I. INTRODUCTION
4.1 As we have seen some Australian statutes imposing civic duties, including the duty to join an industrial union, the duty to vote at state and local government elections, the duty to perform military service and, in one case, the duty to perform jury service, provide that people holding conscientious beliefs opposing the performance of those duties may apply to be exempt from so doing. We have also seen that included in this legislation are procedures for testing the sincerity or genuineness of a conscientious belief to determine whether or not to grant the exemption claimed. All public authorities required to make such decisions can seek guidance from a number of decided Australian cases, particularly those brought before the courts during the Vietnam War under the Commonwealth National Service Act 1951. In the process of interpreting statutory provisions, these cases define the content of a conscientious belief and establish the principles upon which sincerity or genuineness may be tested.
II. THE CONTENT OF A CONSCIENTIOUS BELIEF
4.2 Australian courts have defined a conscientious belief as a belief based on a seriously and deeply-held moral conviction whether or not part of a religious doctrine or creed.1 The cases refer to a compelling moral conviction,2 and stress its durable, though not unchangeable, quality.3 In an unreported decision, the Chief Justice of Western Australia aptly summarised the concept when he said:
... 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.4
This statement has twice been approved by the High Court of Australia5 Both High Court cases concerned conscientious objectors to compulsory military service during the Vietnam War, as did the case of Wright6 in the Supreme Court of New South Wales where it was said:
To determine whether an applicant holds beliefs of [the relevant kind under the National Service exemption provision], it is relevant to have regard to the nature, depth and durability of the beliefs said to be held and, in particular, to ascertain whether they are a matter of conviction or of mere intellectual persuasion... It is not enough to demonstrate that an applicant is persuaded of the correctness of the views of others and believes those views to be correct; it must be shown that there is a deep-seated conviction that those views are right and that the conviction represents something more than persuasion and in a general sense operates to influence the actions of the applicant.7
These statements were approved by the Federal Court of Australia in 1978 in a case involving a person who had a conscientious objection to membership of a registered trade union In this case8 the Federal Court stated:
... the fact that the section had its origin ... in provisions requiring the existence of a conscientious belief founded in religious grounds indicates the depth of conviction which is required. It involves an innate conviction of what is morally right and morally wrong.9
There is, then no dispute in the Australian case law as to what, in principle, constitutes a conscientious belief. The more difficult questions which acceptance of this principle raise are how such a belief is demonstrated and who should test it.
III. TESTING A CONSCIENTIOUS BELIEF
4.3 In Australia various courts, tribunals and administrative officials have, over a substantial period, been required to test conscientious beliefs in the context of applications for exemption from civic duties imposed by legislation. The courts, in explaining this testing process, have been consistent in stating that the sole task of any person required to test a conscientious belief is to determine the genuineness of the particular applicant’s conviction and not to consider the reasonableness, wisdom or correctness of its content.10 For example, the Chief Justice of Tasmania, in an early compulsory national service case, stated:
The only question I have to determine is whether the appellant does in fact conscientiously object to service.... And if I find that he does then my own view of the cogency or otherwise of the reasons upon which he holds the objection becomes immaterial, since it is of the essence of freedom of conscience that a man may hold to his conscientious conviction irrespective of whether a judge or any other person thinks that he ought. Nor do I think that I should be too ready to impugn the bona fides of his objection because of some inconsistency in the views which he puts forward, or of evidence of instances of divergence between his behaviour and his principles, since the compatibility of such phenomena with sincerity is unfortunately a commonplace of human experience. Of course, these things may in some cases point to the fact that the applicant is an imposter .... but their import in each is to be determined in the light of the circumstances and the Court’s idea of the character of the applicant.11
This statement has been expressly approved by the Supreme Court of South Australia,12 and a similar approach has been taken by a judge of the Queensland District Court:
I am aware that logic is not necessarily the criterion indicating the sincerity of a belief claimed to be entertained. I am aware that it is possible for an expressed belief to be regarded by most other persons as fanatical, illogical and ridiculous, and that this could be beside the point whether or not the belief was sincerely held.13
4.4 The person testing such a belief would therefore generally be seeking evidence that the applicant held the objection as a moral conviction. Such evidence might be directed to things done in the past by the applicant to further the moral view he or she asserts in its particular context, or it might be directed to the applicant’s demonstrated concern with moral issues generally. The decided cases are clear in saying that there is no fixed requirement of a particular kind of evidence necessary to establish a genuine conscientious objection in every situation. How a genuine conscientious belief is tested is perhaps best demonstrated by examining the practice of a number of administrative officials in carrying out their duties under particular legislation.
