have often stressed the importance in a democratic system of respect for individual conscience. In doing so they support a view which is common to all democratic societies. In United States v. Macintosh, for example, the Supreme Court of the United States said that “in the forum of conscience, duty to a moral power higher than the State has always been maintained.”’1 When the 1977 amendments to the Conciliation and Arbitration Act 1904 were introduced, the Hon. A.A. Street Minister for Employment and Industrial Relations, commenting on the new exemption from union membership provisions, stated:
The Government regards the protection of individual rights as fundamental and inalienable.2
Almost 25 years earlier, during the debate on similar amendments to the National Service Act 1951, the Hon. H.E. Holt, Minister for Labour and National Service and Minister for Immigration stated:
... although the measure does not affect a great many people as a British community we pride ourselves on the fact that we respect the conscientious beliefs of others.3
More recently, when requesting a reference on the National Service Amendment Bill 1983 (which would expand the exemption for a conscientious objector) for the Senate Standing Committee on Constitutional and Legal Affairs, Senator the Hon M.C. Tate, chairperson of the Standing Committee, stated that
... as legislators we ought to be reinforcing the individual conscience - an activity which culturally marks us as a free society where the common good cannot be relentlessly pursued by means which destroy the individuals personality.4
3.2 Legislation can be identified which, in accordance with these principles, imposes civic duties on citizens generally, or on a class of citizens, but recognises that some members of the community or of the class will hold conscientious beliefs which may make the performance of such duties repugnant. This legislation discussed below, generally provides that people who establish that they sincerely hold a conscientious belief which precludes the action required may apply to be exempt from the duty.
3.3 Some legislation has addressed religious objections exclusively. This reflects a view that a distinction can properly be drawn between a conscientious belief based on a religious doctrine and a conscientious belief not so based. However, the decided cases have affirmed that the term “conscience” of itself is not to be restricted by the ambit of “religion”.5 Nor is the term “religion”’ to be defined restrictively. The Chief Justice of the High Court of Australia warned in the Jehovah’s Witness Case6 that “each person chooses the content of his own religion” and “[i]t is not for a court upon some a priori basis, to disqualify certain beliefs as incapable of being religious in character”.7 We first describe legislation which deals exclusively with religious conscientious objection and then legislation providing an exemption on the more general ground of conscientious objection.
II. RELIGIOUS EXEMPTION
3.4 The New South Wales and Federal electoral statutes both recognise that voting on a Saturday may offend some religions. Accordingly, each provides for electors to apply for a postal vote on the ground that they are unable, because of their membership of a religious order or their religious beliefs, to attend at a polling booth on polling day or during the greater part of polling day.8
3.5 The State electoral legislation was amended in 1928 to make voting at State elections compulsory. At the same time the concerns of those with a religious objection to voting was recognised. The amendment created the offence of failing to vote without a valid and sufficient reason9 and specifically provided that one example of such a reason would be “an honest belief on the part of an elector that abstention from voting is part of his religious duty.”10 (Such a belief, however, does not excuse a failure to enrol.11) The procedure for making known the objection is to state it on the notice advising of the failure to vote which will be sent by the New South Wales Electoral Commissioner.12 It is the Electoral Commissioner who must be satisfied that the reason stated is a valid and sufficient one.13 The Act does not purport to confine the term “valid and sufficient reason” to religious objections and an objection on non-religious conscientious grounds might be included. The Electoral Commissioner, in fact has received advice to this effect from the State Crown Solicitor, who also noted that it can be a difficult matter to distinguish conscientious beliefs of a religious character from those not having that character.14 As a matter of practice the Electoral Commissioner does not excuse non-religious conscientious objectors.