IV. THE PRINCIPLES APPLIED
4.5 One administrative officer who is required to consider applications for exemption on the ground of conscientious belief is the Industrial Registrar of New South Wales. He applies the accepted definition of conscience developed by the courts in decided cases and takes the view that in granting an exemption application under his particular legislation he must be satisfied that:
- first the applicant is genuine and honestly and in good faith holds the view claimed;
- secondly, the beliefs held are in fact part of a conscientious belief, and are not just mere intellectual persuasions; and
- thirdly, the conscientious belief in fact goes to the principle of industrial unionism, and thus joining any industrial union of employees and not just a particular union or unions.14
Once so satisfied, the Registrar “is not concerned with the truth or reasonableness of the belief, and accepts applications based on the widest concept of conscience”.15
4.6 The procedure for dealing with applications for exemption from union membership in the New South Wales Industrial Registry is as follows.16 Applications for exemption are submitted on a prescribed form, which invites an applicant to support the application with reasons. Applications are automatically referred to the Industrial Registrar, or his Deputy, who decides most cases solely on the information provided by the applicant on the form. The bulk of applications processed without further inquiry are based on religious grounds. This reflects the fact that the majority of all applications for this exemption are based on religious grounds. When an application form does not contain sufficient information to satisfy the Registrar that the conviction asserted is genuine, a formal hearing is held. The union from which the applicant wishes to be exempt is advised and may be present The hearing before the Registrar usually involves both the Registrar and the representative of the union putting questions to the applicant who may also make a statement independently of questioning. In practice, applicants are rarely represented and rarely call witnesses. The purpose of the hearing is to provide the Registrar with the information he needs to apply the criteria listed in paragraph 4.5 above. The majority of applications, whether based on religious or on non-religious grounds, which have proceeded to a hearing, are successful. There is no evidence that non-religious objectors are less likely to succeed than religious objectors. We are informed that the number of non-religious objectors to union membership is very small and that the Industrial Registrar does not experience particular difficulty in dealing with their applications.
4.7 The Sheriffs of South Australia, Victoria and Western Australia also deal with conscientious objectors as part of their administrative duties. They, too, apply the principles established by the Australian cases in considering applications to be excused from jury service. The Sheriff of South Australia has advised us that he would approve an application based on religious beliefs which is made as prescribed, namely, by statutory declaration “unless some other matter caused me to seek further information.”17 He observed that this would be very rare.18 The Sheriff of Western Australia has stated that:
It is normal practice to excuse a person from jury service on the grounds of conscience if the summoning officer is satisfied the application is genuine.19
Applicants to be excused complete a statutory declaration “giving an explanation of their conscientious beliefs”.20
4.8 These examples illustrate that the principles established by the Australian cases as to the definition of “conscientious belief” and as to the means of testing the sincerity or genuineness of such a belief are readily applied by administrators in the course of determining applications for exemption from certain civic duties. In three Australian States, Sheriffs determine applications for exemption or excusal from jury service and it is our view that the Sheriff of New South Wales could, without difficulty, also determine similar kinds of applications.
FOOTNOTES
1. 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.
2. Grondal v. Minister of State for Labour and National Service, 11 September 1953, Supreme Court of Western Australia, per Dwyer C.J.; The Queen v. The District Court of the State of Queensland and Others: ex parte Thompson (1968) 118 C.L.R. 488, at p.497, per McTiernan J.; Re Application of Jacques Aper under S.144A (1978) 35 F.LR. 388, at p.406; and Wright v. Minister for Labour and National Service (1969) 14 F.L.R. 91.
3. 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.492, per Barwick C.J.; Wright v. Minister for Labour and National Service (1969) 14 F.L.R. 91.
4. Grondal v. Minister of State for Labour and National Service, 11 September 1953, Supreme Court of Western Australia, per Dwyer C.J.
5. R v. The District Court of the Metropolitan District Holden at Sydney and Others; ex parte White (1966) 116 C.L.R., 644, at pp.660-661 L per Windeyer J.; 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.497, per McTiernan J.
6. Wright v. Minister for Labour and National Service (1969) 14 F.L.R. 91.
7. Id., at p.99, per Mason J.A.
8. Re Application of Jacques Aper under S.144A (1978) 35 F.L.R. 388.
9. Id., at p.406, per Sweeney, Evatt and St John JJ.
10. In re J.D.A.T Walker, 29 May 1942, Supreme Court of Tasmania, per Morris C.J.; King v. Minister of State for Labour and National Service [1953] S.A. S.R. 199, at p.206, per Ross J.; Aitken v. Minister of State for Labour and National Service (1965) 1 D.C.R. 164; In re Appeals from Registrar under Industrial Arbitration Act, 1940-1953, s.129B(11) [1954] I.R. (N.S.W.) 71, at p.81; and Collett v. Minister for Labour and National Service (1966) 9 F.L.R. 221, per Andrews D.C.J.
11. In re J.D.A.T. Walker, 29 May 1942, Supreme Court of Tasmania, per Morris C.J.
12. King v. Minister of State for Labour and National Service [1953] S.A.S.R. 199, at p.206, per Ross J.
13. Collett v. Minister for Labour and National Service (1966) 9 F.L.R. 221, per Andrews D.C.J.
14. Letter from Mr. G.K Robertson, Deputy Industrial Registrar, New South Wales, to New South Wales Law Reform Commission, dated 29 March 1984.
15. Ibid.
16. Ibid.
17. Letter from Mr. J.A. Carr, Sheriff, South Australia, to New South Wales Law Reform Commission, dated 11 January 1984.
18. Ibid.
19. Letter from Mr. D.L Nicholls, Sheriff, Western Australia, to New South Wales Law Reform Commission, dated 30 December 1983.
20. Ibid.