3.6 When voting at local government elections was made compulsory in 1947, the provisions of the Parliamentary Electorates and Elections Act 1912 were adapted and inserted in the Local Government Act 1919. That Act now provides that one valid and sufficient reason for failing to vote at a local government election is that the person honestly believes that abstention from voting is part of his or her religious duty.15
3.7 The Commonwealth Electoral Act 1918 does not specifically excuse conscientious objectors from voting at federal elections. In 1983 the Act was amended to provide that an elector who fails to vote may be excused if he or she shows cause why proceedings should not be instituted against him or her for failing to vote without a valid and sufficient reason.16 Arguably, conscientious objection on religious or other grounds would be a valid and sufficient reason. Prior to the 1983 amendment the practice was to excuse only those objecting on religious grounds.17
3.8 The Prevention of Cruelty to Animals Act, 1979 recognises religious practices by creating a defence based on certain religious rites to what would otherwise be offences under that Act. In 1928 a religious exemption was added to the Prevention of Cruelty to Animals Act, 1901 in the following terms:
Nothing in this Act shall render unlawful
(a) the slaughtering of any animal in any manner which may be necessary to comply with the requirements of the Jewish or other religion;18
The new Prevention of Cruelty to Animals Act 1979 permits slaughtering according to Jewish religious law to be set up as a defence to a charge under the Act.19 The defence could be extended by regulations to other religions, but no such regulations have yet been promulgated.
3.9 We should point out that there are examples of legislation which in certain circumstances, override a person’s religious convictions. An example is emergency medical treatment. Medical treatment or procedures applied without the patients consent cart as a general rule, be the subject of a suit for trespass or battery.20 Usually a parent must consent if treatment is to be given to a child.21 A 1983 amendment to the Medical Practitioners Act 1938 22 provides that a parents refusal to give consent to medical treatment may be overridden if two medical practitioners are of the opinion that the child is in imminent danger of dying and that the treatment is necessary to save the child s life.23 It has been suggested that this provision could, for example, override the objections of a Jehovah’s Witness to a blood transfusion or of a Christian Scientist to any form of medical treatment.24
III. EXEMPTION ON THE GROUND OF CONSCIENTIOUS BELIEF GENERALLY
3.10 In 1951 the New South Wales Industrial Arbitration Act, 1940 was amended to provide that people holding a conscientious objection to union membership on religious grounds could be exempted from membership.25 In 1953, for the first time in New South Wales, legislation was passed to provide for absolute preference to unionists in industries covered by an award or industrial agreement, and tor compulsory unionism.26 At that time a new section was introduced which provided that a person objecting on the grounds of conscientious belief to being a member of a union and who satisfied the Industrial Registrar of New South Wales that the objection was genuine could obtain a certificate of exemption from union membership.27 The term “conscientious belief” was not limited to religious grounds but was defined to include “any conscientious belief whether the grounds thereof are or are not of a religious character and whether the belief is or is not part of the doctrine of any religion.”28 The new preference provision was subjected to a challenge in the High Court29 and, before the challenge was determined, the legislation was amended to provide that the industrial tribunal, on an application by a union would insert preference clauses in the relevant award. The 1953 provisions concerning conscientious objection were incorporated into the new section.30 A similar definition was incorporated into the Commonwealth Conciliation and Arbitration Act 1904 when provision was made for the granting of exemption certificates to non-unionists having a conscientious objection to union membership.31 This exemption was modelled on the provision in the New South Wales Act.32
3.11 The National Service Act 1951 exempted “persons whose conscientious beliefs do not allow them to engage in any form of naval, military or air force service” from liability to perform national service.33 The appeal provisions were strengthened in 1953.34 The amendment also clarified the meaning of “conscientious beliefs”:
... a conscientious belief is 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.35
The Defence Act 1903, which provides for compulsory service in the defence force in time of war for all adult males to age 60, does not exempt conscientious objectors as such.36 Among a short list of exemptions are “ministers of religion”, “members of a religious order”, and people training to become such a minister or member.”37
IV. JURY SERVICE
3.12 The only Australian juries legislation to recognise the interests of conscientious objectors explicitly is the South Australian Juries Act 1927. When that Act was amended in 1965 to extend the qualification for service to everyone enrolled as an elector for the House of Assembly (omitting the former property qualification) and to make women liable to serve on juries, statutory recognition was given to the existing practice of excusing jurors who had a conscientious objection to jury service.”38 The Sheriff of South Australia, like the presiding judge, is empowered, if he thinks fit to excuse any person from attendance on the basis of “ill-health, conscientious objection, or any other reasonable cause”.39 The objection must be verified by statutory declaration.40 The Sheriff of South Australia has informed us that “conscience” applications have related mainly to religious beliefs against judging others. He could recall only one such application on other than religious grounds during the preceding five years.41
I refused the application and placed the juror, at his request, before a judge to enable my decision to be reviewed. The judge also refused the application and the juror performed jury service.42
In contrast those with a religious objection are generally automatically excused by the Sheriff on the basis of their statutory declaration. The Sheriff stated that less than 0.5 per cent of people summoned for jury service apply to be excused on the ground of conscientious belief and that the provision has not been subject to abuse by people seeking to avoid jury service.43
3.13 In Victoria, although there is no explicit provision in the legislation for excusal on the ground of conscientious belief, excusal on this ground is available in practice. The Sheriff of Victoria has power to excuse a person for reasons of special urgency or importance among others.44 The Sheriff has advised us that, in his view, conscientious objection to jury service, on religious grounds or otherwise, is of sufficient importance to warrant excusal.45 The Sheriff requires the application to be supported by an oath affidavit, statutory declaration or otherwise in writing.46 and is empowered to excuse a successful applicant for the whole or any part of the period of a current jury list.47 If the Sheriff refuses an application, the applicant may appeal to the presiding judge.48 Alternatively, he or she may make an initial application to that judge, but only if there was good reason for failing to apply to the Sheriff.49 The judge may likewise excuse the applicant if satisfied by proof on oath, affidavit, statutory declaration or otherwise in writing that he or she ought to be excused “by reason of any illness or incapacity or any other matter of special urgency or importance”.50 The Sheriff of Victoria has advised us that he knows of no occasion on which an application by a conscientious objector to be excused has been refused. The need for an appeal to the presiding judge has not arisen.51
3.14 In Western Australia the Sheriff may issue a certificate of permanent exemption to any person who establishes that he or she is permanently disabled, permanently disqualified or exempt because of age, or has been convicted of a crime or misdemeanour and has not received a free pardon.52 Alternatively, a person may be excused from attendance on a particular occasion. The summoning officer may of his or her own motion and “on such evidence as he deems sufficient” excuse from attendance any person who has been summoned as a juror.53 No guidelines are provided in the Western Australian Juries Act 1957 for the exercise of this discretion. The Sheriff of Western Australia has advised us that applications to be excused on the ground of conscience are normally granted.54 While most such applications are for religious reasons, no distinction is drawn between objectors for religious reasons and others. The Sheriff added that judges in Western Australia prefer that summoning officers deal with all applications for excusal from jury service.55
3.15 The Sheriff of the Northern Territory has no power to determine applications to be excused. Such applications, supported by a statutory declaration, must be directed to a Master of the court or to the presiding judge. The Northern Territory Juries Act 1962 empowers the judge or Master to excuse people by reason of “ill-health or any matter of special urgency or importance”.56 The Sheriff has advised us that applications to be excused which are based on the ground of conscientious belief are usually granted and that no distinction is drawn between objectors on religious grounds and other conscientious objectors.57 The Sheriff of the Australian Capital Territory has a concurrent power with the presiding judge to excuse a juror from attendance by reason of circumstances of sufficient importance or urgency.58
3.16 The Sheriff of Queensland is empowered to excuse a person from attendance as a juror by reason of, among other things, “good cause”.59 The Acting Sheriff has advised us that he is not aware of any application for excusal on the ground of conscientious objection in recent years.60 He did not address the question whether he, or a presiding judge,61 would accept the ground as being a “good cause” if it were to be raised.
3.17 In Tasmania, the Registrar has a general power to excuse a person on “reasonable grounds” being shown.62 However, the Registrar of that State believes that he has no power under that general provision to excuse people from serving as jurors on the ground of conscientious belief.63 He considers that the term “reasonable grounds” does not include that ground.64 An application on this ground must therefore, be made to the presiding judge. The Registrar has advised us that these applications rarely succeed.65 In his view, to allow such applications would open the door to a flood of frivolous claims.66
3.18 Summoning officers in the United Kingdom may excuse prospective jurors for “good reason”.67 If a summoning officer refuses to excuse such a person, he or she may appeal to the presiding judge before whom he or she is summoned to appear as a juror.68 A 1973 Practice Direction establishes that conscientious objectors may be excused from serving.
A juror should be excused if he is personally concerned in the facts of the particular case, or closely concerned with a party to the proceedings or with a prospective witness. He may also be excused at the discretion of the judge on grounds of personal hardship or conscientious objection to jury service ...69
Suggestions that conscientious objectors should be entitled to claim an excusal or exemption as of right were rejected by the Departmental Committee on Jury Service in its 1965 Report.
... we cannot think that excusal as of right would be an appropriate way of dealing with this problem. In our view such persons should apply for excusal in the normal way, and we have no doubt that summoning officers and courts will deal with their applications sympathetically.70
3.19 In New Zealand, as in South Australia, specific provision is made for conscientious objectors. The New Zealand juries Act 1981 provides that certain classes of people shall be disqualified from serving as jurors or simply “shall not serve”.71 There is no list equivalent to Schedule 3 of the New South Wales Jury Act setting out those who may claim an exemption as of right. Instead, the New Zealand Act provides for two separate classes of excusal by the Registrar. With respect to the first class, the Registrar may excuse a person who would suffer undue hardship or serious inconvenience because of the nature of his or her occupation or because of personal circumstances such as family commitments and state of health, if required to serve. Alternatively, the hardship or inconvenience may be shown to affect some other person or the general public.72 In contrast a second class is entitled to be excused on a particular occasion upon making a written application supported by such further evidence as the Registrar may require.73 This class includes practising members of religious sects or orders which hold jury service to be incompatible with their tenets.74 The Registrar has advised us that he determines applications from religious objectors solely on the basis of the letter of application and does not require further particulars or seek to interview any applicant. He is confident that the tone and substance of the letter sufficiently indicates its genuineness. Of some 120 people summoned to attend at courts each week in the Wellington district, an average of one per week is a religious objector, usually a member of the Exclusive Brethren, the Jehovah’s Witnesses or other sect. They are invariably excused from serving by the Registrar.75 If the Registrar should decline an application the applicant may appeal to the presiding judge.76 The judge, apart from reconsidering the Registrars decision has a discretion to excuse on the wider ground of “conscience, whether or not of a religious character.”77 The Registrar has advised us that a presiding judge rarely has to deal with a non-religious objector.78 In contrast to the South Australian provision, then, the New Zealand Juries Act establishes a different excusal procedure for religious conscientious objectors from that applicable to non-religious conscientious objectors. We have been unable to discover the reasons for creating this distinction.
3.20 This review of legislation and practice shows that while there is a general acceptance of the importance of recognising conscientious beliefs in order to exempt an objector from jury service and other civic duties, there is no uniform treatment of the issue in legislation. In some cases the exemption is confined to religious objections; in others it extends to more general moral objections. It is provided for specifically in some legislation and implicitly in other legislation There is, as well, no common method prescribed by the legislation to test conscientious objectors. In. some legislation it is made the task of administrators like the Sheriff, the Industrial Registrar and the Electoral Commissioner; elsewhere, it is made the task of a judge or magistrate. In some cases both administrators and judges have a role in the prescribed procedure.
FOOTNOTES
1. United States v. Macintosh (1931) 283 U.S. 605, at p.633, per Hughes C.J.
2. Commonwealth Parliamentary Debates, House of Representatives, 31 March 1977, p.837.
3. Id., 18 March 1953, p.1296.
4. Commonwealth Parliamentary Debates. Senate, 31 May 1983, p.1024.
5. See The Queen v. The District Court of the Northern District of the State of Queensland and Others; ex parte Thompson (1968) 118 C.L.R. 488, at p.498, per McTiernan J.
6. Adelaide Company of Jehovah’s Witnesses Incorporated v. The Commonwealth (194 3) 67 C. L.R. 116.
7. Id., at p. 124, per Latham C.J.
8. Parliamentary Electorates and Elections Act, 1912, s.1 14A(E) (e); Commonwealth Electoral Act 1918 (Cth.), s.184(1)(h).
9. Parliamentary Electorates and Elections Act, 1912, s.120F(a).
10. Ibid.
11. Id., s.34.
12. Id., s.120C(1).
13. Id., s.120D(3).
14. Advice from State Crown Solicitor, New South Wales to Electoral Commissioner, New South Wales, dated 15 June 1962, attached as an annexure to letter from Mr. A.L Barnett, Electoral Commissioner, New South Wales, to New South Wales Law Reform Commission, dated 19 March 1984.
15. Local Government An 1912, s.74 F(a).
16. Commonwealth Electoral Act 1918 (Cth), s.128A.
17. Telephone communication with Mr. Sirulis, Deputy Electoral Commissioner, Commonwealth. 19 November 1984.
18. Prevention of Cruelty to Animals Act 1901, s.7A.
19. Prevention of Cruelty to Animals Act 1979, s.24(c) (i).
20. Murray v. McMurchy [1949]2 D.L.R 442.
21. Minors (Property and Contracts) Act 1970, s.49(1).
22. Medical Practitioners (Emergency Medical Treatment) Amendment Act, 1983.
23. Medical Practitioners Act 1938, s.49B.
24. New South Wales Anti- Discrimination Board, Discrimination and Religious Conviction (1984), paras.4.69,4.81.
25. Industrial Arbitration Act 1940, s.20(2), as inserted by Industrial Arbitration (Amendment) Act 1951, s4(a)(iv).
26. Industrial Arbitration Act 1940, s.12913, as inserted by Industrial Arbitration (Amendment) Act 1953, s.6.
27. Industrial Arbitration Act, 1940, s.129B(11)(b).
28. Id., s.129B(11)(a).
29. New South Wales Parliamentary Debates, Legislative Assembly, 18 November 1959, p.2126, per Mr. A. Landa
30. Id., p. 2127
31. Conciliation and Arbitration Act 1904 (Cth), s.47.
32. Re Application of Jacques Aper under S.144A (1978) 35 F.L.R. 388 at p.392.
33. National Service Act 1951 (Cth), s.29(1)(b). The power to require registration for national service has not been used since 1972.
34. National Service Act 1951 (Cth), s.29A, as inserted by National Service Act 1953 (Cth), s.3.
35. National Service Act 1951 (Cth), s.29A (5).
36. Defence Act 1903 (Cth), s.59.
37. Id., s.61A(1)
38. South Australian Parliamentary Debates, House of Assembly, 1 July 1965, p,660, per Mr. D.A. Dunstan.
39. Juries Act 1927-1984 (S.A.), s.16(1).
40. Ibid.
41. Letter form Mr J A Carr, Sheriff, South Australia, to New South Wales Law Reform Commission, dated 11 January 1984.
42. Ibid.
43. Ibid.
44. Juries Act 1967 (Vic.) s. 13(1)(a).
45. Letter from Mr J.W. Mulvey, Sheriff, Victoria, to New South Wales Law Reform Commission, dated 4 January 1984.
46. Juries Act 1967 (Vic.), s.13(1).
47. Ibid.
48. Id., s.13(2)(a).
49. Ibid.
50. Id., s.12(2)(a).
51. See note 45.
52. Juries Act 1957 (W.A.), s.34A(2).
53. Id., s.27(1).
54. Letter from Mr D.L Nicholls, Sheriff, Western Australia, to New South Wales Law Reform Commission, dated 30 December 1983.
55. Ibid.
56. Juries Act 1962(N.T), s.16(1): and see s.18A.
57. Letter from Mr. R. Hocking, Deputy Sheriff, Northern Territory, to New South Wales Law Reform Commission, dated 26 June 1984.
58. Juries Ordinance 1967 (ACT), s.14(d).
59. Jury Act 1929 (Qld.), s.26(1) (f)
60. Letter from Mr. E.F. Green, Acting Sheriff, Queensland, to New South Wales Law Reform Commission dated 30 December 1983.
61. Jury Act 1929 (Qld.), s.26(4).
62. Jury Act 1899 (Tas.), s.7B(1).
63. Letter from Mr J. Dale, Registrar, Tasmania, to New South Wales Law Reform Commission, dated 6 January 1984.
64. Ibid.
65. Ibid.
66. Ibid.
67. Juries Act 1974 (U.K.), s.9(2).
68. Id., s.9(3),(4).
69. See [1973] 1 All E.R. 240, per Lord Widgery C.J.
70. Report of the Departmental Committee on Jury Service (U.K., 1965), para.153.
71. Juries Act 1981 (N.Z.), ss.7-8.
72. Id., s.15(1).
73. Id., s. 15 (3).
74. Id., s. 15 (2).
75. Telephone communication with Mr. W. L’Estrange, Sheriff, High Court of New Zealand, June 1984.
76. Juries Act 1981 (N.Z.), s.15(4).
77. Id., s.16(c).
78. See note 75.
